Supreme Court of California Justia
Docket No. S072316
People v. Gonzales

Filed 6/2/11



Plaintiff and Respondent,




San Diego County

Defendant and Appellant.

Super. Ct. No. SCD114421

Defendant Veronica Utilia Gonzales was convicted of murdering Genny Rojas.1

The jury found as special circumstances that the murder was intentional and involved the

infliction of torture,2 and occurred while defendant was engaged in the commission and

attempted commission of mayhem.3 It returned a verdict of death. On this automatic

appeal, we affirm the judgment in its entirety.


A. Guilt Phase

1. Prosecution

Defendant was the aunt of Genny Rojas. Genny and her siblings were removed

from the custody of defendant‘s sister Mary Rojas, after Mary went into a drug

rehabilitation program and her husband was arrested for child molestation. Genny was


Penal Code, section 187, subdivision (a). Further undesignated statutory

references are to the Penal Code.

Section 190.2, subdivision (a)(18).


Section 190.2, subdivision (a)(17)(J).


first placed with defendant‘s mother, but defendant agreed to take Genny in because her

mother had other children to care for. Early in 1995, when she was four years old, Genny

came to live with defendant, her husband Ivan, and their six children in an apartment in

Chula Vista.

On the evening of July 21, 1995, Marisa Lozano, a young neighbor in the

apartment building, was standing outside when she heard a child crying in defendant‘s

apartment. Shortly thereafter, she heard a bang, ―like if something hit a wall.‖ The

crying stopped. Ivan Gonzales looked out a window, then shut it and closed the curtains.

A few minutes later Ivan came out of the apartment, slammed the door, and left, looking

angry. Marisa‘s Aunt Noemi then called for her to come inside, as she was supposed to

each night at 8:00. Ivan appeared at a local liquor store around 8:45 p.m., where he

bought milk, cereal, and candy. No more than an hour later Marisa heard a commotion,

and someone said that a little girl had died. Going outside, Marisa saw Ivan carrying a

child into the apartment where Marisa‘s Aunt Patti lived. Marisa heard defendant say,

―don‘t call the cops.‖

Noemi Espinoza testified that sometime after 9:00 that evening there was some

noise and she heard someone call to her. She came out of her apartment and saw Ivan

carrying a little girl. Noemi asked him what had happened. Ivan told her the child had

burned herself with hot water, and that she did not know how to regulate the water.

Defendant was standing next to Ivan. Noemi asked him to bring the child into her sister

Patti‘s apartment, which was across from the Gonzaleses‘. Ivan did so, followed by

defendant. He placed the child on the floor as Noemi told him to do. She had been

trained as a nurse‘s assistant, and proceeded to check for a pulse and breathing. There

were none, and the body was dry, very cold, and slightly rigid. Nevertheless, Noemi tried

to perform cardiopulmonary resuscitation (CPR), and told her husband to call 911.

Defendant ―said not to call the police because they will get blamed for it.‖ Noemi was

unable to revive the child, and believed she had been dead for a while. Noemi noticed a


bald spot on the child‘s head, marks on her neck and right arm, and a purplish color on

her leg.

While Noemi was attempting CPR, defendant was running in and out of the

apartment, looking very nervous. Ivan sat on the couch but left after a couple of minutes.

Noemi remembered that earlier in the evening, between 6:00 and 7:00, the Gonzaleses‘

son Ivan, Jr. had come to Patti‘s apartment and asked for some rubbing alcohol. Noemi

noticed that ―he had a very weird, blank stare.‖

Around 9:20 p.m., officers William Moe and Barry Bennett of the Chula Vista

police arrived at the scene. Moe met defendant as he approached the apartment.

Defendant told him she had put the baby in the bathtub, and later found her not breathing.

Moe checked the child for a pulse and respiration, but did not attempt CPR because both

he and Bennett concluded she was ―obviously dead.‖ The body was ―very cold to the

touch.‖ Bennett noted that the child was wearing only a shirt, which was dry, as was her

hair. She had bare patches and open wounds on her scalp, signs of trauma on her face,

and a ligature mark under her throat. She was ―a little rigid,‖ leading Bennett to think

that rigor mortis might be setting in. As he knelt next to the body, defendant said she had

run the bath water, put the child in the bath, and then gone to cook dinner. About 20

minutes later, she returned and the child had slipped under the water, so she grabbed her

and went to another apartment to call 911. As defendant spoke, Ivan was sitting there

―like an observer.‖ Moe and Bennett then went to the Gonzales apartment, where they

found the other children. The bathtub was empty and dry.

Ten or fifteen minutes after the police arrived, the fire department came to the

apartment. The fireman who assessed the victim found her cold and without a pulse.

When he tilted her head and grasped her chin to try to open an airway, he found that her

jaw was locked and her teeth tightly clenched, an ―obvious sign‖ of rigor mortis. He did

not try CPR, deciding it was too late.


A medical examiner arrived around 1:00 a.m. He noted a thermal burn from the

waist to the toes and numerous other injuries on the body, especially the face. An

autopsy was performed later that morning. A burn injury extended irregularly from the

top of Genny‘s head down and across the back of her scalp. This burn was in the process

of healing, but was infected. The medical examiner estimated that it was from six days to

several weeks old. There was hair loss in the burn area, and thinning and bald patches

elsewhere on the scalp. These could have been caused by the hair being pulled out or by

nutritional deficiencies. There were scars on Genny‘s shoulders that were consistent with

burn injuries. They matched the burned area on the back of her head, if the neck was

bent back. An area of hair was spared between the burn on the head and the shoulders,

which was also consistent with the head being tilted back at the time of the burn. The

injury could have been caused by a hot liquid being poured over Genny‘s head.

The examiner discovered a subdural hematoma inside the skull. This was a life-

threatening injury for a four-year-old like Genny. It could have been caused by a blow or

by violent shaking, and appeared to be a few hours old. The examiner also noted a

subarachnoid hemorrhage, which is typically the result of a direct impact to the head.

This was not a life-threatening injury, and was weeks or perhaps months old. There was

a pinpoint hemorrhage, or petechiae, in the white of Genny‘s right eye. This injury,

which can be caused by strangulation, normally disappears after a few days if the victim

survives. The area around the right eye was bruised. The examiner estimated that this

injury was a few days old. The left eye was also bruised. There were abrasions above

both eyes in the eyebrow area. Linear abrasions extended across Genny‘s face from her

left ear, and the skin was worn away on the bridge of her nose. The skin on the rim of

both ears was also worn off, exposing the cartilage. These abrasions could have been

caused by a tight band around her head.

There were bruises on Genny‘s right cheek and chin. On both cheeks, there were

recent burns in a grid pattern, which matched the grill of a blow dryer found in the


Gonzales apartment.4 These appeared to have occurred within hours before Genny‘s

death. One of these scars curved in a way that indicated Genny may have pulled away

when it was inflicted. Both cheeks also bore multiple small circular marks, which could

have been caused by the bristles of a brush. Inside Genny‘s lower lip was a laceration,

extending down into the gutter between the gum and lip. This injury was inflamed, and

could have been several days old.

Genny‘s neck was marked with linear scars, ulcerated in places, which were

consistent with a long period of hanging with her weight partially supported by her feet.

They were probably one to three weeks old. There were also linear, ulcerated scars

around Genny‘s upper arms, which could have been caused by handcuffs over an

extended period.5 Scars on her wrists could have been caused by handcuffs or by a cord.

On her right shoulder were burn marks in a grid pattern matching the burns on Genny‘s

cheeks, and the shoulder was scraped as well. The left arm had multiple injuries,

including abrasions and a recent bruise, the handcuff scars, diagonal scars that appeared

to be old injuries, and recent burns in the grid pattern. The top of the left shoulder was

bruised and abraded, with some triangular scars. Genny‘s thighs were bruised in a

pattern indicating that they had been grabbed forcefully, several times. There were

ulcerated areas on the back of her ankles, which were several days to a couple of weeks

old. Genny‘s spleen and thymus glands were atrophied, a sign of chronic stress.

The burn on Genny‘s lower body was a deep, third-degree burn, which removed

the superficial layer of her skin. Areas on the back of her knees were spared, indicating

that she had been kneeling when burned. Similar sparing was evident in the groin area,

where the skin was pressed together and thus protected from the hot water. This burn,


The blow dryer was set on high, and not plugged in when it was collected by an

evidence technician.

A pair of handcuffs were found in the Gonzales apartment, and they matched

Genny‘s scars.


which extended from Genny‘s chest to her feet, was recent, probably hours old. It

appeared to be a forcible immersion burn, in which she was held down with her hands

and arms out of the water, unable to get herself up. There was no evidence of the

splashing that would have occurred if she tried to get out of the water. The burn could

have been inflicted in three to 10 seconds by water between 140 and 148 degrees. This

burn was the cause of death, although it would have been a survivable burn had treatment

been sought. Without treatment, a child Genny‘s size would go into shock and die in as

little as three hours. As the state of shock progressed, the child would slowly lose

consciousness, becoming pale, cold, and clammy. Rigor mortis could set in within two or

three hours of death. The examiner ruled out drowning as a cause of death, because there

was no water in Genny‘s lungs. He deemed the death a homicide, in that the burn did not

appear to be accidental.

The prosecutor also called to the stand a pediatrician with expertise in injuries

caused by child abuse, including burns and head injuries. The doctor‘s testimony was

consistent with that of the medical examiner, whose report he had reviewed. The doctor

further noted, based on his examination of photographs of Genny‘s injuries, that areas on

her buttocks were less burned than surrounding areas, suggesting she had been held down

so that the bottom of the tub kept the buttocks from contacting the hot water. From a

single splash mark burn on her torso, he concluded that the water was between 140 and

150 degrees, and that she had entered the water vigorously. From the overall pattern of

the burn he deduced that she had been immersed for around 10 seconds in a fully filled

tub of hot water, with her knees flexed, leaning forward. Considerable force had to have

been applied to produce the areas of spared skin, and to prevent Genny from escaping.

The burn could not have been caused by adding hot water to a tub half full of

water at a tolerable temperature. The doctor testified that shock was the likely cause of

death. The state of shock could have peaked within a few hours, with death occurring

soon thereafter. With modern burn care, the survival rate for such a burn would be in the


range of 90 percent, although the victim would be permanently scarred and might suffer

long-term problems such as joint deformity.

The doctor found the burn injury on the back of Genny‘s head inconsistent with a

scenario in which she had spilled a pot of hot food from a stove, because the burn was

restricted to the back of the head and the shoulders. It was also unlikely to have been

caused by hot tap water, unless Genny had been lying on her stomach with her head tilted

back under the tap. It could have been caused by pouring a cup of hot water onto the

scalp while tilting the head back. The subdural hematoma Genny suffered was caused by

the application of great force, as was the injury to her lip. The triangular marks on her

shoulder appeared to be burns inflicted with a barrel-shaped object like a curling iron.

An evidence technician came to the Gonzales apartment the night Genny died. A

residue of human skin, including toenails, was found in the bathtub. The water

temperature from the tap reached 156 degrees, then dropped to 148 degrees after five

minutes. After running for 15 minutes, the water in the tub reached the overflow drain

and was 140 degrees.

One of the bedroom doors had a rag tied around both doorknobs, attached to a

piece of twine that was tied to a drawer handle on a nightstand close to the wall and near

the door. In the area between the door, the nightstand, and the wall was a blanket. The

blanket was moist, smelled of urine and feces, and appeared to be bloodstained. In the

wall behind the door was an indentation about 36 inches from the floor, which matched

the size of Genny‘s head and was stained with what appeared to be blood or diluted

blood. There were similar stains elsewhere on this area of the wall, which could have

been produced by the wispy hair on the back of Genny‘s head. A cut-off section of pant

leg was found in this room, tied on one side so as to form a cap or hood. Hair and what

appeared to be bloodstains were found on this material.

In a closet in the same bedroom was a large wooden box. A sliding door had been

removed from its track and leaned into the closet, propped against the box and braced by


a desk outside the closet. The top edge of the box next to the closet wall was about two

inches wide. A reddish-brown material consistent with blood or feces was collected from

this surface. A stain on the edge of the box appeared to be a toe print, and there were

more stains inside the box, as well as feces. Above the box in the center of the closet was

a brace supporting the wooden clothes bar. Attached to this brace was a strong steel

hook. There was a hole in the closet door, positioned so that by looking through the hole

from the outside one would see the hook. Bloodstains were found on the underside of the

clothes bar, the brace, the inside of the closet door, and the back wall of the closet above

the box. Among the stains on the wall was a small footprint, just above the box.

An expert in bloodstain pattern analysis testified that the stains in the closet were

consistent with a 38-inch tall child with a head injury having been fastened to the hook by

the neck while standing on the box, and shaking or rubbing blood onto the various

surfaces where it was found. Because of the patterns, and the fact that some of the stains

appeared to be blood diluted with serous fluid from the wounds, the expert believed there

were a number of such episodes.

The prosecutor presented two videotaped interviews defendant gave to the police

after waiving her right to remain silent. The jurors were given transcripts. The

prosecutor began with the second interview, conducted on July 24, 1995, several days

after Genny‘s death. Defendant said she had begun making dinner around 7:00 on the

night Genny died. She put Genny in a lukewarm bath around 7:30. Ivan was in the

kitchen. Defendant looked in on Genny after seven to 10 minutes. Ivan went to the store

and came back in less than five minutes. About 20 minutes after she first checked on

Genny, defendant took the blow dryer away from her children because they had been

playing with it and it was hot. As she walked past the bathroom, she saw Genny lying in

the tub, face up but turned to the side. The water was now very hot.

Defendant said she pulled Genny from the tub and called Ivan. They took her into

a bedroom and used a fan to try to cool her off. They also used rubbing alcohol in an


effort to cool her and to rouse her with the smell. They blew on her, and attempted CPR.

Water was coming out of her mouth. After five or 10 minutes, Genny was not

responding, so defendant went to Patti‘s apartment for help. Defendant saw that Genny

was red when she took her out of the bath, and her skin was peeling. When asked if she

saw marks on Genny‘s face or neck, defendant said she ―couldn‘t say there were marks

on her face‖ but admitted ―she had that little one on her neck.‖ However, defendant

could not explain the ligature mark, which she said had been there for about a week. Nor

could she account for the marks on Genny‘s arms, which she said were also about a week

old. Defendant had no explanation for why Genny‘s upper body was not burned in the


At this point, the officer questioning defendant told her that Ivan had said he

wouldn‘t take the blame for something defendant had done, and claimed he had spoken to

defendant about how she disciplined Genny. Defendant was surprised and upset, and

expressed disbelief. However, she quickly asserted that she was not going to be blamed

for anything she did not do, and soon began implicating Ivan. She said, ―he would hit her

too‖ and ―he has a heavier arm than me.‖ Defendant insisted she did not hold Genny in

the water, and said, ―I can put that on him maybe.‖ Ivan had been in the bathroom a

couple of times during Genny‘s bath, and had spanked her, but defendant ―didn‘t see him

do it.‖ Regarding the blow dryer, defendant said she had it in the room while they were

trying to revive Genny, and had used it to try to give her some air. She said, ―maybe I

got it a little too close. ‗Cause she was moving. Maybe I did. Maybe I didn‘t. . . .‖

When told, however, that the heating element with the grid pattern was in the back of the

blow dryer, defendant asserted she could only have touched Genny with the front end.

Defendant admitted that both she and Ivan had put the handcuffs on Genny, to

keep her from picking at her wounds. Once, Ivan had put them on her for the entire

night. Defendant tried restraining Genny‘s hands with a cloth tie, but she would free

herself. Defendant also admitted that Genny was made to stay in the closet. Ivan put her


in the box for punishment. Sometimes she would climb in by herself. Once or twice, she

slept halfway in the box, tipped over on its side. Defendant said she and Ivan had tied

Genny to the hook in the closet one time, to keep her from falling off the box. Genny had

been scraping her head against the ledge around the rim of the box, so they put the lid on

the box and made her sit or stand on it. As a form of punishment and to keep her from

falling, they tied her to the hook. Defendant said they did this only for two days, a few

hours at a time. Then, however, she conceded Genny had spent the night once tied to the

hook. When defendant took her down, she saw the mark on her neck.

Defendant maintained that the burn on Genny‘s head happened while Ivan was

away, when Genny climbed up on the stove and reached for a hot pot. When told that the

burn was confined to the back of Genny‘s head, defendant had no explanation. She

denied putting Genny under the tap to try to get the bugs out of her hair. Defendant said

she did not seek treatment for that burn because she did not have Medi-Cal and was

afraid she might be blamed for Genny‘s scars and abrasions.

Defendant then described how Ivan would hit the children, sometimes with a belt.

He hit Genny when she picked at her scabs, or when she yelled. Defendant added,

however, that she had hit Genny as well. When pressed about how the fatal burn

happened, defendant acknowledged that someone must have held Genny down, but

insisted it was not her. She did not see Ivan do it. She also said she had not heard

anything, but then remembered that Genny had told Ivan, ―please don‘t drown me.‖ Ivan

responded, ―you don‘t tell me what to do.‖ He then went to the store, and about fifteen

minutes later defendant found Genny in the tub, burned. Genny was unconscious and

sitting up in the tub, but beginning to slide down. When asked about the abrasions on

Genny‘s ears and on the bridge of her nose, defendant had no explanation. Defendant

said she knew she should be punished for what happened to Genny. When asked if Ivan

should be punished, she said ―damn right.‖ She knew she had been charged with murder,

but swore she ―didn‘t do it.‖


When she was interviewed earlier on July 22, at 6:25 a.m., defendant was less

coherent. At around 10:30 the previous evening, a police officer at the crime scene had

reported his suspicion that she was under the influence of methamphetamine, but one of

the officers conducting the interview testified that she no longer appeared to be under the

influence.6 Defendant cast aspersions on Mary Rojas, who was her sister and Genny‘s

mother, calling her a ―little bitch‖ and saying she had lost her children because of her

drug problems. In a rambling statement, defendant said she had been making dinner, the

children were being noisy, Ivan had just gone to the store, and she found Genny in the

bathtub, ―just laying there.‖ Defendant repeatedly said she did not know what happened.

Defendant told the officers that she had run the bath water for Genny. Genny was

on her back, underwater, when defendant found her. The water was warm. She and Ivan

tried to revive Genny with the fan and alcohol. Water came out of her mouth when Ivan

tried CPR. Genny had burned her head by climbing onto the stove and spilling spaghetti

or beans. Defendant made Genny sleep behind the door in a bedroom apart from the

other children to keep the other children from picking on her. Defendant could not

explain the burn marks on Genny‘s cheeks, but said they had not been there when she put

Genny in the bath. The stains on the wall behind the door were from Genny rubbing her

head. Defendant said she and Ivan both spanked Genny when she would do this.

Defendant said Ivan had a ―heavier hand,‖ but volunteered that she had ―never seen him

torture her or anything like that.‖

Asked if Genny rubbed her head on any other walls, defendant acknowledged that

she would put her in the closet with the box. Genny would come out when ―she started

being good.‖ She was put in the closet ―maybe three or four days you know just to scare

her, you know, just so she could think. . . . But I mean there was no torture there was no I

mean no, no, nothing like that.‖ Defendant could not explain the scars on Genny‘s arms.


Methamphetamine paraphernalia were found in a closet in the apartment.


She admitted using a piece of cloth to tie Genny‘s hands together, and said she also put

on ―her little bonnet.‖ Genny sometimes went to the bathroom in her pants and refused

to take a bath. Defendant made her lie in the bathtub once to scare her, ―just to show her

ugly butt.‖ Defendant had used the cloth tie on Genny‘s hands on that occasion, but

denied that she or Ivan ever put the handcuffs on her. When pressed about how she tried

to correct Genny‘s behavior, defendant said, ―I‘m always holding my brush.‖ She

admitted hitting Genny with the brush but added, ―like actually you know, just torture,

torture you know I‘m not . . . doing nothing to her like that and I know . . . Ivan‘s not

either because . . . I would see [it].‖

Defendant conceded that Genny was badly burned in the bath, and would not have

done that to herself, but denied putting her in hot water and insisted she did not know

how it happened. She maintained that she found Genny lying in the water, even when

told this was inconsistent with the nature of the burn, which could only have occurred if

Genny had been held down in the tub. She adamantly denied doing that, and said she did

not think Ivan would have done it. Defendant had no explanation for the ligature mark

on Genny‘s neck. Defendant was vague and contradictory about when the bloodstains

had appeared on the closet wall, and denied that she or Ivan ever put Genny on the hook.

Asked again about the marks on Genny‘s cheeks, defendant conceded that she had taken

the blow dryer away from the children, but denied burning Genny with it. Defendant

admitted she had failed to get medical care for Genny when she burned her head, even

though she knew it was a serious injury.

2. Defense

The defense called a forensic pathologist who opined that Genny‘s burns could

have occurred in three to five seconds in 140 degree water, and that she could have died

as a result of shock within an hour. He also believed Genny‘s subdural hematoma could

have resulted from a violent shaking in an attempt to revive her.


A forensic psychologist with experience in child abuse cases also testified.

