People v. Nieves ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SANDI DAWN NIEVES,
Defendant and Appellant.
S092410
Los Angeles County Superior Court
PA030589-01
May 3, 2021
Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Corrigan, Liu, Cuéllar, Kruger,
Groban and Jenkins concurred.
PEOPLE v. NIEVES
S092410
Opinion of the Court by Cantil-Sakauye, C. J.
A jury convicted Sandi Dawn Nieves of the first degree
murder of her daughters Nikolet Amber Nieves, Rashel Hollie
Nieves, Kristl Dawn Folden, and Jaqlene Marie Folden (Pen.
Code, § 187),1 attempted murder of her son, F.D. (§§ 664, 187),
and arson (§ 451, subd. (b)). The jury found true the special
circumstance allegations that defendant committed multiple
murders, and that each murder was committed while lying in
wait and while engaged in the crime of arson. (§ 190.2, subds.
(a)(3), (a)(15), (a)(17).) Following the penalty phase of trial, the
jury returned a verdict of death. The trial court denied
defendant’s motion to modify the death penalty verdict and her
motion for a new trial (§ 190.4, subd. (e)) and sentenced her to
death. This appeal is automatic.
We affirm Nieves’s convictions but reverse her death
sentence due to the trial court’s misconduct.
I. BACKGROUND
A. Guilt Phase Evidence
Defendant called 911 to report a fire at her home in early
July 1998. When paramedics arrived, the fire had been out for
some time and defendant was covered in soot and sitting in the
living room with her 14-year-old son F.D. Defendant’s four
1
All further statutory references are to the Penal Code
unless otherwise indicated.
PEOPLE v. NIEVES
Opinion of the Court by Cantil-Sakauye, C. J.
daughters, ages 12, 11, 7, and 5, were lying on sleeping bags on
the kitchen floor and had all died of smoke inhalation. The oven
was open with burned items inside and gasoline had been
poured and lit in the hallway and bedrooms.
1. Relevant relationships
The father of F.D. and defendant’s two older daughters
was her first husband Fernando Nieves.2 Defendant had two
daughters with her second husband, David Folden, who
eventually adopted her three older children. Some years later,
as defendant was divorcing Folden, she had an affair with
Fernando. When he ended the affair, defendant sent Fernando
her will and life insurance policies and told him she wanted him
to have custody of all the children if she died. Later, unhappy
about the end of the affair, she sent an angry letter telling
Fernando he could no longer have contact with her or the
children.
Defendant began seeing Scott Volk several months before
the crime. They dated briefly before Volk ended the
relationship. Upset over the breakup, defendant threatened to
commit suicide; she sent the children to stay with their fathers
and wrote a suicide note but did not end her life. When she faced
eviction for unpaid rent, defendant moved to the town where
Volk lived and they eventually resumed a relationship. Volk
broke up with defendant again after learning she was pregnant.
2. Events surrounding the fire
Defendant had an abortion on a Thursday the week before
the fire. She told Volk’s mother that abortion had been out of
2
Given his shared surname with defendant, we will refer to
Fernando Nieves by his first name to avoid confusion.
2
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Opinion of the Court by Cantil-Sakauye, C. J.
the question until she began to think of suicide as a solution to
her circumstances. The weekend after the abortion, attorneys
served defendant with notice that Folden intended to revoke his
adoption and child support for her three older children. When
Fernando spoke to defendant afterward, she was “furious” at the
prospect of losing child support.
Defendant sent a note to Folden that was postmarked on
the day of the fire. She wrote: “Now you don’t have to support
any of us! FUCK YOU you are scum!” In a letter to Volk that
he received a few days after the fire, defendant wrote: “I was
always here for you — you just couldn’t see it. Now you never
will. [¶] I can’t live without you in my life . . . I have nothing
left you took it all[.]”
Defendant’s son F.D. testified that on the night of the fire
defendant declared they would have a “slumber party” in the
kitchen. F.D. did not want to sleep in the kitchen but defendant
insisted. Sometime in the night during the fire, defendant shook
F.D. and his sisters to wake them up. She told them to breathe
into their pillows and stay where they were because the fire
could be coming from outside. F.D. lost consciousness, but later
got up and could see his mother and sisters lying on the floor.
He lay down again and when he awoke it was light outside and
his mother was up but did not answer when he asked what had
happened.
3. Defense case
Defendant’s friends testified that defendant was active in
the Mormon Church and was a caring and devoted mother.
Defendant was very depressed after her abortion and regretted
it. Those who spoke to defendant just before the fire said she
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Opinion of the Court by Cantil-Sakauye, C. J.
was upset about recent events but had plans for the immediate
future and did not seem to be thinking about suicide.
When defendant testified, the prosecutor asked about her
interview with a defense expert, whose notes showed that
defendant reported writing letters to Folden and Volk the night
of the fire and going to the post office to mail them at
approximately 1:00 a.m. When testifying, defendant said she
did not remember writing and mailing the letters or telling the
expert about it. She claimed that she lay down near her children
to warm her feet on the oven, woke up with no idea where the
fire was coming from, and did not remember anything else about
the night of the fire. She thought she dreamed about holding a
lighter and seeing flames, but when she saw scorched hair on
the back of her hand she realized it was not a dream.
Defendant said she had been hysterical about having an
abortion; subsequently, she started taking phentermine, a diet
medication, and the antidepressant Zoloft. A toxicology report
after the fire confirmed that defendant had phentermine in her
system but no screen had been done for Zoloft.
The experts who testified for the defense included two
psychiatrists, Dr. Philip Ney and Dr. Gordon Plotkin, and a
neuropsychologist, Dr. Lorie Humphrey.
Dr. Ney testified that a combination of Zoloft and
phentermine could cause serotonin syndrome, a condition
capable of triggering seizures. Defendant’s descriptions of the
night of the fire, and history of seizures in early childhood, were
consistent with having had a seizure. Dr. Ney explained that a
seizure could have induced a dissociative state, which would
cause a person to be “basically unconscious” even while engaged
in complex behaviors.
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Opinion of the Court by Cantil-Sakauye, C. J.
Dr. Plotkin confirmed that Zoloft and phentermine could
trigger serotonin syndrome and seizures and result in delirium
that might cause a person to do “unusual” things. On cross-
examination, Dr. Plotkin conceded that actions such as writing
letters and driving to the post office were not consistent with
delirium. He testified that a seizure or serotonin syndrome
would not cause dissociation, as Dr. Ney had claimed.
Dr. Humphrey administered neuropsychological tests to
assess defendant for brain damage. Results showed some
impairment that made it harder for defendant to function under
stress, rendered her more impulsive, and affected her memory.
4. Rebuttal
A psychiatrist testifying for the prosecution disputed Dr.
Ney’s testimony that defendant was in a dissociative state on
the night of the fire: there was too much she remembered; her
memory was selective; and the diagnosis was inconsistent from
one examiner to another. Prosecution experts also included a
neurologist and a medical toxicologist, who found no evidence
that defendant experienced serotonin syndrome, a seizure, or
any type of unconscious state at the time of the fire. Two experts
on psychological testing also disputed Dr. Humphrey’s
conclusions. They found evidence that defendant tried to
manipulate the psychological testing and identified mistakes
and omissions throughout Dr. Humphrey’s report.
B. Penalty Phase Evidence
1. Prosecution case
Fernando Nieves, his wife Charlotte Nieves, and his
mother Minerva Serna gave victim impact statements on the
deaths of the children and the funeral. Fernando also recounted
how, within a month of the crimes, defendant tried to have F.D.
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Opinion of the Court by Cantil-Sakauye, C. J.
removed from Fernando’s custody and sent to live with a
maternal relative in Indiana whom F.D. had never met. Serna
expressed her belief during cross-examination that defendant
was “vicious and malicious” in the way she had tried to break up
Fernando’s relationships and keep him from seeing his children.
David Folden described coping with his daughters’ deaths
and his resentment at defendant’s efforts to turn her older
children against him. He felt that one thing F.D. gained from
the deaths of his sisters was freedom — his mother had been so
controlling she would not even let the children play in the front
yard.
In addition to victim impact testimony, the prosecution
showed a video of defendant’s children playing in various
settings and displayed poster boards mounted with photographs
of the victims engaged in activities with family members.
2. Defense case
The defense presented one expert witness, Dr. Robert
Suiter, who evaluated defendant and Folden during their
divorce proceedings. He explained his recommendation from
that time, approximately a year before the crime, that defendant
was best suited to have custody of the children.
Character witnesses included a number of defendant’s
friends, defendant’s maternal aunt, stepfather, and a bishop
from defendant’s church. They described defendant’s mother as
verbally and physically abusive during defendant’s childhood
and noted that defendant had experienced previous periods of
severe depression. Defendant’s life revolved around her
children and she was an active and loving mother. The
witnesses believed defendant could not have been in her right
mind if she killed her children; they concluded she must have
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been very depressed and viewed her as a “good mother who lost
touch with reality.”
A chaplain from the county jail testified concerning
defendant’s remorse and her desire to repair her relationship
with her son.
3. Rebuttal
The prosecution introduced a letter to defendant from one
of her daughters who threatened to run away and expressed
feeling ignored and unloved. Testimony from a neighbor and
staff from the victims’ school characterized defendant as a
controlling, overbearing, and manipulative parent whose
children seemed to fear her. Neighbors who knew defendant
and Folden during their divorce concluded that defendant lied
about the relationship and tried to turn her children against
Folden. Defendant seemed extremely angry, especially
regarding Folden.
II. DISCUSSION
A. Jury Selection
Defendant contends the trial court erred by conducting
voir dire that was inadequate to reveal prospective jurors’
disqualifying attitudes about the death penalty in violation of
her Fifth, Sixth, Eighth, and Fourteenth Amendment rights.
Specifically, defendant claims the jury questionnaire was
deficient because it omitted defense questions about the impact
that evidence concerning young victims would have on
prospective jurors’ decisionmaking, and it used questions that
were too confusing to elicit meaningful information about
prospective jurors’ views. Defendant also contends the trial
court’s “rushed” voir dire and restrictions on defense
questioning was inadequate to inform defendant’s exercise of
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challenges for cause and use of peremptory challenges. We find
no merit to these claims.
1. Background
The trial court prepared a jury questionnaire that
incorporated proposals from defense and prosecution drafts.
The defense proposed amendments to the court’s draft
questionnaire, addressing case-specific issues such as the
impact of unpleasant photographs and defendant’s abortion.
The defense also requested additional questions about whether
a crime involving four young victims would cause prospective
jurors to vote for the death penalty regardless of mitigating
evidence. The trial court incorporated most of the defense
amendments but rejected additional questions about the age of
the victims, which was instead referenced in a preamble to
questions about the death penalty.
The trial court rejected a defense motion to include two
revised questions referencing the age of the victims but agreed
to defense counsel’s alternate request to have bolded references
to the victims’ ages appear in close proximity to particular
questions. The defense then expressed agreement with two
bolded references to the victims’ ages and their location in the
questionnaire.
The final jury questionnaire contained eleven death
penalty questions. Question Nos. 60 to 63 asked if prospective
jurors felt the death penalty was used too much or too little, had
changed their view on the death penalty over the years, or
belonged to groups that advocated increased use or abolition of
the death penalty. After question No. 63, the questionnaire
explained the guilt and penalty phases of a capital trial,
informed prospective jurors concerning the special
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circumstances defendant faced, and explained the jury’s
responsibility to determine the penalty. The guidance
concluded in bolded print set apart from the preceding
paragraph: “Also assume for the purposes of questions 64–
67, that the evidence may tend to show that the four
deceased victims were the children of the defendant and
ranged in age from age five to age twelve.”
Question Nos. 64 to 66 asked whether prospective jurors
would, because of their views on capital punishment, refuse to
find the defendant guilty of first degree murder or special
circumstances to avoid deliberating on a penalty phase, or if
they would automatically vote for life without parole without
considering any aggravating or mitigating factors. Appearing a
second time in bold print directly before question No. 67 was the
instruction: “Assume for purposes of question 67 that the
evidence may tend to show that the four deceased
victims were the children of the defendant and ranged in
age from age five to age twelve.”
Question No. 67 asked if prospective jurors would
automatically vote for the death penalty: “Assume for the sake
of this question only, that the jury has found the defendant
guilty of first degree murder and has found one or more of the
special circumstances true and that you are in the penalty
phase. Would you, because of any views that you may have
concerning capital punishment, automatically refuse to vote in
favor of the penalty of life imprisonment without the possibility
of parole and automatically vote for a penalty of death, without
considering any of the evidence, or any of the aggravating and
mitigating factors (on which you will be instructed) regarding
the facts of the crime and the background and character of the
defendant?”
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The remaining questions asked prospective jurors:
whether those who would automatically vote for a particular
penalty would change their approach if ordered by the court to
consider and weigh the evidence and the aggravating and
mitigating factors; whether they could set aside their feelings
about what the law ought to be and follow the law as instructed
by the court; and what they understood the meaning of life in
prison without the possibility of parole to be.
The jury questionnaire instructed prospective jurors to
mark questions they did not understand with a question mark
or by writing “I don’t understand” and informed them that the
trial court and counsel would question them about any
difficulties they had filling out the questionnaire. Before
prospective jurors filled out the questionnaire, the trial court
orally advised them to mark the questionnaire when they did
not understand something or wanted to answer in a confidential
manner, provided them a written summary of the charges,
explained trial court procedures for death penalty cases in
California and the jury’s role in determining the penalty, and
verbally reiterated that the charges included the murder of
children.
For oral voir dire, the trial court required the parties to
submit any proposed followup questions in writing, and the trial
court then determined whether to include them in the oral
examination. The court did not intend to question prospective
jurors about their views on the death penalty when no basis for
disqualification appeared in their questionnaires.
The trial court identified for individual questioning
prospective jurors whose questionnaire answers appeared
facially disqualifying or raised questions about death
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Opinion of the Court by Cantil-Sakauye, C. J.
qualification. Defense counsel identified additional prospective
jurors for questioning based on their questionnaires. The trial
court then individually questioned these prospective jurors in
the jury box. The defense participated in questioning a majority
of the prospective jurors, though there were some for whom the
court completed questioning without defense input, and others
the defense did not question, although offered an opportunity to
do so.
During selection of the sitting jury, the trial court excused
nine prospective jurors for cause based on their views about the
death penalty, five who would always vote for the death penalty,
and four who would always vote against it. The court also
excused some prospective alternate jurors for cause, and no
alternate jurors ultimately deliberated in defendant’s trial.3
The defense used 13 of its 20 peremptory challenges.
2. Analysis
Prospective jurors are disqualified from serving on a
capital jury when their views about capital punishment would
prevent or substantially impair the performance of their duties
in accordance with their instructions and oath. (Wainwright v.
Witt (1985) 469 U.S. 412, 424 (Witt).) This standard does not
require bias to be “ ‘unmistakably clear’ ” and is met when “the
trial judge is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the
law.” (Id. at pp. 425–426.) A trial court’s ruling in this regard
is entitled to deference given its ability to consider demeanor, “a
3
Any error in excluding a prospective alternate juror for his
or her views on capital punishment is harmless beyond a
reasonable doubt when no alternate juror participates in jury
deliberations. (People v. Jones (2012) 54 Cal.4th 1, 44–45.)
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factor of critical importance in assessing the attitude and
qualifications of potential jurors.” (Uttecht v. Brown (2007) 551
U.S. 1, 9.)
Under the two-part inquiry of Lockhart v. McCree (1986)
476 U.S. 162, it is important to consider not only whether a
prospective juror’s views on capital punishment would
“generally lead to an automatic vote, one way or the other,” but
also “the possibility that such a juror might be able to set aside
those views and fairly consider both sentencing alternatives, as
the law requires.” (People v. Leon (2015) 61 Cal.4th 569, 592
(Leon); see also Lockhart, at p. 176.) “A juror might find it very
difficult to vote to impose the death penalty, and yet such a
juror’s performance still would not be substantially impaired
under Witt, unless he or she were unwilling or unable to follow
the trial court’s instructions.” (People v. Stewart (2004)
33 Cal.4th 425, 447, italics omitted; People v. Armstrong (2019)
6 Cal.5th 735, 764.)
To ensure meaningful and reliable death-qualifying voir
dire, “both the [trial] court and counsel ‘must have sufficient
information regarding the prospective juror’s state of mind,’. . .
[citation],” though the trial court retains “broad discretion over
the number and nature of questions about the death penalty.”
(People v. Stitely (2005) 35 Cal.4th 514, 540; see also People v.
Amezcua and Flores (2019) 6 Cal.5th 886, 901.) Ultimately,
death-qualification voir dire “must not be so abstract that it fails
to identify those jurors whose death penalty views would
prevent or substantially impair the performance of their duties
as jurors in the case being tried” and “it must not be so specific
that it requires the prospective jurors to prejudge the penalty
issue based on a summary of the mitigating and aggravating
evidence likely to be presented.” (People v. Cash (2002)
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28 Cal.4th 703, 721–722.) In striking this balance, the trial
court may not categorically deny the defense an opportunity to
inform prospective jurors of case-specific factors that could
invariably cause them to vote for death. (People v. Carasi (2008)
44 Cal.4th 1263, 1287 (Carasi); Cash, at p. 721.) Unless voir
dire is so inadequate as to render the ensuing trial
fundamentally unfair, it is not a basis for reversal. (People v.
Salazar (2016) 63 Cal.4th 214, 235.)
a. Adequacy of the juror questionnaire
Defendant claims the questionnaire should have included
specific inquiries about the impact of young victims on
prospective jurors’ decisionmaking and more questions about
the death penalty in general. She also argues that the questions
posed were too confusing to uncover bias.
Preliminarily, the People argue that defense counsel’s
willingness to do away with or significantly limit use of a jury
questionnaire at trial constitutes invited error. Although
defense counsel did agree to dispose of the questionnaire, the
trial court rejected this approach and proceeded to create a
questionnaire with the input of both parties. The record
therefore does not establish that “ ‘defense counsel intentionally
caused the trial court to err,’ ” and no invited error appears.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
The People also contend that defendant forfeited claimed
inadequacies in the jury questionnaire by failing to object to
them. Defendant argues that the defense continued objecting to
the questionnaire and attempted to question jurors about the
effect of young victims on their decisionmaking. In this context,
defense counsel’s concession to using the questionnaire after his
efforts to limit and amend it failed does not forfeit defendant’s
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claim that the trial court erred in omitting proposed defense
questions. (People v. Landry (2016) 2 Cal.5th 52, 83.)
A trial court’s discretion regarding the scope of voir dire
extends to the wording of the questionnaire. (Leon, supra,
61 Cal.4th at p. 586.) Here, “[w]here the court exercises its
discretion to exclude certain questions from the questionnaire,
we will affirm unless the voir dire was so inadequate that the
resulting trial was fundamentally unfair.” (Ibid.) We find no
such inadequacy. The final questionnaire conveyed sufficient
case-specific information, twice instructing prospective jurors to
consider the number and age of the victims when answering
death-qualification questions — facts the trial court also
highlighted in oral instructions regarding the questionnaire.
After receiving these case-specific factors before death
qualification, it is “logical to assume” that when prospective
jurors are asked whether they would automatically vote for life
or death, “they have answered the question with those case-
specific factors in mind.” (Carasi, supra, 44 Cal.4th at p. 1287;
see also Leon, at p. 587.)
Defendant argues that the questionnaire did not elicit
sufficient information about death qualification, comparing the
number and types of questions in her questionnaire to more
extensive model questioning endorsed by the Judicial Council
after defendant’s trial. In People v. Covarrubias (2016) 1 Cal.5th
838, we addressed challenges to excusals for cause based on
written questions that were identical to question Nos. 66
through 69 on defendant’s jury questionnaire. (Id. at pp. 861–
862.) There, we determined that the trial court’s handling of
ambiguous responses to the questions was error but recognized
that the questions themselves “called for responses that could
adequately inform the trial court whether a prospective juror
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was substantially impaired within the meaning of Witt.” (Id. at
p. 864.) Although subsequent formulations may have expanded
upon these questions, we accept, as we did in Covarrubias, that
they were adequate for assessing prospective jurors’ views about
the death penalty.
Defendant also contends that the death qualification
questions were “practically unintelligible,” citing problems such
as compound questions, confusing language, and “legalese”
above the education level of most prospective jurors. The People
are correct that defendant did not object to the wording of
questions as compound or confusing, and any claimed
inadequacies on that basis have thus been forfeited. Even if
preserved, the claim would not establish error.
Defendant cites United States v. Littlejohn (D.C. Cir. 2007)
489 F.3d 1335, 1341–1342, and Cabe v. Superior Court (1998)
63 Cal.App.4th 732, 742, in support of her argument that the
questionnaire was confusing; however, problems with compound
questions addressed in those cases were not present in
defendant’s questionnaire.
Defendant also points to prospective jurors who left death-
qualification questions blank or could not answer questions as
an indication that the questionnaire must have caused
confusion. The examples defendant cites are unconvincing.
Some of the prospective jurors who failed to answer death-
penalty questions had trouble throughout the questionnaire,
reflecting a broader difficulty not specific to the death-
qualification questions. One prospective juror who left some
questions blank responded to other, more complex, questions to
indicate that she would automatically vote for the death
penalty, a position she reiterated in oral voir dire. Another
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prospective juror did not answer questions “yes” or “no” as
prompted but gave narrative responses reflecting her
uncertainty. The record thus reflects difficulties that, “ ‘ “[g]iven
the juror’s probable unfamiliarity with the complexity of the
law, coupled with the stress and anxiety of being a prospective
juror in a capital case, . . . should be expected.” ’ ” (People v.
Wilson (2008) 44 Cal.4th 758, 779.)
The questionnaire also accounted for the fact that some
prospective jurors might find it confusing and instructed them
to mark questions they did not understand so that the trial court
and counsel could address them in individual voir dire. The
record shows that whether marked or not, the trial court
individually questioned prospective jurors about missing,
incomplete, or equivocal responses, an appropriate approach to
an adequate voir dire. (People v. Robinson (2005) 37 Cal.4th
592, 618.)
Defendant also asserts that the wording of question
No. 67, which asked whether prospective jurors would
“automatically vote for a penalty of death, without considering
any of the evidence,” was inadequate to identify unqualified,
death-oriented jurors. Defendant argues that the disqualifying
condition in question No. 67 — voting without “considering”
evidence — was more stringent than the appropriate standard
of automatically voting “regardless of” the evidence. This claim
of deficiency is not persuasive.
The standard enunciated in Witt recognizes that “[a] juror
who will automatically vote for the death penalty in every case
will fail in good faith to consider the evidence of aggravating and
mitigating circumstances as the instructions require him to do.”
(Morgan v. Illinois (1992) 504 U.S. 719, 729, italics added.)
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Although the wording used in defendant’s questionnaire is
consistent with this standard, and past model juror
questionnaires in California have relied on the same phrase
(People v. Stewart, supra, 33 Cal.4th at p. 447, fn. 12), the high
court has also explained that “[r]elevant voir dire questions
addressed to [death qualification] need not be framed
exclusively” by reference to “a particular verb” (Witt, supra, 469
U.S. at pp. 433–434). The trial court’s questionnaire here
adequately reflected the proper standard.
b. Adequacy of oral voir dire
Defendant contends that the trial court’s “rushed” voir
dire denied the defense an opportunity to learn about
prospective jurors’ potential biases, prevented the selection of
an impartial jury, and resulted in an inadequate record
concerning the ensuing grant or denial of challenges for cause.
Defendant also contends the trial court erred by denying defense
efforts to ask direct questions about whether prospective jurors’
ability to vote for a life or death sentence would be affected by
crimes involving a mother’s murder of her four children. We
reject these claims.
As evidence of a generally “cursory” voir dire, defendant
points to the length of death qualification, which took somewhat
less than two days. We have determined that death
qualification lasting “approximately three hours and 20
minutes” was not “unduly rapid or otherwise improper” where
the record showed that the trial court was “merely efficient.”
(People v. Robinson, supra, 37 Cal.4th at p. 618.) Nothing in the
length of the death qualification of defendant’s jury, standing
alone, points to inadequate voir dire.
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Defendant asserts the trial court’s limitations on defense
questioning during voir dire prevented adequate examination of
prospective jurors’ views. In one instance defendant cites, the
trial court found Prospective Juror No. 7166’s written answers
concerning the death penalty questions sufficient for death
qualification where he responded unequivocally that he would
not automatically vote for life or death, his other answers were
not disqualifying, and his only written remark was that the
“punishment should fit the crime.” The court denied defense
counsel’s request to ask the prospective juror whether the
nature of the crimes in defendant’s case would cause him to
automatically vote for the death penalty.
We have observed that “parsimony in death qualification
voir dire is not commendable.” (Leon, supra, 61 Cal.4th at
p. 589; see also People v. Cash, supra, 28 Cal.4th at p. 721.)4
Recognizing, however, that “the trial court has broad discretion
over the number and nature of questions about the death
penalty,” we have found no error where courts have relied
heavily on general questions tracking death qualification
standards and when “the court and/or counsel asked additional
questions to clarify ambiguous responses.” (People v. Stitely,
supra, 35 Cal.4th at p. 540.) Here, the prospective juror’s
responses to adequate written questions were not ambiguous
and the questionnaire twice instructed him to consider the
4
At the time of defendant’s trial, Code of Civil Procedure
former section 223 dictated voir dire be conducted by the trial
court, with supplemental questioning from the parties allowed
upon a showing of good cause; later amendments to the statute
allowed “each party an expanded but not unlimited right to
examine prospective jurors through direct oral questioning.”
(People v. Salazar, supra, 63 Cal.4th at p. 233, fn. 10.)
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nature of the charged crimes when answering. The trial court
did not abuse its discretion by declining to repeat questions in
oral voir dire that had already been answered. “Counsel are
entitled to ascertain a prospective juror’s true views on the
death penalty. Once those views have been made clear, the
court is not obliged to question them further.” (People v.
Salazar, supra, 63 Cal.4th at p. 236.)
Defendant claims the trial court also prevented adequate
voir dire of Prospective Juror Nos. 3801 and 8318, who gave
equivocal answers. Defendant relies on United States v.
Gonzalez (9th Cir. 2000) 214 F.3d 1109, 1114, to support her
argument that equivocal answers are not sufficient to dispel
potential bias. This federal decision is not binding on us and
does not relate to death qualification; it addressed standards for
reviewing bias in a non-capital case under circumstances not
present here.
A trial court’s ruling on a prospective juror’s death
qualification “ ‘may be upheld even in the absence of clear
statements from the juror that he or she is impaired because
“many veniremen simply cannot be asked enough questions to
reach the point where their bias has been made ‘unmistakably
clear.’ ” ’ ” (People v. Wilson, supra, 44 Cal.4th at p. 779.)
