1

Filed 1/20/21 P . v. Krueger CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. SARA LYNN KRUEGER, Defendant and Appellant. A152087

(Napa County Super. Ct. No. CR169462)

Three

- year

- old Kayleigh Slusher was so badly beaten that her small intestine ruptured. She died from the resulting sepsis. A jury found her mother, Sara Lynn Krueger, guilty of murder with the special circumstance of torture as well as assault resulting in the death of a child under eight years old. A separate jury found Ryan Scott Warner, who lived with Kayleigh and Krueger, guilty of the same charges. 1 On appeal, Krueger argues that

the trial cour t erred in denying her Batson/Wheeler 2 challenge to the prosecutor’s exercise of a peremptory challenge; that the prosecution’s use of a refrigerator and a mannequin as demonstrative evidence deprived her of a fair trial; that the trial court’s response t o a jury question allowed the jury to

1 We address Warner’s appeal of his convictions in an opinion issued this day. ( People v. Warner ( Jan. 20 , 202 1 , A152049) [nonpub. opn.]).

2 Batson v. Kentucky (1986) 476 U.S. 79 ( Batson ) and People v. Wheeler (1978) 22 Cal.3d 258 ( Wheeler )

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improperly find the special circumstance true; and that the record does not contain substantial evidence of elements required to support the verdict. We

conclude that the record does not contain substantial evidence t o support the finding that Krueger acted with the intent to kill, and therefore we reverse the special circumstance finding and remand for resentencing. We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

A. Charges

In November 2015, the Napa County District Attorney filed an information charging Krueger and Warner with two counts: murder, with the special circumstance of torture (Pen. Code, 3 §§ 187, subd. (a), 190.2, subd. (a)(18); count 1), and assault resulting in d eath of a child under eight years old ( § 273ab, subd. (a); 4 count 2). The prosecution did not seek the death penalty. The case was prosecuted under the theory that the murder was by torture and that Krueger directly committed the crimes, or aided and abetted Warner in committing them. The cases against Krueger and Warner were tried to separate juries in the spring of 201 7. Both juries were in attendance for the presentation of most of the evidence, but the juries heard separate

3 All undesignated statutory references are to the Penal Code.

4 Section 273ab, subdivision (a) provides: “Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable pers on would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187

. ”3

opening statements and closing arguments, and received separate jury

instructions. 5

B. Prosecution Case

1. February 1, 2014: Kayleigh’s B ody is Found Warner’s friend Antonio Valdez testified that for about two days, starting on the afternoon of January 30, 2014, he received texts and calls from Warner, who claimed to need his help for an unspecified emergency. At

about 12:30 on the mornin g of February 1, Valdez and his brother drove to Krueger’s apartment complex and met with Krueger and Warner. Warner said that Kayleigh had drunk poison or bleach and was dead. Valdez did not want to be involved. He became angry and told them to call th e police. Warner said they were about to discuss doing that. Valdez left, and later contacted Warner, asking whether he had called the police. Warner again told him that they were going to discuss doing that. After a few hours,

Valdez realized that War ner was not going to call the police, so he called

them himself. In the early afternoon of February 1, Napa Police Officer Robert Chambers went to Krueger’s apartment in response to a telephone tip. He obtained a key, entered the apartment, which was f illed with a smoky haze, and discovered Kayleigh’s body in her bed under blankets. Only her face was visible; it looked bruised, and there was blood coming from her nostrils. It appeared that Kayleigh had been dead for some time, and her skin was “ice

co ld.”

5 Krueger’s jury was sworn on April 20, 2017, heard opening statements on May 1, heard testimony and viewed evidence from May 2 through 22, was instructed and heard closing arguments on May 24, began deliberations on the afternoon of May 24, and reached its verdict on May 25.4

The forensic specialist who processed the crime scene testified that the apartment was dark, dirty, disorganized, and smelled strongly of marijuana. The curtains and shades were closed, and extra fabric around the windows had been taped to the wal l. There were three latex gloves on the floor. In the kitchen there were dirty dishes in the sink, empty food containers, and containers of partly

- eaten food. The freezer itself was empty of food, and its shelving unit had been removed. A later search of the apartment revealed paraphernalia related to the use of marijuana and methamphetamine. The coroner’s investigator who examined Kayleigh’s body in the apartment testified that there were bruises all over the body and that the pattern of lividity wa s inconsistent with the body’s position. If Kayleigh had been in that position at the time of death, the lividity would have been on the back of her body; instead, it was on the right side in the front. 6 An attempt by police to “ping” Krueger’s cell p hone to locate her that day was unsuccessful, indicating that her phone was turned off.

2. Before June 2013: Krueger’s Relationships with Warner and with Jason Slusher Krueger testified that she and Warner met during the summer of 2005, when she was 15 and he was 17; she fell in love with him; they used methamphetamine together; and they had a brief relationship until Warner moved away at the end of the summer.

6 The investigator explained that once the heart stops beating, gravity takes the blood to the bottom of the body, and that Kayleigh’s body was found on its back with the legs bent slightly to the right, with one arm a cross the abdomen and the other by her side.5

When K rueger was 16, she met Jason Slusher (Jason) 7 at a “drug house,” where people got together to use drugs. They became intimate, and when Krueger was 17 she moved in with Jason and his parents and lived with them for a couple of years. Later, Jason and Kr ueger got their own apartment, where they were living when their daughter Kayleigh was born in May 2010. Jason’s mother testified that both Krueger and Jason had short tempers. They would argue often, with violence on both sides. One time Krueger hit Ja son in the head with a two

- by

- four, and Jason responded by slamming the car door on Krueger’s arm. Krueger’s friend Allen Epperson, who spent time with Krueger and Jason, saw them arguing and recalled a time when Jason threw something at Krueger, who then pulled a knife out at

him. In 2012, Krueger and Kayleigh moved to a new apartment in the same complex where she and Jason had lived. The apartment measured 585 square feet, and had two bedrooms, one for Krueger and one for Kayleigh. At some point Jas on moved back in with them, but Jason and Krueger broke up, and in June 2013 Krueger called the police because Jason was stalking and harassing her. Jason was eventually arrested and sentenced to prison for violating parole. Krueger and Warner had reco nnected on Facebook in the summer of 2011. She and Jason were sometimes seeing each other and sometimes not; she would text with Warner when she and Jason were “off,” but not when she and Jason were back together.

F riends, family members, and neighbors testified that for the first three years of Kayleigh’s life, she was a happy and healthy child, and

7 We use first names to refer to individuals who share the last name “Slusher.”6

Krueger was attentive to her. Krueger took her to the doctor regularly and

facilitated her relationships with members of Jason’s family, as well as her

ow n. 3. Summer 2013: Warner Moves in with Krueger and Kayleigh In the summer of 2013, Justin Kent stayed in Krueger’s apartment a few nights a week. He testified that initially Krueger was attentive to Kayleigh and there was no drug use in the apar tment. But about a month after Kent started staying with Krueger, Warner moved in and things began to change. Soon Warner, Kent and Krueger were using methamphetamine and marijuana in Krueger’s bedroom while Kayleigh watched TV or played in

another room. Warner and Krueger were in a romantic relationship, and Kent believed that Krueger had more affection for Warner than he had for

her

— Warner did not label them as a couple. Kent moved out after a disagreement with Warner.

4. Fall 2013 through January 2014: Changes in Krueger and Kayleigh Robin Slusher, Kayleigh’s paternal grandmother, testified that she was very much involved in Kayleigh’s life until about Halloween of 2013, when a new pattern developed: Robin would ask to see Kayleigh and Krueger would not allow it saying that Kayleigh w as sick, or Krueger would cancel a planned get

- together, saying Kayleigh was sick. Robin attempted to see Kayleigh at Thanksgiving, but Krueger told her Kayleigh was sick.

In mid

- December 2013, Krueger told Robin that Kayleigh was sick and

asked Robin to bring Pedialyte and popsicles to the apartment, which Robin did, but Krueger did not permit Robin to enter the apartment or see Kayleigh. Robin saw Kayleigh at Robin’s house for about 45 minutes on Christmas day, and noticed that she had dark circles u nder her eyes.7

In mid

- January 2014, Robin took Krueger and Kayleigh to a movie. 8 Robin noticed that Kayleigh had a bruise that covered almost her entire cheek. Krueger told her that Kayleigh had bumped heads with Krueger’s friend, and that although t he friend had been crying, Kayleigh said, “Don’t cry. It’s not a big deal.” After the movie, Kayleigh “burst into tears” because she didn’t want the movie to be over. When they got in the car for Robin to drive them home, Kayleigh said she wanted to go to her grandparents’ house, and she cried when Krueger said no. During the third week of January, Krueger told Robin that Kayleigh was sick, and Robin went to the apartment with food to settle Kayleigh’s stomach. Once again, Krueger did not allow Robin to enter the apartment or see Kayleigh. On January 29, Robin asked the police to conduct a welfare check on Kayleigh. On January 31, Robin texted Krueger and asked if Kayleigh could join her for a family lunch. Krueger responded by text that they were going to Santa Cruz for the weekend. Jennifer Slusher, Kayleigh’s aunt, testified that she had spent a great deal of time with Robin, Kayleigh, and her own children from the time Kayleigh was born until about three months before her death. During that

three

- month period Jennifer tried several times to arrange for Kayleigh to get together with her children, but Krueger would not allow Kayleigh to visit. Sophia Grech, Krueger’s sister, often visited the apartment that Krueger shared with Kayleigh. She testified that Krueger had been “an amazing mother,” who “would play with [Kayleigh] and make sure she was taken care of.” But things changed after Warner started living there. Krueger seemed unhappy. Once, Krueger’s finger or hand was broken, and

8 In the remainder of this opinion, dates are in 2014 unless otherwise stated

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Krue ger told her she had slammed it in a door. It began to seem to Grech that Krueger was paying attention to Warner, but not to Kayleigh, who would be in a different room of the house. Weeks before Kayleigh’s death, Krueger admitted to Grech that she was us ing methamphetamine. Around Christmas 2013, Grech noticed a bruise about 3 inches in diameter on Kayleigh’s lower back. When she asked Krueger about it, Krueger said that Warner had told her that they were playing with Kayleigh’s bike and that she fell . About a month before Kayleigh died, Kayleigh became quieter. And in that month, Grech spent less time at the apartment, but about two or three weeks before Kayleigh died, Grech walked into Krueger’s bedroom and saw her using methamphetamine. The last time Grech saw Kayleigh was about a week before Kayleigh died; Kayleigh was coloring at the kitchen table with no one else in the room. Grech tried to call Krueger several times in December 2013 and January 2014, but failed to

reach her: when Grech calle d, Warner would answer the phone and hang up

on her when she said “hello.” Krueger’s friend Amanda Patterson would get together daily with Krueger and Kayleigh. Before Warner came to live with Krueger, neither Krueger nor Patterson was using drugs, tho ugh they had used them in the past. After Warner moved in with Krueger, the women went back to using drugs, sometimes with Warner and sometimes without him. At first, they used methamphetamine just on the weekend, but then on an almost daily

basis. Patt erson told an investigator that when Krueger came down from methamphetamine, she would get irritable, upset, or angry. Patterson testified that after Warner moved in, Krueger “stepped back as a mom” and let Warner do “fatherly things,” including taking K ayleigh to the bathroom, making meals for her, and feeding her. One time when9

Patterson and Krueger were present, Kayleigh was sitting in her highchair, said she was full, and then threw up. Warner responded by telling Kayleigh she needed to stay in the chair until she was done eating. Warner would discipline Kayleigh by lecturing her and putting her in time outs that lasted from a couple of minutes to 20 or 30 minutes. Patterson observed that after Warner moved in, Kayleigh cried more,

became scared to go to the bathroom, and started having a hard time moving

her bowels. 9 A few weeks before Kayleigh died, Patterson noticed bruises on Kayleigh, including a bruise on her chin and neck. Warner told her that Kayleigh fell and hit her chin in the bathtu b; Krueger told her that Kayleigh had tripped over the clothes hamper in the bathroom. Starting about a month before Kayleigh died, Patterson noticed that Kayleigh was often sick and throwing up and looked tired. Krueger described her relationship with Warner to Patterson as complicated, as though “they were together but not together,” even though Krueger cared for Warner. Patterson thought Krueger might have been infatuated with Warner, but based on his behavior, she did not think he was

infatuated wi th Krueger. Patterson was not aware of Warner ever hitting Krueger but observed him verbally abusing her. Patterson characterized Warner’s behavior as “controlling.” Warner frightened Patterson once when he and Kent woke her in the middle of the night, with Warner sitting on the end of her bed saying he could tell her things that would scare her.

