Supreme Court of California Justia
Docket No. S122123

People v. Rodriguez

Filed 2/20/14



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S122123

v.

ANGELINA RODRIGUEZ,

Los Angeles County

Defendant and Appellant.

Super. Ct. No. BA213120



A jury convicted defendant Angelina Rodriguez of the first degree murder

of her husband, Jose Francisco Rodriguez, under the special circumstances of

murder by administering poison and murder for financial gain, and of one count of

attempting to dissuade a witness. (Pen. Code, §§ 136.1, subd. (a)(2), 187, 190.2,

subd. (a)(1), (19).)1 The jury was unable to reach a verdict on a charge of

soliciting murder, and the court declared a mistrial on that count. After a penalty

trial, at which the prosecution presented evidence that defendant had murdered her

infant daughter several years previously, the jury returned a verdict of death. The

court denied the automatic motion to modify the verdict and imposed that

sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.


1

All further statutory references are to the Penal Code unless otherwise

indicated.


I. THE FACTS

A. Guilt Phase

1. Overview

The evidence showed that in September 2000, on her second attempt,

defendant fatally poisoned her husband, Jose Francisco Rodriguez, by giving him

drinks containing oleander and antifreeze in order to collect on a life insurance

policy she had insisted the two take out a few months earlier. Previously, she had

tried to kill him by loosening natural gas valves in their garage. From her jail cell

while awaiting trial for the murder, she attempted to dissuade a witness from

testifying against her. Evidence was also presented that later she solicited that

witness’s murder.

2. The Events Leading to the Victim’s Death

Defendant met her future husband, known as “Frank,” in February 2000,

while they were employed at Angel Gate Academy (Academy) in San Luis

Obispo.2 The Academy was a partnership program of the California National

Guard and the Los Angeles Unified School District which hosted district students

at a camp for a month. Defendant described the Academy to police investigators

as a “four week boot type camp for troubled youth.”

Frank and defendant were married on April 8. Shortly after the wedding,

Frank got a job teaching in the Los Angeles Unified School District, and they

moved to Montebello. Defendant’s then nine-year-old daughter by a previous

marriage, Autumn F. (Autumn), lived with them.


2

Because defendant and the victim have the same last name, we will refer to

the victim as Frank to avoid confusion. Unless otherwise indicated, all dates are in
the year 2000.

2

In July, defendant and Frank took out a $250,000 life insurance policy on

Frank’s life from the Midland National Life Insurance Company. Defendant was

named the primary beneficiary. Mickey Marracino, the agent who sold them the

policy, testified that defendant had written to him in response to a direct mailing

advertisement. He then called her to make an appointment to see them.

Marracino met the couple at their home on July 15. Marracino heard Frank ask

defendant “why she felt that they needed the insurance” in light of the fact that

they were already covered at work and through the National Guard. Defendant

explained to Frank the benefits of life insurance and why she felt they needed it.

Frank still hesitated, but then told Marracino to “write it up.” Frank took the

necessary physical examination on July 18, and the policy was approved on July

26. Frank and defendant also discussed insuring defendant’s life for $50,000, but

that policy was never finalized.

Palmira Gorham, a friend of defendant’s during this time, testified that after

the marriage, defendant often visited her in Paso Robles without Frank and

expressed unhappiness with her marriage. Sometime around mid-June or mid-

July, Gorham and defendant had a conversation at Gorham’s home in which

defendant “was telling me how unhappy she was with Frank.” Gorham said

jokingly, “Why don’t you divorce this one like you divorced all your other ones?”

Defendant responded, “No, this one has got [a] life insurance policy,” and “[t]hat

might be worth my time to do that.” She said something like, “If I were to kill

him, at least I’d end up with a little bit of money.” Later, Gorham’s mother joined

the conversation, and the two told defendant a story about a woman who had tried

to kill her husband by giving him “oleander tea.” Gorham did not take the

conversation seriously.

A day or so after this conversation, Gorham and her boyfriend spoke with

defendant about a dog that had bitten Gorham’s son and Gorham’s frustration with

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the police response. At one point, the boyfriend commented that “we could just

soak some hot dogs in antifreeze and throw it over the fence.” When defendant

asked why, Gorham told her “that we had seen something on TV that antifreeze

has like kind of a sweet taste and it’s really colorful, so it’s like bright pink or

green, . . . and that children and animals, they would drink it without thinking

twice.”

A couple of weeks later, when defendant was at her home in Montebello,

Gorham spoke with her on the telephone. Gorham heard a blender running in the

background and asked what defendant was doing. Defendant responded that “she

was making Frank a special milkshake.” In the past, defendant had told Gorham

that Frank liked to have milkshakes when he was ill. So Gorham asked defendant

if Frank was sick. She responded, “Not yet.”

Loran Moranes was Gorham’s nephew, although he was older than she. He

got out of jail on July 17 and began a relationship with defendant that became

sexual on August 26. Defendant visited him regularly in Paso Robles, beginning

while Frank was still alive. Moranes testified that about a week before Frank died,

defendant was with him in Paso Robles. She told Moranes that she had “left some

kind of gas on in the garage” in Montebello so that Frank “would die.” She said

that “either there would be some kind of explosion in the house or he would go in

there and pass out.”

Because he did not want to get involved, Moranes did not tell investigators

about this conversation until July 2001, long after defendant’s arrest. When the

investigators heard of this, they checked records from Southern California Gas

Company, the company that serviced defendant’s home. The records showed that

on September 3, the Sunday of Labor Day weekend, Frank had reported a gas leak

at his and defendant’s Montebello home. Luis Aguilar, a company service

technician, responded to the report and spoke with Frank. Aguilar found two gas

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leaks in the garage, one behind the clothes dryer and one on the water heater. The

valve fitting on the dryer was “very loose,” which would not have happened on its

own.

On Tuesday, September 5, the day after Labor Day, Frank traveled by bus

to Angel Gate Academy as chaperone for students from his school who were to

participate in the program there. After dropping the students off at the Academy,

Frank returned home the same day. He had been a late addition to the group of

teachers who accompanied the students, and his name was not placed on the list of

teachers who were coming that was given to employees at the Academy.

On Thursday, September 7, Frank, accompanied by defendant, went to the

emergency room at Kaiser Hospital in Baldwin Park complaining of vomiting and

diarrhea. The treating physician diagnosed the cause as food poisoning.

Defendant voiced no suspicion that Frank had been intentionally poisoned. The

doctor discharged Frank that afternoon. When he did so, he wrote on a standard

instruction sheet that Frank should drink a lot of fluids and, specifically, “drink

Gatorade as a re-hydration.” Defendant signed the instructions, indicating that she

had received them.

3. The Victim’s Death and Aftermath

At 3:19 a.m. on Saturday, September 9, Montebello Police Officer Stephen

Sharpe, responding to a call from defendant’s home at 837 Marconi Street, found

Frank’s body lying facedown on the carpet in the bedroom. He observed blood on

the carpet that apparently came from the victim’s nose but could detect no

apparent cause of death. Defendant identified the man as her husband. Officer

Sharpe testified that defendant’s crying “seemed rehearsed or kind of forced”;

“[a]lthough it was audible, the crying noise, there was a lack of tears, and as soon

as I would talk to her, ask her a question, she would immediately kind of snap out

5

of it and answer the questions real quick, and in my experience . . . usually

someone who just lost their husband, they’re very difficult to speak with and

communicate to.”

The initial autopsy did not reveal the cause of death. The body contained

no sign of trauma. Frank was 41 years old when he died and had been in generally

good health.

At 10:17 a.m., the morning Frank died, defendant called Marracino, the life

insurance agent, and left a message for him to call her back. When he returned her

call a short time later, she reported her husband’s death and inquired about getting

the $250,000 payment on the policy on Frank’s life. Marracino informed her that

the company would need an official death certificate showing the cause of death.

He also explained that when the death occurs during the first two years after the

policy was issued, the company will investigate the claim to determine if it is

legitimate. During the conversation, Marracino noticed that defendant spoke

without emotion. “It was sort of matter of fact the way she was talking to me and

explaining everything. She didn’t cry, she didn’t hesitate in any way, she didn’t

lose any train of thought . . . .”

Marracino reported Frank’s death to the insurance company the same day.

He had several other conversations with defendant over the next few weeks in

which she repeatedly asked when she would get paid. He kept advising her the

company needed a cause of death.

Rebecca Perkins, Frank’s sister, who lived in Florida, learned of Frank’s

death from her mother, Janet Baker. Around noon the day of his death (9:00 a.m.

California time), she telephoned defendant and asked what had happened.

Defendant responded, “He drank too much.” Perkins was surprised because Frank

did not drink alcohol. Defendant went on to say that Frank had been sick on

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Wednesday and Thursday, and she took him to the hospital on Friday. She said

Frank had died of a “stomach infection.”

A short time after this conversation, Perkins called defendant again. This

time, defendant told her that “the people at the Angel Gate Academy gave him

cookies and Gatorade and that killed him.” She also said “that she thought it was

the people at Angel Gate this time who had killed him, and months ago in June

that it was the students at his middle school that had tried to poison him.”

Regarding why someone at Angel Gate Academy would want to kill Frank,

defendant said “that she was terminated and she left on a bad note and therefore

they didn’t like Frank and so they wanted to kill him.” Perkins testified that

during both of these conversations, defendant “had no emotion.”

Frank’s other sister, Shirley Coers, spoke with defendant the day after his

death. Defendant said she “wanted to cremate him and sprinkle his ashes on a

beach that she said was their favorite place to go.” Later defendant told her that

Frank might have a military burial. In another conversation, defendant told Coers

that an officer at Angel Gate Academy had killed Frank when Frank had gone

there for a meeting. She said the officer “put some kind of poison in his cookies

and Gatorade.” Coers asked defendant how someone could poison another person.

Defendant said there are many ways; for example, one can make a tea with

oleander. On Tuesday, September 19, Coers drove with defendant and others in a

limousine to Frank’s funeral. On the way, defendant pointed at some bushes on

the side of the road and said, “That’s oleander.”

Elaine Nash, an employee with the Midland National Life Insurance

Company, spoke with defendant several times, beginning on September 28,

regarding defendant’s efforts to collect the insurance money. Nash told defendant

the company needed a death certificate stating a cause of death, and it would take

about four to six weeks to process the claim after they received the certificate. She

7

also explained that the company would conduct its own investigation because the

death had occurred within two years of issuing the policy. Defendant told her the

autopsy was being done but the toxicology had not been completed. Later,

defendant asked Nash to fax her the claim forms. Nash said she could not do so in

the case of a contested claim. Nash also declined defendant’s request to verify to a

real estate agent that the funds would be available so she could buy a house. The

company never paid the insurance benefits.

4. The Investigation

Montebello Police Detective Gregory Wilsey was the original investigator

into Frank’s death. On September 11, the Monday after Frank died, he received a

telephone call from defendant asking about the coroner’s office and how it would

dispose of the body. He told her that the coroner had not determined the cause of

death, and any information they could receive regarding what Frank might have

ingested would help to narrow the possibilities. She told him that she believed

someone at Angel Gate Academy in San Luis Obispo might have poisoned him.

She said that “earlier that year that they had . . . blown a whistle on somebody who

had committed — suspected of child abuse on one of the students or children up

there, and because of that some people got fired, some people got reassigned and

she felt that there was some animosity towards her husband over that.” She said

Frank had gone to the Academy some days before his death to chaperone

disadvantaged youths who were going there. During this conversation, Detective

Wilsey was struck by defendant’s lack of emotion.

On September 14, the case was referred to the Los Angeles County

Sheriff’s Department and assigned to Detective Brian Steinwand and Sergeant Joe

Holmes. Detective Steinwand testified that defendant had been a suspect in

Frank’s death from the beginning, but they did not tell her that. They pretended to

8

believe her story that someone at Angel Gate Academy had poisoned Frank in

order to try to get her to talk and provide information. In fact, they never

suspected anyone at the Academy of poisoning Frank. Beginning on September

14, the investigators had numerous conversations with defendant that they

surreptitiously tape-recorded. Relevant portions of several of the conversations

were played to the jury.

Defendant told the investigators she believed a man at Angel Gate

Academy named Charles “Chad” Holloway had poisoned Frank. She said that she

and Frank had blown the whistle on Holloway for inappropriate behavior with

some of the students at the Academy. She said that on September 5, Frank had

gone to the Academy as a chaperone. When he returned home, he told her that

someone there had given him Gatorade and cookies. Defendant also talked about

the life insurance policy and said that the company would not pay the claim until it

had been advised of the cause of death. She asked if the investigators could help

get the coroner’s office to do what was necessary to determine a cause of death so

she could receive the money.

On September 26, Janet Baker, Frank’s mother, informed Sergeant Holmes

that defendant had said something about oleander. This was the first mention of

oleander as a possible poison in the case. Detective Steinwand informed the

coroner’s office of the possibility of oleander poisoning. However, no test for

oleander was conducted at that time, apparently because very few laboratories can

perform such a test. A large oleander bush, easily accessible to defendant, grew

over the fence in the backyard of her Montebello home.

During this time, defendant frequently asked the investigators about efforts

to determine a cause of death because she wanted to collect the insurance money.

The investigators explained that the coroner’s office had been unable to determine

the cause of death, and that they needed to know what to look for as a possible

9

poison. As a ruse, they stressed that it would be very useful to know what the

poison might have been.

On October 19, before 9:00 a.m., while driving, Sergeant Holmes received

a call on his cell phone from defendant’s cell phone. Defendant told him she had

just received a telephone call. (Telephone records later showed that, in fact,

defendant had not received any incoming telephone call on her cell phone that

morning, before she called Sergeant Holmes.) Sergeant Holmes told her he would

call her back. He did so when he returned to his office so he could record the

conversation. Defendant told him that shortly after 8:00 a.m. that morning, she

had received a telephone call while she was driving from a man who refused to

give his name. She said the “caller ID” was blocked. The man told her he had

talked with Holloway. Holloway had told him, “they can’t pin me.” The man also

said, “Ask them about antifreeze.” Defendant did not know how the man had

gotten her cell phone number.

This was the investigators’ first information that antifreeze might have been

involved. After this conversation, Sergeant Holmes asked the coroner’s office to

check for antifreeze as a possible poison.

Dan Anderson, a toxicologist with the Los Angeles County coroner’s

office, testified that the results of the initial tests on Frank’s body had been

negative except for the presence of Vicodin. That created a problem, because

when checking for the presence of drugs, one must look for something specific.

There is no general toxicology test for everything. If a test for the most common

drugs is negative, trying to determine what might be present is like “looking for a

needle in a haystack.” For example, one must look specifically for ethylene

glycol, the main chemical component of automotive antifreeze, in order to find it.

After defendant mentioned antifreeze to the investigators, specimens from

Frank’s body were examined for ethylene glycol. All samples showed the

10

presence of a fatal amount of that chemical. Later testing also showed the

presence of oleander.

Dr. Richard Clark, a toxicologist with the poison center at the University of

California, San Diego, testified that ethylene glycol is poisonous but tends to taste

sweet and can easily be mixed with Gatorade. Oleander, commonly found along

Southern California freeways, is also poisonous. It can be served as a tea and

mixed with another liquid to disguise its bitter taste.

After examining documents in the case, Dr. Clark opined that Frank had

died of ethylene glycol poisoning. Specimens from his body contained five and

six times as much of the chemical as is needed to kill. Frank would have had to

receive the fatal dose within 24 hours before his death and “most likely” within six

to seven hours. After reviewing records from Frank’s September 7 visit to the

hospital, Dr. Clark opined that Frank could not have had in his system at that time

the ethylene glycol that his body later contained. Frank’s symptoms at that visit

were consistent with oleander poisoning. Dr. Clark testified it is “hard to say”

what role the oleander played in Frank’s death, although it could have “played a

part.” Frank must have last ingested oleander within 24 hours before his death.

Dr. Ogbonna Chinwah, who had performed the original inconclusive

autopsy, testified that he later reexamined the body and found evidence of

ethylene glycol in the kidneys. In his opinion, Frank died of ethylene glycol and

oleander poisoning.

On December 12, Detective Steinwand told defendant that he was going to

question Holloway about the case. He did in fact speak with Holloway, but only

to obtain his cooperation and not as a suspect. He arranged for Holloway to

telephone defendant with the investigators surreptitiously listening. The next day,

December 13, Holloway called her. Acting pursuant to instructions, Holloway

11

asked her why she had told the “police that I poisoned Frank with antifreeze.”

Defendant replied that he needed to talk with the investigators.

About one minute after this conversation ended, Sergeant Holmes received

a “911 page” (meaning important) from defendant. He called her back. She told

him she had just received a call from Holloway in which he said, “Well, they’ll

never be able to — to catch me anyway,” and “You better watch you [sic] back.”

In fact, Holloway had said nothing like that to her. Recordings of both December

13 conversations were played to the jury.

In December, the investigators informed defendant of the results of the

antifreeze testing. In various conversations, defendant asked the status of the

investigation regarding Holloway. As a ruse, the investigators told her that one

weakness in their case against Holloway was the lack of evidence that Holloway

had known in advance that Frank would be coming to Angel Gate Academy on

September 5. Poisoning requires advance planning, they explained, and Holloway

could defend against a poisoning charge by claiming he had not known Frank

would be there that day. They stressed that it was important for them to obtain

evidence that Holloway had received information in advance that Frank would be

there.

