1

Filed 7/28/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

KA YANG,

Defendant and Appellant.

C080978

(Super. Ct. No. 11F04310)

APPEAL from a judgment of the Superior Court of Sacramento County, Steve W. 

White, Judge. Reversed.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julia A. Hoskans, Clara M. 

Levers, Deputy Attorney General, for Plaintiff and Respondent.
2

This is an excruciatingly tragic case.

A mother of four young children was found guilty by jury of first degree murder 

and assault on a child resulting in death, after she killed her youngest child and only 

daughter. There was no dispute that on an otherwise routine afternoon, defendant Ka 

Yang, while alone with her baby Mirabelle, placed the baby in a microwave oven and 

operated it for multiple minutes. These actions killed the baby, whom by all accounts 

was a child Yang cherished.

Defendant told her family and first responders that she did not know how the baby 

was injured, but she consistently spoke of having suffered a seizure, and guessed that the 

baby had been injured when dropped on a nearby heater while defendant was 

incapacitated. Defendant had a history of epilepsy; her defense at trial, supported in part 

by expert testimony, was that she killed her daughter while unconscious due to an 

epileptic seizure. 

The prosecution countered defendant’s claim of unconsciousness with expert 

testimony of its own, including testimony regarding postpartum mental disorders and 

testimony utilizing defendant’s privileged psychological records, after an inadvertent 

disclosure by the trial court allowed the prosecutor to discern these records’ contents 

midtrial and secure their admission on that basis. Although defendant had not been 

diagnosed with any postpartum mental disorder, and Mirabelle’s pediatrician testified 

defendant had screened negative for any such disorder, the prosecution relied on this 

evidence to theorize that defendant was motivated to kill her daughter by hallucinations 

related to undiagnosed postpartum psychosis. 

We conclude the trial court abused its discretion by allowing expert testimony 

regarding postpartum mental disorders without sufficient factual basis and by 

subsequently admitting into evidence defendant’s psychological records not directly 

related to any mental condition she had put at issue. Because we cannot conclude these 
3

errors were harmless when considered together, we reverse the judgment in its entirety. 

Accordingly, we do not reach defendant’s remaining claims.1

FACTS AND PROCEEDINGS

In September 2015, an amended information charged defendant with the first 

degree murder of her infant daughter, Mirabelle (Pen. Code, § 187, subd. (a); count one), 

and assault on a child resulting in death (id., § 273ab; count two). It was further alleged 

defendant personally used a deadly and dangerous weapon, to wit, a microwave, in the 

commission of the murder as charged in count one. (Id., § 12022, subd. (b)(1).) The 

murder was alleged to have occurred on March 17, 2011; defendant first appeared on the 

charges on June 23, 2011. The case proceeded to trial on August 31, 2015, and defendant 

was sentenced on December 18, 2015. This timely appeal followed.2 

Numerous witnesses testified during trial, including defendant’s family members 

and former coworkers, emergency personnel who responded to the scene, law 

enforcement officers who interviewed defendant, and expert witnesses who testified 

about epilepsy, causes of infanticide, postpartum mental disorders, and microwave ovens. 

We categorize and summarize the relevant testimony here, and add any additional details 

as necessary to clarify the nature of procedural disputes and the issues on appeal later in 

our Discussion.

1

 Defendant’s additional claims on appeal include instructional error, improper removal 

of a juror, and charging error. 

2

 The notice of appeal in this case was filed on December 29, 2015. Due to many delays 

in preparation and transmittal of the record and multiple augmented records, as well as 

multiple extensions to the briefing schedule, this case was not fully briefed and assigned 

to this panel until August 2020. This panel ordered supplemental briefing in December 

2020, which was complete in February 2021. The case was argued and submitted in 

May 2021.
4

Defendant’s Background 

Defendant, who was 29 years old at the time of the killing, was born in the United 

States and is of Hmong descent. She lived in Sacramento with her husband, Chi Lo, their 

three young sons, then aged four, seven, and eight, and their daughter Mirabelle, who was 

born on January 22, 2011. Defendant loved her children and took good care of them. 

She was very happy to have a daughter, and by the family’s account she loved and 

cherished Mirabelle. 

Chi’s brother, Va Lo, also lived with the family, and defendant’s mother, Choua 

Kue Yang,3stayed with them periodically. Defendant’s relatives lived nearby and helped 

when needed. 

Defendant worked as an office worker while pregnant with Mirabelle, and after 

Mirabelle’s birth she worked at home preparing checks over the Internet for a few hours a 

day. Chi was a long-haul truck driver; typically he was on the road during the week and 

at home on weekends, but at times he would be gone for up to 14 days at a time. 

Defendant’s Seizures

Defendant began having seizures at age 13 or 14 and by the time of the killing had 

experienced more than 100 seizures in her lifetime. She took medication to control her 

seizures, but she did not believe the medication helped. According to defendant, during 

her seizures she lost consciousness, fell down, and afterward did not remember what 

happened. 

Defendant’s husband Chi had witnessed many of her seizures. In his experience, 

defendant described seizures as beginning with a “flash” or “flashback.” She did not 

know when she was going to have a seizure and had no memory of what happened during 

her seizures. She would fall from a standing or seated position, her hands would curl up, 

3

 Due to the similarities of surnames between defendant and other witnesses, we refer to 

defendant’s family members by their first names.
5

her body and extremities would shake, her eyes would roll into her head, and she would 

drool while making moaning or groaning noises. She bit her tongue 90 percent of the 

time and sometimes lost bladder control. In Chi’s experience, defendant did not walk 

around or do anything during her seizures, which lasted for at least two to five minutes. 

After a seizure she had very low energy, was slow to get up, and seemed dazed and 

confused. Normally she would go somewhere and lie down, and it would take three to 

four hours to regain her senses. 

Defendant’s mother Choua testified some of defendant’s seizures were more 

intense than others.4 When she had a “fall-down” seizure, she would fall to the ground 

and shake, clench both fists and bite her tongue. These could last up to 10 minutes. 

When she came to, she would get up after taking a moment, the amount of time varied. 

Choua would help her to her room, and she was back to normal after sleeping for 30 to 60 

minutes. 

Other witnesses to defendant’s seizures noted that defendant often appeared weak, 

confused, disoriented, or exhausted after a seizure. During that time, she could not 

follow simple commands and she could not have completed any complicated task such as 

working on a computer or driving. She would gradually regain consciousness; her 

recovery time appeared to depend on the severity of the seizure. Three witnesses who 

had observed defendant’s seizures testified defendant sometimes tried to sit up or get up 

soon after suffering a seizure, but those who witnessed the seizure would tell her to stay 

down. One witness testified paramedics arrived “probably four or five minutes” after 

defendant had a seizure on the occasion the witness observed; defendant was able to 

answer their questions but did not understand why the paramedics were there. 

Defendant’s sister-in-law testified defendant’s seizures were not always the same. 

She observed defendant have two seizures that caused her to fall to the ground, clench her 

4

 Choua testified with the assistance of an interpreter. 
6

fists, and shake for two to three minutes. But she also observed one instance in which 

defendant was sitting on her couch when her face went blank, and she looked dazed for 

about a minute. When she regained her senses, she did not remember what they were 

talking about. 

Defendant’s brother, Kao Yang, also testified defendant’s seizures varied widely. 

Sometimes her seizures would cause her to fall down and shake, but sometimes she 

would “just kind of blank out for several minutes.” During those “fast seizure[s],” she 

would stiffen up and shake, but not fall, due to how she was positioned on a bed or 

couch. She would usually get up a minute or so, or up to five or 10 minutes, after the 

seizure was over, but sometimes Kao would tell her to sit down because she was “woozy” 

as she walked, “like, she’s not there.” Other times she would get up and “you can’t really 

tell.” She would not perform any automatic acts. Sometimes she would stay on the 

couch, and sometimes she would walk into a bedroom. It generally took some time 

before defendant was conscious and alert again. In neither instance would defendant 

remember what had happened. 

Defendant was involved in two car crashes due to her seizures, the most recent of 

which occurred only a week before Mirabelle’s death. She recalled having a “flashback” 

while driving, before awakening in the hospital. She described the flashback as: “Um, I 

had like, you know, you see a person right in front of you.” She could not describe the 

person. 

Mirabelle’s Death

March 17, 2011, began normally. Chi was out of town working. Choua arrived 

late the previous evening to help defendant care for Mirabelle, because defendant needed 

time to apply for public benefits that afternoon. Defendant fed Mirabelle at 
7

approximately 5:00 a.m.5 Defendant accessed a check on the Internet for her job at 6:00 

a.m. She and Mirabelle got out of bed at approximately 7:00 to 7:30 a.m., and she 

changed Mirabelle’s diaper because the baby was crying. Defendant brought Mirabelle 

to Choua so she could run an errand. When she returned home, defendant yelled at the 

boys to quit playing video games and get ready for school. 

Choua walked the two older boys to school and worked in the yard upon returning 

home. Defendant prepared food for her youngest son. Choua came inside at 10:00 a.m. 

and changed Mirabelle’s diaper. Defendant’s youngest son played with Mirabelle, who 

was lying on a pillow on the floor, and defendant yelled at him for playing too roughly 

with the baby. She told him to take a shower. 

Defendant began working on her computer. She checked on her youngest son and 

yelled at him for spilling water after his shower. Her son began playing with Mirabelle 

again, and she told him to get dressed for school. Choua put Mirabelle in her bouncy 

chair and cooked breakfast. Defendant continued to work on the computer. Mirabelle 

started to cry, so defendant gave her a bottle, as Mirabelle was a bottle-fed baby. 

Mirabelle continued to cry, so defendant gave her a pacifier, and Mirabelle slept for a few 

minutes. Mirabelle was crying more than normal that morning. Choua testified 

Mirabelle was a little fussy, but it did not concern her. Chi (who spoke with his wife 

every day) testified defendant did not ever say she was stressed, overworked, or 

frustrated; he called her from the road the morning of the killing during a break and spoke 

with her for at least an hour, possibly two, which was not unusual. She did not mention 

that the baby was crying or otherwise acting strangely; they spoke of routine matters, and 

nothing seemed out of the ordinary. They ended their call at some point before noon. 

5

 The precise order and timing of the morning’s events before the actions directly 

leading to Mirabelle’s death differed slightly between accounts. We synthesize the 

various accounts here; any discrepancies do not affect our analysis. 
8

Mirabelle began crying again as defendant and Choua ate. Choua picked her up. 

Va walked defendant’s youngest son to school at approximately 11:55 a.m.; he returned 

at approximately 12:15 p.m. and went to his room. After they finished eating, defendant 

put Mirabelle back in her bouncy chair and made her another bottle. Choua resumed her 

work in the yard. Va, who testified that Mirabelle generally “wasn’t a quiet baby” and 

“had times when she cried,” heard “normal crying” from Mirabelle between 1:00 and 

1:30 p.m. He clarified that she cried for “a minute or two” at that time, which was not 

unusual.

Va left the house at approximately 1:55 p.m. to pick up defendant’s two older sons 

from school. He saw defendant working at the computer as he left; he did not see or hear 

Mirabelle. Computer records showed that defendant worked on multiple checks between 

1:10 p.m. and 1:58:34 p.m. After Va left at approximately 1:55 p.m., defendant was 

alone inside the house with Mirabelle while Choua worked in the yard outside.

Defendant was interviewed multiple times by law enforcement after the baby’s 

death and provided them with information about what happened while she was alone with 

the baby; these interviews were presented as evidence against her at her trial. She told 

the detectives she gave Mirabelle the bottle again and then the pacifier. She noticed 

Mirabelle’s eyes were moving back and forth like she was looking at a fly, but there was 

nothing there. She said the eye movement without apparent cause “kinda scared me a 

little bit,” but she did not think anything would happen because of her faith in God. The 

family were practicing Mormons. Mirabelle rejected her pacifier and was crying, so 

defendant picked her up and held her, and she stopped crying. 

Defendant’s head started pounding, followed by a flash of white light or 

“flashback.” She woke up with Mirabelle lying next to her in the bedroom or in the front 

room. She believed she had a seizure because she wet herself and bit her tongue. She did 

not remember anything that had happened during the seizure. She noticed Mirabelle was 

red in the face, was stiff, and was not breathing. Crying, defendant brought Mirabelle to 
9

Choua, whom she thought was in the kitchen. When asked why she did not look for Va 

instead, defendant confirmed that although she did not remember him leaving that day, 

she remembered him returning to the house after she had found Choua, and she knew Va 

had been away because he “always leaves to go pick up” her older sons. After she awoke 

from the seizure, she “was scared” and “just went to find [her] mom because that’s how 

. . . [she] reacted.” 

At that time Choua was returning to the house from the yard. She testified that 

when she reached the stoop, defendant opened the door holding Mirabelle, who wore 

pajamas and was wrapped in a blanket. Defendant said Mirabelle was sick, and they 

needed to take her to the hospital. 

Choua saw that defendant’s face was flush, her body was sweaty, her pants were 

wet around her thighs, and her tongue was bitten so she could not speak clearly. Choua 

unzipped Mirabelle’s pajamas, and she saw Mirabelle had burn marks on her chest, her 

skin was peeling off her chest, and her body was hot to the touch. Defendant started to 

peel off Mirabelle’s skin near the top of the closure of her pajamas, but Choua slapped 

her hand away. 

When Va returned to the house from picking up the boys from school, the front 

door was open and defendant and Choua were standing five feet inside the house. Choua 

was holding Mirabelle; defendant said something bad happened to the baby, and Choua 

said defendant might have had a seizure. Defendant and Va discussed taking Mirabelle 

to the hospital. Choua told him to call 911, which he did at 2:09 p.m., or approximately 

one to five minutes after he arrived back at the house. 

On the 911 call, which was played for the jury, Va repeated what Choua had told 

him: that defendant had a seizure and dropped the baby and probably fell on her. During 

the call, defendant complied with Va’s instructions from the dispatcher to put Mirabelle 

on the sofa and to perform mouth-to-mouth. Defendant later told detectives she 

performed chest compressions on Mirabelle, and Va initially testified to the same. But 
10

after hearing the recorded 911 call and discussing the statement he gave in 2011, Va 

testified that he performed the chest compressions rather than defendant. Va could not 

recall whether defendant appeared disoriented, but she answered his questions. Nothing 

suggested to Va that defendant was recovering from a seizure, although he thought a 

seizure was the most likely explanation because defendant was a good mother who loved 

her children and would never harm them on purpose. 

First Responders

First responders arrived at 2:16 p.m. Brandon Gaub, a firefighter and paramedic, 

entered the house at 2:17 p.m. and saw defendant kneeling next to Mirabelle on the 

couch. He asked defendant to move out of the way, and she complied. Gaub asked what 

happened to Mirabelle, and someone in the room responded: “I don’t know.” Someone 

said defendant had a seizure and mentioned falling on a space heater. He did not 

formally assess defendant, but nothing he observed from his limited interaction with her 

suggested that she had suffered a seizure. 

Firefighter and emergency medical technician Jennifer Ertl testified defendant said 

she had a seizure while working on the computer, and she dropped Mirabelle onto a 

heater. When pressed, defendant repeated her explanation. Defendant then said she did 

not know what happened. A man told Ertl that defendant had a seizure and fell against 

the heater. Officer Bohrer later interviewed Ertl at the scene, and she said defendant told 

her over and over that she had a seizure and did not know what happened. Defendant 

was calm, alert, standing, talking, and making eye contact. She did not appear to Ertl to 

be confused or disoriented. 

Gaub and Ertl acknowledged they breached protocol for treating a person who 

reported experiencing a seizure by failing to assess defendant’s medical condition, 

prepare a patient care report for her, or offer to transport her to the hospital. 

Police officers arrived at 2:23 p.m., at which time Mirabelle was pronounced dead. 

Officer Shippen interviewed defendant at 2:25 p.m. Defendant told Shippen what she did 
11

that day before her seizure, that she had a history of seizures, that she believed she had a 

seizure at approximately 1:30 p.m., but that she could not remember what happened. She

did not appear disoriented and appeared to understand and appropriately respond to his 

questions. She appeared “fairly calm” and did not appear weak; he testified that it was 

possible her calm demeanor was due to shock. He did not check her clothing for 

incontinence, but he did not smell urine. 

