Brief Bank # B-608
NOTE: The text of the footnotes appear at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, Appeal #F000000
Fresno County Superior Court
JANE DOE, No. 000000-0
Defendant and Appellant.
APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO
Honorable A. Dennis Caeton, Presiding
APPELLANT’S OPENING BRIEF
State Bar #122029
P.O. Box 1324
Davis, CA 95617-1324
Telephone: (916) 758-5776
Attorney for Appellant by Appointment of the Court of
Appeal under the Central California Appellate Program’s Independent Case System
THE COURT PREJUDICIALLY ERRED BY INSTRUCTING THE JURY THAT EVIDENCE OF BWS COULD NOT BE CONSIDERED IN DETERMINING WHETHER IT WAS OBJECTIVELY REASONABLE FOR MS. DOE TO FEAR IMMINENT DEATH OR GREAT BODILY INJURY.
In this argument, appellant will explain that the trial court prejudicially erred by instructing the jury that in a homicide case, BWS evidence cannot be considered in determining whether the defendant’s fear of imminent death or great bodily injury was objectively reasonable. In Section B, appellant will discuss the relevant facts and procedural history. In Section C, appellant will discuss the relevant law and apply it to the present case, thus demonstrating that the court’s instruction was erroneous. In Section D, appellant will show that the error was prejudicial.
B. Relevant facts and Procedural history
1. Preliminary procedural history
At the beginning of Ms. Doe’s trial, outside the jury’s presence, defense counsel told the court that BWS evidence may be used to establish perfect self-defense in a murder case-i.e., to show both that the defendant had a subjective fear of death or great bodily injury from the decedent and that said fear was objectively reasonable. (RT 29-31, 38-41.) The prosecutor disagreed and told the court that while BWS evidence may be used to establish the defendant’s subjective fear of death or great bodily injury, it may not be used to prove said fear was objectively reasonable. (RT 29-31, 38-41.) The court agreed with the prosecutor, citing the holdings in People v. Aris (1989) 215 Cal.App.3d 1178 and People v. Day (1992) 2 Cal.App.4th 405. (RT 41-59.)
The trial proceeded. The prosecutor presented evidence which proved that Ms. Doe shot and killed Mr. H (see pp. 4-6, ante), then he rested his case. (RT 266.) The defense thereupon called as its first witness Dr. Lee Bowker, a recognized authority on BWS. (See People v. Day, supra, 2 Cal.App. 4th at 412; see also RT 267-269.)
2. Dr. Bowker’s testimony as to BWS in general
After reciting his credentials, Dr. Bowker testified that he was once funded by the University of Wisconsin to do a study of 1,000 battered women. (RT 270, 272.) He undertook the study because he felt battered women were inaccurately portrayed, in the then-existing literature, as human punching bags who merely absorb physical abuse without doing anything to stop it. (RT 272-273.) His study confirmed that this was an inaccurate stereotype; indeed, not a single one of the 1,000 women Bowker studied had given up hope and resigned herself to being a human punching bag. (RT 273-275.) Instead, each of the women employed one or more strategies in an effort to stop the beatings, including hiding, running away, counter violence, seeking the help of friends and family, going to a battered women’s shelter, contacting the police and/or an attorney, going to doctors, going to counselors, etc. (RT 274-275.)
Bowker’s study also revealed much about the men who batter women. In the 1,000 cases he studied, Bowker found not a single instance in which a batterer quit battering simply because he was asked to do so; at best, Bowker found, batterers will temporarily cease their behavior, but will later lapse back into it unless something like a court order or a women’s shelter prevents them from doing so. (RT 275-276.) Bowker further learned that the violence in a battering relationship tends to escalate with time, as the batterer discovers increasingly severe measures are needed to retain absolute control over his mate; these measures include such extreme abuses as rape, torture, violence against the woman’s loved ones or pets, death threats against the woman and/or others, etc. (RT 278-281.) Bowker also found that batterers do many nonviolent things to reinforce their domination of their mates; these things include reducing or wholly eliminating the woman’s social contacts, taking away her money and credit cards, and, worst of all, destroying the woman’s self-esteem through constant criticism and insults. (RT 278-281.) Bowker found that most batterers behave fairly well in public and are careful to cover their tracks, doing their battering in a private setting and in such a manner as to leave few visible injuries; as a result, it is usually the battered woman whom neighbors will hear crying and screaming. (RT 350-351, 388-389.)
