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Bernard v. Johnson

United States District Court, N.D. California, Oakland Division

July 22, 2016

KENDRA D. BERNARD, Petitioner,
DEBORAH K. JOHNSON, Warden, Respondent.


          SAUNDRA BROWN ARMSTRONG Senior United States District Judge

         Petitioner Kendra D. Bernard (“Petitioner”) brings the instant pro se habeas action under 28 U.S.C. § 2254 to challenge her murder conviction and sentence rendered in the Contra Costa County Superior Court. Petitioner’s Amended Petition is the operative pleading in this action. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the Amended Petition for the reasons set forth below.

         I. BACKGROUND

         A. Statement of Facts The following facts are taken from the opinion of the California Court of Appeal ("Court of Appeal" or "state appellate court"):

A. Circumstances Leading up to the Crime
Sixty-two-year-old Margaret Bernard lived in a condominium in Antioch with her daughter, appellant Kendra Dawn Bernard.[1] Sometimes, Bernard's 18-year-old daughter Larissa Barton also lived with them.[2] Margaret and Bernard did not get along well. They argued frequently[3] and Margaret complained regularly about Bernard. Bernard could get very angry with Margaret but had no history of physical violence toward her mother.
There were several sources of discontent between the two women. Bernard was only occasionally employed doing landscaping, construction and maintenance work. When she was not working, Margaret supported her. Bernard did not pay rent, but did some repair work and improvements at her mother's condominium.
Margaret was also upset with Bernard about the state of their home. Bernard parked her motorcycle in the living room and kept a dog that Margaret did not want there. Bernard wrote graffiti[4] on walls, doors and fixtures, damaging the condominium.[5] Margaret wanted to move, but she feared that Bernard would burn the condominium down.
Bernard's boyfriend Edward Cunningham was also a source of disagreement for mother and daughter. Margaret was afraid of him. She believed that he had committed various acts of vandalism in and around the condominium. By early 2001, [6]Margaret made it clear that she did not want Cunningham to come to the condominium, but sometimes he came anyway. Sometimes, Bernard did not want to let him in or talk with him on the telephone, even after he called repeatedly in a short time.
Margaret had asked her son Phil to fix up her condominium, which she decided to sell. He repaired or replaced doors and walls with holes in them and Bernard’s writing on them. During the weekend before Easter[7] -the weekend of April 7-8-he returned to the condominium and discovered that some of the repairs he had completed had to be redone because of newdamage. Angrily, he kicked in the door of Bernard’s bedroom.[8] He saw that her room was piled high with garbage. Phil saw a gun inside Bernard’s room where a knife stuck out of the door jamb.[9]
B. Missing Person’s Investigation
One of Margaret’s neighbors noticed that Bernard’s dog was alone at the condominium and contacted authorities. On April 21, an Antioch police officer went to the condominium to check on the dog’s welfare. He forced his way into the locked condominium and found the dog inside. It appeared that the dog had been left unattended for several days, although someone had left food for the animal. The dog was taken by animal control. Police boarded up the condominium door and left a card on it.
When Margaret did not keep her Easter weekend plans on April 14 and 15 and did not go to work during the week of April 16 to 20, her family became concerned. Margaret’s daughter Kim went to the condominium and found that the police had been there. Neither Margaret nor Bernard were there.
By April 24, Antioch police had received missing persons reports from Margaret’s daughter Kim. The police returned to the condominium to make a more thorough search of the home. A maintenance worker for the condominium association told Officer Brown that he had last seen Margaret on the Friday before Easter-April 13. Margaret had not kept an appointment on Tuesday, April 17. He thought that he saw Bernard in a maroon Fairmont in front of the condominium on Monday, April 16 or Tuesday, April 17. Antioch police questioned Margaret’s son Phil, who characterized Bernard as a psychopath. At this point, police suspected that Cunningham might also be involved with Margaret’s disappearance.[10]
C. Sierra County and Solano County Discoveries
By this time, Antioch police knew that a dismembered body had been found in Northern California, but the identity of the body was not certain. A few days earlier, on Friday, April 20, a Sierra County sheriff found a nude female torso on a rural road near the town of Alleghany. The torso was missing its head, hands and feet. No clothing or identifying indicia was found with the remains. A sheetrock knife, pieces of fabric and various bits of plastic were found nearby.
