# People v. Alvarez

> California Supreme Court · August 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11122401

## Case

- **Court:** California Supreme Court
- **Decided:** August 18, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
variable

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11122401. Public record. Not legal advice.