The California Supreme Court today upheld the death sentence of a previously convicted triple murderer who fatally stabbed a fellow inmate at Salinas Valley State Prison in Soledad in 1997.
Kenneth Bivert, 41, of Yolo County, was sentenced to death in Monterey County Superior Court in 2001 for murdering inmate Leonard Swartz, a convicted child molester, with a hand-made knife.
Another prisoner testified at the trial that Bivert had said that Swartz, as a child molester, “didn’t belong on the face of the earth for what he did and he needs to be dealt with.”
The inmate said Bivert, an alleged white supremacist, told him it was his mission while in prison “to take care of the scum such as that” and that he believed in “the white race taking care of their own.”
At the time of the stabbing, Bivert was serving a prison sentence of 52 years and 8 months to life for murdering three people within a three-day period in Yolo County when he was 17.
The three victims were fishing on the Portuguese Bend, a slough on the Sacramento River northwest of Sacramento.
Bivert and a friend, Anthony King, shot Steve Patton on Sept. 6, 1987, and stole his truck. Two days later, they shot Raymond and Dawn Rogers and stole their car.
Bivert pleaded guilty to the murders. King was convicted separately at a trial and sentenced to 52 years to life in prison.
The state high court, in a decision issued in San Francisco, unanimously upheld Bivert’s death sentence for Swartz’s murder.
The panel rejected Bivert’s claims that the jurors should not have been told about his alleged white supremacist leanings and that the jurors were unfairly prejudiced by being told of the murders he committed as a juvenile.
Bivert argued in the appeal that the jury’s choice of a death sentence, rather than life in prison, may have been based on his actions in the three earlier murders.
But the court said that under California case law, the jury was permitted to consider his juvenile crimes during the penalty phase of the trial, and that there was no proof that the jury was unfairly influenced by those crimes.
Justice Kathryn Werdegar wrote, “The jurors may well have regarded the capital crime itself–the premeditated, unprovoked killing of a fellow inmate by a life prisoner–as egregious enough to warrant the death penalty.”
Bivert’s lawyer in the appeal, Warren Robinson, said he plans to appeal to the U.S. Supreme Court, citing a 2005 decision in which the court said it is unconstitutional to impose a death penalty for crimes committed when a defendant was under the age of 18.
“I thought the argument had some appeal,” Robinson said. “Although the California Supreme Court disagreed, maybe the U.S. Supreme Court will see things differently,” he said.
Julia Cheever, Bay City News