Lead Opinion
Opinion
The Legislature has decreed that, when relevant, expert testimony regarding “battered women’s syndrome” is generally admissible in a criminal action. (Evid. Code, § 1107.) We must determine the purposes for which a jury may consider this evidence when offered to support a claim of self-defense to a murder charge.
The trial court instructed that the jury could consider the evidence in deciding whether the defendant actually believed it was necessary to kill in self-defense, but not in deciding whether that belief was reasonable. The instruction was erroneous. Because evidence of battered women’s syndrome may help the jury understand the circumstances in which the defendant found herself at the time of the killing, it is relevant to the reasonableness of her belief. Moreover, because defendant testified, the evidence was relevant to her credibility. The trial court should have allowed the jury to consider
Finding the error prejudicial, we reverse the judgment of the Court of Appeal.
I. The Facts
A. Prosecution Evidence
During the evening of March 28, 1992, defendant shot and killed Albert Hampton in their Fresno home. Officer Reagan was the first on the scene. A neighbor told Reagan that the couple in the house had been arguing all day. Defendant soon came outside appearing upset and with her hands raised as if surrendering. She told Officer Reagan, “I shot him. That’s right, I shot him. I just couldn’t take him beating on me no more.” She led the officer into the house, showed him a .357 magnum revolver on a table, and said, “There’s the gun.” Hampton was on the kitchen floor, wounded but alive.
A short time later, defendant told Officer Reagan, “He deserved it. I just couldn’t take it anymore. I told him to stop beating on me.” “He was beating on me, so I shot him. I told him I’d shoot him if he ever beat on me again.” A paramedic heard her say that she wanted to teach Hampton “a lesson.” Defendant told another officer at the scene, Officer Terry, “I’m fed up. Yeah, I shot him. I’m just tired of him hitting me. He said, ‘You’re not going to do nothing about it.’ I showed him, didn’t I? I shot him good. He won’t hit anybody else again. Hit me again; I shoot him again. I don’t care if I go to jail. Push come to shove, I guess people gave it to him, and, kept hitting me. I warned him. I warned him not to hit me. He wouldn’t listen.”
Officer Terry took defendant to the police station, where she told the following story. The day before the shooting, Hampton had been drinking. He hit defendant while they were driving home in their truck and continued hitting her when they arrived. He told her, “I’ll kill you,” and shot at her. The bullet went through a bedroom window and struck a tree outside. The day of the shooting, Hampton “got drunk,” swore at her, and started hitting her again. He walked into the kitchen. Defendant saw the gun in the living room and picked it up. Her jaw hurt, and she was in pain. She pointed the gun at Hampton and said, “You’re not going to hit me anymore.” Hampton said, “What are you doing?” Believing that Hampton was about to pick something up to hit her with, she shot him. She then put the gun down and went outside to wait for the police.
Hampton later died of a gunshot wound to his chest. The neighbor who spoke with Officer Reagan testified that shortly before the shooting, she
B. Defense Evidence
Defendant claimed she shot Hampton in self-defense. To support the claim, the defense presented first expert testimony and then nonexpert testimony, including that of defendant herself.
1. Expert Testimony
Dr. Lee Bowker testified as an expert on battered women’s syndrome. The syndrome, he testified, “is not just a psychological construction, but it’s a term for a wide variety of controlling mechanisms that the man or it can be a woman, but in general for this syndrome it’s a man, uses against the woman, and for the effect that those control mechanisms have.”
Dr. Bowker had studied about 1,000 battered women and found them often inaccurately portrayed “as cardboard figures, paper-thin punching bags who merely absorb the violence but didn’t do anything about it.” He found that battered women often employ strategies to stop the beatings, including hiding, running away, counterviolence, seeking the help of friends and family, going to a shelter, and contacting police. Nevertheless, many battered women remain in the relationship because of lack of money, social isolation, lack of self-confidence, inadequate police response, and a fear (often justified) of reprisals by the batterer. “The battering man will make the battered woman depend on him and generally succeed at least for a time.” A battered woman often feels responsible for the abusive relationship, and “she just can’t figure out a way to please him better so he’ll stop beating her.” In sum, “It really is the physical control of the woman through economics and through relative social isolation combined with the psychological techniques that make her so dependent.”
