People v. Rodriguez (58 Cal. 4th 587, 2014)

Opinion

CHIN, J.

A jury convicted defendant Angelina Rodriguez of the first degree murder of her husband, Jose Francisco Rodriguez, under the special circumstances of murder by administering poison and murder for financial gain, and of one count of attempting to dissuade a witness. (Pen. Code, §§ 136.1, subd. (a)(2), 187, 190.2, subd. (a)(1), (19).) The jury was unable to reach a verdict on a charge of soliciting murder, and the court declared a mistrial on that count. After a penalty trial, at which the prosecution presented evidence that defendant had murdered her infant daughter several years previously, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. The Facts

A. Guilt Phase

1. Overview

The evidence showed that in September 2000, on her second attempt, defendant fatally poisoned her husband, Jose Francisco Rodriguez, by giving him drinks containing oleander and antifreeze, in order to collect on a life insurance policy she had insisted the two take out a few months earlier. Previously, she had tried to kill him by loosening natural gas valves in their garage. From her jail cell while awaiting trial for the murder, she attempted to dissuade a witness from testifying against her. Evidence was also presented that later she solicited that witness’s murder.

2. The Events Leading to the Victim’s Death

Defendant met her future husband, known as “Frank,” in February 2000, while they were employed at Angel Gate Academy (Academy) in San Luis Obispo. The Academy was a partnership program of the California National Guard and the Los Angeles Unified School District which hosted district students at a camp for a month. Defendant described the Academy to police investigators as a “four week boot type camp for troubled youth.”

Frank and defendant were married on April 8. Shortly after the wedding, Frank got a job teaching in the Los Angeles Unified School District, and they moved to Montebello. Defendant’s then nine-year-old daughter by a previous marriage, Autumn F. (Autumn), lived with them.

In July, defendant and Frank took out a $250,000 life insurance policy on Frank’s life from the Midland National Life Insurance Company. Defendant was named the primary beneficiary. Mickey Marracino, the agent who sold them the policy, testified that defendant had written to him in response to a direct mailing advertisement. He then called her to make an appointment to see them. Marracino met the couple at their home on July 15. Marracino heard Frank ask defendant “why she felt that they needed the insurance” in light of the fact that they were already covered at work and through the National Guard. Defendant explained to Frank the benefits of life insurance and why she felt they needed it. Frank still hesitated, but then told Marracino to “write it up.” Frank took the necessary physical examination on July 18, and the policy was approved on July 26. Frank and defendant also discussed insuring defendant’s life for $50,000, but that policy was never finalized.

Palmira Gorham, a friend of defendant’s during this time, testified that after the marriage, defendant often visited her in Paso Robles without Frank and expressed unhappiness with her marriage. Sometime around mid-June or mid-July, Gorham and defendant had a conversation at Gorham’s home in which defendant “was telling me how unhappy she was with Frank.” Gorham said jokingly, “Why don’t you divorce this one like you divorced all your other ones?” Defendant responded, “No, this one has got [a] life insurance policy,” and “[tjhat might be worth my time to do that.” She said something like, “If I were to kill him, at least I’d end up with a little bit of money.” Later, Gorham’s mother joined the conversation, and the two told defendant a story about a woman who had tried to kill her husband by giving him “oleander tea.” Gorham did not take the conversation seriously.

A day or so after this conversation, Gorham and her boyfriend spoke with defendant about a dog that had bitten Gorham’s son and Gorham’s frustration with the police response. At one point, the boyfriend commented that “we could just soak some hot dogs in antifreeze and throw it over the fence.” When defendant asked why, Gorham told her “that we had seen something on TV that antifreeze has like kind of a sweet taste and it’s really colorful, so it’s like bright pink or green, . . . and that children and animals, they would drink it without thinking twice.”

A couple of weeks later, when defendant was at her home in Montebello, Gorham spoke with her on the telephone. Gorham heard a blender running in the background and asked what defendant was doing. Defendant responded that “she was making Frank a special milkshake.” In the past, defendant had told Gorham that Frank liked to have milkshakes when he was ill. So Gorham asked defendant if Frank was sick. She responded, “Not yet.”

Loran Moranes was Gorham’s nephew, although he was older than she. He got out of jail on July 17 and began a relationship with defendant that became sexual on August 26. Defendant visited him regularly in Paso Robles, beginning while Frank was still alive. Moranes testified that about a week before Frank died, defendant was with him in Paso Robles. She told Moranes that she had “left some kind of gas on in the garage” in Montebello so that Frank “would die.” She said that “either there would be some kind of explosion in the house or he would go in there and pass out.”

Because he did not want to get involved, Moranes did not tell investigators about this conversation until July 2001, long after defendant’s arrest. When the investigators heard of this, they checked records from Southern California Gas Company, the company that serviced defendant’s home. The records showed that on September 3, the Sunday of Labor Day weekend, Frank had reported a gas leak at his and defendant’s Montebello home. Luis Aguilar, a company service technician, responded to the report and spoke with Frank. Aguilar found two gas leaks in the garage, one behind the clothes dryer and one on the water heater. The valve fitting on the dryer was “very loose,” which would not have happened on its own.

On Tuesday, September 5, the day after Labor Day, Frank traveled by bus to the Academy as a chaperone for students from his school who were to participate in the program there. After dropping the students off at the Academy, Frank returned home the same day. He had been a late addition to the group of teachers who accompanied the students, and his name was not placed on the list of teachers who were coming that was given to employees at the Academy.

On Thursday, September 7, Frank, accompanied by defendant, went to the emergency room at Kaiser Hospital in Baldwin Park complaining of vomiting and diarrhea. The treating physician diagnosed the cause as food poisoning. Defendant voiced no suspicion that Frank had been intentionally poisoned. The doctor discharged Frank that afternoon. When he did so, he wrote on a standard instruction sheet that Frank should drink a lot of fluids and, specifically, “drink Gatorade as a re-hydration.” Defendant signed the instructions, indicating that she had received them.