On the same day, a Solano County sheriff received a report that a woman’s severed head had been seen inside a sleeping bag left on a road beside an orchard near Putah Creek. At this site, the sheriff found a mound of items 15 to 20 feet from the road. In the mound, police found a sleeping bag containing a severed head, two hands and two feet wrapped in plastic with some rope, an axe, a machete, two knives, and a sweatshirt. Teal plastic bags and other pieces of plastic were also found in the mound or in the nearby orchard. Antioch police believed that Margaret’s body was dismembered in order to dispose of evidence of her murder.
D. Murder Investigation
On April 25, Antioch police confirmed Margaret’s death. Bernard was arrested at the San Leandro home of Loren Dale Barton, who was Larissa’s father. Bernard was limping, but had few other obvious injuries. At the time of her arrest, Bernard’s purse had been seized. It contained pine needles and a granite rock more common to the Sierra Nevada than to the local area.[11] Receipts dated April 14 and April 16 were also found in her purse. Two of these receipts were from Antioch and Pittsburg Wal-Mart stores.[12] One showed that a machete had been purchased on April 16. The indicated item was akin to a machete found at the Solano County crime scene. Another April 16 receipt evidenced a visit to an Oakley Albertson’s store.[13]
That same day, Modesto police formally notified Margaret’s son Phil of the fact-but not the circumstances-of Margaret’s death. Spontaneously, he characterized Bernard as having a violent temper. He told police that Margaret had been afraid of Bernard, who had repeatedly threatened her. According to Phil, Margaret wanted Bernard to move out, but was afraid to ask her to do so. Bernard had threatened his sister and himself, too. Phil was sufficiently concerned for his own safety that he planned to leave his home in order to avoid confronting Bernard.
On April 25, the Fairmont had been found parked near Margaret’s condominium. Part of its front left grill and the light were missing. The car was impounded. The vehicle was searched two days later, on April 27. A tent, shovel and teal plastic bags were found among a jumble of items in the back seat. The front seat was covered by a cloth. Under the cloth, inked writing[14] was found on the center of the front seat. The writing was covered over with heavy black ink. A marking pen was also found in the car. Teal and black plastic were found in the trunk, along with some pine needles and leaves. Several items in the trunk were stained with what was later determined to be Margaret’s blood.
Also on April 27, Antioch police searched Margaret’s condominium. They found the living room and bedrooms in disarray. Among the items found were black plastic bags, syringes, a length of rope, and indicia belonging to Bernard and to Cunningham. A purse that appeared to belong to Bernard contained a dagger that had been sharpened on both sides of the blade. In front of the condominium, a garbage can held a plastic bag containing a potholder with a clump of blond hair on it.[15]
The metal front door of the condominium had a small puncture in it, as if someone had pushed a knife through the outer layer. The authorities looked for hardened glue or a broken key in the locks, but found none. Police also observed the initials ELC[16] scratched into the curb in front of the condominium. In all, the detailed search of the condominium took 14 hours to complete.
Law enforcement officials gradually established forensic links among evidence found at Margaret’s condominium, in the Fairmont, and at the Sierra County and Solano County crime scenes. The various body parts were identified as belonging to Margaret’s body. The sleeping bag, the rope found in the plastic bags with the severed hands and feet, a knife and a bed sheet[17] that were all found in Solano County were tied to Margaret’s condominium. Teal plastic bags found in the Fairmont and at the Sierra County crime scene matched plastic that had been wrapped around the body parts that were found in Solano County. Foliage that was not natural to the Solano County crime scene was found in the hair on the severed head.[18] The forensics evidence also suggested that Margaret’s body had been taken from the condominium to an outdoor location where it had been dismembered using the axe, machete and knives.
