Criminal Appeal

Court of Appeal Deems Failure To Introduce Expert Testimony On Intimate Partner Battering IAC And Grants Habeas Relief

Fourteen years ago, a panel of the Second District Court of Appeal rejected the defendant's contention that the failure of her trial counsel to introduce expert testimony on intimate partner battering and its effects constituted ineffective assistance of counsel. Therefore, it affirmed her conviction for second degree murder of her abusive husband.

Three years later, the California Supreme Court held imperfect or unreasonable self-defense is not a defense but a lesser offense included in the crime of murder. As a result, trial courts must now 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.

The following year, the California 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 light of these developments, defendant filed a petition for a writ of habeas corpus. The Second District Court of Appeal reconsidered its earlier ruling in her case and concluded that 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. The Court of Appeal agreed that there was a reasonable probability, sufficient to undermine confidence in the verdict, that the result of her trial 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, the Court of Appeal vacated the 1991 judgment of conviction and remanded for a new trial.

The unanimous opinion was authored by Presiding Justice Dennis M. Perluss.

In re Walker, no. B190637 (Cal.Ct.App. (2nd Dist., Div. 7) filed 2/5/07)

Confession Voluntary; Expert Testimony on Interrogation Properly Excluded; Intent Evidence Sufficient; Remanded for Resentencing. People v. Ramos, no. B166003 (Cal.Ct.App. (2d Dist., Div. 3) Aug. 27, 2004).

1. Confession Voluntary. The court found the defendant's confession was not the product of an improper promise of leniency. Trial court properly credited officer's version of interrogation in which officer told defendant his cooperation would benefit him in the judicial process and that he would present the fact of the defendant's cooperation to the district attorney for consideration. The court of appeal found that it was proper for the trial court to reject the defense version (which was supported by a police report) that included only the promise of leniency, without any mention of the district attorney's role.

2. No error in exclusion of expert testimony on police interrogation:

[the officer] did not misrepresent the state of the evidence to Ramos, did not subject him to a polygraph examination and did not question him repeatedly over an extended period of time. Thus, as the trial court concluded, the defense failed to demonstrate the need for [Dr.] Leo’s expert testimony. Moreover, the trial court expressly indicated its ruling was tentative and that it would revisit the issue if the evidence adduced at trial suggested Leo’s expert testimony was relevant. Because the jury could understand and evaluate all the evidence presented at Ramos’s trial without the assistance of an expert on police interrogation, we find no abuse of discretion in the trial court’s order excluding Leo’s testimony.

3. Evidence of Intent to Kill Sufficient. Intent to kill element of attempted murder satisfied by evidence that appellant was a gang member, came to party armed with other armed gang members, parked around the corner from the party, ran to front yard when he heard fellow gang member had been in a fight, pulled his gun, aimed it car full of rival gang members, and fired. In finding the evidence sufficient, the court also relied upon expert gang testimony.

4. Minimum Parole Eligibility Term. On Count 1, court imposed life with possibility of parole for attempted murder, plus 10 years and 15 years, respectively, for gun and gang enhancements. This was error, as sentenced should have been a life term with a minimum term of 15 years prior to parole eligibility: "the criminal street gang enhancement found at section 186.22, subdivision (b)(5), requires service of a 15-year term before parole eligibility, not a 15- year enhancement."

5. Consecutive Indeterminate Term Served In Full. On second count of attempted premeditated murder, court imposed life term and enhancements of 1/3 of the 10-year gun enhancement and 1/3 of the 15-year gang enhancement. This was error: "section 1170.1, subdivision (a), which directs that a consecutive subordinate term shall consist of one-third the middle term or one-third of the term imposed for an enhancement, does not apply to indeterminate sentences."

Warning: Summary of Opinion from June (I'm still catching up on a few 9th Circuit Opinions I missed due to vacation.)
Evidence of prior drug smuggling was admissible under FRE 404(b) to rebut duress defense. U.S. v. Verduzco, no. 03-50044 (9th Cir. June 29, 2004).

(1) Evidence of prior drug smuggling was admissible under FRE 404(b) to rebut duress defense. (2) Response to jury question regarding duress defense properly stated the law; (3) No error in exclusion of defense expert on drug culture in Tiajuana. Evidence was excluded for discovery violation, relevance (defendant was experienced in American life), and under Rule 403(b).

