People v. Yang

Filed 8/24/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C080978

Plaintiff and Respondent, (Super. Ct. No. 11F04310)

v. MODIFICATION OF
OPINION AND DENIAL OF
KA YANG, PETITION FOR
REHEARING
Defendant and Appellant.
[NO CHANGE IN
JUDGMENT]

THE COURT:
Respondent filed a petition for rehearing with this court. It is hereby ordered that
the petition for rehearing is denied.

1
 It is also ordered that the opinion filed herein on July 28, 2021, be modified as
follows:

1. In the editorial portion of the published opinion, Deputy Attorney General
Julia A. Hoskans should be listed as “Julie A. Hokans.”
2. On page 4 under the heading Defendant’s Seizures, the first sentence will
be modified after the word “experienced” and the entire sentence will now
read as follows:
“Defendant began having seizures at age 13 or 14 and by the time of the
killing had experienced at least 100 and possibly as many as 1000 seizures
in her lifetime.”
3. On page 66 in the first paragraph (the sentence is a continuation from page
65), the word “primarily” is to be inserted in the third line of sentence
before the words “on his opinion.” That sentence in its entirety will now
read:
“Moreover, while Dr. Treiman opined at trial that the time between
defendant’s last act on her computer and the time she found her mother was
insufficient for her to have had a seizure, perform the acts required to kill
her daughter, and fully recover by the time Va returned home from picking
up defendant’s sons from school, his conclusion was based primarily on his
opinion that defendant only suffered from generalized onset seizures, an
opinion with which Dr. Garcia disagreed.”
4. On page 68, following the conclusion of the first full paragraph after the
words “defendant was suffering from mental illness,” a footnote is to be
inserted as follows:

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 “29 In his petition for rehearing, the Attorney General argues the “key fact”
of defendant’s “recurring thoughts of suicide” also signaled a mental
disorder, citing a website listing suicidal ideation as one of eight diagnostic
criteria for clinical depression. First, the Attorney General overstates the
relevance of the admissible evidence of suicidal ideation, which we have
set forth in detail elsewhere in this opinion and decline to detail here.
Second, the article offered by the Attorney General states the following
qualification prior to the listing of the eight symptoms: “The DSM-5
outlines the following criterion to make a diagnosis of depression. The
individual must be experiencing five or more symptoms during the same 2-
week period and at least one of the symptoms should be either (1)
depressed mood or (2) loss of interest or pleasure.” (Truschel, Depression
Definition and DSM-5 Diagnostic Criteria (Sep. 25, 2020) PSYCOM

(as of Aug. 20, 2021), archived at .) There was
no evidence presented that defendant in any way met this requirement.”
5. The remaining footnotes should be renumbered due to the addition of
footnote 29.

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 This modification does not change the judgment.

FOR THE COURT:

/s/
Duarte, Acting P. J.

/s/
Hoch, J.

/s/
Renner, J.

4
Filed 7/28/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C080978

Plaintiff and Respondent, (Super. Ct. No. 11F04310)

v.

KA YANG,

Defendant and Appellant.

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

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

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julia A. Hoskans, Clara M.
Levers, Deputy Attorney General, for Plaintiff and Respondent.

1
 This is an excruciatingly tragic case.
A mother of four young children was found guilty by jury of first degree murder
and assault on a child resulting in death, after she killed her youngest child and only
daughter. There was no dispute that on an otherwise routine afternoon, defendant Ka
Yang, while alone with her baby Mirabelle, placed the baby in a microwave oven and
operated it for multiple minutes. These actions killed the baby, whom by all accounts
was a child Yang cherished.
Defendant told her family and first responders that she did not know how the baby
was injured, but she consistently spoke of having suffered a seizure, and guessed that the
baby had been injured when dropped on a nearby heater while defendant was
incapacitated. Defendant had a history of epilepsy; her defense at trial, supported in part
by expert testimony, was that she killed her daughter while unconscious due to an
epileptic seizure.
The prosecution countered defendant’s claim of unconsciousness with expert
testimony of its own, including testimony regarding postpartum mental disorders and
testimony utilizing defendant’s privileged psychological records, after an inadvertent
disclosure by the trial court allowed the prosecutor to discern these records’ contents
midtrial and secure their admission on that basis. Although defendant had not been
diagnosed with any postpartum mental disorder, and Mirabelle’s pediatrician testified
defendant had screened negative for any such disorder, the prosecution relied on this
evidence to theorize that defendant was motivated to kill her daughter by hallucinations
related to undiagnosed postpartum psychosis.
We conclude the trial court abused its discretion by allowing expert testimony
regarding postpartum mental disorders without sufficient factual basis and by
subsequently admitting into evidence defendant’s psychological records not directly
related to any mental condition she had put at issue. Because we cannot conclude these

2
errors were harmless when considered together, we reverse the judgment in its entirety.
Accordingly, we do not reach defendant’s remaining claims.1
FACTS AND PROCEEDINGS
In September 2015, an amended information charged defendant with the first
degree murder of her infant daughter, Mirabelle (Pen. Code, § 187, subd. (a); count one),
and assault on a child resulting in death (id., § 273ab; count two). It was further alleged
defendant personally used a deadly and dangerous weapon, to wit, a microwave, in the
commission of the murder as charged in count one. (Id., § 12022, subd. (b)(1).) The
murder was alleged to have occurred on March 17, 2011; defendant first appeared on the
charges on June 23, 2011. The case proceeded to trial on August 31, 2015, and defendant
was sentenced on December 18, 2015. This timely appeal followed.2
Numerous witnesses testified during trial, including defendant’s family members
and former coworkers, emergency personnel who responded to the scene, law
enforcement officers who interviewed defendant, and expert witnesses who testified
about epilepsy, causes of infanticide, postpartum mental disorders, and microwave ovens.
We categorize and summarize the relevant testimony here, and add any additional details
as necessary to clarify the nature of procedural disputes and the issues on appeal later in
our Discussion.

1 Defendant’s additional claims on appeal include instructional error, improper removal
of a juror, and charging error.
2 The notice of appeal in this case was filed on December 29, 2015. Due to many delays
in preparation and transmittal of the record and multiple augmented records, as well as
multiple extensions to the briefing schedule, this case was not fully briefed and assigned
to this panel until August 2020. This panel ordered supplemental briefing in December
2020, which was complete in February 2021. The case was argued and submitted in
May 2021.

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 Defendant’s Background
Defendant, who was 29 years old at the time of the killing, was born in the United
States and is of Hmong descent. She lived in Sacramento with her husband, Chi Lo, their
three young sons, then aged four, seven, and eight, and their daughter Mirabelle, who was
born on January 22, 2011. Defendant loved her children and took good care of them.
She was very happy to have a daughter, and by the family’s account she loved and
cherished Mirabelle.
Chi’s brother, Va Lo, also lived with the family, and defendant’s mother, Choua
Kue Yang,3 stayed with them periodically. Defendant’s relatives lived nearby and helped
when needed.
Defendant worked as an office worker while pregnant with Mirabelle, and after
Mirabelle’s birth she worked at home preparing checks over the Internet for a few hours a
day. Chi was a long-haul truck driver; typically he was on the road during the week and
at home on weekends, but at times he would be gone for up to 14 days at a time.
Defendant’s Seizures
Defendant began having seizures at age 13 or 14 and by the time of the killing had
experienced more than 100 seizures in her lifetime. She took medication to control her
seizures, but she did not believe the medication helped. According to defendant, during
her seizures she lost consciousness, fell down, and afterward did not remember what
happened.
Defendant’s husband Chi had witnessed many of her seizures. In his experience,
defendant described seizures as beginning with a “flash” or “flashback.” She did not
know when she was going to have a seizure and had no memory of what happened during
her seizures. She would fall from a standing or seated position, her hands would curl up,

3 Due to the similarities of surnames between defendant and other witnesses, we refer to
defendant’s family members by their first names.

4
her body and extremities would shake, her eyes would roll into her head, and she would
drool while making moaning or groaning noises. She bit her tongue 90 percent of the
time and sometimes lost bladder control. In Chi’s experience, defendant did not walk
around or do anything during her seizures, which lasted for at least two to five minutes.
After a seizure she had very low energy, was slow to get up, and seemed dazed and
confused. Normally she would go somewhere and lie down, and it would take three to
four hours to regain her senses.
Defendant’s mother Choua testified some of defendant’s seizures were more
intense than others.4 When she had a “fall-down” seizure, she would fall to the ground
and shake, clench both fists and bite her tongue. These could last up to 10 minutes.
When she came to, she would get up after taking a moment, the amount of time varied.
Choua would help her to her room, and she was back to normal after sleeping for 30 to 60
minutes.
Other witnesses to defendant’s seizures noted that defendant often appeared weak,
confused, disoriented, or exhausted after a seizure. During that time, she could not
follow simple commands and she could not have completed any complicated task such as
working on a computer or driving. She would gradually regain consciousness; her
recovery time appeared to depend on the severity of the seizure. Three witnesses who
had observed defendant’s seizures testified defendant sometimes tried to sit up or get up
soon after suffering a seizure, but those who witnessed the seizure would tell her to stay
down. One witness testified paramedics arrived “probably four or five minutes” after
defendant had a seizure on the occasion the witness observed; defendant was able to
answer their questions but did not understand why the paramedics were there.
Defendant’s sister-in-law testified defendant’s seizures were not always the same.
She observed defendant have two seizures that caused her to fall to the ground, clench her

4 Choua testified with the assistance of an interpreter.

5
fists, and shake for two to three minutes. But she also observed one instance in which
defendant was sitting on her couch when her face went blank, and she looked dazed for
about a minute. When she regained her senses, she did not remember what they were
talking about.
Defendant’s brother, Kao Yang, also testified defendant’s seizures varied widely.
Sometimes her seizures would cause her to fall down and shake, but sometimes she
would “just kind of blank out for several minutes.” During those “fast seizure[s],” she
would stiffen up and shake, but not fall, due to how she was positioned on a bed or
couch. She would usually get up a minute or so, or up to five or 10 minutes, after the
seizure was over, but sometimes Kao would tell her to sit down because she was “woozy”
as she walked, “like, she’s not there.” Other times she would get up and “you can’t really
tell.” She would not perform any automatic acts. Sometimes she would stay on the
couch, and sometimes she would walk into a bedroom. It generally took some time
before defendant was conscious and alert again. In neither instance would defendant
remember what had happened.
Defendant was involved in two car crashes due to her seizures, the most recent of
which occurred only a week before Mirabelle’s death. She recalled having a “flashback”
while driving, before awakening in the hospital. She described the flashback as: “Um, I
had like, you know, you see a person right in front of you.” She could not describe the
person.
Mirabelle’s Death
March 17, 2011, began normally. Chi was out of town working. Choua arrived
late the previous evening to help defendant care for Mirabelle, because defendant needed
time to apply for public benefits that afternoon. Defendant fed Mirabelle at

6
approximately 5:00 a.m.5 Defendant accessed a check on the Internet for her job at 6:00
a.m. She and Mirabelle got out of bed at approximately 7:00 to 7:30 a.m., and she
changed Mirabelle’s diaper because the baby was crying. Defendant brought Mirabelle
to Choua so she could run an errand. When she returned home, defendant yelled at the
boys to quit playing video games and get ready for school.
Choua walked the two older boys to school and worked in the yard upon returning
home. Defendant prepared food for her youngest son. Choua came inside at 10:00 a.m.
and changed Mirabelle’s diaper. Defendant’s youngest son played with Mirabelle, who
was lying on a pillow on the floor, and defendant yelled at him for playing too roughly
with the baby. She told him to take a shower.
Defendant began working on her computer. She checked on her youngest son and
yelled at him for spilling water after his shower. Her son began playing with Mirabelle
again, and she told him to get dressed for school. Choua put Mirabelle in her bouncy
chair and cooked breakfast. Defendant continued to work on the computer. Mirabelle
started to cry, so defendant gave her a bottle, as Mirabelle was a bottle-fed baby.
Mirabelle continued to cry, so defendant gave her a pacifier, and Mirabelle slept for a few
minutes. Mirabelle was crying more than normal that morning. Choua testified
Mirabelle was a little fussy, but it did not concern her. Chi (who spoke with his wife
every day) testified defendant did not ever say she was stressed, overworked, or
frustrated; he called her from the road the morning of the killing during a break and spoke
with her for at least an hour, possibly two, which was not unusual. She did not mention
that the baby was crying or otherwise acting strangely; they spoke of routine matters, and
nothing seemed out of the ordinary. They ended their call at some point before noon.

5 The precise order and timing of the morning’s events before the actions directly
leading to Mirabelle’s death differed slightly between accounts. We synthesize the
various accounts here; any discrepancies do not affect our analysis.

7
 Mirabelle began crying again as defendant and Choua ate. Choua picked her up.
Va walked defendant’s youngest son to school at approximately 11:55 a.m.; he returned
at approximately 12:15 p.m. and went to his room. After they finished eating, defendant
put Mirabelle back in her bouncy chair and made her another bottle. Choua resumed her
work in the yard. Va, who testified that Mirabelle generally “wasn’t a quiet baby” and
“had times when she cried,” heard “normal crying” from Mirabelle between 1:00 and
1:30 p.m. He clarified that she cried for “a minute or two” at that time, which was not
unusual.
Va left the house at approximately 1:55 p.m. to pick up defendant’s two older sons
from school. He saw defendant working at the computer as he left; he did not see or hear
Mirabelle. Computer records showed that defendant worked on multiple checks between
1:10 p.m. and 1:58:34 p.m. After Va left at approximately 1:55 p.m., defendant was
alone inside the house with Mirabelle while Choua worked in the yard outside.
Defendant was interviewed multiple times by law enforcement after the baby’s
death and provided them with information about what happened while she was alone with
the baby; these interviews were presented as evidence against her at her trial. She told
the detectives she gave Mirabelle the bottle again and then the pacifier. She noticed
Mirabelle’s eyes were moving back and forth like she was looking at a fly, but there was
nothing there. She said the eye movement without apparent cause “kinda scared me a
little bit,” but she did not think anything would happen because of her faith in God. The
family were practicing Mormons. Mirabelle rejected her pacifier and was crying, so
defendant picked her up and held her, and she stopped crying.
Defendant’s head started pounding, followed by a flash of white light or
“flashback.” She woke up with Mirabelle lying next to her in the bedroom or in the front
room. She believed she had a seizure because she wet herself and bit her tongue. She did
not remember anything that had happened during the seizure. She noticed Mirabelle was
red in the face, was stiff, and was not breathing. Crying, defendant brought Mirabelle to

8
Choua, whom she thought was in the kitchen. When asked why she did not look for Va
instead, defendant confirmed that although she did not remember him leaving that day,
she remembered him returning to the house after she had found Choua, and she knew Va
had been away because he “always leaves to go pick up” her older sons. After she awoke
from the seizure, she “was scared” and “just went to find [her] mom because that’s how
. . . [she] reacted.”
At that time Choua was returning to the house from the yard. She testified that
when she reached the stoop, defendant opened the door holding Mirabelle, who wore
pajamas and was wrapped in a blanket. Defendant said Mirabelle was sick, and they
needed to take her to the hospital.
Choua saw that defendant’s face was flush, her body was sweaty, her pants were
wet around her thighs, and her tongue was bitten so she could not speak clearly. Choua
unzipped Mirabelle’s pajamas, and she saw Mirabelle had burn marks on her chest, her
skin was peeling off her chest, and her body was hot to the touch. Defendant started to
peel off Mirabelle’s skin near the top of the closure of her pajamas, but Choua slapped
her hand away.
When Va returned to the house from picking up the boys from school, the front
door was open and defendant and Choua were standing five feet inside the house. Choua
was holding Mirabelle; defendant said something bad happened to the baby, and Choua
said defendant might have had a seizure. Defendant and Va discussed taking Mirabelle
to the hospital. Choua told him to call 911, which he did at 2:09 p.m., or approximately
one to five minutes after he arrived back at the house.
On the 911 call, which was played for the jury, Va repeated what Choua had told
him: that defendant had a seizure and dropped the baby and probably fell on her. During
the call, defendant complied with Va’s instructions from the dispatcher to put Mirabelle
on the sofa and to perform mouth-to-mouth. Defendant later told detectives she
performed chest compressions on Mirabelle, and Va initially testified to the same. But

