People v. Coulthard ( 2023 )

Filed 3/30/23; Certified for Publication 4/19/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049755
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1913451)
v.
DAVID COULTHARD,
Defendant and Appellant.
A jury convicted defendant David Coulthard (Coulthard) of abducting his eight-
year-old daughter after he failed to return the child to her mother in the United Kingdom
(Pen. Code, § 2781). For this offense, the trial court suspended imposition of sentence
and placed Coulthard on probation for two years.
On appeal, Coulthard raises six claims of error. He contends there was
insufficient evidence for his conviction, his prosecution violated the prohibition against
ex post facto laws, the trial court violated his rights to due process and to present a
defense, the remote, two-way audio/video testimony of the child’s mother violated his
confrontation rights, and the cumulative effect of the asserted errors requires reversal of
his conviction.
1
Unspecified statutory references are to the Penal Code.
For the reasons explained below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In April 2020, the Santa Clara County District Attorney filed an information
charging Coulthard with a single count of felony child abduction of M.C. on or about and
between April 16, 2019, and August 14, 2019 (§ 278; count 1).2
In September 2021, the jury found Coulthard guilty as charged.
In January 2022, the trial court suspended imposition of sentence and placed
Coulthard on probation for two years with various conditions.
Coulthard timely appealed.
B. Evidence Presented at Trial
1. Prosecution Evidence
Coulthard and Marie Coulthard married in July 2010.3 Their child, M.C., was
born in February 2011. In 2014, while living in the United Kingdom (UK), Coulthard
and Marie separated. They divorced in 2015. Coulthard subsequently married a woman
who lives in the United States and moved to Campbell, California.
In the initial UK family court proceedings (which began in 2014), a judge ordered
that M.C. should live with Marie and granted visitation to Coulthard. In December 2017,
Coulthard initiated a proceeding in the UK family court and requested that M.C. be
allowed to live with him (in England) instead of with Marie. After holding a hearing, on
December 20, 2017, a UK family court judge ordered that M.C. should continue to live
2
We refer to the child by her initials to protect her privacy interests. (See Cal.
Rules of Court, rule 8.90(b)(4).)
3
We refer to Marie Coulthard by her first name to distinguish her from defendant
Coulthard.
2
with Marie and Coulthard should continue to have visits with M.C. (hereafter the
December 2017 custody order or the custody order).4
Twice prior to April 2019, the UK family court allowed Coulthard to take M.C. to
the United States for visits. At the end of those visits, Coulthard returned M.C. to the
UK. In April 2019, pursuant to the December 2017 custody order and with Marie’s
agreement, M.C. traveled to the United States with Coulthard for a visit scheduled from
April 5, 2019, to April 16, 2019.5
On April 16, Marie received an e-mail from Coulthard stating that he would not be
bringing M.C. back to the UK. Marie did not give Coulthard permission to keep M.C. in
the United States beyond April 16. After receiving Coulthard’s email, Marie contacted
her attorneys, petitioned the UK “High Court,” and, on April 17, obtained an emergency
order from the High Court for the return of M.C. to the UK (hereafter the return order).6
On the morning of April 24, a Campbell Police Department officer served
Coulthard with the return order at a residence in Campbell. When serving the return
order, the officer explained to Coulthard some of the information in it, including that he
had until April 26 to return M.C. to the UK. The officer also told Coulthard, “At that
point [M.C.] would be deemed a ward of the court and all passports with her name will
be surrendered. And if [Coulthard] failed to do so [(i.e., return M.C.)] by that time, that
he would be held in contempt of the court, imprisoned, fined, and his assets could be
seized.” The officer testified that the return order itself indicated service on Coulthard
was required by April 20, but the officer did not receive the order until April 24.
4
The December 2017 custody order was admitted into evidence at Coulthard’s
trial.
5
Unless otherwise indicated, all dates were in 2019.
6
At trial, Coulthard objected to the admission of the return order on hearsay
grounds, but the trial court overruled that objection and admitted the return order into
evidence.
3
M.C. was not returned to the UK in April, and Marie did not have any contact with
M.C. from April 5 through August 14. The Campbell Police Department investigated
M.C.’s abduction and surveilled the residence in Campbell. On July 24, a police officer
observed Coulthard leave the home and return with M.C.
Marie arrived in the United States on August 13. On August 14, the police
recovered M.C. while she was at a school district office for testing and reunited her with
Marie. That same day, the police arrested Coulthard.
2. Defense Evidence
Coulthard testified as the only defense witness. Coulthard said that he had lived in
Mauritius from May 2010 to August 2011. He met Marie there and married her in July
2010. Coulthard explained that their relationship “started to get[] sour when [Marie] was
one month into her pregnancy” with M.C. He said Marie’s “lies started being quite
clear.” She “had extreme temper tantrum problems,” but he “could not leave her” and
“would not leave her. She was pregnant. [He] was not going to leave [his] daughter.”
M.C. was born in Mauritius in February 2011, and Coulthard moved back to the
UK in August 2011. One year later, Marie moved to the UK on a spousal visa. Marie
brought M.C. with her to the UK. Subsequently, Coulthard declined to sign Marie’s
application for an extended visa because “[s]he had been abusing” him and M.C. “for 16
months” and “[t]hreatening to make false allegations against [him] if [he] did anything to
stop her [from] getting her ten-year visa.” In 2014, without notice to Coulthard, Marie
obtained a temporary restraining order against him. However, a permanent order “was
dismissed.” Around the same time that she sought the restraining order, Marie submitted
a UK visa application based on alleged domestic violence victimization. Although she
obtained such a visa, it subsequently was revoked.
Coulthard testified that he believed the UK family court’s December 2017 custody
order had been fraudulently obtained because Marie’s “2014 residency permit [] had been
4
revoked in 2016.” Coulthard asserted he did not appeal the December 2017 custody
order because he was not able to afford a lawyer.
On April 15, from California, Coulthard sent an e-mail to Marie explaining that he
was not going to return M.C. to the UK. On April 24, the police served Coulthard with
the return order, which was four days after the order should have been served according
to its terms. Coulthard described the return order as based on a Marie’s “fraudulent, no-
notice, ex parte application.” He also said that it “was impossible” for him to comply
with the return order by the designated date.
Coulthard contacted a solicitor in the UK on April 22 and spoke to the solicitor
four days later. The “purpose of the discussion” was “to talk about the validity of the
Hague Convention and [Coulthard’s] grounds to retain [M.C.]”7 The solicitor informed
Coulthard of two options for responding to the return order: engaging in the Hague
Convention process that Marie had initiated or returning to the UK with M.C. Coulthard
decided to pursue the option that related to the Hague Convention. He did not engage in
the other option given the timing of the service of the return order and the potential for
arrest if he returned to the UK with M.C. after the designated date.
Coulthard appealed the return order in the UK, and the case was referred to “an
authority known as ICACU.” Thereafter, a May 3 court order “adjourned [Marie’s]
application to have [M.C.] returned.” Coulthard understood this to mean that the return
order was no longer in effect. He also believed that Marie failed to follow through on a
May 7 application she made to the ICACU. He asserted that Marie discontinued her
7
We understand Coulthard’s reference to the “Hague Convention” as a reference
to the Hague Convention on the Civil Aspects of International Child Abduction (22
U.S.C. § 9001 et seq.) (hereafter the Hague Convention or the Convention). Under the
Hague Convention, “if a court finds that a child was wrongfully removed from the child’s
country of habitual residence, the court ordinarily must order the child’s return. There
are, however, exceptions to that rule.” (Golan v. Saada (2022) ___ U.S.___, 142 S.Ct.
1880, 1887.)
5
efforts under the Hague Convention “[o]n advice of the prosecutor,” the Campbell police
intervened, and the prosecutor commenced this prosecution.
On cross-examination, Coulthard testified that during the December 2017 hearing
in the UK family court, he told the judge about his concern that Marie did not have a
valid domestic violence visa. Coulthard acknowledged that between the date of the
December 2017 custody order and the beginning of M.C.’s visit in April 2019, he did not
apply to modify or change the custody order, and he had never challenged the custody
order. He also acknowledged he had agreed with Marie to return M.C. to the UK by
April 17 and that in failing to return M.C. to Marie, he had violated the December 2017
custody order. He stated further that when he was arrested in August 2019, he was not
aware of the potential criminal consequences of retaining M.C. in violation of the
December 2017 custody order.
