Brief Bank # B-889 (Re: F 4.031 n3 [Culture/Cultural Background As Relevant To Heat Of Passion (PC 192(a))].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA 6 Crim. H000000
Plaintiff and Respondent, (Santa Clara County
Sup.Ct.No. C000000)
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________/
APPEAL FROM THE JUDGMENT OF
THE SUPERIOR COURT OF SANTA CLARA COUNTY
Honorable Robert P. Ahern, Judge Presiding
____________________________________
APPELLANT’S OPENING BRIEF
_____________________________________
SIXTH DISTRICT APPELLATE PROGRAM
In Association With
DAVID D. CARICO
Attorney at Law
215 West Franklin Street, Suite 309
Monterey, CA 93940
Telephone: (831) 646-0372
State Bar No. 109269
Attorney for Appellant, John Doe
APPELLANT’S OPENING BRIEF
STATEMENT OF THE CASE
By information filed on January 19, 1999, appellant was charged with a single count of murder in violation of section 187(a) of the Penal Code. It was further alleged that appellant used a deadly weapon: to wit, a knife, during the commission of the murder within the meaning of section 12022(b)(1) of the Penal Code. Appellant entered a plea of not guilty and denied the special allegation. (C.T. 36-38.)
On April 15, 1999, the prosecution filed an in limine motion to preclude appellant from calling a cultural expert because the appellant’s culture was irrelevant. (C.T. 99-104.) The trial court denied the motion in part. The court ruled that the cultural expert could testify as to cultural factors which would have a bearing upon appellant’s state of mind, but that the evidence was irrelevant to the issue of provocation. (C.T. 121.)
On May 5, 1999, during trial, appellant requested that he be allowed to testify in English. The court denied the request. (C.T. 137-138.) The motion was renewed the following day and again denied. (C.T. 140.)
On May 12, 1999, the jury retired for deliberations. The jury requested a readback of appellant’s testimony and the testimony of two prosecution witnesses. (C.T. 222-223.) The jury then returned a verdict finding appellant guilty of second degree murder. The jury also made a true finding that appellant personally used a deadly weapon. (C.T. 224-225.)
On June 29, 1999, appellant was sentenced to a term of 15-years-to-life for the second degree murder conviction. A consecutive one-year term was added for the weapon use enhancement. The court also imposed a $10,000 restitution fine. (C.T. 231.)
STATEMENT OF APPEALABILITY
This appeal is from a final judgment following a jury trial and is authorized by Penal Code section 1237.
STATEMENT OF FACTS
Prosecution Evidence
The Incident
On May 1, 1998, Mr. H was living in a two-story house across the street from an apartment complex at 255 North Third Street in downtown San Jose. He regularly arose to his alarm at 6:00 a.m. This morning, however, he was awakened at 5:45 a.m. by the sound of someone screaming. The screaming continued and became intermittent with a scream every ten seconds or so. He then heard a woman say “no.” There would be intermittent screams, the word “no,” and then silence. Mr. H went downstairs to investigate and the screaming stopped. He continued back upstairs to his room and showered. When he exited the shower he heard a different sound; like an “ugh,” a deep grunting sound which kept going. (R.T. 55-63.)
Ms. B lived in Apartment # 4, a downstairs apartment, at 255 North Third Street. She usually arose between 5:00 and 6:00 a.m. The morning of May 1, 1998, she was awakened by the muffled sounds of an argument between the people living up above her. She then heard a blood-curdling scream which caused her to jump out of bed and call 911. She heard at least one more scream. She then heard the sound of footfalls going back and forth from the kitchen to the bedroom, bathroom, and living room area in the apartment above. (R.T. 65-75.)
Officer John Tompkins was dispatched to 255 North Third Street at 6:19 a.m. Officer Tompkins and other officers knocked on the door to apartment 12 and announced that they were police officers. Upon getting no response, one officer used his knife to cut the screen to the window and reached in and unlocked the door. In the kitchen was the dead body of a woman lying on her back somewhat propped up against the stove. The woman had been stabbed numerous times with several kitchen steak knives. Broken steak knives lay scattered about the kitchen. (R.T. 89-93.) A broken knife blade protruded from the victim’s clothing by the left elbow. (R.T. 115.)
John Doe was flat on the floor in the living room in a pool of his own vomit writhing with pain. (R.T. 80-88.) A kitchen knife was underneath his legs. He had slashed his wrist. There was also a strong odor of Liquid Draino in the air which prompted the police to call the fire department to air out the apartment. Officer Tompkins decided he needed to obtain a dying declaration from John Doe. He told him it appeared as though he was going to die and asked him what happened. John Doe said “Finish me.” He said this three times. Tompkins repeated his question and after a minute or so John Doe answered, “I killed her.” Tompkins asked him why and he said, “She betrayed me.” Tompkins asked additional questions but John Doe was not responding. (R.T. 94-106, 109.)
Officer Greg Gunsky was assigned to collect evidence at the crime scene. A drawer in the kitchen was open and there were various utensils: knives, forks, spoons inside of it. There were blood drops on the inside of the drawer. No other drawers in the kitchen were open. (R.T. 106-118.)
Ms. G met John Doe and Mrs. Doe in Ethiopa. They worked together at Care International for five to six years. John Doe and Mrs. Doe were married in Ethiopia. In the beginning of 1996, a year or so after their marriage, John Doe and Mrs. Doe emigrated to the United States. They settled in Atlanta, Georgia. Mrs. Ms. G emigrated to the United States with her husband in the later part of 1996. Ms. G eventually settled in San Jose in the latter part of 1997. Ms. G spoke with John Doe and Mrs. Doe by telephone on a weekly basis. In December 1997, Mrs. Doe told Ms. G that she did not want to live with John Doe anymore. (R.T. 147-157.) This was surprising to Ms. G because she had never observed any problems in John Doe’s and Mrs. Doe’s marriage. Mrs. Doe gave no reason for wanting to leave. About 15 days later, Mrs. Doe called Ms. G and told her she was leaving John Doe and coming to San Jose to stay with Ms. G. Mrs. Doe moved in with Ms. G around Christmas time in 1997. Mrs. Doe did not tell John Doe she was leaving. Mrs. Doe asked Ms. G not to tell John Doe where she was. (R.T. 161-163, 171-179.)
John Doe called Ms. G repeatedly over the next several days inquiring about Mrs. Doe. Eventually, Ms. G could not continue with the subterfuge and handed the phone to Mrs. Doe and told her to speak to John Doe. Mrs. Doe and John Doe reconciled and John Doe moved to San Jose about a month later. John Doe and Mrs. Doe were working at Atmel in San Jose. During the last week of April 1998, Mrs. Doe told Ms. G that she did not want to live with John Doe anymore. John Doe asked Ms. G to intervene and speak with Mrs. Doe. John Doe told Ms. G that he and Mrs. Doe were not speaking to each other. John Doe was humiliated by this silence especially when it occurred in front of his Ethiopian co-workers. (R.T. 164-184.)
Ms. G, John Doe and Mrs. Doe had lunch together on Wednesday, the 29th of April. John Doe did not go to work that day. Ms. G spoke with John Doe and Mrs. Doe again on the next evening. John Doe did not go to work that day either. (R.T. 164-171.)
Defense Case
John Doe testified that he was born in Ethiopia on January 1, 1967. He earned a degree in physics and went to work for Care International Relief Organization on October 5, 1990. Mrs. Doe came to work for Care in 1991 and John Doe was her supervisor. They became boyfriend and girlfriend. In 1996, Mrs. Doe and John Doe applied for the Visa lottery to emigrate to the United States. Mrs. Doe’s name was selected. John Doe and Mrs. Doe were married and then emigrated to Atlanta, Georgia in 1996. (R.T. 192-195.)
John Doe had no friends or family in Atlanta. John Doe and Mrs. Doe lived with their sponsor (a family relation to Mrs. Doe) for the first three months and then got an apartment of their own.
When John Doe came home from work and found that Mrs. Doe had left him he was very upset. She left a note saying that she was visiting a friend whose father had just died but she left no phone number. John Doe made inquiries and the sponsor told him that Mrs. Doe had left Atlanta. John Doe blamed himself. He thought Mrs. Doe had left because he would not convert to Islam. John Doe was Christian and Mrs. Doe Muslim. He was confused and frustrated. (R.T. 197-200, 223, 237-238, 268.)
John Doe became suicidal. He eventually found out through Ms. G that Mrs. Doe was staying with her. John Doe moved to San Jose at the end of January 1998 and got a job at Atmel where Mrs. Doe was working. All seemed well until Tuesday, April 28th when Mrs. Doe told him that she wanted him to move out. He became depressed and stayed home from work. He threatened to drink Liquid Draino if Mrs. Doe left him. Mrs. Doe took the chemical away from him. He suffered from insomnia. (R.T. 209-212, 240-243.)
On Wednesday, April 29th, John Doe again tried to convince Mrs. Doe to stay with him. Ms. G joined them for lunch and they discussed their difficulties. On Thursday, John Doe stayed home from work. (R.T. 243-244.)
John Doe lay awake when Mrs. Doe arrived home from work at about 5:25 a.m. on Friday, May 1, 1998. She asked him why he wasn’t working. They began arguing in the kitchen. Mrs. Doe accused John Doe of being a loafer. John Doe responded that this was the first time he had ever missed any work. Mrs. Doe demanded that John Doe leave; she wanted him out of her sight. John Doe begged her to let him stay at which time Mrs. Doe spit in his face. John Doe told her not to spit on him but she continued to do so. John Doe was crying. The spitting made him feel worthless. It was an extreme insult to be spit on in Ethiopia. It meant you were no better than garbage. John Doe grabbed something and stretched his hand toward Mrs. Doe a couple of times as she was coming toward him. He did not remember picking up a knife. He helped Mrs. Doe to the floor and then saw the blood. (R.T. 212-215, 219-221.) John Doe did not remember holding the knife under Mrs. Doe’s chin or against her face. (R.T. 264-265.)
John Doe wanted to kill himself. He was confused and panicked. He took a knife from the drawer and ran about the apartment with the knife in his hand. He called 911 but did not speak to anyone. In the bathroom he cut his wrist. He found the bottle of Liquid Plumber and drank it. He then used the knife he was carrying to cut his wrist. When the police arrived he told them to kill him. (R.T. 217-219, 257-264.)
John Doe denied pulling the phone cord out of the wall. He denied ever threatening Mrs. Doe when they were in Atlanta. He denied ever previously threatening Mrs. Doe with a knife. (R.T. 221-223.) John Doe denied ever telling Mrs. Doe that he would seek revenge on her and her family if she ever left him. (R.T. 239.)
Cultural Evidence
Awetu Simesso is employed at the office of research administration at Stanford University, and is a professor at San Jose State University. He teaches African-American studies. At the time of trial, he was a doctoral candidate at Stanford. He was born in Ethiopia and spent most of his life there. He was found qualified by the court to testify concerning Ethiopian culture, religion, and more specifically, the problems experienced by Ethiopian immigrants in the United States. (R.T. 270-275.)
