THE PEOPLE, Plaintiff and Respondent, v. IVAN JOE GONZALES, Defendant and Appellant, 54 Cal. 4th 1234

Opinion CORRIGAN, J. Defendant Ivan Joe Gonzales was convicted of murdering Genny Rojas. The jury found as a special circumstance that the murder was intentional and involved the infliction of torture. However, it was unable to reach a penalty verdict. Another jury was impaneled, and the second penalty phase trial resulted in a death verdict. I. FACTS A. Guilt Phase 1. Prosecution Genny Rojas was four years old when she died in July 1995. She and her siblings had been removed from their mother’s custody in April 1994, because their mother was abusing drugs and neglecting the children.

They were placed with their grandmother, Utilia Ortiz. While in Ortiz’s care, Genny appeared to the social worker to be happy and well cared for. However, she was a difficult child, fearful and prone to tantrums. Ortiz soon placed Genny in the care of Ortiz’s daughter Anita and her husband Victor Negrette. After four months, the Negrettes decided that Genny had needs they were unable to meet. They returned her to Ortiz toward the end of 1994. In February 1995, Ortiz sent Genny to live with another daughter, Veronica, and her husband Ivan Gonzales, the defendant in this case.

The Gonzaleses had six children of their own and lived in a two-bedroom apartment in Chula Vista. On the evening of July 21, 1995, two neighbors were standing outside a window of the Gonzales apartment. They heard a loud bang, or thud, as if something had hit a wall inside the apartment, immediately followed by the sound of a child crying. Defendant came to the window, looked out, and shut the window forcefully. He emerged from the apartment, slammed the door, and walked off toward a nearby liquor store. He appeared to be angry and in a hurry.

Defendant entered the liquor store, where he was a regular customer, at 8:45 p.m. He asked for and received credit, purchased some grocery items, and left after five or 10 minutes. Around 9:00 that evening another neighbor, Patty Espinoza, heard Veronica Gonzales screaming for help. Veronica said her niece had been burned in the bathtub. Patty came out of her apartment and asked how anyone could be burned in the bathtub. Veronica asked Patty to come with her, and not call the police. In the Gonzales apartment, Patty saw a child lying on the floor. Defendant was nearby.

Patty told them she did not know how to perform cardiopulmonary resuscitation (CPR), but that her sister Naomi did. Patty ran to get Naomi, who also lived in the building, and told the Gonzaleses to call 911. Veronica, however, repeatedly said not to call the police. Naomi Espinoza had heard the commotion, and came out of her apartment upon hearing that a child was not breathing. She saw defendant carrying a little girl. Naomi, a nurse’s assistant, had CPR training. She asked defendant what had happened, and he replied that the child had burned herself in the bathtub.

Questioned further by Naomi, defendant explained that the child did not know how to regulate the water. Naomi told him to take the child into Patty’s apartment. Defendant did so, and put her down on the rug. Naomi testified that she knew the child was dead, “just by looking at her.” Nevertheless, she checked for a pulse and attempted CPR. The body was cold, the lips white. Naomi noticed scars on the body and a bald spot on the head. Shortly after the first police officers arrived, Naomi left the apartment. A 911 call was placed around 9:20 p.m. Sergeant Barry Bennett responded, along with other officers.

As he approached the apartment, Veronica met him and directed him inside. Bennett found a little girl lying on the floor. Checking her vital signs, he detected no pulse or breathing. He did not attempt CPR. The body was very cold and felt rigid, indicating to him that the child had been dead for some time. The shirt she was wearing was dry, as were her skin and hair. While he was examining the body, Veronica told Bennett she had put the child in the tub, run the water, and gone to the kitchen to cook dinner. After about 20 minutes, she returned to the bathroom and found the child under the water.

Bennett noted that defendant sat nearby, and described his demeanor as “nonchalant.” Bennett called in homicide and child abuse investigators. It was obvious to him that the death was not accidental and the child had been abused. The entire lower part of her body appeared to have been burned, and there were numerous other injuries. Fireman John Miller arrived at the apartment at 9:25 p.m. He too assessed the child, and found her cold and without a pulse. He prepared to perform CPR, but found the jaw clenched and difficult to move. Miller concluded that rigor mortis had set in.

A medical examiner came to the scene around 1:00 a.m. He performed a preliminary external examination of the victim, who was identified as Genevieve Rojas. He noted a second to third degree bum from her waist to her feet, and other bums on her face, arms, and torso. Rigor mortis, which begins to develop within an hour or two of death, was present. An autopsy was conducted the next morning. Genny was thin and small, but adequately nourished. Her body was covered with injuries. A large burned area on top of Genny’s head had only partially healed. This injury was infected, and at least a week old.

It could have been caused by hot liquid, possibly on more than one occasion. The back of the head was also burned. There was hair loss, both in the burned area and elsewhere. A similar bum appeared on the back of the neck and shoulder. The skin on Genny’s ears had been eroded, exposing the cartilage. There were also abrasions at the end of her eyebrows and on the bridge of her nose. These injuries could have been caused by rough fabric tightly bound around her head. There was braising around both eyes, probably inflicted within a day or two of death.

Pinpoint hemorrhages in the right eye were typical of strangulation. The cheekbone, shoulder, and neck were braised. There were recent bums on both cheeks, in a grid pattern matching the grille on a hair dryer found in the Gonzales apartment. Similar bums appeared on the shoulders and left bicep. Genny’s lip was lacerated and tom away from the gum. Numerous small injuries on her face could have been inflicted with a hairbrush. She had suffered a subdural hematoma, the result of a blow or shaking within a day of her death, and an older brain hemorrhage that had been caused by a violent blow.

Genny’s neck bore a ligature mark, extending upward behind her left ear. This injury was a week or two old. A similar scar ran from her jawbone to the underside of her chin. There were triangular scars on top of her left shoulder. On her arms were parallel scars typical of the marks left by handcuffs. Handcuffs matching the marks on Genny’s arms were recovered from the Gonzales apartment. Her arms and wrists also had abrasions, which could have been caused by binding with a cord. Braises on the inside of her thighs suggested she had been grabbed from behind with a great deal of force.

Ulcerated areas on both heels in the area of the Achilles tendon were consistent with erosion from binding. The most significant injury, and the cause of death, was the bum on the lower part of Genny’s body. It appeared to be an immersion bum, with spared areas behind the knees, in the groin area, and on the buttocks indicating that Genny had been held down in a fetal position in the tub, with her arms out of the water. Death would have occurred within two to three hours. There was no evidence of drowning. Genny’s thymus gland was atrophied, a sign of prolonged stress.

It was clear to the examiner that she had been chronically and repeatedly abused. A pediatric bum expert confirmed that the bum was an immersion injury. He estimated the water temperature at 140 degrees or higher. It would have been seven or eight inches deep, and Genny must have been held down firmly, leaning forward a little. The bum injury could have been inflicted in 10 seconds or less; it could not have occurred gradually. With treatment, the chances of survival would have been around 90 percent. However, within one to four hours of infliction, Genny would have gone into shock.

Death could occur quite rapidly thereafter in a child of her age. The bum on Genny’s scalp could have been caused by hot water striking the top of her head and flowing onto her neck and shoulders. The expert did not believe it was accidentally inflicted, or that it could have been caused by Genny tipping over a pot of hot water on the stove. Officer Bennett went to the Gonzales apartment shortly after he examined Genny’s body in Patty Espinoza’s apartment. The bathtub in the Gonzales bathroom appeared to be dry, as did the bathroom floor.

Human tissue subsequently found in the tub was consistent with Genny’s DNA, and not with defendant’s or Veronica’s. It took 15 minutes to fill the tub with hot water. When full, the water was eight and a half inches deep, and 140 degrees. At that temperature, it would have taken six to eight seconds to cause the bum on Genny’s lower body. In one bedroom, the area behind the door was cordoned with a string fastened to the doorknob at one end, and to the knob of a nightstand placed against the wall at the other. In this triangular area there was an indentation in the wallboard, 36 inches from the floor.

