Brief Bank # B-661 (Re: F 5.32 n2 [Defense Of Others Applies To Fetus].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA, )
Plaintiff and Respondent, ) Appeal #FO00000
v. ) Tuolumne County
) Superior Court
JANE DOE, ) No. CR 0000
Defendant and Appellant. )
APPEAL FROM THE JUDGMENT OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA FOR THE
COUNTY OF TUOLUMNE
Honorable William Polley, Presiding
APPELLANT’S OPENING BRIEF
State Bar #122029
P.O. Box 4956
Arcata, CA 95521-1956
Telephone: (707) 822-5776
Attorney for Appellant by
Appointment of the Court of
Appeal under the Central
California Appellate Program’s
Independent Case System
THE COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO GIVE CALJIC No. 5.32 SUA SPONTE.
In Sections B through D of this argument, appellant will explain that the trial court prejudicially erred by failing to give CALJIC No. 5.32 sua sponte. In Section B, appellant will discuss the general principles of law relevant to this argument; in Section C, appellant will apply those principles to the facts of this case and show that the court’s failure to give CALJIC No. 5.32 was erroneous; in Section D, appellant will explain that the error entitles her to a reversal of her conviction.
B. General principles of law
Under California case law and the Sixth and Fourteenth Amendments to the United States Constitution, the trial court in a criminal case is required to instruct, sua sponte if necessary, on any affirmative defense which is supported by the evidence. (People v. Marquez (1992) 1 Cal.4th 553, 581; People v. Stewart (1976) 16 Cal.3d 133, 140; People v. Sedeno (1974) 10 Cal.3d 703, 716; People v. Lemus (1988) 203 Cal.App.3d 470, 475-478; United States v. Unruh (9th Cir. 1987) 855 F.2d 1363, 1372; Bennett v. Scroggy (6th Cir. 1986) 793 F.2d 772, 777-779; United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202.)
The affirmative defenses recognized in California and most other jurisdictions include, among others, self-defense, entrapment, unconsciousness, necessity and the defense of others. (See Witkin, “California Criminal Law” (2nd Ed., 1988), Sections 186-213.) It is the lattermost defense which is relevant here.
In California, an individual is justified in using whatever force he/she reasonably believes is necessary to protect a third party from physical harm. (Penal Code sections 197, subdivisions (1) and (3), and 692-694; People v. Uriarte (1990) 223 Cal.App.3d 192, 197; People v. Pena (1983) 149 Cal.App.3d Supp. 14, 25; Witkin, “California Criminal Law” (2nd Edition, 1988), section 247.) Hence, a person may lawfully use deadly force if he/she honestly and reasonably believes such force is necessary to protect a third party from death or great bodily injury. (Penal Code section 197, subdivision (3); 1 Witkin & Epstein, “California Criminal Law (2nd Ed., 1988), sections 239 and 241-242; People v. Uriarte, supra, 223 Cal.App.3d at 197.) If, on the other hand, a person kills out of an honest but unreasonable belief that deadly force is needed to protect a third party from death or great bodily injury, he/she is guilty of voluntary manslaughter. (Ibid.)
From the foregoing authorities, it is clear the defense-of-others defense is an affirmative one upon which California trial courts must instruct, sua sponte if necessary, whenever the evidence so warrants. The standard jury instruction which the CALJIC Committee has created for this purpose is CALJIC No. 5.32. It provides as follows:
It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon ______ to protect that individual from attack.
In doing so, [he][she] may use all force and means which such person believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent. (CALJIC No. 5.32, 5th Edition.)
Not insignificantly, federal law also requires the giving of a defense-of-others instruction whenever there is some evidence, however strong or weak, to support such an instruction. (Jones v. United States (D.C.App. 1989) 555 A.2d 1024, 1027.) If a federal court fails to fulfill this requirement, the error is necessarily prejudicial. (Ibid.)
C. Application of relevant law to facts of this case
In the present case, it was undisputed that Ms. R was pregnant at the time of the fatal confrontation. Doctor Renwick and Ms. R so testified, and the prosecutor so acknowledged in his opening statement. [Footnote 1] (RT 130, 390, 1032.)
Defense counsel made it clear, as early as his opening statement, that Ms. R’s pregnancy would be a significant piece of evidence. After noting Ms. R was three to four months pregnant at the time of the stabbing, counsel told the jurors that the evidence would show decedent’s irrational behavior caused Ms. R to fear not only for her own safety, but also for that of her fetus. (RT 137-139.) Counsel also told the jurors that when they had heard all the evidence, they would know Ms. R “was only protecting and defending herself and her baby when this tragic, terrible, horrible event took place.” (RT 143-144, emphasis added.)
