Filed 9/17/20 P. v. Smith CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MIRRA NOVAK SMITH,

Defendant and Appellant.

 D075784

 (Super. Ct. No. SCN350521)

APPEAL from a judgment of the Superior Court of San Diego County, 

Harry M. Elias, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Daniel B. 

Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

I.

INTRODUCTION

A jury found Mirra Novak Smith guilty of one count of animal cruelty 

(Pen. Code, § 597)1 (count 1)2 and five counts of animal abuse or neglect 

(§ 597, subd. (b)) (counts 2–6). After the trial court granted Smith a new trial 

on the animal abuse or neglect counts (counts 2–6), the prosecutor dismissed 

those charges.3 At sentencing, the trial court reduced the remaining felony 

animal cruelty conviction to a misdemeanor pursuant to section 17, 

1 All subsequent statutory references are to the Penal Code, unless 

otherwise specified.

2 Count 1 pertained to a horse that Smith owned, named LP Daredevil 

(LP).

3 Smith filed a motion for new trial on counts 2–6 pursuant to the 

“statutory preemption doctrine,” which precludes the People from charging a 

defendant under a “ ‘more general law,’ ” when a more “ ‘specific provision,’ ”

applies to the conduct at issue. The trial court granted a new trial as to these 

counts. This appeal pertains solely to Smith’s conviction on count 1, the 

animal cruelty charge pertaining to LP.
3

subdivision (b),4 and placed Smith on three years of summary probation,

subject to various conditions.

On appeal, Smith claims that the “corpus delicti of the charged 

crime . . . was not established independent of [her] extrajudicial statements.”

(Capitalization omitted.) Smith’s argument is premised on the corpus delicti

rule, which “ ‘requires corroboration of the defendant’s extrajudicial 

utterances insofar as they indicate a crime was committed . . . .’ ” (People v. 

Krebs (2019) 8 Cal.5th 265, 317 (Krebs).) We conclude that the People 

sufficiently corroborated Smith’s extrajudicial statements and thus satisfied 

the corpus delicti rule.

4 Notwithstanding the trial court’s reduction of the animal cruelty 

conviction to a misdemeanor, we have jurisdiction over Smith’s appeal. (See 

Cal. Rules of Court, rule 8.304, subd. (a)(2) [outlining rules governing the 

filing of a notice of appeal in a “felony case,” and defining “felony case,” to 

include “[a]n offense filed as a felony but punishable as either a felony or a 

misdemeanor, and the offense is thereafter deemed a misdemeanor under 

Penal Code section 17(b)” (id. at (a)(2)(C))].)
4

II.

FACTUAL BACKGROUND5

On August 29, 2013, the Department of Animal Services (the 

Department) received a report that Smith’s horses were underweight and 

lacked water. Two days later, Department officers met with Smith at her 

property. Smith showed the officers where she kept approximately 50 horses. 

Some of the horses appeared to be very underweight. According to one of the 

officers, a horse named LP was so “severely underweight” that its bones were 

abnormally visible. The officer determined that LP needed immediate 

veterinary care. A second horse required immediate veterinary care related 

to its hooves.

On September 15, an officer returned to Smith’s property. The officer 

discovered that Smith had not obtained veterinary care for LP or for the 

other horse in need of care. The officer provided Smith with notice that, if 

she failed to obtain treatment for the horses, the Department might seize the 

two horses. Shortly thereafter, Smith obtained veterinary care for LP and 

5 In part III.B, post, we summarize the evidence presented at trial, apart 

from Smith’s statements, that satisfy the corpus delicti rule. Because, for 

reasons that we explain in part III.B, post, the corpus delicti rule was 

satisfied, Smith’s “ ‘extrajudicial statements . . . [could] be considered for 

their full value to strengthen the case on all issues.’ ” (People v. Dalton

(2019) 7 Cal.5th 166, 218 (Dalton).) Thus, in our factual background, we 

summarize the evidence presented at trial, including Smith’s statements.
5

the other horse. During an inspection in November 2013, an officer discussed 

with Smith various ways of improving the care of her horses and told her that 

the Department would be checking up on her in four or five months.

