Ellison
Filed
8/27/12 P. v. Ellison CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
PHILLIP ELLISON,
Defendant and
Appellant.
F061093
(Super.
Ct. No. BF122622A)
APPEAL from
a judgment of the Superior Court of
Joseph
Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert C.
Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant
Phillip Ellison was charged with premeditated murder committed during the
(Pen. Code, §§ 187, 190.2, subd. (a)(17)(C); count 1) and
count 2). He was further alleged to have
suffered a prior serious felony conviction under the “Three Strikes†law. (Id.,
§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e).) His first trial ended in a mistrial prior to
opening statements. Following a second
trial, a jury convicted him as charged and found the prior conviction allegation
to be true. The People having elected
not to seek the death penalty, defendant was sentenced to prison for a total
unstayed term of life without the possibility of parole. On appeal, he raises claims of insufficient
evidence, and trial and sentencing error.
For the reasons that follow, we affirm.
FACTS
I
Evidence
As of March
19, 2007, 14-year-old Jamesha Terry was a healthy eighth-grade student who
resided in California City with family.
defendant, a relative by marriage, as an uncle, and sometimes had him babysit
her children. In March, defendant lived
in the Desert Edge Apartments on California City Boulevard, across the street
from the Aspen Mall. He did not have a
vehicle. Jamesha’s mother prohibited
Jamesha from going to defendant’s home alone due to an earlier incident.
went to defendant’s apartment were a month or two before March. On one occasion, Jamesha went with her mother
and stepfather to sell some candy to children who were at defendant’s
apartment. Jamesha did not actually go
inside the apartment. On the other
occasion, Davis picked Jamesha up at defendant’s apartment because Jamesha
called and said she was being followed by somebody in a white truck and had run
to safety at the apartment.
At
approximately 3:38 p.m. on Monday, March 19, Jamesha got off the school bus at
the Cal City Market bus stop, which was located behind the Aspen Mall, about
half a mile east of Jamesha’s home. She
had a Betty Boop backpack. Nothing
appeared out of the ordinary; the bus driver did not see Jamesha have contact
with anyone when she got off the bus.
The last the driver saw, Jamesha was walking alone toward the mall.
That day,
Davis and her husband went to Lancaster.
About 7:00 that evening, her son telephoned to report that Jamesha had
not yet come home. Davis contacted
Jamesha’s teacher, who in turn contacted the bus driver. Davis contacted defendant to ask if he had
seen Jamesha. He sounded concerned, and
offered to help look for her. Davis
picked him up, and they went to the bus stop at which Jamesha had been dropped
off, but found no sign of the girl.
name="_ftnref3" title="">[3] Davis then contacted the police.
Flyers
bearing Jamesha’s picture were posted and passed out around town, and Davis and
her family continued to look for Jamesha.
Davis was in daily contact with the police for the two weeks Jamesha was
missing. Initially, Davis also had daily
contact with defendant. After the first
week, however, he started acting differently.
Davis had to beg him to come to her house, which was unusual. He was also really quiet, which was unlike
him.
Bernardo
Parada’s family ran a Mexican restaurant at the Aspen Mall. One afternoon in March, Bernardo discovered
some schoolbooks in the restaurant’s dumpster.
The books, which were right on top, had not been there when he took out
the trash the day before. Jamesha’s name
was on the front page of a workbook.
Besides the books, Bernardo saw a pink backpack that had a few tears in
it, and also a burned blanket.
The police
were notified on March 28, and Lieutenant Bell and Officer Joseph contacted
Bernardo at the restaurant. He directed
them to the restaurant’s dumpster behind the mall. Seized was a white plastic trash bag
containing a candy bag, some papers and books, and pieces of Jamesha’s pink
Betty Boop backpack.
name="_ftnref4" title="">[4] On top of the restaurant’s trash,
those made by the electric stovetop in defendant’s apartment, although there
was insufficient detail in the burn patterns on the blanket to specifically
associate them with that particular stovetop.
Defendant’s
semen was found in several places on the blanket.
blanket, mostly on the edges of the charred spots. Some of the blood stains had overlapping
charring, indicating the blood was there before the burn marks. Trace evidence found on the blanket during
laboratory examination included a cigarette butt bearing defendant’s DNA; some
hairs, grass and other natural debris; and a piece of the pink backpack.
Enfolded in
the blanket were some towels and a washcloth with a bar of soap wrapped in
it. Defendant’s semen was found on one
towel, and Jamesha’s blood was found on another towel and the washcloth. The soap appeared to have been rubbed down
quite a bit, and spots on it tested positive for blood. Carpet fibers found on the towels were
microscopically and chemically similar to the carpeting in defendant’s
apartment.
Sara Parada
was Bernardo’s mother. At some point, a
person who said he was the missing girl’s uncle came to the restaurant and
asked what the police had said and what the Paradas had found. The man, who had been a customer in the
restaurant before, was African-American, used a cane, and walked toward the
apartments across the street when he left.
Mrs. Parada identified defendant as this man when shown photographs by
an investigator for the district attorney’s office on August 29, 2008.
As of
March, Laura Cota managed the Desert Edge Apartments. She and her son, Carlos, who was about 11,
lived in one of the apartments.
Defendant lived in apartment 25, which was on the second
floor. In March, none of the other
second-floor apartments were occupied.
Cota stored things in apartment 12 including pieces of old beige
carpet. She did not always keep that
apartment locked. Cota and Carlos did
not know Jamesha, but saw the flyers with her photograph and were told by
defendant that Jamesha was his niece and was missing. Cota never saw her at the apartment
complex. Cota owned a dolly. She never loaned it to defendant or saw him
with it. Sometimes she kept it in the
storage area, but sometimes she would leave it by her door.
