Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 181284
Mihara, J.
Penal Code section 1473.5 provides for habeas relief when evidence relating to intimate partner battering and its effects was not received into evidence at trial and the petitioner establishes prejudice. Here, the superior court granted Rena Garnette Alspaw’s petition for writ of habeas corpus under section 1473.5 and vacated the judgment of conviction of first degree murder in case No. 181284. The People have filed a timely appeal. For the reasons stated below, we reverse the order.
All further statutory references are to the Penal Code unless otherwise stated.
Previously referred to as “ ‘battered women’s syndrome, ’ ” “ ‘intimate partner battering and its effects’ ” is the preferred term. (In re Walker (2007) 147 Cal.App.4th 533, 537, fn. 1 (Walker).)
This court has taken judicial notice of its appellate record in case No. H015941. (Evid. Code, §§ 450, 452.)
On August 1, 1996, a jury found Alspaw guilty of first degree murder with a firearm enhancement. The trial court sentenced Alspaw to an indeterminate term of 30 years to life in prison. In February 1998, this court rejected her contention that her jailhouse statements were elicited in violation of her constitutional rights, but remanded the matter for further proceedings on the issue of restitution. In April 1998, the California Supreme Court denied Alspaw’s petition for review. (People v. Alspaw, case No. S068759.)
In August 2006, Alspaw filed a petition for writ of habeas corpus in which she challenged her conviction on several grounds. In November 2006, the superior court requested an informal response from the People on the issue of whether Alspaw was entitled to relief under section 1473.5. After the People filed informal opposition, the superior court issued an order to show cause directing reconsideration by Dr. Nancy Kaser-Boyd of Alspaw’s claim of intimate partner battering. Alspaw was directed to file an amended petition if necessary.
In April 2008, Alspaw filed an amended habeas corpus petition that incorporated Dr. Kaser-Boyd’s findings. The superior court then issued an order to show cause why Alspaw’s conviction should not be vacated based on the allegations in both the habeas petition and the supplemental habeas petition. After the People filed a return and Alspaw filed a traverse, the superior court ordered an evidentiary hearing.
Following the hearing at which Dr. Kaser-Boyd testified, the superior court issued an order granting the habeas corpus petition and vacating the judgment of conviction. The People appealed from the order, and this court issued a writ of supersedeas that stayed enforcement of the order granting habeas relief and vacating the judgment of conviction, as well as all further trial court proceedings, until final determination of this appeal.
II. Statement of Facts
A. Trial Evidence
1. Prosecution Case
On Monday, August 22, 1994, the murder victim Sean Swanson took his girlfriend Christine McCraw to dinner. They then rented a movie and returned to Swanson’s home. During the evening, Swanson was paged approximately 20 times, but he did not return the calls. Sometime between 10 and 11 p.m. while they were watching the movie, McCraw answered Swanson’s phone at his request. Alspaw identified herself and asked to speak to Swanson. McCraw handed the phone to Swanson, who placed it between them “[c]heek to cheek, ” and McCraw was able to listen to the conversation. Alspaw asked Swanson “if he was fucking [McCraw.]... [S]he asked who [McCraw] was, who was the bitch.” Alspaw also asked Swanson “if he still loved her and if he wanted to be with her, ” and insisted “quite a few times” that she wanted to see him that evening. Though Alspaw had “a very bad attitude” and was “antagonistic and rude, ” Swanson remained “very calm and very polite” and eventually hung up. McCraw and Swanson continued watching the movie for approximately 45 minutes. During that time, Swanson received one or two pages, but he did not return them. Swanson then took McCraw home.
Swanson, who was 21 years old when he was killed, was also known as Sean O’Hickey. We refer to him by the name used in the information and in this court’s prior opinion.
Alspaw was 16 years old in 1994.
Alspaw called Swanson’s home between 11:30 p.m. and midnight and spoke with Patricia O’Hickey, Swanson’s mother. O’Hickey told Alspaw that Swanson was not home. Alspaw told her in an angry tone that Swanson was “supposed to be here.” O’Hickey told her that Swanson was taking someone home and “had no intention of coming to see [Alspaw].”
Around 1:00 a.m. on Tuesday, Swanson went to the 7-Eleven store where he was a frequent customer. He told Jim Durnal, the clerk, that he planned to break up with his girlfriend “Rena” that night. He also mentioned that she was out in his car. According to Durnal, Swanson had been talking about breaking up with her for three months. Durnal looked outside and saw Swanson’s girlfriend, whom he recognized from prior occasions, sitting in the car.
Sometime between 3:00 a.m. and 4:00 a.m. on the same day, Art Stein saw a car pushing another car on Clayton Road near the intersection with Mount Hamilton Road. Stein called 911, because the car being pushed was on fire. The car was later found abandoned and was identified as Swanson’s.
On Wednesday, August 24, 1994, Tammy O’Hickey, Swanson’s sister, learned that Swanson had not gone to work the previous day. After contacting the police, she called several of Swanson’s friends, including Alspaw. Alspaw told her that she had not seen him “for weeks.” Alspaw offered to take her to look for him, and they went to several locations.
Later that day, Patricia O’Hickey returned home to find Alspaw rummaging through Swanson’s papers in his bedroom. When O’Hickey asked what she was doing, she replied, “I’m helping you” and “looking for clues.” After Alspaw claimed that Swanson loved her, O’Hickey could not understand why she was there and told her to leave. Alspaw also suggested that Paul, her sister’s boyfriend, might be responsible for Swanson’s disappearance because Paul probably committed a recent burglary at Alspaw’s parents’ home.
The following day, Officers John Salcido and William McClean were assigned to the investigation of Swanson’s disappearance. Officer Salcido learned that someone had attempted to use Swanson’s ATM card to pay $10.25 for gas at an ARCO station at 9:00 p.m. on Tuesday. He also spoke with Durnal, who told him that Swanson had arrived at the store at 1:09 a.m. on Tuesday, withdrew $20 from the machine, and bought a Coke. Durnal told him that “Rena” had been sitting in Swanson’s car. After obtaining additional information about Alspaw, Officer Salcido went to the Blockbuster Video store where she worked.
Alspaw told Officer Salcido that she had spoken to Swanson on Monday, but she had not seen him since the previous Saturday. She also suggested that Swanson had gotten angry, burned his car, and gone to Colorado. Officer Salcido became suspicious, because her statement contradicted Durnal’s recollection that he had seen her with Swanson on Tuesday morning. Officer Salcido left the store and contacted Officer McClean.
Officers Salcido and McClean returned to the Blockbuster Video store to interview Alspaw again. The officers advised Alspaw of her constitutional rights and she repeated her earlier statement. Officer Salcido then told her that an eyewitness had seen her with Swanson early Tuesday morning. She initially denied that she had been with him, but later changed her story. She stated that they drove around for about 45 minutes after they left the store. When Swanson implied that he wanted to have sex, she refused. Swanson became angry and dropped her off at her house at 2:00 a.m. Alspaw also explained why she had initially provided a different version of events. Her relationship with Swanson had ended a few months earlier, and Swanson did not want friends and relatives to know that he had continued to see her because these individuals had said that the relationship was not good. Alspaw wanted to respect Swanson’s wishes.
