People v. Alvarez

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO JAY ALVAREZ,

Defendant and Appellant.

S089619

Kern County Superior Court

68352A

August 18, 2025

Justice Groban authored the opinion of the Court, in which

Justices Corrigan, Liu, Kruger, Jenkins, and Evans concurred.

Justice Liu filed a concurring opinion.

Justice Evans filed a concurring opinion.

Chief Justice Guerrero filed a concurring and dissenting

opinion.

PEOPLE v. ALVAREZ

S089619

Opinion of the Court by Groban, J.

A jury convicted defendant Francisco Jay Alvarez of the

first degree murders of Tyler Ransom (Tyler) and Dylan Vincent

(Dylan) and of assaulting Dylan, a child under the age of 8, with

force likely to produce great bodily injury, resulting in death.

(Pen. Code,1 §§ 187, subd. (a), 273ab.) The jury found true a

multiple murder special circumstance as to each count. (§ 190.2,

subd. (a)(3).) At the penalty stage, the jury returned a death

verdict.

The defense filed a motion for a new trial based upon

allegations of juror misconduct. After a hearing, the trial court

found juror misconduct and granted the motion for a new trial.

On retrial, the jury again found Alvarez guilty on all three

counts and found the multiple murder special circumstances

true. The jury again returned a death verdict and this time the

court entered a judgment of death for the first degree murder

convictions. The trial court also sentenced Alvarez to 25 years

to life for assault on a child causing death but stayed that term.

This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a);

§ 1239, subd. (b).) Because this case raises a sufficiency of the

evidence claim, we review the trial evidence in some detail. For

the reasons that follow, we strike a $200 parole revocation fine

1

All further undesignated statutory references are to this

code.

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imposed under section 1202.45 and in all other respects affirm

Alvarez’s judgment.

I. FACTS

A. Guilt Phase

In October 1994, Frank Alvarez and Shari Ransom (Shari)

began a romantic relationship. Alvarez soon moved in with

Shari and her infant son, Tyler, at her family home in

Bakersfield. On November 15, 1994, Tyler suffered numerous

and ultimately fatal physical injuries while Alvarez and Shari

were at home with him. Tyler’s right tibia and fibula were

fractured. His ribcage had suffered approximately 40 fractures

on three separate occasions. Alvarez was charged with murder,

but the charges were initially dropped.

However, two years later, Alvarez began a romantic

relationship with Diane Borgsdorf. On October 23, 1996,

Borsdorf’s four-year-old son Dylan died from injuries suffered

while in Alvarez’s care. Dylan had 70 to 75 bruises all over his

body. Dylan bled to death internally after blunt-force trauma to

his abdomen caused his internal organs to impinge upon his

spine. Alvarez was subsequently convicted for both the murder

of Tyler and the murder of Dylan.

1. Prosecution Witnesses for Tyler Ransom’s Murder

a. Shari Ransom’s testimony

Tyler Ransom was the infant son of Shari and Brian

Ransom (Brian). The three lived in a house owned by Shari’s

parents in Bakersfield. However, Brian and Shari separated

and Brian moved out. Shari and Alvarez soon began a romantic

relationship and Alvarez moved in to live with Shari, about two

or three weeks before Tyler’s death.

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Shari testified that she did not see Alvarez acting “mean”

toward Tyler. She saw him be “real good” and “gentle” around

Tyler and call him a “good boy.” However, Shari saw Alvarez

turn Tyler’s head sharply to one side once when he was putting

Tyler down in his crib. Shari told Alvarez not to do it again

explaining that it could hurt Tyler.

In November 1994, after Alvarez moved in, Shari began

noticing bruises on Tyler’s wrists, ears, buttocks, and back.

There were fingernail marks inside both ears. Tyler seemed

“more cranky,” whined when picked up, and would not smile

anymore. Shari testified in an earlier hearing that she possibly

could have caused the bruises on Tyler’s back because they

matched her fingers. However, she did not actually believe that

she had caused the bruises, and she had never put any finger

mark bruises on Tyler before Alvarez moved in.2

On the morning of November 8, 1994, Alvarez woke Shari

up saying that he had performed CPR on Tyler. Shari went and

found Tyler lying on the floor in the den and he looked fine.

Alvarez told Sharri that he had gone into Tyler’s room and found

Tyler had stopped breathing. Shari thought Alvarez was lying.

On November 12, 1994, Shari noticed that Tyler

whimpered and acted sore when she picked him up, but thought

it was congestion. Shari was worried and asked her father

Albert T. to drive Tyler to the doctor. At the suggestion of her

father, Shari’s stepmother Elaine T. drove them to the hospital.

2

Multiple witnesses, including Tyler’s treating physicians

as well as friends and family, corroborated that Tyler did not

have injuries from physical abuse before October 1994.

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Shari and Tyler were discharged from the hospital with

medication for pneumonia.

On November 15, 1994, Shari got up in the morning and

took care of Tyler. Alvarez left. When Shari changed Tyler’s

diapers, she did not see anything wrong with him. Tyler

grimaced though when Shari picked him up from the chest area.

Shari’s sister-in-law came over for a short while.

Alvarez returned home in the afternoon. He went to the

neighbor’s house for about 30 to 40 minutes before returning

again. Shari and Alvarez had an argument after Shari told

Alvarez he needed to help pay the bills and Alvarez replied that

he was not going to pay anything. Alvarez told Shari that she

should give Brian Ransom an ultimatum to either pay child

support or not see Tyler.

Shari’s father called and they talked for about 30 minutes.

While talking on the phone, Shari watched Alvarez go into the

living room and pick Tyler up. Tyler had not been crying but

started to when Alvarez picked him up. Alvarez carried Tyler

out of sight toward the area of the bedroom, while Tyler cried.

Shari saw Alvarez walk back and forth to the bedroom two

or three times. Tyler was crying the whole time. Tyler’s cries

grew louder and “more painful sounding” when Alvarez went

back into the bedroom for the second or third time. Shari had

not heard this type of cry before.

Shari told her father that Tyler had stopped crying and

said that maybe Tyler had fallen to sleep. Within seconds,

Alvarez called out her name. Shari responded, “What?” She did

not hear anything for several seconds and then told her father

to hold. Just as Shari got to the bedroom door, Alvarez started

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yelling, “Call 9-1-1.” Shari ran back to the phone and called 9-

1-1.

Shari told the operator that something was wrong with

her baby. The operator started asking her questions about the

baby, and Shari told her to hold so that she could go back to the

bedroom to see the baby. Shari saw Tyler unconscious on the

bed with Alvarez trying to perform CPR on him. Alvarez pushed

down on his chest “real hard” and hit him on the chest with his

fist. Shari turned on the light and saw that Tyler’s lips were

“bluish-purple.”

Shari returned to the phone and told the operator that

Tyler looked “kind of blue.” The operator told her to tell Alvarez

how to perform CPR and said to push on the chest only with the

fingers. Shari relayed the CPR instructions to Alvarez, but he

did not follow them and continued to pound on Tyler’s chest with

his fist. Shari was shocked and told Alvarez to stop, but he did

not. The operator told Shari to move Tyler to a hard surface and

Alvarez moved Tyler to the dining room table. The operator said

to wipe Tyler’s mouth and to stick a finger in his mouth in case

he was choking. Alvarez followed that instruction, but

otherwise kept “doing the same thing he was doing before.”

Shari was yelling at him to stop and asked him to let her

perform CPR, but he did not. Alvarez stopped when paramedics

arrived.

Alvarez and Shari got into the truck to go to the hospital

and Alvarez started driving off before the paramedics left. Shari

asked Alvarez what he was doing because she wanted to wait

for the ambulance. Shari told Alvarez that they had to go back

to the house. After a couple seconds, Alvarez finally turned

around and went back to wait for the ambulance.

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When they got to the hospital, Shari spoke to police

officers who told her that Tyler had a broken leg. Shari did not

know at that point in time whether Alvarez had done anything

to injure Tyler. She testified that she never shook Tyler

violently, that she never harmed him in any way, and that she

did not break his leg.

On the drive home from the hospital on the day after,

Alvarez acted very nervous, asked Shari if she was wearing a

wire, and felt her body to check for one. Alvarez told Shari “if

Tyler didn’t get better, that we needed to get the fuck out of

Dodge.” Alvarez told Shari that they had to have the same story.

Alvarez asked Shari to lie to the police and say that “Tyler

wasn’t on the bed, he was on the floor, stuff like that.” Alvarez

told Shari to lie about the CPR to the police and tell them that

he had not touched Tyler. Shari told Alvarez that she had told

officers the truth.

b. Albert and Elaine T.’s testimony

Brian Ransom had custody of Tyler on Halloween

weekend, the first weekend after he moved out. Brian took Tyler

to see Shari’s father and stepmother, Albert and Elaine T.

Elaine and Albert held and played with Tyler, and Tyler did not

grimace. Tyler had a cold, but smiled and nothing was unusual

about him.

Elaine testified that she saw Tyler again on November 5,

1994. Tyler appeared normal but had a cold. Because Tyler

always seemed to have a cold, Elaine did not pay much attention

to it. On November 12, 1994, Elaine saw Tyler after Shari asked

her to drive Tyler to the doctor. Elaine immediately noticed

something was wrong with Tyler. His nose had dried blood, and

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he whimpered when touched. Elaine drove Tyler and Shari to

the hospital.

Albert testified that he fixed Alvarez’s truck on November

14, 1994. Albert saw Tyler in his crib in the front room. Tyler’s

breathing was labored, and he did not look right.

On November 15, 1994, Albert called Shari at about 3:30

p.m. Shari seemed calm and concerned about Tyler. Albert

could hear Tyler crying loudly in the background and then it

grew fainter and then it stopped. Three to four minutes after he

last heard Tyler crying, Albert heard Alvarez yell, “Quick, call

9-1-1, Tyler quit breathing.”

c. First responder’s testimony

On November 15, 1994, at 4:40 p.m., a paramedic and a

fire department engineer responded to a call involving a

respiratory arrest of a five-month-old baby. They arrived within

two minutes and knocked on the front door, identifying

themselves as the fire department. Shari answered the door.

The paramedic walked in and saw Tyler lying on his back

on the dining room table. Alvarez was seated next to Tyler.

Alvarez was not performing CPR and looked “somewhat calm.”

As the paramedic approached, Alvarez got up and walked into

the kitchen area with Shari. Tyler was unconscious and

nonresponsive. The paramedic assessed Tyler’s airway as open

and put an oral airway in to ventilate him. Tyler’s coloring was

beginning to turn blue from lack of oxygen.

The ambulance transported Tyler to Kern Medical Center.

The paramedic noticed Tyler’s right leg was snapped in two with

the tibia and fibula broken. The paramedic did not see any

bruising on Tyler’s leg. The paramedic wrote notes regarding

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the case within 30 minutes of returning from the call. He

thought Tyler’s case as “odd” and “didn’t seem quite right.” He

wrote that Tyler’s right leg had severe swelling and deformity.

The paramedic wrote in his notes that Shari and Alvarez showed

no emotion. He believed that he saw some tears on Shari’s face,

but never any on Alvarez’s.

d. Dr. Loren Leidheiser’s testimony

Dr. Loren Leidheiser examined Tyler on November 12,

1994, when Tyler arrived at the emergency room with

complaints of congestion and a cough, and again on November

15, 1994, when he arrived with his ultimately fatal injuries. On

November 12, 1994, Dr. Leidheiser documented ecchymosis,

which was a purplish discoloration of the skin, on the top part

of Tyler’s ear and on his wrist. The ecchymosis was consistent

with a trauma bruise, but at the time Dr. Leidheiser was not

able to diagnose the cause.

When Dr. Leidheiser looked at Tyler’s chest X-ray on

November 12, he was concerned with some shadows that were

consistent with a lung infection. He wrote on Tyler’s chart that

he thought it might be an early sign of pneumonia. A radiologist

who also looked at the X-ray agreed with Dr. Leidheiser’s

opinion that it was not full blown pneumonia.

However, at trial, Dr. Leidheiser testified that he

overlooked that Tyler’s X-ray also showed a small fracture to his

rib. He said that he overlooked it because he was looking for an

infection based on the symptoms. In retrospect, Dr. Leidheiser

thought it was reasonable to conclude that Tyler was having

respiratory problems due to some fractured ribs. Dr. Leidheiser

opined that the rib fracture he had missed in the X-ray and the

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ecchymosis on the wrist and ear were consistent with child

abuse bruise trauma.

Three days later, on November 15, 1994, Dr. Leidheiser

was again working in the emergency room when Tyler again

arrived in critical condition. Dr. Leidheiser intubated Tyler, put

him on a ventilator, and administered medicine through an IV.

Tyler did not have neurological reflexes. Tyler’s eyes exhibited

retinal hemorrhages, bleeding spots in the back of the eye. Such

bleeding is directly related to the baby being shaken back and

forth.

Dr. Leidheiser noted that Tyler’s skin was discolored on

his right temple and ear and on his wrist. Tyler’s right leg had

an abnormal deformity in the tibia. The right leg was unstable

in a way that was “overwhelmingly suggestive of a fracture.” Dr.

Leidheiser thought the injury was fresh and was consistent with

it having occurred immediately before Tyler arrived at the

hospital. Based on Tyler’s leg fractures, Dr. Leidheiser opined

that it was a child abuse injury.

Dr. Leidheiser interviewed Alvarez and Shari, together

and separately. During her interview, Shari did not talk much

and focused on Tyler’s condition. She seemed stunned and very

upset. Alvarez, on the other hand, seemed anxious and

inquisitive and did not appear overcome with grief. Alvarez said

that he did not know what was wrong with Tyler and repeatedly

kept asking if the doctors had figured it out yet.

e. Dr. Aiylam and Dr. Bogost’s testimony

On November 16, 1994, Dr. Parameswaran Aiylam and

Dr. Gregg Bogost evaluated Tyler’s condition. Tyler was on a

respirator and nonresponsive to any painful stimuli. Dr. Aiylam

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and Dr. Bogost both concluded that Tyler had suffered total and

irreversible cessation of brain function.

Dr. Aiylam talked to Tyler’s parents and told them

nothing more could be done for Tyler and recommended that

they turn off the respirator. Shari and Brian agreed. On

November 16, 1994, Dr. Aiylam turned off Tyler’s respirator at

3 p.m. and he was pronounced dead ten minutes later. Dr.

Aiylam diagnosed Tyler’s cause of death as brain edema. Dr.

Aiylam’s discharge diagnosis included child abuse, multiple rib

fractures, right tibia and fibula fractures, liver hematoma,

bilateral hemothorax subdural hemorrhages, and increased

intracranial pressure.

Dr. Bogost opined Tyler suffered from diffuse axonal

injury, which is an injury to the brain. Tyler was neurologically

impaired from the moment the injury occurred. Dr. Bogost

examined Tyler’s leg X-rays which showed his right tibia and

fibula each had a nondisplaced fracture. Tyler’s fibula suffered

a buckle fracture. Dr. Bogost opined, based on the X-rays, that

Tyler’s leg fractures occurred sometime between ten minutes

and possibly two or three days before the X-ray. The fractures

could have occurred from someone grabbing the knee and ankle

and then twisting the leg, or from a fall or a drop from a

significant height.

f. Shari’s police interviews

Two detectives interviewed Shari on November 15, 1994,

and again, after Tyler died, on November 16, 1994. The

interviews were tape-recorded and one of the detectives testified

about them. The two detectives asked repetitive questions to

see if Shari would change her story. Her responses were

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consistent except on whether Alvarez told her he was taking

Tyler to the back room or if she asked him to take him.

Shari said that the last time Brian had custody of Tyler

was the weekend of November 4 to 6, 1994. When Tyler came

back, he had bruises on his wrist, fingers, and both ears. Shari

thought the bruises were about one day old. She told detectives

that Tyler had more bruises on his back that were not there

when she got him back from Brian. Shari did not think Brian

caused the bruises. She initially did not think Alvarez had hurt

Tyler and thought that perhaps it was an accident. Shari said

Alvarez was a “nice guy” and treated Tyler “good” in her

presence.

A detective pointed out that Tyler’s bruising began when

Alvarez moved in. Shari said that Tyler bruised “really easily.”

Shari thought the fingerprint bruises on Tyler’s back were

probably from her picking him up, and not Alvarez.

