United States District Court, C.D. California
Moy Yamil Ellis, Petitioner, Pro se, Chowchilla, CA.
For D K Johnson, Respondent: Jennifer A Jadovitz, Office of the Attorney General, California Department of Justice, San Diego, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HON. KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
SUMMARY OF RECOMMENDATION
Moy Yamil Ellis (" Petitioner"), a California state prisoner proceeding pro se, has filed a First Amended Petition for Writ of Habeas Corpus (" Amended Petition") pursuant to 28 U.S.C. § 2254(d), challenging her convictions for murder, torture, assault on a child causing death, and child abuse, in San Bernardino County Superior Court. On habeas review, Petitioner sets forth two claims of alleged constitutional error: (1) admission of a co-defendant's out-of-court testimonial statements, in violation of Petitioner's Sixth Amendment Confrontation Clause rights; and (2) instructional error. As explained below, both claims fail on their merits. Accordingly, the Court recommends the Amended Petition be denied.
On January 6, 2010, following a joint jury trial of Petitioner and Petitioner's boyfriend Thomas Darthart (" Darthart") in California Superior Court for the County of San Bernardino, Petitioner was convicted of the following crimes: (1) first-degree murder involving the infliction of torture, in violation of California Penal Code sections 187(a) and 190.2(a)(18); (2) torture, in violation of California Penal Code section 206; (3) assault on a child causing death, in violation of California Penal Code section 273ab; and (4) child abuse, in violation of California Penal Code section 273a(a). Lodgment (" Lodg.") No. 7 (Clerk's Transcript on Appeal (" CT")) at 483-88. All of these convictions arose from the death of Darthart's son Thomas Timothy Fredric Darthart (" Thomas") on September 5, 2006. Id. at 161. The trial court sentenced Petitioner to life in prison without the possibility of parole. Id. at 573-74.
On February 28, 2012, on direct appeal, the California Court of Appeal affirmed Petitioner's convictions in a reasoned decision. Lodg. No. 4. On April 30, 2012, Petitioner filed a petition for review of the appeal with the California Supreme Court. Lodg. No. 5. On May 9, 2012, the California Supreme Court summarily denied review of the appeal. Lodg. No. 6.
On July 29, 2013, Petitioner filed a federal habeas corpus petition (" Petition") with this Court. (ECF Docket No. (" dkt.") 1). In the Petition, Petitioner set forth five grounds for federal habeas corpus relief. Pet. at 2-3. On September 3, 2013, Respondent filed a Motion to Dismiss, contending three of these claims were unexhausted and only two claims had been presented before the state courts. (Dkt. 7). On February 24, 2014, the Court issued an Order advising Petitioner that the Petition was subject to dismissal unless she timely filed an amended petition alleging only exhausted claims. (Dkt. 9).
On March 24, 2014, Petitioner filed the instant Amended Petition. (Dkt. 12). In the Amended Petition, Petitioner sets forth the two exhausted claims in the original Petition: (1) admission of co-defendant Darthart's out-of-court testimonial statements, in violation of her Sixth Amendment Confrontation Clause rights; and (2) submission of erroneous jury instructions regarding felony first degree murder based on torture. Am. Pet. at 5. On May 23, 2014, Respondent filed a Return to the Petition. (Dkt. 15). Petitioner has not filed a reply to the Return. The matter thus stands submitted and ready for decision.
In its reasoned decision affirming Petitioner's convictions, the California Court of Appeal summarized the factual background of the case and the evidence presented at Petitioner's trial. See Lodg. No. 4. Petitioner has not challenged the Court of Appeal's summary, and thus, it is " presumed correct, " absent rebuttal by the Petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Cooper v. Brown, 510 F.3d 870, 919 (9th Cir. 2007) (" Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.") (internal citations and quotation marks omitted). The Court of Appeal's summary is excerpted below:
At approximately 3:00 p.m. on September 5, 2006, which was Little Thomas's [( i.e . Thomas Timothy Fredric Darthart)] third birthday, Darthart telephoned 911 and said Little Thomas had fallen in a bathtub the previous night, Darthart had revived him through cardiopulmonary resuscitation (CPR) and afterwards Darthart went to sleep. The following afternoon, when Darthart awoke, Little Thomas was unconscious and his stomach was swollen but he was not moving, although he was breathing.
Paramedics arrived at Darthart's residence a few minutes later, and Darthart told them Little Thomas was still breathing. However, they noticed Little Thomas was injured, lacked a pulse and showed signs of lividity. They used an electrocardiogram machine but he had no heart rhythm; therefore, the paramedics pronounced him dead. One paramedic described Darthart's and Ellis's demeanors as " fairly nonchalant, " and noted they did not cry or show any emotion.
Barstow City Police Sergeant Mark Franey processed the crime scene in the apartment and saw old food and many cockroaches in the refrigerator. No food was in the kitchen cabinets. Sergeant Franey found a paddle with Little Thomas's name and a sad face drawn on one side of it, and Ellis's daughter's name and a sad face drawn on the reverse side. Sergeant Franey also found a folded belt that might have been used to spank someone. Sergeant Franey overheard Darthart and Ellis expressing their love for each other, but they did not mention Little Thomas or express remorse about his death. Ellis stated, " I didn't do anything." Apart from one teddy bear, Sergeant Franey did not see any evidence of possible birthday celebrations for Little Thomas.
Approximately one month before Little Thomas's death, Ellis had told her neighbor, Jenette Gay, that Little Thomas had said he hated Ellis and did not have to do what she said. Ellis concluded he had " the devil in him." Gay encouraged Ellis to overlook Little Thomas's comment because he was just a baby.
Three days before Little Thomas's death, Ellis went to Gay's house and cried continuously for approximately ten minutes without answering Gay's questions about why she was crying. Ellis returned to her home afterwards. Gay knocked on Ellis's door that afternoon but no one answered despite Gay's belief the family was inside.
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Darthart's Pre--Miranda Police Interview
Barstow City Police Officer Andrew Frank Espinoza was assigned to investigate Little Thomas's death and met Darthart and Ellis at their residence on September 5, between 3:00 p.m. and 4:00 p.m. He invited them to accompany him in an unmarked police vehicle to the detective division annex for an interview. They both agreed, and were not handcuffed or arrested en route to the interview. At the annex, Officer Espinoza asked Darthart if he understood he was free to leave, and Darthart confirmed he understood.
A video recording and transcript of Darthart's interview was introduced at trial. Officer Espinoza started it by offering Darthart something to drink and commiserating with him. After Officer Espinoza obtained Darthart's background and contact information, he told him, " [Y]ou understand that you're not under arrest or anything. We would just like to talk to you about what happened with your son. I'm sorry about the death of your son. Um, okay, it's unfortunate uh, have what happen, you know, and, but we were called in there and uh, I wanted to talk to with [sic ] you about that like we usually we talk with the people in the home." Darthart responded, " Okay, " and immediately volunteered, " Yeah, there's some bruises on [Little Thomas's] back, cause we was at the park last Saturday. And he was running around he fell down the bleachers. He [scarred] up the back of his legs."
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Before the interview concluded, Darthart requested a cigarette and got up to get one. A detective directed him to an outdoor spot behind the annex and ...