People v. Pettigrew

62 Cal.App.5th 477

276 Cal.Rptr.3d 694

The PEOPLE, Plaintiff and Respondent,

v.Scott Edmund PETTIGREW, Defendant and Appellant.

E074122

Court of Appeal, Fourth District, Division 2, California.

Filed March 25, 2021

Certified for Partial Publication.^*

Victoria H. Stafford, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McKINSTER, Acting P. J. Defendant Scott Edmund Pettigrew challenges his conviction for the first degree murder of Mimie Cowen, contending substantial evidence does not support the jury's finding that the murder was premeditated, and the trial court erred prejudicially by instructing the jury with a standard "flight" instruction that it could consider defendant's postarrest suicide attempts as evidence of a consciousness of guilt. In addition, defendant argues there is no evidence to support the trial court's implied finding that he had the ability to pay a $514.58 "booking fee," and the court erred when calculating presentence credits to be applied to his state prison sentence of 25 years to life.

In the published portion of this opinion, we conclude defendant's conviction for first degree murder is supported by substantial evidence of premeditation. In addition, because there is no evidence defendant fled to avoid arrest or tried to escape from custody, we agree with defendant that the trial court erred by instructing the jury on flight. However, we conclude the error was harmless.

In the unpublished portion of this opinion, we conclude the trial court's order imposing a "booking fee" without finding defendant had the ability to pay, if error, was harmless. And we accept the People's concession that defendant is entitled to an additional 21 days of presentence credit.

Because we find no reversible error, we affirm the judgment as modified to accurately reflect defendant's presentence custody credits.

I.

PROCEDRAL BACKGROUND

A jury found defendant guilty on all three counts alleged in the information, to wit, first degree murder ( Pen. Code, § 187, subd. (a), count 1); elder abuse with force likely to cause great bodily harm or death ( Pen. Code, § 368, subd. (b)(1), count 2); and misdemeanor violation of a protective order ( Pen. Code, § 166, subd. (c)(1), count 3). In addition, the jury found true the sentencing allegation for count 2 that defendant caused the death of a person under the age of 70 years. ( Pen. Code, § 368, subd. (b)(3)(A).)

The trial court sentenced defendant to state prison for 25 years to life for count 1; the middle term of three years for count 2, plus five years for the elder abuse enhancement, to run consecutively with the sentence on count 2, both stayed pursuant to Penal Code section 654 ; and one year in county jail for count 3, to run concurrently with the sentence on count 1. Among other fines and fees, the court ordered defendant to pay a $514.58 "booking fee." And, relevant here, the court determined defendant was entitled to 1,228 days of presentence custody credit toward his prison sentence for "actual time."

II.

FACTS

A. Prosecution's Case.

1. Relevant events before the murder.

Cowen was 66 years old at the time of her murder and had lived in Cathedral City since 2002. Defendant was 50 years old at the time of the murder and had moved into Cowen's home sometime around March 2016.

On May 31, 2016, R.D., one of Cowen's next-door neighbors, was in his backyard when he heard a "ruckus"—yelling and screaming—coming from Cowen's house. He heard a man shout in an angry voice, "You will rue the day that you were born if anything happens to those dogs," and, "Senile old bitch." R.D. heard Cowen respond, but he could not make out what she said. The shouting lasted for about 10 minutes.

The same day, a woman who lived on the street behind Cowen's house, found a stray dog and asked M.P., her next-door neighbor, if she could locate its owner. Later that afternoon, M.P.'s daughter said there was a man outside screaming and saying bad words. When M.P. went outside to investigate, she saw defendant and heard him screaming, "Mona, Mona, where are you? Fucking bitch. Where are you? I can't believe she did that. Where are you, Mona? Where are you, baby?" M.P. waved to defendant and said, "Excuse me, sir." He replied, "Oh, my God. You have her." Defendant walked over and thanked M.P. She said to him, "I feel like I don't want to give it [(the dog)] to you, because you were so angry at her. You say you are going to ... kill her. You are so mad." Defendant replied, "Oh, no. I would never do that to my baby. I can't believe that bitch let her out." He took the dog and walked away.