Shari asked if Tyler had injuries to his ribs and the

detective told her Tyler had “lots of injuries.” Shari said Tyler

had a sore chest and sore ribs since he got sick about week after

Halloween. Shari noticed Tyler was unusually cranky for the

past week, but thought it was from teething. The detective

asked Shari how long Tyler had been cranky when Alvarez was

around him, and she said, “[a]ll the time.” She clarified Tyler

was not cranky around Alvarez at first, but just when he got

sick. Shari described how Alvarez performed CPR. She said

Alvarez pinched Tyler’s nose and breathed into his mouth.

Shari said Alvarez was pushing hard on Tyler’s chest and

slapping it. Shari told Alvarez to listen to her CPR instructions,

but he would not listen and kept pushing on Tyler’s chest.

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Shari said she had not seen anything wrong with Tyler’s

leg. The first time Shari heard that there was something wrong

with Tyler’s leg was from a police officer at the hospital.

During the second interview, Shari said that she saw how

swollen Tyler’s leg was at the hospital and it was not like that

when she changed his diaper. She said that on the day before,

Brian was with Tyler in the intensive care unit and she could

tell that Brian had not caused Tyler’s fatal injuries, that she

knew she did not do it, and that left only one person.

Shari told the detective about the prior incident in which

Alvarez had told her that he had awakened in the night to find

that Tyler was not breathing and had resuscitated him with

CPR. She also told the detective about the conversation she had

with Alvarez the night before when they got home from the

hospital, and that Alvarez had asked her to lie to the police.

g. Dr. Armand Dollinger’s testimony

On November 18, 1994, Dr. Armand Dollinger performed

an autopsy on Tyler. He found no evidence, other than the

pneumonia directly related to the chest wall trauma, that Tyler

suffered from any disease that attributed to his death. Tyler

had swelling on his right leg around an apparent fracture. Dr.

Dollinger thought it was “certainly possible” that Tyler’s leg

injury occurred immediately before coming to the hospital,

approximately 22 hours before the autopsy. Tyler’s right shin,

tibia, and fibula also had bruising.

An internal examination of Tyler’s chest revealed 19

fractures to his left side, and 21 fractures to his right side. Dr.

Dollinger found the rib fractures occurred in three different time

periods. Two rib fractures near the spine were fresh fractures

with new hemorrhages. Other fractures were several days old,

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showing yellow discoloration indicating that they were 72 hours

or older. Numerous fractures were also healing fractures with

thickened callus formation, which demonstrates a variable age

differential, but were possibly seven to ten days old.

Tyler’s scalp had a contusion on the left side that Dr.

Dollinger opined was caused by a hard object. An internal head

examination revealed a bruise on the scalp and multiple

hemorrhages. Tyler’s brain was swollen and generally softened,

commonly seen in brain death when the brain is severely

damaged. Tyler’s left eyelid also had a small area of ecchymosis.

Tyler also had a retinal hemorrhage.

In 1994, Dr. Dollinger concluded Tyler’s cause of death as

traumatic encephalomalacia due to subdural hemorrhage due to

blunt-force trauma consistent with shaking. In 2000, Dr.

Dollinger testified that in retrospect, instead of stating that the

brain injury was due to a subdural hemorrhage, he would

conclude that the brain injury and subdural hemorrhage were

due to blunt-force trauma consistent with shaking. Dr.

Dollinger opined that Shaken Impact Syndrome, as opposed to

Shaken Baby Syndrome, is more applicable to Tyler because he

had a contusion on his scalp along with a hemorrhage.

h. Dr. Frank Sheridan’s testimony

Dr. Frank Sheridan was board certified in neuropathology

and forensic pathology and had performed over 3,000 autopsies,

but was not present at Tyler’s autopsy. Dr. Sheridan explained

that Shaken Baby Syndrome is the collection of particular

injuries in the head area that are indicative of the child having

been shaken violently. Dr. Sheridan opined that Tyler died as a

result of shaking with an impact as well. Dr. Sheridan pointed

to impact injuries to Tyler’s left side of his scalp as well as a

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subdural hemorrhage, subarachnoid hemorrhage, swollen

brain, hemorrhage around the optic nerves, and retinal

hemorrhage. These injuries were all clearly fresh. Microscopic

slides of Tyler’s brain showed no old injuries. However, a

skeletal slide, which appeared to be from a muscular area under

the skin, indicated an injury at least a few days prior to death,

along with a new injury. Some injuries to Tyler’s ribs were more

than a few days old also. One rib had previously been fractured

and then fractured again later.

i. Dr. Phillip Walker’s testimony

Dr. Phillip Walker was a physical anthropologist. He

specialized in researching traumatic injuries in cases of

homicide, especially skeletal injuries associated with child

abuse, and interpreting the physical evidence from the skeleton

to reconstruct what happened in the past.

Dr. Walker was consulted in 1997 to study Tyler’s bones

to try to determine how long before death the rib and leg

fractures occurred. Dr. Walker grouped Tyler’s ribs into four

categories: (1) recent fractures with minimal healing; (2) older

fractures with gross healing; (3) ribs with new bone forming but

without a fracture; and (4) two greenstick fractures, which do

not go all the way through the bone, with signs of healing.3 Dr.

Walker opined that Tyler’s rib fractures were typical of child

abuse cases where someone grabs and compresses the child’s

chest and then shakes. Tyler’s rib fractures were classic rib

fractures from squeezing and/or shaking abusive injury. Dr.

3

Dr. Walker observed a few rib fractures in areas where Dr.

Dollinger did not, and similarly Dr. Dollinger observed a few rib

fractures in areas where Dr. Walker did not.

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Walker opined that the recent rib fractures had occurred within

a few days of death. Dr. Walker determined that Tyler’s tibia

fracture was an angular fracture that went through the bone

and is commonly found in child abuse cases. The fibula had a

greenstick fracture that did not go all the way through the bone.

Dr. Walker found no evidence of healing in the tibia or fibula.

He concluded that the tibia and fibula fractures occurred

immediately before Tyler entered the hospital.

j. Dr. Donald Cornforth’s testimony

Dr. Donald Cornforth was a diagnostic radiologist who

studied X-rays. Dr. Cornforth compared the X-rays from August

10 and September 28, 1994, and opined that the ribs, spine, and

bone structures were all normal in both X-rays. Dr. Cornforth

found no fractures or injuries on those X-rays. The diagnosis

was a lower respiratory tract infection.

In the X-ray from November 12, 1994, Dr. Cornforth

noticed a new rib fracture, but no healing callus from any earlier

injury. If there had been a fracture on September 28, 1994,

there would have been sufficient time on November 12 for an

“excellent callus and [it] would make it very easy to see a rib

fracture if it had happened in September.” Dr. Cornforth opined

that the X-ray from November 12 showed no prior, old rib

injuries. The only rib fracture Dr. Cornforth noticed on the

November 12, 1994 X-ray was displaced and not very obvious,

but he testified that you can overlook or not see fractures if they

occurred within the last day or two. In sum, in reviewing the X-

rays from August 10, September 28, and November 12, 1994, Dr.

Cornforth did not identify any rib fractures as occurring before

the date that Alvarez moved in with Shari, but did identify one

rib fracture from after that date on the November 12 X-ray.

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k. Dr. Kevin Rice’s testimony

Dr. Kevin Rice was a board-certified radiologist. After

reviewing Tyler’s X-rays and medical chart, Dr. Rice concluded

that this was a child abuse case. Dr. Rice had separate bone

X-rays taken after Tyler died. The postmortem X-ray of Tyler’s

right leg showed a fracture in the tibia and another in the fibula.

The fractures were consistent with child abuse. Typically, such

fractures would be caused by a direct blow or less likely by

twisting. The leg fractures were less than 10 to 14 days old.

Tyler also had multiple rib fractures. The type of rib fractures

that Tyler had is typically caused by an adult squeezing the

baby’s chest. Dr. Rice opined that the rib fractures were recent

and less than eight weeks old.

Dr. Rice also examined a CT scan of Tyler’s brain and

abdomen. The CT scan revealed that Tyler had fluid around the

lung and right ribs as well as an abnormality of the liver due to

an injury. The liver injury could have occurred from blunt force

trauma. The CT scan also showed Tyler had two subdural

hematomas in the back part of his head.

l. Dr. Ronald Cohen’s testimony

In 1998, Dr. Ronald Cohen, a pediatric radiologist,

reviewed Tyler’s X-rays and medical records. Dr. Cohen opined

that the X-ray from November 12, 1994, showed swelling or fluid

along Tyler’s right chest wall along with several rib fractures.

The November 15, 1994, X-ray showed evidence of healing

or callus formation in some rib fractures on the lateral side.

Callus formation is first seen at seven to ten days after an

injury. The healing was more evident on November 15, 1994,

than on November 12, 1994, consistent with an injury occurring

approximately 10 to 14 days earlier. However, there was

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indication of several rib fractures in different states of healing,

indicating injuries from different occasions. In Dr. Cohen’s

opinion, Tyler’s rib fractures were consistent with child abuse

squeezing. Tyler’s rib fractures do not occur with CPR, whether

it is performed properly or improperly.

A November 16, 1994, X-ray indicated Tyler’s right tibia

and fibula were fractured in a way seen in child abuse cases and

that can be caused by bending or twisting. The leg fractures had

no sign of new bone or callus formation, which in Dr. Cohen’s

view would make them recent injuries, less than seven to 14

days and consistent with having occurred 22 hours before Tyler

died. Tyler’s right leg fractures would generally occur as an

inflicted injuries and were unlikely to be caused by falling. Tyler

could not have caused his leg fractures himself. Dr. Cohen

opined that the leg fractures were due to a violent inflicted

injury.

m. Jeff M.’s testimony

Jeff M. had known Alvarez for approximately ten years

and testified that on the night before Tyler’s death, Alvarez told

him that Tyler “just cries all the time. It just kind of gets to me

after a while.”

n. Child protective services proceedings

A social worker for child protective services (CPS) testified

that on April 5, 2000, about six years after Tyler’s death, she

responded to a call that Shari was using drugs in her home and

neglecting her then four-year-old daughter, Taylor. The social

worker told Shari the condition of the home was unacceptable

and asked her to clean it up. The social worker asked Shari for

a drug test and Shari took one the following day. The social

worker returned to the house on April 7, 2000, and found the

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house to be clean. The social worker had no concern about

physical abuse by Shari. The social worker observed the

relationship was a normal mother-daughter relationship and

that they had a good bond.

On April 13, 2000, Shari’s preliminary drug test came

back positive for marijuana and amphetamines. The social

worker returned with a police officer who arrested Shari for

being under the influence (Health & Saf. Code, § 11550) and

misdemeanor child endangerment (id., § 273a, subd. (b)).4 The

house was dirty again. The social worker took Taylor into her

custody on that day because of Shari’s positive drug test, the

condition of the home, and because she was concerned that

within two weeks two different men were staying in the home.

During this visit, Taylor picked up a small object resembling an

ice pick and threatened to stab a CPS worker. Shari told the

social worker that she was clean and had not used drugs.

Another CPS worker testified there were pending

allegations against Shari for her drug use and filthy house on

April 13, 2000, and for a failure to protect Taylor from potential

sexual abuse by Shari’s brother. Shari had been molested by

her brother 16 years earlier and the same brother was living

with her and Taylor. CPS, however, found insufficient evidence

to show that Shari purposefully inflicted physical abuse on

Taylor.

Shari testified that she had a pending dependency hearing

and needed to show that she was a fit parent so she could be

reunified with Taylor. She admitted to using

4

When Shari’s subsequent urine test came back negative,

she was only charged with child endangerment based on the

dirty house.

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methamphetamine on one occasion and smoking marijuana for

a couple weeks while pregnant and admitted that she had lied

about using drugs.

o. Dr. Dean Haddock’s testimony

Dr. Dean Haddock was a licensed clinical psychologist. As

explained further in part II.D below, Dr. Haddock testified in

rebuttal that he administered the Child Abuse Potential

Inventory test to Shari in 1998 and that his opinion was that

Shari “was not at risk to physically abuse children in her care.”

2. Defense Witnesses for Tyler Ransom’s Murder

a. Alvarez’s testimony

Alvarez denied killing Tyler. He testified that on

November 15, 1994, he left the house at 8:10 a.m. for a physical

therapy appointment and returned around 1:30 p.m. Alvarez

testified that he heard Tyler crying when he returned. Shari

was changing Tyler’s diaper on the couch. Alvarez kissed Tyler

and Shari finished changing his diaper. After Alvarez changed

his clothes, he and Shari went into the kitchen to discuss bills

that Shari wanted Alvarez to pay. Alvarez claimed that he did

not get upset, but rather Shari got upset and angry with Brian.

Alvarez testified that he went outside and spent an hour

with a neighbor. Alvarez said he came back inside, and Tyler

was crying in the crib in the living room while Shari was in the

kitchen. Shari’s father called. Alvarez carried Tyler into the

master bedroom, as Shari had asked, while she talked on the

phone. Tyler continued to cry after Alvarez carried him to the

master bedroom. Alvarez claimed he did not notice any bruises

or injuries on Tyler, but that he would not have because he was

in a full jumpsuit. Alvarez placed Tyler in the middle of the bed

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with pillows on both sides to protect him from falling. Alvarez

testified that he was in the room with Tyler for a minute and a

half at most and that he did not do anything to injure him.

Alvarez denied shaking him and claimed that he did not drop

him.

Alvarez testified that he returned to the kitchen table and

sat next to Shari. He could still hear Tyler crying. Alvarez

claimed that when Tyler stopped crying about two or three, or

possibly as long as 10 to 15 minutes later, he went back to check

on Tyler because he thought Tyler might have fallen off the bed.

Alvarez testified he went into the bedroom, and saw that Tyler

was not breathing and he immediately told Shari to call 9-1-1.

Alvarez claimed that he picked Tyler up and carried him down

the hall. When he was walking down the hallway, Shari was

already on the phone with 9-1-1. Shari was relaying to him what

the 9-1-1 operator was saying. He claimed he pressed “a little”

on Tyler’s chest and never hit Tyler’s chest. Alvarez claimed

Shari’s testimony that he pushed on Tyler’s chest after bringing

him into the kitchen was inaccurate. Alvarez testified that he

followed the 9-1-1 operator’s instructions for CPR that Shari

was relaying to him. Alvarez testified that when the paramedics

arrived, he was standing over Tyler trying to get him to breathe.

Alvarez testified that when he and Shari got in the truck,

he drove off because he wanted to beat all the red lights, and he

knew where the emergency personnel were going. Late that

night, Alvarez and Shari left the hospital together. Alvarez

denied that he told Shari that they needed to “get out of here,

let’s get the — out of Dodge.” Alvarez testified that he told

officers he would not torture a baby because the baby was sick.

Alvarez thought Brian Ransom might have been involved in

Tyler’s death because he was with Tyler the night before.

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b. Shari’s family’s testimony

Brian Ransom’s sister testified that between January and

April of 2000, she twice noticed injuries on Shari’s daughter

Taylor. Taylor had a faint, black bruise in the corner of one eye.

Taylor initially said that nothing had happened, but then, after

Brian’s sister asked her what had happened to her eye, she said

that her mother had gotten mad at her and hit her. Another

time, Taylor had bruises on her stomach and on a leg. Taylor

said she fell on her bedpost causing the bruise on her stomach.

Brian’s sister testified that she had no physical proof that Shari

was abusing Taylor but had “notions of it.”

Brian Ransom’s fiancé testified that in January 2000, she

saw a mark and bruise on the corner of Taylor’s eye. She asked

Taylor what had happened and Taylor in tears said, “I ran out

in the rain and my mama hit me.”

c. Shari’s neighbors

A neighbor lived across from Shari Ransom in 2000. The

neighbor testified that Shari constantly berated her daughter.

He saw Shari, her brother, and her brother’s girlfriend holding

Taylor down by the shoulders “probably” more than five times

and believed that they took pleasure in it. While laughing, they

would yell at her to make her scream for hours. The neighbor

testified that Taylor cried all the time and Shari would call her

stupid.

Another neighbor testified that she heard Shari be

verbally abusive and scream at Taylor every day, calling her

names like “stupid.” The neighbor never saw Shari hit Taylor,

but one time she saw Shari throw a shoe at her because she

came out of her room.