On Sunday,
April 1, Carlos and three of his friends were walking in “a desert kind of
area†in back of the apartments when they found a body covered with a piece of
carpet. Carlos estimated it was “a
pretty long time†between when he first learned Jamesha was missing and when he
found the body.
Carlos
called the police, and Officer Blanton responded to the scene. The distinctive odor of a decomposing body
was overwhelming, and under the carpet Blanton saw what appeared to be a darker-complected,
dark-haired female. Blanton secured the
scene and contacted Officer Hightower, who was investigating Jamesha’s
missing-person case. When Hightower
looked underneath the carpet, he found a decomposing body subsequently
identified, by dental records, as Jamesha.
Her blue jeans were below the hip area exposing her buttocks. There were no underpants.
the ankles exposing her genitals. Her
bra was unclasped and it, and her white T-shirt, were pulled up almost around
the neckline, exposing her breasts.
One Vans tennis shoe was located
underneath, and the other next to, the body.
A piece of nylon-type rope was found just north of the body. Also found were shoe prints several feet from
the body, and a cigarette butt 20 to 30 feet south of the body.
the body that was visually similar to small plant material subsequently found
inside the stovetop in defendant’s apartment.
Police also
found wheel marks about 30 feet south of the body’s location. The wheel marks ended on the pavement of the
Desert Edge Apartments’ parking lot. The
marks were smooth in consistency, with a wheelbase of about 20 and a half
inches. To Hightower’s knowledge, no
shoe tracks were seen leading from the end of the wheel marks to the body. There were boot tracks that lined up with the
wheel marks, however, as if someone had walked with a cart. There were also wheel marks, consistent with
the smooth wheel, suggesting someone went one direction with the wheeled object
and then came back in the opposite direction.
None of the sole patterns of the footwear seized in this case matched
the boot marks by the wheel tracks.
Having been
informed a body had been found, Davis arrived at the scene close to
midnight. She told Hightower that
defendant was not home, which was unusual.
As a result, Hightower contacted Cota and determined defendant lived in apartment
25 of the Desert Edge Apartments. During
their conversation, Cota stated she had sold defendant a blanket on Friday,
which was also the last day she saw him at the apartment. Cota directed Hightower to apartment 12,
where she kept the items that she sold.
Inside that apartment was a large, beige-colored carpet remnant whose
fibers were microscopically consistent with those of the carpet covering the
body. In one of the stairwells for
defendant’s apartment was a piece of rope that was microscopically consistent
with, and could have come from the same source as, the rope located near the
body.
Defendant’s
apartment was secured by police the night of April 1. Hightower and members of the crime lab
entered it the next day. Between the
time it was secured, with an officer guarding it, and the time Hightower
entered, defendant was not seen at the apartment. Among the items found inside were a teen
magazine, a computer, and school identification for Anita J. It was subsequently determined the computer
had been used to run Internet searches on Jamesha’s case. Multiple searches were conducted, and at
least one news media website featuring a story about Jamesha was accessed,
early on March 29.
The
apartment complex’s dumpster was also searched.
In it was a Southern California Edison bill with defendant’s name and
apartment number information. There were
also four stained pillows, one of which, along with a pillow sham, bore
defendant’s DNA. Some white Adidas
tennis shoes, that were the size worn by defendant and that Davis thought
belonged to him, were located next to the power bill; the right shoe could have
made some, but not all, of the prints found near Jamesha’s body, although it
could not be positively identified as the source of those prints. The dumpster also contained clothing, some of
which Davis and James identified as belonging to Jamesha, and some of which
James identified as belonging to him and to defendant.
Davis was
notified of the positive identification of Jamesha the Friday after the body
was found. Between the time the body was
discovered and the time it was identified, defendant did not contact Davis, a
circumstance she found “odd.â€
Dr. Duong
performed the autopsy on Jamesha. The
body was in a state of decomposition, and showed evidence of insect activity,
skin slippage, discoloration, and bloating.
Duong estimated death occurred several days to a week earlier.
A sexual
assault kit was taken from Jamesha’s body at autopsy. No semen was found on the oral, anal, or
vaginal swabs, although the vaginal swabs were positive for blood. Blood was found on the clothing Jamesha was
wearing, although this was “not surprising†given the state of the body. The clothing was negative for semen. Fingernail swabs and scrapings were also
taken from each hand.
name="_ftnref9" title="">[9] Defendant’s DNA was found on the swab taken
from Jamesha’s left hand.
name="_ftnref10" title="">[10]
An external
examination of the body showed no type of injury. Internal examination showed no injury or type
of disease that could have contributed to Jamesha’s death. Because of the condition of the body, Duong
could not rule in or rule out the presence of petechiae in the eyes or skin,
such as would occur in asphyxia due to strangulation or smothering, or injuries
to the neck consistent with manual or ligature strangulation. Although the face appeared darker than the
torso, this was not significant to him in determining the cause or manner of
death. The hyoid bone was intact, but
that bone is hard to fracture in individuals under age 25. Similarly, although Duong examined the
genital area and saw no evidence of trauma, the condition of the body again
came into play. No cause of death
appeared in the toxicology report.
Although Duong saw some lividity, because of the condition of the body,
he could not determine how Jamesha was positioned at the time she died. There were no visible external marks on her
wrists or ankles suggesting she was bound.
Because he
did not see any natural cause or any
the cause of death as undetermined, meaning he did not know. As for manner of death, the choices were
natural, accident, suicide, or homicide.
Duong was able to rule out natural, accident, and suicide.
Dr. Cohen,
retired chief forensic pathologist for Riverside County, had performed hundreds
of autopsies on decomposing or decomposed remains and had supervised several
thousand more. In addition, he received
special training in decomposition as part of his formal forensic pathology
training.
Cohen
reviewed Jamesha’s case, including scene and autopsy photographs, Jamesha’s
medical history, Duong’s autopsy report, and the coroner’s investigative
report. Jamesha’s body was moderately to
severely decomposed. The absence of
something that could explain the death naturally allowed Cohen to exclude
natural causes as a possible cause or manner of death. The absence of obvious physical injury also
excluded accidental types of fatality.