The officers asked Alspaw when she had last put gas in her car, and she said that she bought about $10 worth of gas at the ARCO gas station. Officer Salcido told her that someone had tried to purchase $10.25 worth of gas at an ARCO station on Tuesday night, and she immediately stated that she had paid cash. Officer Salcido told her that she must have done so because the person using the card did not know the correct access code. Alspaw then volunteered that a person named Robert was with her at the gas station, but she did not know his last name. He was a transient who sometimes spent the night at her house.
After Alspaw was transported to the police station, she indicated that she wanted to telephone her mother Carol Waddington. Alspaw spoke with her mother and agreed to a search of her room on condition that her mother was present during the search. Alspaw also told the police that they would find stolen property in her room from a burglary committed by her friend, Robert Drappo.
Alspaw was legally emancipated from her parents in April 1994.
The police searched Alspaw’s room and found items that had been taken from the Waddington residence, including two boxes of.22 caliber cartridges, and a stun gun. They also found Swanson’s car stereo, flashlight, and camera, as well as a letter addressed to Drappo. Carol Waddington told police that she believed that Drappo was staying at the Children’s Shelter.
The Waddington residence had been burglarized the previous month.
During a subsequent search of Alspaw’s room, her stepfather’s.22 caliber revolver was found.
At about 8:00 a.m. on Saturday, August 27, 1994, Officers Salcido and McClean interviewed Drappo. After the officers told Drappo that Alspaw had told them “everything, ” Drappo cooperated with them and they located Swanson’s body near a trail off Hicks Road in a rural area of Santa Clara County. All the pockets in Swanson’s pants were empty. Officers Salcido and McClean then drove Drappo to his sister’s house where he had left Swanson’s car keys.
After the officers allowed Drappo to speak to Alspaw in an interrogation room for approximately 20 minutes, she gave a statement to Sergeants Michael Sterner and John Lax. Alspaw stated that after Swanson left a message on her answering machine sometime on Monday, she paged him several times and phoned his house at about 10:30 p.m. At that time, Swanson told her he wanted to meet her, and to call back later. Swanson picked her up at her house and they went to the 7-Eleven store at 1:00 a.m. They were going to talk because they had not seen each other for “over a month and a half, ” though she had seen him about a week and a half earlier at the Blockbuster Video store. She returned home at about 2:30 a.m., because he was pressuring her to have sex.
A videotape of this interview was admitted into evidence and played for the jury. A transcript of the interview was provided to jurors to assist them in reviewing the videotape.
During this interview, Alspaw also stated that her relationship with Swanson ended because he was very insecure and jealous. He drove by her house and she asked him why he could not just leave her alone. Sergeant Lax asked her whether Swanson had ever hit her, and she replied, “not really hit me. Just played and joked around.” When Sergeant Lax clarified that he meant a domestic violence kind of hit, she said that “[t]he worst thing he ever did was... when he got too serious was when we were joking around” and he put handcuffs on her. Alspaw also denied that she killed Swanson, burglarized her parents’ home, and was on Hicks Road Monday night.
After the interview terminated, Alspaw was allowed to speak to her mother and stepfather George Waddington. About 10 minutes later, her stepfather left the room and stated that “he could not believe it... she shot him.” Alspaw told her stepfather that Swanson “was trying to attack her up on the hill. He threw the Maglight at her and tried to have sex with her. She kept telling him no. He wanted to have sex with her; she said no. That’s when it happened.”
Sergeant Sterner conducted another interview with Alspaw. During this interview, she stated that she and Swanson had driven to Hicks Road where they left the car and started to walk on a trail. Alspaw had brought a gun “just in case.” Swanson made sexual advances, which she resisted. Swanson was walking two feet in front of her when she pulled out a gun and shot him. Swanson threw the flashlight at her, but he missed. He was kneeling on the ground when she shot him in the head because she “didn’t want him to be in a lot of pain.” She emptied his pockets, took the flashlight, and returned home in his car.
An audiotape of this interview was admitted into evidence and played for the jury. A transcript of the interview was provided to jurors to assist them in reviewing the audiotape.
At home, Alspaw woke up Drappo. Drappo drove Swanson’s car to Mount Hamilton, and Alspaw followed in her stepfather’s car. They removed the stereo, speakers, and CDs from the car, and set it on fire. Alspaw later showed Drappo where Swanson’s body was located. Alspaw also tried twice to use Swanson’s ATM card. Alspaw returned home at approximately 6:00 a.m., slept briefly, and went to work.
Alspaw also stated that, prior to the killing, she and Drappo had discussed disabling Swanson with a stun gun and then shooting him. On the evening of the killing, Alspaw, Drappo, and Swanson drove in Alspaw’s car to Drappo’s sister’s house before Alspaw and Swanson drove to Hicks Road. Drappo tried to stun Swanson in the car, but the stun gun malfunctioned. Drappo told Swanson that he knew it was not charged. When Sergeant Sterner asked her why they had this plan, she stated that they “didn’t really plan it. It just kind of happened on that night.” She further explained that Swanson was harassing her, would not leave her alone, accused her of being a whore, called her a slut, humiliated her, and kept calling her. Though Swanson wanted to work things out, “it wasn’t love.” She “just couldn’t forgive him for” calling her a slut and a whore. Later, she stated that she “was scared that he was gonna touch [her] and find the gun and shoot [her].”
Parviz Pakdaman, a medical examiner at the coroner’s office, conducted the autopsy of Swanson. Swanson had sustained four bullet wounds. One shot caused a superficial wound to the left flank. A second shot entered the upper abdomen below the ribs, passed through the liver and diaphragm, perforated the right lung, and lodged in the back of the chest wall. A third shot entered the right cheek, passed through facial bones, and lodged in the back of the throat. A fourth shot entered the back of the head behind the ear and was found in the brain. The first three shots were front to back; the last shot was back to front. Neither the first nor the third shot would have been fatal. The second shot to the chest and abdomen “was significant but it would not have caused immediate death.” “The fourth one which entered the back of the head... was the one which... caused immediate immobilization and eventually death.”
It was stipulated that Dr. Pakdaman would have testified that neither the chest wound nor the side wound would have interrupted Swanson’s momentum and the facial wound might have caused Swanson to collapse without reacting.
2. Defense Case
Alspaw testified that she shot Swanson in self-defense. She met Swanson when she was about 12 years old. At that time, her boyfriend was Neil Maharaj. After a few months, she lost contact with Swanson. She next saw him in January 1993. However, they got in an argument in March of that year and they stopped seeing each other.
In March 1994, Alspaw was working three jobs. At that time, she and Swanson also became close friends, and she broke up with Maharaj. Alspaw and Swanson then became romantically involved in April. However, they broke up in early June because Swanson was jealous and possessive. He demanded all of her time, eavesdropped on her conversations, and spied on her.
After their relationship ended, they continued to see each other occasionally, but did not have a sexual relationship. During this period, Swanson “followed [her]. He always knew where [she] was, what [she] was doing, who [she] was with, who [she] talked to on the phone, what was said in the phone conversations, whose car [she] had” which made her “feel as if he was invading [her] life.” However, she still wanted to remain friends with him. Between June and August, Swanson called her a “slut” and a “whore.” The week before he died, Swanson and a friend went to the Blockbuster Video store where Alspaw worked. He told her that he missed her and that “things could have worked out” if she had done certain things.
