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Trial Brief including Motions in Limine
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11
F I lEDClerk of !tie SUpari\K CWrt
BONNIE DUMANISDistrict Attorney
2 JILL LINDBERGDeputy District AttorneyState Bar Number 203988330 W. BroadwaySan Diego, CA 92101(619) 531-4300
MAR 1 9 Zu 43
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5Attorneys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO
THE PEOPLE OF THE STATE OFCALIFORNIA,
No. SCD242110DA ADF517TRIAL BRIEF
Motions Date: March 21,2014TIme: 9:00 a.m.Dept.: 55
Plaintiff,
v.
TAMMY CHERIE RIEF,14 Defendant.
15
16 Comes now the plaintiff, the People of the State of California, by and through their
17 attorneys, BONNIE DUMANIS, District Attorney, and JILL LINDBERG, Deputy District
18 Attorney, and respectfully submits the following Trial Brief.
1920 STATEMENT OF FACTS
21 Brian Sullivan and Tammy Rief (Defendant) are the never-married parents of a son,
22 Jonah. Jonah was born on December 18,2007 in SanDiego County. There is a lengthy
23 history of child custody proceedings in both California and Alabama. On June 23, 2011, the
24 San Diego family court made a final order giving both parents joint physical custody. The
25 parties generally abided by the order until April 30, 2012, when Defendant failed to return
26 Jonah to his father. Defendant and Jonah were missing for six months. On November 5,
27 2012, they were found to be living in Charlotte, N.C. under assumed names. Defendant was
28 arrested for violating Penal Code 278.5(a), and Jonah was returned to his father.
1 Summary of Family Court Proceedings
2 The following summary describes the relevant orders and events in both California
3 and Alabama. This is not a complete history of the events, but is intended to highlight those4 that are most important to understanding the criminal case:
5 On November 18,2008, Mr. Sullivan filed a Petition to Establish Paternity and
6 requested joint physical and legal custody of Jonah. He filed the petition in San Diego7
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County, Case # DN153612. Defendant did not respond by the deadline of December 20,2008. Mr. Sullivan requested a default judgment.
On February 19, 2009, at the default hearing, Defendant stated that she wanted to
10 participate in the proceedings. The court set aside the request for default and ordered
11 Defendant to file her response forthwith.
12 On February 20,2009, the very next day, Defendant filed an ex-parte petition in
13 Dekalb County, Alabama, Case # JU-2009-44, to establish paternity, child support, and
14 custody of Jonah. Her petition stated, among other things, that no other court had
15 jurisdiction over the child and that Mr. Sullivan was the father of the child. The Alabama
16 court granted her request for temporary custody of Jonah and a DNA test. (Attachment A)
17 On February 27,2009, Defendant responded to the California action. She also filed a
18 motion to dismiss for lack of subject matter jurisdiction.
19 On March 6,2009, Mr. Sullivan filed a motion to dismiss the Alabama action and
20 asked the Alabama court to transfer the matter to the San Diego court. A hearing was
21 initially set on the matter in Alabama for March 26,2009, but was continued multiple times
22 to June 17,2010.23 Meanwhile, on June 8, 2009, the SanDiego court found that there was no dispute that
24 Mr. Sullivan was Jonah's father. The court ordered that Jonah's birth certificate be amended
25 to show this fact.
26 On May 13, 2009 and July 10,2009, the San Diego court held a trial regarding the
27 issue of subject matter jurisdiction. On August 21,2009, the San Diego court ruled that
28 under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), California
2
31 was the home state and had continuing, exclusive jurisdiction to make child custody orders.
2 (Attachment B)
3 On October 14,2009, the San Diego court made its initial custody order. Defendant
4 was made the primary custodian of Jonah. She and Mr. Sullivan shared legal custody. Mr.
5 Sullivan was given 5-7 consecutive days of visitation per month in either California or
6 Alabama.
7 On June 29,2010, (following a June 17,2010 hearing) the Alabama court found that
8 two genetic tests had shown that Mr. Sullivan was Jonah's biological father, that the San
9 Diego court had exercised jurisdiction and made a custody order, and that the parties were
10 following the California order, but that a final order had not yet been made by the San Diego
11 court. The Alabama court then ordered that its case be put on the court's "Administrative
12 docket" for a year and dismissed on June 1,2011, unless one of the parties made a request of
13 the court prior to that time.
