Filed 8/2/12



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S067353

v.

IVAN JOE GONZALES,

San Diego County

Defendant and Appellant.

Super. Ct. No. SCD114421



Defendant Ivan Joe Gonzales was convicted of murdering Genny Rojas.1

The jury found as a special circumstance that the murder was intentional and

involved the infliction of torture.2 However, it was unable to reach a penalty

verdict. Another jury was impaneled, and the second penalty phase trial resulted

in a death verdict.3


1

Penal Code, section 187, subdivision (a). Further statutory references are to

the Penal Code.
2

Section 190.2, subdivision (a)(18).

3

Following defendant?s conviction and sentence, his wife Veronica was

separately tried for Genny?s murder. (People v. Gonzales (2011) 51 Cal.4th 894,
910, fn. 8.) We have affirmed her conviction and death sentence. (Id. at p. 959.)

1




I. FACTS

A. Guilt Phase

1. Prosecution

Genny Rojas was four years old when she died in July 1995. She and her

siblings had been removed from their mother?s custody in April 1994, because

their mother was abusing drugs and neglecting the children. They were placed

with their grandmother, Utilia Ortiz. While in Ortiz?s care, Genny appeared to the

social worker to be happy and well cared for. However, she was a difficult child,

fearful and prone to tantrums. Ortiz soon placed Genny in the care of Ortiz?s

daughter Anita and her husband Victor Negrette. After four months, the Negrettes

decided that Genny had needs they were unable to meet. They returned her to

Ortiz toward the end of 1994. In February 1995, Ortiz sent Genny to live with

another daughter, Veronica, and her husband Ivan Gonzales, the defendant in this

case. The Gonzaleses had six children of their own and lived in a two-bedroom

apartment in Chula Vista.

On the evening of July 21, 1995, two neighbors were standing outside a

window of the Gonzales apartment. They heard a loud bang, or thud, as if

something had hit a wall inside the apartment, immediately followed by the sound

of a child crying. Defendant came to the window, looked out, and shut the

window forcefully. He emerged from the apartment, slammed the door, and

walked off toward a nearby liquor store. He appeared to be angry and in a hurry.

Defendant entered the liquor store, where he was a regular customer, at 8:45 p.m.

He asked for and received credit, purchased some grocery items, and left after five

or 10 minutes.

Around 9:00 that evening another neighbor, Patty Espinoza, heard Veronica

Gonzales screaming for help. Veronica said her niece had been burned in the

bathtub. Patty came out of her apartment and asked how anyone could be burned

2




in the bathtub. Veronica asked Patty to come with her, and not call the police. In

the Gonzales apartment, Patty saw a child lying on the floor. Defendant was

nearby. Patty told them she did not know how to perform cardiopulmonary

resuscitation (CPR), but that her sister Naomi did. Patty ran to get Naomi, who

also lived in the building, and told the Gonzaleses to call 911. Veronica, however,

repeatedly said not to call the police.

Naomi Espinoza had heard the commotion, and came out of her apartment

upon hearing that a child was not breathing. She saw defendant carrying a little

girl. Naomi, a nurse?s assistant, had CPR training. She asked defendant what

happened, and he replied that the child had burned herself in the bathtub.

Questioned further by Naomi, defendant explained that the child did not know

how to regulate the water. Naomi told him to take the child into Patty?s

apartment. Defendant did so, and put her down on the rug.

Naomi testified that she knew the child was dead, ?just by looking at her.?

Nevertheless, she checked for a pulse and attempted CPR. The body was cold, the

lips white. Naomi noticed scars on the body and a bald spot on the head. Shortly

after the first police officers arrived, Naomi left the apartment.

A 911 call was placed around 9:20 p.m. Sergeant Barry Bennett responded,

along with other officers. As he approached the apartment, Veronica met him and

directed him inside. Bennett found a little girl lying on the floor. Checking her

vital signs, he detected no pulse or breathing. He did not attempt CPR. The body

was very cold and felt rigid, indicating to him that the child had been dead for

some time. The shirt she was wearing was dry, as were her skin and hair. While

he was examining the body, Veronica told Bennett she had put the child in the tub,

run the water, and gone to the kitchen to cook dinner. After about 20 minutes, she

returned to the bathroom and found the child under the water. Bennett noted that

defendant sat nearby, and described his demeanor as ?nonchalant.?

3




Bennett called in homicide and child abuse investigators. It was obvious to

him that the death was not accidental and the child had been abused. The entire

lower part of her body appeared to have been burned, and there were numerous

other injuries.

Fireman John Miller arrived at the apartment at 9:25 p.m. He too assessed

the child, and found her cold and without a pulse. He prepared to perform CPR,

but found the jaw clenched and difficult to move. Miller concluded that rigor

mortis had set in.

A medical examiner came to the scene around 1:00 a.m. He performed a

preliminary external examination of the victim, who was identified as Genevieve

Rojas. He noted a second- to third-degree burn from her waist to her feet, and

other burns on her face, arms, and torso. Rigor mortis, which begins to develop

within an hour or two of death, was present. An autopsy was conducted the next

morning. Genny was thin and small, but adequately nourished. Her body was

covered with injuries.

A large burned area on top of Genny?s head had only partially healed. This

injury was infected, and at least a week old. It could have been caused by hot

liquid, possibly on more than one occasion. The back of the head was also burned.

There was hair loss, both in the burned area and elsewhere. A similar burn

appeared on the back of the neck and shoulder. The skin on Genny?s ears had

been eroded, exposing the cartilage. There were also abrasions at the end of her

eyebrows and on the bridge of her nose. These injuries could have been caused by

rough fabric tightly bound around her head.

There was bruising around both eyes, probably inflicted within a day or two

of death. Pinpoint hemorrhages in the right eye were typical of strangulation. The

cheekbone, shoulder, and neck were bruised. There were recent burns on both

cheeks, in a grid pattern matching the grill on a hairdryer found in the Gonzales

4




apartment. Similar burns appeared on the shoulders and left bicep. Genny?s lip

was lacerated and torn away from the gum. Numerous small injuries on her face

could have been inflicted with a hairbrush. She had suffered a subdural

hematoma, the result of a blow or shaking within a day of her death, and an older

brain hemorrhage that had been caused by a violent blow.

Genny?s neck bore a ligature mark, extending upward behind her left ear.

This injury was a week or two old. A similar scar ran from her jawbone to the

underside of her chin. There were triangular scars on top of her left shoulder. On

her arms were parallel scars typical of the marks left by handcuffs. Handcuffs

matching the marks on Genny?s arms were recovered from the Gonzales

apartment. Her arms and wrists also had abrasions, which could have been caused

by binding with a cord. Bruises on the inside of her thighs suggested she had been

grabbed from behind with a great deal of force. Ulcerated areas on both heels in

the area of the Achilles tendon were consistent with erosion from binding.

The most significant injury, and the cause of death, was the burn on the

lower part of Genny?s body. It appeared to be an immersion burn, with spared

areas behind the knees, in the groin area, and on the buttocks indicating that

Genny had been held down in a fetal position in the tub, with her arms out of the

water. Death would have occurred within two to three hours. There was no

evidence of drowning. Genny?s thymus gland was atrophied, a sign of prolonged

stress. It was clear to the examiner that she had been chronically and repeatedly

abused.

A pediatric burn expert confirmed that the burn was an immersion injury.

He estimated the water temperature at 140 degrees or higher. It would have been

seven or eight inches deep, and Genny must have been held down firmly, leaning

forward a little. The burn injury could have been inflicted in 10 seconds or less; it

could not have occurred gradually. With treatment, the chances of survival would

5




have been around 90 percent. However, within one to four hours of infliction,

Genny would have gone into shock. Death could occur quite rapidly thereafter in

a child of her age.

The burn on Genny?s scalp could have been caused by hot water striking

the top of her head and flowing onto her neck and shoulders. The expert did not

believe it was accidentally inflicted, or that it could have been caused by Genny

tipping over a pot of hot water on the stove.

Officer Bennett went to the Gonzales apartment shortly after he examined

Genny?s body in Patty Espinoza?s apartment. The bathtub in the Gonzales

bathroom appeared to be dry, as did the bathroom floor. Human tissue

subsequently found in the tub was consistent with Genny?s DNA, and not with

defendant?s or Veronica?s. It took 15 minutes to fill the tub with hot water. When

full, the water was eight and a half inches deep, and 140 degrees. At that

temperature, it would have taken six to eight seconds to cause the burn on Genny?s

lower body.

In one bedroom, the area behind the door was cordoned with a string

fastened to the doorknob at one end, and to the knob of a nightstand placed against

the wall at the other. In this triangular area there was an indentation in the

wallboard, 36 inches from the floor. There were bloodstains in the indentation,

and on the wall around and below it. A blanket behind the door was stained with

matter consistent with Genny?s DNA.

The closet in this bedroom yielded a considerable amount of bloodstain

evidence. The closet doors were off their tracks, and leaned into the closet. A

metal hook was fastened to the closet bar mounting bracket. On the floor beneath

the hook was a wooden box, measuring about two feet in all three dimensions. A

hole in one of the closet doors afforded a view of the hook. On the wall of the

closet, below the hook and above the box, were many bloodstains. Some were

6




created by hair wiping against the wall, others were the result of blood being flung

against the wall. There was blood on the closet bar, the hook, and the cloth

fastening the hook to the bar. There was a bloody footprint on the wall, but no

handprint. There was blood on the edge of the box, and both blood and feces in

the box. The interior of the closet door was spattered with blood.

The bloodstains were consistent with a scenario in which a bleeding child

Genny?s size was suspended from the hook in the closet, rubbing some blood on

the surfaces around her and casting some off as she swung back and forth, bracing

herself with her feet on the box and the wall. Genny?s DNA was consistent with

blood samples taken from the closet.

Defendant was interviewed by detectives at 9:45 a.m. on the morning after

Genny?s death. A videotape of the interview was played for the jury. He said

Genny had not been toilet trained, and they had problems with her ?goin? to the

bathroom a lot, in her pants and on the floor.? The previous evening, he and

Veronica had put Genny in the bath together, and he had ?set the water on warm.?

Only they and their children were in the apartment. After 10 minutes or so

Veronica told defendant to check on Genny, but he was distracted by a loud bang

and checked on the other children instead. He went to the store and bought milk,

bread, and beer, returning in about 10 minutes. Veronica was making dinner.

After another 10 minutes or so, she went to check on Genny, and screamed for

defendant. He found Veronica taking Genny out of the bathtub. He tried to

perform CPR, but it wasn?t helping, so Veronica went to get help from Patty next

door.

Defendant said Genny had a lot of marks on her body, which he attributed

to her habit of peeling and picking at her own skin. The burn on her head had

happened when she knocked over a pot of boiling water. They had not gotten a

Medi-Cal card for Genny from Veronica?s mother, so they tried to care for the

7




burn themselves. Genny would rub her head against the walls. Defendant said the

ligature mark on Genny?s neck was caused by ?neighbor kids? pulling on a candy

necklace. He had not noticed the hair dryer burns on Genny?s face.

Defendant admitted that he and Veronica made Genny sleep in the closet

three or four times. He also said he put her in the box a couple of times, to scare

her. Defendant claimed the hook above the box was also meant to scare Genny,

but he denied ever tying her to the hook. The hole in the closet door was used to

hold a stick on which they would dry clothing, according to defendant. He said

they never handcuffed Genny, though Veronica tied her hands with cloth once.

He insisted they did not hold Genny down in the hot water.

The jury also watched a videotape of preliminary hearing testimony by

defendant?s oldest child, Ivan, Jr., who was eight years old when he testified. 4 He

said Genny did not sleep with the other children, but in his parents? room or in the

bathtub. Her hands and feet were tied when she was in the tub. The children?s

bedroom had no doorknob, and Ivan, Jr., could look through the hole in the door

and see into the bathroom. There was a sliding lock on the outside of the bedroom

door. 5 On the night Genny died, Ivan, Jr., and the other children were locked in

their room. Ivan saw Genny in the bathtub, through the hole in the door. Then he

heard her screaming and crying, but he did not look again. He did not see his


4

In addition to the preliminary hearing videotape, the prosecutor played

audio- or videotapes of three prior interviews with Ivan, Jr. These interviews
included statements both consistent and inconsistent with Ivan, Jr.?s preliminary
hearing testimony. (See People v. Gonzales, supra, 51 Cal.4th at pp. 908-910.)
The preliminary hearing testimony is sufficient for purposes of our factual
synopsis here.
5

The physical evidence, and testimony by investigators, confirmed Ivan,

Jr.?s statements about the state of the bedroom door and the view through the hole
in the door.

8




father put water in the tub. After his mother screamed, his father came to the door

and told the children to stay in the room. His father seemed to be sad.

When Genny came to live with them, she had all her hair and no marks or

bruises on her face. Ivan, Jr., said she lost her hair when his mother burned her,

and pulled out her hair. He saw both his parents pulling her hair out, many times.

He added that he had watched through the hole in the door on many occasions

when his mother and father burned Genny with hot water in the bathtub. ?They

would put her in the tub and they would start putting hot water, and then a few of

her hairs would come off.? Genny would lie down in the tub, and his father would

hold her head down, with his mother helping. Hot water would come out of the

spout, and Genny would scream and cry. Ivan, Jr., never saw her get burned by a

pot of hot water on the stove.

Genny would scratch her head on the wall, and when she did his parents

would hit her with a belt. Ivan, Jr., said that Genny was potty trained and did not

have accidents going to the bathroom. He saw Genny in the closet in his parents?

room many times, with her hands tied. He saw her on the floor of the closet, and

also in the box. One time he saw Genny hanging in the closet, ?in a basket,? with

her hands tied and her feet off the ground.

The rest of the children ate in the kitchen, but Genny ate in the parents?

room. Sometimes Ivan, Jr., would give Genny food, when she was crying for it.

If his parents discovered this, they would hit him. Once they made him and his

siblings throw balls at Genny. Ivan, Jr., would ?throw it crooked? because he did

not want to hurt her.

Ivan, Jr., said his mother would usually get what she wanted if his parents

disagreed about something. He was afraid of his father, but not of his mother. He

thought his mother was afraid of his father, who hit her. However, his mother

often told his father what to do, and sometimes he would obey.

9




2. Defense

Juan Lozano, a nephew of Patty and Naomi Espinoza, testified that when

Genny?s body was brought into Patty?s apartment he tried to perform CPR, before

Naomi arrived. He had no difficulty moving Genny?s jaw in order to clear an

airway. Lozano said Genny was cold, with no pulse or breath. Her hair was

damp.

A social worker testified that on July 24, 1995, shortly after Genny?s death,

Ivan, Jr., told her that he didn?t hear Genny cry, but did hear her say ?ow,? and

then his mother had found her in the water. He said he was afraid of his father, but

not of his mother. He told the social worker that he did not see anyone hit Genny

and did not think his parents would hurt her. On subsequent meetings before the

preliminary hearing, he said nothing about Genny being abused. He did say that

Genny rarely came out of his parents? bedroom.

The rest of the defense case was primarily aimed at establishing that

Veronica was the dominant spouse in defendant?s marriage.6 The owner of a

grocery store near the Gonzales apartment testified that she saw defendant in the

store on a daily basis, and he was quiet and submissive. Veronica, on the other

hand, who came in monthly to cash her check, was assertive and outgoing. When

defendant was along he would stay behind Veronica, watching the children, and

let her do the talking. Veronica would tell him which brand of cigarettes she

would buy for him.

Guadalupe Baltazar, defendant?s sister, testified that she had seen Genny at

defendant?s apartment twice. The first time, about a month after she had come to


6

As noted at the outset, both defendant and Veronica were charged in

connection with Genny?s death, but they were tried separately.

10




live with them, she was playing with the other children and appeared normal. The

second time, shortly after the 4th of July, she had a towel wrapped around her

head. Baltazar knew Genny had burned her head, because she was present a

couple of weeks earlier when defendant came to their mother?s house and asked

for money to buy ointment. At the Gonzales apartment, Veronica took the towel

off and showed Baltazar the burn, which had formed a scab on Genny?s head and

shoulder. There were no cuts or scars on her face, arms, or legs.

The Gonzaleses had lived with Baltazar for a while, and she saw them on

social occasions. She never saw defendant verbally or physically abuse Veronica,

but once, as defendant was working on a car, Veronica angrily slammed the hood

on his head. She also pulled some wires out of the car and yelled at defendant,

who did not respond other than to tell her to ?knock it off.? Patricia Andrade,

another of defendant?s sisters, testified that Veronica was verbally and physically

abusive toward him.

Eugene Luna had supervised defendant when he worked as a garbage truck

driver. Luna had socialized with the Gonzaleses, and never saw defendant being

physically aggressive with his wife. He had seen Veronica on one occasion hit

defendant in the mouth with her fist, during an argument. His general impression

was that Veronica was in charge of the household and made the decisions.

Defendant once told Luna that Ivan, Jr., had seen Luna?s son kissing Veronica. He

asked Luna to talk to his son about this, but the son denied having an affair with

Veronica. Defendant had seemed nervous and embarrassed. Later, Luna?s son

admitted the affair and said a child had been born as a result. Defendant never

mentioned the matter again. About six months later the Gonzaleses moved and

Luna had no further contact with them.

Eugene Luna, Jr., testified that he had an affair with Veronica for a few

months when he was 16 or 17. On one occasion, defendant had challenged him

11




about the affair, and took a swing at him. Luna, Jr., swung back, knocked

defendant down, then helped him up. That was the end of the confrontation.

Veronica became pregnant and named Luna, Jr., as the father. Luna, Jr., once saw

Veronica become angry with defendant, throw a plate at him, and hit him in the

mouth. Another time, after a night of drinking, Veronica had lost her temper when

defendant tried to help her roll up a car window. She cursed at defendant and

kicked the dashboard of the car. Witnesses called the police, who ended up

spraying Luna, Jr., and defendant with mace, and arresting Veronica.