On January 19, 2001, Sergeant Holmes told defendant that oleander had

been found in Frank’s body, and that the cause of death and death certificate

would be ready in a few weeks. Defendant asked if they had yet received any

evidence that Holloway had known in advance that Frank was coming to Angel

Gate Academy on September 5. He told her they had not. She told him that when

she worked “at admin,” she always received a fax saying who was coming.

On February 5, 2001, Sergeant Holmes received an anonymous fax

addressed to him at the homicide bureau. It contained no cover sheet and

indicated it had been sent from Staples Store No. 702. On the first page was

12

written, “Urgent. Detective Holmes, I mailed this to you. Why is Chad still free?

Thought maybe you did not get it. Here it is again.” The name “Chad” obviously

referred to Holloway. The next two pages appeared to be a printed document

concerning a faculty orientation at Angel Gate Academy. On the second of these

pages was the handwritten name “F. Rodriguez.”

Later, Sergeant Holmes received in the mail at work an envelope containing

a copy of the same document he had received by fax on February 5, 2001, and a

note stating, “I found this in second platoon’s locker, in Sergeant Holloway’s

papers. I figured this is how he knew Sergeant Rodriguez was coming to SLO

[San Luis Obispo]. I hope this helps fry the bastard.”

On February 6, 2001, the investigators drove to Paso Robles, where

defendant had moved after Frank’s death, intending to arrest her. While driving,

they received a page from her. Sergeant Holmes called her back. He told her

about the fax he had received and said it was important for them to know who had

sent it. She said she knew nothing about it. She also asked whether they were

going to arrest Holloway. She added that she would like to be present when they

did, “to see the expression on his face.”

After defendant’s arrest, the investigators searched her Paso Robles home

pursuant to a search warrant. They found in her purse a piece of paper containing

numbers and computations, apparently calculations regarding how she would

spend the insurance money plus accumulated interest that she expected to receive,

and a napkin on which was written the sheriff’s fax number, the number to which

the anonymous fax received by Sergeant Holmes had been sent.

The purse also contained a fax confirmation sheet from Staples Store No.

702 and the original of the fax Sergeant Holmes had received on February 5, 2001.

On this original copy, however, the handwritten name “F. Rodriguez” was in red.

13

A forensic document examiner testified that this name was written in original red

ink and was not a copy from some other document.

The Los Angeles school administrator who coordinated the Angel Gate

Academy program testified that normally the school district would not provide the

Academy with the names of teachers who merely accompanied the students to San

Luis Obispo and returned the same day. She said the printed document in the fax

Sergeant Holmes had received concerned a session that started on September 5. It

contained the names of the teachers who would stay there but not of those who

just rode the bus. The printed document would not normally contain a handwritten

name like the one on the fax.

5. Defendant’s Arrest and Later Events

Detective Steinwand and Sergeant Holmes arrested defendant for Frank’s

murder on February 7, 2001.

Evidence, including a tape-recorded telephone call that defendant made to

Gorham on March 27, 2001, showed that, while in jail awaiting trial, defendant

tried to dissuade Gorham from testifying against her. In the recorded

conversation, defendant told Gorham that, based on what Gorham had told the

investigators, she could be considered an accomplice in the case. She suggested

that Gorham might be arrested if she did not change her story. Gorham responded

that if she changed her story, “isn’t that just gonna make it look worse?”

Defendant said that people “retract it all the time.” She said Gorham could say she

had “found me with Conrad” (Gorham’s boyfriend). She added, “That would be

enough for you to snap.” She also said that “this is getting bigger than anybody

can imagine, and it doesn’t need to be. Do you see what I’m saying?” She

reiterated that Gorham “knew what I was doing, and you didn’t stop me.” When

14

Gorham noted that she had not been arrested, defendant said, “They’re still

investigating,” and “They’re still asking a lot of people questions.”

Other evidence showed that in May 2002, while still in jail awaiting trial,

defendant tried to solicit fellow inmate Gwendolyn Hall to arrange Gorham’s

murder when Hall was released from jail. Defendant first offered to pay $20,000

for Gorham’s murder then increased the offer to $30,000.

6. Defense Evidence

Defendant cross-examined prosecution witnesses and, through stipulation,

presented evidence regarding telephone calls between defendant’s home and

Gorham’s home during the Labor Day weekend of 2000. The apparent purpose of

the stipulations was to impeach parts of Loran Moranes’s testimony.

B. Penalty Phase

1. Prosecution Evidence

The prosecution presented evidence that defendant murdered her infant

daughter in 1993 and additional evidence that she solicited Gorham’s murder.

a. Death of Defendant’s Daughter

On September 18, 1993, defendant’s 13-month-old daughter Alicia F.

(Autumn’s younger sister) choked to death on a pacifier manufactured by the

Gerber Products Company (Gerber) in her crib in the family’s home in Lompoc.

Defendant’s husband at the time, Thomas F. (Thomas), Alicia’s father, was on a

business trip, and defendant was the only adult in the house when Alicia died.

Santa Barbara County Firefighter David Mandeville was the first to respond

to an emergency call at defendant’s home just before noon that day. When he

arrived, defendant was waiting for him outside. Mandeville found this unusual

because normally regarding calls “where a child or infant is choking, the parents

are with the child.” Alicia was in her crib not responding. He found a piece of

15

plastic in the baby’s throat and, with an effort, was able to “pop it out.” The

plastic was the rubber nipple part of a pacifier. Mandeville unsuccessfully applied

cardiopulmonary resuscitation to try to revive the baby. He turned the baby over

to paramedics as soon as they arrived.

Deputy Sheriff Ralph Ginter responded shortly after Mandeville. He found

the plastic backing of the pacifier in the crib and the rubber nipple on the floor.

He accompanied defendant to the hospital. After defendant was told that her baby

had died, she asked to obtain the pacifier backing, saying “that she wanted to keep

it, that the manufacturer or company that she purchased it from is going to pay,

and she didn’t want this to happen to another child.” Deputy Ginter wrote in his

report at the time that defendant was “adamant” about wanting to obtain the

pacifier backing. He released it to her at the hospital.

Dr. Wallace Carroll, the pathologist who presided over the autopsy,

testified that Alicia died of “asphyxiation due to airway obstruction,” that is, she

choked to death. Alicia had two teeth — the two lower front teeth.

Two months before the baby died, defendant had insured the baby’s life for

$50,000, and named herself as the primary beneficiary. Defendant did not name

Thomas as a beneficiary and did not tell him about the policy until after the baby

had died. On October 22, 1993, the insurance company paid the $50,000, plus

interest.

Thomas testified that in late 1992 or early 1993, while vacationing in

Michigan, he and defendant were eating in a restaurant with their daughters.

Another customer noticed the pacifier in Alicia’s mouth and “said that she wanted

to let us know that she was pretty sure that that pacifier was part of a recall.” In

fact, in March 1993, Gerber had voluntarily recalled the pacifier on which Alicia

choked based on five consumer reports that it had separated into three pieces.

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Shortly after Alicia died, Thomas and defendant consulted a local attorney

about suing Gerber. Ultimately, they retained Attorney Barry Novak to represent

them. Novak filed a lawsuit on their behalf against Gerber for Alicia’s wrongful

death due to the failure of the company’s pacifier. He obtained the actual pacifier,

which was in two pieces. Novak sent both pieces to Dr. Wolfgang Knauss, a

professor at the California Institute of Technology (Caltech), for examination.

Dissatisfied with Dr. Knauss’s report, he next sent the pieces to Dr. Gary Hamed,

a professor at The University of Akron, for a second opinion. The defendant in

the lawsuit, Gerber, never learned of Dr. Knauss’s opinion.

In March 1996, after defendant and Thomas had divorced, Gerber settled

the lawsuit by paying $710,000. Defendant received 60 percent and Thomas 40

percent of what remained after deducting Novak’s fee and expenses. Defendant

received more than Thomas because she had been present at Alicia’s death and

suffered emotional trauma.

When Detective Steinwand searched defendant’s home after her arrest, he

found a copy of Dr. Knauss’s report containing the results of his examination of

the pacifier. As a result of this discovery, Detective Steinwand investigated

further into the circumstances of Alicia’s death.

Dr. Knauss testified as an expert regarding the “failure and fracture of

polymers, which includes rubbers.” In 1994, Barry Novak asked him to examine

the two pieces. He did so and prepared a report containing his findings and

opinion. At trial, Dr. Knauss described the two pieces he examined. “A pacifier is

typically made up of what one . . . calls the shield, which is the hard part that stays

in front of the mouth. Then something some people refer to as the baglet or the

nipple, which is in the baby’s mouth, and the nipple is characteristically out of a

natural clear looking rubber, and in this case the nipple part had broken off away

from the hard part, the shield, close to the shield.” Specifically, the separated

17

nipple had “broken off or torn off” from part of the nipple that remained attached

to the shield. The distance from the shield to the point of the rupture, where the

separated nipple had torn away, was short, approximately two or three millimeters.

In Dr. Knauss’s opinion, the fracture he observed between the two pieces

could not have been caused either by a baby chewing through the pacifier or a

baby’s repeated sucking action. He based this opinion on the nature and pattern of

the tear, the amount of force necessary to cause it, and the fact the tear was near

the shield rather than on some part of the nipple a baby would actually touch.

Based on his visual and microscopic examination of the pacifier, he believed that

“some external trauma or tool was responsible for failing this nipple.” One

possibility was “something rolling over this, some external agent that caused large

force in that region, that would be responsible for this kind of complex fracture

pattern.” He said, “it might happen when a chair or some hard object rolls over

the pacifier like this. That might be the cause.” A tool such as pliers could also

have caused the tear.

Dr. Knauss was aware that Dr. Hamed believed the nipple might have had

an initial cut that a baby’s normal use could have exacerbated, causing the

rubber’s complete separation. Dr. Knauss believed this was not possible due to

the large amount of force that would have been needed to cause the separation. In

his opinion, “the ultimate failure as it now appears and documented in these

photographs is not consistent with that scenario.”

The prosecution presented portions of defendant’s deposition testimony in

the lawsuit against Gerber. She testified that she had checked the pacifier when

she first received it to “ma[k]e sure there’s no cracks or evidence of wearing.”

About once a week she tested the pacifier’s bulb by pulling on it.

18

b. Solicitation of Murder While in Jail

The prosecution played for the jury tapes of jail conversations between

inmate Gwendolyn Hall and defendant on May 10 and 11, 2002, that were

recorded with Hall’s cooperation, in which defendant solicited Gorham’s murder.

In the May 10 conversation, defendant told Hall “they could do it one of

two ways. They could do it robbery gone bad, or they can make it look like a

boyfriend gone mad.” Defendant gave Hall the address of and directions to

Gorham’s home in Paso Robles. When Hall asked how she would be paid,

defendant responded that “this is one thing I’m trying to figure out, the best way

to, you know to transport or transfer it because I don’t want it to look . . . all of a

sudden 25 grand is out my account.” She said she was considering “taking a trip

to Vegas” because “that would easily show why I would pull out that much —

kind of money.” Defendant added that the “house is so old that if it blew up, from

a gas leak or something, it wouldn’t surprise anybody.” She also said that “for

somebody to go in and shoot them in the head while they’re sleeping would not

be . . . surprising.” A pillow could be used to “muffle[] the sound.” She said there

is an alley behind the house they could use to get away. Hall and defendant

agreed that when the job was finished Hall should send defendant a “little girl

card” signed “happy birfday, love, Cuz.” (The misspelling was intentional so the

message would be clear.)

In the May 11 conversation, defendant asked Hall whether “these guys”

would be “bright enough” to figure out how to make it look like a suicide. She

discussed other ways to kill Gorham, such as “doing an overdose,” using cyanide,

or making a gunshot “look self-inflicted.” She suggested that Hall drive because

“they need a brain.” “They’re going to have to have somebody to tell them go do

this.” She added, “It’s your investment. Put it that way. It’s your decision.”

They again discussed how Hall would be paid. Defendant also suggested they go

19

to Gorham’s house in the morning and watch her leave to “take her kids to

school.” “This way when she comes back you know she’s by herself.”

Los Angeles Sheriff’s Detective Patrick Valdez, who was assigned to

investigate this matter, had heard from Hall that defendant might also be soliciting

others to kill Gorham. Anxious to prevent Gorham’s murder, he decided to try to

convince defendant that the murder had been accomplished. On May 21, 2002, he

instructed Hall to tell defendant that she had found someone to “act as a

middleman between the hit man and Hall.” He gave Hall the fictitious name of

“Antonio Davis” as the middleman with a fictitious address. That same day,

defendant released $60 from her jail account to “Antonio Davis.”

At Detective Valdez’s direction, Detective Steinwand and another officer

drove to Paso Robles where, with Gorham’s cooperation, they took photographs of

her apparently dead body with a fake gunshot wound in the head and fake blood.

Detective Valdez also arranged to have Detective Jose Mejia, posing as Antonio

Davis, the fictitious middleman, speak with defendant at the jail on June 8, 2002.

The approximately half-hour interview was videotaped and played to the jury.

In the jail conversation, defendant and Detective Mejia (posing as Antonio

Davis) sat divided by a plexiglass window and spoke through a telephone. In

addition to speaking with one another, they communicated by writing notes and

displaying them through the window, something jail inmates often did because

they knew their conversations might be monitored. Defendant wrote separate

notes on a single sheet of paper that she folded so that only one note at a time

could be read.

Detective Mejia showed defendant two photographs of Gorham’s

apparently dead body. He then held up a note saying, “How do you want to take

care of it? These guys are asking about the money.” Defendant wrote a note back

saying, “I thought Gwen [obviously Gwendolyn Hall] stopped it.” Then she

20

displayed a second note saying, “My star witness.” Later she wrote, “Best friend

of 6 years.” Verbally defendant stated, “This is what I told her.” She then

displayed a note saying, “When out as soon as insurance in —About 45 days I

give to Gwen.” Later, she verbally stated, “I think that’s about as long as it takes,”

and displayed another note saying, “It’s up to how long insurance takes.”

Defendant displayed another note saying, “I thought she was joking,” then showed

again the note saying, “My star witness.”

After the conversation, defendant was searched, and the piece of paper on

which she had written the notes was seized. An address book containing Antonio

Davis’s fictitious address was also found in her possession.

2. Defense Evidence

Defendant presented evidence of two kinds: (1) evidence intended to cast

doubt on whether she had murdered her daughter and (2) evidence in mitigation.

Dr. Gary Hamed testified as an expert on “fracture adhesion of rubbery

materials, particularly a natural rubber.” In 1995 or 1996, he tested the two pieces

of the pacifier in the wrongful death case at Attorney Novak’s request. In his

opinion, the rubber would not have failed as it did if it had not already been

“degraded in some way.” He believed that three of the baby’s forces could have

combined to cause the pacifier to fail completely: sucking, a clamping and

pulling, and the work of the teeth. Dr. Hamed disagreed with Dr. Knauss’s

contrary opinion.

Autumn, defendant’s daughter, testified, “I would like it for you [the jury]

not to execute [her mother] and make it so I can see her.”

Anita Rivera, defendant’s mother, and Gigiana Colaiacovo, her older sister,

testified about defendant’s unhappy life and family background. Colaiacovo

testified that her grandfather had sexually molested her. When she refused his

21

later advances, it appeared he molested defendant instead. Colaiacovo said, “My

sister is a good person.” Both witnesses asked the jury to spare defendant’s life so

they could continue to have a relationship with her.

A defense investigator testified about the defense’s failed efforts to

interview and obtain the cooperation of defendant’s father in New York.

Dr. William Vicary, a psychiatrist, testified about defendant’s mental state.

To prepare his evaluation, he interviewed several people, including defendant’s

mother, sister, and cousin, and defendant herself. Defendant described to him

sexual abuse she had suffered from various people, including her grandfather.

Based on these interviews, Dr. Vicary believed defendant was a victim of sexual

abuse, and that this abuse had had a major negative impact on her. He also

testified that he had found defendant “to be the most emotional and the most

animated when she was talking about her children. She said in all her life, none of

her relationships had ever worked, and that she had only two happy experiences,

the birth of her two little girls.” History that her relatives supplied indicated that

“defendant was a very attentive, loving, supportive mother.” In Dr. Vicary’s

opinion, defendant “would be a model prisoner who would get along with the

guards and the other prisoners in the institution.”

II. DISCUSSION

A. Pretrial Issues

Defendant raises several issues regarding primarily pretrial events.3


3

As will be seen, even though these are primarily pretrial issues, some of the

events petitioner cites occurred during and after trial. For convenience, we will
consider all of the related facts and arguments together.

22

1. Factual Background

Defendant was arrested on February 7, 2001. On February 27, 2001, the

court appointed the public defender to represent her. On April 17, 2001, the

superior court issued orders terminating defendant’s telephone privileges in jail

and ordering the sheriff’s department to monitor her visits. The order was based

on a declaration by Detective Steinwand providing information about defendant’s

attempts to dissuade Gorham from testifying, including her tape-recorded call to

Gorham on March 27, 2001. On April 24, 2001, the court ordered the sheriff to

allow defendant’s attorney to have face-to-face interviews with her and to play

tapes of recorded conversations and interviews regarding the case. On April 26,

2001, the court also ordered the sheriff to provide to defendant “a set of thermal

underwear which is to cover her upper and lower body, in order to help prevent

further coughing and colds.”

On September 26, 2001, defendant retained Attorney M.R. Ward to

represent her in place of the public defender.

