People v. Koontz

• Decision Date: 09 May 2002
• Docket Number: No. S036450.,S036450.
• Citation: 27 Cal.4th 1041,119 Cal.Rptr.2d 859,46 P.3d 335
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Herbert Harris KOONTZ, Defendant and Appellant.

119 Cal.Rptr.2d 859

27 Cal.4th 1041

46 P.3d 335

The PEOPLE, Plaintiff and Respondent, v. Herbert Harris KOONTZ, Defendant and Appellant.

No. S036450.

Supreme Court of California.

May 9, 2002.

Rehearing Denied July 17, 2002.

Certiorari Denied January 13, 2003.

Richard Power, Shingle Springs, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stephen G. Herndon, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied January 13, 2003. See 123 S.Ct. 881.

WERDEGAR, J.

Defendant was convicted of the first degree murder of George Martinez with jury findings that he had used a firearm in the commission of the crime and that the murder was committed while he was engaged in the commission or attempted commission of a robbery. (Pen.Code, ?? 187, 12022.5, subd. (a), 190.2, subd. (a)(17)(A); unless otherwise specified, all further statutory references are to the Penal Code.) Defendant was also convicted of second degree robbery, kidnapping for the purpose of robbery, and vehicle taking, all with the finding he had used a firearm in the commission of the crimes (?? 211, 209, subd. (b), 12022.5, subd. (a); Veh.Code, ? 10851), and petty theft with a prior C? 666). Defendant admitted having suffered two prior serious felony convictions and having served four prior prison terms. (?? 667, subd. (a), 667.5, subd. (b).) Following the jury's return of a death verdict and the trial court's denial of defendant's automatic motion to modify the verdict (? 190.4, subd. (e)), defendant was sentenced to death for the murder conviction, imprisonment for life for the kidnapping for robbery conviction, and an aggregate determinate term of 21 years' imprisonment; both the indeterminate and the determinate terms were to be served consecutively to the sentence for murder. This appeal is automatic. (? 1239, subd. (b).)

The judgment is affirmed.

I. FACTS

A. Guilt phase

1. Petty theft at F.W. Woolworth

About 3:00 p.m. on November 19, 1992, Donald Gallagher was working as the assistant manager of the F.W. Woolworth store at 1000 K Street in downtown Sacramento. While conversing with the store manager near the front of the store, Gallagher heard the security alarm sound, signifying that someone had attempted to leave the store with an inventory item still retaining the magnetized tag that is normally demagnetized at the time of purchase. Gallagher approached defendant, who, after having set off the security device, had stepped back inside the store, and asked him if he had purchased anything that might have set off the alarm. Defendant denied having done so. Gallagher asked to look inside the plastic Payless bag defendant was carrying; defendant consented. Inside the bag Gallagher saw several items bearing Woolworth's tags, including a jar of coffee, a hair trimmer set and an umbrella, along with some items not from Woolworth.

The store manager asked defendant if he had a receipt for the Woolworth's items in his bag. Defendant replied in the negative, but said he had purchased them earlier in the day and had just returned to the store. Defendant claimed he had paid for the items at register No. 9. Store personnel checked the day's detail tapes for that register, as well as the previous day's tapes, but found no entry corresponding to the $12.99 hair trimmer set in defendant's bag. Police were summoned, and defendant was cited and released on his promise to appear.

2. Crimes at Volunteers of America apartments

a. Prosecution evidence

On December 23, 1992, McLean Currie worked the graveyard shift as a security monitor at the Volunteers of America Independent Living and Readiness Pilot Project (the Project) at 254 Cleveland Avenue in Sacramento. The aim of the Project was to take persons, many of them drug addicts and alcoholics, from nonfunctional environments and prepare them for life in mainstream society. Participants resided in two-bedroom apartments; defendant and the victim, George Martinez, shared apartment 9.

Between 5:00 and 5:15 a.m. on that date, Currie, who worked from an office located in apartment 5, saw Martinez enter the office and noted his entrance in the logbook. Soon thereafter, defendant followed Martinez into the office. Currie, who was not acquainted with defendant, asked who he was. Defendant replied, "My name's Herb." Currie noted his entrance in the logbook. Defendant and Martinez went into the kitchen of apartment 5, which served as a common area for Project participants, and Currie heard "low talking." Martinez came out of the kitchen and walked back down the hall toward Currie's office with defendant following him. Defendant said, "Let's go back to the apartment, we can figure this out." Martinez said, "No, I don't want to go."

