People v. Chavoya

Full title: THE PEOPLE, Plaintiff and Respondent, v. AMY LOUISE CHAVOYA, Defendant and…

Court: California Court of Appeals, Fifth District

Date published: Dec 15, 2022

No. F081343 (Cal. Ct. App. Dec. 15, 2022)

Opinion

F081343

12-15-2022

THE PEOPLE, Plaintiff and Respondent, v. AMY LOUISE CHAVOYA, Defendant and Appellant.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, J.

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Madera County No. MCR052752), Mitchell C. Rigby, Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

POOCHIGIAN, J.

INTRODUCTION

Appellant and defendant Amy Louise Chavoya (defendant) was convicted after a jury trial of count 1, first degree felony murder of her 12-year-old adopted daughter, M.F. (Pen. Code, § 187, subd. (a)),¹ committed in the perpetration of torture in violation of section 206; counts 2 and 3, torture (§ 206) of both M.F. and C.F., who was defendant's 13-year-old adopted son and M.F.'s biological sibling (ibid.); and counts 4 and 5, felony infliction of unjustifiable physical pain and mental suffering on both M.F. and C.F. under circumstances likely to cause great bodily harm (§ 273a, subd. (a)), with great bodily injury allegations for counts 4 and 5 (§§ 12022.95, 12022.7).²

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2 The two minor victims in this case are M.F., who was murdered, and her biological brother, C.F., who survived and testified at trial. Prior to their adoption, the two minors were known as I.O. and C.O., and some of the witnesses used these names during their trial testimony. For the sake of consistency, we will refer to the victims as M.F. and C.F.

Defendant was sentenced to 25 years to life for first degree murder, plus two consecutive life terms with the possibility of parole for the two counts of torture.

The Victims

C.F. was eight years old and M.F. was seven years old when they were placed as foster children in the home of defendant and her husband in 2010. Defendant also had three minor biological children and adopted C.F. and M.F. in February 2014. C.F. and M.F. initially attended the same elementary school, and M.F. was in special education classes.

As was later revealed, defendant brutally "punished" M.F. and C.F. for virtually the entire time they lived in her house, for violating her "rules" that they could not eat without permission and had to clean the house. Her "punishments" consisted of withholding food; beating them with her hands, fists, and a belt; forcing them to run laps in the backyard for hours; forcing them to stand in front of a wall for hours; and pushing their heads into the home's interior walls with such force that it created dents and holes. C.F. said defendant used a knife to stab him in the back and cut his legs and used a Taser-like device on his skin to shock him. Defendant did not have the same "rules" for her biological children and did not inflict such "punishments" on them.

Between 2010 and 2014, the staff at M.F.'s elementary school filed approximately 30 referrals with the Madera County Department of Social Services, Child Welfare Services (the department),³ about suspected child abuse of M.F., and reported the girl came to school with bruises all over her body, black eyes, and strange marks and scabs on her stomach and back, later found consistent with the scars on C.F.'s body from the Taser-like device. Most of these reports were either not investigated or deemed unsubstantiated because C.F. and M.F. were interviewed, sometimes in defendant's presence, and said they were not being abused. Defendant repeatedly told the school and social workers that C.F. inflicted the injuries on M.F. and/or M.F. engaged in self-harming behavior, even though the school staff never saw any incidents where C.F. harmed M.F. or the girl harmed herself. C.F. also obeyed defendant's orders to tell the school that he inflicted some of his sister's injuries.

3 Nearly all the witnesses referred to this department as "CPS," using the common abbreviation for "child protective services." All references to "CPS" or "the department" are to Madera County's Department of Social Services, Child Welfare Services.

At one point, the department "accidentally" sent a confidential report to defendant, revealing the identity of the teacher who filed one of the abuse referrals. Defendant complained she was being harassed, but the dedicated staff at M.F.'s school continued to file child abuse referrals as the girl's injuries became more frequent and serious, and they tried to protect her. In August 2014, however, defendant removed M.F. from public school and began to homeschool her, and the staff was concerned for her safety.

Also in 2014, M.F.'s physical injuries became more serious during the same time period that defendant took C.F. to numerous hospitals and emergency rooms, falsely claimed he injured his arm, and requested and received multiple prescriptions for opioid medications.

Death of M.F.

On October 10, 2014, M.F. became unresponsive at defendant's home, emergency personnel rushed her to the hospital, and she died shortly after arriving in the emergency room. The autopsy revealed the girl's body was riddled with external bruises and injuries, internal bleeding under her scalp, and a prior abdominal internal injury to her mesentery. She died as a result of fatal internal bleeding in the same area of the mesentery, inflicted by blunt force trauma to her abdomen.

After M.F.'s death, defendant gave multiple statements, some of which were inconsistent, and claimed the girl regularly harmed herself, and she had a "tantrum" and threw herself onto a wooden bedpost in her room shortly before she died. The pathologist, coroner, and law enforcement authorities initially concluded the child's death was accidental, consistent with defendant's account. C.F. and the other children remained in defendant's house and defendant continued to inflict the same type of "punishments" on C.F., who feared he also would be killed.

Disclosures About Defendant's "Punishment"

A few months after M.F. died, a social worker reviewed the autopsy report, believed her death may not have been accidental and should be investigated, and discovered the numerous child abuse referrals made by M.F.'s school.

In March 2015, as a result of the renewed investigation into M.F.'s death, C.F. was removed from defendant's custody, along with her biological children, and they were placed in foster care. Defendant had regular visitations with them and directed C.F. to tell investigators he inflicted physical injuries on M.F. shortly before her death. Later in 2015, L.F., defendant's biological daughter, revealed defendant had physically abused C.F. and M.F. for years. C.F. realized the visits with defendant had ended and disclosed defendant's physical "punishments," and C.F. and L.F. also revealed defendant beat M.F. on the night she died.

At trial, the defense attacked C.F.'s credibility, and asserted all of M.F.'s nonfatal and fatal injuries were either inflicted by C.F., or by the girl herself because she allegedly engaged in self-harming behavior, and that C.F lied about defendant's abuse because he thought he was going to be blamed for his sister's death. The prosecution introduced voluminous evidence to corroborate nearly every aspect of C.F.'s testimony, including photographs of the scars on his body from defendant's infliction of abuse; testimony from other family members who saw defendant beat M.F. and C.F. in the house, and never saw the children harm themselves or each other; testimony from members of the school staff, who gave lengthy details about the chronological history and reports about the bruises and injuries they saw on M.F.'s body, and similarly testified the children never harmed themselves or each other at school; and the discovery of the numerous dents and holes in the interior walls of defendant's house that contained the DNA profiles of C.F. and M.F., and still existed when the house was searched a year after M.F.'s death.

The prosecution also corroborated C.F.'s testimony about going to numerous hospitals and falsely claiming he had arm pain, by introducing detailed medical records that showed that 30 prescriptions for opioids were given to him, and on two occasions defendant took him to two hospitals on the same day when the first visit failed to result in an opioid prescription.

Appellate Contentions

On appeal, defendant contends there is insufficient evidence as a matter of law to support her conviction for first degree felony murder of M.F. committed in the perpetration of torture in violation of section 206, and the two convictions for the torture of M.F. and C.F. in violation of section 206. She contends the facts of this case amounted to a "child abuse case charged as torture," the prosecutor "conflated torture with child abuse," and the elements of torture are not supported by substantial evidence.

As will be explained, the commission of torture in violation of section 206 has two elements: (1) defendant inflicted great bodily injury upon the victim within the meaning of section 12022.7, and (2) defendant did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. (People v. Baker (2002) 98 Cal.App.4th 1217, 1223.)

We will order amendment of the abstract of judgment and minute order to correct a clerical error at the sentencing hearing, and otherwise affirm the judgment and find defendant's convictions are supported by substantial evidence that she inflicted great bodily injury upon the children, and she did so with the specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, persuasion, and a sadistic purpose, based on overwhelming evidence about how she treated these children and falsely portrayed them to teachers and social workers.

PART I ⁴

4 The factual statement will be presented in multiple parts and chronological order of what defendant inflicted upon these two victims, addressing the lengthy case introduced at the nearly four-month jury trial.

THE CHILDREN'S LIVES BEFORE THEY WERE PLACED WITH DEFENDANT

Monique O. was the biological mother of the two victims in this case: a boy, C.F. (born August 2001), and a girl, M.F. (born August 2002).⁵

5 Monique was not alleged to have committed any acts of child abuse in this case. Her testimony is provided as background for the children's physical conditions prior to being placed as foster children in defendant's home, and to refute defendant's claims that they had a history of inflicting physical injuries upon each other, engaging in self-harming behaviors, or M.F. regularly ate non-food items.

The prosecution's pathology expert reviewed M.F.'s medical history and testified the girl was born at full term, she was a healthy baby of normal weight, and Monique did not test positive for drugs or alcohol during her pregnancy. There was no evidence of growth impairment, fetal alcohol syndrome, or drug exposure in utero, and no evidence of fetal alcohol syndrome as M.F. grew up.⁶

6 As will be set forth below, C.F. testified that defendant would not let C.F. and M.F. eat food at her house, and the staff at M.F.'s school testified M.F. complained about being hungry and looked through the garbage for food. M.F. received several "well-child" examinations while in foster care, and her weight was often on the lower range for a child her age. Defendant falsely told teachers, social workers, medical professionals, and law enforcement officers that M.F. tested positive for drugs at birth and had fetal alcohol syndrome, a condition that may stunt a child's growth. Defendant's false assertions were accepted as explanations for the girl being in the lower range for her age in both height and weight.

The children went to school together. They were described as inseparable and very close, almost like twins, and C.F. would protect his sister from bullies at school. C.F. testified that M.F. had a speech impediment and "said certain words differently," he was used to it and understood her, and sometimes he helped her communicate with other people.

Monique never saw C.F. or M.F. engage in any self-harming behavior. The children engaged in normal play and Monique never saw them hurt each other. There were a few times when M.F. ate a "pinch full" of dirt when the children were playing. M.F. did not require a doctor's care except for checkups and shots.

Removals of the Children

In approximately 2008, when C.F. was seven years old and M.F. was six years old, the children were removed from Monique's custody because she could not take care of them. They were placed in the foster home of defendant's parents, Irene and Manuel Chavoya (Irene and Manuel).⁷ C.F. testified that nothing negative happened when they lived with Irene and Manuel, and they had minimal interactions with defendant and her family.

7 Defendant's parents were not implicated or charged in the abuse of C.F. and M.F. There were three other foster children in their home, including M.M., who was later adopted by Irene and Manuel. M.M. testified for the prosecution and corroborated some of C.F.'s details about defendant's infliction of abuse.

In 2009, while the two children were in foster care with Irene and Manuel, M.F. had a "well-child exam" at Primary Care Consultants in Madera. M.F. was in good health and did not have any scars on her body. There were concerns that M.F. was not speaking, and she was scheduled to be evaluated by Central Valley Regional Center.

After the reunification period, Monique regained custody of C.F. and M.F. About six months later, the two children were again removed because a neighbor reported that Monique hit M.F. The children were placed in foster care with defendant's parents.

Monique regained custody of the two children, and had another child, G., in 2010. Shortly after the birth, G.'s father punched Monique and the baby suffered bruises. In June 2010, as a result of this incident, the three children were removed from Monique's custody for the third and final time. The children were going to be placed with defendant's parents again, but they declined to accept them.

In June 2010, C.F., M.F. and G. were placed with defendant and her husband as foster children. Monique had weekly visits with her children. She never interacted with defendant or her husband, and she did not go to their residence.

Monique testified that when M.F. was placed with defendant, the girl's ability to speak and communicate was "a little bit better," but she was still hard to understand when she was excited. During Monique's visits with the children, C.F. did not have to "interpret" for M.F. as much as before, but M.F. was still frustrated with her inability to communicate and would "shut down." On those occasions, M.F. would stay quiet and then get back to normal within a few minutes. Aside from her speech issues, M.F. seemed to be developing as a normal child, and Monique described her personality as "bubbly."

Monique lost her parental rights after testing positive for drugs. Her visitations ended, and she learned the children would be adopted by defendant and her husband. Her final visit with the children was in May 2011, and she never saw them again while they lived with defendant.

PART II

PLACEMENT OF THE CHILDREN WITH DEFENDANT AND HER HUSBAND

On June 11, 2010, C.F., M.F., and G. were placed as foster children in the home of defendant and her husband, Gerardo Flores (Gerardo or Jerry).⁸

8 There were no allegations or evidence that G. was the victim of any abuse while living in defendant's home.

Defendant was not employed outside the house. Gerardo was a deputy sheriff for San Joaquin County and worked in Stockton. Gerardo was not home for several consecutive days and nights because of his work schedule, and he often stayed overnight at a residence in Stockton.⁹

9 As will be discussed below, Gerardo was not charged in this case.

Physical Examinations of C.F. and M.F.

On June 16, 2010, a nurse practitioner conducted physical examinations of C.F. and M.F. These examinations served as benchmarks for what happened to the children's bodies in the following years.

C.F. was eight years 10 months old, five feet tall, and weighed 60 pounds. He was alert, well developed, well nourished, healthy, and cooperative. He appeared very mature for his age and appeared to perform the role of being a parent for his siblings. The nurse practitioner testified that C.F. had a few healed injuries on his body that were consistent with being an "active kid," and there was no evidence of physical abuse.

M.F. was seven years 11 months old, almost four feet tall, and weighed 46 pounds. She was well developed, well nourished, healthy, alert, and cooperative. She had a speech delay and it was a little difficult to understand her, but the medical report stated she was "being followed in school for this." She had some "normal childhood bruises" and there were no other injuries on her body.

Defendant's Home

Defendant and Gerardo lived in a three-bedroom, two-bathroom house in the Madera Ranchos with their three minor biological children: sons J.F. (born 1997) and A.F. (born 2007), and a daughter, L.F. (born 2004).

The home's front door opened into the living room. A hallway led from the living room to the bedrooms; a bathroom was located adjacent to the hallway.

The house had three bedrooms: a master bedroom with an attached bathroom; a blue bedroom with bunk beds, identified as C.F.'s bedroom; and a bedroom with a "princess" theme, identified as M.F.'s bedroom.

A tile entrance led from the front door, past the living room, and into the kitchen and dining/playroom area.

C.F. testified that when he first moved in with his siblings M.F. and baby G., things were okay, and "I had a bed to sleep in at night and food to eat." He initially slept in a bedroom by himself, while his foster brother, J.F., slept on a mattress in the living room. C.F. and J.F. later shared the bedroom with the bunk beds. Sometimes defendant slept on the mattress in the living room, along with the younger children, L.F., A.F., and G.

C.F. and M.F. adjusted well to living with defendant's family. The foster and biological children liked each other and there were no conflicts between them.

The Children's School

In August 2010, C.F. and M.F. began attending Webster Elementary School (Webster Elementary) in Madera. C.F. was nine years old and in the third grade. M.F. was eight years old and in the second grade. She was placed in a special education class because of her speech issues and remained in these classes during her four years at that school.

On February 7, 2014, the adoption of C.F., M.F., and G. by defendant and Gerardo became final.

PART III

C.F.'S TESTIMONY ABOUT DEFENDANT'S "PUNISHMENT" OF THE CHILDREN

C.F. lived in defendant's house from June 2010 to March 2015, when he was in the third through seventh grades. When he testified at defendant's trial in October 2019, C.F. was 18 years old, a high school senior, and no longer in foster care.

C.F. extensively testified about defendant's "punishment" and infliction of physical abuse on his biological sister, M.F., that began in approximately 2011, when she was nine years old, and ended with her murder in October 2014, when she was 12 years old. He also testified about the "punishment" and abuse defendant inflicted on him that similarly began in approximately 2011, when he was 10 years old, continued after M.F.'s death, and only ended with his removal from the house in March 2015.

When C.F. testified at trial about the abuse, he had trouble remembering certain details and incidents because he tried to "block it all out." C.F. said it was hard for him "to deal with everything that I've been through," and he didn't "understand how a sane person can abuse me and my sister the way that [defendant] did." C.F. never revealed defendant's abuse to anyone because he felt under her "manipulation," and there was nothing he could do to stop her.

As will be explained, defendant repeatedly claimed to social workers and teachers that both C.F. and M.F. fought with each other, they each engaged in self-harming behavior, and C.F. was responsible for the visible injuries on M.F. At trial, however, C.F. testified that he never engaged in self-harming behavior, hit his head against the wall, or scratched or punched himself. He never punched or harmed M.F., and M.F. never did anything to hurt him. C.F. never saw M.F. harm herself in any way or throw herself against the bedpost in her room.

The Beginning of Defendant's Infliction of Physical Abuse

C.F. testified defendant would discipline C.F. and M.F. if they violated her "rules" - that they failed to clean the house, or they took food without asking permission. Defendant did not tell C.F. and M.F. about these rules, and instead the siblings learned the rules if defendant found out they ate something or failed to clean the house, and then inflicted punishment on them. Defendant did not have these same rules for her three biological children and did not punish her own children the same way.

Defendant did not hit M.F. and C.F. when they initially moved into the house. If they misbehaved or violated her rules, defendant would send them to their separate bedrooms for timeouts, and C.F. and M.F. never resisted her orders.

Defendant's behavior toward the two siblings gradually began to change, and defendant showed a temper and started to hit both C.F. and M.F. C.F. believed the physical abuse began after defendant realized the siblings were not going back to their biological mother.

If C.F. or M.F. took food without permission, they would eat outside and try to hide the wrappers. If defendant found the wrappers and realized they ate food, she would punish them by making them clean the entire house.

C.F. testified that as time went on, defendant began to punish M.F. and C.F. by hitting or kicking them. She hit the two children everywhere on their bodies, including on their heads, torsos, and legs.

Increasing Seriousness of Physical Abuse

Defendant's physical discipline against both C.F. and M.F. grew progressively worse over time and increased in frequency, duration, and cruelty. C.F. testified that M.F. had been a happy girl who was always excited about things. As defendant's abuse became worse, M.F. "still tried to be as happy as much as she could," but she "definitely became quieter."

C.F. testified that defendant never physically abused the siblings when Gerardo was home. C.F. was scared when Gerardo was gone for work because that meant C.F. and M.F. would be alone with defendant. C.F. had a good relationship with Gerardo but never told him what defendant did "[b]ecause … I knew he wouldn't believe me. He doesn't believe me now. Why would he believe me then?"

C.F. never tried to fight back when defendant physically abused him. Sometimes he tried to run away, but defendant yelled at him to come back, and he obeyed because he was afraid of being beaten.

C.F. testified about defendant's specific and distinct forms of "punishment" she inflicted upon the two children.

Withholding Food

C.F. testified that defendant's most common form of punishment was to withhold food from both siblings. Defendant did not allow C.F. and M.F. to eat regular meals if they were in trouble for violating her rules, and they frequently did not get enough to eat when they lived in the house.

Defendant's Use of the "Taser" on C.F.

C.F. testified that defendant punished him by "tasing" him with a device that he called a "taser."

C.F. described the object as "a black stick Taser." Defendant would put the end of the Taser against his skin. The barrel looked like "the end of a flashlight," there were springs "around the flashlight" part, and the "voltage part" came out of that end. C.F. testified that the Taser did not shoot darts, and agreed with defense counsel's description that it was "a 'touch taser.'" Defendant kept the Taser in a box that was stored under the sink in the master bathroom.

C.F. was not sure how many times defendant punished him with the Taser, but believed it started when he was in the fifth grade and continued when he was in the sixth grade.

C.F. thought defendant first used the Taser on him when he was in trouble for something. He was in the master bathroom with defendant, she pulled out the Taser and shocked him, and he fell to the floor. He could not remember anything else about the first incident. When defendant used the Taser on his skin, C.F. could smell "[m]y skin burning." The Taser left marks on his body that were covered by his clothes.

Tasing C.F.'s Shoulder in the Master Bedroom

C.F. testified about a specific "tasing" incident after the first time, when he was in the sixth grade and probably 12 years old. Both siblings got in trouble for taking food. C.F. and M.F. were in the living room and defendant yelled at them.

Defendant retrieved "the Taser" from under the sink in the master bathroom. Defendant tased him directly on the skin of his upper left shoulder, and his skin burned. Defendant yelled at C.F. not to touch her when she tased him because she would get electrocuted, and "it would tase her too." When defendant held the Taser to his skin, C.F. was shaking and fell to the floor; M.F. ran out of the bedroom.

Defendant eventually stopped using the Taser on C.F. but told him to send M.F. into the master bedroom. C.F. could not get up and had to stay on the floor for a little while. Once he got up, he went into the living room and told M.F. to go into defendant's bedroom. M.F. went into the master bedroom and the door was closed. C.F. heard defendant yelling at M.F. about taking food. M.F. eventually walked out of defendant's bedroom and she was crying. C.F. could not remember if defendant used the Taser on M.F.

When C.F. went to school after this incident, no one saw the tasing mark on his shoulder because it was covered by his shirt. He did not tell anyone what defendant did because he was scared.

Tasing C.F.'s Arms and Buttocks

C.F. testified about another time when he was in the master bedroom with defendant. Defendant told him to lift his shirt, and she tased the skin on both arms, in the area between his shoulder and elbow. C.F. started to fall to the floor. Defendant tried to hold him up but also told C.F. not to touch her. Defendant let him go and C.F. collapsed on the floor. Defendant made him stand up, ordered him to lower his pants and underwear, and she used the Taser on his buttocks.

Tasing C.F.'s Tongue and Mouth

C.F. testified about another incident when C.F. and M.F. were cleaning the living room and looking for the charger for an iPad. Defendant was yelling that they were dumb because they could not find the charger. Defendant punched and kicked C.F. in the face and stomach. C.F. tried to back away from defendant, but she was larger than him and he could not escape. Defendant kept punching C.F. and threw him onto the mattress on the living room floor. Defendant told M.F. to get the Taser. C.F. testified that M.F. obeyed defendant, got the Taser from the master bathroom, and gave it to her.

C.F. was laying on his back on the mattress. Defendant sat on top of C.F., straddled his body with her legs, and pinned his arms to his sides. Defendant told C.F. to open his mouth and stick out his tongue, and "she started tasing my tongue because she said I was being a liar."

C.F. was screaming because his tongue was burning and became numb. The Taser got wet from C.F.'s mouth and stopped working. Defendant shoved the Taser "down the back of my mouth" and throat. C.F. could barely breathe, his throat started to bleed, he spit up blood, and defendant stopped.

As defendant shocked his mouth, the back of C.F.'s head fell off the end of the mattress, his head hit the floor and split open, and he started to bleed. Defendant got off C.F. and told him to clean his mouth in the bathroom. Defendant wrapped his head wound with gauze and did not take him for medical attention. C.F.'s mouth and throat hurt after this incident. This incident happened during the summer when he was not going to school. He did not tell anyone because he was scared.

Other Tasing Incidents

C.F. testified that defendant used the Taser on him more than these occasions. During the other incidents, defendant used the Taser on his arm and buttocks, and he considered the other incidents less severe.

Photographs of Taser Marks on C.F.'s Body

The prosecution introduced photographs of C.F.'s body, taken during the criminal investigation in December 2015. C.F. testified that these photographs showed marks on his body that were still visible and inflicted by defendant when she used the Taser on the skin of both arms, left shoulder, back of his left arm, left biceps, his back, and eight separate Taser marks on his buttocks.

C.F. testified that the Taser marks on his body looked like "[l]ittle burns…. Little bug bites or something," and were raised or higher than the rest of his skin. He could not remember the specific incidents when defendant inflicted each Taser mark. C.F. never told any physician that he had marks on his body from a Taser.

Possible Use of Taser on M.F.

C.F. could not remember if defendant used the Taser on M.F., or if he heard it being used on her, but testified that defendant inflicted physical punishment on M.F. on a regular basis.

As will be explained below, M.F.'s teachers saw marks on her stomach and back that were similar to those seen in the photographs of C.F.'s body, that he identified as Taser marks. The autopsy of M.F. in October 2014 also revealed numerous scars and marks on her body similar to the Taser marks on C.F.'s body.

Physical Assaults

C.F. testified that defendant would punish him by hitting him with her fists, shoes, belts, and other objects. Defendant often used a belt to hit him on the arm, leg, rear end, and other places on his body. It was more common for defendant to use the belt against C.F. compared to the Taser.

C.F. recalled an incident that occurred after defendant started to use the Taser on him. C.F. got into trouble, defendant hit him with a shoe, and she said, "[T]hat wasn't hurting [C.F.] enough so she got the belt and started hitting me with the belt," and the metal buckle hit "the top of my head and split my head open." Defendant wrapped C.F.'s head in gauze and did not get medical care for the head injury. C.F. identified photographs taken of him during the criminal investigation in December 2015, that showed the scar on his head from this injury.

C.F. testified that defendant also scratched his body with her fingernails so often that he could not recall any specific incidents. Defendant scratched C.F. when he was either standing against a wall or lying on the floor. The scratches left marks on C.F.'s stomach. He reviewed photographs taken of his body during the criminal investigation and identified marks on his stomach and back as scratches that were inflicted by her.

C.F. testified that he saw defendant slap, punch, kick, and scratch M.F., hit M.F. with her fists, inflict bruises on her face and arms, and hit her with a belt. C.F. could not recall the details of any specific incident.

Defendant's Photographs of C.F.'s Facial Injuries

The prosecution introduced two photographs of C.F. that were found when defendant's cell phone was searched pursuant to a warrant. One picture showed he had a bloody nose, and the second picture showed his nose was swollen.

C.F. testified defendant took these photographs with her cell phone on separate dates. He testified that defendant inflicted the injuries, they were home when the photographs were taken, and she never said why she took the pictures. C.F. thought he was 11 or 12 years old when he had the bloody nose, and it happened in 2013 or 2014. He was 13 years old when the photograph of his swollen nose was taken.

Assaults with a Knife

C.F. was not aware of any incident where defendant used a knife on M.F. However, C.F. testified that defendant cut him with a knife twice.

Defendant Stabs C.F. in the Back

On one occasion, defendant started to hit C.F. because he was in trouble for something; he could not remember what he had done. Defendant hit C.F.'s nose and it started to bleed. Defendant ordered him to clean his nose in the bathroom. Defendant became angry because he was making a mess and was not cleaning up fast enough.

Defendant walked into the bathroom, and she was holding a steak knife with a black handle. She put the knife against C.F.'s back and ordered him to clean himself faster and better. As C.F. tried to do so, defendant suddenly stabbed him in his back with the knife. The knife went straight in and out of his back. C.F. became numb, lost consciousness, and fell to the floor. When he woke up, he was lying face-down on his bedroom floor and defendant was putting a Band-Aid on his back. He did not know how he got into his bedroom. Defendant did not take him for medical care or stitches for this bloody wound.

C.F. identified a photograph taken during the criminal investigation that showed the scar on his back from the knife wound.

Defendant Cuts into C.F.'s Legs

C.F. testified about a different incident when defendant was mad at him because he was in trouble for something. Defendant handed a steak knife to C.F. and told him "to cut myself because I deserved it." C.F. was wearing shorts, and lightly scratched his thigh with the knife because he was afraid to cut himself. Defendant became angry, and yelled he was stupid and could not do anything right. Defendant grabbed the knife and cut into both his right and left thighs, and it hurt and burned. C.F.'s thighs were bleeding and he tried to clean the wounds. Defendant did not take him for medical care for these bloody wounds. C.F. believed this incident occurred sometime after defendant put the Taser in his mouth.

C.F. identified photographs taken of him during the criminal investigation, that showed the wounds on his legs from defendant cutting him with the knife.

Running Laps

C.F. testified that defendant forced him to run laps around the trees in the family's backyard if he got in trouble. He had to run between one to three hours without stopping, and defendant watched from the kitchen window. If he slowed down or tried to stop, defendant knocked on the window, and pointed and made a circular motion with her finger to tell him to keep running. These incidents occurred more than once, usually during the day, but defendant also made C.F. run laps at night.

Defendant also made M.F. run laps around the backyard as punishment more than one time. On some occasions, defendant ordered both C.F. and M.F. to run laps together for over one hour. Defendant always watched them, and if M.F. slowed down or tried to stop, defendant also gestured to her to keep running. C.F. would encourage M.F. to keep going when she got tired.

Law Enforcement Response When C.F. Started Yelling

One time when he had to run laps, C.F. started yelling and screaming in the backyard and a neighbor reported it. After reviewing a police report, C.F. confirmed that on July 8, 2014, an officer responded to defendant's house because of this incident. C.F. spoke to the officer, but did not reveal what was going on because he was scared of defendant and knew she would beat him if he said anything. C.F. told the officer that he wanted to stay with his mother (referring to defendant).¹⁰

10 The prosecution did not introduce evidence as to who made the July 2014 call to law enforcement.

Forcing C.F. to Sleep Outside

C.F. testified that defendant made him sleep outside twice. He remembered an incident when defendant got mad and told him to strip down to his underwear, made him go into the backyard, and forced him to sleep outside all night. It was a cold night in the fall, and M.M. (defendant's adoptive sister) was visiting the family. C.F. sat outside on the patio all night, barefoot and in his underwear, and he did not eat or sleep. C.F. could hear the rest of the family inside the house, laughing and playing, and no one checked on him. When defendant left the house in the morning, J.F. (defendant's biological son) let C.F. back into the house. M.M. and the other children were present when he came inside.

C.F. did not testify as to whether defendant forced M.F. to sleep outside, but as will be discussed, L.F. (defendant's biological daughter) testified that she knew M.F. was forced to sleep outside.

Standing All Night

C.F. testified that defendant used another form of punishment by preventing C.F. and/or M.F. from sleeping all night if they ate without permission or failed to clean the house. Defendant instructed each child to put plastic grocery bags on their bare feet like socks and tie the bags around their ankles with double knots. Defendant then made the child face the wall and stand still for the entire night. If the child moved, the plastic bags would make noise, and she would yell at them to stop moving around.

C.F. testified that defendant punished him this way more than once, and perhaps more than 10 times, but he could not describe a particular incident. This was one of defendant's most common ways to punish both siblings. There were other people in the house when they had to do this, and they were sleeping and did not help them.

Pushing the Children's Heads into the Wall

In addition to standing up all night, C.F. testified defendant also punished C.F. and M.F. by forcing one or both of them to stand in the hallway with their noses against the wall. She made them remain in that position, yelled at them, and, as she walked past them, she held the back of their heads and pushed their faces into the hallway wall.

Defendant slammed C.F.'s head with such force that his head left dents and holes in the walls throughout the house. Defendant told C.F. to put up a wall hanging to cover one of the holes. C.F. testified that he had to "stand against the wall so many times" that he did not know how often it happened, but thought it was more than 10 times.

As will be discussed below, defendant's house was searched pursuant to a warrant in November 2015, over a year after M.F.'s death and eight months after C.F. was placed in foster care. Numerous dents and hole were found in the interior walls. At trial, C.F. examined the photographs and testified that some of the dents were made when defendant pushed his head into the wall. One photograph showed a dent in the kitchen wall that was covered with a painting. C.F. said the kitchen hole was the result of an incident when defendant made him stand with his back to the wall, yelled at him, grabbed his head, and slammed the back of his head into the wall. Defendant told C.F. to put up a painting to cover the resulting hole.

C.F. examined photographs that showed other dents around the house. He testified that M.F. also was punished this way, and the only reason there were additional dents in the walls was because defendant slammed M.F.'s face into the wall.¹¹

11 As C.F. reviewed the photographs of the dents in the interior walls, he asked for a break. When he returned to the stand, he testified that he needed to calm down because his heart was racing, and he became sad when he looked at the photographs of the dents that were a result of defendant slamming their heads into the walls.

As will also be discussed below, L.F. testified that she saw defendant repeatedly "bang" M.F.'s head against the hallway wall and make a dent.

C.F. Forced to Ingest Soap

C.F. testified about two instances when defendant forced him to ingest soap.

The first incident occurred when C.F. was probably in sixth grade. The family attended a picnic with defendant's parents, and defendant's mother gave 10-inch plastic bottles to the children that contained M&M candies. Defendant did not know that C.F. got one of the bottles. When they got home, defendant became angry because she found the bottle and he had food in his room. Defendant filled the bottle halfway with water and liquid dishwashing soap, with the candy still inside. She shook the bottle and forced C.F. to drink the mixture. C.F. drank the liquid because he was afraid defendant would beat him if he refused, and it was "gross."

C.F. described a later incident when he used the wrong type and amount of soap in the dishwasher and there was a mess in the kitchen. Defendant got mad and made C.F. clean up the mess, and then made C.F. put a dishwashing soap pod in his mouth. It tasted like soap and his mouth became numb, and he was able to remove it from his mouth.

Hot Showers

C.F. testified that he was punished more than twice because he took a shower too long, and the hot water fogged up the bathroom mirror. Defendant would get angry and say he was wasting the hot water. C.F. remembered an incident when he was in the fourth grade, and defendant told him to get back in the shower, use whatever hot water was still left, made him stand under water that was scalding and burning hot, and his skin became red and warm.

C.F. testified defendant also got mad at M.F. for the same reason. On more than one occasion, C.F. heard defendant get angry and yell at M.F. about taking too long in the shower and using the hot water.

M.F.'s Home/School Notebook

M.F. attended special education classes for the four years she was at Webster Elementary. As will be further discussed below, every special education student had a" 'Home/School Notebook'" (the notebook) that would go back and forth between home and school during the term, so the teachers could keep the parents updated about the child's behavior, and parents could advise the teachers about their home activities.

C.F. was present during an incident when defendant read comments in M.F.'s notebook from her teacher, who noticed something on M.F.'s body and wrote about it to defendant. Defendant became angry about the note, and punched, kicked, and hit M.F.'s entire body. M.F. told defendant to stop because it hurt.

Taking C.F. to Emergency Rooms to Get Opioids

C.F. testified that defendant did not take him for medical treatment for the various injuries he suffered as a result of her "punishment" and abuse. As will be fully addressed in part V, C.F. testified that defendant repeatedly took him to urgent care clinics or emergency rooms, falsely reported to the medical personnel that he had pain in his right elbow from a prior healed injury, and obtained prescriptions for opioids. C.F. testified that he did not ask to go to these medical visits. Defendant told him to falsely say that his arm was hurting, she was always with him in the examination room, and he complied with her orders.

C.F.'s Prior False Statements

C.F. testified that defendant told M.F.'s teachers that he inflicted the bruises they saw on his sister. C.F. was present when defendant told M.F. to blame C.F. if anyone at school saw her injuries and asked what happened. C.F. had no idea how many times he was blamed for M.F.'s injuries. C.F. once told the school's assistant principal that he inflicted a bruise on M.F.'s face. He lied when he said this, because he knew he would get in trouble from defendant if he did not say that he was responsible, and "[defendant's] punishment was going to be way worse than whatever the school could give me."

Defendant told C.F. not to tell anyone about what she did to M.F. because "it wasn't their business," and it was "a family matter and we didn't need to discuss it." C.F. met with social workers as their adoptions were being processed and at other times, but never disclosed anything because he was scared and knew he was going to stay with defendant.

C.F. testified that when he appeared at a court hearing in September 2015, he did not tell the truth and lied under oath when he said he was not abused, M.F. harmed herself, and he purportedly kicked out A.F.'s tooth during an unrelated incident. He lied at the hearing because he was afraid that he would be returned to defendant's custody, she would punish him, and he still felt under her manipulation since he had visitations with her.¹²

12 C.F. and the children were removed from the custody of defendant and Gerardo in March 2015, six months after M.F. died. Defendant and her husband went through the reunification process and had regular visitations with the children. In September 2015, C.F. testified at the jurisdictional evidentiary hearing in the juvenile dependency case, denied being abused, but did not say he hurt his sister. The juvenile hearing was held before defendant was charged with M.F.'s murder.

Neighbor Calls the Sheriff's Department Because of Screams

The parties stipulated that on July 19, 2012, at 12:10 p.m., the Madera County Sheriff's Department received a call for service from Jim Garcia. Mr. Garcia lived across the street from defendant and Gerardo from 2011 to 2013. He knew defendant was the mother of the children who he saw around the house, but never interacted with anyone from that residence. Mr. Garcia noticed the children were not outside very often.

Mr. Garcia testified there were about 10 to 15 times when he heard "crying, yelling, screaming" from defendant's house, it seemed like "a regular thing," and happened over a period of months. There were screams coming from this house "constantly," and they were "different kind of screams. They weren't just, like someone crying."

Mr. Garcia finally decided to call law enforcement when he heard a "bad horrific blood-curdling yell" from defendant's house. He knew it was not "a regular cry," but it was "something really hurtful." He never spoke with the officer who responded that day. After this incident, he later heard crying from defendant's home on another occasion. He never contacted the occupants to see if everyone was okay because "[t]hat's what the sheriff's for."

PART IV

TESTIMONY FROM OTHER FAMILY MEMBERS ABOUT DEFENDANT'S "PUNISHMENT" AND ABUSE OF THE CHILDREN

The prosecution presented the testimony of three family members who corroborated certain aspects of C.F.'s testimony about how defendant physically abused C.F. and M.F. in the home - L.F. and A.F., the biological daughter and son of defendant, and M.M., defendant's adopted sister.

L.F.'s Trial Testimony

L.F. (born 2004) was almost six years old when M.F., C.F., and G. moved into the family's home in 2010, and 14 years old when she testified in 2019.

L.F. testified that she liked M.F., and she was a nice, sweet girl. They always played together, and L.F. never had any problems understanding her. C.F. was "a really good older brother," who always tried to make sure the younger children were safe and happy. C.F. never hurt L.F. or the other children. L.F. never saw C.F. bang his head on the wall, or scratch, cut, or hurt himself. L.F. never heard or knew of C.F. claiming to have injured or bruised M.F. L.F. never saw C.F. put his fist through the wall. L.F. never saw M.F. hurt herself, bang her head against the wall, or cut herself.

L.F. once saw M.F. burn her hand when she was trying to grab a piece of corn on the cob. It was too hot, and she dropped it on her foot. Defendant grabbed M.F.'s hand, looked at it, and told her never to do that again.¹³

13 In Part VIII, post, we will address an incident when M.F. had burns on her hand, and defendant took her to the hospital and claimed the burns resulted from picking up corn.

Gerardo was not home very often because of his work schedule as a deputy sheriff. Defendant ran the house by herself, and sometimes J.F., her oldest biological son, would help.

L.F. had "barely any" good memories from her childhood, limited to going on trips and playing with her siblings. As a child, L.F. believed that "little kids, they get smacked. That's just how I grew up, like, everybody got hit in their household. Like, nobody had a household where there were no hands on each other." L.F. could not remember being hit by defendant with her fists or a belt, and "if I did remember, I would definitely answer…." She did not see defendant hit or injure her younger biological brother, A.F.

L.F. testified that M.F. had difficulty speaking and expressing herself, and "she was just so put down all the time" for that. Defendant and Gerardo "would always be so mean to [M.F.] and, like, barely let her express herself because she had all these rules on her. Like, she had to do this; she had to do that; she couldn't do this; she couldn't say that." L.F. heard defendant and Gerardo tell M.F.," 'You're ugly,' 'you're stupid,' 'you're not worth anything'; really self-destroying stuff." M.F. would "just cry and take it in" and never argued back.

L.F. did not share the same bedroom with M.F. because she was told by defendant and Gerardo, but "mostly" by defendant, "that I shouldn't share a room with [M.F.] because she was no good. So, most of the time I would just end up sleeping in the living room or on the floor with, like, my parents and my two younger brothers."

M.F. had to "clean up after other people." The biological children of defendant and Gerardo did not have cleaning assignments, and G. was too young to work.

