People v. Nieves

11 Cal.5th 404

485 P.3d 457

278 Cal.Rptr.3d 40

The PEOPLE, Plaintiff and Respondent,

v.Sandi Dawn NIEVES, Defendant and Appellant.

S092410

Supreme Court of California.

May 3, 2021

Amitai Schwartz, under appointment by the Supreme Court, and Moira Duvernay, Emeryville, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Lance E. Winters, Chief Assistant Attorneys General, Pamela C. Hamanaka and James William Bilderback II, Assistant Attorneys General, Keith H. Borjon, Mary Sanchez, Jaime L. Fuster and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Cantil-Sakauye, C.J.

A jury convicted Sandi Dawn Nieves of the first degree murder of her daughters Nikolet Amber Nieves, Rashel Hollie Nieves, Kristl Dawn Folden, and Jaqlene Marie Folden ( Pen. Code, § 187 ),¹ attempted murder of her son, F.D. ( §§ 664, 187 ), and arson ( § 451, subd. (b) ). The jury found true the special circumstance allegations that defendant committed multiple murders, and that each murder was committed while lying in wait and while engaged in the crime of arson. ( § 190.2, subds. (a)(3), (a)(15), (a)(17).) Following the penalty phase of trial, the jury returned a verdict of death. The trial court denied defendant's motion to modify the death penalty verdict and her motion for a new trial (§ 190.4, subd. (e)) and sentenced her to death. This appeal is automatic.

We affirm Nieves's convictions but reverse her death sentence due to the trial court's misconduct.

I. BACKGROUND

A. Guilt Phase Evidence

Defendant called 911 to report a fire at her home in early July 1998. When paramedics arrived, the fire had been out for some time and defendant was covered in soot and sitting in the living room with her 14-year-old son F.D. Defendant's four daughters, ages 12, 11, 7, and 5, were lying on sleeping bags on the kitchen floor and had all died of smoke inhalation. The oven was open with burned items inside and gasoline had been poured and lit in the hallway and bedrooms.

1. Relevant relationships

The father of F.D. and defendant's two older daughters was her first husband Fernando Nieves.² Defendant had two daughters with her second husband, David Folden, who eventually adopted her three older children. Some years later, as defendant was divorcing Folden, she had an affair with Fernando. When he ended the affair, defendant sent Fernando her will and life insurance policies and told him she wanted him to have custody of all the children if she died. Later, unhappy about the end of the affair, she sent an angry letter telling Fernando he could no longer have contact with her or the children.

Defendant began seeing Scott Volk several months before the crime. They dated briefly before Volk ended the relationship. Upset over the breakup, defendant threatened to commit suicide; she sent the children to stay with their fathers and wrote a suicide note but did not end her life. When she faced eviction for unpaid rent, defendant moved to the town where Volk lived and they eventually resumed a relationship. Volk broke up with defendant again after learning she was pregnant.

2. Events surrounding the fire

Defendant had an abortion on a Thursday the week before the fire. She told Volk's mother that abortion had been out of the question until she began to think of suicide as a solution to her circumstances. The weekend after the abortion, attorneys served defendant with notice that Folden intended to revoke his adoption and child support for her three older children. When Fernando spoke to defendant afterward, she was "furious" at the prospect of losing child support.

Defendant sent a note to Folden that was postmarked on the day of the fire. She wrote: "Now you don't have to support any of us! FUCK YOU you are scum!" In a letter to Volk that he received a few days after the fire, defendant wrote: "I was always here for you — you just couldn't see it. Now you never will. [¶] I can't live without you in my life ... I have nothing left you took it all [.]"

Defendant's son F.D. testified that on the night of the fire defendant declared they would have a "slumber party" in the kitchen. F.D. did not want to sleep in the kitchen but defendant insisted. Sometime in the night during the fire, defendant shook F.D. and his sisters to wake them up. She told them to breathe into their pillows and stay where they were because the fire could be coming from outside. F.D. lost consciousness, but later got up and could see his mother and sisters lying on the floor. He lay down again and when he awoke it was light outside and his mother was up but did not answer when he asked what had happened.

