Neidinger

Penal Code section 278.5 provides in subdivision (a) that it is a crime when a person “takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation . . . -” Section 278.7, subdivision (a) (section 278.7(a)), provides, however, that section 278.5 does not apply to a person who has a right to custody of the child and acts “with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm . . . .” This case requires us to examine the relationship between these two provisions. We conclude that the defendant bears the burden of raising a reasonable doubt regarding whether section 278.7(a) applies. Because the trial court instructed the jury that defendant had to prove section 278.7(a)’s facts by a preponderance of the evidence, and because the error was prejudicial, we affirm the judgment of the Court of Appeal, which had reversed the trial judgment.

I. Facts and Procedural History

We take these facts largely from the Court of Appeal opinion. Defendant, William Neidinger, and Olga Neidinger (Olga)…