People v. Martinez

• Decision Date: 22 June 1978
• Docket Number: Cr. 3093
• Citation: 147 Cal.Rptr. 208,82 Cal.App.3d 1
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Rudy MARTINEZ, Defendant and Appellant.

Page 208

147 Cal.Rptr. 208

82 Cal.App.3d 1

The PEOPLE, Plaintiff and Respondent, v. David Rudy MARTINEZ, Defendant and Appellant.

Cr. 3093.

Court of Appeal, Fifth District, California.

June 22, 1978.

Hearing Denied Aug. 31, 1978.

Carl B. Shapiro, San Anselmo, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Joel E. Carey, Robert D. Marshall and Paul V. Bishop, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

On May 2, 1975, an amended information was filed in the superior court charging appellant with the following crimes: count I, violation of Penal Code section 209, kidnapping for the purpose of robbery where the victim suffered bodily harm, to wit, death; count II, violation of Penal Code section 261, subdivision 2, forcible rape; count III, violation of Penal Code section 211, robbery; count IV, violation of Penal Code section 187, murder. It was also alleged that during the commission of counts I through IV, appellant used a firearm in violation of Penal Code section 12022.5. It was further alleged, under former Penal Code section 190.2, subdivision (b)(3), that the murder was willful, deliberate, and premeditated and was committed during the commission of kidnapping, rape, and robbery. As an additional special circumstance, it was also alleged, under former Penal Code section 190.2, subdivision (b)(4), that appellant had suffered a prior conviction for murder. ¹

On June 13, 1975, appellant filed a motion for a change of venue pursuant to Penal Code section 1033, subdivision (a); the motion was denied. On July 2, 1975, a petition for writ of mandate was filed in this court seeking to compel the superior court to grant a change of venue; that petition was summarily denied by minute order without opinion (Martinez v. Superior Court (July 14, 1975) 5 Civ. 2664).

On September 8, 1975, the matter came on for jury trial. On October 10, 1975, the jury returned a verdict finding appellant guilty of all counts charged in the information. The jury further found that the murder (count IV) was of the first degree and that appellant had used a firearm during the commission of counts I, III, and IV, but not during the commission of count II.

On October 14, 1975, a hearing was held on the alleged special circumstances. Appellant waived a jury trial on that issue; it was stipulated and the jury found, that appellant had suffered a prior conviction for murder in the second degree (former Pen.Code, § 190.2, subd. (b)(4) ). The court also found that the instant murder was committed during the commission of robbery, kidnapping, and rape (former Pen.Code, § 190.2, subd. (b)(3) ). Thereafter, the court ordered that appellant be sentenced to death. Sentence on counts I, II, and III were suspended.

On October 14, appellant moved for a new trial on the grounds, among others, (1) the trial judge was prejudiced against him because during the trial he expressed the opinion that appellant was guilty and (2) the jury was guilty of prejudicial misconduct in taking maps into the jury room which had not been received in evidence. The motion for a new trial was denied.

STATEMENT OF THE FACTS

Although appellant does not challenge the substantiality of the evidence to support his convictions, in light of the contentions that prejudicial error was committed during the trial it is necessary to recite the facts in some detail.

In midsummer of 1974, appellant, his brother Tommy Martinez, his sister-in-law Catalina Martinez, Abel Ramirez, Ramirez' girl friend, and several of the Ramirez children, were vacationing together. The group toured Yosemite and Sequoia National Parks, finally arriving in the vicinity of Lake Isabella in the Kern River Canyon area on August 5, 1974. The Ramirez and Martinez families made camp that first night at approximately 6 p. m. near Hobo Hot Springs in the Kern River Canyon.

The next day, August 6, 1974, appellant and Abel Ramirez argued about appellant's having furnished beer to one of Ramirez' minor children. The upshot of the argument was that appellant, who had been drinking and smoking marijuana, threatened to leave the camp. Appellant did leave in the evening. Appellant took with him a knapsack and Tommy Martinez' .25-caliber Titan pistol.

At approximately 10 p. m. on August 6, Don Weghorst, while driving eastbound, picked up a male hitchhiker on Kern Canyon Road in the Kern River Canyon about 10 to 12 miles west of Hobo Hot Springs. Weghorst continued eastbound past Hobo Hot Springs, took the hitchhiker to the Town of Isabella, and dropped him off shortly after 11 p. m. about two blocks from the Kern River Valley Review Newspaper. The hitchhiker was described by Weghorst as "oriental" and carrying a small satchel.

