People v. Karis, s. 22786

• Citation: 250 Cal.Rptr. 659,46 Cal.3d 612,758 P.2d 1189
• Decision Date: 29 August 1988
• Docket Number: 25929,Nos. 22786,s. 22786
• Court: United States State Supreme Court (California)
• Parties: , 758 P.2d 1189 The PEOPLE, Plaintiff and Respondent, v. James Leslie KARIS, Jr., Defendant and Appellant. In re James Leslie KARIS, Jr. on Habeas Corpus. Crim.

Page 659

250 Cal.Rptr. 659

46 Cal.3d 612, 758 P.2d 1189

The PEOPLE, Plaintiff and Respondent, v. James Leslie KARIS, Jr., Defendant and Appellant.

In re James Leslie KARIS, Jr. on Habeas Corpus.

Crim. Nos. 22786, 25929.

Supreme Court of California, In Bank.

Aug. 29, 1988.

Rehearing Denied Nov. 17, 1988.

[758 P.2d 1192] Frank O. Bell, Jr., State Public Defender, under appointment by the Supreme Court, Roy M. Dahlberg and Musawwir Spiegel, Deputy State Public Defenders, Sacramento, for defendant and appellant and petitioner

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Roger E. Venturi, Edmund D. McMurray and Eddie T. Keller, Dept. of Justice, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

EAGLESON, Justice.

Defendant was convicted by a jury in the Sacramento County Superior Court of the first degree murder (Pen.Code, §§ 187, 189) ¹ of Peggy Pennington, with special circumstances of murder in the commission of kidnapping and in the immediate flight from rape ( § 190.2, subd. (a)(17)) (count I); ² the attempted murder of Patricia D. ( §§ 664/187) (count II); the kidnapping of Ms. Pennington (count III) and Ms. D. (count IV) ( § 207); and rape of Ms. D. ( § 261) (count V). He was found to have personally used a firearm in the commission of each offense ( § 12022.5); and to have intentionally inflicted great bodily injury Defendant admitted a charge that he had suffered a prior conviction for rape in 1976 in Santa Clara County and had served a term of imprisonment for that offense. ( §§ 667.5, subd. (a), and 667.6, subd. (a).) The court thenfound true a second allegation of prior conviction, finding that defendant had been convicted of another rape in Orange County in 1971, and had also served a prison term for that offense. ³ After denying the motion for modification of the death penalty verdict ( § 190.4), the court imposed the judgment of death, and sentenced defendant to aggregate terms of 41 years for the other offenses and enhancement allegations.

in the commission of the attempted murder and kidnapping offenses ( § 12022.7). The jury returned a verdict of death for the murder.

This appeal is automatic. ( § 1239.)

Defendant also petitions for writ of habeas corpus asserting that his trial counsel failed to provide constitutionally adequate representation. Because defendant makes the same claim in his appeal, we issued an order to show cause and consider the habeas corpus petition in conjunction with the appeal. We conclude that defendant's assertions of error at the guilt phase of the trial lack merit, that no prejudicial error occurred thereafter, and that he has failed to establish a basis for habeas corpus relief. Accordingly we shall affirm the judgment in its entirety and deny the petition for writ of habeas corpus.

I

A. Guilt Phase Evidence: The Prosecution Case.

The offenses of which defendant was convicted occurred on July 8, 1981, when the victims were taking a brief walk during a midmorning break from their jobs at the El Dorado County Welfare Department in Placerville. About 10:30 a.m. they were accosted by a man, identified by Ms. D. as defendant, who jumped out of a car and ordered them at gunpoint to get into the car. They complied, entering the back seat. Defendant drove for some distance, from Highway 50, Coloma Road, and Highway 49, onto Highway 193. The car left Highway 193 and continued for a mile and one-half on Rock Creek Road to a point where defendant drove off the road, stopped the car, and ordered the two women to walk down a dirt path to an overgrown creek bed. They followed the creek bed to an area where defendant ordered the women to disrobe. A car driving at normal speed from the site of the abduction would reach the place where the victims left the car, a distance of 5.9 miles from the welfare department, in 15 minutes. The walk up the creek bed to the location of the shooting would take between five and ten minutes.

At defendant's direction, Ms. D. tied the hands of Ms. Pennington with the latter's hose. Defendant tightened the bonds, and then gagged Ms. Pennington with a bandana. He then raped Ms. D., after which he untied Ms. Pennington, and ordered the women to continue walking along the creek bed. When they reached a large hole, defendant ordered both victims to get into the hole. In reply to Ms. D.'s plea that she not be killed, defendant stated that he had to kill them so that he would not be killed.

