Filed 6/2/11




           IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                          S072316
           v.                        )
                                     )
VERONICA UTILIA GONZALES,            )
                                     )                     San Diego County
           Defendant and Appellant.  )                 Super. Ct. No. SCD114421
 ___________________________________ )


        Defendant Veronica Utilia Gonzales was convicted of murdering Genny Rojas.1
The jury found as special circumstances that the murder was intentional and involved the
infliction of torture,2 and occurred while defendant was engaged in the commission and
attempted commission of mayhem.3 It returned a verdict of death. On this automatic
appeal, we affirm the judgment in its entirety.
                                        I. FACTS
        A. Guilt Phase
               1. Prosecution
        Defendant was the aunt of Genny Rojas. Genny and her siblings were removed
from the custody of defendant‘s sister Mary Rojas, after Mary went into a drug
rehabilitation program and her husband was arrested for child molestation. Genny was


1
       Penal Code, section 187, subdivision (a). Further undesignated statutory
references are to the Penal Code.
2
       Section 190.2, subdivision (a)(18).
3
       Section 190.2, subdivision (a)(17)(J).
                                             1
first placed with defendant‘s mother, but defendant agreed to take Genny in because her
mother had other children to care for. Early in 1995, when she was four years old, Genny
came to live with defendant, her husband Ivan, and their six children in an apartment in
Chula Vista.
       On the evening of July 21, 1995, Marisa Lozano, a young neighbor in the
apartment building, was standing outside when she heard a child crying in defendant‘s
apartment. Shortly thereafter, she heard a bang, ―like if something hit a wall.‖ The
crying stopped. Ivan Gonzales looked out a window, then shut it and closed the curtains.
A few minutes later Ivan came out of the apartment, slammed the door, and left, looking
angry. Marisa‘s Aunt Noemi then called for her to come inside, as she was supposed to
each night at 8:00. Ivan appeared at a local liquor store around 8:45 p.m., where he
bought milk, cereal, and candy. No more than an hour later Marisa heard a commotion,
and someone said that a little girl had died. Going outside, Marisa saw Ivan carrying a
child into the apartment where Marisa‘s Aunt Patti lived. Marisa heard defendant say,
―don‘t call the cops.‖
       Noemi Espinoza testified that sometime after 9:00 that evening there was some
noise and she heard someone call to her. She came out of her apartment and saw Ivan
carrying a little girl. Noemi asked him what had happened. Ivan told her the child had
burned herself with hot water, and that she did not know how to regulate the water.
Defendant was standing next to Ivan. Noemi asked him to bring the child into her sister
Patti‘s apartment, which was across from the Gonzaleses‘. Ivan did so, followed by
defendant. He placed the child on the floor as Noemi told him to do. She had been
trained as a nurse‘s assistant, and proceeded to check for a pulse and breathing. There
were none, and the body was dry, very cold, and slightly rigid. Nevertheless, Noemi tried
to perform cardiopulmonary resuscitation (CPR), and told her husband to call 911.
Defendant ―said not to call the police because they will get blamed for it.‖ Noemi was
unable to revive the child, and believed she had been dead for a while. Noemi noticed a
                                            2
bald spot on the child‘s head, marks on her neck and right arm, and a purplish color on
her leg.
       While Noemi was attempting CPR, defendant was running in and out of the
apartment, looking very nervous. Ivan sat on the couch but left after a couple of minutes.
Noemi remembered that earlier in the evening, between 6:00 and 7:00, the Gonzaleses‘
son Ivan, Jr. had come to Patti‘s apartment and asked for some rubbing alcohol. Noemi
noticed that ―he had a very weird, blank stare.‖
       Around 9:20 p.m., officers William Moe and Barry Bennett of the Chula Vista
police arrived at the scene. Moe met defendant as he approached the apartment.
Defendant told him she had put the baby in the bathtub, and later found her not breathing.
Moe checked the child for a pulse and respiration, but did not attempt CPR because both
he and Bennett concluded she was ―obviously dead.‖ The body was ―very cold to the
touch.‖ Bennett noted that the child was wearing only a shirt, which was dry, as was her
hair. She had bare patches and open wounds on her scalp, signs of trauma on her face,
and a ligature mark under her throat. She was ―a little rigid,‖ leading Bennett to think
that rigor mortis might be setting in. As he knelt next to the body, defendant said she had
run the bath water, put the child in the bath, and then gone to cook dinner. About 20
minutes later, she returned and the child had slipped under the water, so she grabbed her
and went to another apartment to call 911. As defendant spoke, Ivan was sitting there
―like an observer.‖ Moe and Bennett then went to the Gonzales apartment, where they
found the other children. The bathtub was empty and dry.
       Ten or fifteen minutes after the police arrived, the fire department came to the
apartment. The fireman who assessed the victim found her cold and without a pulse.
When he tilted her head and grasped her chin to try to open an airway, he found that her
jaw was locked and her teeth tightly clenched, an ―obvious sign‖ of rigor mortis. He did
not try CPR, deciding it was too late.


                                             3
       A medical examiner arrived around 1:00 a.m. He noted a thermal burn from the
waist to the toes and numerous other injuries on the body, especially the face. An
autopsy was performed later that morning. A burn injury extended irregularly from the
top of Genny‘s head down and across the back of her scalp. This burn was in the process
of healing, but was infected. The medical examiner estimated that it was from six days to
several weeks old. There was hair loss in the burn area, and thinning and bald patches
elsewhere on the scalp. These could have been caused by the hair being pulled out or by
nutritional deficiencies. There were scars on Genny‘s shoulders that were consistent with
burn injuries. They matched the burned area on the back of her head, if the neck was
bent back. An area of hair was spared between the burn on the head and the shoulders,
which was also consistent with the head being tilted back at the time of the burn. The
injury could have been caused by a hot liquid being poured over Genny‘s head.
       The examiner discovered a subdural hematoma inside the skull. This was a life-
threatening injury for a four-year-old like Genny. It could have been caused by a blow or
by violent shaking, and appeared to be a few hours old. The examiner also noted a
subarachnoid hemorrhage, which is typically the result of a direct impact to the head.
This was not a life-threatening injury, and was weeks or perhaps months old. There was
a pinpoint hemorrhage, or petechiae, in the white of Genny‘s right eye. This injury,
which can be caused by strangulation, normally disappears after a few days if the victim
survives. The area around the right eye was bruised. The examiner estimated that this
injury was a few days old. The left eye was also bruised. There were abrasions above
both eyes in the eyebrow area. Linear abrasions extended across Genny‘s face from her
left ear, and the skin was worn away on the bridge of her nose. The skin on the rim of
both ears was also worn off, exposing the cartilage. These abrasions could have been
caused by a tight band around her head.
       There were bruises on Genny‘s right cheek and chin. On both cheeks, there were
recent burns in a grid pattern, which matched the grill of a blow dryer found in the
                                             4
Gonzales apartment.4 These appeared to have occurred within hours before Genny‘s
death. One of these scars curved in a way that indicated Genny may have pulled away
when it was inflicted. Both cheeks also bore multiple small circular marks, which could
have been caused by the bristles of a brush. Inside Genny‘s lower lip was a laceration,
extending down into the gutter between the gum and lip. This injury was inflamed, and
could have been several days old.
       Genny‘s neck was marked with linear scars, ulcerated in places, which were
consistent with a long period of hanging with her weight partially supported by her feet.
They were probably one to three weeks old. There were also linear, ulcerated scars
around Genny‘s upper arms, which could have been caused by handcuffs over an
extended period.5 Scars on her wrists could have been caused by handcuffs or by a cord.
On her right shoulder were burn marks in a grid pattern matching the burns on Genny‘s
cheeks, and the shoulder was scraped as well. The left arm had multiple injuries,
including abrasions and a recent bruise, the handcuff scars, diagonal scars that appeared
to be old injuries, and recent burns in the grid pattern. The top of the left shoulder was
bruised and abraded, with some triangular scars. Genny‘s thighs were bruised in a
pattern indicating that they had been grabbed forcefully, several times. There were
ulcerated areas on the back of her ankles, which were several days to a couple of weeks
old. Genny‘s spleen and thymus glands were atrophied, a sign of chronic stress.
       The burn on Genny‘s lower body was a deep, third-degree burn, which removed
the superficial layer of her skin. Areas on the back of her knees were spared, indicating
that she had been kneeling when burned. Similar sparing was evident in the groin area,
where the skin was pressed together and thus protected from the hot water. This burn,


4
      The blow dryer was set on high, and not plugged in when it was collected by an
evidence technician.
5
      A pair of handcuffs were found in the Gonzales apartment, and they matched
Genny‘s scars.
                                              5
which extended from Genny‘s chest to her feet, was recent, probably hours old. It
appeared to be a forcible immersion burn, in which she was held down with her hands
and arms out of the water, unable to get herself up. There was no evidence of the
splashing that would have occurred if she tried to get out of the water. The burn could
have been inflicted in three to 10 seconds by water between 140 and 148 degrees. This
burn was the cause of death, although it would have been a survivable burn had treatment
been sought. Without treatment, a child Genny‘s size would go into shock and die in as
little as three hours. As the state of shock progressed, the child would slowly lose
consciousness, becoming pale, cold, and clammy. Rigor mortis could set in within two or
three hours of death. The examiner ruled out drowning as a cause of death, because there
was no water in Genny‘s lungs. He deemed the death a homicide, in that the burn did not
appear to be accidental.
       The prosecutor also called to the stand a pediatrician with expertise in injuries
caused by child abuse, including burns and head injuries. The doctor‘s testimony was
consistent with that of the medical examiner, whose report he had reviewed. The doctor
further noted, based on his examination of photographs of Genny‘s injuries, that areas on
her buttocks were less burned than surrounding areas, suggesting she had been held down
so that the bottom of the tub kept the buttocks from contacting the hot water. From a
single splash mark burn on her torso, he concluded that the water was between 140 and
150 degrees, and that she had entered the water vigorously. From the overall pattern of
the burn he deduced that she had been immersed for around 10 seconds in a fully filled
tub of hot water, with her knees flexed, leaning forward. Considerable force had to have
been applied to produce the areas of spared skin, and to prevent Genny from escaping.
       The burn could not have been caused by adding hot water to a tub half full of
water at a tolerable temperature. The doctor testified that shock was the likely cause of
death. The state of shock could have peaked within a few hours, with death occurring
soon thereafter. With modern burn care, the survival rate for such a burn would be in the
                                             6
range of 90 percent, although the victim would be permanently scarred and might suffer
long-term problems such as joint deformity.
       The doctor found the burn injury on the back of Genny‘s head inconsistent with a
scenario in which she had spilled a pot of hot food from a stove, because the burn was
restricted to the back of the head and the shoulders. It was also unlikely to have been
caused by hot tap water, unless Genny had been lying on her stomach with her head tilted
back under the tap. It could have been caused by pouring a cup of hot water onto the
scalp while tilting the head back. The subdural hematoma Genny suffered was caused by
the application of great force, as was the injury to her lip. The triangular marks on her
shoulder appeared to be burns inflicted with a barrel-shaped object like a curling iron.
       An evidence technician came to the Gonzales apartment the night Genny died. A
residue of human skin, including toenails, was found in the bathtub. The water
temperature from the tap reached 156 degrees, then dropped to 148 degrees after five
minutes. After running for 15 minutes, the water in the tub reached the overflow drain
and was 140 degrees.
       One of the bedroom doors had a rag tied around both doorknobs, attached to a
piece of twine that was tied to a drawer handle on a nightstand close to the wall and near
the door. In the area between the door, the nightstand, and the wall was a blanket. The
blanket was moist, smelled of urine and feces, and appeared to be bloodstained. In the
wall behind the door was an indentation about 36 inches from the floor, which matched
the size of Genny‘s head and was stained with what appeared to be blood or diluted
blood. There were similar stains elsewhere on this area of the wall, which could have
been produced by the wispy hair on the back of Genny‘s head. A cut-off section of pant
leg was found in this room, tied on one side so as to form a cap or hood. Hair and what
appeared to be bloodstains were found on this material.
       In a closet in the same bedroom was a large wooden box. A sliding door had been
removed from its track and leaned into the closet, propped against the box and braced by
                                              7
a desk outside the closet. The top edge of the box next to the closet wall was about two
inches wide. A reddish-brown material consistent with blood or feces was collected from
this surface. A stain on the edge of the box appeared to be a toe print, and there were
more stains inside the box, as well as feces. Above the box in the center of the closet was
a brace supporting the wooden clothes bar. Attached to this brace was a strong steel
hook. There was a hole in the closet door, positioned so that by looking through the hole
from the outside one would see the hook. Bloodstains were found on the underside of the
clothes bar, the brace, the inside of the closet door, and the back wall of the closet above
the box. Among the stains on the wall was a small footprint, just above the box.
       An expert in bloodstain pattern analysis testified that the stains in the closet were
consistent with a 38-inch tall child with a head injury having been fastened to the hook by
the neck while standing on the box, and shaking or rubbing blood onto the various
surfaces where it was found. Because of the patterns, and the fact that some of the stains
appeared to be blood diluted with serous fluid from the wounds, the expert believed there
were a number of such episodes.
       The prosecutor presented two videotaped interviews defendant gave to the police
after waiving her right to remain silent. The jurors were given transcripts. The
prosecutor began with the second interview, conducted on July 24, 1995, several days
after Genny‘s death. Defendant said she had begun making dinner around 7:00 on the
night Genny died. She put Genny in a lukewarm bath around 7:30. Ivan was in the
kitchen. Defendant looked in on Genny after seven to 10 minutes. Ivan went to the store
and came back in less than five minutes. About 20 minutes after she first checked on
Genny, defendant took the blow dryer away from her children because they had been
playing with it and it was hot. As she walked past the bathroom, she saw Genny lying in
the tub, face up but turned to the side. The water was now very hot.
       Defendant said she pulled Genny from the tub and called Ivan. They took her into
a bedroom and used a fan to try to cool her off. They also used rubbing alcohol in an
                                              8
effort to cool her and to rouse her with the smell. They blew on her, and attempted CPR.
Water was coming out of her mouth. After five or 10 minutes, Genny was not
responding, so defendant went to Patti‘s apartment for help. Defendant saw that Genny
was red when she took her out of the bath, and her skin was peeling. When asked if she
saw marks on Genny‘s face or neck, defendant said she ―couldn‘t say there were marks
on her face‖ but admitted ―she had that little one on her neck.‖ However, defendant
could not explain the ligature mark, which she said had been there for about a week. Nor
could she account for the marks on Genny‘s arms, which she said were also about a week
old. Defendant had no explanation for why Genny‘s upper body was not burned in the
bathtub.
       At this point, the officer questioning defendant told her that Ivan had said he
wouldn‘t take the blame for something defendant had done, and claimed he had spoken to
defendant about how she disciplined Genny. Defendant was surprised and upset, and
expressed disbelief. However, she quickly asserted that she was not going to be blamed
for anything she did not do, and soon began implicating Ivan. She said, ―he would hit her
too‖ and ―he has a heavier arm than me.‖ Defendant insisted she did not hold Genny in
the water, and said, ―I can put that on him maybe.‖ Ivan had been in the bathroom a
couple of times during Genny‘s bath, and had spanked her, but defendant ―didn‘t see him
do it.‖ Regarding the blow dryer, defendant said she had it in the room while they were
trying to revive Genny, and had used it to try to give her some air. She said, ―maybe I
got it a little too close. ‗Cause she was moving. Maybe I did. Maybe I didn‘t. . . .‖
When told, however, that the heating element with the grid pattern was in the back of the
blow dryer, defendant asserted she could only have touched Genny with the front end.
       Defendant admitted that both she and Ivan had put the handcuffs on Genny, to
keep her from picking at her wounds. Once, Ivan had put them on her for the entire
night. Defendant tried restraining Genny‘s hands with a cloth tie, but she would free
herself. Defendant also admitted that Genny was made to stay in the closet. Ivan put her
                                             9
in the box for punishment. Sometimes she would climb in by herself. Once or twice, she
slept halfway in the box, tipped over on its side. Defendant said she and Ivan had tied
Genny to the hook in the closet one time, to keep her from falling off the box. Genny had
been scraping her head against the ledge around the rim of the box, so they put the lid on
the box and made her sit or stand on it. As a form of punishment and to keep her from
falling, they tied her to the hook. Defendant said they did this only for two days, a few
hours at a time. Then, however, she conceded Genny had spent the night once tied to the
hook. When defendant took her down, she saw the mark on her neck.
       Defendant maintained that the burn on Genny‘s head happened while Ivan was
away, when Genny climbed up on the stove and reached for a hot pot. When told that the
burn was confined to the back of Genny‘s head, defendant had no explanation. She
denied putting Genny under the tap to try to get the bugs out of her hair. Defendant said
she did not seek treatment for that burn because she did not have Medi-Cal and was
afraid she might be blamed for Genny‘s scars and abrasions.
       Defendant then described how Ivan would hit the children, sometimes with a belt.
He hit Genny when she picked at her scabs, or when she yelled. Defendant added,
however, that she had hit Genny as well. When pressed about how the fatal burn
happened, defendant acknowledged that someone must have held Genny down, but
insisted it was not her. She did not see Ivan do it. She also said she had not heard
anything, but then remembered that Genny had told Ivan, ―please don‘t drown me.‖ Ivan
responded, ―you don‘t tell me what to do.‖ He then went to the store, and about fifteen
minutes later defendant found Genny in the tub, burned. Genny was unconscious and
sitting up in the tub, but beginning to slide down. When asked about the abrasions on
Genny‘s ears and on the bridge of her nose, defendant had no explanation. Defendant
said she knew she should be punished for what happened to Genny. When asked if Ivan
should be punished, she said ―damn right.‖ She knew she had been charged with murder,
but swore she ―didn‘t do it.‖
                                            10
       When she was interviewed earlier on July 22, at 6:25 a.m., defendant was less
coherent. At around 10:30 the previous evening, a police officer at the crime scene had
reported his suspicion that she was under the influence of methamphetamine, but one of
the officers conducting the interview testified that she no longer appeared to be under the
influence.6 Defendant cast aspersions on Mary Rojas, who was her sister and Genny‘s
mother, calling her a ―little bitch‖ and saying she had lost her children because of her
drug problems. In a rambling statement, defendant said she had been making dinner, the
children were being noisy, Ivan had just gone to the store, and she found Genny in the
bathtub, ―just laying there.‖ Defendant repeatedly said she did not know what happened.
       Defendant told the officers that she had run the bath water for Genny. Genny was
on her back, underwater, when defendant found her. The water was warm. She and Ivan
tried to revive Genny with the fan and alcohol. Water came out of her mouth when Ivan
tried CPR. Genny had burned her head by climbing onto the stove and spilling spaghetti
or beans. Defendant made Genny sleep behind the door in a bedroom apart from the
other children to keep the other children from picking on her. Defendant could not
explain the burn marks on Genny‘s cheeks, but said they had not been there when she put
Genny in the bath. The stains on the wall behind the door were from Genny rubbing her
head. Defendant said she and Ivan both spanked Genny when she would do this.
Defendant said Ivan had a ―heavier hand,‖ but volunteered that she had ―never seen him
torture her or anything like that.‖
       Asked if Genny rubbed her head on any other walls, defendant acknowledged that
she would put her in the closet with the box. Genny would come out when ―she started
being good.‖ She was put in the closet ―maybe three or four days you know just to scare
her, you know, just so she could think. . . . But I mean there was no torture there was no I
mean no, no, nothing like that.‖ Defendant could not explain the scars on Genny‘s arms.


