Filed 3/3/21 P. v. Ellsworth CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIN CONOLLY ELLSWORTH,

Defendant and Appellant.

 B304909

 (Los Angeles County

 Super. Ct. No. MA077363)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Kathleen Blanchard, Judge. Affirmed.

Laura R. Sheppard, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising 

Deputy Attorney General, and Allison H. Chung, Deputy 

Attorney General, for Plaintiff and Respondent.

____________________
2

A jury convicted Erin Conolly Ellsworth of battering a blind 

man. Ellsworth attacks the prosecutor’s closing argument. We 

affirm. All statutory references are to the Penal Code. 

I

Ellsworth resided at a sober living home with about a 

dozen other people, including Jesse Odum, Lucas Jackson, and 

Corey Hunter. Ellsworth shared a room with Jackson and one 

other person. Odum lived in a different room. 

Ellsworth hit Jackson, Odum’s friend. Odum, who was 

blind, heard about the blow and confronted Ellsworth in 

Ellsworth’s room. A house rule required anyone who had a fight 

to leave the house and wait for the owner of the house. Odum 

sought to enforce this rule and told Ellsworth to pack and wait 

outside. Odum and Ellsworth argued. 

Then Ellsworth punched Odum in the jaw. This blow is the 

one at issue in this appeal.

The punch fractured Odum’s jaw on both sides. The 

necessary surgery inserted permanent metal plates in Odum’s 

jaw. His mouth was wired shut for two months. 

An information charged Ellsworth with dependent adult 

abuse of Odum (§ 368, subd. (b)(1)) (count 1) and battery of Odum 

with serious bodily injury (§ 243, subd. (d)) (count 2). As to each 

count, the information alleged Ellsworth inflicted great bodily 

injury upon Odum. (§ 12022.7, subd. (a).) 

Trial testimony lasted one day. Ellsworth, Odum, and 

Hunter testified. 

Ellsworth admitted punching Odum but claimed selfdefense. We excerpt the trial testimony, beginning with Hunter. 

Hunter heard a loud argument coming from Ellsworth’s 

room and went to the doorway. Hunter saw Odum and Ellsworth
3

facing each other. Odum’s back was to Hunter; Ellsworth was 

facing Hunter. Ellsworth “just went to attack [Odum].” 

Ellsworth punched Odum’s jaw. Odum had been standing 

between the door and the bed and he fell to the floor in that area. 

Odum was “laid out on the floor.” 

Odum gave his version. He went “all the way in” 

Ellsworth’s room. Ellsworth was on his bed off to the right. 

Odum was on the “other side of the room,” which was “a few feet 

away,” “a good five-feet mark,” “[a]bout 5, 10 feet.” He knew the 

room’s spacing because his friend had lived in the room and he 

had spent time in it. 

Odum was angry and upset when he entered Ellsworth’s 

room. He told Ellsworth to wait outside the house because of 

Ellsworth’s blow to Jackson. Ellsworth told Odum to get out of 

his room and to mind his own business. Odum said, “I’m not 

going anywhere,” and said “hit me” repeatedly. He was not in 

Ellsworth’s face before the punch. Odum put his hand up and 

waved toward himself in a “come-at-me motion.” Odum denied 

making any movements toward Ellsworth. Ellsworth came 

across the room and hit him. 

Ellsworth had a different account. Odum came in and got 

“right in my face.” The room was too small for Odum to have 

been five to 10 feet away. Odum was “literally [an] arm’s reach 

in front” of Ellsworth. Ellsworth told Odum to leave at least five 

times. Odum was “getting extremely loud” and said, “why don’t 

you hit me, mother f’er.” Odum was “so close to me. He was 

literally in my face. And all that he had to do is reach his hands 

out and grab me . . . .” “I felt scared. I felt that [Odum] was 

there to hurt me. And I wasn’t—I had nowhere to go. I was 

basically cornered and trapped and had no escape . . . .” 
4

Ellsworth “figured if he got a hold of me, I was in big trouble. He 

outweighed me. He was a lot bigger than me and a lot younger 

than me.” (At the time, Odum was 22 years old. Ellsworth was 

44 years old.) 

Odum was “swirling his arms around, he went to grab at 

me, so I stepped out of the way, and that’s when I threw my 

punch.” Jackson was in the doorway of the room and Ellsworth 

“thought [Jackson] was going to hurt me if I attempted to leave 

the room.” Ellsworth did not attempt to leave the room. 

The jury deliberated for two hours before returning a guilty 

verdict for both counts and true findings for the great bodily 

injury allegations. 

The court sentenced Ellsworth to six years in prison: three 

years for count 1 plus three years for the great bodily injury 

enhancement. It imposed a four-year term for count 2 but stayed 

this term under section 654. 

II

Ellsworth challenges the prosecutor’s closing argument. 

Ellsworth has forfeited this claim, which in any event concerns 

two sentences that could not have affected the verdict. 

We start by describing the prosecutor’s closing argument. 

This requires context.