Counsel introduced videotapes and audiotapes of interviews with defendant‘s oldest

child, Ivan Jr., then questioned the psychologist about the interviews. Transcripts were

provided to the jury. The first interview presented at trial was conducted by a detective

on the morning after Genny‘s death. Ivan, Jr., who was eight years old, told the detective

that Genny had drowned, and also that she ―was taking a warm bath, and I think she, uh,

put in hot, . . . and she was laying down in the water and she got burned.‖ He had been in

a bedroom with his brothers and sisters, and saw his mother start the bath for Genny. His

mother made it warm, but Genny made it hot. After Genny was taken to ―the other

house‖ to get help, Ivan, Jr. went into the bathroom, felt the hot water, and drained the

tub. He did not hear Genny make any noises in the bath. His mother told him she found

Genny lying in the water, and she couldn‘t breathe.

Ivan, Jr. said he and his siblings would be spanked when they were ―real bad,‖ but

that Genny was quiet and didn‘t get into trouble. The detective reminded Ivan, Jr. about

the difference between the truth and lies, and encouraged him to be more truthful. Ivan,

Jr. said that defendant had put Genny in a warm bath, and then he and his siblings had

been locked in their room. He now said he had heard Genny make ―a little peeping

sound‖ in the bathroom, like someone saying ―ow,‖ four or five times. When his dad

unlocked the bedroom door, Genny was in the other house and his dad told them Genny

had drowned and was not breathing. Ivan, Jr. admitted he had lied about letting the water

out of the tub. He said he had seen the water going down, though, and that his dad told

him it was hot.

The next interview was conducted the following day, and was audiotaped. Ivan,

Jr. said no one had been playing with the blow dryer the day Genny was hurt, nor did he

know if his parents had used it. He did not see the blood on the wall in his parents‘

closet, and said he never went in their room, except for one time. He did not see a hole in

the closet door. Genny would pick at the wound on her head. Ivan, Jr. did not know how


the injury happened, though he remembered she had all her hair when she first came to

live with them. Genny would be spanked, and sometimes put in the bathtub when she

picked her scabs or got dirty.

Ivan, Jr. said he was with his mother when she started the bath for Genny, and the

water was warm. When told that his father admitted putting the water in the tub, Ivan, Jr.

suggested Genny had taken another bath in the afternoon. He said his father had told him

Genny couldn‘t breathe, and his mother had told him Genny drowned. He didn‘t

remember the scars on Genny‘s cheeks with the grid pattern, but he did see the wound on

her nose. He didn‘t see the line on her neck.

Ivan, Jr. was interviewed again on July 26, 1995, five days after Genny‘s death.

He was in a foster home by this time. This interview took place at a county facility for

children, and was videotaped. The detective began by explaining that he knew Ivan, Jr.

had not been telling the truth, and encouraging him not to be afraid and not to tell any

more lies. Ivan, Jr. said the last time he saw Genny she was in the bathtub, playing. He

could see her through the hole in his bedroom door, which had no doorknob. His mother

had put her in the bath. When he heard Genny say ―ow‖ four or five times, he did not

look through the hole. He tried to get out but the door was locked.7 His father opened

the door and told the children to stay in the room. Later, he let them out and said Genny

couldn‘t breathe. His mother said the water was hot and Genny drowned.

Ivan, Jr. at first denied hearing his mother screaming and yelling, even when told

his brother and sister said she did. When pressed about telling lies, he said he was scared.

He then admitted that his mother had screamed, after Genny said ―ow‖ and before his

father came to tell them to stay in the room. He also said Genny, like all the children,

was spanked and hit with a belt, a broom, or a plastic bat. She slept behind the door in


A sliding lock was installed on the outside of the door. The hole where the

doorknob would have been afforded a view of the entire bathroom if the bathroom door
was open.


the other bedroom, and sometimes in the closet. Ivan, Jr. never saw handcuffs on Genny,

but her hands were tied with rope or cloth to keep her from picking her wounds. He

never saw the hook in the closet, or Genny being hung in the closet. He did not know

how she had burned her head, or how she got marks on her ears. Ivan, Jr. was unable to

explain what he had meant when he said he was scared earlier in the interview. He said

he thought the police would punish him if he did not tell the truth.

Next, the defense played a videotape of an interview conducted by a district

attorney on October 25, 1995. Ivan, Jr. said he was going to be nine in December. On

this occasion, he made some rather dramatic new statements. He volunteered that his

parents had made Genny eat her own excrement. He said Genny would not eat every

day, because his parents wanted to get rid of one of the children, and she was going to be

the first. His parents spent their money on drugs instead of food, and had too many kids.

They were torturing Genny, hitting her and cutting her skin off. Ivan, Jr. said they would

cut her skin with a knife, ―and you could see her meat and her blood.‖ Both parents

would do this, all over Genny‘s body. Genny‘s hair was missing because his parents

pulled it out. Genny would scream, and his parents would hit her, punch her, ―throw her

in the bathtub . . . and get the knife and cut all her skin off.‖

Ivan, Jr. said that on the night Genny died both his parents had put her in the bath.

Genny kicked the water and tried to fight back, but she was weak. Ivan, Jr. said he knew

the water was hot because ―they would always put hot water.‖ When he looked through

the hole in his bedroom door, his parents had closed the door to the bathroom, but he

knew they had put her in the bathtub because ―they would always do that.‖ His dad said

Genny had drowned, but Ivan, Jr. thought they had killed her instead. He had gotten

some alcohol from a neighbor, and his mother poured it over Genny. However, Ivan, Jr.

then said this was before Genny had taken her bath, and Genny had been in the children‘s

bedroom when his mother poured the alcohol on her.


When asked if he had seen anything hanging in the closet, Ivan, Jr. said his parents

had tied Genny to a metal thing and left her hanging, with her hands tied together. This

happened a lot, and Genny would be left in the closet for ―four hours or something.‖ His

parents had made the children throw a hard ball at Genny, but Ivan, Jr. would ―keep

throwing it crooked.‖ His parents would not give Genny food, and when she asked for it

they would put hot sauce on it. The children made Genny a sandwich, and were punished

for doing so. The district attorney explained that he would be asking Ivan, Jr. questions

in court soon, and encouraged him to tell the truth.

Finally, the defense played videotapes of Ivan, Jr.‘s testimony at the preliminary

hearing, which took place on November 8, 1995.8 Ivan, Jr. said that Genny had slept in

his parents‘ bedroom both behind the door and in the closet, and also in the bathtub. His

parents put her in the tub with her hands and feet tied. Her hands were also tied with rope

when she slept in the closet. On the night Genny died, Ivan, Jr. was locked in his room

with his brothers and sisters. He saw Genny in the tub when he looked through the hole

in the door. At a later point, he heard Genny screaming and crying, but he did not look

through the hole then. He also heard his mother scream, after he heard Genny. His father

then unlocked the door, asked the children to stay in their room, and locked the door


Ivan, Jr. said that when Genny first came to live with them, she had no marks on

her face and she had all her hair. She lost her hair when his parents burned her and pulled

it out. They had burned her with hot water in the bathtub, a long time before the night

she died. Ivan, Jr. had seen his parents in the bathroom on that occasion, looking through

the hole in his door. Genny lay down in the tub, and his mother helped his father hold

her down. The hot water came out of the spout and onto her head. She was crying and


Ivan, Jr. did not testify at defendant‘s trial. A single preliminary hearing was held

for defendant and her husband, but their cases were later severed. Ivan was tried first,
convicted, and sentenced to death. The same judge presided over both trials.


screaming. Ivan, Jr. saw this ―a lot of times.‖ When Genny would rub her head against

the wall, his parents would hit her with a belt. Ivan, Jr. said Genny did not have accidents

going to the bathroom, and was potty trained.

Ivan, Jr. testified that he and his brothers and sisters ate in the kitchen, but Genny

ate in his parents‘ room. He said ―she only ate a couple of times.‖ He and his siblings

gave Genny food, but his parents hit them when they found out about it. They also made

the children throw balls at Genny. One of the balls was hard, but it was not heavy. Ivan,

Jr. had once seen Genny hanging in the closet, ―and she was in a basket.‖ Her hands

were tied, and she was hanging without her feet touching the ground.

On cross-examination by defendant‘s counsel, Ivan, Jr. said that both his parents

were ―the boss of the house.‖ If they disagreed, his mother would usually get her way,

―because she‘s the girl and my dad‘s not.‖ He also said he thought his mother was afraid

of his father, because his father was stronger and would hit her when they got into fights.

On cross-examination by his father‘s counsel, Ivan, Jr. again said his mother usually got

her way, and that she often told his father what to do. Sometimes he would do it.

Defendant‘s psychological expert noted the strikingly different statements Ivan, Jr.

had made in his fourth interview, on October 25, 1995. He pointed out that the

interviewers did not challenge the new statements about his parents cutting off Genny‘s

skin, and forcing her to eat feces. It was possible that at first Ivan, Jr. had tried to protect

his parents, but became more comfortable as time passed. He might also have been

influenced to change his story. The psychologist had reviewed the notes and testimony

of Ivan, Jr.‘s therapist and his social worker. He observed that neither had done a

forensic interview, that it was not their role to challenge the boy‘s accounts, and that

neither controlled for contamination of his recollections by outside influences.

Defense counsel called the therapist, Edna Lyons, and the social worker, Karen

Oetken. Their testimony was consistent with the observations of the psychologist.

Lyons, who began seeing Ivan, Jr. in August, 1995, had not reviewed any of the tapes of


the interviews with him. Her notes indicated that Ivan‘s first statement about Genny‘s

treatment in the home was on October 10, 1995. He said his parents had hit Genny, and

when she pooped in the tub, they would put the poop up to her mouth. In advance of his

preliminary hearing testimony, he told Lyons he was worried about seeing his parents,

who hit him, and afraid that when he told the truth they would shout that he was lying.

However, he felt safe because police would be present.

Oetken testified that she had interviewed Ivan, Jr. on July 24, 1995, not long after

Genny‘s death. She asked him what had happened. He said Genny had drowned, and

couldn‘t breathe. He did not hear her cry, but she had said ―ow.‖ The other children

were in the bedroom, and the parents in the living room. His mother checked on Genny

and found her in the water. His parents had told him this. He did not think his parents

had hurt Genny. On August 1, Oetken spoke to Ivan, Jr. in a foster home. He told her

that Genny had rarely come out of his parents‘ bedroom, and he asked if she had died.

He was sad when told that she had. On August 2, Oetken interviewed defendant, who

said that she had been molested by her stepfather as a child, and that her husband was

abusive to her but good to the children. Genny soiled her pants and would not listen.

Defendant said she spanked Genny with her hand and a belt but did not hurt her. The

children also hit Genny. On August 11, Ivan, Jr. denied hitting Genny.

Oetken attended the preliminary hearing, and made a note of Ivan, Jr.‘s courage in

testifying. She also noticed that his testimony differed from the things he had told her

about what happened to Genny. The next time she spoke to Ivan, Jr., she asked him if

anyone had told him what to say at the hearing. He said no.

The defense called Cynthia Bernee, a marriage and family therapist with

experience in cases of domestic violence. She described battered woman syndrome.9


The jury was instructed that the battered woman syndrome evidence was offered

for the limited purpose of providing a potentially innocent explanation for defendant‘s


Defendant then took the witness stand, and denied that she killed, tortured, maimed,

burned, beat, hung, or disfigured Genny. Under counsel‘s questioning, defendant then

provided a lengthy description of her childhood and her marriage. Her stepfather had

sexually molested her when she was a child. When she was 15 years old, she reported

the molestation, and a dependency court proceeding was initiated. She was placed in a

guardianship with her older sister, but her stepfather was never prosecuted. Defendant‘s

mother drank and was verbally and physically abusive. She yelled at defendant, slapped,

hit, and kicked her, pulled her hair, forced her to stand with her sister on newspaper that

she then set on fire, and made her kneel in the backyard in the sun holding bricks.

Defendant met Ivan when she was 15 years old and they married when she was 16. She

soon became pregnant, and he began to be abusive and controlling. She tried to leave

him, but he threatened her and the children and said he would kill himself. He sexually

abused her.

Defendant testified that both she and Ivan used marijuana and crystal

methamphetamine. In 1994 and 1995, the drug use became heavy. Ivan had not worked

for years, and they used their welfare payments to buy drugs. Ivan was abusive to the

children, yelling at and hitting them. Defendant admitted spanking the children with her

hand, a belt, and a brush. She also admitted to an affair with Eugene Luna, Jr., a co-

worker of Ivan‘s. She told Ivan about the affair and briefly separated from him, but he

persuaded her to come back. At the time of Genny‘s death, the family‘s apartment was

dirty and the children had lice. Defendant said these conditions resulted from her drug

use and from being overwhelmed by trying to cope with Ivan and the children.

When her sister Mary‘s children were being considered for placement with

defendant‘s mother, a social worker contacted defendant to ask if the molestation

allegations she had made against her stepfather were true. She said they were not. Her

failure to protect Genny or to provide medical care for her, and to provide a context for
defendant‘s statements after Genny‘s death.


mother had asked her to recant so that her mother could keep the children. Genny came

to live with defendant at the end of January, 1995. Earlier, she had lived with

defendant‘s sister Anita for a while. Defendant took Genny because her mother was

having difficulty with the children. Ivan agreed, after defendant‘s mother promised to

give them a hundred dollars a month. However, her mother did not make those

payments. Defendant‘s family was under financial stress. Their welfare payments were

to end, their rent rose, and sometimes the electricity was cut off. Sometimes they ran out

of food. Still, she and Ivan spent money on drugs.

Defendant testified that Ivan abused Genny the same way he abused his own

children. After Genny burned her head, the abuse got worse. Ivan had taped Genny‘s

hands and burned her head with hot water in the bathtub, in a rage because she had

spilled his marijuana. Defendant wanted to take Genny to the doctor, but Ivan would not

let her. She called a 24-hour nurse and said Genny had been burned with a pot of hot

water, because Ivan told her to say that. She tried to care for the burn as best she could.

Ivan hit and kicked Genny and kept her in the parents‘ bedroom, apart from the other

children. He tied Genny‘s hands with bootlaces, and used handcuffs on her. Defendant

herself used a cloth tie on Genny‘s hands, but it did not keep her from scratching herself.

Genny got less to eat after Ivan started keeping her in the bedroom.

Defendant did not report Ivan‘s abuse of Genny because she was afraid of him.

On one occasion, she found Genny tied up in the closet, standing on the box and tied to

the closet pole by a cloth around her waist. Defendant took Genny down. When she

asked Ivan why he was doing this, he became angry with her. Defendant thought about

returning Genny to her family, but Ivan did not want anyone to find out what he had done

to her, and her mother was not ready to take Genny back. Defendant found Genny

hanging in the closet a second time, after defendant awoke from a drug-induced stupor.

The cloth was around Genny‘s neck, her face was swollen and red, and there was a mark

on her neck when defendant took her down. She and Ivan fought physically on this


occasion. Defendant had tried to protect Genny‘s head by fashioning a bonnet out of a

pant leg and a hairband. She said the bonnet had not caused the abrasion on Genny‘s

nose. She did not know how that injury occurred.

Defendant and Ivan had been up for two or three days, using methamphetamine,

on the day Genny died. That afternoon, a grocery store owner had confronted Ivan at the

apartment about an unpaid bill, which made Ivan angry.10 Defendant began cooking

dinner in the evening. She interrupted the preparations to draw a warm bath for Genny,

and put Genny in the bath. She went back to the kitchen, and on her way saw Ivan lock

the other children in their room. Then she heard Ivan in the bathroom, yelling at Genny

to hurry up. He came out and asked defendant to make some lines of methamphetamine.

Defendant went into a closet to do this. Ivan began yelling at Genny again. From inside

the closet, defendant heard Genny tell Ivan, ―please don‘t drown me.‖ Then, defendant

heard Genny scream. Defendant went to the bathroom, and saw Ivan holding Genny

down by the shoulders, with her arms on the side of the tub. Defendant yelled at Ivan, he

let go of Genny, and defendant picked her up.

Genny seemed to be unconscious. Defendant carried her into the parents‘

bedroom. Defendant was screaming. Ivan told her to shut up, and closed the window.

He told defendant to get a fan, and said he would do CPR. He began blowing in Genny‘s

mouth, but she did not move or make a sound. Defendant believed Genny was dying,

and ―wanted so bad for her to come back.‖ Ivan said he was going to the store, and told

defendant to stay there and not tell anyone, because they would blame her and only he

knew what had happened. He left, and defendant stayed with Genny. She thought he

might be getting help. When Ivan returned with bread, beer, and cigarettes, defendant

was angry and went to Patti‘s apartment to get help.


Juan Banuelos, the store owner, testified and confirmed that he had visited the

apartment that day in an attempt to collect the bill from Ivan.


Defendant claimed she said ―don‘t call the cops‖ at Patti‘s because Ivan had told

her that, and because she wanted to get help for Genny, not contact the police. Ivan also

told her to say that Genny had drowned, and that her head was burned by a hot pot.

Defendant said she had lied during her interviews with the police. She was shocked,

confused, and too afraid of Ivan to tell the truth. During the first interview, she was

under the influence of methamphetamine. During the second interview she was not, but

she was confused, unable to think for herself, and afraid that Ivan would get out and hurt

the kids. She could not account for all the scars on Genny‘s body, because she had not

been there when they were inflicted. Defendant said Genny did not have the blow-dryer

burns before she took her last bath. Defendant had left Genny alone with Ivan, however,

while she paced around the apartment after pulling Genny from the bathtub.

Defendant testified that she had seen Ivan a few times since their arrest when they

were being transported to juvenile court and to the criminal proceedings. He told her that

he loved her, and to stick to the story he had told her. Defense counsel introduced into

evidence 26 pages of correspondence Ivan had sent to defendant while they were in jail.

Ivan had tried to persuade her to fire one of her attorneys. On one letter, he had written

―if it comes right down to it,‖ beneath which he drew a face labeled ―me‖ with a finger

pointing toward it. Defendant said this diagram meant that Ivan was telling her what to

say. She said he used his finger ―as a sexual thing, and it implies that, too.‖ Defendant

believed Ivan was trying to get her to fire her attorney because the attorney wanted her to

blame Ivan. Most of the correspondence, however, was about sex and how much he

loved her. At first it felt good to hear this, but then she realized he was trying to get her

to do what he wanted her to do.

The defense called a series of witnesses who were friends, family members, or

neighbors of defendant‘s. Counsel questioned them about defendant being abused by her

mother and stepfather when she was a child, and by her husband during the marriage.

Victor Negrette, the husband of defendant‘s sister Anita, testified about the months when


he and Anita had custody of Genny before returning her to defendant‘s mother. He said

Genny was undisciplined and would throw tantrums in stores if they did not buy her what

she wanted. He had told Anita that Genny ―needed professional help,‖ and ultimately

decided they were financially incapable of caring for her. They had seen Genny once

after she moved in with defendant‘s family, and she seemed healthy and happy. Anita

also testified. She too mentioned Genny‘s misbehavior in stores, and her good condition

when they visited defendant‘s home.

A doctor specializing in addiction testified about methamphetamine abuse and its

effects. The defense then called Kenneth Ryan, a psychologist with experience

counseling battered women, who testified about battered woman syndrome and his

evaluation of defendant. He had interviewed defendant many times while she was in

custody, and had given her the MMPI (Minnesota Multiphasic Personality Inventory)

twice. He concluded that the first test, administered in September 1995, was invalid

because defendant‘s responses were characteristic of a subject who is lying. The second

test, conducted in February 1997, also reflected a high score for falsity, but not so high as

to automatically invalidate the test results. This test showed that her self-esteem had

been improving. Ryan believed defendant suffered from posttraumatic stress disorder

and battered woman syndrome. He observed that it is characteristic of a battered woman

to fail to protect children in her care. Furthermore, a battered woman will lie to protect

her batterer, and accept responsibility for the actions of the batterer.

Following the psychologist‘s testimony, the defense recalled Cynthia Bernee, the

therapist who had testified generally about battered woman syndrome. Bernee gave her

opinion that defendant was a battered woman. She testified that a battered woman may

accept responsibility for the batterer‘s abuse of a third party, such as a child.

3. Rebuttals

The prosecutor called a number of witnesses on rebuttal. Eugene Luna, Jr., the co-

worker of Ivan‘s who had an affair with defendant, testified that she had initiated the


encounter. He had seen defendant throw a plate at Ivan on one occasion, and from his

observations of their relationship he believed defendant ―had the upper hand.‖ Luna also

related an incident when defendant, intoxicated after a party, threw a temper tantrum in a

parked car with Ivan, Luna, and some of the Gonzales children present. Defendant was

screaming incoherently and kicking the dashboard. Neither Ivan nor Luna could calm her

down, and witnesses called the police, who took defendant into custody.

Luna‘s father testified. He had socialized with defendant and Ivan over a period

of four or five years, and he also deemed defendant the ―boss of the apartment.‖ He had

seen her hit Ivan in the mouth. She would tell Ivan what to do, and he would usually do

it. If he did not, she would curse at him and push him. The wife of the grocery store

owner who visited the apartment on the day of the murder testified that she had seen

defendant and Ivan in the store together about eight times. Defendant seemed to be in

charge of the relationship; she told Ivan what kind of cigarettes he could buy, and he

would stand behind her watching the children.

Rosemarie Price, a childhood friend of defendant‘s who was Ivan‘s cousin,

testified that she had introduced Ivan to defendant. On one occasion, defendant had

shown Price some papers relating to her molestation claim against her stepfather.

Defendant did not seem embarrassed, and snickered when Price asked why she had not

told her about it before. Lorena Peevler was a friend of Ivan‘s, with whom defendant and

Ivan had lived for a period of months in 1990 or 1991. Peevler said the two fought a lot.

