California Penal Code 277, 278, 278.5 PC

PC 277, 278, 278.5 – Child Abduction

PC 277, 278, 278.5 - Child Abduction

Child Abduction – Table of Contents

Child Abduction Penal Code 277, 278, 278.5 Overview

As an experienced criminal defense team, we know just how important it is for us to equip you with the proper knowledge and information you will need to defend your case. In this article, we provide you an overview of the legal restrictions of Child Abduction Penal Code 277, 278, 278.5 Laws by addressing the following:

  • What is Child Abduction Penal Code 277, 278, 278.5 PC?
    1. No Right to Custody
    2. Deprivation of the Right to Custody or Visitation
  • Penalties
    1. Misdemeanor conviction
    2. Felony conviction
  • How does the court determine the penalty?
    1. Aggravating factors
    2. Mitigating factors
  • Legal Defenses
    1. You have a right to custody of the child
    2. The person from whom you took the child was not a legal custodian
    3. You did not maliciously abduct the child or violate elements of the law
    4. You filed a report to the court
  • Definitions of Legal Terms

What is Child Abduction – Penal Code 278 PC?

Under California child abduction Penal Code 278 PC, (commonly referred to as “child stealing”) can be defined as two separate crimes:

  • No Right to Custody (Under Penal Code 278), and
  • Deprivation of the Right to Custody or Visitation (Under Penal Code 278.5)

Essentially, the difference between the two is that the first crime occurs in the absence of legal custody (“No Right to Custody”) and the other occurs by the impeding of another person’s legal right to be with the child (“Depriving Right to Custody”). We will examine these two in full detail below.

  1. No Right to Custody
  2. In order for defendant to be found guilty of child abduction Penal Code 278 PC, the prosecution must prove all of the following elements (or facts) beyond a reasonable doubt

    • The accused maliciously took, enticed away, kept, withheld, or concealed a child from a lawful custodian;
    • The child was younger than 18 years at the time;
    • The accused had no legal right to custody of the child; and
    • The accused acted intentionally to detain or conceal the child from his or her legal custodian.
  3. Deprivation of the Right to Custody or Visitation

In this kind of case, the prosecution must prove all of the following elements beyond a reasonable doubt in order for the defendant to be found guilty:

  • The accused enticed away, kept, withheld, or concealed a child;
  • The child was younger than 18 years of age; and
  • The accused maliciously deprived a lawful custodian of a right to custody, or a person of a right to visitation.

Penalties for Child Abduction – Penal Code 277, 278, 278.5

In California, child abduction Penal Code 277, 278, 278.5 PC is considered to be a “wobbler”—a crime that may be charged by the prosecutor either as a felony or misdemeanor. This is largely dependent on several factors at the discretion of the prosecution and judge. Any person who is charged may face either a

  1. Misdemeanor conviction—imprisonment in county jail up to one year and/or a maximum monetary penalty of $1,000. A misdemeanor conviction is considered a less serious conviction, hence a shorter time and monetary penalties; or
  2. Felony conviction—imprisonment of 16 months in county jail (for Deprivation of the Right to Custody) or imprisonment of two, three, or four years in California state prison (for No Right to Custody); and/or a maximum monetary penalty of $10,000

In addition to these penalties, the defendant may be subject to pay restitution to the prosecuting agency and/or victim(s) involved, or to anyone acting on the victim’s behalf, for any costs reasonably incurred in locating and returning the child to the victim.

How does the Court determine the Penalty for Penal Code 277, 278, 278.5 PC?