“ ‘ “ ‘On review, if the juror’s statements are equivocal or
conflicting, the trial court’s determination of the juror’s state of
mind is binding.’ ” ’ ” (People v. Winbush (2017) 2 Cal.5th 402,
429; see id. at pp. 427–428.) The trial court did not limit defense
questioning of Prospective Juror No. 8318, who indicated that
she would have difficulty imposing the death penalty. The trial
court also allowed defense questioning of Prospective Juror
No. 3801, who was not sure she could consider a life sentence
but would “try.” We find the trial court’s voir dire in these
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instances adequate and defer to its determination of the
prospective jurors’ qualifications, as we must.
Finally, defendant argues that voir dire was inadequate
because the trial court was unwilling to allow additional oral
questioning regarding prospective jurors’ views in light of the
number and age of the victims. We reject this claim. The trial
court orally advised prospective jurors of the number and age of
the victims and the questionnaire itself prominently conveyed
that information. Accordingly, the court could properly assume
the jurors had those factors in mind when asked, either orally
or in writing, whether they would automatically vote for life or
death. (Carasi, supra, 44 Cal.4th at p. 1287.)
The record demonstrates that voir dire in defendant’s case
was not so cursory that it constituted an abuse of discretion or
deprived her of a fundamentally fair trial. The trial court
properly “err[ed] on the side of caution” to question prospective
jurors whose responses to the written questionnaire were
ambiguous or potentially disqualifying. (People v. Wilson,
supra, 44 Cal.4th at p. 790.)
B. Guilt Phase Issues
1. Access to impeachment evidence
Defendant contends the trial court erred by refusing to
enforce defense subpoenas for records and witnesses related to
her son’s statements and mental health following the fire. She
argues the trial court’s errors violated Evidence Code section
912, as well as her Sixth and Fourteenth Amendment rights.
We conclude there was no error.
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Opinion of the Court by Cantil-Sakauye, C. J.
a. Background
Before trial, defendant issued subpoenas for F.D.’s mental
health records to a Dr. Jacobs, and to county social workers who
interviewed F.D. and his father after the fire.
During a hearing in which he asserted F.D.’s privilege to
prevent disclosure of records from Dr. Jacobs, Fernando Nieves
testified that he took F.D. and other family members to the
doctor for therapy following the deaths of F.D.’s sisters. When
defendant petitioned to have F.D. removed from Fernando’s
custody, Dr. Jacobs wrote a letter to the dependency court on
behalf of Fernando; the letter provided brief observations about
F.D.’s adjustment to living with Fernando’s family and noted
F.D.’s desire remain with them. By the time of defendant’s trial,
Fernando had been named F.D.’s legal guardian.
The trial court rejected defendant’s argument that
Fernando waived F.D.’s psychotherapist-patient privilege by
having Dr. Jacobs submit a letter to the dependency court and
found no defense interests sufficient to override the privilege.
F.D. later testified in the prosecution’s case-in-chief and was
excused subject to recall.
When counsel for the social workers appeared to oppose
defense counsel’s subpoena for their records, the trial court
ruled that section 827 of the Welfare and Institutions Code
required defendant to petition the juvenile court for access to the
records. The defense filed a petition with the juvenile court a
few days later. When the social workers later responded to
subpoenas to testify for the defense, they again asserted state
confidentiality protections. Defense counsel provided the trial
court with a copy of the social workers’ report but declined to
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Opinion of the Court by Cantil-Sakauye, C. J.
elaborate on how their testimony was relevant, and the trial
court sustained the claims of confidentiality.
Later in the trial, defense counsel announced that the
juvenile court had granted his petition for access to records from
the social workers and Dr. Jacobs. When the defense sought to
impeach the rebuttal testimony of Fernando Nieves with
statements from the social workers’ report, the trial court
sustained the prosecution objection that the witness’ prior
statements could not be used because they did not qualify as
inconsistent statements.
b. Analysis
A patient has a privilege to refuse to disclose, and to
prevent another from disclosing, a confidential communication
between the patient and his or her psychotherapist. (Evid.
Code, §§ 1014, 1012.) Waiver of the privilege occurs when the
holder of the privilege has disclosed a significant part of the
communication or consented to disclosure. (Evid. Code, § 912,
subd. (a).) The “ ‘holder of the privilege’ ” is the patient, or a
guardian or conservator of the patient. (Evid. Code, § 1013.)
A person invoking the psychotherapist-patient privilege has the
initial burden of showing that the privilege is presumptively
applicable. The burden then shifts to the party seeking
disclosure to establish that the privilege is inapplicable. (People
v. Gonzales (2013) 56 Cal.4th 353, 372.) The psychotherapist-
patient privilege is to be liberally construed in favor of the
patient. (People v. Wharton (1991) 53 Cal.3d 522, 554.)
Section 827 of the Welfare and Institutions Code contains
protections concerning the confidentiality of juvenile records,
whether or not they are covered by other state or federal
privileges, and vests the juvenile court with exclusive authority
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to determine the extent to which those records may be released
to third parties. (Welf. & Inst. Code, § 827; T.N.G. v. Superior
Court (1971) 4 Cal.3d 767, 778.)
When a defendant proposes to impeach a critical
prosecution witness with privileged information, the trial court
may be called upon to balance the defendant’s rights under the
Sixth Amendment to access such material at trial against the
state policies supporting the privilege. (Davis v. Alaska (1974)
415 U.S. 308, 319; People v. Hammon (1997) 15 Cal.4th 1117,
1127 (Hammon).) In Hammon, we concluded that a Sixth
Amendment right to access protected information does not
extend to pretrial disclosure, given the possibility that
subsequent developments may eliminate the justification for
invading a patient’s statutory privilege. (Ibid.)
Defendant concedes that the Sixth Amendment does not
confer a right to discover privileged psychiatric records before
trial. (Hammon, supra, 15 Cal.4th at p. 1128.) She argues
instead that F.D.’s father waived the privilege for family
therapy records when he asked Dr. Jacobs to submit a letter in
connection with dependency proceedings. The trial court did not
err in sustaining the psychotherapist-patient privilege with
regard to these records.
The letter from Dr. Jacobs to the dependency court did not
disclose a “significant part” of communications between F.D.
and his doctors that would constitute waiver. (Evid. Code, § 912,
subd. (a).) But even if there had been a significant disclosure of
protected communications, we would not conclude on this record
that F.D. or his legal guardian consented to it. When, as here,
a guardian ad litem is required for dependency proceedings (In
re Josiah Z. (2005) 36 Cal.4th 664, 679), we would not assume
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Opinion of the Court by Cantil-Sakauye, C. J.
that Fernando Nieves, or defendant, could legally waive the
psychotherapist-patient privilege during their custody dispute
(see In re Cole C. (2009) 174 Cal.App.4th 900, 911, fn. 3), and
disclosure by Dr. Jacobs did not otherwise constitute waiver
(Roberts v. Superior Court (1973) 9 Cal.3d 330, 341).
Defendant contends the trial court violated her Sixth
Amendment and due process rights by preventing her from
impeaching F.D. with records or testimony from the social
workers. Defendant failed to preserve these constitutional
claims. They also lack merit.
Defendant argues that the trial court should have
reviewed the social workers’ records to determine their
materiality to the defense, citing Pennsylvania v. Ritchie (1987)
480 U.S. 39, 58–60 and People v. Webb (1993) 6 Cal. 4th 494,
517. In Webb, we recognized that due process requires the
government to provide a defendant with material exculpatory
evidence in its possession even when it is subject to a state
privacy privilege. (Id. at p. 518.) Those principles do not apply
here, however, where defendant already had the social workers’
report. We discern no error in the trial court’s ruling “when
defendant made no offer of proof at trial explaining why the
witness[es] should have been permitted to [testify].” (People v.
Lightsey (2012) 54 Cal.4th 668, 727, fn. omitted; see also Evid.
Code, § 354 (a); People v. Case (2018) 5 Cal.5th 1, 44–45.)
Defendant argues that the trial court continued to sustain
confidentiality protections after the juvenile court granted
defendant’s petition for disclosure of the social workers’ report,
denying her the opportunity to introduce impeachment
evidence. The record does not bear this out. After the juvenile
court’s ruling, defendant did not try to use the report to impeach
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F.D. at all, though he was still subject to recall. (People v.
Johnson (2018) 6 Cal.5th 541, 583 [inconsistent out-of-court
statement admissible when witness is subject to recall].) The
defense did attempt to use the report to impeach Fernando
Nieves, but rather than resolving that effort based on
confidentiality protections, the trial court ruled that the prior
statements were not inconsistent.
We also reject defendant’s claim that the trial court erred
by allowing the prosecution to address questions of privilege
related to F.D.’s records. We have held that a trial court may
entertain argument from the opposing party on third party
discovery and that a prosecutor’s submission of argument in
such a matter — as occurred in defendant’s trial — is not
improper. (People v. Superior Court (Humberto S.) (2008)
43 Cal.4th 737, 750–754; see also Facebook, Inc. v. Superior
Court (Touchstone) (2020) 10 Cal.5th 329, 358 [reiterating
legitimate role of prosecution concerning third party discovery
disputes].)
Defendant argues that, as a witness for the prosecution,
Fernando Nieves had a conflict of interest that should have
disqualified him from asserting a privilege on behalf of F.D.
Defendant did not raise this issue at trial and thus forfeits it on
appeal. Defendant also argues that she should have been
granted access to F.D.’s records based on her status as his
parent. (Fam. Code, § 3025 [non-custodial parents may access
minor child’s records].) We have no need to examine this claim
when the record shows that defendant either obtained the
records she sought or was entitled to access them by order of the
juvenile court.
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Opinion of the Court by Cantil-Sakauye, C. J.
2. Compelled psychological testing of defendant
Defendant contends the trial court erred by requiring her
to submit to psychological examination by prosecution experts
and rejecting her request to have a defense expert attend that
examination. Defendant argues that after she declined to
submit to the examination, the trial court further erred by
instructing the jury concerning her refusal and by allowing the
prosecution to comment on it. We reject each of these claims.
a. Background
Before trial, the defense conducted evaluations of
defendant and provided the prosecution with reports from six
defense experts. The trial court executed orders pursuant to
Evidence Code section 730 authorizing the appointment of four
prosecution experts to interview defendant, analyze test results
from defense experts, and provide other assistance to the
prosecution.
When the parties addressed defendant’s examination by
prosecution experts, defendant agreed to submit to the
examinations provided that a defense expert could be present to
observe them. The trial court held a hearing to address the
implications of having a defense representative present during
prosecution interviews and concluded that such presence would
be unnecessary, inappropriate, and might invalidate
prosecution expert results.
Defense counsel did not object to the examination by
prosecution experts but continued to argue for the presence of a
defense expert. The trial court reiterated its order that
defendant was required to submit to interviews without defense
monitoring at those interviews and ultimately found that the
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Opinion of the Court by Cantil-Sakauye, C. J.
continued defense objections constituted a refusal by defendant
to be examined.
The prosecution later proposed an instruction regarding
defendant’s refusal: if jurors found defendant had refused to
submit to prosecution examinations, they could consider that as
consciousness of any required mental state. The trial court said
that if the prosecution wanted such an instruction, the jury
would need to hear evidence of refusal, which could be
established through testifying witnesses.
Over objections, a prosecution expert testified that he had
been told that defendant refused to be evaluated by him. On
cross-examination, the defense attempted to ask the expert
whether he would have any concerns about the conditions
defendant requested for examination by a prosecution expert.
The trial court sustained objections to this questioning and
admonished the jury: “I am going to tell the jury at this point
that the defendant — when the defendant submits their mental
state as an issue in the case, the defendant must submit to
examination by the prosecution experts without any conditions.
That was not forthcoming this this case.” Two more prosecution
experts then testified that defendant refused their requests for
an examination.
Ultimately, the trial court rejected instructions submitted
by the defense and prosecution seeking to address defendant’s
response to examinations by prosecution experts and concluded
that the issue was a matter for argument to the jury. During
closing argument, the prosecution repeated the court’s
comments that defendant was required to submit to
examination by prosecution experts and, without objection,
argued that her refusal could be viewed as an attempt to
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suppress or conceal evidence, affect the weight given to defense
expert opinions, and undermine the validity of defense claims.
b. Analysis
In Verdin v. Superior Court (2008) 43 Cal.4th 1096(Verdin), we held that courts may not compel a defendant’s
mental examination by a prosecution expert unless “authorized
by some . . . ‘express statutory provision[]’ (§1054, subd. (e).)”
(Id. at p. 1109.) This ruling applies retroactively to defendant’s
trial in 2000. (People v. Clark (2011) 52 Cal.4th 856, 939.) “We
have made clear that even in cases governed by Verdin, trial
courts had the power to order defendants to submit to a
psychological examination by a court-appointed expert pursuant
to Evidence Code section 730.” (People v. Banks (2014)
59 Cal.4th 1113, 1193, italics omitted.)
Defendant claims the trial court did not have authority
under Penal Code section 1054 to order her examination by
prosecution experts. The record shows, however, that the trial
court exercised its authority under Evidence Code section 730,
an appropriate basis for compelling her psychological
examination. (People v. Banks, supra, 59 Cal.4th at p. 1193.)
Defendant insists the trial court also erred by requiring
her to submit to an “unconditional” examination, one without a
defense representative present. We have recognized that the
presence of defense counsel or other third parties during a court-
ordered psychological examination may invalidate its results (In
re Spencer (1965) 63 Cal.2d 400, 411; Edwards v. Superior Court
(1976) 16 Cal.3d 905, 911) and have concluded that the presence
of counsel at such an examination is not constitutionally
required (In re Spencer, at p. 412; People v. Ledesma (2006)
39 Cal.4th 641, 698 (Ledesma)). The trial court therefore did not
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Opinion of the Court by Cantil-Sakauye, C. J.
abuse its discretion by rejecting defendant’s request to have a
defense expert present.
We also reject defendant’s argument that the trial court’s
admonition and the prosecutors’ arguments violated her
constitutional rights and her rights under Evidence Code
section 913.5 Once defendant placed her mental state at issue,
she waived her Fifth and Sixth Amendment rights to object to
the prosecution examinations. (People v. Gonzales (2011)
51 Cal.4th 894, 929.) Subsequent testimony about defendant’s
refusal to cooperate did not violate those rights (People v.
McPeters (1992) 2 Cal.4th 1148, 1190), and the jury could
properly consider the refusal (People v. Carpenter (1997)
15 Cal.4th 312, 413).
Defendant argues the trial court erred by failing to
instruct the jury that her refusal was insufficient to establish
guilt, and that this had the effect of lessening the prosecution’s
burden. Defendant forfeited this claim by failing to request a
clarifying instruction at trial (People v. Guerra (2006) 37 Cal.4th
1067, 1134), but it would nonetheless fail on the merits. The
trial court properly instructed the jury concerning the
reasonable doubt standard and there is no reasonable likelihood
the jury would have interpreted the trial court’s limited
comment to indicate that defendant’s refusal to submit to
examination was sufficient to prove her guilt. (Ibid.)
Defendant also claims that the trial court erred by
allowing the prosecution to reference defendant’s refusal during
5
Evidence Code section 913 provides that no comment can
be made or inference drawn from the invocation of a privilege
not to testify or to disclose any matter. (Evid. Code, § 913, subd.
(a).)
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Opinion of the Court by Cantil-Sakauye, C. J.
closing argument. This argument is forfeited by defendant’s
failure to object at trial (People v. Gamache (2010) 48 Cal.4th
347, 372), and in any event it lacks merit. The prosecutor
argued that evidence of defendant’s refusal was relevant to the
weight of defense expert testimony, a consideration we have
recognized as proper. (People v. Carpenter, supra, 15 Cal.4th at
p. 412.) Defendant cites no authority for her view that she did
not personally refuse to be examined, and she offers no reason
to dispel the general rule that absent complaint at trial, the acts
of her counsel are imputed to her. (People v. Marsden (1970)
2 Cal.3d 118, 125.)
3. Scope of expert testimony
Defendant contends the trial court imposed limitations on
mental health testimony by defense experts in violation of her
federal constitutional rights to a fair trial, to present a defense,
and to a reliable penalty determination. Specifically, she claims
the court erred by striking testimony by arson expert Del
Winter, precluding other experts from relying on hearsay
statements about her background, and sustaining objections to
testimony about her mental condition at the time of the fire
pursuant to Penal Code sections 28 and 29.6 We assume some
error only concerning the court’s mental state rulings but find it
harmless.
a. Background
The trial court struck a portion of testimony by defense
expert Del Winter, a retired fire investigator. Winter testified
6
Section 28 allows for the admission of evidence of mental
impairment related to whether the accused “actually formed” a
required mental state (§ 28, subd. (a)), but section 29 prohibits
expert testimony on that question (§ 29).
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Opinion of the Court by Cantil-Sakauye, C. J.
that the fire at defendant’s house was set in several places and
that a very small amount of gasoline was used. He found it odd
that the fire was set where it was not likely to cause significant
damage and the gas can was put back in its place after use. He
concluded that “the fire didn’t make a lot of sense.” Winter could
not recall a similar type of fire, stating, “This is pretty unusual.”
Addressing scorched items in the oven, Winter testified that
“[i]t’s just like the rest of this case. It just doesn’t make any
sense as far as logic.”
At the conclusion of his testimony, Winter identified
several classifications of arson, such as insurance fraud and
crime cover-up and a category he called “psycho fires,” in which
the motive for the fire is obscure. Although Winter was allowed
to opine over objection that defendant’s fire fell into the “psycho”
category, the next day the trial court revisited the ruling and
struck the testimony.
Addressing defendant’s mental health experts, the trial
court ruled that they would not be allowed to recount hearsay
statements during their testimony. The experts relied on
statements by defendant and her friends and family members
for information about her background, including anoxia (lack of
oxygen) at birth, epilepsy and hospitalization at an early age, a
difficult upbringing, and use of antidepressant and diet
medication shortly before the fire. The trial court determined
that the underlying statements and predicate facts did not
reflect indicia of reliability and would have to be established
through live witness testimony.
Following the court’s ruling, defendant testified
concerning details leading up to the fire, including her use of
diet medication and Zoloft after having an abortion. The defense
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also recalled defendant’s stepfather Albert Lucia to testify about
defendant’s childhood seizures and verbal and physical abuse by
her mother.
Dr. Humphrey then testified regarding defendant’s
background and possible traumas to her brain, stating that the
sources she considered to reach her opinion included interviews
with defendant and letters written by her, interviews with
Albert Lucia and defendant’s aunt, consultations with a non-
testifying expert (Dr. Kaser-Boyd), defense team members who
spoke to other witnesses, and records such as police reports and
prior assessments. The trial court sustained an objection to Dr.
Humphrey referencing defendant’s anoxia at birth, but Dr.
Humphrey went on to testify that defendant experienced other
risk factors consistent with brain damage early in life: being hit
hard in the head by her mother several times a day; an incident
at age 18 months that Dr. Humphrey interpreted as consistent
with seizure disorder; and fainting after the seizure incident
consistent with brain malfunction.
Dr. Ney conducted two examinations of defendant. He
testified that he relied on the examinations and interviews with
defendant, transcripts of witness testimony, reports by Drs.
Humphrey and Kaser-Boyd, police reports, statements by
defendant and her son to law enforcement, and statements from
defendant’s friends. Although the defense argued that Dr. Ney
should be allowed to explain defendant’s statements to him, the
trial court reiterated its prior ruling that experts would not be
allowed to repeat inadmissible hearsay.
During Dr. Ney’s testimony, the trial court also sustained
numerous objections under section 29. Dr. Ney testified that he
considered the possibility that defendant was trying to commit
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Opinion of the Court by Cantil-Sakauye, C. J.
suicide on the night of the fire. The trial court sustained section
29 objections to several additional questions on this topic and
struck an answer in which Dr. Ney began to testify that he found
defendant’s actions consistent with suicide. The court overruled
a section 29 objection concerning whether defendant “was in a
depressive state” at the time of the fire but sustained section 29
objections to questions about whether she experienced a seizure,
serotonin syndrome, or dissociative state at the time of the fire
and to questions regarding defendant’s general mental condition
at the time of the fire. The court also struck Dr. Ney’s comment
that “it’s quite apparent that this was an organically determined
dissociative state.”
Despite these rulings, Dr. Ney testified about factors
affecting defendant at the time of the fire and his opinion that
they could have induced a seizure and related dissociation that
would render a person effectively unconscious. Dr. Ney testified
that defendant heard a roaring on the night of the fire, which he
interpreted as an epileptic “aura” preceding a seizure.
On surrebuttal, when Dr. Plotkin testified concerning
defendant’s increased risk for experiencing seizures and
delirium, the court sustained a section 29 objection to defense
counsel’s question that began by asking Dr. Plotkin to assume
that someone was in a dissociative state when lighting the fire.
b. Analysis
i. Arson expert
Defendant claims that the trial court’s decision to strike
Del Winter’s opinion about a “psycho” fire was erroneous under
sections 28 and 29, and that it was improper for the court to
make the ruling on its own motion. The trial court had broad
discretion to determine the relevance of the testimony and
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Opinion of the Court by Cantil-Sakauye, C. J.
assess whether it was unduly misleading under Evidence Code
section 352. (People v. Sanchez (2019) 7 Cal.5th 14, 54.) The
trial court could also properly limit questions and interpose its
own objections under Penal Code section 1044, which outlines a
judge’s duty to control trial proceedings and limit the
introduction of evidence to relevant and material matters.
(People v. Sturm (2006) 37 Cal.4th 1218, 1241 (Sturm).)
The trial court was well within its discretion to exclude
Winter’s opinion as misleading and irrelevant. We found no
abuse of discretion when, as here, the trial court excluded as
irrelevant mental state testimony offered by a detective “who
was not a psychologist or a psychiatrist, was not qualified to
render an opinion as to whether defendant suffered from a
mental illness at the time [of the crime,]” and was not “qualified
to testify generally about the relationship between mental
illness and certain types of behavior.” (People v. Vieira (2005)
35 Cal.4th 264, 292.) Winter was similarly unqualified to
suggest that the person who set the fire in defendant’s home was
mentally unwell, or “psycho.”
Instructing the jury to disregard Winter’s “psycho” label
did not undercut the defense claim that the motive behind the
fire was mysterious or missing, as defendant contends. Winter
testified that the fire in defendant’s case was intentionally but
poorly set, unusual, and did not make sense. The trial court’s
limited instruction to disregard the reference to a “psycho” fire,
which Winter had added to those attributes, was not error.
ii. Expert reliance on hearsay statements
When an expert testifies concerning case-specific out-of-
court statements to explain the bases for his or her opinion,
those statements must be properly admitted through an
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applicable hearsay exception or admitted through an
appropriate witness and presented to the expert through a
properly worded hypothetical question. (People v. Sanchez
(2016) 63 Cal.4th 665, 684.) In Sanchez, we disapproved of the
conclusion in prior decisions such as People v. Gardeley (1996)
14 Cal.4th 605, 618, that expert testimony about case-specific
hearsay is not admitted for its truth and thus not subject to
hearsay rules. (Sanchez, at p. 686, fn. 13.) Gardeley nonetheless
correctly reflected the fundamental rule that “any material that
forms the basis of an expert’s opinion testimony must be
reliable” (Gardeley, at p. 618) and recognized that a trial court
“ ‘has considerable discretion to control the form in which the
expert is questioned to prevent the jury from learning of
incompetent hearsay.’ ” (id. at p. 619).
Defendant contends the trial court’s rulings prevented
defense experts Drs. Humphrey and Ney from relying on
hearsay statements that described defendant’s background —
an essential element of her mental state defense. Drs.
Humphrey and Ney both testified, however, that they relied on
a variety of out-of-court statements in reaching their opinions.
Dr. Humphrey testified about specific background and risk
factors she identified from those sources and Dr. Ney testified
that defendant’s history and symptoms fit the diagnoses
underlying the defense.
What the trial court did limit was testimony regarding
specific hearsay it found unreliable, such as defendant’s post-
arrest statements about her own background and medication
use. This was well within the court’s discretion. (Evid. Code,
§ 1252; People v. Jurado (2006) 38 Cal.4th 72, 129–130.)
Defendant also contends the trial court’s rulings prevented Dr.
Kaser-Boyd from testifying at all, but the trial court did not rule
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Opinion of the Court by Cantil-Sakauye, C. J.
on the admissibility of her testimony and there is no evidence in
the record to indicate why — among many possible reasons —
the defense decided not to call her.
iii. Mental state testimony
Penal Code sections 28 and 29 “permit introduction of
evidence of mental illness when relevant to whether a defendant
actually formed a mental state that is an element of a charged
offense, but do not permit an expert to offer an opinion on
whether a defendant had the mental capacity to form a specific
mental state or whether the defendant actually harbored such a
mental state.” (People v. Coddington (2000) 23 Cal.4th 529,
582.) Under these sections, an expert may testify to establish
“defendant’s mental disorders at the time of the commission of
the crimes” and “whether the defendant’s conduct in committing
the crimes was consistent with the expert’s diagnosis of the
defendant’s mental condition.” (People v. Samayoa (1997) 15
Cal.4th 795, 836–837.) Thus, for example, “[a]n expert’s opinion
that a form of mental illness can lead to impulsive behavior is
relevant to the existence vel non of the mental states of
premeditation and deliberation.” (Coddington, at pp. 582–583.)
Defendant argues the trial court erred by limiting
questioning of Drs. Ney and Plotkin that would have allowed the
jury to infer that defendant did not premeditate or deliberate
murder. She also asserts the conditions at issue — serotonin
syndrome, a dissociative state, and epilepsy — are not mental
diseases, defects, or disorders within the scope of section 29
limitations. Defendant did not raise her contention about the
scope of section 29 at trial, where she successfully argued that
all of her conditions were mental disorders that the jury should
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Opinion of the Court by Cantil-Sakauye, C. J.
consider in determining required mental states. This aspect of
defendant’s claim is therefore forfeited.
We need not decide whether all the trial court’s limitations
on defense questioning under section 29 were justified because
any error was harmless. Defendant claims the trial court
“eviscerated the defense” by preventing Drs. Ney and Plotkin
from testifying about the psychological and medical factors
affecting her at the time of the crimes, but the record reveals
otherwise.
Although the trial court struck Dr. Ney’s opinion that
defendant was suicidal, defense experts were otherwise able to
testify concerning the substance of what defendant sought to
present. Dr. Ney testified that defendant was likely
experiencing a combination of factors — depression, hormonal
changes, serotonin syndrome caused by diet and antidepressant
drug interactions, and seizure activity — that induced a
dissociative state on the night of the fire. Dr. Plotkin testified
that these factors would have caused delirium, a condition
distinct from dissociation, and provided additional medical
evidence of a seizure close to the time of the fire. Both experts
testified that such factors could cause a person to be unconscious
or semi-conscious while engaged in complex-seeming behavior.
