Court: Superior County: San Diego Super. Ct. No. SCD114421 Judge: Michael D. Wellington
The opinion of the court was delivered by: Corrigan, J.
Defendant Ivan Joe Gonzales was convicted of murdering Genny Rojas.*fn1 The jury found as a special circumstance that the murder was intentional and involved the infliction of torture.*fn2 However, it was unable to reach a penalty verdict. Another jury was impaneled, and the second penalty phase trial resulted in a death verdict.*fn3
Genny Rojas was four years old when she died in July 1995. She and her siblings had been removed from their mother's custody in April 1994, because their mother was abusing drugs and neglecting the children. They were placed with their grandmother, Utilia Ortiz. While in Ortiz's care, Genny appeared to the social worker to be happy and well cared for. However, she was a difficult child, fearful and prone to tantrums. Ortiz soon placed Genny in the care of Ortiz's daughter Anita and her husband Victor Negrette. After four months, the Negrettes decided that Genny had needs they were unable to meet. They returned her to Ortiz toward the end of 1994. In February 1995, Ortiz sent Genny to live with another daughter, Veronica, and her husband Ivan Gonzales, the defendant in this case. The Gonzaleses had six children of their own and lived in a two-bedroom apartment in Chula Vista.
On the evening of July 21, 1995, two neighbors were standing outside a window of the Gonzales apartment. They heard a loud bang, or thud, as if something had hit a wall inside the apartment, immediately followed by the sound of a child crying. Defendant came to the window, looked out, and shut the window forcefully. He emerged from the apartment, slammed the door, and walked off toward a nearby liquor store. He appeared to be angry and in a hurry. Defendant entered the liquor store, where he was a regular customer, at 8:45 p.m. He asked for and received credit, purchased some grocery items, and left after five or 10 minutes.
Around 9:00 that evening another neighbor, Patty Espinoza, heard Veronica Gonzales screaming for help. Veronica said her niece had been burned in the bathtub. Patty came out of her apartment and asked how anyone could be burned in the bathtub. Veronica asked Patty to come with her, and not call the police. In the Gonzales apartment, Patty saw a child lying on the floor. Defendant was nearby. Patty told them she did not know how to perform cardiopulmonary resuscitation (CPR), but that her sister Naomi did. Patty ran to get Naomi, who also lived in the building, and told the Gonzaleses to call 911. Veronica, however, repeatedly said not to call the police.
Naomi Espinoza had heard the commotion, and came out of her apartment upon hearing that a child was not breathing. She saw defendant carrying a little girl. Naomi, a nurse's assistant, had CPR training. She asked defendant what happened, and he replied that the child had burned herself in the bathtub. Questioned further by Naomi, defendant explained that the child did not know how to regulate the water. Naomi told him to take the child into Patty's apartment. Defendant did so, and put her down on the rug.
Naomi testified that she knew the child was dead, "just by looking at her." Nevertheless, she checked for a pulse and attempted CPR. The body was cold, the lips white. Naomi noticed scars on the body and a bald spot on the head. Shortly after the first police officers arrived, Naomi left the apartment.
A 911 call was placed around 9:20 p.m. Sergeant Barry Bennett responded, along with other officers. As he approached the apartment, Veronica met him and directed him inside. Bennett found a little girl lying on the floor. Checking her vital signs, he detected no pulse or breathing. He did not attempt CPR. The body was very cold and felt rigid, indicating to him that the child had been dead for some time. The shirt she was wearing was dry, as were her skin and hair. While he was examining the body, Veronica told Bennett she had put the child in the tub, run the water, and gone to the kitchen to cook dinner. After about 20 minutes, she returned to the bathroom and found the child under the water. Bennett noted that defendant sat nearby, and described his demeanor as "nonchalant."
Bennett called in homicide and child abuse investigators. It was obvious to him that the death was not accidental and the child had been abused. The entire lower part of her body appeared to have been burned, and there were numerous other injuries.
Fireman John Miller arrived at the apartment at 9:25 p.m. He too assessed the child, and found her cold and without a pulse. He prepared to perform CPR, but found the jaw clenched and difficult to move. Miller concluded that rigor mortis had set in.