3. The Victim’s Death and Aftermath

At 3:19 a.m. on Saturday, September 9, Montebello Police Officer Stephen Sharpe, responding to a call from defendant’s home at 837 Marconi Street, found Frank’s body lying facedown on the carpet in the bedroom. He observed blood on the carpet that apparently came from the victim’s nose but could detect no apparent cause of death. Defendant identified the man as her husband. Officer Sharpe testified that defendant’s crying “seemed rehearsed or kind of forced”; “[although it was audible, the crying noise, there was a lack of tears, and as soon as I would talk to her, ask her a question, she would immediately kind of snap out of it and answer the questions real quick, and in my experience . . . usually someone who just lost their husband, they’re very difficult to speak with and communicate to.”

The initial autopsy did not reveal the cause of death. The body contained no sign of trauma. Frank was 41 years old when he died and had been in generally good health.

At 10:17 a.m., the morning Frank died, defendant called Marracino, the life insurance agent, and left a message for him to call her back. When he returned her call a short time later, she reported her husband’s death and inquired about getting the $250,000 payment on the policy on Frank’s life. Marracino informed her that the company would need an official death certificate showing the cause of death. He also explained that when the death occurs during the first two years after the policy was issued, the company will investigate the claim to determine if it is legitimate. During the conversation, Marracino noticed that defendant spoke without emotion. “It was sort of matter of fact the way she was talking to me and explaining everything. She didn’t cry, she didn’t hesitate in any way, she didn’t lose any train of thought. . . .”

Marracino reported Frank’s death to the insurance company the same day. He had several other conversations with defendant over the next few weeks in which she repeatedly asked when she would get paid. He kept advising her the company needed a cause of death.

Rebecca Perkins, Frank’s sister, who lived in Florida, learned of Frank’s death from her mother, Janet Baker. Around noon the day of his death (9:00 a.m. Cal. time), she telephoned defendant and asked what had happened. Defendant responded, “He drank too much.” Perkins was surprised because Frank did not drink alcohol. Defendant went on to say that Frank had been sick on Wednesday and Thursday, and she took him to the hospital on Friday. She said Frank had died of a “stomach infection.”

A short time after this conversation, Perkins called defendant again. This time, defendant told her that “the people at the Angel Gate Academy gave him cookies and Gatorade and that killed him.” She also said “that she thought it was the people at Angel Gate this time who had killed him, and months ago in June that it was the students at his middle school that had tried to poison him.” Regarding why someone at the Academy would want to kill Frank, defendant said “that she was terminated and she left on a bad note and therefore they didn’t like Frank and so they wanted to kill him.” Perkins testified that during both of these conversations, defendant “had no emotion.”

Frank’s other sister, Shirley Goers, spoke with defendant the day after his death. Defendant said she “wanted to cremate him and sprinkle his ashes on a beach that she said was their favorite place to go.” Later defendant told her that Frank might have a military burial. In another conversation, defendant told Goers that an officer at the Academy had killed Frank when Frank had gone there for a meeting. She said the officer “put some kind of poison in his cookies and Gatorade.” Goers asked defendant how someone could poison another person. Defendant said there are many ways; for example, one can make a tea with oleander. On Tuesday, September 19, Goers drove with defendant and others in a limousine to Frank’s funeral. On the way, defendant pointed at some bushes on the side of the road and said, “That’s oleander.”

Elaine Nash, an employee with the Midland National Life Insurance Company, spoke with defendant several times, beginning on September 28, regarding defendant’s efforts to collect the insurance money. Nash told defendant the company needed a death certificate stating a cause of death, and it would take about four to six weeks to process the claim after they received the certificate. She also explained that the company would conduct its own investigation because the death had occurred within two years of issuing the policy. Defendant told her the autopsy was being done but the toxicology had not been completed. Later, defendant asked Nash to fax her the claim forms. Nash said she could not do so in the case of a contested claim. Nash also declined defendant’s request to verify to a real estate agent that the funds would be available so she could buy a house. The company never paid the insurance benefits.

4. The Investigation

Montebello Police Detective Gregory Wilsey was the original investigator into Frank’s death. On September 11, the Monday after Frank died, he received a telephone call from defendant asking about the coroner’s office and how it would dispose of the body. He told her that the coroner had not determined the cause of death, and any information they could receive regarding what Frank might have ingested would help to narrow the possibilities. She told him that she believed someone at the Academy in San Luis Obispo might have poisoned him. She said that “earlier that year . . . they had . . . blown a whistle on somebody who had committed—suspected of child abuse on one of the students or children up there, and because of that some people got fired, some people got reassigned and she felt that there was some animosity towards her husband over that.” She said Frank had gone to the Academy some days before his death to chaperone disadvantaged youths who were going there. During this conversation, Detective Wilsey was struck by defendant’s lack of emotion.

On September 14, the case was referred to the Los Angeles County Sheriff’s Department and assigned to Detective Brian Steinwand and Sergeant Joe Holmes. Detective Steinwand testified that defendant had been a suspect in Frank’s death from the beginning, but they did not tell her that. They pretended to believe her story that someone at the Academy had poisoned Frank in order to try to get her to talk and provide information. In fact, they never suspected anyone at the Academy of poisoning Frank. Beginning on September 14, the investigators had numerous conversations with defendant that they surreptitiously tape-recorded. Relevant portions of several of the conversations were played to the jury.

Defendant told the investigators she believed a man at the Academy named Charles “Chad” Holloway had poisoned Frank. She said that she and Frank had blown the whistle on Holloway for inappropriate behavior with some of the students at the Academy. She said that on September 5, Frank had gone to the Academy as a chaperone. When he returned home, he told her that someone there had given him Gatorade and cookies. Defendant also talked about the life insurance policy and said that the company would not pay the claim until it had been advised of the cause of death. She asked if the investigators could help get the coroner’s office to do what was necessary to determine a cause of death so she could receive the money.

On September 26, Janet Baker, Frank’s mother, informed Sergeant Holmes that defendant had said something about oleander. This was the first mention of oleander as a possible poison in the case. Detective Steinwand informed the coroner’s office of the possibility of oleander poisoning. However, no test for oleander was conducted at that time, apparently because very few laboratories can perform such a test. A large oleander bush, easily accessible to defendant, grew over the fence in the backyard of her Montebello home.

