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People v. Kraft8/10/2000
that proof is lacking of penetration and anal intercourse and that the victim was alive at the time of the alleged sodomy. Defendant also contends the evidence failed to establish that the sodomy was not merely incidental to the murder. The invalidity of the special circumstance finding, he urges, undermines the integrity of the death judgment required by the Eighth and Fourteenth Amendments to the federal Constitution. Contrary to defendant's argument, we find in the record sufficient evidence to sustain the verdict and finding, and there would be no plausible basis for reversal of the judgment even were we to reach a different conclusion.
As described above (ante, at p. ), about 6:15 a.m. on November 17, 1978, a passing motorist saw Michael Inderbieten's dead body on a transition road from Seventh Street leading to the 405 and 605 Freeway on-ramps in Long Beach. A responding Long Beach police officer observed that the victim was wearing only a pair of pants, partially pulled down and exposing his buttocks. The cause of death was determined to be anoxia due to suffocation. The victim's scrotum and testicles had been removed, probably antemortem. The victim's anus appeared to be slightly dilated, but the pathologist detected no trauma to the rectum. Analysis of anal swabs taken at the autopsy revealed the presence of semen and spermatozoa containing type B blood activity. The semen could have come from someone who was either a nonsecretor or a type B secretor. The victim, a secretor, had type B blood; defendant is a nonsecretor.
Citing the lack of trauma to the rectum and the evidence the victim had type B blood, defendant argues the semen found on the anal swabs probably came from the victim. As the Attorney General observes, however, absent is any evidence the victim ejaculated around the time of death. On these facts, including the condition of the victim's clothing, the jury reasonably found defendant committed the sodomy of Inderbieten, and we will not disturb its finding on appeal.
Likewise, the record contains sufficient evidence to support the jury's implicit conclusion the victim was alive when defendant committed sodomy, as required for conviction. (People v. Ramirez (1990) 50 Cal.3d 1158, 1176.) Defendant reasons that the pathologist's finding of no injury to the rectum, despite slight dilation of the anus, indicates any penetration must have occurred after death, with its concomitant relaxation of the sphincter muscles. The jury, however, may have inferred, as the Attorney General suggests, that the sodomy was committed before the emasculation and resultant bleeding. In any case, as in People v. Ramirez, " lthough the prosecution's pathologist may not have been able to determine clinically whether penetration occurred shortly prior to death, at death, or just after death, in the absence of any evidence suggesting that the victim's assailant intended to have sexual conduct with a corpse [citation], we believe that the jury could reasonably have inferred from the evidence that the assailant engaged in sexual conduct with the victim while was still alive rather than after was already dead. Under the applicable standard of review [citations], we conclude that a reasonable trier of fact could have found the essential elements of sodomy beyond a reasonable doubt." (Id. at pp. 1176-1177.)
Defendant further argues the evidence fails to establish the sodomy special-circumstance finding, in that it cannot be determined whether the sodomy occurred in the course of murder, or conversely whether the murder occurred in the course of sodomy. He observes that the prosecutor focused exclusively on a theory of deliberate and premeditated murder, and the jury was not given
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