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BONNIE DUMANIS District Attorney JILL LINDBERG

MAR 2 1 2l 4

Deputy District Attorney

State Bar Number 203988 330 W. Broadway San Diego, CA 92101 (619) 531-4300

Attorneys for Plaintiff


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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff,
v.

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I;:~~~ No. SCD242 110


1\ REPLY BRIEF
Motions Date: March 21,2014 Time: 9:00 a.m. Dept.: 55 DA ADF517

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TAMMY CHERIE RIEF, Defendant.

Comes now the plaintiff, the People of the State of California, by and through their attorneys, BONNIE DUMANIS, District Attorney, and JILL LINDBERG, Deputy District Attorney, and respectfully submits the following Trial Brief.

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PEOPLE'S RESPONSE TO DEFENDANT'S IN LIMINE MOTIONS


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Motion to Exclude Witnesses The People concur with the defense motion to exclude witnesses from the courtroom,

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except for the People's investigating officer, Carole Snyder.

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Course of the Trial on Matters Relating to the Case The People agree that witnesses should be admonished not to discuss their testimony

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until the trial is over. However, the People would object to a broad ruling that witnesses not communicate on all matters regarding the case. It will likely be necessary for the People's investigating officer to communicate with witnesses regarding location and timing of the case, and it is quite possible that the investigating officer may need to conduct additional interviews of witnesses depending on how the evidence comes out at trial.

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3.

Motion to Federalize Objections The People submit on the defense request to federalize objections, except for the

defense request to object to the prosecutor's argument by saying "prosecution error." While the People's representative does not anticipate making any statements to draw such an objection, if such an instance occurs, the People think it more appropriate to approach sidebar to discuss the specifics of the objection. The People also oppose the suggestion that the court should consider any objection to the People'S argument as a request to make a finding of misconduct. There is a vast difference between error and misconduct, and the People should have an adequate opportunity to respond to any allegation of misconduct. Such an opportunity is unlikely to occur in the middle of opening statement or closing argument, but would instead require a separate hearing outside the presence of the jury.

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Motion to Admit Evidence of Defendant's Alleged Be lief that the Child would be As previously explained in the People's in limine motions, Defendant should not be

Exposed to Harm if Placed in his Father's Care anv further

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allowed to argue the defenses of necessity or 'good cause' under Penal Code 278.7. Although Defendant may be permitted to present some evidence to raise a reasonable doubt about the element of 'malice,' such evidence must be relevant. The People submit that testimony about bruises and scrapes that occurred long before the abduction are not relevant to whether she 'maliciously' committed the instant offense. Specifically, the People seek to exclude all testimony and evidence regarding alleged neglect or abuse that occurred prior to

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the Family Court's ruling on June 23, 2011.

A. 1.

Specific Incidents Alleged by Defendant

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November 2009: On November 8, 2009, following a visit with Mr. Sullivan that

ended mid-day on November 7th, Defendant took Jonah to a hospital in Scottsdale, Arizona. Jonah had bruises above his cheek bones and a 1 em. scratch on his right cheek. He had two light red scratches lateral to his right eye. He had some red marks on his right arm and left foot. He had a few scabs and a bruise on his shins. Defendant stated that the child had been listless and not sleeping well since he was returned to her. Per the Scottsdale Police Department's crime scene specialist who photographed Jonah's injuries, Defendant pointed out that the child had a red area around the buttocks, but no obvious injury. The nursing staf at the hospital reported that Jonah had no internal injuries or other issues of concern. They could not say how Jonah got his bruises. Notably, Defendant told the officer who responded to the hospital that a friend of hers video recorded the meeting when she got Jonah back fro his visit with his father. She also stated that she confronted Mr. Sullivan about the marks and stated that he did not answer her questions. Defendant also explained to the officer how there was an ongoing custody issue over the child. There appears to be no additional law enforcement involvement after the report was taken.