L.F. testified that there were times when defendant kept the children home from school, and she was not sure of the reason. Defendant sometimes made C.F. stay home from school if she wanted to punish him.¹⁴

14 The children's elementary school reported that both children were repeatedly absent from school without reason.

L.F. remembered an incident when defendant punished C.F. by making him take off his shirt, wear a woman's bra, and sit in the living room for a couple of hours. Defendant used a mocking tone of voice to make fun of him. C.F. kept a straight face and did not try to take it off or leave the room. The other children were present, but no one tried to help him.

Physical Abuse of M.F. and C.F.

L.F. had "specific memories about how [defendant] abused [C.F.]." "[T]hey are more like trauma memories, so they kind of just stick to me more than, like regular things that go on, like, in a household family."

L.F. heard defendant use the belt to hit C.F. or M.F., the sound of "something being smacked against another thing really hard," and then heard the children yelling and crying. "I would usually see it and then I would usually walk away to not be a part of it." L.F. testified that Gerardo was at home "[s]ome of the times" when defendant hit M.F. with the belt.

L.F. saw defendant punish C.F. by "[w]hacking him with the belt." L.F. believed defendant hit C.F. with the belt "about or a little less than" she did to M.F.

On direct examination, L.F. testified that she saw defendant hit M.F. and C.F. "multiple times." On cross-examination, L.F. testified that she saw defendant hit M.F. with a belt more than 10 times, and it started "[e]ver since [M.F.] … was adopted into our household." It happened so often that L.F. did not have a specific memory of any particular incident, aside from the night that M.F. died (which will be discussed in part IX below).

L.F. testified that C.F. and M.F. were always protecting each other. C.F. would stand up to defendant and tell her that something was not M.F.'s fault, so she would not get hurt. Defendant would punish M.F. anyway.

Punishment for Eating Without Permission

L.F. heard defendant tell C.F. multiple times that he had to ask permission to eat food. She heard defendant scream at C.F. if she found out he took food without permission.

L.F. also heard defendant tell M.F. that she had to ask permission before she could eat, and M.F. asked defendant for food once or twice. "[M.F.] wasn't able to get food, like me and my two youngest siblings could. She had to clean the house a little bit. She had to help take care of [G.], the youngest." L.F. saw defendant hit M.F. with a belt "[v]ery often" if she caught M.F. "stealing" food. L.F. also saw defendant hit M.F. with her fists and saw bruises on M.F.'s arms and legs.

L.F. testified that defendant's rule about not taking food applied to both snacks and "microwavable meals." M.F. and C.F. "had to ask to have either snacks or to just get food, in general, because we wouldn't have daily meals."

L.F. explained defendant seldom prepared regular meals for the family. All the children were mostly "fending for ourselves" and that started when C.F., M.F., and G. moved into their home in 2010. Defendant "wouldn't really cook. It was kind of just, like, whatever was there, we just had to grab it and see if we could eat it." "Like, at a certain time we wouldn't have breakfast or at a certain time we wouldn't have lunch. It would just be if you can get some food, then eat it whenever you could." There were "rare occasions" when defendant cooked for the children, maybe three or four times a month, but "most of the time we would have to go and fend and get our own food." When Gerardo was home, the same thing happened for dinner and the family often went out to eat. M.F. and C.F. "[s]ometimes" were allowed to go out to dinner with the family.

Defendant "Bangs" M.F.'s Head into the Wall

L.F. testified about a time when she was in the third grade, heard M.F. "crying and yelling," and L.F. went into the hall to see what was going on. Defendant and M.F. were standing in the middle of the hall, defendant's hand was on the back of M.F.'s head, defendant pushed her face "really hard" into the wall, and M.F. was crying. Defendant kept pushing M.F.'s head against the wall 10 or more times for a couple of minutes. M.F. never stopped crying. L.F. testified that defendant's face looked angry. When defendant finally stopped, she told M.F. to go to her bedroom.

L.F. saw other places in the house where the walls were damaged, and "[i]t looked like it happened more than once."

Defendant Prevents M.F. from Caring for Her Hygiene

L.F. recalled defendant had another rule that M.F. "had to take a shower and be clean or she'd be disgusting." M.F. was old enough to shower by herself, but L.F. did not remember M.F. doing so because defendant "would rarely let her."

As a result, M.F. did not take care of her physical cleanliness, and her arms, face, and behind her ears would be dirty. Defendant would punish M.F. for being dirty, but she did not punish her as severely as when she took food without permission.¹⁵

15 As will be discussed parts VI, VII, and VIII below, the staff at M.F.'s school testified that she often came to school in soiled clothing and had recurring personal hygiene issues.

Both Siblings Sent Outside at Night

L.F. recalled more than one incident when both M.F. and C.F. were forced to sleep outside at night. L.F. knew M.F. had to sleep outside four or five times, in either the front driveway or the backyard. L.F. never saw them sleeping outside, but defendant and Gerardo told her what happened. L.F. once saw M.F. come back into the house in the middle of the night and go to her bedroom; defendant was sleeping in the living room and did not see her.

Use of Shocking-Type Device on C.F.

L.F. testified that defendant "would tase [C.F.] sometimes, like a flyswatter that just, like, zapped flies that went into it." L.F. described this object as a "Taser" but testified that defendant "didn't have an actual Taser. It was like this flyswatter that whenever a fly got into it, it would, like, zap it, kill it. That's what she was using on C.F." The device looked like, and was as big as, a normal tennis racquet, and it gave a shock when activated with a button.¹⁶

16 C.F., the only surviving victim who was injured by a shocking-type device, described it as a "Taser." L.F., who saw defendant harming C.F. with the device, gave a different description. At trial, defense counsel introduced a photograph of an object, and L.F. said that it looked similar, but it was a different color that the "flyswatter/Taser" that she saw defendant use on C.F. Defense counsel clarified to the court that the object in the photograph was not recovered during the search. C.F. later testified that after M.F.'s death, defendant no longer used the "Taser" to punish him because it was broken. Even if there were two distinct shocking-type devices, no such device was recovered during the search of defendant's house in November 2015.

L.F. testified about an incident when she was nine years old and in the third grade. She was in the living room with the other children and heard C.F. "yelling in pain." L.F. went into the hall, "peeked" into C.F.'s bedroom, and saw C.F. and defendant. C.F. was not wearing a shirt and he was "mostly" standing up straight. C.F. was facing the wall and defendant was behind him. Defendant "was holding the Taser and she was kind of just holding onto his shoulder, like, trying to keep him in place." L.F. heard a loud" 'zzz'" sound as defendant used the device to shock the back of C.F.'s right shoulder. C.F. closed his eyes and "yell[ed] out, like he was in pain." L.F. "freaked out" and ran back into the living room; defendant did not see her.

L.F. was present at times when defendant made C.F. take off his shirt to punish him with the "flyswatter." L.F. saw scars on C.F.'s arms and "huge scratches" on his back where the skin had peeled off.

L.F. did not see defendant use the shocking device on M.F. or the other children.

Defendant's Threats if the Children Revealed the Abuse

L.F. testified no one tried to help C.F. or M.F. during these incidents of physical abuse because it was "just normal in that house that I was living in. Like, people getting smacked, hurt all the time was just really normal, and it just didn't seem anything out of the ordinary."

L.F. feared for the safety of her younger siblings because of these incidents, and she was very fearful that she would be physically abused. L.F. never told her grandparents, teachers, law enforcement, or friends about what was going on in the house. She never told any social workers who spoke to her before she was removed from defendant's house.

L.F. did not reveal the abuse because defendant taught them that "it wasn't good to tell people what was happening in our home, like we would be in trouble if we said anything about it." Defendant "would tell us that … people, like CPS, were, like, bad people and they were going to take me away for absolutely no reason. Threatened to hurt me and my siblings if we said anything about it," and that she would "[s]mack us with a belt" by hitting them in the lower back or buttocks. Defendant told them," 'Don't say that or you're going to get hit with a belt.' "

Defendant made these threats to L.F. in the presence of her biological brothers A.F. and J.F., and her adoptive brother C.F. L.F. took defendant's words seriously "[b]ecause it was gonna happen. If we didn't keep quiet, we were going to get hurt." L.F. "didn't even think about even telling anybody" because "we were threatened if we did tell anybody. And all that just seemed so normal to me that some part of me just thought that every household … everybody, their mom smacks them, their mom hurts them, their dad hurts them. I thought that was normal in every other household."

A.F.'s Trial Testimony

A.F. (born 2007) the biological son of defendant and Gerardo, was three years old when the siblings joined the family in 2010. He was 12 years old and in the seventh grade when he testified at trial in 2019.

A.F. felt okay when he lived with defendant, Gerardo, and his siblings. A.F. also testified that he "didn't like it when they physically abused me. I don't think anybody would" and clarified he was referring to defendant and Gerardo. A.F. testified about an incident when he was in the second grade at Webster Elementary and got in trouble at school. When he got home, defendant hit his bottom one time with a belt. After this incident, he was scared because he "didn't want to be there anymore."

A.F. testified that there were other occasions when he would misbehave, and defendant would punish him with either timeouts, or she would hit him one time on his rear end with a belt. Gerardo hit him and used a belt on him on five to 10 different occasions. Gerardo would hit him once on the rear end. A.F. could not remember the circumstances of these incidents.

A.F. remembered when C.F., M.F., and G. started to live with his family as foster children. A.F. and his biological siblings liked M.F. and C.F. and played with them. A.F. did not have any problems communicating with M.F., and knew she was in a special needs class.

A.F. testified that M.F. had to clean her bedroom. When asked if M.F. shared the bedroom with anyone, A.F. testified that "we didn't really have rooms" because there was not enough space for everyone in the family. A.F. usually slept on the living room couch or floor. A.F. knew L.F. sometimes slept in the same bedroom as M.F., but L.F. also slept on the couch or the floor. C.F. had his own bedroom and sometimes J.F. would sleep there too, but J.F. also slept in the living room. There was a piece of yellow foam in the living room, it was not an actual mattress, and it was "like the stuff you kind of see inside your regular mattress," and about the size of a twin bed.¹⁷

17 C.F. testified that there was a "mattress" in the living room, and defendant sometimes slept on it with the younger children. C.F. also testified about an incident when defendant kept punching him, threw him onto the mattress on the living room floor, stuck the Taser down his throat, and the back of his head fell off the mattress and split open on the floor.

A.F. never saw C.F. cut or harm himself. He never saw M.F. and C.F. wrestling or harming each other, and C.F. never harmed A.F.

Restrictions on When C.F. and M.F. Could Eat

A.F. had plenty to eat in defendant's house and did not go without meals. A.F. remembered that C.F and M.F. were not allowed to eat dinner with the family, and he thought that happened about five times.

A.F. Hears a "Zapping" Noise

A.F. testified that he did not like living with defendant "[b]ecause she would also hit [C.F.]. And I didn't like it" because C.F. was his brother. A.F. never saw defendant hit C.F. but knew she did because he heard C.F. "yelling in pain" more than once when he was in a different room.

A.F. remembered an incident when he was five or six years old and in the first grade. He was sitting on the couch in the living room. C.F. and defendant were in another room. C.F. "was yelling in pain, but [defendant] just told me that he was fine." A.F. did not look in the other room because he was scared, and "didn't know if I was going to be given the same kind of punishment … for going to look at something that I wasn't supposed to."

A.F. testified about another incident when he was in kindergarten or first grade. He was in the living room and heard a "Taser" being used to punish C.F. A.F. heard a "zapping noise" for a few seconds and "I just assumed it was a Taser." After hearing the zapping noise, A.F. heard C.F. crying in his bedroom.

M.M.'s Testimony

M.M. was adopted by defendant's biological parents when she was four years old. M.M. moved out of her parents' home when she was 17 years old, and she was 22 years old at the time of trial.

M.M. initially met C.F. and M.F. when they were foster children with defendant's parents. When the children lived with defendant, M.M. often visited to hang out with them and sometimes spent the night. M.M. had a good relationship with C.F. and was close to him. M.M. described M.F. as a "good kid" who "always had a smile on her face."

M.M. testified that when C.F. and M.F. were initially placed in defendant's house, C.F. was sad because he did not protect M.F. from being beaten up by his biological mother's boyfriend.¹⁸

18 The prosecution introduced evidence that M.F. and C.F. were removed from their biological mother the second time because of a report that she hit M.F. The third and final removal occurred when the biological mother was attacked by G.'s father and the baby suffered bruises. The prosecution did not introduce evidence that M.F. was assaulted by the mother's boyfriend.

M.M. testified it was hard to understand M.F. because of her speech impairment. M.M. would keep asking what she was saying, and M.F. would get a little upset, stop talking, and become quiet.

M.M. testified C.F. and M.F. loved each other, and C.F. did not have any trouble communicating with M.F. There were times when C.F. would get annoyed, frustrated, and mean to M.F., and he pushed her once. However, M.M. never saw C.F. hit, hurt, or get physical with M.F., and M.F. never hurt C.F. M.F. and L.F. loved each other as sisters, and M.M. never saw the girls harm each other.

M.M. never saw M.F. or C.F. cut or burn themselves, hit their heads against the wall, or harm themselves in any way. M.M. never saw M.F. have "fits" or throw herself on the bedpost in her room.

Defendant's Treatment of M.F. and C.F.

M.M. testified that sometimes defendant was good and loved M.F., but "if [M.F.] was in trouble, it was different." Defendant said that if M.F. "acted like a foster kid, she was going to be treated like a foster kid." Whenever defendant made that statement, "[w]e weren't allowed to talk to [M.F.]. We were just supposed to leave her, sit where she's supposed to sit" in her bedroom as a timeout.

Taking Food Without Permission

M.M. did not know why M.F. got in trouble with defendant. M.M. never saw any limitations on what or how much M.F. and C.F. could eat but knew one of defendant's rules was that "they weren't supposed to eat - or take anything from the fridge or whatever unless they asked." M.M. and the other children were also told not to take food from the refrigerator.

M.M. knew both M.F. and C.F. broke defendant's rule about food because they would be sent to their rooms. Defendant said M.F. was "stealing" food. If M.F. took food without permission, that food was considered her dinner, and she had to go the rest of the night without eating.

Defendant's Punishment of C.F.

M.M. testified about an incident when C.F. got in trouble for something. M.M. and the other children were watching television, and she heard C.F. crying in his bedroom. M.M. walked to the doorway of his bedroom and saw C.F. lying on the floor, either on his stomach or side. Defendant was sitting on top of C.F. like he was a chair and laughing. After a few minutes, M.M. walked away and rejoined the other children.

M.M. testified about another incident that occurred at lunch time in defendant's house. M.M. and the others ate before C.F. Later, defendant and C.F. were sitting at the table, and defendant was feeding tomato soup or tomato sauce to C.F. as "punishment." The other family members did not have that for lunch. C.F. did not like it and was gagging. Defendant told C.F. that if he threw up, he would have to lick it up; C.F. finished eating it.

After he finished, defendant told C.F. to go into the backyard, and he could not come back into the house until she said so. C.F. went outside, and he was crying. It was cold that day, C.F. was only wearing shorts and a T-shirt, and he had to stay outside for "[h]ours. It was a long time." M.M. did not help C.F. because she did not want to get in trouble or interfere with defendant's punishment of her child. Around 11:00 p.m. when everyone was going to bed, defendant told C.F. that he could come back inside.

PART V

DEFENDANT REPEATEDLY TAKES C.F. TO GET PRESCRIPTION DRUGS

As set forth in part III, ante, C.F. testified about numerous times when defendant physically assaulted him, he suffered bloody injuries, and she never took him to a physician for treatment of these injuries. Beginning in 2014, however, she repeatedly took him to hospitals and medical facilities, and falsely reported the boy had reinjured a prior elbow injury. C.F. testified that he did not ask to go to these hospitals, defendant told him to say that his arm was still hurting, defendant was always with him in the examining room, defendant provided the information to the doctor about his condition and said he had a lot of pain in his arm, and C.F. always lied about having pain in his arm. C.F. testified that he was given prescriptions during these appointments, they would take the prescriptions to the pharmacy and receive pills, and C.F. took some of the pills. C.F. said there were times when defendant took him to two hospitals in the same day. C.F. never refused or resisted because he was scared of her.

In order to further corroborate C.F.'s trial testimony, and refute the defense claims that C.F. was lying about defendant's abuse, the prosecution introduced detailed testimony and voluminous medical records about the numerous times defendant took C.F. to emergency rooms, claimed he was in pain, asked for prescriptions for Norco, and that on two occasions, she took him to two hospitals in the same day when she could not get an opioid prescription from the first facility.

As will be seen in parts VI, VII, and VIII, the timeline of defendant's multiple trips to the emergency room in 2014 to obtain opioid prescriptions corresponded to the same period when M.F.'s teachers saw the girl with repetitive and more serious bruises and physical injuries.

C.F.'s Right Elbow Injury

C.F. testified that he broke his right elbow in a scooter accident while he was living in defendant's house. There was no evidence that defendant inflicted or was responsible for this injury.

In November 2013, C.F. had surgery on his broken elbow at Valley Children's Hospital (VCH), and pins were inserted. C.F. had pain from the pins, and a second surgery to remove the pins was scheduled at VCH in February 2014.

On February 10, 2014, prior to his second surgery, defendant took C.F. to the emergency department of Madera Community Hospital (MCH). She reported C.F. had fractured his right elbow in November 2013 and had surgery, he had increasing pain in that elbow in the prior few days, there was a pending appointment for another surgery, she could not reach his doctor at VCH, and he needed pain medication. The nurse practitioner found no swelling, infection, or restriction of movement, but some tenderness at the surgical site.

Defendant reported that C.F. was allergic to codeine, and he previously received Norco.¹⁹ C.F. was given one dose of Norco that day and a prescription for 10 or 15 pills. The nurse practitioner checked the hospital's records and confirmed C.F. had not been there for multiple visits to obtain medication.

19 Norco is a prescription opioid medication for severe pain that consists of acetaminophen (Tylenol) and hydrocodone (a narcotic for pain control). There are three strength levels of Norco, ranging from five to 10 milligrams. The standard dosage is to take one pill every six hours. A physician who testified in this case explained prolonged use of Norco may lead to addiction and alter a person's mental status and decision-making abilities.

On February 20, 2014, C.F. had surgery at VCH to remove the pins from his right elbow. The orthopedic surgeon prescribed 30 Norco pills to C.F.

C.F. wore multiple casts after the two surgeries. C.F. had some pain at the beginning of the injury, but his right arm recovered.

C.F. testified that defendant continued to "punish" him while his arm was in the casts by making him run outside, hitting him, using the Taser on him, standing with his face to the wall, and pushing his head into the wall.

Department of Justice Records

The Department of Justice's "Controlled Substance Utilization Review and Evaluation System" (CURES) database is a repository of prescriptions written for controlled substances listed in Schedules II through IV, to assist in preventing abuse of opioid medications. The prescriptions are reported to the CURES system by dispensers, pharmacies, and clinics.

The CURES records showed that between November 2013 and March 2015, C.F. received a total of 30 prescriptions that were for hydrocodone bitartrate acetaminophen (Norco), Tramadol hydrochloride (Ultram)²⁰, and oxycodone hydrochloride. Of those 30 prescriptions, 28 were for hydrocodone and dispensed a total of 628 pills.

20 Tramadol (trade name Ultram) is a prescription opioid medication used for moderate to severe pain control.

We turn to the chronological history that corroborated C.F.'s testimony about these medical visits and prescriptions.²¹

21 The defense objected to this evidence as irrelevant and prejudicial. The prosecutor argued the testimony was relevant and probative to provide independent corroboration of C.F.'s testimony, that defendant made him go to doctors and lie that he was in physical pain, they went to more than one hospital in one day, and they would get opioid prescriptions filled. The prosecutor argued that while it was a "good thing" to take a child to a physician, taking a child over and over and making him lie to obtain prescriptions showed "not only the defendant's manipulation of [C.F.] and any other children within the house, but also to how he, then, internalizes this information and feels that he cannot expose the defendant for fear of retribution for the physical punishment [he] has already received from the defendant…." The court overruled defense counsel's objection and found the probative value of such evidence outweighed any prejudice.

April 2014 - Prescriptions for Norco and Percocet from Kaiser and MCH

On April 7, 2014, defendant took C.F., who was 12 years old, to Kaiser in Fresno. She gave the history of his two elbow surgeries, reported he had a right elbow contusion because a child bumped into him, and he was in pain. Defendant said codeine gave C.F. very bad abdominal pain and requested a prescription for Norco.

A physician examined C.F. and determined there was very little swelling in the elbow, it was "moderately tender" in one area, and it was worse when she pressed on the surgical scar. An X-ray showed there was no fracture. The physician prescribed 20 pills of Norco (five days' worth) of medium potency and directed defendant to bring him back if he did not improve in the next week.

On April 10, 2014, the physician called defendant to follow up, and she reported C.F. needed Norco twice the first night, and he went back to school.

Also, on April 10, 2014, three days after receiving a Norco prescription from Kaiser, defendant took C.F. to MCH's emergency room and repeated the history of his right elbow surgeries, said he reinjured the elbow and was in pain, and he did not have any active prescriptions. The X-ray was negative, C.F.'s arm was placed in a splint, and he was given Percocet.²²

22 Percocet is an opioid and trade name for oxycodone hydrochloride.

May 2014 - Prescriptions for Norco from Kaiser

On May 1, 2014, defendant took C.F. to Kaiser and reported he had a new injury to the same elbow, he was in pain, and codeine made him break out in hives. The physician gave C.F. a prescription for Naproxen (an anti-inflammatory) and a lesser strength of Norco as needed for breakthrough pain.

On May 9, 2014, defendant called the physician and reported C.F. continued to have pain that required Norco every four to six hours. Defendant said C.F.'s pain "was controlled better on a higher dose of hydrocodone," and requested a stronger narcotic. The physician directed defendant to follow up with the orthopedist and prescribed Naproxen.

On May 27, 2014, defendant again called that physician, reported C.F. was seen by an orthopedist, he was in pain again after hitting the same elbow, and he was not improving on Naproxen.²³ The physician gave prescriptions for Ultram for breakthrough pain, and Norco as needed.

23 There is no evidence C.F. was seen by an orthopedic specialist during this time period.

June 2014 - Prescription for Norco from Kaiser

On June 13, 2014, defendant took C.F. to Kaiser, and reported he again injured the same right elbow and had severe pain. C.F. received a prescription for Norco, with directions to take it until the pain was controlled; and then switch to Ultram.

July 7, 2014 - Prescription for Norco from Kaiser

On July 7, 2014, defendant took C.F. to the pediatric center at Kaiser, and reported he injured the same right elbow because he fell. Defendant reported ibuprofen was not easing C.F.'s pain, and she ran out of his prior prescriptions for Norco and Ultram. A physician refilled the Norco prescription with directions to use it sparingly, refilled Ultram with directions to use it with ibuprofen, and referred C.F. to occupational therapy.²⁴

24 There is no evidence C.F. went to any type of occupational or physical therapy during this time period.

July 26, 2014 - Two Hospital Visits

The prosecution's evidence corroborated C.F.'s testimony about going to two hospitals on the same day.

MCH - No Prescription

At approximately 1:53 p.m. on July 26, 2014, defendant took C.F. to MCH's emergency room. At 2:34 p.m., a nurse practitioner met with them. Defendant repeated the story about C.F.'s prior elbow surgeries, and said he fell and injured his right elbow again, and he did not have any active prescriptions. The X-ray was negative. C.F.'s right arm was placed in a sling, and he was directed to take Tylenol or Motrin for pain and follow up with their doctor. No pain medication was prescribed.

At 3:37 p.m., C.F. was deemed ready for discharge. At 4:10 p.m., a nurse tried to find defendant and C.F. to complete discharge paperwork, but they were not in the emergency department's waiting area or the hospital's parking lot, and they were never located.

VCH - Prescription for Norco

At approximately 4:53 p.m., defendant took C.F. to the emergency room at VCH and reported that he injured his right elbow, recounted the history of his prior surgeries, and said the pain was constant and throbbing.

A physician ordered an X-ray, determined it was negative, and discussed giving him either Tylenol or Advil. Defendant said they were already doing that and asked for something stronger.

The physician checked C.F.'s records at VCH, and that he was prescribed Norco by an orthopedist after his elbow surgery in February 2014. C.F. received a prescription for nine Norco pills, based on the physician's standard practice not to provide more than two and one-half days of strong pain medication, and directed to take Tylenol or Advil, and follow up with his own physician.²⁵

25 The physician at VCH testified C.F. received a Norco prescription for a strength of "5/325, which means it's five of the hydrocodone and 325 of the Tylenol, which is kind of the mid level, and it's also based off his weight. I gave him the five. It's the lower of the three [possible doses]."

August 2014 - Prescription for Norco from Kaiser

On August 7, 2014, defendant took 13-year-old C.F. to Kaiser, reported he reinjured the same right elbow, he had been in pain for two weeks that got worse with movement, and anti-inflammatory medications were not helping. C.F. reacted in pain around his surgical scar, received a referral for therapy, and was told to meet with the orthopedic surgeon. C.F. received a prescription for Norco for pain relief for the next 48 hours, with Ultram as needed.

September 19, 2014 - No Prescription from Kaiser

On September 19, 2014, defendant sent an e-mail message to the physician at Kaiser, reported C.F. hurt his right arm again during afterschool activities, his elbow was very swollen and painful, and asked for pain medication. The physician replied by e-mail that C.F. should see the surgeon again, and Norco was not required for every episode.

September 22, 2014 - Prescription for Norco from Kaiser

On September 22, 2014, defendant took C.F. to see a pediatrician at Kaiser, repeated the same story about C.F.'s right elbow, said he injured it again lifting weights at school, and he was in pain. Defendant stated she did not feel "Norco 5 milligram" was helpful, even with a full pill, and "Norco 7.5" would be better.

The pediatrician determined C.F. was not in acute distress, there was no swelling, and his arm appeared sensitive to touch in the area of the surgical scars. C.F. received a prescription for Naproxen for inflammation, and approximately 20 to 30 pills of Norco at 7.5 milligrams of strength.

October 3, 2014 - Prescription for Norco from Kaiser

At 11:00 a.m. on October 3, 2014, defendant took C.F. to Kaiser and stated C.F. had injured both elbows. Defendant further stated C.F. had been seen by the orthopedic department at VCH earlier that day, and the X-ray showed no fracture. Defendant said she brought C.F. to Kaiser to place C.F.'s arm in a splint and refill his Norco prescription.²⁶ Defendant stated that" 'half a tablet of Norco 7.5 milligrams is not enough, and the full pill is too much, and wanted to go back on Norco 5 milligram that has been prescribed before.' "

26 The prosecution did not introduce any evidence that C.F. saw an orthopedist at VCH in October 2014.

The physician determined that C.F. was very sensitive in the area of the surgical scars, placed his arm in a split, and prescribed Norco at the dosage strength of five milligrams, as defendant requested.

October 9, 2014 - Two Visits to Kaiser - No Norco Prescriptions

The prosecution introduced evidence about a second time defendant took C.F. to two hospitals on the same day. On October 9, 2014, defendant picked up C.F. from his middle school at 9:00 a.m. and said he had a doctor's appointment because he injured his elbow.

Kaiser Emergency Room

At 9:35 a.m. on October 9, 2014, Dr. Claude McGlorie II met defendant and C.F. in the minor care division of Kaiser's emergency room. Defendant reported C.F. fell in the school yard two days earlier, heard a pop, and his right elbow was in pain. An X-ray did not show any fracture.

Dr. McGlorie testified that C.F. flexed his arm "reluctantly," and that was consistent with a situation "when the complaint does not match or coincide with what the physical findings are." Dr. McGlorie testified: "I've been practicing for 30 years in the emergency room, and, unfortunately, a lot of patients come to our emergency rooms with ulterior motives…." Dr. McGlorie did not give an opioid prescription, and instead ordered prescription-level Motrin and directed defendant to take C.F. to his regular physician at Kaiser.

Kaiser Pediatric Clinic

At approximately 10:44 a.m. on October 9, 2014, defendant took C.F. to the pediatric clinic at Kaiser, which was in a different building than the emergency department where she had seen Dr. McGlorie.

Dr. Badrinath Kulkarni met with defendant and C.F. Defendant repeated the story about C.F.'s prior elbow injury, claimed he had another injury that week, and further stated he had been to the emergency room at VCH, X-rays were negative, and C.F. took Norco four times for pain.

Dr. Kulkarni determined there was no swelling or tenderness, his reflexes and movements were normal, he could flex his arm, and he did not want to extend his arm. He instructed defendant to give him over-the-counter Motrin and stop administering Norco.

Defendant did not obtain any prescriptions for Norco after the two visits to hospitals on October 9, 2014.²⁷

27 As will be fully addressed in part IX, post, M.F. died on October 10, 2014, the day after these two visits.

PART VI

M.F.'S SPECIAL EDUCATION CLASSES

We have reviewed how the prosecution corroborated C.F.'s testimony about defendant's infliction of torture and abuse on him and that she took him to hospitals to obtain prescription medications.

In parts VI, VII, and VIII, we turn to how the prosecution corroborated the eyewitness testimony from family members about defendant's physical abuse of M.F. - by introducing testimony from members of the teaching staff at Webster Elementary, where M.F. attended special education classes from 2010 to 2014. C.F. also attended the same school for a few years. The staff from Webster Elementary testified about M.F.'s character and personality, and disputed defendant's repeated claims that the two children harmed each other or engaged in self-harming behavior. The staff members testified they repeatedly saw M.F. arrive at school with black eyes, bruises on various parts of her body, and strange marks and scars on her stomach and back, some of which turned out to be similar to the Taser marks on C.F.'s body. There were also occasions when M.F. took food at school, corroborating the evidence she was denied food at home. We now turn to school staff's testimony about M.F.'s injuries.

M.F.'s Special Education Classes

In August 2010, M.F. was eight years old and started the second grade at Webster Elementary. M.F. was placed in special education classes because she had very low academic skills and speech and communication deficits. She remained in these classes for her entire time at Webster Elementary. M.F. had an Individual Education Plan (IEP), used by teachers and parents to support a student's academic, emotional, and social struggles.

M.F.'s Character and Demeanor

Barbara Baughman, the school's health clerk, described M.F. as a very sweet girl who always wanted to give hugs. When M.F. started at Webster Elementary in 2010, she went to Ms. Baughman's office to see her almost every day. M.F. "wanted her hair brushed or her hair combed or she wanted cracker[s] and water," or just to say hello. Ms. Baughman never saw any evidence that M.F. engaged in any self-harming behavior.

Tanya Rosa, a paraprofessional aide in the special education class, testified that M.F. was very loving and caring about the younger children in the program. "If someone had a bad day, she'd come in and give them a hug." M.F. was calm and easy going. If she became frustrated, she would shut down and keep to herself, but she never acted out or harmed herself.

Wendy McCully, M.F.'s special education teacher, testified that M.F. had "a lot of communication issues. Difficulty with intelligibility, which is, like, being able to understand what she's saying…. [D]ifficulty with communicating her basic needs and feelings and wants…. Articulation." Ms. McCully learned M.F.'s speech pattern, and she was "absolutely" able to understand her better over time.

Ms. McCully testified that M.F. became frustrated when people could not understand her, and she would cry, put her head down, and fidget in class. M.F. would also pick at erasers, scissors, things in her desk, or her nails, and there were many times when she would put those objects in her mouth, which Ms. McCully interpreted as signs of frustration. M.F. did not display self-injurious behaviors or head-banging but sometimes would bite her nails.

James Brannon, the school psychologist, testified that M.F. struggled to clearly communicate, and would put her head down when she became frustrated. Mr. Brannon never saw M.F. physically act out, throw tantrums, or engage in self-harming behavior.

Ms. Rosa testified that because of M.F.'s speech impediment, there were times when one or two of her words were difficult to understand, but Ms. Rosa could otherwise communicate with her. Sally Flores, another class aide, testified that it was "a little hard to understand her at first," but it became easier as she got to know M.F. If M.F. was overwhelmed with class work, she would "kind of pout, put her head down," but she never acted out physically.

Audrey Smith and Wendy Mee, two other class aides, similarly testified that M.F. would put her head on the table if she became frustrated in class. Her speech "very much" improved over time, with the assistance of the speech teacher. Ms. Mee never saw M.F. hit her head against the wall, cut herself, or harm herself in any way.

The Relationship Between C.F. and M.F.

M.F. and C.F. initially attended Webster Elementary together but were in different classes. The school staff never saw C.F. and M.F. harm each other on campus. Ms. Flores testified that M.F. and C.F. would have breakfast in the school cafeteria in the morning, they would see each other at recess, and M.F. and C.F. were laughing, friendly, and loving when they were together.

Ms. Flores knew that defendant advised the school that C.F. physically injured M.F., but Ms. Flores never saw the siblings do anything to hurt each other or harm themselves.

Ms. Smith saw M.F. and C.F. together, and they had an affectionate, positive, and good relationship. She never saw any violence between them, and the siblings never argued or physically injured each other.²⁸

28 As already discussed, C.F. testified that he lied and told the school he harmed M.F. because he feared being punished by defendant if he told the truth. As will be discussed below, defendant repeatedly advised the school and social workers that C.F. was violent toward M.F. and inflicted bruises upon her.

The "Home/School Notebook"

As previously explained, every special education student at Webster Elementary had a" 'Home/School Notebook'" (the notebook) for each school year. Ms. McCully advised defendant the purpose of notebook was to exchange notes between teacher and parents to communicate about schoolwork and absences, and to maintain consistent and good communication between them. Ms. McCully explained to defendant that she was expected to respond to any questions or issues raised in the notebook and send it back to school with her daughter.

The special education classes would take field trips, and M.F. participated in them during her first year at Webster Elementary. As time went on, however, M.F. seldom joined the field trips because defendant would not return her permission slips, despite repeatedly being reminded about it in the notebook. Defendant would claim M.F. was sick, out of town, had medical appointments, or she could not go because she had misbehaved.

During M.F.'s four years at Webster Elementary, Ms. McCully used the notebook to make a total of 233 positive reports about the girl to defendant. Defendant never replied to her positive reports or wrote back anything positive about M.F.

Social Services' Contacts with the Children

Laura Burrow, a social worker with the department, handled the children's case up to their adoption in February 2014. She believed she made 75 to 100 visits to defendant's house, met with the children, and never saw anything that required mandatory reporting.

Jodi Marr served an internship with Transitions Children's Services, a foster family agency, from August 2012 to May 2013, that provided additional support to county social workers. Ms. Marr interacted with defendant and her family on a weekly basis while the children were still in foster care.

There was evidence that foster parents received monthly compensation for each child's food, clothing, and shelter, and the amount was between $600 to $800 per child from 2011 to 2013. When the children's adoption became final in February 2014, the family would have started to receive "adoption assistance payments."

The Duties of Mandated Reporters

Chelan Shepherd was the vice principal at Webster Elementary, supported and supervised the special education staff, and knew M.F. Ms. Shepherd testified that at the beginning of every school year, the school staff received training and watched a video about their duties as mandatory reporters of suspected child abuse. If they were suspicious about child abuse, they had to call the department and report it, and follow up with a written document called a Suspected Child Abuse Reporting (SCAR) form. The department trained the school staff to distinguish between a child's general, everyday bruises that happened from playing, compared to bruises or injuries on parts of a child's body that were not common for their age group. The administrators, teachers, and members of the school staff were mandated reporters. They could make anonymous reports to the department and were not required to tell the school's administrative staff that they filed any reports, but most teachers collaborated with the school's administrators about reporting suspected child abuse.

Ms. Shepherd testified that after a teacher made a report of suspected abuse, the department was supposed to send a confidential document back to the school stating the results of the referral and any investigation. Mr. Brannon, the school psychologist, similarly testified the department was supposed to generate "a short narrative that they send to the school to let you know if the case is going to be ongoing, if it's open, if it's closed. [¶] And that document is supposed to be sent … to the individual that filed the report." The department was supposed to maintain the anonymity of the teacher who made the original report, the report was confidential, and it was not supposed to be sent to the parent who was reported for suspected abuse.

Ms. Shepherd testified: "It's our job to report. It's CPS's job to investigate." Ms. McCully testified that, as a mandated reporter, "if I had direct knowledge, then I would call first, and then you're legally mandated to write a written report within … a 24-hour period."

Valerie Rutherford, a social worker with the department, testified that if someone called the department's telephone hotline to report suspected child abuse, a screener entered the report into the department's computer, and a referral was generated. The caller's identity was confidential and protected.

Jerica Ramos, another social worker, testified that the department's telephone screener used a "decision tree" to determine whether there should be an immediate investigation within two hours if the child was in imminent danger and was not safe in the current situation; or an investigation could be conducted within a 10-day period when the child was not in imminent danger.

Ms. Rutherford testified that if a report was made by a mandated reporter, that person was required to send the SCAR form, it would be attached to the referral, and the records would be printed out and assigned to a supervisor, who then assigned the case to an emergency response worker.

Ms. Rutherford further testified about possible dispositions for child abuse referrals: (1) the referral could be" 'evaluated out,'" meaning it did not "rise to the level … of response" and would not be investigated; (2) the referral was investigated and deemed substantiated; (3) it was investigated and deemed inconclusive, that there was not enough evidence to reach a conclusion; or (4) it was investigated and deemed unfounded, that it was not a credible report. The investigating social worker might send a letter to the mandated reporter about the outcome of the referral, but that was not always done.

PART VII

THE SCHOOL'S CONCERNS AND REPORTS ABOUT M.F.'S NEGLECT AND INJURIES

Mr. Brannon, the school psychologist, believed that during M.F.'s four years at Webster Elementary, members of the staff made over 30 calls to the department and social workers to report they suspected M.F. was being abused. Most of the reports were made in M.F.'s last months at the school, in the spring of 2014. When staff saw visible injuries on M.F., they would discuss the matter as a team to determine if a child abuse referral was required. Mr. Brannon instructed the staff member who personally observed the reportable issue to make the call to the department.

Ms. McCully testified that she communicated with a social worker over 20 times because she was concerned about M.F.'s safety. M.F. started to come to school with bruises, and that increased as time went on. Ms. McCully made telephone calls to the department, discussed the concerns at IEP meetings if a social worker was present, and filed SCAR forms.

When Ms. McCully made reports to a social worker about suspected abuse of M.F, "sometimes they would recommend that I do a report, sometimes they would recommend that … I should document and not necessarily make a report. So it … was a variety [of things]."

Ms. Baughman, the health clerk, personally made six or seven reports to the department about suspected abuse when she thought M.F. displayed suspicious injuries. Ms. Baughman never received follow-up contact from anyone at the department.

Ms. Rosa testified that M.F. often came to school with bruises. When she asked M.F. what happened, M.F. would say that she tripped or that C.F. did it. By June 2014, however, M.F. no longer responded to Ms. Rosa's questions. M.F.'s personality changed, and she became quieter and spoke less. Ms. Mee remembered incidents when M.F. came to school with various injuries "that seemed hard for her to do herself."

Ms. Flores testified that M.F. had "so many injuries" in her last two years at Webster that she could not remember each one. Toward the end of M.F.'s last term at Webster Elementary, in the spring of 2014, M.F. had "a lot more injuries," she was a little more withdrawn, and kept to herself. She cried easily and was tired.

Ms. Smith also saw injuries on M.F. and reported them to Ms. McCully. At one point, however, Ms. Smith began personally reporting M.F.'s injuries to the department and made five to 10 calls.

PART VIII

THE SCHOOL STAFF'S OBSERVATIONS AND REPORTS TO THE DEPARTMENT ABOUT M.F.'S PHYSICAL INJURIES

We now turn to specific testimony from members of Webster Elementary's staff about M.F.'s injuries, based on their own records about when they saw these injuries and made their reports to social workers and the department, defendant's explanations, and the few times that social workers or law enforcement officers investigated the school's reports. None of reports resulted in the removal of either M.F. or C.F. from the home of defendant and Gerardo.

