People v. Rogers

• Decision Date: 21 August 2006
• Docket Number: No. S005502.,S005502.
• Citation: 39 Cal.4th 826,141 P.3d 135,48 Cal.Rptr.3d 1
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Keith ROGERS, Defendant and Appellant.

48 Cal.Rptr.3d 1

39 Cal.4th 826

141 P.3d 135

The PEOPLE, Plaintiff and Respondent, v. David Keith ROGERS, Defendant and Appellant.

No. S005502.

Supreme Court of California.

August 21, 2006.

A.J. Kutchins, Berkeley, under appointment by the Supreme Court; Denise Anton; Howard, Rice, Nemerovski, Canady, Falk & Rabkin and Alan W. Sparer, San Francisco, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Harry Joseph Colombo and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

A jury convicted defendant David Keith Rogers of the first degree murder of Tracie Clark and the second degree murder of Janine Benintende (Pen.Code, §§ 187, 189),¹ and found true the special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)) and the allegation that defendant personally used a handgun in the commission of each murder (§ 12022.5). At the penalty phase of the trial, the jury returned a verdict of death for the Clark murder. The trial court denied defendant's automatic motion to modify the verdict (§ 190.4, subd. (e)) and imposed the death sentence for the Clark murder and 15 years to life in prison for the Benintende murder.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. FACTUAL BACKGROUND

A. Introduction

Defendant, a Kern County Sheriff's deputy, murdered 20-year-old Janine Benintende in January 1986 and 15-year-old Tracie Clark on February 8, 1987. Both of the women had been working as prostitutes on Union Avenue in Bakersfield when they were killed. Both bodies were found in the Arvin-Edison Canal. Both had been shot multiple times with bullets from a .38-caliber weapon. Bullets recovered from the women's bodies, tire tracks and shoe prints at the scene of the Clark murder, and an eyewitness account connected defendant to the murders. Upon his arrest, and after waiving his rights to an attorney and to silence, defendant confessed to the Clark murder, but not the Benintende murder. At trial, the defense claimed defendant suffered from a mental illness resulting from extensive physical and sexual abuse as a child and, as a result, did not form the mental state or states required for the charged crimes.

At the penalty phase, the prosecution presented evidence of two additional incidents involving defendant and prostitutes. The defense presented further evidence of defendant's background and mental state.

B. Guilt phase

1. The prosecution's case

a. The killing of Janine Benintende

In January 1986, 20-year-old Janine Benintende resided in Los Angeles. Benintende had been using heroin and working as a prostitute. That month, Benintende began associating with Frank Bybee. Around January 22, 1986, Benintende appeared nervous and told her mother she needed to leave Los Angeles for a few days. She left with Bybee and went to Bakersfield.

About 7:30 or 8:00 p.m. on the day of their arrival in Bakersfield, Benintende went to Union Avenue intending to work as a prostitute. She was wearing pants, boots, and a white rabbit fur jacket. Bybee never saw Benintende again.

On February 21, 1986, a farmer noticed a body floating in the Arvin-Edison Canal near Rock Pile Road. Kern County Sheriff's Homicide Detective Mike Lage was called to the scene. He searched the area for footprints or other evidence but found nothing significant. Three days later, Dr. John E. Holloway, a forensic pathologist for the Kern County Coroner's Office, examined the body, which by that time had undergone extensive decomposition. Among the items worn by the deceased were a white rabbit fur jacket and jeans. Dr. Holloway concluded the person had been shot once near the sternum and twice in the back. There was only one entry wound in the back, just below the left shoulder blade, where both bullets apparently had entered. The gunshot wounds were the cause of death. Two bullets were retrieved from the body. The body was identified as Benintende's through fingerprint analysis.

Detective Lage contacted Benintende's relatives and friends as well as the Los Angeles Police Department, but was unable to come up with any suspects in her murder.

b. The killing of Tracie Clark

Connie Zambrano worked as a prostitute on Union Avenue in Bakersfield. In the early morning hours of February 8, 1987, Zambrano saw a girl, whom she had not seen before, enter a beige Ford pickup truck with a brown camper shell and dark bubble windows. The girl appeared to point to a motel, but the truck instead proceeded straight before stopping for a few minutes on a side street, then heading out of town. Zambrano recognized the truck and its driver, whom she had seen and spoken to many times on Union Avenue. Zambrano once had a "date" with him; he had paid her $20 for sex. At trial, Zambrano identified the driver as defendant.

