People v. Nieves

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

SANDI DAWN NIEVES,

Defendant and Appellant.

S092410

Los Angeles County Superior Court

PA030589-01

May 3, 2021

Chief Justice Cantil-Sakauye authored the opinion of the

Court, in which Justices Corrigan, Liu, Cuéllar, Kruger,

Groban and Jenkins concurred.

PEOPLE v. NIEVES

S092410

Opinion of the Court by Cantil-Sakauye, C. J.

A jury convicted Sandi Dawn Nieves of the first degree

murder of her daughters Nikolet Amber Nieves, Rashel Hollie

Nieves, Kristl Dawn Folden, and Jaqlene Marie Folden (Pen.

Code, § 187),1 attempted murder of her son, F.D. (§§ 664, 187),

and arson (§ 451, subd. (b)). The jury found true the special

circumstance allegations that defendant committed multiple

murders, and that each murder was committed while lying in

wait and while engaged in the crime of arson. (§ 190.2, subds.

(a)(3), (a)(15), (a)(17).) Following the penalty phase of trial, the

jury returned a verdict of death. The trial court denied

defendant’s motion to modify the death penalty verdict and her

motion for a new trial (§ 190.4, subd. (e)) and sentenced her to

death. This appeal is automatic.

We affirm Nieves’s convictions but reverse her death

sentence due to the trial court’s misconduct.

I. BACKGROUND

A. Guilt Phase Evidence

Defendant called 911 to report a fire at her home in early

July 1998. When paramedics arrived, the fire had been out for

some time and defendant was covered in soot and sitting in the

living room with her 14-year-old son F.D. Defendant’s four

1

All further statutory references are to the Penal Code

unless otherwise indicated.

PEOPLE v. NIEVES

Opinion of the Court by Cantil-Sakauye, C. J.

daughters, ages 12, 11, 7, and 5, were lying on sleeping bags on

the kitchen floor and had all died of smoke inhalation. The oven

was open with burned items inside and gasoline had been

poured and lit in the hallway and bedrooms.

1. Relevant relationships

The father of F.D. and defendant’s two older daughters

was her first husband Fernando Nieves.2 Defendant had two

daughters with her second husband, David Folden, who

eventually adopted her three older children. Some years later,

as defendant was divorcing Folden, she had an affair with

Fernando. When he ended the affair, defendant sent Fernando

her will and life insurance policies and told him she wanted him

to have custody of all the children if she died. Later, unhappy

about the end of the affair, she sent an angry letter telling

Fernando he could no longer have contact with her or the

children.

Defendant began seeing Scott Volk several months before

the crime. They dated briefly before Volk ended the

relationship. Upset over the breakup, defendant threatened to

commit suicide; she sent the children to stay with their fathers

and wrote a suicide note but did not end her life. When she faced

eviction for unpaid rent, defendant moved to the town where

Volk lived and they eventually resumed a relationship. Volk

broke up with defendant again after learning she was pregnant.

2. Events surrounding the fire

Defendant had an abortion on a Thursday the week before

the fire. She told Volk’s mother that abortion had been out of

2

Given his shared surname with defendant, we will refer to

Fernando Nieves by his first name to avoid confusion.

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Opinion of the Court by Cantil-Sakauye, C. J.

the question until she began to think of suicide as a solution to

her circumstances. The weekend after the abortion, attorneys

served defendant with notice that Folden intended to revoke his

adoption and child support for her three older children. When

Fernando spoke to defendant afterward, she was “furious” at the

prospect of losing child support.

Defendant sent a note to Folden that was postmarked on

the day of the fire. She wrote: “Now you don’t have to support

any of us! FUCK YOU you are scum!” In a letter to Volk that

he received a few days after the fire, defendant wrote: “I was

always here for you — you just couldn’t see it. Now you never

will. [¶] I can’t live without you in my life . . . I have nothing

left you took it all[.]”

Defendant’s son F.D. testified that on the night of the fire

defendant declared they would have a “slumber party” in the

kitchen. F.D. did not want to sleep in the kitchen but defendant

insisted. Sometime in the night during the fire, defendant shook

F.D. and his sisters to wake them up. She told them to breathe

into their pillows and stay where they were because the fire

could be coming from outside. F.D. lost consciousness, but later

got up and could see his mother and sisters lying on the floor.

He lay down again and when he awoke it was light outside and

his mother was up but did not answer when he asked what had

happened.

3. Defense case

Defendant’s friends testified that defendant was active in

the Mormon Church and was a caring and devoted mother.

Defendant was very depressed after her abortion and regretted

it. Those who spoke to defendant just before the fire said she

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was upset about recent events but had plans for the immediate

future and did not seem to be thinking about suicide.

When defendant testified, the prosecutor asked about her

interview with a defense expert, whose notes showed that

defendant reported writing letters to Folden and Volk the night

of the fire and going to the post office to mail them at

approximately 1:00 a.m. When testifying, defendant said she

did not remember writing and mailing the letters or telling the

expert about it. She claimed that she lay down near her children

to warm her feet on the oven, woke up with no idea where the

fire was coming from, and did not remember anything else about

the night of the fire. She thought she dreamed about holding a

lighter and seeing flames, but when she saw scorched hair on

the back of her hand she realized it was not a dream.

Defendant said she had been hysterical about having an

abortion; subsequently, she started taking phentermine, a diet

medication, and the antidepressant Zoloft. A toxicology report

after the fire confirmed that defendant had phentermine in her

system but no screen had been done for Zoloft.

The experts who testified for the defense included two

psychiatrists, Dr. Philip Ney and Dr. Gordon Plotkin, and a

neuropsychologist, Dr. Lorie Humphrey.

Dr. Ney testified that a combination of Zoloft and

phentermine could cause serotonin syndrome, a condition

capable of triggering seizures. Defendant’s descriptions of the

night of the fire, and history of seizures in early childhood, were

consistent with having had a seizure. Dr. Ney explained that a

seizure could have induced a dissociative state, which would

cause a person to be “basically unconscious” even while engaged

in complex behaviors.

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Dr. Plotkin confirmed that Zoloft and phentermine could

trigger serotonin syndrome and seizures and result in delirium

that might cause a person to do “unusual” things. On cross-

examination, Dr. Plotkin conceded that actions such as writing

letters and driving to the post office were not consistent with

delirium. He testified that a seizure or serotonin syndrome

would not cause dissociation, as Dr. Ney had claimed.

Dr. Humphrey administered neuropsychological tests to

assess defendant for brain damage. Results showed some

impairment that made it harder for defendant to function under

stress, rendered her more impulsive, and affected her memory.

4. Rebuttal

A psychiatrist testifying for the prosecution disputed Dr.

Ney’s testimony that defendant was in a dissociative state on

the night of the fire: there was too much she remembered; her

memory was selective; and the diagnosis was inconsistent from

one examiner to another. Prosecution experts also included a

neurologist and a medical toxicologist, who found no evidence

that defendant experienced serotonin syndrome, a seizure, or

any type of unconscious state at the time of the fire. Two experts

on psychological testing also disputed Dr. Humphrey’s

conclusions. They found evidence that defendant tried to

manipulate the psychological testing and identified mistakes

and omissions throughout Dr. Humphrey’s report.

B. Penalty Phase Evidence

1. Prosecution case

Fernando Nieves, his wife Charlotte Nieves, and his

mother Minerva Serna gave victim impact statements on the

deaths of the children and the funeral. Fernando also recounted

how, within a month of the crimes, defendant tried to have F.D.

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removed from Fernando’s custody and sent to live with a

maternal relative in Indiana whom F.D. had never met. Serna

expressed her belief during cross-examination that defendant

was “vicious and malicious” in the way she had tried to break up

Fernando’s relationships and keep him from seeing his children.

David Folden described coping with his daughters’ deaths

and his resentment at defendant’s efforts to turn her older

children against him. He felt that one thing F.D. gained from

the deaths of his sisters was freedom — his mother had been so

controlling she would not even let the children play in the front

yard.

In addition to victim impact testimony, the prosecution

showed a video of defendant’s children playing in various

settings and displayed poster boards mounted with photographs

of the victims engaged in activities with family members.

2. Defense case

The defense presented one expert witness, Dr. Robert

Suiter, who evaluated defendant and Folden during their

divorce proceedings. He explained his recommendation from

that time, approximately a year before the crime, that defendant

was best suited to have custody of the children.

Character witnesses included a number of defendant’s

friends, defendant’s maternal aunt, stepfather, and a bishop

from defendant’s church. They described defendant’s mother as

verbally and physically abusive during defendant’s childhood

and noted that defendant had experienced previous periods of

severe depression. Defendant’s life revolved around her

children and she was an active and loving mother. The

witnesses believed defendant could not have been in her right

mind if she killed her children; they concluded she must have

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been very depressed and viewed her as a “good mother who lost

touch with reality.”

A chaplain from the county jail testified concerning

defendant’s remorse and her desire to repair her relationship

with her son.

3. Rebuttal

The prosecution introduced a letter to defendant from one

of her daughters who threatened to run away and expressed

feeling ignored and unloved. Testimony from a neighbor and

staff from the victims’ school characterized defendant as a

controlling, overbearing, and manipulative parent whose

children seemed to fear her. Neighbors who knew defendant

and Folden during their divorce concluded that defendant lied

about the relationship and tried to turn her children against

Folden. Defendant seemed extremely angry, especially

regarding Folden.

II. DISCUSSION

A. Jury Selection

Defendant contends the trial court erred by conducting

voir dire that was inadequate to reveal prospective jurors’

disqualifying attitudes about the death penalty in violation of

her Fifth, Sixth, Eighth, and Fourteenth Amendment rights.

Specifically, defendant claims the jury questionnaire was

deficient because it omitted defense questions about the impact

that evidence concerning young victims would have on

prospective jurors’ decisionmaking, and it used questions that

were too confusing to elicit meaningful information about

prospective jurors’ views. Defendant also contends the trial

court’s “rushed” voir dire and restrictions on defense

questioning was inadequate to inform defendant’s exercise of

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challenges for cause and use of peremptory challenges. We find

no merit to these claims.

1. Background

The trial court prepared a jury questionnaire that

incorporated proposals from defense and prosecution drafts.

The defense proposed amendments to the court’s draft

questionnaire, addressing case-specific issues such as the

impact of unpleasant photographs and defendant’s abortion.

The defense also requested additional questions about whether

a crime involving four young victims would cause prospective

jurors to vote for the death penalty regardless of mitigating

evidence. The trial court incorporated most of the defense

amendments but rejected additional questions about the age of

the victims, which was instead referenced in a preamble to

questions about the death penalty.

The trial court rejected a defense motion to include two

revised questions referencing the age of the victims but agreed

to defense counsel’s alternate request to have bolded references

to the victims’ ages appear in close proximity to particular

questions. The defense then expressed agreement with two

bolded references to the victims’ ages and their location in the

questionnaire.

The final jury questionnaire contained eleven death

penalty questions. Question Nos. 60 to 63 asked if prospective

jurors felt the death penalty was used too much or too little, had

changed their view on the death penalty over the years, or

belonged to groups that advocated increased use or abolition of

the death penalty. After question No. 63, the questionnaire

explained the guilt and penalty phases of a capital trial,

informed prospective jurors concerning the special

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circumstances defendant faced, and explained the jury’s

responsibility to determine the penalty. The guidance

concluded in bolded print set apart from the preceding

paragraph: “Also assume for the purposes of questions 64–

67, that the evidence may tend to show that the four

deceased victims were the children of the defendant and

ranged in age from age five to age twelve.”

Question Nos. 64 to 66 asked whether prospective jurors

would, because of their views on capital punishment, refuse to

find the defendant guilty of first degree murder or special

circumstances to avoid deliberating on a penalty phase, or if

they would automatically vote for life without parole without

considering any aggravating or mitigating factors. Appearing a

second time in bold print directly before question No. 67 was the

instruction: “Assume for purposes of question 67 that the

evidence may tend to show that the four deceased

victims were the children of the defendant and ranged in

age from age five to age twelve.”

Question No. 67 asked if prospective jurors would

automatically vote for the death penalty: “Assume for the sake

of this question only, that the jury has found the defendant

guilty of first degree murder and has found one or more of the

special circumstances true and that you are in the penalty

phase. Would you, because of any views that you may have

concerning capital punishment, automatically refuse to vote in

favor of the penalty of life imprisonment without the possibility

of parole and automatically vote for a penalty of death, without

considering any of the evidence, or any of the aggravating and

mitigating factors (on which you will be instructed) regarding

the facts of the crime and the background and character of the

defendant?”

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The remaining questions asked prospective jurors:

whether those who would automatically vote for a particular

penalty would change their approach if ordered by the court to

consider and weigh the evidence and the aggravating and

mitigating factors; whether they could set aside their feelings

about what the law ought to be and follow the law as instructed

by the court; and what they understood the meaning of life in

prison without the possibility of parole to be.

The jury questionnaire instructed prospective jurors to

mark questions they did not understand with a question mark

or by writing “I don’t understand” and informed them that the

trial court and counsel would question them about any

difficulties they had filling out the questionnaire. Before

prospective jurors filled out the questionnaire, the trial court

orally advised them to mark the questionnaire when they did

not understand something or wanted to answer in a confidential

manner, provided them a written summary of the charges,

explained trial court procedures for death penalty cases in

California and the jury’s role in determining the penalty, and

verbally reiterated that the charges included the murder of

children.

For oral voir dire, the trial court required the parties to

submit any proposed followup questions in writing, and the trial

court then determined whether to include them in the oral

examination. The court did not intend to question prospective

jurors about their views on the death penalty when no basis for

disqualification appeared in their questionnaires.

The trial court identified for individual questioning

prospective jurors whose questionnaire answers appeared

facially disqualifying or raised questions about death

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qualification. Defense counsel identified additional prospective

jurors for questioning based on their questionnaires. The trial

court then individually questioned these prospective jurors in

the jury box. The defense participated in questioning a majority

of the prospective jurors, though there were some for whom the

court completed questioning without defense input, and others

the defense did not question, although offered an opportunity to

do so.

During selection of the sitting jury, the trial court excused

nine prospective jurors for cause based on their views about the

death penalty, five who would always vote for the death penalty,

and four who would always vote against it. The court also

excused some prospective alternate jurors for cause, and no

alternate jurors ultimately deliberated in defendant’s trial.3

The defense used 13 of its 20 peremptory challenges.

2. Analysis

Prospective jurors are disqualified from serving on a

capital jury when their views about capital punishment would

prevent or substantially impair the performance of their duties

in accordance with their instructions and oath. (Wainwright v.

Witt (1985) 469 U.S. 412, 424 (Witt).) This standard does not

require bias to be “ ‘unmistakably clear’ ” and is met when “the

trial judge is left with the definite impression that a prospective

juror would be unable to faithfully and impartially apply the

law.” (Id. at pp. 425–426.) A trial court’s ruling in this regard

is entitled to deference given its ability to consider demeanor, “a

3

Any error in excluding a prospective alternate juror for his

or her views on capital punishment is harmless beyond a

reasonable doubt when no alternate juror participates in jury

deliberations. (People v. Jones (2012) 54 Cal.4th 1, 44–45.)

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factor of critical importance in assessing the attitude and

qualifications of potential jurors.” (Uttecht v. Brown (2007) 551

U.S. 1, 9.)