9 Kent had testified that when he started staying at the apartment, Krueger was toilet training Kayleigh. The training was going well when Warner first arrived, but Warner made her sit on the toilet until she relieved herself, sometimes as long as half an h our. Sometimes Kayleigh asked for her mother; even though Krueger was present, Warner would go into the bathroom and tell Kayleigh she had to use the toilet before she could get up.10

S everal of Krueger’s neighbors in the apartment complex testified that after Warner moved into Krueger’s apartment, they saw Kayleigh playing

outside less of

ten than they had before; when they did see her, she was often alone, while in the past Krueger had been with her. Neighbors also testified that Kayleigh had bruises in the last months of her life, and that she looked pale, acted subdued, and had a black eye in the weeks before her body was

found. Neighbors offered other testimony as well. Breann Abernathy, a medical assistant who lived in the apartment next to Krueger’s at the time of Kayleigh’s death, testified that after Warner moved in with Krueger , she heard yelling, arguments, and screaming from Krueger’s apartment. Abernathy also recalled Krueger going to the doctor for whom Abernathy worked to get treatment for a hand injury, and telling Abernathy that she

hurt her hand when she and Warner were moving furniture at 3:00 in the morning and her hand was slammed against the wall. One night about a week before Kayleigh died, Abernathy was awakened by what she thought was something being thrown against the wall in Krueger’s apartment.

Mandi Farr t estified that at about 3:30 one morning, Farr and her boyfriend were awakened by Krueger and Warner knocking on the door, asking the boyfriend to drive Krueger to the emergency room and Farr to watch Kayleigh. Krueger appeared to be in pain; she said her fingers had been slammed in a door. Farr understood that Krueger and Warner were in an argument and Warner slammed her hand in the door. When Warner later came to pick Kayleigh up, Kayleigh held on to Farr’s neck, saying “no, no, no, no.” When Kayleigh realized that Krueger was there with Warner, she let Warner pick her up and they left.11

Alejandra Fermin Cisneros lived in an apartment next door to Krueger’s; the apartments shared common bedroom walls, and Kayleigh’s bedroom shared a wall with Fermin Cisneros’s. When Krueger and Kayleigh first moved in, Fermin Cisneros would hear them laug hing and playing in Kayleigh’s bedroom. After Warner moved in, she no longer heard laughter and playing through the wall. About three times in the two weeks before Kayleigh’s death, Fermin Cisneros was awakened in the middle of the night by the slamming of a door in Krueger’s apartment. She testified that after she heard the door slam she would hear Krueger or Warner screaming at Kayleigh to be quiet. She “would hear [Krueger] hitting her and then coming

out

– getting outside of the room, because you ca n clearly hear that they would slam the doors. And after that, [Warner] I believe would come in and he would say, ‘Didn’t you hear your mom to tell you to be quiet,’ or ‘shut up.’ I can’t remember exactly what word he used. And

— well, that’s what I would hear, that they would hit her, yes.” She did not recall each occasion in detail, but she recalled that one night Krueger yelled at Kayleigh to be quiet or she would hit her, she heard Krueger hitting Kayleigh, and she heard Warner yelling at Kayleigh. A fter Krueger and Warner left the room, she would hear Kayleigh breathing heavily. On two of the occasions, Fermin Cisneros knocked on the wall and said Kayleigh’s name. She thought Kayleigh

knocked back the first time.

5. Police Visits to Krueger’s Apartment in Late January On January 27 at about 9:40 a.m., Officer Chambers responded to a report of a loud disturbance in Krueger’s apartment. Krueger answered the door, upset and crying; before Chambers could explain why he was there, she

asked whethe r it was illegal to argue. Chambers explained that someone had reported a loud argument in her apartment, and he wanted to make sure12

everyone was okay. Chambers was inside the apartment for about five minutes, and while he was there, he saw Kayleigh, who sat on Krueger’s lap. Chambers observed Kayleigh to seem happy, and she asked him about his uniform. Krueger said she and Warner had been arguing over money and that she had slammed a door a couple of times. She said she did not need police assistance, and Chambers did not notice signs of domestic violence. Warner was in the apartment when Chambers arrived; while Chambers was talking with Krueger, Warner was outside talking with an officer who had accompanied Chambers. On January 29, at about 8:30 p .m., Napa Police Officer Garrett Wade went to Krueger’s apartment to conduct a welfare check for Kayleigh that had been requested by Robin, Kayleigh’s grandmother, who had expressed concern that Kayleigh wasn’t being adequately fed and that Krueger was

usi ng drugs. When Krueger answered the door, Wade explained he was there for a welfare check and asked to come in. Krueger initially said no and closed the door so that just her head and upper body were outside the door. Wade then asked Krueger to call Kay leigh to the door, which Krueger did. Krueger lifted Kayleigh, who was wearing pajamas, to her hip and stepped outside the door; the only part of Kayleigh’s body that Wade could see was her face. He noticed two small bruises on the left side of Kayleigh’ s chin and asked Krueger about them. She said Kayleigh had fallen off her bike. While Wade was talking with Krueger he saw Allen Epperson, whom he knew, and Warner walk from the back of the apartment. Wade eventually walked through the apartment, scanni ng it as he went, and did not observe any drugs or contraband or anything that seemed to pose an immediate danger to a child. He saw food on the counter in the kitchen, which appeared moderately clean.13

Wade then spent about 15 minutes with Krueger and Warner, evaluating them for signs of intoxication and interviewing them as they sat on the living room couch a couple of feet apart from each other. Krueger did not appear to be intoxicated. Warner, who showed some signs of intoxication,

admitted that he had taken one of Krueger’s pain pills and smoked marijuana. 10 Warner identified himself to Wade as “Ryan Howard”; Krueger said nothing about his true name. After about 10 minutes focusing on Warner, Wade turned his attention to Krueger. Kayleigh said nothing to Wade during the visit; he thought she said something to Krueger, but he could not hear what it was. A few minutes later, Kayleigh, who was still in Krueger’s arms, vomited. Krueger stood up to leave the room, saying she was going to take care of Kayleigh because she had the flu, and asked Wade to leave, w hich he did.

6. Epperson’s Testimony Epperson had known Krueger for about 10 years. They would use methamphetamine and marijuana together until Krueger got pregnant, at which point she stopped using except for occasionally smoking marijuana. Eppers on regarded Krueger as a sister and Kayleigh as his niece. He had been in and out of jail for the past several years and would spend time with Krueger when he was out. Epperson first met Warner when he went to Krueger’s apartment on January 9 or 10; he hadn’t seen Krueger in about a year before that. He testified the apartment seemed messed up and dirty, and recalled that he had told the police he had never seen Kayleigh looking so pale and not well taken

10 Krueger testified that she had constant pain in her hand for which sh e had been prescribed Percocet and Tramadol, which she took “occasionally.”14

care of, and that Kayleigh told him, “I’m so ha ppy to see you. I don’t like nobody in this house here no more.” Krueger and Warner looked “strung out, like they’d been using,” and Krueger was acting “on edge, moody” as if she was high. She had lost weight since he saw her last. Epperson next went to Krueger’s apartment on January 29, the day of the police welfare check. He recalled that he had told the police that Kayleigh “looked like shit” that day. When he asked about Kayleigh’s bruise, Krueger said Kayleigh had fallen down and bumped her hea d. At some point he went to the refrigerator to get something to eat, but it seemed empty. On January 29, Epperson, Krueger and Warner smoked methamphetamine in the bedroom with the door closed while Kayleigh was in the living room watching cartoons. Before the police came, Krueger had gone to check on Kayleigh, and found her in the bathroom drinking something that might have had tobacco in it. Krueger started yelling, asking Warner where her cell phone was so she could call poison control, and then

w ent into the kitchen slamming things. When Epperson went out into the living room, Krueger was trying to get Kayleigh to drink water and throw up; Krueger said that poison control told her to do that. Epperson was under the impression she had called pois on control. Epperson left the apartment after the police welfare check that evening. At some point before he left, Krueger gave him a Percocet. The next day, January 30, at about 1:50 p.m. he texted Krueger asking for more Percocet but got no response . He texted her again on January 31 at about 10:30 a.m. and got a response saying, “Hey, my bad, we bounced out of town for a min. After what happened the other night we just had to get away.” During one of Epperson’s January 2014 visits to the apartm ent, Warner admitted that he was with Krueger just to get a place to live.15

7. Flight and Arrest Sometime after 9:00 a.m. on February 1, a neighbor saw Krueger and Warner leaving Krueger’s apartment with luggage. 11 Around noon that day, Antonio Vasquez was at a Home Depot waiting for work and noticed Krueger asking for a ride. Warner was with her, but about 20 feet away. Krueger, who did not seem upset, asked Vasquez for a ride to the bus station in Vallejo, tellin g him that she had a children’s video game she would give him in exchange for the ride. He agreed to give her a ride, and she called to Warner. They had a suitcase

- like bag with them. The

drive took 20

- 25 minutes, during which no one spoke. Neither Kru eger nor Warner appeared to be upset. On the morning of February 2, Silvia Melendez was sitting in the lobby of a restaurant when she looked at a news story on her cell phone about the police looking for two suspects in connection with the death of a li ttle girl. The story included pictures of Krueger and Warner. A woman and man then

entered the restaurant. Melendez noticed that the man looked like the person in the photo, and started looking at the story again, at which point she saw that the woman, who had sat down next to her, was looking down at Melendez’s cell phone. The woman then got up quickly and spoke with the man, and the two left immediately. Later that morning, BART Police Officer Boutain received an alert describing two people who wer e wanted for murder by the Napa police department and who were last seen at a restaurant across from the station where Boutain was located. Boutain canvassed the BART station, saw Krueger and Warner, and asked if they needed help. Krueger started crying

11 Warner was carrying a red and black “hand pack.” The bag was never found.16

and said she needed to talk to the Napa police about something bad that had happened there. Krueger and Warner were then arrested. Warner had his cell phone in his pocket when he was arrested. In the phone case there was a receipt from Target for the purchase of ice cream on January 31 at about 3:15 p.m. Krueger’s cell phone was in her purse, as were state benefits cards for Krueger and Kayleigh. Blood drawn from Krueger and Warner on the afternoon of February 2 tested negative for the presence of m ethamphetamine and positive for marijuana. A toxicologist testified that methamphetamine is on average undetectable three to four days after ingestion.

8. Krueger’s Interview with Detective Hess Andrew Hess, the lead detective on the investigation of Kayleigh’s death, interviewed Krueger in two parts on February 2, after she was arrested and taken back to Napa. 12 The interview began with Hess asking Krueger what had happened to Kayleigh. Krueger said that on the night of January 29, Kayleigh starte d vomiting after she drank from a measuring cup. The cup had contained two squirts of Windex and dirty water that Warner said he had used to clean a tobacco pipe; Krueger could see tobacco in the sink, and Kayleigh told Krueger she poured out what was in the cup and then filled it up with water because she was thirsty. 13 At the time, Krueger, Warner, and Epperson were

12 As part of the prosecution case, the jury was shown a videotape of the first part of the intervie w and given transcripts to follow along. As part of the cross

- examination of Krueger, who testified in her own defense, the jury was shown videotapes of both parts of the interview and given transcripts. We summarize both parts here.