Coulthard said he married his second wife in August 2017. Between February and
March 2018, he decided to live with her in Campbell; she applied on his behalf for a
conditional green card. Shortly before M.C.’s April 2019 visit, Coulthard learned that he
had been approved by the United States for an unconditional green card.
Coulthard acknowledged that the UK court’s return order stated he had a right to
“ ‘seek legal advice’ ” and warned that “ ‘[t]his right does not entitle [him] to disobey any
part of this order until [he] ha[s] sought legal advice.’ ” He understood the return order to
mean “[t]hat it’s important to get legal advice. I’ve got the right to legal advice. But I
also need to obey what’s been asked in it, in this civil court order, yes.”
Coulthard testified further that he “talked to a specialist on the Hague Convention
who said that America was obliged to stick to the rules of the Hague Conventions. And
that means you have to give me the right to show my good faith reasons to retain [M.C.],
and that never happened.” When asked if he “thought there were no criminal
consequences for [his] unlawful retention of [M.C.] here in the United States,” Coulthard
answered, “I had not committed a criminal offense; so, of course, that’s what I believed.”
6
Coulthard testified that, based on M.C.’s report of abuse by Marie, he decided to
keep her in the United States for her protection. He acknowledged that in his April 2019
e-mail to Marie, he said that Marie could send letters to M.C., but he would “ ‘check any
message’ ” she sent and only give them to M.C. “ ‘if appropriate.’ ” Coulthard also
admitted that he and his wife (an elementary school teacher and a mandated child-abuse
reporter) did not contact any child protective services agency, adding, “We did not want
to retraumatize [M.C.] by doing that.”
II. DISCUSSION
In this appeal, Coulthard contends: (1) because the UK court’s return order was
never registered with a California court, that order has no force in California and there is
no substantial evidence that he lacked a right of custody to M.C.; (2) because the Santa
Clara County District Attorney sought to enforce orders of a foreign court, his
prosecution for violating those orders violates the prohibition against ex post facto laws;
(3) the district attorney’s effort to enforce a foreign court order without complying with
federal law violated his due process rights; (4) the trial court violated his right to present
a defense; (5) the trial court violated his confrontation right when it allowed Marie to
testify remotely and without first holding a hearing; and (6) the cumulative effect of the
asserted errors requires reversal of his conviction.
We address Coulthard’s claims in turn.
A. Sufficiency of Evidence for Conviction Under Section 278
Coulthard asserts that for him to be convicted under section 278, “the people must
show that there was a valid custody order in place.” He contends that because the UK
High Court’s return order “has not been registered it is unenforceable in this state” and
“cannot be sufficient to sustain a conviction under [section] 278.” He further argues that
7
because the return order is unenforceable in this state, “substantial evidence does not
support the finding that [he] lacked a right of custody pursuant to [section] 278.”8
The Attorney General responds that any lack of registration pursuant to the
Uniform Child Custody Jurisdiction and Enforcement Act (Fam. Code, § 3400 et. seq.)
(UCCJEA) “does not invalidate an international custody order.” The Attorney General
further asserts that because the “custody order issued in the United Kingdom awarded
primary custody to Marie and only visitation to” Coulthard, “[t]he evidence established
that Marie Coulthard was M.C.’s lawful custodian and [Coulthard] had no right of
custody.”
1. Legal Principles
When reviewing the evidence for legal sufficiency, our task is limited. We
determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We make this determination
using the statutory language (see People v. Delgado (2013) 213 Cal.App.4th 660, 667),
because “the plain language of our statute must control as to the acts which constitute the
crime.” (People v. Descheneau (1921) 51 Cal.App. 437, 439, citing People v. Barry
(1892) 94 Cal. 481; see also People v. Arias (2008) 45 Cal.4th 169, 177.) We apply de
novo review to the meaning of statutory language. (People v. Posey (2004) 32 Cal.4th
193, 218.)
We further determine whether the entire record “ ‘contains substantial evidence—
that is, evidence that is reasonable, credible, and of solid value—from which a reasonable
8
Based upon his briefing, it appears that Coulthard’s claim of error challenges
only the lack of registration of the return order, not the December 2017 custody order.
The Attorney General responds to Coulthard’s claim with argument regarding the
December 2017 custody order, not the return order. There is no evidence in the record
indicating that either order was registered in California, and the jury instructions did not
specifically describe the order. In closing argument, the prosecutor focused primarily on
the December 2017 custody order but also mentioned the return order.
8
trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v.
Powell (2018) 5 Cal.5th 921, 944; see also Jackson v. Virginia (1979) 443 U.S. 307, 318–
319.) “In applying this test, we . . . presume in support of the judgment the existence of
every fact the jury could reasonably have deduced from the evidence.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) “We ‘must accept logical inferences that the jury
might have drawn from the circumstantial evidence.’ ” (Ibid.) “ ‘We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’
[Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the
jury’s verdict.” (Ibid.)
Section 278 sets forth the offense commonly known as child abduction or child
stealing. “Child stealing has always been considered in California to be a crime against
the parent, not the child. It is designed to protect parents against the anxiety and grief
which necessarily follow from the taking of their children.” (People v. Campos (1982)
131 Cal.App.3d 894, 899 (Campos).) Section 278 punishes “[e]very person, not having a
right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any
child with the intent to detain or conceal that child from a lawful custodian.” (§ 278; see
also § 277 [defining terms appearing in § 278, including “ ‘right to custody’ ” and
“ ‘[l]awful custodian’ ”].9)
9
Section 277 provides, inter alia, the following definitions: “(b) ‘Court order’ or
‘custody order’ means a custody determination decree, judgment, or order issued by a
court of competent jurisdiction . . . that affects the custody or visitation of a child, issued
in the context of a custody proceeding. An order, once made, shall continue in effect
until it expires, is modified, is rescinded, or terminates by operation of law. [¶] (c)
‘Custody proceeding’ means a proceeding in which a custody determination is an issue
. . . . [¶] (d) ‘Lawful custodian’ means a person, guardian, or public agency having a
right to custody of a child. [¶] (e) A ‘right to custody’ means the right to the physical
care, custody, and control of a child pursuant to a custody order as defined in subdivision
(b) . . . . [¶] . . . [¶] (h) ‘Visitation’ means the time for access to the child allotted to any
person by court order.” (§ 277.)
9
The trial court here instructed the jury on section 278 with CALCRIM No. 1250,
stating: “To prove that the defendant is guilty of this crime, the People must prove that:
[¶] l. The defendant maliciously took, enticed away, kept, withheld, or concealed a child
from her lawful custodian; [¶] 2. The child was under the age of 18; [¶] 3. When the
defendant acted, he did not have a right to custody of that child; [¶] [and] [¶] 4. When
the defendant acted, he intended to detain or conceal the child from the child’s lawful
custodian.” (CALCRIM No. 1250.) The court further instructed, in pertinent part: “The
right to custody means the right to physical care, custody, and control of the child
according to the law or because of a court order. A parent with liberal visitation does not
have a right to custody of the child. [¶] Visitation means the time ordered by a court
granting someone access to the child.” (Ibid., italics omitted.)
2. Analysis
We are not persuaded that Coulthard’s conviction for a violation of section 278 is
unsupported by substantial evidence or otherwise legally insufficient because of a failure
to register in California any UK court order. As described above, section 278 concerns
child custody in two respects. First, the statute only applies to persons “not having a right
to custody” of the child. (§ 278.) Second, a violation of section 278 requires that the
accused person have acted with the intent to detain or conceal the child “from a lawful
custodian.” (Ibid.) Section 277 defines a “ ‘[c]ourt order’ or ‘custody order’ ” in relevant
part as “a custody determination decree, judgment, or order issued by a court of
competent jurisdiction . . . that affects the custody or visitation of a child, issued in the
context of a custody proceeding.” (§ 277, subd. (b).) Neither section 277 nor section 278
mentions any provision of the UCCJEA or states that a non-California custody order
must be registered with a California court for such an order to serve as proof of the
elements of child abduction.
The evidence demonstrated that, as of April 17, Marie was M.C.’s lawful
custodian, as that term is defined in section 277, subdivision (d). Specifically, Marie had
10
a “ ‘right to custody’ ” over M.C. (i.e., “the right to the physical care, custody, and
control” of M.C.) “pursuant to a custody order as defined in [section 277,] subdivision
(b)” (§ 277, subd. (e)), namely the UK family court’s December 2017 custody order.
