THE PEOPLE, Plaintiff and Respondent, v. SCOTT EDMUND PETTIGREW, Defendant and Appellant.
E074122 (Super.Ct.No. INF1600783)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 3/25/21
CERTIFIED FOR PARTIAL PUBLICATION*
APPEAL from the Superior Court of Riverside County. Johnnetta E. Anderson, Judge. Affirmed with directions.
Victoria H. Stafford, 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.
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In the unpublished portion of this opinion, we conclude the trial court‘s order imposing a “booking fee” without finding defendant had the ability to
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 (
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
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
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
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 called for additional officers to respond, then tried to get into the backyard through the side gate but found it had been locked. When another unit arrived, he and two other officers jumped the side fence and walked into the backyard. The French door that opened from the kitchen to the backyard patio was ajar. The officers observed broken glass and other items on the floor that had not been there earlier in the evening.
The French doors that lead into defendant‘s bedroom were now partially uncovered, and an officer saw a man lying on the bed in a fetal position. The other officers discovered Cowen floating facedown in the pool, pulled her out, and attempted to resuscitate her. She had no pulse and her pupils did not react to light. Officers then cleared the house and entered defendant‘s bedroom. They called for defendant to show his hands, stand up, and walk out to the hallway so he could be detained safely. The bedroom was messy and cluttered, and the television was on with the volume high. The officers handcuffed defendant, who was nude.
The fire department arrived and pronounced Cowen dead.
Cowen‘s house smelled of dog urine, and there was dog feces throughout the home. The kitchen was messy with dirty dishes, and the refrigerator was mostly empty. A black rug had been laid over the threshold to the French doors, and there appeared to be skid marks from blood or some other fluid across the concrete from the kitchen to the steps of the pool. Broken glass, a broken picture frame, a broken cellular phone, a recording device, and two long strands or clumps of light-colored hair were recovered from the floor of the kitchen area. One clump of hair was found just inside the French door, and a larger clump was recovered at the end of the kitchen countertop. Cowen had bald spots on her head, and the clumps were consistent with her hair. An ornamental cat with its paw broken off was found on the kitchen counter. The paw was found lodged into one of the upper kitchen cabinet doors. Cowen had circular or oblong marks on her back and shoulder area, which were consistent with being struck with a salt or pepper mill that was found in the kitchen. In addition, some items were recovered from the bottom of the pool, including a pair of tweezers, a drinking glass, a disposable lighter, a purple lipstick case, and packaged chicken.
Defendant‘s bedroom was messy and dirty, with trash and dirty dishes strewn around, and wet or damp clothing on the floor. Some bloody tissues were also found on the floor. The bed had no linen or bedding on it. There was an open bottle of vodka in the room and oil and food containers on the dresser. It appeared as though defendant had been hoarding food there. Several boxes of over-the-counter sleeping medication were also found in his room. In defendant‘s bathroom, a detective noticed what appeared to be dried vomit or blood next to the toilet.
Cowen‘s bedroom was locked from the inside, and officers had to force the door open. In her bedroom and bathroom, officers found clothing, towels, linen, paperwork, and food that would normally be kept in the kitchen. It appeared Cowen had been keeping everything she needed in her bedroom.
An evidence technician scraped under defendant‘s fingernails for biological evidence and photographed and documented his injuries. He had a long scratch in the middle of his back, what appeared to be bruising around his left cheek bone and bruises on both arms, a scratch near his right ear, and a scratch down his throat that was approximately three and a half inches long. A sample of Cowen‘s blood was drawn during her autopsy, and a buccal swab was taken from defendant at the police station for reference DNA testing. A blood sample was also taken from defendant.
Cowen‘s DNA was found in the fingernail scrapings from defendant‘s righthand fingers. What visually appeared to be dried blood under Cowen‘s
4. Cowen‘s postmortem examination.
At the time of her postmortem examination, Cowen was five feet four inches tall and weighed 117 pounds. The pathologist observed several contusions or bruises, and scrapes or scratches on her face, head, chest, shoulders, back, arms, hands, and fingers caused by blunt force trauma. Cowen had large patches on her head where the hair was missing or sparse. An internal examination revealed hemorrhaging or bleeding on the underside of her scalp and to the surface of the brain caused by blunt force trauma. Cowen also had hemorrhaging on the inside of her eyelids and to the internal neck tissues that were consistent with asphyxia from strangulation. An examination of the heart revealed Cowen had approximately 90 percent blockage in her right coronary artery. She also had two broken ribs.