Lorena Peevler knew defendant because her ex-husband was defendant?s

best friend. Defendant was quiet and shy as a teenager. Lorena became friends

with Veronica, and the Gonzaleses lived with the Peevlers for a few months.

Veronica picked fights with defendant, yelling at him. She also hit him and

scratched him. Defendant tried to protect himself, but did not hit back. After one

fight, he ran away and climbed a utility pole. The police came to get him down.

Lorena saw Veronica as the boss in the relationship. Frank Peevler testified that

he and defendant grew up together. Defendant?s parents were not abusive.

Defendant was shy and timid around girls. Frank also viewed Veronica as the

dominant partner in the Gonzales relationship.

3. Rebuttal

On rebuttal, the prosecutor called Martha Halog, a neighbor of the

Gonzaleses? in the apartment building where Genny came to live. Halog had

overheard an argument in which defendant verbally abused Veronica. Victor

Negrette, Veronica?s brother-in-law, testified that defendant was a jealous and

overprotective husband. He and Veronica argued a lot, and on one occasion she

asked Negrette to come get her because defendant had hit her. Negrette heard

defendant yell and curse at Veronica many times. He had also seen defendant

yanking one of the Gonzales boys by the arm, hitting him with a plastic bat, and

12




kicking another son. Negrette once saw defendant angrily punch out the windows

of a car parked near the Gonzales apartment.

B. Penalty Phase

The jury that found defendant guilty of murder was unable to reach a

penalty verdict, dividing eight to four. The penalty phase was retried before a new

jury. The prosecutor relied on evidence of the crime similar to the showing made

at the guilt phase. Defendant recapitulated his guilt phase defense, and also

provided witnesses testifying to his good behavior in prison, his character when he

was growing up, his Catholic upbringing, his children?s love for him, and the

effect his execution would have on them, his siblings, and his parents.

II. DISCUSSION

A. Guilt Phase Issues

1. Pretrial Motions

Defendant challenges the trial court?s denial of a series of pretrial motions.

These rulings require no extended discussion, because they conform with

established California law and defendant develops no arguments persuading us to

change our settled views. Thus:

Individual and sequestered voir dire of prospective jurors in capital cases is

not required. (People v. McKinnon (2011) 52 Cal.4th 610, 632-633; People v.

Gonzales, supra, 51 Cal.4th at p. 956.)

The court properly denied defendant?s motion for a jury instruction that a

sentence of life without the possibility of parole would mean that he was actually

ineligible for parole. (People v. Salcido (2008) 44 Cal.4th 93, 164; People v.

Kennedy (2005) 36 Cal.4th 595, 641.)

The court?s denials of defendant?s motion to set aside the indictment and

motions on related grounds by Veronica, in which defendant joined, were not error

on any of the following grounds: inclusion of inapplicable aggravating factors

13




(People v. Lomax (2010) 49 Cal.4th 530, 593); failure to designate factors as

aggravating or mitigating (People v. Gonzales and Soliz (2011) 52 Cal.4th 254,

334); failure to require written findings on aggravating factors (id. at p. 333);

failure to require proof beyond a reasonable doubt as to aggravating factors, the

balance of aggravating and mitigating factors, and the appropriateness of death as

the penalty (ibid.); lack of intercase proportionality review (ibid.); 7 use of the

adjectives ?extreme? and ?substantial? in section 190.3 factors (Gonzales and

Soliz, at p. 334); asserted vagueness of the section 190.3 factors (Gonzales and

Soliz, at p. 334); or prosecutorial discretion over whether to seek the death penalty

(People v. Gonzales, supra, 51 Cal.4th at p. 958.) Defendant makes no attempt to

explain how any of these factors may have been a proper ground for setting aside

the indictment. He merely relies on general constitutional arguments that have

consistently been rejected by this court.

The trial court properly denied defendant?s motion to strike the torture-

murder special-circumstance allegation. Defendant contends the definition of

torture murder is unconstitutionally vague and fails to adequately distinguish

between death-eligible torture-murderers and other torture-murderers. We have

held otherwise. (People v. Chatman (2006) 38 Cal.4th 344, 394; People v. Barnett

(1998) 17 Cal.4th 1044, 1161-1163.) Defendant claims the defects in the special

circumstance were particularly problematic under the facts of his case and the

instructions given to the jury. These matters were beyond the scope of his pretrial

motion to strike.


7

Defendant also claims that intracase proportionality review is not available.

However, this court does, when the question is raised, undertake intracase
proportionality review to determine whether the penalty is disproportionate to the
defendant?s personal culpability. (People v. Kelly (2007) 42 Cal.4th 763, 800.)

14




Defendant moved for the jury venire to be drawn from the South Bay

Judicial District of San Diego County, where the crime was committed and where

he claimed there was a higher percentage of Latino residents. The trial court?s

denial of this motion was supported by law. (People v. Coddington (2000) 23

Cal.4th 529, 573-574; O?Hare v. Superior Court (1987) 43 Cal.3d 86, 93-97.)

Defendant offers no specific argument other than to claim, without reference to the

record, that it was unfair for defendants charged with homicides occurring in the

North County Judicial District to have juries drawn from that district, while those

charged with homicides in the South Bay Judicial District had juries drawn from

the entire county. He did not make this argument below, and it is not properly

before us on appeal.

Defendant also challenges the court?s denial of Veronica?s motion to quash

the jury venire, in which he joined. The motion was based on the exclusion of

noncitizen residents and felons, grounds that we have rejected. (People v. Pride

(1992) 3 Cal.4th 195, 227; People v. Karis (1988) 46 Cal.3d 612, 631-634.)

Finally, defendant claims the court erred by denying his motion for

supplemental discovery of the charging practices of the district attorney, which

was aimed at showing racial discrimination in the decision to pursue the death

penalty. Defendant concedes that he failed to provide a plausible justification

under People v. McPeters (1992) 2 Cal.4th 1148, 1171, and People v. Ashmus

(1991) 54 Cal.3d 932, 980, but asks us to reconsider those precedents. We decline

to do so. (See also In re Seaton (2004) 34 Cal.4th 193, 202-203.)

2. Defendant?s Waiver of His Right to Be Present

Defendant contends he did not validly waive his right to be present on four

occasions: the initial meetings with prospective jurors before the guilt phase and

again before the penalty phase retrial, and two sessions of voir dire exploring

prospective jurors? claims of hardship before the guilt phase.

15




Before trial, the court announced that it would use the jurors? lounge to

meet with the first group of 300 to 400 prospective jurors. The parties would then

return to the courtroom to go through the forms filled out by prospective jurors

claiming hardship. The court said that defendant might not want to be present for

the initial meeting in the jurors? lounge, and noted that defendants routinely

waived the right to be present for such proceedings. The court explained:

?He?s got a right to be present. If he wants to be, he will be. Most

defendants don?t want to do that. He will have to be ? he?ll be in custody. There

will be extra marshals around him. He won?t be in as secure a setting so there will

be extra security. He?ll be in waist chains and handcuffs which can, to some

extent, be covered up by clothes. But the overall picture that?s presented to the

jury isn?t going to be quite the same one that we would be able to do here in the

courtroom.?

Defense counsel said his client would waive the right to be present on that

day. The court told defendant what would be happening at the first meeting with

the venire. It advised him that he had the right to be present but extra security

would be required in the jurors? lounge, meaning that ?you?ll be in chains.?

Defendant said he was willing to give up his right to attend the proceedings in the

jurors? lounge. On the court day before the first meeting, defense counsel asked

the court to be sure the court?s records reflected that defendant?s presence was not

required, ?just so that he doesn?t end up sitting in a holding tank all day.?

At the meeting in the jurors? lounge, the court explained the selection

process, the time commitment that was required, and the bases for obtaining a

hardship exemption. Those requesting an exemption filled out a form and were

told to return in the afternoon. The remaining prospective jurors were introduced

to counsel, heard the charges against defendant, received some preliminary

16




instructions, and were given questionnaires to complete. The court told them that

defendant ?is not present today but will be present at every future hearing.?

In the afternoon, prospective jurors claiming hardship came to the

courtroom, and the court questioned some of them individually. This process

continued the next court day, which the court began by announcing that defendant

?is not present, having waived his presence for this initial phase of the jury

selection.? Ten jurors were not granted hardship exemptions. The court read

them the charges and gave them preliminary instructions. The court informed

them again that while defendant was not present, he would be at all future

hearings.

Before the penalty phase retrial, defense counsel reported that defendant

was again willing to waive his right to be present in the jurors? lounge for the

?mass group? of prospective jurors, and asked the court to put his waiver on the

record. The court again explained, more briefly this time, the nature of the

proceedings and asked defendant if he was willing to give up his right to be

present. Defendant said yes.

Defendant now claims his waivers were invalid, and notes that he never

waived his right to be present in court when the hardship voir dire was conducted

before the guilt phase. He argues that the court improperly required him to choose

between his right to be present and his right not to be shackled in front of the jury.

Defendant contends his constitutional rights to be present under the Sixth and

Fourteenth Amendments, and article I, sections 7 and 15 of the California

Constitution, were violated, as well as his statutory right to be present under

section 977, which could only be waived in writing. (? 977, subd. (b)(1).)

? ?Under the Sixth Amendment, a defendant has the right to be personally

present at any proceeding in which his appearance is necessary to prevent

?interference with [his] opportunity for effective cross-examination.? ?

17




[Citation.]) ?Due process guarantees the right to be present at any ?stage that is

critical to [the] outcome? and where the defendant?s ?presence would contribute to

the fairness of the procedure.? ? [Citation.] ? ?The state constitutional right to be

present at trial is generally coextensive with the federal due process right.

[Citations.]? [Citation.] Neither the state nor the federal Constitution, nor the

statutory requirements of sections 977 and 1043, require the defendant?s personal

appearance at proceedings where his presence bears no reasonable, substantial

relation to his opportunity to defend the charges against him. [Citations.]?

[Citation.] ?Defendant has the burden of demonstrating that his absence

prejudiced his case or denied him a fair trial.? [Citation.]? (People v. Blacksher

(2011) 52 Cal.4th 769, 799.)

Here, the trial court was too quick to declare that defendant would be

subjected to physical restraints if he chose to be present. It did not make the

required specific findings of manifest need for restraints. (See Deck v. Missouri

(2005) 544 U.S. 622, 633; People v. Duran (1976) 16 Cal.3d 282, 290-291.) It is

reasonable to conclude that defendant?s decision to be absent was influenced, in

part, by the prospect of being shackled.8 The court should also have secured a

written waiver, as required by statute. (? 977, subd. (b)(1).) Nevertheless, we

have rejected claims of error based on a defendant?s absence from jury screening

discussions. (E.g., People v. Rogers (2006) 39 Cal.4th 826, 855-856; People v.

Ervin (2000) 22 Cal.4th 48, 72?74; People v. Hardy (1992) 2 Cal.4th 86, 178.) In

any event, defendant fails to bear his burden of showing prejudice.


8

We note, however, that defendant did not object when the court mentioned

shackling, or propose less rigorous security measures to facilitate his presence at
the large meeting of prospective jurors.

18




Defendant does not contend he might have provided assistance to his

counsel during these essentially administrative jury selection proceedings. His

only claim of prejudice is that the prospective jurors may have gotten the

impression that he, charged with a horrible crime, ?callously did not bother to

show up at his own capital trial.? Such a speculative and peripheral consideration

is insufficient to establish a reasonable probability (People v. Watson (1956) 46

Cal.2d 818, 836) or a reasonable doubt as to the eventuality of a result more

favorable to defendant had he been present (Chapman v. California (1967) 380

U.S. 18, 87; Gonzales, supra, 51 Cal.4th at p. 953). Experienced defense counsel

saw no need for defendant?s presence. The prospective jurors were preoccupied

with the mechanics of filling out questionnaires. They were well aware of the

large number of venire members, and the sometimes tedious process of jury

selection. At the guilt phase, they were told by the court that defendant would be

present at all future proceedings, and he was. It is unlikely that the prospective

jurors at either phase thought any the less of defendant because he was not

personally present at this early stage of the proceedings.

3. Exclusion of Evidence That Veronica Was Abused as a Child

Defendant claims the court violated his fundamental right to present a

complete defense by refusing to allow him to introduce evidence that his wife

Veronica had witnessed and experienced child abuse in her own family, similar to

the abuse inflicted on Genny Rojas.9 Defendant contends this was circumstantial

evidence of third party liability, which did not amount to improper propensity or


9

Defendant asserts violation of his rights to produce witnesses in his defense

under the Sixth Amendment to the federal Constitution and article I, section 15 of
the California Constitution, as well as due process violations under the Fourteenth
Amendment, and article I, sections 7 and 15 of the state Constitution.

19




profile evidence. He alternatively argues that even if it was proper to bar this

evidence on state law grounds, the exclusion violated his federal constitutional

rights. Defendant further contends that if his murder conviction is upheld, the

torture-murder special circumstance should be vacated because the evidence of

Veronica?s childhood experiences would have negated the intent-to-kill element.10

At trial, defendant made an offer of proof consisting of four documents and

an expert witness. He presented a juvenile court petition from August 1980,

stating that Veronica?s mother, Utilia Ortiz, had brought her 16-year-old daughter

Mary (who eventually became Genny?s mother) to a sheriff?s station and stated

she could not control her. Mary had scratches and bruises on her arms, legs,

shoulders and back, which she said were the result of her mother?s beatings with

sticks and boards. Mary said the bruises were minor compared to others her

mother had inflicted.

Defendant also offered reports detailing interviews with a cousin, an uncle,

and a friend of Veronica?s. The cousin recalled that Ortiz drank heavily and was

?scary? when drunk, starting fights with her husband. Mary was a stubborn and

difficult child, while Veronica and Anita were the favored daughters. The cousin

was unable to recall specific incidents, but in August 1980 a social worker had

noted the cousin?s report that Ortiz had hit Mary with a broomstick and lit a pile of

newspapers at her bare feet, causing Mary to run away. The cousin said that once,

when drunk, Ortiz had ?pulled the girls by their hair and pulled them around the

house.?


10

Defendant also contends he should have been allowed to present this

evidence at the penalty phase, a claim we discuss in part II.B.2., post.

20




Veronica?s uncle said that Mary had shown him burns Ortiz inflicted on

her. Ortiz yelled and cursed at the girls, but Veronica had been spared to some

degree because she was the favorite of Ortiz?s husband. Ortiz fought with various

family members when drunk. Veronica?s friend had heard Veronica and Mary

describe their abuse in 1986. Mary remembered that Ortiz would ?tie them back

to back and set their legs on fire.? Veronica said she also remembered that. When

asked if Ortiz had tortured them, the girls said ?yes.?11

Defendant also proffered the testimony of Dr. Patricia Perez-Arce, a

neuropsychologist with expertise in the social development of Latino children. At

a hearing held under Evidence Code section 402, Dr. Perez-Arce testified that

defendant?s family exemplified traditional Mexican-American values. Veronica?s

family did not share these values, due to her mother?s drunkenness and violence.

Her mother had provided a model of poor impulse control and violent reaction to

stressful or threatening situations. Those experiences would have influenced

Veronica in dealing with her own frustrations as a mother.

Perez-Arce conceded that Veronica?s biological children were well cared

for, but opined that Genny?s arrival in the household created stress that caused

Veronica to become abusive. Genny may have become the target of that abuse

because she had been imposed on Veronica by her mother, because Veronica and

Mary had an ?adversive? relationship, and because, according to defendant,

Veronica suspected him of having had an affair with Mary and perhaps of

fathering Genny. On cross-examination, Perez-Arce said she had no data on how


11

Defendant?s offer of proof did not specify which, if any, of the witnesses

mentioned in the documents would be called to testify. Because we dispose of his
arguments on other grounds, we need not consider whether there may have been
foundational or hearsay problems with the proposed evidence.

21




frequently abused children became abusers themselves, but thought it occurred

less than half the time. She also acknowledged that Latino men, like men in

general, were more likely to physically abuse their children than Latina women.

The trial court, after extended consideration, decided defendant had

proffered character evidence that was inadmissible under Evidence Code section

1101. The court further ruled that applying this state rule of evidence did not

violate defendant?s federal constitutional rights to present a defense, because the

evidence of Veronica?s childhood abuse, while probative to some degree, was

weak and speculative insofar as it reflected on her behavior toward Genny.

We review the court?s rulings under Evidence Code section 1101 for abuse

of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1003.) Defendant

argues that his proffer did not amount to ?evidence of a person?s character or a

trait of his or her character (whether in the form of an opinion, evidence of

reputation, or evidence of specific instances of his or her conduct) . . . offered to

prove his or her conduct on a specified occasion.? (Evid. Code, ? 1101, subd. (a).)

He notes he did not offer evidence that Veronica had committed prior acts of child

abuse. However, the prohibition on character evidence is not so limited. The

statute is aimed at evidence of a person?s ?propensity or disposition to engage in a

certain type of conduct,? when ?offered as a basis for an inference that he behaved

in conformity with that character on a particular occasion.? (Cal. Law Revision

Com. com., 29B pt. 3B West?s Ann. Evid. Code (2009 ed.) foll. ? 1101, p. 221.)

This is precisely what defendant sought to establish by offering evidence of

Veronica?s childhood experiences. He wanted the jury to infer that she, not he,

was responsible for abusing Genny due to a propensity that developed during her

youth.

Defendant seeks to distinguish People v. Walkey (1986) 177 Cal.App.3d

268, which the trial court found persuasive. There, the prosecution called an

22




expert to testify that Walkey, who had been an abused child himself, fit the profile

of a battering parent. The court held that this was impermissible character

evidence. (Id. at p. 276.) Defendant insists he offered no similar ?profile?

evidence. However, to the extent he sought to establish that Veronica modeled her

conduct on her mother?s behavior, he necessarily claimed that Veronica?s

childhood experiences had resulted in a character trait predisposing her to abuse

Genny. The court properly ruled that this evidence was barred by Evidence Code

section 1101. (See People v. McWhorter (2009) 47 Cal.4th 318, 372-373 [Evid.