14 On November 3,2010, the San Diego court changed the custody order. The court
15 gave Mr. Sullivan sole legal and physical custody of Jonah, effective immediately, pending
16 the outcome of the custody trial set for January 20, 2011. Defendant was given supervised
17 visitation in San Diego only. The court ordered law enforcement agencies to help locate
18 Jonah.
19 On November 4,2010, the Alabama court ordered any law enforcement agency
20 within that state to assist Mr. Sullivan in enforcing the November 3,2010 San Diego custody
21 order, by locating and physically retrieving Jonah and turning him over to Mr. Sullivan.
22 On November 29,2010, the Alabama court ordered Defendant to appear on Decembe
23 2,2010 and to ensure Jonah's presence at the hearing.
24 On December 2, 2010, the Alabama court found Defendant to be in civil contempt of
25 the court's previous order by not producing Jonah for the hearing. Defendant was held in
26 custody for two days before Jonah was produced and turned over to Mr. Sullivan.
27 On February 10,2011, the Alabama court relinquished jurisdiction of the child
28 custody matter to California. (Attachment C)
1 Starting on January 20, 2011, and continuing over the course of several months, the
2 California court held a trial on the issue of child custody. On June 23, 2011, the court gave
3 joint legal and physical custody to both parents. However, the court stated that Mr. Sullivan
4 would have the tie-breaking vote if the parties could not agree on a legal decision relating to
5 Jonah's care. Furthermore, the court set up a 2-2-5-5 schedule to divide Jonah's time
6 between his parents. Jonah was to live with Mr. Sullivan on Mondays and Tuesdays, and
7 then live with Ms. Rief on Wednesdays and Thursdays. The parties alternated weekends
8 (Friday - Sunday), such that they had 5 consecutive days with Jonah every other week. This
9 custody arrangement was to start on July 7, 2011. Notably, the court expressed concern
10 about Ms. Riefbeing a flight risk. Accordingly, the court ordered that Southern California
11 was to be the child's residence for 5 years, and that Ms. Rief was not allowed to remove
12 Jonah from Southern California for any reason unless she had Mr. Sullivan's written
13 permission. (Attachment D)
14 At a subsequent hearing on July 7, 2011, the California court ruled on financial issues
15 related to the child custody matter. The July 7,2011 order did not change the legal or
16 physical custody order made on June 23, 2011. Both the June 23rd and the July 7th rulings
17 were later formalized into written orders, which were filed with the court on November 18,
18 2011. (Attachment E)
19 On March 13, 2012, the California court issued an ex-parte order requiring Jonah to
20 attend preschool on Wednesdays (a day that Defendant normally had custody of him). The
21 order also prohibited Defendant from removing Jonah from school unless he was sick or
22 school had been let out. Lastly, the order gave Mr. Sullivan sole legal custody of his son in
23 all matters relating to therapy for Jonah. (Attachment F) Defendant was present at the
24 hearing on March 13th, and was served with the ex-parte application and order and other
25 related documents in the courtroom on that date. (Attachment G)
26 On March 20,2012, Mr. Sullivan's attorney filed a request to modify the custody
27 order to give Mr. Sullivan sole legal custody. Defendant was served via mail on March 21,
28 2012. An Order to Show Cause hearing was set for July 2,2012. (Attachment H)
4
51 The Abduction
2 Defendant generally abided by the 2011 San Diego child custody order until April 30,
3 2012. On that date, she failed to meet Mr. Sullivan at the designated exchange time and
4 location. She did not contact Mr. Sullivan to explain why she and Jonah were not there. In
5 fact, she never contacted him again. She simply disappeared with Jonah.
6 Approximately thirty minutes after Defendant failed to appear, Mr. Sullivan began
7 looking for her. He drove to two residences where she had previously claimed to be staying.