  1. Aggravating factors The judge would base his/her decision to charge the child abduction Penal Code 277, 278, 278.5 PC crime as a felony or misdemeanor on certain aggravating factors (factors that would justify harsher punishments) presented by the prosecutor such as:
    • Whether the child was exposed to a substantial risk of physical injury or illness at any time during the abduction;
    • Whether the defendant inflicted or threatened to inflict physical harm on the parent or lawful custodian of the child or the child at any point during the abduction;
    • Whether the defendant harmed or abandoned the child during abduction;
    • Whether the child was taken, kept, or concealed in a foreign country;
    • Whether the child has not been returned to the lawful custodian;
    • Whether the defendant previously abducted or threatened to abduct the child;
    • Whether the defendant substantially altered the appearance or the name of the child;
    • Whether the defendant denied the child appropriate education during the abduction;
    • The length of time during which the abduction occurred; and
    • The age of the child.
  2. Mitigating factors The judge may consider mitigating (or reducing) the charges and sentence imposed to the child abduction Penal Code 277, 278, 278.5 PC crime as a felony or misdemeanor on certain mitigating factors (factors that may help lighten the sentence) presented by the defense attorney such as that the defendant:
    • Returned the child unharmed AND prior to the arrest or issuance of a warrant for arrest (whichever is first);
    • Provided information and assistance leading to the child’s safe return; or
    • Undertook some other action(s) that could qualify as lesser charges.

Legal Defenses to Child Abduction – Penal Code 277, 278, 278.5

defense attorney can successfully assert any of the following defenses while the prosecution must prove each element of charge beyond a reasonable doubt.

I) You have a right to custody of the child

If you are a lawful custodian of the child, you cannot be found guilty of this offense. In court, it has been ruled that a parent entitled to custody cannot be liable for kidnapping his or her own child.

II) The person from whom you took the child was not a legal custodian

The court has held that taking a child from someone who isn’t the lawful custodian of the child is not a violation of child abduction Penal Code 278.

III) You did not maliciously take the child or violate elements of the law

If you held an honest and reasonable good faith belief that the removal of the child from his/her lawful custodian was necessary to prevent any potential or further physical or emotional harm from the custodian, then you cannot be guilty of having malicious intentions.

However, even if a person took actions that fell short of child abduction Penal Code 277, 278, 278.5 PC with malicious intent, the person may still be charged with lesser offenses, such as attempted child abduction Penal Code 277, 278, 278.5 PC.

IV) You filed a report to the court

After the abduction of the child, if you made a report or custody proceeding to the court stating all changes in location, contact information, and intentions within a reasonable time period (10 days for a report, 30 days for custody proceeding), then you may not be found convicted of maliciously abducting a child.

Definition of Terms

Maliciously – When you intend every consequence of every action you take, or you act with the unlawful intent to disturb, annoy, harm, or injure another person.

Enticed away – To “entice” a child away means to attract, seduce, or allure a child by instilling hope and desire in someone. This is quite different than convincing a child by force.

For example, a famous case of People v. Moore (1945) revealed an incident in which the defendant was found guilty of deceiving and enticing a child and his mother. This also ruled that a child agreeing, or consenting, to have gone with the person charged with the crime of child abduction Penal Code 277, 278, 278.5 PC is not a valid defense. You can still be found guilty of child abduction Penal Code 277, 278, 278.5 PC even if the child positively consented to go with you.

Kept, withheld– Retaining of physical possession of a child whether or not the child resists or objects.

Child – A person under the age of 18 years.

Right to custody – The right to physical care, custody, and control of a child granted by either having a court custody order or by being the parents of the child and not having had your custody rights rescinded or limited by the court. [xii]

Lawful custodian (Legal guardian) – A person, guardian, or public agency having a right to custody of a child.

In the case of a joint legal custody between multiple guardians, legal custody is not to be interpreted as joint physical custody. The difference is that joint legal custody allows both of the parents/guardians the right to make decisions for the well-being of the child and important life decisions while physical custody means one parent/guardian has the lawful right to live with the child, and is the parent “having lawful charge”.

Visitation – Time for access to the child allowed to any person by court order.

Note: While one may believe child abduction Penal Code 277, 278, 278.5 PC to be equal to or the same as kidnapping, the two are not to be interpreted as equivalent. As kidnapping is considered a crime against the kidnapped person, child abduction Penal Code 277, 278, 278.5 PC is considered a crime against both the child abducted as well as the parent of the abducted child.

We Want to Help

If you or a loved one is being charged with (Child Abduction) Penal Code 277, 278 or 278.5 PC, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP. We can provide a free consultation in our office located in Century City, or by phone.

Our experienced and assiduous Los Angeles Criminal Defense Lawyers will be sure to fight until the end to reduce or drop your charges completely.

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How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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