Ms. R’s testimony was consistent with defense counsel’s opening statement. In testifying about the fact she armed herself with a knife prior to the fatal confrontation, Ms. R explained, “I’m pregnant, I’m not going to take any chances.” (RT 1032.) Later on, when the prosecutor questioned Ms. R about her state of mind at the time of the stabbing, the following colloquy occurred:
Q: You didn’t think Mr. S was going to kill you every time he used meth, did you?
A: It’s debatable.
Q: It’s debatable, okay. Well, going back to August, you didn’t think that every time he used meth that you were going to die, did you?
A: I don’t understand. What do you mean by going back to August?
Q: Well, how did you feel in August?
A: I don’t understand. (Shakes head.)
Q: Well, every time Mr. S used meth, and you said you thought he was using it in Sacramento just about every day, or regularly, from what you saw, right?
A: I didn’t see anything, I just thought.
Q: From what you saw of his behavior?
A: Yeah. At times, yeah.
Q: You thought he was using a lot of meth?
A: From what people said, yeah.
Q: From what people said. And you didn’t think every time that happened that you were going to die, did you?
A: No. But I didn’t hold what people said to heart. And his actions, when he was sober, he was very polite, very nice; he was great. But when he got loaded, he seemed to get extremely agitated, angry a lot. But I think it was when he was extremely high, but I’m not positive.
Q: Okay. But on the night of August 20th, you weren’t going to take any chances at all with Mr. S, were you?
A: I don’t understand.
Q: Well, you had your knife, you were going to stab him if he even came close to you, is that true? That’s what you told him?
A: If he kept badgering me, yes.
Q: If he kept badgering you, you were going to stab him?
A: Yes. That’s what I told him.
Q: That’s what you had told him, that was your state of mind?
A: I didn’t want to get hit again. I didn’t want to lose the baby. (RT 1081-1082, emphasis added.)
Prosecution evidence further established that Ms. R was concerned for her fetus’s safety at the time of the confrontation. Specifically, the prosecutor introduced transcripts of two taped interviews Detective Keith Lunney conducted with Ms. R on the night in question. The first transcript, People’s Exhibit 59, showed that when Lunney asked Ms. R if she had been afraid of decedent that evening, Ms. R responded, “Yeah, I’m pregnant. I’m not going to let anyone get close to me.” [Footnote 2] The second transcript, People’s Exhibit 60, showed that the following colloquy subsequently occurred between Lunney and Ms. R:
KL: Okay, Jane, I’m going to ask you a real important question here. Why did you stab him?
JD: Because he was going to kill me and wouldn’t let me (unintelligible-crying) call the police. He would have done something, anything (unintelligible-crying). And he wasn’t in the right frame of mine. He wasn’t normal. He was drunk or high, sick. He wasn’t Mr. S.
KL: You thought he was going to kill you?
JD: (Unintelligible-crying) anything, I didn’t care. I don’t care. I’m pregnant and I don’t want my baby dead, I don’t want to die. I don’t want him to die either. (Unintelligible-crying) wanted him to stop. [Footnote 3]
Hence, there was substantial evidence to show Ms. R feared for the life of her fetus at the time of the fatal confrontation. As detailed ante in the Statement of Facts, there was also a great deal of evidence to show it was reasonable for Ms. R to fear decedent. Doctors Beaver and Pittel gave uncontroverted testimony establishing that decedent had a very high–indeed, preposterously high–level of methamphetamine in his bloodstream at the time of the confrontation, and that prolonged usage of methamphetamine can cause psychosis and will cause paranoia. (RT 471-476, 584-610.) Doctor Burstein testified as to the various forms of abuse Ms. R had reportedly experienced and said that, in his opinion, there was no doubt Ms. R suffered from classical symptoms of Battered Woman Syndrome. (See discussion at pp. 11-12, ante; see especially RT 822.) Nurse Evans testified that when she saw Ms. R in July of 1993 (i.e., during Ms. R’s relationship with decedent), Ms. R had bruises on her face. (RT 735-736.) Director Nicholas Cannis of Teen Challenge likewise testified that when he saw decedent and Ms. R in July of 1993, Ms. R had bruises on her arm and face; Cannis further testified that decedent seemed like a good man with a great deal of anger in him. (RT 748-756.)
People who knew them further established how reasonable it was for Ms. R to fear decedent. Mr. W testified that during the course of Ms. R’s relationship with decedent, he saw a choke-type bruise on Ms. R’s neck and a softball-sized bruise on her arm; Mr. W further testified decedent admitted having struck Ms. R on two prior occasions. (RT 649-654.) Ms. V likewise testified that she saw bruises on Ms. R’s eye, face, nose, arms and legs during Ms. R’s relationship with decedent, and that decedent admitted having struck Ms. R on a number of occasions. (RT 667-670.) Ms. D testified that on one occasion during Ms. R’s relationship with decedent, she saw bruises all over Ms. R’s arms and legs. (RT 685-687.) Ms. A testified that on one occasion during Ms. R’s relationship with decedent, she went to visit Ms. R and found that Ms. R was lying in bed, unable or unwilling to turn and face her; Ms. R told Alley she had hurt her back on the previous evening and had gone to the hospital. (RT 707713.)
