In re  HUDIE JOYCE WALKER

Filed 2/5/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

            ORIGINAL PROCEEEDING on petition for writ of habeas corpus.  Alfonso M. Bazan, Judge.  Relief granted. 

            Latham & Watkins, Beth Collins-Burgard and Daniel Seltzer for Petitioner.

            Bill Lockyer, Attorney General, Robert R. Anderson and Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Respondent.

Fourteen years ago this court rejected Hudie Joyce Walker'scontention the failure of her trial counsel to introduce expert testimony on intimate partner battering and its effects[1] constituted ineffective assistance of counsel, explaining that her lawyer had made a " rational and informed decision on trial strategy " because the evidence would have undermined Walker'sclaim she accidentally shot and killed her abusive husband Thomas Walker while struggling with him for a gun and, in any event, would not have supported a self-defense or imperfect self-defense theory because Walker insisted the homicide was an accident.  (People v. Walker (Nov. 10, 1992, B058840) [nonpub. opn.] (Walker I).)  Accordingly, we held Walker, who was serving a state prison term of 19 years to life for second degree murder, had not demonstrated her trial counsel's performance was constitutionally deficient or, assuming Walker had in fact been subjected to intimate partner battering, there was a reasonable probability introduction of expert testimony on that subject would have resulted in a more favorable outcome at trial. 

Three years after our decision in Walker I, in People v. Barton (1995) 12 Cal.4th 186 (Barton), the Supreme Court disapproved its earlier decision in People v. Wickersham (1982) 32 Cal.3d 307, 329, and held imperfect or unreasonable self-defense " is not a defense but a crime; more precisely, it is a lesser offense included in the crime of murder. "   (Barton, at pp. 200-201.)  However inconsistent the defendant's version of the crime and whatever the arguments of the prosecutor and defense counsel, after Barton to obtain a guilty verdict on a charge of murder, the trial court must instruct the jury the People have the burden of proving beyond a reasonable doubt the defendant was not acting in imperfect self-defense whenever the record contains substantial evidence from which the jury could reasonably conclude the defendant was guilty only of voluntary manslaughter.  (See Barton, at pp. 201-202 [although defendant claimed gun discharged accidentally, jury could reasonably discount this self-serving testimony in light of other evidence concerning defendant's conduct and conclude killing occurred either in unreasonable but good faith belief that defendant had to defend himself or as an intentional act satisfying the elements of murder].)  The following year in People v. Humphrey (1996) 13 Cal.4th 1073, 1086-1087 (Humphrey) the Supreme Court held expert testimony concerning intimate partner battering and its effects, expressly made admissible in criminal actions by Evidence Code section 1107 as of January 1, 1992, was relevant in a murder case to the determination of both the subjective existence and objective reasonableness of a defendant's belief in the need to defend herself or himself. 

In her petition for a writ of habeas corpus pursuant to Penal Code section 1473.5 (section 1473.5), enacted by the Legislature in 2001 for the benefit of individuals like Walker who were convicted of murdering their abusive partners prior to the effective date of Evidence Code section 1107 and the Supreme Court's decision in Humphrey, supra, 13 Cal.4th 1073, Walker asks us to reconsider our decision in Walker I and to find the failure of her trial counsel to introduce expert testimony regarding intimate partner battering and its effects (whether or not a reasonable tactical decision) substantially prejudiced her defense.  In light of the developments in the law since our initial decision in this case, we agree there is a reasonable probability, sufficient to undermine confidence in the verdict, that the result of Walker'strial would have been different (that is, she may have been convicted of voluntary manslaughter rather than second degree murder) had such evidence been presented.  Accordingly, we grant the relief requested, vacate the 1991 judgment of conviction and remand Walker to the Los Angeles Superior Court for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

            1.  Walker'sMurder Trial

                        a.  Trial testimony

            In 1990 Walker, then 48 years old, was charged with the first degree murder of her husband Thomas (Tommy) Walker. The evidence of the events preceding Walker's shooting of Thomas was largely undisputed:  On May 13, 1990, after Walker and Thomas returned home from drinking at a local bar, Thomas pointed a shotgun at Walker and told her, " [T]oday will be your last goddamned day on this Earth. "   Walker fled the house and reported her husband's threat to the Los Angeles County Sheriff's Department.  After trying unsuccessfully to speak to Thomas, Deputy Sheriff Dennis Miller told Walker to stay away from the house until her husband had sobered up and settled down.  He handed her a business card and instructed her to call the number on the card if there were any more problems.  If Walker needed anything from the house, Miller advised her to get it when her husband was not there. 

