People v. Jo

Filed 10/3/17 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ---- THE PEOPLE, C079280 Plaintiff and Respondent, (Super. Ct. No. CRF143595) v. NAN HUI JO, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Yolo County, David Rosenberg, Judge. Affirmed. Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, and Matthew Dirkes, Retained Counsel for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent. 1 Following a jury trial, defendant Nan Hui Jo was convicted of child custody deprivation (Pen. Code, § 278.5, subd. (a)) and sentenced to 175 days in county jail and thirty-six months probation.1 On appeal, defendant contends: (1) the trial court improperly instructed the jury on the union of act and criminal intent, (2) the trial court improperly instructed the jury on section 278.7, which provides an affirmative defense to child custody deprivation, over defendant’s objection, (3) the trial court failed to properly respond to the jury’s questions regarding the relationship between sections 278.5 and 278.7, (4) the trial court improperly refused to give a pinpoint instruction explaining that section 278.7 represents one of many possible defenses to child custody deprivation under section 278.5, (5) the trial court improperly allowed a former prosecutor to testify as to section 278.7’s requirements, (6) the prosecutor committed misconduct by misstating the applicable law, (7) the trial court failed to force an election or require unanimity in response to one of the jury’s questions, (8) the trial court improperly dismissed one of the jurors during deliberations, and (9) the evidence was insufficient to support the conclusion that defendant acted with malice. We conclude that defendant’s first and second arguments have merit, but the errors were harmless. We reject defendant’s remaining claims of error. Accordingly, we will affirm the judgment. I. BACKGROUND Defendant, a citizen of Korea, came to the United States on a student visa in 2002. She studied film and worked in Los Angeles for several years, then married and moved briefly to the east coast. In July 2007, defendant, now estranged from her husband, moved to Sacramento to enroll in photography classes at Sacramento City College. There, she met J.C., a veteran of the Iraq war who suffered from post-traumatic stress disorder (PTSD) as a result of his military service. 1 Undesignated statutory references are to the Penal Code. 2 A. Defendant’s Relationship with J.C. Defendant and J.C. became friends, and eventually began dating. J.C. moved into defendant’s trailer shortly thereafter. In late 2007, defendant discovered she was pregnant. Defendant, then thirty-five years old, was overjoyed at the news. J.C. was decidedly less enthusiastic. At twenty-four years old, J.C. felt he was not ready to become a father. As the pregnancy progressed, the couple fought with increasing frequency. These arguments culminated in the first of a series of ...

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