California Court of Appeals, Fourth District, First Division
from judgments of the Superior Court of San Bernardino
County, No. FSB1301449 R. Glenn Yabuno, Judge.
S. Brownell, under appointment by the Court of Appeal, for
Defendant and Appellant Kiesha Renee Smith.
M. McKinney, under appointment by the Court of Appeal, for
Defendant and Appellant Michael Mitchell.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Barry J. Carlton and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and
Kiesha Renee Smith and Michael Mitchell appeal from their
judgments of conviction for the murder of Josephine Kelley.
We are compelled to reverse both defendants' convictions
due to prejudicial error in the joint trial before separate
AND PROCEDURAL BACKGROUND
Kelley was 90 years old in 2005. She lived with her daughter
Susan Hassett, son-in-law Dennis Hassett, and grandson
was unemployed and lived with his parents. Derrick sold drugs
and often accepted electronic gadgets as payment in exchange
for drugs. Sherry Beck used drugs, including marijuana and
methamphetamine, and was a customer of Derrick's. She
would sometimes pay him money for the drugs, but other times
would trade items, such as "cell phones, DVD players,
different things, " for drugs. Beck occasionally used
methamphetamine with Derrick.
spent time with other people who used drugs and stole things,
as well. Beck would sometimes pawn stolen items at pawn shops
for other people. Beck had been convicted of burglarizing her
knew Smith because they lived in the same apartment complex,
which was not far from the Hassett home. Beck sometimes gave
Smith rides in Beck's car. One day in September 2005,
Beck drove Mitchell and Smith to a pawn shop.
Beck, Smith and Mitchell drove by Derrick's house, Beck
pointed out the Hassett residence to Mitchell and Smith and
told them that they could probably acquire a lot of items
from the home because Derrick was frequently getting items of
value, such as electronics, in exchange for drugs. Beck
specifically identified Derrick's house because she was
upset with him and wanted to get even with him. Beck had
begun to feel that Derrick had been taking advantage of her
by giving her less product than what she believed she was
entitled to receive in exchange for the merchandise she was
to Beck's trial testimony, Mitchell and Smith developed a
plan in which they would have Beck get Derrick to leave the
house so that they could burglarize it.
The day of the murder
September 15, 2005, Beck drove to Derrick's house and
tried to trade a CD player or power tools for
drugs. Derrick was in the garage of the home,
and he and Beck met there. Derrick did not have any drugs to
give Beck. Beck thought Derrick was acting strangely; he
seemed as if he were high on drugs. Derrick later admitted
that he might have ingested drugs that morning.
their visit in Derrick's garage, Beck learned that
Derrick's grandmother was at home. Beck attempted to get
Derrick to leave to get some drugs, but Derrick declined to
leave the house because he did not feel that Beck had
anything to trade that was sufficiently valuable for him to
take the time to go get more drugs.
Beck was talking to Derrick, Smith approached the house on
foot and pretended to be looking for a lost
kitten. According to Derrick, Beck and Smith
"started arguing" about "their cat or
something." Beck tried to motion to Smith for "her
[to] go away." Smith eventually left. According to Beck,
she did not stay "long" after Smith left. At some
point, Derrick's friend Christopher Mahan showed up to
"smoke... some dope" with Derrick.
to Mahan, Derrick and Mahan "smoke[d]... some dope"
at the Hassett home. Derrick then "got all
paranoid" and decided that they needed to leave the
house. Derrick and Mahan went inside to close and check or
lock all of the windows and doors. Derrick said, "
'Bye grandma, love you.' " Mahan heard no
response. The two then left to go to a store to get beer.
After they got some beer, Mahan dropped Derrick off at a
friend's house up the street from where Derrick lived,
and Mahan "went straight back to work."
meantime, after leaving the Hassett home in her own car, Beck
saw Smith, Mitchell, and another man in a car that pulled up
next to hers. Both drivers pulled over, and Beck
told the occupants of the other car that she did not want to
have anything to do with burglarizing the Hassett home. Beck
testified, "I showed 'em the house, and to me that
was all I wanted to be involved with." Beck claimed that
she told Smith, Mitchell and the other man that she did not
want any of the money or property that they might get from
the Hassett house, and that her only goal was to "get[ ]
even with Eric - I mean Derrick." According to Beck, she
told Smith and Mitchell that Derrick's grandmother was at
home, and that she did not want them to burglarize the house.
Smith and Mitchell did not say anything in response. Beck
then returned to the apartment complex, although she was not
living there at that time.
Hassett returned home from work that afternoon sometime after
3:30 p.m. Upon entering her home, she saw "[her]
mother's purse open, laying on the floor, and everything
spread out around it from the contents of her purse."
Susan began to call out for her mother. Susan immediately
went to her mother's bedroom and found Kelley on her bed.
