Opinion Bank # O-136
[No. B051210. Second Dist., Div. One. Nov. 2, 1992.]
[No. B068893. Second Dist., Div. One. Nov. 2, 1992.]
10 CA4th 1150
Plaintiff and Respondent,
DEBRA JEANIE ROMERO,
Defendant and Appellant.
In re DEBRA JEANIE ROMERO on Habeas Corpus.
Defendant was charged with one count of second degree robbery and four counts of attempted robbery. Her defense was duress. She admitted the crimes but claimed she participated because she was afraid her boyfriend (a codefendant) would kill her if she did not do as he demanded. Defense counsel presented no expert testimony about Battered Woman Syndrome (BWS) to corroborate the duress defense. Defendant was convicted as charged. (Superior Court of Los Angeles County, No. NA000345, Arthur H. Jean, Jr., Judge.)
The Court of Appeal granted defendant’s petition for a writ of habeas corpus, vacated the judgment, and remanded defendant to the trial court for a new trial; it also dismissed her appeal. The court held that trial counsel provided ineffective assistance in failing to present expert testimony explaining BWS to corroborate defendant’s duress defense. If BWS testimony is relevant to credibility when a woman kills her batterer, the court held it is a fortiori relevant to her credibility when she participates in robberies at her batterer’s insistence. Counsel neither carefully nor sufficiently investigated this obviously crucial defense, and there was a reasonable probability that presentation of expert testimony about BWS would have bolstered defendant’s credibility and persuaded the jury to accept the defense of duress. The court held that since the presentation of such evidence would have given trial counsel something affirmative to argue while at the same time eliminating much of the prosecutor’s ability to attack her defense, the failure to present (Ms evidence was prejudicial. (Opinion by Vogel, J., with Spencer, P. J., and Ortega, J., concurring.)
Joan T. Anyon, under appointment by the Court of Appeal, for Defendant and Appellant and for Petitioner.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, William T. Harter and William V. Ballough, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.-Debra Romero and Terrance Romero were both charged with one count of second degree robbery and four counts of attempted robbery. Debra’s defense was duress. She admitted the crimes but claimed she participated because she was afraid Terrance would kill her if she didn’t do as he demanded. The jury apparently didn’t believe Debra and she was convicted as charged. She now petitions for a writ of habeas corpus, contending her lawyer was ineffective because he failed to present expert testimony explaining Battered Woman Syndrome. We agree. [FOOTNOTE 1]
Debra and Terrance are not married but they began living together (with Terrance’s two minor children and his father) in March 1989. About sixweeks after Debra moved in, Terrance began hitting her if she didn’t get money when he told her to do so (they are both cocaine addicts and he needed the money to support his habit) and, from that point on, he hit her “almost every day.” Debra left Terrance on several occasions but he would always find her and persuade her to return. When he became angry, he would rip screens off windows, throw things out of windows and, when she would try to leave, he would threaten her, telling her that he would kill her and that, “If I can’t have you, nobody else can.” At one point, Debra’s father obtained a restraining order against Terrance because he had been throwing things through her father’s windows. On another occasion, Debra was hospitalized after she attempted to jump through a window to get away from Terrance. The window fell on her and she was badly cut (she required 23 stitches). Debra did not tell the police about Terrance’s beatings.
On May 28, 1989, Debra, posing as a prostitute, was picked up by Gary Shortridge. Following Debra’s instructions, Shortridge drove into an alley where he was confronted by Terrance, who drove his car to block Shortridge’s car. Debra asked Shortridge to give her some money so Terrance wouldn’t hurt her. Shortridge responded by ramming Terrance’s car and driving away at high speed with Debra still in his car. Debra screamed at Shortridge to stop and pleaded with him to give her money so Terrance wouldn’t hurt her (“He’ll be happy with that, and he won’t hurt me”). Shortridge waited until he saw a policeman and then stopped. [FOOTNOTE 2]
On July 11, 1989, Terrance (with Debra as a passenger) pulled up to Grace De Vos’s car in a Bank of America parking lot, Debra got out, and Terrance told De Vos to give Debra all of her money. De Vos explained that she didn’t have any and attempted to start her car, at which point Terrance pointed a gun at her and said, “Start the car and I’ll shoot you.” Debra then looked in De Vos’s car and reported to Terrance that there was a briefcase. Terrance told De Vos to give the briefcase to Debra but at that point someone walked into the lot, Debra got back into Terrance’s car and Terrance drove away. [FOOTNOTE 3]
On July 12, 1989, Terrance (with Debra as a passenger) drove up alongside Wilda King’s van in a Lucky’s market parking lot. Debra got out of the car and King, thinking they needed help, walked over to Terrance’s car and asked if they needed directions. Terrance pointed a gun at King and said, “No, I want your purse.” Debra appeared nervous and hesitant and just stood there, without doing anything. King said “No” and Terrance said “Please” and King said “No” again and started backing away. King ran to some people who were standing nearby and Terrance drove away.
