People v. Kerley

23 Cal.App.5th 513

233 Cal.Rptr.3d 135

The PEOPLE, Plaintiff and Respondent,

v.Lonnie James KERLEY, Defendant and Appellant.

A138219

Court of Appeal, First District, Division 4, California.

Filed May 18, 2018

Attorneys: Jonathan Soglin and L. Richard Braucher, by appointments of the Court of Appeal under the First District Appellate Project's independent case system, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Jeffery M. Laurence, Assistant Attorney General, Catherine A. Rivlin and Michael Chamberlain, Deputy Attorneys General, for Plaintiff and Respondent.

REARDON, J.

After a lengthy trial, a jury found defendant Lonnie James Kerley (Kerley) guilty of second degree murder in connection with the death of his former girlfriend, Danna Dever (Dever). The trial court sentenced Kerley to 15 years to life in state prison. On appeal, Kerley asserts that numerous evidentiary, instructional, and constitutional errors require reversal of his conviction. For the reasons that follow, we will affirm.

FACTUAL BACKGROUND¹

Dever began dating Kerley in the early 1980's, and their daughter, Mandee Kerley, was born in 1986. Kerley, Dever, and Mandee lived together on Oakbrook Circle in Cordelia, California (the Oakbrook residence). Kerley worked for the Napa School District, driving a garbage truck and later working in the plumbing department.

1. Dever and Kerley's Relationship

At trial, the prosecution presented extensive testimony from Dever's family, neighbors, and friends that her relationship with Kerley was abusive and physically violent.

For example, Denae D., Dever's sister, testified that, when Dever was eight or nine months pregnant with Mandee, she witnessed Kerley, who was wearing steel-toed boots, punching and kicking Dever in the stomach as Dever tried to leave their apartment. Denae testified that eventually the police were called and that Kerley "took off." Denae described Dever's relationship with Kerley as verbally and physically abusive, and stated that she observed Dever with "many black eyes" over the course of their relationship. She also testified that Kerley "broke or bruised" Dever's ribs, and at one time, cut Dever's hair. According to Denae, Kerley would not allow Dever to spend time with Denae and her family.

Shortly after Mandee was born, Susan D., Dever's stepmother, received a phone call from Kerley's mother, who was "frantic" and worried that Dever would hurt herself or Mandee. Susan went to Dever's house. When she arrived, Dever began to open the door, but Kerley appeared, pushed Susan aside, knocked Dever to the ground and began kicking her. Meanwhile, Kerley's mother picked up Mandee and took her to the car. Kerley then left with his mother and Mandee. Dever suffered bruises to her side, hip, leg, and arm. Susan also testified that on several occasions she saw Dever with black eyes and with her face or arms "black and blue."

Deborah M., another of Dever's sisters, testified that sometime before 1990, Dever called and asked Deborah to come over because she (Dever) was fighting with Kerley. Deborah arrived at Dever's apartment and witnessed Kerley kicking Dever, who was on the floor "crying and screaming." Deborah also saw Dever with "her face all bruised up," an eye that had been "bludgeoned," and bruises on her back. Over the years, Dever left Kerley approximately five times and stayed with Deborah at her home.

2. December 1989 Incident

On December 24, 1989, at around 1:00 a.m., Fairfield police officer Caree Harper responded to a call reporting a disturbance at the Oakbrook residence. When Officer Harper arrived, she heard Dever screaming "Trudy, Trudy" very loudly. As Dever continued screaming, another officer who had arrived knocked on the door. Kerley opened the door, said, " ‘Everything is fine,’ " and quickly slammed it shut again. Dever continued to scream, and Officer Harper and the other officer broke a window in order to pull Dever out of the house. Dever was "hysterical, frantic, scared [and] panicked," and told the officers, " ‘Hurry, I know he's going to kill me.’ " Dever was taken to the police station, where she gave a statement. Dever told Officer Harper that Kerley had beaten her because she failed to find a woman with whom she could have sex while Kerley watched. Dever said that Trudy had engaged in sex with them before, but she refused to do so again because Kerley had held a gun to her head and was too violent. Officer Harper photographed Dever's injuries, which included a one-inch cut above her left eye and a bruise on her thigh.