That order said M.C. “shall live with the Mother Ms. Marie Emeline Coulthard.” It also
specified certain circumstances under which Marie had to “make the child available to
spend time with [Coulthard]” and set forth directions regarding agreed-to vacations.
More specifically, the custody order provided, inter alia: Coulthard and Marie (the
“ ‘parties’ ”) “ ‘shall not remove [M.C.] from England and Wales without an order of the
court or arrangement between the parties by email or text;’ ” “The parties are to provide
each other with details of any intended holiday 3 weeks before the intended departure
date” including a “copy of [the] return ticket for the child;” and “The father is to return
the child’s British passport to the mother 4pm 48 hours after he returns the child to the
jurisdiction of England and Wales after any holiday.”
The evidence further established that the UK family court that issued the
December 2017 custody order is a “a court of competent jurisdiction.” (§ 277, subd. (b).)
Coulthard initiated the court proceeding that resulted in the December 2017 custody
order, and both Marie and Coulthard testified about their participation in the UK family
court’s multi-day hearing. The custody order (which Coulthard did not appeal in the UK
courts) and the corresponding trial testimony provided substantial evidence that the UK
family court was a legitimate one, empowered to adjudicate the custody of M.C. (See
Lightfoot v. Cendant Mortgage Corp. (2017) 580 U.S. 82, 91 [“A court of competent
jurisdiction is a court with the power to adjudicate the case before it.”]; see also Beroiz v.
Wahl (2000) 84 Cal.App.4th 485, 494 [“Generally, ‘[a] foreign judgment will be res
judicata in an American court if it has that effect in its country of rendition, and if it
meets the American standard of fair trial before a court of competent jurisdiction.’ ”].)
The trial evidence further showed that the December 2017 custody order affected
the “custody or visitation” of M.C. and was issued by the UK family court “in the context
11
of a custody proceeding.” (§ 277, subd. (b).) As mentioned, in making its order after the
multi-day proceeding, the UK family court rejected Coulthard’s request that M.C. be
allowed to live with him and directed that M.C. should live with Marie. The order
required Marie to make M.C. available to spend time with Coulthard under certain
conditions and allowed for agreed-to vacations outside England and Wales.
In accordance with the directives in the December 2017 custody order, Marie
agreed to M.C.’s April 2019 trip to the United States with Coulthard for the period of
April 5 to April 16. Further, regarding the conditions governing M.C.’s trip, Coulthard
admitted at trial that he had agreed with Marie to return M.C. to the UK by April 17 but
did not do so. He also admitted that he had violated the December 2017 custody order by
retaining M.C. beyond April 17. Thus, all the requirements for proving that Marie was
the lawful custodian of M.C. and Coulthard maliciously kept or withheld M.C. with the
intent to detain or conceal her from Marie were satisfied by substantial evidence.
Relatedly, there is substantial evidence proving that Coulthard had no “ ‘right to
custody’ ” (§ 277, subd. (e)) of M.C. after the agreed-upon return date because, under the
December 2017 custody order, M.C. was supposed to live with Marie, and Coulthard had
agreed to return M.C. to Marie by April 17. That is, as of April 17, Marie (not
Coulthard) had “the right to the physical care, custody, and control” of M.C. pursuant to
the custody order and the parties’ agreement about the trip to the United States. (Ibid.)
Thus, irrespective of the subsequent UK High Court’s return order, issued on April 17,
the district attorney presented sufficient proof of Coulthard’s guilt, beyond a reasonable
doubt, for violation of section 278 as charged in the information.
Furthermore, we reject Coulthard’s argument that his conviction is unsupported
because “[n]o evidence was presented that the [return order] was registered in
California.” The status of the return order does not affect the substantiality of the
evidence against Coulthard. Coulthard’s guilt is sufficiently supported by the December
12
2017 custody order and the other evidence concerning Marie’s and Coulthard’s custody
rights.
In any event, the lack of registration in California of either the December 2017
custody order or the return order under the UCCJEA is immaterial to the question of
whether the district attorney satisfied the elements of section 278 at Coulthard’s trial. As
noted above, section 277, subdivision (b), makes no mention of the UCCJEA or any
registration requirement under that act when defining a “ ‘[c]ourt order’ or ‘custody
order’ ” for the purposes of determining who is a “ ‘[l]awful custodian’ ” (id., subd. (d))
or a person “not having a right to custody” under section 278. Moreover, the UCCJEA
does not contain a criminal sanction. Instead, the UCCJEA governs a separate civil legal
process for child custody determinations.
“The UCCJEA determines the proper jurisdictional situs as between interested
states for litigation of child custody determinations—which includes virtually any
custody or visitation dispute.” (In re Marriage of Kent (2019) 35 Cal.App.5th 487, 493;
see also In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 491.) A foreign country is
treated as if it were a state of the United States for purposes of applying certain
provisions of the UCCJEA, and a child custody determination made in a foreign country
under factual circumstances in substantial conformity with the jurisdictional standards of
the UCCJEA must be recognized and enforced in California unless the foreign country’s
child custody law violates fundamental principles of human rights. (Fam. Code, § 3405.)
Additionally, Family Code section 3445 sets forth a procedure for registering an out-of-
state custody order. “Once an out-of-state custody order is registered in California under
the UCCJEA[,] . . . as a matter of full faith and credit, the order determining child
custody is enforceable in California as a California judgment by way of any relief
normally available under California law.” (Kent, at p. 494.)
The UCCJEA affords certain powers to district attorneys, but the Family Code
makes clear that those powers do not limit the authority of district attorneys in other
13
contexts. Specifically, in a case arising under the UCCJEA or involving the Hague
Convention, a district attorney is “authorized” to proceed, under Family Code section
3130, to act with respect to children taken or detained in violation of a custody order but
“may not represent any party.” (Fam. Code, § 3455.) In addition, Family Code section
3135 provides that the UCCJEA “does not limit the authority of a district attorney or
arresting agency to act pursuant to this chapter, [s]ection 279.6 of the Penal Code, or any
other applicable law.” (Fam. Code, § 3135.) As such, the Family Code distinguishes but
does not limit the powers of the district attorney in the criminal law context.
The issue of Coulthard’s guilt or innocence under section 278 is not one that
concerns the existence or exercise of jurisdiction for a child custody determination. Nor
is it one regarding enforcement of a custody order by an involved party or by the district
attorney in an effort to “locate the party and the child and to procure compliance with the
order to appear with the child for purposes of adjudication of custody.” (Fam. Code,
§ 3130.) Rather, the issue in this criminal prosecution of Coulthard is whether a UK
court order and other evidence satisfies the terms of sections 277 and 278. Because the
terms of sections 277 and 278 do not explicitly or implicitly reference the UCCJEA,
“[w]e cannot insert what has been omitted . . . or rewrite the statute to conform to a
presumed intention that is not expressed.” (Lewis v. Clarke (2003) 108 Cal.App.4th 563,
567.)
We thus conclude that, under section 278, the prosecution was not required to
prove that a foreign court order or custody order used to prove Coulthard’s guilt had
previously been registered in California pursuant to the UCCJEA. (See People v. Lortz
(1982) 137 Cal.App.3d 363, 368–369 [concluding that, under former section 278.5,
subdivision (a), “it was not necessary for the mother to first obtain a judicial finding by
the family law court that the visitation order had been violated by defendant before a
criminal charge could be filed against him”]; id at p. 369 [and stating that the “pure
purpose of the statute is to provide for criminal sanctions for violations of custody and
14
visitation orders” and “the criminal sanctions were intended to be in addition to the civil
contempt and modification already provided for under family law”].)
In sum, the evidence here proved that, under the terms of section 278, Coulthard
did not, during the dates charged in the information, have a right to custody of M.C. The
jury heard substantial evidence that on those dates Marie was M.C.’s lawful custodian
and Coulthard maliciously kept or withheld M.C. with the intent to detain or conceal her
from Marie. We thus conclude that there is sufficient evidence from which a reasonable
juror could find beyond a reasonable doubt that Coulthard violated section 278.
