Opinion
F073115
05-21-2018
THE PEOPLE, Plaintiff and Respondent, v. TYE GLENN CHAMP, JR., Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Nora S. Weyl and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14907582 )
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Nora S. Weyl and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Following a jury trial, appellant Tye Glenn Champ, Jr., was found guilty of count 4, possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and count 5, misdemeanor vandalism (§ 594, subd. (a)(3)). A mistrial was declared on count 1, attempted murder (§§ 664/187, subd. (a)) and count 2, assault with a semiautomatic firearm (§ 245, subd. (b)), and those charges were subsequently dismissed. He was acquitted of count 3, cruelty to an animal (§ 597, subd. (a)). As a third striker, Champ was sentenced to 25 years to life, plus a concurrent term in the form of credit for time served.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, Champ contends the trial court erred when it refused an instruction on entrapment by estoppel as a defense to the gun possession charge, and instructions on the right to defend property and necessity defense on the vandalism charge. We affirm.
STATEMENT OF THE FACTS
John and Denise Price and their 13-year-old son, J.P., lived in a residence near Prather. A dirt easement road was located on their property. A neighbor, Bonnie Hancock, lived at the end of the easement road. Hancock had a group of men, including Champ, pave the easement road sometime in 2013.
We will refer to John and Denise Price individually by first name to avoid confusion.
The Prices were upset the easement had been paved because the pavement prevented them from riding their horses on the road and allowed speeding vehicles.
Late in the afternoon on August 7, 2014, John and Denise, along with friend Richard Norman, met in the hay barn to unload feed grain from a truck. Realizing the task would require another barrel, J.P. was directed to retrieve an extra barrel from another area of the property.
To do so, J.P. drove his ATV and its attached trailer toward the easement road where he came upon Champ, who was working in the vicinity. Before crossing the paved easement road, Champ stood in front of the ATV, put his hand on it and told J.P. he could not drive on the road because it was wet. J.P. turned around and went another route to the storage unit.
ATV and "quad" are used interchangeably.
When J.P. turned around and backed up to the storage unit, Champ came "running down" toward J.P. and then went to this vehicle and grabbed something. He then approached J.P., took a knife from his pocket and punctured the tires of the ATV. Champ yelled at J.P. that he was "tearing up my road," and told him to go get his father. J.P. started to drive back towards the house.
John heard yelling, and he, Denise and Norman started towards the commotion. They met J.P., who told them Champ had slashed his tires. Champ yelled, "I'm fucking done with your bullshit," pulled out a firearm and shot John in the stomach. He continued shooting towards John and J.P. and the horses. Champ then left and an ambulance arrived.
At trial, John acknowledged that he had had "quite a few" disputes with neighbors concerning the easement, and at one time there was a temporary restraining order against him by one of the neighbors. Defense
Hancock testified that Champ and a contractor had paved the easement road, which she acknowledged was not on her property. She did not inform the Prices that she was going to have the easement paved prior to doing so. Champ had done a variety of work for her on her property. On one occasion after paving the easement, a large amount of dirt was dumped on the road. Hancock spoke to Denise on the telephone about the dirt; Denise hung up on her.
Earlier on the day of the shooting, Robert Styre and two others were seal-coating the easement road at Hancock's request. In the afternoon, Styre called Hancock to inform her that a boy and a woman had been throwing dirt on the road. When the contractor confronted the boy and the woman, they threatened to do it again. Hancock was concerned because the seal-coating was not yet done and it was late afternoon. Hancock spoke to Champ about this over the telephone. She was expecting Champ to arrive to help her take her car to the shop. Hancock went down to the bottom of the easement road and called 911 twice about the situation. By the second call, Champ arrived. Hancock left the road crew to get them water from the house. When she returned, she heard there had been a shooting.
Another neighbor, Michael O'Hare, testified regarding three previous confrontations he had had with John over the course of two to three and a half years prior to trial.
Champ testified on his own behalf. Champ described Hancock as a "good friend[]" who had helped him in his previous run for governor by doing a lot of "computer" work for him. Champ testified he was familiar with the Price family and had heard from one of John's neighbors that John had threatened him and broken windows on his car. He had also heard that John had chased another neighbor with a knife, shot at someone's house, and attacked people with a shovel. Champ heard from Hancock that she had spoken to Denise about helping with the easement road, and it had been "a very ugly conversation."