During this time, defendant frequently asked the investigators about efforts to determine a cause of death because she wanted to collect the insurance money. The investigators explained that the coroner’s office had been unable to determine the cause of death, and that they needed to know what to look for as a possible poison. As a ruse, they stressed that it would be very useful to know what the poison might have been.

On October 19, before 9:00 a.m., while driving, Sergeant Holmes received a call on his cell phone from defendant’s cell phone. Defendant told him she had just received a telephone call. (Telephone records later showed that, in fact, defendant had not received any incoming telephone call on her cell phone that morning, before she called Sergeant Holmes.) Sergeant Holmes told her he would call her back. He did so when he returned to his office so he could record the conversation. Defendant told him that shortly after 8:00 a.m. that morning, she had received a telephone call while she was driving from a man who refused to give his name. She said the “caller ID” was blocked. The man told her he had talked with Holloway. Holloway had told him, “they can’t pin me.” The man also said, “Ask them about antifreeze.” Defendant "did not know how the man had gotten her cell phone number.

This was the investigators’ first information that antifreeze might have been involved. After this conversation, Sergeant Holmes asked the coroner’s office to check for antifreeze as a possible poison.

Dan Anderson, a toxicologist with the Los Angeles County Department of Coroner’s office, testified that the results of the initial tests on Frank’s body had been negative except for the presence of Vicodin. That created a problem, because when checking for the presence of drugs, one must look for something specific. There is no general toxicology test for everything. If a test for the most common drugs is negative, trying to determine what might be present is like “looking for a needle in a haystack.” For example, one must look specifically for ethylene glycol, the main chemical component of automotive antifreeze, in order to find it.

After defendant mentioned antifreeze to the investigators, specimens from Frank’s body were examined for ethylene glycol. All samples showed the presence of a fatal amount of that chemical. Later testing also showed the presence of oleander.

Dr. Richard Clark, a toxicologist with the poison center at the University of California, San Diego, testified that ethylene glycol is poisonous but tends to taste sweet and can easily be mixed with Gatorade. Oleander, commonly found along Southern California freeways, is also poisonous. It can be served as a tea and mixed with another liquid to disguise its bitter taste.

After examining documents in the case, Dr. Clark opined that Frank had died of ethylene glycol poisoning. Specimens from his body contained five and six times as much of the chemical as is needed to kill. Frank would have had to receive the fatal dose within 24 hours before his death and “most likely” within six to seven hours. After reviewing records from Frank’s September 7 visit to the hospital, Dr. Clark opined that Frank could not have had in his system at that time the ethylene glycol that his body later contained. Frank’s symptoms at that visit were consistent with oleander poisoning. Dr. Clark testified it was “hard to say” what role the oleander played in Frank’s death, although it could have “played a part.” Frank must have last ingested oleander within 24 hours before his death.

Dr. Ogbonna Chinwah, who had performed the original inconclusive autopsy, testified that he later reexamined the body and found evidence of ethylene glycol in the kidneys. In his opinion, Frank died of ethylene glycol and oleander poisoning.

On December 12, Detective Steinwand told defendant that he was going to question Holloway about the case. He did in fact speak with Holloway, but only to obtain his cooperation and not as a suspect. He arranged for Holloway to telephone defendant with the investigators surreptitiously listening. The next day, December 13, Holloway called her. Acting pursuant to instructions, Holloway asked her why she had told the “police that I poisoned Frank with antifreeze.” Defendant replied that he needed to talk with the investigators.

About one minute after this conversation ended, Sergeant Holmes received a “911 page” (meaning important) from defendant. He called her back. She told him she had just received a call from Holloway in which he said, “Well, they’ll never be able to—to catch me anyway,” and “You better watch you [szc] back.” In fact, Holloway had said nothing like that to her. Recordings of both December 13 conversations were played to the jury.

In December, the investigators informed defendant of the results of the antifreeze testing. In various conversations, defendant asked the status of the investigation regarding Holloway. As a mse, the investigators told her that one weakness in their case against Holloway was the lack of evidence that Holloway had known in advance that Frank would be coming to the Academy on September 5. Poisoning requires advance planning, they explained, and Holloway could defend against a poisoning charge by claiming he had not known Frank would be there that day. They stressed that it was important for them to obtain evidence that Holloway had received information in advance that Frank would be there.

On January 19, 2001, Sergeant Holmes told defendant that oleander had been found in Frank’s body, and that the cause of death and death certificate would be ready in a few weeks. Defendant asked if they had yet received any evidence that Holloway had known in advance that Frank was coming to the Academy on September 5. He told her they had not. She told him that when she worked “at admin,” she always received a fax saying who was coming.

On February 5, 2001, Sergeant Holmes received an anonymous fax addressed to him at the homicide bureau. It contained no cover sheet and indicated it had been sent from “Staples Store No. 702.” On the first page was written, “Urgent. Detective Holmes, I mailed this to you. Why is Chad still free? Thought maybe you did not get it. Here it is again.” The name “Chad” obviously referred to Holloway. The next two pages appeared to be a printed document concerning a faculty orientation at the Academy. On the second of these pages was the handwritten name “F. Rodriguez.”

Later, Sergeant Holmes received in the mail at work an envelope containing a copy of the same document he had received by fax on February 5, 2001, and a note stating, “I found this in second platoon’s locker, in Sergeant Holloway’s papers. I figured this is how he knew Sergeant Rodriguez was coming to SLO [(San Luis Obispo)]. I hope this helps fry the bastard.”

On February 6, 2001, the investigators drove to Paso Robles, where defendant had moved after Frank’s death, intending to arrest her. While driving, they received a page from her. Sergeant Holmes called her back. He told her about the fax he had received and said it was important for them to know who had sent it. She said she knew nothing about it. She also asked whether they were going to arrest Holloway. She added that she would like to be present when they did, “to see the expression on his face.”

