THE PEOPLE, Plaintiff and Respondent, v. MICHAEL McCREA WHISENHUNT, Defendant and Appellant, 44 Cal. 4th 174

Opinion CHIN, J. On October 10, 1995, 19-month-old Kesha Gurke died of severe internal injuries and third degree bum wounds she received in the home where she lived with her mother, Jeanette Hill, and her mother’s boyfriend, defendant Michael McCrea Whisenhunt. On August 22, 1996, a San Luis Obispo County jury found defendant guilty of first degree murder and found true the special circumstance that the murder was intentional and involved the infliction of torture. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(18).) After the penalty phase, the jury returned a verdict of death.

The trial court denied defendant’s motion for new trial and modification of the penalty (§ 190.4, subd. (e)), and sentenced him to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) For reasons discussed below, we affirm the judgment in its entirety. I. FACTS A. Guilt Phase 1. The Prosecution’s Case a. Kesha’s Birth and Early Life Kesha Gurke was bom on February 14, 1994. Her mother, Jeanette Hill, had met Kesha’s father, Jeff Gurke, in junior high school, and had just turned 18 years old when she gave birth to Kesha.

Hill’s relationship with Jeff Gurke ended in May 1995, and he left town shortly thereafter. Defendant, who was 30 years old, met Hill at her 19th birthday party in January 1995. Although Hill’s relationship with defendant was initially platonic, in June 1995, she and Kesha moved into defendant’s apartment in Paso Robles, a one-room converted garage, where they would live until Kesha’s death four months later on October 10. About a month after moving in together, Hill and defendant developed a romantic relationship.

Defendant was sent to jail for about a month and a half during the summer, but returned to the apartment in August. When Hill and Kesha first moved in, defendant got along very well with Kesha. But after defendant’s incarceration and return, Kesha appeared not to like him anymore. Defendant’s conduct towards Kesha also changed. Kesha’s whining and crying got on defendant’s nerves and he responded by yelling or swatting her on the buttocks. Hill objected to this kind of discipline, but defendant stated that this was how he believed she should be raised. Kesha became less comfortable with defendant as time went on.

Whenever she heard defendant’s car drive up, she would cling to her mother. When defendant entered the room, Kesha would just sit and stare into space. b. Signs of Abuse Hill first noticed that Kesha had injuries in August 1995, after defendant returned from jail. Hill noticed bruises on Kesha’s leg, including one on the side of her thigh that lasted for weeks. In September, Hill visited the home of one of her friends, Kelly Salay, who noticed a bruise in the shape of a handprint on Kesha’s thigh. Hill believed the bruise had been caused by the faucet when Hill bathed Kesha in the sink, and told Salay that.

During the same visit to Salay’s house, defendant became annoyed with Kesha because she kept crying. He grabbed her by the arms, and yelled at her to shut up. Around this time, Hill also noticed bruises down either side of Kesha’s spine, chest, stomach and face, which she did not think she had caused. When she asked defendant about these bruises, he became defensive and stated he loved Kesha, and explained away the bruises as the results of accidental falls. Kesha had a black eye a few days before she died. Hill did not ask defendant about the black eye.

Kesha’s babysitter, Crystal Smith, also noticed the black eye and a small cut under Kesha’s eye after she and Hill returned from shopping. Defendant told Smith that Kesha got the black eye when she fell down some steps. Smith noticed that Kesha usually became quiet when defendant was around. In the days before Kesha’s death, Hill noticed a lock of Kesha’s hair on the tray on her high chair, some of Kesha’s hair on the bathroom floor, and red dots on Kesha’s head where the hair was missing. When Hill asked defendant about Kesha’s hair, he said that it came out when he was brushing it.

Sarah Semple, a friend of Hill’s, noticed that Kesha started losing her hair in September, and that she had bald spots. c. Emergency Room Visits and Medical Examinations Around September 29, Hill took Kesha to the emergency room because Kesha was sleeping all day, had a fever, did not eat, and had diarrhea. Dr. Thomas Richards examined her and prescribed antibiotics. He noticed bruises on Kesha’s spine, chest, and left thigh, suspected they were the result of child abuse, and asked Hill about them.

Hill repeated defendant’s explanation that most of the bruises were caused by falls while playing with other children, but said she did not know what caused the bruises on Kesha’s spine. Dr. Richards told Hill to bring Kesha back the next day, and reported his suspicions to the San Luis Obispo County Child Protective Services Department and to Kesha’s regular pediatrician. Defendant arrived separately at the emergency room. He was angry because he had wanted Hill to wait and only bring Kesha to the hospital if she had not gotten better in another couple of days.

He was worried that he was going to be accused of causing the bruises because he was an ex-convict, and that the authorities would take Kesha away from Hill. Hill and Kesha stayed at a friend’s house that night. The next day, Hill took Kesha back to the emergency room, where Dr. Greg Frye examined her. He noted that Kesha was feeling better, but he observed bruises on Kesha’s back and chest. He also noted that the hair on her scalp was slightly thinner than normal. Dr. Frye told Hill to follow up with Kesha’s regular pediatrician, Dr. Richard Peterson, whom they saw on October 4. By the time Kesha saw Dr.

Peterson, she was almost back to her normal self, and there was no sign of infection. Dr. Peterson conducted a complete physical examination in response to Dr. Richard’s report of possible abuse, but Dr. Peterson did not observe any bruises. d. Visit by Child Protective Services In response to Dr. Richards’s report of possible child abuse, Constance Danger, a child protective services worker, visited defendant’s apartment on October 5. Danger examined Kesha and noticed a bruise about the size of a quarter on her forehead above her right eye.

Hill told Danger that she caused the bruise while trying to hold Kesha down to apply eye drops for an eye infection. On her outer left thigh was a small fading linear bruise, which Hill attributed to striking the faucet while bathing Kesha in the kitchen sink. Danger told Hill that while Kesha did not look happy, she did not appear to be unhealthy or look like she was being hurt. e. Defendant and Hill’s Deteriorating Relationship About a week and a half before Kesha was killed, Hill was considering leaving defendant because she felt Kesha was not happy.

Defendant told Hill that he had the feeling that she was going to leave him because she had been acting cold and distant. He also told her that he was going to resume dating Brandi Blackburn, his former girlfriend and Hill’s best friend. f. Events the Day of the Murder, October 10, 1995 On October 10, 1995, defendant arrived home around 9:00 or 10:00 a.m., having spent the night elsewhere. He and Kesha took a shower together. Around 2:30 p.m., Hill used defendant’s car to take herself and her friend Kelly Salay to run some errands, leaving Kesha with defendant.

In the late afternoon, neighbor David Campa, who lived in a house in front of defendant’s converted-garage apartment, heard defendant say, “Get up. That didn’t hurt.” On previous occasions, Campa had heard a baby crying and defendant saying “shut up” or “stop.” This time, he did not hear any crying. Hill dropped Salay off and returned home about 4:00 or 4:30 p.m. Defendant ran outside the apartment to meet her at the gate and appeared very flustered.

He said he wanted to tell her what happened before she went into the apartment and “freaked out.” Hill replied, “Something always happens when you are watching her.” Defendant said he had been holding Kesha while they were watching a movie, when she defecated on him. He said they had to take another shower together, and that the water burned her, although, inexplicably, it had not burned him. He told Hill he had never seen anything like it before, and that he was “really sorry.” When Hill went inside, Kesha was lying on the floor, her head against the carpet, whimpering and trying to get up against the wall.

Hill wanted to take her to the emergency room, but defendant opposed doing so, saying that it was not as bad as it looked. Sometime between 25 and 45 minutes later, Hill asked defendant to go to the store to get some juice for Kesha. Hill applied some Neosporin to her bums just before defendant left. Defendant first went to Salay’s house and told her that Kesha had been burned by hot water in the shower. Salay asked how bad the bums were, and defendant told her Kesha was fine.