Under the two-part inquiry of Lockhart v. McCree (1986)

476 U.S. 162, it is important to consider not only whether a

prospective juror’s views on capital punishment would

“generally lead to an automatic vote, one way or the other,” but

also “the possibility that such a juror might be able to set aside

those views and fairly consider both sentencing alternatives, as

the law requires.” (People v. Leon (2015) 61 Cal.4th 569, 592

(Leon); see also Lockhart, at p. 176.) “A juror might find it very

difficult to vote to impose the death penalty, and yet such a

juror’s performance still would not be substantially impaired

under Witt, unless he or she were unwilling or unable to follow

the trial court’s instructions.” (People v. Stewart (2004)

33 Cal.4th 425, 447, italics omitted; People v. Armstrong (2019)

6 Cal.5th 735, 764.)

To ensure meaningful and reliable death-qualifying voir

dire, “both the [trial] court and counsel ‘must have sufficient

information regarding the prospective juror’s state of mind,’. . .

[citation],” though the trial court retains “broad discretion over

the number and nature of questions about the death penalty.”

(People v. Stitely (2005) 35 Cal.4th 514, 540; see also People v.

Amezcua and Flores (2019) 6 Cal.5th 886, 901.) Ultimately,

death-qualification voir dire “must not be so abstract that it fails

to identify those jurors whose death penalty views would

prevent or substantially impair the performance of their duties

as jurors in the case being tried” and “it must not be so specific

that it requires the prospective jurors to prejudge the penalty

issue based on a summary of the mitigating and aggravating

evidence likely to be presented.” (People v. Cash (2002)

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28 Cal.4th 703, 721–722.) In striking this balance, the trial

court may not categorically deny the defense an opportunity to

inform prospective jurors of case-specific factors that could

invariably cause them to vote for death. (People v. Carasi (2008)

44 Cal.4th 1263, 1287 (Carasi); Cash, at p. 721.) Unless voir

dire is so inadequate as to render the ensuing trial

fundamentally unfair, it is not a basis for reversal. (People v.

Salazar (2016) 63 Cal.4th 214, 235.)

a. Adequacy of the juror questionnaire

Defendant claims the questionnaire should have included

specific inquiries about the impact of young victims on

prospective jurors’ decisionmaking and more questions about

the death penalty in general. She also argues that the questions

posed were too confusing to uncover bias.

Preliminarily, the People argue that defense counsel’s

willingness to do away with or significantly limit use of a jury

questionnaire at trial constitutes invited error. Although

defense counsel did agree to dispose of the questionnaire, the

trial court rejected this approach and proceeded to create a

questionnaire with the input of both parties. The record

therefore does not establish that “ ‘defense counsel intentionally

caused the trial court to err,’ ” and no invited error appears.

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)

The People also contend that defendant forfeited claimed

inadequacies in the jury questionnaire by failing to object to

them. Defendant argues that the defense continued objecting to

the questionnaire and attempted to question jurors about the

effect of young victims on their decisionmaking. In this context,

defense counsel’s concession to using the questionnaire after his

efforts to limit and amend it failed does not forfeit defendant’s

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claim that the trial court erred in omitting proposed defense

questions. (People v. Landry (2016) 2 Cal.5th 52, 83.)

A trial court’s discretion regarding the scope of voir dire

extends to the wording of the questionnaire. (Leon, supra,

61 Cal.4th at p. 586.) Here, “[w]here the court exercises its

discretion to exclude certain questions from the questionnaire,

we will affirm unless the voir dire was so inadequate that the

resulting trial was fundamentally unfair.” (Ibid.) We find no

such inadequacy. The final questionnaire conveyed sufficient

case-specific information, twice instructing prospective jurors to

consider the number and age of the victims when answering

death-qualification questions — facts the trial court also

highlighted in oral instructions regarding the questionnaire.

After receiving these case-specific factors before death

qualification, it is “logical to assume” that when prospective

jurors are asked whether they would automatically vote for life

or death, “they have answered the question with those case-

specific factors in mind.” (Carasi, supra, 44 Cal.4th at p. 1287;

see also Leon, at p. 587.)

Defendant argues that the questionnaire did not elicit

sufficient information about death qualification, comparing the

number and types of questions in her questionnaire to more

extensive model questioning endorsed by the Judicial Council

after defendant’s trial. In People v. Covarrubias (2016) 1 Cal.5th

838, we addressed challenges to excusals for cause based on

written questions that were identical to question Nos. 66

through 69 on defendant’s jury questionnaire. (Id. at pp. 861–

862.) There, we determined that the trial court’s handling of

ambiguous responses to the questions was error but recognized

that the questions themselves “called for responses that could

adequately inform the trial court whether a prospective juror

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was substantially impaired within the meaning of Witt.” (Id. at

p. 864.) Although subsequent formulations may have expanded

upon these questions, we accept, as we did in Covarrubias, that

they were adequate for assessing prospective jurors’ views about

the death penalty.

Defendant also contends that the death qualification

questions were “practically unintelligible,” citing problems such

as compound questions, confusing language, and “legalese”

above the education level of most prospective jurors. The People

are correct that defendant did not object to the wording of

questions as compound or confusing, and any claimed

inadequacies on that basis have thus been forfeited. Even if

preserved, the claim would not establish error.

Defendant cites United States v. Littlejohn (D.C. Cir. 2007)

489 F.3d 1335, 1341–1342, and Cabe v. Superior Court (1998)

63 Cal.App.4th 732, 742, in support of her argument that the

questionnaire was confusing; however, problems with compound

questions addressed in those cases were not present in

defendant’s questionnaire.

Defendant also points to prospective jurors who left death-

qualification questions blank or could not answer questions as

an indication that the questionnaire must have caused

confusion. The examples defendant cites are unconvincing.

Some of the prospective jurors who failed to answer death-

penalty questions had trouble throughout the questionnaire,

reflecting a broader difficulty not specific to the death-

qualification questions. One prospective juror who left some

questions blank responded to other, more complex, questions to

indicate that she would automatically vote for the death

penalty, a position she reiterated in oral voir dire. Another

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prospective juror did not answer questions “yes” or “no” as

prompted but gave narrative responses reflecting her

uncertainty. The record thus reflects difficulties that, “ ‘ “[g]iven

the juror’s probable unfamiliarity with the complexity of the

law, coupled with the stress and anxiety of being a prospective

juror in a capital case, . . . should be expected.” ’ ” (People v.

Wilson (2008) 44 Cal.4th 758, 779.)

The questionnaire also accounted for the fact that some

prospective jurors might find it confusing and instructed them

to mark questions they did not understand so that the trial court

and counsel could address them in individual voir dire. The

record shows that whether marked or not, the trial court

individually questioned prospective jurors about missing,

incomplete, or equivocal responses, an appropriate approach to

an adequate voir dire. (People v. Robinson (2005) 37 Cal.4th

592, 618.)

Defendant also asserts that the wording of question

No. 67, which asked whether prospective jurors would

“automatically vote for a penalty of death, without considering

any of the evidence,” was inadequate to identify unqualified,

death-oriented jurors. Defendant argues that the disqualifying

condition in question No. 67 — voting without “considering”

evidence — was more stringent than the appropriate standard

of automatically voting “regardless of” the evidence. This claim

of deficiency is not persuasive.

The standard enunciated in Witt recognizes that “[a] juror

who will automatically vote for the death penalty in every case

will fail in good faith to consider the evidence of aggravating and

mitigating circumstances as the instructions require him to do.”

(Morgan v. Illinois (1992) 504 U.S. 719, 729, italics added.)

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Although the wording used in defendant’s questionnaire is

consistent with this standard, and past model juror

questionnaires in California have relied on the same phrase

(People v. Stewart, supra, 33 Cal.4th at p. 447, fn. 12), the high

court has also explained that “[r]elevant voir dire questions

addressed to [death qualification] need not be framed

exclusively” by reference to “a particular verb” (Witt, supra, 469

U.S. at pp. 433–434). The trial court’s questionnaire here

adequately reflected the proper standard.

b. Adequacy of oral voir dire

Defendant contends that the trial court’s “rushed” voir

dire denied the defense an opportunity to learn about

prospective jurors’ potential biases, prevented the selection of

an impartial jury, and resulted in an inadequate record

concerning the ensuing grant or denial of challenges for cause.

Defendant also contends the trial court erred by denying defense

efforts to ask direct questions about whether prospective jurors’

ability to vote for a life or death sentence would be affected by

crimes involving a mother’s murder of her four children. We

reject these claims.

As evidence of a generally “cursory” voir dire, defendant

points to the length of death qualification, which took somewhat

less than two days. We have determined that death

qualification lasting “approximately three hours and 20

minutes” was not “unduly rapid or otherwise improper” where

the record showed that the trial court was “merely efficient.”

(People v. Robinson, supra, 37 Cal.4th at p. 618.) Nothing in the

length of the death qualification of defendant’s jury, standing

alone, points to inadequate voir dire.

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Defendant asserts the trial court’s limitations on defense

questioning during voir dire prevented adequate examination of

prospective jurors’ views. In one instance defendant cites, the

trial court found Prospective Juror No. 7166’s written answers

concerning the death penalty questions sufficient for death

qualification where he responded unequivocally that he would

not automatically vote for life or death, his other answers were

not disqualifying, and his only written remark was that the

“punishment should fit the crime.” The court denied defense

counsel’s request to ask the prospective juror whether the

nature of the crimes in defendant’s case would cause him to

automatically vote for the death penalty.

We have observed that “parsimony in death qualification

voir dire is not commendable.” (Leon, supra, 61 Cal.4th at

p. 589; see also People v. Cash, supra, 28 Cal.4th at p. 721.)4

Recognizing, however, that “the trial court has broad discretion

over the number and nature of questions about the death

penalty,” we have found no error where courts have relied

heavily on general questions tracking death qualification

standards and when “the court and/or counsel asked additional

questions to clarify ambiguous responses.” (People v. Stitely,

supra, 35 Cal.4th at p. 540.) Here, the prospective juror’s

responses to adequate written questions were not ambiguous

and the questionnaire twice instructed him to consider the

4

At the time of defendant’s trial, Code of Civil Procedure

former section 223 dictated voir dire be conducted by the trial

court, with supplemental questioning from the parties allowed

upon a showing of good cause; later amendments to the statute

allowed “each party an expanded but not unlimited right to

examine prospective jurors through direct oral questioning.”

(People v. Salazar, supra, 63 Cal.4th at p. 233, fn. 10.)

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nature of the charged crimes when answering. The trial court

did not abuse its discretion by declining to repeat questions in

oral voir dire that had already been answered. “Counsel are

entitled to ascertain a prospective juror’s true views on the

death penalty. Once those views have been made clear, the

court is not obliged to question them further.” (People v.

Salazar, supra, 63 Cal.4th at p. 236.)

Defendant claims the trial court also prevented adequate

voir dire of Prospective Juror Nos. 3801 and 8318, who gave

equivocal answers. Defendant relies on United States v.

Gonzalez (9th Cir. 2000) 214 F.3d 1109, 1114, to support her

argument that equivocal answers are not sufficient to dispel

potential bias. This federal decision is not binding on us and

does not relate to death qualification; it addressed standards for

reviewing bias in a non-capital case under circumstances not

present here.

A trial court’s ruling on a prospective juror’s death

qualification “ ‘may be upheld even in the absence of clear

statements from the juror that he or she is impaired because

“many veniremen simply cannot be asked enough questions to

reach the point where their bias has been made ‘unmistakably

clear.’ ” ’ ” (People v. Wilson, supra, 44 Cal.4th at p. 779.)

“ ‘ “ ‘On review, if the juror’s statements are equivocal or

conflicting, the trial court’s determination of the juror’s state of

mind is binding.’ ” ’ ” (People v. Winbush (2017) 2 Cal.5th 402,

429; see id. at pp. 427–428.) The trial court did not limit defense

questioning of Prospective Juror No. 8318, who indicated that

she would have difficulty imposing the death penalty. The trial

court also allowed defense questioning of Prospective Juror

No. 3801, who was not sure she could consider a life sentence

but would “try.” We find the trial court’s voir dire in these

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instances adequate and defer to its determination of the

prospective jurors’ qualifications, as we must.

Finally, defendant argues that voir dire was inadequate

because the trial court was unwilling to allow additional oral

questioning regarding prospective jurors’ views in light of the

number and age of the victims. We reject this claim. The trial

court orally advised prospective jurors of the number and age of

the victims and the questionnaire itself prominently conveyed

that information. Accordingly, the court could properly assume

the jurors had those factors in mind when asked, either orally

or in writing, whether they would automatically vote for life or

death. (Carasi, supra, 44 Cal.4th at p. 1287.)

The record demonstrates that voir dire in defendant’s case

was not so cursory that it constituted an abuse of discretion or

deprived her of a fundamentally fair trial. The trial court

properly “err[ed] on the side of caution” to question prospective

jurors whose responses to the written questionnaire were

ambiguous or potentially disqualifying. (People v. Wilson,

supra, 44 Cal.4th at p. 790.)

B. Guilt Phase Issues

1. Access to impeachment evidence

Defendant contends the trial court erred by refusing to

enforce defense subpoenas for records and witnesses related to

her son’s statements and mental health following the fire. She

argues the trial court’s errors violated Evidence Code section

912, as well as her Sixth and Fourteenth Amendment rights.

We conclude there was no error.

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a. Background

Before trial, defendant issued subpoenas for F.D.’s mental

health records to a Dr. Jacobs, and to county social workers who

interviewed F.D. and his father after the fire.

During a hearing in which he asserted F.D.’s privilege to

prevent disclosure of records from Dr. Jacobs, Fernando Nieves

testified that he took F.D. and other family members to the

doctor for therapy following the deaths of F.D.’s sisters. When

defendant petitioned to have F.D. removed from Fernando’s

custody, Dr. Jacobs wrote a letter to the dependency court on

behalf of Fernando; the letter provided brief observations about

F.D.’s adjustment to living with Fernando’s family and noted

F.D.’s desire remain with them. By the time of defendant’s trial,

Fernando had been named F.D.’s legal guardian.

The trial court rejected defendant’s argument that

Fernando waived F.D.’s psychotherapist-patient privilege by

having Dr. Jacobs submit a letter to the dependency court and

found no defense interests sufficient to override the privilege.

F.D. later testified in the prosecution’s case-in-chief and was

excused subject to recall.

When counsel for the social workers appeared to oppose

defense counsel’s subpoena for their records, the trial court

ruled that section 827 of the Welfare and Institutions Code

required defendant to petition the juvenile court for access to the

records. The defense filed a petition with the juvenile court a

few days later. When the social workers later responded to

subpoenas to testify for the defense, they again asserted state

confidentiality protections. Defense counsel provided the trial

court with a copy of the social workers’ report but declined to

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elaborate on how their testimony was relevant, and the trial

court sustained the claims of confidentiality.

Later in the trial, defense counsel announced that the

juvenile court had granted his petition for access to records from

the social workers and Dr. Jacobs. When the defense sought to

impeach the rebuttal testimony of Fernando Nieves with

statements from the social workers’ report, the trial court

sustained the prosecution objection that the witness’ prior

statements could not be used because they did not qualify as

inconsistent statements.

b. Analysis

A patient has a privilege to refuse to disclose, and to

prevent another from disclosing, a confidential communication

between the patient and his or her psychotherapist. (Evid.

Code, §§ 1014, 1012.) Waiver of the privilege occurs when the

holder of the privilege has disclosed a significant part of the

communication or consented to disclosure. (Evid. Code, § 912,

subd. (a).) The “ ‘holder of the privilege’ ” is the patient, or a

guardian or conservator of the patient. (Evid. Code, § 1013.)