The toxicology report, combined with the fact there was no gunshot or
stab wound, also enabled him to exclude suicide.
Based on
the level of decomposition shown in the photographs and the insect activity on
the body, Cohen opined that death occurred more than a few days and less than a
month before the body was found. Jamesha
was reportedly missing for 13 days; what Cohen saw in the photographs of the
body was consistent with Jamesha dying on March 19 and being found on April
1.
According
to Cohen, biological evidence, such as semen or seminal fluid, can become
obscured by decomposition. Beyond three
to five days, detecting such fluids “becomes hit or miss.†After a body has been in a decomposed state
for a week or two, “the absence of detection does not exclude sexual
assault.†Moreover, with a body as
decomposed as Jamesha’s, superficial or minor injuries, such as small cuts or
tears in the mouth, vagina, or rectum, could go undetected, even if Jamesha
bled from them.
Cohen
explained that suffocation (the placing of something over the face to prevent
the passage of air into the airways) can take anywhere from 20 or 30 seconds to
many minutes or longer to kill a person.
A person can suffocate someone by using only their hands or by holding a
pillow over the other person’s face. It
is possible to suffocate a person and leave nothing that would be seen at autopsy,
particularly if there is decomposition.
Based on Cohen’s review of this case and his training and experience,
suffocation was one of the top possible causes of Jamesha’s death.
Cohen
further explained that there are two primary types of strangulation: manual, which is accomplished by use of
hands; and ligature, which is accomplished by use of a ligature such as a belt,
sheet, article of clothing, or other implement that is wrapped around the neck. In both types, the compression of the neck
causes decreased blood flow from the heart to the brain and/or the
reverse. If the veins are compressed so
that the flow of blood from the brain back to the heart is impeded, the head
tends to become engorged with blood, which is called suffusion.
With manual
strangulation, there tends to be a better chance of developing both surface and
internal injuries to the neck. In some
cases, these injuries may be obscured by decomposition. With ligature strangulation, there may be a
furrow or indentation across the neck if the ligature was very narrow and
firm. With broader, softer ligatures
such as clothing or a bed sheet, there may be no marks at all on the neck. Even with decomposition, Cohen would expect
to see a ligature mark if a slender, firm ligature were used. If the ligature were taken away after death,
however, the mark might not tend to resist decomposition as well as if the
ligature were left in place. According
to most literature and studies, the hyoid bone, which is pliable in young
people, is broken in about 30 to 50 percent of cases of manual strangulation,
and less commonly in ligature strangulation.
Petechiae
are pinpoint hemorrhages that are typically found in the eyes or on the face
where there has been compression of the neck.
In cases of strangulation, there tend to be abundant petechiae. In Cohen’s opinion, however, the state of
decomposition did not permit an accurate assessment of Jamesha’s petechiae, as
her eyes were very dark and discolored.
To render a
person unconscious by strangulation may take 15 seconds to a minute. It then takes two to eight minutes for the
heart to stop and the person officially to die.
With a healthy victim, if the force is released, the person will regain
consciousness. Thus, the person doing
the strangulation or suffocation has to continually apply pressure.
Based on
Cohen’s review of Jamesha’s case, strangulation — ligature more than manual,
because of the absence of reported injury to the hyoid bone or strap muscles —
was “high on [his] list†of possible causes of death. In his “best assessment,†much of which was
based on excluding other things, he believed Jamesha died from either ligature
strangulation or suffocation. In Cohen’s
opinion, the photographs taken of Jamesha at autopsy supported this; Jamesha’s
face and head were very dark compared to her shoulders and upper chest. Although with decomposition the body becomes
discolored more in the face and head and then in the rest of the body, in
Jamesha’s case the shoulders and upper chest were quite a bit lighter than the
face and head, possibly indicating neck compression with suffusion. The face and head would turn beet red during
the process of neck compression, and would then appear darker during the
process of decomposition. Cohen could
not be completely certain neck compression occurred, since the head tends to
become more discolored with time than the rest of the body. Almost always, however, the shoulders, neck,
and upper chest are almost as dark as the face and head. Jamesha’s photographs, in contrast, showed
“quite a disparity†between the color of the face and head and the color of the
lower neck and rest of the body. A line
of demarcation could almost be drawn just below the chin, dividing the darker
areas from the lighter areas. Cohen
opined that Jamesha died at the hands of another person. He further opined that the cause of death was
homicidal violence of undetermined origin, and that the manner of death was
homicide.
At some point after the body was
identified, Anita J. contacted Davis and gave information concerning her own
interaction with defendant. She also
told Davis and the police about Angela S.
Anita, who
was a high school student in 2007, was 15 when she first met defendant through
a friend of hers. At the time, defendant
lived in a second-floor unit at the Desert Edge Apartments.
At some
point after she met defendant, Anita started going over to his apartment after
school. She did this several times a
week. Sometimes there were teenage girls
and males in their early 20’s present, while other times Anita went by
herself. There were never any adults
present who were around defendant’s age, which Anita estimated to be
approximately 39 or 40. Defendant
allowed Anita to drink alcohol at his apartment, and he allowed her and the
other teenagers to smoke marijuana there.
Sometimes, Anita and the others spent the night at defendant’s
apartment.
On New
Year’s Eve of 2006, Anita went to a get-together at defendant’s apartment. There were no adults present who were close
to defendant’s age. At the party, people
— including Anita — drank alcohol and smoked marijuana. At some point, Anita decided to go to sleep
on the couch. The last she saw her
friend Angela, Angela was sitting on the bed next to defendant. Anita was the first to go to sleep. When she awoke the next morning, all her
friends were already awake. She believed
Angela and defendant were both on defendant’s bed, although she was not
certain. She did not remember how they
were positioned. Anita and Angela left
together later that morning. After they
left, Angela told Anita something defendant had done to her.