After defendant’s arrest, the investigators searched her Paso Robles home pursuant to a search warrant. They found in her purse a piece of paper containing numbers and computations, apparently calculations regarding how she would spend the insurance money plus accumulated interest that she expected to receive, and a napkin on which was written the sheriff’s fax number, the number to which the anonymous fax received by Sergeant Holmes had been sent.

The purse also contained a fax confirmation sheet from Staples Store No. 702 and the original of the fax Sergeant Holmes had received on February 5, 2001. On this original, however, the handwritten name “F. Rodriguez” was in red. A forensic document examiner testified that this name was written in original red ink and was not a copy from some other document.

The Los Angeles school administrator who coordinated the Academy program testified that normally the school district would not provide the Academy with the names of teachers who merely accompanied the students to San Luis Obispo and returned the same day. She said the printed document in the fax Sergeant Holmes had received concerned a session that started on September 5. It contained the names of the teachers who would stay there but not of those who just rode the bus. The printed document would not normally contain a handwritten name like the one on the fax.

5. Defendant’s Arrest and Later Events

Detective Steinwand and Sergeant Holmes arrested defendant for Frank’s murder on February 7, 2001.

Evidence, including a tape-recorded telephone call that defendant made to Gorham on March 27, 2001, showed that, while in jail awaiting trial, defendant tried to dissuade Gorham from testifying against her. In the recorded conversation, defendant told Gorham that, based on what Gorham had told the investigators, she could be considered an accomplice in the case. She suggested that Gorham might be arrested if she did not change her story. Gorham responded that if she changed her story, “isn’t that just gonna make it look worse?” Defendant said that people “retract it all the time.” She said Gorham could say she had “found me with Conrad” (Gorham’s boyfriend). She added, “That would be enough for you to snap.” She also said that “this is getting bigger than anybody can imagine, and it doesn’t need to be. Do you see what I’m saying?” She reiterated that Gorham “knew what I was doing, and you didn’t stop me.” When Gorham noted that she had not been arrested, defendant said, “They’re still investigating,” and “They’re still asking a lot of people questions.”

Other evidence showed that in May 2002, while still in jail awaiting trial, defendant tried to solicit fellow inmate Gwendolyn Hall to arrange Gorham’s murder when Hall was released from jail. Defendant first offered to pay $20,000 for Gorham’s murder, then increased the offer to $30,000.

6. Defense Evidence

Defendant cross-examined prosecution witnesses and, through stipulation, presented evidence regarding telephone calls between defendant’s home and Gorham’s home during the Labor Day weekend of 2000. The apparent purpose of the stipulations was to impeach parts of Loran Moranes’s testimony.

B. Penalty Phase

1. Prosecution Evidence

The prosecution presented evidence that defendant murdered her infant daughter in 1993 and additional evidence that she solicited Gorham’s murder.

a. Death of Defendant’s Daughter

On September 18, 1993, defendant’s 13-month-old daughter Alicia E (Autumn’s younger sister) choked to death on a pacifier manufactured by the Gerber Products Company (Gerber) in her crib in the family’s home in Lompoc. Defendant’s husband at the time, Thomas F. (Thomas), Alicia’s father, was on a business trip, and defendant was the only adult in the house when Alicia died.

Santa Barbara County Firefighter David Mandeville was the first to respond to an emergency call at defendant’s home just before noon that day. When he arrived, defendant was waiting for him outside. Mandeville found this unusual because normally regarding calls “where a child or infant is choking, the parents are with the child.” Alicia was in her crib not responding. He found a piece of plastic in the baby’s throat and, with an effort, was able to “pop it out.” The plastic was the rubber nipple part of a pacifier. Mandeville unsuccessfully applied cardiopulmonary resuscitation to try to revive the baby. He turned the baby over to paramedics as soon as they arrived.

Deputy Sheriff Ralph Ginter responded shortly after Mandeville. He found the plastic backing of the pacifier in the crib and the rubber nipple on the floor. He accompanied defendant to the hospital. After defendant was told that her baby had died, she asked to obtain the pacifier backing, saying “that she wanted to keep it, that the manufacturer or company that she purchased it from is going to pay, and she didn’t want this to happen to another child.” Deputy Ginter wrote in Ms report at the time that defendant was “adamant” about wanting to obtain the pacifier backing. He released it to her at the hospital.

Dr. Wallace Carroll, the pathologist who presided over the autopsy, testified that Alicia died of “asphyxiation due to airway obstruction,” that is, she choked to death. Alicia had two teeth—the two lower front teeth.

Two months before the baby died, defendant had insured the baby’s life for $50,000, and named herself as the primary beneficiary. Defendant did not name Thomas as a beneficiary and did not tell him about the policy until after the baby had died. On October 22, 1993, the insurance company paid the $50,000, plus interest.

Thomas testified that in late 1992 or early 1993, while vacationing in MicMgan, he and defendant were eating in a restaurant with their daughters. Another customer noticed the pacifier in Alicia’s mouth and “said that she wanted to let us know that she was'pretty sure that that pacifier was part of a recall.” In fact, in March 1993, Gerber had voluntarily recalled the pacifier on which Alicia choked based on five consumer reports that it had separated into tMee pieces.

Shortly after Alicia died, Thomas and defendant consulted a local attorney about suing Gerber. Ultimately, they retained Attorney Barry Novack to represent them. Novack filed a lawsuit on their behalf against Gerber for Alicia’s wrongful death due to the failure of the company’s pacifier. He obtained the actual pacifier, which was in two pieces. Novack sent both pieces to Dr. Wolfgang Knauss, a professor at the California Institute of Technology (Caltech), for examination. Dissatisfied with Dr. Knauss’s report, he next sent the pieces to Dr. Gary Hamed, a professor at The University of Akron, for a second opinion. The defendant in the lawsuit, Gerber, never learned of Dr. Knauss’s opinion.

In March 1996, after defendant and Thomas had divorced, Gerber settled the lawsuit by paying $710,000. Defendant received 60 percent and Thomas 40 percent of what remained after deducting Novack’s fee and expenses. Defendant received more than Thomas because she had been present at Alicia’s death and suffered emotional trauma.

