Charge of Murder Refiled in Stabbing : Courts: Prosecutors will again pursue a murder charge against woman who killed and buried husband.

TIMES STAFF WRITER

The San Diego County District Attorney's office has refiled a murder charge against Kimberly Delon, the Solana Beach woman who said she stabbed her husband to death in self defense and then buried his body in their front yard.

"She's guilty of first-degree murder," Deputy Dist. Atty. Ann Barber said Tuesday. "I assume the public has an expectation that when you dig a grave the day before (the killing), back-stab your husband and bury his body in a hole that's pre-dug, we will prosecute."

Delon, 34, pleaded innocent Tuesday at her arraignment in Vista Superior Court to the accusation that she murdered Bernard Delon, her husband of five years. She remains free on bond.

Delon's defense attorney, Charles Goldberg, said he would file a motion to have the new murder charge dismissed.

When the motion is filed, Supervising Superior Court Judge Ronald Praeger will review the transcripts of Delon's preliminary hearing and decide whether Delon should stand trial for murder--as prosecutors want--or on charges no greater than manslaughter, which was the ruling by Vista Municipal Judge Donald Rudloff last month.

Rudloff held that even though the prosecution decided what charges Delon should face, he found that Delon didn't have malice aforethought, a necessary legal ingredient to murder charges. At most, he said, Delon should face manslaughter charges.

Goldberg said Praeger would be required by law to abide by Rudloff's earlier decision, and dismiss the murder charge, unless he can find fault with the municipal judge's ruling.

A conviction on first-degree murder with the use of a knife carries a prison term of 26 years to life. If convicted of manslaughter, Delon could face a maximum of 12 years in prison--or be released on probation.

Barber said her office feels strongly that Delon, a onetime ballerina who met her husband while on a dance tour through South Africa, is nothing less than a murderer.

"If she wasn't guilty of murder, our office wouldn't charge it," she said.

The prosecution alleges that Delon decided to kill her husband, dug a grave in a garden plot in the front yard of the couple's home, contrived a story for a neighbor about how her husband was going to go to France, then stabbed him while he lay asleep in bed last August.

She then buried him in the grave she had dug earlier and made up phony reasons for the blood in her house before calling police a day later, at the behest of her mother, the district attorney's office asserts.

Delon claims she was being choked in bed by her hot-tempered husband, who was angry at her for embarrassing him in front of his mother, and used a knife she had hidden beneath her mattress to ward off burglars to defend herself against her spouse.

In panic, she said, she buried his body in the garden so it wouldn't be seen by the couple's two children, but all along planned on calling police.

Goldberg said he wasn't surprised by the district attorney's decision to again seek a murder conviction.

"The law allows the district attorney to file any charges in Superior Court that they think the evidence substantiates, and we will attack the substance of those charges because, as Judge Rudloff found, there just isn't probable cause" to charge Delon with murder, according to Goldberg.

"The judge is required to accept the findings of fact by the magistrate, which are completely in our favor, unless he finds the judge was clearly wrong," Goldberg said. "The prosecutor is being overzealous in her pursuit of this."

The district attorney's office also charged Delon with the lesser charges of voluntary manslaughter, involuntary manslaughter, spousal abuse and assault with a deadly weapon, which--along with innocence--are possible verdicts a jury can make when it goes to trial.

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