People v. Warner CA1/2

Filed 1/20/21 P. v. Warner CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A152049
v.
RYAN SCOTT WARNER, (Napa County
Super. Ct. No. CR169461)
Defendant and Appellant.
Three-year-old Kayleigh Slusher was so badly beaten that her small
intestine ruptured. She died from the resulting sepsis. A jury found Ryan
Scott Warner, who lived with Kayleigh and her mother, guilty of murder with
the special circumstance of torture as well as assault resulting in the death of
a child under eight years old. A separate jury found Kayleigh’s mother, Sara
Lynn Krueger, guilty of the same charges.1 On appeal, Warner argues that
there was no substantial evidence that he acted with the intent to torture
and intent to kill required for his conviction for murder and the finding of the
special circumstance. He also argues that the prosecutor misstated the law
in closing argument and his trial counsel was ineffective in failing to object.
In addition, he raises several challenges regarding jury instructions and
We address Krueger’s appeal of her conviction in an opinion issued
1
this day. (People v. Krueger (Jan. 20, 2021, A152087) [nonpub. opn.]).
1
argues that the trial court’s response to a jury question about the special
circumstance allowed the jury to improperly find the special circumstance.
He asks us to reverse his convictions on all counts, or at least the murder
count, and asks that if we affirm the murder conviction, we reverse the
special circumstance finding. We conclude that the record does not contain
substantial evidence to support the finding that Warner acted with the intent
to kill, and therefore we reverse the special circumstance finding and remand
for resentencing. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
A. Charges
In November 2015, the Napa County District Attorney filed an
information charging Warner and Krueger with two counts: murder, with
the special circumstance of torture (Pen. Code,2 §§ 187, subd. (a), 190.2, subd.
(a)(18); count 1), and assault resulting in death of a child under eight years
old (§ 273ab, subd. (a);3 count 2). The prosecution did not seek the death
penalty.
The case was prosecuted under the theory that the murder was by
torture, and that Warner directly committed the crimes, or aided and abetted
Krueger in committing them. The cases against Warner and Krueger were
tried to separate juries in the spring of 2017. Both juries were in attendance
2 All undesignated statutory references are to the Penal Code.
3
Section 273ab, subdivision (a) provides: “Any person, having the care
or custody of a child who is under eight years of age, who assaults the child
by means of force that to a reasonable person would be likely to produce great
bodily injury, resulting in the child’s death, shall be punished by
imprisonment in the state prison for 25 years to life. Nothing in this section
shall be construed as affecting the applicability of subdivision (a) of Section
187.”
2
for the presentation of most of the evidence, but the juries heard separate
opening statements and closing arguments and received separate jury
instructions.4
B. Prosecution Case
1. February 1, 2014: Kayleigh’s Body is Found
Warner’s friend Antonio Valdez testified that for about two days,
starting on the afternoon of January 30, 2014, he received texts and calls
from Warner, who claimed to need his help for an unspecified emergency. At
about 12:30 on the morning of February 1, Valdez and his brother drove to
Krueger’s apartment complex and met with Krueger and Warner. Warner
said that Kayleigh had drunk poison or bleach and was dead. Valdez did not
want to be involved. He became angry and told them to call the police.
Warner said they were about to discuss doing that. Valdez left, and later
contacted Warner, asking whether he had called the police. Warner again
told him that they were going to discuss doing that. After a few hours,
Valdez realized that Warner was not going to call the police, so he called
them himself.
In the early afternoon of February 1, Napa Police Officer Robert
Chambers went to Krueger’s apartment in response to a telephone tip. He
obtained a key, entered the apartment, which was filled with a smoky haze,
and discovered Kayleigh’s body in her bed under blankets. Only her face was
visible; it looked bruised, and there was blood coming from her nostrils. It
4
Warner’s jury was sworn on April 27, 2017, heard opening statements
on May 1, heard testimony and viewed evidence from May 2 through 22, was
instructed and heard closing arguments and began deliberations on May 25,
and reached its verdict on May 30.
3
appeared that Kayleigh had been dead for some time, and her skin was “ice-
cold.”
The forensic specialist who processed the crime scene testified that the
apartment was dark, dirty, disorganized, and smelled strongly of marijuana.
The curtains and shades were closed, and extra fabric around the windows
had been taped to the wall. There were three latex gloves on the floor. In the
kitchen there were dirty dishes in the sink, empty food containers, and
containers of partly-eaten food. The freezer itself was empty of food, and its
shelving unit had been removed. A later search of the apartment revealed
paraphernalia related to the use of marijuana and methamphetamine.
The coroner’s investigator who examined Kayleigh’s body in the
apartment testified that there were bruises all over the body and that the
pattern of lividity was inconsistent with the body’s position. If Kayleigh had
been in that position at the time of death, the lividity would have been on the
back of her body; instead, it was on the right side in the front.5
An attempt by police to “ping” Krueger’s cell phone to locate her that
day was unsuccessful, indicating that her phone was turned off.
2. Before June 2013: Krueger’s Relationships with Warner and
with Jason Slusher
Krueger testified that she and Warner met during the summer of 2005,
when she was 15 and he was 17; she fell in love with him; they used
methamphetamine together; and they had a brief relationship until Warner
moved away at the end of the summer.
The investigator explained that once the heart stops beating, gravity
5
takes the blood to the bottom of the body, and that Kayleigh’s body was found
on its back with the legs bent slightly to the right, with one arm across the
abdomen and the other by her side.
4
When Krueger was 16, she met Jason Slusher (Jason)6 at a “drug
house,” where people got together to use drugs. They became intimate, and
when Krueger was 17 she moved in with Jason and his parents and lived
with them for a couple of years. Later, Jason and Krueger got their own
apartment, where they were living when their daughter Kayleigh was born in
May 2010. Jason’s mother testified that both Krueger and Jason had short
tempers. They would argue often, with violence on both sides. One time
Krueger hit Jason in the head with a two-by-four, and Jason responded by
slamming the car door on Krueger’s arm. Krueger’s friend Allen Epperson,
who spent time with Krueger and Jason, saw them arguing and recalled a
time when Jason threw something at Krueger, who then pulled a knife out at
him.
In 2012, Krueger and Kayleigh moved to a new apartment in the same
complex where she and Jason had lived. The apartment measured 585
square feet, and had two bedrooms, one for Krueger and one for Kayleigh. At
some point Jason moved back in with them, but Jason and Krueger broke up,
and in June 2013 Krueger called the police because Jason was stalking and
harassing her. Jason was eventually arrested and sentenced to prison for
violating parole.
Krueger and Warner had reconnected on Facebook in the summer of
2011. She and Jason were sometimes seeing each other and sometimes not;
she would text with Warner when she and Jason were “off,” but not when she
and Jason were back together.
Friends, family members, and neighbors testified that for the first
three years of Kayleigh’s life, she was a happy and healthy child, and
We use first names to refer to individuals who share the last name
6
“Slusher.”
5
Krueger was attentive to her. Krueger took her to the doctor regularly and
facilitated her relationships with members of Jason’s family, as well as her
own.
3. Summer 2013: Warner Moves in with Krueger and Kayleigh
In the summer of 2013, Justin Kent stayed in Krueger’s apartment a
few nights a week. He testified that initially Krueger was attentive to
Kayleigh and there was no drug use in the apartment. But about a month
after Kent started staying with Krueger, Warner moved in and things began
to change. Soon Warner, Kent and Krueger were using methamphetamine
and marijuana in Krueger’s bedroom while Kayleigh watched TV or played in
another room. Warner and Krueger were in a romantic relationship, and
Kent believed that Krueger had more affection for Warner than he had for
her—Warner did not label them as a couple. Kent moved out after a
disagreement with Warner.
4. Fall 2013 through January 2014: Changes in Krueger
and Kayleigh
Robin Slusher, Kayleigh’s paternal grandmother, testified that she was
very much involved in Kayleigh’s life until about Halloween of 2013, when a
new pattern developed: Robin would ask to see Kayleigh and Krueger would
not allow it saying that Kayleigh was sick, or Krueger would cancel a planned
get-together, saying Kayleigh was sick. Robin attempted to see Kayleigh at
Thanksgiving, but Krueger told her Kayleigh was sick.
In mid-December 2013, Krueger told Robin that Kayleigh was sick and
asked Robin to bring Pedialyte and popsicles to the apartment, which Robin
did, but Krueger did not permit Robin to enter the apartment or see
Kayleigh. Robin saw Kayleigh at Robin’s house for about 45 minutes on
Christmas day, and noticed that she had dark circles under her eyes.
6
In mid-January 2014, Robin took Krueger and Kayleigh to a movie.7
Robin noticed that Kayleigh had a bruise that covered almost her entire
cheek. Krueger told her that Kayleigh had bumped heads with Krueger’s
friend, and that although the friend had been crying, Kayleigh said, “Don’t
cry. It’s not a big deal.” After the movie, Kayleigh “burst into tears” because
she didn’t want the movie to be over. When they got in the car for Robin to
drive them home, Kayleigh said she wanted to go to her grandparents’ house,
and she cried when Krueger said no.
During the third week of January, Krueger told Robin that Kayleigh
was sick, and Robin went to the apartment with food to settle Kayleigh’s
stomach. Once again, Krueger did not allow Robin to enter the apartment or
see Kayleigh. On January 29, Robin asked the police to conduct a welfare
check on Kayleigh. On January 31, Robin texted Krueger and asked if
Kayleigh could join her for a family lunch. Krueger responded by text that
they were going to Santa Cruz for the weekend.
Jennifer Slusher, Kayleigh’s aunt, testified that she had spent a great
deal of time with Robin, Kayleigh, and her own children from the time
Kayleigh was born until about three months before her death. During that
three-month period Jennifer tried several times to arrange for Kayleigh to get
together with her children, but Krueger would not allow Kayleigh to visit.
Sophia Grech, Krueger’s sister, often visited the apartment that
Krueger shared with Kayleigh. She testified that Krueger had been “an
amazing mother,” who “would play with [Kayleigh] and make sure she was
taken care of.” But things changed after Warner started living there.
Krueger seemed unhappy. Once, Krueger’s finger or hand was broken, and
7 In the remainder of this opinion, dates are in 2014 unless otherwise
stated.
7
Krueger told her she had slammed it in a door. It began to seem to Grech
that Krueger was paying attention to Warner, but not to Kayleigh, who
would be in a different room of the house. Weeks before Kayleigh’s death,
Krueger admitted to Grech that she was using methamphetamine.
Around Christmas 2013, Grech noticed a bruise about 3 inches in
diameter on Kayleigh’s lower back. When she asked Krueger about it,
Krueger said that Warner had told her that they were playing with
Kayleigh’s bike and that she fell. About a month before Kayleigh died,
Kayleigh became quieter. And in that month, Grech spent less time at the
apartment, but about two or three weeks before Kayleigh died, Grech walked
into Krueger’s bedroom and saw her using methamphetamine. The last time
Grech saw Kayleigh was about a week before Kayleigh died; Kayleigh was
coloring at the kitchen table with no one else in the room. Grech tried to call
Krueger several times in December 2013 and January 2014, but failed to
reach her: when Grech called, Warner would answer the phone and hang up
on her when she said “hello.”
Krueger’s friend Amanda Patterson would get together daily with
Krueger and Kayleigh. Before Warner came to live with Krueger, neither
Krueger nor Patterson was using drugs, though they had used them in the
past. After Warner moved in with Krueger, the women went back to using
drugs, sometimes with Warner and sometimes without him. At first, they
used methamphetamine just on the weekend, but then on an almost daily
basis. Patterson told an investigator that when Krueger came down from
methamphetamine she would get irritable, upset, or angry.
Patterson testified that after Warner moved in, Krueger “stepped back
as a mom” and let Warner do “fatherly things,” including taking Kayleigh to
the bathroom, making meals for her, and feeding her. One time when
8
Patterson and Krueger were present, Kayleigh was sitting in her highchair,
said she was full, and then threw up. Warner responded by telling Kayleigh
she needed to stay in the chair until she was done eating. Warner would
discipline Kayleigh by lecturing her and putting her in time outs that lasted
from a couple of minutes to 20 or 30 minutes.
Patterson observed that after Warner moved in, Kayleigh cried more,
became scared to go to the bathroom, and started having a hard time moving
her bowels.8 A few weeks before Kayleigh died, Patterson noticed bruises on
Kayleigh, including a bruise on her chin and neck. Warner told her that
Kayleigh fell and hit her chin in the bathtub; Krueger told her that Kayleigh
had tripped over the clothes hamper in the bathroom. Starting about a
month before Kayleigh died, Patterson noticed that Kayleigh was often sick
and throwing up, and looked tired.
Krueger described her relationship with Warner to Patterson as
complicated, as though “they were together but not together,” even though
Krueger cared for Warner. Patterson thought Krueger might have been
infatuated with Warner, but based on his behavior, she did not think he was
infatuated with Krueger. Patterson was not aware of Warner ever hitting
Krueger but observed him verbally abusing her. Patterson characterized
Warner’s behavior as “controlling.” Warner frightened Patterson once when
he and Kent woke her in the middle of the night, with Warner sitting on the
end of her bed saying he could tell her things that would scare her.
8
Kent had testified that when he started staying at the apartment,
Krueger was toilet training Kayleigh. The training was going well when
Warner first arrived, but Warner made her sit on the toilet until she relieved
herself, sometimes as long as half an hour. Sometimes Kayleigh asked for
her mother; even though Krueger was present, Warner would go into the
bathroom and tell Kayleigh she had to use the toilet before she could get up.
9
Several of Krueger’s neighbors in the apartment complex testified that
after Warner moved into Krueger’s apartment, they saw Kayleigh playing
outside less often than they had before; when they did see her, she was often
alone, while in the past Krueger had been with her. Neighbors also testified
that Kayleigh had bruises in the last months of her life, and that she looked
pale, acted subdued, and had a black eye in the weeks before her body was
found.
Neighbors offered other testimony as well. Breann Abernathy, a
medical assistant who lived in the apartment next to Krueger’s at the time of
Kayleigh’s death, testified that after Warner moved in with Krueger, she
heard yelling, arguments, and screaming from Krueger’s apartment.
Abernathy also recalled Krueger going to the doctor for whom Abernathy
worked to get treatment for a hand injury, and telling Abernathy that she
hurt her hand when she and Warner were moving furniture at 3:00 in the
morning and her hand was slammed against the wall. One night about a
week before Kayleigh died, Abernathy was awakened by what she thought
was something being thrown against the wall in Krueger’s apartment.
Mandi Farr testified that at about 3:30 one morning, Farr and her
boyfriend were awakened by Krueger and Warner knocking on the door,
asking the boyfriend to drive Krueger to the emergency room and Farr to
watch Kayleigh. Krueger appeared to be in pain; she said her fingers had
been slammed in a door. Farr understood that Krueger and Warner were in
an argument and Warner slammed her hand in the door. When Warner later
came to pick Kayleigh up, Kayleigh held on to Farr’s neck, saying “no, no, no,
no.” When Kayleigh realized that Krueger was there with Warner, she let
Warner pick her up and they left.