On July 19, 1999, Terrance (with Debra as a passenger) drove his car head-on at Sarah McClain’s car as she was driving out of a Lucky’s market parking lot and into an alley. As McClain pulled to the right and stopped to let Terrance pass, Terrance stopped his car, pointed a gun at her and asked for money. McClain gave Terrance her chance purse. Terrance took the change (about $1.50), returned the purse to McClain, and told Debra to go see whether McClain had anything else in her purse. Debra got out of Terrance’s car and McClain showed her that all she had was checks, no cash. Debra got back into Terrance’s car and Terrance then asked McClain if she had any jewelry. McClain said she couldn’t get her rings off and Terrance drove off. This incident, with a total take of $1.50, constitutes the only completed robbery.
On July 23, 1989, James Stratton was stopped at a light on Pacific Coast Highway when Debra approached the passenger side of his van and said she had been beaten and robbed. She appeared hysterical and had her hand over her left eye. She tried the door handle, found it was locked, then reached through the open window, opened the door, and got into the van. Her face was bruised and puffy and she looked as though she had been hit. At that point, Terrance drove up on the left side of Stratton’s van and pointed a gun at Stratton. Debra grabbed the key to turn off Stratton’s engine and Terrance told Stratton to give his money to Debra. Debra said, “He has a gun. Give him all the money.” Stratton panicked, knocked Debra’s hand off the ignition key and drove off, followed by Terrance. Debra screamed at him, pleading to be let out of the car. Stratton eventually stopped, when he could no longer see Terrance in his rear view mirror, and Debra got out. [FOOTNOTE 4]
Debra and Terrance were charged with one count of second degree robbery and four counts of attempted robbery. Enhancement allegations charged Terrance with the personal use of a handgun and Debra with participating in crimes in which a principal was armed with a handgun. They both pleaded not guilty and were able to make bail. While they were awaiting trial, Debra continued to see Terrance and he continued to beat her.
At trial, Debra testified to the facts stated above, agreeing with the victims’ testimony and simply adding her explanation for why she did what she did. Terrance also testified on his own behalf, telling the jury that he met Debra when he picked her up on a street corner and offered her money for sex and that she moved in with him about a year later. Not withstanding that he was identified by all five victims (not to mention Debra’s testimony), Terrance said he was not involved in any of the incidents and never saw any of the victims prior to the court proceedings. Terrance also testified that he is “very much in love” with Debra, he has never threatened her and he has never hit her. On the night she tried to jump out the window, it was because he was trying to stop her from going out to buy more cocaine. Debra wrote to him while he was incarcerated and her letters expressed her love.
Debra was convicted of all five charges and the enhancement allegations were found true as to three counts (Wilda King, Sarah McClain and Grace De Vos) but not true as to the other two counts (James Stratton and Gary Shortridge). Debra was sentenced to state prison for a term of five years, eight months.
Debra contends she was denied the effective assistance of counsel because her trial attorney failed to present expert testimony about Battered Woman Syndrome to corroborate her duress defense. As indicated at the outset, we agree.
Battered Woman Syndrome (BWS) describes a pattern of psychological and behavioral symptoms found in women living in battering relationships. The dynamic is commonly described as a cycle of violence involving three phases-a tension building phase, an acute battering incident and a tranquil period of loving contrition. (Walker, Terrifying Love (1989) p. 42; Walker, The Battered Woman Syndrome (1984) pp. 95-97; Murphy, Assisting the Jury in Understanding Victimization: Expert Psychological Testimony on Battered Women Syndrome and Rape Trauma Syndrome (1992) 25 Colum. J.L. & Soc. Probs. 277, 295 [hereafter Assisting the Jury].) [FOOTNOTE 5] The cycle begins with minor battering incidents, after which the woman attempts to placate the batterer to prevent an escalation of violence but these efforts become less effective as the cycle progresses and the tension grows. Eventually, the violence spirals out of control into an acute battering incident (rampage, injury, brutality and sometimes death). The acute incident is followed by a period of loving contrition in which the barterer exhibits loving behavior and tries to atone. (Walker, Terrifying Love, supra, at pp. 43-45; Assisting the Jury, supra, at p. 295; see also People v. Aris, supra, 215 Cal.App.3d at pp. 1194-1195.)
