People v. Pensinger, s. S004466

• Citation: 278 Cal.Rptr. 640,52 Cal.3d 1210,805 P.2d 899
• Decision Date: 28 February 1991
• Docket Number: S009489,Nos. S004466,s. S004466
• Court: United States State Supreme Court (California)
• Parties: , 805 P.2d 899 The PEOPLE, Plaintiff and Respondent, v. Brett Patrick PENSINGER, Defendant and Appellant. In re Brett Patrick PENSINGER on Habeas Corpus. Crim. 22808, 24569.

Page 640

278 Cal.Rptr. 640

52 Cal.3d 1210, 805 P.2d 899

The PEOPLE, Plaintiff and Respondent, v. Brett Patrick PENSINGER, Defendant and Appellant In re Brett Patrick PENSINGER on Habeas Corpus.

Nos. S004466, S009489.

Crim. 22808, 24569.

Supreme Court of California In Bank.

Feb. 28, 1991.

As Modified on Denial of Rehearing

April 24, 1991.

Marvin F. Friedman and Louis M. Natali, under appointments by the Supreme Court, and Juliana Marciel, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White and Richard B. Iglehart, Chief Asst. Attys. Gen., Harley D. Mayfield, Asst. Atty. Gen., Steven H. Zeigen, Jay M. Bloom, Frederick R. Millar, Jr., and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

BROUSSARD, Associate Justice.

Defendant Brett Patrick Pensinger was convicted of the first degree murder of Michelle Melander, and the jury found true special circumstance allegations that the murder was committed in the course of a kidnapping and that the murder was intentional and involved the infliction of torture. The jury found not true allegations that the murder was committed during the commission of a lewd act on a child under the age of 14 and that the murder was committed in the course of an oral copulation in violation of Penal Code section 288a. Defendant was also convicted of kidnapping Michelle Melander and Michael Melander, Jr. He was acquitted of committing a lewd act, or oral copulation in violation of Penal Code section 288a, on Michelle Melander. The jury fixed the penalty at death, and this appeal is automatic.

We affirm defendant's convictions and affirm the special circumstance finding as to the allegation of a murder in the course of a kidnapping. We reverse the torture- murder special-circumstance finding, but affirm the penalty determination.

I. SUMMARY OF FACTS

On July 31, 1981, defendant left his Orange County, California home and went on an errand in his uncle Thomas Meyer's pickup truck from which he never returned. On August 4, 1981, defendant turned up in Parker, Arizona. He went to the Silver Saddle bar in midafternoon, and met Vickie and Michael Melander, who had been there drinking since noon. Defendant introduced himself as Panama Red, and said his real name was Don Donovan. He drank and played pool with the Melanders. At about 7 p.m., Vickie said she had to go check on her children who were staying with a friend. Defendant drove her to the Williams home, and Vickie introduced defendant as Panama. Defendant and Vickie put Michael, Jr., five, and Michelle, five months, into the truck with them and drove off, around 7:40 p.m. They drove about 10 minutes, then stopped at the Turtle Barn bar in Parker. Vickie and defendant went in for a beer, leaving the children unattended in the truck. While they were inside, Michael, Jr., found defendant's rifle and pointed it at a man in the Turtle Barn parking lot, who confiscated it. When Vickie came out to check on the children, Michael, Jr., told her that a man had stolen Panama's gun. She told defendant, and she said he became enraged, so much so that she became afraid of him and ran off down the street. Vickie said that defendant drove after her and persuaded her to get back in the truck. They went to the Silver Saddle, where Vickie again left the children unattended in the truck, and reported to her husband that defendant and she were going to the sheriff's substation to report the theft of the gun. Defendant apparently had a beer while the Melanders talked. Some witnesses said the Melanders argued; none reported that defendant acted violent or angry.

Vickie and defendant, still with the children in the truck, arrived at the sheriff's substation about 8:20 p.m. Vickie went into the station, expecting defendant to follow. She reported the theft; the sheriffs said it was a local police matter, and called the Parker police for her. She looked out and noticed that the truck was gone, but was not concerned, assuming that defendant was either looking for his gun or was back at the Silver Saddle. When the local police arrived, she reported that her own gun had been stolen; then, when she was unable to describe the weapon, she admitted that it was actually someone else's gun. The police drove her back to the Silver Saddle about 9 o'clock. When she realized that her children were still unaccounted for, she became concerned.