On August 22, 1994, Alspaw worked at two of her jobs and then went to school. At about 9:30 p.m., she paged Swanson “maybe ten” times because he had left a message on her answering machine and he did not always wear his pager. She then called his house shortly after 10:00 p.m., spoke first to McCraw, and then Swanson. Since Swanson had indicated that he wanted to talk, she asked him when he wanted to do so. He told her to call him back in about 45 minutes. She also explained that she asked him if he was “fucking” McCraw because he always asked about her relationships.
Alspaw paged Swanson about 45 minutes later, but he did not call her. She then called his house, spoke to his mother, and went to bed. Drappo was sleeping on her floor. Swanson called at about 12:30 a.m. and said he was coming over. Alspaw, Swanson, and Drappo then went to Drappo’s sister’s house in her stepfather’s car, because Swanson’s car was low on gas and the brakes were bad. However, Drappo’s sister was not home, so they left. As Alspaw was driving them back to her house, Drappo shocked Swanson with the stun gun. Drappo’s act surprised her. Though Drappo had spoken previously about killing Swanson, Alspaw did not take his statements seriously.
When they reached Alspaw’s house, Swanson used the restroom. At that time, Alspaw was aware that Drappo had a loaded gun and she took it from him because he had used the stun gun on Swanson. Alspaw “hadn’t expected him to do that, and [she] didn’t know what he was planning on doing, so [she] didn’t want him to do anything dumb.”
Swanson and Alspaw left in Swanson’s car. They first went to the 7-Eleven store and then drove to Hicks Road. Swanson was “acting different” and “driving recklessly.” She became concerned because he had mentioned that his brakes were not functioning properly. He eventually parked the car, and they sat on the hood and talked. Swanson attempted to put his arm around her, and she backed away and asked him not to touch her. Swanson appeared irritated, and she suggested that they go for a walk on a nearby trail. Swanson was walking two feet ahead of her when “he turned around and reached to put his arm around [her] again.” When she told him not to touch her, he accused her of “playing games” because he thought that they were going to make love. According to Alspaw, Swanson was usually “real calm and controlled, ” but he was “somewhat obnoxious.” Swanson was yelling at her and “had his arm raised like he was going to hit [her] with the Maglight” flashlight. Alspaw was upset because he had never yelled at her before. Alspaw was also “nervous” that he might find the gun and she “was not sure what he was capable of.” As Swanson turned towards her, she was “terrified” and thought she was in danger. She pulled out the gun and shot him. Swanson grabbed himself and said, “Bitch, you shot me.” He started coming towards her and she fired the gun repeatedly. Though it appeared that he intended to throw the flashlight at her, he released it and it went into the bushes. As Swanson was “hunched over and like, kind of walking around not really like walking, taking small steps, ” Alspaw “walked around him and... shot him in the head.” She then rolled him over, emptied his pockets, grabbed the flashlight, and left. She denied that she had intended to shoot him.
On cross-examination, Alspaw could not explain why she used Swanson’s ATM card. She also acknowledged that she told the police that Swanson had thrown the flashlight at her after the first shot, but she did not mention that he had threatened her with it. She explained that she was scared and upset during the interview. Alspaw testified that Swanson had never hit her “on purpose.” She did not tell the police that she shot Swanson in self-defense because Swanson was very close friends with Officer Salcido and other police officers. Consequently, she did not think that they would believe her.
Aleene Reade testified that she dated Swanson in 1990. He was jealous, possessive, and verbally abusive “[a]t times.” He had a “violent temper, ” but was not physically violent towards her. After they separated, he called her several times and drove by her house. She thought he was trying to aggravate her and those around her, but she never believed that he would harm her.
Sara Griefer testified that she dated Swanson in 1992. He was possessive. On one occasion, he grabbed her arm and bruised it. He would be really nice, but then they would fight and he would call her “every name in the book you could think of.” He also drove by her house with a public address system and called her names. However, she never feared for her life.
Stephen Griefer, Sara’s brother, testified that Swanson was jealous “[a]t times, ” but he was not possessive or verbally abusive in his presence. He believed Swanson “had the potential of being violent” based on their conversations. He also described an incident in which he told Swanson to leave his sister alone. Swanson and one of his neighbors then got into a fight. Griefer told Swanson that if he pressed charges, the neighbor would press charges. He eventually convinced Swanson not to press charges.
Dawn Wolfe, Alspaw’s sister, testified that she never dated Swanson. She described him as jealous and possessive. On many occasions, she observed Swanson being verbally abusive to Alspaw, calling her a bitch, a slut, and a whore. Though she had heard that he had been violent, she had never witnessed such conduct.
Neil Maharaj testified that he dated Alspaw from 1990 until April 1994. According to Maharaj, Swanson had violent tendencies. He also described Swanson as possessive, jealous, and verbally abusive.
Dr. Kaser-Boyd testified as an expert in the area of forensic psychology and psychological assessment. She reviewed the police investigation interviews and reports, audio tapes, documents relating to Alspaw’s abuse as a child and her emancipation, letters between her and Swanson, and a report by Dr. Jo Gilbert. She interviewed Alspaw on three occasions for a total of 12 hours. According to Dr. Kaser-Boyd, Alspaw was intelligent, but “emotionally less mature than her IQ.” Alspaw also had a history of child abuse. “There was some intervention by Child Protective Services for harsh physical abuse, and... when she was about 14, she was removed from the home with allegations of sexual abuse.”
Dr. Kaser-Boyd administered five tests to Alspaw: the Minnesota Multiphasic Personality Inventory (MMPI-2); the Millon Adolescent Personality Inventory (MAPI); the Millon Clinical Multiaxial Inventory (MCMI-III); the Rorschach Psychodiagnostic Technique (Rorschach); and the Thematic Apperception Test (TAT). Alspaw’s score was within normal limits on the MMPI-2. The MAPI revealed “a person who had a lot of issues surrounding acceptance from peers and love and abandonment.” Alspaw’s scale on the MCMI-III was elevated on posttraumatic stress disorder, anxiety disorder, and bipolar manic disorder. Alspaw was also elevated on several personality scales, including paranoid borderline personality, avoidance tendencies, depressive tendencies, narcissistic tendencies, passive-aggressive tendencies, and self-defeating tendencies. Regarding the Rorschach, Alspaw did not have any “test signs in common with people with anti-social personality disorder.” This test also revealed a person with “very low self-esteem, a lot of painful feelings when she looks at herself, a lot of confusion about human relationships... good capabilities, but her emotional problems outstrip her resources for coping with the problems.” The TAT “captured the kinds of feelings she has about close people in her world, ” that is, “loving them, some fear, some mistrust.”