Anita
learned Jamesha was missing on March 19.
She visited defendant’s apartment the next day. The apartment appeared the same as it usually
did. Defendant seemed sad and he talked
about Jamesha being missing.
Angela S.
went to school with Anita and met defendant through her. Angela had contact with defendant on MySpace,
where he was known as “Dimples.†Her
picture was on MySpace, but there was no nudity. In response to a picture in which Angela had
cornrows in her hair and was wearing jeans and a T-shirt, defendant commented
on MySpace that she was looking good.
Angela, who
was 16 years old at the time, met defendant in person on New Year’s Eve day,
2006, when she went to a party at his apartment. Some other teenage girls and some adult males
were there. People were drinking
alcohol, and Angela had some. Nobody was
smoking marijuana. Defendant had a
bottle in his hand, but Angela had no idea what was in it and did not really
see defendant drinking, because she was not paying attention to him. Having seen people in various states of
intoxication, Angela described defendant as “[f]eeling good†that night. Around 2:00 a.m., Angela decided to go to
sleep. In the bathroom, she changed into
a long white T-shirt defendant gave her, but left on her bra and underwear.
defendant’s apartment. Anita was on the
couch, and another couple were on the floor.
The apartment was so small that Angela had nowhere to sleep, so
defendant told her that she could sleep in the bed. Defendant was next to Angela on the bed, and
they both fell asleep. In the middle of
the night, Angela was awakened by defendant’s tongue in her ear. She was lying on her side. He was behind her; he had moved closer and
his body was touching hers. He was
moving his tongue around and rubbing one of her thighs. He moved his hand near her vaginal area,
touching her over her underwear, then touched her stomach. He then moved his hand up to her breasts and
rubbed and squeezed them for several minutes.
She was uncomfortable and did not know what to do, so she tried to move
to show she was awake. Finally, she
moved all the way over on the bed and defendant stopped touching her. She then fell back asleep. The next day, she got up and left shortly
after Anita. Defendant was still
asleep. Angela told Anita what had
happened a couple of days later.
II
Evidence
Ashley Griggs
went to school with Jamesha. About a
week before she learned Jamesha had been reported missing, she overheard
Jamesha say she did not want to be at home and wanted to leave home. Jamesha seemed kind of mad.
Jamesha and
Jon’ell Finney were best friends in 2007.
Finney knew defendant because he was Jamesha’s uncle and the girls
sometimes spent the night at his residence.
When interviewed by FBI Agent Abe on April 30, Finney said that Jamesha
told her things were difficult, life was messed up, and she wanted to run
away. Jamesha said she had no definite
plans to do so as of that point in time, however.
In March,
Maryann Storey owned a pizza restaurant in the Aspen Mall. At about 9:45 p.m., three adults and a child
came in. The woman, who identified
herself as the mother and the two men as the stepfather and uncle, said she was
looking for her daughter. She described
the girl’s clothes and said she had a pink backpack with a Betty Boop logo. Earlier that day, between 3:00 p.m. and 4:00
p.m., Storey had seen someone with such a backpack. This person was with another female
juvenile. They were talking and
giggling. The girl with the backpack
took a couple of steps inside the door, faced the direction of two girls who
were sitting inside, then turned around and walked right back out. It appeared to Storey that the presence of
the two girls inside caused the girl in the pink backpack to leave
quickly. The girl and her companion ran
straight to the Desert Edge Apartments across the street. That was the last Storey saw of them. The girls in the restaurant remained
there.
Officer
Deges interviewed Davis on March 19.
Among other things, she told him that Jamesha recently had been in
several fights; that she had been the victim of several assaults.
Michael
Cash knew Jamesha’s brother, Denzel, and found out through him that Jamesha was
missing. Denzel was passing out flyers
and asked if Cash had seen Jamesha. Cash
related that he had seen her the day before at the library. When Cash saw Jamesha, she was holding hands
with a Black male with cornrows who looked to be somewhere around 30 years old
or in his mid 30’s. The person was
wearing baggy pants and did not limp or use a cane.
Edward
Kittell attended the New Year’s Eve party at defendant’s apartment on December
31, 2006, and spent the night. In
defendant’s apartment, the living room area and bed were basically in the same
room. On the night of the party, Kittell
slept on the floor in front of the television.
When he fell asleep, defendant was already in bed; Angela was on the
couch or the floor. Kittell never saw
her on the bed that night while defendant was sleeping there.
DISCUSSION
I
of the Evidence
Defendant
contends the evidence is insufficient to sustain his convictions for first
degree murder (whether on a theory of premeditation or felony murder) and
attempted rape, and the special circumstance finding. He further contends the trial court deprived
him of due process and a fair trial by denying his motion for acquittal (Pen.
Code, § 1118.1) on the sex allegations.
judgment in its entirety or, at the very least, reverse the conviction on count
2, strike the special circumstance finding, and modify the conviction on count
1 to second degree murder. We disagree.
The test of
sufficiency of the evidence is the same under the due process clauses of both
the federal and state Constitutions. (
113.) We must review the whole record in
the light most favorable to the judgment below to determine whether it
discloses substantial evidence such that a reasonable trier of fact could find
the essential elements of the crime beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which
is “reasonable, credible, and of solid value.â€
(People v. Johnson,
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.†(
425.) An appellate court must not
reweigh the evidence (People v. Culver (1973)
10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve
factual conflicts, as these are functions reserved for the trier of fact (
353, 367). “Where the circumstances
support the trier of fact’s finding of guilt, an appellate court cannot reverse
merely because it believes the evidence is reasonably reconciled with the
defendant’s innocence.