Many battered women go from one abusive relationship to another and seek a strong man to protect them from the previous abuser. “[W]ith each successful victimization, the person becomes less able to avoid the next one.” The violence can gradually escalate, as the batterer keeps control using ever more severe actions, including rape, torture, violence against the woman’s loved ones or pets, and death threats. Battered women sense this escalation. In Dr. Bowker’s “experience with battered women who kill in self-defense their abusers, it’s always related to their perceived change of
Dr. Bowker interviewed defendant for a full day. He believed she suffered not only from battered women’s syndrome, but also from being the child of an alcoholic and an incest victim. He testified that all three of defendant’s partners before Hampton were abusive and significantly older than she.
Dr. Bowker described defendant’s relationship with Hampton. Hampton was a 49-year-old man who weighed almost twice as much as defendant. The two had a battering relationship that Dr. Bowker characterized as a “traditional cycle of violence.” The cycle included phases of tension building, violence, and then forgiveness-seeking in which Hampton would promise not to batter defendant any more and she would believe him. During this period, there would be occasional good times. For example, defendant told Dr. Bowker that Hampton would give her a rose. “That’s one of the things that hooks people in. Intermittent reinforcement is the key.” But after a while, the violence would begin again. The violence would recur because “basically ... the woman doesn’t perfectly obey. That’s the bottom line.” For example, defendant would talk to another man, or fail to clean house “just so.”
The situation worsened over time, especially when Hampton got off parole shortly before his death. He became more physically and emotionally abusive, repeatedly threatened defendant’s life, and even shot at her the night before his death. Hampton often allowed defendant to go out, but she was afraid to flee because she felt he would find her as he had in the past. “He enforced her belief that she can never escape him.” Dr. Bowker testified that unless her injuries were so severe that “something absolutely had to be treated,” he would not expect her to seek medical treatment. “That’s the pattern of her life . . . .”
Dr. Bowker believed defendant’s description of her experiences. In his opinion, she suffered from battered women’s syndrome in “about as extreme a pattern as you could find.”
2. Nonexpert Testimony
Defendant confirmed many of the details of her life and relationship with Hampton underlying Dr. Bowker’s opinion. She testified that her father
The evening before the shooting, March 27, 1992, Hampton arrived home “very drunk.” He yelled at her and called her names. At one point when she was standing by the bedroom window, he fired his .357 magnum revolver at her. She testified, “He didn’t miss me by much either.” She was “real scared.”
The next day, the two drove into the mountains. They argued, and Hampton continually hit her. While returning, he said that their location would be a good place to kill her because “they wouldn’t find [her] for a while.” She took it as a joke, although she feared him. When they returned, the arguing continued. He hit her again, then entered the kitchen. He threatened, “This time, bitch, when I shoot at you, I won’t miss.” He came from the kitchen and reached for the gun on the living room table. She grabbed it first, pointed it at him, and told him “that he wasn’t going to hit [her].” She backed Hampton into the kitchen. He was saying something, but she did not know what. He reached for her hand and she shot him. She believed he was reaching for the gun and was going to shoot her.
Several other witnesses testified about defendant’s relationship with Hampton, his abusive conduct in general, and his physical abuse of, and threats to, defendant in particular. This testimony generally corroborated defendant’s. A neighbor testified that the night before the shooting, she heard a gunshot. The next morning, defendant told the neighbor that Hampton had shot at her, and that she was afraid of him. After the shooting, investigators found a bullet hole through the frame of the bedroom window and a bullet embedded in a tree in line with the window. Another neighbor testified that shortly before hearing the shot that killed Hampton, she heard defendant say, “Stop it, Albert. Stop it.”
C. Procedural History
Defendant was charged with murder with personal use of a firearm. At the end of the prosecution’s case-in-chief, the court granted defendant’s motion under Penal Code section 1118.1 for acquittal of first degree murder.
