P. v. Smith

Filed 3/9/10 P. v. Smith CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARVIN VERNIS SMITH,
Defendant and Appellant.
G040107
(Super. Ct. No. 07CF1791)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Reversed.
Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan and Benjamin
Owens for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant
Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *

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The trial court sentenced defendant Marvin Vernis Smith to 25 years to life
in prison after a jury convicted him of first degree murder for the death of his wife
Minnie Smith. On appeal, defendant asserts several claims of evidentiary and
instructional error. We agree the evidence failed to support the trial court‟s decision to
instruct the jury on aider and abettor liability and that it prejudicially erred in doing so.
Therefore, we reverse the judgment.
FACTS
Shortly after 6:30 p.m. on December, 15, 2005, police officers went to the
home of defendant and his wife in response to defendant‟s 911 call reporting he believed
an intruder was in the residence. After entering the house, the police found Smith on the
floor of the upstairs master bedroom dead from blunt force injuries to her head.
Subsequent investigation determined the fatal blows came from a log roller kept next to
the downstairs fireplace. The victim was lying face down, wearing a nightshirt covering
only the upper part of her body with her hands and arms bound behind her back by a wire
coat hanger tied around the wrists. One foot missing a sock had burn marks.
Investigators found matches, charred material, and pieces of duct tape near the body.
The police also found evidence of a break-in. A kitchen window was open
with the outer screen removed. Just inside the window, a vase lay on its side on the floor.
Drawers were open in several rooms throughout the house. In the master bedroom closet,
a portion of the carpeting had been pulled back disclosing a floor safe with the lid open
and no valuables inside of it.
When questioned later that evening about valuables kept in the home,
defendant specifically mentioned a diamond encrusted gold medallion, a diamond
encrusted Cadillac emblem, and a diamond ring he kept in the master bedroom armoire.
Defendant participated with the police in a videotaped walk-through of the house one

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week later. Before the walk-through, the police replaced the lid to the floor safe and
covered it with the carpet. The aforementioned jewelry items plus a bottle of liquor were
the only things defendant identified as missing. Defendant claimed the safe should
contain his wife‟s jewelry and $30,000 in cash. The police arrested him the next day
after discovering bags with the missing jewelry, Smith‟s social security card, and her
other valuables in the trunk of his car inside plastic bags wrapped with duct tape.
The prosecution theorized that defendant killed his wife on the morning of
December 15 and then staged the home to appear as if it had been burglarized. In
addition to discovering Smith‟s body next to an unmade bed dressed only in a nightshirt
with a matching nightcap underneath her head, an autopsy revealed she had no food in
her stomach. A police officer who saw the body the evening of December 15, observed
dried streaks of blood ran on the victim‟s face and dried blood on the carpet under her
head. Bennie Thomas, Smith‟s son, testified he called his mother around 9:00 a.m. on
December 15, but she did not answer the phone and, contrary to her usual habit, did not
return his call within an hour.
The pathologist who examined Smith‟s body testified to the absence of
bruising on her wrists indicated the wire hanger used to bind the hands and arms had been
affixed at or about the time of her death and that she had not struggled with her attacker.
An investigator who examined the body at the home the day after the murder opined
Smith died sometime between 5:30 a.m. and 5:30 p.m. on December 15.
The duct tape found near Smith‟s body came from the same roll of tape
used on the bags containing the jewelry found in defendant‟s car and found in the garage
of the residence. Forensic testing found defendant‟s DNA profile on the log roller below
the handle, one of the burned matchsticks, and the duct tape next to the victim‟s body,
plus the duct tape used to wrap the jewelry found in his car.
A neighbor‟s tool box was discovered adjacent to the wall separating that
yard from the Smith‟s residence, but a police officer noted there was no disturbance of