A medical examiner came to the scene around 1:00 a.m. He performed a preliminary external examination of the victim, who was identified as Genevieve Rojas. He noted a second- to third-degree burn from her waist to her feet, and other burns on her face, arms, and torso. Rigor mortis, which begins to develop within an hour or two of death, was present. An autopsy was conducted the next morning. Genny was thin and small, but adequately nourished. Her body was covered with injuries.
A large burned area on top of Genny's head had only partially healed. This injury was infected, and at least a week old. It could have been caused by hot liquid, possibly on more than one occasion. The back of the head was also burned. There was hair loss, both in the burned area and elsewhere. A similar burn appeared on the back of the neck and shoulder. The skin on Genny's ears had been eroded, exposing the cartilage. There were also abrasions at the end of her eyebrows and on the bridge of her nose. These injuries could have been caused by rough fabric tightly bound around her head.
There was bruising around both eyes, probably inflicted within a day or two of death. Pinpoint hemorrhages in the right eye were typical of strangulation. The cheekbone, shoulder, and neck were bruised. There were recent burns on both cheeks, in a grid pattern matching the grill on a hairdryer found in the Gonzales apartment. Similar burns appeared on the shoulders and left bicep. Genny's lip was lacerated and torn away from the gum. Numerous small injuries on her face could have been inflicted with a hairbrush. She had suffered a subdural hematoma, the result of a blow or shaking within a day of her death, and an older brain hemorrhage that had been caused by a violent blow.
Genny's neck bore a ligature mark, extending upward behind her left ear. This injury was a week or two old. A similar scar ran from her jawbone to the underside of her chin. There were triangular scars on top of her left shoulder. On her arms were parallel scars typical of the marks left by handcuffs. Handcuffs matching the marks on Genny's arms were recovered from the Gonzales apartment. Her arms and wrists also had abrasions, which could have been caused by binding with a cord. Bruises on the inside of her thighs suggested she had been grabbed from behind with a great deal of force. Ulcerated areas on both heels in the area of the Achilles tendon were consistent with erosion from binding.
The most significant injury, and the cause of death, was the burn on the lower part of Genny's body. It appeared to be an immersion burn, with spared areas behind the knees, in the groin area, and on the buttocks indicating that Genny had been held down in a fetal position in the tub, with her arms out of the water. Death would have occurred within two to three hours. There was no evidence of drowning. Genny's thymus gland was atrophied, a sign of prolonged stress. It was clear to the examiner that she had been chronically and repeatedly abused.
A pediatric burn expert confirmed that the burn was an immersion injury. He estimated the water temperature at 140 degrees or higher. It would have been seven or eight inches deep, and Genny must have been held down firmly, leaning forward a little. The burn injury could have been inflicted in 10 seconds or less; it could not have occurred gradually. With treatment, the chances of survival would have been around 90 percent. However, within one to four hours of infliction, Genny would have gone into shock. Death could occur quite rapidly thereafter in a child of her age.
The burn on Genny's scalp could have been caused by hot water striking the top of her head and flowing onto her neck and shoulders. The expert did not believe it was accidentally inflicted, or that it could have been caused by Genny tipping over a pot of hot water on the stove.
Officer Bennett went to the Gonzales apartment shortly after he examined Genny's body in Patty Espinoza's apartment. The bathtub in the Gonzales bathroom appeared to be dry, as did the bathroom floor. Human tissue subsequently found in the tub was consistent with Genny's DNA, and not with defendant's or Veronica's. It took 15 minutes to fill the tub with hot water. When full, the water was eight and a half inches deep, and 140 degrees. At that temperature, it would have taken six to eight seconds to cause the burn on Genny's lower body.
In one bedroom, the area behind the door was cordoned with a string fastened to the doorknob at one end, and to the knob of a nightstand placed against the wall at the other. In this triangular area there was an indentation in the wallboard, 36 inches from the floor. There were bloodstains in the indentation, and on the wall around and below it. A blanket behind the door was stained with matter consistent with Genny's DNA.
