Kenneth Allen Rogers, 52, was convicted last summer of conspiring with an employee, Richard Peacock, to kill Alan Simon on June 17, 2005, in Westport. Since the shooting Rogers had moved to Lake County, as Lake County News has reported.
Last Friday, Mendocino County Superior Court Judge Ron Brown denied Rogers' motion for a new trial, denied probation and sentenced Rogers to a state prison term of 25 years to life for conspiracy to commit first-degree murder and attempted murder with special findings of willfulness, deliberation and premeditation, according to a report from the office of Mendocino County District Attorney Meredith Lintott.
Rogers will not be eligible for parole until he has served a full 25 years in prison.
“Everyone can sleep better knowing a very violent criminal has been sentenced,” Simon said.
On July 22, 2009, a Mendocino County jury of eight women and four men in Ukiah convicted Rogers of conspiracy to commit first-degree murder, and attempted first-degree murder, in the 2005 shooting of Simon, then 53.
Simon had replaced Rogers on the Westport County Water Board in an August 2004 recall election and had then voted to fire Rogers as assistant fire chief.
The evidence at trial showed that Rogers at the time of the shooting was chairman of the Mendocino County Republican Party, and that he viewed these setbacks as hurtful to a political career in Sacramento.
The shooting occurred at 10:26 p.m. on a Friday night, when Peacock, after knocking on the front door of Simon's residence, shot through it nine times.
Simon dove to the floor, resulting in his being grazed by a bullet in the forearm and scalp. He was able to remain conscious and give the 911 dispatcher a description of the shooter's vehicle, a white Miata convertible with unique damage to the left front fender.
The next day Peacock, then a 54-year-old resident of Sacramento and an employee of Rogers with a long criminal record, was arrested in Laytonville.
In September 2006, Richard Peacock was tried and convicted for attempted murder. Because of Peacock's having “three strikes,” he was sentenced to 71 years to life.
Tim Stoen, the deputy district attorney prosecuting Rogers, called a variety of witnesses to establish guilt by circumstantial evidence.
The evidence showed that the gun discarded by Peacock had been in the possession of Rogers, that Rogers had a photo of Simon's house on his digital camera, that Rogers was so angry with Simon that “spittle was flying” at the mention of his name, and that Peacock did not know Simon and had no connections to Westport.
After the trial – in which Rogers had been represented by Lakeport attorney J. David Markham – Rogers hired new defense counsel, Kenny Giffard, from Sacramento.
On March 26, prior to rendering judgment and sentence, Judge Brown conducted a hearing on Giffard's motion for a new trial, which was based primarily on the allegation of “ineffective assistance of counsel.”
Giffard contended that Markham had made a prejudicial mistake in asking a question he did not know the answer to in advance, and had improperly advised Rogers not to testify on his behalf.
At the hearing Mr. Markham testified there was a tactical reason for asking the “blind” question so as to show Rogers was not the “loose cannon” the prosecution contended him to be. Markham also testified he had advised Rogers of his right to take the witness stand, but had recommended he not do so.
Markham said he had made that recommendation based on 22 hours of meetings with Rogers, during which he determined Rogers was unable to adequately explain important evidence, made incriminating statements with unawareness of their effect and came across as unbelievable.
Markham, who is certified by the California State Bar as a criminal law specialist, further testified he was able to keep away from the jury photos of Miracle-Gro next to water pipes in the water district headquarters which the prosecution contended showed the stealing of public water to irrigate pot plants, and was able to keep away from the jury a flier allegedly circulated by Rogers saying “Heil Simon.”
Rogers also testified at the hearing. He denied having anything to do with Simon's shooting and contended Markham had been ineffective as his counsel.
Judge Brown, who had presided over the trial, ruled that Giffard had not met his burden to show ineffectiveness of counsel and denied the motion for a new trial.
Stoen argued that probation should be denied for a number of reasons, including the sophistication of the crime.
“This was almost the perfect crime,” Stoen said. “Alan Simon is shot in his own house, separated from other houses and in a rural area, at 10:30 at night. Nine bullets go through his door … If it were not for the providential act that he ducked, he would have been killed. His body would not have been discovered until 8 a.m. or so the next day at the earliest. By then the shooter, Richard Peacock, would have been long gone from Mendocino County to his home in Sacramento, and the gun would have been thrown into the Sacramento River.
“Nobody would have remembered Richard Peacock being in Westport on the day of the shooting, since he came at night, so as to be able to identify him as the shooter,” Stoen continued. “And Kenneth Rogers would have relaxed on his property, having formulated an intent to kill and having sent his lackey to do the killing, with no physical connection to any of the empty cartridges on Alan Simon's front lawn. That, your Honor, is how close we came to have a murder on our hands which would never – repeat never – have been solved.”
Based on the probation officer's recommendation, Judge Brown denied probation. Following the Penal Code's required sentence for conspiracy to commit first degree murder, Judge Brown sentenced Rogers and remanded him into the custody of the California Department of Corrections.
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