P. v. Pitts
Filed 7/25/13 P. v. Pitts CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
APRIL ARMENA PITTS,
Defendant and Appellant.
B242562
(Los Angeles
County
Super. Ct.
No. BA358709)
APPEAL from
a judgment of the Superior Court
of
County, Monica Bachner, Judge.
Affirmed.
James
Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Stacy S. Schwartz and William Shin, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
>
April
Armena Pitts was convicted of second
degree robbery, and the jury found true that she personally and
intentionally discharged a handgun and personally inflicted great bodily
new trial motion, arguing that her trial counsel provided ineffective
assistance in failing to present evidence that someone else committed the
robbery. We affirm.
BACKGROUND
An
information filed March 1, 2012
charged Pitts with one count of attempted willful, deliberate, and premeditated
murder, in violation of Penal Code
name="_ftnref1" title="">[1]
sections 665 and 187, subdivision (a), and one count of second degree robbery,
in violation of section 211. As to both
counts, the information alleged that Pitts personally and intentionally
discharged a handgun which caused great bodily injury, within the meaning of
section 12022.53, subdivisions (b) through (d), and that Pitts personally inflicted
great bodily injury within the meaning of section 12022.7, subdivision
(a). The information also charged that
Pitts had four prior felony convictions and was ineligible for probation under
section 1203, subdivision (e)(4). Pitts
pleaded not guilty and denied the allegations.
At trial,
in opening statement, the defense argued that Pitts’s cousin “Anna†shot and
robbed the victim, not Pitts, and that Pitts confessed to the crime to protect
Anna.
The victim,
Rosario Schwartz, testified that she was walking on a brightly lit 3rd
Street near Kings Road
at around 11:20 p.m. on June 29, 2009. A girl came running up behind Schwartz,
grabbed her purse (which was on her shoulder), and pulled her around. Schwartz’s purse slid to her elbow and “when
I whipped around, I was face to face to her, looking at her in the eyes, and
she had a gun, and she’s like, ‘Give me your purse or I’ll shoot.’†The girl was Pitts. Schwartz responded, “‘Please, no. I have no money. I’m a missionary. I’m broke.’â€
Pitts pulled on the purse again, bringing the strap to Schwartz’s
wrist. Schwartz held it for a moment,
but Pitts pulled the purse again and shot Schwartz in the chest. Schwartz put her hand on her chest, pulled it
away and saw blood, and said, “‘You shot me.’â€
Schwartz looked at Pitts, who had a “deadly†look as if “[s]he could
care less,†and Pitts turned around and ran away. Schwartz thought she heard Pitts fire twice
more into the air.
Schwartz
saw Pitts run and get into a gold Acura Legend, which took off immediately down
the street. The license plate bore the
word “SHIELD.†Schwartz couldn’t
remember how Pitts got into the car, but the car was moving forward when the
door was barely closed, so she thought someone other than Pitts was
driving. Schwartz went back out into 3rd
Street and flagged down a car; the driver had
already called an ambulance, and the driver followed the car. People came to help until the paramedics
arrived and took Schwartz to the hospital.
At the hospital five days later, Schwartz identified Pitts as the
shooter in a photographic six-pack lineup:
“As soon as they put those photos in front of me, my eyes, like bang, it
was there, and I knew without a doubt that that was the girl who had shot me.†Schwartz still had no doubt about her
identification of Pitts’s photograph.
She had also identified Pitts at the preliminary hearing. The bullet tore her esophagus and both lungs
collapsed, and Schwartz was still in constant pain at the time of trial.
Los Angeles
Police Department (LAPD) Detective Paul Funicello was the assistant
investigator of the shooting. He
testified that while Schwartz was in the hospital, he showed her the six-pack
photographic lineup, and Schwartz quickly identified Pitts’s photograph as
looking like the person who attacked her.
