Court: Superior County: Kern, Super. Ct. No. 57167 Judge: Lee Phillip Felice
Peter R. Hensley, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen, Kathleen A. McKenna, Leslie W. Westmoreland and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Peter R. Hensley, Sarah J. Jacobs Deputy Attorney General
A jury convicted defendant Charles F. Rountree of the first degree murder of Diana Contreras under the special circumstances of kidnapping- and robbery-murder; of kidnapping her to commit robbery; and of robbing her. It also found that he personally used a firearm in committing each crime. (Pen. Code, §§ 187, 190.2, subd. (a)(17), 209, subd. (b), 212.5, subd. (b), 12022.5, subd. (a).) After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. The Facts
A. Guilt Phase
The evidence showed that on December 9, 1993, defendant and his girlfriend (soon to become wife), Mary Elizabeth Stroder, kidnapped 19-year-old Diana Contreras from a Bakersfield shopping mall, robbed her, drove her to a remote location, and shot her to death. They were arrested a few days later in Kansas while driving Diana’s car.
2. The Evidence
On the morning of December 9, 1993, Diana Contreras went to the Valley Plaza mall in Bakersfield in her red 1992 Eagle Talon. A security officer saw a woman matching her description with a red car between 9:00 and 9:40 a.m. According to business transaction records, she withdrew $20 from an ATM at the mall at 8:55 a.m. and made various purchases between 10:15 and 11:15 a.m. Diana had been scheduled to babysit at a sister’s house beginning at 1:30 p.m. that day. But she never appeared. Her family became concerned because it was unlike her to miss or be late to an appointment like that. They tried but failed to find her.
Oil company workers discovered Diana’s body lying face up the next morning in a rural spot about two to two and half miles from the town of Taft. The body was in a field, about one quarter of a mile to 500 yards from Airport Road, a road often used by oil field workers. A busier road was about 1.6 miles away. Four expended cartridge cases were found near the body, about 10 feet from the feet.
An autopsy revealed that Diana had died of three gunshot wounds. Among other injuries, her heart had been “destroyed.” Death would have occurred either instantaneously or within seconds. The nature and direction of the wounds indicated that one shot was fired when she was standing, and the other two came from near her feet after she fell to the ground. The physical evidence indicated that she was shot from very close range. It also indicated she was holding something, perhaps her purse, when she was shot. One bullet went through what she was holding.
Bank records showed that at 11:36 a.m., December 9, 1993, someone withdrew $100 from Diana’s bank account at an ATM at the Stockdale branch of Wells Fargo Bank in Bakersfield. Other attempts to withdraw money, some successful, some unsuccessful (because they exceeded the $300 daily transaction limit), were made on that account at a Wells Fargo branch on White Lane and Stine Road in Bakersfield beginning at 1:06 p.m., and then again at the Stockdale branch beginning at 1:49 p.m. A total of $280 was withdrawn that day. Between December 10 and December 15, 1993, someone made additional withdrawals totaling $1, 800 on that account from ATM’s in Las Vegas, somewhere on Interstate 70, and in Denver. Some unsuccessful attempts were also made. One of the ATM transactions at the White and Stine branch was photographed. The photographs show a White man (obviously defendant) making the transaction from a car that appears to be a Volkswagen Golf.
During the afternoon of December 15, 1993, Kansas police on the lookout for Diana’s missing Eagle Talon stopped it on Interstate 70 near WaKeeney, Kansas. Stroder was driving, and defendant was a passenger. The car’s trunk contained a loaded Winchester rifle. Stroder was carrying a purse containing Diana’s Social Security card. Inside the car, police found Diana’s driver’s license, her Wells Fargo checkbook, her ATM card, motel receipts from Las Vegas and Denver, a marriage license, insurance papers for a 1986 Volkswagen Golf, a Missouri license plate with the number HIX939, a box containing sixteen.30-.30 Remington shells, and a cloth bag containing eight Winchester.30-.30 shells.
Stroder’s father testified that around December 1993 his daughter and, part of the time, defendant were living with him in Whitewater, Missouri. The father owned a 1986 Volkswagen Golf, license plate number HIX939, as well as the Winchester rifle found when defendant was arrested. Stroder had been using the car for several weeks. It had a mechanical problem. On December 3, Stroder was supposed to meet her father, but she did not appear. He next saw her after her arrest. He had noticed the rifle was missing after December 3.