8 He could not find her or Jonah at either location. He called her family and friends, but no
9 one seemed to know where she was. He asked police to do a welfare check at one of the La
10 Jolla addresses he had for Defendant, but the police declined to do so. He also tried to file a
11 missing person's report with the Carlsbad Police Department (because he lived in Carlsbad
12 at the time), but they too declined to take a report. They referred him to the Child Abduction
13 Unit in the District Attorney's Office.
14 Mr. Sullivan contacted the Child Abduction Unit. Investigator Carole Snyder worked
15 the case and tried to locate Defendant. She learned that Defendant had moved out of her last
16 known address in La Jolla in September 2011. It became clear that Defendant had moved
17 between various friends' homes and no one would or could say with certainty where she was
18 living just prior to her disappearance.
19 Ms. Snyder discovered that around March 28,2012, Defendant contacted Mark Davis,
20 the Director of Communications and Research with the Alabama Family Rights Association.
21 Defendant asked Mr. Davis how to move her child custody case from California to Alabama.
22 Defendant traveled twice to meet with Mr. Davis. The first meeting occurred on April 2,
23 2012, at a fast-food restaurant in Decatur, Georgia. Defendant explained her case to Mr.
24 Davis, who recommended that she find an experienced Alabama attorney to assist her. The
25 second meeting took place on April 21, 2012 at a fast-food restaurant in Huntsville,
26 Alabama. Defendant spoke about wanting to return to Alabama with Jonah and then file
27 pleadings in federal court to stop the California court from acting in its case. She
28 complained about the California court diminishing her time with her son. Mr. Davis again
61 explained the necessity of getting attorneys in Alabama and California and talked about the
2 cost of doing so. During both meetings with Mr. Davis, Defendant was focused on returning
3 legal jurisdiction to Alabama.
4 Ms. Snyder received and followed up on leads from the National Center for Missing
5 and Exploited Children (NCMEC) regarding possible sightings of Defendant and Jonah.
6 NCMEC had the pair on its website in hopes of finding the missing child and his mother. 0
7 November 5,2012, Ms. Snyder received the final tip from NCMEC, which came from a man
8 named Riley Bell. Mr. Bell came into contact with Defendant and Jonah at the residence of
9 his sister-in-law, Robin Evans, in Charlotte, NC. At the time, Mr. Bell traveled for work
10 several times a month, and would often stop and stay for a few days with Ms. Evans. For the
11 three to four months prior to November 5th, a woman who went by the name "Julie" and a
12 young boy called "Nico" had also been staying at Ms. Evans' home. Mr. Bell learned that
13 "Julie" had told Ms. Evans that her son's father and a judge in San Diego were molesting her
14 son and making child pornography. Ms. Evans felt sorry for "Julie" and let her and "Nico"
15 stay with her. The pair lived in an upstairs room that had sheets on the window to keep
16 anyone from looking in. Mr. Bell thought something was odd about "Julie" and "Nico," and
17 thought they were hiding something. Mr. Bell went home and did some research. When he
18 found Defendant and Jonah on the NCMEC website, Mr. Bell told Ms. Evans what he had
19 learned. He advised her to stop assisting Defendant. Ms. Evans got upset with Mr. Bell and
20 indicated she believed what Defendant had told her. The two argued and stopped speaking
21 to each other. Mr. Bell then called NCMEC to let them know he might have found
22 Defendant and Jonah.
23 After talking with Mr. Bell, Ms. Snyder contacted the Charlotte-Mecklenburg Police
24 Department. Sgt. Peter Hildebrand and a team of officers went to Ms. Evans' home on
25 November 5, 2012. The homeowner, Gwendolyn Buckingham (a relative of Ms. Evans),
26 initially denied that Defendant and Jonah were in the home. After a brief conversation with
27 the officers, and after viewing photos of Defendant and Jonah, Ms. Buckingham admitted
28 that the pair was upstairs and allowed police to enter the home. Police found Defendant and
71 Jonah huddled in front of an open closet in what appeared to be a bedroom. It looked like
2 Defendant was holding her son and trying to hide herself and Jonah by getting under a pile 0
3 clothes. Police recovered Jonah and arrested Defendant. Jonah was turned over to the
4 Department of Social Services. Mr. Sullivan was notified and flew to Charlotte the next day
5 to get his son back.