10
Alejandra Fermin Cisneros lived in an apartment next door to
Krueger’s; the apartments shared common bedroom walls, and Kayleigh’s
bedroom shared a wall with Fermin Cisneros’s. When Krueger and Kayleigh
first moved in, Fermin Cisneros would hear them laughing and playing in
Kayleigh’s bedroom. After Warner moved in, she no longer heard laughter
and playing through the wall. About three times in the two weeks before
Kayleigh’s death, Fermin Cisneros was awakened in the middle of the night
by the slamming of a door in Krueger’s apartment. She testified that after
she heard the door slam, she would hear Krueger or Warner screaming at
Kayleigh to be quiet. She “would hear [Krueger] hitting her and then coming
out—getting outside of the room, because you can clearly hear that they
would slam the doors. And after that, [Warner] I believe would come in and
he would say, ‘Didn’t you hear your mom to tell you to be quiet,’ or ‘shut up.’
I can’t remember exactly what word he used. And—well, that’s what I would
hear, that they would hit her, yes.” She did not recall each occasion in detail,
but she recalled that one night Krueger yelled at Kayleigh to be quiet or she
would hit her, she heard Krueger hitting Kayleigh, and she heard Warner
yelling at Kayleigh. After Krueger and Warner left the room, she would hear
Kayleigh breathing heavily. On two of the occasions, Fermin Cisneros
knocked on the wall and said Kayleigh’s name. She thought Kayleigh
knocked back the first time.
5. Police Visits to Krueger’s Apartment in Late January
On January 27 at about 9:40 a.m., Officer Chambers responded to a
report of a loud disturbance in Krueger’s apartment. Krueger answered the
door, upset and crying; before Chambers could explain why he was there, she
asked whether it was illegal to argue. Chambers explained that someone had
reported a loud argument in her apartment and he wanted to make sure
11
everyone was okay. Chambers was inside the apartment for about five
minutes, and while he was there, he saw Kayleigh, who sat on Krueger’s lap.
Chambers observed Kayleigh to seem happy, and she asked him about his
uniform. Krueger said she and Warner had been arguing over money and
that she had slammed a door a couple of times. She said she did not need
police assistance, and Chambers did not notice signs of domestic violence.
Warner was in the apartment when Chambers arrived; while Chambers was
talking with Krueger, Warner was outside talking with an officer who had
accompanied Chambers.
On January 29, at about 8:30 p.m., Napa Police Officer Garrett Wade
went to Krueger’s apartment to conduct a welfare check for Kayleigh that
had been requested by Robin, Kayleigh’s grandmother, who had expressed
concern that Kayleigh wasn’t being adequately fed and that Krueger was
using drugs. When Krueger answered the door, Wade explained he was there
for a welfare check and asked to come in. Krueger initially said no and closed
the door so that just her head and upper body were outside the door. Wade
then asked Krueger to call Kayleigh to the door, which Krueger did. Krueger
lifted Kayleigh, who was wearing pajamas, to her hip and stepped outside the
door; the only part of Kayleigh’s body that Wade could see was her face. He
noticed two small bruises on the left side of Kayleigh’s chin and asked
Krueger about them. She said Kayleigh had fallen off her bike. While Wade
was talking with Krueger he saw Allen Epperson, whom he knew, and
Warner walk from the back of the apartment. Wade eventually walked
through the apartment, scanning it as he went, and did not observe any
drugs or contraband or anything that seemed to pose an immediate danger to
a child. He saw food on the counter in the kitchen, which appeared
moderately clean.
12
Wade then spent about 15 minutes with Krueger and Warner,
evaluating them for signs of intoxication and interviewing them as they sat
on the living room couch a couple of feet apart from each other. Krueger did
not appear to be intoxicated. Warner, who showed some signs of intoxication,
admitted that he had taken one of Krueger’s pain pills and smoked
marijuana.9 Warner identified himself to Wade as “Ryan Howard”; Krueger
said nothing about his true name. After about 10 minutes focusing on
Warner, Wade turned his attention to Krueger. Kayleigh said nothing to
Wade during the visit; he thought she said something to Krueger, but he
could not hear what it was. A few minutes later, Kayleigh, who was still in
Krueger’s arms, vomited. Krueger stood up to leave the room, saying she was
going to take care of Kayleigh because she had the flu, and asked Wade to
leave, which he did.
6. Epperson’s Testimony
Epperson had known Krueger for about 10 years. They would use
methamphetamine and marijuana together until Krueger got pregnant, at
which point she stopped using except for occasionally smoking marijuana.
Epperson regarded Krueger as a sister and Kayleigh as his niece. He had
been in and out of jail for the past several years and would spend time with
Krueger when he was out.
Epperson first met Warner when he went to Krueger’s apartment on
January 9 or 10; he hadn’t seen Krueger in about a year before that. He
testified the apartment seemed messed up and dirty, and recalled that he had
told the police he had never seen Kayleigh looking so pale and not well taken
9 Krueger testified that she had constant pain in her hand for which
she had been prescribed Percocet and Tramadol, which she took
“occasionally.”
13
care of, and that Kayleigh told him, “I’m so happy to see you. I don’t like
nobody in this house here no more.” Krueger and Warner looked “strung out,
like they’d been using,” and Krueger was acting “on edge, moody” as if she
was high. She had lost weight since he saw her last.
Epperson next went to Krueger’s apartment on January 29, the day of
the police welfare check. He recalled that he had told the police that
Kayleigh “looked like shit” that day. When he asked about Kayleigh’s bruise,
Krueger said Kayleigh had fallen down and bumped her head. At some point
he went to the refrigerator to get something to eat, but it seemed empty.
On January 29, Epperson, Krueger and Warner smoked
methamphetamine in the bedroom with the door closed while Kayleigh was
in the living room watching cartoons. Before the police came, Krueger had
gone to check on Kayleigh, and found her in the bathroom drinking
something that might have had tobacco in it. Krueger started yelling, asking
Warner where her cell phone was so she could call poison control, and then
went into the kitchen slamming things. When Epperson went out into the
living room, Krueger was trying to get Kayleigh to drink water and throw up;
Krueger said that poison control told her to do that. Epperson was under the
impression she had called poison control.
Epperson left the apartment after the police welfare check that
evening. At some point before he left, Krueger gave him a Percocet. The next
day, January 30, at about 1:50 p.m. he texted Krueger asking for more
Percocet but got no response. He texted her again on January 31 at about
10:30 a.m. and got a response saying, “Hey, my bad, we bounced out of town
for a min. After what happened the other night we just had to get away.”
During one of Epperson’s January 2014 visits to the apartment,
Warner admitted that he was with Krueger just to get a place to live.
14
7. Flight and Arrest
Sometime after 9:00 a.m. on February 1, a neighbor saw Krueger and
Warner leaving Krueger’s apartment with luggage.10
Around noon that day, Antonio Vasquez was at a Home Depot waiting
for work and noticed Krueger asking for a ride. Warner was with her, but
about 20 feet away. Krueger, who did not seem upset, asked Vasquez for a
ride to the bus station in Vallejo, telling him that she had a children’s video
game she would give him in exchange for the ride. He agreed to give her a
ride, and she called to Warner. They had a suitcase-like bag with them. The
drive took 20-25 minutes, during which no one spoke. Neither Krueger nor
Warner appeared to be upset.
On the morning of February 2, Silvia Melendez was sitting in the lobby
of a restaurant when she looked at a news story on her cell phone about the
police looking for two suspects in connection with the death of a little girl.
The story included pictures of Krueger and Warner. A woman and man then
entered the restaurant. Melendez noticed that the man looked like the
person in the photo, and started looking at the story again, at which point she
saw that the woman, who had sat down next to her, was looking down at
Melendez’s cell phone. The woman then got up quickly and spoke with the
man, and the two left immediately.
Later that morning, BART Police Officer Boutain received an alert
describing two people who were wanted for murder by the Napa police
department and who were last seen at a restaurant across from the station
where Boutain was located. Boutain canvassed the BART station, saw
Krueger and Warner, and asked if they needed help. Krueger started crying
10Warner was carrying a red and black “hand pack.” The bag was
never found.
15
and said she needed to talk to the Napa police about something bad that had
happened there. Krueger and Warner were then arrested.
Napa Police Officer Piersig went to El Cerrito to assist in bringing
Krueger and Warner from El Cerrito to Napa. He drove back to Napa with
Warner in the back seat. He testified that Warner was calm, and said that
he had been trying to figure out a way to contact the police. During the drive,
Warner was quiet and looked straight ahead, except that when Warner saw
an older car with a nice paint job he “perked up” and commented on how cool
the car was.
Warner had his cell phone in his pocket when he was arrested. In the
phone case there was a receipt from Target for the purchase of ice cream on
January 31 at about 3:15 p.m. Krueger’s cell phone was in her purse, as were
state benefits cards for Krueger and Kayleigh
Blood drawn from Krueger and Warner on the afternoon of February 2
tested negative for the presence of methamphetamine and positive for
marijuana. A toxicologist testified that methamphetamine is on average
undetectable three to four days after ingestion.
8. Warner’s Interview with Detective Hess
Andrew Hess, the lead detective on the investigation of Kayleigh’s
death, interviewed Warner on February 2, after he was arrested and taken
back to Napa. Jurors watched a videotape of the interview and were given
transcripts to follow along.
Warner said that although he and Krueger were living together and
had a relationship, they never labeled themselves boyfriend and girlfriend.
He and Kayleigh were close: she liked him and he loved her. He had more
patience with her than Krueger did and took care of her quite a bit, probably
more than Krueger did. He often babysat for Kayleigh; he treated her as his
16
daughter, and she viewed him like a father. He said he loved Kayleigh and
said she was “really smart, she listens well, she’s a good child.”
On January 29, sometime between 4:00 and 7:00 p.m., he found
Kayleigh hunched over in the bathroom, and asked her what had happened.
She said she had thrown up. She was holding a measuring cup that Warner
had used to clean out a tobacco pipe with water and Windex cleaner. Warner
asked Kayleigh if she had used the cup; she replied, “I wanted water,” and
said she had used the cup. Warner told Krueger, who was in the apartment
along with Epperson.11 Warner explained that once he realized that there
was a possibility that she had drunk the liquid that was in the cup, he asked
her if she had drunk from it, and she said yes. He then asked her, “Did you
drink the . . . water that was in there, or did you get new water?” because he
“wanted to get a real answer out of her,” and he knew that because she was
“a little child,” if he said, “Did you dump this stuff out first and then get it?”
she was likely to just agree with what he said. Kayleigh told him she had
drunk from the cup but had gotten “new water.”
Warner and Krueger tried to get her to drink water and keep throwing
up. At some point Krueger asked if they should call poison control. Warner
said he deferred to Krueger as Kayleigh’s parent, and Krueger decided they
should continue giving Kayleigh water and help her throw up. Warner also
said that he was thinking that maybe they should call for help but said that
he was scared that if they called someone, they would get in trouble for using
drugs. Warner stuck his finger down Kayleigh’s throat to induce vomiting.
Krueger told police that she had put the measuring cup on the stove.
11
The parties stipulated that a measuring cup found in the kitchen of Krueger’s
apartment bore Warner’s fingerprint, and DNA consistent with Kayleigh and
Warner.
17
After about half an hour, Kayleigh said she felt better, and Warner and
Krueger tried to get her to eat popsicles with electrolytes. At this point,
Krueger took over. Warner was in the other room with Epperson and heard
her “going fucking crazy” on Kayleigh and yelling at her to eat the popsicles.
Warner said he stepped in and told Krueger she had to stop. Kayleigh went
to bed, but kept getting out of bed.
At about 9:00 or 10:00 p.m. that night the police came to do a welfare
check. After the police left he went to check on Krueger and Kayleigh. They
were in the shower, and Krueger was upset, saying her daughter had almost
been taken away from her.
Kayleigh kept on getting up from about midnight until 3:00 or 4:00 in
the morning, saying she had to throw up or asking for water. Krueger got up
with her, but Kayleigh didn’t throw up, and eventually Warner thought she
needed to defecate, and asked to take over. Krueger agreed. Warner
explained to Hess he had helped toilet train Kayleigh, specifically with
regard to defecation. He said she would “hold it in for . . . days” and then
have very large bowel movements, which he thought must hurt her. So
Warner took Kayleigh to the bathroom, and helped coach her through a bowel
movement; at some point she said “okay I can feel it, it’s about to come out,”
and he gave her a hug and kiss, and said he was proud of her and said she
should let him know when she was done. She said okay, and gave him a
thumbs up, and he left the bathroom at about 4:00 a.m. on Thursday, went to
bed, and fell asleep.
He was awakened on Thursday afternoon by Krueger commenting that
they had slept until 4:00. Warner told Hess that the reason they had slept so
long was because they had been up for a couple of days beforehand. Krueger
went to check on Kayleigh and came back asking why her daughter was
18
sleeping on the bathroom floor. She checked again and said, “Oh my god,
Ryan, she’s dead,” at which point Warner got up and found Krueger holding
Kayleigh. He told Krueger to give Kayleigh to him; he listened to Kayleigh’s
heart and grabbed her fingers, and realized she was dead.
Krueger said they needed to call the police and told him that he should
leave, and she would handle it. Krueger was upset, saying that they should
have called poison control. Warner told Krueger they needed to be calm, and
then he put Kayleigh, who was naked, because she had removed her one-
piece pajamas, to bed. He was scared that they would get in trouble for using
drugs and for not taking action when Kayleigh drank the contaminated
water.
Krueger said that they should leave and start a new life somewhere
else, and that no one needed to know about this. Warner “just wanted to get
the fuck outa there,” and texted his friend Antonio Valdez to figure out what
to do. That night, he and Krueger slept, but he kept waking up throughout
the night.
On Friday morning, January 31, Warner and Krueger awoke and
decided to get away. They put Kayleigh’s body in a bag, and put the bag
inside a suitcase the size of a duffle bag, which they put in Kayleigh’s
bedroom. Warner said the body “was in that thing . . . for quite some time.”
At some point after that, Krueger said she needed to get out of the house, so
they went for a walk to get some air and ended up getting some ice cream and
coming back. Kayleigh’s body was still in the suitcase in her bedroom.
Krueger wanted to leave and let the police eventually find the body. Warner
told her that if they were going to leave, he wanted to put Kayleigh in the
refrigerator or freezer so that when the body was found an autopsy could be
19
done and people would know what happened. Krueger agreed, and late that
night they put Kayleigh, still in the suitcase, in the freezer.
A little later in the interview, Warner told a different version of what
happened: he said that Valdez came over with his brother late on Friday or
early Saturday. The brother came into the house, and Warner showed him
the body, which had not yet been put into the bag and the freezer; it went
into the freezer after that. Valdez and his brother got angry and abandoned
the situation. So at about midnight on Friday or 1:00 a.m. on Saturday, he
and Krueger put Kayleigh in the freezer. Warner estimated the body was in
the freezer for about six hours, and the next morning Krueger took Kayleigh
out of the freezer and put her in bed, covered her, read her a book and gave
her some toys.
Then it was time to go, and Krueger and Warner packed up some
things, including Warner’s PlayStation, and they went to Game Stop to try to
sell it. Game Stop would not take it, so they walked to Home Depot and
traded the games for a ride to the bus station in Vallejo, and then took the
bus to BART, and BART to San Francisco, planning to wait until some money
arrived for Krueger, at which point they’d get on a bus and go far away.
