Brief Bank # B-656 (Re: F 8.42 n3 Heat Of Passion: Objective Standard In Light Of Defendant’s Past Experience (PC 192(a)); F 9.35.1 n3 Battered Woman/Child Syndrome: Jury Must Consider Objective Standard In Light Of Defendant’s Past Experience (EC 1107); FORECITE At Work.)
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NOTE: The text of the footnotes appear at the end of the document.
Date of Brief: August 1995
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent, Case No. S000000
v. Fresno County
Superior Court
JANE DOE, No. 000000
(Court of Appeal
Defendant and Appellant. #FO00000)
____________________________________/
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 BRIEF ON THE MERITS
JIM FAHEY
State Bar #122029
P.O. Box 4956
Arcata, CA 95521-1956
Telephone: (707) 822-5776
Attorney for Appellant
APPELLANT’S BRIEF ON THE MERITS
STATEMENT OF THE CASE
On May 8, 1992, the Fresno County District Attorney filed an information charging appellant Jane Doe with murder, a violation of Penal Code section 187. It was further alleged that appellant had personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a). (CT 24.)
On May 28, 1992, appellant pled not guilty to the above charge and denied the accompanying allegation. (CT 25.)
On October 28, 1992, a jury trial began before the Honorable A. Dennis Caeton. (CT 41.) On November 3, 1992, the court granted a defense motion, brought pursuant to Penal Code section 1118.1, for a judgment of acquittal as to the charge of first-degree murder. (CT 52.) On November 10, 1992, the jury found appellant not guilty of second-degree murder, but guilty of voluntary manslaughter. (CT 63-64.) The jury found true the section 12022.5 allegation. (CT 64-65.)
On August 19, 1993, the court sentenced appellant to the lower term of three years for the substantive offense of voluntary manslaughter, then imposed a consecutive term of five years (the upper term) for the section 12022.5 finding. Appellant’s total sentence was thus eight years. (CT 159.)
On August 27, 1993, appellant filed a timely notice of appeal. (CT 196-200.)
On March 10, 1995, the Fifth Appellate District issued an opinion affirming appellant’s conviction but ordering that a new sentencing hearing be held.
On April 12, 1995, appellant petitioned this Court for review. On June 16, 1995, this Court granted appellant’s petition.
STATEMENT OF THE FACTS [Footnote 1]
Prosecution evidence
At 8:48 p.m. on March 28, 1992, Fresno Police Officer Luther Reagan responded to a call concerning a possibly demented elderly person at 417 North Fruit Street. (RT 68-69.) Upon arriving at the 400 block of North Fruit Street, however, Reagan was approached by Ms. C.G., who resided at 407 North Fruit. (RT 69-70, 133.) Ms. C.G. pointed to the house at 409 North Fruit and told Reagan, “She’s in here.” (RT 70.) Reagan asked Ms. C.G. what she meant by this statement; Ms. C.G. replied that the people at 409 North Fruit had been arguing all day long and that she had just heard a gunshot. (RT 70-71.)
Reagan was naturally interested in what Ms. C.G. had told him, and he therefore began to question her. (RT 70.) As he did so, however, the front door of the house at 409 North Fruit came open and appellant Jane Doe walked down the stairs. (RT 70-72.) She looked agitated, upset, angry and distraught. (RT 92.) She walked straight toward Reagan as if she were surrendering, and she said, “I shot him. That”s right, I shot him. I just couldn’t take him beating on me no more.” (RT 7072.) She further stated that the man she had shot was her husband, Mr. H, and that she would show Reagan where the gun was. (RT 73.)
Reagan followed appellant into the house. Inside, he found a .357 Magnum revolver on the living room table and Mr. H on the kitchen floor. (RT 73-74, 82.) Reagan handcuffed appellant and, as other officers began to arrive, turned his attention to Mr. H. (RT 74-75.) Reagan and Officer Frausto rolled Mr. H over and found he had a gunshot wound under his left nipple. (RT 76.) They gave Mr. H first aid, whereupon he temporarily showed a dramatic improvement. (RT 76-77.)
Officer Teri Ann Terry took charge of appellant, who told Terry, “I’m fed up. Yeah, I shot him. I’m just tired of him hitting me. He said, ‘You’re not going to do nothing about it.’ I showed him, didn’t I? I shot him good. He won’t hit anybody else again. Hit me again; I shoot him again. I don’t care if I go to jail. Push came to shove, I guess people gave it to him, and, kept hitting me. I warned him. I warned him not to hit me. He wouldn’t listen.” (RT 97.)
Terry took appellant to the police station, where she made additional statements. (RT 100.) As to the day before the shooting, appellant told Terry as follows: that she and Mr. H went to someone’s house; that Mr. H became intoxicated and hit her on the way home; that Mr. H hit her some more after they got home; and that Mr. H shot at her later that evening, but that the bullet missed her and hit a tree outside the bedroom window. (RT 100.) With regard to the date of the shooting, appellant told Terry as follows: that Mr. H became drunk once again (RT 100-101); that he thereupon hit her and cursed her profusely (RT 100-101); that she saw the gun lying in the living room, picked it up and told Mr. H she would not let him hit her again (RT 100-101); that Mr. H was going to pick something up and hit her with it (RT 101); that she therefore aimed the gun at Mr. H and shot him (RT 101); and that she thereafter set the gun down and went outside to wait for the police (RT 101). Appellant did not tell Terry what it was that Mr. H was going to strike her with when she shot him. (RT 101.)
Mr. H later died from his gunshot wound. (RT 149.) His autopsy revealed that at the time of his death, he was 5’8″ tall, weighed 270 pounds and had no measurable amount of alcohol or other drugs in his bloodstream. (RT 145, 149-151, 201-204, 213-218.) Blood samples taken from appellant after her arrest showed that she also had no illegal drugs in her bloodstream, but that she did have a substantial blood alcohol content of .17%. (RT 199-201, 210-213.)
The defense
Appellant was brought to trial on a charge of murder. At trial, the defense presented evidence that appellant killed decedent in self-defense, including expert testimony that appellant suffered from Battered Woman Syndrome (“BWS”) at the time of the shooting. The evidence as to BWS will be set forth at length in the “Argument” portion of this brief. [Footnote 2] As to the issue of self-defense generally, the relevant evidence will be summarized in the following paragraphs.
1. Appellant’s testimony concerning the previous day
With regard to decedent’s conduct on the day before the shooting, appellant testified decedent came home drunk that evening, struck her, cursed her and yelled at her irrationally, telling her that something (“it”) was all her fault. (RT 406, 408-410.) He also accused her of wanting to have sex with four men who were then searching the neighborhood for their dog. (RT 459-461.) When she went into the bedroom in an attempt to escape his wrath, he followed her, yelled at her, picked up his .357 Magnum, continued to yell at her, pointed the gun in her direction and fired. (RT 408-410, 414-415.) Appellant was near the bedroom window when this happened. (RT 415.) The shot terrified her. (RT 415.)
2. Corroborating evidence concerning the previous day
Several other witnesses corroborated appellant’s testimony concerning decedent’s actions on the day before the shooting. Ms. G.G., a neighbor of appellant’s, testified she heard a nearby gunshot that evening; Ms. G.G. further averred that on the following day, appellant told her that decedent had shot at her. (RT 662-664.) Police Technician Michael Hall verified that a bullet had, at some point in time, gone through the frame of the bedroom window and lodged in a tree outside the house. (RT 176-178.) Officer Robert Schiotis testified that the bullet in the tree was the same one which had gone through the window. (RT 680-681.)
3. Appellant’s testimony about date of shooting
As to the date of the shooting, appellant testified she and decedent traveled to and from the Sequoia Mountains that day. They drank beer and argued as they did so. (RT 423-424.) Decedent struck her while they were going to the mountains, then struck her again as they were coming home. (RT 423-425.) He also told her, as they were coming home, that the mountains would be a good place for him to kill her, since no one would find her body for some time. (RT 424-425.)
