From Casetext: Smarter Legal Research

People v. Sullivant

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 30, 2012
B229789 (Cal. Ct. App. Jan. 30, 2012)

Opinion

B229789

01-30-2012

THE PEOPLE, Plaintiff and Respondent, v. SHARI L. SULLIVANT, Defendant and Appellant.

Elizabeth Lopez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. KA089176)

APPEAL from a judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Affirmed.

Elizabeth Lopez, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Shari Lynn Sullivant was charged with three counts of first degree residential burglary in violation of Penal Code section 459 and one count of grand theft in violation of Penal Code section 487, subdivision (a). Following pleas of not guilty as to all charges, a jury convicted appellant of all four counts. Appellant was sentenced to state prison for a total of six years and was given 106 days of custody credit. This appeal followed.

Appellant was sentenced to four years on count one, one year four months on count three and eight months on count four. A concurrent term of four years was imposed for count two.

FACTS

1. Background

Tina Freeman, the victim, owned two bars located in Covina and West Covina. After money had been taken from one of the bars in a burglary, Freeman started to take money home from the bars every night. She segregated the money into plastic pouches labeled for her needs, such as utilities, payroll and insurance.

Freeman and appellant had been friends for 40 years. They lived across the street from each other; appellant visited Freeman almost every day. Appellant had two 5-year-old children and Freeman had a daughter seven years old. Appellant's children would also come over to Freeman's house.

According to Freeman, appellant would not go into any of the rooms in Freeman's four-bedroom house without first asking Freeman for permission. Freeman and appellant would spend time in the backyard by the pool. When asked whether the relationship with appellant was such that she would go through Freeman's purse, Freeman answered "never" and went on to state that there was no agreement that permitted appellant to take money from Freeman's purse. Freeman testified that she had not given appellant permission to go through drawers in her home.

About seven years ago, Freeman started noticing that $400, $300 and lesser amounts were missing from the pouch in which she brought money home from the bars. At one point in time, Freeman reported these losses to the police in appellant's presence. Freeman thought that the thief had been Bernice , who was taking care of Freeman's mother. When confronted, Bernice said that it was appellant who had taken the money. Freeman fired Bernice on the spot because "I never thought my friend would ever steal my money."

The trial took place in November and December 2010.
--------

2. October 5 through 9, 2009; a Hidden Camera is Installed

On October 5, 6 and 9, 2009, respectively, $200, $120 and $340 disappeared from various locations and containers in Freeman's house. Appellant had been in Freeman's house on all three days.

Freeman had a camera, hidden in a boom box, installed on October 9, 2009, by a service specializing in such apparatus; the camera was activated by a motion sensor.

3. October 9 and 10, 2009; Appellant on Camera

Appellant visited Freeman on October 9. At one point in the visit, appellant excused herself to check on her daughter. Later, Freeman noticed that money was missing from her purse, which she had left in her bedroom. She didn't know how to download the hidden camera and so this was left for the next day.

The next day, appellant visited again and she once again excused herself to help her daughter in the restroom. Freeman had left her purse in the bedroom. Later, Freeman determined that $100 was missing from her purse.

Freeman testified that neither on October 9 nor on October 10 did she give appellant permission to go into the bedroom and to go through her, Freeman's, purse.

Freeman was given instructions on how to download the camera and she did so on October 10, 2009. These videos were shown to the jury. They show appellant in Freeman's bedroom going through Freeman's purse and pulling money from the purse. Freeman reiterated that she did not give appellant permission to be in the bedroom and did not give her permission to go through her purse.

4. Aftermath

On October 11, 2009, Freeman called appellant and left a message that Freeman had dropped off some things that appellant had left at her house "and that I now knew who my thief was. I know she was the one stealing my money all these years, and don't ever come around my family. Don't ever call me again. And that was it."

Freeman did not call the police right away "[b]ecause she was my lifetime friend, and our children played together almost every day of their lives."

