People v. Gonzales, No. S067353.

CourtUnited States State Supreme Court (California)
Writing for the CourtCORRIGAN
Citation281 P.3d 834,144 Cal.Rptr.3d 757,2012 Daily Journal D.A.R. 10633,12 Cal. Daily Op. Serv. 8704,54 Cal.4th 1234
PartiesThe PEOPLE, Plaintiff and Respondent, v. Ivan Joe GONZALES, Defendant and Appellant.
Decision Date02 August 2012
Docket NumberNo. S067353.

54 Cal.4th 1234
281 P.3d 834
144 Cal.Rptr.3d 757
12 Cal.
Daily Op. Serv. 8704
2012 Daily Journal D.A.R. 10,633

The PEOPLE, Plaintiff and Respondent,
v.
Ivan Joe GONZALES, Defendant and Appellant.

No. S067353.

Supreme Court of California

Aug. 2, 2012.



[144 Cal.Rptr.3d 772]Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Craig Buckser, Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.


CORRIGAN, J.

[281 P.3d 846]

[54 Cal.4th 1242]Defendant Ivan Joe Gonzales was convicted of murdering Genny Rojas. 1 The jury found as a special circumstance that the murder was intentional and involved the infliction of torture.2 However, it was unable to reach a penalty verdict. Another jury was impaneled,

[281 P.3d 847]

and the second penalty phase trial resulted in a death verdict.3

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.

[144 Cal.Rptr.3d 773]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 [54 Cal.4th 1243]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 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

[281 P.3d 848]

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.

[54 Cal.4th 1244]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, [144 Cal.Rptr.3d 774]who was identified as Genevieve Rojas. He noted a second- to third-degree burn from her waist to her feet, and other burns 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 burn 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 bruising 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 bruised. There were recent burns on both cheeks, in a grid pattern matching the grill on a hairdryer found in the Gonzales apartment. Similar burns appeared on the shoulders and left bicep. Genny's lip was lacerated and torn 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. Bruises 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.

[54 Cal.4th 1245]The most significant injury, and the cause of death, was the burn on the lower part of Genny's body. It appeared to be an immersion burn, 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 burn expert confirmed that the burn 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 burn 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 burn on Genny's scalp could have been caused by hot water striking the top of her

[281 P.3d 849]

head and flowing onto her neck and [144 Cal.Rptr.3d 775]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 burn on Genny's lower body.

In one bedroom, the area behind the...

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