People v. Barnett

Page 121

74 Cal.Rptr.2d 121

17 Cal.4th 1044, 954 P.2d 384, 98 Cal. Daily Op. Serv. 3314,

98 Daily Journal D.A.R. 4582

The PEOPLE, Plaintiff and Respondent, v. Lee Max BARNETT, Defendant and Appellant.

No. S008113.

Supreme Court of California

May 4, 1998.

Rehearing Denied July 8, 1998.

Page 136

Michael A. Willemsen, Palo Alto, and Ron Parravano, Monterey, under appointments by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, Justice.

Defendant Lee Max Barnett was convicted by a jury of one count of murder (Pen.Code, § 187), ¹ two counts of robbery (§ 211), one count of assault with a firearm (§ 245, subd. (a)(2)), and four counts of kidnapping (§ 207). The jury found true the special circumstances that the murder was committed while defendant was engaged in the crime of robbery (§ 190.2, former subd. (a)(17)(i)), that the murder was committed while defendant was engaged in the crime of kidnapping (§ 190.2, former subd. (a)(17)(ii)), and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). It also found true allegations that defendant personally used a firearm in the commission of the robberies and kidnappings (§ 12022.5). After the jury returned a verdict of death, the trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)). ² Appeal to this court is automatic. (§ 1239, subd. (b).)

We find no prejudicial error at the guilt or penalty phase of defendant's trial. We therefore affirm the judgment in its entirety.

I. FACTS

A. The Guilt Phase

The instant crimes occurred when two groups of people unexpectedly confronted each other on July 6, 1986, at a remote campsite in the Forest Ranch area of Butte County. The evidence at trial included testimony from those involved in the confrontation, including defendant, and from others who had contact with defendant the summer before the confrontation and immediately afterward.

1. The Prosecution Case

In 1985, defendant and Richard Eggett stayed at the remote campsite and dredged for gold together. In the summer of 1985, Christine Racowski was at the camp with the two men for a week. ³

Tension developed when Racowski complained about defendant's belligerent language and accused him of stealing her wallet. Toward the end of the week, defendant called Racowski a "fucking bitch" and accused her of trying to sabotage the gold dredge. When Racowski denied the accusation, defendant punched her in the face. Eggett said, "That's it, I'm pulling out." Defendant grabbed his .22-caliber rifle and pointed it at Racowski, saying, "I just might as well pump some lead in her right now." Eggett intervened and the gun fired while pointed in the air. According to Racowski, Eggett was upset with defendant's aggressive behavior, and the gold dredging partnership between Eggett and defendant ended at that time.

Late in the summer of 1985, Dave McGee went to the camp at Eggett's request to help him remove a dredge. While at the dredge site, McGee observed tension between Eggett and defendant, who was also at the camp. Defendant left after Eggett said he did not need defendant's services anymore. ⁴ When McGee and Eggett later returned to

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the campsite, Eggett's Jeep would not start and they had to hike out. McGee subsequently saw that the Jeep's engine had been destroyed by a screw.

A week or two later, defendant went to McGee's apartment and talked to Eggett (who had been staying with McGee) through the screen door. McGee heard defendant accuse Eggett of stealing gold from him. Eggett denied it. Defendant tore through the screen door, striking at Eggett. After Eggett chased defendant back out and off the porch, McGee saw defendant pull out a hunting knife and shake it at Eggett. Defendant fled as the police arrived, saying he would be back to kill Eggett and the others.

The following summer, in June of 1986, defendant approached Greg Kersting in Chico about the possibility of gold mining. Defendant told Kersting, who had a dredge, that he knew of a place with "lots of gold" in the Forest Ranch area. Defendant claimed that he and a partner had mined up there the year before and that the partner had "ripped him off" for "pounds of gold." After several conversations, Kersting and defendant agreed to dredge for gold together.

On the evening of July 5, 1986, defendant drove to the campsite with Kersting and his wife, Margarete Haynes, their three young children, and defendant's friend, Tom Burgess. ⁵ On the way to the campsite defendant told Haynes he was going to kill "Rich" (later identified as Richard Eggett). Defendant said: "I'm going to kill that fucker. I'm going to kill that sucker dog lips." Defendant later mentioned to Haynes that Eggett had stolen some gold from him.