2. Day of the murder.

On June 14, 2016, a deputy with the Riverside County Sheriff's Department drove to Cowen's home to personally serve defendant with an elder abuse temporary restraining order. He arrived after 1:00 p.m., and Cowen directed the deputy to defendant's bedroom. The deputy knocked on the door and asked for defendant. Defendant opened the door, and the officer handed him the restraining order and explained that defendant was required to remove his dogs from the home by the end of the day. Defendant said, "Okay," turned around, and walked back into his bedroom. The deputy did not speak to defendant about the additional requirement under the restraining order that he stay five yards away from Cowen. The interaction lasted no more than two or three minutes.

That evening, Cowen called the Cathedral City Police Department for assistance in getting inside her home. She was out front and appeared to be in good health when an officer arrived at 7:35 p.m. Cowen told the officer that her front door would not open, and she could not enter through the garage because the garage door was not working either. She gave the officer the key to a padlock on a side gate, and the officer entered the garage through a side door to the home and discovered the garage door opener had been unplugged. He plugged the door opener in and opened the door.

Cowen told the officer that the sheriff's department had served a restraining order on defendant earlier that day, and it was to go into effect at midnight. She asked the officer to speak to defendant, but when the officer approached defendant's bedroom to speak with him, he heard water running in an adjacent bathroom. The officer knocked on the door of the bathroom, announced his presence, and asked for defendant by name but did not receive a response. The officer opened the bathroom door and saw the bathtub water running but found no one inside. The officer heard what sounded like a television playing and dogs barking in defendant's bedroom. He knocked on the door several times but received no answer. The officer then walked outside so he could look into the bedroom through the French doors that lead from the room to the backyard, but the windows were covered. As he walked through the inside of the home, the officer noticed it was neat and tidy, but he could smell dog urine. He suggested Cowen use a management company or find a different way of renting out space in her home and left.

Sometime later, Cowen spoke on the phone to her son. Her son heard a man "yelling" and "ranting" in the background. He recognized defendant's voice from prior conversations he had with defendant. When he asked who was there with Cowen, she said, "Scott's there. He is doing it again." Concerned about what was going on, Cowen's son told her to turn on an audio recorder because he "wanted her to have a record." He also told her he and his wife were on their way to her house. Cowen's son heard glass being broken and things being smashed during the last 25 to 30 seconds of his conversation with his mother.

Audio recorded by Cowen, which was played for the jury, captured the following exchange between Cowen and defendant:

"COWEN: ... Stay away from me. Stay the fuck away from me. You bastard. You bastard. Now you're gonna start beating up an old lady, huh?

"PETTIGREW: You're an old cunt, aren't ya? Are you recording me? You don't know? Huh? Cunt.

"COWEN: I just don't understand why...

"PETTIGREW: You know why?

"COWEN: I don't understand.

"PETTIGREW: Oh ...

"COWEN: Get the fuck out of here.

"PETTIGREW: Oh, (unintelligible).

"COWEN: Get out of here.

"PETTIGREW: Cunt...

"COWEN: Get out of here. Get off me. Go ..."

About 9:30 p.m., R.D. (the same next-door neighbor who had heard shouting from Cowen's backyard two weeks earlier) and his wife heard two grunts or groans from a male voice coming from Cowen's backyard. At the same time, the couple who lived next-door to Cowen on the opposite side also heard a "distressful," "groaning or moaning-type noise" coming from Cowen's backyard. And sometime between 9:00 and 10:00 p.m., another neighbor whose property abutted the back of Cowen's property was in his backyard when he heard a commotion and shouting coming from Cowen's backyard. He heard a man "yelling a lot" and a woman "responding but not yelling," and he heard a splashing sound from Cowen's pool that lasted no more than 30 seconds.

While driving to Cowen's home, her son called her many times, but she did not answer. He also called the police to report he had heard an argument and altercation between his mother and defendant, and he asked that an officer be sent to check on her. The same officer who had earlier assisted Cowen to get inside her home was dispatched to perform a welfare check. When he arrived at 11:42 p.m., the officer rang the doorbell and knocked on the front door. He then walked around the outside of the house and looked inside the windows to see if anything was out place. In the living room, the officer observed dogs walking around loose and broken vases or flowerpots on the floor, which were not there earlier.

The officer...