People v. Hernandez, No. S004559

• Court: United States State Supreme Court (California)
• Writing for the Court: ARGUELLES; LUCAS
• Citation: 47 Cal.3d 315,253 Cal.Rptr. 199
• Parties: , 763 P.2d 1289 The PEOPLE, Plaintiff and Respondent, v. Francis Gerard HERNANDEZ, Defendant and Appellant. Crim. 23197.
• Docket Number: No. S004559
• Decision Date: 28 November 1988

Page 199

253 Cal.Rptr. 199 47 Cal.3d 315, 763 P.2d 1289 The PEOPLE, Plaintiff and Respondent,
v.
Francis Gerard HERNANDEZ, Defendant and Appellant. Crim. 23197. No. S004559. Supreme Court of California,
In Bank. Nov. 28, 1988.
Rehearing Denied Jan. 26, 1989.

[47 Cal.3d 327]

Page 204

[763 P.2d 1294] Edward M. Medvene, under appointment by the Supreme Court, Daniel M. Petrocelli, Douglas J. Del Tondo, Ronald A. DiNicola and Mitchell, Silberberg & Knupp, Los Angeles, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., William R. Weisman, Mark Alan Hart, Carol Wendelin Pollack and Robert S. Henry, Deputy Attys. Gen., for plaintiff and respondent.

ARGUELLES, Justice.

This case involves the forcible rape, sodomy, and murder of two young women, Edna Bristol and Kathleen Ryan, in early 1981. For these crimes, defendant was convicted by a jury of two counts of first degree murder (Pen.Code, §§ 187, 189), ¹ two counts of forcible rape ( § 261, subd. (2)), and two counts of forcible sodomy ( § 286, subd. (c)). The jury also found true special circumstance allegations that each murder occurred in the commission of rape ( § 190.2, subd. (a)(17)(iii)) and sodomy ( § 190.2, subd. (a)(17)(iv)) and that defendant was, in this proceeding, convicted of more than one murder ( § 190.2, subd. (a)(3)). At the penalty phase, the jury returned a sentence of death as to each murder. This appeal is automatic. ( § 1239.) We conclude that one multiple-murder special circumstance should be vacated but the judgment should be affirmed in all other respects.

47 Cal.3d 328

GUILT PHASE

FACTS

A. Discovery of the Murders

The nude body of 21-year-old Edna Bristol (hereafter Bristol) was discovered in a grassy area near Marshall Junior High in the City of Long Beach around 6 a.m. on January 29, 1981. An autopsy revealed the victim had died of asphyxiation due to suffocation or strangulation. There were ligature marks on both wrists and ankles where the victim had been taped. Contusions and abrasions to the lips were consistent with the victim being struck in the mouth. There was bruising and tearing in the anal and vaginal areas consistent with premortem intrusion of a large object such [763 P.2d 1295] as a baseball bat, and these areas produced a bloody discharge. Marks to the right breast had occurred after death and were consistent with a human bite. The pubic hair had been burned. Cigarette butts were found at the scene and further examination by a forensic criminalist revealed traces of elements consistent with the flint of a cigarette lighter. Twenty-three small turquoise rubber bands were found on the ground near the body.

Five days later, on February 3, 1981, around 5:45 a.m., the nude body of 16-year-old Kathy Ryan (hereafter Ryan) was found in a grassy area near Millikan High School in Long Beach. Both Marshall Junior High and Millikan High School are near El Dorado Park. Autopsy revealed that Ryan, like Bristol, had died of asphyxiation possibly due to strangulation. Damage to Ryan's lips and teeth suggested a blow to the mouth; there was a cut on the chin; and her nose had been fractured. Bruising and tearing in the anal and vaginal areas, as extreme and unusual as with the other victim, suggested a large object such as a baseball bat had, before death, been repetitively forced into each of these areas causing bleeding. A large abrasion over the spine suggested the body had been dragged. Postmortem wounds included bite marks to both breasts and five horizontal

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and three vertical slashes to the abdomen in a tic-tac-toe pattern. Ryan's pubic hair had been burned and forensic analysis suggested some flammable material had been used. Cigarette butts, a burnt match, an empty match book and some black electrician's tape were found near the victim. A search of the surrounding area yielded various items of clothing the victim had apparently worn when last seen alive.

B. Information Leading to Defendant's Arrest

Ryan had lived at home with her stepmother. When Ryan's stepmother awoke around 5:30 a.m. on February 3, she found the living room lights still [47 Cal.3d 329] on and the drapes and sliding glass door open. The victim's bed had not been slept in and her bedroom window was open and missing its screen. She had last seen Ryan the night before. Around 8 p.m., the victim had left with a girlfriend, and she had returned home around 10 p.m. to get her pool cue, saying she was going out to play pool.