2010-2014 School Terms - M.F. Asking for or Taking Food at School

Ms. McCully testified that there were times when M.F. complained about being hungry, and she had a continuing issue of "stealing" food during her four years at Webster Elementary. M.F. would take food out of the garbage, keep crumbs in her pocket, and visit the nurse to ask for crackers. She also took crackers out of an aide's purse.²⁹ The school reported these incidents to defendant, and defendant would admonish the staff to keep watching M.F. to stop her from "stealing" snacks.

29 C.F. testified that defendant's most common form of punishment was to withhold food from both C.F. and M.F., and L.F. heard defendant tell M.F. that she had to ask permission for food before she could eat.

Mr. Brannon also testified that M.F. often took food from other people, their backpacks, or their desks, and a few times from the trash can.

Ms. Rosa never saw M.F. eat dirt, rocks or nonfood items. There was one occasion when some of the children did not finish their snacks and threw them away; M.F. picked the snacks out of the garbage, and the teacher intervened before she ate anything. M.F. was told not to eat out of the garbage, "something we would tell a lot" of the children, and she was given another snack.

Ms. Flores was assigned to watch the special education children in the cafeteria and made sure M.F. ate breakfast because "she was thin," and her teacher had seen M.F. "take things off the trash." On one occasion, Ms. Flores was told M.F. took food out of a teacher's bag. Ms. Flores would watch for such issues and never saw it happen again. Ms. Mee testified that M.F. chewed on erasers, but she never saw M.F. eat nonfood items.

2010-2011 School Term - Reports About Headlice

Ms. McCully testified that one day in the first quarter of the 2010-2011 term, M.F. was "kind of flailing around and swinging her hair around and … laying on the table," and the staff "figured out that there were live bugs" crawling on her.

M.F. had recurring problems with headlice that began in November 2010 and continued through February or March 2011, and she had to be sent home on multiple occasions. Ms. Baughman frequently spoke to defendant about how to deal with this problem. Defendant replied that she never had lice in her house before. Defendant's biological children never had lice problems.

Ms. Baughman reported M.F.'s recurring headlice to the department because of possible neglect. The public health nurse was also notified since M.F. was in foster care at that time.

In February 2011, defendant took M.F. to a medical clinic and obtained a prescription solution to eliminate lice. The nurse practitioner determined M.F. was in good health but showed a low mood. Later that month, defendant returned to the clinic with M.F., the girl was in good health, her mood was better, she was alert and cooperative, and no lice were found.

2010-2014 School Terms - M.F.'s Recurring Personal Hygiene Issues

Ms. McCully testified that M.F. had continual personal hygiene issues during her time at Webster Elementary. There were several times during the 2010-2011 term when M.F. was not clean. Her clothes and fingernails were dirty, and her hair was matted.

Ms. Smith testified that in August 2010, when M.F. started at Webster Elementary, she was "very happy and bubbly and joyful," but her personality changed "pretty quickly." By September 2010, in addition to the lice problem, M.F. started to be "sad." M.F.'s hair "was very dirty," and "her clothes were dirty. She seemed uncomfortable. She seemed sad. She'd lay her head down on the desk a lot, not in frustration way but just sad. She would say she was tired, or she had headaches. She didn't want to go out and play."

In November 2010, Ms. Smith noticed M.F.'s hair was still very dirty and "very ratted. It had like dreadlocks in it." As time went on, M.F.'s entire body was dirty, and she looked "unkempt" and "not cared for." "Her hair was dirty. She carried an odor. Her clothes were dirty, they did not fit; they were too short, too loose, and did not fit." There were times M.F. soiled herself; she started wearing Pull-Up diapers for toddlers more than a dozen times over the period she was at the school, including during her last term in the spring of 2014. M.F. was very embarrassed about it.

On January 23, 2013, M.F. came to school with dandruff, greasy hair, scabs and dried blood on her scalp, and glitter in her hair. Ms. McCully advised defendant about this in the notebook. Defendant wrote back:" 'Since she's getting older, she doesn't like me to help her with her bath, but I think I'm going to have to start washing her hair for her. I don't think she's washing it the right way.' "³⁰

30 As discussed above, L.F. testified about defendant's rule that M.F. "had to take a shower and be clean or she'd be disgusting" but also that defendant would "rarely let" M.F. shower. L.F. testified that as a result, M.F. did not take care of her physical cleanliness, and her arms, face, and behind her ears would be dirty.

Ms. Shepherd was aware of times in the 2013-2014 school year when M.F. was dirty and smelled. Ms. Mee testified that M.F. often wore clothes that were stained and dirty and were either too big or too small for her.

March 2011 - Meeting with Social Worker About M.F.'s Alleged Pica Behavior

On March 21, 2011, defendant took M.F. to meet with Julie Morgan, a licensed clinical social worker, and reported that M.F. ate "nonfood items all the time, and only in the last month with some consequences for behavior has this … improved slightly…." (Italics added.) Defendant also reported M.F. would bite her nails, and had "a history of conflict behaviors, fighting and biting with brother, but this went away after first month of placement." (Italics added.)

Based on defendant's reports, Ms. Morgan diagnosed M.F. with "pica," a disorder when a person eats non-nutritious items such as paper, plastic, crayons, and dirt. There could be both medical and mental health reasons why a person engaged in pica behavior. Ms. Morgan wanted to rule out a medical condition and determine if there was a mental health reason. She also diagnosed M.F. with expressive language disorder and did not find any evidence of self-harming behaviors. This was the only time Ms. Morgan saw M.F., and she did not know whether any further evaluations were conducted about pica.

Later in March 2011, defendant and M.F. met with Marcia Kamiya-Cross, a therapist at the Lake Street Center for Madera County Behavioral Health Services. Ms. Kamiya-Cross created a treatment plan to address M.F.'s pica and speech disorder issues.

As of April 2011, M.F. received weekly counseling services at the Lake Street Counseling Center.

May/June 2011 - Defendant's Directive to Take Away "Fun Activities"

On May 31, 2011, defendant advised Ms. McCully in the notebook that M.F. was about to have her last visit with her biological mother, and defendant had "no problem with you taking away any/all fun activities planned for this last week! This is actually an idea from her therapist so maybe [M.F.] can understand better the consequences for her bad behaviors.' "³¹ (Italics added.) Ms. McCully never had any contact with a therapist to confirm this alleged directive.

31 The biological mother's last visit with the children was in May 2011.

On June 1, 2011, Ms. McCully wrote to defendant in the notebook that M.F. had a good day and there would be a special activity to celebrate the end of school. Defendant wrote back that M.F. had shown major behavioral issues at home, and she could not participate in any fun activities at school. M.F. was not present for the last day of school.

2011-2012 School Term

M.F. was nine years old and in the third grade at the start of the 2011-2012 school term. Ms. McCully testified that M.F.'s hygiene issues continued during third grade, but she also started to display physical injuries.

On September 26, 2011, defendant wrote to Ms. McCully that M.F.'s therapist wanted them to" 'really start getting a lot harder on her with her consequences for all of this unacceptable behavior, so if she needs to miss out on movies, fun activities, etc., then you have the okay from me, the social worker and therapist.'" (Italics added.) Ms. McCully never verified that a therapist made these directives.³²

32 Ms. Kamiya-Cross, the therapist at the Lake Street Center, testified defendant reported M.F. was "stealing" from others, and that M.F. accused defendant of throwing away her homework and throwing the girl out of bed.

On October 24, 2011, Mr. Brannon met with defendant and M.F. to assess her IEP. Defendant said that at home, M.F." 'lies to get out of trouble, disobeys, steals, and often breaks the rules,'" and" 'seems out of touch with reality….'" (Italics added.)

November 2011

On November 8, 2011, Ms. McCully saw a dime-sized, swollen sore on the inside of M.F.'s upper lip. Ms. McCully reported this injury in the notebook and asked defendant about it. Also, on that day, defendant took M.F. to Primary Care Consultants to look at the small sore on her upper lip; she reported that M.F. was accidentally hit with a book. M.F. was 47.5 inches tall and weighed 43 pounds; the nurse practitioner testified that this was on the low side for her age.

Defendant later replied in the notebook to Ms. McCully's question about the sore on M.F.'s lip, and that M.F. may have bitten her own lip, and it" 'may have happened on Friday when her brother threw a book at her face.'" (Italics added.)

Another time in November 2011, M.F. went to Ms. Baughman's office and had injuries to her mouth and teeth. M.F. said her brother threw a book at her, and she got a bloody nose and a huge sore on the inside of her lip. M.F. said she had gone to the doctor. Ms. Baughman testified the outside of M.F.'s lip was very swollen. M.F. had severe bruises on her face, and the inside and outside of her lip. Ms. Baughman discussed this injury with defendant, and defendant said that "they were brothers and sisters and they liked to fight."³³January 2012

33 There is a strong inference that M.F.'s recurring and more serious facial injuries were the result of defendant pushing her head into the wall as punishment.

In January 2012, after the holiday break, M.F. went to the office and complained her upper right side was hurting. Ms. Baughman testified that M.F. had an old bruise and a dry scab. Ms. Baughman called defendant, who said she did not know about this injury, but that M.F. and her brother "had fought the entire break."

On or about January 9, 2012, M.F. complained of a bruise under her right arm and Ms. McCully saw the bruise. Defendant was informed about it, and reported M.F." 'was always fighting'" with C.F.

On January 12, 2012, M.F. had a bruise under her right eye.

April 2012 - End of M.F.'s Counseling

In April 2012, M.F. was discharged from counseling services at Lake Street; the case was left open for M.F. to return if needed. There is no evidence she returned to counseling.

July 2012 - Scalp Laceration

On July 22, 2012, during summer vacation, defendant took M.F. to MCH's emergency room and reported she had a laceration on the right side of her scalp and was in pain. Defendant said M.F. was playing with the other children three days earlier and she was possibly hit with a broom. Defendant said M.F. had fetal alcohol syndrome. The laceration was a minor injury, required two staples, and M.F. was given an antibiotic because of infection.

2012-2013 School Term

M.F. was 10 years old and in the fourth grade in the 2012-2013 school term. C.F. was 11 years old and starting the fifth grade, but defendant transferred him from Webster Elementary to Sierra View Elementary School.

On August 27, 2012, Ms. McCully wrote to defendant in the notebook and asked why C.F. changed schools. Defendant wrote back that M.F. was a" 'major reason'" for the transfer because M.F. hit C.F. a lot, it was" 'unbearable'" for him, and" 'he asked to go to a school away from her.'" Defendant wrote that it was better for them to have space, M.F. was aware of the reason for C.F.'s transfer, and instructed Ms. McCully to report if M.F. blamed any of her behavior on C.F.'s transfer.

Also on August 27, 2012, M.F. had a well-child exam at Primary Care Consultants. She weighed 53 pounds six ounces and was four feet two inches tall. This was apparently M.F.'s last well-child examination.

October 2012 - Report to Social Worker About M.F. and Car Ride

On October 4, 2012, M.F. arrived at school in a red SUV driven by an older man. Ms. McCully reported this unusual activity to defendant in the notebook. Defendant replied that M.F. missed the bus and said that" 'she got a ride from someone, but could not say who.' "

On October 15, 2012, Ms. McCully called Laura Burrow, M.F.'s social worker, and reported M.F. may have accepted a ride from a stranger. Ms. McCully intended to file a SCAR form but was advised not to do that. Ms. McCully instead spoke to M.F. about "stranger danger," and the girl cried and became upset.

On October 23, 2012, defendant took M.F. to Primary Care Consultants. She reported M.F. had a rash and abrasion on the left side of her nose and started picking it. Defendant was advised to apply Neosporin and keep it clean. M.F. weighed 53 pounds, and the nurse practitioner testified that was on the low end for children her age.

November 2012

On November 12, 2012, defendant wrote to Ms. McCully that M.F. showed her the notebook, and" '[s]he is having consequences for all her behavior while we were away.'" (Italics added.) Defendant asked Ms. McCully to check M.F.'s desk for lost library books," '[a]nd then from now on, no more checking out books from the library.'" (Italics added.)

January 2013

On January 30, 2013, defendant wrote to Ms. McCully in the notebook that M.F. was "'stealing food'" at home, it was out of control, and she had "'no idea why she is stealing so much. She has free access to food and treats/snacks whenever she wants. Her social worker believes it's an effect of being neglected in the past. [¶] Anyway, I just wanted to let you know because I don't know if she might carry this behavior on to school. Let me know if she does.'" (Italics added.)

On January 31, 2013, Ms. McCully wrote to defendant in the notebook that M.F." 'teared up and said she [had a] bruise on her shoulder [and it] hurt,'" and asked if defendant knew how it happened. Defendant did not respond.³⁴

34 C.F. testified about an incident where defendant got angry and physically punished M.F. after reading something in the home/school notebook.

March 2013 - Reports to Social Worker About Bruises

On March 4, 2013, defendant called Ms. McCully. According to Ms. McCully's notes, defendant reported M.F." 'was hit by her brother over the weekend. Bloody nose, black eye, popped blood vessel, swollen.' "

Also on March 4, 2013, defendant called Ms. Marr, the social work intern at Transitions, and reported an incident that occurred at lunchtime on March 2, 2013. M.F. had a bloody nose and said C.F. punched her. Defendant cleaned M.F.'s injury and decided there was no need for medical attention, and sent C.F. to his room as punishment. Defendant said she later found C.F. in M.F.'s bedroom, and they were fighting again. Defendant tried to stop the fight but C.F. pushed down M.F., and M.F." 'hit her face on the bed post, resulting in a black eye and a slight scrape on her cheek.' "³⁵ (Italics added.) Defendant said C.F. later apologized, and said he was in a bad mood and reacted aggressively toward M.F. because she teased him about being in trouble. Defendant said she put ice on M.F.'s eye and informed her school what happened.

35 March 2013 marks the first time that defendant blamed the bedpost in M.F.'s bedroom as the source of her bruises. She later blamed the bedpost as the cause of M.F.'s fatal internal abdominal bleeding.

Ms. Marr reported this incident to the county social worker. Ms. Marr later received a report about the black eye from Mr. Brannon, the school psychologist, who was concerned and wanted to make sure the social worker knew about it. On March 13, 2013, Ms. Marr went to defendant's house, M.F. was in good spirits, and her black eye had healed.

March 2013 - Social Worker's Visit to Defendant's House Because of the Children's Absences

The administrators at Webster Elementary were continually concerned about how often M.F. was absent from school, and defendant did not report the reasons for M.F.'s absences.³⁶ Ms. McCully believed the school district may have filed a report with state attendance review board about these absences.

36 L.F. testified that there were times when defendant kept the children home from school, she was not sure of the reason, and defendant sometimes made C.F. stay home if she wanted to punish him.

On March 13, 2013, Sharlene Garringer, a social worker with the department, met with defendant at her house because C.F. and M.F. were not attending classes. Ms. Garringer had no independent recollection of the meeting. According to Ms. Garringer's notes, defendant said that "she had already attended a staffing" with her social worker, the matter was addressed, a safety plan was created, and defendant was following it. The safety plan was for defendant to "send the children to school and let the school nurse determine if they needed to be sent back home."

Defendant further told Ms. Garringer that prior to that school term, the children "were home-schooled and had never attended public school. The children seemed to be catching every cold and illness going around. [Defendant] now admits that the kids were most likely acting or sick [sic] than they really were to be able to stay home."

Ms. Garringer met with C.F. and M.F. that day, noticed M.F.'s speech impediment, and the children did not disclose any physical abuse. Ms. Garringer did not have any independent recollection of how she spoke to the children, and conceded it was possible defendant was present when they talked.

Ms. Garringer conceded that, based on defendant's report, another social worker had already created an action plan, and it was possible the school's original referral about absences "somehow was missed and it wasn't reviewed when it should have been."³⁷

37 Ms. Burrow, the social worker who handled the children's file until their adoption, was aware there were problems with M.F. and C.F. being absent from school. She spoke to defendant about the matter and believed the issue was resolved.

Ms. Garringer accepted the truth of defendant's statements that the two children had previously been homeschooled, but she did not know if that was true. No further action was taken on this referral.³⁸

38 The children's biological mother testified they attended school when they lived with her. There is no evidence that either M.F. or C.F. were homeschooled prior to being placed in defendant's home.

Spring 2013 - More Bruises

Ms. Rosa testified about an incident that occurred the warmer months of the 2012- 2013 school year, when M.F. was wearing a T-shirt and hugged her. When Ms. Rosa embraced M.F.'s side, M.F. winced, said," 'Ow,'" and pulled away. Ms. Rosa asked what was wrong and M.F. shook her head. Ms. Rosa pulled up M.F.'s shirt about five inches above the top of her pants and saw three "little round bruises" that also were spots, and these marks did not make sense to her. The spots were a little smaller than a dime.³⁹Two of the three spots that were almost symmetrical to each other. Ms. Rosa testified that these bruises did not look brand new, "but they weren't old to where it was discolored and like yellowy-green like it's disappearing." She did not see any scabs.

39 These marks may have been the first evidence of the electronic shocking device being used on M.F.

Ms. Rosa advised other members of the special education staff about these bruises. Ms. Rosa called the department, reported what she saw on M.F.'s body, and also filled out the SCAR form. Ms. Rosa never received any follow-up from in response to her report.

April 2013

On April 15, 2013, defendant responded to a notebook message from Ms. McCully about M.F.'s toileting issues. Defendant wrote that M.F. was coming home with soiled underwear almost every day, and M.F. told her Ms. McCully did not let her go to the bathroom. Defendant also wrote that M.F. claimed she cut her hand on a metal measuring tape that Ms. McCully gave her, and defendant knew this was a lie. Defendant wrote that M.F.'s lying" 'about home and about school is out of control,'" M.F. told" 'crazy stories about stuff that happened at school,'" and defendant was glad M.F. was going to mental health because" 'she is very troubled right now.' "⁴⁰

40 There was no evidence M.F. returned for mental health counseling after she was discharged from Lake Street.

Defendant further wrote that Ms. McCully was going to notice" 'that [M.F.] has hit her eye again,'" it happened when she was in the shower," 'and I heard a big bang … but she had the door locked.'" When defendant unlocked the door, M.F. said she slipped and hit a soap bottle, and her eye was not swollen.

At trial, Ms. McCully testified that defendant's accusations about what happened at school were not true: M.F. was always supervised, and she was allowed to use the restroom.

On April 17, 2013, defendant reported to Ms. Marr that C.F. was hiding food in his bedroom. Defendant also said M.F. urinated in a box that she hid in her bedroom, she found multiple pairs of soiled underwear hidden in her bedroom, and M.F. did not explain when or where she soiled the underwear. Defendant further reported that M.F." 'fell in the shower and hit her face, causing a slight bruise under her left eye.' "

April/May 2013 - Attempted Mental Health Referrals for M.F.

Ms. Marr testified there were ongoing discussions with defendant about having M.F. assessed for mental health treatment. There were referrals starting in April and May 2013, but defendant always reported these appointments were cancelled for various reasons.

May 2013 - More Personal Hygiene Issues

On May 1, 2013, Ms. Marr, the social worker, met with defendant and the family at home. Defendant said M.F. was taking food, and the school reported she refused to work and was disrespectful to her teachers. Defendant was concerned that time-outs and removing privileges were not working.

On May 2, 2013, Ms. Mee, the class aide, reported to Ms. McCully that M.F. had toileting issues and arrived at school wearing Pull-Up diapers.

On May 6, 2013, Ms. McCully spoke to M.F.'s social worker, Rachel Garcia, about four specific concerns: M.F. was soiling her underwear and wearing Pull-Up diapers; M.F. missed field trips; M.F. may have accepted a ride from a stranger; and she had multiple absences without excuses.

On May 15, 2013, Ms. Marr met with defendant, who wanted to talk to the school's vice principal because M.F.'s teacher "was overreporting to CPS." Defendant reported M.F. had a bruise on her lip because she ran into a door frame the previous day and was not watching where she was going.

On May 24, 2013, Ms. Marr went to M.F.'s school and observed her in class, and M.F. was compliant and completed her work.

On May 27, 2013, Ms. McCully received a note from defendant that M.F. was complaining of" 'a hurt ankle/leg,'" and she could only watch and not participate at a field trip to" 'Pump It Up.' "⁴¹ Defendant then wrote:" 'Negative attention-seeking behavior?' "

41 Ms. McCully testified that "Pump It Up" was "like a bounce house type thing with, like, a bunch of air-filled, jumping, trampoline, slide-type things."

Ms. McCully testified that her recollection of this incident was that defendant informed her of an injury to M.F., but M.F. "didn't talk about it and didn't act like she was injured, and so we were going on a field trip to Pump It Up probably for a thank you, end-of-the year thing, and … the note was just to not have her participate, but watch."

On May 29, 2013, Ms. Marr met with defendant, who reported M.F. complained her ankle was hurting, but defendant" 'thought it was because she didn't want to go on a field trip.' "

2013-2014 School Term

The 2013-2014 school term was M.F.'s last year at Webster Elementary. She was 11 years old and in the fifth grade. She continued attending special education classes.

Ms. Shepherd testified that during the 2013-2014 school year, the school staff was concerned because they continued to see injuries on M.F. Ms. Shepherd reminded them of their obligations as mandated reporters, and that they had to report any suspicions that something was happening to the child in the home.

Ms. Shepherd's staff was also concerned because "there had been calls previous to [CPS] on behalf of [M.F.]" and "things had not been occurring." Ms. Shepherd personally called the department approximately three times in the 2013-2014 school year.

Ms. Baughman testified that M.F.'s demeanor changed in the 2013-2014 term, and teachers brought her to Ms. Baughman's office because she had injuries that were "progressively getting worse." M.F. did not want to talk to Ms. Baughman about what happened.

October 2013

In October 2013, Ms. Flores saw bruises on M.F.'s chin that looked like dots or spots of bruising. The spots were half the size of an eraser, and there was a curved pattern to all the bruises.⁴² M.F. also had a bite mark that was visible below her sleeve, between her elbow and shoulder, and bruises in "the shape of a mouth."

42 These marks may have been from the Taser device.

October 2013 - Report About Absences

On October 18, 2013, Ms. McCully called Ms. Garcia, the social worker, and reported M.F. had been absent seven days in the prior two weeks.

On October 21, 2013, defendant went to Ms. McCully's classroom and was upset that she contacted Ms. Garcia, and declared she was going to remove M.F. from her class. Ms. McCully testified her relationship with defendant became progressively worse after this encounter.

January 2014

On January 31, 2014, defendant called Ms. McCully and said M.F. was sick with a cough. Defendant further stated both M.F. and C.F. had bruises and cuts because of a bicycle crash.⁴³

43 The record infers that C.F. returned to Webster Elementary for his sixth grade year in the 2013-2014 school term. Ms. McCully testified that she saw C.F. on campus at the time of defendant's January 31, 2014, telephone call about the alleged bicycle crash, and he had bruises and cuts on his cheek. Also, at this time, C.F. was between the two surgeries for his broken right elbow and testified that defendant continued to physically abuse him.

Ms. McCully testified that by January 2014, M.F. increasingly missed the class's field trip and fun activities. Ms. McCully talked to defendant about it, and defendant said M.F. missed field trips because of doctor's appointments, being out of town, or as a result of "consequences" because defendant wanted M.F. "to stay at school and miss something because of behavior at home."

February 4, 2014 - Significant Facial Bruise ⁴⁴

44 As set forth in part V, ante, defendant began taking C.F. to multiple hospitals to obtain opioid prescriptions beginning in February 2014, continuing to the day before M.F. was murdered in October 2014. This behavior overlapped the period when the school staff realized M.F.'s physical injuries were becoming more frequent and serious.

On February 4, 2014, Ms. McCully saw bruises on M.F.'s cheek and the side of her jaw and sent her to the office.

Ms. Shepherd was in the office when M.F.'s teacher brought in M.F. because the teacher saw" 'a significant bruise'" on her left jaw line.

According to the report Ms. Shepherd later filed with the department, M.F.'s bruise was" 'approximately three inches by two inches. I sat with [M.F.] in the office and asked her about the bruise. Initially, when I asked her, "What happened to your cheek?" she responded by saying, "I don't know." After telling her that I need her to be honest and that she would not be in trouble, I asked her again how she got the injury. She then replied, "I can't tell you." I asked her why she could not tell me, and she replied, "I scared." I asked her why she was scared, and she shook her head "no" and began to cry. [¶] After I consoled her and told her I want … to help her be safe, I asked, "Who gave you that bruise?" She again began to cry and said, "[C.F.]" I asked her how he did it, and she initially said he was just stretching. I asked her if [C.F.] was angry when he made the bruise, and she shook her head "yes." According to [M.F.], [defendant] was aware and sent [C.F.] to his room.' "

Later, on February 4, 2014, defendant called Ms. McCully and said M.F. reported she was sent to the office because of her bruises. Defendant sounded angry and upset. Defendant said M.F. had been" 'fighting with her brother, hoarding food in her room, and very emotional. She also talked about [C.F.] having to go in for surgery again after he had a "bone bruise when he crashed again last week and got a bunch of bruises,' (M.F. did also), plus cut on tongue, inside lip, scratches on face."⁴⁵

45 C.F. was scheduled for surgery in February 2014 to remove the pins that were previously placed in his broken elbow. There was no evidence the surgery was required because of a separate injury.

Defendant said she had not noticed the bruise on M.F.'s face," 'but that it was probably because she had been fighting a lot lately with [C.F.] She said they cannot even be in the same part of the house together and that they have done this off/on since she has had them.' "

February 5, 2014 - Report About Significant Facial Bruise

On February 5, 2014, Ms. Shepherd called the department and reported the bruise she saw on M.F.'s face the previous day. Ms. Shepherd followed up by faxing the SCAR form, and further reported that M.F. was" 'a learning disabled student with speech language deficits. There is a history of concern regarding [M.F.'s] welfare.'" Ms. Shepherd could not recall if the department contacted her about this report.

At trial, Ms. Burrow, the social worker who handled the children's file until their adoption, testified that there was evidence that a report was made on February 5, 2014, along with a SCAR form, but that information was not entered into the computer system.⁴⁶

46 The court granted defendant's objections and excluded further evidence about how the department handled particular referrals. However, the court admitted evidence that investigators could not find the February 5, 2014, referral until a copy was provided to them by Ms. Shepherd.

February 7, 2014 - Finalization of Adoption

On February 7, 2014, the adoption of M.F., C.F., and G. by defendant and Gerardo became final, even though there was an open referral about suspected abuse filed on February 5, 2014, based on M.F.'s significant facial bruise.

February 26, 2014 - Report About Large Abdominal Bruise

On February 26, 2014, Ms. McCully took M.F. to Ms. Baughman's office and reported that when M.F. bent over a chair, she saw" 'some big bruising'" on M.F.'s right side around her waist. Ms. McCully said she asked M.F. what happened, and M.F. shrugged her shoulders and said she did not know.

Ms. Baughman testified M.F. was a "tiny-framed little thing," and had "a deep tissue bruise" on her abdomen, it was "very deep, deep purple," and "covered quite a bit of her side," starting above her belly button and wrapping around to her back.

Ms. Baughman took photographs of the abdominal bruise, and asked M.F. what happened. M.F. said that" 'she woke up this morning still kind of asleep, tripped over her own foot and fell onto her bed where the wood is and hurt herself. [M.F. stated] she did not even know that she had bruised this bad. She said it hurt, but not enough … for the bruise she thought.'" (Italics added.)

Ms. Baughman asked M.F." 'over and over that if someone was hurting her, she would tell me …. She stated, yes, she would, for right now….'" Ms. Baughman stated that despite M.F.'s answer, she felt the bruising was too old for it to have happened that day. Ms. Baughman believed M.F. made up this story because the bruising was a very severe, deep-tissue bruise: "It wasn't a bruise that I have ever seen, being a mom of two boys, that was caused just from walking - or, to me, personally, walking or stumbling and falling over the foot of your bed onto your bed frame."

Ms. Shepherd also saw M.F. on February 26, 2014, and saw the "very large bruise on her side. I don't recall what side it was on, but it was similar to the shape and the size of a football, a large bruised area on her side." M.F. was "walking very gingerly that date, not her typical normal cadence of walk." Ms. Shepherd had already noticed that M.F. was moving slowly when she sat down for lunch in the cafeteria that day.⁴⁷

47 February 2014 marks the second time that M.F.'s bedpost is blamed as the source for her bruises. During the October 2014 autopsy, the pathologist discovered she had a prior, nonfatal injury to her mesentery, it was months old, and the injury and healing process would have been extremely painful. It is possible that the February 26, 2014, abdominal bruise may have been the source of the previous mesentery injury. The autopsy also showed M.F. died from blunt force trauma to her abdominal area that resulted in internal bleeding from the mesentery. As will be discussed below, defendant repeatedly stated the girl inflicted her own fatal injuries by throwing herself or falling on the wooden bedpost.

Ms. Baughman reported the abdominal bruise to the department. Ms. McCully also reported the same bruise.

Response to February 26, 2014, Report of Suspected Abuse

On February 26, 2014, Ms. Rutherford was the screening social worker for the department and received Ms. McCully's call about suspected abuse of M.F.⁴⁸Ms. McCully advised she had previously filed another report of suspected abuse a few weeks earlier.

48 At trial, Ms. Rutherford initially refused to disclose the identity of who called in the report because it was confidential. The prosecutor advised the court that the confidentiality issues had been resolved, and the court ordered Ms. Rutherford to disclose the caller's identities.

Ms. Burrow was the on-call social worker and referred the matter to law enforcement to respond to defendant's house. At trial, Ms. Burrow testified the records for the February 26, 2014, referral did not show that a report of suspected abuse had also been made on February 5, 2014.

Around 5:20 p.m. on February 26, 2014, Deputy Kirchert of the Madera County Sheriff's Department went to defendant's house to conduct a welfare check on 11-year-old M.F. because of the abdominal bruise. He met with defendant and M.F. and took photographs of bruises on M.F.'s side and calf.

Deputy Kirchert testified M.F. had a "large bruise kind of wrapped around her right side." He spoke to M.F. for five to 10 minutes and asked how she got the bruise. M.F. initially said she did not know, but eventually said she hit her side on "the post of the bed." Kirchert observed wooden posts at the four corners of the bedframe in M.F.'s bedroom. No further action was taken on the report of suspected abuse.

Confidential Report About Abdominal Bruise Sent to Defendant

Ms. McCully testified that after she made the February 26, 2014, report about M.F.'s abdominal bruise, the department issued a "Notice of Referral Disposition" (NORD) in response to her report. This document was supposed to remain confidential. However, the department accidentally mailed this confidential report to defendant, and M.F. brought it to school.

The confidential report that was erroneously sent to defendant identified Ms. McCully as the party who reported the suspected abuse. After receiving this confidential report, defendant wrote to Ms. McCully in the notebook:" 'You don't think we know who's making reports, and now … we know that it was you.' "

Mr. Brannon testified that the department's responsive document was supposed to be sent to the school and remain confidential, but it was sent to defendant "in … what CPS said, [was] in error."

Ms. Shepherd testified when the school's staff learned that the department erroneously sent the confidential report to defendant, "there was some frustration" and concern that it "was not doing a quality job" in response to their repeated reports about M.F.'s injuries and suspected abuse.

March 3, 2014 - Defendant's Complaints About Reports

On March 3, 2014, defendant complained to the school administration about Ms. McCully reporting her to the department. On the same day, defendant wrote a long note to Ms. McCully in the notebook, stating that M.F. was embarrassed because the teachers and staff were picking on her, the deputy who interviewed M.F. found the child abuse allegation unfounded, the deputy allegedly told M.F." 'no one should ever ask her to remove or lift up any of her clothing to expose her naked body without a parent, social worker, or law enforcement officer present," and the deputy instructed M.F. to refuse any request to expose her body. Defendant claimed their social worker was also very upset about what happened to M.F., and Ms. McCully could get into trouble. Defendant said M.F. was upset, she did not want to be at Webster Elementary anymore, and she wanted to be homeschooled.

When Ms. McCully testified at trial about this note, she became emotional as she read the passage that defendant might homeschool M.F:

"I felt that this was the beginning of when [defendant] decided to homeschool, and we were all worried when [M.F.] left for the summer that nobody - I mean, she had so many injuries, and she was coming to school, and we all were seeing all of the injuries that we thought, 'Oh, my gosh, who is going to be there in the summer to check on her?' And we were all concerned. [¶] So I felt like that was the beginning of when it was, you know, the path towards death." (Italics added.)

March 2014 - Webster Elementary's Staff is Admonished Not to File Frivolous Complaints

Mr. Brannon testified that after defendant received the confidential report about the prior referral, "there were accusations that we, as a school, were picking on the family, which triggered us scheduling a meeting." A meeting was held between defendant and M.F.'s IEP team in the spring, possibly in March 2014.

Mr. Brannon testified that the purpose of the meeting was to address concerns about when a teacher should "make a call to the social worker versus to a CPS worker." "For a call to a social worker, it would be … if we've had a parent contact us and say, 'You know, we have this concern at home. This is what happened.' We may follow up with the social worker to kind of verify. May talk to a social worker if we're seeing negative behavior or maladaptive behaviors versus CPS is when there's suspected child abuse. That's when we would make the call to CPS."

Ms. Rosa, an aide in M.F.'s special education class, testified that "CPS" came to Webster Elementary and met with the staff about filing reports.

"Q What was that purpose of that meeting?

"A We were told as a school site, specifically our department, that we were making frivolous complaints and that they wanted to come out and train us on how we should be reporting." (Italics added.)

March 2014 - Defendant Again Complains About Abuse Reports

On March 6, 2014, defendant wrote a message to Ms. McCully in M.F.'s notebook, and accused Ms. Flores of pulling M.F. aside and asking her" 'personal questions about her home life and to remove her clothing or pick up her clothing so [Ms. Flores] could "check her for bruises." '" Defendant further wrote that C.F. complained about Ms. Flores asking him personal questions "'about his broken arm,'" and warned the school that they were violating his right to privacy.⁴⁹

49 Defendant's note refers to C.F. being on Webster Elementary's campus, and again indicates he returned to Webster Elementary for sixth grade in the 2013-2014 school term.

Ms. Flores testified defendant's accusations in the notebook were not true, she never raised M.F.'s clothing on the playground, and she did not do these things to M.F. and C.F. Ms. McCully similarly testified that she never saw Ms. Flores engage in the inappropriate behavior described by defendant in the notebook, and M.F. was very close to Ms. Flores and would stay near her during recess.

On March 7, 2014, Ms. McCully wrote to defendant in the notebook that they would talk at the upcoming IEP meeting. Defendant responded with another long note, and said their behavior toward M.F. was" 'disgusting,'" " 'deplorable,'" and they had an" 'unhealthy obsession with my daughter.' "

Ms. McCully testified that defendant's accusations were not true, they were not "obsessed" with M.F., and they were only concerned about her best interests.

March 19, 2014 - Report About Sores on M.F.'s Back

On the morning of March 19, 2014, defendant called Ms. McCully and said M.F." 'came home with a bump near her eye yesterday," but the school did not notice or hear of any issue. Defendant said she was not sure which eye was injured and did not believe M.F.'s story about what had happened because she kept changing it.

On the same day, Ms. Mee reported to Ms. McCully that M.F. had sores on her face and chin. Ms. McCully thought they were dry patches and asked M.F. about them. M.F. said that" 'she got really angry at night at home and bit her lips onto her chin really hard.' "

Also, on this day, M.F.'s head was down on her desk, and she was very sad or asleep. As M.F. slouched over, her shirt rose up about seven inches above her waist, and Ms. Smith, the class aide, saw 15 or 20 sores that "looked like teardrop-shaped wounds all over her back." The sores were on her lower back and looked like burns or gouges.⁵⁰Ms. Smith also saw marks under M.F.'s lower lip. M.F. said she was very angry and bit her own chin.

50 These marks could have been burns from the Taser-like device.

Ms. Smith alerted Ms. McCully and Ms. Mee, and they walked over and observed the sores on M.F.'s back without touching her. Ms. Mee saw at least 10 or more sores on M.F.'s mid to lower back that were shaped like tear drops.

Ms. McCully saw small scabs on M.F.'s back when M.F. leaned forward and her shirt went up, and they were visible above the waistline of her pants. The scabs looked like "little bruises," and extended from the center of her back out to the flank. Ms. McCully testified that they were like blisters "from a burn," and "[w]e did not know what caused them." She believed they were in various stages of injury because M.F. had picked off the top of some of them, others were "a scabby, bleeding kind of thing," and they did not appear to be recent burns. There were about 15 marks on her back. Each mark was about one-quarter or one-eighth of an inch large, and "[l]ike a rectangle, like a raised bubble, kind of whitish."

Ms. McCully took M.F. to the office. Ms. Shepherd asked M.F. to raise her shirt, and M.F. showed the midsections of her stomach and back. Ms. Shepherd saw "a variety of what I would describe as little pick marks, both on her stomach but also on her back with little scabs."

"[They were] small little marks, some were scabs that looked like they were healing, in somewhat of a pattern, as if someone was picking at their own skin to make that injury. And the only thing that was odd about that, though, is it was also in areas on her back, the same types of markings, repetitive areas. There was some that were healed, healed and scarred, and some that were fresh."

Ms. Shepherd saw more than a dozen marks on M.F.'s stomach, and the same amount or even more on her back that "covered a majority of the skin area." The marks were small, maybe a centimeter, and "there were multiple of them. So it wasn't large scrapes or anything. That's why I call them pick marks, like someone was picking at certain parts or digging into skin. I've been in education for 20 years now. It's not something that I've regularly seen on a child as an injury." The "skin was missing, not just a slice. When you get a paper cut, you have just a thin slice on your skin. This was more of a gouge or a chunk was missing or had been missing from the skin."

Later, on March 19, 2014, Ms. Smith called the department and reported the sores on M.F.'s back that were in the shape of tear drops.⁵¹ Ms. Smith testified that prior to this date, she had made other reports to the department. She only received two responses, that her reports were "unfounded."

51 Ms. Mee believed she participated in this call on a speakerphone since she had also seen the sores.

Ms. Smith was concerned that "some of the things that we had seen, had not been called in," since "there was enough things that somebody should have been asking some questions, maybe even one of us." "I thought that maybe … CPS would come in and talk to [M.F.] or CPS would come in and talk to us, what we saw. Nobody did."

March 20-21, 2014 - Reports About Marks on Stomach

On March 19, 2014, Ms. Smith only saw the marks on M.F.'s back. On March 20, 2014, M.F. was in class, raised her shirt, and stared at her own stomach. Ms. Smith saw 12 or 15 sores on M.F.'s stomach that looked the same as those on her back. Ms. Smith asked M.F. about the sores, and M.F." 'just stared as if caught'" and said that she did not want to tell. M.F. was also very dirty that day.

Ms. Baughman testified that on March 20, 2014, M.F. came into her office and asked if "she could show me her tummy. [M.F.] lifted her shirt up, and she has scratches about a foot long and six inches wide … across the right. They appear to be a few days old and are healing already." Ms. Baughman asked M.F. what happened. M.F. said it was" 'a road rash'" because she fell at school the other day, her shirt came up, and she got scratched, but she never went to the office to get it cleaned.

Ms. Baughman testified that based on her experience, the scratches on M.F.'s stomach were not from road rash, which occurs when someone skids across pavement and suffers injuries to the surface of their skin. Instead, these marks consisted of four horizontal rows of "actual lines" that were evenly spaced. The marks were deep, indented in M.F.'s skin, looked "like digs," and were below her belly button and above the pelvis. There was some scabbing in a few places.⁵² Ms. Baughman believed M.F. was lying about what happened and reported the marks to the department.