Code, ? 1101 applies to third party culpability evidence]; People v. Abilez (2007)

41 Cal.4th 472, 502-503 [same]; People v. Davis (1995) 10 Cal.4th 463, 501

[same].)

Defendant contends the evidence showed that Veronica had learned abusive

methods of discipline as a child by observing her mother. He compares this case

to People v. Griffin (2004) 33 Cal.4th 536, 582-583, where the prosecution

presented evidence that Griffin had learned slaughtering techniques while working

at a meat company, which he then used on the murder victim. However, no

specialized techniques were employed in the abuse of Genny Rojas. The more

bizarre forms of abuse she suffered (being hung from a hook in a closet and

branded with the grill of a hair dryer) required no expertise, nor were they similar

to the abuse to which Veronica was allegedly exposed. Likewise, the burns

inflicted on Genny with hot water were neither technically arcane nor similar to

what Veronica experienced. As for the beating, tying, and handcuffing Genny

suffered, the employment of these forms of abuse takes no training. Griffin has no

application here.

23




Defendant further argues that the proffered evidence was admissible under

two of the exceptions recognized in Evidence Code section 1101, subdivision

(b).12 He claims Veronica?s childhood experiences were relevant to establish her

motive or her identity as Genny?s killer. (See People v. Roldan (2005) 35 Cal.4th

646, 705-706.) Defense counsel made this argument below, but the trial court was

not persuaded. It reasoned that, at bottom, defendant was trying to prove Veronica

was likely to have abused Genny because of a character trait that developed from

Veronica?s earlier experience. The court was correct. A person?s own prior

misconduct may be admissible to show that the charged offense is so similar as to

support an inference that the same person committed both acts, or to show that in

light of the prior conduct the person must have harbored a similar intent or motive

during the charged offense. (See Roldan, supra, 35 Cal.4th at p. 706; People v.

Ewoldt (1994) 7 Cal.4th 380, 402-403.) Here, however, defendant did not offer

specific acts of misconduct by Veronica as circumstantial evidence of her motive

or identity. Rather, he wanted to show that she had internalized the abuse she saw

and experienced as a child, causing her to become an abusive mother. This is pure

character evidence, well beyond the scope of Evidence Code section 1101,

subdivision (b).

The trial court also properly rejected defendant?s contention that precluding

him from introducing Veronica?s family history of child abuse would violate his


12

Evidence Code section 1101, subdivision (b) provides in pertinent part that

evidence of a person?s past misconduct is admissible ?when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident . . .) other than his or her disposition to
commit such an act.?

24




federal constitutional rights to present a defense.13 As the high court explained in

Holmes v. South Carolina (2006) 547 U.S. 319 (Holmes), a capital case: ? ?[S]tate

and federal rulemakers have broad latitude under the Constitution to establish

rules excluding evidence from criminal trials.? [Citations.] This latitude,

however, has limits. ?Whether rooted directly in the Due Process Clause of the

Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of

the Sixth Amendment, the Constitution guarantees criminal defendants ?a

meaningful opportunity to present a complete defense.? ? [Citation.] This right is

abridged by evidence rules that ?infring[e] upon a weighty interest of the accused?

and are ? ?arbitrary? or ?disproportionate to the purposes they are designed to

serve.? ? [Citation.]? (Holmes, supra, 547 U.S. at pp. 324-325.)

?While the Constitution thus prohibits the exclusion of defense evidence

under rules that serve no legitimate purpose or that are disproportionate to the ends

that they are asserted to promote, well-established rules of evidence permit trial

judges to exclude evidence if its probative value is outweighed by certain other

factors such as unfair prejudice, confusion of the issues, or potential to mislead the

jury. [Citations.] Plainly referring to rules of this type, we have stated that the

Constitution permits judges ?to exclude evidence that is ?repetitive . . . , only

marginally relevant? or poses an undue risk of ?harassment, prejudice, [or]

confusion of the issues.? ? [Citations.]

?A specific application of this principle is found in rules regulating the

admission of evidence proffered by criminal defendants to show that someone else


13

Defendant relies on the Sixth and Fourteenth Amendments. He also cites

article I, sections 7 and 15 of the California Constitution, but offers no authority
supporting a state constitutional claim of error.

25




committed the crime with which they are charged. See, e.g., 41 C.J.S., Homicide

? 216, pp. 56-58 (1991) (?Evidence tending to show the commission by another

person of the crime charged may be introduced by accused when it is inconsistent

with, and raises a reasonable doubt of, his own guilt; but frequently matters

offered in evidence for this purpose are so remote and lack such connection with

the crime that they are excluded?); 40A Am.Jur.2d, Homicide ? 286, pp. 136-138

(1999) (?[T]he accused may introduce any legal evidence tending to prove that

another person may have committed the crime with which the defendant is

charged . . . . [Such evidence] may be excluded where it does not sufficiently

connect the other person to the crime, as, for example, where the evidence is

speculative or remote, or does not tend to prove or disprove a material fact in issue

at the defendant?s trial? (footnotes omitted)) . . . .? (Holmes, supra, 547 U.S. at pp.

326-327; see also People v. Abilez, supra, 41 Cal.4th at p. 503.)

Here, the trial court found that the evidence of Veronica?s childhood

experiences was weak and speculative, so much so that it would not be admissible

against Veronica at her own trial. That finding was amply supported. The

incidents of abuse suffered by Veronica and Genny were distinctly dissimilar.

Defendant offered to show that Veronica?s mother, in drunken rages, beat her

teenage daughter Mary, lit newspapers at Mary?s feet, pulled her daughters? hair,

and tied Veronica and Mary together back to back and ?set their legs on fire? in

some unspecified manner. There was scant evidence of the extent of the injuries

actually inflicted in these incidents, and no indication they were life threatening.

The trauma suffered by the four-year-old Genny was of another kind entirely.

Genny was not merely beaten, tied up, and burned. She sustained hematomae,

severe hair loss, and extensive bruising and scarring including multiple injuries

inflicted by restraints. Her fatal scalding was the culmination of a prolonged and

persistent course of concerted abuse. While we do not minimize the seriousness of

26




the abuse described in defendant?s offer of proof, his attempt to causally link the

systematic torture of a small child with stories about intermittent mistreatment of

Veronica and her sister when they were teenagers does not withstand scrutiny.

The exclusion of this evidence was fully consistent with the principles set out in

Holmes, supra, 547 U.S. 319, and resulted in no error affecting either the murder

conviction or the torture-murder special circumstance.

4. Exclusion of Evidence That Veronica Disliked Genny?s Mother

Defendant sought to introduce two statements Veronica made about Mary

Rojas, Genny?s mother, when Veronica was interviewed by a detective the

morning after Genny?s death. Early in the interview, the detective asked where

Mary lived. Veronica said Mary was in a rehabilitation facility, and when asked

why, replied ?Cause she?s a little bitch . . . .? Veronica then explained, in a

rambling statement, ?she just don?t care about nothing . . . . She would, she was

losing her kids. The kids got taken away you know. Her husband would, they?re

very bad you know . . . whatever you know doing drugs. . . .? Much later in the

interview, the detective pressed Veronica about why she did not know Genny was

being scalded in the bath, asking, ?can you tell me she never screamed??

Veronica replied, ?She does not talk. Her damn mother. I?m not saying . . . I?m

saying her damn mother gets her so goddamn freaked out . . . . She can be in

there. You can ask the kids. The kids would even go and mess with the water . . .

and would she talk? No.?

Defendant claimed these statements reflected Veronica?s animosity toward

Mary, which would in turn support a conclusion that she acted on those feelings of

animosity by singling out Genny for abuse. The court excluded the evidence, on

the ground that it was too speculative to be relevant. The court noted there was no

evidence linking Veronica?s antipathy for her sister with her feelings toward

27




Genny. Again, the court indicated it did not believe the evidence would be

admissible against Veronica to prove motive at her own trial.

The court?s ruling was within the broad scope of its discretion to determine

relevance. (See People v. Cash (2002) 28 Cal.4th 703, 727.) ?Speculative

inferences are, of course, irrelevant.? (People v. Stitely (2005) 35 Cal.4th 514,

549-550; see also, e.g., People v. Rundle (2008) 43 Cal.4th 76, 129-130.)

Defendant points out that the Gonzales household was already a crowded one

when Genny arrived, the couple faced economic challenges, and Genny was a

troubled child who was difficult to handle. These facts tend to reflect a

disciplinary motive for the abuse suffered by Genny. However, Veronica?s

statements about Mary included no indication of a desire to harm Genny. When

the court made its ruling, no evidence offered by the defense suggested Veronica?s

feelings about Mary led her to retaliate against Genny. Defendant notes that

subsequently, in her proffered testimony on Veronica?s family background, Dr.

Perez-Arce opined that one factor in Veronica?s behavior toward Genny may have

been the ?adversive relationship? between Mary and Veronica. That opinion,

however, appears to be purely speculative. Dr. Perez-Arce had not interviewed

Veronica, and offered no factual support for her view.

Defendant argues that the court?s exclusion of Veronica?s statements

violated his federal constitutional rights to present a defense.14 The argument

fails. As discussed above in part II.A.3., ante, the exclusion of weak and


14

Defendant relies on the Sixth and Fourteenth Amendments. Again, he

refers to the state Constitution but offers no supporting authority. Defendant?s
claim that the exclusion of this evidence at the penalty phase violated his
constitutional rights is discussed post, in part II.B.2.

28




speculative evidence of third party culpability does not infringe on a defendant?s

constitutional rights. (Holmes, supra, 547 U.S. at pp. 326-327.)

5. Admission of Ivan, Jr.?s Preliminary Hearing Testimony

Defendant raises a variety of challenges to the admission at trial of Ivan,

Jr.?s preliminary hearing testimony. He claims: (1) the testimony was barred by

Evidence Code section 1291; (2) the preliminary hearing court should have

protected the child by quashing his subpoena; (3) the trial court should have

protected the child by excluding the videotape of his preliminary hearing

testimony; (4) the trial court should have found the child incompetent to testify at

the preliminary hearing; (5) admission of the videotape violated defendant?s

confrontation clause rights; (6) the preliminary hearing court denied defendant his

right to a face-to-face confrontation with Ivan, Jr.; and (7) the preliminary hearing

court erroneously sustained an objection when defendant?s attorney questioned the

child about the consequences of lying. None of these claims has merit.

a. Evidence Code section 1291

Evidence Code section 1291 provides a hearsay exception for former

testimony when the witness is unavailable and ?[t]he party against whom the

former testimony is offered was a party to the action or proceeding in which the

testimony was given and had the right and opportunity to cross-examine the

declarant with an interest and motive similar to that which he has at the hearing.?

Defendant does not challenge the trial court?s ruling that Ivan, Jr., was unavailable

because of the trauma that he would suffer if made to testify against his parents at

their capital trials. Defendant?s contention is that he did not have a meaningful

opportunity to cross-examine Ivan, Jr., at the preliminary hearing because the child

was placed in foster homes after Genny?s death, and defense counsel was unable

to interview him or gain information about his mental condition.

29




Defendant refers to various information coming to light after the

preliminary hearing to support his argument that there were grounds for

challenging Ivan, Jr.?s credibility of which counsel were unaware. However,

?Both the United States Supreme Court and this court have concluded that ?when a

defendant has had an opportunity to cross-examine a witness at the time of his or

her prior testimony, that testimony is deemed sufficiently reliable to satisfy the

confrontation requirement [citation], regardless whether subsequent circumstances

bring into question the accuracy or the completeness of the earlier testimony.

[Citation.]? ? (People v. Wilson (2005) 36 Cal.4th 309, 343.) Here, the trial court

made it clear that any subsequently developed evidence reflecting on Ivan, Jr.?s

credibility could be introduced at trial.

Defendant notes that his counsel gained access to Ivan, Jr.?s therapy records

only after the preliminary hearing. Those records showed that, before the hearing,

the child?s therapist had made a note of a report by his foster mother that he and

his little brother had been ?kicking and hitting each other and also lying.? The day

before the hearing, he told his therapist that he had had an experience of seeing

double, and ?I thought it was my soul.? Beginning around the time of the hearing,

Ivan, Jr.?s social worker saw signs of depression and posttraumatic stress disorder.

At an unspecified time, the children?s attorney informed the juvenile court that he

was concerned about the foster mother violating a court order against asking Ivan,

Jr., about the case. The court instructed the social worker to tell the foster mother

not to ask such questions. After the preliminary hearing, similar evidence

developed: reports by Ivan, Jr., to his therapist of hallucinations, illusions, or

lapses in memory; and a diagnosis of posttraumatic stress disorder and depression

by a doctor who examined him to determine whether testifying at trial would be

harmful.

30




We are satisfied that defendant?s lack of access to this evidence did not

deprive him of a meaningful opportunity to cross-examine Ivan, Jr., at the

preliminary hearing. Defense counsel thoroughly questioned the child about the

differences between his preliminary hearing testimony and the earlier answers he

gave to the police and the district attorney when they interviewed him about the

events surrounding Genny?s death. This questioning by the authorities was far

more significant than any questions the foster mother may have asked, and it was

recorded. Defendant?s claim that he could have undermined Ivan, Jr.?s credibility

at the preliminary hearing by cross-examining the child about psychological issues

is unpersuasive. An eight-year-old child?s grasp of such issues is necessarily

limited. Ivan, Jr., had plainly been through a traumatic experience, and counsel

was free to explore the effects of that experience on his memory.

b. Harm to Ivan, Jr.

Next, defendant claims the court erred by admitting Ivan, Jr.?s videotaped

preliminary hearing testimony at trial, despite evidence that this would be

damaging to the child. Defendant provides us with no legal authority for this

argument, or for his standing to raise it. Neither did he offer any authority on

these points in his motion papers below. In any event, there was no error. The

trial court addressed defendant?s claims, finding that there was some risk of

damage to Ivan, Jr., from the use of his testimony, but that the risk was far

outweighed by the value of the videotape to the prosecution?s case. The court did

not abuse its discretion. Ivan, Jr.?s testimony had already been used against his

parents at the preliminary hearing. None of the experts to whom defendant now

31




refers stated directly that the mere presentation of a videotape of the testimony at

trial would cause undue harm.15

c. Ivan, Jr.?s Competence

Defendant also claims the trial court erred by finding that Ivan, Jr., had

been competent to testify at the time of the preliminary hearing. Under Evidence

Code section 701, subdivision (a), ?[a] person is disqualified to be a witness if he

or she is: [?] (1) Incapable of expressing himself or herself concerning the matter

so as to be understood, either directly or through interpretation by one who can

understand him; or [?] (2) Incapable of understanding the duty of a witness to tell

the truth.? Defendant relies, as he did below, on additional factors set out in a

dependency case, In re Basilio T. (1992) 4 Cal.App.4th 155 (Basilio T.). There,

the Court of Appeal stated: ?In addition to an awareness of the difference between

truth and falsehood, other prerequisites for competency as a child witness are the

capacity to observe, sufficient intelligence, adequate memory, the ability to


15

At a hearing on a motion to quash a subpoena for Ivan, Jr., to appear as a

witness at trial, Dr. Charles Marsh, a psychiatrist, testified that showing the
videotape at trial would not be a ?major trauma.? Ivan, Jr.?s therapist testified that
use of the videotape would ?probably,? or ?possibly? have the same effect as live
testimony, but then said, ?I?m not sure of that.? The therapist?s supervisor
testified that use of the videotape would be ?less traumatic in the short term [than
testifying] and could potentially . . . give him some psychological cushion to
rationalize how he thinks about his role in all of this down the road.?


All this testimony came in response to the prosecutor?s questioning, which

was aimed at establishing that live testimony would be no more harmful than the
videotape. When these witnesses testified, defense counsel did not attempt to
establish that admission of the videotape would be harmful. Counsel made this
argument only after the motion to quash was granted, advancing it in opposition to
the prosecutor?s motion to admit the videotape.


We note, as well, the absence of any indication in the record that Ivan, Jr.,

was aware the videotape was presented at trial.

32




communicate, and an appreciation of the obligation to speak the truth.? (Id. at p.

167, fn. 7.)16

At the hearing on the question of Ivan, Jr.?s competence, defendant called

Dr. Yanon Volcani, a child psychologist who had reviewed the documentary

record and the tapes of Ivan, Jr.?s preliminary hearing testimony and statements to

the police. Dr. Volcani had interviewed the child?s paternal grandparents, but not

the child himself or other caretakers. He testified that Ivan, Jr., had no perceptual

difficulties or attention deficit disorder, but that there was a ?significant

probability? that his memory of the events about which he testified was ?not

necessarily accurate,? due to the chaotic Gonzales household and the boy?s stage

of development.

On cross-examination, Dr. Volcani affirmed that Ivan, Jr., was not

incapable of understanding his duty to tell the truth, or unable to understand

questions and express himself in an understandable way. Questioned by the court,

the doctor declined to state a definite opinion on whether Ivan, Jr.?s memories

were accurate. On redirect examination by defense counsel, Dr. Volcani ?free

associated? a 68 percent likelihood that Ivan, Jr.?s preliminary hearing testimony

was ?influenced by other things than the actual events,? but said ?it doesn?t mean

they?re not accurate.?


16

In support of this proposition, the court cited only a treatise. (Meyers, The

Testimonial Competence of Children (1986-1987) 25 J. Fam.L. 287, 288.) We
express no view on whether the additional factors adduced in Basilio T., supra, 4
Cal.App.4th 155, are valid. That question has not been briefed, and as discussed
above, the trial court?s finding that the factors were satisfied was supported by the
evidence. We note, however, the general rule that the credibility of a witness is an
issue for the jury, and not a relevant factor in determining competence to testify.
(People v. Avila (2006) 38 Cal.4th 491, 589-590.)