9
after hearing the recorded 911 call and discussing the statement he gave in 2011, Va
testified that he performed the chest compressions rather than defendant. Va could not
recall whether defendant appeared disoriented, but she answered his questions. Nothing
suggested to Va that defendant was recovering from a seizure, although he thought a
seizure was the most likely explanation because defendant was a good mother who loved
her children and would never harm them on purpose.
First Responders
First responders arrived at 2:16 p.m. Brandon Gaub, a firefighter and paramedic,
entered the house at 2:17 p.m. and saw defendant kneeling next to Mirabelle on the
couch. He asked defendant to move out of the way, and she complied. Gaub asked what
happened to Mirabelle, and someone in the room responded: “I don’t know.” Someone
said defendant had a seizure and mentioned falling on a space heater. He did not
formally assess defendant, but nothing he observed from his limited interaction with her
suggested that she had suffered a seizure.
Firefighter and emergency medical technician Jennifer Ertl testified defendant said
she had a seizure while working on the computer, and she dropped Mirabelle onto a
heater. When pressed, defendant repeated her explanation. Defendant then said she did
not know what happened. A man told Ertl that defendant had a seizure and fell against
the heater. Officer Bohrer later interviewed Ertl at the scene, and she said defendant told
her over and over that she had a seizure and did not know what happened. Defendant
was calm, alert, standing, talking, and making eye contact. She did not appear to Ertl to
be confused or disoriented.
Gaub and Ertl acknowledged they breached protocol for treating a person who
reported experiencing a seizure by failing to assess defendant’s medical condition,
prepare a patient care report for her, or offer to transport her to the hospital.
Police officers arrived at 2:23 p.m., at which time Mirabelle was pronounced dead.
Officer Shippen interviewed defendant at 2:25 p.m. Defendant told Shippen what she did

10
that day before her seizure, that she had a history of seizures, that she believed she had a
seizure at approximately 1:30 p.m., but that she could not remember what happened. She
did not appear disoriented and appeared to understand and appropriately respond to his
questions. She appeared “fairly calm” and did not appear weak; he testified that it was
possible her calm demeanor was due to shock. He did not check her clothing for
incontinence, but he did not smell urine.
A detective found a pacifier in the microwave oven.
Investigation and Forensic Testimony
Mirabelle died of thermal injuries resulting from overexposure to microwave
radiation in a microwave oven. She had second and third degree burns on approximately
56 percent of her body and suffered severe internal burns. The burn patterns were
consistent with burns from a microwave oven and suggested that defendant placed
Mirabelle in the oven lengthwise and on her back.
A microwave oven expert estimated Mirabelle was in the oven for over two to
three minutes at a minimum, and although an exact estimate was impossible, his best
estimate was at least five minutes. It would take two to three minutes in the microwave
oven to cause the injuries that killed Mirabelle, but the resulting burns would have taken
longer.
The expert witness demonstrated how to use defendant’s microwave. To cook for
five minutes, the user must press the buttons “five-zero-zero and then start” in order.
Nothing happens if only the “start” button is pressed. Pressing the “five” and then “start”
buttons causes the oven to cook for five seconds. Pressing the button “add a minute”
once cooks for one minute, and each additional impression adds another minute to the
cook time. Pressing the “baked potato” button twice and then pressing the “start” button
would cause the microwave to cook for five minutes.

11
 Defendant’s Law Enforcement Interviews
Detective Thomas Shrum interviewed defendant later on the date of the killing, the
recording of which was played for the jury. Defendant stated she had no memory of what
happened because her seizures cause her to fall down and not remember events.
Defendant believed she had a seizure because she bit her tongue, wet herself, and could
not remember what happened. Shrum testified that did not see blood or a fresh wound on
defendant’s tongue, did not smell urine, and did not notice that defendant’s pants were
wet.
Defendant denied she had burned the baby using the stove or the microwave, but
she also responded that she did not know when Shrum posited that she put Mirabelle in
the microwave when she had a seizure, adding that when she had a seizures she could not
remember what had happened. She later agreed with Shrum that she could not have had
a seizure because she would have fallen down. Defendant told Shrum she had never hurt
herself or anyone else during a seizure; she had only walked from one place to another
without remembering how. She repeatedly denied that she was stressed, frustrated, or
angry at Mirabelle for crying. At the close of this interview, where at times defendant
responded to questions in what seemed a confused manner, detectives told her she should
go see a doctor. She responded that she would, but she had trouble responding to their
questions as to where she would go, telling them instead that: “It’s after my seizure, my
brain just keep [sic] hurting. For a couple hours before it, um, before it gets back to
normal.”
Detectives later interviewed defendant and Choua together. When asked why
defendant killed Mirabelle, mother and daughter mentioned “spirits,” and later clarified
that “spirits” referenced “possession” by her seizure, not that “spirits made her do it.”
On March 18, Detectives Brian Dedonder and Shrum interviewed defendant;
excerpts were played for the jury. Defendant said she picked up Mirabelle and gave her a
pacifier at approximately 1:00 p.m. She experienced a “flashback” and had a seizure a

12
few seconds later. She did not remember anything that happened until approximately
2:00 p.m. She was with the baby in the bedroom when she awoke; she could smell urine.
When defendant noticed Mirabelle’s face was injured, she ran from the bedroom into the
front room and through the kitchen.
On March 22, Detective Hanspeter Merten interviewed defendant; a redacted
recording was played for the jury. Defendant told Merten she generally ends up on the
floor after a seizure, and she lies there until she has enough energy to get up. Her family
has never told her she does anything unusual after a seizure. Defendant said that
Mirabelle did not typically cry much, but she was crying more than normal that morning.
She repeatedly denied being frustrated by Mirabelle’s crying, but she agreed with Merten
that she was “[a] little bit” frustrated because Mirabelle would not fall asleep, and she had
work to do.
Defendant told Merten in response to his question as to whether she had ever
wanted to “physically hurt someone” that she had thought about hurting herself when she
was 14 or 15 years old after she began having seizures. She never thought about hurting
anyone else. She had not had those feelings since Mirabelle’s birth. Merten asked
defendant again if thoughts of killing herself had “gone through your mind here lately
like in the last few months[;] I mean, after the - you know, the birth of your daughter or
anything where you just become so frustrated?” Defendant responded, “No.” Defendant
again denied thoughts of harming herself, despite the fact that her seizures continued to
occur while she took medicine to treat them. Finally, she acknowledged that thoughts of
harming herself were “still there” now, but she did not act on them because of her three
boys.6

6 It is unclear in this exchange whether defendant was admitting she thought of harming
herself before--rather than after--killing Mirabelle, as when she discussed her children,
she specified her three boys, and agreed with Merten that they were young and needed
their mother.

13
 Additional Statements by Defendant
On March 18, Chi spoke with defendant at the police station; the conversation was
recorded. The conversation was in Hmong and was later translated into English. A
translated transcript of the conversation was used by the prosecutor to refresh Chi’s
recollection of the conversation during his trial testimony, but it was not admitted into
evidence. Chi testified that “some of the words we said they translated correctly. Some
words was [sic] not.” He was not asked for specifics.7 He agreed with the prosecutor
(who was reading from the translated transcript) that defendant told him at the police
station, “[T]he spirit called me. So I had a seizure,” and that she fell on the baby,
possibly on the heater. He said defendant did not remember what happened. She said
that before the seizure, Mirabelle was moving her eyes back and forth looking at
something, was crying, and was spitting out her pacifier. She told him a “spirit and
demon together”--he said the term defendant used is difficult to translate into English--
was looking at her through the window; he first testified defendant saw a Caucasian
demon or spirit outside staring at her and the baby through the window “at a different
time” than when she saw Mirabelle’s eyes moving back and forth, but he later agreed
with the prosecutor that it was at the same time. Defendant also told him the demon or

7 The parties disagree as to the relevance of the transcript and whether it is properly
referenced in this appeal, given that it appears in the appellate record but was not
admitted into evidence at trial. After disputing its relevance in earlier briefing, the
Attorney General quotes the transcript at length in opposition to defendant’s motion to
strike portions of the Attorney General’s brief. Defendant argues we may consider the
transcript because the prosecutor’s use to refresh Chi’s recollection at trial indicates that
the prosecutor treated it as accurate. We agree with the Attorney General that we should
only rely on those portions of the transcript that were read into evidence; however, we
agree with defendant that where reference to the transcript’s contents is necessary to
counter an apparent mistake or misrepresentation regarding the state of the evidence, we
will reference the transcript and note the reference.

14
spirit was walking around outside of the house and wanted the baby.8 He agreed
defendant did not say the spirit made her do anything, and that she had no history of
talking about spirits or demons.
Chi clarified on cross examination that he did not interpret defendant’s statements
as attempting to place blame for the killing on a “Caucasian.” Rather, Chi agreed
defendant’s discussion of spirits or demons was her attempt to piece together an
explanation for what happened. Some people in Hmong culture believe that “epilepsy is
the spirit invading the body,” or is a manifestation of spiritual or demonic possession,
although Chi did not hold that belief and did not think much of it, crudely dismissing it as
“BS and horseshit.”
Three days before trial, the prosecutor and his investigator interviewed Chi, and
excerpts were played for the jury. Chi referenced “demons” when discussing defendant’s
claim to have had a seizure. He said defendant told him (in Hmong) that there was a
good demon at the front of the house and a bad demon at the back of the house.
Defendant said the demon made her kill Mirabelle. Chi spoke to defendant again the next
day, and she told him again that “a demon made me do this and that.” Chi explained in
the interview that defendant was “saying she had a seizure and at the point the demon
took . . . over her body and made her do what she did.”
Choua testified at trial that defendant’s references to a spirit or demon were related
to things defendant’s brother Kao had told her. Defendant told Choua she did not want to
repeat what Kao had told her about the house being built on a cemetery, or about a ghost
that was watching her and was going to take the kids and take her, for fear of appearing

8 According to the translated transcript of Chi’s conversation with defendant, defendant
clearly stated that her brother Kao (Kob) had told her that a “Caucasian guy” kept
looking at her from outside before she was pregnant. The transcript also reflects that
defendant told Chi that she had had a dream about a Caucasian man. Neither attorney
used the transcript to refresh Chi’s recollection on this point.

15
crazy. Choua testified the term “spirit” is used in the Hmong term for “seizure.” Choua
does not use that term, and she did not teach defendant that spirits are involved with
seizures. According to Choua, defendant differentiated between seizures and demons.
Va testified that defendant sat with family members trying to figure out what had
happened a day or two after the killing. She said she did not know what happened and
that she blacked out while sitting at the computer. Defendant said in the week after the
killing that she saw spirits, but she did not specify the day or whether she saw them
before the killing, and she did not connect the spirits or demons to the killing in any way.
Defendant did not mention Mirabelle’s eyes moving.
Kao spoke to defendant before and after Mirabelle’s death. Defendant told Kao
she had a seizure and did not know what happened. She did not mention anything about
spirits or demons, although she did tell him about a dream she had involving “spirits and
stuff like that.” Defendant did not tell Kao that a spirit or demon made her do anything.
Defendant did not mention to Kao that Mirabelle’s eyes were moving back and forth on
the day of her death, and she did not mention any shadows. Kao testified he did not feel
comfortable discussing spirits because he is not an elder, and that is something elders
should talk about.
In an April 2011 interview with an employee from child protective services (CPS),
defendant again said she was sitting with Mirabelle, “went blank” while working at the
computer, and woke up in bed with the baby. The employee testified defendant said that
she had seen a black shadow moving around her house, but did not clarify the date and
time of the sighting and the employee did not ask any follow up questions. The
employee did not ask whether the sighting was before or after the baby’s death or any
other specifics.9

9 In her motion to strike portions of the Attorney General’s brief, defendant asserts that
the briefing impermissibly infers from this testimony that she “described specific visual
hallucinations to . . . the CPS worker and said she experienced them right before

16
 Expert Testimony Regarding Epilepsy
Seizures are caused by abnormal electrical discharges in the brain and can be
caused by head trauma, stroke, brain infection, brain tumors, or genetic causes. They can
be partial or generalized. Partial seizures can be simple or complex. A simple partial
seizure affects a specific portion of the brain, which may affect a specific body part, such
as a shaking hand, but does not cause loss of consciousness. A complex partial seizure
spreads to both sides of the brain and involves a partial loss of consciousness, or loss of
contact with the environment, where the patient appears to be awake with a blank stare
and may exhibit automatic movements. A complex partial seizure will not cause a person
to fall to the ground and shake. A person suffering from a complex partial seizure may
walk around and perform simple tasks--like smacking their lips or getting undressed--
without being aware of what they are doing, but they cannot perform complex tasks. A
complex partial seizure can evolve into a secondary generalized convulsion, where there
is a total loss of consciousness. The patient will collapse, stiffen, and jerk, and may bite
their tongue, foam at their mouth, and empty their bladder.
A generalized onset seizure, which does not evolve from a partial seizure, results
in an immediate loss of consciousness; a generalized tonic-clonic seizure is a type of
generalized onset seizure and will cause the patient to stiffen and fall (tonic stiffening)
and jerk (clonic). A patient who loses consciousness during such a seizure does not
remember what has happened. At trial, experts testifying for the prosecution and defense
testified the convulsive portion of a generalized tonic-clonic seizure is typically between
one and two minutes (Treiman) or 45 seconds to two minutes (Garcia). Some patients

Mirabelle was killed.” The Attorney General responds that it is reasonable to infer from
the CPS worker’s testimony that defendant saw the shadow before she killed Mirabelle
because defendant used nearly identical phrasing when speaking to Chi. We disagree.
Chi did not testify that defendant mentioned a “shadow,” and therefore defendant did not
use “nearly identical phrasing.” Further, the CPS worker testified that she did not ask
defendant when she saw the shadow, and defendant did not say.

