Dewberry

In this case—a prosecution for child detention without a court order (Pen. Code, § 277)—we hold the trial court erred in instructing the jury that the defendant had the burden of proving the defense of necessity by a preponderance of the evidence, because lack of necessity is an element of the offense as to which the defendant only had to raise a reasonable doubt. We reverse the judgment of conviction.

George Dewberry lived with his girlfriend Laurie between August and December 1988, during which time she became pregnant with their child. On June 18, 1989, while Laurie and Dewberry were separated, she gave birth to David. She subsequently returned with David to living with Dewberry.

On October 29, 1989, Laurie and Dewberry argued. She said she wanted to leave and asked if she could take David, but Dewberry said she could not. She had previously threatened to take David and never allow Dewberry to see him. Laurie left, but she returned later with a friend, a “biker type” named “Big Wayne.” A heated argument ensued. Laurie summoned the police, who responded but said they could not intervene because there was no custody order. Laurie and Big Wayne left without David. Just…