There were bloodstains in the indentation, and on the wall around and below it. A blanket behind the door was stained with matter consistent with Genny’s DNA. The closet in this bedroom yielded a considerable amount of bloodstain evidence. The closet doors were off their tracks, and leaned into the closet. A metal hook was fastened to the closet bar mounting bracket. On the floor beneath the hook was a wooden box, measuring about two feet in all three dimensions. A hole in one of the closet doors afforded a view of the hook. On the wall of the closet, below the hook and above the box, were many bloodstains.

Some were created by hair wiping against the wall, others were the result of blood being flung against the wall. There was blood on the closet bar, the hook, and the cloth fastening the hook to the bar. There was a bloody footprint on the wall, but no handprint. There was blood on the edge of the box, and both blood and feces in the box. The interior of the closet door was spattered with blood.

The bloodstains were consistent with a scenario in which a bleeding child Genny’s size was suspended from the hook in the closet, rubbing some blood on the surfaces around her and casting some off as she swung back and forth, bracing herself with her feet on the box and the wall. Genny’s DNA was consistent with blood samples taken from the closet. Defendant was interviewed by detectives at 9:45 a.m. on the morning after Genny’s death. A videotape of the interview was played for the jury.

He said Genny had not been toilet trained, and they had problems with her “goin’ to the bathroom a lot, in her pants and on the floor.” The previous evening, he and Veronica had put Genny in the bath together, and he had “set the water on warm.” Only they and their children were in the apartment. After 10 minutes or so Veronica told defendant to check on Genny, but he was distracted by a loud bang and checked on the other children instead. He went to the store and bought milk, bread, and beer, returning in about 10 minutes. Veronica was making dinner.

After another 10 minutes or so, she went to check on Genny, and screamed for defendant. He found Veronica taking Genny out of the bathtub. He tried to perform CPR, but it was not helping, so Veronica went to get help from Patty next door. Defendant said Genny had a lot of marks on her body, which he attributed to her habit of peeling and picking at her own skin. The bum on her head had happened when she knocked over a pot of boiling water. They had not gotten a Medi-Cal card for Genny from Veronica’s mother, so they tried to care for the burn themselves. Genny would mb her head against the walls.

Defendant said the ligature mark on Genny’s neck was caused by “neighbor kids” pulling on a candy necklace. He had not noticed the hair dryer bums on Genny’s face. Defendant admitted that he and Veronica made Genny sleep in the closet three or four times. He also said he put her in the box a couple of times, to scare her. Defendant claimed the hook above the box was also meant to scare Genny, but he denied ever tying her to the hook. The hole in the closet door was used to hold a stick on which they would dry clothing, according to defendant.

He said they never handcuffed Genny, though Veronica tied her hands with cloth once. He insisted they did not hold Genny down in the hot water. The jury also watched a videotape of preliminary hearing testimony by defendant’s oldest child, Ivan, Jr., who was eight years old when he testified. He said Genny did not sleep with the other children, but in his parents’ room or in the bathtub. Her hands and feet were tied when she was in the tub. The children’s bedroom had no doorknob, and Ivan, Jr., could look through the hole in the door and see into the bathroom.

There was a sliding lock on the outside of the bedroom door. On the night Genny died, Ivan, Jr., and the other children were locked in their room. Ivan saw Genny in the bathtub, through the hole in the door. Then he heard her screaming and crying, but he did not look again. He did not see his father put water in the tub. After his mother screamed, his father came to the door and told the children to stay in the room. His father seemed to be sad. When Genny came to live with them,, she had all her hair and no marks or bruises on her face.

Ivan, Jr., said she lost her hair when his mother burned her, and pulled out her hair. He saw both his parents pulling her hair out, many times. He added that he had watched through the hole in the door on many occasions when his mother and father burned Genny with hot water in the bathtub. “They would put her in the tub and they would start putting hot water, and then a few of her hairs would come off.” Genny would lie down in the tub, and his father would hold her head down, with his mother helping. Hot water would come out of the spout, and Genny would scream and cry.

Ivan, Jr., never saw her get burned by a pot of hot water on the stove. Genny would scratch her head on the wall, and when she did his parents would hit her with a belt. Ivan, Jr., said that Genny was potty trained and did not have accidents going to the bathroom. He saw Genny in the closet in his parents’ room many times, with her hands tied. He saw her on the floor of the closet, and also in the box. One time he saw Genny hanging in the closet, “in a basket,” with her hands tied and her feet off the ground. The rest of the children ate in the kitchen, but Genny ate in the parents’ room.

Sometimes Ivan, Jr., would give Genny food, when she was crying for it. If his parents discovered this, they would hit him. Once they made him and his siblings throw balls at Genny. Ivan, Jr., would “throw it crooked” because he did not want to hurt her. Ivan, Jr., said his mother would usually get what she wanted if his parents disagreed about something. He was afraid of his father, but not of his mother. He thought his mother was afraid of his father, who hit her. However, his mother often told his father what to do, and sometimes he would obey. 2.

Defense Juan Lozano, a nephew of Patty and Naomi Espinoza, testified that when Genny’s body was brought into Patty’s apartment he tried to perform CPR, before Naomi arrived. He had no difficulty moving Genny’s jaw in order to clear an airway. Lozano said Genny was cold, with no pulse or breath. Her hair was damp. A social worker testified that on July 24, 1995, shortly after Genny’s death, Ivan, Jr., told her that he did not hear Genny cry, but did hear her say “ow,” and then his mother had found her in the water. He said he was afraid of his father, but not of his mother.

He told the social worker that he did not see anyone hit Genny and did not think his parents would hurt her. On subsequent meetings before the preliminary hearing, he said nothing about Genny being abused. He did say that Genny rarely came out of his parents’ bedroom. The rest of the defense case was primarily aimed at establishing that Veronica was the dominant spouse in defendant’s marriage. The owner of a grocery store near the Gonzales apartment testified that she saw defendant in the store on a daily basis, and he was quiet and submissive.

Veronica, on the other hand, who came in monthly to cash her check, was assertive and outgoing. When defendant was along he would stay behind Veronica, watching the children, and let her do the talking. Veronica would tell him which brand of cigarettes she would buy for him. Guadalupe Baltazar, defendant’s sister, testified that she had seen Genny at defendant’s apartment twice. The first time, about a month after she had come to live with them, she was playing with the other children and appeared normal. The second time, shortly after the Fourth of July, she had a towel wrapped around her head.

Baltazar knew Genny had burned her head, because she was present a couple of weeks earlier when defendant came to their mother’s house and asked for money to buy ointment. At the Gonzales apartment, Veronica took the towel off and showed Baltazar the bum, which had formed a scab on Genny’s head and shoulder. There were no cuts or scars on her face, arms, or legs. The Gonzaleses had lived with Baltazar for a while, and she saw them on social occasions. She never saw defendant verbally or physically abuse Veronica, but once, as defendant was working on a car, Veronica angrily slammed the hood on his head.

She also pulled some wires out of the car and yelled at defendant, who did not respond other than to tell her to “knock it off.” Patricia Andrade, another of defendant’s sisters, testified that Veronica was verbally and physically abusive toward him. Eugene Luna had supervised defendant when he worked as a garbage truck driver. Luna had socialized with the Gonzaleses, and never saw defendant being physically aggressive with his wife. He had seen Veronica on one occasion hit defendant in the mouth with her fist, during an argument.

His general impression was that Veronica was in charge of the household and made the decisions. Defendant once told Luna that Ivan, Jr., had seen Luna’s son kissing Veronica. He asked Luna to talk to his son about this, but the son denied having an affair with Veronica. Defendant had seemed nervous and embarrassed. Later, Luna’s son admitted the affair and said a child had been bom as a result. Defendant never mentioned the matter again. About six months later the Gonzaleses moved and Luna had no further contact with them.

Eugene Luna, Jr., testified that he had an affair with Veronica for a few months when he was 16 or 17. On one occasion, defendant had challenged him about the affair, and took a swing at him. Luna, Jr., swung back, knocked defendant down, then helped him up. That was the end of the confrontation. Veronica became pregnant and named Luna, Jr., as the father. Luna, Jr., once saw Veronica become angry with defendant, throw a plate at him, and hit him in the mouth. Another time, after a night of drinking, Veronica had lost her temper when defendant tried to help her roll up a car window.

