P. v. Henderson

Filed 3/13/06 P. v. Henderson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury acquitted defendant Kevin Dwayne Henderson of first degree murder and robbery, convicting him instead of the lesser included offenses of second degree murder while personally using a knife and larceny. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1), 211, respectively.) The trial court sentenced the defendant to state prison.

On appeal, the defendant challenges the sufficiency of the evidence to support the jury's homicide verdict, the refusal of the trial court to permit defense counsel to enact an in-court demonstration of the infliction of the stab wounds, and the trial court's imposition of a restitution fine in excess of $10,000. The People concede the latter issue. We shall affirm as modified.

Facts

A. The Victim

On a Saturday afternoon in July 2002, the victim and some of his friends were in the midst of repairing a rental property that he owned in order for his daughter to live there. He drove his wife home in his 2001 gold Toyota Tundra about 2:30 p.m. He told her that he was going back to the rental. About an hour later, she called him on his cell phone to tell him that family members were coming over for a swim. However, she was able to reach only his voice mail thereafter in eight or nine attempts to call him. Since he would work at the rental until 10:00 p.m. on Saturdays and then sometimes go out with his friends, she was not concerned when he did not return. When she did not see him in their home the next morning, she assumed that he had already gone over to the rental, and went about her ordinary Sunday activities and visitations. By late afternoon, she grew concerned and called the sheriff's department. They told her they would be sending a deputy to her home. In the meantime, a cousin called to let her know that he had seen the Tundra in a parking lot. She went to verify that it was her husband's, then returned home. Deputies eventually arrived to take her downtown, where they told her that her husband was dead; he had been found that afternoon near some railroad tracks in an abandoned almond orchard near a Home Depot. There were multiple stab wounds on his left side to his throat, arm, chest and torso.

No one had witnessed the homicide. Indeed, no one had even seen the victim with the defendant on the fatal Saturday. No one could explain the victim's presence in the abandoned orchard. A friend believed that the victim liked to test the Tundra's four-wheel drive along the dirt road there (though he never actually witnessed this),^[1] but the victim's daughter was not aware that he ever drove through the orchard and did not think it likely. She did note that he parked in the lot at the store away from other vehicles in order to avoid anyone denting the Tundra's doors.

According to those who knew him, the victim was meticulous in his habits of maintaining the Tundra's exterior and interior. He did not suffer messy people as passengers, and would not allow a dog inside the truck because of his allergies and his belief that they were dirty. He was never in the habit of carrying a knife, though he carried box cutters in his pocket as a function of his job as a stocker at Costco.^[2]

B. Observations of the Defendant

The defendant was homeless and lived with his dog in a tent in the orchard behind Home Depot. He worked odd construction jobs, seeking employment with people coming to the store now that he could not drive around to construction sites because his truck had broken down.

On that Saturday afternoon, the defendant appeared at the trailer of former roommates. He was bleeding from a severe cut on his left forearm. He told the residents that he had been in a fight with a man named Richard. He also said that he had traded his 50-year-old truck for the Tundra in which he had arrived, a claim his acquaintances found implausible. He offered to repay a debt that he owed them by purchasing supplies at a Home Depot. He refused to go to the store by the orchard. On the way to the store, he repeated his claim that he had taken the Tundra after a fight with someone who had owed him $200 or $2,000. When they got to the store, he filled a cart with equipment, along with the paint supplies that they wanted, and asked them to wait outside in the truck. They looked through the glove box. They found ownership papers that made them decide to call the authorities when they got home. The defendant came out of the store empty-handed, claiming that there was a problem with his credit card. They returned to the trailer, where the defendant asked them to watch his dog. He left in the Tundra. While he was gone, a deputy arrived in response to the residents' call to look through items from the Tundra that the defendant had discarded in the trash.

When the residents returned from grocery shopping later that night, the defendant was on a sofa in their carport. He did not have the Tundra with him. They asked him to leave. He walked off with his dog.

