People v. Gonzales

Defendant Veronica Utilia Gonzales was convicted of murdering Genny Rojas. 1 The jury found as special circumstances that the murder was intentional and involved the infliction of torture, 2 and occurred while defendant was engaged in the commission and attempted commission of mayhem. 3 It returned a verdict of death. On this automatic appeal, we affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase

1. Prosecution

Defendant was the aunt of Genny Rojas. Genny and her siblings were removed from the custody of defendant’s sister Mary Rojas, after Mary went into a drug rehabilitation program and her husband was arrested for child molestation. Genny was first placed with defendant’s mother, but defendant agreed to take Genny in because her mother had other children to care for. Early in 1995, when she was four years old, Genny came to live with defendant, her husband Ivan, and their six children in an apartment in Chula Vista.

On the evening of July 21, 1995, Marisa Lozano, a young neighbor in the apartment building, was standing outside when she heard a child crying in defendant’s apartment. Shortly thereafter, she heard a bang, “like if something hit a wall.” The…

I concur with the majority’s conclusion that there was no reversible error in the guilt phase portion of the trial. I also agree that portions of the prosecutor’s letter to Genny Rojas were “plainly improper.” (Maj. opn., ante, at p. 952.) I disagree, however, with the majority’s holding that the reading of the letter was harmless error. To be reversible error, there need only be a reasonable possibility that the jury would have returned a verdict of life without possibility of parole if the prosecutor had not improperly appealed to the jury’s passions. Based on this record, I cannot say there is no reasonable possibility. On the basis of this one issue, I would conclude the sentence of death must be reversed.

I fully recognize that many cases have held that a prosecutor’s argument, although emotional, does not cause the proceedings to cross over into the realm where emotion reigns over reason. (E.g., People v. Leonard (2007) 40 Cal.4th 1370, 1418 [ 58 Cal.Rptr.3d 368 , 157 P.3d 973 ] [“ ‘Emotion must not reign over reason and, on objection, courts should guard against prejudicially emotional argument.’ ”].) Neither the cases cited by the parties nor any case I have located,…

I. FACTS

A. Guilt Phase 1. Prosecution Defendant was the aunt of Genny Rojas. Genny and her siblings were removed from the custody of defendant‘s sister Mary Rojas, after Mary went into a drug rehabilitation program and her husband was arrested for child molestation. Genny was

1 Penal Code, section 187, subdivision (a). Further undesignated statutory references are to the Penal Code. 2 Section 190.2, subdivision (a)(18). 3 Section 190.2, subdivision (a)(17)(J). 1 first placed with defendant‘s mother, but defendant agreed to take Genny in because her mother had other children to care for. Early in 1995, when she was four years old, Genny came to live with defendant, her husband Ivan, and their six children in an apartment in Chula Vista. On the evening of July 21, 1995, Marisa Lozano, a young neighbor in the apartment building, was standing outside when she heard a child crying in defendant‘s apartment. Shortly thereafter, she heard a bang, ―like if something hit a wall.‖ The crying stopped. Ivan Gonzales looked out a window, then shut it and closed the curtains. A few minutes later Ivan came out of the apartment, slammed the door, and left, looking angry. Marisa‘s Aunt Noemi…