Later defendant moved to lift the telephone restrictions. On December 14,

2001, the eventual trial judge, the Honorable William R. Pounders (who was to

preside over all further proceedings in the case), conducted a hearing on the

motion. Defendant said she was “seeking replacement counsel” and needed

telephone access. The prosecutor stated that, due to defendant’s “misuse of the

phones in the past, she has been placed in a part of the Twin Towers jail facility

where she has no access to telephones.” Defense counsel requested an order

permitting defendant limited telephone access to her lawyer. The parties discussed

whether the sheriff’s department had the resources to permit defendant to call her

lawyer while ensuring that she would not be able to use the telephone to speak

with others. While recognizing the need to prevent defendant from continuing to

dissuade witnesses, the court stated, “I think the first choice though is, as you

23

[defense counsel] said, to try to reestablish communication between defendant and

counsel.”

Defendant personally reiterated that she needed telephone privileges to find

a new attorney. The court responded, “It isn’t necessary right now, but again if

you think I’m going to be stupid enough to reestablish your ability to call

witnesses and threaten them, I’m not going to do that . . . . You do now have

counsel that — of your choice, and there are ways to arrange to have counsel

represent you.” Defendant also complained about where she was being housed in

the jail. The court responded, “I’m going to let your attorney work out that, if

that’s a problem. I’m not in a position to tell the sheriff how to run the jail . . . .

I’m not going to jump in here and at your word decide that I’m going to change

your housing and give you free access to the telephone.” The prosecutor offered

to check with the sheriff’s department to see if it could permit defendant telephone

access to her attorney while ensuring she could not speak with others.

The court said it believed defendant had the right to call her attorney but

“under whatever conditions we need to assure that there’s no third party switch.”

The court left it to the parties to “work that out.” In the meantime, the court

signed an order allowing defense counsel “to have face to face interviews with

[defendant] and to play on a tape recorder, tapes of recorded conversations and

interviews pertaining to” the case.

On January 3, 2002, defendant wrote a letter to the court stating that she

had “removed” Ward as her attorney and had not yet obtained a new attorney, and

asking the court to grant her “temporary telephone access” so she could find

another lawyer. The court conducted a hearing on January 16, 2002. At the

hearing, Attorney Ward stated his understanding that defendant “was considering

to seek other counsel.” But he also advised her “that I consider it my obligation to

continue working on the case until I’m relieved.” He said there were matters

24

concerning witnesses “that I would definitely keep working on until such time that

I feel that I’m terminated on the case.” Defendant reiterated that she wanted to

look for a new attorney. The court expressed willingness to allow defendant to

change attorneys if she wished. But it was reluctant to lift the telephone

restrictions due to concerns she would use the telephone to dissuade witnesses. It

noted that she was already charged with using the telephone to attempt to dissuade

a witness.

A jail official stated at the hearing that it was not reasonably feasible to

permit defendant to call a particular person while ensuring she did not call

someone else. He said, “there’s no way for us to set it up where . . . she wouldn’t

be able to manipulate it and be able to call someone else or get on a three way

conversation.” The court explored the possibility of alternate procedures to permit

defendant some telephone access. But ultimately, based on these representations,

the court denied defendant’s request to lift the telephone restrictions. The court

observed, “It really means that counsel has to visit his client much more frequently

at the jail, which I know is a burden, but I also know the security problems.” The

court also noted that Ward “must remain on the case until relieved by the court,

even if your client says otherwise.” Attorney Ward agreed to continue to represent

defendant unless and until she obtained a new attorney.

At the end of the hearing, the court stated its intent to schedule another

hearing for March 13, 2002, if defendant agreed to waive time in which to be tried.

It explained, “that gives you more time to make a decision about your attorney.”

Defendant agreed to waive time. She expressed no objection to Ward’s continuing

representation under the circumstances. Additional hearings were held on March

13, April 25, and June 17, 2002, during which Ward actively represented

defendant. The question of replacing Ward did not arise at these hearings.

25

On June 24, 2002 (i.e., 16 days after the videotaped meeting in jail between

defendant and Detective Mejia, posing as the fictitious middleman Antonio

Davis), defendant sent to the court a long letter containing a wide range of

complaints about her confinement.

On August 1, 2002, Attorney Ward moved to be relieved as attorney of

record due to “defendant’s total lack of cooperation in the preparation for trial, and

her totally uncalled-for misbehavior while in jail.” The court conducted a hearing

the same day.

The court explained to defendant that if it allowed a change of counsel, her

options would be to hire her own new attorney or, if she could not do that, it

would appoint an attorney to represent her. Defendant mentioned, and the court

agreed, that a third alternative would be for her to represent herself. The court

explained to defendant the process involved in selecting qualified court-appointed

counsel. The parties also discussed possible difficulties in allowing defendant

access to a law library if she represented herself. The district attorney noted that

defendant had been “in administrative segregation initially because she telephoned

a witness and attempted to intimidate that witness and now the reason she’s there

has been reinforced by virtue of the fact that she solicited the murder of that same

witness.” The court stated its belief that defendant would have access to a law

library if she represented herself, but it noted other difficulties that would be

inherent in defendant’s representing herself. It provided defendant with written

information “that talks about the privileges that you do have representing yourself

and the limitations on it.” The court continued the matter to let defendant consider

her options. It ordered Ward to continue to represent her in the interim.

At the next hearing on August 13, 2002, defendant stated she wanted

appointed counsel. Both the public defender and the alternative public defender

announced that conflicts prevented them from representing her. The court relieved

26

Ward as defendant’s attorney and said it would appoint an attorney who was

qualified to try a death penalty case. After consulting with the assistant

supervising judge, it appointed to represent her the next attorney in line on the list

of available attorneys. On August 16, 2002, the court noted that that attorney was

on vacation and instead appointed Michael Yamamoto to represent defendant.

On August 22, 2002, Attorney Yamamoto moved to withdraw as

defendant’s attorney, stating, “I am unable to establish an attorney-client

relationship with Ms. Rodriguez, based upon what communication has already

taken place.” He also stated, “Ms. Rodriguez has indicated that another panel

attorney would be preferable to her and that this issue is with me, not appointed

counsel.” A hearing was held on August 28, 2002. The court stated to defendant

that “what I cannot let you do is continue to reject attorneys until you find one that

pleases you the most.” It noted that “you didn’t like the public defender that did

your prelim. You didn’t like your own attorney that you hired and now you’ve

created the situation in which Mr. Yamamoto feels he cannot adequately represent

you.” It informed defendant that she could not continually change attorneys, and

that at some point she would “be stuck.” The court relieved Yamamoto as

attorney of record and referred the matter to a bar panel to select a new attorney to

represent defendant. David Houchin, defendant’s eventual attorney at trial, was

appointed to represent her.

At a hearing on November 7, 2002, Houchin informed the court for the

record that defendant had just given him a letter from her previous attorney, Ward,

postmarked August 7, 2002, that, according to defendant, she had just received the

day before. The letter was stamped that it had been opened in error on August 14,

2002. Houchin described it as “a three-page single-spaced letter, which contains

some very interesting facts about this case. I know that we had problems down at

Twin Towers [the jail facility where defendant was housed] with respect to people

27

getting information about this case or having information about this case, perhaps

statements made by my client. I just want to put that on the record that this thing

has been circulating.” On inquiry from the court, Houchin stated the letter “is a

discussion from her prior counsel as to the case, as to how he anticipates that it

could or should proceed, and some steps that she should perhaps consider taking.”

The court asked whether Houchin wanted the letter made part of the record under

seal. Houchin responded that he would “be the custodian of the document.”

The prosecutor assured the court and defense counsel that he had not seen

the letter. Houchin responded, “I think my concern is perhaps informants popping

up.” The court noted, “There is nothing much we can do with it at this point.

Obviously, it stayed there far too long before it arrived with Ms. Rodriguez. Mr.

Ward was her retained counsel.” It instructed Houchin to “maintain the

record . . . . If there is a problem, we’ll need to examine what’s in the record to

see if that could generate the problem that might come up.” The record contains

no other reference to this letter.

In August 2003, about a month before trial began, Houchin moved the court

to modify the order restricting defendant’s telephone privileges to permit her to

call him. A hearing was held on August 22, 2003. The district attorney expressed

no objection to modifying defendant’s telephone restrictions as long as the order

permitted defendant only to call Houchin and not anyone else. He believed it was

now possible for the jail to arrange this. The court agreed it was appropriate to

permit defendant to speak with Houchin by telephone and not require him to visit

her in jail every time he needed to speak with her. The court signed an order

permitting defendant to telephone Houchin. It also issued an order directing the

sheriff to permit defendant to meet face to face with Houchin and the defense

investigator and that they “be provided the opportunity and facilities to play audio

and video tapes” during the meetings.

28

The same day, the court signed an order directing the sheriff to conduct an

“emotional state evaluation — medication status” on defendant. A fax sent to the

court from Shirin Sharifa, Ph.D., on August 27, 2003, stated that defendant “had

been receiving MHTX [apparently mental health treatment] from Twin Towers jail

for the past 2 yrs. She was last evaluated by this clinician on 8-27-03.”

A lengthy hearing concerning several matters was held on August 28, 2003.

Based on conversations with jail personnel, the prosecutor expressed concern

about the court’s order permitting defendant to call her attorney from jail. He did

not want to state his concerns in open court “because if she doesn’t already know

about this, it would be telegraphing to her what is possible.” He stated that, based

on his conversations, “I believe [defendant] knows how to manipulate the . . .

phone system to call someone other than Mr. Houchin.” Accordingly, the court

held an in camera hearing in the presence of the prosecutor and Houchin but not

defendant. The prosecutor explained his concern that defendant may have learned

from other inmates how to use another inmate’s booking number to call someone

other than Houchin. Believing that “it’s very important for a defendant, an inmate

to be able to contact her attorney,” the court let stand the previous order permitting

defendant limited telephone access to her attorney subject to a jail deputy coming

to court for further questioning.

Later during the August 28 hearing, in defendant’s presence, Houchin told

the court that defendant “said that she was told she’s seen by someone every three

weeks, and that’s all they can do for her.” The court reviewed the response from

Dr. Sharifa dated the day before and expressed concern that it was inadequate.

Houchin stated, “I have concerns after speaking with my client. I have seen

certainly a change in her demeanor, and an onset of that has been within the last

two weeks. This is something certainly additional or different than what they

believe they’ve been treating her for for the last two years.” Houchin asked to

29

have someone determine her emotional state, explaining, “I’m having a difficult

time even when I go down to see her to keep her focused on things. Her emotional

state is certainly not conducive to preparing for this trial.” The court agreed to

issue an appropriate order that Houchin prepared. Houchin said he would prepare

an order for the next day.

Another hearing was conducted on August 29, 2003. It began in

defendant’s absence, but in Houchin’s presence, as a continuation of the in camera

hearing of the day before. The court spoke with a jail representative, then

defendant appeared for the rest of the hearing. After a further hearing in

defendant’s presence, the court ultimately ordered that she be permitted to contact

Houchin by telephone on Mondays, Wednesdays, and Fridays between 6:00 p.m.

and 8:00 p.m. Houchin said, “That would be fine.” The court signed a written

order to that effect. The court also confirmed with the jail representative that

defendant was entitled to face-to-face interviews in jail with Houchin and the

investigator, with the ability to play tapes.

At defendant’s request, the court next conducted an in camera hearing, with

the prosecutor excluded, to address her medical concerns. Defendant complained

that the jail had placed her in “211 isolation, which is the discipline unit.” She

believed there was no reason for her to be there. She expressed many complaints

about her confinement and said she was sick, often vomited, could not eat or sleep,

and suffered from claustrophobia due to the fact her jail cell had no window. She

complained that her doctor in jail could only see her every three weeks rather than

give her weekly therapy, which she believed she needed. The court noted that

“there’s evidence that you’ve engaged in misconduct that’s been offered here, the

evidence being that you’ve communicated with witnesses against you and you

knew you shouldn’t and you tried to persuade them to change their testimony, and

with Ms. Hall that you tried to arrange to have the witnesses eliminated. So it’s

30

not as though you’re doing it, sitting there doing nothing. The discipline sounds

like it’s appropriate. The thing I want to find out too is about your medical

condition.”

After hearing further from defendant, the court asked what she thought was

the solution. Defendant said that she needed to be moved to another unit and, “in

order to be able to help [her attorney] defend myself,” she needed more “mental

psychiatric counseling.” The court said that “as far as discipline in the jail is

concerned, it does seem appropriate . . . given the evidence that I’ve seen here, that

Ms. Rodriguez not be treated as other inmates are, she’s not in the standard

population.” It expressed concern that the cell had no window. But it said it could

make no ruling regarding her housing by hearing only one side of the story. It

said, “the first step is for [defendant] to see the doctors and have a report to the

court.” It again agreed to sign an order that Houchin prepared. Houchin said he

“appreciate[d] the court’s help. I have noticed in the last several weeks’ time

spent with my client is, she is tearful, emotional, and she can only discuss these

issues that she brought up to the court here, and my time is not being used to its

best.”

After again listening to defendant’s concerns, the court said, “I won’t do

anything based on only one side of the story.” It suggested a new hearing where

both sides could be represented. It told defendant, “Ultimately I can issue orders

that they have to follow based on your constitutional rights and the necessity to be

able to prepare for this trial, but I . . . will not do anything just on hearing one side

of the story. I’ve heard your side. If Mr. Houchin wants to pursue it and bring a

hearing before the court, we’ll do that at whatever time is appropriate on

[September 15 ] or otherwise.”

The same day, the court issued an order for a “psychiatric evaluation and

report back to the court, Dept. 101.” On September 3, 2003, defendant, through

31

counsel, filed a formal “motion for evidentiary hearing re: defendant’s

constitutional rights and appropriateness of present housing assignment.”

The court conducted the requested hearing on September 15, 2003, with

county counsel representing the sheriff. The court stated that its “major concern is

with [defendant’s] ability to cooperate with counsel and prepare for trial. There

are other concerns as well as to whether this is inappropriately restricting her at the

county jail.” Psychologist Michael Maloney, the “program director for women’s

mental health for L.A. County jails,” testified. He said that “defendant is seen by

Dr. Diana Delcarlo, who is a psychiatrist. She sees her every three weeks, talks to

her and has prescribed Wellbutrin and buspirone, both mild antidepression, anti-

anxiety drugs.” He said the number of visits defendant received was “more than a

typical inmate her capacity would receive.” She was not defined “as in need of

mental health counseling.” The determination that an inmate needed mental health

counseling could be “made by any number of people,” but no one had done so

regarding defendant.

Maloney said that Dr. Kevin Christy, a psychologist, had seen defendant in

July. He “was of the mind that it would be good to talk to her once a week, and I

said we don’t have the staff to do that.” Regarding whether Dr. Christy believed

defendant “should” be seen once a week, Maloney said, “The only word I’d

question is ‘should.’ I mean it’s not like a psychological or psychiatric

emergency. I mean he felt it would be helpful, nice for her to be able to talk to

someone, and I would fully agree with that, but her condition doesn’t warrant it.”

He said that every inmate in her unit “would like to talk to somebody on a regular

basis. We get requests all the time.”

Deputy Nicholas Zabokrtsky testified that defendant was housed in module

211, an “administration segregation” unit. The cells in that module had no

windows except on the door, and the door windows were generally closed due to a

32

court order issued for security reasons. Module 231, another administrative

segregation unit, was less restrictive and had a window to the outside. At the time

of the hearing, defendant received “day room privileges” for one hour a day,

meaning she could go to a room with a window onto the housing unit and shower

and “just have time outside of her cell.”

After the hearing, the court declined to order defendant moved to module

231, but it expressed concern about her being housed in a cell with no window.

Ultimately, after considerable further discussion among the parties and defendant

personally regarding defendant’s concerns and jail security considerations, the

court ordered that the window on defendant’s jail cell be opened for two hours a

day during her waking hours, that she receive increased clinician visits, and that

she be permitted to shower every other day.

On September 26, 2003, the court received from defendant a four-page

handwritten document labeled “special in parte motion for in camera hearing by

defendant.” Among other things, defendant said there was a “complete

breakdown of trust and conflicts of interest” with Houchin. After reviewing the

document, the court treated it as a request for a “Marsden hearing” (People v.

Marsden (1970) 2 Cal.3d 118) and for a postponement of trial. It conducted the

hearing the same day in the prosecutor’s absence.

Defendant spoke at length at the in camera hearing. Partly she reiterated

some of her previous complaints about her confinement. But she also complained

about her attorney, Houchin. She said, “I believe he’s a good attorney,” but she

expressed concerns about the investigation. Her main concern was about

presenting a mental defense. She especially wanted someone to present a mental

defense regarding the solicitation charge. Specifically, she wanted the defense to

use an expert named Dr. Castellano rather than Dr. Vicary (the expert who

ultimately testified on her behalf at the penalty phase). She wanted various people

33

who worked in the jail, including doctors, and some inmates, to be contacted as

possible witnesses regarding the solicitation charge. She also expressed concerns

about some of her jailers, including Deputy Rachel Jimenez, who was listed as a

possible witness in the case.

After hearing from defendant, the court asked Houchin to respond. He

noted that “diminished capacity is no longer a defense.” He stated that “with

regards to her mental state, I’ve had the opportunity to have and review for some

time and with others a report, a very lengthy report prepared by a panel

psychologist Dr. Richard Romanoff.” The court noted, and Houchin agreed, that

Dr. Romanoff is “one of the best.” Houchin said that “because of discussions that

I’ve had with my client with respect to Dr. Romanoff and with Dr. Romanoff

himself and also with other counsel that have preceded me on this case, without

getting into the specifics, that’s why I need to make a change in the mental health

expert insofar as the penalty phase, and that has been done.” He said he believed

the new defense expert, Dr. Vicary, was “very competent” and would be prepared

for what they might need at a penalty phase. He knew that defendant wanted to

use Dr. Castellano. But he explained that after Dr. Castellano had “had

discussions with other attorneys,” she declined to be an expert on defendant’s

behalf. He said, “I’m sure [Dr. Castellano] would have been very qualified. I

know that Dr. Vicary is very well qualified.”