6
       Methamphetamine paraphernalia were found in a closet in the apartment.
                                             11
She admitted using a piece of cloth to tie Genny‘s hands together, and said she also put
on ―her little bonnet.‖ Genny sometimes went to the bathroom in her pants and refused
to take a bath. Defendant made her lie in the bathtub once to scare her, ―just to show her
ugly butt.‖ Defendant had used the cloth tie on Genny‘s hands on that occasion, but
denied that she or Ivan ever put the handcuffs on her. When pressed about how she tried
to correct Genny‘s behavior, defendant said, ―I‘m always holding my brush.‖ She
admitted hitting Genny with the brush but added, ―like actually you know, just torture,
torture you know I‘m not . . . doing nothing to her like that and I know . . . Ivan‘s not
either because . . . I would see [it].‖
       Defendant conceded that Genny was badly burned in the bath, and would not have
done that to herself, but denied putting her in hot water and insisted she did not know
how it happened. She maintained that she found Genny lying in the water, even when
told this was inconsistent with the nature of the burn, which could only have occurred if
Genny had been held down in the tub. She adamantly denied doing that, and said she did
not think Ivan would have done it. Defendant had no explanation for the ligature mark
on Genny‘s neck. Defendant was vague and contradictory about when the bloodstains
had appeared on the closet wall, and denied that she or Ivan ever put Genny on the hook.
Asked again about the marks on Genny‘s cheeks, defendant conceded that she had taken
the blow dryer away from the children, but denied burning Genny with it. Defendant
admitted she had failed to get medical care for Genny when she burned her head, even
though she knew it was a serious injury.
               2. Defense
       The defense called a forensic pathologist who opined that Genny‘s burns could
have occurred in three to five seconds in 140 degree water, and that she could have died
as a result of shock within an hour. He also believed Genny‘s subdural hematoma could
have resulted from a violent shaking in an attempt to revive her.


                                             12
       A forensic psychologist with experience in child abuse cases also testified.
Counsel introduced videotapes and audiotapes of interviews with defendant‘s oldest
child, Ivan Jr., then questioned the psychologist about the interviews. Transcripts were
provided to the jury. The first interview presented at trial was conducted by a detective
on the morning after Genny‘s death. Ivan, Jr., who was eight years old, told the detective
that Genny had drowned, and also that she ―was taking a warm bath, and I think she, uh,
put in hot, . . . and she was laying down in the water and she got burned.‖ He had been in
a bedroom with his brothers and sisters, and saw his mother start the bath for Genny. His
mother made it warm, but Genny made it hot. After Genny was taken to ―the other
house‖ to get help, Ivan, Jr. went into the bathroom, felt the hot water, and drained the
tub. He did not hear Genny make any noises in the bath. His mother told him she found
Genny lying in the water, and she couldn‘t breathe.
       Ivan, Jr. said he and his siblings would be spanked when they were ―real bad,‖ but
that Genny was quiet and didn‘t get into trouble. The detective reminded Ivan, Jr. about
the difference between the truth and lies, and encouraged him to be more truthful. Ivan,
Jr. said that defendant had put Genny in a warm bath, and then he and his siblings had
been locked in their room. He now said he had heard Genny make ―a little peeping
sound‖ in the bathroom, like someone saying ―ow,‖ four or five times. When his dad
unlocked the bedroom door, Genny was in the other house and his dad told them Genny
had drowned and was not breathing. Ivan, Jr. admitted he had lied about letting the water
out of the tub. He said he had seen the water going down, though, and that his dad told
him it was hot.
       The next interview was conducted the following day, and was audiotaped. Ivan,
Jr. said no one had been playing with the blow dryer the day Genny was hurt, nor did he
know if his parents had used it. He did not see the blood on the wall in his parents‘
closet, and said he never went in their room, except for one time. He did not see a hole in
the closet door. Genny would pick at the wound on her head. Ivan, Jr. did not know how
                                             13
the injury happened, though he remembered she had all her hair when she first came to
live with them. Genny would be spanked, and sometimes put in the bathtub when she
picked her scabs or got dirty.
       Ivan, Jr. said he was with his mother when she started the bath for Genny, and the
water was warm. When told that his father admitted putting the water in the tub, Ivan, Jr.
suggested Genny had taken another bath in the afternoon. He said his father had told him
Genny couldn‘t breathe, and his mother had told him Genny drowned. He didn‘t
remember the scars on Genny‘s cheeks with the grid pattern, but he did see the wound on
her nose. He didn‘t see the line on her neck.
       Ivan, Jr. was interviewed again on July 26, 1995, five days after Genny‘s death.
He was in a foster home by this time. This interview took place at a county facility for
children, and was videotaped. The detective began by explaining that he knew Ivan, Jr.
had not been telling the truth, and encouraging him not to be afraid and not to tell any
more lies. Ivan, Jr. said the last time he saw Genny she was in the bathtub, playing. He
could see her through the hole in his bedroom door, which had no doorknob. His mother
had put her in the bath. When he heard Genny say ―ow‖ four or five times, he did not
look through the hole. He tried to get out but the door was locked.7 His father opened
the door and told the children to stay in the room. Later, he let them out and said Genny
couldn‘t breathe. His mother said the water was hot and Genny drowned.
       Ivan, Jr. at first denied hearing his mother screaming and yelling, even when told
his brother and sister said she did. When pressed about telling lies, he said he was scared.
He then admitted that his mother had screamed, after Genny said ―ow‖ and before his
father came to tell them to stay in the room. He also said Genny, like all the children,
was spanked and hit with a belt, a broom, or a plastic bat. She slept behind the door in

7
      A sliding lock was installed on the outside of the door. The hole where the
doorknob would have been afforded a view of the entire bathroom if the bathroom door
was open.
                                            14
the other bedroom, and sometimes in the closet. Ivan, Jr. never saw handcuffs on Genny,
but her hands were tied with rope or cloth to keep her from picking her wounds. He
never saw the hook in the closet, or Genny being hung in the closet. He did not know
how she had burned her head, or how she got marks on her ears. Ivan, Jr. was unable to
explain what he had meant when he said he was scared earlier in the interview. He said
he thought the police would punish him if he did not tell the truth.
       Next, the defense played a videotape of an interview conducted by a district
attorney on October 25, 1995. Ivan, Jr. said he was going to be nine in December. On
this occasion, he made some rather dramatic new statements. He volunteered that his
parents had made Genny eat her own excrement. He said Genny would not eat every
day, because his parents wanted to get rid of one of the children, and she was going to be
the first. His parents spent their money on drugs instead of food, and had too many kids.
They were torturing Genny, hitting her and cutting her skin off. Ivan, Jr. said they would
cut her skin with a knife, ―and you could see her meat and her blood.‖ Both parents
would do this, all over Genny‘s body. Genny‘s hair was missing because his parents
pulled it out. Genny would scream, and his parents would hit her, punch her, ―throw her
in the bathtub . . . and get the knife and cut all her skin off.‖
       Ivan, Jr. said that on the night Genny died both his parents had put her in the bath.
Genny kicked the water and tried to fight back, but she was weak. Ivan, Jr. said he knew
the water was hot because ―they would always put hot water.‖ When he looked through
the hole in his bedroom door, his parents had closed the door to the bathroom, but he
knew they had put her in the bathtub because ―they would always do that.‖ His dad said
Genny had drowned, but Ivan, Jr. thought they had killed her instead. He had gotten
some alcohol from a neighbor, and his mother poured it over Genny. However, Ivan, Jr.
then said this was before Genny had taken her bath, and Genny had been in the children‘s
bedroom when his mother poured the alcohol on her.


                                               15
         When asked if he had seen anything hanging in the closet, Ivan, Jr. said his parents
had tied Genny to a metal thing and left her hanging, with her hands tied together. This
happened a lot, and Genny would be left in the closet for ―four hours or something.‖ His
parents had made the children throw a hard ball at Genny, but Ivan, Jr. would ―keep
throwing it crooked.‖ His parents would not give Genny food, and when she asked for it
they would put hot sauce on it. The children made Genny a sandwich, and were punished
for doing so. The district attorney explained that he would be asking Ivan, Jr. questions
in court soon, and encouraged him to tell the truth.
         Finally, the defense played videotapes of Ivan, Jr.‘s testimony at the preliminary
hearing, which took place on November 8, 1995.8 Ivan, Jr. said that Genny had slept in
his parents‘ bedroom both behind the door and in the closet, and also in the bathtub. His
parents put her in the tub with her hands and feet tied. Her hands were also tied with rope
when she slept in the closet. On the night Genny died, Ivan, Jr. was locked in his room
with his brothers and sisters. He saw Genny in the tub when he looked through the hole
in the door. At a later point, he heard Genny screaming and crying, but he did not look
through the hole then. He also heard his mother scream, after he heard Genny. His father
then unlocked the door, asked the children to stay in their room, and locked the door
again.
         Ivan, Jr. said that when Genny first came to live with them, she had no marks on
her face and she had all her hair. She lost her hair when his parents burned her and pulled
it out. They had burned her with hot water in the bathtub, a long time before the night
she died. Ivan, Jr. had seen his parents in the bathroom on that occasion, looking through
the hole in his door. Genny lay down in the tub, and his mother helped his father hold
her down. The hot water came out of the spout and onto her head. She was crying and

8
       Ivan, Jr. did not testify at defendant‘s trial. A single preliminary hearing was held
for defendant and her husband, but their cases were later severed. Ivan was tried first,
convicted, and sentenced to death. The same judge presided over both trials.
                                              16
screaming. Ivan, Jr. saw this ―a lot of times.‖ When Genny would rub her head against
the wall, his parents would hit her with a belt. Ivan, Jr. said Genny did not have accidents
going to the bathroom, and was potty trained.
       Ivan, Jr. testified that he and his brothers and sisters ate in the kitchen, but Genny
ate in his parents‘ room. He said ―she only ate a couple of times.‖ He and his siblings
gave Genny food, but his parents hit them when they found out about it. They also made
the children throw balls at Genny. One of the balls was hard, but it was not heavy. Ivan,
Jr. had once seen Genny hanging in the closet, ―and she was in a basket.‖ Her hands
were tied, and she was hanging without her feet touching the ground.
       On cross-examination by defendant‘s counsel, Ivan, Jr. said that both his parents
were ―the boss of the house.‖ If they disagreed, his mother would usually get her way,
―because she‘s the girl and my dad‘s not.‖ He also said he thought his mother was afraid
of his father, because his father was stronger and would hit her when they got into fights.
On cross-examination by his father‘s counsel, Ivan, Jr. again said his mother usually got
her way, and that she often told his father what to do. Sometimes he would do it.
       Defendant‘s psychological expert noted the strikingly different statements Ivan, Jr.
had made in his fourth interview, on October 25, 1995. He pointed out that the
interviewers did not challenge the new statements about his parents cutting off Genny‘s
skin, and forcing her to eat feces. It was possible that at first Ivan, Jr. had tried to protect
his parents, but became more comfortable as time passed. He might also have been
influenced to change his story. The psychologist had reviewed the notes and testimony
of Ivan, Jr.‘s therapist and his social worker. He observed that neither had done a
forensic interview, that it was not their role to challenge the boy‘s accounts, and that
neither controlled for contamination of his recollections by outside influences.
       Defense counsel called the therapist, Edna Lyons, and the social worker, Karen
Oetken. Their testimony was consistent with the observations of the psychologist.
Lyons, who began seeing Ivan, Jr. in August, 1995, had not reviewed any of the tapes of
                                               17
the interviews with him. Her notes indicated that Ivan‘s first statement about Genny‘s
treatment in the home was on October 10, 1995. He said his parents had hit Genny, and
when she pooped in the tub, they would put the poop up to her mouth. In advance of his
preliminary hearing testimony, he told Lyons he was worried about seeing his parents,
who hit him, and afraid that when he told the truth they would shout that he was lying.
However, he felt safe because police would be present.
       Oetken testified that she had interviewed Ivan, Jr. on July 24, 1995, not long after
Genny‘s death. She asked him what had happened. He said Genny had drowned, and
couldn‘t breathe. He did not hear her cry, but she had said ―ow.‖ The other children
were in the bedroom, and the parents in the living room. His mother checked on Genny
and found her in the water. His parents had told him this. He did not think his parents
had hurt Genny. On August 1, Oetken spoke to Ivan, Jr. in a foster home. He told her
that Genny had rarely come out of his parents‘ bedroom, and he asked if she had died.
He was sad when told that she had. On August 2, Oetken interviewed defendant, who
said that she had been molested by her stepfather as a child, and that her husband was
abusive to her but good to the children. Genny soiled her pants and would not listen.
Defendant said she spanked Genny with her hand and a belt but did not hurt her. The
children also hit Genny. On August 11, Ivan, Jr. denied hitting Genny.
       Oetken attended the preliminary hearing, and made a note of Ivan, Jr.‘s courage in
testifying. She also noticed that his testimony differed from the things he had told her
about what happened to Genny. The next time she spoke to Ivan, Jr., she asked him if
anyone had told him what to say at the hearing. He said no.
       The defense called Cynthia Bernee, a marriage and family therapist with
experience in cases of domestic violence. She described battered woman syndrome.9


9
        The jury was instructed that the battered woman syndrome evidence was offered
for the limited purpose of providing a potentially innocent explanation for defendant‘s
                                            18
Defendant then took the witness stand, and denied that she killed, tortured, maimed,
burned, beat, hung, or disfigured Genny. Under counsel‘s questioning, defendant then
provided a lengthy description of her childhood and her marriage. Her stepfather had
sexually molested her when she was a child. When she was 15 years old, she reported
the molestation, and a dependency court proceeding was initiated. She was placed in a
guardianship with her older sister, but her stepfather was never prosecuted. Defendant‘s
mother drank and was verbally and physically abusive. She yelled at defendant, slapped,
hit, and kicked her, pulled her hair, forced her to stand with her sister on newspaper that
she then set on fire, and made her kneel in the backyard in the sun holding bricks.
Defendant met Ivan when she was 15 years old and they married when she was 16. She
soon became pregnant, and he began to be abusive and controlling. She tried to leave
him, but he threatened her and the children and said he would kill himself. He sexually
abused her.
       Defendant testified that both she and Ivan used marijuana and crystal
methamphetamine. In 1994 and 1995, the drug use became heavy. Ivan had not worked
for years, and they used their welfare payments to buy drugs. Ivan was abusive to the
children, yelling at and hitting them. Defendant admitted spanking the children with her
hand, a belt, and a brush. She also admitted to an affair with Eugene Luna, Jr., a co-
worker of Ivan‘s. She told Ivan about the affair and briefly separated from him, but he
persuaded her to come back. At the time of Genny‘s death, the family‘s apartment was
dirty and the children had lice. Defendant said these conditions resulted from her drug
use and from being overwhelmed by trying to cope with Ivan and the children.
       When her sister Mary‘s children were being considered for placement with
defendant‘s mother, a social worker contacted defendant to ask if the molestation
allegations she had made against her stepfather were true. She said they were not. Her

failure to protect Genny or to provide medical care for her, and to provide a context for
defendant‘s statements after Genny‘s death.
                                             19
mother had asked her to recant so that her mother could keep the children. Genny came
to live with defendant at the end of January, 1995. Earlier, she had lived with
defendant‘s sister Anita for a while. Defendant took Genny because her mother was
having difficulty with the children. Ivan agreed, after defendant‘s mother promised to
give them a hundred dollars a month. However, her mother did not make those
payments. Defendant‘s family was under financial stress. Their welfare payments were
to end, their rent rose, and sometimes the electricity was cut off. Sometimes they ran out
of food. Still, she and Ivan spent money on drugs.
       Defendant testified that Ivan abused Genny the same way he abused his own
children. After Genny burned her head, the abuse got worse. Ivan had taped Genny‘s
hands and burned her head with hot water in the bathtub, in a rage because she had
spilled his marijuana. Defendant wanted to take Genny to the doctor, but Ivan would not
let her. She called a 24-hour nurse and said Genny had been burned with a pot of hot
water, because Ivan told her to say that. She tried to care for the burn as best she could.
Ivan hit and kicked Genny and kept her in the parents‘ bedroom, apart from the other
children. He tied Genny‘s hands with bootlaces, and used handcuffs on her. Defendant
herself used a cloth tie on Genny‘s hands, but it did not keep her from scratching herself.
Genny got less to eat after Ivan started keeping her in the bedroom.
       Defendant did not report Ivan‘s abuse of Genny because she was afraid of him.
On one occasion, she found Genny tied up in the closet, standing on the box and tied to
the closet pole by a cloth around her waist. Defendant took Genny down. When she
asked Ivan why he was doing this, he became angry with her. Defendant thought about
returning Genny to her family, but Ivan did not want anyone to find out what he had done
to her, and her mother was not ready to take Genny back. Defendant found Genny
hanging in the closet a second time, after defendant awoke from a drug-induced stupor.
The cloth was around Genny‘s neck, her face was swollen and red, and there was a mark
on her neck when defendant took her down. She and Ivan fought physically on this
                                             20
occasion. Defendant had tried to protect Genny‘s head by fashioning a bonnet out of a
pant leg and a hairband. She said the bonnet had not caused the abrasion on Genny‘s
nose. She did not know how that injury occurred.
      Defendant and Ivan had been up for two or three days, using methamphetamine,
on the day Genny died. That afternoon, a grocery store owner had confronted Ivan at the
apartment about an unpaid bill, which made Ivan angry.10 Defendant began cooking
dinner in the evening. She interrupted the preparations to draw a warm bath for Genny,
and put Genny in the bath. She went back to the kitchen, and on her way saw Ivan lock
the other children in their room. Then she heard Ivan in the bathroom, yelling at Genny
to hurry up. He came out and asked defendant to make some lines of methamphetamine.
Defendant went into a closet to do this. Ivan began yelling at Genny again. From inside
the closet, defendant heard Genny tell Ivan, ―please don‘t drown me.‖ Then, defendant
heard Genny scream. Defendant went to the bathroom, and saw Ivan holding Genny
down by the shoulders, with her arms on the side of the tub. Defendant yelled at Ivan, he
let go of Genny, and defendant picked her up.
      Genny seemed to be unconscious. Defendant carried her into the parents‘
bedroom. Defendant was screaming. Ivan told her to shut up, and closed the window.
He told defendant to get a fan, and said he would do CPR. He began blowing in Genny‘s
mouth, but she did not move or make a sound. Defendant believed Genny was dying,
and ―wanted so bad for her to come back.‖ Ivan said he was going to the store, and told
defendant to stay there and not tell anyone, because they would blame her and only he
knew what had happened. He left, and defendant stayed with Genny. She thought he
might be getting help. When Ivan returned with bread, beer, and cigarettes, defendant
was angry and went to Patti‘s apartment to get help.