Dr. Kaser-Boyd diagnosed Alspaw with posttraumatic stress disorder. She explained that posttraumatic stress disorder is “a set of symptoms that come about from the experience of either a one-time, life-threatening trauma or chronic continuing threats to safety. And the symptoms, there’s a set of symptoms that can resemble mental disorders, but if we know there is a history of trauma then the most accurate diagnosis is post-traumatic stress disorder.” Dr. Kaser-Boyd gave her opinion that “in the weeks prior to the homicide [Alspaw] was feeling overloaded with emotions from the deterioration of her relationship with [Swanson]. She was feeling harassed. She was feeling that he was out to destroy her life. There was one thing that he did that upset her a lot and that was to tell her surrogate mother, a woman named Jan, some bad things about her that made Jan much more skeptical of her and apparently threatening to cut off the relationship with [Alspaw] too.” Alspaw “also felt that she was being stalked, and she felt that [Swanson] was threatening to make her look bad at her new job at Blockbuster. That kind of pressure in a person with her existing mental disorder was causing her to decompensate and to have the emotional feelings be very raw and near the surface, and that... was in existence right up to the time of the shooting. There were a lot of feelings about [Swanson] and what he was doing to her. [¶]... [¶]... People who have been in families where there was neglect or abuse or something direct like sexual abuse or physical abuse tend to become very confused about close relationships. They want them, but they fear them at the same time. And they definitely feel people who say they love you can hurt you.” Dr. Kaser-Boyd further explained that Alspaw’s posttraumatic stress disorder could “definitely” have affected her perceptions at the time of the homicide. “When people are feeling overwrought mentally and having a flood of emotions including a fear and sense of betrayal and hurt, they may not process reality very accurately. They may become paranoid... or exceptionally frightened....” The perception of people with posttraumatic stress disorder may become “distorted at times of threat or pressure.”
Dr. Kaser-Boyd did not diagnose Alspaw as suffering from battered women’s syndrome. However, she did diagnose her as having battered child syndrome, noting that such an individual would have “symptoms similar to a battered women’s syndrome or any post-traumatic stress disorder where there has been threat to safety and distortion of relationships with humans.”
3. Rebuttal
Tammy O’Hickey testified that Swanson did not appear to be possessive, jealous, or controlling with Alspaw or his other girlfriends. She saw Alspaw slap Swanson on one occasion.
Patricia O’Hickey testified that Swanson would treat Alspaw and his other girlfriends “very well, ” though he “might use a name or two.” She also observed that “when they were mad” Alspaw would hit Swanson, but she never saw him hit her.
Officer Salcido testified that he and Swanson were friends. During the summer of 1994, they would talk approximately every other day. Swanson did not appear to be obsessed with Alspaw.
B. 1995 and 1996 Psychological Evaluations
1. Dr. Gilbert’s Evaluation
In 1995, Dr. Gilbert evaluated Alspaw to determine her amenability to treatment in the juvenile justice system. Alspaw reported that her father got drunk and beat her mother, and that her parents separated when she was two. Shortly thereafter, her mother became involved with George Waddington, whom she married five years later. George Waddington “spanked [Alspaw] with a belt or slipper, often until bruised.” When Alspaw was six, she and her sister were removed from the Waddington home for one week. However, after they returned to the home, the abuse resumed. Her stepbrother Oscar sexually abused her when she was six or seven. He fondled her when she sat on his lap. Beginning in third grade, her mother would call her a “slut” or a “fucking whore, ” which made her “very upset.” When she reached puberty, her stepfather would wrestle with her and “end up on top of her.” He also grabbed her as she emerged from the shower. When she was in the eighth grade, she was removed from the home based on allegations of sexual abuse by her stepfather. Though the allegations were not sustained, she did not return to the home. Alspaw was in foster care for six months until her foster mother “kicked her out.” She then moved to a shelter, and eventually rented a room in December 1993.
Based on various tests and her interview with Alspaw, Dr. Gilbert concluded that Alspaw was “an emotionally immature, needy girl, who has been traumatized by her abuse and pushed toward premature self-sufficiency. [¶] [She] is not mentally ill/disordered, nor is she antisocial.” In Dr. Gilbert’s view, she was “an excellent candidate for rehabilitation.”
2. Dr. Kaser-Boyd’s Evaluation
In 1996, Dr. Kaser-Boyd evaluated Alspaw to determine her mental state when the homicide occurred. She reviewed Dr. Gilbert’s report, conducted various tests, and interviewed Alspaw. Alspaw provided additional information about the physical abuse by her stepfather, who would “ ‘sock [her] like he would a man.... [She] would just squeeze her eyes shut and go someplace else.’ ” She also told Dr. Kaser-Boyd that while Maharaj was her boyfriend she heard from a friend, Sarah, that Swanson had been arrested for torturing animals. “ ‘[She] didn’t know anything about that. [She] read the police reports about it, but [she] didn’t know anything about it. Sarah said he raped her, too.’ ” Swanson “ ‘went to jail for the cat thing. [She didn’t] know if he actually did it. He pled guilty and they dropped two other charges.... [She] didn’t pay much attention.’ ”
Regarding Swanson’s behavior towards her, Alspaw stated that he was very jealous of Maharaj. He tapped into her phone and listened to conversations. He also accused her of having sex with others and called her a “slut” when he was angry. She described the incident with handcuffs. “ ‘I was standing on his bed kissing him, and the next thing I knew he had me handcuffed, and he really wanted me to have sex with handcuffs on, and I said, ‘No, take these off, ’ and I started getting really scared, and I was angry and scared, but he wouldn’t, and finally I had to talk nice, like, ‘Take them off and sex will be even better, ’ and he finally took them off, and I kneed him in the groin and made him take me home. That was the first time I felt really scared of him.’ ” Alspaw stated that Swanson was “alternately nice and scary” between June 4 and August 22, 1994. He harassed and stalked her. On one occasion, he was so obnoxious to her while she was at work that the manager asked him to leave. Alspaw also explained that she and Drappo broke into her parents’ home because he wanted to take her stepfather’s gun and become a drug dealer. She participated in the burglary because her parents would not allow her to return home and she was “feeling hurt.”
Dr. Kaser-Boyd told Alspaw: “ ‘You’ve told me that you were fearful of [Swanson] and that you felt he would never leave you alone and that he had ruined your life, that makes you similar to a battered woman, or an abused person who feels controlled and damaged and kills to protect themselves, but battered women don’t usually finish their spouse off with a bullet in the head, hide the body, burn the car, and use the credit cards after that, ’ ” and they do not rob their spouses after the killings. In response, Alspaw blamed Drappo for the robbery, asserted that she shot Swanson in the head to prevent further suffering, and explained that she felt Swanson was “laughing at [her]... that he set all this up to hurt [her].” Alspaw also stated: “ ‘[Swanson] hurt me so much so many times. He didn’t understand because of him I hurt every day of my life. He did so many things to hurt me. Yes I was mad, that I lost a friendship because of sex. I was sad and I was hurt. I can’t explain what I did for him to call me a slut. It hurt so much... when I was with him I would remember that he called me a slut. It stuck with me and stuck with me. And he talked a lot of shit to [Maharaj’s] parents, and when [Maharaj’s] family said I wasn’t welcome at their house anymore, that was another push over the edge. They were like my family. I didn’t really have my own family. Yes, I felt rage, thinking he could hurt me. Not that he would die. I never imagined him dead.... It was like, ‘What could I do to hurt him?’ It seemed like nothing could hurt him, and I wanted him to leave me alone.... He didn’t understand that I could never trust again because of him. I told him so much, trusted him so much, and he turned on me, and I have no one else. And then he took my second family from me, and he would keep popping up at my job and phoning me, it was like the hurt would never be over. I was getting pricked again and again.’ ”
Dr. Kaser-Boyd concluded that, as a result of sexual and physical abuse, Alspaw “was threatened with the loss of what little security she had built for herself” when she killed Swanson. Alspaw responded to Swanson’s termination of their relationship, his involvement with another girlfriend, and his destruction of her reputation with “narcissistic rage.” “When she pulled the trigger, she was filled with a complicated mix of emotions engendered by the highly dysfunctional relationship with [Swanson] and over a month of emotional turmoil from breaking up, and, in her words, [Swanson’s] attempts to destroy her world.”