When Champ initially paved the easement road, he had had problems with ATVs tearing up the asphalt. At one point, someone had put fresh dirt on the asphalt with a tractor. Champ had previously spoken to John about someone "spinning out the figure eights on the driveway" and John had been very hostile. Champ had seen John laying manure "all over the road" and spoke to him about it, but John had "anger issues." Champ had spoken to John because he was a friend of Hancock's and did not like to see his work vandalized.
The day of the shooting, Champ received a phone call from Hancock stating the Price family was throwing dirt on the road and would do so again. He told her to call the sheriff. When Champ arrived, he met Hancock and told her to go get water and call the sheriff; he then went to the work site. Champ stayed ahead of the road crew to make sure it stayed clean. He heard John tell J.P. to mess up the road, but when J.P. came towards him, he waived him off, telling him the road was wet and needed to dry. Champ denied grabbing the ATV. Champ thought that, if the ATV continued to drive on the easement, it would put the work crew "in danger." J.P. turned around and went back.
J.P. then drove the ATV about 40 miles an hour through another area and ran over working cones that had been placed there by the crew. Champ went to his car to get his pocketknife and handgun, because he had been previously attacked with a shovel in an incident that had started "the same way." Champ went over and yelled at J.P., who was standing in front of the storage unit, and told him he was no longer going to disrespect him or the road. Champ cut the tires of the ATV because it was putting people in danger, tearing up the road, and making roadwork more difficult. Champ told J.P. to go get his father.
After Champ cut the tires, he walked back to where the crew was working. According to Champ, John came running up the hill with a knife in his hand. When John swung at Champ with the knife, Champ shot him. Stipulations
The People and Champ stipulated that he was previously convicted of a felony.
The parties also stipulated that Styre, at Champ's recommendation, was hired by Hancock to seal-coat the roadway leading to Hancock's residence. While seal-coating, Styre saw a teenage boy on a quad throw dirt on the road. Styre told the boy to stop because the road needed to remain clean for seal-coating. Styre spoke to someone he presumed was the boy's mother and informed her that he would have a hard time seal-coating if the road continued to be dirtied. Styre informed Hancock by telephone about the incident. Hancock walked to the work site and informed Styre that she had called the sheriff's department. Hancock then left the location for about 15 minutes. When she returned, she asked Styre if he would like some water, which she then left to get. While she was gone, Styre heard three to five gunshots coming from down toward the bottom of the road. Styre did not witness John being shot.
DISCUSSION
Champ argues on appeal that the trial court erred when it refused his request to give several proposed defense instructions on entrapment by estoppel on the gun possession charge, and the right to defend property and the defense of necessity on the vandalism charge. We find no error. Applicable Principles and Standard of Review
A mistrial was declared on count 1, attempted murder, on which the jury had been instructed on attempted voluntary manslaughter imperfect self-defense and heat of passion and attempted murder and attempted voluntary manslaughter justifiable self-defense; and on count 2, assault with a firearm, on which the jury had been instructed on the right to self-defense. --------
"A trial court must instruct the jury, even without a request, on all general principles of law that are '"closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense ...."' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].'" (People v. Burney (2009) 47 Cal.4th 203, 246; see People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
We review assertions the trial court should have given a particular jury instruction de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210; People v. Waidla (2000) 22 Cal.4th 690, 733.) A court need only give a requested instruction "if the defendant proffers evidence sufficient to 'deserve consideration by the jury ....'" (People v. Barrick (1982) 33 Cal.3d 115, 132.) However, the court need not give the instruction if the evidence is minimal and insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
A. Entrapment by Estoppel
Champ contends the trial court prejudicially erred when it refused to give his proposed instruction that entrapment by estoppel constituted a defense to the count 4 gun possession charge. We disagree.