There was a pillowcase over Kelley's head. Susan took the
pillowcase off of her mother's head and tried to wake her
up. Susan called 911.
later determined that Kelley had died from homicidal
asphyxia. Her legs and arms had been bound with wires used
"for hooking up televisions, monitors or computer
monitors." The medical examiner testified that he
"felt that the primary method or mode of asphyxiation
here was smothering, " but that "[t]he position she
was in [i.e., the way 'she was lying'] might have
contributed to her death."
that day, Mahan returned to the place where he had dropped
Derrick off, and picked him up. Mahan told Derrick that there
were police at Derrick's house. Mahan took Derrick to the
police station, where he spent a number of
hours. Derrick was arrested for
Kelley's murder that day. The investigation centered on
Derrick in 2005, but the District Attorney's office
ultimately declined to prosecute Derrick for the crime.
learned from the television news the following morning that
Kelley had died. She saw Derrick "in a[n] orange
to Beck, on the day after the burglary of the Hassett home,
Smith, Mitchell and the other man who had been in the car
with them the previous day approached Beck in front of the
hotel where she was staying. They told Beck that she
"needed to keep [her] mouth shut." They were in an
SUV, and one of them had a weapon. Beck said that someone
pointed the weapon at her.
was interviewed by police a number of times, beginning
shortly after Kelley's death. During her first interview,
Beck told officers that she thought Smith might have been
involved in Kelley's murder. Beck was given a
photographic lineup, but was unable to positively identify
three weeks to a month after Kelley's death, police went
to the home of Mitchell's mother, Theresa Johns, looking
for Smith. Officers found Smith hiding in a
While at the residence, police found a significant number of
items that had been taken from the Hassett residence. It also
became clear that Smith and Mitchell had pawned, within days
of the burglary, other items of value that had been stolen
from the Hassett residence. Many of the stolen items found in
Johns's residence were identifiable as having been taken
during the burglary of the Hassett residence, including
jewelry and watches, some of which had personalized
engravings. Police also found foreign currency and many
coins, including coin collections.
searched a Chevy Blazer that was parked at Johns's house.
Inside the Blazer, a detective found a small safe and a pink
tackle box, which officers suspected were also connected to
the burglary of the Hassett residence. Inside the safe an
officer found collectible coin books containing collections
of coins and currency from different countries, and inside
the tackle box officers found jewelry and money.
an interview with police in early 2006, Derrick was presented
with photographic lineups. In the lineup in which police
placed Smith's photograph, Derrick was unable to
positively identify Smith as the woman who had stopped by his
home while he was talking with Beck.
employee of the Orange County Sheriff's Department Crime
Laboratory analyzed Kelley's clothing, a pillowcase, a
towel, and some cords found at the crime scene. The employee
obtained DNA matches for Kelley and Derrick on the towel,
which had been wrapped around Kelley's
head. No DNA from either Smith or Mitchell
was found on the towel.
latent fingerprint examiner for the San Bernardino County
Sheriff's Department Crime Laboratory testified that
latent fingerprints were obtained from various locations
inside the Hassett residence. None of the prints was a
positive match to Smith. Some were inconclusive as to
parties stipulated that numerous shoe impressions were
present in the soil in the side yard to the residence and on
the carpet in the living room. Three shoe impressions were
compared with a pair of shoes seized from Johns's house
in Rialto. Two of the impressions, from the dirt, did not
match the comparison shoes. The carpet indentation had
"the same outline as the two shoes seized and [could
not] be excluded as a match." However, "there was
not enough information to make a positive or negative
Teresa Johns's 2013 conversations with police and her
early 2013, Kelley's death remained "unsolved."
In January 2013, a television news program broadcast a report
about Kelley's death. Mitchell's mother, Theresa
Johns, watched the program. As part of the news story, the
police invited members of the community to come forward with
any information they might have about the crime. The police
had not released to the general public the fact that Kelley
had been found with a pillowcase over her head.
viewing the news story, Johns contacted police with some
information that she believed was relevant to the Kelley
murder. Johns knew that Kelley had had a pillowcase placed
over her head. According to what Johns told the detective,
until she saw the news story, Johns had been under the
impression that the victim's grandson had been arrested
for her murder. Johns was interviewed twice by police
investigators, the first time on January 10, 2013, and the
second time on January 30, 2013. During both interviews,
Johns made statements implicating Smith and Mitchell in the
burglary of the Hassett home.
the January 10, 2013 interview, Johns described having
overheard a conversation between Kesha Williams, a woman who
had been living with Johns, and Smith. According to Johns,
Smith told Williams that she and Mitchell had burglarized a
home and that they had had to subdue an elderly woman by
tying her up. Further, she and Mitchell had put a pillowcase
on the woman's head, and Mitchell had hit the woman to
get her to stop screaming.
the January 30, 2013 interview, Johns said that prior to
police searching her home in 2005, she had heard Mitchell
talking with Michael Spinks, Johns's common law husband,
in the garage of Johns's home. According to Johns,
Mitchell was telling Spinks "how he hit the lady and she
didn't cry no more." He indicated that "Kiesha
couldn't keep her quiet." According to Johns, after
she heard Smith talking to Williams, she realized that
Mitchell had been talking about the same incident that Smith
talked to Williams about.
trial, Johns recanted the statements that she had made during
her interviews with law enforcement officers. She explained
that at the time she made the statements, she was angry with
Mitchell, and she knew what the investigator wanted to hear.