Hess asked Warner why he didn’t “stick around and deal with it,” and
Warner initially replied that he was “just . . . going with the flow,” and that
Krueger “seemed to have control of it. The situation.” When Hess said, “So
you’re saying some of her ideas were like putting the child in the suitcase and
those things,” Warner responded, “No. I mean it was basically kind of a
mutual thing. It was like she, she, she was—we both agreed that—.”
When Warner took Kayleigh to the toilet on the morning she died, he
noticed bruises on her back and down onto her bottom. He later agreed that
she had bruises all over, and remarked that she had all the bruises when the
20
police came to check on her Wednesday evening. He also said that Kayleigh
had bruises for a week before she died. Asked what the bruises were from, he
replied, “from getting spanked,” and said that both he and Krueger would
spank her. Asked how spanking could cause bruises on the back, Warner
said that Kayleigh said those bruises were from leaning back against the
toilet and from crashing her bike. Asked about the bruises near Kayleigh’s
eye seen a week or two before the death, Warner said that one time after
Kayleigh went to the bathroom he said, “good job,” she asked for hugs and
kisses, and when he bent down she jumped up and slammed him in the face.
They both got bruised.
Warner said he and Krueger had verbal arguments, but the only
violence had occurred when he once punched a door “because [Krueger] was
flipping out, going crazy.” Also, once she was coming in the door, it slammed
his toe, and he pushed it back, slamming Krueger’s hand. That was about
the same time that he and Kayleigh got bruised faces. Warner said he had
spanked Kayleigh four or five times in the six months he had lived with her
and her mother; apart from that he would discipline her by having her stand
in the corner for 20 to 30 minutes. He said he never beat her, and he could
not explain all the bruises on her body. Warner said he had seen Krueger
spank Kayleigh, but never beat or punch her or anything like that.
Toward the end of the interview, Hess observed that Warner was
“showing absolutely no emotion.” Warner responded, “this whole entire
situation has me in a state of . . . mind that emotions are . . . all over the
place. And just because I’m not sitting there crying and freakin’ out like that
doesn’t mean I’m not emotionally involved, okay.” At trial, Hess described
Warner’s demeanor during the interview as sometimes calm and sometimes
talking quickly. Hess stated that Warner showed little or no emotion for
21
most of the interview and never said he was sorry about what had happened
to Kayleigh.
9. Krueger’s Interview with Detective Hess
Detective Hess also interviewed Krueger on February 2. The interview
was in two parts; as part of the cross-examination of Krueger, who testified in
her own defense, the jury was shown videotapes of both parts, and given
transcripts to follow along. We summarize the interview here.
The interview began with Hess asking Krueger what had happened to
Kayleigh. Krueger said that on the night of January 29, Kayleigh started
vomiting after she drank from a measuring cup. The cup had contained two
squirts of Windex and dirty water that Warner said he had used to clean a
tobacco pipe; Krueger could see tobacco in the sink, and Kayleigh told
Krueger she poured out what was in the cup and then filled it up with water
because she was thirsty. At the time, Krueger, Warner, and Epperson were
at the apartment. Krueger thought Kayleigh had swallowed tobacco, which
made her sick. Kayleigh vomited quite a few times, over a period of hours.
Asked why she didn’t call the paramedics when Kayleigh was vomiting,
Krueger said that it was because she and Warner had been using drugs. At
the time Kayleigh drank the liquid, Krueger was “coming back” to her senses
after using methamphetamine, and wanted to call poison control, but Warner
told her that Kayleigh was throwing up, which is what she needed to do.
They thought she had thrown up whatever she had drunk.
When Kayleigh stopped throwing up, she was put to bed, and Krueger
went to bed as well. When Krueger awoke, on the afternoon of Thursday
January 30, she found Kayleigh on the bathroom floor and thought she was
sleeping. Kayleigh had apparently taken off her zip-up pajamas, which she
could do by herself. Krueger went to wake her up, but Kayleigh was stiff.
22
Krueger told Hess she wanted to call the police when she found
Kayleigh’s body, but Warner said the police wouldn’t believe them. So
Krueger told Warner to leave, and that she would call the police. Even
though she had a phone and could have called, she didn’t because she was
scared. Krueger said that after she found Kayleigh, she held her and then
put her in her bed wrapped in blankets.
For the rest of Thursday afternoon and Friday, she would go in and out
of Kayleigh’s room. Warner said he didn’t want to go to jail for something he
didn’t do, and Krueger told him to leave and run so she could call the police.
Warner spent time on Friday making phone calls.
On Friday night, two people came to the house, including one of
Warner’s friends, who Krueger knew to be a high-ranking gang member and
who terrified her, and the friend’s brother. Warner had asked them to get
Warner and Krueger out of there. Warner and Krueger told the men what
happened, and the friend said they should have called the police. Warner
took the men into Kayleigh’s room, while Krueger remained in the kitchen.
The men told Warner and Krueger to call the police, which they did not do.
At about 1:00 or 2:00 on Saturday morning, after the men left, Krueger
said she was going to call the police, and Warner put Kayleigh’s body in the
freezer to preserve evidence. Krueger said she may have passed out, and that
Kayleigh’s body was in the freezer for about three hours before she took it out
and put it back in bed with blankets, a pillow and a toy.
Krueger and Warner then fell asleep for a couple of hours, and when
they awoke they decided they had to leave. At about 9:00 or 10:00 a.m. on
Saturday, they left the apartment and walked to a nearby Game Stop, where
they tried to sell a PlayStation 3. Later they sold it to someone at Home
Depot to get a ride to Vallejo, where they got on a bus, which they took to a
23
BART station. They then went to San Francisco and walked around, and
they went to a church to pray and have the pastor help them call the police,
but the church was closed, so they went to the airport, where they stayed the
night. On Sunday morning, they took BART back to the station where they
had boarded, and went to a restaurant because Warner was hungry. She
turned her phone on just one time.
Krueger told Hess she hadn’t used drugs in days, except for some
marijuana. She said she’d had a problem with methamphetamine long before
she had Kayleigh, but she stopped using when she learned she was pregnant
and didn’t use again until Warner came into her life in 2013, at which point
they were using almost every day or every other day. Kayleigh would watch
a movie when they used.
When asked about bruising on Kayleigh that neighbors had noted
about a week before, Krueger said Kayleigh had fallen off her bike, and had
just a little bruise. Krueger also said that at one point Kayleigh had a black
eye; Warner told her that he and Kayleigh had bumped heads when Kayleigh
jumped up to give him a hug, resulting in a black eye for Kayleigh and a
swollen eyebrow for him. Krueger was not present when it happened but had
no reason not to believe it. Also, Kayleigh had the flu about two weeks before
she died.
Krueger said she and Warner had been together since August and
although her own relationship with Warner was “complicated,” he was good
to Kayleigh, and the two of them were close. He helped with Kayleigh’s toilet
training, and taught her letters and numbers. Kayleigh was smart, friendly
and outgoing, and used to ask Krueger if Warner could be her dad. In
response to Hess’s remark that people told him Kayleigh’s demeanor had
changed since Warner was around, Krueger told Hess that Kayleigh missed
24
her father and was often nervous but perked up around Warner. Krueger
said she never saw Warner put his hands on Kayleigh, and Kayleigh never
said anything to Krueger about Warner doing anything to her.
In the second part of the interview, Hess asked who had given Kayleigh
baths, and whether Krueger had noticed bruises when she bathed her.
Krueger said that both she and Warner had given Kayleigh baths. Kayleigh
bruised easily, and she sometimes noticed bruises, mostly on Kayleigh’s
knees or elbows. Krueger said that sometimes Warner would be alone with
Kayleigh, for example when she went to the store.
Asked how they put Kayleigh in the freezer, Krueger answered that
Warner folded her legs, put her in a plastic garbage bag and then a suitcase,
and put the suitcase in the freezer, which had no food in it.
Krueger said she promised the men who came to the apartment early
Saturday morning that she would call the police, but she didn’t. Krueger said
she was afraid to call the police because Warner told her that if he went to
jail, the men would come for her. She also said that Warner had her phone
most of the time, but she turned on her phone once and saw that she had a
lot of text messages and knew that the police would be coming.
Krueger said that when Warner got angry, he would yell a lot, but
generally not get physical, except that once he got angry and slammed a door
on her hand; she didn’t know if he had done it on purpose. When Warner was
on methamphetamine, he would be up for days and his temper would be
much shorter.
As far as Krueger knew, Warner was good to Kayleigh. He spanked
Kayleigh with an open hand a couple of times on her bottom; Krueger told
him not to do that anymore and Warner said he wouldn’t. During the last
couple of weeks of Kayleigh’s life, Kayleigh and Warner got along very well
25
together—she would sit on the couch with him and hug him. Sometimes he
would get angry with Kayleigh because he thought “she was holding in her
poop.” At first Krueger thought it was strange that he would take Kayleigh
to the bathroom, but she was okay with it because she would hear Kayleigh
tell Warner that she loved him and say that she wished he was her dad.
Hess left the room for a time; when he returned, he said he had been
talking with Warner and had some more questions for her. He asked about
Krueger trying to give Kayleigh popsicles after she was sick to make her
better. He asked if she had hit her, and Krueger said she had raised her
voice at Kayleigh to get her to eat them but did not touch her. She said she
spanked Kayleigh in the past, a long time ago, but apart from that never put
her hand on her.
He asked about going out for ice cream. Krueger said that Warner
wanted to get ice cream, but she couldn’t eat it; Warner ate most of it. They
also got cigarettes and she smoked to calm her nerves.
When she found Kayleigh dead, she saw bruising on her buttocks or
“red butt” from Warner spanking her. She also saw bruises on Kayleigh’s
back that Warner said were “from the red butt.” She said she saw only a few
tiny bruises, and she didn’t see any on Kayleigh’s stomach. When she saw
Kayleigh dead, her first thought was that “she didn’t pour out the water,”
that she “drank that stuff and we poisoned her.”
10. Medical Experts
Two medical experts testified for the prosecution, forensic pathologist
Dr. Joseph Cohen, who performed the autopsy on Kayleigh on February 3,
and Dr. James Crawford-Jakubiak, a child abuse pediatrician, who had
reviewed Kayleigh’s medical records as well as documents, photographs and
x-rays from the autopsy.
26
Kayleigh was 41 inches tall and weighed 34 pounds. Dr. Cohen
identified 41 external injuries on the body, which appeared to have been
made within hours to two or three days before death.12 There were numerous
blunt force injuries to the front and back of the torso, reflected in small and
large bruises, mostly on the abdomen, but also on the back and buttocks. Dr.
Cohen counted 8 to 15 individual bruises to the abdomen, indicating 8 to 15
individual impacts. There were also external injuries to the extremities, i.e.,
the arms, forearms, thighs, legs and knees, as well as injuries to her head,
which were reflected in bruises on her forehead, cheek and under her chin,
and internal injuries to her scalp, one corresponding to the bruise on her
forehead, and one on her temple.
Dr. Cohen testified that moderate force would have been required to
inflict the injury to the head that resulted in interior bruising, and that
“moderate to severe” force would have been required to inflict the other
external injuries that he observed. None of the injuries to the abdomen
would have resulted from a spanking. Nor were the injuries to the buttocks,
back, or thighs caused by a “typical” spanking. Dr. Crawford-Jakubiak
opined that the extent of injuries on Kayleigh’s body was far beyond what
would commonly be suffered by a three-and-a-half-year-old in the course of
her life, and were caused by repeated episodes of major blunt force trauma.
The injuries were consistent with beating, not with spanking or falling from a
bike.
Some of Kayleigh’s injuries, including a healed broken rib, occurred a
12
few weeks before death. Dr. Crawford-Jakubiak testified that the broken rib
would have caused Kayleigh pain, including when she moved, and that given
her age, Kayleigh would have communicated the nature of the injury.
27
Dr. Cohen noted that the skin over the entire abdomen was green, a
sign of infection. When he opened the abdominal cavity, about two cups of
liquid poured out, consisting of blood and intestinal contents. The source of
the liquid was a rupture in the wall of the small intestine in the middle of a
12-inch segment of the intestine that was necrotic (i.e., dead or dying). In
addition to the injury to the intestine, Dr. Cohen observed blunt force injury
to the mesentery, which is the tissue that holds the intestine in place and is
anchored near the spine. Dr. Cohen also found a small recent injury to the
front of the spine. He found no evidence of constipation, abdominal disease,
or a spontaneous rupture.
The cause of death was abdominal trauma, which caused a lack of blood
flow in the belly, as well as damage to the intestine. As a result of the
trauma and lack of blood flow, the intestinal tissue became necrotic. The
intestine perforated and its contents spilled into the belly, ultimately
resulting in shock and death. Dr. Cohen stated that Kayleigh had been
abused and neglected. As to neglect, he opined that “it would have been very
clear that Kayleigh was in harm’s way after receiving the lethal injury, that
the lethal injury if treated early would have resulted in survival through
surgical excision of that dead portion of small intestine.” Neglect was also
reflected in Kayleigh being dehydrated and slightly malnourished. Dr.
Crawford-Jakubiak noted that from just after her birth until just after her
third birthday, Kayleigh went to the doctor frequently and Krueger often
called the nurses for small problems. On a couple of occasions, Krueger
sought care for Kayleigh when Kayleigh was vomiting. Kayleigh’s history of
medical care abruptly stopped in June 2013.
Dr. Cohen testified that after suffering a blow to the abdomen that
resulted in the injuries he observed in Kayleigh, a child would have cried and
28
would have suffered discomfort, pain, nausea, vomiting, and loss of appetite.
The symptoms would have progressed over time to unconsciousness and
death. Dr. Crawford-Jakubiak testified that the fatal injury to her abdomen
would have been very painful and Kayleigh would have cried, probably
vomited, and expressed what happened in words. As the injury progressed
and the bowel died, Kayleigh would have vomited, could have passed blood
from her anus, and would have experienced great pain for an extended period
of time until she lost consciousness.
Dr. Cohen testified that a “substantial” amount of force would have
been required to injure her spine, and a “severe” amount of force would have
been required for the fatal injury, and in each case the force came from blows
to the front of the body. He could not be certain how many impacts caused
the injuries; it could have been one or two or more.
Neither Dr. Cohen nor Dr. Crawford-Jakubiak could determine exactly
when Kayleigh died. Dr. Cohen testified that based on the state of the body’s
reactions to the injuries and the fact that the reactions stop at the time of
death, he estimated that the fatal injury to the intestine and mesentery was
inflicted more than 12 hours before Kayleigh died, and probably 18 to 24
hours up to two or three days. From the necrosis of the bowel and the
amount of fluid in the abdomen, Dr. Crawford-Jakubiak concluded that the
fatal injury occurred at least a day before Kayleigh died, and possibly longer.
The experts agreed that, based on the descriptions of Kayleigh’s behavior
during the January 27 police visit, when she was active and engaging with
people in her environment, and the January 29 visit, when she was quiet and
during which she vomited, that the fatal injury occurred between the two
visits.
