People v. Deriso

• Decision Date: 20 November 1963
• Docket Number: Cr. 1903
• Citation: 222 Cal.App.2d 478,35 Cal.Rptr. 134
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Clytus M. DERISO, Defendant and Appellant.

Page 134

35 Cal.Rptr. 134

222 Cal.App.2d 478

The PEOPLE of the State of California, Plaintiff and Respondent, v. Clytus M. DERISO, Defendant and Appellant.

Cr. 1903.

District Court of Appeal, Fourth District, California.

Nov. 20, 1963.

Rehearing Denied Dec. 13, 1963.

Hearing Denied Jan. 7, 1964.

Gould & Aronson, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

GRIFFIN, Presiding Justice.

Defendant-appellant was charged with murdering (Pen.Code, § 187) Richard (Rick) Adams (count one) and James Benesh (count two) on July 6, 1962. He entered a plea of not guilty to both counts. A jury found him guilty of first degree murder on the first count and second degree murder on the second count, and fixed the penalty on the first count at life imprisonment. Defendant appeals from the judgment and verdict and from the order denying his motion for a rew trial.

The murders were committed on July 6, 1962, at 6:30 a. m., in a pickup camper parked behind the Longbranch Bar in Garden Grove, California. Bob Adams, the father of one victim, Rick Adams, heard noises coming from the camper, which was parked about 30 feet away from his cottage near the Longbranch Bar. Mr. Adams hurriedly dressed and ran to the camper. Then he heard the voice of his son, Rick, appealing for mercy. Mr. Adams attempted to open the door of the camper but discovered that it was locked. With the help of another son, Tom, he forced the door open. The observed the other victim, James Benesh, lying face down on the floor of the camper covered with blood. There was a visible gash six inches long in his arm. The defendant was standing astride the body of Benesh, spatted with blood from his neck to his shoes. Defendant stepped out of the camper and asked for help, saying that he had cut his finger.

Bob Adams asked, 'Where is Rick?' and defendant replied, 'Oh, he had to leave. * * * He went some place.' Mr. Adams then told his son, Tom, to call an ambulance and the police. Defendant went to the washroom in the Longbranch Bar. Shortly afterward, Bob Adams went into the washroom to look for defendant and found that he had disappeared.

The police arrived at the scene a few minutes later and observed the body of James Benesh in the camper. While examining the camper, they located the body of Rick Adams lying in an upper bunk in the front portion of the camper. While the police were restraining Bob Adams and Tom Adams from entering the camper, defendant reappeared and said that he was sorry that he ran away.

Officer Antoine of the Garden Grove Police Department then searched defendant and asked him what had happened. Defendant said that he had come to the camper that morning to recover some money that Rick Adams owed him and also to awaken Mr. Adams for a job appointment. He said that he arrived on the scene and found Rick Adams in his bank in the camper bleeding profusely, and at that time he had gotten some towels and attempted to stop the flow of blood, but soon realized that Rick Adams was dead or dying. The defendant related that then Mr. Benesh confronted him and attacked him with a knife and that he had gotten the knife away from Mr. Benesh and had killed him with it.

Later, at the police station, the defendant was again interrogated and at this time he said that he had come to the camper about 6:15 in the morning and that Mr. Benesh had opened the door and admitted him. Defendant said that he asked Benesh where Rick Adams was and was told that Rick had gone. Defendant said that Benesh then stated that Rick was ill in bed in the camper. Defendant claimed that he then observed blood on the curtains screening the bed from the main portion of the camper and that he looked behined the curtains and saw Adams there with an open would in his neck. He did not mention attempting to stanch the flow of blood from the wound. He said that at that time he turned around and observed Benesh charging at him with a knife in his hand. The defendant said that Benesh accused him of misconduct with Mrs. Benesh. Defendant claimed that he blocked the knife thrust and knocked Benesh down. Defendant said that Benesh then asked him to talk the situation over and defendant agreed. They began to clean up the blood in the camper and then defendant attempted to leave. Benesh attacked defendant again, and at this time defendant got the knife away from Benesh. Benesh reached for the door of a cupboard and defendant, thinking that he was attempting to get a gun, stabbed him in the back. Defendant said that he then dropped the knife and that Benesh picked it up, but defendant knocked Benesh to the floor with his foot. Defendant asserted that at this time he opened the camper door for Bob Adams. When questioned about the whereabouts of the knife, defendant said that he last observed it in Benesh's right hand as he was in the camper.