A detective found a pacifier in the microwave oven. 

Investigation and Forensic Testimony

Mirabelle died of thermal injuries resulting from overexposure to microwave 

radiation in a microwave oven. She had second and third degree burns on approximately 

56 percent of her body and suffered severe internal burns. The burn patterns were 

consistent with burns from a microwave oven and suggested that defendant placed 

Mirabelle in the oven lengthwise and on her back. 

A microwave oven expert estimated Mirabelle was in the oven for over two to 

three minutes at a minimum, and although an exact estimate was impossible, his best 

estimate was at least five minutes. It would take two to three minutes in the microwave 

oven to cause the injuries that killed Mirabelle, but the resulting burns would have taken 

longer. 

The expert witness demonstrated how to use defendant’s microwave. To cook for 

five minutes, the user must press the buttons “five-zero-zero and then start” in order. 

Nothing happens if only the “start” button is pressed. Pressing the “five” and then “start” 

buttons causes the oven to cook for five seconds. Pressing the button “add a minute” 

once cooks for one minute, and each additional impression adds another minute to the 

cook time. Pressing the “baked potato” button twice and then pressing the “start” button 

would cause the microwave to cook for five minutes. 
12

Defendant’s Law Enforcement Interviews

Detective Thomas Shrum interviewed defendant later on the date of the killing, the 

recording of which was played for the jury. Defendant stated she had no memory of what 

happened because her seizures cause her to fall down and not remember events. 

Defendant believed she had a seizure because she bit her tongue, wet herself, and could 

not remember what happened. Shrum testified that did not see blood or a fresh wound on 

defendant’s tongue, did not smell urine, and did not notice that defendant’s pants were 

wet. 

Defendant denied she had burned the baby using the stove or the microwave, but 

she also responded that she did not know when Shrum posited that she put Mirabelle in 

the microwave when she had a seizure, adding that when she had a seizures she could not 

remember what had happened. She later agreed with Shrum that she could not have had 

a seizure because she would have fallen down. Defendant told Shrum she had never hurt 

herself or anyone else during a seizure; she had only walked from one place to another

without remembering how. She repeatedly denied that she was stressed, frustrated, or 

angry at Mirabelle for crying. At the close of this interview, where at times defendant 

responded to questions in what seemed a confused manner, detectives told her she should 

go see a doctor. She responded that she would, but she had trouble responding to their 

questions as to where she would go, telling them instead that: “It’s after my seizure, my 

brain just keep [sic] hurting. For a couple hours before it, um, before it gets back to 

normal.” 

Detectives later interviewed defendant and Choua together. When asked why 

defendant killed Mirabelle, mother and daughter mentioned “spirits,” and later clarified 

that “spirits” referenced “possession” by her seizure, not that “spirits made her do it.” 

On March 18, Detectives Brian Dedonder and Shrum interviewed defendant; 

excerpts were played for the jury. Defendant said she picked up Mirabelle and gave her a 

pacifier at approximately 1:00 p.m. She experienced a “flashback” and had a seizure a 
13

few seconds later. She did not remember anything that happened until approximately 

2:00 p.m. She was with the baby in the bedroom when she awoke; she could smell urine. 

When defendant noticed Mirabelle’s face was injured, she ran from the bedroom into the 

front room and through the kitchen. 

On March 22, Detective Hanspeter Merten interviewed defendant; a redacted 

recording was played for the jury. Defendant told Merten she generally ends up on the 

floor after a seizure, and she lies there until she has enough energy to get up. Her family 

has never told her she does anything unusual after a seizure. Defendant said that 

Mirabelle did not typically cry much, but she was crying more than normal that morning. 

She repeatedly denied being frustrated by Mirabelle’s crying, but she agreed with Merten 

that she was “[a] little bit” frustrated because Mirabelle would not fall asleep, and she had 

work to do. 

Defendant told Merten in response to his question as to whether she had ever 

wanted to “physically hurt someone” that she had thought about hurting herself when she 

was 14 or 15 years old after she began having seizures. She never thought about hurting 

anyone else. She had not had those feelings since Mirabelle’s birth. Merten asked 

defendant again if thoughts of killing herself had “gone through your mind here lately 

like in the last few months[;] I mean, after the - you know, the birth of your daughter or 

anything where you just become so frustrated?” Defendant responded, “No.” Defendant 

again denied thoughts of harming herself, despite the fact that her seizures continued to 

occur while she took medicine to treat them. Finally, she acknowledged that thoughts of 

harming herself were “still there” now, but she did not act on them because of her three 

boys.6

6

 It is unclear in this exchange whether defendant was admitting she thought of harming 

herself before--rather than after--killing Mirabelle, as when she discussed her children, 

she specified her three boys, and agreed with Merten that they were young and needed 

their mother. 
14

Additional Statements by Defendant 

On March 18, Chi spoke with defendant at the police station; the conversation was 

recorded. The conversation was in Hmong and was later translated into English. A 

translated transcript of the conversation was used by the prosecutor to refresh Chi’s 

recollection of the conversation during his trial testimony, but it was not admitted into 

evidence. Chi testified that “some of the words we said they translated correctly. Some 

words was [sic] not.” He was not asked for specifics.7 He agreed with the prosecutor 

(who was reading from the translated transcript) that defendant told him at the police 

station, “[T]he spirit called me. So I had a seizure,” and that she fell on the baby, 

possibly on the heater. He said defendant did not remember what happened. She said 

that before the seizure, Mirabelle was moving her eyes back and forth looking at 

something, was crying, and was spitting out her pacifier. She told him a “spirit and 

demon together”--he said the term defendant used is difficult to translate into English--

was looking at her through the window; he first testified defendant saw a Caucasian 

demon or spirit outside staring at her and the baby through the window “at a different 

time” than when she saw Mirabelle’s eyes moving back and forth, but he later agreed 

with the prosecutor that it was at the same time. Defendant also told him the demon or 

7

 The parties disagree as to the relevance of the transcript and whether it is properly 

referenced in this appeal, given that it appears in the appellate record but was not 

admitted into evidence at trial. After disputing its relevance in earlier briefing, the 

Attorney General quotes the transcript at length in opposition to defendant’s motion to 

strike portions of the Attorney General’s brief. Defendant argues we may consider the 

transcript because the prosecutor’s use to refresh Chi’s recollection at trial indicates that 

the prosecutor treated it as accurate. We agree with the Attorney General that we should 

only rely on those portions of the transcript that were read into evidence; however, we 

agree with defendant that where reference to the transcript’s contents is necessary to 

counter an apparent mistake or misrepresentation regarding the state of the evidence, we 

will reference the transcript and note the reference. 
15

spirit was walking around outside of the house and wanted the baby.8 He agreed 

defendant did not say the spirit made her do anything, and that she had no history of 

talking about spirits or demons. 

Chi clarified on cross examination that he did not interpret defendant’s statements 

as attempting to place blame for the killing on a “Caucasian.” Rather, Chi agreed 

defendant’s discussion of spirits or demons was her attempt to piece together an 

explanation for what happened. Some people in Hmong culture believe that “epilepsy is 

the spirit invading the body,” or is a manifestation of spiritual or demonic possession, 

although Chi did not hold that belief and did not think much of it, crudely dismissing it as 

“BS and horseshit.” 

Three days before trial, the prosecutor and his investigator interviewed Chi, and 

excerpts were played for the jury. Chi referenced “demons” when discussing defendant’s 

claim to have had a seizure. He said defendant told him (in Hmong) that there was a 

good demon at the front of the house and a bad demon at the back of the house. 

Defendant said the demon made her kill Mirabelle. Chi spoke to defendant again the next 

day, and she told him again that “a demon made me do this and that.” Chi explained in 

the interview that defendant was “saying she had a seizure and at the point the demon 

took . . . over her body and made her do what she did.” 

Choua testified at trial that defendant’s references to a spirit or demon were related 

to things defendant’s brother Kao had told her. Defendant told Choua she did not want to 

repeat what Kao had told her about the house being built on a cemetery, or about a ghost 

that was watching her and was going to take the kids and take her, for fear of appearing 

8

 According to the translated transcript of Chi’s conversation with defendant, defendant 

clearly stated that her brother Kao (Kob) had told her that a “Caucasian guy” kept 

looking at her from outside before she was pregnant. The transcript also reflects that 

defendant told Chi that she had had a dream about a Caucasian man. Neither attorney 

used the transcript to refresh Chi’s recollection on this point.
16

crazy. Choua testified the term “spirit” is used in the Hmong term for “seizure.” Choua 

does not use that term, and she did not teach defendant that spirits are involved with 

seizures. According to Choua, defendant differentiated between seizures and demons. 

Va testified that defendant sat with family members trying to figure out what had 

happened a day or two after the killing. She said she did not know what happened and 

that she blacked out while sitting at the computer. Defendant said in the week after the 

killing that she saw spirits, but she did not specify the day or whether she saw them 

before the killing, and she did not connect the spirits or demons to the killing in any way. 

Defendant did not mention Mirabelle’s eyes moving. 

Kao spoke to defendant before and after Mirabelle’s death. Defendant told Kao 

she had a seizure and did not know what happened. She did not mention anything about 

spirits or demons, although she did tell him about a dream she had involving “spirits and 

stuff like that.” Defendant did not tell Kao that a spirit or demon made her do anything. 

Defendant did not mention to Kao that Mirabelle’s eyes were moving back and forth on 

the day of her death, and she did not mention any shadows. Kao testified he did not feel 

comfortable discussing spirits because he is not an elder, and that is something elders 

should talk about. 

In an April 2011 interview with an employee from child protective services (CPS), 

defendant again said she was sitting with Mirabelle, “went blank” while working at the 

computer, and woke up in bed with the baby. The employee testified defendant said that 

she had seen a black shadow moving around her house, but did not clarify the date and 

time of the sighting and the employee did not ask any follow up questions. The 

employee did not ask whether the sighting was before or after the baby’s death or any 

other specifics.9 

9

 In her motion to strike portions of the Attorney General’s brief, defendant asserts that 

the briefing impermissibly infers from this testimony that she “described specific visual 

hallucinations to . . . the CPS worker and said she experienced them right before 
17

Expert Testimony Regarding Epilepsy

Seizures are caused by abnormal electrical discharges in the brain and can be 

caused by head trauma, stroke, brain infection, brain tumors, or genetic causes. They can 

be partial or generalized. Partial seizures can be simple or complex. A simple partial 

seizure affects a specific portion of the brain, which may affect a specific body part, such 

as a shaking hand, but does not cause loss of consciousness. A complex partial seizure 

spreads to both sides of the brain and involves a partial loss of consciousness, or loss of 

contact with the environment, where the patient appears to be awake with a blank stare 

and may exhibit automatic movements. A complex partial seizure will not cause a person 

to fall to the ground and shake. A person suffering from a complex partial seizure may 

walk around and perform simple tasks--like smacking their lips or getting undressed--

without being aware of what they are doing, but they cannot perform complex tasks. A 

complex partial seizure can evolve into a secondary generalized convulsion, where there 

is a total loss of consciousness. The patient will collapse, stiffen, and jerk, and may bite 

their tongue, foam at their mouth, and empty their bladder. 

A generalized onset seizure, which does not evolve from a partial seizure, results 

in an immediate loss of consciousness; a generalized tonic-clonic seizure is a type of 

generalized onset seizure and will cause the patient to stiffen and fall (tonic stiffening) 

and jerk (clonic). A patient who loses consciousness during such a seizure does not 

remember what has happened. At trial, experts testifying for the prosecution and defense 

testified the convulsive portion of a generalized tonic-clonic seizure is typically between 

one and two minutes (Treiman) or 45 seconds to two minutes (Garcia). Some patients 

Mirabelle was killed.” The Attorney General responds that it is reasonable to infer from 

the CPS worker’s testimony that defendant saw the shadow before she killed Mirabelle 

because defendant used nearly identical phrasing when speaking to Chi. We disagree. 

Chi did not testify that defendant mentioned a “shadow,” and therefore defendant did not 

use “nearly identical phrasing.” Further, the CPS worker testified that she did not ask 

defendant when she saw the shadow, and defendant did not say. 
18

experience a flash before a seizure. Witnesses often overestimate the duration of a 

seizure. 

A person can have more than one type of seizure as part of their epilepsy, but their 

epilepsy does not change over time, and a person tends to have the same types of seizures 

over time. A person who consistently experiences generalized onset seizures is not going 

to experience partial seizures, which are caused by a different kind of epilepsy. But it is 

possible, although not common, to suffer from both types. The type of epilepsy a person 

has is often determined by relying on people who have observed the person’s seizures. 

After most seizures, the person enters into a recovery period known as the 

“postictal” stage. If the seizure resulted in a loss of contact with the environment or 

complete unconsciousness, the person remains comatose or close to comatose while 

gradually regaining consciousness. The person has more control over their behavior as 

the postictal stage progresses. People can engage in automatic behavior--or wildly 

confused behaviors--while in a postictal state without being conscious of it. Some people 

remain motionless following a seizure, while some are able to get up and start doing 

things. A person recovering in a postictal state may seem dazed and in a state of 

confusion; they may seem oriented as to some things but not have all of their senses back. 

While uncommon, people can get up and walk around, take off their clothes, or even 

drive a car. A person in the early postictal stages would not be able to do a complex task 

such as operate a computer program or a microwave oven requiring input of a specific 

sequence of numbers. 

Dr. David Treiman, a neurologist with a subspecialty in epilepsy, testified as a 

prosecution witness. Based on his review of defendant’s medical history, Dr. Treiman 

concluded defendant’s seizures are always generalized onset, resulting in her falling to 

the ground, exhibiting bilateral extremity movement, and tonic-clonic activity, followed 

by at least a 10 to 20 or maybe a 30 minute postictal period. He had only seen tongue 

biting with tonic-clonic seizures, not complex partial seizures. He would not assume that 
19

her seizures would change from her typical seizure, and he saw nothing to suggest 

defendant experienced any other kind of seizure before this incident.

When initially asked by the district attorney’s office to evaluate the case, Dr. 

Treiman had opined that it was possible that defendant had a seizure and was in an 

unconscious state when she put Mirabelle in the microwave. He advised the district 

attorney’s office: “Should not prosecute for murder. Enough probability exists that 

[defendant] may have had a seizure.” However, Dr. Treiman later “further refined” his 

opinion based on close attention to the “precise timeline.” At trial, he concluded it would 

not be medically supported to claim that defendant, given her medical history, could have 

made a complex entry into her computer at 1:58 p.m., had a seizure, put the baby in the 

microwave in a confused state, punched a series of complex numbers, brought the baby to 

Choua at 2:09 p.m., asked a coherent question about her baby, and been in a state of full 

and complete recovery by 2:10 p.m. to 2:12 p.m. such that no one noticed she was in a 

postictal state. Rather, Dr. Treiman would have expected defendant to still be on the 

ground five to 10 minutes after the seizure, and she would be experiencing confusion for 

20 to 30 minutes after the seizure. 

Dr. Paul Garcia, a neurologist, testified for the defense after originally having been 

hired by the prosecution. Dr. Garcia reviewed defendant’s medical records, and he 

opined that defendant had a history of all three kinds of seizures, but that only the tonicclonic seizures were reported by people who had witnessed her seizures. Dr. Garcia 

testified detectives told him they saw an injury to the side of defendant’s tongue, and he 

noted biting the side of the tongue is most commonly associated with a partial seizure 

that does not become a tonic-clonic seizure. Additionally, Dr. Garcia observed that 

defendant’s medical records included a prior normal electroencephalogram (EEG), and 

the fact that her medication did not suppress her seizures suggested she suffered from 

partial seizures. 
20

Dr. Garcia discussed partial seizures that have spread into enough brain area that a 

person “isn’t completely cognizant of what is going on around them, and yet they have 

enough together so that they could still do some automatic things.” Following such a 

seizure, some patients are able to get up and start doing things in a very confused state. 