Background
Champ proposed the following jury instruction:
"It is a defense to Count 4 if the defendant shows by a preponderance of the evidence that he possessed a firearm as is alleged on August 7, 2014, after suffering a felony conviction, because he received an official notice that even though he suffered such conviction, he was qualified to run for the office of Governor. The office of governor is one that requires the holder to be a member of, and to participate in the operations of the militia of the State of California. The militia of the State of California has the Second Amendment right to keep and bear arms."
Champ based his claim of entrapment by estoppel on the following. In 2014, Champ ran for Governor of California. At trial, defense counsel wished to argue to the jury a "mistake of fact" defense that, because Champ was allowed to run for Governor, he was led to believe that the ban on a felon possessing a firearm (count 4) did not apply to him because the limitations or qualifications for governor excluded only people convicted of certain felonies, not those suffered by Champ. Defense counsel requested that the trial court take judicial notice of a Summary of Qualification and Requirements for the Offices of Governor and Lieutenant Governor, published by the Secretary of State. The trial court denied the request, stating defense counsel needed to present additional authority and argument to support the contention that
"because [Champ] was qualified to run for governor because the qualifications and requirements for the office of governor only exclude those who have been convicted of a felony involving accepting or giving or offering to give bribes or embezzlement or extortion of public money or
perjury, and because he qualified to run for governor notwithstanding the fact that he had prior convictions for attempt, for assault with intent to commit rape, assault with intent to commit oral copulation and voluntary manslaughter therefore he was under the mistaken impression that he was, since he was qualified to run for governor he could therefore possess a gun legally ...."
Five days later, defense counsel filed a second motion for judicial notice of the same abovementioned summary and explained it was relevant to a defense based on entrapment by estoppel. Defense counsel stated Champ could show the government affirmatively told him the proscribed conduct in section 29800 was permissible, his criminal history notwithstanding, because he possessed the right to vote and was eligible to run for Governor, "which inherently includes the right to keep and bear arms in and out of the militia." Defense counsel argued further that Champ relied on the government's statement. Defense counsel requested the trial court instruct the jury on the defense of entrapment by estoppel.
At a hearing on the motion, defense counsel stated that the Secretary of State's publication was not the only basis for the request for an instruction on entrapment, but that he believed "there were other discussions with other state officials that ... he was worthy and qualified to assume the office of governor." Defense counsel argued that, if a person is so qualified to assume the office, he or she was also qualified as commander in chief of the militia and there was "no reason to ask anyone whether he or she can keep and bear arms." According to defense counsel, Champ was relying on that information when he was in possession of a firearm, and urged the trial court to allow Champ to testify as such.
The trial court again denied the request for judicial notice and explained that the defense theory boiled down to a mistake of law, not a mistake of fact, and therefore, whether he believed he could possess the gun or not was irrelevant. The trial court noted that
"[Champ] has prior convictions. There are three of them. Each one will be one that would require him not to possess a firearm. He is aware of the fact that he has been previously convicted. The qualifications for governor do not include as limitations any of those three prior convictions, however, there's nothing before the court at this time that would allow the court to conclude that somehow Mr. Champ was led to believe that his prior convictions would allow him to possess a gun simply because they didn't exclude him from running for governor."The trial court found that granting the motion for judicial notice was not warranted and would mislead the jury.
Subsequently, at a jury instruction hearing, defense counsel supplied the trial court with the above referenced proposed instruction. Defense counsel argued a defendant could not be deprived of a meaningful opportunity to present a complete defense, a complete defense to count 4 involved "the estoppel defense," and Champ would testify, if given the chance, that he relied on the information given to him by the Secretary of State.
The trial court denied the request, stating:
"If the court were to take judicial notice of the qualifications to serve as governor that includes or only excludes individuals with certain prior felony convictions ... which Mr. Champ does not have, even if that were to be supported by additional testimony that Mr. Champ was told that as governor, if he were elected governor, he would be head of the militia or the highway patrol, there's nothing in the qualifications themselves for governor that say that someone who has been convicted of a felony that doesn't preclude them from being governor, but still is a felony conviction eliminates the requirement that they not possess firearms."