33




The trial court ruled that defendant had not carried his burden of proving by

a preponderance of the evidence that Ivan, Jr., had been incompetent when he

testified at the preliminary hearing. Dr. Volcani clearly stated that the statutory

factors governing the competency determination were satisfied, and the court

found that opinion amply supported by the videotape of the child?s testimony.

Regarding the Basilio T. factor of whether Ivan, Jr., was able to distinguish truth

from falsehood, the court observed that the doctor?s testimony was ?less than

direct.? The court concluded that Dr. Volcani?s views reflected more on Ivan,

Jr.?s credibility than on his ?fundamental ability to distinguish truth from fiction.?

The court added that the videotape, the testimony of other experts on the motion to

quash, and the notes of Ivan, Jr.?s therapist confirmed its conclusion. It noted that

defendant was free to present evidence challenging Ivan, Jr.?s credibility.

We will uphold a trial court?s ruling on the competence of a witness in the

absence of a clear abuse of discretion. (People v. Avila, supra, 38 Cal.4th at p.

589.) No such abuse appears here. Though defendant claims Dr. Volcani?s

testimony on the impairment of Ivan, Jr.?s memory was uncontradicted, the doctor

expressly declined to say the child?s memories were inaccurate. The doctor?s

?free association? of a likelihood of unspecified influences on Ivan, Jr.?s testimony

lacked any basis in fact. Defendant?s reliance on cases barring the admission of

hypnotically aided testimony is misplaced. Nothing suggests that Ivan, Jr.?s

testimony was influenced by any such experience.

d. Confrontation Rights

Defendant contends the introduction of Ivan, Jr.?s videotaped testimony

violated his rights under the confrontation clauses of the federal and state

Constitutions in several respects. First, defendant asserts he could not effectively

cross-examine Ivan, Jr., at the preliminary hearing. However, ?the Confrontation

Clause guarantees only ?an opportunity for effective cross-examination, not cross-

34




examination that is effective in whatever way, and to whatever extent, the defense

might wish.? ? (Kentucky v. Stincer (1987) 482 U.S. 730, 739; see also People v.

Wilson, supra, 36 Cal.4th at p. 343; People v. Carter (2005) 36 Cal.4th 1114,

1172-1173.) As discussed above in part II.A.5.a., defendant had such an

opportunity. Defendant?s constitutional arguments fare no better than his statutory

arguments under Evidence Code section 1291.

Next, defendant claims the seating arrangement during the preliminary

hearing violated his confrontation rights when the videotape of Ivan, Jr.?s

testimony was played at trial. At the outset of the preliminary hearing, the

prosecutor asked the court for ?protective courtroom seating? for the juvenile

witnesses, noting he had filed a written motion that morning and provided copies

to defense counsel. In the motion, the prosecutor asserted that both Ivan, Jr., and

his brother Michael had expressed great fear of defendant and Veronica in

conversations with the police and members of the prosecutor?s office. He asked

that they be seated facing away from the defendants during the preliminary

hearing. The preliminary hearing court granted the motion, ordering that the

young witnesses be seated at an angle, not directly facing the defendants. The

podium for counsel, however, was placed so that the lawyers had eye contact with

the witnesses during questioning, and the witnesses were free to look around the

courtroom and make eye contact with defendants, if they desired. The court noted

that this arrangement had been discussed in chambers.

Veronica?s counsel objected on the ground that the arrangement violated

his client?s right of confrontation, expressing concern that the children had been

coached and that the interests of ?a search for the truth? called for the normal

seating arrangement. Counsel conceded, however, that if the prosecutor?s motion

was to be granted, the seating arrangement contemplated by the court was ?the

least intrusive way of handling it.? Defendant?s counsel adopted these arguments

35




and recited his reliance on the Sixth and Fourteenth Amendments, as well as the

California Constitution. The court noted that both defense counsel were

experienced, and expressed confidence in their ability to get at the truth. The court

said it was guarding against the intimidation of children ?of tender age,? and noted

that the defendants would be able to see and hear the witnesses, and would be

?within eye contact? if the witnesses wished to look at them.

Defendant relies on Coy v. Iowa (1988) 487 U.S. 1012, 1016, for the

proposition that ?the Confrontation Clause guarantees the defendant a face-to-face

meeting with witnesses appearing before the trier of fact.? As the high court noted

in Maryland v. Craig (1990) 497 U.S. 836 (Craig), however, that right has never

been held to be absolute, and Coy itself reserved the question whether exceptions

may exist. (Craig, at p. 844.) The Craig court recognized an exception in child

abuse cases, upholding a statute permitting the child victim to testify via one-way

closed circuit television, so long as the court makes a case-specific finding that the

child would be traumatized by testifying in the defendant?s presence, and the

child?s testimony is subject to adversarial testing through cross-examination.

(Craig, at pp. 855-857.)

Defendant argues that Craig is no longer viable. He notes its partial

reliance on Ohio v. Roberts (1980) 448 U.S. 56, and claims that since the Roberts

hearsay test was overruled in Crawford v. Washington (2004) 541 U.S 36, Craig?s

relaxation of the right to a face-to-face confrontation must also be deemed

obsolete. (See Craig, supra, 497 U.S. at pp. 848-849.) We disagree. Crawford

and its progeny are limited to ?testimonial? hearsay statements, and say nothing

about whether a witness who testifies in person must face the defendant.

(Crawford, at pp. 61, 68; Bullcoming v. New Mexico (2011) __ U.S. __ [131 S.Ct.

2705, 2713-2714]; see also People v. Seijas (2005) 36 Cal.4th 291, 303 [Crawford

did not affect admissibility of prior testimony by unavailable witness].) Craig

36




remains good law. Anticipating that conclusion, defendant claims the preliminary

hearing court erred by failing to make a case-specific factual finding of necessity

for an alternative arrangement for Ivan, Jr.?s testimony, as required under Craig.

Defendant observes that the prosecution made no factual showing to support its

claim that Ivan, Jr., and his brother feared their parents, and contends the court?s

concerns on this point were not based on any information specific to this case.

It is important to note that at the preliminary hearing, defendant had no

right to confront Ivan, Jr., personally. We have made it clear that the right to

confrontation is a trial right that does not apply with full force at a preliminary

hearing. (People v. Miranda (2000) 23 Cal.4th 340, 349.) Ivan, Jr.?s description

of the events on the night of Genny?s murder could have been presented through

hearsay testimony by police officers, without offending either the state or federal

Constitution. (Miranda, at pp. 348-349.) Thus, there was no occasion for the

preliminary hearing court to make Craig findings, and defense counsel did not

request them. Defendant, however, claims that when the videotape of the

preliminary hearing testimony was introduced at trial, the seating arrangement for

Ivan, Jr., violated his trial right to confront the witnesses against him. This is a

particularly artificial argument, insisting on Craig findings even though no context

for such findings ever arose. In any event, the claim fails on its merits.

In People v. Sharp (1994) 29 Cal.App.4th 1772, which involved the same

seating arrangement at trial as was employed at defendant?s preliminary

examination, the court noted that the arrangement ?resulted in only the most

minimal interference with appellant?s right to confront his accuser.? (Id. at p.

1783.) It concluded that this minor interference was justified by the state?s interest

in protecting the child witness and obtaining accurate testimony. While the trial

court had not made the findings required by Craig, the Sharp court had no

difficulty ascertaining from the record that the seating arrangement was fully

37




justified. (Sharp, at pp. 1783-1784; see also Ellis v. United States (1st Cir. 2002)
313 F.3d 636, 650 [?the less the intrusion on Sixth Amendment rights, the less

detail is required in a trial court?s findings?].)17

Here, while the preliminary hearing court made no factual findings on the

need to shield Ivan, Jr., from defendant?s gaze, the trial court made extensive

findings that the child would be traumatized if he were made to testify at trial.

Defendant does not dispute the vulnerability of the young witness, either at the

time of the preliminary hearing or the time of trial. Indeed, defendant claims that

testifying against his father was so traumatic for Ivan, Jr., that even the videotape

should have been excluded from evidence. Here, as in Sharp, we conclude that

the seating arrangement for the child witness?s testimony was fully justified by the

record, and defendant?s confrontation rights were not violated when the videotape


17

Other state courts have approved the use of similar seating arrangements,

without the findings required by Craig. (State v. Miller (N.D. 2001) 631 N.W.2d
587, 594; Smith v. State (Ark. 2000) 8 S.W.3d 534, 537-538; State v. Brockel
(La.Ct.App. 1999) 733 So.2d 640, 645-646; Brandon v. State (Alaska Ct.App.
1992) 839 P.2d 400, 409-410; State v. Hoyt (Utah Ct.App. 1991) 806 P.2d 204,
210; Stanger v. State (Ind.Ct.App. 1989) 545 N.E.2d 1105, 1112-1113; Ortiz v.
State
(Ga.Ct.App. 1988) 374 S.E.2d 92, 95-96.) The sister-state cases relied on by
defendant are distinguishable. (State v. Lipka (Vt. 2002) 817 A.2d 27, 32-33
[error in failure to make Craig findings conceded]; Commonwealth v. Johnson
(Mass. 1994) 631 N.E.2d 1002, 1005-1007 [state constitutional provision
requiring ?face to face? confrontation violated when child sat with back to
defendant; door left open for less drastic alternative seating arrangement upon
showing of need]; People v. Tuck (N.Y. 1989) 551 N.E.2d 578 [pre-Craig
memorandum opinion; witness unsworn as well as facing away from defendant;
error held harmless].) See also United States v. Kaufman (10th Cir. 2008) 546
F.3d 1242, 1256-1257 (order that defendants not make eye contact with victim
witnesses improper absent Craig findings; error held harmless); Ellis v. United
States
, supra, 313 F.3d at pages 649-652 (trial held before Craig; posttrial Craig
findings held sufficient).

38




was introduced at trial. The seating arrangement at the preliminary hearing

satisfied the central concerns of the confrontation clause: ?physical presence,

oath, cross-examination, and observation of demeanor by the trier of fact.?

(Craig, supra, 497 U.S. at p. 846.)

Finally, defendant claims he was deprived of his confrontation rights when

the preliminary hearing court sustained an objection when defense counsel asked

Ivan, Jr., about the consequences of lying. This claim borders on the frivolous.

Defense counsel asked Ivan, Jr., a series of questions on this topic. The child

answered ?yes? when asked if he would get in trouble if he lied in response to one

of counsel?s questions. The court sustained a prosecutorial objection at this point.

It proceeded to advise Ivan, Jr., about the importance of telling the truth, the

consequences of lying in court (?you?d get in trouble?), and the unimportance of

worrying about anything so long as he told the truth. Ivan, Jr., replied

affirmatively when the court asked if he was ?comfortable with that,? and both the

court and defense counsel declared that their concerns were satisfied. No error can

be conjured from this scenario. The jury was exposed to a full exploration of Ivan,

Jr.?s understanding of the need to be truthful when it watched the videotape.

6. Admission of Defendant?s Statements to Police

Defendant contends he did not validly waive his Miranda rights before he

spoke with detectives shortly after the murder. (Miranda v. Arizona (1966) 384

U.S. 436.) Defendant received a complete advisement of his rights. As defense

counsel agreed when the suppression motion was argued, defendant both nodded

his head and mouthed the word ?yes? when asked if he understood the Miranda

warnings. However, he gave an unintelligible answer when a detective asked if he

wanted to give his ?side of the story.? The detective told defendant he had already

spoken to Veronica, and advised him that her statement would be compared to his

in court. The detective asked again if defendant would like to tell him what

39




happened. Defendant said, ?Um, well I,? and the detective began questioning him.

Defendant interrupted to ask for a glass of water, and, while another detective

went to get it for him, proceeded to answer the questions posed to him.

Defense counsel argued that the videotape did not establish a clear and

unmistakable waiver, and that the mere fact his client had given a statement was

insufficient. Counsel conceded that the statement itself was voluntary, telling the

court, ?We are not arguing that there were improper promises, inducements, or

any of the other so-called voluntariness issues.?

The court denied the suppression motion. It found that while defendant had

clearly indicated he understood his rights, he never expressly agreed to waive

them. The detective had interrupted defendant just when he seemed to be

responding to the invitation to give his side of the story. Nevertheless, the court

concluded, based on several viewings of the videotape, that defendant had

voluntarily agreed to give up his Miranda rights, as evidenced by his statements

freely given with a full understanding of those rights. The court noted that a

Miranda waiver may be implied from a defendant?s behavior, and stated that it

interpreted defendant?s behavior as amounting to a waiver in this case.

?On review of a trial court?s decision on a Miranda issue, we accept the

trial court?s determination of disputed facts if supported by substantial evidence,

but we independently decide whether the challenged statements were obtained in

violation of Miranda.? (People v. Davis (2009) 46 Cal.4th 539, 586.) Here, the

videotape provides substantial evidence supporting the trial court?s finding of an

implied waiver. The court?s ruling was also legally correct.

?No particular manner or form of Miranda waiver is required, and a waiver

may be implied from a defendant?s words and actions. [Citations.] In determining

the validity of a Miranda waiver, courts look to whether it was free from coercion

or deception, and whether it was ? ?made with a full awareness of both the nature

40




of the right being abandoned and the consequences of the decision to abandon

it.? ? [Citation.] Both aspects are tested against the totality of circumstances in

each case, keeping in mind the particular background, experience and conduct of

the accused. [Citation.]? (People v. Davis, supra, 46 Cal.4th at pp. 585-586.)

This court has long recognized that a defendant?s decision to answer questions

after indicating that he or she understands the Miranda rights may support a

finding of implied waiver, under the totality of the circumstances. (People v.

Whitson (1998) 17 Cal.4th 229, 247-248, citing cases.)

Defendant briefly argues that no implied waiver should be found here,

because the detective misled him by saying that Veronica?s statement would be

used against him in court. Defendant did not make this claim below, and in fact

assured the court that no improper inducements had been employed. In any event,

we are satisfied that the waiver here was ?voluntary in the sense that it was the

product of a free and deliberate choice rather than intimidation, coercion, or

deception.? (Moran v. Burbine (1986) 475 U.S. 412, 421.) Insofar as it was

inaccurate for the detective to tell defendant that Veronica?s statement would be

admissible against him, the practical impact of that statement was neither coercive

nor deceptive. It was certainly the case that defendant?s and Veronica?s

statements would be closely compared during the investigation of the crime. The

detective?s point was that it was in defendant?s interest to give his side of the

story. Defendant chose to do so, with a full understanding of the nature of his

Miranda rights and the consequences of abandoning them.

7. Admission of Veronica?s Hearsay Statement

In response to defendant?s showing that Veronica had been an abusive

spouse, the prosecutor called Victor Negrette, Veronica?s brother-in-law, to testify

on rebuttal about an incident in which Veronica told him that defendant had hit

her. Defendant objected on hearsay grounds, pointing out that Veronica was not

41




available for cross-examination. The court overruled the objection based on the

hearsay exception for spontaneous statements. (Evid. Code, ? 1240.)

Defendant contends the admission of this testimony violated his

confrontation rights under the Sixth and Fourteenth Amendments, and article 1,

section 15 of the California Constitution. However, it is settled that ? ?[o]nly the

admission of testimonial hearsay statements violates the confrontation clause . . . .?

(People v. Gutierrez [(2009)] 45 Cal.4th [789,] 812 . . . ; see also Michigan v.

Bryant (2011) 562 U.S. ___, ___ [131 S.Ct. 1143, 1153].) . . . ?The court [in

Crawford v. Washington (2004) 541 U.S. 36] explained that the confrontation

clause addressed the specific concern of ?[a]n accuser who makes a formal

statement to government officers? because that person ?bears testimony in a sense

that a person who makes a casual remark to an acquaintance does not.?

[Citation.]? ? (People v. Loy (2011) 52 Cal.4th 46, 66 (Loy), quoting Gutierrez,

supra, 45 Cal.4th at pp. 812-813.)

In People v. Gutierrez, we held that a statement made by a three-year-old to

his aunt was not testimonial. (Gutierrez, supra, 45 Cal.4th at p. 813.) In Loy, we

reached the same conclusion about a statement the victim made to a friend. (Loy,

supra, 52 Cal.4th at pp. 56, 66.) Here, Veronica?s statement to her brother-in-law

plainly falls in the same category. Its admission did not violate defendant?s

confrontation rights. (See Cal. Const., art. 1, ? 24 [state confrontation right

affords no greater rights than federal Constitution].)

Defendant also claims the court abused its discretion under Evidence Code

section 1240 because Veronica?s statement to Negrette was not ?made

spontaneously while the declarant was under the stress of excitement caused by

such perception.? (Evid. Code, ? 1240, subd. (b).) Defendant contends there was

no evidence showing her statement was made ? ?before there has been time to

contrive and misrepresent, i.e., while the nervous excitement may be supposed still

42




to dominate and the reflective powers to be yet in abeyance.? ? (People v. Thomas

(2011) 51 Cal.4th 449, 495, quoting People v. Poggi (1988) 45 Cal.3d 306, 318.)

However, Negrette testified that Veronica was crying when she telephoned and

asked him to come and get her, crying when he picked her up from defendant?s

parents? house, and still upset and crying when she described the fight that day

during which defendant hit her. We cannot say the court erred in admitting this

testimony. ? ?[T]he discretion of the trial court is at its broadest? when it

determines whether an utterance was made while the declarant was still in a state

of nervous excitement. (People v. Poggi, supra, 45 Cal.3d at p. 319.)? (Thomas,

supra, 51 Cal.4th at p. 496.)

8. Admission of Photographs and a Mannequin

Defendant claims the trial court erred by admitting numerous photographs

of Genny, as well as a mannequin used by an expert to demonstrate how her

injuries were inflicted. Defendant refers generally to autopsy photographs and

crime scene photographs, as well as to a picture of Genny while she was alive. He

contends these exhibits were unduly inflammatory and gruesome, and thus should

have been excluded under Evidence Code section 352.18 We have rejected such

arguments in the past, and do so again here. The evidence was highly relevant and

no more gruesome than the crime.