In Ethiopia, both the nuclear and extended family are very close. Entire villages will travel to the airport to wish a family member farewell. Eighty-five percent of the country is still rural. Friends are chosen with care and there is an unspoken Ethiopian loyalty that friendships will continue for a lifetime. Personal matters and feelings are shared within the circle of family and close friends, but it is considered undignified to talk with others about personal troubles. A group of elders mediate marital disputes. This kind of support structure is very hard to establish in the United States. (R.T. 276-280, 300-301.)
The two major religions within Ethiopia are Christianity and Islam. Historically, there have been great tensions between these religious groups which is still the case in politically active groups. Normally, when two people of different religions marry, one person converts. (R.T. 281-286, 298.)
Ethiopia is still a patriarchal society, and for a woman to leave her husband without explanation would cause the husband to suffer a great deal of shame and humiliation. Ethiopia has a more medieval puritan society than the United States and gestures have more meaning attached to them. In Ethiopia, there is no greater insult than spitting on someone. It is a declaration of war for a man to spit on another man. When a woman spits on a man, she is telling him he is useless and out of her life. (R.T. 287-288, 295-297.)
Psychiatric Evidence
Dr. Thomas Reidy, a forensic psychologist, was retained by the defense to evaluate John Doe’s mental state at the time he killed his wife. John Doe developed a neediness and very strong dependance upon his partner, Mrs. Doe. He was very reactive to her comments. When the relationship broke down his feelings of rejection were intense. He became suicidal. The suicide attempt indicated extreme despair, desperation, and perhaps guilt. (R.T. 304-325, 326-329, 334-335.)
It was not surprising to Dr. Reidy that John Doe did not have total recall of the killing given the highly emotionally charged state he was in at the time. (R.T. 330-332, 338.) The multiple stab wounds were consistent with someone in a highly charged emotional state. (R.T. 338-339.)
Prosecution’s Rebuttal
Dr. Parviz Pakdaman, a medical examiner for Santa Clara County, performed the autopsy on Mrs. Doe. There were superficial cuts on Mrs. Doe’s face. There were two superficial cuts beneath the chin. The superficial cuts under the chin were consistent with the assailant holding the point of the knife under the chin and holding the knife point to the chin or pushing in. (R.T. 443-450.) There were slash type wounds on the victim’s arms which appeared to be defensive injuries. There were stab wounds in the center of the chest and the right side of the chest. Two of the wounds entered the heart. (R.T. 449-456.)
ARGUMENT
I.
THE COURT ERRED IN EXCLUDING CULTURAL EVIDENCE AND GIVING INCOMPLETE INSTRUCTIONS ON THE ISSUE WHETHER THERE WAS ADEQUATE PROVOCATION TO MITIGATE THE OFFENSE FROM MURDER TO MANSLAUGHTER
Appellant offered the expert testimony of Awetu Simesso on Ethiopian culture to show the “state of mind of the defendant at the time of the act and whether he acted as a reasonable man.” (R.T. 37 [Emphasis added].) The prosecution’s position was that the cultural evidence was irrelevant because the standard is a reasonable man and not a reasonable Ethiopian immigrant. (R.T. 34.) The trial court took the middle ground, allowing appellant to introduce the evidence to show appellant’s state of mind, but precluding him from offering the evidence to show that he acted upon adequate provocation. The court stated that the prosecution’s position was “well taken that it [the cultural evidence] cannot show provocation because provocation must come from the victim. . . . The ultimate test and the instruction to the jury will be it’s not gonna be whether or not this defendant acted as a reasonable Ethiopian man; it’s gonna be whether or not he acted as a reasonable man.” (R.T. 37-38.)
Appellant contends that the cultural evidence was relevant to the question whether he acted as a reasonable man upon adequate provocation. The trial court therefore erred in precluding appellant from offering this evidence on the subject of the adequacy of the provocation. Moreover, the court also erred in concluding that the standard should be the “reasonable man” (i.e., mainstream-white-American-male) rather than a “reasonable Ethiopian immigrant.” Under the Equal Protection and Due Process Clauses, provocation that is sufficiently offensive in appellant’s culture to cause a reasonable Ethiopian immigrant male to act on impulse and without reflection should be treated as manslaughter and not murder.
Alternatively, if this court finds that there was no error attributable to the trial judge in its rulings on cultural evidence or the instructions given on provocation, then appellant contends that his trial counsel was ineffective in failing to offer appropriate instructions on culture and provocation.
1 Cultural evidence was relevant to the question of whether a reasonable person in appellant’s position would have lost self-control and acted on impulse and without reflection
>
Voluntary manslaughter is the unlawful killing of a human being upon a sudden quarrel or heat of passion. (Pen. Code, § 192, subd. (a).) Although section 192, subdivision (a) refers to “sudden quarrel or heat of passion,” the factor which distinguishes manslaughter from murder is provocation. The test of adequate provocation is an objective one. “The fundamental inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion,” not fear nor revenge, “to such an extent as would render ordinary men of average disposition liable to act rashly without due deliberation and reflection, and from this passion rather than from judgment.” (People v. Valentine (1946) 28 Cal.2d 121, 139; see also, People v. Logan (1917) 175 Cal. 45, 49; People v. Wickersham (1982) 32 Cal.3d 307, 326.) “[T]he conduct of the defendant is to be measured by that of the ordinarily reasonable man placed in identical circumstances, . . . [and] the exciting cause must be such as would naturally tend to arouse the passion of the ordinarily reasonable man.” (People v. Valentine, supra, 28 Cal.2d 121, 139.)
Heat of passion does not require that the act of killing be reasonable, for a reasonable killing is no crime at all. “What is really meant by ‘reasonable provocation’ is provocation which causes a reasonable [person] to lose his [or her] normal self-control; and although a reasonable [person] who has thus lost control . . . would not kill, yet his [or her] homicidal reaction to the provocation is at least understandable.” (2 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 7.10, p. 256; see also People v. Coad (1984) 181 Cal.App.3d 1094, 1107.) “Understanding and sympathy comes from those who can see themselves in the defendant’s situation.” (Comment, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense (1986) 33 UCLA L.Rev. 1679, 1697-1698 [hereinafter “Comment, Provoked Reason in Men and Women”].)
While provocation must come from the victim, its adequacy as mitigation is dependant upon the emotional response of the so-called “reasonable person of average disposition.” In purely objective jurisdictions, the defendant’s unique characteristics are not taken into account in determining the reasonableness of his response to provocation. The standard is the hypothetical reasonable man in the same or similar circumstances. However, in California, and the majority of jurisdictions, there is some combination of the subjective and objective which takes into account the defendant’s individual point of view. (Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals (1991) 140 U. Pa. L.Rev. 379, 409, 412 & fns. 105, 113.)
In measuring the conduct of the defendant, the jurors must place themselves in the shoes of the defendant and then judge whether the defendant’s conduct was reasonable. (People v. Humphrey (1996) 13 Cal.4th 1073, 1086 [“in determining objective reasonableness, [the jury] must view the situation from the defendant’s perspective.”]) Thus, in self-defense cases, it has been said that “reasonableness is determined from the point of view of a reasonable person in the defendant’s position. The jury must consider all the facts and circumstances it might ‘”expect[] to operate on [defendant’s] mind….” [Citation.]'” (People v. Minifie (1996) 13 Cal.4th 1055, 1065; People v. Waysman (1905) 1 Cal.App. 246, 249 [italics added].) Those “like circumstances” have included the physical, mental, and cultural characteristics of the defendant. (See People v. Smith (1907) 151 Cal. 619, 627-628 [the “reasonable man” must be imbued with the personal physical characteristics of the defendant]; People v. Moore (1954) 43 Cal.2d 517, 524 [the defendant’s “very run-down condition due to glandular disturbances which caused her to be emotionally unstable”]; People v. Humphrey, supra, 13 Cal.4th at p. 1086 [jury entitled to be “‘given a professional explanation of the battering syndrome and its effects on the woman through the use of expert testimony'” ]; People v. Croy (1985) 41 Cal.3d 1 [conviction reversed and new trial ordered; acquittal after retrial described in David Talbot, The Ballad of Hooty Croy, L.A. Times (June 24, 1990) Magazine section, p. 16); evidence of the history of oppression of Native-American people by law enforcement was received to explain Croy’s state of mind and the reasonableness of his belief in the necessity of self-defense]; see also Ha v. Alaska (Ala. 1995) 892 F.2d 184, 195 [Vietnamese culture was a proper matter for the jury to consider in evaluating the defendant’s self-defense claim].)
“The purpose of ‘social framework evidence’ . . . is to provide the fact-finder, usually a jury, with information about the social and psychological context in which contested adjudicated facts occurred. It is presumed that knowledge about the context will help the fact-finder interpret the contested adjudicative facts.” (Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts? (1995) 70 N.Y.U.L. Rev. 36, 58 [hereinafter “Cultural Evidence”].) “In family violence prosecutions, for example, homicide and assault defendants who were battered women have introduced lay and expert testimony about the history of violence between the accused and the batterer. This testimony is offered to explain the factual circumstances surrounding a defendant’s action and their role in the formation of her belief in the necessity of taking defensive action.” (Id. at p. 59.)
In People v. Humphrey, supra, 13 Cal.4th 1073, the California Supreme Court approved the use of expert testimony on the issue of the reasonableness of a defendant’s belief in the need for self-defense. The evidence of battered women’s syndrome is relevant “‘to explain a behavior pattern that might otherwise appear unreasonable to the average person. Evidence of [battered women’s syndrome] not only explains how a battered woman might think, react, or behave, it places the behavior in an understandable light.’” (Id. at p. 1088 quoting People v. Day (1992) 2 Cal.App.4th 405, 419.)
Cultural evidence may play an important role in cases where there is a battered woman. In 1992, a trial judge in Kodiak, Alaska exercised discretion in evidentiary rulings to permit the jury to hear the full experience of an Aleut woman on trial for homicide. Kathryn Charliaga, charged with killing her husband, said that she acted in self-defense and that the act occurred after a long history of abuse at his hands. Two experts testified. An expert on battered women’s syndrome who testified about the operation of battered woman’s syndrome and its impact on the defendant’s perceptions at the time of the killing and on her inability to escape the past violence. The second expert testified specifically about women’s subservient roles in Aleut villages and described the Aleut culture as one that not only tolerated wife-battering, but also offered no support for a woman’s attempts to leave the relationship. Charliaga was acquitted. (Cultural Evidence, supra, at p. 82.)
If evidence of battered women’s syndrome is admissible to make the battered woman’s peculiar behavior in relation to her batterer understandable to the average person, then evidence of Ethiopian culture is admissible for the purpose of explaining how an Ethiopian person might react violently to a word, gesture, or some other form of provocation that might not provoke a violent reaction in the average white person. A homicidal reaction to sufficient provocation is not reasonable, but is understandable. It is understandable that a battered woman may react violently to an offhand remark by her spouse because she knows the remark signifies an inchoate beating. It is understandable that an Ethiopian man may react violently to being abandoned and spit on by his wife because in Ethiopian culture intense shame attaches to males who are abandoned by their female partners. (R.T. 286-287, 291.)