13 Krueger told poli ce that she had put the measuring cup on the stove. The parties stipulated that a measuring cup found in the kitchen of Krueger’s17

at the apartment. Krueger thought Kayleigh had swallowed tobacco, which made her sick. Kayleigh vomited quite a few times, over a period of hours. Asked why she didn’t call the paramedics when Kayleigh was vomiting, Krueger said that it was because she and Warner had been using drugs. At the time Kayleigh drank the liquid, Krueger was “coming back” to her senses after using methamphetamine, and want ed to call poison control, but Warner told her that Kayleigh was throwing up, which is what she needed to do. They thought she had thrown up whatever she had drunk. When Kayleigh stopped throwing up, she was put to bed, and Krueger

went to bed as well. When Krueger awoke, on the afternoon of Thursday, January 30, she found Kayleigh on the bathroom floor and thought she was sleeping. Kayleigh had apparently taken off her zip

- up pajamas, which she could do by herself. Krueger went to wake her up, but K ayleigh was stiff. Krueger told Hess she wanted to call the police when she found Kayleigh’s body, but Warner said the police wouldn’t believe them. So Krueger told Warner to leave, and that she would call the police. Even though she had a phone and c ould have called, she didn’t because she was scared. Krueger said that after she found Kayleigh, she held her and then put her in her bed wrapped in blankets. For the rest of Thursday afternoon and Friday, she would go in and out of Kayleigh’s room. W arner said he didn’t want to go to jail for something he didn’t do, and Krueger told him to leave and run so she could call the police. Warner spent time on Friday making phone calls. On Friday night, two people came to the house, including one of

Warn er’s friends, who Krueger knew to be a high

- ranking gang member and

apartment bo re Warner’s fingerprint, and DNA consistent with Kayleigh and Warner.18

who terrified her, and the friend’s brother. Warner had asked them to get Warner and Krueger out of there. Warner and Krueger told the men what happened, and the friend said they should have called the police. Warner took the men into Kayleigh’s room, while Krueger remained in the kitchen. The men told Warner and Krueger to call the police, which they did not do. At about 1:00 or 2:00 on Saturday morning, after the men left, Krueger said she was going to call the police, and Warner put Kayleigh’s body in the freezer to preserve evidence. Krueger said she may have passed out, and that Kayleigh’s body was in the freezer for about three hours before she took it out and put it back in be d with blankets, a pillow and a toy. Krueger and Warner then fell asleep for a couple of hours, and when they awoke they decided they had to leave. At about 9:30 or 10:00 a.m. on Saturday, they left the apartment and walked to a nearby Game Stop, where they tried to sell a PlayStation 3. Later they sold it to someone at Home Depot to get a ride to Vallejo, where they got on a bus, which they took to a BART station. They then went to San Francisco and walked around, and they went to a church to pray an d have the pastor help them call the police, but the church was closed, so they went to the airport, where they stayed the night. On Sunday morning, they took BART back to the station where they had boarded and went to a restaurant because Warner was hung ry. She turned her phone on just one time. Krueger told Hess she hadn’t used drugs in days, except for some marijuana. She said she had a problem with methamphetamine long before she had Kayleigh, but she stopped using when she learned she was pregnant and didn’t use again until Warner came into h er life in 2013, at which point they were using almost every day or every other day. Kayleigh would watch a movie when they used.19

When asked about bruising on Kayleigh that neighbors had noted about a week before, Krueger said Kayleigh had fallen off h er bike, and had just a little bruise. Krueger also said that at one point Kayleigh had a black eye; Warner told her that he and Kayleigh had bumped heads when Kayleigh jumped up to give him a hug, resulting in a black eye for Kayleigh and a swollen eyebr ow for him. Krueger was not present when it happened but had no reason not to believe it. Also, Kayleigh had the flu about two weeks before

she died. Krueger said she and Warner had been together since August and although her own relationship with War ner was “complicated,” he was good to Kayleigh, and the two of them were close. He helped with Kayleigh’s toilet training and taught her letters and numbers. Kayleigh was smart, friendly and outgoing, and used to ask Krueger if Warner could be her dad. In response to Hess’s remark that people told him Kayleigh’s demeanor had changed since Warner was around, Krueger told Hess that Kayleigh missed her father and was often nervous but perked up around Warner. Krueger said she never saw Warner put his hands on Kayleigh, and Kayleigh never said anything to Krueger about Warner doing anything to her. In the second part of the interview, Hess asked who had given Kayleigh baths, and whether Krueger had noticed bruises when she bathed her. Krueger said that bo th she and Warner had given Kayleigh bath s. Kayleigh bruised easily, and she sometimes noticed bruises, mostly on Kayleigh’s

knees or elbows. Krueger said that sometimes Warner would be alone with Kayleigh, for example when she went to the store.

Aske d how they put Kayleigh in the freezer, Krueger answered that Warner folded her legs, put her in a plastic garbage bag and then a suitcase, and put the suitcase in the freezer, which had no food in it.20

Krueger said she promised the men who came to the a partment early Saturday morning that she would call the police, but she didn’t. Krueger said she was afraid to call the police because Warner told her that if he went to jail, the men would come for her. She also said that Warner had her phone

most of th e time, but she turned on her phone once and saw that she had a lot of text messages and knew that the police would be coming. Krueger said that when Warner got angry he would yell a lot, but generally not get physical, except that once he got angry and slammed a door on her hand; she didn’t know if he had done it on purpose. When Warner was on methamphetamine, he would be up for days and his temper would be

much shorter. As far as Krueger knew, Warner was good to Kayleigh. He spanked Kayleigh with an open hand a couple of times on her bottom; Krueger told him not to do that anymore and Warner said he wouldn’t. During the last couple of weeks of Kayleigh’s life, Kayleigh and Warner got along very well together

— she would sit on the couch with him and hug him. Sometimes he would get angry with Kayleigh because he thought “she was holding in her poop.” At first Krueger thought it was strange that he would take Kayleigh to the bathroom, but she was okay with it because she would hear Kayleigh

tell Warn er that she loved him and say that she wished he was her dad. Hess left the room for a time; when he returned, he said he had been talking with Warner and had some more questions for her. He asked about Krueger trying to give Kayleigh popsicles after s he was sick to make her better. He asked if she had hit her, and Krueger said she had raised her voice at Kayleigh to get her to eat them but did not touch her. She said she spanked Kayleigh in the past, a long time ago, but apart from that never put

her hand on her.21

He asked about going out for ice cream. Krueger said that Warner wanted to get ice cream, but she couldn’t eat it; Warner ate most of it. They also got cigarettes, and she smoked to calm her nerves. When she found Kayleigh dead, she s aw bruising on her buttocks or “red butt” from Warner spanking her. She also saw bruises on Kayleigh’s

back that Warner said were “from the red butt.” She said she saw only a few tiny bruises, and she didn’t see any on Kayleigh’s stomach. When she saw

K ayleigh dead, her first thought was that “she didn’t pour out the water,” that she “drank that stuff and we poisoned her.”

9. Medical Experts Two medical experts testified for the prosecution, forensic pathologist Dr. Joseph Cohen, who performed the autopsy on Kayleigh on February 3,

and Dr. James Crawford

- Jakubiak, a child abuse pediatrician, who had reviewed Kayleigh’s medical records as well as documents, photographs and

x

- rays from the autopsy. Kayleigh was 41 inches tall and weighed 34 pounds. Dr. Cohen identified 41 external injuries on the body, which appeared to have been made within hours to two or three days before death. 14 There w ere numerous blunt force injuries to the front and back of the torso, reflected in small and large bruises, mostly on the abdomen, but also on the back and buttocks. Dr. Cohen counted 8 to 15 individual bruises to the abdomen, indicating 8 to 15

individua l impacts. There were also external injuries to the extremities, i.e., the arms, forearms, thighs, legs and knees, as well as injuries to her head,

14 Some of Kayleigh’s injuries, including a healed broken rib, occurred a few weeks before death. Dr. Crawford

- Jakubiak testified that the broken rib would have caused Kayleigh pain, including when she moved, and that given her age, Kayleigh would have communicated the nature of the injury.22

which were reflected in bruises on her forehead, cheek and under her chin, and internal injuries to her sca lp, one corresponding to the bruise on her forehead, and one on her temple. Dr. Cohen testified that moderate force would have been required to inflict the injury to the head that resulted in interior bruising, and that

“moderate to severe” force would have been required to inflict the other external injuries that he observed. None of the injuries to the abdomen would have resulted from a spanking. Nor were the injuries to the buttocks, back, or thighs caused by a “typical” spanking. Dr. Crawford

- Jaku biak opined that the extent of injuries on Kayleigh’s body was far beyond what would commonly be suffered by a three

- and

- a

- half

- year

- old in the course of her life, and were caused by repeated episodes of major blunt force trauma. The injuries were consist ent with beating, not with spanking or falling from a

bike. Dr. Cohen noted that the skin over the entire abdomen was green, a sign of infection. When he opened the abdominal cavity, about two cups of liquid poured out, consisting of blood and intestinal contents. The source of the liquid was a rupture in the wal l of the small intestine in the middle of a

12

- inch segment of the intestine that was necrotic (i.e., dead or dying). In addition to the injury to the intestine, Dr. Cohen observed blunt force injury to the mesentery, which is the tissue that holds the in testine in place and is anchored near the spine. Dr. Cohen also found a small recent injury to the front of the spine. He found no evidence of constipation, abdominal disease,

or a spontaneous rupture. The cause of death was abdominal trauma, which ca used a lack of blood flow in the belly, as well as damage to the intestine. As a result of the trauma and lack of blood flow, the intestinal tissue became necrotic. The23

intestine perforated and its contents spilled into the belly, ultimately resulting in shock and death. Dr. Cohen stated that Kayleigh had been abused and neglected. As to neglect, he opined that “it would have been very clear that Kayleigh was in harm’s way after receiving the lethal injury, that the lethal injury if treated early would have resulted in survival through surgical excision of that dead portion of small intestine.” Neglect was also reflected in Kayleigh being dehydrated and slightly malnourished. Dr.

Crawford

- Jakubiak noted that from just after her birth until just after h er third birthday, Kayleigh went to the doctor frequently and Krueger often called the nurses for small problems. On a couple of occasions, Krueger sought care for Kayleigh when Kayleigh was vomiting. Kayleigh’s history of medical care abruptly stopped i n June 2013. Dr. Cohen testified that after suffering a blow to the abdomen that resulted in the injuries he observed in Kayleigh, a child would have cried and would have suffered discomfort, pain, nausea, vomiting, and loss of appetite. The symptoms w ould have progressed over time to unconsciousness and

death. Dr. Crawford

- Jakubiak testified that the fatal injury to her abdomen would have been very painful and Kayleigh would have cried, probably vomited, and expressed what happened in words. As the i njury progressed and the bowel died, Kayleigh would have vomited, could have passed blood from her anus, and would have experienced great pain for an extended period

of time until she lost consciousness.

Dr. Cohen testified that a “substantial” amount o f force would have been required to injure her spine, and a “severe” amount of force would have been required for the fatal injury, and in each case the force came from blows to the front of the body. He could not be certain how many impacts caused

the in juries; it could have been one or two or more.24

Neither Dr. Cohen nor Dr. Crawford

- Jakubiak could determine exactly when Kayleigh died. Dr. Cohen testified that based on the state of the body’s reactions to the injuries and the fact that the reactions s top at the time of death, he estimated that the fatal injury to the intestine and mesentery was inflicted more than 12 hours before Kayleigh died, and probably 18 to 24 hours up to two or three days. From the necrosis of the bowel and the

amount of fluid in the abdomen, Dr. Crawford

- Jakubiak concluded that the fatal injury occurred at least a day before Kayleigh died, and possibly longer. The experts agreed that, based on the descriptions of Kayleigh’s behavior during the January 27 police visit, when she was active and engaging with people in her environment, and the January 29 visit, when she was quiet and during which she vomited, that the fatal injury occurred between the two

visits. Dr. Cohen noted that an “atypical” lividity pattern on the body

in dicated that it had been moved after death.

10. Police Investigation Investigators obtained, and played for the jury, video footage from Target corresponding to the day and time shown on the receipt found with Warner’s cell phone. Detective Hess not ed that the footage shows Krueger and Warner buying ice cream on January 31 at about 3:00 p.m. and that the container was consistent with one found in Krueger’s apartment. He noted that Krueger was ahead of Warner when they entered and left the store and did not appear to be under duress or upset in the footage. Video surveillance footage from the San Francisco International Airport (SFO), also played for the jury, showed Krueger and Warner on an airport tram at about 11:15 p.m. on February 1. Detectiv e Hess testified that Krueger appeared calm in the video. He noted that the video shows Krueger25

and Warner conversing, and shows Krueger resting her head on Warner’s shoulder and then trying to snuggle with him and shows Krueger laughing or giggling. Hes s stated that she did not cry or act upset; she appeared to be affectionate toward Warner, and did not appear to be afraid of him or under

duress. Krueger’s medical records showed that she was treated for a hand injury on January 9 and told treating per sonnel that the injury was caused by her boyfriend, “Ryan Howard,” who had accidentally slammed her hand in the door. She was also seen for a hand injury on January 10 at a different facility, and she told the treatment team that a friend had accidentally

slammed her hand in the door. Kayleigh’s medical records showed that Krueger had taken Kayleigh to the emergency room about seven times during the first three years of her life, including when Kayleigh had possibly ingested hand sanitizer. Krueger had also taken Kayleigh to nine appointments, and she had two phone appointments. An investigator who examined the computer found in Krueger’s apartment testified that the web browsing history reflected a search for the phrase “stabbing pain next to bellyb utton,” but not the date or time of the search. He also determined that at about 11:00 p.m. on January 29, two video files were accessed or downloaded: Terminator 2, Judgment Day and The Secret Life of Walter Mitty. Another investigator testified that a review of web browsing on Krueger’s phone during January showed a search on January 23, a week before Kayleigh’s death, asking whether vitamin E is good for bruises, and at about the same time frame, searches on how to get rid of bruises now. On

Januar y 24, there were continued searches on the same topics. On January26

25, there was a search for an article to the effect of a woman booked or jailed on suspicion of child abuse. On January 31, after Kayleigh’s death, there were searches for U.S. cities, in cluding a search for U.S. cities with the highest population. Investigators reviewed text messages on Krueger’s phone between Krueger and Robin Slusher. On December 17, 2013, Krueger asked Robin to bring ibuprofen for Kayleigh, as well as some food tha t would be easy on her stomach. Krueger told Robin this was the sickest Kayleigh had been in a long time. When Robin asked about Kayleigh the next day, Krueger said that Kayleigh had a fever of 100.4, down from 102.1. Texting between the two on Kayleigh ’s condition continued through December 20, 2013, when Krueger reported that Kayleigh was still sick and had been throwing up all night.