6
7 STATE OF THE CASE
8 On July 23,2012, the People charged Defendant with one felony count of Child
9 Abduction in violation of Penal Code 278.5(a). The dates of the alleged offense were "[0]
10 or about and between April 30, 2012 and July 23, 2012 .... " An arrest warrant for Defendant
11 was also signed by the court on July 23, 2012. Bail was set in the amount of$25,000.
12 On November 5, 2012, Defendant was arrested in Charlotte, NC. She refused to
13 waive extradition. While the People were in the process of getting a Governor's Warrant,
14 she made bail on December 18,2012. She failed to appear on January 8, 2013 at a
15 subsequent hearing on the matter in Charlotte.
16 On January 18,2013, the case was on calendar for arraignment in San Diego Superior
17 Court, having been put on calendar by the Public Defender's Office. Defendant failed to
18 appear and the warrant remained outstanding.
19 On April 3, 2013, Defendant was arrested in DeKalb County, Alabama. She again
20 refused to waive extradition. After the People obtained another Governor's Warrant, she
21 was brought (in custody) to San Diego on July 2, 2013.
22 On July 3, 2013, Defendant was arraigned on the Complaint and pled not guilty to the
23 charge. Bail was raised to $300,000.
24 On July 17,2013, prior to the start of the preliminary hearing, the Complaint was
25 amended by interlineation to change the ending date of the offense from July 23,2012 to
26 November 5, 2012. Defendant's retained attorney stated he was appearing for the purposes
27 of the preliminary hearing only. Following the hearing, Defendant was bound over for trial.
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1 She pled not guilty at the immediate Arraignment on the Information. Further proceedings
2 were set for July 25, 2013 regarding the status of her attorney. Additionally, the readiness
3 conference was set for August 29,2013, and the jury trial was set for September 5, 2013.4
5
On July 25,2013, Defendant's retained attorney was not present for the further
proceedings, believing he had already been relieved from the case. The matter continued for
6 one week for retained counsel to appear and be officially relieved.
7 On July 31, 2013, retained counsel was relieved and the Public Defender's Office was
8 appointed to represent Defendant.
9 On August 29,2013, the trial date was continued to November 13, 2013. A further
10 readiness conference was set for October 17, 2013.
11 On October 17, 2013, the case confirmed for jury trial.
12 On November 8, 2013, the jury trial continued to January 23, 2014. A readiness
13 conference was set for December 27,2013. A bail review was held on November 20,2013.
14 Bail remained as previously set.
15 On December 27,2013, proceedings were suspended pursuant to Penal Code 1368.
16 On February 7, 2014, Defendant was found competent. Proceedings were reinstated.
17 A readiness conference was set for March 6, 2014 and jury trial was set for March 28, 2014.
18 On February 28, 2014, the matter was heard in D.11 for pre-assignment. The case
19 was assigned to Department 55.
20
21 POTENTIAL WITNESSES22 1.
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Officer Samantha Alexander, Carlsbad PD
D. Riley Bell
Christine Bergen, Office Manager, Children's Clinic of La Jolla
Officer M. Bowen, Carlsbad PD
Officer Calderwood, Carlsbad PD
Lupita Castro-Zuniga, SD Child Welfare Services
8
The Court Should Exclude a Penal Code 278.7 "Good Cause" Defense
Penal Code 278.7 provides a defense to a charge of child abduction in certain
circumstances. In order to qualify for this defense, a person must meet the following criteria:
(a) The defendant must be charged with Penal Code 278.5;
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Mark Davis
Denise Glaser
Sgt. Peter Hildebrand - Charlotte Mecklenburg PD
Detective Catherine Millet, SDPD (retired)
Melissa Reed, Director, Carlsbad Country Day School
Carole Snyder
Brian Sullivan
POTENTIAL EXHIBITS
Photos
Certified copies of family court orders
MOTIONS IN LIMINE
1.
(b) The defendant must have a right of custody to the child;
(c) The defendant must have a good faith and reasonable belief that the child, if left
with the other person, will suffer immediate bodily injury or emotional harm;
(d) The defendant must make a report within 10 days to the office of the district
attorney in the county where the child resided before the abduction. The report
must include the name of the taking person, the current address and telephone
number of the child and the person, and the reasons the child was taken, withheld
or concealed;
(e) The defendant must commence a custody proceeding in a court of competent
jurisdiction within 30 days of the abduction;
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1 (f) The defendant must inform the district attorney's office of any change of address
2 or telephone number of the person and the child.