Anastasia
Kramer testified that at around 11:20 p.m.
on June 29, 2009, she was
driving on 3rd Street when
she heard a gunshot and saw a woman run into the middle of the road, yelling
for help. Kramer slowed down, and the
woman said, “I got shot,†pointing at a group of two men and a woman standing
on the corner near the curb. The group
ran toward an Acura, jumped inside, made a u-turn, and drove off; she didn’t
see anyone else in the car. A man was
driving. Kramer followed them in her car
without losing sight of the Acura. At
some point they jumped out of the car and ran off across the street. Kramer called 911, and the police arrived;
she pointed out the car she had followed.
She told the police that the people in the car were two male blacks and
one female, possibly Hispanic, but did not provide any further description.
At sidebar,
defense counsel indicated that if the prosecution introduced the tape of
Pitts’s confession, he would put her on the stand. The prosecution objected to a proposed
defense expert on eyewitness identification, stating that Pitts’s own admission
was independent evidence of her guilt; the court pointed out that the jury had
not heard the confession, except for the reference to it in the defense’s
opening statement. Defense counsel then
argued that there were issues with Schwartz’s identification of Pitts, and even
if the confession were introduced, he would bring out an explanation for the
statement. The trial court stated that
it would allow the defense expert to testify.
After counsel conferred, defense counsel stated he had confirmed that
the prosecution would not offer the taped confession if the expert did not
testify; instead, the people would call one more witness and rest. Defense counsel then stated he wanted to
confer with Pitts to discuss whether to introduce the expert testimony,
although the decision of what witnesses to call was counsel’s to make based on
his evaluation of the evidence. After a
brief recess, the prosecution indicated that it was going to call one more
witness, and then rest.
LAPD
Officer Juan Hernandez testified that he responded to the scene of the
shooting, and then responded to an additional call which took him to where
Kramer had followed the Acura. She
flagged the officers down and pointed to the car, a gold Acura Legend. The license plate said “SHIELD.†Officer Hernandez searched the car, and found
a cell phone on the front seat, and two purses in the trunk. One of the purses contained a prescription
bottle with the name April Pitts. The
other purse contained various documents with the name “Quanique Anna Marie
Williams.†The detective could not
determine the owner of the cell phone.
After
Officer Hernandez’s testimony, the trial judge called a brief recess so that the
prosecutor could make a final determination whether to introduce the taped
confession. After the recess, the
prosecutor stated that there would be no more witnesses and the prosecution
would rest. Defense counsel moved for
dismissal under section 1118. When the
court denied the motion, counsel stated that the defense would rest and rely on
the state of the evidence.
In closing,
the prosecutor argued that Schwartz’s identification of Pitts was consistent and positive. Defense counsel argued that “the big issue,
the overriding issue in this case, is whether or not April Pitts . . . is the
person that robbed and shot Rosario Schwartz.â€
The identification of Pitts was “so fleeting, . . . so quick, . . . so
uncorroborated, that it’s not reliable.â€
The robbery occurred at night, Schwartz was face-to-face with the robber
only briefly, Schwartz’s description was vague, the six-pack identification
occurred a few days after surgery in the hospital, and victim and robber were
of different races (Pitts was African-American, and Schwartz was Hispanic or
Caucasian). The prosecution failed to
prove that Pitts was the robber, and the police did not do an adequate
investigation. The police should have
shown Schwartz photos of Williams, the other woman whose documents were found
in the car, but they did “zero†investigation of Williams. Most of the property in the Acura belonged to
Williams. Further, Kramer testified that
the female she saw was Hispanic. In
rebuttal, the prosecution argued that as to the third party, the defense
brought it up in opening and closing argument, but “everywhere in between where
it really, really, really counts . . . the part of the
trial where evidence is presented, there’s nothing about this other person.†To believe that Schwartz’s identification was
mistaken, the jury would “have to believe that there’s this person who looks
just like the defendant, who happened to be out at that exact location and at
that exact moment in time,†and that “evil twin . . . happens
to jump into a car that just happens to have property belonging to the
defendant,†a coincidence that was unreasonable.
The jury
deadlocked on the charge of attempted murder, and found Pitts guilty of second
degree robbery, finding true the firearm and great bodily injury allegations. The court found that Pitts was in violation
of her probation in case number TA103512.
The prosecution dismissed the attempted murder count.