As for the night of the stabbing, two prosecution eyewitnesses gave testimony which suggested it had been reasonable for Ms. R to fear violence, perhaps serious violence, from decedent that night. Ms. B testified that when she heard decedent and Ms. R screaming at each other in the parking lot, shortly before the stabbing, Ms. R: (1) told decedent to get away from her; (2) twice attempted to push decedent away from her; and (3) twice attempted to walk away from decedent, who yelled at her and followed her around the building, out of Ms. B’s sight. (RT 180-190.) Mr. A similarly testified that when he heard Ms. R and decedent arguing in the parking lot, he: (1) heard Ms. R tell decedent to leave her alone; (2) heard a slapping sound; and (3) saw decedent follow Ms. R until they disappeared from his view. (RT 223-228, 239-230.)
In sum, a good deal of evidence suggested that at the time of the fatal confrontation, Ms. R could reasonably have feared that decedent was about to become violent, perhaps seriously violent, and that the violence would result in harm to her fetus, as well as herself. In spite of this evidence, however, the trial court did not give CALJIC No. 5.32 or any other instruction concerning Ms. R’s right to defend her fetus. The question to be answered herein is whether the trial court’s failure to so instruct was justified, given the fact that, at three months of age, Ms. R’s fetus was not yet viable.
The answer to this question may be found in our Supreme Court’s recent holding in People v. Davis (1994) 7 Cal.4th 797. In Davis, the defendant shot a pregnant woman in the chest, causing the death of her fetus. (Id., at 800-801.) The fetus was probably not yet viable at the time of its death. (Id., at 801.) Our Supreme Court, however, held that for purposes of California’s murder statute (Penal Code section 187), the killing of a fetus is murder whether the fetus is viable or not. (Id., at 802-810.)
In view of our Supreme Court’s holding in Davis, it is clear that at the time of the fatal confrontation, Ms. R’s fetus had same right not to be killed or seriously injured by decedent that Ms. R or any other person would have had. It thus perforce follows that at the time of the fatal confrontation, Ms. R was entitled to protect her fetus from a reasonably perceived threat of death or great bodily injury–just as she would have been entitled to so protect any other individual.
Significantly, federal law is consistent with this conclusion. In Graves v. United States (D.C. App. 1989) 554 A.2d 1145, 1146, the decedent came to the defendant’s apartment looking for decedent’s girlfriend, who was then upstairs socializing with the defendant’s pregnant wife. Decedent told his girlfriend to accompany him home, but she told decedent she wanted to stay. (Ibid.) Decedent then decided to leave, but on the way out, he got into a loud argument with the defendant, thereby causing his girlfriend and the defendant’s wife to come down and see what the commotion was about. (Ibid.) The defendant thereafter fatally stabbed decedent. (Ibid.) The evidence was inconsistent as to how close the defendant’s pregnant wife was to him when this occurred, but some witnesses testified she was standing right next to the defendant when decedent lunged at the defendant and the defendant stabbed him. (Id., at 1146-1148.) Additional evidence was presented suggesting that at the time of the stabbing, the defendant was “unusually worried about the health of his wife and unborn child.” (Id., at 1147.) The trial court, however, refused to give instructions on the defense-of-others defense. (Ibid.)
The federal appellate court reversed. In so doing, the court noted that a defendant is entitled to an instruction on the defense of others, provided said instruction is supported by the evidence. (Id., at 1147.) The court further noted that under federal law, an individual may use whatever degree of force is reasonably necessary to protect a third party from danger as the individual reasonably perceives it. (Id., at 1147-1148, citing Fresner v. United States (D.C. 1984) 482 A.2d 387, 391-392.) The court then said that on the record before it, a properly instructed jury could have concluded that at the time of the stabbing, the defendant reasonably believed decedent posed a threat to his wife and unborn child. (Id., at 1148-1149.) Declining to “say as a matter of law that the force used by [the defendant] was excessive,” the appellate court reversed the defendant’s murder conviction because the failure to instruct on defense of others kept the jury from resolving a material issue of fact. (Id., at 1149.)
From the above-recited facts and authorities, it is clear the evidence in the present case gave the trial court a duty to instruct on the defense-of-others defense. The court’s failure to fulfill that duty was error.