17
experience a flash before a seizure. Witnesses often overestimate the duration of a
seizure.
A person can have more than one type of seizure as part of their epilepsy, but their
epilepsy does not change over time, and a person tends to have the same types of seizures
over time. A person who consistently experiences generalized onset seizures is not going
to experience partial seizures, which are caused by a different kind of epilepsy. But it is
possible, although not common, to suffer from both types. The type of epilepsy a person
has is often determined by relying on people who have observed the person’s seizures.
After most seizures, the person enters into a recovery period known as the
“postictal” stage. If the seizure resulted in a loss of contact with the environment or
complete unconsciousness, the person remains comatose or close to comatose while
gradually regaining consciousness. The person has more control over their behavior as
the postictal stage progresses. People can engage in automatic behavior--or wildly
confused behaviors--while in a postictal state without being conscious of it. Some people
remain motionless following a seizure, while some are able to get up and start doing
things. A person recovering in a postictal state may seem dazed and in a state of
confusion; they may seem oriented as to some things but not have all of their senses back.
While uncommon, people can get up and walk around, take off their clothes, or even
drive a car. A person in the early postictal stages would not be able to do a complex task
such as operate a computer program or a microwave oven requiring input of a specific
sequence of numbers.
Dr. David Treiman, a neurologist with a subspecialty in epilepsy, testified as a
prosecution witness. Based on his review of defendant’s medical history, Dr. Treiman
concluded defendant’s seizures are always generalized onset, resulting in her falling to
the ground, exhibiting bilateral extremity movement, and tonic-clonic activity, followed
by at least a 10 to 20 or maybe a 30 minute postictal period. He had only seen tongue
biting with tonic-clonic seizures, not complex partial seizures. He would not assume that

18
her seizures would change from her typical seizure, and he saw nothing to suggest
defendant experienced any other kind of seizure before this incident.
When initially asked by the district attorney’s office to evaluate the case, Dr.
Treiman had opined that it was possible that defendant had a seizure and was in an
unconscious state when she put Mirabelle in the microwave. He advised the district
attorney’s office: “Should not prosecute for murder. Enough probability exists that
[defendant] may have had a seizure.” However, Dr. Treiman later “further refined” his
opinion based on close attention to the “precise timeline.” At trial, he concluded it would
not be medically supported to claim that defendant, given her medical history, could have
made a complex entry into her computer at 1:58 p.m., had a seizure, put the baby in the
microwave in a confused state, punched a series of complex numbers, brought the baby to
Choua at 2:09 p.m., asked a coherent question about her baby, and been in a state of full
and complete recovery by 2:10 p.m. to 2:12 p.m. such that no one noticed she was in a
postictal state. Rather, Dr. Treiman would have expected defendant to still be on the
ground five to 10 minutes after the seizure, and she would be experiencing confusion for
20 to 30 minutes after the seizure.
Dr. Paul Garcia, a neurologist, testified for the defense after originally having been
hired by the prosecution. Dr. Garcia reviewed defendant’s medical records, and he
opined that defendant had a history of all three kinds of seizures, but that only the tonic-
clonic seizures were reported by people who had witnessed her seizures. Dr. Garcia
testified detectives told him they saw an injury to the side of defendant’s tongue, and he
noted biting the side of the tongue is most commonly associated with a partial seizure
that does not become a tonic-clonic seizure. Additionally, Dr. Garcia observed that
defendant’s medical records included a prior normal electroencephalogram (EEG), and
the fact that her medication did not suppress her seizures suggested she suffered from
partial seizures.

19
 Dr. Garcia discussed partial seizures that have spread into enough brain area that a
person “isn’t completely cognizant of what is going on around them, and yet they have
enough together so that they could still do some automatic things.” Following such a
seizure, some patients are able to get up and start doing things in a very confused state.
The postictal state can vary from person to person and from seizure to seizure for a
particular person. Dr. Garcia testified the postictal state for a partial seizure can be as
short as one to three minutes. Some people bounce back quickly following a tonic-clonic
seizure, but it can take others up to 30 minutes to recover.
Dr. Garcia opined it was possible defendant put Mirabelle in the microwave either
during a complex partial seizure or while in a postictal state, and that she seized and
recovered within the 10 minutes between Va’s departure from the house and Choua’s
discovery of her and the baby in the doorway. It would not be unusual for a person who
has a complex partial seizure to engage in “automatic behaviors or disorganized confused
behaviors,” and Dr. Garcia testified the act of putting an item in the microwave, hitting
random buttons, and removing the item would not be uncommon. Whether a person
could operate a microwave depends on the number of buttons that must be pushed; it
would be easy to start a microwave operated by a single button, but it would not be
possible to program the oven with many buttons in a complicated combination.
Dr. Garcia allowed that it would be remarkably rare for a postictal mother to put
her baby in the microwave and activate it; he agreed that “it would be like two comets
colliding, just absolutely incredible” because of how rare it would be for those events to
coincide. He agreed that he had been given information by law enforcement (when
originally contacted by them for his opinion on her claim to have had a seizure) regarding
defendant’s “social factors,” such as her lack of a criminal history, employed status,
family support and the like. But he indicated that his opinion of whether an action was
possible as a result of a seizure “stems only from watching people have seizures.”

20
 Expert Testimony Regarding Postpartum Mental Disorders
Dr. Angela Vickers testified for the prosecution (over defendant’s objection, as we
discuss in detail post) about postpartum mental disorders. Dr. Vickers, who specializes in
child abuse and neglect, was Mirabelle’s pediatrician. She had received special training
in child abuse, child neglect, and postpartum mental disorders. She kept up to date on the
medical literature relating to postpartum depression, and she screened mothers in the
hospital during well baby visits. She was the medical director of the Child Abuse
Program for Sacramento County, which evaluated suspected cases of child abuse and
neglect. In that role she trained other pediatricians on how to screen new mothers who
are at risk for developing postpartum depression as a means of preventing child neglect
and abuse.
Dr. Vickers had no special training in psychiatry or psychology and was
admittedly not qualified to render an opinion as to whether someone suffers from
postpartum depression or psychosis. She had never testified as an expert regarding
postpartum mental disorders.
Dr. Vickers testified that a few days after Mirabelle was born, defendant screened
negative for postpartum mental disorders. She did not believe defendant exhibited signs
of postpartum depression during Mirabelle’s examination, although she did not and could
not opine as to whether defendant had ever suffered from a postpartum mental disorder.
She testified postpartum depression is an underdiagnosed obstetric complication in the
United States. Many mothers are reluctant to admit to symptoms of postpartum
depression or are unable to identify their feelings. There is no way to ensure a mother
tells her doctor about symptoms. Dr. Vickers cited one study in which 80 percent of
mothers failed to report their postpartum symptoms, and another in which only 32 percent
out of 78 patients with postpartum depression believed they suffered from the disorder.
Dr. Vickers testified that there are three types of postpartum mental disorders:
postpartum blues, postpartum depression, and postpartum psychosis. After delivery, 40

21
to 60 percent--up to 80 percent in some studies--of mothers suffer from postpartum blues,
or a temporary feeling of sadness that lasts for a few weeks and goes away after four to
five weeks. The cause of this condition is unknown, but it could be related to a
combination of sleep deprivation and hormonal changes.
Depression-like symptoms persisting for a few weeks are consistent with
postpartum depression. Postpartum depression meets specific diagnostic criteria and
presents in the first year of a child’s life. Symptoms of postpartum depression include
difficulty sleeping, changes in appetite, anger, agitation, inability to concentrate, periods
of crying with no explanation, and disruptions of daily life. The causes of postpartum
depression are unknown, but they may relate to hormonal changes or genetic
predisposition to depression.
Several stressors have been identified as risk factors for developing postpartum
depression, including a history of depression, current symptoms of depression, the youth
of the mother, stress, immigration status, unplanned or unwanted pregnancy, death of a
parent, marital discord, domestic violence, unemployment, lack of social or financial
support, single motherhood, complications of pregnancy, sick leave during pregnancy, a
colicky baby (defined as a baby who cries unconsolably and persistently for hours, rather
than a baby who is fussy or who cries intermittently), not breastfeeding, and the mother’s
introverted personality. More than one risk factor is usually required for postpartum
depression, but the exact number of risk factors required to develop postpartum
depression is unknown.
Dr. Vickers agreed on cross-examination that--as was defendant’s situation--if a
mother were not a teenager, had family support, was already a mother of three, planned
her pregnancy, was not impoverished, had no recent deaths in her family, had no reports
from family that she appeared depressed or overwhelmed, and had no history of marital
discord, domestic violence, depression or mental illness, it would be less likely she
suffered from a postpartum mental disorder. She recognized that defendant’s status as an

22
immigrant was “probably not” a stressor because she is a United States citizen, born here,
and speaks English, but she stated there are many factors related to immigration that can
cause stress in a family. Dr. Vickers also agreed that a mother’s choice to not breastfeed
is personal, and the seizure medication defendant took could factor into that decision.
She agreed the risk of an inconsolable baby is minimized where the mother has support in
the home, as defendant did in this case.
Postpartum depression increases the risk of injury to the baby, and screening for
postpartum depression is intended to reduce the risk of child abuse or neglect. Mothers
who are not depressed may abuse their babies, but a mother with postpartum depression
may be less likely to tolerate the stress caused by a baby crying inconsolably.
Postpartum psychosis is very rare, very serious, and results from the progression
of postpartum depression; it does not appear one day and disappear the next. Symptoms
of postpartum psychosis include auditory hallucinations, visual hallucinations,
disorientation, paranoia, thoughts of harming the child, not knowing who or where she is,
rapid mood changes, irritability, psychomotor agitation, severe insomnia, and profound
symptoms of mental illness. Postpartum psychosis occurs within the first year of the
child’s life, but commonly presents within the first two weeks after birth. Dr. Vickers
had no information to suggest that defendant had any of the risk factors for psychosis.
An infant faces significant risk of injury or death if her mother suffers from
postpartum psychosis because a psychotic mother may intentionally try to harm the child.
A mother with postpartum mental disorders is not necessarily going to kill her child; it is
rare for a mother with postpartum depression to kill her child and more common for a
mother with postpartum psychosis to do so. Although mothers without any postpartum
disorders may also kill their children, 41 percent of women who suffered from mental
illness thought of harming their child, compared to only seven percent of mothers with no
mental illness.

23
 Dr. Vickers agreed that a hypothetical person believing there were a Caucasian
spirit or demon looking into the window would be experiencing a hallucination or a
delusion, but she testified a hypothetical eight-week-old baby could track something
around the room with her eyes. She agreed, however, that the perception of a baby
tracking her eyes around the room could be a maternal delusion resulting from
postpartum psychosis.
Defense Neurology Expert Evidence
Dr. Phillip Resnick, a physician specializing in psychiatry, testified for the
defense.10 Dr. Resnick testified his research identified five reasons why a mother would
kill her child: (1) an unwanted child; (2) revenge against the spouse; (3) overzealous
discipline; (4) altruism (saving a child from a fate worse than death); and (5) acute
psychotic or postictal state without comprehensible motive.
Dr. Resnick interviewed defendant and her family members, and he reviewed the
police reports and defendant’s medical records. He testified there was no evidence that
defendant killed Mirabelle because she was an unwanted child, to take revenge against
Chi, due to overzealous discipline, or as misplaced altruism.
Dr. Resnick testified that defendant’s medical records and interviews with her
family did not suggest she had experienced symptoms of depression before the killing.
She denied auditory and visual hallucinations to the police and in his interview with her.
He observed she had never experienced any delusional beliefs, experienced any
hallucinations, or had any history of mental illness. Dr. Resnick acknowledged defendant
experienced suicidal ideation as a teenager when she first began suffering from seizures,

10 As we discuss post, Dr. Resnick was called by the defense out of order (during the
prosecution’s case) due to a scheduling issue, and was added as a defense witness only
after the trial court ruled over defendant’s objection that Dr. Vickers would be permitted
to testify for the prosecution as an expert witness on postpartum mental disorders as
motive evidence.

24
but he did not consider that significant. Accordingly, he opined there was no evidence
defendant suffered from postpartum depression, postpartum psychosis--the symptoms of
which are extreme and would have been obvious to anyone around her--or any other
mental illness before Mirabelle’s death. He further observed any symptoms of
depression defendant exhibited after Mirabelle’s death were not evidence of depression at
the time of death; depression is expected after losing a child, being accused of killing the
child, and being incarcerated.
Dr. Resnick was not an expert in the area of epilepsy, but he had training in
neurology and the effect epilepsy can have on a person. He had studied epilepsy in
connection with cases of child killings. Dr. Resnick could not “rule in” a seizure as the
cause of Mirabelle’s death, but he could not rule it out. Accordingly, he opined
defendant most likely killed Mirabelle while in a postictal state following a seizure. He
testified that people are able to engage in over-learned behavior, like using a microwave,
while in this state. He characterized the inconsistent statements given by defendant
regarding the cause of Mirabelle’s injuries as probable speculation, “trying to make sense
out of a confused period.”
The trial court earlier ruled defendant’s psychological records were privileged and
declined to disclose them to the prosecution. But the prosecutor announced that same
morning, immediately prior to Dr. Resnick’s testimony, that he received and reviewed a
portion of those records the previous day. During the morning recess, taken prior to Dr.
Resnick’s cross-examination, the prosecutor sought permission from the court to “go into
psych records that I do have.” The court gave its permission, and, at the noon recess
(after which the cross-examination of Dr. Resnick continued), it also ordered disclosure
to the prosecutor of any remaining records referencing “psychiatric issues or
psychological issues” not already inadvertently disclosed. We discuss this series of
events in greater detail in the Discussion section of our opinion, post, as it is the subject
of one of the claims of error on which we focus.

25
 On cross-examination Dr. Resnick testified that he had not received any of
defendant’s psychological records in advance of trial, although he had asked for them,
and he acknowledged he would want to know if defendant had suffered from auditory
hallucinations before testifying that defendant experienced no symptoms of psychosis.
He acknowledged that during the recess that had just concluded, he received several
pages of records “from the jail after the event.” The prosecutor asked him about a
notation that defendant reported “auditory perceptual experiences,” and he denied the
prosecutor’s assertion that this was a report of hallucinations; rather, the term could
signal how “during an aura of an epileptic seizure, people can see and hear things.” He
noted there was no diagnosis of psychosis, and defendant’s classification per the records
as “adjustment disorder with depressive mood” was “what happens when people are put
in jail after losing a child. They get depressed because it is a tough adjustment.” The
records also noted defendant had described “a return of auditory hallucinations,” and had
stated after having a seizure in custody that she “hoped she would never wake up.”
After the prosecutor received the remainder of the psychiatric records over the
noon recess, he questioned Dr. Resnick at length about psychiatric disorders and statistics
related to the correlation between psychiatric disorders and infanticide. Dr. Resnick
testified that the mere presence of hallucinations does not render the sufferer psychotic,
indicating that 10 to 15 percent of the population experiences hallucinations. He was
asked about studies of depressed women as it related to thoughts of harming their
children and about colic; he testified 70 percent of mothers with colicky infants
experience explicit aggressive thoughts toward their infants, and 26 percent of them had
infanticidal thoughts during the colicky episode. However, he added that there was no
evidence that Mirabelle was a colicky baby, which is defined as a baby who cries for
more than three hours after being changed, comforted, and fed, and which continues for
weeks or months.

26
 When asked about undiagnosed postpartum psychosis, Dr. Resnick emphasized
that postpartum psychosis “is really quite dramatic” and is “not something that goes
unnoticed”; those who suffer from that affliction “are very very sick.” He added that
transcripts of defendant interviewing with detectives show “no evidence of postpartum
psychosis,” and confirmed that seeing her baby’s eyes moving back and forth and
possibly seeing a man looking through the window would not be examples of paranoia,
which is a “delusional belief that one is being conspired against and someone wishes
them harm.”
After verifying that Dr. Resnick had not seen the newly disclosed psychological
records before the noon recess, the prosecutor questioned him with jail records indicating
that, in August 2011, defendant reported experiencing auditory hallucinations after
Mirabelle’s birth. The prosecutor read into record Exhibit 134, which indicated
defendant said: “There were voices that were talking in her head, and she would try and
cope with them by trying to push them out and not pay attention to them, and which she
said was successful, at times. [¶] Other times she reports it was like someone was
coming up behind her. She said that she had told her husband this and a priest that had
come to the house after the death of their daughter. She said they told her it was only in
her head and not to pay attention to it. [¶] During this period after the daughter’s birth,
she said she was not eating as much, had an increase in [auditory hallucinations], an
increase in seizures, but did not feel very depressed. [¶] She said after her daughter’s
death, the [auditory hallucinations] and seizures decreased, and she felt more depressed.
[¶] She said that she did not tell others about her experience with [auditory
hallucinations] because of fears of being told she was ‘crazy.’ ” The same note stated:
“[Defendant] describes psychotic-like [symptoms] that occurred following birth of her
daughter. Reports these have gone away at this time. Still some slight depression, but
reports improvement in this area also.”