The police also began to piece together a chronology of events in the days leading up to Margaret’s death and the time of Bernard’s arrest. On Wednesday, April 18, Bernard was trying to locate Barton, Larissa’s father. On Thursday, April 19, Barton went with a friend to Vallejo where they found Bernard asleep in the Fairmont. She was filthy, crying, and disoriented. Barton thought that she was on methamphetamine and was sleep-deprived. She told Barton that the police could be looking for her because Margaret was dead. When he appeared not to believe that her mother was dead, she said “just smell the trunk.” Bernard was unclear on some of the details of how her mother died, but the way she described the situation led Barton to believe that she woke to find her mother’s neck cradled in her arm. When he returned to his friend, Barton said that Bernard’s mother was dead.[19]
Barton went back home to San Leandro and Bernard followed him. Bernard talked with their daughter Larissa in private and later recounted some details of Margaret’s death to Barton. Bernard said that she and Cunningham had been at the condominium drinking. She was uncertain, but thought that she lost consciousness at some point.[20] She woke to feel Cunningham nudging her foot. She was on the kitchen floor with her arm underneath Margaret, whose fingernails were blue, suggesting that Margaret was dead. Cunningham told Bernard that he had to give her an injection to wake her up; that he was going to help her out of this because he loved her; and that he took photographs.
Bernard said that she and Cunningham put Margaret’s body in the Fairmont. She told Barton that she held onto Margaret’s body while Cunningham cut off her head, hands and feet.[21] She said that she did not want to do this, but he had an axe and turned it on her, making her fear for her own safety if she did not do as he instructed. Bernard also said that Cunningham cut off one of Margaret’s fingers in order to remove a ring.[22] Bernard also admitted cashing some of Margaret’s checks.[23] She seemed convinced that she had lost control of herself, but did not think that she killed Margaret- she could not be certain. Bernard seemed to think that Cunningham had set her up for the crime.
Bernard stayed with Barton for almost a week before she was arrested. She seemed fearful of both her boyfriend and the police. She slept much of the first two days. She wanted to flee, but Barton persuaded her to consult the public defender instead. On April 23 and again on April 24, Bernard went to Martinez with Larissa for this purpose. On the way to her first meeting with the publicdefender, Bernard picked up Margaret’s second car in Pittsburg[24] and left the Fairmont in Antioch near the condominium.
E. Pretrial Procedure
In October, a five-day preliminary hearing was conducted. Bernard sought to introduce evidence of Cunningham’s propensity to violence on various grounds-as a common plan to intimidate or terrorize people, as evidence of the identity of Margaret’s killer, and to support her own credibility. The trial court ruledthat the evidence was inadmissible. (See Evid. Code, [25] § 1101.) Bernard was held to answer on the murder charge.
In December, Bernard was charged by information with first degree murder. (See Pen. Code, § 187.) Her motion to set aside the information-again, grounded in her claim that Cunningham was the real murderer-was denied in January 2002. (See Pen. Code, § 995.) Her motions to exclude her pretrial statement as involuntary and to compel specific performance of an agreement entitling her to take a polygraph test in order to establish her innocence[26] were also denied.
In March 2002, Bernard filed a motion in limine to admit evidence of 30 separate incidents of Cunningham’s prior uncharged violent conduct-evidence that she reasoned would tend to prove that he had killed Margaret. After hearing, the trial court granted the request to admit evidence of nine of these incidents-those involving Bernard herself-but refused to admit evidence of the other 21 incidents-those involving third parties. In so doing, it reasoned that any Cunningham incidents involving Bernard, her mother or their home were relevant to explain Bernard’s state of mind before and after the murder. This state of mind evidence was thought to be relevant to Bernard’s defense that Cunningham actually killed Margaret- that she did not kill her mother but merely accompanied him and helped to dispose of her mother’s body. The trial court found that the incidents involving third parties were inadmissible and were excludable on the ground that they were more prejudicial than probative.[27] (See § 352.) The parties were also barred from referring to Cunningham’s anticipated exercise of his privilege against self-incrimination before the jury.[28]
F. Trial and Sentencing
1. The Prosecution’s Evidence
At the hearing on the motion in limine, Bernard argued that Cunningham’s prior violence made him a more likely killer than she was, making the proffered evidence relevant. Even if the evidence was not admissible under section 1101, she reasoned that due process considerations compelled that this evidence be admitted in order to allow her to defend against the murder charge. The prosecution argued that due process did not make otherwise inadmissible propensity evidence admissible.
