223 Cal.App.3d 606, F006225, People v. Pitts

Docket Nº:F006225
Citation:223 Cal.App.3d 606, 273 Cal.Rptr. 757
Party Name:People v. Pitts
Case Date:September 05, 1990
Court:California Court of Appeals
 
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223 Cal.App.3d 606

273 Cal.Rptr. 757

The PEOPLE, Plaintiff and Respondent,

v.

Ricky Lynn PITTS et al., Defendants and Appellants.

No. F006225.

California Court of Appeal, Fifth District

Sept. 5, 1990.

Review Denied Nov. 28, 1990.

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Michael Snedeker, Oakland, Richard Phillips, Sacramento, Richard Power, Shingle Springs, Kyle Gee, Oakland, Cynthia A. Thomas, Laurance S. Smith, Sacramento, and Robert Fiedler, San Francisco, under appointments by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Arnold O. Overoye, Chief Asst. Atty. Gen., Jane N. Kirkland, Asst. Atty. Gen., Roger E. Venturi and Thomas F. Gede, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

BEST, Associate Justice.

STATEMENT OF THE CASE

On July 25, 1984, a 53-count information (No. 27641) was filed in Kern County Superior Court, charging Ricky Lynn Pitts (hereinafter Rick), Marcella Pitts (hereinafter Marcella or Tutti), and Colleen Forsythe (hereinafter Colleen) 1 with conspiracy (PEN.CODE, § 182)2, forcible lewd and lascivious acts on children under the age of 14 (§ 288, subd. (b)), use of children for purposes of pornography (§ 311.4, subd. (c)), child endangerment (§ 273a), and assault (§ 245, subd. (a)).

On August 16, 1984, a 58-count information (No. 27774) was filed in Kern County Superior Court, charging Grace Dill (hereinafter Grace), Wayne Dill, Jr. (hereinafter Dill), and Gina Miller (hereinafter Gina) with the same basic offenses, involving the same children. On September 17, 1984, the two cases were consolidated upon the People's motion.

On November 13, 1984, a 44-count information (No. 28244) was filed in Kern County Superior Court, charging Wayne Forsythe (hereinafter Forsythe) with the same basic offenses, involving the same children. His case was consolidated with the other two on November 15, 1984.

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Trial began December 13, 1984. On December 17, the People were granted leave to file amended informations in Nos. 27641 and 27774. 3 Jury selection commenced January 14, 1985; a jury was sworn to try the case on February 14. Presentation of evidence began February 27.

On May 20, 1985, prior to resting their case, the People moved to amend the informations to conform to proof. The motion was granted. On June 10, second amended informations were filed in Nos. 27641 and 27774, and a first amended information was filed in No. 28244.

Following an extremely contentious trial, filled with motions for dismissal, mistrial, sanctions, severance, and the like, the jurors began deliberations on July 22, 1985. On August 2, they returned guilty verdicts against all defendants on all counts.

Rick, Tutti, and Colleen were each convicted of one count of violating section 182, forty-five counts of violating section 288, subdivision (b), two counts of violating section 311.4, subdivision (c), three counts of violating section 273a, and two counts of violating section 245.

Grace, Dill, and Gina were each convicted of one count of violating section 182, forty-nine counts of violating section 288, subdivision (b), two counts of violating section 311.4, subdivision (c), three counts of violating section 273a, and two counts of violating section 245.

Forsythe was convicted of one count of violating section 182, thirty-four counts of violating section 288, subdivision (b), six counts of violating section 311.4, subdivision (c), and three counts of violating section 273a.

All defendants subsequently moved for new trials; the motions were denied.

Sentencing took place on August 30, September 3, and September 4, 1985. Forsythe was sentenced to 285 years in prison. Rick, Tutti, and Colleen each received 373 years in prison. Grace, Dill, and Gina each received terms of 405 years in prison.

Timely notices of appeal were filed.

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STATEMENT OF FACTS

I. Family Tree

Grace Dill has six children. Four of them were accused in the instant case: Colleen, Dill, Tutti, and Clovette. Clifford and Norma Pitts have two sons who were accused: Clifford Pitts, Jr. (Cliffy), and Rick.

