Opinion
G052209
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL TAYLOR BITTER, Defendant and Appellant.
Todd A. Haddock for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Allison Hawley and Teresa Torreblanca, Deputies Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13CF3862) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Todd A. Haddock for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Allison Hawley and Teresa Torreblanca, Deputies Attorney General, for Plaintiff and Respondent.
A slipper left behind at the scene of some event does not always lead to a happy ending for its erstwhile occupant. This case is a perfect example. Two quad motorcycles, sometimes called all-terrain vehicles or "ATVs" purchased as Christmas presents for the owner's kids, were stolen in the early morning December darkness from a trailer attached to a motorhome parked on a street in Garden Grove. A bedroom slipper was left behind on the street. Michael Bitter's DNA, as well as that of his girlfriend Meghan Bullard, was found on the slipper. Two cigarette butts were also found at the scene, also with Bitter's and Bullard's DNA on them. And if there was any possible doubt Bitter was involved in the thefts based on the slipper and cigarette butts, it was erased when sheriff's deputies recovered the two ATVs from a neighbor's property that same morning, and Bitter's DNA was found on the handlebars of one of them.
The forensic scientist who conducted the testing testified the odds were one in two billion that the two samples of DNA from separate individuals on the slipper weren't those of Bitter and Bullard.
This time the odds that the samples might have come from someone else were one in one trillion.
Various factors such as heat, humidity, and the presence of water can affect the quality of a DNA sample. The sample taken from the handlebars of the ATV wasn't quite as good as the sample from the cigarette butts. The probability that Bitter's DNA on the handlebars was from another (and unrelated) individual was one in three million.
The avalanche continued at trial, where, in addition to the DNA evidence, there was an eyewitness identification. It turned out the owner of the ATVs had surprised two individuals, a man and a woman, in the trailer in the aftermath of the ATVs removal. The woman bolted. The owner then moved to tackle the man. As the owner got about an arm's length away, the man pulled a gun and announced "I'm going to pop your ass." Fortunately for the owner, the man didn't follow through on his threat. He took off running, too. At trial, the owner said it was Bitter who pulled a gun on him that morning.
When police showed the owner a group of six wallet-sized pictures of individuals a few months after the incident, he wasn't "100 percent sure" of identifying Bitter, so he didn't make a formal identification. He then explained he wanted to see the person he thought had pointed the gun at him "in person." He got his chance about two years later, not having seen Bitter in the interim, at Bitter's trial in February 2014.
The woman was Bullard, who pled guilty to a grand theft related to the December 2011 ATV theft. Sometime thereafter - the precise timing is not clear from the record - Bitter was convicted of both vehicle theft and second-degree burglary. Bitter's use of a firearm in the course of the crimes, a prior strike, and a prior serious felony conviction resulted in his ultimately being sentenced to 19 years in prison.
Four years for one count of second degree robbery, ten for the use of the firearm, and five for the prior serious felony.
Given the formidable evidence against Bitter, his appellate counsel is reduced to making two ineffective assistance of counsel arguments. Not surprisingly, the Attorney General's office focuses on the lack of prejudice from any such putative ineffective assistance. We agree with the Attorney General's office.
We will first note the obvious. For the trial attorneys who undertook to defend Bitter here, this was an unwinnable case. Seldom do appellate courts see such overwhelming evidence - three separate samples of DNA, one on the property stolen, plus an eyewitness identification. These facts alone all but obviate any possibility of any prejudicial ineffective assistance of counsel. (E.g., People v. Orloff (2016) 2 Cal.App.5th 947, 956 [appellant arguing ineffective assistance of counsel could not carry burden of showing prejudice where evidence of guilt was "overwhelming"].)
The late Presiding Justice Gardner's trenchant comments on the topic seem particularly appropriate here: "It is very difficult to secure an acquittal when the district attorney has all the firepower. A true legal genius, a trial lawyer who combines the attributes of Daniel Webster, Clarence Darrow and all those currently popular advocates who write books about themselves, cannot do more in some cases except to insure that his client's legal rights are protected and that he gets a fair trial. The fact that there is a conviction is immaterial. Some defendants simply are guilty, and their guilt can be overwhelmingly established by legally admissible evidence while at the same time giving full recognition to their legal and constitutional rights." (People v. Eckstrom (1974) 43 Cal.App.3d 996, 1001, italics added.)
That said, we will also explain why Bitter's two discrete assertions of ineffective assistance are unavailing. The first involves the "Hail Mary" of having Bullard's girlfriend testify that she committed the crime not with Bitter, but with a gentleman named Adam whom she met on the street earlier the previous evening. The theory behind this argument is that Bullard, at the time of the trial, was facing charges for a crime in San Bernardino based on an unrelated incident (possession of a sawed-off shotgun), so would not testify until the statute of limitations ran on that crime. Had trial counsel obtained a continuance until the statute ran, she might have testified on Bitter's behalf and provided exonerating testimony.
At the preliminary hearing in August 2014, a sheriff's deputy testified to a conversation with Bullard in April 2012, at which she admitted Bitter was her boyfriend. But she also said it was a person named "Adam" whom she met walking through the neighborhood earlier that night who was her accomplice.
We are told in Bitter's opening brief that it would have meant a three-week continuance. Whether that assumption is correct we need not say.
The opening brief splits the continuance theory into two parts: failure to ask was ineffective, and the failure was prejudicial because of the exonerating nature of Bullard's probable testimony.
There was no ineffective assistance in trial counsel's decision not to ask for a postponement of trial so as to have Bullard testify. Bullard's story, at least as related by a sheriff's deputy at the preliminary hearing, was so risibly flimsy that putting her on the stand would merely have led to yet more overkill in the evidence against Bitter. If we follow through with appellate counsel's logic, Bullard would have testified she decided to steal two vehicles parked on a street when she met a complete stranger named Adam while walking through that very neighborhood the night before. If anything, calling Bullard to give such testimony would have been ineffective. Having admitted that she was already Bitter's girlfriend, putting Bullard on the stand would have allowed the prosecutor to tie Bitter even more closely to the crime by inquiring into the minutia of their relationship and events of that evening and early morning, and thereby eliminated any shred of hope the jury might buy the defense that Bullard had transferred Bitter's own DNA to various items at the scene while he was harmlessly occupied somewhere else.
The other ineffective assistance of counsel point involves a brown recluse spider bite and Bitter's own unfortunate affliction with multiple sclerosis. The theory here is that trial counsel should have introduced evidence that Bitter had, at time of the ATV crime, been recently bitten by a brown recluse spider which, combined with his multiple sclerosis, would have rendered him physically unable to unload the ATVs from the trailer. The quick answer to this one is that if Bitter had put his physical abilities at issue, it would have opened the door for the prosecution to delve into at least one of Bitter's more recent crimes that also involved some physical exertion - the beating of Bullard herself within about a month of the Garden Grove arrest. The facts of that altercation are susceptible to a reasonable inference that Bitter retained a significant degree of physical strength going into the December ATV thefts.
According to the probation report, on November 1, 2011, Bitter and Bullard had an argument at a gas station while Bullard was in the passenger seat of a car. Bitter pulled Bullard out of the car, tried to take a jacket she was wearing away from her, and began to hit her on the head. --------
Indeed, having examined Bitter's considerable rap sheet as conveyed in the form of his probation report which is part of the record on appeal, we conclude Bitter was fortunate the trial judge sentenced him to as low a term as he did. It might well have been worse had trial counsel opened the door for the prosecution to harp on Bullard's beating.
The judgment of conviction is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.