People v. Smith

• Court: California Court of Appeals
• Writing for the Court: BENKE, J.
• Citation: People v. Smith, 12 Cal.App.5th 766, 218 Cal.Rptr.3d 892 (Cal. App. 2017)
• Decision Date: 09 June 2017
• Docket Number: D069445
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kiesha Renee SMITH et al., Defendants and Appellants.

12 Cal.App.5th 766

218 Cal.Rptr.3d 892

The PEOPLE, Plaintiff and Respondent,

v.Kiesha Renee SMITH et al., Defendants and Appellants.

D069445

Court of Appeal, Fourth District, Division 1, California.

Filed June 9, 2017

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.

I.INTRODUCTION

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, 207 Cal.Rptr.3d 1, 378 P.3d 320 ( 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

II.FACTUAL AND PROCEDURAL BACKGROUND

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 Chevrolet 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...