Walker waited several hours until Thomas had left the house.  After she confirmed Thomas had again gone to a bar, Walker returned to the house to get her clothes, money and blood pressure medicine. 

            According to the People's case, after Walker returned home on the evening of May 13, 1990, she called the number listed on Deputy Miller's business card.  Los Angeles County Sheriff's Detective Joseph Hartshorne answered the telephone.  Hartshorne testified that Walker calmly identified herself, gave her address and then said, " I need help.  I'm going to kill my husband. "   Hartshorne heard no urgency in Walker'svoice.  Walker told Hartshorne she " was tired of it " ; she had a " .25 or something " gun; and, as soon as her husband came through the door, she intended to shoot him.  While he was trying to determine the nature of Walker'sproblem, Hartshorne heard Walker say, in a comparatively rushed tone but without any hint of panic, " He's coming through the door. "  Two or three seconds later, Hartshorne heard a single gunshot.  Other than the gunshot, Hartshorne did not hear any loud noise, a plea for help or arguing.  After the gunshot Walker returned to the phone and in a more " hyper " tone told Hartshorne, " There, I did it.  I shot him " and will " shoot him again " if he gets up.  She also requested Hartshorne call the paramedics.  When the police arrived at the home, they found a .25‑ caliber automatic pistol on the floor along with an instruction manual for the gun.              Teresa Armstrong, a friend of Walker'sdaughter, testified that in April 1990 Walker had revealed " her problems with Thomas " and explained she could not leave him because " there's a lot of money involved. "   According to Armstrong, Walker had said if there were any way she could kill her husband she would.  

            Walker testified in her own defense and insisted the shooting was an accident.  She explained that, as Deputy Miller had instructed, she waited for Thomas to leave the house, then returned to retrieve her blood pressure medicine, intending to stay with her adult daughter at the daughter's home. When she heard her husband arrive home, Walker, recalling Thomas's earlier threat, was afraid and called the number listed on Deputy Miller's card.  Detective Hartshorne told her Deputy Miller was not there.  Walker informed Hartshorne of her husband's earlier threats and told him, " I am afraid.  Please get somebody here.  I know he is going to kill me and I can't get away.  He knows I am here. "   In response to Hartshorne's inquiry whether she had a gun, Walker told him she had a " .25 gauge shotgun that I hid in the closet, " referring to the weapon Thomas had pointed at her earlier. 

            According to Walker, Hartshorne did not seem to understand the urgency of her telephone call; at times it appeared he was preoccupied and not listening to her.  When her husband came in the house, she began to cry and said, " Tommy, I have the police on the phone. "   Thomas responded, " That will be your last fucking phone call, bitch. "   Before she knew it, Thomas had thrown a box on the table.  When the lid popped up and Walker saw the box contained a small handgun, she reached for it, not to use the gun herself but to prevent Thomas from getting it.  Thomas grabbed her hand at the same time, and the gun discharged.  Walker repeatedly insisted she did not intend to shoot Thomas.  After the gun fired, she tried to get Thomas to stand up, but he did not move.  Walker then returned to the telephone, told Hartshorne she had shot her husband and asked him to please call the paramedics.    