Defendant blamed the conflict on Ivan‘s mother. Defendant would push and scratch at

Ivan and threaten to leave; he would not retaliate and pleaded with her to stay. After they

moved, Peevler visited defendant and they talked. She did not complain about abuse by

Ivan. Peevler felt defendant was the boss of the relationship. Ivan‘s sisters, Patricia

Andrade and Guadalupe Baltazar, testified to the same effect. Baltazar had visited the

apartment in early July, and saw the burn on Genny‘s head. Genny had no other scars at

that time.


Mark Mills, a forensic psychiatrist, testified for the prosecution. The court had

ordered defendant to submit to an evaluation by Dr. Mills. She refused on the advice of

counsel, as the jury had learned during her testimony. Dr. Mills had reviewed the

videotaped interviews of defendant, and transcripts of her trial testimony. He offered no

clinical or forensic opinion, but gave his opinion on three issues. First, Mills said the fact

that defendant faced the death penalty provided a motive for malingering, i.e., a

conscious attempt to deceive psychological evaluators about her mental state. Second, he

opined that if defendant had posttraumatic stress disorder, it did not interfere with her

ability to perceive reality or vitiate her free will. Finally, Mills believed the

inconsistencies in defendant‘s various accounts of events in her life made it impossible to

reliably conclude that she had posttraumatic stress disorder.

Defendant did submit to an evaluation by the other mental health expert called by

the prosecution, Nancy Kaser-Boyd. Kaser-Boyd, a psychologist, met with defendant

over the course of two days for around 15 hours, seven of which were spent on testing.

Defendant communicated well and Kaser-Boyd estimated her intelligence as ―certainly

average and probably above average.‖ Defendant‘s test results were inconsistent with

those usually obtained from battered women, and consistent with those of a subject who

is exaggerating her symptoms. Kaser-Boyd reviewed the second MMPI test given by

Ryan, the defense psychologist, going over the answers with defendant and making

corrections. On this test, which showed some exaggerated features but was within the

range of a valid profile, defendant‘s scores were elevated in categories reflecting a

tendency to act out angrily in socially unacceptable and irrational ways. This was not the

typical profile of battered women.

Kaser-Boyd testified that defendant‘s account of Ivan‘s spousal abuse did not

approach the level of violence at which women are immobilized by terror and unable to

come to the aid of an abused child. Kaser-Boyd found it difficult to say whether

defendant did suffer from battered woman syndrome, due to her tendency to exaggerate


and to give inconsistent accounts of the traumatic events in her life. Kaser-Boyd found it

―completely illogical‖ to conclude that defendant had been protecting Ivan in her

statements to the police, when she implicated both him and herself in Genny‘s abuse.

Kaser-Boyd agreed with Ryan that defendant suffered from posttraumatic stress disorder.

She deemed it a complex, chronic form of the disorder that could have resulted from

defendant‘s childhood experiences alone, though being a battered woman might have


On surrebuttal, the defense called another expert psychologist, Thomas Mac

Speiden. He had given defendant an intelligence test and a reading achievement test.

Defendant‘s intelligence was in the low average range, and her reading ability was that of

a beginning eighth grader. The tests given by Ryan and reviewed by Kaser-Boyd

required an eighth grade reading level. Mac Speiden believed the profile derived by

Kaser-Boyd from the second MMPI test was flawed because she had only reviewed

certain answers with defendant. Mac Speiden found the validity of this test highly

questionable. He also believed Hispanics were underrepresented during the test

standardization process, so that the results might reflect a cultural bias.

B. Penalty Phase

The prosecutor presented no additional evidence at the penalty phase. The defense

presented witnesses who related defendant‘s exemplary conduct and religious observance

in jail. Employees of the social services department testified about defendant‘s

supervised visits with her children. Ivan, Jr.‘s therapist said the boy‘s psychological

problems would be exacerbated if his mother were given the death penalty. A therapist

for defendant‘s son Michael gave similar testimony.

Defendant‘s sister Anita testified about the effect a capital sentence would have on

the family, as did Anita‘s husband Victor and their sons Victor, Jr. and Gabriel. Genny‘s

mother, Mary Rojas, described the abusive environment she and defendant grew up in,

and the drug problems that led her to lose custody of her children. Although Genny‘s


death was very difficult, Rojas said her family would be hurt again if defendant were

given the death penalty. Rojas‘s substance abuse counselor testified about the progress

she had made in treatment.


A. Guilt Phase

1. Claims Regarding the Battered Woman Theory

Defendant‘s first argument is convoluted and diffuse. She contends a variety of

improprieties permitted the prosecutor to insinuate that defendant and Ivan had each

agreed to blame the other for Genny‘s death. However, the actual claims she advances

under this heading are more accurately characterized as challenges to various aspects of

the prosecutor‘s rebuttal of defendant‘s claim that she suffered from battered woman

syndrome. We address each claim separately, in the order defendant makes them.

a. Cross-examination on Ivan’s Defense

Defendant asserts the prosecutor committed misconduct when cross-examining her

regarding a letter in which Ivan tried to persuade her to fire her attorney. At the end of

this letter, Ivan had drawn a diagram of a face labeled ―me‖ with a finger pointing to it,

below the statement ―if it comes down to it.‖ Defendant maintained the position she had

taken on direct examination, that the letter reflected Ivan‘s attempt to control her, and the

diagram referred to his practice of using his finger for sexual purposes. The following

exchange occurred:

―Q: Well, you knew that Ivan Gonzales claimed he was a battered man, didn‘t


―A : He never testified to that; no, I didn‘t.

―Q: He didn‘t testify to it, but he claimed that, didn‘t he?‖

Defense counsel objected, on the ground that the question had been asked and

answered. The court sustained the objection ―on the grounds that we shouldn‘t go

through with that line.‖ Nevertheless, the prosecutor proceeded to ask defendant, ―well,


were you aware that that was his defense?‖ Defense counsel objected and asked for a

sidebar conference. The court agreed.

Out of the jury‘s presence, the court noted that ―we‘ve tried to stay away from

what happened at Ivan‘s trial altogether, and this is asking about what happened at Ivan‘s

trial.‖ The court also pointed out that ―Ivan, as far as I know, didn‘t do anything but

enter a plea of not guilty and deny the special circumstances. All the things that she

might answer about are things his attorneys did . . . I‘m not so sure I see how relevant that

is.‖ The prosecutor explained that he was trying to dispute defendant‘s claim that Ivan

was manipulating her. The court noted that defendant‘s attempt to characterize the

drawing as anything other than an invitation to cast blame on Ivan was weak, and did not

justify drawing the jury‘s attention to what Ivan‘s position at his trial had been. It stated:

―I‘m inclined to sustain the objection and to find that we ought to stay away from

anything about what happened at Ivan‘s trial.‖

Defense counsel moved for a mistrial, arguing that the prosecutor had created the

impression that the battered spouse defense was ―bogus‖ because Ivan as well as

defendant had asserted it. Counsel noted that Ivan in fact raised no such defense at his

trial. If a mistrial were denied, counsel asked the court to permit him to introduce

statements Ivan had made in his interviews with the police, admitting that he had put

Genny in the bath. The court denied the motion for a mistrial, and agreed to consider

remedial measures at a later time. It granted defense counsel‘s request for an admonition

telling the jury not to consider counsel‘s questions as evidence, and in particular not to

consider the question when an objection was sustained.

At the next break in the proceedings, the court brought up the question of how the

defense might respond to the prosecutor‘s questions, suggesting that perhaps on redirect

the defendant could testify she was unaware of any attempt by Ivan to blame her for what

happened to Genny. Defense counsel noted that Ivan‘s defense was indeed that

defendant was responsible for what happened, although Ivan himself never directly


blamed her. In any event, counsel declined the court‘s invitation to explore defendant‘s

knowledge on this subject, saying it would open ―more cans of worms.‖11

Defendant argues that the prosecutor committed intentional misconduct by

questioning her about Ivan‘s battered spouse defense. ―The standards governing review

of misconduct claims are settled. ‗A prosecutor who uses deceptive or reprehensible

methods to persuade the jury commits misconduct, and such actions require reversal

under the federal Constitution when they infect the trial with such ― ‗unfairness as to

make the resulting conviction a denial of due process.‘ ‖ [Citations.] Under state law, a

prosecutor who uses such methods commits misconduct even when those actions do not

result in a fundamentally unfair trial.‘ [Citation.] ‗In order to preserve a claim of

misconduct, a defendant must make a timely objection and request an admonition; only if

an admonition would not have cured the harm is the claim of misconduct preserved for

review.‘ [Citation.] When a claim of misconduct is based on the prosecutor‘s comments

before the jury, ‗ ―the question is whether there is a reasonable likelihood that the jury

construed or applied any of the complained-of remarks in an objectionable fashion.‖ ‘

[Citations.]‖ (People v. Friend (2009) 47 Cal.4th 1, 29.)

Here, defendant did not object on grounds of misconduct, and the court did

admonish the jury to disregard the prosecutor‘s questions. In any event, while it was

improper for the prosecutor to persist with his line of questioning after the court sustained

an objection, this conduct did not amount to the kind of ― ‗deceptive or reprehensible‘ ‖

tactic that rises to the level of prosecutorial misconduct. (People v. Friend, supra, 47

Cal.4th at p. 29.) On direct examination, defendant had offered her interpretation of

Ivan‘s letter as an example of his continuing efforts to dominate and control her. A claim


Counsel pressed his argument that he should be allowed to present Ivan‘s

incriminating statements, but the court declined to hear the argument at that time. Later
in the trial, defense counsel reminded the court that it had not ruled on this point. The
court heard from both sides, and decided that no door had been opened to bring in Ivan‘s
statements. We discuss the admissibility of these statements post, in part II.A.1.d.


by Ivan that he was battered by defendant would have tended to rebut that theory. There

was at least some factual basis for the prosecutor‘s suggestion. Defendant had been

present in pretrial proceedings when Ivan‘s attorney announced his intent to employ a

battered spouse defense, though ultimately he decided not to. While the question positing

―that was his defense‖ was misleading, there was no opportunity to clarify the issue

because an objection was sustained. The jury was reminded that statements in the

attorneys‘ questions were not evidence. Defense counsel did not ask the court to inform

the jury that Ivan did not actually claim that he was a battered spouse.

Defendant contends the court erred when it denied her request for a mistrial. We

disagree. ―In reviewing rulings on motions for mistrial, we apply the deferential abuse of

discretion standard. [Citation.] ‗A mistrial should be granted if the court is apprised of

prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a

particular incident is incurably prejudicial is by its nature a speculative matter, and the

trial court is vested with considerable discretion in ruling on mistrial motions.

[Citation.]‘ [Citation.]‖ (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) Here, the

court did not abuse its discretion by concluding that an admonition was sufficient to cure

any prejudice stemming from the prosecutor‘s questions.

b. Cross-examination on Expert Opinion

The matter of conflicting expert opinions on whether Ivan was a battered spouse

first surfaced in a hypothetical question posed by the prosecutor when cross-examining

Cynthia Bernee, defendant‘s expert on battered woman syndrome. During Bernee‘s

initial testimony, before defendant took the stand, the prosecutor asked Bernee to assume

that a husband and wife were both involved in a crime, both claimed to be a battered

spouse, both had expert opinion supporting that claim, and the prosecution had experts

saying that neither spouse suffered from the syndrome. He then asked, ―what‘s a jury

supposed to do?‖ The court sustained a defense objection on the ground that the question

was outside the witness‘s expertise. The prosecutor proceeded to ask, ―how would you


expect a jury to evaluate a situation like that?‖ The court again sustained a defense


The matter was squarely raised later, when the prosecutor sought permission to

cross-examine defense experts about the existence of two reports, one by a Dr. Weinstein

concluding that Ivan was a battered spouse, and one by Dr. Mills, the prosecution expert,

concluding that he was not. The prosecutor proposed using these reports for two

purposes: showing that expert opinion on this subject was unreliable, and showing that

an expert believed Ivan was a battered man, which would rebut the defense position that

any violence by defendant against Ivan was merely counter-violence consistent with her

status as a battered woman.

Defense counsel objected strenuously. Among other claims, counsel argued that

the reports on Ivan were irrelevant, would bring in hearsay, and would prejudice the

defense because it would be unable to meet the evidence by disputing the conclusion that

Ivan was a battered man. Ivan was not available to defense experts for examination. The

court observed that the scope of cross-examination of an expert is broad, and the critical

issue was whether the reports were more prejudicial than probative under Evidence Code

section 352. The court noted that the prosecutor might use the reports to show that

experts reach different conclusions on battered spouse syndrome; to show that the

defense experts ignored the reports on Ivan, if that were the case; and to show that Ivan

was not a batterer. However, the latter point depended on hearsay. On the other hand,

the court reasoned that the reports on Ivan would distract the jurors from their focus on

defendant; confuse them because the prosecutor did not contend that Ivan was a battered

man; consume undue time if the substance of Dr. Weinstein‘s opinion were allowed in;

and prejudice the defense due to its limited opportunity to challenge the conclusion that

Ivan was a battered man. If the prosecutor were to cross-examine the defense experts

with the substance of that conclusion, the court thought it would be hard for the jury to

follow a limiting instruction telling them not to consider it.


The court proposed a middle ground, allowing the prosecutor to simply ask the

defense experts if they were aware of the conflicting reports, one finding that Ivan was a

battered man and the other that he was not, without including any details. The court

would then instruct the jury that the reports could be considered only on the reliability of

expert opinion in this area, not on the factual question of whether Ivan was either a

battered man or a batterer. The prosecutor was amenable. The defense objected, and the

matter was argued at length. Defense counsel agreed with the court that prejudice was

the determinative issue under Evidence Code section 352. As to conflicting expert

opinion, counsel noted there were already conflicting experts in this case, so the

prosecutor did not need the reports on Ivan to make that point. It would be very difficult

for the defense to rebut Dr. Weinstein‘s conclusion that Ivan was a battered man, or for

the jury to put it aside and follow a limiting instruction. Indeed, allowing the prosecutor

to tell the jury that experts reached different conclusions on Ivan‘s status was no middle

ground at all, but exactly what the prosecution wanted, because it would both cast doubt

on the defense experts and present the substance of Weinstein‘s report. Counsel argued

that if Weinstein‘s opinion came before the jury, the defense was entitled to rebut it by

bringing in statements by Ivan that Weinstein had considered.

The court asked whether the prosecutor intended to argue that Ivan was a battered

man. The prosecutor said he did not. His position was that it was simply a case of

mutual violence between the spouses. The court, noting that it had devoted a significant

amount of time to this issue, ruled that the prosecution could use the reports on Ivan for

the limited purpose of showing that they differed on his status as a battered man. The

court saw no prejudice to the defense, because neither party would be arguing that Ivan

was a battered man, and a limiting instruction would tell the jury to consider the reports

only on the question of the reliability of expert opinion on battered spouses, not as to

whether Ivan actually was a battered spouse. Because of that limitation, the court refused

to permit defense counsel to go into the basis for Dr. Weinstein‘s opinion.


During his cross-examination of Ryan, the defense psychologist, the prosecutor

asked if Ryan was aware of conflicting opinions on Ivan, one that he was a battered man

and one that he was not. Ryan said he was aware of them. The court instructed the jury:

―The doctor has testified to other opinions that he is aware of with regard to Ivan

Gonzales. You are allowed to use that and consider that only for a limited purpose. You

are allowed to consider it only for the limited purpose of considering the reliability of

such expert testimony in this area in general. You are not to consider it on the question

of whether Ivan Gonzales is or is not a battered person. I emphasize to you that you are

to decide only Veronica Gonzales‘s issues in this case. It is her status, her case, that is

before you. In this case, both sides will be arguing to you at the end of the case that Ivan

Gonzales is not a battered man. So the reasons for your not considering it on that issue

are obvious and, I think, clear to you.‖

Defendant contends the court abused its discretion in weighing the prejudicial and

probative impacts of the reports, and violated her federal Fifth, Sixth, and Fourteenth

Amendment rights to present a defense by precluding defense counsel from exploring the

bases of Dr. Weinstein‘s opinion that Ivan was a battered spouse.12 The question is a

close one, as the trial court recognized. The scope of cross-examination of an expert

witness is especially broad. (People v. Lancaster (2007) 41 Cal.4th 50, 105.) Evidence

that is inadmissible on direct examination may be used to test an expert‘s credibility,

though the court must exercise its discretion under Evidence Code section 352 to limit the

evidence to its proper uses. (People v. Stanley (1995) 10 Cal.4th 764, 833.) Experts who

testify regarding a mental condition may be questioned regarding their awareness of other


Defendant also contends the hypothetical posed by the prosecutor to Bernee,

regarding conflicting expert opinions, amounted to misconduct. However, defendant did
not preserve this claim below; counsel argued only that the question ―border[ed] on
misconduct.‖ Even if the objection had been made, the prosecutor‘s questions were not a
deceptive tactic that injected incurable unfairness into the trial. (People v. Friend, supra,
47 Cal.4th at p. 29.)


inconsistent opinions by similar experts. (People v. Montiel (1993) 5 Cal.4th 877, 923-


Here, there is some merit in defendant‘s claims. The probative value of the

opinion evidence was minimal. The fact that conflicting opinions had been obtained

specifically on Ivan‘s status as a battered man carried little weight for the very limited

purpose the court allowed, i.e., determining the general reliability of expert opinion on

battered spouse syndrome. There were already conflicting opinions in defendant‘s case.

Ryan readily conceded that experts could differ, even before the prosecutor questioned

him about the opinions on Ivan. Moreover, the court permitted the jury to weigh the fact

that an expert had deemed Ivan a battered spouse, yet barred defendant from exploring

the bases for that opinion.

Nevertheless, any error was plainly harmless. A trial court‘s determinations under

Evidence Code section 352 do not ordinarily implicate the federal Constitution, and are

reviewed under the ―reasonable probability‖ standard of People v. Watson (1956) 46

Cal.2d 818, 836. Assuming defendant has a cognizable federal constitutional claim here,

we would also find the error harmless beyond a reasonable doubt under the standard

prescribed in Chapman v. California (1967) 386 U.S. 18, 24. Our reasons are several.

First, the battered woman theory put forward by the defense was damaged far

more seriously and directly by other evidence than by the conflicting expert opinions on

Ivan‘s status. A number of witnesses, including those who knew the family well, like the

Lunas and Lorena Peevler, testified that defendant was the dominant spouse in the

relationship. The wife of the grocery store owner confirmed that impression with her

testimony regarding the spouses‘ behavior in the store. Ivan, Jr., in testimony presented

by the defense, said his mother was more likely than his father to get her way. Most

tellingly, defendant‘s responses in the July 24 police interview were flatly inconsistent

with the notion that she was intimidated by Ivan. When told that he had blamed her,

defendant displayed anger and surprise, and promptly began implicating him, along with


herself, in the prolonged and varied course of abuse that led to Genny‘s death. She did

not suggest she had been acting under Ivan‘s control, and her statements certainly did not

reflect an effort to protect him. Although she indicated at times that Ivan had hit her, she

more frequently described blows he inflicted on the children. At the end of the interview,

she emphatically agreed that Ivan should be punished for what had happened to Genny.

Defendant‘s statements and demeanor were quite incompatible with the defense theory

that she was the cowed victim of a battering husband. The defense experts‘ attempts to

explain away her performance during this videotaped interview were feeble. Compared

to the powerful videotape evidence of defendant‘s interview, and the testimony of

witnesses who knew the couple well, the impact of conflicting opinion evidence on

whether Ivan was a battered spouse was minimal.

Second, the prosecutor did not dwell on the opinion evidence. Even including his

earlier unsuccessful attempts to bring up the idea that Ivan claimed to be a battered man,

in the hypothetical posed to Bernee and the cross-examination of defendant on the letter

she received from Ivan, no great emphasis was placed on this factor. In closing, the

prosecutor mentioned it only as an example of the unreliability of expert opinion in the

fields of psychology and psychiatry.

Finally, the battered woman theory was not a defense to the crimes charged

against defendant. The jury could have believed she was a battered spouse, yet also

decided that her failure to protect Genny and her participation in severe acts of child

abuse were criminally culpable. Indeed, the abuse of Genny was so horrific, and so much

worse than any of the spousal abuse defendant claimed to have suffered, that the jury was

highly likely to hold her responsible even if it accepted the battered woman theory. For

all the above reasons, we have no doubt that the result of the trial would have been the

same had the court refused to permit the prosecutor to impeach Ryan with the conflicting

expert opinions on Ivan‘s status as a battered man.


c. Requiring Defendant to Submit to Interviews with

Prosecution Experts

Before trial the prosecutor moved for an order directing defendant to submit to a

psychiatric evaluation by a prosecution expert, if she produced expert testimony of her

own about her mental condition. The motion was based on People v. Danis (1973) 31

Cal.App.3d 782 (Danis) and Evidence Code section 730, among other authorities.

Defendant opposed the motion, claiming she was not presenting a defense based on her

mental condition but instead offering battered woman syndrome as an explanation for

certain of her actions, such as failing to protect Genny and lying to the police. The court

issued a tentative ruling that the prosecution‘s request was proper under Danis.