A defendant may be “‘aroused to a heat of passion by a series of events over a considerable period of time. . . .’” (People v. Wickersham, supra, 32 Cal.3d at p. 327.) Here, there was evidence that appellant had experienced a series of events over a five-month period which culminated in the argument and spitting incident which precipitated the killing. Mrs. Doe left appellant and moved to San Jose in December 1997 without informing appellant where she was going. (R.T. 161-163, 171-179.) According to the cultural expert, for a married woman to leave her husband without explanation would cause a great deal of shame and humiliation to the husband. (R.T. 286-287.) Appellant then left his home, job, any connections he had made in Atlanta, Georgia, and followed Mrs. Doe to San Jose. A little over three months later, Mrs. Doe lowered the boom upon appellant again and told him to get out. Again, no explanation offered other than that she did not want him anymore. Appellant was humiliated by this experience and fell into a depression which caused him to stay home from work. (R.T. 164-184, 209-212, 240-243.) Appellant’s depression only increased the vitriol of Mrs. Doe who chastised him for staying at home. Mrs. Doe spit in appellant’s face at which time appellant lashed out and killed her. (R.T. 212-215.)
The testimony concerning Ethiopian culture was relevant to explain the significance of these events on appellant’s state of mind, and to show how the spitting could have constituted “sufficient provocation” to cause appellant to kill his wife in a “heat of passion.” The significance of the spitting incident as provocation could not be fully understood without reference to the testimony of the cultural expert. In Ethiopian culture, gestures have more meaning attached to them than in American culture, and the act of spitting is the ultimate insult. (R.T. 287, 297-298.)
The defense psychologist testified that he had to speak with the cultural expert in order to understand the cultural issues which had a bearing upon appellant’s state of mind. Appellant’s emotional state was intertwined with, and explainable by reference to, his cultural background. Appellant did not offer the cultural evidence to establish a “cultural defense” or to somehow justify or excuse his conduct. The cultural evidence was offered to show how appellant’s homicidal reaction to the pre-existing stress and the spitting incident was understandable. The trial court erred in ruling that the cultural evidence was irrelevant to the issue of whether appellant’s conduct was understandable (i.e., whether there was “sufficient provocation”).
B. The use of a “reasonable person” standard which is gauged on the reaction of the average White American of ordinary disposition to provocation violates the Equal Protection Clause when applied to ethnic immigrants such as appellant
The trial court refused to consider appellant’s Ethiopian culture on the issue of provocation. (R.T. 37-38.) Accordingly, the court would not modify the standard CALJIC instructions on heat of passion and provocation. The standard was going to be whether he acted as a “reasonable man.” (R.T. 38.) In other words, whether a reasonable white American male would have considered abandonment by his wife and the ignominy of her spit in his face sufficient provocation to kill her.
The instructions given to the jury were in accordance with the trial judge’s views of the irrelevance of Ethiopian culture to the reasonable person standard. CALJIC No. 8.42 as given to the jury provided in pertinent part:
“The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation.”
Appellant contends that the trial court’s ruling and jury instruction precluding consideration of appellant’s cultural background in determining whether he acted upon sufficient provocation violated the Equal Protection Clause of the Fourteenth Amendment, and article I, section 7 of the California Constitution. Appellant acknowledges that there is no recognized equal protection right to a culturally specific evaluation of the element of provocation as it relates to the crime of manslaughter. However, he asks this court to recognize such a right. Appellant argues that equal treatment of ethnically diverse persons requires that if certain provocation involving acts of betrayal by a spouse (such as sleeping with another) is sufficiently offensive in mainstream American culture to reduce murder to manslaughter (see, e.g., People v. Bridgehouse (1946) 47 Cal.2d 406, 413-414; People v. Berry (1976) 18 Cal.3d 509, 514), acts of betrayal that are equally provocative in appellant’s culture should be treated as equally mitigating.
B.1. A classification which considers mainstream culture but precludes consideration of ethnic culture in determining mitigation for crime invidiously discriminates on the basis of race or ethnicity
“Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.” (Baxtrom v. Herold (1966) 383 U.S. 107, 111 [15 L.Ed.2d 620, 86 S.Ct. 760].) “The equal protection issue is whether actual distinctions in the statutory classes realistically justify disparities in treatment under the appropriate standard of revue.” (In re Huffman (1986) 42 Cal.3d 552, 561.)
The law takes into account human frailty in assessing a reduced penalty for a killing under the heat of passion as the result of provocation. “‘Heat of passion, in order to reduce a killing with a deadly weapon from murder to manslaughter, must have arisen from some provocation, which, out of a tender regard for the weakness of human nature, the law deems sufficient to arouse passions which the party is for the moment unable to control.’” (People v. Bruggy (1892) 93 Cal. 476, 481 quoting Nichols v. Commonwealth, 11 Bush 586 (overruled on other grounds in People v. Valentine (1946) 28 Cal.2d 121.)
What the dominant culture deems mitigating has been codified into the common law. Early provocation law focused on the accused’s subjective state of mind. Over the course of time, English courts “objectified” the standard by formulating categories of provocative events sufficient to rebut the implication of malice. These categories were both Eurocentric and designed to enforce male dominance. In 1707, these categories included assault on the accused, the sight of an assault on a friend, the sight of an illegal arrest of another, and the sight of a man in adultery with the accused’s wife. Words directed at the accused, affronting gestures, trespass to property, or the misconduct of a child or servant failed to adequately support a finding of provocation. (Comment, Provoked Reason in Men and Women, supra, 33 UCLA L.Rev. at p. 1685.)
In the nineteenth century, a more general standard of reasonableness developed in civil as well as criminal law. In 1837, English tort law recognized the “man of ordinary prudence.” The “man of ordinary prudence” was “both a concession to social necessity and an ideal toward which people could aspire — an ideal that incorporated community standards about reasonable behavior.” American courts adopted the standard as well. (Comment, Provoked Reason in Men and Women, supra, 33 UCLA L.Rev. at p. 1686.)
The reasonable man standard has proven difficult to apply to non-European cultures. The categories of provocation in western European countries France and Germany are remarkably similar to the categories in Great Britain and the United States. Where cultural differences are greater, the standard of reasonableness will vary more. Courts had to alter the standard in areas colonized by western Europe “where insults that would leave the average Englishman unmoved might represent the ‘ultimate exasperation.’” (Comment, Provoked Violence in Men and Women, supra, at p. 1688, fn. 59.) In the United States, “provocative or abusive words are almost never considered adequate provocation.” “Sticks and stones may break my bones, but words will never hurt me,” as the school-yard saying goes. The exception has been words informing the defendant of the adultery of his wife or sexual assault of a female relative. (Id. at p. 1696.)
Additionally, the majority of jurisdictions in the United States continue to recognize the early English-inspired categories of provocation. For example, there has been a long-standing practice in England and the United States of excusing or mitigating punishment for violence against women by dominant culture men, who, “provoked” by wife’s infidelity, kill in the heat of passion. (See Coker, Heat of Passion and Wife Killing: Men who Batter/Men who Kill (1992) 2 S. Cal. Rev. L. & Women’s Stud. 71, 82-84.) For almost three centuries only husbands could invoke the defense of provocation when they killed after witnessing adultery. (Comment, Provoked Violence in Men and Women, supra, 33 UCLA L.Rev. at p. 1694.) However, an unmarried male could not invoke this mitigation if he killed his unfaioof of a concurrence of actus reus and mens rea necessary for a conviction of murder. The defendant need only raise a reasonable doubt of the existence of consciousness. (Evid. Code, § 607; CALJIC No. 4.30 (6th ed. 1996); People v. Babbitt (1988) 45 Cal.3d 660, 694 [prosecution assumes burden of disproving unconsciousness once defense raises issue].) Thus, the court’s failure to instruct on the defense of unconsciousness when there is substantial evidence to support the defense in effect lowers the prosecution’s burden by removing the issues of consciousness from the jury’s consideration.
The error cannot be considered harmless beyond a reasonable doubt on this record. As in Tufunga, the jury credited appellant’s testimony insofar as it returned a second degree murder verdict. Appellant testified that he did not contemplate killing his wife if she left him, and the jury evidently accepted his testimony in this regard by not returning a first degree murder verdict. (R.T. 244, 264-265.) Moreover, the only lesser included offense option given the jury was voluntary manslaughter which required a finding of intent to kill necessary for second degree murder, plus the additional element of heat of passion and adequate provocation. The second degree murder verdict was consistent with a finding of heat of passion, but inconsistent with a finding of adequate provocation. However, the lack of adequate provocation would not have precluded the jury from finding that appellant was in such emotional turmoil that he had lost awareness. Therefore, the error cannot be deemed harmless beyond a reasonable doubt. Accordingly, the judgment must be reversed.
CONCLUSION
“We do not see what we do not see, and what we do not see, does not exist. Only when some interaction dislodges us, such as being suddenly relocated to a different cultural environment, and we reflect upon it, do we bring forth new constellations of relation that we explain by saying that we were not aware of them or that we took them for granted.” (The Tree of Knowledge, supra, at p. 242.) The California Courts should no longer take for granted the dominant cultural bias of the “ordinary person of average disposition” standard. Defining the “ordinary person” as the average American “Joe and Betty” drowns ethnic minority cultures in the wake of normative mainstream traditions which are no more “objective” than the minority traditions they fail to see. The only way to bring mainstream cultural bias into focus in the criminal courts is to instruct juries in cases such as this that the “ordinary person” is not “Joe or Betty,” the juror in the next seat, or even one of the Founding Fathers, but rather is a reasonable person sharing the defendant’s cultural attributes. The absence of such an instruction in this case deprived appellant of his Sixth Amendment right to a jury trial on the critical issue whether there was sufficient provocation to cause a reasonable person in appellant’s position to be overwhelmed with emotion.
In addition, appellant had a Fifth Amendment right not to incriminate himself and the corollary fundamental right to testify if he gave up his Fifth Amendment right to silence. He desired to give up his right to remain silent and to exercise his right to testify on the condition that he be allowed to testify in English. The court refused to honor the condition; a reasonable one given appellant’s English ability and the purpose of his testimony which was to plead his case for mitigation.
Lastly, the jury was given two choices in this case: convict appellant of murder if he intended to kill, or manslaughter is he killed without malice. Since the instructions were inadequate to allow the jury to fit this case into the manslaughter category, the jury was left with one option: convict appellant of murder if it found an intent to kill. Another option, unknown to the jury, was available: acquit appellant if it found he intended to kill but was unconscious at the time he inflicted the fatal wounds. The failure to inform the jury of the latter option deprived appellant of his Sixth Amendment right to a jury trial, Fifth Amendment due process right to a fair trial, and the right under the California Constitution to have the jury determine every material issue presented by the evidence.
For all of the reasons specified herein, appellant respectfully requests that this court reverse the judgment of conviction, and remand this matter to the trial court for a new trial.
>
DATED: November 30, 1999
Respectfully submitted,
_______________________
DAVID D. CARICO
Attorney for Appellant
OPENING BRIEF FOOTNOTES (1-7):
Footnote 1: What the dominant culture deems to be a mitigating circumstance is also subject to change. In a by-gone era, the act of spitting on someone would have been considered legally sufficient provocation if the recipient returned the favor by killing the offender. (State v. Weaver (1798) 3 N.C. 216.) Additionally, despite recent California case law proclaiming that a simple assault cannot establish adequate provocation for manslaughter, this was not the case at the turn of the century. (Contrast People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704-1705 with People v. Jones (1911) 160 Cal. 358, 368.)