Dr. Ney’s opinion that defendant was suicidal not only
conflicted with evidence defendant presented from several other
witnesses that she was not considering suicide, but it also
supported the prosecution theory that defendant had a suicidal
plan to kill herself and her children to spite her ex-husbands
and boyfriend. Precluding defense questioning on this topic, and
limiting questioning about defendant’s other conditions, did not
prejudice the defense.
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4. PET scan evidence
Defendant contends the trial court erred by excluding
evidence of her positron emission topography (PET) scan.7
Although the trial court erred in ruling PET scan evidence
inadmissible under the Kelly rule,8 the court also excluded the
PET scan evidence as irrelevant and misleading, a conclusion
that was not an abuse of discretion.
a. Background
Dr. Michael Gold conducted a neurological examination of
defendant. He reviewed her PET scan and determined it
showed impairment in some regions of her brain. Based on the
neuropsychological assessment by Dr. Humphrey, Dr. Gold
concluded that the impairments shown on the PET scan
predated defendant’s carbon monoxide poisoning and were
mostly likely related to a prior head trauma.
The prosecution orally requested a Kelly hearing on the
admissibility of PET scan evidence and the trial court granted
its request and set the hearing the following week to
accommodate a prosecution expert’s schedule. The trial court
dismissed defense counsel’s concern about the availability of
defense experts and rejected a subsequent defense motion to
7
We address post, in part II.C.1.b., defendant’s claims
regarding the exclusion of PET scan evidence in the penalty
phase.
8
Formerly known as the Kelly-Frye rule, based on the
rulings of People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v.
United States (D.C. Cir. 1923) 293 F. 1013, the rule is now the
Kelly rule in California after changes to the Federal Rules of
Evidence that superseded Frye. (People v. Bolden (2002) 29
Cal.4th 515, 545.)
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Opinion of the Court by Cantil-Sakauye, C. J.
either reconsider the need for a hearing or to continue the
hearing and allow the defense time to prepare for it.
After receiving a written motion from the prosecution a
few minutes before the Kelly hearing was to begin, defendant
asked the court to strike the last-minute motion or give the
defense an opportunity to review the cases it cited. In addition
to arguments to exclude the PET scan under Kelly, the
prosecution motion claimed the PET scan was irrelevant or
unduly prejudicial under Evidence Code section 352. The
prosecution also stated that several articles filed with the trial
court, which discussed hearings in California and other
jurisdictions challenging the use of PET scans, supported
exclusion of the evidence. The trial court determined that the
hearing would begin immediately, would be framed by the
prosecution motion, and would settle all issues regarding
admissibility of the proposed PET scan evidence.
The defense presented three experts, Dr. Gold, Dr. Arthur
Kowell, and Dr. Mark Mandelkern. They testified that PET
scans had been in use since the 1970s and were accepted in the
scientific community as a legitimate measure of brain function,
particularly for specific conditions such as temporal lobe
epilepsy.
Drs. Gold and Mandelkern found abnormalities in
defendant’s PET scan that were consistent with temporal lobe
epilepsy. The abnormal regions of her brain were responsible
for judgment, memory, and verbal functions, they affected the
way a person would act and interpret data, and they were
consistent with indications of defendant’s impairment shown by
neuropsychological testing. Although it was not possible to
determine when defendant’s brain was injured, the
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Opinion of the Court by Cantil-Sakauye, C. J.
abnormalities were consistent with defendant’s childhood
trauma and were not patterns that would occur from carbon
monoxide poisoning. Dr. Mandelkern testified that the PET
scan could not explain defendant’s functioning on the night of
the crimes or indicate whether she had seizures.
The prosecution presented testimony from Dr. Helen
Mayberg and Dr. Edwin Amos, who confirmed that PET scans
were used to identify temporal lobe epilepsy. They did not find
defendant’s PET scan consistent with epilepsy, however, and
questioned whether it showed any abnormality at all. Both
experts testified that defendant’s PET scan was presented in a
way that exaggerated abnormalities that might be trivial, thus
skewing the results. They explained that any abnormality on a
PET scan would not provide information about defendant’s past
behavior or events in defendant’s case.
The trial court concluded that the PET scan did not meet
the Kelly test, ruling that there was no substantial agreement
in the scientific community about its reliability for the uses
defendant intended. The trial court also found the evidence had
little if any relevance because it was highly speculative — there
was dispute whether the PET scan showed abnormality at all,
and, moreover, any perceived abnormality could not be linked to
any impact on defendant at the time of the crimes. The court
ruled that under Evidence Code section 352 any relevance was
outweighed by the undue consumption of time, confusion of the
issues for the jury, and undue prejudice.
Defendant moved for reconsideration, arguing that she did
not have time to prepare for the Kelly hearing nor notice that
the prosecution would argue that proper procedures for
administering and reading the PET scan were not followed. She
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Opinion of the Court by Cantil-Sakauye, C. J.
also reiterated arguments that the PET scan was admissible in
the guilt and penalty phases of her trial. The trial court denied
the motion for reconsideration for the guilt phase and deferred
a decision on admissibility for the penalty phase.
b. Analysis
Under the Kelly rule, “ ‘when faced with a novel method of
[scientific] proof, [we] have required a preliminary showing of
general acceptance of the new technique in the relevant
scientific community’ before the scientific evidence may be
admitted at trial.” (People v. Daveggio and Michaud (2018) 4
Cal.5th 790, 831, quoting Kelly, supra, 17 Cal.3d at p. 30.) Kelly
“renders inadmissible evidence derived from a ‘new scientific
technique’ unless the proponent shows that (1) ‘the technique is
generally accepted as reliable in the relevant scientific
community’; (2) ‘the witness testifying about the technique and
its application is a properly qualified expert on the subject’; and
(3) ‘the person performing the test in the particular case used
correct scientific procedures.’ ” (People v. Jackson (2016) 1
Cal.5th 269, 315–316.) The party offering the evidence has the
burden of proving its admissibility by a preponderance of the
evidence. (People v. Ashmus (1991) 54 Cal.3d 932, 970.) We
review de novo the trial court’s evaluation regarding whether a
new scientific technique is generally accepted as reliable in the
relevant scientific community. (Id. at 971.)
Defendant proposed using the PET scan to corroborate
defendant’s history of seizure disorder and related cognitive
impairment. At the Kelly hearing, expert testimony established
that PET scans had been used for decades to evaluate brain
abnormality, and defense and prosecution experts alike testified
that PET scans were widely accepted and reliable for identifying
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Opinion of the Court by Cantil-Sakauye, C. J.
brain abnormalities caused by temporal lobe epilepsy. That the
experts disagreed about whether defendant’s PET scan showed
such abnormality was a difference of opinion going to the weight
of the evidence, not to its admissibility. (People v. Fierro (1991)
1 Cal.4th 173, 214; People v. Jones (2013) 57 Cal.4th 899, 953.)
The People argue there was evidence that defense experts
did not use correct scientific procedures when manipulating the
PET scan images to highlight deficits. Yet prosecution expert
Dr. Mayberg testified that the type of manipulation seen in
defendant’s PET scan images was something radiologists did
“all the time.” The record does not support a finding that correct
scientific procedures were lacking.
Although the trial court erred in its ruling under Kelly, the
court did not abuse its discretion by excluding the PET scan
under Evidence Code section 352. The trial court retains
discretion to exclude even relevant evidence when its probative
value is substantially outweighed by the probability that its
admission will either necessitate undue consumption of time or
create substantial danger of undue prejudice, confusing the
issues, or misleading the jury. (People v. Young (2019) 7 Cal.5th
905, 931.) “We review a trial court’s decision to admit or exclude
evidence ‘for abuse of discretion, and [the ruling] will not be
disturbed unless there is a showing that the trial court acted in
an arbitrary, capricious, or absurd manner resulting in a
miscarriage of justice.’ ” (People v. Powell (2018) 5 Cal.5th 921,
951.) A trial court does not abuse its discretion by excluding
evidence that produces only speculative inferences. (People v.
Cornwell (2005) 37 Cal.4th 50, 81, disapproved on other grounds
in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
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In excluding evidence of the PET scan, the trial court
found it minimally relevant because it was highly speculative.
The court cited consensus among the experts that any abnormal
feature on the PET scan could not be linked to defendant’s
condition or actions at the time of the fire. After three days of
testimony from experts who disagreed about what, if anything,
defendant’s PET scan showed, it was not an abuse of discretion
for the trial court to determine that undue consumption of time
and confusion of issues for the jury outweighed what limited
relevance the PET scan might have.
Defendant claims exclusion of PET scan evidence violated
her right to present a defense. We have explained, however,
that “the ordinary rules of evidence, including the application of
Evidence Code section 352, do not infringe on the accused’s due
process right to present a defense.” (People v. Frye (1998)
18 Cal.4th 894, 948.) “ ‘Although we recognize that a criminal
defendant has a constitutional right to present all relevant
evidence of significant probative value in [her] favor
[citations], “. . . the proffered evidence must have more than
‘slight-relevancy’ to the issues presented.” ’ ” (People v. Homick
(2012) 55 Cal.4th 816, 865.) Here, defense experts agreed the
PET scan could not shed light on whether defendant
experienced a seizure on the night of the fire. Furthermore, any
abnormality affecting defendant’s judgment or impulsivity had
no apparent bearing on the guilt-phase defense, which was
based on defendant’s allegedly unconscious actions. Under
these circumstances, the PET scan had little probative value
and its exclusion did not violate defendant’s constitutional
rights.
Defendant contends the trial court abused its discretion by
denying her request for a continuance to prepare for the Kelly
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Opinion of the Court by Cantil-Sakauye, C. J.
hearing, and that any insufficient showing by the defense was
caused by the court forcing counsel to proceed, resulting in a
fundamentally unfair hearing. Exclusion of the evidence under
section 352, however, was not the result of an inadequate
showing by the defense. Defendant’s experts unequivocally
endorsed key facts that supported the trial court’s section 352
ruling: the PET scan could not be correlated to particular
conditions or behaviors at the time of the fire or used to conclude
that defendant had experienced a seizure. There is no evidence
on this record to suggest that additional time to prepare would
have altered these conclusions.
Defendant argues that the trial court also abused its
discretion and deprived her of due process by allowing the
prosecution to challenge the relevance of PET scan evidence and
to seek its exclusion pursuant to Evidence Code section 352
without proper notice to the defense. This argument is forfeited
by defendant’s failure to raise it in the trial court. (People v.
Riggs (2008) 44 Cal.4th 248, 304.) It also lacks merit. In her
motion to reconsider the PET scan exclusion, defendant
acknowledged that she had notice of prosecution challenges to
relevance and prejudicial effect. The prosecution motion raised
these issues, the trial court expressed its intent to address them,
and defendant ultimately presented evidence and argument on
them.
Finally, defendant contends discovery statutes did not
authorize prosecution cross-examination of defense experts
outside the Kelly framework. Evidence Code sections 403 and
402 plainly permit the trial court to preview evidence and hear
testimony before ruling on questions of admissibility.
Furthermore, “ ‘[i]n determining the admissibility of evidence,
the trial court has broad discretion.’ ” (People v. Jackson, supra,
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Opinion of the Court by Cantil-Sakauye, C. J.
1 Cal.5th at p. 320.) “ ‘When the relevance of proffered evidence
depends upon the existence of a preliminary fact, the trial court
must determine whether the evidence is sufficient to permit the
jury to find the preliminary fact true by a preponderance of the
evidence.’ ” (Id. at p. 321.) Discovery of potential testimony, by
both parties, was an unavoidable consequence of the court’s
proper function. (Cf. Hawkins v. Superior Court (1978)
22 Cal.3d 584, 588 [discovery benefit to accused is incidental to
preliminary hearing for probable cause determination].)
5. Failure to disqualify a prosecution expert
Defendant contends the trial court erred when it allowed
Dr. Alex Caldwell, whose company scored defendant’s
psychological testing, to testify on rebuttal for the prosecution.
Defendant argues that Dr. Caldwell’s appointment allowed
prosecutors access to confidential and privileged information
and violated her Fifth, Sixth, Eighth, and Fourteenth
Amendment rights. We conclude that no error occurred.
a. Background
Defense psychologist Dr. Kaser-Boyd administered
psychological tests to defendant in 1999 that included the
Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Dr.
Kaser-Boyd sent the MMPI-2 results to Dr. Caldwell’s scoring
service and obtained a computer-generated report that scored
and interpreted them according to his proprietary algorithm.
Dr. Kaser-Boyd’s report analyzed the 1999 testing and the
results of another MMPI-2 administered to defendant in 1997
during family court proceedings.
Defense counsel’s disclosures to the prosecution included
Dr. Kaser-Boyd’s report, the MMPI-2 test results, and Dr.
Humphrey’s report, which indicated that she reviewed Dr.
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Opinion of the Court by Cantil-Sakauye, C. J.
Kaser-Boyd’s report and the MMPI-2 testing. After defense
counsel announced he would call Dr. Humphrey to testify, the
prosecutors obtained the appointment of Dr. Caldwell pursuant
to Evidence Code section 730 to assist them and prepare to
provide rebuttal testimony regarding the MMPI-2. The trial
court denied defendant’s motion to vacate Dr. Caldwell’s
appointment.
During cross-examination, Dr. Humphrey confirmed that
she reviewed Dr. Caldwell’s report. She acknowledged that his
report found a strong possibility that defendant had
exaggerated her test responses or falsified them, a detail Dr.
Humphrey had not mentioned in her own report or direct
testimony. Dr. Humphrey also acknowledged that the 1997
MMPI-2 found defendant trying hard to present herself in a
favorable light, likely invalidating the profile. Dr. Caldwell
testified on rebuttal that the 1999 and 1997 results were
“strikingly opposite” and suggestive of someone consciously
distorting the results.
b. Analysis
Defendant claims the trial court erred by refusing to
vacate Dr. Caldwell’s appointment, arguing that
disqualification was required because he received confidential
and privileged information from the defense. Defendant relies
primarily on federal civil cases to support her theory that
disqualification was required for “a ‘switching sides’ expert —
an expert who is initially retained by one party, dismissed, and
employed by the opposing party in the same or related
litigation.” (Erickson v. Newmar Corp. (9th Cir. 1996) 87 F.3d
298, 300.) Defendant has forfeited this argument by failing to
present it to the trial court. The civil disqualification concerns
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are also inapplicable in this setting, in which Dr. Caldwell’s
report and the underlying data were plainly confidential and yet
were voluntarily disclosed to the prosecution pursuant to
criminal discovery obligations.
We reject defendant’s argument that the trial court
violated her right against self-incrimination by allowing the
prosecution to retain Dr. Caldwell and use confidential
information in his report against her. “By presenting, at trial, a
mental-state defense to criminal charges or penalties, a
defendant waives his or her Fifth Amendment privilege to the
limited extent necessary to allow the prosecution a fair
opportunity to rebut the defense evidence. Under such
circumstances, the Constitution allows the prosecution to
receive unredacted reports of the defendant’s examinations by
defense mental experts, including any statements by the
defendant to the examiners and any conclusions they have
drawn therefrom.” (Maldonado v. Superior Court (2012)
53 Cal.4th 1112, 1125.) Once a defendant calls a defense expert
to the stand, she waives “any protections that the attorney-
client privilege, the attorney work product doctrine, and the
privilege against self-incrimination afforded [her] regarding all
matters that [her testifying experts] considered or on which they
relied.” (People v. Combs (2004) 34 Cal.4th 821, 864 (Combs);
see also Ledesma, supra, 39 Cal.4th at p. 695.)
Furthermore, an expert witness may be cross-examined
concerning “the matter upon which his or her opinion is based
and the reasons for his or her opinion.” (Evid. Code, § 721, subd.
(a)(3).) “The scope of cross-examination permitted under section
721 is broad, and includes examination aimed at determining
whether the expert sufficiently took into account matters
arguably inconsistent with the expert’s conclusion.” (Ledesma,
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Opinion of the Court by Cantil-Sakauye, C. J.
supra, 39 Cal.4th at p. 695.) The prosecution may not only cross-
examine a defense expert about an otherwise privileged report
the expert considered, but also may call the non-testifying
author of such a report to testify as a rebuttal witness for the
prosecution. (Combs, supra, 34 Cal.4th at p. 864; People v.
Alfaro (2007) 41 Cal.4th 1277, 1323.)
Defendant cites Rodriguez v. Superior Court (1993)
14 Cal.App.4th 1260, 1270, to support her argument that she
did not waive her privilege against self-incrimination when she
disclosed Dr. Caldwell’s report. The appellate court in
Rodriguez did not address Fifth Amendment protections, ruling
instead that attorney-client privileges applied to pretrial
discovery and that defendant’s statements about the charged
offense could properly be redacted from an otherwise
discoverable defense expert’s report. (Ibid.) Such
considerations are not relevant here, where defense counsel
voluntarily disclosed all reports related to MMPI-2 testing to the
prosecution.
Defendant also claims that Dr. Humphrey’s testimony did
not result in a waiver of privileges because Dr. Humphrey did
not base her opinions on Dr. Caldwell’s report and the defense
did not “open the door” by asking Dr. Humphrey about the
report during direct examination. This argument, which
defendant raises for the first time in her reply briefing, is one
we have rejected. (Combs, supra, 34 Cal.4th at p. 864.) When
testifying experts have “read and considered” a non-testifying
expert’s report, all privileges regarding the report are waived.
(Ibid.; Ledesma, supra, 39 Cal.4th at p. 696.)
Here, the trial court correctly ruled that defendant waived
her Fifth Amendment rights and other privileges regarding Dr.
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Caldwell’s report when she presented the testimony of Dr.
Humphrey. Dr. Humphrey testified that she considered
defendant’s MMPI-2 reports but she ignored the implications
they raised about defendant’s truthfulness. The prosecution
was entitled to call Dr. Caldwell as a witness to address “all the
circumstances involved in the testing, not merely the truncated
version defendant desire[d].” (People v. Cooper (1991) 53 Cal.3d
771, 824; see also People v. Alfaro, supra, 41 Cal.4th at p. 1326.)
Defendant claims Dr. Caldwell’s appointment to assist the
prosecution was improper because it preceded Dr. Humphrey’s
testimony, but defendant points to no authority to suggest that
the prosecution is prohibited from preparing for anticipated
rebuttal. On the contrary, such preparation, even before trial,
does not violate defendant’s constitutional rights or other
privileges. (People v. Maldonado, supra, 53 Cal.4th at pp. 1132–
1133.) Under Evidence Code section 730, the authority under
which Dr. Caldwell was appointed, trial courts may appoint
experts to assist the prosecution with rebuttal concerning a
mental state defense. (People v. Banks, supra, at p. 1193;
Maldonado, at p. 1125.)
Defendant also contends the trial court’s decision to allow
Dr. Caldwell to testify against her violated her Sixth and
Fourteenth Amendment rights to the assistance of counsel and
the ancillary services of mental health experts. “A criminal
defendant has the due process right to the assistance of expert
witnesses, including the right to consult with a psychiatrist or
psychologist, if necessary, to prepare his [or her] defense. (Ake
v. Oklahoma (1985) 470 U.S. 68, 83.) The Sixth and Fourteenth
Amendments to the United States Constitution also guarantee
a defendant’s right to present the testimony of these expert
witnesses at trial.” (People v. San Nicolas (2004) 34 Cal.4th 614,
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661–662.)
These propositions, focusing on a defendant’s access to
confidential expert assistance to prepare a defense, are
inapposite here, where the record reveals at least eight experts
who assisted the defendant with her mental state defense.
6. Asserted prosecutorial misconduct
Defendant contends that the prosecutor committed
misconduct by asking Dr. Plotkin to opine about the credibility
and veracity of defense witness testimony by Albert Lucia and
defendant. Defendant argues that the questioning constituted
misconduct under California law and violated her federal
constitutional rights to a fair trial. We reject these claims.
a. Background
Albert Lucia, defendant’s stepfather, spoke to her the day
before the fire and testified about her state of mind at that time.
After the trial court ruled that defense experts would not be
allowed to relate Lucia’s description of defendant’s childhood,
the defense recalled him to testify concerning defendant’s
history of seizures, hospitalization, and loss of consciousness as
a child.
Defendant testified regarding events before, during, and
after the fire. She testified that she began taking Zoloft after
her abortion. She also claimed that she did not recall writing
letters just before the fire that various people received from her;
she said that obscenities in one letter, which said “fuck you,”
were not her “normal way of talking.” During cross-
examination, the prosecutor highlighted defense expert notes
indicating that defendant did recall writing the letters and in
rebuttal presented evidence that a code defendant used to access
her pager messages was “fuck you.” The prosecution also
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Opinion of the Court by Cantil-Sakauye, C. J.
questioned defendant’s veracity during its case-in-chief,
presenting evidence that when renting her home defendant
falsely stated that she was married with three, rather than five,
children, and forged her ex-husband’s signature on the rental
application.
Dr. Plotkin testified on surrebuttal that defendant’s
childhood health issues, as described by Lucia, were consistent
with childhood seizures, which contributed to his opinion that
defendant’s actions could have been affected by a seizure at the
time of the fire. On cross-examination, Dr. Plotkin explained
that Lucia’s testimony was compelling because it was unlikely a
lay person could give the proper sequence of events to reflect
seizure disorder. In response to questions suggesting that Lucia
could have been coached before he returned to testify a second
time, Dr. Plotkin agreed that without more information it was
as likely as not that he was coached.
Dr. Plotkin also described the potential effects of
defendant’s medication interactions, basing his conclusions on
defendant’s claim that she took Zoloft. The prosecutor asked
whether it would affect Dr. Plotkin’s view of defendant’s
truthfulness to know that she had a history of malingering on
psychological tests, as established by Dr. Caldwell’s analysis of
her MMPI-2 test results, and had fabricated a rental agreement
and committed fraud on her landlord. Apparently referencing
the testimony regarding defendant’s use of obscenities and her
pager code, the prosecutor asserted that defendant lied and
committed perjury on the witness stand and that physical
evidence proved her to be a liar. Dr. Plotkin conceded that if
defendant had lied in the past she might lie again.
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b. Analysis
“A prosecutor who uses deceptive or reprehensible
methods to persuade the jury commits misconduct, and such
actions require reversal under the federal Constitution when
they infect the trial with such ‘ “unfairness as to make the
resulting conviction a denial of due process.” ’ [Citations.]
Under state law, a prosecutor who uses such methods commits
misconduct even when those actions do not result in a
fundamentally unfair trial. [Citation.] In order to preserve a
claim of misconduct, a defendant must make a timely objection
and request an admonition; only if an admonition would not
have cured the harm is the claim of misconduct preserved for
review.” (People v. Alfaro, supra, 41 Cal.4th at p. 1328; see also
People v. Chatman (2006) 38 Cal.4th 344, 380 [objection to
misconduct at trial must be timely “and on the same ground” as
that raised on appeal].)
Defendant first argues that the prosecution committed
misconduct by eliciting speculative and irrelevant testimony
from Dr. Plotkin about Lucia’s veracity. Defendant’s failure to
object on this basis at trial forfeits the claim. Defendant argues
that she adequately preserved the misconduct claim with
objections that the prosecution misstated the evidence, but this
unrelated objection did not give the trial court “an opportunity
to correct the asserted abuse.” (People v. Young (2005)
34 Cal.4th 1149, 1186.) Even were the claim preserved, we
would conclude that it lacks merit.
“ ‘[I]t is well settled that the scope of cross-examination of
an expert witness is especially broad.’ ” [Citation.]” (People v.
Peoples (2016) 62 Cal.4th 718, 746.) It is therefore permissible
to “cross-examine an expert witness more extensively and
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searchingly than a lay witness, and . . . to attempt to discredit
the expert’s opinion.” (People v. Dennis (1998) 17 Cal.4th 468,
519; accord People v. Alfaro, supra, 41 Cal.4th at p. 1325.) “ ‘In
cross-examining a psychiatric expert witness, the prosecutor’s
good faith questions are proper even when they are, of necessity,
based on facts not in evidence. [Citation.]’ ” (People v. Wilson
(2005) 36 Cal.4th 309, 358.)
Defendant asserts an expert witness may not express an
opinion on witness credibility and that questions concerning
that topic improperly called for irrelevant testimony. We have
recognized, however, that “[t]here is no reason to categorically
exclude” such questioning. (People v. Chatman, supra,38 Cal.4th at p. 382.) Dr. Plotkin accepted Lucia’s testimony as
credible because he doubted Lucia could fabricate a sequence of
events indicative of seizure disorder. The prosecutor’s
subsequent questioning about whether Lucia could have been
coached was a “plausible alternative” to Dr. Plotkin’s
interpretation that was relevant and permissible in order to
explore those assertions. (People v. Anderson (1990) 52 Cal.3d
453, 479; see also Chatman, at p. 382.)
Defendant next contends the prosecution committed
misconduct when questioning Dr. Plotkin about defendant’s
credibility by stating that she had lied and committed perjury.
Defendant argues that by objecting to such questions as
misstating or mischaracterizing the evidence, she preserved the
claim. Even if that were case, we would conclude that the claim
lacks merit.
“An expert witness may be cross-examined on, among
other subjects, the matter upon which his or her opinion is based
and the reasons for the opinion, including any statements by the
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defendant that formed the basis for the expert’s opinion.”
(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 85; Evid.
Code, § 721, subd. (a).) Although it is misconduct to misstate
evidence during witness questioning (People v. Hill (1998)
17 Cal.4th 800, 825), a prosecutor may address the credibility of
witnesses by reference to facts in the record (People v. Peoples,
supra, 62 Cal.4th at p. 796). “Prosecutors tread on dangerous
ground, however, when they resort to epithets to drive home the
falsity of defense evidence.” (People v. Ellis (1966) 65 Cal.2d
529, 539.)
Characterizing defendant as a liar and perjurer based on
an obscene pager code was questionable; defendant’s testimony
on cross-examination, however, raised the possibility that she
attempted to falsely deny responsibility for writing a highly
inculpatory note to her ex-husband. We conclude that the
“single reference” to alleged perjury (People v. Ellis, supra,
65 Cal.2d at p. 540) did not rise to the level of “ ‘deceptive or
reprehensible methods’ ” that amounted to misconduct (People
v. Friend (2009) 47 Cal.4th 1, 29), and the prosecutor’s other
questions — about defendant’s exaggerated or false MMPI-2
responses and misrepresentation and forgery in her rental
application — were proper subjects for cross-examination based
on evidence before the jury.
7. Instructional error related to discovery violations
Defendant contends the trial court erred when it
instructed the jury that she concealed and failed to timely
disclose material related to defense experts and lay witnesses.