Defendant and Stroder got married at a wedding chapel in Las Vegas on December 11, 1993. Before the wedding, they asked a chapel employee where they could find an ATM to get money. They left briefly, then returned, paid for the wedding ceremony, purchased two wedding rings, and got married. They were wearing the rings when they were arrested.
After the shooting, the Volkswagen Golf that Stroder’s father owned was towed in Bakersfield as an abandoned car. Stroder’s fingerprints, but not defendant’s or Diana’s, were found on and in the car. The Golf’s front tires matched tire tracks found at the scene of the shooting. None of the tracks at the scene matched the Eagle Talon’s tires. Stroder’s shoes could have made some of the shoe prints at the crime scene. A pair of shoes belonging to defendant did not match any of those prints.
The rifle found in the car when defendant was arrested was a “leverage-action Winchester, Model 95, 30/30 caliber rifle.” Ballistics analysis established that it had fired the four shell casings found near Diana’s body. To fire the rifle, one must move the lever down to cock the hammer into the ready position and depress the safety. This action must be repeated for each shot. It took six pounds of pressure to pull the trigger, which a criminalist described as a “moderate trigger pull.”
Kern County Sheriff’s Deputy Joseph Giuffre interviewed defendant in Kansas and again later in California. On both occasions, after first waiving his constitutional rights, defendant admitted his involvement in the shooting. In order to protect the rights of codefendant Stroder, Deputy Giuffre testified about a version of defendant’s statements redacted to eliminate any mention of Stroder. Thus, the jury heard the following.
When he first spoke with Deputy Giuffre in Kansas, defendant said he was from Missouri and drove to Bakersfield in a Volkswagen Golf. The.30-30. rifle was in the car. He arrived in Bakersfield the day before the shooting. He first saw Diana Contreras at the Valley Plaza shopping center. Giuffre testified defendant said he decided to rob her because she “ ‘just seemed like she wouldn’t be as much trouble.’ ” She got in his car. The rifle was where the gear shift is, partly in defendant’s lap and pointing down. Defendant admitted Diana was not in his car voluntarily.
Diana had only seven dollars. Defendant said to her, “ ‘is this all you got, all you can give me?’ ” She responded, “ ‘well, I can go to the bank... and get you some money and that’s it, but I can only get $100 out.’ ” Defendant then drove to a Wells Fargo bank and used Diana’s ATM card to withdraw $100. Diana gave him her personal identification number (PIN) so he could do so. Because Diana had a car phone, he did not take her back to her car. Instead, he “drove out to an area near some call boxes to drop her off so he would have time to get away.” He said he “didn’t want to drop her off too early because he could be caught for kidnapping.” He described the area where he took her as “desolate and remote with no phones around.” He said he planned to “drop her off and drive off. He thought about tying her up but figured it gets cold and if no one came along she would die.”
When they arrived, Diana got out of the car and came around to his side and he pulled the gun out and said, “ ‘just go, just start walking that way.’ ” He thought she came to his side of the car “to plead for him to drive her back in.” Diana began crying and arguing. She came close to him and said, “ ‘don’t leave me here, don’t shoot me, don’t do this.’ ” Defendant said, “ ‘just walk, you’ll find somebody. I don’t want to shoot you. I don’t want to hurt you.’ ” At some point, he got out of the car with the rifle. Regarding why he did so, he said, “ ‘it’s just that when she got out not to leave her and stuff.... And she was like walking around the back, I guess, to my side, and I jumped out because I didn’t know what was going on, and I just grabbed the gun and I said just go. Because I thought maybe I could scare her....’ ”
Defendant said he did not remember much about what happened next, Deputy Giuffre testified. “The only thing he remembers is three shots went off and he remembered seeing her face because he had nightmares where he’d see her and her eyes were open and that is pretty much all he remembered.” Defendant said he did not know why he shot Diana. “He said he didn’t do it purposely. He wasn’t planning on killing her. He guessed that when she came up to him he didn’t aim and shoot. If he would have aimed and shot he would have shot her in the heart or head or something. He just did it and he didn’t know whether it was reaction or if he was just scared and he twitched.” He said “she started screaming and she just kept screaming, and he didn’t know what to do so he shot her again. One shot missed because he was nervous, then he shot her again.” He was holding the rifle by his hip and waist area. One bullet went through her purse.
