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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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 court erred in denying her Batson/Wheeler2 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 to 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, 2021, A152049) [nonpub. opn.]).

2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler

(1978) 22 Cal.3d 258 (Wheeler).
2

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 to 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 death 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 2017. 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 person 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 Body 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 morning 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 the 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 Warner 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 filled 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 “icecold.” 

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 wall. 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 was 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 phone 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 across the 

abdomen and the other by her side. 
5

When Krueger 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 Krueger 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 Jason 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 Jason 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 reconnected 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. 

Friends, 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 

own. 

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 apartment. 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 was 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 under 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 the 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.
8

Krueger 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 using 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 called, 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, though 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. Patterson 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 Kayleigh to 

the bathroom, making meals for her, and feeding her. One time when 
9

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 bathtub; 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 with 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 hour. 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

Several of Krueger’s neighbors in the apartment complex testified that 

after Warner moved into Krueger’s apartment, they saw Kayleigh playing 

outside less often 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 testified 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 laughing 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 can 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. After 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 whether it was illegal to argue. Chambers explained that someone had 

reported a loud argument in her apartment, and he wanted to make sure 
12

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 

using 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 Kayleigh 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, scanning 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, which 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. 

Epperson 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 

she had been prescribed Percocet and Tramadol, which she took 

“occasionally.” 
14

care of, and that Kayleigh told him, “I’m so happy 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 head. 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 

went 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 poison 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 apartment, 

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, telling 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 Krueger 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 little 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 were 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 methamphetamine 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 started 

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 interview 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 police that she had put the measuring cup on the stove. 

The parties stipulated that a measuring cup found in the kitchen of Krueger’s 
17

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 wanted 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 Kayleigh 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 could 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. Warner 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 

Warner’s friends, who Krueger knew to be a high-ranking gang member and 

apartment bore 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 bed 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 and 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 hungry. 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 her 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 her 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 eyebrow 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 Warner 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 both she and Warner had given Kayleigh baths. 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. 

Asked 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 apartment 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 the 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 Warner 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 she 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 saw 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 

Kayleigh 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 were 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 

individual 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 scalp, 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-Jakubiak 

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 consistent 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 wall 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 intestine 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 caused 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. The 
23

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 her 

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 in 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 would 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 injury 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 of 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 injuries; 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 stop 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 

indicated 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 noted 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. Detective Hess testified that 

Krueger appeared calm in the video. He noted that the video shows Krueger 
25

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. Hess 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 personnel 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 bellybutton,” 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 

January 24, there were continued searches on the same topics. On January 
26

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, including 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 that 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 asked 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 

appointment 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 periods 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 Witnesses

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 January 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 after 
28

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 day. 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 arguments 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 delivered 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. She 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 argue 
29

because Krueger thought that was too long, 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 beginning 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 Warner 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 telephone 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 Warner 
30

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

around. 

Krueger and Warner had verbal arguments almost daily from midDecember 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 pack 
31

his things and leave while 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 because 

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 had 

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.” After 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 

day 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 was 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 that 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 forehead. 

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, giving 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 had 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. She 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 she 
34

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 Kayleigh 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 trial 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 

cream. 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 Krueger 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 Valdez 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 bed, 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 Vallejo, 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 when 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 messages, 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 said 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 seriously 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 Warner 

because he thought Warner should be working. In January 2014, Krueger 
37

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 services (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 from 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 Linda 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 enhanced 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, including intimate 

partner battering, and who suffers a traumatic event, like finding their child 
38

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 describe 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 state 

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, Kayleigh’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, physical and verbal abuse from her father, being molested 

multiple times by a boyfriend’s father, being the victim of a rape by two men 
39

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, including 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 interviewed 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 behavior 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 dissociation.

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 

possibility 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. Additional 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 issue 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 Fairfield. 

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 hoping 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 about 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 two 
41

sides to every story. I always felt like that, 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 attorneys 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 

step 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 hospital 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 her 
42

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 witness 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 thinking 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 has 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 gruesome 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 verdict. [¶] 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 several 
44

people who have been excused that 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 asked 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 interests 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 Constitutions 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 primary 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 burden 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 record 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 the 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 member 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 necessarily 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 voir 
46

dire and any jury questionnaires, to determine whether substantial 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 showing 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 prosecution struck all, 

20 If 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 consideration 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 court’s statement that there was another 

African American juror on the panel when D.B. was challenged. The record 
47

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 difficulty 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 case “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 remained 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 trial 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 ethnic 

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 ruling. (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 shall 

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 favorable 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 

defendant’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 warrant 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 purpose.” (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’s 
51

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

proved 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 that 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 sadistic 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] commission 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 

suffered 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 Krueger, 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 marks 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 supervision of Kayleigh. 
53

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

inferred that 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 heard. 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.

Krueger 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 bruises. 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 Kayleigh’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 repeated 

episodes of blunt-force trauma, were “far beyond” what would commonly be 
54

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. In 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 evidence 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 her 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 tired, 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 the 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 the 
55

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 even 

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 bruising, 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 death. 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 ice 
56

cream, and conduct a search for high-population U.S. cities, suggesting she 

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 with 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 the 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 from 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 of 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 evidence 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 torture 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 purpose 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. Jennings (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.) 

Krueger argues that the evidence here, all of which is circumstantial, is 

insufficient to support a finding that she intentionally killed Kayleigh or 
58

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 Attorney 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 the 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 intent 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, but 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 Kayleigh’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 Kayleigh 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 conclusion 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 conclusion 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 kill’ 

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 who 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, she 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 assistance 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 would 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 assault, 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 characterization 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 consciousness 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 blow 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 allowed 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 demonstration 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 the 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 evidence, 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 the 

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 

with 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 would 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 defense, 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 prejudice.” 

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 atypical 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. Cohen 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 previously. 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 

happened 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 Evidence 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 emotional 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 similar 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) 201 
64

Cal.App.4th 353, 363 (Rivera).) The demonstration must be a “reasonable 

representation of that which 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 circumstances 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 discretion 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 body 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 Krueger’s admission that Kayleigh’s 
65

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 

demonstration 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 court, 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 

demonstration 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 whether 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 speculative 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 basing 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 “actually 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 no dispute that the body fit in the freezer 

and that Kayleigh’s injuries occurred before she died. But the demonstration 
67

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 Krueger’s argument that we must 

reverse the judgment and remand for a new trial.

D. Cumulative Error

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