3. January 1996 Incident and Domestic Violence Charges

On January 7, 1996, Fairfield police officer Hank McCoy responded to a domestic violence call at the Oakbrook residence. Dever answered the door with two black eyes, and was shaking and crying uncontrollably. Dever jumped onto Officer McCoy and yelled, " ‘Help me, help me, save me, save me, he did this.’ " Kerley was standing in the doorway, and Mandee was in the back of the room. Officer McCoy carried Dever to his patrol car and put her in the back seat. Dever told Officer Julie Cross that Kerley had "stomped her right hand and foot at the same time, and then he kicked her in her eye with his right foot." Dever said that, when she went to call 911, Kerley told her he would kill her if any police officers came to the house. The police obtained an emergency protective order preventing Kerley from contacting Dever or Mandee. Kerley was arrested and taken to the police station, where he gave a statement that Dever was injured when she ran into a wooden fence and then "proceeded to scratch and hit herself."

A few days later, Dever appeared at the Fairfield Police Department and filled out a form requesting that the domestic violence charges against Kerley be dropped. Nevertheless, domestic violence charges were filed against Kerley on January 23, 1996. On February 6, 1996, Dever again visited the Fairfield Police Department and submitted a form requesting that the charges be dropped. A five-page letter apparently signed by Dever was also received by the Fairfield Police Department, asking that the charges be dropped and stating that Dever injured herself. Kerley had a court appearance on the domestic violence charges scheduled for June 19, 1996.

4. Dever's Disappearance

Dever disappeared on approximately June 14, 1996. Kerley did not report her missing until August 5, 1996, when he told the Fairfield Police Department that at around 4:15 a.m. on the morning of June 14, 1996, Dever made a comment to the effect that she "couldn't take it anymore" and left the residence with a friend that he did not know. Kerley stated that Dever left on foot without taking anything with her and that he believed she was using methamphetamine.

On August 27, 1996, Fairfield Police Officer Matt Rubin met with Kerley at the Oakbrook residence to follow up on his missing person report. Kerley told Officer Rubin that Dever had left at approximately 8:00 a.m. on June 14, 1996. Dever had gotten dressed, taken her purse and approximately $3,000 that had been intended for household expenses and the mortgage payment, told him that she "loved him but had to leave" and walked out the door. Kerley said Dever did not take her car and he did not know where she had gone. Kerley stated that he was in bed, crying and upset, when Dever left.

At trial, Kerley's mother, Eleanor K., testified that Kerley had called her early in the morning on June 14, 1996 and asked her to come to the house, saying that " ‘Danna's going to leave’ " and asking that she come talk to Dever. Eleanor and Kerley's father Lonnie went to the Oakbrook residence, and Eleanor talked with Dever. Dever said that she "wanted to leave," that "she was picking up weight, and he wanted her to get her weight down," and that she "had places to go and things to do." Eleanor K. testified Dever also said she was having an affair with her brother-in-law.

Kerley and Dever were arguing about some money intended for a school function that Dever had spent. Eleanor testified that Dever hugged Mandee, said that she was leaving and that she loved her, and said, " ‘I'll see you later.’ " Dever left carrying only her purse, and Eleanor did not see where she went after she went out the front door. Kerley's father, Lonnie, took Mandee to school that morning before 8:00 a.m., so he was not at the home when Dever left.

5. Discovery of Jane Doe No. 7

On July 8, 1996, two local ranch hands were looking for a coyote near Highway 113 and Flannery Road in a "very rural" area outside of Rio Vista in Solano County. One of the ranch hands saw a nude female body in a dry creek bed partially covered by a green blanket from the torso up. The body was five or six feet from Flannery Road in a ditch seven to nine feet deep, which together with the brush and trees in the area made it difficult to see. The ranch hands left the body undisturbed and alerted the authorities.

The body was very decomposed, skeletonized, and dry, with no organs visible inside. No clothing, jewelry, or identifying information was found on the body, which was designated "Jane Doe No. 7."

6. Autopsy of Jane Doe No. 7

On July 9, 1996, Dr. Brian Peterson, a contract forensic pathologist for Solano County, performed an autopsy on Jane Doe No. 7. Dr. Peterson concluded that the cause of death could not be determined. He also testified that he removed the chest plate to examine the chest cavity, using pruning shears to cut all but two of the ribs. Dr. Peterson opined that the cuts made to remove the chest plate were not consistent with injuries from stomping, because stomping would not produce symmetrical or "neat" fractures. The body's right hand was removed and saved for identification purposes.

Technicians were later able to rehydrate the skin on the right hand and obtain a usable fingerprint from the right thumb. A fingerprint examiner searched for the print in...