People v. Kaurish

• Decision Date: 31 December 1990
• Docket Number: No. S004640,S004640
• Parties: , 802 P.2d 278 The PEOPLE, Plaintiff and Respondent, v. Jay Charles KAURISH, Defendant and Appellant. In re Jay Charles KAURISH on Habeas Corpus. Crim. 23882, 25746.
• Court: California Supreme Court

Page 788

276 Cal.Rptr. 788

52 Cal.3d 648, 802 P.2d 278

The PEOPLE, Plaintiff and Respondent, v. Jay Charles KAURISH, Defendant and Appellant.

In re Jay Charles KAURISH on Habeas Corpus.

No. S004640.

Crim. 23882, 25746.

Supreme Court of California,

In Bank.

Dec. 31, 1990.

Rehearing Denied Feb. 27, 1991.

[52 Cal.3d 668] [802 P.2d 284] Mark E. Cutler, Cool, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Richard B. Iglehart, Chief Asst. Attys..

[802 P.2d 285] Gen., Edward T. Fogel, [52 Cal.3d 669] Asst. Atty. Gen., Gary R. Hahn, Donald E. de Nicola, Roy C. Preminger, Susan Lee Frierson and Linda C. Johnson, Deputy Attys. Gen., Office of Atty. Gen., Los Angeles, for plaintiff and respondent.

MOSK, Justice.

This is an automatic appeal from a judgment of death imposed under the 1978 death penalty law (Pen.Code, §§ 190.1 et seq., 1239, subd. (b)), consolidated with a petition for a writ of habeas corpus. ¹ Defendant was convicted of committing lewd and lascivious acts on a person under 14 years of age (§ 288), oral copulation (§ 288a), and first degree murder (§§ 187, 189). The jury found true allegations charging the use of a dangerous weapon (a knife) under sections 12022, subdivision (b), and 12022.3. It also found true the special circumstance allegation of murder in the commission of lewd and lascivious acts (§ 190.2, subd. (a)(17)(v)) and oral copulation (§ 190.2, subd. (a)(17)(vi)). The jury fixed the punishment at death, and the trial court entered judgment accordingly.

Because we find no reversible error, we affirm the judgment in its entirety and deny the petition for habeas corpus.

I. FACTS

A. Guilt Phase

Defendant was the stepfather of the 12-year-old victim, Monique. She was found murdered in her apartment at 5 a.m. on March 7, 1982. Defendant had attended a party in the apartment below hers, and had left about 45 minutes to an hour before the murder is believed to have taken place. Defendant was arrested when he appeared at the murder scene later that morning.

1. Prosecution Evidence

Defendant and Joan, the mother of Monique, had agreed to end their marriage in February 1982. He had left for San Francisco, but returned to Los Angeles in late February to help Joan move to a new apartment. A few days before the murder they had quarrelled, in part over his right to make decisions affecting her children, and he left her apartment vowing something to the effect of "you'll pay for this." There was some enmity as well between defendant and Monique.

On the night of the murder defendant attended a party in the apartment directly beneath that of Joan and Monique. During the party he was observed consuming alcohol and possibly cocaine and marijuana. He left the party sometime between 3 and 4 a.m. About 45 minutes to an hour after his departure, Laurie Snow, a resident of that apartment, heard a female voice coming from the apartment above, shouting "stop it" and "don't," and then screaming loudly and crying.

Monique had been left in that apartment by her mother and was babysitting for the child of Lynn Celestin, a friend of Joan, while the two women went dancing. Celestin checked in with Monique at approximately 3:50 a.m., and when she left she heard Monique bolt the door.

Carolene Turner, who lived in the apartment adjacent to that of Monique, testified that she heard the voices of a man and woman about the time of the murder through the common wall of the two apartments. She heard the woman call out a name beginning with the letter "R," and she thought the name had two syllables. At the time of the murder defendant was using the alias "Ron Woodland." There is conflicting evidence as to whether defendant was sometimes called "Ronnie," though apparently Monique never called him Ronnie.

At approximately 5 a.m. Joan returned home and, failing to arouse Monique to answer the door, asked Gary Eisenhauer, a neighbor, to force the door open. They found Monique lying dead on the floor, naked from the waist down, with a kitchen butcher knife in her side.