The postictal state can vary from person to person and from seizure to seizure for a 

particular person. Dr. Garcia testified the postictal state for a partial seizure can be as 

short as one to three minutes. Some people bounce back quickly following a tonic-clonic 

seizure, but it can take others up to 30 minutes to recover. 

Dr. Garcia opined it was possible defendant put Mirabelle in the microwave either 

during a complex partial seizure or while in a postictal state, and that she seized and 

recovered within the 10 minutes between Va’s departure from the house and Choua’s 

discovery of her and the baby in the doorway. It would not be unusual for a person who 

has a complex partial seizure to engage in “automatic behaviors or disorganized confused 

behaviors,” and Dr. Garcia testified the act of putting an item in the microwave, hitting 

random buttons, and removing the item would not be uncommon. Whether a person 

could operate a microwave depends on the number of buttons that must be pushed; it 

would be easy to start a microwave operated by a single button, but it would not be 

possible to program the oven with many buttons in a complicated combination. 

Dr. Garcia allowed that it would be remarkably rare for a postictal mother to put 

her baby in the microwave and activate it; he agreed that “it would be like two comets 

colliding, just absolutely incredible” because of how rare it would be for those events to 

coincide. He agreed that he had been given information by law enforcement (when 

originally contacted by them for his opinion on her claim to have had a seizure) regarding 

defendant’s “social factors,” such as her lack of a criminal history, employed status, 

family support and the like. But he indicated that his opinion of whether an action was 

possible as a result of a seizure “stems only from watching people have seizures.” 
21

Expert Testimony Regarding Postpartum Mental Disorders

Dr. Angela Vickers testified for the prosecution (over defendant’s objection, as we 

discuss in detail post) about postpartum mental disorders. Dr. Vickers, who specializes in 

child abuse and neglect, was Mirabelle’s pediatrician. She had received special training 

in child abuse, child neglect, and postpartum mental disorders. She kept up to date on the 

medical literature relating to postpartum depression, and she screened mothers in the 

hospital during well baby visits. She was the medical director of the Child Abuse 

Program for Sacramento County, which evaluated suspected cases of child abuse and 

neglect. In that role she trained other pediatricians on how to screen new mothers who 

are at risk for developing postpartum depression as a means of preventing child neglect 

and abuse. 

Dr. Vickers had no special training in psychiatry or psychology and was 

admittedly not qualified to render an opinion as to whether someone suffers from 

postpartum depression or psychosis. She had never testified as an expert regarding 

postpartum mental disorders. 

Dr. Vickers testified that a few days after Mirabelle was born, defendant screened 

negative for postpartum mental disorders. She did not believe defendant exhibited signs 

of postpartum depression during Mirabelle’s examination, although she did not and could 

not opine as to whether defendant had ever suffered from a postpartum mental disorder. 

She testified postpartum depression is an underdiagnosed obstetric complication in the 

United States. Many mothers are reluctant to admit to symptoms of postpartum 

depression or are unable to identify their feelings. There is no way to ensure a mother 

tells her doctor about symptoms. Dr. Vickers cited one study in which 80 percent of 

mothers failed to report their postpartum symptoms, and another in which only 32 percent 

out of 78 patients with postpartum depression believed they suffered from the disorder. 

Dr. Vickers testified that there are three types of postpartum mental disorders: 

postpartum blues, postpartum depression, and postpartum psychosis. After delivery, 40 
22

to 60 percent--up to 80 percent in some studies--of mothers suffer from postpartum blues, 

or a temporary feeling of sadness that lasts for a few weeks and goes away after four to 

five weeks. The cause of this condition is unknown, but it could be related to a 

combination of sleep deprivation and hormonal changes. 

Depression-like symptoms persisting for a few weeks are consistent with 

postpartum depression. Postpartum depression meets specific diagnostic criteria and 

presents in the first year of a child’s life. Symptoms of postpartum depression include 

difficulty sleeping, changes in appetite, anger, agitation, inability to concentrate, periods 

of crying with no explanation, and disruptions of daily life. The causes of postpartum 

depression are unknown, but they may relate to hormonal changes or genetic 

predisposition to depression. 

Several stressors have been identified as risk factors for developing postpartum 

depression, including a history of depression, current symptoms of depression, the youth 

of the mother, stress, immigration status, unplanned or unwanted pregnancy, death of a 

parent, marital discord, domestic violence, unemployment, lack of social or financial 

support, single motherhood, complications of pregnancy, sick leave during pregnancy, a 

colicky baby (defined as a baby who cries unconsolably and persistently for hours, rather 

than a baby who is fussy or who cries intermittently), not breastfeeding, and the mother’s 

introverted personality. More than one risk factor is usually required for postpartum 

depression, but the exact number of risk factors required to develop postpartum 

depression is unknown. 

Dr. Vickers agreed on cross-examination that--as was defendant’s situation--if a 

mother were not a teenager, had family support, was already a mother of three, planned 

her pregnancy, was not impoverished, had no recent deaths in her family, had no reports 

from family that she appeared depressed or overwhelmed, and had no history of marital 

discord, domestic violence, depression or mental illness, it would be less likely she 

suffered from a postpartum mental disorder. She recognized that defendant’s status as an 
23

immigrant was “probably not” a stressor because she is a United States citizen, born here, 

and speaks English, but she stated there are many factors related to immigration that can 

cause stress in a family. Dr. Vickers also agreed that a mother’s choice to not breastfeed 

is personal, and the seizure medication defendant took could factor into that decision. 

She agreed the risk of an inconsolable baby is minimized where the mother has support in 

the home, as defendant did in this case. 

Postpartum depression increases the risk of injury to the baby, and screening for 

postpartum depression is intended to reduce the risk of child abuse or neglect. Mothers 

who are not depressed may abuse their babies, but a mother with postpartum depression 

may be less likely to tolerate the stress caused by a baby crying inconsolably. 

Postpartum psychosis is very rare, very serious, and results from the progression 

of postpartum depression; it does not appear one day and disappear the next. Symptoms 

of postpartum psychosis include auditory hallucinations, visual hallucinations, 

disorientation, paranoia, thoughts of harming the child, not knowing who or where she is, 

rapid mood changes, irritability, psychomotor agitation, severe insomnia, and profound 

symptoms of mental illness. Postpartum psychosis occurs within the first year of the 

child’s life, but commonly presents within the first two weeks after birth. Dr. Vickers 

had no information to suggest that defendant had any of the risk factors for psychosis. 

An infant faces significant risk of injury or death if her mother suffers from 

postpartum psychosis because a psychotic mother may intentionally try to harm the child. 

A mother with postpartum mental disorders is not necessarily going to kill her child; it is 

rare for a mother with postpartum depression to kill her child and more common for a 

mother with postpartum psychosis to do so. Although mothers without any postpartum 

disorders may also kill their children, 41 percent of women who suffered from mental 

illness thought of harming their child, compared to only seven percent of mothers with no 

mental illness.
24

Dr. Vickers agreed that a hypothetical person believing there were a Caucasian 

spirit or demon looking into the window would be experiencing a hallucination or a 

delusion, but she testified a hypothetical eight-week-old baby could track something 

around the room with her eyes. She agreed, however, that the perception of a baby 

tracking her eyes around the room could be a maternal delusion resulting from 

postpartum psychosis. 

Defense Neurology Expert Evidence 

Dr. Phillip Resnick, a physician specializing in psychiatry, testified for the 

defense.10 Dr. Resnick testified his research identified five reasons why a mother would 

kill her child: (1) an unwanted child; (2) revenge against the spouse; (3) overzealous 

discipline; (4) altruism (saving a child from a fate worse than death); and (5) acute 

psychotic or postictal state without comprehensible motive. 

Dr. Resnick interviewed defendant and her family members, and he reviewed the 

police reports and defendant’s medical records. He testified there was no evidence that 

defendant killed Mirabelle because she was an unwanted child, to take revenge against 

Chi, due to overzealous discipline, or as misplaced altruism. 

Dr. Resnick testified that defendant’s medical records and interviews with her 

family did not suggest she had experienced symptoms of depression before the killing. 

She denied auditory and visual hallucinations to the police and in his interview with her. 

He observed she had never experienced any delusional beliefs, experienced any 

hallucinations, or had any history of mental illness. Dr. Resnick acknowledged defendant 

experienced suicidal ideation as a teenager when she first began suffering from seizures, 

10

 As we discuss post, Dr. Resnick was called by the defense out of order (during the 

prosecution’s case) due to a scheduling issue, and was added as a defense witness only 

after the trial court ruled over defendant’s objection that Dr. Vickers would be permitted 

to testify for the prosecution as an expert witness on postpartum mental disorders as 

motive evidence. 
25

but he did not consider that significant. Accordingly, he opined there was no evidence 

defendant suffered from postpartum depression, postpartum psychosis--the symptoms of 

which are extreme and would have been obvious to anyone around her--or any other 

mental illness before Mirabelle’s death. He further observed any symptoms of 

depression defendant exhibited after Mirabelle’s death were not evidence of depression at 

the time of death; depression is expected after losing a child, being accused of killing the 

child, and being incarcerated. 

Dr. Resnick was not an expert in the area of epilepsy, but he had training in 

neurology and the effect epilepsy can have on a person. He had studied epilepsy in 

connection with cases of child killings. Dr. Resnick could not “rule in” a seizure as the 

cause of Mirabelle’s death, but he could not rule it out. Accordingly, he opined 

defendant most likely killed Mirabelle while in a postictal state following a seizure. He 

testified that people are able to engage in over-learned behavior, like using a microwave, 

while in this state. He characterized the inconsistent statements given by defendant 

regarding the cause of Mirabelle’s injuries as probable speculation, “trying to make sense 

out of a confused period.” 

The trial court earlier ruled defendant’s psychological records were privileged and 

declined to disclose them to the prosecution. But the prosecutor announced that same 

morning, immediately prior to Dr. Resnick’s testimony, that he received and reviewed a 

portion of those records the previous day. During the morning recess, taken prior to Dr. 

Resnick’s cross-examination, the prosecutor sought permission from the court to “go into 

psych records that I do have.” The court gave its permission, and, at the noon recess 

(after which the cross-examination of Dr. Resnick continued), it also ordered disclosure 

to the prosecutor of any remaining records referencing “psychiatric issues or 

psychological issues” not already inadvertently disclosed. We discuss this series of 

events in greater detail in the Discussion section of our opinion, post, as it is the subject 

of one of the claims of error on which we focus.
26

On cross-examination Dr. Resnick testified that he had not received any of 

defendant’s psychological records in advance of trial, although he had asked for them, 

and he acknowledged he would want to know if defendant had suffered from auditory 

hallucinations before testifying that defendant experienced no symptoms of psychosis. 

He acknowledged that during the recess that had just concluded, he received several 

pages of records “from the jail after the event.” The prosecutor asked him about a 

notation that defendant reported “auditory perceptual experiences,” and he denied the 

prosecutor’s assertion that this was a report of hallucinations; rather, the term could 

signal how “during an aura of an epileptic seizure, people can see and hear things.” He 

noted there was no diagnosis of psychosis, and defendant’s classification per the records 

as “adjustment disorder with depressive mood” was “what happens when people are put 

in jail after losing a child. They get depressed because it is a tough adjustment.” The 

records also noted defendant had described “a return of auditory hallucinations,” and had 

stated after having a seizure in custody that she “hoped she would never wake up.” 

After the prosecutor received the remainder of the psychiatric records over the 

noon recess, he questioned Dr. Resnick at length about psychiatric disorders and statistics 

related to the correlation between psychiatric disorders and infanticide. Dr. Resnick 

testified that the mere presence of hallucinations does not render the sufferer psychotic, 

indicating that 10 to 15 percent of the population experiences hallucinations. He was 

asked about studies of depressed women as it related to thoughts of harming their 

children and about colic; he testified 70 percent of mothers with colicky infants 

experience explicit aggressive thoughts toward their infants, and 26 percent of them had 

infanticidal thoughts during the colicky episode. However, he added that there was no 

evidence that Mirabelle was a colicky baby, which is defined as a baby who cries for 

more than three hours after being changed, comforted, and fed, and which continues for 

weeks or months. 
27

When asked about undiagnosed postpartum psychosis, Dr. Resnick emphasized 

that postpartum psychosis “is really quite dramatic” and is “not something that goes 

unnoticed”; those who suffer from that affliction “are very very sick.” He added that

transcripts of defendant interviewing with detectives show “no evidence of postpartum 

psychosis,” and confirmed that seeing her baby’s eyes moving back and forth and 

possibly seeing a man looking through the window would not be examples of paranoia, 

which is a “delusional belief that one is being conspired against and someone wishes 

them harm.” 

After verifying that Dr. Resnick had not seen the newly disclosed psychological 

records before the noon recess, the prosecutor questioned him with jail records indicating 

that, in August 2011, defendant reported experiencing auditory hallucinations after 

Mirabelle’s birth. The prosecutor read into record Exhibit 134, which indicated 

defendant said: “There were voices that were talking in her head, and she would try and 

cope with them by trying to push them out and not pay attention to them, and which she 

said was successful, at times. [¶] Other times she reports it was like someone was 

coming up behind her. She said that she had told her husband this and a priest that had 

come to the house after the death of their daughter. She said they told her it was only in 

her head and not to pay attention to it. [¶] During this period after the daughter’s birth, 

she said she was not eating as much, had an increase in [auditory hallucinations], an 

increase in seizures, but did not feel very depressed. [¶] She said after her daughter’s 

death, the [auditory hallucinations] and seizures decreased, and she felt more depressed. 

[¶] She said that she did not tell others about her experience with [auditory 

hallucinations] because of fears of being told she was ‘crazy.’ ” The same note stated:

“[Defendant] describes psychotic-like [symptoms] that occurred following birth of her 

daughter. Reports these have gone away at this time. Still some slight depression, but 

reports improvement in this area also.”
28

A psychiatric service note from September 2011 stated that defendant “reported at 

that time she had a report of experiencing auditory hallucinations prior to coming into 

custody.” The note continued, “she does report one episode of her experiencing the 

auditory hallucinations she had prior to coming into custody, saying the voice had told 

her, I’m back again, but no other interaction.” A note from December 2011 read in part, 

“[s]he told jail psychiatric services that about one week after she had given birth to 

Mirabelle, she began to hear some auditory hallucinations.” 

Dr. Resnick testified that this new information was important. He again clarified 

that auditory hallucinations may or may not be psychotic; nonpsychotic hallucinations are 

not uncommon. Five or more symptoms of postpartum depression must be present 

during the same two-week period to support a diagnosis, and he still did not believe 

defendant was suffering from postpartum depression. He observed there was no evidence 

defendant could not function in her day to day life, which is true of a person suffering 

from psychosis. Finally, he noted: “[T]he medical observers, the home observers, her 

own report, no one points to depression in this case. [¶] For [the prosecutor] to raise it, 

he’s raising it, but there’s no evidence of it.” 

Prosecutor’s Closing Argument

In his closing argument, the prosecutor highlighted evidence he contended 

supported the finding that defendant suffered from postpartum psychosis. He argued that 

the jury should ignore the fact that defendant was not diagnosed with a postpartum 

mental disorder because postpartum mental disorders are underdiagnosed. Instead, he 

asserted that defendant experienced hallucinations, was overly stressed, was frustrated 

with Mirabelle’s crying to the point the frustration turned to anger, had “depression 

issues” and “suicidal issues,” and was introverted. 

He pointed to the testimony about a Caucasian spirit or demon looking through the 

window, Mirabelle’s rolling eyes, and defendant’s priest coming to talk to her. For 

example, the prosecutor argued: “Is she concerned that there’s [sic] demons possessing, 
29

something in the eyes of Mirabelle? Or is she concerned about herself or thought about 

killing herself because she had this seizure disorder, she’s had those thoughts run through 

her mind and now her little baby girl is here?” He added: “Is she concerned about the 

demons and the cemetery that the house was built on? Is she psychotic? Is she just 

somebody hearing voices that told her to kill. Does she have postpartum issues?” 

In another instance, the prosecutor argued: “Why are Mirabelle’s eyes moving? 