Trial began in mid-March 2002. Throughout the trial, Bernard asserted that only two people could have committed the murder. She contended that she was innocent and that Cunningham had killed her mother. Her own actions after Margaret was killed were done under duress, she argued, making evidence of her fear of Cunningham relevant and admissible. The prosecutor reasoned that this defense was inconsistent with Bernard’s initial belief that she had killed her mother. The jury saw and heard a part of a taped statement in which Bernard said that initially, she thought she had killed her mother and acted in the days immediately after Margaret’s death to cover up her apparent crime. During trial, the prosecution and the defense made repeated attempts to persuade the trial court to expand or contract its ruling on the admissibility of evidence of Cunningham’s uncharged conduct, without success.
The prosecution established that Margaret died by strangulation. Her head showed evidence of blunt force applied to it-the result of either a blow or a fall. Her other injuries- including a broken jaw and a broken ankle-also suggested that Margaret struggled before she died. However, the lack of bruises on her neck suggested two possible scenarios-either that Margaret lost consciousness and stopped struggling before she was strangled or that she was strangled with an arm rather than with someone’s hands. A forensic pathologist opined that Margaret fell or hit her head, causing her to lose consciousness before she was strangled. Margaret died sometime after she was last seen alive on April 13 and before her body was found on April 20. Authorities could not determine the exact date and time of death from the physical evidence in this case.
Outside the presence of the jury, Cunningham was called by the defense and questioned about his part in Margaret’s death. He declined to answer these questions, asserting his privilege against self-incrimination. (See U.S. Const., 5th Amend.) He came into court in the presence of the jury and stood beside Bernard for the panel to view him.
A rancher and his partner who lived in Sierra County near Alleghany Ridge Road testified that late one night in mid-April, a strange man and woman appeared at their rural home, saying that they had run out of gas. The two visitors seemed to be high on drugs. The rancher and the man went to siphon some gas into a can while the woman returned to their car to get money to pay for the gas. She was gone for no more than five minutes. Walking back from the car, the woman fell into a creek, injuring her leg. The strange man helped the woman out of the creek; in the process, he fell into the creek, too. The woman did not seem to be afraid of the man she was with. The ranch offered many places for concealment, but she made no attempt to flee. She did not ask for help or indicate in any way that she was being held against her will.
A day or two later, the rancher learned that a torso had been dumped less than 20 miles from his ranch. Hearing this, he wondered if the night visitors were involved in this incident and he called the local sheriff about it. He and his partner later identified Bernard and/or Cunningham from photographic lineups, but the identifications were not particularly solid.
2. Cunningham’s Alibi
Evidence was offered tending to demonstrate that Cunningham had an alibi for the hours when Bernard had told police that he was with her immediately before Margaret died.[29] Annette Hardcastle[30] testified that Cunningham was at her home on Friday and Saturday, April 13 and 14, trying to fix her car. On the afternoon of Saturday, April 14, he made two telephone calls to Bernard from Hardcastle’s house-one lasting about five minutes and another lasting at least an hour. The second call was made about 5:00 p.m. After the second call, Cunningham told Hardcastle that Bernard was fighting with Margaret.
Cunningham asked Bernard to come over to Hardcastle’s house. He left about 6:30-approximately an hour and a half after the second telephone call. Cunningham was upset because Hardcastle did not have money that he asked her to give him. She expected that Cunningham would return the following day when she offered to pay him, but he did not return on Sunday, April 15. Later that evening, Hardcastle discovered her car’s license plates had been removed and left near her house. She noted one of the telephone ca lls to Bernard and the incident involving her license plates[31] on her April 14 calendar. She also noted on her April 15 calendar that Cunningham did not return as she had expected.