Monique's death, according to autopsy reports, was caused by stab wounds and by ligature strangulation with a wide object, probably the sweat pants found near her Detectives arrived and began their investigation. At approximately 11 a.m. defendant appeared on the scene, apparently asking what had occurred. Detective Thies had been informed by Joan that defendant was an escaped convict and that she suspected him of committing the murder. Thies noticed discolorations on defendant's shirt that appeared to be bloodstains, and fresh gouge marks on the back of his hands. He placed defendant under arrest. On further examination, defendant was found to have fresh abrasions just above the knee on the inner leg; there were, however, no tears or rips in his jeans.

[802 P.2d 286] body. Either cause would have been sufficient to kill her. Spermatozoa was found in her mouth and on her shirt, and contusions around her mouth were consistent with her having been forced to perform oral sex.

An examination of the apartment in which Monique was murdered revealed three slips of paper with names and telephone numbers written on them. It is uncontested that these notes were in defendant's handwriting. Paula Struppa, at the time a friend of defendant, testified that the two of them had gone to Joan and Monique's apartment on the morning before the murder, and that defendant had written down the telephone numbers obtained from Joan on scraps of paper. She knew that one of the numbers was that of a "Bob"; one of the three notes found in the apartment did indeed have the number of "Bob." Moreover, both Joan and Lynn Celestin testified that the apartment floor was clean when they had left earlier in the evening, and the notes had not been there. The prosecutor hypothesized that the notes had fallen out of defendant's pockets when he lowered his pants as he was forcing Monique to orally copulate him.

A forensic pathologist testified that the abrasions on defendant's inner leg were consistent with a struggle between defendant and victim, as defendant pulled down his pants to expose his penis and forced Monique to perform oral sex. The abrasions could have been caused by a lateral motion of Monique's head, in an attempt to resist, forcing the inner lining of defendant's pant leg to rub against his legs. The pathologist also testified that the gouge marks on defendant's left hand were consistent with marks that could have been made by the victim's nails as she attempted to free herself from her murderer's stranglehold.

Blood, semen, and saliva stains were found on defendant and the victim. These stains were analyzed according to both conventional ABO typing, and "PGM subtyping" using a technique known as electrophoresis. The evidence that emerged from these tests supported the prosecution's case in several ways.

Defendant had type A blood, with type A and H antigens present, and Monique had type B blood, with type B and H antigens present. Defendant was a "nonsecretor," that is, the antigens found in his blood did not appear in his other bodily fluids. Approximately 25 percent of the population are nonsecretors. It was not known for certain if Monique was a secretor, but analysis of what was probably her own perspiration on her shirt indicates that she was.

An analysis of the bloodstains on defendant's shirt tested positive for type B as well as type A antigens. The type B antigens could not have come from defendant, but could have come from Monique. Paula Struppa testified that when she gave the shirt to defendant, the morning before the murder, it had no bloodstains.

The presence of amylase, an enzyme found in large concentrations in saliva, was found on Monique's right nipple but not on her left one, leading the pathologist to surmise that the murderer had put his mouth on her right breast. The amylase showed no antigenic activity, indicating that it was deposited by a nonsecretor. Spermatozoa and amylase with type B and H antigens were found on the shirt that Monique was wearing. The serologist hypothesized that the murderer ejaculated semen into Monique's mouth and that she spit out a mixture of semen and saliva. The presence of these and only these antigens could be accounted for in several ways: either the The stains were also subject to electrophoretic testing and analysis by PGM subtyping. ² Electrophoresis can identify the three different types and ten subtypes of the PGM enzyme. Defendant was a "two plus one" subtype; Monique was a "one plus." The stain on Monique's shirt tested for "two plus one." A Los Angeles serologist calculated that approximately 20 percent of the population belonged to that subtype. Multiplying this proportion by the 73 percent of the male population that could have deposited the semen stain according to conventional ABO typing yielded a figure of 14.6 percent. As it seems probable that the murderer was a nonsecretor, he would also belong to a group of 5 percent of the male population who were both "two plus one" subtypes and nonsecretors (20 percent multiplied by 25 percent). Defendant belongs to this group.

[802 P.2d 287] saliva belonged to Monique and the sperm from a nonsecretor, or the sperm came from a type B or type O secretor. It could therefore have been deposited by 73 to 74 percent of the male population.

2. Defense Evidence

Dr. Marvin Rappaport, a dermatologist, testified that he examined photographs of defendant's leg injuries taken shortly after defendant's arrest and, on the basis of their coloration, estimated they were probably three to seven days old. He had no definite opinion as to cause of the injuries, but said they were inconsistent with the injuries that would have resulted if defendant had fallen on his knees on a hard surface.

Dr. Benjamin Grunbaum testified as to the unreliability of conventional electrophoresis to perform PGM subtyping,...