What is she watching? The Caucasian guy outside the window or the spirit?” He added: 

“These eyes moving have nothing to do with something innocent like a baby just tracking 

a fly, because otherwise she would not keep connecting up with this: [¶] I’m scared. We 

believe in God. I go to a Mormon church.” 

The prosecutor pointed to defendant’s statements to Chi and Choua: “Her 

statement to her husband on [March] 18th: [¶] A Caucasian spirit/demon is outside the 

window watching. A demon possessed her and that’s why she did it. [¶] The statement 

to her mother: [¶] She said, We live on a cemetery. We can’t tell them the truth. They 

will think we are crazy. [¶] There is evidence here.” He contended that defendant told 

Chi “the demons made her do it. The spirits made her do it, and she’s not referring to 

seizures as spirits. She’s saying demons made her do it. That’s what she tells her 

husband.” He argued: “it is clear that she was having issues as it related to hearing those 

voices, issues that are related to demons. [¶] She got up from her computer, and she 

goes in, and she gets the demons out of her daughter.” He speculated that a voice in 

defendant’s head told her to “[g]o put your child in the microwave.” 

In rebuttal, the prosecutor asserted: “The defense doesn’t want you to embrace 

that she had auditory hallucinations. [¶] It was just a little auditory hallucination. Who 

cares.” He stated, “[u]nlike Dr. Resnick, who is just gonna say, I don’t care about the 

psychiatric records where she talks about having hallucinations, you should consider that 

evidence.” Later he added: “The defense wants to not embrace it. Dr. Resnick wants to 

say it doesn’t have anything to do with this case, but you know better, because . . . 
30

something must be going on there. [¶] And it is. It relates to the spirits, to the demons, 

to the fact that she’s hearing these voices.” 

The prosecutor relied on the statistic that 41 percent of women with mental illness 

had thoughts of harming their child compared with seven percent of mothers in a control 

group, and in rebuttal he referred to studies showing that mothers with “psychiatric 

issues” are especially prone to have thoughts of “killing their child.” He then read entries 

from defendant’s psychiatric file while commenting that the entries exhibited defendant’s 

psychiatric issues and constituted factors related to postpartum depression. He added that 

a crying baby can increase a mother’s frustration. 

Jury Verdict and Sentence

The jury found defendant guilty of first degree murder (Pen. Code, § 187; count 

one) and assault on a child, resulting in death (id., § 273ab; count two). The jury found 

true the allegation that defendant personally used a deadly and dangerous weapon--a 

microwave oven--within the meaning of Penal Code section 12022, subdivision (b)(1), in 

connection with the murder charge. 

The trial court denied defendant’s motion for new trial and sentenced her to 25 

years to life in prison on count one, plus one-year for the weapon-use enhancement. The 

court imposed a sentence of 25 years to life on count two and stayed sentence pursuant to 

Penal Code section 654. Defendant timely appealed. 

DISCUSSION

I

Expert Testimony of Postpartum Mental Disorders

Defendant contends the trial court abused its discretion by permitting the 

prosecution to introduce the testimony of Dr. Vickers regarding postpartum mental 

disorders. As relevant to our analysis, defendant argues the testimony was not supported 

by any evidence specific to defendant and her condition, and thus was irrelevant as 

devoid of any factual bases. She adds that even if relevant, Dr. Vickers’ testimony was 
31

more prejudicial than probative due to its low probative value given the lack of diagnosis 

and its highly prejudicial nature as impermissible character and propensity evidence. 

As we will explain, we agree the trial court abused its discretion by admitting the 

challenged testimony for these reasons, to which timely objections were lodged at trial, 

although we disagree with defendant’s assertion that Dr. Vickers was not qualified to 

testify as she did. Because we find abuse of discretion on the grounds we have stated, we 

do not address defendant’s additional claims of error regarding this testimony, which 

include that the testimony was improper evidence of diminished capacity; that evidence 

of postpartum depression is not proper “motive” evidence; that the risk factor evidence 

constituted a “criminal profile”; and that the testimony contained improper statistical 

evidence.11

A. Procedural Background

In a trial brief filed on August 28, 2015, the People indicated their intent to call 

Dr. Vickers regarding “the nature of post-partum depression and the pediatric concerns 

relating to it as it [sic] child abuse and neglect.” The defense subsequently moved to 

exclude that testimony and any reference to postpartum depression, arguing it was 

without factual basis and no reports had been received. In their response thereto, the 

People argued the testimony was relevant to the issue of motive and that because Drs. 

Garcia and Treiman could not “rule out” a postpartum mental disorder as motivation for 

defendant’s conduct in killing her baby, Dr. Vickers’ testimony was “necessary.” 

The prosecutor proffered the symptoms of postpartum psychosis from a website as 

follows: confusion and disorientation, obsessive thoughts about the baby, hallucinations 

and delusions, sleep disturbances, paranoia, and attempts to harm oneself or the baby. 

11

 Because we do not address these additional grounds, we need not and do not address 

the Attorney General’s claim of forfeiture and defendant’s related claim of ineffective 

assistance of counsel. 
32

Applying those symptoms to the facts of this case, the prosecutor first proffered that 

defendant was confused about what had happened to Mirabelle. He recognized defendant 

blamed her confusion on a seizure, but contended this evidence was also consistent with 

disorientation related to postpartum psychosis. He next contended defendant “clearly 

suffered from obsessive thoughts about Mirabelle” because she had stated that Mirabelle 

was crying and could not be soothed before the killing. He argued that defendant was 

“clearly paranoid” the day of the killing, as she described a “spirit [that] was looking in 

on her and took her baby.” 

The prosecutor posited that defendant had experienced three hallucinations and 

delusions, relying on Chi’s recollection of his conversation with defendant after the 

killing. He argued defendant’s seeming agreement with the detective in an interview that 

she had considered self-harm in the recent past constituted evidence of attempts to harm 

herself, and her killing of Mirabelle was evidence of attempts to harm her children, thus 

there was evidence of attempted self-harm and attempted harm to her children that 

evidenced postpartum mental disorders. Finally, he contended that, “from a common 

sense point of view, most jurors are aware of post partum depression and a few 

commented on it in the questionnaire. The jurors will naturally want and appropriately 

need to know if there are factors that support post partum depression or psychosis.” 

At the first hearing on the motion, held on the first day of trial, August 31, 2015, 

the prosecutor argued the testimony would provide a “logical explanation” for 

defendant’s act; the defense objected on relevance and prejudice grounds, and also to late 

discovery. The prosecutor clarified he disclosed the plan to call Dr. Vickers to defense 

the week before the hearing; the trial court reserved ruling. At a later hearing, defense 

counsel reiterated that the planned testimony was “a new thing” that she had only learned 

about two weeks before, and indicated she was not prepared to counter the testimony for 

that reason. She argued again there was no evidence defendant was suffering from 

postpartum depression, the planned testimony would be without foundation, and it would 
33

encourage the jury to speculate. The prosecutor argued that postpartum depression was 

“an explanation” for the killing, and the issue had come up in juror questionnaires (which 

had already been disseminated and collected). He argued that because “everyone says 

this was unexpected,” testimony about postpartum mental disorders would provide a 

“logical explanation.” He posited, “the fact that there’s no reason for her to do this 

makes the evidence more powerful.” Defense counsel again responded that there was no 

basis in fact to admit the evidence and that it would only encourage speculation; she 

added that any probative value of the evidence would be substantially outweighed by the 

risk the jury would assume without a factual basis that defendant suffered from a 

postpartum mental disorder and would infer that she had a motive to kill. Defense 

counsel argued that this theory “has never been on the screen” and that the prosecutor 

“only recently spoke with Dr. Vickers,” adding that “there’s not been any ongoing belief 

that postpartum depression played a role at all.” Instead, “the issue has always been 

whether or not [the killing] was the product of the seizure disorder.” The defense also 

asserted the evidence would amount to inadmissible propensity evidence inviting the jury 

to speculate that there must be some evidence of a postpartum mental disorder given 

certain character traits and tendencies shared by defendant and those afflicted with 

postpartum disorders. 

The prosecutor noted that (defense witness) Dr. Garcia “seems to also rely upon 

other background or social factors” and that the doctor had “candidly told [the lawyers] 

that if [defendant] doesn’t have a CPS history and she doesn’t have a criminal history and 

she’s not a bad person” a seizure was more likely. Both lawyers noted that Drs. Garcia 

and Treiman had indicated when recently asked by the prosecutor that postpartum mental 

disorders were outside their area of expertise; defense counsel again stressed there was 

simply no evidence defendant suffered from such disorder. The trial court again deferred 

ruling. 
34

The next day, the trial court ruled without hearing further argument that “the 

People are entitled to present reasonable evidence of possible motive” in the form of Dr. 

Vickers’ testimony regarding postpartum mental disorders, as “[m]otive is a legitimate 

consideration.” The court ultimately granted defense counsel a three-week continuance 

to prepare for this new evidence. 

Dr. Vickers later testified for the prosecution as we have outlined in detail ante.

B. Dr. Vickers as an Expert Witness

Defendant claims that Dr. Vickers lacked sufficient expertise to testify on the 

subject of postpartum mental disorders. An expert witness may testify “[r]elated to a 

subject that is sufficiently beyond common experience that the opinion of an expert 

would assist the trier of fact.” (Evid. Code, § 801, subd. (a).)12 “ ‘The trial court’s 

determination of whether a witness qualifies as an expert is a matter of discretion and will 

not be disturbed absent a showing of manifest abuse. [Citation.] “ ‘Where a witness has 

disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the 

question of the degree of his knowledge goes more to the weight of the evidence than its 

admissibility.’ ” ’ ” (People v. Eubanks (2011) 53 Cal.4th 110, 140.) 

We agree with the Attorney General that Dr. Vickers had sufficient training and 

experience to testify about the definitions of and differences between postpartum blues, 

depression, and psychosis, which are topics beyond the common experience of the jury. 

(See People v. Davis (2009) 46 Cal.4th 539, 605 [approving of expert testimony that the 

defendant’s prior crimes, statements, and behavior were consistent with paraphilia, a 

sexual disorder]; People v. Phillips (1981) 122 Cal.App.3d 69, 82-84 [approving of 

expert testimony that the defendant’s conduct was consistent with Munchausen syndrome 

by proxy].) 

12

 Further undesignated statutory references are to the Evidence Code. 
35

However, in both Davis and Phillips, the expert testimony related to the 

defendant’s conduct and explained that the crime could have been motivated by the 

disorder or the syndrome that was the subject of the expert testimony. (See People v. 

Davis, supra, 46 Cal.4th at p. 605; People v. Phillips, supra, 122 Cal.App.3d at pp. 82-

83.) As we will explain, and unlike the expert witnesses in Davis and Phillips, Dr. 

Vickers set forth no such coherent and relevant explanation for defendant’s conduct. 

Indeed, she had no opinion about defendant’s motivation for the murder; in her relevant 

contact with defendant, defendant showed no signs of postpartum mental disorders. 

Instead, Dr. Vickers was called upon to testify to a laundry list of background and 

character traits that were common to postpartum mental disorders. As we discuss post, 

although we agree that Dr. Vickers was qualified to testify as she did, her testimony itself 

was problematic.

C. Relevance and Factual Basis

Defendant claims that the evidence of postpartum mental disorders was irrelevant 

because the People failed to present sufficient evidence that defendant was either 

diagnosed with or exhibited any symptoms of a postpartum mental disorder. The 

Attorney General responds that the trial court properly admitted Dr. Vickers’ testimony 

because there was evidence that defendant had symptoms of postpartum psychosis, which 

was relevant to prove her intent and motive. We agree that the testimony lacked 

sufficient factual basis, as we now explain. 

Only relevant evidence is admissible at trial. (§ 350.) Under section 210, relevant 

evidence is evidence “having any tendency in reason to prove or disprove any disputed 

fact that is of consequence to the determination of the action.” Evidence is relevant if it 

tends “ ‘ “logically, naturally, and by reasonable inference” to establish material facts 

such as identity, intent, or motive.’ ” (People v. Williams (2008) 43 Cal.4th 584, 633.) 

“The trial court has considerable discretion in determining the relevance of evidence.” 

(Id. at p. 634.) Even if evidence is relevant, section 352 provides that a “court in its 
36

discretion may exclude evidence if its probative value is substantially outweighed by the 

probability that its admission will . . . (b) create substantial danger of undue prejudice, of 

confusing the issues, or of misleading the jury.” “The term ‘prejudice,’ within the 

meaning of . . . section 352, is not simply damage to the defense that naturally flows from 

relevant and highly probative evidence, but is instead an emotional reaction that inflames 

the jurors’ emotions, motivating them to have a bias against, or to prejudge, an individual 

based on evidence that has only slight probative value on the issues. [Citations.] Under 

that statute, evidence is substantially more prejudicial than probative if it poses an 

intolerable risk to the fairness of the proceedings or the reliability of the outcome and 

renders the defendant’s trial fundamentally unfair.” (People v. Chavez (2018) 22 

Cal.App.5th 663, 702.)

It is often said that we review for abuse of discretion a trial court’s ruling on the 

admissibility of evidence, including expert testimony. (See, e.g., People v. Brown (2016) 

245 Cal.App.4th 140, 156.) However, we have explained before that “[t]he discretion 

conferred upon the court ‘is a discretion, governed by legal rules, to do justice according 

to law or to the analogies of the law, as near as may be.’ [Citation.] That is to say, the 

range of judicial discretion is determined by analogy to the rules contained in the general 

law and in the specific body or system of law in which the discretionary authority is 

granted.” (County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778.) Accordingly, 

we consider “(1) whether the challenged evidence satisfied the ‘relevancy’ requirement 

set forth in . . . section 210, and (2) if the evidence was relevant, whether the trial court 

abused its discretion under . . . section 352 in finding that the probative value of the 

[evidence] was not substantially outweighed by the probability that its admission would 

create a substantial danger of undue prejudice.” (People v. Scheid (1997) 16 Cal.4th 1, 

13.)
37

As we have described, here the prosecution sought to pursue through Dr. Vickers

the theory that defendant was motivated to kill by her undiagnosed postpartum psychosis. 

That motive theory was the sole proffered relevance of Dr. Vickers’ testimony, although 

she had actually screened defendant as negative for postpartum mental disorders after 

Mirabelle’s birth. An expert’s testimony must have some factual connection to the case 

in order to be relevant and helpful to the jury (§§ 350, 801, subd. (a)); accordingly, we 

first analyze whether there is factual support for Dr. Vickers’ testimony. 

The first of several factual bases proffered by the prosecutor was confusion about 

what had happened to Mirabelle, which the prosecutor claimed was the equivalent of

disorientation related to postpartum psychosis. But there was no evidence that defendant 

presented as confused or disoriented immediately after the killing. As we have described 

in detail above, firefighters and law enforcement responding to the scene stated that 

defendant told them she had suffered a seizure, and none of these first responders found 

defendant to be confused or disoriented. They described her as alert and oriented. She 

consistently told them that she did not know what happened to the baby because she had 

a seizure. That is, she knew what happened--she had a seizure--but she did not know 

how the baby was hurt, because of the seizure. The fact that this evidence was subject to 

challenge in various ways does not in and of itself provide evidence that defendant was 

disoriented. The prosecutor pointed to no evidence suggesting defendant was confused 

or disoriented in the aftermath of the killing such that psychosis was suggested, and no 

such evidence was introduced at trial. 

The second basis was “obsessive thoughts about Mirabelle” based on the assertion 

that defendant stated repeatedly that Mirabelle was crying more than usual on the day of 

the killing and could not be soothed. Although there is limited evidence of Mirabelle 

crying excessively (or “fussing”) on the day she died, there was no evidence that

defendant was excessively stressed, frustrated, or angry at Mirabelle for crying, and she 

consistently denied any such feelings. She was asked multiple times in multiple 
38

interviews about the baby’s excessive crying; the fact that she answered those questions, 

and in the process was required to reference the crying at length, does not evidence the 

“obsessive thoughts” proffered by the prosecutor, and there was no testimony opining 

that it did. Further, although testimony about colicky babies and their negative effect on 

their parents was elicited, there was no evidence that Mirabelle had colic as defined by 

the experts at trial; indeed, all relevant testimony indicated that she did not have colic.