Hardcastle told the jury that Cunningham returned to see her a day or two later. On April 18, her calendar noted that she saw Cunningham on the news about Bernard being arrested for killing Margaret. Hardcastle was questioned about how this event could have occurred on April 18, when Bernard was not-in fact-arrested until a week later on April 25. She told the jury that she might have gotten the April 18 date wrong, but denied that Cunningham had asked her to give him an alibi. She had been sought out by police, Hardcastle told the jury- she denied seeking out law enforcement officials to offer Cunningham an alibi.
3. The Defense Case
At the close of the People’s case-in-chief, the trial court denied Bernard’s motion for acquittal. (See Pen. Code, § 1118.1.) Bernard put on numerous witnesses who testified in her defense. Many witnesses who testified that they had known Bernard for many years also told the jury that they did not think that she was capable of murdering Margaret.[32] Bernard also tried to establish that Cunningham struck her, rendering her unconscious during the time when Margaret was killed. She offered evidence of a head injury suffered at that time. The prosecution countered with evidence that at the relevant times, Bernard did not have cuts or bruises that would have been expected if she had been struck on the forehead or temple hard enough to be rendered unconscious.
Bernard also put on evidence that she feared Cunningham and that this fear was reasonable. There was evidence from several witnesses that in the early part of 2001, Cunningham had threatened Bernard, that he frightened her and that she sometimes slept in her car to avoid him. She had been too afraid to leave her car to go to the bathroom, urinating in her pants instead. After she stayed overnight at the home of a male friend, someone slashed two tires on his car. There was evidence that someone had damaged her car, too, raising the specter that Cunningham had retaliated against her. Friends advised Bernard to get a restraining order against Cunningham.
On January 26, Bernard actually pressed charges against Cunningham. He punched his fist through Bernard’s car window while she was locked inside, cutting her face with the broken glass. Bernard’s car was later found with a smashed driver’s side window.
A defense expert testified about his research involving cases of children who kill their parents. He testified that only about 20 of the estimated 20, 000 homicides in the United States each year were killings of mothers by daughters. The expert witness-who was not a statistician-admitted that he was not qualified to offer an opinion about the statistical probabilities of any particular person committing murder.
4. Bernard’s Testimony
Bernard testified in her own defense, offering her explanation of the events surrounding Margaret’s death. In the summer of 2000, Bernard and Cunningham had begun an intimate relationship. Both of them were using methamphetamine. By December 2000 or early in the new year, the relationship became troubled. On January 26, Bernard’s face was cut as Cunningham punched his fist through Bernard’s car window. Cunningham harassed Bernard on the telephone or standing outside the door of the condominium.
Bernard testified that even though she thought she did not want to see Cunningham again, she did continue to be involved with him. During this time, Cunningham was sometimes loving one minute and angry the next. Bernard called the police several times to report things he did around the condominium. In one incident, Cunningham pounded on her front door seeking entry. While she stood inside the metal door, he stabbed a knife all the way through it. The blade protruded through the door into the house about where Bernard stood. On February 5, he forced his way into the condominium and ripped telephone cords out while Bernard was making a call. On a third occasion, the electrical power and telephone lines were cut after Bernard refused to answer the door to him.
Rather than stay at home alone, Bernard would sometimes go to a friend’s house. Cunningham had threatened to burn any unfamiliar car that he saw near the condominium, apparently suspecting that Bernard was seeing someone else. When she got a new car in late January or early February, Bernard slept in it several times with her dog, hoping to catch Cunningham before he set fire to it. Bernard believed that on several occasions Cunningham put glue into the condominium’s door locks. Once, a key had been broken off in the lock.