52 C.F. testified that defendant would scratch her nails across his stomach and make gouge marks on his skin. M.F.'s marks could have been consistent with this type of abuse.

On March 21, 2014, Ms. Smith filed the written SCAR form about the sores on M.F.'s back, stomach, and lower lip.

On March 20 and 21, 2014, Ms. Burrow was again the on-call screener and received reports about M.F. and C.F. on two consecutive days. Ms. Burrow testified that there was no listing for the February 5, 2014, report in the records for the March 20, 2014, reports.⁵³

53 The court granted defense objections and excluded further evidence on how the department handled the March 2014 reports.

Exchanges Between Defendant and Ms. McCully About Scabs and Limp

On March 20, 2014, Ms. McCully wrote to defendant in the notebook that M.F. said she bit her lip last night when she was really mad. Ms. McCully saw scabs under her lower lip and asked defendant what happened. Defendant did not respond to this note.

On March 21, 2014, Ms. McCully wrote to defendant in notebook that M.F. was limping, her knee and/or foot was hurting, ice did not help, and M.F. was hot" 'because she would not take off [her] sweatshirt.' "

Also on March 21, 2014, defendant called Ms. McCully" 'to explain some health issues [M.F.] has had this past week.'" Defendant said M.F. had" '[s]cabs on [her] stomach and back she thinks are from [M.F.] and [C.F.] playing zombies. This a.m., all the scabs were picked off. [Defendant said she] called county mental health for emergency appointment for both in case self-injurious. Also stated that [M.F.] hit [C.F.] in the eye with boot. Up late crying and talking about abuse from birth mother's boyfriend.' "

March 22-31, 2014 - M.F.'s Hospital Visits and Defendant's Explanations

On March 22, 2014, defendant took M.F. to MCH's emergency room and reported that she had right ankle pain. A physician determined M.F. had limited range of motion with some swelling, and the X-ray was normal. M.F. was diagnosed with a sprain, her ankle was placed in a fiberglass splint, and she received a prescription for a small amount of Tylenol with codeine.

On March 24, 2014, defendant called Ms. McCully to explain that M.F." 'has an injured foot,'" and she was wearing a soft cast and on crutches. Defendant said M.F. was limping and complained of pain on Friday, they saw the doctor on Saturday, the doctor said her foot was swollen and there were" 'signs of stress like [she] landed hard.'" Defendant and M.F. could not explain when or how she hurt her foot, and defendant said she was still hoping to schedule a mental health appointment for M.F.

On March 28, 2014, defendant called Ms. McCully to report M.F. was no longer using the crutches, and the soft wrap was removed from her ankle. Defendant said that she believed M.F. was using the limp" 'possibly for attention.'" (Italics added.)

On March 29, 2014, defendant took M.F. to the emergency room at Clovis Community Hospital and reported M.F. had an ankle injury, she had been limping on her right ankle for about one week, it was not getting any better, and M.F. was crying from pain. Defendant stated that M.F. had a mental delay, and she was" 'special needs so cannot give an accurate account of the injury….' "

A nurse practitioner asked M.F. how her ankle was injured. M.F. "couldn't give a great explanation of how; [she] just had pain. And since she was special needs, the family didn't even understand how she really hurt the ankle either." An examination showed M.F.'s right ankle was tender, it was not swollen, there was "scant bruising" that was barely visible, and she had full range of motion. M.F.'s right ankle was wrapped in an Ace bandage, and she was given crutches.

April 2014

On April 3, 2014, M.F. was sad, looked like she had been crying, kept her head down, and did not want to work at school. M.F. was asked several times if she was okay and needed anything, and she would not answer. Ms. McCully called defendant, and M.F. went home because she was vomiting.

On April 3 and 4, 2014, Ms. McCully asked defendant in the notebook to sign the amendment to M.F.'s IEP so they could start the referral process for counseling at school. On April 7, 2014, defendant responded in the notebook and claimed the referral form did not make it home, she found a torn envelope in M.F.'s bedroom, and M.F. was hiding and throwing them away for some reason. Defendant suggested giving the form to C.F.⁵⁴

54 Defendant's note was another indication that C.F. was back at Webster Elementary for the 2013-2014 school term.

On April 9, 2014, Ms. Mee saw a fat bump on the right side of M.F.'s inside upper lip. It looked white and could have been a bite or canker sore. Ms. Mee asked M.F. about it, but she did not answer and looked down.

April 10-11, 2014 - Reports About Black Eyes

On or about April 10, 2014, Ms. Flores made a note that M.F. arrived late to class, and she had two black eyes, with redness on the "[t]op inside right eye," and bluish-purple bruising on the "left eye, bottom corner outside." The two black eyes lasted a few days.

Ms. McCully testified M.F. arrived late to school that day, and defendant was with her. M.F. had injuries to both eyes. Her right eye was swollen/bruised on the upper eyelid toward center, and left eye had scratches and bruises towards the outside. Defendant told Ms. McCully that M.F. said she was hit by a ball the previous day at recess, but defendant was not sure, and it could have happened at home. Ms. McCully determined there had been no report of a playground injury or that M.F. went to the office for an ice pack.

On the same day, Ms. McCully called the department and reported M.F. had two black eyes; she also e-mailed the SCAR form with the same report.

Also, on the same day, Ms. McCully wrote to defendant in the notebook, said she found the counseling referral form in M.F.'s backpack, it was unopened, and it was important to get started on the process. Ms. McCully also wrote that M.F. had been" 'bickering'" with a peer, and they would be separated. Defendant wrote back that M.F. had more bad behavior at home, she was "stealing" food, and claimed the teachers left the children unsupervised and allowed the peer to pick on her.

Ms. McCully testified that these statements were not true, the events described by defendant did not happen, and M.F. was never unsupervised in class. Defendant never responded to her request to sign the counseling form.

On April 11, 2014, Ms. Smith called the department and made her own report that M.F. came to class the previous day with two black eyes, there were fresh bruises around both eyes, about the size of a quarter or half-dollar, they were "very obvious" on outer part of her left eye and the inner part of the right eye, and the right eyeball was very red, as if blood vessels had popped.

Ms. Smith advised the dispatcher about her previous report in March 2014, about the sores she saw on M.F.'s belly and back. When Ms. Smith filed the written SCAR form about the black eyes, she again reported the prior injuries from March 2014.

Response to April 11, 2014, Referral

On April 14, 2014, the report about the black eyes was assigned as a 10-day referral to Karlene Ortiz, a social worker. Ms. Ortiz and an intern, Daisy Prieto, made multiple attempts to contact defendant by going to her house and leaving a card, making telephone calls, and sending a letter. Defendant never replied to these contacts.

On April 25, 2014, Ms. Ortiz and Ms. Prieto went to Webster Elementary and contacted M.F., C.F., A.F. and L.F. The children did not make any disclosures about abuse.

On May 12, 2014, Ms. Ortiz closed this case because no contact was made with defendant.

Other Observations About Black Eyes

The school staff testified about additional times when they saw M.F. with a black eye, based on references to when other incidents occurred.

Ms. Flores testified that at some point after M.F. had two black eyes in April 2014, M.F. came to class with one black eye and, three or four weeks later, she came to school on another day and the other eye was black. Ms. Flores remembered the incidents because "the significance of having two more black eyes after she'd already had two black eyes before, stuck with me."

Ms. Rosa testified that one morning, she saw M.F. in class with a black eye on her left side that was discolored and "significant." Ms. Rosa asked M.F. about it, and M.F. shrugged and did not respond. Ms. Rosa did not report this to the department. Ms. Rosa testified about another incident when she saw M.F. on the playground and saw that she had another black eye that was fading. Ms. Rosa asked M.F. about it, and M.F. giggled and walked away. Ms. Rosa did not report this to the department.

April 29, 2014

On April 29, 2014, Ms. McCully called defendant shortly after school started and reported M.F. was crying and refused to say what was wrong. M.F. went home with a "stomach bug," and she was crying and hunched over.

When defendant picked up M.F., she went to Ms. Baughman's office. Defendant said that "she had received a phone call from Mrs. McCully stating that [M.F.] was crying so hard she could not do her work and that [M.F.] had went to the restroom, came back stating that she threw up. [¶] [Defendant] stated that [M.F.] did throw up last night …, but felt it was a one-time thing." Defendant took M.F. home.

May 6, 2014 - Report About Facial Bruises

On May 6, 2014, Ms. McCully testified that when M.F. arrived at school, she was walking slow, hunched over, holding her stomach, and complained of a stomachache. Ms. McCully asked M.F. what happened, and she could not explain. Ms. McCully called defendant at 10:40 a.m. Defendant said M.F. was hit in the eye with a tetherball when she was playing rough with C.F. Ms. McCully asked defendant to sign papers for a field trip and referral for counseling, but defendant never did.

On May 6, 2014, Ms. Mee observed M.F.'s left eye was blood shot in the corner, with a little bruising and discoloration on the inner part of her nose. When asked what happened, M.F. said she was hit in the eye with a tennis ball at her grandma's house.

Also on May 6, 2014, Ms. Smith called the department and reported M.F. had bruises when she arrived at school that morning. The inside of her left eye, close to the nose, was black, bruised, and reddish-purple. M.F. also walked slow and bent over, as if she was in pain. She put her head down on the desk and did not want to play or talk. Ms. Smith testified that "it was so hard to see [M.F.] hurt so often. She was hurt a lot and she was in a lot of pain that day," but M.F. did not say she was in pain when asked. M.F. did not stay at school the entire day and was picked up early.

Response to May 6, 2014, Report

On May 6, 2014, Ms. Rutherford was the screener and received the referral from Ms. Smith about the left eye bruises. Ms. Rutherford testified that the April 11, 2014, referral about the two black eyes was still open and being investigated by Ms. Ortiz and Ms. Prieto.

Ms. Ortiz testified that she did not receive notice about the May 6, 2014, referral even though her case, based on the April 11, 2014, referral, was still open at the time. Ms. Ortiz reviewed the records for the May 6, 2014, referral, and explained that it did not "identify specific allegations of how the child is being abused or neglected; therefore, it will be evaluated out," which meant "we wouldn't have responded."⁵⁵

55 The court overruled defense counsel's objections to the evidence that defendant failed to respond to the social workers' messages about the April 10-11, 2014, report, and that the May 6, 2014, report was not investigated, and agreed with the prosecutor the evidence was relevant to show defendant interfered with the social worker's attempts to contact her to avoid being investigated.

May 2014 - More Bruises

On May 12, 2014, defendant called Ms. McCully and explained that M.F. and C.F. got into a fight, her nose was blue and swollen, she threw up three or four times, and defendant thought it was" 'a behavior to stay home.'" Defendant said that M.F. scratched and bit C.F. Ms. McCully again reminded defendant about signing the field trip and counseling referral forms.

On May 14, 2014, M.F. was at school and a staff member took her to the office. Ms. Shepherd testified M.F.'s nose was swollen within the bridge, right underneath her eyes, and her bridge was as wide as her nostrils. One eye was darker than the other.

Ms. Shepherd took a photograph of the bruises on M.F.'s nose and eyes. She also took photographs of the marks on M.F.'s stomach and back that she initially saw and reported in March 2014, when they were open wounds. By May 2014, the marks were still present and "healed, but scarred."

May 15, 2014 - Report to the Department

On May 15, 2014, defendant wrote to Ms. McCully in the notebook that M.F. got into a fistfight with C.F., he punched M.F. in the face, and she got a swollen and bruised nose but said she was okay. M.F. stayed home because she threw up. Defendant also wrote," 'Don't know if this is an attention thing now?' "

On the same day, M.F. came to Ms. Baughman's office with a contusion on the bridge of her nose that was blue and dark purple. M.F. said C.F. hit her when they got into a fight at home the previous day. M.F. did not know why they were fighting.

Ms. Shepherd testified that at 9:00 a.m. on May 15, 2014, she e-mailed a report to the department about swelling on M.F.'s face and the bruise across the bridge of her nose. She also sent photographs of the marks that were still visible on M.F.'s stomach and back that were reported in March 2014.

"I was concerned about the escalating injuries and the frequency of injures that she was receiving. And so when I was in communication with [CPS] making my report [in May 2014], I was concerned about the level of injuries in speaking to … Valerie Rutherford … the social worker, and I wanted to indicate that this has been an ongoing concern that we've had, we've made multiple reports, and that we felt that the situation was very serious."

Ms. Shepherd testified that she included her prior reports along with the current referral about the escalating injuries because she was "fearful that [M.F.] was going to end up dead."

May 15, 2014 - Social Worker's Visit to Defendant's Home

On May 15, 2014, Ms. Rutherford was the screener and received Ms. Shepherd's report of suspected abuse.

On the same day, Jerica Ramos, a social worker, interviewed M.F., C.F., and L.F. at their school. Both M.F. and C.F. gave similar statements: they were fighting in the backyard, he hit her nose, and they were not physically abused by their parents. M.F. was timid and C.F. was quiet and withdrawn. L.F.'s statement, however, was inconsistent with their story. L.F. said M.F. hit her nose on basketball pole in front yard after school, and C.F. was inside the house when it happened. Ms. Ramos testified that L.F. was quick to respond, very bright, and seemed very sure of herself.

Also on May 15, 2014, Ms. Ramos went to defendant's home unannounced, and met with defendant to investigate the report of alleged general neglect and physical abuse. Defendant gave consent for Ms. Ramos to enter the house. Defendant said that she had been reported by the school several times and felt frustrated and targeted. According to Ms. Ramos's notes, defendant said C.F. and M.F. had an altercation in the backyard of his home when they were not supervised, this was not the first time it occurred, M.F. reported C.F. had punched her, and M.F. did not always tell on C.F. and wanted to protect him. Defendant also said both children had" 'mental health needs,'" but they were not in treatment and their services were discontinued.⁵⁶ Defendant said that she disciplined the children with timeouts or taking away things. Defendant said that she and her husband did not use drugs.

56 There was no evidence that C.F. was diagnosed with mental health issues or received counseling.

Ms. Ramos was concerned about the children and decided to create a safety plan. Defendant signed the safety plan and agreed that M.F. and C.F. would not be left alone or unsupervised at home, she would take M.F. to the emergency room to address a possible concussion or make an appointment with their primary care physician, and she agreed to get mental health services for the two children. The safety plan did not apply to school. Ms. Ramos would monitor defendant's compliance with the safety plan.

Ms. Shepherd testified that she later received a response from the department about her May 15, 2014, report, and that defendant had been reminded about the requirements of caring for her children.

May 15, 2014 - Defendant Takes M.F. to St. Agnes

At 5:33 p.m. on May 15, 2014, defendant took M.F. to the emergency department at St. Agnes Medical Center and saw a nurse practitioner. Defendant reported that M.F. had a physical altercation with her brother two days earlier, and he hit her in the face that resulted in bruising to her nose. She did not report that M.F. was vomiting. M.F. was alert, cooperative, and did not appear in acute distress. She had mild swelling and bruising on her nose, and no facial injuries, concussion, or neurological symptoms, and was discharged.

On May 16, 2014, defendant contacted Ms. Shepherd because she was upset about the latest reports to the department, that the social worker pulled M.F. and C.F. out of class the previous day, and also went to defendant's home and created a safety plan for the children. Defendant "threatened to get a lawyer because of the calls to CPS."

On June 27, 2014, Ms. Ramos closed her May 15, 2014, referral about defendant and the two children.

May 27-28, 2014

On May 27, 2014, Ms. Mee made a note in M.F.'s records that she was acting differently, walking in pain, and had the odor of runny stool. M.F. had scratches on her face, dirty hair, and was not clean.

On May 28, 2014, Ms. Mee noted in M.F.'s records that she was still walking differently, it appeared that it hurt when she got up, her face had more scratches, there were bruises on her face, and" 'her eyes are really dark like she isn't sleeping.' "

June 2, 2014 - M.F.'s Two Medical Visits

Clovis Community Hospital

At 2:29 p.m. on June 2, 2014, defendant took M.F. to the emergency department at Clovis Community Hospital. A physician's assistant conducted the initial triage at 2:45 p.m.

Defendant reported M.F. had a burn on her left palm that "occurred by picking up a piece of corn out of boiling pot of water last night with a fork, then placing the hot corn in the palm of her left hand. She told her mom about this after school today due to pain. Child is special ed due to fetal alcohol syndrome."⁵⁷ (Italics added.)

57 L.F. testified that she once saw M.F. burn her hand when she was trying to grab a piece of corn on the cob when they were in the kitchen at defendant's house. The corn was too hot, and she dropped it on the floor. Defendant grabbed M.F.'s hand, looked at it, and told her not to do that again.

M.F. received an ointment for the burn with a medicated dressing. Defendant was advised about the need for a referral to the burn clinic and follow-up appointment, and she appeared eager to get the necessary information. However, defendant and M.F. left the hospital without notifying the staff or getting the information about the referral. A telephone message was left for defendant, but she did not return the call.

Kaiser

At 4:45 p.m. on June 2, 2014, defendant took M.F. to Kaiser Permanente and met with a physician. Defendant reported M.F. picked up corn from a boiling pot the previous day and was burned on her left hand. Defendant said M.F. never told her, and the burn was noticed at school. Defendant said M.F. was quiet and developmentally delayed. M.F. was four feet six inches tall and weighed 63 pounds, which was on the lower side for her age but within normal limits.

The physician did not see any injuries in M.F.'s mouth except for a small, scabbed lesion on the right lower lip and right lower chin. Her left hand was red and had small blisters on both the exterior and palm sides. She had first and second degree burns. A dressing with ointment was placed on her hand, defendant was given supplies and instructions, and was directed to return in one week.

June 3, 2014 - Report About Multiple Concerns

On Tuesday, June 3, 2014, during the last week of school, Ms. Shepherd saw M.F. with her left hand wrapped in an Ace bandage.

Also on June 3, 2014, Ms. McCully made a report to the department about five concerns: (1) M.F. was absent two days the prior week, defendant reported she had a strep throat, and there was no doctor's note; (2) M.F. came to school on Monday with a Band-Aid on her chin and marks on lip and face; defendant said she was not sure what happened but covered it so M.F wouldn't pick at it; M.F. said she cut her chin playing Twister with her cousins; (3) M.F. came to school on Tuesday with her left hand wrapped in gauze, and defendant said M.F. burned her hand on hot corn; (4) the bruises on M.F.'s lips became darker that day, and defendant and M.F. said it was from a burn; but the prior day, M.F. said she bit her lip because defendant was mad; and (5) last week, the staff noticed she was moving slowly, taking a long time to stand up, and acted like she was sore.

June 3, 2014 - Social Worker's Visit to Defendant

On June 3, 2014, Ms. Rutherford received Ms. McCully's referral. At the time of this referral, two prior referrals on M.F. had been "evaluated out" and not investigated, two prior referrals were determined to be unfounded, two were substantiated, and none were deemed inconclusive.

On June 3, 2014, Raye Hoevertsz, a social worker, went to defendant's house on the referral of alleged neglect or abuse. No one was home. While she waited at the house; defendant arrived with M.F. and said she was locked out of the house. The social worker interviewed M.F. by herself in her vehicle.

M.F. was visibly upset, crying, and scared, and did not want to talk to Ms. Hoevertsz. M.F. said she had talked to a lot of social workers, and she did not want to be taken away from her family or her mother. M.F. had a bandage on her left hand and a visible mark on the corner of her right lower lip. Ms. Hoevertsz asked what happened. M.F. said she was helping her mom cook dinner, burned her hand when she took a piece of corn out of the pot, and burned her lip when she took a bite.

Ms. Hoevertsz separately interviewed defendant. Defendant said she used timeouts and loss of privileges as discipline. Defendant was frustrated the school and the teacher were finding reasons to say she was a bad parent. Defendant denied any drug or alcohol use. Defendant said the family belonged to Kaiser, and she took M.F. there for treatment of a burn from boiling corn. Defendant said M.F. had a mental health appointment at Kaiser on June 6, 2014.

Shortly after this visit, defendant called Ms. Hoevertsz and said she was rescheduling M.F.'s mental health appointment because she was getting an award at school. Ms. Hoevertsz did not follow up with Kaiser to confirm the rescheduled appointment, and did not know there was an existing safety plan for M.F. and C.F.

On July 23, 2014, Ms. Hoevertsz closed the case and deemed the referral was" 'unfounded.' "

June 13, 2014 - Defendant Takes M.F. to Kaiser

On or about June 13, 2014, defendant took M.F. to Kaiser for a follow-up appointment for the right-hand burn. Defendant reported M.F. had intermittent pain and was slowly improving. The burn was healing, and the physician only examined M.F.'s hand and did not conduct a complete physical examination.

June 2014 - Last Day of School

Ms. Smith testified that on the last day of school in June 2014, the special education class had a party, but M.F. was sad. M.F. said that defendant told her she was not going to return to Webster Elementary.

Ms. Flores was in the classroom with M.F. when defendant arrived to pick her up on the last day of school. Defendant said:" 'Are you saying your good-byes, because you're not going to see her again.'" Ms. Flores testified that when defendant made this statement, she "wasn't kind. She was rude." That was the last time Ms. Flores saw M.F.

M.F.'s time at Webster Elementary ended in June 2014.

August 2014 - Defendant withdraws M.F. from Webster Elementary

Ms. McCully testified that a couple of days before the start of the 2014-2015 school term, she saw defendant with M.F. and her biological children as they visited the classrooms along with other families. M.F. was wearing a baseball cap and possibly long sleeves and jeans. She was hunched over, stayed close to defendant, and appeared to be hiding.

Ms. Shepherd testified that when the school term started on August 21, 2014, she learned M.F. was not going to return to Webster Elementary for her sixth grade year. Ms. Flores believed defendant was going to homeschool M.F., who was now 12 years old.

C.F. testified that as of August 2014, M.F. no longer attended public school, and defendant was homeschooling her. However, C.F. never saw M.F. engaged in any sort of homeschool assignments.⁵⁸

58 The prosecution introduced a printout that showed M.F. was enrolled in a homeschool program and logged onto classes from September 29 to October 8, 2014.

August 27, 2014 - Alleged Car Accident

On the afternoon of August 27, 2014, defendant took M.F. to the urgent care department at Kaiser and reported M.F. had been in a car accident. M.F. walked without any problems and did not limp or have any broken bones, and said she was not in any pain. M.F. was given Aleve, and defendant was advised to return if M.F. got worse.⁵⁹

59 During the very brief investigation that occurred for a few weeks immediately after M.F. died in October 2014, and the longer investigation that finally began nearly six months later in March 2015, defendant gave numerous statements to investigators about M.F.'s physical condition, but she never said M.F. was ever in a car accident.

PART IX

THE DEATH OF M.F.

On October 10, 2014, the paramedics responded to the home of defendant and Gerardo and found M.F. was unresponsive. The 12-year-old girl was taken by ambulance to VCH and pronounced dead shortly after she arrived at the hospital.

The prosecution introduced eyewitness evidence from C.F. and L.F. about what happened in defendant's house in the hours before M.F. died. Gerardo, defendant's husband, was also called by the prosecution and testified to a different version about what happened that day.

C.F.'s Trial Testimony

C.F. was 13 years old, and in the seventh grade in middle school when M.F. died. As noted above, M.F. no longer attended public school, and defendant was allegedly homeschooling her since the beginning of the 2014-2015 school term.

On October 10, 2014, C.F. got home from school around 3:15 p.m., and M.F. was cleaning the house. No one else was home. M.F. told C.F. that if they cleaned the house well, they would no longer be grounded. C.F. cleaned the kitchen and M.F. cleaned the living room. C.F. never saw M.F. hurt herself on the day of her death.

C.F. testified defendant and Gerardo eventually arrived home with their three biological children, J.F., L.F., and A.F., and A.F.'s. young friend, E. Gerardo went into the master bedroom and closed the door. A.F. and his friend played video games. C.F. was not sure where the other children were. M.F was happy when the family arrived home and did not appear sleepy.

C.F. testified that he was in the living room and heard defendant yell at M.F. that she had white powder on her mouth. Defendant ordered the girl to come to her (M.F.'s) bedroom. C.F. testified that defendant was yelling at M.F., accused her of eating doughnuts, and demanded to know where she got the doughnuts. M.F. repeatedly said that she never ate any doughnuts.

Defendant called C.F. into M.F.'s bedroom. C.F. obeyed and saw M.F. lying on the floor, face-up and on her back. M.F.'s arms were at her sides, and she was crying. Defendant was sitting on top of M.F. and straddling her stomach with her legs. C.F. had seen defendant sit on top of M.F. like this before.

Defendant was visibly angry. She yelled at both C.F. and M.F. and demanded C.F. reveal where M.F. got the doughnuts. C.F. did not reply.

Defendant ordered C.F. to lie on the floor next to M.F. C.F. obeyed defendant and laid on the floor on M.F.'s right side. Defendant was still straddling M.F.'s body. She started to hit C.F. with a metal rod that was from a broken clothing rack in M.F.'s bedroom. C.F. raised his left arm to shield himself, and defendant hit his elbow with the metal rod. His arm felt hot and swollen, and the metal rod left red marks on his skin. Defendant told C.F. to lower his arm and he obeyed. Defendant repeatedly hit C.F. with the metal rod and could not remember how many times or where defendant hit him.

As defendant beat C.F. with the metal rod, C.F. noticed that M.F. was lying quietly next to him and not saying anything. C.F. thought M.F. was falling asleep because her eyes were closing, and she was very quiet.

Defendant noticed M.F.'s reaction and slapped her face to wake her up. Defendant also hit M.F. in the chest and stomach, and M.F. started screaming that it hurt.

Defendant got off M.F.'s body and told her that she was going to have to run outside if she did not wake up. M.F. said she was "trying her hardest to wake up." Defendant put M.F. on top of the bed and kept trying to wake her up. C.F. testified that M.F. looked tired and could not keep her eyes open. Defendant yelled at M.F. to "stop being a drama queen."

C.F. believed M.F. passed out. Defendant announced that M.F had urinated on herself and said she was going to take M.F. into the bathroom. M.F. could not walk, and defendant had difficulty moving her. Defendant took M.F. into the hall bathroom and closed the door.⁶⁰

60 The defense recalled C.F. as a witness and asked him what happened that night. C.F. testified that he did not harm M.F., and again stated that he heard defendant yelling and screaming at M.F. before he went into her bedroom. When he went into the bedroom, he saw defendant sitting on top of M.F., and she punched M.F. in the chest and stomach. C.F. saw defendant shake M.F. and call her a "drama queen." C.F. testified that M.F. said that she urinated on herself and was sleepy, and this happened about 20 minutes after defendant and the family had returned home. C.F. saw defendant take M.F. into the bathroom to wake her up, and defendant shook her and again called her a "drama queen." C.F. saw Gerardo carry M.F. out of the bathroom, and M.F. was limp and wearing only her underwear.

C.F. went back to the living room and resumed cleaning the house. C.F. did not know if anyone else in the family saw how M.F. looked. He was worried because he had never seen M.F. in this condition. He heard the water being turned on in the bathroom.

Defendant walked out of the bathroom and closed the door. Defendant returned to the bathroom 10 minutes later, screamed at M.F. to wake up, and said M.F. "got in the shower with all her clothes on." Defendant called out to Gerardo and told him to pull M.F. out of the shower and that M.F. was not responding.

C.F. saw Gerardo walk into the bathroom and carry M.F. into her bedroom. M.F. was unconscious, her eyes were closed, and her body was limp. Defendant also went into M.F.'s bedroom and ordered the children to go into the master bedroom until someone arrived. The children obeyed, and C.F. helped the younger ones into the master bedroom and closed the door.

Defendant's sister eventually arrived and took C.F. and the other children to the home of defendant's parents. C.F. walked straight out of the house and did not look in M.F.'s bedroom.

C.F. testified that it was nighttime when they left. The children stayed at the home of defendant's parents for a couple of hours.

Defendant later arrived at her parents' home and told C.F. that M.F. "didn't make it." C.F. was devastated and went outside and cried. Defendant and Gerardo took the children back to their home. C.F. went to bed and was afraid that he "was next" because his sister was dead.

L.F.'s Testimony

L.F., the biological daughter of defendant and Gerardo, testified that she was in the fifth grade when M.F. died. On that day, defendant and her mother picked up L.F. and her biological siblings from school. Defendant took her biological children to dinner at a restaurant; M.F. and C.F. were not with them.

Defendant and her biological children returned home after dinner, along with A.F.'s friend, E. L.F. testified that M.F., C.F., and Gerardo were home when defendant and the children arrived. L.F. went into the living room and played. Gerardo and the other children were in the living room, and the television was on.

L.F. testified that defendant "found out that [M.F.] got into some food without asking. So … [M.F.] got in trouble for it." Defendant was in M.F.'s bedroom with the girl, and L.F. heard M.F. "screaming from her room," saying," 'No. Stop.' "

L.F. testified that she did not think anything was unusual about M.F. screaming because in "the house that I was living in, that was just kind of normal, if someone was, like yelling, like they were being hurt." L.F. heard M.F. scream like that on prior occasions, it happened often, and it was not a rare occurrence.

On that particular night, however, L.F. went into the hallway and stood in the doorway of M.F.'s bedroom. L.F. testified that M.F. was lying on the floor, face down, defendant was standing above M.F., and she was "punishing" the girl with a belt.

"I saw [M.F.] on her stomach on the floor. And, then, [defendant] had one foot on [M.F.'s] back and, then, she was holding a belt in her other hand- in one of her hands."

Defendant used the belt and was "whacking [M.F.] with it on her back and on the back of her neck." M.F.'s face was in the carpet, and M.F. was yelling and crying," 'Stop. Please stop.'" L.F. testified that defendant hit M.F. with the belt multiple times. L.F. stayed quiet in the doorway and watched for seven to 10 minutes; defendant was not looking in her direction. As L.F. watched, defendant continued to strike M.F. with the belt and never stopped. L.F. finally returned to the living room with the rest of the family, including Gerardo. She could not remember if C.F. was in the living room, and she did not see C.F. go into M.F.'s bedroom.

L.F. testified that Gerardo eventually got up, walked to the hallway, and told defendant," 'Amy, you need to stop this. Stop this now.'" Gerardo did not yell when he spoke to defendant, and he used an "in-between" voice, "like he wasn't trying to yell at [defendant]." L.F. did not notice if Gerardo went into M.F.'s bedroom.

L.F. stayed in the living room and kept playing on her tablet because she felt there was nothing she could do, since "that kind of behavior was just normal in our household. So, I was just kind of waiting for it to pass away."

About five minutes after L.F. returned to the living room, she heard the water go on in the shower.⁶¹

61 L.F.'s account strongly implies that she looked into M.F.'s bedroom and saw defendant beating M.F. before defendant ordered C.F. into the room, since C.F. testified that he remained in the bedroom until defendant dragged M.F. into the bathroom.

L.F. remembered the police came to the house that night, and she was later told that M.F. died in the ambulance on the way to the hospital.

A.F.'s Testimony

A.F., the biological son of defendant and Gerardo, also testified about the night that M.F. died. The entire family was home, including Gerardo, and A.F. had a friend there. A.F. and the children were watching television in the living room.

A.F. testified that M.F. walked into the bathroom to take a shower, and he heard the water being turned on. A.F. did not see C.F. and L.F. go to M.F.'s bedroom or the bathroom, and they stayed in the living room. A.F. testified that defendant went into the bathroom, and then the children were told to go outside the house. A.F. remembered an ambulance was called, and they were taken to their grandmother's house.

M.M.'s Testimony

M.M., defendant's adoptive sister, testified that on the night that M.F. died, M.M. was home with her adoptive parents (defendant's parents). Defendant called, she was crying, and said M.F. was dying.

Defendant's parents and M.M. went to defendant's house, and the police and paramedics were already there. M.M. went inside and headed to M.F.'s bedroom. Gerardo stopped M.M. before she got to M.F.'s bedroom and told her to get out. M.M. did not look inside M.F.'s bedroom but believed M.F. was lying inside and CPR was being administered to her. C.F. and the other children were already outside. Defendant's parents and M.M. left with the children, and the ambulance was still at defendant's house.

M.M. testified that defendant's children stayed at her adoptive parents' house that night. Defendant returned from the hospital the next day and said M.F. died. C.F. burst into tears.

Gerardo's Trial Testimony

Gerardo, defendant's husband, was never charged in this case and was called as a prosecution witness. His testimony was limited to what happened in the hours leading to M.F.'s death. (Gerardo was later recalled as a defense witness and testified about additional matters.)

Gerardo testified that on the day of M.F.'s death, he arrived home from Stockton, where he was working as a sheriff's deputy, sometime after 2:00 p.m. Defendant, the children, and A.F.'s young friend were there. Gerardo testified that it was his payday, and he took everyone to Walmart and bought gifts for them, and then the family went to Sal's Mexican Restaurant for dinner.

Gerardo admitted, however, that M.F. and C.F. did not go with them to Walmart or the restaurant. He testified that M.F. and C.F. stayed home with J.F., who was 17 years old. The three children were playing video games and watching television when the family left.

While the family was at dinner, J.F. contacted defendant and said he was going to leave the house. Gerardo testified that the family returned to the house around 4:00 p.m. or 4:30 p.m.

Gerardo testified that when they got home, M.F. and C.F. "were in the kitchen cleaning" and "doing their chores." C.F. washed the dishes and M.F. was mopping the tile floor. Gerardo had ordered take-out food for M.F. and C.F., and he "left the to-go boxes on the kitchen counter."

Gerardo had a migraine headache, went into the master bedroom, closed the door, and laid face-down on the bed to rest.

Gerardo initially testified that about 15 minutes after he laid down, the children were loud, and the dog was barking; he tried to ignore it and stayed in bed. Gerardo testified that he was still in the master bedroom with the door closed, and heard defendant call M.F. and C.F. into M.F.'s bedroom. He also heard defendant "scolding" C.F. and M.F. about stealing food.

As his testimony continued, Gerardo clarified that he heard defendant call M.F. and C.F. into M.F.'s bedroom "about the same time that I went … to the master bedroom to lay down." Gerardo testified that when he first walked down the hallway to the master bedroom, defendant was in "the girls' room" to make sure "they had done their chores." Gerardo went into the master bedroom, closed the door, laid down, and almost "immediately" heard defendant "scold" the two children that they did not need to steal food.

Gerardo heard defendant use "a loud tone of voice" to ask M.F. and C.F. to come into M.F.'s bedroom "and explain why there was still trash." Gerardo heard C.F. crying "because M.F. was being scolded."

Gerardo testified that "as I laid facedown, I heard [M.F.] say 'Oops, I peed.'" Gerardo thought M.F. was crying. Gerardo testified that "[a]s soon as I heard [M.F. say] that, I got up and went to the living room," but testified that he checked on the dog and not M.F.

"I went to the living room because … the English bulldog puppy had just … been spayed. Her sutures were still - I guess you can call them freshly - I don't know if the correct word is 'sewn,' but they were - she had just finished having the procedure, and they had told us not to allow her to do any physical strenuous activity, because then the sutures would rupture, and I would have to take her back and have another procedure done. And I know that the kids were - like I said, they were getting her really aggressive - really, you know, riled up, and I went over there to go … calm the dog down and have the kids stop bothering her."

Gerardo testified that he walked down the hallway, went by M.F.'s bedroom, and the door was closed. He heard defendant say through the door:" 'You're not … going to get away with it this time.'" He also heard defendant say," '[Y]ou're always doing this so you don't … get in further trouble.'" Gerardo testified that M.F. "always wet herself" so she would not get "further scolded."

Gerardo testified that he went into the living room, told the children to stop agitating the dog, and they went to the playroom. Gerardo sat on the couch and calmed down the dog.

As he sat on the couch, Gerardo saw M.F. walk out of her bedroom, defendant was behind her, and they headed to the hallway bathroom. M.F. was crying, and defendant said she was going to make M.F. take a shower. M.F. was standing in the doorway of the bathroom, and defendant said she was not acting like a young lady. C.F. left M.F.'s bedroom and went to the playroom.

Gerardo saw defendant and M.F. walk into the bathroom, M.F. walked under her own power, and she did not need help. He heard someone turn on the water. The bathroom was very small and had a shower/tub combination with a curtain. Defendant told M.F. to undress, take a shower, and go to bed because she was grounded.

Defendant walked out of the bathroom and went toward the laundry room. Defendant returned to the bathroom and was holding clean clothes for M.F.

Gerardo believed it took defendant one minute to leave and return to the bathroom. While defendant was out of the bathroom, Gerardo only heard the sound of water from the shower head.

Within five to 10 seconds after defendant went back into the bathroom, she called Gerardo and said," 'Babe, come here. [M.F.'s] not listening to me.'" Gerardo was still on the couch and yelled," '[M.F.], listen to your mom.'" He went into the bathroom and saw M.F. "seated in the tub."

M.F. was sitting in the middle of the tub, her arms were to her side, and her eyes were open. The drain was open, and the water was turned off. "[M.F.] was sitting in an upright position, just like a normal person, like we all are right now, seated upright, and her head is … tilted backward. Her mouth is open…."

Gerardo testified that based on his experience as a deputy, he knew something was wrong from the look on M.F.'s face. He checked for a carotid pulse on her neck and there was nothing. Gerardo shook M.F.'s shoulder, called her name, and asked if she was okay; she did not respond. Gerardo continued to check for a pulse and kept shaking M.F.'s shoulder but did not get a response. Defendant stood in the bathroom's doorway and did not say anything.

Gerardo heard a gurgling sound from M.F.'s stomach, lifted her out of the tub, and she did not respond. He told defendant to take the children to her mother's house and call 911.

Gerardo stood in the bathroom with M.F. in his arms, "and I waited for [defendant] and the kids to run out of the house." "Once I knew that they all left the house, I went to the girls' room and laid [M.F.] in supine position on her bed," and she was lying face-up and on her back.

Gerardo again checked for a carotid pulse, put his head to her chest, and there was nothing. Gerardo started CPR while M.F. was lying on her back on the bed.

Gerardo continued to apply CPR, and defendant and her sister, Cindy, arrived. About 30 minutes after he started CPR, the firefighters arrived and took over. M.F. was placed in an ambulance, taken to VCH, and died there.

PART X

DEFENDANT'S STATEMENTS IMMEDIATELY AFTER M.F.'s DEATH

The prosecution introduced evidence about defendant's numerous statements she made about M.F.'s death, many of which were inconsistent.

Defendant's Statements to the Social Worker

Amy Hardcastle was a social worker at VCH who provided emotional support services to bereaved parents when their children die in the hospital. Ms. Hardcastle met with defendant on the night of October 10, 2014, after M.F. was received at the hospital. The child was unresponsive, and Ms. Hardcastle tried to get information to assist the medical staff. M.F. died before she was admitted to the hospital.

Ms. Hardcastle spoke with defendant at the hospital shortly after M.F. died. Ms. Hardcastle described defendant as "almost hysterical" and "very upset," but she did not cry. Gerardo was very calm and did not give a separate statement.

Ms. Hardcastle asked defendant what happened to M.F. Defendant said M.F. was acting uncharacteristically "clingy" and was crying that day. Defendant said M.F. ate white-powdered doughnuts without permission and gagged herself. Defendant said M.F. often gagged herself when she was in trouble. M.F. then vomited "green stuff." Defendant asked M.F. what else she had eaten, and M.F. said that she had peas. Defendant did not believe her. M.F. said that she had urinated on herself, and defendant told M.F. to go into the bathroom and shower. M.F. was acting sleepy, and defendant thought she was being "a drama queen." Defendant said she put M.F. in the shower and left the bathroom.