They talked about other things for about 45 minutes to an hour, and then defendant and Salay went to the store, where defendant asked several people there about what would be good for a little girl who was not feeling well and who had bums. He said that Kesha had diarrhea and vomiting, and that her immune system was so weak that she got blisters in the shower. After spending about 15 minutes at the market, he bought some soup and juice and they left. Defendant dropped off Salay and returned home sometime after 5:30 p.m. Kesha was able to drink the juice defendant had bought.

Defendant moved Kesha to the bed, but she went limp while he was holding her. Defendant told Hill to clear out the sink and run some lukewarm water to revive Kesha. She said she wanted to call 911, but defendant yelled at her to run the water. She complied, but Kesha did not respond. Defendant then tried to administer CPR, and fluid came out of Kesha’s mouth. When defendant had his back turned, Hill ran to the house of neighbor David Campa and called 911. At 6:50 p.m., paramedics received a report of a baby not breathing and arrived at defendant’s apartment within one minute.

They discovered Kesha lying naked on the floor. She was pale and unconscious, and there were several bums about her body in a splash pattern that appeared to have been caused by a liquid. They determined she was not breathing and had no pulse. They began CPR, but got no response. Questioned by paramedics, defendant stated that Kesha had been fine all day, had been taken into the shower four or five minutes before the paramedics had arrived, and had no problem with the shower. However, when he placed Kesha on the floor, she began coughing up phlegm and stopped breathing.

Taken to the emergency room, Kesha was examined by Dr. Frye, who had previously seen her on her emergency room visit of September 30. Attempts at resuscitation were unsuccessful, and she was declared dead at approximately 7:30 p.m. Dr. Frye noticed numerous braises of different ages on her body, including ones that had not been present when he previously examined her. She had bums across her body, from her scalp down to her groin area. g. Initial Police Investigation Two police officers, John Hacker and William Seymour, also responded to the 911 call.

Defendant told Officer Hacker that he had taken Kesha into the shower about 3:30 p.m. to clean her up after a bowel movement, and that the red marks on her body were apparently a bad reaction to the water, since, as defendant acknowledged, the water was not hot enough to bum him even though he was in the same water at the same time. Defendant said that later in the evening, he was on the couch playing with her when she suddenly stopped breathing. Hill told the officer essentially the same story, but added that Kesha’s reaction to the water was due to an unnamed illness.

Defendant, however, told Officer Seymour that he thought the water in the shower had been too hot, and that it had burned Kesha. Hill told Officer Seymour that, when she arrived home, she put Neosporin on the bums and that Kesha appeared to be fine. Detectives arrived on the scene and secured the premises. A detective photographed the interior of the apartment, including the top of the stove, which had a frying pan on it. The frying pan was seized and subsequently analyzed. It contained five empty shrimp tails, and appeared to have contained between 10 and 20 ounces of grease or cooking oil.

Defendant and Hill were arrested and placed together in a police car. Their conversation was secretly recorded and the tape was played to the jury at trial. Defendant told Hill that the only way they could “get away with this” was for Hill to tell the police that she was frying shrimp and accidentally knocked the pan over. Police conducted a taped interview with Hill that night. She stated that when she returned home from having run errands, defendant told her that he had taken Kesha into the shower because she had defecated on him, and that she was burned in the shower.

Police then conducted a taped interview with defendant, who had been advised of and waived his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) When asked how Kesha was burned, he stated that he had given her a shower because she had vomited on him, and that when he started drying her, her skin began coming off. Police returned to defendant’s apartment, tested the hot water, and determined it was not hot enough to have caused Kesha’s bums. h.

The Autopsy A forensic pathologist observed Kesha’s injuries at the hospital the night she died, and performed an autopsy on her the following morning. Externally, there were a total of 44 bums across her head, face, neck, back, torso, left arm; and genital area. There were a total of nine abrasions on her forehead, nose, neck, abdomen, and upper thigh. The abrasion on her forehead was consistent with the teeth of a comb striking the area. Abrasions on her abdomen were suggestive of fingernails.

There were a total of 34 bmises on her left lower eyelid, temple, cheek, lower jaw, abdomen, back, arm, wrist, thigh, knee, and foot. Internally, there was extensive bmising in her abdominal wall, her colon, pancreas, large intestine, and right kidney. There was a large laceration of the tissue that supports the colon, and a transection of the small intestine. There had been internal bleeding in the abdominal cavity. Her internal injuries, especially the transection of the intestine and the bleeding into the abdominal cavity, caused her to go into shock, which in turn caused her death.

Her bums and bmises were also contributing factors in her death. There was an injury in the abdomen, which was healing at the time she died and which appeared to be several days old. However, the rest of the injuries were inflicted less than two or three hours before her death. Her internal organs showed no evidence of natural disease. The pathologist believed the bums were caused by a high-temperature viscous oil. i. Further Police Interviews After the autopsy, a police detective interviewed Hill and defendant a second time. Hill did not change her story about the events leading up to Kesha’s death.

Defendant, however, in an interview that was not recorded, eventually changed his account after being told that the autopsy did not support his story about Kesha’s being burned in the shower. When asked whether he had burned Kesha accidentally or intentionally, defendant began to cry, said he had not meant to bum her, and told the following story: Hill had left the apartment to ran some errands, and he began frying some shrimp. He felt a tug on his leg, which startled him. He turned with the frying pan in his hand, and the hot butter or grease fell on Kesha.

He removed her diaper, took her to the shower, and turned the cold water on to treat her bums. He did not think she was in any great pain. The detective told defendant that, while the bums were serious and a contributing cause of Kesha’s death, she had died from a massive blow to the abdomen. Defendant then stated that, after burning Kesha, he squeezed her very hard, picked her up, and ran into the high chair on the way to the shower. Defendant wrote out a statement repeating what he had told the detective, and stating that he had not meant to hurt Kesha.

The detective checked with the pathologist about defendant’s claim that he had squeezed Kesha and ran into a high chair with her. In a third interview, which was also not taped, the detective told defendant that he had been informed that it was impossible for Kesha to have suffered her injuries in the way defendant had described it. Defendant then stated that he now remembered that, as he was mnning towards the shower with Kesha, he tripped and fell on top of her, which, he stated, may have possibly caused her massive abdominal injuries.

When the detective told defendant that investigators had been unable to find a diaper with melted plastic or any grease spots on it, defendant changed his story and claimed that Kesha had not, in fact, been wearing a diaper when she was burned. j. Defendant’s Letter to Hill Defendant wrote Hill a letter dated October 22, 1995, which she received while she was in jail. Copies of the letter were given to the jury to read. In the three-page letter, among other things, defendant makes the following admissions: “I wish I’d told you the tmth and that we would have taken her in to be checked, she’d still be alive.

I believe telling you it was water and not butter you wouldn’t think the bums were that bad, we could handle it ourselves.” “I didn’t fall just slaped [ric] two or three times and that’s what killed her.” “I have to live with the fact that I lost something special and a part of me, by my hand.” k. Expert Testimony on Kesha’s Injuries Three physicians testified as expert witnesses on Kesha’s injuries. Dr. H. Howard Kusumoto, a pediatrician who specialized in examining suspected victims of physical child abuse, was the child abuse medical examiner who examined Kesha in the emergency room on the night she died.

He observed several bums, contusions, and puncture wounds on Kesha’s body. He also observed her autopsy the next day. Her internal injuries were caused by a concentrated, very strong force, comparable to the injury a child would suffer from forcefully hitting the dashboard of a car during a traffic accident. Her injuries could have been caused by hitting or kicking, but kicking was more likely. In Dr. Kusumoto’s opinion, based on the type of injuries, they were caused by a man, most likely with the front part of his foot.

He also opined that the pain caused by Kesha’s internal injuries would have been excmciating. Kesha’s bums were caused by a viscous liquid, which was hotter than boiling water, and which was either poured or “painted” on her body. The bums were caused by separate applications, and, given the number of bums, they would have been very painful. The burns were irregularly shaped but very well defined, with no evidence of splashing or spilling beyond the edges. This indicated that she was unable to move when the bums were applied. A pediatrician who specialized in bums, Dr.