A person invoking the psychotherapist-patient privilege has the

initial burden of showing that the privilege is presumptively

applicable. The burden then shifts to the party seeking

disclosure to establish that the privilege is inapplicable. (People

v. Gonzales (2013) 56 Cal.4th 353, 372.) The psychotherapist-

patient privilege is to be liberally construed in favor of the

patient. (People v. Wharton (1991) 53 Cal.3d 522, 554.)

Section 827 of the Welfare and Institutions Code contains

protections concerning the confidentiality of juvenile records,

whether or not they are covered by other state or federal

privileges, and vests the juvenile court with exclusive authority

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to determine the extent to which those records may be released

to third parties. (Welf. & Inst. Code, § 827; T.N.G. v. Superior

Court (1971) 4 Cal.3d 767, 778.)

When a defendant proposes to impeach a critical

prosecution witness with privileged information, the trial court

may be called upon to balance the defendant’s rights under the

Sixth Amendment to access such material at trial against the

state policies supporting the privilege. (Davis v. Alaska (1974)

415 U.S. 308, 319; People v. Hammon (1997) 15 Cal.4th 1117,

1127 (Hammon).) In Hammon, we concluded that a Sixth

Amendment right to access protected information does not

extend to pretrial disclosure, given the possibility that

subsequent developments may eliminate the justification for

invading a patient’s statutory privilege. (Ibid.)

Defendant concedes that the Sixth Amendment does not

confer a right to discover privileged psychiatric records before

trial. (Hammon, supra, 15 Cal.4th at p. 1128.) She argues

instead that F.D.’s father waived the privilege for family

therapy records when he asked Dr. Jacobs to submit a letter in

connection with dependency proceedings. The trial court did not

err in sustaining the psychotherapist-patient privilege with

regard to these records.

The letter from Dr. Jacobs to the dependency court did not

disclose a “significant part” of communications between F.D.

and his doctors that would constitute waiver. (Evid. Code, § 912,

subd. (a).) But even if there had been a significant disclosure of

protected communications, we would not conclude on this record

that F.D. or his legal guardian consented to it. When, as here,

a guardian ad litem is required for dependency proceedings (In

re Josiah Z. (2005) 36 Cal.4th 664, 679), we would not assume

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that Fernando Nieves, or defendant, could legally waive the

psychotherapist-patient privilege during their custody dispute

(see In re Cole C. (2009) 174 Cal.App.4th 900, 911, fn. 3), and

disclosure by Dr. Jacobs did not otherwise constitute waiver

(Roberts v. Superior Court (1973) 9 Cal.3d 330, 341).

Defendant contends the trial court violated her Sixth

Amendment and due process rights by preventing her from

impeaching F.D. with records or testimony from the social

workers. Defendant failed to preserve these constitutional

claims. They also lack merit.

Defendant argues that the trial court should have

reviewed the social workers’ records to determine their

materiality to the defense, citing Pennsylvania v. Ritchie (1987)

480 U.S. 39, 58–60 and People v. Webb (1993) 6 Cal. 4th 494,

517. In Webb, we recognized that due process requires the

government to provide a defendant with material exculpatory

evidence in its possession even when it is subject to a state

privacy privilege. (Id. at p. 518.) Those principles do not apply

here, however, where defendant already had the social workers’

report. We discern no error in the trial court’s ruling “when

defendant made no offer of proof at trial explaining why the

witness[es] should have been permitted to [testify].” (People v.

Lightsey (2012) 54 Cal.4th 668, 727, fn. omitted; see also Evid.

Code, § 354 (a); People v. Case (2018) 5 Cal.5th 1, 44–45.)

Defendant argues that the trial court continued to sustain

confidentiality protections after the juvenile court granted

defendant’s petition for disclosure of the social workers’ report,

denying her the opportunity to introduce impeachment

evidence. The record does not bear this out. After the juvenile

court’s ruling, defendant did not try to use the report to impeach

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F.D. at all, though he was still subject to recall. (People v.

Johnson (2018) 6 Cal.5th 541, 583 [inconsistent out-of-court

statement admissible when witness is subject to recall].) The

defense did attempt to use the report to impeach Fernando

Nieves, but rather than resolving that effort based on

confidentiality protections, the trial court ruled that the prior

statements were not inconsistent.

We also reject defendant’s claim that the trial court erred

by allowing the prosecution to address questions of privilege

related to F.D.’s records. We have held that a trial court may

entertain argument from the opposing party on third party

discovery and that a prosecutor’s submission of argument in

such a matter — as occurred in defendant’s trial — is not

improper. (People v. Superior Court (Humberto S.) (2008)

43 Cal.4th 737, 750–754; see also Facebook, Inc. v. Superior

Court (Touchstone) (2020) 10 Cal.5th 329, 358 [reiterating

legitimate role of prosecution concerning third party discovery

disputes].)

Defendant argues that, as a witness for the prosecution,

Fernando Nieves had a conflict of interest that should have

disqualified him from asserting a privilege on behalf of F.D.

Defendant did not raise this issue at trial and thus forfeits it on

appeal. Defendant also argues that she should have been

granted access to F.D.’s records based on her status as his

parent. (Fam. Code, § 3025 [non-custodial parents may access

minor child’s records].) We have no need to examine this claim

when the record shows that defendant either obtained the

records she sought or was entitled to access them by order of the

juvenile court.

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2. Compelled psychological testing of defendant

Defendant contends the trial court erred by requiring her

to submit to psychological examination by prosecution experts

and rejecting her request to have a defense expert attend that

examination. Defendant argues that after she declined to

submit to the examination, the trial court further erred by

instructing the jury concerning her refusal and by allowing the

prosecution to comment on it. We reject each of these claims.

a. Background

Before trial, the defense conducted evaluations of

defendant and provided the prosecution with reports from six

defense experts. The trial court executed orders pursuant to

Evidence Code section 730 authorizing the appointment of four

prosecution experts to interview defendant, analyze test results

from defense experts, and provide other assistance to the

prosecution.

When the parties addressed defendant’s examination by

prosecution experts, defendant agreed to submit to the

examinations provided that a defense expert could be present to

observe them. The trial court held a hearing to address the

implications of having a defense representative present during

prosecution interviews and concluded that such presence would

be unnecessary, inappropriate, and might invalidate

prosecution expert results.

Defense counsel did not object to the examination by

prosecution experts but continued to argue for the presence of a

defense expert. The trial court reiterated its order that

defendant was required to submit to interviews without defense

monitoring at those interviews and ultimately found that the

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continued defense objections constituted a refusal by defendant

to be examined.

The prosecution later proposed an instruction regarding

defendant’s refusal: if jurors found defendant had refused to

submit to prosecution examinations, they could consider that as

consciousness of any required mental state. The trial court said

that if the prosecution wanted such an instruction, the jury

would need to hear evidence of refusal, which could be

established through testifying witnesses.

Over objections, a prosecution expert testified that he had

been told that defendant refused to be evaluated by him. On

cross-examination, the defense attempted to ask the expert

whether he would have any concerns about the conditions

defendant requested for examination by a prosecution expert.

The trial court sustained objections to this questioning and

admonished the jury: “I am going to tell the jury at this point

that the defendant — when the defendant submits their mental

state as an issue in the case, the defendant must submit to

examination by the prosecution experts without any conditions.

That was not forthcoming this this case.” Two more prosecution

experts then testified that defendant refused their requests for

an examination.

Ultimately, the trial court rejected instructions submitted

by the defense and prosecution seeking to address defendant’s

response to examinations by prosecution experts and concluded

that the issue was a matter for argument to the jury. During

closing argument, the prosecution repeated the court’s

comments that defendant was required to submit to

examination by prosecution experts and, without objection,

argued that her refusal could be viewed as an attempt to

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suppress or conceal evidence, affect the weight given to defense

expert opinions, and undermine the validity of defense claims.

b. Analysis

In Verdin v. Superior Court (2008) 43 Cal.4th 1096

(Verdin), we held that courts may not compel a defendant’s

mental examination by a prosecution expert unless “authorized

by some . . . ‘express statutory provision[]’ (§1054, subd. (e).)”

(Id. at p. 1109.) This ruling applies retroactively to defendant’s

trial in 2000. (People v. Clark (2011) 52 Cal.4th 856, 939.) “We

have made clear that even in cases governed by Verdin, trial

courts had the power to order defendants to submit to a

psychological examination by a court-appointed expert pursuant

to Evidence Code section 730.” (People v. Banks (2014)

59 Cal.4th 1113, 1193, italics omitted.)

Defendant claims the trial court did not have authority

under Penal Code section 1054 to order her examination by

prosecution experts. The record shows, however, that the trial

court exercised its authority under Evidence Code section 730,

an appropriate basis for compelling her psychological

examination. (People v. Banks, supra, 59 Cal.4th at p. 1193.)

Defendant insists the trial court also erred by requiring

her to submit to an “unconditional” examination, one without a

defense representative present. We have recognized that the

presence of defense counsel or other third parties during a court-

ordered psychological examination may invalidate its results (In

re Spencer (1965) 63 Cal.2d 400, 411; Edwards v. Superior Court

(1976) 16 Cal.3d 905, 911) and have concluded that the presence

of counsel at such an examination is not constitutionally

required (In re Spencer, at p. 412; People v. Ledesma (2006)

39 Cal.4th 641, 698 (Ledesma)). The trial court therefore did not

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abuse its discretion by rejecting defendant’s request to have a

defense expert present.

We also reject defendant’s argument that the trial court’s

admonition and the prosecutors’ arguments violated her

constitutional rights and her rights under Evidence Code

section 913.5 Once defendant placed her mental state at issue,

she waived her Fifth and Sixth Amendment rights to object to

the prosecution examinations. (People v. Gonzales (2011)

51 Cal.4th 894, 929.) Subsequent testimony about defendant’s

refusal to cooperate did not violate those rights (People v.

McPeters (1992) 2 Cal.4th 1148, 1190), and the jury could

properly consider the refusal (People v. Carpenter (1997)

15 Cal.4th 312, 413).

Defendant argues the trial court erred by failing to

instruct the jury that her refusal was insufficient to establish

guilt, and that this had the effect of lessening the prosecution’s

burden. Defendant forfeited this claim by failing to request a

clarifying instruction at trial (People v. Guerra (2006) 37 Cal.4th

1067, 1134), but it would nonetheless fail on the merits. The

trial court properly instructed the jury concerning the

reasonable doubt standard and there is no reasonable likelihood

the jury would have interpreted the trial court’s limited

comment to indicate that defendant’s refusal to submit to

examination was sufficient to prove her guilt. (Ibid.)

Defendant also claims that the trial court erred by

allowing the prosecution to reference defendant’s refusal during

5

Evidence Code section 913 provides that no comment can

be made or inference drawn from the invocation of a privilege

not to testify or to disclose any matter. (Evid. Code, § 913, subd.

(a).)

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closing argument. This argument is forfeited by defendant’s

failure to object at trial (People v. Gamache (2010) 48 Cal.4th

347, 372), and in any event it lacks merit. The prosecutor

argued that evidence of defendant’s refusal was relevant to the

weight of defense expert testimony, a consideration we have

recognized as proper. (People v. Carpenter, supra, 15 Cal.4th at

p. 412.) Defendant cites no authority for her view that she did

not personally refuse to be examined, and she offers no reason

to dispel the general rule that absent complaint at trial, the acts

of her counsel are imputed to her. (People v. Marsden (1970)

2 Cal.3d 118, 125.)

3. Scope of expert testimony

Defendant contends the trial court imposed limitations on

mental health testimony by defense experts in violation of her

federal constitutional rights to a fair trial, to present a defense,

and to a reliable penalty determination. Specifically, she claims

the court erred by striking testimony by arson expert Del

Winter, precluding other experts from relying on hearsay

statements about her background, and sustaining objections to

testimony about her mental condition at the time of the fire

pursuant to Penal Code sections 28 and 29.6 We assume some

error only concerning the court’s mental state rulings but find it

harmless.

a. Background

The trial court struck a portion of testimony by defense

expert Del Winter, a retired fire investigator. Winter testified

6

Section 28 allows for the admission of evidence of mental

impairment related to whether the accused “actually formed” a

required mental state (§ 28, subd. (a)), but section 29 prohibits

expert testimony on that question (§ 29).

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that the fire at defendant’s house was set in several places and

that a very small amount of gasoline was used. He found it odd

that the fire was set where it was not likely to cause significant

damage and the gas can was put back in its place after use. He

concluded that “the fire didn’t make a lot of sense.” Winter could

not recall a similar type of fire, stating, “This is pretty unusual.”

Addressing scorched items in the oven, Winter testified that

“[i]t’s just like the rest of this case. It just doesn’t make any

sense as far as logic.”

At the conclusion of his testimony, Winter identified

several classifications of arson, such as insurance fraud and

crime cover-up and a category he called “psycho fires,” in which

the motive for the fire is obscure. Although Winter was allowed

to opine over objection that defendant’s fire fell into the “psycho”

category, the next day the trial court revisited the ruling and

struck the testimony.

Addressing defendant’s mental health experts, the trial

court ruled that they would not be allowed to recount hearsay

statements during their testimony. The experts relied on

statements by defendant and her friends and family members

for information about her background, including anoxia (lack of

oxygen) at birth, epilepsy and hospitalization at an early age, a

difficult upbringing, and use of antidepressant and diet

medication shortly before the fire. The trial court determined

that the underlying statements and predicate facts did not

reflect indicia of reliability and would have to be established

through live witness testimony.

Following the court’s ruling, defendant testified

concerning details leading up to the fire, including her use of

diet medication and Zoloft after having an abortion. The defense

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also recalled defendant’s stepfather Albert Lucia to testify about

defendant’s childhood seizures and verbal and physical abuse by

her mother.

Dr. Humphrey then testified regarding defendant’s

background and possible traumas to her brain, stating that the

sources she considered to reach her opinion included interviews

with defendant and letters written by her, interviews with

Albert Lucia and defendant’s aunt, consultations with a non-

testifying expert (Dr. Kaser-Boyd), defense team members who

spoke to other witnesses, and records such as police reports and

prior assessments. The trial court sustained an objection to Dr.

Humphrey referencing defendant’s anoxia at birth, but Dr.

Humphrey went on to testify that defendant experienced other

risk factors consistent with brain damage early in life: being hit

hard in the head by her mother several times a day; an incident

at age 18 months that Dr. Humphrey interpreted as consistent

with seizure disorder; and fainting after the seizure incident

consistent with brain malfunction.

Dr. Ney conducted two examinations of defendant. He

testified that he relied on the examinations and interviews with

defendant, transcripts of witness testimony, reports by Drs.

Humphrey and Kaser-Boyd, police reports, statements by

defendant and her son to law enforcement, and statements from

defendant’s friends. Although the defense argued that Dr. Ney

should be allowed to explain defendant’s statements to him, the

trial court reiterated its prior ruling that experts would not be

allowed to repeat inadmissible hearsay.

During Dr. Ney’s testimony, the trial court also sustained

numerous objections under section 29. Dr. Ney testified that he

considered the possibility that defendant was trying to commit

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suicide on the night of the fire. The trial court sustained section

29 objections to several additional questions on this topic and

struck an answer in which Dr. Ney began to testify that he found

defendant’s actions consistent with suicide. The court overruled

a section 29 objection concerning whether defendant “was in a

depressive state” at the time of the fire but sustained section 29

objections to questions about whether she experienced a seizure,

serotonin syndrome, or dissociative state at the time of the fire

and to questions regarding defendant’s general mental condition

at the time of the fire. The court also struck Dr. Ney’s comment

that “it’s quite apparent that this was an organically determined

dissociative state.”

