Newell v. Superior Court CA3 ( 2023 )

Filed 7/26/23 Newell v. Superior Court CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Nevada)
----
LACIE ELIZABETH NEWELL, C097303
Petitioner, (Super. Ct. No. F20-000357)
v.
THE SUPERIOR COURT OF NEVADA COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
Following a preliminary hearing, real party in interest the People filed an
information against petitioner Lacie Elizabeth Newell alleging that Newell absconded
with her minor daughter L.K. for five months after the trial court granted L.K.’s father
sole custody during an ex parte custody hearing. Newell moved to set aside the
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information on the ground that the People failed to establish a necessary element of the
crime of child abduction. The trial court denied the motion. Newell brought a writ of
prohibition in this court challenging that determination. We stayed the criminal
proceedings and issued an order to show cause. We now conclude that the People failed
to present sufficient evidence that Newell had knowledge that the trial court awarded
L.K.’s father sole custody during the emergency custody hearing, and accordingly reverse
the ruling denying her motion to set aside the information.
FACTUAL AND PROCEDURAL BACKGROUND
A. Evidence presented at the preliminary hearing
Newell and her boyfriend Joshua Kerley had a daughter together, L.K., in
February 2013. In June 2013, Kerley was arrested and charged with felony domestic
violence against Newell. He subsequently pleaded no contest to the charge. Kerley was
placed on probation for five years, but he failed to comply with the terms of probation
and consequently went to jail for six months. When he was released in 2015, Kerley
moved in with Newell and L.K. Shortly thereafter, Newell obtained a domestic violence
restraining order against Kerley, and though they later tried to coparent in the same home,
Newell and L.K. eventually moved out in January 2019. Kerley was given supervised
visits with L.K.
On September 23, 2020, the trial court issued an order granting joint legal custody
of L.K. to Newell and Kerley, with Newell having primary physical custody. The order
also generally described dates and times that Kerley was to have visits with L.K. from
mid-September to mid-November 2020, subject to parental agreement or scheduling
arranged by a designated facility that supervised visitation. In reaching its ruling, the trial
court found that there was no credible evidence to support Newell’s allegations that
Kerley sexually or physically abused L.K., instead finding it likely that Newell had
coached L.K. It further noted that Newell used delay tactics and violated court orders to
frustrate Kerley’s visitations, including “repeatedly changing attorneys,” failing to obtain
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records and comply with a court-ordered evaluation by a doctor, and failing to bring L.K.
to visitation and co-joint therapy sessions. The court cautioned Newell that “a continuing
failure to follow the Court’s orders regarding visitation may result in an immediate
change of custody from mother to father.”
On October 14, 2020, Kerley appeared at an emergency hearing regarding custody
of L.K. A written transcript of the ex parte hearing is not in the record, but Kerley
testified to its contents at the preliminary hearing as follows.
Kerley and his counsel appeared in person at the ex parte proceeding. Newell did
not personally attend the hearing, but Kerley recalled that an attorney representing
Newell appeared telephonically. Kerley did not remember the attorney’s name, but
testified the attorney said he “wanted to be released from the case.” Neither Kerley nor
any other witness provided any further information regarding the attorney’s appearance at
the hearing or thereafter. Kerley testified that he had requested the ex parte hearing
because he had not seen L.K. in “quite a while” and “hadn’t heard anything.” Kerley had
attempted to meet L.K. for their supervised visitations “quite a few” times per their
parenting agreement, but no one brought L.K. to Kerley, and Newell did not
communicate with Kerley regarding the missed visits.
The trial court found that a temporary custody order was needed to “help prevent
an immediate loss or irreparable harm to a party or to children in the case.” It
accordingly granted Kerley temporary sole legal and physical custody of L.K. and set the
matter for further hearing on November 18, 2020. The trial court barred Newell from
visitation with L.K. pending further order of the court.
Thereafter, Kerley promptly went to Newell’s last known address with two police
officers, but no one answered the door. In late October, Kerley hired a private
investigator to help find L.K. The private investigator found a public Facebook post by
someone purporting to post a letter at the direction of Newell. The private investigator
shared the post with a criminal investigator for the Nevada County District Attorney’s
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Office. The district attorney investigator had begun looking for Newell in December
2020. He testified that the letter said Newell was a mother in hiding and that Newell
believed the Nevada County courts were running a human trafficking ring. The e-mail
address connected to the post yielded no leads regarding L.K.’s or Newell’s whereabouts.
