Brief Bank # B-954 (Re: F 9.35.1 n11 [Battered Person Syndrome: Failure To Request Pinpoint Instruction As Ineffective Assistance Of Counsel].)
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Date of Brief: September, 2002.
II. APPELLANT WAS DENIED HER STATE AND FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND COUNSEL’S OMISSION DEPRIVED APPELLANT OF HER CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW
A. Introduction
Appellant presented the testimony of Dr. Linda Barnard, Ph.D., regarding Battered Woman’s Syndrome as well as the testimony of friends and neighbors regarding Mr. H’s abuse of her, and the court instructed the jury regarding the syndrome evidence as well as both perfect and imperfect self-defense as it was required to do based on the evidence presented by both sides. What trial counsel failed to do was request an instruction regarding the role of antecedent threats and violence by the deceased on appellant’s use of deadly force. That critical omission deprived appellant of her constitutional right to effective assistance of counsel.
B. Standard of Proof for Ineffective Assistance of Counsel
This issue is appropriately raised in appellant’s direct appeal because it is impossible to conceive of a valid reason for counsel’s omission. (See People v. Mendoza-Tello (1997) 15 Cal.4th 264.) Therefore a habeas petition would add nothing to what appears in the record. The right to counsel guaranteed by the Sixth Amendment of the United States Constitution and Article I, section 15 of the California Constitution has long been held to include the right to the effective assistance of counsel. (Powell v. Alabama (1932) 287 U.S. 45; Gideon v. Wainwright (1963) 372 U.S. 335; People v. Ibarra (1963) 60 Cal.2d 45.) The right to counsel “entitles the defendant not to some bare assistance but rather to effective assistance. [Citation.]” (People v. Ledesma (1987) 43 Cal.3d 171, 215, emphasis in original.) Unfortunately, appellants right to effective assistance of counsel was violated in his retrial.
A criminal defendant is thereby entitled to “the reasonably competent assistance of an attorney acting as a diligent conscientious advocate.” (United States v. De Coster (D.C. Cir., 1973) 487 F.2d 1197, 1202.) The California Supreme Court has characterized the purpose of the right to effective assistance of counsel as follows: “The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citation.] (Ledesma, supra, 43 Cal.3d at p. 215.)
Under both California and federal law a claim of ineffective assistance of counsel has two components: 1) the defendant must show that counsel’s performance was deficient, i.e., “counsel’s representation fell below an objective standard of reasonableness … under prevailing professional norms” (Strickland v. Washington (1984) 466 U.S. 668, 686-689; accord People v. Pope (1979) 23 Cal.3d 412, 423-425); 2) the defendant must show prejudice (Ledesma, supra, 43 Cal.3d at 217, citing Strickland, supra, 466 U.S. at 691-692; People v. Fosselman (1983) 33 Cal.3d 572, 583-584.)
California law requires prejudice to be affirmatively proved and adopts the Strickland standard that “‘the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.’” (Ledesma, supra, 43 Cal.3d at 217-218, quoting Strickland, supra, 466 U.S. at 693-694; accord People v. Marquez (1986) 188 Cal.App.3d 363, 369.) A “reasonable probability” does not mean “more likely than not” but is a probability sufficient to undermine confidence in the outcome of the trial. (Strickland, supra, 466 U.S. at 694.)
Specifically, ‘when a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.’ (Ledesma, supra, 43 Cal.3d at 218.)
When this court reviews trial counsel’s performance to determine whether it was deficient, it must “in general exercise deferential scrutiny.” (Id., at p. 216; accord Pope, supra, 23 Cal.3d at 424.) However, our Supreme Court has qualified that general rule. “We must emphasize, however, that deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. ‘[D]eference is not abdication’ [Citation]; it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. Otherwise, the constitutional right to the effective assistance of counsel would be reduced to form without substance.” (Id., at p. 217.) Based on the above standards and the facts of appellant’s case, her attorney failed to provide effective legal assistance.
C. Counsel’s Failure To Request A Pinpoint Instruction Regarding The Legal Consequence Of Antecedent Threats and Assaults On Reasonable And Unreasonable Self-defense Denied Appellant Her Rights To A Fair Trial And Effective Assistance of Counsel.