The pathologist opined Cowen‘s cause of death was blunt force trauma with submersion in water and cardiovascular disease as a possible contributing factor. She could not exclude asphyxia or cardiac arrest from Cowen‘s mildly enlarged heart and arterial blockage as causes of death. Although there was no water in Cowen‘s lungs, the pathologist could not rule out drowning as the cause of death either.
5. Defendant‘s suicide attempts.
After he was arrested and placed in a holding cell, defendant tried to hang himself with his clothing. Officers took away his clothing and dressed him in a paper suit. While on suicide watch, defendant removed the paper suit and once again tried to kill himself.
B. Defense Case.
Defendant purchased a 750-milligram bottle of vodka at 3:44 p.m. on the day of the murder. He had a blood-alcohol concentration (BAC) of 0.023 percent when his blood was drawn the next morning at 11:41 a.m.
Two defense experts opined that, if a hypothetical man of defendant‘s age, height, and weight had not consumed any additional alcohol after 11:30 p.m., on June 14, 2016, yet still had a BAC of 0.023 percent the following morning at 11:40 a.m., the man would have had a BAC between 0.26 and 0.31 percent at 9:30 p.m. and a BAC between 0.22 and 0.23 percent at 11:30 p.m. the night before. One of the experts testified that someone with a BAC of 0.22 or 0.26 percent would be “immensely impaired” with respect to their ability to
III. DISCUSSION
A. Defendant‘s Conviction for First Degree Murder is Supported by Substantial Evidence of Premeditation.
Defendant does not dispute that he killed Cowen, but argues the evidence establishes he “killed [her] in a rash fit of rage rather than after a careful weighing of considerations.” Therefore, he contends the jury‘s finding that he acted with premeditation and its guilty verdict of first degree murder must be reversed and the verdict reduced to second degree murder. We disagree and affirm the jury‘s finding and verdict.
1. Additional background.
At the close of the People‘s case-in-chief, defendant moved for a directed acquittal (
Defendant responded the prosecutor‘s argument was speculative. He argued the undisputed evidence of Cowen‘s injuries was not enough to prove specific intent to kill and premeditation and deliberation, and he suggested the evidence supported a finding of reckless conduct. The trial court found the prosecution had introduced sufficient evidence to support a verdict of first degree murder and denied the motion.
Defense counsel argued to the jury the evidence did not establish premeditation or careful deliberation. Instead, he argued the evidence was more consistent with a “spontaneous, random, off the hook,” “thoughtless and uncareful” killing. He suggested defendant may have snapped and acted rashly and violently in an “alcohol-fueled rage.”
Finally, before sentencing, the trial court stated it found “sufficient credible evidence” to support the jury‘s verdict on count 1 and denied defendant‘s motion for a new trial or for imposition of the lesser verdict of second degree murder.
2. Standard of review.
“‘In determining evidentiary sufficiency, the court reviews the entire record, in the light most favorable to the judgment, for the presence of substantial evidence. Substantial evidence is evidence sufficiently reasonable, credible, and of such solid value “that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.“‘” (People v. Gonzales (2012) 54 Cal.4th 1234, 1273, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) “‘The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‘” (People v. Westerfield (2019) 6 Cal.5th 632, 713; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
“‘Even where, as here, the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might “‘“be reasonably reconciled with the
3. Applicable law.
Murder is the unlawful taking of the life of a human being or fetus with malice aforethought. (
considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Ibid.) An unlawful killing with express malice, such as a “willful, deliberate, and premeditated killing,” is first degree murder. (
To prove a killing was willful, deliberate, and premeditated, the People are not required to prove the defendant “maturely and meaningfully reflected upon the gravity of his or her act.” (
Our Supreme Court has identified three categories of evidence to consider when determining whether a murder was deliberate and premeditated: planning activity, motive, and the manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) When the record contains evidence in all three categories, the verdict is generally affirmed. (People v. Stitely (2005) 35 Cal.4th 514, 543.) But those categories or factors are not exclusive or determinative—they are merely intended to guide a reviewing court‘s assessment of whether the evidence supports a reasonable inference that the killing was the result of the defendant‘s preexisting reflection and not the result of an unconsidered or rash impulse. (People v. Cage, supra, 62 Cal.4th at p. 276.) “A first degree murder conviction will be upheld when there is extremely strong evidence of planning, or when there is evidence of motive with evidence of either planning or manner.” (People v. Romero (2008) 44 Cal.4th 386, 401; accord, People v. Proctor (1992) 4 Cal.4th 499, 529.)
