In March, a Yolo County jury convicted Nan-Hui Jo of a single count of parental abduction. Following a change of counsel and a delay, Defense Attorney Dennis Riordan filed a motion for a new trial asserting serious error in Judge David Rosenberg’s jury instructions.
On Tuesday, Judge Rosenberg concluded the sentencing hearing, stating that he had done something to make both the defense and prosecution unhappy. He declined the defense’s motion for a new trial, ruling that the court is comfortable with its jury instructions and he found they were not prejudicial to the defense.
Judge Rosenberg then used his discretion to reduce the charge to a misdemeanor with time served.
He ruled that the definition of malice was a specific intent crime until the prosecution deleted key elements that made it as such – therefore it became a general intent crime. Judge Rosenberg defended the use of California Criminal Jury Instructions No. 1252, stating that he gave the entire instruction because it applied to some of the evidence that was presented.
With regard to the dismissal of the juror, the judge said that he did not take such an act lightly. However, in this case, the juror came to him and told him that she would not follow the instructions and the law, and the prospective jurors were directed during voir dire to follow the law even when they disagree with that law.
Upon the judge’s dispensing with the motion for a new trial, Defense Attorney Dennis Riordan argued that the court needs to consider the best interests of the family. That especially pertains to the daughter. He argued that the court needs to give the family a way to do what countless families do upon dissolution – find an acceptable custody arrangement for the child.
If Ms. Jo is deported, he argued, there is a good chance that the daughter would never have contact with her mother. Therefore, he argued that the judge should reduce the charge down to a misdemeanor – which is the judge’s discretion in cases like these. He argued for not more than 179 days in county jail – which would be tantamount to time served.
Deputy District Attorney Steve Mount countered that the defense continues to argue this case as though it were black and white. He called it a “factual absurdity” that this ruling with a felony conviction would prevent the mother from ever seeing the kid.
Instead, he argued, there are a number of arrangements that, on the extreme end, could deal with an international dissolution if she were barred from the country – which he felt would be the worst case scenario. Mr. Mount said that the elephant in this room is everyone is arguing for sentencing to gain permanent resident status in this country.
Mr. Mount cited three other abduction cases in Yolo, including the Neidinger case which he said resulted in a two-year prison sentence for two and a half days of deprivation. This case was much more serious – five years. She compounded the harm, he argued by lying to the daughter that she did not have a father.
He said this was an egregious case – far worse than the other cases he cited.
Mr. Mount asked the judge for a three-year term with a split sentence, where she would be freed at this point for the in-custody portion and the mandatory supervision would depend on the immigration courts. He argued that she needs to be monitored on probation.
Jesse Charlton, the father, was allowed to give a very emotional and angry victim impact statement. For the most part, he looked directly at the defendant as he recounted the harm done to him. And she looked at him as she listened.
He said this was five years of love lost and eight months of hardship with unification. He felt like he could never explain fully the loss he felt.
He said that Ms. Jo doesn’t understand the consequences of what she’s done, the harm it has caused her daughter and the damage it did to him. He said that the court has the ability to make sure that this takes place.
In sentencing Ms. Jo, Judge Rosenberg laid out the known facts of the case. He stated it was a crime to take a child away from a parent who has a lawful right to contact with the child. The law does allow exemptions – five components that she must follow which, according to him, for the most part she did not do.
The jury considered this evidence and found her guilty. She took the law into her own hands.
However, he said there are unique qualities in this case and, in the interest of judgment, he is using his discretion to reduce the charges to a misdemeanor. He sentenced her to three years of summary probation with 175 days of in-jail time, which is time served.
He urged them to allow the Sacramento Family Court system to work with them and come up with a solution for the best interest of the child and all involved.
However, the next step is unclear as ICE Immigration and Customs Enforcement) has an immigration hold on her and the matter will now go to an immigration court to determine her status in this country.
The Vanguard will have additional coverage on Wednesday.
(UPDATE): The Vanguard has been told that Ms. Jo was released from custody, and then taken into custody by ICE.
—David M. Greenwald reporting
i used to have a lot of respect for judge rosenberg. when i was a defense attorney here, he would stick his neck out of the line a few times to give kids a more fair sentence. i wondered when the da’s office would get to him like they did lebov. the truth is, judge rosenberg will make the tough call when he feels like he can get away with it, but he’s part of the establishment that runs the court house and he knows when not to rock the boat. i wonder how long it will take the courts to overturn this one and whether it will go to the california supreme court like neidinger did.
Ok, I’ll bite, and show my ignorance… why would someone appeal a misdemeanor, when the punishment is “time served”? Is that crucial on the immigration status? Meant as a fair question.
Mr. Riordan yesterday after the sentencing informed everyone that they would be appealing. Basically as soon as she was released from Yolo Custody, ICE picked her up and she is now in custody of Immigration officials and will have an immigration hearing. I’m not going to pretend to understand how this all works, but clearly part of the feeling is if they invalidate the sentence, she stands a better chance. BTW, they appealed Neidinger after he was done serving probation. Ironically that ended up costing his two years in prison, but you can’t count on officials messing up double jeopardy.
Why should I have to read all the way to the 6th paragraph to have the slightest clue as to what this article is about? Why isn’t “X v. Y” or whatever mentioned at least in the headline?
Isn’t Judge Rosenberg overseeing any # of cases? Someone needs to take a basic journalism class.
“She took the law into her own hands.”
He says that like there’s something wrong with it. Heaven forbid. Oink!