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Ellison v. Sisto

November 30, 2009

ROSS BRIAN ELLISON, PETITIONER,
v.
D.K. SISTO, RESPONDENT.



The opinion of the court was delivered by: Fred Van Sickle Senior United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

THIS MATTER comes before the Court on Petitioner's Amended Petition For Writ of Habeas Corpus. (Ct. Rec. 22). Petitioner is proceeding pro se. Respondent is represented by Janis Shank McLean, an Assistant Attorney General for the State of California.

BACKGROUND

At the time his petition was filed, Petitioner was in the custody of the California State Prison, Solano, in Vacaville, California, pursuant to his 2004 Yolo County conviction for one count of inflicting corporal injury on his child's mother (Count 1) and one count of misdemeanor child abuse or endangerment (Count 2). The court sentenced Petitioner to an 11-year prison term which was comprised of an upper-term sentence of four years on Count 1, doubled based on a prior strike under Cal. Penal Code § 667(e)(1), plus three consecutive one-year sentences for each of his three prior prison terms. Petitioner challenges his sentence.

I. Factual History

Respondent described the facts of this case as follows:

On September 8, 2002, at 3:00 or 4:00 a.m., Petitioner knocked on the door of Mary Ann Hannenan's mobile home. (1 RT 83.) Petitioner asked Hannenan whether her daughter, Michelle Rodriguez, was there. (1 RT 85.) Petitioner and Rodriguez had a daughter, Raquel, together, and they had lived together for several years. (1 RT 82-83, 98.) Hannenan had not seen or spoken with Petitioner for six years because he was incarcerated during that time. (1 RT 83-84, 209.)

Hannenan believed that Petitioner had been drinking. She did not tell him where Rodriguez was living, and as soon as he left, she called her daughter. (1 RT 85, 87-88.) Rodriguez testified that, when her mother called, she sounded worried. Hannenan told Rodriguez that Petitioner was looking for her and that she should leave. (1 RT 105.) Rodriguez's daughter, who was ten years old, was spending the night at a friend's house, and Rodriguez's boyfriend was with Rodriguez at her West Sacramento apartment that night. (1 RT 104, 149.) Rodriguez and her boyfriend left the apartment and went to a motel room. (1 RT 105-106.)

When Rodriguez returned to her apartment later that day, she found that the door, which she had locked when she left, had been kicked open. There was a footprint on the door. (1 RT 106-107.) Rodriguez assumed it was Petitioner who forced her door open. (1 RT 152.) A mutual friend told Rodriguez that Petitioner was looking for her. Rodriguez was with her sister-in-law, Samantha, that afternoon, and Samantha spoke to her mother, Victoria Aguilar, on the phone. Aguilar told Samantha that Petitioner was at her house. (1 RT 109-110, 122.) Rodriguez called Petitioner that afternoon, and Petitioner said that he wanted to see Raquel, whom he had not seen in six years. (1 RT 111.) Rodriguez was somewhat apprehensive because Petitioner sounded drunk and angry. Petitioner convinced her that he just wanted to see his daughter, so Rodriguez agreed to take Raquel to see him. (1 RT 112, 115.)

Samantha drove Rodriguez to Aguilar's apartment. Rodriguez and Raquel got out, and when Petitioner saw them, he patted Raquel's head and walked toward Rodriguez with his arms out as though he were going to hug her. (1 RT 116-119.) Petitioner mouthed the words to Rodriguez, "I'm going to kick your ass." (1 RT 118.) Petitioner grabbed Rodriguez by the hair and pulled her to the ground. He punched her twice on the head, once on her forehead and once toward the back of her head behind her ear. (1 RT 120-122.)

Aguilar, who had gone outside, jumped on Petitioner, and Rodriguez was able to get free. (1 RT 135-137.) She grabbed Raquel and got into Samantha's car. Raquel was screaming and crying. As Samantha drove them away, Petitioner tried to stop them by hitting the passenger side window where Rodriguez was sitting. (1 RT 138-139.) Rodriguez called her brother on her cell phone and told him to meet her at the West Sacramento Police station. (1 RT 140.)

