People v. Wilkerson CA2/6

Filed 11/24/14 P. v. Wilkerson CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B250644 (Super. Ct. No. 2012002419) Plaintiff and Respondent, (Ventura County)

v.

JAMES NATHANIEL WILKERSON,

Defendant and Appellant.

James Nathaniel Wilkerson appeals a judgment following conviction of murder, with findings that he personally inflicted great bodily injury upon his victim, committed the murder during commission of a robbery, and served a prior prison term. (Pen. Code, §§ 187, subd. (a), 189, 12022.7, 190.2, subd. (a)(17)(A) [special circumstance], 667.5, subd. (b).)1 We modify the judgment to reflect an award of 638 days of presentence custody credit, but otherwise affirm. FACTUAL AND PROCEDURAL HISTORY On November 7, 2011, a helicopter pilot flying over Point Mugu saw a body floating in the ocean and notified law enforcement. Ventura County sheriff's deputies responded by helicopter with a rescue diver. Deputy Shane Matthews dived into the ocean and placed a female body, later identified as Sarah Overholser, in a rescue

1 All further statutory references are to the Penal Code unless stated otherwise.

basket. Following retrieval of Overholser's body, the deputies covered her hands with plastic bags to preserve any DNA evidence deposited under her fingernails. Ventura County Medical Examiner Ronald O'Halloran performed an autopsy on Overholser's body and concluded that she died from strangulation. Her body contained extensive external injuries suggesting that it had been dragged over rocks or other hard surfaces. The parties stipulated at trial that laboratory testing revealed no evidence of alcohol or drugs in Overholser's body. Overholser and John Cox were engaged to be married. They lived together in Cox's white van parked near the Oxnard Rescue Mission. The van contained the couple's belongings and was in "perfect condition." In 2011, Cox was on probation and did not possess a valid driver's license. For that reason, Overholser drove his van. Cox did not permit another person to drive the van unless he or Overholser were passengers. In October 2011, Cox violated a term of his probation and, as a result, was incarcerated. During that time, Overholser lived alone in the van. Earlier that year, Cox met Wilkerson and his girlfriend, Kristina Canell. Cox and Wilkerson became "best friends"; Cox "trusted [Wilkerson] with anything." Wilkerson and Canell lived in a van parked near Cox's van and the Rescue Mission. Wilkerson's van was spray-painted black, contained skull and demon decorations, and, according to Cox, was "a piece of junk." In late October 2011, Wilkerson and Canell made plans for a road trip to Tennessee to visit Wilkerson's family. They planned to drive Wilkerson's van but it developed mechanical problems and became inoperable. Wilkerson admitted to Canell that he "wanted [Cox's] van" and "wasn't past doing anything to get [it]." Wilkerson also did not like Overholser and referred to her as "a bitch." In the evening of November 6, 2011, Wilkerson and Canell walked to Cox's van parked nearby. Earlier, Overholser had lost or misplaced her money, and Wilkerson planned to offer to recover it "as a lure to kill her." Overholser invited Wilkerson and Canell inside after Wilkerson stated that recovery of the money would involve "a drive."