When Detective Steinwand searched defendant’s home after her arrest, he found a copy of Dr. Knauss’s report containing the results of his examination of the pacifier. As a result of tMs discovery, Detective Steinwand investigated further into the circumstances of Alicia’s death.

Dr. Knauss testified as an expert regarding the “failure and fracture of polymers, which includes rubbers.” In 1994, Barry Novack asked him to examine the two pieces. He did so and prepared a report containing his findings and opinion. At trial, Dr. Knauss described the two pieces he examined. “A pacifier is typically made up of what one . . . calls the shield, which is the hard part that stays in front of the mouth. Then something some people refer to as the baglet or the nipple, which is in the baby’s mouth, and the nipple is characteristically out of a natural clear looking rubber, and in this case the nipple part had broken off away from the hard part, the shield, close to the shield.” Specifically, the separated nipple had “broken off or tom off” from part of the nipple that remained attached to the shield. The distance from the shield to the point of the rapture, where the separated nipple had tom away, was short, approximately two or three millimeters.

In Dr. Knauss’s opinion, the fracture he observed between the two pieces could not have been caused either by a baby chewing through the pacifier or a baby’s repeated sucking action. He based this opinion on the nature and pattern of the tear, the amount of force necessary to cause it, and the fact the tear was near the shield rather than on some part of the nipple a baby would actually touch. Based on his visual and microscopic examination of the pacifier, he believed that “some external trauma or tool was responsible for failing this nipple.” One possibility was “something rolling over this, some external agent that caused large force in that region, that would be responsible for this kind of complex fracture pattern.” He said, “it might happen when a chair or some hard object rolls over the pacifier like this. That might be the cause.” A tool such as pliers could also have caused the tear.

Dr. Knauss was aware that Dr. Hamed believed the nipple might have had an initial cut that a baby’s normal use could have exacerbated, causing the rubber’s complete separation. Dr. Knauss believed this was not possible due to the large amount of force that would have been needed to cause the separation. In his opinion, “the ultimate failure as it now appears and documented in these photographs is not consistent with that scenario.”

The prosecution presented portions of defendant’s deposition testimony in the lawsuit against Gerber. She testified that she had checked the pacifier when she first received it to “ma[k]e sure there’s no cracks or evidence of wearing.” About once a week she tested the pacifier’s bulb by pulling on it.

b. Solicitation of Murder While in Jail

The prosecution played for the jury tapes of jail conversations between inmate Gwendolyn Hall and defendant on May 10 and 11, 2002, that were recorded with Hall’s cooperation, in which defendant solicited Gorham’s murder.

In the May 10 conversation, defendant told Hall “they could do it one of two ways. They could do it robbery gone bad, or they can make it look like a boyfriend gone mad.” Defendant gave Hall the address of and directions to Gorham’s home in Paso Robles. When Hall asked how she would be paid, defendant responded that “this is one thing I’m trying to figure out, the best way to, you know to transport or transfer it because I don’t want it to look ... all of a sudden 25 grand is out my account.” She said she was considering “taking a trip to Vegas” because “that would easily show why I would pull out that much—kind of money.” Defendant added that the “house is so old that if it blew up, from a gas leak or something, it wouldn’t surprise anybody.” She also said that “for somebody to go in and shoot them in the head while they’re sleeping would not be . . . surprising.” A pillow could be used to “muffle[] the sound.” She said there was an alley behind the house they could use to get away. Hall and defendant agreed that when the job was finished Hall should send defendant a “little girl card” signed “happy birfday, love, Cuz.” (The misspelling was intentional so the message would be clear.)

In the May 11 conversation, defendant asked Hall whether “these guys” would be “bright enough” to figure out how to make it look like a suicide. She discussed other ways to kill Gorham, such as “doing an overdose,” using cyanide, or making a gunshot “look self-inflicted.” She suggested that Hall drive because “they need a brain.” “They’re going to have to have somebody to tell them go do this.” She added, “It’s your investment. Put it that way. It’s your decision.” They again discussed how Hall would be paid. Defendant also suggested they go to Gorham’s house in the morning and watch her leave to “take her kids to school.” “This way when she comes back you know she’s by herself.”

Los Angeles County Sheriff’s Detective Patrick Valdez, who was assigned to investigate this matter, had heard from Hall that defendant might also be soliciting others to kill Gorham. Anxious to prevent Gorham’s murder, he decided to try to convince defendant that the murder had been accomplished. On May 21, 2002, he instructed Hall to tell defendant that she had found someone to “act as a middleman between the hit man and Hall.” He gave Hall the fictitious name of “Antonio Davis” as the middleman with a fictitious address. That same day, defendant released $60 from her jail account to “Antonio Davis.”

At Detective Valdez’s direction, Detective Steinwand and another officer drove to Paso Robles where, with Gorham’s cooperation, they took photographs of her apparently dead body with a fake gunshot wound in the head and fake blood. Detective Valdez also arranged to have Detective Jose Mejia, posing as Antonio Davis, the fictitious middleman, speak with defendant at the jail on June 8, 2002. The approximately half-hour interview was videotaped and played to the jury.

In the jail conversation, defendant and Detective Mejia (posing as Antonio Davis) sat divided by a plexiglass window and spoke through a telephone. In addition to speaking with one another, they communicated by writing notes and displaying them through the window, something jail inmates often did because they knew their conversations might be monitored. Defendant wrote separate notes on a single sheet of paper that she folded so that only one note at a time could be read.

Detective Mejia showed defendant two photographs of Gorham’s apparently dead body. He then held up a note saying, “How do you want to take care of it? These guys are asking about the money.” Defendant wrote a note back saying, “I thought Gwen [(obviously Gwendolyn Hall)] stopped it.” Then she displayed a second note saying, “My star witness.” Later she wrote, “Best friend of 6 years.” Verbally defendant stated, “This is what I told her.” She then displayed a note saying, “When out as soon as insurance in—About 45 days I give to Gwen.” Later, she verbally stated, “I think that’s about as long as it takes,” and displayed another note saying, “It’s up to how long insurance takes.” Defendant displayed another note saying, “I thought she was joking,” then showed again the note saying, “My star witness.”