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From the facts noted above, it is clear that although Jonah had some very minor physical injuries, Defendant's reports of those injuries were designed to facilitate her

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1 position in the Family Court case. There is no evidence that those injuries were anything 2
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other than accidental, and there is no reason to believe that they contributed to Defendant's actions two and half years later to abduct her son and keep him from his father. Thus, all testimony regarding such injuries should be excluded. 2. June 1, 2010: On this date, Defendant took Jonah to see his pediatrician. As noted

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the medical records, Jonah was 2 years and 5 months old at the time. He had a boil type lesion on his abdomen and symptoms of a cold. Defendant noted that he had come back from visiting his father the day before and had the boil when he returned. She stated that after his return, Jonah was having temper tantrums, was very fussy, and not himself. There was no police report made, nor any report to CWS. There is no information that there was any neglect or abuse of Jonah while at Mr. Sullivan's. Thus, testimony about this incident should be excluded at trial as it has no bearing on the subject of whether Defendant 'maliciously' abducted her child almost two years later. 3. April 7, 2011: The People have no information on this possible incident and would

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ask that testimony of it be excluded unless a proffer of what it is and how it is relevant is made.

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the People submit that testimony regarding these incidents should be excluded from the criminal trial. Undoubtedly this 'evidence' was

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a time period during which she followed the court order and did not prevent Mr. Sullivan from being with his child. Thus, these incidents do not seem to have made Defendant fearful for her son's welfare and should therefore be excluded from the trial. June 2011: On June 20, 2011, Defendant called police to report that when she ..., ..., . "'. ,

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up Jonah from his two day visit with his father, the child had some bruises and minor abrasions on him that had not been there when she dropped him off. She reported that she asked the child how he had gotten the bruises and he first said "some boys did it." When she asked him again and pointed to a faint bruise on his cheek, he said, "daddy." The SDPD officer saw a very faint bruise on his left cheekbone, a small abrasion on the inside of his right forearm, and a faint bruise on his left hip, as well as a small bruise on his left elbow. The officer did not ask Jonah directly what happened. It appears that there was no CWS report made of the incident. Given that there was no substantiation of Defendant's claims,

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given that any information about the cause of the minor injuries is hearsay, given that this report was made three days before the Family Court ruled in the child custody matter, and given that Defendant did not abduct her child at her first opportunity once the custody order was made, it is clear that this incident did not playa part in her decision to abduct her child 10 months later. Therefore, it should be excluded at trial.

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June 27, 2011: The People have no information on this possible incident and would

ask that testimony of it be excluded unless a proffer of what it is and how it is relevant is made.

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abuse

occurred or

when it came to Defendant's attention. Therefore, such highly inflammatory and unproven allegations should be excluded from the trial. In summary, aside from actual observations of minor injuries, all evidence indicating that Mr. Sullivan or his girlfriend or his father caused these injuries is hearsay, as is any testimony about Accordingly, all such evidence should be excluded.

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Any direct evidence of such alleged abuse should be limited to the relevant time period, which is between June 23, 2011 and April 30, 2012 (the date of the abduction). Moreover, if Defendant's witnesses are allowed to testify about their observations, the court should hold an Evidence Code 402 hearing prior to their testimony, so that the court can be assured that multiple layers of) hearsay.

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Motion to Exclude Opinion Testimony about whether Defendant Had a Good Faith Harm to the Child

and Reasonable BeliefofPossible

The People do not intend to solicit such opinion testimony. However, if the defense presents testimony about alleged injuries to the child or testimony regarding reports made by Defendant regarding such alleged injuries, the People have the right to rebut such testimony. This rebuttal evidence may take the form oftestimony by Mr. Sullivan or Ms. Glaser that

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This is not opinion evidence, but rather, it is factual information for the jury's consideration and it is relevant to rebut Defendant's claims of harm to the child.

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Motion to Exclude Evidence of other Court Order Violations by Defendant Evidence of Defendant's prior violations of court orders is admissible pursuant to

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Evidence Code 1101(b). Specifically, the evidence is relevant to Defendant's motive and

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intent in the instant offense. Defendant seeks to portray herself as a protective mother who kept her son from his father because she feared he would come to harm in his father's care. She disputes the element of "malice" that is part of a violation of Penal Code 278. However, her numerous violations of prior court orders, which range from failing to produce the child at an Alabama court hearing in 2010, to preventing SKYPE calls and in person visits between the child and his father, demonstrate a pattern of behavior which shows that her intent was not to protect her son, but rather, to prevent Mr. Sullivan from seeing his son. Thus, Defendant's prior acts of frustrating visitation and violations of court orders are

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relevant to rebutting her defense, and should be admissible.

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Dated: March 20,2014

Respectfully submitted, BONNIE DUMANIS District Attorney

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By: Deputy District Attorney

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