27
 A psychiatric service note from September 2011 stated that defendant “reported at
that time she had a report of experiencing auditory hallucinations prior to coming into
custody.” The note continued, “she does report one episode of her experiencing the
auditory hallucinations she had prior to coming into custody, saying the voice had told
her, I’m back again, but no other interaction.” A note from December 2011 read in part,
“[s]he told jail psychiatric services that about one week after she had given birth to
Mirabelle, she began to hear some auditory hallucinations.”
Dr. Resnick testified that this new information was important. He again clarified
that auditory hallucinations may or may not be psychotic; nonpsychotic hallucinations are
not uncommon. Five or more symptoms of postpartum depression must be present
during the same two-week period to support a diagnosis, and he still did not believe
defendant was suffering from postpartum depression. He observed there was no evidence
defendant could not function in her day to day life, which is true of a person suffering
from psychosis. Finally, he noted: “[T]he medical observers, the home observers, her
own report, no one points to depression in this case. [¶] For [the prosecutor] to raise it,
he’s raising it, but there’s no evidence of it.”
Prosecutor’s Closing Argument
In his closing argument, the prosecutor highlighted evidence he contended
supported the finding that defendant suffered from postpartum psychosis. He argued that
the jury should ignore the fact that defendant was not diagnosed with a postpartum
mental disorder because postpartum mental disorders are underdiagnosed. Instead, he
asserted that defendant experienced hallucinations, was overly stressed, was frustrated
with Mirabelle’s crying to the point the frustration turned to anger, had “depression
issues” and “suicidal issues,” and was introverted.
He pointed to the testimony about a Caucasian spirit or demon looking through the
window, Mirabelle’s rolling eyes, and defendant’s priest coming to talk to her. For
example, the prosecutor argued: “Is she concerned that there’s [sic] demons possessing,

28
something in the eyes of Mirabelle? Or is she concerned about herself or thought about
killing herself because she had this seizure disorder, she’s had those thoughts run through
her mind and now her little baby girl is here?” He added: “Is she concerned about the
demons and the cemetery that the house was built on? Is she psychotic? Is she just
somebody hearing voices that told her to kill. Does she have postpartum issues?”
In another instance, the prosecutor argued: “Why are Mirabelle’s eyes moving?
What is she watching? The Caucasian guy outside the window or the spirit?” He added:
“These eyes moving have nothing to do with something innocent like a baby just tracking
a fly, because otherwise she would not keep connecting up with this: [¶] I’m scared. We
believe in God. I go to a Mormon church.”
The prosecutor pointed to defendant’s statements to Chi and Choua: “Her
statement to her husband on [March] 18th: [¶] A Caucasian spirit/demon is outside the
window watching. A demon possessed her and that’s why she did it. [¶] The statement
to her mother: [¶] She said, We live on a cemetery. We can’t tell them the truth. They
will think we are crazy. [¶] There is evidence here.” He contended that defendant told
Chi “the demons made her do it. The spirits made her do it, and she’s not referring to
seizures as spirits. She’s saying demons made her do it. That’s what she tells her
husband.” He argued: “it is clear that she was having issues as it related to hearing those
voices, issues that are related to demons. [¶] She got up from her computer, and she
goes in, and she gets the demons out of her daughter.” He speculated that a voice in
defendant’s head told her to “[g]o put your child in the microwave.”
In rebuttal, the prosecutor asserted: “The defense doesn’t want you to embrace
that she had auditory hallucinations. [¶] It was just a little auditory hallucination. Who
cares.” He stated, “[u]nlike Dr. Resnick, who is just gonna say, I don’t care about the
psychiatric records where she talks about having hallucinations, you should consider that
evidence.” Later he added: “The defense wants to not embrace it. Dr. Resnick wants to
say it doesn’t have anything to do with this case, but you know better, because . . .

29
something must be going on there. [¶] And it is. It relates to the spirits, to the demons,
to the fact that she’s hearing these voices.”
The prosecutor relied on the statistic that 41 percent of women with mental illness
had thoughts of harming their child compared with seven percent of mothers in a control
group, and in rebuttal he referred to studies showing that mothers with “psychiatric
issues” are especially prone to have thoughts of “killing their child.” He then read entries
from defendant’s psychiatric file while commenting that the entries exhibited defendant’s
psychiatric issues and constituted factors related to postpartum depression. He added that
a crying baby can increase a mother’s frustration.
Jury Verdict and Sentence
The jury found defendant guilty of first degree murder (Pen. Code, § 187; count
one) and assault on a child, resulting in death (id., § 273ab; count two). The jury found
true the allegation that defendant personally used a deadly and dangerous weapon--a
microwave oven--within the meaning of Penal Code section 12022, subdivision (b)(1), in
connection with the murder charge.
The trial court denied defendant’s motion for new trial and sentenced her to 25
years to life in prison on count one, plus one-year for the weapon-use enhancement. The
court imposed a sentence of 25 years to life on count two and stayed sentence pursuant to
Penal Code section 654. Defendant timely appealed.
DISCUSSION
I
Expert Testimony of Postpartum Mental Disorders
Defendant contends the trial court abused its discretion by permitting the
prosecution to introduce the testimony of Dr. Vickers regarding postpartum mental
disorders. As relevant to our analysis, defendant argues the testimony was not supported
by any evidence specific to defendant and her condition, and thus was irrelevant as
devoid of any factual bases. She adds that even if relevant, Dr. Vickers’ testimony was

30
more prejudicial than probative due to its low probative value given the lack of diagnosis
and its highly prejudicial nature as impermissible character and propensity evidence.
As we will explain, we agree the trial court abused its discretion by admitting the
challenged testimony for these reasons, to which timely objections were lodged at trial,
although we disagree with defendant’s assertion that Dr. Vickers was not qualified to
testify as she did. Because we find abuse of discretion on the grounds we have stated, we
do not address defendant’s additional claims of error regarding this testimony, which
include that the testimony was improper evidence of diminished capacity; that evidence
of postpartum depression is not proper “motive” evidence; that the risk factor evidence
constituted a “criminal profile”; and that the testimony contained improper statistical
evidence.11
A. Procedural Background
In a trial brief filed on August 28, 2015, the People indicated their intent to call
Dr. Vickers regarding “the nature of post-partum depression and the pediatric concerns
relating to it as it [sic] child abuse and neglect.” The defense subsequently moved to
exclude that testimony and any reference to postpartum depression, arguing it was
without factual basis and no reports had been received. In their response thereto, the
People argued the testimony was relevant to the issue of motive and that because Drs.
Garcia and Treiman could not “rule out” a postpartum mental disorder as motivation for
defendant’s conduct in killing her baby, Dr. Vickers’ testimony was “necessary.”
The prosecutor proffered the symptoms of postpartum psychosis from a website as
follows: confusion and disorientation, obsessive thoughts about the baby, hallucinations
and delusions, sleep disturbances, paranoia, and attempts to harm oneself or the baby.

11 Because we do not address these additional grounds, we need not and do not address
the Attorney General’s claim of forfeiture and defendant’s related claim of ineffective
assistance of counsel.

31
Applying those symptoms to the facts of this case, the prosecutor first proffered that
defendant was confused about what had happened to Mirabelle. He recognized defendant
blamed her confusion on a seizure, but contended this evidence was also consistent with
disorientation related to postpartum psychosis. He next contended defendant “clearly
suffered from obsessive thoughts about Mirabelle” because she had stated that Mirabelle
was crying and could not be soothed before the killing. He argued that defendant was
“clearly paranoid” the day of the killing, as she described a “spirit [that] was looking in
on her and took her baby.”
The prosecutor posited that defendant had experienced three hallucinations and
delusions, relying on Chi’s recollection of his conversation with defendant after the
killing. He argued defendant’s seeming agreement with the detective in an interview that
she had considered self-harm in the recent past constituted evidence of attempts to harm
herself, and her killing of Mirabelle was evidence of attempts to harm her children, thus
there was evidence of attempted self-harm and attempted harm to her children that
evidenced postpartum mental disorders. Finally, he contended that, “from a common
sense point of view, most jurors are aware of post partum depression and a few
commented on it in the questionnaire. The jurors will naturally want and appropriately
need to know if there are factors that support post partum depression or psychosis.”
At the first hearing on the motion, held on the first day of trial, August 31, 2015,
the prosecutor argued the testimony would provide a “logical explanation” for
defendant’s act; the defense objected on relevance and prejudice grounds, and also to late
discovery. The prosecutor clarified he disclosed the plan to call Dr. Vickers to defense
the week before the hearing; the trial court reserved ruling. At a later hearing, defense
counsel reiterated that the planned testimony was “a new thing” that she had only learned
about two weeks before, and indicated she was not prepared to counter the testimony for
that reason. She argued again there was no evidence defendant was suffering from
postpartum depression, the planned testimony would be without foundation, and it would

32
encourage the jury to speculate. The prosecutor argued that postpartum depression was
“an explanation” for the killing, and the issue had come up in juror questionnaires (which
had already been disseminated and collected). He argued that because “everyone says
this was unexpected,” testimony about postpartum mental disorders would provide a
“logical explanation.” He posited, “the fact that there’s no reason for her to do this
makes the evidence more powerful.” Defense counsel again responded that there was no
basis in fact to admit the evidence and that it would only encourage speculation; she
added that any probative value of the evidence would be substantially outweighed by the
risk the jury would assume without a factual basis that defendant suffered from a
postpartum mental disorder and would infer that she had a motive to kill. Defense
counsel argued that this theory “has never been on the screen” and that the prosecutor
“only recently spoke with Dr. Vickers,” adding that “there’s not been any ongoing belief
that postpartum depression played a role at all.” Instead, “the issue has always been
whether or not [the killing] was the product of the seizure disorder.” The defense also
asserted the evidence would amount to inadmissible propensity evidence inviting the jury
to speculate that there must be some evidence of a postpartum mental disorder given
certain character traits and tendencies shared by defendant and those afflicted with
postpartum disorders.
The prosecutor noted that (defense witness) Dr. Garcia “seems to also rely upon
other background or social factors” and that the doctor had “candidly told [the lawyers]
that if [defendant] doesn’t have a CPS history and she doesn’t have a criminal history and
she’s not a bad person” a seizure was more likely. Both lawyers noted that Drs. Garcia
and Treiman had indicated when recently asked by the prosecutor that postpartum mental
disorders were outside their area of expertise; defense counsel again stressed there was
simply no evidence defendant suffered from such disorder. The trial court again deferred
ruling.

33
 The next day, the trial court ruled without hearing further argument that “the
People are entitled to present reasonable evidence of possible motive” in the form of Dr.
Vickers’ testimony regarding postpartum mental disorders, as “[m]otive is a legitimate
consideration.” The court ultimately granted defense counsel a three-week continuance
to prepare for this new evidence.
Dr. Vickers later testified for the prosecution as we have outlined in detail ante.
B. Dr. Vickers as an Expert Witness
Defendant claims that Dr. Vickers lacked sufficient expertise to testify on the
subject of postpartum mental disorders. An expert witness may testify “[r]elated to a
subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.” (Evid. Code, § 801, subd. (a).)12 “ ‘The trial court’s
determination of whether a witness qualifies as an expert is a matter of discretion and will
not be disturbed absent a showing of manifest abuse. [Citation.] “ ‘Where a witness has
disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the
question of the degree of his knowledge goes more to the weight of the evidence than its
admissibility.’ ” ’ ” (People v. Eubanks (2011) 53 Cal.4th 110, 140.)
We agree with the Attorney General that Dr. Vickers had sufficient training and
experience to testify about the definitions of and differences between postpartum blues,
depression, and psychosis, which are topics beyond the common experience of the jury.
(See People v. Davis (2009) 46 Cal.4th 539, 605 [approving of expert testimony that the
defendant’s prior crimes, statements, and behavior were consistent with paraphilia, a
sexual disorder]; People v. Phillips (1981) 122 Cal.App.3d 69, 82-84 [approving of
expert testimony that the defendant’s conduct was consistent with Munchausen syndrome
by proxy].)

12 Further undesignated statutory references are to the Evidence Code.

34
 However, in both Davis and Phillips, the expert testimony related to the
defendant’s conduct and explained that the crime could have been motivated by the
disorder or the syndrome that was the subject of the expert testimony. (See People v.
Davis, supra, 46 Cal.4th at p. 605; People v. Phillips, supra, 122 Cal.App.3d at pp. 82-
83.) As we will explain, and unlike the expert witnesses in Davis and Phillips, Dr.
Vickers set forth no such coherent and relevant explanation for defendant’s conduct.
Indeed, she had no opinion about defendant’s motivation for the murder; in her relevant
contact with defendant, defendant showed no signs of postpartum mental disorders.
Instead, Dr. Vickers was called upon to testify to a laundry list of background and
character traits that were common to postpartum mental disorders. As we discuss post,
although we agree that Dr. Vickers was qualified to testify as she did, her testimony itself
was problematic.
C. Relevance and Factual Basis
Defendant claims that the evidence of postpartum mental disorders was irrelevant
because the People failed to present sufficient evidence that defendant was either
diagnosed with or exhibited any symptoms of a postpartum mental disorder. The
Attorney General responds that the trial court properly admitted Dr. Vickers’ testimony
because there was evidence that defendant had symptoms of postpartum psychosis, which
was relevant to prove her intent and motive. We agree that the testimony lacked
sufficient factual basis, as we now explain.
Only relevant evidence is admissible at trial. (§ 350.) Under section 210, relevant
evidence is evidence “having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.” Evidence is relevant if it
tends “ ‘ “logically, naturally, and by reasonable inference” to establish material facts
such as identity, intent, or motive.’ ” (People v. Williams (2008) 43 Cal.4th 584, 633.)
“The trial court has considerable discretion in determining the relevance of evidence.”
(Id. at p. 634.) Even if evidence is relevant, section 352 provides that a “court in its

35
discretion may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” “The term ‘prejudice,’ within the
meaning of . . . section 352, is not simply damage to the defense that naturally flows from
relevant and highly probative evidence, but is instead an emotional reaction that inflames
the jurors’ emotions, motivating them to have a bias against, or to prejudge, an individual
based on evidence that has only slight probative value on the issues. [Citations.] Under
that statute, evidence is substantially more prejudicial than probative if it poses an
intolerable risk to the fairness of the proceedings or the reliability of the outcome and
renders the defendant’s trial fundamentally unfair.” (People v. Chavez (2018) 22
Cal.App.5th 663, 702.)
It is often said that we review for abuse of discretion a trial court’s ruling on the
admissibility of evidence, including expert testimony. (See, e.g., People v. Brown (2016)
245 Cal.App.4th 140, 156.) However, we have explained before that “[t]he discretion
conferred upon the court ‘is a discretion, governed by legal rules, to do justice according
to law or to the analogies of the law, as near as may be.’ [Citation.] That is to say, the
range of judicial discretion is determined by analogy to the rules contained in the general
law and in the specific body or system of law in which the discretionary authority is
granted.” (County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778.) Accordingly,
we consider “(1) whether the challenged evidence satisfied the ‘relevancy’ requirement
set forth in . . . section 210, and (2) if the evidence was relevant, whether the trial court
abused its discretion under . . . section 352 in finding that the probative value of the
[evidence] was not substantially outweighed by the probability that its admission would
create a substantial danger of undue prejudice.” (People v. Scheid (1997) 16 Cal.4th 1,
13.)