B. Ex Post Facto and Due Process Right to Notice
Coulthard contends that “[e]ven if this Court were to hold that an unregistered
foreign court order is a valid custody order for the purposes of [section] 278, the
conviction still must be vacated [because] it violates the prohibition against ex-post facto
laws.” He asserts that “[t]here is no reasonable interpretation of [section] 278 that would
put [him] on notice that violating an order of a court of the United Kingdom, that has
never been registered with any Court in the United States, could subject him to criminal
penalties in this country.”
“The basic principle that a criminal statute must give fair warning of the conduct
that it makes a crime has often been recognized by [the United States Supreme] Court.”
(Bouie v. City of Columbia (1964) 378 U.S. 347, 350–351.) That constitutional
protection is one based on due process principles, not the Ex Post Facto Clause.
“Although ‘limitations on ex post facto judicial decisionmaking are inherent in the notion
of due process,’ the due process clause does not require the application of strict ex post
facto principles in the context of judicial decisionmaking. [Citation.] Rather, judicial
decisions are reviewed under ‘core due process concepts of notice, foreseeability, and, in
particular, the right to fair warning.’ ” (People v. Sandoval (2007) 41 Cal.4th 825, 855,
quoting Rogers v. Tennessee (2001) 532 U.S. 451, 456, 459 (Rogers).)
15
On the other hand, the Ex Post Facto Clause prohibits “[a]ny law that applies to
events occurring before its enactment and which disadvantages the offender either by
altering the definition of criminal conduct or increasing the punishment for the crime.”
(People v. Rojas (2015) 237 Cal.App.4th 1298, 1306; see U.S. Const., art. I, § 10; Cal.
Const., art. I, § 9.) In Rogers, the United Supreme Court explained that “[t]he “Ex Post
Facto Clause, by its own terms, does not apply to courts. Extending the Clause to courts
through the rubric of due process thus would circumvent the clear constitutional text. It
also would evince too little regard for the important institutional and contextual
differences between legislating, on the one hand, and common law decisionmaking, on
the other.” (Rogers, supra, 532 U.S. at p. 460, italics omitted.) The Supreme Court thus
concluded “that a judicial alteration of a common law doctrine of criminal law violates
the principle of fair warning, and hence must not be given retroactive effect, only where
it is ‘unexpected and indefensible by reference to the law which had been expressed prior
to the conduct in issue.’ ” (Id. at p. 462.)
To the extent that Coulthard relies on the Ex Post Facto Clause to support his
claim of error, we reject his contention because he fails to show any legislative change to
section 278 that made criminal what was an innocent action when that action was
undertaken.
We also reject Coulthard’s due process argument that “no reasonable
interpretation” of section 278 provided him fair warning that he could be found guilty
based on an unregistered UK court order. As explained ante (see pt. II.A.2), section 277
defines a “ ‘custody order’ ” broadly and does not suggest that a non-California custody
order must be “registered” before it can provide a basis for determining whether a person
has a “ ‘right to custody.’ ” Further, Coulthard does not point us to any case holding that
a person who retains a child in violation of an unregistered, out-of-state custody order
could not properly be convicted under section 278.
16
Because it was entirely foreseeable under the terms of section 278 that Coulthard
could be convicted based on a custody order “issued by a court of competent jurisdiction”
outside of California, we conclude that there was no violation of Coulthard’s due process
right to fair notice. (See People v. Yarbrough (2012) 54 Cal.4th 889, 895, fn. 1; People v.
Wharton (1991) 53 Cal.3d 522, 586.)
C. Due Process and Federal Law Preemption
Coulthard contends that “[a]ny enforcement of a foreign court[’]s unregistered
custody order, without following the Hague Convention[’]s notice and procedure
requirements, violates the Supremacy Clause of the United States Constitution” and is
preempted by federal law. In addition, Coulthard asserts that because this case is
governed by the provisions of the Hague Convention, his due process rights were
“violated when he did not receive a hearing prior to M.C.’s removal” (capitalization
omitted) and “the only appropriate remedy is that the charges against [him] be
dismissed.”
“The Hague Convention provides a legal mechanism for the prompt return of a
child taken by one parent across international borders in violation of the other parent’s
custodial rights. [Citations.] A petitioner under the Hague Convention bears the burden
of proving the child’s wrongful removal or retention by a preponderance of the evidence.
[Citation.] If the petitioner succeeds in showing a wrongful removal, the Hague
Convention requires repatriation of the child to its country of habitual residence unless an
exception to repatriation exists. [Citation.] One exception is that the child’s repatriation
presents a grave risk of physical or psychological harm to the child. [Citation.] This
exception must be established by clear and convincing evidence.” (In re Marriage of
Emilie D.L.M. & Carlos C. (2021) 64 Cal.App.5th 876, 881–882.) Furthermore, “[i]t is
the Convention’s core premise that ‘the interests of children . . . in matters relating to
their custody’ are best served when custody decisions are made in the child’s country of
‘habitual residence.’ ” (Monasky v. Taglieri (2020) ___ U.S. ___, 140 S.Ct. 719, 723.)
17
Regarding preemption, Coulthard contends that “[t]he application of [section] 278,
without following Hague Convention procedure would result in obstacle preemption.”
Under the principle of obstacle preemption, “a state may not adopt laws impairing ‘the
accomplishment and execution of the full purposes and objectives of Congress.’ ”
(People v. Rinehart (2016) 1 Cal.5th 652, 660.) “In ascertaining whether preemption
applies, ‘[c]ongressional intent is the touchstone.’ [Citations.] Obstacle preemption can
play an important role in preventing states from creating, inadvertently or otherwise,
functional impediments that materially constrain legitimate federal objectives. But it can
also lead to the overzealous displacement of state law to a degree never contemplated by
Congress. Accordingly, the threshold for establishing obstacle preemption is demanding:
‘It requires proof Congress had particular purposes and objectives in mind, a
demonstration that leaving state law in place would compromise those objectives, and
reason to discount the possibility the Congress that enacted the legislation was aware of
the background tapestry of state law and content to let that law remain as it was.’ ” (Id. at
p. 661; see also Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 706 (Ariana K.)
[“A treaty may be not be construed as preempting state law or any court procedures in the
absence of a clear intent to do so.”].) Coulthard “bears the burden of demonstrating
preemption.” (Rinehart, at p. 660.)
Coulthard’s preemption argument depends on the premise that the Hague
Convention and section 278 address the “same subject matter” (capitalization omitted).
We reject that conclusion. “The goal of the Hague Convention is to protect children from
the effects of their wrongful removal from their nation of habitual residence. [Citations.]
The expressly stated primary objects of the Hague Convention are two-fold. The first
object is to secure the return of a wrongfully removed child who is retained in a nation
who is a signatory to the treaty. The second object is to ensure that custody and visitation
rights under the law of treaty signatories are respected by other parties to the Hague
Convention.” (Ariana K., supra, 120 Cal.App.4th at pp. 704–705, fn. omitted.) Put
18
differently, “the Hague Convention is a civil remedy adopted to effect the return of
children brought to other countries.” (United States v. Ventre (9th Cir. 2003) 338 F.3d
1047, 1052, italics omitted.) “The Convention includes no criminal punishment for the
abducting parent, nor does it provide for the resolution of the underlying custody dispute.
Its sole objective is to ‘restore the factual situation that existed prior to a child’s removal
or retention.’ ” (United States v. Amer (2d Cir. 1997) 110 F.3d 873, 881.)
By contrast, California’s longstanding criminal prohibition against child abduction
in section 278 is directed at punishing any person who, without a right to custody,
maliciously takes a child with the intent to keep that child from their lawful custodian.
(See § 278.) As such, section 278 vindicates the rights of the victimized custodian, not
the child. (See In re Michele D. (2002) 29 Cal.4th 600, 614; Campos, supra, 131
Cal.App.3d at p. 899; see also Stats. 1976, ch. 1399, § 10, p. 6315.)
Given the distinction between the purposes of the Hague Convention and
California’s penal law, we conclude that Coulthard has not carried his burden of
establishing congressional purposes and objectives that require our state’s penal law be
displaced by the Convention. Because the Hague Convention does not preempt or govern
the criminal prosecution of Coulthard, we also reject Coulthard’s claim that he was
denied due process because he did not receive a hearing pursuant to the Hague
Convention.
