California Court of Appeals, Fourth District, First Division
from judgments of the Superior Court of San Bernardino
County, No. FSB1301449 R. Glenn Yabuno, Judge. Reversed in
part and affirmed in part.
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.
In a prior opinion, we reversed both defendants'
convictions due to prejudicial error in the joint trial
before separate juries. 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).
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
AND PROCEDURAL BACKGROUND
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.
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.
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.
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 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.
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.
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.
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."
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
Trial court proceedings
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,  § 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, 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
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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 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.
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.
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
juries found the defendants guilty of first degree murder and
found true both of the special circumstance allegations.
trial court sentenced both Smith and Mitchell to sentences of
life in prison without the possibility of parole.
defendants filed timely notices of appeal.
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.
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