The closet in this bedroom yielded a considerable amount of bloodstain evidence. The closet doors were off their tracks, and leaned into the closet. A metal hook was fastened to the closet bar mounting bracket. On the floor beneath the hook was a wooden box, measuring about two feet in all three dimensions. A hole in one of the closet doors afforded a view of the hook. On the wall of the closet, below the hook and above the box, were many bloodstains. Some were created by hair wiping against the wall, others were the result of blood being flung against the wall. There was blood on the closet bar, the hook, and the cloth fastening the hook to the bar. There was a bloody footprint on the wall, but no handprint. There was blood on the edge of the box, and both blood and feces in the box. The interior of the closet door was spattered with blood.
The bloodstains were consistent with a scenario in which a bleeding child Genny's size was suspended from the hook in the closet, rubbing some blood on the surfaces around her and casting some off as she swung back and forth, bracing herself with her feet on the box and the wall. Genny's DNA was consistent with blood samples taken from the closet.
Defendant was interviewed by detectives at 9:45 a.m. on the morning after Genny's death. A videotape of the interview was played for the jury. He said Genny had not been toilet trained, and they had problems with her "goin' to the bathroom a lot, in her pants and on the floor." The previous evening, he and Veronica had put Genny in the bath together, and he had "set the water on warm." Only they and their children were in the apartment. After 10 minutes or so Veronica told defendant to check on Genny, but he was distracted by a loud bang and checked on the other children instead. He went to the store and bought milk, bread, and beer, returning in about 10 minutes. Veronica was making dinner. After another 10 minutes or so, she went to check on Genny, and screamed for defendant. He found Veronica taking Genny out of the bathtub. He tried to perform CPR, but it wasn't helping, so Veronica went to get help from Patty next door.
Defendant said Genny had a lot of marks on her body, which he attributed to her habit of peeling and picking at her own skin. The burn on her head had happened when she knocked over a pot of boiling water. They had not gotten a Medi-Cal card for Genny from Veronica's mother, so they tried to care for the burn themselves. Genny would rub her head against the walls. Defendant said the ligature mark on Genny's neck was caused by "neighbor kids" pulling on a candy necklace. He had not noticed the hair dryer burns on Genny's face.
Defendant admitted that he and Veronica made Genny sleep in the closet three or four times. He also said he put her in the box a couple of times, to scare her. Defendant claimed the hook above the box was also meant to scare Genny, but he denied ever tying her to the hook. The hole in the closet door was used to hold a stick on which they would dry clothing, according to defendant. He said they never handcuffed Genny, though Veronica tied her hands with cloth once. He insisted they did not hold Genny down in the hot water.
The jury also watched a videotape of preliminary hearing testimony by defendant's oldest child, Ivan, Jr., who was eight years old when he testified.*fn4 He said Genny did not sleep with the other children, but in his parents' room or in the bathtub. Her hands and feet were tied when she was in the tub. The children's bedroom had no doorknob, and Ivan, Jr., could look through the hole in the door and see into the bathroom. There was a sliding lock on the outside of the bedroom door.*fn5 On the night Genny died, Ivan, Jr., and the other children were locked in their room. Ivan saw Genny in the bathtub, through the hole in the door. Then he heard her screaming and crying, but he did not look again. He did not see his father put water in the tub. After his mother screamed, his father came to the door and told the children to stay in the room. His father seemed to be sad.
When Genny came to live with them, she had all her hair and no marks or bruises on her face. Ivan, Jr., said she lost her hair when his mother burned her, and pulled out her hair. He saw both his parents pulling her hair out, many times. He added that he had watched through the hole in the door on many occasions when his mother and father burned Genny with hot water in the bathtub. "They would put her in the tub and they would start putting hot water, and then a few of her hairs would come off." Genny would lie down in the tub, and his father would hold her head down, with his mother helping. Hot water would come out of the spout, and Genny would scream and cry. Ivan, Jr., never saw her get burned by a pot of hot water on the stove.
Genny would scratch her head on the wall, and when she did his parents would hit her with a belt. Ivan, Jr., said that Genny was potty trained and did not have accidents going to the bathroom. He saw Genny in the closet in his parents' room many times, with her hands tied. He saw her on the floor of the closet, and also in the box. One time he saw Genny hanging in the closet, "in a basket," with her hands tied and her feet off the ground.