Once appellant and decedent got home, their argument intensified. Decedent wanted to buy some beer, but appellant told him he could not afford to get in trouble for writing another bad check. (RT 427, 434-435.) Inability to procure alcohol commonly made decedent even more disagreeable than normal, and such proved to be the case on this occasion. (RT 428.) The argument continued, with appellant yelling loudly at decedent in an effort to get him to listen. (RT 428.)
As the argument progressed, appellant went to the living room couch and decedent went to the kitchen. (RT 435-436.) Decedent’s .357 Magnum was on a chair next to the couch, where he had left it upon returning from the mountains. (RT 437-438.) He continued to berate appellant from the kitchen, then came out of the kitchen and hit her on the right side of her face. (RT 438-439.) He walked back to the kitchen thereafter, continuing to insist that appellant was going to write him a check for beer, and then he told her, “This time, bitch, when I shoot at you, I won’t miss.” (RT 439-441.)
Having so stated, decedent walked from the kitchen back into the living room and reached for the gun. (RT 441.) By the barest of margins, appellant was able to grab the gun first. She pointed it at decedent and backed him into the kitchen. (RT 441, 554-556.) Once in the kitchen, however, decedent reached forward with a crazy look in his eyes. Appellant then shot him, having no doubt as she did so, based on his previous actions and statements, that he was going to kill her. (RT 441, 443-445, 487, 584-585, 588.)
4. Corroborating evidence about date of shooting
One portion of appellant’s testimony, namely her assertion that decedent consumed alcohol on the date of the shooting, proved to be false. Prosecution witnesses testified that decedent’s postmortem blood sample had no measurable amount of alcohol in it. (RT 199-201, 210-213.)
In at least seven other respects, however, there was evidence to support appellant’s assertion that the shooting was an act of self-defense. First, the undisputed evidence showed that decedent was an enormous man, weighing 270 pounds at the time of his death. (RT 145.) Second, neighbor Ms. F testified that about 30 seconds before the fatal shot, she heard appellant say, “Stop it, [Mr. H]. Stop it.” (RT 646-650, emphasis added.) Third, Officer Terry testified that appellant told her she shot decedent because he had been beating on her and because he was about to hit her with something. (RT 97-102.) Fourth, Officer Reagan testified that appellant told him she shot decedent because he was beating on her and would not stop doing so. (RT 81.) Fifth, defense counsel introduced Defense Exhibits N and 0, a transcript and tape of a call appellant made to 9-1-1 about an hour before the shooting; the call itself merely concerned a neighbor’s alleged threat against decedent, but the tape was significant in that decedent could be heard in the background, very belligerently saying, “You tell them I want a cop out here!” Sixth, People’s Exhibit Three, one of appellant’s booking photographs, showed the right side of her face was swollen on the night of the shooting. (RT 125-126, 451.) Finally, most importantly of all, the testimony of pathologist Michael Chambliss showed that the fatal bullet entered decedent’s body at a slightly left-to-right angle and a slightly downward angle (RT 143, 147); as defense counsel later suggested to the court, this fact was fully consistent with the idea decedent was reaching for the gun (or some other object) at the time of the fatal shot (RT 995).
ISSUE PRESENTED
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, two things were true: (1) The defendant subjectively feared imminent death or great bodily injury; and (2) the defendant’s fear was objectively reasonable, in that a reasonable person would have had such a fear. (Penal Code section 197 and 198; CALJIC No. 5.12.) If the defendant had a subjective fear of imminent death or great bodily injury, 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.)
In prior published decisions, the Fourth and Fifth Appellate Districts have held that when a chronically battered woman kills her abuser and asserts she did so in self-defense, expert testimony on Battered Woman Syndrome (“BWS”) is admissible to show the woman had a subjective fear of imminent death or great bodily injury, but absolutely inadmissible to show said fear was objectively reasonable. (People v. Day (1992) 2 Cal.App.4th 405, 414-415; People v. Aris (1989) 215 Cal.App.3d 1178.) In the case at bar, the Fifth District has reiterated this holding. (Opinion, pp. 7-9.) The issue presented by this case is whether the prior holdings in Aris and Day, and thus the holding of the Fifth District in this case, are legally correct.
FOREWORD
In the past 15 years, our society has finally come to realize that domestic violence is a pervasive and terrible problem. Numerous books and articles have been written on the subject by psychologists, sociologists and legal scholars, and many states have reformed their laws to provide greater penalties for batterers and/or greater rights for their victims. Many people, however, feel that the reforms have not been nearly sweeping enough, and that our legal system is still particularly unfair to women who kill their batterers. Some have argued, for instance, that the “imminence” requirement of self-defense law is unfairly applied to women who have suffered severe, long-term domestic violence, since many such women always believe they are in imminent danger of grave injury–a belief which is not unreasonable for someone with their experiences. Others have argued that the “objectively reasonable person” standard is male-oriented and unfairly applied to the woman who, after years of physical and psychological torture, kills her abuser at a moment when she is not in immediate danger of grave injury.
Counsel for appellant feels these arguments have a good deal of merit, but does not believe this appeal is the proper vehicle for them, since they were never raised in the trial court or appellate court. It should be stressed, however, that the absence of such arguments from this brief does not in any way constitute a disavowal of them.
ARGUMENT
WHEN A CHRONICALLY BATTERED WOMAN KILLS HER ABUSER AND THEREAFTER ASSERTS SHE DID SO IN SELF-DEFENSE, EXPERT TESTIMONY ON BATTERED WOMAN SYNDROME MAY, DEPENDING UPON ITS CONTENT, BE HIGHLY RELEVANT TO THE ISSUE OF OBJECTIVE REASONABLENESS. THE APPELLATE COURT’S BLANKET HOLDING TO THE CONTRARY IS PREJUDICIALLY ERRONEOUS.
A. Relevant testimony and procedural history
1. Preliminary procedural history
At the beginning of appellant’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, supra, 215 Cal.App.3d 1178, and People v. Day, supra, 2 Cal.App.4th 405. (RT 41-59.)
The trial proceeded. The prosecutor presented evidence proving that appellant killed Mr. H (see pp. 5-7, ante), and then he rested his case. (RT 266.) The defense then called Dr. Lee Bowker, a recognized expert on BWS (People v. Day, supra, 2 Cal.App.4th at 412; RT 267-269).
2. Bowker’s testimony as to batterers and battered women in general
After reciting his credentials, Dr. Bowker testified 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 absorbed 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 women Bowker studied had given up hope and resigned herself to being a 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, counterviolence, seeking the help of friends and family, going to a battered women’s shelter, contacting the police and/or an attorney, going to doctors and 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, the batterers would temporarily cease their behavior, but would later lapse back into it unless something like a court order or a women’s shelter prevented 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 will 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 278281.) 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 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 the 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 appellant in particular
Bowker testified he spent one full day talking to appellant, at the conclusion of which time he determined she was suffering not only from Battered Woman Syndrome (“BWS”), but also from being the child of an alcoholic and from Incest Survivor Syndrome (“ISS”). (RT 291.) He said appellant’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 appellant 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, appellant developed sexual difficulties, a penchant for abusing alcohol and other drugs, and very poor judgment as to which men make good partners. (RT 316.)
As to appellant’s adolescent and adult relationships with men, Bowker explained appellant had three primary partners prior to decedent, all of whom were abusive and significantly older than she was. (RT 317-318.) The first such relationship was with a 240-pound man named Mr. R, whom appellant married at age 15; during the course of the marriage, Mr. R beat, kicked, berated, raped and forcibly sodomized appellant, 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 appellant 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 appellant felt Mr. C was not controlling enough and did not provide her with adequate protection. (RT 323-324.) The third such relationship was with a man named Mr. S, an intravenous drug user who beat appellant 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, appellant met decedent Mr. H, a massive 49 year-old man with whom she had a classic battering relationship with 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 decedent vowing to change and appellant believing him; [Footnote 3] and (4) a return to the tension-building phase. (RT 328-329.)
