P. v. Bernard

Filed 2/24/06 P. v. Bernard CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury found appellant Kendra Dawn Bernard guilty of the first degree murder of her mother Margaret. (See Pen. Code, § 187.) Sentenced to an indeterminate term of 25 years to life in state prison, Bernard appeals the judgment.^[1] She contends that the trial court erred by excluding evidence tending to show that Edward Cunningham actually killed her mother. We affirm the judgment.

I. FACTS

A. Circumstances Leading up to the Crime

Sixty-two-year-old Margaret Bernard lived in a condominium in Antioch with her daughter, appellant Kendra Dawn Bernard.^[2] Sometimes, Bernard's 18-year-old daughter Larissa Barton also lived with them.^[3] Margaret and Bernard did not get along well. They argued frequently^[4] and Margaret complained regularly about Bernard. Bernard could get very angry with Margaret but had no history of physical violence toward her mother.

There were several sources of discontent between the two women. Bernard was only occasionally employed doing landscaping, construction and maintenance work. When she was not working, Margaret supported her. Bernard did not pay rent, but did some repair work and improvements at her mother's condominium.

Margaret was also upset with Bernard about the state of their home. Bernard parked her motorcycle in the living room and kept a dog that Margaret did not want there. Bernard wrote graffiti^[5] on walls, doors and fixtures, damaging the condominium.^[6] Margaret wanted to move, but she feared that Bernard would burn the condominium down.

Bernard's boyfriend Edward Cunningham was also a source of disagreement for mother and daughter. Margaret was afraid of him. She believed that he had committed various acts of vandalism in and around the condominium. By early 2001,^[7] Margaret made it clear that she did not want Cunningham to come to the condominium, but sometimes he came anyway. Sometimes, Bernard did not want to let him in or talk with him on the telephone, even after he called repeatedly in a short time.

Margaret had asked her son Phil to fix up her condominium, which she decided to sell. He repaired or replaced doors and walls with holes in them and Bernard's writing on them. During the weekend before Easter^[8]--the weekend of April 7-8--he returned to the condominium and discovered that some of the repairs he had completed had to be redone because of new damage. Angrily, he kicked in the door of Bernard's bedroom.^[9] He saw that her room was piled high with garbage. Phil saw a gun inside Bernard's room where a knife stuck out of the door jamb.^[10]

B. Missing Persons Investigation

One of Margaret's neighbors noticed that Bernard's dog was alone at the condominium and contacted authorities. On April 21, an Antioch police officer went to the condominium to check on the dog's welfare. He forced his way into the locked condominium and found the dog inside. It appeared that the dog had been left unattended for several days, although someone had left food for the animal. The dog was taken by animal control. Police boarded up the condominium door and left a card on it.

When Margaret did not keep her Easter weekend plans on April 14 and 15 and did not go to work during the week of April 16 to 20, her family became concerned. Margaret's daughter Kim went to the condominium and found that the police had been there. Neither Margaret nor Bernard were there.

By April 24, Antioch police had received missing persons reports from Margaret's daughter Kim. The police returned to the condominium to make a more thorough search of the home. A maintenance worker for the condominium association told Officer Brown that he had last seen Margaret on the Friday before Easter--April 13. Margaret had not kept an appointment on Tuesday, April 17. He thought that he saw Bernard in a maroon Fairmont in front of the condominium on Monday, April 16 or Tuesday, April 17. Antioch police questioned Margaret's son Phil, who characterized Bernard as a psychopath. At this point, police suspected that Cunningham might also be involved with Margaret's disappearance.^[11]

C. Sierra County and Solano County Discoveries

By this time, Antioch police knew that a dismembered body had been found in Northern California, but the identity of the body was not certain. A few days earlier, on Friday, April 20, a Sierra County sheriff found a nude female torso on a rural road near the town of Alleghany. The torso was missing its head, hands and feet. No clothing or identifying indicia was found with the remains. A sheetrock knife, pieces of fabric and various bits of plastic were found nearby.