D. Right to Present a Defense
Coulthard contends that the trial court denied his constitutional right to present a
defense by: (1) failing to give him “a Hague Convention hearing” which “would have
provided him defenses that are otherwise not available” and “would have also allowed
him to elicit testimony to be used in his defense”; (2) denying him an opportunity to show
that the laws of the UK granted him a right to custody; and (3) foreclosing him from
proving his innocence based on the necessity to protect M.C. from harm. We address
Coulthard’s contentions in turn.
19
1. Hague Convention Hearing
In the trial court, Coulthard did not request a separate hearing under the Hague
Convention to present evidence about the alleged grave risk of harm posed by M.C.’s
return to Marie and M.C.’s objection to any return. Because Coulthard failed to request
such a hearing, we deem his appellate claim of error forfeited. (See People v. Lazarus
(2015) 238 Cal.App.4th 734, 787.) Even if Coulthard’s claim were not forfeited, we
would reject it because he does not provide any authority or persuasive argument that a
superior court presiding over a criminal prosecution must hold a hearing under the Hague
Convention when no application under the Convention is pending in any court. (See 22
U.S.C. § 9003; see also Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th
1126, 1131 [“The courts’ role is to decide cases; the parties’ role is to bring cases before
the courts.”].)
2. Expert Testimony on UK Law
Coulthard claims the trial court erred by denying him “the opportunity to present
the proper interpretation of United Kingdom law as it applies to the custody order.” He
asserts that he was “prepared to present evidence that there is a difference in the
interpretation of the family court agreements between the United Kingdom [and]
California.” He further asserts that under the Hague Convention, UK laws must apply
and “California has no interest in applying its own law concerning the orders governing
M.C.’s custody.”
a. Background
Pretrial, Coulthard filed an in limine motion stating his intention to call “an expert
witness with regard to British family law and its application to this particular case.” The
prosecutor moved in limine to exclude any defense evidence on the meaning of “ ‘right to
custody’ ” under UK law. The prosecutor noted that the December 2017 custody order
directed that M.C. “shall live with” Marie and further asserted that any separate
“ ‘parental responsibility’ ” rights that Coulthard may have had under UK law were
20
equivalent to “ ‘legal custody’ ” in California, which does not amount to a right to
“physical care, custody, and control” under section 277, subdivision (e). The prosecutor
supported this argument with a discussion of People v. Irwin (1984) 155 Cal.App.3d 891(Irwin), which explained that “[t]he status of ‘legal’ custodian is extraneous to the
manifest purpose of section 278 which has to do with physical custody.” (Id. at p. 896,
italics added.)
At a hearing on the in limine motions, Coulthard’s defense counsel said that
“physical custody” of M.C. was “disputed” in this case and the defense had an expert
witness “ready to testify and ready to indicate that, under these circumstances, it’s
reasonable for a judge in London to not necessarily award custody, but it’s a defense for
retention of the child.” Counsel also conceded that the December 2017 custody order
was a valid order but explained that the defense was “contesting that [Coulthard] did not
have a right to retain custody of his daughter.” Counsel further explained that “the crux
of the defense is an expert witness who is familiar with family law -- the rules,
regulations, so forth -- in the United Kingdom. And he will testify that under the Hague
Convention there is a defense to retention of a child in breach of an otherwise valid court
order and that defense in the cases in which the child -- it’s the state of mind of the child -
- has a reasonable belief of being abused, if that -- of being in grave danger if that child is
returned back to the custodial parent, then the noncustodial parent can retain custody of
that child. And it’s again a defense to the breach of the order. That’s . . . the crux of the
defense here. [¶] . . . [¶] . . . It goes to an element of the crime which requires Mr.
Coulthard interfere with a right of an individual who has custody. [¶] . . . [O]ur
contention here is that the mother did not have custody because the child believed that
she was in grave danger -- that she would be in grave danger if she were returned to the
mother.”
The trial court granted the prosecutor’s in limine motion to exclude the testimony,
stating: “This case is going to be dictated by California law, California law as it will
21
acknowledge and pertain to the foreign decrees or judgments of the United Kingdom. [¶]
We are not going to relitigate the merits of that United Kingdom judgment or order. The
defendant had and has a right to challenge those orders in a court of law pertaining to --
or in the United Kingdom pertaining to this family law matter, and we’re not going to
relitigate that issue here. [¶] The question is was there a valid order, and it appears that it
was.”
After defense counsel asked for clarification of the trial court’s ruling, the court
continued: “[T]he People have to prove that the defendant -- when he acted, he did not
have a right to custody. The People have argued that he had no right because the decree
of the court that had the jurisdiction over the family law case in which custody and
visitation were litigated was set forth in that order, and that was -- that is what will bind
this court in establishing that right. [¶] . . . [¶] . . . If there’s an exception to the breach
of those orders, those get litigated in the court that has the jurisdiction, and that’s the
United Kingdom. That existence of the order is what is binding here, and that’s what
we’re going to present to the jury.”
After the prosecutor described certain procedures under the Hague Convention and
noted that Marie had initiated a Hague Convention petition in the UK for M.C.’s return,
the trial court reiterated: “I don’t need to know about the Hague Convention and its
articles and provisions in the context of this criminal case here because that’s not really
issues [sic] that are litigated in these proceedings. [¶] It’s not to say that you don’t have
an alternative forum or [Coulthard] doesn’t have an alternative forum and remedy under
this Hague Convention process that’s outlined by counsel, but that’s not really of an issue
before the Court that I have to be concerned with in dealing with now. [¶] That’s the gist
of why the Court is taking the view that it is and granting this motion excluding defense
evidence of this right to custody under the law of the United Kingdom. That’s not really
at issue before this Court in this proceeding.”
22
b. Legal Principles
A criminal defendant must be afforded a meaningful opportunity to present a
complete defense, subject to the limitations imposed by the rules of evidence. (See
People v. Lucas (1995) 12 Cal.4th 415, 464.) Only relevant evidence is admissible at a
trial. (Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence, including evidence
relevant to the credibility of a witness or hearsay declarant, having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the determination
of the action.” (Id., § 210.) Further, expert witness testimony is admissible if it is
“[r]elated to a subject that is sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact.” (Id., § 801, subd. (a).) “Like other evidence,
expert testimony must be relevant.” (People v. Bowker (1988) 203 Cal.App.3d 385, 390.)
“ ‘The trial court has broad discretion in deciding whether to admit or exclude
expert testimony [citation], and its decision as to whether expert testimony meets the
standard for admissibility is subject to review for abuse of discretion.’ ” (People v.
Brown (2014) 59 Cal.4th 86, 101.) “A trial court’s decision to admit or exclude evidence
. . . will not be disturbed unless there is a showing that the trial court acted in an arbitrary,
capricious, or absurd manner resulting in a miscarriage of justice.” (People v. Wall
(2017) 3 Cal.5th 1048, 1069.) “It is settled that the exclusion of irrelevant evidence does
not . . . impair an accused’s due process right to present a defense.” (People v. Gonzales
(2019) 34 Cal.App.5th 1081, 1090; see also People v. Jones (1998) 17 Cal.4th 279, 305.)
c. Analysis
The trial court did not err when deciding the in limine motions. Viewing the
court’s ruling in the context of defense counsel’s proffer of expert testimony, Coulthard’s
claim of error is not persuasive because the information before the court demonstrated the
existence of a valid custody order within the meaning of sections 277 and 278 that
provided Marie physical custody of M.C. during the period charged in the information.
Under section 277, subdivision (b), a custody order, “once made, shall continue in effect
23
until it expires, is modified, is rescinded, or terminates by operation of law.” (§ 277,
subd. (b).)
Further, defense counsel’s assertion that Coulthard, under UK law, may have been
able to raise a defense to a violation of the December 2017 custody order is inherently
speculative and collateral to the validity of the custody order during the relevant period.
Under the elements of section 278, the relevant question is the status of Coulthard’s and
Marie’s right to physical custody pursuant to a custody order at the time Coulthard took
M.C. (See People v. Ryan (1999) 76 Cal.App.4th 1304, 1314, citing Irwin, supra, 155
Cal.App.3d at pp. 896–897.) Coulthard ultimately testified that he never challenged the
December 2017 custody order in a UK court. Given the speculative and collateral nature
of the proffered expert testimony, the trial court could reasonably have relied on Irwin at
page 891to rule that the proposed testimony about some possible (yet unadjudicated)
defense to a violation of an otherwise valid custody order was irrelevant under applicable
California law. For these reasons, we conclude that the trial court did not abuse its
discretion or otherwise violate Coulthard’s right to present a defense by excluding the
proffered defense expert testimony about UK law.
