Brief Bank # B-797 (Re: F 12.70 n8 [Hit And Run: Necessity As Defense].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
______________________________________)
APPELLANT’S OPENING BRIEF
–oo0oo–
IV.
THE TRIAL COURT ERRED IN FAILING TO GIVE THE
REQUESTED JURY INSTRUCTION ON THE DEFENSE
OF NECESSITY, AS TO THE HIT AND RUN CHARGES
Appellant requested that the trial court give CALJIC No. 4.43, the standard jury instruction on the defense of necessity. (ACT 13.) The trial court did not give any jury instruction on the defense of necessity. Appellant contends that this failure to give a jury instruction on this pertinent affirmative defense constitutes prejudicial error.
The development of the “necessity” defense in California has proceeded by fits and starts. In People v. Whipple (1929) 100 Cal.App. 261, 262, the court rejected a “necessity” defense in an escape from prison case, holding that both crimes and defenses can only be defined by statute. But by 1963 Witkin concluded that the California courts appeared to have accepted the defense of necessity in principle, although none had found it to apply to the facts of the cases which had come before them. (1 Witkin, California Crimes (1st Ed., 1963), sec. 248, p. 232.)
One of the earliest cases applying the necessity principle was People v. Richards (1969) 269 Cal.App.2d 768. The court there defined the defense of necessity as follows:
An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; that no more was done than was reasonably necessary for that purpose; and that the evil inflicted by it was not disproportionate to the evil avoided. (Id., at pp. 774-775, quoting Clark & Marshall, Law of Crimes [6th Ed., Wingersky, 1958], p. 322, quoting from Stephen, Digest of the Criminal Law, art. 32.)
In People v. Lovercamp (1974) 43 Cal.App.3d 823, the court applied the doctrine of necessity to a charge of escape from prison, where the defendants alleged the need to escape brutal conditions. The court noted that prior decisions in the United States tended to focus on the interest of society in keeping incarcerated felons in prison, and the immediate problems of the escaping defendants. Almost always, the interest of the society in keeping convicted felons in custody was found to exceed the exigencies facing individual defendants. (Id., at p. 827.) The Lovercamp court chose to frame the question in somewhat different terms: the court must “look[] to all the choices available to the defendant and then determin[e] whether the act [taken by the defendant] was the only viable and reasonable choice available.” (Ibid.)
In People v. Patrick (1981) 126 Cal.App.3d 952, the court applied the principles of the necessity defense to the crime of kidnaping, where the defendant alleged the kidnap was necessary to free the victim from a dangerous cult. The Patrick court agreed that the defense of necessity was recognized in California, citing Witkin, supra, and Lovercamp, supra, 43 Cal.App.3d 823. (Patrick, supra, 126 Cal.App.3d at p. 960.) However the court determined that the evil sought to be avoided must be imminent, and the defendant had not proven that the threatened harm from the victim remaining in the cult would cause imminent danger. (Ibid; see also People v. Heath (1989) 207 Cal.App.3d 892, 901) Furthermore, the court concluded that the defendant had not shown that there was no alternate (and legal) method available to avoid the threatened harm. (Patrick, supra, 126 Cal.App.3d at p. 960.)
It appears that under all of the foregoing decisions, appellant presented a credible claim of “necessity” as to the Vehicle Code section 20001(a) charges. That section required appellant to provide his name, address, etc. to the injured victim, and to render reasonable assistance to the person. (Veh. Code secs. 20001(a) and 20003(a).) The prosecutor asserted that appellant had failed in both such duties. (RT 487.)
Evidence was presented that immediately after the accident, appellant got out of his car and asked Ms. H, the driver of the other car, if she was injured. (RT 41, 392.) The evidence was uncontradicted that Ms. H replied that she was injured, and that appellant should get some help. (RT 42, 392.) Appellant testified that he then returned to his vehicle to look for a cellular phone, but was unable to find one. (RT 393.) He then ran toward a Shell station, which he believed was the closest location where a pay phone would be available. (RT 393.) At the gas station, he called his mother-in-law, explained about the accident, and requested that she call for assistance for the people injured at the accident. (RT 394.)
Under such circumstances, appellant had adduced sufficient evidence which, if believed, would indicate that his failure to comply with Vehicle Code section 20001 could be excused, because it was done to avoid the greater evil of grave injury or death to Ms. H, if he had remained at the scene in order to provide his name, address, etc. Therefore a necessity instruction should have been given. (Richards, supra, 269 Cal.App.2d at p. 774-775; Lovercamp, supra, 43 Cal.App.3d at p. 827.)
