In re HUDIE JOYCE WALKER
Filed 3/2/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re HUDIE JOYCE WALKER, on Habeas Corpus. | B190637 (Los Angeles County Super. Ct. No. KA004088) ORDER DENYING REHEARING AND MODIFYING OPINION; NO CHANGE IN JUDGMENT |
IT IS ORDERED:
ORDER DENYING PETITION FOR REHEARING:
Due in part to the fact the materials lodged with Hudie Joyce Walkers petition for writ of habeas corpus contained an incomplete reporters transcript and no clerks transcript from her 1991 murder trial,[1]this courts February 5, 2007 opinion erroneously stated the trial court did not give CALJIC No. 5.17 or otherwise explain the imperfect-self-defense theory of voluntary manslaughter. In his petition for rehearing the Attorney General properly calls this error to our attention, and in particular explains the jury was instructed an actual, subjective belief in the need to defend oneself negates malice, even if a reasonable person in the same situation would not have had the same belief. This order makes the necessary modifications to our opinion to accurately reflect the trial courts instructions.
Contrary to the argument presented in the petition for rehearing, however, that the jury was fully and properly instructed with respect to imperfect self defense reinforces, rather than weakens, our conclusion a reasonable probability exists the jury would have found Walker guilty of voluntary manslaughter, a lesser included offense of second degree murder, if presented with expert testimony on intimate partner battering and its effects. (Pen. Code, 1473.5, subd. (a).) As the Attorney General notes, the instructions available to the jury permitted it to evaluate a theory of imperfect self-defense in the context of Walkers own description of her years of domestic abuse at the hands of her husband Thomas Walker, as well as her testimony her husband had threatened to kill her earlier in the day of the shooting. However, the jury did not hear expert testimony that persons battered by their intimate partners suffer from something akin to posttraumatic 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. Such testimony would have contradicted the Peoples theory Walker did not kill her husband out of fear and may well have led the jury to conclude Walker shot her husband in genuine (if not reasonable) fear for her imminent safety.
The petition for rehearing is denied.
MODIFIFICATION:
THE COURT:
It is ordered that the opinion filed herein on February 5, 2007 be modified as follows:
1. On page 6 under the heading b. The trial courts instructions, the second sentence beginning with However, although the court included in its general instruction is deleted, as is the balance of that paragraph continuing to page 7, and the following is inserted in its place, including footnotes, which will not require renumbering of subsequent footnotes:
The courts general instruction defining voluntary manslaughter included a reference to both sudden quarrel/heat of passion and imperfect self-defense (see CALJIC No. 8.40 [distinguishing murder and voluntary manslaughter]);4 and it provided several additional instructions regarding sudden quarrel, heat of passion and provocation (see CALJIC Nos. 8.42, 8.43, 8.44), as well as explaining 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), and further advised 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 (CALJIC No. 5.17).5
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4 The court instructed the jury, Every person who unlawfully kills another human being without malice aforethought but with an intent to kill is guilty of voluntary manslaughter in violation of section 192 of the Penal Code. There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion or in the honest but unreasonable belief in the necessity to defend ones self against imminent peril to life or great bodily injury.
5 At the time of trial CALJIC No. 5.17 provided, A person who kills another person in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully, but does not harbor malice aforethought and cannot be found guilty of murder. This would be so even though a reasonable man in the same situation and knowing the same facts would not have had the same belief. (CALJIC No. 5.17 (Jan. 1987 rev.) (4th ed. 1979); see People v. Rogers (2006) 39 Cal.4th 826, 882-883, fn. 29.)
2. On page 22, on the fourth line, the term limited is deleted.
There is no change in the judgment.
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PERLUSS, P. J. JOHNSON, J. WOODS, J.
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[1] A footnote to the Peoples return to the order to show cause did include the Attorney Generals request we take judicial notice of our files, including the Respondents brief in Walkers direct appeal from her murder trial, People v. Walker (Nov. 19, 1992, B058840) [nonpub. opn.]. Because neither party properly sought judicial notice of these materials (see Cal. Rules of Court, rule 8.252(a)(1)), we did not rule on the request or consider materials other than those properly filed or lodged in this court.
