## Facts

- William and Olga Neidinger married and had two children; their relationship included repeated arguments and physical altercations, with each blaming the other as the aggressor.
- Olga moved with the children to West Sacramento; a restraining order issued barring defendant from contacting Olga or the children.
- In custody proceedings, the court granted joint legal and physical custody, later modifying custody to give Olga primary physical custody and defendant weekend visitation.
- Defendant repeatedly reported concerns to child protective services, asserting the children were being neglected or emotionally harmed in Olga’s care.
- During a visitation period, defendant took the children from California to Nevada and did not return them as scheduled.
- Defendant was arrested and prosecuted under California Penal Code § 278.5 for taking/withholding the children and maliciously depriving the lawful custodian of custody or visitation rights.
- At trial, defendant invoked Penal Code § 278.7(a), claiming he acted with a good-faith and reasonable belief the children would suffer immediate bodily injury or emotional harm if left with Olga.

## Issues

1. Under Penal Code §§ 278.5 and 278.7(a), is § 278.7(a) an affirmative defense the defendant must prove by a preponderance of the evidence, or a statutory exception the prosecution must negate beyond a reasonable doubt once placed in issue?
2. If the jury was instructed that defendant had to prove § 278.7(a) by a preponderance of the evidence, was the error prejudicial?

## Decision

- The California Supreme Court held that § 278.7(a) functions as a statutory exception to § 278.5, not an affirmative defense.
- The defendant bears only a burden of production: introducing evidence sufficient to raise a reasonable doubt as to whether § 278.7(a) applies.
- Once raised, the prosecution retains the burden to prove guilt beyond a reasonable doubt, including that the § 278.7(a) exception does not apply.
- The trial court erred by instructing the jury that defendant had to prove § 278.7(a)’s predicates by a preponderance of the evidence.
- The instructional error was prejudicial; the court affirmed the Court of Appeal’s reversal of the conviction.

## Legal Principles

- When a criminal statute states it “does not apply” under specified conditions, the provision is generally treated as a statutory exception that limits criminal liability rather than an affirmative defense.
- A defendant invoking such an exception may be required to raise a reasonable doubt as to its applicability, but need not prove it by a preponderance of the evidence.
- The prosecution must prove every fact necessary for conviction beyond a reasonable doubt and must negate a statutory exception beyond a reasonable doubt once the defendant puts it in issue.
- Misallocating the burden of proof on a statutory exception that determines criminality can constitute reversible instructional error when it may have affected the verdict.

## Conclusion

The court ruled that the “good faith and reasonable belief of immediate harm” provision in Penal Code § 278.7(a) is an exception to § 278.5: the defendant must only raise reasonable doubt, and the prosecution must disprove the exception beyond a reasonable doubt; instructing otherwise was prejudicial and required reversal.


People v. Neidinger, 146 P.3d 502 (Cal. 2006)