People v. Clark

After a jury found Royal Clark competent to stand trial, another jury convicted him of the first degree murder of Billie-Jo *872 Laurie Farkas (Pen. Code, §§ 187, subd. (a), 189), 1 the premeditated attempted murder of Angie Higgins (§§ 187, subd. (a), 664, subd. (a)), two counts of robbery (§§ 211, 212.5, subd. (b)), the attempted rape of Farkas (§§261, subd. (a)(2), 664), assault upon Higgins by force likely to produce great bodily injury (§ 245, subd. (a)(1)), and the false imprisonment and kidnapping of Higgins (§§ 236, 207, subd. (a)). The jury found true the three special circumstance allegations that the murder was committed while defendant was engaged in the commission of robbery and attempted rape (§ 190.2, subd. (a)(17)(A), (C)), and for the purpose of preventing the victim’s testimony in a criminal proceeding (§ 190.2, subd. (a)(10)). The jury also found true the allegations that defendant personally used a deadly weapon (a rope) during the commission of the murder, attempted murder and assault (§ 12022, subd. (b)), and that he intentionally inflicted great bodily injury on Higgins during the commission of the attempted murder and assault (§ 12022.7). The jury…

Although I join the majority in affirming the judgment of death, I disagree with the majority’s analysis of two of defendant’s claims.

Defendant contends that the prosecutor improperly exercised peremptory challenges against certain prospective jurors on the basis of their race. (See Batson v. Kentucky (1986) 476 U.S. 79 [ 90 L.Ed.2d 69 , 106 S.Ct. 1712 ] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ] (Wheeler).) The majority rejects that contention. So do I, but for reasons different from the majority’s, as explained later.

Defendant also challenges the sufficiency of the evidence supporting the jury’s special circumstance finding that he killed a witness to prevent her from testifying against him. Unlike the majority, I agree with defendant that the evidence was insufficient, and I would therefore vacate this particular special circumstance finding. This conclusion does not, however, compel reversal of the judgment of death: Two other special circumstances are valid, so that defendant was eligible for the death penalty. Furthermore, the invalid special circumstance did not prejudice defendant at the penalty phase, because the jury could…

I concur in part II of Justice Kennard’s concurring and dissenting opinion, and for the reasons she states would reverse the witness-killing special circumstance. In all other regards, I concur in the majority opinion.

I. FACTS

A. Guilt Phase Evidence

1. Prosecution evidence At the time of the crimes in January 1991, defendant was 27 years old and resided with Donna Kellogg and their young children in Kellogg‟s Fresno home. The murder victim, 14-year-old Billie-Jo Laurie Farkas (Laurie), was Kellogg‟s cousin. Laurie‟s mother, Venus Farkas, testified that Kellogg introduced defendant to the family in 1986 when he and Kellogg moved to the Fresno area. According to Mrs. Farkas, defendant visited the Farkases‟ residence often. In the year preceding the murder, family members noticed that defendant‟s visits became more frequent and that he was paying particular attention to Laurie. Mrs. Farkas testified that defendant often asked Laurie to go places with him and

2 was teaching her to drive his car. According to Laurie‟s older sister, Angelique, defendant sometimes commented on the tightness of Laurie‟s clothing. He also once asked the girls whether they were virgins, how “far” they had “gone with boys,” and if they had ever considered having an older, more experienced boyfriend like him. Defendant‟s growing interest in Laurie also was apparent to individuals outside the family. Defendant‟s friend…