Houchin said, “With respect to . . . the defense that she wishes that there be

more investigation of the solicitation, there are only certain things that others can

do for us on that mental state. I’m sure that Dr. Vicary, and I’ve talked to him

about also addressing that issue, that was not an issue when the initial report was

prepared by Dr. Romanoff. This occurred . . . after he did his workup. Certainly

Dr. Vicary will rely in part on the report and the work and the tests that Dr.

Romanoff did, and I have asked him also if he could take a look at the issues that

34

my client wishes very much to discuss, what, if any effect her treatment by the

deputies in 211 had on her committing what’s been alleged as a solicitation of

murder.”

When the court asked him to comment on defendant’s desire to have other

witnesses regarding the solicitation count, Houchin replied, “These are people who

my understanding, talking with my client, also she has provided a list of these

people for the investigator that’s been appointed on this case, go also to the issue

of things that may have been said by Jimenez to others there, things that Jimenez

has done not only to my client but to other people who are there, and pretty much

the way I understand it a character impeachment perhaps of Deputy Jimenez on

the issue of what may have led to my client doing what is alleged in the

solicitation for murder count.”

The court asked whether Houchin believed there was a problem “with

having [Deputy Jimenez] as a potential witness and also being in whatever control

there is of Ms. Rodriguez.” Houchin responded that Deputy Jimenez did not have

much personal contact with defendant. He added, “And to be honest about it,

judge, when I have people that are in the position to come in in a guilt phase or

certainly a penalty phase with regards to my client’s activity, my concern was,

should my client be transferred someplace else, the potential was I could double

up the number of deputies who would be coming in here with not so kind things to

say of my client. I was thinking more in terms of damage control, I’ll be very

honest with the court. With respect to where my client was, talking with her,

keeping her settled, being able to keep the potential evidence against us that may

come in in the penalty phase at a minimum.”4

4

Deputy Jimenez had testified in a hearing held before this in camera

hearing, but she did not testify at trial.

35

The court asked whether Houchin was ready to try the case. He responded

that he was. He explained that “my approach to this case and my theory of

representing my client has differed with her opinions and her wishes and her

desires, and these are just hard decisions that I have to make, and I am going to

make them.”

After hearing from both defendant and Houchin, the court denied

defendant’s request for a new attorney and a postponement of trial in a detailed

oral ruling.

The jury selection portion of trial began on September 29, 2003, and the

presentation of evidence began on October 15, 2003. On October 23, 2003, the

court issued a medical order to the sheriff stating, “Medications prescribed have

not been dispensed due to [defendant] being in court. Please dispense.” The next

day, the court issued another medical order stating that “defendant is ill,” and

ordering treatment for “swollen throat, cough, and high fever.”

The jury returned its penalty verdict on November 12, 2003. On November

14, 2003, the sheriff provided a written report to the court. The report stated, “In

response to your court orders dated October 23rd and October 24, 2003, Inmate

Angelina Rodriguez was examined and treated on November 12, 2003 at Twin

Towers Correctional Facility, by Manuel Natividad, M.D.” Under “remarks,” the

report stated: (1) “Patient has a current diagnosis of Cold Symptoms (resolved)”;

(2) “Patient’s medications are up-to-date”; (3) “Patient’s prognosis is good”; (4)

“Patient’s care and treatment are continuing”; and (5) “Patient is fit to continue

trial proceedings.”

Defendant handwrote a long letter to the court dated December 3, 2003,

expressing various concerns about Houchin, mail delivery, and other matters, and

making various requests, including immediate delivery of mail addressed to her,

appointment of an appellate attorney, daily delivery to her of the Los Angeles

36

Times, and restoration of telephone privileges. The court conducted a hearing on

December 12, 2003.

The court believed it was not appropriate to restrict defendant’s mail

delivery. Houchin said he was “unaware of any problems with the mail,” but

defendant said she had not seen any mail in over two months. The court agreed

she had a right to receive her mail. It directed the bailiff to look into the matter to

determine whether it might have to issue an order. It also agreed that, “given the

restrictions,” defendant should receive the Los Angeles Times, and it so ordered.

It declined to restore defendant’s telephone privileges, noting that “based on the

evidence that I heard during the trial, I’d be very concerned still for witnesses.” It

believed “their lives are still at risk.” Regarding defendant’s request for an

appellate attorney, the court noted that “we obviously will have time to work on

that.”

On an unrelated point, the prosecutor said that he wished to place certain

information on the record at a later court date for appellate purposes. Specifically,

he wanted to present evidence that the investigators had arranged the tape-

recorded meeting between Deputy Mejia, posing as the fictitious middleman, and

defendant because of concerns that defendant might have been soliciting other

inmates to murder Gorham. He wanted to show that the action was “not intended

to create consciousness of guilt evidence, it was intended to make sure we did

everything that we could to protect Ms. Gorham and guarantee that if there was

anybody on the outside who intended to follow through on this request, we did our

very best to investigate this case and prevent it from happening.” The court gave

permission for the prosecutor to present the evidence. The prosecutor did so at a

later date.

At the same hearing, defendant stated that she wanted to read a “long

statement” to the court. The court said, and she agreed, that it “would be

37

appropriate” to read the statement when the court considered the automatic motion

to modify the judgment. Defendant also said she was “in leg chains and the black

box,” and complained about extra security in the jail. She said, “I’m not a threat

whatsoever in jail.” The court stated that defendant should not be restrained in

court because “I agree she’s not a physical threat at least in court.” It scheduled

another hearing to consider the necessity of restraints in jail.

The new hearing was held on December 18, 2003. The court stated that the

restraint it had seen in court seemed “excessive without some explanation.”

Accordingly, two witnesses, Psychologist Kevin Christy, and Deputy Zabokrtsky,

testified about jail security concerns. Christy said that around the time of the

jury’s death verdict, he had been called to examine defendant at her request. She

had just returned from court and was upset about Deputies Jimenez and

Zabokrtsky. “She requested that they . . . not be around her because she didn’t

know how she would respond to them.” She said “she was afraid she might do

something to them.” Because of this statement, he was concerned about their

safety.

Deputy Zabokrtsky testified that when an inmate receives a death verdict “it

is common practice for us to increase our security level in our handling of that

inmate based on at that point that individual no longer has anything to lose.”

Regarding defendant specifically, he stated several security concerns, including

the death verdict, her solicitation of murder while in custody, and the concern Dr.

Christy had expressed. All of these factors caused the jailers to increase her

restraints in jail. The court permitted defendant personally to argue that the

additional restraints were unwarranted. She reiterated, “I’m not a threat to

anybody.”

The court found the additional restraints in jail justified “primarily because

of the death verdict and because of the solicitation for murder previously.” It

38

added, “I do understand that blowing off steam on the day the death verdict is

something that could have been very temporary and not well intended, but the

other two reasons are very strong reasons for additional security.” It “agree[d] that

physically alone at least you [defendant] are not a threat in the courtroom.”

Accordingly, it ordered defendant not be restrained at the next court appearance.

The court also reiterated that defendant was to receive a copy of the Los Angeles

Times in her cell (apparently she had not been receiving it) and all of her mail.

The next court appearance was held on January 12, 2004, at which the court

denied defendant’s automatic motion to modify the death verdict and imposed the

sentence of death. Before ruling on the motion to modify the judgment, the court

permitted defendant to make a long statement. Among many other things, she

reiterated many of her previous complaints about her incarceration.

2. Asserted Unlawful and Inhumane Conditions of Confinement

Defendant contends she “was subjected to unlawful and inhumane

conditions of confinement” in violation of various constitutional rights.

“Some courts have recognized, in the context of civil rights actions brought

by pretrial detainees, that certain conditions of confinement may so impair the

defendant’s ability to communicate with counsel or otherwise participate in the

defense that a due process violation or an infringement of the right to effective

assistance of counsel results. [Citations.] On the other hand, conditions of

confinement that have not actually affected the defendant adversely are not

grounds for reversal of a conviction . . . .” (People v. Jenkins (2000) 22 Cal.4th

900, 1002.) Here, nothing in the record suggests that improper conditions of

confinement affected defendant’s ability to communicate with counsel or

otherwise participate in the defense.

39

Defendant certainly complained a lot. But complaints alone do not

establish unconstitutional conditions. Contrary to her protestations at various

hearings, defendant was an obvious and serious security risk. Evidence before the

trial court (and later presented at trial) showed that while in jail, she abused her

telephone privileges by attempting to dissuade a witness, a criminal offense.

(§ 136.1, subd. (a)(2).) Defendant’s criminal behavior then escalated to soliciting

that same witness’s murder. Under the circumstances, jail personnel, and

ultimately the trial court, properly were concerned about the possibility of further

criminal behavior. The trial court listened to defendant’s many complaints, held

hearings, and took appropriate remedial steps to ensure that she was able to defend

herself. “The record in the present case does not indicate that the conditions of

defendant’s confinement so interfered with [her] ability to communicate with

counsel or assist in the defense as to constitute a violation of defendant’s rights to

due process or the effective assistance of counsel.” (People v. Jenkins, supra, 22

Cal.4th at pp. 1002-1003.) As in Jenkins, the trial “court was solicitous regarding

defendant’s complaints,” it held “hearings to attempt to resolve problems,” and it

made appropriate remedial orders. (Id. at p. 1003.)

We also “note that a trial court properly defers to a great extent to the

judgment of jail authorities regarding the conditions of a pretrial detainee’s

confinement. [Citation.] The court generally defers to such authorities regarding

restraints on the defendant’s liberty if these constraints are reasonably related to a

legitimate government purpose — such as . . . to meet institutional security needs

and the need for internal order and discipline [citation] — unless there is

substantial evidence in the record to indicate that such conditions impose restraints

that are excessive relative to the legitimate governmental purpose. [Citation.] The

record suggests strongly that the conditions imposed upon defendant related to

legitimate governmental purposes, and in any event [her] claim has little to do

40

with the validity of the judgment entered against [her] if [her] right to a fair trial

otherwise was observed.” (People v. Jenkins, supra, 22 Cal.4th at p. 1006, fn. 22.)

Here, the court did not always defer to jail authorities. It took active steps to

protect defendant’s ability to defend herself. We see no basis to reverse the

judgment due to defendant’s conditions of confinement.

3. Asserted Limitations on and Interference with Defendant’s

Communications with Her Attorney

Defendant also contends “the trial court’s denial of telephone access and

visits from her defense counsel, and permitting jail interference with

correspondence and legal materials deprived” her of various constitutional rights.

The court never denied defendant visits from her counsel. Indeed, it

repeatedly ordered jail authorities to permit her face-to-face visits with her

attorney and, later, investigator, including the opportunity and facilities to play

audio and videotapes. The court also never permitted jail interference with her

correspondence and legal materials. Whenever defendant complained of such

matters, the court conducted hearings and took steps that, as far as the record

shows, resolved any problems.

Jail authorities and the court did limit defendant’s telephone privileges, but

properly so given her criminal behavior in jail that abused those privileges. The

court presided over several hearings held to determine how to give her as much

access to her attorney as possible consistent with institutional security needs.

During some of the time before trial, her attorney had to visit her in jail rather than

receive telephone calls from her, which was no doubt inconvenient. Criminal

behavior often has inconvenient consequences. But the court was always

solicitous of defendant’s right to reasonable access to her attorney and took

reasonable steps to ensure it. Indeed, a month before jury selection began, the

court arranged a system whereby defendant could call her attorney three days a

41

week during certain hours. Defense counsel said that “would be fine.” This

record presents no reason for this court to disagree with counsel’s assessment.

Defendant received a full opportunity to defend herself.

Defendant also argues the trial court denied her “the right to consult with an

appellate attorney,” when it declined to appoint an appellate attorney to represent

her shortly after the penalty verdict. But the trial court had no obligation to

appoint an appellate attorney to represent her, and certainly not before she was

even sentenced. This court, not the trial court, appoints the appellate attorneys in

capital cases. (Cal. Supreme Ct., Internal Operating Practices & Proc., XV., A.,

2.) We have done so in this case, and defendant is represented on appeal.

4. Asserted Failure to Discharge Defendant’s Retained Counsel

Defendant contends the “trial court committed reversible error when it

failed to discharge [her] retained attorney at her request.”

To summarize the relevant facts, in December 2001, defendant told the

court she was “seeking replacement counsel.” She had not then obtained

replacement counsel and wanted to have her telephone restrictions lifted so she

could try to find a new attorney. After a hearing, the court refused to lift the

restrictions. In January 2002, defendant wrote a letter saying she had “removed”

her retained counsel, Ward, as her attorney. But she had not yet obtained a new

attorney. At a hearing on January 16, 2002, the court acknowledged that

defendant could change attorneys if she wished and discussed her options with

her. But it also took steps to ensure that Ward would continue to represent her

unless and until she obtained a new attorney. Defendant voiced no objection to

Ward’s continuing to represent her for the time being. In August 2002, Ward

asked to be removed as defendant’s attorney, and defendant asked to receive a new

42

court-appointed attorney. At that time, over a year before the trial began, the court

appointed Houchin to represent her and removed Ward as her counsel of record.

In general, a criminal defendant has the right to discharge her retained

attorney. (See People v. Ortiz (1990) 51 Cal.3d 975, 983.) But we see no error in

these circumstances. The court did discharge Ward as defendant’s attorney and, at

her request, appointed a new attorney to represent her. It did not do so in January

2002, when defendant first said she had “removed” him. At that point, defendant

had not yet decided how to replace him. Discharging Ward then would have left

her unrepresented. But she never indicated she wanted to be left unrepresented. A

trial court is not obligated to discharge retained counsel the instant a defendant

states the intent to remove that attorney and even before the defendant decides on

a replacement.

Defendant can also show no prejudice. More than a year before trial began,

at defendant’s request, the court appointed Houchin to represent her. He

continued to represent her from that point on until, during, and after trial. The

failure to discharge Ward in January 2002, rather than in August 2002, when

defendant decided she wanted appointed counsel, merely meant that she did not go

unrepresented in the interim, which could not have prejudiced her.

5. Denial of Defendant’s Request for a New Appointed Attorney

Before trial, defendant asked the court for a new attorney, claiming

Houchin was providing ineffective assistance. The court presided over a hearing

in the prosecutor’s absence and then denied the request. Defendant contends the

court erred.

When a defendant seeks to obtain a new court-appointed counsel on the

basis of inadequate representation, the court must permit her to explain the basis of

her contention and to relate specific instances of inadequate performance. The

43

court must appoint a new attorney if the record clearly shows the current attorney

is not providing adequate representation or that defendant and counsel have such

an irreconcilable conflict that ineffective representation is likely to result. (People

v. Jackson (2009) 45 Cal.4th 662, 682; see People v. Marsden, supra, 2 Cal.3d

118.) If the court holds an adequate hearing, its ruling is reviewed for abuse of

discretion. (People v. Panah (2005) 35 Cal.4th 395, 431.)

Here, the court provided defendant a hearing and the full opportunity to

express her concerns. It then heard from counsel, which was appropriate. (People

v. Panah, supra, 35 Cal.4th at p. 432.) Counsel responded point by point to

defendant’s concerns. He was aware, for example, that defendant had wanted Dr.

Castellano to act as her mental health expert, but he explained that she had

declined to do so.5 He assured the court he was prepared for trial. To the extent

there may have been some disagreements between Houchin and defendant

regarding trial tactics, that disagreement did not compel a change of attorneys. “A

defendant does not have the right to present a defense of his own choosing, but


5

Defendant argues that Houchin’s “decision to use Vicary was disastrous.

Vicary was ill prepared. He did not verify the information provided him almost
entirely by [defendant] and was impeached on that very shortcoming. Having
been provided by Houchin with a prior doctor’s report, Vicary offered some of the
most damaging testimony against [defendant] — that she intentionally enlisted the
assistance of her 9 year old daughter to kill her husband. Vicary did not testify to
any aspect of [defendant’s] mental state which might negate the specific intent
element of the crimes with which she was charged.” The record does not support
these assertions. Dr. Vicary seemed fully prepared. No reason appears to assume
he did anything but the best he could have done under the circumstances. For
example, in light of the extraordinarily calculated nature of defendant’s killing of
her husband (on her third attempt, in order to collect on a life insurance policy),
the record presents no basis to assume Dr. Vicary could have provided any
credible testimony to negate the mental state necessary for first degree murder.
Additionally, presenting expert mental health testimony inherently risks inviting
damaging cross-examination.

44

merely the right to an adequate and competent defense. [Citation.] Tactical

disagreements between the defendant and his attorney do not by themselves

constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses to be

represented by professional counsel, that counsel is “captain of the ship” and can

make all but a few fundamental decisions for the defendant.’ ” (People v. Welch

(1999) 20 Cal.4th 701, 728-729.) We see no abuse of discretion in the court’s

denial of defendant’s motion for a new attorney.

6. Defendant’s Competence to Stand Trial

Defendant contends she was incompetent to stand trial, and that the trial

court erroneously failed to conduct a meaningful hearing on her competence.