29
Dr. Cohen noted that an “atypical” lividity pattern on the body
indicated that it had been moved after death.
11. Police Investigation
Investigators obtained, and played for the jury, video footage from
Target corresponding to the day and time shown on the receipt found with
Warner’s cell phone. Detective Hess noted that the footage shows Krueger
and Warner buying ice cream on January 31 at about 3:00 p.m. and that the
container was consistent with one found in Krueger’s apartment. He noted
that Krueger was ahead of Warner when they entered and left the store.
Video surveillance footage from the San Francisco International
Airport (SFO), also played for the jury, showed Krueger and Warner on an
airport tram at about 11:15 p.m. on February 1. Detective Hess testified that
Warner and Krueger appeared to be having a good time in the video; they
were talking, giggling, and snuggling together. Hess noted that neither of
them appeared to be upset or crying.
Krueger’s medical records showed that she was treated for a hand
injury on January 9 and told treating personnel that the injury was caused
by her boyfriend, “Ryan Howard,” who had accidentally slammed her hand in
the door. She was also seen for a hand injury on January 10 at a different
facility, and she told the treatment team that a friend had accidentally
slammed her hand in the door.
Kayleigh’s medical records showed that Krueger had taken Kayleigh to
the emergency room about seven times during the first three years of her life,
including when Kayleigh had possibly ingested hand sanitizer. Krueger had
taken also Kayleigh to nine appointments and had two phone appointments.
An investigator who examined the computer found in Krueger’s
apartment testified that the web browsing history reflected a search for the
30
phrase “stabbing pain next to bellybutton,” but not the date or time of the
search. He also determined that at about 11:00 p.m. on January 29, two
video files were accessed or downloaded: Terminator 2, Judgment Day and
The Secret Life of Walter Mitty.
Another investigator testified that a review of web browsing on
Krueger’s phone during January showed a search on January 23, a week
before Kayleigh’s death, asking whether vitamin E is good for bruises, and at
about the same time frame, searches on how to get rid of bruises now. On
January 24, there were continued searches on the same topics. On January
25, there was a search for an article to the effect of a woman booked or jailed
on suspicion of child abuse. On January 31, after Kayleigh’s death, there
were searches for U.S. cities, including a search for U.S. cities with the
highest population.
Investigators reviewed text messages on Krueger’s phone between
Krueger and Robin Slusher. On December 17, 2013, Krueger asked Robin to
bring ibuprofen for Kayleigh, as well as some food that would be easy on her
stomach. Krueger told Robin this was the sickest Kayleigh had been in a
long time. When Robin asked about Kayleigh the next day, Krueger said that
Kayleigh had a fever of 100.4, down from 102.1. Texting between the two on
Kayleigh’s condition continued through December 20, 2013, when Krueger
reported that Kayleigh was still sick and had been throwing up all night.
In mid-January there was another series of text messages between
Krueger and Robin. On January 16, Krueger reported that Kayleigh had a
fever and was throwing up. Robin asked about Kayleigh the next day and
was told Kayleigh had horrible diarrhea and a fever. Robin checked in again
on January 18 and 19; each time, she was told that Kayleigh was still sick.
Robin asked to see Kayleigh, but Krueger said no.
31
Robin contacted Krueger by text on January 25 and 26, wanting to see
Kayleigh. Krueger did not respond until January 27, when she informed
Robin that Kayleigh was very sick and she was waiting for a phone
appointment with the doctor. When Robin checked in later to find out what
the doctor had said, Krueger responded that the doctor said it was a nasty flu
season and she should keep Kayleigh inside, give her fluids and monitor her
for 48 hours.
During these periods there was no indication on the phone or in
Kayleigh’s medical records that Krueger had sought medical advice regarding
Kayleigh.
The last text exchange with Robin was on January 31, when Robin
asked to see Kayleigh and Krueger responded that they were going to Santa
Cruz.
Investigators found that starting on January 30 at about 4:30 p.m.
there were 76 outgoing phone calls from Krueger’s cell phone to Valdez, as
well as missed incoming calls from Epperson and Robin. There was an
outgoing call on January 31 at about 3 p.m. to a number that allows
recipients of welfare to check the status of their benefits. This call was made
just before the purchase of ice cream at Target.
C. Krueger’s Defense
Warner did not testify or call any witnesses in his defense. Krueger,
however, called fact witnesses, offered her own testimony, and called an
expert witness, and Warner’s jury was present for that testimony, as well as
for the subsequent rebuttal evidence.
1. Fact Witnesses
Linda Reed testified that from April through June of 2013, Krueger
occasionally worked as a substitute at Reed’s daycare center, which Kayleigh
32
attended. Reed thought Krueger was a good mother, and asked her to work
as a substitute based on seeing Krueger interact with Kayleigh.
Krueger’s father, John Krueger (John), testified that when he saw
Kayleigh on Christmas Day 2013 she was behaving normally, and that the
last time he saw Kayleigh was about a week before she died. After that, at
the end of January 2014, he tried to see Kayleigh, but was told by Krueger
that Kayleigh was sick with the flu.
John testified that he and Krueger had a close relationship and used to
talk on the phone every day. Their contact became less frequent after
October 2013. By mid-January 2014, John was aware that Krueger was
using drugs.
2. Krueger’s Testimony
Krueger testified that she met Jason at a drug house when she was 16.
At that time she had a “problem” with methamphetamine, and they used it
together every day. Later, they used only on weekends. After about five
months they became intimate, and when Krueger was 17 she moved in with
Jason at his parents’ home.
Jason was jealous, and he accused Krueger of cheating on him. The
jealousy led to frequent arguments in which Jason became violent and struck
her. He called her names, told her she was worthless, and harassed her
when she went to see friends, so she stopped seeing many of them.
At 19, Krueger became pregnant, stopped using methamphetamine,
and delivered Kayleigh in May 2010. Jason was in jail during part of the
pregnancy, having been convicted of domestic violence for slamming
Krueger’s arm in a car door. On his release from jail, Jason continued using
methamphetamine, and when he was coming off a high he was sometimes
33
violent. In June 2013 he was arrested and sent to prison after he threatened
to kill Krueger and kidnap Kayleigh.
While Jason was in prison, Krueger reconnected with Warner, with
whom she had been acquainted when she was 15. She invited him to visit,
which he did in August 2013. At first Warner was going to stay for just a
couple of days, but he ended up moving in with them. Krueger described
Warner’s relationship with Kayleigh as “[g]ood, like a stepdad.” Like a good
parent, he played with Kayleigh, helped with toilet training, and seemed very
loving. Warner would have Kayleigh sit on the toilet for 15 or 20 minutes to
have a bowel movement, and sometimes Krueger and Warner would argue
because Krueger thought that was too long, but Warner told her that
Kayleigh “was so backed up and constipated” and that “it was borderline
child abuse to let her hold it in all day long” because she would be in so much
pain when she finally moved her bowels, and Krueger thought it was better
for Kayleigh to sit on the toilet than be in pain.
The first day Warner arrived, Krueger resumed her methamphetamine
habit with him. They would smoke methamphetamine in Krueger’s bedroom;
Kayleigh would play in her bedroom or watch a movie. From the beginning of
December 2013, Krueger was using methamphetamine every day. She would
take a “hit” or two of methamphetamine for a “boost,” five or six times a day,
and used marijuana to ease the feelings of coming down from the high,
sleeping every night or every other night. She agreed that she was high
pretty much all the time from Thanksgiving through January.
Krueger initially testified that she would buy marijuana, but not
methamphetamine. She said that Kent would come over and leave them
some, or Warner would trade video games to a friend for drugs. Later, she
testified that she would also go to friends’ houses and use there and
34
sometimes they would give her some to take home. Eventually, after
reviewing texts she had sent and a transcript of a telephone call from jail, she
admitted that she would spend money on marijuana, which she would trade
for methamphetamine with her friends because they gave her a better deal,
and that she had bought methamphetamine at least once.
In mid-December, Krueger learned that there was a warrant for
Warner’s arrest. She was present on occasions when he lied to people about
his name. Because of the warrant, Warner rarely left the apartment, and
Krueger was usually the one to run errands, and she would often leave
Kayleigh with Warner. Starting in mid or late December, she and Warner
would often argue about her wanting to stop using drugs and having them
around.
Krueger and Warner had verbal arguments almost daily from mid-
December through January. Krueger testified that the arguments would be
about getting clean, and she denied that they concerned the relationship.
Although she wanted more from the relationship than Warner was willing to
give, they argued about the relationship “maybe two times,” the first of which
was in November. Around Christmas, they had their “first big fight” about
getting clean, during which Warner threw the Christmas tree over. On
January 9, during another argument about getting clean, Warner slammed
her hand in her bedroom door, injuring her badly. She and Warner went to
the hospital to have her hand treated, leaving Kayleigh with a neighbor.
On the morning of January 27, she and Warner got high. Later, they
had an argument: she wanted to get clean, and he didn’t, so she told him to
move out. Warner threw an abalone shell against the wall and pushed
Krueger against her bedroom door and punched it right next to her face
twice, leaving two holes in the door. Warner told her that he would leave
35
only if she had the police remove him, and if she did that, he would have
“Antonio [Valdez] and all his homies come handle [her].” Warner had told
her that Valdez was a high-ranking gang member, and Krueger was afraid
that if the police were involved, Antonio would come to the house and hurt
her in front of Kayleigh. Krueger was also concerned that Kayleigh would be
taken away because they were using drugs. The police arrived at the
apartment in response to the argument, but Krueger did not tell them what
Warner had said and done.
After the police left on the morning of January 27, Krueger took
Kayleigh to a friend’s house for several hours. She had told Warner to pack
his things and leave while she was away. But while she was at her friend’s
house, she sent Warner a text message that said, “I really hope you’re home
when I get there.” He responded, “I got up, made pancakes for your
daughter, put cinnamon rolls in the oven . . . and you woke up treating me
like dog shit for nothing,” to which she replied, “I am so sorry. You do so
much for us. I am so sorry. I guess I was just mad because I wanted to
cuddle with you last night.” She and Kayleigh went back to the apartment
that afternoon, took a nap on the couch, and awoke to Warner saying that he
would take Kayleigh to the bathroom and then make dinner.
That night, Krueger didn’t really sleep. At about 10:00 a.m. on
January 28, she was taking a shower and fainted; she hadn’t eaten because
she was using, and Warner told her to lie down, made her some soup, and
said he would take care of Kayleigh.
For the rest of the day on January 28 Krueger slept off and on, until
about 5:00 in the afternoon, when Kayleigh brought her a picture she had
made for her. Krueger and Warner had an argument that evening, and at
some point on January 28 she sent him a text saying that she cared for him,
36
and it was clear he would never have the same feelings for her, and she “just
want[ed] to feel loved.” After the argument, Krueger called her friend
Epperson, crying and saying that she was upset about the way Warner
treated her because she was helping him out so much and felt things were
one-sided. Epperson asked if she wanted him to come over, and she said yes,
so he could keep her company.
Krueger testified that on January 29, she woke at about 8:00 a.m.13 and
Epperson arrived soon thereafter. That day she smoked marijuana but did
not use methamphetamine, contrary to Epperson’s testimony. During the
day she was “periodically” in her bedroom with the door closed, and Kayleigh
was in another room watching a movie. That afternoon, at about 4:00 or 4:30,
Krueger was in her bedroom and heard Warner say, “[W]hat happened, did
you throw up?” Krueger, who was under the effects of “coming down” from
methamphetamine and high from smoking marijuana, went into the
bathroom where Kayleigh was, and saw vomit on the floor, brown liquid in
the sink, and a measuring cup on the floor in which Warner had a tobacco
pipe soaking in water and Windex. Kayleigh said she was thirsty and that
she got new water. As far as Krueger knew, that was the first time Kayleigh
vomited that day.
Krueger testified that she wanted to call poison control because she
thought Kayleigh had swallowed tobacco; Warner said no, that it was okay
and that Kayleigh just needed to throw up and that they should give her
13
On February 5 and 15, 2014, in recorded telephone calls with her
father, Krueger said she had been awake for 30 hours, since she last used
methamphetamine, when she fell asleep on the morning of January 30. In
his interview with Detective Hess, Warner said that he and Krueger slept a
full 12 hours, from 4:00 a.m. to 4:00 p.m. on January 30, because they had
been up for a couple of days beforehand.
37
water. Epperson reminded Krueger that when Kayleigh was a baby she had
eaten half a cigarette, Krueger had called poison control, which told her that
she would throw up and to give her water. So she gave Kayleigh water, and
Warner put his finger in her throat a couple of times to get her to throw up.
Kayleigh threw up about six times; the last time was while the police were
there that evening. Kayleigh was sitting in Krueger’s lap when she vomited;
the vomit was red from Pedialyte that she had given Kayleigh, and it got on
Krueger’s clothes.
Krueger said she told the police that Kayleigh had been throwing up;
they said they were done with her and that she should go get cleaned up.
The police left while she was in the shower, with Kayleigh sitting in the tub
playing. Warner knocked on the bathroom door, and Krueger clung to him
and cried because she was afraid Kayleigh would be taken away because of
the drugs in the house.
Krueger did not notice anything unusual about Kayleigh while she was
in the tub. The only bruises she saw were bruises she knew about: a few on
her lower back, two little ones on her chin, and one on her forehead.
Kayleigh had told her the bruises were from bumping her head on the table
or from her bike. Previously, before her hand was slammed in the door,
Warner had told her that Kayleigh had jumped up from the toilet to hug him,
and they bumped heads, giving him a swollen eyebrow and Kayleigh a black
eye. The black eye had gone away by January 29.
After Krueger put Kayleigh to bed, Kayleigh woke up a few times
whining that she was thirsty. Krueger gave her Pedialyte, thinking that the
tobacco she had drunk was gone and she was waking up thirsty from having
thrown up so much.
38
Krueger did not sleep until about 4:00 in the morning on the 30th.
When she went to bed, Kayleigh was in the bathroom with Warner. Krueger
woke at 4:00 in the afternoon. She had expected to find Kayleigh in bed with
her, looked at her phone to see what time it was, and then, concerned that
she had slept so long, went to find Kayleigh, who she found on the bathroom
floor lying on her stomach. Krueger thought she was asleep, and went back
to the bedroom and asked Warner, who was waking up, why Kayleigh was
sleeping on the floor. Krueger went back to check on her, called her name,
and went to shake her, but realized that Kayleigh was dead when she
touched Kayleigh’s leg, which was cold and stiff. There was a bruise on
Kayleigh’s bottom that she had not seen before.14 She started screaming that
Kayleigh was dead and started to pick Kayleigh up. Warner ran into the
bathroom and took Kayleigh from her arms. He started shaking Kayleigh
and poking at her stomach, and said, look, she’s breathing. Krueger told him
to stop and give Kayleigh to her, which he did. Krueger said they needed to
call 911. Warner said he needed 10 minutes to process what had happened,
and he took Kayleigh and put her on her bed.
