Brief Bank # B-953 (Re: 9.35.1 n10 [Applicability Of Battered Person Syndrome To Imperfect Self-Defense].)
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Date of Brief: September, 2002.
ARGUMENT
I.THE TRIAL COURT ERRONEOUSLY LIMITED THE JURY’S CONSIDERATION OF THE BATTERED WOMAN’S SYNDROME EVIDENCE SO THAT IT DID NOT APPLY TO THE UNREASONABLE SELF-DEFENSE FORM OF MANSLAUGHTER WHICH DENIED APPELLANT HER STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW
The trial court instructed the jury regarding the limitations of the use of the Battered Woman’s Syndrome evidence upon which appellant’s defense was based by giving CALJIC 9.35.1. (CT 543.) That instruction erroneously limits the use of the evidence to perfect self-defense and by the language in the fourth bracketed section excludes imperfect self-defense in spite of the fact that the Use Note expressly states that the “fourth bracketed purpose deals with perfect and imperfect self defense.” (California Jury Instructions, Sixth Addition, p. 620; emphasis added.)
“Evidence Code section 1107, subdivision (a), makes admissible in a criminal action expert testimony regarding ‘battered women’s syndrome, including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence ….'” (People v. Humphrey (1996) 13 Cal.4th 1073, 1081-1082, (Humphrey).) In Humphrey, our Supreme Court discussed the elements of perfect and imperfect self-defense recognizing the well settled differences between the two defenses.
For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. (People v. Flannel (1979) 25 Cal.3d 668, 674 [160 Cal.Rptr. 84, 603 P.2d 1].) If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter. (In re Christian S. (1994) 7 Cal.4th 768, 783 [30 Cal.Rptr.2d 33, 872 P.2d 574].)
(Id., at p. 1082.)
Humphrey held that expert testimony regarding Battered Woman’s Syndrome is admissible on both the subjective and objective elements of self-defense. (Id., at p. 1087.)
CALJIC 9.35.1 as given in appellant’s case provides as follows:
Evidence has been presented to you concerning battered women’s syndrome. You should consider this evidence for certain limited purposes only, namely,
[that the defendant’s reactions, as demonstrated by the evidence, are not inconsistent with [her] having been physically abused]
[the beliefs, perception or behavior of victims of domestic violence]
[proof relevant to the believability of the defendant’s testimony]
[whether the defendant [actually] [and] [reasonably] believed in the necessity to use force to defend herself against imminent peril to life or great bodily injury. [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 that appeared to be an understandable response is not necessarily an act that was reasonable under the circumstances.].
Apparently due to an oversight by the Committee on Standard Jury Instructions in formulating CALJIC 9.35.1, the fourth bracketed purpose instructs the jury that the expert testimony they heard regarding BWS can only be considered as to perfect and not imperfect self-defense. That is legally incorrect and inconsistent with the Committee’s own Use Note regarding the fourth bracketed purpose.
It is well settled law that the trial court has a sua sponte duty to “instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ (People v. St. Martin (1970) 1 Cal.3d 524, 531).” (People v. Sedeno (1974) 10 Cal.3d 703, 715; emphasis added.)
It is black letter law that the trial court has a very broad duty to instruct sua sponte on lesser included offenses and a somewhat narrower duty to instruct on particular defenses. (People v. Barton (1995) 12 Cal.4th 186, 199.) It follows that the court’s duty to instruct on lesser included offenses, in this case the imperfect self-defense form of manslaughter and the BWS evidence which supported it, includes the duty to correctly instruct on those matters.
“[O]ne can legitimately argue that the primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues the jury must resolve.” (People v. Thompkins (1987) 195 Cal.App.3d 244, 251.) That primary function was not fulfilled in this case.
The court’s breach of its duty to clearly and correctly instruct the jury on the crux of appellant’s defense deprived her of her right to a fair trial and to have the jury determine each element of the murder charge (Fourteenth Amendment, United States Constitution & Article I, ‘ 15, California Constitution) and to trial by jury (Sixth Amendment, United States Constitution).
It is beyond argument that manslaughter is a lesser included offense to a charge of murder. (See People v. Barton, supra, 12 cal.4th at p. 199.) In Barton, the trial court instructed, over the defendant’s objection, on what is commonly referred to as “imperfect or unreasonable self-defense.” Our Supreme Court held in Barton that courts are required to instruct on imperfect self-defense, if supported by the evidence, even over the objection of the defense.
The sole difference between true self-defense and `unreasonable self-defense’ is that the former applies only when the defendant acts in response to circumstances that cause the defendant to fear, and would lead a reasonable person to fear, the infliction of death or great bodily injury (§§197, 198); unreasonable self-defense, on the other hand, does not require the defendant’s fear to be reasonable. (In re Christian S.., supra, 7 Cal.4th at p. 773.)
(People v. Barton, supra, 12 Cal.4th at pp. 200-201; emphasis added.)
Accordingly, when a defendant is charged with murder the trial court’s duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense: this duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.
(Id., at p. 201.)
There can be no serious argument that, based on the facts of appellant’s case, the trial court had a sua sponte duty to instruct on the imperfect self-defense form of manslaughter and that failure to have done so would be reversible error.
It follows that the court was also required to correctly instruct on the legal parameters of BWS evidence and its applicability to the imperfect self-defense form of manslaughter. By giving CALJIC 9.35.1 which limits application of BWS evidence to perfect self-defense, the court significantly lessened the prosecution’s burden of proof. The due process clause of the Fourteenth Amendment of the United States Constitution requires the prosecution to prove beyond a reasonable doubt every element of the offense charged. (In re Winship (1970) 397 U.S. 358, 364.)
In appellant’s case, the court had a sua sponte duty to instruct on unreasonable self-defense and to correctly instruct on that form of voluntary manslaughter as well as on the defense evidence directly related to imperfect self-defense. Instead the court erroneously gave an instruction which limited the application of BWS to perfect self-defense. To correctly instruct the jury, the trial court was required to modify CALJIC 9.35.1 so that the fourth bracketed purpose would read:
[whether the defendant actually and reasonably, as required for perfect or complete self defense, believed in the necessity to use force to defend herself against imminent peril to life or great bodily injury AND whether the defendant actually but unreasonably, as required for imperfect self defense, believed in the necessity to use force to defend herself against imminent peril to life or great bodily injury.
That straight forward, simple to understand modification would have correctly instructed appellant’s jury as to the law on the use of the BWS evidence and would have preserved her right to a fair trial. The trial court’s failure to have done that resulted in the opposite.
Prejudice
Appellant presented both lay and expert testimony regarding the abuse she suffered at the hands of Mr. H. Indeed, some of the prosection’s own witnesses described her frequent injuries. Her defense rested on the psychological effects of BWS as an explanation of why she loaded the rifle and fired a single shot, and the trial court’s error in limiting that evidence to perfect self-defense infringed on appellant’s right to a fundamentally fair jury trial.
The court’s failure to correctly instruct on appellant’s primary defense is of federal constitutional dimension. The court’s misinstruction limited the BWS evidence to self-defense and eliminated its application to imperfect self-defense and thereby effectively removed the manslaughter option from the jury and thus violated appellant’s federal right to trial by jury and due process of law. (People v. Lee (1987) 43 Cal.3d 666.) Therefore, the burden is on the state to show that the error was harmless beyond a reasonable doubt. (California v. Chapman (1967) 386 U.S. 18; Rose v. Clark (1986) 478 U.S. 570.)
