People v. Pettress

THE PEOPLE, Plaintiff and Respondent, v. DUREE PETTRESS et al., Defendants and Appellants.

E056585

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Filed: July 21, 2014

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

(Super.Ct.No. FBA1100128)

OPINION

APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Affirmed.

Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant Duree Pettress.

Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant Lafayette Pettress.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

In 1995, T.G., age three, one of five children placed in the defendants' home by child welfare authorities, disobeyed his aunt, defendant Duree Pettress, by eating a piece of pizza, and was stomped to death, while defendant Lafayette Pettress did nothing. T.'s nine-year-old sister Evelyn took the blame for the death, after defendants said they would harm her and her siblings if she implicated them. Evelyn recanted her confession six months later, reporting that Duree had stomped the child to death, but no further investigation took place. In 2011, Evelyn's younger sister J., who had witnessed the stomping, came forward to reopen the case. Charges of murder were filed against each defendant. Following a jury trial, Duree was convicted of second degree murder, while Lafayette was convicted of involuntary manslaughter as a lesser included offense. Duree was sentenced to 15 years to life in prison, while Lafayette was sentenced to serve a term of four years, and both defendants appealed.

On appeal, Duree argues for reversal of the conviction because (1) the prosecution's extraordinary delay in bringing the charges violated her right to due process of law; (2) the admission of Lafayette's statements implicating Duree in the death constituted Aranda-Bruton¹ error; (3) admission of evidence of prior child abuse incidents infringed on her fundamental rights; and (4) the cumulative effect of the combined errors resulted in prejudice requiring reversal. Lafayette argues that his conviction should be reversed because the statute of limitations had run on the lesserincluded offense, and he joins Duree's arguments relating to the pre-charging delay and admission of other child abuse incidents. We affirm.

BACKGROUND

Evelyn G. (age 9), and her younger siblings J. (age 6), O. (age 5), T. (age 3), his twin Ja. (age 3), and baby Od., were dependents of the juvenile court. They were removed from their parents' custody and were placed in the home of Duree and Lafayette Pettress² in March 1995, under oversight by Child Protective Services (CPS). Duree is the biological aunt of the children, the sister of their father.

On the evening of December 6, 1005, Duree and Lafayette ordered pizza. T. and O. had gotten into trouble so they had to stand in the corner of the room on one foot, with their hands in the air, and they were not allowed to have pizza. This was a typical punishment for the two boys, who were treated more harshly than the girls.

On December 7, 1995, the next morning, T. got up and ate a piece of pizza. Duree jumped up and grabbed him, and then dragged him into the bathroom. J. followed Duree to the bathroom. Duree told T. to spit up the pizza. Evelyn, who was ironing clothes to wear to school, heard Duree yell about the pizza being eaten and that it should not have been eaten.

T. did not spit up the pizza, so Duree commenced "stomping" him in the stomach, while telling T. to spit it up. After hearing Duree yell, and hearing the sounds of "stomping" in the bathroom, Evelyn went towards the door to the connecting bathroomthat opened up to the girls' bedroom, while J. was near the bathroom door on the other side.³ Evelyn saw Duree stomp T. several times, then put him over the toilet and told him to spit up the pizza, and then repeating the process two additional times, until T. went limp. During the incident, Lafayette was laying down in a room. J. turned back at one point and saw Lafayette looking, with a clear view of what was happening in the bathroom, but instead of doing something to stop Duree, he lay back down as if he were sleeping.

After being stomped by Duree, T. defecated on himself and lay lifeless on the bathroom floor. Duree grabbed a black bag and put T.'s soiled clothing inside, then put the bag into a black plastic bag, which she took out to the trash. Evelyn went into the bathroom where T. lay limp; he felt cold, so she wrapped him in a blanket and rocked him in front of a heater. Duree then told the children to get ready for school and told Lafayette to take them to school.