The women turned away from defendant at his orders, after which Ms. D. heard five shots. She felt a numbness in her neck after the second shot and felt the impact of a second bullet in her neck with the fourth shot. She feigned death, lying down, and heard defendant throwing rocks on Ms. Pennington and on her own head. Then, after hearing defendant leave and waiting for from five to ten minutes, Ms. D. made her way back to Rock Creek Road where a gravel-truck driver drove her to the highway The first driver remained at the intersection of the highway and Rock Creek Road to guide emergency personnel. He and a deputy sheriff who arrived within 15 minutes were able to follow the trail left by Ms. D. By the time they had located Ms. Pennington, they had been joined by paramedics and firemen. A paramedic who examined Ms. Pennington at the scene determined that she was dead. A subsequent examination established that the cause of death was one of three bullet wounds she suffered and a fracture through the base of her skull. ⁴

and flagged down a car whose driver took her on to Chili Bar where the sheriff and medical help were summoned.

Ms. D. had suffered a potentially life-threatening bullet wound to her neck and an abrasion on the back of her skull. She was taken to a local hospital and thereafter transferred to the Sacramento Medical Center. Her first description of her assailant, to the gravel truck driver who picked her up, was a man with long dark hair and a green car. Although the truck driver did not recall her so stating, the deputy sheriff who met him testified that she had stated the assailant was Mexican. ⁵ One or two days after the shooting, after tubes had been removed from her throat, Ms. D. was able to speak to a detective. At that time she described the assailant as having dark skin or olive complexion, possibly Indian or Italian, with a "Fu Manchu" style moustache, a two-day growth of beard, and shoulder length hair; and as being about five feet nine inches to five feet ten inches tall, of husky or stocky build. At trial she testified that she had told the officer that she did not know his nationality, but the man "could be Mexican ... could be Indian, Italian, there is--just dark skinned, he had dark hair." On July 14, 1981, without any knowledge that a suspect's photo was included among several shown to her, and having heard or seen nothing in the media or any other source regarding identifying features of a suspect, Ms. D. positively identified a 1976 photo of defendant, noting in particular his eyes. She positively identified defendant at the preliminary hearing and at trial, although he had shaved, cut his hair, and wore glasses. In the interim she had identified several other photos of defendant, pointing out differences in the hair length, moustache, and beard growth.

Analysis of a stain on Ms. D.'s panties indicated that seminal fluid was present. Further analysis established that it came from a person having a PGM enzyme type 1 + 2 +, which is common to approximately 23 percent of the population, including defendant, and came from a "non-secretor" who does not exhibit markers of his ABO (blood) type in other body fluids. Defendant is a nonsecretor. The percentage of nonsecretors who produce type 1 + 2 + PGM in the population is approximately 4 percent. One out of four persons in the population could have been the donor of the seminal fluid found in the stain. Analysis of the blood and saliva of Ms. D.'s husband eliminated him as the source of the seminal fluid.

Ms. D. had described the car in which she had been abducted as an old, large car of American make, two-door, and green in color. On July 8, defendant's parole agent told local police that defendant drove a 1975 Chevrolet Impala, license 807 PSF. That evening, having failed to locate the car at defendant's residence, Deputy Sheriff Allen, waiting near the entrance to defendant's driveway, observed a two-door Chevrolet, partial license 807, approach. The driver was defendant's half-brother, Kevin Jones. Later that night Ms. D. was asked to describe any objects she remembered seeing in the car. On the morning of July 9, 1981, neither defendant nor the car was at defendant's residence, the home he shared with his mother and half-brother on a former boys' ranch in El Dorado County. The car was located there in the late afternoon Some time after 8 p.m. on July 8, 1981, Kevin Jones and his girlfriend Dana Skelton, returning from a visit to her grandmother in Kelsey, drove to the house. Dana testified that after Kevin stopped to speak to a deputy sheriff who was parked at the foot of the driveway about a quarter of a mile from the house, he drove on up to the house and spoke to his mother. He then returned to the car and told Dana that he had to take her home, and that they had to put defendant in the trunk because defendant was dealing in cocaine. After leaving the house, Kevin stopped, Dana met defendant, and defendant joined them in the passenger compartment of the car. Defendant had a moustache and a little bit of beard at the time when Dana met him. They drove to the home where Dana lived with her grandmother who gave permission for defendant and Kevin to remain overnight. On the next morning, although Kevin had promised Dana when she awoke at 6:30 a.m. that he would drive her to work, he told her he could not do so because his brother had to leave. The two men left 10 minutes later.

however. An officer observed two pillows and a ...