The rest of the children ate in the kitchen, but Genny ate in the parents' room. Sometimes Ivan, Jr., would give Genny food, when she was crying for it. If his parents discovered this, they would hit him. Once they made him and his siblings throw balls at Genny. Ivan, Jr., would "throw it crooked" because he did not want to hurt her.
Ivan, Jr., said his mother would usually get what she wanted if his parents disagreed about something. He was afraid of his father, but not of his mother. He thought his mother was afraid of his father, who hit her. However, his mother often told his father what to do, and sometimes he would obey.
Juan Lozano, a nephew of Patty and Naomi Espinoza, testified that when Genny's body was brought into Patty's apartment he tried to perform CPR, before Naomi arrived. He had no difficulty moving Genny's jaw in order to clear an airway. Lozano said Genny was cold, with no pulse or breath. Her hair was damp.
A social worker testified that on July 24, 1995, shortly after Genny's death, Ivan, Jr., told her that he didn't hear Genny cry, but did hear her say "ow," and then his mother had found her in the water. He said he was afraid of his father, but not of his mother. He told the social worker that he did not see anyone hit Genny and did not think his parents would hurt her. On subsequent meetings before the preliminary hearing, he said nothing about Genny being abused. He did say that Genny rarely came out of his parents' bedroom.
The rest of the defense case was primarily aimed at establishing that Veronica was the dominant spouse in defendant's marriage.*fn6 The owner of a grocery store near the Gonzales apartment testified that she saw defendant in the store on a daily basis, and he was quiet and submissive. Veronica, on the other hand, who came in monthly to cash her check, was assertive and outgoing. When defendant was along he would stay behind Veronica, watching the children, and let her do the talking. Veronica would tell him which brand of cigarettes she would buy for him.
Guadalupe Baltazar, defendant's sister, testified that she had seen Genny at defendant's apartment twice. The first time, about a month after she had come to live with them, she was playing with the other children and appeared normal. The second time, shortly after the 4th of July, she had a towel wrapped around her head. Baltazar knew Genny had burned her head, because she was present a couple of weeks earlier when defendant came to their mother's house and asked for money to buy ointment. At the Gonzales apartment, Veronica took the towel off and showed Baltazar the burn, which had formed a scab on Genny's head and shoulder. There were no cuts or scars on her face, arms, or legs.
The Gonzaleses had lived with Baltazar for a while, and she saw them on social occasions. She never saw defendant verbally or physically abuse Veronica, but once, as defendant was working on a car, Veronica angrily slammed the hood on his head. She also pulled some wires out of the car and yelled at defendant, who did not respond other than to tell her to "knock it off." Patricia Andrade, another of defendant's sisters, testified that Veronica was verbally and physically abusive toward him.
Eugene Luna had supervised defendant when he worked as a garbage truck driver. Luna had socialized with the Gonzaleses, and never saw defendant being physically aggressive with his wife. He had seen Veronica on one occasion hit defendant in the mouth with her fist, during an argument. His general impression was that Veronica was in charge of the household and made the decisions. Defendant once told Luna that Ivan, Jr., had seen Luna's son kissing Veronica. He asked Luna to talk to his son about this, but the son denied having an affair with Veronica. Defendant had seemed nervous and embarrassed. Later, Luna's son admitted the affair and said a child had been born as a result. Defendant never mentioned the matter again. About six months later the Gonzaleses moved and Luna had no further contact with them.
Eugene Luna, Jr., testified that he had an affair with Veronica for a few months when he was 16 or 17. On one occasion, defendant had challenged him about the affair, and took a swing at him. Luna, Jr., swung back, knocked defendant down, then helped him up. That was the end of the confrontation. Veronica became pregnant and named Luna, Jr., as the father. Luna, Jr., once saw Veronica become angry with defendant, throw a plate at him, and hit him in the mouth. Another time, after a night of drinking, Veronica had lost her temper when defendant tried to help her roll up a car window. She cursed at defendant and kicked the dashboard of the car. Witnesses called the police, who ended up spraying Luna, Jr., and defendant with mace, and arresting Veronica.
