PEOPLE v. ROGERS

Filed 8/21/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S005502

v. )

)

DAVID KEITH ROGERS, )

) Kern County

Defendant and Appellant. ) Super. Ct. No. 33477

__________________________________ )

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 â€

Description	Testimony that defendant suffered from some degree of disassociation and had used PCP, did not compel trial court to order competency hearing sua sponte. Where there was no testimony that any dissociative disorder affected his ability to assist counsel or to understand trial proceedings and there was no testimony that his drug use was extensive. Joinder of two murder counts was not grossly unfair where identity of perpetrator of one murder was disputed and evidence regarding other murder was relevant to that issue. There were numerous characteristics common to the two murders and there was little likelihood that evidence of one crime would improperly induce the jury to convict defendant of the other. Evidence that defendant, a deputy sheriff, had been fired based on a complaint by a prostitute but later reinstated was properly admitted at trial for killing another prostitute. Since it tended to show that defendant may have killed victim to prevent her from complaining and possibility having him terminated again. Defendant's testimony--that when victim was walking toward him with her finger pointed at him, he felt threatened and afraid and shot her out of a need for protection--taken in combination with mental health experts' testimony that the killing was a result of defendant's association of victim with his abusive stepmother and "fear of not surviving himself" did not infer that defendant believed he was in imminent fear that victim--an unarmed teenage prostitute--would kill him or cause him great bodily injury. The court was not required to give sua sponte instruction on imperfect self-defense. Where prosecution's case regarding the identity of killer of second victim rested principally on defendant's possession of the murder weapon and his admitted killing of first victim a year earlier under similar circumstances.
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PEOPLE v. ROGERS PART-I