The court also instructed:
“Evidence regarding Battered Women’s Syndrome has been introduced in this case. Such evidence, if believed, may be considered by you only for the purpose of determining whether or not the defendant held the necessary subjective honest [belief] which is a requirement for both perfect and imperfect self-defense. However, that same evidence regarding Battered Women’s Syndrome may not be considered or used by you in evaluating the objective reasonableness requirement for perfect self-defense.
“Battered Women’s Syndrome seeks to describe and explain common reactions of women to that experience. Thus, you may consider the evidence concerning the syndrome and its effects only for the limited purpose of showing, if it does show, that the defendant’s reactions, as demonstrated by the evidence, are not inconsistent with her having been physically abused or the beliefs, perceptions, or behavior of victims of domestic violence.”
During deliberations, the jury asked for and received clarification of the terms “subjectively honest and objectively unreasonable.” It found defendant guilty of voluntary manslaughter with personal use of a firearm. The court sentenced defendant to prison for eight years, consisting of the lower term of three years for manslaughter, plus the upper term of five years for firearm use. The Court of Appeal remanded for resentencing on the use enhancement, but otherwise affirmed the judgment.
We granted defendant’s petition for review.
II. Discussion
A. Background
With an exception not relevant here, Evidence Code section 1107, subdivision (a), makes admissible in a criminal action expert testimony regarding “battered women’s syndrome, including the physical, emotional, or mental
For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. (People v. Flannel (1979)
Although the belief in the need to defend must be objectively reasonable, a jury must consider what “would appear to be necessary to a reasonable
We recently discussed this question in a different context. In People v. Ochoa (1993)
What we said in Ochoa about the defendant’s actual awareness applies to this case. Although the ultimate test of reasonableness is objective, in determining whether a reasonable person in defendant’s position would have believed in the need to defend, the jury must consider all of the relevant circumstances in which defendant found herself.
With these principles in mind, we now consider the relevance of evidence of battered women’s syndrome to the elements of self-defense.
B. Battered Women’s Syndrome
Battered women’s syndrome “has been defined as ‘a series of common characteristics that appear in women who are abused physically and
The trial court allowed the jury to consider the battered women’s syndrome evidence in deciding whether defendant actually believed she needed to kill in self-defense. The question here is whether the evidence was also relevant on the reasonableness of that belief. Two Court of Appeal decisions have considered the relevance of battered women’s syndrome evidence to a claim of self-defense.
People v. Aris, supra,
The court then found the evidence “highly relevant to the first element of self-defense—defendant’s actual, subjective perception that she was in danger and that she had to kill her husband to avoid that danger. ...[']{] The relevance to the defendant’s actual perception lies in the opinion’s explanation of how such a perception would reasonably follow from the defendant’s experience as a battered woman. This relates to the prosecution’s argument that such a perception of imminent danger makes no sense when the victim is asleep and a way of escape open and, therefore, she did not actually have that perception.” (People v. Aris, supra,
Concerned “that the jury in a particular case may misuse such evidence to establish the reasonableness requirement for perfect self-defense, for which purpose it is irrelevant,” the Aris court stated that, “upon request whenever the jury is instructed on perfect self-defense, trial courts should instruct that such testimony is relevant only to prove the honest belief requirement for both perfect and imperfect self-defense, not to prove the reasonableness requirement for perfect self-defense.” (People v. Aris, supra,
In People v. Day (1992)
The Attorney General argues that People v. Aris, supra,
The Attorney General concedes that Hampton’s behavior towards defendant, including prior threats and violence, was relevant to reasonableness (see People v. Minifie (1996)
Contrary to the Attorney General’s argument, we are not changing the standard from objective to subjective, or replacing the reasonable “person” standard with a reasonable “battered woman” standard. Our decision would not, in another context, compel adoption of a “ ‘reasonable gang member’ standard.” Evidence Code section 1107 states “a rule of evidence only” and makes “no substantive change.” (Evid. Code, § 1107, subd. (d).) The jury must consider defendant’s situation and knowledge, which makes the evidence relevant, but the ultimate question is whether a reasonable person, not a reasonable battered woman, would believe in the need to kill to prevent imminent harm. Moreover, it is the jury, not the expert, that determines whether defendant’s belief and, ultimately, her actions, were objectively reasonable.