Lorena Peevler knew defendant because her ex-husband was defendant's best friend. Defendant was quiet and shy as a teenager. Lorena became friends with Veronica, and the Gonzaleses lived with the Peevlers for a few months. Veronica picked fights with defendant, yelling at him. She also hit him and scratched him. Defendant tried to protect himself, but did not hit back. After one fight, he ran away and climbed a utility pole. The police came to get him down. Lorena saw Veronica as the boss in the relationship. Frank Peevler testified that he and defendant grew up together. Defendant's parents were not abusive. Defendant was shy and timid around girls. Frank also viewed Veronica as the dominant partner in the Gonzales relationship.
On rebuttal, the prosecutor called Martha Halog, a neighbor of the Gonzaleses' in the apartment building where Genny came to live. Halog had overheard an argument in which defendant verbally abused Veronica. Victor Negrette, Veronica's brother-in-law, testified that defendant was a jealous and overprotective husband. He and Veronica argued a lot, and on one occasion she asked Negrette to come get her because defendant had hit her. Negrette heard defendant yell and curse at Veronica many times. He had also seen defendant yanking one of the Gonzales boys by the arm, hitting him with a plastic bat, and kicking another son. Negrette once saw defendant angrily punch out the windows of a car parked near the Gonzales apartment.
The jury that found defendant guilty of murder was unable to reach a penalty verdict, dividing eight to four. The penalty phase was retried before a new jury. The prosecutor relied on evidence of the crime similar to the showing made at the guilt phase. Defendant recapitulated his guilt phase defense, and also provided witnesses testifying to his good behavior in prison, his character when he was growing up, his Catholic upbringing, his children's love for him, and the effect his execution would have on them, his siblings, and his parents.
Defendant challenges the trial court's denial of a series of pretrial motions. These rulings require no extended discussion, because they conform with established California law and defendant develops no arguments persuading us to change our settled views. Thus:
Individual and sequestered voir dire of prospective jurors in capital cases is not required. (People v. McKinnon (2011) 52 Cal.4th 610, 632-633; People v. Gonzales, supra, 51 Cal.4th at p. 956.)
The court properly denied defendant's motion for a jury instruction that a sentence of life without the possibility of parole would mean that he was actually ineligible for parole. (People v. Salcido (2008) 44 Cal.4th 93, 164; People v. Kennedy (2005) 36 Cal.4th 595, 641.)
The court's denials of defendant's motion to set aside the indictment and motions on related grounds by Veronica, in which defendant joined, were not error on any of the following grounds: inclusion of inapplicable aggravating factors (People v. Lomax (2010) 49 Cal.4th 530, 593); failure to designate factors as aggravating or mitigating (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 334); failure to require written findings on aggravating factors (id. at p. 333); failure to require proof beyond a reasonable doubt as to aggravating factors, the balance of aggravating and mitigating factors, and the appropriateness of death as the penalty (ibid.); lack of intercase proportionality review (ibid.);*fn7 use of the adjectives "extreme" and "substantial" in section 190.3 factors (Gonzales and Soliz, at p. 334); asserted vagueness of the section 190.3 factors (Gonzales and Soliz, at p. 334); or prosecutorial discretion over whether to seek the death penalty (People v. Gonzales, supra, 51 Cal.4th at p. 958.) Defendant makes no attempt to explain how any of these factors may have been a proper ground for setting aside the indictment. He merely relies on general constitutional arguments that have consistently been rejected by this court.
The trial court properly denied defendant's motion to strike the torture-murder special-circumstance allegation. Defendant contends the definition of torture murder is unconstitutionally vague and fails to adequately distinguish between death-eligible torture-murderers and other torture-murderers. We have held otherwise. (People v. Chatman (2006) 38 Cal.4th 344, 394; People v. Barnett (1998) 17 Cal.4th 1044, 1161-1163.) Defendant claims the defects in the special circumstance were particularly problematic under the facts of his case and the instructions given to the jury. These matters were beyond the scope of his pretrial motion to strike.