Defense counsel objected to the admission of the photographic evidence in

limine. After a careful review, the court admitted the photographs showing

Genny?s injuries, commenting that while particularly gruesome, they were


18

Defendant asserts violation of his rights to a fair trial and reliable capital

sentencing under the Fifth, Eighth, and Fourteenth Amendments and article 1,
sections 7, 15, and 17 of the California Constitution.

43




relevant to show the extent of the injuries and the intent to kill and torture.

Defendant claims the photographs were unusually graphic, and cumulative to the

expert testimony. However, we have reviewed the exhibits, and conclude the

court did not abuse its discretion or violate defendant?s constitutional rights.

? ?The admission of photographs of a victim lies within the broad discretion

of the trial court when a claim is made that they are unduly gruesome or

inflammatory. [Citations.] The court?s exercise of that discretion will not be

disturbed on appeal unless the probative value of the photographs clearly is

outweighed by their prejudicial effect. [Citations.]? (People v. Crittenden

[(1994)] 9 Cal.4th 83, 133?134.) ?[A] court may admit even ?gruesome?

photographs if the evidence is highly relevant to the issues raised by the facts, or if

the photographs would clarify the testimony of a medical examiner.? (People v.

Coleman (1988) 46 Cal.3d 749, 776.) ?We have consistently upheld the

introduction of autopsy photographs disclosing the manner in which a victim was

wounded as relevant not only to the question of deliberation and premeditation but

also aggravation of the crime and the appropriate penalty, all of which were at

issue here. [Citations.]? (People v. Cox (1991) 53 Cal.3d 618, 666.)? (People v.

Ramirez (2006) 39 Cal.4th 398, 453-454.)

Here, as in Ramirez, while ?the photographs certainly are gruesome, . . .

they were not unduly so. ?[V]ictim photographs . . . in murder cases always are

disturbing. [Citation.]? [(People v. Crittenden, supra, 9 Cal.4th at p. 134.)] . . .

The photographs at issue here are gruesome because the charged offenses were

gruesome, but they did no more than accurately portray the shocking nature of the

crimes. The jury can, and must, be shielded from depictions that sensationalize an

alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from

an accurate depiction of the charged crimes that does not unnecessarily play upon

the emotions of the jurors. The record reflects that the experienced trial judge was

44




well aware of his duty to weigh the prejudicial effect of the photographs against

their probative value, and carefully did so. (People v. Coleman, supra, 46 Cal.3d

749, 776.)? (People v. Ramirez, supra, 39 Cal.4th at p. 454; see also, e.g., People

v. Heard (2003) 31 Cal.4th 946, 973-978, discussing cases.)

Defendant complains that one photograph of Genny in a Halloween

costume, taken before she came to live with his family, was improper because it

tended to arouse the jury?s sympathy. However, ?the possibility that a photograph

will generate sympathy does not compel its exclusion if it is otherwise relevant.?

(People v. Harris (2005) 37 Cal.4th 310, 331.) Here, the photograph was relevant

to show by comparison the extent of harm suffered by Genny in defendant?s home.

(People v. Cole (2004) 33 Cal.4th 1158, 1198.)

Defendant also briefly, and without citation of authority, argues that the

court improperly allowed the prosecutor to use a mannequin to assist the medical

examiner in his testimony about how fingertip bruises had been inflicted on

Genny?s thighs. The mannequin, described in the record as a ?foam doll? about 38

inches tall, was briefly grasped by the examiner during his testimony to show how

Genny must have been grabbed from behind. The trial court denied defendant?s

motion for a mistrial, at which counsel protested that they were surprised by the

introduction of the mannequin. The court did not err. Use of such demonstrative

aids is routine. (See People v. Hinton (2006) 37 Cal.4th 839, 896; People v. Riel

(2000) 22 Cal.4th 1153, 1195; People v. Cummings (1993) 4 Cal.4th 1233, 1291.)

Defendant?s claim that the deployment of the mannequin here was an improper

appeal to the juror?s emotions is unfounded.

9. Sufficiency of the Evidence

Defendant contends the evidence was insufficient to show that he was the

perpetrator, that he aided and abetted the murder, or that he intended to torture or

kill Genny. We disagree.

45




?In determining evidentiary sufficiency, the court reviews the entire

record, in the light most favorable to the judgment, for the presence of substantial

evidence. Substantial evidence is evidence sufficiently reasonable, credible, and

of such solid value ?that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.? (People v. Johnson (1980) 26 Cal.3d 557, 578.) The

same standard of review applies in considering circumstantial evidence and the

support for special circumstance findings. ([People v.] Valdez [(2004)] 32 Cal.4th

[73,] 104?105.)? (People v. Chatman, supra, 38 Cal.4th 344, 389.)

?Murder by torture requires a killing committed with a willful, deliberate,

and premeditated intent to inflict extreme and prolonged pain for the purpose of

revenge, extortion, persuasion, or for any other sadistic purpose. It need not be

proven that the victim actually suffered pain. However, there must be a causal

relationship between the torturous act and death. (People v. Elliot (2005) 37

Cal.4th 453, 466?467 . . . .) The jury may infer the intent to inflict extreme pain

from the circumstances of the crime, the nature of the killing, and the condition of

the body. We have, however, cautioned against giving undue weight to the

severity of the wounds. Horrible wounds may be as consistent with a killing in the

heat of passion or an explosion of violence, as with the intent to inflict cruel

suffering. (Id. at p. 467.)? (People v. Chatman, supra, 38 Cal.4th at pp. 389-390.)

? ?To find the torture-murder special circumstance true, the jury had to find that

?[t]he murder was intentional and involved the infliction of torture.? (? 190.2,

subd. (a)(18).)? (Elliot, supra, 37 Cal.4th at p. 469.)? (Chatman, at p. 391.)

The evidence that Genny was extensively tortured over a period of time

was overwhelming in this case. Her injuries were such that an intent to inflict

extreme and prolonged pain for a sadistic purpose was obvious. The inference that

the torture began as an effort to discipline Genny was reasonable, and defendant

admitted that he was the spouse who mainly disciplined the children. He also

46




admitted putting Genny in the box in the closet, and wiring the hook above the

box, to ?scare her.? Defendant further admitted running the bath water for Genny

the night she died, and helping Veronica put her in the bath. The evidence showed

that it took 15 minutes to fill the bathtub with water hot enough to inflict the burn

that caused Genny?s death. Defendant could not have been unaware of the

temperature, or the effect it would have on the child. After she was forcibly

scalded to the point where her skin was sloughing off, defendant did nothing to

seek help for her until rigor mortis was setting in. These facts were amply

sufficient for the jury to find that defendant intentionally tortured and killed

Genny.

10. The Prosecutor?s Closing and Rebuttal Arguments

Defendant contends the prosecutor committed misconduct twice during

closing argument at the guilt phase. In the first instance, the prosecutor said:

?You are looking at a murderer of epic proportion. And just because he?s five-two

doesn?t mean a thing. His conduct is so egregious that I have no problem

comparing him to a person like Hitler [objection lodged] or the [objection

sustained] conduct that was embraced in Bosnia [objection lodged and sustained].?

Shortly thereafter, the prosecutor argued, ?He?s not helpless. He?s not crippled.

Doesn?t matter what his gender is. And he wants to be called a victim. He?s Ivan

the Terrible. He was the camp commandant [objections lodged and overruled] and

this was a campaign of terror.?

The other asserted misconduct came during the prosecutor?s closing

rebuttal. Responding to the defense?s claims that Ivan, Jr.?s preliminary hearing

testimony had been influenced by others, the prosecutor said, referring to the child

advocate who had accompanied Ivan, Jr., ?Why not call Bruce Campbell, the man

who?s at the prelim, the man who is sitting next to Ivan, Jr., when he was

testifying? Why not call him? Why doesn?t the defense ? they put on witnesses.

47




[Objection lodged and overruled.] Why don?t they call the process servers? Why

don?t they call Ivan, Jr.?s psychologist? Why don?t they call whatever? Why

don?t they do something about that? Because they?re all going to deny it.? At this

point, the court sustained an objection and admonished the jury not to consider the

prosecutor?s speculation about what absent witnesses might have said.

?The standards governing review of misconduct claims are settled. ?A

prosecutor who uses deceptive or reprehensible methods to persuade the jury

commits misconduct, and such actions require reversal under the federal

Constitution when they infect the trial with such ? ?unfairness as to make the

resulting conviction a denial of due process.? ? [Citations.] Under state law, a

prosecutor who uses such methods commits misconduct even when those actions

do not result in a fundamentally unfair trial.? [Citation.] ?In order to preserve a

claim of misconduct, a defendant must make a timely objection and request an

admonition; only if an admonition would not have cured the harm is the claim of

misconduct preserved for review.? [Citation.] When a claim of misconduct is

based on the prosecutor?s comments before the jury, ? ?the question is whether

there is a reasonable likelihood that the jury construed or applied any of the

complained-of remarks in an objectionable fashion.? ? [Citation.]? (People v.

Friend (2009) 47 Cal.4th 1, 29.)

Defendant?s arguments here are meritless. The court sustained objections

to the prosecutor?s Hitler and Bosnia references, and counsel?s failure to request

an admonition forfeited the claim of misconduct. Not to seek an admonition was

certainly a reasonable strategic decision, as the rhetorical impact of these

references was minimal. While the prosecutor was permitted to call defendant

?Ivan the Terrible? and ?the camp commandant,? these brief epithets were within

the permissible range of closing argument. (See People v. McDermott (2002) 28

Cal.4th 946, 1002-1003.) As the court explained when asked to preclude a

48




repetition of these comments at the penalty retrial, ?where the defense posture is

that the defendant is ?Ivan the Meek? and ?Ivan the Submissive,? I have no

problem whatsoever with the prosecutor characterizing him as Ivan the Terrible.

There is evidence from which the necessary underpinnings could be drawn.?

As for the prosecutor?s reference to witnesses not called, it is neither

unusual nor improper to comment on the failure to call logical witnesses. (People

v. Castaneda (2011) 51 Cal.4th 1296, 1333; People v. Cornwell (2005) 37 Cal.4th

50, 90.) The trial court sustained defendant?s objection to the speculative aspect

of the prosecutor?s argument, and admonished the jury. The admonishment was

clear, and fully sufficient to cure any harm. Defendant falls well short of showing

the sort of deceptive, reprehensible, and prejudicial argument that would constitute

misconduct.

11. Jury Instructions

Defendant raises a number of claims of guilt phase instructional error.19

None have merit.

a. Denial of Pinpoint Instruction

Defendant contends the court erroneously denied the following instruction

proposed by his counsel:


19

Defendant asserts violation of his rights to due process under the

Fourteenth Amendment and article 1, sections 7 and 15 of the California
Constitution; to present a defense under the Sixth Amendment and article 1,
section 15 of the California Constitution; to trial by jury under the Sixth and
Fourteenth Amendments and article 1, section 16 of the California Constitution;
and to a reliable penalty determination and to be free from cruel and unusual
punishment under the Eighth Amendment and article 1, section 17 of the
California Constitution.

49




?In general, a person who fails to help another person by preventing a crime

is not guilty of a crime. Likewise, a person is not guilty of murder simply because

he or she failed to stop someone else from committing a murder. However, the

law provides that a parent or other adult who has custody of a child may be guilty

of the crime of neglect under certain circumstances.?

The court noted that the subjects of this instruction were covered by the

standard aiding and abetting and child endangerment instructions. It reasoned that

giving two different instructions on the same topics would risk confusing the jury.

The court did not err. An instruction highlighting a defense theory may be

rejected if it is duplicative or potentially confusing. (People v. Moon (2005) 37

Cal.4th 1, 30.) Here, the jury was instructed that ?mere presence at the scene of a

crime which does not itself assist the commission of the crime does not amount to

aiding and abetting. Mere knowledge that a crime is being committed and a

failure to prevent it does not amount to aiding and abetting.? (CALJIC No. 3.01.)

It was also fully instructed on the elements of and required mental state for the

crime of child endangerment. Defendant?s proposed instruction was duplicative

and would have required the jury to parse different formulations.

In his reply brief, defendant argues that CALJIC No. 3.01 only instructed

the jury as to liability for ?one possible crime, aiding and abetting,? and did not

reach defendant?s culpability of murder. However, aiding and abetting is not a

crime in itself, and was not presented as such by the instructions. It is a theory of

liability, and the jury would not have failed to understand its application to the

murder charge in this case.

b. Denial of Instruction on Veronica?s Consciousness of







Guilt

Defendant requested an instruction on Veronica?s false statements as

reflecting her consciousness of guilt. The court denied the instruction, noting that

50




it conflicted with the instruction informing the jury it was not to consider

Veronica?s prosecution for any purpose. Defendant contends he was entitled to

the instruction to support his theory that it was Veronica who harmed Genny. He

refers to the evidence that Veronica made false statements about Genny?s bath on

the night of the murder.

The court was properly concerned with an instruction that would have

invited the jury to consider Veronica?s guilt ?concerning the crime for which she

will be tried,? as defense counsel framed the instruction. While counsel indicated

his openness to ?some limiting language,? he never proposed terms that would

have been specific to defendant?s third-party liability theory. The instruction was

properly denied.

In any event, ?[w]e have noted that similar instructions add little to the

standard instruction on reasonable doubt. (People v. Wright (1988) 45 Cal.3d

1126, 1134.) We have also held that even if such instructions properly pinpoint

the theory of third party liability, their omission is not prejudicial because the

reasonable doubt instructions give defendants ample opportunity to impress upon

the jury that evidence of another party?s liability must be considered in weighing

whether the prosecution has met its burden of proof. (People v. Ledesma (2006)

39 Cal.4th 641, 720?721; People v. Earp (1999) 20 Cal.4th 826, 887.)? (People v.

Hartsch (2010) 49 Cal.4th 472, 504.)

c. CALJIC No. 2.04

Over defense objection, the court gave the jury the following version of

CALJIC No. 2.04: ?If you find that a defendant attempted to or did persuade a

witness to testify falsely, such conduct may be considered by you as a

circumstance tending to show a consciousness of guilt. However, such conduct is

not sufficient by itself to prove guilt and . . . its weight and significance, if any, are

matters for your determination.? During its discussion of the instructions with

51




counsel, the court agreed with the defense that the evidence supporting this

instruction was weak, but decided that given ?the constellation of behaviors by the

defendant terrorizing these kids from the outset, there is evidence of that, Ivan, Jr.,

being afraid of him, defendant locking the kids up while this event took place,

lying to the kids afterwards as to the conduct, I think the jury could conclude that

that was an effort to persuade the kids not to testify.?

The evidentiary support for this instruction was indeed thin. Defendant?s

general behavior toward the children, their fear of him, and the fact that he lied to

them about what happened to Genny do not readily suggest the kind of calculated

effort to influence testimony that the instruction contemplates. Nevertheless, as in

other cases where the propriety of giving CALJIC No. 2.04 has been challenged,

?at worst, there was no evidence to support the instruction and . . . it was

superfluous. As previously explained, evidence of defendant?s guilt was strong.

Under the circumstances, reversal on such a minor, tangential point is not

warranted.? (People v. Pride, supra, 3 Cal.4th at p. 249; see also People v.

Jackson (1996) 13 Cal.4th 1164, 1225; People v. Cole, supra, 33 Cal.4th at p.

1223.)

d. CALJIC No. 8.81.18

Although he did not object at trial, defendant now contends the court erred

by giving CALJIC No. 8.81.18 without amending the instruction to require the

jury to find a nexus between the torture or intent to torture and the homicide.20

20

As given, the instruction required the jury to find the following elements

for ?the special circumstance, referred to in these instructions as murder involving
infliction of torture?: ?1. The defendant intended to kill, or with intent to kill,
aided and abetted in the killing of a human being. 2. The defendant intended to
inflict extreme cruel physical pain and suffering upon the living human being for
the purpose of revenge, extortion, persuasion or for any sadistic purpose.

(Footnote continued on next page.)

52




We consider this claim insofar as defendant?s fundamental rights may have been

affected. (? 1259; People v. Prieto (2003) 30 Cal.4th 226, 247.) He fails to show

any such effect.

Defendant argues that the instruction failed to require the jury to find ?some

proximity in time or space between the murder and torture,? quoting People v.

Barnett, supra, 17 Cal.4th at page 1161, and People v. Bemore (2000) 22 Cal.4th

809, 843. However, as in Barnett and Bemore, such proximity was obvious on the

facts of the case. (Barnett, at p. 1162; Bemore, at pp. 843-844.) Genny suffered a

painful death as the result of forcible immersion in a scalding bath. The verdict

form reflected the jury?s finding that the ?murder was intentional and involved the

infliction of torture.? The jury could not have applied CALJIC No. 8.81.18 so as

to make that finding without also finding a temporal and spatial ?nexus? between

the torture and the murder. (See Barnett, at p. 1162.)

e. CALJIC Nos. 2.02, 2.21.2, 2.22, and 2.51

Defendant contends that CALJIC Nos. 2.02 (sufficiency of circumstantial

evidence), 2.21.2 (witness willfully false), 2.22 (weighing conflicting testimony),

and 2.51 (motive) unconstitutionally undermined the requirement of proof beyond

a reasonable doubt. We have consistently rejected these arguments. We do so

again here, as defendant offers no persuasive reason to change our views. (See,

e.g., People v. Dement (2011) 51 Cal.4th 1, 53-55, citing cases.)



(Footnote continued from previous page.)

Awareness of pain by the deceased is not a necessary element of torture in this
special circumstance.?