“Both the due process clause of the Fourteenth Amendment to the United

States Constitution and state law require a trial judge to suspend proceedings and

conduct a competency hearing whenever the court is presented with substantial

evidence of incompetence, that is, evidence that raises a reasonable or bona fide

doubt concerning the defendant’s competence to stand trial.” (People v. Blair

(2005) 36 Cal.4th 686, 711.) “A defendant can create reasonable doubt through

substantial evidence of mental incompetence, or the trial court can raise the issue

on its own.” (People v. Ary (2011) 51 Cal.4th 510, 517.) A defendant is

incompetent to stand trial if she is unable to consult with her attorney with a

reasonable degree of rational understanding or lacks a rational and factual

understanding of the proceedings against her. (Ibid.; see § 1367, subd. (a).)

“[A]bsent a showing of ‘incompetence’ that is ‘substantial’ as a matter of law, the

trial judge’s decision not to order a competency hearing is entitled to great

deference, because the trial court is in the best position to observe the defendant

during trial.” (People v. Mai (2013) 57 Cal.4th 986, 1033.)

45

Here, not only did the court have the opportunity to observe defendant

during trial, it had the opportunity to observe her at many pretrial hearings at

which she often spoke at great length. It did not err in failing to inquire into

defendant’s mental state more than it did. The record contains no substantial

evidence that she was incompetent to stand trial, i.e., that she was unable to

consult with her attorney with a reasonable degree of understanding or lacked a

rational and factual understanding of the proceedings. Defendant and, on one

occasion, her attorney expressed concern that some of her conditions of

confinement were affecting her mental state and her ability to help prepare a

defense. She was receiving mental health treatment in jail, but she said she needed

more treatment. The court inquired into the medical concerns and ordered a

psychiatric evaluation. It also ordered that defendant receive more frequent

clinical visits. But the purpose of these orders was to determine whether

defendant’s concerns were valid and whether yet more mental health treatment

was necessary. No one suggested she was actually incompetent to stand trial.

Defendant’s many lengthy statements before the court, including during the

Marsden hearing held a few days before trial, showed she was articulate,

understood the charges against her, and was able to assist counsel. (See People v.

Lewis (2008) 43 Cal.4th 415, 525-526.) No reason appeared for the court to

suspend proceedings and conduct a competency hearing.

7. Defendant’s Absence from Proceedings

Defendant contends she was erroneously absent from court proceedings on

three occasions: (1) a portion of the hearing on August 28, 2003, regarding

defendant’s telephone restrictions; (2) the beginning of the hearing on August 29,

2003, which was essentially a continuation of the in camera hearing on the

previous day; and (3) the beginning of the hearing on September 29, 2003, the first

46

day of jury selection. Before defendant appeared on September 29, the court

ordered Gwendolyn Hall, who had been subpoenaed for that day, to appear at a

later date. Defendant was then brought into court and she was present thereafter.

Her attorney was present on all three occasions.

“Broadly stated, a criminal defendant has a right to be personally present at

certain pretrial proceedings and at trial under various provisions of law . . . .”

(People v. Cole (2004) 33 Cal.4th 1158, 1230.) However, “[a] defendant is not

entitled to be personally present during proceedings that bear no reasonable,

substantial relation to his opportunity to defend the charges against him, and the

burden is on the defendant to demonstrate that his absence prejudiced his case or

denied him a fair and impartial trial.” (People v. Benavides (2005) 35 Cal.4th 69,

89.)

The hearings held in defendant’s absence bore no substantial relation to her

opportunity to defend against the charges. The portions of the hearings on August

28 and 29, 2003, were conducted in defendant’s absence so the prosecutor could

explain to the court how inmates were able to use jail telephones to call someone

they were not supposed to call. The prosecutor and court were understandably

reluctant to educate defendant on how she could manipulate the system, in case

she did not already know. In any event, defendant was represented by counsel at

all times, and most of the hearings regarding restrictions on her telephone access

were conducted in her presence. She was present, for example, at the latter

portion of the August 29, 2003, hearing when the court ordered that she be

permitted to contact her attorney three days a week during specified hours. Her

absence during parts of those hearings did not affect her opportunity to defend

against the charges. Her brief absence at the beginning of the September 29, 2002,

hearing, when the court merely ordered a witness to appear at a later date,

47

obviously also bore no relation to defendant’s opportunity to defend against the

charges.

8. Asserted Judicial Bias

Defendant contends Judge Pounders was biased against her. She never

objected on this basis, or moved to disqualify him for bias, at any time during the

lengthy pretrial proceedings over which he presided or during or after trial.

Accordingly, this claim is forfeited. Defendant may not go to trial before a judge

and gamble on a favorable result, and then assert for the first time on appeal that

the judge was biased. (People v. Farley (2009) 46 Cal.4th 1053, 1110; People v.

Chatman (2006) 38 Cal.4th 344, 362-363; see People v. Rogers (1978) 21 Cal.3d

542, 548 [“The contrary rule would . . . ‘permit the defendant to gamble on an

acquittal at his trial secure in the knowledge that a conviction would be reversed

on appeal.’ ”].)

Moreover, the contention lacks merit. Judge Pounders was very responsive

to defendant’s legitimate concerns and needs. He always patiently permitted her

to speak when she wished. He took active steps to ensure she had adequate access

to her attorney and to protect her other rights. After trial, he went so far as to

order the Los Angeles Times to be delivered to her cell. Contrary to defendant’s

argument, the fact the judge permitted the prosecution to place certain information

on the record after the trial did not show bias. He permitted both sides to place

matters on the record. The record contains no hint of judicial bias.

B. Guilt Trial Issues

1. Excusal for Cause of Two Prospective Jurors

Defendant contends the court erred in excusing for cause two prospective

jurors. The court may excuse prospective jurors for cause if their views on the

death penalty would prevent or substantially impair the performance of their duties

48

as jurors. (People v. Duenas (2012) 55 Cal.4th 1, 10.) The court may excuse

prospective jurors for other reasons if their state of mind will prevent them from

acting impartially and without prejudice to any party. (People v. Carasi (2008) 44

Cal.4th 1263, 1290.) The standard of review in both situations is the same.

“When the prospective juror’s answers on voir dire are conflicting or equivocal,

the trial court’s findings as to the prospective juror’s state of mind are binding on

appellate courts if supported by substantial evidence.” (People v. Duenas, supra,

at p. 10.)

The first of these prospective jurors stated on her questionnaire that her

general feelings about the death penalty were “for and against” and her

philosophical opinion was “neutral.” She believed life in prison without the

possibility of parole was a worse punishment than death. She was an employee of

the Los Angeles County District Attorney’s office (the office prosecuting the

case), but she said she could vote not guilty. During questioning by the court

regarding the death penalty, she said she could adjust her thinking regarding which

punishment was worse and vote for life if appropriate. She also indicated that in

death penalty prosecutions she had “come across in my dealings with the office,”

only once had she agreed with it. She told defense counsel her mind would be

open to either punishment, and that she believed the death penalty was not used

enough.

When the prosecutor asked her whether she could personally vote for death,

she said, “I don’t know.” She reiterated that she had seen death penalty cases in

her experience as an employee of the district attorney’s office, and only once had

she agreed with the decision to seek the death penalty — in a case in which the

“defendant was very violent and he had committed several murders and he had

finally been caught.” When asked again whether she could personally vote for

death, she responded, “I’m not sure.” She said that was the best answer she could

49

give. She added that she would be more comfortable not sitting on a death penalty

case, explaining, “You holding somebody’s life in your hands, and I mean people

do wrong, but I’m not really really really for the death penalty. I understand it and

I think there are some circumstances it should be death, but I don’t know if I

personally could say, yeah, this person deserves to die.”

The court excused this prospective juror for cause. It noted that her

answers to its questions had made her appear acceptable, but it believed that “her

statement finally that she was not sure that she could impose the death sentence I

think does indicate that it is . . . not a realistic, practical possibility that she would

do that, particularly given the circumstances here. Perhaps on a defendant who

has killed 25 people she might be able to do that, so I will allow the challenge for

cause” as to that juror.

The record supports the court’s excusal of this juror. She assured defense

counsel that she could vote for life in an appropriate case, but she could not give a

comparable assurance that she could vote for death in an appropriate case. In this

situation, we must defer to the trial court’s judgment regarding this prospective

juror’s state of mind.

The second of these prospective jurors answered “yes” on the jury

questionnaire to the question whether he had any religious or moral feelings that

would make it difficult or impossible to sit in judgment of another person. He

explained, “Most engrained in my mind is the dictum: ‘Judgment is mine!’

Vengeance is as hazy as judgment to me.” He said law enforcement had once

been “non-chalant” in responding to a crime involving a friend or relative. He

also noted an unpleasant experience he had had with a peace officer, although he

also said that a peace officer had been “very helpful and courteous.” He said he

was moderately in favor of the death penalty.

50

During voir dire, when asked whether his concern about law enforcement

would cause a testifying officer to “have to prove something extra to be believed

by you,” he responded, “My feelings ambivalent, but I would take it one at a

time.” He said he would not “hold this against the officer testifying.” Later he

said, “And I would be very very . . . questioning on the officer’s veracity . . . .”

But he added, “I don’t make a general statement.” He told defense counsel he

would not automatically disregard a law enforcement officer’s testimony. But

when the prosecutor asked whether he would have more questions about a police

officer’s credibility than other witnesses, he responded, “I think I would have,

yeah.” Specifically, he would treat a deputy sheriff who testified “differently in

terms of evaluating the credibility than [he] would a regular witness who wasn’t a

law enforcement officer.”

When asked about the death penalty he said, “My attitude towards capital

punishment is, if it is . . . a punishment, it is my feeling doesn’t seem to be a

deterrent to — it doesn’t seem to achieve the purpose really. My feelings as far as

it’s — it’s still a tooth for a tooth kind of thing rather than to punish the accused.

And I tend more to not favor capital punishment.” Later he said he was

“moderately” in favor of the death penalty. He added that he could impose the

death penalty. When asked about his “vengeance is mine” response on the

questionnaire, he said, “It’s more on the penalty portion of it, on the . . . capital

punishment.” He said he could be fair to the prosecutor’s side, but he also said

that, although he could “be in judgment” regarding guilt, “the capital punishment

is one that makes me uncomfortable.” When asked whether the lack of comfort

would affect his ability to be fair to the prosecutor, he responded, “I don’t think so

because . . . mine is emotional side. If I divorce my emotions from or my . . . kind

of belief that capital punishment is not a deterrent, if it is only on that phase, it’s

not — I . . . would not be affected by your . . . side. I would still be . . . fair to

51

your arguments.” He would “definitely make sure that my emotion will not enter

into it.”

The prosecutor challenged this juror for cause both because he would not

judge police officers by the same standards as other witnesses and because of

concerns about his ability to decide penalty. He explained, “I believe that

notwithstanding his final answer, he’s given other answers which indicate that he’s

incapable, I think, of deciding penalty fairly.” Defense counsel objected, arguing

the juror could be fair.

The court granted the challenge. It was concerned about the juror’s

explanation that the “vengeance is mine” answer on the questionnaire “didn’t

apply to the guilt phase, it applied to the penalty phase.” It noted that the answer

occurred early in the questionnaire, long before there was any mention of the death

penalty. “So when he answered, he did not know that the penalty was a possibility

of death, so I don’t accept his answer as being that’s what he’s saying, that it deals

only with the penalty. He’s basically saying that’s going to affect — the charges

here are going to affect him, even deciding the guilt phase of the case. Anyway,

on both issues, I will accept the challenge for cause.”

The record supports the court’s determination that this juror’s state of mind

would prevent him from being entirely impartial. The juror’s explanation

regarding his “vengeance is mine” answer was quite confused, and he essentially

admitted he would judge law enforcement witnesses by a different standard than

other witnesses. Accordingly, as we must, we defer to the court’s ruling as to this

prospective juror. We see no error.

52

2. Evidentiary Rulings

a. Admission of Demeanor Evidence

Defendant contends the court erred on several occasions in permitting

witnesses to testify regarding her demeanor. The court generally overruled her

objections that the testimony was speculative.

Officer Sharpe, who first responded to the call at defendant’s home the

morning Frank died, testified about her demeanor and contrasted it with the

demeanor of others who had lost a loved one that he had had contact with in the

past. Frank’s sister, Rebecca Perkins, testified about defendant’s lack of emotion

when she spoke with defendant the day Frank died. When Perkins later said that

defendant “wasn’t upset for losing a husband,” the court sustained defendant’s

objection on the ground it was speculative. Defendant’s other sister, Shirley

Coers, testified that when she spoke with defendant shortly after Frank’s death,

“she always seemed very calm”; she seemed “not upset, not crying, not sad.”

Mickey Marracino, the life insurance agent whom defendant contacted shortly

after Frank’s death, testified about her lack of emotion and said, “she didn’t stop to

compose herself the way other people have done when I’ve talked to them when

they’ve lost a loved one.” Detective Wilsey, the original investigator into this

case, testified about defendant’s lack of emotion. He explained, “Her first

questions were relating to the coroner’s department, the disposition of the body.

She had mentioned that she wanted to have the body cremated, and the questions

were centered around that, not . . . cause of death, which is normally what we hear

or . . . what’s happening with the case, that kind of a thing.”

53

Defendant contends this demeanor testimony was “irrelevant, without

foundation, and based on speculation.” 6 However, she objected at trial only on

grounds that the testimony was speculative. Accordingly, only that objection is

cognizable on appeal. (People v. Partida (2005) 37 Cal.4th 428, 433-434.) An

objection was particularly necessary regarding defendant’s lack-of-foundation

claim. An objection on that basis would have allowed the party offering the

evidence to lay additional foundation as needed. (People v. Partida, supra, at p.

434.) In any event, defendant does not explain what foundation was lacking and

we perceive no missing foundation. The witnesses spoke from personal

knowledge.

To the extent, if any, that defendant’s relevance contention differs from the

contention that the testimony was speculative, that contention is not cognizable.

Moreover, the testimony was relevant. It had a “tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the

action.” (Evid. Code, § 210.) It was relevant on the question of whether

defendant was a grieving widow or had just killed her husband to collect life

insurance proceeds, a question obviously of consequence in deciding whether

defendant was guilty of her husband’s murder.

Defendant’s argument that the testimony was speculative is cognizable. To

some extent that objection is inherently based on relevance. “[T]he prohibition

against an examiner’s question that calls for an answer based on speculation and

6

Defendant also contends the court erred in permitting Sergeant Holmes to

provide demeanor testimony at a pretrial hearing. This testimony was not
presented at trial. Defendant asserts, without elaboration, that some of the
“demeanor testimony contributed to erroneous pretrial rulings.” But defendant
does not identify those pretrial rulings or explain how they were erroneous, how
the demeanor testimony contributed to the asserted error, or how the rulings
affected the trial. Accordingly, we do not consider this point.

54

conjecture is also founded on the concept of relevancy. Such testimony is

irrelevant, because it does not have a tendency in reason to prove or disprove the

disputed issue on which the testimony is proffered.” (1 Jefferson’s Cal. Evidence

Benchbook (Cont. Ed. Bar 4th ed. 2013) Competency, Examination, and

Credibility of Witnesses, § 28.56, p. 534.) Accordingly, to the extent defendant’s

relevancy argument is included in her argument concerning speculation, that

argument is cognizable. But we see no error. No blanket rule prohibiting

demeanor testimony exists, and the trial court here reasonably found the actual

testimony not speculative.

“[A]n examiner’s question asking a lay witness to testify to facts that the

witness has not personally observed, or to state an opinion not based on his or her

own observations, calls for speculation and conjecture by the witness and is

prohibited by” Evidence Code sections 702 and 800. (1 Jefferson’s Cal. Evidence

Benchbook, supra, § 28.56, p. 534.) Here, the testimony the court permitted was

based on facts the witnesses had personally observed. The court did not abuse its

discretion in finding the testimony not speculative. (People v. Taylor (1990) 52

Cal.3d 719, 739.)

Defendant cites People v. Sergill (1982) 138 Cal.App.3d 34, where the

appellate court found the trial court had erred in permitting police officers to

testify that, in their opinion, a certain witness was credible. The demeanor

testimony of this case, based on the witnesses’ own perceptions, bears no

resemblance to the testimony found inadmissible in Sergill.

The parties debate at length whether the testimony was admissible as either

lay or expert opinion. However, defendant did not object that the testimony was

impermissible opinion, so any argument in this regard is not cognizable.

Moreover, it does not appear the court admitted the evidence as opinion testimony.

The testimony was based on the witnesses’ own perceptions. Indeed, the court

55

sustained defendant’s objection to Perkins’s statement that defendant “wasn’t

upset for losing a husband,” which does appear to have been an opinion. Contrary

to defendant’s assertion that the court’s rulings were inconsistent, the court

consistently permitted the witnesses to testify about what they had observed, but

not to express an opinion as to the meaning of those observations. Doing so came

within its discretion.

Defendant also challenges the admissibility of Sergeant Holmes’s

testimony that “I knew that she was calling every day and every single

conversation was regarding financial, getting money to make it, and she wanted

the coroner’s office to come back as soon as possible with a cause of death so that

she could be financially better off.” Defendant did not object to this testimony, so

the contention is not cognizable. Moreover, this was not demeanor testimony at

all but was merely Sergeant Holmes’s summary of his many telephone

conversations with defendant during the investigation. No basis appears for

defendant to have objected to this testimony.

b. Asserted Violation of Confrontation Rights

Defendant contends the court violated her right to confront witnesses under

the Sixth Amendment to the United States Constitution.