The cycle of violence between decedent and appellant, Bowker noted, would be triggered by trivial matters, such as appellant’s having talked to another man or having failed to clean the house to decedent’s satisfaction. (RT 330-331.) It also became worse as time went on, especially when decedent got off parole shortly before his death. (RT 332-333.) He then became even more physically and emotionally abusive than he had been previously, making repeated threats against appellant’s life and going so far as to shoot at her on the night before his death. (RT 334-335, 338-339.) Battered women, Bowker noted, watch carefully for this sort of escalation in violence, and are especially sensitive to the danger it reflects. (RT 338-339.)
Bowker acknowledged that appellant was often “mouthy” and defiant with decedent, 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 decedent often allowed appellant 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 appellant 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 appellant showed virtually every known symptom of BWS, Bowker averred he was certain appellant was telling the truth about her experiences. (RT 297-299, 310-314.) He further said appellant not only was suffering from BWS, but also had a life story “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 appellant, Bowker said, was “about as extreme a pattern as you could find.” (RT 392.)
4. Appellant’s testimony
Appellant confirmed that what she had told Bowker about her childhood and her adult relationships was true. (RT 452453.) As to her childhood, she further averred that her father gave her alcohol and cocaine from about the age of seven on, that he forced her to perform fellatio and engage in other sexual acts, and that she finally ran away from home at age fourteen. (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 thereafter treated her like a punching bag. (RT 457-458.)
Appellant likewise confirmed what Bowker had said about her relationship with decedent. She said decedent 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.)
Appellant also confirmed what Bowker had said about the escalation in decedents violence during the final weeks of his life–i.e., after he got off parole. From that point on, appellant said, decedent 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.) 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 some time. (RT 424-425.)
5. Corroborating testimony
Two of appellant’s family members gave testimony corroborating what Dr. Bowker and appellant had said about appellant’s experiences before meeting decedent. Ms. T.C., appellant’s younger sister, said she was aware that appellant was beaten by a number of men before her involvement with decedent. (RT 818.) Mrs. Doe, appellant’s mother, likewise testified that she saw bruises on appellant a number of times before appellant met decedent. (RT 753.)
As to appellant’s relationship with decedent, the defense produced a vast assortment of witnesses whose testimony, when taken cumulatively, removed any doubt about what kind of mate decedent was. Six witnesses–parole agent La’Tana Eddings, Fresno Police Officer John Romo, neighbor Ms. F, neighbor Ms. G.G., ex-housekeeper Ms. S.S. and ex-girlfriend Ms. S–gave testimony establishing the fact decedent was a chronic drunkard. (RT 634-635, 641-644, 646-648, 657, 658-660, 703-706, 787.) Ms. S.S. further averred that decedent was very fussy about how his house was cleaned, that he angered easily, that he was extremely jealous, that he constantly told appellant what to do, and that he had previously tried to throw a woman named Ms. S.J. through a window. (RT 708-709, 720-722.) Ms. S further testified that when she lived with decedent, 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, decedent called her on the telephone, 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.C. testified that he once saw decedent knock appellant down and drag her around by the hair, that he saw decedent hit appellant on at least four other occasions, that he saw bruises on appellant’s face on still other occasions, and that he had previously heard decedent threaten the lives of appellant and others. (RT 792795.) Ms. H.G. testified that she personally was threatened by decedent two days before his death, that she had previously heard decedent argue with appellant, and the she had also seen appellant bleeding from the lips. (RT 856-859.) Mr. J.H. testified that he had seen decedent hit appellant on several occasions and had also seen bruises on appellant’s arm, but that when he told appellant to leave decedent, she replied that she loved decedent and that he was the best thing to happen to her. (RT 867-869, 871.) Ms. B.O. testified that she once lived with decedent for three years, during which time he struck her on three different occasions. (RT 888-891.) Ms. R.H. averred that during the time decedent and appellant were together, she saw decedent pull appellant’s hair and saw several injuries on appellant, including a bloody lip, a black eye and a cut arm. (RT 935-939.) Ms. M.H. testified that she had seen appellant with her arm bruised, her body black and blue, and her ability to walk severely impaired; Ms. M.H. further testified that decedent once came to her house at 3 a.m. looking for appellant, at which time he said he was going to kill appellant once he got off parole. (RT 825-831.) Ms. M.H.’s ex-boyfriend, Mr. D.B., testified that he was present when this occurred and that he also heard the threat in question. (RT 846-849.)
Three of appellant’s relatives also testified about appellant’s relationship with decedent. Ms. T.C., appellant’s youngest sister, said she had previously seen appellant with an apparent broken nose and with bruises on her neck, side and legs. (RT 810-811.) Ms. J.H., appellant’s stepsister, likewise averred that she had seen decedent grab appellant by the throat and hit her on the back of the head, and that she had seen bruises on appellant’s face and back many times, including several of the occasions on which appellant came to her house following an argument with decedent. (RT 761-765.) Mrs. Doe, appellant’s mother, said she had seen various injuries on appellant eight different times at appellant’s house, and that she had heard decedent threaten to hit, slap and kill appellant; the lattermost threat occurred two and one-half weeks before decedent’s death. (RT 738, 742-743.)
6. Post-evidentiary procedural history
In his argument to the jury, the prosecutor admitted there was no doubt decedent had hit appellant on a number of occasions. (RT 11/9/93, p. 45.) He twice emphasized, however, that appellant’s BWS evidence could only be used to show that she had a subjective fear of imminent death or great bodily injury when she shot decedent, and not to show that said 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, emphases added.)
While deliberating, the jurors asked for and received a clarification of the expression “subjectively honest and objectively unreasonable.” Having received such a clarification, they then deliberated further and found appellant 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 which appellant had suffered throughout her childhood and her adult 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.)
B. Issue presented by this case
As noted above, appellant’s BWS expert testified that a battered woman watches carefully for an acceleration in her mate’s abusiveness and is especially sensitive to the danger such an acceleration portends. (RT 338-339.) Specifically, Dr. Bowker testified as follows:
[Appellant) did report life threats many times with words such as “you’re never going to leave me.” “Shut up before I blow your fucking head off.” These are quotes of the words that she was quoting to me, and, of course, the incidents of the night before he was killed and the night that he was killed, but those are not the first times that these threats were made.
A difference, I think, is that she felt for the first time that he really intended to do it and, you know, my experience with battered women who kill in self-defense their abusers, it’s always related to their perceived change of what’s going on in a relationship. They become very sensitive to what sets off batterers. They watch for this stuff very carefully.
If you read concentration camp literature, you can see that, too. Anybody who is abused over a period of time becomes sensitive to the abuser[‘]s behavior and when she sees a change acceleration begin in that behavior, it tells them something is going to happen and usually the abuser said things specifically like “I’m really going to kill you this time,” and, you know, they don’t admit to it that something happens that there’s a label put on it by the abuser which was certainly true in Mr. H’s case and that’s intensification or an acceleration of the process is what leads to some self-defensive action which is beyond anything that the woman has ever done before. (RT 338-339.)
Significantly, several published cases similarly indicate that a chronically battered woman learns, as a result of the abuse she has previously suffered, to perceive with accuracy when her mate is becoming increasingly dangerous to her. In People v. Torres (N.Y., 1985) 488 N.Y.S.2d 358, the court determined that the defense expert’s proposed testimony on BWS was admissible, then summarized it, in pertinent part, as follows:
In particular, it was proposed that Dr. Blackman would testify that a battered woman, through her extensive experience with prolonged physical abuse, learns to distinguish between varying degrees of danger and violence. This expert explanation concerning such acute discriminatory powers would provide a basis for the jury to understand how at the time of the shooting [decedent’s] violence had, in the defendant’s mind, passed from the “normal” and tolerable into the “abnormal” and life threatening. (Id., at p. 362.)