The parties argued the matter on several occasions. The prosecutor noted that the

defense would be calling Bernee, a marriage and family therapist, as well as Ryan, a

psychologist. He asked that two prosecution experts be allowed to examine defendant,

Kaser-Boyd and Dr. Mills. He said Kaser-Boyd would testify on battered woman

syndrome, and Mills on more general psychiatric issues. The prosecutor described Dr.

Mills as a ―debunker.‖ The defense, in addition to maintaining that no examination

should be permitted, objected to the idea of more than one examiner and particularly to

an examination by Dr. Mills. Counsel argued that Dr. Mills had no expertise in battered

woman syndrome, and that his views of defendant would be colored by his examination

of Ivan before Ivan‘s trial. Moreover, the defense would be at a disadvantage because it

had no opportunity for an expert to examine Ivan. The court granted the prosecutor‘s

request. It saw no legal obstacle to examinations by two experts, and found it reasonable

for one to examine defendant with regard to battered woman syndrome and one to

determine more generally whether other mental conditions might explain her behavior.

The court also saw no reason why Dr. Mills should not be one of the examiners, though it

was inclined to exclude any statements Ivan had made to Mills.13


Defendant‘s writ petition challenging the court‘s order was denied.


Defendant was examined by Kaser-Boyd, but refused to submit to examination by

Dr. Mills. The defense was aware that a consequence of that refusal was that the jury

would be told it could consider her decision in its evaluation of the expert testimony. At

the conclusion of the guilt phase, the court advised the jury that it had ordered

examinations by Kaser-Boyd and Mills, that defendant had refused to be examined by Dr.

Mills, and that her refusal ―may be considered by you when weighing the opinions of the

defense experts in this case. The weight to which this factor is entitled is a matter for you

to decide.‖

Defendant raises a number of claims of error regarding the court‘s rulings. She

contends (1) there was no authority for the court to order any examinations by

prosecution experts; (2) in any event, it was improper to order examinations by more than

one such expert; (3) it was improper to permit an examination by Dr. Mills in particular;

and (4) Dr. Mills‘s testimony amounted to improper profile evidence.

Defendant argues that the Danis holding, recognizing the trial courts‘ inherent

power to authorize prosecution experts to examine defendants who place their mental

state at issue, did not survive the enactment of the criminal discovery statutes in 1990.14

(Danis, supra, 31 Cal.App.3d at p. 786; see § 1054, subd. (e) [―no discovery shall occur

in criminal cases except as provided by this chapter, other express statutory provisions, or

as mandated by the Constitution of the United States‖].) After defendant‘s opening brief

was filed, this court vindicated her argument in Verdin v. Superior Court (2008) 43

Cal.4th 1096, 1106 (Verdin). The Attorney General concedes that the trial court‘s order

was based on Danis, and therefore could not stand under Verdin. However, the Attorney


Defendant claims the order for examination by prosecution experts violated her

privilege against self-incrimination under the Fifth and Fourteenth Amendments, as well
as her Sixth and Fourteenth Amendment rights to due process and the effective assistance
of counsel in that counsel was not allowed to be present during the examinations.


General contends we should not apply Verdin retroactively, and alternatively claims the

error did not prejudice defendant.

The Attorney General‘s retroactivity argument is without merit. Our opinion in

Verdin did not declare a new rule, but simply established the meaning of the discovery

statutes as they then stood.15 Because Verdin ―only elucidate[d] and enforce[d] prior law,

no question of retroactivity arises.‖ (Donaldson v. Superior Court (1983) 35 Cal.3d 24,

36; see Burris v. Superior Court (2005) 34 Cal.4th 1012, 1023; People v. Mutch (1971) 4

Cal.3d 389, 394-395. See also People v. Wallace, supra, 44 Cal.4th at p. 1087 [applying


Although we held in Verdin that the criminal discovery statutes had deprived trial

courts of their inherent authority to require a criminal defendant to submit to a mental

examination, we also made it clear that there was a separate statutory basis for appointing

mental health experts. (Verdin, supra, 43 Cal.4th at p. 1109.) Under Evidence Code

section 730, ―[w]hen it appears to the court, at any time before or during the trial of an

action, that expert evidence is or may be required by the court or by any party to the

action, the court on its own motion or on motion of any party may appoint one or more

experts to investigate, to render a report as may be ordered by the court, and to testify as

an expert at the trial of the action relative to the fact or matter as to which the expert

evidence is or may be required.‖ In Verdin, the Court of Appeal had denied the

defendant‘s pretrial petition for writ relief. We reversed, noting that the People had not

requested the appointment of an expert under Evidence Code section 730, nor had the

trial court made such an appointment. Thus, the People had forfeited reliance on that


The Legislature promptly responded to Verdin by enacting section 1054.3,

subdivision (b), which authorizes courts to order examination by a mental health expert
retained by the prosecution whenever a defendant places his or her mental state at issue
through expert testimony. (Stats. 2009, ch. 297, § 1.) Whether the new statute would be
applicable on a retrial is a question we need not consider. (See Tapia v. Superior Court
(1991) 53 Cal.3d 282, 288, 299-300; People v. Ledesma (2006) 39 Cal.4th 641, 663-664;
People v. Mattson (1990) 50 Cal.3d 826, 849.)


source of authority. (Verdin, at pp. 1109-1110.) Nevertheless, we noted that the People

were free to seek an appointment under Evidence Code section 730 upon remand.

(Verdin, at p. 1117.)

Here, defendant did not argue in the trial court that the prosecutor‘s request was

precluded by the discovery statutes.16 Had she done so, the court could and likely would

have resorted to its power to appoint experts under Evidence Code section 730, which

was invoked in the prosecutor‘s motion. 17 During arguments on the motion, the court

twice mentioned its authority under Evidence Code section 730, although the Attorney

General properly concedes that the court ultimately relied on its inherent authority under

Danis. However, defendant‘s failure to object on the statutory grounds discussed in

Verdin bars her from raising the error on appeal. A different rule would be unfair to the

prosecution and the trial court, which could have avoided the error had it been brought to

their attention. (People v. Saunders (1993) 5 Cal.4th 580, 590; see also, e.g., In re Seaton

(2004) 34 Cal.4th 193, 198.) In any event, even if defendant had not forfeited the claim,

the Verdin error would be harmless. The court expressly recognized that the interests of

―fairness‖ and ―the ascertainment of truth‖ required the prosecutor to be able to meet the

evidence of the defense experts. Its mistaken reliance on Danis was not prejudicial,

given the alternate source of authority provided by Evidence Code section 730.


Defendant asserts she made such a claim, but the record shows otherwise.

Defendant refers to a page of her opposition where she relied on her Fifth Amendment
privilege and claimed that ―statements by a defendant are specifically omitted from the
discovery provisions of the Penal Code (section 1054.3).‖ This claim did not alert the
court to the idea that the prosecutor‘s request for examination was barred by the
discovery statutes; rather, it argued that defendant‘s statements were exempt from
discovery. That argument was incorrect, of course; statements made by defendant to her
own experts and reflected in their reports were discoverable and were provided to the
prosecution without objection below.

Defendant suggests the court was unlikely to appoint experts, because their fees

would have been payable from the court‘s own budget. However, Evidence Code section
731, subdivision (a) specifies that fees fixed under Evidence Code section 730 are
payable from the county treasury.


Defendant also argues, as she did below, that she did not raise her mental

condition as a defense, and therefore did not waive her constitutional rights against self-

incrimination and due process. This position is untenable. The centerpiece of the

defense was defendant‘s assertion that her actions were explained by battered woman

syndrome. Defendant squarely placed her mental state at issue, claiming she was a

victim unable to overcome her fear of Ivan and protect the child she had taken into her

care. The evidence she presented in support of that claim was subject to rebuttal. As the

Attorney General points out, had the defense been content with evidence of battered

woman syndrome in general, without presenting experts who had examined defendant,

the prosecution would have had no ground for requesting an examination by its experts.

But since the defense did present expert testimony based on interviews with defendant,

the court properly found that fairness required giving the prosecution the opportunity to

counter that testimony. It is settled that a defendant who makes an affirmative showing

of his or her mental condition by way of expert testimony waives his or her Fifth and

Sixth Amendment rights to object to examination by a prosecution expert. (People v.

Carpenter (1997) 15 Cal.4th 312, 412-413; People v. McPeters (1992) 2 Cal.4th 1148,

1190; Danis, supra, 31 Cal.App.3d at p. 786.) 18

Defendant further claims that a rule exposing her to examination by prosecution

experts on battered woman syndrome would open the door to compulsory examination of

witnesses who are claimed to suffer from this syndrome, or from rape trauma syndrome.

However, nothing in the Danis rule, now codified in section 1054.3, subdivision (b),

implicates the situation of witnesses, who are not parties and do not choose to place their

mental condition at issue as defendants may.

Defendant contends the court erred by ordering her to submit to more than one

interview, by instructing the jury that it could consider her refusal to be interviewed by


The same reasoning applies to defendant‘s claim that her Fourteenth Amendment

right to due process was violated.


Dr. Mills, and by preventing her from explaining the reasons for her refusal when she

was on the witness stand.19 Defendant‘s briefs are devoid of legal authority in support of

these arguments. We cannot say the court abused its discretion by deciding that two

prosecution experts would be permitted to rebut the testimony of two defense experts.

The jury instruction on defendant‘s refusal to be examined was similar to the instruction

approved in People v. Carpenter, supra, 15 Cal.4th at pp. 412-413. While the instruction

was infected by the Verdin error in ordering the examinations (People v. Wallace, supra,

44 Cal.4th at p. 1087), defendant forfeited that claim and was not prejudiced in any event,

as discussed above. Moreover, the court permitted her to explain that her refusal to be

examined by Dr. Mills was based on the advice of counsel. Defendant claims she should

have been able to tell the jury that her counsel believed Dr. Mills was not an expert in

battered woman syndrome, and that Dr. Mills had an unfair advantage because he, unlike

the defense experts, had interviewed Ivan. However, Dr. Mills did not testify about

battered woman syndrome, and defense counsel established his lack of expertise in that

area on cross-examination. It is unclear how defendant would have benefited had the

jury learned of Dr. Mills‘s access to Ivan. In any event, hearsay conversations between

defendant and her counsel regarding their legal strategy were clearly inadmissible.

Defendant argues that it was an abuse of discretion to permit Dr. Mills to evaluate

defendant over the defense‘s objections that he was biased by his prior evaluation of Ivan

and lacked expertise in battered woman syndrome.20 Again, defendant provides no legal

authority for her claim, and we find no merit in it. It is a matter of speculation what

effect the doctor‘s interview with Ivan may have had, and the jury did not learn that he

had evaluated Ivan. Nor did the prosecutor seek to use Dr. Mills as an expert on battered


Defendant asserts violation of her federal Fifth, Sixth, and Fourteenth Amendment

rights to a fundamentally fair trial, and her Fifth Amendment privilege against self-

She claims violation of her federal Fifth, Sixth, and Fourteenth Amendment due

process rights, and her Eighth Amendment right to a reliable verdict.


woman syndrome. Instead, he offered the doctor‘s testimony for purposes of general

psychiatric evaluation and the exploration of alternate explanations for defendant‘s

mental state. Defendant fails to establish an abuse of discretion in the order allowing Dr.

Mills to serve as one of the prosecution experts.

Finally, defendant claims the court erred by allowing Dr. Mills to testify that

defendant had an incentive to malinger because she faced the death penalty, and that her

inconsistent statements on various subjects reflected malingering. She analogizes the

doctor‘s testimony to improper profile evidence.21

Before Dr. Mills took the stand, defense counsel objected to any testimony that

would invade the province of the jury by opining on defendant‘s credibility. The court

agreed that it would be improper for the doctor to tell the jury what to think about

defendant‘s credibility, but ruled that it would be proper for him to express a view on

whether it was reasonable for another expert to form a professional opinion based on

defendant‘s statements. The court noted that the issue ―somewhat straddl[es] the line

between what a jury should believe and what a mental health expert should believe in

forming an opinion.‖ It advised the prosecutor to ―draw your questions carefully and talk

to the doctor carefully about not telling the jury what they should believe.‖ Regarding

the significance of the fact that defendant was facing the death penalty, the court stated,

―we don‘t need an expert to opine that somebody facing the death penalty has a motive to

generally lie.‖ The prosecutor said he had no intention of asking Dr. Mills about that,

because he did not want to bring the subject of penalty into the guilt phase.

However, when Dr. Mills took the stand the prosecutor made it clear that he

intended to elicit an opinion that ―the incentive for malingering in a case like this is

high.‖ Defense counsel‘s objection was overruled. Dr. Mills testified that the death

penalty created a ―very high‖ incentive for ―embellishing or distorting.‖ In the remainder


Again, defendant refers to her federal Fifth, Sixth, and Fourteenth Amendment due

process rights, and her Eighth Amendment right to a reliable verdict.


of his direct testimony, which was not prolonged, Dr. Mills described the nature of

posttraumatic stress disorder, the problems experts have with unreliable data from those

whose stakes in litigation give them reason to lie, and some of the inconsistencies in

defendant‘s statements that led him to believe a reliable diagnosis of posttraumatic stress

disorder was impossible.

During a break, defense counsel expressed concern over the doctor‘s views on the

death penalty as a motive for lying, given the court‘s earlier ruling. Counsel did not,

however, ask for an admonition to the jury. The court did not share counsel‘s concern,

noting that the jury was well aware of the stakes in the case and taking the view that the

prosecutor‘s questions properly had to do with ―evaluating credibility and taking a

history.‖ Counsel responded that if Dr. Mills‘s view on this point was not adding

anything to what the jury already knew, it was more prejudicial than probative for the

expert to ―keep highlighting it.‖ The court overruled the objection.

The proper scope of expert testimony is limited to subjects ―sufficiently beyond

common experience that the opinion of an expert would assist the trier of fact.‖ (Evid.

Code, § 801, subd. (a); see People v. Lindberg (2008) 45 Cal.4th 1, 45.) Here, the court

properly determined in advance of Dr. Mills‘s testimony that the doctor‘s view on the

death penalty as an incentive to malinger was not necessary to assist the jury, and the

prosecutor agreed not to explore the subject. However, the prosecutor proceeded to ask

the doctor generally about defendant‘s incentive for malingering, and Dr. Mills

immediately brought up the death penalty in his response. The court should have

sustained defense counsel‘s objections, and an admonishment would have been proper.

The possibility of prejudice, however, was minimal. As the court observed, it was

―not news to the jury‖ that it was a capital case, and the incentive described by Dr. Mills

was an obvious one. Defense counsel effectively cross-examined Dr. Mills on this point,

getting him to concede that the stakes were high for all concerned in the case, and that a

defendant is not to be disbelieved simply because he or she is facing the death penalty.


Moreover, far more direct and damaging evidence of defendant‘s malingering was

supplied by her own expert, Ryan, who told the jury that defendant‘s responses to the

personality tests he gave her reflected a high degree of falsity, to such an extent that the

results of one test were invalid.

Defendant contends the court also erred by permitting the doctor to give his view

on whether defendant‘s malingering, as reflected in the conflicts in her statements about

various events, undermined the opinions given by her expert witnesses. We disagree.

The defense relied heavily on expert testimony to explain the inconsistencies in

defendant‘s statements. It was proper to allow the prosecution to rebut that testimony

with Dr. Mills‘s opinion that the foundation for the defense experts‘ conclusions was


d. Exclusion of Statements by Ivan

Defendant filed a pretrial motion seeking the admission of certain statements made

by Ivan when he was questioned by detectives after Genny‘s death. Defendant

summarized the statements as follows: ―[T]he defendant and the codefendant left the

bathroom together after placing the decedent in the tub. The codefendant admits that

only he came back into the bathroom after both had previously left. He admits that the

decedent was still alive when he went back to the bathroom. The codefendant indicated

that he did not think the water was hot. He said the decedent was making a noise but he

thought it was because she didn‘t want to take a bath. He admits he set the water and if

she had told him it was hot he would have taken her out and put cool water in. The

codefendant admits that the child may have been too scared of him to say anything. He

admits yelling at her to take a bath and not to come out.‖

Defendant contended these statements amounted to declarations against interest

under the hearsay exception codified in Evidence Code section 1230. When the motion

was heard, counsel argued that because Ivan knew he was under suspicion when he was

interrogated, his statements tended to incriminate him and therefore were reliable enough


to be admitted. Counsel was unwilling, however, to concede that exculpatory statements

by Ivan should be admitted, characterizing them as ―self-serving.‖ The court denied the

motion, ruling that all of Ivan‘s statements were essentially exculpatory, not self-

incriminating. The court reasoned that while certain statements taken out of context

might be useful to defendant for casting blame on Ivan, those statements could not be

characterized as admissions that no reasonable person would make unless they were true.

After Ivan‘s trial concluded, defendant sought reconsideration. In this motion, she

argued that the prosecutor had used Ivan‘s statements to prove his guilt, telling Ivan‘s

jury that the statements contained ―kernels of truth.‖ If the statements were reliable

enough to be used against Ivan, defendant asserted they should also be admitted at her

trial. In arguing this motion, counsel told the court he now recognized that if defendant

were allowed to introduce certain of Ivan‘s statements, the prosecutor could ―put on the

whole tape if he wants to.‖ The court adhered to its previous ruling, finding that Ivan‘s

statements were not declarations against interest but instead efforts to deny responsibility

for Genny‘s death.

Defendant again pressed the court to allow Ivan‘s statements into evidence after

the prosecutor raised the issue of Ivan‘s attempt to use a battered spouse defense. (See pt.

II.A.1.a., ante.) Counsel argued that Ivan‘s statements would ―set the record straight as

to what Ivan actually did say as far as his involvement is concerned.‖ Counsel renewed

this claim after the court permitted the prosecutor to inform the jury that an expert had

deemed Ivan a battered spouse. The court ruled that the prosecutor‘s comments did not

open the door to the admission of Ivan‘s statements to the police.

In this court, defendant claims the court erred by ruling that Ivan‘s statements

placing him in the bathroom with Genny at crucial times were inadmissible under the

hearsay exception for declarations against interest. We disagree. Evidence Code section

1230 permits a hearsay statement to be admitted if it ―so far subjected [the declarant] to

the risk of civil or criminal liability . . . that a reasonable man in his position would not


have made the statement unless he believed it to be true.‖ ― ‗The focus of the declaration

against interest exception to the hearsay rule is the basic trustworthiness of the

declaration. [Citations.] In determining whether a statement is truly against interest

within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy

to be admissible, the court may take into account not just the words but the circumstances

under which they were uttered, the possible motivation of the declarant, and the

declarant‘s relationship to the defendant.‘ [Citation.]‖ (People v. Geier (2007) 41

Cal.4th 555, 584 (Geier).)22

Here, the court accurately noted that Ivan‘s statements were attempts to excuse

himself from liability. Some were plainly unbelievable, such as his claim that he would

have done something if Genny had told him the water was hot. The court observed that a

child being severely scalded would make it obvious to anyone that ―she was in mortal

danger.‖ Defendant claims that Ivan incriminated himself merely by admitting he was in

the bathroom around the time Genny was burned. However, ― ‗[e]ven when a hearsay

statement runs generally against the declarant‘s penal interest and redaction has excised

exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia

of trustworthiness to qualify for admission. . . .‘ [Citation.]‖ (Geier, supra, 41 Cal.4th at

p. 584.) This is such a case.

Defendant argues that even if Ivan‘s statements were false, they reflected

consciousness of guilt. However, basic trustworthiness and factual truthfulness are

required for a statement to qualify for admission under Evidence Code section 1230.

(Geier, supra, at p. 584.) Defendant essentially concedes that Ivan‘s statements did not

disclose the true circumstances of Genny‘s death. She goes so far as to contend that

Ivan‘s statements were lies comparable to her own lies to the police, and thus were


We note that Ivan‘s statements were admissible at his trial as statements of a party

under Evidence Code section 1220. A different analysis is required when a nonparty‘s
statements are offered as declarations against interest under Evidence Code section 1230.


admissible for the nonhearsay purpose of showing that ―dependent spouses would lie to

protect the other.‖ This unusual theory was not raised below. We do not address it here,

except to note that it does not tend to support the conclusion that defendant was innocent.

In any event, Ivan‘s consciousness of guilt was not at issue; both sides at

defendant‘s trial took the position that he was knowingly guilty of Genny‘s murder. The

court, with the agreement of counsel, informed the jury that Ivan had been convicted and

sentenced to death. It advised the jury that this information was only relevant to its

evaluation of the testimony of witnesses who were friends or family members of both

defendant and Ivan, and reminded the jury that only defendant‘s guilt was at issue in the

present trial. Thus, statements by Ivan reflecting his guilt were not relevant on any

contested issue.

Defendant also claims the trial court should have allowed her to bring in Ivan‘s

statements to rebut the prosecutor‘s insinuations that Ivan had employed a battered

spouse defense. The argument lacks logic. Ivan‘s statements to the police were not

inconsistent with a battered spouse claim, nor did they tend to reflect the nature of the

defense his attorneys presented.

2. The Evidence of Defendant’s History of Abuse as a Child

Before trial, the prosecutor objected to the admission of evidence of the abuse

defendant suffered as a child, noting that he would have to respond to it and time would

be spent on collateral issues. The defense insisted the evidence was relevant because its

expert psychologist, Ryan, believed defendant‘s experiences as a child had contributed to

her battered woman syndrome, and were mirrored in the dynamics of her marriage. The

court agreed that the defense was entitled to bring in this evidence.