A customer and an employee of the PDQ market in Parker testified that a tall young man in a cowboy hat came into the store sometime after 8 o'clock on August 4, looking for someone who had stolen a rifle out of his truck when his wife and five-year-old child were in it. He was beside himself with rage, and said that if the person who stole the gun came in and tried to use it in a robbery of the store, they had his permission to grab the gun and "blow their head off." The store employee saw the man get into a light blue pickup and drive off. The employee saw no one else in the truck.

Michael, Jr., confirmed that the man he knew as Panama came with his mother to pick him and his sister up at the Williams house, that they all drove off in the man's light blue pickup, that they stopped at the Turtle Barn, that his mother and Panama went in, that he pointed Panama's rifle at a man in the parking lot, that the man took the gun, that when his mother told Panama this, Panama "hit the wall" and his mother ran off, that Panama got his mother to get back in the truck, and that they went to the sheriff's substation where his mother went in. Michael, Jr., said that Panama drove off, and when they got near the Parker Dam, Panama said that there was a cop following him and that Michael, Jr., should get out and wait until Panama came back for him. The boy did. After a while he started to hitchhike. He did not recall stopping at the PDQ market, and he did not see Panama hit his sister in the truck. He misidentified a photo of another man as Panama, was unable to identify defendant, but did identify a picture of defendant's truck. He said Panama did not hit him, and that Michelle was crying as Panama drove off. He was certain that it was the same man who picked him up at the Williams home, who drove off with him and his sister and left him by Parker Dam.

A couple picked Michael, Jr., up about 9:30 p.m. near the Parker Dam, on the California side of the dam. He did not seem upset, but said that a man whose name he did not know had his little sister and had driven off with her in his pickup. They called the sheriff, and waited in a restaurant. When the sheriff came in, the couple said the boy's first words were, "Where's Panama?" Michael, Jr., told the sheriff that Panama had taken him and Michelle from in front of the substation, that Panama had taken him to his trailer and that Panama then had dropped him off on the road, telling him to wait.

Michelle's body was discovered six days later on August 10, 1981, in the Black Meadows Landing dump in California, some nine miles from where Michael, Jr., was found. The body had many injuries, including a crushing injury to the skull which definitely occurred before death. Depending on the type of brain injury suffered, the child could have lived from two to twenty minutes, but no more.

There was also a bruise above and to the left of the left eye, caused by pressure from a smooth surface, which occurred while there was good circulation of blood. The collarbone was fractured in two places, and three front left ribs were broken and pressed in so that they seriously jeopardized breathing and probably punctured the lungs. A single crushing blow probably caused these injuries, and they happened when the child was alive and had good circulation, before she went into shock. The pathologist had no basis for determining whether the head or the rib injuries came first. Associated with the rib injury was a bruise involving scraping and tearing of the skin from the left nipple to the left armpit; this also occurred before death.

The left upper arm was fractured near the elbow and nearby there was a bruise. These injuries could have been caused by impact from a blunt object, or by holding the child by the arm and twisting the arm while flinging the body down. They happened before death and before the child went into shock. In addition, there were many small, irregular scrapes, bruises and tearing of the skin along the left outer forearm, inflicted while there was good circulation and blood pressure, before shock. There was also a large bruise on the left thigh which occurred before death.

These were the injuries which occurred before death. There was considerable further injury which may or may not have occurred after death. Seven right back ribs and six back left ribs were broken and pressed in. This injury happened at one blow. There was a long incision from the ribs to the groin on a slightly leftward diagonal. It appeared that the uterus had been removed through this opening. There were two small incisions over the left groin. There was an oval incision between the legs; the vagina and anus had been removed. It was impossible to determine conclusively whether there had been any sexual assault.

Defendant was arrested in Midland, Texas, in mid-August. He had his uncle's truck; it was dirty, dented, and stripped of valuables. In it were a box of blades for a utility knife and a crumpled cowboy hat. There was blood on the front fender, but it could not be determined whether this was human or animal blood. The fabric and seat covers in the truck were examined, and there was no sign of blood or hair on them. Defendant had bloodstains on his pants, shirt, belt and boots when arrested, but they were not typed or compared to his or the victim's blood.

Defendant was extradited from Texas to Oregon, where he was housed in a Washington County jail with one Tony Krossman, who had been a paid informant for the Federal Bureau of Investigation, the Drug Enforcement...