Similarly, in Banks v. State (Md., 1992) 608 A.2d 1249, a Maryland court noted that Judith Wolfer, the Legal Director of the House of Ruth, had previously testified as follows before Maryland’s House Judiciary Committee:
The cyclical nature of an intimate battering relationship enables a battered spouse to become expert at recognizing the warning signs of an impending assault from her partner–signs frequently imperceptible to outsiders. For some victims, the sign may be “that look in his eye”; for others, it is the advent of heavy drinking, or heightened irrational jealousy. (Id., at p. 1252.)
Additionally, in State v. Kelly (N.J., 1984) 478 A.2d 364, the New Jersey Supreme Court approved the use of expert testimony on BWS, then observed as follows:
Depending on its content, the expert’s testimony might. . . enable the 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 violence in any attack on her. (Id., at p. 378.)
Literature likewise indicates that a battered women has a heightened ability to foretell with accuracy: (1) when her abuser is about to become violent; and (2) how bad the violence is likely to be. In “Empowering and Healing the Battered Woman” (New York, 1992), Dr. Mary Ann Dutton observed as follows:
Nonviolent behaviors may take on the same property as violent behaviors when their function is to control a victim by means of threats or prior patterning of behavior. For example, a husband’s loud voice or a raised fist may signal danger when these behaviors have been associated with his actual use of violence in the past or the reasonable expectation that he might use violence in the future. Thus, subsequent to the initial occurrence of violence, many seemingly nonviolent behaviors of the batterer (e.g., angry voice, threatening gestures, extreme calmness, a particular look in the eye, excess use of alcohol, staying out late at night) may acquire similarly controlling properties. This may be explained by their prior association with actual violence through a process of chaining in a classical conditioning paradigm. Thus, the meaning of any particular behavior by the batterer must be considered in the context of his prior violence and behaviors intended to control his partner.
Many women describe a certain “look in the eye” that signals extreme danger. For a number of women, it was that look that triggered a self-defensive reaction. They had come to know that the look meant violence was inevitable and imminent. Unless one were to understand the patterning within previous incidents, when “that look” preceded the violent rape, the choking to unconsciousness, or the severe beating, it would make little sense why a woman might respond with such terror at simply “a look in the eye.” When learned with precision, the cues given by the barterer that signal danger to the battered woman comprise a language whose subtlety defies meaning for those not familiar with it. (Id., at p. 6, emphasis added.)
Similarly, in “Women’s Self-Defense Cases: Theory and Practice” (New York, 1981), Elizabeth Bochnak wrote as follows:
The battered woman learns to recognize the small signs that precede periods of escalated violence. She learns to distinguish subtle changes in tone of voice, facial expression, and levels of danger. she is in a position to know, perhaps with greater certainty than someone attacked by a stranger, that the batterer’s threat is real and will be acted upon. (Id., at 45.)
Hence, it is clear that a chronically battered woman is not merely apt to perceive imminent danger of grave bodily harm where no such danger exists and no reasonable person could believe it exists. Rather, such a woman has an ability to perceive such danger with accuracy where an ordinary person could not, based on her familiarity with the subtle signals which her abuser gives off prior to episodes of severe violence.
In her appeal to the Fifth District, appellant argued that when a battered woman kills her abuser and asserts she did so in self-defense, expert testimony as to the woman’s heightened capacity for recognizing an imminent danger of grave harm is relevant to the issue of objective reasonableness. (AOB 9-29.) Appellant thus argued that the trial court’s limiting instruction to the contrary was erroneous. (AOB 9-29.)
The appellate court rejected appellant’s argument, holding that the limiting instruction on BWS evidence correctly stated the law in California. (Opinion, pp. 7-9.) In so doing, the appellate court quoted at length from its prior holding in People v. Day, supra, 2 Cal.App.4th 405, and concluded thusly:
As the above quotation from Day illustrates, it is the opinion of this court that such evidence is not relevant and would create an entirely new standard of objective reasonableness having nothing to do with the ordinary person, but instead making the standard based upon the ordinary battered person. This is not the law in California. [Citations to Penal Code section 25, 28 and 198.] (Opinion, pp. 8-9.)
In Section C of this argument, post, appellant will explain that the appellate court’s interpretation of California law is erroneous. In Section D, post, appellant will explain that the laws of other jurisdictions overwhelmingly support her position. Finally, in Section E, post, appellant will explain that on the facts of this case, the trial court’s giving of the erroneous limiting instruction was prejudicial.
C. Relevant California law; application to this case
As indicated ante at page 10, the appellate court’s holding in the present case finds support in two published decisions, namely People v, Aris, supra, 215 Cal.App.3d 1178, and People v. Day, supra, 2 Cal.App.4th 405, wherein appellate courts held that expert testimony on BWS is absolutely inadmissible to establish objective reasonableness. [Footnote 4] This Court has previously recognized, however, that the objective reasonableness or unreasonableness of a defendant’s actions must be assessed in light of what the defendant subjectively knew. In People v. Moore (1954) 43 Cal.2d 517, this Court reversed a defendant’s manslaughter conviction for several reasons, one of which was the trial court’s failure to give an antecedent threats instruction. In so doing, this Court quoted with approval the following passage from People v. Torres (1949) 94 Cal.App.2d 146:
It is conceded that no instruction was given with respect to the influence of antecedent threats on the right of self-defense. Where, as in this case, there is evidence tending to show the making of threats of death or great bodily harm by deceased against the defendant, which are relied on as influencing or justifying defendant’s act, instruction on the law of this subject is proper [citation] and if not covered a correct instruction on the subject proposed by one of the parties should be given. . . . [T]he proposed instruction would not tell the jury that under the circumstances mentioned the defendant would be justified in committing an assault with a deadly weapon in self-defense, but only that the jury was ‘to take such facts and circumstances into. . .consideration in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.’” (Id., at 528; underlining added, italics in original.)
Significantly, the holding in Moore is still good law, including this Court’s ruling that a defendant’s subjective knowledge of antecedent threats is relevant to the issue of whether his/her fear of imminent death or great bodily injury was objectively reasonable. (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664; People v. Pena (1984) 151 Cal.App.3d 462, 475; People v. Bush (1978) 84 Cal.App.3d 294, 302-304.)
Similarly, in People v. Ochoa (1993) 6 Cal.4th 1199, 1202-1203, the defendant was charged with gross vehicular manslaughter and had previously been convicted of drunk driving. As a result of his prior conviction, the defendant had been made to attend an alcohol awareness class which underscored the dangers of drunk driving. (Id., at 1203.) The Court of Appeal held that the defendant’s prior experiences in the drunk-driving class were irrelevant to the issue of gross negligence. (Id., at 1204.) This Court disagreed and held as follows:
We have previously explained that “[g]ross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] ‘The state of mind of a person who acts with conscious indifference to the consequences is simply, “I don’t care what happens.”‘ [Citation.] The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citation.]
………………………………………….
We believe the Court of Appeal’s majority analysis is flawed. In determining whether a reasonable person in defendant’s position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks. True, as the majority observed, the defendant’s lack of such awareness would not preclude a finding of gross negligence if a reasonable person would have been so aware. But the converse proposition does not logically follow, for if the evidence showed that the defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence (as opposed to simple negligence) would be appropriate whether or not a reasonable person in defendant’s position would have recognized the risk. (Id., at 1204-1205, italics in original.)