As for battered women in general, Bowker found that women with a background of childhood abuse are far more likely than other women to fall into battering relationships, both because their childhood traumas make them unable to see batterers in an accurate light and because they tend to give off signs of vulnerability which attract batterers. (RT 282-284.) Sadly, many such women tend not only to go from one abusive relationship to another, but also to seek a strong and dominating man to provide “relief” from their previous abuser. (RT 284-286.) When this happens, the woman winds up suffering even greater abuse, and even more total domination,, than she did at the hands of her previous abuser. (RT 284-286.)
As to the question of why women stay in battering relationships, Bowker recited a number of factors: lack of money, social isolation, lack of self-confidence, previous failure of the police to provide relief when asked to do so, and fear of violent reprisals by the batterer against the woman and/or her loved ones. (RT 287-289.) Bowker stressed that the fear of violent reprisals is frequently well-founded, and further stressed that a battered woman is often brainwashed and lacking in self-confidence to an extent reminiscent of the American soldiers who were imprisoned in the Korean War. (RT 287-289.) As a result, a battered woman often comes to feel that she is responsible for the abusive relationship, and that everything will be all right if she can only perform to her abuser’s satisfaction. (RT 288-289.) This last illusion, unfortunately, may persist for many years. (RT 289.)
3. Bowker’s testimony as to Ms. Doe in particular
Bowker testified he spent one full day talking to Ms. Doe, at the conclusion of which time he determined she was suffering not only from BWS, but also from being the child of an alcoholic and from Incest Survivor Syndrome (“ISS”). (RT 291.) He said Ms. Doe’s ability to cope with life had been seriously damaged as a result of these experiences. (RT 292.)
Bowker then set forth the nauseating details of the abuse Ms. Doe had suffered. From age 7 to age 14, he said, she was regularly subjected to oral and genital sexual abuse by her father. (RT 293-294.) When she told her mother what was happening, her mother slapped her in the face and called her a liar. (RT 294-295.) Her father gave her drugs to subdue her. (RT 315-316.) He also battered, choked and raped her mother in front of her, thus giving her an extremely warped perspective on how marriages are supposed to work. (RT 314-315.) As a result of these childhood traumas, Ms. Doe developed sexual difficulties, a penchant for abusing alcohol and other drugs, and very poor judgment as to what sort of men make appropriate partners. (RT 316.)
As to Ms. Doe’s adolescent and adult relationships with men, Bowker explained that Ms. Doe had three primary partners–all of whom were abusive and significantly older than she was–prior to Mr. H. (RT 317-318.) The first such relationship was with a 240-pound man named Mr. R, whom Ms. Doe married at age 15; during the course of the marriage, Mr. R beat, kicked, berated, raped and forcibly sodomized Ms. Doe, and he also threw knives at her; the marriage ended when Mr. R was arrested on a parole violation. (RT 319-323.) The second such relationship was with a man named Mr. C, who “only” punched Ms. Doe once during their brief relationship, but who also kicked a door down to get at her and put her head through a window; this relationship ended because Ms. Doe felt Mr. C was not controlling enough and did not provide her with an adequate sense of protection. (RT 323-324.) The third such relationship was with a man named Mr. S, an intravenous drug user who beat Ms. Doe when he was “strung out” and had her trade sex for money; on one occasion, he threw her down a flight of stairs; on four other occasions, she was raped by strangers while working the streets for drug money. (RT 325-326.)
Finally, Bowker said,, Ms. Doe met Mr. H, a massive 49 year-old man with whom she had a classic battering relationship characterized by “an absolutely traditional cycle of violence.” (RT 328-329.) The cycle, played out repeatedly during their relationship, included: (1) a tension building phase; (2) a violence phase; (3) a forgiveness seeking phase, with Mr. H vowing to change and Ms. Doe believing him; and (4) a return to the tension building phase. [Footnote 1] (RT 328-329.)