Defendant testified at length about her childhood abuse at the hands of her mother

and stepfather. Ryan testified that the emotional and physical abuse defendant‘s mother

inflicted on her, and the sexual abuse by her stepfather, which her mother refused to

believe, contributed to her low self-esteem and to the development of a marital


relationship in which she became a battered woman. On cross-examination, Ryan agreed

that batterers tend to come from violent homes, and that children tend to identify with and

model their behavior after the parent of the same gender as the child. A girl, for instance,

might ―learn domestic violence from her mother.‖ On redirect, Ryan said that about 75

percent of battered women come from a home where they observed domestic violence,

and that defendant‘s experience of abuse as a child made it more likely that she would

become a battered woman. She would submit to a battering relationship more readily

than someone who had not had such experiences.

Cynthia Bernee, the other defense expert on battered woman syndrome, also

testified that childhood abuse is a significant factor in the syndrome. In defendant‘s case,

her experiences had taught her that she lacked control over her environment and

predisposed her to become a victim of domestic violence by Ivan.

After the defense rested, the court and counsel engaged in an extended discussion

on the scope of the prosecutor‘s rebuttal regarding the child abuse evidence. The

prosecutor said his expert psychologist, Kaser-Boyd, would testify that victims of

childhood abuse develop poor rage control mechanisms and tend to model the abusive

behavior of their parents. He conceded that the evidence was similar to profile evidence,

and could not have been presented as part of his case-in-chief, but claimed the defense

had opened the subject by presenting evidence that defendant‘s childhood abuse set her

up to become a victim of domestic abuse as an adult. The court expressed concern about

testimony directly tying defendant‘s experiences as a child to her propensity for

committing child abuse herself. It noted that the defense evidence of abuse and battered

woman syndrome was limited to explaining defendant‘s failure to protect Genny.

The defense responded that while it would not object to a prosecution expert

testifying that defendant‘s experiences made her more likely to be a battering spouse, it

did oppose testimony that she was more likely to be a child abuser. There was a good

deal of discussion about whether, if the prosecutor introduced evidence that Ivan‘s


childhood home was not a violent one, the defense would be able to introduce Ivan‘s

report to Dr. Weinstein that his brother and an uncle had molested him. The prosecutor

ultimately decided that his rebuttal as to defendant‘s child abuse would be limited to two

points: (1) that children model their parents‘ behavior and may learn from abuse to react

with rage as adults; and (2) that child abuse can set a person up to be an abuser as easily

as a victim.

The court suggested that, as so limited, the proffered testimony was proper

rebuttal. The defense objected that it had not tried to show that defendant‘s experience

made her less likely to be a child abuser, and that the inference the prosecutor sought to

draw went directly to an ultimate issue in the trial, unlike the defense‘s battered woman

syndrome evidence. The court was not persuaded.

The prosecutor questioned Kaser-Boyd about the concept of role modeling. She

responded that children learn by imitation and parents are strong role models, so that

children may imitate the behavior they see at home and subsequently reenact it. The

prosecutor asked if poor emotional control was related to role modeling. Kaser-Boyd

said: ―If one has had a role model with poor emotional control who acted out frustration

in emotionally uncontrolled ways, let‘s say a parent who goes into a rage or a parent who

is abusive in their actions, hits too hard, does things that make a child suffer, the child

goes through terror, really, when they experience that. And the act of, or the experience

of terror, we believe, causes changes in personality, and it also causes changes in the

developing brain. [¶] Little people who feel terrified have more cortisol in their brains.

They have often the frequent tapping of adrenalin and, over the long term, that damages

parts of the brain that are required for good emotional control.‖

Kaser-Boyd explained that children do not necessarily reenact exactly the abuse

they suffered. Asked whether the research showed that battered women could abuse

children themselves, she responded that a leading study showed 28 percent of battered

women admitted being abusive to their children. In her own practice, she did not have a


statistic but had found that ―it‘s definitely the case that some battered women are also

physically abusive to their children.‖ The prosecutor proceeded to question Kaser-Boyd

about her examination of defendant, but elicited no opinion as to whether defendant‘s

experience of child abuse predisposed her to be a child abuser herself.

Kaser-Boyd‘s testimony lasted for an entire day. The following day, the jury was

excused and the court and counsel discussed instructions. On the next court day, before

proceeding with the defendant‘s surrebuttal witnesses, the court gave the following

instruction to the jury, which was repeated at the end of the guilt phase:

―It‘s important for you to understand the purpose for which certain evidence has

been offered. The defense has offered defendant‘s testimony that she did not commit the

crimes for which she‘s charged. They‘ve also offered extensive evidence regarding the

battered woman‘s syndrome. The battered woman‘s syndrome evidence is not offered to

show that someone suffering from the battered woman‘s syndrome could not or would

not commit the crimes charged; rather, it is offered to prove a potentially innocent

explanation for defendant‘s failure to protect Genny and failure to provide medical care

for her as well as to provide a context for defendant‘s statements following Genny‘s


―Likewise, the people have offered evidence that a person‘s childhood physical

abuse could result in that person growing up to be either a victim or an abuser. This is

not offered to show that someone abused as a child is more likely to be an abuser as an

adult; rather, it is offered to show that being a victim of physical abuse as a child is not

inconsistent with commission of violent crimes as an adult.

―You must not consider this evidence for any purpose other than the purposes for

which it was offered.‖

Defendant argues that Kaser-Boyd‘s testimony amounted to improper ―battering

parent syndrome‖ evidence, of the kind disapproved in People v. Walkey (1986) 177


Cal.App.3d 268 (Walkey).23 In Walkey, a physician testified that the murder victim, a

child, had been abused. The doctor described the profile of a child abuser, telling the jury

that the most important single factor was being abused oneself as a child. After the

defendant testified in his own behalf, the trial court allowed the prosecutor to cross-

examine him about abuse he had suffered as a child. In closing, the prosecutor argued

that the defendant fit the profile of a battering parent. (Id. at p. 277.) The Court of

Appeal held it was error to permit what amounted to character evidence showing that the

defendant was a typical battering parent. It noted, however, that if a defendant introduces

evidence of his good character, cross-examination to counter that evidence would be

proper. (Id. at pp. 278-279.)

Here it was defendant who, over the prosecutor‘s objection, introduced the subject

of her abuse as a child and the effect it had on her as an adult. The trial court properly

allowed the prosecutor to respond to that evidence. This is not a case like Walkey, where

the prosecution improperly sought to prove guilt on the basis of general characteristics.

(See also People v. Robbie (2001) 92 Cal.App.4th 1075, 1086 [―Profile evidence is

unfairly relied upon to affirmatively prove a defendant‘s guilt based on his match with

the profile‖].)

Defendant argues, as she did below, that her evidence was strictly limited to the

impact of child abuse on the likelihood of becoming an abused spouse, so that proper

rebuttal should have also been so limited. We disagree. ―The scope of rebuttal evidence

is within the trial court‘s discretion, and on appeal its ruling will not be disturbed absent

‗ ― palpable abuse.‖ ‘ [Citation.]‖ (People v. Wallace, supra, 44 Cal.4th at p. 1088.)

Defendant introduced evidence of her childhood abuse in an attempt to bolster her claim

that she was an abused spouse. The purpose of this evidence was to explain her failure to

protect Genny and her contradictory statements to the police, including admissions that


Defendant claims her rights under the Fifth, Sixth, Eighth, and Fourteenth

Amendments to a fair trial and a reliable verdict were violated.


she participated in some of the abuse Genny suffered. The defense experts testified that a

battered woman may take responsibility for acts of abuse perpetrated by the battering

spouse. Certainly it was proper for the prosecutor to counter this testimony with expert

opinion that an abused child may also grow up to be an abuser. The trial court instructed

the jury on the limited purpose for which this testimony could be considered. No error


Defendant argues that the court should have permitted her to respond to the

prosecutor‘s rebuttal by questioning Ivan‘s brother about his sodomization of Ivan as a

child. However, not only did the brother not testify, but also the prosecutor made no

attempt to show that Ivan had a good childhood. Defendant further claims she should

have been able to call Dr. Weinstein and question him about Ivan‘s report that he had

been sodomized. Defendant did not seek that opportunity below; the defense had rested

by the time this point was discussed, and defense counsel never asked to call Dr.

Weinstein for any purpose other than rebutting the notion that Ivan was not abused as a

child. Defendant‘s argument on this point lacks any merit. It was her choice to bring her

own childhood abuse before the jury. The court properly allowed the prosecutor to

respond to defendant‘s evidence, but nothing in that response justified allowing defendant

to explore Ivan‘s childhood experiences as well.

3. Instructional Issues

Defendant complains that the jury instructions on the mental states required for

murder and the special circumstances were incomprehensible.24 However, she fails to

develop a legally coherent argument. She merely recites instructions, parses certain


The prosecutor advanced two theories of first degree murder: murder perpetrated

by torture, and felony murder committed in the course of mayhem. (§ 189.) Two special
circumstances were alleged: torture felony murder (§ 190.2, subd. (a)(18)) and mayhem
felony murder (§ 190.2, subd. (a)(17)(J)).


terms, and questions whether the jury could have understood them. 25 The Attorney

General correctly notes that many of the instructions with which defendant now quibbles

were not objected to below, or were requested by defense counsel. The doctrine of

invited error bars defendant from challenging instructions she requested as a tactical

choice. (People v. Harris (2008) 43 Cal.4th 1269, 1293.) While defendant may raise a

claim that her substantial rights were affected by instructions to which she did not object

(§ 1229; People v. Benavides (2005) 35 Cal.4th 69, 111), she falls well short of making

such a showing.

Defendant claims the instructions left the jury with the impression that mayhem

felony murder must be first degree murder. That impression was accurate; mayhem

felony murder is by statute murder in the first degree. (§ 189.) Defendant objects that

the instructions on the elements of mayhem and the mayhem-murder special

circumstance required no more than the intent to vex, annoy, or injure. That is incorrect;

the instructions properly informed the jury that mayhem felony murder requires the

specific intent to commit mayhem. (People v. Sears (1965) 62 Cal.2d 737, 744-745.)

The fact that the instruction on the elements of mayhem mentioned only the intent to vex

or annoy did not render the instructions confusing or circular, as defendant claims. (See

People v. Hayes (2004) 120 Cal.App.4th 796, 804-805.)

Defendant asserts the instructions did not adequately distinguish between first

degree murder by torture and second degree torture felony murder. However, the

distinction was accurately noted by defense counsel when he pressed for the second

degree torture felony murder instruction: the second degree offense does not require

premeditation. This difference was plain on the face of the instructions, and defense


She claims her rights to due process and a jury trial under the Fifth and Sixth

Amendments were violated, as well as her right to a reliable factfinding process under the
Eighth and Fourteenth Amendments.


counsel explained it to the jury as ―real simple‖ in his closing argument. There was no

error here.

Defendant next claims that CALJIC No. 8.34, explaining aiding and abetting

liability for second degree torture felony murder, failed to distinguish between first and

second degree murder by an aider and abettor. That distinction was beyond the scope of

the instruction. CALJIC No. 8.27 explained aiding and abetting liability for first degree

mayhem felony murder. Together, these two instructions covered the liability of an aider

and abettor for felony murder in this case. Defendant complains that no instruction

directly explained aiding and abetting liability for first degree murder by torture.

However, the jury was instructed generally and properly on the liability of aiders and

abettors, and those instructions were sufficient to guide the jury in determining whether

defendant aided and abetted a first degree murder by torture. Defendant did not request a

more specific instruction. (See People v. Bennett (2009) 45 Cal.4th 577, 598.)

Defendant notes that the definition of torture was presented to the jury as it related

to torture as a lesser related offense. She contends the jury would not have understood

that the definition also applied to the earlier instructions on first degree murder by torture

and second degree torture felony murder. We are satisfied, however, that there is no

reasonable likelihood the jury would have failed to make those connections. (See People

v. Wilson (2008) 44 Cal.4th 758, 803.) Defendant also claims the first degree murder by

torture instruction, requiring the jury to find a ―willful, deliberate and premeditated intent

to inflict extreme and prolonged pain,‖ was confusing when compared with the

instruction on the crime of torture, requiring merely the ―intent to cause cruel or extreme

pain and suffering.‖ It was not. Defendant acknowledges that the distinctions between

these intent requirements are explained in People v. Aguilar (1997) 58 Cal.App.4th 1196,

1204-1206, but she contends they were too subtle for the jury. We are not so skeptical of

the jurors‘ abilities. It is fundamental that jurors are presumed to be intelligent and

capable of understanding and applying the court‘s instructions. (People v. Lewis (2001)


26 Cal.4th 334, 390.) The record reflects no confusion on the part of the jury, or requests

for further guidance on these points.

Defendant‘s final argument concerns a modified version of CALJIC No. 8.81.17,

regarding the mayhem-murder special circumstance. At defense counsel‘s request, the

court added the element of specific intent to commit mayhem. Over the prosecutor‘s

objections and with defense counsel‘s agreement, the court also imported a version of the

third paragraph of CALJIC No. 8.80, explaining the intent requirements should the jury

find that defendant was an actual killer, on the one hand, or an aider and abettor, on the

other. Defendant contends the instruction was ―hopelessly complicated.‖ We disagree;

the instruction was approved by defense counsel and comprehensible by the jury.26

4. Sufficiency of the Evidence of Torture and Mayhem

Defendant contends the evidence was insufficient to establish the criminal intent

required for mayhem felony murder, murder by torture, and the mayhem and torture

felony-murder special circumstances.27 The argument is meritless. As to the mayhem

felony-murder special circumstance, the jury found that defendant specifically intended


Defendant particularly objects to the following paragraph, which the court derived

from CALJIC 8.80: ―If you are satisfied beyond a reasonable doubt that the defendant
actually killed a human being, you need not find that the defendant intended to kill in
order to find the special circumstance to be true. However, if you find that the defendant
was not the actual killer of a human being, or if you‘re unable to decide whether the
defendant was the actual killer or an aider and abettor, you cannot find the mayhem
special circumstance to be true as to the defendant unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted any act of the commission of
murder in the first degree, or with reckless indifference to human life and as a major
participant, aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted in the commission of the crime of mayhem which resulted in the death of a
human being.‖

Defendant does not argue that the instruction was legally incorrect, but merely

claims it was confusing. We find no error.

She claims violation of her due process rights under the Fifth and Fourteenth

Amendments, and her right to a reliable verdict under the Eighth Amendment.


to commit mayhem, in the course of which Genny was murdered, and that defendant was

either the actual killer or an aider and abettor who acted with the intent to kill or with

reckless indifference to human life. As to the torture felony-murder special circumstance,

the jury found that the murder was intentional and that defendant meant to inflict extreme

and cruel physical pain for a sadistic purpose. The evidence supporting these findings

was more than adequate.

―The standard of appellate review for determining the sufficiency of the evidence

is settled. ‗ ―On appeal we review the whole record in the light most favorable to the

judgment to determine whether it discloses substantial evidence — that is, evidence that

is reasonable, credible, and of solid value — from which a reasonable trier of fact could

find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26

Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 317–320.)‖ ‘ (People

v. Abilez [(2007)] 41 Cal.4th [472,] 504.) ‗. . . We review the sufficiency of the evidence

to support an enhancement using the same standard we apply to a conviction. (People v.

Olguin (1994) 31 Cal.App.4th 1355, 1382.) Thus, we presume every fact in support of

the judgment the trier of fact could have reasonably deduced from the evidence.‘ (People

v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.)‖ (People v. Wilson, supra, 44 Cal.4th

at p. 806.)

Defendant contends there was no evidence she harbored a specific intent to maim

Genny. She relies on cases holding that evidence showing no more than an

indiscriminate attack on the victim does not support a mayhem felony-murder conviction.

(People v. Sears, supra, 62 Cal.2d 737, 745; People v. Anderson (1965) 63 Cal.2d 351,

359.) This is not such a case. Genny suffered discrete injuries over an extended period

of time, including a serious burn wound on her head, multiple bruises, scars, abrasions,

and lacerations all over her body, subdural and subarachnoid hematomas, and the severe

scalding that ultimately caused her death. The scalding required the bathtub to be filled

in advance with hot water, and Genny was deliberately held down in the water for long


enough to cause her skin and toenails to slough off. The jury had more than enough

evidence of specific intent to maim. Direct evidence that defendant actually inflicted the

fatal scalding was lacking, but powerful direct and circumstantial evidence supported the

conclusion that she at least aided and abetted Ivan in inflicting the terminal injury. 28

Defendant admitted that she removed Genny from the bathtub, severely burned, and did

not seek medical help. She also admitted that she used the blow dryer to blow air on

Genny, and the jury could have inferred that defendant inflicted the scars on Genny‘s

cheeks and elsewhere that matched the blow dryer‘s grill.

A similar analysis applies to defendant‘s claim that the evidence failed to establish

her deliberate intent to inflict the extreme and prolonged pain required for murder by

torture. (See People v. Steger (1976) 16 Cal.3d 539, 546; Walkey, supra, 177 Cal.App.3d

at pp. 275-276.) The long course of painful abuse suffered by Genny suggested that

defendant and Ivan habitually tortured her. Defendant‘s answers in the July 24 interview

with detectives confirmed that she and Ivan acted together. On the day of Genny‘s death,

one or both of them deliberately filled the tub with hot water and forced Genny into it.

Both witnessed the extreme and prolonged pain that ensued as Genny lay dying, and did

nothing to secure assistance until her body began to stiffen. Regarding the torture felony-

murder special circumstance, defendant claims the evidence failed to establish her intent

to kill. We disagree. Defendant admitted she thought Genny was dying when she pulled

her from the bathtub, unconscious. By failing to get help, she ensured Genny‘s death.

The evidence of intent to kill was sufficient.


In her reply brief, defendant relies on People v. Samaniego (2009) 172

Cal.App.4th 1148, 1164-1165, for the proposition that when the aider and abettor may
have had a less culpable mental state than the perpetrator, it is error to instruct the jury
that an aider and abettor is ―equally guilty.‖ Defendant‘s jury was similarly instructed.
However, as defendant concedes, the Samaniego court deemed the instructional error
harmless where a special circumstance alleging intent to kill was found true. (Id. at pp.
1165-1166.) Here, the jury returned such a true finding. Accordingly, Samaniego does
not aid defendant.


5. Merger of Mayhem and Homicide

Defendant contends a conviction of mayhem felony murder in this case would

violate the ―merger doctrine‖ articulated in People v. Ireland (1969) 70 Cal.2d 522, a

second degree murder case, and extended to first degree felony murder in People v.

Wilson (1969) 1 Cal.3d 431, 441-442 (Wilson).29 In her reply brief, defendant notes that

this court recently overruled Wilson and held, prospectively, that the merger doctrine has

no application to first degree felony murder. (People v. Farley (2009) 46 Cal.4th 1053,

1121-1122.) Although Farley does not apply here, the Attorney General correctly notes

that our preexisting jurisprudence had limited Wilson to cases of burglary felony murder

where the defendant‘s only felonious purpose was to assault or kill the victim. (People v.

Prince (2007) 40 Cal.4th 1179, 1262; People v. Burton (1971) 6 Cal.3d 375, 387-388.)

Defendant relies on People v. Smith (1984) 35 Cal.3d 798, 806, a second degree

murder case holding that felony child abuse, when it consists of a direct assault on a child

resulting in death, comes within the merger doctrine. Smith has no application here. We

have long restricted the merger doctrine in first degree murder cases to felony murder

based on burglary, ―due to the unusual nature of burglary.‖ (People v. Burton, supra, 6

Cal.3d at p. 388.) In any event, the crime of mayhem felony murder has an ―independent

felonious purpose‖ that distinguishes it from the felony child abuse discussed in Smith.

(Burton, at p. 387.) The defendant must intend to permanently disfigure the victim,

which goes well beyond the merely assaultive purpose the Smith court considered

incompatible with the felony-murder rule. (Smith, at pp. 805-806; People v. Sears, supra,

62 Cal.2d at pp. 744-745.)

The primary policy reason for the felony-murder doctrine was fully operative in

the circumstances of this case. ―The purpose of the felony-murder rule is to deter those

who commit the enumerated felonies from killing by holding them strictly responsible for


Defendant claims that allowing the jury to consider the felony-murder theory

violated her rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.


any killing committed by a cofelon, whether intentional, negligent, or accidental, during

the perpetration or attempted perpetration of the felony.‖ (People v. Cavitt (2004) 33

Cal.4th 187, 197.) Although defendant contends ―the felony-murder rule cannot be much

of a deterrent to a person who has decided to assault a child with intent to maim,‖ the

medical testimony here was that Genny could have survived had she been given prompt

medical care, though the scalding would have scarred her for life. This mayhem need not

have resulted in a murder. Thus, the merger doctrine has no logical application in this


6. Cumulative Guilt Phase Error

Defendant argues that this was a close case, and that the errors during the guilt

phase, even if not prejudicial in themselves, justify reversal when considered together.

Neither proposition is supportable. The case presented at the guilt phase was quite

strong, supported by graphic and telling physical evidence, both in the condition of

Genny‘s body and the conditions found in defendant‘s apartment. Defendant‘s own

statements were powerfully incriminating. The attempt by the defense to explain away

those statements and minimize defendant‘s culpability, by presenting her as a battered

woman controlled by her husband, was weak. (See pt. II.A.1.b., ante.)

Any errors during the guilt phase were relatively insignificant. Assuming it was

improper to allow the prosecutor to inform the jury that Ivan had been deemed a battered

spouse by one expert, the effect on the determination of defendant‘s guilt was negligible.

