SERIES 800 ASSAULTIVE AND BATTERY CRIMES
F 851 Testimony On Intimate Partner Battering And Its Effects: Offered By The Defense (EC 1107(a))
TABLE OF CONTENTS
F 851.1 Titles And Identification Of Parties
F 851.1 Inst 1 Testimony On Intimate Partner Battering And Its Effects: Offered By The Defense—Title
F 851.1 Inst 2 Identification Of Prosecution And Defendant
F 851.2 Testimony On Intimate Partner Battering And Its Effects: Offered By The Defense—Additional Issues
F 851.2 Inst 1 Battered Person Evidence May Be Considered As To Defendant’s Credibility (CJ 9.35.1 Format)
F 851.2 Inst 2 Modification Of Burden Shifting Language
F 851.2 Inst 3 A Previously Battered Person Has The Right To Act More Quickly And Harshly In Self-Defense
F 851.2 Inst 4 Impact Of Prior Assault And Battery On Defendant Applicable To Any Person
F 851.2 Inst 5 Deletion Of Limiting Language Informing Jurors That Expert Testimony Is Not Evidence Of Defendant’s Guilt
F 851 NOTES
F 851 Note 1 Testimony on Intimate Partner Battering and Its Effects: Offered by the Defense —CALCRIM Cross-References And Research Notes
F 851 Note 2 Battered Woman/Child Syndrome: Jury Must Consider Objective Standard In Light Of Defendant’s Past Experience (EC 1107)
F 851 Note 3 Battered Women’s Syndrome (BWS): Admissibility Of Expert Opinion Concerning Defendant’s Actual State Of Mind At The Time Of The Crime
F 851 Note 4 Use Of Battered Person’s Syndrome By Prosecution
F 851 Note 5 Battered Women Syndrome: Writ Of Habeas Corpus
F 851 Note 6 Applicability Of Battered Person Syndrome To Imperfect Self-Defense
F 851 Note 7 Battered Person Syndrome: Failure To Request Pinpoint Instruction As Ineffective Assistance Of Counsel
F 851 Note 8 Battered Person Syndrome: Required Foundation
F 851 Note 9 Charged Offense May Not Be Used To Show Propensity Under EC 1107
F 851 Note 10 Battered Person Expert To Negate Malice Or Support Self-Defense Theory
Return to Series 800 Table of Contents.
F 851.1 Titles And Identification Of Parties
F 851.1 Inst 1 Testimony On Intimate Partner Battering And Its Effects: Offered By The Defense—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 851.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 851.2 Testimony On Intimate Partner Battering And Its Effects: Offered By The Defense—Additional Issues
F 851.2 Inst 1 Battered Person Evidence May Be Considered As To Defendant’s Credibility (CJ 9.35.1 Format)
*Replace CC 851, paragraph 3, with the following:
You should consider this evidence for certain limited purposes only, namely,
[That the [alleged victim’s] [defendant’s] reactions, as demonstrated by the evidence, are not inconsistent with [her][him] having been physically abused] [, or]
[The beliefs, perception or behavior of victims of domestic violence] [, or] [proof relevant to the believability of the defendant’s testimony] [, or] [whether the defendant] [committed the crime of ] [, or]
[Whether the defendant actually believed in the necessity to use force to defend (herself/himself) against imminent peril to life or great bodily injury and if so, whether that belief was unreasonable.] [In assessing reasonableness, the issue is whether a reasonable person in the defendant’s circumstances would have seen a threat of imminent injury or death, and not whether killing the alleged abuser was reasonable in the sense of being an understandable response to ongoing abuse. An act which appears to be an understandable response is not necessarily an act that is reasonable under the circumstances.].
[Source: CALJIC 9.35.1, 7th ed.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 851 improperly limits consideration of Battered Person Syndrome evidence. (Compare CJ 9.35.1) Such evidence may be used in evaluating the defendant’s credibility. (See People v. Jasper (2002) 98 CA4th 99; see also CJ 9.35.1.)
