Appeal from a judgment of the Superior Court of Orange County, (Super. Ct. No.07CF1791) Dan McNerney, Judge.
The opinion of the court was delivered by: Rylaarsdam, Acting P. J.
Opinion following remand from Supreme Court; reposted for docket number to reflect subsequent opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The trial court sentenced defendant Marvin Vernis Smith to 25 years to life in prison after a jury convicted him of first degree murder in the death of his wife Minnie Smith (Smith). Defendant appealed asserting several evidentiary and instructional errors.
In a prior opinion we reversed the conviction, finding insufficient evidence to support the trial court's instruction of the jury on aider and abettor liability. The Attorney General petitioned for review and the California Supreme Court granted it, remanding the matter to this court with directions to vacate our prior decision and reconsider the cause in light of People v. Guiton (1993) 4 Cal.4th 1116. (People v. Smith, review granted June 23, 2010, S181911.)
Having reconsidered the case as directed by the Supreme Court, we now conclude the instruction on aider and abettor liability did not constitute prejudicial error and defendant's remaining claims lack merit. Thus, we affirm the judgment.
Shortly after 6:30 p.m. on December 15, 2005, police officers went to the Smith's residence in response to defendant's 911 call reporting that he believed an intruder was in the home. After entering the house, the police found Smith on the floor of the upstairs master bedroom next to an unmade bed dead from blunt force injuries to her head. The victim was lying face down, wearing a nightshirt covering only the upper part of her body with her hands bound behind her back by a wire coat hanger tied around the wrists. One foot missing a sock had burn marks. Investigators found matches, charred material, and pieces of duct tape near the body. Subsequent investigation determined the fatal blows came from a log roller stored next to the downstairs fireplace.
The police also found a kitchen window open with its screen removed. Just inside the window, a vase lay on its side on the floor. Drawers were open in several rooms throughout the house. In the master bedroom closet, a portion of the carpeting had been pulled back disclosing a floor safe with the lid open and no valuables inside of it.
When questioned later that evening about valuables kept in the home, defendant specifically mentioned a diamond encrusted gold medallion, a diamond encrusted Cadillac emblem, and a diamond ring he kept in the master bedroom armoire. A week later, defendant participated in a videotaped walk through of the house with investigators. Before the walk-through, the police closed the floor safe's lid and replaced the carpet covering it. The aforementioned jewelry items plus a bottle of liquor were the only items defendant identified as missing.
During the week following Smith's murder, an undercover officer saw defendant at a construction site using a six-foot long 2-by-4 board in an apparent effort to pry something sticking out of a concrete slab. The officer testified defendant held the board with his right hand above the shoulder and the left hand several inches farther down and alternately pushed and pulled the board for two to three minutes. The police arrested defendant after discovering the missing jewelry, Smith's social security card, and her other valuables in the trunk of his car inside plastic bags wrapped with duct tape.
The prosecution theorized defendant killed his wife on the morning of December 15 and staged the home to appear as if it had been burglarized. In addition to the location and condition of Smith's body, an autopsy revealed she had no food in her stomach. A police officer who saw the body the evening of December 15 observed dried streaks of blood on the victim's face and dried blood on the carpet under her head. Bennie Thomas, Smith's son, testified he tried to call his mother the morning of December 15. Contrary to her usual habit, she did not answer the phone or promptly return his call.
The pathologist who examined Smith's body testified the absence of bruising on her wrists indicated the wire hanger used to bind the hands had been affixed at or about the time of her death and that she had not struggled with her attacker. An investigator who examined the body at the home early in the morning of December 16 opined Smith died sometime between 5:30 a.m. and 5:30 p.m. on December 15.
The duct tape found near Smith's body came from a roll found in the garage of the residence that was also used to wrap the bags containing the jewelry discovered in defendant's car. Forensic testing found defendant's DNA profile on samples taken from the log roller, one of the burned matchsticks, and the duct tape next to the victim's body, plus the duct tape used to wrap the jewelry found in his car.
The police discovered a neighbor's tool box adjacent to the wall separating the neighbor's yard from the Smiths' residence, but an officer noted there was no disturbance of any dust or debris that would suggest a person had stood on the tool box or climbed over the wall. Nor could the officer find any indication someone had traversed the yard from the block wall to the kitchen window. The police did not observe foot prints in the planter outside the kitchen window and the screen removed from it was resting where it would have been in the way if a burglar attempted to leave the residence by that route. There was no scuffing on the window sill. The ceramic vase lying on the floor below the window was not damaged.