The cycle of violence between Mr. H and Ms. Doe, Bowker noted, would be triggered by trivial matters, such as Ms. Doe’s having talked to another man or having failed to clean the house adequately. (RT 330-331.) It also became worse as time went on, especially when Mr. H got off parole shortly before his death. (RT 332-333.) He then became even more physically and emotionally abusive than he had been before, making repeated threats against Ms. Doe’s life and even going so far as to shoot at her on the night before his death. (RT 334-335, 338-339.) Battered women, Bowker observed, watch very carefully for this sort of escalation in violence, and are particularly sensitive to the danger it reflects. (RT 338-339.)
Bowker acknowledged that Ms. Doe was often “mouthy” and defiant with Mr. H, and that she occasionally struck back at him, but he reiterated that battered women frequently behave in such a manner. (RT 340.) Bowker further explained that while Mr. H often allowed Ms. Doe to go out to bars, she was afraid to flee because she felt he would find her–as he had done in the past. (RT 341-342.) As for why Ms. Doe did not seek medical treatment for her injuries, Bowker said this was consistent with her childhood experiences and was not surprising. (RT 373-374.)
Having thus given testimony establishing that Ms. Doe showed virtually every known symptom of BWS, Bowker averred he was certain Ms. Doe was telling the truth about her experiences. (RT 297-299, 310-314.) He further said that Ms. Doe was not only suffering from BWS, but also had a life story which was “remarkable for the development of the symptoms she suffered throughout her life that flow from the incest experience at age seven and later and in that respect her case is certainly classic.” (RT 382.) The severity of BWS in Ms. Doe, he said, was “about as extreme a pattern as you could find.” (RT 392.)
4. Ms. Doe’s testimony
Ms. Doe confirmed that what she had told Bowker about her childhood and her early adult relationships was true. (RT 452-453.) As to her childhood, she further averred that her father gave her alcohol and cocaine from about the age of 7 on, that he forced her to perform fellatio and engage in other sexual acts, and that she finally ran away from home at age 14. (RT 403-404, 454-456.) As to her relationship with Mr. R, she averred that he was all right for about the first year, after which time he became involved with alcohol and other drugs; he thereupon began treating her like a punching bag. (RT 457-458.)
Ms. Doe likewise confirmed what Bowker had said about her relationship with Mr. H. She said Mr. H would do all of the following things: forbid her to talk to other men (RT 397); beat her up when his chronically bad back bothered him (RT 398); maintain total control of her finances (RT 399); argue with her constantly about money and whether they could afford beer (RT 399, 465); scream at her and beat her if the house was not kept suitably clean (RT 400-401, 464); beat her if she did not cook dinner to his satisfaction (RT 464); and beat her because he suspected she was secretly involved with other men (RT 402). She would often run to the bedroom in an attempt to escape his wrath, but he would thereupon kick the door open and scream at her, after which things would escalate. (RT 402-403.)
Ms. Doe also confirmed what Dr. Bowker had said about the escalation in Mr. H’s violence during the final weeks of his life, i.e., after he got off parole. From that point on, Ms. Doe said, Mr. H frequently got drunk and beat her up for trivial reasons. (RT 408-409, 474-475.) On the night before his death, he went so far as to fire a gunshot at her during a heated argument. (RT 408-415; see p. 7, ante.) On the date of his death, he likewise remarked that the Sequoia Mountains would be a good place for him to kill her, since her body would not be discovered for quite some time. (RT 424-425.)
5. Corroborating testimony
Two of Ms. Doe’s family members gave testimony corroborating what Dr. Bowker and Ms. Doe had said about Ms. Doe’s experiences before meeting Mr. H. Tammy C., Ms. Doe’s younger sister, said she was aware that Ms. Doe was beaten by a number of men before her involvement with Mr. H. (RT 818.) Alice Doe, Ms. Doe’s mother, likewise testified that she saw bruises on Ms. Doe a number of times before Ms. Doe met Mr. H. (RT 753.)