Despite these rulings, Dr. Ney testified about factors

affecting defendant at the time of the fire and his opinion that

they could have induced a seizure and related dissociation that

would render a person effectively unconscious. Dr. Ney testified

that defendant heard a roaring on the night of the fire, which he

interpreted as an epileptic “aura” preceding a seizure.

On surrebuttal, when Dr. Plotkin testified concerning

defendant’s increased risk for experiencing seizures and

delirium, the court sustained a section 29 objection to defense

counsel’s question that began by asking Dr. Plotkin to assume

that someone was in a dissociative state when lighting the fire.

b. Analysis

i. Arson expert

Defendant claims that the trial court’s decision to strike

Del Winter’s opinion about a “psycho” fire was erroneous under

sections 28 and 29, and that it was improper for the court to

make the ruling on its own motion. The trial court had broad

discretion to determine the relevance of the testimony and

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assess whether it was unduly misleading under Evidence Code

section 352. (People v. Sanchez (2019) 7 Cal.5th 14, 54.) The

trial court could also properly limit questions and interpose its

own objections under Penal Code section 1044, which outlines a

judge’s duty to control trial proceedings and limit the

introduction of evidence to relevant and material matters.

(People v. Sturm (2006) 37 Cal.4th 1218, 1241 (Sturm).)

The trial court was well within its discretion to exclude

Winter’s opinion as misleading and irrelevant. We found no

abuse of discretion when, as here, the trial court excluded as

irrelevant mental state testimony offered by a detective “who

was not a psychologist or a psychiatrist, was not qualified to

render an opinion as to whether defendant suffered from a

mental illness at the time [of the crime,]” and was not “qualified

to testify generally about the relationship between mental

illness and certain types of behavior.” (People v. Vieira (2005)

35 Cal.4th 264, 292.) Winter was similarly unqualified to

suggest that the person who set the fire in defendant’s home was

mentally unwell, or “psycho.”

Instructing the jury to disregard Winter’s “psycho” label

did not undercut the defense claim that the motive behind the

fire was mysterious or missing, as defendant contends. Winter

testified that the fire in defendant’s case was intentionally but

poorly set, unusual, and did not make sense. The trial court’s

limited instruction to disregard the reference to a “psycho” fire,

which Winter had added to those attributes, was not error.

ii. Expert reliance on hearsay statements

When an expert testifies concerning case-specific out-of-

court statements to explain the bases for his or her opinion,

those statements must be properly admitted through an

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applicable hearsay exception or admitted through an

appropriate witness and presented to the expert through a

properly worded hypothetical question. (People v. Sanchez

(2016) 63 Cal.4th 665, 684.) In Sanchez, we disapproved of the

conclusion in prior decisions such as People v. Gardeley (1996)

14 Cal.4th 605, 618, that expert testimony about case-specific

hearsay is not admitted for its truth and thus not subject to

hearsay rules. (Sanchez, at p. 686, fn. 13.) Gardeley nonetheless

correctly reflected the fundamental rule that “any material that

forms the basis of an expert’s opinion testimony must be

reliable” (Gardeley, at p. 618) and recognized that a trial court

“ ‘has considerable discretion to control the form in which the

expert is questioned to prevent the jury from learning of

incompetent hearsay.’ ” (id. at p. 619).

Defendant contends the trial court’s rulings prevented

defense experts Drs. Humphrey and Ney from relying on

hearsay statements that described defendant’s background —

an essential element of her mental state defense. Drs.

Humphrey and Ney both testified, however, that they relied on

a variety of out-of-court statements in reaching their opinions.

Dr. Humphrey testified about specific background and risk

factors she identified from those sources and Dr. Ney testified

that defendant’s history and symptoms fit the diagnoses

underlying the defense.

What the trial court did limit was testimony regarding

specific hearsay it found unreliable, such as defendant’s post-

arrest statements about her own background and medication

use. This was well within the court’s discretion. (Evid. Code,

§ 1252; People v. Jurado (2006) 38 Cal.4th 72, 129–130.)

Defendant also contends the trial court’s rulings prevented Dr.

Kaser-Boyd from testifying at all, but the trial court did not rule

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on the admissibility of her testimony and there is no evidence in

the record to indicate why — among many possible reasons —

the defense decided not to call her.

iii. Mental state testimony

Penal Code sections 28 and 29 “permit introduction of

evidence of mental illness when relevant to whether a defendant

actually formed a mental state that is an element of a charged

offense, but do not permit an expert to offer an opinion on

whether a defendant had the mental capacity to form a specific

mental state or whether the defendant actually harbored such a

mental state.” (People v. Coddington (2000) 23 Cal.4th 529,

582.) Under these sections, an expert may testify to establish

“defendant’s mental disorders at the time of the commission of

the crimes” and “whether the defendant’s conduct in committing

the crimes was consistent with the expert’s diagnosis of the

defendant’s mental condition.” (People v. Samayoa (1997) 15

Cal.4th 795, 836–837.) Thus, for example, “[a]n expert’s opinion

that a form of mental illness can lead to impulsive behavior is

relevant to the existence vel non of the mental states of

premeditation and deliberation.” (Coddington, at pp. 582–583.)

Defendant argues the trial court erred by limiting

questioning of Drs. Ney and Plotkin that would have allowed the

jury to infer that defendant did not premeditate or deliberate

murder. She also asserts the conditions at issue — serotonin

syndrome, a dissociative state, and epilepsy — are not mental

diseases, defects, or disorders within the scope of section 29

limitations. Defendant did not raise her contention about the

scope of section 29 at trial, where she successfully argued that

all of her conditions were mental disorders that the jury should

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consider in determining required mental states. This aspect of

defendant’s claim is therefore forfeited.

We need not decide whether all the trial court’s limitations

on defense questioning under section 29 were justified because

any error was harmless. Defendant claims the trial court

“eviscerated the defense” by preventing Drs. Ney and Plotkin

from testifying about the psychological and medical factors

affecting her at the time of the crimes, but the record reveals

otherwise.

Although the trial court struck Dr. Ney’s opinion that

defendant was suicidal, defense experts were otherwise able to

testify concerning the substance of what defendant sought to

present. Dr. Ney testified that defendant was likely

experiencing a combination of factors — depression, hormonal

changes, serotonin syndrome caused by diet and antidepressant

drug interactions, and seizure activity — that induced a

dissociative state on the night of the fire. Dr. Plotkin testified

that these factors would have caused delirium, a condition

distinct from dissociation, and provided additional medical

evidence of a seizure close to the time of the fire. Both experts

testified that such factors could cause a person to be unconscious

or semi-conscious while engaged in complex-seeming behavior.

Dr. Ney’s opinion that defendant was suicidal not only

conflicted with evidence defendant presented from several other

witnesses that she was not considering suicide, but it also

supported the prosecution theory that defendant had a suicidal

plan to kill herself and her children to spite her ex-husbands

and boyfriend. Precluding defense questioning on this topic, and

limiting questioning about defendant’s other conditions, did not

prejudice the defense.

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4. PET scan evidence

Defendant contends the trial court erred by excluding

evidence of her positron emission topography (PET) scan.7

Although the trial court erred in ruling PET scan evidence

inadmissible under the Kelly rule,8 the court also excluded the

PET scan evidence as irrelevant and misleading, a conclusion

that was not an abuse of discretion.

a. Background

Dr. Michael Gold conducted a neurological examination of

defendant. He reviewed her PET scan and determined it

showed impairment in some regions of her brain. Based on the

neuropsychological assessment by Dr. Humphrey, Dr. Gold

concluded that the impairments shown on the PET scan

predated defendant’s carbon monoxide poisoning and were

mostly likely related to a prior head trauma.

The prosecution orally requested a Kelly hearing on the

admissibility of PET scan evidence and the trial court granted

its request and set the hearing the following week to

accommodate a prosecution expert’s schedule. The trial court

dismissed defense counsel’s concern about the availability of

defense experts and rejected a subsequent defense motion to

7

We address post, in part II.C.1.b., defendant’s claims

regarding the exclusion of PET scan evidence in the penalty

phase.

8

Formerly known as the Kelly-Frye rule, based on the

rulings of People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v.

United States (D.C. Cir. 1923) 293 F. 1013, the rule is now the

Kelly rule in California after changes to the Federal Rules of

Evidence that superseded Frye. (People v. Bolden (2002) 29

Cal.4th 515, 545.)

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either reconsider the need for a hearing or to continue the

hearing and allow the defense time to prepare for it.

After receiving a written motion from the prosecution a

few minutes before the Kelly hearing was to begin, defendant

asked the court to strike the last-minute motion or give the

defense an opportunity to review the cases it cited. In addition

to arguments to exclude the PET scan under Kelly, the

prosecution motion claimed the PET scan was irrelevant or

unduly prejudicial under Evidence Code section 352. The

prosecution also stated that several articles filed with the trial

court, which discussed hearings in California and other

jurisdictions challenging the use of PET scans, supported

exclusion of the evidence. The trial court determined that the

hearing would begin immediately, would be framed by the

prosecution motion, and would settle all issues regarding

admissibility of the proposed PET scan evidence.

The defense presented three experts, Dr. Gold, Dr. Arthur

Kowell, and Dr. Mark Mandelkern. They testified that PET

scans had been in use since the 1970s and were accepted in the

scientific community as a legitimate measure of brain function,

particularly for specific conditions such as temporal lobe

epilepsy.

Drs. Gold and Mandelkern found abnormalities in

defendant’s PET scan that were consistent with temporal lobe

epilepsy. The abnormal regions of her brain were responsible

for judgment, memory, and verbal functions, they affected the

way a person would act and interpret data, and they were

consistent with indications of defendant’s impairment shown by

neuropsychological testing. Although it was not possible to

determine when defendant’s brain was injured, the

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abnormalities were consistent with defendant’s childhood

trauma and were not patterns that would occur from carbon

monoxide poisoning. Dr. Mandelkern testified that the PET

scan could not explain defendant’s functioning on the night of

the crimes or indicate whether she had seizures.

The prosecution presented testimony from Dr. Helen

Mayberg and Dr. Edwin Amos, who confirmed that PET scans

were used to identify temporal lobe epilepsy. They did not find

defendant’s PET scan consistent with epilepsy, however, and

questioned whether it showed any abnormality at all. Both

experts testified that defendant’s PET scan was presented in a

way that exaggerated abnormalities that might be trivial, thus

skewing the results. They explained that any abnormality on a

PET scan would not provide information about defendant’s past

behavior or events in defendant’s case.

The trial court concluded that the PET scan did not meet

the Kelly test, ruling that there was no substantial agreement

in the scientific community about its reliability for the uses

defendant intended. The trial court also found the evidence had

little if any relevance because it was highly speculative — there

was dispute whether the PET scan showed abnormality at all,

and, moreover, any perceived abnormality could not be linked to

any impact on defendant at the time of the crimes. The court

ruled that under Evidence Code section 352 any relevance was

outweighed by the undue consumption of time, confusion of the

issues for the jury, and undue prejudice.

Defendant moved for reconsideration, arguing that she did

not have time to prepare for the Kelly hearing nor notice that

the prosecution would argue that proper procedures for

administering and reading the PET scan were not followed. She

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also reiterated arguments that the PET scan was admissible in

the guilt and penalty phases of her trial. The trial court denied

the motion for reconsideration for the guilt phase and deferred

a decision on admissibility for the penalty phase.

b. Analysis

Under the Kelly rule, “ ‘when faced with a novel method of

[scientific] proof, [we] have required a preliminary showing of

general acceptance of the new technique in the relevant

scientific community’ before the scientific evidence may be

admitted at trial.” (People v. Daveggio and Michaud (2018) 4

Cal.5th 790, 831, quoting Kelly, supra, 17 Cal.3d at p. 30.) Kelly

“renders inadmissible evidence derived from a ‘new scientific

technique’ unless the proponent shows that (1) ‘the technique is

generally accepted as reliable in the relevant scientific

community’; (2) ‘the witness testifying about the technique and

its application is a properly qualified expert on the subject’; and

(3) ‘the person performing the test in the particular case used

correct scientific procedures.’ ” (People v. Jackson (2016) 1

Cal.5th 269, 315–316.) The party offering the evidence has the

burden of proving its admissibility by a preponderance of the

evidence. (People v. Ashmus (1991) 54 Cal.3d 932, 970.) We

review de novo the trial court’s evaluation regarding whether a

new scientific technique is generally accepted as reliable in the

relevant scientific community. (Id. at 971.)

Defendant proposed using the PET scan to corroborate

defendant’s history of seizure disorder and related cognitive

impairment. At the Kelly hearing, expert testimony established

that PET scans had been used for decades to evaluate brain

abnormality, and defense and prosecution experts alike testified

that PET scans were widely accepted and reliable for identifying

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brain abnormalities caused by temporal lobe epilepsy. That the

experts disagreed about whether defendant’s PET scan showed

such abnormality was a difference of opinion going to the weight

of the evidence, not to its admissibility. (People v. Fierro (1991)

1 Cal.4th 173, 214; People v. Jones (2013) 57 Cal.4th 899, 953.)

The People argue there was evidence that defense experts

did not use correct scientific procedures when manipulating the

PET scan images to highlight deficits. Yet prosecution expert

Dr. Mayberg testified that the type of manipulation seen in

defendant’s PET scan images was something radiologists did

“all the time.” The record does not support a finding that correct

scientific procedures were lacking.

Although the trial court erred in its ruling under Kelly, the

court did not abuse its discretion by excluding the PET scan

under Evidence Code section 352. The trial court retains

discretion to exclude even relevant evidence when its probative

value is substantially outweighed by the probability that its

admission will either necessitate undue consumption of time or

create substantial danger of undue prejudice, confusing the

issues, or misleading the jury. (People v. Young (2019) 7 Cal.5th

905, 931.) “We review a trial court’s decision to admit or exclude

evidence ‘for abuse of discretion, and [the ruling] will not be

disturbed unless there is a showing that the trial court acted in

an arbitrary, capricious, or absurd manner resulting in a

miscarriage of justice.’ ” (People v. Powell (2018) 5 Cal.5th 921,

951.) A trial court does not abuse its discretion by excluding

evidence that produces only speculative inferences. (People v.

Cornwell (2005) 37 Cal.4th 50, 81, disapproved on other grounds

in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

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In excluding evidence of the PET scan, the trial court

found it minimally relevant because it was highly speculative.

The court cited consensus among the experts that any abnormal

feature on the PET scan could not be linked to defendant’s

condition or actions at the time of the fire. After three days of

testimony from experts who disagreed about what, if anything,

defendant’s PET scan showed, it was not an abuse of discretion

for the trial court to determine that undue consumption of time

and confusion of issues for the jury outweighed what limited

relevance the PET scan might have.

Defendant claims exclusion of PET scan evidence violated

her right to present a defense. We have explained, however,

that “the ordinary rules of evidence, including the application of

Evidence Code section 352, do not infringe on the accused’s due

process right to present a defense.” (People v. Frye (1998)

18 Cal.4th 894, 948.) “ ‘Although we recognize that a criminal

defendant has a constitutional right to present all relevant

evidence of significant probative value in [her] favor

[citations], “. . . the proffered evidence must have more than

‘slight-relevancy’ to the issues presented.” ’ ” (People v. Homick

(2012) 55 Cal.4th 816, 865.) Here, defense experts agreed the

PET scan could not shed light on whether defendant

experienced a seizure on the night of the fire. Furthermore, any

abnormality affecting defendant’s judgment or impulsivity had

no apparent bearing on the guilt-phase defense, which was

based on defendant’s allegedly unconscious actions. Under

these circumstances, the PET scan had little probative value

and its exclusion did not violate defendant’s constitutional

rights.