Cunningham did other things that made Bernard uneasy. One night, Cunningham explained that he knew how to cut up bodies with a chainsaw. Bernard took this as a threat. Another night, after Cunningham had made repeated calls to the condominium, Margaret came home and answered the telephone. She told Bernard that Cunningham had said “You three bitches are dead.” After she received this threat, Bernard said that Margaret wanted to sell the condominium so that they could move.
Bernard only saw Cunningham twice from mid-March until the day when her mother was killed. During this time, Bernard was using methamphetamine three or four times in some weeks, sometimes with Cunningham, sometimes on her own. She told the jury that she still feared Cunningham, whom she claimed was terrorizing her.
Bernard told the jury that on Friday, April 13, her relationship with Cunningham reached a breaking point. Cunningham came to the condominium while Margaret was away and Bernard let him in. She told him that if he really loved her, he would leave her alone. After almost an hour, Bernard had had enough. She began yelling at him, telling Cunningham that she could not stand the sight of him. Bernard told him to get out and not to come back-to take his “little dick” away. She loudly disparaged the quality of their sex life and his manhood. Cunningham left quietly. Soon, Bernard also left, staying out all night on Sherman Island with a man with whom she used drugs.
The next day-Saturday, April 14-Cunningham called the condominium several times. Bernard used methamphetamine and quarreled with Margaret, who wanted her to clean up the condominium. The argument escalated until Margaret threatened to call the police. Early in the afternoon, Margaret left.
In the late afternoon, Cunningham came over while Margaret was out. He brought Yukon Jack whiskey. He was not angry and Bernard wanted a drink, so she let him in. The two of them began drinking, apparently consuming two pints of whisky between them.
When Bernard saw Margaret approach the condominium, she told Cunningham to leave in order to avoid a confrontation. Bernard testified that he had left by the back door before, but this time he did not leave. She told the jury that she was not really bothered by any potential confrontation with Margaret. In retrospect, Bernard suspected that the alcohol and drugs dulled her emotions. When Margaret came in and saw Cunningham, she screamed “What the hell are you doing in my house?” Margaret commanded him to leave.
At the same time, Margaret was arguing with Bernard, blaming her for letting Cunningham into the condominium. Bernard followed Margaret into the kitchen, saying that they were about to leave. However, Bernard was not able to walk or talk very well. Bernard saw Cunningham off to one side, saw something come at her head from the right, and then saw a flash of white light.
The next thing that Bernard could remember, she was on the kitchen floor with Margaret lying beside her. Her arm was under Margaret’s shoulders. Cunningham was kicking her, saying “Look what you did . . . . [Y]ou can’t control your temper.” Seeing that her mother’s fingernails were blue, Bernard assumed that Margaret was dead.[33] She was uncertain what had happened, but assumed that she had killed Margaret.
Bernard had difficulty getting up off the floor, as if she was hung over. Her pants were unzipped and unbuttoned. She heard Cunningham laughing, saying that he took pictures. A camera sat on the table.[34] Cunningham told Bernard that he had sodomized her and that she had enjoyed it. He held a syringe with a plastic cover on it. Still laughing, Cunningham said that he gave her an injection to wake her up.
Sobbing, Bernard made her way to the living room, where she fell on the floor. She did not know how long she lay there listening as Cunningham ransacked the house. When he returned to the living room, he told her that he had given her another injection to wake her up. He told Bernard not to worry-that he intended to help her-but he did not explain his plans to her.
Cunningham asked Bernard to help him remove Margaret’s clothing. She did so, then watched him wrap her mother’s body in plastic. Cunningham put Margaret’s body under a bed after Bernard refused to help him with this.
That night, after dark, Bernard and Cunningham left together in the Fairmont. They stayed overnight at a friend’s home. Neither Cunningham nor Bernard seemed to have slept much that night. She continued drinking. She watched as Cunningham put plastic bags into the car trunk. Bernard did not ask Cunningham for any details about how her mother died.
The next morning-Easter Sunday, April 15-Bernard drove the Fairmont to a store and Cunningham bought alcohol. She dropped him back at the friend’s home and returned to the condominium by herself. Cunningham had told her to go there, cautioning her not to answer the telephone or the door. He intended to come over a few hours later. Bernard did not see it, but she knew that Margaret’s nude body was still where they had left it. Bernard sat all day and did nothing.
