61 Cal.4th 18, S112442, People v. Smith

Docket Nº:S112442
Citation:61 Cal.4th 18, 347 P.3d 530, 186 Cal.Rptr.3d 550
Opinion Judge:Corrigan, J., expressing the unanimous view of the court.
Party Name:THE PEOPLE, Plaintiff and Respondent, v. PAUL GORDON SMITH, JR., Defendant and Appellant
Attorney:Kathy Moreno, under appointment by the Supreme Court, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Eric L. Christoffersen and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Panel:Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Liu, J., Cu
Case Date:April 27, 2015
Court:Supreme Court of California

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61 Cal.4th 18

347 P.3d 530, 186 Cal.Rptr.3d 550

THE PEOPLE, Plaintiff and Respondent,


PAUL GORDON SMITH, JR., Defendant and Appellant


Supreme Court of California

April 27, 2015

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Superior Court of Shasta County, No. 98F2652, James Ruggiero, Judge.

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Kathy Moreno, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Eric L. Christoffersen and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.


[186 Cal.Rptr.3d 555] [347 P.3d 535] Corrigan, J., expressing the unanimous view of the court.

A jury convicted defendant Paul Gordon Smith, Jr., of the first degree murder of Lora Sinner, with the special circumstance [186 Cal.Rptr.3d 556] of torture. 1 The jury also found defendant guilty of false imprisonment by violence and conspiracy to commit murder. It determined that he used a deadly weapon and inflicted great bodily injury. 2 The jury decided death was the appropriate penalty, and the court imposed that sentence. This appeal is automatic.

We affirm as to guilt, but reverse the penalty judgment. Defendant's violent attempt to escape from jail just before his trial began created difficult problems for the court at various phases of the proceedings. We conclude that during the penalty phase, the court improperly excluded expert testimony about prison security measures for those sentenced to life without possibility of parole. The evidence was admissible to rebut the prosecution's evidence and argument suggesting that defendant would pose a danger in custody. Because we cannot say, beyond a reasonable doubt, that the penalty determination would have been the same had the jury heard from defendant's expert, we must reverse the penalty judgment.


A. Guilt Phase

1. Prosecution

In December 1997, defendant was 21 years old and living with his father in Redding. During that month he met his younger half [347 P.3d 536] sister, Lori Smith, for

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the first time. Lori had been living in Washington State. Defendant's older brother, Timothy Smith, also arrived from Washington with his fiancé e, Lora Sinner. 3

Defendant married Jessica Smith in January 1998. Shortly thereafter, he began a relationship with Amy S., a 14-year-old runaway. Defendant's friend Eric Rubio became romantically involved with defendant's sister Lori. Sinner ended her engagement with Timothy and began to associate with defendant, Amy, Eric, and Lori. Toward the end of February this group, led by defendant, began an extended camping trip on private land in Shasta County.

Of the five, Sinner was the only person without a partner. She flirted with defendant, which angered Amy. Defendant returned Sinner's attention in order to maintain access to her car, which they used to drive into town from camp. About a week before Sinner's murder, Lori and Amy discussed beating her up, and defendant told Eric he wanted to " off this bitch," referring to Sinner. Lori testified that during a conversation with everyone except Sinner, defendant said Sinner should be killed. Eric remembered the conversation, but not who made the comment.

On the afternoon of the murder, Lori and Amy again spoke about beating Sinner. According to Lori, defendant encouraged them because he wanted Amy and Sinner to fight over him. Eric testified that defendant told him " the girls" wanted to fight Sinner, and he did not know what to do about it. Eric said defendant displayed no signs of intoxication that afternoon. Toward the end of the day, Amy punched [186 Cal.Rptr.3d 557] Sinner in the face. Sinner punched back, and Lori joined the fight. Defendant and Eric were in a tent about 15 feet away.

Amy testified that Lori knocked Sinner's head against a tree several times. Amy struck her in the head five or six times with a large can of chili, which she tossed aside after it was dented. Lori slammed Sinner's head into a large rock. Meanwhile, Amy retrieved two pieces of an automotive dent puller. One piece was a metal bar about an inch and a half thick and a foot long. The other was a weighted metal piece shaped like a barbell. As Sinner sat on the ground, Amy and Lori repeatedly hit her with these implements. Sinner was crying and asking them to stop. Amy admitted taunting Sinner during the assault.