Before
sentencing, Pitts retained a private pro bono attorney, who intended to file a
new trial motion. The court relieved
public defender David Hizami from Pitts’s representation. The motion for a new trial argued that the
public defender provided ineffective assistance of counsel in failing to
present evidence that Williams, not Pitts, committed the crime; Schwartz
mistakenly identified Pitts as the robber; and Pitts’s confession was false,
made to protect her cousin Williams and because Pitts “wackily believed that,
since she was innocent, she couldn’t be convicted based on her confession.†At the evidentiary hearing on the new trial
motion, Pitts waived the attorney-client privilege for the purposes of the
hearing.
Hizami
testified that during the trial, he and Pitts elected to rely on the evidence
presented by the prosecution (the pill bottle, the “tenuous†eye-witness
identification and the “somewhat ambiguous†six-pack identification) and to
argue that the prosecution had not met its burden. They had agreed that he would not call the eyewitness
identification expert, because the prosecution then would have presented
Pitts’s confession. Had the confession
come in, he would have had Pitts testify to rebut it.
Pitts had
told him that she had denied being the robber in a first interview by the
police before she confessed; there was no report taken of that interview. Pitts had also told Hizami that Williams had
committed the robbery. Pitts had been
riding in the car with Williams and two others, robbing people in the
area. She got out of the car when she
had had enough and tried to convince Williams to leave too, but Williams said
she needed the money to support her kids.
After the car drove down the street, Pitts heard a gunshot, and saw
Williams and Schwartz. Pitts made eye
contact with Schwartz and fled, hiding and then taking a cab home, which
Williams paid for with a credit card Williams had robbed from Schwartz.
Hizami
believed it would be “foolish†to verify that story or pursue it further, since
it was not an alibi and instead tied Pitts to the victim in a way that would
allow the prosecution to incriminate Pitts (who had also told him that her
boyfriend used the credit card to buy gasoline). “[T]ying the defendant to the victim and her
credit card would have caused more harm than benefit.â€
Hizami
“would have loved to have gotten Anna Williams to come to court. She had a warrant out for her arrest. According to Ms. Pitts, ‘she was in the
wind’ . . . ‘hiding out’†in another state. He had seen a photograph of Williams and
thought she and Pitts looked somewhat similar.
her name in the Los Angeles County jail system, but at the time of the
preliminary hearing and pretrial, the warrant for Williams was still
outstanding and the police were still looking for her. He did not hire an investigator regarding the
other people in the car, because he had no information from Pitts about who
they were.
Hizami went
through the confession carefully five or six times, and thought the confession
was “very, very incriminating,†and as he discussed with Pitts, if they
presented evidence corroborating her story the confession would come in. Instead, he argued to the jury that the
eyewitness identification was tenuous.
He knew that there were contradictions in the confession, but on balance
he believed the confession would have been more detrimental than beneficial to
Pitts’s defense. All of this was a
tactical decision, as Hizami did not think the prosecution had met its burden. He had discussed this with Pitts over and
over, and “we both elected to rely on the state of the evidence.†Pitts understood that if the eyewitness
expert testified, her confession would come into evidence; she also understood
the pros and cons of testifying herself, and elected not to take the stand, a
decision that was “hers, not mine.â€
Further,
Hizami was aware that if Pitts testified, she would be impeached with her
criminal record, and he was “most concerned about . . . the probation case that
[the court] had on [its] desk when we went into chambers. I was waiting for the shoe to
drop, . . . that the court or the people would realize
that, wow, she’s on probation for a strike, and none of you picked that
up.†Pitts’s confession included details
of other crimes that she took part in before the shooting and robbery of
Schwartz, and he worried that would look bad to the jury. He had mentioned the confession in his
opening statement because at the time he had been told that the prosecution was
going to introduce the confession into evidence.
Hizami
continued to believe that Pitts was not guilty.
Pitts
testified that she told Hizami that Williams committed the robbery, and that
she confessed to protect Williams, who had children. Pitts was in the car that night, and told
Williams she was leaving and asked Williams to get out of the car, but Williams
wouldn’t leave. Shortly after Pitts left
and when she was about a block away, she heard the gunshot. She ran in the opposite direction and took a
cab to the house of another woman who was also in the car. Williams showed up later and said she had
shot someone but didn’t mean to, and Williams paid the taxi driver with a
credit card belonging to Schwartz.