Matt Young, reviewed the photographs of Kesha’s bums. Many of the bums on her chest, neck, chin, and back were third degree bums. Dr. Young opined that, based on their distribution and their depth, the bums were caused by a viscous, sticky liquid, such as hot grease or hot butter. Unlike water, viscous liquids do not drip off the skin, and because grease or oil reaches a higher temperature before boiling than water, it creates a deeper burn. The pattern of the burns indicated that the viscous liquid was intentionally poured or dripped on her.

The bums could not have been the result of one accidental event because there were bums both on the back of the neck and under the chin. This also indicated that the child had to change positions, or had her position changed, between these two bums. There were bums on her genitalia and on her back, which also indicated that her position was changed between these sets of bums. In the doctor’s opinion, the pattern of the bums was incompatible with an accidental spilling of butter or grease on the victim. The doctor stated that the severity of bum pain is incomparable. The prosecution’s final expert witness was Dr.

Roger Williams, a physician specializing in pediatric pathology and child abuse. He reviewed the death certificate, autopsy report, and investigative reports of Kesha’s death, together with slides, photographs, and X-rays. All of Kesha’s bruises were fresh, that is, they occurred two days or less from the time of her death (with the exception of the injury around her left eye, which was at least four days old). The pattern of bruises indicated abuse rather than accidental bruising. Consistent with the prior medical testimony, Dr.

Williams testified he believed the bums were caused by a hot viscous liquid, because the bums had uniform sharply demarcated edges and did not display the runny or splattering characteristics one would expect with water. In Dr. Williams’s opinion, because the burning material was applied at right angles to the skin and there was no indication of a downward flow of the material, each bum was applied separately, with the victim in a restrained position. He observed that the genitalia is a place where burning does not easily occur accidentally, since the legs are typically held together.

In his opinion, in order for the victim to have suffered the large bum she received in this area, Kesha’s pelvis would have to be tilted upwards, and her legs spread apart at the time of the bum. He stated that Kesha’s fatal internal injuries resulted from “a heel stomp, a really forceful kick” and a “very powerful punch,” and that at least two blows, possibly more, were involved. l. Defendant’s Prior Acts of Child Abuse D. Robertson lived with defendant for about three years, starting in late 1983, and had two children with him, S. and J.

Around the time the children were one to three years old, defendant struck both children when they whined or did not behave. He slapped them “upside the back of’ their heads, sometimes smacking them so hard that their heads “would bounce off the table.” He slapped the children on the head at least one to three times a week. He would also use “karate kicks.” He concentrated his kicking on S., kicking her between five and 10 times. Robertson never reported these acts to the police, but she did report them to child protective services.

Defendant separated from Robertson in July 1987, taking the two children with him. Robertson obtained a restraining order against defendant two months later, alleging he had sexually molested S. She made a similar allegation in 1989. However, although the alleged sexual molestations were investigated, defendant was never charged. Robertson eventually regained custody of the two children. She was arrested in 1989 for a shooting incident and was convicted of the misdemeanor of negligently discharging a firearm. m. Hill’s Guilty Plea Hill was charged with first degree murder for Kesha’s death.

Before defendant’s trial, she pleaded guilty to involuntary manslaughter. Her sentence was one year in jail (or alternatively, six months in jail and six months in a residential care facility with counseling), plus five years’ probation. 2. The Defense Case a. Defendant’s Testimony In September, defendant and Hill had had a huge argument over defendant’s desire to go back to his former girlfriend, Brandi Blackburn. His relationship with Hill was “up in the air” in the week or two before Kesha’s death. In the week before Kesha’s death, defendant did not stay at the apartment at night.

He would arrive at the apartment in the morning, take naps, and then come and go from there the rest of the day. The night before Kesha’s death, defendant had been with Blackburn all evening. He arrived at his apartment about 8:40 a.m., crawled into a sleeping bag, and Kesha joined him. They slept until about 11:00 a.m. Around noon, Hill borrowed defendant’s car to run errands with Kelly Salay, and was gone approximately two and a half to three and a half hours. During that time, defendant was with Kesha, who was fine except for having some diarrhea, for which defendant showered her without incident.

Hill came back about 3:45 or 4:00 p.m. Defendant started boiling some water in a pot, and then went outside to check the oil in his car. While he was outside, he heard Kesha scream. He went back into the house and saw Kesha lying bent over in front of the refrigerator. Hill, who was standing about a foot away from Kesha, was holding a pot containing water, oil, and butter. He pushed the pot away, picked up Kesha, and turned and ran to the counter sink. But it was filled with clothes that Hill had been washing.

He slipped and fell into the high chair, but he did not fall on or drop Kesha, nor did he squeeze her hard. He carried her to the shower and turned one of the knobs on, without looking to see whether it was the hot or cold water knob. He went back to the kitchen and asked Hill what had happened, but she just said she had to clean up the mess. He returned to the bathroom, turned the shower off, and began taking Kesha out of the shower. Hill then took Kesha, and said she would take care of her. Hill applied some Neosporin, said that it was not as bad as it looked, and that everything was fine.

Hill dressed Kesha and asked defendant to go to the store to get juice and food for Kesha. Defendant first went to Salay’s house, where he talked with Salay for about five minutes and then got into an argument with Salay’s roommate’s mother for about 30 to 45 minutes. Defendant then went to the store and bought the items. When he returned home, he found Kesha lying on a pillow, not crying or making any noise. He brought her the juice and she sat up and drank it. She fell asleep on his chest. He awoke when he felt her arm drop down by his side. Her body had gone limp.

Hill attempted to revive Kesha by placing her in the kitchen sink. Defendant tried CPR and told Hill to call 911. Later, when the police arrived and asked defendant what had happened, he told them he had burned Kesha in the shower. Defendant denied ever having struck Kesha in a violent way the day she died. He occasionally swatted her on the hand or on the buttocks, but he mainly disciplined her by using his loud voice.

Defendant acknowledged writing in the October 22, 1995 letter that he sent to Hill in jail that “I wish I’d told you the truth and that we would have taken her in to be checked, she’d be alive” and “I believe telling you it was water and not butter you wouldn’t think the bums were that bad.” Defendant stated he wrote the letter to let Hill know that he was going to take the blame for Kesha’s death. He stated that his earlier inconsistent statements, such as telling Salay and the people at the market that Kesha had been burned in the shower, were his attempt to take the blame for Kesha’s bums.

Defendant also took the blame by adopting the police investigator’s suggestion that defendant had burned Kesha with the pan he used to fiy the shrimp. He decided to take the blame because he knew that Hill could not physically or mentally handle being in prison, but he could. Defendant further stated he decided to take the blame because, at the time of Kesha’s death, he thought it was an accident. He did not know anything about the abuse. Defendant decided to stop taking the blame after Hill showed no remorse, and he ended up in solitary confinement.

Defendant denied ever kicking or punching S. or J., the children he had with Robertson. In December 1987, defendant was living with his sister-in-law and his niece Kayla, who was four months old. Defendant took Kayla to the emergency room for a broken leg, and said that it happened when 17-month-old J. grabbed Kayla while she was sitting on defendant’s lap and she fell. Defendant was arrested for assault after he became furious with child protective services workers when they asked him questions at the hospital about Kayla’s injury.

A few months later, Kayla got some wood glue in her mouth, but defendant thought that there was no reason to go to the emergency room. Rather, he followed the directions on the back of the glue bottle and washed her mouth out with water. Defendant stipulated that in 1989 he was convicted of the felony of shooting at an inhabited dwelling. b. Defendant’s Admissions to Kenneth Long Kenneth Long, a felon with convictions for assault with a deadly weapon and possession of methamphetamine, was a longtime friend of defendant’s who testified for the defense about Hill’s supervision of Kesha.