Although the trial court erred, we conclude the error was
harmless.
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a. Background
Before trial, the defense disclosed reports from its arson
expert and experts addressing defendant’s mental state. The
prosecutors moved for additional discovery of interviews and
other materials considered by defense experts, with defendant
arguing that they were not entitled to pretrial discovery of such
information. The trial court’s pretrial discovery order tracked
the language of section 1054.3, requiring defendant to disclose,
among other things, names, addresses, written statements, and
reports of statements by witnesses the defense intended to call
and expert reports and the results of any physical or mental
examinations the defense intended to offer in evidence at trial.
As trial approached, the prosecution continued requesting
discovery from defense experts, including material they relied
upon, notes about their testing and communications with other
experts, and the methodology experts used to obtain and analyze
test results. The defense disclosed some of its experts’ notes
concerning the tests administered to defendant but again
argued that other notes and materials were protected until the
experts testified. The trial court ruled that defendant was
entitled to withhold additional privileged information at least
until the prosecution rested.
At the close of the prosecution’s case-in-chief, defense
counsel provided what he claimed was all remaining discovery
from the defense experts, including notes, interviews, testing,
and communications with defendant. The prosecution asked for
a month-long continuance to review the new material and
prepare to cross-examine defense experts. The prosecution also
complained that some of the experts’ handwritten notes were
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illegible and the prosecutors would need time to review them
with its experts.
At the same time, it came to light that defense counsel had
not disclosed statements by the first lay witnesses he intended
to call, Debbie Wood and Rhonda Hill. Counsel then turned over
interview notes for Hill and Wood, and for Albert Lucia and
Penny Lucia, claiming he overlooked them because they were in
his paralegal’s files. The trial court ruled that those defense
witnesses would not be allowed to testify until the court could
determine what sanctions to impose for the discovery violations:
“It may be that there’s no prejudice to the prosecution, but I am
not going to know that until I have a hearing on it.”
The trial court then informed the jury: “Ladies and
gentlemen, under the law in California, the laws of discovery
require that the prosecution and the defense are required to
disclose to each other before trial the evidence each intends to
present at trial. The reason for doing that is to promote the
ascertainment of truth, save court time, and avoid surprise
which may arise during the course of trial. [¶] Disclosures of
evidence are required to be made at least 30 days in advance of
trial. Any new evidence discovered within 30 days of trial must
be disclosed immediately. [¶] This morning, and in one case
this afternoon, [defense counsel] provided the prosecution for
the first time statements of witnesses that should have been
disclosed 30 days before trial. [¶] Because it is late disclosure
the court is going to give the People sufficient time to prepare as
to one witness, and the court will consider what will happen as
the other two or more witnesses. . . . I’ll give you further
instructions on this discovery noncompliance later on when the
issues are more clarified.”
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The prosecutors’ primary concern regarding the lay
statements was whether the defense experts had considered
them. After determining that those experts had not considered
the Wood and Hill statements, the prosecutors stated that they
were prepared to cross-examine them without delay but
requested additional time to prepare for the testimony of Albert
and Penny Lucia. The trial court decided the testimony would
proceed as scheduled, with the prosecution allowed to recall the
Lucias to address any issues raised by the new discovery. The
untimely statement from Albert Lucia was brief, and addressed
an incident involving defendant’s mother. During his
testimony, the court sustained objections to the incident as
irrelevant.
Regarding newly disclosed expert materials, the trial
court stated that the options were to preclude defense expert
testimony entirely or grant a continuance to allow the
prosecution time to prepare. The court faulted the defense for
the prospect of a two to four week continuance it found
“outrageous.” To avoid further delay during which time the
prosecution would attempt to decipher experts’ notes, the trial
court ordered one of the defense experts to provide the
prosecution with a typed transcription of his notes and ordered
two others to dictate their notes to court reporters, who would
then provide a transcription.
The trial court then informed the jury there would be a
two-week recess: “And I wanted to tell you the reason why we’re
taking this two-week delay. [¶] The defense has indicated their
intention to call psychologists and/or psychiatrists in the
defense. The People were provided with the information from
their experts — and they need to prepare for this presentation
— fairly recently. [¶] And the timing of that disclosure, which
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is permitted by law; in other words, the defense doesn’t have to
provide that information until the witnesses testify. But the
delay in the disclosure has necessitated a need to continue this
case so that the People can prepare to examine the witnesses.
[¶] Also the time is needed because the notes of some of their
experts are indecipherable to a great degree, and there’s going
to be a need for time to get those notes put into some kind of a
form where they can be read and interpreted by the People’s
experts.”
The trial court then immediately proceeded to address the
discovery violation regarding the lay witnesses, advising the
jury with CALJIC former No. 2.28 that “defendant has
concealed and failed to timely disclose evidence regarding
witness statements — witness statements of Debbie Woods,
Rhonda Hill, Al Lucia, Penny Lucia, Delores Morris, and Aunt
Lenore.”9 The court also imposed a $500 monetary sanction on
defense counsel under Code of Civil Procedure section 177.5.
9
The full instruction provided the following: “Also a slightly
different issue, and I gave you an instruction on this, I believe,
last week. [¶] That is that the prosecution and defense are
required to disclose to each other before trial evidence each
intents to present at the trial so as to promote the ascertainment
of truth, save court time, and avoid any surprise which may
arise during the course of the trial. [¶] Concealment of evidence
and delay in the disclosure of evidence may deny a party a
sufficient opportunity to subpoena necessary witnesses or
produce evidence which may exist to rebut the non-compliant
party’s evidence. [¶] Disclosure of evidence is required to be
made at least 30 days in advance of trial. Any new evidence
discovered within 30 days of trial must be disclosed
immediately. [¶] In this case, the defendant has concealed and
failed to timely disclose evidence regarding witness statements
— witness statements of Debbie Woods, Rhonda Hill, Al Lucia,
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Defense counsel objected to the court referencing the
statements of Morris and Lenore Frey — their statements came
from defense expert files but they were not defense witnesses.
Defense counsel later raised additional objections to the
discovery sanction, to the court’s remarks to the jury about the
two-week delay, and to the trial court “lump[ing] everything
together” when it addressed the continuance and discovery
violations at the same time.
During Dr. Humphrey’s cross-examination, she revealed
that she did not use standard normative data to score one of the
tests she administered to defendant. She acknowledged that
she had been told to provide prosecutors with everything she
consulted, but she had not given them information about the
new data.
Just before Dr. Ney testified, the defense turned over the
doctor’s recent interview with Albert Lucia, several pages of
research articles he considered, and a package of material he
planned to reference that included his opinions about a number
of conditions and differential diagnoses. Dr. Ney also
acknowledged that he interviewed defendant the night before
testifying, and, at defense counsel’s suggestion, did not take
notes. The prosecution informed the court that there was a
Penny Lucia, Delores Morris, and Aunt Lenore. [¶] Although
this concealment and failure to timely disclose evidence was
without lawful justification, the court will, under the law,
permit the production of this evidence during the trial. [¶] The
weight and significance of any concealment and delay of
disclosure are matters for your consideration. [¶] However,
when you do start to deliberate in this case, you should consider
whether the concealed and untimely disclosed evidence pertains
to a fact of importance, something trivial, or subject matters that
are established by other credible evidence.”
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“huge amount” of new information in the recently disclosed
material.
The trial court concluded that the recent disclosures
appeared to violate the court’s ruling made a week prior,
requiring Dr. Ney to produce everything he relied upon in
forming his opinion. The court then explained to the jury that,
given the new disclosure, “I am going to have to make a decision
on whether this is a violation of the discovery rules.”
Upon further examination, it appeared the disclosures
included a prior, undisclosed report of Dr. Ney’s conclusions and
a “pregnancy loss questionnaire” regarding defendant that he
had not turned over to the prosecution. The court ordered the
defense to make Dr. Ney’s entire file available to the prosecution
for review, which in turn revealed additional reports, notes, and
articles not previously disclosed. The prosecutor stated that she
was not inclined to ask for more time to review the material
because doing so would not be fair to the jury, but she requested
monetary sanctions against both Dr. Ney and defense counsel,
as well as a jury instruction, which the defense opposed.
The trial court denied the request for sanctions against Dr.
Ney but agreed over additional defense objections to instruct the
jury with CALJIC No. 2.28. The trial court rejected the
prosecution’s argument that the initial mid-trial disclosure of
defense expert material, and two-week delay, justified the
instruction. The prosecutors also conceded the instruction was
not appropriate with regard to Penny Lucia’s statement, which
they received before her testimony, or for statements from
Morris and Frey, who did not testify. The trial court stated that
the wording of violations pertaining to Drs. Ney and Humphrey
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was meant to be broad enough to address Dr. Ney’s failure to
take notes when interviewing defendant.
When giving guilt phase instructions, the trial court read
to the jury CALJIC former No. 2.28, describing defendant’s
violations as concealing and failing to timely disclose “[w]itness
statements of Debbie Wood, Rhonda Hill, and Al Lucia” and to
provide “[r]eadable notes and reports and other materials relied
upon [by] witnesses Dr. Philip Ney and Dr. Lorie Humphrey.”
The prosecution also referenced the instruction in closing
argument: “You also received an instruction with respect to
discovery violations and the failure to produce evidence 30 days
prior to trial. [¶] [The] People, along with the Sheriff’s
Department, gave all the evidence to the defense in accordance
with the law. We can’t say the same for the defense. [¶] The
point of it is you can’t find defendant guilty because they hid
stuff. The point is why. Why hide? Why hide your defense? [¶]
I[’ll] tell you why. Desperation. The evidence in this case is so
overwhelming, so enormous, and so vast, what are you going to
do? [¶] It’s in order to prevent the prosecution from being able
to prepare; in order to gain a strategic advantage.”
b. Analysis
Defendant claims the trial court erred when it sanctioned
her for failing to provide the prosecution with items the criminal
discovery statutes did not obligate her to disclose and for
discovery violations that did not hinder the prosecution. She
also argues that the particular instruction given, CALJIC
former No. 2.28, was flawed in several respects.
i. Scope of discovery violations
Defendant argues preliminarily that there was no
discovery violation related to the disclosure of statements from
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witnesses Morris and Frey, “readable” notes from defense
experts, and materials relied upon by defense experts. We agree
that defendant’s disclosure of these items did not violate the
criminal discovery statute or the trial court’s pretrial discovery
rulings. Defendant also contends that discovery violations that
did occur were limited and of little consequence, a
characterization we find incomplete in that it refers only to
disclosures regarding lay witness.
First, defendant claims that her disclosure of the Morris
and Frey statements did not constitute a discovery violation
because she did not intend to call them as witnesses in the guilt
phase. The record indicates that the statements were among
the disclosed files of a defense expert, but Morris and Frey did
not testify during the guilt phase, and the prosecutors later
conceded that guilt phase instructions about discovery
violations should not reference Morris and Frey.
The People argue that the statements were discoverable
because defense experts relied on them. Although the
prosecution was entitled to material upon which testifying
experts relied (Ledesma, supra, 39 Cal.4th at p. 695), the trial
court ruled that defendant’s disclosure of expert materials
shortly before their testimony was lawful. There was no
discovery violation because the statements did not pertain to
witnesses the defense intended to call (§ 1054.3) and the defense
disclosed them as a basis for expert opinion at a time the trial
court condoned. The People assert defendant forfeited her
argument by disclosing the Morris and Frey statements without
objection, but this does not establish forfeiture of the claim that
discovery sanctions were unwarranted, an objection defendant
raised at trial.
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The People also argue that the defense improperly delayed
disclosures related to Frey. They assert that because she was
later called as a penalty phase witness, her statements should
have been disclosed 30 days before the guilt phase. The trial
court addressed discovery violations related to Frey’s
statements during the penalty phase when they arose but this
posed no discovery violation with regard to the guilt phase, as
the prosecution ultimately acknowledged.
Second, defendant claims that because she was not
required to disclose notes and other material relied upon by
defense experts until they were called to testify, there was no
discovery violation that warranted the trial court’s instruction
that she concealed and failed to disclose “readable” notes.
The People assert that the criminal discovery statute
requires defendants to disclose an expert’s raw written notes,
citing Verdin, supra, 43 Cal.4th 1096, 1103–1104, and
Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 486.
These cases do not support such a broad proposition. In Verdin
we addressed compelled pretrial examination of a defendant by
prosecution experts and merely observed that the defendant in
that case did not object to disclosing “written or recorded
information” possessed by the defense expert; we also
determined that the description of discovery in Penal Code
sections 1054.1 and 1054.3 did not exclude other types of
materials from the reach of the criminal discovery statutes.
(Verdin, at pp. 1103–1104.) In Thompson, the appellate court
determined that raw notes of a witness interview constituted
witness statements for purposes of Penal Code sections 1054.1
and 1054.3. (Thompson, at p. 485.)
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Defense counsel’s pretrial disclosures included expert
notes concerning their testing of defendant. The notes at issue
regarding the later disclosures included defendant’s statements
to experts and consultations among defense experts and other
defense team members, information normally protected from
disclosure until presentation of the expert’s testimony waives
applicable privileges. (Ledesma, supra, 39 Cal.4th at p. 695;
§ 1054.6; see also Evid. Code, § 721, subd. (a).)
Although an expert’s handwritten notes may be
discoverable pursuant to section 1054.3 under some
circumstances (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1233), the trial court here ruled that defense counsel was not
required to disclose privileged information and work product
before trial and acknowledged that defendant was entitled to
delay disclosure of notes and other expert materials until her
experts testified. We therefore conclude that regardless of their
legibility, defendant was not required to disclose the expert
notes before trial. “Rather, because the record does not
demonstrate the [defendant] failed to disclose any discoverable
material, and the undisclosed . . . information fell outside the
scope of the discovery statute, no discovery violation appears.”
(People v. Tillis (1998) 18 Cal.4th 284, 290–291.)
The People contend that defendant did not object to her
experts creating legible versions of their notes and thus forfeited
the claim. This point, which defendant disputes, does not relate
to defendant’s claim that disclosure of the notes was not
untimely. The claim is not forfeited when, as here, defense
counsel consistently argued that he was entitled to withhold
experts’ notes until they testified.
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Third, defendant contends there was no discovery
violation regarding “other materials relied upon” by Drs. Ney
and Humphrey. Defendant does not challenge the trial court’s
ruling that Dr. Humphrey withheld test data from the
prosecution in violation of section 1054.3. We do not identify
other discovery violations at issue relating to Dr. Humphrey and
the parties do not point to any. Regarding disclosures from Dr.
Ney, the People argue that “other materials” refers to his notes
on defendant’s mental state — not, as defendant argues, to texts
or reference works. Neither party offers a citation to the record
on this point.
The trial court stated that disclosures from Dr. Ney
violated the court’s order, issued shortly before his testimony,
that he produce all material on which he relied. This was
consistent with the trial court’s earlier rulings that prosecutors
were not entitled to outstanding defense expert materials until
they testified and reflected the prosecution’s right to access the
information for cross-examination, pursuant to Evidence Code
section 721, rather than for pretrial discovery, pursuant to
Penal Code section 1054.3. (Cf. People v. Jones (2003) 29 Cal.4th
1229, 1264 [trial court may order disclosure of unredacted
defendant statements before testimony of an expert the defense
“ ‘definitely’ ” will call]; Ledesma, supra, 39 Cal.4th at p. 695.)
The trial court also indicated that the discovery sanction
addressed Dr. Ney’s failure to take notes when interviewing
defendant just before he testified, a concern similarly outside
the scope of the discovery statute. We therefore conclude that
defendant did not violate her discovery obligations regarding
“materials relied upon” by Dr. Ney.
Finally, defendant claims the trial court’s instructions
were unnecessary when the statements that were not timely
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disclosed were brief, uncomplicated, and in some respects
unrelated to the guilt phase. Defendant’s argument focusses on
statements from lay witnesses — Woods, Hill, Albert Lucia, and
Penny Lucia. After receiving late disclosure of statements from
Wood and Hill, the prosecutors determined that they did not
need additional time to prepare to cross-examine them. The
untimely statement from Albert Lucia addressed an incident the
court later ruled was irrelevant. And the prosecutors
determined that having received Penny Lucia’s statement
before she testified, no further sanction was warranted.
Although defendant does not address the impact of withholding
Dr. Humphrey’s normative data or Dr. Ney’s reports, it appears
the prosecution had little trouble managing the late disclosure
of lay statements.
To summarize, the trial court twice instructed the jury
concerning discovery violations regarding lay witnesses: the
first time naming Woods, Hill, Albert Lucia, Penny Lucia,
Morris, and Lenore Frey; and the second time naming just
Woods, Hill, and Albert Lucia. We have concluded that there
was no discovery violation regarding statements from Morris
and Frey and, as we have just observed, the prosecutors at trial
appeared unaffected by delayed statements from the remaining
four lay witnesses.
Regarding expert witnesses, the trial court instructed the
jury that defendant failed to timely disclose “[r]eadable notes
and reports and other materials relied upon” by Drs. Ney and
Humphrey. We have concluded that the notes at issue here were
not discoverable pursuant to section 1054.3, readable or
otherwise. We have also determined that there was no discovery
violation in defense counsel’s disclosure of “other materials
relied upon” by Dr. Ney. In other words, discovery violations
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regarding defense expert materials were limited to reports by
Dr. Ney and test data from Dr. Humphrey.
ii. Instruction on specific discovery violations
Defendant contends that by citing alleged defense failures
that were not discovery violations and referring to discovery
violations that did not hinder the prosecution, the trial court’s
instructions to the jury were arbitrary, disproportionate,
unwarranted, and deprived her of a fair trial and due process.
Defendant further claims that the trial court erred by
instructing the jury with CALJIC former No. 2.28.
The trial court commented generally on discovery
compliance and delays by the defense and also instructed the
jury about specific discovery violations. We address the trial
court’s general comments relating to discovery compliance in
conjunction with defendant’s claims regarding judicial
misconduct, post, part II.D. Concerning the specific discovery
violations, we conclude that it was error to instruct the jury with
CALJIC former No. 2.28, given the deficiencies we have
identified in that instruction (People v. Thomas (2011)
51 Cal.4th 449, 483 (Thomas)) and the scope of discovery
violations in defendant’s case.
First, the instruction informed the jury that the
“defendant” concealed and failed to timely disclose evidence
when there was no indication defendant played any such role.
It was therefore “ ‘misleading to suggest that “the defendant”
bore any responsibility’ [citation] for [her] attorney’s failure to
provide discovery.” (Thomas, supra, 51 Cal.4th at p. 483.)
Second, although the instruction indicated that
concealment and late disclosure could affect the prosecution,
there was no evidence that this “had actually deprived the
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prosecutor ‘of the chance to subpoena witnesses or marshal
evidence in rebuttal.’ ” (Thomas, supra, 51 Cal.4th at p. 483.)
This was particularly true in defendant’s case, where the trial
court instructed jurors to consider late disclosures: for Morris
and Frey, although there was no discovery violation related to
their statements; for Wood, Hill, and Penny Lucia, although the
prosecution claimed it was unaffected by the timing of their
disclosures; for Albert Lucia, whose statement the court later
found irrelevant; and for a broadly articulated category of
“readable notes” and “other material” from Drs. Humphrey and
Ney that was, on review, inapplicable.
Finally, the instruction “was deficient in informing the
jury that ‘ “[t]he weight and significance of any delayed
disclosure are matters for your consideration,” ’ because it
offered ‘no guidance on how this failure might legitimately affect
their deliberations.’ ” (Thomas, supra, 51 Cal.4th at p. 483.)
iii. Prejudice
Defendant asserts the erroneous discovery instructions
constitute structural error. “ ‘[M]ost constitutional errors can be
harmless.’ [Citation.] ‘[I]f the defendant had counsel and was
tried by an impartial adjudicator, there is a strong presumption
that any other [constitutional] errors that may have occurred
are subject to harmless-error analysis.’ ” (Neder v. United States
(1999) 527 U.S. 1, 8.) We have therefore recognized that
structural error is limited to circumstances in which the error
“necessarily affected the whole framework within which the
trial proceeded” or “defies analysis for prejudice.” (People v.
Mendoza (2016) 62 Cal.4th 856, 901.) Neither of these
conditions apply here.
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We conclude that it is not reasonably probable that an
outcome more favorable to defendant would have resulted
absent the error (People v. Watson (1956) 46 Cal.2d 818, 836),
and any federal constitutional error was harmless beyond a
reasonable doubt (Chapman v. California (1967) 386 U.S. 18,
24).
Defendant did not dispute starting the fire that killed her
children and instead testified that she did not remember
starting it or sending letters that appeared to reference her
planned murder-suicide. There were significant reasons to
doubt her defense of experiencing a dissociative state that
rendered her unconscious on the night of the fire. Defense
experts gave different explanations for defendant’s condition, at
times contradicting each other. There was evidence that
defendant wrote letters, drove to the post office, and poured and
lit gasoline throughout her house, all while allegedly
unconscious. Defendant also displayed a selective memory of
the evening, remembering some events but not others.
Defendant’s son testified regarding her apparent planning for
the crime, describing her insistence that the children sleep
together in the kitchen the night she set the fire. The jury took
less than a day to reach its verdict.
The prosecution briefly referenced the discovery violations
in closing and argued that the defense was trying to obstruct the
prosecution’s preparation. We conclude, however, that when, as
here, the defense was “highly improbable,” the case was “not
close,” and the jury reached its verdict quickly, the erroneous
instruction was harmless. (Thomas, supra, 51 Cal.4th at
p. 484.)
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8. Failure to instruct on lesser included offenses
Defendant contends the trial court erred by failing to
instruct the jury on involuntary manslaughter as a lesser
included offense of murder. She claims the jury could have
(1) concluded that she was unconscious due to her voluntary
intoxication or (2) found her guilty of a misdemeanor for
unlawfully causing a fire, and that either of these findings
supported the lesser included offense of involuntary
manslaughter. We reject these claims.
Investigators found two beer bottles and two wine cooler
bottles in defendant’s trash following the fire. Defendant
testified that she did not remember how much she drank and
her friend also “had a couple of drinks” while at her house. The
trial court found no evidence that defendant was unconscious
due to her ingestion of alcohol. Defense counsel initially sought
an involuntary manslaughter instruction but later argued the
instruction was not warranted because defendant did not
anticipate the use of prescription medication would cause
delirium or unconsciousness, a result experts explained was
quite rare.
The trial court did not give an involuntary manslaughter
instruction but instructed the jury to consider defendant’s
voluntary intoxication in deciding whether defendant possessed
the required specific intent or mental state at the time of the
charged crimes and special circumstances. The trial court also
instructed the jury that if defendant was not conscious but
acting “while asleep or while suffering from a delirium, a fever,
or because of an attack of epilepsy, a blow on the head, the
involuntary taking of drugs, or the involuntary consumption of
intoxicating liquor, or any similar cause” she could not be found
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guilty.
Defense counsel requested instruction on the lesser
included offense of arson, arguing that defendant could be found
guilty of negligently spilling gasoline, a misdemeanor. The trial
court found no evidence to support a lesser included offense and
rejected counsel’s argument as “ridiculous.”
“A trial court must instruct the jury on a lesser included
offense, whether or not the defendant so requests, whenever
evidence that the defendant is guilty of only the lesser offense is
substantial enough to merit consideration by the jury.” (People
v. Halvorsen (2007) 42 Cal.4th 379, 414, fn. omitted.) The
obligation to give an instruction on lesser included offenses
exists even when a defendant expressly objects to it. (People v.
Souza (2012) 54 Cal.4th 90, 114.) We review de novo the trial
court’s determination. (People v. Cole (2004) 33 Cal.4th 1158,
1218.)
Involuntary manslaughter is “the unlawful killing of a
human being without malice . . . in the commission of an
unlawful act, not amounting to a felony; or in the commission of
a lawful act which might produce death, in an unlawful manner,
or without due caution and circumspection.” (§ 192, subd. (b).)
“Unconsciousness, if not induced by voluntary
intoxication, is a complete defense to a criminal charge.” (People
v. Halvorsen, supra, 42 Cal.4th at p. 417; see also Penal Code,
§ 26.) However, “[w]hen a person renders himself or herself
unconscious through voluntary intoxication and kills in that
state, the killing is attributed to his or her negligence in self-
intoxicating to that point, and is treated as involuntary
manslaughter.” (People v. Ochoa (1998) 19 Cal.4th 353, 423;
People v. Rangel (2016) 62 Cal.4th 1192, 1227.) Intoxication
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may not be voluntary when an individual used prescription
medication but “did not know or have reason to anticipate the
drug’s intoxicating effects.” (People v. Mathson (2012)
210 Cal.App.4th 1297, 1313; see also People v. Chaffey (1994)
25 Cal.App.4th 852, 856.)
A person is guilty of arson when “she willfully and
maliciously sets fire to or burns . . . any structure, forest land,
or property.” (§ 451.) A person is guilty of “unlawfully causing
a fire” when she “recklessly sets fire to or burns or causes to be
burned, any structure, forest land or property.” (§ 452.) Under
section 452, it is a felony to unlawfully cause a fire that results
in great bodily injury (§ 452, subd. (a)), burns an inhabited
structure or inhabited property (§ 452, subd. (b)), or sets fire to
a structure or forest land (§ 452, subd. (c)), and it is a
misdemeanor to cause a fire to property (§ 452, subd. (d)).
We conclude there was insufficient evidence to support an
involuntary manslaughter instruction based on voluntary
intoxication. There is no substantial evidence of alcohol
intoxication; instead, the record reflects that defendant
consumed “relatively small amounts of alcohol” (People v.
Flannel (1979) 25 Cal.3d 668, 685) and no evidence suggested
that it affected her consciousness. As defense counsel argued,
any intoxication defendant experienced from prescription
medications was involuntary as a matter of applicable law if
defendant was unaware of a potentially intoxicating and rare
drug interaction. (People v. Chaffey, supra, 25 Cal.App.4th at
p. 856.) The trial court properly instructed the jury that
involuntary intoxication, if proved, would be a complete defense.
We also find no evidence to support a misdemeanor for
causing the fire. Even if we were to assume that unlawfully
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setting fire to the house is a lesser included offense of arson
(People v. Cole, supra, 33 Cal.4th at p. 1218) and that
defendant’s actions were reckless rather than willful, the
evidence established that a fire set to burn an inhabited
structure killed four children, thus constituting felonies under
section 452. Although we have recognized that “an
unintentional homicide committed in the course of a
noninherently dangerous felony may properly support a
conviction of involuntary manslaughter” (People v. Burroughs
(1984) 35 Cal.3d 824, 835), setting fire to an inhabited structure
“ ‘by its very nature . . . cannot be committed without creating a
substantial risk that someone will be killed’ ” (People v. Howard
(2005) 34 Cal.4th 1129, 1135–1136) — and is hence inherently
dangerous (see Cole, at p. 1218).