Defendant contends the trial court abused its discretion by

denying her request for a continuance to prepare for the Kelly

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hearing, and that any insufficient showing by the defense was

caused by the court forcing counsel to proceed, resulting in a

fundamentally unfair hearing. Exclusion of the evidence under

section 352, however, was not the result of an inadequate

showing by the defense. Defendant’s experts unequivocally

endorsed key facts that supported the trial court’s section 352

ruling: the PET scan could not be correlated to particular

conditions or behaviors at the time of the fire or used to conclude

that defendant had experienced a seizure. There is no evidence

on this record to suggest that additional time to prepare would

have altered these conclusions.

Defendant argues that the trial court also abused its

discretion and deprived her of due process by allowing the

prosecution to challenge the relevance of PET scan evidence and

to seek its exclusion pursuant to Evidence Code section 352

without proper notice to the defense. This argument is forfeited

by defendant’s failure to raise it in the trial court. (People v.

Riggs (2008) 44 Cal.4th 248, 304.) It also lacks merit. In her

motion to reconsider the PET scan exclusion, defendant

acknowledged that she had notice of prosecution challenges to

relevance and prejudicial effect. The prosecution motion raised

these issues, the trial court expressed its intent to address them,

and defendant ultimately presented evidence and argument on

them.

Finally, defendant contends discovery statutes did not

authorize prosecution cross-examination of defense experts

outside the Kelly framework. Evidence Code sections 403 and

402 plainly permit the trial court to preview evidence and hear

testimony before ruling on questions of admissibility.

Furthermore, “ ‘[i]n determining the admissibility of evidence,

the trial court has broad discretion.’ ” (People v. Jackson, supra,

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1 Cal.5th at p. 320.) “ ‘When the relevance of proffered evidence

depends upon the existence of a preliminary fact, the trial court

must determine whether the evidence is sufficient to permit the

jury to find the preliminary fact true by a preponderance of the

evidence.’ ” (Id. at p. 321.) Discovery of potential testimony, by

both parties, was an unavoidable consequence of the court’s

proper function. (Cf. Hawkins v. Superior Court (1978)

22 Cal.3d 584, 588 [discovery benefit to accused is incidental to

preliminary hearing for probable cause determination].)

5. Failure to disqualify a prosecution expert

Defendant contends the trial court erred when it allowed

Dr. Alex Caldwell, whose company scored defendant’s

psychological testing, to testify on rebuttal for the prosecution.

Defendant argues that Dr. Caldwell’s appointment allowed

prosecutors access to confidential and privileged information

and violated her Fifth, Sixth, Eighth, and Fourteenth

Amendment rights. We conclude that no error occurred.

a. Background

Defense psychologist Dr. Kaser-Boyd administered

psychological tests to defendant in 1999 that included the

Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Dr.

Kaser-Boyd sent the MMPI-2 results to Dr. Caldwell’s scoring

service and obtained a computer-generated report that scored

and interpreted them according to his proprietary algorithm.

Dr. Kaser-Boyd’s report analyzed the 1999 testing and the

results of another MMPI-2 administered to defendant in 1997

during family court proceedings.

Defense counsel’s disclosures to the prosecution included

Dr. Kaser-Boyd’s report, the MMPI-2 test results, and Dr.

Humphrey’s report, which indicated that she reviewed Dr.

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Kaser-Boyd’s report and the MMPI-2 testing. After defense

counsel announced he would call Dr. Humphrey to testify, the

prosecutors obtained the appointment of Dr. Caldwell pursuant

to Evidence Code section 730 to assist them and prepare to

provide rebuttal testimony regarding the MMPI-2. The trial

court denied defendant’s motion to vacate Dr. Caldwell’s

appointment.

During cross-examination, Dr. Humphrey confirmed that

she reviewed Dr. Caldwell’s report. She acknowledged that his

report found a strong possibility that defendant had

exaggerated her test responses or falsified them, a detail Dr.

Humphrey had not mentioned in her own report or direct

testimony. Dr. Humphrey also acknowledged that the 1997

MMPI-2 found defendant trying hard to present herself in a

favorable light, likely invalidating the profile. Dr. Caldwell

testified on rebuttal that the 1999 and 1997 results were

“strikingly opposite” and suggestive of someone consciously

distorting the results.

b. Analysis

Defendant claims the trial court erred by refusing to

vacate Dr. Caldwell’s appointment, arguing that

disqualification was required because he received confidential

and privileged information from the defense. Defendant relies

primarily on federal civil cases to support her theory that

disqualification was required for “a ‘switching sides’ expert —

an expert who is initially retained by one party, dismissed, and

employed by the opposing party in the same or related

litigation.” (Erickson v. Newmar Corp. (9th Cir. 1996) 87 F.3d

298, 300.) Defendant has forfeited this argument by failing to

present it to the trial court. The civil disqualification concerns

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are also inapplicable in this setting, in which Dr. Caldwell’s

report and the underlying data were plainly confidential and yet

were voluntarily disclosed to the prosecution pursuant to

criminal discovery obligations.

We reject defendant’s argument that the trial court

violated her right against self-incrimination by allowing the

prosecution to retain Dr. Caldwell and use confidential

information in his report against her. “By presenting, at trial, a

mental-state defense to criminal charges or penalties, a

defendant waives his or her Fifth Amendment privilege to the

limited extent necessary to allow the prosecution a fair

opportunity to rebut the defense evidence. Under such

circumstances, the Constitution allows the prosecution to

receive unredacted reports of the defendant’s examinations by

defense mental experts, including any statements by the

defendant to the examiners and any conclusions they have

drawn therefrom.” (Maldonado v. Superior Court (2012)

53 Cal.4th 1112, 1125.) Once a defendant calls a defense expert

to the stand, she waives “any protections that the attorney-

client privilege, the attorney work product doctrine, and the

privilege against self-incrimination afforded [her] regarding all

matters that [her testifying experts] considered or on which they

relied.” (People v. Combs (2004) 34 Cal.4th 821, 864 (Combs);

see also Ledesma, supra, 39 Cal.4th at p. 695.)

Furthermore, an expert witness may be cross-examined

concerning “the matter upon which his or her opinion is based

and the reasons for his or her opinion.” (Evid. Code, § 721, subd.

(a)(3).) “The scope of cross-examination permitted under section

721 is broad, and includes examination aimed at determining

whether the expert sufficiently took into account matters

arguably inconsistent with the expert’s conclusion.” (Ledesma,

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supra, 39 Cal.4th at p. 695.) The prosecution may not only cross-

examine a defense expert about an otherwise privileged report

the expert considered, but also may call the non-testifying

author of such a report to testify as a rebuttal witness for the

prosecution. (Combs, supra, 34 Cal.4th at p. 864; People v.

Alfaro (2007) 41 Cal.4th 1277, 1323.)

Defendant cites Rodriguez v. Superior Court (1993)

14 Cal.App.4th 1260, 1270, to support her argument that she

did not waive her privilege against self-incrimination when she

disclosed Dr. Caldwell’s report. The appellate court in

Rodriguez did not address Fifth Amendment protections, ruling

instead that attorney-client privileges applied to pretrial

discovery and that defendant’s statements about the charged

offense could properly be redacted from an otherwise

discoverable defense expert’s report. (Ibid.) Such

considerations are not relevant here, where defense counsel

voluntarily disclosed all reports related to MMPI-2 testing to the

prosecution.

Defendant also claims that Dr. Humphrey’s testimony did

not result in a waiver of privileges because Dr. Humphrey did

not base her opinions on Dr. Caldwell’s report and the defense

did not “open the door” by asking Dr. Humphrey about the

report during direct examination. This argument, which

defendant raises for the first time in her reply briefing, is one

we have rejected. (Combs, supra, 34 Cal.4th at p. 864.) When

testifying experts have “read and considered” a non-testifying

expert’s report, all privileges regarding the report are waived.

(Ibid.; Ledesma, supra, 39 Cal.4th at p. 696.)

Here, the trial court correctly ruled that defendant waived

her Fifth Amendment rights and other privileges regarding Dr.

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Caldwell’s report when she presented the testimony of Dr.

Humphrey. Dr. Humphrey testified that she considered

defendant’s MMPI-2 reports but she ignored the implications

they raised about defendant’s truthfulness. The prosecution

was entitled to call Dr. Caldwell as a witness to address “all the

circumstances involved in the testing, not merely the truncated

version defendant desire[d].” (People v. Cooper (1991) 53 Cal.3d

771, 824; see also People v. Alfaro, supra, 41 Cal.4th at p. 1326.)

Defendant claims Dr. Caldwell’s appointment to assist the

prosecution was improper because it preceded Dr. Humphrey’s

testimony, but defendant points to no authority to suggest that

the prosecution is prohibited from preparing for anticipated

rebuttal. On the contrary, such preparation, even before trial,

does not violate defendant’s constitutional rights or other

privileges. (People v. Maldonado, supra, 53 Cal.4th at pp. 1132–

1133.) Under Evidence Code section 730, the authority under

which Dr. Caldwell was appointed, trial courts may appoint

experts to assist the prosecution with rebuttal concerning a

mental state defense. (People v. Banks, supra, at p. 1193;

Maldonado, at p. 1125.)

Defendant also contends the trial court’s decision to allow

Dr. Caldwell to testify against her violated her Sixth and

Fourteenth Amendment rights to the assistance of counsel and

the ancillary services of mental health experts. “A criminal

defendant has the due process right to the assistance of expert

witnesses, including the right to consult with a psychiatrist or

psychologist, if necessary, to prepare his [or her] defense. (Ake

v. Oklahoma (1985) 470 U.S. 68, 83.) The Sixth and Fourteenth

Amendments to the United States Constitution also guarantee

a defendant’s right to present the testimony of these expert

witnesses at trial.” (People v. San Nicolas (2004) 34 Cal.4th 614,

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661–662.)

These propositions, focusing on a defendant’s access to

confidential expert assistance to prepare a defense, are

inapposite here, where the record reveals at least eight experts

who assisted the defendant with her mental state defense.

6. Asserted prosecutorial misconduct

Defendant contends that the prosecutor committed

misconduct by asking Dr. Plotkin to opine about the credibility

and veracity of defense witness testimony by Albert Lucia and

defendant. Defendant argues that the questioning constituted

misconduct under California law and violated her federal

constitutional rights to a fair trial. We reject these claims.

a. Background

Albert Lucia, defendant’s stepfather, spoke to her the day

before the fire and testified about her state of mind at that time.

After the trial court ruled that defense experts would not be

allowed to relate Lucia’s description of defendant’s childhood,

the defense recalled him to testify concerning defendant’s

history of seizures, hospitalization, and loss of consciousness as

a child.

Defendant testified regarding events before, during, and

after the fire. She testified that she began taking Zoloft after

her abortion. She also claimed that she did not recall writing

letters just before the fire that various people received from her;

she said that obscenities in one letter, which said “fuck you,”

were not her “normal way of talking.” During cross-

examination, the prosecutor highlighted defense expert notes

indicating that defendant did recall writing the letters and in

rebuttal presented evidence that a code defendant used to access

her pager messages was “fuck you.” The prosecution also

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questioned defendant’s veracity during its case-in-chief,

presenting evidence that when renting her home defendant

falsely stated that she was married with three, rather than five,

children, and forged her ex-husband’s signature on the rental

application.

Dr. Plotkin testified on surrebuttal that defendant’s

childhood health issues, as described by Lucia, were consistent

with childhood seizures, which contributed to his opinion that

defendant’s actions could have been affected by a seizure at the

time of the fire. On cross-examination, Dr. Plotkin explained

that Lucia’s testimony was compelling because it was unlikely a

lay person could give the proper sequence of events to reflect

seizure disorder. In response to questions suggesting that Lucia

could have been coached before he returned to testify a second

time, Dr. Plotkin agreed that without more information it was

as likely as not that he was coached.

Dr. Plotkin also described the potential effects of

defendant’s medication interactions, basing his conclusions on

defendant’s claim that she took Zoloft. The prosecutor asked

whether it would affect Dr. Plotkin’s view of defendant’s

truthfulness to know that she had a history of malingering on

psychological tests, as established by Dr. Caldwell’s analysis of

her MMPI-2 test results, and had fabricated a rental agreement

and committed fraud on her landlord. Apparently referencing

the testimony regarding defendant’s use of obscenities and her

pager code, the prosecutor asserted that defendant lied and

committed perjury on the witness stand and that physical

evidence proved her to be a liar. Dr. Plotkin conceded that if

defendant had lied in the past she might lie again.

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b. Analysis

“A prosecutor who uses deceptive or reprehensible

methods to persuade the jury commits misconduct, and such

actions require reversal under the federal Constitution when

they infect the trial with such ‘ “unfairness as to make the

resulting conviction a denial of due process.” ’ [Citations.]

Under state law, a prosecutor who uses such methods commits

misconduct even when those actions do not result in a

fundamentally unfair trial. [Citation.] In order to preserve a

claim of misconduct, a defendant must make a timely objection

and request an admonition; only if an admonition would not

have cured the harm is the claim of misconduct preserved for

review.” (People v. Alfaro, supra, 41 Cal.4th at p. 1328; see also

People v. Chatman (2006) 38 Cal.4th 344, 380 [objection to

misconduct at trial must be timely “and on the same ground” as

that raised on appeal].)

Defendant first argues that the prosecution committed

misconduct by eliciting speculative and irrelevant testimony

from Dr. Plotkin about Lucia’s veracity. Defendant’s failure to

object on this basis at trial forfeits the claim. Defendant argues

that she adequately preserved the misconduct claim with

objections that the prosecution misstated the evidence, but this

unrelated objection did not give the trial court “an opportunity

to correct the asserted abuse.” (People v. Young (2005)

34 Cal.4th 1149, 1186.) Even were the claim preserved, we

would conclude that it lacks merit.

“ ‘[I]t is well settled that the scope of cross-examination of

an expert witness is especially broad.’ ” [Citation.]” (People v.

Peoples (2016) 62 Cal.4th 718, 746.) It is therefore permissible

to “cross-examine an expert witness more extensively and

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searchingly than a lay witness, and . . . to attempt to discredit

the expert’s opinion.” (People v. Dennis (1998) 17 Cal.4th 468,

519; accord People v. Alfaro, supra, 41 Cal.4th at p. 1325.) “ ‘In

cross-examining a psychiatric expert witness, the prosecutor’s

good faith questions are proper even when they are, of necessity,

based on facts not in evidence. [Citation.]’ ” (People v. Wilson

(2005) 36 Cal.4th 309, 358.)

Defendant asserts an expert witness may not express an

opinion on witness credibility and that questions concerning

that topic improperly called for irrelevant testimony. We have

recognized, however, that “[t]here is no reason to categorically

exclude” such questioning. (People v. Chatman, supra,

38 Cal.4th at p. 382.) Dr. Plotkin accepted Lucia’s testimony as

credible because he doubted Lucia could fabricate a sequence of

events indicative of seizure disorder. The prosecutor’s

subsequent questioning about whether Lucia could have been

coached was a “plausible alternative” to Dr. Plotkin’s

interpretation that was relevant and permissible in order to

explore those assertions. (People v. Anderson (1990) 52 Cal.3d

453, 479; see also Chatman, at p. 382.)

Defendant next contends the prosecution committed

misconduct when questioning Dr. Plotkin about defendant’s

credibility by stating that she had lied and committed perjury.