36
 As we have described, here the prosecution sought to pursue through Dr. Vickers
the theory that defendant was motivated to kill by her undiagnosed postpartum psychosis.
That motive theory was the sole proffered relevance of Dr. Vickers’ testimony, although
she had actually screened defendant as negative for postpartum mental disorders after
Mirabelle’s birth. An expert’s testimony must have some factual connection to the case
in order to be relevant and helpful to the jury (§§ 350, 801, subd. (a)); accordingly, we
first analyze whether there is factual support for Dr. Vickers’ testimony.
The first of several factual bases proffered by the prosecutor was confusion about
what had happened to Mirabelle, which the prosecutor claimed was the equivalent of
disorientation related to postpartum psychosis. But there was no evidence that defendant
presented as confused or disoriented immediately after the killing. As we have described
in detail above, firefighters and law enforcement responding to the scene stated that
defendant told them she had suffered a seizure, and none of these first responders found
defendant to be confused or disoriented. They described her as alert and oriented. She
consistently told them that she did not know what happened to the baby because she had
a seizure. That is, she knew what happened--she had a seizure--but she did not know
how the baby was hurt, because of the seizure. The fact that this evidence was subject to
challenge in various ways does not in and of itself provide evidence that defendant was
disoriented. The prosecutor pointed to no evidence suggesting defendant was confused
or disoriented in the aftermath of the killing such that psychosis was suggested, and no
such evidence was introduced at trial.
The second basis was “obsessive thoughts about Mirabelle” based on the assertion
that defendant stated repeatedly that Mirabelle was crying more than usual on the day of
the killing and could not be soothed. Although there is limited evidence of Mirabelle
crying excessively (or “fussing”) on the day she died, there was no evidence that
defendant was excessively stressed, frustrated, or angry at Mirabelle for crying, and she
consistently denied any such feelings. She was asked multiple times in multiple

37
interviews about the baby’s excessive crying; the fact that she answered those questions,
and in the process was required to reference the crying at length, does not evidence the
“obsessive thoughts” proffered by the prosecutor, and there was no testimony opining
that it did. Further, although testimony about colicky babies and their negative effect on
their parents was elicited, there was no evidence that Mirabelle had colic as defined by
the experts at trial; indeed, all relevant testimony indicated that she did not have colic.
The third basis was evidence of three hallucinations and delusions, relying on
what defendant allegedly told Chi: (1) she believed a Caucasian man was peering in the
window the day she killed Mirabelle; (2) she said “the man which she also describes as a
spirit stated at some point ‘I took your daughter; I’m happy I took your daughter, are you
disappointed? Are you? Because you are not getting your daughter back’ ”;13 and
(3) she said Mirabelle’s eyes were moving back and forth in an odd manner. The
prosecutor added that Chi told investigators defendant had never spoken of a spirit or a
Caucasian man looking in her home or taking her child prior to the killing.
As we have described in detail above, there was some limited evidence of
hallucinations and delusions experienced by defendant around the time of the killing,
advanced by Chi and others. However, much of this evidence was qualified and
culturally associated, which lowered its probative value.
Portions of Chi’s conversation with the prosecutor and his investigator, which took
place three days before the 2015 trial, were introduced into evidence. Chi’s conversation
with the prosecutor and investigator involved Chi’s recollection of private conversations
between he and defendant in the days after the 2011 killing. The jury heard that Chi told
the prosecutor that when he spoke with defendant at the police station, she said “there’s

13 This is direct quote from defendant’s description to Chi of her dream, contained in the
translated transcript that we discussed ante. She twice explains the conversation as part
of a dream in the translated transcript.

38
[a] demon outside watching her,” there was a good demon at the front of the house and a
bad demon at the back of the house, and the demon made her kill Mirabelle.14 Chi said
he spoke with defendant the following day, and she again said the demon “made me do
this and that.” He explained, however, that she meant “[t]hat like she have a seizure . . . a
demon took over her body and she did - that she - made - made she do what she did.” He
clarified that she did not “remember the demon . . . making her do what she did.”
At trial, Chi testified that defendant told him the “spirit and demon together” was
looking at her through the window, was walking around outside of the house, and wanted
the baby, but she did not tell him that the spirit made her do anything. He testified that
she told him that before her seizure, Mirabelle was moving her eyes back and forth
looking at something, was crying, and was spitting out her pacifier. He first asserted that
she saw the apparition at a different time than when Mirabelle’s eyes were moving, but
then agreed it was around the same time. Chi testified defendant had no history of
talking about spirits or demons.
Chi recognized that some in Hmong culture believed that epilepsy is a
manifestation of spiritual or demonic possession, although he does not hold those beliefs.
He clarified that defendant’s discussion of spirits or demons was her attempt to piece
together an explanation for what happened. He agreed with the prosecutor that defendant
told him at the police station, “[T]he spirit called me. So I had a seizure.”
Choua testified that defendant’s discussions about spirits stemmed from what
defendant’s brother, Kao, told her.15 Defendant told Choua, “[i]f I tell them, they’ll think

14 As we discussed ante, the translated transcript does not support Chi’s characterization
of defendant’s statements.
15 This testimony is consistent with the translated transcript of defendant’s March 18
conversation with Chi, in which defendant stated: “I thought that Kob (or could be
[defendant’s brother] Kao) said the Caucasian guy outside keeps looking at me. When I
wasn’t pregnant yet, he kept on looking at me.” She continued, “Kob [or Kao] said he
has been watching me walking around from the bedroom and back. That spirit is very

39
we’re crazy because my brother -- that house, we don’t know what it’s built on. We
don’t know if it’s built on a cemetery or something?” Defendant said that her brother
said a ghost was watching her and the ghost was going to take the kids with her.16
Kao testified that defendant told him about a dream she had involving “spirits and
stuff like that.”17 Defendant did not tell Kao that a spirit or demon made her do anything.
After the incident, defendant told Va that she had seen spirits, but she did not specify
whether she saw spirits before or after the killing, and she did not say that the spirits
caused her to do anything; rather, she maintained she did not know what happened.
The prosecution also presented evidence of an interview defendant had with a CPS
worker more than a month after the killing. Defendant again said she did not know what
happened because she blacked out. Defendant said she saw a black shadow moving
around the house, but she did not specify whether she saw the shadow before or after the
seizure, or before or after she killed Mirabelle. The Attorney General contends it is
reasonable to infer that defendant saw the shadow before she killed Mirabelle because
she used “nearly identical phrasing” to describe the Caucasian spirit or demon to Chi.
But both Chi and the CPS worker were testifying as to their recollection of defendant’s

bad. Wherever I go, it goes and watches me from the window, said Kob. He/she said
with my daughter, why did I have so many seizures with her? With my boys, I didn’t
have that many seizures.”
16 The Attorney General suggests that defendant was merely hearing a voice that she
believed was her brother’s, which told her a ghost was watching her and was going to
take the kids and take her. There is no evidence of this.
17 This testimony is consistent with the translated transcript of defendant’s conversion
with Chi, in which she discussed having a dream the morning of March 18 about a
Caucasian man who “came and said to me ‘I took your daughter; I’m happy that I took
your daughter. Are you disappointed? Are you? Because you’re not getting your
daughter back.’ ”

40
statements, not her exact words.18 Additionally, the phrasing defendant was purported to
have used in both instances was not “nearly identical”; the terms “shadow” and “spirit” or
“demon” are not similar. Further, as we have detailed above, Dr. Resnick testified an
epilepsy patient can “see and hear things” “during an aura of an epileptic seizure.” The
shadow evidence was weak evidence of a possible hallucination at an unknown time, at
best.
Defendant’s statements about Mirabelle’s eyes moving back and forth is evidence
of a possible visual hallucination that was proffered and later supported by the evidence
at trial. But while it is possible defendant hallucinated Mirabelle’s eyes moving back and
forth, Dr. Vickers testified an eight-week-old infant could track something around the
room with her eyes, and she disagreed that perceiving an infant’s eye movement was
necessarily evidence of a hallucination.
There was certainly evidence at trial that, following Mirabelle’s death, defendant
discussed her experiences seeing, dreaming, and being told about spirits, demons, and
shadows. However, no expert witness testified that these experiences necessarily
constituted psychotic hallucinations, and Dr. Resnick testified that the mere presence of
hallucinations do not always render the sufferer psychotic. There was no evidence that
defendant was ever diagnosed with or treated for psychosis, despite testimony that such
an illness would have been obvious to everyone around her, and despite Dr. Vickers’
testimony that psychosis is not the kind of illness that would appear one day and
disappear the next. Indeed, in the hours and days after the killing, defendant interacted
with numerous first responders and law enforcement personnel, some of whom
interviewed her for hours on end, and none testified or otherwise indicated that defendant
presented as profoundly mentally ill, suggesting psychosis.

18 The translated transcript of defendant’s conversation with Chi does not reflect that
defendant observed a spirit or demon “walk around the house.”

41
 Accordingly, when considering the evidentiary value of the evidence of
hallucinations, we recognize both that there is evidence to support the finding that
defendant experienced hallucinations, but also evidence suggesting that defendant held
cultural, spiritual, or superstitious beliefs that a spirit or demon was causing her to have
seizures. Chi, who provided the strongest testimony suggesting that defendant
experienced hallucinations, explained in his conversation with the district attorney that
defendant was trying to say that a demon took over her body and caused her to have a
seizure, which made her do what she did. Chi also testified that defendant’s statements to
him were her attempt to piece together a justification for what happened. Thus, while we
agree there was some evidence of hallucinations, we conclude the probative value of that
evidence was substantially weakened by defendant’s other statements and her family’s
testimony regarding her beliefs, expert testimony that 10 to 15 percent of people
experience hallucinations and are not psychotic, and a conspicuous absence of other
evidence of psychosis.
Fourth, the prosecutor acknowledged there was no evidence of sleep disturbances,
but claimed defendant was “clearly paranoid that day” because she described a spirit
looking in on her and took her baby. As we have discussed, this proffer of paranoia is not
supported by the record and, even assuming the actions themselves were supported, the
resulting assertion of paranoia is not. The only testimony regarding paranoia came from
Dr. Resnick, who testified the baby’s eye movement and the possibility of someone
looking into the window did not constitute paranoia.
Fifth, the prosecutor offered his “most persuasive[ ]” evidence, that defendant
thought about harming herself or her baby. He quoted extensively from defendant’s
interview with Merten, which we have discussed in detail ante. As we have described,
although in that interview defendant admitted she had thoughts of harming herself due to
her untreated seizure disorder, she did not say she had thoughts of harming the baby or
her other children. There is simply no evidence of that. Instead, defendant expressly

42
denied any thoughts of harming her children; soon after Mirabelle’s death, defendant
stated she would not kill herself, specifically for the sake of her children. Additionally,
while defendant acknowledged she thought of killing herself at some point due to her
seizures, there is nothing to suggest these thoughts arose following Mirabelle’s birth,
much less that these thoughts arose as a symptom of postpartum psychosis.
The prosecutor attempted to bolster the evidence by arguing that defendant’s act of
killing her daughter suggests she suffered from undiagnosed postpartum psychosis, and
her undiagnosed postpartum psychosis caused her to kill her daughter. The prosecutor
asserted: “While [defendant] states it both ways in this portion of the conversation, it is
clear that she has thought about killing herself in the past and has contemplated killing
herself presently but has ruled it out for the sake of her children. We also know that she
did kill Mirabelle. Therefore, this symptom would also be consistent with [postpartum]
psychosis.” That assertion attempts to connect and extend defendant’s admitted thoughts
of self-harm to thoughts of harming her children, which she consistently denied, by virtue
of the fact that eventually defendant did indeed harm one of her children. This circular
argument did not provide any factual support for Dr. Vickers’ testimony.
Finally, the prosecution contended that “[t]he jurors will naturally want and
appropriately need to know if there are factors that support post partum depression or
psychosis.” We do not see the relevance of prospective jurors’ preconceptions about the
role of postpartum mental disorders in Mirabelle’s death in determining whether there is
evidence that defendant suffered from a postpartum mental disorder such that a
foundation for expert testimony was established.
The prosecution concluded by observing there is no single cause or symptom of
postpartum depression and asserted evidence of postpartum depression is therefore
supported. As we will discuss post, this argument foreshadowed Dr. Vickers’ testimony,
which invited the jury to find defendant suffered from an undiagnosed mental disorder
based on the application of any number of risk factors and symptoms--such as

43
socioeconomic and immigration status--not constituting a competent basis for such a
diagnosis. Viewed as a whole, the prosecution’s purported evidence of undiagnosed
postpartum psychosis was weak and speculative, based almost exclusively on the strained
assertion that defendant’s belief in spirits and use of such supernatural terms in reference
to her seizures, her dreams, and her statements about what other people told her
amounted to evidence of psychosis. The testimony was unsupported by sufficient factual
bases.
D. Propensity, Character, and Prejudice
Defendant contends that Dr. Vickers’ testimony, rather than tending to prove her
motive to commit a crime, amounted to improper character and propensity evidence
because it only tended to show that a mother with defendant’s characteristics is more
likely to develop a postpartum mental disorder, and a person suffering from a postpartum
mental disorder is more likely to harm her baby. Section 1101, subdivision (a) provides
that evidence of a person’s character or a trait of her character, whether in the form of an
opinion, evidence of reputation, or evidence of specific instances of her conduct, is not
admissible when offered to prove her conduct on a specific occasion. “The statute is
aimed at evidence of a person’s ‘propensity or disposition to engage in a certain type of
conduct,’ when ‘offered as a basis for an inference that [s]he behaved in conformity with
that character on a particular occasion.’ ” (People v. Gonzales (2012) 54 Cal.4th 1234,
1257 (Gonzales).)
The Attorney General responds that the prosecutor never intimated that defendant
was guilty due to a mental condition that caused her to have a propensity to kill, but
rather based his case on the evidence of defendant’s mental state and her conduct at the
time of the killing. Further, the Attorney General asserts that even if the evidence were
character or propensity evidence, evidence that defendant suffered from a postpartum

44
mental disorder was admissible as “uncharged conduct” under section 1101, subdivision
(b).19
In the absence of expertise regarding how to diagnose postpartum mental disorders
and the absence of such a diagnosis for defendant, who had screened normal, Dr. Vickers
provided a list of “risk factors” relevant to the development of postpartum depression.
She explained it is unknown what causes postpartum depression or how many risk factors
are required--although typically more than one--before a mother has postpartum
depression. She further informed the jury that postpartum mental disorders are greatly
underdiagnosed, meaning an absence of a diagnosis is not dispositive of (indeed, barely
relevant to) whether defendant suffered from a postpartum mental disorder. The effect of
this testimony was to inform the jury that defendant was at a higher risk of developing
postpartum depression due to factors such as stress in her life, her socioeconomic
status,20 her introverted personality, her decision to not breastfeed, and her status as a
member of an immigrant community. The testimony presented as a laundry list of
background and character traits that were common to postpartum mental disorders, and
suggested defendant was more likely to develop postpartum mental disorders due to
various character traits, which impermissibly and prejudicially bolstered otherwise weak
evidence of such disorders.

19 That subdivision provides: “Nothing in this section prohibits the admission of
evidence that a person committed a crime, civil wrong, or other act when relevant to
prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith
believe that the victim consented) other than his or her disposition to commit such an
act.”
20 There was evidence defendant and her husband had periodically been under financial
stress, and there was evidence defendant was applying for public assistance benefits on
the day she killed her daughter.

45
 Dr. Vickers then testified that 41 percent of mothers with mental illness think
about harming their babies, compared with seven percent of those not suffering from a
mental illness. The prosecutor relied on this statistic in both closing and in rebuttal, when
he referred to studies showing that mothers with “psychiatric issues” are especially prone
to have thoughts of “killing their child.” Although there was no evidence that Mirabelle
had colic, Dr. Vickers also testified that 70 percent of mothers with colicky infants
experience explicitly aggressive thoughts toward their infants, and 26 percent of them
had infanticidal thoughts during the colicky episode.
Evidence of these risk factors, and the testimony that mothers satisfying some
number of these risk factors are more likely to develop postpartum depression and
psychosis, amounted to character evidence prohibited by section 1101, subdivision (a).
The effect of the testimony was to invite the jury to apply these risk factors to defendant’s
character traits and find she was more likely to develop postpartum depression and
psychosis, and consequently was more likely to kill her daughter. Without their
application to defendant, these character traits--some highly personal, such as the
decision to breastfeed, and some incontrovertible, such as immigrant status and
introverted personality--were irrelevant.
In Gonzales, supra, 54 Cal.4th 1234 at page 1255, the defendant claimed the trial
court erred by refusing to allow him to introduce evidence that his wife witnessed and
experienced instances of child abuse for purposes of establishing third party liability for a
child abuse charge. Our Supreme Court upheld the trial court’s decision to exclude the
evidence as inadmissible character evidence under section 1101. (Gonzales, at p. 1257.)
The court recognized the purpose of the evidence was to invite the jury to infer that the
wife, rather than the defendant, was responsible for the abuse due to a propensity the wife
developed during her childhood, predisposing her to abuse her child. (Ibid.) Similarly,
here, the risk factor evidence invited the jury to find defendant had a propensity to
develop postpartum psychosis.