In light of this Court’s holdings in Moore and Ochoa, it is clear the appellate court has erred in the present case. Under Moore, a defendant’s subjective knowledge of the decedent’s prior threats must be considered in determining whether it was objectively reasonable for the defendant to fear imminent death. Likewise, under Ochoa, a defendant’s subjective knowledge must be considered in determining what it was objectively reasonable for the defendant to think about the dangerousness of his/her conduct. Hence, under California law, the objective reasonableness of a defendant’s thoughts and actions must be assessed not by determining what a reasonable person in a vacuum would have thought and done, but rather by determining what a reasonable person in the defendant’s position would have thought and done. Once this is understood, it is clear the following two-part rule should govern the admissibility of BWS evidence to show objective reasonableness:
(1) If BWS evidence merely tends to show it was understandable the defendant feared imminent death or great bodily injury when she killed the decedent, but a reasonable person in the defendant’s position would not have feared such harm, then the BWS evidence is admissible solely to show the defendant’s subjective fear;
(2) If, however, BWS evidence tends to show that the defendant, by virtue of her prior experiences, was especially able to discern with accuracy when her abuser was about to become violent and how bad the violence was likely to be, then such evidence is admissible to show the objective reasonableness of the defendant’s fear.
In sum, the relevant portions of Aris and Day find support neither in reason nor in settled principles of California law. When a chronically battered woman kills her abuser and asserts she did so because she feared grave injury was imminent, the jury must assess the objective reasonableness of the woman’s fear in light of her subjective knowledge of her abuser’s behavior patterns, and especially in light of her heightened ability to discern when her abuser was about to become violent and how bad the violence was likely to be. Appellant respectfully asks that this Court disapprove the contrary holdings of the appellate courts in Aris, Day and the present case.
D. The law in other jurisdictions
In her petition for review, appellant noted that a study by the National Clearinghouse for the Defense of Battered women reports 26 other jurisdictions admit BWS evidence to show the reasonableness of a battered woman’s fear of death or great bodily injury, whereas only 2 other jurisdictions disallow such use of BWS evidence. (Petn. for Rev., pp. 30-31, citing “Trend Analysis: Expert Testimony on Battering and its Effects in Criminal Cases,” by Janet Parrish, Esquire, Consultant to the National Clearinghouse for the Defense of Battered Women, prepared for The Women Judges’ Fund for Justice. [Footnote 5] After a fairly extensive, though admittedly not exhaustive, study of the law in other jurisdictions, appellant has come up with figures and conclusions somewhat different from those of the National Clearinghouse. What follows is a summary of appellant’s findings regarding the laws of other jurisdictions:
(1) When the study of BWS was in its early stages and American courts were first learning about it, jurisdictions differed as to whether BWS testimony was admissible at all. (Held admissible: Hawthorne v. State (Fla., 1982) 408 So.2d 801, Smith v. State (Ga., 1981) 277 S.E.2d 678, Ibn-Tamas v. United States (D.C. App., 1979) 407 A.2d 626; held inadmissible: State v. Thomas (Ohio, 1981) 423 N.E.2d 137; Buhrle v. State (Wyo., 1981) 627 P.2d 1374.) The most recent case appellant has found declaring BWS evidence categorically inadmissible, however, is Hill v. State (Ala., 1986) 507 So.2d 554, and that case was promptly disapproved by the state’s high court in Ex parte Hill (1987) 507 So.2d 558.
(2) In its 1993 study, the National Clearinghouse for the Defense of Battered Women reported that Wyoming was the only state wherein the admissibility of BWS evidence was still largely in doubt. (Natl.Cl.Rprt., p. 18.) Since then, Wyoming has passed a statute specifically providing that BWS evidence is admissible to support a claim of self-defense in a criminal case. (Wyoming Statutes (Crimes and Offenses) Title 6-1-203 (1994).)
(3) In many states, there are no published cases expressly approving the use of BWS evidence or defining the scope of its admissibility, but there are one or more published cases which make it clear trial courts have allowed such evidence. [Footnote 6]
(4) In every out-of-state, post-1986 case appellant has found which squarely confronts the issue, the reviewing court has said BWS evidence is admissible, though some cases expressly require that the circumstances of the charged offense be reconcilable with a finding of self-defense.
(5) Appellant has found no out-of-state case which limits the admissibility of BWS evidence in the manner in which California limits it–i.e., by deeming it admissible to show imperfect self-defense, but categorically inadmissible to show perfect self-defense. By contrast, appellant has found numerous out-of-state cases which permit the use of BWS evidence to show complete self-defense. [Footnote 7] Many of those cases indicate the state in question uses a subjective standard of reasonableness, while the others indicate the state in question uses a part-objective, part-subjective standard–much as this Court did in People v. Moore and People v. Ochoa (see pp. 28-30, ante).
(6) The New Jersey Supreme Court, in a case which several other states’ courts have cited approvingly, has adopted the same two-part rule appellant advocates ante at p. 31. In that case, New Jersey’s high court held as follows:
We . . . 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. . . .
………………………………………..
. . . [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 the battered wife. . .is particularly accurately the likely extent of attack on her. That conclusion affect the jury’s evaluation of defendant’s fear for her life. (State v. Kelly, supra, 478 A.2d at 377-378.)
Appellant recognizes, of course, that none of the foregoing out-of-state authorities is binding on this Court. They are, however, persuasive authorities which are entitled to due consideration. When considered in conjunction with the California authorities discussed ante at pp. 28-30, they provide a compelling reason for this Court to disapprove the holdings in Aris, Day and the present case. Appellant again respectfully asks this Court to do so.
E. Prejudice
Finally, there is the issue of prejudice. Appellant feels the instructional error in question was of federal constitutional magnitude for two reasons–first, because it violated appellant’s Sixth and Fourteenth Amendment right to present a defense (see, e.g., United States v. Unruh (9th Cir., 1987) 855 F.2d 1363, 1372; and United States v. Escobar de Bright (9th Cir., 1984) 742 F.2d 1196, 1201-1202); and second, because it violated appellant’s Fourteenth Amendment right to equal protection (State v. Wanrow (Wash., 1977) 559 P.2d 548). [Footnote 8] Reversal is thus required unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
In any event, whatever standard of prejudice applies, the record shows the error in question was prejudicial. As set forth ante at pp. 5-9, the evidence as to the shooting itself and the events immediately preceding it was easily reconcilable with a finding of self-defense. Additionally, as set forth ante at pp. 19-22, the testimony of Ms. H.G., Ms. M.H., Mr. D.B., Mrs. Doe and appellant indicated that decedent became increasingly dangerous to appellant in the final days of his life–i.e., after he got off parole–and that appellant recognized as much. Indeed, BWS expert Bowker opined that upon seeing the acceleration in decedent’s violence and death threats, appellant “felt for the first time that he really intended to [kill her] . . . .” (RT 338; see RT 332-338 generally.)
In light of these portions of the record, and in light of Dr. Bowker’s testimony that a battered woman is especially sensitive to accelerations in her mate’s abusiveness and the danger such accelerations portend” a properly instructed jury could easily have found appellant reasonably feared grave, imminent harm when she shot decedent–even if a woman without appellant’s knowledge of decedent would not have had such a fear. Because of the improper limiting instruction, however, the jury was not permitted to consider any portion of Bowker’s BWS testimony in resolving the objective reasonableness issue. Because Bowker’s testimony was so important to this issue, and because the jury clearly convicted appellant under a theory of imperfect self-defense rather than a heat-of-passion theory (see p. 23, ante), it is reasonably probable–indeed, highly likely–that the limiting instruction kept the jury from finding appellant killed decedent in self-defense.
Accordingly, under any standard of prejudice, the instructional error in the case at bar must be considered prejudicial. Appellant respectfully asks that this Court reverse the judgment against her in its entirety.
CONCLUSION
For the reasons set forth in this brief, appellant requests that this Court reverse the Fifth Appellate District’s holding and, along with it, her manslaughter conviction.
DATED: August 25, 1995
Respectfully submitted,
JIM FAHEY
State Bar #122029
P.O. Box 4956
Arcata, CA 95521-1956
Telephone: (707) 822-5776
Attorney for Appellant by
Appointment of the California supreme court
OPENING BRIEF FOOTNOTES [Footnotes 1-10]:
Footnote 1: This statement of facts is, in all meaningful respects, identical to the one set forth in appellant’s petition for review.
