People v. Price

Decision Date30 December 1991
Citation821 P.2d 610,3 Cal.Rptr.2d 106,1 Cal.4th 324
Parties, 821 P.2d 610 The PEOPLE, Plaintiff and Respondent, v. Curtis Floyd PRICE, Defendant and Appellant. Crim. 25577, S004719.
CourtCalifornia Supreme Court

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Mark E. Cutler, under appointment by the Supreme Court, Cool, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Ronald E. Niver and David H. Rose, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KENNARD, Justice.

After a year-long trial, 1 a jury convicted defendant Curtis Floyd Price of the first degree murders of Elizabeth Ann Hickey and Richard Barnes (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated), and it made special circumstance findings, as to the Hickey murder, of multiple murder (§ 190.2, subd. (a)(3)) and burglary murder (§ 190.2, subd. (a)(17)(vii)). The jury also convicted defendant of one count each of robbery (§ 211) with the use of a firearm (§§ 1203.06, 12022.5), burglary (§ 459), receiving stolen property (§ 496), and conspiracy (§ 182). The jury further found that defendant had twice previously been convicted of serious felonies (§ 667, subd. (a)), and had completed two prior separate prison terms (§ 667.5, subd. (a)).

The jury fixed the penalty for the murder of Hickey at death. The trial court denied the automatic motion to modify the verdict of death (§ 190.4, subd. (e)), and it sentenced defendant on the noncapital counts to imprisonment for a determinate term of 10 years, consecutive to an indeterminate term of 25 years to life. Defendant's appeal from the judgment is automatic. (§ 1239, subd. (b).)

The sentence for the offense of burglary shall be stayed, but the judgment shall otherwise be affirmed.

I. FACTS
A. Summary of Facts Relating to Guilt

Defendant was released from prison in September 1982. On January 23, 1983, the gun collection of Richard Moore disappeared from his residence, apparently having been stolen in a burglary. On February 13, 1983, the body of Richard Barnes was found in his residence. He had been shot in the back of the head three times. On the morning of February 19, 1983, Berlie Petry found the body of Elizabeth Ann Hickey in the residence they shared. Hickey, the stepdaughter of burglary victim Moore, had been beaten to death with a blunt instrument; guns belonging to her and to Petry were missing from their residence. That same evening, a gunman robbed employees of the Triplex Theater.

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The Barnes killing occurred in Los Angeles County. The Moore burglary, the Hickey killing, and the Triplex Theater robbery all occurred in Humboldt County.

The police arrested defendant for the Triplex Theater robbery. After a lengthy investigation, he was also charged with the Barnes and Hickey murders, receiving stolen property (the Moore weapons), and robberies at three other commercial establishments in Humboldt County during January and February of 1983.

At trial, the prosecution presented evidence that defendant belonged to the Aryan Brotherhood (AB), a prison gang, and had committed the charged offenses in furtherance of a conspiracy originating with the gang leadership. The principal objective of the conspiracy was the murder of Richard Barnes, who was the father of an AB member who had testified against other gang members. Defendant obtained the stolen Moore weapons, possibly with the knowledge or assistance of Hickey, to use in the killing of Barnes or for other AB assignments. Hickey was killed to obtain the guns in her residence and/or because she could incriminate defendant in the theft of the Moore weapons and/or the murder of Barnes. Defendant committed the Triplex Theater robbery to obtain funds with which to carry out his AB assignments.

The defense denied that defendant had committed any of the offenses. It offered alibi evidence to show that defendant was not in Humboldt County at the time of the Hickey killing and the Triplex Theater robbery. It attempted to cast doubt on the identification testimony of the robbery victims and the veracity of the prosecution's AB witnesses, and it sought to cast suspicion on Petry for Hickey's murder.

The jury convicted defendant of two counts of first degree murder (one with special circumstances) and one count each of robbery, possession of stolen property, burglary, and conspiracy. The jury acquitted defendant of one count of robbery, and it was unable to reach verdicts as to the remaining robbery counts. The description of the evidence that follows omits evidence of the charges that did not result in convictions.