As Ryan's stepmother left for work, she noticed the pool cue and the victim's jacket were on the living room floor. The victim's purse was outside on the ground and items from the purse were spilled out. Ryan's stepmother drove her son to Millikan High School and noticed police activity near the school. When she arrived at work, a friend told her a girl had been killed, and she "just knew" it was Ryan. She contacted police and ultimately identified the murder victim as her stepdaughter based on photographs, identification of the discarded items of clothing police had found in the area, and a broken necklace the girl had worn.

When police began to piece together what Ryan had been doing the night of her murder, they learned that a group of young people regularly met in El Dorado Park and that on the night of February 2, the group included defendant and Ryan. A girlfriend named Tracie Barr had picked up Ryan at her home that evening, and they had driven to El Dorado Park where they met defendant and other regulars including Chris Jackson, Bob Beeler, and Diva Sarzynski. Later they decided to go to a local pizza parlor to play pool. Barr drove Ryan back to her house to retrieve her pool cue, and they then went to Big John's Pizza Parlor, stopping at a liquor store along the way to pick up defendant who had parked his van there.

During the evening of playing pool and drinking beer, it was evident to several in the group that defendant was focusing considerable unwelcome attention on Ryan. He tried to put his arms around her, pinched her in the buttocks and put his hands on her hips, but she kept pushing him away. He apparently was also aggressive with other young women, pinching Sarzynski and Barr and grabbing Barr's breast. Chris Jackson tried to intervene, but at one point defendant grabbed Jackson by the throat and pushed him away. [763 P.2d 1296] Finally, Jackson persuaded defendant to go outside and smoke some marijuana.

Outside, defendant told Jackson he wanted to make a "sandwich" out of Ryan; he wanted to "fuck her in the butt until she screams." He told Jackson he would "get some tonight or tomorrow night." ² The party ultimately broke up around 1 or 1:30 a.m., on February 3; and departing in [47 Cal.3d 330] Barr's car were defendant, the victim, Beeler, and Sarzynski. First they dropped defendant off at the liquor store where he had left his van. They then drove toward Ryan's home, and Barr and Sarzynski noticed defendant followed them for a way in his van before turning around. Ryan seemed a little nervous, and witnesses told somewhat inconsistent stories as to whether she was anxious to get home to avoid seeing defendant or whether she anticipated defendant was coming to her house and planned to meet him.

C. Defendant's Arrest

After speaking to the young people who had been at El Dorado Park and Big John's

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Pizza Parlor, attention focused on finding defendant. From the young people, police had a description of defendant's old, dark green Dodge van and obtained its license number. This same van had been in an incident only a few months before in September 1980 when someone driving a van of this description had tried to run another person down. Defendant was stopped about a mile from El Dorado Park when driving away from the scene of the incident, but the victim was unable to positively identify him as the assailant.

Defendant had been the subject of a second police contact at 9:45 p.m. on January 26, 1981, only days before the murder of Bristol, when police officers proceeded to El Dorado Park to check for possible narcotics and alcohol violations which were apparently frequent in that area. Defendant was standing with his girlfriend and another person, and police smelled burning marijuana. As one of defendant's companions had an outstanding warrant, that person was arrested and searched, and marijuana was found.

Police were of the opinion that Bristol and Ryan had not been killed at the locations where their bodies were found but had been transported there after the killings. Police had found burnt orange or rust colored carpet fibers near Ryan's body and in her pubic hair. They were told that defendant's van was carpeted. Jackson admitted having given defendant a knife as a gift, and officers were aware of the tic-tac-toe cuts on Ryan's body.

In the early morning hours of February 4, 1981, officers went to defendant's residence and saw his van. Looking through the van's window and shining a flashlight inside, they could see a Millikan High School banner and a large number of small greenish or turquoise rubber bands on the gearshift lever. The carpeting in the van was a burnt-orange or rust-brown color.

Officers staked out the van, waiting to arrest defendant for the murder of both Bristol and Ryan; and finally around 2 p.m. that day, when he [47 Cal.3d 331] approached the van and began to open the door, defendant was arrested. While waiting for a search warrant to arrive, officers went to the nearby residence, and the door was answered by Frank Hernandez, defendant's father, who was informed of his son's arrest. He admitted officers into the residence and gave both oral and written consent to search. Nevertheless, officers awaited arrival of the warrant. A search of defendant's room in the residence yielded a set of handcuffs, two "Bic" cigarette lighters, and a broken gold necklace in which was caught a small amount of hair later found to be...