The third basis was evidence of three hallucinations and delusions, relying on 

what defendant allegedly told Chi: (1) she believed a Caucasian man was peering in the 

window the day she killed Mirabelle; (2) she said “the man which she also describes as a 

spirit stated at some point ‘I took your daughter; I’m happy I took your daughter, are you 

disappointed? Are you? Because you are not getting your daughter back’ ”;13 and 

(3) she said Mirabelle’s eyes were moving back and forth in an odd manner. The 

prosecutor added that Chi told investigators defendant had never spoken of a spirit or a 

Caucasian man looking in her home or taking her child prior to the killing. 

As we have described in detail above, there was some limited evidence of 

hallucinations and delusions experienced by defendant around the time of the killing, 

advanced by Chi and others. However, much of this evidence was qualified and 

culturally associated, which lowered its probative value. 

Portions of Chi’s conversation with the prosecutor and his investigator, which took 

place three days before the 2015 trial, were introduced into evidence. Chi’s conversation 

with the prosecutor and investigator involved Chi’s recollection of private conversations 

between he and defendant in the days after the 2011 killing. The jury heard that Chi told 

the prosecutor that when he spoke with defendant at the police station, she said “there’s 

13

 This is direct quote from defendant’s description to Chi of her dream, contained in the 

translated transcript that we discussed ante. She twice explains the conversation as part 

of a dream in the translated transcript. 
39

[a] demon outside watching her,” there was a good demon at the front of the house and a 

bad demon at the back of the house, and the demon made her kill Mirabelle.14 Chi said 

he spoke with defendant the following day, and she again said the demon “made me do 

this and that.” He explained, however, that she meant “[t]hat like she have a seizure . . . a 

demon took over her body and she did - that she - made - made she do what she did.” He 

clarified that she did not “remember the demon . . . making her do what she did.”

At trial, Chi testified that defendant told him the “spirit and demon together” was 

looking at her through the window, was walking around outside of the house, and wanted 

the baby, but she did not tell him that the spirit made her do anything. He testified that 

she told him that before her seizure, Mirabelle was moving her eyes back and forth 

looking at something, was crying, and was spitting out her pacifier. He first asserted that 

she saw the apparition at a different time than when Mirabelle’s eyes were moving, but 

then agreed it was around the same time. Chi testified defendant had no history of 

talking about spirits or demons. 

Chi recognized that some in Hmong culture believed that epilepsy is a 

manifestation of spiritual or demonic possession, although he does not hold those beliefs. 

He clarified that defendant’s discussion of spirits or demons was her attempt to piece 

together an explanation for what happened. He agreed with the prosecutor that defendant 

told him at the police station, “[T]he spirit called me. So I had a seizure.” 

Choua testified that defendant’s discussions about spirits stemmed from what 

defendant’s brother, Kao, told her.15 Defendant told Choua, “[i]f I tell them, they’ll think 

14

 As we discussed ante, the translated transcript does not support Chi’s characterization 

of defendant’s statements. 

15

 This testimony is consistent with the translated transcript of defendant’s March 18 

conversation with Chi, in which defendant stated: “I thought that Kob (or could be 

[defendant’s brother] Kao) said the Caucasian guy outside keeps looking at me. When I 

wasn’t pregnant yet, he kept on looking at me.” She continued, “Kob [or Kao] said he 

has been watching me walking around from the bedroom and back. That spirit is very 
40

we’re crazy because my brother -- that house, we don’t know what it’s built on. We 

don’t know if it’s built on a cemetery or something?” Defendant said that her brother 

said a ghost was watching her and the ghost was going to take the kids with her.16 

Kao testified that defendant told him about a dream she had involving “spirits and 

stuff like that.”17 Defendant did not tell Kao that a spirit or demon made her do anything. 

After the incident, defendant told Va that she had seen spirits, but she did not specify 

whether she saw spirits before or after the killing, and she did not say that the spirits 

caused her to do anything; rather, she maintained she did not know what happened. 

The prosecution also presented evidence of an interview defendant had with a CPS 

worker more than a month after the killing. Defendant again said she did not know what 

happened because she blacked out. Defendant said she saw a black shadow moving 

around the house, but she did not specify whether she saw the shadow before or after the 

seizure, or before or after she killed Mirabelle. The Attorney General contends it is 

reasonable to infer that defendant saw the shadow before she killed Mirabelle because 

she used “nearly identical phrasing” to describe the Caucasian spirit or demon to Chi. 

But both Chi and the CPS worker were testifying as to their recollection of defendant’s 

bad. Wherever I go, it goes and watches me from the window, said Kob. He/she said 

with my daughter, why did I have so many seizures with her? With my boys, I didn’t 

have that many seizures.”

16

 The Attorney General suggests that defendant was merely hearing a voice that she 

believed was her brother’s, which told her a ghost was watching her and was going to 

take the kids and take her. There is no evidence of this.

17

 This testimony is consistent with the translated transcript of defendant’s conversion 

with Chi, in which she discussed having a dream the morning of March 18 about a 

Caucasian man who “came and said to me ‘I took your daughter; I’m happy that I took 

your daughter. Are you disappointed? Are you? Because you’re not getting your 

daughter back.’ ”
41

statements, not her exact words.18 Additionally, the phrasing defendant was purported to 

have used in both instances was not “nearly identical”; the terms “shadow” and “spirit” or 

“demon” are not similar. Further, as we have detailed above, Dr. Resnick testified an 

epilepsy patient can “see and hear things” “during an aura of an epileptic seizure.” The 

shadow evidence was weak evidence of a possible hallucination at an unknown time, at 

best. 

Defendant’s statements about Mirabelle’s eyes moving back and forth is evidence 

of a possible visual hallucination that was proffered and later supported by the evidence 

at trial. But while it is possible defendant hallucinated Mirabelle’s eyes moving back and 

forth, Dr. Vickers testified an eight-week-old infant could track something around the 

room with her eyes, and she disagreed that perceiving an infant’s eye movement was 

necessarily evidence of a hallucination. 

There was certainly evidence at trial that, following Mirabelle’s death, defendant 

discussed her experiences seeing, dreaming, and being told about spirits, demons, and 

shadows. However, no expert witness testified that these experiences necessarily 

constituted psychotic hallucinations, and Dr. Resnick testified that the mere presence of 

hallucinations do not always render the sufferer psychotic. There was no evidence that 

defendant was ever diagnosed with or treated for psychosis, despite testimony that such 

an illness would have been obvious to everyone around her, and despite Dr. Vickers’ 

testimony that psychosis is not the kind of illness that would appear one day and 

disappear the next. Indeed, in the hours and days after the killing, defendant interacted 

with numerous first responders and law enforcement personnel, some of whom 

interviewed her for hours on end, and none testified or otherwise indicated that defendant 

presented as profoundly mentally ill, suggesting psychosis. 

18

 The translated transcript of defendant’s conversation with Chi does not reflect that 

defendant observed a spirit or demon “walk around the house.” 
42

Accordingly, when considering the evidentiary value of the evidence of 

hallucinations, we recognize both that there is evidence to support the finding that 

defendant experienced hallucinations, but also evidence suggesting that defendant held 

cultural, spiritual, or superstitious beliefs that a spirit or demon was causing her to have 

seizures. Chi, who provided the strongest testimony suggesting that defendant 

experienced hallucinations, explained in his conversation with the district attorney that 

defendant was trying to say that a demon took over her body and caused her to have a 

seizure, which made her do what she did. Chi also testified that defendant’s statements to 

him were her attempt to piece together a justification for what happened. Thus, while we 

agree there was some evidence of hallucinations, we conclude the probative value of that 

evidence was substantially weakened by defendant’s other statements and her family’s 

testimony regarding her beliefs, expert testimony that 10 to 15 percent of people 

experience hallucinations and are not psychotic, and a conspicuous absence of other 

evidence of psychosis. 

Fourth, the prosecutor acknowledged there was no evidence of sleep disturbances, 

but claimed defendant was “clearly paranoid that day” because she described a spirit 

looking in on her and took her baby. As we have discussed, this proffer of paranoia is not 

supported by the record and, even assuming the actions themselves were supported, the 

resulting assertion of paranoia is not. The only testimony regarding paranoia came from 

Dr. Resnick, who testified the baby’s eye movement and the possibility of someone 

looking into the window did not constitute paranoia. 

Fifth, the prosecutor offered his “most persuasive[ ]” evidence, that defendant 

thought about harming herself or her baby. He quoted extensively from defendant’s 

interview with Merten, which we have discussed in detail ante. As we have described, 

although in that interview defendant admitted she had thoughts of harming herself due to 

her untreated seizure disorder, she did not say she had thoughts of harming the baby or 

her other children. There is simply no evidence of that. Instead, defendant expressly 
43

denied any thoughts of harming her children; soon after Mirabelle’s death, defendant 

stated she would not kill herself, specifically for the sake of her children. Additionally, 

while defendant acknowledged she thought of killing herself at some point due to her 

seizures, there is nothing to suggest these thoughts arose following Mirabelle’s birth, 

much less that these thoughts arose as a symptom of postpartum psychosis. 

The prosecutor attempted to bolster the evidence by arguing that defendant’s act of 

killing her daughter suggests she suffered from undiagnosed postpartum psychosis, and 

her undiagnosed postpartum psychosis caused her to kill her daughter. The prosecutor

asserted: “While [defendant] states it both ways in this portion of the conversation, it is 

clear that she has thought about killing herself in the past and has contemplated killing 

herself presently but has ruled it out for the sake of her children. We also know that she 

did kill Mirabelle. Therefore, this symptom would also be consistent with [postpartum] 

psychosis.” That assertion attempts to connect and extend defendant’s admitted thoughts 

of self-harm to thoughts of harming her children, which she consistently denied, by virtue 

of the fact that eventually defendant did indeed harm one of her children. This circular 

argument did not provide any factual support for Dr. Vickers’ testimony. 

Finally, the prosecution contended that “[t]he jurors will naturally want and 

appropriately need to know if there are factors that support post partum depression or 

psychosis.” We do not see the relevance of prospective jurors’ preconceptions about the 

role of postpartum mental disorders in Mirabelle’s death in determining whether there is 

evidence that defendant suffered from a postpartum mental disorder such that a 

foundation for expert testimony was established. 

The prosecution concluded by observing there is no single cause or symptom of 

postpartum depression and asserted evidence of postpartum depression is therefore 

supported. As we will discuss post, this argument foreshadowed Dr. Vickers’ testimony, 

which invited the jury to find defendant suffered from an undiagnosed mental disorder 

based on the application of any number of risk factors and symptoms--such as 
44

socioeconomic and immigration status--not constituting a competent basis for such a 

diagnosis. Viewed as a whole, the prosecution’s purported evidence of undiagnosed 

postpartum psychosis was weak and speculative, based almost exclusively on the strained 

assertion that defendant’s belief in spirits and use of such supernatural terms in reference 

to her seizures, her dreams, and her statements about what other people told her 

amounted to evidence of psychosis. The testimony was unsupported by sufficient factual 

bases.

D. Propensity, Character, and Prejudice

Defendant contends that Dr. Vickers’ testimony, rather than tending to prove her 

motive to commit a crime, amounted to improper character and propensity evidence

because it only tended to show that a mother with defendant’s characteristics is more 

likely to develop a postpartum mental disorder, and a person suffering from a postpartum 

mental disorder is more likely to harm her baby. Section 1101, subdivision (a) provides 

that evidence of a person’s character or a trait of her character, whether in the form of an 

opinion, evidence of reputation, or evidence of specific instances of her conduct, is not

admissible when offered to prove her conduct on a specific occasion. “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 [s]he behaved in conformity with 

that character on a particular occasion.’ ” (People v. Gonzales (2012) 54 Cal.4th 1234, 

1257 (Gonzales).) 

The Attorney General responds that the prosecutor never intimated that defendant 

was guilty due to a mental condition that caused her to have a propensity to kill, but 

rather based his case on the evidence of defendant’s mental state and her conduct at the 

time of the killing. Further, the Attorney General asserts that even if the evidence were 

character or propensity evidence, evidence that defendant suffered from a postpartum 
45

mental disorder was admissible as “uncharged conduct” under section 1101, subdivision 

(b).19

In the absence of expertise regarding how to diagnose postpartum mental disorders

and the absence of such a diagnosis for defendant, who had screened normal, Dr. Vickers 

provided a list of “risk factors” relevant to the development of postpartum depression. 

She explained it is unknown what causes postpartum depression or how many risk factors 

are required--although typically more than one--before a mother has postpartum 

depression. She further informed the jury that postpartum mental disorders are greatly 

underdiagnosed, meaning an absence of a diagnosis is not dispositive of (indeed, barely 

relevant to) whether defendant suffered from a postpartum mental disorder. The effect of 

this testimony was to inform the jury that defendant was at a higher risk of developing 

postpartum depression due to factors such as stress in her life, her socioeconomic 

status,20 her introverted personality, her decision to not breastfeed, and her status as a 

member of an immigrant community. The testimony presented as a laundry list of 

background and character traits that were common to postpartum mental disorders, and 

suggested defendant was more likely to develop postpartum mental disorders due to 

various character traits, which impermissibly and prejudicially bolstered otherwise weak 

evidence of such disorders. 

19

 That subdivision provides: “Nothing in this section prohibits the admission of 

evidence that a person committed a crime, civil wrong, or other act when relevant to 

prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake or accident, or whether a defendant in a prosecution for an 

unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith 

believe that the victim consented) other than his or her disposition to commit such an 

act.”

20

 There was evidence defendant and her husband had periodically been under financial 

stress, and there was evidence defendant was applying for public assistance benefits on 

the day she killed her daughter. 
46

Dr. Vickers then testified that 41 percent of mothers with mental illness think 

about harming their babies, compared with seven percent of those not suffering from a 

mental illness. The prosecutor relied on this statistic in both closing and in rebuttal, when 

he referred to studies showing that mothers with “psychiatric issues” are especially prone

to have thoughts of “killing their child.” Although there was no evidence that Mirabelle 

had colic, Dr. Vickers also testified that 70 percent of mothers with colicky infants 

experience explicitly aggressive thoughts toward their infants, and 26 percent of them 

had infanticidal thoughts during the colicky episode. 

Evidence of these risk factors, and the testimony that mothers satisfying some 

number of these risk factors are more likely to develop postpartum depression and 

psychosis, amounted to character evidence prohibited by section 1101, subdivision (a). 

The effect of the testimony was to invite the jury to apply these risk factors to defendant’s 

character traits and find she was more likely to develop postpartum depression and 

psychosis, and consequently was more likely to kill her daughter. Without their 

application to defendant, these character traits--some highly personal, such as the 

decision to breastfeed, and some incontrovertible, such as immigrant status and 

introverted personality--were irrelevant.

In Gonzales, supra, 54 Cal.4th 1234 at page 1255, the defendant claimed the trial 

court erred by refusing to allow him to introduce evidence that his wife witnessed and 

experienced instances of child abuse for purposes of establishing third party liability for a 

child abuse charge. Our Supreme Court upheld the trial court’s decision to exclude the 

evidence as inadmissible character evidence under section 1101. (Gonzales, at p. 1257.) 

The court recognized the purpose of the evidence was to invite the jury to infer that the 

wife, rather than the defendant, was responsible for the abuse due to a propensity the wife 

developed during her childhood, predisposing her to abuse her child. (Ibid.) Similarly,

here, the risk factor evidence invited the jury to find defendant had a propensity to 

develop postpartum psychosis. 
47

The Attorney General argues the evidence was not used to show defendant’s 

propensity to commit a crime. He contends Dr. Vickers did not testify that women with 

postpartum disorders are more likely to commit crimes or testify defendant ever had 

postpartum depression, blues, or psychosis, and he denies that the prosecutor intimated 

defendant was guilty due to a mental condition. He further contends the instructions 

given to the jury appropriately instructed the jury to not consider bias based on disability, 

to assign weight to and disregard unbelievable, unreasonable, or unsupported expert 

testimony, and to consider whether defendant had a motive to kill.21

21

 The court instructed the jury with CALCRIM No. 200 in relevant part: “Do not let 

bias, sympathy, prejudice or public opinion influence your decision. Bias includes, but is 

not limited to, bias for or against the witnesses, attorneys or the defendant, based on 

disability, gender, nationality, national origin, race or ethnicity, religion, gender identity, 

sexual orientation, age or socioeconomic status.”