Victims of BWS suffer from a condition known as “learned helplessness,” a reaction first tested in laboratory experiments in which dogs were taught that their behavior did not affect the frequency of electric shocks inflicted upon them. The dogs’ perception-that there was no relationship between their conduct and the shocks caused distortions in their behavior. Instead of trying to escape as they had at the beginning of the experiment, the dogs became compliant, passive, and submissive. Later, when the cages were opened, the dogs remained passive and refused to leave. A similar coping response is found in battered women-unable to predict the consequences of their own actions, these women respond passively to abuse and will not attempt to leave the abuser, even when it appears to outsiders that they could do so safely. (Assisting the Jury, supra, at pp. 295-296; Walker, Terrifying Love, supra, at pp. 49-51; Breyer, The Battered Woman Syndrome and the Admissibility of Expert Testimony (1992) 28 Crim. L. Bull. 99, 100-101.)
Another reason battered women do not leave their batterers is their fear that if they do leave, they will be found and hurt even more. (Ibn-Tamas v. United States, supra, 407 A.2d at p. 634.) This fear is not unfounded–a common statement by a battering man threatening harm if the woman leaves is, “‘if I can’t have you, no one will.'” (Comment, Self-Defense: Battered Woman Syndrome on Trial (1984) 20 Cal. Western L. Rev. 485, 489.) [FOOTNOTE 6] A batterer experiences chronic, almost pathological jealousy and he may frequently accuse the woman of infidelity. He may not permit her to see other people unless he is present. (Comment, supra, 20 Cal. Western L. Rev. at p. 488.) The typical batterer may excuse his violent behavior by blaming the battered woman for some imagined infraction of his personally set rules. He believes in the validity of stereotypical sex roles and the supremacy of the male. (Walker, Terrifying Love, supra, at p. 71.) Many of the men and women involved in battering relationships are substance abusers. (Walker, Terrifying Love, supra, at p. 52; see People v. Day (1992) 2 Cal.App.4th 405, 413-414 [2 Cal.Rptr.2d 916].) In recent years, it has become apparent that BWS is a serious and prevalent problem infecting all socioeconomic and religious groups. At least one study has concluded that there are as many as six million battered women in the United States. (Waits, The Criminal Justice System’s Response to Battering: Understanding the Problem, Forging the Solutions (1985) 60 Wash. L. Rev. 267, 273.)
In support of her petition, Debra has submitted the declaration of Dr. Daniel Jay Sonkin, a marriage, family and child counselor specializing in the areas of family violence and the battering of women by their partners. [FOOTNOTE 7] Accordingly to Dr. Sonkin, if the facts of this case had been presented to him prior to trial, he would have recommended an evaluation and an investigation to determine “the applicability of the Battered Woman’s Syndrome because the facts as revealed strongly suggest that Debra Romero could suffer from this syndrome.”
Debra has also submitted the declaration of her appellate counsel, Joan T. Anyon. Anyon tells us that she contacted Jerold Berger, Debra’s trial counsel, to inquire about “any reasons for his failure to present expert testimony regarding the battered woman syndrome.” Berger told Anyou that he had in fact considered introducing evidence that Debra suffered from BWS to support her duress defense and, in pursuit of more in formation about BWS, Berger “contacted Leslie Abramson, a well-known defense attorney, who provided him with the name of an expert who could evaluate whether [Debra] suffered from the syndrome and testify at trial. Mr. Berger informed me that he was never able to get in touch with the expert prior to trial.” Berger promised that a declaration to this effect would be forthcoming but, despite repeated requests from Anyon, it was never provided.
When a woman kills her batterer and pleads self-defense, expert testimony about BWS is admissible to explain how her particular experiences as a battered woman affected her perceptions of danger and her honest belief in its imminence (People v. Aris, supra, 215 Cal.App.3d at p. 1198) and also to rehabilitate her credibility when the prosecutor has attempted to impeach her by urging that her conduct is inconsistent with her claim of self-defense (People v. Day, supra, 2 Cal.App.4th at p. 415). [FOOTNOTE 8]
If BWS testimony is relevant to credibility when a woman kills her batterer, it is a fortiori relevant to her credibility when she participate s in robberies at her batterer’s insistence. [FOOTNOTE 9] To paraphrase People v. Day, supra, 2Cal.App.4th at pages 416-418, “BWS evidence would have deflected the prosecutor’s [and Terrance’s] challenge to [Debra’s] credibility. Such evidence would have assisted the jury in objectively analyzing [Debra’s] claim of [duress] by dispelling many of the commonly held misconceptions about battered women. As the record reflects, the prosecutor [and Terrance] exploited several of these misconceptions in urging the jury to reject [Debra’s duress] claim.
