People v. Molano

Decision Date27 June 2019
Docket NumberS161399
CourtCalifornia Supreme Court
Parties The PEOPLE, Plaintiff and Respondent, v. Carl Edward MOLANO, Defendant and Appellant.

Wesley A. Van Winkle, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Alice B. Lustre and Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Corrigan, J.

Carl Edward Molano was convicted by jury of first degree murder, with the special circumstance that the murder was committed during a rape.1 After he waived jury on prior conviction allegations for spousal abuse with great bodily injury and two rapes, the court found the allegations true. After the jury returned a verdict of death, the court imposed that sentence. This appeal is automatic. We affirm the judgment in full.

I. BACKGROUND
A. Guilt Phase

On June 16, 1995, friends of Suzanne McKenna had been unable to reach her by phone and went to her cottage in Hayward. Judy Luque knocked on the front door but received no response. Peering through the blinds, she saw a heavy-set man with brown hair standing in McKenna's kitchen, wearing a blue Pendleton shirt. She yelled to her husband, Jeff, as the man left through another door. Jeff ran to the side of the cottage and saw a man walking quickly away, carrying something in his arms.

Jeff shouted at him and the man began to run. Jeff gave chase but lost sight of him. Meanwhile, Judy entered the cottage. There was garbage all over the kitchen floor and a foul smell. The living room appeared to have been ransacked. Judy called for McKenna but heard nothing. She left and a neighbor called 911. Alameda County sheriff's deputies responded, searched unsuccessfully for the fleeing suspect, then entered the cottage. A trail of fecal matter led from the living room to the bathroom, where they found McKenna's corpse. There was a Reebok shoe print on the bathroom floor.

McKenna's face was purple. A bra, panties, and a strip of leather were wrapped around her neck. Rigor mortis had set in. There was no sign of forced entry. Some fingerprints were recovered, but none were useful. The deputies found a tin of condoms, as well as an empty condom wrapper on the couch. Two tubes of personal lubricant were found nearby. Various items of McKenna's property, along with a pair of Reebok shoes, were discovered in the surrounding neighborhood.

The pathologist testified that it would have taken "a couple of minutes" for McKenna to lose consciousness when she was strangled, and another one or two minutes before she died. The greatest pressure had been applied to the front of her neck. One breast bore abrasions that could have come from a blow or a bite. There were contusions on her face, which could have been inflicted by a fist or open hand. Abrasions on her back

and buttocks were consistent with having been dragged across the floor. The vagina and anus showed no signs of trauma.2 Sperm was detected on a vaginal swab. A toxicology screen

showed a blood alcohol level of .15 percent, with 40 micrograms per liter of methamphetamine. The latter level was considerable, and reflected illicit rather than prescribed usage.

Biological samples were preserved. Strands of hair were found wrapped around the strip of leather used as the ligature. In 1995, the crime lab was not able to do DNA testing. When no leads developed, the investigation was put on hold.

In May 2001, defendant's wife Brenda brought their 13-year-old son Robert to the sheriff's station.3 Robert had recently told his mother about an encounter with defendant in 1995, when they lived near McKenna, and he wanted to tell the police about it. While he and some friends were playing outside, he had seen defendant jogging from the area of the cottages behind their apartment complex. He knew defendant socialized with residents at the cottages. About 20 minutes later, Robert and his friends heard a commotion at the crime scene and decided to go see what was happening. When he went to a storage unit to get his bicycle, he found defendant inside, sweating and holding a barbecue fork. Defendant said he would kill Robert if he told anyone where he was. Frightened, Robert returned to his friends.

Brenda also gave a statement to the police. At 7:00 a.m. on the day of the investigation, she had been getting ready for work. Defendant came into the apartment, without his shoes and appearing nervous. He said that he had been partying with a couple in one of the cottages, when the man got into an argument with the woman and choked her to death. Brenda told defendant to go to the police, but he replied that the man had threatened to kill his family if he did so. Defendant left the apartment, wearing a blue Pendleton shirt. Brenda was upset and called in sick. That afternoon, a sheriff's deputy came to the door and told her a suspect had been seen in a neighboring apartment where someone was killed. Defendant returned about three hours later, and said he had gone back to the cottage to wipe away his fingerprints. The dead woman's brother had come in and seen him. He ran because he was anxious about being seen. He changed his clothes, cut his hair, and shaved off his mustache. He and Brenda drove to the San Leandro Marina, where defendant threw the Pendleton shirt in the water. Brenda did not then suspect he was the killer.