Defendant first challenges the admission of statements Gwendolyn Hall

made to law enforcement agents regarding defendant’s efforts to solicit Gorham’s

murder. The prosecution called Hall as a witness, and she testified in front of the

jury. Although she provided some testimony, she also claimed not to have any

memory regarding the events she had told law enforcement agents about.

Defendant then cross-examined her. The trial court found Hall’s “statements that

she does not recall are not truthful” and, over defendant’s objection, admitted

evidence of her prior statements.

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Admitting the prior statements did not violate defendant’s right to confront

Hall. Hall testified at trial and was subject to cross-examination. The United

States Supreme Court has made clear that admitting prior statements of a witness

who testifies at trial and is subject to cross-examination does not violate a

defendant’s confrontation rights. (California v. Green (1970) 399 U.S. 149; see

People v. Green (1971) 3 Cal.3d 981 [same case on remand].)

In support of her argument, defendant cites a series of high court decisions

beginning with Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Those

cases changed constitutional confrontation law in a significant respect. Crawford

held that the prosecution may not rely on “testimonial” out-of-court statements

unless the witness testifies at trial or is unavailable to testify and the defendant had

a prior opportunity for cross-examination. (See, e.g., People v. Lopez (2012) 55

Cal.4th 569, 576-580.) But those cases made no change regarding use of prior

statements of a witness who actually testifies. Crawford itself “reiterate[d] that,

when the declarant appears for cross-examination at trial, the Confrontation

Clause places no constraints at all on the use of his prior testimonial statements.”

(Crawford, supra, at pp. 59-60, fn. 9 [citing California v. Green, supra, 399 U.S.

149 ]; see People v. Cowan (2010) 50 Cal.4th 401, 463 [“The Sixth Amendment’s

confrontation clause does not prohibit admitting into evidence ‘testimonial’

hearsay statements against a defendant if the declarant appears for cross-

examination at trial.”].)

As a practical matter, Hall’s claim of total lack of recall limited defendant’s

ability to cross-examine her about her prior statements. But this circumstance

does not implicate the confrontation clause. (United States v. Owens (1988) 484

U.S. 554, 555-560; People v. Dement (2011) 53 Cal.4th 1, 23-24.) “The

witness . . . was not absent from the trial. She testified at length at trial and was

subjected to lengthy cross-examination. The jury had the opportunity to observe

57

her demeanor, and the defense cross-examined her about bias. Even though she

professed total inability to recall the crime or her statements to police, and this

narrowed the practical scope of cross-examination, her presence at trial as a

testifying witness gave the jury the opportunity to assess her demeanor and

whether any credibility should be given to her testimony or her prior statements.

This was all the constitutional right to confrontation required.” (People v. Perez

(2000) 82 Cal.App.4th 760, 766.) The same is true here.

It is not clear whether defendant also contends that admitting Hall’s prior

statements violated state law. But doing so did not violate state law. “A witness’s

prior statement that is inconsistent with his or her testimony is admissible so long

as the witness is given the opportunity to explain or deny the statement. (Evid.

Code, §§ 770, 1235.)” (People v. Ledesma (2006) 39 Cal.4th 641, 710.)

Ordinarily, a witness’s inability to remember an event is not inconsistent with that

witness’s prior statement describing the event. (Id. at p. 711.) When, however, “a

witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is

implied. [Citation.] As long as there is a reasonable basis in the record for

concluding that the witness’s ‘I don’t remember’ statements are evasive and

untruthful, admission of his or her prior statements is proper.” (People v. Johnson

(1992) 3 Cal.4th 1183, 1219-1220; see People v. Ledesma, supra, at pp. 711-712.)

Here, the trial court expressly found Hall’s repeated “I don’t recall” claims to be

untruthful. The record provides a reasonable basis for that conclusion.

Accordingly, admitting Hall’s prior statements did not violate state law.

In any event, the jury did not reach a verdict on the charge of soliciting

murder, the only charge to which Hall’s prior statements related. Accordingly,

admitting those statements did not prejudice defendant at the guilt phase.

Next, defendant contends the presentation of the technical evidence

violated her confrontation rights. Specifically, she challenges the testimony that

58

the victim’s body contained oleander and ethylene glycol, and Dr. Clark’s opinion

testimony. She did not object at trial. But to the extent defendant contends there

was a confrontation clause violation under Crawford, supra, 541 U.S. 36, and its

progeny, we have excused the failure to object in trials that, like this one, predated

Crawford. (People v. Pearson (2013) 56 Cal.4th 393, 461-462.) Accordingly, we

will consider defendant’s contention on the merits.

The contention lacks merit. Indeed, it is not clear exactly what

confrontation defendant claims she was denied. Dr. Birgit Puschner, a

toxicologist, performed the tests that showed the victim’s body contained

oleander; she testified at trial and was subject to cross-examination. (Defendant

did not actually cross-examine her, but that does not matter. She had the

opportunity to cross-examine her. (Crawford, supra, 541 U.S. at p. 59.)) Dan

Anderson, also a toxicologist, and Dr. Chinwah, the pathologist who performed

the autopsy, both independently tested and determined that the victim’s body

contained ethylene glycol; both testified at trial and were subject to cross-

examination. And Dr. William Chao, the emergency room doctor who treated the

victim on September 7, 2000, testified and was subject to cross-examination.

Defendant thus received full confrontation rights as to these witnesses. Dr. Clark,

who testified and was subject to cross-examination, based his opinions on the

reports of those experts, but, because those experts also testified and were subject

to cross-examination, defendant was able to confront all of the experts. A

testifying expert may base his or her opinion on hearsay statements, even if

testimonial, at least when those who made the hearsay statements also testify and

are subject to cross-examination. Defendant received full confrontation rights as

to those portions of the reports, if any, that are testimonial under Crawford, supra,
541 U.S. 36, and its progeny.

59

One or possibly two exceptions exist. First, Anderson testified that blood

samples from the victim’s body had been sent to an independent laboratory, and

the laboratory returned a report stating that the samples contained ethylene glycol.

We need not determine whether this report was testimonial (see, e.g., People v.

Lopez, supra, 55 Cal.4th 569), because any error in permitting this testimony was

harmless. Anderson also testified that after he received the report, he conducted

his own testing and determined himself that the victim’s body contained ethylene

glycol. Moreover, Dr. Chinwah testified that he reexamined the body and also

determined that the kidneys contained ethylene glycol. Because of these

independent opinions by testifying witnesses on a point defendant did not dispute,

Anderson’s mention of the original report was harmless beyond a reasonable

doubt. (People v. Lopez, supra, at p. 585.)

Second, although it is difficult to discern on this record because of the

absence of an objection, it is possible that portions of the medical records from the

victim’s visit to the emergency room about which Dr. Chao (and possibly Dr.

Clark) testified were generated by someone other than Dr. Chao, such as nurses.

But one of Crawford’s progeny makes clear that “medical records created for

treatment purposes . . . would not be testimonial under our decision today.”

(Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 312, fn. 2.) The medical

records from the victim’s emergency room visit were created for treatment

purposes, not for some other purpose such as law enforcement. Defendant was not

yet a suspect in a murder that had not yet occurred. Accordingly, the medical

records were not testimonial.

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C. Penalty Issues

1. Effect of Asserted Guilt Phase Errors on Penalty Determination

Defendant contends that the asserted guilt phase errors were prejudicial at

the penalty phase. However, the only possible guilt phase error that we have

identified is the presumed error in permitting the toxicologist, Anderson, to

mention the results of the independent laboratory’s report finding ethylene glycol

in the victim’s blood, and that was harmless because Anderson and Dr. Chinwah

both independently determined that the victim’s body contained ethylene glycol.

The presumed error was equally harmless to the penalty determination.

2. Issues Concerning the Evidence of Defendant’s Prior Murder

Defendant raises several issues concerning the evidence that she murdered

her infant daughter.

a. Adequacy of the Hearing Regarding the Admissibility of the

Evidence

Section 190.3 requires the prosecution to provide the defendant with notice

of aggravating evidence it intends to introduce at the penalty phase. The

prosecutor’s notice of aggravating evidence filed to comply with this section

stated the intent to present evidence of, among other matters, defendant’s murder

of her daughter, Alicia F. In response, defendant moved the court to conduct a

“preliminary examination” regarding the admissibility of that evidence. The

prosecutor filed an opposition that stated in detail the evidence that defendant

murdered her daughter and attached a copy of Dr. Knauss’s report.

The court held a hearing before trial. It stated it had read defendant’s

motion and the prosecutor’s response. Defense counsel asked the court to preside

over a hearing at which Dr. Knauss testified. The court agreed to do so.

Accordingly, Dr. Knauss testified outside the jury’s presence, giving testimony

consistent with his later testimony before the jury. After hearing Dr. Knauss’s

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testimony and considering arguments from counsel, the court found the evidence

that defendant murdered her daughter was sufficient to go to the jury.

Defendant contends the hearing was inadequate. A trial court may

“conduct a preliminary inquiry before the penalty phase to determine whether

there is substantial evidence to prove each element of the other criminal activity.”

(People v. Phillips (1985) 41 Cal.3d 29, 72, fn. 25) “[T]his preliminary inquiry is

discretionary and, if held, need not be an evidentiary hearing. If the court does

elect, in its discretion, to conduct such an inquiry it may be based on an offer of

proof.” (People v. Jones (2011) 51 Cal.4th 346, 380.) Here, the trial court did

conduct a preliminary inquiry. It read the moving papers and the prosecutor’s

summary of the evidence, which was in effect an offer of proof, and heard

arguments from both sides regarding the strength of the evidence. Additionally,

although it did not have to do so (see People v. Hart (1999) 20 Cal.4th 546, 649),

it required Dr. Knauss to testify both at the preliminary inquiry and again at the

penalty phase. This inquiry came well within its discretion.

Defendant contends the court applied the wrong legal standard in finding

the evidence sufficient. The record does not support the contention. “Contrary to

defendant’s urging, the prosecution did not bear the burden at the preliminary

inquiry to establish beyond a reasonable doubt that defendant committed a violent

crime. The court could accept ‘evidence that would allow a rational trier of fact to

make a determination beyond a reasonable doubt as to [such] criminal activity.’ ”

(People v. Ochoa (1998) 19 Cal.4th 353, 449, quoting People v. Clair (1992) 2

Cal.4th 629, 676.) The prosecutor cited Ochoa, both in its written opposition and

at the hearing. Nothing in the record suggests the court applied some different,

lower standard.

Moreover, no abuse of discretion in admitting evidence of other crimes will

be found if, in fact, the evidence was legally sufficient. (People v. Whisenhunt

62

(2008) 44 Cal.4th 174, 225.) As we next conclude, the evidence was sufficient to

submit the matter to the jury.

b. Sufficiency of the Evidence

Defendant contends the evidence was insufficient for the jury to find

beyond a reasonable doubt that she murdered her daughter. Because the question

concerns the admissibility of evidence, it also comes within the trial court’s

discretion. (People v. Jones, supra, 51 Cal.4th at p. 380; People v. Clair, supra, 2

Cal.4th at p. 676.) We see no abuse of discretion.

There was ample evidence that defendant murdered her daughter. About

two months before Alicia died, defendant took out life insurance on the baby

without telling her then husband, the baby’s father, and named only herself the

primary beneficiary. This circumstance alone strongly suggests she murdered her

daughter to collect the life insurance proceeds, just as she later murdered her

husband to collect on a life insurance policy that she insisted he take out. She was

the lone adult in the house when the baby choked to death and, rather than remain

with the baby until emergency help arrived, as the jury could reasonably find a

mother would normally do, she left the baby inside and met the police outside her

house. After her daughter died, she seemed more concerned about collecting the

pacifier parts and suing Gerber than about losing her baby. Thomas testified that

defendant had previously heard about Gerber’s recall of the pacifier on which the

baby later choked. Additionally, Dr. Knauss’s testimony strongly supported a

finding that the baby’s death could not have been an accident, especially when

combined with defendant’s deposition testimony that she continually checked the

pacifier by pulling on it. His opinion was especially credible given that defendant

herself had retained him to provide an opinion. “The foregoing evidence was

sufficient to allow a rational trier of fact to determine beyond a reasonable doubt

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that defendant murdered” her daughter. (People v. Hart, supra, 20 Cal.4th at p.

650.)

c. Evidentiary Claims

Defendant contends the court committed several evidentiary errors

regarding the evidence that she murdered her daughter.

First, she contends the court erred in admitting evidence of her deposition

testimony, apparently on the ground that it was inadmissible hearsay. (See pt. I.

B. 1. a., post.) However, defendant did not object on this ground so the contention

is not cognizable on appeal. (People v. Partida, supra, 37 Cal.4th at pp. 433-434.)

Defendant contends her attorney was ineffective for not objecting on this

ground. However, an objection on hearsay grounds would have been specious.

Evidence Code section 1220 makes a “statement” of a party an exception to the

general rule forbidding hearsay evidence when the statement is offered against that

party. Defendant argues that nothing in her deposition testimony could be

considered an “admission.” The argument is irrelevant. Although Evidence Code

section 1220’s exception to the hearsay rule is sometimes referred to an exception

for admissions, the exception is not so limited. (People v. Horning (2004) 34

Cal.4th 871, 898, fn. 5.) Instead, the exception applies to all statements of the

party against whom they are offered. Here, defendant’s deposition testimony

consisted of statements, defendant made the statements, the statements were

offered against her, and she was a party to this action. Thus, the statements came

within an exception to the hearsay rule. (Id. at p. 898.) They were admissible

against defendant.

Next, defendant contends that Dr. Knauss “was permitted to testify beyond

the scope of his expertise” both in his initial testimony at the preliminary inquiry

and before the jury. She did not object on this ground. Indeed, for purposes of the

64

preliminary inquiry, defense counsel stipulated that Dr. Knauss “is a qualified

court expert on the failure of viscous materials, including rubbers.” Accordingly,

this contention is not cognizable on appeal. (People v. Partida, supra, 37 Cal.4th

at pp. 433-434.) Moreover, the trial court would have had discretion to admit the

evidence had defendant objected.

Dr. Knauss was a professor at Caltech and had been since 1965. He

received a Ph.D. in aeronautics from Caltech, but “the topic of [his] research has

been ever since [his] graduate, student graduate days, failure and fracture of

polymers, which includes rubbers.” Of his approximately 150-160 publications,

about 25-30 percent concerned the fracture of polymers. He had testified in court

“as an expert on the failures of rubbers, how rubbers fracture and why they

fracture” about 30 times.

“A person is qualified to testify as an expert if he has special knowledge,

skill, experience, training, or education sufficient to qualify him as an expert on

the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).)

Determining whether a witness qualifies as an expert comes within a trial court’s

discretion. (People v. Eubanks (2011) 53 Cal.4th 110, 140.) Given Dr. Knauss’s

impressive qualifications, the trial court certainly had discretion to permit him to

testify as an expert regarding the fracture of rubbers such as the rubber in the

pacifier involved in the death of defendant’s infant daughter. Defendant cites

portions of his testimony, largely on cross-examination, in which, for example, he

testified that before he tested the pacifier parts, he had had little or no experience

with, specifically, baby pacifiers. But such matters merely go to the weight of Dr.

Knauss’s testimony, not its admissibility. “Defendant was entitled to attack [the

expert’s] credibility regarding the claimed basis of [his] opinion, but questions

regarding the validity or credibility of an expert’s knowledge go to the weight of

such testimony, not its admissibility.” (People v. Eubanks, supra, at p. 143.) Dr.

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Knauss was an expert on why and how rubbers fracture, so he was entitled to

express an opinion regarding whether the actions of a baby could have cause the

pacifier at issue to fracture. As in Eubanks, defendant was able to question the

witness’s conclusions and the foundation for his opinions through cross-

examination and additionally to present her own expert on the same matter. (Ibid.)

Defendant did object to some of Dr. Knauss’s testimony at the preliminary

inquiry on the ground of lack of foundation, once successfully, other times

unsuccessfully. To the extent defendant bases her argument on these objections,

the contention is cognizable. But we see no error here either. Over a lack-of-

foundation objection, the court permitted the witness to testify that he would not

expect a baby’s teeth to come into contact with the area where the separation

occurred, given how close that place was to the shield, and that it was “not

feasible” for a 13-month-old infant with two teeth to have sucked the pacifier apart

if it was otherwise intact. The witness explained this opinion in detail, basing it on

his experience and his close examination of the pacifier parts. The trial court had

discretion to conclude this opinion was sufficiently founded to go to the jury.

(People v. Eubanks, supra, 53 Cal.4th at p. 142.) “When expert opinion is offered,

much must be left to the trial court’s discretion.” (People v. Carpenter (1997) 15

Cal.4th 312, 403.)

To the extent defendant argues Dr. Knauss’s testimony was not proper

opinion because it was based in part on what could be considered common sense

or common knowledge, such as his testimony that a baby’s teeth would not come

into contact with an area of the rubber within a few millimeters of the shield, that

too presents no basis to exclude his testimony. Although an expert’s opinion

testimony is limited “to a subject that is sufficiently beyond common experience

that the opinion of an expert would assist the trier of fact” (Evid. Code, § 801,

subd. (a)), the jury does not have to be wholly ignorant of the opinion’s subject

66

matter for it to be admissible. (People v. Edwards (2013) 57 Cal.4th 658, 709;

People v. Farnam (2002) 28 Cal.4th 107, 162-163.) “Here, we cannot say that

[the expert’s] testimony would not have assisted the jury (Evid. Code, § 801, subd.

