Opinion
B226200
09-26-2011
THE PEOPLE, Plaintiff and Respondent, v. GILTON BELTRAND PITRE, Defendant and Appellant.
Brett Harding Duxbury, under appointment of the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA325874)
APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed as modified, and remanded with directions.
Brett Harding Duxbury, under appointment of the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Gilton Beltrand Pitre appeals from a judgment of conviction for first degree murder of, and for unlawful sexual intercourse with Alyssa Gomez, a minor. He contends the trial court erred in reopening closing arguments after the jurors indicated there was a lone holdout juror. He also contends he was awarded an incorrect amount of presentence custody credits. We affirm the convictions, and modify the judgment to correct the custody credits.
STATEMENT OF THE CASE
A jury convicted Pitre of first degree murder (Pen. Code, § 187, subd. (a))and unlawful sexual intercourse with a minor (§ 261.5, subd. (d)). The trial court found that Pitre had two prior "strike" convictions within the meaning of section 667, subdivisions (b) through (i), and that Pitre had served two prior prison terms within the meaning of section 667.5, subdivision (b). Pitre was sentenced to state prison for 110 years to life. He timely filed an appeal from the judgment of conviction.
All further statutory citations are to the Penal Code, unless otherwise stated.
STATEMENT OF THE FACTS
Alyssa Gomez was 15 years old when she was found dead June 4, 2007. Her body, which was dumped in an alley near a restaurant, had been wrapped in a "tapestry green" queen-sized bedspread. An investigation revealed that the only motel in Los Angeles that used this type of bedspread was the Olive Motel, located about a mile from the restaurant
A review of the motel's registration cards for June 3 indicated that a person named Gilton Pitre had rented a room at the motel that night. Surveillance camera tapes for that night showed Pitre walking with a female into one of the motel rooms around 11:15 p.m. About five hours later, the cameras caught Pitre leaving his room, moving his car closer to the room, carrying a large covered object from his room and placing it into the trunk of his car, driving away, and coming back about 30 minutes later to check out of the motel.
A toxicology report showed the presence of methamphetamine in Gomez's blood. A sexual assault examination showed the presence of sperm in the genital areas that matched Pitre's DNA profile. An autopsy performed on Gomez's body indicated she had been strangled to death. According to the medical examiner, in order to kill a person by strangulation, the strangler must continue to apply pressure after the person loses consciousness. It usually takes 10 to 20 seconds for the person who is being strangled to become unconscious. Thus, it could take longer than a minute to kill a person by strangulation.
Joel Avelar, a friend of Gomez and a fellow drug user, was granted immunity in exchange for his testimony. At trial, he identified Pitre as the person who, on the evening of June 3, had asked Gomez repeatedly when she was going to "hang out" with him. According to Avelar, "hanging out" meant getting high and having sex. Gomez indicated they would do so later that night. Gomez and Avelar then walked to another friend's house, where they smoked some methamphetamine before she left at around 11:00 p.m. by herself. That was the last time Avelar saw Gomez alive. Avelar admitted he initially did not identify Pitre when he was shown a six-pack photographic lineup containing Pitre's picture.
DISCUSSION
On appeal, Pitre contends: (1) that the trial court coerced the jury's verdict by reopening closing argument; and (2) that the court awarded an improper amount of presentence custody credits. We address each contention in turn.
I. Jury Verdict
A. Relevant Proceedings
After two days of deliberations, the jury informed the trial court that it had reached a verdict on the charge of unlawful intercourse with a minor, but was deadlocked 11 to 1 on the murder charge. The court then told the jurors:
"Now, I have to say that even though it may seem to you folks that you have deliberated a long time, in terms of the number of days of trial, the number of exhibits and so forth that were received and, you know, the issues involved, this has not been an overly long deliberation. . . . And obviously, the goal of any trial is to hopefully have all of the issues resolved. Sometimes that doesn't happen. I'm aware of that. But that is the goal. And there are sometimes a point [sic] where juries, you know, say that they're deadlocked, and at times, there are additional things that the court can do to assist the jury and perhaps overcom[e] a deadlock.
"And among the things that sometimes the court does is clarification of instructions. . . . Sometimes, if there's a particular issue that is one that the jury is struggling with, I have on occasion allowed the attorneys some limited amount of time to reargue a specific point to the jury.
"And of course, the other thing is that testimony can be reread or [a] portion[] of testimony can be reread of witnesses that have testified during the trial, if that might be helpful on an issue or whatever.
"[¶] . . . [¶]
"But quite frankly, ladies and gentlemen, I think it's way too early to throw in the towel, and I do think that you should continue your deliberations."
