A judge fixed Kurtenbach’s bail at $2 million, but he was able to post it. He was out in three months and remained free for the next 18 months, awaiting trial.
Kurtenbach did himself no favors as a free man. He began two campaigns: one, to sell off all of his assets; and two, to collect money from 80 debtors whom he claimed owed him a combined $180,000. From jail, Kurtenbach had harassed his wife, his ex-wife, and his son to get him bail money. Freed from custody, he stalked and threatened at least four parties.
He went to the apartment of one debtor, Dennis West, demanding money. Kurtenbach said he would stab him if he didn’t pay up. Later, he slashed West’s car tires. Alleging that Kenneth and Sandra Green owed him $20,000, Kurtenbach barraged them with phone calls. He banged on their front door for ten minutes straight, demanding his money. They eventually paid him $7000, settling the claim. Kurtenbach followed Bob and Denise Woodward, to whom he had extended credit at Stars, and whom, he said, owed him $18,000. Kurtenbach chased them around Ramona by car so often that the Woodwards stopped him with a restraining order. Lastly, Kurtenbach harassed a former girlfriend, Nicole Atencio. He stole a car they co-owned — a second BMW he’d bought her after she wrecked the first BMW he’d bought her — and hounded her to return a drawer full of jewelry.
Only with the intercession of his fourth lawyer, Kerry Steigerwalt, did Kurtenbach turn all these unpaid loans over to a collection agency.
Of the charges on which Kurtenbach was taken to trial in late September 2010 — counts included tax evasion, failure to pay tax, misrepresenting his workers’ compensation payments, false insurance claims, conspiracy to commit arson with intent to defraud, using an accelerant for the fire, arson causing great bodily injury, and murder — only the last charge was strongly contested by Kurtenbach’s lawyers.
A murder is defined as the unlawful killing of a human being with “malice aforethought.” Malice may be “expressed or implied,” and either condition requires intent. A person is charged with first-degree murder when he or she directly kills or is responsible for killing another person or hires a gunman to do the job. Second-degree murder involves the accidental killing of a person: the death must occur during a life-threatening act and involve malice. Malice and both degrees of murder go hand in hand.
Judge Herbert Exarhos allowed the prosecution’s second-degree charge to go forward in this case, while the defense filed numerous motions on Kurtenbach’s behalf to block it. The defense’s position was that the act of pouring gasoline in a vacant house by one person is not a life-threatening act against the other person, who has a choice in how he or she starts the fire. The prosecution’s position was that the act of pouring 70 gallons of gasoline, letting vapors build up inside a house, and then telling another to go into the house and start the fire is murder since the person who orders these things knows — implied malice — that the act may kill the perpetrator.
At trial, deputy district attorney Fiona Khalil argued that Kurtenbach “sent a trusted employee to his death.” He knew he was putting Joe into a situation where he was likely to die. Though Joe may not have known — or may have known and not remembered in his rush to set the fire and run — surely Jim Kurtenbach knew of the volatility of gasoline vapors in an enclosed space. Kurtenbach had owned gas stations for years; his vanity plate read “Fuel Pro.” And, by law, he had posted six separate warning signs about gasoline vapor and fire at each pump at Stars. The fourth warning is most pertinent: “A spark will explosively ignite a gasoline vapor fire and cause SERIOUS INJURY or DEATH.”
Precedent in California for charging Kurtenbach with second-degree murder is clearly established. The case most cited reads: “Implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another — no more and no less.” Another case upheld this definition, describing malice as “the conscious disregard of the danger to human life.” Still another decision says that “malice aforethought” need not possess “the slightest trace of personal ill-will.” You need not want to kill someone to be guilty of second-degree murder. But your involvement, citing another definition, must contain knowledge of the “distinct possibility” of the person’s death.
Thus, Kurtenbach’s participation, even direction, in supplying and transporting the gasoline, helping to spread it throughout the house hours or days earlier, which allowed the vapors to accumulate, and knowing the explosive power of gasoline, was “inherently life-threatening” to Joe Nesheiwat and an expression of implied malice. (Judge Exarhos ruled in a pretrial hearing that if Kurtenbach told Joe to go into the house and strike the match, then the act of implied malice and the law of second-degree murder could stand.)
Adding to this argument was Kurtenbach’s knowledge that Joe was in a bind with his debts, with responsibilities to his mother, and a new family. In fact, Joe had hired a lawyer to ensure his parental rights to his child. Not only could Kurtenbach pin the whole affair on Joe, the state said, but Kurtenbach also knew that Joe had taken out an insurance policy on his own life. So if Joe blew himself up (intentionally or not, didn’t matter), Kurtenbach could say that this was Joe’s testament: his girlfriend and child could collect.
Defense attorney Paul Pfingst, who took over from Steigerwalt (Steigerwalt’s firm, Pacific Law Center, went out of business in 2010; vendors and creditors claim the firm owes them more than $3 million), countered that “No one was murdered in this case. Someone who was setting the fire had an accident and killed himself. Nobody wanted him to die.” In arguments filed early in the case, Steigerwalt wrote that it is established law in California that if there is conspiracy to commit arson and one person dies at the scene and the other is not at the scene, the latter cannot be charged with murdering the former. After all, how could Kurtenbach be charged with murder if he didn’t directly kill Joe Nesheiwat? He may have known Joe might die in the act, if he botched the arson, but that shouldn’t be the same as killing him.