Defendant moved for the jury venire to be drawn from the South Bay Judicial District of San Diego County, where the crime was committed and where he claimed there was a higher percentage of Latino residents. The trial court's denial of this motion was supported by law. (People v. Coddington (2000) 23 Cal.4th 529, 573-574; O'Hare v. Superior Court (1987) 43 Cal.3d 86, 93-97.) Defendant offers no specific argument other than to claim, without reference to the record, that it was unfair for defendants charged with homicides occurring in the North County Judicial District to have juries drawn from that district, while those charged with homicides in the South Bay Judicial District had juries drawn from the entire county. He did not make this argument below, and it is not properly before us on appeal.
Defendant also challenges the court's denial of Veronica's motion to quash the jury venire, in which he joined. The motion was based on the exclusion of noncitizen residents and felons, grounds that we have rejected. (People v. Pride (1992) 3 Cal.4th 195, 227; People v. Karis (1988) 46 Cal.3d 612, 631-634.)
Finally, defendant claims the court erred by denying his motion for supplemental discovery of the charging practices of the district attorney, which was aimed at showing racial discrimination in the decision to pursue the death penalty. Defendant concedes that he failed to provide a plausible justification under People v. McPeters (1992) 2 Cal.4th 1148, 1171, and People v. Ashmus (1991) 54 Cal.3d 932, 980, but asks us to reconsider those precedents. We decline to do so. (See also In re Seaton (2004) 34 Cal.4th 193, 202-203.)
2. Defendant's Waiver of His Right to Be Present
Defendant contends he did not validly waive his right to be present on four occasions: the initial meetings with prospective jurors before the guilt phase and again before the penalty phase retrial, and two sessions of voir dire exploring prospective jurors' claims of hardship before the guilt phase.
Before trial, the court announced that it would use the jurors' lounge to meet with the first group of 300 to 400 prospective jurors. The parties would then return to the courtroom to go through the forms filled out by prospective jurors claiming hardship. The court said that defendant might not want to be present for the initial meeting in the jurors' lounge, and noted that defendants routinely waived the right to be present for such proceedings. The court explained:
"He's got a right to be present. If he wants to be, he will be. Most defendants don't want to do that. He will have to be -- he'll be in custody. There will be extra marshals around him. He won't be in as secure a setting so there will be extra security. He'll be in waist chains and handcuffs which can, to some extent, be covered up by clothes. But the overall picture that's presented to the jury isn't going to be quite the same one that we would be able to do here in the courtroom."
Defense counsel said his client would waive the right to be present on that day. The court told defendant what would be happening at the first meeting with the venire. It advised him that he had the right to be present but extra security would be required in the jurors' lounge, meaning that "you'll be in chains." Defendant said he was willing to give up his right to attend the proceedings in the jurors' lounge. On the court day before the first meeting, defense counsel asked the court to be sure the court's records reflected that defendant's presence was not required, "just so that he doesn't end up sitting in a holding tank all day."
At the meeting in the jurors' lounge, the court explained the selection process, the time commitment that was required, and the bases for obtaining a hardship exemption. Those requesting an exemption filled out a form and were told to return in the afternoon. The remaining prospective jurors were introduced to counsel, heard the charges against defendant, received some preliminary instructions, and were given questionnaires to complete. The court told them that defendant "is not present today but will be present at every future hearing."
In the afternoon, prospective jurors claiming hardship came to the courtroom, and the court questioned some of them individually. This process continued the next court day, which the court began by announcing that defendant "is not present, having waived his presence for this initial phase of the jury selection." Ten jurors were not granted hardship exemptions. The court read them the charges and gave them preliminary instructions. The court informed them again that while defendant was not present, he would be at all future hearings.
Before the penalty phase retrial, defense counsel reported that defendant was again willing to waive his right to be present in the jurors' lounge for the "mass group" of prospective jurors, and asked the court to put his waiver on the record. The court again explained, more briefly this time, the nature of the proceedings and asked defendant if he was willing to give up his right to be present. Defendant said yes.
Defendant now claims his waivers were invalid, and notes that he never waived his right to be present in court when the hardship voir dire was conducted before the guilt phase. He argues that the court improperly required him to choose between his right to be present and his right not to be shackled in front of the jury. Defendant contends his constitutional rights to be present under the Sixth and Fourteenth Amendments, and article I, sections 7 and 15 of the California Constitution, were violated, as well as his statutory right to be present under section 977, which could only be waived in writing. (§ 977, subd. (b)(1).)
