In re HUDIE JOYCE WALKER
Filed
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re HUDIE JOYCE WALKER, on Habeas Corpus. | B190637 ( Super. |
STORY CONTINUED FROM PART I………
4. The Instant Petition for Writ of Habeas Corpus Based on Section 1473.5
On
Walker also attached her own declaration relating her history of being victimized by Thomas, as well as other men in her life, and asserting, consistent with her trial testimony, she had reached for the gun in self-defense because she feared Thomas was going to use it to kill her and that, when she did, the gun accidentally discharged.
After requesting and receiving informal briefing from the People on the matter, on
DISCUSSION
1. The Admissibility of Expert Testimony on the Effects of Intimate Partner Battering and Section 1473.5
a. The nature and effects of intimate partner battering
The effects of intimate partner battering, frequently, albeit inartfully, referred to as " battered women's syndrome, " [1] have been defined as " ‘" a series of common characteristics that appear in women [or men] who are abused physically and psychologically over an extended period of time by the dominant male [or female] figure in their lives. " ' " (Humphrey, supra, 13 Cal.4th at p. 1084; see also People v. Romero (1994) 8 Cal.4th 728, 735, fn. 1 [the effects of intimate partner battering manifest as " a ‘pattern of responses and perceptions presumed to be characteristic of women who have been subjected to continuous physical abuse by their mate[s]' " quoting Note, Battered Women Who Kill Their Abusers (1993) 106 Harv.L.Rev. 1574)].)
From a legal perspective, evidence of intimate partner battering and its psychological effects can reduce an intentional killing from murder to voluntary manslaughter by negating the element of malice. (Humphrey, supra, 13 Cal.4th at p. 1086 [expert testimony on effects of intimate battering is relevant to support imperfect self-defense ‑ ‑ that defendant genuinely but unreasonably believed she was in imminent danger of serious bodily injury].) Such expert testimony can also support a defendant's theory of justifiable homicide or true self-defense by enabling the jury to find the battered woman or man " ‘is particularly able to predict accurately the likely extent of violence in any attack,' " information that could " ‘significantly affect the jury's evaluation of the reasonableness of defendant's fear for her[ or his] life. [Citation.]' " (Ibid.; see also Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 851.)[2]
b. Evidence Code section 1107
For many years criminal defendants accused of committing violent crimes against their batterers were either denied the ability to use, or did not fully perceive the persuasive force of, expert testimony to assist the trier of fact in understanding the psychological effects of intimate partner battering to negate the malice element of murder. To address that on-going problem, the Legislature added section 1107 to the Evidence Code, effective
In its current form Evidence Code section 1107, subdivision (a), provides, " In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on 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. " [3]
c. Section 1473.5
Recognizing the omission of expert testimony on the psychological effects of intimate partner bartering could have prejudiced criminal defendants tried for committing violent felonies prior to
2. Walker Is Entitled to Relief under Section 1473.5
a. Our discretion to consider Walker'spetition
Although an order granting habeas corpus relief has res judicata effect, an order denying the writ does not. (In re Clark (1993) 5 Cal.4th 750, 773.) Nonetheless, courts ordinarily will not reconsider the merits of issues raised and determined in prior habeas proceedings absent a change in the facts or law substantially affecting the petitioner's rights. (See id. at p. 769 [" ‘It is the policy of this court to deny an application for habeas corpus which is based upon grounds urged in a prior petition which has been denied, where there is shown no change in the facts or the law substantially affecting the rights of the petitioner. [Citations.] . . . .' " ].) This general principle is incorporated in section 1473.5, subdivision (c), which provides " it is grounds for denial " of a new petition under this section if a prior habeas petition has been denied because omission at trial of expert testimony on intimate partner battering and its effects " was not prejudicial and did not entitle the petitioner to the writ of habeas corpus. "
As the superior court found in denying Walker'ssection 1473.5 petition, our 1992 decision affirming Walker'sconviction on direct appeal and denying her concurrently filed petition for writ of habeas corpus asserting ineffective assistance of counsel held not only that the decision of Walker'strial counsel to forego expert testimony on intimate partner battering was inherently tactical ‑ ‑ to avoid putting on an inconsistent defense that would have undermined Walker'sclaim the shooting was an accident ‑ ‑ but also that counsel's tactical decision was not prejudicial. Ordinarily, under section 1473.5, subdivision (c), that finding of lack of prejudice would be a sufficient ground to deny the instant petition.[5]
However, as the Attorney General recognizes, the legislative authorization to deny a section 1473.5 petition on the ground a prior habeas petition was denied for lack of prejudice is permissive, not mandatory. Section 1473.5, subdivision (c), does not state the new petition shall or must be denied on that basis. (See People v. Loeun (1997) 17 Cal.4th 1, 9 [" ‘In interpreting statutes, we follow the Legislature's intent, as exhibited by the plain meaning of the actual words of the law' " ]; see also People v. Farell (2002) 28 Cal.4th 381, 386 [best indication of legislative intent appears in the language of the enactment]; People v. Toney (2004) 32 Cal.4th 228, 232 [" If the statutory language is unambiguous, ‘we presume the Legislature meant what it said, and the plain meaning of the statute governs.' [Citations.] " ].)