Although
Hizami had a photograph of Williams (who resembled Pitts), he did not present
it to the jury, telling Pitts that no matter what, Schwartz “is so stuck on
this being me, that she couldn’t possibly be wrong†and would say she did not
recognize the photograph. Hizami also
told Pitts that finding the cab driver would just tie her to Schwartz’s stolen
credit card. Hizami told her to tell the
judge that she didn’t want to testify, because “‘we can hurry up and get the
case done with’†and “‘[i]f not, he’s going to put this confession on, and
that’s . . . not good for you.’†Pitts
had not realized her confession was being recorded.
Pitts told
Hizami to go find Williams and the other people in the car. Hizami told Pitts the fewer people in the
case, the better, and he never interviewed any of them. He also did not get William’s phone records
or the cab driver’s records.
The trial court stated that it
was not ineffective assistance that Pitts did not testify; counsel discussed it
with her and she made her decision. The
discussion of the confession in the opening statement was a tactical decision
to address harmful evidence; further, the jury was instructed that counsel’s
statements were not evidence, and so this also was not ineffective
assistance. As to the other possible
witnesses, including Williams, it was speculative what their testimony would
have been, and so Pitts had shown no prejudice from their absence. The record also showed that Hizami consulted
with a false confession expert and an identification expert, and on the basis of
those consultations chose to rely on the state of the evidence. Counsel also made efforts to track down
Williams. Counsel’s decisions were
reasonable given the prosecution’s evidence, even if a different attorney would
have made different choices. The court
saw no prejudice from counsel’s strategic decisions, and denied the motion for
a new trial.
The trial
court sentenced Pitts to pay restitution of $65,948.30 to the state victims
compensation board, and other fines and fees.
The court imposed the high term of five years on the robbery count, and
the mandatory 25-year term for the use of a firearm causing great bodily
injury. The court stayed the sentences
on the other firearm enhancements. The
court also revoked and terminated Pitts’s probation in the other case,
TA103512, without adding any consecutive time.
Pitts filed
this timely appeal.
DISCUSSION
“‘We review a trial court’s ruling on a motion for a new trial
under a deferential abuse-of-discretion standard.’ [Citations.]
‘“A trial court’s ruling on a motion for new trial is so completely
within that court's discretion that a reviewing court will not disturb the
ruling absent a manifest and unmistakable abuse of that discretion.â€â€™ [Citations.]â€
(People v. Thompson
(2010) 49 Cal.4th 79, 140.) Ineffective assistance of counsel, if proven,
is a valid, nonstatutory ground for a new trial. (People v. Fosselman (1983) 33
Cal.3d 572, 582–583; People v. Reed (2010) 183 Cal.App.4th 1137, 1143.) Upon appeal from
the denial of a new trial motion based on a claim of ineffective assistance or
other denial of constitutional rights, we apply two distinct standards of
review. We defer to the trial court’s
factual findings if supported by substantial evidence, but we exercise de novo
review over the ultimate issue of whether the defendant’s constitutional rights
were violated. (People v.
Taylor (1984) 162 Cal.App.3d 720, 724–725.)
To establish ineffective assistance of
counsel, a defendant has the burden of proving both that his counsel’s
performance was deficient under an objective standard of professional
responsibility and that there is a reasonable probability that but for his
counsel’s errors, he would have obtained a more favorable result at trial. (Strickland
v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
In examining claims of ineffective assistance of counsel, we give
great deference to counsel’s reasonable tactical decisions. (People v. Hinton (2006) 37 Cal.4th
839, 876.) “[A]
court must indulge a ‘strong presumption’ that counsel’s conduct falls within
the wide range of reasonable professional assistance because it is all too easy
to conclude that a particular act or omission of counsel was unreasonable in
the harsh light of hindsight.†(Bell
v. Cone (2002) 535 U.S. 685, 702.) Accordingly, “a court must ‘view and assess
the reasonableness of counsel’s acts or
omissions . . . under the circumstances as they stood at
the time that counsel acted or failed to act.’â€
(In re Scott (2003) 29 Cal.4th 783, 812.) “‘[T]he relevant inquiry under Strickland is not what
defense counsel could have pursued, but rather whether the choices made by
defense counsel were reasonable.’†(Babbitt
v. Calderon (9th Cir.1998) 151 F.3d 1170,
1173.) Further, prejudice must be
established as “‘“a demonstrable reality,†not simply speculation as to the
effect of the errors or omissions of counsel.’â€
(In re Clark (1993) 5 Cal.4th 750, 766.)