53




12. Denial of Motion for New Trial

When it returned the guilt verdict, the jury was polled and each juror

individually affirmed the verdict. The jury deadlocked, however, during the

penalty phase. The court declared a mistrial on June 5, 1997. It told the jurors

they were free to talk to the attorneys or to the court itself, but could also decline

to talk about the case. At the next appearance of counsel, the court advised them

that four jurors had asked to speak to the court, for a variety of reasons. During

two of those conversations, the court asked about ?how the jury had analyzed the

intent to kill issue.?21 The first juror replied that the jury did not believe defendant

intended to kill, but instead thought Genny?s death was an unintentional result of

his acts. The second juror also said ?pretty much the same thing: the jury had not

believed there was an intent to kill.? The court said it did not inquire further. It

identified the jurors as Jurors No. 6 and No. 7.22

Defendant moved for a new trial on the torture-murder special

circumstance, arguing that the jury?s failure to deliberate and reach a conclusion

on intent to kill, an essential element of the special circumstance, violated his

rights to due process and a fair trial. He attached declarations by Jurors No. 2, No.

4, No. 5, No. 9, and No. 10, stating that the verdict on the special circumstance

was based only on the evidence of torture. Jurors No. 4, No. 5, and No. 9 also said

the jury ?did not separately analyze and find that [defendant] also intended to kill


21

We do not endorse the court?s decision to delve into the particulars of the

jury deliberations during informal posttrial conversation.
22

Defendant?s new trial motion below, and the Attorney General?s brief in

this court, identify the jurors in question as Jurors No. 6 and No. 12. While there
was some confusion at the hearing where the court advised counsel about the
conversations, the reporter?s transcript reflects the court?s affirmative answer to
defense counsel?s query ?did the court mean seven and six??

54




the child? and Juror No. 2 said the jury ?did not separately find? an intent to kill.

Juror No. 10 stated that ?the issue of intent to kill was not really discussed or

emphasized,? and that the special circumstance was not based on ?the finding of

any intent to kill.? Jurors No. 4, No. 5, and No. 10 said they did not personally

believe defendant intended to kill Genny; Juror No. 9 personally believed

defendant ?may not have intended to kill Genny.? The statements of personal

belief were made in the present tense. The affidavits were dated in July or August

of 1997.

Attached to the prosecution?s opposition were affidavits by Jurors No. 1,

No. 2, No. 3, No. 5, No. 6, No. 7, No. 8, and No. 9, dated later in August 1997.

Juror No. 1, the foreperson, said the special circumstance instruction was posted

on the wall, with the element of intent to kill underlined. Juror No. 1 said the

evidence was discussed in terms of the intent to both torture and kill. Juror No. 1

had responded in the negative when defense counsel had ?asked me the narrow

question of whether I believed the defendant intended to kill Genny Rojas when he

submerged her in the tub on July 21, 1995. . . . However, I was not questioned as

to whether I believed the defendant intended to kill Genny Rojas based upon the

defendant?s omission to act after he had taken her out of the tub, or based upon the

defendant?s overall conduct toward the victim over the period she lived with the

defendant and his wife, which I did consider in deciding whether the defendant

intended to kill the victim.?

Jurors No. 2 and No. 3 stated, ?During deliberation I considered whether

the defendant intended to torture and kill Genny Rojas.? Juror No. 5 declared that

the evidence was discussed ?in relationship to the defendant?s intent to kill and

torture the victim,? and that ?I believe the legal definition of intent to kill and

torture were satisfied.? Juror No. 6 ?personally considered and believed

[defendant] intended to kill Genny Rojas,? and said ?the instructions were

55




discussed at great length during deliberations.? Juror No. 7 said the evidence was

considered ?in relation to the intent to kill and intent to torture,? and stated the

belief that defendant ?intended to torture and kill Genny Rojas.? Juror No. 8 said

the issue of intent to kill was ?discussed during deliberations.? Juror No. 9 said

the jury had discussed defendant?s failure to act after removing Genny from the

bath, and the ?continued abuse and torture she had suffered for at least three

weeks.? Like Juror No. 5, Juror No. 9 believed ?the legal definition of intent to

kill was proven.?

After hearing argument, the court denied the new trial motion. In a written

ruling, it reasoned that the affidavits presented by the defense were inadmissible

under Evidence Code section 1150 because they reflected ?the internal mental

processes of the individual jurors or their speculations as to the internal mental

processes of other jurors.? Regarding defendant?s argument that his due process

and fair trial rights required the declarations to be accepted despite the statutory

bar, the court noted that the policies underlying Evidence Code section 1150 are

?weighty and central to the jury system.? The court observed that the jury was not

required to ?separately? analyze or find intent to kill, but simply to make a finding

on the special circumstance. The court also noted that the jurors? personal beliefs

on the intent to kill question were given more than two months after the verdict

was reached, during which time they were exposed to outside influences and

subject to ?personal second-guessing.? None of the jurors said they were unaware

of the intent requirement, and two who declared they were personally doubtful

about defendant?s intent had also signed declarations stating they believed the

?legal definition of intent to kill? had been satisfied. Thus, the court concluded

that defendant?s affidavits were ?fraught with substantive weakness and credibility

concerns,? and could not support a finding that their admission was

constitutionally required.

56




The court?s ruling was correct. Evidence Code section 1150, subdivision

(a), provides: ?Upon an inquiry as to the validity of a verdict, any otherwise

admissible evidence may be received as to statements made, or conduct,

conditions, or events occurring, either within or without the jury room, of such a

character as is likely to have influenced the verdict improperly. No evidence is

admissible to show the effect of such statement, conduct, condition, or event upon

a juror either in influencing him to assent to or to dissent from the verdict or

concerning the mental processes by which it was determined.? (Italics added.)

?This statute distinguishes ?between proof of overt acts, objectively

ascertainable, and proof of the subjective reasoning processes of the individual

juror, which can be neither corroborated nor disproved . . . .? [Citation.] ?This

limitation prevents one juror from upsetting a verdict of the whole jury by

impugning his own or his fellow jurors? mental processes or reasons for assent or

dissent. The only improper influences that may be proved under [Evidence Code]

section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and

the other senses and thus subject to corroboration.? [Citations.]? (People v.

Steele (2002) 27 Cal.4th 1230, 1261.)

Defendant contends the jury?s failure to deliberate and make a separate

finding on the intent element of the special circumstance was an objectively

ascertainable overt act. The argument fails. No juror declared there was a failure

to deliberate. The jury did make a finding on the issue of intent, returning a

written verdict form stating that ?the murder was intentional and involved the

infliction of torture.? The jurors? statements about the mental processes by which

that verdict was reached were expressly barred by Evidence Code section 1150.

Defendant?s claim that excluding these statements would not serve the policies

underlying the statute is meritless. Asking jurors to revisit the process by which

they reached a verdict plainly opens the door to postverdict jury tampering,

57




harassment of jurors, and instability of verdicts. (See People v. Steele, supra, 27

Cal.4th at pp. 1261-1262.) We have noted that ?[n]ot all thoughts ?by all jurors at

all times will be logical, or even rational, or, strictly speaking, correct. But such

[thoughts] cannot impeach a unanimous verdict; a jury verdict is not so fragile.? ?

(Id. at p. 1262, quoting People v. Riel, supra, 22 Cal.4th at p. 1219.)

Defendant argues that applying Evidence Code section 1150 here would

deprive him of his rights to due process, a fair trial, and a reliable penalty

determination under the Eighth and Fourteenth Amendments, and article 1,

sections 7, 15, and 17 of the state Constitution. We have soundly rejected the

claim that the federal Constitution guarantees a defendant the right to impeach a

verdict with the jurors? internal thought processes. (People v. Steele, supra, 27

Cal.4th at pp. 1262-1263.) Our reasoning in Steele applies equally to defendant?s

state constitutional claims, which he does not separately analyze. Even assuming

there might be circumstances in which constitutional principles would justify an

exception to the rule of exclusion set out in Evidence Code section 1150, no such

circumstances appear in this case. As the trial court observed, there is no

requirement that a jury ?separately? analyze any particular element of a special

circumstance, and the conflicting affidavits obtained from jurors who had been

exposed to outside influences, not to mention a divided penalty deliberation, were

hardly reliable indicators of an unconstitutional guilt verdict.

58




B. Penalty Phase Issues

1. Removal of Prospective Juror for Cause

Defendant claims the court erred by excusing Prospective Juror No. 504 for

cause.23 This prospective juror disclosed on her questionnaire that she believed an

uncle of hers had been unjustly convicted of murder. In response to a question

about her general feelings on the death penalty, she wrote: ?The death penalty

should be abolished! Killing a human being does not serve as a fitting punishment

for crimes where the perpetrator needs to reflect on what has been done.? She said

life imprisonment without the possibility of parole ?gives criminals time to reflect

on their crimes,? and was a punishment worse than death. Prospective Juror No.

504 acknowledged that the death penalty ?serves as a form of satisfaction for the

victim?s family,? but wrote ?none? in answer to a question about which crimes

deserved capital punishment. She said she had favored the death penalty, ?until I

learned how long it took for actual death to occur.? Nevertheless, Prospective

Juror No. 504 said she would not always vote against the death penalty, explaining

?sometimes the death penalty is the only appropriate punishment.? Nor would she

always vote for the death penalty, because ?I consider implementation of the death

penalty as a last resort.?

On voir dire, the court asked Prospective Juror No. 504 about her uncle?s

case. She still felt that he was wrongly convicted. He was no longer incarcerated

and lived in the Virgin Islands. The court asked if she could fairly sit on a capital

jury, given her feelings about her uncle. Prospective Juror No. 504 replied, ?I


23

He asserts violations of his rights under the Sixth and Fourteenth

Amendments, and article 1, sections 7, 15, 16, and 17 of the California
Constitution.

59




don?t know.? She explained: ?It would probably affect me. But I?m going to sort

of jump ahead. I have very mixed feelings about the death penalty. Part of me

says that if somebody commits a crime that?s really horrible, they deserve to die;

but a part of me says, is that really just punishment to them? Are they really

serving their penalty to society by dying, because they never get to contemplate

their crime? I don?t think they?re really ? if they can commit such a crime, I

don?t think they value their own lives, so would losing it be fit punishment, for

them for whatever they committed??

When the court again mentioned Prospective Juror No. 504?s uncle, and her

statement of strong opposition to the death penalty, she said, ?Just in case

somebody ever makes a mistake, you can?t bring somebody back, and juries have

been known to be wrong.? Queried about her view that the death penalty should

be abolished, she answered, ?Yes. I don?t think taking a life for a life is, is fair.?

Nevertheless, she said, ?I think I could be objective.? She told the court she would

keep an open mind as to the appropriate penalty, and the death penalty ?would be

a possibility? for her. She also said that because of her views, ?it would be very

unlikely? for her to vote for the death penalty. The court asked whether her

uncle?s experience played a part in her concerns. Prospective Juror No. 504

repeated her view that ?juries can make mistakes; and if they execute[] the wrong

person, you can?t bring them back.? After looking at a picture of Genny Rojas,

Prospective Juror No. 504 told the court she would be able to keep an analytical,

open-minded view of the evidence.

Defense counsel questioned Prospective Juror No. 504 about her uncle,

establishing that the conviction had occurred in the Virgin Islands when the

prospective juror was a child of nine or 10. She had learned about it from her

family. She agreed that she was not ?adamantly opposed? to the death penalty,

and felt it would be appropriate for certain crimes. She did not remember writing

60




on her questionnaire that sometimes it might be the only appropriate penalty. She

replied in the affirmative when asked if she could give open and honest

consideration to both penalty options in this case.

When the prosecutor asked the prospective juror if there would be capital

punishment if she were running the state, she replied, ?No. I would subject

criminals to medical research. I think that would be a lot better. Make them

useful for something.? She added that she did not feel capital punishment was

proper ?at times,? because ?I don?t think . . . they?re suffering for whatever crime

they committed.? The prosecutor inquired about her use of the phrase ?at times,?

and Prospective Juror No. 504 gave Jeffrey Dahmer as an example of ?somebody

who . . . deserved to die.? The prosecutor noted that this was not a case of serial

murder, and asked if she could apply capital punishment to torture murder.

Prospective Juror No. 504 said she did not know, but when pressed said she could

vote for the death penalty in such a case. She could ?compartmentalize? her

general views on capital punishment. She said her objections were moral, not

political, but added, ?I?m not going to be protesting in front of the courthouse to

abolish capital punishment now.?

Asked if she could ?override [her] morals and give the people of the state of

California a fair trial,? Prospective Juror No. 504 said, ?I really don?t know the

answer to that question. I think I would have to hear more to be able to know if I

would be able to do that.? The prosecutor asked if she minded him asking further

questions. She said, ?Yes. I mind.? The prosecutor said, ?You do mind?? She

answered, ?Yeah. But I ? at times, it can sound very conflicting on the left, on

one side, and on the right, on the other side. But it depends. Sometimes it

depends on the day or it depends on the situation or the case that I hear on the

news.? In response to a hypothetical question, Prospective Juror No. 504 said she

should probably not serve as a juror on a case in which she was morally opposed

61




to criminalizing the behavior at issue, because ?I don?t think I would be able to be

objective.? However, asked if the same considerations applied to her beliefs about

capital punishment, she said, ?I don?t think that you can make that kind of stretch

because there are issues that are at hand here. Child abuse. . . . [There] are people

concerned about those issues. Issues like that can make me change my moral

outlook.?

The prosecutor sought to remove Prospective Juror No. 504 for cause.

Defense counsel objected, arguing that this prospective juror had consistently said

she could set aside her views on capital punishment, and impose the death penalty

in an appropriate case, including this case. The prosecutor responded that

Prospective Juror No. 504 had become ?downright hostile? at times. He

questioned whether she had been truthful, noting the inconsistencies in her

answers. The court granted the challenge, observing: ?She may have been the

least satisfying of the jurors that I?ve seen so far in trying to really get to the

bottom of where she is. I was struck by her opposition to capital punishment and

then her explanation . . . . I think all sides can be left with some real questions

about exactly what her views are. My sense of her, after I was through with her

. . . which has not been shaken by both counsel, is that her views substantially

impair her ability to perform her duties as a juror. . . . I don?t think I?ve seen

anybody like that. I don?t remember anyone like that in our examination of jurors

in the first case [either].?

The court did not err. ?Under the applicable state and federal constitutional

provisions, prospective jurors may be excused for cause if their views would

prevent or substantially impair the performance of their duties. (Wainwright v.

Witt (1985) 469 U.S. 412, 424; People v. Griffin (2004) 33 Cal.4th 536, 558.)?

(People v. Lancaster (2007) 41 Cal.4th 50, 78 (Lancaster).) Defendant renews in

this court his argument that Prospective Juror No. 504 demonstrated her open

62




mindedness about whether to apply the death penalty in this case. However, on

this record we must defer to the trial court?s assessment of the prospective juror?s

suitability.

? ?Assessing the qualifications of jurors challenged for cause is a matter

falling within the broad discretion of the trial court. [Citation.] The trial court

must determine whether the prospective juror will be ?unable to faithfully and

impartially apply the law in the case.? [Citation.] A juror will often give

conflicting or confusing answers regarding his or her impartiality or capacity to

serve, and the trial court must weigh the juror?s responses in deciding whether to

remove the juror for cause. The trial court?s resolution of these factual matters is

binding on the appellate court if supported by substantial evidence. [Citation.]? ?

(People v. Boyette (2002) 29 Cal.4th 381, 416; accord, Lancaster, supra, 41

Cal.4th at pp. 78-79.) ?Deference to the trial court is appropriate because it is in a

position to assess the demeanor of the venire, and of the individuals who compose

it, a factor of critical importance in assessing the attitude and qualifications of

potential jurors.? (Uttecht v. Brown (2007) 551 U.S. 1, 9; see People v. Thornton

(2007) 41 Cal.4th 391, 414 (Thornton).)

Here, Prospective Juror No. 504 gave conflicting and confusing responses

both on her written form and during voir dire. She said that the death penalty

should be abolished, that no crimes deserved capital punishment, and that taking a

life for a life was not fair. Although she professed that she could be ?objective?

and consider the death penalty, she also said she would not be able to be objective

in a case where she did not believe the defendant?s conduct should be a crime.

She effectively admitted that her uncle?s experience of an unjust murder

conviction would affect her penalty deliberation. Thus, as in Lancaster, supra, 41

Cal.4th at page 80, ? ?[w]e pay due deference to the trial court, which was in a

position to actually observe and listen to the prospective jurors. Voir dire

63




sometimes fails to elicit an unmistakably clear answer from the juror, and there

will be times when ?the trial judge is left with the definite impression that a

prospective juror would be unable to faithfully and impartially apply the law. . . .

[T]his is why deference must be paid to the trial judge who sees and hears the

juror.? ? [Citations.]? And as in Thornton, supra, 41 Cal.4th at page 414, the fact

that the prospective juror made some statements that might have warranted

keeping her as a juror does not change the analysis, in light of other statements

supporting the trial court?s finding that her views would substantially impair her

ability to perform the duties of a juror.

2. Exclusion of Evidence Regarding Veronica?s Family

Before the first penalty phase, defendant sought to introduce the evidence

of Veronica?s family background that the court had excluded at the guilt phase.

(See pt. II.A.3., ante.) Defendant contended this evidence of the abuse to which

his wife had been exposed was relevant to establish the mitigating factors set out

in section 190.3, factors (g) (whether defendant acted under extreme duress or the

substantial domination of another person) and (j) (whether defendant was an

accomplice whose participation was relatively minor). Defendant made the same

argument regarding the evidence that Veronica was antipathetic toward her sister

Mary, which he claimed gave Veronica a motive to torture and kill Genny. This

evidence, too, had been excluded at the guilt phase. (See pt. II.A.4., ante.)

The court denied the motion to introduce this evidence at the penalty phase.

It held that Evidence Code section 1101 barred the evidence of Veronica?s

childhood experience of abuse, for the same reasons this evidence was

inadmissible at the guilt phase. Similarly, the court adhered to its earlier ruling on

the evidence of Veronica?s ill will toward Mary, finding it ?too great a leap

between Veronica?s antipathy . . . and her motive to torture and kill Mary?s child.?