Professor Maguigan references the 1985 California trial of Hagos Gebreamlak at which a defense expert testified about the relevance of Ethiopian customs to the defendant’s belief that the woman he attempted to kill had placed a spell on him. The defendant was acquitted of attempted murder and convicted of the lesser charge of assault. (Cultural Evidence, supra, at p. 76, fn. 150.) In the Gebreamlak case, the defendant’s motivations were alleged to be the result of a belief in the supernatural which is not within the ordinary contemplation of the dominant majority. This was not historically the case; however, “the dominant culture is sufficiently distanced in time from a belief in witchcraft that a verdict excusing or mitigating culpability for killing a woman because of a defendant’s belief she was a witch or possessed by an evil spirit is not generally seen as representing a threatened return to beliefs such as those that led to the Salem witchcraft trials.” (Id. at p. 156.)
Footnote 2: Abandonment of a husband by a wife was likely not an option to Victorian age women at the time the common law categories of provocation were invented by the English courts. There was no such thing as no-fault divorce, and women were economically dependent upon men. Thus, the common law courts had no occasion to consider complete abandonment by a spouse as a provocatory act which may reduce a killing from murder to manslaughter.
Footnote 3: Since domestic violence is overwhelmingly a problem of male violence directed toward female cohabitants, the discussion will focus specifically on mitigation of male violence.
Footnote 4: Presumably, a polygamist would be entitled to a verdict of manslaughter if he killed one of his wives in the heat of passion upon discovering her infidelity with another male. Although California has no interest in protecting polygamy, it apparently would have an interest in mitigating punishment of the polygamist who kills one of his wives because of her infidelity. An Ethiopian immigrant who kills an unfaithful wife (i.e., one who abandons him) is no more morally blameworthy and should receive no greater punishment.
Footnote 5: The Model Penal Code has guidelines that take the defendant’s cultural background into consideration. The Model Penal Code finds manslaughter when a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be. (Model Penal Code § 210.3(1)(b) (Proposed Official Draft 1962).)
Additionally, in response to the growing awareness of the plight of the battered woman, some states have adopted a “reasonable battered woman” standard. (See, e.g., State v. Stewart (Kan. 1988) 243 Kan. 639 [763 P.2d 572, 579] [“in cases involving battered spouses, the objective test is how a reasonably prudent battered wife would perceive the aggressor’s demeanor.”])
Footnote 6: Worse yet, appellant could have been the “very bad immigrant” who would attempt to bolster the testimony of the cultural expert by testifying in Ethiopian despite a sufficient awareness of English to testify in English. The court told the jury that no one was trying to hide anything from them, but this was based upon defense counsel’s assessment of appellant’s English speaking ability, not the court’s, and it was the defense promulgating the cultural evidence.
Footnote 7: Appellant told the psychologist that he did not remember how many times he stabbed the victim, but he did remember stabbing her once in the stomach and twice in the neck. The court explained to the jury that this testimony was hearsay and inadmissible for the truth of the matter. (R.T. 326-328, 331.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA 6 Crim. H000000
Plaintiff and Respondent, (Santa Clara County
Sup.Ct.No. C000000)
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________/
APPEAL FROM THE JUDGMENT OF
THE SUPERIOR COURT OF SANTA CLARA COUNTY
Honorable Robert P. Ahern, Judge Presiding
____________________________________
APPELLANT’S PETITION FOR REHEARING
_____________________________________
SIXTH DISTRICT APPELLATE PROGRAM
In Association With
DAVID D. CARICO
Attorney at Law
215 West Franklin Street, Suite 309
Monterey, CA 93940
Telephone: (831) 646-0372
State Bar No. 109269
Attorney for Appellant,
John Doe
PETITION FOR REHEARING
Appellant, John Doe, respectfully petitions this court for a rehearing pursuant to rule 27 of the California Rules of Court.
ARGUMENT
I.
THIS COURT SHOULD VACATE ITS OPINION AND RECONSIDER ITS HOLDING THAT THE MANSLAUGHTER INSTRUCTIONS
GIVEN IN THIS CASE ADEQUATELY INFORMED THE JURORS THAT THEY COULD CONSIDER APPELLANT’S UNIQUE CULTURAL BACKGROUND AS AN ETHIOPIAN IMMIGRANT IN DETERMINING WHETHER THE PROVOCATION FROM THE VICTIM
WAS LEGALLY ADEQUATE TO REDUCE AN INTENTIONAL HOMICIDE FROM MURDER TO MANSLAUGHTER
From the opinion, it can be garnered that this court is of the opinion the trial court did not restrict the use of cultural evidence in any fashion, and therefore permitted its use to prove the objective element of whether an ordinarily reasonable person in appellant’s circumstances would have reacted from passion rather than judgment to the victim’s provocation in this case. This court holds that appellant’s background as an Ethiopian immigrant was relevant to the objective reasonableness of his conduct. (Slip Opn. at pp. 12, 14.) This court further explains that “[a]t trial, . . . [h]e [appellant] did not claim that the trial court was preventing him from proving more” about Ethiopian culture. (Slip Opn. at p. 7.) Further, “[u]nder the instructions given here, the jurors were free to apply their version of community norms. It is pure speculation that these norms reflected a ‘majority culture’ or ‘pluralistic ignorance.’” (Id. at p. 11.) The court goes on to state that the jury “was instructed to evaluate defendant by the standard of ‘an ordinarily reasonable person in the same circumstances . . . [¶] Thus, the jury was required to consider defendant’s particular situation and circumstances.” [Original emphasis.] According to this court, these circumstances that jury was permitted to consider included “evidence of defendant’s Ethiopian background.” (Slip Opn. at p. 12.)
A. The trial court limited the admissibility of the cultural evidence to the defendant’s state of mind
The appellate record does not support this court’s factual conclusion that the court did not limit the admissibility of cultural evidence. As appellant pointed out in his Opening Brief and at oral argument, the court did preclude the defense from offering cultural evidence on the issue of provocation.[Footnote 8] Further, as appellant pointed out at oral argument, this ruling would have prevented defense counsel from asking her cultural expert hypothetical questions based upon the facts in this case. For instance, counsel could not have asked her expert whether the conduct of the victim in this case was the sort of conduct that could have caused an otherwise reasonable Ethiopian male to lose his mind.
This court states that defense counsel “was not trying to show provocation.” (Slip Opn. at p. 6.) If this assertion is correct, then defense counsel was incompetent. Cultural evidence was vital to the defense case for manslaughter.
Further, notwithstanding the trial court’s request for assurance that defense counsel was offering cultural evidence only as it affected appellant’s state of mind, defense counsel requested that the cultural evidence be admitted to show provocation. Defense counsel stated that “they [the jurors] cannot evaluate him as a reasonable man without knowing what the facts and circumstances are surrounding this person. It has to be taken in light of the individual, and the individual in this case is Ethiopian. [¶] So in order to explain the facts and circumstances and how he reacted to certain provoking acts by his wife, it must be in context of the amount of shame and humiliation that he felt and why those were so provoking to him.” (R.T. 36; see also Appellant’s Opening Brief at p. 12.) The court asked defense counsel, “[i]f you’re not trying to show provocation, what is it you are trying to show?” (R.T. 37.) Defense counsel responded, “I’m trying to show the state of mind of the defendant at the time of the act and whether he acted as a reasonable man.” (Ibid.)
The reasonable person standard as applied to the law of manslaughter is couched in terms of the legal adequacy of provocation, i.e., whether a reasonable person in the defendant’s position would have been provoked. The offer of proof requested the admission of cultural evidence on the issue of provocation or the reasonable person standard, and the court ruled that the cultural evidence was irrelevant to this issue. This ruling necessarily curtailed any proposed instruction that would pinpoint the defense theory that the cultural evidence could be considered on the issue of the adequacy of provocation.
B. The standard instructions on manslaughter did not inform the jurors that they were to evaluate the appellant’s conduct based upon the standpoint of a reasonable person in appellant’s position as an Ethiopian immigrant
Appellant argued that the standard CALJIC instructions given in this case on manslaughter in no way embraced the concept that the jury should evaluate the reasonableness of the appellant’s conduct based upon the standard of a reasonable person in the position of an Ethiopian immigrant. This court found that there was no sua sponte duty to instruct on this standard because it is adequately identified in CALJIC No. 8.42. In other words, the instruction proposed by appellant would be required sua sponte if it were not adequately identified in the standard CALJIC instructions.
According to this court, CALJIC No. 8.42 requires the jury to evaluate a defendant’s conduct from the standpoint of someone in the “circumstances in which the defendant was placed and the facts that confronted him. . . .” (Slip Opn. at p. 12 [Emphasis in original].) This court recognizes that the objective reasonable person standard in the case of provocation and self-defense necessitates consideration of the “defendant’s particular situation and circumstances.” (Ibid.) However, the phrase, “the circumstances in which the defendant was placed and the facts that confronted him,” does not impart to the jury how it is to evaluate the defendant’s personal cultural characteristics. The phrase, “facts that confronted him,” refers to what the victim actually did to him. The phrase, “the circumstances in which he was placed” refers to what happened to the defendant to get him to the place he was in. Thus, the fact that appellant came from Ethiopia, was abandoned by his wife in Atlanta, was told to get out after he and his wife moved in together in San Jose, was deprived of his family, was without his traditional support systems, was situated in an alien culture, all could be considered as appellant’s circumstances. However, telling the jurors that they could consider the defendant’s circumstances did not inform them that they were to evaluate the legal significance of these circumstances from the standpoint of a reasonable person in the position of an Ethiopian immigrant.
Further, according to this court, “[i]t is speculation that ‘traditional mainstream cultural bias is a given if the jury is not instructed to consider the defendant’s unique subculture in determining the question of objective reasonableness.’” (Slip Opn. at p. 11.) The reason for the speculation, according to this court, is that we don’t know the racial composition of the jury. Further, “the jurors were free to apply their version of community norms,” and it is speculation that these norms reflect a “majority culture.” (Ibid.)
If the jurors were “free to apply their version of community norms,” then which version did they apply? If there is no dominant community norm, then how did the jurors arrive at a decision based upon a common understanding of the community norm? It certainly cannot be surmised that the jurors would have applied the norms of behavior in the Ethiopian immigrant community. If they applied any agreed upon norm, then the norm they applied had to have been the majority cultural norm of behavior. This norm does not incorporate the Ethiopian immigrant.
Evidence of the fact that this norm did not incorporate the Ethiopian immigrant can be found in the defense psychologist’s (Dr. Reidy’s) testimony at trial. Dr. Reidy reinforced the dominant norm by explaining John Doe’s behavior in an American psychological construct of damaged attachments to care-providers during his childhood resulting in over-dependency on his wife. This court states that “[a]ccording to Dr. Thomas Reidy, a forensic psychologist, defendant was very dependent on Mrs. Doe because he had a history of damaged attachments.” (Slip Opn. at p. 3.) The defense cultural expert offered in vague terms another explanation for appellant’s behavior. The cultural expert explained that Ethiopians have much stronger ties to family than is the case in the U.S. He further stated that personal matters are only shared within the family. (R.T. 276-277.) He also explained that “entire villages” are involved in the lives of members of the village. (R.T. 277.) Thus, in the context of Ethiopian culture, the loss of a family member (such as John Doe’s father) is not a critical deprivation for the child because many other family members and community are present to step in. Moreover, John Doe’s abandonment by his wife in the U.S. would have been more psychologically devastating to him than to a similarly situated American male because the loss would have represented the loss of identity to John Doe. Identity for the Ethiopian is relational and based upon connection to the family and community. Mrs. Doe was the only community or family John Doe had in the U.S. Thus, the jurors should have been instructed to incorporate appellant’s cultural background in their consideration of what the norm of behavior was in a person in John Doe’s situation.
