People v. Clair

• Citation: 828 P.2d 705,2 Cal.4th 629,7 Cal.Rptr.2d 564
• Decision Date: 07 May 1992
• Docket Number: No. S004789,S004789
• Parties: , 828 P.2d 705 The PEOPLE, Plaintiff and Respondent, v. Kenneth CLAIR, Defendant and Appellant. Crim. 26423.
• Court: United States State Supreme Court (California)

Page 564

7 Cal.Rptr.2d 564

2 Cal.4th 629, 828 P.2d 705

The PEOPLE, Plaintiff and Respondent, v. Kenneth CLAIR, Defendant and Appellant.

No. S004789.

Crim. 26423.

Supreme Court of California,

In Bank.

May 7, 1992.

Rehearing Denied June 24, 1992.

John N. Hauser, San Francisco, under appointment by the Supreme Court, McCutchen, Doyle, Brown & Enersen, Leslie G. Landau, Jordan C. Budd, Rhonda L. Donato, Roberta M. Harding and Anne M. Deibert, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Robert M. Foster and Carl H. Horst, Deputy Attys. Gen., 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 August 15, 1985, the District Attorney of Orange County, on behalf of the People, filed an information in the superior court against defendant Kenneth Clair.

Count I charged that on or about November 15, 1984, defendant murdered Linda Faye Rodgers. (Pen.Code, § 187.)

Count II charged that on or about that same date, defendant committed burglary by entering a residence occupied by Kai and Margaret Henriksen at 1721 West Wilshire Avenue in Santa Ana with intent to commit a theft. (Pen.Code, § 459.)

Count III charged that on or about November 7, 1984, defendant committed burglary by entering the same residence with the same intent. (Pen.Code, § 459.)

Count IV charged that on or about January 14, 1985, defendant committed burglary (Pen.Code, § 459) by entering a residence occupied by Murline Owens at 800 South Sullivan Street in Santa Ana with intent to commit assault with a deadly weapon (id., § 245, subd. (a)) and/or rape (id., § 261).

It was separately alleged that defendant murdered Rodgers under the special circumstances of felony-murder-burglary (Pen.Code, § 190.2, subd. (a)(17)(vii)), torture murder (id., § 190.2, subd. (a)(18)), and felony-murder-rape (id., § 190.2, subd. (a)(17)(iii)).

It was further alleged that on or about September 9, 1976, defendant had been convicted in the State of Louisiana of the serious felony of armed robbery in violation of that state's laws. (Pen.Code, §§ 667, subd. (a), 1192.7, subd. (c).)

Defendant pleaded not guilty to the charges and denied the allegations. He subsequently moved the court to set aside the information under Penal Code section 995. He argued, inter alia, that there was insufficient evidence as to the Owens burglary and the torture-murder special circumstance. On the People's concession, the court dismissed the former and struck the latter.

On June 22, 1987, the district attorney filed the first amended information, on which this case was tried. Count I charged the Rodgers murder; count II, the Henriksen burglary on November 15, 1984; and count III, the Henriksen burglary on November 7, 1984. The special circumstances of felony-murder-burglary and felony-murder-rape were alleged; also alleged was the prior serious-felony conviction in Louisiana.

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

Trial was by jury. The panel returned verdicts finding defendant guilty as charged of the single count of murder and both counts of burglary, determining each offense to be in the first degree; it also rendered a finding of true on the felony-murder-burglary special-circumstance allegation, and a finding of not true on the felony-murder-rape special-circumstance allegation. It subsequently returned a verdict of death. Defendant having earlier waived a jury trial on the prior serious-felony conviction allegation in favor of a bench trial, the court impliedly rendered a finding of true. It proceeded to enter judgment as follows: the sentence of death was imposed for the murder; sentence as to the Henriksen burglary on November 15, 1984, was stayed under Penal Code section 654; the midterm of four years in prison was imposed for the Henriksen burglary on November 7, 1984, and then stayed until execution of the penalty for the murder; and an additional term of five years in prison was imposed for the prior serious-felony conviction in Louisiana, and then stayed until execution of the penalty for the murder.

As we shall explain, we conclude that the judgment must be affirmed.

I. FACTS

A. Guilt Phase

The People introduced evidence that established the following facts.

