P. v. Kimes

Filed 5/16/06 P. v. Kimes CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Affirmed.

Seymour I. Amster for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

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The jury found defendant Sante Kimes guilty of the first degree murder of David Kazdin in violation of Penal Code section 187, subdivision (a),^[1] additionally finding that in committing the offense, a principal was armed with a handgun, within the meaning of section 12022, subdivision (a)(1). The jury found the two alleged special circumstances to be true--defendant intentionally carried out the murder for financial gain and to prevent her victim from testifying in a criminal proceeding. (§ 190.2, subds. (a)(1), (a)(10).) In a separate trial, the jury found true a third special circumstance allegation--defendant suffered a prior conviction for second degree murder on May 18, 2000, in the Supreme Court of the State of New York. (§ 190.2, subd. (a)(2).) Defendant was sentenced to a prison term of life without the possibility of parole.

Defendant timely appealed from the judgment. She contends that (1) the trial court erroneously and prejudicially failed to instruct the jury that three prosecution witnesses--Robert McCarren, Nanette Wetkowski, and Alan Russell--were accomplices as a matter of law, requiring that their testimony be independently corroborated and viewed with caution; (2) the trial court improperly denied her motion to represent herself under Faretta v. California (1975) 422 U.S. 806, brought on the fourth day of trial; (3) she received constitutionally ineffective assistance of counsel due to inadequate impeachment of prosecution witnesses Linda Kazdin and Russell, failure to object to other aspects of the prosecution case that defendant claims were inadmissible under state hearsay law or admitted in violation of the federal Constitution's Confrontation Clause, improper questioning and comments that defendant claims impugned her veracity, and the failure to request accomplice instructions as to McCarren, Wetkowski, and Russell; and (4) the above errors had the cumulative effect of depriving defendant of a fair trial. We reject each of these contentions and affirm.

STATEMENT OF FACTS

Although defendant was not present at the time of David Kazdin's murder, the prosecution presented overwhelming evidence that defendant planned, instigated, and actively encouraged that crime for the twin purposes of realizing profits on a loan/insurance scam and eliminating a key witness to that fraudulent scheme. Her primary accomplice was her son, Kenny, who fired the fatal gunshot. Kenny, who had been charged with murder along with defendant, pled guilty to first degree murder and agreed to testify for the prosecution in return for the promise that he would not receive the death penalty. As the key prosecution witness, Kenny exposed defendant as the mastermind behind the loan/insurance fraud and the Kazdin murder. Kenny's testimony was corroborated in every salient aspect by a variety of witnesses, along with documentary and physical evidence. The prosecution case was substantially bolstered by defendant's admissions, flight, and efforts to fashion false alibis.

In order to facilitate our analysis of defendant's first contention, concerning accomplice instructions, we separately detail the testimony of the two witnesses whom the trial court identified to the jury as being accomplices (Kenny and Shawn Little), along with that of the three witnesses whom defendant contends should have also been so identified. (See People v. Hoyt (1942) 20 Cal.2d 306, 312.)

The Prosecution Case

Kenny testified that he was defendant's son. After his father's death, in order to help defendant with her financial problems, Kenny left college and returned to her home, located on Geronimo Way in Las Vegas. In October of 1997, defendant discovered that all the funds in her Bahamas bank account were gone. From that point, she desperately needed money. Russell had helped defendant form a Nevada corporation called Agakhan. Its chief asset was real property in Santa Maria, California, which was the subject of a lawsuit. Defendant explored the option of selling the Santa Maria property or the Las Vegas residence, but was unable to do so.

Defendant came up with the idea of taking a loan out on the Geronimo Way property as part of a scheme to â€