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any dust or debris that would suggest a person had stood on the tool box or climbed over
the wall. Nor was there any evidence someone had traversed the yard between the block
wall and kitchen window. There were no foot prints in the planter below the window and
the screen removed from it had been placed where it would have been in the way if a
burglar attempted to leave the residence by that route. Nor was there any scuffing on the
window sill. The ceramic vase lying on the floor below the window was not damaged.
The drawers removed from furniture had been neatly stacked and the
contents of some drawers did not appear to have been disturbed. Although the master
bathroom was ransacked, the police found a gun, an item considered to have “a high
street value,” in one of the drawers. A second six-foot tall safe located in the garage that
contained several guns and a twelve-inch high stack of $2 bills was left undisturbed as
were wrapped Christmas gifts kept in a downstairs bedroom.
Defendant made inconsistent statements. During the 911 call and when
questioned by the police later that evening, he claimed to have entered the house through
the front door. Thomas testified defendant‟s practice was to enter the house through the
garage where the police found Smith‟s car. Defendant told the police he believed his
wife was not home, in part because the front sunshade screen, which she usually kept in
the up position, was down. He also claimed he could not find the switch to raise the
sunshade screen. The police officers who responded to defendant‟s 911 call testified the
screen was up when they arrived. One of the officers participating in the crime scene
investigation testified the sunshade screen switch glowed in the dark. When questioned
by the police on December 15, defendant said he and his wife never locked the floor safe
in the master bedroom closet. During the walk through one week later defendant claimed
his wife kept the floor safe locked and denied he knew the combination to it.
The prosecution also presented evidence that during the marriage defendant
and his wife had fights and defendant engaged in extramarital affairs with other women.
Samuel Matthews, who had worked at a liquor store owned by defendant, testified

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defendant “would . . . say he wish[ed] it was just him and his dog or just him by himself.”
On another occasion, defendant told Matthews “the only way to get out of the marriage
[was] they had to die,” because he was “not going to give Minnie half of what I got so
another man can live off of it.”
The defense claimed defendant was not present when the murder occurred
and could not have committed it himself. He presented evidence disputing the
prosecution‟s claims concerning the time of death, the staging of a burglary, and the state
of the marriage. The defense also presented evidence detailing defendant‟s whereabouts
on December 15, and that he had undergone rotator cuff surgery on his left shoulder in
early November 2005 and would not have been able to strike the fatal blows.
Two witnesses testified to seeing a white vehicle in the Smith‟s driveway
on the afternoon of December 15. Ada Moses, defendant‟s ex-wife, testified she saw the
jewelry found in defendant‟s car several months before the murder when she placed some
gardening tools in the trunk in preparation for visit of their daughter‟s grave. In addition,
defendant presented evidence suggesting Matthews may have killed Smith. Matthews
purportedly owed defendant a substantial amount of money. He knew defendant had
safes in the house and was aware of some details about the crime.
DISCUSSION
1. Introduction
During opening statement, the prosecutor asserted defendant “murdered his
wife . . . and then he staged the crime scene to make it look like a burglary . . . to avoid
detection.” After the close of evidence, he asked the court instruct the jury on aider and
abettor liability. “The jury doesn‟t have to necessarily believe, and I think defense
counsel will argue that the defendant did not or could not have committed the crime
himself. But that doesn‟t mean that if he didn‟t commit the crime himself, that if they

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find that he aided and abetted in the crime that he‟s still not guilty of the crime. [¶] So if
he didn‟t swing the murder weapon, it doesn‟t mean he‟s not guilty of the crime.”
Over defense counsel‟s objection, the trial court agreed to instruct the jury
using CALCRIM Nos. 400 and 401. Noting the “considerable evidence . . . from both
sides regarding the issue of whether or not [defendant] had the ability to use this
particular object in a particular manner to inflict the blow that resulted in Mrs. Smith‟s
death” and “with respect to circumstances that point to [defendant] having been
involved,” the court ruled “the instruction[s] should be given, based on the current state
of the evidence so that the jury‟s not left . . . without guidance from the court as to what
do we do . . . [¶] [i]f we determine that [defendant] was involved in this, but he‟s not the
person who actually hit Mrs. Smith with that fireplace tool . . . .”
2. Sufficiency of the Evidence Supporting an Aiding and Abetting Theory
Defendant challenged use of an aiding and abetting theory, in part, arguing
the evidence did not support this theory because “liability may not be predicated on a
defendant‟s aiding of an unknown principal, „created from the whole cloth of pure
speculation.‟ [Citation.]” Respondent claims that “as the trial court noted, there was
evidence, primarily advanced by the defense, that someone other than [defendant]
wielded the fireplace tool,” but, given the prosecution‟s evidence of his involvement,
“[e]ven if the jury accepted the defense theory on this point, it could nonetheless have
concluded that [defendant] accomplished the murder with the assistance of another.”
Defendant has the better argument.
“„The test for determining whether instructions on a particular theory of
guilt are appropriate is whether there is substantial evidence which would support
conviction on that theory. [Citation.] To determine whether there is substantial evidence
to support a conviction we must view the record in a light most favorable to conviction,
resolving all conflicts in the evidence and drawing all reasonable inferences in support of