These rulings remained in effect at the second penalty phase.

64




On appeal, defendant claims the exclusion of this evidence at the penalty

phase violated his right to present mitigating evidence under Skipper v. South

Carolina (1986) 476 U.S 1, and deprived him of his constitutional rights under the

Eighth and Fourteenth Amendments, and article I, sections 7, 15, and 17 of the

California Constitution. We disagree. Skipper does not hold that a different

analysis governs questions of admissibility at the guilt and penalty phases. We

have held that Evidence Code section 1101 applies to third-party culpability

evidence at the penalty phase for the same reasons it applies at the guilt phase.

(People v. Farmer (1989) 47 Cal.3d 888, 921, fn. 5; see People v. Davis, supra, 10

Cal.4th at p. 501, fn. 1.)

Defendant asserts that a string of United States Supreme Court decisions

establishes his right to present relevant mitigating evidence. (Tennard v. Dretke

(2004) 542 U.S. 274 (Tennard); Eddings v. Oklahoma (1982) 455 U.S. 104; Green

v. Georgia (1979) 442 U.S. 95; Lockett v. Ohio (1978) 438 U.S. 586.) With that

proposition, of course, we have no quarrel. But as we have often explained, the

high court has never held that a defendant?s right to present mitigating evidence

overrides the usual rules of evidence. (E.g., People v. Phillips (2000) 22 Cal.4th

226, 238; People v. Frye (1998) 18 Cal.4th 894, 1015; People v. Ramos (1997) 15

Cal.4th 1133, 1178.) In the words of the Tennard court, ?the ?meaning of

relevance is no different in the context of mitigating evidence introduced in a

capital sentencing proceeding? than in any other context . . . . ? ?Relevant

mitigating evidence is evidence which tends logically to prove or disprove some

fact or circumstance which a fact-finder could reasonably deem to have mitigating

value.? ? ? (Tennard, supra, 542 U.S. at p. 284, quoting McKoy v. North Carolina

(1990) 494 U.S. 433, 440.)

?[A] State cannot bar ?the consideration of . . . evidence if the sentencer

could reasonably find that it warrants a sentence less than death.? ? (Tennard,

65




supra, 542 U.S. at p. 285, quoting McKoy v. North Carolina, supra, 494 U.S. at p.

441.) Here, the evidence defendant sought to introduce at his penalty phase did

not relate to his own circumstances or character. (Compare Tennard, at p. 285.)

He offered the evidence for the same purpose as at the guilt phase, to cast blame

on Veronica. Because the evidence did not tend to prove Veronica?s guilt, it

would not support a finding that a lesser penalty than death was warranted. It bore

little relevance to whether defendant acted under duress or substantial domination

by Veronica (? 190.3, factor (g)), or whether his participation was relatively minor

(? 190.3, factor (j)). As we have discussed in connection with defendant?s guilt

phase arguments, Veronica?s childhood experiences were not remotely similar to

the abuse inflicted on Genny, and her feelings toward her sister did not establish a

motive to torture and kill Genny. Defendant?s claims are entirely speculative and

establish no deprivation of the right to present relevant mitigating evidence.

3. Exclusion of Veronica?s Admissions

At the outset of the guilt phase, the prosecutor indicated that he intended to

introduce statements Veronica made to police officers in the apartment where

Genny?s body had been brought, and another statement made later at the police

station. In the apartment, Veronica had said she put Genny in the bathtub, went to

the kitchen to cook dinner, and returned to the bathroom to find Genny submerged

in the tub. At the police station, Veronica told an officer that she was in the

kitchen cooking when her daughter had drowned. Defense counsel did not object

to the statements made at the apartment, but did raise a hearsay objection to the

statement at the police station.

The trial court was not persuaded by the prosecutor?s arguments that the

statement qualified as an excited utterance or a declaration against interest.

However, the court overruled the hearsay objection. It reasoned that all the

statements were admissible not for their truth, but to show Veronica?s

66




consciousness of guilt and defendant?s, as well, to the extent their statements were

consistent and thus reflected fabrication. Ultimately, the prosecutor elicited only

the statements Veronica made at the apartment.

In advance of the penalty retrial, the prosecutor sought to exclude these

statements, arguing that they were not relevant as evidence of consciousness of

guilt at the penalty phase. Defense counsel?s primary argument in opposition was

that the statements qualified as excited utterances. The court reminded counsel

that its guilt phase ruling had not permitted the statements to be used for their

truth, but only as evidence of Veronica?s consciousness of guilt. Defense counsel

then argued, alternatively, that Veronica?s consciousness of guilt was relevant at

the penalty phase to show the extent of both parents? participation in the events on

the night of the murder. The court questioned whether Veronica?s statements

showed anything about the degree of defendant?s participation.

Counsel responded that Veronica?s use of the word ?I? rather than ?we?

when she talked about putting Genny in the bath would allow the jury to draw a

conclusion about defendant?s role in the incident. Counsel further contended that

Veronica?s degree of participation was relevant to the jury?s consideration of

lingering doubt at the penalty phase. The court viewed these arguments as

dependent on the truth of Veronica?s statements, not their function as evidence of

her consciousness of guilt. It rejected the claim that the statements were excited

utterances, reasoning that (1) according to Veronica, she had been excited not by

the act of putting the child in the bath, but by discovering her floating in the tub

later, and (2) her statements were so clearly at odds with the physical evidence and

common sense that they were plainly fabricated.

Defense counsel then argued that the rules of evidence should be relaxed to

admit the statements, because they were ?dramatically important? to the penalty

phase defense, and important to the jury?s understanding of the circumstances of

67




the crime. The court disagreed, observing that Veronica?s statements were a

denial of responsibility and an attempt to portray the events as merely accidental.

It concluded that this was not the sort of ?dramatic circumstance? that might

justify making an exception to the usual rules of evidence.

Defendant claims the court erred. He argues that Veronica?s statements

were admissible both as spontaneous statements (Evid. Code, ? 1240) and

declarations against her penal interest (Evid. Code, ? 1230). We review the

court?s rulings for abuse of discretion. (People v. Ledesma, supra, 39 Cal.4th at p.

708; People v. Lawley (2002) 27 Cal.4th 102, 153.) None appears here. To

qualify as ?spontaneous? under Evidence Code section 1240, a statement must

have been made ? ?before there has been time to contrive and misrepresent, i.e.,

while the nervous excitement may be supposed still to dominate and the reflective

powers to be yet in abeyance.? ? (People v. Thomas, supra, 51 Cal.4th at p. 495,

quoting People v. Poggi, supra, 45 Cal.3d at p. 318.) Here, Veronica?s statements

were not made before she had time to contrive and misrepresent. A substantial

period of time had elapsed between Genny?s death and the arrival of the police.

Indeed, there was evidence that Veronica sought to prevent the police from being

summoned. There was ample support for trial court?s finding that she used the

available time to fabricate a story. The severe scalding on the lower half of

Genny?s body was utterly inconsistent with the scenario described by Veronica.

In the trial court, defendant did not urge that the statements were admissible

as declarations against Veronica?s penal interest. Therefore, this claim of error has

been forfeited. In any event, it is meritless. ? ?With respect to the penal interest

exception, the proponent of the evidence ?must show that the declarant is

unavailable, that the declaration was against the declarant?s penal interest when

made and that the declaration was sufficiently reliable to warrant admission

despite its hearsay character.? [Citations.]? (People v. Lawley[, supra,] 27 Cal.4th

68




102, 153.)? (People v. Elliot (2005) 37 Cal.4th 453, 483.) Veronica?s statements

were exculpatory rather than inculpatory, and therefore were not against her penal

interest. (Id. at pp. 483-484.)

Defendant asserts, in passing, that the statements were admissible under the

?nonstatutory catch-all exception to the hearsay rule,? and for the nonhearsay

purpose of demonstrating Veronica?s consciousness of guilt. He offers no

argument or authority to support a nonstatutory hearsay exception, and we reject

this claim.24 As to Veronica?s consciousness of guilt, defense counsel failed to

make a clear showing of the relevance of this factor in the penalty phase, and

appeared to have abandoned it as a ground for admission by the time the argument

below concluded. We do not fault the trial court for reasoning that defendant?s

arguments for admissibility depended on the truth of Veronica?s statements.

Nevertheless, Veronica?s consciousness of guilt had some relevance to establish

her participation in the crime, and to lend some support to defendant?s claim that

his participation was ?relatively minor.? (? 190.3, factor (j).)

Any error was clearly harmless, however. Veronica?s guilt, like

defendant?s, was strongly suggested by the physical evidence. Defendant himself

told the police that he and Veronica both put Genny in the bath. Veronica?s

statements were consistent with defendant?s; her use of the pronoun ?I? did not

exclude him as a participant. Defendant speculates the jury might have concluded

that Genny was placed in the bathtub twice, once by both parents and then again


24

Unlike the federal rules of evidence, our Evidence Code does not include a

?catchall? hearsay exception. (See Fed. Rules Evid., rule 807, 28 U.S.C.) We
have recognized that decisional law may provide authority for an exception.
(People v. Ayala (2000) 23 Cal.4th 225, 268.) Defendant, however, refers us to no
such authority.

69




by Veronica alone, after defendant left the apartment. Defense counsel below

offered no such theory, and nothing in Veronica?s statements supports it. Her

statements did not change the story defendant told: they put Genny in the bath;

defendant left for about 10 minutes to buy groceries while Veronica was making

dinner; and after he returned Veronica found Genny in the bath and called him for

help. Because her statements did not significantly alter the scenario before the

jury, we conclude there is no reasonable possibility that the jury would have

returned a different penalty verdict had they been admitted into evidence. (People

v. Robinson (2005) 37 Cal.4th 592, 641-642.)

Defendant further contends the exclusion of Veronica?s statements

infringed his rights to present a penalty defense and to a fair trial and a reliable

penalty determination, under the Sixth, Eighth, and Fourteenth Amendments, as

well as article I, sections 7, 15, and 17 of the California Constitution. The United

States Supreme Court has recognized a narrow exception to the general rule that

hearsay evidence is inadmissible, which is limited to particularly critical and

reliable mitigating evidence. (Green v. Georgia, supra, 442 U.S 95, 97; see

People v. Eubanks (2011) 53 Cal.4th 110, 150.) ?Exclusion of hearsay testimony

at a penalty phase may violate a defendant?s due process rights if the excluded

testimony is highly relevant to an issue critical to punishment and substantial

reasons exist to assume the evidence is reliable.? (People v. Phillips, supra, 22

Cal.4th at p. 238.) Veronica?s statements do not meet this high standard. The trial

court deemed them fabrications, they were entirely consistent with defendant?s

own exculpatory statements, and their evidentiary value was limited to reflecting

Veronica?s consciousness of guilt. Thus, they were neither particularly reliable

nor highly relevant. Tellingly, defendant places far more weight in his briefs on

the value of the statements as admissions than on their tendency to establish a

consciousness of guilt. As admissions, the statements were entirely unreliable.

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Defendant claims it was fundamentally unfair to allow Veronica?s

statements to come in at the guilt phase, yet exclude them at the penalty retrial.

He accuses the prosecutor of taking inconsistent positions. There is no merit in

these claims. At the penalty phase the trial court gave defense counsel a fair

chance to establish the relevance of the evidence for the same purpose it served at

the guilt phase. Counsel failed to make a persuasive showing. Nor did the

prosecutor take an inconsistent position on any factual theory. Strategic choices

about what evidence to present are a routine feature of criminal trials.

4. Denial of Request to Exhibit Defendant?s Children

During the first penalty phase, defense counsel informed the court that they

intended to bring defendant?s children to the courtroom for the jury to see them.

Counsel proposed doing this during the testimony of the grandparents, or of the

children?s lawyer, who would be testifying about the effect on the children if their

father were executed. In this way, they could avoid hearing ?unpleasant parts? of

the testimony. The court refused to permit the children to be brought in. It noted

that it had ?taken substantial measures to keep the kids away from this case.? It

found that the children?s physical appearance was irrelevant to the question of

whether they loved their father and would be hurt by losing him to an execution.

Only if they testified would their presence materially add to the jury?s

deliberations, and the court would not allow that to happen.25

The court was not persuaded by counsel?s arguments that the children?s

appearance would be powerful evidence in mitigation, and that there was no


25

At the guilt phase, the court had refused to allow the prosecutor to

subpoena the older children, Ivan, Jr., and Michael, based on the psychological
harm that might result if they testified. Defendant did not seek to call his children
as witnesses.

71




evidence the four younger children would be harmed if they were exposed to the

proceedings. It ordered that the children were not to be brought to court, based on

the irrelevance of their presence to the penalty deliberations. The court agreed to

give the jury an instruction informing it that the children?s absence was due to the

court?s ruling.

The matter came up again at the penalty phase retrial, when the prosecutor

asked the court to make sure the children would not be present. He noted that they

had been in the courthouse during the last penalty phase. A juror had told the

prosecutor that in an elevator one day, one of the children had asked defendant?s

father, ?Are these the people that are going to kill daddy?? The court responded

firmly, advising defense counsel and defendant?s family members that the children

were not to be brought to the courthouse while the trial was in progress.

Defendant contends that the exclusion of his children violated his right to

present relevant mitigating evidence, depriving him of his constitutional rights

under the Sixth, Eighth, and Fourteenth Amendments, including his right to a

public trial. We disagree. Parading defendant?s children before the jurors would

have provided no relevant evidence in the penalty phase proceedings. Defendant

erroneously asserts that the impact his execution would have on the children was a

proper consideration.

?The impact of a defendant?s execution on his or her family may not be

considered by the jury in mitigation. (People v. Smith (2005) 35 Cal.4th 334, 366?

367; People v. Smithey (1999) 20 Cal.4th 936, 1000; People v. Ochoa (1998) 19

Cal.4th 353, 454?456 . . . .) In Ochoa, we explained it is a defendant?s

background and character, and ?not the distress of his or her family,? that is

relevant under section 190.3. (19 Cal.4th at p. 456.) We distinguished between

?evidence that [a defendant] is loved by family members or others, and that these

individuals want him or her to live . . . . [and evidence about] whether the

72




defendant?s family deserves to suffer the pain of having a family member

executed.? (Ibid.) The former constitutes permissible indirect evidence of a

defendant?s character while the latter improperly asks the jury to spare the

defendant?s life because it ?believes that the impact of the execution would be

devastating to other members of the defendant?s family.? (Ibid.)? (People v.

Bennett (2009) 45 Cal.4th 577, 601 (Bennett).)26

Simply seeing defendant?s small children in the courtroom would not have

provided the jury with insight into whether they loved him and wanted him to live.

Their mere physical appearance would not have spoken, even indirectly, to his

background and character. There was a great deal of witness testimony about the

children and their love for defendant. The court properly excluded the children

themselves from the trial on relevance grounds, and doing so did not violate

defendant?s constitutional rights.27 (See Bennett, supra, 45 Cal.4th at p. 602.)

5. Exclusion of Execution Impact and Family Background Evidence

Defendant claims the court erred by excluding items of mitigating evidence

relating to the impact of his execution on Ivan, Jr., and to defendant?s family

background. We reject these claims.


26

We note that our decisions clarifying the distinction between ?execution

impact evidence? and the feelings of a defendant?s family as indirect character
evidence were issued after this case was tried.
27

Defendant did not assert his right to a public trial below, so the trial court

had no occasion to consider it. That claim of error was forfeited. In any event, it
has no merit. The right to a public trial is not absolute (Waller v. Georgia (1984)
467 U.S. 39, 45), and does not extend to a defendant?s young children. Trial
courts have broad power to control their courtrooms, and may exclude ? ?youth of
tender years.? ? (People v. Woodward (1992) 4 Cal.4th 376, 385, quoting People
v. Hartman
(1894) 103 Cal. 242, 245; see also, e.g., McConnaughey v. United
States
(D.C. 2002) 804 A.2d 334, 341; Reed v. United States (8th Cir. 1972) 461
F.2d 1106.)

73




At the first penalty phase, during in limine discussions about the scope of

testimony, the court ruled that the prosecutor would be allowed to cross-examine

the children?s attorney about whether they had been hurt by Genny?s death and the

events that led up to it, as a way of responding to defendant?s claim that they

would be harmed by his execution. Defense counsel proposed asking on redirect

whether Ivan, Jr., was harmed by having his preliminary hearing testimony

presented at trial. The court summarily denied this request. During the direct

examination of the children?s attorney, defense counsel elicited the view that they

would be devastated by the execution of their father. He then began to ask: ?Is

the fact that Ivan, Jr., was a witness through his videotape and videotaped

statements ?.? An objection was sustained at this point.

In advance of the penalty phase retrial, defense counsel asked the court to

take judicial notice of the fact that Ivan, Jr., had testified against his father.

Counsel wanted to argue that because the child testified at the preliminary hearing,

his father?s execution would be particularly harmful to him. After hearing

argument, the court concluded it would be misleading to provide the jury with the

fact but not the substance of Ivan, Jr.?s testimony. The court made it clear that

either side could introduce the child?s statements, but declined to take notice of

them.

Defendant claims the court erred. However, as discussed above, the impact

of defendant?s execution on his children was not a relevant consideration.

Accordingly, whatever influence Ivan, Jr.?s testimony may have had on that

impact was also irrelevant. Defendant did not seek to use Ivan, Jr.?s testimony at

the guilt phase for a relevant purpose, i.e., to show his love for his father and

desire for him to live. (See Bennett, supra, 45 Cal.4th at p. 601.) Defendant fails

to establish any error on this point.

74




Defendant also argues, briefly, that the court erroneously sustained

objections to questions exploring his father?s and uncle?s family background, and

his mother?s disapproval of his relationship with Veronica. The court did not

abuse its discretion by excluding such ?marginally relevant testimony,? which

would have diverted the jury?s attention away from defendant?s character and

experience and toward the experiences and views of his parents and uncle.