3. Defense case

Defendant's friends testified that defendant was active in the Mormon Church and was a caring and devoted mother. Defendant was very depressed after her abortion and regretted it. Those who spoke to defendant just before the fire said she was upset about recent events but had plans for the immediate future and did not seem to be thinking about suicide.

When defendant testified, the prosecutor asked about her interview with a defense expert, whose notes showed that defendant reported writing letters to Folden and Volk the night of the fire and going to the post office to mail them at approximately 1:00 a.m. When testifying, defendant said she did not remember writing and mailing the letters or telling the expert about it.

She claimed that she lay down near her children to warm her feet on the oven, woke up with no idea where the fire was coming from, and did not remember anything else about the night of the fire. She thought she dreamed about holding a lighter and seeing flames, but when she saw scorched hair on the back of her hand she realized it was not a dream.

Defendant said she had been hysterical about having an abortion; subsequently, she started taking phentermine, a diet medication, and the antidepressant Zoloft. A toxicology report after the fire confirmed that defendant had phentermine in her system but no screen had been done for Zoloft.

The experts who testified for the defense included two psychiatrists, Dr. Philip Ney and Dr. Gordon Plotkin, and a neuropsychologist, Dr. Lorie Humphrey.

Dr. Ney testified that a combination of Zoloft and phentermine could cause serotonin syndrome, a condition capable of triggering seizures. Defendant's descriptions of the night of the fire, and history of seizures in early childhood, were consistent with having had a seizure. Dr. Ney explained that a seizure could have induced a dissociative state, which would cause a person to be "basically unconscious" even while engaged in complex behaviors.

Dr. Plotkin confirmed that Zoloft and phentermine could trigger serotonin syndrome and seizures and result in delirium that might cause a person to do "unusual" things. On cross-examination, Dr. Plotkin conceded that actions such as writing letters and driving to the post office were not consistent with delirium. He testified that a seizure or serotonin syndrome would not cause dissociation, as Dr. Ney had claimed.

Dr. Humphrey administered neuropsychological tests to assess defendant for brain damage. Results showed some impairment that made it harder for defendant to function under stress, rendered her more impulsive, and affected her memory.

4. Rebuttal

A psychiatrist testifying for the prosecution disputed Dr. Ney's testimony that defendant was in a dissociative state on the night of the fire: there was too much she remembered; her memory was selective; and the diagnosis was inconsistent from one examiner to another. Prosecution experts also included a neurologist and a medical toxicologist, who found no evidence that defendant experienced serotonin syndrome, a seizure, or any type of unconscious state at the time of the fire. Two experts on psychological testing also disputed Dr. Humphrey's conclusions. They found evidence that defendant tried to manipulate the psychological testing and identified mistakes and omissions throughout Dr. Humphrey's report.

B. Penalty Phase Evidence

1. Prosecution case

Fernando Nieves, his wife Charlotte Nieves, and his mother Minerva Serna gave victim impact statements on the deaths of the children and the funeral. Fernando also recounted how, within a month of the crimes, defendant tried to have F.D. removed from Fernando's custody and sent to live with a maternal relative in Indiana whom F.D. had never met. Serna expressed her belief during cross-examination that defendant was "vicious and malicious" in the way she had tried to break up Fernando's relationships and keep him from seeing his children.

David Folden described coping with his daughters’ deaths and his resentment at defendant's efforts to turn her older children against him. He felt that one thing F.D. gained from the deaths of his sisters was freedom — his mother had been so controlling she would not even let the children play in the front yard.

In addition to victim impact testimony, the prosecution showed a video of defendant's children playing in various settings and displayed poster boards mounted with photographs of the victims engaged in activities with family members.

2. Defense case

The defense presented one expert witness, Dr. Robert Suiter, who evaluated defendant and Folden during their divorce proceedings. He explained his recommendation from that time, approximately a year before the crime, that defendant was best suited to have custody of the children.

Character witnesses included a number of defendant's friends, defendant's maternal aunt, stepfather, and a bishop from defendant's church. They described defendant's mother as verbally and physically abusive during defendant's childhood and noted that defendant had experienced previous periods of severe depression. Defendant's life revolved around her children and she was an active and loving mother. The witnesses believed defendant could not have been in her right mind if she killed her children; they c...