People v. Smith

1

THE PEOPLE, Plaintiff and Respondent, v. ANDREW THOMAS SMITH, Defendant and Appellant.

D081410

California Court of Appeals, Fourth District, First Division

June 30, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No SCN399026, Sim von Kalinowski, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Warren J. Williams Deputy Attorneys General, for Plaintiff and Respondent.

MCCONNELL, P. J.

I INTRODUCTION

A jury convicted Andrew Thomas Smith of first degree murder (Pen Code, § 187, subd. (a)),^[1] and returned a true finding on an allegation that he personally and intentionally discharged a firearm proximately causing death (§ 12022.53, subd. (d)), after Smith shot his wife in the neck and killed her. The trial court sentenced Smith to an indeterminate prison term of 50 years to life, including a term of 25 years to life for the murder conviction and a consecutive term of 25 years to life for the firearm enhancement.

In a prior appeal, we affirmed the judgment, in part, but remanded the matter to allow the trial court to exercise its sentencing discretion to strike the firearm enhancement and, in its place, impose an uncharged lesser firearm enhancement pursuant to People v. Tirado (2022) 12 Cal.5th 688 (Tirado).^[2] In this second appeal, Smith contends the trial court abused its discretion because it declined to strike the firearm enhancement altogether. Alternatively, he contends the court abused its discretion by failing to strike the firearm enhancement and, in its place, impose a lesser firearm enhancement under section 12022.53, subdivisions (b) or (c), or section 12022.5. We discern no abuse of discretion. Therefore, the judgment is affirmed.

II BACKGROUND

A. Factual Background

The following summary of facts is taken from the factual background section of this court's opinion in the first appeal, as well as the reporter's transcripts from Smith's trial. (People v. Smith (Aug. 3, 2022, D079350) [nonpub. opn.].)

Smith shot his wife, Jean Smith (hereafter, Jean), in the neck and killed her in April 2019. At the time of the murder, Smith and Jean had been married for nearly 20 years. The couple had a tumultuous relationship. Jean would often drink and verbally abuse Smith. At Smith's trial, three neighbors testified they could hear screaming and yelling from the Smith home multiple times a week. One neighbor testified that Jean hurled "verbal abuse" at Smith, like "you should kill yourself." Another neighbor testified she heard Smith yelling and using profanities, but not as often as Jean.

During the trial, multiple videos depicting Jean's drunken behavior were played for the jury, including videos in which Jean called Smith "fat, ugly, and stupid," and a "baby ass," among other belittling phrases. The jury was also shown a video, which depicts Smith calling Jean a "horrible bitch," "stupid idiot," and other disparaging names. In the video, Smith also told Jean, "Why - why don't you just shoot yourself in the fucking head?"

Smith testified about the circumstances on the day of Jean's murder. He testified he and Jean had a good day together. They even hugged, kissed, and watched a movie. However, he and Jean both got "quite drunk" as the day progressed. Around 5:40 p.m., they sat at their respective desks where Jean watched videos on her computer and Smith played solitaire on his computer. A fight broke out when Jean asked her adult son to buy more alcohol with her credit card. Smith testified he did not want Jean's son to use the credit card because Jean's son was diabetic and he might use it to buy sugary food. Smith testified he offered to give Jean's son just enough cash to buy alcohol. Jean became "furiously angry," "yelling and screaming" at him in the "regular" way. Smith testified he stood up from his desk intending to get cash for Jean's son. Instead, he took a firearm out of his pocket, turned towards Jean, and shot her in the neck as she sat facing away from him.

Smith said he "lost [his] temper" and "had enough at that time." Smith then called 911 and calmly reported that he had killed his wife. Smith showed no remorse for the murder; instead, he expressed concern about spending the rest of his life in jail and never sleeping in his own bed again. The sheriff's deputies arrived at the Smith residence to find Jean slouched over in her chair with blood on her shoulders, still clutching her computer mouse. Smith was arrested and charged with first degree murder.

