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People v. Smith

California Court of Appeals, Fourth District, First Division

June 9, 2017

THE PEOPLE, Plaintiff and Respondent,
KIESHA RENEE SMITH et al., Defendants and Appellants.

         APPEAL from judgments of the Superior Court of San Bernardino County, No. FSB1301449 R. Glenn Yabuno, Judge. Reversed in part and affirmed in part.

          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.

          BENKE, J.



         Defendants Kiesha Renee Smith and Michael Mitchell appeal from their judgments of conviction for the murder of Josephine Kelley. In a prior opinion, we reversed both defendants' convictions due to prejudicial error in the joint trial before separate juries.[1] Thereafter, the People petitioned for review by the Supreme Court with respect to our reversal of defendant Mitchell's conviction on the grounds the trial court erred in admitting against Mitchell, as statements against interest, hearsay evidence of statements made by codefendant Smith in which she inculpated Mitchell in the murder. The Supreme Court granted review on this issue and transferred the case to our court for reconsideration in light of its recent decision in People v. Grimes (2016) 1 Cal.5th 698 (Grimes).

         After reconsideration in light of Grimes, we find no error in the admission of evidence of statements Smith made which inculpate Mitchell. We also reject the other issues Mitchell raises on appeal. Accordingly, we once again reverse Smith's conviction but now affirm Mitchell's conviction.[2]



         A. Factual background

         1. September 2005

         Josephine Kelley was 90 years old in 2005. She lived with her daughter Susan Hassett, her son-in-law Dennis Hassett, and her grandson Derrick Hassett.[3]

         Derrick was unemployed. While living with his parents and grandmother, Derrick sold drugs and often accepted electronic devices and other goods as payment in exchange for drugs.

         Sherry Beck used drugs, including marijuana and methamphetamine, and was one of Derrick's customers. She would sometimes pay Derrick money for the drugs, but other times would trade items, such as "cell phones, DVD players, different things, " for drugs, and occasionally she used methamphetamine with Derrick.

         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. Derrick was in the garage of the home, and he and Beck met there. Derrick did not have any drugs to give Beck.

         While 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." At some point, while Beck was present, Derrick's friend Christopher Mahan showed up to "smoke... some dope" with Derrick. Beck then left the Hassett home.

         According 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. As they were leaving, 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 near the Hassett home, and Mahan went back to work.

         Susan Hassett returned home from work later 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 her mother's head, tried to wake her up and called 911.

         3. 2005 Investigation

         A postmortem examination determined 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 in the evening of September 15, Mahan returned to the house where he had dropped Derrick off earlier; Derrick was still there, and Mahan told Derrick police were at Derrick's house. Mahan had been contacted by police, and, at their request, he took Derrick to the police station. In 2005, the investigation of Kelley's murder centered on Derrick.

         Beck learned from the television news the following morning that Kelley had died and saw Derrick "in a[n] orange jumpsuit." Beck herself 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 and that she was surprised Derrick was in custody. When Beck was interviewed about the crime by police investigators, she did not refer to Smith by name but instead referred to her as "Rhonda's daughter." Beck told a detective that she did not know Smith's name. Beck also said that she did not know Mitchell's name and that she only knew that he was Smith's boyfriend.

         The District Attorney's office ultimately declined to prosecute Derrick for the crime. However, within 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 closet. While at the residence, police found a 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, some, but not all, of the 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; officers found jewelry and money inside the tackle box.

         Mitchell was arrested and charged with receiving and possessing stolen goods; however, he was later released. When Mitchell was released in October 2005, he went back to his mother's home and brought with him police reports that had been provided to his attorney with respect to the stolen property charges he was facing.

         Smith was held during the fall of 2005 on unrelated charges with or near another jail inmate, Amay Lott. At some point shortly after or near the time Smith was released from custody, Lott approached law enforcement officials and told them she overheard Smith and Smith's friend Kesha Williams talking. According to Lott, Smith told Williams she had been involved in a burglary during which someone had accidentally died.