Footnote 2: Much of the BWS evidence was also relevant to the self-defense issue, since evidence relating to decedent’s countless prior threats and acts of violence was obviously relevant to the question of whether appellant had an honest, reasonable fear of imminent death or great bodily injury when she killed decedent. To avoid redundancy, however, appellant will wait until the “Argument” section to discuss the evidence concerning decedent’s past abusive behavior and its effect upon her.
Footnote 3: Bowker noted that the “good times” in such a relationship can be extremely addictive, since intermittent reinforcement is stronger than constant reinforcement. (RT 330.)
Footnote 4: The appellate court also cited Penal Code sections 25 and 28 in support of its holding in the present case. (Opinion, p. 9.) Those statutes are wholly irrelevant, however, as they deal with diminished capacity defenses, whereas the present case concerns a battered woman’s heightened capacity to foretell when her abuser is about to engage in acts of severe violence.
Footnote 5: This document will hereinafter be referred to as “Natl. Cl.Rprt.”
Footnote 6: See, e.g., State v. Nunn (Iowa, 1984) 356 N.W.2d 601, 604; Commonwealth v. Grimshaw (Mass., 1992) 590 N.E.2d 681, 682; State v. Jackson (Neb., 1989) 435 N.W.2d 893, 895; Larson v. State (Nev., 1988) 766 P.2d 261, 262-263; State v. Leaphart (Tenn., 1983) 673 S.W.2d 870, 872.
Footnote 7: See Ibn-Tamas v. United States (D.C., 1979) 407 A.2d 626, 639; Terry v. State (Fla., 1985) 467 So.2d 761, 763-764; Chapman v. State (Ga., 1989) 367 S.E.2d 541, opinion after remand, 386 S.E.2d 129; State v. Stewart (Kans., 1988) 763 P.2d 572, 577; State v. Anaya (Maine, 1981) 438 A.2d 892, 894; Banks v. State (Md., 1992) 608 A.2d 1249, 1253; People v. Wilson (Mich., 1992) 487 N.W.2d 822, 825; State v. Hennum (Minn., 1989) 441 N.W.2d 793, 798; Lentz v. State (Miss., 1992) 604 So.2d 243, 246-247; State v. Williams (Mo., 1990) 787 S.W.2d 308, 310-313; State v. Kelly (N.J., 1984) 478 A.2d 364, 375-378; People v. Torres (N.Y., 1985) 488 N.Y.S.2d 358, 360-362; State v. Leidholm (N.D., 1983) 334 N.W.2d 811, 819-820; State v. Koss (Ohio, 1990) 551 N.E.2d 970, 973-975; Bechtel v. State (Okl., 1992) 840 P.2d 1, 6; Commonwealth v. Stonehouse (Pa., 1989) 555 A.2d 772, 781-782; State v. Hill (S.Car., 1986) 339 S.E.2d 121; Fielder v. State (Tex., 1988) 756 S.W.2d 309, 318-321; State v. Allery (Wash., 1984) 682 P.2d 312.
Footnote 8: In Wanrow, the court found an equal protection violation because the instructions deprived the defendant of her right to have her self-defense claim assessed from a woman’s perspective. (Id., at 558-559.) In a very real sense, the same thing happened here, as the error caused the jury to use the male-oriented concept of a reasonable person in the abstract (formerly referred to as a reasonable man in the abstract), rather than the concept of a reasonable person with appellant’s experiences as a battered woman.
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JANE DOE,
Defendant and Appellant.
___________________________________________/
APPELLANT’S REPLY BRIEF ON THE MERITS
I. Introduction
In Appellant’s Brief on the Merits (“ABM”), appellant argued that in view of existing California law, other jurisdictions’ laws and relevant literature, expert testimony on Battered Woman Syndrome (“BWS”) is relevant to the objective reasonable-ness component of a self-defense claim. (ABM 24-35.) Appellant further argued the trial court in her case prejudicially erred when it told the jury Dr. Bowker’s expert testimony could not be considered for such a purpose. (ABM 35-37.)
In respondent’s brief (“RBM”), respondent answers with a somewhat different discussion of California law and a radically different discussion of other jurisdictions’ laws, as well as a harmless error argument. Appellant will deal with these aspects of respondent’s brief in sections IV through VI, infra. First, however, appellant wishes to address two other aspects of respondent’s brief, namely respondent’s characterization of appellant’s argument and respondent’s discussion of such subjects as “urban psychosis evidence” and the Bernhard Goetz case.
II. Respondent’s characterization of appellant’s argument
At one point, respondent calls appellant’s position a “proposal[] for a completely subjective standard.” (RBM 25.) This characterization is false. Appellant’s position is the same one adopted by the New Jersey Supreme Court in State v. Kelly (1984) 478 A.2d 364, 378–i.e., that a BWS expert’s testimony may, depending on its content and the facts of the case, tend to establish objective reasonableness by showing the defendant had a heightened ability to discern two things: (1) when her abuser was about to become violent with her; and (2) how bad the violence was likely to be. (ABM 24-31.) Appellant contends, as did the court in Kelly, that such testimony can be highly probative of objective reasonableness, since it may show that a reasonable person in the defendant’s situation–i.e., one who knew what the defendant knew about her abuser’s volcanic mood swings and the subtle signs which preceded them–would have feared imminent death or grave injury at the time of the killing. [Footnote 11] (ABM 24-31.) In no way, then, can appellant’s position be called a “proposal[] for a completely subjective standard.” (RBM 25.)
At another point in respondent’s brief, respondent offers the following characterization of appellant’s position:
[Author Holly] Maguigan argues that the “correct standard [of reasonableness]” is one which “uses a combination of subjective and objective analyses to aid the jury’s determination the defendant actually and honestly believed in the necessity of using excessive force, and whether a reasonable person in defendant’s circumstances–including her history with the decedent and her perceptions of his dangerousness–would so believe” This is also the standard being advocated by appellant. (RBM 12; italics deleted, underlining added.)
The above passage constitutes another mischaracteriza-tion of appellant’s position. Indeed, the subject of excessive force is irrelevant here, since it is appellant’s position that decedent was lethally dangerous at the moment of his death and that appellant–as an expert on decedent’s words, actions and mannerisms, and the dangers they portended–was particularly able to recognize as much.
III. Respondent’s discussion of Bernhard Goetz, etc.
At various places in respondent’s brief, respondent invokes such subjects as Bernhard Goetz, the Wyoming Supreme Court’s anti-vigilantism prose in Jahnke v. State (1984) 682 P.2d 991, “urban psychosis” evidence, “reasonable gang member” evidence, Holocaust Survivors’ Syndrome and diminished capacity defenses in general. (RBM 13-15, 25, 43-46.)
The above subjects are irrelevant to the present case. Appellant is not asking this Court to sanction the extermination of repugnant individuals, nor to recognize a diminished capacity defense, nor to do anything which will pave the way for all sorts of creative quasi-psychological defenses. Rather, appellant is asking this Court to disapprove a maverick rule–one which provides that even though a battered woman has a heightened ability to tell when her abuser is especially dangerous, [Footnote 12] her ability is irrelevant to the question of what sort of danger a reasonable person in her position would have feared. Since this heightened power of discernment is obviously not a psychosis, much less a matter of diminished capacity, respondent’s invocation of the above topics is irrelevant and unavailing.