The trial court believed that, to accept defense counsel's argument, "would be to accept the proposition that anyone who's ever been convicted of a felony and prohibited from possessing a firearm, all they would have to rely on is the fact that they've looked up the qualifications for governor and that their felony conviction is not one that excludes them from being governor, and therefore, if they were elected as governor they could run the militia." The trial court also found the argument purely speculative because Champ was never elected governor. Nor did the trial court think Champ had been misled and denied the motion.
No Error
As the California Supreme Court has explained, "Entrapment by estoppel, based on principles of federal due process, has been recognized by the federal courts and in some sister states. The defense evolved from three United States Supreme Court opinions, although none used the term 'entrapment by estoppel.'" (People v. Chacon (2007) 40 Cal.4th 558, 567-568 (Chacon), citing United States v. Pennsylvania Industrial Chem. Corp. (1973) 411 U.S. 655; Cox v. Louisiana (1965) 379 U.S. 559; Raley v. Ohio (1959) 360 U.S. 423.) The Chacon court went on to note that "[f]ederal cases applying the entrapment by estoppel defense, while varying slightly in their formulation, rest on the premise that the government may not actively provide assurances that conduct is lawful, then prosecute those who act in reasonable reliance on those assurances. Under these limited circumstances, fundamental fairness supports the defense, even when the prosecution can prove each element of the crime." (Chacon, supra, at pp. 568-569, fn. omitted.)
Courts have cautioned, however, that the defense is "narrowly circumscribed." (Chacon, supra, 40 Cal.4th at p. 569, citing U.S. v. Spires (5th Cir.1996) 79 F.3d 464, 466 ["The defense is a narrow exception to the general rule that ignorance of the law is no excuse ...."]; U.S. v. Corso (2d Cir. 1994) 20 F.3d 521, 528 ["Judicial decisions indicate great caution should be exercised when it comes to the application of the defense"]; U.S. v. Howell (7th Cir. 1994) 37 F.3d 1197, 1204 ["Entrapment by estoppel ... is a defense that is rarely available"]; U.S. v. Smith (1st Cir. 1991) 940 F.2d 710, 714 [entrapment by estoppel is "recognized as applicable under certain, relatively narrow, circumstances"].)
To paraphrase the foregoing language in Chacon, it is clear that a defendant, to make a prima facie showing of the defense, must among other things show that he or she reasonably relied on assurances actively provided by a government official. In other words, the application of this narrowly circumscribed defense requires in part that the defendant show that an authorized government official "affirmatively told [the defendant that] the proscribed conduct was permissible" (U.S. v. Ramirez-Valencia (9th Cir. 2000) 202 F.3d 1106, 1109), "misrepresented" a "point of law" to the defendant (U.S. v. Funches (11th Cir. 1998) 135 F.3d 1405, 1407), "actively assure[d] a defendant that certain conduct [was] legal" (U.S. v. Spires, supra, 79 F.3d at p. 466), or "announced that the charged criminal act was legal" (U.S. v. Levin (6th Cir. 1992) 973 F.2d 463, 468). For instance, in Cox v. Louisiana, supra, 379 U.S. at page 569, the defendants relied on the police chief's statement that they could demonstrate in a certain area, but sheriffs arrested them for doing so. And in U.S. v. Tallmadge (9th Cir. 1987) 829 F.2d 767, 774, the defendant relied on incorrect advice from a federally licensed firearms dealer, regarding possession of weapons after his felony convictions had been reduced to misdemeanors.
Champ acknowledges that no published California opinion has extended the entrapment by estoppel defense to a defendant who unlawfully possesses a firearm, but contends certain authority supports "the expansion of the defense to his case." In support of his argument, he cites to People v. Bray (1975) 52 Cal.App.3d 494 (Bray), in which the appellate court reversed the defendant's conviction of former section 12021, which made it a felony for a convicted felon to possess a firearm. In Bray, defendant had been convicted in Kansas as an accessory after the fact and placed on summary probation. After completing his probation, he became a resident of California. While here, he registered to vote and on the registration form stated that he had been convicted of a felony but submitted an accompanying explanatory statement. He was subsequently permitted to vote by the registrar. He also registered to work as a security guard and again submitted a statement regarding his criminal background. The California Bureau of Collection and Investigative Services registered him as a guard or patrolman. He made several other applications requiring disclosure of his criminal background, including an application for the purchase of a gun, where he responded that he was not a felon nor had he been convicted of a crime requiring incarceration for more than a year. On one application he placed a question mark in the appropriate space concerning his criminal status. His conduct clearly indicated his misunderstanding of his status in California with reference to his Kansas conviction. His confusion was shared by various California officials, including the voting registrar, Bureau of Collections, and his California prosecutor. (See Bray, supra, 52 Cal.App.3d at pp. 498-499.)
