*1 Dist., A027439. First [No. Div. Three. Jan. 1985.] al., In re DAVID WELLER et on Habeas Corpus.
Counsel Defender, Aram Anawalt, Portman, B. C. Public Howard Sheldon James, Defender, Public Deputy Petitioners. Post, Brannon, Ramo, Andrew Lichterman and N. Alan Leonard
Stephen Kathryn Amici on Seligman as Curiae behalf Petitioners. General, Deputy
John Van de and Clifford Thompson, K. Kamp, Attorney General, for Attorney Respondents. Sutro, M. as Amici Fong & Walter R. Allen Kevin Madison
Pillsbury, behalf Curiae on of Respondents.
Opinion and frus- Petitioners, in the WHITE, political process P. J. disappointed information, trated with lawful antinuclear weapons means disseminating having After been Corporation. at Lockheed trespassed Missiles Space Lockheed property they warned that their went actions prohibited, trespass, were convicted of They offer leaflets to entering employees. misdemeanor, pay- in jail, suspended upon to 45 days and were sentenced $150
ment of a fine and of completion period community service. They claim here that the trial court erred their defense barring We disagree. essence petitioners’ offer was that felt they they had no
choice but to on the Lockheed because believed trespass premises they that their would presence an the bring end to threat of holocaust. nuclear They offered the testimony Aldridge, Robert a former Lockheed design group leader involved Trident would Missile. He have tes- development tified that the Trident Missile a shift from deterrence to an represented strike aggressive first and made nuclear war imminent. He would capability have testified about the of nuclear accident and possibility holocaust would have explained his view that the would Trident have a de- System on effect stabilizing international relations.
Petitioners contend that their offer of the met all requirements for the defense of and that the trial necessity court committed prejudicial error in them to the for consideration failing permit defense present the cite jury. “[djoubts They that as to the principle sufficiency evidence to warrant instructions should resolved in favor the accused” 84, (1979) v. Flannel 25 603 (People Cal.3d 685 P.2d Cal.Rptr. [160 1]) and that argue each of the People set forth in v. Pena prerequisites (1983) 149 14 been has met. Supp. Cal.Rptr. [197 264]
The necessity law, defense has an uncertain status in California leading exist, one it; commentator ask: or “Does the defense doesn’t necessity and, does, sense, if it what In a it basis? resembles a metaphorical scientific exists, phenomenon but in defiance indisputably apparent Jr., natural (1979) law.” The (Berry, Necessity 54 Mysterious Defense of State Bar.J. This stems from of a the absence statute ar- uncertainty the defense of from ticulating that the com- pronouncements mon law (see, is not of criminal law in Keeler part California v. (1970) 632 Superior Cal.3d Cal.Rptr. [87 A.L.R.3d (1929) v. People Whipple Cal.App. 1008]). P.
Uncertain has parentage notwithstanding, grown defense series lead v. through appellate People opinions following (1974) 43 668], Lovercamp to a and set forth applied doctrine case prison escape above, rules for its all we hold that stringent “From of the application: if the following rule is that limited defense of is available proper death, (1) conditions exist: faced threat of with a prisoner specific future; forcible sexual attack or immediate bodily injury substantial there exists a authorities or (2) is no for a to the There time complaint [f] complaints which make result of futile complaints courts; to resort to time or [H] There is no illusory; opportunity [f] personnel no force violence used towards There is evidence of imme (5) prisoner other ‘innocent’ in the persons escape; [t] has attained position when he to the authorities diately proper reports 831-832.) (Id., from the threat.” safety pp. immediate (1977) 68 Cal.App.3d v. Wheeler People but not met did found had been this division the conditions of Lovercamp (see Condley v. People also status of question 515]). In v. Patrick Pena Cal.App.3d 952 276] *4 defense has 264], the necessity Cal.App.3d Supp. to a dif- made subject beyond setting been extended the prison escape Patrick, rules. cult was denied ferent set of In v. a People “deprogrammer” appel- an instruction on the defense to charges kidnaping. was available under that such late court assumed “arguendo” but found that California law the found offer deficient. proof a belief in the defendant had not that he personally possessed demonstrated that there existed danger the of criminal action or demonstrated of imminent cult member/victim. harm the physical alleged Pena, the most com- v.