[Citations.]†(
1741, 1747; accord, People v. Cain (1995)
10 Cal.4th 1, 39.) “Instead, the
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
[Citation.]†(
p. 319.) “Reversal on this ground
is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ [Citation.]â€
(People v. Bolin (1998) 18
Cal.4th 297, 331.) “‘[S]ubstantial
evidence’†does not mean mere speculation, however, and a reasonable inference
may not be based on suspicion alone. (
1235; People v. Reyes (1974) 12
Cal.3d 486, 500.)
The
foregoing standard of review is applicable regardless of whether the
prosecution relies primarily on direct or on
1125), and applies to special circumstance allegations as well as substantive
charges (People v. Horning (2004) 34
Cal.4th 871, 901). It is also the
standard applied by the trial court when reviewing a Penal Code section 1118.1
motion, a ruling on which we independently review. (People
v. Harris (2008) 43 Cal.4th 1269, 1286.)
Where, as here, the trial court has denied the motion, “we must … assume
in favor of its order the existence of every fact from which the jury could
have reasonably deduced from the evidence whether the offense charged was
committed and if it was perpetrated by the person or persons accused of the
offense. [Citations.] Accordingly, we may not set aside the trial
court’s denial of the motion on the ground of the insufficiency of the evidence
unless it clearly appears that upon no hypothesis whatsoever is there
sufficient substantial evidence to support the conclusion reached by the court
below. [Citations.]†(People
v. Wong (1973) 35 Cal.App.3d 812, 828.)
Defendant
implicitly concedes the evidence was sufficient to identify him as Jamesha’s
killer. We conclude it was also sufficient
to sustain the jury’s findings of, and the trial court’s denial of defendant’s
Penal Code section 1118.1 motion with respect to, first degree murder,
attempted rape, and the rape-murder special circumstance.
“A killing
‘committed in the perpetration of, or attempt to perpetrate’ one of several
enumerated felonies, including rape, is first degree murder. [Citation.]
The rape-murder special circumstance equally applies to a murder
‘committed while the defendant was engaged in … the commission of, [or]
attempted commission of’ rape.
[Citations.]†(
1129-1130, fn. omitted, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) “Forcible rape is a general intent crime
involving an act of sexual intercourse accomplished against the victim’s will
by means of force or fear.
[Citation.] An attempt to commit
rape has two elements [citation]: the
specific intent to commit rape, and a direct but ineffectual act done towards
its commission. [Citation.] Such act cannot be merely preparatory, and
must constitute direct movement towards completion of the crime. [Citation.]
However, attempted rape does not necessarily require a physical sexual
assault or other sexually ‘“unambiguous[]â€â€™ contact. [Citations.]â€
(People v. DePriest (2007) 42
Cal.4th 1, 48.)
In the
present case, Jamesha’s body was found with her jeans down below her hips, and
her shirt and unclasped bra pushed up above her breasts, exposing her breasts,
genitals, and buttocks. Her underpants —
something she always wore — were missing altogether. Her blood and defendant’s semen were found on
a discarded, partially burned blanket.
Defendant’s DNA was found in the area of the nails of one of her
hands. From this evidence, the jury
reasonably could have inferred defendant attempted to or did have sexual
intercourse with Jamesha, that she struggled or fought him because it was
against her will, that he killed her during the commission of his attempt, and
that he disposed of her body and other evidence. There was simply no reason for Jamesha’s
blood to be on a blanket, defendant’s DNA to be on her nails, her to have been
mostly disrobed and to be missing underpants and have her bra unclasped, and
for defendant to have killed her, unless he tried to have sex with her and she
resisted. Thus, the evidence is
sufficient to sustain the convictions and special circumstance finding even
without considering the other-acts evidence, although that evidence — which
tended to show defendant had a sexual interest in teenage girls in general and
Jamesha in particular — strengthens the inferences that reasonably could be
drawn.
As support
for his proposition that “even with other injuries, moved or torn clothing,
without more, is insufficient to make out a discrete completed or attempted sex
crime beyond a reasonable doubt,â€
defendant relies on People v.
Johnson (1993) 6 Cal.4th 1, 38-42, overruled on another ground in
879; People v. Raley (1992) 2 Cal.4th
870, 889-891; People v. Anderson (1968)
70 Cal.2d 15, 34-36; People v. Granados (1957)
49 Cal.2d 490, 497; and People v. Craig (1957)
49 Cal.2d 313, 318-319. As the
California Supreme Court has stated, however, “the facts of other cases, such
as [those cited by defendant], are not particularly helpful in evaluating the
sufficiency of the evidence in this case.â€
(People v. Rundle, supra, 43
Cal.4th at p. 140.) “While in each
of those cases the condition of the body might have suggested some sexual
motive in the killing, no evidence supporting more than a strong suspicion
thereof was adduced. Hence in
defendant had ever formed any lewd or sexual feelings toward the victim, and a
laceration in the vaginal area appeared to be only one of several randomly
inflicted wounds. [Citation.] In Granados,
while defendant had asked the victim whether she was a virgin and, when her
body was found, her skirt was above her private parts, there was no evidence of
contusion or laceration of her private parts or evidence of spermatozoa. [Citation.]
Finally in Craig, while the
victim’s nightgown and panties were torn open exposing the front of her body,
her legs were apart, and defendant had said he would like ‘a little loving,’
there remained no certain evidence of rape.
There was instead evidence he had intentionally ‘beat up a woman,’
strangled her, and dragged the body some 20 to 25 feet. [Citation.]â€
(People v. Hernandez (1988) 47
Cal.3d 315, 347.)