On the afternoon of February 8, 1987, two farmers were shooting squirrels when they saw a "half-naked" woman's body submerged in a few feet of water in the Arvin-Edison Canal a short distance from the Hermosa Road bridge. Summoned to the scene, sheriff's investigators saw the body facedown in the water about 50 feet south of the bridge. Searching the scene, the investigators found tire tracks and shoe prints in the dirt shoulder of the eastbound lane (on the south side) of Hermosa Road, east of the canal. A Lifestyle Contour condom and condom wrapper were on the ground in that area. There was a pool of blood in the center of the eastbound lane of the road east of the bridge. A bloody shoe print was in the road near the puddle. Spots of blood led from that pool across the road to an area near a telephone pole in the dirt shoulder of the westbound lane (on the north side) of Hermosa Road. There was a "disturbance impression" in the dirt embankment east of the telephone pole. A trail of smeared blood led from the pool of blood west to the center of the bridge over the canal. There were blood spots on the bridge, on the cement curb of the canal, and on the rail of the canal.

A pathologist for the Kern County Coroner's Office examined the body and found a number of gunshot wounds. Two shots had entered the front of the chest near the right breast, penetrating the lungs. One bullet had passed through the body, while the second had lodged near the center of the back. A third shot had grazed the right side of the chest. A fourth shot, which had been fired at fairly close range, had entered the right side of the chest, passed through several organs, and lodged in the left side of the body. A fifth shot had grazed the right side of the abdomen near the waistline without entering the body cavity. A sixth shot had entered the back near the midline and lodged near the right collarbone. There also were abrasions on the buttocks that were consistent with the body being dragged after death. The pathologist concluded the victim bled to death from the multiple gunshot wounds and probably died before her body was placed in the water.

c. The investigation and defendant's confession

In an attempt to identify the body found in the canal, detectives showed photographs of it to sheriff's deputies. Sheriff's Deputy Martin Williamson showed a photograph to defendant, who said he did not recognize the person.

The following day, Deputy Williamson and Detective John Soliz, the lead investigator on the case, went to Union Avenue to learn whether any of the prostitutes there could identify the body depicted in the photos. Connie Zambrano told Detective Soliz she recognized the victim as the girl she had seen entering the truck the night before. Another prostitute identified the victim as Tracie Clark.

That same day, criminalists compared the three bullets recovered from Clark's body with the two bullets recovered from Benintende's body the year before. The bullets matched: all were .38-caliber semi-copper-clad hollow-point bullets, all were of the same type as sheriff's-department-issue ammunition that was available to all deputies, and all had been fired from the same weapon. The ammunition also was sold commercially.

Detective Lage and Detective William Nikkel went to defendant's house that day and compared the tires on his truck with photos of the tire tracks found at the Clark murder scene. Finding the tires and tracks matched, the detectives drove Zambrano past defendant's house, where she identified defendant's truck as the truck she had seen Clark enter. She also picked defendant's photograph out of a photo lineup consisting of photos of six sheriff's deputies. At that time, she did not know defendant was a deputy sheriff.

Kern County District Attorney's Office investigator Tam Hodgson obtained warrants for defendant's arrest and the search of his house. Officers arrested defendant soon thereafter. Defendant's shoes appeared to match photos of the shoe prints at the scene. Once in custody, defendant agreed to be interviewed. Investigator Hodgson and Detectives Soliz and Lage questioned defendant on February 13 and 14, 1987. At the outset of the first interview, defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, then admitted shooting Clark and described the following events.

According to defendant, he picked up Clark near the El Don Motel at the corner of South Union Avenue and Belle Terrace in the early morning hours. Defendant was driving a Ford pickup truck with a brown-and-white camper shell, which he had purchased toward the end of the previous year.² Clark appeared to him to be a "Mexican female," about 20 to 30 years old and about 140 to 150 pounds.³ She asked whether he wanted a "date"; he said "I don't know." Clark entered the truck, and defendant drove about one block East on Belle Terrace, then stopped. They agreed on a price of $30 for oral sex. Defendant wanted to go out in...