Without such an instruction in this case and cases like this, the likelihood of an incorrect result increases substantially. Whatever norm of behavior the jury would come up with would be divorced from reality.
C. The standard proposed by appellant in the briefs was not subjective
This court characterizes appellant’s argument as follows: “The jury should have been instructed to consider whether an ordinarily reasonable Ethiopian immigrant would have been provoked.” (Slip Opn. at p. 1.) This court states that in proposing such a standard, “defendant asks us to overturn long-standing precedent in favor of defendants setting up their own standards of provocation. . . .” (Id. at p. 12.) This court further states that “[i]f defendant has in mind an instruction overturning the reasonable person standard, counsel was not obliged to make a meritless request.” (Id. at p. 13.)
Appellant did not propose that this court overrule the objective test in favor of a subjective test. In fact, appellant requested that this court make the current test more objective and fair. There would, in fact, be less subjectivity if jurors were instructed to evaluate the adequacy of provocation from the standpoint of the circumstances of the accused. As appellant pointed out at oral argument, leaving it up to American jurors to formulate a standard for an Ethiopian immigrant is akin to leaving a jury panel composed of battered women to figure out for themselves how a reasonable person would react to a male batterer.
Appellant proposed in the Opening and Reply Briefs and at oral argument that “[t]he court should have instructed the jury that it was to determine whether the provocation was adequate to provoke a reasonable person in appellant’s position as an Ethiopian immigrant to lose self-control and to act on impulse.” (AOB at p. 35; see also Appellant’s Reply Brief at pp. 2-3.) This is an objective standard tied to a reasonable person in the defendant’s position; the same standard utilized in self-defense cases.[Footnote 9]
To be even more specific, appellant proposes that when cultural evidence is admitted to show that the defendant’s reaction to provocation was understandable, jurors should be instructed as follows:
“The [defendant] [and] [or] [the prosecution] has introduced evidence that the defendant has a cultural background that may be unique to you. Such cultural evidence may be relevant to your evaluation of whether the provocation in this case was of such a character and degree as to cause a reasonable person in the position of the defendant to have lost self-control and to have acted upon impulse rather than deliberation and reflection. You should give this evidence whatever weight you think it deserves. However, you may not reject this evidence out of caprice or prejudice because the defendant has cultural beliefs or practices different from your own.”
This proposed instruction should be given sua sponte for reasons set forth in appellant’s briefs: (1) If the same reasonable person standard applies in self-defense and provocation cases, and standard instructions in self-defense require the jury to evaluate self-defense from the defendant’s perspective, then standard instructions on provocation must do the same; (2) cultural evidence is novel and somewhat illusory for most jurors, and history has revealed that jurors need specific direction with respect to the relevance of cultural evidence to the issues; (3) the language of CALJIC No. 8.42 is ambiguous with respect to whether jurors can evaluate reasonableness from the standpoint of someone with the defendant’s cultural background.
D. When the language of CALJIC No. 8.42 is considered in conjunction with the prosecutor’s argument in this case, an ambiguity arises whether appellant’s Ethiopian culture was relevant to the question of objective reasonableness
This court holds that the jury must be instructed to consider the defendant’s cultural circumstances in determining whether his heat of passion was objectively reasonable. This court finds that this standard is embraced in CALJIC No. 8.42. (Slip Opn. at pp. 12-14.)
A jury must evaluate the provocation from the standpoint of someone in appellant’s position as an Ethiopian immigrant. If the jury does not do this sort of evaluation, then defendant’s cultural background is of no consequence to the issue of provocation.
There is language in CALJIC No. 8.42 which could have been interpreted by the jury as supporting the prosecutor’s argument that Ethiopian culture was irrelevant to the issue of provocation. What was required in this case from the standpoint of the defense was a legal and factual context for the jury to evaluate whether John Doe’s shame and humiliation would have been more severe because of his Ethiopian heritage than the shame and humiliation experienced by similarly situated males socialized in mainstream North America. However, CALJIC No. 8.42 informs jurors that they must evaluate the evidence from the standpoint of a reasonable person in the “same situation.” Is that person in the “same situation” someone sharing defendant’s cultural perspective, or the reasonable “Joe and Betty” as argued repeatedly by the prosecutor? (R.T. 502, 520-21, 540.) CALJIC No. 8.42 states that “[a] defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused. . . .” While this statement is correct in the abstract, it is confusing when the defendant has a unique cultural background which bears upon his state of mind and the issue of provocation. Jurors may believe that a defendant attempts to justify his conduct based upon his “own standard” when he or she requests the jurors to evaluate why cultural circumstances increased his humiliation above that experienced by the “ordinary person of average disposition” faced with the same circumstances.
Instructions in the context of self-defense require the jury to determine whether “the circumstances [are] such as would excite the fears of a reasonable person placed in a similar position” (CALJIC No. 5.12), “seeing and knowing the same facts.” (CALJIC No. 5.51.) However, there is no comparable language in these instructions expressly prohibiting a defendant from setting up his or her own standard of conduct in order to justify taking another’s life. Any such language would be superfluous because the instructions on self-defense state an objective standard. This language is potentially more harmful in the case provoked homicide because of the possibility of juror confusion.
The absence of any instruction clarifying the ambiguity created by the instruction and the prosecutor’s argument violated appellant’s right to due process of law. In this case “‘”there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’” (People v. Prettyman (1996) 14 Cal.4th 248, 272 quoting Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399].) The trial court had the constitutional obligation to clear away this ambiguity. A judge has a duty to give instructions that are meaningful and translated, not in terms of mere abstract law, but into facts of the particular case. [Citations.]” (United States v. Piccolo (6th Cir. 1983) 696 F.2d 1162, 1170.) Further, trial counsel had the duty to ensure that the jury considered appellant’s cultural circumstances in determining whether he acted on a heat of passion upon sufficient provocation. Neither the court nor counsel fulfilled this constitutional mandate.
II.
THIS COURT SHOULD VACATE ITS DECISION AND GRANT A REHEARING TO CONSIDER APPELLANT’S EQUAL PROTECTION CLAIM
In his opening brief, appellant made the following argument:
“Appellant acknowledges that there is no recognized equal protection right to a culturally specific evaluation of the element of provocation as it relates to the crime of manslaughter. However, he asks this court to recognize such a right. Appellant argues that equal treatment of ethnically diverse persons requires that if certain provocation involving acts of betrayal by a spouse (such as sleeping with another) is sufficiently offensive in mainstream American culture to reduce murder to manslaughter (see, e.g., People v. Bridgehouse (1946) 47 Cal.2d 406, 413-414; People v. Berry (1976) 18 Cal.3d 509, 514), acts of betrayal that are equally provocative in appellant’s culture should be treated as equally mitigating.”
This court’s response to this argument was as follows: CALJIC No. 8.42 “does not unconstitutionally discriminate against ethnic minority cultures or immigrants. No sua sponte instruction modifying CALJIC No. 8.42 was required.” (Slip Opn. at p. 13.) This Court also cites a Michigan Appellate Court case for the proposition that “‘persons in America are bound to abide by American legal doctrine and American courts are obligated to apply such doctrine.’” (Ibid. citing People v. Truong (1996) 218 Mich.App. 325, 553 N.W.2d 692, 699.)
Appellant did not ask the Court of Appeal to apply any other legal doctrine than the American legal doctrines of equal protection of the laws and due process of law. The equal protection issue is whether the “ordinarily reasonable person” is Ethiopian rather than American when the question is whether “the provocation [was] of the character and degree as naturally would excite and arouse passion” within the meaning of CALJIC No. 8.42. In this sense, a “reasonable Ethiopian immigrant” standard is compelled by the equal protection clause of the U.S. Constitution in this limited circumstance. [Footnote 10] While this court stated it would not overrule existing precedent and change the standard from a reasonable person to a reasonable Ethiopian immigrant, this court offered no reason other than stare decisis for its refusal to do so. However, the claim raised in this case is novel, and citation to prior opinions that never addressed the issue will not suffice.
The court’s answer to the equal protection question appears to be that the reasonable person is neither Ethiopian nor American, but some unidentified normative community standard. While the absence of specificity protects the interests of those raised in mainstream American culture, it does not protect those raised in immigrant cultures. This court should grant a rehearing to decide the merits of appellant’s equal protection claim.
CONCLUSION
For all of the foregoing reasons, appellant respectfully requests that this court grant his petition for rehearing.
DATED: February 26, 2001
Respectfully submitted,
_______________________
DAVID D. CARICO
Attorney for Appellant
PETITION FOR REHEARING FOOTNOTES (8-10):
Footnote 8: “THE COURT: Okay. Mr. Braker, again, we’ve discussed this at length in chambers and I have given an indicated ruling in chambers. I believe Ms. [Defense Counsel] is allowed to introduce this as it goes to state of mind of the defendant. And again, even though your point is well taken that it cannot show provocation, because provocation must come from the victim, I believe it is relevant to his state of mind, and as such it should be allowed.” (R.T. 37-38 [Emphasis added].)
Footnote 9: Appellant offered a modified version of the reasonable person standard with respect to his equal protection claim. In that claim, he argued that the standard as applied to provocation cases must be culturally specific, otherwise the standard would discriminate against ethnic minorites. Thus, a “reasonable Ethiopian immigrant” standard is appropriate. The “reasonable Ethiopian immigrant” standard is not subjective in this context. The defendant does not set up his own standard of conduct. The standard of conduct is the American legal standard of the reasonable person. However, this reasonable person is imbued with the characteristics of an Ethiopian immigrant.
Footnote 10: Unlike the situation with provocation, it would make no sense to change the standard in self-defense cases. The focus is on the defendant’s defensive actions, and whether those actions were reasonable. If any reasonable person in the defendant’s position would have believed himself in mortal danger, then the act of killing is justified, i.e., no criminal liability attaches because society welcomes the conduct.
However, provocation theory as it has been espoused in California does not judge whether the actor’s response to provocation is reasonable. The standard in provocation is not a true “reasonable person” standard because reasonable people do not kill unless it is in self-defense. Rather, the issue in provocation cases is whether the actor’s thinking would be overcome with an overwhelming passion so that he could not act reasonably so as to avoid the act of killing. The type of provocation that will cause a loss of self-control is highly culturally specific. It does not change the reasonable person standard to consider provocation from the standpoint of the Ethiopian immigrant rather than an American when the defendant is an Ethiopian immigrant.