D. The appropriate relief
When a trial court improperly fails to instruct on an affirmative defense, the error is prejudicial per se unless the underlying factual question was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Stewart, supra, 16 Cal.3d at 141; People v. Sedeno, supra, 10 Cal.3d at 721; People v. Lemus, supra, 203 Cal.App.3d at 478-480.)
Appellant anticipates respondent will argue that because appellant’s jury concluded the stabbing was neither perfect self-defense nor imperfect self-defense, the factual question which would have been posed by CALJIC No. 5.32 was resolved adversely to appellant. Such an argument fails for one simple reason which is supported both by common sense and by medical literature: A person can inflict death or great bodily injury on a fetus without using force sufficient to inflict death or great bodily injury on the woman who is carrying that fetus. Appellant explains:
Existing literature makes it clear that the battering of pregnant women is both prevalent and a serious problem. [Footnote 4] For instance, several authorities indicate there is little doubt but that such battering increases the risk a woman’s child, when born, will suffer from low birth weight. [Footnote 5] This is a major risk, since, as the Scandinavian Journal of Social Medicine notes, “[l]ow birth weight and preterm deliveries remain the strongest correlates of mortality and morbidity among normally-formed infants.” (Id., at 26.)
Even more dire are the following observations from an article in the Journal of the American Medical Association regarding the battering of pregnant women:
A physical … assault involving abdominal trauma can cause abruptio placentae, which, depending on the gestational age of the fetus, could lead to fetal loss or early onset of labor and the delivery of a live, low-birth-weight or preterm infant. Other consequences of abdominal trauma during pregnancy may include fetal fractures, ruptures of the mother’s uterus, liver or spleen, pelvic fractures, and antepartum hemorrhage. Additionally, trauma may cause uterine contractions, premature rupture of membranes, and infection leading to early onset of labor and possible fetal loss. Finally, the victimization of a woman may lead to the exacerbation of chronic illnesses such as hypertension, diabetes, or asthma, which may have deleterious effects on the fetus. (“Abuse of Pregnant Women and Adverse Birth Outcome,” Journal of the American Medical Association, Volume 267 (May 6, 1992), p. 2370.)
The same article notes that battering can cause elevated levels of physical and psychological stress in a pregnant woman, and that such stress can cause a variety of physiological problems for the woman’s fetus, some of them serious. (Id., at 2371.)
In sum, battering can cause a variety of major consequences, including death, for a pregnant woman’s fetus without necessarily causing death or great bodily injury to the woman herself. Hence, a pregnant woman can reasonably fear that her fetus is threatened with death or great bodily injury under circumstances which do not threaten the woman herself with such injury. For that reason, the jury’s finding that Ms. R did not kill in self-defense does not mean the same jury, if given CALJIC No. 5.32, would necessarily have concluded Ms. R did not have an honest, reasonable fear her fetus was in danger of death or great bodily injury at the time of the fatal confrontation. It thus cannot be said that the jury’s verdict shows the defense-of-others issue was resolved adversely to Ms. R under the instructions concerning self-defense.
Accordingly, the court’s failure to give CALJIC No. 5.32 was error which cannot be redeemed as harmless by virtue of other, properly given instructions. Under the foregoing authorities, this means that the court’s failure to give CALJIC No. 5.32 was necessarily prejudicial. The judgment against Ms. R must be reversed.
Footnote 1: Ms. R further testified her baby was born on February 23, 1994, which would mean she was about three months pregnant at the time of the fatal confrontation. (RT 966.)
Footnote 2: See page 13 of Exhibit 59, which appellant will have transmitted to this Court prior to oral argument.
Footnote 3: See page 14 of People’s Exhibit 60, which appellant will also have transmitted to this Court prior to oral argument. (Emphasis added.)
Footnote 4: For statistics and other details on the fact pregnant women are battered more frequently than other women, see the following sources: “Assessing for Abuse During Pregnancy,” Journal of the American Medical Association, Volume 267 (June 17, 1992), pp. 3176-3178; “The Pediatric Forum,” AJDC, Volume 143 (February, 1989), p. 137; “Battered and Pregnant: A Prevalence Study,” American Journal of Public Health, Volume 77 (1987), pp. 1337-1339; and “The Birth-Weight Battering Connection,” American Journal of Nursing (September, 1989), pp. 1153-1155.
Footnote 5: See, e.g., “The Birth-Weight/Battering Connection,” American Journal of Nursing (September, 1989), pp. 1153-1155; “Abuse of Pregnant Women and Adverse Birth Outcome,” Journal of the American Medical Association, Volume 267 (May 6, 1992), p. 2370; “Does Spousal Physical Abuse Affect the Outcome of Pregnancy,” Scandinavian Journal of Social Medicine, Volume 19 (1991), pp. 26-31.)