46
 The Attorney General argues the evidence was not used to show defendant’s
propensity to commit a crime. He contends Dr. Vickers did not testify that women with
postpartum disorders are more likely to commit crimes or testify defendant ever had
postpartum depression, blues, or psychosis, and he denies that the prosecutor intimated
defendant was guilty due to a mental condition. He further contends the instructions
given to the jury appropriately instructed the jury to not consider bias based on disability,
to assign weight to and disregard unbelievable, unreasonable, or unsupported expert
testimony, and to consider whether defendant had a motive to kill.21

21 The court instructed the jury with CALCRIM No. 200 in relevant part: “Do not let
bias, sympathy, prejudice or public opinion influence your decision. Bias includes, but is
not limited to, bias for or against the witnesses, attorneys or the defendant, based on
disability, gender, nationality, national origin, race or ethnicity, religion, gender identity,
sexual orientation, age or socioeconomic status.”
The court also instructed the jury with CALCRIM No. 332 in relevant part:
“Witnesses are allowed to testify as experts and to give opinions. . . . [¶] You must
consider the opinions, but you are not required to accept them as true or correct. The
meaning and importance or any opinion are for you to decide. [¶] In evaluating the
believability of an expert witness, follow the instructions about the believability of
witnesses generally. In addition, consider the expert’s knowledge, skill, experience,
training and education, the reasons the expert gave for any opinion and the facts or
information on which the expert relied in reaching that opinion. [¶] You must decide
whether information on which the expert relied was true and accurate. You may
disregard any opinion that you find unbelievable, unreasonable, or unsupported by the
evidence. [¶] [¶] If the expert witnesses disagreed with one another, you should weigh
each opinion against the others. You should examine the reasons given for each opinion
and the facts or other matters on which each witness relied. You may also compare the
experts’ qualifications.”
The court further instructed the jury with CALCRIM No. 370 in relevant part:
“The People are not required to prove that the defendant had a motive to commit any of
the crimes charged. In reaching your verdict, you may, however, consider whether the
defendant had a motive. Having a motive may be a factor tending to show that the
defendant is guilty. Not having a motive may be a factor tending to show the defendant
is not guilty.”

47
 We disagree that these pattern instructions were sufficient to neutralize the error.
Dr. Vickers testified that mothers with postpartum psychosis pose a “significant risk” of
“severe injury and death” to their babies and presented statistics about the increase of
explicitly aggressive thoughts in mentally ill mothers or those with colicky infants.
While these statistics do not confirm that mentally ill mothers often harm their children--
as opposed to often think about harming their children--the statistics generally support
Dr. Vickers’ testimony that children of mothers who are psychotic are at significant risk
of injury or death. Additionally, although the jury was instructed not to let bias or
prejudice affect its decision, the jury was also expressly told by Dr. Vickers that
defendant’s introverted personality, socioeconomic status, and ethnicity were legitimate
grounds on which to find she was more likely to develop postpartum depression and
psychosis, and thereby become a danger to her child. This made the jury much less likely
to consider those factors as signaling bias or prejudice despite proper instruction with
CALCRIM No. 200.
The Attorney General next argues that even if the testimony was inadmissible
character evidence, it was admissible as evidence of “uncharged conduct” under section
1101, subdivision (b). The Attorney General does not explain, and we do not see how,
the traits we have described constitute uncharged crime or other misconduct admissible
under section 1101, subdivision (b). (See Gonzales, supra, 54 Cal.4th at p. 1258
[evidence that third party internalized abuse she experienced as a child not a specific act
of misconduct; such evidence is “pure character evidence, well beyond the scope of
[§ 1101, subd. (b)]”].)
After conveying to the jury that defendant was at higher risk of developing
postpartum depression due to her character traits, Dr. Vickers then testified about the
symptoms of postpartum depression, including such broadly-worded categories as
difficulty sleeping, changes in appetite, anger, agitation, inability to concentrate, periods
of crying with no explanation, and disruptions of daily life. But Dr. Vickers did not, and

48
could not, testify about how those symptoms would factor into a competent diagnosis of
postpartum depression. Therefore, the jury was left with the understanding that
defendant was at a higher risk of developing postpartum depression, and she could have
suffered from postpartum depression if she, for example, had any trouble sleeping, had
any change in her appetite,22 or appeared agitated. No testimony informed the jury how
to assess the severity of these symptoms or which combinations of the general symptoms
were a sufficient basis on which to diagnose a mother of multiple young children with
postpartum depression.
Dr. Vickers then testified that postpartum psychosis develops from untreated
postpartum depression and that a history of postpartum mental health disorders is a risk
factor for developing postpartum psychosis. Thus the jury was informed that defendant
was at a higher risk of developing psychosis based on the general application of risk
factors and symptoms of postpartum depression.
Dr. Vickers explained the symptoms of postpartum psychosis, including auditory
hallucinations, visual hallucinations, disorientation, paranoia, thoughts of harming the
child, not knowing who or where they are, rapid mood changes, irritability, psychomotor
agitation, severe insomnia, and profound symptoms of mental illness. She testified that a
person who is experiencing a psychotic episode has become detached from their
circumstances or reality. Revisiting the prosecution’s asserted factual connection of
postpartum psychosis to the facts of this case demonstrates the marginal probative value
of this testimony. Before trial, the prosecution asserted evidence of psychosis included
obsessive thoughts about her baby crying and disorientation at the scene of the killing.
Through Dr. Vickers’ testimony, the jury was informed that defendant was at a higher

22 Dr. Resnick testified that a person must lose five percent of her body weight before a
loss of appetite is considered significant. There is no evidence that defendant suffered
clinically significant weight loss.

49
risk of developing postpartum psychosis due to character traits that might signal a
tendency to develop postpartum depression, because the depression was likely to go
untreated as it was likely to be undiagnosed. The jury was also told that defendant might
have suffered from postpartum psychosis because her daughter was crying more than
normal and because she informed first responders that she had a seizure and,
consequently, could not remember and did not know what happened to her daughter.
These are highly dubious factual connections that were supported only by Dr. Vickers’
testimony.
The Attorney General contends Dr. Vickers’ testimony was highly probative, and
the facts upon which Dr. Vickers’ testimony was based were not inflammatory,
extraneous, or irrelevant because that evidence was derived from defendant’s statements,
including those about spirits and demons, ghosts, a fear of cemeteries, black shadows,
and Mirabelle’s rolling eyes. But absent a credible foundation for determining defendant
suffered from a postpartum mental disorder, the jury was invited to find defendant was
more likely to develop postpartum psychosis in part due to her ethnicity, introverted
personality, and socioeconomic status. After making that foundational finding, the jury
was more likely to accept the prosecutor’s strained evidence of symptoms of postpartum
psychosis.
The prosecutor’s closing argument highlighted the purported evidence of
psychosis. He asserted the jury should consider that postpartum mental disorders are
underdiagnosed, implying an absence of a diagnosis was irrelevant to the determination
that defendant suffered from such disorder. He highlighted defendant’s admission of
having had auditory hallucinations,23 her thoughts of suicide, the Caucasian demon Chi
had referenced, Mirabelle’s eyes tracking around the room, and defendant’s fear of

23 We discuss the admissibility of psychological records relevant to defendant’s auditory
hallucinations, post.

50
demons and cemeteries. The prosecutor also contended defendant’s undiagnosed
psychosis made her more likely to kill her daughter, relying on the statistics cited by Dr.
Vickers. Dr. Vickers’ testimony provided a misleading foundation for this argument and
bolstered otherwise weak evidence of any symptoms of postpartum mental disorders.
The evidence was substantially more prejudicial than probative, due to its very limited
foundation and its tendency to mislead the jury, and the trial court abused its discretion
by permitting the challenged testimony.
We discuss the whether the error in admitting Dr. Vickers’ testimony was
harmless in Part III of our Discussion, post.
II
Psychotherapist Records
Defendant contends the prosecution was improperly granted access to her
privileged psychological records from her time in county jail in violation of the statutory
psychotherapist-patient privilege (§ 1014) and the constitutional right of privacy. She
further asserts the prosecutor improperly used confidential records inadvertently
delivered to him to convince the trial court to release defendant’s psychiatric file to the
prosecution after the court had already ruled that the records were privileged. The
Attorney General responds that defendant waived the psychotherapist-patient privilege by
tendering an unconsciousness defense, which he claims put her mental condition at issue
under the patient-litigant exception to the privilege. As we explain, we agree with
defendant.
A. Procedural Background
Both parties subpoenaed defendant’s medical and psychological records, including
her post-arrest records from the Sacramento County Jail. During argument on motions in
limine heard on October 6, 2015, during jury selection, defense counsel objected to the
disclosure of any psychiatric records and invoked the “patient/psychotherapist privilege.”
The prosecutor argued that defendant had put her mental state at issue with her defense,

51
to which defense counsel responded that she was raising medical state rather than mental
state, i.e. medical unconsciousness. The court observed that defendant was “asserting a
neurological rather than psychiatric problem”; defense counsel agreed with this
observation. The court took the matter under submission pending receipt and review of
the records.
At an October 13 hearing, the trial court concluded that defendant’s
psychotherapist-patient privilege was still intact, but defendant’s medical records related
to her epilepsy were relevant and not privileged. The court stated it continued to review
the records it received, and it had not yet reviewed any records subject to the
psychotherapist-patient privilege. On October 15, the court affirmed that the People were
entitled to defendant’s medical records related to her epilepsy. The court indicated it
would continue to review records from the jail to identify if any records were arguably
privileged, in which case it would entertain further argument from the parties as to the
production of those records. The court recognized its default would be to withhold from
the prosecution anything that looked like it could conceivably implicate privilege. On
October 20, the court stated that it had divided the jail records into three categories:
(1) records protected under the psychotherapist-patient privilege; (2) medical records
referring to defendant’s epilepsy that would be given to the prosecution; and (3) medical
records unrelated to the issues at trial that would not be given to the prosecution.
After obtaining the continuance following the trial court’s decision to allow Dr.
Vickers’ testimony, defendant secured the testimony of Dr. Resnick, whose testimony we
have outlined in detail ante, to rebut the prosecution’s theory, spearheaded by Dr.
Vickers’ testimony, that defendant was motivated to kill by hallucinations caused by an
undiagnosed postpartum mental disorder.
At a midtrial hearing held on October 29, 2015 (Thursday), the parties discussed
the proposed testimony by Dr. Resnick, anticipated to be presented out of order during
the prosecution’s case, due to a scheduling issue, on the following Monday (the next

52
court day). The prosecutor objected to Dr. Resnick’s proffered testimony that no
evidence suggested defendant had a motive to put her child in the microwave oven and
that a seizure was the most likely explanation for Mirabelle’s death. The court deferred
the issue to Monday. There was no mention of privilege or request to revisit the court’s
ruling thereon at this hearing. The prosecutor filed his points and authorities the
following Monday morning, seeking to limit defense expert testimony on the issue of
motive and to limit expert testimony putting hearsay before the jury; again, there was no
mention of access to documents previously ruled privileged.
The following Monday, November 2, the trial court ruled that Dr. Resnick could
testify as to his categories of infanticide (which we explained ante when detailing the
contents of his trial testimony), but he would not be permitted to offer an opinion as to
which one applied to defendant or whether defendant was conscious at the time of
Mirabelle’s death. After the court ruled, the prosecutor indicated he had sent the court a
request for defendant’s psychological records. He then disclosed that he had already
received and reviewed some psychological records, including a “psychological checklist,
where [defendant] is talking about depression. She’s got a depressive disorder. She has
referenced potential thoughts of harming herself.” The prosecutor argued if Dr. Resnick
testified defendant had no suicidal thoughts, psychological issues, or depression, he was
entitled to cross-examine Dr. Resnick with the relevant portions of defendant’s
psychological records that he (the prosecutor) had already reviewed.24 The court
indicated it was inclined to agree but would “hear the direct” before ruling. The court
stated that it had disclosed only “medical, non-psych records, but you’re saying there is

24 The prosecutor later clarified (on Wednesday, November 4) when defending the
subsequent motion for mistrial that he had “discovered on the Sunday [November 1] in
my preparation that there are a couple of pages that I had.”

53
some psych. I mean, I’m wondering if maybe some of the psych -- I’m wondering if
those records got segregated in the way I intended.”
Dr. Resnick then testified on direct examination as we have detailed ante.
During the morning recess, taken prior to Dr. Resnick’s cross-examination, the
prosecutor sought permission from the court to “go into psych records that I do have.”
He also requested the remainder of defendant’s records, arguing that defendant had “put[]
her mental state in issue.” He proffered to the court: “In the psych records, [defendant]
talks about auditory hallucinations. . . . [T]here was adjustment disorder with depressed
mood, depressive disorder nonspecific, moderate . . . . She has auditory hallucinations
. . . [¶] So at her entry into the jail, and a couple of times in the jail, it appears she had
some auditory hallucinations.”25
Over defense objection, the trial court allowed the prosecutor to go forward using
“whatever materials he has in the medical stuff that apparently includes some psych
relevant aspects, although my intention was to have pulled all that out. . . . I think we
failed in the endeavor.” The court also ordered disclosure of any remaining records
referencing “psychiatric issues or psychological issues” not already inadvertently
disclosed to the prosecutor, without detailing its reasoning in that regard, at the noon
recess.

25 This midmorning proffer seems inconsistent with the prosecutor’s later claim when
defending the motion for mistrial that he had discovered in the newly provided records
“something very critical, the fact that [defendant] had auditory hallucinations” at the
lunch recess that same day. However, he did appear to later qualify that “the critical
pages . . . where [defendant] had auditory hallucinations described on August 2nd, 2011,
in the records, those were only discovered be me in the new packet” that he had received
at the lunch break. Either way, it is clear that records referencing auditory hallucinations
were received and examined by the prosecutor before the court reversed its earlier ruling
prohibiting disclosure of the psychological records to him.