Battered women’s syndrome evidence was also relevant to defendant’s credibility. It “would have assisted the jury in objectively analyzing [defendant’s] claim of self-defense by dispelling many of the commonly held misconceptions about battered women.” (People v. Day, supra, 2 Cal.App.4th at p. 416.) For example, in urging the jury not to believe defendant’s testimony that Hampton shot at her the night before the killing, the prosecutor argued that “if this defendant truly believed that [Hampton] had shot at her, on that night, I mean she would have left. ...[<][] If she really believed that he had tried to shoot her, she would not have stayed.” Dr. Bowker’s testimony “ ‘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 husband much earlier. Popular misconceptions about battered women would be put to rest. . . .’ ” (People v. Day, supra, 2 Cal.App.4th at p. 417, quoting State v. Hodges (1986)
We do not hold that Dr. Bowker’s entire testimony was relevant to both prongs of perfect self-defense. Just as many types of evidence may be relevant to some disputed issues but not all, some of the expert evidence was no doubt relevant only to the subjective existence of defendant’s belief. Evidence merely showing that a person’s use of deadly force is scientifically explainable or empirically common does not, in itself, show it was objectively reasonable. To dispel any possible confusion, it might be appropriate for the court, on request, to clarify that, in assessing reasonableness, the question is whether a reasonable person in the defendant’s circumstances would have perceived a threat of imminent injury or death, and not whether killing the abuser was reasonable in the sense of being an understandable response to ongoing abuse; and that, therefore, in making that assessment, the jury may not consider evidence merely showing that an abused person’s use of force against the abuser is understandable.
We also emphasize that, as with any evidence, the jury may give this testimony whatever weight it deems appropriate in light of the evidence as a whole. The ultimate judgment of reasonableness is solely for the jury. We simply hold that evidence of battered women’s syndrome is generally relevant to the reasonableness, as well as the subjective existence, of defendant’s
C. Prejudice
Defendant contends that the instructional error unconstitutionally deprived her of her rights to present a defense and to equal protection of the laws, thus requiring reversal unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967)
Under this standard, however, we conclude the error was prejudicial. The jury found defendant guilty of voluntary manslaughter, not murder. Although the verdict may have been based on a finding of provocation, the arguments to the jury and the jury’s request for clarification of the terms “subjectively honest and objectively unreasonable” suggest the question of unreasonable self-defense was critical. The jury likely concluded that defendant actually believed in the need to defend, but her belief was unreasonable. If so, guilt or innocence hinged on the precise issue—objective reasonableness—on which the court told the jury not to consider the battered women’s syndrome evidence. As stated above, the prosecutor argued that defendant’s actions were unreasonable because the last “threat that she says he made was like so many threats before. There was no reason for her to react that way.” The testimony the court told the jury not to consider was directly responsive to this argument.
Although we do not know what weight the jury would have given the expert testimony in determining reasonableness, the testimony “was not only
III. Disposition
The judgment of the Court of Appeal is reversed.
George, C. J., Mosk, J., Kennard, J., and Werdegar, J., concurred.
Notes
Evidence Code section 1107 was adopted in 1991, effective January 1, 1992. (Stats. 1991, ch. 812, § 1.) It currently provides: “(a) In 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.
“(b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on battered women’s syndrome shall not be considered a new scientific technique whose reliability is unproven.
“(c) For purposes of this section, ‘abuse’ is defined in Section 6203 of the Family Code and ‘domestic violence’ is defined in Section 6211 of the Family Code.
“(d) This section is intended as a rule of evidence only and no substantive change affecting the Penal Code is intended.”