         4. 2013 Investigation

         As of 2013, Kelley's death remained "unsolved." However, 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.

         After viewing the news story, Johns contacted police with information she believed was relevant to the Kelley murder. Johns was interviewed twice by police investigators: the first time on January 10, 2013; and the second time on January 30, 2013. Johns told the investigators that, until she saw the news story, Johns had been under the impression the victim's grandson had been arrested for her murder. Although police had not released to the general public the fact that Kelley had been found with a pillowcase over her head, Johns told police that she knew that Kelley had had a pillowcase placed over her head.

         Johns told the police during the January 10, 2013 interview that she had overheard a conversation between Smith and Williams. The conversation occurred while Williams was not in custody and had been living with Johns. According to Johns, Smith told Williams that she and Mitchell had burglarized a home and that they had to subdue an elderly woman by tying her up. Further, Smith admitted that 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 before police searched her home in 2005, she heard Mitchell talking with Michael Spinks, Johns's common law husband, in the garage of Johns's home. According to Johns, Mitchell told 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 to Spinks about the same incident.

         B. Trial court proceedings

         1. Pretrial proceedings

         Later in 2013, the San Bernardino County District Attorney filed an amended information charging Smith, Mitchell and Beck with one count of first degree murder. (Pen. Code, [4] § 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, Beck would receive a sentence of 17 years in state prison. Smith's and Mitchell's trials began on February 6, 2014; separate juries were empaneled for each defendant.

         2. Trial testimony

         a. Beck

         At trial, Beck testified that, in September 2005, she was upset with Derrick. She believed that he had not been giving her quantities of drugs commensurate with the value of the items she was bringing him.

         Beck, who had been convicted of burglarizing her own mother's home, spent time with other people who used drugs and stole things. Beck would sometimes pawn stolen items at pawn shops for other people. Beck knew Smith because they had 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 Smith and Mitchell to a pawn shop. As she, 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. Shortly thereafter, Smith and Mitchell developed a plan in which Beck would go to the Hassett home and convince Derrick to leave so that Smith and Mitchell could burglarize it.

         On September 15, 2005 Beck went to the Hassett home and did attempt to get Derrick to leave. After leaving the Hassett home, Beck saw Smith, Mitchell, and another man in a car. Beck told the occupants of the other car she did not want to have anything to do with burglarizing the Hassett home. Beck 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 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 Derrick. Beck then returned to the apartment complex where Smith lived. Although Beck was not living at the complex at that time, Beck still had friends there.

         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, which he pointed at Beck.

         b. Johns

         At trial, Johns recanted the statements that she had made during her interviews with detectives. She explained that, at the time she made the statements, she was angry with Mitchell, and she knew what the investigators wanted to hear. Johns said that she had known certain details about the crime because she 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.

         On cross-examination, Johns conceded that she was not able to locate the documents she claims she saw in 2005. The prosecution also presented evidence that, in 2005, Smith and Mitchell were only being held for possible prosecution related to their possession of stolen property and that it was unlikely any law enforcement documents provided to them would have included details about Kelley's death.

         c. Williams

         Williams testified at trial. In September 2005, she was living with Johns in Rialto, California. Williams was present when police searched the house; however, she left immediately after the search to visit her mother in Texas.

         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."

         However, Williams denied Smith told her details about the burglary of the Hassett home while at Johns's residence, as Johns had told investigators. 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.

         d. Lott

         Lott also testified at the 2014 trial. She testified that, when she was in jail with Smith in 2005, 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 "she was trying to get them to stop."

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

         e. Mitchell

         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 gave 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 given him in exchange for drugs.

         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."

         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.

         As we indicated at the outset, after we issued our prior opinion in this case reversing both defendants' convictions, the Supreme Court granted the People's petition for review and transferred the matter to this court for reconsideration in light of Grimes, supra, 1 Cal.5th 698. At our request, the parties submitted further briefing with respect to the Supreme Court's transfer order.



         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 ...

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