Lori's account differed somewhat. She did not remember hitting Sinner's head on a tree or a rock, nor did she remember any taunting. She testified that after punching Sinner with her fists, she retrieved the dent puller bar from the

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tent. Defendant and Eric were watching the assault. Lori hit Sinner with the bar as hard as she could two or three times. She also hit her with the chili can after Amy dropped it.

Eric testified that he and defendant were in the tent when the fight started. They could hear but not see the beating. Defendant showed no interest, saying, " just let them fight." Amy had taken one piece of the dent puller from the tent, and Lori the other. Eventually, defendant intervened.

Amy confirmed that defendant stopped the fight. He told them to take Sinner down to the creek and clean her up. Lori maintained it was her idea to take Sinner to the creek. There, she and Amy scooped water onto Sinner's head to wash the blood from her hair. Eric and defendant also came to the creek. According to Lori, defendant took her aside, held out an ax, and said, " Just finish her off." Lori refused. Defendant had no apparent difficulty walking or talking; Lori did not know if he had taken any drugs that day. They all returned to the tent. Lori did not see what defendant did with the ax. The couples sat in the tent; Sinner sat on a mat outside the door.

Defendant produced a bottle of whiskey, which the couples shared. Defendant then gave the bottle to Sinner, telling her it would help with the pain. Sinner took a small drink. Defendant became angry, and asked Eric to help tie her up. After initially refusing, [347 P.3d 537] Eric put a noose around Sinner's neck. Defendant tied her hands and feet. Sinner was crying. Defendant, still angry, told her she was going to kill herself. He said she was in enough pain already and might as well join her mother, who had died recently. Declaring that Sinner's death was going to look like a suicide, defendant untied her hands, handed her a razor blade, and told her to cut her wrists. Sinner cried and refused at first, then cut her wrist once. Saying the cut was not deep enough, defendant took the blade, slashed her wrist, and handed the blade back to her. Sinner tried to inflict another wound. Defendant, unsatisfied, took the blade back and cut her wrist repeatedly.

Defendant told Sinner to hold her wrists over a firepit. Lori testified that defendant struck Sinner's hands several times with the bar when she moved them. He also kicked her in the forehead and poured whiskey over the bleeding cuts, causing Sinner to scream. He forced her to drink more liquor. Then he wrapped a plastic garbage bag around her head, cinching it tightly. Sinner continued crying and pleaded for help. Defendant struck her on the neck and back several times with the bar, then asked if anyone else wanted to [186 Cal.Rptr.3d 558] hit her, looking at Lori. Lori was scared but wanted to prove she was not afraid to hurt someone. She hit Sinner with the bar twice in the head and neck, and said she was " hard to kill." Defendant snatched the bar, told Lori she was not doing it right, and hit Sinner several more times. When a blow produced a snapping sound, he stopped.

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Eric and defendant buried Sinner. Lori testified that Eric was frightened and shaking. When the men returned, defendant said " she knew too much," and he feared she would say something. Lori understood him to mean that Sinner would tell the police he had been stealing purses from cars. Defendant warned the others that anyone who revealed what had happened would be the next to die. They agreed to say they had put Sinner on a Greyhound bus. The next morning, they burned her clothing and belongings at the burial site.

Amy's testimony about the events following the fight was roughly consistent with Lori's, though she was hazy on many details, particularly defendant's statements. She said defendant did not appear to be drunk or under the influence of drugs. She remembered Lori saying, " This bitch won't die" as she struck Sinner with the bar. Amy did not mention defendant having an ax, or asking Lori to " finish her off." Amy could hear Sinner breathing against the plastic wrapped around her head just before defendant and Eric carried her away to bury her.

Eric's account was similar. He said he did not join the others at the creek, but stayed on the bank with a flashlight, watching. He did not see defendant with an ax. Defendant said Sinner would not survive because her skull was cracked and the back of her head was " mushy." Eric admitted helping bind Sinner. He related that defendant cut Sinner's wrist, poured alcohol on the wounds, and kicked her in the head when she did not obey his directions. According to Eric, Sinner was still breathing after the final blow. Defendant then cinched the bags around her head and held them for 30 to 60 seconds, saying she would die more quickly that way.

Eric initially refused to help dispose of the body. Defendant told him he had better, " or I would end up just like her." Frightened, Eric helped defendant bury Sinner. They stripped the body first because, defendant said, it would decompose faster. Afterward, defendant instructed the others to say Sinner...

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