 The court also instructed the jury with CALCRIM No. 332 in relevant part: 

“Witnesses are allowed to testify as experts and to give opinions. . . . [¶] You must 

consider the opinions, but you are not required to accept them as true or correct. The 

meaning and importance or any opinion are for you to decide. [¶] In evaluating the 

believability of an expert witness, follow the instructions about the believability of 

witnesses generally. In addition, consider the expert’s knowledge, skill, experience, 

training and education, the reasons the expert gave for any opinion and the facts or 

information on which the expert relied in reaching that opinion. [¶] You must decide 

whether information on which the expert relied was true and accurate. You may 

disregard any opinion that you find unbelievable, unreasonable, or unsupported by the 

evidence. [¶] [¶] If the expert witnesses disagreed with one another, you should weigh 

each opinion against the others. You should examine the reasons given for each opinion 

and the facts or other matters on which each witness relied. You may also compare the 

experts’ qualifications.”

 The court further instructed the jury with CALCRIM No. 370 in relevant part: 

“The People are not required to prove that the defendant had a motive to commit any of 

the crimes charged. In reaching your verdict, you may, however, consider whether the 

defendant had a motive. Having a motive may be a factor tending to show that the 

defendant is guilty. Not having a motive may be a factor tending to show the defendant 

is not guilty.” 
48

We disagree that these pattern instructions were sufficient to neutralize the error. 

Dr. Vickers testified that mothers with postpartum psychosis pose a “significant risk” of 

“severe injury and death” to their babies and presented statistics about the increase of 

explicitly aggressive thoughts in mentally ill mothers or those with colicky infants. 

While these statistics do not confirm that mentally ill mothers often harm their children--

as opposed to often think about harming their children--the statistics generally support 

Dr. Vickers’ testimony that children of mothers who are psychotic are at significant risk 

of injury or death. Additionally, although the jury was instructed not to let bias or 

prejudice affect its decision, the jury was also expressly told by Dr. Vickers that 

defendant’s introverted personality, socioeconomic status, and ethnicity were legitimate 

grounds on which to find she was more likely to develop postpartum depression and 

psychosis, and thereby become a danger to her child. This made the jury much less likely 

to consider those factors as signaling bias or prejudice despite proper instruction with 

CALCRIM No. 200. 

The Attorney General next argues that even if the testimony was inadmissible 

character evidence, it was admissible as evidence of “uncharged conduct” under section 

1101, subdivision (b). The Attorney General does not explain, and we do not see how, 

the traits we have described constitute uncharged crime or other misconduct admissible 

under section 1101, subdivision (b). (See Gonzales, supra, 54 Cal.4th at p. 1258 

[evidence that third party internalized abuse she experienced as a child not a specific act 

of misconduct; such evidence is “pure character evidence, well beyond the scope of 

[§ 1101, subd. (b)]”].) 

After conveying to the jury that defendant was at higher risk of developing 

postpartum depression due to her character traits, Dr. Vickers then testified about the 

symptoms of postpartum depression, including such broadly-worded categories as 

difficulty sleeping, changes in appetite, anger, agitation, inability to concentrate, periods 

of crying with no explanation, and disruptions of daily life. But Dr. Vickers did not, and 
49

could not, testify about how those symptoms would factor into a competent diagnosis of 

postpartum depression. Therefore, the jury was left with the understanding that 

defendant was at a higher risk of developing postpartum depression, and she could have 

suffered from postpartum depression if she, for example, had any trouble sleeping, had 

any change in her appetite,22 or appeared agitated. No testimony informed the jury how 

to assess the severity of these symptoms or which combinations of the general symptoms 

were a sufficient basis on which to diagnose a mother of multiple young children with 

postpartum depression. 

Dr. Vickers then testified that postpartum psychosis develops from untreated 

postpartum depression and that a history of postpartum mental health disorders is a risk 

factor for developing postpartum psychosis. Thus the jury was informed that defendant 

was at a higher risk of developing psychosis based on the general application of risk 

factors and symptoms of postpartum depression. 

Dr. Vickers explained the symptoms of postpartum psychosis, including auditory 

hallucinations, visual hallucinations, disorientation, paranoia, thoughts of harming the 

child, not knowing who or where they are, rapid mood changes, irritability, psychomotor 

agitation, severe insomnia, and profound symptoms of mental illness. She testified that a

person who is experiencing a psychotic episode has become detached from their 

circumstances or reality. Revisiting the prosecution’s asserted factual connection of 

postpartum psychosis to the facts of this case demonstrates the marginal probative value 

of this testimony. Before trial, the prosecution asserted evidence of psychosis included 

obsessive thoughts about her baby crying and disorientation at the scene of the killing. 

Through Dr. Vickers’ testimony, the jury was informed that defendant was at a higher 

22

 Dr. Resnick testified that a person must lose five percent of her body weight before a 

loss of appetite is considered significant. There is no evidence that defendant suffered 

clinically significant weight loss.
50

risk of developing postpartum psychosis due to character traits that might signal a 

tendency to develop postpartum depression, because the depression was likely to go 

untreated as it was likely to be undiagnosed. The jury was also told that defendant might 

have suffered from postpartum psychosis because her daughter was crying more than 

normal and because she informed first responders that she had a seizure and, 

consequently, could not remember and did not know what happened to her daughter. 

These are highly dubious factual connections that were supported only by Dr. Vickers’ 

testimony. 

The Attorney General contends Dr. Vickers’ testimony was highly probative, and 

the facts upon which Dr. Vickers’ testimony was based were not inflammatory, 

extraneous, or irrelevant because that evidence was derived from defendant’s statements, 

including those about spirits and demons, ghosts, a fear of cemeteries, black shadows, 

and Mirabelle’s rolling eyes. But absent a credible foundation for determining defendant 

suffered from a postpartum mental disorder, the jury was invited to find defendant was 

more likely to develop postpartum psychosis in part due to her ethnicity, introverted 

personality, and socioeconomic status. After making that foundational finding, the jury 

was more likely to accept the prosecutor’s strained evidence of symptoms of postpartum 

psychosis. 

The prosecutor’s closing argument highlighted the purported evidence of 

psychosis. He asserted the jury should consider that postpartum mental disorders are 

underdiagnosed, implying an absence of a diagnosis was irrelevant to the determination 

that defendant suffered from such disorder. He highlighted defendant’s admission of 

having had auditory hallucinations,23 her thoughts of suicide, the Caucasian demon Chi 

had referenced, Mirabelle’s eyes tracking around the room, and defendant’s fear of 

23

 We discuss the admissibility of psychological records relevant to defendant’s auditory 

hallucinations, post. 
51

demons and cemeteries. The prosecutor also contended defendant’s undiagnosed 

psychosis made her more likely to kill her daughter, relying on the statistics cited by Dr. 

Vickers. Dr. Vickers’ testimony provided a misleading foundation for this argument and 

bolstered otherwise weak evidence of any symptoms of postpartum mental disorders. 

The evidence was substantially more prejudicial than probative, due to its very limited 

foundation and its tendency to mislead the jury, and the trial court abused its discretion 

by permitting the challenged testimony.

We discuss the whether the error in admitting Dr. Vickers’ testimony was 

harmless in Part III of our Discussion, post. 

II

Psychotherapist Records

Defendant contends the prosecution was improperly granted access to her

privileged psychological records from her time in county jail in violation of the statutory 

psychotherapist-patient privilege (§ 1014) and the constitutional right of privacy. She 

further asserts the prosecutor improperly used confidential records inadvertently 

delivered to him to convince the trial court to release defendant’s psychiatric file to the 

prosecution after the court had already ruled that the records were privileged. The 

Attorney General responds that defendant waived the psychotherapist-patient privilege by 

tendering an unconsciousness defense, which he claims put her mental condition at issue 

under the patient-litigant exception to the privilege. As we explain, we agree with 

defendant. 

A. Procedural Background

Both parties subpoenaed defendant’s medical and psychological records, including 

her post-arrest records from the Sacramento County Jail. During argument on motions in 

limine heard on October 6, 2015, during jury selection, defense counsel objected to the 

disclosure of any psychiatric records and invoked the “patient/psychotherapist privilege.” 

The prosecutor argued that defendant had put her mental state at issue with her defense, 
52

to which defense counsel responded that she was raising medical state rather than mental

state, i.e. medical unconsciousness. The court observed that defendant was “asserting a 

neurological rather than psychiatric problem”; defense counsel agreed with this 

observation. The court took the matter under submission pending receipt and review of 

the records. 

At an October 13 hearing, the trial court concluded that defendant’s 

psychotherapist-patient privilege was still intact, but defendant’s medical records related 

to her epilepsy were relevant and not privileged. The court stated it continued to review

the records it received, and it had not yet reviewed any records subject to the 

psychotherapist-patient privilege. On October 15, the court affirmed that the People were 

entitled to defendant’s medical records related to her epilepsy. The court indicated it 

would continue to review records from the jail to identify if any records were arguably 

privileged, in which case it would entertain further argument from the parties as to the 

production of those records. The court recognized its default would be to withhold from 

the prosecution anything that looked like it could conceivably implicate privilege. On 

October 20, the court stated that it had divided the jail records into three categories: 

(1) records protected under the psychotherapist-patient privilege; (2) medical records 

referring to defendant’s epilepsy that would be given to the prosecution; and (3) medical 

records unrelated to the issues at trial that would not be given to the prosecution. 

After obtaining the continuance following the trial court’s decision to allow Dr. 

Vickers’ testimony, defendant secured the testimony of Dr. Resnick, whose testimony we 

have outlined in detail ante, to rebut the prosecution’s theory, spearheaded by Dr. 

Vickers’ testimony, that defendant was motivated to kill by hallucinations caused by an 

undiagnosed postpartum mental disorder. 

At a midtrial hearing held on October 29, 2015 (Thursday), the parties discussed 

the proposed testimony by Dr. Resnick, anticipated to be presented out of order during 

the prosecution’s case, due to a scheduling issue, on the following Monday (the next 
53

court day). The prosecutor objected to Dr. Resnick’s proffered testimony that no 

evidence suggested defendant had a motive to put her child in the microwave oven and 

that a seizure was the most likely explanation for Mirabelle’s death. The court deferred 

the issue to Monday. There was no mention of privilege or request to revisit the court’s 

ruling thereon at this hearing. The prosecutor filed his points and authorities the 

following Monday morning, seeking to limit defense expert testimony on the issue of 

motive and to limit expert testimony putting hearsay before the jury; again, there was no 

mention of access to documents previously ruled privileged. 

The following Monday, November 2, the trial court ruled that Dr. Resnick could 

testify as to his categories of infanticide (which we explained ante when detailing the 

contents of his trial testimony), but he would not be permitted to offer an opinion as to 

which one applied to defendant or whether defendant was conscious at the time of 

Mirabelle’s death. After the court ruled, the prosecutor indicated he had sent the court a 

request for defendant’s psychological records. He then disclosed that he had already 

received and reviewed some psychological records, including a “psychological checklist, 

where [defendant] is talking about depression. She’s got a depressive disorder. She has 

referenced potential thoughts of harming herself.” The prosecutor argued if Dr. Resnick 

testified defendant had no suicidal thoughts, psychological issues, or depression, he was 

entitled to cross-examine Dr. Resnick with the relevant portions of defendant’s 

psychological records that he (the prosecutor) had already reviewed.

24

 The court 

indicated it was inclined to agree but would “hear the direct” before ruling. The court 

stated that it had disclosed only “medical, non-psych records, but you’re saying there is 

24

 The prosecutor later clarified (on Wednesday, November 4) when defending the 

subsequent motion for mistrial that he had “discovered on the Sunday [November 1] in 

my preparation that there are a couple of pages that I had.” 
54

some psych. I mean, I’m wondering if maybe some of the psych -- I’m wondering if 

those records got segregated in the way I intended.” 

Dr. Resnick then testified on direct examination as we have detailed ante. 

During the morning recess, taken prior to Dr. Resnick’s cross-examination, the 

prosecutor sought permission from the court to “go into psych records that I do have.” 

He also requested the remainder of defendant’s records, arguing that defendant had “put[] 

her mental state in issue.” He proffered to the court: “In the psych records, [defendant] 

talks about auditory hallucinations. . . . [T]here was adjustment disorder with depressed 

mood, depressive disorder nonspecific, moderate . . . . She has auditory hallucinations 

. . . [¶] So at her entry into the jail, and a couple of times in the jail, it appears she had 

some auditory hallucinations.”25 

Over defense objection, the trial court allowed the prosecutor to go forward using 

“whatever materials he has in the medical stuff that apparently includes some psych 

relevant aspects, although my intention was to have pulled all that out. . . . I think we 

failed in the endeavor.” The court also ordered disclosure of any remaining records 

referencing “psychiatric issues or psychological issues” not already inadvertently 

disclosed to the prosecutor, without detailing its reasoning in that regard, at the noon 

recess. 

25

 This midmorning proffer seems inconsistent with the prosecutor’s later claim when 

defending the motion for mistrial that he had discovered in the newly provided records 

“something very critical, the fact that [defendant] had auditory hallucinations” at the 

lunch recess that same day. However, he did appear to later qualify that “the critical 

pages . . . where [defendant] had auditory hallucinations described on August 2nd, 2011, 

in the records, those were only discovered be me in the new packet” that he had received 

at the lunch break. Either way, it is clear that records referencing auditory hallucinations 

were received and examined by the prosecutor before the court reversed its earlier ruling 

prohibiting disclosure of the psychological records to him.
55

The prosecutor then cross-examined Dr. Resnick with defendant’s psychological 

records as we have detailed ante. The examination continued after the noon hour, by 

which time the prosecutor had been provided with the privileged records in their entirety.

B. Affirmative Use of Documents Subject to Psychotherapist-Patient Privilege 

We begin with defendant’s claim that the prosecutor excessively reviewed 

defendant’s privileged psychological records inadvertently delivered to him by the court. 

In the context of waiving the attorney-client privilege under section 912, which also 

governs waiver of the psychotherapist-patient privilege under section 1014, the court in 

State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 at pages 656 to 657 

summarized the ethical obligation of an attorney who receives privileged documents due 

to inadvertence: “ ‘When a lawyer who receives materials that obviously appear to be 

subject to an attorney-client privilege or otherwise clearly appear to be confidential and 

privileged and where it is reasonably apparent that the materials were provided or made 

available through inadvertence, the lawyer receiving such materials should refrain from 

examining the materials any more than is essential to ascertain if the materials are 

privileged, and shall immediately notify the sender that he or she possesses material that 

appears to be privileged. The parties may then proceed to resolve the situation by 

agreement or may resort to the court for guidance with the benefit of protective orders 

and other judicial intervention as may be justified.” 

In Rico v. Mitsubishi Motors Corporation (2007) 42 Cal.4th 807 at page 817, our 

Supreme Court agreed the State Fund rule is a “fair and reasonable approach.” The court 

extended the State Fund rule to documents protected by the work product privilege, and it 

observed the rule extends to “any other similar doctrine that would preclude discovery 

based on the confidential nature of the document.” (Id. at p. 817, fn. 9.) 

We recognize at the outset there is nothing to suggest the prosecutor intentionally 

obtained any privileged psychological record; however, it is clear that he reviewed those 

records he did receive. The first record referenced was entitled “psychological 
56

checklist,” which clearly signaled its privileged status, and the prosecutor recited in open 

court the diagnoses and symptoms reflected by the record. Upon realizing the privileged 

nature of the record, the prosecutor should have stopped reading and followed the 

procedure outlined by the cases referenced above. 

