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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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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.

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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

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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)

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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.

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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

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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.

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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

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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

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(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

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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.

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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)

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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

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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.

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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

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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

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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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