In April and May of 2014, the Department repeatedly attempted to 

contact Smith, but she failed to respond to the inquiries. On June 18, 2014, 

an officer surveilled Smith’s property from a helicopter and determined that 

Smith still had animals, which the officer believed to be horses, on the 

property.

On June 23, 2014, Department Officer Julia Bixby went to Smith's 

property and observed LP. Bixby issued another pre-impoundment notice to 

Smith that directed her to obtain veterinary care for LP or risk 

impoundment. Officer Bixby testified that, after issuing the impoundment 

notice, she and Smith had the following conversation:

“When I told Ms. Smith she needed to provide veterinarian 

care, she said she would probably end up just shooting the 

horse which is legal. You’re allowed . . . to euthanize your 

horse or your animal in a humane manner by shooting. 

You must shoot to kill. You cannot shoot to maim. And 

you cannot let it suffer. So[,] there are prescribed ways to 

shoot livestock, and we did discuss that. We discussed 

what was inhumane. Ms. Smith told me she’s a really good 

shot, it would be a very humane euthanasia for him.”
6

On or around June 30, 2014, Smith exchanged text messages with a 

friend named K.B. concerning euthanizing LP.6 In one of the text messages, 

Smith asked K.B., “What happens if I inject [C]lorox or gasoline, is that 

terrible?” K.B. responded, “Gasoline will kill him.”

Shortly thereafter, Smith texted K.B., “What would u think 50cc?” K.B. 

responded, “It takes 100[ ]ml of euth. [s]olution.” Smith texted, “So 100 of 

gasoline?” K.B. responded, “Get anything in the carotid . . . & he will drop 

like light[ ]ning.”

A few minutes later, Smith texted K.B., “So I should just knock him 

out, put in an IV . . [.] And inject gasoline til he dies?” K.B. responded, 

“Look . . . I cant do this any more . . . calla vet in the morning.”

On June 30, Smith spoke to Officer Bixby on the phone. Smith 

informed Officer Bixby that she had “euthanized LP.” Officer Bixby 

responded that she would discontinue proceedings concerning LP as soon as 

she received photographs of LP’s deceased body.7 Smith sent Bixby 

photographs of LP lying on the ground, apparently dead.

6 We have reproduced the text messages as they appear in the record. 

The grammatical errors are in the original messages.

7 Officer Bixby testified, “I told her as soon as I receive[d] the 

photographs of LP dead that I would hand off the call . . . . Then I received 

photographs of LP that presumably showed him dead.”
7

On June 30, Smith texted K.B., “So I sent you this pic. Does he look 

dead to you? He was barely breathing. I could have sworn he was on his way 

out.”

K.B. responded, “He looked dead but they will find him when they come 

out. What did you use because he may still go into organ failure this week.”

Two minutes later, Smith texted K.B. back, “Gasoline after I knocked 

him out.”

On July 3, Smith texted K.B., “LP died during the night.”

Approximately, two months later, on August 23, 2014, the Department 

executed a search warrant on Smith’s property during which the Department 

seized 31 horses. Officers did not recover LP or his body. Several of the 

horses were extremely underweight and had other medical conditions 

consistent with neglect.

A veterinarian testified that he had never heard of anyone injecting a 

horse with gasoline as a way of euthanizing a horse. The veterinarian 

testified that it was “difficult for [him] to envision it,” and stated, “I can only 

imagine [t]hat the horse would suffer essentially.” The veterinarian 

explained that injecting a horse with gasoline would cause the horse to suffer 

“death by toxic overload.” When asked whether it “would . . . be a quick 

death,” the veterinarian responded, “I do not believe so.”
8

III.