In March 2021, the United States Marshals Service located Newell and L.K. in
Santa Barbara. They arrested Newell and placed L.K. in the custody of child protective
services. L.K. was returned to Kerley in April 2021.
B. Procedural history
Based on the evidence presented at the preliminary hearing, the magistrate found
probable cause that Newell committed child abduction within the meaning of Penal Code
section 278.1 Accordingly, the People filed an information alleging that on or about
October 15, 2020, to March 16, 2021, Newell committed a felony violation of section
278.
Newell pleaded not guilty to the charge and moved to set aside the information
under section 995. In doing so, she argued there was no evidence presented that she ever
received notice of the October 2020 emergency order granting temporary sole custody to
Kerley. Thus, she asserted that there was no evidence that when she “acted” under
CALCRIM No. 1250,2 she lacked a right to custody over L.K. The trial court denied the
motion, finding the evidence sufficient for purposes of a preliminary hearing. It set the
matter for trial in November 2022.
1 Undesignated statutory references are to the Penal Code.
2 CALCRIM No. 1250 provides that to prove a defendant guilty under section 278,
the People must prove that (1) the defendant maliciously took or withheld a child from
his or her lawful custodian; (2) the child was under the age of 18; (3) when the defendant
acted, he/she did not have a right to custody of that child; and (4) when the defendant
acted, he/she intended to detain or conceal the child from the child's lawful custodian.
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Newell then petitioned this court for a writ of prohibition directing the trial court
to reverse the order denying the motion to set aside the information. Alternatively, she
sought an order to show cause why the relief requested in her petition should not be
granted and a temporary stay of the trial. We granted the request for a stay and issued an
order to show cause, asking the parties to address, in relevant part, whether constructive
notice of a change in custody satisfies due process.3 The People filed a return, and
Newell filed a reply. We now consider the matter before us.
DISCUSSION
A. Standard of review
Section 995 provides that an “information shall be set aside” if “the defendant has
been indicted without reasonable or probable cause.” (§ 995, subd. (a)(1)(B).) “In
reviewing the denial of a [] section 995 motion to set aside an information, we ‘in effect
disregard[] the ruling of the superior court and directly review[] the determination of the
magistrate holding the defendant to answer.’ [Citations.] . . . . Insofar as [the section
995 motion] rests on consideration of the evidence adduced, we must draw all reasonable
inferences in favor of the information [citations] and decide whether there is probable
cause to hold the defendants to answer, i.e., whether the evidence is such that ‘a
reasonable person could harbor a strong suspicion of the defendant’s guilt.’ [Citations.]”
(Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072.) “But ‘where the facts are
undisputed, the determination of probable cause “constitute[s] a legal conclusion which is
subject to independent review on appeal.” ’ [Citations.]” (People v. Black (2017) 8
Cal.App.5th 889, 898.)
3 We also asked the parties to address whether a parent having joint physical
custody of a child may commit child stealing by taking exclusive possession of the child.
The People conceded that a parent with joint custody cannot be charged with child
stealing under section 278 by taking the child into his or her sole custody. (See People v.
Irwin (1984) 155 Cal.App.3d 891, 896-897.)
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“ ‘ “Evidence that will justify a prosecution need not be sufficient to support a
conviction. . . . An information will not be set aside or a prosecution thereon prohibited
if there is some rational ground for assuming the possibility that an offense has been
committed and the accused is guilty of it. [Citations.]” ’ ” (Hudson v. Superior Court
(2017) 7 Cal.App.5th 999, 1006.) However, “where there is no evidence at the
preliminary hearing of an essential element of the offense, dismissal is required.”
(Barber v. Superior Court (1991) 1 Cal.App.4th 793, 795.)