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conviction. We may conclude that there is no substantial evidence in support of
conviction only if it can be said that on the evidence presented no reasonable fact finder
could find the defendant guilty on the theory presented. [Citation.]‟ [Citations.]”
(People v. Campbell (1994) 25 Cal.App.4th 402, 408.)
Under Penal Code section 31, “All persons concerned in the commission
of a crime, . . . whether they directly commit the act constituting the offense, or aid and
abet in its commission, or, not being present, have advised and encouraged its
commission, . . . are principals in any crime so committed,” and therefore one “who aids
and abets a crime is guilty of that crime even if someone else committed some or all of
the criminal acts. [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) But
“for a defendant to be found guilty under an aiding and abetting theory, someone other
than the defendant must be proven to have attempted or committed a crime; i.e., absent
proof of a predicate offense, conviction on an aiding and abetting theory cannot be
sustained.” (People v. Perez (2005) 35 Cal.4th 1219, 1225.) “Without proof of a
criminal act by [a perpetrator] to which [the defendant] contributed, the prosecution could
not convict [the defendant] as an aider and abettor. [Citations.]” (Id. at p. 1227.)
In People v. Singleton (1987) 196 Cal.App.3d 488, after stopping a car in
which the defendant was riding as a passenger, the police found numerous bindles of
cocaine in one of her boots. Charged with possessing cocaine for sale, the defendant
claimed the driver gave her the bindles and asked her to hide them for him. The trial
court instructed the jury on an aiding and abetting liability theory because the prosecutor
contended she could be found guilty if she assisted someone, other than the driver, sell
the cocaine.
The Court of Appeal reversed. “[W]e can find no evidentiary foundation
for accomplice liability hinged solely upon the prosecution‟s theory that [the] defendant
aided and abetted an anonymous „Mr. X.‟ In cases which have upheld accomplice
liability in narcotics transactions, there has always been evidence of a principal whom the

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defendant in some way knowingly assisted in the accomplishment of a criminal objective.
[Citations.] We have found no case, however, and none has been cited to us, where guilt
of aiding and abetting has been upheld despite the total absence of any proof of a
perpetrator. We cannot accept the notion that a defendant‟s conviction can rest solely on
a theory of aiding, promoting, encouraging, or instigating a principal created from the
whole cloth of pure speculation.” (People v. Singleton, supra, 196 Cal.App.3d at p. 493.)
The prosecution‟s evidence supported a conclusion defendant killed Smith.
His DNA profile was found on the murder weapon and artifacts found around her body.
He made inconsistent statements to the police. The evidence suggested the purported
burglary had been staged. The duct tape found near Smith‟s body also contained
defendant‟s DNA profile and came from the same roll used to wrap up the valuables
discovered in defendant‟s car that he claimed were “missing” after the burglary.
On the other hand, defendant presented testimony the murder occurred after
he left for work on December 15 and that he did not return home that day until shortly
before making the 911 call. In addition, the defense presented evidence defendant‟s
recent rotator cuff surgery rendered it impossible for him to swing the log roller with
sufficient force to kill his wife as claimed by the prosecution. Thus, while there was
evidence that Smith was murdered, other than by defendant, no proof was presented that
another person participated in accomplishing this criminal enterprise.
Respondent relies on People v. Staten (2000) 24 Cal.4th 434 to support the
use of aiding and abetting instructions in this case. There the defendant was charged with
and convicted of murdering his parents. At trial, over a defense objection, the trial court
gave aiding and abetting instruction noting, “„the People‟s theory is that the defendant
was involved; that they have no direct evidence that he was the perpetrator, even though
that‟s also their theory, that (A) he was the perpetrator; (B), if he wasn‟t, he‟s an aider
and abettor.‟” (Id. at p. 457.)