DISCUSSION

There is sufficient evidence in the record to satisfy the corpus delicti rule

Smith claims that the People failed to establish the corpus delicti of the 

animal cruelty charge. Specifically, Smith argues that, apart from her 

extrajudicial statements, there was “no physical evidence as to how LP died,”

nor any physical evidence that “LP in any way suffered.” Thus, Smith 

contends, there was not sufficient independent evidence, apart from her 

statements, demonstrating that she killed LP with malice, as required to 

prove the animal cruelty charge.

A. Governing law and standard of review

1. The corpus delicti rule

“ ‘To convict an accused of a criminal offense, the prosecution must 

prove that . . . a crime actually occurred.’ [Citation.] ‘[T]he corpus delicti or 

body of the crime . . . cannot be proved by exclusive reliance on the 

defendant’s extrajudicial statements.’ [Citation.]” (Dalton, supra, 7 Cal.5th 

at p. 218.) Thus, as noted in part I, ante, the corpus delicti rule requires 

corroboration of the defendant’s out-of-court statements for purposes of 

proving the commission of a crime. (Krebs, supra, 8 Cal.5th at p. 317.) In 

Krebs, the Supreme Court described the quantum of proof sufficient to satisfy 

the rule as follows:
9

“ ‘The amount of independent proof of a crime required [to 

satisfy the corpus delicti rule] is quite small.’ [Citation.] 

The prosecution need not adduce ‘independent evidence of 

every physical act constituting an element of an offense.’ 

[Citation.] Instead, it need only make ‘some indication that 

the charged crime actually happened,’ so as to ensure ‘that 

the accused is not admitting to a crime that never 

occurred.’ ” (Ibid.)

Similarly, in Dalton, the Supreme Court emphasized that only 

“ ‘slight’ ” (Dalton, supra, 7 Cal.5th at p. 218) independent evidence need be 

present to satisfy the corpus delicti rule:

“ ‘The independent proof may be circumstantial and need 

not be beyond a reasonable doubt, but is sufficient if it 

permits an inference of criminal conduct, even if a 

noncriminal explanation is also plausible. [Citations.] 

There is no requirement of independent evidence “of every 

physical act constituting an element of an offense,” so long 

as there is some slight or prima facie showing of injury, 

loss, or harm by a criminal agency. [Citation.] In every 

case, once the necessary quantum of independent evidence 

is present, the defendant’s extrajudicial statements may 

then be considered for their full value to strengthen the 

case on all issues.’ ” (Ibid.)8

8 The trial court instructed the jury concerning the corpus delicti rule 

pursuant to CALCRIM No. 359 as follows:

“The defendant may not be convicted of any crime based on 

their out-of-court statements alone. You may only rely on 

the out-of-court statements to convict them if you conclude 

that other evidence shows that the charged crime was 

committed. That other evidence may be slight and need be 

only enough to support a reasonable inference that the 

crime was committed.

“The identity of the person who committed the crime may 

be proved by the defendant’s statement alone. You may not 
10

“[W]e independently review whether the prosecutor put forth the 

requisite independent proof to establish the corpus delicti.” (In re D.A. (2018) 

24 Cal.App.5th 768, 771.)

2. Relevant substantive law

Section 597, subdivision (a) provides in relevant part:

“[E]very person who maliciously and intentionally maims, 

mutilates, tortures, or wounds a living animal, or 

maliciously and intentionally kills an animal, is guilty of a 

crime . . . .”

The trial court instructed the jury on the elements of the animal 

cruelty charge pursuant to a modified version of CALCRIM No. 2953, as 

follows:

“The defendant i[s] charged in count one with cruelty to 

animals in violation of . . . section 597[, subdivision] (a). To 

prove the Defendant is guilty of this crime, the people must 

prove that[:]

“one, the defendant maimed, mutilated, tortured, wounded 

or killed a living animal[;] and[ ]

“two, the defendant acted maliciously.

“Torture means every act, failure to act or neglect that 

causes or permits unnecessary or unjustifiable physical 

pain or suffering.