She cursed at defendant and kicked the dashboard of the car. Witnesses called the police, who ended up spraying Luna, Jr., and defendant with Mace, and arresting Veronica. Lorena Peevler knew defendant because her ex-husband was defendant’s best Mend. Defendant was quiet and shy as a teenager. Lorena became friends with Veronica, and the Gonzaleses lived with the Peevlers for a few months. Veronica picked fights with defendant, yelling at him. She also hit him and scratched him. Defendant Med to protect himself, but did not hit back. After one fight, he ran away and climbed a utility pole.

The police came to get him down. Lorena saw Veronica as the boss in the relationship. Frank Peevler testified that he and defendant grew up together. Defendant’s parents were not abusive. Defendant was shy and timid around girls. Frank also viewed Veronica as the dominant partner in the Gonzales relationship. 3. Rebuttal On rebuttal, the prosecutor called Martha Halog, a neighbor of the Gonzaleses in the apartment building where Genny came to live. Halog had overheard an argument in which defendant verbally abused Veronica.

Victor Negrette, Veronica’s brother-in-law, testified that defendant was a jealous and overprotective husband. He and Veronica argued a lot, and on one occasion she asked Negrette to come get her because defendant had hit her. Negrette heard defendant yell and curse at Veronica many times. He had also seen defendant yanking one of the Gonzales boys by the arm, hitting him with a plastic bat, and kicking another son. Negrette once saw defendant angrily punch out the windows of a car parked near the Gonzales apartment. B.

Penalty Phase The jury that found defendant guilty of murder was unable to reach a penalty verdict, dividing eight to four. The penalty phase was retried before a new jury. The prosecutor relied on evidence of the crime similar to the showing made at the guilt phase. Defendant recapitulated his guilt phase defense, and also provided witnesses testifying to his good behavior in prison, his character when he was growing up, his Catholic upbringing, his children’s love for him, and the effect his execution would have on them, his siblings, and his parents. II. DISCUSSION A. Guilt Phase Issues 1.

Pretrial Motions Defendant challenges the trial court’s denial of a series of pretrial motions. These rulings require no extended discussion, because they conform with established California law and defendant develops no arguments persuading us to change our settled views. Thus: Individual and sequestered voir dire of prospective jurors in capital cases is not required. (People v. McKinnon (2011) 52 Cal.4th 610, 632-633 [130 Cal.Rptr.3d 590, 259 P.3d 1186]; People v.

Gonzales, supra, 51 Cal.4th at p. 956.) The court properly denied defendant’s motion for a jury instruction that a sentence of life without the possibility of parole would mean that he was actually ineligible for parole. (People v. Salcido (2008) 44 Cal.4th 93, 164 [79 Cal.Rptr.3d 54, 186 P.3d 437]; People v.

Kennedy (2005) 36 Cal.4th 595, 641 [31 Cal.Rptr.3d 160, 115 P.3d 472].) The court’s denials of defendant’s motion to set aside the indictment and motions on related grounds by Veronica, in which defendant joined, were not error on any of the following grounds: inclusion of inapplicable aggravating factors (People v. Lomax (2010) 49 Cal.4th 530, 593 [112 Cal.Rptr.3d 96, 234 P.3d 377]); failure to designate factors as aggravating or mitigating (People v.

Gonzales and Soliz (2011) 52 Cal.4th 254, 334 [128 Cal.Rptr.3d 417, 256 P.3d 543]); failure to require written findings on aggravating factors (id. at p. 333); failure to require proof beyond a reasonable doubt as to aggravating factors, the balance of aggravating and mitigating factors, and the appropriateness of death as the penalty (ibid.); lack of intercase proportionality review (ibid.); use of the adjectives “extreme” and “substantial” in

section 190.3 factors (Gonzales and Soliz, at p. 334); asserted vagueness of the

section 190.3 factors (Gonzales and Soliz, at p. 334); or prosecutorial discretion over whether to seek the death penalty (People v. Gonzales, supra, 51 Cal.4th at p. 958.) Defendant makes no attempt to explain how any of these factors may have been a proper ground for setting aside the indictment. He merely relies on general constitutional arguments that have consistently been rejected by this court. The trial court properly denied defendant’s motion to strike the torture-murder special-circumstance allegation.

Defendant contends the definition of torture murder is unconstitutionally vague and fails to adequately distinguish between death-eligible torture murderers and other torture murderers. We have held otherwise. (People v. Chatman (2006) 38 Cal.4th 344, 394 [42 Cal.Rptr.3d 621, 133 P.3d 534]; People v. Barnett (1998) 17 Cal.4th 1044, 1161-1163 [74 Cal.Rptr.2d 121, 954 P.2d 384].) Defendant claims the defects in the special circumstance were particularly problematic under the facts of his case and the instructions given to the jury. These matters were beyond the scope of his pretrial motion to strike.

Defendant moved for the jury venire to be drawn from the South Bay Judicial District of San Diego County, where the crime was committed and where he claimed there was a higher percentage of Latino residents. The trial court’s denial of this motion was supported by law. (People v. Coddington (2000) 23 Cal.4th 529, 573-574 [97 Cal.Rptr.2d 528, 2 P.3d 1081]; O’Hare v.

Superior Court (1987) 43 Cal.3d 86, 93-97 [233 Cal.Rptr. 332, 729 P.2d 766].) Defendant offers no specific argument other than to claim, without reference to the record, that it was unfair for defendants charged with homicides occurring in the North County Judicial District to have juries drawn from that district, while those charged with homicides in the South Bay Judicial District had juries drawn from the entire county. He did not make this argument below, and it is not properly before us on appeal. Defendant also challenges the court’s denial of Veronica’s motion to quash the jury venire, in which he joined.

The motion was based on the exclusion of noncitizen residents and felons, grounds that we have rejected. (People v. Pride (1992) 3 Cal.4th 195, 227 [10 Cal.Rptr.2d 636, 833 P.2d 643]; People v. Karis (1988) 46 Cal.3d 612, 631-634 [250 Cal.Rptr. 659, 758 P.2d 1189].) Finally, defendant claims the court erred by denying his motion for supplemental discovery of the charging practices of the district attorney, which was aimed at showing racial discrimination in the decision to pursue the death penalty. Defendant concedes that he failed to provide a plausible justification under People v.

McPeters (1992) 2 Cal.4th 1148, 1171 [9 Cal.Rptr.2d 834, 832 P.2d 146], and People v. Ashmus (1991) 54 Cal.3d 932, 980 [2 Cal.Rptr.2d 112, 820 P.2d 214], but asks us to reconsider those precedents. We decline to do so. (See In re Seaton (2004) 34 Cal.4th 193, 202-203 [17 Cal.Rptr.3d 633, 95 P.3d 896].) 2.

Defendant’s Waiver of His Right to Be Present Defendant contends he did not validly waive his right to be present on four occasions: the initial meetings with prospective jurors before the guilt phase and again before the penalty phase retrial, and two sessions of voir dire exploring prospective jurors’ claims of hardship before the guilt phase. Before trial, the court announced that it would use the jurors’ lounge to meet with the first group of 300 to 400 prospective jurors. The parties would then return to the courtroom to go through the forms filled out by prospective jurors claiming hardship.

The court said that defendant might not want to be present for the initial meeting in the jurors’ lounge, and noted that defendants routinely waived the right to be present for such proceedings. The court explained: “He’s got a right to be present. If he wants to be, he will be. Most defendants don’t want to do that. He will have to be—he’ll be in custody. There will be extra marshals around him. He won’t be in as secure a setting so there will be extra security. He’ll be in waist chains and handcuffs which can, to some extent, be covered up by clothes.

But the overall picture that’s presented to the jury isn’t going to be quite the same one that we would be able to do here in the courtroom.” Defense counsel said his client would waive the right to be present on that day. The court told defendant what would be happening at the first meeting with the venire. It advised him that he had the right to be present but extra security would be required in the jurórs’ lounge, meaning that “you’ll be in chains.” Defendant said he was willing to give up his right to attend the proceedings in the jurors’ lounge.

