People v. Berryman

• Decision Date: 27 December 1993
• Docket Number: No. S008182,S008182
• Citation: 6 Cal.4th 1048,25 Cal.Rptr.2d 867,864 P.2d 40
• Parties: , 864 P.2d 40 The PEOPLE, Plaintiff and Respondent, v. Rodney BERRYMAN, Defendant and Appellant.
• Court: California Supreme Court

Page 867

25 Cal.Rptr.2d 867

6 Cal.4th 1048, 864 P.2d 40

The PEOPLE, Plaintiff and Respondent, v. Rodney BERRYMAN, Defendant and Appellant.

No. S008182.

Supreme Court of California In Bank.

Dec. 27, 1993.

As Modified March 16, 1994.

Paul M. Posner, under appointment by the Supreme Court, Paso Robles, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., W. Scott Thorpe, Edmund D. McMurray and Margaret Garnand Venturi, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

MOSK, Justice.

This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190 et seq.).

On November 2, 1987, the District Attorney of Kern County filed an information against defendant Rodney Berryman in the superior court of that county.

Count I charged that on or about September 6, 1987, defendant murdered Florence Hildreth. (Pen.Code, § 187.) It was alleged for death eligibility that he did so under the special circumstance of felony murder in the course of rape (id., § 261). (Id., § 190.2, subd. (a)(17)(iii).) It was alleged for enhancement of sentence that he personally used a deadly or dangerous weapon, viz., a knife. (Id., § 12022, subd. (b).)

Count II charged that on or about September 6, 1987, defendant raped Hildreth. (Pen.Code, former § 261, subd. (2), as amended by Stats.1985, ch. 283, § 1, pp. 1307-1308, Pen.Code, present § 261, subd. (a)(2).) It was alleged for enhancement of sentence that he personally used a deadly or dangerous weapon, viz., a knife. (Id., § 12022, subd. (b).)

Defendant pleaded not guilty to the charges and denied the allegations.

Trial was by jury. The panel returned a verdict of guilty as to murder and fixed the degree at the first. It found true the accompanying allegations of the felony-murder-rape special circumstance and the personal use of a deadly or dangerous weapon. It specially found that defendant killed Hildreth intentionally. It also returned a verdict of guilty as to rape. It found true the accompanying allegation of the personal use of a deadly or dangerous weapon. It subsequently returned a verdict of death for the murder. The court denied, among other motions, defendant's automatic application for modification of the verdict of death. (Pen.Code, § 190.4, subd. (e).) It proceeded to enter judgment as follows. For the murder, it imposed the sentence of death, with an additional and consecutive term of one year for personal use of a deadly or dangerous weapon. For the rape, it imposed a sentence of imprisonment comprising the upper term of eight years, with an additional and consecutive term of one year for personal use of a deadly or dangerous weapon. It stayed the sentence of imprisonment temporarily pending execution of the sentence of death and permanently thereafter. (Id., § 654.) It also ordered payment of a restitution fine in the amount of $100. (Gov.Code, § 13967.)

Finding no reversible error or other defect, we conclude that the judgment must be affirmed.

I. FACTS

A. Guilt Phase

The People introduced evidence to the following effect.

The time relevant is September 1987; the place is the small city of Delano in rural Kern County.

Florence Hildreth resided in Delano with her mother. She was a senior at Delano High School; she was 17 years of age, 5 feet 7 inches tall, and 108 pounds in weight. She had never been married. Her nickname was "Mimi."

Defendant had recently arrived in Delano, where he had spent part of his youth, in a red, black, and gray Mitsubishi pickup truck, having come from Los Angeles County. He was apparently unemployed; he was 21 years of age, 6 feet 2 inches tall, and approximately 190 pounds in weight. He was married and had a young son; he was estranged from his wife, who remained in Los Angeles County with the child. He was a womanizer. He was staying in Delano with a "girlfriend," Crystal Armendariz, who lived at the home of her mother, Brenda Clark, and her stepfather, Martin Clark; Armendariz was Hildreth's cousin and the Clarks were her aunt and uncle. Defendant and Hildreth were acquaintances.