Failure to allow juror consideration of defense evidence violates the state and federal constitutions. This request is based, inter alia, on the Due Process, Trial By Jury, Confrontation, Compulsory Process and Right to Counsel Clauses of the California Constitution (Art I, §7, 15 and 16) and the federal constitution (5th, 6th and 14th Amendments) as applied to California through the Incorporation Doctrine. (Duncan v. Louisiana (1968) 391 US 145 [20 LEd2d 491; 88 SCt 1444]; see also Tennessee v. Lane (2004) 541 US 509, 562 [158 LEd2d 820; 124 SCt 1978].) “The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice—through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it. [Citation.]” (Faretta v. California (1975) 422 U.S. 806, 818 [45 LEd2d 562; 95 SCt 2525].)
Unless this instructional request is granted the instructions will abridge the defendant’s rights under the above constitutional provisions by:
(1) Denying the defendant a fair opportunity to defend and failing to require the jurors to consider any defense theory which the defendant offers to negate an element of the charge. (See Michelson v. United States (1948) 335 US 469, 476 [69 SCt 213; 93 LEd2d 168] [character evidence denied defendant a “fair opportunity to defend”]; Mathews v. U.S. (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self-defense evidence in determining whether there was a reasonable doubt about the State’s case would violate Winship]; Jackson v. Virginia (1979) 443 US 307, 314 [99 SCt 2781; 61 LEd2d 560]; Chambers v. Mississippi (1973) 410 US 284, 294 [93 SCt1038; 35 LEd2d 297]; Strickland v. Washington (1984) 466 US 668 [104 SCt 2052; 80 LEd2d 674] [ineffective counsel inquiry turns on “the fundamental fairness of the proceeding whose result is being challenged]; Cooper v. Oklahoma (1996) 517 US 348, 369 [116 SCt 1373; 134 LEd2d 498] [“fundamental fairness”]; Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-40; U.S. v. Douglas (7th Cir. 1987) 818 F2d 1317, 1322; U.S. v. Hicks (4th Cir. 1984) 748 F2d 854, 857-58; Strauss v. U.S. (5th Cir. 1967) 376 F2d 416, 419; U.S. ex rel. Means v. Solem (8th Cir. 1980) 646 F2d 322, 327-28; State v. Thomas (NJ 1991) 586 A2d 250, 253 [fundamental fairness demanded DNA testing]; People v. Bobo (1990) 229 CA3d 1417, 1442 [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state].)
(2) Failing to allow the defendant to present evidence on valid defense theories in response to a criminal prosecution. (See Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267]; Crane v. Kentucky (1986) 476 US 683, 690 [106 SCt 2142; 90 LEd2d 636]; Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37]; Chambers v. Mississippi (1973) 410 US 284, 302 [93 SCt 1038; 35 LEd2d 297]; Richmond v. Embry (10th Cir. 1997) 122 F3d 866, 871; Taylor v. Singletary (11th Cir. 1997) 122 F3d 1390, 1394 [right to present defense witness testimony resides in the compulsory due process clause and the due process clause of the federal constitution]; Nichols v. Butler (11th Cir. 1992) (en banc) 953 F2d 1550 [defendant’s right to testify was violated when his attorney actively and forcefully prevented him from testifying, despite defendant’s desire to do so, by threatening to withdraw from representation if defendant persisted in his wish to take the stand].)
(3) Failing to provide the defendant “a meaningful opportunity to present a complete defense.” (California v. Trombetta (1984) 467 US 479, 485 [104 SCt 2528; 81 LEd2d 413]; see also U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F2d 583, 588; cf., Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354].) This guarantee applies to criminal defendants in state court. (See Trombetta, 467 US at 485.) It may be violated when a defendant is prevented from presenting evidence important to his or her defense or otherwise denied an opportunity to defend such as by limitation of cross-examination. (See e.g., id. at 488-89; Gilmore v. Taylor (1993) 508 US 333 [113 SCt 2112; 124 LEd2d 306]; United States v. Vavages (9th Cir. 1998) 151 F3d 1185; Lopez-Alvarez, 970 F2d at 588 [limitation on cross-examination of prosecution witness about hearsay statements that could have cast doubt on his credibility]; In re Hill (1998) 17 C4th 800, 834 [threatening a defense witness with a perjury conviction violates a defendant’s 6th Amendment right to compulsory process]; In re Martin (1987) 44 C3d 1; United States v. Goodwin (5th Cir. 1980) 625 F2d 693, 703.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 851.2 Inst 2 Modification Of Burden Shifting Language
*Modify CC 851, paragraph 3, as follows [added language is underlined; deleted language is stricken]:
You may Consider this evidence only in deciding, if you can, whether the prosecution has proven 1) that the defendant did not actually believed that (he/she) needed to defend (himself/herself) against an immediate threat of great bodily injury or death, and 2) whether that such belief was reasonable or unreasonable.