9. Lying-in-wait special circumstance
Defendant initially contends the lying-in-wait special
circumstance is unconstitutional because it fails to adequately
perform the narrowing function required by the Eighth
Amendment. We have repeatedly rejected this claim (People v.
Smith (2018) 4 Cal.5th 1134, 1178; People v. Delgado (2017)
2 Cal.5th 544, 576; People v. Casares (2016) 62 Cal.4th 808, 849),
and decline to reconsider the issue here. Defendant also argues
that the evidence at her trial was insufficient to support the
lying-in-wait special circumstances because the jury would have
had to speculate about the timing of relevant events to find those
allegations true. We reject this argument as well.
“To determine whether the evidence supports a special
circumstance finding, we must review ‘ “the entire record in the
light most favorable to the judgment to determine whether it
discloses evidence that is reasonable, credible, and of solid value
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such that a reasonable jury could find” ’ the special circumstance
allegation true ‘ “beyond a reasonable doubt.” ’ ” (People v.
Becerrada (2017) 2 Cal.5th 1009, 1028.)
At the time of defendant’s crime, “the special circumstance
of murder while lying in wait (former § 190.2, subd. (a)(15))
required ‘an intentional murder, committed under
circumstances which include (1) a concealment of purpose, (2) a
substantial period of watching and waiting for an opportune
time to act, and (3) immediately thereafter, a surprise attack on
an unsuspecting victim from a position of advantage.’ ” (People
v. Casares, supra, 62 Cal.4th at p. 827.) “ ‘ “If there is a clear
interruption separating the period of lying in wait from the
period during which the killing takes place, so that there is
neither an immediate killing nor a continuous flow of the
uninterrupted lethal events, the special circumstance is not
proved.” ’ ” (People v. Streeter (2012) 54 Cal.4th 205, 248.)
Evidence is insufficient to support a lying-in-wait special
circumstance when the theory of surprise requires a specific
sequence of events that “cannot be pinpointed” by the evidence.
(People v. Carter (2005) 36 Cal.4th 1215, 1262; see also People v.
Becerrada, supra, 2 Cal.5th at p. 1029.)
Defendant argues that evidence of lying in wait was
insufficient because the evidence did not establish when the fire
began or what defendant was doing immediately before it
started. Given the evidence, however, “the jury could
reasonably find no lapse in defendant’s culpable mental state
between the homicide and the period of watchful waiting.”
(People v. Streeter, supra, 54 Cal.4th at p. 249.)
On the night of the fire, defendant announced a “slumber
party” in the kitchen, which was unusual. Defendant’s son,
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F.D., did not want to sleep in the kitchen but she insisted.
During the evening, defendant wrote and mailed letters that
appeared to reveal a plan to kill herself and her children. F.D.
did not think he had been asleep for very long when he and his
sisters woke up coughing from the fire and his mother told them
to stay where they were. From this evidence the jury could
reasonably find a “continuous flow” of lethal events in which
defendant concealed her purpose and waited until her children
fell asleep so that she could set a fire to kill them and herself.
This satisfies the elements of the charged lying-in-wait special
circumstances.
10. Arson-murder special circumstance
Defendant contends the evidence was insufficient to
support the “independent felonious intent required for the
arson-murder special circumstance.” (People v. Mendoza (2000)
24 Cal.4th 130, 183 (Mendoza).) “The requirement of an
independent felonious purpose applies to felony-murder special-
circumstance findings under section 190.2, subdivision (a)(17).
[Citation.] This subdivision authorizes a special circumstance
finding when the murder ‘was committed while the defendant
was engaged in . . . the commission of [or] the attempted
commission of’ various other specified felonies. (§ 190.2, subd.
(a)(17).)” (People v. Powell, supra, 5 Cal.5th at p. 953.)
As we explained in Mendoza, “[a] felony-murder special
circumstance, such as arson murder, may be alleged when the
murder occurs during the commission of the felony, not when
the felony occurs during the commission of a murder.
[Citations.] Thus, to prove a felony-murder special-
circumstance allegation, the prosecution must show that the
defendant had an independent purpose for the commission of
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the felony, that is, the commission of the felony was not merely
incidental to an intended murder.” (Mendoza, supra, 24 Cal.4th
at p. 182.) “Concurrent intent to kill and to commit an
independent felony will support a felony-murder special
circumstance.” (Id. at p. 183; see also People v. Raley (1992)
2 Cal.4th 870, 903.) We must therefore determine whether,
viewing the evidence in the light most favorable to the
prosecution, “any rational trier of fact could have concluded that
defendant had a purpose for the arson apart from the murder.”
(Mendoza, at p. 183.)
Defendant argues that the prosecution was required to
show that she committed murder “to advance” the independent
purpose of committing arson, citing People v. Green (1980)
27 Cal.3d 1, 61. In Green, we concluded that a murder “to
advance an independent felonious purpose” satisfied special
circumstance requirements whereas a felony “merely incidental
to the murder” did not. (Ibid.) We have explained, however,
that “[t]here is nothing magical about the phrase ‘to carry out or
advance’ the felony.” (People v. Horning (2004) 34 Cal.4th 871,
908.) A jury “ ‘ “is not required to assign a hierarchy to the
defendant’s motives . . . [and] need only determine whether
commission of the underlying felony was or was not merely
incidental to the murder.” ’ ” (People v. Powell, supra, 5 Cal.5th
at p. 955.)
Here, there is substantial evidence from which the jury
could have concluded that defendant’s “purpose for the arson
apart from the murder” was suicide. (Mendoza, supra,24 Cal.4th at p. 183.) In a note to her ex-husband sent just
before the fire, defendant wrote, “Now you don’t have to support
any of us!” She sent a letter to her ex-boyfriend at the same
time, stating, “I can’t live without you in my life.” After lighting
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gasoline throughout the house, defendant lay down with her
children and stayed with them while the fire and smoke
overwhelmed them; at one point when he regained
consciousness, defendant’s son saw that she was unconscious on
the floor with his sisters. In her testimony, defendant
acknowledged that she had contemplated suicide most of her
life.
Because killing oneself is a purpose separate from killing
one’s victims, we conclude the evidence is sufficient to establish
that defendant committed arson with “independent, albeit
concurrent, goals” of killing herself and killing her children.
(Mendoza, supra, 24 Cal.4th at p. 183.)
Defendant also argues that the arson-murder special
circumstance instructions regarding the “independent felonious
purpose” requirement were confusing and misleading and failed
to adequately advise the jury of the applicable law. The trial
court modified CALJIC No. 8.81.17, adding a sentence to
indicate that the arson-murder special circumstance could be
established when there was a concurrent intent to kill and to
commit arson: “To find that the special circumstance referred
to in these instructions as murder in the commission of arson is
true, it must be proved: (1) the murder was committed while the
defendant was engaged in the commission of arson, and; (2) the
murder was committed in order to carry out or advance the
commission of the crime of arson, or to facilitate the escape
therefrom, or to avoid detection. Moreover, this special
circumstance is still proven if the defendant had the separate
specific intent to commit the crime of arson, even if she also had
the specific intent to kill. In other words, the special
circumstance referred to in these instructions is not established
if the arson was merely incidental to the commission of the
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murder.”
Defendant acknowledges that the added, italicized
language was a correct statement of the law, but argues that, as
a whole, the instruction misled the jury into thinking that a
concurrent intent to commit arson and to kill could mean that
the arson was not “merely incidental” to the murder. If the
jurors reached this conclusion, and they apparently did, it was
permissible under the law. “We have repeatedly held . . . that a
defendant’s possession of the intent to kill concurrently with the
intent necessary to support a predicate felony does not
necessarily render commission of the predicate felony incidental
to the murder.” (People v. Powell, supra, 5 Cal.5th at 954.)
We reject defendant’s claim that the instruction allowed
the jury to find the arson-murder special circumstance true
without finding a separate and independent purpose for
committing arson. “[W]e have never suggested that . . . any
precise language was required to explain the concept [of
independent felonious purpose] to the jury” (People v. Horning,
supra, 34 Cal.4th at p. 908), and we find that the instruction
given here adequately conveyed the applicable law and
requirements of the arson-murder special circumstance.
Defendant argues that the modified instruction given to
her jury was deficient for the same reasons we found to be error
in People v. Brents (2012) 53 Cal.4th 599, 613 (Brents). There,
the trial court modified the standard instruction, CALJIC
No. 8.81.17, so that it referred to two different target offenses,
assault by force and kidnapping. In that context, the first and
second sentences of the second paragraph did not refer to the
same target offense and created confusion about what findings
were required. (Brents, at p. 613.) There could have been no
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such confusion here. The instructions focused on the proper
predicate felony — arson — and correctly informed the jury that
“the special circumstance referred to in these instructions is not
established if the arson was merely incidental to the commission
of the murder.” The danger in Brents, that the jury may have
found the special circumstance satisfied without finding true the
correct predicate felony, was not present in this trial.
C. Penalty Phase Issues
Defendant raises evidentiary challenges to the penalty
phase of the trial and contends the death penalty was
disproportionate to her individual culpability. Because we
ultimately reverse the penalty verdict due to the trial court’s
misconduct, we need not address each of these challenges.
(People v. Peterson (2020) 10 Cal.5th 409, 477.) Instead, we
discuss here the errors that shed light on the trial court’s
misconduct — improper exclusion of mitigating evidence and
erroneous instruction regarding discovery violations — and
address their prejudicial impact in our analysis of the judicial
misconduct claim.
1. Exclusion of mitigation evidence
Defendant claims the trial court erred when it excluded
evidence related to neuropsychological testing and PET scan
results, and erred when it sustained objections to lay witness
testimony about defendant’s good character. We agree that the
trial court’s exclusion of this evidence was error.
“ ‘The Eighth and Fourteenth Amendments require the
jury in a capital case to hear any relevant mitigating evidence
that the defendant offers, including “ ‘any aspect of a
defendant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence
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less than death.’ ” ’ ” (People v. Rogers (2013) 57 Cal.4th 296,
346.) “However, while the range of constitutionally pertinent
mitigation is quite broad [citation], it is not unlimited.” (Carasi,
supra, 44 Cal.4th at p. 1313). Trial courts retain the authority
to “ ‘apply[] ordinary rules of evidence to determine whether
such evidence is admissible’ ” (People v. McDowell (2012)
54 Cal.4th 395, 434) and “to exclude, as irrelevant, evidence that
has no logical bearing on the defendant’s character, prior record,
or the circumstances of the capital offense” (Carasi, at p. 1313).
a. Neuropsychological testing expert
Defendant contends the trial court violated her rights
under the Eighth and Fourteenth Amendments when it
excluded testimony by Dr. Kyle Boone regarding defendant’s
neuropsychological test results and cognitive impairment.
i. Background
Before the penalty phase began the trial court noted that
jurors were “getting a little antsy.” After excusing an alternate
juror for preplanned travel, and after hearing of a sitting juror’s
personal scheduling problems, the trial court worried about
losing jurors and stated its belief that “penalty phase witnesses
should not take very long.”
On the first day of defense testimony, counsel informed
the court and prosecutors that he would be calling a new
neuropsychological expert, Dr. Kyle Boone, that afternoon. Dr.
Boone’s report acknowledged that Dr. Humphrey used incorrect
normative data but concluded that the testing revealed
“consistent evidence” of defendant’s impaired memory, frontal
lobe skills, and math ability, but otherwise showed average
scores and intelligence. The defense estimated Dr. Boone’s
testimony would take about 45 minutes and would rehabilitate
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Dr. Humphrey’s findings, show the impact of defendant’s
impairment on her life, evoke sympathy, and explain, if not
excuse, the crime.
The prosecutors strenuously objected to Dr. Boone’s
testimony. They argued that Dr. Humphrey’s testimony had
already addressed section 190.3, factor (k) evidence and that
they would need a lengthy continuance to prepare if Dr. Boone
testified.
The trial court ruled that Dr. Boone’s testimony would be
cumulative, “take days,” and involve an undue consumption of
time, noting that, at any rate, Dr. Boone would not be allowed
to testify about how Dr. Humphrey obtained the wrong
normative data because such testimony would be speculative.
ii. Analysis
In excluding Dr. Boone’s testimony, the trial court
implicitly engaged in analysis under Evidence Code section 352
and found that concerns regarding delay “substantially
outweighed” the probative value of the evidence. (Evid. Code,
§ 352; People v. Villatoro (2012) 54 Cal.4th 1152, 1168.) A trial
court may exclude from the penalty phase “ ‘ “particular items
of evidence” . . . [that are] misleading, cumulative, or unduly
inflammatory.’ ” (People v. Smith (2005) 35 Cal.4th 334, 357),
although evidence “ ‘identical in subject matter to other
evidence should not be excluded as “cumulative” when it has
greater evidentiary weight or probative value.’ ” (People v.
McKinnon (2011) 52 Cal.4th 610, 669; see also Skipper v. South
Carolina (1986) 476 U.S. 1, 8).
Defendant cites People v. Lucero (1988) 44 Cal.3d 1006, in
support of her claim that she was entitled to have the jury
consider Dr. Boone’s testimony. There, we addressed the
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exclusion of expert testimony about a defendant’s mental
condition in the penalty phase. Although one defense expert
was allowed to testify about the condition, we declined to find
similar testimony by a second expert cumulative when there
was “considerable debate” regarding the methods by which the
first examiner reached his conclusions. (Id. at pp. 1031–1032.)
We also observed that when the prosecution seeks to impeach
the testimony of the first defense expert, it might be “very
important for defendant to be able to show that not only one, but
two mental health experts” had reached the same conclusion.
(Id. at p. 1031.)
Dr. Humphrey was the only expert to testify about
cognitive impairment that may have been related to defendant’s
childhood abuse and seizures. The People argue that Dr.
Boone’s testimony was properly excluded because it would have
merely repeated Dr. Humphrey’s conclusions. As defendant
argued, however, Dr. Boone’s testimony would have addressed
defendant’s mental condition as a mitigating factor and was
therefore distinct from evidence presented in the guilt phase.
Furthermore, impeachment and rebuttal of Dr. Humphrey’s
testimony raised significant questions about her credibility. (Cf.
People v. Kennedy (2005) 36 Cal.4th 595, 632.) Testimony from
Dr. Boone had the potential to carry greater evidentiary weight
and was not merely cumulative. (People v. McKinnon, supra, 52
Cal.4th at p. 669; People v. Lucero, supra, 44 Cal.3d at p. 1031.)
The probative value of Dr. Boone’s testimony was also
relatively substantial, given that expert assessment of
neuropsychological test data was both necessary and relevant to
establishing mitigating factors related to defendant’s mental
functioning. (People v. Steele (2002) 27 Cal.4th 1230, 1282–
1283.) The high court has reiterated that “ ‘ “defendants who
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commit criminal acts that are attributable . . . to emotional and
mental problems, may be less culpable than defendants who
have no such excuse.” ’ ” (Abdul-Kabir v. Quarterman (2007)
550 U.S. 233, 251–252.) This concern is reflected in section
190.3, factor (k), which directs the jury to consider “ ‘any other
circumstance which extenuates the gravity of the crime,’ [and]
therefore allows consideration of any mental or emotional
condition.” (People v. Cox (2003) 30 Cal.4th 916, 966.) The
testimony was also probative of defendant’s state of mind under
section 190.3, factor (a). (People v. Guerra, supra, 37 Cal.4th at
p. 1154.)
We next consider whether undue consumption of time
“substantially outweighed” the probative value of Dr. Boone’s
testimony. (Evid. Code, § 352.) In People v. Fuiava (2012)
53 Cal.4th 622, we concluded the trial court did not err when it
excluded mitigation evidence regarding the settlement of
lawsuits that alleged misconduct by sheriff’s deputies and was
offered to support defendant’s reasonable fear of them. (Id. at
p. 723.) The probative value of such evidence depended on
establishing the merits of the lawsuits notwithstanding the
settlement, and we concluded the trial court acted well within
its discretion to prevent “trials within a trial” that would have
required an undue investment of time and “might have
unreasonably distracted the jury.” (Ibid.)
No such similar complications accompanied the
presentation of Dr. Boone’s testimony, which was directly
related to relevant mitigating considerations. The trial court
indicated that it would not allow Dr. Boone to address Dr.
Humphrey’s reasons for using improper normative data and
could have further limited other potentially distracting
testimony that focused on Dr. Humphrey’s reputation rather
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than defendant’s test results and functioning. The defense
estimated that direct testimony would take under an hour. The
trial court anticipated that the prosecution response and other
issues related to the testimony would extend the time needed to
a matter of days. The trial court worried about having to excuse
jurors, but three alternate jurors were available to “guard
against the risk of a mistrial [had] a juror become unable to
serve.” (People v. Cottle (2006) 39 Cal.4th 246, 258; see also
§ 1089; Larios v. Superior Court of Ventura County (1979)
24 Cal.3d 324, 332 [no legal necessity for mistrial when
alternate juror is available].)
“ ‘A trial court’s exercise of discretion under [Evidence
Code] section 352 will be upheld on appeal unless the court
abused its discretion, that is, unless it exercised its discretion in
an arbitrary, capricious, or patently absurd manner.’ ” (People
v. Johnson (2019) 8 Cal.5th 475, 521.) When “a specific statute
affects the extent and nature of a trial court’s discretion, we
examine a trial court’s actions in light of the specific law bearing
on that discretion.” (People v. Rodriguez (2016) 1 Cal.5th 676,
685.) Section 190.3 expressly authorizes the presentation of
“any matter” relevant to mitigation, including “defendant’s
character, background, history, mental condition and physical
condition” (§ 190.3), and a trial court’s discretion to limit
mitigating evidence is informed by this broad charge (see People
v. Spencer (2018) 5 Cal.5th 642, 680). In this context, we
conclude the trial court’s exclusion of relevant, non-cumulative,
expert testimony about defendant’s mental condition was an
abuse of discretion.
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b. PET scan results
Defendant contends the trial court’s ruling excluding PET
scan evidence from the penalty phase denied her rights to
present a meaningful defense, to offer mitigating evidence, and
to a reliable sentence in violation of the Sixth, Eighth, and
Fourteenth Amendments.
Defense experts concluded that defendant’s PET scan
showed abnormality in regions of her brain that could affect her
judgment, memory, and ability to interpret data, among other
functions, and that impairment in those areas would be
consistent with defendant’s neuropsychological testing. In
arguing for the admission of PET scan evidence in the penalty
phase, the defense stated that “[w]e are not trying to present a
diagnosis of a particular mental illness or disease. [¶] . . . If
they feel sympathy for her because she has a defect or an
abnormality in her brain, even though, hypothetically, we could
not reliably show a connection with the crime or even her day-
to-day behavior, they could still feel sympathy for her.” The
prosecution objected to the evidence under Kelly and Evidence
Code section 352.
The trial court determined that the PET scan evidence
could be used only if scientific consensus recognized a reliable
correlation between the scan and a particular condition, and
that although mental and emotional conditions were admissible
under factor (k), the PET scan did not reliably show any such
condition. The trial court ruled that the evidence would also be
excluded under Evidence Code section 352 because it had little
probative value and would cause undue consumption of time
and confusion of issues.
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As we observed when addressing the exclusion of PET
scan results from the guilt phase, the evidence established that
PET scans had been used for decades to evaluate brain
abnormality. The trial court’s reliance on Kelly to exclude the
evidence from the penalty phase, as in the guilt phase, was
therefore error. We concluded the evidence of brain abnormality
had little probative value in the guilt phase because it was not
possible to associate it with any condition or behavior affecting
defendant at the time of the crime. The scope of mitigating
evidence admissible in the penalty phase differs, however, and
is “quite broad.” (Carasi, supra, 44 Cal.4th at p. 1313; see
§ 190.3.)
Thus, whether or not specifically related to her crime,
evidence of defendant’s brain damage was relevant in the
penalty phase (see People v. Smith, supra, 35 Cal.4th at p. 359),
and it would have contributed to defense efforts to portray
defendant as a woman of limited mental resources who broke
down in a time of adversity. “Because ‘at the penalty phase the
jury decides a question the resolution of which turns . . . on the
jury’s moral assessment,’ ‘[i]t is not only appropriate, but
necessary, that the jury weigh the sympathetic elements of
defendant’s background against those that may offend the
conscience.’ ” (People v. Spencer, supra, 5 Cal.5th at p. 680.)
Given “how circumscribed is the court’s discretion to exclude
evidence at the penalty phase” (id.), we conclude that the trial
court erred when it excluded defendant’s PET scan results.
c. Character witness testimony
Defendant contends the trial court erred in sustaining
objections to defense questioning of lay witnesses and thus
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excluded relevant mitigating testimony in violation of her
federal constitutional rights.
Defendant asserts the trial court erred by preventing
defense witnesses from telling the jury what they valued about
defendant. The trial court sustained relevance objections to
questions posed to three of defendant’s friends regarding what
they would miss about her and the value she brought to their
lives, and to questions for a jail chaplain and Albert Lucia
addressing whether defendant could be a help to others.
Defense counsel argued that such testimony was relevant under
section 190.3, factor (k), and that witnesses should be allowed to
express their feelings about defendant “as a friend, as a
companion.”
Evidence that a defendant “ ‘is loved by family members
or others, and that these individuals want him or her to live . . .
is relevant because it constitutes indirect evidence of the
defendant’s character.’ ” (People v. Rices (2017) 4 Cal.5th 49, 88.)
It was therefore error to exclude as irrelevant testimony that
witnesses valued defendant’s friendship and felt she had
potential to help others. (People v. Whitt (1990) 51 Cal.3d 620,
647 [questions were “not facially irrelevant” when the “range of
constitutionally pertinent mitigation is so broad”].)
The trial court also sustained objections based on
relevance when defense counsel tried to elicit testimony from
defendant’s friends that she was a nonviolent person and that
the crime was out of character for her. As we have noted,
however, “ ‘[t]he Eighth and Fourteenth Amendments require
the jury in a capital case to hear any relevant mitigating
evidence that the defendant offers, including “ ‘any aspect of a
defendant’s character . . . that the defendant proffers as a basis
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for a sentence less than death.’ ” ’ ” (People v. Rogers, supra,
57 Cal.4th at p. 346.) Character evidence regarding defendant’s
nonviolence was relevant in mitigation and it was error to
exclude it.
A chaplain from the jail testified about defendant’s
remorse. Defendant contends the trial court improperly
sustained relevance objections to questions supporting the
chaplain’s credibility — including how infrequently she testified
for the thousands of inmates to whom she ministered and
whether she believed in the death penalty. We agree. Such
questions were relevant and admissible (Evid. Code, §§ 210,
351, 780, subds. (c), (f), (j)) and should have been allowed.
2. Instructional error related to discovery violations
Defendant contends the trial court erred by finding that
the defense violated discovery obligations and by instructing the
jury to consider those alleged violations, and that these asserted
errors violated her statutory and constitutional rights. We
conclude that giving the instruction was indeed error.
Less than a week before the start of the penalty phase, the
defense for the first time provided contact information for eight
penalty witnesses, along with their corresponding statements
and documents, most of which were one to two years old.
Counsel explained that when the trial court excluded the PET
scan evidence from the penalty phase, the defense decided to call
additional witnesses, prompting the new disclosures. The trial
court found the explanation implausible and concluded the
defense had willfully delayed disclosure. The trial court stated
it would initiate contempt proceedings against defense counsel
for discovery violations and instruct the jury with CALJIC
No. 2.28 regarding the late disclosure.
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When the prosecutors subsequently notified the defense of
ten new witnesses, the trial court rejected defense counsel’s
request for a continuance to investigate them. Dismissing
counsel’s argument that the prosecution should be sanctioned
for late discovery, the trial court stated, “[M]aybe they will just
call Mr. Folden and Mr. Nieves, and these are people that you’ve
known about for two years.” Prosecutors later confirmed their
intention to call three of the new witnesses.
The trial court included CALJIC former No. 2.28 among
the penalty phase instructions, informing the jury as follows: “In
this case, the defendant failed to timely disclose the following
evidence: [¶] 1. The name and address of witnesses Lelia
Mrotzek and Lynn Jones. [¶] 2. The name and address and
statements of witnesses Shirley Driskell, Cindy Hall, Carl Hall,
Shannon North, Tammy Pearce and Tricia Mulder. [¶] . . . .
The weight and significance of any delayed disclosure are
matters for your consideration. [¶] However, you should
consider whether the untimely disclosed evidence pertains to a
fact of importance, something trivial, or subject matters already
established by other credible evidence.”
“A trial court’s discovery rulings are reviewed for abuse of
discretion. [Citation.] The trial court possesses the discretion
to determine what sanction is appropriate to ensure a fair trial.”
(People v. Mora and Rangel (2018) 5 Cal.5th 442, 466.) We
review for substantial evidence the trial court’s decisions
regarding compliance with discovery disclosure requirements.
(People v. Riggs, supra, 44 Cal.4th at p. 306.)
Preliminarily, we note that under section 1054.5 court
discretion to advise the jury about untimely disclosures is
conditional “upon a showing that the moving party complied
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with the informal discovery procedure.” (§ 1054.5, subd. (b).)
Here the record reflects late discovery disclosures by the
prosecution, the moving party — yet the record reflects no
explanation for that delay. The necessary showing of informal
discovery compliance by the moving party is not apparent.
Under these circumstances, it appears the trial court exceeded
its discretion by advising the jury of late disclosures.
The trial court erred by instructing the jury pursuant to
CALJIC former No. 2.28. The deficiencies we identified with the
instruction in the guilt phase were also present in the penalty
phase: the instruction was misleading by twice informing the
jury that “defendant” was at fault for delayed disclosure,
suggesting without evidence that the delay affected the
prosecution case, and by directing the jurors to consider
defendant’s unlawful conduct without guidance concerning how
it might legitimately affect their deliberations. (Thomas, supra,
51 Cal.4th at pp. 483–484.)
Defendant contends that by faulting her for discovery
violations during the penalty phase, the instruction also
impermissibly set forth a nonstatutory aggravating factor for
the jury’s consideration. We agree. “The penalty jury may
consider in aggravation only matters coming within one of
section 190.3’s factors.” (People v. Cordova (2015) 62 Cal.4th
104, 140.) Accordingly, “ ‘[a]ggravating evidence must pertain
to the circumstances of the capital offense (§ 190.3, factor (a)),
other violent criminal conduct by the defendant (id., factor (b))
or prior felony convictions (id., factor (c)); only these three
factors, and the experiential or moral implications of the
defendant’s age (id., factor (i)), are properly considered in
aggravation of penalty. . . . ’ ” (People v. Nelson (2011) 51 Cal.4th
198, 222.) The trial court therefore erred by using an instruction
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during the penalty phase that put before the jury bad acts
attributed to defendant but unrelated to statutorily permissible
considerations. (People v. Carter (2003) 30 Cal.4th 1166, 1202;
People v. Avena (1996) 13 Cal.4th 394, 439.)