After dark on the evening of Sunday, April 15, Cunningham reappeared at the condominium. He brought drugs with him and Bernard took some. When the drugs ran out, Bernard drove Cunningham to get more, which they used later that night back at the condominium. Cunningham told Bernard that he intended to bury Margaret’s body the following day. She found a tent and a shovel to take with them and they provided for her dog, which she would leave at the condominium while they were gone. Bernard could not sleep again that night.
On Monday, April 16, Margaret’s body was still at the condominium. Cunningham placed it in a sleeping bag and dragged it out to the living room. He told Bernard that he had kicked Margaret’s body in the head twice because she pissed him off. He said that he had kicked it hard-that he probably kicked a hole in her head. Cunningham took Bernard’s mountain bike and slammed it onto Margaret’s body as hard as he could. Then, he jumped up and down on the body several times, calling her a “fucking bitch, ” saying that he hated her guts, and complaining that she was heavy. Bernard was frightened by this behavior.
In the morning, Cunningham moved the Fairmont closer to the condominium door. Bernard helped him put the sleeping bag containing Margaret’s body into the car trunk after the local children had gone to school. Cunningham had her drive the car, but told Bernard to pull over after she drove a short distance. He put the car in park mode, set the brake, pulled her key ring out of the ignition, removed the trunk key and returned the rest of the keys to Bernard. He told her to act as if they did not have a trunk key.
Bernard drove to two Wal-Mart stores, where she forged some of Margaret’s checks using her mother’s driver’s license as identification. At Cunningham’s order, she purchased small, expensive items that she could return later for cash. The couple also visited an Albertson’s grocery store, where Cunningham bought potato salad and whiskey. Several times, she had opportunities to escape or seek help, but she did not do so. Bernard told the jury that she could not drive away because Cunningham kept the car keys.
That night, she and Cunningham camped at Sherman Island. Bernard was still having difficulty standing and walking. She told the jury that she almost fell into the campfire as she cooked their dinner.[35] Bernard testified that she did not drink or use drugs that night. By this time, she realized that she had a bump on her head and that she was not thinking clearly. Cunningham gave her something to drink and she finally fell asleep.
The next morning-Tuesday, April 17-Bernard had a hard time waking up. Before leaving Sherman Island, she watched Cunningham burn bags of Margaret’s clothing that had been in the car trunk. Cunningham wanted to go up to a gold mining area in Alleghany. Bernard drove the two of them up toward Lodi. After stopping to get gas, Cunningham went into a Wal-Mart[36] and came out with a machete. Bernard asked what he intended to do with it, but he was silent. She asked if he was going to kill her, but Cunningham did not respond. At one point, Cunningham left Bernard alone for over an hour, but she did not try to escape or seek help. Together, they headed up into the mountains, arriving in Alleghany that night.
Stopping the car after dark, Cunningham pulled Bernard out of the car. She was on her knees, unable to stand. He ordered her to open a plastic bag and then threw something at her. The object hit her and landed on the ground. When Bernard picked it up, she saw that it was a hand.
Bernard dropped the hand and fled into the car. Suddenly, she was unable to see or breathe. Yelling, Cunningham pulled her out of the car on the passenger side by her hair or her head. She ripped at a plastic bag that she discovered was over her head, but it then became wrapped around her neck. On her knees again, Bernard saw Cunningham come up behind her holding an axe over her head. He told her to open up a bag and forced her to look at a foot. A second foot landed on her. Cunningham called her a “fucking bitch” and told her to open the bag.
Bernard was terrified, believing that Cunningham was going to kill her. He wanted a knife, so she returned to the car to look for one. As she handed him a pair of scissors, she saw Margaret’s headless body, which Cunningham apparently kicked down the hill. Bernard told the jury that Cunningham dismembered Margaret’s body-she did not actually see him do it, nor did she do it herself.