10
      Juan Banuelos, the store owner, testified and confirmed that he had visited the
apartment that day in an attempt to collect the bill from Ivan.
                                           21
       Defendant claimed she said ―don‘t call the cops‖ at Patti‘s because Ivan had told
her that, and because she wanted to get help for Genny, not contact the police. Ivan also
told her to say that Genny had drowned, and that her head was burned by a hot pot.
Defendant said she had lied during her interviews with the police. She was shocked,
confused, and too afraid of Ivan to tell the truth. During the first interview, she was
under the influence of methamphetamine. During the second interview she was not, but
she was confused, unable to think for herself, and afraid that Ivan would get out and hurt
the kids. She could not account for all the scars on Genny‘s body, because she had not
been there when they were inflicted. Defendant said Genny did not have the blow-dryer
burns before she took her last bath. Defendant had left Genny alone with Ivan, however,
while she paced around the apartment after pulling Genny from the bathtub.
       Defendant testified that she had seen Ivan a few times since their arrest when they
were being transported to juvenile court and to the criminal proceedings. He told her that
he loved her, and to stick to the story he had told her. Defense counsel introduced into
evidence 26 pages of correspondence Ivan had sent to defendant while they were in jail.
Ivan had tried to persuade her to fire one of her attorneys. On one letter, he had written
―if it comes right down to it,‖ beneath which he drew a face labeled ―me‖ with a finger
pointing toward it. Defendant said this diagram meant that Ivan was telling her what to
say. She said he used his finger ―as a sexual thing, and it implies that, too.‖ Defendant
believed Ivan was trying to get her to fire her attorney because the attorney wanted her to
blame Ivan. Most of the correspondence, however, was about sex and how much he
loved her. At first it felt good to hear this, but then she realized he was trying to get her
to do what he wanted her to do.
       The defense called a series of witnesses who were friends, family members, or
neighbors of defendant‘s. Counsel questioned them about defendant being abused by her
mother and stepfather when she was a child, and by her husband during the marriage.
Victor Negrette, the husband of defendant‘s sister Anita, testified about the months when
                                              22
he and Anita had custody of Genny before returning her to defendant‘s mother. He said
Genny was undisciplined and would throw tantrums in stores if they did not buy her what
she wanted. He had told Anita that Genny ―needed professional help,‖ and ultimately
decided they were financially incapable of caring for her. They had seen Genny once
after she moved in with defendant‘s family, and she seemed healthy and happy. Anita
also testified. She too mentioned Genny‘s misbehavior in stores, and her good condition
when they visited defendant‘s home.
        A doctor specializing in addiction testified about methamphetamine abuse and its
effects. The defense then called Kenneth Ryan, a psychologist with experience
counseling battered women, who testified about battered woman syndrome and his
evaluation of defendant. He had interviewed defendant many times while she was in
custody, and had given her the MMPI (Minnesota Multiphasic Personality Inventory)
twice. He concluded that the first test, administered in September 1995, was invalid
because defendant‘s responses were characteristic of a subject who is lying. The second
test, conducted in February 1997, also reflected a high score for falsity, but not so high as
to automatically invalidate the test results. This test showed that her self-esteem had
been improving. Ryan believed defendant suffered from posttraumatic stress disorder
and battered woman syndrome. He observed that it is characteristic of a battered woman
to fail to protect children in her care. Furthermore, a battered woman will lie to protect
her batterer, and accept responsibility for the actions of the batterer.
       Following the psychologist‘s testimony, the defense recalled Cynthia Bernee, the
therapist who had testified generally about battered woman syndrome. Bernee gave her
opinion that defendant was a battered woman. She testified that a battered woman may
accept responsibility for the batterer‘s abuse of a third party, such as a child.
       3. Rebuttals
       The prosecutor called a number of witnesses on rebuttal. Eugene Luna, Jr., the co-
worker of Ivan‘s who had an affair with defendant, testified that she had initiated the
                                              23
encounter. He had seen defendant throw a plate at Ivan on one occasion, and from his
observations of their relationship he believed defendant ―had the upper hand.‖ Luna also
related an incident when defendant, intoxicated after a party, threw a temper tantrum in a
parked car with Ivan, Luna, and some of the Gonzales children present. Defendant was
screaming incoherently and kicking the dashboard. Neither Ivan nor Luna could calm her
down, and witnesses called the police, who took defendant into custody.
       Luna‘s father testified. He had socialized with defendant and Ivan over a period
of four or five years, and he also deemed defendant the ―boss of the apartment.‖ He had
seen her hit Ivan in the mouth. She would tell Ivan what to do, and he would usually do
it. If he did not, she would curse at him and push him. The wife of the grocery store
owner who visited the apartment on the day of the murder testified that she had seen
defendant and Ivan in the store together about eight times. Defendant seemed to be in
charge of the relationship; she told Ivan what kind of cigarettes he could buy, and he
would stand behind her watching the children.
       Rosemarie Price, a childhood friend of defendant‘s who was Ivan‘s cousin,
testified that she had introduced Ivan to defendant. On one occasion, defendant had
shown Price some papers relating to her molestation claim against her stepfather.
Defendant did not seem embarrassed, and snickered when Price asked why she had not
told her about it before. Lorena Peevler was a friend of Ivan‘s, with whom defendant and
Ivan had lived for a period of months in 1990 or 1991. Peevler said the two fought a lot.
Defendant blamed the conflict on Ivan‘s mother. Defendant would push and scratch at
Ivan and threaten to leave; he would not retaliate and pleaded with her to stay. After they
moved, Peevler visited defendant and they talked. She did not complain about abuse by
Ivan. Peevler felt defendant was the boss of the relationship. Ivan‘s sisters, Patricia
Andrade and Guadalupe Baltazar, testified to the same effect. Baltazar had visited the
apartment in early July, and saw the burn on Genny‘s head. Genny had no other scars at
that time.
                                             24
       Mark Mills, a forensic psychiatrist, testified for the prosecution. The court had
ordered defendant to submit to an evaluation by Dr. Mills. She refused on the advice of
counsel, as the jury had learned during her testimony. Dr. Mills had reviewed the
videotaped interviews of defendant, and transcripts of her trial testimony. He offered no
clinical or forensic opinion, but gave his opinion on three issues. First, Mills said the fact
that defendant faced the death penalty provided a motive for malingering, i.e., a
conscious attempt to deceive psychological evaluators about her mental state. Second, he
opined that if defendant had posttraumatic stress disorder, it did not interfere with her
ability to perceive reality or vitiate her free will. Finally, Mills believed the
inconsistencies in defendant‘s various accounts of events in her life made it impossible to
reliably conclude that she had posttraumatic stress disorder.
       Defendant did submit to an evaluation by the other mental health expert called by
the prosecution, Nancy Kaser-Boyd. Kaser-Boyd, a psychologist, met with defendant
over the course of two days for around 15 hours, seven of which were spent on testing.
Defendant communicated well and Kaser-Boyd estimated her intelligence as ―certainly
average and probably above average.‖ Defendant‘s test results were inconsistent with
those usually obtained from battered women, and consistent with those of a subject who
is exaggerating her symptoms. Kaser-Boyd reviewed the second MMPI test given by
Ryan, the defense psychologist, going over the answers with defendant and making
corrections. On this test, which showed some exaggerated features but was within the
range of a valid profile, defendant‘s scores were elevated in categories reflecting a
tendency to act out angrily in socially unacceptable and irrational ways. This was not the
typical profile of battered women.
       Kaser-Boyd testified that defendant‘s account of Ivan‘s spousal abuse did not
approach the level of violence at which women are immobilized by terror and unable to
come to the aid of an abused child. Kaser-Boyd found it difficult to say whether
defendant did suffer from battered woman syndrome, due to her tendency to exaggerate
                                              25
and to give inconsistent accounts of the traumatic events in her life. Kaser-Boyd found it
―completely illogical‖ to conclude that defendant had been protecting Ivan in her
statements to the police, when she implicated both him and herself in Genny‘s abuse.
Kaser-Boyd agreed with Ryan that defendant suffered from posttraumatic stress disorder.
She deemed it a complex, chronic form of the disorder that could have resulted from
defendant‘s childhood experiences alone, though being a battered woman might have
contributed.
       On surrebuttal, the defense called another expert psychologist, Thomas Mac
Speiden. He had given defendant an intelligence test and a reading achievement test.
Defendant‘s intelligence was in the low average range, and her reading ability was that of
a beginning eighth grader. The tests given by Ryan and reviewed by Kaser-Boyd
required an eighth grade reading level. Mac Speiden believed the profile derived by
Kaser-Boyd from the second MMPI test was flawed because she had only reviewed
certain answers with defendant. Mac Speiden found the validity of this test highly
questionable. He also believed Hispanics were underrepresented during the test
standardization process, so that the results might reflect a cultural bias.
       B. Penalty Phase
       The prosecutor presented no additional evidence at the penalty phase. The defense
presented witnesses who related defendant‘s exemplary conduct and religious observance
in jail. Employees of the social services department testified about defendant‘s
supervised visits with her children. Ivan, Jr.‘s therapist said the boy‘s psychological
problems would be exacerbated if his mother were given the death penalty. A therapist
for defendant‘s son Michael gave similar testimony.
       Defendant‘s sister Anita testified about the effect a capital sentence would have on
the family, as did Anita‘s husband Victor and their sons Victor, Jr. and Gabriel. Genny‘s
mother, Mary Rojas, described the abusive environment she and defendant grew up in,
and the drug problems that led her to lose custody of her children. Although Genny‘s
                                              26
death was very difficult, Rojas said her family would be hurt again if defendant were
given the death penalty. Rojas‘s substance abuse counselor testified about the progress
she had made in treatment.
                                     II. DISCUSSION
       A. Guilt Phase
              1. Claims Regarding the Battered Woman Theory
       Defendant‘s first argument is convoluted and diffuse. She contends a variety of
improprieties permitted the prosecutor to insinuate that defendant and Ivan had each
agreed to blame the other for Genny‘s death. However, the actual claims she advances
under this heading are more accurately characterized as challenges to various aspects of
the prosecutor‘s rebuttal of defendant‘s claim that she suffered from battered woman
syndrome. We address each claim separately, in the order defendant makes them.
                     a. Cross-examination on Ivan’s Defense
       Defendant asserts the prosecutor committed misconduct when cross-examining her
regarding a letter in which Ivan tried to persuade her to fire her attorney. At the end of
this letter, Ivan had drawn a diagram of a face labeled ―me‖ with a finger pointing to it,
below the statement ―if it comes down to it.‖ Defendant maintained the position she had
taken on direct examination, that the letter reflected Ivan‘s attempt to control her, and the
diagram referred to his practice of using his finger for sexual purposes. The following
exchange occurred:
       ―Q: Well, you knew that Ivan Gonzales claimed he was a battered man, didn‘t
you?
       ―A : He never testified to that; no, I didn‘t.
       ―Q: He didn‘t testify to it, but he claimed that, didn‘t he?‖
       Defense counsel objected, on the ground that the question had been asked and
answered. The court sustained the objection ―on the grounds that we shouldn‘t go
through with that line.‖ Nevertheless, the prosecutor proceeded to ask defendant, ―well,
                                              27
were you aware that that was his defense?‖ Defense counsel objected and asked for a
sidebar conference. The court agreed.
       Out of the jury‘s presence, the court noted that ―we‘ve tried to stay away from
what happened at Ivan‘s trial altogether, and this is asking about what happened at Ivan‘s
trial.‖ The court also pointed out that ―Ivan, as far as I know, didn‘t do anything but
enter a plea of not guilty and deny the special circumstances. All the things that she
might answer about are things his attorneys did . . . I‘m not so sure I see how relevant that
is.‖ The prosecutor explained that he was trying to dispute defendant‘s claim that Ivan
was manipulating her. The court noted that defendant‘s attempt to characterize the
drawing as anything other than an invitation to cast blame on Ivan was weak, and did not
justify drawing the jury‘s attention to what Ivan‘s position at his trial had been. It stated:
―I‘m inclined to sustain the objection and to find that we ought to stay away from
anything about what happened at Ivan‘s trial.‖
       Defense counsel moved for a mistrial, arguing that the prosecutor had created the
impression that the battered spouse defense was ―bogus‖ because Ivan as well as
defendant had asserted it. Counsel noted that Ivan in fact raised no such defense at his
trial. If a mistrial were denied, counsel asked the court to permit him to introduce
statements Ivan had made in his interviews with the police, admitting that he had put
Genny in the bath. The court denied the motion for a mistrial, and agreed to consider
remedial measures at a later time. It granted defense counsel‘s request for an admonition
telling the jury not to consider counsel‘s questions as evidence, and in particular not to
consider the question when an objection was sustained.
       At the next break in the proceedings, the court brought up the question of how the
defense might respond to the prosecutor‘s questions, suggesting that perhaps on redirect
the defendant could testify she was unaware of any attempt by Ivan to blame her for what
happened to Genny. Defense counsel noted that Ivan‘s defense was indeed that
defendant was responsible for what happened, although Ivan himself never directly
                                              28
blamed her. In any event, counsel declined the court‘s invitation to explore defendant‘s
knowledge on this subject, saying it would open ―more cans of worms.‖11
       Defendant argues that the prosecutor committed intentional misconduct by
questioning her about Ivan‘s battered spouse defense. ―The standards governing review
of misconduct claims are settled. ‗A prosecutor who uses deceptive or reprehensible
methods to persuade the jury commits misconduct, and such actions require reversal
under the federal Constitution when they infect the trial with such ― ‗unfairness as to
make the resulting conviction a denial of due process.‘ ‖ [Citations.] Under state law, a
prosecutor who uses such methods commits misconduct even when those actions do not
result in a fundamentally unfair trial.‘ [Citation.] ‗In order to preserve a claim of
misconduct, a defendant must make a timely objection and request an admonition; only if
an admonition would not have cured the harm is the claim of misconduct preserved for
review.‘ [Citation.] When a claim of misconduct is based on the prosecutor‘s comments
before the jury, ‗ ―the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.‖ ‘
[Citations.]‖ (People v. Friend (2009) 47 Cal.4th 1, 29.)
       Here, defendant did not object on grounds of misconduct, and the court did
admonish the jury to disregard the prosecutor‘s questions. In any event, while it was
improper for the prosecutor to persist with his line of questioning after the court sustained
an objection, this conduct did not amount to the kind of ― ‗deceptive or reprehensible‘ ‖
tactic that rises to the level of prosecutorial misconduct. (People v. Friend, supra, 47
Cal.4th at p. 29.) On direct examination, defendant had offered her interpretation of
Ivan‘s letter as an example of his continuing efforts to dominate and control her. A claim

11
        Counsel pressed his argument that he should be allowed to present Ivan‘s
incriminating statements, but the court declined to hear the argument at that time. Later
in the trial, defense counsel reminded the court that it had not ruled on this point. The
court heard from both sides, and decided that no door had been opened to bring in Ivan‘s
statements. We discuss the admissibility of these statements post, in part II.A.1.d.
                                             29
by Ivan that he was battered by defendant would have tended to rebut that theory. There
was at least some factual basis for the prosecutor‘s suggestion. Defendant had been
present in pretrial proceedings when Ivan‘s attorney announced his intent to employ a
battered spouse defense, though ultimately he decided not to. While the question positing
―that was his defense‖ was misleading, there was no opportunity to clarify the issue
because an objection was sustained. The jury was reminded that statements in the
attorneys‘ questions were not evidence. Defense counsel did not ask the court to inform
the jury that Ivan did not actually claim that he was a battered spouse.
       Defendant contends the court erred when it denied her request for a mistrial. We
disagree. ―In reviewing rulings on motions for mistrial, we apply the deferential abuse of
discretion standard. [Citation.] ‗A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a
particular incident is incurably prejudicial is by its nature a speculative matter, and the
trial court is vested with considerable discretion in ruling on mistrial motions.
[Citation.]‘ [Citation.]‖ (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) Here, the
court did not abuse its discretion by concluding that an admonition was sufficient to cure
any prejudice stemming from the prosecutor‘s questions.
                     b. Cross-examination on Expert Opinion
       The matter of conflicting expert opinions on whether Ivan was a battered spouse
first surfaced in a hypothetical question posed by the prosecutor when cross-examining
Cynthia Bernee, defendant‘s expert on battered woman syndrome. During Bernee‘s
initial testimony, before defendant took the stand, the prosecutor asked Bernee to assume
that a husband and wife were both involved in a crime, both claimed to be a battered
spouse, both had expert opinion supporting that claim, and the prosecution had experts
saying that neither spouse suffered from the syndrome. He then asked, ―what‘s a jury
supposed to do?‖ The court sustained a defense objection on the ground that the question
was outside the witness‘s expertise. The prosecutor proceeded to ask, ―how would you
                                              30
expect a jury to evaluate a situation like that?‖ The court again sustained a defense
objection.
       The matter was squarely raised later, when the prosecutor sought permission to
cross-examine defense experts about the existence of two reports, one by a Dr. Weinstein
concluding that Ivan was a battered spouse, and one by Dr. Mills, the prosecution expert,
concluding that he was not. The prosecutor proposed using these reports for two
purposes: showing that expert opinion on this subject was unreliable, and showing that
an expert believed Ivan was a battered man, which would rebut the defense position that
any violence by defendant against Ivan was merely counter-violence consistent with her
status as a battered woman.
       Defense counsel objected strenuously. Among other claims, counsel argued that
the reports on Ivan were irrelevant, would bring in hearsay, and would prejudice the
defense because it would be unable to meet the evidence by disputing the conclusion that
Ivan was a battered man. Ivan was not available to defense experts for examination. The
court observed that the scope of cross-examination of an expert is broad, and the critical
issue was whether the reports were more prejudicial than probative under Evidence Code
section 352. The court noted that the prosecutor might use the reports to show that
experts reach different conclusions on battered spouse syndrome; to show that the
defense experts ignored the reports on Ivan, if that were the case; and to show that Ivan
was not a batterer. However, the latter point depended on hearsay. On the other hand,
the court reasoned that the reports on Ivan would distract the jurors from their focus on
defendant; confuse them because the prosecutor did not contend that Ivan was a battered
man; consume undue time if the substance of Dr. Weinstein‘s opinion were allowed in;
and prejudice the defense due to its limited opportunity to challenge the conclusion that
Ivan was a battered man. If the prosecutor were to cross-examine the defense experts
with the substance of that conclusion, the court thought it would be hard for the jury to
follow a limiting instruction telling them not to consider it.
                                              31
       The court proposed a middle ground, allowing the prosecutor to simply ask the
defense experts if they were aware of the conflicting reports, one finding that Ivan was a
battered man and the other that he was not, without including any details. The court
would then instruct the jury that the reports could be considered only on the reliability of
expert opinion in this area, not on the factual question of whether Ivan was either a
battered man or a batterer. The prosecutor was amenable. The defense objected, and the
matter was argued at length. Defense counsel agreed with the court that prejudice was
the determinative issue under Evidence Code section 352. As to conflicting expert
opinion, counsel noted there were already conflicting experts in this case, so the
prosecutor did not need the reports on Ivan to make that point. It would be very difficult
for the defense to rebut Dr. Weinstein‘s conclusion that Ivan was a battered man, or for
the jury to put it aside and follow a limiting instruction. Indeed, allowing the prosecutor
to tell the jury that experts reached different conclusions on Ivan‘s status was no middle
ground at all, but exactly what the prosecution wanted, because it would both cast doubt
on the defense experts and present the substance of Weinstein‘s report. Counsel argued
that if Weinstein‘s opinion came before the jury, the defense was entitled to rebut it by
bringing in statements by Ivan that Weinstein had considered.
       The court asked whether the prosecutor intended to argue that Ivan was a battered
man. The prosecutor said he did not. His position was that it was simply a case of
mutual violence between the spouses. The court, noting that it had devoted a significant
amount of time to this issue, ruled that the prosecution could use the reports on Ivan for
the limited purpose of showing that they differed on his status as a battered man. The
court saw no prejudice to the defense, because neither party would be arguing that Ivan
was a battered man, and a limiting instruction would tell the jury to consider the reports
only on the question of the reliability of expert opinion on battered spouses, not as to
whether Ivan actually was a battered spouse. Because of that limitation, the court refused
to permit defense counsel to go into the basis for Dr. Weinstein‘s opinion.
                                             32
       During his cross-examination of Ryan, the defense psychologist, the prosecutor
asked if Ryan was aware of conflicting opinions on Ivan, one that he was a battered man
and one that he was not. Ryan said he was aware of them. The court instructed the jury:
―The doctor has testified to other opinions that he is aware of with regard to Ivan
Gonzales. You are allowed to use that and consider that only for a limited purpose. You
are allowed to consider it only for the limited purpose of considering the reliability of
such expert testimony in this area in general. You are not to consider it on the question
of whether Ivan Gonzales is or is not a battered person. I emphasize to you that you are
to decide only Veronica Gonzales‘s issues in this case. It is her status, her case, that is
before you. In this case, both sides will be arguing to you at the end of the case that Ivan
Gonzales is not a battered man. So the reasons for your not considering it on that issue
are obvious and, I think, clear to you.‖
       Defendant contends the court abused its discretion in weighing the prejudicial and
probative impacts of the reports, and violated her federal Fifth, Sixth, and Fourteenth
Amendment rights to present a defense by precluding defense counsel from exploring the
bases of Dr. Weinstein‘s opinion that Ivan was a battered spouse.12 The question is a
close one, as the trial court recognized. The scope of cross-examination of an expert
witness is especially broad. (People v. Lancaster (2007) 41 Cal.4th 50, 105.) Evidence
that is inadmissible on direct examination may be used to test an expert‘s credibility,
though the court must exercise its discretion under Evidence Code section 352 to limit the
evidence to its proper uses. (People v. Stanley (1995) 10 Cal.4th 764, 833.) Experts who
testify regarding a mental condition may be questioned regarding their awareness of other