54
 The prosecutor then cross-examined Dr. Resnick with defendant’s psychological
records as we have detailed ante. The examination continued after the noon hour, by
which time the prosecutor had been provided with the privileged records in their entirety.
B. Affirmative Use of Documents Subject to Psychotherapist-Patient Privilege
We begin with defendant’s claim that the prosecutor excessively reviewed
defendant’s privileged psychological records inadvertently delivered to him by the court.
In the context of waiving the attorney-client privilege under section 912, which also
governs waiver of the psychotherapist-patient privilege under section 1014, the court in
State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 at pages 656 to 657
summarized the ethical obligation of an attorney who receives privileged documents due
to inadvertence: “ ‘When a lawyer who receives materials that obviously appear to be
subject to an attorney-client privilege or otherwise clearly appear to be confidential and
privileged and where it is reasonably apparent that the materials were provided or made
available through inadvertence, the lawyer receiving such materials should refrain from
examining the materials any more than is essential to ascertain if the materials are
privileged, and shall immediately notify the sender that he or she possesses material that
appears to be privileged. The parties may then proceed to resolve the situation by
agreement or may resort to the court for guidance with the benefit of protective orders
and other judicial intervention as may be justified.”
In Rico v. Mitsubishi Motors Corporation (2007) 42 Cal.4th 807 at page 817, our
Supreme Court agreed the State Fund rule is a “fair and reasonable approach.” The court
extended the State Fund rule to documents protected by the work product privilege, and it
observed the rule extends to “any other similar doctrine that would preclude discovery
based on the confidential nature of the document.” (Id. at p. 817, fn. 9.)
We recognize at the outset there is nothing to suggest the prosecutor intentionally
obtained any privileged psychological record; however, it is clear that he reviewed those
records he did receive. The first record referenced was entitled “psychological

55
checklist,” which clearly signaled its privileged status, and the prosecutor recited in open
court the diagnoses and symptoms reflected by the record. Upon realizing the privileged
nature of the record, the prosecutor should have stopped reading and followed the
procedure outlined by the cases referenced above.
As we have detailed ante, despite recognizing the prosecutor was not supposed to
have the record at all, the trial court allowed the prosecutor to affirmatively use the record
to cross-examine Dr. Resnick and also as a proffer to obtain disclosure of the remaining
records previously classified as protected from disclosure by the privilege. As we discuss
post, this was an abuse of the court’s discretion.
C. Psychotherapist-Patient Privilege and the Patient-Litigant Exception
A patient “has a privilege to refuse to disclose, and to prevent another from
disclosing, a confidential communication between patient and psychotherapist.”
(§ 1014.) The privilege covers “information, including information obtained by an
examination of the patient, transmitted between a patient and his psychotherapist in the
course of that relationship and in confidence . . . .” (§ 1012.) The prosecution bears the
burden of establishing a statutory exception applies where undisputed facts at trial show
the testimony involves confidential communications between a patient and a
psychotherapist. (People v. Gonzales (2013) 56 Cal.4th 353, 372.) “[T]he
psychotherapist-patient privilege is to be liberally construed in favor of the patient.”
(Roberts v. Superior Court (1973) 9 Cal.3d 330, 337 (Roberts).) “We have an ‘obligation
to construe narrowly any exception to the psychotherapist-patient privilege: we must
apply such an exception only when the patient’s case falls squarely within its ambit.’ ”
(People v. Wharton (1991) 53 Cal.3d 522, 554.) “The privilege is also considered
‘paramount to prosecution,’ generally outweighing the People’s interest in successful
prosecutions and their right to due process of law under article I, section 28, subdivision
(d) of the California Constitution.” (Story v. Superior Court (2003) 109 Cal.App.4th
1007, 1014.)

56
 Under the patient-litigant exception to the psychotherapist-patient privilege, there
is no privilege “as to a communication relevant to an issue concerning the mental or
emotional condition of the patient if such issue has been tendered by . . . [t]he patient.”
(§ 1016.) “There are two grounds for the patient-litigant exception. ‘First, the courts
have noted that the patient, in raising the issue of a specific ailment or condition in
litigation, in effect dispenses with the confidentiality of that ailment and may no longer
justifiably seek protection from the humiliation of its exposure. Second, the exception
represents a judgment that, in all fairness, a patient should not be permitted to establish a
claim while simultaneously foreclosing inquiry into relevant matters.’ ” (Manela v.
Superior Court (2009) 177 Cal.App.4th 1139, 1148-1149, italics added (Manela);
Roberts, supra, 9 Cal.3d at p. 337 [patient-litigant exception allows limited inquiry into
the confidences of the psychotherapist-patient relationship, compelling disclosure of only
those matters directly relevant to the nature of the specific “emotional or mental”
condition the patient voluntarily disclosed and tendered].) “ ‘Disclosure cannot be
compelled with respect to other aspects of the patient-litigant’s personality even though
they may, in some sense, be “relevant” to the substantive issues of litigation.’ ” (Roberts,
at p. 338.)
In In re Lifschutz (1970) 2 Cal.3d 415, at pages 435 to 437, our Supreme Court
elaborated on the parameters of the patient-litigant exception. The court recognized that
where a party institutes an action seeking redress for a specific mental or emotional injury
following an assault, such a limited waiver of the psychiatrist-patient privilege does not
extend to psychological records tending to show the party seeking damages had
previously “exhibited aggressive tendencies or had other personal attributes that might be
related to the assault.” (Id. at p. 435, fn. 21.) The court recognized, however, that in
some cases a party puts their entire mental condition in issue, and all psychological
records are relevant. (Id. at p. 435.) For example, a mental patient seeking a
determination they are no longer “ ‘dangerous’ ” or “ ‘violent’ ” has put their mental

57
condition in issue. (Id. at pp. 435-436, citing In re Cathey (1961) 55 Cal.2d 679, 691,
disapproved of on other grounds in In re Barnett (2003) 31 Cal.4th 466.) A criminal
defendant who tenders a defense based on evidence of a mental disorder may thereby
waive the privilege. (People v. Ledesma (2006) 39 Cal.4th 641, 659, 690 [diminished
capacity]; People v. Clark (1993) 5 Cal.4th 950, 1005 [“rage reaction” defense]; People
v. Montiel (1993) 5 Cal.4th 877, 923, disapproved of on other grounds by People v.
Sanchez (2016) 63 Cal.4th 665 [impaired mental condition].)
A patient loses the protection of the psychotherapist-patient privilege only if they
are first to “tender” the issue in litigation. In that regard, the court looks to see which
party was first to raise the issue. (Manela, supra, 177 Cal.App.4th at pp. 1149-1150.) A
party does not tender their mental condition simply by denying the opposing party’s
allegations regarding that condition. (Id. at p. 1149.) Pre-litigation statements made by a
person to authorities do not “tender” an issue “in litigation” within the meaning of the
patient-litigant exception. (Karen P. v. Superior Court (2011) 200 Cal.App.4th 908,
913.) Nor is there an “impeachment exception” to the psychotherapist-patient privilege.
(See, e.g., People v. Cannata (2015) 233 Cal.App.4th 1113, 1123 [patient does not waive
psychotherapist-patient privilege by testifying at trial where patient did not place his
“ ‘mental or emotional condition’ in issue at trial”].) We review a trial court’s discovery
order under an abuse of discretion standard. (Story v. Superior Court, supra,
109 Cal.App.4th at pp. 1013-1014.)
D. Application of the Patient-Litigant Exception
The parties agree, as do we, that defendant’s jail psychiatric records were
privileged under the psychotherapist-patient privilege. (§ 1014.) The parties dispute two
issues: (1) whether defendant’s assertion of the affirmative defense of unconsciousness
due to epileptic seizure put defendant’s mental condition at issue for purposes of waiving
the psychotherapist-patient privilege, and (2) if so, whether the scope of such a waiver
includes psychotherapist records regarding depression, auditory hallucinations, or other

58
evidence of postpartum mental disorders. We conclude that the scope of any such waiver
did not extend to the records disputed here.
The Attorney General argues the prosecution was broadly entitled to rebut
defendant’s unconsciousness defense with evidence of her mental condition. But we
must liberally construe the psychotherapist-patient privilege in defendant’s favor and
narrowly construe the patient-litigant exception to the privilege. (Roberts, supra, 9
Cal.3d at p. 337; People v. Wharton, supra, 53 Cal.3d at p. 554.) Accordingly, we
construe defendant’s unconsciousness defense as waiving her psychotherapist privilege
only for records narrowly and directly related to the specific issue of her consciousness.
Pursuant to that waiver and by way of hypothetical example, the People were entitled to
any psychological record stating defendant remembered killing Mirabelle, defendant
previously claimed unconsciousness, or defendant was diagnosed with some kind of
pathological compulsion to assert unconsciousness whenever confronted with her
misconduct. Such records would be directly related to the narrow issue of any mental
(rather than medical) component of defendant’s consciousness.
Here, the prosecutor, rather than defendant, tendered the issue of defendant’s
postpartum mental health; the People raised the issue and fought for admission of Dr.
Vickers’ testimony as well as defendant’s psychological records as evidence of motive
distinct from the question of defendant’s consciousness. This alternative theory sought to
affirmatively establish that defendant suffered from an undiagnosed postpartum mental
disorder that motivated her to kill. The records the prosecutor used to cross-examine Dr.
Resnick, concerning defendant’s post-killing diagnosis of a depressive disorder, evidence
of a reduced appetite after Mirabelle’s birth, and evidence she experienced auditory
hallucinations after Mirabelle’s birth, were only indirectly relevant, if at all, to the issue
of defendant’s consciousness. Therefore, assuming for the sake of argument that
unconsciousness related to epilepsy is to some extent a mental rather than a purely
medical condition, those records did not fall within the scope of the tendered condition.

59
 Because defendant did not waive her psychotherapist privilege with respect to her
psychological records, the trial court abused its discretion by disclosing the records to the
prosecution and allowing their utilization during cross-examination and for all purposes
subsequent to the records’ admission, including closing argument. As we have stated,
there is no “impeachment exception” to the psychotherapist-patient privilege. (See, e.g.,
People v. Cannata, supra, 233 Cal.App.4th at p. 1123.) That rule follows from the
commonsense proposition that a patient who has not put their mental condition in issue
does not waive their psychotherapist-patient privilege by denying an opposing party’s
allegations. (Manela, supra, 177 Cal.App.4th at pp. 1149-1150.) Indeed, an
impeachment exception to the psychotherapist-patient privilege would eviscerate the
privilege by allowing a party seeking to prove an allegation against a privilege holder by
putting the privilege holder’s mental condition in issue and make allegations related to
that condition. For example, here the prosecution put defendant’s mental condition at
issue by pursuing a motive theory that defendant suffered from postpartum psychosis. In
such a situation, the holder of the privilege would be required to either not refute the
allegation for fear of waiving the privilege, or refute the allegation and waive the
privilege. We decline to adopt such a rule.
Even if Dr. Vickers’ testimony had been properly admitted, that testimony was the
first to tender defendant’s mental condition. Until the time of Dr. Vickers’ testimony,
defendant had proffered only that she was unconscious due to an epileptic seizure.
Although the prosecutor referenced the “social factors” referenced by Dr. Garcia’s report
in his initial (and unsuccessful) argument to deem the privilege waived, these were not
mental state factors. Because the prosecution tendered defendant’s mental condition, the
psychological records remained privileged as previously ruled by the trial court unless the
defense elicited testimony about the records; it did not. (§§ 912, 1014, 1016.)
As we have described, here the prosecution circumvented the psychotherapist-
patient privilege by: (1) tendering defendant’s mental condition; (2) inadvertently

60
obtaining and improperly reviewing and revealing privileged psychological records;
(3) waiting for defendant to rebut testimony regarding the tendered mental condition; and
(4) demanding access to the privileged records to impeach defendant’s rebuttal witness.
That is exactly the situation the privilege is intended to protect against. The patient-
litigant exception applies where the patient-litigant herself tenders the mental condition,
not where the patient-litigant is forced to rebut the tendering party’s evidence regarding
her mental condition. The patient is not required to disclose her psychological records in
order to rebut the tendering party’s assertion. The disclosure of defendant’s privileged
psychological records was error. We discuss the whether this error was harmless in Part
III of our discussion, immediately post.
III
Cumulative Error
We requested and received supplemental briefing on the issue of cumulative error;
specifically, we asked whether errors in the admission of Dr. Vickers’ testimony
combined with errors in permitting disclosure of the privileged materials resulted in
prejudicial error when considered together. After careful consideration, we conclude that
we must answer that question in the affirmative, as we now explain.26

26 Defendant contends we should conduct our cumulative error analysis under the
standard set forth in Chapman v. California (1967) 386 U.S. 18 because the improper
breach of defendant’s psychotherapist-patient privilege violated her federal constitutional
right to privacy. As we will discuss, we conclude the cumulative effect of the violation
of defendant’s psychotherapist-patient privilege and the erroneous admission of Dr.
Vickers’ testimony constitute a miscarriage of justice, and therefore we do not address
defendant’s claim regarding the federal constitutional right to privacy. Further, the case
defendant relies upon for the proposition that cumulative error may be reviewed under
the Chapman standard of harmless error, People v. Sturm (2006) 37 Cal.4th 1218, 1244,
does not stand for that proposition. Rather, Sturm only concluded that the cumulative
effect of the trial judge’s comments in that case required reversal under either the
Chapman or Watson standard of review. (Ibid.)

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 A. Applicable Law and Framing of the Issue
A judgment shall not be reversed for the erroneous admission of evidence unless
the result is a miscarriage of justice. (Cal. Const., art. VI, § 13; § 353, subd. (b);
People v. Hill (1998) 17 Cal.4th 800, 844-845.) “Under the cumulative error doctrine,
the reviewing court must ‘review each allegation and assess the cumulative effect of any
errors to see if it is reasonably probable the jury would have reached a result more
favorable to defendant in their absence.’ [Citation.] When the cumulative effect of errors
deprives the defendant of a fair trial and due process, reversal is required.” (People v.
Williams (2009) 170 Cal.App.4th 587, 646; People v. Cunningham (2001) 25 Cal.4th
926, 1009 [series of trial errors, though independently harmless, “ ‘may in some
circumstances rise by accretion to the level of reversible and prejudicial error’ ”];
People v. Falsetta (1999) 21 Cal.4th 903, 913 [“The admission of relevant evidence will
not offend due process unless the evidence is so prejudicial as to render the defendant’s
trial fundamentally unfair”].) Additionally, multiple errors may create a “negative
synergistic effect, rendering the degree of overall unfairness to defendant more than that
flowing from the sum of the individual errors.” (People v. Hill, supra, 17 Cal.4th at p.
847; see also People v. Hernandez (1977) 70 Cal.App.3d 271, 281 [combination of two
errors prejudicial due to synergistic effect of the errors]; People v. Cuccia (2002) 97
Cal.App.4th 785, 795; People v. Holt (1984) 37 Cal.3d 436, 449-456 [cumulative
prejudice from multiple errors relating to defendant’s credibility].)
Under this standard, which is expressed in substantially the same manner as the
review for prejudice required by People v. Watson (1956) 46 Cal.2d 818, there is a
reasonable probability of a more favorable result when there exists “at least such an equal
balance of reasonable probabilities as to leave the court in serious doubt as to whether the
error affected the result.” (Id. at p. 837.) Under Watson, our review “ ‘focuses not on
what a reasonable jury could do, but what such a jury is likely to have done in the absence
of the error under consideration. In making that evaluation, an appellate court may

62
consider, among other things, whether the evidence supporting the existing judgment is
so relatively strong, and the evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which the defendant complains
affected the result.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 956.) The cumulative
prejudice doctrine is based on an examination of the “entire record.” (Delzell v. Day
(1950) 36 Cal.2d 349, 351.)
As we have discussed, the prosecution first tendered defendant’s mental condition
by informing the trial court and the defense of its intent to pursue a postpartum mental
health theory through Dr. Vickers. The court permitted Dr. Vickers’ testimony as
proffered, which, as we concluded ante, was error. Defendant then sought and received a
three week continuance (or perhaps more accurately a break in the trial, as jury selection
had already begun), specifically to locate a witness to counter Dr. Vickers’ testimony and
the resulting implication that defendant was motivated to kill by a postpartum mental
disorder. There is no dispute that Dr. Resnick would not have been called to testify by
the defense but for the need to counter the mental state evidence tendered by the
prosecution as motive evidence. At the conclusion of Dr. Resnick’s direct examination,
the prosecutor sought to cross examine him based on privileged information that the
prosecutor had inadvertently received but purposefully reviewed; the prosecutor then
sought and received further and complete disclosure of the privileged material based on a
proffer that utilized the privileged records inadvertently disclosed. The trial court then
permitted the disclosure and use of the entirety of the records as evidence at trial; as we
have concluded ante, this disclosure and use was error.
Faced with these multiple errors, we now address the issue of resulting prejudice.
B. Relative Strength of Defendant’s Unconsciousness Defense
Because the relevant law that we have outlined above requires us to assess the
probable results of a trial that excludes the erroneously admitted evidence, we begin with
a brief analysis of the strength of defendant’s unconsciousness defense. We acknowledge

63
that the jury rejected this defense, but we also consider that it did so after hearing the
erroneously admitted evidence. The Attorney General contends that defendant presented
insufficient evidence of unconsciousness such that it simply could not have provided her
with a defense to the charges. We disagree.
As we have described at length ante, from the time of the killing and onward,
defendant consistently asserted that she experienced a seizure just before the killing and
did not remember the killing itself. Defense expert Dr. Garcia testified that defendant
suffered from focal, complex partial, and generalized onset seizures and that postictal
stages could last from as little as two minutes to up to 30 minutes. Dr. Garcia recognized
that defendant’s medical records included a prior normal EEG, and the fact that her
medication did not suppress her seizures suggested she suffered from partial seizures.
Dr. Garcia also observed that he was told by law enforcement that defendant reported
biting one side of her tongue, which is consistent with complex partial--not generalized
onset--seizures. Additionally, defendant’s sister-in-law and brother, Kao, testified that
defendant’s seizures were not always the same, and that she would sometimes “just kind
of blank out for several minutes,” or experience a “fast seizure.” Thus, there is
substantial evidence that defendant did not only suffer from generalized onset seizures,
but that she also suffered from complex partial seizures.
Dr. Garcia further testified that patients in a postictal state can place unusual items
in unusual places, such as drawers, refrigerators, or toilets. He opined that defendant had
sufficient time to have had a complex partial seizure, operate the microwave, and recover.
Dr. Treiman, the prosecution’s expert, opined that defendant did not suffer from
complex partial seizures because that condition was inconsistent with her history.
However, even if defendant had experienced a generalized onset seizure, multiple
witnesses to defendant’s generalized onset seizures testified that defendant would
sometimes attempt to get up right after having a seizure, but would be told to stay down.