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An investigator testified that a third neighbor confirmed

to him, after initially denying it, that he saw Shari hit Taylor

with an open hand on the back, front, and side of the head,

sometimes knocking the child off her feet. The neighbor also

told the investigator that Shari was always yelling at the child

and that he had seen Shari spank her after removing her

clothing.

3. Prosecution Witnesses for Dylan Vincent’s

Murder

a. Diane Borgsdorf’s testimony

Dylan Ross Vincent was born on September 19, 1992, to

Diane Borgsdorf. Dylan fell often, incurring numerous bruises.

In July of 1996, Borgsdorf and Alvarez began a romantic

relationship. Alvarez stayed over “all the time” at Borgsdorf’s

apartment. In August of 1996, Borgsdorf and Dylan moved into

a new apartment with Alvarez. After they moved in together,

Borgsdorf saw bruises on Dylan more frequently. On occasion,

Alvarez told Borgsdorf to keep Dylan home from preschool. On

one occasion, he told Borgsdorf to keep Dylan out of preschool

because he did not want the teachers to see bruises on him after

Dylan scraped his face. On another occasion, Borgsdorf saw red

finger imprints on Dylan’s neck from Alvarez holding his neck

as he escorted him to his mother. Borgsdorf noticed that Dylan

was afraid of Alvarez at times, mostly when she argued with

Alvarez.

On October 22, 1996, Borgsdorf returned home from work

and followed Dylan into his room to get him undressed. Alvarez

became furious and “just started screaming and yelling and

arguing with me.” She told Alvarez to get out and get away from

her. Afterwards, Alvarez calmed down and said they had to get

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ready because Jeff M. and his girlfriend Teresa H. were coming

over. Around 7:30 p.m., Jeff and Teresa came over for dinner.

Borgsdorf put Dylan to bed at 9 p.m. after changing him.

She did not notice any bruises. Borgsdorf asked Alvarez if on

the next day he would take Dylan with him to the store and buy

Dylan new pants. Alvarez said he would take Dylan because he

was meeting his dad anyway and that he would drop Dylan off

at school at 1 p.m. Borgsdorf was running late for work and

Dylan and Alvarez were both still in bed when she got up around

6:30 a.m. She arrived at work at 8 a.m.

During that day, Borgsdorf wrote a letter to her niece

describing Dylan as a battered child and that he had “so many

bruises.” Borgsdorf testified she never received a message from

Alvarez, telling her to come home at lunch and watch Dylan.5

Borgsdorf called home at 12:50 p.m. to see if Alvarez had

dropped Dylan off at school, but no one answered. She clocked

back into work at 12:56 p.m. At roughly 2 p.m., Borgsdorf

received a panicked call from Alvarez, telling her it was

emergency and to get home. Borgsdorf’s coworker drove her

home, taking approximately 15 to 20 minutes.

When Borgsdorf arrived home, Alvarez was in the living

room and told her to call 9-1-1. When Borgsdorf went to the

phone, the 9-1-1 operator was already on speakerphone. As

Borgsdorf began talking to the 9-1-1 operator, Alvarez was

calling out what was wrong and that Dylan “wasn’t breathing,

was breathing.” Borgsdorf explained this to the operator.

Alvarez was panicked and running back and forth. The operator

5

Conversely, Alvarez testified that he left such a message

for Borgsdorf.

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told Borgsdorf to bring Dylan near the telephone and put him

on the floor. Borgsdorf asked Alvarez to bring Dylan into the

living room, but he refused. When Borgsdorf began to hear the

sirens, Alvarez said Dylan was “breathing, but barely

breathing.”

A police officer arrived shortly thereafter and Borgsdorf

followed him into Dylan’s room. Alvarez did not let Borgsdorf

go into the bedroom before the officer arrived. Borgsdorf noticed

Dylan was covered in bruises, which she had not seen the night

before when she got him ready for bed. Borgsdorf asked Alvarez

how Dylan got so many bruises. Alvarez pulled her out of the

room and told her that she had to say she put them there or he

would go back to jail. He then told her that “he was playing with

him all day, he had been throwing him in the air or something,

and that Dylan had bumped into him.” Borgsdorf had never

seen Alvarez play with Dylan that way before. At some point,

Alvarez was rambling on about how Dylan bruised easily.6

b. First responder’s testimony

On October 23, 1996, at about 2:10 p.m., a police officer

was dispatched to Borgsdorf’s home and arrived one to two

minutes later. When he got there, he walked into the bedroom

where he saw Alvarez, Borgsdorf, and Dylan lying on the bed.

Dylan was naked, his skin was “slightly bluish,” he “had bruises

from his neck to his hips,” he had a large bruise on his forehead,

and he was not moving. The officer touched Dylan and felt that

he was cool to the touch and that he was not breathing. The

6

As part of a plea agreement, Borgsdorf pled guilty to five

counts of child endangerment for failing to protect Dylan and

was sentenced to 14 years in prison. She was promised nothing

in return for testifying.

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officer asked if anyone attempted CPR. Alvarez said that he did

not know how. The officer checked Dylan for a pulse, found

none, and started CPR. While performing CPR, the officer

noticed a small amount of blood dripping from Dylan’s penis.

Alvarez was saying that, “Dylan bruises easily.”

The officer noticed that Alvarez appeared “nervous, was

pacing back and forth, speaking in an accelerated manner.”

Alvarez was again saying that “Dylan bruises easily,” and

“walks into walls and falls down a lot.” The officer asked Alvarez

what happened. Alvarez said that “he and Dylan had been

playing earlier in the day and that if Dylan would have received

any injuries, that he would have noticed it.” He said that later

on Dylan had called out to him “Daddy, I need to go to the

bathroom.” He said he then walked into the bedroom and found

Dylan barely breathing.

A police sergeant arrived at the apartment at

approximately 2:27 p.m. just as an ambulance carrying Dylan

was leaving. The sergeant saw Alvarez in front of the residence

and heard him stating out loud that Dylan had been sick for a

long time, that he bruises easily and everybody knows that, and

that he often gets dizzy and falls into the wall. Alvarez also said

that Borgsdorf sometimes “tells me not to play with him too

hard. I don’t mean to bruise him. Maybe I’m too rough

sometimes, but I don’t mean to be.” Alvarez said that Dylan had

been sick all day. Alvarez said he heard Dylan call for him

saying that he had to go to the bathroom. Alvarez said he went

to assist Dylan because Dylan had been dizzy and could not

stand on his own. Alvarez said he helped Dylan into the

bathroom, but then Alvarez felt something fall on his own foot

and saw blood dripping from Dylan’s penis. Alvarez claimed he

said, “Oh, my God,” and then Dylan fell unconscious. Alvarez

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said he called Borgsdorf at work and then called emergency

help. The sergeant noted he did not see any blood on the sandals

Alvarez was wearing. Borgsdorf went back into the apartment

to use the restroom. The sergeant followed her inside and told

her to come out immediately. When he looked in the bathroom

after she left, he noticed a bloody towel on the countertop that

he did not remember from the first time he looked into the

bathroom.7

c. Dr. Peter Ellis’s testimony

On October 23, 1996, at about 2:30 p.m., Dr. Peter Ellis

treated Dylan in the emergency room at Mercy Hospital. Dylan

was in full arrest, had no vital signs, and showed no evidence of

life. Dr. Ellis “did just about everything humanly possible to

restart his heart.” Dr. Ellis pronounced Dylan dead at 3:17 p.m.

However, Dr. Ellis believed that Dylan was “essentially dead on

presentation.” Dylan was in a moribund condition, and it was

possible that he was “down” for several hours. Dr. Ellis’ stated

that Dylan may have been injured and hurt for a long period of

time. Dr. Ellis believed that Dylan had sustained a significant

injury to his abdomen causing distention. The trauma to

Dylan’s abdominal cavity possibly may have caused him to have

full arrest. Dylan had “many, many bruises over his body,”

including on his head, trunk, abdomen, buttocks, and back, and

his mouth appeared to have some bleeding as well. Dylan had

7

A criminalist confirmed that blood from the towel matched

Dylan and did not match Alvarez or Borgsdorf. Blood found on

bedroom linens also matched Dylan and did not match Alvarez

or Borgsdorf. Blood found on the bedroom wall and on a towel

in Alvarez’s truck was inconclusive as to whose it was.

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a mark on his midback that appeared to have been inflicted by

an implement.

d. Borgsdorf’s police interviews

After Dylan had died, on October 23, 1996, at

approximately 5:30 p.m., two detectives interviewed Borgsdorf

in a tape recorded interview at the police department building.

Borgsdorf told detectives that she never saw Alvarez hit her son,

but that Alvarez would hold him around the neck, causing

marks. Alvarez would also regularly go into Dylan’s room while

Borgsdorf was sleeping and occasionally she would wake up to

Dylan screaming or crying and find Alvarez in Dylan’s room.

When the detectives asked if Alvarez “was takin’ out . . . the

argument with you on your son,” Borgsdorf responded

“[m]aybe.”

Borgsdorf informed the detectives that Alvarez had told

her that he had been in jail twice. He told her he was arrested

for murdering a child. The detective asked, “He told you that he

had been arrested for murdering a child in the past and you

trusted him with your child?” Borgsdorf replied, “[t]hey had

proven that he didn’t do it.” Borgsdorf said she was scared to

confront Alvarez because of his temper. When confronted that

she knew Alvarez was abusing Dylan, Borgsdorf responded that

she did not know what to do and she was too scared, especially

since her fight with her brother. Borgsdorf said, “I don’t have a

doubt in my mind that [Alvarez] physically killed my son today,

killed my son.”

Borgsdorf said on the night before she had told Alvarez to

get out of her life. Alvarez pushed Borgsdorf down on Dylan’s

bed. She got up and pushed him back, Alvarez pushed her down

again, calling her stupid. Borgsdorf had nowhere to go and so

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she told Alvarez she was “stuck there.” Alvarez admitted being

jealous with Dylan because Borgsdorf gave him less attention

that Dylan got. The next morning, when Borgsdorf changed her

mind about Alvarez taking Dylan to go shopping that day,

Alvarez stopped her from taking Dylan to school. Alvarez

instead insisted that Borgsdorf not wake Dylan up as she was

leaving. He said he wanted to let Dylan sleep and that he would

wake him up later.

On October 24, 1996, another officer spoke to Borgsdorf to

obtain medical release forms for Dylan’s medical records. After

Borgsdorf asked him, the officer confirmed that Dylan was

“really dead.” Borgsdorf started crying and became very upset.

In reference to Alvarez, Borgsdorf said, “ ‘I want that mother

fucker dead.’ ” Borgsdorf told the officer that Alvarez had raped

her. She said that she was afraid of him and that he made her

feel like she was nothing.

e. Dr. Dollinger’s testimony

As described above, Dr. Dollinger conducted an autopsy on

Tyler Ransom. On October 24, 1996, Dr. Dollinger conducted an

autopsy on Dylan as well. Dylan bled to death due to transection

of the small intestine, the pancreas, and vascular structures due

to blunt-force trauma. Considerable force is necessary to cause

such injuries. Dr. Dollinger opined Dylan could have died

within a matter of minutes or could have survived up to three to

four hours, but no more than that. Dr. Dollinger believed the

blood coming from Dylan’s penis could have been due to a

retroperitoneal hemorrhage or possibly an injury to the kidneys

that was not grossly evident.

Dr. Dollinger counted approximately 70 to 75 bruises on

Dylan’s body. Dr. Dollinger estimated that Dylan likely

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sustained about 30 blows. Dr. Dollinger opined the bruises were

recent and occurred within two hours of his death.

f. Dr. Sheridan’s testimony

In addition to reviewing Tyler’s medical records, Dr.

Sheridan reviewed Dylan’s medical records in March 1998. Dr.

Sheridan opined that Dylan’s major lethal injury probably

occurred two to three hours, at most, before the 9-1-1 call at 2:15

p.m. He determined that the injuries could not have occurred

more than a couple hours before the 9-1-1 call.

Dr. Sheridan noted that the front of Dylan’s abdomen had

several bruises that were consistent with more than one hand

punch. Dylan also had a severe, fatal injury to his abdomen.

His pancreas was essentially cut in two. His small intestine was

also torn, resulting in a major internal hemorrhage. Dr.

Sheridan testified that he was “sure” the impact object was a

fist. It took “considerable force” to inflict these abdomen

injuries.

Dr. Sheridan pointed out injuries to Dylan’s face that were

consistent with an attempted smothering. Dr. Sheridan also

found that Dylan suffered numerous injuries to his head,

including a large, rectangular patterned bruise on his forehead,

which indicated an impact injury. Dr. Sheridan noted that

Dylan had numerous blunt force injuries and bruises to the back

of his torso, chest, abdomen, and particularly to his buttocks.

Dr. Sheridan concluded there were several discrete,

nonoverlapping injuries requiring separate impacts.

g. Monica Alvarez’s testimony

Monica Alvarez (Monica) is Alvarez’s sister. Monica first

met Dylan a little over a month before Dylan’s death.

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Throughout the time she knew him, he had bruises or injuries.

Monica recalled seeing injuries or bruises on Dylan three times.

One time Dylan had a scabbed nose and lip. Around September

30, 1996, Monica saw a bruise on Dylan’s forehead, and his

ankle was swollen and bruised. When Monica asked Dylan how

he got the injuries, he would “generally just repeat whatever you

ask him, like bruise or fell.” Monica then asked Dylan how

many times Alvarez had hit him, and Dylan responded, “four

times.” Dylan had “slow speech for a four-year-old” and did not

speak clearly, but Monica was able to understand him.

Borgsdorf told Monica that Dylan was being kept out of

preschool because of his bruises and injuries. Alvarez told

Monica that Dylan was being kept at home because “they didn’t

want to cause any suspicion at the preschool.”

On October 23, 1996, the day Dylan died, at approximately

12:20 p.m., Alvarez called Monica trying to get a hold of their

father Ben Alvarez (Ben). Alvarez said he had been at the mall

waiting for Ben for approximately 30 minutes. At Ben’s request,

Monica said that Ben had already left for the mall, even though

he was still at her house. However, during their phone

conversation, Alvarez heard Ben in the background. Alvarez

told Monica that he had something he needed to take care of and

that he would meet Ben at the mall.

h. Ben Alvarez’s testimony

Ben is Alvarez’s father. Ben testified that Dylan seemed

like a typical little boy, but was clumsy, tripped all over

sometimes, and was a little slow in his speech and difficult to

understand. One time, Ben noticed bruises on Dylan’s lip and

the side of his mouth, but not his cheeks. When Ben asked

Alvarez about the lip injury, Alvarez told him that Dylan tripped

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and hit a rug and that he was clumsy, accident-prone, and

bumps into things. When Ben asked Dylan how he got hurt,

Dylan “said ‘daddy,’ and once he said — he mumbled different

things. He was sort of incoherent. I couldn’t understand him.

He sort of flip-flopped, you know, from time to time as to what

happened to him, kind of like he wanted to please who it was

that was asking the questions half the time.” When Ben asked

Dylan who put that “big lip” on him, he told him it was Alvarez.

On October 23, 1996, Ben and Alvarez planned to meet at

the mall around 10:30 or 11:00 a.m. Ben arrived late at the mall

around 1 p.m. and Alvarez and Dylan were not there. Ben

stayed at the mall for between 25 and 35 minutes and did not

see Alvarez or Dylan.

i. Jeff M. and Theresa H.’s testimony

On October 22, 1996, the evening before Dylan died, long

time social acquaintance Jeff M. and his girlfriend Theresa H.

visited Borgsdorf and Alvarez for dinner. Theresa thought

Dylan acted “very scared” when Alvarez was in the room with

him. After Alvarez had left the room, Dylan showed Theresa his

neck and said he had an “owie” on his neck and then showed

them a bruise on the back of his elbow and on his leg. Jeff and

Theresa did not see anything on Dylan’s neck but saw bruises

on the other locations. After Alvarez returned, he put his hands

over the side of Dylan’s neck. Alvarez told Jeff that Dylan was

“always running around and falling and hitting himself.” After

dinner, Dylan gave Jeff, Theresa, and his mom a hug and kiss

on the cheek. Alvarez made Dylan give him a kiss too, but

Theresa thought Dylan “acted very scared” and “was pulling

back like he didn’t want to.”