It is true
that Jamesha’s decomposed body provided no evidence of a sexual assault. However, “what the pathologist can say from a
laboratory examination is more limited than what a reasonable trier of fact may
find beyond any reasonable doubt, after considering the evidence as a whole.†(People
v. Chambers (1982) 136 Cal.App.3d 444, 455.) “[U]nlike several of the cases cited by
defendant, here there was no evidence tending to show a sexual assault did
short time after the crime, it is more likely the crime scene and the victim’s
body will show evidence of sexual assault — such as trauma to the body or
sexual organs, or the presence of the perpetrator’s bodily fluids — if such an
assault occurred. An absence of such
evidence in that type of case may be strong evidence the perpetrator did not
have or intend to have sexual contact with the victim, which may tend to
outweigh other facts and inferences, rendering the evidence of sexual assault
legally insufficient. [Citations.] Here, by contrast, the evidence did not tend
to eliminate a sexual assault; it simply was inconclusive due to the nature of
the crime scene and the advanced state of decomposition of [Jamesha’s]
body.†(People v. Rundle, supra, 43 Cal.4th at p. 139.) “Moreover, for the special circumstance or
felony-murder rule, there need not be an actual rape; an attempted rape is
sufficient. [Citation.] Accordingly, the verdict would be supported
if defendant had intended to rape [Jamesha], but she resisted and he killed her
without actually raping her.†(
789.) Here, the fact the body was only
partially clad, with underpants missing and the sex organs exposed when found,
considered in conjunction with the other circumstances we have mentioned,
support the jury’s verdict. (See, e.g.,
Cal.4th 99, 164; People v. Kelly, supra, 42
Cal.4th at p. 789.)
Defendant
also challenges the sufficiency of the evidence to support a finding of first
degree murder based on a theory of premeditation and deliberation. “But because we have concluded defendant’s
first degree murder conviction is adequately supported under the theory of
[rape] felony murder and the jury found true the [rape]-murder special
circumstance, we need not address this point.
[Citations.]†(
1177-1178; accord, People v. Rundle,
supra, 43 Cal.4th at pp. 140-141.)
In any
event, the evidence was sufficient. “A
verdict of deliberate and premeditated first degree murder requires more than a
showing of intent to kill.
[Citation.] ‘Deliberation’ refers
to careful weighing of considerations in forming a course of action;
‘premeditation’ means thought over in advance.
[Citations.] ‘The process of
premeditation and deliberation does not require any extended period of
time. “The true test is not the duration
of time as much as it is the extent of the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly.…†[Citations.]’
[Citation.]†(
1080.) In People v. Anderson,
Supreme Court “said that ‘generally first degree murder convictions are
affirmed when (1) there is evidence of planning, motive, and a method of
killing that tends to establish a preconceived design; (2) extremely
strong evidence of planning; or (3) evidence of motive in conjunction with
either planning or a method of killing that indicates a preconceived design to
kill.’ [Citation.] These factors are not the exclusive means,
however, to establish premeditation and deliberation; for instance, ‘an
execution-style killing may be committed with such calculation that the manner
of killing will support a jury finding of premeditation and deliberation,
despite little or no evidence of planning and motive.’ [Citation.]â€
(People v. Tafoya (2007) 42
Cal.4th 147, 172.)
In the
present case, a reasonable jury readily could have inferred defendant had a
motive for killing Jamesha: to keep her
quiet about his sexual attack on her.
Because of the state of her body, the precise cause of death could not
be determined. However, Dr. Duong could
not rule out asphyxiation as the cause, while Dr. Cohen opined that suffocation
or strangulation was very possible.
Either could take several minutes to cause death. From this evidence, jurors reasonably could
have inferred defendant had time to consider the nature of his actions, and
that he acted pursuant to a deliberate plan to kill. (See, e.g., People v. Solomon (2010) 49 Cal.4th 792, 815; People v. Stitely (2005) 35 Cal.4th 514, 544; People v. Davis (1995) 10 Cal.4th 463, 510.)
In light of
the foregoing, the evidence was sufficient to sustain the jury’s verdicts and
special circumstance finding. Further,
the trial court did not err by denying defendant’s Penal Code section 1118.1
motion.
II
Admission of Evidence of
Uncharged Acts
Defendant
mounts a multifaceted attack on the trial court’s admission of evidence
concerning his prior conduct with Jamesha and Angela S. He says the admission of the evidence,
whether to show propensity, intent, or motive, was prejudicial error that
deprived him of due process, equal protection, and a fair trial. We reject his claims.
A. Background
Prior to
the first trial, defendant moved, in limine, for exclusion of evidence of other
sex crimes. In his written motion, he
contended the evidence to be adduced at trial would be insufficient to
establish rape or attempted rape, and the court should not admit the uncharged
acts unless and until sufficient evidence existed to prove an attempted rape
occurred. The People, in contrast, moved
in limine for admission, pursuant to Evidence Code
of the Angela S. incident and concerning defendant’s conduct toward Anita J.
admissible, under section 1101, subdivision (b), to show defendant’s
intent and motive; the evidence was admissible, under section 1108, to
show defendant’s disposition to commit the charged offense; and the probative
value of the prior acts was not substantially outweighed by potential prejudice
so as to make the evidence inadmissible under section 352. After extensive argument, the trial court
ruled that the evidence regarding Angela was admissible under
section 1101, subdivision (b) as to intent, and was also admissible under
section 1108. The court ruled the
proffered evidence with respect to Anita was inadmissible, except that Anita
could testify concerning the incident with Angela. The court found the evidence concerning the
incident when defendant was babysitting Jamesha and her brothers to be
probative to show intent under section 1101, subdivision (b), and that the
probative value was not outweighed by prejudicial effect.
After the
mistrial, both parties renewed their motions.
The trial court adopted its previous rulings.
The
testimony concerning the two incidents is summarized in the statement of facts,
ante.