On the court day before the first meeting, defense counsel asked the court to be sure the court’s records reflected that defendant’s presence was not required, “just so that he doesn’t end up sitting in a holding tank all day.” At the meeting in the jurors’ lounge, the court explained the selection process, the time commitment that was required, and the bases for obtaining a hardship exemption. Those requesting an exemption filled out a form and were told to return in the afternoon.

The remaining prospective jurors were introduced to counsel, heard the charges against defendant, received some preliminary instructions, and were given questionnaires to complete. The court told them that defendant “is not present today but will be present at every future hearing.” In the afternoon, prospective jurors claiming hardship came to the courtroom, and the court questioned some of them individually.

This process continued the next court day, which the court began by announcing that defendant “is not present, having waived his presence for this initial phase of the jury selection.” Ten jurors were not granted hardship exemptions. The court read them the charges and gave them preliminary instructions. The court informed them again that while defendant was not present, he would be at all future hearings.

Before the penalty phase retrial, defense counsel reported that defendant was again willing to waive his right to be present in the jurors’ lounge for the “mass group” of prospective jurors, and asked the court to put his waiver on the record. The court again explained, more briefly this time, the nature of the proceedings and asked defendant if he was willing to give up his right to be present. Defendant said “yes.” Defendant now claims his waivers were invalid, and notes that he never waived his right to be present in court when the hardship voir dire was conducted before the guilt phase.

He argues that the court improperly required him to choose between his right to be present and his right not to be shackled in front of the jury. Defendant contends his constitutional rights to be present under the Sixth and Fourteenth Amendments, and

article I, sections 7 and 15 of the California Constitution, were violated, as well as his statutory right to be present under

section 977, which could only be waived in writing (§ 977, subd. (b)(1)). “ ‘Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent “interference with [his] opportunity for effective cross-examination.” ’ [Citation.] ‘Due process guarantees the right to be present at any “stage that is critical to [the] outcome” and where the defendant’s “presence would contribute to the fairness of the procedure.” ’ [Citation.] ‘ “The state constitutional right to be present at trial is generally coextensive with the federal due process right. [Citations.]” [Citation.] Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant’s personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. [Citations.]’ [Citation.] ‘Defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.’ [Citation.]” (People v.

Blacksher (2011) 52 Cal.4th 769, 799 [130 Cal.Rptr.3d 191, 259 P.3d 370].) Here, the trial court was too quick to declare that defendant would be subjected to physical restraints if he chose to be present. It did not make the required specific findings of manifest need for restraints. (See Deck v. Missouri (2005) 544 U.S. 622, 633 [161 L.Ed.2d 953, 125 S.Ct. 2007]; People v. Duran (1976) 16 Cal.3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322].) It is reasonable to conclude that defendant’s decision to be absent was influenced, in part, by the prospect of being shackled.

The court should also have secured a written waiver, as required by statute. (§ 977, subd. (b)(1).) Nevertheless, we have rejected claims of error based on a defendant’s absence from jury screening discussions. (E.g., People v. Rogers (2006) 39 Cal.4th 826, 855-856 [48 Cal.Rptr.3d 1, 141 P.3d 135]; People v. Ervin (2000) 22 Cal.4th 48, 72-74 [91 Cal.Rptr.2d 623, 990 P.2d 506]; People v. Hardy (1992) 2 Cal.4th 86, 178 [5 Cal.Rptr.2d 796, 825 P.2d 781].) In any event, defendant fails to bear his burden of showing prejudice.

Defendant does not contend he might have provided assistance to his counsel during these essentially administrative jury selection proceedings. His only claim of prejudice is that the prospective jurors may have gotten the impression that he, charged with a horrible crime, “callously did not bother to show up at his own capital trial.” Such a speculative and peripheral consideration is insufficient to establish a reasonable probability (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]) or a reasonable doubt as to the eventuality of a result more favorable to defendant had he been present (Chapman v.

California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]; People v. Gonzales, supra, 51 Cal.4th at p. 953). Experienced defense counsel saw no need for defendant’s presence. The prospective jurors were preoccupied with the mechanics of filling out questionnaires. They were well aware of the large number of venire members, and the sometimes tedious process of jury selection. At the guilt phase, they were told by the court that defendant would be present at all future proceedings, and he was.

It is unlikely that the prospective jurors at either phase thought any the less of defendant because he was not personally present at this early stage of the proceedings. 3. Exclusion of Evidence That Veronica Was Abused as a Child Defendant claims the court violated his fundamental right to present a complete defense by refusing to allow him to introduce evidence that his wife Veronica had witnessed and experienced child abuse in her own family, similar to the abuse inflicted on Genny Rojas.

Defendant contends this was circumstantial evidence of third party liability, which did not amount to improper propensity or profile evidence. He alternatively argues that even if it was proper to bar this evidence on state law grounds, the exclusion violated his federal constitutional rights. Defendant further contends that if his murder conviction is upheld, the torture-murder special circumstance should be vacated because the evidence of Veronica’s childhood experiences would have negated the intent-to-kill element. At trial, defendant made an offer of proof consisting of four documents and an expert witness.

He presented a juvenile court petition from August 1980, stating that Veronica’s mother, Utilia Ortiz, had brought her 16-year-old daughter Mary (who eventually became Genny’s mother) to a sheriff’s station and stated she could not control her. Mary had scratches and bruises on her arms, legs, shoulders and back, which she said were the result of her mother’s beatings with sticks and boards. Mary said the bruises were minor compared to others her mother had inflicted. Defendant also offered reports detailing interviews with a cousin, an uncle, and a friend of Veronica’s.

The cousin recalled that Ortiz drank heavily and was “scary” when drunk, starting fights with her husband. Mary was a stubborn and difficult child, while Veronica and Anita were the favored daughters. The cousin was unable to recall specific incidents, but in August 1980 a social worker had noted the cousin’s report that Ortiz had hit Mary with a broomstick and lit a pile of newspapers at her bare feet, causing Mary to run away.

The cousin said that once, when drunk, Ortiz had “pulled the girls by their hair and pulled them around the house.” Veronica’s uncle said that Mary had shown him bums Ortiz inflicted on her. Ortiz yelled and cursed at the girls, but Veronica had been spared to some degree because she was the favorite of Ortiz’s husband. Ortiz fought with various family members when drunk. Veronica’s friend had heard Veronica and Mary describe their abuse in 1986. Mary remembered that Ortiz would “tie them back to back and set their legs on fire.” Veronica said she also remembered that.

When asked if Ortiz had tortured them, the girls said “yes.” Defendant also proffered the testimony of Dr. Patricia Perez-Arce, a neuropsychologist with expertise in the social development of Latino children. At a hearing held under Evidence Code

section 402, Dr. Perez-Arce testified that defendant’s family exemplified traditional Mexican-American values. Veronica’s family did not share these values, due to her mother’s drunkenness and violence. Her mother had provided a model of poor impulse control and violent reaction to stressful or threatening situations. Those experiences would have influenced Veronica in dealing with her own frustrations as a mother. Perez-Arce conceded that Veronica’s biological children were well cared for, but opined that Genny’s arrival in the household created stress that caused Veronica to become abusive.

Genny may have become the target of that abuse because she had been imposed on Veronica by her mother, because Veronica and Mary had an “adversive” relationship, and because, according to defendant, Veronica suspected him of having had an affair with Mary and perhaps of fathering Genny. On cross-examination, Perez-Arce said she had no data on how frequently abused children became abusers themselves, but thought it occurred less than half the time. She also acknowledged that Latino men, like men in general, were more likely to physically abuse their children than Latina women.

The trial court, after extended consideration, decided defendant had proffered character evidence that was inadmissible under Evidence Code

section 1101. The court further ruled that applying this state rule of evidence did not violate defendant’s federal constitutional rights to present a defense, because the evidence of Veronica’s childhood abuse, while probative to some degree, was weak and speculative insofar as it reflected on her behavior toward Genny. We review the court’s rulings under Evidence Code

section 1101 for abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1003 [81 Cal.Rptr.3d. 299, 189 P.3d 300].) Defendant argues that his proffer did not amount to “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) He notes he did not offer evidence that Veronica had committed prior acts of child abuse. However, the prohibition on character evidence is not so limited.