On cross-examination, Long testified to a conversation he had with defendant, who phoned Long from prison after Kesha’s death. Defendant told Long that Kesha had startled defendant by grabbing his leg while he was cooking with a skillet. He knocked the skillet off the stove, which fell on Kesha and burned her with oil. He picked her up and ran towards the shower, stumbled over the high chair, and fell on her. c. Defendant’s Expert Witness Pathologist Dr. Sharon Van Meter reviewed the autopsy report, photographs, and other medical records.

She believed the bums were caused by a “quite hot” liquid, which possibly might have been slightly thicker than water, but she could not unequivocally mle out water. Based on the appearance of the bums, she could not reach a conclusion whether the bums were caused accidentally or intentionally. She believed the bums were caused by one spattering or splashing event, although she could not unequivocally rale out multiple events. Dr. Van Meter agreed that Kesha had been abused.

She believed that Kesha’s internal injuries were “blunt-force types of injuries,” but she could not form an opinion as to what specific object caused them. d. Defendant’s Behavior Towards Kesha and Other Children The defense presented several witnesses who testified they had never seen defendant strike Kesha, or any other child, in their presence:

(1) Jo Ann Goularte Jo Ann Goularte got to know defendant well in late 1994 or early 1995, when he and his second wife, Jennifer, then pregnant, moved into a cabin on the Goularte property, after he got out of prison. Defendant took care of the newborn baby, and his older children would visit him. She never saw him show anger or act violently towards any of the children.

(2) The Green Family Tamara Green allowed defendant, Hill, and Kesha to stay at her house for a few weeks in April 1995, while defendant was waiting for an apartment to become available. Green described defendant’s interaction with Kesha as “fatherly” and “very loving.” She thought his expectations for Kesha were “too high for a child of that age,” but she never saw him spank her or be violent towards her. After defendant and Hill moved to a nearby apartment, Green and her two daughters, Holly, age 11, and Jennifer, age 10, continued to socialize with them.

Holly could only recall one instance in which defendant hit Kesha, which was when she tried to eat bath oil and he “smacked” her on the hand. Jennifer never saw defendant hit or spank Kesha with any force. The only instance she could recall was when he lightly slapped Kesha’s hand to stop her from playing with cigarettes. e. Hill’s Parenting and Treatment of Kesha Kenneth Long testified about Hill’s supervision of Kesha. On one occasion, Kesha fell on her face and Hill ignored it. Another time, she appeared out of touch with reality because she started screaming at a garbage can for no apparent reason.

Long’s mother, Mary Paige, testified that Hill would sometimes “space out,” and that Hill was not aware or did not care that Kesha was crying. Marlene Cisneros hired Hill to babysit for her on several occasions, and Hill sometimes brought Kesha along. On one occasion in late September, Cisneros saw that Kesha looked very pale and had a fever. Cisneros asked Hill whether she wanted to take Kesha to the emergency room. Hill initially refused, saying that she was scared to do so because Kesha had bruises on her, but Hill finally agreed to have Cisneros drive them to the hospital. f.

Kesha’s Health Problems According to Tamara Green, Kesha was sick most of the time that she saw her in 1995, and exhibited coughing, diarrhea, and vomiting. In late August or early September, Green became concerned because she saw a bruise or raised welt on Kesha’s left thigh that was not healing. Kesha was clumsy when she lived at Green’s house, and often fell down. g. Shooting Incident Involving D. Robertson Judith Mooney testified concerning the credibility of prosecution witness D. Robertson.

Mooney disputed Robertson’s account of the incident underlying Robertson’s misdemeanor conviction for negligently firing a firearm. Mooney testified that Robertson had in fact fired three times at Mooney and her children, after Mooney had gone to Robertson’s house and Robertson had asked her to leave. B. Penalty Phase Evidence 1. Aggravating Evidence a. Kayla’s Broken Leg The prosecutor introduced evidence that defendant had abused his niece, Kayla, who, on December 13, 1987, when she was four months old, was taken to an emergency room for a broken leg.

When police interviewed defendant about the injury, he stated he had been holding Kayla on his lap, when his 17-month-old son grabbed Kayla, causing her to fall onto an open drawer, and then the son fell on top of her. Emergency room physician Dr. Mark Shallit treated Kayla. In his opinion, Kayla’s injury was the result of abuse because the femur was broken in a spiral fracture, which indicates a strong twisting force was applied. Dr. Shallit did not think that the injury could have been caused in the way defendant described.

The Fresno Sheriff’s Department placed a hold on Kayla because of concerns of possible child abuse. After being notified by the hospital, child protective services conducted an investigation, but its investigator, Robert Sandoval, concluded the injury was probably an accident. Dr Shallit believed the child protective services investigator was mistaken in his conclusion. b. Home Shootings The prosecutor introduced evidence concerning the incidents that led to defendant’s 1989 conviction for shooting at an inhabited dwelling (to which he had stipulated during the guilt phase).

Willard Eugene Wages, who had known defendant all his life, testified that on May 10, 1989, about 8:30 p.m., he was sitting in his living room with his two young daughters, when someone shot at him through the back window of his house. A bullet, which police later recovered, struck the wall over the front door. In a separate incident, about 10:00 p.m. on the same evening, Joyce Bryce was contacted at work about a shooting at her home. Returning home, she discovered that her windows had been broken and that there were “about 13 [or] 14” bullet holes in the walls of her house.

In connection with the investigation, police obtained a warrant to search defendant’s home, where they discovered a .45-caliber handgun and ammunition for the handgun and for an assault rifle. Defendant wás arrested, and, after being told that police had recovered a .45-caliber projectile from the Wageses’ residence, admitted he had shot at both residences. Four days later, he changed his story and stated that someone named Thompson committed the shooting at the Wageses’ residence. 2. Evidence in Mitigation a.

Defendant’s Social History Psychologists Robert Halón and Robert Owen presented the following social history based on conversations with defendant and his relatives, and through a review of records. Defendant’s mother, Yolanda, fled home at age 16 after being molested by her stepfather. She married 18-year-old Billy Joe Whisenhunt and had three children with him in rapid succession; Butch, Jack, and defendant. Billy Joe Whisenhunt beat her on a regular basis, including when she was pregnant with defendant. She eventually left him. Defendant was hyperactive as a child.

His mother hated him because he looked just like his father, and she beat him frequently. She started telling him that he was “exactly like his worthless, abusive, violent, explosive father.” Defendant began to steal at age five and, by the time he was 12 years old, his mother was unable to handle him. She called his father, who at this point was living in Idaho, and told him to come get defendant before she killed him. His father took custody of defendant, who did not see his mother again until he was 17 or 18 years old. Defendant’s two brothers stayed with their mother.

Defendant’s father moved around frequently, taking defendant to several states, including Idaho, Oregon, and Missouri. Defendant’s father abused him and, after about a year, when defendant was 13 years old, abandoned him to a social services agency in Missouri. This followed an incident in which defendant’s father severely beat him after discovering that defendant had stolen two checks from a car dealership. Defendant became a ward of the court and was continually moved from one care facility to the next.

Defendant was placed with several foster families, but eventually each sent him away or was unable to keep him. When defendant was 17 years old, the social services agency had run out of places to send him and petitioned the court to terminate its supervision of him. Defendant was given a bus ticket to California and sent out on his own. Dr. Halón testified that defendant had very few attachment patterns with other human beings during his childhood, and this was exacerbated in his teenage years because he was shuffled from one temporary home to another. Dr.

Halón testified that, because defendant did not feel loved and did not have any strong social attachments, he did not develop a sense of morality. Dr. Halón was of the opinion that defendant viewed children who received love and affection from their parents as a threat because they got something he never could. Dr. Owen expressed similar conclusions in his testimony, and stressed the negative impact of the rejection and abandonment by defendant’s mother and father. Dr. Owen stated that defendant was neither psychotic nor suffering from a major mental illness. b.