*Modify paragraph 4, as follows:
When attempting to deciding whether the prosecution has proven that the defendant’s belief was reasonable or unreasonable, consider all the circumstances as they were known by or appeared to the defendant. Also consider what conduct would appear to be necessary to a reasonable person in a similar situation with similar knowledge.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Improper Burden Shifting Language—CC 851 unconstitutionally implies that the jurors must find that the defendant had a reasonable belief in the need to defend for self-defense to apply. (See FORECITE F 100.1 Inst 1.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 851.2 Inst 3 A Previously Battered Person Has The Right To Act More Quickly And Harshly In Self-Defense
*Add to CC 851:
A person who suffers from Battered Woman Syndrome has a greater sensitivity to danger than does the ordinary person. As a result, a person who suffers from Battered Woman Syndrome is justified in acting more quickly and taking harsher measures for her protection in the event of assault either actual or threatened, than would a person who is not subject to Battered Woman Syndrome .
Evidence has been received in this case that the defendant suffers from Battered Woman Syndrome and has a greater sensitivity to danger. If you believe that the defendant has a greater sensitivity to danger and, because of such sensitivity, had reasonable cause to fear greater peril in the event of an altercation with __________ [insert name of deceased or alleged assault victim], you are to consider such sensitivity in determining whether the defendant acted reasonably in protecting her life or bodily safety.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction Generally—See FORECITE F 315.1.2 Inst 2.
Propriety Of Instruction On Quicker And Harsher Measures—In recent years, the scientific literature has revealed the contours of Battered Person Syndrome. Insofar as it is relevant here, the literature indicates that a battered woman has a “greater sensitivity to danger.” (People v. Aris (1989) 215 CA3d 1178, 1194.) Thus, a “woman who has been battered and then is threatened with more abuse is more likely to perceive the danger involved faster that [sic] one who has not been abused.” (Ibid.; see also People v. Humphrey (1996) 13 C4th 1073)
In light of the research on the subject, the legislature has enacted EC 1107 which specifically authorizes the admission of expert testimony on Battered Woman Syndrome . Importantly, EC 1107 does not limit the purpose for which the defendant may use such evidence. Rather, the evidence may be used to show “the physical, emotional, or mental effects upon the beliefs, perceptions, or behaviors of victims of domestic violence …” (EC 1107(a).)
Prior to the enactment of EC 1107, the appellate courts issued two decisions which limited the purposes for which the defendant could use evidence of Battered Woman Syndrome . (People v. Day (1992) 2 CA4th 405; People v. Aris, 215 CA3d 1178.) Presumably, these opinions have been supplanted by EC 1107. Moreover, it is essential to note that the analysis in the opinions was erroneous in any event.
When faced with evidence of Battered Woman Syndrome , California courts have held that it is admissible for two limited purposes: (1) to prove the subjective component of a self-defense theory (i.e., the defendant had an “honest belief” that her life was threatened); and (2) to disabuse the jury of common misconceptions concerning abused women. (People v. Day, 2 CA4th 405, 415-16; People v. Aris, 215 CA3d 1178, 1197; see also State v. Nemeth (Ohio 1998) 694 NE2d 1332 [82 Ohio St. 3rd 202] [expert testimony as to Battered Child Syndrome was admissible in the prosecution of a 16-year-old for aggravated murder of his mother. The battered child syndrome evidence was relevant to self-defense and the behavioral and psychological effects of child abuse].) Importantly, existing case law holds that evidence of Battered Woman Syndrome is not admissible on the question of whether the defendant’s act of self-defense was objectively reasonable. (Day, 2 CA4th at 414-15; Aris, 215 CA3d at 1196.) As will be explained below, the courts have erred in reaching this conclusion.