On appeal, Pitts admits that Hizami’s
decision not to present third-party culpability evidence was a tactical decision,
but argues that it was not a reasonable
tactical decision because Hizami failed to reasonably investigate Williams’s
whereabouts and whether she looked like Pitts.
We disagree.
First, the trial court concluded from
Hizami’s testimony that he made efforts to track Williams down, and those
efforts were reasonable given the strength of the prosecution’s evidence. Substantial evidence supports this
conclusion. Hizami testified that he
“would have loved†to have Williams in court; knew that Williams was “in the
wind†and had a warrant out for her arrest; learned from Pitts that Williams
was hiding out in another state; and did a Google search on Williams and
checked the county jail system. That
investigation was reasonable, especially given that Hizami believed (and still
believed at the time of his testimony) that the prosecution’s evidence was
weak, and he knew that if he challenged Schwartz’s identification of Pitts via
the eyewitness expert, the prosecution would introduce into evidence Pitts’s
confession. Given the difficult
balancing act involved in attempting to keep the jury from reading or hearing
Pitts’s confession, it was reasonable for Hizami not to launch an all-out
attempt to find Williams. There was a
warrant out for Williams’s arrest, and it is difficult to imagine what efforts
Hizami could have deployed to find her when law enforcement had not.
The same analysis applies to whether
Hizami should have more aggressively determined whether Pitts resembled
Williams. The purpose of that determination
would have been to support the testimony of the eyewitness expert, and that
testimony would have brought Pitts’s confession before the jury.
Second, as Hizami testified (and as
Pitts concedes), Hizami made a string of tactical decisions. First, he intended to challenge the
eyewitness identification at trial by putting an expert on the stand. When the prosecution stated that it would
then introduce Pitts’s confession, Hizami withdrew the expert, in agreement
with Pitts; if he had gone ahead with the expert and the prosecution had put
the confession into evidence, Pitts would have testified to rebut it, and the
only other story she had told tied her to the use of Schwartz’s stolen credit
card. Pitts elected not to testify. Had she done so, she would have been
impeached with her criminal record, and that record might have alerted the
prosecution or the trial court that Pitts was on probation for a strike (there
were no strike allegations in the case).
Under those circumstances, we cannot second-guess counsel’s decision
that finding Williams was not essential to his defense of Pitts.
Further, as the trial court concluded,
Pitts did not demonstrate that she was prejudiced by the extent of Hizami’s
investigation. Hizami did argue that
Schwartz’s identification of Pitts was unreliable, and that the police should
have investigated Williams’s possible culpability. As Hizami
explained, introducing additional evidence to advance the theory that Williams
was the robber presented numerous dangers.
Pitts has not demonstrated how Hizami’s strategic decisions, made to
avoid those dangers (including the discovery of the prior strike which the
prosecution had not alleged), demonstrably prejudiced her. We perceive no reasonable probability that
the outcome of trial would have been better for Pitts if Hizami had increased
his efforts to locate Williams, or had determined that the two women looked
alike.
The trial court did not abuse its
discretion in denying Pitts’s motion for a new trial based on her allegations
of ineffective assistance of counsel.
The
judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON,
J.
We concur:
MALLANO, P. J.
CHANEY, J.
name="_ftn1" title="">[1]
All further statutory references are to the Penal Code.
name="_ftn2" title="">[2]
Hizami later testified that he did not recall ever seeing a photograph of
Williams, and would not have shown such a photograph to the jury unless Pitts
had taken the stand to lay a foundation for who Williams was.