Although we have engaged in harmless error analysis
concerning similarly erroneous instructions in the guilt phase
(Thomas, supra, 51 Cal.4th at p. 484; Riggs, supra, 44 Cal.4th
at p. 311), we have not addressed such error in the penalty phase
of a capital trial (cf. People v. Peoples, supra, 62 Cal.4th at
p. 767). Defendant argues that the instruction in the penalty
phase constitutes structural error, citing Sullivan v. Louisiana
(1993) 508 U.S. 275. In Sullivan, the high court ruled that
erroneous instruction on the meaning of “reasonable doubt”
deprived the defendant of a jury verdict on guilt, a structural
defect that “ ‘def[ied] analysis by “harmless-error” standards.’ ”
(Id. at p. 281.)
Regarding penalty phase errors, the high court has
condoned the use of harmless error analysis concerning
instructions that directed a jury to consider an invalid
aggravating factor (Clemons v. Mississippi (1990) 494 U.S. 738,
741; see also People v. Lewis (2008) 43 Cal.4th 415, 531), and we
have reviewed for harmlessness a trial court’s error in
instructing a penalty phase jury on witness credibility (People v.
Mitchell (2019) 7 Cal.5th 561, 587). The instructional error here
is akin to these circumstances and is not a structural error that
“rendered the trial ‘fundamentally unfair’ ” or was “ ‘necessarily
unquantifiable and indeterminate.’ ” (People v. Aranda (2012)
55 Cal.4th 342, 366, italics omitted.)
We consider the prejudicial effect of this instructional
error, and the errors we have identified in the exclusion of
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mitigating evidence, in the following sections concerning the
trial judge’s misconduct.
D. Judicial Misconduct
Defendant contends the trial judge was “impatient,
undignified, and discourteous” to the defense, engaging in
conduct that established bias and misconduct in violation of her
state and federal constitutional rights.10 The People argue that
the trial judge’s apparent intemperance must be viewed in light
of defense counsel’s “shenanigans,” and indeed, the judge
characterized the defense as “one of the most unprofessional
performances” he had ever seen. The trial judge’s response to
this challenge, however, failed to maintain the high standards
of fairness we demand.
We have cautioned that “[t]rial judges ‘should be
exceedingly discreet in what they say and do in the presence of
a jury’ ” (Sturm, supra, 37 Cal.4th at p. 1237) and their
comments “ ‘must be accurate, temperate, nonargumentative,
and scrupulously fair’ ” (id. at 1232). “ ‘Although the trial court
has both the duty and the discretion to control the conduct of the
trial [citation], the court “commits misconduct if it persistently
makes discourteous and disparaging remarks to defense counsel
so as to discredit the defense or create the impression it is
allying itself with the prosecution” [citation]. Nevertheless, “[i]t
is well within [a trial court’s] discretion to rebuke an attorney,
sometimes harshly, when that attorney asks inappropriate
questions, ignores the court’s instructions, or otherwise engages
in improper or delaying behavior.” ’ ” (People v. Woodruff (2018)
5 Cal.5th 697, 768.)
10
The trial judge is now deceased.
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As the following section details, the trial judge here
frequently employed a variety of strategies to properly manage
defense counsel’s noncompliance with court procedures.
Throughout the trial, however, the trial judge also made
inappropriately disparaging and sarcastic remarks to defense
counsel, impugning his performance, chastising him for
improper behavior, and sanctioning and citing him for contempt
in front of the jury.
The trial judge also directed improper comments and
questions to witnesses, openly doubting the credibility of one
defense expert by asking argumentative and hostile questions
and remarking on the possibility that another defense expert
“just doesn’t know what he’s talking about.” When confronted
with a juror who had been exposed to extrajudicial information
that was likely to enhance the credibility of a prosecution expert,
the trial court revealed the information to the entire jury. In
the penalty phase, the trial judge needlessly reprimanded and
belittled a lay witness who testified for the defense.
We conclude that this conduct by the trial judge reflects “a
pattern of disparaging defense counsel and defense witnesses in
the presence of the jury, and convey[ing] the impression that he
favored the prosecution,” and it therefore constitutes
misconduct. (Sturm, supra, 37 Cal.4th at p. 1238.) Although
the misconduct did not prejudicially affect the guilt
determination, we conclude that it was prejudicial in the penalty
phase and requires reversal of the penalty judgment.
1. Treatment of defense counsel
Defendant contends the trial judge committed misconduct
by expressing “deep hostility” toward defense counsel at the
outset of the case and making disparaging comments to him
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throughout the trial. The record shows that the trial judge spent
considerable effort attempting to control counsel’s disregard for
evidentiary rules and orders; it also reveals frequent
breakdowns in the trial judge’s composure as he faced this
challenge.
Although the trial judge’s admonishments to counsel were
often measured, he also made comments in front of the jury that
portrayed counsel as engaging in deliberately improper tactics,
wasting the court’s and jury’s time, purposely misleading the
jury, and engaging in unlawful conduct subject to sanctions and
contempt. As we have indicated, we must conclude that the trial
court’s persistent, discourteous commentary constituted
misconduct.
a. Background
At a break in defense counsel’s opening statement outside
the presence of the jury, the trial judge warned that much of the
statement was argument and the he would begin to sustain
objections on that basis if raised. After sustaining the first
objections, the judge sent the jury out to warn defense counsel
again that his opening statement was “way over the line as far
as argument.”
During the remaining two hours of the defense opening
statement, the trial judge sustained 15 of 18 objections to
improper argument. In the jury’s presence, the judge initially
reminded counsel to avoid argument with a brief comment:
“let’s confine ourselves to a statement of what you believe the
evidence will show, not argument.” When counsel continued to
draw objections, the judge became more pointed, exclaiming,
“that is pure argument. Stop it.” As the opening statement
continued, the judge became sarcastic — after counsel’s
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reference to evidence showing that defendant had demons to
overcome, the judge twice chided counsel by asking, “You’re
going to present evidence of a demon?”
Throughout the trial, the trial judge regularly but briefly
admonished defense counsel for violating the court’s rule
against speaking objections and for making other extraneous or
argumentative comments. When defense counsel failed to
observe the rules of evidence during his examination of
witnesses, the trial judge made periodic comments in front of
the jury to highlight proper legal parameters. The judge also
curtly admonished defense counsel to “move on” to a different
area of questioning on numerous occasions, including when:
counsel did not have related exhibits ready; after sustaining
objections to counsel’s questions; when evidentiary issues
needed to be resolved outside the presence of the jury; and when
the judge sought to limit topics he found cumulative or an undue
consumption of time.
In addition to regular, brief admonitions and other
comments to control defense counsel’s questioning and
presentation of evidence, the trial judge periodically expressed
general impatience and irritation with counsel’s courtroom
behavior with comments such as: “Why don’t you just ask a
simple question[?]”; “[D]on’t talk, except to ask a question”; “You
don’t listen do you?”; “Stop saying ‘ah’ every time you get an
answer”; “Don’t say ‘okay’ anymore”; “Just ask the question in a
proper way”; and “What does it take to get the point that you
can’t talk at the same time [as the witness?]”
At other times, the trial judge more pointedly portrayed
defense counsel as inept or wasting time: remarking, “[y]ou are
using valuable court time for something that doesn’t need to be
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used”; responding to counsel’s question about an exhibit number
by stating, “Look at the tag on the front; it might give you a
clue”; responding to counsel’s question that began, “I appreciate
the fact that . . .” with, “[w]hat your appreciation level is, is not
pertinent or helpful”; observing that defense could have done “a
little legwork” to develop the evidence “rather than doing some
kind of guessing game”; characterizing counsel’s “ridiculous
question” as appropriate only for “comic books or the movies”;
noting counsel was unprepared to examine witnesses;
exclaiming, “Why didn’t you say that when the jury was out?”;
referring to counsel’s “tongue wagging” and admonishing him to
“get on to something meaningful”; urging counsel, “if you get to
some questions that are proper, you might finish sooner rather
than later”; noting, “[i]f you thought there was going to be a
problem, you should have addressed it when we don’t have to
keep the jury waiting”; raising the court’s own objection to
counsel’s “nonsensical question”; commenting that the witness
cannot answer counsel’s question “unless he’s superman and has
x-ray eyes”; and exclaiming, “Can’t you figure that out before we
resume?”, among other comments.
The trial judge also reprimanded counsel in front of the
jury for offering improper comments and questions, often
referencing counsel’s violation of prior rulings: “If you don’t
understand my rulings, I’ll stop the examination now”; “I’ve
ruled on this in chambers . . . I will not permit you to question
him further”; “If I have to tell you one more time about no
speaking objections, we’re going to have a problem, you and I”;
“That is improper, and you know it”; “You don’t want to [read
the entire prior question to the witness], so I will to make sure
it’s accurate”; “Well, you’re wrong . . . just ask questions rather
than expressing your beliefs”; “[Counsel’s question is] in
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violation of the court’s order at the 402 hearing”; “I warned you
repeatedly that you’re not to make extrinsic comments”; “You’re
not to comment on the evidence, and don’t do it again”; You are
admonished not to editorialize[] or make gratuitous comments”;
“[Counsel’s questioning] contravenes the court’s prior ruling”;
“I’ve warned you repeatedly. Don’t editorialize. Don’t make
gratuitous comments”; “I have already advised you that you
can’t say that, and you’re disobeying a lawful court order”;
“[Counsel’s question is] false and misleading”; “[T]his is a
violation of the court’s order before the jury came in”; “[D]on’t
ask questions that call for irrelevant responses and are
improper questions”; “I warned you not to ask any questions
that call for hearsay”; and “I’ve warned you, [counsel]. You’re
not to make any statements in front of the jury. You’re not to
make speaking objections. You’re not to make comments.”
The trial judge made a point of telling jurors when counsel
had been reprimanded outside their presence for his conduct in
the courtroom — “He’s not supposed to do it[,] I admonished him
not to do it again” — and when the judge had concerns about
counsel’s discovery compliance. Although the trial judge later
decided to formally instruct the jury on discovery violations by
the defense, upon learning of late disclosures, he immediately
notified the jury of counsel’s potential wrongdoing, noting that
he would have to provide “further instructions on this discovery
noncompliance later on when the issues are more clarified,” and
stating, “I am going to have to make a decision on whether this
is a violation of the discovery rules.” After counsel lawfully
disclosed expert materials midtrial, the trial judge nonetheless
informed the jury that counsel’s “delay in the disclosure” was to
blame for a two-week continuance.
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Two times during defense counsel’s opening statement for
the penalty phase, the trial judge interrupted to reprimand
counsel in front of the jury. When defense counsel argued in his
penalty phase closing that defendant’s “personal background
and the manner and method which she was brought up by her
mother . . . is also a factor to consider in mitigation,” the trial
court sustained an objection that counsel misstated the law and
also remarked that “[t]he statement is a misstatement. The jury
will disregard it.” The following morning, concluding that the
defense improperly attempted to count each piece of mitigating
evidence as a separate statutory factor, the trial court further
instructed the jurors, informing them that defense counsel was
“wrong” to suggest that there were numerous “factors” involved
in factor (k) mitigating evidence.
Outside the jury’s presence, the trial judge took additional
measures to control what he viewed as improper behavior,
threatening to cut off defense questioning he deemed
inappropriate, requiring additional hearings to preview defense
evidence and testimony, and imposing sanctions. After repeated
warnings, the trial judge imposed a $500 sanction pursuant to
Code of Civil Procedure section 177.5 for defense counsel’s
speaking objections. The trial judge explained: “I rarely impose
sanctions on a lawyer, that is not my rule, generally. [¶] But I
have warned you over and over and over again in this trial no
speaking objections, and I don’t accept the proposition that you
don’t understand it. I do not accept the proposition that you are
incapable of complying with it. You’re not an inexperienced
attorney, you have trial skills, if you care to use them.”
The trial judge imposed six additional monetary sanctions
on defense counsel — one for a discovery violation, three more
for speaking objections, and two for commenting on testimony
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and evidence. After observing that the monetary sanctions had
no effect, the trial judge later cited counsel for contempt for
additional discovery violations and for commenting on the
evidence. 11
Some of the sanctions were levied in the presence of the
jury. In one instance, the trial judge imposed monetary
sanctions on counsel for violating a court order. In another,
after counsel disagreed with a witness, the trial judge informed
counsel, “I’m citing you for misconduct for making that
comment, and I’ll cite you later for contempt. . . . I have warned
you repeatedly about stating your opinion in front of this jury.”
In eight motions for mistrial and a motion to disqualify the
trial judge, the defense asserted judicial bias. Near the end of
the prosecution case-in-chief, defense counsel made an oral
motion for mistrial, in which he asserted that the trial judge
believed he was a liar and was therefore placing unfair
limitations on his cross-examination of witnesses. In another
motion for mistrial, defense counsel accused the trial judge of
having a “personal vendetta” against him and denying
defendant a fair trial. In subsequent motions and objections,
defense counsel claimed the trial judge: violated defendant’s
federal and state constitutional rights by demeaning and
showing animosity to the defense, among other misconduct;
limited and chastised the defense during examination of
witnesses while allowing the prosecution “excessive leeway”;
belittled counsel and referred to sanctions in front of the jury;
11
After the jury returned with a death sentence, the trial
court set aside all pending sanctions and contempt proceedings
against defense counsel, except the first, noting that “given the
jury’s verdict in this case, I think that’s probably enough.”
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made counsel look bad by reprimanding him in front of the jury;
and indicated to the jury that defense counsel’s comment about
access to a prosecution expert was “false and misleading.”
The defense also moved to disqualify the trial judge under
Code of Civil Procedure section 170.1, citing the requirement of
disqualification when “[a] person aware of the facts might
reasonably entertain a doubt that the judge would be able to be
impartial.” (Code Civ. Proc., § 170.1(a)(6)(A)(iii).) Citing his
authority to do so under Code of Civil Procedure section 170.1,
subdivision (c), the trial judge ordered the trial to continue
notwithstanding the motion.
The trial judge made it clear outside the jury’s presence
that he disapproved of defense counsel’s conduct. He believed
counsel was dishonest, refused to “play by the rules,” and was
trying to inject error into the case. Late in the trial, the judge
noted: “[I]f there was ever a case in my experience that stood for
a proposition that appellate courts have to give great deference
to the trial court’s ruling, this is the case, because if you read
the sterile record in this case, you don’t get the flavor of what
[counsel] is trying to do.”
b. Analysis
The People acknowledge that “there was indeed an
argumentative, contentious atmosphere during the trial
between [counsel] and the trial judge” but contend that because
the court was responding to defense counsel’s “relentless
gamesmanship” and efforts to inject error into the trial, the trial
judge cannot be viewed as having committed misconduct.12
12
The People do not assert forfeiture of misconduct claims
premised on the trial court’s allegedly disparaging treatment of
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Although the People focus at some length on defense counsel’s
conduct, our cases have never suggested that a trial court is
relieved of its obligation to remain temperate and impartial
when confronted with a lawyer’s provocative or improper
behavior.
A trial court’s “frustration and irritation at counsel’s
repeated efforts” to violate evidentiary rules can be viewed as
“ ‘friction between court and counsel, [that] while not desirable,
[is] virtually inevitable in a long trial.’ [Citation.]” (People v.
Blacksher (2011) 52 Cal.4th 769, 825.) Furthermore, “isolated
comments in a lengthy trial in which the court exhibited some
impatience with counsel’s argumentative comments and
questions do not demonstrate misconduct or bias.” (People v.
Woodruff, supra, 5 Cal.5th at p. 772; see also People v. Geier
(2007) 41 Cal. 4th 555, 614 [“four fleeting remarks” during
lengthy trial did not constitute judicial misconduct]; People v.
Bell (2007) 40 Cal.4th 582, 605 [“momentary and isolated
expression of irritation” did not indicate bias]; People v. Snow
(2003) 30 Cal.4th 43, 79 [“occasional impatience” with defense
questions did not convey bias].)
We do not fault the trial judge here for the brief
admonitions he gave to enforce court rules and procedures. And
defense counsel. Although defense counsel did not object to each
instance of claimed misconduct, or objected only generally, the
discord between the trial judge and defense counsel, and the
number of admonitions and remarks at issue, would have made
it “unfair to require defense counsel to choose between
repeatedly provoking the trial judge . . . or, alternatively, giving
up his client’s ability to argue misconduct on appeal.” (Sturm,
supra, 37 Cal.4th at p. 1237.) On this record, we conclude the
claim is preserved.
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some of the court’s expressions of impatience and frustration
with defense counsel might be excused as inevitable given the
demands of controlling what the trial judge viewed as an
exceptionally unprofessional performance. There are numerous
instances, however, in which the trial judge disparaged counsel
in a manner we cannot condone.
The trial court directed stern remarks and periodic
sarcasm toward defense counsel that impugned counsel’s
competence and “inevitably conveyed to the jury the message
that the trial court thought that defense counsel was wasting
the court’s — and the jury’s — time by asking inappropriate
questions.” (Sturm, supra, 37 Cal.4th at p. 1242.) Indeed, the
court commented on counsel wasting “valuable court time,”
referred to counsel asking “ridiculous” and “nonsensical”
questions, admonished counsel to move onto “meaningful”
matters, urged counsel to ask “proper” questions to save time,
and commented about counsel inconveniencing the jury.
This was not a case in which the trial court also expressed
sarcasm, impatience, and annoyance toward the prosecution,
which might have “indicat[ed] its comments were a matter of
personal style, not the result of a belief that any of the attorneys
was incompetent or that the defense case lacked merit.” (People
v. Abel (2012) 53 Cal.4th 891, 914; see also People v. Bell, supra,
40 Cal.4th 582, 605 [court made remarks critical of defense
counsel but also expressed annoyance at prosecutor]; People v.
Snow, supra, 30 Cal.4th at p. 79 [noting the trial judge
“frequently addressed the prosecutors in an equally brusque
manner”].) Instead, the trial court spared the prosecution such
treatment while “repeatedly and improperly disparaging
defense counsel, which conveyed to the jury the message that
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the court was allied with the prosecution.” (Sturm, supra, 37
Cal.4th at p. 1240.)
A trial court may not “impl[y] to the jury that defense
counsel was deliberately asking improper questions in order to
place inadmissible evidence in front of the jury.” (Sturm, supra,37 Cal.4th at p. 1240.) “ ‘It is completely improper for a judge to
advise the jury of negative personal views concerning the
competence, honesty, or ethics of the attorneys in a trial . . . .’
[Citation.] This principle holds true in instances involving a
trial judge’s negative reaction to a particular question asked by
defense counsel, regardless of whether the judge’s ruling on the
prosecutor’s objection was correct; even if an evidentiary ruling
is correct, ‘that would not justify reprimanding defense counsel
before the jury.’ ” (Ibid.)
Here, the trial judge not only reprimanded counsel for
posing improper questions, but, by referencing proceedings
outside the jury’s presence in which the court had ruled against
the defense, implied that counsel deliberately attempted to skirt
the court’s rulings. When the trial judge chastised counsel for
speaking objections and other extraneous comments, he
highlighted the repeated warnings and admonitions counsel had
violated, again conveying to the jury that counsel was flouting
court rules to inject impermissible matters into the trial. By
voicing concerns about counsel’s discovery compliance and
blaming counsel’s lawful disclosures for a delay in the
proceedings, the trial judge contributed to the impression that
he doubted counsel’s honesty and found his conduct improper.
The trial judge also commented concerning defense
counsel misstating the law during his penalty phase closing
argument and admonished the jury to disregard counsel’s
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statement that aspects of defendant’s background could be
considered mitigating. Focusing on counsel’s reference to
multiple “factors” to consider under section 190.3, factor (k),
instead of using the word “circumstances,” the trial court
informed the jury that counsel had been “wrong” to suggest that
each piece of evidence was a separate factor to consider.
Particularly when the jury was instructed with CALJIC
No. 8.88, which used “factor” and “circumstance” synonymously
in the course of addressing the consideration of aggravating and
mitigating evidence, the trial judge’s comments needlessly
suggested additional wrongdoing by defense counsel and
implied that the defense was trying to improperly inflate the
case in mitigation.
On a few occasions, the trial court directly accused counsel
of trying to place inaccurate or inadmissible evidence before the
jury, telling counsel, “That is improper, and you know it,”
referring to another of counsel’s representations as “false and
misleading,” and remarking that counsel did not want to provide
the jury with an accurate version of evidence. In his remarks in
the presence of the jury, the trial judge informed counsel that he
would be sanctioned and cited him for misconduct and contempt.
“Jurors rely with great confidence on the fairness of
judges, and upon the correctness of their views expressed during
trials. For this reason . . . a judge should be careful not to throw
the weight of his judicial position into a case, either for or
against the defendant.” (People v. Mahoney (1927) 201 Cal. 618,
626–627 (Mahoney).) With his disparaging commentary
regarding counsel’s performance, and “by accusing counsel of
unethical and unlawful conduct in front of the jury, the court
overstepped the bounds of propriety.” (People v. Banks, supra,
59 Cal.4th at p. 1203.) These were not “relatively brief and
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mild” references (People v. Melton (1988) 44 Cal.3d 713, 754) or
showings of “occasional impatience” (People v. Snow, supra,30 Cal.4th at p. 79), but persistent, discourteous, and improper
remarks that amounted to misconduct (Sturm, supra, 37 Cal.4th
at p. 1233).
Although we conclude that the trial court engaged in
misconduct, we do not agree with all of defendant’s contentions
regarding the court’s assertedly improper treatment of defense
counsel. As explained below, we reject some of defendant’s
claims in this regard.
Defendant contends the trial judge violated her federal
constitutional rights by unfairly curtailing defense questioning.
Defendant points to no state law error in the examples she cites
(People v. Linton (2013) 56 Cal.4th 1146, 1202; People v. Abilez
(2007) 41 Cal.4th 472, 503), and “ ‘ “[a] trial court’s numerous
rulings against a party — even when erroneous — do not
establish a charge of judicial bias, especially when they are
subject to review” ’ ” (People v. Buenrostro (2018) 6 Cal.5th 367,
405). Defendant also asserts that the trial judge admonished
the defense more frequently than the prosecution to “move on.”
than it did to the prosecution. “[A] numerical disparity between
sua sponte interventions . . . does not on its own constitute
misconduct.” (Sturm, supra, 37 Cal.4th at pp. 1241–1242.) The
remarks, which the trial judge also made to the prosecution,
were within the court’s discretion in controlling the conduct of
the trial. (People v. Snow, supra, 30 Cal.4th at p. 79.)
We also reject defendant’s argument that the trial judge
showed bias by assertedly treating the defense and prosecution
unequally in witness scheduling, discovery compliance, and
expert funding. The trial judge played no role in defense expert
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funding (Pen. Code, § 987.9, subd. (a)), and his other rulings are
not sufficient to establish judicial bias, particularly when they
are subject to review (People v. Buenrostro, supra, 6 Cal.5th at
p. 405). We have separately addressed defendant’s claims
regarding discovery, and defendant does not assert error in the
court’s rulings regarding witness scheduling.
Defendant argues the trial court exhibited bias by having
ex parte communications with the prosecution about disclosure
obligations regarding impeachment evidence and brief
exchanges concerning the order of witnesses, the status of sealed
material, and prosecution expert funding. In People v.
Thompson (2016) 1 Cal.5th 1043, noting that section 1054.7
“contains no express prohibition on ex parte hearings,” we
concluded there was no violation of state law when the trial
court held an ex parte hearing to address discovery obligations,
as the court did here. (Id. at p. 1099.) Although defendant
contends the trial judge improperly advised the prosecution on
discovery obligations, “[t]he judge’s fleeting comment was at
most a suggestion, rather than the rendition of advice.”
(Mendoza, supra, 24 Cal.4th at p. 197.) The ex parte discussion
of impeachment evidence related to a defense expert who never
testified, and other issues briefly addressed were not improper.
(Ibid.)
2. Treatment of witnesses
Defendant contends the trial judge engaged in misconduct
and violated her federal constitutional rights when: he
assertedly disparaged defense experts Drs. Humphrey, Ney,
Plotkin, and Suiter, and lay witness Carl Hall; “glamorized” a
prosecution expert; and humiliated defendant when she was on
the stand. We agree that some of the trial judge’s remarks and
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questions were improper — those regarding Drs. Plotkin and
Ney, Carl Hall, and the prosecution expert — and reject
defendant’s other claims.
a. Background
i. Dr. Plotkin
Dr. Plotkin testified for the defense that a diet drug and
antidepressant interaction could have provoked a seizure that
impaired defendant’s volitional functioning at the time of the
fire. On cross-examination, Dr. Plotkin explained that he
conducted a search of medical literature, a “PubMed” search,
and found a number of articles indicating, contrary to testimony
by a prosecution expert, that the diet drug and antidepressant
interaction could cause “serotonin syndrome,” which in turn
could result in seizures. Echoing the prosecutor, the trial court
stated, “[a] lot of these PubMeds deal with rats and monkeys
and other animals other than humans, correct?”
When Dr. Plotkin explained that a “volume of literature”
documented the drug interaction resulting in serotonin
syndrome, the trial court interrupted and the following
exchange occurred:
“The court: Wait, Wait. Please. [¶] When you say that
you found volumes of articles, do you mean to say that you found
volumes of abstracts of articles?
“The witness: That’s correct.
“The court: And you haven’t read any of the articles
themselves; is that correct?
“The witness: Right. All from the same search. . . .
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“The court: Didn’t you see when you were online on the
internet that you can simply log on and order the document by
e-mail[?]
“The witness: Well, I did this Saturday.
“The court: Didn’t you see that when you were online that
all [sic] do you have do is log on and become a user and you can
order the articles online? [¶] Did you see that?
“The witness: I don’t think you can log on on a Saturday
to become a user. But it didn’t phase [sic] me to do that. I had
enough data, I felt, to make that opinion. . . . The [prosecution]
expert testified that he based his opinion on a PubMed search
and not reading articles which explained it. . . .
“The court: But he is a board certified toxicologist, correct?
“The witness: This is about serotonin syndrome. . . . He’s
not an expert in that.”
In further cross-examination, the prosecutor asked Dr.
Plotkin to confirm that it was a “medical certainty” that
defendant did not have serotonin syndrome, noting that a Dr.
Ordog had examined her at the time of the fire and ruled out the
syndrome. Dr. Plotkin observed that the only evidence about
Dr. Ordog’s opinion was that two years after the fire a
prosecution expert, Dr. Phillips, testified that he spoke to Dr.
