P. v. Benn

Filed 8/18/06 P. v. Benn CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. Mark C. Kim, Judge. Affirmed.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

Appellant Calvin Richard Benn was found guilty by a jury of the second degree murder of his wife, Debra Ashlock. He was sentenced to 15 years to life in state prison. We affirm the conviction.

FACTS

Debra Ashlock (Ashlock) moved to California from Atlanta, Georgia, in February 2003. She met appellant in March or April and they were married in May 2003.

Appellant was still married to Evanna Benn (Evanna)[1] when he married Ashlock.[2] Appellant and Evanna were married in 1979 or 1980 and had two children together. Evanna filed for divorce in 1982, but remained in contact with appellant. Sometime before May 2003, Evanna learned that the divorce had never been finalized; she then resumed her relationship with appellant.

Appellant was also married (see fn. 2) to Darlene Benn (Darlene). They married in 1997, and were still married at the time of trial. They had six children together, the youngest being born in June 2003.

On August 28, 2003, Ashlock called her brother Darius Ashlock (Darius) and asked him to visit her. Darius and his wife flew to Los Angeles the next day. Ashlock told Darius that she had learned that appellant had been lying to her and that he was involved in other relationships. Ashlock said that she had filed divorce papers earlier that day and wanted appellant out of her life.

Around 9:00 p.m. on August 29, 2003, Darius accompanied Ashlock to her apartment; appellant showed up shortly thereafter. There was little interaction between Ashlock and appellant and their relationship appeared to be extremely tense. Ashlock gathered some items and left with Darius. When Darius asked why she had not asked appellant to leave, Ashlock said she intended to do that the following day. Ashlock spent a few minutes with Darius and his wife and then left, telling them that she would see them the next day.

Ashlock spoke to her cousin Tracie Brown several times on the phone on August 29, 2003. The last time they spoke was at 10:45 p.m., when Ashlock told Brown that she was going to a club. She promised to call Brown after she got home, but never did. This phone call was the last contact that any third party had with Ashlock.

Over the next two days, Brown and Darius became increasingly concerned about the fact that Ashlock had disappeared and could not be reached. Brown went to Ashlock's apartment on August 31, 2003, but saw nothing unusual, except a note, not in Ashlock's handwriting, pinned to the mirror in the bedroom that read, â€