Under California law, to be exculpated on a theory of self-defense, a defendant must prove two points: (1) a subjectively honest belief in the need for self-defense; and (2) an objective need for self-defense based on a reasonable person standard. (People v. Flannel (1979) 25 C3d 668, 674; People v. Aris (1989) 215 CA3d at 1196.) With respect to prong two, the reasonable person standard is not to be applied in the abstract. Rather, the jury is to consider the question of reasonableness based on the particular facts known to the defendant. (People v. Bush (1978) 84 CA3d 294, 302-04.)
Given these principles of law, the courts have held that evidence of Battered Woman Syndrome is not admissible on the objective prong of self-defense. This is purportedly so because Battered Woman Syndrome relates solely to “the defendant’s subjective state of mind” rather than the objective reasonableness of her actions. (Aris, 215 CA3d at 1196, emphasis in original; accord Day, 2 CA4th at 414-15.) In reaching this conclusion, the courts have misapplied the traditional California law of self-defense.
In this regard, the essential point is that the objective reasonableness of a defendant’s conduct must be measured from the perspective of the facts known to the defendant. For example, when a defendant has previously received threats of violence from an individual, she is entitled to act more quickly and harshly in self-defense than is ordinarily the case. (People v. Moore (1954) 43 C2d 517, 527-29]; People v. Bush, 84 CA3d at 302-04; see FORECITE F 4.005a.)
By parity of reasoning, a battered woman is entitled to introduce evidence concerning her special sensitivity to the danger of serious injury. In this regard, this evidence cannot logically be limited solely to the defendant’s subjective mental state. This is so because any reasonable person in the battered woman’s position would act more quickly and harshly in self-defense when armed with the special knowledge that a violent attack is forthcoming.
Although the analogy is not exact, it is interesting to note that 4th Amendment jurisprudence supports the foregoing analysis. In this regard, the courts have always required the police to adhere to a standard of objective reasonableness. However, in applying an objective standard, the courts have deferred to the training and experience of the police which allows them to find probable cause which would otherwise be unapparent to the ordinary person. (People v. Superior Court (Kiefer) (1970) 3 C3d 807, 827.) Given this deference to the objective experience of police officers, no reason appears why a battered woman should not enjoy the same deference under the law.
[See FORECITE F 9.35.1 n3 and F 9.35.1 n5.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
ALERT: Justice Brown’s Concurrence In Humphrey Is Part Of The Holding. See FORECITE F 851 Note 2.
RESEARCH NOTES: See FORECITE BIBLIO 9.35.1; Battered Child Defendants in California: The Admissibility of Evidence Regarding the Effects of Abuse on a Child’s Honest and Reasonable Belief of Imminent Danger, Carin C. Azarcon, Pacific Law Journal, Vol. 26, No. 3, April 1995, p. 831.
CALJIC NOTE: See FORECITE F 9.35.1a.
F 851.2 Inst 4 Impact Of Prior Assault And Battery On Defendant Applicable To Any Person
*Add to CC 851:
A person who has previously been the victim of assault and suffered injuries therefrom may have a greater sensitivity to danger than does the ordinary person. As a result, a person who has previously been the victim of assault and suffered injuries therefrom may be justified in acting more quickly and taking harsher measures for [his] [her] protection in the event of assault either actual or threatened, than would a person who has not been so injured or assaulted.
The defendant contends (he/she) was previously assaulted and therefore had a greater sensitivity to danger. Consider any evidence of such sensitivity in determining whether the prosecution has proven beyond a reasonable doubt that the defendant did not act reasonably in protecting his life or bodily safety.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—The impact of a prior assault and battery on self-defense should not be limited to battered women (see FORECITE F 851.2 Inst 3) but should apply to all persons. .”.. [A] defendant is entitled to have a jury take into consideration all elements in the case which might be expected to operate on his mind.” [Internal citations and quotation marks omitted.] (People v. Humphrey (1996) 13 C4th 1073, 1083; see also FORECITE F 851 Note 2; F 820.5 Inst 3.)
Prosecution Has Burden To Disprove Self-Defense—See FORECITE F 315.1.2 Inst 2.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 9.35.1b.