3. Necessity Defense
a. Background
In a pretrial in limine motion, Coulthard asked to present evidence of a necessity
defense, asserting multiple instances of abuse by Marie on M.C. and himself and stating
that M.C. had indicated she did not want to return to her mother. Relatedly, the
prosecutor moved in limine to preclude the assertion of a necessity defense, arguing that
Coulthard would not be able to prove every element of that defense.
When initially addressing the in limine motions in court, the trial court said
Coulthard had not “completely laid out the particulars of the affirmative defense” in his
motion and the court would “need a little bit more information as to what the proposed
24
evidence and testimony will be on that issue.” The court thus deferred ruling on the
necessity defense issue.
At a subsequent pretrial proceeding, the trial court stated its agreement with the
prosecutor that “the bulk of these incidents” proffered by Coulthard in his motion did not
“rise to the level of the proof that’s required . . . [for a] necessity defense.” Nevertheless,
the court reiterated that if Coulthard’s defense counsel wanted to proffer further, more
substantive evidence, the court would not “deny him that opportunity to do so.” The
court also told counsel that it “will want to know the specific information as it pertains to
what is the underlying basis that leaves or addresses the immediate grave harm that’s at
issue.” Counsel responded to the court by saying, “Okay. Understood.” The court then
continued consideration of the necessity issue to the next day.
On the following day, the trial court reiterated that the parties needed to “address
what [the] actual nature of the immediate emergency is that gives rise to this necessity.”
The prosecutor argued that Coulthard could not rely on hearsay evidence to claim that an
emergency existed (which is an objective standard) and instead had to make “an offer of
proof that somebody competent is going to testify that these things actually occurred.”
Defense counsel responded that “the emergency is the psychological trauma, not whether
[M.C.] was actually hit, not whether she was actually sexually abused, but the
psychological trauma that resulted from whatever conduct [Marie] imposed.” Counsel
argued further that the defense did not “need to prove that those things actually occurred.
We need to prove that [M.C.] suffered psychological trauma and that Mr. Coulthard was
attempting to prevent that from occurring again in the future by retaining her in the
United States.” The prosecutor responded by reiterating that “if there’s no . . . admissible
evidence that establish[es] that these acts actually occurred, then there’s no necessity
defense.”
After the trial court said that it agreed with the prosecutor’s analysis and would
preclude the necessity defense unless defense counsel had a “different offer of proof,”
25
counsel indicated that he “may need to get [M.C.] to testify. 10-year-old girl. Via
video.” The court stated that it needed to hold a hearing with M.C. because when “a
party says a child says something [that] doesn’t necessarily mean that the child said it,
one; two, remembers; three -- four, can articulate what it is that the child is supposed to
recall. [¶] This is a very young child. She’s been through a lot of trauma already. And
so I would ask that you give that some serious consideration, because there are a lot of
procedural obstacles that need to be overcome before the Court is going to allow that.
And so . . . the trial will not be delayed any further for that. We’re moving forward.
We’ve got a jury coming in tomorrow. [¶] So do you have any other evidence to offer
this morning?” After counsel answered “No,” the court continued, “All right. So the
Court’s tentative ruling, then, is that the defense’s motion to allow admission of necessity
evidence is denied. And, by virtue of that, the People’s corresponding motion is
granted.” Coulthard made no further offer of proof during his trial regarding the
necessity defense.
b. Analysis
On appeal, Coulthard claims that the trial court “agreed with the prosecution’s
argument that there was no imminent evil [] from which Mr. Coulthard could claim M.C.
required protection” and erroneously “made this ruling because it did not recognize the
novelty of the international nature of this case.” Coulthard asserts further that because he
did not receive a hearing under the Hague Convention, he was not able to “establish the
elements of the necessity defense prior to the prosecution here.”
We are not persuaded by Coulthard’s contentions. Setting aside that Coulthard
failed to make any argument in the trial court tying a Hague Convention hearing to his
proposed necessity defense, as we have explained ante, no hearing under the Hague
Convention was required in this case. (See pts. II.C & II.D.1.)
26
Furthermore, when viewed in the context of Coulthard’s proffer to the trial court,
there is no merit to his contention that regardless of the Hauge Convention, he would
have been able to “prove all elements of the necessity defense.”
In analyzing Coulthard’s contention, we must discern whether he proffered
“ ‘evidence deserving of consideration from which reasonable jurors could conclude [that
the elements of the necessity defense] have been satisfied.’ ” (People v. Trippet (1997)
56 Cal.App.4th 1532, 1539.) If a defendant fails to establish those elements, the trial
court is justified in excluding the evidence and not allowing the jury to consider the issue
of necessity. (People v. Patrick (1981) 126 Cal.App.3d 952, 960–962 (Patrick).)
“The necessity defense is very limited and depends on the lack of a legal
alternative to committing the crime. It excuses criminal conduct if it is justified by a
need to avoid an imminent peril and there is no time to resort to the legal authorities or
such resort would be futile.” (People v. Beach (1987) 194 Cal.App.3d 955, 971,
superseded by statute on another point as stated in People v. Neidinger (2006) 40 Cal.4th
67, 76–77; see also Patrick, supra, 126 Cal.App.3d at pp. 960–961.)
“To assert a defense of necessity, the defendant must show, by a preponderance of
the evidence, that he or she ‘violated the law (1) to prevent a significant and imminent
evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than
the one avoided, (4) with a good faith belief that the criminal act was necessary to
prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under
circumstances in which [he or] she did not substantially contribute to the emergency.’ ”
(People v. Buena Vista Mines, Inc. (1998) 60 Cal.App.4th 1198, 1202.)
Coulthard failed to offer proof establishing all the elements of the necessity
defense. The trial court correctly observed that Coulthard’s proffer about the imminent
risk of abuse and harm that M.C. might suffer was based, at least in part, on her hearsay
statements that could not be offered to prove the truth of the matter, i.e., the peril she
faced by being with Marie. Moreover, Coulthard failed to show that he had no
27
reasonable legal alternative to prevent any potential harm to M.C. other than keeping her
in the United States. For example, Coulthard made no showing that pursuing legal
remedies in a UK or California court or contacting child protective services in either
locale was not a viable option. In fact, Coulthard admits in his appellate briefing that he
had the option “to again seek redress in the Courts of the United Kingdom” but claims
“this would simply not be reasonable” because he “is a legal permanent resident of the
United States” and “should not be required to seek redress from a foreign sovereign to
protect his child when she is present in the United States.” Leaving aside that M.C. was
in California because Coulthard brought and kept her here, that a particular remedy may
not have been the most convenient or preferred by Coulthard does not make it an
unreasonable alternative to violating California law.
Coulthard did not proffer evidence satisfying all the requisite elements of a
necessity defense. We thus conclude that the trial court did not abuse its discretion or
violate Coulthard’s constitutional rights in excluding evidence regarding a necessity
defense.
E. Remote Witness Testimony and Right to Confrontation
Coulthard contends the trial court violated his constitutional right to confront
witnesses against him by allowing Marie to testify remotely without first holding an
evidentiary hearing. He further claims that even if a hearing had been held, the
prosecution failed to proffer any evidence showing the necessity or reliability of Marie’s
remote testimony.
The Attorney General responds that the trial court “did hold a hearing and ‘hear
evidence’ . . . on Marie’s specific health and travel limitations” (as relayed by the
prosecutor), and Coulthard nonetheless forfeited his argument for an evidentiary hearing
by failing to request such a hearing in the trial court. Additionally, the Attorney General
asserts that the trial court properly made a case-specific determination that Marie’s
28
remote testimony was necessary, and the admission of her testimony did not violate the
Confrontation Clause.
1. Background
Pretrial, in August 2021, the prosecutor filed points and authorities in support of a
motion to allow Marie to testify remotely via two-way audio/video communication
technology. The prosecutor argued that Marie’s remote testimony would not violate
Coulthard’s constitutional right to confront witnesses because the case circumstances met
the requirement for a case-specific finding of the necessity under Maryland v. Craig
(1990) 497 U.S. 836 (Craig).10 The prosecutor asserted that Marie’s remote testimony
was a “reasonable measure that mitigates the risk of spreading [coronavirus disease 2019
(COVID-19)] without unnecessarily infringing upon a defendant’s constitutional rights,”
was justified by the “current state of emergency,” and was authorized by an emergency
court rule.11 The prosecutor further asserted that Marie was unwilling to travel from the
10
In Craig, the United States Supreme Court addressed “whether the
Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a
child abuse case from testifying against a defendant at trial, outside the defendant’s
physical presence, by one-way closed circuit television.” (Craig, supra, 497 U.S. at
p. 840.)