As we have noted, battered woman syndrome was not a defense to the charged crimes,

and other evidence cast serious doubt on defendant‘s status as a battered woman. (Pt.

II.A.1.b., ante.) The Verdin error discussed in part II.A.1.c., ante, was merely a technical

one, given the alternate source of authority in Evidence Code section 730 for ordering

defendant to submit to examination by mental health experts. The error in permitting Dr.

Mills to opine that the death penalty was an incentive to malinger had minimal impact, as


also discussed in part II.A.1.c., ante. We are satisfied beyond a reasonable doubt that

these irregularities, considered together, did not affect the outcome of the guilt phase.

B. Penalty Phase

1. Rebuttal Evidence and Cross-Examination of Mary Rojas

The defense called Mary Rojas, defendant‘s sister and Genny‘s mother, as a

penalty phase witness. Rojas testified about the abuse she and defendant suffered as

children. She testified that she had seven children, including ―Genny, the one that died,‖

and another daughter whom she had also named Genny. Rojas said her children were

taken away from her twice, once because her husband Pete had molested the oldest

daughter, and again because of Rojas‘s drug problems. Rojas was in a rehabilitation

program when she learned that Genny had died. She was currently living with five of her

children, and did not allow Pete to live with her.

Defense counsel asked Rojas about Genny‘s funeral and burial. Rojas said her

mother did not help with the expenses. Rojas, her church, and Pete had contributed

money to cover the costs. Genny was buried in a family plot with Rojas‘s aunt. Rojas

was still making monthly payments, and hoped to get a headstone when the plot was paid

for. Rojas loved and missed Genny and her death had been very hard on the family.

However, defendant‘s life also meant a lot to Rojas. If defendant were given the death

penalty ―it‘s going to hurt my kids again.‖

Defendant takes issue with the prosecutor‘s cross-examination of Rojas. She

objects to questions regarding Rojas‘s drug abuse and neglect of her children, exploring

where the money for Genny‘s burial came from, asking why Rojas had chosen to have

another child and name her Genny even before ―the old Genny‖ had a headstone, and

establishing that Pete was the father of the newest baby and had been at the house when

Rojas was interviewed by an investigator for the prosecution. Defendant also contends

the court erred by allowing the prosecutor to introduce photographs of Genny‘s burial

plot. She claims the prosecutor improperly attacked Rojas‘s character, which was not at


issue, and vilified defendant‘s entire family in an attempt to make the jury feel

comfortable voting for the death penalty. 30

Defendant‘s indignation is unwarranted. As the Attorney General points out,

defendant did not object at trial to many of the questions about which she now complains.

To that extent, she has forfeited her claims of error. (People v. Gray (2005) 37 Cal.4th

168, 215.) Furthermore, there was no error. ―Cross-examination . . . ‗may be directed to

the eliciting of any matter which may tend to overcome or qualify the effect of the

testimony given . . . on direct examination.‘ [Citation.]‖ (People v. McClellan (1969) 71

Cal.2d 793, 811; accord, People v. Farley, supra, 46 Cal.4th at p. 1109; see also People

v. Lancaster, supra, 41 Cal.4th at p. 102 [― ‗It is settled that the trial court is given wide

discretion in controlling the scope of relevant cross-examination.‘ ‖].)

Here, the prosecutor‘s questions were well within the scope of Rojas‘s direct

testimony, which was aimed at establishing that she had overcome the problems that led

her to lose custody of Genny, that she cared about Genny and had done what she could to

ensure a proper burial, and that despite her feelings for Genny she wanted defendant‘s

life to be spared. Questions about how Rojas‘s drug problems had affected her as a

mother, and positing that no one in the family had wanted Genny, were responsive to

considerations raised by the defense and supported by the evidence that Genny was

shuttled among Gonzales family households. It was defense counsel who established that

Rojas had another daughter named Genny, and that she did not allow Pete to live with

her. It was proper for the prosecutor to meet this testimony with evidence that Pete was

in fact the father of the second Genny, and had been seen at Rojas‘s house. The court

sustained an objection to the question about why Rojas did not wait until Genny had a

headstone before having another baby and naming her ―Genny.‖


Defendant contends the prosecutor‘s tactics, both here and in the closing

arguments discussed in the next part, violated her rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to a fundamentally fair and reliable penalty verdict.


Defense counsel also introduced the subject of Genny‘s funeral expenses and her

burial in the family plot. The prosecutor was entitled to explore this subject further. It

was within the court‘s discretion to allow the introduction of photographs, so that the jury

could see where Genny was buried. Defendant argues that the photographs were

improperly admitted as victim impact evidence without the notice required by section

190.3. ―Evidence offered as rebuttal to defense evidence in mitigation, however, is not

subject to the notice requirement of section 190.3 and need not relate to any specific

aggravating factor. (In re Ross (1995) 10 Cal.4th 184, 206–207; § 190.3.)‖ (People

v. Coffman and Marlow (2004) 34 Cal.4th 1, 109.) Although the prosecutor claimed that

the photographs were proper victim impact evidence, the court did not admit them on that

ground, but correctly ruled they were rebuttal evidence.

2. The Prosecutor’s Closing Argument

Defendant contends the prosecutor improperly employed inflammatory rhetoric

during closing argument, calculated to appeal to the jury‘s emotions.31 Before turning to

the statements at issue, we note generally that ―[u]nlike the guilt determination, where

appeals to the jury‘s passions are inappropriate, in making the penalty decision, the jury

must make a moral assessment of all the relevant facts as they reflect on its decision.

[Citations.] Emotion must not reign over reason and, on objection, courts should guard

against prejudicially emotional argument. [Citation.] But emotion need not, indeed,

cannot, be entirely excluded from the jury‘s moral assessment.‘ [Citation.]‖ (People v.

Leonard (2007) 40 Cal.4th 1370, 1418; accord, People v. Jackson (2009) 45 Cal.4th 662,


Defendant objects to the following comments on Mary Rojas‘s testimony: ―As we

sat here on Thursday and listened to the victim‘s mother come into this trial, it had to be


Defendant claims violation of her rights to a fundamentally fair trial and a reliable

penalty determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments.


the most offensive and repulsive testimony ever heard in a courtroom. It was shocking.

It was without humanity, and it was without compassion.

―Now, think about this, don‘t think about it in this case setting; just think about it

generically. We had a victim‘s mother, a victim‘s mother come in and testify for the

defense in a case where a daughter was horribly murdered — that, that is different again

than any reality that we will ever know outside of a courtroom like this, a victim‘s mother

testifying for the defense — we didn‘t just have any victim‘s mother, it was Genny‘s

mother, this little girl‘s, in this last photograph that we have of her, her mother.

―And I hate even saying those words, ‗mother.‘ Let‘s call her the biological

mother because that‘s all she is. She is genetically related to what was Genevieve Rojas,

not Genny Rojas, Genevieve Rojas, the old Genny.‖

After asserting that Rojas‘s testimony reflected no compassion for Genny, the

prosecutor continued: ―Real parents who lose a child freak out. They lose their minds.

They wear their child‘s death on their sleeve as a badge. They never get over it. It alters

their lives forever. They lose their marriages. They lose their jobs. They end up with

alcohol problems. They commit suicide because, when you lose a child, you lose a part

of you. That‘s what being a parent is.

―And if you remember in voir dire, back in February, when I asked you about —

and it sounded like a stupid question — what‘s a parent? It was for Thursday. It was for

Mary Rojas, because she‘s not a parent; she‘s biologically related to Genny Rojas, and

that is it.‖

A little later, the prosecutor added these comments: ―Of course, then she names

her daughter ‗Genny,‘ her new Genny. She gets back together with her molesting

husband, who molested one of the other daughters. And she testifies on direct that she

never sees Pete anymore, Pete Rojas, and that‘s her choice. Of course, on cross, she

finally admits, ‗Oh, yeah, he‘s the father of new Genny.‘ New Genny, people who lose

dogs and cats don‘t rename their new pets after their old pets. That shows you what a


fungible item Genevieve Rojas was to Mary Rojas and this family, if that‘s what you

want to call them.‖

Defendant argues that Rojas‘s shortcomings as a parent were irrelevant to the

penalty determination, and that the prosecutor sought to dehumanize the entire family in

the eyes of the jury. No such objection was raised below, and therefore defendant has

forfeited this claim of error. (People v. Huggins (2006) 38 Cal.4th 175, 251-252.)

Defendant contends the court and both parties agreed that no objections would be

required to preserve objections made by defense counsel in advance of the penalty phase

arguments. However, counsel did not refer to Rojas‘s testimony in his anticipatory

objections, and made it plain that he understood the necessity of objecting to any new

matter he deemed improper.32

Even if counsel had objected, the court could properly have allowed this argument.

Certainly, Rojas‘s testimony opposing the death penalty for defendant was an important

part of the penalty defense. The prosecutor was entitled to seek to undermine her moral

standing and cast doubt on the weight to be given her testimony. What we said in People

v. Dennis (1998) 17 Cal.4th 468 applies here as well: ―In the challenged remarks, the

prosecutor did not substantially misstate the facts or go beyond the record. Ultimately,

the test for misconduct is whether the prosecutor has employed deceptive or

reprehensible methods to persuade either the court or the jury. (People v. Rowland

(1992) 4 Cal.4th 238, 274.) As we observed in Rowland, ‗Although harsh and

unbecoming, the challenged remarks constituted reasonable — if hyperbolic and

tendentious — inferences from the evidence. There is no reasonable likelihood that the


Before trial, defense counsel filed a motion seeking to preclude the prosecutor

from commenting that Mary Rojas did not care about Genny. This motion, however,
concerned only the guilt phase, and was premised on the idea that without calling Mary
Rojas to the stand, the prosecutor had no ground for asserting that she did not care about
Genny. Thus, the motion did not operate to preserve any objections during the penalty
phase. It did, however, demonstrate that the defense was fully aware of the risks entailed
in putting Mary Rojas on the witness stand.


jury understood the words otherwise.‘ (Id. at p. 277.) Here, as was true in Rowland, the

prosecutor‘s remarks did not amount to deceptive or reprehensible methods of

persuasion.‖ (People v. Dennis, supra, 17 Cal.4th at p. 522; see also People v. Huggins,

supra, 38 Cal.4th at p. 253.)

Defense counsel did object during the next portion of the argument challenged by

defendant on appeal. We set out this passage in full:

―[The prosecutor]: Remember who this case is about. We‘re here because of this

little girl. She is special, and that‘s why it‘s a capital case. Genny didn‘t have a trial and

she had no one to speak for her, no one in society to speak for her; so I wrote a letter to

Genny about what society‘s outrage is regarding this case.

―[Defense counsel]: Your honor, I object to this, inflammatory rhetoric, ask for an


―The Court: Overruled. Thus far.

―[The prosecutor]: Genevieve Rojas, born January 3rd, 1991, murdered July 21st,

1995. That means she was four and a half when she was murdered and tortured. Genny,

perhaps it was a rainy, balmy day when you first cried in pain. Perhaps it was a day like

this, a sunny day when happy children like to swing in swings, tumble down grassy banks

and laugh and experience the freshness of life when the darkness we call child abuse

crept into your life. Wherever it was, whenever it was, Genny, we were not there. We

were too late to hear your cry for help.

―[Defense counsel]: Objection, your honor. It‘s inflammatory rhetoric, ask for an


―The Court: Overruled.

―[The prosecutor]: You were too young to know that we would care, too young to

know that you could reach out and we would help you. We hear your cries of pain now

as the story of those horrible last weeks of your life begin to unfold. It is so painful to

picture the life as you saw it, to picture the life of a beautiful little girl being destroyed.


We know now what they did to you. Before your death, we never imagined any human

being with a heart and a soul could do that to a human being.

―As if we were hearing a nightmare, we heard how you were handcuffed behind

your back and until your tiny biceps bled. We heard how you were hung from a hook at

night in a closet, alone and afraid. We felt your claustrophobic conditions when the

defendant put you into a box, a closet, and a tub to scare you, that you were so frightened

that you had diarrhea, which brought about more abuse and more torture. We know that

now, too.

―[Defense counsel]: Objection, your honor. Misstates the evidence, ask for an


―[The prosecutor]: It‘s what the defendant said.

―The Court: Overruled, overruled. Just let me add a comment, ladies and

gentlemen, excuse the interruption of both counsel. It‘s impossible in a case like this for

there not to be substantial emotions on both sides. No matter whose version of the

events, no matter whose take on the events you hear, it will be loaded with emotion; so

you will hear and feel emotion today. I only remind you that that emotion needs to be

channeled through the factors in aggravation, mitigation that I‘ve instructed you about.

Excuse me. Go ahead.

―[The prosecutor]: We see the shattered remnants of your smiling face, scarred

with burns from a blow dryer as the defendant inflicted unimaginable amounts of pain on

what was once your cute little chubby cheeks. We see the bruises and wounds from

people who embraced the pain of hitting a four-year-old in the face. We see your head,

no longer with the wavy locks of a four-year-old child, but the grotesque red masses of a

horrible burn. We try to conceptualize, rationalize and make sense of your maiming, yet

we can never know what it feels like to have the skin burned off your naked, bruised

body. We will never know the horror you went through as your skin weeped and your

life slowly and methodically was taken away from you.


―How did it feel to stare at your abusers as your life ended? Did you think of

love? Did you think of your choice, your choice to live, your choice to die? Genny, we

do not understand. All of us want to hold you. All of us want to stop them from

attacking you, but we can‘t. It is too late to stop them from hurting you. And for that, we

are truly sorry. You must have been frightened. You must have been cold. You must

have been lonely. You must have been tired and hungry; but worst of all, you must have

felt abandoned by all of us.

―To know the agony, the humiliation and the intimidation and other abuse you

suffered before you gave into death makes us angry. To think that death would be a

merciful end to your pain only illuminates the torture and abuse that you suffered. That,

too, angers us, anger that society sleeps while other young children like yourself suffer.

―[Defense counsel]: Objection, your honor. It‘s irrelevant, ask for an admonition.

―The Court: Overruled.

―[The prosecutor]: That we did not hear you nor see your sadness in your eyes,

your fear and your anxiety brings us shame. You had no spokesperson for life. And for

that, we are truly sorry. For your whole life, not one person ever cared for you, cared for

you as a parent and cared for you as a human being. You will never be able to go to a

ball game, to play soccer, to play bobby sox softball or even go to a school play. When

you needed it most, no one would hold you and love you, love you and tell you that

everything would be all right.

―Genny, you will not be forgotten. We promise that you will not die in vain. We

promise that you will always be in our hearts, in our souls. We choose, we collectively

choose to adopt you and to care for you.

―[Defense counsel]: Objection, your honor. Inflammatory rhetoric, statement of

personal opinion, ask for an admonition.

―The Court: Overruled.

―[The prosecutor]: You —


―The Court: Excuse me. With regard to the statement of personal opinion, the

personal opinion of none of the attorneys in this case is relevant to you, ladies and

gentlemen. Your personal opinions are relevant, and I remind you of that. Go ahead.

―[The prosecutor]: We choose as a group to adopt you and to take care of you.

You are a member of our family, those of us who have lived with you here in Department

32. We refuse to reject you as your mother and father did for a life of drugs and

molestation. We refuse to ignore you as your grandmother and other relatives did to you.

You are us and we are a part of you. We will hold your torturers accountable, no matter

what pain it puts us through, for we, Genny, will put you first and foremost in our souls.

We will not allow the defendant to portray herself as a victim. We have seen your

journey of torture and abuse —

―[Defense counsel]: Your honor, I object, also inflammatory rhetoric, statement of

personal opinion, improper, ask for an admonition.

―The Court: Overruled. Go ahead, counsel.

―[The prosecutor]: The defendant is not a victim. No one who does this to a child

can ever be called a victim. No one who embraces inflicting pain upon your body should

ever be allowed to portray herself as a victim. We know now what a victim is. A victim

is someone who has a blow dryer placed against her face, who is hung in a closet and

who is stuffed in a box. We, Genny, make a commitment, a commitment to stop the

defendant and hold her accountable. Our strength will not wax nor wane despite the

assaults on our logic and common sense. We see you as an example of courage and

commitment. We will not let you go nor will we ever let you down.‖

Defendant contends this ―letter to Genny‖ was an improper emotional appeal for

the jury to commit themselves to vote for execution, to reject defendant‘s family and

substitute themselves as Genny‘s family, and to personally exact vengeance for what

happened to Genny. Defendant argues that the court‘s admonitions were ineffective.

First, the court told the jurors to channel their emotions through the factors in aggravation


and mitigation, in effect telling them to allow the emotions evoked by the prosecutor to

be a factor in the weighing process. Then, the court advised that the attorneys‘ opinions

were irrelevant but the jurors‘ personal opinions were relevant, opening the door for the

jury to accept the prosecutor‘s impassioned assertions, which were couched in the first

person plural, and act on the basis of passion and prejudice during deliberations.

The Attorney General responds that the ―letter to Genny‖ was proper as an

expression of community outrage (see People v. Zambrano (2007) 41 Cal.4th 1082,

1178-1179), an invitation to empathize with the suffering of the victim (see People v.

Dykes (2009) 46 Cal.4th 731, 794), and a description of Genny‘s vulnerability (see

People v. Guerra (2006) 37 Cal.4th 1067, 1156). Noting that during the penalty phase,

―considerable leeway is given for emotional appeal so long as it relates to relevant

considerations‖ (People v. Bittaker (1989) 48 Cal.3d 1046, 1110, fn. 35; see also People

v. Riggs (2008) 44 Cal.4th 248, 323), the Attorney General argues that the trial court

properly reminded the jurors to channel emotion through the statutory aggravating and

mitigating factors, and to rely on their own opinions rather than those of counsel.

No bright line separates unduly inflammatory prosecutorial argument from

legitimate advocacy at the penalty phase of a capital trial, where the jury must make a

moral assessment and the harm inflicted on the victims is a relevant consideration. We

have noted that allowing the jury to consider victim impact evidence ― ‗does not mean

that there are no limits on emotional evidence and argument. . . .‘ ‖ (People v. Robinson

(2005) 37 Cal.4th 592, 651, quoting People v. Edwards (1991) 54 Cal.3d 787, 836.)

― ‗ ―[T]he jury must face its obligation soberly and rationally, and should not be given the

impression that emotion may reign over reason.‖ ‘ ‖ ― [A]lthough a court should

‗ ―allow evidence and argument on emotional though relevant subjects that could provide

legitimate reasons to sway the jury to show mercy or to impose the ultimate sanction,‖ ‘

still, ‗ ―irrelevant information or inflammatory rhetoric that diverts the jury‘s attention

from its proper role or invites an irrational, purely subjective response should be


curtailed.‖ ‘ (Edwards, supra, 54 Cal.3d 787, 836, quoting People v. Haskett (1982) 30

Cal.3d 841, 864.)‖ (Robinson, supra, 37 Cal.4th at pp. 651-652; see also People v.

Prince, supra, 40 Cal.4th at pp. 1286-1287; People v. Benavides, supra, 35 Cal.4th at p.


Here, the court should have curtailed the prosecutor‘s extended and melodramatic

oration couched as a letter to the victim, by sustaining defense counsel‘s objections and

admonishing the jury. Portions of the argument were permissible as expressions of

outrage, appeals to empathy, and descriptions of both Genny‘s vulnerability and

defendant‘s conduct. However, the passages urging jurors to personally feel shame for

society‘s failure to protect Genny and other abused children, the assertion that ―we

collectively choose to adopt you and to care for you,‖ and similar invitations to take the

role of a protective family for this victim were plainly improper. The prosecutor asked

the jurors, in emotional terms, to go far beyond their role as the arbiters of punishment

prescribed by law. He invited them to consider the failure of society at large to protect

abused children, and then to join him in assuming the role of a nuclear family for Genny.

These purely emotional appeals invited a subjective response from the jurors and tended

to divert them from their proper role of rational deliberation on the statutory factors

governing the penalty determination. It was the trial court‘s responsibility to intervene

and redirect the jury, to remind it that its duty was not to replace Genny‘s family or to

answer for the failures of society at large to prevent child abuse, but to reach a penalty

decision based on the facts of this case.

The court‘s admonitions, while partially effective, were insufficient. Reminding

the jury to channel its emotions through the aggravating and mitigating factors was

appropriate insofar as the prosecutor‘s emotional appeals related to those factors, or to the

jury‘s proper role as the conscience of the community operating within the criminal

justice system. (See People v. Zambrano, supra, 41 Cal.4th at pp. 1178-1179.) This was

not, however, an adequate check on the prosecutor‘s untethered summons to the jury to


―adopt‖ the victim as the benevolent family she never had, and essentially to act as her

protector and advocate during deliberations. Similarly, while it was proper to remind the

jury that the opinions of counsel were irrelevant, the court‘s advice that the jurors‘ own

opinions were relevant did not sufficiently stem the effects of the argument soliciting

subjective, irrational emotions from the jurors.

We turn to the question of prejudice. In evaluating the effects of improper

argument at the penalty phase, ― ‗we apply the reasonable possibility standard of

prejudice first articulated in People v. Brown [(1988)] 46 Cal.3d [432,] 448, . . . which

. . . is the ―same in substance and effect‖ as the beyond-a-reasonable-doubt test for

prejudice articulated in Chapman v. California [, supra,] 386 U.S. 18.‘ (People v.