Defendant argues that by objecting to such questions as

misstating or mischaracterizing the evidence, she preserved the

claim. Even if that were case, we would conclude that the claim

lacks merit.

“An expert witness may be cross-examined on, among

other subjects, the matter upon which his or her opinion is based

and the reasons for the opinion, including any statements by the

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defendant that formed the basis for the expert’s opinion.”

(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 85; Evid.

Code, § 721, subd. (a).) Although it is misconduct to misstate

evidence during witness questioning (People v. Hill (1998)

17 Cal.4th 800, 825), a prosecutor may address the credibility of

witnesses by reference to facts in the record (People v. Peoples,

supra, 62 Cal.4th at p. 796). “Prosecutors tread on dangerous

ground, however, when they resort to epithets to drive home the

falsity of defense evidence.” (People v. Ellis (1966) 65 Cal.2d

529, 539.)

Characterizing defendant as a liar and perjurer based on

an obscene pager code was questionable; defendant’s testimony

on cross-examination, however, raised the possibility that she

attempted to falsely deny responsibility for writing a highly

inculpatory note to her ex-husband. We conclude that the

“single reference” to alleged perjury (People v. Ellis, supra,

65 Cal.2d at p. 540) did not rise to the level of “ ‘deceptive or

reprehensible methods’ ” that amounted to misconduct (People

v. Friend (2009) 47 Cal.4th 1, 29), and the prosecutor’s other

questions — about defendant’s exaggerated or false MMPI-2

responses and misrepresentation and forgery in her rental

application — were proper subjects for cross-examination based

on evidence before the jury.

7. Instructional error related to discovery violations

Defendant contends the trial court erred when it

instructed the jury that she concealed and failed to timely

disclose material related to defense experts and lay witnesses.

Although the trial court erred, we conclude the error was

harmless.

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a. Background

Before trial, the defense disclosed reports from its arson

expert and experts addressing defendant’s mental state. The

prosecutors moved for additional discovery of interviews and

other materials considered by defense experts, with defendant

arguing that they were not entitled to pretrial discovery of such

information. The trial court’s pretrial discovery order tracked

the language of section 1054.3, requiring defendant to disclose,

among other things, names, addresses, written statements, and

reports of statements by witnesses the defense intended to call

and expert reports and the results of any physical or mental

examinations the defense intended to offer in evidence at trial.

As trial approached, the prosecution continued requesting

discovery from defense experts, including material they relied

upon, notes about their testing and communications with other

experts, and the methodology experts used to obtain and analyze

test results. The defense disclosed some of its experts’ notes

concerning the tests administered to defendant but again

argued that other notes and materials were protected until the

experts testified. The trial court ruled that defendant was

entitled to withhold additional privileged information at least

until the prosecution rested.

At the close of the prosecution’s case-in-chief, defense

counsel provided what he claimed was all remaining discovery

from the defense experts, including notes, interviews, testing,

and communications with defendant. The prosecution asked for

a month-long continuance to review the new material and

prepare to cross-examine defense experts. The prosecution also

complained that some of the experts’ handwritten notes were

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illegible and the prosecutors would need time to review them

with its experts.

At the same time, it came to light that defense counsel had

not disclosed statements by the first lay witnesses he intended

to call, Debbie Wood and Rhonda Hill. Counsel then turned over

interview notes for Hill and Wood, and for Albert Lucia and

Penny Lucia, claiming he overlooked them because they were in

his paralegal’s files. The trial court ruled that those defense

witnesses would not be allowed to testify until the court could

determine what sanctions to impose for the discovery violations:

“It may be that there’s no prejudice to the prosecution, but I am

not going to know that until I have a hearing on it.”

The trial court then informed the jury: “Ladies and

gentlemen, under the law in California, the laws of discovery

require that the prosecution and the defense are required to

disclose to each other before trial the evidence each intends to

present at trial. The reason for doing that is to promote the

ascertainment of truth, save court time, and avoid surprise

which may arise during the course of trial. [¶] Disclosures of

evidence are required to be made at least 30 days in advance of

trial. Any new evidence discovered within 30 days of trial must

be disclosed immediately. [¶] This morning, and in one case

this afternoon, [defense counsel] provided the prosecution for

the first time statements of witnesses that should have been

disclosed 30 days before trial. [¶] Because it is late disclosure

the court is going to give the People sufficient time to prepare as

to one witness, and the court will consider what will happen as

the other two or more witnesses. . . . I’ll give you further

instructions on this discovery noncompliance later on when the

issues are more clarified.”

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The prosecutors’ primary concern regarding the lay

statements was whether the defense experts had considered

them. After determining that those experts had not considered

the Wood and Hill statements, the prosecutors stated that they

were prepared to cross-examine them without delay but

requested additional time to prepare for the testimony of Albert

and Penny Lucia. The trial court decided the testimony would

proceed as scheduled, with the prosecution allowed to recall the

Lucias to address any issues raised by the new discovery. The

untimely statement from Albert Lucia was brief, and addressed

an incident involving defendant’s mother. During his

testimony, the court sustained objections to the incident as

irrelevant.

Regarding newly disclosed expert materials, the trial

court stated that the options were to preclude defense expert

testimony entirely or grant a continuance to allow the

prosecution time to prepare. The court faulted the defense for

the prospect of a two to four week continuance it found

“outrageous.” To avoid further delay during which time the

prosecution would attempt to decipher experts’ notes, the trial

court ordered one of the defense experts to provide the

prosecution with a typed transcription of his notes and ordered

two others to dictate their notes to court reporters, who would

then provide a transcription.

The trial court then informed the jury there would be a

two-week recess: “And I wanted to tell you the reason why we’re

taking this two-week delay. [¶] The defense has indicated their

intention to call psychologists and/or psychiatrists in the

defense. The People were provided with the information from

their experts — and they need to prepare for this presentation

— fairly recently. [¶] And the timing of that disclosure, which

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is permitted by law; in other words, the defense doesn’t have to

provide that information until the witnesses testify. But the

delay in the disclosure has necessitated a need to continue this

case so that the People can prepare to examine the witnesses.

[¶] Also the time is needed because the notes of some of their

experts are indecipherable to a great degree, and there’s going

to be a need for time to get those notes put into some kind of a

form where they can be read and interpreted by the People’s

experts.”

The trial court then immediately proceeded to address the

discovery violation regarding the lay witnesses, advising the

jury with CALJIC former No. 2.28 that “defendant has

concealed and failed to timely disclose evidence regarding

witness statements — witness statements of Debbie Woods,

Rhonda Hill, Al Lucia, Penny Lucia, Delores Morris, and Aunt

Lenore.”9 The court also imposed a $500 monetary sanction on

defense counsel under Code of Civil Procedure section 177.5.

9

The full instruction provided the following: “Also a slightly

different issue, and I gave you an instruction on this, I believe,

last week. [¶] That is that the prosecution and defense are

required to disclose to each other before trial evidence each

intents to present at the trial so as to promote the ascertainment

of truth, save court time, and avoid any surprise which may

arise during the course of the trial. [¶] Concealment of evidence

and delay in the disclosure of evidence may deny a party a

sufficient opportunity to subpoena necessary witnesses or

produce evidence which may exist to rebut the non-compliant

party’s evidence. [¶] Disclosure of evidence is required to be

made at least 30 days in advance of trial. Any new evidence

discovered within 30 days of trial must be disclosed

immediately. [¶] In this case, the defendant has concealed and

failed to timely disclose evidence regarding witness statements

— witness statements of Debbie Woods, Rhonda Hill, Al Lucia,

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Defense counsel objected to the court referencing the

statements of Morris and Lenore Frey — their statements came

from defense expert files but they were not defense witnesses.

Defense counsel later raised additional objections to the

discovery sanction, to the court’s remarks to the jury about the

two-week delay, and to the trial court “lump[ing] everything

together” when it addressed the continuance and discovery

violations at the same time.

During Dr. Humphrey’s cross-examination, she revealed

that she did not use standard normative data to score one of the

tests she administered to defendant. She acknowledged that

she had been told to provide prosecutors with everything she

consulted, but she had not given them information about the

new data.

Just before Dr. Ney testified, the defense turned over the

doctor’s recent interview with Albert Lucia, several pages of

research articles he considered, and a package of material he

planned to reference that included his opinions about a number

of conditions and differential diagnoses. Dr. Ney also

acknowledged that he interviewed defendant the night before

testifying, and, at defense counsel’s suggestion, did not take

notes. The prosecution informed the court that there was a

Penny Lucia, Delores Morris, and Aunt Lenore. [¶] Although

this concealment and failure to timely disclose evidence was

without lawful justification, the court will, under the law,

permit the production of this evidence during the trial. [¶] The

weight and significance of any concealment and delay of

disclosure are matters for your consideration. [¶] However,

when you do start to deliberate in this case, you should consider

whether the concealed and untimely disclosed evidence pertains

to a fact of importance, something trivial, or subject matters that

are established by other credible evidence.”

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“huge amount” of new information in the recently disclosed

material.

The trial court concluded that the recent disclosures

appeared to violate the court’s ruling made a week prior,

requiring Dr. Ney to produce everything he relied upon in

forming his opinion. The court then explained to the jury that,

given the new disclosure, “I am going to have to make a decision

on whether this is a violation of the discovery rules.”

Upon further examination, it appeared the disclosures

included a prior, undisclosed report of Dr. Ney’s conclusions and

a “pregnancy loss questionnaire” regarding defendant that he

had not turned over to the prosecution. The court ordered the

defense to make Dr. Ney’s entire file available to the prosecution

for review, which in turn revealed additional reports, notes, and

articles not previously disclosed. The prosecutor stated that she

was not inclined to ask for more time to review the material

because doing so would not be fair to the jury, but she requested

monetary sanctions against both Dr. Ney and defense counsel,

as well as a jury instruction, which the defense opposed.

The trial court denied the request for sanctions against Dr.

Ney but agreed over additional defense objections to instruct the

jury with CALJIC No. 2.28. The trial court rejected the

prosecution’s argument that the initial mid-trial disclosure of

defense expert material, and two-week delay, justified the

instruction. The prosecutors also conceded the instruction was

not appropriate with regard to Penny Lucia’s statement, which

they received before her testimony, or for statements from

Morris and Frey, who did not testify. The trial court stated that

the wording of violations pertaining to Drs. Ney and Humphrey

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was meant to be broad enough to address Dr. Ney’s failure to

take notes when interviewing defendant.

When giving guilt phase instructions, the trial court read

to the jury CALJIC former No. 2.28, describing defendant’s

violations as concealing and failing to timely disclose “[w]itness

statements of Debbie Wood, Rhonda Hill, and Al Lucia” and to

provide “[r]eadable notes and reports and other materials relied

upon [by] witnesses Dr. Philip Ney and Dr. Lorie Humphrey.”

The prosecution also referenced the instruction in closing

argument: “You also received an instruction with respect to

discovery violations and the failure to produce evidence 30 days

prior to trial. [¶] [The] People, along with the Sheriff’s

Department, gave all the evidence to the defense in accordance

with the law. We can’t say the same for the defense. [¶] The

point of it is you can’t find defendant guilty because they hid

stuff. The point is why. Why hide? Why hide your defense? [¶]

I[’ll] tell you why. Desperation. The evidence in this case is so

overwhelming, so enormous, and so vast, what are you going to

do? [¶] It’s in order to prevent the prosecution from being able

to prepare; in order to gain a strategic advantage.”

b. Analysis

Defendant claims the trial court erred when it sanctioned

her for failing to provide the prosecution with items the criminal

discovery statutes did not obligate her to disclose and for

discovery violations that did not hinder the prosecution. She

also argues that the particular instruction given, CALJIC

former No. 2.28, was flawed in several respects.

i. Scope of discovery violations

Defendant argues preliminarily that there was no

discovery violation related to the disclosure of statements from

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witnesses Morris and Frey, “readable” notes from defense

experts, and materials relied upon by defense experts. We agree

that defendant’s disclosure of these items did not violate the

criminal discovery statute or the trial court’s pretrial discovery

rulings. Defendant also contends that discovery violations that

did occur were limited and of little consequence, a

characterization we find incomplete in that it refers only to

disclosures regarding lay witness.

First, defendant claims that her disclosure of the Morris

and Frey statements did not constitute a discovery violation

because she did not intend to call them as witnesses in the guilt

phase. The record indicates that the statements were among

the disclosed files of a defense expert, but Morris and Frey did

not testify during the guilt phase, and the prosecutors later

conceded that guilt phase instructions about discovery

violations should not reference Morris and Frey.

The People argue that the statements were discoverable

because defense experts relied on them. Although the

prosecution was entitled to material upon which testifying

experts relied (Ledesma, supra, 39 Cal.4th at p. 695), the trial

court ruled that defendant’s disclosure of expert materials

shortly before their testimony was lawful. There was no

discovery violation because the statements did not pertain to

witnesses the defense intended to call (§ 1054.3) and the defense

disclosed them as a basis for expert opinion at a time the trial

court condoned. The People assert defendant forfeited her

argument by disclosing the Morris and Frey statements without

objection, but this does not establish forfeiture of the claim that

discovery sanctions were unwarranted, an objection defendant

raised at trial.

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The People also argue that the defense improperly delayed

disclosures related to Frey. They assert that because she was

later called as a penalty phase witness, her statements should

have been disclosed 30 days before the guilt phase. The trial

court addressed discovery violations related to Frey’s

statements during the penalty phase when they arose but this

posed no discovery violation with regard to the guilt phase, as

the prosecution ultimately acknowledged.

Second, defendant claims that because she was not

required to disclose notes and other material relied upon by

defense experts until they were called to testify, there was no

discovery violation that warranted the trial court’s instruction

that she concealed and failed to disclose “readable” notes.

The People assert that the criminal discovery statute

requires defendants to disclose an expert’s raw written notes,

citing Verdin, supra, 43 Cal.4th 1096, 1103–1104, and

Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 486.

These cases do not support such a broad proposition. In Verdin

we addressed compelled pretrial examination of a defendant by

prosecution experts and merely observed that the defendant in

that case did not object to disclosing “written or recorded

information” possessed by the defense expert; we also

determined that the description of discovery in Penal Code

sections 1054.1 and 1054.3 did not exclude other types of

materials from the reach of the criminal discovery statutes.

(Verdin, at pp. 1103–1104.) In Thompson, the appellate court

determined that raw notes of a witness interview constituted

witness statements for purposes of Penal Code sections 1054.1

and 1054.3. (Thompson, at p. 485.)

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Defense counsel’s pretrial disclosures included expert

notes concerning their testing of defendant. The notes at issue

regarding the later disclosures included defendant’s statements

to experts and consultations among defense experts and other

defense team members, information normally protected from

disclosure until presentation of the expert’s testimony waives

applicable privileges. (Ledesma, supra, 39 Cal.4th at p. 695;

§ 1054.6; see also Evid. Code, § 721, subd. (a).)

Although an expert’s handwritten notes may be

discoverable pursuant to section 1054.3 under some

circumstances (People v. Hajek and Vo (2014) 58 Cal.4th 1144,

1233), the trial court here ruled that defense counsel was not

required to disclose privileged information and work product

before trial and acknowledged that defendant was entitled to

delay disclosure of notes and other expert materials until her

experts testified. We therefore conclude that regardless of their

legibility, defendant was not required to disclose the expert

notes before trial. “Rather, because the record does not

demonstrate the [defendant] failed to disclose any discoverable

material, and the undisclosed . . . information fell outside the

scope of the discovery statute, no discovery violation appears.”

(People v. Tillis (1998) 18 Cal.4th 284, 290–291.)