Moreover, even if the phrase " it is grounds for denial " were ambiguous (an argument the People do not make), the legislative history materials relating to the various iterations of section 1473.5 reinforce our conclusion as to the permissive nature of the statute. (See Day v. City of Fontana (2001) 25 Cal.4th 268, 274 [" Although we might well stop here since the facts do not appear to raise any ambiguity or uncertainty as to the statute's application, we shall, ‘in an abundance of caution, . . . test our construction against those extrinsic aids that bear on the enactors' intent.' [Citation.] As we shall demonstrate, the legislative history materials reinforce our conclusion that the statute applies to plaintiff's action. " ].) For example, in introducing the legislation that would become section 1473.5, Senator Karnette stated the statute was purposefully directed to those whose prior habeas petitions based on ineffective assistance of counsel were denied in an atmosphere when intimate partner battering and its implications were not well understood: " There is simply no reason to penalize women who had a good defense to killing their abusive spouses simply because at the time their convictions became final, the factual basis for the defense was so little understood that the courts are not willing to fault trial counsel for not presenting it. " (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 799 (2001-2002 Reg. Sess.) as introduced
Thus, in an appropriate case ‑ ‑ and certainly to prevent the injustice identified by the Legislature in enacting section 1473.5 ‑ ‑ we should exercise our discretion to consider the merits of a habeas corpus petition brought for the first time under section 1473.5, notwithstanding the denial of a prior petition based on a finding that counsel's decision to omit the expert testimony neither fell below an objective standard of reasonableness nor was prejudicial.
b. Barton and Humphrey: Clarification of imperfect self-defense as a lesser included offense to murder and the expanded role of expert testimony on battering and its effects
The linchpin for our 1992 opinion holding the tactical decision of Walker'strial counsel not to present evidence of intimate partner battering and its effects was both reasonable and nonprejudicial was the indisputable proposition that such evidence was factually inconsistent with Walker'sdefense that she grappled for the gun and it accidentally fired killing Thomas: " Counsel recognized that on this evidence he could not claim defendant was a battered woman who intentionally shot her husband after years of abuse because she feared that when he came in the door he intended to beat her again, and at the same time argue that she was innocent of any crime because she did not have the gun, during the struggle for the gun it accidentally discharged, she did not pull the trigger and she did not intend to kill [Thomas]. " (Walker I, supra, B058840.) Distinguishing Walker'scase from People v. Aris (1989) 215 Cal.App.3d 1178, 1185 in which the defendant testified she intentionally shot her abusive husband while he was asleep " ‘[b]ecause I felt when he woke up that he was then going to hurt me very badly or even kill me,' " Presiding Justice Lillie explained, " [T]here is in the record no admission by petitioner of the facts necessary to justify evidence of the ‘battered woman syndrome.' This points up the difficulty with petitioner's suggestion that trial counsel on the one hand could have argued she was innocent because the gun accidentally discharged, and on the other, was guilty of voluntary manslaughter (imperfect self-defense) because she intentionally killed him as the result of long years of abuse and she was afraid he would eventually kill her. " (Walker I.)