Kayla’s Broken Leg Robert Sandoval, a social worker for child protective services, testified about his investigation of defendant’s possible abuse of Kayla in connection with her broken leg (of which the prosecution had presented penalty phase evidence). The reports Sandoval prepared at the time indicated that he went to the hospital and spoke to the floor nurse, but not the treating physician or any other doctor. He also went to Kayla’s home to view the bedroom. After an informal hearing, child protective services decided the allegations of physical abuse were unfounded.

On cross-examination, Sandoval stated that, at the time he conducted his investigation, he did not have the information that a spiral fracture (such as Kayla had suffered) requires twisting in addition to the force that breaks the bone. He stated that such information would have been important for him to have had at the time of his investigation. c. Defendant’s Prospects as a Life Prisoner James Park, a former administrator in the California Department of Corrections, testified about defendant’s prospects if he were to be sentenced to life without possibility of parole, and were housed at a Level IV prison.

Park was provided with a transcript of defendant’s preliminary hearing and a copy of defendant’s prior prison records. Based on this information, Park opined that defendant would make a good adjustment to prison, that he would perform useful work if given the opportunity, and that he would not pose a danger to prison staff or other prisoners. II. DISCUSSION A. Jury Selection Issues 1.

Defense Request to Show Photographs of the Victim’s Injuries During Voir Dire Defendant contends the trial court erred in denying his request to show prospective jurors the photographs of Kesha’s injuries as part of the defense’s voir dire, and thereby violated his rights to a reliable verdict, to trial by jury, and to due process, under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and corresponding provisions of the California Constitution. As we explain, we conclude the trial court did not err in denying his request.

Through an in limine motion, defense counsel sought to exclude from the guilt phase photographs of Kesha’s injuries. The trial court ruled that such photographs were admissible and that it would permit the prosecution to use several of them, while excluding several as cumulative. Defense counsel then moved to allow the defense to show prospective jurors the photographs during voir dire.

Defense counsel argued the photographs were so prejudicial that the defense could not determine whether prospective jurors could be fair unless it showed them the actual photographs and asked them whether they could render a fair and impartial decision at the penalty phase after having seen the photographs. The prosecution opposed the motion, arguing it was unsupported by case law and, in essence, sought to have the jurors prejudge the evidence.

The trial court denied the motion, but added it would allow counsel to question prospective jurors about the photographs, as long as there was no use of actual items of evidence. The court also stated it would personally voir dire prospective jurors to determine what effect the photographs might have on them. During voir dire, the trial court asked the prospective jurors if they would have “difficulty in deciding a case that involve[d] some graphic photographs showing serious injuries.” Two prospective jurors responded affirmatively, and the court excused both for cause.

Subsequently, defense counsel asked the prospective jurors whether seeing “graphic or gruesome photographs” of a deceased child would cause them to presume that defendant was guilty or would cause them to feel that somebody should pay for the crime, regardless of the rest of the evidence in the case. None of the remaining jurors indicated they would be so affected. We defer to the trial court’s discretion regarding the manner of conducting voir dire. (People v. Navarette (2003) 30 Cal.4th 458, 490 [133 Cal.Rptr.2d 89, 66 P.3d 1182]; People v.

Waidla (2000) 22 Cal.4th 690, 713-714 [94 Cal.Rptr.2d 396, 996 P.2d 46].) As we have stated, death-qualification voir dire must avoid two extremes: on the one hand, it 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; on the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty. (People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 47 [17 Cal.Rptr.3d 710, 96 P.3d 30].) “ ‘In deciding where to strike the balance in a particular case, trial courts have considerable discretion.’ ” (Ibid.) Here, the trial court expressly asked prospective jurors about the photographs, and defense counsel also made specific inquiries on the subject. Defendant presents no authority for the proposition that the trial court was required to allow the defense to show prospective jurors the actual photographs in connection with its questioning and, on this record, we see no abuse of discretion. 2.

Witt Error Defendant contends the trial court erred in excusing Prospective Juror K.K. based on her views concerning the death penalty, and in failing to ask followup questions before dismissing her. As we explain, we conclude the trial court did not err in dismissing this prospective juror. a. Background In her written juror questionnaire, K.K. twice stated that she was “strongly” opposed to the death penalty.

She indicated she believed the death penalty was “too often” imposed and wrote: “I don’t feel the death penalty should be imposed at all.” In response to whether she had any moral or philosophical views that would affect her ability to impose either death or life without the possibility of parole, she wrote, “It would be extremely difficult for me to vote to impose the death penalty.” In response to a question asking whether her views on the death penalty would cause her to refuse to find a defendant guilty of first degree murder in order to prevent the penalty phase from taking place, she wrote that, while she was “morally and philosophically against the death penalty,” she “could never vote ‘not guilty’ if [she] had no doubt of the defendant’s guilt.” She also indicated she would not vote against a special circumstance allegation that had been proven beyond a reasonable doubt, just to prevent a penalty phase.

In response to a question asking whether her views on the death penalty would cause her to vote automatically for life in prison without considering the penalty phase evidence, she wrote, “I hope I don’t have to face this question. It is not possible for me to automatically vote in any direction.

This would be very, very tough for me, however.” On the last question, whether she could set aside her own personal feelings regarding what the law ought to be and follow the law as the court explained it to her, she wrote “yes.” During voir dire, K.K. stated that she was “strongly against” the death penalty, but she also stated she felt she could decide the guilt phase based on the facts and law in the case without regard to penalty or punishment.

In response to the question whether she could vote for death in the penalty phase, she stated she could not vote for the death penalty “under any circumstances.” The prosecutor challenged her for cause. In response, defense counsel requested that the court ask her if she could, in fact, impose the death penalty as directed by the court and as directed by the oath she had taken.

The court asked her whether she would be able to consider and vote for the death penalty as an alternative to life in prison without the possibility of parole, and she replied, “I could not vote for the death penalty.” There was no objection or any further request for elaboration from defense counsel, and the trial court excused K.K. for cause. b.

Analysis The federal constitutional standard for dismissing a prospective juror for cause based on his or her views of capital punishment is, “ ‘[W]hether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Uttecht v. Brown (2007) 551 U.S. 1, 35 [167 L.Ed.2d 1014, 127 S.Ct. 2218, 2223], citing Wainwright v.

Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844].) Applying Witt, we have stated: “ ‘ “ ‘A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.’ [Citation.]” In addition, “ ‘[o]n appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.’ [Citations.]” ’ ” (People v.

Blair (2005) 36 Cal.4th 686, 743 [31 Cal.Rptr.3d 485, 115 P.3d 1145], quoting People v. Jenkins (2000) 22 Cal.4th 900, 987 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) Defendant contends the trial court erroneously excused K.K. for cause, claiming (1) the record does not support the trial court’s determination that she held views that would prevent or substantially impair her ability to perform her duties as a juror, and (2) the trial court failed to make sufficient inquiries to establish whether she held such views.

We conclude K.K.’s answers to the written questionnaire and during voir dire support the trial court’s ruling. As noted, K.K. indicated in her questionnaire answers that she was “strongly” opposed to the death penalty, that she did not think the death penalty should be imposed at all, and that she was morally and philosophically against the death penalty.

During voir dire, she stated she could not vote for the death penalty “under any circumstances.” When, at defense counsel’s request, the trial court further questioned her, she again unequivocally stated she “could not vote for the death penalty.” The record therefore fairly supports the trial court’s determination of her true state of mind. Because we conclude the record supports the trial court’s ruling, we also reject defendant’s contention that the trial court should have questioned the juror further before dismissing her.

In essence, defendant contends the trial court failed to ask the “appropriate” followup question, and implies that the trial court erred by failing to ask the exact question as suggested by defense counsel (namely, could she impose the death penalty as directed by the court and as directed by the oath she had taken?). But defendant provides no authority that the trial court was obliged to so state the question.