Defendant said she returned to the bathroom five minutes later, and found M.F. lying in the shower and turned off the water. Defendant said she attempted to get M.F. out of the shower, tried to wake her up, and again thought she was being "a drama queen" and "faking it" because M.F. was moving her mouth. Defendant called Gerardo, who picked up M.F. and noticed her body was limp. Gerardo told her to call 911. He started CPR and did not feel a pulse. Defendant said this happened at 7:02 p.m.

Defendant said M.F. had been in foster care and was adopted, and she had a history of abuse and neglect prior to foster care. Defendant said M.F." 'was born drug and alcohol exposed, as well as her siblings. [M.F.] will hoard food in her bedroom and will eat food out of the trash due to her history of neglect and abuse. [Defendant] stated that [M.F.'s] self-harming behavior are well documented with her past social workers.'" Defendant said M.F.'s self-harming behavior included" 'head banging on the wall, scratching, and cutting her arms and legs, and hitting herself hard on the … stomach with the edge of the bed, '" and she had a "high tolerance" for pain.⁶² (Italics added.)

62 As set forth above, the evidence showed M.F. was born at full term, she was a healthy baby, she did not have fetal alcohol syndrome, and M.F.'s adoptive siblings and the school staff at Webster Elementary testified that they never saw M.F. engage in any self-harming behavior.

Ms. Hardcastle testified that after she talked with defendant, she did not understand what happened to M.F., and it struck her as "odd" that defendant was "very hysterical" but did not cry. The entire situation raised concerns because M.F. arrived unresponsive and died. The protocol was to call law enforcement or the department "if we don't know what caused the injuries or the death," and Ms. Hardcastle made the call: "I just remember leaving that evening and everybody being kind of baffled and emotional because … at that point I don't know if we knew exactly why she had died, but that was kind of the feeling that I remember was just of being baffled … and emotional."

Defendant's Statements to Deputy Kirchert

Deputy Kirchert arrived at VCH's emergency room on the night of October 10, 2014. M.F. had already died, and Ms. Hardcastle gave him a brief summary about the situation.⁶³

63 Deputy Kirchert had responded to defendant's home on February 26, 2014, in response to the school's report about the large abdominal bruise wrapped around M.F.'s right side. As recounted in part VIII, ante, M.F. told Kirchert that she hit her side on "the post of the bed." Kirchert observed wooden posts at the four corners of the bedframe in M.F.'s bedroom, and no further action was taken.

Deputy Kirchert met with both defendant and Gerardo; only defendant gave a statement. Defendant appeared upset, and that seemed normal because her child had just died.

Defendant said M.F. "was born testing positive for drugs, had fetal alcohol syndrome, speech impediment, a learning disability, and she had been known to hurt herself or cut herself against objects."

In response to Deputy Kirchert's questions, defendant provided the following account of the events leading up to M.F.'s death. M.F. acted normal that day other than being "clingy." M.F. had white powder on her mouth from powdered doughnuts. When defendant asked about the doughnuts, M.F. became upset and threw up green vomit, and said it was peas. Defendant said M.F. previously made herself gag or throw up if she believed defendant was upset. Defendant said M.F. said she urinated on herself. Around 6:55 p.m., defendant started the shower and M.F. got in.

Defendant said she "checked on [M.F.] at one point, she said she was okay. [Defendant] said about 7:02 she came back and [M.F.] was laying on the floor of the shower." Defendant said that "she could see [M.F.'s] mouth, lips moving like she's breathing so she believed - she was telling [M.F.] to get up. [M.F.] wasn't getting up. [Defendant] believed [M.F.] just wasn't listening to her."

Defendant said she tried to pick up M.F. but "realized she was kind of limp and she wasn't responding, so she called her husband over to come help."

Defendant's Statements to the School Staff

At 12:49 p.m. on Saturday, October 11, 2014, the day after M.F. died, defendant called Ms. McCully, M.F.'s former teacher. In a quiet tone, defendant told Ms. McCully that M.F. passed away the previous night. She was not crying and did not sound upset. Ms. McCully expressed sympathies, offered to help, and asked what happened. Ms. McCully made notes about what defendant said.

" '[Defendant] said that Friday, [M.F.] had one of those days where she was emotional and just wanted to snuggle on the couch. She said they had spent the day at her mother's house … and that she was now doing her schooling online. That evening back home … she had a urine accident, and [defendant] asked her to take a shower. She went with her to the bathroom and turned on the water, then closed the door to give her privacy. Next, [defendant] explained, she went to get her some clothes, and when she brought them back to the bathroom, she saw [M.F.] laying in the tub with shower going and the shampoo knocked over. She called for - for her husband to come carry her to bed, but when they went in, they realized right away that something was not right. He started CPR, and she called 911. Fire department came and did - did get a pulse, but she never started breathing again.'" (Italics added.)

On October 12, 2014, two days after M.F.'s death, Ms. Shepherd learned M.F. died. She sent a text message to defendant extending her condolences and offering support. Defendant responded in a text message that M.F. had collapsed in the shower and was found unconscious, they performed CPR, paramedics were called, she was taken to VCH, and they were unable to revive her.

M.F. died on Friday, October 10, 2014. Defendant went to C.F.'s middle school on the following Monday or Tuesday, October 13 or 14, and met with the school clerk, Ms. Rosa, who previously worked at Webster Elementary. Defendant filled out paperwork for C.F. to do independent study because he was not going to return to school for a while. Ms. Rosa testified that defendant was solemn when they spoke, and Ms. Rosa gave condolences on M.F.'s death. Defendant volunteered that M.F. died from "a genetic heart disorder."

Defendant Prohibits Special Education Staff from Attending Funeral

After M.F. died, someone at Webster Elementary informed Ms. Flores, the class aide, that the special education staff was not allowed to attend M.F.'s funeral service. Ms. Flores "thought that was odd because she'd been at our school for so long and so many of us had gotten so close to her. And I thought that [defendant] was mean because of the last day of school, what she told me, the tone she had in her voice and the look she had in her eyes."

Defendant's Statement to the Coroner

On October 13, 2014, three days after M.F. died, Stephanie Clark, the deputy coroner of the Madera County Sheriff's Office, spoke with defendant on the telephone and asked what happened on the night of M.F.'s death. At trial, Ms. Clark testified from her report about defendant's statement:

" '[Defendant] and her husband … were out getting dinner when she was called by her 17-year-old son [J.F.], who told her he had to leave the residence. [Defendant] advised they did not like to leave their daughter unattended, and only their 13-year-old son [C.F.] was going to be home with [M.F.], so they came home.

" 'Once they came home, [defendant] noticed a white powdery substance around her daughter's mouth. She asked her daughter … what had she been eating, and [M.F.] refused to tell her what she had eaten. She advised her daughter has problems hoarding food and would then eat the food all at once and then would vomit it all at once. She would also eat non-food items, including garbage, and had to watch everything she ate.

" '[Defendant] kept asking her daughter what she had eaten, and [M.F.] said she felt like throwing up. [Defendant] advised that [M.F.] … also will vomit, urinate, or defecate on herself if she feels she is getting in trouble. [Defendant] thought her daughter may have eaten the white powdered donuts that she had purchased the day before, but when [M.F.] vomited, she threw up the bright green, yogurt-consistency, substance.

" '[Defendant] again asked her daughter what she had eaten, and she said she had opened a can of peas andhad eaten them. [Defendant] thought this was strange because she didn't even think she had any peas in the residence.

" '[M.F.] walked down the hallway into her bedroom, and … [defendant] and her son followed [M.F.] into her bedroom.⁶⁴ [Defendant] continued to ask her daughter what she had eaten, and [M.F.] said her brother had taken the donuts, not her, which her brother denied. [M.F.] started having one of her tantrums that she started to have within the last two months. This consists of hurting herself by banging her head on objects, hitting things, and throwing things.

64 Defendant admitted in this statement for the first time that C.F. was in the bedroom with defendant and M.F.

" '[M.F.] thrashed around her room, throwing herself on the furniture in her bedroom. [Defendant] had to grab her by the shoulders and hold her to prevent her from hurting herself. [M.F.] then told [defendant] that she had urinated on herself. [Defendant] told her she's going to have to take a bath and took her to the bathroom, where she started to shower -started the shower for her. She closed the door behind her and left [M.F.] in the bathroom.

" '[Defendant] advised approximately five to ten minutes later, she went to collect her daughter's clothes on the bathroom door [sic], but when she opened the door, her clothes weren't on the floor, and the shower curtain was closed. [Defendant] opened the shower curtain and found her daughter kneeling down in the bathtub. She was fully alert and looked at [defendant], who asked her daughter what she was doing. She said this was not abnormal behavior for [M.F.] and asked her daughter to lift up her arms and legs so she could help her undress. [M.F.] lifted her arms so her mother could help her out of her wet clothes. [Defendant] removed her daughter's pants and then her shirt. [M.F.] then laid down in the bathtub and would not respond to [defendant]. [Defendant] realized at that time that her daughter was not going to take a shower and turned the water off.

" '[Gerardo] walked into the bathroom, and [defendant] asked her husband to remove [M.F.] from the bathtub. [Gerardo] then told [M.F.] that she needed to get out of the shower herself or [he] was going to pick her up and carry her out of the bathroom. At that moment [defendant] and her husband realized something wasn 't right with their daughter, and [defendant] lifted her daughter's head with her hands and noticed she was unresponsive. [Defendant] blew into her daughter's mouth, and [M.F.] exhaled. Her husband ... lifted his daughter out of the bathtub and placed her on the floor and began CPR while she called 911."⁶⁵ (Italics added.)

65 Defendant's account is inconsistent with Gerardo's trial testimony: he claimed defendant called him into the bathroom, M.F. was seated upright and her head was back, she was nonresponsive, he lifted her out of the bathtub, he told defendant to take the children to her mother's house and call 911, carried M.F. into her bedroom, placed her on the bed, and started CPR. Gerardo never testified that M.F. was alert when he entered the bathroom, that defendant started CPR while M.F. was still in the bathtub, or that he placed M.F. on the bathroom floor and performed CPR.

At the end of the interview, Ms. Clark asked defendant how M.F. was feeling that day. Defendant said M.F. "was acting fine other than being very clingy and babyish and was teary eyed. She said that was not normal for [M.F.], that she normally would not show any emotion and did not hug or show very much physical attachment. She also had a history of self mutilation by cutting herself." (Italics added.)

Defendant's Second Statement to Ms. Clark

Ms. Clark testified that shortly after the telephone interview, she went to defendant's residence with Sergeant Matt Mullin. The house's interior was "very unkempt." Ms. Clark again asked defendant about what happened to M.F. Defendant gave the same account that she made on the telephone to Ms. Clark.

Defendant showed them the bathroom and M.F.'s bedroom. M.F.'s bedroom was messy with clothes and toys, and there was a television in the middle of the room that was not damaged. Ms. Clark testified that "[t]here was a bed with square wooden bed posts located next to the east wall of her bedroom. [Defendant] advised that they had to adjust the bed so there was no space under the bed due to [M.F.'s] attempting to put her legs under the bed and hurting herself by kicking her feet." Defendant further stated that on the night of her death, "[M.F.] threw herself on the bed and also hit herself on the television."

PART XI

THE AUTOPSY

On October 14, 2014, Dr. Mark Super, a forensic pathologist, performed the autopsy on M.F.

M.F. was four feet seven inches tall and weighed 75 pounds. In Dr. Super's opinion, M.F. was of normal size, within the range of children her age, and appeared to be adequately nourished. She did not have any broken bones.

External Injuries

Dr. Super testified that there were numerous external injuries on M.F.'s body. There was an old crescent-shaped scar on the back of M.F.'s head, that was left of the midline.

M.F. had another scar on her mid-forehead just inside the hairline; it was one-third of an inch long, and months to years old. There was a contusion in this same area that was 2.5 centimeters long.

There was a light-colored, healed scar on M.F.'s lower lip that was 0.6 centimeters long.

There were little pinpoint hemorrhages, called "petechiae," on the inner surface of M.F.'s upper lip, and none on her lower lip. These hemorrhages occur when "the blood in the lip was unable to get out" and return to the heart. "For some reason, there was some kind of an obstruction for flow enough so these little vessels in the delicate part of the lip blow. It's nonspecific. We see that sometimes when people are asphyxiated." "If your neck is compressed just enough so that you impede flow from your face back to your heart, then everything backs up. [T]he blood vessels can sometimes … get so engorged they'll pop, if they're fragile."

Dr. Super testified that petechiae may also occur if someone is lying face-down and "bloods starts to engorge in your face, and then, for some reason, your lips are all compressed, you could blow blood vessels from that."

Dr. Super did not find any visible injuries on M.F.'s neck that could have caused the petechiae, but that was not unusual because "a neck can be compressed by something soft or broad and actually even result in someone's death by asphyxia and leave no marks."

There were "numerous scars" on M.F.'s abdomen, that were various shapes but mostly oval. Most of the scars were on her left side above her belly button, and some were on the right side. These scars measured from 0.2 to 0.8 centimeters in size.

At the bottom of M.F.'s sternum (breastbone), there was a tiny "cluster" of scars that were "faint, short, vertical, [and] remote," in an area that was 3x3 centimeters. Each scar ranged in length from 0.3 to 0.7 centimeters.

There was a longer scar on the upper left side of M.F.'s abdomen that was "somewhat squiggly," and did not appear to be from a surgical procedure. It was surrounded by more oval shaped scars. There was another small scar below and to the side of her left nipple.

M.F.'s fingernails were very short and appeared chewed.

On the back of M.F.'s left shoulder, there was a "hypertrophic scar" that was "really prominent, it's actually raised." It was 1.7 centimeters long and appeared months to years old. There was a bruise on her right biceps area.

On M.F.'s left forearm, just below her elbow, there was a faint, red-brown contusion that was oval shaped and one centimeter long. There was a faint bruise on the dorsal (back) side of her forearm near her wrist and another bruise about two inches above her wrist. These bruises were newer and red-purple in color.

On the back of her right elbow, above the joint, M.F. had a bruise and a faint abrasion. It was three to four centimeters long and appeared very recent based on its color.

There were more oval shaped scars on M.F.'s lower back, similar to those on her abdomen.

There was an abrasion on the back of M.F.'s neck that was a "new scratch" and "a recent break in the surface of the skin" because there was no evidence of healing. The abrasion was one centimeter long, and it may have occurred minutes to hours before her death. It was not a linear scratch and appeared to have been caused by an object, or by clothing if the cloth was compressed against her skin.

There were two contusions on M.F.'s lower right leg that appeared to be new. One bruise was faint, and two to three inches below the bottom of the kneecap. The second bruise was darker, and four to five inches below the bottom of the kneecap. One contusion was 1.5 centimeters long, and the other was 0.1 centimeters long.

On the top of M.F.'s right thigh, facing outward, there were two "dimple[d]" scars next to each other that had little pinpoint dips. They were between 0.4 and 0.7 centimeters in size. There were other scars of similar size and appearance that were less than an inch apart.

There were contusions on M.F.'s lower left thigh, towards the inside surface. One bruise was a "mottled red-purple color" with "a faint yellow-green color," and appeared to be healing. There were more oval shaped scars scattered on her left thigh.

There was a scar that was lower on M.F.'s left thigh, that was "very faint, remote, but appeared to be letters, as if someone drawn letters, but "they weren't distinct enough to say for sure they were letters." Another scar on her left thigh was less than a centimeter in size. There were more oval shaped scars on her left lower leg, and a red-purple bruise between her knee and ankle. There was a red-purple contusion on the outside of her right leg, about four inches below her kneecap.

There were four red-purple bruises on her M.F.'s thigh that were new. There was a group of three, oval, red-purple bruises on her lower left calf that were "very recent," and were between 1.0 and 1.5 centimeters long.

Dr. Super testified the raised oval scars on M.F.'s abdomen and back were possibly consistent with burn-type injuries. The height of the scars was the result of her body's reaction to create more fibrous tissue cells while healing, and that caused "the repair process to be kind of exuberant."

Internal Injuries

Dr. Super next testified about M.F.'s internal injuries, beginning with numerous bruises under M.F.'s scalp that would have resulted from impact to the outside of her scalp that caused bleeding into the subscapular area.

On the front right side of M.F.'s scalp, towards the top of her head, there was a semi-oval bruise that was 7.5 centimeters, and it had been inflicted between several hours to a few days before death.

There was another contusion over M.F.'s right temporal area, under the scalp, that was 2.5 centimeters long; it appeared to be newer than the bruise on the front right side. Dr. Super testified that it was possible this contusion was consistent with a punch or kick to the head.

There was a "big" purplish bruise over the M.F.'s right occipital skull (back of the head), that was 8.0 centimeters long. This bruise was deeper into the scalp and skull, and the depth of the contusion was related to the amount of force that caused it. Dr. Super testified that it was possible this bruise was consistent with M.F.'s head hitting the floor or wall.

There were a few, scattered, faint oval subscapular hemorrhages in various places in M.F.'s head, likely resulting from separate impacts of less intensity. These appeared recent and more superficial than the other bruises and resulted in less hemorrhaging. Dr. Super testified that these were possibly consistent with a fist striking M.F.'s head. It was possible, but unlikely, that these resulted from a person hitting her own head on a wall.

The Fatal Mesentery Bleeding

Dr. Super explained that blood from the heart to the intestines "comes down major vessels, and then it goes out through the mesentery, which is some soft tissue attached to the bowel. Then it goes out to that and spreads out to the bowel." The "major vessels" are called "the 'root of the mesentery,'" and there are also numerous "little vessels" in the same area.

Dr. Super found evidence of three tears where the intestines were attached to the back of the abdomen; the area was dark purple to indicate bleeding. The area surrounding the mesentery root was bloody. The big blood vessels were not torn, but the smaller "mesenteric vessels have been torn" from "impact" that resulted in internal bleeding.

"What happens is that an impact there … drives the soft tissue that's holding the small bowel against the spine. [¶] So, if you think of the spine not being in the back, but being more like a tent pole in the middle, if soft tissue gets driven against that, it crushes it. And then when the blow is let go, now you have tears. And you have tears and you have blood and you can get bleeding into this space. And that's a not-uncommon kind of abdominal bleeding."

Dr. Super testified that children have very thin muscles supporting their abdominal organs, "[s]o if you kick or punch somebody in the abdomen that doesn't have a six-pack abdomen, you can easily crush their tissue against the spine or injure it."⁶⁶

66 L.F. testified that M.F. was lying face-down on the floor, defendant was standing above M.F., and she was "punishing" M.F. with a belt. "I saw [M.F.] on her stomach on the floor. And, then, [defendant] had one foot on [M.F.'s] back and, then, she was holding a belt in her other hand - in one of her hands." Defendant used the belt and was "whacking [M.F.] with it on her back and on the back of her neck," and did so multiple times. C.F. testified that when defendant ordered him into M.F.'s bedroom, M.F. was lying on her back and face-up on the floor, her arms were at her sides, and defendant was sitting on top of the girl and straddling her stomach with her legs. Defendant ordered C.F. to lie on the floor next to M.F., and repeatedly hit him with the metal rod.

There were about 900 milliliters of "free" blood in M.F.'s abdominal cavity that were from the tears in the mesentery. The blood was "sludgy," indicating M.F. was alive during the internal bleeding. If pressure was not applied to stop the bleeding, it would have taken a period of minutes for that amount of blood to leak into the abdominal cavity.

Dr. Super testified the stomach empties into the duodenum, which turns behind the stomach, goes around the head of the pancreas, and leads into the small bowel, and pancreatic juices secrete into the duodenum. A microscopic examination of M.F.'s duodenum showed hemorrhages into the soft tissue. These were "in the neighborhood" of the tears in the mesentery that resulted in the fatal internal bleeding.

There was a small amount of a green-leafy substance in M.F.'s stomach.

In M.F.'s lungs, there was intense vascular congestion and edema. The vessels "were engorged and the air spaces were filled with fluid," which "implies that she probably died in slow heart stoppage." The smaller airways in her lungs showed chronic inflammation.

The lower lobe of M.F.'s right lung was bruised as the result of an outside impact. The ribs around her lower lobe were not broken. It was possible for an outside impact to bruise the lung without breaking the surrounding ribs.

Evidence of Prior Internal Injury

Dr. Super testified that, aside from the fatal mesentery bleeding, there was "evidence of old, ongoing scaring in [M.F.'s] mesentery." A microscopic examination of tissue from her mesentery showed evidence of "ongoing reaction and fibrosis, old bleeding" from a prior injury. These findings showed M.F. suffered "impacts to her abdomen in the past, [she] didn't die [from the prior injury] but [she] was injured and healed." The healing could have been going on for months but not years.

Dr. Super explained that the pancreas is in the abdomen, behind the stomach and laying over the spine. An impact to the abdomen may break blood vessels in the stomach and pancreas because they are in the same area. He determined there was no visible injury to M.F.'s pancreas, but a microscopic examination of pancreatic tissue showed "organizing fibrosis" and a prior injury that was "healing." The tissue that he examined was in the area of the "root of the mesentery injury."

The scar tissue that formed from the healing process of M.F.'s previous mesentery injuries would have been painful for a 12-year-old child because "[t]he fibrosis occurs with swelling, so this would be uncomfortable until it's healed."⁶⁷

67 The Webster Elementary staff testified about several incidents that were possibly consistent with the prior, nonfatal mesentery injury, when they observed a large abdominal scar around her right side in February 2014, and she was walking slowly and bent over in pain, between March and May 2014.

Cause of Death

Dr. Super testified that as the pathologist, he was asked to report on the cause of death, which was his "medical opinion as to why the person died, medically." In contrast, the coroner reports on the manner of death, which is the category that goes onto the death certificate, such as suicide, homicide, accident, natural causes, or unknown or undetermined causes.

Dr. Super testified that in his opinion, M.F.'s cause of death was "hemoperitoneum - which means blood in the abdomen - due to mesenteric vascular injury, due to blunt-impact abdominal injury," resulting from new injuries that caused the mesentery tears. "Accumulation of blood in the abdomen due to rupture [of] vessels in the mesentery due to impact of the abdomen."

M.F.'s heart stopped "because of the mesentery bleeding" and her lungs filled up with fluid. The injuries that resulted in this process may have been painful.

The performance of CPR and chest compressions would not have prevented M.F.'s death, and likely worsened the situation since blood was already in her abdomen. None of the injuries on M.F.'s body were consistent with being inflicted while CPR being administered to her.

Dr. Super did not detect any injuries that might have been inflicted by a belt and did not find a footprint on her body. However, that did not mean M.F. was not struck with a belt or foot since these marks may not have remained visible. The blow that resulted in the fatal mesentery tears would have been "significant," but "any kind of punch, kick, any kind of impact to the abdomen to someone like her, who doesn't have strong abdominal musculature, is going to get those tissues pushed up against her solid, bony spine and that causes stretch tears."

M.F. would have remained conscious and aware while her mesentery was bleeding internally, as long as she did not have other injuries. A person who was internally bleeding would go into shock, the brain would communicate to bodily organs to shut down, and fluid would collect in the lungs as they became less effective at exchanging oxygen.⁶⁸

68 C.F. testified that he was lying on the bedroom floor next to M.F., defendant was beating him with the metal pole, and she was still sitting on top of M.F.'s abdomen. C.F. noticed that M.F. was lying quietly next to him and not saying anything. C.F. thought M.F. was falling asleep because her eyes were closing, and she was very quiet.

Information Given to Dr. Super

Dr. Super testified that prior to conducting the autopsy, he was briefed by someone (he could not remember the source) that M.F. "had abdominal injuries because she was acting out and throwing herself against the edges of a couch or a chair or something," and she had an "impact injury to her abdomen. So, in that sense it was not totally unexplained." (Italics added.) Dr. Super could not recall if he was previously told that M.F. would throw herself on her bed or against the bed post.

Dr. Super testified it was possible M.F.'s mesentery injuries could have resulted from throwing herself onto a bedpost. It was also possible that a "good kick" from another teen or adolescent could have caused the internal tears.

Dr. Super did not have an opinion on how the external, oval shaped injuries were inflicted on M.F.'s body. It was possible the external abdominal scars resulted from M.F. scratching bug bites.

Dr. Super did not know the causes of M.F.'s external and internal injuries, or exactly when they occurred. When asked by defense counsel whether M.F. could have inflicted all her external injuries, Dr. Super replied: "She has some of these scars on the back."⁶⁹

69 In closing argument, defense counsel argued M.F.'s fatal and nonfatal injuries were inflicted by C.F., who was 13 years old when M.F. died, and also the result of M.F.'s own acts of self-harming behavior, and C.F. lied about defendant's alleged physical abuse to avoid responsibility for M.F.'s death.

Dr. Super further testified that he could not rule out that the oval shaped injuries were inflicted by a hand-held Taser. Dr. Super explained that a Taser will fire a dart that is connected to the device with a wire; when the dart is discharged into a person, it will deliver an electric charge. If the dart is not attached, a Taser has two electrodes at the end of the barrel, each about the size of a paperclip, that can inflict a "stun" and burn the skin if the barrel is held against the skin long enough. If the tissue is damaged, there will be a scarring process on the burns. The extent of the damage would depend on how hard the barrel was pushed against the skin, and whether the victim "makes scars easily. Some people don't scar as easy and some people make a very exuberant scar." Dr. Super agreed the size of the oval marks on M.F.'s body could be consistent with being inflicted by the electrodes in a Taser's barrel, and M.F. was apparently the kind of person who made "an exuberant scar" after being injured.⁷⁰

70 Dr. Super was recalled by the defense and qualified his testimony about the possible Taser burns. He testified that he previously conducted autopsies where a Taser had been used on the victim, and the Taser left "little small rectangular scars that are next to each other, almost like an equal sign." He did not believe the marks on M.F.'s body were consistent with such scars. Dr. Super conceded his experience was based on Taser marks inflicted by law enforcement officers; he did not know whether all types of electronic discharge devices left the same type of marks on a body.

Dr. Super believed it was dangerous to declare that certain injuries were the result of abuse "versus not knowing it's abuse. I know that the injuries to the mesentery that are quite common in children that have inflicted injuries, they're quite common. Is that the only way they can get those injuries; no, there's other ways they can get them."

At the time of trial, Dr. Super did not feel there was any need to conduct an additional autopsy. He would have informed law enforcement if he felt strongly that M.F.'s death was not accidental.

On October 15, 2014, after the autopsy, Ms. Clark contacted defendant and asked for a list of physicians or facilities where M.F. had been seen. Defendant complied and provided a list. Ms. Clark obtained M.F.'s treatment records and gave them to Dr. Super for his review.

PART XII

DEFENDANT'S STATEMENTS AFTER THE AUTOPSY AND THE DETERMINATION OF AN ACCIDENTAL DEATH

Sergeant Mollett ⁷¹

71 Sergeant Mollett testified as a rebuttal witness; his testimony is presented as part of the sequential history of the investigation.

In October 2014, at some point after the autopsy, Sergeant Robert Mollett went with Ms. Clark to the home of defendant and Gerardo. The autopsy report was not final, but Mollett was informed by Dr. Super that M.F suffered "some type of internal bleeding in the abdominal cavity." Mollett informed defendant and Gerardo about this finding. Mollett never said that M.F.'s organs were "calcified."

Sergeant Mollett testified that they had no information about how M.F. suffered the fatal injuries. During this visit, Mollett looked at the bedpost in M.F.'s bedroom because "there was a claim that M.F. may have fallen onto the bed post. I made no opinion if it was accidental or intentional at that time, just that there was some kind of injury that may have been caused by a bed post. So I wanted to see the bed post."

Sergeant Mollett determined defendant was the source for the report that M.F. fell on the bedpost, and he was advised by other detectives about defendant's statement regarding the bedpost. He went to the house "to answer some of the unanswered questions" about whether a bedpost caused M.F.'s injuries, and he did not rule out whether someone threw M.F. on the bedpost.

Defendant's Statements to Ms. Hunt on October 21, 2014

Lynn Hunt, a social worker with Madera County, was directed to further investigate M.F.'s death by Kelly Woodard, the director of the Department of Social Services.

On October 24, 2014, Ms. Hunt and the public health nurse met with defendant at her house. The entire family was home. Ms. Hunt began by interviewing each child in the living room, in the presence of defendant and Gerardo. None of the children disclosed anything about being abused.

After speaking with the children, Ms. Hunt met with defendant and Gerardo. Gerardo did not make any statement about M.F.'s death, but he was present when defendant spoke to Ms. Hunt. Ms. Hunt testified that defendant was calm as she gave this statement.

"[Defendant] told me that she did not actually see … [M.F.] obtain any injuries that day, so she thought it might be possible that … the bleeding occurred because of an injury, some scarring on her pancreas that could have been old but she said she didn't have any knowledge that [M.F.] had had any injury that day that would cause her to have … such an injury. And she did make a statement that, normally, when this type of injury happens, she was told it would be like someone being in a severe car accident would have this type of injury that would bleed to this extent." (Italics added.)

Ms. Hunt further testified:

" 'I asked if they had heard anymore about the cause of death, and [defendant] stated that they had talked to a detective who had come to their home. He explained that [M.F.] had bled from a tear in her pancreas. I asked her to explain further. She explained that the pancreas had become scarred due to old trauma or from a condition at birth that leads to a disconnect in the pancreatic duct system, which causes scarring later in life.

" 'She reported that [M.F.'s] pancreas was not soft and flexible as a normal pancreas would be. Her pancreas had a tremendous amount of scarring, making her pancreas hard and inflexible. It appeared that [M.F.] had caused some sort of tearing in the area when she had some type of temper tantrum, which she had regularly, and this day she passed away, she had a temper tantrum that must have caused some tearing and she was bleeding internally, and they had no idea.

" 'I asked if there was any other way that could have - if there was any other way that could have caused the bleeding, and they said that they were told that a person in a severe car accident might have that sort of injury or - or repeated blunt force trauma to the pancreas could cause the bleeding, and [M.F.] had not had any injuries that day, nor had - had anyone hit her. She had not fallen, but she did tend to get upset and flail her arms, maybe throw herself on her bed, but her mother did not witness that.' "⁷² (Italics added.)

72 Sergeant Mollett testified that he told defendant the autopsy showed M.F died from "some type of internal bleeding in the abdominal cavity," but he never said that M.F.'s organs were "calcified." Dr. Super testified that there was no visible injury to M.F.'s pancreas, but a microscopic examination of pancreatic tissue showed "organizing fibrosis" and a prior injury that was "healing." There is no evidence defendant was told that M.F.'s pancreas was "scarred," "hard," and/or "inflexible." While defendant told Ms. Hunt that M.F. allegedly had a history of harming herself, she also stated that she did not observe M.F. doing so before her death - a statement completely inconsistent with her prior statements about what happened.

Ms. Hunt provided some referrals for services for grief counseling, and the meeting ended.

Defendant's Additional Postautopsy Statements

M.M., defendant's adoptive sister, testified that at some point after M.F.'s death, defendant told her that M.F. had "some former injury when she was living with her [biological] mom, that the [mother's] boyfriend hit her or something and that could have torn - and she threw a fit, and she threw herself against the bed, and she could have bled to death."⁷³ M.M. had never seen M.F. have any "fits."

73 As previously noted, the prosecution's evidence was that M.F. and C.F. were removed from their biological mother the second time because of a neighbor's report that their mother hit M.F. Their mother was later assaulted by G.'s father and the baby suffered bruises, and that resulted in the final removal of the children from her custody. The prosecution did not introduce evidence that M.F. was assaulted by the boyfriend of the biological mother.

Ms. McCully testified that within a week or two of M.F.'s death, defendant came to the school and gave Ms. McCully a picture that M.F. had colored and a pamphlet from her memorial service. Defendant said they had learned about M.F.'s cause of death, "that there was scarring on the pancreas and that was the cause of death."

October 29, 2014 - Interview with C.F.

On October 29, 2014, Corporal Jeff Noland of the Madera County Sheriff's Department interviewed C.F. about how M.F. died; defendant and Gerardo were present. C.F. was sad that his sister died and did not make any disclosures. C.F. testified that he did not tell anyone what defendant did to M.F. because he was scared.

Determination of An Accidental Death

Ms. Clark, the deputy coroner, testified the decision about a decedent's manner of death, and whether it was a homicide, an accident, natural causes, or inconclusive, was reached in a "collaborative effort" with Dr. Super, the pathologist. "We'll discuss this case, and … he'll provide the final autopsy report. We'll discuss it, and then it will be finalized…."

In February 2015, the final autopsy report for M.F. was issued. Ms. Clark testified that based on the pathologist's autopsy and the information obtained in October 2014, "[w]e decided that it - at that time it was an accidental death."⁷⁴

74 Ms. Clark, the deputy coroner, was recalled as a defense witness, and testified that the initial finding of an accidental death was based on her conclusion that M.F. intentionally threw herself on a bedpost, which itself was based on defendant's statement on October 13, 2014, that M.F. threw herself on a bedpost.

PART XIII

THE PROSECUTION'S AUTOPSY EXPERT

We deviate from our chronological account of this case to address the trial testimony from Dr. Carol Berkowitz, the prosecution's expert about the autopsy. Dr. Berkowitz accepted Dr. Super's objective findings from conducting the autopsy but testified that M.F.'s external and internal injuries were consistent with child abuse and homicide, and not with an accidental death.

Dr. Berkowitz was the chief of the general pediatrics division at UCLA-Harbor Medical Center, board certified in child abuse pediatrics, and cochair of the child death review team for Los Angeles County. Dr. Berkowitz reviewed M.F.'s birth records, medical and school records, the SCAR forms filed about her suspected abuse, and her autopsy and pathology records.

At the time of her death, M.F. was not malnourished but her height and weight were "on the smaller side."

M.F. had lots of raised scars on her abdomen, lower chest, and back that were circular and looked like healed cigarette burns. After reviewing M.F.'s records, Dr. Berkowitz believed these scars were consistent with burn injuries inflicted by a Taser, or a type of gouging injury.

Dr. Berkowitz believed M.F.'s head injuries were not self-inflicted because they were on various parts of the head, whereas self-inflicted head injuries are usually in the same spot and do not result in subscapular bleeding. The injuries were instead consistent with M.F.'s head being hit against a wall. These injuries would have been painful and left the child dizzy. They could have jarred her brain and resulted in a traumatic brain injury similar to those suffered by football players. She had never seen these types of injuries on a child. The level of force required to inflict head injuries that resulted in subscapular bleeding could not have resulted from someone throwing themselves backwards onto the floor or a bed post. M.F.'s head injuries were more consistent with someone else hitting the child's head against an object or using an object to hit her head.

Dr. Berkowitz testified that the amount of blood in M.F.'s abdomen meant that 30 percent of her body's total volume had left her blood vessels, "a massive amount of blood that she lost intra-abdominally," and she went into shock. The process of internal bleeding was quick because the blood "was just pouring out, so rapidly and accumulating" that it did not have sufficient time to clot, and "bleeding was very rapid and death occurred within not that big of a time interval from the time that the bleeding started till she went into a cardiac arrest."

As M.F. was internally bleeding to death, she would have felt dizzy and like she was going to pass out. She would have lost control of her body and urinating on herself would have been part of that process. The performance of CPR would not have helped since the blood had already left her vessels and gone into her abdominal cavity.

Dr. Berkowitz testified that the small amount of green fluid in M.F.'s abdomen would have been from her bile ducts, and "you can have green stomach contents if the bile is not working its way through your intestine but goes back into the stomach because your intestines aren't working, which would be the case if you have a lot of blood in your abdominal cavity. So the blood is like an irritant, and the intestines just don't work well. [¶] So … for me, I don't think it had any significance." There was some semifluid green stool in M.F.'s colon, further down in her intestinal tract, and that was not abnormal.

Dr. Berkowitz testified that the autopsy photographs showed the tears in the mesentery as the source of the internal bleeding, and a purple or clotted area that was "probably the point where there was a direct traumatic injury or blow to that area that led to disruption of … the blood vessels that were specifically in that area."

Dr. Berkowitz agreed there was evidence of a prior nonfatal mesenteric injury but believed the existence of fibrotic tissue indicated the prior injury could have been six months to even years old. The presence of the fibrotic tissue meant there was "a lot of scar tissue" that was "thicker than the normal mesentery." The mesentery tissue itself was weaker than the thicker fibrous tissue. A prior, nonfatal injury to the mesentery could only be detected through imaging studies or exploratory surgery.

The fibrous tissue from the prior injury did not contribute to the amount of bleeding that occurred from the fatal injury. "Fibrous tissue tends to be thick and hard; it's the blood vessels that are present. So when we talk about previously injured tissue being more prone to bleed with less intense trauma, it's because the blood vessels … still haven't completely healed," but ultimately, the walls of the blood vessels become thicker and stronger and it takes between one to two months to reach that stage.

"Q Now, did you find it peculiar, then, that the injury that caused the [fatal] bleeding was in the exact same spot where the fibrous tissue was located?

"A No, because actually the mesentery attaches in certain areas. Most of the mesentery is hanging loose, and it attaches. In the areas where the mesentery is loose, a blow, and the mesentery moves over. Where the mesentery is attached, it can't get out of the way. So it's specific areas of the mesentery that, if they are injured, would be reinjured with trauma because they can't move out of the way. They are fixed in position."

A child who suffered a prior abdominal injury to the mesentery, or repeated blunt force trauma to the abdomen, would suffer pain associated with movement. The child would guard or hold their belly to limit how much the abdomen was moving, and also limit bending down to avoid pain.

There was no evidence in M.F.'s medical records that she previously suffered significant abdominal trauma. A child's daily activities would not affect the mesentery and the healing process because it was protected by the abdominal wall. "Moving around doesn't tear your mesentery."

There was no injury to M.F.'s pancreas, and the blood surrounding the pancreas likely came from the mesentery injury. The contusion to M.F.'s lung could have resulted from a separate act of blunt force trauma, or the blunt force trauma to her stomach might have pushed up her other organs.

Dr. Berkowitz had never seen evidence of a decedent self-inflicting fatal blunt force trauma injuries to the abdomen. "I can't imagine being able to … self-inflict an injury like that[,] that led to tears in the blood vessels of [the] mesentery." The blunt force trauma that caused the fatal mesentery bleeding would have been applied to her front side and not her back.

Dr. Berkowitz testified to her medical conclusion that M.F. experienced physical abuse and an inflicted injury that led to her death. The time frame from the infliction of the fatal injury, to when M.F. became symptomatic and unresponsive, would have been less than an hour, and likely 25 to 30 minutes.

Dr. Berkowitz reached this conclusion independent of M.F.'s school records, but her review of that information led her to further conclude "this was not an isolated event, what [M.F.] experienced, that there have been prior episodes of physical abuse that the school had identified and filed reports on. So this was more than a single isolated event."

Defense counsel asked a hypothetical question about whether the fatal mesenteric bleeding could have been inflicted by a person of C.F.'s age and size, who threw a child onto a tile floor, got on top of her, and kicked her in the abdomen and lung. In response, Dr. Berkowitz testified that the act of throwing her down was less relevant than jumping on top and kicking her, which would have been "a good mechanism for causing that injury." "Kicking her, stomping on her, sitting on her, punching her," especially if she was being held down, meant she could not "move her body to get way from the force of the blow."

Dr. Berkowitz also reviewed photographs of small marks and scars on C.F.'s body. These had the same distinctive shape and were consistent with small marks on M.F.'s body that looked like cigarette burns. A slanted linear scar on the left side of C.F.'s back was consistent with being inflicted by a sharp object, likely a knife, that had penetrated into the body; it had very sharp, clear edges and was not jagged.

PART XIV

DEFENDANT'S CONTINUED ABUSE OF C.F. AFTER M.F.'s DEATH

After M.F. died on October 10, 2014, defendant and Gerardo retained custody of all their children, including C.F. Defendant's younger children continued to attend Webster. Ms. Flores testified defendant would walk by the special education classroom "for no reason," even though her other children were in different rooms.