SUPREME COURT No. ____________
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA 6 Crim. H000000
Plaintiff and Respondent, (Santa Clara County
Sup. Ct. No. C000000)
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________/
APPEAL FROM THE JUDGMENT OF
THE SUPERIOR COURT OF SANTA CLARA COUNTY
Honorable Robert P. Ahern, Judge Presiding
PETITION FOR REVIEW
AFTER THE UNPUBLISHED DECISION
OF THE COURT OF APPEAL, SIXTH APPELLATE DISTRICT
AFFIRMING THE JUDGMENT
OF CONVICTION
SIXTH DISTRICT APPELLATE PROGRAM
In Association With
DAVID D. CARICO
Attorney at Law
215 West Franklin Street, Suite 309
Monterey, CA 93940
Telephone: (831) 646-0372
State Bar No. 109269
Attorney for Appellant,
John Doe
APPELLANT’S PETITION FOR REVIEW
TO CHIEF JUSTICE RONALD M. GEORGE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:
John Doe, defendant and appellant in this matter, hereby petitions for review following the decision rendered by the Court of Appeal, Sixth Appellate District, filed February 16, 2001, affirming the judgment of conviction. A copy of the decision of the Court of Appeal is attached hereto as Exhibit A.
QUESTIONS PRESENTED
1. Was the appellant deprived of his right to due process of law and a jury trial under the Fifth, Sixth, and Fourteenth Amendments and article I, sections 7, 15 and 16 of the California Constitution because the court failed to clear away any ambiguity created by the instructions and the prosecutor’s argument that evidence of appellant’s unique cultural circumstances was relevant to the issue of whether a reasonable person in his position would have lost self-control and acted on impulse and without judgment due to the victim’s provocation?
2. Do trial judges have a sua sponte duty to instruct jurors on the relevance of cultural evidence to the reasonable person standard as that standard is used in the definition of legally adequate provocation to reduce an intentionally felonious homicide from murder to manslaughter?
3. Is there an Equal Protection and Due Process right to a culturally specific evaluation of the element of provocation as it relates to the crime of manslaughter? Or, in other words, does it offend principles of due process and equal protection that provocation which is sufficiently offensive to an unacculturated immigrant to cause the immigrant to act on impulse and without reflection is treated as murder rather than manslaughter because the provocation is deemed insufficient in mainstream American culture?
SUMMARY AND REASONS FOR GRANTING REVIEW
John Doe is an Ethiopian Immigrant who emigrated to the U.S. in 1996 at the age of 29. He is Christian and from the Amhara tribe or group in Ethiopia. He came to the U.S. with his wife Mrs. Doe who was Muslim and from the Oromo tribe. The two tribes have historically had a great animosity for each other in Ethiopia, and those ethnic tensions carry over into Ethiopian communities in the U.S. in politically active groups.
John Doe and Mrs. Doe settled in Georgia with Mrs. Doe’s Muslim sponsors. The couple had been in the United States for approximately a year when Mrs. Doe began speaking to John Doe about his converting to Islam. Mrs. Doe then left John Doe without warning and moved in with a girlfriend in San Jose. Distraught, John Doe attempted to located Mrs. Doe and finally did so. The couple reconciled and John Doe moved to San Jose. The couple lived together for three months in San Jose at which time Mrs. Doe told John Doe he had five days to leave. John Doe had no other family or friends in the area. An Ethiopian cultural expert for the defense testified that family ties are stronger in Ethiopian culture than is the case in mainstream American culture. Further, the cultural isolation experienced by an Ethiopian immigrant is intense as Ethiopians share personal problems only within the family.
John Doe was devastated. He became depressed and threatened to commit suicide. He called upon Mrs. Doe’s girlfriend to help the couple out. The girlfriend’s efforts to help the couple failed. John Doe stayed home from work a couple of days. He had never missed work before. Mrs. Doe returned home from work and the couple had an argument in the kitchen. Mrs. Doe began spitting on John Doe. In Ethiopian culture, spitting is the most offensive thing you can do to another person short of killing him. John Doe reacted to this by repeatedly stabbing Mrs. Doe in a frenzy with several different kitchen knives. He then attempted to kill himself and came very close to doing so. He cut his wrist with a knife and drank a bottle of Draino drain cleaner. Police officers found him vomiting blood and writhing on the floor. He was convicted of second degree murder.
The prosecutor moved in limine to exclude the testimony of the cultural expert on the grounds that cultural evidence would change the reasonable person standard from a reasonable person to a reasonable Ethiopian immigrant. (R.T. 34.) The trial judge allowed the cultural expert to testify, but ruled that his testimony was relevant only to the defendant’s state of mind and could not be used to show provocation. (C.T. 121; R.T. 37-38.) The trial judge mused that “provocation must come from the victim.” (R.T. 38.) The court gave standard instructions on manslaughter including CALJIC No. 8.42 which proclaims that the provocation from the victim must be such as to cause an ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection. The prosecutor argued to the jury that this instruction meant it was to decide the question of reasonableness without reference to Ethiopian culture: a reasonable “Joe or Betty” standard. (R.T. 502, 520-21, 540.) The prosecutor compared the act of “spitting” to a “slap” in the face or a kid who “blows someone’s head off because they called him names.” (R.T. 541.) Defense counsel suggested that the jurors had to put themselves in the “shoes of the defendant” in order to evaluate the reasonableness of his actions. (R.T. 520-521.) The prosecutor objected. (R.T. 521.) The court told the jury it would allow both counsel some “latitude” in their final summations. (R.T. 521.) No effort was made by the judge to clear away the likely confusion engendered by the prosecutor’s argument with appropriate instruction to the jury.
The Court of Appeal in this case holds that in the case of manslaughter, like self-defense, the jury must evaluate the defendant’s conduct from the standpoint of a reasonable person in the defendant’s position. According to the Court of Appeal, the jury was “required to consider defendant’s particular situation and circumstances.” These circumstances included “evidence of defendant’s Ethiopian background.” (Opinion at p. 12.) Appellant has no quarrel with this aspect of the Court of Appeal’s holding. However, the Court of Appeal goes on to state that CALJIC No. 8.42 was adequate to impart this concept to the jury because it instructed the jury to ”evaluate defendant by the standard of ‘an ordinarily reasonable person in the same circumstances . . . ” (Opinion at p. 12.)
Rule 29(a) of the California Rules of Court provides that this court will order review of a Court of Appeal decision “where it appears necessary to secure uniformity of decision or the settlement of important questions of law.” Here, neither the trial court nor the prosecutor believed that evidence of appellant’s Ethiopian culture was relevant to the objective reasonableness standard as applied to provocation. Their belief in this regard is by no means an isolated occurrence.
Despite the Court of Appeal’s holding to the contrary, it is clear that attorneys and the courts are unable to glean from CALJIC No. 8.42 that they must permit jurors to evaluate the issue of reasonableness from the standpoint of someone in the defendant’s position (in this case, from the standpoint of someone in the defendant’s position as an Ethiopian immigrant). The position of the trial judge in this case is inconsistent with an unreported decision where the Court of Appeal reversed the murder conviction of a Chinese national because the trial court had refused to give a defense instruction on the relevance of cultural information to the presence or absence of legally adequate provocation. On retrial, the jury returned a verdict of manslaughter. (People v. Wu (E007993; Oct. 24, 1991.)
Appellant contends that CALJIC No. 8.42 is insufficient standing alone to inform the jury it is to evaluate the sufficiency of provocation from the standpoint of a reasonable person in the defendant’s position as an Ethiopian immigrant. There was a reasonable possibility that the jurors could have interpreted CALJIC No. 8.42 to preclude consideration of the sufficiency of provocation from the defendant’s perspective. (People v. Prettyman (1996) 14 Cal.4th 248, 272 quoting Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399].) There should be a sua sponte obligation to instruct on the relevancy of cultural evidence to the reasonable person standard whenever cultural evidence is offered in a manslaughter case to establish the element of provocation. In the case of self-defense, a court has a sua sponte obligation to instruct jurors that the facts and circumstances are to be evaluated from the defendant’s individual viewpoint. (See CALJIC Nos. 5.12 & 5.51; People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083, 1087; People v. Minifie (1996) 13 Cal.4th 1055, 1065.) The Court of Appeal in this case finds this legal principle applicable to manslaughter (Slip Opinion at p. 12), but then inexplicably holds there is no sua sponte duty to instruct on this principle. (Id. at p. 13.)
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The Model Penal Code has guidelines that take the defendant’s cultural background into consideration. The Model Penal Code finds manslaughter when a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. “The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.” (Model Penal Code § 210.3(1)(b) (Proposed Official Draft 1962).) Similar language is found in instructions on self-defense in California, but no such language is included in CALJIC No. 8.42. It should be.
Additionally, appellant advances the claim that under the Equal Protection and Due Process Clauses, provocation that is sufficiently offensive in appellant’s culture to cause a reasonable Ethiopian immigrant male to act on impulse and without reflection should be treated as manslaughter and not murder. This court should grant review to settle this important question and secure uniformity of decision in the courts.
STATEMENT OF THE CASE
Appellant was charged with a single count of murder (Pen. Code, § 187) and with an enhancement for use of a knife (Pen. Code, § 12022(b)(1)). He was convicted of murder following a jury trial and sentenced to an indeterminate life term of 15-years-to-life with a consecutive one-year term for the use enhancement. (C.T. 224-225, 231.)
Appellant filed the Appellant’s Opening Brief on December 2, 1999. On January 17, 2001, appellant filed a writ of habeas corpus in the related case of In re John Doe (H022485). On January 26, 2001, the Court of Appeal asked the Attorney General to file an informal response to the habeas petition. On February 16, 2001, the Court of Appeal filed its opinion affirming the judgment in the instant case. On February 23, 2001, the Court of Appeal denied appellant’s request to consider the appeal and writ together as moot. The Court of Appeal has yet to issue an order with respect to the habeas petition.
STATEMENT OF FACTS
Prosecution Evidence
The Incident
On May 1, 1998, Mr. H was awakened at 5:45 a.m. by the sound of someone screaming and saying “no.” (R.T. 55-63.)
Officer John Tompkins was dispatched to 255 North Third Street at 6:19 a.m. In the kitchen was the dead body of a woman lying on her back somewhat propped up against the stove. The woman had been stabbed numerous times with several kitchen steak knives. Broken steak knives lay scattered about the kitchen. (R.T. 89-93.)
John Doe was flat on the floor in the living room in a pool of his own vomit writhing with pain. (R.T. 80-88.) A kitchen knife was underneath his legs. He had slashed his wrist and drunk a bottle of liquid Draino.
Ms. G met John Doe and Mrs. Doe in Ethiopia. They worked together at Care International for five to six years. John Doe and Mrs. Doe were married in Ethiopia. In the beginning of 1996, a year or so after their marriage, John Doe and Mrs. Doe emigrated to the United States. They settled in Atlanta, Georgia. Mrs. Ms. G emigrated to the United States with her husband in the later part of 1996. Ms. G eventually settled in San Jose in the latter part of 1997. Ms. G spoke with John Doe and Mrs. Doe by telephone on a weekly basis. In December 1997, Mrs. Doe told Ms. G that she did not want to live with John Doe anymore. (R.T. 147-157.) This was surprising to Ms. G because she had never observed any problems in John Doe’s and Mrs. Doe’s marriage. Mrs. Doe gave no reason for wanting to leave. About 15 days later, Mrs. Doe called Ms. G and told her she was leaving John Doe and coming to San Jose to stay with Ms. G. Mrs. Doe moved in with Ms. G around Christmas time in 1997. Mrs. Doe did not tell John Doe she was leaving. Mrs. Doe asked Ms. G not to tell John Doe where she was. (R.T. 161-163, 171-179.)