The question the trial court did ask K.K. (would she be able to consider and vote for the death penalty as an alternative to life in prison without the possibility of parole?) addressed defense counsel’s request for additional inquiry into her views and elicited an answer that supported the trial court’s exclusion of the juror. B. Guilt Phase Issues 1. Sufficiency of the Evidence to Support the First Degree Murder Conviction and Torture Special Circumstance Finding Defendant contends insufficient evidence supported the jury’s first degree murder conviction and torture special circumstance finding.

As we explain, we conclude that substantial evidence supported the jury’s findings. At the close of the prosecution’s case-in-chief, the defense filed a motion for a judgment of acquittal pursuant to

section 1118.1, which the trial court denied. Defendant challenges the sufficiency of the evidence in connection with the trial court’s denial of his

section 1118.1 motion. The standard applied by the trial court under

section 1118.1 in ruling on a motion for judgment of acquittal is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction. (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. 2 [6 Cal.Rptr.2d 822, 827 P.2d 388].) “In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves.

Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [1] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] ‘[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]” (People v.

Guerra, supra, 37 Cal.4th at p. 1129.) The prosecution offered two theories of first degree murder: premeditated and deliberate murder, and murder by torture. Defendant challenges the sufficiency of the evidence that defendant entertained the requisite mental state for either theory of first degree murder. In particular, defendant contends that, under People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942], there was insufficient evidence of premeditation and deliberation for either theory.

For a killing with malice aforethought to be first rather than second degree murder, the intent to kill must be formed upon a preexisting reflection and have been the subject of actual deliberation or forethought. (People v. Anderson, supra, 70 Cal.2d at p. 26.) In contrast, murder by means of torture, a statutorily listed type of first degree murder (§ 189), does not require an intent to kill, but requires the intent to torture, and requires the same proof of deliberation and premeditation as is required of other kinds of first degree murders. (People v.

Steger (1976) 16 Cal.3d 539, 546 [128 Cal.Rptr. 161, 546 P.2d 665].) “The elements of torture murder are: (1) acts causing death that involve a high degree of probability of the victim’s death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. [Citations.]” (People v. Cook (2006) 39 Cal.4th 566, 602 [47 Cal.Rptr.3d 22, 139 P.3d 492].) As discussed below, the evidence produced at trial provides sufficient evidence of both theories of first degree murder argued by the prosecutor.

The evidence of Kesha’s wounds support first degree murder by torture. The evidence indicates that she was brutally kicked or punched, and that, after she was incapacitated, the perpetrator methodically poured hot cooking oil onto various portions of her body, repositioning her body so as to inflict numerous bums throughout her body, including her genital region. As we have stated, the jury may infer the required mental state for murder by torture from the condition of the victim’s body. (People v.

Mincey, supra, 2 Cal.4th at p. 433.) Here the condition of the body, with the numerous methodical bum wounds inflicted, abundantly supports the jury’s finding that defendant had the willful, deliberate, and premeditated intent to cause extreme pain or suffering for a sadistic purpose. The methodical infliction of the bum wounds also supports first degree murder on a theory of premeditated and deliberate intent to kill, especially in combination with the other evidence presented at trial indicating defendant’s intent to kill Kesha.

Evidence of Kesha’s injuries in the period prior to the murder indicated that defendant continually abused her. As the prosecutor argued, defendant’s continuing and escalating acts of abuse showed his premeditated and deliberate intent to eventually kill her. Furthermore, on the day of the murder, defendant took deliberate advantage of Hill’s absence, and the fact that Kesha was alone with him, to inflict his most extreme abuse in the form of the blows and burning oil torture that caused her death.

Evidence of defendant’s actions after he inflicted the fatal wounds also supports the inference that he deliberately intended to kill Kesha. When Hill returned home to find her daughter grievously injured, defendant initially dissuaded Hill from seeking medical help by lying to her about the nature and extent of Kesha’s injuries, and then actively prevented her from calling 911 until after Kesha died. Defendant contends our discussion in People v.

Anderson, supra, 70 Cal.2d at pages 26 through 27, indicates there was insufficient evidence to support a showing of premeditation and deliberation under either theory of first degree murder. We disagree. As we have observed, the Anderson factors are simply an aid for the reviewing court, and an “[u]nreflective reliance” on People v. Anderson is inappropriate. (People v.

Thomas (1992) 2 Cal.4th 489, 517 [7 Cal.Rptr.2d 199, 828 P.2d 101].) Defendant contends that, because the child abuse inflicted by defendant appears senseless and inexplicable, there is insufficient evidence to support first degree premeditated murder. But the lack of a discemable rational motive does not preclude a conviction for first degree premeditated murder. (See People v. Edwards (1991) 54 Cal.3d 787, 814 [1 Cal.Rptr.2d 696, 819 P.2d 436].) We previously have upheld the sufficiency of a first degree murder conviction in the context of child abuse and torture. (People v.

Mincey, supra, 2 Cal.4th at pp. 432-436.) As discussed above, the evidence in this case likewise supports the jury’s finding of first degree murder. Finally, we conclude sufficient evidence supported the jury’s true finding on the torture-murder special-circumstance allegation. The special circumstance requires that a murder be “intentional and involve[] the infliction of torture.” (§ 190.2, subd. (a)(18); see People v.

Elliot (2005) 37 Cal.4th 453, 479 [35 Cal.Rptr.3d 759, 122 P.3d 968] [“the requisite torturous intent is an intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any other sadistic purpose”].) As the above analysis shows, the evidence supports the jury’s conclusion that the murder both was intentional and involved the infliction of torture. 2.

Admission of Prior Acts of Child Abuse Defendant contends the trial court erroneously admitted evidence of his prior acts of physical abuse against children, in violation of Evidence Code sections 1101, subdivision (b), and 352. As we explain, we conclude that the evidence was properly admitted. a. Background Through an in limine motion, the prosecutor sought the admission of testimony from defendant’s ex-girlfriend, D. Robertson, that defendant had kicked and hit his two children from that relationship, S. and J., when they were young.

Defense counsel objected that the evidence was irrelevant and inadmissible under Evidence Code sections 1101 and 352. The trial court tentatively ruled the evidence involving S. and J. was admissible to show intent, motive, and absence of accident, and that the probative value of the evidence outweighed any prejudicial effect. Later, at trial, in a sidebar conference during Robertson’s testimony, the prosecutor stated he was seeking admission of the evidence in order to show intent and absence of accident, but not motive. The trial court so instructed the jury immediately before Robertson’s testimony.

As summarized above, Robertson testified defendant hit and kicked S. and J. when they were one and three years old, respectively. b. Analysis Evidence Code

section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such

an act.” (See People v. Catlin (2001) 26 Cal.4th 81, 145 [109 Cal.Rptr.2d 31, 26 P.3d 357].) “Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant’s bad character or criminal propensity.” (Ibid.) As with other circumstantial evidence, its admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence or absence of some other rule requiring exclusion. (People v.

Roldan (2005) 35 Cal.4th 646, 705 [27 Cal.Rptr.3d 360, 110 P.3d 289].) “On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion.” (People v. Kipp (1998) 18 Cal.4th 349, 369 [75 Cal.Rptr.2d 716, 956 P.2d 1169].) As noted, the trial court admitted defendant’s prior acts of child abuse to show intent and absence of accident.

Treating intent and absence of accident as distinct and separate bases for admissibility, defendant first contends that evidence of his intent in his prior acts of child abuse was irrelevant to any element of intent required for the charged crimes of first degree premeditated murder and first degree murder by torture. Defendant contends that the evidence he kicked and hit his two children showed neither premeditation, intent to kill, nor intent to torture.