“‘Expert testimony on the battered woman syndrome would help dispel the ordinary lay person’s perception that a woman in a battering relationship is free to leave at any time. The expert evidence would counter any ‘common sense’ conclusions by the jury that if the beatings were really that bad the woman would have left her [batterer] much earlier. Popular misconceptions about battered women would be put to rest, including the beliefs the women are masochistic and enjoy the beatings and that they intentionally provoke their [batterers] into fits of rage.’ ” (Ibid., quoting State v. Hodges (1986) 293 Kan. 63 [716 P.2d 563, 567], disapproved on other grounds in State v. Stewart (1988) 243 Kan. 639 [763 P.2d 572, 579].)
As relevant to this case, the defense of duress is the same as self-defense–in both, the key issue is whether the defendant reasonably and honestly believed she was in imminent danger of great bodily harm or death. To establish duress, a defendant must raise a reasonable doubt that she acted in the exercise of her free will (People v. Graham (1976) 57 Cal.App.3d 238, 240 [129 Cal.Rptr. 311) by showing she committed the charged crime under threats or menaces sufficient to create a good faith, objectively reasonable belief that there was an imminent threat of danger to her life. Fear of great bodily harm is sufficient and, except as to homicide, duress is available as a defense to any crime. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 231, pp. 267-268; People v. Health (1989) 207 Cal.App.3d 892, 899-901 [255 Cal.Rptr. 1201; People v. Pic’l (1981) 114 Cal.App.3d 824, 868-869 [171 Cal.Rptr. 1061, disapproved on other grounds in People v. Kimble (1989) 44 Cal.3d 480, 498 [244 Cal.Rptr. 148, 749 P.2d 8031; People v. Condley (1977) 69 Cal.App.3d 999, 1008-1011 [138 Cal.Rptr. 5151].)
For purposes of this opinion (as was the case in People v. Aris, supra, 215 Cal.App.3d at p. 1186), self-defense has two requirements. First, the defendant’s acts must have been motivated by an actual, genuine or honest belief or perception that (a) the defendant was in imminent danger of death or great bodily injury from an unlawful attack or threat by the victim and (b) the defendant’s acts were necessary to prevent injury. Second, it must appear that a reasonable person in the same circumstances would have had the same perception and done the same acts.
With the two defenses thus juxtaposed, it is clear that a rule permitting expert testimony about BWS in a self-defense case must necessarily permit it in a case where duress is claimed as a defense. In both cases, the evidence is relevant to the woman’s credibility and to support her testimony that she entertained a good faith objectively reasonable and honest belief that her act was necessary to prevent an imminent threat of greater harm. (See State v. Ciskie (1988) 110 Wn.2d 263 [751 P.2d 1165, 11691174] [prosecutor may present expert testimony about BWS in support of charges that defendant raped his girlfriend four times over a nine-month period, to explain why victim never reported the rapes and did not leave the relationship]; United States v. Wititers (9th Cir. 1984) 729 F.2d 602, 604-605 [prosecutor may present BWS evidence to explain why kidnapped women forced to engage in prostitution did not try to escape]; State v. Baker (1980) 120 N.H. 773 [424 A.2d 171, 172-173] [BWS evidence properly admitted to rebut defendant’s testimony that he was insane at the time he assaulted his wife].) [FOOTNOTE 10]
Debra’s claim that trial counsel’s assistance was so ineffective as to require reversal of her conviction has two components. First, she must show that counsel’s performance was deficient. Second, she must show prejudice–that there is a reasonable probability that, but for counsel’s mistake, the result of her trial would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [233 Cal.Rptr. 404, 729 P.2d 839].)