As for Ms. Doe’s relationship with Mr. H, the defense produced a vast array of witnesses whose testimony, when taken cumulatively, removed any doubt about what kind of mate Mr. H was. Six witnesses–parole agent La ‘Tana Eddings, Fresno Police Officer John Romo, neighbor Ms. F, neighbor Ms. G, ex-housekeeper Ms. S and ex-girlfriend Sarah S.–gave testimony establishing beyond dispute the fact Mr. H was a chronic drunkard. (RT 634-635, 641-644, 646-648, 657, 658-660, 703-706, 787.) Smith further testified that Mr. H was very fussy about how his house was cleaned, that he angered easily, that he was extremely jealous, that he constantly told Ms. Doe what to do, and that he had previously tried to throw a woman named Sandra Jean through a window. (RT 708-709, 720-722.) Sweat further testified that when she lived with Mr. H, he once broke her finger and hit her in the mouth so hard that he broke her bridge; when she subsequently left him and went back to her husband, Mr. H called her on the phone, screamed obscenities at her and threatened her, but backed down quickly when her husband intervened. (RT 777-779, 783.)
There was more … much more. Mr. D testified that he once saw Mr. H knock Ms. Doe down and drag her around by the hair, that he saw Mr. H hit Ms. Doe on at least four other occasions, that he saw bruises on Ms. Doe’s face on still other occasions, and that he had previously heard Mr. H threaten the lives of Ms. Doe and others. (RT 792795.) Ms. G testified that she personally was threatened by Mr. H two days before his death, that she had previously heard Mr. H argue with Ms. Doe, and that she had also seen Ms. Doe bleeding from the lips. (RT 856-859.) Mr. J testified that he had seen Mr. H hit Ms. Doe on several occasions and that he had also seen bruises on Ms. Doe’s arm, but that when he told her to leave Mr. H, she replied that she loved Mr. H and that he was the best thing to happen to her. (RT 867-869, 871.) Ms. O testified that she once lived with Mr. H for three years, during which time he struck her on three different occasions. (RT 888-891.) Ms. R averred that during the time Mr. H and Ms. Doe were together, she saw Mr. H pull Ms. Doe’s hair and saw several injuries on Ms. Doe, including a bloody lip, a black eye and a cut arm. (RT 935-939.) Ms. M testified that she had seen Ms. Doe with her arm bruised, her body black and blue, and her ability to walk severely impaired; Ms. M further testified that Mr. H once came to her house at 3 a.m. looking for Ms. Doe, at which time he said he was going to kill Ms. Doe once he got off parole. (RT 825-831.) Ms. M’s ex-boyfriend, Ms. B, testified that he was present when this occurred and that he also heard the threat in question. (RT 846-849.)
Three of Ms. Doe’s relatives also testified about Ms. Doe’s relationship with Mr. H. Tammy C., Ms. Doe’s youngest sister, said she had previously seen Ms. Doe with what looked like a broken nose and with bruises on her neck, side and legs. (RT 810-811.) Ms. J, Ms. Doe’s stepsister, likewise averred that she had seen Mr. H grab Ms. Doe by the throat and hit her on the back of the head, and that she had seen bruises on Ms. Doe’s face and back many times, including several of the occasions on which Ms. Doe came to her house following an argument with Mr. H. (RT 761-765.) Alice Doe, appellant’s mother, said she had witnessed various injuries on Ms. Doe eight different times at Ms. Doe’s house, and that she had also heard Mr. H threaten to hit, slap and kill Ms. Doe–the lattermost threat occurring only 1-1/2 weeks before the shooting. (RT 738, 742-743.)
6. Post-evidentiary procedural history
In his argument to the jury, the prosecutor admitted there was no doubt Mr. H had hit Ms. Doe on a number of occasions. (RT 11/9/93, p. 45.) He twice emphasized, however, that Ms. Doe’s BWS evidence could be used only to show that she had a subjective fear of death or great bodily injury when she shot Mr. H, and not to show that her fear was objectively reasonable. (RT 11/9/93, pp. 20-23 and 88.)