The Bray court cautioned that its "decision should not be interpreted to mean instructions on mistake or ignorance of fact and knowledge of the facts are required every time a defendant claims he did not know he was felon." (Bray, supra, 52 Cal.App.3d at p. 499.) The court recognized the facts in Bray were quite unique. "Bray had been convicted in Kansas of what for California is an unusual crime, 'accessory after the fact,' and even the prosecutor claimed difficulty in knowing whether it was a felony. In addition, Bray on more than one occasion had been led to believe by state regulatory agencies he was not a felon: he was allowed to vote, he was registered in an occupation allowing him to carry a gun, and he was allowed to buy and register the gun. Throughout the trial, Bray laid the proper foundation for the instructions and he requested them. It is only in very unusual circumstances such as these that the giving of these instructions is necessary." (Ibid.)
Champ contends the significance of Bray "lies in the fact that it suggests that in determining whether a defendant unlawfully possessed a firearm, his reliance on governmental conduct or inaction as well as his subjective good faith constitute relevant factors to consider in assessing his culpability."
We find Champ's reliance on Bray misplaced. Champ, unlike Bray, knew he was a felon - he had prior convictions for voluntary manslaughter and two counts of assault to commit rape - and he stipulated to such for purposes of this particular count. In addition, Champ made no claims that he sought the advice of government officials regarding whether his status as a felon allowed him to carry a firearm. In any event, even if Champ, as governor, was allowed to possess a firearm despite his felon status, he was not elected governor. Running for governor does not convey the same rights as being the actual governor.
We find no error on the part of the trial court in refusing to give the entrapment by estoppel instruction.
B. Defense of Necessity and Right to Defend Property
Champ also contends the trial court erred when it refused to instruct on the defense of necessity and the right to defend property on the count 5 charge of vandalism. We disagree.
Background
Champ requested the jury be instructed with CALCRIM No. 3403, the defense of necessity, which provides, in pertinent part:
"The defendant is not guilty of __________<insert crime[s]> if (he/she) acted because of legal necessity. [¶] In order to establish this defense, the defendant must prove that: [¶] 1. (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/[or] someone else); [¶] 2. (He/She) had no adequate legal alternative; [¶] 3. The defendant's acts did not create a greater danger than the one avoided; [¶] 4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would also have believed that the act was necessary under the circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the emergency. [¶] The defendant has the burden of proving this defense by a preponderance of the evidence...."
To justify the defense of necessity instruction, defense counsel argued J.P., driving his quad, presented at the "onset [a] physical threat to Mr. Champ, Mr. Champ's friends and the people that he called his crew ... had Mr. Champ not stepped out in front, waved his hands, got the kid to stop, turned him around." Defense counsel argued Champ was "[c]utting these tires to prevent a greater harm, much greater harm, to Ms. Hancock's project [of resurfacing the road]." Defense counsel argued,
"[T]hat labor, when it's wage labor, when it's paid for labor, is property. Mr. Price, his son, his wife, that whole day they were depriving Bonnie Hancock of property and Mr. Champ put himself at risk, and the law shouldn't add to his fear, the fear of possible criminal prosecution for stepping in where law enforcement failed to tread after they'd received two urgent calls from Ms. Hancock."
The trial court refused the request, concluding
"[T]here is not substantial evidence to warrant giving this particular instruction. The court finds that there is insufficient evidence to establish necessity caused by economic factors which would make this valid to be given."
Champ also requested the jury be instructed with CALCRIM No. 3476, the right to defend property, which provides, in pertinent part:
"The owner [or possessor] of (real/[or] personal property may use reasonable force to protect that property from imminent harm. [A person may also use reasonable force to protect the property of a (family member/guest/master/servant/ward) from immediate harm.] [¶] ... [¶] When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed."