“Maiming means disabling or disfiguring an animal 

permanently, or depriving it of a limb, organ or other part 

convict the defendant unless the people have proved their 

guilt beyond a reasonable doubt."
11

of their body. Someone acts maliciously when he or she 

intentionally does a wrongful act or when he or she acts 

with the unlawful intent to disturb, annoy, or

injure an animal.”9

B. Application

There is evidence in the record, independent of Smith’s statements, 

sufficient to satisfy the corpus delicti rule. We review that evidence below.

To begin with, Smith sent Officer Bixby photographs on June 30, 2014 

that appeared to depict LP’s deceased body.10 Officer Bixby described one of 

the photographs (Exhibit 80) as follows:

“Picture 80 shows LP on the ground laying [sic] on his side 

with his head down on the ground, and he’s wearing a 

halter. Just . . . basically the main part of the picture 

shows his head in the foreground, head to the shoulders. 

On this side of the picture, on the bottom side of the 

picture, we see part of the pipe corral that he was in.”

Officer Bixby testified concerning a second photograph (Exhibit 81) that 

also depicted LP lying against the pipe coral wall. Officer Bixby stated that it 

9 Smith does not dispute that CALCRIM No. 2953 properly states the 

elements of the crime.

10 Smith’s extrajudicial statements, referred to in part II, ante, indicate 

that LP likely was not dead at the time the June 30 photographs were taken. 

At 9:06 a.m. on June 30, in response to K.B.’s text, “What did you use[?],”

Smith texted K.B., “Gasoline[,] after I knocked him out.” On July 3, Smith 

texted K.B., “LP died during the night.”
12

was unusual for a person to euthanize a horse inside a corral. Officer Bixby 

explained:

“Generally[,] when people choose to euthanize their animal, 

they euthanize them outside of the corral. There’s different 

reasons why you would want that. One is when you 

euthanize an animal that weighs hundreds of pounds, you 

don’t know which way they’re going to fall. So[,] they sway, 

they can fall side to side. They can fall forward backward. 

So[,] you do not want to be inside of a corral with them 

when that happens. You want to be in an open area so you 

would move them out to where you are not in a corral.

“In addition, just talking about the simple logistics of 

disposal, you’re going to need to get a tractor or some sort 

of thing in there to pull it out so you can dispose of them. It 

is going to be extremely tough to pull an animal this size 

out of a corral to go and bury it somewhere.”

Officer Bixby also testified that there were markings on the ground in 

the photograph that were consistent with LP having “suffered”:

“I can see here that there’s a ridgeline of dirt that makes a 

semicircle where . . . like a little wall of dirt has been made. 

Oftentimes when an animal goes down on the ground and 

is struggling to get up, they’ll start paddling their feet 

struggling to get up. We call it digging a grave. So[,] he 

was basically suffering before he presumably was dead in 

this photograph. He was struggling to get up. Horses are a 

prey animal ultimately, and they do not want to be on the 

ground unable to get up. They want to get up bad so 

they’re not pr[e]y.”

Department Lieutenant Mitchell Levy also viewed the photographs of 

LP lying on the ground. Lieutenant Levy stated that when he looked at the 

photographs, he could see that “it was a horse down on the ground, it was [a]
13

horse that was probably dead, but there [were] some unusual situations 

about the horse.” Levy explained that although an “acceptable [way] of 

euthanizing a horse is by gunshot,” there “was no blood anywhere” in the 

photographs, which suggested that LP had not been shot.

Thus, the record contains photographs that Smith sent Officer Bixby on 

June 30 that suggested that LP appeared to have “suffer[ed]” before dying, 

that LP was lying on the ground in a location that would not commonly be 

used to euthanize a horse, and that there were no indications that LP had 

been euthanized by way of a gunshot.