C. Dr. Kaser-Boyd’s 2008 Psychological Evaluation and Testimony at Habeas Corpus Proceedings
Dr. Kaser-Boyd reevaluated Alspaw in December 2007, prepared a report in March 2008, and testified at the evidentiary hearing in the habeas corpus proceedings. When the superior court asked whether she had “a distinct recollection of this particular individual, ” Dr. Kaser-Boyd responded that she did because Alspaw was “probably the only teenager that [she] evaluated for Battered Woman Syndrome during that phase of [her] career.” Though she concluded in 1996 that Alspaw did not suffer from batter women’s syndrome, she changed her opinion based on developments in research on intimate partner battering. Dr. Kaser-Boyd focused on several topics in reaching the current diagnosis.
The report was admitted into evidence at the hearing.
1. Child Abuse
In 1996, Dr. Kaser-Boyd was aware that Alspaw had suffered an abusive childhood. However, Alspaw provided her in 2007 with additional details regarding her father’s physical and sexual abuse of her mother, the sexual and physical abuse by her stepfather, and the failure of her mother to protect her. According to Dr. Kaser-Boyd, “research that has occurred on battered women in the last ten years has clarified the important role of experiencing or witnessing violence in the formation of the personality traits and behaviors that cause a person to be an adult victim of interpersonal violence.”
Dr. Kaser-Boyd testified that she learned in 2007 that Alspaw had “significantly more and earlier child abuse” than she had been originally told. When Alspaw was less than two and a half years old, she saw her father shove her mother into the bathtub and break two ribs. On another occasion, she walked into their bedroom and “he was on top of her and he was raping her.” Alspaw disclosed additional details in 2007 regarding sexual abuse by her stepfather, including that she would get “on his lap and he had her put his hand in his pants and touch his penis and testicles.” Alspaw also provided more information about the verbal and physical abuse by her mother and its effect on her. Dr. Kaser-Boyd explained that “as a teenager she talked about these things, but her dominant affect was sort of rebellious, alienated from parents. Whereas, in 2007 she was more able to talk about more emotion and how damaged she felt from that. [¶] So it wasn’t that she was coming up with new facts.... It’s more she -- she is more able to understand the impact on her now that she’s older.”
Dr. Kaser-Boyd acknowledged that in 1996 she had connected Alspaw’s early abuse and her relationship with Swanson, but “the grouping together of the symptoms from that into what looks like a personality disorder, with the anger and the poor impulse control, that material came out in the late ‘90s.” She also pointed out that the “[n]ew abuse experiences add to early abuse experiences, making the effects more intense than if the person has only experienced abuse in the relationship at hand.... [¶]... [¶] While [she] could have given [her] clinical opinion about how Ms. Alspaw’s early abuse and the effects of abuse by [Swanson] were cumulative, [she] had no body of scientific literature to cite in expert opinion in 1996. But this now exists.” Though Dr. Kaser-Boyd had diagnosed Alspaw as suffering from “battered child syndrome” and posttraumatic stress disorder in 1996, she now concluded that Alspaw suffered from chronic or complex posttraumatic stress disorder, which describes the cumulative effect of early abuse and multiple types of abuse.
2. Stalking
In 1996, Dr. Kaser-Boyd described Swanson’s jealousy, obsessiveness, and stalking. She explained, however, that “[t]he psychological effects of stalking were not well researched at the time of [Alspaw’s] evaluation and trial. [¶]... This means at the trial [she] had no scientific literature on which to rely about the psychological effects of stalking, and would have had to rely solely on [her] clinical experience about the typical psychological effects on a victim of stalking.” Relying on two peer-reviewed articles, Dr. Kaser-Boyd stated that research indicates victims of stalking experience “a high level of fear. They feel overwhelmed and trapped, and they fear that nothing will stop the man stalking them.” Though Alspaw reported these feelings in 1996, “[s]he has a lot more to say about this point now, with many insights that have arisen as part of her maturation.”
Dr. Kaser-Boyd relied on the psychological definition of stalking as “[o]bsessional, unwanted, intrusive following and calling, or contacting friends, showing up at work, that is either meant to keep in contact with the victim or to control or coerce her.” Victims of stalking are often forced to change jobs or abandon their work and to stop interacting socially for fear of encountering the stalker. They also suffer from sleep disturbances. Dr. Kaser-Boyd acknowledged that Alspaw did not suffer from these symptoms. According to Dr. Kaser-Boyd, it is not inconsistent with a claim of being stalked when a woman pages her stalker 10 to 15 times in one evening. She explained that “a woman being stalked is often trying to manage the mood of the person stalking her. She’s trying to mollify him or try to figure out what he wants when he makes contact. She has a lot of anxiety. Paging him excessively, she is trying to figure out what he wants, what he’s thinking because she’s afraid of what he is going to do next.” Dr. Kaser-Boyd explained that none of Alspaw’s friends reported her being anxious about Swanson’s behavior because “her anxiety got converted into anger pretty quickly... [m]ore of a rebellious girl than a, you know, wallflower, passive, scared girl.”
Less than 10 percent of the murder cases that Dr. Kaser-Boyd had worked on had no violence but a lot of threats “by a very crazy guy and often stalking.” She had never found battered woman’s syndrome where there was no violence and no threats of violence. Dr. Kaser-Boyd included stalking as a form of violence based on the literature of the last 13 years. She noted that “the threat of handcuffs, ... even though she was able to get out of that situation, is violence.” Violence would also include “psychological abuse, which can be name-calling, such as ‘bitch’ and ‘whore’ and ‘slut’; blaming a woman for things; actual threats of violence, like, ‘If you do this, I’ll kill you’ or ‘I’ll kill your mother.’ That’s all usually called ‘psychological violence’; sexual violence; and then physical violence.” She acknowledged that she had never been involved in any other case where a victim of intimate partner battering killed as a result of stalking. However, she relied on two articles that found that victims of stalking develop posttraumatic stress disorder “just like victims of physical assault.” She conceded that her report and notes did not discuss that stalking made Alspaw fear for her life, but he was “destroying her world.” Her motivation in killing Swanson was the result of “all the verbal abuse; the feeling trapped; that he wouldn’t leave her alone; that he was always going to be there; and that he was going to destroy her world, which included” Maharaj’s family. She explained that Alspaw experienced “incredible anger from all of the wounding and fear that went on. And then, on Hicks Road, something elevated that to a level of intense fear.”
In 1996, Dr. Kaser-Boyd knew that Swanson had engaged in stalking behavior with his other girlfriends. However, in 2007, she also learned additional details and that these girlfriends had testified about Swanson’s behavior. In her view, this corroborated what Alspaw had experienced, thus creating a pattern of behavior.