People presents supra, it discussion the defense as prehensive California There, with outside the a defendant applies prison escape setting. car that he drove the misdemeanor drunk was denied an instruction driving in faith belief and that good danger that his be in girlfriend might physical he he was from police need her. The might protect danger perceived The circumstances the officer who searched her home. her drove search an instruction to warrant transportation sufficiently peculiar necessity defense. defense,
Sometimes
the “duress”
defense as
describing
“necessity”
in California:
made
about
law
Pena court
observations
following
(i.e.,
defenses
‘du-
the ‘justification’
California law
“Although
regarding
’
’
’
ress,
see,
2, ante)
in
sparse
‘necessity,
appears
etc.
fn.
‘compulsion,
there nonetheless exist
to that
jurisdictions,
of most American
comparison
as to the
guidance
some
decisions which provide
several Court Appeal
in
v. Patrick
of those
the court
recently
defenses—most
parameters
276], noted
‘[Although
that:
Cal.App.3d
clouded, a well-estab-
defense remain
the exact confines of the necessity
situation, i.e.,
lished central element involves the
nature
emergency
act
to prevent.
seeks
illegal
the imminence of the
harm which the
greater
(See State v. Johnson
“In the California case leading regarding duress applicability defense to a charge escape, Lovercamp Cal.App.3d 668], 69 A.L.R.3d court fashioned a five part judicial test for of the defense. In determining availability cases, court observed that it was not a new formulating law, rule of but rather was ‘rules in applying established a manner long ago ’ which effects (43 fundamental justice. at Cal.App.3d p. People v. Graham (1976) 57 it was held that the burden of defendant, cases which duress was asserted aby that the required only defendant ‘raise a reasonable doubt that he had acted in the exercise of (57 his free 240.)” (149 will.’ at p. 21-22.) pp. Supp.
After concluding that the defense could be used to any crime justify except murder and that the defense was available to a defendant who acted to prevent imminent harm to a third the court went on to “The party, say; *5 following have requirements been held to traditionally be to prerequisites the establishment of the defense of justification/duress: 1. The act [f] evil; criminal must have been done to prevent significant [f] 2. There must have been no alternative to adequate the commission of the act; 3. The harm caused the act must not be to by [f] disproportionate avoided; harm 4. The accused must entertain a belief that his good-faith [t] act was harm; to necessary prevent greater 5. Such belief must be [f] circumstances; objectively reasonable under all the 6. The accused [f] must not have of substantially contributed to the creation the emergency. [1] These determinations are for the trier of fact.” (Id., pp. Supp. omitted.) fns. We need not decide whether the defense should be con sidered a part California law or whether the Pena court’s articulation of Pena, the factors is too Even under the broad expansive. standards pe titioners’ offer of was proof insufficient. The most obvious legally deficiency in the offer of is failure sufficient evidence that present legally petitioners lacked an to criminal alternative adequate trespass. articulated,
Although clearly on absence of ade- theory petitioners’ quate alternatives seems to tried lawful having depend upon petitioners’ leafletting, political and other courses of action without suc- campaigning, cessfully the threat of averting nuclear war. Borrowing Lovercamp, them to demonstrate contend that it is for enough petitioners alternative, illusory an to complain futile which makes right complaints, to conclude should permitted such evidence jury and that based upon war. that their action was nuclear necessary prevent to the American po- easily do not transfer Lovercamp principles society, litical was not a democratic arena. decision. a political defendant there was not protesting to which National defense through political process, made policy First Amendment free access. The and most other citizens have petitioners decision. In a free society any right lawfully protest political protects is an exhaust- neither the nor the avenue of lawful political protest process for an unwise decision. remedy ible policy amici
Both that the court should curiae in contend petitioners support law that international have defense on the permitted ground Trident actions. They interpret development compelled petitioners’ Missile and contend that system per- as violation of international law inaction, violation, or her his by son who does not seek to prevent analysis, premises violates international law. Accepting, purposes interna- violated international law and that Trident development viola- all citizens to prevent tional law affirmative action requires tion, justified. Again, affirmative action is illegal it still does not follow that the issue turns on the of lawful means for availability accomplishing polit- for the authority proposition ical Neither nor amici cite change. petitioners laws those excuse violation of its that a free and democratic must *6 society law. Compliance conform their to international seeking country’s policies box, or, the ballot where with international law be sought through must influence policies conduct Illegal designed action. appropriate, by are available. cannot be considered where such lawful avenues “necessary” of civil country’s or trivialize this We do not mean to ignore Railroad, Free- the Underground disobedience the Boston Tea (e.g., Party, From South, Vietnam War protests). dom Marches in the and some of the as justified be seen may unlawful acts many of history perspective constitution- finding even been rendered lawful by Some have “necessary.” these that But the determination al defects enactments. prohibitory distance, then not be made from a can “necessary” only actions unconstitutional, those chal- with Unless the laws are held legal precision. conse- to bear the short-term them must be prepared lenging defying quences their actions in the that will benefit and that hope society histo- rians will look them.1 charitably upon
The order to show cause is and the for writ of discharged habeas petition is denied. corpus J.,
Barry-Deal, concurred.
