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The People v. Jeremy Ellswood

May 8, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JEREMY ELLSWOOD, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F01920)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Ellswood

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury found defendant Jeremy Ellswood guilty of inflicting corporal injury on his cohabitant Sierra Rodriquez. (Pen. Code, § 273.5, subd. (a).)*fn1 Sentenced to three years in state prison, he appeals, contending (1) there is insufficient evidence he cohabitated with Rodriquez as required under section 273.5, subdivision (a), and (2) the trial court abused its discretion and violated his constitutional right to confront witnesses against him in refusing to allow him to cross-examine Rodriguez concerning a charge pending against her in an unrelated federal case. We shall conclude sufficient evidence supports defendant's conviction, and the trial court properly excluded evidence concerning the pending federal charge. Accordingly, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and Rodriguez dated for approximately three months. During that time, Rodriguez spent virtually every night at defendant's condominium. She showered there each night and kept articles of clothing and other personal items there. She purchased a washer and dryer for the condominium. Defendant's next door neighbor saw Rodriguez at defendant's condominium two or three times a week over a two month period. Defendant told his mother Rodriguez was his girlfriend. When applying for work projects in February and March 2010, defendant listed Rodriguez as his emergency contact person and listed her address as the same as his home address. Rodriguez testified that she "live[d]" with her mother, explaining that she kept her bed and most of her belongings at her mother's house.

On March 19, 2010, defendant, Rodriguez, and others were drinking at a friend's apartment. Defendant drove Rodriguez and two others back to his condominium in Rodriguez's car. Defendant and Rodriguez got into an argument, and Rodriguez gathered up her belongings and left. Rodriquez returned to defendant's condominium later that evening to spend the night. She put on one of defendant's t-shirts and climbed into his bed. At some point, she discovered defendant had been texting his ex-girlfriend, and an argument ensued. When defendant saw Rodriguez in his bed, he asked, "why are you even here," and attempted to rip his t-shirt off of her. As she was about to leave, defendant threw her to the ground, got on top of her, and placed his hand over her mouth and nose. She could not breathe and pushed defendant off of her. When her nose began to bleed, defendant pushed her into the bathroom and told her to clean herself up. When defendant went upstairs to get a towel, Rodriguez ran outside and called for help. Defendant's next door neighbors, Octavian and Tracy Han, heard Rodriguez screaming, and when Mr. Han opened the door, he saw her bleeding and crying. When defendant ran after her, Mr. Han wrestled him to the ground while Mrs. Han telephoned 911.

Deputies with the Sacramento Sheriff's Department responded, and defendant was arrested. He remained in custody continuously since that time. When defendant was arrested, the police gave Rodriguez his belongings, including his wallet and keys. Defendant's wallet contained $90 in cash, and his Automated Teller Machine (ATM) and Electronic Benefit Transfer (EBT) cards.

Following defendant's arrest and while he was in custody, most of his furniture was removed from his condominium, his ATM and EBT cards were used to withdraw money and purchase items from the WinCo Food store where Rodriguez worked, and someone with access to his mail cashed his student loan check. Rodriguez denied using defendant's ATM card to deposit his student loan check and withdraw money and did not recall using his EBT card to make purchases at WinCo or to obtain money from his account, although she acknowledged possessing the cards and defendant's keys at the time the check was cashed and the purchases and withdrawals were made.

Defendant testified in his own defense. He denied Rodriguez was his girlfriend or that she ever lived with him. Rather, he had an on and off relationship with his former girlfriend and was seeing Rodriguez on the side. Rodriguez spent the night at his condominium approximately 15 times during the time they were seeing each other. She "had absolutely nothing at [his] house," except some hygiene products like shampoo. The lease and the utilities were in defendant's name, and defendant never gave Rodriguez a key to the condominium.

Defendant denied throwing Rodriguez to the ground or attempting to suffocate her. Rather, she was drunk, refused to leave his condominium, and pushed and punched him in the face. When he attempted to hold her arms, he fell down on top of her; and when he attempted to get up, he ...


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