(a)) or that ‘ “it would add nothing at all to the jury’s common fund of

information.” ’ ” (People v. Farnam, supra, at p. 163.) Expert testimony

regarding what does and does not cause rubber to fracture is sufficiently beyond

common experience to be admissible even if parts of that testimony refer to

matters within common knowledge.

The court properly permitted both Dr. Knauss and Dr. Hamed to testify and

let the jury judge who was more credible.

Finally, defendant contends the court erred in not permitting Attorney

Novak to provide certain expert opinion testimony. Novak testified outside the

jury’s presence that, given the large amount of the settlement ($710,000), he did

not believe Gerber settled defendant’s lawsuit merely for its nuisance value. He

did not believe the assessment of nuisance value included potential loss of

reputation to the defendant. But he also testified that he had “never worked as a

defense lawyer, so I would speculate as to what they do.” He had “no

information” regarding whether “Gerber had done any projections to see what

kind of damage a public trial on this incident might cause to their ability to do

business in the baby industry, whether or not they prevailed in the lawsuit.” He

had “no idea what motivated” Gerber in deciding whether to pursue the lawsuit to

its end.

In response to the prosecutor’s objection to this opinion testimony, the

court expressed this concern: “If the suggestion is or at least with this witness’s

opinion, Mr. Novak, that this was more than nuisance value, he does not, as I

asked him to define it, take into that definition loss of reputation to Gerber Foods.

They may well feel that this was a nuisance case, that they could defeat it, but that

67

in the process they would lose substantial income based on the loss and faith of

other customers. So not only as to the pacifier but as to their other products, and

he does not know to what extent that calculation would enter into the total value

that Gerber agreed would be sufficient to make the case go away.” After hearing

argument from both sides, the court sustained the prosecutor’s objection to the

question “whether this witness believes that settlement was more than for nuisance

value.” It made clear, however, that either side could argue to the jury whether

the large settlement was merely for nuisance value.

Defendant contends the court erred in not allowing Novak to express his

opinion regarding nuisance value. This question, too, comes within the trial

court’s discretion, reviewed for abuse of that discretion. (People v. McDowell

(2012) 54 Cal.4th 395, 426.) We see no abuse of discretion. Attorney Novak

admitted he had never been a civil defense attorney and did not know what factors

motivated defendants to settle cases. He did not consider potential loss of

reputation in his definition of “nuisance value,” but he had no information or

expertise to support his apparent assumption that corporate defendants and their

attorneys do not do so. Obviously, $710,000 is a lot of money, and defendant

could argue to the jury that Gerber did not settle the case for that amount only for

its nuisance value. But the trial court had discretion to conclude that Novak had

no particular expertise that would assist the jury.

Moreover, whether Gerber settled the lawsuit for more than nuisance value

(perhaps suggesting it believed the lawsuit had merit), while probably relevant,

was not particularly important. The prosecution’s penalty phase case against

defendant was very different from the case Gerber faced. When Gerber settled the

lawsuit, defendant had not yet murdered her husband to collect on a life insurance

policy, a murder that made the earlier death of her insured daughter far more

suspicious. The record does not indicate whether Gerber was even aware that

68

defendant had insured the baby’s life. (The trial court sustained defendant’s

objection to the prosecutor’s asking Novak whether Novak was aware of the life

insurance policy when he represented defendant.) Gerber also was unaware of Dr.

Knauss’s report. Accordingly, whether Gerber believed the lawsuit it faced was

meritorious had little relevance to the jury’s determination whether defendant

murdered her daughter. Any error would have been harmless.

d. Instructional claims

Defendant contends the court committed two errors in instructing the jury.

First, she argues that if her deposition testimony was only admissible to

show “consciousness of guilt,” the court erred in failing to so instruct the jury.

However, as discussed above (pt. II. C. 2. c.), her deposition testimony was

admissible as an exception to the hearsay rule. Accordingly, it was not admitted

for a limited purpose such as consciousness of guilt, but for any relevant purpose.

Second, defendant contends the court failed to instruct properly regarding

the evidence that she murdered her daughter, apparently on the basis that it did not

instruct that a juror may consider that evidence only if the juror found beyond a

reasonable doubt that she committed the murder. (See People v. Robertson (1982)

33 Cal.3d 21, 53-54.) However, the court instructed the jury that “evidence has

been introduced for the purpose of showing that the defendant has committed the

following criminal acts: Murder and solicitation of murder, which involved the

express or implied use of force or violence. Before a juror may consider any

criminal act as an aggravating circumstance in this case, a juror must first be

satisfied beyond a reasonable doubt that the defendant did in fact commit the

criminal act. A juror may not consider any evidence of any other criminal act as

an aggravating circumstance.” Immediately thereafter, the court defined

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reasonable doubt. Defendant does not explain how these instructions were

insufficient. We see no error.

3. Admission of Another Item of Other Crimes Evidence

The prosecution’s pretrial notice of aggravating evidence included

“defendant’s post-arrest solicitation of the murder of and/or assault upon People’s

witnesses Erlinda Allen and Palmira Gorham.” Some of the taped conversations

that the prosecution offered into evidence contain references to Allen (who went

by the name “Linda”) as well as Gorham. Defendant objected to the references to

Allen. After reviewing the transcripts, the trial court overruled the objection. It

found the discussion about Allen was “part of the conversation regarding

elimination of witnesses. Even though it’s not a charged offense, it does tend to

suggest that that’s what she intended to do to carry it out.”

Accordingly, the jury heard the following. Erlinda Allen was an inmate

whom investigators had interviewed regarding this case. She had once been

housed either with or next to defendant in county jail and later served time at a

prison for women in Chowchilla. In a taped conversation with investigators, Hall

said that defendant had told her she had received a letter from Chowchilla.

Defendant “want[ed] some people to do somethin’ to Linda . . . in prison and stuff

like that.” Hall said that someone had told defendant that “when you have drug

debts in prison, if you don’t pay, they . . . go get somebody blood that’s HIV or

AIDS positive and shoot you in the back with it. And that’s what she wants

somebody to do to Linda.” Hall had the impression that defendant expected that

she (Hall) would get some friends to do this. In a conversation between Hall and

defendant recorded on May 10, 2002, defendant said that at Chowchilla, “they

have their own system. They have their own accountability over there. You know

what I mean?” Later in that conversation, defendant said she had “friends at

70

Chowchilla.” In later conversations between Hall and defendant, defendant

referred to getting “those two out of the way” (in context referring to Allen and

Gorham), said in reference to Allen that “you know she’s playing herself out.

Right?” and said that Allen had “already buried herself.”

For two reasons, defendant contends the court erred in admitting the

evidence. We see no abuse of discretion. (People v. Jones, supra, 51 Cal.4th at p.

380.)

First, defendant argues that Allen did not actually testify at the trial. While

correct, this circumstance makes no difference. Defendant had notice that the

prosecution intended to rely on this evidence. Penalty phase evidence of other

crimes is not limited to crimes against witnesses who testify at the trial.

Second, defendant contends there was insufficient evidence she committed

a qualifying crime against Allen. Only “criminal activity by the defendant which

involved the use or attempted use of force or violence or the express or implied

threat to use force or violence” is admissible. (§ 190.3, factor (b).) Evidence

under section 190.3, factor (b), is “limited to evidence of conduct that

demonstrates the commission of an actual crime, specifically, the violation of a

penal statute.” (People v. Phillips, supra, 41 Cal.3d at p. 72.) Although the

evidence regarding defendant’s intentions as to Allen was not as compelling as the

evidence regarding Gorham, the trial court had discretion to conclude that, in

context, a reasonable jury could conclude that defendant’s many comments about

Allen to Hall constituted the solicitation of a crime of violence against Allen.

(§ 653f; see People v. Wilson (2005) 36 Cal.4th 309, 328.)

Moreover, any error in this regard would have been harmless. The

references to Allen pale in significance compared to the compelling evidence that

defendant first sought to dissuade Gorham from testifying and later solicited her

murder, and even that evidence was far less aggravating than the circumstances of

71

Frank’s murder and the evidence of defendant’s earlier murder of her daughter.

We see no reasonable possibility the penalty verdict would have been different had

the court ordered all references to Allen redacted from the recorded conversations

the jury heard. (People v. McDowell, supra, 54 Cal.4th at p. 434.)

4. Asserted Violation of Confrontation Rights

Defendant contends her right to confront witnesses was violated on three

occasions at the penalty phase.

First, defendant contends admission of Hall’s statements to law

enforcement agents prejudiced her at the penalty phase. At defendant’s request,

during the penalty phase, Hall testified again, this time outside the jury’s presence.

Again she denied any memory of the conversations regarding this case. The court

again found untruthful her claim not to remember. It found no reason, and

defendant expressed none, to require her to testify again in front of the jury. Later,

the jury heard tape recordings of Hall’s conversations with investigators and

defendant, authenticated by law enforcement witnesses. As discussed in part

II. B. 2. b., ante, because Hall testified, defendant’s right to confront her was not

violated. We see no need for the court to have required her to testify a second

time in front of the jury. Defendant had already confronted Hall at the guilt phase

and again outside the jury’s presence during the penalty phase. She could have

but did not ask that Hall testify again in the jury’s presence.

Moreover, any error would have been harmless. Defendant’s recorded

conversations with Hall and her videotaped meeting in jail with Detective Valdez,

posing as the fictitious middleman Antonio Davis — evidence presented through

witnesses whom defendant confronted — provided far more vivid and convincing

evidence of defendant’s solicitation of Gorham’s murder than Hall’s statements to

the investigators.

72

Second, defendant challenges a portion of the testimony regarding the

autopsy performed on her daughter, Alicia. Dr. Wallace Carroll testified that he

and his staff performed the autopsy. He had “viewed the body and returned for the

view of the organs and so forth and reviewed all the dictation and so forth.” He

testified that Alicia had two teeth when she died, specifically, the two lower front

teeth. On cross- and redirect examination, he clarified that Dr. Ducale, an

assistant who performed the actual autopsy, had made the observation and

recorded the note in the autopsy report regarding the teeth. He did not himself

observe the teeth.

Defendant contends that the statements regarding Alicia’s teeth were

“testimonial” under Crawford, supra, 541 U.S. 36, and, because she had no

opportunity to cross-examine Dr. Ducale, her confrontation rights were violated.

She did not object on this basis at trial but, because the trial predated Crawford,

she may make this argument. (People v. Pearson, supra, 56 Cal.4th at pp. 461-

462.) The contention, however, lacks merit.

Objective observations in an autopsy report, such as the number and

location of the decedent’s teeth, that are not made with a primary purpose of

aiding a criminal investigation, are not testimonial under Crawford, supra, 541

U.S. 36. (People v. Edwards, supra, 57 Cal.4th at pp. 704-706; People v. Dungo

(2012) 55 Cal.4th 608, 619-621; see Dungo, at pp. 621-627 (conc. opn. of

Werdegar, J.), 629-633 (conc. opn. of Chin, J.).) As we explained in Dungo,

autopsy reports are used not only for criminal investigation and prosecution but

also for other purposes. “For example, the decedent’s relatives may use an

autopsy report in determining whether to file an action for wrongful death.”

(Dungo, at p. 621.) This example likely applies here. Defendant and her then

husband likely used the autopsy report in their wrongful death action against

Gerber. In any event, the autopsy report was not prepared with a primary purpose

73

related to criminal investigation. And certainly Dr. Ducale did not note the

number and location of the teeth with the primary purpose to further a criminal

investigation. “In summary,” to adapt our discussion in Dungo to this case, Dr.

Carroll’s “description to the jury of objective facts about the condition of victim

[Alicia’s] body, facts he derived from [Dr. Ducale’s] autopsy report . . . , did not

give defendant a right to confront and cross examine [Dr. Ducale].” (Ibid.)

Finally, defendant contends a portion of the prosecution’s cross-

examination of Dr. Vicary, the psychiatrist who testified on defendant’s behalf,

violated her right to confront her daughter, Autumn. This issue arose under the

following circumstances.

Outside the jury’s presence, the prosecutor alerted the court that

defendant’s attorney had asked him to contact Thomas, Autumn’s father and

defendant’s former husband, to make Autumn available to testify for the defense.

The prosecutor said that Thomas had “expressed to me his vehement objection that

his daughter be dragged through this in any way.” He told Thomas that he would

represent “to the court and defense counsel that I would make Autumn available,”

and that she probably would have to testify. Thomas agreed to bring her to court.

The prosecutor also said that if defendant did call Autumn as a witness, “I believe

it opens the door to cross-examination of Autumn regarding her role in the death

of Frank Rodriguez the night that he died. She gave us a statement the same day

that the defendant was arrested wherein she basically told us that there was a

special bottle of Gatorade for Frank, that she was not allowed to have any, and that

her mother asked her to help feed Frank the Gatorade, and she did in fact help feed

Frank the Gatorade the last time he was alive.” The prosecutor believed this

evidence would be relevant if Autumn testified on defendant’s behalf.

The prosecutor later clarified that Autumn had made three statements, all of

which he had provided the defense in discovery. The first two were largely

74

consistent with each other and stated what he had represented. In the third, much

more recent, statement, “her story had changed significantly.” Because of this

change, and because of “concerns about her emotional state being involved as a

witness for the prosecution in a death penalty case involving her mother,” he had

decided not to call Autumn as his own witness. But he argued that, if defendant

called her as a witness, he could cross-examine her about her earlier statements

and, if necessary, admit them as prior inconsistent statements.

Defense counsel argued that defendant had a right to call Autumn as a

witness even over Thomas’s objection, and that if Autumn’s testimony were

narrow enough in scope, the prosecutor should not be allowed to cross-examine

her regarding these statements. The court agreed defendant had the right to call

Autumn as a witness. It also tentatively indicated that if defendant did call her as

a witness, the prosecutor could cross-examine her regarding her prior statement. It

agreed, however, to hold a hearing on the question.

The next day, Thomas addressed the court and expressed concerns about

Autumn’s testifying. While sympathetic with Thomas’s concerns, the court ruled

that defendant had the right to call her as a witness. The prosecutor stated that if

her testimony were limited and not too emotional, he “would refrain, in the

interest of [Thomas’s] concerns and also concerns I have for Autumn, from going

into [her prior statements], although I really want to reserve my final decision until

I see just where direct goes.”

Autumn then testified very briefly in front of the jury as a defense witness.

She said she “would like it for you [the jury] not to execute [defendant] and make

it so I can see her.” The prosecutor did not cross-examine her.

Later, Dr. Vicary testified for defendant. On direct examination, he said he

based his expert opinion on various sources of information, including interviews

with defendant, her mother, her sister, and her cousin. Among the many

75

documents he reviewed in forming his opinion was Dr. Romanoff’s “very

thorough and very lengthy” psychological evaluation of defendant. When asked

whether certain factors would prevent defendant from being a loving mother, he

responded that he “found her to be the most emotional and the most animated

when she was talking about her children. She said in all her life, none of her

relationships had ever worked, and that she had only two happy experiences, the

birth of her two little girls.” History that her relatives supplied indicated that

“defendant was a very attentive, loving, supportive mother.”

On cross-examination, Dr. Vicary reiterated that he had relied on Dr.

Romanoff’s evaluation, which was based partly on defendant’s own statements.

The prosecutor cross-examined Dr. Vicary extensively about this evaluation,

including various lies that defendant had told Dr. Romanoff as reported in the

evaluation. At one point, the prosecutor asked whether Dr. Romanoff had

confronted defendant with a police report that “indicated that her daughter had

been interviewed and had told the police that her mother had fed her . . . step-

father Gatorade and that she had been told by her mother she couldn’t have any of

that Gatorade.” Dr. Vicary testified that Dr. Romanoff had so confronted

defendant. The explanation defendant gave Dr. Romanoff for not letting Autumn

have any Gatorade was “because money was so tight and we needed the Gatorade

for him.” Dr. Vicary agreed that this was another lie that defendant had told Dr.

Romanoff.

Later, the prosecutor cross-examined Dr. Vicary regarding his opinion that

defendant was a loving mother. He asked whether Dr. Vicary was aware that

Autumn had told investigators that the night Frank died, “her mother made him

drink a whole bottle of red Gatorade,” and that she (Autumn) “had helped her

mother feed him the Gatorade.” Dr. Vicary answered that he was aware of that

and said that defendant’s using her nine-year-old daughter as an unwitting

76

accomplice in the murder was a “horrible, indefensible act.” However,

“considering all the data,” this circumstance did not alter his opinion that

defendant was a loving and supportive mother.

Defendant contends that the prosecutor’s cross-examining Dr. Vicary

regarding Autumn’s statements violated her right to confront Autumn. Again, she

did not object on this basis at trial, but she can argue that the testimony violated

her rights under Crawford, supra, 541 U.S. 36.

If Autumn’s statements had been offered and used as substantive evidence

for their truth — that is, if the prosecution had used these statements as affirmative

evidence to show aggravating circumstances of the crime — state law would

clearly have been violated. The statements were hearsay and no exception to the

hearsay rule appears. But the prosecutor did not offer or use the statements as

substantive evidence but for a nonhearsay purpose that California law has long

permitted.