12
       Defendant also contends the hypothetical posed by the prosecutor to Bernee,
regarding conflicting expert opinions, amounted to misconduct. However, defendant did
not preserve this claim below; counsel argued only that the question ―border[ed] on
misconduct.‖ Even if the objection had been made, the prosecutor‘s questions were not a
deceptive tactic that injected incurable unfairness into the trial. (People v. Friend, supra,
47 Cal.4th at p. 29.)
                                              33
inconsistent opinions by similar experts. (People v. Montiel (1993) 5 Cal.4th 877, 923-
924.)
        Here, there is some merit in defendant‘s claims. The probative value of the
opinion evidence was minimal. The fact that conflicting opinions had been obtained
specifically on Ivan‘s status as a battered man carried little weight for the very limited
purpose the court allowed, i.e., determining the general reliability of expert opinion on
battered spouse syndrome. There were already conflicting opinions in defendant‘s case.
Ryan readily conceded that experts could differ, even before the prosecutor questioned
him about the opinions on Ivan. Moreover, the court permitted the jury to weigh the fact
that an expert had deemed Ivan a battered spouse, yet barred defendant from exploring
the bases for that opinion.
        Nevertheless, any error was plainly harmless. A trial court‘s determinations under
Evidence Code section 352 do not ordinarily implicate the federal Constitution, and are
reviewed under the ―reasonable probability‖ standard of People v. Watson (1956) 46
Cal.2d 818, 836. Assuming defendant has a cognizable federal constitutional claim here,
we would also find the error harmless beyond a reasonable doubt under the standard
prescribed in Chapman v. California (1967) 386 U.S. 18, 24. Our reasons are several.
        First, the battered woman theory put forward by the defense was damaged far
more seriously and directly by other evidence than by the conflicting expert opinions on
Ivan‘s status. A number of witnesses, including those who knew the family well, like the
Lunas and Lorena Peevler, testified that defendant was the dominant spouse in the
relationship. The wife of the grocery store owner confirmed that impression with her
testimony regarding the spouses‘ behavior in the store. Ivan, Jr., in testimony presented
by the defense, said his mother was more likely than his father to get her way. Most
tellingly, defendant‘s responses in the July 24 police interview were flatly inconsistent
with the notion that she was intimidated by Ivan. When told that he had blamed her,
defendant displayed anger and surprise, and promptly began implicating him, along with
                                             34
herself, in the prolonged and varied course of abuse that led to Genny‘s death. She did
not suggest she had been acting under Ivan‘s control, and her statements certainly did not
reflect an effort to protect him. Although she indicated at times that Ivan had hit her, she
more frequently described blows he inflicted on the children. At the end of the interview,
she emphatically agreed that Ivan should be punished for what had happened to Genny.
Defendant‘s statements and demeanor were quite incompatible with the defense theory
that she was the cowed victim of a battering husband. The defense experts‘ attempts to
explain away her performance during this videotaped interview were feeble. Compared
to the powerful videotape evidence of defendant‘s interview, and the testimony of
witnesses who knew the couple well, the impact of conflicting opinion evidence on
whether Ivan was a battered spouse was minimal.
       Second, the prosecutor did not dwell on the opinion evidence. Even including his
earlier unsuccessful attempts to bring up the idea that Ivan claimed to be a battered man,
in the hypothetical posed to Bernee and the cross-examination of defendant on the letter
she received from Ivan, no great emphasis was placed on this factor. In closing, the
prosecutor mentioned it only as an example of the unreliability of expert opinion in the
fields of psychology and psychiatry.
       Finally, the battered woman theory was not a defense to the crimes charged
against defendant. The jury could have believed she was a battered spouse, yet also
decided that her failure to protect Genny and her participation in severe acts of child
abuse were criminally culpable. Indeed, the abuse of Genny was so horrific, and so much
worse than any of the spousal abuse defendant claimed to have suffered, that the jury was
highly likely to hold her responsible even if it accepted the battered woman theory. For
all the above reasons, we have no doubt that the result of the trial would have been the
same had the court refused to permit the prosecutor to impeach Ryan with the conflicting
expert opinions on Ivan‘s status as a battered man.


                                             35
                     c. Requiring Defendant to Submit to Interviews with
                        Prosecution Experts
       Before trial the prosecutor moved for an order directing defendant to submit to a
psychiatric evaluation by a prosecution expert, if she produced expert testimony of her
own about her mental condition. The motion was based on People v. Danis (1973) 31
Cal.App.3d 782 (Danis) and Evidence Code section 730, among other authorities.
Defendant opposed the motion, claiming she was not presenting a defense based on her
mental condition but instead offering battered woman syndrome as an explanation for
certain of her actions, such as failing to protect Genny and lying to the police. The court
issued a tentative ruling that the prosecution‘s request was proper under Danis.
       The parties argued the matter on several occasions. The prosecutor noted that the
defense would be calling Bernee, a marriage and family therapist, as well as Ryan, a
psychologist. He asked that two prosecution experts be allowed to examine defendant,
Kaser-Boyd and Dr. Mills. He said Kaser-Boyd would testify on battered woman
syndrome, and Mills on more general psychiatric issues. The prosecutor described Dr.
Mills as a ―debunker.‖ The defense, in addition to maintaining that no examination
should be permitted, objected to the idea of more than one examiner and particularly to
an examination by Dr. Mills. Counsel argued that Dr. Mills had no expertise in battered
woman syndrome, and that his views of defendant would be colored by his examination
of Ivan before Ivan‘s trial. Moreover, the defense would be at a disadvantage because it
had no opportunity for an expert to examine Ivan. The court granted the prosecutor‘s
request. It saw no legal obstacle to examinations by two experts, and found it reasonable
for one to examine defendant with regard to battered woman syndrome and one to
determine more generally whether other mental conditions might explain her behavior.
The court also saw no reason why Dr. Mills should not be one of the examiners, though it
was inclined to exclude any statements Ivan had made to Mills.13

13
       Defendant‘s writ petition challenging the court‘s order was denied.
                                            36
       Defendant was examined by Kaser-Boyd, but refused to submit to examination by
Dr. Mills. The defense was aware that a consequence of that refusal was that the jury
would be told it could consider her decision in its evaluation of the expert testimony. At
the conclusion of the guilt phase, the court advised the jury that it had ordered
examinations by Kaser-Boyd and Mills, that defendant had refused to be examined by Dr.
Mills, and that her refusal ―may be considered by you when weighing the opinions of the
defense experts in this case. The weight to which this factor is entitled is a matter for you
to decide.‖
       Defendant raises a number of claims of error regarding the court‘s rulings. She
contends (1) there was no authority for the court to order any examinations by
prosecution experts; (2) in any event, it was improper to order examinations by more than
one such expert; (3) it was improper to permit an examination by Dr. Mills in particular;
and (4) Dr. Mills‘s testimony amounted to improper profile evidence.
       Defendant argues that the Danis holding, recognizing the trial courts‘ inherent
power to authorize prosecution experts to examine defendants who place their mental
state at issue, did not survive the enactment of the criminal discovery statutes in 1990. 14
(Danis, supra, 31 Cal.App.3d at p. 786; see § 1054, subd. (e) [―no discovery shall occur
in criminal cases except as provided by this chapter, other express statutory provisions, or
as mandated by the Constitution of the United States‖].) After defendant‘s opening brief
was filed, this court vindicated her argument in Verdin v. Superior Court (2008) 43
Cal.4th 1096, 1106 (Verdin). The Attorney General concedes that the trial court‘s order
was based on Danis, and therefore could not stand under Verdin. However, the Attorney




14
       Defendant claims the order for examination by prosecution experts violated her
privilege against self-incrimination under the Fifth and Fourteenth Amendments, as well
as her Sixth and Fourteenth Amendment rights to due process and the effective assistance
of counsel in that counsel was not allowed to be present during the examinations.
                                             37
General contends we should not apply Verdin retroactively, and alternatively claims the
error did not prejudice defendant.
       The Attorney General‘s retroactivity argument is without merit. Our opinion in
Verdin did not declare a new rule, but simply established the meaning of the discovery
statutes as they then stood.15 Because Verdin ―only elucidate[d] and enforce[d] prior law,
no question of retroactivity arises.‖ (Donaldson v. Superior Court (1983) 35 Cal.3d 24,
36; see Burris v. Superior Court (2005) 34 Cal.4th 1012, 1023; People v. Mutch (1971) 4
Cal.3d 389, 394-395. See also People v. Wallace, supra, 44 Cal.4th at p. 1087 [applying
Verdin].)
       Although we held in Verdin that the criminal discovery statutes had deprived trial
courts of their inherent authority to require a criminal defendant to submit to a mental
examination, we also made it clear that there was a separate statutory basis for appointing
mental health experts. (Verdin, supra, 43 Cal.4th at p. 1109.) Under Evidence Code
section 730, ―[w]hen it appears to the court, at any time before or during the trial of an
action, that expert evidence is or may be required by the court or by any party to the
action, the court on its own motion or on motion of any party may appoint one or more
experts to investigate, to render a report as may be ordered by the court, and to testify as
an expert at the trial of the action relative to the fact or matter as to which the expert
evidence is or may be required.‖ In Verdin, the Court of Appeal had denied the
defendant‘s pretrial petition for writ relief. We reversed, noting that the People had not
requested the appointment of an expert under Evidence Code section 730, nor had the
trial court made such an appointment. Thus, the People had forfeited reliance on that
15
        The Legislature promptly responded to Verdin by enacting section 1054.3,
subdivision (b), which authorizes courts to order examination by a mental health expert
retained by the prosecution whenever a defendant places his or her mental state at issue
through expert testimony. (Stats. 2009, ch. 297, § 1.) Whether the new statute would be
applicable on a retrial is a question we need not consider. (See Tapia v. Superior Court
(1991) 53 Cal.3d 282, 288, 299-300; People v. Ledesma (2006) 39 Cal.4th 641, 663-664;
People v. Mattson (1990) 50 Cal.3d 826, 849.)
                                              38
source of authority. (Verdin, at pp. 1109-1110.) Nevertheless, we noted that the People
were free to seek an appointment under Evidence Code section 730 upon remand.
(Verdin, at p. 1117.)
       Here, defendant did not argue in the trial court that the prosecutor‘s request was
precluded by the discovery statutes.16 Had she done so, the court could and likely would
have resorted to its power to appoint experts under Evidence Code section 730, which
was invoked in the prosecutor‘s motion. 17 During arguments on the motion, the court
twice mentioned its authority under Evidence Code section 730, although the Attorney
General properly concedes that the court ultimately relied on its inherent authority under
Danis. However, defendant‘s failure to object on the statutory grounds discussed in
Verdin bars her from raising the error on appeal. A different rule would be unfair to the
prosecution and the trial court, which could have avoided the error had it been brought to
their attention. (People v. Saunders (1993) 5 Cal.4th 580, 590; see also, e.g., In re Seaton
(2004) 34 Cal.4th 193, 198.) In any event, even if defendant had not forfeited the claim,
the Verdin error would be harmless. The court expressly recognized that the interests of
―fairness‖ and ―the ascertainment of truth‖ required the prosecutor to be able to meet the
evidence of the defense experts. Its mistaken reliance on Danis was not prejudicial,
given the alternate source of authority provided by Evidence Code section 730.

16
       Defendant asserts she made such a claim, but the record shows otherwise.
Defendant refers to a page of her opposition where she relied on her Fifth Amendment
privilege and claimed that ―statements by a defendant are specifically omitted from the
discovery provisions of the Penal Code (section 1054.3).‖ This claim did not alert the
court to the idea that the prosecutor‘s request for examination was barred by the
discovery statutes; rather, it argued that defendant‘s statements were exempt from
discovery. That argument was incorrect, of course; statements made by defendant to her
own experts and reflected in their reports were discoverable and were provided to the
prosecution without objection below.
17
       Defendant suggests the court was unlikely to appoint experts, because their fees
would have been payable from the court‘s own budget. However, Evidence Code section
731, subdivision (a) specifies that fees fixed under Evidence Code section 730 are
payable from the county treasury.
                                            39
       Defendant also argues, as she did below, that she did not raise her mental
condition as a defense, and therefore did not waive her constitutional rights against self-
incrimination and due process. This position is untenable. The centerpiece of the
defense was defendant‘s assertion that her actions were explained by battered woman
syndrome. Defendant squarely placed her mental state at issue, claiming she was a
victim unable to overcome her fear of Ivan and protect the child she had taken into her
care. The evidence she presented in support of that claim was subject to rebuttal. As the
Attorney General points out, had the defense been content with evidence of battered
woman syndrome in general, without presenting experts who had examined defendant,
the prosecution would have had no ground for requesting an examination by its experts.
But since the defense did present expert testimony based on interviews with defendant,
the court properly found that fairness required giving the prosecution the opportunity to
counter that testimony. It is settled that a defendant who makes an affirmative showing
of his or her mental condition by way of expert testimony waives his or her Fifth and
Sixth Amendment rights to object to examination by a prosecution expert. (People v.
Carpenter (1997) 15 Cal.4th 312, 412-413; People v. McPeters (1992) 2 Cal.4th 1148,
1190; Danis, supra, 31 Cal.App.3d at p. 786.) 18
        Defendant further claims that a rule exposing her to examination by prosecution
experts on battered woman syndrome would open the door to compulsory examination of
witnesses who are claimed to suffer from this syndrome, or from rape trauma syndrome.
However, nothing in the Danis rule, now codified in section 1054.3, subdivision (b),
implicates the situation of witnesses, who are not parties and do not choose to place their
mental condition at issue as defendants may.
       Defendant contends the court erred by ordering her to submit to more than one
interview, by instructing the jury that it could consider her refusal to be interviewed by

18
        The same reasoning applies to defendant‘s claim that her Fourteenth Amendment
right to due process was violated.
                                             40
Dr. Mills, and by preventing her from explaining the reasons for her refusal when she
was on the witness stand.19 Defendant‘s briefs are devoid of legal authority in support of
these arguments. We cannot say the court abused its discretion by deciding that two
prosecution experts would be permitted to rebut the testimony of two defense experts.
The jury instruction on defendant‘s refusal to be examined was similar to the instruction
approved in People v. Carpenter, supra, 15 Cal.4th at pp. 412-413. While the instruction
was infected by the Verdin error in ordering the examinations (People v. Wallace, supra,
44 Cal.4th at p. 1087), defendant forfeited that claim and was not prejudiced in any event,
as discussed above. Moreover, the court permitted her to explain that her refusal to be
examined by Dr. Mills was based on the advice of counsel. Defendant claims she should
have been able to tell the jury that her counsel believed Dr. Mills was not an expert in
battered woman syndrome, and that Dr. Mills had an unfair advantage because he, unlike
the defense experts, had interviewed Ivan. However, Dr. Mills did not testify about
battered woman syndrome, and defense counsel established his lack of expertise in that
area on cross-examination. It is unclear how defendant would have benefited had the
jury learned of Dr. Mills‘s access to Ivan. In any event, hearsay conversations between
defendant and her counsel regarding their legal strategy were clearly inadmissible.
       Defendant argues that it was an abuse of discretion to permit Dr. Mills to evaluate
defendant over the defense‘s objections that he was biased by his prior evaluation of Ivan
and lacked expertise in battered woman syndrome.20 Again, defendant provides no legal
authority for her claim, and we find no merit in it. It is a matter of speculation what
effect the doctor‘s interview with Ivan may have had, and the jury did not learn that he
had evaluated Ivan. Nor did the prosecutor seek to use Dr. Mills as an expert on battered

19
        Defendant asserts violation of her federal Fifth, Sixth, and Fourteenth Amendment
rights to a fundamentally fair trial, and her Fifth Amendment privilege against self-
incrimination.
20
        She claims violation of her federal Fifth, Sixth, and Fourteenth Amendment due
process rights, and her Eighth Amendment right to a reliable verdict.
                                             41
woman syndrome. Instead, he offered the doctor‘s testimony for purposes of general
psychiatric evaluation and the exploration of alternate explanations for defendant‘s
mental state. Defendant fails to establish an abuse of discretion in the order allowing Dr.
Mills to serve as one of the prosecution experts.
       Finally, defendant claims the court erred by allowing Dr. Mills to testify that
defendant had an incentive to malinger because she faced the death penalty, and that her
inconsistent statements on various subjects reflected malingering. She analogizes the
doctor‘s testimony to improper profile evidence.21
       Before Dr. Mills took the stand, defense counsel objected to any testimony that
would invade the province of the jury by opining on defendant‘s credibility. The court
agreed that it would be improper for the doctor to tell the jury what to think about
defendant‘s credibility, but ruled that it would be proper for him to express a view on
whether it was reasonable for another expert to form a professional opinion based on
defendant‘s statements. The court noted that the issue ―somewhat straddl[es] the line
between what a jury should believe and what a mental health expert should believe in
forming an opinion.‖ It advised the prosecutor to ―draw your questions carefully and talk
to the doctor carefully about not telling the jury what they should believe.‖ Regarding
the significance of the fact that defendant was facing the death penalty, the court stated,
―we don‘t need an expert to opine that somebody facing the death penalty has a motive to
generally lie.‖ The prosecutor said he had no intention of asking Dr. Mills about that,
because he did not want to bring the subject of penalty into the guilt phase.
       However, when Dr. Mills took the stand the prosecutor made it clear that he
intended to elicit an opinion that ―the incentive for malingering in a case like this is
high.‖ Defense counsel‘s objection was overruled. Dr. Mills testified that the death
penalty created a ―very high‖ incentive for ―embellishing or distorting.‖ In the remainder

