When Attorney Dennis Riordan filed his motion for a new trial that will be heard by Judge David Rosenberg on Tuesday, his argument is that “the controlling legal framework for virtually every aspect of this case was provided by the California Supreme Court in 2006.” That case was the 2006 decision in People v. Neidinger, first overturned by the appellate court in 2005; eventually that ruling was affirmed by the California Supreme Court the next year.
Writes Mr. Riordan, “Yet defense counsel never cited People v. Neidinger (2006) 40 Cal.4th 67 to the Court, and the prosecution’s one-line throw away description of the Neidinger holding was entirely specious. As a result, Ms. Jo’s second trial was marred by multiple, serious legal errors.” Mr. Riordan would add however that Defense Attorney, Deputy Public Defender Dean Johansson, “requested a pinpoint instruction consistent with this core holding of Neidinger, yet the Court refused to give it.”
The Vanguard has learned that the case of William Neidinger originated out of Yolo County and, in fact, Deputy District Attorney Steve Mount ought to be extremely familiar with that case, as he was the prosecuting DA when the case was heard in Yolo County before Judge Michael Sweet, and the public defender in that case was Tracie Olson, now the Yolo County Public Defender.
Defendant William Neidinger appealed, after being convicted by a jury, of two counts of being a lawful custodian of his children who maliciously deprived another lawful custodian of the children, Olga Neidinger (Olga or mother), of her right to custody under Penal Code section 278.5 which holds 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 . . . .”
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 . . . .”
The court notes, “He argues that the facts supporting the defense negated an element of the crime–malice–and that he was thereby required to raise only a reasonable doubt as to the existence of those facts. We shall conclude, for the reasons stated below, that the court erred by failing to give an instruction that clarified the relationship between the good faith defense and malice. Since the error cannot be deemed harmless under the facts presented, the judgment must be reversed.”
The key issue at trial was that the defendant claimed “he had a reasonable and good faith belief that removal of the children from Olga’s care was necessary for their physical and emotional well-being under section 278.7(a). However, the court “told the jury that defendant had the burden of proving the facts necessary to establish this defense by a preponderance of the evidence.”
The jury would find him guilty and he received a suspended sentence where he was placed on probation for four years on the condition that he serve 240 days in jail and have no contact with Olga and the children. He would serve that sentence and complete his term of probation successfully.
In the meantime, he appealed. The Court of Appeal held that the preponderance-of- the-evidence instruction was proper. But it also held that the trial court erred by not additionally giving an instruction “which clarified the relationship between the good faith defense and the element of malice, so that it was clear to the jury that, to the extent the evidence regarding the good faith defense also showed that defendant acted without malice, he need raise only a reasonable doubt as to that element of the offense.” It found the error prejudicial and reversed the judgment.
When the Supreme Court reviewed the matter, they concluded “a defendant need only raise a reasonable doubt whether the facts underlying the section 278.7(a) defense exist. Thus, the trial court erred in requiring defendant to prove those facts by a preponderance of the evidence.” The court adds, “We conclude that the more serious error that we have found—placing an erroneously high burden on defendant to prove the section 278.7(a) defense—was prejudicial.”
The Third District court found that the trial court had erred by failing to instruct “that to the extent the evidence regarding the good faith defense also showed that defendant acted without malice, he need raise only a reasonable doubt as to that element of the offense.” The Supreme Court ruling went further, disapproving of both the trial court and the Court of Appeal saying “that defendant had the burden of proving the facts necessary to establish this defense [under section 278.5] by a preponderance of the evidence.”
That would be a 7-0 court decision in 2006. However, the saga was not done. The court remanded the case back to Yolo County. At the last moment Mr. Neidinger represented himself pro per. For reasons that are unclear, despite the fact that Mr. Neidinger had already served his probation sentence, he was sentenced to prison for a second time.
Deputy DA Steve Mount was obviously aware of this matter, but said nothing. Moreover, because Mr. Neidinger was then representing himself, he failed to respond within the 60-day window to file a notice of appeal. Again, Mr. Mount, fully aware of the situation, did not intervene and Mr. Neidinger ended up serving a second sentence in clear violation of the US Constitution’s Double Jeopardy clause.
In the Nan-Hui Jo case, Mr. Riordan argues that Judge Rosenberg “altered the definition of malice provided by Neidinger in order to instruct the jury,” instructing the jury as though it were a general intent rather than requiring specific intent as indicated in the Neidinger decision. He does this despite the admonishment in the jury instructions that states that “this instruction must not be used if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent crime.”
Mr. Riordan argues, “In so doing, the Court effectively eliminated malice as an element of the offense that had to be proven above and beyond the general intent required of every criminal violation in California. The Court compounded that error by instructing the jury that a defendant’s belief in the legality of her actions could not constitute a defense. When properly defined, the element of malice is inconsistent with an honestly held belief in the legality of ones action’s.”
Mr. Riordan, citing the November 2006 California Supreme Court case, notes, “The Court ruled that the section 278.7 defense is not the equivalent of a necessity defense upon which the defense bears the burden of proof, but rather merely informs the jury of one way in which a defendant may demonstrate that the prosecution has failed to meet its burden of proof beyond a reasonable doubt on the element of malice.”
He parenthetically notes, “Ms. Jo’s counsel requested a pinpoint instruction consistent with this core holding of Neidinger, yet the Court refused to give it.”
Mr. Riordon notes that the Neidinger case had reversed the 278.5 conviction because the “the trial court had placed the burden of proving the components of a section 278.7 defense on the defendant.”
However. Mr. Mount “relied heavily on the erroneous instruction setting forth the ‘good faith’ defense in arguing in closing that Ms. Jo’s evidence had to be ignored and she convicted because she had not met the reporting requirements contained in the Court’s instructions.”
The jury would, in fact, ask if malice had not been proven based on whether the defendant “had a good faith and reasonable belief when abducting the child that the child would suffer immediate bodily injury or emotional harm if left with the other person . . . .”
As Mr. Riordan notes, under Neidinger, the correct answer to that question was, “Yes, malice has not been proven if Ms. Jo has offered evidence that she acted in good faith and the prosecution has not proven the absence of good faith beyond a reasonable doubt.”
Instead, the court gave the view that, in effect, the burden was on the defense to show all five items had been followed in order for the defense to apply.
In the Nan-Hui Jo matter, it appears that the jury instruction given by Judge Rosenberg directly contradicts the California Supreme Court holding in Neidinger. It is unclear from the motion whether Mr. Riordan is aware that, in fact, the same prosecutor was involved at the trial court level in Neidinger and the present case.
Mr. Mount should have been well aware of the court’s ruling on malicious intent, just as he was well aware at the time Mr. Neidinger was sentenced the second time that he had already served a sentence. However, as Mr. Riordan makes clear, Mr. Mount’s “one-line throw away description of the Neidinger holding was entirely specious.”
—David M. Greenwald reporting