It has been the law for over forty years that a defendant is entitled to an instruction regarding the role of antecedent threats or violence by the homicide victim on the accused’s use of deadly force. “It is well settled a defendant asserting self-defense is entitled to an instruction on the effect of antecedent threats or assaults by the victim on the reasonableness of defendant’s conduct (People v. Moore (1954) 43 Cal.2d 517, 527-528; People v. Pena (1984) 151 Cal.App.3d 462, 475; People v. Bush (1978) 84 Cal.App.3d 294, 303-304; People v. Torres (1949) 94 Cal.App.2d 146, 151-154; People v. Graham (1923) 62 Cal.App. 758, 765; People v. Bradfield (1916) 30 Cal.App. 721, 727).” (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664.)
In all of those cases, the defense requested an instruction relating the effect of antecedent threats and/or violence to the reasonableness of the defendant’s conduct. In all of those cases, the reviewing courts found that the trial court had erred by refusing to instruct on the legal effect of prior threats or violence by the victim on the defendant’s response and that the error was reversible. While the instruction proposed in those cases varied slightly from case to case, all of the proposed instructions included that the jury is to consider the fact that a person who has previously been threatened with death or bodily harm by the victim or been attacked by the victim is justified in acting both more quickly and more harshly.
In People v. Spencer (1996) 51 Cal.App.4th 1208, the trial court modified CALJIC 5.12 to include the effect of antecedent threats.
As used in these instructions, [‘]imminent danger[’] means that the danger must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired. In other words, the danger must appear to the defendant as immediate and present[,] and not prospective or even in the near future. An imminent danger is one that[,] from appearances, must be immediately dealt with. In determining whether a person presents an imminent danger, the defendant is entitled to consider all the circumstances, including any prior assaults or threats by that person against the defendant. [&] One who has received threats against his or her life or person is justified in acting more quickly and taking harsher measures for his or her own protection in the event of assault, either actual or threatened, [than] would be a person who had not received such threats.
(Id., at p. 1219, emphasis added.
The Court of Appeal in People v. Pena, supra noted the danger of the jury not being instructed on the effects of antecedent threats or violence. “Absent instruction with respect to the effect of prior threats, jurors could believe they were precluded from considering the effect of prior threats on defendant’s perception of his immediate danger. (People v. Bush, supra., 84 Cal.App.3d 294; People v. Torres, supra., 94 Cal.App.2d 146.)” (People v. Pena, supra, 151 Cal.App.3d at p. 475.)
The error of not instructing on antecedent threats/violence is presumed prejudicial. (Ibid.) In appellant’s case, the effect on appellant of having been battered over a long period of time by Mr. H was the crux of her defense. It is clear that, based on the facts of appellant’s case which included the prior threat to have her killed and repeated acts of violence by Mr. H, that it would have been reversible error if the trial court had denied a defense request for an instruction regarding antecedent threats/violence. It therefore follows that it was reversible error for defense counsel not to have requested such an instruction.
In appellant’s case, the uncontroverted evidence showed that Mr. H had repeatedly beaten appellant and had threatened to kill her if she did not recant her prior charges of abuse. Indeed, Dr. Barnard testified that a battered woman in appellant’s situation would perceive the need to act more quickly and take harsher measures to prevent injury. (RT 971-972.) Yet, due to counsel’s omission, the jury was not told that the law embraces that principal. There simply can be no possible tactical reason for defense counsel not having requested an instruction which would have clarified that appellant was justified in acting more quickly and harshly than would some reasonable person whom had never been brutalized by Mr. H.
D. Petitioner Was Prejudiced By Counsel’s Poor Performance.
In this case, counsel’s error was so significant that it deprived appellant of due process of law. Therefore, reversal is required unless respondent can prove beyond a reasonable doubt that her second degree murder conviction was unaffected by the error. That is an impossible burden to meet.
However, even if this court applies the traditional test for ineffective assistance, i.e., whether it is reasonably probable that a better result would have occurred absent counsel’s error, reversal is still required. The issue in this case was not who killed Mr. H but whether appellant was legally culpable and is so the level of her culpability. The trier of fact was faced with determining whether appellant acted reasonably to defend herself, acted unreasonably but in good faith to defend herself, or acted with malice aforethought.
Based on the uncontroverted facts of appellant’s case from which a reasonable jury, correctly instructed, could have acquitted her or found her guilty of a lesser included offense, it is more than reasonably probable that a better result would have occurred absent counsel’s failure to request an instruction based on law which is so well settled that the Judicial Counsel’s proposed modification to the criminal jury instructions includes a modification of CALJIC 5.12 to include language regarding antecedent threats or violence. (See www.courtinfo.ca.gov/invitationstocomment/approsals.aspx, #701.)