The autopsy surgeon found a number of wounds caused by a knife in the body of James Benesh, but the wound that caused his death was a large stab wound which began in the back and ended in the left chest. It was the surgeon's opinion that only a powerful individual could have caused such a would. The surgeon testified that Rick Adams' death was caused by three cuts in his throat, all of which transected the major arteries and structures of the neck. The surgeon testified that these wounds would also have required a great deal of force. Defendant weighed 296 pounds. The surgeon indicated that both deaths occurred about the same time. It was stipulated that Rick Adams had blood type 'B,' James Benesh had blood type 'A,' and defendant had blood type 'O.'

An expert criminalist of the Orange County Sheriff's Office testified that he examined defendant's clothing and type the blood marks found thereon. He found defendant's blood and that of Benesh on defendant's shoes and the blood of both victims on the pants, shirt and jacket. He found the blood of the victim Adams sprayed on defendant's shirt and testified that the spray was so fine that it was his opinion that it had been sprayed under pressure. There were also smudges and smears of Adams' blood on the shirt and there were matching spots or stains of Adams' blood on the pants and jacket. The blood of Adams was found in spots and in spurt marks on the walls and ceiling of the camper above the bunk in which Adams' body was found. Defendant's blood was found on the curtain that separated the camper and on a bath towel in the camper. The blood of Benesh was found on the kitchen table in the camper and in the area where his body was found.

Eight days after the murder, a knife was found in a storm drain near the Longbranch Bar. It was stipulated that this was the knife used by defendant. Defendant testified that he threw the knife away in the location where it was found. The police located a sales slip in defendant's car from Leonard's store. It was stipulated at the trial that the knife was purchased by defendant at the store between 6:00 p. m. and 9:30 p. m. on the night before the murder.

A former bartender in the Longbranch said that defendant told him that he was in love with Mary Benesh and wanted to get rid of Benesh. Defendant's roommate testified that defendant claimed that Benesh had threatened him and defendant said, 'Who does he think he is, threatening me, I could kill him first.' About 3:00 a. m. on July 6, three hours before the killings, defendant had breakfast with three men. He paid for the breakfast for the four, saying that it would probably be his last chance.

At the trial, defendant testified that he bought the knife at the request of Rick Adams who needed it to make some repairs in the bar which Adams was operating. He said that he gave the knife to Adams, who put it in the camper. He testified that on the morning in question he went to the camper to awaken Adams and upon entering the camper discovered Adams' body, was attacked by Benesh, defendant himself and stabbed Benesh. He said that he did not know who killed Rick Adams. Defendant claimed that he told Mr. Adams that Rick had gone because he did not want Mr. Adams to see Rick's body. He said that after leaving the restroom in the Long-branch Bar, he went to a nearby intersection and threw the knife away and then returned to the scene where he was taken into custody.

Defendant's first contention is that the evidence is largely circumstantial and it is not sufficient to support the verdict of the jury. Furthermore, it is argued that the defendant consistently maintained in his statements to the police that he had not killed Rick Adams and that he killed Mr. Benesh in self-defense. Upon close examination, however, it appears that defendant's statements contained considerable equivocation and that sometimes he changed his story to make it conform to what the police had discovered to be the truth. For example, upon alighting from the camper, he responded to Bob Adams' question by saying that Rick Adams was not there. Later, he tried to explain this deception by saying that he wished to spare Mr. Adams the discovery of his son's death. But this equivocation won him sufficient freedom to enable him to conceal the murder weapon. He then returned to the scene and during the first interrogation said that he last saw the murder weapon in the camper alongside the body of Benesh. After the police had discovered the knife and that defendant had purchased the knife the night before the murders, defendant admitted the purchase and the concealment. He never explained his earlier equivocations in this regard. Furthermore, defendant's earlier stories contained no explanation to how the fine spray of blood from Richard Adams' body got all over his clothing. At the trial, this damaging evidence was met with the explanation that Benesh had somehow snapped a bloody towel in defendant's direction and this spattered...