The statute is aimed at evidence of a person’s “propensity or disposition to engage in a certain type of conduct,” when “offered as a basis for an inference that he behaved in conformity with that character on a particular occasion.” (Cal. Law Revision Com. com., 29B pt. 3B West’s Ann. Evid. Code (2009 ed.) foil. § 1101, p. 221.) This is precisely what defendant sought to establish by offering evidence of Veronica’s childhood experiences. He wanted the jury to infer that she, not he, was responsible for abusing Genny due to a propensity that developed during her youth. Defendant seeks to distinguish People v.

Walkey (1986) 177 Cal.App.3d 268 [223 Cal.Rptr. 132], which the trial court found persuasive. There, the prosecution called an expert to testify that Walkey, who had been an abused child himself, fit the profile of a battering parent. The court held that this was impermissible character evidence. (Id. at p. 276.) Defendant insists he offered no similar “profile” evidence. However, to the extent he sought to establish that Veronica modeled her conduct on her mother’s behavior, he necessarily claimed that Veronica’s childhood experiences had resulted in a character trait predisposing her to abuse Genny.

The court properly ruled that this evidence was barred by Evidence Code

section 1101. (See People v. McWhorter (2009) 47 Cal.4th 318, 372-373 [97 Cal.Rptr.3d 412, 212 P.3d 692] [Evid. Code, §1101 applies to third party culpability evidence]; People v. Abilez (2007) 41 Cal.4th 472, 502-503 [61 Cal.Rptr.3d 526, 161 P.3d 58] [same]; People v. Davis (1995) 10 Cal.4th 463, 501 [41 Cal.Rptr.2d 826, 896 P.2d 119] [same].) Defendant contends the evidence showed that Veronica had learned abusive methods of discipline as a child by observing her mother. He compares this case to People v.

Griffin (2004) 33 Cal.4th 536, 582-583 [15 Cal.Rptr.3d 743, 93 P.3d 344], where the prosecution presented evidence that Griffin had learned slaughtering techniques while working at a meat company, which he then used on the murder victim. However, no specialized techniques were employed in the abuse of Genny Rojas. The more bizarre forms of abuse she suffered (being hung from a hook in a closet and branded with the grille of a hair dryer) required no expertise, nor were they similar to the abuse to which Veronica was allegedly exposed.

Likewise, the bums inflicted on Genny with hot water were neither technically arcane nor similar to what Veronica experienced. As for the beating, tying, and handcuffing Genny suffered, the employment of these forms of abuse takes no training. Griffin has no application here. Defendant further argues that the proffered evidence was admissible under two of the exceptions recognized in Evidence Code

section 1101, subdivision (b). He claims Veronica’s childhood experiences were relevant to establish her motive or her identity as Genny’s killer. (See People v. Roldan (2005) 35 Cal.4th 646, 705-706 [27 Cal.Rptr.3d 360, 110 P.3d 289].) Defense counsel made this argument below, but the trial court was not persuaded. It reasoned that, at bottom, defendant was trying to prove Veronica was likely to have abused Genny because of a character trait that developed from Veronica’s earlier experiences. The court was correct.

A person’s own prior misconduct may be admissible to show that the charged offense is so similar as to support an inference that the same person committed both acts, or to show that in light of the prior conduct the person must have harbored a similar intent or motive during the charged offense. (See Roldan, supra, 35 Cal.4th at p. 706; People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 [27 Cal.Rptr.2d 646, 867 P.2d 757].) Here, however, defendant did not offer specific acts of misconduct by Veronica as circumstantial evidence of her motive or identity.

Rather, he wanted to show that she had internalized the abuse she saw and experienced as a child, causing her to become an abusive mother. This is pure character evidence, well beyond the scope of Evidence Code

section 1101, subdivision (b). The trial court also properly rejected defendant’s contention that precluding him from introducing Veronica’s family history of child abuse would violate his federal constitutional rights to present a defense. As the high court explained in Holmes v.

South Carolina (2006) 547 U.S. 319 [164 L.Ed.2d 503, 126 S.Ct. 1727] {Holmes), a capital case: “ ‘[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.’ [Citations.] This latitude, however, has limits. ‘Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” ’ [Citation.] This right is abridged by evidence rules that ‘infring[e] upon a weighty interest of the accused’ and are ‘ “arbitrary” or “disproportionate to the purposes they are designed to serve.” ’ [Citation.]” (Holmes, supra, 547 U.S. at pp. 324-325.) “While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. [Citations.] Plainly referring to rules of this type, we have stated that the Constitution permits judges ‘to exclude evidence that is “repetitive . . . , only marginally relevant” or poses an undue risk of “harassment, prejudice, [or] confusion of the issues.” ’ [Citations.] “A specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged.

See, e. g., 41 C. J. S., Homicide § 216, pp. 56-58 (1991) (‘Evidence tending to show the commission by another person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded’); 40A Am.

Jur. 2d, Homicide § 286, pp. 136-138 (1999) (‘[T]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged .... [Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial’ (footnotes omitted)). . . .” (Holmes, supra, 547 U.S. at pp. 326-327; see People v.

Abilez, supra, 41 Cal.4th at p. 503.) Here, the trial court found that the evidence of Veronica’s childhood experiences was weak and speculative, so much so that it would not be admissible against Veronica at her own trial. That finding was amply supported. The incidents of abuse suffered by Veronica and Genny were distinctly dissimilar. Defendant offered to show that Veronica’s mother, in drunken rages, beat her teenage daughter Mary, lit newspapers at Mary’s feet, pulled her daughters’ hair, and tied Veronica and Mary together back-to-back and “set their legs on fire” in some unspecified manner.

There was scant evidence of the extent of the injuries actually inflicted in these incidents, and no indication they were life threatening. The trauma suffered by the four-year-old Genny was of another kind entirely. Genny was not merely beaten, tied up, and burned. She sustained hematomas, severe hair loss, and extensive bruising and scarring including multiple injuries inflicted by restraints. Her fatal scalding was the culmination of a prolonged and persistent course of concerted abuse.

While we do not minimize the seriousness of the abuse described in defendant’s offer of proof, his attempt to causally link the systematic torture of a small child with stories about intermittent mistreatment of Veronica and her sister when they were teenagers does not withstand scrutiny. The exclusion of this evidence was fully consistent with the principles set out in Holmes, supra, 547 U.S. 319, and resulted in no error affecting either the murder conviction or the torture-murder special circumstance. 4.

Exclusion of Evidence That Veronica Disliked Genny’s Mother Defendant sought to introduce two statements Veronica made about Mary Rojas, Genny’s mother, when Veronica was interviewed by a detective the morning after Genny’s death. Early in the interview, the detective asked where Mary lived. Veronica said Mary was in a rehabilitation facility, and when asked why, replied “Cause she’s a little bitch . . . .” Veronica then explained, in a rambling statement, “she just don’t care about nothing .... She would, she was losing her kids. The kids got taken away you know.

Her husband would, they’re very bad you know . . . whatever you know doing drugs. . . .” Much later in the interview, the detective pressed Veronica about why she did not know Genny was being scalded in the bath, asking, “can you tell me she never screamed?” Veronica replied, “She does not talk. Her damn mother. I’m not saying . . . I’m saying her damn mother gets her so goddamn freaked out.... She can be in there. You can ask the kids. The kids would even go and mess with the water . . . and would she talk?

No.” Defendant claimed these statements reflected Veronica’s animosity toward Mary, which would in turn support a conclusion that she acted on those feelings of animosity by singling out Genny for abuse. The court excluded the evidence, on the ground that it was too speculative to be relevant. The court noted there was no evidence linking Veronica’s antipathy for her sister with her feelings toward Genny. Again, the court indicated it did not believe the evidence would be admissible against Veronica to prove motive at her own trial.

The court’s ruling was within the broad scope of its discretion to determine relevance. (See People v. Cash (2002) 28 Cal.4th 703, 727 [122 Cal.Rptr.2d 545, 50 P.3d 332].) “Speculative inferences are, of course, irrelevant.” (People v. Stitely (2005) 35 Cal.4th 514, 549-550 [26 Cal.Rptr.3d 1, 108 P.3d 182]; see, e.g., People v. Rundle (2008) 43 Cal.4th 76, 129-130 [74 Cal.Rptr.3d 454, 180 P.3d 224].) Defendant points out that the Gonzales household was already a crowded one when Genny arrived, the couple faced economic challenges, and Genny was a troubled child who was difficult to handle.

