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.
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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.
56
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.
60
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
61
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
63
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.
65
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
69
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-examination’ concerning 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, 02/20/2014 | S122123 |