The court thereafter gave jury instructions which were consistent with the prosecutor’s argument. The court instructed the jurors as to perfect self-defense and imperfect self-defense (RT 11/9/92, pp. 102-103), then told them as follows:
Evidence regarding [BWS] has been introduced in this case. Such evidence, if believed, may be considered by you only for the purpose of determining whether or, not the defendant held the necessary subjective honest [belief] which is a requirement for both perfect and imperfect self-defense. However, that same evidence regarding [BWS] may not be considered or used by you in evaluating the objective reasonableness requirement for perfect self-defense. (RT 11/9/92, p. 103, emphasis added.)
While deliberating, the jurors asked for and received a clarification of the expression “subjectively honest and objectively unreasonable.” After further deliberation, they found Ms. Doe not guilty of murder but guilty of voluntary manslaughter. (CT 139; RT 945-950.)
Lengthy post-trial proceedings followed. During those proceedings, the trial court made the following statement about the abuse Ms. Doe had suffered throughout her life:
… [Y]ou have someone who the evidence has shown…has suffered–it’s almost an understatement to say she has suffered abuse and neglect and battering because the kind of story we’ve heard here is–I believe that if someone had set out how you would torture a child and how you would permanently destroy a human being, it couldn’t have been accomplished any better than what has happened to the defendant in this case from the time of childhood…. (RT 966.)
C. Relevant law; application to the present case
In California, a homicide may only be justified as an act of genuine (i.e., “perfect”) self-defense if, at the time of the killing, (1) the defendant had a subjective fear of imminent death or great bodily injury from the decedent, and (2) said fear was objectively reasonable. (Penal Code sections 197 and 198; CALJIC No. 5.12; People v. Aris (1989) 215 Cal.App.3d 1178, 1186.) If the defendant had a subjective fear of imminent death or great bodily injury at the time of the killing, but said fear was objectively unreasonable, then the homicide was committed in “imperfect self-defense” and the defendant is guilty of voluntary manslaughter. (People v. Flannel (1979) 25 Cal.3d 668, 674-680.)
The question to be resolved herein is whether the trial court, in instructing the jury on perfect and imperfect self-defense, erred by giving a blanket instruction that BWS evidence could not be considered with regard to the “objectively reasonable” prong of perfect self-defense. As will appear, both the rulings of other states’ supreme courts and a sound application of California law compel the conclusion that, on the facts of the present case, such a blanket instruction was erroneous.
In State v. Kelly (N.J. 1984) 97 N.J. 178 [478 A.2d 364], the New Jersey Supreme Court reversed a defendant’s manslaughter conviction because expert testimony on BWS was wholly excluded at trial. In so doing, the supreme court first ruled that BWS evidence was admissible to show the defendant had a subjectively honest belief she was in imminent danger of death. (Id., at 375-376.) The supreme court then addressed the issue of objective reasonableness, writing as follows:
We also find the expert testimony relevant to the reasonableness of defendant’s belief that she was in imminent danger of death or serious injury. We do not mean that the expert’s testimony could be used to show that it was understandable that a battered woman might believe that her life was in danger when indeed it was not and when a reasonable person would not have so believed….Expert testimony in that direction would be relevant solely to the honesty of defendant’s belief, not its objective reasonableness. Rather, our conclusion is that the expert’s testimony, if accepted by the jury, would have aided it in determining whether, under the circumstances, a reasonable person would have believed there was imminent danger to her life. (Id., at 377; emphases added.)
The supreme court went on to say that expert testimony on BWS could be used for the following purposes, inter alia, upon retrial:
… [T]he expert could state … that defendant had the battered-woman’s syndrome, and could explain that syndrome in detail, relating its characteristics to defendant, but only to enable the jury better to determine the honesty and reasonableness of defendant’s belief. Depending on its content, the expert’s testimony might also enable to jury to find that the battered wife, because of the prior beatings, numerous beatings, as often as once a week, for seven years, from the day they were married to the day he died, is particularly able to predict accurately the likely extent of the 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. (Id., at 378; emphasis added.)
Similarly, in State v. Koss (1990) 551 N.E.2d 970, the Ohio Supreme Court cited the New Jersey Supreme Court’s holding in Kelly with approval, then stated as follows:
Expert testimony regarding the battered woman syndrome can be admitted to help the jury not only to understand the battered woman syndrome but also 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. (Id., at 973-974, emphasis added.)