A defendant in a criminal case has the right to the assistance of counsel in order to insure that her trial is both fair in its conduct and reliable in its result. The right is not to some bare or minimal assistance but rather to effective assistance, to the reasonably competent assistance of an attorney acting as her diligent and conscientious advocate. (People v. Ledesma, supra, 43 Cal.3d at p. 215.) It is fundamental to this concept that defense counsel is expected to make rational and informed decisions on strategy and tactics founded on adequate investigation and preparation. More specifically, he is expected to “conduct careful factual and legal investigations and inquiries with a view to developing matters of defense in order that he may make informed decisions on his client’s behalf . . . .” People v. Shells (1971) 4 Cal.3d 626, 630 [94 Cal.Rptr. 275, 483 P.2d 1227]; italics added.) If as a result of his failure to undertake a careful inquiry and investigation a crucial defense is withdrawn from the case, the defendant has not had the assistance of counsel to which she is entitled. (People v. lbarra (1963) 60 Cal.2d 460, 464 [34 Cal.Rptr. 863, 386 P.2d 487], disapproved on other grounds in People v. Pope (1979) 23 Cal.3d 412, 421423 (152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)
This is not a case in which there can be any doubt about whether trial counsel’s failure to conduct a careful investigation withdrew an obviously crucial defense from his client’s case. Berger admitted to Anyon that he recognized the possibility that Debra suffered from BWS and considered offering BWS evidence to support Debra’s duress defense. [FOOTNOTE 11] Indeed, he obtained the name of a BWS expert who could evaluate Debra and testify at trial. But that’s all he did. When he was unable to reach the expert before trial, he simply dropped the ball and his failure to provide a declaration explaining his conduct (notwithstanding several requests from Anyon) permits us to presume the absence of a satisfactory explanation. (See People v. Pope, supra, 23 Cal.3d at p. 426.) At the risk of understating the obvious, we conclude that Berger neither carefully nor sufficiently investigated an obviously crucial defense. (People v. Dav, supra, 2 Cal.App.4th at pp. 419-420 [reversing on the ground of ineffective counsel based upon a failure to present BWS evidence].)
We agree with Debra that there is a reasonable probability that presentation of expert testimony about BWS would have bolstered her credibility and persuaded the jury to accept the defense of duress. (See People v. Ledesma, supra, 43 Cal.3d at p. 218.) A “reasonable probability” is a probability sufficient to undermine confidence in the judgment of conviction. (Strickland v. Washington (1984) 466 U.S. 668, 693-694 [80 L.Ed.2d 674, 697-698, 104 S.Ct. 2052].) [FOOTNOTE 12]
Debra admitted that she committed all of the charged offenses and her sole defense was duress. Although substantial evidence established that Debra was frequently and severely beaten by Terrance and that he threatened her with further harm and even death if she left or did. not do what he wanted her to do (In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [122 Cal.Rptr. 79, 536 P.2d 479] [testimony of even one witness constitutes substantial evidence]), there was no mention at all of BWS. There was no explanation for Debra’s failure simply to walk away from Terrance or for her continued participation in the robberies or for her apparently inconsistent behavior after they were arrested, when she wrote loving letters to him while he was still incarcerated.
The efforts by Debra’s lawyer to explain the love letters emphasized the absence of corroboration for Debra’s defense. This is what he argued: “About the letters, why did she write these letters, that she loved Terry? I don’t know, I guess to understand that you would have to understand psychology. And there was no testimony from any psychologist in the case. I could only speculate, but my guess is that if you pet a dog and give him a lot of food and then you beat him up, then they come back for more. And some people are like that, unfortunately. I guess maybe that’s an oversimplification, but I’m not a psychologist. I just think it’s not beyond belief that someone could be beaten and pushed around and then, on the other hand, stroked, petted and loved and given gifts to and still come back for more. And apparently, Debra was responding to Terry’s letters, his love letters, when she wrote the love letters back to him.”
And Terrance’s lawyer compounded the problem by arguing that if Debra “had, you know, these problems that she has told us about, don’t you think that somebody would have heard about it, such as the police department, that she would have been hollering and screaming to everybody that would listen to her that, you know, ‘I’m a battered woman, and I’m doing all of this because. . . my boyfriend . . . was beating me and forcing me to do all of these things?’ The fact of the matter is that there is no such evidence. In fact, the only thing that you have by way of evidence is to the contrary by her own testimony. She didn’t tell the police about any of these things.” [FOOTNOTE 13]
The prosecutor argued that the testimony about the beatings was a red herring and urged the jury to disregard Debra’s testimony on this subject because her trial was not a forum for deciding whether Terrance was a woman beater. [FOOTNOTE 14] He characterized her testimony about her fear as lies made up to absolve her of responsibility for her actions but also said that even if they were true, the threats were insufficient to constitute an immediate threat to her life because Debra had not met her burden of proof. [FOOTNOTE 15]
Evidence of BWS would have explained a behavior pattern that might otherwise (and obviously did) appear unreasonable to the jurors. Evidence of BWS not only explains how a battered woman might think, react, or behave, it also places the behavior in an understandable light. “One of the most commonly made arguments by prosecutors in urging rejection of a defense is that the person’s behavior is inconsistent with that defense . . . . Jurors are told to evaluate and react to evidence by what a reasonable person would do or not do. Frequently, conduct appears unreasonable to those who have not been exposed to the same circumstances. . . . It is only natural that people might speculate as to how they would react and yet be totally wrong about how most people in fact react.” (People v. Day, supra, 2 Cal.App.4th at p. 419.)