On or about November 7, 1984, a house at 1721 West Wilshire Avenue in Santa Ana was burglarized and a number of items were stolen. Kai and Margaret Henriksen resided there with Margaret's four young children. Linda Faye Rodgers served as the Henriksens' baby sitter. She lived there as well with her own young daughter.

On the night of November 15, while the Henriksens were out, the house was again burglarized. Rodgers was murdered, having been beaten, stabbed, and strangled. Her body was found supine on the bed in the master bedroom, with her hands bound behind her back, naked from the waist down, and with her legs open and a vibrator between her thighs. A number of items were stolen.

It was undisputed that defendant committed the November 7 burglary. At that time, he was squatting in a vacant house next door to the Henriksens' at 1725 West Wilshire Avenue. On November 11 he was arrested there and put in jail. In the early evening of November 15 he was released.

What was disputed was whether defendant committed the November 15 burglary and murder.

To prove that defendant was the perpetrator, the People called several witnesses and offered numerous exhibits.

Among their witnesses were Kai and Margaret Henriksen and, most prominently, Pauline Cody, nee Flores, who was defendant's lover at the time of the crimes.

Flores testified to the following matters, among others. On the night of November 15, she happened on defendant in the general vicinity of West Wilshire Avenue. Later on, he asked her to walk with him as he went to recover some "personal property," and she did so. They got to the area of the Henriksen residence and the vacant house. She knew he had squatted in the latter. Once there, he asked her to wait by a tree. He said he would be right back. He was not. After about an hour, she began to retrace the path she had taken.

Five or ten minutes later, Flores encountered defendant. He was carrying two speakers, a light blue floral blanket, and a six-pack of Budweiser beer. She asked where he had been. He said he had gone to a liquor store on a certain corner to get some beer. He did not generally drink Budweiser beer. Moreover, there was in fact no liquor store on the corner in question. Flores then asked what took him so long. He said he had "just finished beating up a woman." She did not inquire further "[b]ecause I would have got the shit beat out of me." She saw blood on the palm of his right hand. She asked where it had come from. He said he had been "fighting with somebody." Here too she did not inquire further. They walked to a church, sat on the steps, and talked for a while. They then went behind some trees on the property. He showed her some goods, including pieces of jewelry. They had sexual intercourse and went to sleep. Margaret Henriksen later testified that items including the speakers, blanket, beer, and jewelry had been stolen that night.

Among the People's exhibits were an audiotape recording and a transcript of a conversation between defendant and Flores on January 16, 1985. Unknown to him, she was by that time working as an undercover police agent. Fitted with a concealed audiotape-recording device, she met him as he was released from jail after his arrest for an unspecified offense (which was in actuality the Owens burglary). In the course of the conversation, he made a number of statements bearing on the November 15 burglary and murder. Although at one point denying involvement, several times he made what were apparently admissions--some express in his own words, others implied through his silence or equivocal response in the face of her accusations.

Defendant challenged the sufficiency of the People's evidence linking him to the November 15 burglary and murder. For example, he attacked the credibility of the witnesses and the believability of their testimony--especially with regard to Flores, whose character and statements were easily assailed. He also attempted to show that he made no admission, express or implied, during the January 16 conversation. In addition, he pointed to the absence of physical evidence placing him in the Henriksen residence. In his case, he called a single witness and presented a few exhibits. He himself did not take the stand.

B. Penalty Phase

The People presented a case in aggravation that focused on the circumstances of the murder itself and included as well two instances of other criminal activity involving force or violence and one prior felony conviction.

As to the murder, a stipulation was presented in lieu of testimony that "at the time of her death [the victim] had a mild hemiparesis of the brain as a result of congenital cerebral palsy which entailed a varying but never totally disabling of her impairment [sic ] in motor coordination and muscular development on her left side only."

One of the instances of other criminal activity involving force or violence concerned the armed robbery of Colleen Daspit and Dorothy Carboni. Daspit testified to the following matters, among others. On August 15, 1976, the two women were walking alone in the Rose Garden in City Park in New Orleans. Defendant came up. He grabbed Daspit's left arm and pointed a handgun between her eyes; he told her to move back toward some hedges, she refused, he let her go, and she began to run. He then grabbed Carboni. Daspit stopped, not wanting to abandon her companion. He then ordered, "Your purse." Carboni complied quickly. Daspit did not, frozen in her place. Carboni said,...