3. Abuse of Animals
In 1996, Dr. Kaser-Boyd did not have the police reports on the nature and extent of Swanson’s torture of animals. She believed that the trial court had ruled this evidence was inadmissible, and thus she was not allowed to testify that “animal cruelty is an extremely pathological sign.” In her view, it was not necessary for Alspaw to have had knowledge of the full extent of Swanson’s conduct when she killed him because “she was experiencing the vulnerable animal’s side of the perpetrator-to-victim dynamic, feeling trapped and overwhelmed.” According to Dr. Kaser-Boyd, Alspaw “is much better able to articulate these feelings now, as the result of some prison therapy and considerable self-reflection, and [Dr. Kaser-Boyd is] much more clear about the dynamics, with ten additional years of study and experience. [Alspaw’s] summaries of research on the perpetrators of cruelty to animals is not junk science, and there is a clear tie to the dynamics of perpetrators of domestic violence.”
Alspaw attached various exhibits to her habeas petition, including articles that discussed the connection between cruelty to animals and violence towards humans.
Regarding Swanson’s “unspeakable acts towards defenseless animals, ” Dr. Kaser-Boyd stated that “if you hear someone has done X, Y, or Z to someone else, it’s definitely in the back of a battered woman’s mind, even if she’s not paying full attention to it.” Dr. Kaser-Boyd explained that “the torture of animals is usually a precursor to violent aggression with human beings. It usually starts young in life, and by the time someone is an adult they’ve transferred their sadism to human beings.... [¶]... There’s something intoxicating to these people to have power and control over other people. And, lo and behold, that’s what stalking is about also.” She acknowledged that in 1996, Alspaw was “quite clear that she’d heard about this cat situation, but... she wasn’t paying much attention to it.” However, after Alspaw researched people who abuse animals, she “had come to understand [in 2007] why she felt trapped and tortured, because that was the dynamic he was expressing with animals.” Dr. Kaser-Boyd explained that “had [she] been aware of the newer stalking literature and what it says about the effects on women of being stalked, [she] would have been able to make the connection in the courtroom between what he was doing to her and what he was doing to animals.” In her view, “if [Swanson] became angry about her unwillingness to have sex with him and was swinging the Maglite at her, [she thought] it [was] entirely possible that her instinct told her this was a very dangerous guy... even if she minimized” his abuse of animals.
4. Intimate Partner Battering
Based on advances in research, Dr. Kaser-Boyd concluded that Alspaw was suffering from the effects of intimate partner battering when she committed the homicide. “The emotional state that encompasses these ‘effects’ included a mix of emotions such as profound vulnerability, desperation, anger, and fear.” Dr. Kaser-Boyd explained that she did not find battered woman syndrome in 1996 because she “was operating on a more narrow framework and definition.” “At that time we really were thinking of a woman who lived with her batterer, or she was economically deprived and controlled; a woman who was kept from making phone calls or seeing friends. [¶] There was a whole set of things that went with Battered Woman Syndrome at that time. In the intervening years, there’s just been a lot of literature that has added to our understanding of who can be coerced and controlled and frightened, ” and thus suffer the effects of intimate partner battering.
Dr. Kaser-Boyd noted the factors that led to her conclusion in 1996 that Alspaw was not suffering from battered woman’s syndrome, that is, going alone with him to Hicks Road, robbing him, shooting him in the head when he was down on his knees, and returning to visit the body. However, since that time there has been more literature that one of the effects of intimate partner battering is anger. According to Dr. Kaser-Boyd, “the complex [posttraumatic stress disorder] diagnosis makes it clear that someone who has been through the multiple acts of abuse and neglect can look like a person who has anti-social personality disorder.” She also acknowledged that most battered women turn themselves in and grieve after killing their victims, which Alspaw did not do.
In 2004, Dr. Kaser-Boyd conducted a study of women who kill and the level of violence that they experience from their abusers. All of the battered women who killed their abusers had experienced extreme forms of violence, including having been shot, strangled to unconsciousness, been the victims of attempted murder or attempted drowning, burned, cut with a knife, choked, raped or violently sexually assaulted, or threatened with death to herself or a loved one. She conceded that Alspaw had not experienced this level of violence.
D. Superior Court’s Ruling
The superior court found “Dr. Kaser-Boyd to be a persuasive witness and her expert testimony to be of such solid value as to undermine confidence in the judgment of conviction.” Her “determination that [Alspaw] suffered from Chronic/Complex Posttraumatic Stress Disorder, and IPB, appears amply supported. The stalking, harassment and intimidation perpetrated by [Swanson] would understandably be interpreted and filtered through the lens of the prior abuses and degradations Petitioner suffered. Petitioner was only 16 years old at the time of the crime and was more vulnerable than a child of even that youth given the prior victimization she had endured. Also of significance in this dynamic is [Swanson’s] prior criminal conduct, leading to felony convictions under docket 159638, which would be compelling EC § 1103(a) evidence. This evidence of [Swanson’s] character for violence was excluded by the trial court. As Dr. Kaser-Boyd explained: ‘[Swanson] displayed exceptionally pathological potentials. The records I now have document unspeakable acts towards defenseless animals. It is difficult to see how this is not relevant to the effect he had on a teenage girl from an abusive background. Even if she had only a minimal awareness of his abuse of animals, his personality and pathology was impacting her.’ [¶]... Pursuant to PC § 1473.5 it now appears that Petitioner would be entitled to assert, and support, the related imperfect self defense claim with proof of IPB and the victim’s prior history of violent and sadistic acts under Evidence Code § 1103(a).” The superior court granted the petition for writ of habeas corpus and vacated the judgment of conviction.
III. Discussion
Expert testimony on the effects of intimate partner battering may be relevant to assist the jury “ ‘by dispelling many of the commonly held misconceptions about battered women.’ ” (People v. Humphrey (1996) 13 Cal.4th 1073, 1087 (Humphrey).) In 1991, the Legislature enacted Evidence Code section 1107 to address the admissibility of such evidence. Former subdivision (a) of that section provided in relevant part that “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....” (Stats. 1991, ch. 812, § 1, pp. 3612-3613.) The purpose of this statute was “ ‘to ensure that all relevant evidence is admitted in a criminal case. Although there is case law that suggests that this testimony should be admissible, the great majority of judges exclude it. The measure is merely intended to allow a jury to consider all evidence in a particular case.’ ” (Walker, supra, 147 Cal.App.4th at p. 547, quoting Assem. Com. on Public Safety, Rep. on Assem. Bill No. 785 (1991-1992 Reg. Sess.) as introduced Apr. 9, 1991.)
Evidence Code section 1107 currently provides that “[i]n 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 acts or acts of abuse which form the basis of the criminal charge.” (Evid. Code, § 1107, subd. (a).) Both the previous and current versions of this statute incorporate the definitions of “ ‘abuse’ ” and “ ‘domestic violence’ ” outlined in the Family Code. (Evid. Code, § 1107, subd. (c).) These definitions include “stalking, ... harassing, telephoning, ... disturbing the peace of” the victim. (Fam. Code, §§ 6203, 6320.) “ ‘Domestic violence’ is abuse perpetrated against, ” among others, a person with whom the abuser has or previously had a dating relationship. (Fam. Code, § 6211.)