After the punching incident, Odum said the city told the 

police about what happened and then Odum made a statement to 

police. After that, Odum brought a civil case against the owner of 

the sober living home related to the incident. When he spoke to 

police, Odum did not know he could bring a civil suit.

Ellsworth’s closing argument challenged Odum’s credibility 

in part because of Odum’s civil case. Ellsworth said Odum did 

not immediately report the punch to police because Odum knew 
5

he was responsible for what happened. Now that Odum had a 

civil suit, according to Ellsworth, Odum was “trying to minimize 

his involvement.” 

The prosecutor dismissed Ellsworth’s argument about 

Odum’s motives. The prosecutor argued the case could not have 

affected Odum’s testimony because Odum did not know he could 

bring a civil case until after he spoke to police. The prosecutor 

continued, with the part Ellsworth challenges in italics: “And 

Mr. Odum was consistent with what he told police initially and 

what he testified here. [¶] And the reason you know he is 

consistent is because if he said anything differently, counsel would 

have pointed that out. He would have said, well, you told police 

this, and you would have heard from the officer. Counsel would 

have made a big deal about how this is inconsistent.” Ellsworth 

did not object or request an admonition. 

We survey some prosecutorial misconduct law. 

Prosecutors have wide latitude during argument. (People v. 

Hill (1998) 17 Cal.4th 800, 819 (Hill).) A prosecutor may refer to 

matters that are common knowledge or that are illustrations 

drawn from common experience, history, or literature. (Ibid.) 

This wide latitude is not boundaryless. A prosecutor may

not go beyond the evidence. (People v. Benson (1990) 52 Cal.3d 

754, 794.) Referring to facts not in evidence is misconduct. (Hill, 

supra, 17 Cal.4th at pp. 827–828.) Prosecutors may comment 

upon a defendant’s failure to call a logical witness. (People v. 

Wilson (2005) 36 Cal.4th 309, 338.)

On appeal, Ellsworth challenges the prosecutor’s statement 

on two main grounds. 

First, Ellsworth says the prosecutor’s statement, “Mr. 

Odum was consistent with what he told police initially and what 
6

he testified here,” referred to facts outside the record because the 

content of the police statement was not in the record. The People 

counter the statement was part of a larger and proper argument 

about Ellsworth’s failure to call a logical witness. Because 

Ellsworth forfeited the issue and because any error was 

harmless, we need not address this issue further. 

Second, Ellsworth says the statement was misleading 

based on unadmitted evidence. In context, the prosecutor’s 

statement was not misleading. Again, background is required to 

understand Ellsworth’s argument. Ellsworth had sought to 

admit a hospital record’s statement in which Odum allegedly said 

something that differed from his trial testimony. The court 

excluded the statement as hearsay. On appeal, Ellsworth agrees 

the ruling was proper but says the existence of this statement 

means the prosecutor misled the jury by saying Odum was 

consistent. In the context of the closing argument, however, the 

prosecutor’s statement about consistency was about consistency 

with the police statement. Ellsworth’s argument about the 

statement being misleading due to the unadmitted hearsay fails. 

We turn to the issue of forfeiture. 

Ellsworth forfeited his claim by failing to object and to 

request an admonition. Defendants generally may not complain 

of prosecutorial misconduct on appeal unless the defendant made 

a timely objection on the same ground and asked the court to tell 

the jury to disregard the impropriety. (Hill, supra, 17 Cal.4th at 

p. 820; see also People v. Fayed (2020) 9 Cal.5th 147, 208 

[defendant forfeited claim challenging prosecution’s reference 

during closing argument to facts defendant claimed were not in 

evidence by failing to object and request an admonition]; People v. 

Caro (2019) 7 Cal.5th 463, 511–512 (Caro) [same, forfeiting five 
7

claims of prosecutorial misconduct]; People v. Collins (2010) 49 

Cal.4th 175, 209–210 [same, forfeiting two claims of prosecutorial 

misconduct].) Ellsworth did not object and request an 

admonition and therefore forfeited this claim. 

Forfeiture may be excused, however, if an objection or 

request for admonition would have been futile. (Hill, supra, 17 

Cal.4th at p. 820.) 

An objection and request for admonition would not have 

been futile. Ellsworth could have objected and asked the court to 

instruct the jury not to consider the prosecutor’s statements 

about consistency between Odum’s testimony and his statement 

to police. The court could have reminded the jury they did not 

learn about the contents of Odum’s police statement. 

Ellsworth posits an objection and admonition would have 

been futile because the court would have needed to “reopen the 

evidence, and then to admit a statement that was admittedly 

hearsay.” This argument creates an untenable solution for a 

problem that does not exist. As we explained, the statement in 

context was about consistency between Odum’s trial testimony 

and his statement to police. The court would not have needed to 

say anything about the hospital statement to cure this issue. 

Ellsworth points to People v. Kirkes (1952) 39 Cal.2d 719 

(Kirkes) and People v. Alvarado (2006) 141 Cal.App.4th 1577 

(Alvarado), cases in which courts excused defendants’ failures to 

object. The prosecutors’ statements in Kirkes and Alvarado differ 

from those in this case. 