21
      Again, defendant refers to her federal Fifth, Sixth, and Fourteenth Amendment due
process rights, and her Eighth Amendment right to a reliable verdict.
                                              42
of his direct testimony, which was not prolonged, Dr. Mills described the nature of
posttraumatic stress disorder, the problems experts have with unreliable data from those
whose stakes in litigation give them reason to lie, and some of the inconsistencies in
defendant‘s statements that led him to believe a reliable diagnosis of posttraumatic stress
disorder was impossible.
       During a break, defense counsel expressed concern over the doctor‘s views on the
death penalty as a motive for lying, given the court‘s earlier ruling. Counsel did not,
however, ask for an admonition to the jury. The court did not share counsel‘s concern,
noting that the jury was well aware of the stakes in the case and taking the view that the
prosecutor‘s questions properly had to do with ―evaluating credibility and taking a
history.‖ Counsel responded that if Dr. Mills‘s view on this point was not adding
anything to what the jury already knew, it was more prejudicial than probative for the
expert to ―keep highlighting it.‖ The court overruled the objection.
       The proper scope of expert testimony is limited to subjects ―sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact.‖ (Evid.
Code, § 801, subd. (a); see People v. Lindberg (2008) 45 Cal.4th 1, 45.) Here, the court
properly determined in advance of Dr. Mills‘s testimony that the doctor‘s view on the
death penalty as an incentive to malinger was not necessary to assist the jury, and the
prosecutor agreed not to explore the subject. However, the prosecutor proceeded to ask
the doctor generally about defendant‘s incentive for malingering, and Dr. Mills
immediately brought up the death penalty in his response. The court should have
sustained defense counsel‘s objections, and an admonishment would have been proper.
       The possibility of prejudice, however, was minimal. As the court observed, it was
―not news to the jury‖ that it was a capital case, and the incentive described by Dr. Mills
was an obvious one. Defense counsel effectively cross-examined Dr. Mills on this point,
getting him to concede that the stakes were high for all concerned in the case, and that a
defendant is not to be disbelieved simply because he or she is facing the death penalty.
                                             43
Moreover, far more direct and damaging evidence of defendant‘s malingering was
supplied by her own expert, Ryan, who told the jury that defendant‘s responses to the
personality tests he gave her reflected a high degree of falsity, to such an extent that the
results of one test were invalid.
       Defendant contends the court also erred by permitting the doctor to give his view
on whether defendant‘s malingering, as reflected in the conflicts in her statements about
various events, undermined the opinions given by her expert witnesses. We disagree.
The defense relied heavily on expert testimony to explain the inconsistencies in
defendant‘s statements. It was proper to allow the prosecution to rebut that testimony
with Dr. Mills‘s opinion that the foundation for the defense experts‘ conclusions was
unreliable.
                     d. Exclusion of Statements by Ivan
       Defendant filed a pretrial motion seeking the admission of certain statements made
by Ivan when he was questioned by detectives after Genny‘s death. Defendant
summarized the statements as follows: ―[T]he defendant and the codefendant left the
bathroom together after placing the decedent in the tub. The codefendant admits that
only he came back into the bathroom after both had previously left. He admits that the
decedent was still alive when he went back to the bathroom. The codefendant indicated
that he did not think the water was hot. He said the decedent was making a noise but he
thought it was because she didn‘t want to take a bath. He admits he set the water and if
she had told him it was hot he would have taken her out and put cool water in. The
codefendant admits that the child may have been too scared of him to say anything. He
admits yelling at her to take a bath and not to come out.‖
       Defendant contended these statements amounted to declarations against interest
under the hearsay exception codified in Evidence Code section 1230. When the motion
was heard, counsel argued that because Ivan knew he was under suspicion when he was
interrogated, his statements tended to incriminate him and therefore were reliable enough
                                              44
to be admitted. Counsel was unwilling, however, to concede that exculpatory statements
by Ivan should be admitted, characterizing them as ―self-serving.‖ The court denied the
motion, ruling that all of Ivan‘s statements were essentially exculpatory, not self-
incriminating. The court reasoned that while certain statements taken out of context
might be useful to defendant for casting blame on Ivan, those statements could not be
characterized as admissions that no reasonable person would make unless they were true.
       After Ivan‘s trial concluded, defendant sought reconsideration. In this motion, she
argued that the prosecutor had used Ivan‘s statements to prove his guilt, telling Ivan‘s
jury that the statements contained ―kernels of truth.‖ If the statements were reliable
enough to be used against Ivan, defendant asserted they should also be admitted at her
trial. In arguing this motion, counsel told the court he now recognized that if defendant
were allowed to introduce certain of Ivan‘s statements, the prosecutor could ―put on the
whole tape if he wants to.‖ The court adhered to its previous ruling, finding that Ivan‘s
statements were not declarations against interest but instead efforts to deny responsibility
for Genny‘s death.
       Defendant again pressed the court to allow Ivan‘s statements into evidence after
the prosecutor raised the issue of Ivan‘s attempt to use a battered spouse defense. (See pt.
II.A.1.a., ante.) Counsel argued that Ivan‘s statements would ―set the record straight as
to what Ivan actually did say as far as his involvement is concerned.‖ Counsel renewed
this claim after the court permitted the prosecutor to inform the jury that an expert had
deemed Ivan a battered spouse. The court ruled that the prosecutor‘s comments did not
open the door to the admission of Ivan‘s statements to the police.
       In this court, defendant claims the court erred by ruling that Ivan‘s statements
placing him in the bathroom with Genny at crucial times were inadmissible under the
hearsay exception for declarations against interest. We disagree. Evidence Code section
1230 permits a hearsay statement to be admitted if it ―so far subjected [the declarant] to
the risk of civil or criminal liability . . . that a reasonable man in his position would not
                                              45
have made the statement unless he believed it to be true.‖ ― ‗The focus of the declaration
against interest exception to the hearsay rule is the basic trustworthiness of the
declaration. [Citations.] In determining whether a statement is truly against interest
within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy
to be admissible, the court may take into account not just the words but the circumstances
under which they were uttered, the possible motivation of the declarant, and the
declarant‘s relationship to the defendant.‘ [Citation.]‖ (People v. Geier (2007) 41
Cal.4th 555, 584 (Geier).)22
       Here, the court accurately noted that Ivan‘s statements were attempts to excuse
himself from liability. Some were plainly unbelievable, such as his claim that he would
have done something if Genny had told him the water was hot. The court observed that a
child being severely scalded would make it obvious to anyone that ―she was in mortal
danger.‖ Defendant claims that Ivan incriminated himself merely by admitting he was in
the bathroom around the time Genny was burned. However, ― ‗[e]ven when a hearsay
statement runs generally against the declarant‘s penal interest and redaction has excised
exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia
of trustworthiness to qualify for admission. . . .‘ [Citation.]‖ (Geier, supra, 41 Cal.4th at
p. 584.) This is such a case.
       Defendant argues that even if Ivan‘s statements were false, they reflected
consciousness of guilt. However, basic trustworthiness and factual truthfulness are
required for a statement to qualify for admission under Evidence Code section 1230.
(Geier, supra, at p. 584.) Defendant essentially concedes that Ivan‘s statements did not
disclose the true circumstances of Genny‘s death. She goes so far as to contend that
Ivan‘s statements were lies comparable to her own lies to the police, and thus were

22
      We note that Ivan‘s statements were admissible at his trial as statements of a party
under Evidence Code section 1220. A different analysis is required when a nonparty‘s
statements are offered as declarations against interest under Evidence Code section 1230.
                                             46
admissible for the nonhearsay purpose of showing that ―dependent spouses would lie to
protect the other.‖ This unusual theory was not raised below. We do not address it here,
except to note that it does not tend to support the conclusion that defendant was innocent.
       In any event, Ivan‘s consciousness of guilt was not at issue; both sides at
defendant‘s trial took the position that he was knowingly guilty of Genny‘s murder. The
court, with the agreement of counsel, informed the jury that Ivan had been convicted and
sentenced to death. It advised the jury that this information was only relevant to its
evaluation of the testimony of witnesses who were friends or family members of both
defendant and Ivan, and reminded the jury that only defendant‘s guilt was at issue in the
present trial. Thus, statements by Ivan reflecting his guilt were not relevant on any
contested issue.
       Defendant also claims the trial court should have allowed her to bring in Ivan‘s
statements to rebut the prosecutor‘s insinuations that Ivan had employed a battered
spouse defense. The argument lacks logic. Ivan‘s statements to the police were not
inconsistent with a battered spouse claim, nor did they tend to reflect the nature of the
defense his attorneys presented.
              2. The Evidence of Defendant’s History of Abuse as a Child
       Before trial, the prosecutor objected to the admission of evidence of the abuse
defendant suffered as a child, noting that he would have to respond to it and time would
be spent on collateral issues. The defense insisted the evidence was relevant because its
expert psychologist, Ryan, believed defendant‘s experiences as a child had contributed to
her battered woman syndrome, and were mirrored in the dynamics of her marriage. The
court agreed that the defense was entitled to bring in this evidence.
       Defendant testified at length about her childhood abuse at the hands of her mother
and stepfather. Ryan testified that the emotional and physical abuse defendant‘s mother
inflicted on her, and the sexual abuse by her stepfather, which her mother refused to
believe, contributed to her low self-esteem and to the development of a marital
                                             47
relationship in which she became a battered woman. On cross-examination, Ryan agreed
that batterers tend to come from violent homes, and that children tend to identify with and
model their behavior after the parent of the same gender as the child. A girl, for instance,
might ―learn domestic violence from her mother.‖ On redirect, Ryan said that about 75
percent of battered women come from a home where they observed domestic violence,
and that defendant‘s experience of abuse as a child made it more likely that she would
become a battered woman. She would submit to a battering relationship more readily
than someone who had not had such experiences.
       Cynthia Bernee, the other defense expert on battered woman syndrome, also
testified that childhood abuse is a significant factor in the syndrome. In defendant‘s case,
her experiences had taught her that she lacked control over her environment and
predisposed her to become a victim of domestic violence by Ivan.
       After the defense rested, the court and counsel engaged in an extended discussion
on the scope of the prosecutor‘s rebuttal regarding the child abuse evidence. The
prosecutor said his expert psychologist, Kaser-Boyd, would testify that victims of
childhood abuse develop poor rage control mechanisms and tend to model the abusive
behavior of their parents. He conceded that the evidence was similar to profile evidence,
and could not have been presented as part of his case-in-chief, but claimed the defense
had opened the subject by presenting evidence that defendant‘s childhood abuse set her
up to become a victim of domestic abuse as an adult. The court expressed concern about
testimony directly tying defendant‘s experiences as a child to her propensity for
committing child abuse herself. It noted that the defense evidence of abuse and battered
woman syndrome was limited to explaining defendant‘s failure to protect Genny.
       The defense responded that while it would not object to a prosecution expert
testifying that defendant‘s experiences made her more likely to be a battering spouse, it
did oppose testimony that she was more likely to be a child abuser. There was a good
deal of discussion about whether, if the prosecutor introduced evidence that Ivan‘s
                                            48
childhood home was not a violent one, the defense would be able to introduce Ivan‘s
report to Dr. Weinstein that his brother and an uncle had molested him. The prosecutor
ultimately decided that his rebuttal as to defendant‘s child abuse would be limited to two
points: (1) that children model their parents‘ behavior and may learn from abuse to react
with rage as adults; and (2) that child abuse can set a person up to be an abuser as easily
as a victim.
       The court suggested that, as so limited, the proffered testimony was proper
rebuttal. The defense objected that it had not tried to show that defendant‘s experience
made her less likely to be a child abuser, and that the inference the prosecutor sought to
draw went directly to an ultimate issue in the trial, unlike the defense‘s battered woman
syndrome evidence. The court was not persuaded.
       The prosecutor questioned Kaser-Boyd about the concept of role modeling. She
responded that children learn by imitation and parents are strong role models, so that
children may imitate the behavior they see at home and subsequently reenact it. The
prosecutor asked if poor emotional control was related to role modeling. Kaser-Boyd
said: ―If one has had a role model with poor emotional control who acted out frustration
in emotionally uncontrolled ways, let‘s say a parent who goes into a rage or a parent who
is abusive in their actions, hits too hard, does things that make a child suffer, the child
goes through terror, really, when they experience that. And the act of, or the experience
of terror, we believe, causes changes in personality, and it also causes changes in the
developing brain. [¶] Little people who feel terrified have more cortisol in their brains.
They have often the frequent tapping of adrenalin and, over the long term, that damages
parts of the brain that are required for good emotional control.‖
       Kaser-Boyd explained that children do not necessarily reenact exactly the abuse
they suffered. Asked whether the research showed that battered women could abuse
children themselves, she responded that a leading study showed 28 percent of battered
women admitted being abusive to their children. In her own practice, she did not have a
                                              49
statistic but had found that ―it‘s definitely the case that some battered women are also
physically abusive to their children.‖ The prosecutor proceeded to question Kaser-Boyd
about her examination of defendant, but elicited no opinion as to whether defendant‘s
experience of child abuse predisposed her to be a child abuser herself.
         Kaser-Boyd‘s testimony lasted for an entire day. The following day, the jury was
excused and the court and counsel discussed instructions. On the next court day, before
proceeding with the defendant‘s surrebuttal witnesses, the court gave the following
instruction to the jury, which was repeated at the end of the guilt phase:
         ―It‘s important for you to understand the purpose for which certain evidence has
been offered. The defense has offered defendant‘s testimony that she did not commit the
crimes for which she‘s charged. They‘ve also offered extensive evidence regarding the
battered woman‘s syndrome. The battered woman‘s syndrome evidence is not offered to
show that someone suffering from the battered woman‘s syndrome could not or would
not commit the crimes charged; rather, it is offered to prove a potentially innocent
explanation for defendant‘s failure to protect Genny and failure to provide medical care
for her as well as to provide a context for defendant‘s statements following Genny‘s
death.
         ―Likewise, the people have offered evidence that a person‘s childhood physical
abuse could result in that person growing up to be either a victim or an abuser. This is
not offered to show that someone abused as a child is more likely to be an abuser as an
adult; rather, it is offered to show that being a victim of physical abuse as a child is not
inconsistent with commission of violent crimes as an adult.
         ―You must not consider this evidence for any purpose other than the purposes for
which it was offered.‖
         Defendant argues that Kaser-Boyd‘s testimony amounted to improper ―battering
parent syndrome‖ evidence, of the kind disapproved in People v. Walkey (1986) 177


                                              50
Cal.App.3d 268 (Walkey).23 In Walkey, a physician testified that the murder victim, a
child, had been abused. The doctor described the profile of a child abuser, telling the jury
that the most important single factor was being abused oneself as a child. After the
defendant testified in his own behalf, the trial court allowed the prosecutor to cross-
examine him about abuse he had suffered as a child. In closing, the prosecutor argued
that the defendant fit the profile of a battering parent. (Id. at p. 277.) The Court of
Appeal held it was error to permit what amounted to character evidence showing that the
defendant was a typical battering parent. It noted, however, that if a defendant introduces
evidence of his good character, cross-examination to counter that evidence would be
proper. (Id. at pp. 278-279.)
       Here it was defendant who, over the prosecutor‘s objection, introduced the subject
of her abuse as a child and the effect it had on her as an adult. The trial court properly
allowed the prosecutor to respond to that evidence. This is not a case like Walkey, where
the prosecution improperly sought to prove guilt on the basis of general characteristics.
(See also People v. Robbie (2001) 92 Cal.App.4th 1075, 1086 [―Profile evidence is
unfairly relied upon to affirmatively prove a defendant‘s guilt based on his match with
the profile‖].)
       Defendant argues, as she did below, that her evidence was strictly limited to the
impact of child abuse on the likelihood of becoming an abused spouse, so that proper
rebuttal should have also been so limited. We disagree. ―The scope of rebuttal evidence
is within the trial court‘s discretion, and on appeal its ruling will not be disturbed absent
‗ ― palpable abuse.‖ ‘ [Citation.]‖ (People v. Wallace, supra, 44 Cal.4th at p. 1088.)
Defendant introduced evidence of her childhood abuse in an attempt to bolster her claim
that she was an abused spouse. The purpose of this evidence was to explain her failure to
protect Genny and her contradictory statements to the police, including admissions that

23
     Defendant claims her rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to a fair trial and a reliable verdict were violated.
                                              51
she participated in some of the abuse Genny suffered. The defense experts testified that a
battered woman may take responsibility for acts of abuse perpetrated by the battering
spouse. Certainly it was proper for the prosecutor to counter this testimony with expert
opinion that an abused child may also grow up to be an abuser. The trial court instructed
the jury on the limited purpose for which this testimony could be considered. No error
appears.
      Defendant argues that the court should have permitted her to respond to the
prosecutor‘s rebuttal by questioning Ivan‘s brother about his sodomization of Ivan as a
child. However, not only did the brother not testify, but also the prosecutor made no
attempt to show that Ivan had a good childhood. Defendant further claims she should
have been able to call Dr. Weinstein and question him about Ivan‘s report that he had
been sodomized. Defendant did not seek that opportunity below; the defense had rested
by the time this point was discussed, and defense counsel never asked to call Dr.
Weinstein for any purpose other than rebutting the notion that Ivan was not abused as a
child. Defendant‘s argument on this point lacks any merit. It was her choice to bring her
own childhood abuse before the jury. The court properly allowed the prosecutor to
respond to defendant‘s evidence, but nothing in that response justified allowing defendant
to explore Ivan‘s childhood experiences as well.
             3. Instructional Issues
      Defendant complains that the jury instructions on the mental states required for
murder and the special circumstances were incomprehensible.24 However, she fails to
develop a legally coherent argument. She merely recites instructions, parses certain




24
       The prosecutor advanced two theories of first degree murder: murder perpetrated
by torture, and felony murder committed in the course of mayhem. (§ 189.) Two special
circumstances were alleged: torture felony murder (§ 190.2, subd. (a)(18)) and mayhem
felony murder (§ 190.2, subd. (a)(17)(J)).
                                            52
terms, and questions whether the jury could have understood them. 25 The Attorney
General correctly notes that many of the instructions with which defendant now quibbles
were not objected to below, or were requested by defense counsel. The doctrine of
invited error bars defendant from challenging instructions she requested as a tactical
choice. (People v. Harris (2008) 43 Cal.4th 1269, 1293.) While defendant may raise a
claim that her substantial rights were affected by instructions to which she did not object
(§ 1229; People v. Benavides (2005) 35 Cal.4th 69, 111), she falls well short of making
such a showing.
       Defendant claims the instructions left the jury with the impression that mayhem
felony murder must be first degree murder. That impression was accurate; mayhem
felony murder is by statute murder in the first degree. (§ 189.) Defendant objects that
the instructions on the elements of mayhem and the mayhem-murder special
circumstance required no more than the intent to vex, annoy, or injure. That is incorrect;
the instructions properly informed the jury that mayhem felony murder requires the
specific intent to commit mayhem. (People v. Sears (1965) 62 Cal.2d 737, 744-745.)
The fact that the instruction on the elements of mayhem mentioned only the intent to vex
or annoy did not render the instructions confusing or circular, as defendant claims. (See
People v. Hayes (2004) 120 Cal.App.4th 796, 804-805.)
       Defendant asserts the instructions did not adequately distinguish between first
degree murder by torture and second degree torture felony murder. However, the
distinction was accurately noted by defense counsel when he pressed for the second
degree torture felony murder instruction: the second degree offense does not require
premeditation. This difference was plain on the face of the instructions, and defense



25
      She claims her rights to due process and a jury trial under the Fifth and Sixth
Amendments were violated, as well as her right to a reliable factfinding process under the
Eighth and Fourteenth Amendments.
                                            53
counsel explained it to the jury as ―real simple‖ in his closing argument. There was no
error here.
       Defendant next claims that CALJIC No. 8.34, explaining aiding and abetting
liability for second degree torture felony murder, failed to distinguish between first and
second degree murder by an aider and abettor. That distinction was beyond the scope of
the instruction. CALJIC No. 8.27 explained aiding and abetting liability for first degree
mayhem felony murder. Together, these two instructions covered the liability of an aider
and abettor for felony murder in this case. Defendant complains that no instruction
directly explained aiding and abetting liability for first degree murder by torture.
However, the jury was instructed generally and properly on the liability of aiders and
abettors, and those instructions were sufficient to guide the jury in determining whether
defendant aided and abetted a first degree murder by torture. Defendant did not request a
more specific instruction. (See People v. Bennett (2009) 45 Cal.4th 577, 598.)
       Defendant notes that the definition of torture was presented to the jury as it related
to torture as a lesser related offense. She contends the jury would not have understood
that the definition also applied to the earlier instructions on first degree murder by torture
and second degree torture felony murder. We are satisfied, however, that there is no
reasonable likelihood the jury would have failed to make those connections. (See People
v. Wilson (2008) 44 Cal.4th 758, 803.) Defendant also claims the first degree murder by
torture instruction, requiring the jury to find a ―willful, deliberate and premeditated intent
to inflict extreme and prolonged pain,‖ was confusing when compared with the
instruction on the crime of torture, requiring merely the ―intent to cause cruel or extreme
pain and suffering.‖ It was not. Defendant acknowledges that the distinctions between
these intent requirements are explained in People v. Aguilar (1997) 58 Cal.App.4th 1196,
1204-1206, but she contends they were too subtle for the jury. We are not so skeptical of
the jurors‘ abilities. It is fundamental that jurors are presumed to be intelligent and
capable of understanding and applying the court‘s instructions. (People v. Lewis (2001)
                                              54
26 Cal.4th 334, 390.) The record reflects no confusion on the part of the jury, or requests
for further guidance on these points.
       Defendant‘s final argument concerns a modified version of CALJIC No. 8.81.17,
regarding the mayhem-murder special circumstance. At defense counsel‘s request, the
court added the element of specific intent to commit mayhem. Over the prosecutor‘s
objections and with defense counsel‘s agreement, the court also imported a version of the
third paragraph of CALJIC No. 8.80, explaining the intent requirements should the jury
find that defendant was an actual killer, on the one hand, or an aider and abettor, on the
other. Defendant contends the instruction was ―hopelessly complicated.‖ We disagree;
the instruction was approved by defense counsel and comprehensible by the jury.26
              4. Sufficiency of the Evidence of Torture and Mayhem
       Defendant contends the evidence was insufficient to establish the criminal intent
required for mayhem felony murder, murder by torture, and the mayhem and torture
felony-murder special circumstances.27 The argument is meritless. As to the mayhem
felony-murder special circumstance, the jury found that defendant specifically intended