4. Analysis.
The strongest factor to support a finding of premeditation and deliberation in this case was the manner of killing. The evidence, and the reasonable inferences to be drawn from it, suggests defendant argued with Cowen in the kitchen area, during which he threw or smashed glass and ceramic items (e.g., the picture frame and cat statue) and threw some of her belongings into the pool (e.g., the tweezers and lipstick case). The argument quickly escalated into defendant physically striking Cowen in the head, shoulder, and back with one or more blunt objects (such as the pepper mill) and yanking out two large clumps of her hair. Defendant then either strangled Cowen in the kitchen or dragged her from the kitchen to the pool and strangled her there. Finally, he left Cowen facedown in the pool and went back to his bedroom where he stripped down from his wet clothing and laid in bed until the police arrived.
From the evidence that defendant used multiple means of attacking and killing Cowen—striking her with a blunt object(s), yanking out her hair, strangling her with his hands,2 dragging her to the pool, and leaving her there
Defendant counters that the manner of the killing suggests “a sudden explosion of violence,” which was “the product of drunken rage” “rather than careful thought and weighing of considerations.” But we may not reweigh the evidence or reverse the jury‘s verdict merely because a reasonable jury might have drawn the inferences suggested by defendant. (People v. Williams (2018) 23 Cal.App.5th 396, 408, 410.) “The jury could have reasonably found that the victim‘s injuries reflected an emotional, berserk attack, as suggested by defendant‘s briefing. But it was permitted to find otherwise.” (Id. at p. 410.)
The same facts of defendant‘s multistage and multiple-method attack also support an inference of some planning activity. “The act of planning—involving deliberation and premeditation—requires nothing more than a ‘successive thought[] of the mind.‘” (People v. San Nicolas (2004) 34 Cal.4th 614, 658.) “[P]lanning activity occurring over a short period of time is sufficient to find premeditation.” (People v. Sanchez (1995) 12 Cal.4th 1, 34, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) To repeat, what matters here is the extent of the defendant‘s reflection on his actions, not its duration. (People v. Morales, supra, 10 Cal.5th at p. 88; People v. Cage, supra, 62 Cal.4th at p. 276.)
That defendant moved from each stage of the attack to the next—physically striking Cowen on the head, shoulders, and back, pulling out her hair, strangling her or dragging her to the pool, then strangling her there, and finally leaving her in the pool facedown—supports the inference that he engaged in some limited extent of planning during the attack but before he finally killed her. The suggestion in defendant‘s brief that the planning must have occurred a significant time before he commenced the attack itself is
Finally, there is strong evidence that defendant‘s motive for killing Cowen was because she obtained a restraining order, which required him to remove his dogs from the home. Defendant moved into Cowen‘s house around March 2016; yet, a few shorts months later, on May 31, a neighbor heard defendant yelling and screaming at Cowen in the backyard—when she apparently let defendant‘s dogs loose—telling her she would “rue the day” she was born if anything happened to the dogs. Later that day, another neighbor heard defendant yelling and screaming as he looked for his dog, saying “Fucking bitch” and “I can‘t believe she did that.” When the neighbor expressed some qualms about returning the dog to defendant, because she had heard him say he wanted to kill it, defendant said, “Oh, no. I would never do that to my baby.” He did not deny that he said he wanted to kill Cowen, and said, “I can‘t believe that bitch let [the dog] out.”
The evidence strongly suggests matters deteriorated rapidly between Cowen and defendant, and she clearly feared having any contact with him. On the day of the murder, police officers found they both were hoarding food and other essential items in their rooms, the kitchen was messy with dirty dishes, the refrigerator was mostly empty, and Cowen‘s bedroom was locked from the inside. It is equally clear from the evidence that the main source of contention was defendant‘s dogs because Cowen had taken the step of obtaining a temporary restraining order, which required defendant to remove them from the home and to stay five yards away from her. Defendant had the dogs locked up in his room when a police officer helped Cowen get inside the house, but the home smelled of dog urine.
Defendant responds he “had no motive to kill Cowen.” According to him, the evidence of “bad blood” between him and Cowen was motive for him to be angry with her, not motive for him to want to kill her. In addition, he argues killing Cowen as revenge for her getting a restraining order that required him to remove his dogs from the
home “would have been counter-productive because it meant that both he and the dogs would be out of a home.” And he argues there is no evidence that his threatening statements, overheard by neighbors two weeks before the murder, “were more than angry hyperbole.” But once more, defendant asks that we substitute our judgment for that of the jury and choose an inference favorable to him rather than a reasonable inference that is favorable to the judgment. (People v. Williams, supra, 23 Cal.App.5th at pp. 408, 410.) We decline to do so.