The subject of Holocaust Survivors’ Syndrome merits additional comment, for purposes of contrasting it to BWS. Holocaust Survivors’ Syndrome afflicts people who experienced an unspeakably horrible ordeal 50 years ago. The battered woman’s ordeal, however, usually persists for as long as the abuser is a part of her life. Hence, in the context of what respondent correctly refers to as “confrontational killings” (RBM 10), BWS is not so much a form of Post-Traumatic Stress Disorder as it is a condition relating to an ongoing trauma. Indeed, as portions of Dr. Bowker’s testimony in the instant case suggest, the very expression “Battered Woman Syndrome” often refers not so much to mental illness on the woman’s part, but rather to the deranged things which the batterer does to her. (RT 279-283.) Hence, many of the women who suffer from what is termed “Battered Woman Syndrome” are not mentally ill at all, but rather are normal people reacting in a normal manner to an insane environment of threats, violence, captivity and psychological torture. [Footnote 13]
IV. Respondent’s discussion of California law
In ABM, appellant explained that California uses a reasonable-person-in-the-defendant’s-position standard, rather than a reasonable-person-in-a-vacuum standard. (ABM 28-31; see People v. Moore (1954) 43 Cal.2d 517, 528; People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664; People v. Pena (1984) 151 Cal.App.3d 462, 475; People v. Bush (1978) 84 Cal.App.3d 294, 302-304.) Appellant further explained that in view of this standard, and in view of Dr. Bowker’s testimony that a battered woman is keenly sensitive to signs of escalating danger, the limiting instruction in the present case was erroneous.
(ABM 28-31.)
In replying to the above argument, respondent acknowledges that California uses a reasonable-person-in-the-defendant’s-position standard. (RBM 12-13, 15.) Respondent further acknowledges that a defendant’s subjective knowledge of the decedent’s past abusiveness, including threats and acts of violence, is relevant to the issue of what an objectively reasonable person in the defendant’s position would have feared at the time of the killing. (RBM 12-13, 15.) Having thus acknowledged, respondent then goes on to contend the limiting instruction in the present case was nonetheless correct for the following reasons: (1) A defendant’s subjective perceptions cannot be considered in resolving the objective reasonableness issue, for to do so would contravene Penal Code section 198 by creating a wholly subjective standard of reasonableness (RBM 12-13); (2) such an approach would also violate Proposition Eight’s limitation on evidence of mental disease and defect (RBM 24-25); and (3) there is no need for expert testimony on a battered woman’s hypervigilance, since common sense indicates a battered woman will be quicker to recognize her abuser’s signals of escalating danger than a stranger would be (RB 19).
None of respondent’s contentions has merit. As to the first contention, appellant has already demonstrated, in ABM and again at page two, supra, that she is not advocating a subjective standard of reasonableness. Moreover, respondent does not offer, and logical analysis does not reveal, any rational distinction between: (1) evidence of a defendant’s awareness that her abuser had previously threatened her and beaten her; and (2) evidence of a defendant’s awareness that subtle changes in her abuser’s demeanor, such as the ones described in the authorities cited at pp. 25-26 of ABM, indicated especially severe violence was imminent. If the former type of subjective awareness is relevant to show objective reasonableness, it perforce follows that the latter type is similarly.
As to respondent’s second contention, appellant has already explained, in ABM and again at pp. 2-4, supra, that the subjects of mental disease, mental defect and diminished capacity are irrelevant to this appeal. This is still true. [Footnote 14]
Finally, there is respondent’s bald and imperscriptible assertion that expert testimony on hypervigilance is unnecessary, since common sense indicates a battered woman will be better able to recognize her abuser’s signals of escalating danger than a stranger would be. (RB 19.) This contention fails for two reasons. First, it fails because it is unsupported by reasoned analysis or citation to any authority, making it undeserving of serious consideration. (People v. Callegri (1984) 154 Cal.App.3d 856, 865; People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) Second (and more important), it fails because it is manifestly wrong. Simply stated, the average juror has never lived in a state of siege, much less does he/she have any experience with such things as the tripartite cycle of domestic violence, the fact an abuser gives off abstruse signals when an explosion is imminent, and the fact battered women learn to be hypervigilant in watching for these signals. Hence, the subject in question is clearly beyond the common experience of the average juror, and is precisely the sort of thing which calls for expert testimony. (Evidence Code section 801; People v. Stoll (1989) 49 Cal.3d 1136, 1153-1154; People v. McDonald (1984) 37 Cal.3d 351, 367.)
V. Respondent’s discussion of other jurisdictions’ laws
In ABM, appellant noted she had found no other juris-diction which imposes an absolute ban on the use of BWS evidence to establish perfect self-defense–i.e., to show the defendant’s fear of grave harm was reasonable. (ABM 33-34.) Respondent now offers a discussion of the law in approximately two dozen other jurisdictions, but cites no out-of-state case anywhere which imposes an absolute ban on the use of BWS evidence to show reasonableness. (RBM 25-43.) Instead, respondent offers an analysis of the law in these other jurisdictions. (RBM 25-43.)
Due to the 15-page length limitation which Rule of Court 29.3 imposes on this brief, appellant cannot make the sort of detailed reply which respondent’s analysis warrants. Appellant does, however, wish to offer these observations about the jurisdictions discussed by respondent:
As to Pennsylvania, respondent recognizes that in Commonwealth v. Stonehouse (1989) 555 A.2d 772, the Pennsylvania Supreme Court held BWS evidence relevant to show reasonableness. (RBM 31.) Respondent then asserts that in Commonwealth v. Dillon (1991) 598 A.2d 963, a “majority of the court withdrew its apparent endorsement in Stonehouse of applying BWS evidence to the reasonableness standard.” (RBM 31.) Respondent’s assertion is false, as the majority opinion in Dillon does not address the admissibility of BWS evidence to show reasonableness, nor indeed does it discuss Stonehouse at all. Hence, it is no surprise a lower court’s post-Dillon decision followed Stonehouse on this point. (Commonwealth v. Miller (1993) 634 A.2d 614.)
As to New Jersey, respondent acknowledges the state’s supreme court held BWS evidence admissible to show reasonableness in State v. Kelly, supra, 478 A.2d 364. (RB 27.) Respondent then asserts that Kelly was later “clarified”–i.e., nullified–on this point by an appellate division of a superior court, in State v. McClain (1991) 591 A.2d 652, 657. (RBM 27-28.) Respondent’s assertion fails for three reasons. First, it fails because a superior court cannot nullify the prior unambiguous holding of a state supreme court. Second, it fails because McClain itself was later rejected by another court on the ground it misread Kelly. (State v. Vigilante (1992) 608 A.2d 425, 430.) Finally, it fails because McClain involved issues of provocation and passion, not self-defense and reasonableness.
As to New York, respondent acknowledges People v. Torres (1985) 488 N.Y.S.2d 358, but suggests the holding in that case only approved the use of BWS evidence to establish the defendant’s subjective fear. (RBM 28.) In reality, Torres expressly ruled that BWS evidence is “relevant to the jury’s evaluation of the reasonableness of [the woman’s] perceptions and behavior….” (Id., at 362, emphasis added.)
As to Wisconsin, respondent cites State v. Richardson (1994) 525 N.W.2d 378 and asserts as follows: “Wisconsin has… recently held that the reasonableness of the defendant’s belief is not a subject for expert opinion.” (RBM 37-38.) Respondent’s assertion is literally correct, in that Richardson forbids a BWS expert to give an opinion on the ultimate issue of whether the defendant’s fear was reasonable. (Id., at 383.) What respondent fails to note, however, is that Richardson also says expert testimony on BWS is relevant because it enables a jury to assess whether the defendant’s perception of imminent danger was reasonable. (Id., at 382; see also id., at 381.)
As to Maryland, respondent appears to say the holding in Banks v. State (1992) 608 A.2d 1249 did not approve the use of BWS evidence to show reasonableness. (RBM 40.) As respondent’s own quotes from Banks show, however, the court therein indicated that under Maryland law, BWS evidence is admissible to show the reasonableness of the defendant’s fear, as well as its honesty. (Id., at 1253; see RBM 40.)
As to North Dakota, respondent apparently recognizes it has taken a position consistent with appellant’s, but says that it uses a “purely subjective standard for determining whether a homicide is justifiable.” (RBM 43.) In reality, North Dakota requires a jury to decide not only whether the defendant believed lethal force was necessary, but also whether the defendant had reasonable ground for such a belief. (State v. Leidholm (1983) 334 N.W.2d 811.)