3 (Penal Code 278.7; People v. Mehaisin (2002) 101 Cal.App.4th 958.)4 In Mehaisin, the defendant was charged with violating Penal Code 278.5 for
5 withholding his two young children from their mother. The defendant had filed for divorce
6 in Mississippi, approximately two months after his wife and children had moved to
7 California. While proceedings were pending, the Mississippi court gave temporary custody
8 of the children to their mother, and gave the defendant an extended period of visitation.
9 During the visitation, Defendant took his children to Jordan and failed to return the children
10 to their mother in California at the end of the visitation. When reached by telephone in
11 Jordan, he stated he had no intention of bringing the children back to the United States.
12 However, Defendant eventually returned to the United States, and was ultimately arrested
13 and tried for child abduction in California.
14 The trial court ruled that defendant was not entitled to a defense pursuant to Penal
15 Code 278.7 because he did not comply with the statute's reporting requirements. (People
16 v..Mehaisin, supra, 101 Cal.App.s'" at 962.) In upholding the trial court's decision, the
17 appellate court found that the defendant was not entitled to the defense because (1) he did no
18 have a right of custody, and (2) he did not report his taking to the district attorney's office or
19 start custody proceedings. (Mehaisin, supra, 101 Cal.App.d'" at pp. 963-965) Specifically,
20 the appellate court stated:
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"Section 278.7 is silent as to whether a person claiming the defense mustcomply with its reporting provisions, or in other words, whether the reportingprovisions are conditions of the statutory defense. However, before theenactment of section 278.7, the common law necessity defense 'require[d] theindividual committing the crime to report to the proper authorities immediatelyafter attaining a position of safety from the peril.' (Citations.) Ourexamination of section 278.7's legislative history reveals no dissatisfactionwith, or intent to change, the common law in this respect .... The trial courtproperly construed section 278.7 consistent with its common law antecedent
123
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and properly concluded that defendant was not entitled to the statutorydefense."
(Mehaisin, supra, 101 Cal.App.a" at p. 965.)4 In a case where the defendant was allowed to argue the' good cause' defense, the
California Supreme Court concluded that the standard of proof for such a defense was not
preponderance of the evidence, but rather, that the defendant need only raise a reasonable
doubt about whether the facts underlying the defense existed. (People v. Neidinger (2006)
40 Ca1.4th67.) The court made this ruling to clarify the relationship between the defense and
the 'malice' element of the Penal Code 278.5 charge. (Jd. at p. 79.) Essentially, because
the 'good cause' defense goes to the element of 'malice,' the defendant's burden should be
the same as his burden for any element of an offense - beyond a reasonable doubt.
However, the Neidinger court left in place the Mehaisin holding that a defendant is not
entitled to the 'good cause' defense ifhe or she does not meet the reporting requirements of
Penal Code 278.7(a).
In the instant case, Defendant may try to argue that she abducted her son to protect
him from alleged abuse. However, she should not be allowed a defense under Penal Code
278.8 because her belief was neither reasonable nor in good faith, and because she did not
comply with the reporting requirements outlined by the statute. She did not report the taking
to the San Diego District Attorney's Office, nor did she commence custody proceedings in a
court of competent jurisdiction. She simply disappeared. Thus, she should not be allowed to
claim this defense at trial.
Although Defendant is not entitled to a Penal Code 278.7 'good cause' defense, nor
is she likely to be able to meet the elements of a traditional 'necessity' defense (infra), she
may be able to present some similar evidence to raise a reasonable doubt about the 'malice'
element of the charged offense. If she proffers such evidence, the trial court has the
discretion and the responsibility to make sure that any such evidence is actually relevant to
the crime charged. "Any limitation upon the presentation of evidence by defendant material
to the issue whether he maliciously took the children with intent to detain and conceal them
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1 was directed to its relevance and was a determination within the proper exercise of the
2 court's discretion in the premises. (Gen. see People v. Vaughn, 262 Cal.App.2d 42,47 [68
3 Cal.Rptr. 366].)" People v.Hyatt (1971) 18 Cal.AppJd 618,626.4 For example, testimony from witnesses about bruises seen on Jonah after visits with
5 Mr. Sullivan would not be relevant if such testimony was about events that occurred in 2009,
6 three years prior to the abduction, and two years prior to the making of the custody order that
7 gave Mr. Sullivan and Defendant an equal share of time with Jonah. The People request a
8 proffer of, and potentially an Evidence Code 402 hearing on, all evidence that Defendant
9 seeks to admit on this subject, so that the court can decide outside the presence of the jury
10 whether such evidence is relevant and admissible.
