Charge Raised to Murder for Solana Beach Woman

Solana Beach housewife Kimberly Delon must face charges of first-degree murder rather than manslaughter for killing her husband and then burying his body in the couple’s front yard last August, a Superior Court judge ruled Wednesday.

The decision overturns Vista Municipal Judge Donald Rudloff’s ruling last November that the district attorney’s office contended was fraught with mistakes. Rudloff pronounced, at the conclusion of Delon’s preliminary hearing, that the woman didn’t show malice when she stabbed her husband five times. At most, he said, Delon was guilty of manslaughter.

Delon’s attorneys had argued that the 34-year-old woman struck out in self defense, stabbing her husband as he attacked her during a temper tantrum. The stabbing was a response to a five-year marriage marked by physical, emotional and verbal abuse, her attorneys said.

But the San Diego County district attorney’s office contended that Rudloff had erred in his decision, and that there was clear and convincing evidence of malice--a requisite for first-degree murder.

Prosecutors refiled the murder charges, and the defense balked, triggering a hearing in Superior Court. On Wednesday, Vista Superior Court Judge Thomas Whelan said that, after reading the transcripts of the hearing, he agreed with prosecutors.

Deputy Dist. Atty. Ann Barber argued that Rudloff “made some incredible mistakes” in deciding that Delon didn’t show malice when she killed her husband of five years.

“It’s clear in his legal analysis that he’s made assumptions about evidence that was never submitted,” Barber said. “His analysis is obviously incorrect. He obviously didn’t listen.”

Barber argued, for instance, that a key prosecution witness saw Delon “vigorously” digging up the garden plot a day before she killed her husband, Bernard Delon, and later, to cover for her husband’s absence, said he had returned to his native France.

Additionally, Barber said, the kinds of stab wounds sustained by Bernard Delon could not have occurred in the scenario offered by the defense.

Whelan conceded that the case was unusual, especially given Kimberly Delon’s cooperation with police and later in an in-depth interview with Barber after she already had been charged with the crime.

But Whelan said the law requires the presumption of malice, and that it’s up to the defense to show there was no malice in the killing. “The facts support the minimum of implied malice,” Whelan said after reading the transcripts of the preliminary hearing.

He said Rudloff made “ambiguous findings” that Whelan, under review, could not independently support. “I can’t find that the lack of malice was incontroverted,” Whelan said.

Therefore, he said, he was obliged to allow the district attorney’s office to refile first-degree murder charges against Delon.

Charles Goldberg, Delon’s attorney, said afterward that he would appeal Whelan’s decision “and explore other means to find a way to get Rudloff to better explain his findings” so his decision can be substantiated.

“It took a lot of guts for Rudloff to make his decision at the time, but he tried to make the prosecution feel good by explaining his decision. And he was confused,” Goldberg said. “He made gratuitous remarks to the prosecution, but in explaining his ruling, he wasn’t as clear as he should have been. That’s too bad.”

Goldberg said that, despite his disappointment and his promise to appeal Whelan’s ruling, “it’s easier to defend Kimberly of first-degree murder because that charge, on the face of it, is so incredible.”

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 be sentenced to a maximum of 12 years in prison--or be released on probation.

Her trial is scheduled to start in May, and she remains free on bail.