B. Prosecution Evidence
1. The Conspiracy and Barnes Murder

Before this case arose, Steven Barnes, an AB member, had testified as a prosecution witness against other AB members and against several non-AB members. During the summer of 1982, the AB leadership, which included Michael Thompson and Clifford Smith, decided to retaliate. The decision was made during a series of meetings at Palm Hall, an area inside the state prison at Chino. Prison authorities had placed Steven Barnes in protective custody, so the AB leaders decided to kill members of his immediate family instead. They selected defendant to do the killing.

Defendant was then serving a sentence in the Montana state prison, but he was scheduled for release from prison soon without parole supervision. One of the AB leaders brought defendant to Palm Hall in August 1982 by subpoenaing him to testify at the leader's trial. After defendant arrived at Palm Hall, AB leaders offered him the "contract" to kill Richard Barnes. Defendant accepted. The AB leaders instructed him to procure weapons in Northern California before returning south to kill Richard Barnes.

Janet Myers visited Smith regularly in prison. She was an AB "runner," relaying messages to and from other AB members. Smith instructed Myers to take care of defendant. Defendant went to Myers's house on the day he was released from prison. Joseph O'Rourke, an AB leader who normally supplied weapons to AB members in Southern California, picked defendant up there. Defendant spent about one month working for O'Rourke.

After O'Rourke was arrested in October 1982, defendant went to Humboldt County, where he spent most of the next three months. Defendant returned to Southern California in late January 1983. He stayed at the Santa Ana home of Michelle Scarborough, another AB runner, for approximately a week. He then stayed with Myers in Claremont. Defendant had a blue airline

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bag in which he kept a sawed-off shotgun and a revolver. While staying with Myers, defendant made a weekend trip to Auburn, near Folsom Prison, where he stayed with Rebecca Williams.

One night Myers drove defendant to different addresses he wanted to see. One of the addresses was the Temple City residence of Richard Barnes. On February 12, 1983, at 11 p.m., defendant left Myers's house with Tammi Shinn, another AB "runner." He returned early the next morning, collected his belongings, and left.

On February 13, 1983, sheriff's deputies discovered the body of Richard Barnes in the bedroom of his residence. The body was on the bed. The cause of death was three contact-range gunshot wounds to the back of the head inflicted by a .22-caliber handgun.

After the murder, Myers brought Smith a note signed by defendant. It stated: "That's took care of. Everything went well. I am going back north. I will be in touch with you later." Myers destroyed the note after showing it to Smith.

The evidence against defendant on the conspiracy and Barnes murder counts consisted primarily of the testimony of Michael Thompson, Clifford Smith, and Janet Myers. In addition, the prosecution introduced evidence that defendant had testified in an earlier, unrelated trial that he was an AB member. Credit card receipts showed that defendant had purchased gasoline in Pomona on February 12 and in Anaheim on February 13, 1983. In the room defendant had occupied in his mother's house in Eureka, police found a slip of paper on which Richard Barnes's address had been written, together with the name "Nate," a nickname for Steven Barnes, and the words "send subpoena to him." In defendant's wallet, which they obtained from defendant's mother, police found another note with a reference to an address and telephone number for "Steve Barnes' step-father in Fountain Valley."

2. The Moore Residence Burglary and the Hickey Murder

On January 23, 1983, William Eaton reported an apparent burglary at the Humboldt County residence of Richard and Dottie Moore, Eaton's stepfather and mother, who were away from their residence for the weekend. The only items missing were the firearms in Richard Moore's collection, which included two rifles, three shotguns, and a .22-caliber handgun. The house had not been ransacked.

On February 18, 1983, Berlie Petry had been living with Elizabeth Hickey and her two minor children for three or four years. Hickey was the daughter of Dottie Moore and the stepdaughter of Richard Moore. Petry worked the night shift as a security guard at a lumber company. Both Petry and Hickey owned guns, including rifles, shotguns, and handguns. They kept the guns locked in a bedroom closet, except for a revolver that Hickey kept in a trunk. Petry left for work as usual at 11:30 p.m. As was his custom, he called the residence every hour on the hour. He spoke to Hickey at 1 a.m. and at 2 a.m., but he received no answer at 3 a.m. The line was busy at 4 a.m. and thereafter.

When Petry returned home at 8:30 a.m., the telephone receiver was off the hook. In the bedroom, he found Hickey's nude and lifeless body on their bed. Both the bedroom closet and Hickey's trunk had been ripped open. The guns were gone. Also missing was a combination radio and tape player that Petry had recently given Hickey. In...

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