Does the Court of Appeal have abused its power to exclude evidence that supports a claim of malice in a sexual assault case?

Appellant contends that the court abused its discretion because the evidence was "relevant to appellant's state of mind in determining whether she acted with 'malice,' a critical element of the prosecution's proof required to convict her of child abduction." Respondent argues that appellant forfeited this contention because she did not cite that basis of admissibility in the trial court. (See Evid. Code, 354; People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Appellant, who acknowledges that she did not seek to admit the evidence on this basis, asks us to nonetheless consider the argument because the exclusion of the evidence deprived her of due process and a meaningful opportunity to present a defensethe defense of necessity. Relatedly, she

Page 41

contends the court erred by failing to instruct the jury on the defense of necessity.