People v. Pettress CA4/2 ( 2021 )

Filed 9/21/21 P. v. Pettress CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077007
v. (Super.Ct.No. FBA1100128)
DUREE GRAVES PETTRESS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A.
Camber, Judge. Affirmed.
Duree Graves Pettress, in pro. per.; and Jennifer A. Gambale, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant Duree Graves Pettress appeals the San Bernardino
County Superior Court’s denial of her petition for resentencing made pursuant to section
1170.95 of the Penal Code.1 We affirm.
BACKGROUND
The events leading up to defendant’s petition for resentencing are taken from our
opinion issued in her appeal from the judgment. (People v. Pettress (July 21, 2014,
E056585 [nonpub. opn.].) A copy of the opinion is included in the record on appeal.
In March 1995, three-year-old T. and his four siblings were removed from their
parents’ custody. They were placed in the home of defendant and her husband,
Lafayette, with oversight by Child Protective Services. Defendant is the children’s
paternal aunt.
One evening nine months later, defendant and Lafayette ordered pizza but forbade
T. and his older brother from having any because they had gotten into trouble. The next
morning, T. ate a piece of pizza. In response, defendant dragged him into the bathroom
and told him to spit up the pizza. When he failed to do so, defendant stomped on his
stomach, then put him over the toilet and told him again to spit up the pizza. Defendant
repeated that process twice more until T. went limp. Lafayette had a clear view of what
was happening, but did not intervene. Two of T.’s sisters, nine-year-old Evelyn and six-
year-old J. also saw what defendant did to T. After inflicting T.’s injuries, defendant told
Lafayette to take the children to school. After they left, defendant called 911 and T.,
1 All further statutory references are to the Penal Code.
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who appeared lifeless when emergency personnel responded to the call, was declared
dead after he arrived at the hospital.
While taking the children to school, Lafayette told them he and defendant would
kill them all if anyone said what he and defendant had done. He told Evelyn not to blame
defendant and, if anyone asked, Evelyn was to say that she had done it. When questioned
by authorities, Evelyn took the blame. The children were removed from defendant’s
home and put in separate foster placements. Months later Evelyn told her foster parent
she did not hurt T. and related what had happened. J. told a therapist what she had seen.
In 2012, an amended information was filed charging defendant and Lafayette with
one count each of murder. (§ 187, subd. (a).) A jury found defendant guilty of second
degree murder (§ 187, subd. (a)) and found Lafayette guilty of involuntary manslaughter
(§192, subd. (b)). The trial court sentenced defendant to a prison term of 25 years to life.
Defendant and Lafayette appealed their convictions to this court and we affirmed.
(People v. Pettress, supra, E056585.)
DEFENDANT’S PETITION FOR RESENTENCING
In 2018, the Legislature enacted section 1170.95 (Stats. 2018, ch. 1015, § 4,
eff. Jan. 1, 2019), a provision that authorizes a person convicted of felony murder or
murder under a natural and probable consequences theory to file with the sentencing
court a petition to vacate the conviction and be resentenced.
Defendant filed a petition for resentencing on March 27, 2019. The People
opposed the petition and defendant filed a response to the opposition. Defendant did not
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appear but was represented by counsel on April 16, 2021, when the trial court found
defendant failed to establish a prima facie case for relief and denied her petition. The
finding was based upon the court’s review of the petition, the briefs, and the record of
conviction. Defendant appealed, and we appointed counsel to represent her.
DISCUSSION
Defendant’s counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, which sets forth
statements of the case and facts, and requests this court to independently review the entire
record on appeal. Counsel also suggests one potential arguable issue: whether the trial
court erred when it dismissed defendant’s section 1170.95 petition for resentencing.
We offered defendant an opportunity to file a personal supplemental brief, which
she has done. In her handwritten letter submitted in response to our invitation, defendant
does not raise any issues relating to her section 1170.95 petition. Instead, she poses 10
questions she believes need to be addressed and which she claims support the conclusion
she “deserve(s) another trial.” The questions relate to the timing of her arrest and factual
matters she contends should have been raised during her trial. The time for seeking
review of those issues has long since passed. (Cal. Rules of Court, rule 8.308(a) [an
appeal must be brought within 60 days after rendition of the judgment].)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
conducted an independent review of the record and find no arguable issues.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
SLOUGH
J.
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