But the trial court’s use of “intent” and “absence of accident” merely reflects two ways of describing the same relevant issue, namely, that defendant performed the acts that killed Kesha intentionally rather than accidentally. The prosecution’s burden of proving all the elements of the charged offenses included the threshold showing that the acts that caused Kesha’s death were performed intentionally rather than accidentally, and defendant’s prior acts of violence against other children were relevant to proving this. As to absence of accident, defendant acknowledges that Evidence Code

section 1101, subdivision (b), permits the admission of other-crimes evidence to show absence of accident, but he contends such evidence can only be admitted when a defendant has introduced accident as a defense. Defendant argues that he never offered an accident defense. Rather, he contends his defense was that Hill caused the fatal wounds, and that, even if his defense was that she might have done so accidentally, this did not amount to an accident defense for himself. Defendant construes the purpose of absence of accident evidence too narrowly. Certainly, when a defendant admits committing

an act but denies the necessary intent for the charged crime because of mistake or accident, other-crimes evidence is admissible to show absence of accident. (People v. Robbins (1988) 45 Cal.3d 867, 879 [248 Cal.Rptr. 172, 755 P.2d 355].) But we have never limited evidence of absence of accident to such instances. Rather, a defendant’s plea of not guilty puts in issue all the elements of the charged offense. (People v. Roldan, supra, 35 Cal.4th at pp. 705-706; People v.

Balcom (1994) 7 Cal.4th 414, 422-423 [27 Cal.Rptr.2d 666, 867 P.2d 777].) Furthermore, defendant declined to stipulate that Kesha’s wounds were caused intentionally. (See People v. Roldan, supra, 35 Cal.4th at p. 706, fn. 24.) Indeed, defendant offered expert testimony to support the theory that Kesha’s bums were caused accidentally. We also note that the defense opening statement raised the possibility that defendant accidentally caused Kesha’s fatal internal injuries when he slipped and fell while carrying Kesha to the shower following the bums allegedly caused by Hill.

This expressly placed the question of accident in issue for the prosecution’s case-in-chief, notwithstanding that, when defendant ultimately testified, he denied falling with Kesha. Finally, defendant contends that, even if the other-crimes evidence was admissible under Evidence Code

section 1101, subdivision (b), the evidence should have been excluded under Evidence Code

section 352 because its probative value was substantially outweighed by the probability that it would cause undue prejudice. Defendant essentially contends that evidence of child abuse is intrinsically highly inflammatory. But, as discussed above, the evidence was probative of the issue of intent and absence of accident. The prior child abuse evidence was far less inflammatory than the evidence of Kesha’s injuries, and this decreased the possibility that the jury’s passions were inflamed by the evidence of defendant’s uncharged child abuse. (See People v.

Ewoldt (1994) 7 Cal.4th 380, 405 [27 Cal.Rptr.2d 646, 867 P.2d 757].) Defendant also contends the prior child abuse evidence should have been excluded because the events took place between seven and 10 years before the date of the charged murder. But, on this record, we cannot conclude that the passage of time significantly lessened the probative value of the evidence. (See, e.g., ibid.; People v. Ing (1967) 65 Cal.2d 603, 612 [55 Cal.Rptr. 902, 422 P.2d 590].) Therefore, we conclude the trial court did not abuse its discretion under Evidence Code sections 1101, subdivision (b), and 352. 3.

Limitation of Impeachment of Prosecution Witness D. Robertson Defendant contends the trial court erred in refusing to permit the defense to present significant evidence impeaching prosecution witness D. Robertson, which violated Evidence Code

section 352. As we explain, we conclude the trial court did not abuse its discretion in limiting the impeachment evidence. a. Background As discussed in the immediately preceding part, prosecution witness Robertson testified to defendant’s past acts of child abuse.

On cross-examination, the trial court allowed defense counsel to impeach her credibility by eliciting testimony that she had (1) accused defendant of sexually abusing their daughter, even though the accusation did not result in criminal charges being filed against him; (2) failed to attend a court-ordered appointment for counseling in connection with those allegations; (3) failed to report to the police or seek medical attention for defendant’s acts of abuse towards her children; and (4) been arrested in connection with a shooting incident in 1989.

The trial court, however, sustained the prosecutor’s objections under Evidence Code

section 352 to defense questioning about whether defendant had broken up with Robertson because he had caught her in bed with one of his friends, Dean Morgan. In the sidebar discussion about the objection, defense counsel argued Robertson’s affair with Morgan was relevant because it explained why defendant had left Robertson and therefore cleared up any misconception the jury might have formed that Robertson left defendant because he abused their children.

The court agreed with defense counsel that evidence about who left whom first and for what reason was relevant, and the court allowed the defense to so inquire, but restricted defense counsel from going into detail about any affairs. In his cross-examination, defense counsel established that defendant left Robertson before she made her allegations that defendant was abusing the children.

Defense counsel then asked her whether she and defendant had separated because she was having an affair with someone else, and she answered “no.” The trial court also sustained the prosecutor’s relevance objections to certain defense questions connected to Robertson’s 1989 shooting incident, namely (1) whether she was having an affair with a man named James Mooney in 1989; (2) whether she shot towards Mooney’s wife, Judith Mooney, during the incident; (3) whether she lied to the police and her probation officer about the shooting incident; and (4) whether, when the police investigated the shooting incident, she agreed to come out of her house only after a SWAT team arrived.

On redirect examination, the prosecutor established that Robertson was convicted of a misdemeanor for the 1989 shooting incident. On recross examination, Robertson stated she fired two shots from a .270-caliber deer rifle at a location near Judith Mooney’s car while Judith Mooney’s children were in the car, but she denied shooting at Judith Mooney. The trial court sustained the prosecutor’s relevance objection when defense counsel asked her whether her case was originally charged as a felony.

Later, when Judith Mooney was scheduled to testify as part of the defense case, the prosecutor objected on Evidence Code 352 grounds to any testimony by Judith Mooney concerning the details of the 1989 shooting incident, which, as Robertson already admitted, had resulted in a misdemeanor conviction against her. Defense counsel opposed the restriction. He argued that Robertson had lied both at the time of the shooting and on the witness stand, and he contended that the defense was entitled to impeach her credibility by calling both Judith Mooney and a police officer named Fontecchio to testify about the incident.

Defense counsel made an offer of proof that Judith Mooney would testify that, when she went to Robertson’s residence, Robertson fired shots directly at Mooney and her seven-year-old child while they were both in their car, and that Robertson pointed the weapon at Mooney’s child. Defense counsel said that Officer Fontecchio would testify that he responded to the scene and found three shell casings, that one bullet had struck the ground close to Mooney’s car, and that Robertson told him that she shot into the air rather than at anyone in particular.

The trial court ruled that Mooney’s testimony would be more probative than prejudicial but also stated that, while it would permit Mooney to briefly recite the facts of the shooting incident, it would not allow a detailed examination of the subject. As to Officer Fontecchio, the court found that the probative value of his testimony was outweighed by the risks of consuming undue time, and confusing the jury and the issues to be decided. It therefore sustained the prosecutor’s objections to his testimony.

As summarized above, Judith Mooney testified that in 1989, Robertson fired three shots from a rifle at Mooney and her children when Mooney went to Robertson’s house to talk to her. b. Analysis A trial court may restrict defense cross-examination of an adverse witness on the grounds stated in Evidence Code

section 352. (People v. Quartermain (1997) 16 Cal.4th 600, 623 [66 Cal.Rptr.2d 609, 941 P.2d 788].) Defendant, however, contends the trial court abused its discretion by excluding testimony concerning Robertson’s alleged affairs and Officer Fontecchio’s testimony on the 1989 shooting incident. We conclude the trial court did not abuse its discretion by excluding both areas of testimony. (People v.

Chatman (2006) 38 Cal.4th 344, 372 [42 Cal.Rptr.3d 621, 133 P.3d 534].) As to the evidence of Robertson’s alleged affair with Dean Morgan, the trial court allowed defense counsel to cross-examine Robertson about defendant’s motive for leaving her, namely, that it was because of an alleged affair on her part (which she denied). The trial court’s ruling allowed the defense to explore the issues relevant to the breakup of defendant and Robertson while properly excluding the irrelevant inquiry into the specifics of her alleged affair with Morgan.