In State v. Leidholm (N.D. 1983) 334 N.W.2d 811, another battered woman case, the North Dakota Supreme Court noted that in North Dakota (as in California), a killing which is done with an honest but unreasonable belief in the need to use deadly force is manslaughter. (Id., at 816.) The supreme court said that in assessing the reasonableness of the defendant’s belief, “the finder of fact must view the circumstances attending an accused’s use of force from the standpoint of the accused to determine if they are sufficient to create in the accused’s mind an honest and reasonable belief that the use of force is necessary to protect himself from imminent harm.” (Id., at 817-818.)The court further stated as follows:
The practical and logical consequence of this interpretation is that an accused’s actions are to be viewed from the standpoint of a person whose mental and physical characteristics are like the accused’s and who sees what the accused sees and knows what the accused knows. (Id., at 818.)
In State v. Hennum (Minn. 1989) 441 N.W.2d 793, the Minnesota Supreme Court listed numerous jurisdictions in which expert testimony on BWS is admissible (Id., at 798, n. 2), then stated as follows:
These courts have admitted expert testimony on this subject (1) to dispel the common misconception that a normal or reasonable person would not remain in such an abusive relationship, (2) for the specific purpose of bolstering the defendant’s position and lending credibility to her version of the facts, and (3) to show the reasonableness of the defendant’s fear that she was in imminent peril of death or serious bodily injury. [Citations.] We agree expert testimony on this issue is admissible since it would help to explain a phenomenon not within the understanding of an ordinary lay person. (Id., at 798; emphases added.)
Similarly, in State v. Allery (1984) 682 P.2d 312, 416, the Washington Supreme Court said evidence of BWS could be used “[t]o effectively present the situation as perceived by the defendant, and the reasonableness of her fear….” Likewise, in Hawthorne v. State (1982) 408 So.2d 801, 806-807, the Florida District Court of Appeal ruled that BWS evidence could be used to show it was reasonable for the defendant to have believed she and her children were in imminent danger.
Appellant submits the reasoning in the above cases, particularly Kelly, is both compelling and directly applicable to the present case. Hence, the defenses BWS evidence was admissible in the present case for two purposes. First, it was admissible to show that at the time of the shooting, Ms. Doe subjectively believed she was in imminent danger of death or great bodily injury. Second, it was admissible to show that it was objectively reasonable for a person in Ms. Doe’s position–i.e., a person who had seen what Ms. Doe had seen and who knew what Ms. Doe knew–to believe death or great bodily injury was imminent. To be more specific, it was admissible to show that: (1) like other chronically battered women, Ms. Doe had developed knowledge and powers of perception which people in general do not possess, including a heightened ability to perceive imminent violence and a keen sensitivity to the dangers underlying an escalation in her abuser’s violence; and (2) because of her heightened powers of perception, it may have been objectively reasonable for Ms. Doe to fear imminent death or great bodily injury–even though someone who lacked her experiences and heightened powers of perception might not have so feared.
Hence, the trial court in the present case erred by giving a blanket instruction that BWS evidence could not be considered in resolving the objective reasonableness question. Instead, the court should have instructed the jury that in resolving the objective reasonableness question, they could consider BWS evidence in the above-described context and only in the above-described context.
Significantly, existing California case law is consistent with such a conclusion. Indeed, it is settled under California law that in a homicide case, the jury should consider the decedent’s prior known threats in determining the objective reasonableness of the defendant’s fears and actions (People v. Moore (1954) 43 Cal.2d 517; People v. Bush (1978) 84 Cal.App.3d 294, 302-304), and it appears logically clear that such a jury should also consider the decedent’s prior beatings of the defendant in resolving the objective reasonableness issue (see instruction given in People v. Aris, supra, 215 Cal.App.3d at 1191). It thus follows under presently existing case law that in California, as in the other jurisdictions discussed above, the objective reasonableness of a battered woman’s fears and actions must be assessed in light of the woman’s experiences, knowledge and heightened powers of perception.