C.F.'s Testimony

C.F. testified that after M.F. died, defendant told him that contacting his biological mother "wasn't an option" because "she wasn't around anymore."⁷⁵ Defendant continued to physically abuse him, she seemed "more angry" at him, and he was scared for his life.

75 As will be explained, M.F.'s biological mother was not advised about her daughter's death until a social worker contacted her in March 2015. The biological mother was living in Mariposa, and there was no evidence the social worker had any problem finding her.

C.F. was still required to clean the house, and defendant continued to inflict the same physical abuse on him: making him stand all night with plastic bags on his feet, run laps outside and beat him with the belt if he violated her rules. She no longer used the Taser-like device because it was broken. C.F. remembered one specific time after M.F. died when he was in trouble for something. Defendant told him to grab the belt and he obeyed, and she beat him with it.

C.F. testified that after M.F.'s death, social workers asked him if there was anything he was scared about in defendant's house, and he would say no.

C.F.'s School Never Receives Authorization to Administer Medication

C.F. testified that defendant continued to take him for medical examinations and obtain prescription medication. The prosecution again introduced medical records to corroborate his testimony. In November 2014 and January 2015, defendant took C.F. for medical examinations, again claimed he reinjured his right elbow, and asked for and received prescriptions for Norco. In February 2015, she took him for another medical examination and said he injured his knee, and again received a prescription for Norco.

Ms. Rosa, who had been an aide in M.F.'s special education class, was working at C.F.'s middle school during the 2014-2015 school year. Ms. Rosa was in charge of the paperwork to administer prescription medication to students, and the school required a doctor's note and a district permission form. C.F.'s middle school never received any orders for him to take prescription medication during the 2014-2015 term, and no prescription medications were administered to him.

PART XV

THE RENEWED INVESTIGATION INTO M.F.'S DEATH

As of February 2015, the coroner's office concluded M.F.'s death was accidental, C.F. remained in defendant's house, and defendant's abuse of C.F. continued. The matter would have ended that way, or with an even more grievous outcome, but for the actions of a social worker who realized M.F.'s injuries were not consistent with an accidental death.

Ms. Davila is Assigned M.F.'s Case

On January 5, 2015, Myia Davila, a social worker with Madera County, was given the case file on M.F.'s death by her supervisor, Justin Day. Mr. Day told her "just to put [the file] in my drawer and wait for a report to come in that would basically close the case. He had informed me that investigation was already done," and "[i]f the child's death was ruled an accident, I was to close the investigation."

February 2015 - Ms. Davila Reads the Autopsy Report

In February 2015, Ms. Davila received the final autopsy report that M.F.'s death was accidental. After reading the report, Ms. Davila was concerned about the multiple external and internal injuries on M.F.'s body and consulted with the public health nurse and a physician at VCH about the findings. The public health nurse explained the bruises under M.F.'s scalp were at different stages of healing. Ms. Davila realized that "would indicate that they didn't occur all at the same time. So, there would have been prior injury to her head prior to the date of death."

Once Ms. Davila understood the autopsy report and the stated cause of death, she was concerned about whether M.F.'s death was accidental. "My questioning was based on the number of bruises, the reference to the blunt trauma to her abdomen, as well as a statement made by one of the deputies that her panties smelled of rubbing alcohol. [¶] … [¶] There are many cases documented regarding children self-inflicting trauma to their heads, limbs, not to the abdomen is kind of what stood out." Ms. Davila was not sure if she disagreed with the conclusion that M.F.'s death was accidental, but she did not think "that CPS's investigation was thorough."

Ms. Davila met with Mr. Day and discussed her concerns. She told him that "I could ethically not close the case based on the questions I had from the autopsy report, and if he wanted to reassign it to another worker, then that would probably be a better option, but I couldn't move forward with closing the case." Mr. Day directed Ms. Davila to investigate M.F.'s death.

Ms. Davila reviewed M.F.'s existing case file that contained two photographs of the girl's prior injuries - a bite mark on M.F.'s right jaw and the large bruise on the right side of her abdomen that wrapped around to her back, which the school reported to the department in February 2014. Ms. Davila learned the department never responded to the investigative report about the abdominal bruise.⁷⁶ She tried to review M.F.'s adoption file but it was sealed, she never saw it, and she was only able to obtain the children's official records for the period after February 2014, when their adoption became final.

76 On February 26, 2014, both Ms. McCully and Ms. Baughman reported M.F.'s large abdominal bruise to the department. On the same day, Deputy Kirchert performed a welfare check on M.F at defendant's house and saw the abdominal bruise. The department erroneously sent the confidential responsive report about this injury and referral to defendant.

After reviewing the postadoption records, Ms. Davila discovered there were several referrals in the department's computer system about the possible physical abuse and neglect of M.F. and C.F. She determined the department either failed to respond to the referrals, transferred the cases to the sheriff's department, or the cases were "closed as 'unfounded.'" Ms. Davila also discovered that social workers interviewed the children in front of the parents.

March 4, 2015 - Defendant's Statement to Ms. Davila

On March 4, 2015, Ms. Davila met defendant at her home. The children were present, so Ms. Davila spoke with defendant outside the house about M.F.'s death. Defendant gave a lengthy statement.

" '[Defendant] stated that [M.F.] was in her room throwing a tantrum. [Defendant] stated that [M.F.] had been pulling things off the shelf in her room, in particular, the temporary cast they were given at the hospital.

" '[Defendant] stated that [M.F.] would often throw tantrums and had self-mutilating behaviors. [Defendant] stated that [M.F.] had scarring on her abdomen from cutting herself with her fingernail clippers.

" '[Defendant] stated that she heard things hitting the wall and went into [M.F.'s] bedroom. [Defendant] stated that she noticed white powder around [M.F.'s] mouth, and [M.F.] stated that [C.F.] had made her do it. [Defendant] stated that she saw something green in [M.F.'s] mouth and she asked [M.F.] what it was, and [M.F.] stated that it was peas. [Defendant] stated that she did not have any peas in her house and thought it was strange that [M.F.] would say that she had eaten peas.

" '[Defendant] stated that [M.F.] started kicking the TV and was on the floor with her feet under the bed and was kicking the bed from underneath. [Defendant] stated that she saw [M.F.] throwing herself on the bed and the bed post. Defendant stated that she pulled [M.F.] away from the bed post and put her on the ground between her knees. [Defendant] stated that she called [C.F] in the bedroom to try to assist in calming [M.F.] down, as the siblings are very close. [Defendant] stated that she did not put any weight on [M.F.], but was straddling her.

" '[Defendant] stated that [M.F.] was kicking her and still having a tantrum, so [defendant] tried to get her attention. [Defendant] stated that she continued to tell [M.F.], "Look at me. I love you," several times. [Defendant] stated that [M.F.'s] stated that, "I peed. I peed," and wanted to go to bed because she was tired. [Defendant] stated that she informed [M.F.] that she would need to take a shower first.

" '[Defendant] stated that she walked [M.F.] to the bathroom and started the shower. [Defendant] stated that she instructed [M.F.] to undress and get into the shower. [Defendant] stated that she left the room, but does not recall what she did when she left the room. [Defendant] stated that she returned to the bathroom because she always comes back to check, and she saw [M.F.] laying in the bathtub. [Defendant] stated that [M.F.] had taken off her clothes except for her pants. [Defendant] stated that [M.F.] looked like she was falling asleep and did not look right. [Defendant] stated that [M.F.] lifted her legs for her pants to come off. [Defendant] stated that she was talking to [M.F.], and [M.F.] was moving her lips but was not saying anything. [Defendant] stated that [M.F.] did not look right.

" '[Defendant] stated that her husband is a deputy sheriff in San Joaquin County. [Defendant] stated that she called for her husband and took [M.F.] out of the bathtub. [Defendant] stated that [M.F.] was looking at her and then appeared to be unconscious. [Defendant] stated that her husband took [M.F.] from her and took her to her room to start CPR. [Defendant] stated that she called 911, and the paramedics arrived and started working on [M.F.]. [Defendant] stated that she was not in [M.F.'s] bedroom and could not see what being done to her. [Defendant] stated that [M.F.] was transported to Valley Children's Hospital but never regained consciousness.

" '[Defendant] stated the sheriff's department came to their home in the middle of the night once the death was determined as accidental to inform them of the findings. [Defendant] stated that she was informed that [M.F.'s] death took approximately 20 minutes … from the time she injured herself to the time that she became unresponsive. [Defendant] stated that the cause of death was from an old injury near [M.F.'s] pancreas.

" '[Defendant] stated [M.F.'s] organ had hardened. When she was throwing herself on the bed, she most likely caused a bad tear that opened the injury. Defendant stated that the original injury was equivalent to a bad car accident.

" '[Defendant] stated that she asked [C.F.] if there were - there was ever a car accident or physical abuse when they lived with their biological parents. [Defendant] stated that [C.F.] had said, "No" to both questions.

" '[Defendant] stated that the injury was equivalent to someone punching [M.F.] in the stomach by a larger, strong person, not a kid. [Defendant] stated that she knew there was no way to determine gender, but a punch by a man. [Defendant] stated that the injury would have taken [M.F.'s] life at some point.

" '[Ms. Davila] asked [defendant] about undressing [M.F.] again. [Defendant] stated that she took [M.F.'s] jeans off first, but her underwear were still on.' "⁷⁷ (Italics added.)

77 In contrast to her prior statement to Ms. Hunt, that she did not see M.F. harm herself that night, defendant gave Ms. Davila a combination of her previous statements to Ms. Hardcastle, Deputy Kirchert, and Ms. Clark - that M.F. threw herself on the bedpost, added that she was self-harming by cutting herself with fingernail clippers, C.F. was in the bedroom, and said for the first time that she sat on top and straddled M.F.'s body but did not put any weight on her.

Walk-through of Defendant's House

After obtaining defendant's statement, Ms. Davila received permission to walk through the house and take photographs. Defendant explained things had changed in the house since M.F.'s death. Ms. Davila briefly greeted the children and did not conduct any interviews.

As she walked through the house, Ms. Davila noticed holes in the hallway walls and other places. The holes were about shoulder high, and she took photographs of them.

When they reached the hallway bathroom, defendant said this was where she found M.F. "sitting on her knees with her head down and the shower water was coming over the back of her," and the water was coming out of the shower head. (Italics added.)

Defendant escorted Ms. Davila into M.F.'s old bedroom, and said they took M.F. into that bedroom after removing her from the shower. Ms. Davila was confused why Gerardo administered CPR while the girl was lying on a bed with a soft surface, when the correct procedure was to place someone on a hard surface to give CPR. Defendant pointed out the bedpost and said M.F. threw herself on it. Ms. Davila took a photograph of the bed and bedpost.

Ms. Davila advised defendant that the case would be reviewed by the "Child Death Review Team."

Child Death Review Team

On March 5, 2015, Ms. Davila met with members of the department's Child Death Review Team, a "collaboration of multiple agencies to discuss when a child dies within the county, circumstances that led up to it, and procedures that will follow from it." Ms. Davila reported the results of her initial investigation, questions that arose from the autopsy, and inconsistencies in defendant's statements about how M.F. died. Ms. Davila was directed to continue the investigation.

March 10, 2015 - Meeting at Webster Elementary

Ms. Davila left her card at Webster Elementary with instructions for the staff to contact her if anyone had information about M.F. Ms. Flores called Ms. Davila and said the school had records and documentation that could assist the investigation.

On or about March 10, 2015, Ms. Davila conducted an interview at Webster Elementary with Ms. Shepherd, the vice principal; Ms. McCully, M.F.'s teacher; and Ms. Flores and Ms. Smith, the classroom aides.

Ms. Flores testified that the school staff provided information to Ms. Davila about M.F., that "we had noted injuries that she'd had and that some of my group in the classroom, the adults, the supervising staff, had filed CPS reports." Ms. Flores stated her belief that defendant caused all of M.F.'s injuries. M.F. "was dirty. She smelled like urine. She was bruised and scraped and injured." Ms. Flores said that the family was "odd" and "liars" because defendant, as M.F.'s mother, had excuses for all of M.F.'s injuries, and "you cannot justify what was happening. It couldn't be true that all those things were happening. Throughout the years … notes were written that were untrue regarding myself. To me, that's a lie." Ms. Flores said she did not like defendant because she suspected M.F. suffered from defendant's neglect and actions, even though she did not have personal knowledge it happened.

Ms. Smith testified that during the meeting, the school staff talked "about the things that we saw with [M.F.]. They talked about general neglect and abuse." Ms. Smith reported the prior calls that she personally made to report suspected abuse, and that M.F. had "many black eyes" and other injuries.

Ms. Davila testified that she learned additional information at this meeting, including reports made by the school staff to the department prior to the children's adoption in February 2014. Ms. Davila was concerned certain information either did not make it to the department or was missing from the files. Ms. Shepherd gave her a copy of the February 5, 2014, SCAR form that reported the facial bruises, that was not in the file.⁷⁸

78 On cross-examination, defense counsel asked Ms. Davila whether she investigated statements from the school staff that C.F. admitted he previously harmed M.F. Ms. Davila testified that when she spoke with the staff, she was advised M.F. once blamed C.F. for hitting her. Ms. Davila testified that the purpose of her continued investigation was to make sure the children were safe in defendant's house after M.F.'s death, even if C.F. was responsible for some of M.F.'s injuries, because defendant "should have been protecting all the children." Later in the investigation, C.F. told Ms. Davila he never attacked or abused M.F.

Ms. Davila's Interview with C.F.

Also on March 10, 2015, Ms. Davila met with C.F. at his middle school. C.F. kept saying he wanted his mother and to end the interview. Ms. Davila honored his request and did not press him to continue. Ms. Davila was concerned C.F. may have been coached because he was "extremely guarded, more so than any other child I ever interviewed, before or since."

Notification of M.F.'s Biological Mother About Her Death

Also on March 10, 2015, Ms. Davila drove to Mariposa and contacted Monique O., the biological mother of C.F. and M.F. The autopsy report stated M.F. had suffered a prior internal injury, and Ms. Davila wanted to investigate whether that injury occurred before the child entered foster care.

When Ms. Davila approached Monique, their initial contact was "pretty horrible" because Monique had never been told that M.F. had died, even though it happened six months earlier. Monique screamed and fell to her knees when Ms. Davila told her that M.F. was dead. They were eventually able to talk, and Ms. Davila asked if M.F. previously suffered trauma to her abdominal area. Monique could not recall M.F. suffering an injury that would have caused that type of damage to her body.

On March 12, 2015, Ms. Davila met with A.F. and L.F. at their school, and they did not disclose anything about how M.F. died. Ms. Davila was concerned after meeting with them because "at the end of [A.F.'s] interview he stated to me, 'When you have a family, you protect them and they protect you." A.F.'s statement was "unsolicited," and Ms. Davila had never heard a child say such a thing.⁷⁹

79 Also, on March 12, 2015, Ms. Davila met with Gerardo at the Madera County Social Services Department. There was no evidence introduced about any statement made by Gerardo.

PART XVI

REMOVAL OF THE CHILDREN FROM DEFENDANT'S HOME

Ms. Davila's investigation continued with the collection of school and medical records for C.F. and M.F. As will be explained, this activity inadvertently led to the department's decision to remove C.F. and the other children from the custody of defendant and Gerardo, and their placement in foster care.

March 25, 2015 - Discovery that C.F. was in the Hospital

On March 25, 2015, defendant called C.F.'s middle school and said he would be absent because they were going to the emergency room since he was complaining of side pain.

On the same day, Ms. Davila served court orders she had obtained to collect the children's medical and school records. When Ms. Davila went to C.F.'s middle school to collect his records, she was told that C.F. was in the hospital with abdominal pain.

Ms. Davila panicked because M.F. "had died of abdominal injury and now [C.F.] is in the hospital with an abdominal injury, it was very concerning." She contacted several medical providers and learned C.F. had been seen at MCH and discharged.

Ms. Davila drove to defendant's house, and J.F. (defendant's oldest biological son) said defendant and C.F. were not home yet. Ms. Davila called her supervisor, who instructed her to go to MCH, and serve the court order for C.F.'s records.

At MCH's emergency department, Ms. Davila saw defendant walking through the lobby. Ms. Davila advised the hospital staff not to discharge C.F. until she had talked to a doctor so she could make sure he was safe.

Ms. Davila met defendant and C.F. in a treatment room, where C.F. was in a hospital bed. When C.F. saw Ms. Davila, he turned away. Defendant asked to speak with Ms. Davila outside the room. Defendant told Ms. Davila that she had been speaking with her husband, and "they were both concerned that [C.F.] was self-harming and wanted me to talk to him in private."

Ms. Davila returned to C.F.'s hospital room by herself. C.F. appeared shocked defendant was not there. Ms. Davila explained defendant wanted her to talk to him alone. C.F. gasped, his eyes widened, and he became more responsive. Ms. Davila explained she just wanted to make sure he was okay. C.F. did not give a statement or say anything was wrong.

After speaking with C.F., Ms. Davila called her supervisor and explained the situation. Her supervisor directed her to have C.F. transferred to VCH so a child abuse expert could examine him. C.F. was transferred by ambulance to VCH at 10:00 p.m., and defendant was with him in the ambulance.

When C.F. was examined at VCH, the doctors found "some fluid that was unexplained in his abdomen" but they "weren't terribly concerned about it." Ms. Davila had "a lot of concerns" and wanted to determine the source of C.F.'s abdominal injury. Defendant said C.F. complained of abdominal pain for two days, it was worse that morning, so she took him to the hospital, and she thought something happened at school. C.F. said that he got hit with a football, but also said that he did not know what happened and his stomach just hurt. C.F. was discharged from VCH late that night.

Ms. Davila testified that after C.F. was discharged from VCH, she called her supervisor from the hospital's parking lot, and was instructed to call the sheriff's department to generate an investigation.⁸⁰

80 C.F. testified that defendant took him to MCH because his stomach was hurting, he could not remember why his stomach hurt, but also said defendant did not do something to him.

March 26, 2015 - Final Prescription for Norco from Kaiser

On March 26, 2015, defendant called C.F.'s middle school and reported she was at the doctor's office with C.F., he probably would not be at school that day, and they would get a doctor's note. The school never received a doctor's note.

At 9:30 a.m. on March 26, 2015, defendant took C.F. to Kaiser and reported she was following up on C.F.'s emergency room visit. Defendant said that C.F was tackled at school on March 23 and did not complain of pain until that evening. Defendant said C.F.'s pain got progressively worse, he was seen at MCH the previous day, and tests showed some fluid in the pelvic area. She said C.F. was given fluids and pain medication, transferred to VCH, and discharged earlier that morning. Defendant said that C.F. still felt nauseated and had abdominal pain, and Tylenol, Aleve, and Advil did not help, and asked for more pain medication.

The physician determined C.F. was not in acute distress and there were no bruises. His abdomen was soft, and there was tenderness over the left side and the lower abdominal area. C.F. was given a prescription for nausea medication and Norco at the strength of five milligrams.

March 27, 2015 - C.F.'s First Forensic Interview

After Ms. Davila consulted with two detectives, it was decided that a forensic interview with C.F. would be scheduled.⁸¹

81 A forensic interview of a child is conducted by a trained interviewer for the purpose of gathering evidence and preventing the child from having to repeatedly give a statement. The child and interviewer are in one room and the interview is recorded, while the "Child Forensic Interview Team" (CFIT), consisting of law enforcement personnel, district attorneys, and other investigators, watch the interview by video in an observation room.

On March 27, 2015, the forensic interview was conducted with C.F., and he did not disclose anything. Ms. Davila monitored the interview, and testified C.F. appeared to have been coached and rehearsed. "His body language didn't match … his statements when he was talking about [M.F.]. He was stiff. He kind of had a flat affect, and it was kind of like he was disconnected from the story."

After C.F. was interviewed, Detective Noland interviewed Gerardo.⁸² While that was going on, Ms. Davila sat with C.F. for about 90 minutes and tried to chat with him. C.F. was initially "very standoffish," eventually warmed up to her, and they did not discuss the case.

82 The prosecution did not introduce direct evidence of Gerardo's statement, but Ms. Davila later testified about how his account was inconsistent with the statements of other family members.

Defendant Tells C.F. What to Say at the Forensic Interview

C.F. testified that after he was seen at VCH and before the forensic interview, defendant told him that some of the investigators wanted to talk to him again. Defendant told C.F. to say that M.F. "was throwing herself … on the bedpost" when she died.

C.F. testified that during the forensic interview, he was asked about both his stomach pain and what happened to M.F. C.F. testified that he was not honest during this interview and repeated defendant's story that M.F. threw herself on the bedpost. C.F. felt he had to follow defendant's instructions, or he would be in trouble.

Removal of the Children

After C.F.'s hospitalization and forensic interview, Patricia Caudillo, the department's program manager, was worried C.F. would be killed and decided the department would file for the removal of all the children from the home of defendant and Gerardo.

Around 10:30 p.m. on March 27, 2015, a few hours after C.F.'s forensic interview, Ms. Davila and deputies arrived at defendant's home to take the children into protective custody, but no one was home. They went to the home of defendant's parents, who contacted the family, and learned they were in Fresno. Ms. Davila and the deputies went back to defendant's home to wait for them.

C.F. testified that after the forensic interview, the entire family went to dinner in Fresno. Gerardo received a telephone call during dinner, went outside, and was on the phone for most of the evening. When they finished dinner, Gerardo said "that they're going to take us." They returned home very late, Ms. Davila and numerous police cars were waiting for them, and she advised the children they were going into foster care. C.F. was a little relieved to be leaving defendant's home.

March 27, 2015 - Defendant's Statement to Detective Noland

On March 27, 2015, Detective Jeff Noland interviewed defendant about what happened on the night of M.F.'s death. This was the last statement defendant gave about M.F.'s death.

Defendant said that on the night that M.F. died, the family went to dinner and left J.F., C.F., and M.F. at home. J.F. later left the house with defendant's parents, and defendant and the family went home so C.F. and M.F. would not be alone.

Defendant said when they got home, M.F. had food in her mouth. Defendant said it was not a big deal, but M.F. "ate a lotta like nonfood items," and she always had to watch her. Defendant saw something white on M.F.'s face, and she thought it was from a powdered doughnut since she had those in the house. Defendant said M.F. and C.F. did "food hoarding where they'll eat until they're ready to get sick.

Defendant said she asked M.F. what and how much she ate. M.F. would not say, so defendant sent her to her bedroom. Defendant heard noise from M.F.'s bedroom, and she was throwing objects around, including crutches that had been previously used by the children. M.F. messed up her bed, pushed her television over, and she was "throwing a fit." Defendant said M.F. had been "throwing tantrums" more often at that time because she did not like being pulled out of her school.

Defendant again asked M.F. what she ate. M.F. said she had peas because C.F. forced her to eat them. Defendant called C.F. into M.F.'s bedroom, and "[f]rom that time on … it's the three of us in there," but the bedroom door was open, and the other children were walking back and forth.

Defendant said she did not want to make M.F.'s tantrum worse, and she just wanted to know what M.F. ate because "she's eaten paint. She's … eaten rubber balls. They used to call me from school. She would eat out of the trash." M.F. became "real agitated" and "started throwing herself around. She started kicking. She went like underneath the bed and she started like kicking up the bed." Defendant said that M.F. had a bed that was low to the floor "because she would go underneath the bed and use the restroom."

Defendant told M.F. to stop but M.F. started to throw up. Defendant "this was also another behavior. [M.F.] would make herself throw up. And I could tell the difference between … I'm sick throwing up and the way that she would do it. Because when she would do it to make herself throw up … I could just tell."

Defendant said M.F. threw her body all over the room, onto the television and the bed, "but she was hitting the bedpost. And when she did that, I got her. And I put her on the ground and I … was on top of her, but I didn't have my weight on her. I had my knees on the floor," and M.F. was "kinda in between my legs…." (Italics added.)

Defendant told M.F. that she loved her, but M.F. kicked at her and tried to get away. Defendant told M.F.," 'You need to stop this behavior. I'm not gonna let you go. I'm not gonna - until you knock it off.' "

M.F. said she had urinated on herself, and defendant explained that was "another thing she would do" to "get out of situations." M.F. wanted to go to sleep, but defendant told her that she needed to shower first.

Defendant said she walked M.F. to the bathroom, and C.F. followed them into the hallway. Defendant started the shower, told M.F. to undress, left her in the bathroom, and closed the door. Defendant told C.F. to play with the other children.

Defendant said she went back to the bathroom to check on M.F. because "that was another thing. CPS would call and say … her hair was greasy." Defendant said "the school would see [M.F.] … that she was itching her head. That maybe she had lice. But no, it was dandruff because she wasn't watching her hair," and defendant was worried what M.F. was going to do when she became an adult. Defendant said, "I started getting in trouble for … her being dirty. And so…I would always make sure that at least she rinsed her hair out and stuff like that."

When defendant entered the bathroom, she discovered M.F. was in shower and "her shirt [was] off but her pants [s]till on," and added that it might "sound crazy" but "that wasn't the first time that she's done somethin' like that either."

Defendant said M.F. was on her back and looking at her. "The drain's open … so the water's coming down," and "the shower wasn't like … coming down and hitting her in the face." Defendant said, "I had just turned the bottom on," and "I was gonna try and get the showerhead on," but "the top part actually never got turned on because … we pulled her out and stuff before that - even before … that even ever happened."

Defendant said she felt badly, like she had done something wrong since she got mad at M.F. Defendant helped M.F. take off her pants and noticed something was wrong with her and did not know if she was pretending. Defendant called Gerardo and asked him to" '[t]ell her to, you know, to listen to me,'" and take her bath so she could go to bed.

Defendant said Gerardo entered the bathroom, but defendant realized something was wrong because M.F. was "just kind of like sleepy." Defendant and Gerardo realized something was really wrong. Gerardo picked up M.F. and took her to her bedroom "so he could have a flat - like a[n] area," and he started CPR. Defendant called 911 while she was still in the bathroom, reported her daughter was not responding to them, and the firefighters responded pretty fast.

After defendant gave this narrative, Detective Noland asked her to explain how M.F threw herself on the bedpost. Defendant said "it wasn't the first time" it happened. M.F. "had a short bed" that had four "wood bed posts at the ends. Because what it is, it's the bottom of the bunk bed but we don't have the top part for her." "So we just had the bottom part. So it's supposed to attach to the top part." Defendant said that M.F "would actually like pick herself up and throw herself … right onto that," and her stomach would hit the top of the bedpost.

Defendant said M.F. "never complained to me that [s]he had pain in her stomach or anything like that. But they said that this injury … that she had like a lotta scar tissue in there…. 'Cause she did … a lot of self-mutilation. And I don't know if that was, you know, maybe she had a pain there and then it was hurting herself...."

Conclusion of Ms. Davila's Investigation

After the children were placed in foster homes, Ms. Davila wrote the detention report based on the records she had collected. Ms. Davila had been led to believe that M.F. was severely developmentally delayed, with severe speech problems and a very low-functioning I.Q. After reviewing M.F.'s records, Ms. Davila determined she was not as delayed as claimed.

Ms. Davila found one SCAR referral form that stated M.F. had a bite mark on her jaw line. If that allegation "had been investigated properly, the bruise would have been measured and they would have known that the bite was either a child-sized palate or an adult palate. And you would have known right there if it was [C.F.] or not," but that was not done.

After she prepared the detention report, Ms. Davila transferred the records from her investigation to Ms. Caudillo. On April 9, 2015, Heather Sharp, another social worker, took over the management of C.F.'s current dependency case. Ms. Davila was asked to make regular visits to the children in their foster home.

Commander Ward's Investigation

On September 30, 2015, Commander Bill Ward of the sheriff's department began his own investigation into M.F.'s death. He reviewed Ms. Sharp's voluminous records and met with the staff at Webster Elementary.

Commander Ward received an initial set of records from CPS. After reading those records and talking "to a few people, it became apparent to me that there was more information from CPS. So, I made another request for information and I got some more. And then much the same thing happened again; I found references to other details or other information that appeared like it should be there but wasn't. So I made another request and got more information."

When Commander Ward met with Ms. Shepherd at Webster Elementary, she gave him a copy of the SCAR form she filed on February 5, 2014, about the bruises on M.F.'s face. Ward thought it was "odd" that SCAR form was not "in any of the CPS records that I had received…. Then when I made a subsequent request for more records from CPS, that particular SCAR was included in the next batch."

Commander Ward was also concerned there were reports in the children's school records about certain injuries that were not in the department's records. There were five to 10 reports from the school and the department that C.F. was physically abusing M.F., and Ward traced these statements to defendant and M.F.

Commander Ward testified that when Ms. McCully appeared at this trial, she brought a copy of the SCAR form that was filed on April 10, 2014, about M.F.'s two black eyes. Ward had never seen this report before, and it was not included in the documents he received from the department.

PART XVII

THE CHILDREN'S DISCLOSURES

While the children were placed in foster homes in March 2015, they did not start to discuss defendant's abuse of C.F. and M.F. until October 2015.

The Children's Initial Time in Foster Care

C.F. testified that he stayed in the first foster home at Yosemite Lakes Park from March to June 2015, when he was transferred to another foster home in Los Banos. C.F. believed he was moved because defendant accused him of hitting the other children, and she also claimed he injured A.F. C.F. testified that these claims were not true. C.F. was angry about defendant's accusations and wanted to tell the social workers what really happened in her house. However, he still felt under defendant's "manipulation" because she had weekly visitations.

Defendant Tells C.F. to Claim He Inflicted M.F.'s Injuries

C.F. testified that defendant talked to him during one visitation and directed him "to tell the investigators that me and [M.F.] were fighting on the day that she passed away because they couldn't do anything to me because I'm a young kid." C.F. was shocked by what defendant said, but he stayed quiet and did not say anything.⁸³

83 C.F. was recalled by the defense and testified that during one of the visits with defendant and Gerardo after he was placed in foster care, defendant told C.F. to tell law enforcement that he saw M.F. throw herself on a bed and she had a tantrum on the night she died.

L.F.'s Discloses Defendant's Abuse

L.F. was 10 years old when the children were placed in foster care. She was in contact with social workers but did not initially disclose defendant's physical abuse of M.F. and C.F. L.F. testified that she finally decided to talk about defendant's abuse of her siblings because she felt "like I was being pressured" by social workers, "like I had to talk about it, like, I couldn't just … take a moment to really just process it, because it was, like, literally, like, a few months after [M.F.] passed away that I was removed."

L.F. attended therapy sessions when she was in foster care, and "they would try to talk to me about it." L.F. still did not feel in a safe environment to talk about what defendant did, but eventually felt differently. "I've grown and [it's] better for me to talk than when I was little. Because I was just so confused about everything that was happening, but now I understand more about what happened, so it's less scary for me to talk about it in that kind of environment."

"Q Okay. So, then, when you were … talking about what happened, did you feel like you had to make up what happened?

"A No.

"Q The things that you've talked about today [at trial], are they things that really happened that you saw within that house?

"A Yes." (Italics added.)

L.F.'s Forensic Interviews

On October 27, 2015, L.F. gave her first forensic interview, and it was recorded. She did not disclose any abuse. Corporal Jackson monitored L.F.'s first interview and testified she was crying and very upset. When L.F. was asked questions, she curled up in her chair and would not answer, and the interview ended.

L.F. testified that she did not feel comfortable during the first interview, she was scared, and felt "[a] little bit" of pressure from her foster mother to speak with someone she barely knew about what happened in defendant's house.

On November 10, 2015, L.F. was interviewed by Ms. Sharp and disclosed, for the first time, what happened on the night that M.F. died. L.F. testified that it was hard to talk about it, but she told the truth.

C.F. Discloses Defendant's Abuse

C.F. was later moved from the foster home in Los Banos to one in Oakhurst. He was 14 years old and in the eighth grade. Defendant's visitations with him had ended.

Ms. Davila drove him to his new foster home and told him that L.F. was talking about what happened in defendant's home. After C.F. heard this information, he "knew at that point that we weren't going back with the defendant," and he was happy about that. He decided to tell the truth about defendant's abuse and gave additional interviews later in 2015. C.F. did not talk to his foster parents, his social worker, L.F., or the other children before he disclosed the new information in these interviews.

C.F. testified that he was truthful during these interviews, but it was hard because "it was the first time I was ever, like, saying it out loud," and he had since tried to "block it out of my mind."

October 30, 2015 - C.F.'s Second Forensic Interview

On October 30, 2015, C.F. gave his second forensic interview, and it was recorded. Corporal Jackson testified that C.F. was "rather matter of fact, rather distant from what we were talking about, very descriptive but … kind of demure about the situation."

Detective Noland testified that C.F. disclosed the abuse during the second part of this interview. Ms. Davila testified about his statements:

"[C.F.] recalled the night of the incident, the night [M.F.] died. He told me that … he and [M.F.] had been in the kitchen cleaning. And [defendant] called [M.F.] into the bedroom. And there was some white powder around her face, thinking that maybe she had eaten some powdered sugar doughnuts.

"[C.F.] stated that he was later called into the bedroom. And when he walked into the bedroom, [defendant] was on top of [M.F.] and she made him lay down next to her. And she beat them both with a portable wardrobe clothes hanger.

"[C.F.] stated that [defendant] continued to punch[] M.F. in the abdomen and M.F. stated that she peed. And [C.F.] recalled watching [M.F.] get drug down the hall towards the bathroom. He stated that her arms were above her head, her eyes were not open and her fingers were trailing in the carpet.

"[C.F.] then told me about how [defendant] would make them eat soap pods and run around the backyard for hours on end. That she would slam their heads into the wall. That she would make them stand for long periods of time with plastic grocery bags on their feet so that she could hear them moving. And if they moved, she would come back and hit them again.

"[C.F.] told me that [defendant] had actually stabbed him in the back and then showed me a scar. He told me that the marks on his upper left shoulder, as well as [M.F.'s] abdomen and back, were from the Taser that [Gerardo] had bought [defendant]. [C.F.] also told me she would make them stand in hot showers. [Defendant] deprived them of food. He also told me of the time where she in was - he stated she was having him cut himself and it was on his upper-left thigh. And she told him he wasn't doing it deep enough, so she grabbed a knife and in a back-and-forth motion gouged him deeper until he stated that she was scared because she drew too much blood and stopped and never had him do that again. So, that's when she started using the Taser more often."

Ms. Davila's Testimony About the Parties' Statements

Ms. Davila testified that during her investigation, she discovered numerous inconsistencies in the family's statements about what happened on the night that M.F. died that "[a]bsolutely" raised red flags.

"[A]t the time of [M.F.'s] death there was a statement that [C.F.] was not in the room. There was another statement that [C.F.] observed from the hallway. And [C.F.] himself stated that he was in the room, made to lie down next to [M.F.] while she was being beaten with a clothes hanger.

"[Gerardo] had indicated, in the report to law enforcement, that he was in the back bedroom and could hear noise in [M.F.'s] bedroom. When I interviewed [Gerardo] he stated that he was in the living room when everything was going on.

"[L.F.] stated that just the biological children were in the home. And the other biological sibling, [A.F.], stated his friend [E.] was there was well. There's been numerous statements about whether [J.F.] was home or not.

"One of the big issues that came up with the inconsistency about that night was that [Gerardo] told me that he was picking up the family dog … who had been spayed that day. And then a statement was made that they went to Sal's Tacos to bring home dinner.

"And [defendant] told me they were called home early because [J.F.] was watching the children and they rushed home because [J.F.] had to leave.

"And the children stated they were shopping at Walmart with their parents earlier. The stories were never consistent about what happened that day."

Ms. Davila testified that Gerardo "told me that they were picking up food as a takeout to take back to the children, and that's when they got the call to come home. Everyone stated that it was food being brought home" from Sal's, and not that they ate dinner at the restaurant. Ms. Davila testified that these inconsistencies could have been the result of faulty memories, the children's young ages, trauma, or trying to withhold information.

PART XVIII

AMENDMENT OF M.F.'S DEATH CERTIFICATE

Corporal Jackson participated in discussions with Ms. Clark, the deputy coroner, about the disclosures from C.F. and L.F. in their forensic interviews, and whether M.F.'s death certificate should be amended.

On November 25, 2015, Ms. Clark amended M.F.'s death certificate from an accidental death to homicide. Ms. Clark testified that she was approached by law enforcement officers, possibly Corporal Jackson and/or Commander Ward, who had opened an investigation into M.F.'s death. The officers advised Ms. Clark they had additional information about how M.F. received the fatal injuries that made them believe her death was a homicide.

Ms. Clark was asked to change the manner of M.F.'s death from accidental death to homicide, and she did so. She knew "there was an additional interview with [M.F.'s] brother in regards to what actually happened in the bedroom, which was different than what was originally - what we originally thought, and there was additional information about abuse that was going on within the home." "[A]t the time, the death certificate was accidental. It wasn't intentional. What they were saying was that [defendant] had injured [M.F.] and caused - caused that injury, and they believed that there was more abuse just besides that that had occurred in the home, and that they were investigating her for homicide instead of accidental death, and that's why they wanted me to change it."

Ms. Clark considered this information when she changed the manner of death, she did not make that decision lightly, and believed there was sufficient information to change M.F.'s death to a homicide.

PART XIV

ARREST OF DEFENDANT AND SEARCH OF THE HOUSE

Also on November 25, 2015, defendant was arrested for the murder of M.F.

On the same day, a search warrant was executed at defendant's home. The search occurred over a year after M.F.'s death, and eight months after C.F. and the children were placed in foster homes. The investigators took numerous photographs of the interior that were introduced into evidence.

Prescription Bottles and Metal Pole

There were numerous prescription bottles found in various places in the house. A metal pole was found inside a drawer in the master bathroom.⁸⁴

84 C.F. testified that defendant used a metal pole from a broken clothes rack to beat him on the night of M.F.'s death.

Discovery of Dents and Stains on the Walls

There were numerous dents, holes, and red stains on the interior walls of the house. The height of each dent and stain was measured starting from the floor, up to the center of the location of the dent or stain on the wall.

There was a dent and a red stain on door to the hallway bathroom. There were two dents along the bathroom's south wall; one dent was located closer to the door frame. The two dents measured four feet eight inches and four feet seven inches above the floor.

In M.F.'s bedroom, there was a red stain above the light switch on the east wall, it was four feet seven inches from the floor.

There were four dents on the east wall of the hallway that ranged from four feet six inches to four feet seven inches above the floor. A swab taken from a stain on the east side of the hall measured three feet nine inches from the floor.

On the west side of the hallway, there was a dent that contained a minute red stain and one hair strand. The dent was just south of the door frame that led into M.F.'s bedroom and measured four feet four inches above the floor. The stain inside the dent measured four feet five and a half inches above the floor.⁸⁵

85 The drywall that contained this dent and stain was removed for further analysis.

On the west side of the hallway, there were three more dents in the wall, and red stains near one of these dents. The measurements from the floor to the centers of these dents ranged from three feet 10 and a half inches to four feet eight and a half inches.

There was a dent on the north wall of the kitchen that measured four feet eight inches from the floor. A wall hanging was in front of this dent.

There were two dents or holes in the interior wall of the laundry room, that measured four feet seven and eight inches from the floor.⁸⁶

86 Based on various medical examinations, M.F. was 47.5 inches tall in 2010 and 2011 (a half-inch short of four feet). She was 50 inches tall in 2012 (four feet two inches). In May 2014, M.F. was four feet six inches tall. At the time of the autopsy in October 2014, she was four feet seven inches tall. C.F. was five feet one inch tall in 2010.

Discovery of the Children's DNA

DNA profiles were obtained for the two children based on analysis of two buccal swabs taken from C.F.; and abdominal and heart blood collected during the autopsy of M.F.