11
12 2. The Court Should Exclude a Necessity Defense
13 The common-law defense of necessity traditionally covered situations where physical
14 forces beyond the actor's control rendered illegal conduct the lesser of two evils. (United
15 States v. Bailey (1980) 444 U.S. 394,410.) This defense is not recognized by statute in
16 California (People v. McKinney (1986) 187 Cal.App.3d 583, 586), but has been judicially
17 sanctioned (People v. Lovercamp (1974) 43 Cal.App.3d 823).
18 "[T]he defense of necessity more properly applies to situations when the person
19 asserting the defense is faced with an extraordinary, or at least unusual, situation." (People
20 v. Lee (2005) 131 Ca1.App.4th 1413, 1429.) "[A] well-established central element involves
21 the emergency nature of the situation, i.e., the imminence of the greater harm which the
22 illegal act seeks to prevent." (People v. Patrick (1981) 126 Ca1.App.3d 952,960.)
23 Also basic to the defense of necessity is the actor's confrontation with a choice
24 between two evils. If yet another alternative existed to violating the law, which alternative
25 was reasonable or likely to cause less harm, the necessity defense is unavailable at trial.
26 (United States v. Bailey, supra, 444 U.S. at p. 410; People v. Slack (1989) 210 Cal.App.3d
27 937,940.) The commission of a crime cannot be condoned where there exists the possibility
28 of some alternate means to alleviate the threatened greater harm. (People v. Heath (1989)
12
1 207 Cal.App.3d 892, 901.) The defendant must demonstrate that violation of the law was th
2 only reasonable alternative. (United States v. Bailey, supra, 444 U.S. at pp. 410-411.)
3 The defendant has the burden of establishing the defense of necessity by a
4 preponderance of the evidence. (People v. Waters (1985) 163 Ca1.App.3d 935, 923-938.)
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To assert a defense of necessity, the defendant must show, by a preponderance of theevidence, that he or she "violated the law (1) to prevent a significant and imminentevil, (2) with no reasonable legal alternative, (3) without creating a greater dangerthan the one avoided, (4) with a good faith belief that the criminal act was necessaryto prevent the greater harm, (5) with such belief being objectively reasonable, and(6) under circumstances in which [he or] she did not substantially contribute to theemergency. [Citations.]" (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 ....See also CALCRIM 3403.)
(People v. Buena Vista Mines, Inc. (1998) 60 Ca1.App.4th 1198, 1202; see also People v.
12 Pepper (1996) 41 Cal.App.4th 1029, 1035; People v. Slack, supra, 210 Cal.App.3d at
13 p.940.) When proffered in a case charging an escape from custody, a defendant must also
14 show that he reported to the proper authorities immediately after attaining a position of
15 safety from the peril that led to his escape. (People v. Wester (1965) 237 Cal.App.2d 232,
16 237-238; People v. Lovercamp, supra, 43 Ca1.App.3d at p. 831; CALCRIM 2764.)
17 Courts often require an offer of proof by the defendant before any evidence of
18 necessity is allowed before the jury. If the defense's proffered evidence is insufficient to
19 establish each and every element of the defense of necessity, the defense and its related
20 evidence should be rejected. (See, e.g., People v. Geddes (1991) 1 Cal.App.4th 448,456;
21 People v. Slack, supra, 210 Ca1.App.3d at pp. 943-944; People v. Patrick, supra, 126
22 Cal.App.3d at pp. 959-962.) In United States v. Bailey (1980) 444 U.S. 394, the United
23 States Supreme Court endorsed this procedure. "If, as we here hold, an affirmative defense
24 consists of several elements and testimony supporting one element is insufficient to sustain it
25 even if believed, the trial court and jury need not be burdened with testimony supporting
26 other elements of the defense." (ld. at p. 416.)