Johns said that she had known certain details about the crime
because she had had access to police reports, which Mitchell
had obtained when he was arrested for possessing stolen
property from the Hassett home in 2005. Mitchell had left the
police reports with Johns. Johns also said that she had
researched the case on the internet.
Additional trial testimony
testified at trial. In September 2005, she was living with
Johns in Rialto, California. Williams was present when police
came and searched the house, but she left immediately after
that to go to Texas, where she stayed with her mother for a
acknowledged that after returning to Rialto, she got into a
heated, and physical, confrontation with Johns, which
resulted in Williams being arrested. Williams was in local
custody for several days, and was housed in the same area
where Smith was incarcerated after being found with items
stolen from the Hassett home. While Williams and Smith were
in jail together, Williams overheard Smith tell others that
she and her boyfriend had been robbing houses, and that their
last robbery "went bad."
testified that she had been threatened in an attempt to
discourage her from testifying against Mitchell and Smith.
Although she did not feel that Smith had threatened her,
Williams said that Smith had relayed threats from Johns.
Williams understood Johns to be "erratic" and
"[d]estructive, " and thought she would do
"crazy things sometimes" and could be a
specifically denied that Smith had told her details about the
burglary of the Hassett home while at Johns's residence,
as Johns had told police. According to Williams, if Johns
asserted that she overheard such a conversation between
Williams and Smith, that assertion would be false because
Williams and Smith "never had a discussion"
regarding a burglary that ended in a death. Williams
testified that if she had learned such information, she would
not have remained living in Johns's house.
Lott testified that she and Smith were housed in the same
area at the West Valley Detention Center in approximately the
late fall of 2005. According to Lott, she overheard Smith
telling Williams about her case and about the fact that she
had been involved in a burglary during which someone had
accidentally died. Lott also testified that she had engaged
in conversations with Smith, and that during some of these
conversations, Smith told Lott about a burglary in which an
elderly woman had been in the home. According to Lott, Smith
told her that the elderly woman was not supposed to have been
at home, and Smith had told "them" to "just
leave her alone, " and said, "[L]et's go,
let's go." But "[t]hey put a pillowcase over
her head, and the boys proceeded to beat her." Lott
testified that Smith said that "she was trying to get
them to stop."
to Lott, Smith said that they took coins, a "water
bottle with coins, " a safe, and jewelry, from the
later said that "the grandson approached [Smith] because
he wanted crack, and the boyfriend had sold crack."
According to Lott, "since he wanted the drugs, that he
knew a place where they could go and get some stuff and it
was real easy. And then he gave them the combination to the
admitted that she had been convicted of numerous crimes,
including making a false financial statement, grand theft,
perjury, possession of forged checks, commercial burglary,
and receiving stolen property. Lott testified that she had
not received any favorable treatment or other benefit as a
result of coming forward with her statements against Smith.
did not testify at trial, but Mitchell did. Mitchell said
that in 2005, he was selling drugs and living with his mother
in Rialto. Smith was his girlfriend, and was living with him
at his mother's house "off and on." Other
people also lived in the house at the time.
did not discuss criminal activity with his mother. However,
after he was released from jail in 2005, she told him to stop
whatever he was doing.
explained that he met Beck through Smith. Mitchell sold Beck
drugs in exchange for property (as opposed to money) on one
occasion. Mitchell met Beck at his mother's house. Beck
brought a "big camping tent bag" that was
"full of anything you can think of" to trade for
drugs. The bag had coins in it, including foreign currency
coins. Mitchell knew that the items were stolen property
because he had "been selling drugs for a long time"
and had learned that exchanging stolen items was "what
most people do that wants drugs from a person like
[him]." In exchange for the items, Mitchell provided
Beck with approximately $350 worth of drugs.
testified that although he was aware that the items Beck had
given him were stolen, he was unaware that the items had been
taken from the scene of a homicide. If he had known this, he
would not have taken the items, or he would have tried to
sell them to someone else. Mitchell admitted that he
attempted to pawn some of the items that Beck had traded with
to Mitchell, Smith was not involved in his drug transaction
with Beck. Mitchell was the one who handled most of the items
that Beck had given him, although he might have given Smith a
bag "to go put... somewhere." For the most part, he
was the one who had placed the items in different locations
in his mother's house and in Smith's car.