The investigation was reopened after Brenda and Robert came forward. Judy Luque identified defendant in a photographic lineup as the man she had seen. One of the Reebok shoes found near the cottage tested positive for Brenda's DNA. Defendant's DNA was detected on the leather ligature. The analyst was unable to recover a DNA profile from the sperm sample.

Defendant gave a series of statements to investigating sheriff's deputies and the district attorney, as set out more fully below. He admitted having consensual sex with McKenna and claimed McKenna had asked him to choke her during the encounter. He tied her panties and bra around her neck but did not intend to kill her. Realizing she was dead, he panicked, dragged her body into the bathroom, and tried to clean up. He returned to McKenna's cottage the next day to make sure he hadn't left anything inside.

The prosecution introduced evidence of defendant's violence against other women. In 1982, he sexually and physically assaulted 19-year-old Anne H. Defendant visited Anne when her husband was out of town. He was friendly at first, but when Anne resisted his sexual advances, he forced himself on her, choking and threatening to kill her. He raped and sodomized her, then forced her to orally copulate him. He threatened to kill her unless she agreed he could visit again. Anne reported the assault and defendant ultimately pleaded guilty to one count of rape.

In 1987, defendant sexually assaulted 60-year-old Mabel L., whom he had known since his childhood. Late one night he appeared at her door and asked to use the bathroom. Inside, he knocked Mabel to the ground and raped her. When he drew a knife, Mabel pleaded for her life and promised not to report the attack. Defendant stabbed her in the back, knocked her down, and choked her. Mabel was able to get free and defendant fled. Mabel reported the assault. Defendant pleaded guilty to forcible rape and use of a knife.

In 1996, defendant physically assaulted his wife, Brenda, choking her to unconsciousness. She awoke to find her wrists and hands tied and a pillowcase shoved in her mouth. Defendant returned and again choked her. When she awoke a second time she was no longer bound and defendant was gone. It took six months for her voice to return to normal. Defendant subsequently pleaded guilty to corporal injury on a spouse, admitting to a probation officer: " I choked my wife. I was under the influence of crack and I got paranoid. I thought she was going to call the police."

Defendant presented no evidence in his defense at the guilt phase.

B. Penalty Phase
1. Prosecution Evidence

McKenna's brother, Ronald testified he and his children had been close to the victim. Her death devastated the entire family. McKenna had been very supportive of her sister, Patti Dutoit, who struggled with alcoholism and psychological problems. Dutoit was a recluse and McKenna was her lifeline to the outside world. Dutoit died in 1996. Ronald commented that he "lost two sisters because of this clown," referring to defendant. McKenna was estranged from her sister Lori, but had a close relationship with her 10-year-old nephew, Michael. After McKenna's death, Lori had a "breakdown" over the estrangement. It was very painful for her to explain McKenna's death to Michael.

2. Defense Evidence

Defendant's single mother raised him and his siblings. His half-brother, Ernest Molano, testified that their mother spanked them with her hand, a belt, or anything else she could grab. He felt that their mother loved them and only punished them when they deserved it. They always had food, clothing, and a roof over their heads.

Defendant's former girlfriend, Bonnie Alexis, testified he was good with young children, including his own niece and Bonnie's son. Defendant supported Bonnie and helped her during difficult times. Another friend, Evelyn Horne, said defendant was kind and had helped her leave an abusive relationship. Other family members and friends likewise described defendant as a good person and role model who was close to his family and helpful to others.

Several correctional officers testified about defendant's behavior in prison. They reported that defendant had a good attitude and work ethic and got along well with other inmates.

Psychologist Rahn Minagawa compiled defendant's social and family history. Defendant's mother had seven children by different men, and his father's identity is unknown. The mother was verbally and physically abusive. She...

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