11
Former Emergency Rule 3 of the California Rules of Court provided, in relevant
part: “Notwithstanding any other law, in order to protect the health and safety of the
public, including court users, both in custody and out of custody defendants, witnesses,
court personnel, judicial officers, and others, courts must conduct judicial proceedings
and court operations as follows: [¶] (1) Courts may require that judicial proceedings and
court operations be conducted remotely. [¶] (2) In criminal proceedings, courts must
receive the consent of the defendant to conduct the proceeding remotely and otherwise
comply with emergency rule 5. Notwithstanding Penal Code sections 865 and 977 or any
other law, the court may conduct any criminal proceeding remotely. As used in this rule,
‘consent of the defendant’ means that the consent of the defendant is required only for the
waiver of the defendant’s appearance as provided in emergency rule 5. For good cause
shown, the court may require any witness to personally appear in a particular proceeding.
[¶] (3) Conducting proceedings remotely includes, but is not limited to, the use of video,
audio, and telephonic means for remote appearances; [and] the electronic exchange and
authentication of documentary evidence.” (Cal. Rules of Court, Appen. I, former
Emergency rule 3(a).)
29
UK to the United States to testify because she was not vaccinated against COVID-19, had
sole physical custody of two children (who were too young to be vaccinated for COVID-
19), cared for her third child every other week, did not have family or friends in the UK
who could care for her two children or the money to pay for childcare if she were
required to travel to California to testify, and would have had to quarantine for 10 days
upon her return to the UK. In addition, the prosecutor noted that Marie “cannot be
compelled to travel to the United States because she is beyond this Court’s subpoena
power.” Coulthard opposed the prosecutor’s motion.12
At a pretrial court proceeding, the prosecutor further explained that she could not
force Marie to apply for the “national interest exemption” to a presidential proclamation
that had suspended travel to the United States for certain persons from the UK. In
addition, the prosecutor stated that she was “trying to determine how to even go about
applying for the law enforcement exception” to the presidential proclamation and had not
yet “received any information about what steps are necessary to meet that exception, if
any.”
Coulthard’s defense counsel argued that there was no legal precedent stating that
“the mere existence of the pandemic is sufficient to abridge” a defendant’s constitutional
right to confrontation. Counsel also argued, inter alia, that the prosecutor had failed to
show due diligence in pursuing the exceptions to the presidential proclamation and failed
to provide evidence “with regards to whether remote testimony is necessary to protect the
public health.” Counsel noted that Marie “ha[d] previously been found to be
manipulative and untrustworthy by a court in the United Kingdom,” had chosen not to get
vaccinated, and “shouldn’t be in the driver’s seat with regard to whether Mr. Coulthard
Although the record on appeal indicates that Coulthard’s defense counsel filed a
12
written opposition to the prosecutor’s motion for remote testimony, that opposition is not
included in the record. Coulthard has not filed any motion in this court to augment the
record to include his written opposition. (See Cal. Rules of Court, rules 8.340(c) &
8.320(b).) Moreover, he does not reference the opposition in his appellate briefing.
30
can confront her on the stand in front of a jury.” Counsel also asserted that the
audio/video computer program proposed for Marie’s testimony was “an insufficient
medium.”
The trial court granted the prosecutor’s motion for Marie’s remote testimony,
providing an extensive oral explanation of its ruling. The court observed the issue was a
“complicated” one because it involved the “competing issues” of Coulthard’s rights to a
speedy trial and witness confrontation. The court conducted a “case-by-case” analysis of
the confrontation issue. It addressed the state of the COVID-19 pandemic, noting that it
had to consider and weigh the “realistic and practical concerns and factors” caused by the
pandemic against Coulthard’s right to confront witnesses at his trial.
The court noted that Marie is “a mother of three young children who has indicated
her concerns and her refusal, frankly, to travel to the United States to testify in these
proceedings and the whole absence of a process to compel her to do so.” The court also
cited Coulthard’s right to confront her and have the jurors “assess her credibility, [] view
her demeanor, [] see her attitude and her emotional responses to questions, all of the
indicia and characteristics that the court instructions speak to that are factors that the trier
of fact gets to assess.”
The trial court continued: “The question becomes is live testimony an absolute
requirement of the Sixth [Amendment]. And I think the case law has indicated that there
are exceptions and exemptions from that. [¶] Does this particular case present the high-
bar circumstances that [defense counsel] has indicated, and the Court believes that it
does. [¶] It is clear that this witness is a necessary witness. It is clear to this Court that,
given her refusal to travel to the United States -- even if she were assisted by a third party
in acquiring a visa, there is no indication that she would otherwise travel under the
current circumstances of the pandemic, one; two, that it would pose a hardship to her in
the sense that [] she has no funds to travel, one -- if that were overcome, she still has no
funds to pay for child care, two. Three, upon her return, she would have to isolate for a
31
two-week period is what’s currently prescribed, and during that period she would not
have [childcare] -- the means to pay for [childcare].”
The trial court described defense counsel’s comment about Marie being in the
driver’s seat as “an unfair characterization” when juxtaposed with “defendant’s actions in
keeping the child here.” The court expressed concern “about the reliability and efficacy
of an overseas remote proceeding” but explained that “assuming we get a good
connection and good [application], . . . [Coulthard], through his counsel, and the jurors
will have the opportunity then to confront the witness. The witness will be visible.
She’ll be available to answer questions. [¶] And there is, frankly, [] not a less-restrictive
process available that will at the same time serve the paramount concern. And that is for
the ascertainment of the truth. And we have to afford [Coulthard] his right to a speedy
trial, his right to confront and to cross-examine witnesses. In light of the circumstances
that we’ve been addressing, this is the least-restrictive alternative available to effectuate
that process. [¶] So the Court believes that it is authorized to grant that relief in view of
the emergency orders necessitated because of the pandemic, and to do so under these
circumstances -- and albeit they are limited to this case -- does not violate the
confrontation clause.”
Later, at trial, Marie testified remotely from the UK via two-way audio/video
technology. She began her testimony alone in a room at a friend’s house but then moved
to a room in her own home during the direct examination because of glitches with the
initial audio transmission. After Marie completed her testimony, the trial court described
the “connection and reception” from Marie’s home as “flawless.” The court also
explained that there was “ample time and opportunity for . . . the jurors to observe the
witness. There was clarity in the picture. There was clarity in the audio. The witness
was able to be seen by all parties. Counsel was given substantial time to examine the
witness on all subjects that were approved by the Court.”
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2. Legal Principles
The Confrontation Clause of the Sixth Amendment to the United States
Constitution “ ‘provides two types of protections for a criminal defendant: the right
physically to face those who testify against him, and the right to conduct cross-
examination.’ ” (Coy v. Iowa (1988) 487 U.S. 1012, 1017.) “The right to a face-to-face
meeting between accused and accuser follows from the confrontation clause’s ‘primary
object’: ‘ “to prevent depositions or ex parte affidavits, such as were sometimes admitted
in civil cases, being used against the prisoner in lieu of a personal examination and cross-
examination of the witness in which the accused has an opportunity, not only of testing
the recollection and sifting the conscience of the witness, but of compelling him to stand
face to face with the jury in order that they may look at him, and judge by his demeanor
upon the stand and the manner in which he gives his testimony whether he is worthy of
belief.” ’ ” (People v. Bharth (2021) 68 Cal.App.5th 801, 814 (Bharth), quoting Craig,
supra, 497 U.S. at p. 845; see also Elkins v. Superior Court (2007) 41 Cal.4th 1337,
1358.)
“[W]hile ‘face-to-face confrontation forms “the core of the values furthered by the
Confrontation Clause” . . ., it is not the sine qua non of the confrontation right.’
