People v. Smith

         APPEAL from judgments of the Superior Court of San Bernardino County, No. FSB1301449 R. Glenn Yabuno, Judge.

          Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant Kiesha Renee Smith.

          David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant Michael Mitchell.

          Kamala 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 Respondent.

          AARON, J.

         I.

         INTRODUCTION

         Defendants 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 juries.^[1]

         II.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual background

         1. General background

         Josephine Kelley was 90 years old in 2005. She lived with her daughter Susan Hassett, son-in-law Dennis Hassett, and grandson Derrick Hassett.^[2]

         Derrick 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.^[3]

         Beck 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 mother's home.

         Beck knew Smith because they lived in the same apartment complex, which was not far from the Hassett home.^[4] Beck sometimes gave Smith rides in Beck's car. One day in September 2005, Beck drove Mitchell and Smith to a pawn shop.

         As 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 giving Derrick.

         According 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.

         2. The day of the murder

         On September 15, 2005, Beck drove to Derrick's house and tried to trade a CD player or power tools for drugs.^[5] 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.

         During 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.

         While Beck was talking to Derrick, Smith approached the house on foot and pretended to be looking for a lost kitten.^[6] 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.

         According to Mahan, Derrick and Mahan "smoke[d]... some dope" at the Hassett home.^[7] 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."

         In the 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.^[8] 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.^[9]

         Susan 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.

         It was 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."

         Later 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.^[10] 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.

         3. Additional evidence

         Beck learned from the television news the following morning that Kelley had died. She saw Derrick "in a[n] orange jumpsuit."

         According 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.^[11] Beck said that someone pointed the weapon at her.

         Beck 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 Mitchell.

         About three weeks to a month after Kelley's death, police went to the home of Mitchell's mother, Theresa Johns, looking for Smith.^[12] Officers found Smith hiding in a

         closet. 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.

         Police 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.

         During 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.

         An 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.^[13] No DNA from either Smith or Mitchell was found on the towel.

         A 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 Mitchell.

         The 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 match."

         4. Teresa Johns's 2013 conversations with police and her trial testimony

         As of 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.

         After 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.^[14]

         During 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.

         During 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.

         At 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.^[15]

         5. Additional trial testimony

         Williams 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 few weeks.

         Williams 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."

         Williams 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 "spiteful person."

         Williams 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.

         Amay 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."^[16]

         According to Lott, Smith said that they took coins, a "water bottle with coins, " a safe, and jewelry, from the residence.

         Lott 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 safe."

         Lott 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.

         6. Defense evidence

         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.

         Mitchell 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.

         Mitchell 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.

         Mitchell 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 him.

         According 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.

         Mitchell 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 discovery."

         B. Procedural background

         The San Bernardino County District Attorney filed an amended information charging Smith, Mitchell and Beck with one count of first degree murder (Pen. Code, ^[17] § 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).

         Prior 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.

         Trial 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 circumstance allegations.

         The trial court sentenced both Smith and Mitchell to sentences of life in prison without the possibility of parole.

         Both defendants filed timely notices of appeal.

         III.

         DISCUSSION

         A. Smith's appeal

         Smith 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.

         Smith's 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.

         1. The trial court's instruction on accomplice testimony prejudiced Smith

         Smith 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 prejudicial.^[18]

         a. The court provided an erroneous instruction regarding accomplice testimony

         Penal 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.)

         The 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 accomplice testimony:

         "The 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 added.)^[19]

         The 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):

         "Before 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.^[20] 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:

         "1. He or she personally committed the crime;

         "OR

         "2. He or she knew of the criminal purpose of the person who ...