64
This suggests that, in the absence of onlookers telling her otherwise, defendant attempted
to get up and move around very quickly after having seizures in some instances.
The Attorney General contends that defendant’s conduct was too complex to have
been performed in a postictal state. He asserts that defendant was working on her
computer until the moment she left for the kitchen, navigated with Mirabelle across the
living room and to the microwave, opened it and placed Mirabelle inside, closed the door,
and operated the microwave. She then waited for the microwave to stop running,
removed Mirabelle, closed the door, and went to find her mother.27 She then told Choua
that they needed to take the baby to the hospital and later performed mouth-to-mouth
breathing on Mirabelle.28
Dr. Treiman testified that ambulatory automatism in epileptics is uncommon, and
it was unlikely that defendant’s behavior could be completed by a person in a postictal
state. But even Dr. Treiman initially expressed the opinion that defendant should not be
prosecuted for murder because there was enough evidence that she acted while
unconscious. Moreover, while Dr. Treiman opined at trial that the time between
defendant’s last act on her computer and the time she found her mother was insufficient

27 The Attorney General contends that defendant removed Mirabelle’s blanket before
putting her in the microwave and then put the blanket back on her after taking her out.
While the evidence shows that Mirabelle presented as swaddled both before and after she
was killed, that does not support the assertion that defendant removed the blanket before
putting her in the microwave and put it back on after the killing. The Attorney General
also asserts that defendant consciously realized she could not seek help from Va because
he was gone. That assertion reads too much into defendant’s statements to law
enforcement, which we have described ante, wherein defendant provided an after-the-fact
justification for why she did not seek out Va. There is no evidence that defendant
thought about Va as she sought her mother.
28 The Attorney General also contends that defendant performed chest compressions, but
after hearing the 911 call, Va testified that he performed the chest compressions.
Additionally, defendant asserted that she performed these activities after she had regained
consciousness, so we do not consider those activities as taking place during defendant’s
alleged period of unconsciousness.

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for her to have had a seizure, perform the acts required to kill her daughter, and fully
recover by the time Va returned home from picking up defendant’s sons from school, his
conclusion was based on his opinion that defendant only suffered from generalized onset
seizures, an opinion with which Dr. Garcia disagreed.
We recognize that defendant’s unconsciousness defense relies on a factual
scenario the parties and expert witnesses agree is uncommon and even highly unlikely.
However, there was substantial evidence from which a reasonable jury could have found
that defendant killed her daughter while unconscious.
C. Relative Strength of the Prosecutor’s Case
We next address the strength of the prosecutor’s case for defendant’s conscious
killing of her baby as charged, without consideration of the erroneously admitted
evidence.
The Attorney General contends that it is reasonably probable that the jury would
have found that defendant “experienced something other than a seizure on the day she
killed Mirabelle” even without the evidence at issue. But that is not our standard of
review. Instead, we review for the reasonable probability that absent the errors the jury
would have done something less than unanimously find defendant guilty as charged.
(See People v. Williams, supra, 170 Cal.App.4th at p. 646 [we review each allegation and
assess the cumulative effect of the errors to see “ ‘if it is reasonably probable the jury
would have reached a result more favorable to defendant in their absence’ ”].)
According to the Attorney General, “even in the absence of the evidence at issue,
the prosecution would have theorized that appellant was conscious and did not suffer
from a seizure. It would have argued that she did not have a seizure but suffered some
sort of mental break that caused her to be highly anxious and paranoid, hallucinate a
demon, and, in connection with her frustration with her daughter’s incessant crying,
resulted in the murder.”

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 Certainly it was within the jury’s prerogative to credit the testimony of Dr.
Treiman over Dr. Garcia, despite the issues with that testimony as we have discussed, and
conclude that defendant simply could not have done what she did while unconscious
from suffering a seizure. And we do not disagree with the Attorney General when he
asserts that: “[h]uman behavior, including extreme violence, can be unexplainable.
Thus, based on the evidence, it would not be unreasonable for the jury to conclude that
[defendant] did not experience a seizure and was, instead, conscious.” Indeed, the jury
could reasonably have concluded defendant was conscious.
But if the prosecution’s counter to the unconsciousness claim were to be based on
“some sort of mental break” as described by the Attorney General, the evidence
supporting the theory would have been quite weak. We have discussed at length the
absence of the evidence suggesting defendant was paranoid, frustrated, overwhelmed,
and highly anxious, and the weakness of the evidence suggesting she was hallucinating
spirits, shadows, or demons during the relevant time periods. That evidence becomes
markedly weaker without Dr. Vickers’ testimony providing context to connect the
evidence to a possible mental condition, and the psychological records providing
necessary credibility to otherwise weak and inconsistent evidence.
The Attorney General contends that, even in the absence of the inadmissible
testimony, Dr. Vickers would have been permitted to testify as an expert in child abuse
and neglect that crying from an inconsolable child can make a parent frustrated and
possibly violent. He argues that Dr. Vickers would have testified that 70 percent of
mothers with colicky infants experience explicit aggressive thoughts toward their infants,
and 26 percent of those mothers have infanticidal thoughts during the colicky episode.
We do not necessarily agree with that assertion. There was no evidence Mirabelle
suffered from colic, which renders the evidence of aggressive tendencies of mothers of
colicky babies irrelevant. Further, here there is little to no evidence that defendant was

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frustrated with Mirabelle’s crying, or even that Mirabelle was crying inconsolably or
incessantly at any point during the relevant time period.
The Attorney General also asserts that Dr. Vickers would have been entitled to
testify that one risk factor associated with infanticide is mental illness in general. But
again, before introducing that testimony, the prosecutor would be required to demonstrate
that defendant suffered from mental illness to establish its relevance. It is undisputed that
defendant was never diagnosed with mental illness before the killing, and no witness,
expert or otherwise, testified that she was mentally ill. The evidence of defendant’s
discussion of demons and spirits with her husband, about which the record is confused to
say the least, her vague statement to the CPS worker about a shadow, and her statements
to Kao, Va, and Choua were as likely to demonstrate defendant’s spiritual or superstitious
beliefs and her culturally-based tendency to attribute her epilepsy and resulting seizures
to outside or supernatural forces as they were to demonstrate that defendant was suffering
from mental illness.
The Attorney General further contends that it is reasonably likely the jury found
defendant not credible after watching hours of her videotaped interviews with law
enforcement, and that the jury could have concluded her statements to first responders
and law enforcement evidenced a consciousness of guilt. Alternatively, the Attorney
General posits that defendant might have put Mirabelle in the microwave to warm her up,
pointing to testimony that defendant thought Mirabelle felt cold that day, and she thought
warming the baby up would get her to stop crying.
Again, we do not disagree that there may be explanations for defendant’s conduct
other than postpartum psychosis or an epileptic seizure. But it is our task to assess the
relative strength of the prosecution’s case for a conscious killing of Mirabelle absent the
erroneously admitted evidence. Here, that case is markedly weaker than when bolstered
by the disputed evidence. However, in order to decide whether it appears reasonably
likely the jury would have accepted the unconsciousness defense over these alternate

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theories of culpability, we next look at any negative synergistic effect of the errors to
assess the likelihood that the jury relied on the erroneously admitted evidence in reaching
its decision.
D. Negative Synergistic Effect of the Errors
The prosecution introduced Dr. Vickers’ testimony to prove its theory defendant
was motivated to kill her daughter due to an undiagnosed postpartum mental disorder.
As we have discussed, this testimony offered an alternative explanation for the killing,
both to explain why an otherwise loving mother would commit such a heinous act, and
indirectly to decrease the likelihood that defendant was unconscious when she killed
Mirabelle. That evidence was erroneously admitted as the factual basis was deficient and
the resulting testimony was far more prejudicial than probative, in part due to its reliance
on defendant’s character traits.
The factual basis of Dr. Vickers’ testimony was substantially strengthened,
however, when the trial court permitted the mid-trial introduction of the privileged
psychological records after having previously excluded them. The psychological records
provided essential, credible support for Dr. Vickers’ testimony regarding postpartum
mental disorders, and Dr. Vickers’ testimony provided necessary context for the
psychological records.29 Thus, there is a strong negative synergistic effect in that the
erroneous pretrial admission of Dr. Vickers’ testimony regarding postpartum mental
disorders combined with the erroneous mid-trial admission of the privileged records to
support the prosecution’s alternative motive theory of postpartum psychosis.
The prosecutor recognized the relationship between the postpartum mental
disorder testimony and the psychological records evidence, reminding the jurors in

29 As just one example, Dr. Vickers testified that “hearing voices” is a symptom of
postpartum psychosis that puts a baby at significant risk of injury or death, and the only
indication that defendant had ever experienced auditory hallucinations came from the
privileged records.

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closing that 41 percent of depressed mothers think about harming their child. In rebuttal,
the prosecutor referred to studies showing that mothers with “psychiatric issues” are
especially prone to have thoughts of “killing their child,” and he then read entries from
defendant’s psychological file while commenting, “[t]hat’s a psychiatric issue,” “[t]hat’s
a psychiatric issue,” and “[s]ounds like one of those factors related to postpartum
depression.” These arguments expressly and prejudicially applied defendant’s
improperly admitted psychological records to Dr. Vickers’ testimony about postpartum
mental disorders.
Not only did the psychological records bridge an important gap in the
prosecution’s motive theory, they also bolstered the prosecution’s weak evidence of
psychosis. After the jury was informed (during the presentation of the prosecutor’s case-
in-chief) that defendant had admitted experiencing auditory hallucinations to her
psychotherapist, her other statements regarding spirits, demons, cemeteries, and ghosts
became more likely to reflect evidence of psychotic hallucinations rather than merely
reflecting superstitions or spiritual beliefs. Similarly, evidence of loss of appetite and
speculation about general irritability and frustration with crying took on elevated
importance; the records provided the foothold that the prosecutor needed to argue the
motive theory outlined by Dr. Vickers. The prosecutor took full advantage of that
foothold, as we have described above, relying on the records to trumpet defendant’s
multiple “psychiatric issues” to the jury during argument and tie those “issues” to the
statistics presented by Dr. Vickers showing likelihood of maternal violence.
Moreover, the manner by which the psychological records evidence was admitted
focused the jury’s attention on the evidence and amplified its importance. The
introduction of the evidence in the middle of Dr. Resnick’s testimony--after he testified
that he saw no evidence defendant suffered from any psychiatric symptoms--suggested to
the jury that Dr. Resnick was either ill-informed, unwilling to consider all of the evidence
when forming his opinion, or both. In closing, the prosecutor recognized that Dr.

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Resnick requested defendant’s psychiatric records, but he did not receive the jail file. He
also asserted that Dr. Resnick did not care about the psychiatric records, and he
rhetorically wondered “[h]ow good is his opinion if he doesn’t have all the evidence?”
The manner in which the evidence was introduced also had the effect of
discrediting defense counsel by suggesting that she deliberately hid highly relevant
records from Dr. Resnick and from the jury. The prosecutor highlighted this argument in
closing as well, asserting that defense counsel “does not want you, the jury, Dr. Resnick
or Dr. Vickers to consider that she may have had depression, psychosis, frustration, sleep
and appetite issues.” The prosecutor also used the psychological records to argue that
defendant showed consciousness of guilt by lying to Dr. Resnick about her hallucinations
so her epilepsy would be the only way to explain the killing. The effect of the unveiling
of previously undisclosed evidence during Dr. Resnick’s testimony and confronting him
with it also occurred before the defense presented any other evidence, including that of its
own expert on seizure disorders, Dr. Garcia. Dr. Resnick was made to look unprepared
in a manner that potentially lessened any persuasive impact of his testimony and any
testimony from defense witnesses who followed him.30
Accordingly, the introduction of the psychological records within the context of
Dr. Vickers’ testimony served to enhance the likelihood that defendant was psychotic
while simultaneously discrediting defense counsel, defendant, and her defense. Thus, we
conclude it is likely the jury relied on the evidence introduced as a result of the errors.

30 At the hearing on defendant’s motion for mistrial following Dr. Resnick’s testimony,
the trial court indicated that it “underst[ood] the concern” about “the jury wondering
possibly about the timing of the records and why Dr. Resnick had not seen the records
before” and “encourage[d]” the lawyers to prepare a stipulation resolving the concerns. It
appears a stipulation was reached regarding certain dates and provided to the jury
together with additional stipulations at the close of evidence, but neither party argues on
appeal that the stipulation mitigated the prejudice in any way and after reviewing the
stipulation we see no reason to believe that it did.

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 E. Miscarriage of Justice and Deprivation of a Fair Trial
As we have explained above, the defense of unconsciousness was supported and
could have been accepted by the jury absent the errors we have described. Further, the
prosecutor’s remaining theories explaining the conscious killing of Mirabelle absent the
errors were weak. The alternative theory that defendant suffered some other kind of
psychotic break is substantially less persuasive than the postpartum disorder theory, as
erroneously admitted. It is reasonably likely at least one member of the jury would have
accepted the unconsciousness defense over the weaker psychotic break theory or any of
the lesser theories suggested by the Attorney General, but for the errors and the cascade
of resulting effects we have described. Finally, as we have just explained, there was a
negative synergistic effect to the errors, making it highly likely that the jury relied on the
errors in rejecting the defense of unconscious killing and embracing the theory of
postpartum psychosis.
This case was centered on a killing that seemingly could be explained only in
terms of implausible theories, such as postpartum psychosis, automatisms caused by
epilepsy, a sudden psychotic break, or some other inexplicable and sudden change in
behavior. Vastly and unfairly increasing the likelihood of one implausible theory made it
inherently less likely that a different implausible theory best explained the killing. The
evidentiary errors, taken together, fundamentally affected the outcome of the trial, and it
is reasonably probable the jury would have reached a result more favorable to defendant
in their absence. Based on the foregoing, we conclude that the evidentiary errors
constituted cumulative prejudicial error, resulting in a miscarriage of justice and
depriving defendant of a fair trial. This conclusion requires that we reverse the judgment.

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 DISPOSITION
The judgment is reversed.

/s/
Duarte, Acting P. J.

We concur:

/s/
Hoch, J.

/s/
Renner, J.

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