In 2001, the Legislature enacted section 1473.5 to provide habeas relief for defendants who had suffered the effects of intimate partner battering and had been convicted or pleaded guilty prior to January 1, 1992, which was the effective date of Evidence Code section 1107. (Walker, supra, 147 Cal.App.4th at p. 548, fn. 14.) Section 1473.5 provides that when “expert testimony relating to intimate partner battering and its effects, within the meaning of Section 1107 of the Evidence Code, was not received in evidence at the trial court proceedings relating to the prisoner’s incarceration, and is of such substance that, had it been received in evidence, there is a reasonable probability, sufficient to undermine confidence in the judgment of conviction, that the result of the proceedings would have been different, ” a defendant may prosecute a petition for writ of habeas corpus.
In 2004, the Legislature amended section 1473.5 and extended its application to those charged with violent felonies that were committed prior to August 29, 1996, the date of our high court’s decision in Humphrey, supra, 13 Cal.4th 1073. (Stats. 2004, ch. 609, § 2.) An analysis of Senate Bill No. 1385, which was prepared for the Assembly Committee on Public Safety, explained that prior to Humphrey, “although [intimate partner battering] evidence was admissible, its acceptance and application was inconsistent in California courts. Therefore, it is believed that there are many persons battered between 1992 and 1996 who did not have the opportunity to present evidence of [intimate partner battering]. For that reason, this bill makes habeas corpus relief available to battered persons whose convictions occurred prior to August 29, 1996, the date of the Humphrey decision, rather than the existing January 1, 1992 date.” (Assem. Com. on Public Safety, Analysis of Sen. Bill 1385 (2003-2004 Reg. Sess.) as amended Apr. 13, 2004.)
In Humphrey, the court held that “[t]he trial court should have allowed the jury to consider this testimony [of intimate partner battering] in deciding the reasonableness as well as the existence of defendant’s belief that killing was necessary.” (Humphrey, supra, 13 Cal.4th at pp. 1076-1077.)
Alspaw contends that Dr. Kaser-Boyd was not qualified as an expert on intimate partner battering and its effects at the 1996 trial and she did not attempt to introduce such testimony. Thus, she contends that expert testimony on this defense was not received in evidence. We disagree.
Here, Dr. Kaser-Boyd was retained by the defense to perform a psychological evaluation of Alspaw to determine her mental state at the time of the homicide. At trial, she was qualified as an expert in the areas of forensic psychology and psychological assessment. Her trial testimony and curriculum vitae established that she was well-qualified to render an opinion as to whether Alspaw was suffering from the effects of intimate partner battering when the homicide occurred. She testified that she was a “group therapist for the City Attorney’s Office Domestic Violence Diversion Program” and she belonged to the “Southern California Coalition Against Battered Women.” According to her curriculum vitae, Dr. Kaser-Boyd was involved in 12 research activities and symposium topics directly related to the topic of intimate partner battering prior to Alspaw’s trial.
Dr. Kaser-Boyd’s 1996 report indicates that she elicited information from Alspaw regarding whether Swanson had stalked her, hurt her, or caused her to be afraid of him. She also considered whether Alspaw suffered from the effects of intimate partner battering. At trial, Dr. Kaser-Boyd testified regarding Alspaw’s claim that Swanson stalked and harassed her and the effects that Swanson’s behavior could have had on her when the homicide occurred. On cross-examination, the prosecutor asked Dr. Kaser-Boyd: “I noticed you didn’t make a diagnosis of battered women’s syndrome, so you don’t think she was suffering from that?” She replied, “She definitely has battered child syndrome, but I didn’t make a diagnosis of battered women’s syndrome.” At the habeas corpus hearing, Dr. Kaser-Boyd testified that Alspaw was “probably the only teenager that [she] evaluated for Battered Women Syndrome during that phase of [her] career.”
Evidence consists of “testimony... offered to prove the existence or nonexistence of a fact.” (Evid. Code, § 140.) Dr. Kaser-Boyd’s testimony tended to prove that Alspaw was not suffering from the intimate partner battering and its effects. Thus, expert testimony relating to intimate partner battering and its effects was received in evidence at the 1996 trial.
However, even assuming that expert testimony on intimate partner battering and its effects was not received in evidence at Alspaw’s 1996 trial, she has failed to establish prejudice.
To establish prejudice under section 1473.5, Alspaw is required to show that the expert testimony was “of such substance that, had it been received in evidence, there is a reasonable probability, sufficient to undermine confidence in the judgment of conviction, that the result of the proceedings would have been different.” (§ 1473.5.) This determination is a mixed question of law and fact. “Mixed questions are those in which the ‘ “historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.” ’ [Citations.]” (People v. Cromer (2001) 24 Cal.4th 889, 894 (Cromer).) Mixed questions of law and fact are subject to the reviewing court’s independent review. (Cf. In re Cox (2003) 30 Cal.4th 974, 998 [referee’s finding in a habeas corpus proceeding]; Cromer, at p. 901 [trial court’s finding of prosecutorial due diligence in attempting to locate witness].)
This standard of prejudice is identical to that used in evaluating an ineffective assistance of counsel claim. (Walker, supra, 147 Cal.App.4th at p. 549, fn. 15.)
Here, the prosecution presented an extremely strong case that Alspaw committed a willful, premeditated, and deliberate murder. Alspaw admitted that she and Drappo discussed disabling Swanson with a stun gun and then shooting him, though she claimed that she was not seriously considering such conduct. On the night of the killing, she admitted that she paged Swanson “maybe ten” times. When she learned that he was spending the evening with a new girlfriend, she demanded to know who the “bitch” was and if Swanson was “fucking” her. She admitted that when she, Drappo, and Swanson met later that night, Drappo attempted to use the stun gun on Swanson, but it was not properly charged. She also admitted that she took the loaded gun from Drappo and concealed it in her pants before she left with Swanson for an isolated location. After they arrived on Hicks Road, she suggested that they walk on a nearby trail, repeatedly fired the gun, killed him, and emptied his pockets. She and Drappo subsequently removed various items from Swanson’s car and set it on fire. Later, she attempted to use Swanson’s ATM card, lied about seeing him on the night of his disappearance, assisted Swanson’s sister in trying to locate him, and told his mother that she was trying to help her by “looking for clues.”
Moreover, Alspaw’s own description of Swanson’s final moments established that she was not acting in self-defense, either reasonable or unreasonable. She testified that she was afraid of Swanson because he was angry with her and threatening her with a flashlight. However, she also testified that Swanson was “hunched over and like, kind of walking around not really like walking, taking small steps, ” she “walked around him and... shot him in the head.” She explained that she shot him in the head because she “didn’t want him to be in a lot of pain.” However, a claim of self-defense requires that a defendant act solely under the influence of fear of imminent death or great bodily injury. (In re Christian S. (1994) 7 Cal.4th 768, 783 [“the trier of fact must find an actual fear of an imminent harm. Without this finding, imperfect self-defense is no defense”].) By her own admission, Alspaw did not actually fear that she was in imminent danger of death or great bodily injury when she shot him in the head.
In her declaration in support of her petition for writ of habeas corpus, Alspaw stated: “I just kept firing as I backed up. He threw the Mag-Lite at me, and hunched over. I stopped firing and I realized that I had hit him. He was making some awful sounds and a gurgling-like noise. I didn’t fully realize what was happening, but I thought he was suffering. In that instant I didn’t want him to suffer. I walked forward up to him and shot one last time close to his head. He dropped and I could hear the blood running out.”
