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The People v. Veronica Utilia Gonzales

June 2, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
VERONICA UTILIA GONZALES, DEFENDANT AND APPELLANT.



Super. Ct. No. SCD114421 San Diego County

The opinion of the court was delivered by: Corrigan, J.

Defendant Veronica Utilia Gonzales was convicted of murdering Genny Rojas.*fn1 The jury found as special circumstances that the murder was intentional and involved the infliction of torture,*fn2 and occurred while defendant was engaged in the commission and attempted commission of mayhem.*fn3 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 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 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.

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 Gonzales apartment.*fn4 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.*fn5 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, 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 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 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 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 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."

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.*fn6 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. 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.

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 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.*fn7 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 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.

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.*fn8 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 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 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.*fn9 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 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 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.*fn10 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.

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 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 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.

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 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 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.

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:

a. Cross-examination on Ivan's Defense

"Q: Well, you knew that Ivan Gonzales claimed he was a ...


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