That is precisely what happened here. The prosecutor argued that, assuming Debra wasn’t lying about the whole thing, she could have run away and that she was not really in any imminent danger. An expert could have helped persuade the jury that Debra was not lying and also could have explained that battered women are afraid to run away because they are convinced their batterers will find them and beat them again or even kill them. (Walker, Terrifying Love, supra, at p. 47 [the greatest risk of harm to a battered woman is when she tries to leave].) An expert could have explained that Terrance’s threat–“if I can’t have you, nobody else can”–is the threat most commonly made by battering males. An expert could have explained a battered woman’s heightened awareness of danger and the jury could have considered that circumstance in deciding whether Debra believed she was in imminent dancer. And Terrance’s lawyer’s suggestion that Debra would have reported the beatings to the police or to her family if, in fact, they had really occurred could have been met with an expert’s explanation that only about one in ten incidents of battering are reported because shame and fear of reprisals frequently keep battered women from calling the police. (Stale v. Ciskie, supra, 751 P.2d at p. 1170.)
Expert testimony explaining BWS would have given the jurors an ability to understand why a battered woman acts as she does and, with that information, the jury could have fairly decided the ultimate questions about whether Debra was, in fact, suffering from BWS and, if so, whether she was acting under duress. Since the presentation of BWS evidence would have given Debra’s attorney something affirmative to argue while at the same time eliminating much of the prosecutor’s ability to attack her defense, the conclusion is unavoidable that the failure to present this evidence was prejudicial. (See Schuller, The Impact of Battered Woman Syndrome Testimony on Jury Decision Making, supra, 10Windsor Y.B. Access to Justice, at pp. 116-117 [citing a study involving 44 cases in which the defense attempted to present expert testimony on BWS; of the 18 trials in which the evidence was excluded, all 18 women were convicted; in contrast, of the cases in which BWS testimony was introduced, one-third of the women were acquitted].)
The petition for writ of habeas Corpus is granted. The judgment is vacated, and Debra Romero is remanded to the Superior Court of Los Angeles County for a new trial. The appeal is dismissed.
Spencer, P. J., and Ortega, J., concurred.
A petition for rehearing was denied on November 30, 1992, and the following opinion was then rendered:
THE COURT. [FOOTNOTE 16] — The petition for rehearing is denied. We did not (as asserted) place “great stock” in Dr. Sonkin’s opinion. As explained in footnote 12, ante, page 1532, our earlier refusal to approve fees for an expert evaluation required an assumption that an evaluation, if performed, would support Debra Romero’s BWS claim. Having precluded the submission of evidence from Romero, we would not have accepted it from the People. And appellate counsel did not simply “claim” that Debra Romero’s trial counsel had “considered” introducing BWS evidence at trial. Appellate counsel provided a detailed declaration offering admissible evidence in the form of trial counsel’s admissions, which were dispositive of the issue. In this case, there was no evidence for the People to present and nothing would have been added by the issuance of an order to show cause. (In re Siegel (1975) 45 Cal.App.3d 843, 845 [120 Cal.Rptr. 81; In re Noland (1978) 78 Cal.App.3d 161, 166 [144 Cal.Rptr. 111]; In re Easterbrook (1988) 200 Cal.App.3d 1541, 1545 [244 Cal.Rptr. 6521.]
Debra and Terrance also appeal from the judgments entered following their convictions. Debra’s attorney filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436, 441 1158 Cal.Rptr. 839, 600 P.2d 1071]) in which no issues were raised. Our examination of the record satisfies us that, other than the point raised by her habeas petition, no arguable issues exist and, but for the issuance of this writ, we would affirm her conviction. Terrance’s appeal is disposed of by a separate unpublished opinion affirming his conviction.
Debra testified that Terrance had hit her the day before and she was afraid that if she didn’t get money from Shortridge, Terrance would hit her again. She also testified that, after the Shortridge incident, Terrance would make her get into cars with men and pretend she was a prostitute in order to set up robberies. But Terrance would then accuse her of actually having (and enjoying) sex with the intended victims and shortly thereafter, he refused to permit Debra out of his sight and changed the modus operandi of their robberies.
De Vos testified that Debra had appeared to be laughing just before she got out of Terrance’s car. Debra explained that she had tried to tell Terrance it was “crazy” to try to rob De Vos in “broad daylight” but she knew the consequences if she didn’t do what he wanted her to do. Just before they approached De Vos, Terrance showed her a bullet and “he [had] carved my name on it.” She was laughing because the whole thing seemed “crazy” and “stupid” to her but she was afraid to refuse to participate.