On Sunday evening, deputies brought the residents downtown for questioning. After they returned home, the defendant showed up at their door. They called detectives, who came and arrested the defendant. The residents recovered the dog from where the defendant had secured him. The defendant's sister eventually retrieved the dog.^[3]

Earlier that Sunday, the defendant had approached a minister following the morning worship service and asked to speak to him in confidence. The minister explained that this would not be considered a confidential conversation. The defendant initially mentioned needing first aid for a wound on his arm, but resisted the suggestion that he go to a hospital. He then began to tell the minister that he had stabbed someone near the railroad tracks behind a Home Depot and did not know whether the victim was alive or dead; he did not provide any details of the circumstances. The defendant asked about absolution, and the minister explained that the denomination did not have this as a practice. The defendant asked for some food and clothes, which the minister provided. After prayerful consideration, the minister contacted the police to report the incident.

C. The Defendant's Testimony

At trial, the defendant said that he had sought work from the victim unsuccessfully on an earlier occasion. On the fatal afternoon, he recognized the victim as they both were leaving the Home Depot. The defendant's dog had wandered off from the front of the store, and the victim offered to drive him around the parking lot to find it. They located the dog in the orchard. The victim asked if the defendant would like a ride back to the store if he was not going to stay in the orchard. The defendant accepted the offer, and got into the Tundra with the dog. When the dog attempted to get into the front seat, it angered the victim. He braked the truck and grabbed the dog. The defendant tried to protect the dog from this manhandling. The victim then pulled out a knife and slashed the defendant's arm. Wresting the knife from the victim, the defendant began stabbing him out of fear for the safety of his dog and himself.^[4] The victim climbed out of the Tundra, at which point the defendant leapt into the driver's seat and drove off to the trailer of his acquaintances. He later left the Tundra in a parking lot down the street from the Home Depot because he saw deputies present in the latter parking lot.

He did not explain the circumstances of the stabbing to the trailer residents because at that time he could not comprehend what he had done. When he went to the church the following day (where he previously had been a congregant), he never got the opportunity to explain the defensive circumstances of the killing to the minister.

He denied any intent to rob, hurt, or kill the victim. He took the Tundra only because he was scared. He never told the trailer residents that he was going to use a Home Depot credit card to make purchases at the store, and did not attempt to use the victim's credit card.^[5]

The defendant noted that he would speak to people who drove too quickly through the orchard and stirred up dust, but he was never confrontational with them. This was not the basis of his encounter with the victim.

D. Expert Testimony

A pathologist believed the wound pattern was consistent with an attacker stabbing the victim from outside the driver's door. He admitted on cross-examination that the pattern was consistent with an attack from the passenger seat as well.

Blood from both the victim and the defendant was in the Tundra, mostly on the driver's side of the cab and the exterior. A criminalist who claimed expertise in reconstructing crime scenes from analysis of blood spatter believed that the attack took place from outside the Tundra through the open driver's door while the victim was in the driver's seat.^[6] He based his opinion on the injury pattern limited to the victim's left side and the lack of more extensive blood spatter on the driver's door or significant blood residues on the passenger side (as would be expected in an attack from the passenger seat or with the door closed). There was no indication of a blood trail leading to the location of the victim's body. On cross-examination, the expert conceded that the wound pattern could be consistent with a face-to-face attack from a passenger, whose body could have blocked the deposit of spatter from the victim. Blood from the defendant on the driver's headrest was also more consistent with a wound to a passenger's left arm bleeding as he reached across the cab, rather than an attacker reaching into the cab from outside.

Discussion

I

The prosecutor had argued that the jury could premise a verdict of first degree murder on a theory of felony murder (murder during the commission of a robbery), and urged the jury to sustain a robbery-murder special circumstance. Alternatively, she contended the jury could find that this was a premeditated first degree murder. She also explained that if there was a doubt about there being an intent to kill, the jury could convict the defendant of second degree murder because the jury could imply malice from the severity of the wounds the defendant had inflicted on the victim with a conscious disregard that they might result in death. The defense argued that the homicide was either justified in defense of his person or his dog, or should be mitigated as an unreasonable defense of the two.

During deliberations, the jury made several inquiries. Some indicated its concern with the timing of the defendant's intent to steal from the victim. The jury also sought the readback of a small portion of the defendant's cross-examination (in which he discussed talking to drivers who kicked up dirt by his tent) and the testimony of the criminalist; during the latter, the jury asked the reporter to stop at the end of the direct examination, and shortly afterward returned its verdicts.

On appeal, the defendant contends that because â€