After the conversation, defendant was searched, and the piece of paper on which she had written the notes was seized. An address book containing Antonio Davis’s fictitious address was also found in her possession.

2. Defense Evidence

Defendant presented evidence of two kinds: (1) evidence intended to cast doubt on whether she had murdered her daughter and (2) evidence in mitigation.

Dr. Gary Hamed testified as an expert on “fracture adhesion of rubbery materials, particularly a natural rubber.” In 1995 or 1996, he tested the two pieces of the pacifier in the wrongful death case at Attorney Novack’s request. In his opinion, the rubber would not have failed as it did if it had not already been “degraded in some way.” He believed that three of the baby’s forces could have combined to cause the pacifier to fail completely: sucking, a clamping and pulling, and the work of the teeth. Dr. Hamed disagreed with Dr. Knauss’s contrary opinion.

Autumn, defendant’s daughter, testified, “I would like it for you [(the jury)] not to execute [her mother] and make it so I can see her.”

Anita Rivera, defendant’s mother, and Gigiana Colaiacovo, her older sister, testified about defendant’s unhappy life and family background. Colaiacovo testified that her grandfather had sexually molested her. When she refused his later advances, it appeared he molested defendant instead. Colaiacovo said, “My sister is a good person.” Both witnesses asked the jury to spare defendant’s life so they could continue to have a relationship with her.

A defense investigator testified about the defense’s failed efforts to interview and obtain the cooperation of defendant’s father in New York.

Dr. William Vicary, a psychiatrist, testified about defendant’s mental state. To prepare his evaluation, he interviewed several people, including defendant’s mother, sister, and cousin, and defendant herself. Defendant described to him sexual abuse she had suffered from various people, including her grandfather. Based on these interviews, Dr. Vicary believed defendant was a victim of sexual abuse, and that this abuse had had a majorly negative impact on her. He also testified that he had found defendant “to be the most emotional and the most animated when she was talking about her children. She said in all her life, none of her relationships had ever worked, and that she had only two happy experiences, the birth of her two little girls.” History that her relatives supplied indicated that “defendant was a very attentive, loving, supportive mother.” In Dr. Vicary’s opinion, defendant “would be a model prisoner who would get along with the guards and the other prisoners in the institution.”

II. Discussion

A. Pretrial Issues

Defendant raises several issues regarding primarily pretrial events.

1. Factual Background

Defendant was arrested on February 7, 2001. On February 27, 2001, the court appointed the public defender to represent her. On April 17, 2001, the superior court issued orders terminating defendant’s telephone privileges in jail and ordering the sheriff’s department to monitor her visits. The order was based on a declaration by Detective Steinwand providing information about defendant’s attempts to dissuade Gorham from testifying, including her tape-recorded call to Gorham on March 27, 2001. On April 24, 2001, the court ordered the sheriff to allow defendant’s attorney to have face-to-face interviews with her and to play tapes of recorded conversations and interviews regarding the case. On April 26, 2001, the court also ordered the sheriff to provide to defendant “a set of thermal underwear which is to cover her upper and lower body, in order to help prevent further coughing and colds.”

On September 26, 2001, defendant retained Attorney M.R. Ward to represent her in place of the public defender.

Later defendant moved to lift the telephone restrictions. On December 14, 2001, the eventual trial judge, the Hon. William R. Pounders (who was to preside over all further proceedings in the case), conducted a hearing on the motion. Defendant said she was “seeking replacement counsel” and needed telephone access. The prosecutor stated that, due to defendant’s “misuse of the phones in the past, she has been placed in a part of the Twin Towers jail facility where she has no access to telephones.” Defense counsel requested an order permitting defendant limited telephone access to her lawyer. The parties discussed whether the sheriff’s department had the resources to permit defendant to call her lawyer while ensuring that she would not be able to use the telephone to speak with others. While recognizing the need to prevent defendant from continuing to dissuade witnesses, the court stated, “I think the first choice though is, as you [(defense counsel)] said, to try to reestablish communication between defendant and counsel.”

Defendant personally reiterated that she needed telephone privileges to find a new attorney. The court responded, “It isn’t necessary right now, but again if you think I’m going to be stupid enough to reestablish your ability to call witnesses and threaten them, I’m not going to do that.... You do now have counsel that—of your choice, and there are ways to arrange to have counsel represent you.” Defendant also complained about where she was being housed in the jail. The court responded, “I’m going to let your attorney work out that, if that’s a problem. I’m not in a position to tell the sheriff how to run the jail .... I’m not going to jump in here and at your word decide that I’m going to change your housing and give you free access to the telephone.” The prosecutor offered to check with the sheriff’s department to see if it could permit defendant telephone access to her attorney while ensuring she could not speak with others.

The court said it believed defendant had the right to call her attorney but “under whatever conditions we need to assure that there’s no third party switch.” The court left it to the parties to “work that out.” In the meantime, the court signed an order allowing defense counsel “to have face to face interviews with [defendant] and to play on a tape recorder, tapes of recorded conversations and interviews pertaining to” the case.

On January 3, 2002, defendant wrote a letter to the court stating that she had “removed” Ward as her attorney and had not yet obtained a new attorney, and asking the court to grant her “temporary telephone access” so she could find another lawyer. The court conducted a hearing on January 16, 2002. At the hearing, Attorney Ward stated his understanding that defendant “was considering to seek other counsel.” But he also advised her “that I consider it my obligation to continue working on the case until I’m relieved.” He said there were matters concerning witnesses “that I would definitely keep working on until such time that I feel that I’m terminated on the case.” Defendant reiterated that she wanted to look for a new attorney. The court expressed willingness to allow defendant to change attorneys if she wished. But it was reluctant to lift the telephone restrictions due to concerns she would use the telephone to dissuade witnesses. It noted that she was already charged with using the telephone to attempt to dissuade a witness.