B. Analysis
Generally
speaking, section 1101 “prohibits the admission of other-crimes evidence for
the purpose of showing the defendant’s bad character or criminal
propensity.†(People v. Catlin (2001) 26 Cal.4th 81, 145.) Section 1108 is an express exception to that
rule. (§ 1101, subd. (a).)
provides: “In a criminal action in which
the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by
Section 1101, if the evidence is not inadmissible pursuant to
Section 352.†For purposes of the
statute, a sexual offense includes rape, as proscribed by Penal Code
section 261; commission of a lewd or lascivious act, as proscribed by
Penal Code section 288; and annoying or molesting a child under 18, as
proscribed by Penal Code section 647.6; or an attempt to engage in any
such conduct. (§ 1108,
subd. (d)(1)(A), (F).) Section 1108
also applies where the defendant is accused of first degree felony murder with
a crime specified in subdivision (d)(1) of the statute as the underlying
felony. (People v. Story (2009) 45 Cal.4th 1282, 1294.)
Section
1108 represents a determination by the Legislature “that, in a sex offense
prosecution, the need for evidence of prior uncharged sexual misconduct is
particularly critical given the ‘serious and secretive nature of sex crimes and
the often resulting credibility contest at trial’ [citation] .… By removing the restriction on character
evidence in section 1101, section 1108 now ‘permit[s] the jury in sex offense …
cases to consider evidence of prior offenses for any relevant purpose’ [citation], subject only to the
prejudicial effect versus probative value weighing process required by section
352.†(People v. Britt (2002) 104 Cal.App.4th 500, 505.) Section 1108 thus “permits evidence of the
defendant’s commission of ‘another sexual offense or offenses’ to establish the
defendant’s propensity to commit
sexual offenses†(People v. Medina (2003) 114 Cal.App.4th 897, 904), and it allows a
jury to consider “‘“other sexual offenses as evidence of the defendant’s
disposition to commit such crimes, and for its bearing on the probability or
improbability that the defendant has been falsely or mistakenly accused of such
an offense.â€â€™ [Citation.]†(People
v. Falsetta (1999) 21 Cal.4th 903, 912.)
Defendant
contends section 1108 violates due process on its face.
this claim (People v. Falsetta, supra, 21
Cal.4th at pp. 915-918), and has consistently adhered to that holding (
60-61; People v. Wilson (2008) 44
Cal.4th 758, 797). We are bound by those
opinions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
Defendant
also contends section 1108 violates equal protection because it treats those
accused of a sexual offense differently from all other criminal
defendants. “The first prerequisite to a
meritorious claim under the equal protection clause is a showing that the state
has adopted a classification that affects two or more similarly situated groups
in an unequal manner. [Citation.]†(In re
Eric J. (1979) 25 Cal.3d 522, 530, fn. & italics omitted.) Defendant makes no attempt to show those
accused of sexual offenses are similarly situated with respect to all other
criminal defendants. (Cf.
1301, 1311; see generally People v.
Hofsheier (2006) 37 Cal.4th 1185, 1199-1200.)
Assuming
equal protection analysis is appropriate, however, section 1108 does not
infringe on a defendant’s constitutionally protected rights, and so, contrary
to defendant’s contention, only the rational relationship test, and not strict
scrutiny, applies. (People v. Fitch (1997) 55 Cal.App.4th 172, 184 (
Cal.App.4th at p. 1312.)
Section 1108 “withstands this relaxed scrutiny. The Legislature determined that the nature of
sex offenses, both their seriousness and their secretive commission which
results in trials that are primarily credibility contests, justified the
admission of relevant evidence of a defendant’s commission of other sex
offenses. This reasoning provides a
rational basis for the law.… In order to
adopt a constitutionally sound statute, the Legislature need not extend it to
all cases to which it might apply. The
Legislature is free to address a problem one step at a time or even to apply
the remedy to one area and neglect others.
[Citation.]†(
Defendant
further contends section 1108 is unconstitutional as applied to him. This is essentially a claim the trial court
did not “sufficiently and properly evaluate[] the proffered evidence under
section 352. [Citation.]†(People
v. Holford (2012) 203 Cal.App.4th 155, 185; cf. U.S. v. LeMay, supra, 260 F.3d at p. 1026.) “‘[O]nly if there are no permissible inferences the jury may draw from the evidence can
its admission violate due process.’
[Citation.]†(
F.2d 1378, 1384.) Cases in which the
admission of evidence will be said to have violated due process and rendered
the trial fundamentally unfair are “rare and unusual occasions .…†(People
v. Albarran (2007) 149
Cal.App.4th 214, 232.)
We find
neither due process violation nor abuse of discretion, which is the standard by
which we review a trial court’s rulings on relevance and admission of evidence
under section 352. (People v. Loy, supra, 52 Cal.4th at p. 61;
208, 230.)
title="">[21] “‘Relevant
evidence’ means evidence … having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the
action.†(§ 210.) By pleading not guilty, defendant placed all
elements of the murder, attempted rape, and special circumstance in issue at
trial. (People v. Lindberg (2008) 45 Cal.4th 1, 23.)
Section 352
provides: “The court in its discretion
may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.†Under this
statute, “the trial court enjoys broad discretion in assessing whether the
probative value of particular evidence is outweighed by concerns of undue
prejudice, confusion or consumption of time.
[Citation.] Where, as here, a
discretionary power is statutorily vested in the trial court, its exercise of
that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice.
[Citations.]’ [Citation.]†(People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Stated another way, “discretion is abused
whenever the court exceeds the bounds of reason, all of the circumstances being
considered. [Citations.]†(People
v. Giminez (1975) 14 Cal.3d 68, 72.)
The
California Supreme Court has summarized the principles of law applicable to
admissibility of evidence under section 1101 as follows:
“Evidence
Code section 1101, subdivision (a) generally prohibits the admission of
evidence of a prior criminal act against a criminal defendant ‘when offered to
prove his or her conduct on a specified occasion.’ Subdivision (b) of that section, however,
provides that such evidence is admissible when relevant to prove some fact in
issue, such as motive, intent, knowledge, identity, or the existence of a
common design or plan.