As to Washington, respondent notes that it has taken a part-subjective, part-objective approach to the question of reasonableness. (RB 29-30.) Respondent fails to note, however, that Washington courts have said BWS evidence is relevant to the reasonableness issue. (State v. Allery (1984) 682 P.2d 312, 316; see also State v. Janes (1993) 850 P.2d 495, 505; State v. Kelly (1984) 685 P.2d 564, 570.)
As to Florida, respondent suggests its courts have issued confused holdings on the permissible uses of BWS evidence. (RB 33.) In reality, Florida’s courts have made it clear BWS evidence is admissible to show reasonableness. (Terry v. State (1985) 467 So.2d 761, 763; Hawthorne v. State (1982) 408 So.2d 801, 806-807.)
As to Minnesota, respondent suggests its courts, too, may be confused on the proper use of BWS evidence. (RBM 37.) There is nothing confusing, however, about State v. Hennum (1989) 441 N.W.2d 793, 798, wherein the court expressly agreed with other states which had held BWS evidence relevant to show, among other things, the reasonableness of the defendant’s fear.
As to Kansas, respondent appears to recognize that it has approved the use of BWS evidence to show reasonableness. (RBM 40-41.) Respondent is correct in so recognizing. (State v. Stewart (1988) 763 P.2d 572, 579.)
As to Missouri, Oklahoma and South Dakota, respondent likewise appears to recognize those states have taken a position contrary to that of California’s appellate courts. (RBM 41-43.) While those states may, as respondent urges, use a more heavily subjective standard of reasonableness than California does, this does not change the fact that they, too, would disapprove an instruction which categorically precludes use of BWS to show reasonableness. [Footnote 15] (State v. Williams (Mo., 1990) 787 S.W.2d 308; Bechtel v. State (Okl., 1992) 840 P.2d 1; State v. Burtzlaff (S.D., 1992) 493 N.W.2d 1.)
As to Texas, in Fielder v. State (1988) 756 S.W.2d 309, 319, the main issue was the reasonableness of the defendant’s fear of deadly force. Careful reading of the state supreme court’s opinion shows the court ruled BWS evidence admissible on the reasonableness issue. (Id., at 318-321, especially p. 320.)
As to South Carolina, Georgia, Maine, the District of Columbia and New Mexico (see RBM 32 et seq), those jurisdictions have said BWS evidence is relevant to establish self-defense. (State v. Hill (S.Car., 1986) 339 S.E.2d 121; see also Robinson v. State (S.Car., 1992) 417 S.E.2d 88, 91; Chapman v. State (Ga., 1989) 367 S.E.2d 541, opinion after remand, 386 S.E.2d 129; State v. Anaya (Me., 1981) 438 A.2d 892, 894; Ibn-Tamas v. United States (D.C., 1979) 407 A.2d 626, 639; State v. Gallegos (N.M., 1986) 719 P.2d 1268.) While this is not exactly the same thing as directly saying BWS evidence is admissible to establish reasonableness, it is functionally the same, for if BWS evidence is only admitted for the limited purpose for which California presently admits it, then it can only establish imperfect self-defense and not full self-defense.
As to Michigan, the cases cited by respondent do not preclude the use of BWS evidence to show reasonableness (RBM 37), and the second of respondent’s cases, People v. Wilson (1992) 487 N.W.2d 822, 825, appears to sanction the use of BWS evidence to establish self-defense.
As to Mississippi, the court said in Lentz v. State (1992) 604 So.2d 243, 246-247, that BWS evidence was irrelevant on the facts of that case. Implicit in this holding is a recognition that with a proper evidentiary basis, BWS evidence would be relevant to show self-defense.
As to Illinois, the case cited by respondent does not say whether BWS evidence is admissible to show reasonableness. (People v. Scott (1981) 424 N.E.2d 70; RBM 36.) Appellant has found no Illinois case which does resolve this question.
As to Ohio, appellant has found no case which decides whether BWS evidence is admissible to show reasonableness.
Hence, the relevant authorities in the jurisdictions discussed by respondent are anything but supportive of respond-ent’s cause. Indeed, as set forth above, they show just how maverick a position California’s appellate courts have taken on the use of BWS evidence to show reasonableness, and thus provide another compelling reason for this Court to reverse the judgment against appellant.
VI. Prejudice
Respondent finally argues that even if the limiting instruction was improper, the error was harmless under People v. Watson (1956) 46 Cal.2d 818. (RBM 46-48.) More specifically, respondent argues as follows: The jury heard extensive testimony on BWS, both in general and as it applied to appellant (RBM 47); the jury heard extensive evidence of decedent’s past violence, including the fact he shot at appellant the day before his death (RBM 47); the jury heard Dr. Bowker’s testimony on hypervigilance (RBM 48); and the jury was given numerous instructions on self-defense, antecedent threats, etc. (RBM 48).
Respondent’s harmless error argument fails for two reasons. First, it fails because the error in question must, for reasons set forth in ABM and not addressed by respondent, be assessed under Chapman v. California (1967) 386 U.S. 18, 24, and not under the more forgiving standard of prejudice set forth in Watson. (See ABM 35-36.) Second (and more important), it fails because neither the evidence of self-defense nor the standard instructions on self-defense could neutralize the harm caused by the limiting instruction, which forbade the jury to consider Dr. Bowker’s BWS evidence in resolving the reasonableness issue. This Court must assume that the jury followed the limiting instruction, and thus that it disregarded Dr. Bowker’s testimony about a battered woman’s heightened ability to detect grave imminent violence, when it resolved the reasonableness issue against appellant. (People v. Hardy (1992) 2 Cal.4th 86, 208.) In light of this fact, there is simply no way the erroneous instruction may be dismissed as harmless. The judgment against appellant must be reversed.
CONCLUSION
Accordingly, for all the reasons set forth herein, appellant respectfully asks that this Court reject respondent’s arguments and reverse the judgment against her.
DATED: December 28, 1995
Respectfully submitted,
JIM FAHEY
State Bar #122029
P.O. Box 4956
Arcata, CA 95521-1956
Telephone: (707) 822-5776
Attorney for Appellant by
Appointment of the Supreme
Court under the Central
California Appellate Program’s
Independent Case System
REPLY BRIEF FOOTNOTES [Footnote 11-15]:
Footnote 11: Appellant’s Brief on the Merits suggests such evidence cannot establish objective reasonableness unless the battered woman accurately anticipated imminent death or grave injury. (ABM 31.) This suggestion is incorrect, since an honest and objectively reasonable belief in grave imminent peril is sufficient to justify the use of deadly force, whether such peril actually exists or not. (CALJIC No. 5.51; 1 Witkin & Epstein, “California Criminal Law” (2nd ed.), section 241.)
Footnote 12: Significantly, respondent does not dispute–and, indeed, appears to recognize–that a battered woman has such an ability. (RBM 19; see discussion infra.)
Footnote 13: See Mary Ann Dutton, “Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome,” 21 Hofstra Law Review 1191, 1196-1211, 1215-1226; see also Martha R. Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation,” 90 Michigan Law Review 1, 4-7, 24-43, 93-94; see also Dr. Bowker’s testimony at RT 282-283.
Footnote 14: Respondent’s argument appears to be based on the belief that all women who have what is known as BWS are mentally ill or defective. As indicated supra at pp. 4-5, this belief is widespread but erroneous.
Footnote 15: Respondent says that because Missouri has a statute which restricts BWS testimony to the issue of reasonableness, Missouri “apparently” does not allow BWS testimony to explain hypervigil-ance. (RBM 41-42, n. 39.) Since testimony about a battered woman’s hypervigilance is, for all the reasons set forth herein and in ABM, potentially crucial to the reasonableness issue, respondent’s bald statement is contradictory on its face.