A jail official stated at the hearing that it was not reasonably feasible to permit defendant to call a particular person while ensuring she did not call someone else. He said, “there’s no way for us to set it up where . . . she wouldn’t be able to manipulate it and be able to call someone else or get on a three way conversation.” The court explored the possibility of alternate procedures to permit defendant some telephone access. But ultimately, based on these representations, the court denied defendant’s request to lift the telephone restrictions. The court observed, “It really means that counsel has to visit his client much more frequently at the jail, which I know is a burden, but I also know the security problems.” The court also noted that Ward “must remain on the case until relieved by the court, even if your client says otherwise.” Attorney Ward agreed to continue to represent defendant unless and until she obtained a new attorney.

At the end of the hearing, the court stated its intent to schedule another hearing for March 13, 2002, if defendant agreed to waive time in which to be tried. It explained, “that gives you more time to make a decision about your attorney.” Defendant agreed to waive time. She expressed no objection to Ward’s continuing representation under the circumstances. Additional hearings were held on March 13, April 25, and June 17, 2002, during which Ward actively represented defendant. The question of replacing Ward did not arise at these hearings.

On June 24, 2002 (i.e., 16 days after the videotaped meeting in jail between defendant and Detective Mejia, posing as the fictitious middleman Antonio Davis), defendant sent to the court a long letter containing a wide range of complaints about her confinement.

On August 1, 2002, Attorney Ward moved to be relieved as attorney of record due to “defendant’s total lack of cooperation in the preparation for trial, and her totally uncalled-for misbehavior while in jail.” The court conducted a hearing the same day.

The court explained to defendant that if it allowed a change of counsel, her options would be to hire her own new attorney or, if she could not do that, it would appoint an attorney to represent her. Defendant mentioned, and the court agreed, that a third alternative would be for her to represent herself. The court explained to defendant the process involved in selecting qualified court-appointed counsel. The parties also discussed possible difficulties in allowing defendant access to a law library if she represented herself. The district attorney noted that defendant had been “in administrative segregation initially because she telephoned a witness and attempted to intimidate that witness and now the reason she’s there has been reinforced by virtue of the fact that she solicited the murder of that same witness.” The court stated its belief that defendant would have access to a law library if she represented herself, but it noted other difficulties that would be inherent in defendant’s representing herself. It provided defendant with written information “that talks about the privileges that you do have representing yourself and the limitations on it.” The court continued the matter to let defendant consider her options. It ordered Ward to continue to represent her in the interim.

At the next hearing on August 13, 2002, defendant stated she wanted appointed counsel. Both the public defender and the alternative public defender announced that conflicts prevented them from representing her. The court relieved Ward as defendant’s attorney and said it would appoint an attorney who was qualified to try a death penalty case. After consulting with the assistant supervising judge, it appointed to represent her the next attorney in fine on the list of available attorneys. On August 16, 2002, the court noted that that attorney was on vacation and instead appointed Michael Yamamoto to represent defendant.

On August 22, 2002, Attorney Yamamoto moved to withdraw as defendant’s attorney, stating, “I am unable to establish an attorney-client relationship with Ms. Rodriguez, based upon what communication has already taken place.” He also stated, “Ms. Rodriguez has indicated that another panel attorney would be preferable to her and that this issue is with me, not appointed counsel.” A hearing was held on August 28, 2002. The court stated to defendant that “what I cannot let you do is continue to reject attorneys until you find one that pleases you the most.” It noted that “you didn’t like the public defender that did your prelim. You didn’t like your own attorney that you hired and now you’ve created the situation in which Mr. Yamamoto feels he cannot adequately represent you.” It informed defendant that she could not continually change attorneys, and that at some point she would “be stuck.” The court relieved Yamamoto as attorney of record and referred the matter to a bar panel to select a new attorney to represent defendant. David Houchin, defendant’s eventual attorney at trial, was appointed to represent her.

At a hearing on November 7, 2002, Houchin informed the court for the record that defendant had just given him a letter from her previous attorney, Ward, postmarked August 7, 2002, that, according to defendant, she had just received the day before. The letter was stamped that it had been opened in error on August 14, 2002. Houchin described it as “a three-page single-spaced letter, which contains some very interesting facts about this case. I know that we had problems down at Twin Towers [(the jail facility where defendant was housed)] with respect to people getting information about this case or having information about this case, perhaps statements made by my client. I just want to put that on the record that this thing has been circulating.” On inquiry from the court, Houchin stated the letter “is a discussion from her prior counsel as to the case, as to how he anticipates that it could or should proceed, and some steps that she should perhaps consider taking.” The court asked whether Houchin wanted the letter made part of the record under seal. Houchin responded that he would “be the custodian of the document.”

The prosecutor assured the court and defense counsel that he had not seen the letter. Houchin responded, “I think my concern is perhaps informants popping up.” The court noted, “There is nothing much we can do with it at this point. Obviously, it stayed there far too long before it arrived with Ms. Rodriguez. Mr. Ward was her retained counsel.” It instructed Houchin to “maintain the record .... If there is a problem, we’ll need to examine what’s in the record to see if that could generate the problem that might come up.” The record contains no other reference to this letter.

In August 2003, about a month before trial began, Houchin moved the court to modify the order restricting defendant’s telephone privileges to permit her to call him. A hearing was held on August 22, 2003. The district attorney expressed no objection to modifying defendant’s telephone restrictions as long as the order permitted defendant to call only Houchin and not anyone else. He believed it was now possible for the jail to arrange this. The court agreed it was appropriate to permit defendant to speak with Houchin by telephone and not require him to visit her in jail every time he needed to speak with her. The court signed an order permitting defendant to telephone Houchin. It also issued an order directing the sheriff to permit defendant to meet face-to-face with Houchin and the defense investigator and that they “be provided the opportunity and facilities to play audio and video tapes” during the meetings.

The same day, the court signed an order directing the sheriff to conduct an “emotional state evaluation—medication status” on defendant. A fax sent to the court from Shirin Sharifa, Ph.D., on August 27, 2003, stated that defendant “had been receiving MHTX [(apparently mental health treatment)] from Twin Towers jail for the past 2 yrs. She was last evaluated by this clinician on 8-27-03.”