After trial, the jury found Smith guilty of deliberate and premeditated first degree murder and found true an allegation that he personally and intentionally discharged a firearm and proximately caused his wife's death. Thereafter, Smith asked the trial court to reduce the first degree murder conviction to a voluntary manslaughter conviction or, in the alternative, a second degree murder conviction. The court denied the motion.

Smith appealed the first degree murder conviction, which this Court affirmed. (Smith, supra, D079350.) As part of his appeal, Smith asserted he was entitled to a resentencing hearing so that the trial court may exercise its informed sentencing discretion to strike the firearm enhancement and, in its place, impose a lesser uncharged firearm enhancement, in light of Tirado, supra, 12 Cal.5th 688. We agreed with Smith on this particular issue and remanded the matter for resentencing purposes only. (Ibid.)

B. Resentencing Hearing

At the resentencing hearing, Smith urged the trial court to strike the section 12022.53, subdivision (d) firearm enhancement altogether and to resentence him based solely on the murder charge. Alternatively, Smith asked the court to strike the firearm enhancement and, in its place, impose a lesser uncharged firearm enhancement under section 12022.53, subdivisions (b) or (c), or section 12022.5. Smith argued the greater enhancement should be stricken altogether or replaced by a lesser uncharged enhancement because the murder was connected to his own prior victimization under section 1385, subdivision (c)(2)(E). He argued he was living in a "vile environment" due to his wife's abusive behavior. He also asserted he posed no danger to the community based on his age, his background, and the circumstances of the offense. In particular, he noted he was already 61 years old, he had no prior record, and he was already serving a substantial 25-year-to-life sentence for the murder charge alone.

The prosecution argued the murder was not related to Smith's purported prior victimization, as he claimed, because Smith and Jean had "mutual" arguments back and forth with one another. The prosecution further argued Smith posed a threat to the safety of the public and any future partner should the court strike the enhancement, given that Smith owned multiple firearms and murdered his intimate partner, Jean.

The trial court declined to strike the section 12022.53, subdivision (d) firearm enhancement and resentenced Smith to 50 years to life, including a term of 25 years to life for the murder charge and a consecutive term of 25 years to life for the firearm enhancement. In coming to this finding, the court considered the nature of the present offense, Smith's background, and other individualized considerations. The court noted Smith had no prior criminal history and cooperated with the police. However, it found the nature of the present offense was the extremely violent and serious murder of Smith's wife.

The court also assessed the relevant mitigating factors set forth in section 1385, subdivision (c) to determine whether the firearm enhancement should be stricken. The court found that only one mitigating circumstance enumerated in section 1385, subdivision (c), might be relevant-Smith's claim that the murder was connected to his alleged prior victimization. (§ 1385, subd. (c)(2)(E).) The court noted Jean was the "primary perpetrator" of the domestic violence that occurred during the couple's marriage, but Smith also participated in the verbally abusive behavior.

The court found that dismissal of the firearm enhancement would endanger public safety as well. The court noted Smith acted with premeditation when he shot his wife, as she sat facing away from him, defenseless. The court noted Smith's "extreme lack of remorse" after the murder, including during the 911 call in which "he focused on himself" and whether he would ever sleep in his bed again. The court also stated Smith had viable options to get out of his contentious marriage, such as divorce or separation, and he took none of them. The court stated Smith's choice to murder Jean was a "total overreaction" to a fight that was "no different" than any other fight the couple had on any "other day for many years." Because the court found dismissal of the enhancement would endanger public safety, the court declined to dismiss the enhancement altogether.

The court then assessed whether to strike the section 12022.53 subdivision (d) firearm enhancement and impose a lesser firearm enhancement in its place. The court again considered the circumstances of the present crime and the defendant. As the court explained, the crime "involved great violence" and "a high degree of callousness." The court noted Smith was "equally verbally abusive" as Jean in "the days leading up to the shooting," exhibited a "total lack of emotion and remorse" on the 911 call, and failed "to render any aid to the victim." The court found the "great violence" of the crime, the "execution-style" nature of...