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j. Borgsdorf’s family’s testimony

Borgsdorf’s brother and her brother’s wife testified that

Dylan had lived at their house before Borgsdorf moved in with

Alvarez and they never observed any abnormal bruises on Dylan

while living with him. Both believed that Dylan walked

normally and was not unusually accident-prone or clumsy.

k. Preschool teacher’s testimony

Dylan’s preschool teachers testified that Dylan’s

attendance was sporadic. The teachers would not characterize

Dylan as accident-prone. One of the teachers never noticed any

bruises on Dylan’s body. Another teacher observed occasional

bruises and bumps on Dylan’s forehead. During the week before

Dylan’s death, that same teacher noticed Dylan had a fading,

yellowish bruise on his chin. Alvarez told her that Dylan fell

getting out of the truck.

On October 18, 1996, Dylan twice went to the restroom at

preschool and each time when he came back, he pulled down his

pants and told a teacher that his penis hurt. The teacher did

not notice any bruises and pulled Dylan’s pants back up. The

teachers discussed the possibility that Dylan might have a

bladder infection.

4. Defense Witnesses for Dylan Vincent’s Murder

a. Alvarez’s testimony

Alvarez denied killing Dylan. Alvarez testified Dylan was

uncoordinated and that he would just fall to ground when he

turned his head. Alvarez said that Dylan would not catch

himself when he fell and would instead hit his forehead or chin.

Alvarez testified that on October 23, 1996, he stayed home

with Dylan after Dylan woke up with a fever. Alvarez called

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Borgsdorf’s office at 10 a.m. and left a message for her to come

home during the lunch hour. While Dylan was napping, Alvarez

left the apartment at 11:30 a.m. to go to the mall to meet his

father.

Alvarez testified he arrived at the mall around noon. At

12:29 p.m., Alvarez called his sister and learned that his father

had not yet left for the mall. Alvarez told his sister that he

would wait at the mall, but if he was not there when his father

arrived, to tell his father to wait for him to return. Alvarez

assumed Borgsdorf would be at the home and thought she would

be mad if he did not get back and pick her up before 1:00 p.m. to

take her back to work. Alvarez testified he waited until 1:30

p.m. before leaving the mall and that he arrived home close to 2

p.m.

Alvarez testified that when he arrived home, he went into

Dylan’s room and saw a large bruise on Dylan’s forehead.

Alvarez testified he pulled down Dylan’s blanket and saw more

bruises. Alvarez testified he repeatedly said, “What happened?

Where’s mommy?” but Dylan did not answer. Alvarez testified

he immediately called Borgsdorf at work and told her it was an

emergency and to come home.

Alvarez testified he went back into Dylan’s room and

Dylan said, “I need to go to the rest room, daddy, I need to go to

the restroom.” Alvarez walked him to the bathroom. Alvarez

saw blood in Dylan’s urine when Dylan was urinating into the

toilet. Alvarez said that Dylan fainted but Alvarez caught him.

Dylan then urinated blood on a towel on the bathroom floor.

Alvarez testified he carried Dylan back to his bed, called 9-1-1,

put the phone on intercom, and went back into Dylan’s room.

Alvarez testified Borgsdorf arrived, walked into Dylan’s room,

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and asked what happened. Alvarez denied that he prevented

Borgsdorf from entering Dylan’s bedroom.

Alvarez testified that he was in a panic and

“uncontrollable words” came out of his mouth when he said he

was home all day in the 9-1-1 recording.8 Alvarez testified it

was more important to him to protect himself from getting into

trouble than to tell the authorities what had happened. Alvarez

claimed he never told Borgsdorf to take the blame and that he

said to her “you better tell what happened — tell where these

bruises came from or I’m going back to jail.” Alvarez suspected

that Borgsdorf had been home during lunch and that he did not

know that she was not there.

Alvarez testified he believed Brian Ransom was

responsible for Dylan’s death and that he was unaware that

Brian was working on the day Dylan died. Alvarez alleged that

Brian had threatened him many times based upon Tyler’s death.

Alvarez admitted that on a few occasions he held himself

out as a correctional officer, wearing a uniform that he had

received from a friend.

b. Dr. Vincent Maddela’s testimony

On October 21, 1996, Dylan visited his pediatrician, Dr.

Vincent Maddela. Dr. Maddela noted Dylan had a low grade

fever and an upper respiratory infection. Dr. Maddela

8

In the recorded 9-1-1 call, Alvarez explains, “He’s been in

bed. I’ve been tending to him all day long. And then all of a

sudden he just, like — I gave him something to drink and then

after I gave him something to drink I went back out and he says

daddy, daddy. And I go walkin’ back in there and he says, uh —

he didn’t say nothin’. He didn’t really say nothin’. He just stood

there.”

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confirmed with Borgsdorf that Dylan was favoring his left side

when he walked and referred him to another physician to have

his vision checked. Borgsdorf did not tell Dr. Maddela that

Dylan had injured his foot in a car door and Dr. Maddela agreed

that, if a person’s foot was injured and it was painful, it is

possible that would cause them to favor one foot when walking.

Dr. Maddela testified he did not notice any unusual bruising and

did not suspect child abuse.

5. Impeachment Evidence

a. Michelle E.

On January 31, 1996, Michelle E. met Alvarez while she

was at the mall with her son. At the time, Michelle was 19 years

old, and her son was approximately one and a half years old. On

February 2, 1996, Alvarez went to Michelle’s home and then she

and her son went to Alvarez’s house. After her son fell asleep,

she and Alvarez had consensual intercourse. When Alvarez took

her home, he acted “really different,” “had a weird outlook,” and

“didn’t seem right.” Afterwards, Michelle felt bad because she

was married, and she knew she did “something wrong.”

On February 3, 1996, Alvarez called her, and she told him

she did not want to have a relationship with him. Alvarez

refused and was “fairly forceful” about having a relationship.

Alvarez called the house numerous times and said that he was

going to raise a big scene outside in the front yard. Alvarez then

showed up at her house. Alvarez told her that if she did not have

a relationship with him and go with him then, he would kill her

or her son. Alvarez said he would break her and her husband

up. Michelle was afraid Alvarez was going to kill her, her son,

or her husband. Alvarez proceeded to rape her in her house.

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Her son was running around the room while Alvarez raped her.

Alvarez said she is not her husband’s anymore, that she is his.

While crying, Michelle got into Alvarez’s truck and he then

drove to his house. Alvarez locked her and her son in in his

bedroom. Alvarez had her call the police and ask whether it was

okay for her to take her son without her husband’s permission.

Alvarez sat on the bed watching television while she and her son

sat on the floor crying. Alvarez became upset at her son crying

and twisted his earlobe until he started screaming. After her

son fell asleep on the floor, Alvarez raped her again.

On February 4, 1996, Michelle spoke to the Bakersfield

Police Department and reported that Alvarez had kidnapped

her and then raped her at his residence. At that time, she did

not tell officers that she knew Alvarez because she was ashamed

and afraid what her husband would think.

On February 5, 1996, nurse examiner Donna Hogan

performed a sexual assault exam on Michelle. Hogan testified

that Michelle told her that Alvarez had raped her. During the

exam, Hogan documented injuries and abrasions to Michelle’s

vagina, consistent with nonconsensual sexual intercourse.

Alvarez testified that his relationship with Michelle was

consensual.

b. Melinda A.

On January 23, 1996, Melinda A. met Alvarez while she

was walking on campus at Bakersfield College. Melinda was a

student there and had a two-and-a-half-year-old daughter.

Alvarez called out to her, told her she was a nice looking lady,

and said he would like to have dinner with her. Melinda

declined his dinner invitation, but Alvarez kept asking if she

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wanted to go out that night. She told Alvarez she had to leave.

Alvarez replied, “Go pick up [your] daughter” and then followed

her to her vehicle. Melinda had not told him that she had a

daughter and Alvarez pointed out what car was hers before she

reached it in the parking lot. She gave Alvarez her phone

number so that she could leave. Alvarez tried to kiss her, and

she turned away.

Alvarez called her later that day telling her that they were

going to dinner that night. She kept telling him “No.” Later

that day, as Melinda was driving to the post office, she noticed

a truck following her and flashing its headlights. As Melinda

was walking back to her truck from the post office, she saw

Alvarez walking toward her car and the same truck that had

been following her was parked behind it. After she again

declined to go to dinner, Alvarez grabbed her and pinned her

against her truck. Alvarez kissed her, licked her face, and

pressed his body against hers. She told Alvarez she wanted to

leave but he would not let her, kept telling her that they were

going to dinner, and began grabbing her breasts. She tried to

grab his hands away and said, “no.”

Melinda asked Alvarez what it meant to him when a

woman told him, “No.” Alvarez got “very angry” and his grip

grew stronger. Alvarez pinched her nipples with both hands.

Melinda managed to get free and jumped in her vehicle, locked

the door, and drove off.

Alvarez testified that Melinda came over to his house later

in the day after they met at Bakersfield College. He claimed

they kissed on his bed and he “could have went a little too far”

with his hands, but he did not attack her in any way. He denied

ever seeing her at the post office.

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B. Penalty Phase

1. Prosecution Evidence

Tyler’s paternal grandmother testified about her close,

loving relationship with Tyler. The grandmother explained that

when Tyler died, “the hurt, the loss, it was unbelievable.” The

hardest part was realizing she would not have Tyler anymore,

and she would not be able to see his first anything, first tooth,

first Christmas light, first bicycle, first kiss, or first car.

Borgsdorf’s sister-in-law testified about the importance of

Dylan to their family. It was awful for Dylan’s three cousins

after Dylan died. One cousin had nightmares for almost two

years and had to attend counseling. The hardest part for the

sister-in-law was looking back and thinking that she could have

prevented Dylan’s murder.

2. Defense Evidence

Ricardo is Alvarez’s older brother. His testimony from a

prior proceeding was read to the jury. That testimony detailed

his father Ben’s extensive abuse of Alvarez and his brothers

while growing up. Ben would beat all four of his boys every day

of the week. Ben would beat them with his fists, belts, or tools.

Ben beat Alvarez the most. Alvarez would also burn himself

with cigarettes and poke his fingers with needles. One time,

Alvarez saved Ricardo’s daughter when she was drowning in a

swimming pool. Ricardo testified that he loved Alvarez.

Bernardo is Alvarez’s oldest brother. He also testified to

his father’s extensive abuse. Their father punished the boys by

beating them with his hands, belts, sticks, and pool cues. Their

father began hitting Alvarez when he was around two or three

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years old, and he hit Alvarez the most. Bernardo testified that

he cared deeply for Alvarez.

Christina L. is Alvarez’s youngest sister. She testified

that her mother physically abused her by pinching, slapping,

pushing, and grabbing. She did not see her brothers be

physically abused, but “heard stories.” She recalled that one

time she heard Alvarez broke some ribs when he was badly

beaten.

Diana K. is Alvarez’s mother. Ben physically abused

Diana and twice broke her arm. Alvarez was around three or

four years old when Ben started to physically abuse him. Ben

beat Alvarez about once a month.

When in kindergarten, the school discovered that Alvarez

is aphasic, which is a form of autism. When Alvarez was in fifth

grade, Diana ran away with her three daughters, leaving

Alvarez behind. Diana testified that while she loved her son

dearly, she saw many of the Ben’s negative qualities in him. She

also testified that Alvarez loved little children, but did not know

how to treat them.

Dr. James Sanderson is a clinical psychologist and clinical

neuropsychologist. Dr. Sanderson met with Alvarez over the

course of two days to conduct a comprehensive

neuropsychological evaluation. Alvarez told Dr. Sanderson that

from age 20 to 25 he was a “big-time alcoholic” and had used

marijuana and methamphetamine. Alvarez reported though

that he had been alcohol and drug free for five years. In 1984,

Alvarez’s intelligence test score showed borderline intellectual

functioning, the fifth percentile. In 1997, Alvarez’s intelligence

test score was low-average.

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Based upon his examination, Dr. Sanderson concluded

Alvarez suffered from organic brain impairment. Dr. Sanderson

performed multiple tests on Alvarez and all but one showed that

Alvarez’s organic brain damage scores were all within the brain-

damaged range. This, along with his IQ scores, suggested

Alvarez had failures in brain development or had experienced

deterioration of adaptive abilities dependent upon brain

function. Dr. Sanderson testified that Alvarez is able to control

his behavior, but his impairments can make it more difficult.

Dr. Sanderson testified that many times abusers of children

have abuse in their early history.

II. DISCUSSION

A. Denial of Motion for Change of Venue

Alvarez now argues that the trial court prejudicially erred

in denying a motion for a change of venue. We conclude he has

forfeited this claim.

On April 13, 1995, the prosecution initially dismissed

charges against Alvarez related to only Tyler’s murder after

witnesses failed to appear. On November 7, 1996, after Dylan’s

death, Alvarez was indicted with the charges related to both the

murder of Tyler and Dylan. Alvarez’s first trial began on

February 24, 1998, and the jury returned guilty verdicts, true

findings on the special circumstance allegations, and a death

verdict. On November 18, 1998, the trial court granted a

defense motion for a new trial due to juror misconduct after a

juror’s wife called into a radio talk show during the trial. Retrial

commenced on April 4, 2000, and the jury again returned guilty

verdicts, true findings on the special circumstance allegations,

and a death verdict. This time the court entered a judgment of

death.

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Before the retrial, Alvarez brought a motion for a change

of venue. In connection with this, the defense submitted an

exhibit that included over 100 pages of media articles that had

appeared between 1994 and 1998, and which had been

presented during a hearing on a change of venue motion at the

first trial and the hearing on the new trial motion. The defense

submitted a second exhibit of more recent articles that appeared

between August and October 1999. The defense submitted as a

third exhibit a local newspaper, which included an article

entitled “Accused Testifies in Tears.” The defense further

submitted a video exhibit that compiled the electronic media on

the Alvarez matter for November through December 1998 as

well as another exhibit listing all of the news broadcasts

contained in the videos. Finally, the defense submitted a second

video exhibit that compiled all electronic media from February

23, 1998, to October 27, 1998. The court also had in its

possession video exhibits from prior proceedings on the Alvarez

matter that showed newscasts from earlier in time. In

argument, defense counsel noted that 152 news broadcasts

referred to the present case in less than two months, from

November 4 through December 31, 1998. In terms of the nature

of the broadcasts, defense counsel emphasized that they often

describe Alvarez as a “two-time child killer or kid killer,” that

they talk about the high costs of the case, and that many

indicate that he had previously received a death sentence, even

though that is not technically accurate. In terms of its

inflammatory nature, defense counsel argued that the media

sensationalized the case in such a way as to have a substantial

impact on Alvarez. In opposition to the motion, the prosecutor

noted that much of the coverage dated back to early 1997, at a

minimum, and that “the past 19 months, since the original jury

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verdict during the first trial, there hasn’t been a great deal of

publicity.”

The trial court denied the motion, finding that Alvarez had

not established by the evidence that the substantial media

coverage was reasonably likely to result in him being denied a

fair trial in Kern County. The court recognized “this is a high-

profile case, and there’s little or no question in that regard that

this matter has received a substantial amount of media coverage

from television news, radio station news, the newspaper. The

coverages in evidence that’s been presented here to substantiate

that is quite clear.” However, the court ultimately found that

change of venue was not justified, reasoning:

“I have not been convinced by the defense that there would

be any reason to grant the motion for a change of venue.

“There are no studies having been submitted. There’s no

indication of the impact of this media blitz, if you will,

media coverage of these various matters that would cause

the Court to conclude that the defendant, in spite or in the

face of this media coverage, that the defendant would be

denied a right to have a fair trial before a jury in this

community.

“And, therefore, the Court’s going to make a finding to that

effect. Understanding that the order that’s made is to be

made not imposing prejudice on the defense to the point

that it precludes them from making a further request if

there are other matters that should surface during the voir

dire process.” (Italics added.)

The Attorney General argues that Alvarez forfeited this

claim when he failed to renew his change of venue motion after

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voir dire. We agree. Here, the trial court denied the motion

before the retrial with the “[u]nderstanding that the order that’s

made is to be made not imposing prejudice on the defense to the

point that it precludes them from making a further request if

there are other matters that should surface during the voir dire

process.” The trial court further explained that the motion for

change of venue “could be reopened by either party if it feels it’s

appropriate based upon new evidence that might be brought up

during the voir dire process.”