F 851.2 Inst 5 Deletion Of Limiting Language Informing Jurors That Expert Testimony Is Not Evidence Of Defendant’s Guilt
*Modify CC 851 as follows:
[Delete Paragraph 2]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Defendant’s Right To Waive Beneficial Limiting Instruction – Paragraph 2 of CC 851 is obviously intended to benefit the defendant by limiting the jurors’ use of defense expert testimony to find the defendant guilty. Accordingly, the defense should have the option of omitting this beneficial language for tactical reasons. (See FORECITE F 376 Inst 14.) “A reasonable attorney may … tactically conclude[] that the risk of a limiting instruction … outweigh[s] the questionable benefits such instruction would provide.” (People v. Maury (2003) 30 C4th 342, 394; see also People v. Hernandez (2004) 33 C4th 1040, 1053 [“defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used”]; In re Seaton (2004) 34 C4th 193, 200, n. 3 [trial counsel’s tactical decisions are accorded great deference]; People v. Hawkins (1995) 10 C4th 920, 942.)
Tactically speaking, paragraph 2 of CC 851 provides a choice which defense counsel should be permitted to make. If counsel fears that the jurors may misuse defense expert evidence then the CC language may be acceptable to the defense. (See Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 5:2, Defense Perspective, p. 269.) On the other hand, counsel may deem it tactically wiser to avoid any reference to defense evidence being used to prove guilt. (Ibid.) If that is the case then, under the above-cited authority, the judge should not give Paragraph 2 over defense objection.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 2.4 [Instructions Which Improperly Shift Burden Of Proof]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 851 NOTES
F 851 Note 1Testimony on Intimate Partner Battering and Its Effects: Offered by the Defense —CALCRIM Cross-References And Research Notes
CALCRIM Cross References:
CALCRIM 850 [Testimony On Intimate Partner Battering And Its Effects: Credibility Of Complaining Witness (EC1107(a))]
CALCRIM 852 [Evidence Of Uncharged Domestic Violence (EC 1109(a)(1))]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 851 Note 2 Battered Woman/Child Syndrome: Jury Must Consider Objective Standard In Light Of Defendant’s Past Experience (EC 1107)
ALERT: Justice Brown’s Concurrence In Humphrey Is Part Of The Holding. In People v. Humphrey (1996) 13 C4th 1073, the leading California authority on battered women and self-defense, the Supreme Court justices issued a total of four opinions. Experience has shown that only the lead opinion written by Justice Chin and joined by four other members of the court receives much attention. This is a mistake. Justice Brown’s concurrence was joined in full by Chief Justice George and Justice Baxter, and was joined almost in full by Justice Werdegar. (See Justice Werdegar’s concurrence, pp. 1091-92.) Thus, her concurrence is part of the holding in the case, with the exception outlined in Justice Werdegar’s concurrence.
Justice Brown’s decision contains factual and legal analyses, and citations to authorities on domestic violence and self-defense, which cannot be found in the lead opinion. Hence, Justice Brown’s opinion should not be overlooked by attorneys who wish to rely on Humphrey.
Even though self-defense, heat of passion and duress impose an objective standard of reasonableness, that standard must be evaluated in light of the experiences of the individual defendant. (See e.g., People v. Humphrey (1996) 13 C4th 1073, 1086.) “[T]he jury, in determining objective reasonableness, must view the situation from the defendant’s perspective. [Original emphasis.] Here, for example, Dr. Bowker testified that the violence can escalate and that a battered woman can become increasingly sensitive to the abuser’s behavior, testimony relevant to determining whether defendant reasonably believed when she fired the gun that this time the threat to her life was imminent. Indeed, the prosecutor argued that, ‘from an objective, reasonable man’s standard, there was no reason for her to go get that gun. This threat that she says he made was like so many threats before. There was no reason for her to react that way.’ Dr. Bowker’s testimony supplied a response that the jury might not otherwise receive. As violence increases over time and threats gain credibility, a battered person might become sensitized and thus able reasonably to discern when danger is real and when it is not. ‘[T]he expert’s testimony might also enable the jury to find that the battered [woman] … is particularly able to predict accurately the likely extent of violence in any attack on her. That conclusion could significantly affect the jury’s evaluation of the reasonableness of defendant’s fear for her life.’ [Citation.]” (Humphrey, 13 C4th at 1086.)