Mrs. Doe and John Doe later reconciled and John Doe moved to San Jose. During the last week of April 1998, Mrs. Doe told Ms. G that she did not want to live with John Doe anymore. John Doe asked Ms. G to intervene and speak with Mrs. Doe. John Doe told Ms. G that he and Mrs. Doe were not speaking to each other. John Doe was humiliated by this silence especially when it occurred in front of his Ethiopian co-workers. (R.T. 164-184.)
Defense Case
John Doe testified that he was born in Ethiopia on January 1, 1967. He earned a degree in physics and went to work for Care International Relief Organization on October 5, 1990. Mrs. Doe came to work for Care in 1991 and John Doe was her supervisor. They became boyfriend and girlfriend. In 1996, Mrs. Doe and John Doe applied for the Visa lottery to emigrate to the United States. Mrs. Doe’s name was selected. John Doe and Mrs. Doe were married and then emigrated to Atlanta, Georgia in 1996. (R.T. 192-195.)
John Doe had no friends or family in Atlanta. John Doe and Mrs. Doe lived with their sponsor for the first three months and then got an apartment of their own. When John Doe came home from work and found that Mrs. Doe had left him he was very upset. She left a note saying that she was visiting a friend whose father had just died but she left no phone number. John Doe made inquiries and the sponsor told him that Mrs. Doe had left Atlanta. John Doe blamed himself. He thought Mrs. Doe had left because he would not convert to Islam. John Doe was Christian and Mrs. Doe Muslim. He was confused and frustrated. (R.T. 197-200, 223, 237-238, 268.)
John Doe became suicidal. He eventually found out through Ms. G that Mrs. Doe was staying with her. John Doe moved to San Jose at the end of January 1998 and got a job at Atmel where Mrs. Doe was working. All seemed well until Tuesday, April 28th when Mrs. Doe told him that she wanted him to move out. He became depressed and
stayed home from work. He threatened to drink Liquid Draino if Mrs. Doe left him. Mrs. Doe took the chemical away from him. He suffered from insomnia. (R.T. 209-212, 240-243.)
On Wednesday, April 29th, John Doe again tried to convince Mrs. Doe to stay with him. Ms. G joined them for lunch and they discussed their difficulties. On Thursday, John Doe stayed home from work. (R.T. 243-244.)
John Doe lay awake when Mrs. Doe arrived home from work at about 5:25 a.m. on Friday, May 1, 1998. She asked him why he wasn’t working. They began arguing in the kitchen. Mrs. Doe accused John Doe of being a loafer. John Doe responded that this was the first time he had ever missed any work. Mrs. Doe demanded that John Doe leave; she wanted him out of her sight. John Doe begged her to let him stay at which time Mrs. Doe spit in his face. John Doe told her not to spit on him but she continued to do so. John Doe was crying. The spitting made him feel worthless. It was an extreme insult to be spit on in Ethiopia. It meant you were no better than garbage. John Doe grabbed something and stretched his hand toward Mrs. Doe a couple of times as she was coming toward him. He did not remember picking up a knife. He helped Mrs. Doe to the floor and then saw the blood. (R.T. 212-215, 219-221.) John Doe did not remember holding the knife under Mrs. Doe’s chin or against her face. (R.T. 264-265.)
John Doe wanted to kill himself. He was confused and panicked. He took a knife from the drawer and ran about the apartment with the knife in his hand. He called 911 but did not speak to anyone. In the bathroom he cut his wrist. He found the bottle of Liquid Plumber and drank it. He then used the knife he was carrying to cut his wrist. When the police arrived he told them to kill him. (R.T. 217-219, 257-264.)
Cultural Evidence
Awetu Simesso, a professor of African-American studies, testified for the defense. He stated that in Ethiopia, both the nuclear and extended family are very close. Entire villages will travel to the airport to wish a family member farewell. Eighty-five percent of the country is still rural. Friends are chosen with care and there is an unspoken Ethiopian loyalty that friendships will continue for a lifetime. Personal matters and feelings are shared within the circle of family and close friends, but it is considered undignified to talk with others about personal troubles. A group of elders mediate marital disputes. This kind of support structure is very hard to establish in the United States. (R.T. 276-280, 300-301.)
The two major religions within Ethiopia are Christianity and Islam. Historically, there have been great tensions between these religious groups which is still the case in politically active groups. Normally, when two people of different religions marry, one person converts. (R.T. 281-286, 298.)
Ethiopia is still a patriarchal society, and for a woman to leave her husband without explanation would cause the husband to suffer a great deal of shame and humiliation. Ethiopia has a more medieval puritan society than the United States and gestures have more meaning attached to them. In Ethiopia, there is no greater insult than spitting on someone. It is a declaration of war for a man to spit on another man. When a woman spits on a man, she is telling him he is useless and out of her life. (R.T. 287-288, 295-297.)
Psychiatric Evidence
Dr. Thomas Reidy, a forensic psychologist, was retained by the defense to evaluate John Doe’s mental state at the time he killed his wife. John Doe’s suicide attempt indicated extreme despair, desperation, and perhaps guilt. (R.T. 304-325, 326-329, 334-335.) It was not surprising to Dr. Reidy that John Doe did not have total recall of the killing given the highly emotionally charged state he was in at the time. (R.T. 330-332, 338.) The multiple stab wounds were consistent with someone in a highly charged emotional state. (R.T. 338-339.)
Prosecution’s Rebuttal
Dr. Parviz Pakdaman, a medical examiner for Santa Clara County, performed the autopsy on Mrs. Doe. There were superficial cuts on Mrs. Doe’s face. There were two superficial cuts beneath the chin. (R.T. 443-450.) There were slash type wounds on the victim’s arms which appeared to be defensive injuries. There were stab wounds in the center of the chest and the right side of the chest. Two of the wounds entered the heart. (R.T. 449-456.)
ARGUMENT
I.
THIS COURT SHOULD GRANT REVIEW TO SETTLE THE IMPORTANT QUESTION OF LAW AND ESTABLISH UNIFORMITY OF DECISION WHETHER CALJIC NO. 8.42 STANDING ALONE IS SUFFICIENT TO CLEAR AWAY ANY AMBIGUITY THAT THE LEGAL SUFFICIENCY OF PROVOCATION IS TO BE DETERMINED FROM THE STANDPOINT OF A REASONABLE PERSON SHARING THE IMMIGRANT DEFENDANT’S UNIQUE CULTURAL CIRCUMSTANCES
In People v. Valentine (1946) 28 Cal.2d 121, at page 139, this court stated that “the conduct of the defendant is to be measured by that of the ordinarily reasonable man placed in identical circumstances, . . . [and] the exciting cause must be such as would naturally tend to arouse the passion of the ordinarily reasonable man.” Likewise, standard instructions on self-defense require the jurors to place themselves in the shoes of the defendant with his knowledge and perception in evaluating real or apparent danger. (See CALJIC No. 5.51 [“a reasonable person in a like situation, seeing and knowing the same facts . . . ”]; CALJIC No. 5.12 [“a reasonable person placed in the same situation”].)
In People v. Humphrey, supra, 13 Cal.4th 1073, this Court approved the use of expert testimony on the issue of the reasonableness of a defendant’s belief in the need for self-defense. The evidence of battered women’s syndrome is relevant “‘to explain a behavior pattern that might otherwise appear unreasonable to the average person. Evidence of [battered women’s syndrome] not only explains how a battered woman might think, react, or behave, it places the behavior in an understandable light.’” (Id. at p. 1088 quoting People v. Day (1992) 2 Cal.App.4th 405, 419.)
The subculture of the battered woman illustrates the need for jury instructions informing the jury of the relevance of the subculture to the reasonable person standard. Standard instructions on self-defense require the jury to evaluate the appearance of danger from the standpoint of a “reasonable person in a like situation, seeing and knowing the same facts. . . .” (CALJIC No. 5.51.) However, notwithstanding the directive of CALJIC No. 5.51 to consider the circumstances from the standpoint of the accused, early Court of Appeal decisions held that BWS was irrelevant to the question of objective reasonableness. (See, e.g., People v. Aris (1989) 215 Cal.App.3d 1178, 1196, overruled by People v. Humphrey, supra, 13 Cal.4th 1073.) Thus, even when the jury instructions directed the jury to evaluate objective reasonableness from the standpoint of the accused (which standard instructions on provocation do not), this directive did not include the accused’s subculture within his personal circumstances.
CALJIC No. 8.42 as given to the jury provided in pertinent part:
“The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation.”
The question is whether this instruction was adequate to impart to the jurors that they were to evaluate the sufficiency of provocation from the standpoint of a reasonable person sharing appellant’s cultural circumstances. Appellant contends that it is not sufficient.
The phrase, “the circumstances in which the defendant was placed and the facts that confronted him,” does not impart to the jury how it is to evaluate the defendant’s personal cultural characteristics. The phrase, “facts that confronted him,” refers to what the victim actually did to him. The phrase, “the circumstances in which he was placed” refers to what happened to the defendant to get him to the place he was in. Thus, the fact that appellant came from Ethiopia, was abandoned by his wife in Atlanta, was told to get out after he and his wife moved in together in San Jose, was deprived of his family, was without his traditional support systems, was situated in an alien culture, all could be considered as appellant’s circumstances. However, telling the jurors that they could consider the defendant’s circumstances did not inform them that they were to evaluate the legal significance of these circumstances from the standpoint of a reasonable person in the position of an Ethiopian immigrant.
Further, there is language in CALJIC No. 8.42 which could have been interpreted by the jury as supporting the prosecutor’s argument that Ethiopian culture was irrelevant to the issue of provocation. What was required in this case from the standpoint of the defense was a legal and factual context for the jury to evaluate whether John Doe’s shame and humiliation would have been more severe because of his Ethiopian heritage than the shame and humiliation experienced by similarly situated males socialized in mainstream North America. However, CALJIC No. 8.42 informs jurors that they must evaluate the evidence from the standpoint of a reasonable person in the “same situation.” Is that person in the “same situation” someone sharing defendant’s cultural perspective, or the reasonable “Joe and Betty” as argued repeatedly by the prosecutor? (R.T. 502, 520-21, 540.) CALJIC No. 8.42 states that “[a] defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused. . . .” While this statement is correct in the abstract, it is confusing when the defendant has a unique cultural background which bears upon his state of mind and the issue of provocation. Jurors may believe that a defendant attempts to justify his conduct based upon his “own standard” when he or she requests the jurors to evaluate why cultural circumstances increased his humiliation above that experienced by the “ordinary person of average disposition” faced with the same circumstances.
In People v. Saille (1991) 54 Cal.3d 1103, this court held that a trial court has no sua sponte to instruct on the relationship between intoxication and premeditation and deliberation. However, the presentation of cultural evidence necessitates instructions in a way in which evidence of intoxication does not. Jurors can rely on their own experience and common sense in determining the effect of intoxication upon mental state without specific instruction from the trial court. Penal Code sections 22 and 28 state that a defendant’s intoxication or mental defect is relevant to his mental state when a specific intent crime is charged. There is no similar statutory provision stating that cultural evidence is relevant to issues of mental state. Thus, as occurred in this case, judges are inclined to give the attorneys leeway to argue their own versions of the relevance of cultural evidence. This state of affairs is intolerable. History has taught that it cannot be assumed that attorneys, judges, or jurors will know the purposes for which cultural evidence may be considered. It is time for this Court to give specific instructional direction on the relevance of cultural evidence to the issues the jury must decide.