In addition to the photographic evidence, the statements that K.B. 

made to Smith just before LP’s death also support the conclusion that Smith 

injected LP with gasoline. K.B. texted Smith on or about June 30, “Gasoline 

will kill [LP].” Minutes after sending this text, K.B. texted Smith, “Get 

anything in the carotid . . . & he will drop like light[ ]ning.” K.B.’s statements 

to Smith that gasoline would kill LP and that an injection into the carotid 

artery would cause him to “drop like light[ ]ning,” corroborates evidence of 

Smith’s statements that she killed LP by way of a gasoline injection.11 In 

11 While we agree with Smith that “appellant’s admissions contained in 

the text messages,” may not be used to satisfy the corpus delicti rule, Smith 

fails to present any argument pertaining to K.B.’s statements in the text 

messages in the legal argument section of her brief. (Italics added.)

The People also do not specifically address K.B.’s statements in the text 

messages in the legal argument section of their brief.
14

addition, the People presented expert testimony that injecting a horse with 

gasoline would likely cause the horse to suffer.

The People also presented evidence regarding the animal control 

officers’ observations and interactions with Smith pertaining to LP. On June 

23, 2014, Officer Bixby observed LP. Officer Bixby determined that LP was 

in need of immediate veterinary care and directed Smith to obtain such care, 

or the Department might impound LP. On June 30, Officer Bixby indicated 

to Smith that Officer Bixby would discontinue proceedings pertaining to LP 

“as soon as [Officer Bixby] receive[d] photographs of LP [deceased].” In 

response, Smith sent Officer Bixby the photographs discussed ante (Exhibits 

80 and 81). The People also presented evidence that LP was not present on 

Smith’s property when officers conducted a search of Smith’s residence on 

August 23, 2014, despite having been there on June 23, when Bixby observed 

him. In addition, while conducting the August 23 search, officers found 

several piles of bones, which appeared to belong to several large animals. 

Thus, the record contains evidence suggesting that Smith killed LP so as to 

avoid undergoing further proceedings pertaining to LP with the Department.

In addition to evidence pertaining directly to the circumstances of LP’s 

death, the record also contains evidence that Smith had not properly cared 

for LP prior to his death. On August 31, 2013, an animal control officer 

observed LP and determined that he was “severely underweight.” An officer 
15

directed Smith to have a veterinarian examine LP. Smith did not have a 

veterinarian examine LP promptly, and on September 15, an officer issued a 

pre-impoundment notice pertaining to LP. Officer Bixby issued a second preimpoundment notice pertaining to LP in June 2014.

The record also contains extensive evidence pertaining to Smith’s 

neglect of other horses that she owned. For example, the People presented 

photographic evidence and testimony pertaining to the physical condition of 

Smith’s horses at the time of the officers’ August 23 seizure of the horses. 

Many of the horses were severely underweight and/or had significant other 

medical conditions that were consistent with lack of proper care. In addition, 

the record contains evidence that Smith did not maintain adequate food 

supplies and water for her horses and that Smith ignored the Department’s 

repeated requests to contact the Department during early 2014.

In sum, apart from Smith’s statements, the People presented 

photographs, text messages, and expert testimony supporting a finding that 

Smith killed LP maliciously by injecting LP with gasoline in a manner that 

caused LP to suffer before dying, testimonial evidence that Smith had been 

neglectful of LP and other horses, and evidence from which the jury could 

conclude that Smith had a motive to kill LP to avoid further Departmental 

proceedings pertaining to the horse. Given this evidence, we conclude that 

the record contains, at a minimum, “ ‘some indication that the charged crime 
16

actually happened.’ ” (Krebs, supra, 8 Cal.5th at p. 317.) Specifically, we 

conclude that the record contains more than “ ‘slight’ ” evidence, independent 

of Smith’s statements, that she maliciously killed LP. (Dalton, supra, 7 

Cal.5th at p. 218.)

Accordingly, we conclude that there is sufficient evidence in the record 

to satisfy the corpus delicti rule.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

IRION, Acting P. J.

GUERRERO, J.