People v. Flannel, supra,
We use the term “battered women’s syndrome” because Evidence Code section 1107 and the cases use that term. We note, however, that according to amici curiae California Alliance
This case presents no issue as to when the instructions are necessary because the court did instruct on both perfect and imperfect self-defense. Unlike People v. Aris, supra,
If the prosecution offers the battered women’s syndrome evidence, an additional limiting instruction might also be appropriate on request, given the statutory prohibition against use of this evidence “to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.” (Evid. Code, § 1107, subd. (a); see CALJIC No. 9.35.01 (1996 new)(5th ed. Supp.).)
Concurrence Opinion
I have joined the concurring opinion of Justice Brown, which offers a cogent analysis of the relevance and admissibility of some expert testimony regarding the phenomenon sometimes known as battered women’s syndrome and the extent to which that testimony was relevant to issues in this case. I agree that the trial court erred prejudicially when it instructed the jury that the expert testimony could not be considered in determining the objective reasonableness of defendant’s belief in the need to use deadly force in defense of self. I write separately, however, to emphasize my disagreement with the broad proposition of the majority that expert testimony regarding battered women’s syndrome is “generally relevant” to that issue and therefore admissible without regard to the facts of the particular case or the content of the expert testimony.
I also disagree with the implication in the majority opinion that only the two instructions which the majority consider “appropriate” need be given when expert testimony regarding battered women’s syndrome is admitted. If an instruction limiting jury consideration of all or some parts of the expert’s relevant testimony regarding battered women’s syndrome to a particular issue is requested, the instruction must be given. (Evid. Code, § 355;
Although the majority recognize that all of the expert testimony given here was not relevant to both prongs of perfect self-defense, they fail to
Because I agree with Justice Brown as to the limited relevance of expert testimony about battered women’s syndrome and of the expert testimony admitted in this case, I cannot join the majority in suggesting that, as a matter of law, expert testimony regarding battered women’s syndrome is “generally relevant” to the subjective existence and objective reasonableness of a defendant’s belief in the necessity to use deadly force in self-defense. As Justice Brown explains, some evidence regarding battered women’s syndrome may be relevant in a particular case. And, as is true with all evidence, if an objection is made to introduction of evidence about battered women’s syndrome, the proponent of this evidence bears the burden of establishing its particular relevance. (§ 354, subd. (a); People v. Whitt (1990)
All references to statutes are to the Evidence Code.
Section 355: “When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Italics added.)
Concurrence Opinion
Like Justice Brown, I agree with the majority’s general conclusions but believe the instructional question calls for a
Although not explicitly stated in Justice Brown’s opinion, it follows that in cases not meeting this description—cases, that is, in which the claim of reasonable belief is not dependent on expert testimony as to the nature of a battering relationship—a trial court would not err by giving a limiting instruction of the type suggested in People v. Aris (1989)
I part company from Justice Brown insofar as her analysis depends upon Evidence Code section 801. (See conc. opn. of Brown, J., post, at p. 1095.) Evidence Code section 1107 declares BWS evidence admissible, when offered by the defense, upon a foundation of relevance and proper qualification of the expert witness. The Legislature has thus commanded BWS be treated as a proper subject for expert testimony, whether or not it would otherwise meet the generally applicable test of Evidence Code section 801.
Concurrence Opinion
For years the lower courts, poised precariously upon the slippery slope of personalized defenses, have tried valiantly not to ski down it. Early cases focused on the general admissibility of evidence of battered woman’s syndrome (BWS) to support claims of self-defense. By 1991, with that question answered by legislative fiat, concern shifted to a more nuanced discussion of relevance. Courts found expert testimony admissible to rehabilitate the defendant’s credibility and to explain her subjective state of mind, but not relevant to the jury’s determination of the objective reasonableness of her actions.
Today we hold that “evidence of battered women’s syndrome is generally relevant to the reasonableness, as well as the subjective existence, of defendant’s belief in the need to defend and, to the extent it is relevant, the jury may consider it in deciding both questions.” (Maj. opn., ante, at pp. 1088-1089.) But, this conclusion only begins, rather than ends, the discussion. As always, the devil is in the details.
While I agree with the general conclusions of the majority, concern with the specific application of these principles prompts me to examine more closely the links between the objective component of self-defense and BWS.