When Krueger asked for her phone to call 911, Warner said the police
would think he did something to Kayleigh because of the bruise on her
bottom. He told Krueger that the day before, Kayleigh had gotten out of a
time out early, and he spanked her, but he didn’t think he had spanked her
hard, but apparently he had. Krueger told him a spanking would not kill
Kayleigh and there must have been more Windex in the cup, which she must
have drunk and which poisoned her. Krueger testified at trial that she still
believed that Kayleigh died from drinking the Windex and tobacco solution.
14Krueger testified that she did not see other bruises on Kayleigh when
she found the body.
39
Although Krueger had told Detective Hess in her interview that she
was in and out of Kayleigh’s room after she found Kayleigh on January 30
and on January 31, she testified at trial that Warner would not let her into
Kayleigh’s room until after she took Kayleigh’s body from the freezer.
On Friday afternoon, Warner said he needed to get out of the house, so
they went for a walk, and ended up at Target, where Warner bought ice
cream. They returned to the apartment, and late that night or early
Saturday morning, Valdez and his brother came over at Warner’s request.
The four of them talked in Valdez’s car. Warner said that Kayleigh had
drunk something and died, and that he needed help to get away and get rid of
her. Krueger was crying, and Valdez yelled, why didn’t you call the police.
Krueger told him that she wanted to. She testified that she did not call, and
asked why not, she testified that Warner had her phone.
After Valdez and his brother left, as Krueger was dozing off, she heard
Warner say something about the freezer. She awoke at about sunrise and
could not recall whether he had actually said that; she asked him if Kayleigh
was in the freezer. When Warner said yes, she went to the kitchen, opened
the freezer, took out the bag with Kayleigh’s body, and removed the body
from the bag. She noticed the body had a red, purplish color on the side that
had been lying on the floor.15 She put Kayleigh’s body back in her bed, under
blankets.
Later that morning, they left the apartment. One of the last things
Krueger did before leaving was pack a bag of “special clothes of Kayleigh’s
15 Krueger testified that although she had since seen photographs that
show bruises all over Kayleigh’s body, including on her stomach, she did not
see other bruises when she found the body or when she took the body from
the freezer and laid it on the bed.
40
and hospital clothes and first birthday clothes.” The bag was marked “Please
give to my mom.” After leaving the apartment, Krueger and Warner tried to
sell some video game equipment at Game Stop to get money, and then went
to Home Depot where she arranged with Vasquez to give them a ride to
Vallejo. Warner had told her they should go to Vallejo, and she assumed that
was to get a bus, but she didn’t know where they would go from there.
Warner told her he would give her the phone and let her call the police when
they got out of town.
At Vallejo, they took a bus to the El Cerrito Del Norte BART station,
arriving at about 1:30 p.m. on Saturday, February 1. They took BART to San
Francisco and went into a fast food restaurant, where Warner gave her phone
back and said she could call the police. She turned on the phone and saw
dozens of messages, and she knew that the police had found Kayleigh. She
told Warner she wanted to go back to Napa and go to the police station
herself rather than calling. Warner said he would go with her, but as they
started walking back to the BART station, Warner said he wanted to go to
the beach and smoke some marijuana that Krueger had with her, and then
they would head back. So they went to the beach, and later took BART to
SFO. It was too late to get a bus to Napa, so they went to the airport where
they sat on chairs for the rest of the night. Krueger added that “before the
airport, we were gonna go to a church.” The next day they took BART back to
El Cerrito Del Norte, where they were arrested.
Krueger testified she had spanked Kayleigh just three or four times in
her life, with an open hand on Kayleigh’s bottom. She did not yell at
Kayleigh during the last week of her life, except on January 29, when she
was on the couch with Kayleigh trying to get her to eat a Pedialyte popsicle to
rehydrate her. Warner came out of the bedroom and said to Kayleigh, are
41
you not listening to your mom, at which point Kayleigh took a bite from the
popsicle. Krueger said she was not concerned that Kayleigh was seriously ill,
but just worried about dehydration and noted that it was unusual for
Kayleigh to refuse to eat a popsicle.
Krueger admitted that Kent and Patterson each expressed dislike for
Warner, who they characterized as arrogant. Her father disliked Warner
because he thought Warner should be working. In January 2014, Krueger
and her father fought about the fact that he thought she was using drugs and
that he didn’t approve of Warner living in her home.
Krueger admitted that child protective services (CPS) was supervising
her with Kayleigh from the time Kayleigh was five months old until she was
almost two. She also admitted that during that time Jason went to prison for
an incident that occurred when he came to her apartment, grabbed her arm,
and twisted it. She told her CPS worker that she had lied to the police, and
that Jason had not assaulted her but had been jumped by gang members.
She admitted at trial that what she told CPS was a lie. The truth was that
she had fought back when Jason assaulted her and it had left marks on him,
and she and Jason were concerned that she would get in trouble with CPS for
fighting him.
Krueger testified that Warner did not physically abuse her as Jason
had; the only physical injury she ever received from Warner was the injury to
her hand when the door slammed, and she did not know whether that was
intentional on his part. Unlike Jason, Warner did not try to prevent her from
seeing her friends.
3. Expert Testimony
Marriage and family therapist Linda Barnard testified as an expert in
intimate partner battering and the psychological concept of dissociation.
42
Intimate partner battering creates “coercive control” even if physical force is
absent. Abuse followed by kindness creates a bond, which is enhanced by
isolation of the victim from other support.
“Cumulative traumatic stress” leads to changes in the brain. Memory
of a traumatic event may be disordered and inconsistent. Perception may be
altered. A person who has been the victim of trauma, including intimate
partner battering, and who suffers a traumatic event, like finding their child
dead on the floor, might not notice aspects of the child’s body, such as
bruising.
Dr. Barnard testified that dissociation is commonly part of a response
to trauma, whether cumulative trauma or an extremely traumatic event. A
dissociative response can include a failure to register information about a
traumatic event and loss of memory of details surrounding a traumatic event.
The person may be unable to describe events in sequence or may remember
some things but not others. A person in a dissociative state “feels like they’re
split off from their feelings,” or “their behaviors show that they’re somehow
not connected to the behaviors that they’re doing, that there’s a disconnection
there,” but might be able to negotiate with a cab driver for a ride, or perform
routines tasks, like laundry. A person undergoing an extreme dissociative
episode cannot function, but more commonly, a person in a dissociative state
has a flat affect even when talking about the traumatic event.
After interviewing Krueger, reviewing a transcript of Krueger’s
testimony, and the video of Krueger’s interrogation by Detective Hess, as well
as various police reports, medical reports, Kayleigh’s autopsy report, and a
receipt from Target, Dr. Barnard diagnosed Krueger as suffering from
posttraumatic stress disorder with depressive symptoms. Dr. Barnard opined
that Krueger experienced multiple traumatic events in her life, including
43
being involved in two relationships that included intimate partner battering:
one with Jason Slusher, characterized by numerous incidents of physical
violence, and one with Warner characterized by strident arguments and three
incidents of physical violence.16 Dr. Barnard opined that the trauma affected
Krueger’s memory, perception, behavior, outlook and beliefs, that Krueger
went into a dissociative state upon finding Kayleigh dead, and that the
dissociation was probably prevalent for the first few days, including the first
days after her arrest, and intermittent from then on.
D. Rebuttal
Psychiatrist Mikel Matto, an expert in dissociative disorders, the
effects of trauma, and intimate partner battering, opined that Krueger had a
demonstrated history of abuse from Jason that impaired her reasoning and
judgment, but that she did not have such a history with Warner, and that
there was no evidence that her relationship with Warner affected her like the
relationship with Jason. Dr. Matto said that when he interviewed Krueger in
March 2017, she described a dissociative episode that lasted almost three
months from her discovery of Kayleigh’s body, but Dr. Matto did not believe
that Krueger was actually in a dissociative state. Dr. Matto opined that
Krueger’s behavior during that period, as reflected in her actions and
appearance in the videos, including those from Target and SFO (which Dr.
Barnard had not viewed), and her recall of details when she was interviewed
by Detective Hess, were inconsistent with dissociation.
16
Dr. Barnard opined that other traumatic events in Krueger’s life
included experiencing violence in her home growing up, abandonment issues
with her parents, physical and verbal abuse from her father, being molested
multiple times by a boyfriend’s father, being the victim of a rape by two men
at the age of 14, and experiencing a car accident. Krueger had testified to
these incidents.
44
E. Verdict and Sentencing
The jury found Warner guilty of both murder and assault resulting in
the death of a child under eight years old, and found true the special
circumstance of torture. Warner was sentenced to life in prison without the
possibility of parole for the murder charge. His sentence of 25 years to life on
the assault charge was stayed under section 654. He timely appealed.
DISCUSSION
A. Evidence to Support the Verdict
Warner argues that the record contains no substantial evidence that he
had the intent to torture that was required for his conviction for first degree
torture murder or the intent to kill required for the torture special
circumstance. We conclude that substantial evidence supports the torture
murder verdict, but we agree with Warner that there is not substantial
evidence to support that he had the intent to kill, and therefore we shall
reverse the jury’s true finding that the special circumstance was true.
1. Standard of Review
“In addressing a challenge to the sufficiency of the evidence supporting
a conviction, the reviewing court must examine the whole record in the light
most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] The appellate court presumes in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence. [Citations.] The same standard applies when the conviction rests
primarily on circumstantial evidence. [Citation.] Although it is the jury’s
duty to acquit a defendant if it finds the circumstantial evidence susceptible
of two reasonable interpretations, one of which suggests guilt and the other
45
innocence, it is the jury, not the appellate court that must be convinced of the
defendant’s guilt beyond a reasonable doubt. [Citation.] ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.
[Citation.]” ’ ” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
2. Analysis
a. First Degree Murder
A conviction for first degree murder under the theory that the murder
was by torture requires proof of “(1) acts causing death that involve a high
degree of probability of the victim’s death; and (2) a willful, deliberate, and
premeditated intent to cause extreme pain or suffering for the purpose of
revenge, extortion, persuasion, or another sadistic purpose.” (People v. Cook
(2006) 39 Cal.4th 566, 602.) “The intent to torture ‘is a state of mind which,
unless established by the defendant’s own statements (or by another witness’s
description of a defendant’s behavior in committing the offenses), must be
proved by the circumstances surrounding the commission of the offense
[citations], which include the nature and severity of the victim’s wounds.’ ”
(People v. Mungia (2008) 44 Cal.4th 1101, 1137.) The severity of the wounds
must not be given undue weight, because “severe injuries may also be
consistent with the desire to kill, the heat of passion, or an explosion of
violence.” (Ibid.)
Reviewing the record in the light most favorable to the judgment, we
conclude there is ample evidence to support a finding of deliberate and
premeditated intent to cause extreme pain or suffering for a sadistic purpose.
Warner does not dispute that Kayleigh’s death was caused by injury
that was inflicted by him or Krueger or both of them. He argues there is no
46
“specific evidence” as to which defendant inflicted the fatal injury and
suggests that the evidence points to Krueger rather than to him. But the
evidence points to both of them. Warner claims that Fermin Cisneros heard
Krueger, not Warner, hitting Kayleigh, but that is inaccurate. Fermin
Cisneros testified she heard Krueger hitting Kayleigh on one particular
occasion, but she also testified that “they” (that is, Krueger and Warner)
would hit Kayleigh. Warner points to Krueger’s history of violence, which is
undisputed, but there was also evidence that he spanked Kayleigh so hard he
left marks on her and that he had pushed Krueger against a door and then
punched the door next to her face so hard as to leave two holes. Both
Krueger and Warner denied beating Kayleigh and each denied seeing the
other beat her, but it remains undisputed that she was beaten.
The medical experts agreed that the fatal injury or injuries occurred
between the police visits to Krueger’s apartment on January 27 and 29.
During that time, the only people who had access to Kayleigh were Krueger,
Warner, Epperson and the friend Krueger visited on January 27 after the
police visit, and there is no evidence or suggestion that Epperson or the other
friend laid a hand on her. That leaves Warner and Krueger, who were in
Krueger’s 585-square-foot apartment for most of that time with no one
present but Kayleigh. The jury could have inferred that the injuries were
inflicted by Warner, or Krueger, or both of them. If the fatal injuries were
inflicted by Krueger, the jury could have inferred that Warner not only knew
about them, but also assisted Krueger in inflicting them or encouraged her
actions, since the injury required “severe” force, which would no doubt have
provoked an audible reaction from Kayleigh even if the force itself could not
be heard; the apartment was only 585 square feet; and noises in the
apartment carried to neighboring units, and would therefore be heard within
47
the apartment as well. And apart from the evidence that Warner himself
disciplined Kayleigh, there was evidence from Fermin Cisneros that he joined
in Krueger’s disciplining her.
There is evidence of sadistic intent in the sheer number of bruises that
covered Kayleigh’s small body as a result of a beating or beatings that
occurred within days or hours of her death: 41 separate injuries, of which 8
to 15 were on her abdomen. The bruising, which resulted from moderate to
severe force, was consistent with beating, not with accidental injury or
spanking. And there was evidence of prolonged deterioration of Kayleigh’s
health, including abuse and attempts to conceal it. In addition to the injuries
inflicted on Kayleigh shortly before her death, Kayleigh had injuries that
occurred longer ago, including a broken rib, and there is evidence from family
members and neighbors that she had exhibited a number of bruises in the
weeks before her death and that Krueger and Warner gave conflicting
accounts of them. Dr. Crawford-Jakubiak testified her injuries, the result of
repeated episodes of blunt-force trauma, were “far beyond” what would
commonly be suffered by a three-and-a-half-year-old, despite a litany of
repeated excuses, like falling off a bike, bumping a head on the table, tripping
over a clothes hamper, hitting a chin on a bathtub, or an overly energetic
embrace while Kayleigh was sitting on a toilet seat. Toward the end of her
life Kayleigh also exhibited an unusually subdued demeanor. Kayleigh
played outside less often, and when she did, she was often alone. In the last
month of her life, Kayleigh indicated to at least three different people that
she did not want even to be at Krueger’s apartment.
There is also evidence that Warner was well aware of the injuries to
Kayleigh and the pain they caused, and his callous indifference suggests, not
deference to Krueger’s role as Kayleigh’s parent, but rather the desire and
48
intent to cause pain and suffering. (People v. Misa (2006) 140 Cal.App.4th
837, 843.) Warner admitted to Detective Hess that he had known that
Kayleigh had bruises for at least a week before she died, and that at the time
of the January 29 welfare check, he was aware that she was covered with
bruises. Yet he said nothing about that to the police, and remained silent
when Krueger falsely told them that Kayleigh had the flu. Apart from his
admitted knowledge of the extensive bruising, the jury could infer that
Warner was aware that Kayleigh was in pain because even though she was
just three-and-a-half when she died, she was fully able to communicate how
she felt, as shown by her interactions with Krueger, Robin, Epperson, Officer
Chambers, and Warner himself. There was evidence from Dr. Crawford-
Jakubiak that Kayleigh would have demonstrated pain from her broken rib
and fatal injuries and would have communicated what happened to her, and
jurors could infer that Kayleigh did indeed communicate about it, and that
the computer search for “stabbing pain next to bellybutton” was conducted in
response to a complaint from Kayleigh.