B. Analysis
A person violates section 278 when that person, “not having a right to custody, . . .
maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to
detain or conceal that child from a lawful custodian.” (§ 278.) Section 277, subdivision
(e) defines “ ‘right to custody’ ” as “the right to the physical care, custody, and control of
a child pursuant to a custody order.” (§ 277.) “[T]he California Supreme Court has made
clear that in the absence of an order or decree affecting custody, a parent does not commit
child stealing by taking exclusive possession of the child. (See Wilborn v. Superior
Court (1959) 51 Cal.2d 828, 830-831.)” (Cline v. Superior Court (1982) 135 Cal.App.3d
943, 947.)
The statute also requires a showing of malice and intent. The word “maliciously,”
as used in section 278, is defined by the Penal Code, meaning “a wish to vex, annoy, or
injure another person, or an intent to do a wrongful act, established either by proof or
presumption of law.” (§ 7, subd. (4), italics added; People v. Simmon (1936) 12
Cal.App.2d 329, 332 [“ ‘maliciously’ ” in section 278 is defined by the Penal Code]; see
also People v. Neidinger (2006) 40 Cal.4th 67, 79 [applying the Penal Code’s definition
of malice to section 278.5].) “ ‘ “[T]he requirement of malice functions to ensure that the
proscribed conduct was ‘a deliberate and intentional act, as distinguished from an
accidental or unintentional’ one.” ’ ” (People v. Jo (2017) 15 Cal.App.5th 1128, 1159.)
The pattern jury instruction accordingly requires proof that when the defendant acted, he
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or she “intended to detain or conceal the child from the child’s lawful custodian.”
(CALCRIM No. 1250.)
Thus, to establish the requisite probable cause to indict Newell, the People had to
present evidence that Newell knew that she lost custody of L.K. and intended to take L.K.
from L.K.’s lawful custodian, Kerley. Acknowledging that no evidence was presented in
the trial court showing that Newell had actual knowledge or notice of the order granting
Kerley temporary sole custody, the People argue instead that Newell’s attorney’s
appearance at the ex parte hearing is sufficient to show Newell had constructive notice of
the order. Newell responds that even if constructive notice through an attorney was
enough to show that Newell had knowledge of the order, Kerley’s testimony about an
unnamed attorney seeking to withdraw was insufficient to establish constructive notice.
We agree with Newell.
The presence of a party’s attorney in court when an order is made is typically
sufficient to show that a party had knowledge of the order. (In re Imperial Ins. Co.
(1984) 157 Cal.App.3d 290, 300.) This is because an attorney is a client’s agent, and
notice to an agent constitutes constructive notice to the principal. (E-Fab, Inc. v.
Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1319.) Nonetheless, evidence
of notice is not precisely equivalent to evidence of knowledge for purposes of a criminal
prosecution. A fact finder may infer knowledge from notice, but notice alone does not
necessarily satisfy the knowledge element in a criminal statute. (See People v. Garcia
(2001) 25 Cal.4th 744, 752 [“a violation of section 290 requires actual knowledge of the
duty to register. A jury may infer knowledge from notice, but notice alone does not
necessarily satisfy the willfulness requirement”].)
Here, we need not decide whether constructive notice is sufficient to show
Newell’s knowledge and intent under section 278 because the People failed to produce
evidence showing that Newell received even constructive notice of the custody order.
The only evidence of notice is Kerley’s vague testimony that an unnamed lawyer
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telephonically appeared on Newell’s behalf at the ex parte hearing and asked to be
removed from the case. The record does not disclose whether the attorney stayed on the
phone for the entire hearing, whether the attorney heard the trial court pronounce its
ruling, or whether the attorney was indeed released from representing Newell at the
hearing. The People also did not produce the ex parte pleadings, a transcript of the
hearing, or a proof of service for the custody order.4 The Judicial Council form
emergency order itself, which is in the record, does not state who appeared at the hearing.
Acknowledging these evidentiary gaps, the People argue that we presume counsel
acted in a professional manner without evidence to the contrary (see People v. Stanley
(2006) 39 Cal.4th 913, 954), and therefore we may presume Newell’s attorney attended
the entire hearing and notified Newell of the resulting order. But here, the only
(secondhand) evidence of the unnamed attorney’s telephonic appearance described the
attorney’s request to withdraw from the case. To presume that the attorney stayed for the
full hearing and notified Newell of the order would be purely speculative in light of her
attorney’s apparent desire to cease representation. (See Forslund v. Forslund (1964) 225
Cal.App.2d 476, 487 [“Where service on an attorney of record is permitted such service
binds the client until the attorney is discharged or substituted out of the case as provided
by law,” italics added].) Thus, we cannot assume that Newell’s attorney complied with
any professional duties following the hearing if he was, in fact, discharged from those
duties at the hearing. Indeed, the trial court previously observed that Newell had
repeatedly changed attorneys throughout the case.