Wallace [, supra,] 44 Cal.4th 1032, 1092.)‖ (People v. Dykes, supra, 46 Cal.4th at p.

786.)33 Thus, we must decide whether there is a reasonable possibility that the jury

would have returned a different penalty verdict absent the inflammatory and irrelevant

aspects of the prosecutor‘s ―letter to Genny.‖ We conclude there is not, for the following


First, the prosecutor‘s improper remarks were not central to the case he presented

in closing argument. They were rhetorical flourishes following the prosecutor‘s initial

comments on the defense penalty phase witnesses. The prosecutor then proceeded with

a more traditional series of arguments focused on the circumstances of the offense and


The Attorney General notes that for purposes of federal constitutional error, ―it ‗is

not enough that the prosecutor‘s remarks were undesirable or even universally
condemned.‘ [Citation.] The relevant question is whether the prosecutor‘s comments ‗so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.‘ [Citation.]‖ (Darden v. Wainwright (1986) 477 U.S. 168, 181.) While the
Darden court did not frame its holding in terms of prejudice (id. at p. 183, fn. 15), our
review under the reasonable possibility standard is equivalent to a determination whether
the prosecutor‘s inflammatory rhetoric undermined the fundamental fairness of the
penalty phase. If there is no reasonable possibility the jury‘s verdict was affected, the
proceeding could not be deemed a denial of due process. Nor would it be an unreliable
verdict for purposes of defendant‘s Eighth Amendment claim.


defendant‘s character. He methodically went through the statutory aggravating and

mitigating factors, and did not return to the objectionable themes of the ―letter to Genny.‖

Second, the circumstances of this murder were almost unimaginably horrible.

They involved a prolonged and varied course of neglect, starvation, torture, and maiming

ultimately culminating in the death by scalding of a four-year-old child. No medical

attention was sought for Genny, and the evidence supported a conclusion that defendant

and Ivan continued to abuse her even as she lay dying. All the events took place in

defendant‘s home, and her attempt to escape blame by casting herself as an abused

spouse could only have been viewed by the jury as desperately weak.34 The attitudes

expressed by defendant in her videotaped interviews placed her in a very unsympathetic

light. The emotions inevitably aroused by the guilt phase evidence were substantially

more powerful than those the prosecutor sought to stir in the improper portions of his

argument, and were a legitimate factor supporting capital punishment.

Third, the defense at the penalty phase was hobbled by the fact that the adult

family members asking the jury to spare defendant‘s life were themselves complicit in

Genny‘s endangerment. The Negrettes and Mary Rojas had returned Genny to her

grandmother, even though they knew she was an abusive caretaker. This was an unusual

case in which witnesses who would ordinarily be giving victim impact testimony for the

prosecution were not only testifying for the defense, but also had failed to protect the

victim. Furthermore, while defendant relied on evidence of her own abuse at the hands


At the penalty phase, the defense put little weight on the battered woman theory.

It argued that defendant was a minor participant compared to Ivan, and that her
culpability was mitigated by intoxication, posttraumatic stress disorder, and her own
history of abuse as a child. Counsel urged the jury to consider the impact of a death
verdict on defendant‘s family, especially her children, to avoid vindictive emotion during
deliberations, and to consider that life in prison was an appropriately harsh punishment.

Nevertheless, the jury would naturally and properly have considered the evidence

presented at the guilt phase, including defendant‘s attempt to cast herself as an abused
victim rather than an abuser.


of her parents and husband, the abuse she described paled in comparison to the torture

and maiming she and Ivan inflicted on Genny. When a murder is the result of extreme

forms of child abuse, mitigating evidence of the kind presented here loses much of its

persuasive impact.

For all these reasons, we hold that there is no ―reasonable (i.e., realistic)

possibility‖ that the jury was diverted from returning a life sentence by the improper

arguments in the prosecutor‘s ―letter to Genny.‖ (People v. Brown, supra, 46 Cal.3d at p.

448; see People v. Cowan (2010) 50 Cal.4th 401, 491.)

Defendant raises a final claim of improper argument. The prosecutor, in the

course of asserting that defendant‘s participation in the murder was not minor (§ 190.3,

factor (j)), commented: ―One other thing that proves she did it, and that‘s her child abuse

history. She learned, she was schooled in terror. She has a bachelor‘s degree in child

abuse. She learned to discipline and she learned to punish. She is Tillie [defendant‘s

mother] — actually, she‘s worse than Tillie. She‘s graduated. She has a Ph.D. in child

abuse.‖ Defendant incorporates by reference her guilt phase arguments that the

prosecutor made improper use of the child abuse evidence (pt. II.A.2., ante) and contends

it was unconscionable to again use that evidence to persuade the jury that death was the

proper penalty.35 Defendant did not object at trial, and therefore she has forfeited this

claim of error. (People v. Huggins, supra, 38 Cal.4th at p. 251-252.) In any event, we

have held that the prosecutor was properly allowed during the guilt phase to respond to

the evidence of abuse during defendant‘s childhood with expert testimony that such a

history can lead the victim to become an abuser. (Pt. II.A.2., ante.) His passing

reference to this point in closing at the penalty phase overstated the impact of that


Defense counsel made this objection in advance of the penalty phase argument.

The court ruled that both sides were free to argue the inferences that might rationally be
drawn from the child abuse evidence.


testimony, but was not so flagrant as to amount to misconduct or to prejudice the jury‘s


3. Restriction of Defense Counsel’s Closing Argument

In a discussion before the penalty phase began, defense counsel indicated that he

intended to talk about other capital cases only if the prosecutor argued that ―if there ever

was a case that cries out for the death penalty, this is it.‖ The prosecutor said he did

indeed intend to make that argument. The court was skeptical about ―counsel litigating

other cases in their argument.‖ Further discussion was deferred. When the parties

returned to the subject, defense counsel explained that he meant to respond to the

prosecutor‘s argument by commenting on two or three other cases, such as the murder of

Martin Luther King, Jr., the murders of children by Wayne Williams in Atlanta, and the

Terry Nichols prosecution for the Oklahoma City bombing. He wanted to tell the jury

about ―cases that people are generally familiar with through the media that are bad cases

[where] there wasn‘t a death penalty for whatever reason . . . just to show that the death

penalty . . . isn‘t always required for every single bad case and is not mandatory.‖

The prosecutor responded that there were many reasons why the death penalty was

not imposed in such cases, which he would explore if defense counsel mentioned them.

The court was not willing to allow references to other specific cases, noting that it would

take the focus away from the individualized sentencing determination that was the jury‘s

task, and divert its attention toward the various reasons why the death penalty was not

administered in other cases. However, the court told defense counsel he was free to tell

the jurors that they were all aware of other horrible cases in which the death penalty was

not imposed, without mentioning specific instances. The court noted that the

prosecutor‘s argument was ―hyperbole,‖ and added ―you‘re absolutely entitled to meet

that on the same level that it‘s offered.‖


Defendant contends the court improperly restricted defense counsel‘s argument.36

We disagree. In the first place, as a matter of logic the prosecutor did not open the door

to an exploration of other murder prosecutions by claiming, as he did in closing

argument, that ―if any murder requires the death penalty, this is it. If this isn‘t an

appropriate case for capital punishment, then nothing is.‖ This is not a comparative

claim, but a categorical one. The consideration that other cases might seem equally

appropriate for capital punishment, yet not reach that result, is not responsive to the

assertion that this case justifies the death penalty if any case does. The prosecutor‘s

argument was not premised on the notion that the present case was worse than any other,

or that all similar cases required the death penalty. Instead, it stood on the ground that

defendant‘s case was so suitable for capital punishment that the only justification for not

imposing it would be an objection to capital punishment in all cases. This is an entirely

proper argument and does not invite comparisons with other specific notorious cases.

Furthermore, the court was rightly concerned with the distraction involved in the

argument proposed by defense counsel. To meet the point counsel wanted to make, the

prosecutor would have been entitled to explain why the death penalty was not imposed in

the other cases. We have repeatedly upheld trial court restrictions on arguments

comparing a defendant‘s case to other well-known murders. (People v. Farley, supra, 46

Cal.4th at p. 1130-1131, citing cases; see also People v. Ervine (2009) 47 Cal.4th 745,

800-801.) ―A criminal defendant has a well-established constitutional right to have

counsel present closing argument to the trier of fact. [Citations.] This right is not

unbounded, however; the trial court retains discretion to impose reasonable time limits

and to ensure that argument does not stray unduly from the mark. [Citation.]‖ (People v.

Marshall (1996) 13 Cal.4th 799, 854-855.) The court did not abuse its discretion here.


Although she recognizes that such a claim of error is grounded in the Sixth

Amendment right to counsel, defendant also asserts error under the Fifth, Eighth, and
Fourteenth Amendments.


4. Alleged Flaws in Capital Trial and Sentencing Procedures

Defendant raises a series of familiar objections to California capital trial and

sentencing procedures. We reject them, as we have before. Thus:

Defendant asserts that the trial court erred by refusing her request for sequestered

voir dire pursuant to Hovey v. Superior Court (1980) 28 Cal.3d 1. She contends the

Hovey procedures are constitutionally required. We have rejected that claim, and do so

again here. (E.g., People v. Lewis (2008) 43 Cal.4th 415, 494; People v. Brasure (2008)

42 Cal.4th 1037, 1050-1051; People v. Alfaro (2007) 41 Cal.4th 1277, 1315.)

The federal constitution requires neither unanimity nor proof beyond a reasonable

doubt for the jury to make findings on aggravating and mitigating factors. The

reasonable doubt standard is also inapplicable to the jury‘s determination that death is the

appropriate penalty. Nothing in Cunningham v. California (2007) 549 U.S. 270,

Apprendi v. New Jersey (2000) 530 U.S. 466, or Ring v. Arizona (2002) 536 U.S. 584,

affects our conclusions in these regards. (E.g., People v. Martinez (2009) 47 Cal.4th 399,

455; People v. Farley, supra, 46 Cal.4th at pp. 1133-1134; People v. Loker (2008) 44

Cal.4th 691, 755.)

The absence of written findings reflecting the jury‘s consideration of the

sentencing factors does not violate a defendant‘s constitutional rights. (E.g., People v.

Martinez, supra, 47 Cal.4th at p. 455; People v. Farley, supra, 46 Cal.4th at p. 1134;

People v. Loker, supra, 44 Cal.4th at p. 755.)

The statutory special circumstances that qualify a defendant for the death penalty,

including the felony-murder special circumstance, are not unconstitutionally overbroad.

(E.g., People v. Farley, supra, 46 Cal.4th at p. 1133; People v. Loker, supra, 44 Cal.4th at

p. 755; People v. Harris (2005) 37 Cal.4th 310, 365.)


Intercase proportionality review is not constitutionally required. (E.g., People v.

Martinez, supra, 47 Cal.4th at p. 455; People v. Farley, supra, 46 Cal.4th at p. 1134;

People v. Loker, supra, 44 Cal.4th at p. 755.)37

The use in the sentencing factors of such adjectives as ―extreme‖ (§ 190.3, factors

(d), (g)) and ―substantial‖ (§ 190.3, factor (g)) does not act as an unconstitutional barrier

to the consideration of mitigating evidence. (E.g., People v. Martinez, supra, 47 Cal.4th

at p. 455; People v. Farley, supra, 46 Cal.4th at p. 1134; People v. Parson (2008) 44

Cal.4th 332, 369-370.)

Defendant claims broadly, and without supporting argument, that the factors in

aggravation provided in section 190.3 have been applied so broadly as to result in

arbitrary and contradictory results. We have consistently rejected this argument in

connection with the broadest factor, the ―circumstances of the crime.‖ (§ 190.3, factor

(a); see, e.g., People v. Brady (2010) 50 Cal.4th 547, 590; People v. Farley, supra, 46

Cal.4th at p. 1133; People v. Loker, supra, 44 Cal.4th at p. 755.) Defendant offers no

reason for altering our conclusion with respect to the other more specific aggravating


Prosecutorial discretion in deciding whether to seek the death penalty does not

result in a violation of equal protection, due process, or reliability in capital sentencing.

(E.g., People v. Brady, supra, 50 Cal.4th at p. 589; People v. Harris, supra, 37 Cal.4th at

p. 366; People v. Brown (2004) 33 Cal.4th 382, 403.)

The delays entailed in the appellate process for capital cases do not amount to

cruel and unusual punishment. (E.g., People v. Brady, supra, 50 Cal.4th at p. 589;


Defendant also asserts that California unconstitutionally fails to require intracase

proportionality review. However, as the Attorney General points out, this court routinely
performs such review. (E.g., People v. Kelly (2007) 42 Cal.4th 763, 800.) For the first
time in her reply brief, defendant claims error in the failure to permit her jury to perform
intracase proportionality review by comparing her culpability with that of her husband
Ivan. Even if this claim were timely raised, defendant fails to explicate it in sufficient
detail to permit meaningful review.


People v. Bennett, supra, 45 Cal.4th at pp. 629-630; People v. Jones (2003) 29 Cal.4th

1229, 1267.)

Defendant claims that this court has been so influenced by political pressure in its

review of capital cases that various constitutional rights associated with meaningful

appellate review have been abrogated. We disagree, as we have in past cases. (E.g.,

People v. Prince, supra, 40 Cal.4th at p. 1299; People v. Avila (2006) 38 Cal.4th 491,

615; People v. Kipp (2001) 26 Cal.4th 1100, 1140-41.)

The failure to provide for a ―presumption of life‖ does not violate the federal

constitution. (E.g., People v. Lomax (2010) 49 Cal.4th 530, 594-595; People v. Gamache

(2010) 48 Cal.4th 347, 407; People v. Parson, supra, 44 Cal.4th at p. 371.) Nor does

California‘s death penalty law violate international law, such as the International

Covenant on Civil and Political Rights, or the American Declaration of the Rights and

Duties of Man. (E.g., People v. Hamilton (2009) 45 Cal.4th 863, 961; People v. Alfaro,

supra, 41 Cal.4th at p. 1332; People v. Avila, supra, 38 Cal.4th at p. 615.)

5. Cumulative Prejudice

Defendant argues that errors deemed harmless at the guilt phase may nevertheless

have been determinative at the penalty trial. We have reviewed the cumulative impact of

the guilt phase errors above, and entertained no reasonable doubt that they had any

significant impact on defendant‘s conviction. (Pt. II.A.6., ante.) We also conclude there

is no reasonable possibility that they affected the penalty determination. (See People v.

Prince, supra, 40 Cal.4th at p. 1299.)

Defendant further argues that her penalty phase presented an unusually close case,

so that any error during that phase must be deemed prejudicial. We have concluded that

the court‘s error in failing to curtail unduly inflammatory passages in the prosecutor‘s

closing argument was harmless, ―under the most exacting standard of review.‖ (People v.

Prince, supra, 40 Cal.4th at p. 1299; see pt. II.B2., ante.) Defendant contends this case

involved only ―a single period of aberrant behavior,‖ and that the evidence in mitigation


was compelling. While it is true there was only one victim here, the evidence

demonstrated that defendant was at least complicit in the abuse and torture Genny

suffered for a period of weeks if not months. This prolonged course of conduct

culminated in a particularly horrible death by scalding that defendant did nothing to avert,

despite ample opportunity to seek help. When these circumstances are balanced against

the evidence in mitigation, we cannot say this was an especially close case at the penalty

phase. We will not disturb the jury‘s verdict.


The judgment is affirmed.






I concur with the majority‘s conclusion that there was no reversible error in the

guilt phase portion of the trial. I also agree that portions of the prosecutor‘s letter to

Genny Rojas were ―plainly improper.‖ (Maj. opn., ante, at p. 70.) I disagree, however,

with the majority‘s holding that the reading of the letter was harmless error. To be

reversible error, there need only be a reasonable possibility that the jury would have

returned a verdict of life without possibility of parole if the prosecutor had not improperly

appealed to the jury‘s passions. Based on this record, I cannot say there is no reasonable

possibility. On the basis of this one issue, I would conclude the sentence of death must

be reversed.

I fully recognize that many cases have held that a prosecutor‘s argument, although

emotional, does not cause the proceedings to cross over into the realm where emotion

reigns over reason. (E.g., People v. Leonard (2007) 40 Cal.4th 1370, 1418 [―‗Emotion

must not reign over reason and, on objection, courts should guard against prejudicially

emotional argument‘‖].) Neither the cases cited by the parties nor any case I have

located, however, contain anything similar to the prosecutor‘s letter to Genny.

In numerous cases, this court has approved prosecutors‘ penalty phase arguments

that urged the jury to stand in the victims‘ shoes and consider the pain and fear felt by the

victims and the years of life of which the victims were deprived. (E.g., People v.

Slaughter (2002) 27 Cal.4th 1187, 1212; People v. Cole (2004) 33 Cal.4th 1158, 1233;

People v. Chatman (2006) 38 Cal.4th 344, 388.) In other cases, the court has approved


penalty phase arguments urging the jury to consider the anguish felt by the victims‘

families. (E.g., People v. Jackson (2009) 45 Cal.4th 662, 692.) The court has also

approved penalty phase summations stating that all members of society are victims when

a person is murdered and describing the jurors as the conscience of an injured society.

(People v. Mendoza (2007) 42 Cal.4th 686, 706.)

In none of those cases, however, did the prosecutors reach the emotional pitch the

prosecutor attained in his letter in this case. No previous case has approved an argument

in the form of an impassioned, imaginary letter to a child victim. The court has never

found proper an invitation to jurors to adopt the victim posthumously and become her

parents. Never before has the court found proper or harmless an argument that

purports—using the first person plural—to speak for the jurors themselves, saying ―[y]ou

are a member of our family, those of us who have lived with you here in Department 32,‖

and ―we will hold your torturers accountable‖ by imposing death. (Italics added.) In this

case, the prosecutor‘s argument not only undertook to replace the jurors‘ reason with

their emotions as adoptive ―parents,‖ it also undertook to tell them in their own voices

what their decision was. Because of the tactics of (1) telling the jurors that they not only

should sympathize with the victim but that they were the victim’s parents, and

(2) identifying the jurors with the prosecutor (―we‖) and telling them we will impose

death, the prosecutor‘s letter is something new.

Case law makes it clear that emotion is relevant to a jury‘s assessment of the

suitability of the death penalty. (People v. Leonard, supra, 40 Cal.4th at p. 1418

[―‗emotion need not, indeed, cannot, be entirely excluded from the jury‘s moral

assessment‘‖].) We are confronted here with the rare situation in which the prosecutor‘s

penalty phase argument goes too far. It is essential that the point at which passion

becomes excessive be real and enforceable, and enforced, not merely theoretical.

In my opinion, the prosecutor‘s letter in this case crosses the line. This court‘s

discussion of a Texas case in People v. Robinson (2005) 37 Cal.4th 592 is instructive.


The Robinson court described Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330 as

an ―extreme example‖ of a ―due process infirmity.‖ (Robinson, supra, at p. 652.) In

Salazar, the prosecution introduced a 17-minute video montage of the victim‘s life,

which included 140 photographs and was set to emotional music, including ―My Heart

Will Go On‖ by Celine Dion from the soundtrack of the film Titanic (20th Century Fox

1997). The Texas Court of Criminal Appeals reversed a lower court‘s ruling that this

presentation was admissible and remanded for an assessment of prejudice. The Texas

court stated that ―‗the punishment phase of a criminal trial is not a memorial service for

the victim. What may be entirely appropriate eulogies to celebrate the life and

accomplishments of a unique individual are not necessarily admissible in a criminal

trial .…‘‖ (Robinson, supra, at p. 652.) After remand, the error was found prejudicial.

(Id. at p. 652, fn. 32.) The prosecutor‘s letter in this case was argument, not evidence, but

its purpose and effect were similar.

The situation in People v. Mendoza, supra, 42 Cal.4th at page 706, illustrates how

the letter was excessively emotional. In Mendoza, the prosecutor stated in the penalty

phase summation that people in society as a whole were victims of the murder. This

court held that this was a proper argument about the harm to society done by the

defendant. The prosecutor went on, however, to state that the jurors in particular were

victims because the defendant burdened them with the difficult duty of deciding whether

to impose death. This court held that it was improper to single out the jurors as especially

victimized, but concluded that the trial court identified the error and gave an adequate

curative instruction.

In this case, the prosecutor did not tell the jurors they were victims, but told them

they were something perhaps even more emotionally powerful—the victim’s parents.

The prosecutor did not merely ask the jurors to stand in the victim‘s shoes or the victim‘s

family‘s shoes. He informed the jurors that ―we‖—himself and the jury—were the

victim‘s parents by adoption. This is not a proper role for a juror to assume even in a


death penalty case where appeals to emotion are appropriate. The reason why becomes

obvious by simply looking to the prosecutor‘s own words used when describing the role

of a parent. He said, ―Real parents who lose a child freak out. They lose their minds.

They wear their child‘s death on their sleeve as a badge. They never get over it. It alters

their lives forever. They lose their marriages. They lose their jobs. They end up with

alcohol problems. They commit suicide because, when you lose a child, you lose a part

of you. That‘s what being a parent is.‖ Despite defense counsel‘s objections to the

reading of the letter, the court gave no curative instruction except the general statement

that the attorneys‘ personal opinions were not relevant, which, as the majority holds, was


The United States Supreme Court‘s comment in Gardner v. Florida (1977) 430

U.S. 349, 358, is relevant to our situation: ―It is of vital importance to the defendant and

to the community that any decision to impose the death sentence be, and appear to be,

based on reason rather than caprice or emotion.‖ (Italics added.) A death sentence lacks

the moral authority the community intends it to have if, because of a prosecutor‘s

overzealous evocation of the passion for retribution, the sentence appears not to have

issued from the jurors‘ reason. In this case, the prosecutor‘s argument created a danger

that the jury‘s death verdict was not reached through reason but instead as a result of an

overzealous desire to exact parental retribution.