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The Supreme Court affirmed the conviction, rejecting the defendant‟s claim
the trial court erred by giving aiding and abetting instructions because “no evidence was
presented from which the jurors could reasonably infer that he had arranged with an
accomplice to murder his parents.” (People v. Staten, supra, 24 Cal.4th at p. 458.)
“There was sufficient basis for the jury to find from the evidence that defendant could
have been guilty as an aider and abettor: he had discussed the idea of killing his parents
with friends, and the lack of forcible entry on the night of the murders suggested that he
either committed the killings himself or left the house unlocked for the actual killers. His
defense that he was not at home at the time of the killings and that one person could not
have committed both murders was not inconsistent with a theory of aiding and abetting.
If the jury had accepted his evidence on that point, it could nonetheless reasonably have
concluded that he accomplished the murders with the aid of others.” (Id. at pp. 458-459,
fn. omitted.)
Here, unlike Staten, the prosecutor proceeded solely on the theory
defendant killed his wife. The request for instruction on aiding and abetting came after
the close of evidence because he was concerned the strength of the defense evidence
might engender a reasonable doubt as to this theory in the minds of some jurors. Also, in
finding the evidence sufficient to support an aiding and abetting instruction, Staten noted
the defendant “had discussed the idea of killing his parents with friends . . . .” (People v.
Staten, supra, 24 Cal.4th at p. 458.) Other than Matthews‟s testimony that at some point
in the past defendant had made general comments about his desire to live alone and that
he would never divorce his wife, we have no evidence defendant discussed killing her
with anyone or that he attempted to hire another to commit the murder.
An instruction on aiding and abetting as an alternative theory of liability is
not justified merely because a defendant presents an arguably successful defense
concerning his identity as the perpetrator of a crime. Thus, we conclude the evidence
failed to support the giving of aiding and abetting instructions in this case.

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3. Prejudice
The remaining question is whether the giving aiding and abetting
instructions in this case constituted prejudicial error. We think so.
The error committed involved instructing the jury on a theory not supported
by the evidence. Thus, it constituted “state law error[]” (People v. Perez, supra, 35
Cal.4th at p. 1232), and an appellate court generally “must assess the entire record,
„including the facts and the instructions, the arguments of counsel, any communications
from the jury during deliberations, and the entire verdict[]‟ [citation],” and “affirm
„unless a review of the entire record affirmatively demonstrates a reasonable probability
that the jury in fact found the defendant guilty solely on the unsupported theory.‟
[Citation.]” (Id. at p. 1233; see also People v. Watson (1956) 46 Cal.2d 818, 836.)
The prosecution tried this case on a theory defendant killed his wife and
staged it to look like a burglar had broken into the house and killed Smith when she
confronted him. In response, the defense presented evidence suggesting defendant had
left for work before she was killed and that his recent surgery precluded him from
striking the fatal blows in any event. Only after the close of evidence did the prosecutor,
concerned about the strength of the defense evidence, ask for an instruction on aiding and
abetting as an alternate theory of liability. While the prosecutor declared aiding and
abetting was “not [his] theory,” he acknowledged some jurors might believe defendant
was “in on [the crime], but . . . not sure that he could have wielded the weapon.”
During their nearly five hours of deliberations, the jurors sent out a request
for some trial materials including the log roller and “medical records from [the] surgeon
& physical therapist . . . .” This request suggests the jurors focused on whether defendant
had the physical strength to beat his wife to death.
Finally, the error in giving the aiding and abetting instructions was
exacerbated by the court‟s reading of portions of the standard instructions applicable only
to the natural and probable consequences doctrine and withdrawal of one who aids and

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abets a crime. When a trial court erroneously instructs the jury, “„the question we ask is
whether there is a reasonable likelihood that the jury construed or applied the challenged
instruction[s] in an objectionable fashion.‟ [Citation.]” (People v. Osband (1996) 13
Cal.4th 622, 679.) But where, as here, the instructions on aiding and abetting were not
only unsupported by the evidence, but also referred to entirely inapplicable legal
principles, it is difficult to apply the general presumption that “„jurors . . . understand and
faithfully follow instructions.‟ [Citation.]” (People v. Smith (2007) 40 Cal.4th 483, 517-
518.)
Under these circumstances, we conclude the trial court committed
prejudicial error by instructing the jury on aiding and abetting as an alternate theory of
liability in this case.
DISPOSITION
The judgment is reversed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
O‟LEARY, J.
IKOLA, J.

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