27 Rejection of the defendant's proffered evidence is not the only limitation that should
28 be applied when the proof is lacking. Jury instructions supporting such a defense should be
13
1 refused. (See, e.g., United States v. Bailey, supra, 444 U.S. at p. 417; People v. Pepper,
2 supra, 41 Cal.AppAth at p. 1036; People v. Geddes, supra, 1 Cal.AppAth at p. 456; see also
3 People v. Slack, supra, 210 Cal.AppJd at pp. 943-944; People v. Patrick, supra, 1264 Cal.App.3d at p. 959-962; People v. McKinney, supra, 187 Cal.App.3d 583.) Voir dire,
5 opening statements and closing argument regarding the "necessity" or motivation for the
6 defendant to act should also be precluded.
7 In this case, Defendant cannot prove that she had no reasonable legal alternative to
8 committing the charged offense. The trial court can find, based on written and oral
9 arguments without need of an Evidence Code 402 hearing, that there were reasonable legal
10 options (such as requesting a modification of custody in family court, obtaining a temporary
11 restraining order, or making a report to police or Child Welfare Services) that Defendant
12 could have used to address any problems she believed to exist. Rather than doing any of
13 these things, she simply disappeared with her child. If the court finds that one element of the
14 necessity defense cannot be met, the court can exclude the defense. The court need not take
15 evidence on each and every element of the defense if even just one element is clearly
16 lacking. If the court finds that it needs to reach the other elements of the defense, the People
17 would request an Evidence Code 402 hearing for that purpose. A hearing outside the jury's
18 presence will allow the court to assess the sufficiency of Defendant's evidence without
19 burdening or prejudicing the jury with testimony that wi1llikely be deemed irrelevant.
20
21 3. The Court Should Exclude a Collateral Attack on the Validity ofthe Family Court
22 Order in Effect at the Time ofthe Abduction
23 In the past, both California and Alabama made child custody orders relating to Jonah.
24 However, at the time of the instant offense, there was only one order in effect - the 2011 San
25 Diego order giving both parties joint custody. Despite Alabama relinquishing jurisdiction
26 over child custody orders to California, and despite Defendant following the California order
27 for several months, Defendant may claim that the 2011 San Diego order is invalid and that
28
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1 the only 'true' custody order in the case is a temporary ex-parte order issued by Alabama in
2 2009 before it gave up jurisdiction.
3 Any claim that the 2011 San Diego custody order is invalid should be heard outside4 the presence of the jury and should then be denied. "To begin with, it is elementary that the
5 ruling on the admissibility of evidence is not a factual determination, but purely a legal
6 question. (Evid. Code 310)." (People v. Lipinski (1976) 65 Cal.App.3d 566, 575.)
7 Defendant' s issue with the San Diego child custody order seems to be that she does
8 not believe that the California court had jurisdiction to make the order. However, as
9 previously noted, the San Diego court conducted a hearing on the issue of subject matter
10 jurisdiction and found that it did, in fact, have jurisdiction. The court even wrote a lengthy
11
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statement of decision in 2009 giving its reasons for finding that it had jurisdiction over child
custody issues between the parties. Moreover, "case law holds California superior courts are
generally empowered to decide custody issues and have inherent jurisdiction to determine
14 whether they have jurisdiction over a case and that a court's determination of subject matter
15 jurisdiction (which is implicit in every order issued) is presumed correct and is not subject to
16 collateral attack if the jurisdictional determination is factually based (as is the UCCJA
17 determination). (Citations omitted.)" (People v. Beach (1987) 194 Cal.App.3d 955,966
18 (superseded by statute on other grounds as stated in People v. Neidinger (2006) 40 Ca1.4th
19 67.))
20 Defendant may also try to attack the validity of the San Diego court order by claiming
21 that Mr. Sullivan is not Jonah's father and by asserting that he submitted fraudulent DNA
22 tests to establish paternity. Such claims also amount to a collateral attack on the validity of
23 the 2011 San Diego court order and should be excluded from evidence in the criminal case.