            Walker also described in her trial testimony the years of physical and emotional abuse she had suffered during her marriage, explaining that Thomas would become physically and verbally abusive whenever he drank alcohol.  Walker detailed several episodes of domestic violence she had endured and testified she had left Thomas several times, but always returned to him after he promised things would be better and he would curtail his alcohol consumption.

            b.  The trial court's instructions

The trial court fully instructed the jury on first degree and second degree murder and ‑ ‑ notwithstanding the People's argument the killing could only be a premeditated, first degree murder and the defense theory it was accidental, justifiable homicide ‑ ‑ also instructed on voluntary manslaughter, involuntary manslaughter and true (or complete) self-defense, as well as excusable homicide caused by accident and misfortune.  (See CALJIC No. 5.00.)  However, although the court included in its general instruction defining voluntary manslaughter a reference to both sudden quarrel/heat of passion and imperfect self-defense (see CALJIC No. 8.40 [distinguishing murder and voluntary manslaughter]), it provided several additional instructions regarding sudden quarrel, heat of passion and provocation (see CALJIC Nos. 8.42, 8.43, 8.44), but did not give CALJIC No. 5.17 or otherwise explain the imperfect-self-defense theory of voluntary manslaughter.  In particular, the court properly instructed the jury that fear alone is not sufficient to constitute the heat of passion referred to in the law of manslaughter (see CALJIC No. 8.44), but did not further advise the jury that an actual, subjective belief in the need to defend oneself negates malice even if a reasonable person in the same situation seeing and knowing the same facts would not have believed there existed any imminent peril to life. 

            c.  Closing argument

Consistent with their theories of the case, neither the prosecutor nor Walker's counsel addressed at any length the lesser included offenses described in the court's instructions.  The prosecutor dismissed the possibility of a guilty verdict on voluntary manslaughter by telling the jury, " This case is not about manslaughter . . . .  It is about first degree murder or excusable homicide. . . .  The reason it is that, ladies and gentlemen, is because manslaughter doesn't apply.  Voluntary manslaughter doesn't apply.  Certainly, under the People's version, which you're aware of, but even under the defense version because Mrs. Walker at no time does she ‑ ‑ is it her claim that she intended to kill Mr. Walker, that she intended to pull that trigger in fear of imminent peril or self-defense or anything else.  Her claim is that she struggled with him over that gun in that fear but that the gun went off accidentally so that's excusable homicide.  At no time are you being told even by the defense that she intended to kill Mr. Walker.  Therefore, voluntary manslaughter even under the defense version is not present. "

For his part defense counsel focused exclusively on Walker's claim the shooting was accidental, insisting Walker " is not guilty of any crime . . . no lesser includeds.  She's not guilty. "   Defense counsel did not discuss the possibility of the jury finding Walker guilty of voluntary manslaughter because, even accepting the People's theory that Walker had waited for Thomas to come into the house and intentionally shot him, the People had failed to prove she was not acting in the honest, albeit unreasonable, belief Thomas intended to kill her.  Indeed, Walker's trial counsel actually argued her defense of accident (justification) was factually inconsistent with any claim of self-defense.

                        d.  The jury's verdict and sentencing

            On February 11, 1991, after four days of deliberation, the jury found Walker guilty of second degree murder.  The jury also found true the special allegation Walker had personally used a firearm in the commission of the offense.  (Pen. Code, § 12022.5, subd.  (a).)  A supplemental probation report prepared for sentencing stated, " The victim [Thomas Walker] appears to have been an initiator, willing participant, aggressor or provoker of the incident, " and the offense does not appear to be " characteristic of the defendant's [Walker's] behavior.  Indeed, it appears to have been the tragic result of the victim's abusive use of alcohol, and the defendant's inability to get immediate and lasting assistance to enable her to deal with her husband's angry, volatile, hostile and threatening behavior. "   The report concluded, " The court might well find this to be an unusual case, and determine that state prison is not warranted. "   The trial court at sentencing stated Walker was ineligible for probation but observed it would not grant probation even if it had the statutory authority to do so.  The court then imposed an aggregate state prison term of 19 years to life, 15 years to life for the murder plus the middle term of four years for the firearm-use enhancement.