These facts tend to reflect a disciplinary motive for the abuse suffered by Genny. However, Veronica’s statements about Mary included no indication of a desire to harm Genny. When the court made its ruling, no evidence offered by the defense suggested Veronica’s feelings about Mary led her to retaliate against Genny. Defendant notes that subsequently, in her proffered testimony on Veronica’s family background, Dr. Perez-Arce opined that one factor in Veronica’s behavior toward Genny may have been the “adversive relationship” between Mary and Veronica. That opinion, however, appears to be purely speculative. Dr.

Perez-Arce had not interviewed Veronica, and offered no factual support for her view. Defendant argues that the court’s exclusion of Veronica’s statements violated his federal constitutional rights to present a defense. The argument fails. As discussed above in part H.A.3., ante, the exclusion of weak and speculative evidence of third party culpability does not infringe on a defendant’s constitutional rights. (Holmes, supra, 547 U.S. at pp. 326-327.) 5.

Admission of Ivan, Jr.’s Preliminary Hearing Testimony Defendant raises a variety of challenges to the admission at trial of Ivan, Jr.’s preliminary hearing testimony. He claims (1) the testimony was barred by Evidence Code

section 1291; (2) the preliminary hearing court should have protected the child by quashing his subpoena; (3) the trial court should have protected the child by excluding the videotape of his preliminary hearing testimony; (4) the trial court should have found the child incompetent to testify at the preliminary hearing; (5) admission of the videotape violated defendant’s confrontation clause rights; (6) the preliminary hearing court denied defendant his right to a face-to-face confrontation with Ivan, Jr.; and (7) the preliminary hearing court erroneously sustained an objection when defendant’s attorney questioned the child about the consequences of lying.

None of these claims has merit. a. Evidence Code

Section 1291 Evidence Code

section 1291 provides a hearsay exception for former testimony when the witness is unavailable and “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” Defendant does not challenge the trial court’s ruling that Ivan, Jr., was unavailable because of the trauma that he would suffer if made to testify against his parents at their capital trials.

Defendant’s contention is that he did not have a meaningful opportunity to cross-examine Ivan, Jr., at the preliminary hearing because the child was placed in foster homes after Genny’s death, and defense counsel was unable to interview him or gain information about his mental condition. Defendant refers to various information coming to light after the preliminary hearing to support his argument that there were grounds for challenging Ivan, Jr.’s credibility of which counsel were unaware.

However, “Both the United States Supreme Court and this court have concluded that ‘when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement [citation], regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony. [Citation.]’ ” (People v.

Wilson (2005) 36 Cal.4th 309, 343 [30 Cal.Rptr.3d 513, 114 P.3d 758].) Here, the trial court made it clear that any subsequently developed evidence reflecting on Ivan, Jr.’s credibility could be introduced at trial. Defendant notes that his counsel gained access to Ivan, Jr.’s therapy records only after the preliminary hearing.

Those records showed that, before the hearing, the child’s therapist had made a note of a report by his foster mother that he and his little brother had been “kicking and hitting each other and also lying.” The day before the hearing, he told his therapist that he had had an experience of seeing double, and “I thought it was my soul.” Beginning around the time of the hearing, Ivan, Jr.’s social worker saw signs of depression and posttraumatic stress disorder.

At an unspecified time, the children’s attorney informed the juvenile court that he was concerned about the foster mother violating a court order against asking Ivan, Jr., about the case. The court instructed the social worker to tell the foster mother not to ask such questions. After the preliminary hearing, similar evidence developed: reports by Ivan, Jr., to his therapist of hallucinations, illusions, or lapses in memory; and a diagnosis of posttraumatic stress disorder and depression by a doctor who examined him to determine whether testifying at trial would be harmful.

We are satisfied that defendant’s lack of access to this evidence did not deprive him of a meaningful opportunity to cross-examine Ivan, Jr., at the preliminary hearing. Defense counsel thoroughly questioned the child about the differences between his preliminary hearing testimony and the earlier answers he gave to the police and the district attorney when they interviewed him about the events surrounding Genny’s death. This questioning by the authorities was far more significant than any questions the foster mother may have asked, and it was recorded.

Defendant’s claim that he could have undermined Ivan, Jr.’s credibility at the preliminary hearing by cross-examining the child about psychological issues is unpersuasive. An eight-year-old child’s grasp of such issues is necessarily limited. Ivan, Jr., had plainly been through a traumatic experience, and counsel was free to explore the effects of that experience on his memory. b. Harm to Ivan, Jr. Next, defendant claims the court erred by admitting Ivan, Jr.’s videotaped preliminary hearing testimony at trial, despite evidence that this would be damaging to the child.

Defendant provides us with no legal authority for this argument, or for his standing to raise it. Neither did he offer any authority on these points in his motion papers below. In any event, there was no error. The trial court addressed defendant’s claims, finding that there was some risk of damage to Ivan, Jr., from the use of his testimony, but that the risk was far outweighed by the value of the videotape to the prosecution’s case. The court did not abuse its discretion. Ivan, Jr.’s testimony had already been used against his parents at the preliminary hearing.

None of the experts to whom defendant now refers stated directly that the mere presentation of a videotape of the testimony at trial would cause undue harm. c. Ivan, Jr.’s Competence Defendant also claims the trial court erred by finding that Ivan, Jr., had been competent to testify at the time of the preliminary hearing. Under Evidence Code

section 701, subdivision (a), “[a] person is disqualified to be a witness if he or she is: [f]

(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through

interpretation by one who can understand him; or ['][]

(2) Incapable of understanding the duty of a witness to tell the truth.” Defendant relies, as he did below, on additional factors set out in a dependency case, In re Basilio T. (1992) 4 Cal.App.4th 155 [5 Cal.Rptr.2d 450] (Basilio T.).

There, the Court of Appeal stated: “In addition to an awareness of the difference between truth and falsehood, other prerequisites for competency as a child witness are the capacity to observe, sufficient intelligence, adequate memory, the ability to communicate, and an appreciation of the obligation to speak the truth.” (Id. at p. 167, fn. 7.) At the hearing on the question of Ivan, Jr.’s competence, defendant called Dr. Yanon Volcani, a child psychologist who had reviewed the documentary record and the tapes of Ivan, Jr.’s preliminary hearing testimony and state-ments to the police. Dr.

Volcani had interviewed the child’s paternal grandparents, but not the child himself or other caretakers. He testified that Ivan, Jr., had no perceptual difficulties or attention deficit disorder, but that there was a “significant probability” that his memory of the events about which he testified was “not necessarily accurate,” due to the chaotic Gonzales household and the boy’s stage of development. On cross-examination, Dr. Volcani affirmed that Ivan, Jr., was not incapable of understanding his duty to tell the truth, or unable to understand questions and express himself in an understandable way.

Questioned by the court, the doctor declined to state a definite opinion on whether Ivan, Jr.’s memories were accurate. On redirect examination by defense counsel, Dr. Volcani “free associated” a 68 percent likelihood that Ivan, Jr.’s preliminary hearing testimony was “influenced by other things than the actual events,” but said “it doesn’t mean they’re not accurate.” The trial court ruled that defendant had not carried his burden of proving by a preponderance of the evidence that Ivan, Jr., had been incompetent when he testified at the preliminary hearing. Dr.

Volcani clearly stated that the statutory factors governing the competency determination were satisfied, and the court found that opinion amply supported by the videotape of the child’s testimony. Regarding the Basilio T factor of whether Ivan, Jr., was able to distinguish truth from falsehood, the court observed that the doctor’s testimony was “less than direct.” The court concluded that Dr.

Volcani’s views reflected more on Ivan, Jr.’s credibility than on his “fundamental ability to distinguish truth from fiction.” The court added that the videotape, the testimony of other experts on the motion to quash, and the notes of Ivan, Jr.’s therapist confirmed its conclusion. It noted that defendant was free to present evidence challenging Ivan, Jr.’s credibility. We will uphold a trial court’s ruling on the competence of a witness in the absence of a clear abuse of discretion. (People v. Avila, supra, 38 Cal.4th at p. 589.) No such abuse appears here. Though defendant claims Dr.

