People v. Ellis CA4/1

Filed 9/29/21 P. v. Ellis CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078708

Plaintiff and Respondent,

v. (Super. Ct. No. FBA009502)

MOY ELLIS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Steven A. Mapes, Judge. Affirmed. Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2010, a jury convicted Moy Ellis and her codefendant of murder

(Pen. Code,1 § 187, subd. (a)) and found true the special circumstance that the murder was intentional and involved torture (§ 190.2, subd. (a)(18)); assault on a child causing death (§ 273ab); torture with great bodily injury

1 All further statutory references are to the Penal Code.

(§§ 206 and 12022.7); and child abuse with a finding Ellis and the codefendant willfully caused and permitted a child to suffer, and inflicted injury that resulted in death (§§ 273a, subd. (a) and 12022.95). Ellis was sentenced to life without parole. Ellis appealed and this court affirmed the convictions and sentence in an unpublished opinion. (People v. Darthart et al. (Feb. 28, 2012, D057950)

[nonpub. opn.].)2 In 2019, Ellis filed a pro. per. petition for resentencing under section 1170.95. The court appointed counsel, received briefing, considered the record of conviction, issued an order to show cause, and held an evidentiary hearing. At the conclusion of the hearing, the court denied the petition. The court found Ellis was an actual killer and a major participant in the criminal acts leading to the death of a child. Ellis filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Ellis the opportunity to file her own brief on appeal, but she has not responded. STATEMENT OF FACTS Appellant’s opening brief contains an accurate statement of facts derived from our prior opinion. We will incorporate it here for convenience. “At about 3:00 p.m. on September 5, 2006, Darthart called 911 to report his son, Thomas, who had turned three years old that day, was unconscious but breathing. Darthart reported that the night before, Thomas had fallen in the bathtub the night before, and was found unconscious, but Darthart had