There is evidence of Warner’s sadistic intent in leaving Kayleigh alone
in the bathroom on the morning of January 30, despite her extensive bruising
and the fact that she had vomited extensively the day before. The jury could
infer sadistic intent from Warner’s practice of requiring Kayleigh to sit on the
toilet for lengthy periods until she relieved herself, and his instruction that
she remain in her highchair and finish eating after Kayleigh said she was full
and threw up.
Warner’s conduct after Kayleigh’s death provides further evidence that
he had acted with sadistic intent. Even if the jury believed that Warner had
put Kayleigh’s body in the freezer to preserve evidence, the jury had evidence
of Warner’s treatment of the body that was consistent with sadistic treatment
49
of her while she was alive: he told Detective Hess that hours before he put
her body in the freezer, he had folded it and placed it in a plastic bag and in a
suitcase in her bedroom, where it remained for some time, and he asked his
friends for help getting rid of the body. Warner’s conduct after Kayleigh’s
death also provides evidence that he acted with deliberate and premediated
intent. He went out to get ice cream, and ate it. Despite his friend’s
insistence that he call the police, he failed to do so, and instead tried to flee
with Krueger. The flight was not precipitous: Krueger testified that she
found Kayleigh’s body and awakened Warner on the afternoon of January 30,
but they did not flee until the morning of February 1. He took time to pack
his things, including a PlayStation that he and Krueger tried to sell at a local
store. And the jury could have inferred that he and Krueger worked together
to conceal evidence, as reflected in the latex gloves found in the apartment
and the fact that he and Krueger left the apartment with a bag that was
never found. Warner did not appear to be in any distress in video footage
taken after Kayleigh’s death. Before they were arrested, he and Krueger took
BART to San Francisco, where they went to a fast food restaurant and then
to the beach. On the day they were arrested, they had gone to a restaurant
for breakfast. On the drive to the police station after his arrest, Warner was
quiet except for a comment about a “cool” paint job on an old car.
We agree with the Attorney General that a reasonable juror could have
concluded that as Krueger and Warner increased their use of
methamphetamine, they found Kayleigh to be an annoyance and obstacle to
their drug use. Eventually, Krueger and Warner were screaming at her to be
quiet, as heard by a neighbor. In light of Kayleigh’s injuries and Krueger’s
and Warner’s conduct, the jury could conclude that they took to beating her
with premediated and deliberate intent to cause pain for the sadistic purpose
50
of persuading the toddler to simply be quiet and leave them alone, escalating
their assaults over time to achieve their aim when screaming at her or
leaving her alone in a room with a movie was not enough.
In sum, the jury could reasonably have inferred that Warner acted with
a sadistic intent to cause Kayleigh pain and suffering from evidence of the
number and severity of Kayleigh’s injuries and Warner’s behavior before and
after Kayleigh’s death. Because we conclude that substantial evidence
supports the verdict of first degree murder under a torture murder theory, we
do not reach Warner’s argument that in the absence of such evidence the
judgment may not be reduced to second degree murder.
b. Torture Special Circumstance
The torture special circumstance, as set forth in section 190.2,
subdivision (a)(18), requires proof of first degree murder and proof “that
defendant intended to kill and had a torturous intent, i.e., an intent to cause
extreme pain or suffering for the purpose of revenge, extortion, persuasion, or
another sadistic purpose.” (People v. Streeter (2012) 54 Cal.4th 205, 237,
italics added.) “The relevant inquiry . . . is whether defendant harbored an
intent to kill when he tortured” the victim. (People v. Jennings (2010) 50
Cal.4th 616, 647.) As with intent to torture, there is rarely direct evidence of
intent to kill, which must usually be derived from the circumstances,
including the defendant’s actions. (People v. Smith (2005) 37 Cal.4th 733,
741.)
In the context of concluding that substantial evidence supports
Warner’s conviction for murder by torture, we have explained that the record
contains substantial evidence that Warner acted with a torturous intent. We
turn now to the intent to kill. Warner argues that even if we affirm the
murder conviction, we must strike the special circumstance finding because
51
the evidence here, all of which is circumstantial, is insufficient to support a
finding that he had the requisite intent to kill. We have carefully reviewed
the record and agree that the special circumstance finding must be reversed.
The evidence that supports the first degree murder by torture
conviction does not necessarily support the requisite intent to kill. The large
number of bruises to Kayleigh’s body, including bruises to places other than
her abdomen evidence the intent to cause pain, but not necessarily intent to
kill. Warner’s failure to contact the police after Kayleigh’s death, his
preventing Krueger from contacting them, and his flight with her are
evidence of consciousness of guilt and of premeditated conduct, but not
necessarily evidence of intent to kill. Warner’s knowledge that Kayleigh was
extensively bruised shows awareness of the horrible pain Kayleigh suffered,
but does not necessarily support an inference of the intent to kill Kayleigh.
The evidence that he tried to determine exactly what Kayleigh had ingested,
tried to induce vomiting after learning she had drunk tainted water, and then
tried to get her to eat popsicles with electrolytes is inconsistent with an
intent to kill, because it supports the inference that although Warner wanted
Kayleigh to be quiet and leave him and Krueger alone, and took drastic steps
to do so, he did not want Kayleigh to die.
We conclude that the record does not contain substantial evidence to
support a finding that Warner acted with the intent to kill; in other words,
we conclude that a reasonable jury could not be convinced that the only
reasonable conclusion supported by the circumstantial evidence was that
Warner had the intent to kill, as required by CALCRIM No. 705, with which
52
the jury was instructed.17 Therefore we reverse the jury’s finding that the
special circumstance was true.
c. Warner’s Failure to Seek Medical Care for Kayleigh
In contending that the verdict is not supported by substantial evidence,
Warner argues that his failure to seek medical aid for Kayleigh cannot give
rise to liability for first degree torture murder and that his conviction cannot
be upheld on that ground. This argument is of no avail, because it is based
on the incorrect assumption that Warner’s failure to seek medical care was
the legal theory supporting his conviction—an assumption that pervades his
arguments on appeal and that we address further in sections E and F, below.
As we have discussed, Warner’s failure to seek medical care for Kayleigh is
simply evidence of his intent, and it is by no means the only evidence of his
intent.
d. Intent and Warner’s Methamphetamine Use
In arguing about the purported lack of evidence to support findings of
intent, Warner suggests that he could not have formed any requisite specific
intent between January 27 and 29. He argues that the evidence showed he
“was under the influence during much of the period between January 27 and
January 29,” and that if he did anything to Kayleigh during that time “he
was almost surely ‘high’ when he did so.” Warner conveniently disregards
the substantial evidence that even if he was “under the influence,” he was
able to think clearly and formulate intent. For example, after the police visit
on January 27, he sent a coherent text to Krueger describing what he had
17CALCRIM No. 705 instructs that before relying on circumstantial
evidence to conclude that the defendant had the intent or mental state
required for the special circumstance, the jury must be “convinced that the
only reasonable conclusion supported by the circumstantial evidence is that
the defendant had the required intent or mental state.” (Italics added.)
53
done that morning. On January 28, after Krueger fainted, Warner advised
her to lie down, made her soup, and said he would take care of Kayleigh. And
Warner himself told the police that when he saw Kayleigh in the bathroom on
January 29, before the police arrived, he questioned her carefully and
strategically to “get a real answer out of her.”
All of this suggests that Warner had the ability to form intent, and
Warner ultimately concedes as much in his appellate briefing. Referring to
the fact that he didn’t call for help when Kayleigh was throwing up because
of his concern about his own legal liability, he argues that his intent was to
avoid criminal liability, and not to inflict pain. The jury could well have
reasonably believed that he had both intents.
B. Prosecution Statement About Reasonable Doubt
Warner argues that his trial counsel was ineffective in failing to object
to the prosecution’s misstatement of the reasonable doubt standard in
rebuttal argument, and that as a result the convictions must be reversed. We
conclude that Warner has failed to show ineffective assistance of counsel.
1. Additional Background
a. Jury Instructions
As part of the instructions given to the jury before closing arguments,
the trial court explained:
“A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond a
reasonable doubt.
“Whenever I tell you the People must prove something, I mean they
must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is
proof that leaves you with an abiding conviction that the charge is true.” (See
CALCRIM No, 220, “Reasonable Doubt.”)
54
The instructions about circumstantial evidence included CALCRIM No.
224, “Circumstantial Evidence: Sufficiency of Evidence”; No. 704 “Special
Circumstances: Circumstantial Evidence—Sufficiency”; and No. 705,
“Special Circumstances: Circumstantial Evidence—Intent or Mental State.”
The substance of those instructions is contained in CALCRIM No. 224:
“Before you may rely on circumstantial evidence to conclude that a fact
necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that conclusion
beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant is guilty. If
you can draw two or more reasonable conclusions from the circumstantial
evidence and one of those reasonable conclusions points to innocence and
another to guilt, you must accept the one that points to innocence. However,
when considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.”
b. Closing Arguments
Warner’s counsel argued in closing that there was no evidence as to
certain elements of the crimes, and then stated:
“[T]he district attorney is saying that there is circumstantial evidence
from which you can infer what I’m saying is the missing elements.
“But before you can use circumstantial evidence each chain in the link
of circumstances must be proved beyond a reasonable doubt. . . . Further, . . .
the result must be reasonable. It can’t be unreasonable. But if there are two
equally reasonable results or more . . . you’re required by law to reject the
interpretation that would indicate guilt for the defendant and to adopt that
55
reasonable interpretation that would reject the idea the defendant was
guilty.”
In his rebuttal argument, the district attorney responded to defense
counsel’s discussion of circumstantial evidence, and argued that although the
defense had implied that circumstantial evidence was less important or
valuable than direct evidence, the jury instructions were clear that
circumstantial and direct evidence were both acceptable as types of evidence:
“Neither is necessarily more reliable than the other. Neither is entitled
to any greater weight than the other. And how else do you prove an intent in
a case other than by circumstantial evidence?
“You have to look at what are the things we know, what’s the evidence
that we know happened here? What’s the testimony we know? That gives us
someone’s intent. Because, as I said in my first argument, defendant Warner
didn’t tell Sergeant Hess I intended to kill Kayleigh, so we have to prove that
intent by circumstantial evidence.
“Reasonable doubt simply means the Prosecution’s interpretation is
reasonable and the Defense interpretation is unreasonable. But there’s only
one reasonable interpretation of the evidence to lead wherever that takes you
and in this case it’s guilt. It’s guilt.”
On appeal, Warner argues that the sentence, “Reasonable doubt simply
means the Prosecution’s interpretation is reasonable and the Defense
interpretation is unreasonable,” misstated the reasonable doubt standard
and created a reasonable likelihood that the jury would apply a standard less
than proof beyond a reasonable doubt by erroneously suggesting that as long
as the prosecution’s interpretation of the evidence was reasonable and
Warner’s was not, the prosecution had met its burden of proof. Warner’s trial
counsel did not object to the district attorney’s statement.
56
2. Applicable Law and Standard of Review
To prevail on a claim of ineffective assistance of counsel, an appellant
must show that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that counsel’s
failure to meet that standard was prejudicial. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688, 694 (Strickland).)
The reviewing court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”
(Strickland, supra, 466 U.S. at p. 689.) Thus, the adequacy of counsel’s
performance “is presumed unless the record affirmatively excludes a rational
basis for the trial attorney’s choice. (People v. Musselwhite (1998) 17 Cal.4th
1216, 1260.)
To show prejudice, appellant must show “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p.
694.)
Advocates, including prosecutors, “are given significant leeway in
discussing the legal and factual merits of a case during argument.” (People v.
Centeno (2014) 60 Cal.4th 659, 666 (Centeno).) Thus, a prosecutor may
“argue that the jury may reject impossible or unreasonable interpretations of
the evidence and to so characterize a defense theory”; “urge that a jury may
be convinced beyond a reasonable doubt even in the face of conflicting,
incomplete, or partially inaccurate accounts”; and “argu[e] that the jury must
‘ “decide what is reasonable to believe versus unreasonable to believe” and to
“accept the reasonable and reject the unreasonable.” ’ ” (Id. at p. 672.) But
“ ‘it is improper for the prosecutor to misstate the law generally [citation],
57
and particularly to attempt to absolve the prosecution from its . . . obligation
to overcome reasonable doubt on all elements [citation].’ ” (Id. at p. 666,
quoting People v. Marshall (1996) 13 Cal.4th 799, 831.) When attacking a
prosecutor’s remarks to the jury about the reasonable doubt standard in
closing argument, “the defendant must show that, ‘[i]n the context of the
whole argument and the instructions’ (Marshall, supra, 13 Cal.4th at p. 831),
there was ‘a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner. [Citations.]
In conducting this inquiry, we “do not lightly infer” that the jury drew the
most damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]’ ” (Centeno, supra, 60 Cal.4th at p.
667.).) If there is a reasonable probability that the prosecutor’s argument
caused one or more jurors to convict the defendant based on a lesser standard
than proof beyond a reasonable doubt, the conviction must be reversed. (Id.
at p. 677.)
3. Analysis
Taken literally and in isolation, the statement of which Warner
complains is opaque, to say the least, but nevertheless incorrect. The term
“reasonable doubt” may be difficult to define, but it does not “simply mean[ ]
the Prosecution’s interpretation is reasonable and the Defense interpretation
is unreasonable.”
Although the prosecutor’s statement was incorrect, defense counsel
could have reasonably concluded that objecting to it would not benefit his
client. In the context of the prosecutor’s argument taken as a whole,
including his opening argument, the defense argument, and the rest of his
rebuttal, the remark that is challenged here was not likely to be interpreted
as a statement about the definition of reasonable doubt; instead, it was
58
almost certainly seen as a reference to the instructions concerning the
sufficiency of circumstantial evidence, and in particular to the portion of the
instructions stating that “when considering circumstantial evidence, you
must accept only reasonable conclusions and reject any that are
unreasonable.” (CALCRIM Nos. 224, 704, 705.) Not only was the district
attorney’s statement part of his discussion of circumstantial evidence, but
also it was immediately followed by this sentence: “But there’s only one
reasonable interpretation of the evidence to lead wherever that takes you and
in this case it’s guilt.” In these circumstances, defense counsel could have
reasonably concluded that an objection would likely result in the district
attorney elaborating in his rebuttal on the unreasonableness of the
interpretation urged by the defense, at a point in the proceedings when
defense counsel had no further opportunity to argue. Accordingly, we do not
conclude that defense counsel was deficient in failing to object to the district
attorney’s remark.
Even if we were to assume that defense counsel’s performance was
deficient, we would conclude that Warner has not shown prejudice. The
Attorney General contends that the statement suggests, to the benefit of the
defendant, that there is a reasonable doubt (and therefore the defendant
must be acquitted) if the “prosecution’s interpretation is reasonable and the
Defense interpretation is unreasonable.” We doubt that the jury would have
interpreted the statement in this way, because it would make no sense for the
prosecution to argue such a thing. But we are not persuaded by Warner’s
argument that the prosecutor’s statement created a reasonable likelihood
that the jury would apply a standard less than proof beyond a reasonable
doubt.
59
To begin, Warner mischaracterizes the prosecution’s statement when
he claims “the prosecutor stated that proof beyond a reasonable doubt
required only that ‘the Prosecution’s interpretation is reasonable and the
Defense interpretation is unreasonable.’ ” That is not what the prosecutor
said; furthermore, in context the remark was most likely understood as a
reference to the instructions about circumstantial evidence, as we have
explained.