In mid

- January there was another series of text messages between Krueger and Robin. On January 16, Krueger reported that Kayleigh had a fever and was throwing up. Robin asked about Kayleigh the next day and was told Kayleigh had horrible diarrhea and a fever. Robin checked in again on January 18 and 19; each time, she was told that Kayleigh was still sick.

Robin ask ed to see Kayleigh, but Krueger said no. Robin contacted Krueger by text on January 25 and 26, wanting to see Kayleigh. Krueger did not respond until January 27, when she informed Robin that Kayleigh was very sick and she was waiting for a phone appoin tment with the doctor. When Robin checked in later to find out what the doctor had said, Krueger responded that the doctor said it was a nasty flu season and she should keep Kayleigh inside, give her fluids and monitor her

for 48 hours.27

During these pe riods there was no indication on the phone or in Kayleigh’s medical records that Krueger had sought medical advice regarding Kayleigh. The last text exchange with Robin was on January 31, when Robin asked to see Kayleigh and Krueger responded that they were going to Santa

Cruz. Investigators found that starting on January 30 at about 4:30 p.m. there were 76 outgoing phone calls from Krueger’s cell phone to Valdez, as well as missed incoming calls from Epperson and Robin. There was an outgoing call on January 31 at about 3:00 p.m. to a number that allows recipients of welfare to check the status of their benefits. This call was made just before the purchase of ice cream at Target.

C

. Defense Case In her defense, Krueger called fact witnesses, offered her own testimony, and called an expert witness.

1. Fact W

itnesses Linda Reed testified that from April through June of 2013, Krueger occasionally worked as a substitute at Reed’s daycare center, which Kayleigh attended. Reed thought Krueger was a good mother and asked her to work as a substitute based on seeing Krueger interact with Kayleigh. Krueger’s father, John Krueger (John), testified that when he saw Kayleigh on Christmas Day 2013, she was behaving normally, and that the last time he saw Kayleigh was about a week before she died. After that, at

the end of Janu ary 2014, he tried to see Kayleigh, but was told by Krueger that Kayleigh was sick with the flu. John testified that he and Krueger had a close relationship and used to talk on the phone every day. Their contact became less frequent after28

October 2013. By mid

- January 2014, John was aware that Krueger was using drugs.

2. Krueger’s Testimony Krueger testified that she met Jason at a drug house when she was 16. At that time she had a “problem” with methamphetamine, and they used it together every da y. Later, they used only on weekends. After about five months they became intimate, and when Krueger was 17 she moved in with Jason at his parents’ home. Jason was jealous, and he accused Krueger of cheating on him. The jealousy led to frequent argum ents in which Jason became violent and struck her. He called her names, told her she was worthless, and harassed her when she went to see friends, so she stopped seeing many of them. At 19, Krueger became pregnant, stopped using methamphetamine,

and del ivered Kayleigh in May 2010. Jason was in jail during part of the pregnancy, having been convicted of domestic violence for slamming Krueger’s arm in a car door. On his release from jail, Jason continued using methamphetamine, and when he was coming off a high, he was sometimes violent. In June 2013 he was arrested and sent to prison after he threatened to kill Krueger and kidnap Kayleigh. While Jason was in prison, Krueger reconnected with Warner, with whom she had been acquainted when she was 15. S he invited him to visit, which he did in August 2013. At first Warner was going to stay for just a couple of days, but he ended up moving in with them. Krueger described Warner’s relationship with Kayleigh as “[g]ood, like a stepdad.” Like a good

parent , he played with Kayleigh, helped with toilet training, and seemed very loving. Warner would have Kayleigh sit on the toilet for 15 or 20 minutes to have a bowel movement, and sometimes Krueger and Warner would argue29

because Krueger thought that was too l ong, but Warner told her that Kayleigh “was so backed up and constipated” and that “it was borderline child abuse to let her hold it in all day long” because she would be in so much pain when she finally moved her bowels, and Krueger thought it was better for Kayleigh to sit on the toilet than be in pain. The first day Warner arrived, Krueger resumed her methamphetamine habit with him. They would smoke methamphetamine in Krueger’s bedroom; Kayleigh would play in her bedroom or watch a movie. From the b eginning of December 2013, Krueger was using methamphetamine every day. She would take a “hit” or two of methamphetamine for a “boost,” five or six times a day, and used marijuana to ease the feelings of coming down from the high, sleeping every night or every other night. She agreed that she was high pretty much all the time from Thanksgiving through January. Krueger initially testified that she would buy marijuana, but not methamphetamine. She said that Kent would come over and leave them some, or W arner would trade video games to a friend for drugs. Later, she testified that she would also go to friends’ houses and use there and sometimes they would give her some to take home. Eventually, after reviewing texts she had sent and a transcript of a te lephone call from jail, she admitted that she would spend money on marijuana, which she would trade for methamphetamine with her friends because they gave her a better deal, and that she had bought methamphetamine at least once.

In mid

- December, Krueger learned that there was a warrant for Warner’s arrest. She was present on occasions when he lied to people about his name. Because of the warrant, Warner rarely left the apartment, and Krueger was usually the one to run errands, and she would often leave Kayleigh with Warner. Starting in mid or late December, she and Warner30

would often argue about her wanting to stop using drugs and having them

around. Krueger and Warner had verbal arguments almost daily from mid

December through January. Krueger testified that the arguments would be about getting clean and denied that they concerned the relationship. Although she wanted more from the relationship than Warner was willing to give, they argued about the relationship “maybe two times,” the first of which was in November. Around Christmas, they had their “first big fight” about getting clean, during which Warner threw the Christmas tree over. On January 9 , during another argument about getting clean, Warner slammed her hand in her bedroom door, injuring her badly. She and Warner went to the hospital to have her hand treated, leaving Kayleigh with a neighbor. On the morning of January 27, she and Warner got high. Later, they had an argument: she wanted to get clean, and he didn’t, so she told him to move out. Warner threw an abalone shell against the wall and pushed Krueger against her bedroom door and punched it right next to her face twice, leaving two holes in the door. Warner told her that he would leave only if she had the police remove him, and if she did that, he would have “Antonio [Valdez] and all his homies come handle [her].” Warner had told her that Valdez was a high

- ranking gang member, and Krueger was afraid that if the police were involved, Antonio would come to the house and hurt her in front of Kayleigh. Krueger was also concerned that Kayleigh would be taken away because they were using drugs. The police arrived at the apartment in response to the argument, but Krueger did not tell them what

Warner had said and done. After the police left on the morning of January 27, Krueger took Kayleigh to a friend’s house for several hours. She had told Warner to pack31

his things and leave wh ile she was away. But while she was at her friend’s house, she sent Warner a text message that said, “I really hope you’re home when I get there.” He responded, “I got up, made pancakes for your daughter, put cinnamon rolls in the oven .

. . and you woke up treating me like dog shit for nothing,” to which she replied, “I am so sorry. You do so much for us. I am so sorry. I guess I was just mad because I wanted to cuddle with you last night.” She and Kayleigh went back to the apartment that afternoon, took a nap on the couch, and awoke to Warner saying that he would take Kayleigh to the bathroom and then make dinner. That night, Krueger didn’t really sleep. At about 10:00 a.m. on January 28, she was taking a shower and fainted; she hadn’t eaten beca use she was using, and Warner told her to lie down, made her some soup, and said he would take care of Kayleigh. For the rest of the day on January 28 Krueger slept off and on, until about 5:00 in the afternoon, when Kayleigh brought her a picture she h ad made for her. Krueger and Warner had an argument that evening, and at some point on January 28 she sent him a text saying that she cared for him, and it was clear he would never have the same feelings for her, and she “just want[ed] to feel loved.” Af ter the argument, Krueger called her friend Epperson, crying and saying that she was upset about the way Warner treated her because she was helping him out so much and felt things were

one

- sided. Epperson asked if she wanted him to come over, and she said yes, so he could keep her company.32

Krueger testified that on January 29, she woke at about 8:00 a.m. 15 and Epperson arrived soon thereafter. That day she smoked marijuana but did not use methamphetamine, contrary to Epperson’s testimony. During the

d ay she was “periodically” in her bedroom with the door closed, and Kayleigh was in another room watching a movie. That afternoon, at about 4:00 or 4:30, Krueger was in her bedroom and heard Warner say, “[W]hat happened, did you throw up?” Krueger, who wa s under the effects of “coming down” from methamphetamine and high from smoking marijuana, went into the bathroom where Kayleigh was, and saw vomit on the floor, brown liquid in the sink, and a measuring cup on the floor in which Warner had a tobacco pipe soaking in water and Windex. Kayleigh said she was thirsty and that she got new water. As far as Krueger knew, that was the first time Kayleigh vomited that day. Krueger testified that she wanted to call poison control because she thought Kayleigh had swallowed tobacco; Warner said no, that it was okay and that Kayleigh just needed to throw up and that they should give her water. Epperson reminded Krueger that when Kayleigh was a baby she had eaten half a cigarette, Krueger had called poison control, which told her that she would throw up and to give her water. So she gave Kayleigh water, and Warner put his finger in her throat a couple of times to get her to throw up. Kayleigh threw up about six times; the last time was while the police were

there t hat evening. Kayleigh was sitting in Krueger’s lap when she vomited; the vomit was red from Pedialyte that she had given Kayleigh, and it got on Krueger’s clothes.

15 On February 5 and 15, 2014, in recorded telephone calls with her father, Krueger said she had been awake for 30 hours, since she last used methamphetamine, when she fell asleep on the morning of January 30.33

Krueger said she told the police that Kayleigh had been throwing up; they said they were done with her and that she should go get cleaned up. The police left while she was in the shower, with Kayleigh sitting in the tub playing. Warner knocked on the bathroom door, and Krueger clung to him and cried because she was afraid Kayleigh would be taken away because of the drugs in the house. Krueger did not notice anything unusual about Kayleigh while she was in the tub. The only bruises she saw were bruises she knew about: a few on her lower back, two little ones on her chin, and one on her f orehead. Kayleigh had told her the bruises were from bumping her head on the table or from her bike. Previously, before her hand was slammed in the door, Warner had told her that Kayleigh had jumped up from the toilet to hug him, and they bumped heads, g iving him a swollen eyebrow and Kayleigh a black eye. The black eye had gone away by January 29. After Krueger put Kayleigh to bed, Kayleigh woke up a few times whining that she was thirsty. Krueger gave her Pedialyte, thinking that the

tobacco she ha d drunk was gone and she was waking up thirsty from having thrown up so much. Krueger did not sleep until about 4:00 in the morning on the 30th. When she went to bed, Kayleigh was in the bathroom with Warner. Krueger

woke at 4:00 in the afternoon. Sh e had expected to find Kayleigh in bed with her, looked at her phone to see what time it was, and then, concerned that she had slept so long, went to find Kayleigh, who she found on the bathroom floor lying on her stomach. Krueger thought she was asleep, and went back to the bedroom and asked Warner, who was waking up, why Kayleigh was sleeping on the floor. Krueger went back to check on her, called her name, and went to shake her, but realized that Kayleigh was dead when she34

touched Kayleigh’s leg, which was cold and stiff. There was a bruise on Kayleigh’s bottom that she had not seen before. 16 She started screaming that Kayleigh was dead and started to pick Kayleigh up. Warner ran into the bathroom and took Kayleigh from her arms. He started shaking Kayleigh and poking at her stomach, and said, look, she’s breathing. Krueger told him to stop and give Kayleigh to her, which he did. Krueger said they needed to call 911. Warner said he needed 10 minutes to process what had happened, and he took Kaylei gh and put her on her bed. When Krueger asked for her phone to call 911, Warner said the police would think he did something to Kayleigh because of the bruise on her bottom. He told Krueger that the day before, Kayleigh had gotten out of a time out early, and he spanked her, but he didn’t think he had spanked her hard, but apparently he had. Krueger told him a spanking would not kill Kayleigh and there must have been more Windex in the cup, which she must have drunk and which poisoned her. Krueger testified at trial that she still believed that Kayleigh died from drinking the Windex and tobacco solution. Although Krueger had told Detective Hess in her interview that she was in and out of Kayleigh’s room after she found Kayleigh on January 30 and on January 31, she testified at t rial that Warner would not let her into Kayleigh’s room until after she took Kayleigh’s body from the freezer. On Friday afternoon, Warner said he needed to get out of the house, so they went for a walk, and ended up at Target, where Warner bought ice

cr eam. They returned to the apartment, and late that night or early Saturday morning, Valdez and his brother came over at Warner’s request. The four of them talked in Valdez’s car. Warner said that Kayleigh had

16 Kr ueger testified that she did not see other bruises on Kayleigh when she found the body.35

drunk something and died, and that he needed help to get away and get rid of her. Krueger was crying, and Valdez yelled, why didn’t you call the police. Krueger told him that she wanted to. She testified that she did not call, and asked why not, she testified that Warner had her phone.