Similarly, the trial court properly excluded questioning about Robertson’s alleged affair with James Mooney. The relevance of defense counsel’s inquiry into the 1989 shooting incident with Judith Mooney was to impeach Robertson for moral turpitude on the basis of a criminal act, which was the shooting, not her alleged affair with James Mooney. Robertson’s alleged affair with James Mooney might have revealed the source of the animosity between Robertson and Judith Mooney that may have led to the shooting. But this was a collateral issue properly excluded by the trial court.

The court also properly excluded the testimony of Officer Fontecchio. The court allowed Judith Mooney to testify about the shooting incident in connection with the limited issue of Robertson’s credibility. As the court noted, what was relevant was a brief recitation by Mooney of the facts of the conduct involved, not a detailed examination or a retrial of the shooting incident. The testimony of Officer Fontecchio would have resulted in precisely such a retrial of a prior offense that Robertson had already admitted.

Furthermore “[a] trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.” (People v.

Quartermain, supra, 16 Cal.4th at pp. 623-624.) Here, the additional impeachment value of the excluded evidence was minimal in relation to the major areas of impeachment already raised by the admitted evidence, and a reasonable jury would not have received a significantly different impression of Robertson’s credibility even if the excluded evidence had been admitted. 4. Admission of Evidence of Victim’s Prior Injuries Defendant contends the trial court erroneously admitted evidence of his prior acts of physical abuse against Kesha, in violation of Evidence Code sections 1101, subdivision (b), and 352.

As we explain, we conclude the evidence was properly admitted. a. Background Through an in limine motion, the prosecutor sought the admission of evidence of injuries Kesha suffered in the months before she was killed. The prosecutor stated he was filing his motion in response to the trial court’s order that the prosecution reveal all evidence proffered under Evidence Code

section 1101, subdivision (b). The prosecutor, however, contended that, although proffered evidence of defendant’s acts of physical abuse towards children other than the murder victim (i.e., defendant’s biological children, S. and J.) implicated Evidence Code

section 1101, subdivision (b), evidence of past injuries to the murder victim did not. Rather, citing People v. Aeschlimann (1972) 28 Cal.App.3d 460 [104 Cal.Rptr. 689], the prosecutor contended that evidence of past injuries to the murder victim was independently admissible as part of the res gestae of the murder by torture charge. The defense objected to the admission of evidence of Kesha’s past injuries on the ground that there was no evidence defendant had inflicted the injuries, and that they were too remote in time to be relevant. The trial court ruled the evidence was admissible under both Evidence Code

section 352 and

section 1101, subdivision (b). b. Analysis Defendant contends the evidence of Kesha’s past injuries was not admissible under either of the two theories raised below: (1) to show intent or absence of accident under Evidence Code

section 1101, subdivision (b), or (2) as part of the res gestae of the crime of murder by torture. In arguing against the admissibility of this evidence under Evidence Code

section 1101, subdivision (b), defendant makes the same contentions he made in arguing against the admissibility of evidence of defendant’s past acts of physical abuse against his biological children, discussed above. (See ante, at pp. 203-205.) He contends the evidence of Kesha’s prior injuries did not show an intent to torture or kill, and that such evidence therefore was not admissible to show absence of accident, because defendant did not offer an accident defense. For the same reasons stated above, we reject defendant’s contentions and conclude the trial court properly admitted the evidence under Evidence Code

section 1101, subdivision (b). Defendant’s prior acts of violence against the victim are indisputably relevant to showing intention and absence of accident. (See People v. Zack (1986) 184 Cal.App.3d 409, 415 [229 Cal.Rptr. 317].) Finally, we need not, and therefore do not, reach the prosecutor’s alternate argument that the evidence was also admissible as part of the res gestae of the crime of torture murder. 5. Cross-examination of Defendant on Past Acts of Child Abuse Defendant contends the trial court erroneously permitted the prosecution to cross-examine defendant about his acts of child abuse against his niece, Kayla, in violation of Evidence Code

section 352. As we explain, we conclude the trial court did not abuse its discretion in permitting the cross-examination. a. Background During in limine motions, the prosecution sought the admission of several prior acts of child abuse committed by defendant, including two separate incidents involving defendant’s niece, Kayla, in which he had intentionally broken her leg and put glue in her mouth. Defense counsel opposed the admission of any evidence of defendant’s past acts of child abuse, including the incidents involving Kayla.

The trial court tentatively ruled that all the proffered incidents of child abuse were admissible except the glue incident, which the court ruled was more prejudicial than probative under Evidence Code

section 352. Notwithstanding the trial court’s ruling, the prosecution did not call any witness during its guilt phase case-in-chief to testify about the incident involving Kayla’s broken leg. Later, as part of his guilt phase defense, defendant testified on his own behalf and stated that he was a “barker,” who disciplined children with his loud voice rather than with physical violence.

During cross-examination, the prosecutor sought to refute defendant’s description of himself as nonviolent by questioning him about his acts of violence against his former wives and girlfriends, including his ex-wife Dorina, who was the mother of defendant’s niece, Kayla. Defense counsel objected under Evidence Code

section 1101 and on relevancy grounds to any questions concerning defendant’s acts of violence against his former wives and girlfriends. The prosecutor argued for the admissibility of defendant’s past acts of violence against women as refuting defendant’s testimony, and also reminded the court of its ruling on the in limine motion allowing the use of evidence of Kayla’s broken leg.

The court sustained defense objections against questions about defendant’s acts of violence against adult women, but ruled that it would stand by its previous ruling on the in limine motion involving acts of child abuse and stated “if you have violence against children, I’ll allow that in.” The prosecutor then questioned defendant about an incident 10 years earlier when he was left in charge of his four-month-old niece Kayla and her left femur was broken. As set forth above, defendant testified that Kayla broke her upper femur after she fell from his lap.

Defendant became furious when child protective services workers asked him questions about the incident, and he was arrested for assault. The prosecutor then cross-examined defendant about the incident a few months later when Kayla, once again left in defendant’s care, ended up with wood glue in her mouth. Defendant testified he did not think it was necessary to take her to the emergency room. Rather, as suggested on the glue bottle, he washed out her mouth with water. b. Analysis Defendant contends the trial court abused its discretion under Evidence Code

section 352 in allowing the prosecution to cross-examination defendant about the two incidents involving Kayla. As a preliminary matter, respondent contends defendant has forfeited this claim on appeal because the only Evidence Code

section 352 objection defense counsel made to the cross-examination concerned questions about defendant’s acts of violence against adult women (which was sustained); defense counsel, however, failed to object to the trial court’s ruling as it pertained to the Kayla incidents, either during the sidebar conference or during the actual cross-examination itself. But the issue is preserved on appeal because, as summarized above, during in limine motions, defense counsel had objected to the admission of both Kayla incidents on Evidence Code

section 352 grounds. The issue is preserved because (1) a specific legal ground for exclusion was advanced through an in limine motion and subsequently raised on appeal; (2) the in limine motion was directed to a particular, identifiable body of evidence; and (3) the in limine motion was made at a time, either before or during trial, when the trial judge could determine the evidentiary question in its appropriate context. (People v. Morris (1991) 53 Cal.3d 152, 190 [279 Cal.Rptr. 720, 807 P.2d 949], disapproved on other grounds in People v.

Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [38 Cal.Rptr.2d 394, 889 P.2d 588].) Indeed, the trial court referenced its in limine ruling concerning child abuse at the cross-examination sidebar conference. In any event, on the merits, both Kayla incidents were relevant to the cross-examination of defendant. Both incidents were probative of the issue of defendant’s credibility, since he described himself as someone who would never administer violent physical discipline or abuse to a child, and both incidents involved possible acts of violent physical discipline or abuse to a child.

Furthermore, as with the other instances of defendant’s past acts of child abuse discussed above (see ante, at pp. 203-205), the probative value of neither incident was outweighed by the probability that it would create a substantial danger of undue prejudice. 6. Admission of Photographs of the Victim Defendant contends

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