The Law of Self-defense
The statutory basis for self-defense, as described in Penal Code sections 197 and 198, permits killing to prevent great bodily injury or death when there is “reasonable ground” to believe such harm is threatened and “imminent danger” of the threat “being accomplished . . . .” (Pen. Code, § 197.) Nevertheless, “[a] bare fear of the commission of [great bodily injury] is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.” (Pen. Code, § 198.)
Accordingly, “self-defense may be analyzed as having two requirements: (1) the defendant’s acts causing the victim’s death were motivated by an actual (also referred to as ‘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 the injury; and (2) a reasonable person in the same circumstances would have had the same perception and done the same acts.” (People v. Aris (1989)
“Justification does not depend upon the existence of actual danger but rather depends upon appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and that the defendant acted out of that fear. [Citations.]” (People v. Clark (1982)
The law thus recognizes that the objective component is not measured by an abstract standard of reasonableness but one based on the defendant’s perception of imminent harm or death. Because his state of mind is a critical issue, he may explain his actions in light of his knowledge concerning the victim. (People v. Davis (1965)
Imminence is a critical component of both prongs of self-defense. A previous threat, unaccompanied by any demonstration of an immediate intention and ability to carry it out, will not justify an assault. The defendant is, however, “entitled to corroborate his testimony that he was in [immediate or imminent] fear for his life by proving the reasonableness of such fear” through evidence of “his own frame of mind.” (People v. Davis, supra,
The General Relevance of BWS
Evidence Code section 1107 makes admissible relevant expert testimony regarding BWS, “including the physical, emotional, or mental effects upon the beliefs, perceptions, or behavior of victims of domestic violence.” The statute further allows that this evidence “shall not be considered a new scientific technique whose reliability is unproven” (Evid. Code, § 1107, subd. (b)), thus legislatively obviating the need to qualify the expert’s testimony under the standards of People v. Kelly (1976)
With respect to psychological states analogous to BWS, such as rape trauma syndrome and child sexual abuse accommodation syndrome, courts, including this one, have generally held expert opinion admissible for the same general reason defendants proffer testimony on BWS; “to disabus[e] the jury of some widely held misconceptions about [the] victims, so that it may evaluate the evidence free of the constraints of popular myths. [Citations.]” (People v. Bledsoe (1984)
The Specific Issue of Objective Reasonableness
The foregoing substantive and evidentiary principles direct the present inquiry: we must identify those aspects of BWS not only sufficiently beyond the ken of the average juror to warrant expert testimony but also specifically relevant to the jury’s determination whether the defendant had “a reasonable belief that [she would] lose [her] life or suffer serious bodily injury unless [she] immediately defended] [herself] against the attack of the adversary.” (People v. Scoggins, supra,
Despite the extensive and vivid, even lurid, details of battering relationships, the literature and published opinions contain relatively limited discussion, even on an anecdotal basis, of BWS directly relating to objective reasonableness. The single most pertinent aspect, which defendant here invokes, is the hypervigilance generated by the cycles of abuse that mark these relationships. As the commentators explain: “[T]he battered woman’s familiarity with her husband’s violence may enable her to recognize the subtle signs that usually precede a severe beating. . . . Moreover, even if the woman kills her husband when he is only threatening her, rather than actually beating her, she knows from past experience that he is not merely making idle comments but is fully capable of carrying out his threats. Thus, the battered woman may reasonably fear imminent danger from her husband when others unfamiliar with the history of abuse would not.” (Kinports, Defending Battered Women’s Self-Defense Claims (1988) 67 Or. L.Rev. 393, 423-424, fns. omitted; Crocker, The Meaning of Equality for Battered Women Who Kill Men in Self-Defense (1985) 8 Harv. Women’s L.J. 121, 141, 143; Walker, Battered Women Syndrome and Self-Defense (1992) 6 Notre Dame J.L. Ethics & Pub. Pol’y 321, 324, 328.) “[E]xperts testify that, because a battered woman is attuned to her abuser’s pattern of attacks, she learns to recognize subtle gestures or threats that distinguish the severity of attacks and that lead her to believe a particular attack will seriously threaten her survival.” (Developments in the Law—Legal Responses to Domestic Violence (1993) 106 Harv. L.Rev. 1498, 1582, fn. omitted.)