The People contend that defendant did not object to her

experts creating legible versions of their notes and thus forfeited

the claim. This point, which defendant disputes, does not relate

to defendant’s claim that disclosure of the notes was not

untimely. The claim is not forfeited when, as here, defense

counsel consistently argued that he was entitled to withhold

experts’ notes until they testified.

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Third, defendant contends there was no discovery

violation regarding “other materials relied upon” by Drs. Ney

and Humphrey. Defendant does not challenge the trial court’s

ruling that Dr. Humphrey withheld test data from the

prosecution in violation of section 1054.3. We do not identify

other discovery violations at issue relating to Dr. Humphrey and

the parties do not point to any. Regarding disclosures from Dr.

Ney, the People argue that “other materials” refers to his notes

on defendant’s mental state — not, as defendant argues, to texts

or reference works. Neither party offers a citation to the record

on this point.

The trial court stated that disclosures from Dr. Ney

violated the court’s order, issued shortly before his testimony,

that he produce all material on which he relied. This was

consistent with the trial court’s earlier rulings that prosecutors

were not entitled to outstanding defense expert materials until

they testified and reflected the prosecution’s right to access the

information for cross-examination, pursuant to Evidence Code

section 721, rather than for pretrial discovery, pursuant to

Penal Code section 1054.3. (Cf. People v. Jones (2003) 29 Cal.4th

1229, 1264 [trial court may order disclosure of unredacted

defendant statements before testimony of an expert the defense

“ ‘definitely’ ” will call]; Ledesma, supra, 39 Cal.4th at p. 695.)

The trial court also indicated that the discovery sanction

addressed Dr. Ney’s failure to take notes when interviewing

defendant just before he testified, a concern similarly outside

the scope of the discovery statute. We therefore conclude that

defendant did not violate her discovery obligations regarding

“materials relied upon” by Dr. Ney.

Finally, defendant claims the trial court’s instructions

were unnecessary when the statements that were not timely

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disclosed were brief, uncomplicated, and in some respects

unrelated to the guilt phase. Defendant’s argument focusses on

statements from lay witnesses — Woods, Hill, Albert Lucia, and

Penny Lucia. After receiving late disclosure of statements from

Wood and Hill, the prosecutors determined that they did not

need additional time to prepare to cross-examine them. The

untimely statement from Albert Lucia addressed an incident the

court later ruled was irrelevant. And the prosecutors

determined that having received Penny Lucia’s statement

before she testified, no further sanction was warranted.

Although defendant does not address the impact of withholding

Dr. Humphrey’s normative data or Dr. Ney’s reports, it appears

the prosecution had little trouble managing the late disclosure

of lay statements.

To summarize, the trial court twice instructed the jury

concerning discovery violations regarding lay witnesses: the

first time naming Woods, Hill, Albert Lucia, Penny Lucia,

Morris, and Lenore Frey; and the second time naming just

Woods, Hill, and Albert Lucia. We have concluded that there

was no discovery violation regarding statements from Morris

and Frey and, as we have just observed, the prosecutors at trial

appeared unaffected by delayed statements from the remaining

four lay witnesses.

Regarding expert witnesses, the trial court instructed the

jury that defendant failed to timely disclose “[r]eadable notes

and reports and other materials relied upon” by Drs. Ney and

Humphrey. We have concluded that the notes at issue here were

not discoverable pursuant to section 1054.3, readable or

otherwise. We have also determined that there was no discovery

violation in defense counsel’s disclosure of “other materials

relied upon” by Dr. Ney. In other words, discovery violations

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regarding defense expert materials were limited to reports by

Dr. Ney and test data from Dr. Humphrey.

ii. Instruction on specific discovery violations

Defendant contends that by citing alleged defense failures

that were not discovery violations and referring to discovery

violations that did not hinder the prosecution, the trial court’s

instructions to the jury were arbitrary, disproportionate,

unwarranted, and deprived her of a fair trial and due process.

Defendant further claims that the trial court erred by

instructing the jury with CALJIC former No. 2.28.

The trial court commented generally on discovery

compliance and delays by the defense and also instructed the

jury about specific discovery violations. We address the trial

court’s general comments relating to discovery compliance in

conjunction with defendant’s claims regarding judicial

misconduct, post, part II.D. Concerning the specific discovery

violations, we conclude that it was error to instruct the jury with

CALJIC former No. 2.28, given the deficiencies we have

identified in that instruction (People v. Thomas (2011)

51 Cal.4th 449, 483 (Thomas)) and the scope of discovery

violations in defendant’s case.

First, the instruction informed the jury that the

“defendant” concealed and failed to timely disclose evidence

when there was no indication defendant played any such role.

It was therefore “ ‘misleading to suggest that “the defendant”

bore any responsibility’ [citation] for [her] attorney’s failure to

provide discovery.” (Thomas, supra, 51 Cal.4th at p. 483.)

Second, although the instruction indicated that

concealment and late disclosure could affect the prosecution,

there was no evidence that this “had actually deprived the

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prosecutor ‘of the chance to subpoena witnesses or marshal

evidence in rebuttal.’ ” (Thomas, supra, 51 Cal.4th at p. 483.)

This was particularly true in defendant’s case, where the trial

court instructed jurors to consider late disclosures: for Morris

and Frey, although there was no discovery violation related to

their statements; for Wood, Hill, and Penny Lucia, although the

prosecution claimed it was unaffected by the timing of their

disclosures; for Albert Lucia, whose statement the court later

found irrelevant; and for a broadly articulated category of

“readable notes” and “other material” from Drs. Humphrey and

Ney that was, on review, inapplicable.

Finally, the instruction “was deficient in informing the

jury that ‘ “[t]he weight and significance of any delayed

disclosure are matters for your consideration,” ’ because it

offered ‘no guidance on how this failure might legitimately affect

their deliberations.’ ” (Thomas, supra, 51 Cal.4th at p. 483.)

iii. Prejudice

Defendant asserts the erroneous discovery instructions

constitute structural error. “ ‘[M]ost constitutional errors can be

harmless.’ [Citation.] ‘[I]f the defendant had counsel and was

tried by an impartial adjudicator, there is a strong presumption

that any other [constitutional] errors that may have occurred

are subject to harmless-error analysis.’ ” (Neder v. United States

(1999) 527 U.S. 1, 8.) We have therefore recognized that

structural error is limited to circumstances in which the error

“necessarily affected the whole framework within which the

trial proceeded” or “defies analysis for prejudice.” (People v.

Mendoza (2016) 62 Cal.4th 856, 901.) Neither of these

conditions apply here.

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We conclude that it is not reasonably probable that an

outcome more favorable to defendant would have resulted

absent the error (People v. Watson (1956) 46 Cal.2d 818, 836),

and any federal constitutional error was harmless beyond a

reasonable doubt (Chapman v. California (1967) 386 U.S. 18,

24).

Defendant did not dispute starting the fire that killed her

children and instead testified that she did not remember

starting it or sending letters that appeared to reference her

planned murder-suicide. There were significant reasons to

doubt her defense of experiencing a dissociative state that

rendered her unconscious on the night of the fire. Defense

experts gave different explanations for defendant’s condition, at

times contradicting each other. There was evidence that

defendant wrote letters, drove to the post office, and poured and

lit gasoline throughout her house, all while allegedly

unconscious. Defendant also displayed a selective memory of

the evening, remembering some events but not others.

Defendant’s son testified regarding her apparent planning for

the crime, describing her insistence that the children sleep

together in the kitchen the night she set the fire. The jury took

less than a day to reach its verdict.

The prosecution briefly referenced the discovery violations

in closing and argued that the defense was trying to obstruct the

prosecution’s preparation. We conclude, however, that when, as

here, the defense was “highly improbable,” the case was “not

close,” and the jury reached its verdict quickly, the erroneous

instruction was harmless. (Thomas, supra, 51 Cal.4th at

p. 484.)

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8. Failure to instruct on lesser included offenses

Defendant contends the trial court erred by failing to

instruct the jury on involuntary manslaughter as a lesser

included offense of murder. She claims the jury could have

(1) concluded that she was unconscious due to her voluntary

intoxication or (2) found her guilty of a misdemeanor for

unlawfully causing a fire, and that either of these findings

supported the lesser included offense of involuntary

manslaughter. We reject these claims.

Investigators found two beer bottles and two wine cooler

bottles in defendant’s trash following the fire. Defendant

testified that she did not remember how much she drank and

her friend also “had a couple of drinks” while at her house. The

trial court found no evidence that defendant was unconscious

due to her ingestion of alcohol. Defense counsel initially sought

an involuntary manslaughter instruction but later argued the

instruction was not warranted because defendant did not

anticipate the use of prescription medication would cause

delirium or unconsciousness, a result experts explained was

quite rare.

The trial court did not give an involuntary manslaughter

instruction but instructed the jury to consider defendant’s

voluntary intoxication in deciding whether defendant possessed

the required specific intent or mental state at the time of the

charged crimes and special circumstances. The trial court also

instructed the jury that if defendant was not conscious but

acting “while asleep or while suffering from a delirium, a fever,

or because of an attack of epilepsy, a blow on the head, the

involuntary taking of drugs, or the involuntary consumption of

intoxicating liquor, or any similar cause” she could not be found

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guilty.

Defense counsel requested instruction on the lesser

included offense of arson, arguing that defendant could be found

guilty of negligently spilling gasoline, a misdemeanor. The trial

court found no evidence to support a lesser included offense and

rejected counsel’s argument as “ridiculous.”

“A trial court must instruct the jury on a lesser included

offense, whether or not the defendant so requests, whenever

evidence that the defendant is guilty of only the lesser offense is

substantial enough to merit consideration by the jury.” (People

v. Halvorsen (2007) 42 Cal.4th 379, 414, fn. omitted.) The

obligation to give an instruction on lesser included offenses

exists even when a defendant expressly objects to it. (People v.

Souza (2012) 54 Cal.4th 90, 114.) We review de novo the trial

court’s determination. (People v. Cole (2004) 33 Cal.4th 1158,

1218.)

Involuntary manslaughter is “the unlawful killing of a

human being without malice . . . in the commission of an

unlawful act, not amounting to a felony; or in the commission of

a lawful act which might produce death, in an unlawful manner,

or without due caution and circumspection.” (§ 192, subd. (b).)

“Unconsciousness, if not induced by voluntary

intoxication, is a complete defense to a criminal charge.” (People

v. Halvorsen, supra, 42 Cal.4th at p. 417; see also Penal Code,

§ 26.) However, “[w]hen a person renders himself or herself

unconscious through voluntary intoxication and kills in that

state, the killing is attributed to his or her negligence in self-

intoxicating to that point, and is treated as involuntary

manslaughter.” (People v. Ochoa (1998) 19 Cal.4th 353, 423;

People v. Rangel (2016) 62 Cal.4th 1192, 1227.) Intoxication

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may not be voluntary when an individual used prescription

medication but “did not know or have reason to anticipate the

drug’s intoxicating effects.” (People v. Mathson (2012)

210 Cal.App.4th 1297, 1313; see also People v. Chaffey (1994)

25 Cal.App.4th 852, 856.)

A person is guilty of arson when “she willfully and

maliciously sets fire to or burns . . . any structure, forest land,

or property.” (§ 451.) A person is guilty of “unlawfully causing

a fire” when she “recklessly sets fire to or burns or causes to be

burned, any structure, forest land or property.” (§ 452.) Under

section 452, it is a felony to unlawfully cause a fire that results

in great bodily injury (§ 452, subd. (a)), burns an inhabited

structure or inhabited property (§ 452, subd. (b)), or sets fire to

a structure or forest land (§ 452, subd. (c)), and it is a

misdemeanor to cause a fire to property (§ 452, subd. (d)).

We conclude there was insufficient evidence to support an

involuntary manslaughter instruction based on voluntary

intoxication. There is no substantial evidence of alcohol

intoxication; instead, the record reflects that defendant

consumed “relatively small amounts of alcohol” (People v.

Flannel (1979) 25 Cal.3d 668, 685) and no evidence suggested

that it affected her consciousness. As defense counsel argued,

any intoxication defendant experienced from prescription

medications was involuntary as a matter of applicable law if

defendant was unaware of a potentially intoxicating and rare

drug interaction. (People v. Chaffey, supra, 25 Cal.App.4th at

p. 856.) The trial court properly instructed the jury that

involuntary intoxication, if proved, would be a complete defense.

We also find no evidence to support a misdemeanor for

causing the fire. Even if we were to assume that unlawfully

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setting fire to the house is a lesser included offense of arson

(People v. Cole, supra, 33 Cal.4th at p. 1218) and that

defendant’s actions were reckless rather than willful, the

evidence established that a fire set to burn an inhabited

structure killed four children, thus constituting felonies under

section 452. Although we have recognized that “an

unintentional homicide committed in the course of a

noninherently dangerous felony may properly support a

conviction of involuntary manslaughter” (People v. Burroughs

(1984) 35 Cal.3d 824, 835), setting fire to an inhabited structure

“ ‘by its very nature . . . cannot be committed without creating a

substantial risk that someone will be killed’ ” (People v. Howard

(2005) 34 Cal.4th 1129, 1135–1136) — and is hence inherently

dangerous (see Cole, at p. 1218).

9. Lying-in-wait special circumstance

Defendant initially contends the lying-in-wait special

circumstance is unconstitutional because it fails to adequately

perform the narrowing function required by the Eighth

Amendment. We have repeatedly rejected this claim (People v.

Smith (2018) 4 Cal.5th 1134, 1178; People v. Delgado (2017)

2 Cal.5th 544, 576; People v. Casares (2016) 62 Cal.4th 808, 849),

and decline to reconsider the issue here. Defendant also argues

that the evidence at her trial was insufficient to support the

lying-in-wait special circumstances because the jury would have

had to speculate about the timing of relevant events to find those

allegations true. We reject this argument as well.

“To determine whether the evidence supports a special

circumstance finding, we must review ‘ “the entire record in the

light most favorable to the judgment to determine whether it

discloses evidence that is reasonable, credible, and of solid value

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such that a reasonable jury could find” ’ the special circumstance

allegation true ‘ “beyond a reasonable doubt.” ’ ” (People v.

Becerrada (2017) 2 Cal.5th 1009, 1028.)

At the time of defendant’s crime, “the special circumstance

of murder while lying in wait (former § 190.2, subd. (a)(15))

required ‘an intentional murder, committed under

circumstances which include (1) a concealment of purpose, (2) a

substantial period of watching and waiting for an opportune

time to act, and (3) immediately thereafter, a surprise attack on

an unsuspecting victim from a position of advantage.’ ” (People

v. Casares, supra, 62 Cal.4th at p. 827.) “ ‘ “If there is a clear

interruption separating the period of lying in wait from the

period during which the killing takes place, so that there is

neither an immediate killing nor a continuous flow of the

uninterrupted lethal events, the special circumstance is not

proved.” ’ ” (People v. Streeter (2012) 54 Cal.4th 205, 248.)

Evidence is insufficient to support a lying-in-wait special

circumstance when the theory of surprise requires a specific

sequence of events that “cannot be pinpointed” by the evidence.

(People v. Carter (2005) 36 Cal.4th 1215, 1262; see also People v.

Becerrada, supra, 2 Cal.5th at p. 1029.)

Defendant argues that evidence of lying in wait was

insufficient because the evidence did not establish when the fire

began or what defendant was doing immediately before it

started. Given the evidence, however, “the jury could

reasonably find no lapse in defendant’s culpable mental state

between the homicide and the period of watchful waiting.”

(People v. Streeter, supra, 54 Cal.4th at p. 249.)