Debra testified that she had argued with Terrance earlier that day. Her father had called the police to report Terrance’s treatment of her and she told Terrance she was leaving. She went to her father’s house and Terrance called her there. She finally agreed to meet Terrance and he picked her up at her father’s. She once again agreed to help Terrance try to get some money but when her efforts proved unsuccessful, Terrance beat her, hitting her nose and her eye. Terrance dragged her to his van but she got away from him.
The officer who arrested Debra that night testified that she appeared to have been beaten. Although he could not recall prior contacts with her, his report for July 23 notes that “on each of these occasions and during this arrest, [Debra] had showed [sic] severe beating on her face with her eyes swollen and was bruising much [sic] on her face.”
Dr. Lenore Walker, a clinical psychologist and noted authority on BWS, is quoted at length in virtually every law review article on the subject and many courts have relied on her writings. Dr. Walker first offered evidence on BWS in Ibn-Tamas v. United States (D.C. 1979) 407 A.2d 626, 631-640, and she was the expert in People v. Aris (1989) 215 Cal.App.3d 1178, 1194 [264 Cal,Rptr. 167], the first California case to consider the admissibility of expert testimony about BWS in the self-defense context. (Recent Developments, The Expert as Educator: A Proposed Approach to the Use of Battered Woman Syndrome Expert Testimony (1982) 35 Vand. L. Rev. 741, 743, fn. 13.)
See Martin, Battered Wives (1981) at pp. 79-79 [“‘Very few people understand this kind of fear . . . . It is the fear of knowing someone is searching for you and will beat you when he finds you. In the mind of someone who has been badly beaten, this fear blots out all reason. The man seems to be omnipotent'”]; see also Eber, The Battered Wife’s Dilemma: To Kill or To Be Killed (1981) 32 Hastings L.J. 895, 901; Crocker, The Meaning of Equality for Battered Women Who Kill Men in Self Defense (1985) 8 Harv. Women’s L.J. 121, 127 [“Battered women . . . may perceive danger and imminence differently from men. . . . A subtle gesture or a new method of abuse, insignificant to another person, may create a reasonable fear in a battered woman”].
Dr. Sonkin’s c.v. discloses that he obtained his Ph.D. degree in 1981, with a major in counseling psychology and an emphasis on the treatment of male batterers. In addition to his private practice and other positions, he has substantial teaching experience and he has published extensively on various subjects related to domestic violence. He belongs to numerous professional associations.
BWS evidence has been admissible to support a claim of self defense since at least 1979, (Ibn-Tamas v. United States, supra 407 A.2d 626.) Today, most counts accept BWS evidence to some extent. (See, e.g., State v. Koss (1990) 49 Ohio St.3d 213 [551 N.E.2d. 970, 974], overruling State v. Thomas (1981) 66 Ohio St.2d 518 [20 OhioOp.3d 424, 423 N.E.2d 137], which had refused to follow Ibn-Tamas; Smith v. State (1981) 247 Ga. 612 [277 S.E.2d 678, 18 A.L.R.4th 1144]; State v. Allery (1984) 101 Wn. 2d 591 [682 P.2d 312, 316]; State v. Kelly (1984) 97 N.J. 178 [478 A.2d 364, 369-378] [emphasizing the importance of BWS evidence to explain the effects of a form of victimization outside the experience of most jurors]; People v. Minnis (1983) 118 Ill.App.3d [455 N.E.2d 209, 217-218]; Commonwealth v. Craig (Ky. 1990) 783 S.W.2d 387, 389; State v. Anaya (Me. 1981) 438 A.2d 892, 893-895; Commonwealth v. Stonehouse (1989) 521 Pa. 41 [55 A.2d 772, 782-785]; State v. Wilkins (1991) 305 S.C. 272 [407 S.E.2d 670, 672-673]; Fielder v. State (Tex. 1988) 756 S.W.2d 309, 320-321; but see Hawthorne v. State (1985) 10 Fla.L.Weekly 1406 [470 So.2d 770, 773-774]; State v. Necaise (La. 1985) 466 So.2d 660, 664-665.)