Defendant said that after he shot Diana she fell down. “She was screaming and yelling and he shot her again and he missed and she was in pain, and he shot her again because he didn’t want her to go through any more pain.” She was on the ground when he shot her the second time. He fired the third time because he thought the second shot missed. Defendant also gave this account of the shooting: “He was telling her to walk and go and get away because the road went around down that way, and he was just going to drive out and stuff, and he shot her, she fell back and she was screaming and he shot her again. He thought he missed because it ricocheted up on the top, and she was screaming because he started to move away in the car, and he turned around and shot her again so she wouldn’t go through no pain.”
Regarding the sequence of shots, Deputy Giuffre testified defendant told him “he didn’t shoot her three times bang, bang, bang. He shot her, she fell. He was freaking out and didn’t know what to do. She was sitting with her arms up, screaming, and he shot again and he saw the gravel hit above, so he doesn’t know if it went through her when she was on the ground or not. So he shot her again and she stopped.” He said he shot her accidentally. “[I]t just happened.” He said that if he had planned to shoot her, “ ‘I would have hid the shells and dragged her off somewhere if I was some insane killer just wanting to kill her.’ ”
Defendant took Diana’s bags and drove away in the direction in which he had come. “He was so scared he just drove off.” He drove back into town, “parked and sat there and cried. He didn’t know what to do.” He got money from a bank, using the PIN Diana had given him. Then, because the Golf was having mechanical problems, he decided to take Diana’s car. He got money again, this time from another bank. Then he drove to Las Vegas and other places, using Diana’s ATM card occasionally to get money. He signed some receipts for money in Utah with the name “Robert Contreras” because he knew Diana’s father’s name began with the letter “R.”
Defendant took Diana’s driver’s license from her purse “just for memory, just to give some respect because he prayed, and it is against his morals and religion and he’s never hurt anybody before.” The driver’s license had gun powder on it. He kept her checkbook “for no particular reason.” He later threw the purse away, but he did not remember where. He said he took a license plate from the Golf “in case he needed to switch the plates.”
The second time Deputy Giuffre spoke with defendant, this time in California, defendant gave another account of the events. He said he had kept the gun in the car for protection. He chose to rob Diana because “she was just a little girl that wouldn’t fight or nothing.” He told her he was trying to get to his aunt’s home and ran out of money. Defendant said Diana looked down where the gun was sitting, and he told her, “ ‘I don’t want to hurt you. I just want some money.’ ” She gave him seven dollars.
Defendant again explained his plans after withdrawing the money from the first bank. He said, “ ‘I was gonna take her back, and while we were talking and the car phone was brought up, ... she said she wouldn’t call because she gave me the money freely, ... and I was like, well, if someone... threatened me, I guess, I know I would call anyway.’ ” He added, “ ‘I told her I would drop her out... parked away from the highway, up in the city more to give me a chance to drive off.’ ” Diana was nervous and said, “ ‘okay.’ ” He told her “he wouldn’t leave her off somewhere where it’s too far from a call box or a gas station or town.” When Diana got out of the car, she was saying, “ ‘just drive me back in to town.’ ”
Defendant said “he checked the engine because they had gone over a bumpy road.” That was why “he got out of the car in the first place.” He “said he slammed the hood down and walked over. He doesn’t remember if he was adjusting the gun or not because when she was walking around he told her he was moving the gun and then that is when he stood up with the gun in his hand, and he guesses that is when she got really scared. He’s a little guy himself and she is little. When she started pleading and stuff, he had the gun there and stuff. He was going to drive her back in to town, but then he didn’t know what was going to happen. Then she ran up.” He “didn’t know if she hit the barrel and it went off or if he just twitched and it went off because that kind of gun you really just can’t twitch to pull the trigger, even though it is an easy trigger pull. He just remembered she was really close to the gun. He thinks she ran in to the gun, that is when it went off, but he really can’t remember if that is what happened or if he twitched, ” Deputy Giuffre testified.
