Cline

This petition challenges a trial court ruling denying petitioner’s motion to dismiss charges of kidnaping (Pen. Code, § 207), child stealing (Pen. Code, § 278), and child abuse (Pen. Code, § 273a, subd. (1)). At the time of the alleged acts, the only arguably valid custody order 1 gave petitioner custody .of the child who is the alleged victim. Thus, neither the kidnaping nor the child stealing allegation can be sustained. As for the charge of child abuse, we have concluded that the testimony at the preliminary examination was sufficient to support the allegation. We issue writ of prohibition to prevent any further prosecution of the kidnaping and child stealing counts of the information.

At the preliminary examination, Laurie Dianne Cline testified that for three years prior to July of 1980 she and petitioner had lived as husband and wife in Indiana. A son, William Robert Cline, was born on August 10, 1978. In July of 1980, she took her son and came to New *946 ark, California, to stay at the home of her parents. She arrived on July 14, 1980, and telephoned petitioner’s parents to tell them where she and the child were. When she left Indiana, she was not aware of any…

I dissent from that portion of the opinion holding that there was sufficient evidence to hold petitioner to answer to the child abuse charge.

Though we are required to draw all reasonable inferences in favor of the information, I cannot find a reasonable ground for assuming petitioner may be guilty of child abuse based upon the testimony presented at the preliminary examination. While the child was certainly placed in a dangerous situation, there is no evidence that petitioner took the child knowing such a dangerous ride would follow. Although, as the majority states, a natural parent has an instinctive desire to rescue his or her child from a perceived danger, no such “perceived danger” existed here. Laurie Cline was simply, in disregard for the child’s safety, trying to retrieve by force her child from the custody of the father. While some adverse reaction might have been anticipated from petitioner’s attempt to remove his child, an ordinarily prudent person would not expect the extreme reaction from Laurie Cline without knowledge of her propensities for such action. The record contains no evidence that petitioner was aware she might act in such a way. Her conduct was bizarre,…

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, Ronald E. Niver, Thomas A. Brady and Gloria F. DeHart, Deputy Attorneys General, for Real Party in Interest.

OPINION

BARRY-DEAL, J.

This petition challenges a trial court ruling denying petitioner's motion to dismiss charges of kidnaping (Pen. Code, § 207), child stealing (Pen. Code, § 278), and child abuse (Pen. Code, § 273a, subd. (1)). At the time of the alleged acts, the only arguably valid custody order [1] gave petitioner custody of the child who is the alleged victim. Thus, neither the kidnaping nor the child stealing allegation can be sustained. As for the charge of child abuse, we have concluded that the testimony at the preliminary examination was sufficient to support the allegation. We issue writ of prohibition to prevent any further prosecution of the kidnaping and child stealing counts of the information.

At the preliminary examination, Laurie Dianne Cline testified that for three years prior to July of 1980 she and petitioner had lived as husband and wife in Indiana. A son, William Robert Cline, was born on August 10, 1978.…