There nevertheless still exists a misconception by some lawyers and judges that there is a defense called “battered woman syndrome” giving women who are battered some unique right simply because they are battered. That is not the law in California (or, as far as we can tell, anywhere else). (See Comment, supra, 20 Cal. Western L.Rev. at p. 495.) In California and in most states, the law is that evidence of BWS is admissible to prove the “honest belief” requirement by explaining a battered woman’s perception of imminent danger when that issue is relevant to her defense, to disabuse the jurors of common misconceptions about BWS, and to rehabilitate a woman’s testimony when she has been impeached by the suggestion that her behavior toward her batterer is inconsistent with her claim that she acted the way she did because she was battered. (See State v. Walker (1985) 40 Wash. App. 658 [700 P.2d 1168, 1173, A.L.R.4th 1496].)
Debra was tried in 1990. In 1991, the Legislature added section 1107 to the Evidence Code, to provide that, “[i]n a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women’s syndrome, including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.” (Stats. 1991, ch. 812, § 1.) There is nothing in the language of the statute suggesting a legislative intent to limit its application to cases involving a claim of self defense. To the contrary, section 1107 appears to make expert testimony admissible in any criminal case, regardless of the charges or defenses, except a case in which the batter is prosecuted for his acts of abuse and the evidence is offered to prove that he committed those acts.
In R. v. Runjanjic; R. v. Kontinnen (19910 56 S. Austl. Stat. R. 114, two women and a man (Hill) were charged with the false imprisonment and battery of a female victim. Both female defendants offered evidence to show they had lived with Hill in battering relationships and that he had forced then to work as prostitutes. Both women claimed they acted out of fear of Hill and their defense was duress. The trial court refused to admit BWS expert testimony and the women were convicted. The South Australia Court of Criminal Appeals reversed, holding that the evidence should have been admitted to assist the jury in “the application of the test for duress.” (Id. at p. 123.)
Counsel’s admission eliminates any concern we might have had about whether, prior to our decision in this case, it would have been reasonable to expect a criminal defense lawyer to recognize the applicability of BWS evidence to a defense of duress. (Compare People v. Archer (1989) 215 Cal.App.3d 197, 206 [263 Cal.Rptr. 486].)
For purposes of this part of our discussion, we must assume an expert would have concluded that BWS applies to Debra and would have so testified at trial. When Debra’s appellate counsel requested fees for an expert evaluation to determine whether BWS applies to Debra and whether, but for trial counsel’s error, the result at trial would have been different, that request was denied on the ground that the “issue of an expert witness and the subsequent expense is relevant only if this court grants [Debra] relief. . . .” Appellate counsel nevertheless somehow persuaded Dr. Sonkin to conduct a preliminary investigation and we do have his opinion that, based upon his review of the evidence, the facts “strongly suggest that Debra Romero could suffer from this syndrome.” Under these circumstances, we must presume Debra does suffer from the syndrome.
Terrance’s lawyer presented the argument most often made by the prosecution. See Schuller, The Impact of Battered Woman Syndrome Testimony on Jury Decision Making: La Valle v. R. Considered (1990) 10 Windsor Y.R. Access to Justice 105, 113: “[T]he prosecution may directly draw upon [recognized] stereotypes in an attempt to discredit the accused’s story of what happened. . . . ‘[T]he prosecutor can argue to the jury that if there had indeed been the violence that she claims, she would surely have left him long ago. She would have called the police . . . . All of the ways in which so many beaten women manage to hide what they perceive as their humiliating and shameful situation is turned against them.'”
In 1874, a North Carolina court criticized the infamous “rule of thumb” allowing a husband to beat his wife with a switch provide it was “no thicker than his thumb,” but at the same time refused to “listen to trivial complaints” about a husband’s “moderate chastisement” of his wife, preferring to “draw the curtain, shut the public gaze, and leave the parties to forget and forgive.” (State v. Oliver (1874) 70 N.C. 60, 61-62.) This “curtain rule” is still used to rationalize the nonintervention of law enforcement and the judiciary in domestic violence matters. (Walus-Wigle & Meloy, Battered Women Syndrome as a Criminal Defense (1988) 16 J. Psychiatry & Law 389, 390.)
The prosecutor’s argument was not subtle: “You have here a situation where [Debra] is saying, ‘Okay, there’s all these people coming in. I know that the jury is simply not going to buy all those people are coming in and lying, that they conspired together to frame me; so I’ve got a way out, though. I’m going to claim that Terrance has been beating me and that he’s forcing me in to it. That way, I don’t have to argue with what they saw happen, but I can seek to evade responsibility for it without being ludicrous and saying these things didn’t happen.’ . . . Now, we have asked you to reply upon your own judgment and your own common sense in assessing the testimony of each of these people. However, the court’s also given you some additional guidelines in assessing credibility of witnesses and here you have to do that, you’ve got to make a judgement call”
Before Spencer, P.J., Vogel, J., and Ortega, J.