As we have detailed ante, despite recognizing the prosecutor was not supposed to 

have the record at all, the trial court allowed the prosecutor to affirmatively use the record 

to cross-examine Dr. Resnick and also as a proffer to obtain disclosure of the remaining 

records previously classified as protected from disclosure by the privilege. As we discuss 

post, this was an abuse of the court’s discretion.

C. Psychotherapist-Patient Privilege and the Patient-Litigant Exception 

A patient “has a privilege to refuse to disclose, and to prevent another from 

disclosing, a confidential communication between patient and psychotherapist.” 

(§ 1014.) The privilege covers “information, including information obtained by an 

examination of the patient, transmitted between a patient and his psychotherapist in the 

course of that relationship and in confidence . . . .” (§ 1012.) The prosecution bears the 

burden of establishing a statutory exception applies where undisputed facts at trial show 

the testimony involves confidential communications between a patient and a 

psychotherapist. (People v. Gonzales (2013) 56 Cal.4th 353, 372.) “[T]he 

psychotherapist-patient privilege is to be liberally construed in favor of the patient.” 

(Roberts v. Superior Court (1973) 9 Cal.3d 330, 337 (Roberts).) “We have an ‘obligation 

to construe narrowly any exception to the psychotherapist-patient privilege: we must 

apply such an exception only when the patient’s case falls squarely within its ambit.’ ” 

(People v. Wharton (1991) 53 Cal.3d 522, 554.) “The privilege is also considered 

‘paramount to prosecution,’ generally outweighing the People’s interest in successful 

prosecutions and their right to due process of law under article I, section 28, subdivision 

(d) of the California Constitution.” (Story v. Superior Court (2003) 109 Cal.App.4th 

1007, 1014.) 
57

Under the patient-litigant exception to the psychotherapist-patient privilege, there 

is no privilege “as to a communication relevant to an issue concerning the mental or 

emotional condition of the patient if such issue has been tendered by . . . [t]he patient.” 

(§ 1016.) “There are two grounds for the patient-litigant exception. ‘First, the courts 

have noted that the patient, in raising the issue of a specific ailment or condition in 

litigation, in effect dispenses with the confidentiality of that ailment and may no longer 

justifiably seek protection from the humiliation of its exposure. Second, the exception 

represents a judgment that, in all fairness, a patient should not be permitted to establish a 

claim while simultaneously foreclosing inquiry into relevant matters.’ ” (Manela v. 

Superior Court (2009) 177 Cal.App.4th 1139, 1148-1149, italics added (Manela); 

Roberts, supra, 9 Cal.3d at p. 337 [patient-litigant exception allows limited inquiry into 

the confidences of the psychotherapist-patient relationship, compelling disclosure of only 

those matters directly relevant to the nature of the specific “emotional or mental”

condition the patient voluntarily disclosed and tendered].) “ ‘Disclosure cannot be 

compelled with respect to other aspects of the patient-litigant’s personality even though 

they may, in some sense, be “relevant” to the substantive issues of litigation.’ ” (Roberts, 

at p. 338.) 

In In re Lifschutz (1970) 2 Cal.3d 415, at pages 435 to 437, our Supreme Court 

elaborated on the parameters of the patient-litigant exception. The court recognized that 

where a party institutes an action seeking redress for a specific mental or emotional injury 

following an assault, such a limited waiver of the psychiatrist-patient privilege does not 

extend to psychological records tending to show the party seeking damages had 

previously “exhibited aggressive tendencies or had other personal attributes that might be 

related to the assault.” (Id. at p. 435, fn. 21.) The court recognized, however, that in 

some cases a party puts their entire mental condition in issue, and all psychological 

records are relevant. (Id. at p. 435.) For example, a mental patient seeking a 

determination they are no longer “ ‘dangerous’ ” or “ ‘violent’ ” has put their mental 
58

condition in issue. (Id. at pp. 435-436, citing In re Cathey (1961) 55 Cal.2d 679, 691, 

disapproved of on other grounds in In re Barnett (2003) 31 Cal.4th 466.) A criminal 

defendant who tenders a defense based on evidence of a mental disorder may thereby 

waive the privilege. (People v. Ledesma (2006) 39 Cal.4th 641, 659, 690 [diminished 

capacity]; People v. Clark (1993) 5 Cal.4th 950, 1005 [“rage reaction” defense]; People 

v. Montiel (1993) 5 Cal.4th 877, 923, disapproved of on other grounds by People v. 

Sanchez (2016) 63 Cal.4th 665 [impaired mental condition].) 

A patient loses the protection of the psychotherapist-patient privilege only if they 

are first to “tender” the issue in litigation. In that regard, the court looks to see which 

party was first to raise the issue. (Manela, supra, 177 Cal.App.4th at pp. 1149-1150.) A 

party does not tender their mental condition simply by denying the opposing party’s 

allegations regarding that condition. (Id. at p. 1149.) Pre-litigation statements made by a 

person to authorities do not “tender” an issue “in litigation” within the meaning of the 

patient-litigant exception. (Karen P. v. Superior Court (2011) 200 Cal.App.4th 908, 

913.) Nor is there an “impeachment exception” to the psychotherapist-patient privilege. 

(See, e.g., People v. Cannata (2015) 233 Cal.App.4th 1113, 1123 [patient does not waive 

psychotherapist-patient privilege by testifying at trial where patient did not place his 

“ ‘mental or emotional condition’ in issue at trial”].) We review a trial court’s discovery 

order under an abuse of discretion standard. (Story v. Superior Court, supra, 

109 Cal.App.4th at pp. 1013-1014.) 

D. Application of the Patient-Litigant Exception

The parties agree, as do we, that defendant’s jail psychiatric records were 

privileged under the psychotherapist-patient privilege. (§ 1014.) The parties dispute two 

issues: (1) whether defendant’s assertion of the affirmative defense of unconsciousness 

due to epileptic seizure put defendant’s mental condition at issue for purposes of waiving 

the psychotherapist-patient privilege, and (2) if so, whether the scope of such a waiver 

includes psychotherapist records regarding depression, auditory hallucinations, or other 
59

evidence of postpartum mental disorders. We conclude that the scope of any such waiver 

did not extend to the records disputed here. 

The Attorney General argues the prosecution was broadly entitled to rebut 

defendant’s unconsciousness defense with evidence of her mental condition. But we 

must liberally construe the psychotherapist-patient privilege in defendant’s favor and 

narrowly construe the patient-litigant exception to the privilege. (Roberts, supra, 9 

Cal.3d at p. 337; People v. Wharton, supra, 53 Cal.3d at p. 554.) Accordingly, we 

construe defendant’s unconsciousness defense as waiving her psychotherapist privilege 

only for records narrowly and directly related to the specific issue of her consciousness. 

Pursuant to that waiver and by way of hypothetical example, the People were entitled to 

any psychological record stating defendant remembered killing Mirabelle, defendant 

previously claimed unconsciousness, or defendant was diagnosed with some kind of 

pathological compulsion to assert unconsciousness whenever confronted with her 

misconduct. Such records would be directly related to the narrow issue of any mental 

(rather than medical) component of defendant’s consciousness. 

Here, the prosecutor, rather than defendant, tendered the issue of defendant’s 

postpartum mental health; the People raised the issue and fought for admission of Dr. 

Vickers’ testimony as well as defendant’s psychological records as evidence of motive 

distinct from the question of defendant’s consciousness. This alternative theory sought to 

affirmatively establish that defendant suffered from an undiagnosed postpartum mental 

disorder that motivated her to kill. The records the prosecutor used to cross-examine Dr. 

Resnick, concerning defendant’s post-killing diagnosis of a depressive disorder, evidence 

of a reduced appetite after Mirabelle’s birth, and evidence she experienced auditory 

hallucinations after Mirabelle’s birth, were only indirectly relevant, if at all, to the issue 

of defendant’s consciousness. Therefore, assuming for the sake of argument that 

unconsciousness related to epilepsy is to some extent a mental rather than a purely 

medical condition, those records did not fall within the scope of the tendered condition. 
60

Because defendant did not waive her psychotherapist privilege with respect to her 

psychological records, the trial court abused its discretion by disclosing the records to the 

prosecution and allowing their utilization during cross-examination and for all purposes 

subsequent to the records’ admission, including closing argument. As we have stated, 

there is no “impeachment exception” to the psychotherapist-patient privilege. (See, e.g., 

People v. Cannata, supra, 233 Cal.App.4th at p. 1123.) That rule follows from the 

commonsense proposition that a patient who has not put their mental condition in issue 

does not waive their psychotherapist-patient privilege by denying an opposing party’s 

allegations. (Manela, supra, 177 Cal.App.4th at pp. 1149-1150.) Indeed, an 

impeachment exception to the psychotherapist-patient privilege would eviscerate the 

privilege by allowing a party seeking to prove an allegation against a privilege holder by 

putting the privilege holder’s mental condition in issue and make allegations related to 

that condition. For example, here the prosecution put defendant’s mental condition at 

issue by pursuing a motive theory that defendant suffered from postpartum psychosis. In 

such a situation, the holder of the privilege would be required to either not refute the 

allegation for fear of waiving the privilege, or refute the allegation and waive the 

privilege. We decline to adopt such a rule. 

Even if Dr. Vickers’ testimony had been properly admitted, that testimony was the 

first to tender defendant’s mental condition. Until the time of Dr. Vickers’ testimony, 

defendant had proffered only that she was unconscious due to an epileptic seizure. 

Although the prosecutor referenced the “social factors” referenced by Dr. Garcia’s report 

in his initial (and unsuccessful) argument to deem the privilege waived, these were not 

mental state factors. Because the prosecution tendered defendant’s mental condition, the 

psychological records remained privileged as previously ruled by the trial court unless the 

defense elicited testimony about the records; it did not. (§§ 912, 1014, 1016.) 

As we have described, here the prosecution circumvented the psychotherapistpatient privilege by: (1) tendering defendant’s mental condition; (2) inadvertently 
61

obtaining and improperly reviewing and revealing privileged psychological records; 

(3) waiting for defendant to rebut testimony regarding the tendered mental condition; and 

(4) demanding access to the privileged records to impeach defendant’s rebuttal witness.

That is exactly the situation the privilege is intended to protect against. The patientlitigant exception applies where the patient-litigant herself tenders the mental condition, 

not where the patient-litigant is forced to rebut the tendering party’s evidence regarding 

her mental condition. The patient is not required to disclose her psychological records in 

order to rebut the tendering party’s assertion. The disclosure of defendant’s privileged 

psychological records was error. We discuss the whether this error was harmless in Part 

III of our discussion, immediately post.

III

Cumulative Error

We requested and received supplemental briefing on the issue of cumulative error; 

specifically, we asked whether errors in the admission of Dr. Vickers’ testimony 

combined with errors in permitting disclosure of the privileged materials resulted in 

prejudicial error when considered together. After careful consideration, we conclude that 

we must answer that question in the affirmative, as we now explain.26

26

 Defendant contends we should conduct our cumulative error analysis under the 

standard set forth in Chapman v. California (1967) 386 U.S. 18 because the improper 

breach of defendant’s psychotherapist-patient privilege violated her federal constitutional 

right to privacy. As we will discuss, we conclude the cumulative effect of the violation 

of defendant’s psychotherapist-patient privilege and the erroneous admission of Dr. 

Vickers’ testimony constitute a miscarriage of justice, and therefore we do not address 

defendant’s claim regarding the federal constitutional right to privacy. Further, the case 

defendant relies upon for the proposition that cumulative error may be reviewed under 

the Chapman standard of harmless error, People v. Sturm (2006) 37 Cal.4th 1218, 1244, 

does not stand for that proposition. Rather, Sturm only concluded that the cumulative 

effect of the trial judge’s comments in that case required reversal under either the 

Chapman or Watson standard of review. (Ibid.)
62

A. Applicable Law and Framing of the Issue

A judgment shall not be reversed for the erroneous admission of evidence unless 

the result is a miscarriage of justice. (Cal. Const., art. VI, § 13; § 353, subd. (b); 

People v. Hill (1998) 17 Cal.4th 800, 844-845.) “Under the cumulative error doctrine, 

the reviewing court must ‘review each allegation and assess the cumulative effect of any 

errors to see if it is reasonably probable the jury would have reached a result more 

favorable to defendant in their absence.’ [Citation.] When the cumulative effect of errors 

deprives the defendant of a fair trial and due process, reversal is required.” (People v. 

Williams (2009) 170 Cal.App.4th 587, 646; People v. Cunningham (2001) 25 Cal.4th 

926, 1009 [series of trial errors, though independently harmless, “ ‘may in some 

circumstances rise by accretion to the level of reversible and prejudicial error’ ”]; 

People v. Falsetta (1999) 21 Cal.4th 903, 913 [“The admission of relevant evidence will 

not offend due process unless the evidence is so prejudicial as to render the defendant’s 

trial fundamentally unfair”].) Additionally, multiple errors may create a “negative 

synergistic effect, rendering the degree of overall unfairness to defendant more than that 

flowing from the sum of the individual errors.” (People v. Hill, supra, 17 Cal.4th at p. 

847; see also People v. Hernandez (1977) 70 Cal.App.3d 271, 281 [combination of two 

errors prejudicial due to synergistic effect of the errors]; People v. Cuccia (2002) 97 

Cal.App.4th 785, 795; People v. Holt (1984) 37 Cal.3d 436, 449-456 [cumulative 

prejudice from multiple errors relating to defendant’s credibility].) 

Under this standard, which is expressed in substantially the same manner as the 

review for prejudice required by People v. Watson (1956) 46 Cal.2d 818, there is a 

reasonable probability of a more favorable result when there exists “at least such an equal 

balance of reasonable probabilities as to leave the court in serious doubt as to whether the 

error affected the result.” (Id. at p. 837.) Under Watson, our review “ ‘focuses not on 

what a reasonable jury could do, but what such a jury is likely to have done in the absence 

of the error under consideration. In making that evaluation, an appellate court may 
63

consider, among other things, whether the evidence supporting the existing judgment is 

so relatively strong, and the evidence supporting a different outcome is so comparatively 

weak, that there is no reasonable probability the error of which the defendant complains 

affected the result.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 956.) The cumulative 

prejudice doctrine is based on an examination of the “entire record.” (Delzell v. Day

(1950) 36 Cal.2d 349, 351.) 

As we have discussed, the prosecution first tendered defendant’s mental condition 

by informing the trial court and the defense of its intent to pursue a postpartum mental 

health theory through Dr. Vickers. The court permitted Dr. Vickers’ testimony as 

proffered, which, as we concluded ante, was error. Defendant then sought and received a 

three week continuance (or perhaps more accurately a break in the trial, as jury selection 

had already begun), specifically to locate a witness to counter Dr. Vickers’ testimony and 

the resulting implication that defendant was motivated to kill by a postpartum mental 

disorder. There is no dispute that Dr. Resnick would not have been called to testify by 

the defense but for the need to counter the mental state evidence tendered by the 

prosecution as motive evidence. At the conclusion of Dr. Resnick’s direct examination, 

the prosecutor sought to cross examine him based on privileged information that the 

prosecutor had inadvertently received but purposefully reviewed; the prosecutor then 

sought and received further and complete disclosure of the privileged material based on a 

proffer that utilized the privileged records inadvertently disclosed. The trial court then 

permitted the disclosure and use of the entirety of the records as evidence at trial; as we 

have concluded ante, this disclosure and use was error. 

Faced with these multiple errors, we now address the issue of resulting prejudice.

B. Relative Strength of Defendant’s Unconsciousness Defense

Because the relevant law that we have outlined above requires us to assess the 

probable results of a trial that excludes the erroneously admitted evidence, we begin with 

a brief analysis of the strength of defendant’s unconsciousness defense. We acknowledge 
64

that the jury rejected this defense, but we also consider that it did so after hearing the 

erroneously admitted evidence. The Attorney General contends that defendant presented 

insufficient evidence of unconsciousness such that it simply could not have provided her 

with a defense to the charges. We disagree. 