Panel: Myron H. Bright (8th Cir.), O’Scannlain, and McKeown

BWS Expert Testimony Admissible As Relevant to Explain Why Victim Recanted or Minimized Violence. People v. Brown, no. S113929 (Cal. Supreme Court, Aug. 2, 2004).

The six-judge majority, in an opinion authored by Justice Kennard, held that expert testimony on BWS "was admissible under Evidence Code section 801, because it would assist the trier of fact in evaluating the credibility of the victim’s trial testimony and earlier statements to the police, by providing relevant information about the tendency of victims of domestic violence later to recant or minimize their description of that violence."

The court did not decide the actual question presented: whether the expert testimony was also admissible under Cal. Evid. Code sec. 1107, which governs the admissibility of expert testimony on BWS, when there is evidence of only a single incident of domestic violence.

Justice Brown dissented, chastising the majority for failing to resolve the split on the section 1107 question and opining that "the evidence regarding BWS was not relevant to any disputed fact—and its admission prejudiced defendant."

Cal. Supreme Court: (1) Statutory Scheme Governing Battery on a Custodial Officer Does Not Violate Equal Protection; (2) "in light of the categorical prohibition on the admission of polygraph evidence in Penal Code section 351.1, the trial court did not err in declining to hold a Kelly/Frye hearing regarding the evidence proffered by defendant." People v. Wilkerson, no. S111028 (Cal.Supreme Court, July 29, 2004).

Opinion Author: Chief Justice George
Concurring & Dissenting Opinion: Justice Kennard (agreeing with majority on polygraph evidence; dissenting with respect to battery issue)

Trial court properly excluded testimony by a defense expert witness regarding the “usual” reactions of trauma victims, which was offered to show the demeanor of one of the minors was inconsistent with having been molested. People v. Wells, no. A099569 (Cal.Ct.App. (1st Dist., Div. 3) Apr. 29, 2004).

Public Defender Dude on Gang Experts: In his first post in almost a month, Public Defender Dude has come out against "the greatest fraud in the criminal courts" (well, "[t]he greatest that [he] can think of right now"): expert testimony by a police officer that a crime was committed on behalf of a gang. As PDD sees it:

What do prosecutors file gang enhancements for? Just about everything a gang member does. So how are they able to make these charges stick, at least until trial (which is all that matters, since once a jury hears someone is a gang member and all the bad things gangs can do, you can bet that they suspend just about all “reasonable doubt” requirements in a case)? Well, they get past preliminary hearing by putting up this gang “expert” who says that just about everything one does is for the benefit for a street gang. Use drugs? It’s for the benefit of the person’s gang (regardless of how active the person may be, they do everything for the benefit of the gang. There is no such thing as an “inactive” gang member in their book). Do a little street robbery for drug money? It’s for the benefit of the gang. Hit your wife, own a gun, fart in public, have a job, drive a nice car, it doesn’t matter, it’s for the benefit of the gang. I am surprised they don’t file jaywalking tickets with gang allegations so that they can give these kids 5 years for spitting on the sidewalk or something of the sort.

Cal.Ct.App.: Mandatory Presumption Requires Murder Reversal

In a 2-1 decision, the California Court of Appeal (2d Dist., Div. 7) reversed a second degree murder conviction for instructional error. The instruction informing the jury that "[a] violation of the basic speed law is the commission of an act inherently dangerous to human life and safety," constituted an impermissible mandatory presumption: "the trial court told the jury, in essence, the second element of implied malice requires proof of an act whose natural consequences are dangerous to human life and proof of a violation of the basic speed law is proof of such an act." Applying the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, the Court found the error prejudicial. Justice Dennis M. Perluss dissented, agreeing there was error, but finding it harmless.
The Court of Appeal rejected the appellant's evidentiary claim, finding that the trial court did not abuse its Evid. Code sec. 352 discretion in granting the prosecutor's motion in limine to preclude the defense from questioning its own accident reconstruction expert about whether in forming his opinion that the defendant was going between 10-20 mph that he considered the report the defense's first, but now deceased, expert.

Justice Earl Johnson, Jr. wrote the majority opinion in People v. Vanegas, no. B165475 (Cal.Ct.App. - 2d Dist., Div. 7).