The drawers removed from furniture had been neatly stacked and the contents of some drawers did not appear to have been disturbed. Although the master bathroom was ransacked, the police found a gun, an item considered to have "a high street value," in one of the drawers. Neither a second 6-foot tall safe located in the garage that contained both several guns and a 12-inch high stack of $2 bills, nor wrapped Christmas gifts kept in a downstairs bedroom had been disturbed.
Defendant made inconsistent statements. He told the police he entered the house through the front door and believed his wife was not home, in part, because the front sunshade screen, which she usually kept in the up position, was down. Thomas testified defendant's practice was to enter the house through the garage where the police found Smith's car. The police officers dispatched to the home in response to the 911 call testified the screen was up when they arrived. Defendant also claimed he could not find the switch to raise the sunshade screen. One officer participating in the crime scene investigation testified the sunshade screen switch glowed in the dark. When questioned by the police on the night of December 15, defendant said he and his wife never locked the floor safe in the master bedroom closet. During the subsequent walk-through defendant claimed his wife kept the floor safe locked and denied he knew the combination to it.
The prosecution also presented evidence defendant and his wife fought during their marriage and defendant had engaged in extramarital affairs with other women. Samuel Matthews, who once worked at a liquor store owned by defendant, testified defendant "would . . . say he wish[ed] it was just him and his dog or just him by himself." On another occasion, defendant purportedly told Matthews "the only way to get out of the marriage [was] they had to die," because he was "not going to give Minnie half of what I got so another man can live off of it."
The defense claimed defendant was not present when the murder occurred and could not have committed it himself. It also disputed the prosecution's claims concerning the time of death, the staging of the alleged burglary, and state of the couple's marriage. The defense presented detailed evidence concerning defendant's whereabouts on December 15. Two defense witnesses testified to seeing a white vehicle parked in the Smith's driveway on the afternoon of December 15. Ada Moses, defendant's ex-wife, testified she saw the jewelry found in his car several months before the murder when she placed some gardening tools in the trunk in preparation for a visit to their daughter's grave. Furthermore, the defense questioned defendant's ability to strike the fatal blows, introducing evidence he had undergone rotator cuff surgery on his left shoulder in early November 2005. Finally, it suggested Matthews may have killed Smith. Matthews purportedly owed defendant a substantial amount of money. He knew defendant had safes in the house and was aware of some details about the crime.
1. The Aider and Abettor Liability Claims
During opening statement, the prosecutor asserted defendant "murdered his wife . . . and then he staged the crime scene to make it look like a burglary . . . to avoid detection." But during a discussion on jury instructions after the close of evidence, the prosecutor asked the court to instruct the jury on aider and abettor liability. "The jury doesn't have to necessarily believe, and I think defense counsel will argue that the defendant did not or could not have committed the crime himself. But that doesn't mean that if he didn't commit the crime himself, that if they find that he aided and abetted in the crime that he's still not guilty of the crime. [¶] So if he didn't swing the murder weapon, it doesn't mean he's not guilty of the crime." Over defense counsel's objection, the trial court agreed to give CALCRIM Nos. 400 ["Aiding and Abetting: General Principles"] and 401 ["Aiding and Abetting: Intended Crimes"]. Defendant challenges use of the aiding and abetting theory on several grounds.
b. The Aiding and Abetting Liability Instructional Error
First, defendant claims the evidence failed to support an aider and abettor theory of liability. In our previous opinion, we agreed with this argument and reversed his conviction, finding this error prejudicial. (People v. Perez (2005) 35 Cal.4th 1219, 1233; People v. Watson (1956) 46 Cal.2d 818, 836.)
The Supreme Court granted review and transferred the matter to us for reconsideration in light of its decision in People v. Guiton, supra, 4 Cal.4th 1116. There a police officer conducting narcotics surveillance saw the defendant hand a confederate something and, after engaging in a transaction with a third person, the confederate handed something to the defendant. When police officers later stopped a vehicle occupied by the defendant and his confederate, they discovered a bag containing cocaine near the defendant's feet. The prosecution charged the defendant with violating a statute that made it a crime to either sell or transport cocaine and, at trial, the jury was instructed on both theories of guilt. The Court of Appeal reversed the defendant's conviction. While it agreed the evidence supported a finding the defendant transported cocaine, the court found the evidence failed to support a conclusion he sold cocaine and it could not determine on which theory the jury based its verdict.
The Supreme Court granted review and reversed the Court of Appeal. After discussing and harmonizing its prior decision in People v. Green (1980) 27 Cal.3d 1, disapproved on another ground in People v. Martinez (1999) 20 Cal.4th 225, 239, with Griffin v. United States (1991) 502 U.S. 46 [112 S.Ct. 466, 116 L.Ed.2d 371], the court stated the rule as follows: "If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, . . . the . . . rule ...