When the group finally arrived at the campsite, a small tent and a motorcycle were there. Defendant stepped out of his truck, tied a red bandana around his head, got his gun and checked to see if anyone was there. Kersting heard defendant tell Burgess to get ready for possible trouble. Finding no one there, defendant drove his truck right through the camp, knocking over tables. ⁶ Haynes heard defendant call out: "Hey Rich, are you here, hey." Later, just before Haynes went to bed and also the next morning, she again heard defendant say he was going to kill that "sucker dog lips."

Prior to retiring for the night, defendant tried to turn his truck around and it got stuck in a hole. Defendant had the idea to tie some wood or logs on the truck's wheel with rope in order to get it out and turned around.

The following morning, on July 6, 1986, defendant began cutting trees to build a bridge across the creek. (See ante, fn. 6.) Defendant did not intend to stay at the campsite; he wanted to camp closer to the part of the creek where the dredging would be done. Kersting did not think the bridge was a good idea, so he walked between one and two miles, checking out the road for alternatives. Kersting returned about an hour or an hour and a half later. Soon after, he and the others heard a vehicle approach the campsite.

Defendant told Burgess to get his gun because it might be the people defendant had spoken of earlier, coming back to rob him. Defendant grabbed his .22-caliber rifle and ran up the side of a hill. Burgess stood with his loaded shotgun, waiting to see who was coming.

The approaching vehicle was Eggett's Jeep. Eggett was driving, joined by his mentally slow brother, Billy Eggett (Billy), Lloyd Curtis Hampton, and Bill Cantwell. ⁷ Eggett, Billy, and Hampton had initially arrived at the campsite around June 8, 1986, to dredge for gold, but had gone into town for the Fourth of July weekend and had spent the night at Cantwell's trailer. Cantwell decided to accompany them back to the campsite that morning. As they drove into the camp, they

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saw two unfamiliar vehicles. Someone ran toward them and then up the side of the hill. Believing someone might be "ripping [them] off," Hampton and Cantwell armed themselves and went into the camp on foot.

There was a tense confrontation when Eggett's group came upon defendant's group. Eggett, Hampton and Cantwell wanted to know who was in their camp and what they were doing. Kersting and Burgess tried to explain they had gotten stuck the night before and were trying to move out. Kersting showed them his family and said they had planned to camp for the weekend and do some mining. He was told they were in the wrong place, and they had to get out of there. At one point, Kersting heard Eggett and Burgess scuffling behind him, apparently over Burgess's shotgun.

Meanwhile, defendant had run to the top of the hill. After revealing his presence, defendant shouted statements to the effect of "Rich, I'm back. I've come to get you" and "Eggett, you SOB, it's taken me a year but I've got you now." Defendant pointed his rifle and told Cantwell to drop his pistol or die. ⁸ He directed Eggett's group to drop their weapons and get out of there. Cantwell and Hampton put down their guns after defendant fired a warning shot and "bluffed" them by pretending others were up on the hill with him. Defendant told them to put their hands on their heads.

Eggett recognized defendant, and they started arguing about the previous year. Defendant cursed Eggett for robbing him. He also accused Eggett of having "a 300 pound nigger beat the shit out of [him] and kill [his] dog" the year before. Eggett denied everything.

After Hampton and Cantwell put their weapons down, defendant came down the hill. Eggett and defendant continued to argue, with defendant yelling that Eggett was a liar, a thief and a robber. Defendant got angry as Eggett repeatedly denied his accusations. At one point defendant told Eggett: "Hold it right there. I'm going to blow your God damn head off."

As defendant approached Eggett's group, he told Burgess to shoot if anyone moved. Defendant instructed Eggett's group to "empty [their] pockets" and place everything on the hood of Eggett's Jeep. Hampton put his gun, his knife and his wallet on the hood. Cantwell placed his pistol there, ⁹ along with $1,100 from a payroll check he had just cashed. A vial of gold belonging to Eggett and Hampton, worth between $700 and $1,000, was placed on the hood by Eggett. After surrendering their belongings, Eggett, Cantwell and Hampton were forced at gunpoint to place their hands behind their heads. Eggett's brother Billy stayed off to the side.

Defendant stuck Cantwell's pistol in his belt. He took Cantwell's money, saying that it would just about pay him back for what Eggett had stolen and that now Eggett owed the money to Cantwell. He also took the gold vial and Hampton's knife. When he took the gold, he told...