testified that sometime between 2005 and 2013, his mother had
wanted custody of his children, and he had not been willing
to agree to let her have the children. His relationship with
his mother during that time period was "[l]ike cats and
dogs. Sometimes we're cool, and sometimes we're like
absolutely not at all." After Mitchell was arrested for
Kelley's murder, Johns told him that she had gotten the
story she told police "from [Mitchell's] old
Bernardino County District Attorney filed an amended
information charging Smith, Mitchell and Beck with one count
of first degree murder (Pen. Code,  § 187, subd.
(a); count 1). The amended information also alleged two
special circumstances: (1) that the murder was committed in
the course of a robbery, within the meaning of section 190.2,
subdivision (a)(17)(A), and (2) that the murder was committed
in the course of a second degree burglary, within the meaning
of section 190.2, subdivision (a)(17)(G).
to trial, Beck withdrew her plea of not guilty and entered
guilty pleas to multiple offenses, including voluntary
manslaughter and elder abuse, pursuant to a negotiated plea
agreement in which Beck would receive a sentence of 17 years
in state prison.
began on February 6, 2014. Separate juries were empaneled for
Smith and Mitchell. Both juries found the defendants guilty
of first degree murder and found true both of the special
trial court sentenced both Smith and Mitchell to sentences of
life in prison without the possibility of parole.
defendants filed timely notices of appeal.
raises two contentions on appeal. She first argues that the
trial court prejudicially erred in instructing her jury that
any testimony from an accomplice requires
corroborating evidence before the jury may accept it as true.
As Smith correctly notes, the actual rule is that a jury may
not convict a defendant of an offense based on
accomplice testimony without corroborating evidence. There is
no corroboration requirement with respect to exculpatory
accomplice testimony. According to Smith, because Mitchell
provided testimony that tended to exculpate her, the
court's instruction erroneously told the jury that there
had to be evidence to corroborate his exculpatory
testimony before the jury could accept it as true.
second contention is that the trial court prejudicially erred
in discharging Juror No. 8 during the jury's
deliberations. She asserts that no valid grounds for
discharging this juror are apparent from the record, and
further contends that the court's removal of this
juror-the only juror who was leaning toward
acquittal-violated her right to an impartial jury and to a
unanimous verdict under the Sixth and Fourteenth Amendments.
The trial court's instruction on accomplice testimony
argues that the trial court erred in providing the jury with
an instruction based on CALCRIM No. 301 that informed the
jury that any accomplice testimony must be supported
by corroborating evidence. We agree that the court's
instruction was erroneous, and conclude that the error was
The court provided an erroneous instruction regarding
Code section 1111 places a limitation on the use of
"accomplice" testimony to convict a defendant:
"A conviction can not [sic] be
had upon the testimony of an accompliceunless it be
corroborated by such other evidence as shall tend to connect
the defendant with the commission of the offense; and the
corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.
[¶] An accomplice is hereby defined as one who is liable
to prosecution for the identical offense charged against the
defendant on trial in the cause in which the testimony of the
accomplice is given." (Italics added.)
trial court instructed Smith's jury with an instruction
(Instruction No. 12), regarding the testimony of a single
witness, which also commented on how the jury was to treat
testimony of only one witness can prove any fact. Before you
conclude that the testimony of one witness proves a fact, you
should carefully review all the evidence. However, the
testimony of Sherry Beck, Amay Lott, and portions of Kesha
Williams require supporting evidence. The testimony of
any other person you determine to be an accomplice also
requires supporting evidence." (Italics
trial court also instructed the jury with an instruction
based on CALCRIM No. 334, which informs the jury regarding
how to decide whether a witness is an accomplice and, if the
jury determines that the witness is an accomplice, instructs
the jury that it may not use an accomplice's testimony to
convict a defendant without some corroborating evidence. The
court instructed Smith's jury as follows, in relevant
part, based on CALCRIM No. 334 (Instruction No. 20):
you may consider the statement or testimony of Kiesha Smith,
Michael Mitchell, Kesha Williams, Theresa Johns, Michael
Spinks, Derrick Hassett or Christopher Mahan as evidence
against the defendants Kiesha Smith or Michael Mitchell, you
must decide whether Kiesha Smith, Michael Mitchell, Kesha
Williams, Theresa Johns, Michael Spinks, Derrick Hassett or
Christopher Mahan were an accomplices [sic] to those
crimes. A person is an accomplice if he or
she is subject to prosecution for the identical crime charged
against the defendant. Someone is subject to prosecution if:
He or she personally committed the crime;
He or she knew of the criminal purpose of the person who