Mathews

Defendant, Anita Mathews, appeals from a judgment entered following her conviction of the voluntary manslaughter 1 of Donald Silva (Pen. Code, § 192), and discharging a firearm at a vehicle (Veh. Code, § 23110, subd. (b)), as charged in count two. The jury also found defendant used a firearm within the meaning of Penal Code section 12022.5 during the commission of both crimes. Defendant was acquitted of the attempted murder of Darelle Ghormley, as charged in count three.

The charges against defendant arise from an incident occurring on December 13, 1976, in which defendant, while unsuccessfully attempting to kill Darelle Ghormley, fatally injured Donald Silva.

The record discloses defendant and Ghormley had dated on two or three occasions in November 1976. Their activities were mostly limited to Ghormley visiting defendant at her house where he had sexual relations with her. Ghormley testified that on the last of these dates, he took defendant to his house where he and two friends had sexual intercourse with her.

On the day of the fatal shooting Ghormley, a passenger in a car driven by decedent Donald Silva, had occasion to stop at defendant’s house. Defendant, with…

I dissent. The majority correctly conclude that the doctrine of “transferred self-defense” is the law in California. Their further conclusion that the court had no sua sponte duty to instruct is unconvincing. It is understandable that the trial court did not properly instruct; after all, it is by this opinion that we enunciate applicable law. Nonetheless, the trial court did not properly instruct, and, as I read our state’s decisional law, we must reverse.

The gravamen of the defense was the “rape trauma syndrome” caused by a gang rape. The record discloses the dehumanizing ordeal defendant Mathews experienced. On the day of the rape she had accompanied Ghormley to his home. Once there, Ghormley and two of his friends forced Mathews to disrobe. She begged Ghormley, a person in whom she had had confidence, not to permit such acts. His response was to laugh; the response of one of his friends was to strike her in the mouth. During the trauma, lasting approximately six and one-half hours, defendant’s life was threatened; she was forced to perform acts of oral copulation; she was sodomized; and acts of sexual intercourse were performed against her will. The three men participated. At…

Defendant, Anita Mathews, appeals from a judgment entered following her conviction of the voluntary manslaughter [1] of Donald Silva (Pen. Code, § 192), and discharging a firearm at a vehicle (Veh. Code, § 23110, subd. (b)), as charged in count two. The jury also found defendant used a firearm within the meaning of Penal Code section 12022.5 during the commission of both crimes. Defendant was acquitted of the attempted murder of Darelle Ghormley, as charged in count three.

The charges against defendant arise from an incident occurring on December 13, 1976, in which defendant, while unsuccessfully attempting to kill Darelle Ghormley, fatally injured Donald Silva.

The record discloses defendant and Ghormley had dated on two or three occasions in November 1976. Their activities were mostly limited to Ghormley visiting defendant at her house where he had sexual relations with her. Ghormley testified that on the last of these dates, he took defendant to his house where he and two friends had sexual intercourse with her.

On the day of the fatal shooting Ghormley, a passenger in a car driven by decedent Donald Silva, had occasion to stop at defendant's house.…