Officer Kenneth Fellows was at the police station when Rodriguez arrived. (1 RT 219.) She told Officer Fellows that Petitioner hit her on the back of her head by her ear and on the right side of her forehead. (1 RT 220.) When the officer touched the two areas, Rodriguez winced in pain. He observed a bump and redness over her right eye, and he could feel a lump behind her ear which was inside her hairline. (1 RT 221-223, 231.)

Rodriguez told Officer Fellows that, when her mother called to tell her Petitioner was looking for her, she said that Petitioner threatened to hurt Rodriguez. (1 RT 223.) She said that, when she saw Petitioner and he lipped that he would "kick her ass," she instantly knew "that was not a good sign." She had her back turned when Petitioner grabbed her, and after he took her to the ground, she felt him strike her twice on her head with his fist. (1 RT 224.) Rodriguez told the officer where she thought Petitioner might be. (1 RT 142.)

Officer Fellows and Officer Eugene Semeryuk were among the officers who went to arrest Petitioner. (1 RT 226, 238.) When the police arrived, Petitioner was standing in the doorway. He saw the police and closed and locked the door. (1 RT 226.) Petitioner went out the back door and started to climb over the fence. (1 RT 238-239.) Officer Semeryuk, who arrested Petitioner, observed that his eyes were red, he had a strong odor of alcohol, he was staggering, and his speech was slurred. (1 RT 239-240.) The officer concluded that Petitioner was very intoxicated. (1 RT 239.)

Detective Eric Thruelsen, who was in charge of the Domestic Violence Response Team, interviewed Rodriguez several days after the assault. (1 RT 242-243.) She said that the reason Petitioner attacked her was that she had not put money on his books while he was incarcerated. (1 RT 245.) At trial, Rodriguez testified that she did not remember saying that, and she did not know why Petitioner punched her. (1 RT 208-209.) She also admitted that she did not want to be in court testifying against Petitioner, that she did not think Petitioner deserved to go to prison, and that Raquel had been seeing Petitioner every weekend and she is "over it." (1 RT 145-146.)

Rodriguez also testified that she did not go to the motel that morning because she was afraid that Petitioner would harm her or Raquel, she simply was not emotionally ready to see Petitioner after all those years, and she did not want to make her current boyfriend jealous. (1 RT 149-151.) She stated that she will always love Petitioner. (1 RT 150.)

When Hannenan spoke to an investigator with the district attorney's office several months after the assault, she said that, after Petitioner came looking for her daughter early that morning, she immediately contacted Rodriguez because she was afraid that if Petitioner found her he would hurt her. She thought Petitioner had been drinking, but she told the investigator that "he's never nice." (1 RT 247-248.)

Defense

Victoria Aguilar testified that, when her daughter Samantha brought Rodriguez and Raquel over to her apartment to see Petitioner that afternoon, she heard Rodriguez and Petitioner outside yelling at each other so she went outside. (1 RT 250-252.) She put her arms around Petitioner to restrain him, and they went to the ground. She thought Rodriguez went to the ground, too, but Aguilar did not see Petitioner hit her. (1 RT 253-254, 257.) Aguilar testified that Petitioner was at her house that afternoon, drinking. (1 RT 258.)

A friend of Aguilar and Petitioner was also at Aguilar's that afternoon. (1 RT 267-268.) She heard the yelling after Rodriguez arrived with Raquel, and she saw Aguilar restrain Petitioner. (1 RT 269-270.) Aguilar and Petitioner went to the ground, and another woman who was outside jumped on top of them, but she never saw Rodriguez on the ground. (1 RT 270-272, 293.) She did not see anyone get hit. (1 RT 273.)

It was stipulated that Petitioner had "more than enough money" in his account while he was incarcerated, and he did not need money from ...


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