Volcani’s testimony on the impairment of Ivan, Jr.’s memory was uncontradicted, the doctor expressly declined to say the child’s memories were inaccurate. The doctor’s “free association” of a likelihood of unspecified influences on Ivan, Jr.’s testimony lacked any basis in fact. Defendant’s reliance on cases barring the admission of hypnotically aided testimony is misplaced. Nothing suggests that Ivan, Jr.’s testimony was influenced by any such experience. d.

Confrontation Rights Defendant contends the introduction of Ivan, Jr.’s videotaped testimony violated his rights under the confrontation clauses of the federal and state Constitutions in several respects. First, defendant asserts he could not effectively cross-examine Ivan, Jr., at the preliminary hearing. However, “the Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” (Kentucky v. Stincer (1987) 482 U.S. 730, 739 [96 L.Ed.2d 631, 107 S.Ct. 2658]; see People v.

Wilson, supra, 36 Cal.4th at p. 343; People v. Carter (2005) 36 Cal.4th 1114, 1172-1173 [32 Cal.Rptr.3d 759, 117 P.3d 476].) As discussed above in part n.A.S.a., defendant had such an opportunity. Defendant’s constitutional arguments fare no better than his statutory arguments under Evidence Code

section 1291. Next, defendant claims the seating arrangement during the preliminary hearing violated his confrontation rights when the videotape of Ivan, Jr.’s testimony was played at trial. At the outset of the preliminary hearing, the prosecutor asked the court for “protective courtroom seating” for the juvenile witnesses, noting he had filed a written motion that morning and provided copies to defense counsel.

In the motion, the prosecutor asserted that both Ivan, Jr., and his brother Michael had expressed great fear of defendant and Veronica in conversations with the police and members of the prosecutor’s office. He asked that they be seated facing away from the defendants during the preliminary hearing. The preliminary hearing court granted the motion, ordering that the young witnesses be seated at an angle, not directly facing the defendants.

The podium for counsel, however, was placed so that the lawyers had eye contact with the witnesses during questioning, and the witnesses were free to look around the courtroom and make eye contact with defendants, if they desired. The court noted that this arrangement had been . discussed in chambers. Veronica’s counsel objected on the ground that the arrangement violated his client’s right of confrontation, expressing concern that the children had been coached and that the interests of “a search for the truth” called for the normal seating arrangement.

Counsel conceded, however, that if the prosecutor’s motion was to be granted, the seating arrangement contemplated by the court was “the least intrusive way of handling it.” Defendant’s counsel adopted these arguments and recited his reliance on the Sixth and Fourteenth Amendments, as well as the California Constitution. The court noted that both defense counsel were experienced, and expressed confidence in their ability to get at the truth.

The court said it was guarding against the intimidation of children “of tender age,” and noted that the defendants would be able to see and hear the witnesses, and would be “within eye contact” if the witnesses wished to look at them. Defendant relies on Coy v. Iowa (1988) 487 U.S. 1012, 1016 [101 L.Ed.2d 857, 108 S.Ct. 2798], for the proposition that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” As the high court noted in Maryland v.

Craig (1990) 497 U.S. 836 [111 L.Ed.2d 666, 110 S.Ct. 3157] (Craig), however, that right has never been held to be absolute, and Coy itself reserved the question whether exceptions may exist. (Craig, at p. 844.) The Craig court recognized an exception in child abuse cases, upholding a statute permitting the child victim to testify via one-way closed-circuit television, so long as the court makes a case-specific finding that the child would be traumatized by testifying in the defendant’s presence, and the child’s testimony is subject to adversarial testing through cross-examination. (Craig, at pp. 855-857.) Defendant argues that Craig is no longer viable.

He notes its partial reliance on Ohio v. Roberts (1980) 448 U.S. 56 [65 L.Ed.2d 597, 100 S.Ct. 2531], and claims that since the Roberts hearsay test was overruled in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct.' 1354], Craig's relaxation of the right to a face-to-face confrontation must also be deemed obsolete. (See Craig, supra, 497 U.S. at pp. 848-849.) We disagree. Crawford and its progeny are limited to “testimonial” hearsay statements, and say nothing about whether a witness who testifies in person must face the defendant. (Crawford, at pp. 61, 68; Bullcoming v.

New Mexico (2011) 564 U.S. _, - [180 L.Ed.2d 610, 131 S.Ct. 2705, 2713-2714]; see People v. Seijas (2005) 36 Cal.4th 291, 303 [30 Cal.Rptr.3d 493, 114 P.3d 742] [Crawford did not affect admissibility of prior testimony by unavailable witness].) Craig remains good law. Anticipating that conclusion, defendant claims the preliminary hearing court erred by failing to make a case-specific factual finding of necessity for an alternative arrangement for Ivan, Jr.’s testimony, as required under Craig.

Defendant observes that the prosecution made no factual showing to support its claim that Ivan, Jr., and his brother feared their parents, and contends the court’s concerns on this point were not based on any information specific to this case. It is important to note that at the preliminary hearing, defendant had no right to confront Ivan, Jr., personally. We have made it clear that the right to confrontation is a trial right that does not apply with full force at a preliminary hearing. (People v.

Miranda (2000) 23 Cal.4th 340, 349 [96 Cal.Rptr.2d 758, 1 P.3d 73].) Ivan, Jr.’s description of the events on the night of Genny’s murder could have been presented through hearsay testimony by police officers, without offending either the state or federal Constitution. (Miranda, at pp. 348-349.) Thus, there was no occasion for the preliminary hearing court to make Craig findings, and defense counsel did not request them.

Defendant, however, claims that when the videotape of the preliminary hearing testimony was introduced at trial, the seating arrangement for Ivan, Jr., violated his trial right to confront the witnesses against him. This is a particularly artificial argument, insisting on Craig findings even though no context for such findings ever arose. In any event, the claim fails on its merits. In People v.

Sharp (1994) 29 Cal.App.4th 1772 [36 Cal.Rptr.2d 117], which involved the same seating arrangement at trial as was employed at defendant’s preliminary examination, the court noted that the arrangement “resulted in only the most minimal interference with appellant’s right to confront his accuser.” (Id. at p. 1783.) It concluded that this minor interference was justified by the state’s interest in protecting the child witness and obtaining accurate testimony.

While the trial court had not made the findings required by Craig, the Sharp court had no difficulty ascertaining from the record that the seating arrangement was fully justified. (Sharp, at pp. 1783-1784; see Ellis v. U.S. (1st Cir. 2002) 313 F.3d 636, 650 [“the less the intrusion on Sixth Amendment rights, the less detail is required in a trial court’s findings”].) Here, while the preliminary hearing court made no factual findings on the need to shield Ivan, Jr., from defendant’s gaze, the trial court made extensive findings that the child would be traumatized if he were made to testify at trial.

Defendant does not dispute the vulnerability of the young witness, either at the time of the preliminary hearing or the time of trial. Indeed, defendant claims that testifying against his father was so traumatic for Ivan, Jr., that even the videotape should have been excluded from evidence. Here, as in Sharp, we conclude that the seating arrangement for the child witness’s testimony was fully justified by the record, and defendant’s confrontation rights were not violated when the videotape was introduced at trial.

The seating arrangement at the preliminary hearing satisfied the central concerns of the confrontation clause: “physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.” (Craig, supra, 497 U.S. at p. 846.) Finally, defendant claims he was deprived of his confrontation rights when the preliminary hearing court sustained an objection when defense counsel asked Ivan, Jr., about the consequences of lying. This claim borders on the frivolous. Defense counsel asked Ivan, Jr., a series of questions on this topic.

The child answered “yes” when asked if he would get in trouble if he lied in response to one of counsel’s questions. The court sustained a prosecutorial objection at this point. It proceeded to advise Ivan, Jr., about the importance of telling the truth, the consequences of lying in court (“you’d get in trouble”), and the unimportance of worrying about anything so long as he told the truth. Ivan, Jr., replied affirmatively when the court asked if he was “comfortable with that,” and both the court and defense counsel declared that their concerns were satisfied. No error can be conjured from this scenario.