Between October 15 and October 30, 2009, Freeman learned that appellant was threatening Freeman's family, Freeman's mother and daughter and Freeman herself.

On October 30, 2009, Deputy Sheriff Aaron Scheller came to Freeman's house in order to investigate a report of criminal threats. Freeman played a recording of a conversation between appellant and appellant's husband, which the latter had given to Freeman. (Appellant and her husband were divorcing.) In the conversation, appellant appears to be very upset and is heard saying: "'I want to burn her house down'" and "'I'm going to get that bitch'" and other like profanities. Deputy Scheller arrested appellant on October 31, 2009.

The final scene was played a year later, in November 2010, when Freeman saw some police officers across the street and, overwrought by a year of tension, Freeman ran across the street and threatened appellant, for which Freeman was arrested.

5. The Defense Case

In substance, appellant's defense was that Freeman was holding appellant's money in Freeman's bedroom and that appellant was free to enter and get her money there any time. Specifically, appellant claimed that Freeman was holding $5,000 for appellant, which the latter was hiding from her husband. Needless to say, Freeman denied that she ever held money for appellant.

Appellant sought to corroborate her theory of the case with the testimony of a business partner.

Appellant admitted that she pleaded no contest in 2006 to a felony grand theft charge; the charge involved a rare coin collection valued at $40,000.

DISCUSSION

I. It Was Not Error to Admit Deputy Scheller's Testimony

(a) Procedural Background

Freeman did not report the thefts to the police upon discovering that appellant was the thief. In fact, she did not report them to the police until October 30, 2009. The thefts had been going on for years and apparently involved substantial amounts of money. The reason for the delay was relevant.

The first time that the delay in reporting the thefts to the police was mentioned in the trial was when the district attorney asked Freeman during direct examination whether something had happened between October 15 and October 30 that prompted Freeman to call the police. When Freeman said yes, the district attorney asked: "And I don't want to know if any statements were made or not, but just basically in a gist [sic] without saying what the statements were made." Freeman answered: "I learned that she had threatened my family, my mother, my daughter and myself." The trial court immediately intervened sua sponte, cautioning the jury that the statement was not admitted to show that the threats had been made, but "only to explain [Freeman's] actions in acting on that information in terms of her follow-up in this matter. . . . [It] explains her conduct thereafter."

Deputy Sheriff Scheller was the prosecution's next witness. When the district attorney asked him whether appellant had made any threats on the tape-recorded telephone conversation, defense counsel stated: "Objection. 352. Relevancy. Hearsay." The objection was overruled and Deputy Scheller testified about appellant's statements ("'I want to burn her house down'" and "'I'm going to get that bitch'").

After Deputy Scheller was excused and the jury left the courtroom, the defense moved for a mistrial, contending that the deputy's testimony was inadmissible and prejudicial. The trial court denied the motion, principally on the ground that the defense had failed to object.

On appeal, appellant contends that Freeman's explanation of why she delayed in reporting the thefts was adequate and that Deputy Scheller's testimony "conveyed gratuitous detail" and was not probative, in that appellant's actions after October 10, 2009, had no bearing on the truth of the charges against appellant.

(b) Appellant Has Forfeited the Issue; Moreover, Deputy Scheller's Testimony Was Admissible

In denying the motion for a mistrial, the trial court was both right and wrong in stating that the defense had not objected to testimony that appellant had threatened Freeman and her family. It is true that the defense had not objected to Freeman's testimony on this issue, but the defense did object to Scheller's testimony. "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." (Evid. Code, § 356.)