I am aware that this court has held that retribution is a proper purpose for

imposing the death penalty. (People v. Zambrano (2007) 41 Cal.4th 1082, 1178,

overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) This

does not mean, however, that there should be no limits on the amount or kinds of passion

for retribution the prosecution is permitted to evoke. The combination of retribution as

an acceptable purpose and emotion as an appropriate factor, without limits, has the

potential to overwhelm reason.


On the subject of prejudice, what I have already said shows part of the reason the

prosecutor‘s erroneous use of the letter was not harmless. As the majority states, an

exacting standard of harmless error review applies: There must be no reasonable

possibility that the jury would have rendered a different penalty verdict absent the error, a

standard equivalent to the beyond a reasonable doubt standard of Chapman v. California

(1967) 386 U.S. 18. (People v. Wallace (2008) 44 Cal.4th 1032, 1092.) In my view, the

extreme emotional nature of the letter makes it reasonably possible that the improper

argument tipped the balance. The majority takes the position that the letter was not

―central‖ to the prosecutor‘ summation (maj. opn., ante, at p. 71). I respectfully disagree

with this conclusion and, to the contrary, believe the letter likely was the most memorable

part of the prosecutor‘s summation. The prosecutor was an experienced attorney and

used the letter as a very powerful strategy in a highly emotional case. It must have been

obvious to the prosecutor that his use of the letter to Genny was having a major impact on

the jury in light of the repetitive and impassioned nature of the defense objections to it.

The nature of Gonzales‘s penalty phase defense, in my view, reinforces this

conclusion. Gonzales wanted the jury to believe that Ivan was the actual killer and that

she was a minor participant. She also wanted the jury to believe that her responsibility

for failing to try to stop Ivan or get help for Genny was mitigated by battered woman

syndrome, her own history of abuse as a child, posttraumatic stress disorder, and

intoxication. She wanted the jury to find that, because of these factors, even though her

conduct still constituted first degree murder, life without parole would be an adequate

punishment. Without the improper argument, it is reasonably possible that the jury could

have accepted her contentions and concluded that she should receive life without

possibility of parole.

The majority states that the facts were so horrible that the improper influence of

the letter must have been of minor significance by comparison. (Maj. opn., ante, at

p. 72.) This may well be so with respect to Gonzales‘s guilt phase objectives, for the


evidence that Gonzales was guilty on one or another of the theories of first degree murder

presented by the prosecution was very powerful. At the penalty phase, however, matters

were different. The jury could have concluded that, despite Gonzales‘s guilt, it was

likely that Ivan was the actual killer or that Gonzales‘s culpability was lessened by the

factors she presented, or both. It could have found that, under these circumstances, life

without parole would be enough punishment. There is a reasonable possibility that this

would have happened had the prosecutor not read the letter. This may not be reasonably

probable because, for instance, there was evidence that Gonzales was dominant over

Ivan. It is still reasonably possible, which is the standard we must apply.

The majority also states that a life verdict was unlikely because ―the defense at the

penalty phase was hobbled by the fact that the adult family members asking the jury to

spare defendant‘s life were themselves complicit in Genny‘s endangerment.‖ (Maj. opn.,

ante, at p. 72.) Without any doubt, the family members asking the jury to spare

Gonzales‘s life were not ideal witnesses. This does not show beyond a reasonable doubt,

however, that the jury would not have been persuaded to impose life without parole

absent the improper argument. Her penalty phase defense had other components.

The majority states that Gonzales‘s mitigation evidence in general ―loses much of

its persuasive impact‖ because the murder resulted from terrible forms of child abuse.

(Maj. opn., ante, at p. 73.) The question, however, is not how persuasive we find the

mitigation evidence to be, but whether there is a reasonable possibility the jury would

have found it persuasive absent the improper appeal to passion. I do not believe we can

say with any confidence that there is not.

For example, the majority concludes that the evidence that Gonzales was herself

abused as a child ―paled in comparison‖ with the crime of which she was convicted (maj.

opn., ante, at p. 73), so it too has little persuasive impact. It is reasonably possible,

however, that the jury would have found otherwise absent the prosecutor‘s improper

appeal to passion. A major theme on which the prosecution relied, of course, was the


horror of child abuse. There is little doubt that the prosecution was keenly aware that this

theme could be turned against it in the penalty phase because Gonzales also was an

abused child. The prosecutor‘s recognition of the possible impact of this evidence is

apparent in his effort to undermine it by making the novel assertion that Gonzales‘s

history as an abused child somehow proved she was the actual killer. He said, ―‗[o]ne

other thing that proves she did it, and that‘s her child abuse history. She learned, she was

schooled in terror.… She has a Ph.D. in child abuse.‘‖ (Maj. opn., ante, at p. 73.)

The prosecutor evidently did not believe that the abuse Gonzales suffered as a

child was comparatively insignificant, for he went to considerable rhetorical lengths in

trying to neutralize its effect on the jury. In fact, his strategy was emphatically not to

minimize the abuse she suffered—this must have seemed to him unlikely to persuade—

but to magnify it and turn it against her. Absent the improper appeal to passion, the jury

might have been moved to mercy by the evidence of Gonzales‘s childhood suffering

while at the same time rejecting the prosecution‘s unusual contention that this suffering

increased her culpability.

In summary, I fear that holding that the prosecutor‘s improper argument was

harmless in this case establishes a new low bar for harmless error on the issue of

appealing to passion in penalty phase closing arguments. The law intends to make it

relatively difficult for the prosecution to show harmless error when the prosecutor

improperly appeals to emotion in the penalty phase of a capital trial. This is why the

legal standard of review requires a mere reasonable possibility of prejudice in order to

reverse a verdict of death. It is, in my opinion, essential for the court to ensure that the


rule has some teeth and will be enforced. Otherwise, overly zealous prosecutors may be

incentivized to push the limits without serious fear of reversal. I believe the death

penalty verdict should be reversed.


Wiseman, J.

Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the

Chief Justice pursuant to article VI, section 6, of the California Constitution.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gonzales

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: June 2, 2011

County: San Diego
Judge: Michael D. Wellington



Mark E. Cutler, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Annie Featherman Fraser, Deputy
Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark E. Cutler
Post Office Box 172
Cool, CA 95614-0172
(530) 885-7718

Annie Featherman Fraser
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2427

Automatic appeal from a judgment of death.

Opinion Information
Date:Docket Number:Category:Status:
Thu, 06/02/2011S072316Automatic Appealsubmitted/opinion due

1The People (Respondent)
Represented by Attorney General - San Diego Office
Scott C. Taylor, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2The People (Respondent)
Represented by Annie Featherman Fraser
Office of the Attorney General
P.O. Box 85266
San Diego, CA

3Gonzales, Veronica Utilia (Appellant)
Central California Women's Facility
Represented by Mark E. Cutler
Attorney at Law
P.O. Box 172
Cool, CA

Jul 20 1998Judgment of death
Aug 3 1998Filed certified copy of Judgment of Death Rendered
Aug 3 1998Penal Code sections 190.6 et seq. apply to this case
Dec 31 1998Record certified for completeness
Jul 15 2003Filed:
  appellant's application for appointment of counsel (IFP form).
Jul 16 2003Counsel appointment order filed
  appointing Mark E. Cutler to represent appellant for the direct appeal.
Jul 25 2003Received:
  notice from superior court that record was sent to appellant's counsel on 7-21-2003.
Jul 28 2003Date trial court delivered record to appellant's counsel
  (20,096 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.)
Jul 28 2003Appellant's opening brief letter sent, due:
  July 22, 2004.
Sep 17 2003Counsel's status report received (confidential)
  from atty Cutler.
Nov 12 2003Compensation awarded counsel
  Atty Cutler
Nov 17 2003Counsel's status report received (confidential)
  from atty Cutler.
Dec 23 2003Compensation awarded counsel
  Atty Cutler
Jan 14 2004Counsel's status report received (confidential)
  from atty Cutler.
Mar 16 2004Counsel's status report received (confidential)
  from atty Cutler.
Mar 16 2004Compensation awarded counsel
  Atty Cutler
Mar 30 2004Compensation awarded counsel
  Atty Cutler
May 3 2004Received copy of appellant's record correction motion
  Request for correction of transcripts on appeal. (27 pp.)
May 6 2004Compensation awarded counsel
  Atty Cutler
May 13 2004Counsel's status report received (confidential)
  from atty Cutler.
Jun 9 2004Compensation awarded counsel
  Atty Cutler
Jul 9 2004Request for extension of time filed
  to file appellant's opening brief. (1st request)
Jul 12 2004Extension of time granted
  to 9/20/2004 to file appellant's opening brief.
Jul 19 2004Counsel's status report received (confidential)
  from atty Cutler.
Aug 26 2004Compensation awarded counsel
  Atty Cutler
Sep 9 2004Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Sep 10 2004Counsel's status report received (confidential)
  from atty Cutler.
Sep 13 2004Extension of time granted
  to 11/19/2004 to file appellant's opening brief.
Sep 15 2004Compensation awarded counsel
  Atty Cutler
Nov 8 2004Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Nov 10 2004Counsel's status report received (confidential)
  from atty Cutler.
Nov 10 2004Extension of time granted
  to 1/18/2005 to file appellant's opening brief.
Dec 1 2004Compensation awarded counsel
  Atty Cutler
Jan 10 2005Counsel's status report received (confidential)
  from atty Cutler.
Jan 10 2005Request for extension of time filed
  to file appellant's opening brief. (4th request)
Jan 12 2005Extension of time granted
  to March 21, 2005 to file the appellant's opening brief.
Feb 28 2005Motion filed (AA)
  appellant's motion for modification and or reversal of portion of trial court's orders regarding correction of transcripts on appeal.
Mar 9 2005Counsel's status report received (confidential)
  from atty Cutler.
Mar 9 2005Request for extension of time filed
  to file appellant's opening brief. (5th request)
Mar 14 2005Extension of time granted
  to 5/20/2005 to file appellant's opening brief.
Mar 16 2005Compensation awarded counsel
  Atty Cutler
Apr 13 2005Compensation awarded counsel
  Atty Cutler
May 11 2005Motion denied
  Appellant's "Motion for Modification and/or Reversal of Portion of Trial Court's Orders Regarding Correction of Transcripts on Appeal," filed on February 28, 2005, is denied. (People v. Waidla (2000) 22 Cal.4th 690, 743.)
May 12 2005Request for extension of time filed
  to file AOB. (6th request)
May 16 2005Extension of time granted
  to 7-19-2005 to file AOB.
May 19 2005Counsel's status report received (confidential)
  from atty Cutler.
May 31 2005Record certified for accuracy
Jul 8 2005Request for extension of time filed
  to file AOB. (7th request)
Jul 11 2005Extension of time granted
  to September 19, 2005 to file appellant's opening brief.
Jul 11 2005Counsel's status report received (confidential)
  from atty Cutler.
Jul 25 2005Note:
  record arrived from superior court.
Sep 14 2005Request for extension of time filed
  to file appellant's opening brief. (8th request)
Sep 16 2005Extension of time granted
  to November 18, 2005 to file appellant's opening brief.
Sep 22 2005Counsel's status report received (confidential)
  from atty Cutler.
Nov 8 2005Request for extension of time filed
  to file appellant's opening brief. (9th request)
Nov 9 2005Counsel's status report received (confidential)
  from atty Cutler.
Nov 14 2005Extension of time granted
  to January 17, 2006 to file appellant's opening brief.
Jan 6 2006Counsel's status report received (confidential)
  from atty Cutler.
Jan 9 2006Request for extension of time filed
  to file appellant's opening brief. (10th request)
Jan 12 2006Extension of time granted
  to 3/17/2006 to file appellant's opening brief.
Mar 3 2006Letter sent to:
  superior court advising portions of clerk's transcript being returned to correct deficiencies, record is to be corrected and returned on or before March 22, 2006.
Mar 7 2006Letter sent to:
  superior court advising more deficiciences found in record, other portions returned for corection and corrected record to be returned no later than March 22, 2006.
Mar 7 2006Counsel's status report received (confidential)
  from atty Cutler.
Mar 14 2006Request for extension of time filed
  to file appellant's opening brief. (11th request)
Mar 16 2006Extension of time granted
  to May 16, 2006 to file appellant's opening brief.
May 5 2006Counsel's status report received (confidential)
  from atty Cutler.
May 5 2006Request for extension of time filed
  to file appellant's opening brief. (12th request)
May 9 2006Extension of time granted
  to July 17, 2006 to file appellant's opening brief.
Jul 18 2006Request for extension of time filed
  to file appellant's opening brief. (13th request)
Jul 24 2006Extension of time granted
  to September 15, 2006 to file appellant's opening brief.
Jul 28 2006Record on appeal filed
  clerk's transcript 55 volumes (11395 pp.) and reporter's transcript 109 volumes (12073 pp.), including material under seal; ASCII disks. Clerk's transcript includes 3651 pp. of juror questionnaires.
Jul 28 2006Letter sent to:
  counsel advising record on appeal, certified for accuracy, filed this date.
Sep 20 2006Counsel's status report received (confidential)
  from CAP on behalf of attorney Mark Cutler.
Sep 22 2006Request for extension of time filed
  to file appellant's opening brief. (14th request)
Sep 26 2006Extension of time granted
  to November 14, 2006 to file appellant's opening brief.
Nov 17 2006Request for extension of time filed
  to file appellant's opening brief. (15th request)
Nov 28 2006Extension of time granted
  to January 16, 2007 to file the appellant's opening brief.
Dec 1 2006Counsel's status report received (confidential)
  from atty Cutler.
Jan 16 2007Request for extension of time filed
  to file appellant's opening brief. (16th request)
Jan 17 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief is extended to and including March 13, 2007.
Jan 30 2007Counsel's status report received (confidential)
  from atty Cutler.
Mar 6 2007Request for extension of time filed
  to file appellant's opening brief. (17th request)
Mar 9 2007Extension of time granted
  Good cause appearing, and based upon counsel Mark E. Cutler's representation that he anticipates filing the appellant's opening brief by late summer 2007, counsel's request for an extension of time in which to file that brief is granted to May 14, 2007. After that date, only two further extensions totaling about 120 additional days are contemplated.
Apr 3 2007Counsel's status report received (confidential)
  from atty Cutler.
May 8 2007Request for extension of time filed
  to file appellant's opening brief. (18th request)
May 10 2007Extension of time granted
  to July 13, 2007 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon counsel Mark E. Cutler's representation that he anticipates filing that brief by late summer 2007.
Jun 14 2007Counsel's status report received (confidential)
  from atty Cutler.
Jul 5 2007Request for extension of time filed
  to file appellant's opening brief. (19th request)
Jul 10 2007Extension of time granted
  Good cause appearing, and based upon counsel Mark Cutler's prior representation that he anticipated filing the appellant's opening brief by late summer, counsel's request for an extension of time in which to file that brief is granted to September 11, 2007. After that date, no further extension is contemplated.
Jul 31 2007Counsel's status report received (confidential)
  from atty Cutler.
Aug 15 2007Compensation awarded counsel
  Atty Cutler
Aug 31 2007Request for extension of time filed
  to file appellant's opening brief. (20th request)
Sep 5 2007Extension of time granted
  Good cause appearing, and based upon counsel Mark E. Cutler's representation that he anticipates filing the appellant's opening brief by October 11, 2007, counsel's request for an extension of time in which to file that brief is granted to October 11, 2007. After that date, no further extension will be granted.
Oct 4 2007Application to file over-length brief filed
  by atty Cutler.
Oct 5 2007Respondent's brief letter sent; due:
  August 18, 2008. (Note: error in calculation; due date is actually August 15, 2008; see letter sent to counsel on January 11, 2008.)
Oct 5 2007Order filed
  Appellant's "Request for Permission to File Oversized Appellant's Opening Brief" is granted.
Oct 5 2007Appellant's opening brief filed
  (135,300 words; 477pp)
Nov 7 2007Filed:
  Addendum to Appellant's Opening Brief (the missing pp. 51-74 which were inadvertently omitted from original filing)
Nov 15 2007Compensation awarded counsel
  Atty Cutler
Jan 11 2008Letter sent to:
  respondent regarding recalculated due date for respondent's brief: respondent's brief is due on or before August 15, 2008.
Jul 7 2008Compensation awarded counsel
  Atty Cutler
Aug 7 2008Request for extension of time filed (AA)
  to file respondent's brief. (1st request)
Aug 12 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Annie Featherman Fraser's representation that she anticipates filing the respondent's brief by February 15, 2009, counsel's request for an extension of time in which to file that brief is granted to October 15, 2008. After that date, only two further extensions totaling about 120 additional days are contemplated.
Oct 7 2008Request for extension of time filed (AA)
  to file respondent's brief.(2nd request)
Oct 9 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Annie Featherman Fraser's representation that she anticipates filing the respondent's brief by February 15, 2009, counsel's request for an extension of time in which to file that brief is granted to December 15, 2008. After that date, only one further extension totaling about 60 additional days is contemplated.
Dec 9 2008Request for extension of time filed (AA)
  to file respondent's brief. (3rd request)
Dec 15 2008Extension of time granted
  Good cause appearing, and based upon Deputy Attorney General Annie Featherman Fraser's representation that she anticipates filing the respondent's brief by February 15, 2009, counsel's request for an extension of time in which to file that brief is granted to February 17, 2009. After that date, no further extension is contemplated.
Feb 6 2009Respondent's brief filed
  (77,288 words; 242 pages)
Feb 10 2009Note:
  appellant's reply brief is due April 7, 2009. (see California Rules of Court, rule 8.630(c)(1)(D))
Mar 25 2009Compensation awarded counsel
  Atty Cutler
Apr 9 2009Request for extension of time filed
  to file appellant's reply brief. (1st request)
Apr 17 2009Compensation awarded counsel
  Atty Cutler
Apr 13 2009Extension of time granted
  Good cause appearing, and based upon counsel Mark E. Cutler's representation that he anticipates filing the appellant's reply brief by October 2009, counsel's request for an extension of time in which to file that brief is granted to June 8, 2009. After that date, only two further extensions totaling about 120 additional days are contemplated.
May 27 2009Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Jun 3 2009Extension of time granted
  Good cause appearing, and based upon counsel Mark E. Cutler's representation that he anticipates filing the appellant's reply brief by October 2009, counsel's request for an extension of time in which to file that brief is granted to August 7, 2009. After that date, only one further extension totaling about 60 additional days is contemplated.
Jul 22 2009Compensation awarded counsel
  Atty Cutler
Aug 4 2009Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Aug 10 2009Extension of time granted
  Good cause appearing, and based upon counsel Mark E. Cutler's representation that he anticipates filing the appellant's reply brief by October 6, 2009, counsel's request for an extension of time in which to file that brief is granted to October 6, 2009. After that date, no further extension is contemplated.
Aug 14 2009Filed:
  by appellant, supplemental declaration of service by mail, for appellant counsel's third extension of time to file appellant's reply brief.
Sep 14 2009Application to file over-length brief filed
  by appellant, "Request for Permission to File Oversized Appellant's Reply Brief"
Sep 14 2009Received:
  appellant's reply brief. (49,562 words; 200 pp.)
Sep 23 2009Application to file over-length brief granted
  Appellant's "Request for Permission to File Oversized Appellant's Reply Brief" is granted.
Sep 23 2009Appellant's reply brief filed
Appellant: Gonzales, Veronica UtiliaAttorney: Mark E. Cutler   (49,562 words; 200 pp.)
Nov 19 2009Compensation awarded counsel
  Atty Cutler
Jul 21 2010Compensation awarded counsel
  Atty Cutler
Aug 3 2010Exhibit(s) lodged
  People's exhibits, nos. 75, 76, 78 and 79.
Jan 5 2011Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 7, 2011, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Feb 8 2011Case ordered on calendar
  to be argued Tuesday, March 8, 2011, at 1:30 p.m., in San Francisco
Feb 8 2011Justice pro tempore assigned
  Hon. Rebecca A. Wiseman Fifth Appellate District
Feb 15 2011Filed:
  appellant's focus issued letter, dated February 13, 2011.
Feb 15 2011Received:
  appearance sheet from attorney Mark E. Cutler indicating 45 minutes for oral argument for appellant.
Feb 16 2011Filed:
  respondent's focus issue letter, dated February 11, 2011. (with attached declaration of service)
Feb 22 2011Received:
  appearance sheet from Deputy Attorney General Annie Featherman Fraser indicating 30 minutes for oral argument for respondent.
Mar 1 2011Received:
  respondent's additional authorities letter, dated February 25, 2011.
Mar 8 2011Cause argued and submitted
Mar 16 2011Compensation awarded counsel
  Atty Cutler
Mar 23 2011Compensation awarded counsel
  Atty Cutler

Oct 5 2007Appellant's opening brief filed
Feb 6 2009Respondent's brief filed
Sep 23 2009Appellant's reply brief filed
Appellant: Gonzales, Veronica UtiliaAttorney: Mark E. Cutler  
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website