Cliffy and Clovette are married. They were not prosecuted because they fled the state. Clovette has three children: Christine H., born August 10, 1973; Bobo (James) O., born in 1977; and Brandy O., who was born in 1978. At the time of trial, Bobo and Brandy were believed to be with Cliffy and Clovette.

Rick and Tutti are also married. Prior to his arrest, Rick had custody of his daughters by a previous marriage to Linda Pitts Cardoso: Carol P., born February 3, 1973; and Lisa P., born April 3, 1977. Both girls are alleged to have been victims.

Tutti was previously married to John M., Sr. (hereinafter John), who at the time of trial was married to Janice M. John had custody of his and Tutti's three sons: Johnny M., born August 24, 1973; Tommy M., born February 12, 1975, and Brian M., born May 9, 1977. All are alleged victims.

Colleen and Forsythe are married. Colleen has two daughters by prior marriages: Windy B., born April 29, 1975; and Amanda B., born April 25, 1979. Both are alleged victims.

Gina is an acquaintance of Colleen and Tutti. Although there was some testimony regarding her children, none were alleged as victims.

II. Development of the Case

Sometime after Brian's birth, Tutti and John separated. Tutti and the boys moved to Oklahoma and she and John divorced in 1980. John and Janice were married March 28, 1981.

After the marriage, Tutti and her sons returned to Bakersfield. Eventually, Tutti got a job at the Knotty Pine Cafe, which was owned by Clifford and Norma Pitts. It was there that Tutti met Rick; they began dating steadily in April 1982. At that time, Rick was living at 316 Sycamore,

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Oildale, 4 with another woman and his daughters, Carol and Lisa. The woman moved out in August 1982, and Tutti moved in at the end of August or beginning of September.

In March 1982, John instituted proceedings to obtain custody of the boys, Johnny, Tommy and Brian. He was successful, and Tutti turned them over to him on April 5, 1982. Beginning that month, Tutti received visitation on alternate weekends. She was also to receive visitation the entire month of July. During the latter half of 1982 and all of 1983, visitation took place at the green house. Tutti had the boys every other weekend until the end of June 1983.

Rick and his father traveled to Oklahoma at the beginning of May 1983. Rick returned to Oildale a couple of weeks later, but moved to Boswell, Oklahoma, on July 2, 1983. His parents, daughters, and brother Mike moved with him. Tutti did not go with him at the time.

Tutti got the boys for visitation on July 1, 1983. By then she had moved out of the green house and was living with Cliffy, Clovette, Bobo, and Brandy. The first day Tutti had the July extended visitation, she hired a babysitter while she ran an errand. As a result of the sitter smoking marijuana, the boys were taken to shelter care. Unable to get them out until July 5, John and Janice took legal action which resulted in Tutti losing her extended July visitation and resuming alternate weekend visitation the last week of July.

Rick returned to Bakersfield around the middle of August to help Cliffy move to Boswell. When Rick returned to Oklahoma a few days later with Cliffy, Tutti went with them. Tutti came back to Bakersfield in September but returned with Rick to Oklahoma where they were married on November 26, 1983.

In January 1984, Donald Silvius was working as a counselor at Brian's school. Brian and a group of children were found playing in an unauthorized area. A child claimed she had been forced to the ground by the children, who were "humping" her and trying to "kiss her booty." Silvius talked to the children involved; of them, Brian, then not yet seven, stood out in terms of his sexual sophistication and terminology.

When asked about the incident, Brian said he was accused of humping the girl and kissing her booty, but denied doing so. When Silvius asked how

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Brian knew about such things, Brian replied, "Oh, it happened." Silvius assumed Brian was talking about a long time ago and said so, but Brian said, "No, no, just the other day." Silvius asked Brian where and with whom, and Brian mentioned Tutti. As a result, Silvius made a report to Child Protective Services. He also told Janice, Brian's stepmother, what Brian had said and encouraged her to tell the police; when she appeared hesitant, he said he would report it if she did not.

Deputy Jesse Sneed contacted Janice on February 8, 1984, after which he interviewed Brian...

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