26
       Defendant particularly objects to the following paragraph, which the court derived
from CALJIC 8.80: ―If you are satisfied beyond a reasonable doubt that the defendant
actually killed a human being, you need not find that the defendant intended to kill in
order to find the special circumstance to be true. However, if you find that the defendant
was not the actual killer of a human being, or if you‘re unable to decide whether the
defendant was the actual killer or an aider and abettor, you cannot find the mayhem
special circumstance to be true as to the defendant unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted any act of the commission of
murder in the first degree, or with reckless indifference to human life and as a major
participant, aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted in the commission of the crime of mayhem which resulted in the death of a
human being.‖
       Defendant does not argue that the instruction was legally incorrect, but merely
claims it was confusing. We find no error.
27
       She claims violation of her due process rights under the Fifth and Fourteenth
Amendments, and her right to a reliable verdict under the Eighth Amendment.
                                             55
to commit mayhem, in the course of which Genny was murdered, and that defendant was
either the actual killer or an aider and abettor who acted with the intent to kill or with
reckless indifference to human life. As to the torture felony-murder special circumstance,
the jury found that the murder was intentional and that defendant meant to inflict extreme
and cruel physical pain for a sadistic purpose. The evidence supporting these findings
was more than adequate.
       ―The standard of appellate review for determining the sufficiency of the evidence
is settled. ‗ ―On appeal we review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence — that is, evidence that
is reasonable, credible, and of solid value — from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26
Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 317–320.)‖ ‘ (People
v. Abilez [(2007)] 41 Cal.4th [472,] 504.) ‗. . . We review the sufficiency of the evidence
to support an enhancement using the same standard we apply to a conviction. (People v.
Olguin (1994) 31 Cal.App.4th 1355, 1382.) Thus, we presume every fact in support of
the judgment the trier of fact could have reasonably deduced from the evidence.‘ (People
v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.)‖ (People v. Wilson, supra, 44 Cal.4th
at p. 806.)
       Defendant contends there was no evidence she harbored a specific intent to maim
Genny. She relies on cases holding that evidence showing no more than an
indiscriminate attack on the victim does not support a mayhem felony-murder conviction.
(People v. Sears, supra, 62 Cal.2d 737, 745; People v. Anderson (1965) 63 Cal.2d 351,
359.) This is not such a case. Genny suffered discrete injuries over an extended period
of time, including a serious burn wound on her head, multiple bruises, scars, abrasions,
and lacerations all over her body, subdural and subarachnoid hematomas, and the severe
scalding that ultimately caused her death. The scalding required the bathtub to be filled
in advance with hot water, and Genny was deliberately held down in the water for long
                                              56
enough to cause her skin and toenails to slough off. The jury had more than enough
evidence of specific intent to maim. Direct evidence that defendant actually inflicted the
fatal scalding was lacking, but powerful direct and circumstantial evidence supported the
conclusion that she at least aided and abetted Ivan in inflicting the terminal injury. 28
Defendant admitted that she removed Genny from the bathtub, severely burned, and did
not seek medical help. She also admitted that she used the blow dryer to blow air on
Genny, and the jury could have inferred that defendant inflicted the scars on Genny‘s
cheeks and elsewhere that matched the blow dryer‘s grill.
       A similar analysis applies to defendant‘s claim that the evidence failed to establish
her deliberate intent to inflict the extreme and prolonged pain required for murder by
torture. (See People v. Steger (1976) 16 Cal.3d 539, 546; Walkey, supra, 177 Cal.App.3d
at pp. 275-276.) The long course of painful abuse suffered by Genny suggested that
defendant and Ivan habitually tortured her. Defendant‘s answers in the July 24 interview
with detectives confirmed that she and Ivan acted together. On the day of Genny‘s death,
one or both of them deliberately filled the tub with hot water and forced Genny into it.
Both witnessed the extreme and prolonged pain that ensued as Genny lay dying, and did
nothing to secure assistance until her body began to stiffen. Regarding the torture felony-
murder special circumstance, defendant claims the evidence failed to establish her intent
to kill. We disagree. Defendant admitted she thought Genny was dying when she pulled
her from the bathtub, unconscious. By failing to get help, she ensured Genny‘s death.
The evidence of intent to kill was sufficient.

28
       In her reply brief, defendant relies on People v. Samaniego (2009) 172
Cal.App.4th 1148, 1164-1165, for the proposition that when the aider and abettor may
have had a less culpable mental state than the perpetrator, it is error to instruct the jury
that an aider and abettor is ―equally guilty.‖ Defendant‘s jury was similarly instructed.
However, as defendant concedes, the Samaniego court deemed the instructional error
harmless where a special circumstance alleging intent to kill was found true. (Id. at pp.
1165-1166.) Here, the jury returned such a true finding. Accordingly, Samaniego does
not aid defendant.
                                              57
              5. Merger of Mayhem and Homicide
       Defendant contends a conviction of mayhem felony murder in this case would
violate the ―merger doctrine‖ articulated in People v. Ireland (1969) 70 Cal.2d 522, a
second degree murder case, and extended to first degree felony murder in People v.
Wilson (1969) 1 Cal.3d 431, 441-442 (Wilson).29 In her reply brief, defendant notes that
this court recently overruled Wilson and held, prospectively, that the merger doctrine has
no application to first degree felony murder. (People v. Farley (2009) 46 Cal.4th 1053,
1121-1122.) Although Farley does not apply here, the Attorney General correctly notes
that our preexisting jurisprudence had limited Wilson to cases of burglary felony murder
where the defendant‘s only felonious purpose was to assault or kill the victim. (People v.
Prince (2007) 40 Cal.4th 1179, 1262; People v. Burton (1971) 6 Cal.3d 375, 387-388.)
       Defendant relies on People v. Smith (1984) 35 Cal.3d 798, 806, a second degree
murder case holding that felony child abuse, when it consists of a direct assault on a child
resulting in death, comes within the merger doctrine. Smith has no application here. We
have long restricted the merger doctrine in first degree murder cases to felony murder
based on burglary, ―due to the unusual nature of burglary.‖ (People v. Burton, supra, 6
Cal.3d at p. 388.) In any event, the crime of mayhem felony murder has an ―independent
felonious purpose‖ that distinguishes it from the felony child abuse discussed in Smith.
(Burton, at p. 387.) The defendant must intend to permanently disfigure the victim,
which goes well beyond the merely assaultive purpose the Smith court considered
incompatible with the felony-murder rule. (Smith, at pp. 805-806; People v. Sears, supra,
62 Cal.2d at pp. 744-745.)
       The primary policy reason for the felony-murder doctrine was fully operative in
the circumstances of this case. ―The purpose of the felony-murder rule is to deter those
who commit the enumerated felonies from killing by holding them strictly responsible for

29
       Defendant claims that allowing the jury to consider the felony-murder theory
violated her rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
                                            58
any killing committed by a cofelon, whether intentional, negligent, or accidental, during
the perpetration or attempted perpetration of the felony.‖ (People v. Cavitt (2004) 33
Cal.4th 187, 197.) Although defendant contends ―the felony-murder rule cannot be much
of a deterrent to a person who has decided to assault a child with intent to maim,‖ the
medical testimony here was that Genny could have survived had she been given prompt
medical care, though the scalding would have scarred her for life. This mayhem need not
have resulted in a murder. Thus, the merger doctrine has no logical application in this
case.
               6. Cumulative Guilt Phase Error
        Defendant argues that this was a close case, and that the errors during the guilt
phase, even if not prejudicial in themselves, justify reversal when considered together.
Neither proposition is supportable. The case presented at the guilt phase was quite
strong, supported by graphic and telling physical evidence, both in the condition of
Genny‘s body and the conditions found in defendant‘s apartment. Defendant‘s own
statements were powerfully incriminating. The attempt by the defense to explain away
those statements and minimize defendant‘s culpability, by presenting her as a battered
woman controlled by her husband, was weak. (See pt. II.A.1.b., ante.)
        Any errors during the guilt phase were relatively insignificant. Assuming it was
improper to allow the prosecutor to inform the jury that Ivan had been deemed a battered
spouse by one expert, the effect on the determination of defendant‘s guilt was negligible.
As we have noted, battered woman syndrome was not a defense to the charged crimes,
and other evidence cast serious doubt on defendant‘s status as a battered woman. (Pt.
II.A.1.b., ante.) The Verdin error discussed in part II.A.1.c., ante, was merely a technical
one, given the alternate source of authority in Evidence Code section 730 for ordering
defendant to submit to examination by mental health experts. The error in permitting Dr.
Mills to opine that the death penalty was an incentive to malinger had minimal impact, as


                                              59
also discussed in part II.A.1.c., ante. We are satisfied beyond a reasonable doubt that
these irregularities, considered together, did not affect the outcome of the guilt phase.
       B. Penalty Phase
              1. Rebuttal Evidence and Cross-Examination of Mary Rojas
       The defense called Mary Rojas, defendant‘s sister and Genny‘s mother, as a
penalty phase witness. Rojas testified about the abuse she and defendant suffered as
children. She testified that she had seven children, including ―Genny, the one that died,‖
and another daughter whom she had also named Genny. Rojas said her children were
taken away from her twice, once because her husband Pete had molested the oldest
daughter, and again because of Rojas‘s drug problems. Rojas was in a rehabilitation
program when she learned that Genny had died. She was currently living with five of her
children, and did not allow Pete to live with her.
       Defense counsel asked Rojas about Genny‘s funeral and burial. Rojas said her
mother did not help with the expenses. Rojas, her church, and Pete had contributed
money to cover the costs. Genny was buried in a family plot with Rojas‘s aunt. Rojas
was still making monthly payments, and hoped to get a headstone when the plot was paid
for. Rojas loved and missed Genny and her death had been very hard on the family.
However, defendant‘s life also meant a lot to Rojas. If defendant were given the death
penalty ―it‘s going to hurt my kids again.‖
       Defendant takes issue with the prosecutor‘s cross-examination of Rojas. She
objects to questions regarding Rojas‘s drug abuse and neglect of her children, exploring
where the money for Genny‘s burial came from, asking why Rojas had chosen to have
another child and name her Genny even before ―the old Genny‖ had a headstone, and
establishing that Pete was the father of the newest baby and had been at the house when
Rojas was interviewed by an investigator for the prosecution. Defendant also contends
the court erred by allowing the prosecutor to introduce photographs of Genny‘s burial
plot. She claims the prosecutor improperly attacked Rojas‘s character, which was not at
                                              60
issue, and vilified defendant‘s entire family in an attempt to make the jury feel
comfortable voting for the death penalty. 30
       Defendant‘s indignation is unwarranted. As the Attorney General points out,
defendant did not object at trial to many of the questions about which she now complains.
To that extent, she has forfeited her claims of error. (People v. Gray (2005) 37 Cal.4th
168, 215.) Furthermore, there was no error. ―Cross-examination . . . ‗may be directed to
the eliciting of any matter which may tend to overcome or qualify the effect of the
testimony given . . . on direct examination.‘ [Citation.]‖ (People v. McClellan (1969) 71
Cal.2d 793, 811; accord, People v. Farley, supra, 46 Cal.4th at p. 1109; see also People
v. Lancaster, supra, 41 Cal.4th at p. 102 [― ‗It is settled that the trial court is given wide
discretion in controlling the scope of relevant cross-examination.‘ ‖].)
       Here, the prosecutor‘s questions were well within the scope of Rojas‘s direct
testimony, which was aimed at establishing that she had overcome the problems that led
her to lose custody of Genny, that she cared about Genny and had done what she could to
ensure a proper burial, and that despite her feelings for Genny she wanted defendant‘s
life to be spared. Questions about how Rojas‘s drug problems had affected her as a
mother, and positing that no one in the family had wanted Genny, were responsive to
considerations raised by the defense and supported by the evidence that Genny was
shuttled among Gonzales family households. It was defense counsel who established that
Rojas had another daughter named Genny, and that she did not allow Pete to live with
her. It was proper for the prosecutor to meet this testimony with evidence that Pete was
in fact the father of the second Genny, and had been seen at Rojas‘s house. The court
sustained an objection to the question about why Rojas did not wait until Genny had a
headstone before having another baby and naming her ―Genny.‖

30
      Defendant contends the prosecutor‘s tactics, both here and in the closing
arguments discussed in the next part, violated her rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to a fundamentally fair and reliable penalty verdict.
                                               61
        Defense counsel also introduced the subject of Genny‘s funeral expenses and her
burial in the family plot. The prosecutor was entitled to explore this subject further. It
was within the court‘s discretion to allow the introduction of photographs, so that the jury
could see where Genny was buried. Defendant argues that the photographs were
improperly admitted as victim impact evidence without the notice required by section
190.3. ―Evidence offered as rebuttal to defense evidence in mitigation, however, is not
subject to the notice requirement of section 190.3 and need not relate to any specific
aggravating factor. (In re Ross (1995) 10 Cal.4th 184, 206–207; § 190.3.)‖ (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 109.) Although the prosecutor claimed that
the photographs were proper victim impact evidence, the court did not admit them on that
ground, but correctly ruled they were rebuttal evidence.
              2. The Prosecutor’s Closing Argument
        Defendant contends the prosecutor improperly employed inflammatory rhetoric
during closing argument, calculated to appeal to the jury‘s emotions.31 Before turning to
the statements at issue, we note generally that ―[u]nlike the guilt determination, where
appeals to the jury‘s passions are inappropriate, in making the penalty decision, the jury
must make a moral assessment of all the relevant facts as they reflect on its decision.
[Citations.] Emotion must not reign over reason and, on objection, courts should guard
against prejudicially emotional argument. [Citation.] But emotion need not, indeed,
cannot, be entirely excluded from the jury‘s moral assessment.‘ [Citation.]‖ (People v.
Leonard (2007) 40 Cal.4th 1370, 1418; accord, People v. Jackson (2009) 45 Cal.4th 662,
691.)
        Defendant objects to the following comments on Mary Rojas‘s testimony: ―As we
sat here on Thursday and listened to the victim‘s mother come into this trial, it had to be