As we have described at length ante, from the time of the killing and onward, 

defendant consistently asserted that she experienced a seizure just before the killing and 

did not remember the killing itself. Defense expert Dr. Garcia testified that defendant 

suffered from focal, complex partial, and generalized onset seizures and that postictal 

stages could last from as little as two minutes to up to 30 minutes. Dr. Garcia recognized 

that defendant’s medical records included a prior normal EEG, and the fact that her 

medication did not suppress her seizures suggested she suffered from partial seizures. 

Dr. Garcia also observed that he was told by law enforcement that defendant reported 

biting one side of her tongue, which is consistent with complex partial--not generalized 

onset--seizures. Additionally, defendant’s sister-in-law and brother, Kao, testified that 

defendant’s seizures were not always the same, and that she would sometimes “just kind 

of blank out for several minutes,” or experience a “fast seizure.” Thus, there is 

substantial evidence that defendant did not only suffer from generalized onset seizures, 

but that she also suffered from complex partial seizures. 

Dr. Garcia further testified that patients in a postictal state can place unusual items 

in unusual places, such as drawers, refrigerators, or toilets. He opined that defendant had 

sufficient time to have had a complex partial seizure, operate the microwave, and recover. 

Dr. Treiman, the prosecution’s expert, opined that defendant did not suffer from 

complex partial seizures because that condition was inconsistent with her history. 

However, even if defendant had experienced a generalized onset seizure, multiple 

witnesses to defendant’s generalized onset seizures testified that defendant would 

sometimes attempt to get up right after having a seizure, but would be told to stay down. 
65

This suggests that, in the absence of onlookers telling her otherwise, defendant attempted 

to get up and move around very quickly after having seizures in some instances. 

The Attorney General contends that defendant’s conduct was too complex to have 

been performed in a postictal state. He asserts that defendant was working on her 

computer until the moment she left for the kitchen, navigated with Mirabelle across the 

living room and to the microwave, opened it and placed Mirabelle inside, closed the door, 

and operated the microwave. She then waited for the microwave to stop running, 

removed Mirabelle, closed the door, and went to find her mother.27 She then told Choua 

that they needed to take the baby to the hospital and later performed mouth-to-mouth 

breathing on Mirabelle.28 

Dr. Treiman testified that ambulatory automatism in epileptics is uncommon, and 

it was unlikely that defendant’s behavior could be completed by a person in a postictal 

state. But even Dr. Treiman initially expressed the opinion that defendant should not be 

prosecuted for murder because there was enough evidence that she acted while 

unconscious. Moreover, while Dr. Treiman opined at trial that the time between 

defendant’s last act on her computer and the time she found her mother was insufficient 

27

 The Attorney General contends that defendant removed Mirabelle’s blanket before 

putting her in the microwave and then put the blanket back on her after taking her out. 

While the evidence shows that Mirabelle presented as swaddled both before and after she 

was killed, that does not support the assertion that defendant removed the blanket before 

putting her in the microwave and put it back on after the killing. The Attorney General 

also asserts that defendant consciously realized she could not seek help from Va because 

he was gone. That assertion reads too much into defendant’s statements to law 

enforcement, which we have described ante, wherein defendant provided an after-the-fact 

justification for why she did not seek out Va. There is no evidence that defendant 

thought about Va as she sought her mother. 

28

 The Attorney General also contends that defendant performed chest compressions, but 

after hearing the 911 call, Va testified that he performed the chest compressions. 

Additionally, defendant asserted that she performed these activities after she had regained 

consciousness, so we do not consider those activities as taking place during defendant’s 

alleged period of unconsciousness. 
66

for her to have had a seizure, perform the acts required to kill her daughter, and fully 

recover by the time Va returned home from picking up defendant’s sons from school, his 

conclusion was based on his opinion that defendant only suffered from generalized onset 

seizures, an opinion with which Dr. Garcia disagreed.

We recognize that defendant’s unconsciousness defense relies on a factual 

scenario the parties and expert witnesses agree is uncommon and even highly unlikely. 

However, there was substantial evidence from which a reasonable jury could have found 

that defendant killed her daughter while unconscious. 

C. Relative Strength of the Prosecutor’s Case

We next address the strength of the prosecutor’s case for defendant’s conscious 

killing of her baby as charged, without consideration of the erroneously admitted 

evidence.

The Attorney General contends that it is reasonably probable that the jury would 

have found that defendant “experienced something other than a seizure on the day she 

killed Mirabelle” even without the evidence at issue. But that is not our standard of 

review. Instead, we review for the reasonable probability that absent the errors the jury 

would have done something less than unanimously find defendant guilty as charged. 

(See People v. Williams, supra, 170 Cal.App.4th at p. 646 [we review each allegation and 

assess the cumulative effect of the errors to see “ ‘if it is reasonably probable the jury 

would have reached a result more favorable to defendant in their absence’ ”].) 

According to the Attorney General, “even in the absence of the evidence at issue, 

the prosecution would have theorized that appellant was conscious and did not suffer 

from a seizure. It would have argued that she did not have a seizure but suffered some 

sort of mental break that caused her to be highly anxious and paranoid, hallucinate a 

demon, and, in connection with her frustration with her daughter’s incessant crying, 

resulted in the murder.” 
67

Certainly it was within the jury’s prerogative to credit the testimony of Dr. 

Treiman over Dr. Garcia, despite the issues with that testimony as we have discussed, and 

conclude that defendant simply could not have done what she did while unconscious 

from suffering a seizure. And we do not disagree with the Attorney General when he 

asserts that: “[h]uman behavior, including extreme violence, can be unexplainable. 

Thus, based on the evidence, it would not be unreasonable for the jury to conclude that 

[defendant] did not experience a seizure and was, instead, conscious.” Indeed, the jury 

could reasonably have concluded defendant was conscious.

But if the prosecution’s counter to the unconsciousness claim were to be based on 

“some sort of mental break” as described by the Attorney General, the evidence 

supporting the theory would have been quite weak. We have discussed at length the 

absence of the evidence suggesting defendant was paranoid, frustrated, overwhelmed, 

and highly anxious, and the weakness of the evidence suggesting she was hallucinating 

spirits, shadows, or demons during the relevant time periods. That evidence becomes 

markedly weaker without Dr. Vickers’ testimony providing context to connect the 

evidence to a possible mental condition, and the psychological records providing 

necessary credibility to otherwise weak and inconsistent evidence. 

The Attorney General contends that, even in the absence of the inadmissible 

testimony, Dr. Vickers would have been permitted to testify as an expert in child abuse 

and neglect that crying from an inconsolable child can make a parent frustrated and 

possibly violent. He argues that Dr. Vickers would have testified that 70 percent of 

mothers with colicky infants experience explicit aggressive thoughts toward their infants, 

and 26 percent of those mothers have infanticidal thoughts during the colicky episode. 

We do not necessarily agree with that assertion. There was no evidence Mirabelle 

suffered from colic, which renders the evidence of aggressive tendencies of mothers of 

colicky babies irrelevant. Further, here there is little to no evidence that defendant was 
68

frustrated with Mirabelle’s crying, or even that Mirabelle was crying inconsolably or 

incessantly at any point during the relevant time period.

The Attorney General also asserts that Dr. Vickers would have been entitled to 

testify that one risk factor associated with infanticide is mental illness in general. But 

again, before introducing that testimony, the prosecutor would be required to demonstrate 

that defendant suffered from mental illness to establish its relevance. It is undisputed that 

defendant was never diagnosed with mental illness before the killing, and no witness, 

expert or otherwise, testified that she was mentally ill. The evidence of defendant’s 

discussion of demons and spirits with her husband, about which the record is confused to 

say the least, her vague statement to the CPS worker about a shadow, and her statements 

to Kao, Va, and Choua were as likely to demonstrate defendant’s spiritual or superstitious 

beliefs and her culturally-based tendency to attribute her epilepsy and resulting seizures 

to outside or supernatural forces as they were to demonstrate that defendant was suffering 

from mental illness. 

The Attorney General further contends that it is reasonably likely the jury found 

defendant not credible after watching hours of her videotaped interviews with law 

enforcement, and that the jury could have concluded her statements to first responders 

and law enforcement evidenced a consciousness of guilt. Alternatively, the Attorney 

General posits that defendant might have put Mirabelle in the microwave to warm her up, 

pointing to testimony that defendant thought Mirabelle felt cold that day, and she thought 

warming the baby up would get her to stop crying. 

Again, we do not disagree that there may be explanations for defendant’s conduct 

other than postpartum psychosis or an epileptic seizure. But it is our task to assess the 

relative strength of the prosecution’s case for a conscious killing of Mirabelle absent the 

erroneously admitted evidence. Here, that case is markedly weaker than when bolstered 

by the disputed evidence. However, in order to decide whether it appears reasonably 

likely the jury would have accepted the unconsciousness defense over these alternate 
69

theories of culpability, we next look at any negative synergistic effect of the errors to 

assess the likelihood that the jury relied on the erroneously admitted evidence in reaching 

its decision.

D. Negative Synergistic Effect of the Errors

The prosecution introduced Dr. Vickers’ testimony to prove its theory defendant 

was motivated to kill her daughter due to an undiagnosed postpartum mental disorder. 

As we have discussed, this testimony offered an alternative explanation for the killing, 

both to explain why an otherwise loving mother would commit such a heinous act, and 

indirectly to decrease the likelihood that defendant was unconscious when she killed 

Mirabelle. That evidence was erroneously admitted as the factual basis was deficient and 

the resulting testimony was far more prejudicial than probative, in part due to its reliance 

on defendant’s character traits. 

The factual basis of Dr. Vickers’ testimony was substantially strengthened, 

however, when the trial court permitted the mid-trial introduction of the privileged 

psychological records after having previously excluded them. The psychological records 

provided essential, credible support for Dr. Vickers’ testimony regarding postpartum 

mental disorders, and Dr. Vickers’ testimony provided necessary context for the 

psychological records.29 Thus, there is a strong negative synergistic effect in that the 

erroneous pretrial admission of Dr. Vickers’ testimony regarding postpartum mental 

disorders combined with the erroneous mid-trial admission of the privileged records to 

support the prosecution’s alternative motive theory of postpartum psychosis. 

The prosecutor recognized the relationship between the postpartum mental 

disorder testimony and the psychological records evidence, reminding the jurors in 

29

 As just one example, Dr. Vickers testified that “hearing voices” is a symptom of 

postpartum psychosis that puts a baby at significant risk of injury or death, and the only 

indication that defendant had ever experienced auditory hallucinations came from the 

privileged records. 
70

closing that 41 percent of depressed mothers think about harming their child. In rebuttal, 

the prosecutor referred to studies showing that mothers with “psychiatric issues” are 

especially prone to have thoughts of “killing their child,” and he then read entries from 

defendant’s psychological file while commenting, “[t]hat’s a psychiatric issue,” “[t]hat’s 

a psychiatric issue,” and “[s]ounds like one of those factors related to postpartum 

depression.” These arguments expressly and prejudicially applied defendant’s 

improperly admitted psychological records to Dr. Vickers’ testimony about postpartum 

mental disorders. 

Not only did the psychological records bridge an important gap in the 

prosecution’s motive theory, they also bolstered the prosecution’s weak evidence of 

psychosis. After the jury was informed (during the presentation of the prosecutor’s casein-chief) that defendant had admitted experiencing auditory hallucinations to her 

psychotherapist, her other statements regarding spirits, demons, cemeteries, and ghosts 

became more likely to reflect evidence of psychotic hallucinations rather than merely 

reflecting superstitions or spiritual beliefs. Similarly, evidence of loss of appetite and 

speculation about general irritability and frustration with crying took on elevated 

importance; the records provided the foothold that the prosecutor needed to argue the 

motive theory outlined by Dr. Vickers. The prosecutor took full advantage of that

foothold, as we have described above, relying on the records to trumpet defendant’s 

multiple “psychiatric issues” to the jury during argument and tie those “issues” to the 

statistics presented by Dr. Vickers showing likelihood of maternal violence. 

Moreover, the manner by which the psychological records evidence was admitted 

focused the jury’s attention on the evidence and amplified its importance. The 

introduction of the evidence in the middle of Dr. Resnick’s testimony--after he testified 

that he saw no evidence defendant suffered from any psychiatric symptoms--suggested to 

the jury that Dr. Resnick was either ill-informed, unwilling to consider all of the evidence 

when forming his opinion, or both. In closing, the prosecutor recognized that Dr. 
71

Resnick requested defendant’s psychiatric records, but he did not receive the jail file. He 

also asserted that Dr. Resnick did not care about the psychiatric records, and he 

rhetorically wondered “[h]ow good is his opinion if he doesn’t have all the evidence?” 

The manner in which the evidence was introduced also had the effect of 

discrediting defense counsel by suggesting that she deliberately hid highly relevant 

records from Dr. Resnick and from the jury. The prosecutor highlighted this argument in 

closing as well, asserting that defense counsel “does not want you, the jury, Dr. Resnick 

or Dr. Vickers to consider that she may have had depression, psychosis, frustration, sleep 

and appetite issues.” The prosecutor also used the psychological records to argue that 

defendant showed consciousness of guilt by lying to Dr. Resnick about her hallucinations 

so her epilepsy would be the only way to explain the killing. The effect of the unveiling 

of previously undisclosed evidence during Dr. Resnick’s testimony and confronting him 

with it also occurred before the defense presented any other evidence, including that of its 

own expert on seizure disorders, Dr. Garcia. Dr. Resnick was made to look unprepared 

in a manner that potentially lessened any persuasive impact of his testimony and any 

testimony from defense witnesses who followed him.30

Accordingly, the introduction of the psychological records within the context of 

Dr. Vickers’ testimony served to enhance the likelihood that defendant was psychotic 

while simultaneously discrediting defense counsel, defendant, and her defense. Thus, we 

conclude it is likely the jury relied on the evidence introduced as a result of the errors. 

30

 At the hearing on defendant’s motion for mistrial following Dr. Resnick’s testimony, 

the trial court indicated that it “underst[ood] the concern” about “the jury wondering 

possibly about the timing of the records and why Dr. Resnick had not seen the records 

before” and “encourage[d]” the lawyers to prepare a stipulation resolving the concerns. It 

appears a stipulation was reached regarding certain dates and provided to the jury 

together with additional stipulations at the close of evidence, but neither party argues on 

appeal that the stipulation mitigated the prejudice in any way and after reviewing the 

stipulation we see no reason to believe that it did.
72

E. Miscarriage of Justice and Deprivation of a Fair Trial 

As we have explained above, the defense of unconsciousness was supported and 

could have been accepted by the jury absent the errors we have described. Further, the 

prosecutor’s remaining theories explaining the conscious killing of Mirabelle absent the 

errors were weak. The alternative theory that defendant suffered some other kind of 

psychotic break is substantially less persuasive than the postpartum disorder theory, as 

erroneously admitted. It is reasonably likely at least one member of the jury would have 

accepted the unconsciousness defense over the weaker psychotic break theory or any of 

the lesser theories suggested by the Attorney General, but for the errors and the cascade 

of resulting effects we have described. Finally, as we have just explained, there was a 

negative synergistic effect to the errors, making it highly likely that the jury relied on the 

errors in rejecting the defense of unconscious killing and embracing the theory of 

postpartum psychosis. 

This case was centered on a killing that seemingly could be explained only in 

terms of implausible theories, such as postpartum psychosis, automatisms caused by 

epilepsy, a sudden psychotic break, or some other inexplicable and sudden change in 

behavior. Vastly and unfairly increasing the likelihood of one implausible theory made it 

inherently less likely that a different implausible theory best explained the killing. The 

evidentiary errors, taken together, fundamentally affected the outcome of the trial, and it 

is reasonably probable the jury would have reached a result more favorable to defendant 

in their absence. Based on the foregoing, we conclude that the evidentiary errors 

constituted cumulative prejudicial error, resulting in a miscarriage of justice and 

depriving defendant of a fair trial. This conclusion requires that we reverse the judgment. 
73

DISPOSITION

The judgment is reversed.

 /s/

Duarte, Acting P. J.

We concur:

 /s/

Hoch, J.

 /s/

Renner, J.