People v. Smith

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Stanislaus County No. 4002672, Dawna F. Reeves, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

POOCHIGIAN, ACTING P. J.

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INTRODUCTION

Appellant and defendant Derell Musantha Smith was convicted of four felonies and sentenced to a third strike term after he tried to drive over his estranged spouse and then stabbed her. On appeal, he contends the court improperly admitted evidence of his prior acts of domestic violence and abused its discretion when it denied his request to dismiss four of his five prior strike convictions. Defendant further asserts certain fees must be stricken, and the abstract of judgment must be corrected.

We order the abstract of judgment corrected and otherwise affirm.

FACTS

At the time of trial in 2019, Shannon Smith (Ms. Smith) had been married to defendant for 10 years, and they had a six-year-old child.

Prior Domestic Violence Incidents^[1]

Ms. Smith testified that in 2016, she was living in Dallas with defendant and their child, and two domestic violence incidents occurred.

Ms. Smith testified the first incident occurred sometime in 2016. She was in a car with defendant and their child, and they were stopped near a park. They argued, and defendant used a pocketknife to stab her in the leg three times. She did not require medical attention and did not report the incident to the police. Ms. Smith admitted she consumed methamphetamine the day before the stabbing incident, and she was using drugs "off and on" at that time.

Ms. Smith testified another incident occurred on a different day from the stabbing incident, in December 2016. Defendant, Ms. Smith, and their child were still in Dallas and staying at a friend's house. Defendant "beat [her] up" with his fists, gave her "black eyes and a busted lip," and she called the police. Ms. Smith admitted that when the police interviewed her, she said that she hit her own face with a closed fist in frustration

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because they were arguing. The police escorted her to a shelter that night. Ms. Smith also admitted she used methamphetamine a few nights before this incident.

After the second incident, Ms. Smith called her family, and they sent her a bus ticket so she could get back to Modesto. She stopped using methamphetamine, separated from defendant, and returned to Modesto.

Ms. Smith Obtains Custody of Their Child

Ms. Smith testified when she returned to Modesto, she filed a child custody action against defendant in California.

At trial, defendant testified that after Ms. Smith left him in Dallas in December 2016, he had custody of their child and they moved to Arkansas. Defendant further testified that his child "forcibly" removed from his custody and sent to live with Ms. Smith in California.^[2]

THE CHARGED OFFENSES

The charged offenses are based on defendant's actions on February 22, 2017, when defendant and Ms. Smith were scheduled to attend a child custody hearing at Stanislaus County Superior Courthouse in Modesto.

Defendant Confronts Ms. Smith at the Courthouse

Ms. Smith believed the hearing was supposed to start at 9:00 a.m. and drove to the courthouse with her friend, Deameatri Johns. As they looked for a parking spot, Ms. Smith saw defendant's Suburban SUV parked in the area. Ms. Smith and Mr. Johns parked two blocks away from the courthouse.

Ms. Smith and Mr. Johns walked to the courthouse and waited at an intersection to cross the street. Defendant drove up next to them in his SUV. Ms. Smith testified

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defendant told her," 'Bitch, court is over. Where is my daughter?'" Ms. Smith did not respond.

Ms. Smith testified that as she was about to cross the street, defendant drove forward and tried to hit her with his SUV. Ms. Smith stepped back to avoid defendant's vehicle, and it came within an inch of her. Defendant did not try to stop or brake, and he drove away.

Ms. Smith and Mr. Johns went into the courthouse and continued upstairs to the courtroom. There she learned she was late for the hearing, and it had to be rescheduled. They waited for the elevator and when the doors opened, defendant was inside. They got into the same elevator; Ms. Smith did not talk to him. Ms. Smith testified defendant and Mr. Johns had a cordial conversation about meeting at a park in an hour so he could see his child, and they exchanged telephone numbers. They walked out of the courthouse, and Ms. Smith and Mr. Johns went in the opposite direction from defendant.

Defendant Attacks Ms. Smith in the Alley

Ms. Smith and Mr. Johns headed back to their car and walked through an alley.