On the night of the fire, defendant announced a “slumber

party” in the kitchen, which was unusual. Defendant’s son,

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F.D., did not want to sleep in the kitchen but she insisted.

During the evening, defendant wrote and mailed letters that

appeared to reveal a plan to kill herself and her children. F.D.

did not think he had been asleep for very long when he and his

sisters woke up coughing from the fire and his mother told them

to stay where they were. From this evidence the jury could

reasonably find a “continuous flow” of lethal events in which

defendant concealed her purpose and waited until her children

fell asleep so that she could set a fire to kill them and herself.

This satisfies the elements of the charged lying-in-wait special

circumstances.

10. Arson-murder special circumstance

Defendant contends the evidence was insufficient to

support the “independent felonious intent required for the

arson-murder special circumstance.” (People v. Mendoza (2000)

24 Cal.4th 130, 183 (Mendoza).) “The requirement of an

independent felonious purpose applies to felony-murder special-

circumstance findings under section 190.2, subdivision (a)(17).

[Citation.] This subdivision authorizes a special circumstance

finding when the murder ‘was committed while the defendant

was engaged in . . . the commission of [or] the attempted

commission of’ various other specified felonies. (§ 190.2, subd.

(a)(17).)” (People v. Powell, supra, 5 Cal.5th at p. 953.)

As we explained in Mendoza, “[a] felony-murder special

circumstance, such as arson murder, may be alleged when the

murder occurs during the commission of the felony, not when

the felony occurs during the commission of a murder.

[Citations.] Thus, to prove a felony-murder special-

circumstance allegation, the prosecution must show that the

defendant had an independent purpose for the commission of

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the felony, that is, the commission of the felony was not merely

incidental to an intended murder.” (Mendoza, supra, 24 Cal.4th

at p. 182.) “Concurrent intent to kill and to commit an

independent felony will support a felony-murder special

circumstance.” (Id. at p. 183; see also People v. Raley (1992)

2 Cal.4th 870, 903.) We must therefore determine whether,

viewing the evidence in the light most favorable to the

prosecution, “any rational trier of fact could have concluded that

defendant had a purpose for the arson apart from the murder.”

(Mendoza, at p. 183.)

Defendant argues that the prosecution was required to

show that she committed murder “to advance” the independent

purpose of committing arson, citing People v. Green (1980)

27 Cal.3d 1, 61. In Green, we concluded that a murder “to

advance an independent felonious purpose” satisfied special

circumstance requirements whereas a felony “merely incidental

to the murder” did not. (Ibid.) We have explained, however,

that “[t]here is nothing magical about the phrase ‘to carry out or

advance’ the felony.” (People v. Horning (2004) 34 Cal.4th 871,

908.) A jury “ ‘ “is not required to assign a hierarchy to the

defendant’s motives . . . [and] need only determine whether

commission of the underlying felony was or was not merely

incidental to the murder.” ’ ” (People v. Powell, supra, 5 Cal.5th

at p. 955.)

Here, there is substantial evidence from which the jury

could have concluded that defendant’s “purpose for the arson

apart from the murder” was suicide. (Mendoza, supra,

24 Cal.4th at p. 183.) In a note to her ex-husband sent just

before the fire, defendant wrote, “Now you don’t have to support

any of us!” She sent a letter to her ex-boyfriend at the same

time, stating, “I can’t live without you in my life.” After lighting

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gasoline throughout the house, defendant lay down with her

children and stayed with them while the fire and smoke

overwhelmed them; at one point when he regained

consciousness, defendant’s son saw that she was unconscious on

the floor with his sisters. In her testimony, defendant

acknowledged that she had contemplated suicide most of her

life.

Because killing oneself is a purpose separate from killing

one’s victims, we conclude the evidence is sufficient to establish

that defendant committed arson with “independent, albeit

concurrent, goals” of killing herself and killing her children.

(Mendoza, supra, 24 Cal.4th at p. 183.)

Defendant also argues that the arson-murder special

circumstance instructions regarding the “independent felonious

purpose” requirement were confusing and misleading and failed

to adequately advise the jury of the applicable law. The trial

court modified CALJIC No. 8.81.17, adding a sentence to

indicate that the arson-murder special circumstance could be

established when there was a concurrent intent to kill and to

commit arson: “To find that the special circumstance referred

to in these instructions as murder in the commission of arson is

true, it must be proved: (1) the murder was committed while the

defendant was engaged in the commission of arson, and; (2) the

murder was committed in order to carry out or advance the

commission of the crime of arson, or to facilitate the escape

therefrom, or to avoid detection. Moreover, this special

circumstance is still proven if the defendant had the separate

specific intent to commit the crime of arson, even if she also had

the specific intent to kill. In other words, the special

circumstance referred to in these instructions is not established

if the arson was merely incidental to the commission of the

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murder.”

Defendant acknowledges that the added, italicized

language was a correct statement of the law, but argues that, as

a whole, the instruction misled the jury into thinking that a

concurrent intent to commit arson and to kill could mean that

the arson was not “merely incidental” to the murder. If the

jurors reached this conclusion, and they apparently did, it was

permissible under the law. “We have repeatedly held . . . that a

defendant’s possession of the intent to kill concurrently with the

intent necessary to support a predicate felony does not

necessarily render commission of the predicate felony incidental

to the murder.” (People v. Powell, supra, 5 Cal.5th at 954.)

We reject defendant’s claim that the instruction allowed

the jury to find the arson-murder special circumstance true

without finding a separate and independent purpose for

committing arson. “[W]e have never suggested that . . . any

precise language was required to explain the concept [of

independent felonious purpose] to the jury” (People v. Horning,

supra, 34 Cal.4th at p. 908), and we find that the instruction

given here adequately conveyed the applicable law and

requirements of the arson-murder special circumstance.

Defendant argues that the modified instruction given to

her jury was deficient for the same reasons we found to be error

in People v. Brents (2012) 53 Cal.4th 599, 613 (Brents). There,

the trial court modified the standard instruction, CALJIC

No. 8.81.17, so that it referred to two different target offenses,

assault by force and kidnapping. In that context, the first and

second sentences of the second paragraph did not refer to the

same target offense and created confusion about what findings

were required. (Brents, at p. 613.) There could have been no

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such confusion here. The instructions focused on the proper

predicate felony — arson — and correctly informed the jury that

“the special circumstance referred to in these instructions is not

established if the arson was merely incidental to the commission

of the murder.” The danger in Brents, that the jury may have

found the special circumstance satisfied without finding true the

correct predicate felony, was not present in this trial.

C. Penalty Phase Issues

Defendant raises evidentiary challenges to the penalty

phase of the trial and contends the death penalty was

disproportionate to her individual culpability. Because we

ultimately reverse the penalty verdict due to the trial court’s

misconduct, we need not address each of these challenges.

(People v. Peterson (2020) 10 Cal.5th 409, 477.) Instead, we

discuss here the errors that shed light on the trial court’s

misconduct — improper exclusion of mitigating evidence and

erroneous instruction regarding discovery violations — and

address their prejudicial impact in our analysis of the judicial

misconduct claim.

1. Exclusion of mitigation evidence

Defendant claims the trial court erred when it excluded

evidence related to neuropsychological testing and PET scan

results, and erred when it sustained objections to lay witness

testimony about defendant’s good character. We agree that the

trial court’s exclusion of this evidence was error.

“ ‘The Eighth and Fourteenth Amendments require the

jury in a capital case to hear any relevant mitigating evidence

that the defendant offers, including “ ‘any aspect of a

defendant’s character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sentence

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less than death.’ ” ’ ” (People v. Rogers (2013) 57 Cal.4th 296,

346.) “However, while the range of constitutionally pertinent

mitigation is quite broad [citation], it is not unlimited.” (Carasi,

supra, 44 Cal.4th at p. 1313). Trial courts retain the authority

to “ ‘apply[] ordinary rules of evidence to determine whether

such evidence is admissible’ ” (People v. McDowell (2012)

54 Cal.4th 395, 434) and “to exclude, as irrelevant, evidence that

has no logical bearing on the defendant’s character, prior record,

or the circumstances of the capital offense” (Carasi, at p. 1313).

a. Neuropsychological testing expert

Defendant contends the trial court violated her rights

under the Eighth and Fourteenth Amendments when it

excluded testimony by Dr. Kyle Boone regarding defendant’s

neuropsychological test results and cognitive impairment.

i. Background

Before the penalty phase began the trial court noted that

jurors were “getting a little antsy.” After excusing an alternate

juror for preplanned travel, and after hearing of a sitting juror’s

personal scheduling problems, the trial court worried about

losing jurors and stated its belief that “penalty phase witnesses

should not take very long.”

On the first day of defense testimony, counsel informed

the court and prosecutors that he would be calling a new

neuropsychological expert, Dr. Kyle Boone, that afternoon. Dr.

Boone’s report acknowledged that Dr. Humphrey used incorrect

normative data but concluded that the testing revealed

“consistent evidence” of defendant’s impaired memory, frontal

lobe skills, and math ability, but otherwise showed average

scores and intelligence. The defense estimated Dr. Boone’s

testimony would take about 45 minutes and would rehabilitate

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Dr. Humphrey’s findings, show the impact of defendant’s

impairment on her life, evoke sympathy, and explain, if not

excuse, the crime.

The prosecutors strenuously objected to Dr. Boone’s

testimony. They argued that Dr. Humphrey’s testimony had

already addressed section 190.3, factor (k) evidence and that

they would need a lengthy continuance to prepare if Dr. Boone

testified.

The trial court ruled that Dr. Boone’s testimony would be

cumulative, “take days,” and involve an undue consumption of

time, noting that, at any rate, Dr. Boone would not be allowed

to testify about how Dr. Humphrey obtained the wrong

normative data because such testimony would be speculative.

ii. Analysis

In excluding Dr. Boone’s testimony, the trial court

implicitly engaged in analysis under Evidence Code section 352

and found that concerns regarding delay “substantially

outweighed” the probative value of the evidence. (Evid. Code,

§ 352; People v. Villatoro (2012) 54 Cal.4th 1152, 1168.) A trial

court may exclude from the penalty phase “ ‘ “particular items

of evidence” . . . [that are] misleading, cumulative, or unduly

inflammatory.’ ” (People v. Smith (2005) 35 Cal.4th 334, 357),

although evidence “ ‘identical in subject matter to other

evidence should not be excluded as “cumulative” when it has

greater evidentiary weight or probative value.’ ” (People v.

McKinnon (2011) 52 Cal.4th 610, 669; see also Skipper v. South

Carolina (1986) 476 U.S. 1, 8).

Defendant cites People v. Lucero (1988) 44 Cal.3d 1006, in

support of her claim that she was entitled to have the jury

consider Dr. Boone’s testimony. There, we addressed the

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exclusion of expert testimony about a defendant’s mental

condition in the penalty phase. Although one defense expert

was allowed to testify about the condition, we declined to find

similar testimony by a second expert cumulative when there

was “considerable debate” regarding the methods by which the

first examiner reached his conclusions. (Id. at pp. 1031–1032.)

We also observed that when the prosecution seeks to impeach

the testimony of the first defense expert, it might be “very

important for defendant to be able to show that not only one, but

two mental health experts” had reached the same conclusion.

(Id. at p. 1031.)

Dr. Humphrey was the only expert to testify about

cognitive impairment that may have been related to defendant’s

childhood abuse and seizures. The People argue that Dr.

Boone’s testimony was properly excluded because it would have

merely repeated Dr. Humphrey’s conclusions. As defendant

argued, however, Dr. Boone’s testimony would have addressed

defendant’s mental condition as a mitigating factor and was

therefore distinct from evidence presented in the guilt phase.

Furthermore, impeachment and rebuttal of Dr. Humphrey’s

testimony raised significant questions about her credibility. (Cf.

People v. Kennedy (2005) 36 Cal.4th 595, 632.) Testimony from

Dr. Boone had the potential to carry greater evidentiary weight

and was not merely cumulative. (People v. McKinnon, supra, 52

Cal.4th at p. 669; People v. Lucero, supra, 44 Cal.3d at p. 1031.)

The probative value of Dr. Boone’s testimony was also

relatively substantial, given that expert assessment of

neuropsychological test data was both necessary and relevant to

establishing mitigating factors related to defendant’s mental

functioning. (People v. Steele (2002) 27 Cal.4th 1230, 1282–

1283.) The high court has reiterated that “ ‘ “defendants who

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commit criminal acts that are attributable . . . to emotional and

mental problems, may be less culpable than defendants who

have no such excuse.” ’ ” (Abdul-Kabir v. Quarterman (2007)

550 U.S. 233, 251–252.) This concern is reflected in section

190.3, factor (k), which directs the jury to consider “ ‘any other

circumstance which extenuates the gravity of the crime,’ [and]

therefore allows consideration of any mental or emotional

condition.” (People v. Cox (2003) 30 Cal.4th 916, 966.) The

testimony was also probative of defendant’s state of mind under

section 190.3, factor (a). (People v. Guerra, supra, 37 Cal.4th at

p. 1154.)

We next consider whether undue consumption of time

“substantially outweighed” the probative value of Dr. Boone’s

testimony. (Evid. Code, § 352.) In People v. Fuiava (2012)

53 Cal.4th 622, we concluded the trial court did not err when it

excluded mitigation evidence regarding the settlement of

lawsuits that alleged misconduct by sheriff’s deputies and was

offered to support defendant’s reasonable fear of them. (Id. at

p. 723.) The probative value of such evidence depended on

establishing the merits of the lawsuits notwithstanding the

settlement, and we concluded the trial court acted well within

its discretion to prevent “trials within a trial” that would have

required an undue investment of time and “might have

unreasonably distracted the jury.” (Ibid.)

No such similar complications accompanied the

presentation of Dr. Boone’s testimony, which was directly

related to relevant mitigating considerations. The trial court

indicated that it would not allow Dr. Boone to address Dr.

Humphrey’s reasons for using improper normative data and

could have further limited other potentially distracting

testimony that focused on Dr. Humphrey’s reputation rather

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than defendant’s test results and functioning. The defense

estimated that direct testimony would take under an hour. The

trial court anticipated that the prosecution response and other

issues related to the testimony would extend the time needed to

a matter of days. The trial court worried about having to excuse

jurors, but three alternate jurors were available to “guard

against the risk of a mistrial [had] a juror become unable to

serve.” (People v. Cottle (2006) 39 Cal.4th 246, 258; see also

§ 1089; Larios v. Superior Court of Ventura County (1979)

24 Cal.3d 324, 332 [no legal necessity for mistrial when

alternate juror is available].)

“ ‘A trial court’s exercise of discretion under [Evidence

Code] section 352 will be upheld on appeal unless the court

abused its discretion, that is, unless it exercised its discretion in

an arbitrary, capricious, or patently absurd manner.’ ” (People

v. Johnson (2019) 8 Cal.5th 475, 521.) When “a specific statute

affects the extent and nature of a trial court’s discretion, we

examine a trial court’s actions in light of the specific law bearing

on that discretion.” (People v. Rodriguez (2016) 1 Cal.5th 676,

685.) Section 190.3 expressly authorizes the presentation of

“any matter” relevant to mitigation, including “defendant’s

character, background, history, mental condition and physical

condition” (§ 190.3), and a trial court’s discretion to limit

mitigating evidence is informed by this broad charge (see People

v. Spencer (2018) 5 Cal.5th 642, 680). In this context, we

conclude the trial court’s exclusion of relevant, non-cumulative,

expert testimony about defendant’s mental condition was an

abuse of discretion.

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