Alspaw’s claim of self-defense, however, was also supported by evidence that Swanson had stalked and verbally harassed other girlfriends and expert testimony. Dr. Kaser-Boyd diagnosed Alspaw with posttraumatic stress disorder and battered child syndrome. She explained that posttraumatic stress disorder is “a set of symptoms that come about from the experience of either a one-time, life-threatening trauma or chronic continuing threats to safety.” She also testified that Alspaw did not have any “test signs in common with people with anti-social personality disorder.” According to Dr. Kaser-Boyd, “in the weeks prior to the homicide [Alspaw] was feeling overloaded with emotions from the deterioration of her relationship with [Swanson]. She was feeling harassed. She was feeling that he was out to destroy her life.” Alspaw “felt that she was being stalked, and she felt that [Swanson] was threatening to make her look bad at her new job at Blockbuster. That kind of pressure in a person with her existing mental disorder was causing her to decompensate and to have the emotional feelings be very raw and near the surface, and that... was in existence right up to the time of the shooting.” Dr. Kaser-Boyd explained that Alspaw’s posttraumatic stress disorder could have affected her perceptions at the time of the homicide. “When people are feeling mentally overwrought and having a flood of emotion including a fear and sense of betrayal and hurt, they may not process reality very accurately. They may become paranoid... or exceptionally frightened....” Their perceptions become “distorted at times of threat or pressure.”
In his arguments to the jury, defense counsel focused on Swanson’s acts of stalking and verbal harassment, his unwanted sexual advances and angry response on Hicks Road, and expert testimony that Alspaw’s past abuse and Swanson’s threatening behavior could have caused Alspaw to fear him, which then resulted in her shooting him in an actual belief that she needed to defend herself. Thus, he argued for a verdict of voluntary manslaughter. The trial court instructed the jury on self-defense as a complete defense to murder and the lesser offense of voluntary manslaughter based on theories of heat of passion and unreasonable self-defense. The jury was also instructed that it could consider Swanson’s acts of provocation to determine whether Alspaw harbored premeditation and deliberation at the time of the killing. Based on the evidence and these instructions, the jury found defendant guilty of first degree murder.
Had the jury heard evidence of Dr. Kaser-Boyd’s opinion in 2008, it is not reasonably probable that the results of the trial would have been different. Dr. Kaser-Boyd now diagnosed Alspaw with intimate partner battering, but she testified in 1996 that Alspaw suffered from battered child syndrome, which included symptoms similar to battered women syndrome. She also currently diagnosed Alspaw with chronic or complex posttraumatic stress disorder rather than posttraumatic stress disorder, and noted that recent literature on complex posttraumatic stress disorder “makes it clear that someone who has been through the multiple acts of abuse and neglect can look like a person who has an anti-social personality disorder.” Yet the distinction between the two diagnoses was not significant, since she had testified in 1996 that Alspaw did not have any “test signs in common with people with anti-social personality disorder.” Dr. Kaser-Boyd stressed that the effects of intimate partner battering included “vulnerability, desperation, anger, and fear.” She testified at the habeas corpus hearing that Alspaw experienced “incredible anger from all of the wounding and fear that went on. And then, on Hicks Road, something elevated that to a level of intense fear.” However, in 1996, Dr. Kaser-Boyd testified that individuals who have been sexually or physically abused become “very confused about close relationships, ” that is, “[t]hey want them, but they fear them... [a]nd they definitely feel people who say they love you can hurt you.” She also testified that Alspaw had a “flood of emotions including fear” at the time of the homicide, and may not have “process[ed] reality very accurately. They may become... exceptionally frightened.” Her 1996 report stated that Alspaw’s response to the “loss of what little security she had built for her herself” was “narcissistic rage.” Thus, though Dr. Kaser-Boyd was able to rely on more recent research to change her diagnosis of Alspaw, much of the evidence relating to intimate partner battering and its effects presented at the habeas corpus hearing was either admitted at the 1996 trial or part of her prior report. Accordingly, Alspaw has failed to show prejudice.
We also note that in determining prejudice under section 1473.5, we have not considered evidence of Swanson’s convictions for animal abuse. Here, the superior court relied on the fact that this evidence was not admitted in the 1996 trial to find prejudice. However, evidence of specific acts by the victim tending to show his character for violence is not reviewable under section 1473.5. Section 1473.5 applies, not to the exclusion of evidence of the victim’s specific acts to prove character under Evidence Code section 1103, but to the exclusion of expert testimony “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” within the meaning of Evidence Code section 1107. First, Swanson’s abuse of animals did not fall within the definition of domestic abuse (see Fam. Code, §§ 6211, 6320) for which Dr. Kaser-Boyd’s testimony would have been admissible under Evidence Code section 1107. Second, there was a lack of foundation that Alspaw knew the details of the abuse, thus affecting her “beliefs, perceptions, or behavior.” In 1996, Alspaw told Dr. Kaser-Boyd that she “didn’t know anything about it.” In order to show this evidence was relevant to her state of mind, Alspaw was required to show that she knew the details of Swanson’s acts of animal abuse. (See People v. Minifie (1996) 13 Cal.4th 1055, 1066.) Third, Swanson’s abuse of animals did not have a tendency to prove that he abused Alspaw since she never claimed that he had either physically assaulted her or threatened her with violence prior to the night that she shot him.
Moreover, the superior court erred in finding that the trial court had excluded evidence of Swanson’s abuse of animals. The record establishes that defense counsel made a tactical decision not to seek admission of Swanson’s violent acts against animals under Evidence Code section 1103. Alspaw did not argue either on direct appeal or in a timely habeas corpus petition that counsel’s failure to introduce this evidence deprived her of the effective assistance of counsel. Defense counsel’s tactical decision is not reviewable under section 1473.5.
Alspaw also relies on Walker, supra, 147 Cal.App.4th 533 to support her position that she has demonstrated prejudice. In that case, the prosecution presented evidence that defendant waited for her husband to return home and then intentionally shot him. (Walker, at p. 539.) The defendant testified that the shooting was an accident. (Walker, at p. 540.) She also testified that she had suffered years of physical and emotional abuse from her husband. (Walker, at p. 540.) Trial counsel, however, did not present expert testimony on intimate partner battering. (Walker, at p. 542.) The jury rejected both the defendant’s testimony that the shooting was accidental and the prosecution’s theory that it was a premeditated murder, and convicted the defendant of second degree murder. (Walker, at p. 541.) The defendant later brought a petition for writ of habeas corpus pursuant to section 1473.5. Noting that the expert “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, ” Walker held that the absence of expert testimony on intimate partner battering was prejudicial. (Walker, at p. 553.) In contrast to Walker, here, the defense retained an expert to evaluate Alspaw for intimate partner battering and its effects. Though Dr. Kaser-Boyd concluded that she did not suffer from intimate partner battering, she testified that Alspaw suffered from posttraumatic stress disorder and battered child syndrome, which had symptoms similar to those of intimate partner battering. As a result, her perceptions at the time of the homicide would have been affected. The jury also heard Alspaw’s testimony that Swanson had stalked and harassed her as well as corroborating testimony from his other girlfriends. Thus, Walker is distinguishable from the present case.
IV. Disposition
The order is reversed.
WE CONCUR: Bamattre-Manoukian, Acting P. J.Duffy, J.