After V aldez and his brother left, as Krueger was dozing off, she heard Warner say something about the freezer. She awoke at about sunrise and could not recall whether he had actually said that; she asked him if Kayleigh was in the freezer. When Warner said yes , she went to the kitchen, opened the freezer, took out the bag with Kayleigh’s body, and removed the body from the bag. She noticed the body had a red, purplish color on the side that had been lying on the floor. 17 She put Kayleigh’s body back in her be d, under

blankets. Later that morning, they left the apartment. One of the last things Krueger did before leaving was pack a bag of “special clothes of Kayleigh’s and hospital clothes and first birthday clothes.” The bag was marked “Please give to my mom.” After leaving the apartment, Krueger and Warner tried to sell some video game equipment at Game Stop to get money, and then went to Home Depot where she arranged with Vasquez to give them a ride to Vallejo. Warner had told her they should go to Val lejo, and she assumed that was to get a bus, but she didn’t know where they would go from there. Warner told her he would give her the phone and let her call the police when they got out of town.

17 Krueger testified that although she had since seen photographs that show bruises all over Kayleigh’s body, including on her stomach, she did not see other bruises w hen she found the body or when she took the body from the freezer and laid it on the bed.36

At Vallejo, they took a bus to the El Cerrito Del Norte BART station, arriving at about 1:30 p.m. on Saturday, February 1. They took BART to San Francisco and went into a fast food restaurant, where Warner gave her phone back and said she could call the police. She turned on the phone and saw dozens of messag es, and she knew that the police had found Kayleigh. She told Warner she wanted to go back to Napa and go to the police station herself rather than calling. Warner said he would go with her, but as they started walking back to the BART station, Warner sa id he wanted to go to the beach and smoke some marijuana that Krueger had with her, and then they would head back. So they went to the beach, and later took BART to SFO. It was too late to get a bus to Napa, so they went to the airport where they sat on chairs for the rest of the night. Krueger added that “before the airport, we were gonna go to a church.” The next day they took BART back to El Cerrito Del Norte, where they were arrested. Krueger testified she had spanked Kayleigh just three or four times in her life, with an open hand on Kayleigh’s bottom. She did not yell at Kayleigh during the last week of her life, except on January 29, when she was on the couch with Kayleigh trying to get her to eat a Pedialyte popsicle to rehydrate her. Warner came out of the bedroom and said to Kayleigh, are you not listening to your mom, at which point Kayleigh took a bite from the popsicle. Krueger said she was not concerned that Kayleigh was ser iously ill, but just worried about dehydration and noted that it was unusual for Kayleigh to refuse to eat a popsicle. Krueger admitted that Kent and Patterson each expressed dislike for Warner, who they characterized as arrogant. Her father disliked W arner because he thought Warner should be working. In January 2014, Krueger37

and her father fought about the fact that he thought she was using drugs and that that he didn’t approve of Warner living in her home. Krueger admitted that child protective se rvices (CPS) was supervising her with Kayleigh from the time Kayleigh was five months old until she was almost two. She also admitted that during that time Jason went to prison for an incident that occurred when he came to her apartment, grabbed her arm, and twisted it. She told her CPS worker that she had lied to the police, and that Jason had not assaulted her but had been jumped by gang members.

She admitted at trial that what she told CPS was a lie. The truth was that she had fought back when Jason assaulted her and it had left marks on him, and she and Jason were concerned that she would get in trouble with CPS for fighting him. Krueger testified that Warner did not physically abuse her as Jason had; the only physical injury she ever received fro m Warner was the injury to her hand when the door slammed, and she did not know whether that was intentional on his part. Unlike Jason, Warner did not try to prevent her from seeing her friends.

3. Expert Testimony Marriage and family therapist Lind a Barnard testified as an expert in intimate partner battering and the psychological concept of dissociation. Intimate partner battering creates “coercive control” even if physical force is absent. Abuse followed by kindness creates a bond, which is enha nced by isolation of the victim from other support. “Cumulative traumatic stress” leads to changes in the brain. Memory of a traumatic event may be disordered and inconsistent. Perception may be altered. A person who has been the victim of trauma, in cluding intimate partner battering, and who suffers a traumatic event, like finding their child38

dead on the floor, might not notice aspects of the child’s body, such as bruising. Dr. Barnard testified that dissociation is commonly part of a response

to trauma, whether cumulative trauma or an extremely traumatic event. A dissociative response can include a failure to register information about a traumatic event and loss of memory of details surrounding a traumatic event. The person may be unable to desc ribe events in sequence, or may remember some things but not others. A person in a dissociative state “feels like they’re split off from their feelings,” or “their behaviors show that they’re somehow not connected to the behaviors that they’re doing, that there’s a disconnection there,” but might be able to negotiate with a cab driver for a ride, or perform routines tasks, like laundry. A person undergoing an extreme dissociative episode cannot function, but more commonly, a person in a dissociative stat e has a flat affect even when talking about the traumatic event. After interviewing Krueger, reviewing a transcript of Krueger’s testimony, and the video of Krueger’s interrogation by Detective Hess, as well as various police reports, medical reports, Ka yleigh’s autopsy report, and a receipt from Target, Dr. Barnard diagnosed Krueger as suffering from posttraumatic stress disorder with depressive symptoms. Dr. Barnard opined that Krueger experienced multiple traumatic events in her life, including being involved in two relationships that included intimate partner battering: one with Jason Slusher, characterized by numerous incidents of physical violence, and one with Warner characterized by strident arguments and three incidents of physical violence. 18 Dr. Barnard opined that the trauma affected

18 Dr. Barnard opined that other traumatic events in Krueger’s life included experiencing violence in her home growing up, abandonment issues with her parents, physi cal and verbal abuse from her father, being molested multiple times by a boyfriend’s father, being the victim of a rape by two men39

Krueger’s memory, perception, behavior, outlook and beliefs, that Krueger went into a dissociative state upon finding Kayleigh dead, and that the dissociation was probably prevalent for the first few days, includ ing the first days after her arrest, and intermittent from then on.

D. Rebuttal Psychiatrist Mikel Matto, an expert in dissociative disorders, the effects of trauma, and intimate partner battering, opined that Krueger had a demonstrated history of abuse from Jason that impaired her reasoning and judgment, but that she did not have such a history with Warner, and that there was no evidence that her relationship with Warner affected her like the relationship with Jason. Dr. Matto said that when he intervi ewed Krueger in March 2017, she described a dissociative episode that lasted almost three months from her discovery of Kayleigh’s body, but Dr. Matto did not believe that Krueger was actually in a dissociative state. Dr. Matto opined that Krueger’s behavi or during that period, as reflected in her actions and appearance in the videos, including those from Target and SFO (which Dr. Barnard had not viewed), and her recall of details when she was interviewed by Detective Hess, were inconsistent with dissociati on. E. Verdict and Sentencing The jury found Krueger guilty of both murder and assault resulting in the death of a child under eight years old, and found true the special

circumstance of torture

. Krueger was sentenced to life in prison without the possib ility of parole for the murder charge. Her sentence of 25 years to life on the assault charge was stayed under section 654. She timely appealed.

at the age of 14, and experiencing a car accident. Krueger had testified to these incidents.40 DISCUSSION

A. Batson

/Wheeler Challenge Krueger argues that the trial court violated her state and federal constitutional rights when it overruled her Batson/Wheeler objection to the prosecutor’s peremptory challenge of juror D.B., an African American woman. We are not persuaded.

1. Addition al Facts At the beginning of jury selection on the morning of April 19, 2017, the trial court stated that the trial would likely be finished the first week in June, and asked, “Is there anyone here in the jury panel who believes that’s going to be an issu e for you that you didn’t mention in your papers?” D.B. voiced concern about the length of the trial: “I have a granddaughter who’s expecting her baby any day now and she is kind of a high risk and we’ve got someone covering for me now. She’s in Fair field. There’s no one staying with her to

— because she’s alone. So we’re at that point now where someone has to be with her. So I’ve got

— so it’s kind of like passing the torch to be with her now. [ ¶ ] So not knowing that

— how long this

would take

— we’re ho ping that she has the baby and that’s my great grandbaby, so it’s one of those things that

— I’m hoping that she has the baby

while

— I just didn’t expect it to go this long. So it’s one of those things.” In response to questioning, D.B. told the court she was a resident of Napa; was married; she had worked for the Vallejo Health Department but went out on disability; her husband was retired; she had three grown children, whose ages and jobs she described, and several grandchildren; she was very excited abo ut the upcoming birth of her great grandchild; and her

mother

- in

- law remembered the trial judge “from way back in the day.” She said, “I do believe I can be fair, because I’m a fair person. There’s always two41

sides to every story. I always felt like tha t, but I do feel strongly about it because I do have grandchildren. But I do feel I could be fair about it.” The court noted, “I haven’t forgotten what you stated about your great granddaughter ready to be born.” Later that morning, the judge and atto rneys spoke with D.B. outside the presence of the jury. The court addressed D.B.: “[Y]ou indicated that you received a text that your .

. . granddaughter is in labor? [ ¶ ] We would really like to keep you because we think you could be fair and impartial. Is there

any

— .” D.B interjected, “That’s what I’m trying to, I would like to take the call.” The colloquy continued: “THE COURT: “Somebody is there at the hospital with her? “[D.B.]: I’m trying to see if I can get somebody to cover. Because her

st ep dad is there

— this is the first baby, so she’s probably got time. “THE COURT: Usually they’re in labor for a while. “[D.B.]: But she’s been dilated .

. . to three and a half since for a week now. Oh, okay. And she says she’s not going back to the h ospital until

— until she feels ready. “THE COURT: I’ll let you go ahead and make the call and let us know how things are going, because we would love to keep you as a juror if possible. “[D.B.]: So I can step out?

“THE COURT: Please.” Shortly after that, the court asked D.B, “[W]ere you able to get somebody?”, to which D.B. replied, “Yeah.” Still later in the morning, the prosecutor observed that “there was some concern expressed in some of the questionnaires about seeing” photos of the injuries to Kayleigh, including photographs of the exterior and interior of her42

body. The prosecutor then asked D.B. if she would hold it against him if he showed her certain photos of Kayleigh’s body. This colloquy followed: “[D.B.]: I don’t know how. I can’t answer that until

— because I do have grandchildren and I am expecting the new born. So I can only be honest answering that to you because I don’t know how I would feel about that. “[PROSECUTOR]: It’s hard to specifically answer that question

– “[D.B.]: Yes. “[PROSECUTOR]:

— without having seen the photos. [ ¶ ] What I wanted to do is not have you sworn as a juror in this case and start showing evidence and pop photos up and have you

— because I think if we’ve talked about it before, no one likes these charges, that’s not the issue. “[D.B.]: You just bringing that up to me has got my heart beating. “[PROSECUTOR]: Okay. [ ¶ ] I have a daughter who loves to go to

horror movies with me but I feel like most of the time I turn to her and she’s doing this and you can’t do that in this trial. “[D.B.]: Right. “[PROSECUTOR]: You got to pay attention. You’ve got to look, you got to evaluate because it’s going to be discussed by witnesses, you’re not gonna just see pictures. There’s got to be a witnes s that helps explain the picture for you but you’ll see multiple pictures of the outside of Kayleigh’s body, front and back, and you’ll see multiple pictures of the inside of her body. “[D.B.]: That’s going to be hard for me. “[PROSECUTOR]: It’s going to be hard for anybody. “[D.B.]: It’s hard for me right now just hearing you say that. “[PROSECUTOR]: Okay. [ ¶ ] (Juror number 4), what’s your feeling on

this issue.43

“JUROR No. 4: I think that, like I said, it has to be done. You’re doing

your job, so that is part of the process to see these photos. So again without knowing how I would feel but I do understand that’s part of the process. “[PROSECUTOR]: Just with this general concept of the photos, is there anyone who’s sitting here now thinki ng I can’t do it? Not I don’t want

to do it

— no one wants to do it, but I can’t do it in this case? Okay. For the record, no response.” Voir dire continued. That afternoon, after further questioning, the prosecution exercised six peremptory challenges and the defense exercised five. The prosecution then used its seventh peremptory challenge to remove D.B. from the panel.