Further, the jury had been correctly instructed that the prosecution
was required to prove guilt beyond a reasonable doubt, and that “[p]roof
beyond a reasonable doubt is proof that leaves you with an abiding conviction
that the charge is true.” Appellate courts “ ‘presume that jurors treat the
court’s instructions as a statement of the law by a judge, and the prosecutor’s
comments as words spoken by an advocate in an attempt to persuade.’ ”
(People v. Thornton (2007) 41 Cal.4th 391, 441.) Warner offers us no reason
to believe that the jurors disregarded the trial court’s instructions and
applied a standard less than proof beyond a reasonable doubt, particularly in
view of the trial court’s instruction that the jury must follow the law as
explained by the court (see CALCRIM No. 200, “Duties of Judge and Jury”),
the trial court’s assurance to the jury that they would be given an original
and a copy of the jury instructions to review as they deliberated, and the trial
court’s statement in connection with its post-argument instructions about
greater and lesser crimes and completion of the verdict forms that,
“[W]henever I tell you the people must prove something, I mean they must
prove it beyond a reasonable doubt.” (CALCRIM No. 3517, “Deliberations
and Completion of Verdict Forms.”)
Warner argues that his case is like Centeno, where our Supreme Court
concluded that it was reasonably likely that the prosecutor misled the jury
60
about the applicable standard of proof and “diluted the People’s burden”
where the prosecutor “did not simply urge the jury to ‘ “accept the reasonable
and reject the unreasonable” ’ in evaluating the evidence before it,” but
instead “confounded the concept of rejecting unreasonable inferences, with
the standard of proof beyond a reasonable doubt. She repeatedly suggested
that the jury could find defendant guilty based on a ‘reasonable’ account of
the evidence.” (Centeno, supra, 60 Cal.4th at p. 673.) The cases are
distinguishable. Most significantly the objectionable portion of the
prosecutor’s argument in Centeno was lengthy and the prosecutor repeatedly
suggested that all that was required of the prosecutor was to provide a
reasonable interpretation of the evidence; here, in contrast, the prosecutor
made a single objectionable statement, which, though inaccurate when taken
in isolation, was not misleading when taken in context. As our Supreme
Court stated in Centeno, “The standard of proof is a measure of the jury’s
level of confidence. It is not sufficient that the jury simply believe that a
conclusion is reasonable. It must be convinced that all necessary facts have
been proven beyond a reasonable doubt.” (Id. at p. 673.) We see nothing in
the prosecutor’s argument that undermined the requirement that the People
prove their case against Warner beyond a reasonable doubt.
C. Pinpoint Instruction on Aiding and Abetting
Warner argues that the trial court erred in giving the jurors a pinpoint
instruction on aiding and abetting. Because his counsel did not object to the
instruction at trial, Warner argues that the issues he raises are properly
addressed on appeal under Penal Code section 1259, which permits appellate
review of any instruction that affects the defendant’s substantial rights, even
if no objection was made at trial. He further argues that if we conclude that
his claims of error have been forfeited on appeal, the forfeiture was the result
61
of prejudicial ineffective assistance of counsel. We assume, without deciding,
that the issues are properly raised on appeal, and we conclude that the
challenged instruction was a correct statement of the law and that Warner
has not shown that the instruction was misleading or prejudicial.
Accordingly, we do not reach the issue of ineffective assistance.
1. Additional Background
The trial court instructed the jury on aider and abettor liability with
CALCRIM No. 400, “Aiding and Abetting: General Principles,” and a
modified version of CALCRIM No. 401, “Aiding and Abetting: Intended
Crimes.”18
18
The trial court read the instructions to the jury as follows: “A person
may be guilty of a crime in two ways: One, he or she may have directly
committed the crime, and I will call that person the perpetrator; two, he or
she may have aided and abetted a perpetrator who directly committed the
crime. The person is guilty of a crime whether he or she committed it
personally or aided and abetted the perpetrator. [¶] To prove that a
defendant is guilty of a crime based upon aiding and abetting that crime, the
People must prove that: One, the perpetrator committed the crime; two, the
defendant knew that the perpetrator intended to commit the crime; three,
before or during the commission of the crime the defendant intended to aid
and abet the perpetrator in committing the crime; and, four, the defendant’s
words or conduct did in fact aid and abet the perpetrator’s commission of the
crime. [¶] Someone aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically intends to and does
in fact, aid, facilitate, promote, encourage or instigate the perpetrator’s
commission of that crime. If all of these requirements are true the defendant
does not need to actually have been present when the crime was committed to
be guilty as an aider and abettor. [¶] If you conclude that the defendant was
present at the scene of the crime or failed to prevent the crime you may
consider that fact in determining whether the defendant was an aider and
abettor. However, the fact that a person is present at the scene of a crime or
in the absence of a legal duty fails to prevent the crime does not by itself
make him or her an aider and abettor.”
62
The prosecutor requested, and the trial court gave the jury, a
supplemental pinpoint instruction on aiding and abetting drawn from People
v. Culuko (2000) 78 Cal.App.4th 307, 321 (Culuko):
“Those who aid and abet a crime and those who directly perpetrate the
crime are principals and equally guilty of the commission of that crime.
“You need not unanimously agree nor individually determine whether a
defendant is an aider and abettor or a direct perpetrator. The individual
jurors themselves need not choose among the theories so long as each is
convinced of guilt. There may be a reasonable doubt that defendant was the
direct perpetrator and a similar doubt that a defendant was the aider and
abettor, but no such doubt that a defendant was one or the other.”
2. Applicable Law and Standard of Review
We review the legal adequacy of a jury instruction de novo. (People v.
Cole (2004) 33 Cal.4th 1158, 1211 (Cole).) “In reviewing a claim that the
court’s instructions were incorrect or misleading, we inquire whether there is
a reasonable likelihood the jury understood the instructions as asserted by
the defendant.” (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.)
We consider the instructions as a whole, in the context of the trial record and
arguments of counsel. (People v. Mathson (2012) 210 Cal.App.4th 1297,
1312.) We “ ‘ “assume that the jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are given.” ’ ” and
we interpret the instructions “ ‘if possible, so as to support the judgment
rather than defeat it if they are reasonably susceptible to such
interpretation.’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
3. Analysis
Warner raises two challenges to the pinpoint instruction, which we
consider in turn.
63
First, he argues that by telling the jurors they were not required to
“individually determine” whether he was an aider/abettor or direct
perpetrator, the pinpoint instruction implied that the jurors were not
required to apply the principles set forth in the aiding and abetting
instructions and therefore amounted to a failure to give any instructions on
aiding and abetting. He contends that the instruction violated his Sixth and
Fourteenth Amendment rights by permitting the jurors to “bypass”
CALCRIM No. 401 and convict him based on proof insufficient to meet the
standard of guilt beyond a reasonable doubt.
The language at issue in the pinpoint instruction is an accurate
statement of the law, as reflected in People v. Santamaria (1994) 8 Cal.4th
903 (Santamaria), the source of the language in Culuko that the trial court
adopted here. (Culuko, supra, 78 Cal.App.4th at p. 323-324.) In Santamaria,
our Supreme Court stated, “Not only is there no unanimity requirement as to
the theory of guilt, the individual jurors themselves need not choose among
the theories, so long as each is convinced of guilt. Sometimes, as probably
occurred here, the jury simply cannot decide beyond a reasonable doubt
exactly who did what. There may be a reasonable doubt that the defendant
was the direct perpetrator, and a similar doubt that he was the aider and
abettor, but no such doubt that he was one or the other.” (Santamaria,
supra, 8 Cal.4th at p. 919.)
Warner argues in a conclusory fashion that even if the language is an
accurate statement of the law it created a reasonable likelihood that jurors
would vote to convict without going through the elements of aider and abettor
liability as set forth in CALCRIM No. 401. We reproduce his argument here:
“After all, if a juror understands that he need not pick any particular theory,
why would that juror believe it necessary to assess the defendant’s guilt
64
under an instruction which sets forth that theory? Instead, a juror who had
reasonable doubt whether Warner was the actual killer could just skip the
messy details of the aiding and abetting instruction, and vote to convict
because that juror was ‘convinced of guilt.’ ” This argument makes no sense.
Warner disregards the principle that individual instructions are not
considered in isolation. The pinpoint instruction was read immediately after
CALCRIM Nos. 400 and 401. We have no reason to believe that the jurors,
who were instructed with the elements of murder by torture (CALCRIM No.
521) and assault causing death of a child (CALCRIM No. 820), as well as the
general principles of aider/abettor liability (CALCRIM No. 400), and the
elements of aider and abettor liability (CALCRIM No. 401), would ignore
those instructions. The pinpoint instruction was unambiguous that each
juror must be convinced beyond a reasonable doubt that Warner was guilty
as “one or the other”: that is, as a direct perpetrator or as the aider and
abettor. For a juror to reach the conclusion that Warner was “one or the
other,” the juror would have to refer to the CALCRIM instructions about the
elements of the crimes and the elements of aider and abettor liability. The
pinpoint instruction cannot reasonably be read as telling the jurors to
disregard the other instructions on aiding or abetting.
Warner’s second challenge to the pinpoint instruction is that by
instructing the jury that a perpetrator and an aider and abettor are “equally
guilty,” the trial court allowed him to be convicted of first degree torture
murder and the special circumstance based on Krueger’s intent rather than
his own, and thereby violated his Sixth and Fourteenth Amendment rights.
The substance of his challenge is that the trial court gave the jury an
incorrect instruction on the intent element of aider and abettor liability.
65
Our Supreme Court has recognized that “[a]ll principals, including
aiders and abettors, are ‘equally guilty’ in the sense that they are all
criminally liable” and has also recognized that in some cases, a statement
characterizing all principals as “equally guilty” could be misleading as part of
jury instructions. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 433.) Here, considering the pinpoint instruction in the context of the
other jury instructions, we see no reason to believe that the jury believed it
could convict Warner of first degree torture murder on the theory that he was
an aider and abettor without concluding that Warner himself had the
requisite intent.19
In his closing argument, the prosecutor discussed at some length the
issue of intent to torture, and argued that the evidence showed that Warner
had the required intent.
By its terms, the pinpoint instruction refers to aiding and abetting with
respect to a particular crime: “Those who aid and abet a crime and those who
directly perpetrate the crime are principles and equally guilty of the
commission of that crime.” (Italics added.) The language is best interpreted
as referring back to CALCRIM No. 400, which states, “A person is guilty of a
crime whether he or she committed it personally or aided and abetted the
perpetrator.” Thus, the pinpoint instruction simply emphasizes that,
whether a person is a perpetrator of a crime or an aider and abettor of that
crime, the person is guilty of that crime. Both the pinpoint instruction and
19 Because we have already concluded that insufficient evidence of
intent to kill requires reversal of the special circumstance finding, we do not
address Warner’s argument about the jury instructions as it pertains to the
special circumstance.
66
CALCRIM No. 400 are silent on the issue of intent, which is addressed in
CALCRIM No. 401.
CALCRIM No. 401 is unambiguous that to be guilty of a crime as an
aider and abettor, a defendant must know that the perpetrator intended to
commit that crime, and must himself intend to aid and abet the perpetrator
in committing that crime. Thus, the instruction is clear that if Krueger is the
perpetrator of first degree murder by torture, which is the crime being
considered, her intent, though relevant to deciding whether aider and abettor
liability attaches to Warner, is not in itself determinative of his liability.
Further, we do not consider the pinpoint instruction, or even the aiding
and abetting instructions, in isolation. We interpret the instructions together
with the instruction on the elements of murder by torture (CALCRIM No.
521), which state that murder by torture requires intent to inflict extreme
and prolonged pain on the victim while the victim was alive as well as intent
to inflect that pain for a sadistic purpose. Thus, to convict Warner of murder
by torture as an aider and abettor, the jury had to find that Warner knew
that Krueger acted with the intent to torture and that Warner intended to,
and did, aid, facilitate, promote, encourage or instigate the crime of murder
by torture.
As Warner observes, the jury submitted two questions to the trial court
asking whether certain portions of instructions pertain to only a perpetrator
or also to an aider and abettor.20 He contends that the questions show that
20
The jury’s first question concerned part 1 of the instruction for the
special circumstance (i.e., to prove the special circumstance true, the People
must prove that “The defendant intended to kill Kayleigh Slusher”). The
jury’s question was in two parts. The first part was, “For the special
circumstance, does ‘defendant’ in part 1 of the instruction apply to only the
perp or also an aider & abet[o]r. Please clarify.” The second part was, “Does
intent to kill require a thought process or can it simply be behaviors resulting
67
the jury failed to understand how CALCRIM No. 401 “incorporates the
crime’s underlying elements,” and that the jury’s failure of understanding
likely extended to whether an aider and abettor must possess necessary
specific intent. We interpret the questions as showing that the jurors
appreciated the complexity of the issues before them. They were considering
carefully not only whether Warner was a perpetrator or aider and abettor
with respect to the crimes charged, but also how each of the elements
outlined in the instructions, including but not limited to those concerning
intent, applied to perpetrators and aiders and abettors.
Finally, we note that in addition to arguing that there was only weak
evidence of his own intent to torture, Warner suggests that a properly
instructed jury might well have concluded that Krueger struck Kayleigh and
in death. Please clarify.” It is apparent that the jury puzzled over the issue
of intent to kill. Although Warner did not object at trial to the trial court’s
response, he argues on appeal that the response was erroneous and that if we
conclude his claim of error is forfeited, he was denied effective assistance of
counsel. In view of our conclusion that the jury’s finding of intent to kill is
not supported by substantial evidence, we do not reach these arguments.
The jury’s second question concerned part 2 of the instruction for
assault causing death of a child (i.e., to prove the defendant guilty of the
crime, the People must prove that “The defendant did an act that by its
nature would directly and probably result in the application of force to the
child”). The question was, “For Charge 2: Assault Causing Death of Child,
part 2 of instruction, does the section “the defendant did an act” refer to only
the perp, or can it also apply to an aider & abet[o]r? Please clarify.” Notably,
in its response to the jury’s second question, the trial court included the
following language: “An aider and abettor is liable for the acts of the
perpetrator, and guilty of the crime charged, if you find the elements of
aiding and abetting have been met. See CALCRIM 400, 401, and the aiding
and abetting pinpoint instruction.” The final sentence of the response further
undermines Warner’s argument (which we have already rejected) that the
jury would interpret the pinpoint instruction as permitting them to bypass
the elements of aider and abettor liability.
68
that he stood by and did nothing “because he felt that disciplinary matters
were largely within her domain and it was not his place to interfere,” and
that Warner implied as much in his interview with Detective Hess, where he
said that he responded to Krueger’s asking whether they should call poison
control by saying, “Should we? . . . This is your daughter, you tell me.” Even
leaving aside our conclusion that Warner has not shown error in the pinpoint
instruction and our rejection of his premise that the jury was not properly
instructed, Warner’s suggestion rings hollow in light of the overwhelming
evidence that he took an active part in many aspects of Kayleigh’s life,
including day-to-day care, and toilet training, as well as disciplinary matters.