“‘The
admissibility of other crimes evidence depends on (1) the materiality of
the facts sought to be proved, (2) the tendency of the uncharged crimes to
prove those facts, and (3) the existence of any rule or policy requiring
exclusion of the evidence.’
[Citation.] Evidence may be
excluded under Evidence Code section 352 if its probative value is
‘substantially outweighed by the probability that its admission would create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.’ [Citation.] ‘Because substantial prejudice is inherent in
the case of uncharged offenses, such evidence is admissible only if it has
substantial probative value.’
[Citation.]
“We
have considered specific circumstances under which evidence of uncharged crimes
may be admitted under subdivision (b) of Evidence Code section 1101. When the prosecution seeks to prove the
defendant’s identity as the perpetrator of the charged offense with evidence he
had committed uncharged offenses, the admissibility of evidence of the
uncharged offenses turns on proof that the charged and uncharged offenses share
sufficient distinctive common features to raise an inference of identity. A lesser degree of similarity is required to
establish the existence of a common plan or scheme and still less similarity is
required to establish intent.
[Citations.]†(
pp. 22-23; see also, e.g., People v.
Ewoldt (1994) 7 Cal.4th 380, 402-403.)
Here, the
trial court admitted defendant’s uncharged prior conduct toward Angela and
Jamesha to show intent. To be admissible
for this purpose, “the prior conduct and the charged offense need only be
sufficiently similar to support the inference that defendant probably harbored
the same intent in each instance.
[Citation.]†(
121-122.) The trial court did not exceed
the bounds of reason by concluding both incidents met this standard. Angela and Jamesha were around the same age (indeed,
the prior incident involving Jamesha involved the same victim as the charged
offenses); at some point during the course of the uncharged events involving
Angela and the charged events involving Jamesha, some or all of the girl’s
clothing was removed, whether by the girl herself in order to change or for
some other reason; and, both of the uncharged events involved a bed, while the
existence of defendant’s semen and Jamesha’s blood on the blanket gives rise to
a reasonable inference a bed was involved in the charged events. Considering the similarities not in
isolation, but rather as a whole, we conclude the trial court did not abuse its
discretion by admitting defendant’s prior conduct on the issue of intent. (See, e.g., People v. Jones (2011) 51 Cal.4th 346, 370-371 [evidence of
defendant’s participation in robbery of three men leaving store properly
admitted in trial of charged home invasion and murder; though crimes were not
particularly similar, “they contained one crucial point of similarity — the intent
to steal from victims whom defendant selectedâ€].)
The trial
court also admitted evidence of the incident involving Angela pursuant to
section 1108. In sex crimes
prosecutions, evidence a defendant committed another sex offense is relevant to
the issue of his disposition or propensity to commit such offenses. (People
v. Reliford (2003) 29 Cal.4th 1007, 1012 (Reliford).) Hence, the
incident involving Angela had probative value.
Concluding
the evidence was relevant does not end our analysis. “Evidence of uncharged offenses ‘is so
prejudicial that its admission requires extremely careful analysis. [Citations.]’
[Citations.]†(
p. 404.) The “prejudice†referred
to in section 352 is not the effect relevant albeit damaging evidence may have
on a party’s case, but rather “‘characteriz[es] evidence that uniquely tends to
evoke an emotional bias against a party as an individual, while having only
slight probative value with regard to the issues. [Citation.]’â€
(People v. Scheid (1997) 16
Cal.4th 1, 19.) As a result, evidence
should be excluded as unduly prejudicial “‘when it is of such nature as to
inflame the emotions of the jury, motivating [jurors] to use the information,
not to logically evaluate the point upon which it is relevant, but to reward or
punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is
unduly prejudicial because of the substantial likelihood the jury will use it for
an illegitimate purpose.’ [Citation.]†(People
v. Escudero (2010) 183 Cal.App.4th 302, 310.)
“The
factors to be considered by a trial court in conducting the Evidence Code
section 352 weighing process depend upon ‘the unique facts and issues of
each case.…’ [Citation.]†(People
v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.) Where subdivision (b) of section 1101 is
concerned, the pertinent factors include whether the evidence “‘(a) “tends
logically, naturally and by reasonable inference†to prove the issue upon which
it is offered; (b) is offered upon an issue which will ultimately prove to
be material to the People’s case; and (c) is not merely cumulative with
respect to other evidence which the People may use to prove the same
issue.’ [Citation.]†(People
v. Guerrero (1976) 16 Cal.3d 719, 724; see also People v. Ewoldt, supra, 7 Cal.4th at pp. 404-406.) “In exercising [section 352] discretion as to
a sexual offense, ‘trial judges must consider such factors as its nature,
relevance, and possible remoteness, the degree of certainty of its commission
and the likelihood of confusing, misleading, or distracting the jurors from
their main inquiry, its similarity to the charged offense, its likely
prejudicial impact on the jurors, the burden on the defendant in defending
against the uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some but not all of
the defendant’s other sex offenses, or excluding irrelevant though inflammatory
details surrounding the offense.’
[Citation.]†(
p. 61; see also People v. Branch (2001)
91
| Description | Defendant Phillip Ellison was charged with premeditated murder committed during the commission or attempted commission of rape (Pen. Code, §§ 187, 190.2, subd. (a)(17)(C); count 1) and attempted forcible rape (id., §§ 261, subd. (a)(2), 664; count 2). He was further alleged to have suffered a prior serious felony conviction under the “Three Strikes†law. (Id., §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e).) His first trial ended in a mistrial prior to opening statements. Following a second trial, a jury convicted him as charged and found the prior conviction allegation to be true. The People having elected not to seek the death penalty, defendant was sentenced to prison for a total unstayed term of life without the possibility of parole. On appeal, he raises claims of insufficient evidence, and trial and sentencing error. For the reasons that follow, we affirm. |
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