[Citations.] Rather, ‘ “the Confrontation Clause reflects a preference for face-to-face
confrontation at trial,” [citation], a preference that “must occasionally give way to
considerations of public policy and the necessities of a case.” ’ [Citations.] The face-to-
face requirement can be dispensed with, but ‘only where denial of such confrontation is
necessary to further an important public policy and only where the reliability of the
testimony is otherwise assured.’ [Citations.] This public policy exception is not a
general one; it must be applied on a case-by-case basis.” (People v. Alvarez (2022) 75
Cal.App.5th 28, 35–36 (Alvarez), citing Craig, supra, 497 U.S. at pp. 847–850.)
“The ‘ultimate goal’ of the confrontation clause, ensuring the reliability of
evidence [citation], ‘is a procedural rather than a substantive guarantee. It commands,
33
not that evidence be reliable, but that reliability be assessed in a particular manner: by
subjecting it to the crucible of cross-examination’ and other procedural safeguards.
[Citation.] Those procedural safeguards are: (1) in-person testimony; (2) given under
oath; (3) subjected to cross-examination; and (4) the ability of the defendant and fact
finder to view witness demeanor for the purpose of evaluating credibility. [Citation.]
The ‘combined effect’ of these elements of confrontation ‘ensur[es] that evidence
admitted against an accused is reliable and subject to the rigorous adversarial testing that
is the norm of Anglo-American criminal proceedings.’ ” (Alvarez, supra, 75 Cal.App.5th
at p. 37.)
“ ‘We review de novo a claim under the Confrontation Clause that involves mixed
questions of law and fact. [Citation.] Under this standard, we defer to the trial court’s
determination of “the historical facts” . . . but not the court’s “application of [the]
objective, constitutionally based legal test to [those] historical facts.” ’ ” (Bharth, supra,
68 Cal.App.5th at p. 813; see also Alvarez, supra, 75 Cal.App.5th at p. 36 [de novo
review applies when there are no disputed facts].)
3. Analysis
We begin by considering Coulthard’s argument that the trial court erred by failing
to provide him with an evidentiary hearing before it allowed Marie’s remote testimony.
Coulthard asserts that this failure “should be sufficient for this Court to vacate [his]
conviction [and] order a new trial.” However, Coulthard does not cite to any evidence in
the record that he asked for an evidentiary hearing before the trial court decided that
Marie could testify remotely. Under these circumstances, we agree with the Attorney
General that Coulthard’s claim of error regarding an evidentiary hearing is forfeited by
his failure to request such a hearing in the trial court. (See People v. Lord (1994) 30
Cal.App.4th 1718, 1722; see also People v. Hinton (2006) 37 Cal.4th 839, 898.)
We turn to the question whether the trial court erred by permitting Marie’s two-
way audio/video, remote testimony based on the prosecution’s showing. As an initial
34
matter, we note that the parties have not cited and we have not located any California
appellate court decision examining whether remote testimony in a criminal case during
the COVID-19 pandemic violates the Confrontation Clause. We also observe that the
parties rely on Craig’s two-part analysis of necessity and reliability, even though Craig
addressed the use of one-way closed-circuit television for witness testimony. (See Craig,
supra, 497 U.S. at pp. 846, 851, 855, 857.) Given the lack of any dispute between the
parties (either at trial or on appeal) about the application of Craig’s two-part analysis, we
will assume for purposes of resolving Coulthard’s claim on appeal that that test applies.
(See State v. Tate (Minn. 2023) 985 N.W.2d 291, 294, 299–301 (Tate) [adopting Craig’s
two-part analysis in a case involving witness trial testimony via two-way, remote video
technology during the COVID-19 pandemic]; see also United States v. Carter (9th Cir.
2018) 907 F.3d 1199, 1206 [“We now make clear that a defendant’s right to physically
confront an adverse witness (whether child or adult) cannot be compromised by
permitting the witness to testify by video (whether one-way or two-way) unless Craig’s
standard is satisfied.”]; People v. Lujan (2012) 211 Cal.App.4th 1499, 1504–1506
[discussing Craig in the context of two-way video testimony and holding that child
witnesses shown to be traumatized by face-to-face confrontation may testify remotely,
whether or not those witnesses are victims of an independent crime committed by the
defendant]; People v. Powell (2011) 194 Cal.App.4th 1268, 1281 [stating that “Craig’s
general principles apply” in the context of testimony via two-way closed-circuit
television].)
Coulthard asserts that “the prosecution has failed to present any evidence to
demonstrate that denial of confrontation is necessary for public safety, or to show that the
reliability of testimony is otherwise preserved.” We are not persuaded.
Regarding the necessity prong of the Craig analysis, the People bear the burden to
make an adequate showing that Marie’s remote testimony was necessary in this case.
(See Craig, supra, 497 U.S. at p. 855.) At the time of Coulthard’s trial in August-
35
September 2021, “the pandemic was not a thing of the past nor had the court returned to
business-as-usual.” (Hernandez-Valenzuela v. Superior Court (2022) 75 Cal.App.5th
1108, 1129.) The prosecutor here proffered information regarding the pending state of
emergency and travel restrictions between the UK and United States, including that
Marie (who was unvaccinated) would have to quarantine for several days upon her return
to the UK from California. That information confirmed that “[t]he COVID-19 health
emergency continued to persist and governmental entities continued to be subject to
health orders to limit transmission risk of COVID-19 and contain COVID-19 outbreaks.”
(Ibid.) The prosecutor also asserted, among other things, that Marie was the primary
caretaker of two of her children (both of whom were too young to be vaccinated against
COVID-19) and did not have the means to arrange for alternate childcare. Further,
Marie’s testimony could not be supplanted with testimony from some other person, and
Coulthard had asserted his right to a speedy trial. As such, there was no reasonable
alternative to Marie’s remote testimony at the time the trial court ruled. Under these
circumstances, we conclude that the People met their burden to show that in this case
Marie’s remote testimony was necessary to advance an important public policy. (See
People v. Kocontes (2022) 86 Cal.App.5th 787, 872 [“Ensuring the health of all
courtroom users during the COVID-19 pandemic was an important public policy
concern.”]; Tate, supra, 985 N.W.2d at p. 303; see also Roman Catholic Diocese of
Brooklyn v. Cuomo (2020) ___ U.S. ___, 141 S.Ct. 63, 67 [“[s]temming the spread of
COVID–19 is unquestionably a compelling interest”].)
As for Craig’s reliability prong, although Marie was not physically present in
court, she provided sworn testimony while situated in a room alone without any
distractions. The trial court specifically found that the courtroom audio and video of
Marie’s testimony were of high quality, and the jurors could see Marie clearly. Coulthard
does not argue that these findings were unsupported by substantial evidence. Although
there were some initial technical problems with the audio transmission, the trial court
36
confirmed that “there was sufficient opportunity . . . for the responses to be repeated and
the questions to be repeated such that there was effective examination.” In addition,
counsel for the parties were able to send materials electronically to Marie for her review
during her testimony. All told, the trial court here ensured that Marie’s remote testimony
was reliable and subject to adversarial testing by Coulthard and his defense counsel. (See
Tate, supra, 985 N.W.2d at pp. 304–305.) We decide that, on these facts, Coulthard’s
constitutional right to confront witnesses against him was not violated when the trial
court allowed Marie to testify remotely.
F. Cumulative Prejudice
Having concluded ante that Coulthard’s claims of error lack merit, we in turn
reject his claim of cumulative prejudice resulting from the asserted errors. There is no
prejudicial error to cumulate. (See People v. Hensley (2014) 59 Cal.4th 788, 818.)
III. DISPOSITION
The judgment is affirmed.
37
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Bamattre-Manoukian, J.
H049755
People v. Coulthard
Filed 4/19/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049755
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1913451)
v.
DAVID COULTHARD,
Defendant and Appellant.
BY THE COURT:
The opinion in this case filed March 30, 2023, was not certified for publication.
After the court’s review of a request under California Rules of Court, rule 8.1120(a), and
it appearing that the opinion meets the standards for publication under California Rules of
Court, rule 8.1105, it is therefore ordered that the opinion be published in the Official
Reports.
______________________________________
Danner, J.
_____________________________________
Greenwood, P.J.
_____________________________________
Bamattre-Manoukian, J.
H049755
People v. Coulthard
Trial Court: Santa Clara County Superior Court
Trial Judge: Hon. Jesus Valencia, Jr.
Counsel: Evan D. Williams, The Law Office of Evan D. Williams, for Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Moona Nandi, Deputy Attorney General and Bridget Billeter, Deputy
Attorney General, for Respondent.
H049755
People v. Coulthard