On the same day, a Solano County sheriff received a report that a woman's severed head had been seen inside a sleeping bag left on a road beside an orchard near Putah Creek. At this site, the sheriff found a mound of items 15 to 20 feet from the road. In the mound, police found a sleeping bag containing a severed head, two hands and two feet wrapped in plastic with some rope, an axe, a machete, two knives, and a sweatshirt. Teal plastic bags and other pieces of plastic were also found in the mound or in the nearby orchard. Antioch police believed that Margaret's body was dismembered in order to dispose of evidence of her murder.

D. Murder Investigation

On April 25, Antioch police confirmed Margaret's death. Bernard was arrested at the San Leandro home of Loren Dale Barton, who was Larissa's father. Bernard was limping, but had few other obvious injuries. At the time of her arrest, Bernard's purse had been seized. It contained pine needles and a granite rock more common to the Sierra Nevada than to the local area.^[12] Receipts dated April 14 and April 16 were also found in her purse. Two of these receipts were from Antioch and Pittsburg Wal-Mart stores.^[13] One showed that a machete had been purchased on April 16. The indicated item was akin to a machete found at the Solano County crime scene. Another April 16 receipt evidenced a visit to an Oakley Albertson's store.^[14]

That same day, Modesto police formally notified Margaret's son Phil of the fact--but not the circumstances--of Margaret's death. Spontaneously, he characterized Bernard as having a violent temper. He told police that Margaret had been afraid of Bernard, who had repeatedly threatened her. According to Phil, Margaret wanted Bernard to move out, but was afraid to ask her to do so. Bernard had threatened his sister and himself, too. Phil was sufficiently concerned for his own safety that he planned to leave his home in order to avoid confronting Bernard.

On April 25, the Fairmont had been found parked near Margaret's condominium. Part of its front left grill and the light were missing. The car was impounded. The vehicle was searched two days later, on April 27. A tent, shovel and teal plastic bags were found among a jumble of items in the back seat. The front seat was covered by a cloth. Under the cloth, inked writing^[15] was found on the center of the front seat. The writing was covered over with heavy black ink. A marking pen was also found in the car. Teal and black plastic were found in the trunk, along with some pine needles and leaves. Several items in the trunk were stained with what was later determined to be Margaret's blood.

Also on April 27, Antioch police searched Margaret's condominium. They found the living room and bedrooms in disarray. Among the items found were black plastic bags, syringes, a length of rope, and indicia belonging to Bernard and to Cunningham. A purse that appeared to belong to Bernard contained a dagger that had been sharpened on both sides of the blade. In front of the condominium, a garbage can held a plastic bag containing a potholder with a clump of blond hair on it.^[16]

The metal front door of the condominium had a small puncture in it, as if someone had pushed a knife through the outer layer. The authorities looked for hardened glue or a broken key in the locks, but found none. Police also observed the initials ELC^[17] scratched into the curb in front of the condominium. In all, the detailed search of the condominium took 14 hours to complete.

Law enforcement officials gradually established forensic links among evidence found at Margaret's condominium, in the Fairmont, and at the Sierra County and Solano County crime scenes. The various body parts were identified as belonging to Margaret's body. The sleeping bag, the rope found in the plastic bags with the severed hands and feet, a knife and a bed sheet^[18] that were all found in Solano County were tied to Margaret's condominium. Teal plastic bags found in the Fairmont and at the Sierra County crime scene matched plastic that had been wrapped around the body parts that were found in Solano County. Foliage that was not natural to the Solano County crime scene was found in the hair on the severed head.^[19] The forensics evidence also suggested that Margaret's body had been taken from the condominium to an outdoor location where it had been dismembered using the axe, machete and knives.

The police also began to piece together a chronology of events in the days leading up to Margaret's death and the time of Bernard's arrest. On Wednesday, April 18, Bernard was trying to locate Barton, Larissa's father. On Thursday, April 19, Barton went with a friend to Vallejo where they found Bernard asleep in the Fairmont. She was filthy, crying, and disoriented. Barton thought that she was on methamphetamine and was sleep-deprived. She told Barton that the police could be looking for her because Margaret was dead. When he appeared not to believe that her mother was dead, she said â€