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.

                                          70
       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.)



                                         82
              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

                                         83
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.




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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