" 'Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent "interference with [his] opportunity for effective cross-examination." ' [Citation.]) 'Due process guarantees the right to be present at any "stage that is critical to [the] outcome" and where the defendant's "presence would contribute to the fairness of the procedure." ' [Citation.] ' "The state constitutional right to be present at trial is generally coextensive with the federal due process right. [Citations.]" [Citation.] Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant's personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. [Citations.]' [Citation.] 'Defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.' [Citation.]" (People v. Blacksher (2011) 52 Cal.4th 769, 799.)
Here, the trial court was too quick to declare that defendant would be subjected to physical restraints if he chose to be present. It did not make the required specific findings of manifest need for restraints. (See Deck v. Missouri (2005) 544 U.S. 622, 633; People v. Duran (1976) 16 Cal.3d 282, 290-291.) It is reasonable to conclude that defendant's decision to be absent was influenced, in part, by the prospect of being shackled.*fn8 The court should also have secured a written waiver, as required by statute. (§ 977, subd. (b)(1).) Nevertheless, we have rejected claims of error based on a defendant's absence from jury screening discussions. (E.g., People v. Rogers (2006) 39 Cal.4th 826, 855-856; People v. Ervin (2000) 22 Cal.4th 48, 72-74; People v. Hardy (1992) 2 Cal.4th 86, 178.) In any event, defendant fails to bear his burden of showing prejudice.
Defendant does not contend he might have provided assistance to his counsel during these essentially administrative jury selection proceedings. His only claim of prejudice is that the prospective jurors may have gotten the impression that he, charged with a horrible crime, "callously did not bother to show up at his own capital trial." Such a speculative and peripheral consideration is insufficient to establish a reasonable probability (People v. Watson (1956) 46 Cal.2d 818, 836) or a reasonable doubt as to the eventuality of a result more favorable to defendant had he been present (Chapman v. California (1967) 380 U.S. 18, 87; Gonzales, supra, 51 Cal.4th at p. 953). Experienced defense counsel saw no need for defendant's presence. The prospective jurors were preoccupied with the mechanics of filling out questionnaires. They were well aware of the large number of venire members, and the sometimes tedious process of jury selection. At the guilt phase, they were told by the court that defendant would be present at all future proceedings, and he was. It is unlikely that the prospective jurors at either phase thought any the less of defendant because he was not personally present at this early stage of the proceedings.
3. Exclusion of Evidence That Veronica Was Abused as a Child
Defendant claims the court violated his fundamental right to present a complete defense by refusing to allow him to introduce evidence that his wife Veronica had witnessed and experienced child abuse in her own family, similar to the abuse inflicted on Genny Rojas.*fn9 Defendant contends this was circumstantial evidence of third party liability, which did not amount to improper propensity or profile evidence. He alternatively argues that even if it was proper to bar this evidence on state law grounds, the exclusion violated his federal constitutional rights. Defendant further contends that if his murder conviction is upheld, the torture-murder special circumstance should be vacated because the evidence of Veronica's childhood experiences would have negated the intent-to-kill element.*fn10
At trial, defendant made an offer of proof consisting of four documents and an expert witness. He presented a juvenile court petition from August 1980, stating that Veronica's mother, Utilia Ortiz, had brought her 16-year-old daughter Mary (who eventually became Genny's mother) to a sheriff's station and stated she could not control her. Mary had scratches and bruises on her arms, legs, shoulders and back, which she said were the result of her mother's beatings with sticks and boards. Mary said the bruises were minor compared to others her mother had inflicted.
Defendant also offered reports detailing interviews with a cousin, an uncle, and a friend of Veronica's. The cousin recalled that Ortiz drank heavily and was "scary" when drunk, starting fights with her husband. Mary was a stubborn and difficult child, while Veronica and Anita were the favored daughters. The cousin was unable to recall specific incidents, but in August 1980 a social worker had noted the cousin's report that Ortiz had hit Mary with a broomstick and lit a pile of newspapers at her bare feet, causing Mary to run away. The cousin said that once, when drunk, Ortiz had "pulled the girls by their hair and pulled them around the house."