31
       Defendant claims violation of her rights to a fundamentally fair trial and a reliable
penalty determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
                                             62
the most offensive and repulsive testimony ever heard in a courtroom. It was shocking.
It was without humanity, and it was without compassion.
        ―Now, think about this, don‘t think about it in this case setting; just think about it
generically. We had a victim‘s mother, a victim‘s mother come in and testify for the
defense in a case where a daughter was horribly murdered — that, that is different again
than any reality that we will ever know outside of a courtroom like this, a victim‘s mother
testifying for the defense — we didn‘t just have any victim‘s mother, it was Genny‘s
mother, this little girl‘s, in this last photograph that we have of her, her mother.
        ―And I hate even saying those words, ‗mother.‘ Let‘s call her the biological
mother because that‘s all she is. She is genetically related to what was Genevieve Rojas,
not Genny Rojas, Genevieve Rojas, the old Genny.‖
        After asserting that Rojas‘s testimony reflected no compassion for Genny, the
prosecutor continued: ―Real parents who lose a child freak out. They lose their minds.
They wear their child‘s death on their sleeve as a badge. They never get over it. It alters
their lives forever. They lose their marriages. They lose their jobs. They end up with
alcohol problems. They commit suicide because, when you lose a child, you lose a part
of you. That‘s what being a parent is.
        ―And if you remember in voir dire, back in February, when I asked you about —
and it sounded like a stupid question — what‘s a parent? It was for Thursday. It was for
Mary Rojas, because she‘s not a parent; she‘s biologically related to Genny Rojas, and
that is it.‖
        A little later, the prosecutor added these comments: ―Of course, then she names
her daughter ‗Genny,‘ her new Genny. She gets back together with her molesting
husband, who molested one of the other daughters. And she testifies on direct that she
never sees Pete anymore, Pete Rojas, and that‘s her choice. Of course, on cross, she
finally admits, ‗Oh, yeah, he‘s the father of new Genny.‘ New Genny, people who lose
dogs and cats don‘t rename their new pets after their old pets. That shows you what a
                                               63
fungible item Genevieve Rojas was to Mary Rojas and this family, if that‘s what you
want to call them.‖
       Defendant argues that Rojas‘s shortcomings as a parent were irrelevant to the
penalty determination, and that the prosecutor sought to dehumanize the entire family in
the eyes of the jury. No such objection was raised below, and therefore defendant has
forfeited this claim of error. (People v. Huggins (2006) 38 Cal.4th 175, 251-252.)
Defendant contends the court and both parties agreed that no objections would be
required to preserve objections made by defense counsel in advance of the penalty phase
arguments. However, counsel did not refer to Rojas‘s testimony in his anticipatory
objections, and made it plain that he understood the necessity of objecting to any new
matter he deemed improper.32
       Even if counsel had objected, the court could properly have allowed this argument.
Certainly, Rojas‘s testimony opposing the death penalty for defendant was an important
part of the penalty defense. The prosecutor was entitled to seek to undermine her moral
standing and cast doubt on the weight to be given her testimony. What we said in People
v. Dennis (1998) 17 Cal.4th 468 applies here as well: ―In the challenged remarks, the
prosecutor did not substantially misstate the facts or go beyond the record. Ultimately,
the test for misconduct is whether the prosecutor has employed deceptive or
reprehensible methods to persuade either the court or the jury. (People v. Rowland
(1992) 4 Cal.4th 238, 274.) As we observed in Rowland, ‗Although harsh and
unbecoming, the challenged remarks constituted reasonable — if hyperbolic and
tendentious — inferences from the evidence. There is no reasonable likelihood that the
32
        Before trial, defense counsel filed a motion seeking to preclude the prosecutor
from commenting that Mary Rojas did not care about Genny. This motion, however,
concerned only the guilt phase, and was premised on the idea that without calling Mary
Rojas to the stand, the prosecutor had no ground for asserting that she did not care about
Genny. Thus, the motion did not operate to preserve any objections during the penalty
phase. It did, however, demonstrate that the defense was fully aware of the risks entailed
in putting Mary Rojas on the witness stand.
                                            64
jury understood the words otherwise.‘ (Id. at p. 277.) Here, as was true in Rowland, the
prosecutor‘s remarks did not amount to deceptive or reprehensible methods of
persuasion.‖ (People v. Dennis, supra, 17 Cal.4th at p. 522; see also People v. Huggins,
supra, 38 Cal.4th at p. 253.)
       Defense counsel did object during the next portion of the argument challenged by
defendant on appeal. We set out this passage in full:
       ―[The prosecutor]: Remember who this case is about. We‘re here because of this
little girl. She is special, and that‘s why it‘s a capital case. Genny didn‘t have a trial and
she had no one to speak for her, no one in society to speak for her; so I wrote a letter to
Genny about what society‘s outrage is regarding this case.
       ―[Defense counsel]: Your honor, I object to this, inflammatory rhetoric, ask for an
admonition.
       ―The Court: Overruled. Thus far.
       ―[The prosecutor]: Genevieve Rojas, born January 3rd, 1991, murdered July 21st,
1995. That means she was four and a half when she was murdered and tortured. Genny,
perhaps it was a rainy, balmy day when you first cried in pain. Perhaps it was a day like
this, a sunny day when happy children like to swing in swings, tumble down grassy banks
and laugh and experience the freshness of life when the darkness we call child abuse
crept into your life. Wherever it was, whenever it was, Genny, we were not there. We
were too late to hear your cry for help.
       ―[Defense counsel]: Objection, your honor. It‘s inflammatory rhetoric, ask for an
admonition.
       ―The Court: Overruled.
       ―[The prosecutor]: You were too young to know that we would care, too young to
know that you could reach out and we would help you. We hear your cries of pain now
as the story of those horrible last weeks of your life begin to unfold. It is so painful to
picture the life as you saw it, to picture the life of a beautiful little girl being destroyed.
                                               65
We know now what they did to you. Before your death, we never imagined any human
being with a heart and a soul could do that to a human being.
       ―As if we were hearing a nightmare, we heard how you were handcuffed behind
your back and until your tiny biceps bled. We heard how you were hung from a hook at
night in a closet, alone and afraid. We felt your claustrophobic conditions when the
defendant put you into a box, a closet, and a tub to scare you, that you were so frightened
that you had diarrhea, which brought about more abuse and more torture. We know that
now, too.
       ―[Defense counsel]: Objection, your honor. Misstates the evidence, ask for an
admonition.
       ―[The prosecutor]: It‘s what the defendant said.
       ―The Court: Overruled, overruled. Just let me add a comment, ladies and
gentlemen, excuse the interruption of both counsel. It‘s impossible in a case like this for
there not to be substantial emotions on both sides. No matter whose version of the
events, no matter whose take on the events you hear, it will be loaded with emotion; so
you will hear and feel emotion today. I only remind you that that emotion needs to be
channeled through the factors in aggravation, mitigation that I‘ve instructed you about.
Excuse me. Go ahead.
       ―[The prosecutor]: We see the shattered remnants of your smiling face, scarred
with burns from a blow dryer as the defendant inflicted unimaginable amounts of pain on
what was once your cute little chubby cheeks. We see the bruises and wounds from
people who embraced the pain of hitting a four-year-old in the face. We see your head,
no longer with the wavy locks of a four-year-old child, but the grotesque red masses of a
horrible burn. We try to conceptualize, rationalize and make sense of your maiming, yet
we can never know what it feels like to have the skin burned off your naked, bruised
body. We will never know the horror you went through as your skin weeped and your
life slowly and methodically was taken away from you.
                                            66
       ―How did it feel to stare at your abusers as your life ended? Did you think of
love? Did you think of your choice, your choice to live, your choice to die? Genny, we
do not understand. All of us want to hold you. All of us want to stop them from
attacking you, but we can‘t. It is too late to stop them from hurting you. And for that, we
are truly sorry. You must have been frightened. You must have been cold. You must
have been lonely. You must have been tired and hungry; but worst of all, you must have
felt abandoned by all of us.
       ―To know the agony, the humiliation and the intimidation and other abuse you
suffered before you gave into death makes us angry. To think that death would be a
merciful end to your pain only illuminates the torture and abuse that you suffered. That,
too, angers us, anger that society sleeps while other young children like yourself suffer.
       ―[Defense counsel]: Objection, your honor. It‘s irrelevant, ask for an admonition.
       ―The Court: Overruled.
       ―[The prosecutor]: That we did not hear you nor see your sadness in your eyes,
your fear and your anxiety brings us shame. You had no spokesperson for life. And for
that, we are truly sorry. For your whole life, not one person ever cared for you, cared for
you as a parent and cared for you as a human being. You will never be able to go to a
ball game, to play soccer, to play bobby sox softball or even go to a school play. When
you needed it most, no one would hold you and love you, love you and tell you that
everything would be all right.
       ―Genny, you will not be forgotten. We promise that you will not die in vain. We
promise that you will always be in our hearts, in our souls. We choose, we collectively
choose to adopt you and to care for you.
       ―[Defense counsel]: Objection, your honor. Inflammatory rhetoric, statement of
personal opinion, ask for an admonition.
       ―The Court: Overruled.
       ―[The prosecutor]: You —
                                             67
       ―The Court: Excuse me. With regard to the statement of personal opinion, the
personal opinion of none of the attorneys in this case is relevant to you, ladies and
gentlemen. Your personal opinions are relevant, and I remind you of that. Go ahead.
       ―[The prosecutor]: We choose as a group to adopt you and to take care of you.
You are a member of our family, those of us who have lived with you here in Department
32. We refuse to reject you as your mother and father did for a life of drugs and
molestation. We refuse to ignore you as your grandmother and other relatives did to you.
You are us and we are a part of you. We will hold your torturers accountable, no matter
what pain it puts us through, for we, Genny, will put you first and foremost in our souls.
We will not allow the defendant to portray herself as a victim. We have seen your
journey of torture and abuse —
       ―[Defense counsel]: Your honor, I object, also inflammatory rhetoric, statement of
personal opinion, improper, ask for an admonition.
       ―The Court: Overruled. Go ahead, counsel.
       ―[The prosecutor]: The defendant is not a victim. No one who does this to a child
can ever be called a victim. No one who embraces inflicting pain upon your body should
ever be allowed to portray herself as a victim. We know now what a victim is. A victim
is someone who has a blow dryer placed against her face, who is hung in a closet and
who is stuffed in a box. We, Genny, make a commitment, a commitment to stop the
defendant and hold her accountable. Our strength will not wax nor wane despite the
assaults on our logic and common sense. We see you as an example of courage and
commitment. We will not let you go nor will we ever let you down.‖
       Defendant contends this ―letter to Genny‖ was an improper emotional appeal for
the jury to commit themselves to vote for execution, to reject defendant‘s family and
substitute themselves as Genny‘s family, and to personally exact vengeance for what
happened to Genny. Defendant argues that the court‘s admonitions were ineffective.
First, the court told the jurors to channel their emotions through the factors in aggravation
                                             68
and mitigation, in effect telling them to allow the emotions evoked by the prosecutor to
be a factor in the weighing process. Then, the court advised that the attorneys‘ opinions
were irrelevant but the jurors‘ personal opinions were relevant, opening the door for the
jury to accept the prosecutor‘s impassioned assertions, which were couched in the first
person plural, and act on the basis of passion and prejudice during deliberations.
       The Attorney General responds that the ―letter to Genny‖ was proper as an
expression of community outrage (see People v. Zambrano (2007) 41 Cal.4th 1082,
1178-1179), an invitation to empathize with the suffering of the victim (see People v.
Dykes (2009) 46 Cal.4th 731, 794), and a description of Genny‘s vulnerability (see
People v. Guerra (2006) 37 Cal.4th 1067, 1156). Noting that during the penalty phase,
―considerable leeway is given for emotional appeal so long as it relates to relevant
considerations‖ (People v. Bittaker (1989) 48 Cal.3d 1046, 1110, fn. 35; see also People
v. Riggs (2008) 44 Cal.4th 248, 323), the Attorney General argues that the trial court
properly reminded the jurors to channel emotion through the statutory aggravating and
mitigating factors, and to rely on their own opinions rather than those of counsel.
       No bright line separates unduly inflammatory prosecutorial argument from
legitimate advocacy at the penalty phase of a capital trial, where the jury must make a
moral assessment and the harm inflicted on the victims is a relevant consideration. We
have noted that allowing the jury to consider victim impact evidence ― ‗does not mean
that there are no limits on emotional evidence and argument. . . .‘ ‖ (People v. Robinson
(2005) 37 Cal.4th 592, 651, quoting People v. Edwards (1991) 54 Cal.3d 787, 836.)
― ‗ ―[T]he jury must face its obligation soberly and rationally, and should not be given the
impression that emotion may reign over reason.‖ ‘ ‖ ― [A]lthough a court should
‗ ―allow evidence and argument on emotional though relevant subjects that could provide
legitimate reasons to sway the jury to show mercy or to impose the ultimate sanction,‖ ‘
still, ‗ ―irrelevant information or inflammatory rhetoric that diverts the jury‘s attention
from its proper role or invites an irrational, purely subjective response should be
                                              69
curtailed.‖ ‘ (Edwards, supra, 54 Cal.3d 787, 836, quoting People v. Haskett (1982) 30
Cal.3d 841, 864.)‖ (Robinson, supra, 37 Cal.4th at pp. 651-652; see also People v.
Prince, supra, 40 Cal.4th at pp. 1286-1287; People v. Benavides, supra, 35 Cal.4th at p.
108.)
        Here, the court should have curtailed the prosecutor‘s extended and melodramatic
oration couched as a letter to the victim, by sustaining defense counsel‘s objections and
admonishing the jury. Portions of the argument were permissible as expressions of
outrage, appeals to empathy, and descriptions of both Genny‘s vulnerability and
defendant‘s conduct. However, the passages urging jurors to personally feel shame for
society‘s failure to protect Genny and other abused children, the assertion that ―we
collectively choose to adopt you and to care for you,‖ and similar invitations to take the
role of a protective family for this victim were plainly improper. The prosecutor asked
the jurors, in emotional terms, to go far beyond their role as the arbiters of punishment
prescribed by law. He invited them to consider the failure of society at large to protect
abused children, and then to join him in assuming the role of a nuclear family for Genny.
These purely emotional appeals invited a subjective response from the jurors and tended
to divert them from their proper role of rational deliberation on the statutory factors
governing the penalty determination. It was the trial court‘s responsibility to intervene
and redirect the jury, to remind it that its duty was not to replace Genny‘s family or to
answer for the failures of society at large to prevent child abuse, but to reach a penalty
decision based on the facts of this case.
        The court‘s admonitions, while partially effective, were insufficient. Reminding
the jury to channel its emotions through the aggravating and mitigating factors was
appropriate insofar as the prosecutor‘s emotional appeals related to those factors, or to the
jury‘s proper role as the conscience of the community operating within the criminal
justice system. (See People v. Zambrano, supra, 41 Cal.4th at pp. 1178-1179.) This was
not, however, an adequate check on the prosecutor‘s untethered summons to the jury to
                                             70
―adopt‖ the victim as the benevolent family she never had, and essentially to act as her
protector and advocate during deliberations. Similarly, while it was proper to remind the
jury that the opinions of counsel were irrelevant, the court‘s advice that the jurors‘ own
opinions were relevant did not sufficiently stem the effects of the argument soliciting
subjective, irrational emotions from the jurors.
       We turn to the question of prejudice. In evaluating the effects of improper
argument at the penalty phase, ― ‗we apply the reasonable possibility standard of
prejudice first articulated in People v. Brown [(1988)] 46 Cal.3d [432,] 448, . . . which
. . . is the ―same in substance and effect‖ as the beyond-a-reasonable-doubt test for
prejudice articulated in Chapman v. California [, supra,] 386 U.S. 18.‘ (People v.
Wallace [, supra,] 44 Cal.4th 1032, 1092.)‖ (People v. Dykes, supra, 46 Cal.4th at p.
786.)33 Thus, we must decide whether there is a reasonable possibility that the jury
would have returned a different penalty verdict absent the inflammatory and irrelevant
aspects of the prosecutor‘s ―letter to Genny.‖ We conclude there is not, for the following
reasons.
       First, the prosecutor‘s improper remarks were not central to the case he presented
in closing argument. They were rhetorical flourishes following the prosecutor‘s initial
comments on the defense penalty phase witnesses. The prosecutor then proceeded with
a more traditional series of arguments focused on the circumstances of the offense and

33
       The Attorney General notes that for purposes of federal constitutional error, ―it ‗is
not enough that the prosecutor‘s remarks were undesirable or even universally
condemned.‘ [Citation.] The relevant question is whether the prosecutor‘s comments ‗so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.‘ [Citation.]‖ (Darden v. Wainwright (1986) 477 U.S. 168, 181.) While the
Darden court did not frame its holding in terms of prejudice (id. at p. 183, fn. 15), our
review under the reasonable possibility standard is equivalent to a determination whether
the prosecutor‘s inflammatory rhetoric undermined the fundamental fairness of the
penalty phase. If there is no reasonable possibility the jury‘s verdict was affected, the
proceeding could not be deemed a denial of due process. Nor would it be an unreliable
verdict for purposes of defendant‘s Eighth Amendment claim.
                                             71
defendant‘s character. He methodically went through the statutory aggravating and
mitigating factors, and did not return to the objectionable themes of the ―letter to Genny.‖
       Second, the circumstances of this murder were almost unimaginably horrible.
They involved a prolonged and varied course of neglect, starvation, torture, and maiming
ultimately culminating in the death by scalding of a four-year-old child. No medical
attention was sought for Genny, and the evidence supported a conclusion that defendant
and Ivan continued to abuse her even as she lay dying. All the events took place in
defendant‘s home, and her attempt to escape blame by casting herself as an abused
spouse could only have been viewed by the jury as desperately weak.34 The attitudes
expressed by defendant in her videotaped interviews placed her in a very unsympathetic
light. The emotions inevitably aroused by the guilt phase evidence were substantially
more powerful than those the prosecutor sought to stir in the improper portions of his
argument, and were a legitimate factor supporting capital punishment.
       Third, the defense at the penalty phase was hobbled by the fact that the adult
family members asking the jury to spare defendant‘s life were themselves complicit in
Genny‘s endangerment. The Negrettes and Mary Rojas had returned Genny to her
grandmother, even though they knew she was an abusive caretaker. This was an unusual
case in which witnesses who would ordinarily be giving victim impact testimony for the
prosecution were not only testifying for the defense, but also had failed to protect the
victim. Furthermore, while defendant relied on evidence of her own abuse at the hands


34
       At the penalty phase, the defense put little weight on the battered woman theory.
It argued that defendant was a minor participant compared to Ivan, and that her
culpability was mitigated by intoxication, posttraumatic stress disorder, and her own
history of abuse as a child. Counsel urged the jury to consider the impact of a death
verdict on defendant‘s family, especially her children, to avoid vindictive emotion during
deliberations, and to consider that life in prison was an appropriately harsh punishment.
       Nevertheless, the jury would naturally and properly have considered the evidence
presented at the guilt phase, including defendant‘s attempt to cast herself as an abused
victim rather than an abuser.
                                             72
of her parents and husband, the abuse she described paled in comparison to the torture
and maiming she and Ivan inflicted on Genny. When a murder is the result of extreme
forms of child abuse, mitigating evidence of the kind presented here loses much of its
persuasive impact.
       For all these reasons, we hold that there is no ―reasonable (i.e., realistic)
possibility‖ that the jury was diverted from returning a life sentence by the improper
arguments in the prosecutor‘s ―letter to Genny.‖ (People v. Brown, supra, 46 Cal.3d at p.
448; see People v. Cowan (2010) 50 Cal.4th 401, 491.)
       Defendant raises a final claim of improper argument. The prosecutor, in the
course of asserting that defendant‘s participation in the murder was not minor (§ 190.3,
factor (j)), commented: ―One other thing that proves she did it, and that‘s her child abuse
history. She learned, she was schooled in terror. She has a bachelor‘s degree in child
abuse. She learned to discipline and she learned to punish. She is Tillie [defendant‘s
mother] — actually, she‘s worse than Tillie. She‘s graduated. She has a Ph.D. in child
abuse.‖ Defendant incorporates by reference her guilt phase arguments that the
prosecutor made improper use of the child abuse evidence (pt. II.A.2., ante) and contends
it was unconscionable to again use that evidence to persuade the jury that death was the
proper penalty.35 Defendant did not object at trial, and therefore she has forfeited this
claim of error. (People v. Huggins, supra, 38 Cal.4th at p. 251-252.) In any event, we
have held that the prosecutor was properly allowed during the guilt phase to respond to
the evidence of abuse during defendant‘s childhood with expert testimony that such a
history can lead the victim to become an abuser. (Pt. II.A.2., ante.) His passing
reference to this point in closing at the penalty phase overstated the impact of that



35
      Defense counsel made this objection in advance of the penalty phase argument.
The court ruled that both sides were free to argue the inferences that might rationally be
drawn from the child abuse evidence.
                                              73
testimony, but was not so flagrant as to amount to misconduct or to prejudice the jury‘s
deliberations.
                 3. Restriction of Defense Counsel’s Closing Argument
       In a discussion before the penalty phase began, defense counsel indicated that he
intended to talk about other capital cases only if the prosecutor argued that ―if there ever
was a case that cries out for the death penalty, this is it.‖ The prosecutor said he did
indeed intend to make that argument. The court was skeptical about ―counsel litigating
other cases in their argument.‖ Further discussion was deferred. When the parties
returned to the subject, defense counsel explained that he meant to respond to the
prosecutor‘s argument by commenting on two or three other cases, such as the murder of
Martin Luther King, Jr., the murders of children by Wayne Williams in Atlanta, and the
Terry Nichols prosecution for the Oklahoma City bombing. He wanted to tell the jury
about ―cases that people are generally familiar with through the media that are bad cases
[where] there wasn‘t a death penalty for whatever reason . . . just to show that the death
penalty . . . isn‘t always required for every single bad case and is not mandatory.‖
       The prosecutor responded that there were many reasons why the death penalty was
not imposed in such cases, which he would explore if defense counsel mentioned them.
The court was not willing to allow references to other specific cases, noting that it would
take the focus away from the individualized sentencing determination that was the jury‘s
task, and divert its attention toward the various reasons why the death penalty was not
administered in other cases. However, the court told defense counsel he was free to tell
the jurors that they were all aware of other horrible cases in which the death penalty was
not imposed, without mentioning specific instances. The court noted that the
prosecutor‘s argument was ―hyperbole,‖ and added ―you‘re absolutely entitled to meet
that on the same level that it‘s offered.‖




                                             74
       Defendant contends the court improperly restricted defense counsel‘s argument.36
We disagree. In the first place, as a matter of logic the prosecutor did not open the door
to an exploration of other murder prosecutions by claiming, as he did in closing
argument, that ―if any murder requires the death penalty, this is it. If this isn‘t an
appropriate case for capital punishment, then nothing is.‖ This is not a comparative
claim, but a categorical one. The consideration that other cases might seem equally
appropriate for capital punishment, yet not reach that result, is not responsive to the
assertion that this case justifies the death penalty if any case does. The prosecutor‘s
argument was not premised on the notion that the present case was worse than any other,
or that all similar cases required the death penalty. Instead, it stood on the ground that
defendant‘s case was so suitable for capital punishment that the only justification for not
imposing it would be an objection to capital punishment in all cases. This is an entirely
proper argument and does not invite comparisons with other specific notorious cases.
       Furthermore, the court was rightly concerned with the distraction involved in the
argument proposed by defense counsel. To meet the point counsel wanted to make, the
prosecutor would have been entitled to explain why the death penalty was not imposed in
the other cases. We have repeatedly upheld trial court restrictions on arguments
comparing a defendant‘s case to other well-known murders. (People v. Farley, supra, 46
Cal.4th at p. 1130-1131, citing cases; see also People v. Ervine (2009) 47 Cal.4th 745,
800-801.) ―A criminal defendant has a well-established constitutional right to have
counsel present closing argument to the trier of fact. [Citations.] This right is not
unbounded, however; the trial court retains discretion to impose reasonable time limits
and to ensure that argument does not stray unduly from the mark. [Citation.]‖ (People v.
Marshall (1996) 13 Cal.4th 799, 854-855.) The court did not abuse its discretion here.