Cunningham drove away with Bernard in the car. He was driving like a maniac, sideswiping a guardrail as the car almost went off the road. At Cunningham’s instruction, Bernard took off the bag that was around her neck and she threw it out the window of the moving car. They rode on until the car ran out of gas.
Bernard recounted their stop at the rancher’s home to ask for gas. She testified that she was frightened that Cunningham would kill her, but she did not seek any help or seek to escape, even when she returned to the car to get gas money. Bernard told the jury that while she was at the car, she found a pen, wrote on the seat. She covered the writing with some clothing, found some money in the car and walked back toward the house. Along the way, she fell into some water and was completely soaked, hurting her ankle in the process. She told the jury that Cunningham helped her out, calling her a “stupid bitch” as he did. He was about to hit her when the rancher reappeared. Cunningham left Bernard and the rancher alone while he went to put the gas in the car. Bernard spoke with the rancher, but she was too afraid to ask him for help. Cunningham returned in the car, picked up Bernard and the two of them set off again.
The car ran out of gas again near a freeway in Auburn or Placerville while it was still dark. Cunningham got out of the car, screaming at Bernard that he hated her. He left her in the car for hours with the car keys. She was unable to start the car or to walk. Bernard continued writing on the seat of the car, writing that he had “chopped up my mom, ” going over the words she had written again and again. She covered the seat with a blanket before he returned.
When Cunningham returned to the car, they waited until it got light out on Wednesday, April 18. He walked a few blocks away to get more gas. Bernard followed him briefly, but could not continue walking on her ankle. She was scared of Cunningham and frightened not to be with him, too. When he returned to the car, he discovered the writing on the car seat. Cunningham was angry, so Bernard used mascara to obscure the writing.
They drove off again until they almost ran out of gas in Roseville or Sacramento. Cunningham stopped at a Wal-Mart store where he returned merchandise for cash that he then used to buy gasoline and alcohol. He left Bernard in the car, but again, she did not try to escape or get help. Bernard testified that Cunningham also purchased a 50- or 60-pound bag of cement and a bucket, which he placed on the front seat between them, covering her writing. He told her that he was headed for a place where he would find water. Cunningham did not tell her what he planned to do with this cement, but Bernard was scared that he meant her harm.
After a nap, Bernard woke as Cunningham pulled the Fairmont up to a fruit stand. He left her in the car by herself with the car keys, so Bernard scooted over to the driver’s seat and quickly drove away. Driving along, she recalled how they had heard something rolling around in the trunk, prompting Cunningham to laugh and say “I hope it ain’t her head.” About 10 miles away from the fruit stand, Bernard stopped the car by an orchard and looked in the truck. Margaret’s head was lying inside. Bernard emptied the trunk of its contents, including the head.
Bernard guessed that she was so intoxicated that she was numb at this time. She told the jury that she started driving away from the orchard, using her sore foot to propel the car. She almost crashed into a tree when she kicked the 50- or 60-pound bag of cement out of the passenger door of the car with her right foot.[37] She also threw the bucket out. After driving to a more urban area, Bernard stopped the car, parked in a Vallejo shopping center parking lot and called for help. She finally reached Barton, who met her in Vallejo.
At trial, Bernard repeatedly denied killing Margaret-at least, she stated that she believed that she had not killed her mother. She told the jury that originally, she believed that she had killed her mother, because Cunningham had convinced her of this. She thought that he had taken photographs of her killing Margaret with which he intended to blackmail her. Bernard denied having any difficulty keeping her temper under control, [38] even when using methamphetamine.[39]
Bernard admitted that at the time that Margaret died, she was intoxicated from alcohol and drugs. The use of alcohol and drugs resulted in slowed reflexes, poor judgment, a loss of perception, and a decreased ability to think or reason clearly. During the days between Margaret’s death and her escape from Cunningham, Bernard did not have her wits about her. When she spoke with Larissa after meeting up with Barton, she made her first coherent attempt to set out what had happened. At that point, she first realized that Cunningham hit her. She began to suspect that she did not ...

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