C.F.'s DNA profile matched two bloodstains on exhibit No. 18, the drywall removed from the wall near the entrance to M.F.'s bedroom.

Exhibit No. 18 also contained a three-inch strand of brown hair stuck to the drywall. There was no root material to permit DNA analysis or determine the source of the hair. However, DNA from the hair matched M.F.'s mitochondrial DNA, that meant the hair was from M.F. or a person within the biological maternal line of M.F., which included her biological brother, C.F.

M.F.'s DNA profile was found on a red stain on the west side of the hallway wall.

M.F.'s DNA profile was found in the red stain on the wall near the light switch in M.F.'s bedroom.

Exhibit No. 33 was a swab from a red stain on the east side of the hallway wall, and it tested positive for blood. The DNA analysis was a mixture of at least two individuals, and possibly a third person. M.F. could not be eliminated as a major contributor of the mixture; C.F. was excluded as the major contributor. The minor contributor was a male, but there was insufficient information to match the minor contributor to a DNA profile.

Exhibit No. 19 was drywall removed from the south wall of the hall bathroom, that contained two dents and a stain. The stain did not test positive for blood. The DNA results contained mixtures from at least four contributors, and it was too complex to include or exclude any person.

Exhibit No. 20 was drywall removed from the north wall of the kitchen that contained the dent covered by the wall hanging. There were visible stains in this drywall, but they tested negative for blood. A swab from the dent in exhibit No. 20 contained a DNA mixture of at least four individuals; no conclusions were reached as to the contributors.⁸⁷

87 Exhibit No. 35 was "Swab M," from a red stain on the exterior of the door to the hallway bathroom. It tested negative for blood and was not tested for DNA.

Seizure of Cell Phones

Also, during the search, the officers seized a Samsung Galaxy S3 found in M.F.'s former bedroom and a Samsung Galaxy S6 Edge that was in the living room. Detective Robert Blehm of the Madera County Sheriff's Department testified about the data extracted from the two devices.

The Samsung Galaxy S3

As to the Galaxy S3, Detective Blehm testified that "the primary email account associated with the phone was Amy Chavoya at Gmail dot com. I also noticed in the text messaging portion of the phone, there was several conversations with a contact labeled 'Hubby.' The photograph for that contact appeared to me to be·[defendant] and her husband, Gerardo Flores, possibly on their wedding day."

This device contained "several photographs of a boy that I recognized to be [C.F.] In several of the photographs, he's standing, and he's depicted just looking at what would obviously be a camera, and there's blood running down from his nose." He was wearing a green shirt in some of the photos and a blue shirt in another photo. There were no dates on four of the photos, which typically meant the file had been deleted. One photo was dated July 8, 2014.⁸⁸

88 As explained in part III, ante, C.F. reviewed these photographs and testified defendant took the photographs and they showed injuries that defendant had inflicted on him.

The Galaxy S3 contained photographs of two circular dents in drywall and a piece of binder paper with the words" 'F[**]k my family.' "

There were text messages between the Galaxy S3 and a contact labeled "Hubby." There was a gap in the message timeline from August 8, 2014, to January 17, 2015, which indicated messages were deleted from the device. There were messages between the two devices before and after those dates.

There were messages between the Galaxy S3 and a contact labeled" 'Mom,'" the surviving messages appeared to be between defendant and her mother, and there were gaps in the messages from August 18, 2014, to April 14, 2015, consistent with the deletion of the messages.

The Galaxy S3 device sent a text message to "Hubby" on April 18, 2015, that said," 'If I get arrested for murder, I will,' in all capitals, 'kill myself and will need … you to be there for the kids, even [J.F.].'" There was no response, and this message had been deleted.⁸⁹

89 At the time of that message, C.F. and the other children had been removed from the custody of defendant and Gerardo, there was an ongoing CPS investigation, but the children had not disclosed any abuse and defendant had not been criminally charged.

The Samsung Galaxy S6 Edge

As to the Galaxy S6 Edge, Detective Blehm determined defendant was the primary user because the device's calendar "had numerous medical appointments scheduled for Amy Chavoya. It had a primary - or an email account linked to it that was Amy Chavoya at Comcast dot net and then in the photo gallery, there were numerous selfie-style images of Ms. Chavoya."

The Galaxy S6 Edge was used to visit a website on November 6, 2015, that was entitled," 'Murder versus Manslaughter, State of Mind,'" that explained the legal differences between the two offenses. This search was conducted nineteen days before defendant's arrest.

The Galaxy S6 Edge was also used to visit websites named" 'OpExposeCPS'" on November 14, 2015, with links to three different hashtags. At the time of the investigation, none of these links were operable.

The Postdeath "Quality Assurance Review"

After M.F. died, Ms. Prieto, a social worker with the department, was assigned to conduct a "a quality assurance review of this particular case in question" to make sure "we followed through with protocol, that we followed our policies and procedures, also to see if there's anything that comes out at you that maybe is inconsistent or maybe that is out of the norm." She believed that she worked on this review in 2015.

"I was asked to review this case by the director and my supervisor at the time. And they just wanted me to look at the allegations that were made during the time that they were in foster care and even during adoption, as well as the notes of the social workers. And they just wanted me to look at did social workers follow policy and procedure of meeting the children privately, going out monthly, updating, just health and education updates, things of that nature that are required by CPS to fulfill."

Ms. Prieto reviewed documents from the department, and M.F.'s school and medical records from various institutions. She found some inconsistencies in the documentation when "there was an injury in which what was told to CPS conflicted with what was told to the doctor on the same date of that injury…." She also found some documentation of fights between C.F. and M.F., and that C.F. was accused of inflicting injuries on M.F.

Ms. Prieto gave the review to Ms. Woodard, who was then the director of social services, but no longer with the department at the time of trial. The review showed that social workers met with the children "every single month" while they were in foster care, but the visits did not continue after they were adopted since the department no longer had jurisdiction.

Ms. Prieto determined any allegations that were made "were investigated according to policies and procedures. That's pretty much what the focus was. And with the death of [M.F.], they wanted just to see if there's anything that stood out in terms of what we could have done differently."

"[Defense counsel] … [S]o your assignment was basically, 'Hey, did we screw up'?

"A. To my understanding, yes.

"Q And your finding was, 'No, we didn't screw up.'

"A According to the policies and procedures, no."⁹⁰

90 Ms. Prieto never gave an exact date when she conducted this review. She appeared at trial in October 2019 and testified that she conducted the review five years earlier, perhaps immediately after M.F. died in October 2014. There are other indications this review might have occurred in 2015.

PART XV

THE PROSECUTION'S EXPERT WITNESS ABOUT CHILD ABUSE AND NEGLECT

Dr. Anthony Urquiza, a psychologist, was a professor in the pediatric department at UC Davis Medical Center, and director of the child abuse treatment program within that department and testified about issues that affect children in foster care.⁹¹

91 The court overruled defense objections and found Dr. Urquiza's testimony was admissible as expert opinion.

A child may be neglected because of not being properly fed, have food insecurity, and take food and hoard it, hide it, or take it from siblings or classmates at school, "because you don't know when the next meal is going to come." A foster parent would never be told to withhold food to discipline a child.

As for physical abuse, "[i]t doesn't usually happen that a parent, out of the blue, will just be violent and aggressive to their child; there's usually a precursor to the behavior." There is a "coercive cycle," where the child is defiant, the parent engages in parenting behavior that is not effective, the child is more defiant, and the parent then hits the child. "It goes back and forth, back and forth until hitting becomes a common occurrence."

Where there is a mix of biological and foster children in the home, the foster children may become the focus of the parents' anger and frustration because "[t]hey're not as good as the other kids, so foster parents get angry with them." The situation becomes awkward for the biological children, who are relieved they are not being mistreated, and will "stay out of the fray because bad things happen." The foster child realizes that someone is inflicting harm but also wants to be cared for, and it's "a common thing with kids in foster care where they get mistreated or hit or even abused, but they will tolerate that because it comes with some degree of connection to a parent or parent figure."

This type of "duality" also occurs when the foster child is visited by a social worker and doesn't disclose the abuse. "[T]here is a general idea that you want to keep quiet about problems in your household for kids in foster care. Because if you don't, the consequence is you go away, you move to another placement, which happens sometimes but it's almost always a bad thing, and so there's a tendency not to talk about it."

Dr. Urquiza testified that most children do not disclose abuse right away, significant delays in disclosure are common, and sometimes the child never discloses the abuse. The child fails to disclose as a "protective action" to avoid "any negative consequences" resulting from disclosure, such as being hit, harm to their siblings, or breaking up the family. "[T]he issue is I'm afraid and the result of that is I got to keep quiet…. And if I talk, something bad could happen, so I'm going to keep my mouth shut because I'm afraid."

If a child is interviewed about possible abuse, social workers usually meet them at school because they may be more willing to talk outside the presence of the parents. It was common for parents to claim the child was injured while fighting with a sibling or the teacher inflicted an injury at school. "[M]ost of the time I hear that … the child injured themselves, the child had a temper tantrum and banged their head or something, coming from a parent," and the child may even corroborate that story and claim the injury was self-inflicted because of fear of consequences from the abusive parent.

Children "are not usually very good advocates for themselves, they usually go along with it. And, so, that idea that they can advocate for themselves is an adult thing," and the abusive parent has the power in the relationship. If an abused child was already toilet trained but started bedwetting, it would be a "red flag" that the child was under some kind of danger or stress.

PART XVI

DEFENSE EVIDENCE

Defendant did not testify.

Dr. Super

Dr. Super was recalled by the defense and declined to definitively say that M.F. died from blood loss. He testified that "the bleeding is the serious part, but there's other things that could cause her to have the bleeding, result in her death faster than maybe just bleeding. I mean, these are multifactorial events." The internal bleeding would not have been instantaneous.

Defense counsel asked a hypothetical question based on the circumstances of M.F.'s death:

"Q Assuming you have a 12-year-old girl the size and weight of

[M.F.], and she is involved with a physical altercation with an individual, a boy a year older weighing between 100 and 110 pounds. And he pushes her down on her back and gets up on her abdomen, could that cause the type of injury we saw here?

"A Yes." (Italics added.)

C.F.

C.F. testified that he never pushed M.F. down, got on top of her stomach, or beat her. C.F. never talked to Gerardo about M.F.'s death. C.F. never told Gerardo or anyone else that he pushed down M.F. and got on top of her stomach, or that he was responsible for M.F.'s death. If someone said C.F. pushed M.F. and climbed on her stomach, or he claimed responsibility for M.F.'s death, that person would be lying. C.F. denied hurting M.F. the night she died, and he did not lie during his trial testimony.

Gerardo

Gerardo, defendant's husband, was recalled as a defense witness and further testified about this case. Gerardo said he once saw M.F. throw herself onto the wooden corner of the bed frame in her bedroom, but she was not injured.

Gerardo testified that on the night of M.F.'s death, Gerardo and defendant had dinner at Sal's restaurant with all the children, except for C.F., M.F., and J.F., who stayed home. J.F. was "babysitting" C.F. and M.F. Gerardo and defendant left dinner early because J.F. wanted to leave the house and hang out with friends. Gerardo and defendant ordered food to go for C.F. and M.F., went to Walmart, and then returned home.

Gerardo testified that he went into the master bedroom. About 15 to 20 minutes later, Gerardo heard M.F. say that she had urinated on herself. At some point, Gerardo left the master bedroom to stop a commotion between the children and their puppy. Gerardo never saw C.F. go into M.F.'s bedroom that night, but he heard defendant call C.F. into the bedroom, and heard C.F. crying.

C.F.'s Alleged Admission that He Harmed M.F.

Gerardo testified they had regular visitations with the children after they were removed from their home and placed in foster care. Gerardo testified that during a visit on September 17, 2015, C.F. allegedly told him that he pushed down M.F. and stood on her on the night she died. C.F. said he never told Gerardo this information because he was very scared and afraid of how Gerardo would react. Gerardo testified about his response to C.F.:

"I told [C.F.] that he didn't need to worry because the doctors didn't even know how [M.F.] died. The doctors said that she had a preexisting condition which led to her - led to her death. I told [C.F.] not to worry. I said, '[C.F.], we are going to have a family again. You don't need to worry. This is not your fault.' "

Gerardo testified that C.F. also mentioned "the Taser" during this conversation. C.F. was crying and shaking. Gerardo and C.F. never discussed this again.⁹²

92 In rebuttal, the prosecution called three social workers who monitored the visits between defendant, Gerardo, and the children when they were in foster care. Ms. Davila testified that there was "very little interaction" between Gerardo and C.F., "they seemed very distant, almost like strangers.," and C.F. was always sitting across the room or away from Gerardo. Ms. Sharp testified that defendant and Gerardo "were often very distant" with C.F., he did not interact with either of them, and they "interacted more with the other children than with [C.F.]." Defendant and Gerardo "often brought a lot of gifts, and [C.F.] usually would get less gifts than the other children. And so he was kind of quiet, kind of standoffish." Gerardo and C.F. "[d]idn't appear to be well-bonded. Didn't interact very much." Darlene Schwehr testified that defendant and Gerardo would greet C.F. and say hello, "but there wasn't a lot of attention paid to [C.F.] by the others." The other children, but not C.F., received special attention from them.

Gerardo testified that after C.F. shared this information with him, he only disclosed C.F.'s admission to his own attorney and not to defendant's attorney. Gerardo did not disclose this information to the district attorney's office, the department, or any law enforcement agency because he did not trust them. He said that the former district attorney "threatened to destroy my life," he did not regain custody of his children even though he complied with CPS's requirements, and they were "trying to ruin my life by putting my wife in prison."

Cross-examination

Gerardo testified that he only saw M.F. engage in self-harming behavior once, when she had a tantrum and threw herself on the wooden bed post. He thought this happened when she was between the ages of nine and 12 years old. Gerardo conceded that he failed to testify about this or any alleged tantrum episode when he previously testified at the jurisdictional hearing in the juvenile matter in September 2015, but explained he had "[l]ots of emotions" going on since "[t]his has severely affected my life. It affects my thinking. You think this is easy?"

Gerardo testified that defendant never told him what happened in M.F.'s bedroom on the night of her death.⁹³

93 Ms. Hunt testified that Gerardo was present when defendant gave a statement on October 24, 2014, about what happened in M.F.'s bedroom on the night of her death.

Gerardo's Employment Records

Gerardo testified that on Thursday, October 9, 2014, he worked overtime for the sheriff's department in Stockton, late into that night, and continuing into the early morning hours of Friday, October 10, 2014. He spent the rest of the morning of October

10, 2014, at the residence he used in Stockton, and drove back to Madera on Friday afternoon; M.F. died on Friday night.

After reviewing his employment records, Gerardo conceded the documents did not show that he worked overtime in Stockton on October 9-10, 2014, and he could not explain why that information was not there.⁹⁴

94 The prosecution called two witnesses from the San Joaquin County Sheriff's Department, who testified that there was no evidence in the personnel records to show that Gerardo worked overtime on October 9 and into October 10, 2014.

Gerardo was asked about his prior testimony at the jurisdictional hearing in the juvenile matter, when he was confronted with information from a veterinarian's office in Madera, that he dropped off the family dog at 8:11 a.m. on Friday, October 10, 2014. Gerardo could not remember giving that testimony.

"Q So did you lie in the jurisdictional hearing when you said that you dropped the dog off at the vet in the morning on October 10 of 2014?

"A No. I don't recall dropping off the dog. I might have picked up the English bulldog puppy, but it wasn't me. I was asleep. I didn't leave Stockton or my friend's house until around 11:00 a.m. [on Friday] ….

"Q So were you not truthful in your jurisdictional hearing when you testified that you dropped off the dog at 8:11 in the morning?

"A If that's what I said, then I obviously misspoke.

"Q So October 9th, according to your employment record, you were not working on October 9th either. If you look at the employment record, you were not working; correct?

"A According to this, I am not working.

"Q So what were you doing on October 9th?

"A I was working overtime in the jail.

"Q Then why isn't it on your employment record?

"A I don't know." (Italics added.)

Gerardo reviewed his testimony at the jurisdictional hearing in the juvenile matter and said that he "misspoke" when he stated that he had dropped off the dog at the veterinarian's office in Madera on the morning of October 10, 2014.

Gerardo's Prior Statements

Gerardo admitted that in a previous statement, when he discussed what happened in the hours before M.F.'s death, he failed to say the family also went to Walmart before they went home.

Gerardo again testified that when he was resting in the master bedroom that night, he heard screaming from the children in the living room, and also heard M.F. yell from her own bedroom for "a few seconds." When asked whether his current trial testimony was inconsistent with his prior statements, Gerardo testified that he could not remember what he previously said.

"I can tell you that there's so many emotions been going on. It's not fun being kicked in the mouth for the last five years. It's not fun at all. My life has been destroyed. My family has been destroyed. My children's innocence has been destroyed. You are going to have to excuse me for misstating a few words."

The prosecutor again asked Gerardo what he heard from M.F.'s bedroom. Gerardo testified that he heard M.F. "screaming" and crying" because "she was being scolded." He ignored it and did not go into M.F.'s bedroom to check on her.

"To the best of my recollection, I heard - [M.F.] scream once and cry, and then I went to the living room to hear the other commotion that was going on with the puppy."

The prosecutor reminded Gerardo that he just testified that he heard M.F. say that she had urinated, and that happened about 15 minutes after he arrived home. The prosecutor asked Gerardo to review his testimony at the prior juvenile proceeding, where he stated that he heard M.F. make that statement within five minutes of when he arrived home. The prosecutor asked Gerardo about the discrepancy.

"Since that time, I've had numerous life-altering factors. You can't even imagine the stress I'm under. And on that date [when M.F. died], I had the worst migraine headache that I ever experienced in my life, which is why I was laying face down. It started somewhere on the way home on Avenue 12. We got into Madera Ranchos … entered the house, gave the kids the food, and I went straight down the hallway to the master bedroom. I laid face down."

Gerardo testified that when he got home, he "handed" the food to C.F. and M.F. and then went into the master bedroom. Gerardo conceded that he previously testified in the juvenile matter that he did not see C.F. and M.F. when he got home and went straight into the master bedroom. Gerardo also conceded that he previously testified that he placed the takeout food on the kitchen counter.

When asked to explain these discrepancies, Gerardo testified that he had "a severe migraine headache" and did not "recall exactly" seeing the children, but he knew C.F. and M.F. were home, and J.F. had already left. When asked which version actually happened, Gerardo replied: "Probably the one where I had [the food] on the kitchen counter."

Gerardo was asked if the children ever fought when he was gone, and if they told him about it when he later got home. Gerardo testified he knew about incidents that occurred when he was at home, and "[t]he majority of time when I was not home, I knew well after the fact." Such conflicts did not usually happen when he was at home. When he was home, "I would cuss, and I would scream, and I would yell. It was wrong, yes, but they … were in line. They didn't … cross Dad. That's for sure."

Gerardo testified that on the night of M.F.'s death, no one told him that C.F. was hurting anybody. Gerardo conceded that during the entire time C.F. and M.F. lived with them, M.F. never came to him and said C.F. was hitting her. After reviewing his testimony in the juvenile matter, Gerardo conceded that he testified differently at that hearing and claimed M.F. told him that C.F. hit her. The prosecutor asked which version was true:

"I'm going to have to go with the latter, because [defendant] was home 99.99 percent of the time. I was always gone for long periods of time working, supporting my family, and I always heard everything through [defendant]. The kids fought, they told [defendant], I heard about it. If it happened when I was present, I dealt with it. A majority of the time, it was well after the fact, and it happened."

Gerardo's Failure to Previously Disclose C.F.'s Alleged Admissions

The prosecutor also cross-examined Gerardo about whether he had a legal duty, as a deputy sheriff, to disclose C.F.'s alleged admissions that he harmed M.F. on the night she died.

"Q So you were supposed to - are you supposed to tell somebody when you hear a child abuse report?

"A Yes.

"Q And who are you supposed to tell?

"A Law enforcement.

"Q And why are you supposed to tell?

"A Because that is the correct thing to do.

"Q And is there any other reason other than it's the correct thing to do?

"A Morally, ethically, it's the right thing to do.

"Q What about legally? Aren't you a mandated reporter?

"A Yes.

"Q So as a peace officer in the state of California, you are mandated to report reports of child abuse; correct?

"A Correct.

"Q And you never did in regards to what [C.F.] told you; correct?

"A No, I did. I sure did.

"Q You did not tell law enforcement, did you?

"A No. I told my attorney.

"Q Right. But you are supposed to report to law enforcement; correct?

"A Yes." (Italics added.)

Also on cross-examination, Gerardo again testified that when C.F. made his alleged admissions during the September 2015 visitation, he told C.F. that it was okay because the doctors did not know how she died. Gerardo conceded that at the time that C.F. allegedly made these admissions, Gerardo had previously been informed by law enforcement about the results of M.F.'s autopsy, and he claimed her" 'organs were so calcified'" that any simple movement would have resulted in internal injuries. Gerardo also conceded he was present when a doctor testified in the juvenile matter about M.F.'s cause of death, but he could not remember what was said.

Gerardo believed M.F. died because she had a tantrum and threw herself on the bed, based on what C.F. said happened in the bedroom. Gerardo admitted that he had also failed to previously disclose C.F.'s alleged account of what happened in the bedroom, but he could not remember when C.F. gave that information to him. Gerardo conceded that C.F.'s account was different from what defendant told Ms. Hunt in October 2014, that she did not see M.F. harm herself that night.

Gerardo testified he formed a negative opinion of law enforcement and the department because defendant was "falsely arrested." Gerardo admitted that at the time of defendant's arrest in November 2015, he was in possession of C.F.'s alleged "exculpatory information" but he did not say anything. His motive was "to protect my family, to protect [C.F.]. My daughter had just died. Why am I going to put my son through that? I'm not."

Gerardo was aware the district attorney of Madera County at the time of defendant's arrest was not reelected. Even after that, Gerardo never approached the district attorney's office to share C.F.'s alleged admission, and he continued to have a bias against Madera County because defendant was "still in custody," and the current district attorney was "carrying out [her predecessor's] narrative." Gerardo was upset the prior district attorney went on television and "threatened my life," because a law enforcement officer would not be safe in prison.⁹⁵

95 The defense introduced a videotape of a television news report from December 16, 2015, that defendant would be going to trial on the charges of murder and torture. In the broadcast, then-District Attorney David Linn stated: "I am very ecstatic. I feel that justice is going to finally come to this child. Unfortunately, a little too late but we are going to make sure that this never occurs to another child and we are going to take this case as far as we can." The reporter stated that Mr. Linn was "seriously considering the death penalty and he implied [defendant's] husband may also be arrested soon. We have confirmed that Gerardo Flores is a San Joaquin County Deputy who is currently on administrative leave." Mr. Linn then stated: "I think he is going to have a new residence within the next two weeks, located here in Madera County."

The Visitation Photographs

In surrebuttal, the defense introduced photographs that Gerardo took during visitations with the children while they were in foster care in 2015. Gerardo testified that C.F. looked "[v]ery, very happy" in these photographs.

Ms. Schwehr testified that while C.F. was smiling in the pictures, there was an emotional connection issue, and C.F. "was always sort of put off a little bit…. He was always distant. Either they weren't paying attention to him or he was left out."

Defense Expert

Dr. James Crawford-Jakubiak testified as the defense expert. He was a physician at UCSF Children's Hospital in Oakland and the medical director for the Child Protection Center at Children's Hospital in Oakland. He did not know M.F. had been removed from school and was being homeschooled at the time of her death. He did not review C.F.'s records and did not know anything about his injuries.

Dr. Crawford-Jakubiak testified that M.F. died from blunt trauma to the soft part of her belly, the force so great that it tore blood vessels in her mesentery, and it resulted in internal bleeding into her abdomen, followed by unconsciousness and death. M.F. had other blunt impact injuries and fresh injuries under her scalp. There was also evidence of "old trauma in her belly," with fibrosis that meant she was previously injured in the same area that later resulted in her death. There were about two dozen small oval scars on her body that were weird and unusual, he did not know the source of these scars, but they did not contribute to her death.

Dr. Crawford-Jakubiak testified to his opinion that M.F.'s fatal injuries were not self-inflicted, they were inflicted by someone else, and it happened within minutes to hours before she lost consciousness.

In response to a defense hypothetical question, Dr. Crawford-Jakubiak testified that blunt force trauma could have been inflicted to the belly area of a girl who was M.F.'s same height and weight, if she was pushed down onto her back by an adult, or by a male who was about a year older and weighed about 100 pounds, and then that male got on her stomach. It could have been "a punch or a stomp."

The existence of M.F.'s old injuries showed "this wasn't a one-time something…. The belly scarring and fibrosis … speaks to a pretty serious injury that happened at some point in the past beyond something that most people experience." The prior injury would have made a child walk slowly and bent over and appear to be in pain for minutes to days afterwards.

Dr. Crawford-Jakubiak testified that it was "profoundly unusual" for a child to have "as many traumatic injuries as [M.F.] had in the handful of years prior to her death." It appeared that M.F.'s environment "was hurting her much more than a typical child in the handful of years prior to her death." M.F. died from the "actions of another party." Dr. Crawford-Jakubiak examined photographs of the small scars on C.F.'s body and testified that it was "concerning" that another child who lived in the same house had the same type of strange scars on her body.

Dr. Crawford-Jakubiak further testified that some caregivers use children to get narcotics for themselves and taking a child to multiple doctors can be an indication of a caregiver using the child as a proxy to get medication not needed by that child. If a child is starved or has food insecurity, the child does not develop a healthy relationship with food, may not eat in a normal way, and may steal or hide food.

Dr. Crawford-Jakubiak testified that defendant's statement that M.F. was throwing herself onto furniture did not account for her fatal injuries. Defendant's multiple inconsistent statements about the cause of M.F.'s fatal injuries raised concerns about potential child abuse.

PROCEDURAL BACKGROUND

On August 12, 2019, a first amended information was filed that charged defendant with:

Count 1: first degree murder of M.F. on October 10, 2014 (§ 187, subd. (a));⁹⁶

96 Defendant was initially charged with first degree murder with a torture-murder special circumstance (§ 190.2, subd. (a)(18)). After the preliminary hearing in December 2015, defendant was held to answer on all charges, including the special circumstance, and the district attorney's office stated it was considering the death penalty. The special circumstance was again alleged in the information. As of January 2017, the district attorney was no longer seeking the death penalty, but the special circumstance was still alleged. When the first amended information was filed, defendant was again charged with murder, but the torture-murder special circumstance was no longer alleged.

Count 2: torture of M.F. (§ 206), that defendant unlawfully and with intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion and for a sadistic purpose, inflicted great bodily injury on M.F. by committing the following acts on or between July 1, 2010, and October 10, 2014: holding a taser on her skin, forcing her to stand facing a wall for several hours at a time, striking her head against walls leaving depressions in the walls, forcing her to run around a tree for hours, striking her body with objects or hands, forcing her to take very hot showers, and depriving her of food;

Count 3: torture of C.F. on or between July 1, 2010, and March 26, 2015, by committing the same acts as alleged as to M.F. in count 2, plus the additional allegations that defendant forced C.F. to cut himself with a knife and ingest soap pods or soapy water;

Counts 4 and 5: felony infliction of unjustifiable physical pain and mental suffering under circumstances likely to cause great bodily harm or death on M.F., on or between July 1, 2010, and October 14, 2014 (§ 273a, subd. (a)); and on C.F., on or between July 1, 2010, and March 26, 2015; with great bodily injury allegations as to counts 4 and 5 (§ 12022.95, § 12022.7, subd. (a)).⁹⁷

97 After the parties rested, the court granted the People's motion to amend the information by interlineation to correct the time periods alleged as to counts 4 and 5, to correspond to the dates alleged in counts 2 and 3.

Trial

On September 3, 2019, defendant's trial began with jury selection. On October 1, 2019, the parties gave their opening statements, and the prosecution began the case-in-chief.

Verdict

On January 29, 2020, the jury began deliberations. As will be explained below, the jury was instructed in count 1 with first degree felony murder committed during defendant's perpetration of torture in violation of section 206.

On February 11, 2020, the jury found defendant guilty in count 1 of first degree murder, and made the special finding that defendant was the actual killer of M.F. The jury also found defendant guilty of counts 2 and 3, torture; and counts 4 and 5, felony child abuse, with the great bodily injury allegations found true.

Sentence

On June 26, 2020, the trial court held the sentencing hearing, and stated it had read the probation report and letters from C.F., Ms. McCully, and Ms. Rosa.⁹⁸

98 C.F. wrote defendant had him "under so much control physically and mentally for so many years," that he accepted she could kill him if she wanted to and "get away with it. She had everyone so manipulated that she probably never thought that she was going to get caught." C.F. wondered whether "it was the pills or the alcohol," but refused to give her any excuses because she was "just a cold blooded murderer." Ms. McCully wrote defendant's decision to pull M.F. out of public school in June 2014, "after being 'accidentally' notified by CPS that I had reported her for child abuse began the hardest year of my career," and the school staff worried about "who would watch over" M.F. since she had so many injuries that spring. M.F.'s death was "devastating" and "changed my life forever." Ms. McCully wrote that sitting through the trial and hearing "the gruesome details of the torture [M.F.] was too terrified to tell us about was excruciating…. I will carry the injustice of her death with me for the rest of my life, which includes the burden of wishing I could have saved her somehow." Ms. Rosa, the class aide, wrote that she was concerned about C.F.'s future, hoped the verdict would begin his healing and recovery, and "knowing that he did not warrant or deserve the abuse, trauma, pain, and torture he survived will hopefully bring some peace…."

The court noted defendant's parental rights had been terminated as to her other children.

The court sentenced defendant to 25 years to life for count 1, first degree felony murder, plus two consecutive terms of life in prison with the possibility of parole for counts 2 and 3, torture of M.F. and C.F. (§ 206.1). The court imposed determinate terms for counts 4 and 5 and the attached enhancements and stayed the terms pursuant to section 654.

The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)), suspended the parole revocation fine in the same amount (§ 1202.45), and retained jurisdiction for victim restitution. The court also imposed total fines of $38,350, and a felony presentence report fee of $750 (§1203.1b).

Also on June 26, 2020, defendant filed a notice of appeal.⁹⁹

99 At the June 26, 2020, sentencing hearing, in addition to the life counts, the court imposed an aggregate determinate term of 18 years for counts 4 and 5, and the enhancements attached to those counts, and stayed the entirety of that determinate term pursuant to section 654. In doing so, as to count 4, the court erroneously imposed a three-year enhancement pursuant to section 12022.7, subdivision (a). As to count 4, however, the enhancement pleaded and that the jury found true was pursuant to section 12022.95 and carried a four-year term. On July 13, 2020, the trial court recalled and corrected defendant's sentence because of this error. It again imposed 25 years to life for count 1, plus two consecutive life terms with the possibility of parole for counts 2 and 3. As to counts 4 and 5, and the enhancements attached to those counts, the court imposed an aggregate determinate term of 19 years and stayed the entirety of that determinate term pursuant to section 654. As part of that aggregate sentence, it corrected the enhancement attached to count 4, and correctly imposed a four-year term pursuant to section 12022.95. On July 28, 2020, an amended abstract of judgment was filed. The July 13, 2020, minute order, however, repeats the original error and states that as to count 4, the court imposed a three-year enhancement pursuant to section 12022.7. The abstract of judgment filed on July 28, 2020, erroneously states that as to count 4, the court imposed a three-year enhancement pursuant to section 12022.95, and that defendant's aggregate determinate term, that was stayed, was 18 years. We will order amendment of both the minute order and abstract of judgment to correctly state that as to the enhancement attached to count 4, the court imposed a four-year term pursuant to section 12022.95, which was stayed, defendant's aggregate determinate term for counts 4 and 5 and the attached enhancements was 19 years, and the entirety of that determinate term was stayed.

DISCUSSION

I. Substantial Evidence

Defendant contends her convictions in count 1, first degree felony murder of M.F. committed in the perpetration of torture in violation of section 206; and counts 2 and 3, torture of M.F. and C.F. in violation of section 206, must be reversed for insufficient evidence of the elements required to prove torture.

"In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence - that is, evidence that is reasonable, credible, and of solid value - supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence." (People v. Jennings (2010) 50 Cal.4th 616, 638-639.) "[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)

"The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.] We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]' [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.]' [Citation.] Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)

Reversal is "unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction.]'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)

II. Felony Murder and Section 206

We begin with the elements of count 1, first degree felony murder of M.F., and counts 2 and 3, torture of M.F. and C.F, with all counts based on violations of section 206.

A. First Degree Felony Murder

"Murder is defined as 'the unlawful killing of a human being … with malice aforethought.' (§ 187, subd. (a).) The malice required by section 187 may be express or implied. It is express when there is a manifest intent to kill. [Citations.] It is implied if someone kills with' "no considerable provocation … or when the circumstances attending the killing show an abandoned and malignant heart." '" (People v. Vang (2022) 82 Cal.App.5th 64, 81.)

"A conviction of murder in the first degree can be based on malice with premeditation and deliberation or on first degree felony murder." (People v. Campbell (2015) 233 Cal.App.4th 148, 161.)

"The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state. The rule has two applications: first degree felony murder and second degree felony murder." (People v. Chun (2009) 45 Cal.4th 1172, 1182, superseded by statute as stated in People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-249.)

"[T]he felony-murder rule provides an exception to the malice requirement for murder. [Citation.] The rule imputes the requisite malice to those who commit a homicide during the perpetration of a felony inherently dangerous to human life. [Citation.] The requisite mental state is simply the specific intent to commit the underlying felony. [Citation.] The purpose of the rule is to deter criminals from killing by holding them strictly responsible for deaths that occur during the perpetration (or attempted perpetration) of an inherently dangerous felony …, and regardless of whether the killing was intentional, negligent, or accidental." (People v. Vang, supra, 82 Cal.App.5th at p. 81, italics added.)¹⁰⁰

100 On January 1, 2019, prior to defendant's trial, the felony-murder rule as stated in section 189 was amended" 'to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'" (People v. Lewis (2021) 11 Cal.5th 952, 967; People v. Martinez (2019) 31 Cal.App.5th 719, 723; People v. Vang, supra, 82 Cal.App.5th at p. 83.) As a result, section 189 states in relevant part that "[a] participant in the perpetration or attempted perpetration" of certain enumerated felonies "in which a death occurs is liable for murder only if one of the following is proven: [¶] ... The person was the actual killer." (§ 189, subd. (e)(1), italics added.) "[T]he term 'actual killer' as used in the revised felony-murder rule of section 189, subdivision (e)(1) refers to someone who personally killed the victim and is not necessarily the same as a person who 'caused' the victim's death." (People v. Lopez (2022) 78 Cal.App.5th 1, 4.) The 2019 amendments to section 189 and the felony-murder rule are not relevant to defendant's conviction because the jury herein made a special finding that defendant was guilty of count 1, first degree murder, as the actual killer.

On appeal, defendant asserts that since the amended information only alleged a violation of section 187, subdivision (a) in count 1, she was charged with "simply malice murder which is presumptively second-degree murder," and count 1 "did not allege premeditation nor first-degree felony murder…."

The amended information alleged defendant committed count 1, first degree murder of M.F. on October 10, 2014, in violation of section 187, subdivision (a). The jury was instructed that defendant was being prosecuted for murder under two theories: malice aforethought and felony murder, and, that if the jury decided defendant committed murder, she was guilty of second degree murder "unless the People have proved beyond a reasonable doubt that it is murder … of the first degree" as defined in the instruction on first degree felony murder. The jury was further instructed that defendant was charged with first degree murder under the felony-murder rule if he committed the murder during the commission of torture in violation of section 206.¹⁰¹

101 The jury was instructed with CALCRIM No. 540A on the felony-murder theory of first degree murder: "The defendant is charged in Count One with murder, under a theory of felony murder. [¶] To prove that the defendant is guilty of first-degree murder under this theory, the People must prove that, one, the defendant committed torture; two, the defendant intended to commit torture; and, three, while committing torture, the defendant caused the death of another person. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent. [¶] To decide whether the defendant committed torture, please refer to the separate instructions that I will give you on that crime. You must apply those instructions when you decide whether the People have proved first-degree murder under a felony of felony-murder. [¶] A defendant must have intended to commit the felony of torture before or at the time that she caused the death. It is not required that the person die immediately as long as the act causing death occurred while the defendant was committing the felony. It is not required that the person killed be the victim or intended victim of the felony." (Italics added.)

"[A]n accusatory pleading charging malice murder supports conviction of first degree murder on a felony-murder theory. Malice murder and felony murder are two forms of the single statutory offense of murder. Thus, a charge of murder not specifying the degree is sufficient to charge murder in any degree. The information also need not specify the theory of murder on which the prosecution relies at trial." (People v. Contreras (2013) 58 Cal.4th 123, 147, italics added.) Contrary to defendant's assertion, "the section 187 charge brought here supported a murder conviction in any degree, including first degree felony murder." (Id. at p. 148.)

B. Section 206 - Torture

As relevant to counts 1, 2, and 3, section 206 defines the statutory offense of torture and states:

"Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain."

The commission of torture in violation of section 206 has two elements: "(1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (People v. Baker, supra, 98 Cal.App.4th at p. 1223.)¹⁰² As will be further discussed in parts III and V, post, "the plain language of section 206 does not require willful, deliberate, and premeditated intent." (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1206 (Aguilar).)

102 The jury received CALCRIM No. 810 on the elements of torture in violation of section 206; this was the only instruction that defined the offense of torture. "The defendant is charged in Counts 2 and 3 with torture in violation of … section 206. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant inflicted great bodily injury on someone else; and two, when inflicting the injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. It is not required that a victim actually suffer pain. [¶] Someone acts with a sadistic purpose if she intends to inflict pain on someone else in order to experience pleasure herself."

A conviction for torture in violation of section 206 is punishable by life in prison with the possibility of parole. (§ 206.1.) "[T]he purpose of additional punishment for conduct amounting to torture is not based on the victim experiencing extreme pain or suffering or the presence of extreme violence, since extreme violence may exist in circumstances involving other conduct such as an explosion of violence. [Citation.] Rather, the Supreme Court has explained the additional punishment is imposed because the defendant's intent to inflict pain for a sadistic purpose is deserving of additional punishment. [Citations.] The focus must be on the defendant's intent to inflict pain for revenge, extortion, persuasion or for any sadistic purpose rather than on the severity of the injuries or the duration of the attack." (People v. Pre (2004) 117 Cal.App.4th 413, 424 (Pre).)

III. Defendant's Arguments About Felony Murder, Section 206, and Intent

Before we address defendant's contentions about whether her convictions are supported by substantial evidence, we must review defendant's appellate arguments that to prove a violation of section 206, there must be evidence of "torturous intent and purpose," and that intent must be an "especially heinous state of mind."

Defendant asserts section 206 must be "understood in terms of the preexisting crime of torture murder" that was stated in the first part of section 189 before the enactment of section 206. Defendant contends section 206's definition of torture "is based on torture murder," and the specific intent required for torture murder should be the same as the intent required for violating section 206.

As will be explained, defendant's arguments are based upon cases that interpreted the elements of first degree premeditated "torture murder" as stated in the first part of section 189. The extension of these elements to the statutory offense of torture in violation of section 206 have been rejected.

A. Section 189

Section 189 states in relevant part:

"(a) All murder that is perpetrated by means of … torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206 , …, is murder of the first degree.

"(b) All other kinds of murders are of the second degree." (Italics added.)