Moreover, it is unclear when Newell stopped communicating with Kerley and
others. The record reflects that even before the October 2020 emergency hearing, Newell
had consistently failed to communicate with Kerley and that her whereabouts were
4 Kerley was required to personally serve Newell with the custody order after the
hearing. (Cal. Rules of Court, rule 5.167(b).)
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uncertain. And it took months for Kerley and investigators to locate Newell. This further
undermines the presumption that Newell’s attorney successfully contacted her and
communicated the contents of the order to her after the hearing. Accordingly, we find
that Kerley’s testimony of Newell’s purported attorney’s telephonic presence is
insufficient to establish probable cause that Newell had knowledge of the ex parte order
and therefore acted with the requisite mental state to support prosecution under section
278.
We also find unpersuasive the People’s argument that one could reasonably infer
Newell knew of the change in custody order based on Newell’s purported letter stating
she was a “mother in hiding.” The letter was posted by a third party on Facebook,
supposedly on Newell’s behalf; there is no evidence that Newell actually wrote the letter.
And even if there was, stating she was a “mother in hiding” does not create a reasonable
inference that Newell was aware of the new custody order. In fact, the record reflects
that Newell consistently kept L.K. from Kerley and failed to communicate with him even
when they shared custody.
Finally, while we agree with Newell that the People failed to present sufficient
evidence of intent under section 278, we reject Newell’s contention that the gaps in the
evidentiary record establish that she was denied due process at the ex parte hearing,
rendering the custody order a nullity. Although we have scant evidence on the process
Newell received, the evidence we do have indicates that Newell’s attorney may at least
have received notice of the proceedings by virtue of his appearance.5 Further, the fact the
5 In this sense, the case Newell relies upon, People v. Johnson (1984) 151
Cal.App.3d 1021, is distinguishable. In Johnson, the court affirmed the dismissal of a
section 278 charge against the father, concluding that a temporary custody order granting
custody to the mother was unenforceable because the order was never served on the
father. (Johnson, supra, at p. 1026.) The court explained that “service of the order was a
prerequisite to termination of his otherwise undoubted custodial rights. [Citation.]
Absent actual knowledge nothing less would satisfy fundamental requirements of due
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trial court granted Kerley’s ex parte request suggests that Newell received process
sufficient to justify issuance of the order. More fundamentally, although there is no
evidence in the record that Newell or her attorney were served with ex parte papers
before the hearing, or that either was served with the custody order, the lack of such
evidence in the record does not prove that Kerley failed to comply with notice and
service requirements. These documents may exist but were inexplicably excluded from
the record; we cannot presume they do not exist and invalidate an order based on pure
conjecture.
We do not condone Newell’s conduct, which appears to have violated at least one
court order. Nevertheless, because the People presented insufficient evidence at the
preliminary hearing of an essential element of a violation of section 278, the information
must be set aside.
DISPOSITION
Although Newell sought relief by way of prohibition, the court exercises its
discretion to grant relief by way of mandate. (See George M. v. Superior Court (1988)
201 Cal.App.3d 755, 760.) Accordingly, let a peremptory writ of mandate issue directing
the respondent court to vacate the order denying Newell’s motion to set aside the
process.” (Ibid.) However in Johnson, the record affirmatively revealed that the mother,
unable to locate the father, did not provide any notice to the father of the ex parte hearing
or the resulting order. (Ibid.) Here, again, Newell’s attorney’s appearance at the ex parte
hearing suggests Kerley gave notice, and there is no basis to conclude the trial court
violated her due process rights by issuing the order.
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information, and enter a new order granting the motion. The stay issued by this court on
November 17, 2022, is vacated upon finality of this opinion.
KRAUSE , J.
We concur:
MAURO , Acting P. J.
MESIWALA , J.
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