24 As with jurisdiction, this claim was previously addressed in the family court. In May
25 2010, Defendant filed a document with the San Diego family court claiming that she was not
26 certain that Mr. Sullivan was Jonah's father. The court ordered the parties to participate in a
27 DNA test. In May 2010, the results showed conclusively that Mr. Sullivan was Jonah's
28 father. This was the second paternity test to show the same results (the first was done in
1 February 2008, soon after Jonah's birth). Both the San Diego and Alabama courts found that
2 Mr. Sullivan isJonah's biological father.3 Allowing Defendant to question the San Diego court's authority to make the child
4 custody order (or to question Jonah's paternity) would simply allow her to relitigate issues
5 that were previously ruled upon. "The bar of collateral estoppel prevents relitigation of an
6 issue actually and necessarily decided in a previous civil or criminal action. [Citations.]"
7 (People v. Howie (1995) 41 Cal.App.4th 729, 736.) Allowing any collateral attack on the
8 2011 custody order would also fly in the face of good public policy - not only would it
9 undermine the finality of a judgment, but it would encourage people who are unhappy with
10 the ruling in their family law cases to abduct their children, and then relitigate the order they
11 did not like when they get charged with a crime. Lastly, a collateral attack on the 2011
12 custody order would cause an undue consumption of time and thus should be excluded
13 pursuant to Evidence Code 352.
14 Finally, Penal Code 278.5 does not require the violation of a valid court order (as it
15 once did). Rather, the crime simply requires proof that the victim was a lawful custodian.
16 As Jonah's father, Mr. Sullivan was, by statute, a lawful custodian. This is true whether or
17 not there was a custody order in place. The existence of the custody order is simply further
18 evidence of his status as a lawful custodian.
19 Once the court excludes any collateral attack on the 2011 San Diego custody order,
20 the court should admonish Defendant and her witnesses to not discuss the matter in front of
21 the jury - during testimony or in hallway conversation.
2223
24
25
2627
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4. The Court should Exclude Use of the Term "Legal Kidnapping" and any Similar
Expressions
Defendant has used the term "legal kidnapping" in the past to refer to the placement
of Jonah with Mr. Sullivan pursuant to a valid child custody order. While this term may
describe how Defendant feels about her child's father getting custody of him, it is not a real
term of law. Instead, it is a highly prejudicial combination of words that may confuse some
16
1 jurors about whether Mr. Sullivan had previously taken his son in violation of the law,
2 necessitating undue consumption of court time and resources to establish that he has not
3 done so. Therefore, the People ask this court to prohibit Defendant and any defense
4 witnesses from using this, or any similar, terms.
5
6 5. The Court should Prohibit Defendant trom Stating her Appearance and Questioning
7 the Court's Jurisdiction in Front ofthe Jury
8 At almost every appearance in this case, Defendant has addressed the court to say that
9 she is specially appearing as a sovereign of the State of Alabama. She then proceeds to
10 question the court's jurisdiction to hear this criminal case and ask for this case to be
11 transferred to an "Article Three" court. While such statements have been tolerated by the
12 bench thus far, the People respectfully request that the trial court prohibit the Defendant fro
13 making such statements in front of the jury. They serve no legitimate legal purpose, they
14 will be an unnecessary use ofthe court's time, and they will only lead to jury confusion.
15
16 6. The Court should Obtain the Family Court file, Case #DN153612, so that the Court
17 can take Judicial Notice of Relevant Court Orders Contained therein
18 For the convenience of the court and the parties, the People respectfully ask that the
19 family court file, # DN153612 from the San Diego Superior Court in Vista, be sent to the
20 trial department. The court can then review that file as necessary for any issues related to it
21 that arise in the criminal case, and can also take judicial notice of court orders made in that
22 case.
23 II
24 II25 II
26 II
27 II
28 II
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1 7. Motion tor Discovery
2 The People request names, contact information, and reports of all statements given by
3 any potential defense witnesses.4
5 Dated: March 19, 2014
67
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Respectfully submitted,BONNIE DUMANISDistrict Attorney
~~~
By: JILL LINDBERG
Deputy District Attorney
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