B. "Torture Murder" Before the Enactment of Section 206

The first part of section 189, subdivision (a), as quoted above, defines first degree murder as "[a]ll murder that is perpetrated by means of a destructive device or explosive, … torture, or by any other kind of willful, deliberate, and premeditated killing…." (Italics added; People v. Massie (2006) 142 Cal.App.4th 365, 371-372 (Massie).) "[T]orture murder is listed under section 189 as a distinct type of first degree murder," independent from felony murder based on the commission of torture in violation of section 206. (People v. D'Arcy (2010) 48 Cal.4th 257, 295; People v. Pearson (2012) 53 Cal.4th 306, 319, fn. 3.)

Section 189 "does not itself define the crime of murder by torture." (Aguilar, supra, 58 Cal.App.4th at p. 1204.) The elements of torture murder have been defined as" '(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. D'Arcy, supra, 48 Cal.4th at p. 293.)

"[M]urder by means of torture under section 189 is murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain" (People v. Steger (1976) 16 Cal.3d 539, 546) and requires "the intent to inflict extreme and prolonged pain be the result of calculated deliberation" (Massie, supra, 142 Cal.App.4th at pp. 371-372).¹⁰³

103 Section 190.2 separately defines the torture-murder special circumstance, that the "murder was intentional and involved the infliction of torture." (§ 190.2, subd. (a)(18); People v. Pearson, supra, 53 Cal.4th at p. 322.)" 'To prove a torture-murder special circumstance, the prosecution must show 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. Hajek and Vo (2014) 58 Cal.4th 1144, 1187, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) The torture-murder special circumstance was originally alleged in the complaint and information filed in this case, and subsequently omitted in the amended information.

C. Torture as defined by Section 206

"Proposition 115, adopted by the voters in 1990, created the relatively new crime of torture" in violation of section 206. (People v. Hale (1999) 75 Cal.App.4th 94, 107.) "The torture offense contained in section 206 was adopted by the voters to 'fill[] a gap in existing law dealing with extremely violent and callous criminal conduct.' [Citation.] '[T]orture as defined in section 206 focuses on the mental state of the perpetrator and not the actual pain inflicted.'" (Pre, supra, 117 Cal.App.4th at pp. 419-420.)

In 1999, a violation of section 206 was added to section 189's list of enumerated statutory felonies for first degree felony murder. (People v. Pearson, supra, 53 Cal.4th at p. 319.) The first part of section 189, subdivision (a) continues to address premeditated torture murder, as quoted above. The second part of subdivision (a) separately defines first degree felony murder to include all murder "committed in the perpetration of, or attempt to perpetrate, … any act punishable under Section 206 …." (Italics added.)

"Whatever the requirements for torture murder under section 189 might be, section 206 plainly sets forth its requirements for torture." (People v. Vital (1996) 45 Cal.App.4th 441, 444.) As relevant to defendant's arguments herein, "[t]he intent required for torture as defined in section 206 is not identical to the intent required for torture murder under section 189 . [Citation.] Torture under section 206 does not require premeditation and deliberation, and it does not require an intent to inflict prolonged pain." (Massie, supra, 142 Cal.App.4th at p. 372, italics added; Pre, supra, 117 Cal.App.4th at p. 420.)

"Thus, we are not bound to construe the intent requirement under section 206 identically to section 189," and must" 'presume that had premeditation been intended to be an element of the crime of torture under section 206, the section would have said so.'" (Aguilar, supra, 58 Cal.App.4th at p. 1206.)

D. Analysis

Defendant notes that section 206 was enacted in response to the particularly heinous facts in People v. Singleton (1980) 112 Cal.App.3d 418, where the defendant kidnapped and sexually abused a 15-year-old girl, chopped off her hands with a hatchet, and abandoned her; she survived, and the defendant was convicted of attempted murder. (Id. at pp. 420-422.)

Defendant asserts that section 206's definition of torture must be "strictly construed" to "warrant the increased punishment" of life imprisonment, as intended in light of the particularly heinous facts in Singleton, and to distinguish "the crime of torture from conduct involving less culpable levels of criminal intent, just as a strict construction of torture, for purposes of torture murder, is necessary to distinguish that crime from lesser degrees of murder."

Defendant asserts the facts of the instant case are not as heinous as Singleton, the charges against her amounted to a "child abuse case charged as torture," the prosecutor "conflated torture with child abuse," and the injuries and abuse inflicted upon C.F. and M.F. "were administered as a result of [defendant's] anger and rage," and insufficient to establish her "torturous intent" and the type of "heinous" offenses required by section 206.

The same assertions about premeditation, specific intent, and the level of heinousness required to violate section 206 were discussed in the dissent in Pre, supra, 117 Cal.App.4th 413:

"Notwithstanding the original intent underlying the adoption of … section 206 [by the voters in approving Proposition 115 in 1990], the application of the statute has expanded, by judicial accretion, to any assault in which the victim suffers 'great bodily injury' where the jury infers an intent to inflict cruel and extreme pain, regardless of whether the assailant's conduct was extremely violent and callous. [Citation.] Under such an application of the statute, virtually any aggravated assault proscribed by … section 245 that results in great bodily injury may qualify as torture under … section 206; if the jury infers the requisite intent from the defendant's conduct, the defendant will be subject to a life sentence rather than a two-to four-year sentence applicable to an aggravated assault conviction [citation], even if the crime was not particularly heinous and the injuries were not particularly substantial. This is not what the voters intended in passing Proposition 115." (Id. at p. 426, italics added (conc. & dis. opn. of McIntyre, J.).)¹⁰⁴ We agree with the majority opinion in Pre that such arguments are meritless: "[The] characterization [in the dissent] disregards the fact that for a torture conviction the jury must not only find the defendant inflicted great bodily injury but also that the defendant intended to do so for the purpose of revenge, extortion, persuasion, or some other sadistic purpose. This additional intent requirement distinguishes the offense of torture from an aggravated assault and is clearly a matter for a jury to determine." (Pre, supra, 117 Cal.App.4th at p. 423, italics added.)

104 Defendant also relies on the dissent in People v. Jung (1999) 71 Cal.App.4th 1036, that proposed Singleton should be the standard to determine whether torture was committed in violation of section 206 because the statute "was not enacted to redefine the legal definition of torture; that definition has remained constant throughout the years. [Citation.] Rather, the crime of torture was codified to ensure that conduct amounting to torture be punished by no less than life in prison, regardless of whether the victim happens to survive, as Lawrence Singleton's victim did. Appellant's conviction for torture does not satisfy the public will by ensuring that 'crimes such as Singleton's receive a minimum punishment of life imprisonment.' In no way can appellants' crimes compare to the brutality and depravity of Lawrence Singleton's." (People v. Jung, supra, 71 Cal.App.4th at pp. 1048-1049 (dis. opn. of Armstrong, J.).)

A torture murder conviction under section 189 "expressly requires" willful, deliberate, and premeditated intent "because it is a kind of first degree murder," whereas premeditation is not required when torture in violation of section 206 is alleged as the predicate felony for first degree felony murder. (Aguilar, supra, 58 Cal.App.4th at p. 1206; ibid.)

We thus reject defendant's interpretation of section 206. "That other victims of torture may have suffered more than the victim in this case sheds no light on the sufficiency of the evidence of [the defendant's] intent to cause [the victim] severe pain and suffering" in a prosecution under section 206. (People v. Jung, supra, 71 Cal.App.4th at p. 1043.)

IV. Section 206 - Substantial Evidence of Great Bodily Injury

The first statutory element required to prove the violations of section 206 in each of counts 1, 2, and 3 is that defendant inflicted great bodily injury upon the victims. (People v. Baker, supra, 98 Cal.App.4th at p. 1223.)

A. Evidence of Great Bodily Injury

As used in section 206, "great bodily injury" is defined in section 12022.7, subdivision (f) as "a significant or substantial physical injury."

"Section 206 does not require permanent, disabling, or disfiguring injuries; '[s]ection 206 only requires "great bodily injury as defined in Section 12022.7".… "Abrasions, lacerations and bruising can constitute great bodily injury."' [Citations.] Further, section 206 expressly provides that the offense 'does not require any proof that the victim suffered pain.'" (Pre, supra, 117 Cal.App.4th at p. 420.)

"Torture … does not require a specific modality…. There is no question there are cases in which the acts of torture [are] more gruesome. However, '[w]hen we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts.'" (People v. Odom (2016) 244 Cal.App.4th 237, 248.)

Moreover, "[t]he statutory definition of torture does not require a direct use of touching, physical force, or violence, but instead is satisfied if the defendant, directly or indirectly, inflicts great bodily injury on the victim. Thus a defendant may commit torture without necessarily committing a battery." (People v. Lewis (2004) 120 Cal.App.4th 882, 888.)

In cases that address section 12022.7 and great bodily injury, the phrase is defined as" 'bodily injury which is significant or substantial, not insignificant, trivial or moderate.' [Citation.] '[T]he injury need not be so grave as to cause the victim" 'permanent,' 'prolonged,' or 'protracted'" bodily damage.'" (People v. Quinonez (2020) 46 Cal.App.5th 457, 464.)

" 'Proof that a victim's bodily injury is "great" - that is, significant or substantial within the meaning of section 12022.7 - is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury.' [Citation.] While 'any medical treatment obtained by the victim is relevant to determining the existence of "great bodily injury" [citation], the statutory definition and relevant … instruction … do not require a showing of necessity of medical treatment. Nor are we aware of any case authority imposing such a requirement.'" (People v. Quinonez, supra, 46 Cal.App.5th at p. 464.)

Substantial evidence of great bodily injury has been held to include a split lip, cut under the eye, and broken teeth (People v. Hale, supra, 75 Cal.App.4th at p. 108); multiple contusions to the victim's after being "caned" by her mother, that were painful and left visible swelling and severe discoloration (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836); multiple abrasions and lacerations to the victim's back, and bruising of the eye and cheek (People v. Sanchez (1982) 131 Cal.App.3d 718, 732-733, disapproved on other grounds in People v. Escobar (1992) 3 Cal.4th 740, 755); prolonged physical assaults by defendant's fists and feet (People v. Odom, supra, 244 Cal.App.4th at p. 248); and multiple physical and sexual assaults, and repetitive use of a Taser (People v. Mejia (2017) 9 Cal.App.5th 1036, 1039-1049, 1043-1044).

"[D]etermining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.]' "A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description."' [Citations.] Where to draw that line is for the jury to decide." (People v. Cross (2008) 45 Cal.4th 58, 64.)

B. Analysis - Great Bodily Injury for Count 1, First Degree Murder of M.F.

In count 1, defendant was convicted of first degree felony murder of M.F. based on the commission of torture in violation of section 206 on October 10, 2014. The requisite mental state for first degree felony murder "is simply the specific intent to commit the underlying felony." (People v. Vang, supra, 82 Cal.App.5th at p. 81.)

There is substantial evidence that defendant had the specific intent to commit torture as to count 1, based on the first statutory element of inflicting the fatal great bodily injuries upon M.F. within the meaning of sections 206 and 12022.7.

L.F. testified that on the night M.F. died, she saw M.F. lying face-down on the bedroom floor, defendant was standing above M.F., one foot was on M.F.'s back, and she was "punishing" M.F. with a belt. Defendant was "whacking [M.F.] with it on her back and on the back of her neck," and did so multiple times.

C.F. testified that when defendant ordered him into M.F.'s bedroom, M.F. was lying on her back and face-up on the floor, her arms were at her sides, and defendant was sitting on top of the girl and straddling her stomach with her legs. Defendant ordered C.F. to lie on the floor next to M.F., and repeatedly hit him with a metal rod. C.F. testified that M.F. started to become unconscious and urinated on herself.

Dr. Super, the pathologist, testified that M.F.'s cause of death was "hemoperitoneum - which means blood in the abdomen - due to mesenteric vascular injury, due to blunt-impact abdominal injury." There was evidence of three tears where the intestines were attached to the back of the abdomen. The area surrounding the mesentery root was bloody, the smaller "mesenteric vessels have been torn," and they were "torn from impact" that resulted in internal bleeding.

Dr. Berkowitz, the prosecution's expert, testified the amount of blood in M.F.'s abdomen amounted to 30 percent of her body's total volume. M.F. went into shock, the process of internal bleeding was quick because the blood "was just pouring out, so rapidly and accumulating," and "death occurred within not that big of a time interval from the time that the bleeding started till she went into a cardiac arrest." As M.F. was internally bleeding to death, she would have felt dizzy and like she was going to pass out. She would have lost control of her body and urinating on herself would have been part of that process, consistent with what C.F. described.

C. Analysis - Great Bodily Injury for Count 2, Torture of M.F.

As to count 2, defendant's separate conviction for torture of M.F., there is also overwhelming evidence that defendant inflicted nonfatal great bodily injuries upon M.F. between the charged dates of July 2010 and her death on October 10, 2014, as an element of section 206.

C.F. saw defendant slap, punch, kick, and scratch M.F., hit M.F. with her fists, inflict bruises on her face and arms, and hit her with a belt. L.F. corroborated that she saw defendant hit M.F. with a belt more than 10 times, and it started "[e]ver since [M.F.] … was adopted into our household." L.F. saw defendant hit M.F. with a belt "[v]ery often" if she caught M.F. "stealing" food. L.F. also saw defendant hit M.F. with her fists and saw bruises on M.F.'s arms and legs.

C.F. testified that defendant also pushed M.F.'s head into the wall as punishment. C.F. reviewed photographs taken during the search of defendant's house in November 2015, and testified the dents were from defendant's act of pushing their heads into the wall. L.F. described a harrowing incident when she saw defendant "bang [M.F.'s] head against the hallway wall" about 10 times, her head made "a dent into the wall," and she heard M.F. "crying and yelling." The strand of hair within one of the dents matched M.F.'s mitochondrial DNA. M.F.'s DNA profile was found in a red stain on the wall in her bedroom, and M.F. could not be eliminated as a major contributor of the DNA found on another red stain on the hallway wall.

C.F.'s descriptions of defendant's methods to punish M.F. were corroborated by the members of Webster Elementary's teaching staff, who testified in great detail about the physical injuries they saw on M.F.'s body that started in 2011, with facial scabs, bruises, and bitemarks, and progressed to numerous and more serious bruises on her face, head, and body, and culminated in the repetitive and more grievous injuries in her final months at Webster Elementary: the significant facial bruise, followed by the large abdominal bruise that wrapped around her back, observed at separate times in February 2014; bruises and marks on her face in March 2014; the small dots, spots, and scab marks on her stomach and back that puzzled the school staff, observed on successive days in March 2014; limping on a sore ankle or leg in April 2014; and more facial bruises and successive black eyes in April and May 2014. The school staff also described numerous times M.F. was in pain and discomfort when she had these injuries, particularly when she was bending over with pain in April and May 2014.

The autopsy of M.F. in October 2014, nearly four months after her last day at Webster Elementary, showed her body was riddled with multiple external and internal injuries that were in various stages of healing, independent of the fatal internal injuries addressed above.

C.F. could not recall if defendant used the Taser-like device on M.F., but Dr. Berkowitz testified that the numerous raised scars on M.F.'s abdomen, lower chest, and back that were visible at the time of the autopsy, and puzzled the school staff in March 2014, looked like healed cigarette burns and were consistent with burn injuries inflicted by a Taser-like device. Dr. Super could not rule out that the oval shaped injuries on M.F.'s body were inflicted by the barrel of a handheld Taser that did not use an attached dart, as described by C.F.

The record strongly implies M.F.'s numerous black eyes and facial bruises resulted from defendant's "punishment" of pushing her face and head into the wall, leaving dents and DNA markers around the house. Dr. Berkowitz testified that M.F.'s external head injuries and internal subscapular bleeding were not self-inflicted, she had never seen these kinds of injuries on a child, and believed they were consistent with someone hitting the child's head against a wall. These head injuries would have been painful and left the child dizzy and could have jarred her brain and resulted in a traumatic brain injury similar to those suffered by football players.¹⁰⁵

105 While C.F. testified about defendant's food restrictions on the siblings, Dr. Berkowitz testified that M.F. was not malnourished at the time of her death, but her height and weight were "on the smaller side."

Most notably, the autopsy revealed the prior, nonfatal internal injury to M.F.'s mesenteric area. There was no evidence in M.F.'s medical records that she previously suffered significant abdominal trauma when she was removed from her biological mother, lived in foster care with defendant's parents, or examined upon placement in defendant's home in 2010. Dr. Super testified that the scar tissue that formed from the healing process of this nonfatal mesentery injury would have been painful for a 12-year-old child because "[t]he fibrosis occurs with swelling, so this would be uncomfortable until it's healed." Dr. Berkowitz similarly testified that a child who suffered this type of injury, or repeated blunt force trauma to the abdomen, would suffer pain associated with movement. The child would guard or hold their belly to limit how much the abdomen was moving, and also limit bending to avoid pain. Even Dr. Crawford-Jakubiak, the defense expert, acknowledged the prior internal fibrosis in her mesenteric area "speaks to a serious injury that happened at some point in the past beyond something that most people experience."¹⁰⁶

106 The testimony from Webster Elementary's staff raised the strong inference that defendant likely inflicted the prior, nonfatal mesenteric internal injury at some point in 2014. On February 26, 2014, M.F. had the significant, deep tissue abdominal bruise on her right side that wrapped around to her back. Ms. Baughman asked M.F. what happened, and M.F. said that" 'she woke up this morning still kind of asleep, tripped over her own foot and fell onto her bed where the wood is and hurt herself'" - the same reason defendant gave after M.F. died from the fatal mesenteric injuries in the same location. (Italics added.) Ms. Baughman believed the bruises were too old to have happened that day, and "[i]t wasn't a bruise that I have ever seen, being a mom of two boys, that was caused just from walking - or, to me, personally, walking or stumbling and falling over the foot of your bed onto your bed frame." Ms. Shepherd also saw this bruise and testified that M.F. was "walking very gingerly that date, not her typical normal cadence of walk." There are other possible dates for the infliction of the nonfatal mesentery injury or perhaps indicative of the painful healing process: on April 29, and May 6, 27, and 28, 2014, the school staff reported M.F. was hunched over, walking slowly, obviously in pain, and holding her stomach.

While medical treatment is relevant to determine the existence of great bodily injury, such a showing is not required to prove that the victim suffered significant or substantial physical injuries. (People v. Quinonez, supra, 46 Cal.App.5th at p. 464.) In closing argument, defense counsel argued that while defendant took the children to the doctor all the time, the prosecution's medical records showed defendant's concern to obtain treatment for the children's injuries, particularly C.F.'s repeated and painful injuries to his arm. The evidence refuted this argument, however, and showed defendant never took M.F. for appropriate medical treatment until she had to comply with the department's safety plan, and even then, she failed to accurately report the reasons for the girl's injuries.

D. Analysis - Great Bodily Injury for Count 3, Torture of M.F.

As to count 3, torture of C.F., there is substantial evidence that defendant inflicted physical injuries upon C.F. that constituted great bodily injury as required by section 206.

C.F. extensively testified about defendant's unique acts of physical abuse and the injuries inflicted on him. The prosecution introduced evidence to corroborate nearly every aspect of his testimony, including photographs taken of his body during the criminal investigation in December 2015. These photographs showed marks and scars inflicted by defendant as her unique form of "punishment," and were still visible on his body nine months after he was removed from her home.

C.F. testified that certain photographs showed numerous marks on his arms, back, and buttocks, described them as "[l]ittle burns," that defendant inflicted these marks when she used the Taser-type device directly on his skin, and the electrical shock burned his skin and inflicted such pain that he fell to the floor. L.F. saw defendant use some type of shocking device on C.F.'s body and heard him scream in pain. A.F. also heard C.F. crying after hearing a zapping sound.

C.F. testified another photograph showed a scar on his head that was from the incident where defendant beat him with a belt, and the metal buckle hit "the top of my head and split my head open."

C.F. identified photographs of marks on his stomach and back as scratches that defendant inflicted with her fingernails. C.F. also identified photographs found on defendant's cell phone, recovered during the search of her house in November 2015, that showed him with a swollen nose on one occasion, and a bloody nose on a different occasion. C.F. testified that defendant inflicted these two injuries on him, at two different times in their home, and took these photographs on her cell phone.

C.F. testified that additional photographs showed the scar on his back from defendant's act of stabbing him because he was moving too slowly to clean another bloody nose that she had inflicted on him and wounds on both legs from a different incident when defendant cut into his thighs with a knife as another form of punishment because C.F. failed to follow her orders to cut himself.

C.F. also reviewed photographs of defendant's house taken during the search in November 2015, that showed numerous dents and holes in the walls. C.F. testified that some dents occurred when defendant pushed his head into the wall as punishment, and his DNA profile was found within some of these dents. He recognized the hole in the kitchen wall, and testified defendant shoved his head, face-first, into that wall and then ordered him to cover the hole with a wall hanging, and it was still covering that hole when the house was searched.

As noted above, defense counsel argued the prosecution's medical records showed defendant's concern to obtain treatment for the children's injuries, particularly C.F.'s recurring arm pain. The evidence refuted this argument, and showed defendant never took C.F. for appropriate medical treatment of the numerous physical injuries she inflicted upon him for nearly five years, but instead used him to repeatedly present false claims to hospitals that he injured his arm to obtain multiple opioid prescriptions.¹⁰⁷

107 The prosecutor argued in rebuttal that it was not reasonable to take a child to two appointments on the same day and get multiple X-rays, the medical records showed "the Norco just keeps coming," and defendant's conduct was "not reasonable medical care. That is, 'I want Norco.' "

V. Section 206 - Substantial Evidence of Specific Intent

The second element required to prove torture in violation of section 206 is that the defendant inflicted great bodily injury with "specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (People v. Baker, supra, 98 Cal.App.4th at p. 1223.) We find substantial evidence to support this element as to counts 1, 2 and 3.

A. Evidence of Specific Intent

"The statutory requirement of an intent to inflict 'cruel' pain and suffering has been interpreted to require that the defendant had an intent to inflict extreme or severe pain." (Pre, supra, 117 Cal.App.4th at p. 420.) "This definition comports with the common dictionary definition of 'cruel' [citation]," as" 'extreme' or 'severe,'" and "in our view, is a reasonable and practical interpretation of that phrase [citation]." (Aguilar, supra, 58 Cal.App.4th at p. 1202; ibid.)

"Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.] Intent to cause cruel or extreme pain can be established by the circumstances of the offense and other circumstantial evidence." (Pre, supra, 117 Cal.App.4th at p. 420.) "Absent direct evidence of such intent, the circumstances of the offense can establish the intent to inflict extreme or severe pain." (People v. Burton (2006) 143 Cal.App.4th 447, 452.)

"A jury may consider the severity of the wounds in determining whether defendant intended to torture." (People v. Burton, supra, 143 Cal.App.4th at p. 452.) "Moreover, 'scarring and disfigurement constitute strong circumstantial evidence of intent to inflict severe pain and suffering.'" (Ibid.) "Also, a jury may infer intent to cause extreme pain from a defendant who focuses [her] attack on a particularly vulnerable area, such as the face, rather than indiscriminately attacking the victim." (Ibid.)

The infliction of "cruel and extreme pain and suffering to discipline children appears to be encompassed within the torture statute [citation] …." (People v. Flores (2016) 2 Cal.App.5th 855, 872 & fn. 10.) In addition, "prolonged starvation or excessive corporal punishment can qualify as extreme or severe pain within the meaning of the torture statute…." (Id. at pp. 871-872 & fn. 9.)

Evidence of anger does not preclude a conviction for torture under section 206. (Massie, supra, 142 Cal.App.4th at p. 372.) "[I]ntent is required under section 206, but it need not be formed as the result of premeditation and deliberation. An explosion of anger may be inconsistent with the reflection necessary for premeditation and deliberation, but it is not at all inconsistent with an intent to inflict cruel or extreme pain and suffering, which may be the result of 'mere unconsidered or rash impulse hastily executed.'" (Ibid.)

Section 206 "focuses upon the mental state of the perpetrator. [Citation.] In this respect, revenge, extortion, and persuasion are self-explanatory. Sadistic purpose encompasses the common meaning,' "the infliction of pain on another person for the purpose of experiencing pleasure." '" (Massie, supra, 142 Cal.App.4th at p. 371; Pre, supra, 117 Cal.App.4th at p. 420.)

"Black's Law Dictionary defines 'sadism' as 'a form of satisfaction … derived from inflicting harm on another.'" (People v. Burton, supra, 143 Cal.App.4th at p. 453.) "[A]lthough sadistic pleasure is commonly sexual, a sexual element is not required" under section 206, and "sadistic pleasure" may be found where the defendant "derived a perverse pleasure from beating [a victim]" who "did nothing to provoke the beatings." (People v. Healy (1993) 14 Cal.App.4th 1137, 1142; Massie, supra, 142 Cal.App.4th at p. 371.)

B. Defendant's Arguments as to Specific Intent

Defendant concedes the evidence "arguably supports the inference" she intended to cause pain and suffering to both M.F. and C.F., but argues such evidence is insufficient to prove the specific intent required by section 206: "[W]ithout minimizing the pain and suffering the siblings experienced, their injuries cannot alone support a reasonable inference [defendant] intended the pain and suffering be 'cruel and extreme' to cause the utmost, or an exceedingly great degree, of pain and suffering, or to serve the purpose of persuasion or revenge. [Defendant's] brutality was much more a matter of rage and callousness than it seemed to be meted out with the intent to inflict cruel and extreme pain and suffering in order to enforce rules or exact revenge for not following rules…."

Defendant asserts the cases that address torture murder under the first part of section 189 establish that "a parent's 'misguided, irrational and totally unjustifiable attempt at discipline' negates not only the element of willful, deliberate, and premeditated intent, but also the element of vengeful persuasion, or sadistic purpose" required by section 206. (Italics added.)

Defendant urges this court to find that even with the infliction of "beating[s], head-bashing[s], tasing[s], and stabbing[s]," there was no evidence she had an "evil purpose" to show torture within the meaning of section 206, and instead showed that she was "lashing out in anger or frustration to discipline the child or otherwise control the child's behavior."

C. Analysis - Substantial Evidence of Specific Intent as to M.F. and C.F.

We have already explained in part III, ante, that defendant's attempt to apply the requirements to prove premeditated torture murder under section 189, onto section 206's statutory definition of torture, has been repeatedly rejected. As to count 1, first degree felony murder, there must be "the specific intent to commit the underlying felony" violation of section 206. (People v. Vang, supra, 82 Cal.App.5th at p. 81.)

As to count 1, and the two torture convictions in counts 2 and 3, there is overwhelming evidence that supports the jury's verdicts that defendant inflicted great bodily injury upon C.F. and M.F., and she did so with "specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose" as required by section 206. (People v. Baker, supra, 98 Cal.App.4th at p. 1223.)¹⁰⁸

108 In arguing there is insufficient evidence of the intent required for torture, defendant asserts "[t]he extent of abuse over many years would naturally inflame jurors and incite torture convictions," and the jury convicted her of torture and felony murder because it was "incited by [defendant's] egregious conduct and the children's occasional suffering over many years" even though there was insufficient evidence she acted with "that especially-sinister state of mind." We note defendant has not raised any claims of evidentiary error on appeal, and the court granted several defense motions to exclude certain evidence during trial.

Defendant asserts that while she "committed various act of felony child abuse, repeatedly but sporadically, over the course of many years," such conduct was the result of "anger and rage," it was "spread out over the course of many years," and did not "elevate abuse to torture." To the contrary, as extensively recounted in the factual statement, defendant inflicted repetitive, serious, and grievous injuries upon her adoptive son and daughter for nearly the entirety of the four years they lived in her house. The prosecution's extensive and detailed evidence raised the very strong inference defendant did not consider these children to be human beings deserving of the care, concern, and respect expected of her as both a foster and adoptive mother. Instead, the evidence showed her specific intent to cause cruel and extreme pain and suffering to obtain their compliance, and also in revenge, for failing to obey her "rules," including her draconian insistence that they could not eat food without permission, and her sadistic purpose was evident based on how she treated these children inside the house, and how she portrayed them to people outside the house who attempted to ensure their safety.

C.F. testified that defendant inflicted "punishment" upon them for violating "rules" that they did not know about until they were punished for their alleged "violations," - taking food without permission or failing to clean the house. These same rules were not applicable to defendant's biological children. Defendant created a life of food insecurity for these children, which forced them to covertly eat snacks, and that led to more punishment. While L.F. testified that defendant failed to prepare regular meals for the family, defendant only inflicted severe punishment on C.F. and M.F. if she caught them "stealing" food. The school staff realized M.F. appeared thin. On her few well-child checkups with a physician, M.F. was found in the lower range of weight for her age. Defendant always explained M.F.'s lower weight with false statements that the girl was born with fetal alcohol syndrome.

Defendant's creation of the children's life of food insecurity led to a nefarious and oft-repeated claim about M.F.'s character - that her daughter regularly "stole" food and consumed nonfood items. The school staff confirmed that M.F. often went to the nurse's office to ask for something to eat and was seen taking snacks from the trash or another student. Defendant used these incidents to describe M.F. to the school staff and social workers as a child who "stole" food and ate from the trash, and that she had to be watched to make sure she was not "stealing" snacks - affirmative conduct taken as she attempted to ensure M.F.'s food insecurity continued outside the house. Defendant further sought to dehumanize her daughter by telling the school psychologist that M.F." 'lies to get out of trouble, disobeys, steals, and often breaks the rules,'" and" 'seems out of touch with reality….' "¹⁰⁹ (Italics added.) M.F.'s siblings, her teacher, and the special education staff, however, described a kind and loving child.

109 As the prosecutor stated in rebuttal argument, defendant used food to control M.F. and C.F., she punished them for" 'stealing food,'" and she was" 'trying to get them to comply using food to control them.' "

There were multiple times when M.F. had injuries on the same parts of her body - the repetitive black eyes and facial bruises, and the nonfatal and fatal injuries to the same area of her abdomen, as just two examples. Under section 206, a jury could reasonably determine that a person who deliberately strikes the victim on an area of the body that is already injured has the intent to cause severe pain and inflict" 'a level of pain over and above the level of pain that a victim would suffer in an ordinary assault or battery.'" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.)

L.F.'s testimony further showed exactly how defendant felt about her adoptive daughter. L.F. testified that M.F. "was just so put down all the time" because of her speech challenges. Defendant and Gerardo "would always be so mean to [M.F.] and, like, barely let her express herself because she had all these rules on her. Like, she had to do this; she had to do that; she couldn't do this; she couldn't say that." L.F. heard defendant and Gerardo tell M.F.," 'You're ugly,' 'you're stupid,' 'you're not worth anything'; really self-destroying stuff." M.F. would "just cry and take it in" and never argued back. L.F. did not share the same bedroom with M.F. because she was told, "mostly" by defendant, "that I shouldn't share a room with [M.F.] because she was no good."

L.F. also described one of defendant's contradictory rules for M.F., that the girl "had to take a shower and be clean or she'd be disgusting," but at the same time, defendant "would rarely let her" take a shower and stay clean. The school staff saw the sad evidence of this demeaning treatment, and testified about M.F.'s recurring personal hygiene issues that continued throughout her four years at Webster Elementary, when she went to school with matted hair, or dirty and ill-fitting clothes.

M.M., defendant's adoptive sister, testified that defendant said if M.F. "acted like a foster kid, she was going to be treated like a foster kid." Whenever defendant made that statement, "[w]e weren't allowed to talk to [M.F.]. We were just supposed to leave her, sit where she's supposed to sit" in her bedroom as a timeout.

Defendant regularly expressed her "frustrations" about M.F. to the school staff and social workers. After C.F. revealed what happened in the house, defendant's claimed "frustrations" were even more relevant and probative of her negative attitude and demeaning treatment of M.F. She never responded to over 200 positive reports in M.F.'s home/school notebook or wrote anything positive about her. Defendant refused to allow the girl to participate in field trips because she wanted her to experience "consequences" and "stay at school and miss something because of behavior at home." Defendant claimed M.F.'s" 'therapist'" allegedly recommended the school staff take away" 'fun activities'" to teach her" 'consequences for her bad behaviors.'" Defendant also claimed the therapist allegedly wanted the school to" 'really start getting a lot harder on her with her consequences for all of this unacceptable behavior, so if she needs to miss out on movies, fun activities, etc., then you have the okay from me, the social worker and therapist.'" (Italics added.) Defendant ordered M.F.'s teacher not to allow the girl to check out library books as another "consequence" for her alleged poor behavior. During a social worker's visit in May 2014, defendant claimed that M.F. and C.F. regularly fought with each other and claimed both children had" 'mental health needs,'" yet evaded the social worker's repeated efforts to take M.F. for a mental health screening.

C.F. testified about the various punishments that defendant inflicted upon him, and described several incidents when she decided her initial choice of punishment was not severe enough and turned to something more heinous during a single incident - she would start with punches and kicks to the body, switch to the belt, and escalate to using the Taser-like device or stab him with a steak knife.

There were also eyewitness accounts that defendant took pleasure from harming and humiliating C.F. L.F. testified about an incident when defendant punished C.F. by making him take off his shirt, wear a woman's bra, sit in the living room for a couple of hours with the rest of the children, and defendant used a mocking tone of voice to make fun of him. M.M. testified about an incident when she heard C.F. crying, looked in his bedroom, saw C.F. lying on the floor, defendant was sitting on top of him like he was a chair, and defendant was laughing.

Contrary to her appellate claims, the record shows defendant did not inflict "punishment" upon her adoptive children in brief outbursts of anger, but made sure certain punishments lasted significant periods of time. She made one, or both, of the children run laps in the backyard for hours, watched from the window, and ordered them to keep running if she saw them stop or even slow down. Defendant prevented them from sleeping by making them stand in front of the wall all night, and ensured she could monitor their compliance with this punishment by having them tie plastic bags around their feet so the bags would make noise if they tried to move. She also prevented them from sleeping by forcing them to stay outside, often in inclement weather and without proper clothing or blankets, while the rest of the family ate dinner inside and went to bed. Defendant's most harrowing form of punishment was ordering the children to stand with their noses in front of the hallway wall and slamming their faces and heads into the wall with such force to leave dents and holes.

M.F. was murdered in October 2014, and C.F. was finally removed from the house in March 2015. Just as defendant took photographs on her cell phone of facial injuries she inflicted on C.F., she never repaired the dents and holes from slamming her children's heads into the walls of the house. The holes were still there, some containing DNA profiles of both C.F. and M.F., when the house was searched in November 2015.

There was testimony from members of the children's adoptive family and the school staff about the close and affectionate relationship between C.F. and M.F. At the beginning of the 2012-2013 school term, however, defendant suddenly transferred C.F. to another elementary school, removing one of M.F.'s sources of friendship and comfort, and blamed the girl as the reason for the transfer.

On the day of M.F.'s death, defendant ensured the continuation of the girl's food insecurity by taking the rest of the family to dinner while M.F. and C.F. had to clean the house. Even if defendant and Gerardo brought back takeout food for the two children, defendant did not allow M.F. the opportunity to eat dinner and instead questioned her about the white powder on her face, and whether she had eaten without permission. Defendant again "punished" M.F. by beating her. When the girl started to pass out as her body went into shock, defendant slapped her face, threatened to make her run laps, called her a "drama queen" as she was dying, and repeated that demeaning phrase when she spoke to the social worker at the hospital a short time after M.F. died.¹¹⁰

110 As the prosecutor argued in rebuttal, "[T]his defendant … has an incredible amount of animus toward [M.F.]. Why does she hate this little girl so much. I don't know. Four years of [home/school] notebooks provides evidence into this defendant's animus toward [M.F.]," defendant never replied to any of Ms. McCully's positive entries or wrote her own positive comments about the girl, and defendant "called her dead child a drama queen when the child is still warm." The prosecutor cited the recording of defendant's statement to Detective Noland about what happened when M.F. died, and "you can hear the defendant blaming the victim. You can hear the defendant's negative tone of voice towards [M.F.]. You can hear the animosity in her voice months after this child is dead. She still hates her."

During the four years the children lived in defendant's house, and as she inflicted various punishments on them, she had numerous opportunities to reflect and consider what she was doing to them, but instead continued to treat both M.F. and C.F. as less than human, and the subjects of her vengeful and sadistic punishments. (See, e.g., Massie, supra, 142 Cal.App.4th at pp. 372-373.)

C.F. testified that after he broke his elbow (one injury that was apparently unrelated to any action of defendant), defendant continued to beat him after his two surgeries and while his arm was in a cast. After he fully recovered, defendant used C.F. to obtain prescriptions for opioids based on her false reports about his alleged elbow injuries and subjected him to numerous unnecessary X-rays throughout 2014. Even after M.F.'s death, defendant continued to use C.F. to obtain opioid prescriptions and inflict draconian punishments upon him, possibly believing she got away with killing his sister. Defendant told C.F that contacting his biological mother "wasn't an option" because "she wasn't around anymore, and C.F. was afraid he "was next" and she would also kill him.

"[P]rolonged starvation or excessive corporal punishment can qualify as extreme or severe pain within the meaning of the torture statute" (People v. Flores, supra, 2 Cal.App.5th at pp. 871-872 & fn. 9) and "inflicting cruel and extreme pain and suffering to discipline children appears to be encompassed within the torture statute [citation] …." (Id. at p. 872.) In Flores, the court held the defendant's use of beatings and food deprivation to discipline children amounted to torture. (Ibid.) "For example, when [the defendant] elected to discipline all three children (because one had eaten a cookie without permission) by making them sleep in the garage without blankets, and despite the distress it caused the children, [the defendants] were in the house laughing about it. [The defendant] also disciplined the children by making them stand all day in a corner and, when [the codefendant] returned home, he did nothing to relieve the children of that punishment; instead, they continued to have to stand in the corner." (Id. at p. 872, fn. 10.)

While neither child was found to have been starved, "[a] reasonable jury could have concluded that the gratuitous and repeated acts of extreme brutality" (Massie, supra, 142 Cal.App.4th at p. 375) that defendant inflicted on M.F. and C.F. "were committed for the sadistic purpose of providing defendant pleasure" (id. at p. 376) and "a perverted enjoyment of causing the victim to suffer." (Ibid.) Defendant's assertion that this case was simply one of felony child abuse improperly charged as torture rings hollow in light of the overwhelming evidence about how defendant felt about these children, portrayed them to the school staff and social workers, and treated them up to the moment of M.F.'s death, even continuing after C.F. was finally removed from her home and placed in foster care, when she instructed him during a visitation to tell investigators that he harmed his sister on the day of her death "because they couldn't do anything to me because I'm a young kid."

Defendant's statements, conduct, and actions constituted circumstantial evidence that she punished these children to obtain their submission to her "rule" not to eat without permission, in vengeance for violating her rules, and most particularly for a sadistic purpose since she did not consider them worthy of care and concern, and laughed, mocked, and demeaned them as she "punished" them.

There is substantial evidence to support the jury's findings as to counts 1, 2, and 3, that defendant inflicted great bodily injury upon both M.F. and C.F. with "specific intent to cause cruel and extreme pain and suffering for the purpose," in this case, "of revenge … persuasion, or for any sadistic purpose." (People v. Baker, supra, 98 Cal.App.4th at p. 1223

DISPOSITION

The minute order for the July 13, 2020, resentencing hearing on recall, is amended to state that as to count 4, the court imposed a consecutive term of four years for the Penal Code section 12022.95 enhancement, and it was stayed pursuant to section 654.

The abstract of judgment filed on July 28, 2020, is similarly amended to state that as to count 4, the court imposed a four-year enhancement pursuant to section 12022.95, that it was stayed, defendant's aggregate determinate term for counts 4 and 5 and the attached enhancements was 19 years, and the entirety of the determinate term was stayed. The trial court shall prepare and forward to all appropriate parties a certified copy of an amended abstract of judgment.

In all other respects, the judgment is affirmed.

WE CONCUR: LEVY, Acting P. J., MEEHAN, J.