In re Walker

Opinion

Fourteen years ago this court rejected Hudie Joyce Walker’s contention the failure of her trial counsel to introduce expert testimony on intimate partner battering and its effects^[1] constituted ineffective

FACTUAL AND PROCEDURAL BACKGROUND

1. Walker’s Murder Trial

a. Trial testimony

In 1990 Walker, then 48 years old, was charged with the first degree murder of her husband Thomas (Tommy) Walker.^[2] 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, “[Tjoday 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.

Teresa Armstrong, a friend of Walker’s daughter, 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 Hartshome told her Deputy Miller was not there. Walker informed Hartshome 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 Hartshome’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, Hartshome 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

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.) The court’s 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

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

2. Walker’s Prior 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 [ 16 Cal.Rptr.3d 447 , 94 P.3d 574 ]), who had interviewed Walker for 12 hours following her conviction.^[6]

We considered Walker’s petition together with her appeal and, in an opinion authored by Presiding Justice Mildred Lillie, affirmed the judgment and denied the petition, concluding Walker’s counsel had not been constitutionally ineffective under the standard articulated by the United States

b. Walker’s federal 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.^[8] Walker’s

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.^[9]

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.”^[10]

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 corpus 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

4. The Instant Petition for Writ of Habeas Corpus Based on Section 1473.5

On April 28, 2006 Walker filed the instant petition for writ of habeas corpus contending the failure to provide expert testimony as to the psychological effects of intimate partner battering prejudiced her defense and entitles her to a new trial under section 1473.5. As she did in all of her prior petitions, Walker attached to the instant petition the psychological report (prepared in 1992) of Dr. Lenore Walker. Dr. Walker had administered several psychological tests to Walker following her conviction and concluded from those results and her extended interview with Walker that Walker was a “battered woman” who lived for years in an abusive relationship and suffered from “ ‘battered woman syndrome’... a subcategory of post-traumatic stress disorder.” Dr. Walker stated that, had she been called as an expert witness at Walker’s murder trial, she would have testified that women like Walker either are or perceive themselves to be in imminent danger in circumstances like those Walker described.

Walker also attached her own declaration relating her history of being victimized by Thomas, as well as other men in her fife, 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 September 28, 2006 we issued an order to show cause why the requested relief should not be granted. The People filed their return, and Walker filed her traverse.

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,”^[11] have been defined as “ ‘ “a

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 Cal. Crim. Jury Instns. (2006) CALCRIM No. 851.)^[12]

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 ongoing problem, the Legislature added section 1107 to the Evidence Code, effective January 1, 1992, expressly authorizing the admission of expert testimony regarding intimate partner battering and its effects. (See Stats. 1991, ch. 812, § 1, pp. 3612-3613; see People v. Brown, supra, 33 Cal.4th at p. 902 [“trial courts

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.”^[13]

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 January 1, 1992, the effective date of Evidence Code section 1107, in 2001 the Legislature added section 1473.5, authorizing the prosecution of a petition for writ of habeas corpus on the specific ground expert testimony relating to intimate partner battering “within the meaning of Section 1107 of the Evidence Code” had not been received into evidence at trial and there is a “reasonable probability, sufficient to undermine confidence in the judgment of conviction, that the result of the proceedings would have been different” had such expert testimony been introduced. (Stats. 2001, ch. 858, § 1.) California Senator Betty Kamette, in introducing the legislation to add section 1473.5, observed

2. Walker Is Entitled to Relief Under Section 1473.5

a. Our discretion to consider Walker’s petition

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 [ 21 Cal.Rptr.2d 509 , 855 P.2d 729 ].) Nonetheless, courts ordinarily will not reconsider the merits of issues raised and determined in prior habeas corpus 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 corpus 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’s section 1473.5 petition, our 1992 decision affirming Walker’s conviction 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’s trial counsel to forgo expert testimony on intimate partner battering was inherently tactical—to avoid putting on an inconsistent defense that would have undermined Walker’s claim the shooting was an accident—but also that counsel’s

However, as the Attorney General recognizes, the legislative authorization to deny a section 1473.5 petition on the ground a prior habeas corpus 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 [ 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ] [“ ‘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 [ 121 Cal.Rptr.2d 603 , 48 P.3d 1155 ] [best indication of legislative intent appears in the language of the enactment]; People v. Toney (2004) 32 Cal.4th 228 , 232 [ 8 Cal.Rptr.3d 577 , 82 P.3d 778 ] [“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 [ 105 Cal.Rptr.2d 457 , 19 P.3d 1196 ] [“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

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 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ],^[16] 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.)

The foundation for our 1992 denial of Walker’s habeas corpus 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 May 13, 1990. Under Humphrey expert testimony concerning “the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence” (Evid. Code, § 1107, subd. (a)) would have assisted the jury in assessing the nature and extent of that fear and permitted it to properly apply the trial court’s instructions on murder and voluntary manslaughter, including its instructions on imperfect self-defense, to the testimony not only 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 Hartshome’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’s defense 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’s own 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’s report explains she would have testified 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.^[18] 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,^[19] there is a reasonable probability, notwithstanding the jury’s rejection of Walker’s accident theory, the jury would have found her guilty of voluntary manslaughter rather than second degree murder.