Defense counsel made a Batson/Wheeler objection. Outside the presence of the jury, defense counsel stated, “[T]he prosecution ha s excused [D.B.], an African American woman. Her answers were unremarkable. They’re much like answers of all the other jurors. If she exhibited any bias

. . . which I don’t think she did, it probably was in favor of the prosecution. [ ¶ ] She mentioned g ruesome photos, how hard it would be for her to serve because of her grandchildren. But she didn’t disagree with any of the principles of law, she didn’t say she had made up her mind on the facts. She basically said looking at gruesome photos is hard and that’s what everybody else said. That’s what any reasonable person would say, and yet the Government dismissed her. I failed to discern any reason why she couldn’t serve on this jury, keep an open mind, judge the facts, apply the law and render a good v erdict. [ ¶ ] So I submit there’s an invidious purpose to the

dismissal of her.” The judge responded, “I don’t know that the burden has been met. I

understand that it can be made with individuals but there’s been several44

people who have been excused tha t didn’t set forth any bias. In fact, people we felt were not able to sit on this case we excused for hardship. But, nevertheless, so that we have a good record I’ll go ahead and ask the People to set forth their reason.” At that point, the prosecutor a sked for clarification: “[F]or the record is the Court finding there’s not been a prima facie case?” The judge replied: “I’m finding there’s not been a prima facie case just

because she’s African American. There’s another African American on the panel. There’s not very many in this county. We also have people of other

races .

. . that have been on the panel that have been excused by both sides. And the fact that that’s done doesn’t mean that this is an appropriate

Wheeler/Batson motion. But in the i nterests of having a good record I’m going to ask you to set forth the reasons.” The prosecutor then did so, and the trial court accepted them as nondiscriminatory. 19

2. Applicable Law and Standard of Review

“Both the United States and California C onstitutions prohibit discriminatory use of peremptory strikes.” ( People v. Reed (2018) 4 Cal.5th 989, 999.) “A three

- step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must

19 The prosecutor stated his p rimary concern was that earlier in the day, when counsel were at the bench, D.B. received a text about her great grandchild, which made her “visibly anxious.” In addition, D.B. left blank question 19 on the questionnaire , which asked the age, gender, and occupation of all children, and whether they lived at home. The only indication that she had children was in her answer to question 55, which asked whether graphic evidence showing injuries to Kayleigh’s body would make it impossible for her to serve as a juror: she answered, “yes,” explaining “I have grandchildren.” Also , D.B. answered question 43 about her prior jury service by writing “VJO” as her answer for “When/Where?” The prosecution noted that D.B. provided no other detail, including the type of case, which suggested “some confusion on her part.”45

make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution’s offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. ( People v. Lenix (2008) 44 Cal.4th 602, 612 [( Lenix )].) ‘The ultimate burde n of persuasion regarding [discriminatory] motivation rests with, and never shifts from the [defendant].’ ( Id. at pp. 612

- 613.)” ( People v. Manibusan (2013) 58 Cal.4th 40, 75.) A defendant makes a prima facie case by showing that “the totality of

the relevant facts ‘ “gives rise to an inference of discriminatory purpose.” ’ ” ( People v. Scott (2015) 61 Cal.4th 363, 384 ( Scott ), quoting Johnson v. California (2005) 545 U.S. 162, 168 .) Whether a prima facie case exists depends upon “the entire reco rd of voir dire as of the time the motion was made,” and “certain types of evidence may prove particularly relevant.” ( Scott

, supra , 61 Cal.4th at p. 384.) “Among these are that a party has struck most or all of the members of the identified group from t he venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is

a mem ber of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and ‘clearly established’ in the record [citations] and that necessar ily dispel any inference of bias.” ( Ibid. ) When a trial court finds that the defendant failed to establish a prima facie case of purposeful discrimination, we review the record, including voir46

dire and any jury questionnaires, to determine whether substa ntial evidence supports the ruling. ( People v. Griffin (2004) 33 Cal.4th 536, 555 ( Griffin ), disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) “We sustain the ruling when the record discloses grounds upon

which the prosecutor properly might have exercised the peremptory challenge[ ] against the prospective juror[ ] in question.” 20 ( Griffin at p. 555

. )

3. Analysis Substantial evidence supports the trial court’s finding that Krueger did not make a prima facie s howing that the prosecution dismissed D.B. for the improper reason that she was an African American woman. (See Scott

, supra, 61 Cal.4th at p. 384.) To begin, the record shows that the prosecution did not strike all, most, or a disproportionate number of African Americans: to the contrary, the prosecutor had not previously challenged any African American juror, and there was one other African American juror on the panel at the time D.B. was challenged. 21 Nothing in the record suggests that the prosecu tion struck all,

20 I f the trial court finds that no prima facie case has been made, the court may nevertheless offer the prosecution an opportunity to state its reasons for dismissing the challenged juror, as happened here. ( Scott

, supra , 61 Cal.4th at p. 388.) And even if, as here, the prosecution provides nondiscriminatory reasons and the trial court determines that the reasons are genuine, the reviewing court begins its analysis of the denial of the challenge with a review of the first

- stage finding that no prima facie case was made. ( Id. at p. 391.) If the reviewing court determines that the trial court’s finding on the first

- stage issue is supported by substantial evidence, the claim is resolved without consider ation of the third

- stage ruling. ( Ibid. ) If the reviewing court determines that the first

- stage ruling was in error, it proceeds to review the third

- stage ruling without the need for a remand to the trial court. ( Ibid. )

21 No party disputes the trial cou rt’s statement that there was another African American juror on the panel when D.B. was challenged. The record47

most, or a disproportionate number of women. Also, defendant Krueger is

not African American

— the parties describe her as Caucasian

— so there is no concern that D.B. was challenged because she and Krueger are members of

the same identified group. The prosecution conducted in

- depth voir dire of D.B. as well as other jurors. In responding to the juror questionnaire, D.B. expressed her reluctance to view the evidence: she stated that seeing the evidence of injuries to Kayleigh’s body would make it impossible for her to serve as a juror because she had grandchildren. The prosecutor probed this issue in voir dire, where D.B. expressed concern that because of her grandchildren and the expected newborn, she might hold it against the prosecutor if he showed her photos of Kayleigh’s body. In response to questions, D.B. emphasized that seeing the evidence would be “hard” for her. The record therefore clearly establishes D.B.’s reluctance to serve on the jury, which is a nondiscriminatory reason for challenging her. (See Griffin

, supra , 33 Cal.4th at p. 555.) The record clearly establishes additional nondiscriminatory reasons for excusing D.B. from the panel. D.B. was anxious and apparently preoccupied about her granddaughter, who had just gone into labor in a high

- risk pregnancy with D.B.’s first great grandchild. D.B. had been staying with her granddaughter, who was otherwise alone, although someone was currently covering for D.B. If D.B. were seated on the jury, she might have difficult y paying attention to the evidence or she might have had to be excused after the trial began because of some complication with the labor or birth.

does not reflect whether that juror was male or female. No party suggests that the other African American juror was subsequently stricken from the panel; the record suggests not.48

Relying on People v. Cunningham (2015) 61 Cal.4th 609, Krueger argues that the trial court ruling is subject to de novo review because her challenge “is not a dispute about the record facts.” Krueger is mistaken. Cunningham holds that de novo review is appropriate where the trial court applies the incorrect standard to determine whether a peremptory challenge is improperly motivated. ( Id. at p. 664.) The trial court here did not use an incorrect standard, and therefore the de novo standard does not apply. Krueger argues that the trial court denied the motion because Krueger failed to show “systematic bias, ” and that in so doing the trial court applied a standard that has been rejected since Swain v. Alabama (1965) 380 U.S. 202 and was overruled by Batson . This argument is belied by the record: the trial court stated that it understood that a prima facie c ase “can be made with individuals,” which indicates that the trial court did not use an erroneous systematic bias standard. Krueger also argues that the sole basis for the trial court’s denial of her motion was the fact that an African American juror re mained on the jury. The record does not support this argument, either. We do not interpret the trial court’s statement that there was another African American on the panel as indicating that its ruling was based solely on that fact. Accepting Krueger’s interpretation would require us to consider the trial court’s statement in isolation and out of context. Further, the court may have been mindful of the need for comparative juror analysis as part of any third

- stage inquiry. ( Lenix , supra , 44 Cal.4th at p. 622 [“evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons”].)49

Finally, Krueger contends that the tria l court failed to take the relevant factors into account in making its ruling, and argues that her case is

like Turner v. Marshall (9th Cir. 1995) 63 F.3d 807. We disagree that the

case is like Turner , where “the judge simply reviewed the racial and ethni c makeup of the excluded venirepersons and of the petit jury at the time of the motion, and concluded, ‘I don’t see any pattern of individual discrimination at this point .

. . I think we’ve got a fair mix right now.’ ” ( Id. at p. 814.) Moreover, Krueger ’s argument rests on the premise that the trial court’s sole basis for rejecting the challenge to D.B. is that an African American juror remained on the panel, a premise we have rejected. Because we conclude that substantial evidence supports the trial court’s finding that Krueger failed at the first stage of the Batson/Wheeler objection to make a prima facie showing of discriminatory purpose in using a peremptory challenge to strike D.B., we need not, and do not, reach the trial

court’s third

- stage ruli ng. ( Scott

, supra , 61 Cal.4th at p. 388.)

B. Evidence to Support the Verdict Krueger argues that the record contains no substantial evidence that she had the intent to torture required for a conviction for first degree torture

murder or the intent to kill required for the torture special circumstance. She also argues that there is no substantial evidence that she assaulted Kayleigh at or near the time of her death or knowingly aided Warner in doing

do. We conclude that substantial evidence supports the verdicts for torture murder and assault resulting in the death of a child, but we agree with Krueger that there is not substantial evidence to support that she had the intent to kill required for the special circumstance, and therefore we shal l reverse the jury’s finding that the special circumstance was true.50

1. Standard of Review “In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light

most favora ble to the judgment to determine whether it discloses substantial

evidence

— evidence that is reasonable, credible and of solid value

— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the

defenda nt’s guilt beyond a reasonable doubt. [Citation.] ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warr ant a reversal of the judgment. [Citation.]” ’ ” ( People v. Kraft (2000) 23 Cal.4th 978, 1053

- 1054.)

2. Analysis

a. First Degree Murder A conviction for first degree murder under the theory that the murder was by torture requires proof of “(1) acts causing death that involve a high degree of probability of the victim’s death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpos e.” ( People v. Cook (2006) 39 Cal.4th 566, 602.) “The intent to torture ‘is a state of mind which, unless established by the defendant’s own statements (or by another witness’s51

description of a defendant’s behavior in committing the offenses), must be

pr oved by the circumstances surrounding the commission of the offense [citations], which include the nature and severity of the victim’s wounds. ’ ” ( People v. Mungia (2008) 44 Cal.4th 1101, 1137.) The severity of the wounds must not be given undue weight, because “severe injuries may also be consistent with the desire to kill, the heat of passion, or an explosion of violence.” ( Ibid. ) Krueger concedes that there is substantial evidence that Kayleigh’s death was by one or more blows to the abdomen, and tha t the injuries that caused her death would have caused extreme prolonged pain. She argues there is no evidence that she inflicted Kayleigh’s fatal injuries or aided Warner in inflicting them, and no evidence that she intended to cause extreme pain for a s adistic purpose or that, as an aider and abettor, she shared Warner’s intent, which would have occurred if she had “ ‘ “know[n] the full extent of [his] criminal purpose and give[n] aid or encouragement with the intent or purpose of facilitating [his] comm ission of the crime.” ’ ” 22 ( People v. McCoy (2001) 25 Cal.4th 1111, 1118.) More specifically, she contends there is no evidence of the circumstances under which Kayleigh suffered the fatal injuries, and that absent such evidence, “the mere fact she

suff ered painful injuries” does not prove the intent required for a conviction for first degree murder.