The following week, as the jurors resumed deliberation, a juror submitted a note to the court explaining in detail why the juror believed the act of strangulation was not premeditated and deliberate. The juror asked the court to read the note "to help provide more insight into my thought process, perhaps to determine if I am totally off base here." The jury foreperson then submitted a note to the court indicating the jury was deadlocked. The note stated the holdout juror was "focused entirely on . . . personal feelings, beliefs and assumption that we cannot find evidence to support," and that the juror "refuses to engage in a logical discussion of the facts."
The court discussed the jurors' notes with the attorneys outside the presence of the jury. The prosecutor asked that he be allowed to give a five-minute argument to address "premedi[t]ation, deliberation and second degree murder." Defense counsel stated, "I don't think that that's necessary. They aren't asking for that. That option had been given to them last week. And they are not asking for it. And I just don't see that that's going to resolve this particular issue." The court stated it did not know whether additional argument would resolve the issue and expressed surprise that the prosecutor was not proceeding with the lesser included charge of second degree murder. The prosecutor responded that he wanted to argue that the evidence showed first degree murder "for the reasons previously stated," but that if the jury had trouble accepting that, it could return a second degree murder verdict. The court ruled it would allow both parties to present five minutes of additional argument on the issue of premeditation. The court then asked both sides if they were ready for additional argument, and defense counsel said, "Yes."
The court then addressed the jury, stating:
"Now, I've discussed . . . with the attorneys, and it seemed to us that the area of disagreement I guess you might say, that the jury is experiencing, is with the idea of premeditation and deliberation. And so, what I have elected to do is to allow the attorneys, each side, five minutes of argument, basically, to address specifically the area of premeditation and deliberation."
The prosecutor then delivered a brief argument. He stated:
"I've had an opportunity to see the questions that have been posed and so it seems to me like you are struggling with whether or not it is first or second degree murder based on the evidence. Okay?
"Now, the People believe that there is sufficient evidence to demonstrate a first degree murder here for the reasons that I previously stated. Namely, the decisions that Gilton Pitre had to have made in order to put his hands or his arm around Alyssa Gomez'[s] neck, okay? The amount of time it took for her to die, meaning he had continued to do that, applying pressure to that, and the way he acted afterwards, which supports the inference that he was thinking during it because he was thinking so much after it.
"But look, reasonable minds can differ about that, okay? And if you as a jury are having trouble accepting those arguments, well, that's okay. All right?"
The prosecutor then argued that the evidence showed at least second degree murder and that a verdict of second degree murder would be a "just result in this case as well, based on the evidence." Defense counsel waived his argument. Twelve minutes after the jury resumed deliberations, it returned its verdict.
B. Analysis
Pitre contends the trial court's decision to permit additional oral argument coerced the holdout juror into convicting him of first degree murder. We disagree.
We reject respondent's argument that Pitre forfeited his claim of error. His counsel's statements objecting to the court's proposal to permit additional argument were sufficient to preserve the issue for review.
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A trial court's decision to reopen a case to permit additional closing argument is reviewed for abuse of discretion. (People v. Young (2007) 156 Cal.App.4th 1165. 1172.) We find no abuse here. As Pitre acknowledges, the trial court "made no statements that could be interpreted as exerting pressure on any juror." (People v. Sandoval (1992) 4 Cal.4th 155, 196.) Nor did anything in the court's comments "tend[] to dissuade any juror from maintaining his or her position." (People v. Butler (2009) 46 Cal.4th 847, 885.)
Similarly, the act of permitting the jury to hear additional argument did not logically tend to pressure any juror to surrender his or her independent judgment. Rather, it permitted the jury to hear from both the prosecution and defense on a critical issue in the case. We conclude the trial court's actions would reasonably have been perceived as "'"'a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.'"'" (People v. Bell (2007) 40 Cal.4th 582, 616.)
Finally, we note that the argument actually delivered by the prosecutor could not be viewed as coercive. While arguing that the evidence supported a conviction for first degree murder, the prosecutor stated that a conviction for second degree murder would also be justified. In short, we find nothing in the proceedings below to suggest the verdict ultimately returned was coerced by the court's exercise of its discretion to permit the jury to hear additional brief argument.
II. Presentence Custody Credits
Pitre also contends he was awarded an improper amount of presentence custody credits. The People agree, and contend this court should correct the abstract of judgment to reflect that Pitre was entitled to 1,093 days of presentence custody credits. In his reply brief, Pitre concedes this is the correct amount.
Accordingly, we will modify the judgment to include an extra day of presentence custody credits.
DISPOSITION
The superior court is directed to amend the abstract of judgment to award appellant 1,093 days of presentence custody credits. As modified, the judgment is affirmed. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J. We concur: WILLHITE, Acting P. J. SUZUKAWA, J.