On the way to school, Lafayette told the children that if any of the children told anyone what he or Duree had done, they (the Pettresses) would come and kill them all. Lafayette told Evelyn that she should not blame his wife, and that if anyone asked anything, Evelyn was to say that she (Evelyn) had done it.

After Lafayette had taken the children to school, Duree called 911 to report that her three-year-old nephew was just lying there, not moving, with his eyes rolled back. Emergency personnel and Officer Espinoza responded to the residence where T. appearedto be already dead. Officer Espinoza observed that T.'s abdomen and stomach were distinctively distended, large, and bloated, and that he had many bruises on his arms, legs, back and sides.

The officer interviewed Duree at the scene and was informed that she, T., Ja., and baby Od. were at home when she called 911, and that her husband (defendant Lafayette) had left already. Duree told the officer she did not know what was wrong with T. While Officer Espinoza was at the home, Lafayette and the three older children arrived. Lafayette informed the officer that Evelyn was always hitting T. Duree also reported that Evelyn often hit T. and that she had been reprimanded frequently for doing so.

T. was transported to Barstow Community Hospital where, at some point, he was declared dead.⁴ An autopsy was performed on December 12, 1995 by Dr. Duazo. The external examination of T.'s body revealed he weighed 25 pounds, placing him below the third percentile, the lowest measured percentile for his age. Dr. Duazo observed bruising on the front of T.'s forehead close to his hairline, along the right side. She also observed linear scars on his forehead, as well as a round scar. There was a pinkish contusion above his left eyebrow and, after his scalp was shaved, bruising was found on the right side of his head. There were several bruises on T.'s extremities, torso and his back, in the lumbar-sacral area. On the top of T.'s foot, there were scars. Although the age of the bruises could not be established, they were inflicted at different times.

Additionally, the external examination revealed brownish fecal material on T.'s buttocks, evidence that he had defecated on himself. The defecation might signify that the person was in agony, or that the person had died, since the sphincter muscles relax at death. The pathologist identified five categories of injuries: (1) blunt force head injury; (2) blunt chest injury; (3) blunt abdominal injury; (4) multiple cutaneous contusions; and (5) healed and healing abrasions and contusions to the upper and lower extremities.

The internal examination revealed a small piece of soft, white material, that appeared to be cheese, in T.'s stomach. T.'s liver was lacerated to the point of near detachment. Even without the head trauma, the laceration of T.'s liver could cause death. The injury to the liver was caused by either a single substantial blow, or a relatively high number of blows. The examination of T.'s head revealed hemorrhage underneath the scalp as well as subdural hematoma. Over time, the head injury could have caused death by itself. There was also evidence of an older brain injury. The cause of death was due to a combination of both the head and abdominal injuries: blunt force injuries to the abdominal area and head.

Detective Griego interviewed Evelyn at the hospital following T.'s death. Prior to the interview with Detective Griego, Duree had told Evelyn that she (Evelyn) should say that she (Evelyn) did it, if asked by anyone, and that if Duree found out Evelyn had said anything about her (Duree), Duree would do to Evelyn what she had done to her brother. Evelyn told the detective that she had stomped her brother because he would not get up for school in the morning. She described kicking T. in the head and hitting him in thehead with her shoe, causing his head to bleed. She also told the detective that T. had "stinked up" his breeches so she put his soiled clothing in a plastic bag to wash.

Detective Griego interviewed Evelyn twice between December 7, 1995 and December 8, 1995. During these interviews, Evelyn stated she was the person who struck and kicked T. During the December 8, 1995 interview, Griego observed Evelyn was wearing flats, the same shoes she had worn the previous day.

Detective Griego also talked to O., observing a healed scar on O.'s chest, forehead, and feet. A year earlier, in November 1994, Detective Griego had been aware of activity in the home of O.'s parents and had photographed O.'s hands and feet at that time. The injuries to O.'s hands and feet were not present in November 1994.⁵

On December 8, 1995, Detective Griego visited the home where defendants lived with the G. children. In the garage, he found a bag containing child's clothing...