Thus, when cultural evidence is admitted to show that the defendant’s reaction to provocation was understandable, jurors should be instructed as follows:
“The [defendant] [and] [or] [the prosecution] has introduced evidence that the defendant has a cultural background that may be unique to you. Such cultural evidence may be relevant to your evaluation of whether the provocation in this case was of such a character and degree as to cause a reasonable person in the position of the defendant to have lost self-control and to have acted upon impulse rather than deliberation and reflection. You should give this evidence whatever weight you think it deserves. However, you may not reject this evidence out of caprice or prejudice because the defendant has cultural beliefs or practices different from your own.”
This Court should grant review to settle the important question of law and public policy whether trial court’s must give specific direction to jurors regarding the relevance of cultural evidence in manslaughter cases. Review is required for the additional reason that disparate decisions of the Courts of Appeal have created confusion concerning this issue in the trial and appellate courts.
II.
THIS COURT SHOULD GRANT REVIEW TO SETTLE THE IMPORTANT QUESTION OF LAW WHETHER THERE IS
AN EQUAL PROTECTION AND DUE PROCESS RIGHT TO A CULTURALLY SPECIFIC EVALUATION OF THE
ELEMENT OF PROVOCATION AS IT RELATES TO THE CRIME OF MANSLAUGHTER
Appellant acknowledges that there is no recognized equal protection right to a culturally specific evaluation of the element of provocation as it relates to the crime of manslaughter. However, he asks this Court to recognize such a right. Equal treatment of ethnically diverse persons requires that if certain provocation involving acts of betrayal by a spouse (such as sleeping with another) is sufficiently offensive in mainstream American culture to reduce murder to manslaughter (see, e.g., People v. Bridgehouse (1946) 47 Cal.2d 406, 413-414; People v. Berry (1976) 18 Cal.3d 509, 514), acts of betrayal that are equally provocative in appellant’s culture should be treated as equally mitigating.
The Court of Appeal’s response to this argument was as follows: CALJIC No. 8.42 “does not unconstitutionally discriminate against ethnic minority cultures or immigrants. No sua sponte instruction modifying CALJIC No. 8.42 was required.” (Slip Opn. at p. 13.) The Court of Appeal also cited a Michigan Appellate Court case for the proposition that “‘persons in America are bound to abide by American legal doctrine and American courts are obligated to apply such doctrine.’” (Ibid. citing People v. Truong (1996) 218 Mich.App. 325, 553 N.W.2d 692, 699.)
Appellant did not ask the Court of Appeal to apply any other legal doctrine than the American doctrine of equal protection of the laws and due process of law. The issue to be addressed in this case with respect to the reasonable person standard is very different from other arguments advanced before the Courts of Appeal with respect to “Hispanic street fighters.” Appellant does not advocate that we should partially excuse a gang slaying because gang members live in a subculture of violence. In this case, it is highly unlikely that John Doe would have killed his wife had he been placed in the identical circumstances in his native country in Ethiopia. Here he was without traditional systems of support, socially isolated, and in an alien culture. Recognition of John Doe’s Ethiopian culture does not condone violence. John Doe would not have committed an act of violence where he within his cultural context, and the unavailability of that context in the U.S. is a critical factor leading to the violence in this case which the jury should be instructed to consider.
“‘[T]he defense [of provocation] entails a denial that the defendant’s actions were entirely wrongful in the first place, [implying] that the defendant was partially justified in reacting as he or she did because of the untoward conduct of his or her victim.’” (See Heller, Beyond the Reasonable Man? A Sympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases (1998) 26 Am. J. Crim. L. 1, 19.) In this case, appellant’s wife was aware of the fact that her behavior was likely to cause appellant to experience intense shame because of the degrading effect of her conduct upon her husband, and she nevertheless proceeded with this conduct. Thus, an accurate portrayal of the legal sufficiency of provocation requires an examination of cultural circumstances of both the defendant and the victim.
What was required in this case was a legal and factual context for the jury to evaluate whether John Doe’s shame and humiliation would have been more severe because of his Ethiopian heritage than the shame and humiliation experienced by similarly situated males socialized in mainstream North America. The instructions given the jury in this case in no way asked them to resolve this critical issue.
A. A classification which considers mainstream culture but precludes consideration of ethnic culture in determining mitigation for crime invidiously discriminates on the basis of race or ethnicity
“Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.” (Baxtrom v. Herold (1966) 383 U.S. 107, 111 [15 L.Ed.2d 620, 86 S.Ct. 760].) “The equal protection issue is whether actual distinctions in the statutory classes realistically justify disparities in treatment under the appropriate standard of revue.” (In re Huffman (1986) 42 Cal.3d 552, 561.)
What a “reasonable person” finds so offensive as to arouse a heat of passion is dependent upon the socio-cultural context in which the person finds himself or herself. When the defendant’s socio-cultural context is considered the norm, then the “objective” test matches his or her “subjective” belief system. [Footnote 11] (Delgado, Shadowboxing: An Essay on Power (1992) 77 Cornell L.Rev. 813, 818, fn. 31.)
The Court of Appeal in this case interprets appellant’s request for a standard which measures reasonableness from the standpoint of a person in appellant’s position as an Ethiopian immigrant to be an attempt to “set[] up [his] own standard[] of provocation.” (Slip Opn. at p. 12.) This characterization of appellant’s position is an example of dominant cultural bias. It is no less reasonable for an Ethiopian male to lose self-control because of his abandonment by his wife than it is for an American male to lose self-control because of his wife’s infidelity. To be truly objective, the reasonable person standard must take into account cross-cultural differences. Thus, in this case, if the provocation is adequate to provoke a reasonable person in appellant’s position as an Ethiopian immigrant to lose self-control and to act on impulse, then a subsequent killing under the smart of that provocation should be deemed to be manslaughter.
In manslaughter, “[t]he basic moral question . . . is distinguishing between those impulses to kill as to which we as a society demand self-control, and those as to which we relax our inhibitions.” (Fletcher, Rethinking Criminal Law (1978) p. 247.) The law recognizes that certain provocation will push a man over the threshold of his ability to exercise self-control of his violent nature. [Footnote 12] It cannot be proven empirically that there are certain types of provocation which universally cause men to lose self-control. The types of provocation which will cause a man to lose self-control are culturally-specific. Thus, equal treatment under the laws demands that the courts recognize culturally-specific factors which cause a man (or a woman as the case may be) to lose self-control.
Defining what is adequate provocation to mitigate a crime based upon the subjective standards of the dominant culture invidiously discriminates against ethnic minorities who have not acculturated to the American mainstream. The Fourteenth Amendment was adopted to prevent legal discrimination against racial minorities. “A racial classification, regardless of the purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. [Citations.] This rule applied as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination.” (Massachusetts v. Feeney (1979) 442 U.S. 256, 272 [99 S.Ct. 2282, 2292].) In this case, the avowed purpose of the use of the “reasonable person” standard is discriminatory: to preclude the jury from deciding appellant’s fate based upon a reasonable Ethiopian immigrant standard.
The classification at issue also discriminates against unacculturated ethnic minorities by punishing them more severely than persons of the dominant culture. A minority culture individual who kills in the heat of passion upon provocation which his culture deems sufficient to cause the individual to lose self-control harbors no more culpable mental state than the dominant culture individual who kills in the heat of passion. An Ethiopian immigrant who kills in the heat of passion because his wife has abandoned him is no more culpable than the member of the dominant culture who kills his wife because of infidelity. The offenders are similarly situated as the crimes are alike in “‘the reasons and motive of the criminal, the outrage and harm to the victim, and the potential for danger to the victim and society in general.'” (People v. Macias (1982) 137 Cal.App.3d 465, 473 quoting People v. Karsai (1982) 131 Cal.App.3d 224, 244.)
B. There is no compelling state interest, or even rational basis, for a legal standard for provocation that takes into account the subjective viewpoint of the accused but precludes consideration of the accused’s culture in determining whether his subjective viewpoint is reasonable
Classifications based upon race are presumptively invalid and can be upheld only upon an extraordinary justification. Similarly, since sentencing has a relationship to a defendant’s personal liberty, the defendant’s interest in sentencing is fundamental. (People v. Terflinger (1978) 77 Cal.App.3d 302, 303 citing People v. Olivas (1976) 17 Cal.3d 236, 251.) “Thus, the State must establish that it has a compelling interest which justifies the law and the State must demonstrate that the distinctions drawn by the law are necessary to further that purpose.” (People v. Terflinger, supra, 77 Cal.App.3d at p. 304; see also In re Huffman, supra, 42 Cal.3d 552, 557, 561.) Here, the classification at issue affects appellant’s personal liberty: persons in appellant’s class are deprived of their personal liberty by longer terms of imprisonment than “similarity situated” offenders. (People v. Olivas, supra, 17 Cal.3d 236, 239.)
The state has at its disposal the devices of cross-examination and compulsory process to ensure that cultural factors played an important role in the homicide. Cross-examination can discern whether the individual has acculturated to the United States and no longer abides by or practices the cultural values of his or her country of origin. The prosecution can call rebuttal experts to rebut testimony of defense experts concerning the cultural practices and beliefs of the defendant’s culture. (See Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts? (1995) 70 N.Y.U.L. Rev. 36, 91-94; State v. Her (Minn. App. 1994) 510 N.W.2d 218 [in a rape prosecution, prosecutor presented evidence a Hmong woman would not seduce a Hmong man].)
The interests of the state in a “one standard fits all” formula do not outweigh the constitutional interests of the defendant to a culturally specific evaluation of the element of provocation as it relates to the crime of manslaughter. A defendant must be punished according to the culpability of his mental state rather than his inability to fashion a defense that meets the current legal standard of the man of average disposition in the dominant culture. The changing nature of our pluralistic society requires our legal doctrine to change as well. Accordingly, this court should grant review to determine the important legal question of whether the “ordinarily reasonable person” is Ethiopian rather than American when the question is whether “the provocation [was] of the character and degree as naturally would excite and arouse passion” in an Ethiopian immigrant within the meaning of CALJIC No. 8.42.
CONCLUSION
Appellant respectfully requests that review be granted.
DATED: February 26, 2001
Respectfully submitted,
______________________
DAVID D. CARICO
Attorney for Appellant
PETITION FOR REVIEW FOOTNOTES (11-12):
Footnote 11: What the dominant culture deems to be a mitigating circumstance is also subject to change. In a by-gone era, the act of spitting on someone would have been considered legally sufficient provocation if the recipient returned the favor by killing the offender. (State v. Weaver (1798) 3 N.C. 216.) Additionally, despite recent California case law proclaiming that a simple assault cannot establish adequate provocation for manslaughter, this was not the case at the turn of the century. (Contrast People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704-1705 with People v. Jones (1911) 160 Cal. 358, 368.)
Footnote 12: Since domestic violence is overwhelmingly a problem of male violence directed toward female cohabitants, the discussion will focus specifically on mitigation of male violence.