In Kirkes, the prosecutor boasted of his own excellent 

character and long years of public service, spoke of his oath to 

prosecute cases to the best of his ability, and said he would not 

have prosecuted the case unless the defendant was guilty. In 
8

short, the prosecutor personally vouched for the integrity of his 

case. (Kirkes, supra, 39 Cal.2d at pp. 721–722, 724.) He also said 

he knew the defendant was guilty before he entered the case, 

which was not supported by inferences from the evidence in the 

case. This conduct was “markedly unfair.” (Id. at p. 724.)

In Alvarado, the prosecutor made similar statements. She 

said she had taken an oath not to prosecute a case if she had “any 

doubt that that crime occurred. [¶] The defendant charged is the 

person who did it.” (Alvarado, supra, 141 Cal.App.4th at p. 

1585.) The comments invited the jury to convict the defendant 

based on the prosecutor’s opinion and the prestige of her office. 

Any admonition could not “unring the bell.” (Id. at p. 1586.) 

In this case, there was no unringable bell. The prosecutor 

made no statement alluding to her position, her oath, or her 

personal convictions about the defendant’s guilt. An admonition 

would have sufficed. 

Ellsworth mentions counsel’s failure to object “may yet be 

ineffective assistance” but he sets forth no argument on this 

issue, which we therefore do not address. 

On the merits, the confluence of three factors made the 

prosecutor’s statement harmless. 

First, the statement was brief. Ellsworth’s opening brief 

cited two sentences of argument as being improper. Brief 

statements are generally less likely to warrant reversal. (See, 

e.g., Caro, supra, 7 Cal.5th at p. 511 [noting comments were 

“brief” in support of conclusion any misconduct was harmless].) 

For the first time in his reply brief, Ellsworth says the challenged 

statement spanned two pages and he quotes new portions of the 

prosecutor’s statements beyond the two sentences he challenged 

in his opening brief. We may disregard arguments raised for the 
9

first time in the reply brief. (Worldmark, The Club v. Wyndham 

Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1030, 

fn. 7.) The brevity of the challenged statement supports our 

determination it was harmless. 

Second, the court properly instructed the jury, “Statements 

made by the attorneys during the trial are not evidence.” We 

presume jurors follow the court’s instructions. (People v. Sanchez

(2001) 26 Cal.4th 834, 852.) If the jury followed the court’s 

instructions, it would not have based its decision on the 

challenged statements. 

Third, it is not reasonably likely under any standard that 

the statements would have affected the jury’s decision. Ellsworth 

admitted throwing the punch. His defense was self-defense. As 

the jury instructions stated, self-defense required him to believe, 

and have grounds for believing, Odum was about to inflict bodily 

injury upon him. (CALJIC No. 5.30.) Then, Ellsworth could use 

force he thought was reasonably necessary and which a 

reasonable person would think was necessary to prevent the 

apparent imminent injury. (Ibid.) 

Ellsworth incorrectly says this was a close case and a 

credibility contest. The prosecution emphasized at trial and they 

argue on appeal that Ellsworth’s punch was beyond what a 

reasonable person would think was necessary, meaning selfdefense would not apply. 

Even had a jury believed Ellsworth about Odum getting in 

his face and trying to grab Ellsworth, any reasonable jury would 

have found the punch excessive. We base this in part on the 

severity of the injury. Ellsworth delivered a blow powerful 

enough to fracture Odum’s jaw in more than one place. Other 

aspects of the force show it was excessive. There was the type of 
10

defense: a punch, not a push or a slap. There was the location of 

the blow: to the head, not the torso or the arms, which Ellsworth 

said Odum was swinging near him. And there was the disability 

of the victim. In this case, Odum’s blindness meant Ellsworth 

required less force to avoid imminent harm. Ellsworth’s 

testimony supports this point. Ellsworth said he was able to step 

away from Odum. Ellsworth’s ability to sidestep Odum belies his 

assertion of being trapped. 

Ellsworth’s briefs mention unadmitted evidence about 

Odum’s supposed history of violence. On appeal, Ellsworth does 

not challenge the court’s exclusion of this evidence. Therefore, we 

do not consider it in our analysis. 

Ellsworth’s reply brief incorrectly says the Supreme Court’s 

recent case People v. Rodriguez (2020) 9 Cal.5th 474 is 

“supportive” on the issue of harmlessness. That case dealt solely 

with the issue of whether a prosecutor’s statement constituted 

misconduct. Indeed, the court explained the Attorney General 

had not argued harmlessness and “we express no view on the 

Court of Appeal’s conclusions that the statements were 

prejudicial. We do observe, however, that courts have often found 

that brief statements such as those before us have limited 

prejudicial effect.” (Id. at p. 487.) Rodriguez is neutral at best 

and does not help Ellsworth on the issue of harmlessness. 
11

DISPOSITION

The judgment is affirmed.

WILEY, J.

We concur: 

BIGELOW, P. J. 

GRIMES, J.