Hence, Battered Woman Syndrome evidence should be considered by the jury to determine “whether the defendant had reasonable grounds for an honest belief that she was in imminent danger when considering the issue of self-defense.” (State v. Koss (1990) 551 NE2nd 970, 973-74; see also People v. Humphrey (1996) 13 C4th 1073, 1086; State v. Kelly (N.J. Supreme Ct. 1984) 478 A2d 364, 375-78; State v. Leidholm (N.D. 1983) 334 NW3d 811; State v. Hennum (Minn. 1989) 441 NW2d 793.)
Moreover, the California Supreme Court has generally recognized the relevance of “subjective state of mind evidence” to proof of an objective standard. In People v. Ochoa (1993) 6 C4th 1199, the court first noted that the offense of gross vehicular manslaughter while intoxicated requires proof under an “‘objective'” standard: “‘whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citations].'” (Id. at 1204.) However, in satisfying this objective test, the prosecutor is entitled to introduce evidence of the defendant’s “subjective state of mind …” (Id. at 1205.) This rule is justified on the theory that subjective knowledge is relevant to the objective question of “whether a reasonable person in defendant’s position would have been aware of the risks …” (Ibid., emphasis in original; see also FORECITE F 5.12a; see also Commonwealth v. Stonehouse (1989) 555 A2d 772 [521 Pa. 41] [trial counsel ineffective in failing to request jury instruction in homicide trial which would require jury to consider cumulative effects of psychological and physical abuse when assessing reasonableness of battered person’s fear of imminent danger of death or serious bodily injury with respect to claim of self-defense]; see also Depetris v. Kuykendall (9th Cir. 2001) 239 F3d 1057 [reversible error found due to exclusion of: (1) husband’s diary depicting his acts of violence against women; and (2) the wife’s testimony that her reading of the diary caused her to believe that she was in imminent danger when she killed her husband].) [See Brief Bank # B-608. for additional briefing and citation to other out-of-state cases. See Brief Bank # B-656 for the appellant’s briefing in the Supreme Court in Humphrey.
Instruction Package Available: [See Instruction Bank # I-858 for a package of instructions drafted by FORECITE subscriber Christie Warren relating the victim’s character and prior violent acts to self-defense.]
[Research Note: See FORECITE BIBLIO 9.35.1.]
CALJIC NOTE: See FORECITE F 9.35.1 n3.
F 851 Note 3 Battered Women’s Syndrome (BWS): Admissibility Of Expert Opinion Concerning Defendant’s Actual State Of Mind At The Time Of The Crime
In People v. Erickson (1997) 57 CA4th 1391, the trial court relied on PC 29 in precluding the defendant’s BWS experts from giving an opinion about her mental state at the time of the killing. In a supplemental brief, the defendant argued this was error because PC 29 only applies to expert testimony about a mental illness, disorder or defect, whereas BWS is none of these things. (Id. at 1400-1402.) The defendant’s position was strongly supported by a 1996 report from the U.S. Department of Justice and Health and Human Services (“The Validity and Use of Evidence Concerning Battering and its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act” (May, 1996)), and also by the Supreme Court’s holding in People v. Humphrey (1996) 13 C4th 1073, 1083-84 fn 3. The Court of Appeal rejected the defendant’s argument, however, because the BWS experts who testified in that case considered BWS a mental defect. The appellate court said the trial court was entitled to rely upon the expert testimony in that case. (People v. Erickson (1997) 57 CA4th 1391.) Hence, Erickson’s holding is limited in several respects.
First, Erickson would not apply to a case in which the BWS expert(s) testified—as most current BWS experts would—that BWS per se is not a mental illness, disorder or defect.
Second, Erickson was at best an imperfect self-defense case, as the abuser was shot while asleep. (Erickson, supra, at 12365.) Most battered women who kill their abusers do so under confrontational circumstances however, and if a woman who has killed under such circumstances raises a claim of perfect self-defense (like Humphrey did), it is vital to get BWS experts whose testimony will focus on battered women’s greater acuity in detecting danger, rather than on the discredited, sexist notion that all battered women are mentally defective. (As to battered women’s acuity in detecting danger, see Humphrey, supra, at 1086 and 1096-97, and authorities cited therein.)