Ms. Smith was suddenly hit from behind by a vehicle that had driven through the alley, near the side of Wells Fargo bank. She fell to the ground and was stunned. She realized she had been hit by defendant, who was driving his Suburban SUV. Mr. Johns helped Ms. Smith get up, and he ran to get their car.

Defendant got out of his vehicle, reached down to get something from the driver's door, and confronted Ms. Smith against a wall. Ms. Smith testified defendant held a long knife with a wooden handle; and stabbed her in the chest area several times. Ms. Smith fell to the ground and defendant continued to stab her. As he stabbed her, defendant said more than once," 'I'm going to kill you bitch.' "

Defendant picked up Ms. Smith's purse and papers from the ground. Defendant also picked up Ms. Smith, "threw her" into his SUV, and tried to force her to stay inside. Ms. Smith resisted and kicked against the interior of the SUV's door. Defendant said he

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would kill her if she did not stop kicking, and Ms. Smith gave up because she believed his threat.

Ms. Smith testified defendant closed the SUV's door on her, and then got into the driver's seat. Ms. Smith used the opportunity to open the door next to her and jumped out of defendant's SUV. She fell to the ground because she felt "kind of wobbly" from the assault.

Ms. Smith remained on the ground and was lying on her back. She testified that defendant backed up his SUV toward her position. She raised her leg, and the vehicle's rear bumper hit her leg and hip but not the rest of her body. Defendant drove forward and left the scene.

The Witness

Kimberly Swehla was in the alley by Wells Fargo bank and heard tires screech to a stop. She saw a woman jump out of an SUV and heard the woman and a man yelling in very angry voices. She never saw the man or who was driving the vehicle. The woman was lying behind the SUV, the vehicle backed up toward her, and Ms. Swehla believed the driver was going to kill the woman. Ms. Swehla was with her young child, and they turned away so the child would not see what was going on. She heard the SUV screech away from the alley. Ms. Swehla testified that bystanders helped the woman into the nearby bank. Ms. Swehla saw blood on the ground in front of the bank.

The Security Video

Defendant attacked Ms. Smith near a business with a security camera. The police obtained the video, and it was introduced as a trial exhibit. Ms. Smith narrated the video when it was played for the jury. She stated the video showed defendant as he stabbed her multiple times, continued to stab her when she fell, threw her into his vehicle and struggled to close the door on her, backed his vehicle over her, and drove away.^[3]

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Ms. Smith's Injuries

Ms. Smith testified she was taken to the hospital and received stitches for stabs wounds on her arms and breasts. She also had stab wounds on other parts of her body that did not need stitches, and bruises from being hit by defendant's vehicle.

Ms. Smith's emergency room records were introduced as trial exhibits. According to the records, Ms. Smith received a general examination that showed she was alert and oriented, and there was no notation that she was intoxicated or under the influence. Ms. Smith had a "small 2 [centimeter] superficial skin tear to the right anterior chest wall, just under the right breast," a "4.5 [centimeter]" laceration "to the left anterior chest wall" near the left breast; a "large 12 [centimeter] gash to the right dorsal forearm area," and a "large 12 [centimeter] laceration" to the left forearm."

On her right forearm, Ms. Smith required a "complicated laceration repair" of 12 centimeters, and received nine "buried" sutures, with 16 sutures and six sutures in two layers on the edges. She received six sutures on the 4.5-centimeter wound on her left chest.^[4]

The prosecution also introduced photographs that showed numerous bruises over her body and a lengthy row of stitches on one arm.

DEFENDANT'S TRIAL TESTIMONY

Defendant testified that he remained in Arkansas after Ms. Smith obtained custody of their child. He was ordered to appear in Modesto to protect his custody rights, so he

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quit his job and drove to Modesto to attend the court hearing on February 22, 2017. Defendant testified the hearing started at 8:30 a.m., but Ms. Smith did not appear. Defendant was upset because she failed to show up.

Defendant returned to his vehicle and drove away from the courthouse. He saw Ms. Smith walking with an unknown man (later identified as Mr. Johns). Defendant believed she was "high." Defendant did not explain why he thought she was "high," but admitted he stopped at the curb, called Ms. Smith a "bitch," and yelled about missing court. He denied that he tried to hit her with his vehicle.

Defendant testified...