A lengthy hearing concerning several matters was held on August 28, 2003. Based on conversations with jail personnel, the prosecutor expressed concern about the court’s order permitting defendant to call her attorney from jail. He did not want to state his concerns in open court “because if she doesn’t already know about this, it would be telegraphing to her what is possible.” He stated that, based on his conversations, “I believe [defendant] knows how to manipulate the . . . phone system to call someone other than Mr. Houchin.” Accordingly, the court held an in camera hearing in the presence of the prosecutor and Houchin but not defendant. The prosecutor explained his concern that defendant may have learned from other inmates how to use another inmate’s booking number to call someone other than Houchin. Believing that “it’s very important for a defendant, an inmate to be able to contact her attorney,” the court let stand the previous order permitting defendant limited telephone access to her attorney subject to a jail deputy coming to court for further questioning.

Later during the August 28 hearing, in defendant’s presence, Houchin told the court that defendant “said that she was told she’s seen by someone every three weeks, and that’s all they can do for her.” The court reviewed the response from Dr. Sharifa dated the day before and expressed concern that it was inadequate. Houchin stated, “I have concerns after speaking with my client. I have seen certainly a change in her demeanor, and an onset of that has been within the last two weeks. This is something certainly additional or different than what they believe they’ve been treating her for for the last two years.” Houchin asked to have someone determine her emotional state, explaining, “I’m having a difficult time even when I go down to see her to keep her focused on things. Her emotional state is certainly not conducive to preparing for this trial.” The court agreed to issue an appropriate order that Houchin prepared. Houchin said he would prepare an order for the next day.

Another hearing was conducted on August 29, 2003. It began in defendant’s absence, but in Houchin’s presence, as a continuation of the in camera hearing of the day before. The court spoke with a jail representative, then defendant appeared for the rest of the hearing. After a further hearing in defendant’s presence, the court ultimately ordered that she be permitted to contact Houchin by telephone on Mondays, Wednesdays, and Fridays between 6:00 p.m. and 8:00 p.m. Houchin said, “That would be fine.” The court signed a written order to that effect. The court also confirmed with the jail representative that defendant was entitled to face-to-face interviews in jail with Houchin and the investigator, with the ability to play tapes.

At defendant’s request, the court next conducted an in camera hearing, with the prosecutor excluded, to address her medical concerns. Defendant complained that the jail had placed her in “211 isolation, which is the discipline unit.” She believed there was no reason for her to be there. She expressed many complaints about her confinement and said she was sick, often vomited, could not eat or sleep, and suffered from claustrophobia due to the fact her jail cell had no window. She complained that her doctor in jail could only see her every three weeks rather than give her weekly therapy, which she believed she needed. The court noted that “there’s evidence that you’ve engaged in misconduct that’s been offered here, the evidence being that you’ve communicated with witnesses against you and you knew you shouldn’t and you tried to persuade them to change their testimony, and with Ms. Hall that you tried to arrange to have the witnesses eliminated. So it’s not as though you’re doing it, sitting there doing nothing. The discipline sounds like it’s appropriate. The thing I want to find out too is about your medical condition.”

After hearing further from defendant, the court asked what she thought was the solution. Defendant said that she needed to be moved to another unit and, “in order to be able to help [her attorney] defend myself,” she needed more “mental psychiatric counseling.” The court said that “as far as discipline in the jail is concerned, it does seem appropriate . . . given the evidence that I’ve seen here, that Ms. Rodriguez not be treated as other inmates are, she’s not in the standard population.” It expressed concern that the cell had no window. But it said it could make no ruling regarding her housing by hearing only one side of the story. It said, “the first step is for [defendant] to see the doctors and have a report to the court.” It again agreed to sign an order that Houchin prepared. Houchin said he “appreciate^] the court’s help. I have noticed in the last several weeks’ time spent with my client is, she is tearful, emotional, and she can only discuss these issues that she brought up to the court here, and my time is not being used to its best.”

After again listening to defendant’s concerns, the court said, “I won’t do anything based on only one side of the story.” It suggested a new hearing where both sides could be represented. It told defendant, “Ultimately I can issue orders that they have to follow based on your constitutional rights and the necessity to be able to prepare for this trial, but I. . . will not do anything just on hearing one side of the story. I’ve heard your side. If Mr. Houchin wants to pursue it and bring a hearing before the court, we’ll do that at whatever time is appropriate on [September 15] or otherwise.”

The same day, the court issued an order for a “psychiatric evaluation and report back to the court, Dept. 101.” On September 3, 2003, defendant, through counsel, filed a formal “motion for evidentiary hearing re: defendant’s constitutional rights and appropriateness of present housing assignment.”

The court conducted the requested hearing on September 15, 2003, with county counsel representing the sheriff. The court stated that its “major concern is with [defendant’s] ability to cooperate with counsel and prepare for trial. There are other concerns as well as to whether this is inappropriately restricting her at the county jail.” Psychologist Michael Maloney, the “program director for women’s mental health for L.A. County jails,” testified. He said that “defendant is seen by Dr. Diana Delcarlo, who is a psychiatrist. She [Dr. Delcarlo] sees her every three weeks, talks to her and has prescribed Wellbutrin and buspirone, both mild antidepression, anti-anxiety drugs.” He said the number of visits defendant received was “more than a typical inmate her capacity would receive.” Defendant was not defined “as in need of mental health counseling.” The determination that an inmate needed mental health counseling could be “made by any number of people,” but no one had done so regarding defendant.

Maloney said that Dr. Kevin Christy, a psychologist, had seen defendant in July. He “was of the mind that it would be good to talk to her once a week, and I said we don’t have the staff to do that.” Regarding whether Dr. Christy believed defendant “should” be seen once a week, Maloney said, “The only word I’d question is ‘should.’ I mean it’s not like a psychological or psychiatric emergency. I mean he felt it would be helpful, nice for her to be able