            2.  Walker'sPrior Habeas Corpus Petitions

                        a.  The 1992 state court petition

            In her direct appeal to this court from the judgment of conviction for second degree murder, Walker argued she was denied the effective assistance of counsel " due to her counsel's failure to develop and present battered wife syndrome evidence to support her self defense. "   At the time Walker filed her reply brief she also filed in this court a petition for writ of habeas corpus, which reiterated her claim of ineffective assistance of counsel and which included a declaration from her trial counsel asserting he had been wrong not to present expert testimony on intimate partner battering and now believed it was relevant to her claim she had grabbed for the gun in self-defense.  Trial counsel explained he had been suffering from a serious abdominal infection during the trial and his mind had been primarily on his illness.  The petition also included a psychological report, prepared in May 1992, from Dr. Lenore Walker, a leading expert on the psychological effects of intimate partner battering (see People v. Brown (2004) 33 Cal.4th 892, 899), who had interviewed Walker for 12 hours following her conviction.[2]

            We considered Walker'spetition together with her appeal and, in an opinion authored by Presiding Justice Mildred Lillie, affirmed the judgment and denied the petition, concluding Walker'scounsel had not been constitutionally ineffective under the standard articulated by the United States Supreme Court in Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].  (Walker I, supra, B058840.)  Presiding Justice Lillie explained the decision to forego expert testimony on the psychological effects of intimate partner battering was an inherently tactical one, prompted by Walker'sclaim the shooting had been an accident.  Recognizing expert testimony would have assisted Walker had she claimed she intentionally shot Thomas because she believed he would kill her, and acknowledging such expert testimony may have bolstered Walker'sassertions as to her subjective fear of her husband, we held the testimony was not relevant to Walker'sclaim the shooting was an accident and, as counsel feared, would have undermined Walker'sown testimony as to how the shooting had transpired by suggesting Walker had a motive to murder her husband.  Alternatively, we held that reversal on grounds of ineffective assistance of counsel was not required because, having disbelieved Walker and rejected her claim of accident, there was no reasonable probability the jury would have reached a more favorable result had it heard expert testimony concerning intimate partner battering and its effects.  (Strickland v. Washington, supra, 466 U.S. 668.)[3] 

                        b.  Walker'sfederal court petitions

            On November 23, 1993 Walker filed a petition for writ of habeas corpus in propria persona in the United States District Court for the Central District of California, challenging her conviction on the ground her trial counsel was ineffective for failing to present expert testimony on the psychological effects of intimate partner battering.  On July 19, 1994 the petition was denied without prejudice because it was in improper form.  An amended petition was denied in August 1994 on the ground it was filed after the 20-day period authorized by the July 19, 1994 order.  A new petition filed later that month was denied in May 1996 for failure to exhaust state court remedies.[4]  Walker'ssubsequent petition for writ of habeas corpus to the California Supreme Court was denied on January 28, 1997.

            On March 10, 1997 Walker filed a new petition for writ of habeas corpus in the federal district court alleging ineffective assistance of trial counsel for, among other things, failure to provide expert testimony on intimate partner battering.  On June 30, 1999 the federal district court denied the petition, adopting the findings and recommendations of the federal magistrate, whose reasoning echoed the analysis in our 1992 opinion.[5] 

            3.  The Initial Petition for Writ of Habeas Corpus Pursuant to Section 1473.5

            On September 23, 2003 Walker filed a new petition for writ of habeas corpus in the Los Angeles Superior Court based on section 1473.5, which authorizes the prosecution of a writ of habeas corpus on the ground expert testimony as to intimate partner battering and its effects was not introduced into evidence at the petitioner's criminal trial and, had it been received, " there is a reasonable probability, sufficient to undermine confidence in the judgment of conviction, that the result of the proceedings would have been different. " [6]

            On April 1, 2004 the superior court (Hon. David S. Wesley) denied the petition on two grounds:  First, the court cited section 1473.5, subdivision (c), which provides the denial of a prior habeas petition because the omission of expert testimony relating to intimate partner battering and its effects was not prejudicial is a ground for denial of a section 1473.5 petition.  Second, the court concluded, as had we in 1992 and the federal district court more recently, the " evidence is irrelevant in light of petitioner's claims at trial that she accidentally shot and killed her husband during a struggle for the gun. "  

TO BE CONTINUED AS PART  II………

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