In a related vein, researchers also note that “[w]hen a woman kills her batterer, the abuse almost always will have escalated both in frequency and
Judicial analysis reflects the relevance of BWS to the objective component of self-defense. In State v. Kelly (1984)
In People v. Torres (1985)
There is a clear nexus between the phenomenon of hypervigilance and the objective component of self-defense, i.e., the reasonable fear of imminent injury or death and the perceived need to react with the speed and force used. Under settled principles, if the victim’s threats caused the defendant “ ‘to fear greater peril than she would have had otherwise, [the jury may] take such facts into consideration in determining whether defendant acted in a manner which a reasonable person would act in protecting his or her own life or bodily safety.’ ” (People v. Moore, supra,
Although relevant to the objective component of self-defense, BWS evidence is necessarily subject to qualifications and limitations when proffered on that issue. Evidence Code section 1107 is “a rule of evidence only”; “no substantive change affecting the Penal Code is intended.” (Evid. Code, § 1107, subd. (d).) Expert testimony is therefore not relevant until the defendant puts at issue conduct or circumstances the jury might not otherwise understand as the basis for self-defense, i.e., that absent BWS evidence would not be considered reasonable. (See Behr v. County of Santa Cruz (1959)
In other circumstances, however, the situation may be confrontational but lack such overt or obvious potential for serious harm. Nevertheless, in light of her history of battering by the victim, the defendant may anticipate imminent bodily injury or death. Or, following an initial struggle in which she gained a temporary advantage, she may continue to fear the victim because she knows he reacts violently to loss of control or she senses an escalating severity to his violence. “[Where] there has been physical abuse over a long period of time, the circumstances which assist the court in determining the reasonableness of a defendant’s fear of death or serious injury at the time of a killing include the defendant’s familiarity with the victim’s behavior in the past.” (Commonwealth v. Stonehouse, supra,
Although a jury might not find the appearances sufficient to provoke a reasonable person’s fear, they might conclude otherwise as to a reasonable person’s perception of the reality when enlightened by expert testimony on the concept of hypervigilance. The expert evidence thus “is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors’ logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge.” (State v. Kelly, supra,
Nevertheless, the expert must not usurp the function of the jury and reach the ultimate question of reasonableness. (See People v. Aris, supra, 215 Cal.App.3d at pp. 1197-1198.) The concept of hypervigilance is not the evidentiary equivalent of, or substitute for, an actual perception of impending danger, only a possible explanation for the defendant’s reaction to a perceived threat. (Cf. People v. Bledsoe, supra, 36 Cal.3d at pp. 249-251
Finally, since BWS is admissible only narrowly on the issue of objective reasonableness, a limiting instruction is appropriate upon request to “restrict the evidence to its proper scope . . . .” (Evid. Code, § 355; see Daggett v. Atchison, T. & S.F. Ry. Co. (1957)
Application to These Facts
Turning to the facts of this case, for the most part defendant’s account of events leading to the shooting did not require the filter of an expert’s opinion to assist in determining the question of reasonableness. She presented a relatively straightforward claim of self-defense the jury could either accept or reject as such. According to defendant, Hampton had been physically and verbally abusive for most of the year they lived together. His threats and acts of violence had been increasing for several weeks prior to the fateful evening. Although he liked guns and owned several, he had never shot at her until the previous night. On the way home from the mountains the next day, he pointed out what he thought would be a good place to kill her because no
At the same time, defendant also testified to facts implicating characteristics of BWS that correspond to the objective element of self-defense. Consistent with his threats, Hampton began hitting her more frequently when he got off parole. The night before, he was “getting crazy” asking for the gun, which he then shot in her direction narrowly missing her. At that moment, he had a “look on his face” that defendant had seen before “but not this bad”; he “wasn’t the same person.” As to events surrounding Hampton’s death, defendant related that shortly before she grabbed the gun, the two were screaming and arguing; “then all of a sudden, he got quiet for a minute or two, and, then, he just snapped.” A few moments later, he moved from the kitchen toward the gun saying, “This time, bitch, when I shoot at you, I won’t miss.” At this point, she “knew he would shoot me” and was “scared to death” not only because of Hampton’s threats and prior violence but also because of his “very, very heavy” walk indicating he was “mad.” She had no doubt he would kill her if she did not kill him first. As they confronted each other in the kitchen, he “looked crazy.” She assumed he was going for the gun when he reached for her arm and shot him.