The jury was exposed to a full exploration of Ivan, Jr.’s understanding of the need to be truthful when it watched the videotape. 6. Admission of Defendant’s Statements to Police Defendant contends he did not validly waive his Miranda rights before he spoke with detectives shortly after the murder. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) Defendant received a complete advisement of his rights. As defense counsel agreed when the suppression motion was argued, defendant both nodded his head and mouthed the word “yes” when asked if he understood the Miranda warnings.

However, he gave an unintelligible answer when a detective asked if he wanted to give his “side of the story.” The detective told defendant he had already spoken to Veronica, and advised him that her statement would be compared to his in court. The detective asked again if defendant would like to tell him what happened. Defendant said, “Um, well I,” and the detective began questioning him. Defendant interrupted to ask for a glass of water, and, while another detective went to get it for him, proceeded to answer the questions posed to him.

Defense counsel argued that the videotape did not establish a clear and unmistakable waiver, and that the mere fact his client had given a statement was insufficient. Counsel conceded that the statement itself was voluntary, telling the court, “We are not arguing that there were improper promises, inducements, or any of the other so-called voluntariness issues.” The court denied the suppression motion. It found that while defendant had clearly indicated he understood his rights, he never expressly agreed to waive them.

The detective had interrupted defendant just when he seemed to be responding to the invitation to give his side of the story. Nevertheless, the court concluded, based on several viewings of the videotape, that defendant had voluntarily agreed to give up his Miranda rights, as evidenced by his statements freely given with a full understanding of those rights.

The court noted that a Miranda waiver may be implied from a defendant’s behavior, and stated that it interpreted defendant’s behavior as amounting to a waiver in this case. “On review of a trial court’s decision on a Miranda issue, we accept the trial court’s determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda.” (People v. Davis (2009) 46 Cal.4th 539, 586 [94 Cal.Rptr.3d 322, 208 P.3d 78].) Here, the videotape provides substantial evidence supporting the trial court’s finding of an implied waiver.

The court’s ruling was also legally correct. “No particular manner or form of Miranda waiver is required, and a waiver may be implied from a defendant’s words and actions. [Citations.] In determining the validity of a Miranda waiver, courts look to whether it was free from coercion or deception, and whether it was ‘ “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” ’ [Citation.] Both aspects are tested against the totality of circumstances in each case, keeping in mind the particular background, experience and conduct of the accused. [Citation.]” (People v.

Davis, supra, 46 Cal.4th at pp. 585-586.) This court has long recognized that a defendant’s decision to answer questions after indicating that he or she understands the Miranda rights may support a finding of implied waiver, under the totality of the circumstances. (People v. Whitson (1998) 17 Cal.4th 229, 247-248 [70 Cal.Rptr.2d 321, 949 P.2d 18], citing cases.) Defendant briefly argues that no implied waiver should be found here, because the detective misled him by saying that Veronica’s statement would be used against him in court.

Defendant did not make this claim below, and in fact assured the court that no improper inducements had been employed. In any event, we are satisfied that the waiver here was “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” (Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 106 S.Ct. 1135].) Insofar as it was inaccurate for the detective to tell defendant that Veronica’s statement would be admissible against him, the practical impact of that statement was neither coercive nor deceptive.

It was certainly the case that defendant’s and Veronica’s statements would be closely compared during the investigation of the crime. The detective’s point was that it was in defendant’s interest to give his side of the story. Defendant chose to do so, with a full understanding of the nature of his Miranda rights and the consequences of abandoning them. 7.

Admission of Veronica’s Hearsay Statement In response to defendant’s showing that Veronica had been an abusive spouse, the prosecutor called Victor Negrette, Veronica’s brother-in-law, to testify on rebuttal about an incident in which Veronica told him that defendant had hit her. Defendant objected on hearsay grounds, pointing out that Veronica was not availablé for cross-examination. The court overruled the objection based on the hearsay exception for spontaneous statements. (Evid.

Code, § 1240.) Defendant contends the admission of this testimony violated his confrontation rights under the Sixth and Fourteenth Amendments, and

article I,

section 15 of the California Constitution. However, it is settled that “ ‘[o]nly the admission of testimonial hearsay statements violates the confrontation clause . . . .’ (People v. Gutierrez [(2009)] 45 Cal.4th [789,] 812 [89 Cal.Rptr.3d 225, 200 P.3d 847] . . . ; see also Michigan v. Bryant (2011) 562 U.S._, ___ [179 L.Ed.2d 93, 131 S.Ct. 1143, 1153].) . . . ‘The court [in Crawford v.

Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354]] explained that the confrontation clause addressed the specific concern of “[a]n accuser who makes a formal statement to government officers” because that person “bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” [Citation.]’ ” (People v. Loy (2011) 52 Cal.4th 46, 66 [127 Cal.Rptr.3d 679, 254 P.3d 980] (Loy), quoting Gutierrez, supra, 45 Cal.4th at pp. 812-813.) In People v.

Gutierrez, we held that a statement made by a three year old to his aunt was not testimonial. (Gutierrez, supra, 45 Cal.4th at p. 813.) In Loy, we reached the same conclusion about a statement the victim made to a friend. (Loy, supra, 52 Cal.4th at pp. 56, 66.) Here, Veronica’s statement to her brother-in-law plainly falls in the same category. Its admission did not violate defendant’s confrontation rights. (See Cal. Const., art. I, § 24 [state confrontation right affords no greater rights than federal Const.].) Defendant also claims the court abused its discretion under Evidence Code

section 1240 because Veronica’s statement to Negrette was not “made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240, subd. (b).) Defendant contends there was no evidence showing her statement was made “ ‘ “before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.” ’ ” (People v. Thomas (2011) 51 Cal.4th 449, 495 [121 Cal.Rptr.3d 521, 247 P.3d 886], quoting People v.

Poggi (1988) 45 Cal.3d 306, 318 [246 Cal.Rptr. 886, 753 P.2d 1082].) However, Negrette testified that Veronica was crying when she telephoned and asked him to come and get her, crying when he picked her up from defendant’s parents’ house, and still upset and crying when she described the fight that day during which defendant hit her. We cannot say the court erred in admitting this testimony. “ ‘[T]he discretion of the trial court is at its broadest’ when it determines whether an utterance was made while the declarant was still in a state of nervous excitement. (People v.

Poggi, supra, 45 Cal.3d at p. 319.)” (Thomas, supra, 51 Cal.4th at p. 496.) 8. Admission of Photographs and a Mannequin Defendant claims the trial court erred by admitting numerous photographs of Genny, as well as a mannequin used by an expert to demonstrate how her injuries were inflicted. Defendant refers generally to autopsy photographs and crime scene photographs, as well as to a picture of Genny while she was alive. He contends these exhibits were unduly inflammatory and gruesome, and thus should have been excluded under Evidence Code

section 352. We have rejected such arguments in the past, and do so again here. The evidence was highly relevant and no more gruesome than the crime. Defense counsel objected to the admission of the photographic evidence in limine. After a careful review, the court admitted the photographs showing Genny’s injuries, commenting that while particularly gruesome, they were relevant to show the extent of the injuries and the intent to kill and torture. Defendant claims the photographs were unusually graphic, and cumulative to the expert testimony.

However, we have reviewed the exhibits, and conclude the court did not abuse its discretion or violate defendant’s constitutional rights. “ ‘The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]’ (People v.

Crittenden [(1994)] 9 Cal.4th 83, 133-134 [36 Cal.Rptr.2d 474, 885 P.2d 887].) ‘[A] court may admit even “gruesome” photographs if the evidence is highly relevant to the issues raised by the facts, or if the photographs would clarify the testimony of a medical examiner.’ (People v.

Coleman (1988) 46 Cal.3d 749, 776 [251 Cal.Rptr. 83, 759 P.2d 1260].) ‘We have consistently upheld the introduction of autopsy photographs disclosing the manner in which a victim was wounded as relevant not only to the question of deliberation and premeditation but also aggravation of the crime and the appropriate penalty, all of which were at issue here. [Citations.]’ (People v. Cox (1991) 53 Cal.3d 618, 666 [280 Cal.Rptr. 692, 80

[…]