Ordog, who claimed to have ruled out serotonin syndrome. The
trial court then intervened:
“The court: Well, why would you assume that Dr. Ordog is
making something up two years later?
“The witness: Your Honor, that’s absolutely not what I
said.
“The court: Well, what are you saying?
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“The witness: I am saying that in my reading of Dr.
Ordog’s notes, at the time it was not considered in the
differential. [¶] So how can I say that he ruled it out at the
time?
“The court: But how do you know that Dr. Ordog doesn’t
have an independent recollection of what happened that may
not be reflected in [his] notes?
“The witness: As I said before, I believe that Dr. Phillips
in good faith represented his conversation with Dr. Ordog, who
said two years later that he ruled it out. . . . But I am saying
here that I — that how can you say that a hundred percent, if I
am a third party in this?”
The prosecutor later asked Dr. Plotkin a series of
questions about his failure to personally interview defendant,
despite his ethical obligations to strive to do so. When Dr.
Plotkin explained that it would have been best to interview
defendant but he did not have enough time, the trial court
asked, “Then why did you accept the appointment?” Dr. Plotkin
stated that in retrospect he should not have taken the
appointment, in part because “the defense experts have been
suggested as liars to begin with, and had I known that, I
wouldn’t have taken on the personal insults the way I have.”
On redirect, Dr. Plotkin testified that after a seizure a
person would experience a state of delirium; he believed the
defense expert Dr. Ney misspoke when he referred to the effect
of a seizure as “dissociation.” The trial court then interrupted,
and the following exchange occurred:
“The court: When you say you believed he misspoke, you
never talked to him, did you?
“The witness: No. From reading his testimony.
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“The court: For all you know, he said exactly what he
meant to say and he just doesn’t know what he’s talking about.
[¶] You don’t know that, do you?
“The witness: That’s correct. . . .
“The court: So why don’t you confine your answers to that,
and don’t assume what is in Dr. Ney’s mind if you’re [sic] never
talked to the man.”
The trial court also reprimanded Dr. Plotkin outside the
presence of the jury; after Dr. Plotkin remarked that he had not
been allowed to explain his answers, the trial court threatened
to have him removed from the county panel of approved experts.
ii. Dr. Ney
During cross-examination, the prosecutor attempted to
impeach Dr. Ney by referencing his prior testimony that he had
not previously qualified as an expert on relevant topics. In
response to repeated defense objections to the questioning, the
trial court advised the prosecutor to “just ask a direct question,
and if it’s inconsistent then you can impeach him with the
transcript.” After Dr. Ney gave equivocal answers to questions
about his qualifications, the trial court allowed the prosecutor
to read the prior testimony in which Dr. Ney acknowledged that
he had never qualified to testify as an expert concerning
epilepsy, neurology, or carbon monoxide poisoning.
Dr. Ney gave evasive responses to many other prosecution
questions and denied or claimed not to remember making
statements in his report and prior testimony. Prosecutors
accused Dr. Ney of making inappropriate faces and gestures
while testifying, and the trial court admonished him to stop
mumbling to himself on the stand. Dr. Ney’s testimony about a
variety of unusual conditions was disjointed, with many
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nonresponsive tangents, and appeared to suggest inconsistent
theories concerning defendant’s behavior. Some of his claims
strained credulity: he testified that some dissociation could go
on for months, during which time a person could unknowingly
travel or take a job; he also maintained that abortion interfered
with a mother’s instinct to protect her offspring and made her
more likely to kill her other children.
During a hearing on discovery matters held outside the
presence of the jury, the trial court asked Dr. Ney questions
regarding his affiliation with “pro-life” organizations and later
marked as a People’s exhibit three items from the internet that
referenced Dr. Ney’s work, which the court found when
researching Dr. Ney’s background. In another hearing outside
the jury’s presence, the trial court threatened to have Dr. Ney
arrested after learning of suggestions that he might not return
to court to testify as ordered.
iii. Dr. Humphrey
Dr. Humphrey testified on cross-examination that she
used nonstandard normative data for one of the tests she
administered; she explained that the unpublished data was new
and that she had obtained it from the test authors. During her
testimony, the trial judge admonished Dr. Humphrey three
times to refrain from interrupting the prosecutor’s questions
before he sent the jury out and informed her that he would
impose sanctions against her if she did not stop interrupting.
At a hearing regarding her normative data held outside
the jury’s presence, Dr. Humphrey acknowledged that the data
was not new, as she had testified. She nonetheless defended her
reliance on the data, claiming that one of the test authors, Dr.
Satz, had recommended it to her. When the prosecutor’s
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questioning suggested that Dr. Humphrey might be
contradicting Dr. Satz’s version of events, the trial court
warned, “If you’re not sure, you can say that. But if you
specifically deny that and it’s not true, you have a problem.” The
trial court ordered Dr. Humphrey to leave the courtroom before
a prosecution expert testified that Dr. Satz had denied making
any suggestion to Dr. Humphrey regarding the use of
unpublished data.
At the conclusion of the hearing, the trial court asserted
that Dr. Humphrey was “an out-and-out liar” and stated that he
found her explanations “inherently unbelievable.” The court
concluded it was “clear” that Dr. Humphrey had committed
perjury and if she testified further the prosecution might want
to have someone from Attorney General’s office present to avoid
a conflict in prosecuting her. The court added that if Dr.
Humphrey returned to testify, “[m]aybe someone wants to
advise her of her right to have an attorney present. I am not
going to do that, because I don’t want to interfere with the
defense and dissuade a witness, and that’s one of the reasons I
asked her to step outside.”
On rebuttal, the prosecution expert highlighted a number
of mistakes in Dr. Humphrey’s report and recounted
information from the hearing that had occurred outside the
jury’s presence, explaining that the data Dr. Humphrey
characterized as new was in fact outdated and that Dr. Satz and
another test author had refuted Dr. Humphrey’s claim that they
had advised her to use nonstandard normative data. Although
the defense had planned to reopen Dr. Humphrey’s testimony,
she did not return to testify for any portion of the trial.
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At the penalty phase, the defense made an offer of proof
regarding testimony by a new neuropsychologist, Dr. Boone,
arguing that Dr. Boone was needed to rehabilitate Dr.
Humphrey’s psychological testing because the prosecution had
so undermined her competence and integrity before the jury.
The defense also represented that the circumstances of Dr.
Humphrey “being called a liar and a perjurer, and the distress
she was in over all of that” prevented the defense from relying
on her further as a witness.
iv. Defendant’s testimony
On cross-examination, defendant testified that she did not
remember seeing her deceased daughters on the kitchen floor
and thought they were asleep. She remembered going into the
backyard after the fire, which she would have accessed by going
through a sliding door near the kitchen. The prosecution
attempted to challenge defendant’s testimony by showing her
photographs of the victims that reflected how she would have
had to step over their bodies to go through the sliding door.
Defendant testified that she did not remember stepping over her
children. When she would not turn to look at the display of
photographs, the trial court ordered, “Put it in front of her then.”
After defense counsel objected to the placement of the
photographs, the court responded, “All right. Put it back on the
board. [¶] Miss Nieves, you’re ordered to turn around and look
at the photographs.” When defendant again refused, stating, “I
am not looking at my children if they’re dead,” the court
reiterated, “I am ordering you to turn around and look at the
photos.” When defendant would not comply, the court sent the
jury out and ordered defendant to look at the photographs and
be questioned regarding them or be found in contempt of court.
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The court denied counsel’s request to allow defendant a moment
to compose herself before bringing the jury back in.
When cross-examination resumed, defense counsel
objected to the form of the prosecutor’s cross-examination and
her continued reference to photographs of the victims. The court
overruled the objections and denied counsel’s request for a
recess due to defendant being distraught. The prosecutor then
ended her examination and the jury was excused.
v. Dr. Suiter
Dr. Suiter was the court-appointed expert in defendant’s
divorce and custody proceedings. During the penalty phase, he
testified about evaluating defendant and her family and the
bases for his recommendation in 1997, approximately a year
before the crime, that she receive custody of her children.
On cross-examination, the prosecution tried to impeach
facts that defendant provided to Dr. Suiter during his
evaluation, such as her high school grades. The trial court
sustained an objection to the relevance of one such question and
interposed its own objection to another, stating: “How would he
know that? There is no foundation.” After sustaining another
objection to similar questioning, the court stated, “He’s here to
talk about what happened in 1997,” and to Dr. Suiter added,
“[Y]ou don’t have a crystal ball, do you?”
The trial judge then questioned Dr. Suiter himself,
reminding Dr. Suiter of defendant’s conviction for killing four of
her children and asking: “[Y]ou would probably want to change
your opinion made back in 1997, wouldn’t you, if you could do
it?” The trial judge appeared surprised when Dr. Suiter said he
would not change his opinion, responding, “You wouldn’t?” Dr.
Suiter explained that he stood by his recommendation, which
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was based on the data available to him at the time. The trial
judge then instructed the prosecutor to “get on to something
else.”
When the prosecutor continued to ask whether
defendant’s high school record might cause Dr. Suiter to change
his 1997 opinion, the trial court sent the jury out and
admonished the prosecutor to stop the line of questioning:
“I asked him the most extreme question and it doesn’t change
his opinion. So anything subsidiary to that, that’s argument.”
The trial court added, “[T]he point is . . . this jury is getting tired
of hearing evidence. Let’s just get on with it. A lot of this
examination is unnecessary.”
In response to a subsequent prosecution question
concerning whether he was afraid of being sued for his custody
recommendation, Dr. Suiter responded: “No. . . . I had no
crystal ball. . . . I mean, of course anybody in retrospect, I would
think, would not have the children present with the mother at
all . . . given what happened. [¶] But again, as I stated earlier,
given the data that I had at the particular time, I am confident
of my recommendation. [¶] There was not even any appreciable
complaint about the mother on the part of Mr. Folden.”
The prosecution, which had aggressively sought to prevent
the introduction of Folden’s statements about defendant’s
parenting, quickly moved to strike Dr. Suiter’s final comment as
nonresponsive. The trial court responded to the prosecutor, “Yes
it is, [counsel]. It is overruled.” Noting Dr. Suiter’s confusion at
the interruption, the court assured him, “You didn’t do anything
wrong. [¶] Have you finished your answer?” The court then
allowed Dr. Suiter to further explain: “There were no
allegations made to me by Mr. Folden that the children were at
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any risk [from] being with their mother in terms of being
physically harmed. Those were not the elements of the
evaluation as, quite frankly, is often the case.”
vi. Carl Hall
During Hall’s penalty phase testimony about his
friendship with defendant, the trial court struck several of his
answers as nonresponsive or irrelevant and admonished Hall
not to expound on his answers: “I think you’ve answered the
question”; “If the answer calls for yes or no, just try to answer it
that way, okay?”; and finally, “Look, just answer the question.
Don’t add all the other information, okay?” After Hall again
began a nonresponsive answer, the trial court sent the jury out
and told Hall, “If you answer another question like you just did
. . . and try to get before this jury improper evidence that I’ve
already ruled upon, I will hold you in contempt of court, put you
in jail for five days, fine you up to $1,000 or impose monetary
sanctions of up to $1,500. . . . Do you understand that?”
When the jurors returned, the trial court informed them,
“The last statement of the witness was stricken, and I have
admonished the witness not to get anything else before the jury
that is not responsive to the question.” When Hall resumed
testifying, he began to answer a question while an objection was
pending. Defense counsel advised Hall, “You have to wait,” and
the trial court added, “Do you understand when there’s an
objection, you’re not supposed to answer the question? [¶] Do
you understand that?” When Hall answered, “Okay,” the trial
court continued: “Then why did you just make that response
when there was an objection raised? [¶] Why did you just make
that response when there was objection? [¶] You don’t know do
you?” Hall stated that he was very nervous.
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During cross-examination, Hall testified that defendant
would not have killed her children if she were in her right mind.
The prosecutor twice asked who suggested defendant was not in
her right mind without receiving a direct answer, after which
the trial court interjected, “Why don’t you just answer the
question. [¶] Who told you that?” When Hall replied, “Nobody
told me,” the trial court remarked, “[T]hen why didn’t you just
answer the question that way?”
vii. Prosecution expert
John Dehaan testified as a fire reconstruction expert for
the prosecution. During that testimony, Juror No. 7 relayed to
the bailiff that he recognized Dehaan from a television program,
possibly on the Discovery Channel, but that it would not
influence how he viewed Dehaan’s testimony. The bailiff wrote
a note to the court conveying this information.
At the conclusion of Dehaan’s testimony, in the presence
of the jurors, the trial court asked Dehaan whether he had
appeared on the Discovery Channel. Dehaan replied
affirmatively, adding he had also appeared on the Fox Family
Channel. The court then excused all jurors save Juror No. 7 and
elicited the juror’s assurances that he would not be influenced
by recognizing Dehaan on television. Defense counsel objected
to the court questioning Dehaan, argued it suggested a pro-
prosecution bias, and moved for a new trial, which the trial court
denied without comment.
The prosecution later advised the court that Dehaan was
scheduled to appear on the Fox Channel the following day. At
the end of the day, the court told jurors, “[T]here’s going to be a
program [on television] that involves one of the witnesses who
has testified in this case.” The court ordered jurors not to watch
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the Fox Channel at 9:00 p.m. the next day, or to otherwise “get
information from anybody else that may have looked at it. Just
avoid it at all costs.”
b. Analysis
We reiterate that judicial questioning and comment
during witness testimony should be “temperate rather than
argumentative.” (People v. Cook (1983) 33 Cal.3d 400, 408.)
“A trial court has both the discretion and the duty to ask
questions of witnesses, provided this is done in an effort to elicit
material facts or to clarify confusing or unclear testimony.
[Citations.] The court may not, however, assume the role of
either the prosecution or of the defense” and “it must not convey
to the jury the court’s opinion of the witness’s credibility.”
(People v. Cook (2006) 39 Cal.4th 566, 597; see also Sturm,
supra, 37 Cal.4th at p. 1238.)
Defendant asserts the trial court’s questioning
undermined Dr. Plotkin’s testimony and improperly assisted the
prosecution. The People contend defendant forfeited this claim
by failing to object at trial. By the time Dr. Plotkin testified,
however, the trial court had denied six defense motions for
mistrial based on the court’s asserted bias against the defense,
and it was proceeding with trial while the defense motion to
disqualify the court was pending. In this context, we agree with
defendant that additional objections likely would have been
futile. (Sturm, supra, 37 Cal.4th at p. 1237.)
The trial court’s initial question to Dr. Plotkin about his
PubMed searches underscored the prosecutor’s point that
research articles supporting the defense were not based on
human studies, a point of clarification within the court’s
discretion to elicit. It was strikingly inappropriate, however, for
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the court to disparage Dr. Plotkin’s review of online literature
with repeated, argumentative questions about the ease with
which he could have downloaded articles (Sturm, supra,37 Cal.4th at pp. 1238–1239), and to do so by making personal
observations about access to articles on the PubMed website —
facts that had not been presented to the jury (People v. Abel,
supra, 53 Cal.4th at p. 917 [trial court erred by using personal
knowledge to comment on testimony]; People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 323 [same]). In response to Dr.
Plotkin’s observation that the prosecution expert had also relied
on abstracts of research, the trial court’s comment, “[b]ut he is a
board certified toxicologist,” implied the court’s belief that the
prosecution expert had greater expertise than Dr. Plotkin and
contributed to the impression that the court discounted Dr.
Plotkin’s testimony.
The trial court’s questions posed to Dr. Plotkin about Dr.
Ordog, rather than merely clarifying testimony, reprimanded
Dr. Plotkin for questioning the prosecution evidence. When Dr.
Plotkin cited a lack of contemporaneous documentation for Dr.
Ordog’s conclusions, the court’s response — “how do you know
that Dr. Ordog doesn’t have an independent recollection of what
happened that may not be reflected in [his] notes?” — was
accusatory, disparaging, and a pointed defense of the
prosecution’s evidence. By contrast, the trial court’s remarks
about Dr. Ney — “[f]or all you know, he said exactly what he
meant to say and he just doesn’t know what he’s talking about”
— were highly improper, both harsh and demeaning to Dr.
Plotkin and blatantly contemptuous of Dr. Ney. If there were
any question about the tenor of the trial court’s remarks, Dr.
Plotkin’s unchallenged comment that defense experts had been
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made out to be liars provided further indication of their hostile
and disparaging impact.
The trial court also improperly chastised and demeaned
penalty phase witness Carl Hall. The People claim that Hall
was a “recalcitrant witness” whose behavior the trial court
properly attempted to control. It is not clear why the court
believed Hall attempted to flout a prior ruling limiting his
testimony, but it was improper for the court to tell the jury that
it had admonished Hall “not to get anything else before the jury
that is not responsive to the question.” (See Sturm, supra,37 Cal.4th at p. 1239.) It is also not apparent whether Hall
understood he should refrain from testifying while an objection
was pending, but we see no reason for the trial court to berate
him for it in front of the jury. “The court’s questioning must be
‘ “temperate, nonargumentative, and scrupulously fair” ’
[citation], and it must not convey to the jury the court’s opinion
of the witness’s credibility.” (People v. Cook, supra, 39 Cal.4th
at p. 597.) The trial court’s failure to maintain such composure
when addressing Hall was improper.
Defendant contends the trial court improperly
“glamorized” prosecution expert John Dehaan, demonstrating a
pro-prosecution bias. The trial court was addressing a
circumstance in which a juror had been exposed to extraneous
facts about Dehaan’s credentials that may have added to his
credibility. (Cf. In re Richards (2016) 63 Cal.4th 291, 313.) Our
cases establish that a “juror’s ‘receipt of information about a
party or the case that was not part of the evidence received at
trial,’ ” even if “passive or involuntary,” constitutes juror
misconduct. (People v. Cowan (2010) 50 Cal.4th 401, 507.)
Rather than simply dispel any potential prejudice from the
juror’s inadvertent exposure (People v. Linton, supra, 56 Cal.4th
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at p. 1213), the trial court elicited and highlighted Dehaan’s
television appearances for the entire jury, a matter unnecessary
to the clarity or completeness of his testimony. In this context,
the trial court’s questioning of Dehaan was improper, “even if no
impropriety was intended.” (People v. Geier, supra, 41 Cal.4th
at p. 614.)
Defendant advances additional claims about the trial
court’s allegedly improper treatment of defense witnesses. We
find no merit in defendant’s remaining contentions.
Defendant argues that the court’s treatment of the defense
neuropsychologist, Dr. Humphrey — particularly, the
suggestion the court made outside the presence of the jury, that
she committed perjury — prevented her from returning to
testify and thus violated defendant’s right to present a defense.
“The government violates a defendant’s constitutional right to
compulsory process when it interferes with the exercise of a
defendant’s right to present witnesses on [her] own behalf.”
(People v. Capers (2019) 7 Cal.5th 989, 1008.) Our cases require
a defendant to show that interference was “egregious and
improper” (People v. DePriest (2007) 42 Cal.4th 1, 55), “was a
substantial cause of [the] witness’s refusal to testify,” and “ ‘at
least a reasonable possibility that the witness could have given
testimony that would have been both material and favorable.’ ”
(Capers, at p. 1008). Defendant does not meet this burden.
Defense counsel offered two reasons why he did not bring
Dr. Humphrey back to testify. First, the prosecution
questioning and rebuttal — which showed that she used
incorrect data, was apparently dishonest about it, and made
other mistakes and omissions in her report — undermined Dr.
Humphrey’s credibility to the extent that she could not
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effectively defend her testing and conclusions before the jury.
Second, Dr. Humphrey was distressed by the trial court’s
suggestions that she had lied and committed perjury.
It is not apparent on this record that the trial court’s
remarks were “a substantial cause” for Dr. Humphrey’s failure
to return to testify for the defense. (People v. Capers, supra,
7 Cal.5th at p. 1008.) Moreover, considering defense counsel’s
observation that the prosecution successfully impeached Dr.
Humphrey’s credibility with the jury, defendant has not
established that the trial court’s remarks “deprived defendant
of beneficial testimony.” (People v. DePriest, supra, 42 Cal.4th
at p. 56.) We thus see no reasonable possibility that further
testimony by Dr. Humphrey would have been favorable to the
defense, notwithstanding any impropriety in the trial court’s
remarks or their possible role in deterring her testimony.
(People v. Capers, supra, 7 Cal.5th at p. 1008.)
Defendant asserts the trial court committed misconduct
when it threatened Dr. Humphrey and other defense witnesses.
The trial court’s threat of sanctions and comments regarding Dr.
Humphrey’s veracity took place outside the presence of the jury,
as did its threats to Dr. Ney, Dr. Plotkin, and Hall. Although
several of the remarks were excessively punitive, we cannot
conclude that they amounted to misconduct when the record
does not demonstrate how they might have influenced the jury
or otherwise affected the trial. (People v. Peoples, supra,
62 Cal.4th at p. 790.)
For similar reasons, we reject defendant’s claim that the
trial court’s research into Dr. Ney’s views on abortion was
misconduct. Each of the cases defendant cites in support of her
argument addressed a judicial officer injecting extrajudicial
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evidence into key fact finding, a circumstance not present here.
Although the trial court marked material it found as People’s
exhibits, they were not received into evidence and there is no
indication the court’s research and questioning outside the
presence of the jurors affected their consideration of Dr. Ney’s
testimony or other matters in the trial. (People v. Peoples, supra,
62 Cal.4th at p. 790.)
Defendant claims the trial court’s comment about
impeaching Dr. Ney’s testimony suggested to the jury that Dr.
Ney might lie on the stand. The People argue that defendant
forfeited the claim by failing to object at trial. Even if the claim
were preserved, we would conclude that it lacks merit. It was
not improper for the trial court to make a single remark to
forestall additional objections by the defense and oblige the
prosecutor to lay a foundation for impeaching Dr. Ney. (People
v. Monterroso (2004) 34 Cal.4th 743, 783; People v. Melton,
supra, 44 Cal.3d at p. 736.)
Citing Deck v. Missouri (2005) 544 U.S. 622, 630, and
other shackling cases, defendant argues that when the trial
court ordered her to look at a photo of her deceased children the
court undermined her dignity and presumed innocence by
“figuratively pointing” to her guilt in a manner akin to visibly
shackling her in front of the jury. Defendant does not claim any
error regarding the prosecutor’s questions and use of
photographic evidence but argues that it was improper for the
trial court to order her to respond to them when there were “less
cruel” ways of eliciting the same information. We do not
condone the trial court’s harsh tenor in addressing defendant’s
apparent distress. Once defendant became a witness, however,
the prosecution could attempt to impeach her credibility by
confronting her with photographic evidence (cf. People v. Batts
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(2003) 30 Cal.4th 660, 693), defendant had a “duty to testify in
accordance with the rules of evidence,” and it was within the
trial court’s discretion to enforce that duty (People v. Smith
(2003) 30 Cal.4th 581, 624; see also § 166, subd. (a)(6); § 1044).
Defendant also contends that during cross-examination of
her penalty phase expert, Dr. Suiter, the trial court intervened
to assist the prosecution and interfered with defendant’s ability
to present mitigating evidence. The People argue that
defendant forfeited this claim by failing to object to the trial
court’s question. Assuming the issue was preserved, we find no
impropriety.
Although the trial court’s question — whether Dr. Suiter
would want to change his 1997 opinion in light of the charges
against defendant — might appear dismissive of the doctor’s
prior opinion, it is not improper when viewed in context. (People
v. Boyette (2002) 29 Cal.4th 381, 460.) “While it is ordinarily the
better practice for the trial court to let counsel develop the case,
a trial court properly may ‘undertake the examination of
witnesses . . . when it appears that relevant and material
testimony will not be elicited by counsel.’ ” (People v. Guerra,
supra, 37 Cal.4th at p. 1125.) Here, where the prosecutor
appeared poised to exhaustively challenge Dr. Suiter’s prior
opinion with minor details such as defendant’s high school
grades, the trial court’s effort to reframe the point directly and
limit argumentative questioning was not improper. (Ibid.;
People v. Nguyen (2015) 61 Cal.4th 1015, 1061.)
The trial court ultimately limited prosecution efforts to
impeach Dr. Suiter, allowed him to strengthen the basis for his
1997 recommendation by referencing the absence of complaints
about defendant’s parenting, and provided him an opportunity
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to reiterate the court’s point that he did not have a “crystal ball”
and to acknowledge the obvious, that he would not have made
the same recommendations if he had known defendant would
kill her children. In all, the result underscored Dr. Suiter’s
professionalism and bolstered his testimony that defendant
appeared to be a suitable caretaker before the fire.
3. Structural error
Defendant contends the trial judge’s conduct reflected bias
and constitutes structural error. 13 “ ‘A criminal defendant has
due process rights under both the state and federal
Constitutions to be tried by an impartial judge.’ ” (People v.
Peoples, supra, 62 Cal.4th at p. 788.) Establishing a violation of
this right requires “an objective assessment of the
circumstances in the particular case” and “ ‘ “the probability of
actual bias on the part of the judge or decisionmaker [that] is
too high to be constitutionally tolerable.” ’ ” (Freeman, supra, 47
Cal.4th at p. 996; Rippo v. Baker (2017) ___ U.S.___ [137 S.Ct.
905, 907]; Peoples, at p. 788.) “[I]t is the exceptional case
presenting extreme facts where a due process violation will be
found.” (Freeman, at p. 1005.)
13
In addition to asserting violation of her constitutional
rights, defendant references her statutory right under Code of
Civil Procedure section 170.1. This statutory right to
impartiality is raised through a motion to disqualify an
assertedly biased judge (Code Civ. Proc., § 170.6), the resolution
of which is reviewable only by writ of mandate (Code Civ. Proc.,
§ 170.3, subd. (d)). (People v. Peoples, supra, 62 Cal.4th at
p. 786; People v. Freeman (2010) 47 Cal.4th 993, 999–1000.)
(Freeman).) Because section 170.3, subdivision (d) provides the
exclusive procedure for resolving statutory claims, we address
only defendant’s constitutional due process contention.
(Peoples, at p. 787.)
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The “controlling principle” of unconstitutional bias rests
on a “general concept of interests” that may prevent
adjudicators from remaining “ ‘disinterested in the conviction or
acquittal of those accused.’ ” (Caperton v. A. T. Massey Coal Co.
