ORANGE : Murder Conviction Upheld by Court

A 38-year-old Orange man twice convicted of murder and twice awarded new trials in the 1979 death of his 2-year-old stepdaughter lost his latest bid for freedom Tuesday when the state Supreme Court upheld his conviction.

The Supreme Court reversed a decision last year by the 4th District Court of Appeal in Santa Ana, which had ordered a new trial for Leland Roy Dellinger for the second time.

Dellinger, unable to make bail even after his two appellate court victories, has remained in either jail or prison since his arrest nine years ago.

Dellinger was convicted of first-degree murder in 1981 for the May 29, 1979, beating death of Jaclyn C. Zilles, the daughter of Diane Pena, who was married to the defendant at the time. Dellinger had been in the process of adopting the child.

Doctors testified for the prosecution that both a head injury and ingestion of cocaine were contributing factors in the girl’s death. Dellinger testified that he was in the kitchen at the time and heard a noise and that he then found the toddler at the bottom of a set of seven carpeted steps.

The original autopsy after the incident listed the girl’s death as accidental. However, after a toxicological report three months later showed the child had ingested cocaine, a second autopsy was ordered. The pathologist’s ruling this time was that the death could not have been caused by such a fall, and Dellinger was arrested.

After his conviction, Dellinger won the next two court rounds: Superior Court Judge James F. Judge reduced the jury’s verdict to second-degree murder, reducing Dellinger’s automatic penalty from 25 years to life to 15 years to life. Then in 1985, the 4th District Court of Appeal reversed his conviction and ordered a new trial.

The justices ruled that prosecutors had used an unscientific re-creation using mannequins to convince the jurors that the child’s injuries were the result of violent acts by the defendant.

Prosecutors decided to retry Dellinger, and in 1986 he was convicted by a new jury of second-degree murder. Then in 1988, the 4th District Court of Appeal again reversed his conviction. This time the court ruled that the trial judge had given jurors a confusing instruction on “implied malice”--a factor necessary in second-degree murder. The appellate court found that the jurors’ interpretation of the law on “implied malice” was so critical it should have been made more clear.

But the state Supreme Court, in a 6-1 opinion, ruled that the jurors had been adequately informed.

“Mr. Dellinger had been very optimistic after that second appellate court reversal,” said Rick Sireff, his appellate attorney from San Diego. “It’s going to be tough to break this news to him.”

Dellinger has been in prison so long that he has already reached his first parole hearing, which was denied. He is due for another hearing in 1990.

The child’s mother, no longer married to Dellinger, could not be reached for comment.