Metropolitan News-Enterprise


Friday, June 3, 2011


Page 3


S.C. Upholds Death Sentence for Woman Convicted of Killing Infant


By Kenneth Ofgang, Staff Writer


The state Supreme Court upheld the death sentence yesterday for a Chula Vista woman who was convicted along with her husband for the torture and murder of their four-year-old niece.

Veronica Utilia Gonzales was sentenced to death in July 1998 for the murder of Genny Rojas. Her husband, Ivan Gonzalez, was tried separately and also received the maximum sentence, reportedly making them the only husband and wife sentenced to death in California.

Ivan Gonzales’ appeal has been fully briefed but not yet set for oral argument, court records show.

Justices yesterday voted unanimously to uphold Veronica Gonzales’ conviction of first degree murder with special circumstances of torture and mayhem, and split 6-1 in favor of upholding the death sentence. Fifth District Court of Appeal Justice Rebecca Wiseman, sitting on assignment, argued in dissent that improper remarks by prosecutor Dan Goldstein—now a San Diego Superior Court judge—may have affected the outcome of the penalty phase.

Wiseman is one of a number of Court of Appeal justices who have been sitting in rotation since the Feb. 28 retirement of Justice Carlos Moreno.

Justice Carol Corrigan, writing for the court, said Goldstein’s impassioned plea for the death sentence, in the form of a letter to the victim, went beyond the limits of fair argument, and that Judge Michael Wellington should have gone further than merely admonishing jurors to avoid responding solely to emotion.

But the crime was so horrific, and the defense’s case in mitigation so weak, that reasonable jurors would have imposed the death sentence regardless of the tone of the argument, Corrigan said. She was joined by Chief Justice Tani Cantil-Sakauye and Justices Marvin Baxter, Ming Chin, Joyce L. Kennard, and Kathryn M. Werdegar.

According to trial testimony, the Gonzaleses told their children the girl was dead but waited several hours before calling authorities. When police investigated, they discovered “a prolonged and varied course of abuse,” as Corrigan put it.

Genny was beaten repeatedly, burned with a blow dryer on her face and upper body, and handcuffed and hung from a bar inside a closet for hours at a time. She was sent to live with the methamphetamine-addicted couple, who had six children of their own, when her mother headed to a drug rehabilitation program.

Her father was in prison, having been convicted of child molestation.

The aunt’s attorneys sought to pin the blame on the uncle, calling Veronica Gonzales the victim of battered women syndrome. But Corrigan said the evidence did not support the theory, noting that family members testified that she was the dominant person in the relationship.

The justice also rejected the defense argument that jurors should not have been told that Gonzales refused, on advice of counsel, to be interviewed by a mental health professional retained by the prosecution. The defense’s BWS theory clearly put the defendant’s mental state in issue, Corrigan said.

The justice acknowledged that under Verdin v. Superior Court (2008) 43 Cal.4th 1096, which was filed during the pendency of the appeal, a trial court lacks inherent power to order a defendant to submit to examination by a prosecution expert. But the court can appoint experts, on its own motion or that of a party, under Evidence Code Sec. 730.

While the trial judge ultimately ruled incorrectly on the issue of inherent authority, Corrigan explained, the prosecution did mention Sec. 730 in its motion, and the defense did not argue that the statute did not apply and cannot make that argument for the first time on appeal. So the court’s reliance on inherent authority was not prejudicial, the justice concluded.

Corrigan went on to say that Goldstein’s “extended and melodramatic oration” during penalty phase argument, including “telling” the victim that she was “a member of our family, those of us who have lived with you here in Department 32” and that “[w]e refuse to reject you as your mother and father did for a life of drugs and molestation” and “as your grandmother and other relatives did to you,” was “plainly improper.”

While it was acceptable for the prosecutor to appeal to the jury’s sense of outrage and empathy, and to comment on the defendant’s conduct and the victim’s vulnerability, Corrigan explained, he crossed the line by encouraging jurors to see themselves as the little girl’s “protective family” and to atone for society’s failure to protect her.

But while such argument opened up the risk of a verdict based on irrational emotions, the jurist concluded, there was no reasonable possibility that jurors would have reached a different verdict without it.

The “letter to Genny,” she reasoned, was just one part of a lengthy argument that was otherwise properly confined to the evidence. And given the “almost unimaginably horrible” facts of the case, and the unsympathetic nature of the defense mitigation witnesses—family members “who were themselves complicit in Genny’s endangerment”—he defendant’s claim of prejudice is unrealistic, the justice said.

Wiseman disagreed on that point.

“In my view, the extreme emotional nature of the letter makes it reasonably possible that the improper argument tipped the balance,” the dissenting jurist wrote, explaining:

“The majority takes the position that the letter was not ‘central’ to the prosecutor’s summation....I respectfully disagree with this conclusion and, to the contrary, believe the letter likely was the most memorable part of the prosecutor’s summation. The prosecutor was an experienced attorney and used the letter as a very powerful strategy in a highly emotional case. It must have been obvious to the prosecutor that his use of the letter to Genny was having a major impact on the jury in light of the repetitive and impassioned nature of the defense objections to it “

The case is People v. Gonzales, 11 S.O.S. 2889.


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