36
      Although she recognizes that such a claim of error is grounded in the Sixth
Amendment right to counsel, defendant also asserts error under the Fifth, Eighth, and
Fourteenth Amendments.
                                              75
              4. Alleged Flaws in Capital Trial and Sentencing Procedures
       Defendant raises a series of familiar objections to California capital trial and
sentencing procedures. We reject them, as we have before. Thus:
       Defendant asserts that the trial court erred by refusing her request for sequestered
voir dire pursuant to Hovey v. Superior Court (1980) 28 Cal.3d 1. She contends the
Hovey procedures are constitutionally required. We have rejected that claim, and do so
again here. (E.g., People v. Lewis (2008) 43 Cal.4th 415, 494; People v. Brasure (2008)
42 Cal.4th 1037, 1050-1051; People v. Alfaro (2007) 41 Cal.4th 1277, 1315.)
       The federal constitution requires neither unanimity nor proof beyond a reasonable
doubt for the jury to make findings on aggravating and mitigating factors. The
reasonable doubt standard is also inapplicable to the jury‘s determination that death is the
appropriate penalty. Nothing in Cunningham v. California (2007) 549 U.S. 270,
Apprendi v. New Jersey (2000) 530 U.S. 466, or Ring v. Arizona (2002) 536 U.S. 584,
affects our conclusions in these regards. (E.g., People v. Martinez (2009) 47 Cal.4th 399,
455; People v. Farley, supra, 46 Cal.4th at pp. 1133-1134; People v. Loker (2008) 44
Cal.4th 691, 755.)
       The absence of written findings reflecting the jury‘s consideration of the
sentencing factors does not violate a defendant‘s constitutional rights. (E.g., People v.
Martinez, supra, 47 Cal.4th at p. 455; People v. Farley, supra, 46 Cal.4th at p. 1134;
People v. Loker, supra, 44 Cal.4th at p. 755.)
       The statutory special circumstances that qualify a defendant for the death penalty,
including the felony-murder special circumstance, are not unconstitutionally overbroad.
(E.g., People v. Farley, supra, 46 Cal.4th at p. 1133; People v. Loker, supra, 44 Cal.4th at
p. 755; People v. Harris (2005) 37 Cal.4th 310, 365.)




                                             76
       Intercase proportionality review is not constitutionally required. (E.g., People v.
Martinez, supra, 47 Cal.4th at p. 455; People v. Farley, supra, 46 Cal.4th at p. 1134;
People v. Loker, supra, 44 Cal.4th at p. 755.)37
       The use in the sentencing factors of such adjectives as ―extreme‖ (§ 190.3, factors
(d), (g)) and ―substantial‖ (§ 190.3, factor (g)) does not act as an unconstitutional barrier
to the consideration of mitigating evidence. (E.g., People v. Martinez, supra, 47 Cal.4th
at p. 455; People v. Farley, supra, 46 Cal.4th at p. 1134; People v. Parson (2008) 44
Cal.4th 332, 369-370.)
       Defendant claims broadly, and without supporting argument, that the factors in
aggravation provided in section 190.3 have been applied so broadly as to result in
arbitrary and contradictory results. We have consistently rejected this argument in
connection with the broadest factor, the ―circumstances of the crime.‖ (§ 190.3, factor
(a); see, e.g., People v. Brady (2010) 50 Cal.4th 547, 590; People v. Farley, supra, 46
Cal.4th at p. 1133; People v. Loker, supra, 44 Cal.4th at p. 755.) Defendant offers no
reason for altering our conclusion with respect to the other more specific aggravating
factors.
       Prosecutorial discretion in deciding whether to seek the death penalty does not
result in a violation of equal protection, due process, or reliability in capital sentencing.
(E.g., People v. Brady, supra, 50 Cal.4th at p. 589; People v. Harris, supra, 37 Cal.4th at
p. 366; People v. Brown (2004) 33 Cal.4th 382, 403.)
       The delays entailed in the appellate process for capital cases do not amount to
cruel and unusual punishment. (E.g., People v. Brady, supra, 50 Cal.4th at p. 589;
37
        Defendant also asserts that California unconstitutionally fails to require intracase
proportionality review. However, as the Attorney General points out, this court routinely
performs such review. (E.g., People v. Kelly (2007) 42 Cal.4th 763, 800.) For the first
time in her reply brief, defendant claims error in the failure to permit her jury to perform
intracase proportionality review by comparing her culpability with that of her husband
Ivan. Even if this claim were timely raised, defendant fails to explicate it in sufficient
detail to permit meaningful review.
                                              77
People v. Bennett, supra, 45 Cal.4th at pp. 629-630; People v. Jones (2003) 29 Cal.4th
1229, 1267.)
       Defendant claims that this court has been so influenced by political pressure in its
review of capital cases that various constitutional rights associated with meaningful
appellate review have been abrogated. We disagree, as we have in past cases. (E.g.,
People v. Prince, supra, 40 Cal.4th at p. 1299; People v. Avila (2006) 38 Cal.4th 491,
615; People v. Kipp (2001) 26 Cal.4th 1100, 1140-41.)
       The failure to provide for a ―presumption of life‖ does not violate the federal
constitution. (E.g., People v. Lomax (2010) 49 Cal.4th 530, 594-595; People v. Gamache
(2010) 48 Cal.4th 347, 407; People v. Parson, supra, 44 Cal.4th at p. 371.) Nor does
California‘s death penalty law violate international law, such as the International
Covenant on Civil and Political Rights, or the American Declaration of the Rights and
Duties of Man. (E.g., People v. Hamilton (2009) 45 Cal.4th 863, 961; People v. Alfaro,
supra, 41 Cal.4th at p. 1332; People v. Avila, supra, 38 Cal.4th at p. 615.)
               5. Cumulative Prejudice
       Defendant argues that errors deemed harmless at the guilt phase may nevertheless
have been determinative at the penalty trial. We have reviewed the cumulative impact of
the guilt phase errors above, and entertained no reasonable doubt that they had any
significant impact on defendant‘s conviction. (Pt. II.A.6., ante.) We also conclude there
is no reasonable possibility that they affected the penalty determination. (See People v.
Prince, supra, 40 Cal.4th at p. 1299.)
       Defendant further argues that her penalty phase presented an unusually close case,
so that any error during that phase must be deemed prejudicial. We have concluded that
the court‘s error in failing to curtail unduly inflammatory passages in the prosecutor‘s
closing argument was harmless, ―under the most exacting standard of review.‖ (People v.
Prince, supra, 40 Cal.4th at p. 1299; see pt. II.B2., ante.) Defendant contends this case
involved only ―a single period of aberrant behavior,‖ and that the evidence in mitigation
                                             78
was compelling. While it is true there was only one victim here, the evidence
demonstrated that defendant was at least complicit in the abuse and torture Genny
suffered for a period of weeks if not months. This prolonged course of conduct
culminated in a particularly horrible death by scalding that defendant did nothing to avert,
despite ample opportunity to seek help. When these circumstances are balanced against
the evidence in mitigation, we cannot say this was an especially close case at the penalty
phase. We will not disturb the jury‘s verdict.
                                   III. DISPOSITION
       The judgment is affirmed.


                                                               CORRIGAN, J.




WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.




                                            79
         CONCURRING AND DISSENTING OPINION BY WISEMAN, J.


       I concur with the majority‘s conclusion that there was no reversible error in the
guilt phase portion of the trial. I also agree that portions of the prosecutor‘s letter to
Genny Rojas were ―plainly improper.‖ (Maj. opn., ante, at p. 70.) I disagree, however,
with the majority‘s holding that the reading of the letter was harmless error. To be
reversible error, there need only be a reasonable possibility that the jury would have
returned a verdict of life without possibility of parole if the prosecutor had not improperly
appealed to the jury‘s passions. Based on this record, I cannot say there is no reasonable
possibility. On the basis of this one issue, I would conclude the sentence of death must
be reversed.
       I fully recognize that many cases have held that a prosecutor‘s argument, although
emotional, does not cause the proceedings to cross over into the realm where emotion
reigns over reason. (E.g., People v. Leonard (2007) 40 Cal.4th 1370, 1418 [―‗Emotion
must not reign over reason and, on objection, courts should guard against prejudicially
emotional argument‘‖].) Neither the cases cited by the parties nor any case I have
located, however, contain anything similar to the prosecutor‘s letter to Genny.
       In numerous cases, this court has approved prosecutors‘ penalty phase arguments
that urged the jury to stand in the victims‘ shoes and consider the pain and fear felt by the
victims and the years of life of which the victims were deprived. (E.g., People v.
Slaughter (2002) 27 Cal.4th 1187, 1212; People v. Cole (2004) 33 Cal.4th 1158, 1233;
People v. Chatman (2006) 38 Cal.4th 344, 388.) In other cases, the court has approved

                                               1
penalty phase arguments urging the jury to consider the anguish felt by the victims‘
families. (E.g., People v. Jackson (2009) 45 Cal.4th 662, 692.) The court has also
approved penalty phase summations stating that all members of society are victims when
a person is murdered and describing the jurors as the conscience of an injured society.
(People v. Mendoza (2007) 42 Cal.4th 686, 706.)
       In none of those cases, however, did the prosecutors reach the emotional pitch the
prosecutor attained in his letter in this case. No previous case has approved an argument
in the form of an impassioned, imaginary letter to a child victim. The court has never
found proper an invitation to jurors to adopt the victim posthumously and become her
parents. Never before has the court found proper or harmless an argument that
purports—using the first person plural—to speak for the jurors themselves, saying ―[y]ou
are a member of our family, those of us who have lived with you here in Department 32,‖
and ―we will hold your torturers accountable‖ by imposing death. (Italics added.) In this
case, the prosecutor‘s argument not only undertook to replace the jurors‘ reason with
their emotions as adoptive ―parents,‖ it also undertook to tell them in their own voices
what their decision was. Because of the tactics of (1) telling the jurors that they not only
should sympathize with the victim but that they were the victim’s parents, and
(2) identifying the jurors with the prosecutor (―we‖) and telling them we will impose
death, the prosecutor‘s letter is something new.
       Case law makes it clear that emotion is relevant to a jury‘s assessment of the
suitability of the death penalty. (People v. Leonard, supra, 40 Cal.4th at p. 1418
[―‗emotion need not, indeed, cannot, be entirely excluded from the jury‘s moral
assessment‘‖].) We are confronted here with the rare situation in which the prosecutor‘s
penalty phase argument goes too far. It is essential that the point at which passion
becomes excessive be real and enforceable, and enforced, not merely theoretical.
       In my opinion, the prosecutor‘s letter in this case crosses the line. This court‘s
discussion of a Texas case in People v. Robinson (2005) 37 Cal.4th 592 is instructive.

                                              2
The Robinson court described Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d 330 as
an ―extreme example‖ of a ―due process infirmity.‖ (Robinson, supra, at p. 652.) In
Salazar, the prosecution introduced a 17-minute video montage of the victim‘s life,
which included 140 photographs and was set to emotional music, including ―My Heart
Will Go On‖ by Celine Dion from the soundtrack of the film Titanic (20th Century Fox
1997). The Texas Court of Criminal Appeals reversed a lower court‘s ruling that this
presentation was admissible and remanded for an assessment of prejudice. The Texas
court stated that ―‗the punishment phase of a criminal trial is not a memorial service for
the victim. What may be entirely appropriate eulogies to celebrate the life and
accomplishments of a unique individual are not necessarily admissible in a criminal
trial .…‘‖ (Robinson, supra, at p. 652.) After remand, the error was found prejudicial.
(Id. at p. 652, fn. 32.) The prosecutor‘s letter in this case was argument, not evidence, but
its purpose and effect were similar.
       The situation in People v. Mendoza, supra, 42 Cal.4th at page 706, illustrates how
the letter was excessively emotional. In Mendoza, the prosecutor stated in the penalty
phase summation that people in society as a whole were victims of the murder. This
court held that this was a proper argument about the harm to society done by the
defendant. The prosecutor went on, however, to state that the jurors in particular were
victims because the defendant burdened them with the difficult duty of deciding whether
to impose death. This court held that it was improper to single out the jurors as especially
victimized, but concluded that the trial court identified the error and gave an adequate
curative instruction.
       In this case, the prosecutor did not tell the jurors they were victims, but told them
they were something perhaps even more emotionally powerful—the victim’s parents.
The prosecutor did not merely ask the jurors to stand in the victim‘s shoes or the victim‘s
family‘s shoes. He informed the jurors that ―we‖—himself and the jury—were the
victim‘s parents by adoption. This is not a proper role for a juror to assume even in a

                                              3
death penalty case where appeals to emotion are appropriate. The reason why becomes
obvious by simply looking to the prosecutor‘s own words used when describing the role
of a parent. He said, ―Real parents who lose a child freak out. They lose their minds.
They wear their child‘s death on their sleeve as a badge. They never get over it. It alters
their lives forever. They lose their marriages. They lose their jobs. They end up with
alcohol problems. They commit suicide because, when you lose a child, you lose a part
of you. That‘s what being a parent is.‖ Despite defense counsel‘s objections to the
reading of the letter, the court gave no curative instruction except the general statement
that the attorneys‘ personal opinions were not relevant, which, as the majority holds, was
insufficient.
       The United States Supreme Court‘s comment in Gardner v. Florida (1977) 430
U.S. 349, 358, is relevant to our situation: ―It is of vital importance to the defendant and
to the community that any decision to impose the death sentence be, and appear to be,
based on reason rather than caprice or emotion.‖ (Italics added.) A death sentence lacks
the moral authority the community intends it to have if, because of a prosecutor‘s
overzealous evocation of the passion for retribution, the sentence appears not to have
issued from the jurors‘ reason. In this case, the prosecutor‘s argument created a danger
that the jury‘s death verdict was not reached through reason but instead as a result of an
overzealous desire to exact parental retribution.
       I am aware that this court has held that retribution is a proper purpose for
imposing the death penalty. (People v. Zambrano (2007) 41 Cal.4th 1082, 1178,
overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) This
does not mean, however, that there should be no limits on the amount or kinds of passion
for retribution the prosecution is permitted to evoke. The combination of retribution as
an acceptable purpose and emotion as an appropriate factor, without limits, has the
potential to overwhelm reason.



                                             4
       On the subject of prejudice, what I have already said shows part of the reason the
prosecutor‘s erroneous use of the letter was not harmless. As the majority states, an
exacting standard of harmless error review applies: There must be no reasonable
possibility that the jury would have rendered a different penalty verdict absent the error, a
standard equivalent to the beyond a reasonable doubt standard of Chapman v. California
(1967) 386 U.S. 18. (People v. Wallace (2008) 44 Cal.4th 1032, 1092.) In my view, the
extreme emotional nature of the letter makes it reasonably possible that the improper
argument tipped the balance. The majority takes the position that the letter was not
―central‖ to the prosecutor‘ summation (maj. opn., ante, at p. 71). I respectfully disagree
with this conclusion and, to the contrary, believe the letter likely was the most memorable
part of the prosecutor‘s summation. The prosecutor was an experienced attorney and
used the letter as a very powerful strategy in a highly emotional case. It must have been
obvious to the prosecutor that his use of the letter to Genny was having a major impact on
the jury in light of the repetitive and impassioned nature of the defense objections to it.
       The nature of Gonzales‘s penalty phase defense, in my view, reinforces this
conclusion. Gonzales wanted the jury to believe that Ivan was the actual killer and that
she was a minor participant. She also wanted the jury to believe that her responsibility
for failing to try to stop Ivan or get help for Genny was mitigated by battered woman
syndrome, her own history of abuse as a child, posttraumatic stress disorder, and
intoxication. She wanted the jury to find that, because of these factors, even though her
conduct still constituted first degree murder, life without parole would be an adequate
punishment. Without the improper argument, it is reasonably possible that the jury could
have accepted her contentions and concluded that she should receive life without
possibility of parole.
       The majority states that the facts were so horrible that the improper influence of
the letter must have been of minor significance by comparison. (Maj. opn., ante, at
p. 72.) This may well be so with respect to Gonzales‘s guilt phase objectives, for the

                                              5
evidence that Gonzales was guilty on one or another of the theories of first degree murder
presented by the prosecution was very powerful. At the penalty phase, however, matters
were different. The jury could have concluded that, despite Gonzales‘s guilt, it was
likely that Ivan was the actual killer or that Gonzales‘s culpability was lessened by the
factors she presented, or both. It could have found that, under these circumstances, life
without parole would be enough punishment. There is a reasonable possibility that this
would have happened had the prosecutor not read the letter. This may not be reasonably
probable because, for instance, there was evidence that Gonzales was dominant over
Ivan. It is still reasonably possible, which is the standard we must apply.
       The majority also states that a life verdict was unlikely because ―the defense at the
penalty phase was hobbled by the fact that the adult family members asking the jury to
spare defendant‘s life were themselves complicit in Genny‘s endangerment.‖ (Maj. opn.,
ante, at p. 72.) Without any doubt, the family members asking the jury to spare
Gonzales‘s life were not ideal witnesses. This does not show beyond a reasonable doubt,
however, that the jury would not have been persuaded to impose life without parole
absent the improper argument. Her penalty phase defense had other components.
       The majority states that Gonzales‘s mitigation evidence in general ―loses much of
its persuasive impact‖ because the murder resulted from terrible forms of child abuse.
(Maj. opn., ante, at p. 73.) The question, however, is not how persuasive we find the
mitigation evidence to be, but whether there is a reasonable possibility the jury would
have found it persuasive absent the improper appeal to passion. I do not believe we can
say with any confidence that there is not.
       For example, the majority concludes that the evidence that Gonzales was herself
abused as a child ―paled in comparison‖ with the crime of which she was convicted (maj.
opn., ante, at p. 73), so it too has little persuasive impact. It is reasonably possible,
however, that the jury would have found otherwise absent the prosecutor‘s improper
appeal to passion. A major theme on which the prosecution relied, of course, was the

                                               6
horror of child abuse. There is little doubt that the prosecution was keenly aware that this
theme could be turned against it in the penalty phase because Gonzales also was an
abused child. The prosecutor‘s recognition of the possible impact of this evidence is
apparent in his effort to undermine it by making the novel assertion that Gonzales‘s
history as an abused child somehow proved she was the actual killer. He said, ―‗[o]ne
other thing that proves she did it, and that‘s her child abuse history. She learned, she was
schooled in terror.… She has a Ph.D. in child abuse.‘‖ (Maj. opn., ante, at p. 73.)
       The prosecutor evidently did not believe that the abuse Gonzales suffered as a
child was comparatively insignificant, for he went to considerable rhetorical lengths in
trying to neutralize its effect on the jury. In fact, his strategy was emphatically not to
minimize the abuse she suffered—this must have seemed to him unlikely to persuade—
but to magnify it and turn it against her. Absent the improper appeal to passion, the jury
might have been moved to mercy by the evidence of Gonzales‘s childhood suffering
while at the same time rejecting the prosecution‘s unusual contention that this suffering
increased her culpability.
       In summary, I fear that holding that the prosecutor‘s improper argument was
harmless in this case establishes a new low bar for harmless error on the issue of
appealing to passion in penalty phase closing arguments. The law intends to make it
relatively difficult for the prosecution to show harmless error when the prosecutor
improperly appeals to emotion in the penalty phase of a capital trial. This is why the
legal standard of review requires a mere reasonable possibility of prejudice in order to
reverse a verdict of death. It is, in my opinion, essential for the court to ensure that the




                                               7
rule has some teeth and will be enforced. Otherwise, overly zealous prosecutors may be
incentivized to push the limits without serious fear of reversal. I believe the death
penalty verdict should be reversed.


                                                  ________________________________
                                                  Wiseman, J.




       Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6, of the California Constitution.


                                             8
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. S072316
Date Filed: June 2, 2011
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Michael D. Wellington

__________________________________________________________________________________

Counsel:

Mark E. Cutler, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Annie Featherman Fraser, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark E. Cutler
Post Office Box 172
Cool, CA 95614-0172
(530) 885-7718

Annie Featherman Fraser
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2427