It was undisputed that he would lecture Kayleigh, put her in time outs that
lasted up to 30 minutes, and spank her hard enough to leave bruises.
D. Reference to “Duty” and “Failure to Act” in CALCRIM No. 520
Warner argues that his murder conviction must be reversed because
the jury instructions erroneously allowed the jury to convict him of murder
based on the invalid theory that he failed to perform a legal duty, a theory on
which, he says, the prosecution had relied in its argument. We are not
persuaded.
1. Additional Background
As proposed by the prosecution, CALCRIM No. 520, “First or Second
Degree Murder With Malice Aforethought (Pen. Code, § 187),” included
references to duty and failure to act, some of which Warner discusses in his
appeal. The prosecution’s proposed instruction is reproduced below; boldface
is used in the references to duty and failure to act. None of the boldface
language appeared in the version of CALCRIM No. 520 proposed by the
defense.
“The defendants are charged in Count 1 with murder.
69
“To prove that a defendant is guilty of this crime, the People must
prove that:
“1. The defendant committed an act that caused the death of another
person;
“AND
“2. When the defendant acted, he or she had a state of mind called
malice aforethought.
“There are two kinds of malice aforethought, express malice and
implied malice. Proof of either is sufficient to establish the state of mind
required for murder.
“The defendant acted with express malice if he or she unlawfully
intended to kill.
“The defendant acted with implied malice if:
“1. He or she intentionally committed an act, or intentionally failed
to act in those situations where he or she is under a legal duty to act.
“2. The natural and probable consequences of the act or omission or
failure to act were dangerous to human life;
“3. At the time he or she acted, he or she knew his or her act was
dangerous to human life;
“AND
“4. He or she deliberately acted with conscious disregard for human
life.”
“Malice aforethought does not require hatred or ill will toward the
victim. It is a mental state that must be formed before the act that causes
death is committed. It does not require deliberation or the passage of any
particular period of time.
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“An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without the
act. A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In deciding
whether a consequence is natural and probable, consider all of the
circumstances established by the evidence.
“A Parent has a legal duty to care for a Child.”
“If you conclude that the defendant owed a duty to Kayleigh
Slusher, and the defendant failed to perform that duty, his or her
failure to act is the same as doing a negligent or injurious act.”
“If you decide that the defendant committed murder, it is murder of the
second degree, unless the People have proved beyond a reasonable doubt that
it is murder of the first degree as defined in CALCRIM No. 521.”
During a conference before the trial court on jury instructions, the
prosecution acknowledged that the concept of legal duty did not apply to the
murder charge against Warner, and, as agreed at the conference, the version
of CALCRIM No. 520 given to the jury did not include the sentence, “A
Parent has a legal duty to care for a Child,” or the phrase “or intentionally
failed to act in those situations where he or she is under a legal duty to act”
in item 1 of the “implied malice” definition. The remaining boldfaced
language (i.e., the phrase “or omission or failure to act” in item 2 of the
“implied malice” definition and the paragraph that begins, “If you conclude
. . . .”) was not discussed at the conference and was included in the
instruction as provided to the jury.
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In closing argument, the district attorney never argued that Warner
had a duty to Kayleigh, or that Warner was guilty of murder based on his
failure to perform any duty.21
During the defense closing argument, defense counsel referred in error
to instructions concerning Warner’s liability for failing to act when he was
under a legal duty to act. The court immediately interjected that those were
not the instructions provided to the jury.
2. Applicable Law and Standard of Review
The trial court is required to instruct the jury on the principles of law
that are “closely and openly connected with the facts before the court, and
which are necessary for the jury’s understanding of the case.” (People v. St.
Martin (1970) 1 Cal.3d 524, 531.)
Instructions regarding the elements of a crime, including instructions
as to malice with respect to murder, affect the substantial rights of the
defendant, and are appropriately reviewed on appeal even in the absence of
an objection in the trial court. (§ 1259; People v. Hillhouse (2002) 27 Cal.4th
469, 503.) We review the legal adequacy of a jury instruction de novo. (Cole,
supra, 33 Cal.4th at p. 1211.)
3. Analysis
As a general matter, a defendant can be criminally liable for failing to
act only if the defendant has an existing legal duty to take positive action.
21
The district attorney did, however, argue that the failure to get
medical care for Kayleigh and the failure to inform the police during the
January 29 welfare check that Kayleigh had drunk something potentially
poisonous were evidence to support the finding that Warner had the intent to
kill. As we have discussed, however, we conclude that there was not
substantial evidence of intent to kill to support a finding of the special
circumstance.
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(People v. Heitzman (1994) 9 Cal.4th 189.) We agree with the parties that, as
a non-parent, Warner is not subject to any duty for the purposes of implied
malice murder, and that it was error for the trial court to include language
about duty and the failure to act in CALCRIM No. 520. By including that
language, the jury was instructed not only with the valid legal theory that
Warner could be convicted of murder on the basis of his acts, but also, though
imperfectly and incompletely, with the invalid legal theory that he could be
convicted based on his failure to act.
In People v. Aledamat (2019) 8 Cal.5th 1, our Supreme Court held that
when a jury is instructed with both a valid and invalid legal theory, “[t]he
reviewing court must reverse the conviction unless, after examining the
entire cause, including the evidence, and considering all relevant
circumstances, it determines the error was harmless beyond a reasonable
doubt.” (Id. at p. 3, citing Chapman v. California (1967) 386 U.S. 18, 24.) We
conclude that the error here is harmless, because other aspects of the jury’s
verdict leave no reasonable doubt that the jury made the findings necessary
to convict Warner of murder on a legally valid theory. (People v. Chun (2009)
45 Cal.4th 1172, 1203, 1205.)
Here, the jury found Warner guilty of first degree murder by torture,
which means that the jury found that Warner had the intent to torture. The
instructions for first degree murder by torture were explicit that guilt
requires performing an act. (CALCRIM No. 521.) Likewise, the instructions
for aiding and abetting were clear that liability as an aider or abettor
requires an act, in the form of “words or conduct.” (CALCRIM No. 401.)
Despite Warner’s argument to the contrary, the prosecution did not argue
that Warner’s failure to seek care for Kayleigh was the basis for a murder
conviction.
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Finally, Warner contends in passing that the trial court “exacerbated
its instructional error by making a similar mistake with CALCRIM No. 401”
on aiding and abetting. The instruction ended with the following language,
“If you conclude that defendant was present at the scene of the crime or failed
to prevent the crime, you may consider that fact in determining whether the
defendant was an aider and abettor. However, the fact that a person is
present at the scene of a crime, or, in the absence of a legal duty, fails to
prevent the crime does not, by itself, make him or her an aider and abettor.”
Warner claims that the phrase “or, in the absence of a legal duty,” was
prejudicial because it “suggested, through negative implication, that, if a duty
does exist, the failure to prevent a crime may make someone liable for aiding
and abetting.” There is no basis for prejudice here. The trial court stated
unambiguously that legal duty was not at issue, and in any event the
instruction on aiding and abetting, which we have discussed at some length
above, did not permit a finding that Warner was an aider and abettor solely
on the basis of the failure to act.
E. Lack of Jury Instruction on Involuntary Manslaughter
1. Additional Background
Warner’s requested jury instructions included CALCRIM No. 580, on
involuntary manslaughter as a lesser included offense of murder.22 The
instruction as presented in Warner’s request contained a blank space for the
22 The relevant portion of the instruction as requested is: “CALCRIM
580 [¶] . . . [¶] The defendant committed involuntary manslaughter if: [¶] 1.
The defendant committed a crime or a lawful act in an unlawful manner;
[¶] 2. The defendant committed the crime or act with criminal negligence;
AND [¶] 3. The defendant’s acts caused the death of another person.
[¶] Instruction[s] __________ tell[s] you what the People must prove in order
to prove that the defendant committed _______________ ”
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insertion of the action underlying the charge, and the trial court asked
defense counsel to provide the missing information, which counsel agreed to
do. Defense counsel subsequently withdrew the request, informing the court
that he concluded the instruction was not appropriate on the basis of
research he had conducted.
On appeal, Warner contends that the trial court committed reversible
error by failing to instruct the jury on involuntary manslaughter based on the
theory that Warner committed the noninherently dangerous felony of child
endangerment. Building further on his unsupported assumption that the
jury verdict rested solely on his failure to seek care for Kayleigh, and
therefore recognizing that there was “considerable evidence that he helped
bring about Kayleigh’s death through his inaction,” he argues that, even in
the absence of a legal duty, a reasonable juror could have found that he
“fail[ed] to seek medical care for Kayleigh when her condition was obviously
deteriorating.” He argues that although the evidence of his failure to seek
medical care for Kayleigh did not support a conviction for murder, it could
have supported a conviction for felony child endangerment, in which case the
proper verdict was involuntary manslaughter rather than murder.
2. Applicable Law and Standard of Review
Manslaughter is a lesser offense of murder, distinguished from murder
by mens rea. (People v. Rios (2000) 23 Cal.4th 450, 460.) Murder requires
malice, that is the intent to kill or conscious disregard for human life; in the
absence of malice, a defendant may be found guilty of manslaughter. (Ibid.)
Our Supreme Court has held that “an unintentional homicide committed in
the course of a noninherently dangerous felony” is punishable as involuntary
manslaughter “if that felony is committed without due caution and
circumspection.” (People v. Burroughs (1984) 35 Cal.3d 824, 835 (Burroughs),
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overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89
(Blakeley).) A felony is “noninherently dangerous” unless it is “so dangerous
that by its very nature, it cannot be committed without creating a substantial
risk that someone will be killed.” (Burroughs at p. 833.)
Felony child abuse is defined in section 273a, subdivision (a), which
provides punishment for “[a]ny person who, under circumstances or
conditions likely to produce great bodily harm or death, [1] willfully causes or
permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain
or mental suffering, or [3] having the care or custody of any child, willfully
causes or permits the person or health of that child to be injured, or [4]
willfully causes or permits that child to be placed in a situation where his or
her person or health is endangered.” (People v. Valdez (2002) 27 Cal.4th 778,
783 [quoting § 273a, subd. (a) and adding internal numbering].) Thus felony
child abuse includes not only active conduct in the form of direct assault, but
also passive conduct in the form of “ ‘endangering by extreme neglect.’ ”
(People v. Sargent (1999) 19 Cal.4th 1206, 1215-1216.) Felony child abuse is
a noninherently dangerous felony (Culuko, supra, 78 Cal.App.4th at p. 321);
and because it incorporates the element of criminal negligence, it is
necessarily a felony committed without due caution and circumspection and
can serve as the basis of a conviction for involuntary manslaughter under
Burroughs. (See People v. Valdez, supra, 27 Cal.4th at p. 788 [the negligence
required for a violation of section 273a, subdivision (a), “ ‘ “must be
aggravated, culpable, gross, or reckless, that is, the conduct of the accused
must be such a departure from what would be the conduct of an ordinarily
prudent or careful [person] under the same circumstances as to be
incompatible with a proper regard for human life . . . or an indifference to
consequences” ’ ”].)
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A trial court has a duty to instruct the jury on lesser included offenses
“only where there is ‘substantial evidence’ from which a rational jury could
conclude that the defendant committed the lesser offense, and that he is not
guilty of the greater offense.” (People v. DePriest (2007) 42 Cal.4th 1, 50.)
Accordingly, if there were substantial evidence from which the jury could
conclude that Warner lacked malice, that is, not just that he lacked the intent
to kill, but also that he did not act with conscious disregard for life, the trial
court would have had the duty to instruct on involuntary manslaughter. In
the absence of such evidence, there is no error: “Speculation is an insufficient
basis upon which to require the trial court to give an instruction on a lesser
included offense.” (People v. Wilson (1992) 3 Cal.4th 926, 942 [failure to
instruct on theft, a lesser included offense of robbery, is not error where there
is no evidence to support the theory that the underlying offense, if committed
by defendant, was other than robbery].) Failure to instruct on a lesser
included offense is prejudicial if there is a reasonable probability that the
lack of the instruction affected the outcome. (Blakeley, supra, 23 Cal.4th at p.
93.)
We review independently the trial court’s failure to instruct on a lesser
included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733 [whether to
instruct on a lesser included offense is a mixed question of law and fact that
is “predominantly legal” and therefore “examined without deference”].)
3. Analysis
Warner fails to show error. He ignores the substantial evidence that
shows he acted with conscious disregard for life, a finding that supports
implied malice. That evidence includes, for example, Krueger’s statement to
the police that Warner admitted hitting Kayleigh so hard that he left bruises,
Fermin Cisneros’s testimony that she heard both Warner and Krueger hit
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Kayleigh near the end of her life, and Warner’s own statements to Detective
Hess admitting that he left Kayleigh alone in the bathroom covered with
bruises. This evidence, which goes beyond mere inaction, would have
resulted in a verdict of second degree murder even in the absence of a finding
of the intent to torture. (CALCRIM No. 520.)
Warner concedes that the jury rejected the verdict of implied malice
second degree murder on which the court had instructed, and he recognizes
that as a result the failure to instruct on involuntary manslaughter was not
prejudicial on its own. He therefore argues that the failure to instruct on
involuntary manslaughter was prejudicial when viewed in combination with
the errors that we analyzed in parts B, C, and D of this discussion. In effect
he speculates that in the absence of the alleged errors, the jury would have
acquitted Warner of first degree murder and would have then addressed the
possibility of a verdict for second degree murder or involuntary
manslaughter, and might have opted for involuntary manslaughter if it had
understood that Warner had no duty to seek medical care for Kayleigh and
therefore a murder conviction could not be based on his failure to seek such
care. The argument lacks merit.
We disagree with Warner’s premise that the trial court erred in failing
to instruct the jury on involuntary manslaughter. Furthermore, of the
various errors that Warner has alleged as contributing to prejudice on this
issue, the only one we find is the inclusion of language about duty and failure
to act in the jury instruction for murder with malice aforethought (CALCRIM
No. 520). That error, as we have discussed, was harmless, and does not
suffice to show prejudice here.
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F. Cumulative Prejudice
Warner relies on the principle that a series of independently harmless
trial errors “may in some circumstances rise by accretion to the level of
reversible and prejudicial error” (People v. Hill (1998) 17 Cal.4th 800, 844) to
argue that the alleged errors we analyzed in sections B, C, D and E of this
Discussion caused cumulative prejudice on the murder count, and that the
alleged error we analyzed in section B, along with one of the errors we
analyzed in section C (specifically, the instruction that the jurors were not
required to “individually determine” whether Warner was a direct
perpetrator or an aider and abettor), caused cumulative prejudice on the
count of assault resulting in the death of a child under eight years old.
We shall reverse the special circumstance finding. We have rejected
Warner’s other claims of error, except the reference to “duty” and “failure to
act” in the murder instruction, which we concluded was harmless.
Accordingly, we do not reach Warner’s claim of cumulative prejudice.
DISPOSITION
We reverse the special circumstance finding for lack of substantial
evidence, and remand the matter for resentencing. The judgment is
otherwise affirmed.
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_________________________
Miller. J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Richman, J.
A152049, People v. Warner
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