Martinez and defendant walked back and forth in the hallway several times. Finally, Martinez entered the office; defendant stood in the doorway. Currie realized there was some problem between the two men: Martinez appeared scared, and defendant looked irritated. Currie asked what was going on. Martinez said, "I don't have to put up with this shit this early in the morning." Currie asked what he was talking about. Defendant said, "I got a little gas." Currie asked the two men to sit down. When neither moved after 30 seconds to a minute, Currie took out a red incident folder and told them that if they did not help him resolve the problem, he would have to write an incident report. Defendant said, "All right, I'll settle it." Defendant entered the office, locked the door, pulled a handgun from the waistband of his pants and demanded Martinez's car keys. Martinez shook his head. Defendant then shot Martinez in the abdomen and said, "Goddamn Mexican's been bugging me ever since I have lived here." Martinez fell backward into a chair in the office. Defendant again asked Martinez for his car keys; Martinez said he did not have them.

Currie wanted to call an ambulance for Martinez. Still holding the gun in his hand, defendant answered: "Shut the fuck up. We are doing things my way now." He drew another gun from the waistband of his pants, saying he had five more rounds in the gun he had used to shoot Martinez, and the other was loaded. As Currie was about to call an ambulance, defendant told him to pull the phone out. Currie pulled the phone to the edge of the desk. Defendant grabbed it by the cord, ripped it out of the wall, and threw it onto Martinez, saying, "Let him call."

Defendant asked if Currie had a car in the parking lot. Currie said he did, to which defendant responded, "Give me your keys." Currie retrieved his keys from his jacket pocket and placed them on the desk. Defendant asked which keys unlocked the car and started it; Currie gave him the information and told him it was necessary to push a button underneath the steering column. Defendant said, "That's not going to work." He told Currie they were going to get Martinez's keys and directed him to get up from the desk and walk to defendant's apartment.

Defendant and Currie walked the 25 to 35 yards down the sidewalk from the office to apartment 9. Still brandishing a gun, defendant directed Currie to enter, and Currie complied. Defendant told him to wait in a corner of one of the bedrooms. Defendant pulled out a knapsack and laid it on the bed. He began to pull clothes from the closet; Currie packed them into the knapsack. When Currie finished packing, defendant told him they were going to look for George's keys. They then went into the other bedroom. While Currie stood in the corner of the room, defendant searched for the keys. Not finding them anywhere, defendant said, "George must have the keys on him."

Still holding a gun, defendant walked behind Currie back to apartment 5. There, Martinez was lying prone in the same position as when they had left. Defendant instructed Currie to search Martinez's pockets for the keys. Currie found them in a pocket of Martinez's coat. Currie found no weapons on Martinez, who by this time was silent. Currie handed the keys to defendant, who said, "No, you're going to come out and start the car." Defendant and Currie then walked out to the parking lot.

Currie got into Martinez's car and eventually succeeded in starting it. He backed the car out of the parking space and, at defendant's direction, turned the headlights on. After Currie scraped some ice off the windshield, defendant got into the car and drove away.

Meanwhile, Robert Edwards was coming out of apartment 6 on his way to work, when he heard someone calling for help. As he approached apartment 5, he realized the person calling out was inside. Edwards entered and found Martinez lying on his back at the entrance to the family room with a Christmas tree pulled over on top of him. Martinez asked Edwards to call 911; Edwards did so and reported that Martinez, who was holding his chest, may have suffered a heart attack.

After ending the phone call, Edwards returned to Martinez, who had passed out. Edwards administered cardiopulmonary resuscitation (CPR). He smelled no alcohol on Martinez's breath. When Martinez regained consciousness, Edwards asked him what had happened. Martinez said he had been shot by his roommate. Opening Martinez's shirt, Edwards saw a bullet hole in his abdomen. Edwards went outside to seek help and saw Currie returning to the office from the parking lot. A car, which Edwards recognized as Martinez's, was driving out of the lot. Currie told Edwards to get back inside, as the man in the car had a gun.

Currie and Edwards returned to apartment 5. Martinez asked Currie for a glass of water; Currie and Edwards helped him sit up. After Currie left to get the water, Martinez fell over. Edwards again administered CPR. A few minutes later, fire department emergency personnel arrived and began to treat...