People v. Ellison

• Decision Date: 27 August 2012
• Docket Number: F061093
• Parties: THE PEOPLE, Plaintiff and Respondent, v. PHILLIP ELLISON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. PHILLIP ELLISON, Defendant and Appellant.

F061093

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Dated: August 27, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF122622A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.

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.

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.

FACTS

IPROSECUTION EVIDENCE

As of March 19, 2007, 14-year-old Jamesha Terry was a healthy eighth-grade student who resided in California City with family.¹ Jamesha's mother, Melodie Davis, thought of 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.² To Davis's knowledge, the only times Jamesha went to defendant'sapartment 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.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.⁴ On top of the restaurant's trash, Bell found, among other items, a folded blanket. Burn marks on the blanket visually resembled 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.⁵ Jamesha's blood was found on areas of the 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 whenhe 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.⁶ Her knees were apart with her legs crossed at 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.⁷ There was tree vegetation on the ground near the body that was visually similar to small plant material subsequently found inside the stovetop in defendant's apartment.⁸

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...