On the night of August 6, the victim, Joan Peart, was at the office of the Kern River Valley Review Newspaper in the Town of Isabella. It was press night and the entire staff was working late in an attempt to publish the weekly paper. At approximately 11:30 p. m., Ms. Peart left the newspaper to go home to run an errand. She borrowed the car of Mr. Quinn, the owner and publisher of the newspaper. Quinn's car was a 1970 Oldsmobile (license CQU 135). Ms. Peart left the newspaper office with the keys to the car.

In the very early hours of the morning of August 7, Nancy Hall and her mother and stepfather, Ruth and William Cusson, were driving from Bakersfield to Lake Isabella via the Kern River Canyon Road. At approximately 12:30 a. m., shortly after they had entered the canyon near a place called Rocky Point, Hall and the Cussons noticed a young woman staggering up the bank from the river. When the woman waved for William Cusson to stop, he pulled over to offer assistance.

The young woman identified herself as Joan Peart and said, "I've been beaten, I've been raped and he stole my car." She kept repeating her story about being beaten and raped; she described her assailant as being "oriental." Ms. Peart was bleeding from her head, mouth and legs and appeared to be in shock. She also continued to mumble that her assailant had stolen the car.

The Cussons placed Ms. Peart in the rear of their car and attempted to stop the bleeding while transporting her to a hospital. After the family came through the Kern River Canyon, they came upon a fire station where there was an ambulance. They awakened the firemen, and Ms. Peart was transferred to the ambulance and then taken to the Kern Valley Hospital.

Once at the hospital, Ms. Peart was examined by Dr. Jamie Lee Ho who discovered that she had been shot through the left thigh with the bullet ultimately lodging in the right thigh. It was also determined that she had been shot in the neck at approximately the level of the second vertebra. Due to the seriousness of Ms. Peart's condition, she was transferred to Mercy Hospital in Bakersfield. After arriving in Bakersfield, Ms. Peart was placed in the intensive care unit but her condition continued to deteriorate until she died early in the afternoon of August 7, 1974.

On the evening of August 7, appellant was confronted by security guard Artis Battle at the East Ridge Shopping Center in San Jose. Appellant was suspected to attempting to pass phony or stolen credit cards and was detained by Battle in the parking lot. Upon demand appellant surrendered the suspect cards but pulled a gun and then ran off. The pistol brandished by appellant was described as similar to Tommy Martinez' .25-caliber Titan.

On August 8, Kern County Deputy Coroner and Pathologist Dominick Ambrosecchia performed an autopsy on Joan Peart. Two bullets were retrieved from Ms. Peart's body and were identified as .25 caliber copper-jacketed lead projectiles. In the pathologist's opinion, Ms. Peart's death was caused from multiple gunshot wounds involving the two projectiles removed from her body.

Also, on August 8, at approximately 6 a. m., Officer Douglas M. Canning of the Santa Clara County Sheriff's Department discovered Mr. Quinn's 1970 Oldsmobile in a parking lot at 24th and Williams Streets in San Jose. In the back seat of Mr. Quinn's car, among other things, were found hair samples that were similar in color, size, curl, texture, scale pattern, shape and pigmentation as those taken from the head of appellant.

Three or four days later, on approximately August 11th or 12th, Tommy Martinez returned to his home in San Jose where he found his brother, appellant. Tommy asked appellant what had become of his pistol; appellant revealed that he had taken it for protection when he left the camp. Tommy Martinez then retrieved the gun from appellant and placed it on an upper shelf in his closet. Tommy Martinez also testified that he noticed a plaque in his home that arrived at approximately the same time his brother did. He also testified that when his brother arrived at his home he brought a suitcase with him.

On October 15, 1974, apparently in connection with the investigation of another crime committed by appellant, Officer John Davis Bartholomew of the San Jose City Police Department went to the Tommy Martinez home. Officer Bartholomew conducted a consensual search of the home. As a result of that search, the officer discovered a suitcase, a plaque, and Tommy Martinez' .25-caliber Titan brand pistol with a box of shells. The suitcase and the plaque found in Tommy Martinez' home were subsequently identified by Mr. Quinn as having been in his automobile the night that it was stolen.

The .25-caliber Titan pistol found in the Tommy Martinez home was test fired and a ballistics expert testified that it was the gun which fired the fatal bullets into the body of Joan Peart.

On January 28, 1975, Officer Neil Gereke of the Kern County Sheriff's Department tape recorded a conversation Tommy and Catalina Martinez had with appellant...