Third, language in Erickson suggests EC 1107 only allows BWS experts to testify about battered women as a group. (Erickson, supra, at 12367 §C.) This language could be construed by some trial courts as saying BWS experts may not testify about whether the defendant in fact is a battered woman, or about how battering affected her personally. Such is clearly not the law, and a trial court which so rules will be committing clear (and probably reversible) error. (Humphrey, supra, at 1086; see also People v. Aris (1989) 215 CA3d 1190, 1197-98.)
CALJIC NOTE: See FORECITE F 9.35.1 n5.
F 851 Note 4 Use Of Battered Person’s Syndrome By Prosecution
The prosecution may offer expert evidence on Battered Woman Syndrome under EC 1107 to explain why a battery victim recanted his or her story on the witness stand. (See People v. Brown (2004) 33 C4th 892 [adequate foundation under EC 801 for the expert testimony that domestic violence victims often later deny or minimize the assailant’s conduct because evidence]; People v. Morgan (1997) 58 CA4th 1210; see also People v. Gadlin (2000) 78 CA4th 587, 594-95 [Battered Women’s Syndrome evidence admissible even though victim did not recant incidents of abuse at time of trial]; People v. Williams (2000) 78 CA4th 1118 [Battered Woman Syndrome evidence is relevant when there is no evidence of prior abuse].)
CALJIC NOTE: See FORECITE F 9.35.1 n6.
F 851 Note 5 Battered Women Syndrome: Writ Of Habeas Corpus
Senate Bill 799 added PC 1473.5 allowing a writ of habeas corpus to be prosecuted on the grounds that evidence relating to Battered Women’s Syndrome (within the meaning of EC 1107) was not introduced at the trial, and the omission affected the outcome of the case. Adds grounds for denial of a petition. (Stats. 2001, Ch. 858.)
CALJIC NOTE: See FORECITE F 9.35.1 n9.
F 851 Note 6 Applicability Of Battered Person Syndrome To Imperfect Self-Defense
The 4th paragraph of CJ 9.35.1 improperly applies only to complete self-defense. When imperfect self-defense is at issue that paragraph should be modified. See Brief Bank # B-953 for briefing on this issue.
CALJIC NOTE: See FORECITE F 9.35.1 n10.
F 851 Note 7 Battered Person Syndrome: Failure To Request Pinpoint Instruction As Ineffective Assistance Of Counsel
See Brief Bank B-954 for briefing on this issue.
CALJIC NOTE: See FORECITE F 9.35.1 n11.
F 851 Note 8 Battered Person Syndrome: Required Foundation
See People v. Brown (2004) 33 C4th 892, 908 [no requirement of a preliminary finding that the charged act of abuse occurred before the jury may consider Battered Person evidence under EC 1107; but there must be “independent evidence” of the charged act].
CALJIC NOTE: See FORECITE F 9.35.1 n12.
F 851 Note 9 Charged Offense May Not Be Used To Show Propensity Under EC 1107
See FORECITE F 1191 Note 19.
F 851 Note 10 Battered Person Expert To Negate Malice Or Support Self-Defense Theory
From a legal perspective, evidence of intimate partner battering and its psychological effects can reduce an intentional killing from murder to voluntary manslaughter by negating the element of malice. (People v. Humphrey (1996) 13 Cal.4th 1073, 1086 [expert testimony on effects of intimate battering is relevant to support imperfect self-defense – that defendant genuinely but unreasonably believed she was in imminent danger of serious bodily injury].) Such expert testimony can also support a defendant’s theory of justifiable homicide or true self-defense by enabling the jury to find the battered woman or man ” ‘is particularly able to predict accurately the likely extent of violence in any attack,’ “information that could” ‘significantly affect the jury’s evaluation of the reasonableness of defendant’s fear for her [or his] life. [Citation.]’ ” (Ibid.; see also In re Walker (2007) 147 CA4th 533, 546; Judicial Council of California Criminal Jury Instructions (2006) CALCRIM 851.)