22 The jury was instructed, “Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” The jury was also instructed that the aid can be provided by “[t]he defendant’s words or conduct, or failure to act in those situations where the defendant was under a legal duty to act.”52

Reviewing the record in the light most favorable to the judgment, we conclude there is ample evidence of the circumstances under which Kayleigh

suffered the injuries to support the verdict against Krueger, including evidence of deliberate and premeditated intent to cause extreme pain for a sadistic purpose. The medical experts agreed that the fatal injury or injuries occurred between the police visits to Krueger’s apartment on January 27 and 29. During that time, the only people who had access to Kayleigh were Krueger, Warner, Epperson and the friend Krueger visited on January 27 after the police visit, and there is no evidence or suggestion that Epperson or the other friend laid a hand on her. That leaves Warner and Krueger, who were in Krueger’s 585

- square

- foot apartment for most of that time with no one present but Kayleigh. The jury could have inferred that the injuries were inflicted by Warner, or K rueger, or both of them. As to Warner, evidence that in the weeks before Kayleigh’s death he had thrown over a Christmas tree, slammed Krueger’s hand in a door, pushed Krueger against a door, punched holes in a door, and spanked Kayleigh so hard he left m arks on her supports an inference that he struck the fatal blow. As to Krueger, there was evidence that she had a temper, had directed violence at Jason, became angry when coming down from a methamphetamine high, and hit Kayleigh on at least

one occasion during the two weeks before her death, notwithstanding her claim that she had never hit her except for three or four spankings with an open hand that had occurred long ago. 23

23 The jury could well have doubted Krueger’s credibility on a number of issues. Among other things, there was evidence that she gave different accounts of her injuries and Kayleigh’s to different people, and that she had lied to CPS in connection with their sup ervision of Kayleigh.53

If the fatal injuries were inflicted by Warner, the jury could have

inferred th at Krueger not only knew about them, but also assisted Warner in inflicting them or approved of his actions. The injuries required “severe” force, which would no doubt have provoked an audible reaction from Kayleigh

even if the force itself could not be h eard. The juries could have inferred that any sound would be heard within the apartment, which was only 585 square feet. Further, there was ample evidence that noises in the apartment carried to neighboring units, which supports the inference that noises would be heard within the apartment as well. Yet there is no evidence that Krueger did anything to protect Kayleigh or interfere with Warner. The jury could have inferred, therefore, that Krueger approved of, encouraged, or assisted

Warner’s acts. Krueg er claims that the prosecution’s evidence of torture consisted “solely of repeated blunt force trauma causing ‘extremely painful’ injuries.” Not so. Kayleigh’s small body

– she was just 41 inches tall and weighed only 34 pounds

— was covered with 41 bruise s. There was vivid evidence of prolonged deterioration of Kayleigh’s health, including abuse and attempts by Krueger to conceal it, suggesting a deliberate and premeditated intent to cause severe pain to Kayleigh. Some of the bruises that covered Kayleig h’s body were caused by a beating or beatings that occurred within days or hours of her death. But those recent injuries were not the only injuries she had suffered. Some of the injuries on her body, including the broken rib, had occurred longer ago, and there is evidence from family members and neighbors that Kayleigh had exhibited a number of bruises in the weeks before her death and that Krueger and Warner gave conflicting accounts of

them. Dr. Crawford

- Jakubiak testified her injuries, the result of r epeated episodes of blunt

- force trauma, were “far beyond” what would commonly be54

suffered by a three

- and

- a

- half

- year

- old, despite a litany of repeated excuses, like falling off a bike, bumping a head on the table, tripping over a clothes hamper, hitting a chin on a bathtub, or an overly energetic embrace while Kayleigh was sitting on a toilet seat. Toward the end of her life Kayleigh also exhibited an unusually subdued demeanor. Kayleigh played outside less often, and when she did, she was often alone. I n the last month of her life, Kayleigh indicated to at least three different people that she did not want even to be at Krueger’s apartment. There was a search on Krueger’s cell phone for an article about a woman accused of child abuse.

There was eviden ce of premeditated and deliberate intent to cause extreme pain in Krueger’s failing to seek any medical attention for Kayleigh at any time in the last weeks of her life, not to mention the last few days of her life, despite knowing there were bruises on he r body and that she was in pain. This was a dramatic change from Krueger’s previous practice of seeking care for Kayleigh for even minor problems. Krueger did not seek medical help despite abundant evidence that Kayleigh had become pale, was looking tire d, and was vomiting. To the contrary, Krueger lied about what was wrong with Kayleigh and lied about seeking help when she told Robin that Kayleigh was ill and that she had contacted the doctor, when she told her father in late January that Kayleigh had t he flu, when she led Epperson to believe she had called poison control, and when she told the police during their January 29 welfare check that Kayleigh had the flu. More specifically, the jury could infer that Krueger was aware of bruising on Kayleigh from the online searches for information on how to get rid of bruises during the last week of Kayleigh’s life. Accordingly, the jury could well have disbelieved Krueger ’s testimony that she was unaware of extensive bruising on Kayleigh’s body on January 29 when they were in the55

shower together and on January 30 when she found the body. And the jury could infer that Krueger was aware that Kayleigh was in pain, because ev en though Kayleigh was just three

- and

- a

- half when she died, she was fully able to communicate how she felt, as shown by her interactions with Krueger, Robin, Epperson, and Officer Chambers. There was evidence from Dr.

Crawford

- Jakubiak that Kayleigh would have demonstrated pain from her broken rib and fatal injuries and would have communicated what happened to her, and jurors could infer that Kayleigh did indeed communicate about it, and that the computer search for “stabbing pain next to bellybutton” was conducted in response to a complaint from Kayleigh. Further, Krueger took steps to prevent Kayleigh from communicating with family members during the last weeks of her life by isolating her and preventing her from visiting

with them.

There was evidence of premeditated and deliberate intent to cause extreme pain in the sheer number of bruises that covered Kayleigh’s small body: 41 separate external injuries, of which 8 to 15 were on her abdomen.

Dr. Cohen and Dr. Crawford

- Jakubiak testified that bruisi ng, which resulted from moderate to severe force, was consistent with beating, not with accidental injury or spanking; indeed, Krueger concedes that there is substantial evidence that Kayleigh’s death was the result of an assault to her

abdomen. Krueger ’s conduct after Kayleigh’s death provides further evidence that she had acted with premeditated and deliberate intent and that she and Warner acted with shared intent. Krueger did not appear to be in any distress in video footage taken after Kayleigh’s d eath. She did not contact the police or any family members to seek assistance after Kayleigh died. She did, however, check on her benefits, go out for a walk with Warner to buy ice56

cream, and conduct a search for high

- population U.S. cities, suggesting s he was looking for a place to hide. She accompanied Warner when he asked his friends for help getting away and getting rid of Kayleigh’s body. Despite the friends’ insistence that they call the police, Krueger failed to do so and

instead tried to flee wi th Warner. And the flight was not precipitous: Krueger testified that she found Kayleigh’s body on the afternoon of January 30, but did not flee until the morning of February 1. She took the time to pack a bag of Kayleigh’s clothes for her mother, and t he jury could have inferred that she acted with Warner to conceal evidence, as reflected in the latex gloves found in the apartment and the fact that she and Warner left the apartment with a bag that was never found. While Krueger and Warner were away fro m the apartment, they took BART to San Francisco, where they went to a fast food restaurant and then to the beach; later they cuddled on an airport tram. We agree with the Attorney General that a reasonable juror could have concluded that as Krueger and Warner increased their use of methamphetamine, they found Kayleigh to be an annoyance and obstacle to their drug use. Once Krueger reconnected with Warner in the summer of 2013, she became less attentive to Kayleigh. Eventually, Krueger and

Warner were screaming at her to be quiet, as heard by a neighbor. In light of Kayleigh’s injuries and Krueger’s and Warner’s conduct, the jury could conclude that they took to beating her with premediated and deliberate intent to cause pain for the sadistic purpose o f persuading the toddler to simply be quiet and leave them alone, escalating their assaults over time to achieve their aim when screaming at her or leaving her alone in a room with a movie was not enough. Krueger’s actions support the conclusion that she knew of the abuse and suffering she and Warner inflicted on Kayleigh,57

recognized that she bore blame for that abuse, and acted in concert with

Warner and with the same intent. In sum, the record contains substantial evidence to support the finding

that Krueger acted with a torturous intent. There was evidence that severe force was used to inflict the fatal injury or injuries, evidence that Kayleigh had been injured extensively over a period of time, evidence that Kayleigh was in severe distress, and evi dence that not only was her distress known to Krueger and ignored, but also Krueger kept Kayleigh away from people who might have been able to help her. Because we conclude that substantial evidence supports the verdict of first degree murder under a tort ure murder theory, we do not reach Krueger’s argument that in the absence of such evidence the judgment may not be modified to reflect a conviction for second degree murder.

b. Torture Special Circumstance The torture special circumstance, as set forth in section 190.2, subdivision (a)(18), requires proof of first degree murder and proof “that

defendant intended to kill and had a torturous intent, i.e., an intent to cause extreme pain or suffering for the pu rpose of revenge, extortion, persuasion, or another sadistic purpose.” ( People v. Streeter (2012) 54 Cal.4th 205, 237, italics added.) “The relevant inquiry .

. . is whether defendant harbored an intent to kill when he tortured” the victim. ( People v. J ennings (2010) 50 Cal.4th 616, 647.) As with intent to torture, there is rarely direct evidence of intent to kill, which must usually be derived from the circumstances, including the defendant’s actions. ( People v. Smith (2005) 37 Cal.4th 733, 741.)

K rueger argues that the evidence here, all of which is circumstantial, is insufficient to support a finding that she intentionally killed Kayleigh or58

harbored an intent to kill, and insufficient to support a finding that she tortured Kayleigh at or near the time of her death, as required for the special

circumstance. We have already explained that the record contains substantial evidence to support the finding that Krueger acted with a torturous intent, including near the time of Kayleigh’s death. The At torney General argues that the evidence that supports the finding of intent to torture also supports a finding of intent to kill. We disagree. The large number of bruises to Kayleigh’s body, including bruises to places other than her abdomen evidence t he intent to cause pain, but not necessarily intent to kill. Krueger’s failure to contact the police after Kayleigh’s death and her flight with Warner are evidence of consciousness of guilt and of premeditated conduct, but not necessarily evidence of inte nt to kill. Further, important pieces of evidence that support the finding of intent to torture are inconsistent with a finding of intent to kill. The phone searches about ways to get rid of bruises show awareness of the extent of Kayleigh’s injuries, bu t do not support an inference of the intent to kill Kayleigh. Likewise, the computer search for information about “stabbing pain next to bellybutton” shows awareness of Kayleigh’s suffering, but is more consistent with an attempt to ascertain that Kayleig h’s injuries were

not fatal than with the intent to kill. And other uncontradicted evidence, including evidence from both Krueger and Epperson that Krueger tried to make Kayleigh vomit after drinking tainted water, and the evidence that Krueger gave Kayle igh Pedialyte and popsicles to keep her hydrated, is inconsistent with an intent to kill, because it supports the inference that although Krueger wanted Kayleigh to be quiet and leave her and Warner alone, and took drastic steps to do so, she did not want Kayleigh to die.59

We conclude that the record does not contain substantial evidence to support a finding that Krueger acted with the intent to kill; in other words, we conclude that a reasonable jury could not be convinced that the only

reasonable conclu sion supported by the circumstantial evidence was that Krueger had the intent to kill, as required by CALCRIM No. 705, with which the jury was instructed. 24 Therefore we reverse the jury’s finding that the special circumstance was true. 25

c. Fatal Assault of a Child A conviction for assault on a child resulting in death requires proof that (1) a person, having the care or custody of a child under the age of eight, (2)

24 CALCRIM No. 705 instructs that before relying on circumstantial evidence to conclude that the defendant had the intent or mental state required for the special circumstance, the jury must be “convinced that the only reasonable con clusion supported by the circumstantial evidence is that the defendant had the required intent or mental state.” (Italics added.)