The premise of our decision ‑ ‑ that it was necessary for Walker herself to testify she intentionally shot Thomas for expert evidence regarding battering and its psychological effects to be admissible in support of an imperfect self-defense theory of voluntary manslaughter ‑ ‑ was refuted by the Supreme Court three years later in Barton, supra, 12 Cal.4th 186. In Barton the defendant fatally shot the victim during a confrontation in a parking lot after the victim had threatened to run the defendant's daughter's automobile off the road. The defendant claimed he had seen a knife in the victim's hand, displayed his own semiautomatic pistol (which he was legally carrying) to hold the victim for the police, but then fired reflexively (that is, accidentally) while stepping backward to avoid the victim's threatening movement. (Id. at pp. 192-193.) On appeal from his conviction for voluntary manslaughter, the defendant argued the trial court had erred in instructing the jury, sua sponte and over his objection, with the lesser included offense of voluntary manslaughter based on evidence in the People's case that a heated argument had preceded the shooting and that he had intentionally shot the victim to defend himself. Disapproving People v. Wickersham, supra, 32 Cal.3d at page 329 (because unreasonable self-defense is a defense and not a lesser included offense, trial court has no obligation to instruct sua sponte on imperfect self-defense), and reaffirming its earlier pronouncements in People v. Sedeno (1974) 10 Cal.3d 703,[6] the Court held that, so long as there is evidence, whether in the People's case or in the defense case or both, from which a jury could infer the lesser included offense of voluntary manslaughter, whether based on heat of passion or imperfect self-defense, the voluntary manslaughter instruction must be given, even when it is inconsistent with the defendant's own theory of the case, and the defendant asks, as a matter of trial strategy, the instruction not be given. (Barton, at pp. 201, 202-204.) In reaching this conclusion, the Court made clear that imperfect self-defense is not a defense at all, but rather a lesser included offense to murder. (See id. at p. 201.)
Barton, supra, 12 Cal.4th 186, thus establishes that, so long as there is substantial evidence from which a jury can find imperfect self-defense and thereby reduce a murder to voluntary manslaughter, the jury must be given that opportunity, even if imperfect self-defense is inconsistent with a defendant's theory of the case and directly at odds with the defendant's testimony describing how the crime occurred. (Id. at pp. 201-202 [jury could reasonably discount defendant's self-serving testimony that gun had accidentally discharged and conclude killing occurred in unreasonable but good faith belief that defendant had to defend himself][7]; see also People v. Breverman (1998) 19 Cal.4th 142, 163, fn. 10 [" substantial evidence of heat of passion and unreasonable self-defense may exist, and the duty to instruct sua sponte may therefore arise, even when the defendant claims that the killing was accidental, or that the states of mind on which these theories depend were absent " ].) Accordingly, if the People have charged the defendant with murder, whatever the defendant's theory of the case and whatever her testimony, evidence that the defendant may have acted in the actual belief in the need for self-defense is relevant; and, if such evidence has been presented, it is the People's burden to prove beyond a reasonable doubt the defendant committed murder rather voluntary manslaughter.
The foundation for our 1992 denial of Walker'shabeas petition on the ground of no prejudice was further eroded the year after Barton by the Supreme Court's decision in Humphrey, supra, 13 Cal.4th at pages 1086 through 1087, which construed Evidence Code section 1107 and held expert testimony concerning intimate partner battering and its effects is relevant not only to the defendant's credibility but also to the determination of both the subjective existence and objective reasonableness of a defendant's belief in the need to defend herself or himself. Thus, even though Walker testified the gun fired accidentally, she also testified that, because of prior beatings by her husband and his threat to kill her earlier that day, she feared for her life when he reentered their home on the evening of
c. A reasonable probability exists that, if presented with the expert testimony on intimate partner battering and its effects, the jury would have found Walker guilty of the lesser included offense of voluntary manslaughter
As discussed, the People's case against Walker rested on its theory, supported primarily by Detective Hartshorne's testimony, that Walker armed herself with a handgun, waited for Thomas to reenter the home and then intentionally shot him. In convicting Walker of second degree murder, the jury disbelieved Walker'sdefense that the shooting was an accident. However, the jury also rejected the People's assertion ‑ ‑ fully supported by the evidence ‑ ‑ that, if the shooting was not an accident, it had to be premeditated murder. Had the jury heard not only Walker'sown description of her years of domestic abuse at the hands of Thomas but also expert testimony as to the effects of intimate partner battering, it may well have found that, while the shooting was intentional, it was the result of a genuine (if not reasonable) fear for her imminent safety. Dr. Walker'sreport explains she would have testified that persons battered by their intimate partners suffer from something akin to post-traumatic stress disorder, which escalates after each beating, such that, whether or not in imminent danger, the battered partner genuinely feels he or she must kill the batterer in order to save his or her own life.[8] Faced with expert testimony that would have directly rebutted the People's theory that Walker did not kill Thomas out of fear and would not have stayed with him had she actually feared him,[9] there is a reasonable probability, notwithstanding the jury's rejection of Walker'saccident theory, the jury would have found her guilty of voluntary manslaughter rather than second degree murder.
DISPOSITION
The 1991 judgment of conviction is vacated, and Hudie Joyce Walker is remanded to the superior court for a new trial.
CERTIFIED FOR PUBLICATION
PERLUSS, P. J.
We concur:
JOHNSON, J. WOODS, J.
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[1] See footnote 1, above.
[2] Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 851 provides in part that expert testimony concerning intimate partner battering and its effects may be considered by the jury â€