On September 6, 1987, defendant and Armendariz drove to Bakersfield in his pickup truck and returned to Delano sometime in the late afternoon or early evening. Apparently about 8:30 p.m., they arrived at the Clark home. They ate lasagne for dinner. Defendant then left alone. About 9 p.m., he drove a short distance to the residence of a woman named Donna Faye Warner; he attempted to "pick her up"; he was unsuccessful. About 9:20 p.m., he drove a short distance to the residence of a woman named Melinda Regina Pena; he attempted to "pick her up"; this time, he was successful. They drove to Lake Woollomes. There they stayed about 30 minutes, having sexual intercourse on the grass. On the trip back, he asked her to be his "girlfriend"; she refused, saying she already had a "boyfriend"; he became upset. Thereupon, he dropped her off outside her home.

About 10:30 p.m., Hildreth was at the house of Diane Pruitt, one of her aunts, with whose family she had planned to spend the night. At that time, she set out to walk to the Clark home to find out whether she had received a telephone call she had been expecting. She promised she would return straightway. The distance was approximately one block. About 10:34 p.m., she arrived at the Clark home. Armendariz was there. Defendant was not. Apparently, he was then about to return, or actually returning, from Pena's home, which was also located in Delano. Hildreth checked for telephone calls, and found none. About 10:45 p.m., she left to go back to Pruitt's. One of her uncles offered to escort her, but she declined. She never arrived at her destination.

About 11 p.m., defendant's pickup truck was seen pulling out of a convenience store onto Cecil Avenue and proceeding in a westbound direction. Two persons were observed in the vehicle. Shortly thereafter, it appears, defendant's pickup truck was seen parked on the shoulder of Cecil Avenue in the westbound direction some few miles away.

Later that night--the time is uncertain--defendant returned to the Clark home. Armendariz let him in. He was calm. He asked for something to eat. She warmed up a plate of leftover lasagne. He ate the food and eventually went to sleep. Apparently, he had drunk alcoholic beverages throughout the day but did not become intoxicated.

On the morning of September 7, 1987, Hildreth's body was found sprawled on an isolated dirt road extending south off Cecil Avenue at a right angle, about four-tenths of a mile from the location at which defendant's pickup truck had been seen parked the previous night. Before death, Hildreth had apparently been dragged to the spot and beaten about her head and body, including the right iliac or pelvic region. She was fatally stabbed in the front of her neck on the right side to a depth of about three quarters on an inch, with a nick to the carotid artery. It appears that a knife was used, and broken, in the attack. As she lay dying, her right cheek was evidently pressed down and abraded by the sole of a shoe for some appreciable period of time--apparently more than one minute and perhaps as long as three to five. When found, her body was practically nude, with the upper clothing pushed up above her chest toward her neck and the lower clothing pulled down around her left ankle; two pubic hairs rested on the left side of her head; her legs were spread apart; her right iliac or pelvic region showed abrasions; and her vagina contained blood and sperm cells--a serologist testified that a vaginal swab revealed the presence of a "very small amount of blood," the "presence of sperm cells, spermatozoa," and the presence of a "very, very small amount of semen." All the injuries were ante mortem.

At the scene of the crime were discovered distinctive shoe prints and tire tracks. The shoe prints were very similar to those of defendant's shoes. The tire tracks were very similar to those of his pickup truck. At least one of the tires in question was seen leaning, without a rim, against a fence at the Clark home about 8 a.m. on September 7; it had not been seen there on September 6. Also discovered at the crime scene was a small round yellow metal jewelry clasp that could have come from a chain that defendant owned and that was found in his pickup truck.

It was determined that the passenger-door window of defendant's pickup truck bore Hildreth's right thumbprint on its inside surface. It was also determined that the abrasion on Hildreth's right cheek displayed a pattern similar to that of the sole of defendant's right shoe. It was ascertained that the shoelace of defendant's right shoe was stained with blood that could have been deposited by only 0.068 percent of the Black population; he was not a possible donor, but Hildreth was. It was also ascertained that one of the two pubic hairs resting on the left side of Hildreth's head was consistent with defendant's and inconsistent with hers, and that the other was consistent with hers and inconsistent with defendant's.

In statements made to friends and acquaintances on September 7, 1987, defendant revealed that Hildreth had been killed and, more specifically, that she had been killed by stabbing; he did so before that fact was generally known. He claimed that Hildreth had met her death at the hands of some unidentified persons from Los Angeles, and said that he wanted a gun to pay them back. He also claimed that a scratch that marked his face resulted from a game of basketball earlier in the day. Overhearing a comment that his pickup truck had been seen on Cecil Avenue sometime the previous night, he immediately denied the fact, stating that "it wasn't his truck" and that "he was at a girl's house the whole time." He telephoned a "girl" he called "Connie" and "tr[ied] to make [her] say that he was there the...