25 The record indicates that the jury puzzled over the issue of intent to kill. The jury posed three questions to the trial court on the second day of deliberations, all concerning the intent to kill as required for the special circumstance. On the morning of the second day, the jury submitted the following question: “We would like an explanation/definition of ‘intent to kil l’ as a mental state requirement in the special circumstance of torture.” A few hours later the jury submitted two more questions to the court: “Does blatant disregard for human life equal intent to kill?” and “Does withholding medical care for someone w ho is in severe distress equal ‘intent to kill’?” The jury stated that both questions concerned “intent to kill” as the required mental state under the special circumstance of torture. Krueger argues that the trial court erred in its responses, which, sh e says, allowed the jury to find the special circumstance without finding intent to kill in violation of her right to due process. Krueger further argues that, if we conclude that her trial counsel forfeited the claim of error, she was denied effective as sistance of counsel under the Sixth Amendment. Because we reverse the special circumstance finding for lack of substantial evidence, as discussed above, we do not reach these issues.60

assaults the child, (3) by means of force that to a reasonable person wou ld be likely to produce great bodily injury, and (4) resulting in the child’s death. ( § 273ab, subd. (a); People v. Malfavon (2002) 102 Cal.App.4th 727, 735.) Krueger concedes there is substantial evidence that Kayleigh’s death

was the result of an ass ault, specifically blows to her abdomen, but argues that the evidence is insufficient to support a finding that she personally assaulted Kayleigh or that she knowingly aided Warner in doing so. She suggests her conviction for fatal assault rests solely on her presence and opportunity before Kayleigh’s death and her flight after Kayleigh’s death, and argues that “mere opportunity” will not sustain the verdict, and that evidence of flight does not suffice to prove guilt. We disagree with Krueger’s charact erization of the evidence. As we have discussed, the record shows more than “mere opportunity” and flight. Krueger’s characterization disregards the evidence of her activities after Kayleigh’s death, which go beyond flight, and which suggest consciousnes s of guilt and shared intent with Warner. Krueger did not immediately flee. She refused to call the police. She went out with Warner to get ice cream, tried to dispose of evidence, packed a bag of Kayleigh’s clothes for her mother, negotiated a ride for herself and Warner to the bus station, accompanied Warner to the beach, and then laughed and snuggled with him on an airport tram. As we have discussed, although the evidence does not prove whether Krueger or Warner, or both of them, struck the fatal blo w or blows to Kayleigh’s abdomen, there is substantial evidence to support the finding that Krueger either struck the blow herself or aided and abetted Warner in the

assault.61

C

. Demonstration with Mannequin Over Krueger’s objection, the trial court al lowed the prosecutor to demonstrate that a mannequin the size of Kayleigh fit inside Krueger’s

freezer. 26 Immediately after the demonstration, Krueger moved for a mistrial. Krueger argues that the trial court abused its discretion in allowing

the demonst ration and denying her mistrial motion. Although we conclude that the trial court erred in allowing the demonstration, the error was harmless, and the court did not err in denying the motion for mistrial.

1. Additional Facts Krueger moved in limine to prevent the prosecution’s planned demonstration that a mannequin the size of Kayleigh could fit in the freezer compartment of Krueger’s refrigerator. The prosecutor argued that the demonstration was relevant to the intent to inflict extreme pain and th e intent to kill, and that the treatment of Kayleigh after she died “gives a pretty good indication of the intent while she was still alive.” In addition, the prosecutor claimed it was “pertinent to the jury instruction on hiding or detracting from the ev idence, which I believe this was in this case,” and to show that it was physically possible to place a figure Kayleigh’s size in the freezer. In particular, the prosecutor noted that Detective Hess had inferred that it was difficult to place the body in t he freezer, but “[i]n actuality the mannequin fits quite easily in the freezer compartment.” The prosecutor also argued that if the defense pathologist suggested that any of the bruises could have been caused by the act of

26 The prosecutor described the mannequin as “a nongender mannequin wit h no clothing and no features that are visible, sort of facial features or anything like that. [It is] ivory

- colored.”62

putting her in the freezer, it w ould be important “to show that and to have the [prosecution] pathologist comment on that issue.” The defense argued that the prosecution could accomplish its stated purposes with photographs and witness testimony. The demonstration, according to the d efense, would “unfairly focus[ ] .

. . attention on a bizarre aspect of the case that suggests, impermissibly, that the defendants are deranged and callous”; its purpose was “to inflame the jury against” Krueger; and it would “infect the proceedings with p rejudice.” The trial court denied the motion in limine, commenting that it had

reviewed the law on Evidence Code section 352 and considered both the probative value of the evidence and how it could be prejudicial. The court concluded, “I understand the Defense’s position, but this is probative.” The court stated it would allow the demonstration if it was “limited to a very short time of 10, 15 minutes.” The demonstration was carried out during Dr. Cohen’s testimony. After he testified about the aty pical pattern of lividity, which suggested that the body had been moved after death, and the injuries to the body, a mannequin the same length as Kayleigh was folded and placed in the freezer compartment of Krueger’s refrigerator. The prosecutor qualified his questions to Dr. Cohen by asking him not to “assum[e] that this is the exact way that Kayleigh’s body was put into a freezer,” and asked whether any of the marks or injuries were the result of Kayleigh’s placement in the freezer

after death. Dr. Cohe n testified that none of the injuries were caused by the placement after death, but that “livor mortis would be influenced by the specific position of the body and the changing, potential changing positions of the body after death.”63

Defense counsel then moved for a mistrial, contending that the demonstration was unnecessary, proved nothing, and served only “to inflame the passion of the jury.” The trial court denied the motion, stating, “I’ll note for the record that we have dealt with this issue previo usly. The refrigerator was requested to be brought in by the Prosecution to show the jury, it is the best evidence. I know you’ve requested it just be shown by way of a picture. They are entitled to show what actually happened or is alleged to have happ ened and it’s up to the jury to give that the weight they feel appropriate.

So the mistrial is denied.”

2. Analysis

a. Admissibility of Evidence Only relevant evidence is admissible at trial (Evid. Code, § 350), where 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.” ( Id.

, § 210.) Under E vidence Code section 352, a trial court may exclude relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice. For purposes of section 352, evidence is unduly prejudicial if it “uniquely tends to evoke an emotio nal bias against a part as an individual, while having only slight probative value with regard to the issues.” ( People v. Carter (2005) 36 Cal.4th 1114, 1168.) “Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent.” ( Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008.) A court may admit demonstrative evidence only where (1) the demonstration is relevant, (2) its conditions are substantially simila r to those existing at the time of the alleged occurrence, and (3) the evidence will not consume undue time or confuse the jury. ( People v. Rivera (2011) 20164

Cal.App.4th 353, 363 ( Rivera ).) The demonstration must be a “reasonable representation of that w hich it is alleged to portray,” but need not precisely duplicate the physical conditions of the actual occurrence. ( Ibid. ) “Mannequins may be used as illustrative evidence to assist the jury in understanding the testimony of witnesses or to clarify the c ircumstances of a crime.” ( People v. Cummings (1993) 4 Cal.4th 1233, 1291, overruled on a different issue by People v. Merritt (2017) 2 Cal.5th 819, 831.) We review trial court rulings on the admissibility of evidence for abuse of discretion and uphold a decision to admit demonstrative evidence under Evidence Code section 352 unless its prejudicial effect clearly outweighs its probative value. ( Rivera , supra , 201 Cal.App.4th at pp. 362

- 363.) We agree with Krueger that the trial court abused its discre tion in allowing the demonstration. Although the trial court could reasonably conclude that the demonstration was a reasonable representation of what it was meant to portray (a mannequin the size of Kayleigh’s body fit easily in the freezer, even if there was no evidence of exactly how Kayleigh’s body was folded), the probative value of the demonstration was minimal. Krueger admitted that Kayleigh’s body had been moved from the position in which it was found, and that Kayleigh’s legs were folded and her b ody was placed in a plastic garbage bag and then a suitcase, which then went into the freezer. And even though the demonstration might have been probative of Dr. Cohen’s testimony that none of Kayleigh’s injuries occurred after her death, as the Attorney General suggests, there was no suggestion, let alone evidence, to the contrary. We disagree with the trial court’s implicit determination that the demonstration was not unduly prejudicial. The demonstration was undoubtedly inflammatory, even though Kru eger’s admission that Kayleigh’s65

body was placed in the freezer undercut its prejudicial impact. Krueger argues that the demonstration here is at least as prejudicial as the

demonstration in Rivera , where our colleagues in Division One considered a

demons tration in which an adult defendant strangled an adult

- sized mannequin on the witness stand to show how a murder was committed. ( Rivera , supra , 201 Cal.App.at pp. 364

- 365.) The panel in Rivera found that “a demonstration of the murder by defendant in cou rt, before the jury, was inflammatory,” and that its prejudicial effect, “while not great, exceeded its comparatively inconsequential probative value.” ( Id. at p. 365.) We likewise conclude that in the circumstances here, the prejudicial effect of the

de monstration exceeds its minimal probative value. We also conclude, however, that it is not reasonably probable that Krueger would have obtained a more favorable result in the absence of the demonstration, and therefore the error was harmless. ( People v . Watson (1956) 46 Cal.2d 818, 836.) In view of Krueger’s admission that the body was put in the freezer and the extensive and uncontradicted evidence that Kayleigh was severely beaten, that her body suffered numerous injuries, and that she suffered great pain, and in view of the substantial evidence that Krueger inflicted those injuries or aided and abetted Warner in inflicting them, there is not a reasonable probability that the omission of the

demonstration would have led to a more favorable verdict for Krueger with respect to the verdicts for first degree torture murder and assault resulting in

the death of a child. 27 ( Id. at p. 836.) In that respect, too, this case is like

27 Because we are reversing the jury’s special circumstance finding for insufficiency of the evidence, we do not reach the question whe ther omission of the demonstration would have led to a more favorable verdict for Krueger as to the special circumstance.66

Rivera , where the Court of Appeal concluded that the demonstration, which

was “a visual repetition of defendant’s testimony” and “cumulative,” was ultimately harmless. ( Rivera , supra , 201 Cal.4th at p. 366.)

b. Motion for Mistrial “A trial court should grant a motion for mistrial ‘only when “ ‘a party’s

chances of receiving a fair trial have been irreparably damaged’ ” ’ [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation]. ‘Whether a particular incident is incurably prejudicial is by its nature a sp eculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of discretion. [Citation.]” ( People v. Avila (2006 ) 38 Cal.4th 491, 573.) Krueger argues that the trial court abused its discretion by bas ing its denial of the mistrial motion on a “mistaken factual finding that the demonstration showed ‘what actually happened

. ’ ” According to Krueger, the

trial court was mistaken because it disregarded the fact that the prosecution prefaced its question to Dr. Cohen by asking him not to assume that the demonstration was “the exact way Kayleigh’s body was put into a freezer.” This argument is meritless. What “actua lly happened” is that Kayleigh’s body was put into a freezer, as Krueger had told Detective Hess shortly after her arrest, and as Krueger testified at trial. Specifically, Krueger told Detective Hess that Kayleigh’s body was folded, put in a bag, and put into the freezer, and the point of the demonstration was, in part, to show that Kayleigh’s folded body would fit easily into the freezer in Krueger’s apartment without further damaging the body. It was error to admit the demonstration, because there was n o dispute that the body fit in the freezer and that Kayleigh’s injuries occurred before she died. But the demonstration67

was a reasonable representation of what it was alleged to portray: a demonstration or reenactment need not be exact in all respects. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1113

- 1115.) In sum, Krueger fails to show that she was harmed by the trial court’s denial of her motion in limine or that the trial court erred in denying her motion for mistrial. Accordingly, we reject Kr ueger’s argument that we must reverse the judgment and remand for a new trial.

D. Cumulative E rror Krueger argues that the trial court’s errors, taken together, require reversal of the judgment because they deprived her of her right to a fair trial. We shall reverse the special circumstance finding, as we discussed above. We have rejected Krueger’s other claims of error, except her claim concerning the demonstrative evidence, the admission of which we found harmless. Accordingly, we reject her claim of cumulative error.

DISPOSITION We reverse the special circumstance finding for lack of substantial evidence and remand the matter for resentencing. The judgment is otherwise

affirmed.68 _________________________ Miller, J.

WE CONCUR:

_________________________ Kline, P.J.

_________________________ Richman, J.

A152087, People v. Krueger