Nor do the two cases relied on by the trial court — People v. Aris and People v. Day–support a different conclusion. In Aris, a long-time victim of marital abuse shot her abuser five times in the back as he lay sleeping. (People v. Aris, supra, 215 Cal.App.3d at 1184-1185.) On appeal, the Fourth District discussed at length the “imminence” requirement in self-defense cases (Id., at 1186-1192), then held that Ms. Aris’ BWS evidence could not be used to show her fears and actions were objectively reasonable. (Id., at 1193-1196.) In Day, this Court briefly reiterated and quoted from the holding in Aris, but added nothing thereto. (People v. Day, supra, 2 Cal.App.4th at 414-415.)
Appellant, like this Court, does not quarrel with the result reached in Aris. Both Ms. Aris‘ fear of imminent death and her reaction in response thereto, while understandable, were objectively unreasonable as a matter of law, and no amount of BWS evidence could have altered that reality. The case at bar, however, is fundamentally different from Aris in that the fatal shooting occurred under circumstances where, depending upon the jury’s resolution of the facts, the defendant’s fear of imminent death or great bodily injury could well have been objectively reasonable. Hence, unlike Aris, the case at bar is one in which the defendant’s knowledge, experience and special powers of perception were directly relevant to the objective reasonableness question. For this reason, neither the holding of the Fourth District in Aris nor the approval of that holding by this Court in Day can justify the trial court’s giving of the challenged instruction. Rather, for all the reasons set forth above, the challenged instruction must be deemed erroneous.
Where an error of federal constitutional magnitude has occurred during a defendant’s trial, reversal is required unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
In the present case, the court’s instructional error was of federal constitutional magnitude for two reasons. First, by improperly limiting the purposes for which the defenses BWS evidence could be considered, the court violated Ms. Doe’s right to present a defense, as guaranteed by the Sixth and Fourteenth Amendments. (United States v. Unruh (9th Cir. 1987) 855 F.2d 1363, 1372; United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202.) Second, by instructing the jury to assess the objective reasonableness of Ms. Doe’s fears and actions without regard to the BWS evidence, the court violated Ms. Doe’s Fourteenth Amendment right to equal protection. (See, e.g., State v. Wanrow (1977) 88 Wash.2d 221 [559 P.2d 548, 558-559], finding equal protection violation where jury instructions deprived defendant of right to have self-defense claim evaluated from a woman’s perspective.) Hence, Ms. Doe’s conviction must be reversed unless the error was harmless beyond a reasonable doubt.
The error in question cannot be redeemed under such a standard of prejudice, nor could it be redeemed under a lesser standard. As set forth ante in the Statement of the Facts, and post in Argument II, there was abundant evidence to support Ms. Doe’s claim of self-defense. Crucial to this claim, however, were (1) the testimony of Ms. Doe, Ms. G, Ms. M, Mr. B and Alice Doe regarding the recent escalation in Mr. H’s violence; and (2) the expert testimony of Dr. Bowker regarding a battered woman’s special sensitivity to such a dangerous escalation. The challenged instruction, however, prevented the jury from considering this evidence in its proper light. This reality alone, appellant submits, is sufficient to compel a finding of prejudice.
Three other considerations also militate in favor of a finding of prejudice. First, the jury’s deliberations lasted over nine hours in all. (CT 60-63; see, e.g., People v. Day, supra.) Second, the prosecutor twice stressed to the jury the fact they were being forbidden to consider BWS evidence in resolving the objective reasonableness issue; as a result, there is no doubt the jury took note of the erroneous instruction. (RT 11/9/93, pp. 20-23 and 88.) Finally, the jury’s verdict and their request for a clarification of the expression “subjectively honest and objectively unreasonable” show that Ms. Doe was in fact convicted under a theory of imperfect self-defense; indeed, the prosecutor acknowledged as much at the proceedings of January 11, 1993. (RT 981-982.) For these reasons, too, the conclusion is inescapable that the instructional error prejudiced Ms. Doe.
In sum, the challenged instruction was not only erroneous, but seriously prejudicial. It cannot be redeemed as harmless beyond a reasonable doubt, nor could it be redeemed under any other standard of prejudice. The judgment against Ms. Doe must be reversed.
Footnote 1: Bowker noted that the “good times” in such a relationship can be extremely addictive, since intermittent reinforcement is stronger than constant reinforcement. (RT 330)