As relevant to this testimony, Dr. Bowker explained generally that with the cycles of violence typifying BWS the “severity tends to escalate over time.” Battered women develop a heightened awareness of this escalation as threats and physical abuse become increasingly menacing. A sense of the batterer’s omnipotence due to his dominance may augment this hypervigilance, causing the woman to believe all the more he will act on his threats of violence.
Bowker also discussed some specifics arguably relating to defendant’s objective perception of imminent harm: “[T]he escalation had been such, particularly the night before, where [Hampton] actually shot at her that it would be pretty hard to doubt the seriousness.” “A difference, I think, [between Hampton’s last threat and previous ones] is that [defendant] felt for the first time that he really intended to do it and, you know, my experience with battered women who kill in self-defense their abusers, it’s always related to their perceived change of what’s going on in a relationship. They become very sensitive to what sets off batterers. They watch for this stuff very carefully. [<][] Anybody who is abused over a period of time becomes
This testimony could assist the jury in determining whether a reasonable person in defendant’s situation would have perceived from the totality of the circumstances imminent peril of serious bodily injury or death. Absent the expert’s explanation, the average juror might be unduly skeptical that a look, footstep, or tone of voice could in fact signal impending grave harm or that a reasonable person would be able accurately to assess the need to take self-defensive action on that basis. (State v. Kelly, supra,
Prejudice
Notwithstanding the error, the question of prejudice is extremely close given the “miscarriage of justice” standard of review. (People v. Watson (1956)
As previously recounted, although defendant in many respects presented a traditional claim of self-defense independent of BWS, she also testified to circumstances that but for such evidence might not appear relevant to the objective component. Impliedly directed to disregard Bowker’s testimony that a battered woman “becomes sensitive to the abuser’s behavior,” the jury might not consider whether a reasonable person in defendant’s position would have perceived from Hampton’s “very, very heavy” walk or his “crazy” look an imminent attack or the need to react with deadly force. While not emphasizing the erroneous instruction, the prosecutor did note it to the jury. He argued defendant did not react reasonably by grabbing the gun in response to Hampton’s “[t]his time” threat because the remark was “like so many threats before” and could not be taken seriously, and she had
Other considerations tend to negate prejudice. Defendant made several inconsistent statements to the police shortly after the shooting that undermined her defense. In arguing against a finding of self-defense, the prosecutor did not substantially exploit any circumstances that hypervigilance would have explained as reasonable. Moreover, the instructions included CALJIC No. 5.50 (5th ed. 1988 bound vol.),
On balance, however, the scales tip marginally in defendant’s favor in light of her limited burden of proof. Defendant does not have to prove the homicide was justified; she merely has to raise a reasonable doubt that it might have been. (People v. Pineiro (1982)
George, C. J., and Baxter, J., concurred.
CALJIC No. 5.50 provides: “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of [her] right of self-defense such person may stand [her] ground and defend [herself] by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and such person may pursue such assailant until [she] has secured [herself] from the danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”
Defendant failed to request CALJIC No. 5.51 (5th ed. 1988 bound vol.): “Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in [his] [her] mind, as a reasonable person, an honest conviction and fear that [he] [she] is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing [himself] [herself] in like danger, and if that individual so confronted acts in self-defense upon such appearances and from such fear and honest convictions, such person’s right of self-defense is the same whether such danger is real or merely apparent.” Nor did she ask for an instruction explaining that threats may justify the defendant “in acting more quickly and taking harsher measures for her own protection in the event of assault, whether actual or threatened, than would a person who had not received such threats.” (People v. Bush, supra,