Under state law, an expert such as a psychiatrist may rely on various

sources of information, including hearsay, in forming an opinion, and a party may

question that expert about that information to test the expert’s credibility. “A

party ‘may cross-examine an expert witness more extensively and searchingly than

a lay witness, and the prosecution was entitled to attempt to discredit the expert’s

opinion. [Citation.] In cross-examining a psychiatric expert witness, the

prosecutor’s good faith questions are proper even when they are, of necessity,

based on facts not in evidence.’ ” (People v. Wilson, supra, 36 Cal.4th at p. 358,

quoting People v. Dennis (1998) 17 Cal.4th 468, 519.) This court explained the

reasons for this rule long ago. “ ‘ “Once an expert offers his opinion, however, he

exposes himself to the kind of inquiry which ordinarily would have no place in the

cross-examination of a factual witness. The expert invites investigation into the

extent of his knowledge, the reasons for his opinion including facts and other

77

matters upon which it is based [citation], and which he took into consideration;

and he may be ‘subjected to the most rigid cross-examinationconcerning his

qualifications, and his opinion and its sources [citation].” (Italics added.)’ ”

(People v. Nye (1969) 71 Cal.2d 356, 374-375.)

The prosecutor used Autumn’s statements in cross-examining Dr. Vicary

exactly and only as this rule permits. Dr. Vicary based his opinion on many

hearsay sources, including interviews with defendant and Dr. Romanoff’s

evaluation. Under state law, the prosecutor was entitled to explore with Dr.

Vicary occasions in which he had reason to believe defendant had lied, to attempt

to discredit his reliance on defendant’s other statements, and to attempt to discredit

Dr. Vicary’s opinion that defendant was a loving mother by establishing that he

maintained that opinion despite his knowledge of Autumn’s statements.

Contrary to defendant’s contention, in arguing the case to the jury, the

prosecutor cited Autumn’s statements only for this nonhearsay purpose. Indeed, at

defense request, the court conducted a hearing outside the jury’s presence

regarding how the prosecutor could discuss Autumn’s statements in front of the

jury. The prosecutor agreed he could not use these statements as substantive

evidence but only to challenge Dr. Vicary’s credibility. After this hearing, in

argument to the jury, the prosecutor referred to the statements in discussing how

much weight the jury should give defendant’s evidence in mitigation.

Specifically, he argued that Dr. Vicary’s opinion that defendant was a good

mother should not be credited when he adhered to that opinion despite knowing of

Autumn’s statements. He did not argue that Autumn’s statements constituted

substantive evidence of aggravating circumstances of the crime.

The court did not give an instruction limiting the use the jury could make of

this cross-examination. Defendant did not request one, and the court has no duty

to give a limiting instruction absent a request. (People v. Maury (2003) 30 Cal.4th

78

342, 394.) As it was, the jury merely heard a few questions regarding Autumn’s

statements during a lengthy cross-examination of the defense expert and a brief,

limited mention in the prosecutor’s argument regarding that expert’s credibility.

Defense counsel could reasonably not have wanted the court to give a limiting

instruction, which might have suggested to the jury that, logically if not legally,

the evidence was aggravating.

We need not decide whether and, if so, how Crawford, supra, 341 U.S. 36,

and its progeny have affected the rule permitting cross-examination of experts for

this nonhearsay purpose. Under the unusual facts of this case, we see no denial of

defendant’s opportunity to cross-examine Autumn. Knowing of Autumn’s prior

statements (and presumably of the rule permitting wide-ranging cross-examination

of expert witnesses), defendant called Autumn as her own witness. She had full

opportunity to examine her on her statements, either at that time or later. That she

did not take advantage of this opportunity is understandable; if she had actually

confronted Autumn about the statements, the jury could have considered them for

their truth and not merely as they bore on Dr. Vicary’s credibility, and the jury

would likely have credited them. From defendant’s perspective, no doubt, the less

said of those statements, the better. But she did have the opportunity to examine

Autumn in any way she may have wished.

In any event, any improper use of Autumn’s statements would have been

harmless. We see no reasonable possibility the jury’s penalty decision turned on

whether it believed defendant gave Autumn some of the Gatorade to give to Frank.

Or, to state the equivalent (People v. Gonzalez (2006) 38 Cal.4th 932, 961), any

error would have been harmless beyond a reasonable doubt.

79

5. Argument and Instructions Regarding the Mitigating Effect of an

Emotional or Mental Disturbance

The trial court instructed the jury regarding the statutory factors it should

consider in its penalty determination, including factor (d) of section 190.3:

“Whether or not the offense was committed while the defendant was under the

influence of extreme mental or emotional disturbance.” It also gave the expanded

catchall instruction under section 190.3, factor (k), that we recommended in

People v. Easley (1983) 34 Cal.3d 858, 878, footnote 10. Specifically, it

instructed the jury to consider “any other circumstance which extenuates the

gravity of the crime, even though it is not a legal excuse for the crime, and any

sympathetic or other aspect of the defendant’s character or record that the

defendant offers as a basis for a sentence less than death, whether or not related to

the offense for which she is on trial.”

Defendant contends the court erred in referring to an “extreme” mental or

emotional disturbance because the reference prevented the jury from considering a

mental or emotional disturbance that was less than extreme. We have repeatedly

rejected the contention because the catchall instruction permits the jury to consider

any evidence the defendant offers in mitigation, including any lesser mental or

emotional disturbance. (E.g., People v. Moore (2011) 51 Cal.4th 386, 416-417;

see Blystone v. Pennsylvania (1990) 494 U.S. 299, 308 [upholding a similar

Pennsylvania instruction against a similar attack for similar reasons]; Boyde v.

California (1990) 494 U.S. 370, 381-386 [upholding a catchall instruction

arguably narrower than the one given here].)

Defendant argues that the prosecutor’s argument to the jury was misleading

and made it reasonably likely the jury believed it could not consider in mitigation

any mental or emotional disturbance that was less than extreme. We disagree.

The prosecutor argued that defendant had presented no evidence of extreme

80

mental or emotional disturbance under section 190.3, factor (d). Indeed, he argued

there was no “evidence in this case of any mental disease or intoxication. Dr.

Vicary didn’t talk to you about any mental disease. He didn’t give any clinical

diagnosis she was pathological in some sense or psychotic or [had] no impulse

control. She has no such mental disease.” This was a fair comment on the

evidence. “Nothing in the prosecutor’s argument or the court’s instructions . . .

precluded the jury from considering the evidence of defendant’s mental

impairments, whether under factor (d) (to the extent jurors disagreed with the

prosecutor’s assessment of the impairments as less than extreme), section 190.3,

factor (h) (referring to ‘mental disease or defect’ as potentially impairing

defendant’s ability to appreciate the criminality of [her] conduct or conform it to

the law’s requirements) or the catchall factor (k).” (People v. Moore, supra, 51

Cal.4th at p. 416.) Indeed, the prosecutor specifically told the jury that under the

“catchall provision,” it could “consider any other extenuating circumstance that

you find to be present in this case.”

“As defendant was neither prevented from introducing evidence of mental

impairment, nor precluded from arguing its relevance and force as mitigation, or

from having it considered as such, we see no infringement on defendant’s rights

under the Fifth, Sixth, Eighth or Fourteenth Amendment to the United States

Constitution.” (People v. Moore, supra, 51 Cal.4th at pp. 416-417.)

6. Denial of the Automatic Motion to Modify the Verdict

Defendant contends the court erred in denying her automatic motion to

modify the jury’s verdict of death. “In ruling on defendant’s application for

modification of the verdict, the trial court must reweigh the evidence; consider the

aggravating and mitigating circumstances; and determine whether, in its

independent judgment, the weight of the evidence supports the jury’s verdict.

81

[Citation.] On appeal, although the trial court’s ruling is subject to independent

review, we do not make a de novo determination of penalty.” (People v. Brady

(2010) 50 Cal.4th 547, 588.)

Defendant’s written motion to modify the verdict contained a supplemental

report by Dr. Vicary stating, in part, Dr. Vicary’s belief that defendant was

genuinely remorseful for the crime. In arguing the motion, defense counsel

referred to the report, including its opinion regarding defendant’s remorse. The

court interjected: “How do you square what the doctor has said, Dr. Vicary’s

[supplemental] report . . . , where he says the defendant does have remorse for the

murder of her husband . . . ? There’s been no indication of remorse at all during

the trial, and in fact it’s hard to believe that there would be any remorse. He was

only married for a few months when she created the circumstances under which he

received a $250,000 life insurance with her as a beneficiary, and two months after

that roughly attempts to kill him through the use of loosening the gas connection,

which also endangered not only her husband but also the community around her

husband in the event that there had been an explosion, then attempting to poison

him with oleander poisoning, and on the failure of that a week later poisoning him

for a long period of time with antifreeze. And I have to say it is the coldest killing

I’ve ever seen. Most of the murders, and most of the cases we have are murder

cases in this court, over the past 20 years I’ve never seen a colder heart. She

seemed to have no care for the agony that she put her husband through, and the

sole goal being to make a profit in his death. So I don’t see how the doctor’s

opinion squares with any of the evidence that I’ve seen throughout this trial.”

After the parties argued the matter, the court permitted defendant to address

it personally, and she did so at length. Thereafter, the court denied the motion in a

detailed oral ruling that was also memorialized in a written order filed the same

day.

82

Defendant contends the court erred in several regards. Because she failed

to object on these — or any — grounds, and because the modification hearing

postdated our decision in People v. Hill (1992) 3 Cal.4th 959, she has forfeited

these claims. (People v. Brady, supra, 50 Cal.4th at p. 588.) Moreover, the claims

lack merit.

Defendant contends “the trial court failed to follow the legal requirements

in denying the motion.” On the contrary, except possibly by considering Dr.

Vicary’s supplemental report, it followed the legal requirements precisely. It

expressly recognized its duty “to reweigh the evidence of aggravating and

mitigating facts and to determine whether in the court’s independent judgment the

weight of the evidence supports the jury verdict.” It “reviewed the testimony

presented through an examination of the transcript as well as the court’s own

extensive notes, has reassessed the credibility of witnesses and evaluated the

probative value and force and weight of the evidence and has reviewed the

exhibits.” It found the prosecution witnesses credible and the proof of defendant’s

guilt “overwhelming.” It also found, under its independent review, that “the jury’s

implicit finding that the circumstances in aggravation substantially outweigh the

circumstances in mitigation, warranting the penalty of death as to defendant

Angelina Rodriguez, is overwhelmingly supported by the evidence.” It reviewed

all of the statutory aggravating and mitigating factors, including the catchall factor

provided in section 190.3, factor (k). It concluded: “In reviewing all of the

evidence available pursuant to section 190.3 of the Penal Code, and in carefully

and separately weighing the aggravating and mitigating factors, this court finds

that the aggravating evidence as to defendant Angelina Rodriguez . . . did so

substantially outweigh the mitigating evidence that it warrants the imposition of

death instead of life without parole as determined by the jury.”

83

It is true, as defendant argues, that the court is supposed to consider only

the evidence before the jury. (People v. Brown (1993) 6 Cal.4th 322, 337.) But to

the extent, if any, the court considered, at defendant’s request, Dr. Vicary’s

belated opinion regarding remorse (to reject that opinion), any error could not

have prejudiced defendant. The court considered no other evidence not before the

jury.

Defendant contends the court “minimized the mitigating factors or ignored

them entirely while exaggerating the aggravating factors and giving them undue

weight.” It did not do so. It viewed the factors differently than defendant would

have it do, but it did consider all the evidence and reached a reasonable

conclusion. The court must consider all of the evidence, but it need not give any

particular weight or, indeed, any weight to any particular evidence offered in

mitigation. (People v. Scott (1997) 15 Cal.4th 1188, 1222.)

It appears that, after engaging in some give and take with defense counsel

and defendant, the court read a prewritten ruling denying the motion. Defendant

contends this shows the court prejudged its decision and failed to consider the

arguments at the hearing. “We disagree. The practice of formulating tentative

rulings in advance of argument and reducing those tentative rulings to writing is

commonplace and unobjectionable. [Citing People v. Hayes (1990) 52 Cal.3d

577, 644-645.] . . . ‘To do so does not mean that the court is unalterably bound by

the writing or that it will not amend or even discard the writing if counsel’s

arguments persuade the court that its tentative views were incorrect. Nothing in

the record indicates that the trial court failed to give due consideration to defense

counsel’s argument at the hearing.’ (Id. at p. 645.)” (People v. Medina (1995) 11

Cal.4th 694, 783.) The court apparently wanted to ensure that if it denied the

motion, it did so without inadvertently omitting any of the technical requirements.

(See People v. Seaton (2001) 26 Cal.4th 598, 696.)

84

Defendant also contends the court’s comments when defense counsel cited

Dr. Vicary’s supplemental report showed it improperly considered her lack of

remorse as an aggravating factor. However, those comments showed only that it

rejected defendant’s claim of remorse as a mitigating factor, not that it considered

lack of remorse in aggravation. Moreover, the court could properly have

considered in aggravation the facts it cited. The court did not cite defendant’s

mere failure to express remorse; it cited her actions showing overt remorselessness

at or near the time of the crime, a proper aggravating circumstance. “Overt

remorselessness is a statutory sentencing factor in that context, because factor (a)

of section 190.3 allows the sentencer to evaluate all aggravating and mitigating

aspects of the capital crime itself. Moreover, there is nothing inherent in the issue

of remorse which makes it mitigating only. The defendant’s overt indifference or

callousness toward his misdeed bears significantly on the moral decision whether

a greater punishment, rather than a lesser, should be imposed. [Citation.] [¶] On

the other hand, postcrime evidence of remorselessness does not fit within any

statutory sentencing factor, and thus should not be urged as aggravating.” (People

v. Gonzalez (1990) 51 Cal.3d 1179, 1232; see People v. Cain (1995) 10 Cal.4th 1,

77 [“From the evidence that defendant, still bloody from the killings, returned to

his friends and boasted of what he had just done, the jury could infer his attitude

during the crimes was one of callousness towards the victims.”].)

Here, the court cited defendant’s actions, rather than mere words. After

defendant tried to kill her husband by loosening the gas valves, she tried a second

time, giving him enough oleander to send him to the emergency room. Her

husband became very ill but did not die. Rather than feel remorse for what she put

him through, she tried a third time, this time giving him several times the amount

of poison (both oleander and antifreeze) needed to kill him. These actions overtly

85

showed this was truly a remorseless murder or, as the court put it, among the

“coldest” of killings. These were relevant aggravating circumstances of the crime.

The court properly denied the motion to modify the verdict.

7. Other Contentions

Defendant makes several other contentions, most of which we have

repeatedly rejected. We see no reason to reconsider our previous decisions.

Except regarding evidence of other crimes, jurors need not find aggravating

factors true beyond a reasonable doubt; no instruction on burden of proof is

needed; except for the verdict itself, the jury need not achieve unanimity; and the

jury need not make written findings. (People v. Rountree (2013) 56 Cal.4th 823,

862.) “CALJIC No. 8.88’s use of the words ‘so substantial,’ its use of the word

‘warrants’ instead of ‘appropriate,’ its failure to instruct the jury that a sentence of

life is mandatory if mitigation outweighs aggravation, and its failure to instruct the

jury on a ‘presumption of life’ does not render the instruction invalid.” (Id. at pp.

862-863.) “Intercase proportionality review is not required.” (Id. at p. 862.)7

“ ‘International law does not prohibit a sentence of death rendered in accordance

with state and federal constitutional and statutory requirements.’ ” (Rountree, at p.

863.)


7

We do provide intracase proportionality review. (People v. Rountree,

supra, 56 Cal.4th at p. 860.) Defendant does not specifically request such review,
but it would not aid her. She murdered her husband by poisoning him on her third
attempt to collect on a life insurance policy she insisted he take out, then tried to
dissuade a witness from testifying and later solicited that witness’s murder. The
jury could reasonably have found that several years earlier, defendant similarly
murdered her infant daughter to collect on another life insurance policy she had
taken out on that daughter. The sentence of death is not disproportionate to
defendant’s personal culpability. It does not shock the conscience. (People v.
Rountree
, supra, at p. 862.)

86

Contrary to defendant’s argument, the cumulative effect of the asserted

errors does not require reversal of the death judgment. Defendant argues that we

should excuse any failure by defense counsel to object to any jury instruction. We

have found no instructional claim forfeited. She also argues that “this court should

review all errors on the merits, rather than invoking procedural bars, because death

is the ultimate penalty.” However, procedural rules, such as the statutory

requirement that a party object to evidence at trial in order to challenge its

admissibility on appeal (Evid. Code, § 353), apply to capital cases as well as other

cases. (People v. Richardson (2008) 43 Cal.4th 959, 984, fn. 11.)

Finally, “Defendant asks that we deem incorporated by reference any

argument [she] has raised in [her] petition for habeas corpus but which, in

reviewing that petition, we may decide should have been raised on appeal. We

decline to do so. The rules of court do not permit such incorporation. [Citation.]

Moreover, ‘habeas corpus cannot serve as a substitute for an appeal, and, in the

absence of special circumstances constituting an excuse for failure to employ that

remedy, the writ will not lie where the claimed errors could have been, but were

not, raised upon a timely appeal from a judgment of conviction.’ ” (People v.

Richardson, supra, 43 Cal.4th at p. 1038.)

III. CONCLUSION

We affirm the judgment.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.

87



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rodriguez
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S122123
Date Filed: February 20, 2014
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: William Pounders

__________________________________________________________________________________

Counsel:

Karen Kelly, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Joseph P. Lee and William H. Shin, Deputy Attorneys General, for Plaintiff
and Respondent.











Counsel who argued in Supreme Court (not intended for publication with opinion):

Karen Kelly
P.O. Box 6308
Modesto, CA 95357
(209) 552-0988

William H. Shin
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2038


Opinion Information
Date:Docket Number:
Thu, 02/20/2014S122123