We have held that “where leave is granted to counsel to

renew his application if the facts disclosed on the impanelment

should further warrant it, and . . . where counsel fails thereafter

to renew his motion, he cannot claim that error was committed

by the court in failing to order a change of venue. [T]he failure

to renew [the] motion, where it was denied temporarily only, [i]s

an abandonment and waiver of the whole question, and fatal to

any claim based upon the original application.” (People v.

Staples (1906) 149 Cal. 405, 412; accord, People v. Oyler (2025)

17 Cal.5th 756, 806 (Oyler); People v. Johnson (2015) 60 Cal.4th

966, 982; People v. McCurdy (2014) 59 Cal.4th 1063, 1076

(McCurdy); People v. Hensley (2014) 59 Cal.4th 788, 796.)

Alvarez responds that renewal of the motion was

unnecessary here because the trial court agreed to revisit the

issue only if new evidence surfaced during voir dire but there

was nothing new or unexpected about voir dire. Furthermore,

Alvarez notes that this court has reached the merits of venue

motions not renewed after voir dire when the claim of error was

based on the evidence at the hearing and not on what develops

later during voir dire. (See People v. Jenkins (2000) 22 Cal.4th

900, 946 [defendant’s claim had “been waived to the extent it is

based upon occurrences at voir dire”].) For several reasons, we

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reject Alvarez’s argument. First, Alvarez’s reading of the court’s

remarks, even if correct, does not distinguish this case from

others in which we have found forfeiture. (Oyler, supra, 17

Cal.5th at p. 806 [trial court “specified that it was denying

defendant’s motion without prejudice to renewing it if voir dire

showed that the court could not empanel an impartial jury”];

People v. Johnson, supra, 60 Cal.4th at p. 982 [trial court stated

that “ ‘denial is without prejudice to renew the motion during

the jury selection, should actual experience in trying to select a

jury so justify’ ”].) Second, Alvarez’s contention that nothing

new surfaced during voir dire is belied by the fact that his

briefing in this court, although detailing the evidence before the

trial court before it denied his motion, also contains substantial

discussion of what transpired after the ruling and during voir

dire. Specifically, based upon the record of the voir dire

proceedings, Alvarez calculates and emphasizes the percentage

of jurors who admitted disqualifying bias because of their

knowledge of the case. In this court, Alvarez relies on this

evidence to supply what the trial court believed was lacking

when it denied the motion: something to demonstrate “the

impact of th[e] media blitz” on the jury pool. Because the trial

court’s denial was without prejudice to renewal and because

Alvarez did not renew his motion during or after voir dire, we

find that the claim is forfeited. (See McCurdy, supra, 59 Cal.4th

at p. 1076 [“Even assuming futility could excuse defendant’s

failure to renew his motion, the court’s isolated remark does not

establish irreversible hostility to changing venue”].) To be clear,

we are not applying the partial waiver approach from Jenkins

here, but, in any event, even if Alvarez’s claim had “been waived

to the extent it is based upon occurrences at voir dire” (Jenkins,

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at p. 946), the result would be the same given Alvarez’s reliance

on evidence from voir dire.

B. Denial of Motion to Sever

Alvarez next claims the trial court abused its discretion in

denying a motion to sever the two murder counts and that such

denial resulted in the deprivation of his state and federal

constitutional rights of due process, fundamental fairness, and

reliable fact-finding underlying a capital verdict. We disagree.

Before the first trial, Alvarez filed a motion to sever the

two murder counts (counts one and two), the assault on a child

with force likely to produce great bodily injury resulting in death

count (count three), and a count alleging that Alvarez failed to

register as a sex offender (count four). The court severed the

failure to register count after the prosecutor conceded to do so.9

The trial court otherwise denied Alvarez’s severance motion,

reasoning that “Counts 1 and 2 are of the same class of crime or

offense as one another” and that “Counts 2 and 3 are connected

together in their commission.” Furthermore, the court found

that “defendant has failed to establish that there would be an

abuse of discretion if the Court did not sever” and “the defendant

failed to make a clear showing that prejudice would occur if the

charges were tried together.”

During the second trial, Alvarez again filed a motion to

sever. The trial court took judicial notice of the first trial. On

February 28, 2000, the trial court again denied the motion to

sever, stating:

9

The prosecution ultimately dismissed the failure to

register count in the interest of justice (§ 1385).

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“The Court has carefully reviewed the arguments of

counsel, plus the motions that have been submitted. And

it appears to the Court that it is appropriate to deny the

motion to sever. The consolidation of these is in order, and

the Court is — with what the previous law is that relates

to matters of this nature, and the Court’s going to deny the

motion to sever.”

Section 954 provides in relevant part: “An accusatory

pleading may charge two or more different offenses connected

together in their commission, . . . or two or more different

offenses of the same class of crimes or offenses, under separate

counts, . . . provided, that the court in which a case is triable, in

the interests of justice and for good cause shown, may in its

discretion order that the different offenses or counts set forth in

the accusatory pleading be tried separately or divided into two

or more groups and each of said groups tried separately.”

Because the two murder charges are of the same class and the

charge for assault on a child causing great bodily injury

resulting in death is connected in commission, the statutory

requirements for joinder are satisfied. “Defendant, therefore,

can predicate error in denying the motion only on a clear

showing of potential prejudice. [Citation.] We review the trial

court’s ruling on the severance motion for abuse of discretion.”

(People v. Kraft (2000) 23 Cal.4th 978, 1030 (Kraft).)

“ ‘ “The burden is on the party seeking severance to clearly

establish that there is a substantial danger of prejudice

requiring that the charges be separately tried.” ’ ” (People v.

Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford).) “In

determining whether a court abused its discretion in declining

to sever properly joined charges, we first consider ‘the cross-

admissibility of the evidence in hypothetical separate trials.’

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([People v. Soper (2009) 45 Cal.4th 759,] 774.) If the evidence is

cross-admissible, then this ‘is normally sufficient to dispel any

suggestion of prejudice and to justify a trial court’s refusal to

sever properly joined charges.’ (Id. at pp. 774–775.) If not, then

we also consider ‘(1) whether some of the charges are

particularly likely to inflame the jury against the defendant; (2)

whether a weak case has been joined with a strong case or

another weak case so that the totality of the evidence may alter

the outcome as to some or all of the charges; or (3) whether one

of the charges (but not another) is a capital offense, or the

joinder of the charges converts the matter into a capital case.’

(Id. at p. 775.)” (People v. Gomez (2018) 6 Cal.5th 243, 275–276

(Gomez); see also People v. Hin (2025) 17 Cal.5th 401, 439;

People v. Lamb (2024) 16 Cal.5th 400, 416–417.) Under

Evidence Code section 1101, subdivision (b), “evidence that a

person committed a crime, civil wrong, or other act” can be cross-

admissible “when relevant to prove some fact (such as motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident, or whether a defendant in a

prosecution for an unlawful sexual act or attempted unlawful

sexual act did not reasonably and in good faith believe that the

victim consented) other than his or her disposition to commit

such an act.”

Alvarez argues that the murder of Tyler and Dylan were

so dissimilar that they would not be cross-admissible. Alvarez

notes that the prosecution initially dismissed the charges

related to Tyler’s murder before Dylan’s murder occurred.

Alvarez also claims that the evidence for Tyler’s murder was

weaker than the evidence of Dylan’s murder. As a result, he

argues that combining the two inflammatory murders bolstered

the case for each other. He further argues that combining the

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two cases into a single proceeding qualified this as a capital case

under the multiple-murder special circumstance. (See § 190.2,

subd. (a)(3) [“The defendant, in this proceeding, has been

convicted of more than one offense of murder in the first or

second degree” (italics added)].) Alvarez is correct that the

present matter is “one in which the joinder itself gave rise to the

special circumstance allegation (multiple murder, § 190.2, subd.

(a)(3)), requiring that a higher degree of scrutiny be given the

issue of joinder.” (Bradford, supra, 15 Cal.4th at p. 1318.)

However, any inference of prejudice here was dispelled by the

cross-admissibility of the two homicides. (See Gomez, supra,

6 Cal.5th at p. 275.)

Alvarez notes that the trial court did not explain the

rationale for denying the motion to sever before the retrial and

that consequently the court did not specifically rule on cross-

admissibility. However, when the trial court denied the motion

to sever, it did refer back to “what the previous law is that

relates to matters of this nature.” In denying severance before

the first trial, the court had explained, that “statutory

requirements for joinder are met. Counts 1 and 2 are of the

same class of crime or offense as one another.” The court further

explained at the first trial, “the defendant failed to make a clear

showing that prejudice would occur if the charges were tried

together.” Before the court’s ruling on the motion to sever at the

retrial, both parties also argued and briefed the issue of cross-

admissibility as well. By referring back to its previous ruling

before the second trial, the court’s ruling before the retrial

makes clear that the court found that Alvarez had failed to make

a clear showing of prejudice if the charges were tried together.

Indeed, any inference of prejudice was dispelled because,

as the Attorney General contends, evidence of the two murders

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was cross-admissible. (Gomez, supra, 6 Cal.5th at p. 275.) Here,

the two offenses had numerous distinct similarities: (1) both

victims were the children of Alvarez’s girlfriend at the time they

died; (2) Alvarez resided with each victim immediately before

they died; (3) before Alvarez moved in, the two victims did not

have abnormal physical injuries; (4) after Alvarez moved in,

both began to show signs of physical abuse; (5) Alvarez was the

person that “found” both in critical condition; (6) Alvarez was

the last person known to be with both children before they went

into the critical condition that resulted in their deaths; (7)

Alvarez was not noticeably sad after either death; (8) Alvarez

had an argument with both victim’s mothers within a day before

the children died; (9) Alvarez had previously been found alone

in each child’s bedroom at night; (10) both children died from

assaultive trauma; (11) both children sustained similar bruising

and injury to the ears; and (12) in both cases Alvarez oversaw

the child in a separate room while the mother talked to the 9-1-

1 operator. Alvarez responds that the two murders are

dissimilar and that the similarities the Attorney General relies

upon are superficial or mistaken. He notes that Tyler was an

infant who was apparently shaken excessively while his mother

was home, while Dylan was a four year old who had been beaten

while only Alvarez was home. He also notes that the offenses

were committed nearly two years apart, and there was evidence

that Tyler’s mother was abusive to another child. Alvarez

claims there are no common marks on the two victims

supporting that the same person committed both crimes and

that the claimed similarities shed no light on the mental state

of the perpetrator. We find that the Attorney General has the

better argument. (See Kraft, supra, 23 Cal.4th at p. 1032 [“That

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all of the charged murders were not committed in exactly the

same way. . . does not preclude cross-admissibility”].)

First, the 12 similarities discussed above clearly make the

two murders cross-admissible for showing an absence of mistake

or accident. “[W]hen a defendant admits committing an act but

denies the necessary intent for the charged crime because of

mistake or accident, other-crimes evidence is admissible to show

absence of accident.” (People v. Whisenhunt (2008) 44 Cal.4th

174, 204.) Nevertheless, “we have never limited evidence of

absence of accident to such instances. Rather, a defendant’s

plea of not guilty puts in issue all the elements of the charged

offense.” (Ibid.) Here, the evidence supported that Alvarez was

the last person known to be with both children before they went

into the critical condition that resulted in their deaths and

therefore the two murders are cross-admissible to show absence

of mistake or accident.

Furthermore, the 12 similarities discussed above also

make the murders cross-admissible for showing intent. “[I]n

order to be relevant, the ‘least degree of similarity (between the

uncharged act and the charged offense) is required in order to

prove intent. [Citation.] “[T]he recurrence of a similar result

. . . tends (increasingly with each instance) to [negate] accident

or inadvertence or self-defense or good faith or other innocent

mental state, and tends to establish (provisionally, at least,

though not certainly) the presence of the normal, i.e., criminal,

intent accompanying such an act . . . .” [Citation.] In order to

be admissible to prove intent, the uncharged misconduct must

be sufficiently similar to support the inference that the

defendant “ ‘probably harbor[ed] the same intent in each

instance.’ ” ’ ” (People v. Molano (2019) 7 Cal.5th 620, 665

(Molano).) Here, the two murders are sufficiently similar to

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support the inference that the Alvarez “ ‘ “ ‘probably harbor[ed]

the same intent in each instance.’ ” ’ ” (Ibid.)

Alvarez further argues that the prosecutor improperly

argued that the jurors could use a conclusion of guilt as to one

homicide as circumstantial evidence that Alvarez was also

guilty of the other homicide. Alvarez relies upon the

prosecutor’s argument directing the jury to “put two and two

together and you see the similarities and consider the evidence

together on both, which you’re entitled to do, as well, it is clear

that he is the man who killed both of these boys.” To begin with,

the jury was properly instructed with CALJIC No. 17.02, which

provided in part: “Each count charges a distinct crime. You

must decide each count separately.” Alvarez argues that this

instruction did not tell the jurors anything about what evidence

they could or could not consider in regard to each count. Alvarez

though presumes that the two homicides were not cross-

admissible under Evidence Code section 1101. As discussed

above, the evidence from the two homicides was cross-

admissible. “ ‘[U]nder Evidence Code section 1101 the jury

properly could consider other-crimes evidence in connection

with each count, and also could consider evidence relevant to

one of the charged counts as it considered the other charged

count.’ ” (People v. Geier (2007) 41 Cal.4th 555, 579, quoting

People v. Catlin (2001) 26 Cal.4th 81, 153.) We find that the

trial court did not abuse its discretion in denying the motion to

sever.

C. Denial of Request to Discharge Juror for

Disobeying Court Orders

Alvarez claims the trial court erred when it declined to

discharge Juror No. 9 for identifying himself as a juror on the

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Alvarez case and describing the case as “crazy” or “stupid” to a

nonjuror while inebriated in a bar. We need not decide whether

juror misconduct occurred here because there was no

substantial likelihood of juror bias from this brief,

nonsubstantive conversation.

Throughout the trial, the court repeatedly instructed the

jurors not to speak with any juror or nonjuror about the case.

Before the court adjourned for Easter recess, the court again

admonished the jury: “You are going to be gone for some time

now — 10, 11 days. Please don’t discuss this case amongst

yourselves or with anyone else or make any independent

investigations or look at papers or articles, or anything of that

nature.”

The day the court resumed session after the 11-day Easter

recess, the prosecution informed the court of a potential juror

incident. The prosecutor’s babysitter had talked to a man at

Jelly’s Bar who, as the prosecutor reported, “said, well, I’m a

juror on the Frank Alvarez case. And he said, yes, I’m Juror No.

9 on that crazy or stupid — she can’t remember the word —

Frank Alvarez case.” The court then questioned Juror No. 9

about the alleged conversation. The juror recalled going to

Jelly’s Bar in the last 11 days. The juror did not initially recall

discussing the case with anyone, but then remembered “I may

have. Not — well, I don’t recall any specifics. I had a few

cocktails that evening, but I don’t remember discussing the case

with anyone. Maybe the fact that I was on the jury.” After the

court then asked if he recalled saying “something about being

on the jury in the Alvarez case,” the juror replied, “I don’t

specifically recall saying that. Like I said, I had a couple

cocktails that evening, and I probably forgot that I even talked

to [anyone]. Typically, I don’t — if it ever comes up in any

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conversation, it’s just that I’m on the jury.” When the court

asked if he knew the young woman the court was referring to,

the juror replied, “I vaguely recall hearing her say something

like that, that she was a baby-sitter, but that’s about it.” When

defense counsel asked if he had expressed any opinion about the

case or made derogatory comments about the case at the bar to

the young woman, the juror replied, “no.” The juror also denied

making any comments about the case other than that he was a

juror.

Defense counsel moved for Juror No. 9 to be discharged

because, based upon the prosecutor’s description of the

babysitter’s comments, the juror had “expressed an opinion

about this case being stupid or crazy” and was now “either not

being honest or I think he was so inebriated that he didn’t know

what he was saying.” Defense counsel did not think that the

juror could be fair and impartial. The prosecutor responded that

the juror was being honest and he “indicated, right off, that he

did have this conversation and that he told the Court it was

about being on the jury.” In any event, the prosecutor also

argued that “crazy” or “stupid” is a “very innocuous statement”

and is not in any way inflammatory. The prosecutor thought

the juror could be fair and impartial. The trial court agreed with

the prosecution and “disagreed with defense counsel’s jumping

to the fray here and making some comment that the juror is

lying about what he had to say on the stand.” The trial court

thought the juror “was very forthright in his comments,” but

thought that it was appropriate to speak to the prosecutor’s

babysitter.