But at some point later cases enumerated a new factor in the necessity defense: the defendant must not have “substantially contribute[d] to creating the emergency” that his unlawful act seems to avert. (People v. Slack (1989) 210 Cal.App.3d 937, 940, 943-944.) This new element appears to have been extracted from People v. Pena (1983) 149 Cal.App.3d Supp. 14, 25-26. (Slack, supra, 210 Cal.App.3d at p. 940.) However Pena is a case involving the defense of duress, and depends upon Penal Code section 26. (Pena, supra, 149 Cal.App.3d Supp. At pp. 17, 22-24.) The defenses of duress and necessity are conceptually quite distinct, and the elements of one are not congruent with the other. (Heath, supra, 207 Cal.App.3d at pp. 900-901; People v. Eichorn (19) Cal.App.4th 382, 389; People v. Condley (1977) 69 Cal.App.3d 999, 1013.) Thus the court in Pena seems to have conflated the elements of duress and necessity, and the Slack court simply repeated that conflation.
Another problem with assuming that there is an element in the “defense of necessity” which requires that the actor not have substantially contributed to the emergency which his illegal act seeks to avoid, is that Pena gave no reasoned analysis for including this factor. Pena listed various purported elements for the defense of duress, but significantly did not provide any citation to the derivation of the factor treated above. (Pena, supra, 149 Cal.App.3d Supp. At pp. 25-26.) [Footnote 1]
In People v. Pepper (1996) 41 Cal.App.4th 1029, 1035, the court repeated the element that the defendant must not have substantially contributed to the emergency which caused the “necessity”. However, since the Pepper court relies upon Slack as authority, its analysis is only as persuasive as that in Slack. (Id., at p. 1035.) The same is true of People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 (relying on Slack); and People v. Trippet (1997) 56 Cal.App.4th 1532, 1538 (relying on Pena); and Eichorn, supra, 69 Cal.App.4th at p. 389 (relying on Pepper).)
Even if it were assumed that Pena correctly stated the elements necessary to raise a necessity defense, that would not bar appellant from raising the defense in the instant case. Under the Pena line of cases, a defendant must show that he was not a substantial contributor to the creation of the emergency situation. Appellant’s testimony showed just that: he testified that the accident occurred because Ms. H’s car was in the wrong lane. Since the cases are in agreement that “doubts as to the sufficiency of the evidence to warrant [a necessity] instruction should be resolved in the favor of the accused”, appellant should have been entitled to the necessity defense instruction even under the Pena cases. (Slack, supra, 210 Cal.App.3d at p. 941; Eichorn, supra, 69 Cal.App.4th at p. 390; Trippet, supra, 56 Call.App.4th at p. 1539; Patrick, supra, 126 Cal.App.3d at p. 960, fn. 5, 961.)
Appellant has analyzed the issue of prejudice in the previous section regarding the failure to specify that the jury must determine what act or acts were in violation of law, and caused the injury to the victim, under Vehicle Code section 23153. Much of that prejudice analysis applies to the present section. However this issue differs somewhat, since it does not involve the omission of an element of a charged crime, but rather the failure to instruct the jury to consider a defense tendered by the appellant.
Where the trial court fails to instruct on a defense theory that is supported by sufficient evidence to warrant consideration by the jury, the error is reversible per se. This is required because the “[r]ight to have the jury instructed as to the defendant’s theory of the case is one of those rights `so basic to a fair trial’ that failure to instruct … can never be considered harmless error.” (United States v. Escobar De Bright (9th Cir. 1984) 742 F.2d 1196, 1201; Unites States v. Zuniga (9th Cir. 1993) 6 F.3d 569, 571.) Another way to conceptualize this analysis is to note that where the trial court fails to give a required instruction which bears upon the elements of the offense, or the type or quantum of proof necessary (as in an affirmative defense), a Chapman test will never suffice. This is because in a Chapman test it is the reviewing court which determines whether the proof meets the constitutional requirement, and thus infringes upon the Sixth Amendment right to have the jury decide whether there has been sufficient proof. (Pope v. Illinois (1987) 481 U.S. 497; Carella v. California (1989) 491 U.S. 263 [105 L.Ed.2d 218, 224]; Yates v. Evatt (1991) 500 U.S. 391 [114 L.Ed.2d 432, 450]; Sullivan v. Louisiana (1993) 508 U.S. 275, 279-280 [113 S.Ct. 2078, 2081-2082.]
Since the error to give the affirmative defense of necessity requires reversal, the judgment of conviction on Vehicle Code section 20001(a) count must be reversed and remanded for a new trial.
FOOTNOTES
FOOTNOTE 1: Of note is the fact that for certain of the elements listed, the Pena court did provide citation to authority. Thus, for the element that the defendant’s criminal act must have been committed to “prevent a significant evil”, Pena cited Cleveland v. Municipality of Anchorage (Ala., 1981) 631 P.2d 1073, 1078. (Pena, supra, 149 Cal.App.3d Supp. At p. 25, fn. 12.)