Veronica's uncle said that Mary had shown him burns Ortiz inflicted on her. Ortiz yelled and cursed at the girls, but Veronica had been spared to some degree because she was the favorite of Ortiz's husband. Ortiz fought with various family members when drunk. Veronica's friend had heard Veronica and Mary describe their abuse in 1986. Mary remembered that Ortiz would "tie them back to back and set their legs on fire." Veronica said she also remembered that. When asked if Ortiz had tortured them, the girls said "yes."*fn11
Defendant also proffered the testimony of Dr. Patricia Perez-Arce, a neuropsychologist with expertise in the social development of Latino children. At a hearing held under Evidence Code section 402, Dr. Perez-Arce testified that defendant's family exemplified traditional Mexican-American values. Veronica's family did not share these values, due to her mother's drunkenness and violence. Her mother had provided a model of poor impulse control and violent reaction to stressful or threatening situations. Those experiences would have influenced Veronica in dealing with her own frustrations as a mother.
Perez-Arce conceded that Veronica's biological children were well cared for, but opined that Genny's arrival in the household created stress that caused Veronica to become abusive. Genny may have become the target of that abuse because she had been imposed on Veronica by her mother, because Veronica and Mary had an "adversive" relationship, and because, according to defendant, Veronica suspected him of having had an affair with Mary and perhaps of fathering Genny. On cross-examination, Perez-Arce said she had no data on how frequently abused children became abusers themselves, but thought it occurred less than half the time. She also acknowledged that Latino men, like men in general, were more likely to physically abuse their children than Latina women.
The trial court, after extended consideration, decided defendant had proffered character evidence that was inadmissible under Evidence Code section 1101. The court further ruled that applying this state rule of evidence did not violate defendant's federal constitutional rights to present a defense, because the evidence of Veronica's childhood abuse, while probative to some degree, was weak and speculative insofar as it reflected on her behavior toward Genny.
We review the court's rulings under Evidence Code section 1101 for abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1003.) Defendant argues that his proffer did not amount to "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) He notes he did not offer evidence that Veronica had committed prior acts of child abuse. However, the prohibition on character evidence is not so limited. The statute is aimed at evidence of a person's "propensity or disposition to engage in a certain type of conduct," when "offered as a basis for an inference that he behaved in conformity with that character on a particular occasion." (Cal. Law Revision Com. com., 29B pt. 3B West's Ann. Evid. Code (2009 ed.) foll. § 1101, p. 221.) This is precisely what defendant sought to establish by offering evidence of Veronica's childhood experiences. He wanted the jury to infer that she, not he, was responsible for abusing Genny due to a propensity that developed during her youth.
Defendant seeks to distinguish People v. Walkey (1986) 177 Cal.App.3d 268, which the trial court found persuasive. There, the prosecution called an expert to testify that Walkey, who had been an abused child himself, fit the profile of a battering parent. The court held that this was impermissible character evidence. (Id. at p. 276.) Defendant insists he offered no similar "profile" evidence. However, to the extent he sought to establish that Veronica modeled her conduct on her mother's behavior, he necessarily claimed that Veronica's childhood experiences had resulted in a character trait predisposing her to abuse Genny. The court properly ruled that this evidence was barred by Evidence Code section 1101. (See People v. McWhorter (2009) 47 Cal.4th 318, 372-373 [Evid. Code, § 1101 applies to third party culpability evidence]; People v. Abilez (2007) 41 Cal.4th 472, 502-503 [same]; People v. Davis (1995) 10 Cal.4th 463, 501 [same].)
Defendant contends the evidence showed that Veronica had learned abusive methods of discipline as a child by observing her mother. He compares this case to People v. Griffin (2004) 33 Cal.4th 536, 582-583, where the prosecution presented evidence that Griffin had learned slaughtering techniques while working at a meat company, which he then used on the murder victim. However, no specialized techniques were employed in the abuse of Genny Rojas. The more bizarre forms of abuse she suffered (being hung from a hook in a closet and branded with the grill of a hair dryer) required no expertise, nor were they similar to the abuse to which Veronica was allegedly exposed. Likewise, the burns inflicted on Genny with hot water were neither technically arcane ...