SCOTT, J. concur in the judgment. I out,
As the majority points an uncertain has status hand, in California law. On one the California Court has Supreme broadly “ stated that just as there state, are no common law crimes in this ‘likewise with excuses or justifications—if no excuse or statutory justification apply offense, as to the commission of the neither the common law nor particular the so-called “unwritten law” (Keeler may legally it.’ supply [Citation.]” v. Superior (1970) 2 Cal.3d Cal.Rptr.
617, 40 420].) out, As more than one commentator has pointed while this state’s defenses, Penal Code includes a number of common law duress, unconsciousness, self-defense, there is no code provi- (Comment, sion recognizing defense of A Necessity Defined: New Role in the Criminal (1981) UCLA System L.Rev. Defense 45; Jr., fn. Berry, Mysterious (1979) 54 Necessity State Defense of 384, 385; Gardner, Bar J. and the Necessity Right Escape Defense of Prison—A Step Towards Incarceration Free Sexual Assault from from 110, 133-134.) 49 So.Cal.L.Rev. When the court in People v. Lov- ercamp 69 A.L.R.3d 668] held that a limited defense of is available to a defendant with escape prison, it did not discuss the effect of the absence of statutory authority that defense. Most cases subsequent considering whether the defense to offenses other than applies have also prison escapes (See, this ignored issue. People v. Patrick 276]; v. Weber cf. Velasquez defense in [stating 640] based on public policy].) *7 hand, however,
On the other those to or acknowledge commentators fail that the that there no or recognize nonstatutory justification is principle excuse for a (1 criminal act in this state rule. an absolute apparently Court, Department, 1Note the Diego Superior Appellate recent decision of the San in v. Weber general Cal.App.3d Supp. accord with our weapons protestors Dynamics Navy views. There nuclear at General and U.S. submarine base were trespass obstructing convicted of and a street and/or sidewalk. Witkin, is a 10-11.) For example, entrapment Cal. Crimes pp. § rather defense, grounds to rest on policy well-recognized appears public 675, (1979) 23 Cal.3d (See than on statute. any Barraza Scott, 947]; & Handbook see also LaFave Criminal Law p. addition, in this state defense” “necessity those courts analyzing elements, court has discussed and at least one
have been uncertain about its (Peo- of duress. from the defense as if it were indistinguishable v. Pena ple 264] [charac- “duress,” terms using as a “duress” case terizing Lovercamp “coercion,” interchange- and “justification” “necessity,” “compulsion,” ably].) commentaries that reason-
It is from a of the cases and reading apparent and in able minds are in a as to defenses nonstatutory state of confusion de- to the so-called “necessity the existence and/or particular scope Legislature. to be out fense.” law in this area needs straightened “ne- The courts as do not to be of a yet by urgings overwhelmed appear defense”; bar however, the criminal defense can cessity the fertile minds of now, act to should Legislature move this direction. expected rather than wait until the forced to their own solution. “legislate” courts are case, however, whatever to it is clear that there is no defense
As this name available to who in other unlawful conduct those trespass engage to Whether the defense is characterized as protest governmental policy. two, definition “necessity” hybrid “duress” or some “[u]nder constant; reasonable, of these one if there was a defenses remains principle (United alternative the defenses will fail.” the law . . . legal violating 575, 100 L.Ed.2d S.Ct. States v. 444 U.S. Bailey see, (9th 1980) United States v. Cir. 622 F.2d May Tri- who [necessity against defense not available defendants protest There were base by trespassing].) dent missile at naval submarine system trial court other lawful forms of and the available protest petitioners, their defense of correctly rejected J.,
Barry-Deal, concurred. February petitioners’ A for a was denied petition rehearing were denied April for a applications hearing by Supreme Bird, J., be grant- that the should 1985. C. was of the opinion applications ed.