The court later met with the prosecutor’s babysitter who

had spoken with Juror No. 9 at the bar during the court’s Easter

recess. The babysitter said she had a margarita at dinner before

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arriving at the bar and was relatively sober when she saw Juror

No. 9. She said Juror No. 9 appeared somewhat intoxicated and

that you would not want him driving home. She told the court

that she and Juror No. 9 were making “small talk” at Jelly’s Bar

because they had mutual friends and they discovered they both

had a mutual connection with a Kern County deputy district

attorney who was not involved in this case.10 The babysitter

testified that Juror No. 9 “proceeded to tell me that he was on

the Alvarez case, and he said the — I don’t recall if he said the

crazy Alvarez case or the stupid Alvarez case, and they were out

there playing a lot of loud music and I said excuse me, and then

he repeated again I’m on this crazy or stupid Alvarez case, and

I said is that the case that Cathy Purcell is doing, and he said

yes, because I was not sure if that’s what he said, so I made him

repeat it more than once, and I said you know what, I’m a very

good friend of Cathy Purcell, I do not think you should tell me

anything else about this, I don’t want to talk to you about this,

and then he proceeded to kind of go on and say yeah, I’m juror

number nine. He said that several times.”11 The babysitter then

walked away from the juror because she “was afraid he would

say something else.” She estimated she spoke with Juror No. 9

for “three to five minutes” before she walked away. She

reiterated that the Juror No. 9 said more than once either “that

10

During voir dire, Juror No. 9 informed the court his wife

used to date a Kern County deputy district attorney. The

prosecutor’s babysitter informed the court that she currently

was dating this same deputy district attorney.

11

Cathy Purcell employed the babysitter and was the

prosecutor in Alvarez’s case that brought this situation to the

court’s attention.

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stupid Alvarez case” or “that crazy Alvarez case,” but she did not

recall which. When the defense asked if Juror No. 9 said it a

“derogatory tone,” the babysitter testified “no, he just kind of

matter-of-factly said I’m doing the stupid, crazy, Alvarez case.”

She confirmed that Juror No. 9 did not say anything else about

the case.

After the prosecutor’s babysitter was excused, the defense

requested “juror number nine be excused for expressing an

opinion.” The court then denied the defense’s request,

explaining:

“I don’t think there’s anything about this conversation

that the juror had with this young lady that would indicate

that — well, obviously she didn’t suggest to him any

thoughts as to how he should act as a juror in this case or

what the facts are according to her or anything of that

nature. In fact, she acted very responsibly in moving away

from the situation.

“It didn’t appear from what she indicated was the

conversation that there’s anything about referring to this

as a stupid or the crazy Alvarez case. It’s just merely a

matter of speaking that relates to the case itself, in

general, but nothing obviously having to do with any

interpretation of what the evidence is. So the motion is

denied in that regard.”

Alvarez now argues the trial court erroneously refused to

discharge Juror No. 9 after the juror committed misconduct by

disobeying court orders not to speak to anyone about the case.

“A defendant accused of a crime has a constitutional right to a

trial by unbiased, impartial jurors.” (People v. Miles (2020)

9 Cal.5th 513, 601 (Miles).) Juror misconduct occurs when an

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“overt event is a direct violation of the oaths, duties, and

admonitions imposed on actual or prospective jurors, such as

when a juror conceals bias on voir dire, consciously receives

outside information, discusses the case with nonjurors, or

shares improper information with other jurors.” (In re Hamilton

(1999) 20 Cal.4th 273, 294 (Hamilton).) “ ‘It is misconduct for a

juror during the course of trial to discuss the case with a

nonjuror.’ ” (People v. Lewis (2009) 46 Cal.4th 1255, 1309

(Lewis).)

As general rule, “[a] finding of ‘juror misconduct “raises a

presumption of prejudice that may be rebutted by proof that no

prejudice actually resulted.” ’ ” (People v. Johnsen (2021)

10 Cal.5th 1116, 1171 (Johnsen).) However, this Court has also

held that “ ‘[w]hen the alleged [juror] misconduct involves an

unauthorized communication with or by a juror, the

presumption [of prejudice] does not arise unless there is a

showing that the content of the communication was about the

matter pending before the jury, i.e., the guilt or innocence of the

defendant.’ ” (Hamilton, supra, 20 Cal.4th at pp. 305–306.)

“The verdict will be set aside only if there appears a substantial

likelihood of juror bias. Such bias can appear in two different

ways. First, we will find bias if the extraneous material, judged

objectively, is inherently and substantially likely to have

influenced the juror. [Citations.] Second, we look to the nature

of the misconduct and the surrounding circumstances to

determine whether it is substantially likely the juror was

actually biased against the defendant. [Citation.] The

judgment must be set aside if the court finds prejudice under

either test.” (In re Carpenter (1995) 9 Cal.4th 634, 653.) “Our

review ‘accept[s] the trial court’s credibility determinations and

findings on questions of historical fact if supported by

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substantial evidence,’ and we independently examine the mixed

question of ‘[w]hether prejudice arose from [the] juror

misconduct.’ ” (Johnsen, supra, 10 Cal.5th at p. 1171.)

Here, Alvarez argues it is serious juror misconduct for a

juror to speak to a nonjuror about the case, “regardless of

whether the juror receives new information or is otherwise

influenced.” Alvarez contends that, although the defense was

unable to prove that any actual harm occurred, the evidence

established that this juror could not be trusted to obey court

orders and therefore he may have repeated his misconduct

without getting caught.

Alvarez cites to People v. Cissna (2010) 182 Cal.App.4th

1105, in which the Court of Appeal found that a juror’s failure

to “comply with repeated admonitions [of the court] not to

discuss the case casts serious doubts on [the juror’s] willingness

to follow the court’s other instructions.” (Id. at p. 1118.)

However, “[t]he question of what constitutes juror bias varies

according to the circumstances of the case.” (Id. at p. 1116.)

While Cissna and this case both involve a juror speaking to a

nonjuror, the cases are materially different. In Cissna, the

Court of Appeal granted a new trial after the juror spoke to a

nonjuror almost daily about substantive matters of the trial and

deliberation which made the nonjuror “in effect, a [thirteenth]

juror.” (Id. at p. 1120.) “Defendant was entitled to have his case

evaluated by 12 jurors, not by 12 jurors and one extra, ‘invisible,’

unsworn juror whom Juror D. consulted on a daily basis.” (Ibid.)

The Court of Appeal determined the defendant was unjustly

prejudiced by the juror and ordered a new trial. (Id. at p. 1111.)

Juror Number 9’s communication with the babysitter was,

at a minimum, ill-advised. However, we do not decide whether

juror misconduct occurred here because we find no substantial

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likelihood of juror bias. (Miles, supra, 9 Cal.5th at p. 602.)

“Juror misconduct raises a ‘presumption of prejudice,’ but that

presumption is rebutted when the reviewing court determines,

based on the record as a whole, that ‘ “ ‘there is no substantial

likelihood that the complaining party suffered actual harm.’ ” ’ ”

(People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 26–27

(Miranda-Guerrero).) Here, Juror No. 9 and the babysitter

spoke on one occasion for approximately three to five minutes,

unlike in Cissna when the juror and nonjuror spoke daily for

long periods of time. In their conversation, Juror No. 9 briefly

mentioned his involvement as a juror in a case, without

receiving any substantive information from the babysitter nor

expressing any bias against Alvarez.

Alvarez responds that the trial court was required to

discharge Juror No. 9 because his conversation with the

prosecutor’s babysitter at a bar revealed that he might engage

in similar misconduct later in the trial. However, the record

does not support Alvarez’s purely speculative claim. The trial

court determined that the juror was trustworthy, “was very

forthright in his comments” to the court, and that the reference

to “stupid” or “crazy” was “just merely a matter of speaking that

relates to the case itself, in general, but nothing obviously

having to do with any interpretation of what the evidence is.”

The record supports the trial court’s determination. (See

Johnsen, supra, 10 Cal.5th at p. 1171 [“Our review ‘accept[s] the

trial court’s credibility determinations and findings on questions

of historical fact if supported by substantial evidence’ ”].)

While trial courts must be vigilant to protect defendants

from juror prejudice, we have typically found that a

presumption of prejudice was rebutted when a juror spoke with

a nonjuror about nonsubstantive aspects of the case. For

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example, in Lewis, supra, 46 Cal.4th 1255, this court found a

juror’s discussion with her husband about “the manner in which

the jury picked the foreperson and the foreperson’s refusal to

reveal the results of the first jury poll . . . [was] nothing

substantive. She also confirmed that the incident and the trial

court’s inquiry would not affect her ability to be fair and

impartial.” (Id. at p. 1309.) In People v. Stewart (2004)

33 Cal.4th 425, this court found a juror’s misconduct in a capital

case was not prejudicial when the juror told defendant’s former

girlfriend, “ ‘ “We’re not supposed to have any contact but I just

wanted to tell you that you’re a very beautiful woman,” ’ ”

because the comment did “not appear to have involved anything

of substance concerning the merits of the case.” (Id. at pp. 509–

510.)

This court has repeatedly held that “ ‘[i]f the system is to

function at all, [courts] must tolerate a certain amount of

imperfection short of actual [juror] bias. To demand theoretical

perfection from every juror during the course of a trial is

unrealistic.’ ” (Miles, supra, 9 Cal.5th at pp. 601–602.) Here,

the conversation between Juror No. 9 and the prosecutor’s

babysitter did not reveal nor introduce substantive information

about the case. Rather, Juror No. 9 and the babysitter briefly

discussed nonsubstantive matters. In sum, “ ‘ “ ‘there is no

substantial likelihood that the complaining party suffered

actual harm.’ ” ’ ” (Miranda-Guerrero, supra, 14 Cal.5th at

pp. 26–27.) The record supports the trial court’s denial of the

motion to discharge Juror No. 9. (See Johnsen, supra,

10 Cal.5th at p. 1171.)

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D. Admission of Psychologist Dr. Dean Haddock’s

Rebuttal Expert Testimony

Alvarez claims that the trial court erred by allowing the

psychologist Dr. Dean Haddock to testify in rebuttal about

Shari’s Child Abuse Potential Inventory (CAPI-6) test result.

Alvarez argues that the testimony was not properly scrutinized

for the scientific requirement for admissibility under People v.

Kelly (1976) 17 Cal.3d 24, 30 (Kelly) in a hearing12 and was not

relevant, thereby prejudicially violating his state and federal

rights to a fair trial. We reject Alvarez’s claim.

In April 2000, the trial court conducted an Evidence Code

section 402 hearing on the defense’s motion to admit evidence

from a CPS investigation conducted that same month. The CPS

investigation documented Shari’s physical abuse of her

daughter Taylor and in-utero abuse of her unborn child. The

prosecution noted that if evidence Shari abused Taylor was

admitted, “the People intend to offer rebuttal testimony in the

form of testimony from expert mental health professional[], . . .

Dr. Dean Haddock, that after testing and examination Shari is

not at risk for physically abusing her child.” The trial court

granted the defense’s motion to admit evidence from the CPS

investigation. The court, however, ruled that CPS documents,

12

Alvarez’s briefs and objection in the trial court included

“reference to Frye v. U.S. (D.C. Cir. 1923) 293 Fed. 1013, which

we relied upon for the rule announced in the Kelly decision.

Because the United States Supreme Court in Daubert v. Merrell

Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, ruled that the

Federal Rules of Evidence (28 U.S.C.) superseded Frye, we refer

here solely to Kelly.” (People v. Cowan (2010) 50 Cal.4th 401,

469, fn. 22.)

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files, or records themselves were inadmissible and only the

observations of the witnesses would be presented to the jury.

At trial the defense first elicited evidence during cross-

examination of prosecution witnesses that Shari had abused her

daughter Taylor, who was born a year after Tyler’s death in

1995. The defense then presented multiple defense witnesses

who confirmed that Shari abused Taylor. A neighbor testified

for the defense that Shari constantly berated her daughter. He

saw Shari, her brother, and her brother’s girlfriend holding

Taylor down by the shoulders “probably” more than five times

and believed that they took pleasure in it. While laughing, they

would yell at her to make her scream for hours. The neighbor

testified that Taylor cried all the time and Shari would call her

stupid.

Another neighbor testified for the defense that she heard

Shari be verbally abusive and scream at Taylor every day,

calling her names like “stupid.” The neighbor never saw Shari

hit Taylor, but one time she saw Shari throw a shoe at her

because she came out of her room.

An investigator testified for the defense that a third

neighbor confirmed to him, after initially denying it, that he saw

Shari hit Taylor with an open hand on the back, front, and side

of the head, sometimes knocking the child off her feet. That

neighbor also told the investigator that Shari was always yelling

at the child and that he had seen Shari spank her after removing

her clothing.

Brian Ransom’s sister and his fiancé both testified for the

defense that they had seen a bruise on the corner of Taylor’s eye

in 2000. The fiancé testified that she asked Taylor what had

happened and Taylor in tears said, “I ran out in the rain and my

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mama hit me.” The sister testified that Taylor initially said that

nothing had happened, but then, after the sister asked her what

had happened to her eye, she said that her mother had gotten

mad at her and hit her. Another time, the sister saw bruises on

Taylor’s stomach and on a leg. Taylor said she fell on her

bedpost causing the bruise on her stomach.

In rebuttal, the prosecution then offered the testimony of

psychologist Dr. Dean Haddock. He was a licensed clinical

psychologist and director of a psychological clinic in Bakersfield.

He had a master’s degree and doctorate in clinical psychology,

as well as a doctorate in philosophy. He had received

certifications from peers acknowledging him as being in the top

one percent of his field and was on the referral list for several

superior courts throughout California. He had a special

expertise with a test called the Child Abuse Potential Inventory

and his dissertation research helped established the reliability

of it. The Journal of Clinical Psychology published Dr.

Haddock’s dissertation in 1983. The test is now in its sixth stage

and called “CAPI-6” for short.

Dr. Haddock testified that CAPI-6 “is used primarily

worldwide by Children’s Protective Services to identify persons

who are at risk to physically abuse children in their care. [¶]

Most of the Human Services, at least across the United States

and Canada, are either aware or use it regularly to screen

persons who are involved in foster care or in reunification plans,

when children are being returned to their parents’ care.”

CAPI-6 asks 160 questions that the examinee either

agrees or disagrees with, describing themselves. It is then

scored according to a validity scale and a physical abuse scale.

The validity scale identifies persons trying to mislead the

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evaluator, which would invalidate the test. The physical abuse

scale makes a predication as to whether a person would be at

risk to abuse children in their care.

In October 1998, Dr. Haddock performed the CAPI-6 test

on Shari Ransom. Dr. Haddock affirmed that CAPI-6 was just

one of the general tests in a battery of tests that he gives. When

the prosecution asked Dr. Haddock to describe the results of

that test, the defense objected based upon the Kelly standard.

The trial court overruled the objection. Dr. Haddock then

testified that in October 1998 he found that Shari “was not at

risk to physically abuse children in her care.”

On cross-examination, Dr. Haddock explained that his

opinion was based upon the results of CAPI-6 test as well as a

clinical interview, a medical checklist, a social history

questionnaire, a clinical assessment with a mental status

examination, a structured parenting questionnaire, a

house/tree/person projective drawing test, a kinetic family

projective drawing test, a Milan clinical multitaxial inventory-2

test, a neurological screening test, a Ravens progressive

matrices nonverbal IQ test, a thematic apperception test, and a

“three wishes” test.13 Dr. Haddock added that the empirical

13

The Milan clinical multitaxial inventory-2 is an

empirically scored test that provides information about major

mental disorders or personality disorders. The medical

checklist and social history questionnaire asked questions about

medical history, education, family life, employment, home life,

legal issues, and general social background. The clinical

assessment with mental status examination assesses

intelligence and memory and provides insight into whether a

person has any major mental disorders. The neurological

screening test assesses whether there are any head injuries or

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tests, like CAPI-6 and the Milan clinical multiaxial inventory-2,

were more valid and reliable than the subjective tests (i.e., the

house/tree/person projective drawing test, the kinetic family

projective drawing test, the thematic apperception test, and the

“three wishes” test). Dr. Haddock also consulted the juvenile

court records in Shari’s files. When defense counsel asked if his

predictions had ever been wrong, Dr. Haddock replied, “Not that

I’m aware of.”