(People v. Holloway (2004) 33 Cal.4th 96, 148-149.)

Finally, defendant complains that the trial court discouraged him at the

penalty phase retrial from presenting testimony that he treated his son Anthony

evenhandedly, even though he believed Anthony was not his biological child.

Defendant claims the court permitted the prosecutor to rebut such a showing with

evidence that the Gonzales apartment was filthy. However, the court allowed

defendant to present testimony from his sisters that he treated Anthony the same as

the other children and did not abuse him, despite believing that he was the product

of Veronica?s affair with Eugene Luna. The court?s in limine ruling allowing

evidence of the condition of the apartment was limited to rebuttal of any showing

by defendant that went beyond evenhanded treatment and tried to paint a ?warm

and fuzzy? positive picture of defendant?s relationship with Anthony. Defendant

did not attempt to make that further showing. ?The scope of rebuttal evidence is

within the trial court?s discretion, and on appeal its ruling will not be disturbed

absent ? ?palpable abuse.? ? [Citation.]? (People v. Wallace (2008) 44 Cal.4th

1032, 1088.) No such abuse appears here.

75




6. Alleged Prosecutorial Misconduct

Defendant claims the prosecutor committed misconduct on various

occasions during his opening statement and closing arguments at the penalty phase

retrial.28 We conclude there was no misconduct.

As noted in part II.A.10., ante, ?[t]he standards governing review of

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

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

reversal under the federal Constitution when they infect the trial with such

? ?unfairness as to make the resulting conviction a denial of due process.? ?

[Citations.] Under state law, a prosecutor who uses such methods commits

misconduct even when those actions do not result in a fundamentally unfair trial.?

[Citation.] ?In order to preserve a claim of misconduct, a defendant must make a

timely objection and request an admonition; only if an admonition would not have

cured the harm is the claim of misconduct preserved for review.? [Citation.]

When a claim of misconduct is based on the prosecutor?s comments before the

jury, ? ?the question is whether there is a reasonable likelihood that the jury

construed or applied any of the complained-of remarks in an objectionable

fashion.? ? [Citation.]? (People v. Friend, supra, 47 Cal.4th 1, 29.)

Defendant complains that the prosecutor referred to him as ?the camp

commandant? in the opening statement, and ?Ivan the Terrible? in closing

argument. Defendant did not object to the ?Ivan the Terrible? epithet, however,

28

He asserts violations of his rights to a fair trial and due process under the

Fourteenth Amendment and article I, sections 7 and 15 of the California
Constitution; to a fair and reliable penalty determination under the Eighth
Amendment and article I, section 17 of the of the California Constitution; and to
representation by counsel and confrontation of witnesses under the Sixth
Amendment and article I, section 15 of the of the California Constitution.

76




and as we have held with respect to the guilt phase arguments, the prosecutor?s

characterizations were within the realm of permissible argument. (Pt. II.A.10.,

ante.) Nor was the ?camp commandant? remark improper in the opening

statement. (See People v. Dennis (1998) 17 Cal.4th 468, 518.) Defendant

complains that the prosecutor had told the court and opposing counsel he would

not use that epithet. However, as the remark was not improper, defendant was not

prejudiced.

Next, defendant claims it was misconduct for the prosecutor to refer in

closing argument to an empty chair on which he had placed a ?reserved? sign.

The reference was as follows: ?You know, folks, I reserved this seat right here;

that is me. And I put a ?reserved? sign on it. Nobody?s ever sat in this seat during

this trial. And there?s a reason for it: it serves as an illustration that somebody

cares about Genny and that Genny does exist in all of our hearts and that a murder

victim shall exist, until the trial is over, at least.? In advance of the argument, the

court had overruled defendant?s objection to such comments, although the

anticipated focus had been that the prosecutor would argue that Genny?s parents

did not care for her. Defendant claims the argument was an improper appeal to the

jurors? emotions. We disagree; at a penalty phase, an appeal for sympathy with

the victim is not out of place. (People v. Jackson (2009) 45 Cal.4th 662, 691.)

The prosecutor?s argument here was not inflammatory.

Defendant also takes exception to references by the prosecutor to his

appearance: ?Putting him in a purple cardigan, or whatever you call that, that

doesn?t make him more of a human. That?s not what he wore around the Gonzales

household. That?s not even the way he looked, from what we can tell. . . . He

used to have facial hair. He doesn?t have that anymore. Why?? Defendant did

not object at trial, and therefore this claim of misconduct has not been preserved.

It is also meritless. (People v. Schmeck (2005) 37 Cal.4th 240, 298-299.)

77




Defendant contends the prosecutor argued facts not in evidence when he

asked the jurors to imagine going into the bedroom in the Gonzales apartment

where Genny was kept, saying, ?and it smells, smells of feces and urine.? Again,

defendant failed to object. In any event, the jury at the penalty phase retrial heard

evidence that the box in the closet in this bedroom contained fecal matter, and the

blanket found on the floor behind the door along with wadded toilet paper was

very moist.

Defendant claims the prosecutor engaged in inflammatory argument when

he said: ?Where else, where else in our history ? think through history ? where

else was it condoned that you could burn a child, that you could hang a child, that

you could stuff a child in a box? Where else have we had that type of conduct? In

concentration camps? [Objection overruled.] We?ve had concentration camps

throughout history, whether it?s in Eastern Europe, Rwanda, Bosnia, wherever it

is, that when you saw this type of conduct. And the defendant embraced it. He

sought it out with zeal and passion. Yet, once again, we hear the same type of

defense: ?I was just following orders. I?m a victim. I had to. I?m a victim. I was

just following orders.? Not here, folks, not this case, not Genny?s case, huh-uh.?

While the prosecutor trod close to the line with this argument, we conclude

it was not misconduct. ? ? ?In general, prosecutors should refrain from comparing

defendants to historic or fictional villains, especially where the comparisons are

wholly inappropriate or unlinked to the evidence.? ? [Citation.]? (People v.

Jablonski (2006) 37 Cal.4th 774, 836-837.) Here, the prosecutor limited his

analogy to conduct, not individuals, and the comparison was not inappropriate

given the extreme forms of torture inflicted on Genny. Furthermore, the

prosecutor made a larger point about defendant?s attempt to avoid responsibility

by claiming he was dominated by Veronica. (Cf. Jablonski, at p. 837.)

78




Defendant next claims the prosecutor committed misconduct when he

asked the jurors to picture themselves with a gun in the Gonzales apartment on the

night Genny died, and asked them at what point they would intervene. The court

overruled defense counsel?s objection. Defendant compares the prosecutor?s tactic

to the argument this court disapproved in People v. Jackson (1963) 59 Cal.2d 375,

381. However, in Jackson the prosecutor told the jurors they would have killed

the defendant to protect the victim, and thus should not be ?squeamish about doing

it legally.? (Ibid.) Here, the prosecutor was illustrating that Genny?s death was

the result of a continuing course of conduct that inevitably resulted in her death.

Defendant had clearly been aware of the extensive abuse Genny suffered. Yet he

failed to intervene, even under his theory of the events. While the prosecutor?s

argument was melodramatic, we cannot say it was a deceptive or reprehensible

method of persuasion, nor was it likely to lead the jury to abandon its appropriate

function at the penalty phase. (People v. Friend, supra, 47 Cal.4th 1, 29.)

Defendant claims the prosecutor misstated defense arguments and

disparaged defense counsel by (1) suggesting that the number of defenses raised

reflected on their veracity; (2) claiming that ?any efforts by his attorneys to

humanize him is ridiculous?; and (3) asserting that any argument by the defense

that the death was the accidental result of ?discipline out of control? amounted to

a claim that Genny somehow contributed to the homicidal acts. These arguments

were within the prosecutor?s ?wide latitude in describing the deficiencies in

opposing counsel?s tactics and factual account,? which includes ?anticipat[ing] the

flaws likely to appear in counsel?s closing argument based on evidence that was

introduced.? (People v. Bemore, supra, 22 Cal.4th at p. 846; see also, e.g., People

v. Redd (2010) 48 Cal.4th 691, 735-736.)

Finally, defendant argues that it was improper for the prosecutor to ask, ?If

he was such a great father, why did he let his children see this?? The court

79




overruled defense counsel?s objection to this remark, and properly so. Defendant

contends the defense did not make the claim that he was a good father, and there

was no evidence that the children saw what had happened. However, defendant

put on evidence that his children loved him, and that he treated Anthony in an

evenhanded way though this child was not his biological son. The injuries

sustained by Genny, some of which were weeks old, would have been obvious to

anyone living in the Gonzales apartment. The prosecutor?s rhetorical question was

within the range of permissible argument.

7. Jury Instructions

Defendant raises a number of claims of instructional error, all of which are

foreclosed under previous decisions of this court. He fails to offer persuasive

reasons to change our views. Thus:

The court did not abuse its discretion by declining to give two instructions

proposed by defense to replace or supplement CALJIC No. 8.85. These

instructions would have told the jury that factor (a) of section 190.3 (the

circumstances of the offense) could be either aggravating or mitigating, and the

rest of the statutory factors could only be considered mitigating factors. Nor did

the court err in refusing instructions elaborating on factor (k) (any other

extenuating circumstances) and delineating nonstatutory mitigating factors.29 It is

settled that CALJIC No. 8.85 properly instructs the jury on aggravating and

mitigating factors, and the court need not give pinpoint instructions on mitigation.

(People v. Howard (2010) 51 Cal.4th 15, 38-39; People v. Lomax, supra, 49

Cal.4th at p. 593; People v. Butler (2009) 46 Cal.4th 847, 875.)


29

Defendant does not set out the terms of these instructions in his briefs, and

confines his argument to general considerations.

80




Defendant claims the court erroneously failed to give an instruction stating:

?The mitigating circumstances that I have read for your consideration are given to

you merely as examples of some of the facts that you may take into account as

reasons for deciding not to impose a death sentence in this case. [?] But you

should not limit your consideration of mitigating circumstances to these specific

factors. You may also consider any other circumstance relating to the case or to

the defendant as shown by the evidence as reasons for not imposing the death

penalty. [?] Any one of the mitigating factors, standing alone, may support a

decision that death is not the appropriate punishment in this case.? We have held

that such instructions need not be given because they duplicate CALJIC No. 8.85?s

explication of section 190.3, factor (k). (People v. Tafoya (2007) 42 Cal.4th 147,

187-188; see also People v. Lucero (2000) 23 Cal.4th 692, 729; People v. Noguera

(1992) 4 Cal.4th 599, 647-648.)

Defendant challenges the court?s refusal to instruct the jury, ?You may

spare the defendant?s life for any reason you deem appropriate and satisfactory, or

for no reason at all. If something arouses mercy, sympathy, empathy or

compassion such as to persuade you that death is not the appropriate penalty, you

may act in response thereto.? Again, we have held such instructions are properly

denied. (People v. Leonard (2007) 40 Cal.4th 1370, 1420; People v. Ledesma,

supra, 39 Cal.4th at p. 739; People v. Lenart (2004) 32 Cal.4th 1107, 1135.)

The court did not err by instructing the jury that it need not be unanimous

in finding aggravating circumstances. (People v. Lomax, supra, 49 Cal.4th at p.

594; People v. Butler, supra, 46 Cal.4th at p. 875.)

The court was not required to instruct on lingering doubt. (People v.

Gonzales and Soliz, supra, 52 Cal.4th at pp. 325-326; People v. Howard, supra, 51

Cal.4th at p. 38.)

81




The court was properly guided by our decision in People v. Noguera,

supra, 4 Cal.4th at pages 639-641, when it instructed the jury that ?[i]f you

conclude that the aggravating circumstances are so substantial in comparison to

the mitigating circumstances that they warrant death instead of life without parole,

you shall return a judgment of death.?

The CALJIC instructions allowing the jury to consider the circumstances of

the crime in aggravation do not result in arbitrary and capricious application of the

death penalty. (People v. Lomax, supra, 49 Cal.4th at p. 593; People v. Leonard,

supra, 40 Cal.4th at p. 1429.)

The instructions were not defective for failing to impose a burden of proof

on the prosecution, or for failing to inform the jury that there was no burden of

proof. (People v. Howard, supra, 51 Cal.4th at p. 39; People v. Elliot, supra, 37

Cal.4th at p. 488.)

The court was not required to instruct on a ?presumption of life.? (People

v. Howard, supra, 51 Cal.4th at p. 39; People v. Lomax, supra, 49 Cal.4th at pp.

594-595.)

The phrase ?so substantial? in CALJIC No. 8.88 is not impermissibly

broad. (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 334; People v.

Lomax, supra, 49 Cal.4th at p. 595.)

CALJIC No. 8.88 is not unconstitutional for failing to require a finding that

death is the ?appropriate? punishment. (People v. Lomax, supra, 49 Cal.4th at p.

594; People v. Hartsch, supra, 49 Cal.4th at p. 516.)

The instructions did ?not violate principles of equal protection of the law on

the ground they provide safeguards different from those found in noncapital cases.

[Citations.]? (People v. Williams (2008) 43 Cal.4th 584, 650; see also People v.

Loker (2008) 44 Cal.4th 691, 756.)

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8. Denial of Motion to Modify Sentence

Defendant claims the trial court erroneously denied the automatic motion to

modify his death sentence. Section 190.4 requires the trial judge to ?review the

evidence, consider, take into account, and be guided by the aggravating and

mitigating circumstances referred to in Section 190.3, and . . . make a

determination as to whether the jury?s findings and verdicts that the aggravating

circumstances outweigh the mitigating circumstances are contrary to law or the

evidence presented. The judge shall state on the record the reasons for his

findings.? (? 190.4, subd. (e).) ? ?On appeal, we independently review the trial

court?s ruling after reviewing the record, but we do not determine the penalty de

novo.? (People v. Steele (2002) 27 Cal.4th 1230, 1267.)? (People v. Thompson

(2010) 49 Cal.4th 79, 141.)

Here, the trial court performed the required evidentiary review,

independently weighing the evidence of aggravating and mitigating circumstances.

It concluded that the circumstances of the offense were an aggravating factor of

?simply enormous? weight. The court noted, ?This case involved the murder of a

four-year-old girl left in the defendant?s care. The ongoing, and to my heart and

my mind, numbing course of torture over a period of weeks which featured

beating, tying, binding, burning, scalding, hanging, [was] all done within the

sanctity of the home and apparently in concert with the defendant?s wife and

undoubtedly in the presence of his six children, who are now additional victims of

his conduct. I have been involved in criminal law for over 26 years at this point,

and this may be the most aggravated, continued torture of a single victim I have

ever seen.?

Regarding the extent of defendant?s participation, the court was persuaded

that ?the defendant was a weaker personality than his wife.? However, it did not

believe his wife ?dominated his decision-making to the point of lessening his

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moral obligation or capacity to avoid the torturous and homicidal conduct that

brings him to judgment today. In fact, I find it impossible to believe, based on the

evidence presented to the jury, that this defendant was a passive participant in the

crime.? The court deemed it mitigating that defendant had a nonviolent

background with a loving family, and was loved by his children. However, it

concluded these factors were outweighed by the ?lengthy, extensive, violent,

sadistic course of conduct? that led to Genny?s death.

Defendant does not take issue with these detailed findings. He merely

asserts that the weight of the evidence does not support the death verdict. We

disagree. The record strongly supports the verdict.

Defendant also asked the court to find the death penalty disproportionate,

relying on People v. Dillon (1983) 34 Cal.3d 441. The court ruled that despite the

support expressed for defendant from his large family, death was not a

disproportionate penalty for ?the extended, horrific, intentional torture murder of a

four-year-old girl entrusted to his care.? Defendant argues, briefly, that the denial

of his Dillon motion was a separate error.

?To determine whether a sentence is cruel or unusual under the California

Constitution as applied to a particular defendant, a reviewing court must examine

the circumstances of the offense, including motive, the extent of the defendant’s

involvement in the crime, the manner in which the crime was committed, and the

consequences of the defendant?s acts. The court must also consider the personal

characteristics of the defendant, including his or her age, prior criminality, and

mental capabilities. (People v. Dillon[, supra,] 34 Cal.3d 441, 479.) If the penalty

imposed is ?grossly disproportionate to the defendant?s individual culpability?

(ibid.), so that the punishment ? ? ?shocks the conscience and offends fundamental

notions of human dignity? ? ? (People v. Cox, supra, 53 Cal.3d at p. 690), the court

84




must invalidate the sentence as unconstitutional.? (People v. Lucero, supra, 23

Cal.4th at pp. 739-740.)

Here, for the reasons given by the trial court, the death penalty cannot be

said to be disproportionate. Defendant asserts without elaboration that the

disproportionality of his punishment also violates the Eighth Amendment. We are

not persuaded. The analysis is the same under the state and federal Constitutions.

(People v. Lucero, supra, 23 Cal.4th at p. 739.)

9. Cumulative Error

Defendant contends the cumulative effect of the errors at his trial requires

reversal. We conclude that any errors or assumed errors were not prejudicial,

whether reviewed separately or cumulatively.

10. International Norms

Defendant asks us to reconsider our consistently expressed view that

California?s use of the death penalty does not violate international law or ?norms,?

as defendant puts it. (See, e.g., People v. Howard, supra, 51 Cal.4th at p. 39;

People v. Lomax, supra, 49 Cal.4th at p. 595.) We decline to do so.

III. DISPOSITION

The judgment is affirmed.




CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.


85




See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gonzales
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S067353
Date Filed: August 2, 2012
__________________________________________________________________________________

Court:
Superior
County: San Diego
Judge: Michael D. Wellington

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Craig Buckser,
Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Annie Featherman
Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
















Counsel who argued in Supreme Court (not intended for publication with opinion):

Craig Buckser
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814-3518
(916) 322-2676

Annie Featherman Fraser
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2427