Return to CALJIC Part 3-4 – Contents
F 4.43 n1 Necessity As Defense To Needle Exchange Charge.
See Daily Journal 9/11/91 re: use of necessity defense in trial of needle exchange activists. Note that jurors asked for clarification of two terms: “immediate evil” and “adequate alternative.”
See also San Francisco Recorder 5/12/93 (reproduced in September 1993 FORECITE Newsletter) discussing Halem v. Superior Court UNPUBLISHED (A060750) in which the Court of Appeal denied the prosecution’s pretrial writ petition seeking to preclude the defense from raising a necessity defense to a needle exchange charge. [The briefing in Halem is available to FORECITE subscribers. Ask for Brief Bank # B-588.]
F 4.43 n2 Medical Necessity As Defense To Marijuana-Related Charges.
(See FORECITE F 12.41.1 et seq.)
F 4.43 n3 Necessity: Homelessness As Defense To Charge Of Vagrancy.
In re Eichorn (98) 69 CA4th 382 [81 CR2d 535]. “The court must instruct if the evidence could result in a finding defendant’s criminal act was justified by necessity. (People v. Slack (89) 210 CA3d 937, 941 [258 CR 702].) In In re Eichorn, there was substantial if not uncontradicted evidence that defendant slept in the civic center because his alternatives were inadequate and economic forces were primarily to blame for his predicament. Whether denominated as a denial of his right to jury trial or of his due process right to present a defense (see People v. Schroeder (91) 227 CA3d 784, 787 [278 CR 237] [noting the “right of a criminal defendant to present a defense and witnesses on his or her behalf is a fundamental element of due process guaranteed under the Fourteenth Amendment to the United States Constitution”]), the error in failing to instruct on necessity was “clear, fundamental, and struck at the heart of the trial process.” (Eichorn, 69 CA4th at 390.)
F 4.43 n4 Necessity Compared To Duress.
(See FORECITE F 4.40 n11.)
F 4.43a
Necessity: Elements
*Add to CJ 4.43:
[See FORECITE F 12.60h.]
F 4.43b
Necessity -– Reasonable Foreseeability Based
On Potential For Harm Not Actual Harm
*Add to CJ 4.43:
In considering the reasonably foreseeable harm you must consider the circumstances immediately prior to the act rather than a hindsight view of the harm actually caused.
Points and Authorities
(People v. Kearns (97) 55 CA4th 1128, 1135 [64 CR2d 654]; see also People v. Verlinde (2002) 100 CA4th 1146, 1166, fn 8 [123 CR2d 322].)