Shortly after, when defense counsel asked if Shari’s use of

controlled substances prior to 1998 was a factor on which he

based his opinion, Dr. Haddock replied affirmatively. Defense

counsel then requested “to go into what his knowledge was” and

requested a sidebar for clarification. The prosecutor requested

the jury be admonished that any statements that come in

regarding Shari’s prior drug usage should be considered only as

part of the basis for the doctor’s opinion and not for the truth of

the matter asserted. At the sidebar, defense counsel again

requested clarification, explaining “What I’m trying to find out

what he was told, what he knows, what the basis of his opinion

was[,] not to find out whether it was a valid opinion or not.” The

prosecutor argued that Dr. Haddock’s statements of Shari’s drug

abuse was hearsay. The court was concerned because the “side

neurological difficulties that might instead present as a mental

disorder. The Ravens progressive matrices nonverbal IQ test is

an empirical test that tests for intelligence. The

house/tree/person projective drawing test and the kinetic family

projective drawing test are subjective tests and are interpreted

by the person who is doing the assessment to determine the

subject’s drives and personality style. The thematic

apperception test is also subjective and asks the subject to tell a

story about a picture. The “three wishes” test is subjective as

well and provides an idea about the subject’s future.

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trips” in the case are “very time-consuming processes . . . [and]

distractive to the jurors.” The court clarified that “you have a

right to look into these items that he has reference[d] and I’m

going to allow you, for a limited purpose, to do so, but we don’t

need to get into a long, detailed review that is so time-consuming

that it’s distract[ing] to the jurors . . .” Defense counsel then

continued to argue that, “I don’t personally see what the

relevance is and his opinion as to whether he thought Shari

Ransom was potentially abusive in 1998 [when the CAPI-6 test

was performed] has to do with whether or not, for example, she

abused Taylor in 2000 [when CPS investigated her] or, for that

matter, whether she was abusive towards Tyler Ransom back in

1994 [when Tyler died], but they put him on as a witness, so now

I’ve got to be able to question him regarding his opinion.” The

court granted the prosecutor’s request for an admonition that

any statements that come in regarding Shari’s prior drug usage

should be considered only as part of the basis for the doctor’s

opinion and not for the truth of the matter asserted and “hope[d]

everybody understands now my ruling, and, that is, for a limited

purpose you may pursue this matter.” Dr. Haddock was then

questioned about the scope of his test’s findings from 1998. He

stated that his opinion regarding Shari’s potential for abuse,

was time-limited to when he performed the test in 1998. Dr.

Haddock clarified that he did not render an opinion regarding

Shari’s potential for abuse in 1994 or in 2000.

1. Applicability of People v. Kelly (1976) 17 Cal.3d 24

On appeal, Alvarez claims that the psychologist’s

testimony should not have been permitted without first

determining whether CAPI-6 met the Kelly standard for new

scientific evidence. Alvarez further argues that Dr. Haddock’s

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testimony cannot be relied upon to provide a general consensus

in the scientific community because he had a vested interest in

developing and promoting the CAPI-6 examination due to his

dissertation research on the test. We find that the Kelly

standard does not apply and therefore the trial court was not

required to hold a hearing to determine the admissibility of

scientific evidence under Kelly and the trial court was also not

required to determine whether CAPI-6 is generally accepted as

reliable in the scientific community. Accordingly, the trial court

did not err in overruling defense counsel’s objection under Kelly.

“Under the Kelly rule, ‘ “when faced with a novel method

of [scientific] proof, [we] have required a preliminary showing of

general acceptance of the new technique in the relevant

scientific community” before the scientific evidence may be

admitted at trial.’ (People v. Daveggio and Michaud (2018)

4 Cal.5th 790, 831, quoting Kelly, supra, 17 Cal.3d at p. 30.)

Kelly ‘renders inadmissible evidence derived from a “new

scientific technique” unless the proponent shows that (1) “the

technique is generally accepted as reliable in the relevant

scientific community”; (2) “the witness testifying about the

technique and its application is a properly qualified expert on

the subject”; and (3) “the person performing the test in the

particular case used correct scientific procedures.” ’ (People v.

Jackson (2016) 1 Cal.5th 269, 315–316.) The party offering the

evidence has the burden of proving its admissibility by a

preponderance of the evidence.” (People v. Nieves (2021)

11 Cal.5th 404, 444 (Nieves).)

“The purpose of these threshold requirements —

commonly referred to as the Kelly test — is to protect against

the risk of credulous juries attributing to evidence cloaked in

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scientific terminology an aura of infallibility.” (People v.

Peterson (2020) 10 Cal.5th 409, 444 (Peterson).) Considering

that, Kelly applies to unproven techniques, procedures, or

methodologies that seem “in both name and description to

provide some definitive truth which the expert need only

accurately recognize and relay to the jury.” (People v. Stoll

(1989) 49 Cal.3d 1136, 1156 (Stoll).) Without this safeguard,

“[l]ay minds might easily, but erroneously, assume that such

procedures are objective and infallible.” (Ibid.) “However,

absent some special feature which effectively blindsides the

jury, expert opinion testimony is not subject to Kelly/Frye.” (Id.

at p. 1157.) “In most other instances, the jurors are permitted

to rely on their own common sense and good judgment in

evaluating the weight of the evidence presented to them.”

(People v. Venegas (1998) 18 Cal.4th 47, 80.)

In Stoll, this court held that we have not “applied the

Kelly/Frye rule to expert . . . testimony, even when the witness

is a psychiatrist and the subject matter is as esoteric as the

reconstitution of a past state of mind or the prediction of future

dangerousness . . . .” (Stoll, supra, 49 Cal.3d at p. 1157.)

Similarly, in People v. Therrian (2003) 113 Cal.App.4th 609

(Therrian), the Court of Appeal held that two experts’ opinions

on defendant’s likelihood of reoffending was independent of a

new psychological test (the Static-99 test) that both experts

utilized and therefore a Kelly hearing was not required. (Id. at

pp. 615–616.) At trial, “both experts testified that use of the

Static-99 test was not definitive and that other factors were

considered in reaching an opinion.” (Id. at p. 615.) The Court of

Appeal thus found “[t]he concern addressed by Kelly is not

present” and was “satisfied that no reasonable juror would

mistake either expert’s use of the Static-99 test as a source of

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infallible truth on the issue of defendant’s risk of reoffending.”

(Id. at pp. 615–616.)

Stoll and Therrian are somewhat different from the

situation here because in those two cases the experts testified to

the actuarial nature of their tools — that they were conducting

an algorithm-based risk assessment to predict unknown

variables based on some known risk factors. Therrian is further

distinguishable because in that case the psychological

evaluation was used to establish the defendant’s character or

propensity for its own sake (and not to show defendant

committed an act). Stoll is also different because there it was

the defendant that wanted to offer expert character-evidence

testimony.

However, here too, just like Stoll and Therrian, the

concerns addressed by the Kelly standards — to protect against

the risk of credulous juries attributing to evidence cloaked in

scientific terminology an aura of infallibility — are not present.

Instead, Dr. Haddock interpreted CAPI-6’s findings and myriad

other data, such as a clinical interview, a medical checklist, a

social history questionnaire, a clinical assessment with a mental

status examination, and a structured parenting questionnaire,

to form his opinion. In this way, the CAPI-6 test was used as “a

springboard for a far more normative and subjective diagnostic

process.” (Stoll, supra, 49 Cal.3d at p. 1159.) As in Therrian,

where the psychologist formed her opinion on factors beyond the

scope of the Static-99 test, Dr. Haddock formed his opinion on

empirical and subjective sources that assessed factors beyond

the scope of CAPI-6. (Therrian, supra, 113 Cal.App.4th at

p. 612.) The tests, as described above, assessed Shari’s

intelligence, memory, emotional stability, drives, personality

styles, potential mental disorders, and potential neurological

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difficulties. Dr. Haddock did apply the CAPI-6 test. However,

on direct examination, Dr. Haddock affirmed that CAPI-6 was

just one of the general tests in a battery of tests that he gives.

On cross-examination, when defense counsel asked, “Was your

opinion based solely on how she did in the test[,]” Dr. Haddock

replied, “No. . . . It was based on a clinical interview . . . and a

battery of psychological tests.” Thus, Dr. Haddock used his

personal expertise and the results of other tests to reach his

opinion that Shari was not at risk to physically abuse children

in her care. Dr. Haddock was clear that his expert opinion was

not based on the CAPI-6 test alone, but instead factored in at

least eight other tests, several questionnaires, a clinical

interview, and documentation of Shari’s personal, social, legal,

and medical history. It is unlikely that the jury would have

assumed that the CAPI-6 test was definitive. As noted in Stoll,

a psychological evaluation is “a learned professional art, rather

than the purported exact ‘science’ with which Kelly[] is

concerned.” (Stoll, supra, 49 Cal.3d at p. 1159.) Dr. Haddock’s

expert opinion was neither a new scientific technique nor based

primarily on a new scientific technique.14

Furthermore, the purpose of the Kelly test “is to protect

against the risk of credulous juries attributing to evidence

14

The Court of Appeal cases Alvarez cites for support are

distinguishable along similar lines. Unlike People v. John W.

(1986) 185 Cal.App.3d 801, where a psychologist’s testimony

“was inadmissible as the direct product of a legally unreliable

scientific technique” (id. at p. 809), Dr. Haddock relied on more

than one factor to reach his conclusion. Similarly, unlike In re

Amber B. (1987) 191 Cal.App.3d 682, where the Kelly rule

applied to “ ‘a new scientific process operating on purely

psychological evidence’ ” (id. at p. 691), Dr. Haddock relied upon

a multitude of factors.

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cloaked in scientific terminology an aura of infallibility.”

(Peterson, supra, 10 Cal.5th at p. 444.) Defense counsel now

argues that Dr. Haddock’s opinion “clearly had an ‘aura of

infallibility.’ ” In supplemental briefing, Alvarez further argues

that Dr. Haddock’s rebuttal testimony bore an “ ‘aura of

certainty’ ” similar to that found in People v. Leahy (1994)

8 Cal.4th 587, 607. In Leahy, this court concluded that the

Horizontal Gaze Nystagmus (HGN) test — given to drivers

suspected of being under the influence of alcohol — involves a

“ ‘new scientific technique’ ” that must meet Kelly’s general

acceptance test because “the ‘aura of certainty’ emanating from

the officers’ description of HGN tests was unmistakable.” (Ibid.)

However, Alvarez relies primarily on Dr. Haddock’s testimony

that he was personally unaware of any time which his

predictions had been inaccurate, but this statement is not a

claim of infallibility. Dr. Haddock’s statements undoubtedly

were made with some degree of confidence. But, unlike the

testimony in Leahy, where the witness explained that he went

back and cross checked the results of the HGN test with a

subsequent blood test which verified that he has “always been

right” (id. at p. 607), Dr. Haddock here gave the more qualified

response that he was not “aware” of subsequently being proved

wrong. Furthermore, Dr. Haddock qualified his opinion by

emphasizing its imprecision. When giving his opinion in front

of the jurors, Dr. Haddock stated, “at statistically significant

relevance, my best prediction is [Shari Ransom] is not likely to

abuse children in their care.” This phrasing emphasizes

probability, the expert’s fallibility, and a finding that, itself, is

premised on likelihood — not certainty. When defense counsel

asked whether Dr. Haddock’s opinion that a person does not

have a potential abuse meant that a person “will not, under any

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circumstance, go out and abuse another individual[,]” Dr.

Haddock replied, “No.” And finally, Dr. Haddock stated that his

opinion regarding Shari’s potential for abuse was limited to

1998 when he rendered the opinion. Dr. Haddock was clear that

he did not render an opinion regarding Shari’s potential for

abuse in 1994 or 2000. Given the doctor’s explanations and

phrasing, we believe a reasonable juror would have

appropriately evaluated the testimony’s weight. Additionally,

because the expert testimony transparently draws on a variety

of factors and sources, we do not believe it had an aura of

infallibility. Here, a Kelly hearing regarding the admissibility

of Dr. Haddock’s expert testimony was not warranted. (See

Peterson, supra, 10 Cal.5th at p. 446 [dog trailing evidence was

not subject to Kelly and therefore a Kelly hearing was not

necessary before the evidence was admitted, provided that the

requisite foundational requirements are satisfied].)

Consequently, the trial court did not err in overruling defense

counsel’s objection under Kelly without a hearing.

2. Relevance of Testimony on CAPI-6 Examination

Alvarez also argues that Dr. Haddock’s testimony was not

relevant to Tyler’s death in 1994 because Dr. Haddock’s opinion

that Shari was not at risk to physically abuse children in her

care was time limited to 1998. The Attorney General responds

that Dr. Haddock’s testimony was relevant to rebut the

defense’s presentation of evidence on the 2000 CPS

investigation that documented Shari’s physical abuse of her

daughter Taylor and in-utero abuse of her unborn child. We

conclude that the testimony was relevant rebuttal evidence and

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that there was no abuse of discretion in permitting Dr.

Haddock’s rebuttal testimony.15

“Rebuttal evidence is relevant and admissible if it tends

to disprove a fact of consequence on which the defendant has

introduced evidence.” (People v. Valdez (2012) 55 Cal.4th 82,

169.) “[E]vidence presented or argued as rebuttal must relate

directly to a particular incident or character trait [the]

defendant offers in [their] own behalf.” (People v. Rodriguez

(1986) 42 Cal.3d 730, 792, fn. 24.) The trial court, notably, “has

broad discretion to determine the relevance of evidence.”

(People v. Gurule (2002) 28 Cal.4th 557, 614 (Gurule).) “The

admission of evidence in rebuttal is a matter left to the sound

discretion of the trial court. [Citation.] The court’s decision in

this regard will not be disturbed on appeal in the absence of

15

The Attorney General also argues that Alvarez failed to

make a timely objection on relevance grounds to Dr. Haddock’s

testimony regarding Shari’s CAPI-6 examination. Here, when

addressing the prosecution’s objection to cross-examination,

defense counsel argued, “I don’t personally see what the

relevance is and his opinion as to whether he thought Shari

Ransom was potentially abusive in 1998 was potentially abusive

in 1998 has to do with whether or not, for example, she abused

Taylor in 2000 or, for that matter, whether she was abusive

towards Tyler Ransom back in 1994 . . .” Though there is an

open question as to whether defense counsel’s statement that “I

don’t personally see what the relevance is” constitutes a proper

objection, we will assume arguendo that an objection was

preserved and proceed to the merits. (See People v. Zamudio

(2008) 43 Cal.4th 327, 354 [“Although no ‘particular form of

objection’ is required, the objection must ‘fairly inform the trial

court, as well as the party offering the evidence, of the specific

reason or reasons the objecting party believes the evidence

should be excluded, so the party offering the evidence can

respond appropriately and the court can make a fully informed

ruling’ ”].)

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‘palpable abuse.’ ” (People v. Hart (1999) 20 Cal.4th 546, 653

(Hart).)

The trial court here did not abuse its discretion in

admitting Dr. Haddock’s testimony. His opinion that Shari was

not at risk to physically abuse children in 1998 allowed the

prosecution to counter the defense’s evidence of Shari’s physical

abuse in 2000. Though Dr. Haddock’s opinion was time limited

to two years prior to the defense’s evidence of Shari’s physical

abuse, the testimony related directly to a character trait that

the defense sought to establish: that Shari was potentially

abusive. Because the trial court admitted Shari’s 2000 CPS

investigation, it is reasonable to also admit evidence from 1998

addressing Shari’s risk of abuse then. This rebuttal evidence

was relevant and matches the breadth and scope of Alvarez’s

direct evidence, both of which relate to Shari’s propensity for

abuse during the time period after the death of both victims.