(2009) 556 U.S. 868, 878, 880; see also Freeman, supra, 47
Cal.4th at p. 1005.) Though traditionally focused on pecuniary
influences (Freeman, at pp. 1001–1002), the high court has
explained that there may be a disqualifying interest in the
outcome of criminal proceedings that “rests on the relationship
between the judge and the defendant.” (Caperton, at p. 881.) A
judge would be unlikely to remain neutral, for example, when
presiding over criminal contempt proceedings involving a
defendant with whom the judge had a “ ‘running, bitter
controversy.’ ” (Ibid.) Appellate opinions we cited in Freeman
provide additional examples of bias that reflect a judge’s
relationship to the parties before it (Freeman, at p. 1006, fn. 4):
in those cases, trial judges made inappropriate comments about
women, in cases decided against women (Catchpole v. Brannon
(1995) 36 Cal.App.4th 237; In re Marriage of Iverson (1992) 11
Cal.App.4th 1495), about lawyers, when the defendant was an
attorney (Hall v. Harker (1999) 69 Cal.App.4th 836, 840–841),
and about noncitizens, when one party was a foreign national
(Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 460–461).
We therefore consider whether the trial judge’s
inappropriate comments reflect a constitutionally intolerable
possibility that he harbored an interest in the outcome of
defendant’s trial. We conclude that they do not. The judge did
not express bias toward defendant or a group to which she
belonged, as in the appellate cases just cited. Nor has there been
a showing of past controversy between the judge and defendant,
pecuniary interests, or other “influence at issue.” (Caperton,
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supra, 556 U.S. at p. 884.) Ultimately, the judge’s comments
disparaging the performance of defense counsel and witnesses,
though highly inappropriate, did not convey an interest in
defendant’s conviction or sentence; the misconduct thus falls
short of the “extreme facts” that would raise an objective
likelihood that the trial judge here was actually biased against
the defendant. (Freeman, supra, 47 Cal.4th at p. 1005.)
Accordingly, we find no structural error, and will assess the
court’s misconduct for prejudice. (People v. Abel, supra,53 Cal.4th at p. 914; Sturm, supra, 37 Cal.4th at p. 1243.)
4. Prejudice
We consider the cumulative effect of the trial judge’s
misconduct in order to assess prejudice that may arise from a
variety of factors. (Sturm, supra, 37 Cal.4th at p. 1243.) We
have observed that the timing of a judge’s improper remarks
may increase their potential for prejudice, such as comments
made during counsel’s closing argument (People v. Abel, supra,53 Cal.4th at p. 916) and comments that interfere with the
defense presentation of evidence (Sturm, at p. 1241). The
frequency of improper comments is another consideration. In
Sturm, where the trial court interjected in the defense
presentation of mitigation more than 30 times and made
additional remarks that disparaged defense counsel and
witnesses (ibid.), we concluded that the “numerous instances of
misconduct created an atmosphere of unfairness” that
contributed to prejudice (id. at p. 1243). We found the trial
court’s misconduct in Sturm prejudicial, in part, because the
penalty verdict “was by no means a foregone conclusion” and
there was evidence the jury could have credited to reach a
different outcome. (Id. at p. 1244.) Evidence beneficial to the
defense is therefore another factor that informs our analysis.
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The substance of comments is also an important measure —
improper remarks may be particularly prejudicial when the trial
court has “interjected itself unnecessarily and inappropriately
into the adversary process” or “undermined the defense theory
of the case.” (Id. at p. 1243.)
In reviewing the record, the trial court’s disdain for and
distrust of defense counsel is inescapable — as is the perception
the court found evidence from Dr. Ney, Dr. Plotkin, and Hall “ ‘to
be questionable, at best.’ ” (Sturm, supra, 37 Cal.4th at p. 1243.)
Although we conclude that the court’s misconduct could not
have altered the jury’s guilt determination, we are unable to
reach that conclusion regarding the penalty trial, thus finding
prejudicial misconduct that requires reversal of the penalty
judgment.
a. Guilt phase
The prosecution case against defendant included her
surviving son F.D. describing how she gathered his sisters
together to sleep in the kitchen and insisted that F.D. join them
when he resisted. Defense and prosecution experts agreed the
fire was intentionally set and defendant essentially admitted
starting the fire. There was also compelling evidence that just
before the fire defendant sent a note to her ex-husband angrily
taunting him with her plan of murder-suicide and sent a letter
to her ex-boyfriend appearing to blame their breakup for her
impending acts.
Defendant’s testimony that she lay down with her
children, turned the oven on to warm her feet, and remembered
little else, was difficult to credit. The prosecution effectively
impeached defendant’s claimed memory loss with notes from a
defense expert that documented defendant’s description of
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events, including writing letters to her ex-husband and ex-
boyfriend late in the evening, driving to the post office to mail
them, and holding a lighter and seeing a flash of flames.
The defense relied on the jury accepting a theory, set forth
in testimony by Drs. Ney and Plotkin, that defendant may have
had a seizure or suffered from a medical syndrome that caused
her behavior and lack of memory. Dr. Ney was a psychiatrist
with unusual credentials who had never qualified to testify as
an expert regarding the medical conditions he addressed. He
was cavalier, and on basic details shown to be inaccurate, in his
far-reaching claims about the medical and mental health
processes that might have affected defendant’s behavior. The
trial court’s suggestion that Dr. Ney “just doesn’t know what
he’s talking about,” though egregious, ultimately was not
prejudicial given the other factors that independently, and
severely, undermined Dr. Ney’s credibility — his questionable
expertise, evasive and inconsistent testimony, unprofessional
demeanor, substantial impeachment, and dubious claims that
undermined the defense, including his suggestion that
defendant was more likely to kill her children after having an
abortion.
We closely examine the prejudicial effect of the trial
judge’s inexcusably hostile questioning and commentary during
the testimony of Dr. Plotkin, who was potentially more credible
than Dr. Ney. Dr. Plotkin found evidence to suggest that
defendant had a seizure on the night of the fire. If true, it was
possible that she was unaware of some of her actions due to a
seizure-induced delirium. Dr. Plotkin also explained, however,
that a person in a delirium would not be capable of complex
behavior and thought.
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The evidence that defendant deliberately set a fire to kill
her family included testimony that she planned ahead to compel
her children sleep together on the kitchen floor, wrote letters
indicating that she intended to kill herself and her children,
drove to the post office to mail her letters, and intentionally
poured and lit gasoline throughout the house. Confronted with
this evidence on cross-examination, Dr. Plotkin agreed that a
person could not engage in such activities while experiencing
delirium. Under these circumstances, even if the jury fully
credited Dr. Plotkin’s testimony, it did not offer a theory that
reduced defendant’s culpability.
The trial judge’s misconduct included pervasive
mistreatment of defense counsel that began at the outset of trial.
The judge disparaged defense counsel during his opening
statement for suggesting that defendant had demons to
overcome. The timing of those remarks and their substance —
sarcasm about defendant’s troubled history — increased their
potential for prejudice. (People v. Abel, supra, 53 Cal.4th at
p. 916.) The many inappropriate remarks that followed focused
on defense counsel’s violation of court rules, lack of preparation,
and improper cross-examination of prosecution witnesses; and
disparaging and erroneous comments about defense counsel’s
discovery violations also suggested that the defense was trying
to obstruct the prosecution. Nonetheless, the improper
comments were not as numerous as in Sturm, and the
misconduct did not directly implicate defense theories or
interfere with the presentation of defendant’s case-in-chief.
(Cf. Sturm, supra, 37 Cal.4th at pp. 1241, 1243.)
In Mahoney, supra, 201 Cal. 618, we concluded that the
trial judge’s misconduct resulted in a “miscarriage of justice,”
referring to former section 4½ of article VI of the California
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Constitution (id. at pp. 626–627) — the basis for our state
harmless error standard (People v. Watson, supra, 46 Cal.2d at
pp. 835–836). There, the trial judge disparaged defense counsel
and witnesses and on numerous occasions “took to himself the
task of examining witnesses.” (Mahoney, at p. 622.) The judge’s
examination of witnesses focused on his belief in the defendant’s
guilt, “eliminating the possibility” of defenses the witnesses
might otherwise have endorsed. (Id. at p. 623.) Similarly, in
Sturm, we observed that the trial court, by making more than
30 sua sponte objections to the defense presentation of evidence
(Sturm, supra, 37 Cal.4th at p. 1241), “interjected itself
unnecessarily and inappropriately into the adversary process”
(id. at p. 1243). The trial court informed the jury that
premeditation was a “ ‘gimme’ ” in the penalty retrial, when the
lack of premeditation was central to defendant’s case in
mitigation, and thus “also substantively undermined the
defense theory of the case.” (Ibid.)
As we noted in Mahoney, “[t]he fact that a record shows a
defendant to be guilty of a crime does not necessarily determine
that there has been no miscarriage of justice.” (Mahoney, supra,
201 Cal. at p. 627.) When the trial court disparages defense
counsel and witnesses and “discredits the cause of the defense”
(ibid.) with recurring, substantive interventions, “ ‘[w]hatever
the degree of guilt of [the defendant] . . . those who know the
circumstances surrounding his [or her] conviction are likely to
feel that the verdict resulted from the conduct of the judge and
not from the evidence.’ ” (Id. at p. 626.)
Although the trial judge here expressed doubts about the
credibility of key defense experts and disparaged the
performance of defense counsel, this was not the persistent,
direct interference with the presentation of defense evidence
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that we saw in Mahoney and Sturm. Considering the entirety
of the guilt phase evidence and argument, we are not persuaded
“ ‘that the verdict resulted from the conduct of the judge and not
from the evidence.’ ” (Mahoney, supra, 201 Cal. at p. 626.)
Defense counsel presented inconsistent and implausible
theories that gave the jury little, if any, reason to doubt
defendant’s guilt. We express no view concerning the adequacy
of counsel’s performance. We simply observe that defendant has
not shown that the trial judge’s inappropriate conduct was to
blame for this performance or that the judge undermined
defense evidence the jury might have credited to reach a more
favorable result. (Sturm, at pp. 1243–1244; Mahoney, at p. 623.)
Considered “in the context of the trial as a whole” (People v. Abel,
supra, 53 Cal.4th at p. 916), we can say under either the
Chapman or Watson standards of review (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Watson (1956)
46 Cal.2d 818, 836) that the jury would have reached the same
verdict in the absence of the court’s misconduct.
b. Penalty phase
Our prejudice inquiry is more difficult with respect to the
penalty phase, where the jury’s role “is not merely to find facts,
but also — and most important — to render an individualized,
normative determination about the penalty appropriate for the
particular defendant.” (People v. Brown (1988) 46 Cal.3d 432,
448.)
In the penalty phase closing arguments, the prosecutor
highlighted evidence to counter the view that defendant had
been a warm, caring person: school staff believed that defendant
was overbearing and cold; a family member thought defendant’s
children feared her; neighbors felt defendant lied during her
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divorce and tried to turn her children against Folden; and
Fernando Nieves described defendant’s efforts to have F.D.
removed from his custody after the fire and sent to live in
another state. In seeking the death penalty, the prosecutor
argued that defendant’s actions were manipulative and
calculating — and that her suicide note to Folden revealed not
depression, but anger, revenge, spite, and control. The
prosecutor urged jurors to reject any suggestion that defendant
was mentally unstable and noted that defense experts had not
found evidence of psychosis when they examined her.
Reiterating defendant’s plan to burn her children to death, the
prosecutor argued that defendant “tried to kill herself because
she knew her own crimes were so hideous she didn’t want to be
around for the aftermath.”
Abandoning the position that defendant acted in an
unconscious delirium, in the penalty phase defense counsel
reiterated evidence that defendant was distraught over her
relationships, abortion, and finances and argued that she had
come “unglued.” Defense counsel portrayed defendant as an
emotionally fragile woman troubled by an abusive childhood,
devoted to her children, and overcome by depression and
thoughts of suicide. Pointing to defendant’s intent to commit
suicide as extreme mental and emotional disturbance, counsel
asked the jury to show mercy for “a tortured soul who all the
days of her life will have to relive an act of madness, and the . . .
nightmares that go with it.”
Evidence of mental disturbance from the guilt trial, which
defendant’s claim of unconsciousness had rendered superfluous,
lent some support to her penalty phase argument. (See People
v. Gonzales, supra, 51 Cal.4th at p. 953, fn. 34.) Defendant’s son
testified that she woke the children during the fire to help them
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avoid breathing the smoke, a fact the defense highlighted to
show defendant’s confusion after setting the fire and her desire
to protect the children from it. The defense reiterated the
conclusion of a prosecution expert that defendant could be
vulnerable to psychotic episodes that might arise due to
depression or bipolar disorder. Dr. Plotkin later noted that in
addition to her depression, defendant had been diagnosed with
bipolar disorder and was being treated for it in jail. The defense
also highlighted research by a prosecution expert showing that
most women who killed their children were not “coldhearted”
but experienced psychosis, depression, and other mental health
disorders. On cross-examination during the guilt phase, and
contrary to her defense, defendant admitted that she had been
thinking about suicide her entire life.
Defense counsel began his opening penalty phase
statement by remarking on his disappointment in the jury’s
guilt verdict, the challenge of appearing before the jury again
after his guilt phase arguments had been rejected, and his
respect for the jury’s guilt phase decision. After sustaining
objections to each of counsel’s remarks as improper argument,
the trial judge admonished counsel in front of the jury: “If you
can’t tell us what you expect the evidence will show, sit down
and don’t say anything more.”
Later in the opening statement, dismissing counsel’s
insistence that he was addressing matters the evidence would
establish, the trial judge sustained additional objections to
improper argument when defense counsel began to comment on
defendant’s relationship with her ex-husband. The judge then
abruptly demanded to know, “How much more do you have?” As
counsel responded — stating, “I would respectfully ask for the
court’s indulgence. I am trying to put in what I believe . . .” —
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the court interrupted: “[D]on’t explain to me what you are trying
to do. [¶] I am telling you what you cannot do. If you continue
to do it, I will terminate your opening statement.” The trial
judge’s display of such disregard for counsel as he made his
initial plea to spare defendant’s life increased the potential for
prejudice flowing from the judge’s comments. (People v. Abel,
supra, 53 Cal.4th at p. 916.)
As noted earlier, in comments before the jury during the
guilt phase, the trial judge ridiculed defense counsel, portrayed
him as wasting the jury’s time, highlighted his violation of court
rules, accused him of purposely misleading the jury, and
announced the imposition of a monetary sanction. The trial
judge suggested that a key defense expert did not know what he
was talking about, and his hostile questioning led another
defense expert to remark that the defense experts were made
out to be liars. Though we concluded that this misconduct was
not prejudicial in the guilt phase, it undoubtedly impressed
upon the jury the court’s disdain and served to “discredit[] the
cause of the defense.” (Mahoney, supra, 201 Cal. at p. 627;
People v. Woodruff, supra, 5 Cal.5th at p. 768.)
In the penalty phase, the trial judge continued to impugn
defense counsel’s performance and cited him for misconduct and
contempt in front of the jury. We have observed that when a
judge regularly denigrates the performance of counsel “ ‘it is not
the lawyer who pays the price, but the client.’ ” (Sturm, supra,37 Cal.4th at p. 1240; cf. Sacher v. United States (1952) 343 U.S.
1, 10 [to “pronounce [a lawyer] guilty of contempt is not unlikely
to prejudice his client”].) When defendant’s friends testified, the
prosecution exhibited pictures of the deceased victims and
mocked the witnesses for voicing fondness, admiration, and
sympathy for defendant following her conviction. The trial
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judge appeared to echo this contempt when he chastised Carl
Hall and accused him of wrongdoing.
The trial judge erroneously sustained objections to
questions that sought to bolster the testimony of a chaplain
attesting to defendant’s remorse for the crimes; the judge also
repeatedly and erroneously sustained objections to questions
about defendant’s nonviolence and the value she brought to the
lives of others. The “very act” of sustaining those objections
“tended to mislead the jury” (People v. Hill (1992) 3 Cal.4th 959,
1009) — by minimizing defendant’s mitigating evidence and
communicating that defendant’s valued attributes were “not
worth considering” (Sturm, supra, 37 Cal.4th at p. 1239). The
trial judge’s hostility and impatience with the defense were
further evident in the judge’s erroneous exclusion of whole
categories of mitigating evidence — Dr. Boone’s testimony
regarding defendant’s neuropsychological test results and
cognitive impairment and PET scan results portraying brain
injury consistent with defendant’s childhood traumas and
neuropsychological testing.
The trial court also improperly instructed the jury to
consider the “weight and significance” of defendant’s failure to
provide timely discovery concerning eight of twelve penalty
phase witnesses — an error we earlier found harmless when
viewed in isolation. Because the trial court repeatedly chastised
defense counsel and expressed doubts about the defense,
however, the erroneous instruction and improper aggravating
factor were apt to contribute to the perception that defendant
was manipulative and that her mitigating evidence was not to
be trusted. (Sturm, supra, 37 Cal.4th at p. 1243.)
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During defense counsel’s closing argument, the trial judge
unnecessarily remarked about defense counsel misstating the
law and admonished the jury to disregard counsel’s argument
that aspects of defendant’s background were mitigating. The
judge later gave a cautionary instruction that gratuitously
implied that defense counsel was improperly characterizing the
case in mitigation. As with the judge’s remarks during counsel’s
opening statement, the timing of these interventions increased
their prejudicial effect. (People v. Abel, supra, 53 Cal.4th at
p. 916.)
“Considered in the aggregate,” the impact of the trial
judge’s misconduct grew as his inappropriate comments
continued throughout the trial; the judge’s improper remarks
also increased in frequency during the short span allowed for
the penalty trial — not quite five days from start to finish — and
included threats and disparaging comments whose timing
interfered with both the opening statement and closing
argument for the defense. (Sturm, supra, 37 Cal.4th at p. 1243.)
Ultimately, the trial judge’s conspicuous disdain for defense
counsel and witnesses, and his repeated references to their
improper or untrustworthy conduct, lent credence to the
prosecution’s argument that defendant was manipulative and
deceitful. These were the very characteristics the prosecution
highlighted to justify the death penalty. The trial judge
effectively threw “the weight of his judicial position” (Mahoney,
supra, 201 Cal. at p. 627) behind the prosecution’s case and
erroneously excluded relevant and potentially beneficial
mitigating evidence, thus “undermin[ing] the defense theory of
the case.” (Sturm, at p. 1243).
We rely on a capital sentencing jury to “confront and
examine the individuality of the defendant” and consider any
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“ ‘compassionate or mitigating factors stemming from the
diverse frailties of humankind.’ ” (Caldwell v. Mississippi (1985)
472 U.S. 320, 330.) That critical function was compromised
here, where “numerous instances of misconduct created an
atmosphere of unfairness and were likely to have led the jury to
conclude that ‘the trial court found the People’s case against
[defendant] to be strong and [defendant]’s evidence to be
questionable, at best.’ ” (Sturm, supra, 37 Cal.4th at p. 1243.)
We consider how the jury “might have responded
differently” (People v. Smith (2015) 61 Cal.4th 18, 60) in
undertaking its sentencing decision in a trial unaffected by such
misconduct. It is not difficult to imagine the horror a jury might
feel in response to defendant’s actions. Nonetheless, a juror
could regard the stunning enormity of the crime, and the fact
that defendant intended to take her own life, as a sign of
significant mental instability. Absent the trial judge’s
persistent, disparaging remarks, a juror might have viewed
these circumstances with greater sympathy and concluded the
crime was a tragedy lacking the moral culpability to warrant
death. A juror might also have given greater weight to
defendant’s remorse and evidence she had been a loving mother
to conclude that life in prison, confronted each day with what
she had done to her children, was a fitting punishment.
Although we cannot be certain the jury would have reached a
different verdict in the absence of the judge’s commentary, we
are unable to say the penalty “verdict was ‘ “surely
unattributable” ’ to the trial court’s [misconduct].” (People v.
Grimes (2016) 1 Cal.5th 698, 723.) Instead, we find “a
‘reasonable (i.e., realistic) possibility’ ” (ibid.) that the outcome
would have been different without the weight of judicial
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authority favoring the prosecution and hence we must set aside
the judgment of death.
E. Cumulative Error
Defendant contends that claims considered harmless in
isolation are nonetheless cumulatively prejudicial. We have
found or assumed seven errors: (1) erroneous guilt phase
instructions regarding discovery violations; (2) error limiting
mental state testimony by defense experts in the guilt phase;
(3) exclusion of a neuropsychological expert in the penalty
phase; (4) exclusion of defendant’s PET scan results from the
penalty phase; (5) exclusion of mitigating evidence from lay
witnesses; (6) erroneous penalty phase instructions regarding
discovery violations; and (7) judicial misconduct, which we have
concluded was prejudicial in the penalty phase.
Regarding the guilt phase, we have held that the
erroneous discovery violation instruction and limitation on
expert testimony were harmless when considered individually.
We concluded that experts were not prevented from addressing
the bulk of information the defense sought to convey and that
the erroneous instruction did not affect the outcome of this trial.
Considered cumulatively, these errors do not warrant reversal
of the guilt judgment.
Although we need not address the cumulative effect of
penalty phase errors given our resolution of the judicial
misconduct claim, we note that the prejudicial impact of
additional penalty phase errors — the improper exclusion of a
neuropsychological expert, PET scan results, and mitigating
testimony from lay witnesses, and the erroneous instruction
related to penalty phase discovery violations — increases when
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considered in conjunction with the judicial misconduct, an effect
we have noted in our prejudice discussion for that claim.
F. Restitution
Defendant contends the trial court violated her rights to
due process and to confront evidence against her when, in her
absence, it imposed a restitution fine and ordered payment of
victim restitution. She claims the trial court further erred by
failing to make findings concerning her ability to pay.
During defendant’s sentencing, the trial court neglected to
impose a restitution fine required by section 1202.4, subdivision
(b) or order direct victim restitution as required by section
1202.4, subdivision (f). Defendant was not present at
subsequent hearings that addressed restitution: one in which
the trial court imposed a maximum $10,000 fine, and another in
which the court ordered victim restitution of $24,579.99
regarding claims already filed and left some future claims to be
determined. There were no reasons given for defendant’s
absence and no indication she waived her presence at the
hearings. Defense counsel opposed the restitution fine, citing
defendant’s inability to pay, and challenged the direct victim
restitution on several bases, including by offering a showing
that victims’ family members had already received payments
from life insurance policies maintained by defendant.
A criminal defendant has a “constitutional and statutory
right to be present at [a] sentence modification hearing and
imposition of sentence.” (People v. Robertson (1989) 48 Cal.3d
18, 60; see also Cal. Const., art. I, § 15; Pen. Code, §§ 977, subd.
(b)(1), 1193.) We have acknowledged restitution as “a
significant aspect of a criminal sentence.” (Briggs v. Brown
(2017) 3 Cal.5th 808, 831; see also People v. Tillman (2000)
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22 Cal.4th 300, 301 [judgment of conviction includes restitution
fine]; cf. Oregon v. Ice (2009) 555 U.S. 160, 171 [sentencing
determinations include “statutorily prescribed fines and orders
of restitution”].) And we have confirmed defendant’s right to be
present when the trial court imposes restitution. (See People v.
Frederickson (2020) 8 Cal.5th 963, 1027 [striking restitution not
imposed in open court and in defendant’s presence].)
The People argue that any rights defendant had to be
present at either of the restitution hearings were forfeited by
defense counsel’s failure to object to her absence. A defendant
may waive her constitutional right to be present for sentencing
“as long as [her] waiver is voluntary, knowing and intelligent.”
(People v. Davis (2005) 36 Cal.4th 510, 531.) “[A] defendant’s
statutory ability to waive [her] presence in a capital case is more
circumscribed than the associated ability to waive [her]
constitutional right.” (People v. Rundle (2008) 43 Cal.4th 76,
135.) There is no indication that defendant made any valid
waiver of her right to be present, and counsel’s failure to object
does not forfeit the claim. (People v. Penunuri (2018) 5 Cal.5th
126, 162.)
We therefore consider whether the error prejudiced
defendant. (People v. Penunuri, supra, 5 Cal.5th at p. 163;
People v. Davis, supra, 36 Cal.4th at p. 532.) The People observe
defense counsel was present at both hearings, raised
defendant’s inability to pay the restitution fine, and disputed
payment of victim restitution, and they assert that defendant
would not have made any additional contributions if present.
Defendant claims that she was in the best position to address
her ability to pay and details about her life insurance policy.
141
PEOPLE v. NIEVES
Opinion of the Court by Cantil-Sakauye, C. J.
There is nothing in the record to indicate that defendant
would have added any significant information about her
inability to pay beyond that presented by defense counsel.
Defense counsel received notice of the proposed victim
restitution almost two months prior to the hearing and thus
“had ample opportunity to discuss the contents with defendant
and to seek [her] assistance . . . . Assuming [counsel] did so,
defendant’s presence at the hearing would have added little to
[her] attorney[’s] ability to argue” the propriety of the victim
restitution payments. (People v. Davis, supra, 36 Cal.4th at
p. 533.) We conclude that defendant’s absence from the
restitution proceedings was therefore harmless beyond a
reasonable doubt.
We also reject defendant’s contention that the trial court
erred by failing to make findings regarding her ability to pay.
Defendant cites People v. Richardson (2008) 43 Cal.4th 959 in
support of her claim; however, the reference to findings in that
case concerned requirements that had been repealed and are
inapplicable here. (Id. at p. 1038.) The provisions of section
1202.4 in effect at defendant’s trial, as now, state that “[e]xpress
findings by the court as to the factors bearing on the amount of
the fine shall not be required.” (§ 1202.4, subd. (d).) “[T]he
absence of any findings does not demonstrate [the court] failed
to consider this factor. Thus, we cannot say on this record that
the trial court abused its discretion.” (People v. Gamache, supra,48 Cal.4th at p. 409.)
Defendant further claims the trial court failed to consider
her ability to pay when ordering direct victim restitution. This
argument fails because section 1202.4 provides that inability to
pay shall not be a consideration in determining the amount of a
restitution order. (§ 1202.4, subd. (g).)
142
PEOPLE v. NIEVES
Opinion of the Court by Cantil-Sakauye, C. J.
III. DISPOSITION
We reverse the death sentence and affirm the judgment in
all other respects.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
CUÉLLAR , J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
143
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Nieves
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S092410
Date Filed: May 3, 2021
__________________________________________________________________
Court: Superior
County: Los Angeles
Judge: L. Jeffrey Wiatt
__________________________________________________________________
Counsel:
Amitai Schwartz, under appointment by the Supreme Court, and
Moira Duvernay for Defendant and Appellant.
Kamala Harris and Xavier Becerra, Attorneys General, Dane R.
Gillette and Lance E. Winters, Chief Assistant Attorneys General,
Pamela C. Hamanaka and James William Bilderback II, Assistant
Attorneys General, Keith H. Borjon, Mary Sanchez, Jaime L. Fuster
and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Amitai Schwartz
Law Offices of Amitai Schwartz
2000 Powell St., Suite 1286
Emeryville, CA 94608
(510) 597-1775
Kristen J. Inberg
Deputy Attorney General
3000 South Spring St., Suite 1702
Los Angeles, CA 90013
(213) 269-6189