If testimony that appellant had threatened Freeman and her family is admissible, it is hard to see why testimony about the actual threats made is inadmissible. After all, threats can be made in all sorts of ways and the nature of the threats is germane. As an example, appellant may have muttered at one point that "I don't know how, but one day I'll get even with her," which is quite different from the shrill and strident "I want to burn her house down" and "I'm going to get that bitch," which is what appellant actually said. As Witkin observes, the purpose of the rule laid down in Evidence Code section 356 is to ensure that statements are viewed in their proper context (1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 36, p. 368) which, in this case, is that the threats were sufficiently grave to overcome Freeman's reluctance to report her lifelong friend to the police.

Appellant attempts to distinguish between Freeman's generalized statement about threats and Deputy Scheller's testimony that stated the actual threats by contending that the latter painted appellant as a person prone to violence and "likely made her seem petty and unlikable to the jury." But the evidence was not admitted to show what kind of person appellant was. The jury was instructed that evidence about threats was received not to prove that threats had been made, but to explain Freeman's conduct. Appellant's thievery had gone on for years and the sums taken were not inconsiderable. Thus, Freeman's decision not to report appellant to the police impinged on Freeman's credibility, unless the ties between the two women were close. As it was, it took grave and strident threats by appellant to get Freeman to change her mind. In other words, the tenor of the threats is germane in explaining Freeman's behavior. And that is why this evidence was admitted.

Once the fact of threats was received in evidence without objection, the actual threats made were also admissible under Evidence Code section 356. In sum, appellant forfeited the issue when she failed to object to Freeman's testimony about the threats.

Even apart from Evidence Code section 356, in light of the trial court's admonition, there was no error in the admission of the evidence about threats uttered by appellant. In substance, appellant's argument that the actual threats made were inadmissible is predicated on the claim that they put appellant in a bad light. This argument is based on Evidence Code section 352 which was, in fact, the basis for the objection propounded at trial. This ruling is reviewed under the abuse of discretion standard. (People v. Lee (2011) 51 Cal.4th 620, 643.) Given the court's prompt admonition limiting the use to which this evidence could be put by the jury, we find no abuse of discretion in this ruling.

(c) Prejudice

Finally, we are unable to see how Deputy Scheller's testimony about the actual threats made was prejudicial. The videotapes showed appellant rifling through her friend's purse and taking some of Freeman's money. This said it all, since the idea of Freeman's agreeing to have appellant go through her purse to take money from the purse is implausible, even if Freeman's vehement denials of such an arrangement are ignored, as they should not be. The circumstance that appellant was also unpleasant enough to threaten Freeman is an unnecessary postscript when it comes to proving burglary and grand theft.

II. There Was No Instructional Error

In connection with appellant's 2006 conviction for theft, the court instructed the jury in the terms of CALCRIM No. 375. In essence, this instruction permitted the jury to consider this prior conviction, provided it found that it had been proven by a preponderance of the evidence, for the purpose of determining whether appellant "reasonably and in good faith believed that Tina Freeman consented." Appellant, who unsuccessfully requested that "reasonably" be deleted from the instruction, contends on appeal that this was in error, in that the claim of right defense is predicated on a good faith, and not a reasonable, belief.

As respondent points out, the jury was separately instructed on the claim of right defense, which is set forth in CALCRIM No. 1863. This instruction contains the following sentence: "The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable."

CALCRIM No. 375 is not an instruction on the claim of right defense. The passage from this instruction which we have quoted describes the contention that appellant advanced, which was that she believed reasonably and in good faith that Freeman had consented. The passage from CALCRIM No. 1863 which we have quoted is a correct statement of the law, as appellant and respondent agree. (People v. Tufunga (1999) 21 Cal.4th 935, 938.)

There is no conflict between the two instructions since they served different purposes. We therefore conclude there was no instructional error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J. We concur:

DOI TODD, J.

ASHMANN-GERST, J.


Summaries of

People v. Sullivant

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 30, 2012
B229789 (Cal. Ct. App. Jan. 30, 2012)
Case details for

People v. Sullivant

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHARI L. SULLIVANT, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Jan 30, 2012

Citations

B229789 (Cal. Ct. App. Jan. 30, 2012)