The trial court “has broad discretion to determine the relevance

of evidence.” (Gurule, supra, 28 Cal.4th at p. 614.) “The

admission of evidence in rebuttal is a matter left to the sound

discretion of the trial court. [Citation.] The court’s decision in

this regard will not be disturbed on appeal in the absence of

‘palpable abuse.’ ” (Hart, supra, 20 Cal.4th at p. 653.) Here,

there was no palpable abuse of discretion.

E. Trial Court’s Response to Testimony on

Inadmissible Evidence

Alvarez contends that he was improperly sanctioned by

the court without meaningful access to counsel or an

opportunity to be heard in violation of his state and federal

statutory and constitutional rights after he referred in

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testimony to evidence that had been ruled inadmissible. We

disagree.

Before the retrial, the prosecution filed a motion in limine

to exclude evidence that Brian Ransom, the father of Tyler

Ransom, had two convictions for child molestation. On

September 8, 1999, with Alvarez present, the trial court heard

argument on the motion. The trial court granted the motion,

finding that the evidence would be an improper attempt to

attack the credibility of Shari Ransom that would be “more

prejudicial than probative.”

During the retrial, Alvarez testified as follows upon

questioning from his own counsel:

“Q. When you moved over to Ashe Road, did you ever see

Brian Ransom over near your house on Ashe Road?

“A. Yes.

“Q. Had you ever given him that address?

“A. No.

“Q. Had you ever given Brian Ransom your phone

number?

“A. No.

“Q. Had you basically stopped seeing Brian Ransom?

“A. After I found out he had been convicted of child

molestation, yes, I did.

“Q. When you —

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“[Prosecutor]: Objection, your Honor. May we have a

sidebar?

“THE COURT: Sure.”

During the subsequent sidebar conference occurring in

chambers, the prosecutor objected that Alvarez “just bombed in

the fact that Brian Ransom was convicted of child molestation”

without provocation from counsel, “in total disregard of the

Court’s ruling” in order “to smear Mr. Ransom, because he knew

it wasn’t coming in any other way.” The prosecutor requested to

cross-examine Alvarez “about the fact that he was there, a

ruling was made by this Court that was not admissible, he knew

that was the ruling, and that he was deliberately violating the

Court’s order in order to get evidence in front of the jury to

smear Brian Ransom because it’s helpful to his defense.” The

court acknowledged, “Mr. Alvarez, who has been present during

all of these proceedings, certainly is and certainly should have

been aware on his own, plus, I’m sure his counsel has

admonished him, to not violate any of the rules that the Court

has imposed as it related to the in limine pretrial motions

regarding various aspects of this matter. He’s pretty ring wise

and I’m sure that he’s — he must be aware of the fact that he is

violating the Court’s order.” In order to cross-examine him on

the topic, the prosecutor offered to grant Alvarez immunity from

prosecution for contempt. The prosecutor argued the requested

cross-examination would show Alvarez’s “motive and bias and

his lying on the witness stand. [¶] It’s highly relevant to his

credibility, that he will basically stop at nothing, including

violating a court order, to do whatever he has to do get himself

off from this charge.” The defense expressed concern that the

cross-examination would go into attorney-client privilege

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matters. The prosecutor responded that he had no objection to

Alvarez being permitted time for his counsel to advise him about

any attorney-client privilege issues.

The prosecution requested that the trial court admonish

Alvarez immediately outside the presence of jury so that he

would not “do the same thing again.” The defense did not object

to such an admonition and the court agreed with the

prosecution’s request. Outside the presence of the jury, the trial

court then admonished Alvarez as follows:

“This Court made an order which has been violated by the

witness in his comments regarding Brian Ransom’s

history or record.

“And Mr. Alvarez, you were present — and I don’t want

any comments from you in this regard.

“You were present during the pretrial proceedings at all

times. You were certainly present when motions were

discussed and when this Court made rulings on motions,

and by making a reference to the child molest charges

against Brian Ransom, you have violated the Court’s

order, and all I can do today is to admonish you as it

relates to advising you not to make any further reference

whatsoever to that subject, or any of the other subjects

that were contained in our pretrial motions, in which this

Court, when you were present, and you were made aware

of by being present during those proceedings of this

Court’s orders as it related to those motions, and there’s

not to be any further comments in violation of any of those

pretrial orders that this Court made during that in limine

motion.

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“The People have comment?

“[Prosecutor]: Sounds pretty clear to me, your Honor.

“THE COURT: How about the defense, comments?

“[Defense counsel]: No, your Honor.”

On the following morning with Alvarez present, the

prosecution asked to cross-examine Alvarez on his violation of

the court order, contending it was relevant to his character for

truth and honesty under Evidence Code section 780, and also to

his credibility and character.

The trial court reiterated that “As I indicated yesterday

and I told the defendant this, and his counsel as well, that he

has violated a Court order, knowingly violated a court order, as

far as I’m concerned. And I don’t want this matter to become an

absolute sideshow.” The trial court warned that it would

consider removing Alvarez from the courtroom if there was any

further conduct of that nature.

Defense counsel argued that Alvarez’s violation of the

court order was unintentional. Defense counsel objected to the

prosecutor cross-examining Alvarez based on concerns the

prosecution might ask about privileged attorney-client matters.

The trial court noted the prosecutor had agreed to waive

any charges related to the contempt of court for the conduct, and

the court was inclined to accept that proposal. The trial court

granted the prosecution’s request to cross-examine Alvarez. The

prosecutor cross-examined Alvarez as follows:

“Q. You couldn’t, and then you felt it important to tell us

about the fact that Mr. Ransom has a child molestation

conviction, didn’t you?

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“A. That was one of her questions. I gave an answer. I

misunderstood the question.

“Q. You misunderstood her question to call for information

about a child molest conviction that Brian Ransom had,

right?

“A. I thought she was referring and asking me a question

why I had separated from Brian Ransom, in other words,

stopped seeing him, stopped working out with him,

stopped associating with him, and that was after he wrote

to me and said what you just — I’m not allowed to say that

anymore. I don’t know —

“Q. Well, let’s go over that. You’re not allowed — you were

not allowed to mention his child molestation conviction

ever in this trial, were you?

“A. It slipped. It was an accident.

“Q. You slipped. Because there was a specific order of the

Court, made at a pretrial motion in this case, that that was

ruled by the Court basically not to be admissible as

evidence in this trial. Isn’t that correct?

“A. That is correct.

“Q. And you were there when that ruling was made, right?

“A. Yes, I was.”

When the prosecutor asked Alvarez if he deliberately

violated the court ruling, Alvarez responded:

“A. Not deliberately. It was an accident.

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“Q. It was an accident.

“A. Yes, it was.

“Q. You were asked a question about when you were

separated, and it was an accident that you mentioned

something you’d been told you couldn’t bring up?

“A. I had misunderstood the question and I thought the

question was being asked of me why I left Brian and

terminated the relationship between me and him, and

that was — that was why. It was the truth. I even said it

in my statements.”

After asking about Alvarez’s interactions with Brian

Ransom, the prosecutor again returned to questioning about

Alvarez violating the court order:

“In this trial, even though you were told you couldn’t, you

deliberately violated a court order to bring in his child

molestation conviction because you wanted to dirty him up

in front of this jury. Isn’t that right, sir?

“A. That was an accident.

“Q. You’ll stop at nothing to get yourself off from these

charges, will you?

“A. No, sir. I —”

At this point, the defense counsel objected as

argumentative. After the court overruled the objection, the

prosecutor again asked Alvarez why he brought up Brian

Ransom’s child molestation conviction. Alvarez responded:

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“It was an accident. I misunderstood, [prosecutor]. I

misunderstood the question and I thought the question

was stating why, in fact, did I leave and terminate my

relationship with Brian Ransom, and I said because of

what you just said. I can’t say it anymore.”

The prosecutor then had Alvarez confirm the testimony

from the day before, before again asking:

“Q. What about that question don’t you understand — or

didn’t you understand yesterday when you felt it

necessary to tell us about that?

“A. I misunderstood the question and on accident I gave

that answer and I’m sorry.

“Q. Tell me what you misunderstood about the question

that you thought called for his child molestation

conviction.

“A. I just misunderstood the question.

“Q. Tell me what you misunderstood about the question

that called for it. You didn’t answer me, sir.

“A. Well

“Q. Tell me what you misunderstood in that question.”

Defense counsel again objected as argumentative and as

asked and answered. The court again overruled the objection.

Alvarez then again answered that he misunderstood the

question.

“ ‘Under the Sixth Amendment’s confrontation clause, a

defendant has the right to be personally present at any

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proceeding in which his appearance is necessary to prevent

“interference with [his] opportunity for effective

cross-examination.” [Citations.] The Fourteenth Amendment

guarantees the right to be present as a matter of due process at

any “stage . . . that is critical to [the] outcome” and where the

defendant’s “presence would contribute to the fairness of the

procedure.” ’ ” (People v. Ng (2022) 13 Cal.5th 448, 564–565

(Ng).) “Our state Constitution similarly provides a ‘ “right to be

personally present at critical proceedings.” ’ ” (People v. Perez

(2018) 4 Cal.5th 421, 438.) “We have previously held, however,

that neither the state nor federal Constitution, nor any

statutory requirement, provides a defendant with the right to be

present at hearings or discussions outside the jury’s presence ‘on

questions of law or other matters as to which his presence bears

no reasonable, substantial relation to his opportunity to defend

the charges against him.’ ” (Ng, at p. 565.) “ ‘An appellate court

applies the independent or de novo standard of review to a trial

court’s exclusion of a criminal defendant from trial, either in

whole or in part, insofar as the trial court’s decision entails a

measurement of the facts against the law.’ [Citation.]

Erroneous exclusion of the defendant is not structural error that

is reversible per se, but trial error that is reversible only if the

defendant proves prejudice.” (People v. Perry (2006) 38 Cal.4th

302, 311–312.)

Alvarez claims the in chambers sidebar conference

immediately after he violated the trial court’s in limine order

deprived him of his state and federal statutory and

constitutional rights to be present at all trial proceedings. His

rights to be personally present, however, were not violated

because the in chambers sidebar conference did not bear a

“ ‘ “reasonable and substantial relation to his full opportunity to

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defend against the charges.” ’ ” (People v. Virgil (2011)

51 Cal.4th 1210, 1234.) The in chambers sidebar conference was

held in response to Alvarez violating a court order and during

that time the court did not decide any matter that came before

the jury. The decision to permit the prosecutor to cross-examine

Alvarez regarding his violation of the court order occurred the

next day in Alvarez’s presence, after Alvarez had consulted his

counsel and after both counsel had made their arguments to the

court.

Alvarez further argues that his state and federal due

process rights were violated under People v. Ramirez (1979)

25 Cal.3d 260 when the trial court determined that he

intentionally violated the court order and decided to admonish

him but made this determination outside of Alvarez’s presence

and without giving him an opportunity to consult with counsel

or respond. The admonishment, however, was in direct response

to Alvarez violating a court order and was given outside the

jury’s presence. The trial court has inherent power to establish

order in its courtroom and “we will generally defer to the trial

court in determining when a defendant has been disruptive or

when further disruption may be reasonably anticipated.”

(People v. Jackson (1996) 13 Cal.4th 1164, 1211.) Furthermore,

since the admonishment occurred outside the jury’s presence, it

did not influence the jury’s determination and was not

“ ‘ “critical to [the] outcome.” ’ ” (Ng, supra, 13 Cal.5th at

p. 565.) While the court stated outside the jury’s presence that

Alvarez violated the court order, Alvarez was given an

opportunity to consult with a lawyer, and his counsel was

afforded the opportunity to fully argue the legal issues to the

judge before the trial court ruled that it would allow the

prosecution to cross-examine Alvarez.

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Alvarez responds that the appropriate remedy was instead

to strike his testimony and to admonish the jury to disregard it,

rather than to permit cross-examination as a sanction for his

violation of the court order. However, the cross-examination

was not imposed as a sanction for Alvarez’s violation, but

because his violation of the court orders bore on his credibility

as a witness. Furthermore, although striking the testimony and

admonishing the jury may have been alternative remedies

worthy of consideration, any claim to this alternate remedy is

forfeited because defense counsel did not object on these grounds

to the prosecution’s request to cross-examine Alvarez. Rather,

defense counsel only objected to the prosecutor cross-examining

Alvarez based on concerns the prosecution might ask about

privileged attorney-client matters. (See Ng, supra, 13 Cal.5th

at p. 551 [“ ‘A general objection to the admission or exclusion of

evidence, or one based on a different ground from that advanced

at trial, does not preserve the claim for appeal’ ”].) Though the

prosecutor stated that he was not seeking that the jury be

admonished as a remedy, Alvarez did not present to the court

admonishment in lieu of cross-examination as a remedy, and so

the court never considered this alternative on the record before

ruling.

Alvarez next claims that the prosecutor improperly

badgered and belittled him during the cross-examination in

violation of Alvarez’s state and federal constitutional rights.

Alvarez similarly claims that the court erred in overruling

objections to the prosecutor’s argumentative and prolonged

questioning. Specifically, during cross-examination Alvarez’s

counsel objected as argumentative to the prosecutor asking,

“You’ll stop at nothing to get yourself off from these charges, will

you?” The court then overruled this objection. Then after asking

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Alvarez to explain what he did not understand about the

question that led him to testify about Ransom’s child

molestation conviction, Alvarez replied that he “misunderstood

the question and on accident I gave that answer and I’m sorry.”

The prosecutor continued on this same line of questioning as

follows:

“[Prosecutor] Q. Tell me what you misunderstood about

the question that you thought called for his child

molestation conviction.

“[Alvarez] A. I just misunderstood the question.

“Q. Tell me what you misunderstood about the question

that called for it. You didn’t answer me, sir.

“A. Well

“Q. Tell me what you misunderstood in that question.

“[Defense counsel]: Your Honor, I’m going to object.

Argumentative and asked and answered.”

The court again overruled the objection. “ ‘A prosecutor is

permitted wide scope in the cross-examination of a criminal

defendant who elects to take the stand.’ ” (People v. Navarro

(2021) 12 Cal.5th 285, 333.) The prosecutor’s argumentative

and prolonged questioning was not a model of prosecutorial

conduct. Indeed, the prosecutor at one point withdrew a

comment, explaining that “it was inappropriate and I apologize.”

However, even assuming the court erred in overruling defense

counsel’s objections, any error was harmless. This is not a case

where, for example, the prosecutor elicited inadmissible

evidence during the questioning. (See Molano, supra, 7 Cal.5th

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at p. 674 [“A prosecutor commits misconduct by

‘ “ ‘ “intentionally elicit[ing] inadmissible testimony” ’ ” ’ ”].)

Instead, the scope of prosecutor’s questions was consistent with

the court’s order and Alvarez simply repeated the same general

answer about misunderstanding the question. The prosecutor’s

questioning on the violation of the court order was also

relatively short compared to the length of the trial. Finally, the

in chambers sidebar conference, the court’s admonition of

Alvarez, the subsequent hearing, and the prosecutor’s cross-

examination of Alvarez, did not individually or cumulatively

amount to a violation of Alvarez’s state or federal constitutional

rights.

F. Admission of Impeachment Evidence of Sexual

Assaults and Impersonating Law Enforcement

Alvarez argues the trial court abused its discretion under

Evidence Code section 352 in allowing the prosecution to

impeach him with testimony about his misdemeanor sexual

assault conviction of Melinda A., uncharged rape and false

imprisonment of Michelle E., and prior incidents of

impersonating correctional or law enforcement officers. He

further argues that the trial court prejudicially erred in failing

to accept his offer to stipulate that he had been convicted of a

misdemeanor involving moral turpitude. We disagree.

On May 10, 2000, after the defense asked what

impeachment evidence the prosecution would use if Alvarez

testified, the prosecutor represented that he would seek to

introduce evidence of Alvarez’s sexual assaults of Michelle E.,

Melinda A., and Borgsdorf in order to impeach Alvarez’s

credibility. The prosecutor argued that this evidence was

relevant to evaluating Alvarez’s credibility and its introduction

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would not result in an undue consumption of time because

Alvarez’s credibility versus Shari Ransom’s credibility was a

central issue in Tyler’s death. The prosecutor also stated that

he would seek to introduce evidence of incidents from 1992

where Alvarez misrepresented himself as a correctional or law

enforcement officer.

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