Defendant said “when he saw the bullet hole he was flipping out. It was right under the heart and with it that close he knew it tore her up unless it went straight through her, and she was screaming in pain and that is when he shot her twice and she just died.” “Because of the way she was shot, even if he tried to get her back to a hospital, she would have died anyway....” At that point, defendant said, “He wasn’t even thinking. He just grabbed. He wasn’t even thinking of grabbing her purse and stuff.” Deputy Giuffre testified, “He said there was a bullet hole through the purse and the driver’s license should have a black powder mark where the bullet came through the driver’s license. She had her purse and packages in her hand.”
Defendant said “he never physically touched [Diana] at all. He never forced her in to the car physically. He never pointed the gun at her except when this went off. And even then he wasn’t really pointing at her because he had it mostly to the ground. She just ran in to it and it went off.” After he shot Diana, he “just happened to run” across the second bank where he got money “by luck.”
Deputy Giuffre testified that it takes about 11 minutes to drive from the Valley Plaza mall parking lot to the Stockdale bank branch, about 40 minutes from that bank to the scene of the shooting, and about 32 minutes from the scene of the shooting to the White and Stine bank branch. The distance from the parking lot to the first bank and then to the scene of the shooting is a total of 34.7 miles.
Defendant cross-examined prosecution witnesses but presented no witnesses of his own.
B. Penalty Phase
The prosecution presented evidence of defendant’s felony convictions in Missouri in 1991 and 1992, including two for second degree burglary, one for forgery, and one for first degree “tampering, ” charged as “unlawfully operating an automobile.”
Diana’s father, one of her sisters, and a high school friend testified about her and the impact her death had on them and the rest of her family.
Defendant presented a substantial case in mitigation. His mother and stepfather testified about his childhood and good character. His Sunday school teacher and several friends also testified about his good character. Defendant said and wrote various things after his arrest indicating remorse. His aunt lived in Northern California and had invited defendant’s family to stay with her.
Dr. John Byrom, a clinical psychologist, testified that defendant is neither psychotic nor sociopathic. In his opinion, defendant “is not an inherently violent person.” He also believes defendant “has some level of remorse for what he did.” Defendant “would be adaptable to the prison environment, ” and would have a low propensity for violence in prison.
A. Denial of Change of Venue
Defendant and codefendant Stroder moved to change venue from Kern County. The trial court denied the motion without prejudice before trial and denied renewed motions during and after jury selection. Defendant contends the court prejudicially erred.
1. Procedural Background
In December 1994, codefendant Stroder filed, and defendant joined, a motion for change of venue. Attached to the motion was a copy of newspaper clippings from The Bakersfield Californian about the crime, the results of a public opinion survey, and a flier for a “rally and March for Crime awareness” scheduled for May 14, 1994, at which members of the victim’s family were scheduled to speak.
The court conducted an evidentiary hearing on December 16, 1994. Defendants placed into evidence additional newspaper articles, and evidence regarding a march held on July 9, 1994, called “Love for Life” and described as the “2nd Contreras family rally [for] anti-crime anti-violence.” At most 50 people attended this event. Polly Klaas’s grandfather was among the speakers.
Dr. Terry Newell testified about a public opinion survey he conducted in November 1994 at the defendants’ request. Of those surveyed, 81.4 percent recognized the case, a number that increased to 85 percent when additional facts were presented. Of those who knew about the case, 22.3 percent believed defendant was “definitely guilty, ” 24.1 percent believed he was “probably guilty, ” 52.2 percent had formed no opinion, and 1.3 percent believed defendant “was ‘not guilty’ until proven so in court.” Including those who had not heard of the case, this meant that over 60 percent of the total surveyed had formed no opinion about defendant’s guilt. When asked what penalty they would choose if they found defendant Stroder guilty of murder, 52.7 percent of those who knew about the case said they would vote for the death penalty, 21.9 percent for prison without parole, and 25.4 percent had no opinion. The survey did not ask the last question about defendant, but Dr. Newell estimated that about 54.8 percent of those who knew about the case would have voted for the death penalty as to defendant.
The survey did not ask if the interviewees could set aside their opinion and decide the case based on evidence presented in court. Those who indicated they would vote for the death penalty were not asked whether this opinion was based on information about this case or the belief that death is the appropriate penalty for any murder.
A Bakersfield resident testified at the hearing that based on what he had heard, he believed defendant was guilty and ...