Arguing for an instruction on the right to defend property, defense counsel asserted that,
"Labor is property and this labor was being paid for and it wasn't indefinite that this labor was going to stand out there on that road and sweep up the mess that [the Prices were] making. So Mr. Champ had a right to defend the personal property, the labor had been contracted for from immediate harm, and in fact, destruction due to the ongoing efforts of Mr. Price and associates in seeking to destroy the object of that labor, make it impossible, frustrate the project to where they'd have to come back another day. And Mr. Champ testified about this. I mean, the sun was going to go down and when the sun went down if something wasn't done the project wasn't going
to be done and the whole crew was going to have to come back the next day to work some more and that was going to amplify the cost of the project severely."
The trial court denied the request, ruling the evidence insufficient to establish the property was in imminent harm and needed to be protected.
Evidence at Trial
J.P. testified that, on the day in question, he drove the quad up towards the paved easement road and encountered Champ. Before J.P. crossed the paved easement road Champ was on, Champ blocked the quad with his body, put his hand on the front of it and told J.P. he could not use that road. J.P. turned around to find another way to get to the storage unit. J.P. then drove the quad and trailer back down the way he had come, crossed over the easement road at another spot, and drove up to the storage unit. J.P. got off of the quad and was unlocking the storage unit door when Champ came running down, pulled out a knife and was "yelling and screaming" at J.P. that he was "tearing up" his road with the quad. Champ punctured the two driver's side tires of the quad and told J.P. "[W]hy don't you go get your dad and show you how mountain men do it." J.P. started to cry and drove back towards his house.
Champ testified that Hancock had told him that the Prices were "throwing dirt on the road" and they were "going to go and come back and do worse." Champ denied, in the first encounter with J.P., that he had grabbed the quad, but said he "waved [J.P.] off" by placing his hands in front of his face and moving them back and forth. Following that encounter, Champ observed a spot on the easement road where a "dually had thrown dirt all over the road," although it had been previously cleaned that day. According to Champ, in the second encounter, J.P.'s quad drove about 40 miles per hour through another area and ran over the working construction cones. Champ went to his car and pulled out a pocketknife and a handgun. J.P. was standing in front of the storage unit "just looking at a door on this trailer" when Champ yelled at him that he was not going to disrespect him or the road anymore. After J.P. said he was going to do whatever he wanted to do, Champ cut the quad tires and told J.P. to get "your daddy." Champ testified that he cut the tires because the quad was putting people in danger, tearing up the road, and making the roadwork hard. The quad was making extra work that was going to cost an extra four to five hours. The crew could not complete the work on the easement road that day if J.P. kept "doing what he was doing." According to Champ, the seal-coating crew cost over $100 an hour and quad tires cost about $50 each.
Defense of Necessity
"'The necessity defense is very limited and depends on the lack of a legal alternative to committing the crime. It excuses criminal conduct if it is justified by a need to avoid an imminent peril and there is no time to resort to the legal authorities or such resort would be futile.' [Citation.]" (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164, disapproved on other grounds in People v. Cook (2015) 60 Cal.4th 922, 939.) A defendant may invoke a necessity defense where the harm to be avoided is directed at a third party. (In re Weller (1985) 164 Cal.App.3d 44, 48.) And, the defense may be invoked where the necessity is economic in nature. (In re Eichorn (1998) 69 Cal.App.4th 382, 390-391.) However, the defense of necessity cannot be invoked "when it is the culpable conduct of the actor that creates or contributes to the atmosphere of necessity." (People v. Verlinde, supra, at p. 1165.)
"To justify an instruction on the defense of necessity, there must be evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency." (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)
Here, Champ theorizes CALCRIM No. 3403 was required because he cut the tires "trying to prevent a significant evil, namely the destruction of his employer's road by the minor's ATV." Champ contends there was no legal alternative to cutting the tires since J.P. had previously ignored his command to stay off of the road and driven over cones in the process. According to Champ, "nothing else would have stopped the boy." Champ also contends he did not create a greater danger by doing so, and the economic damage was less than what the ATV could have inflicted. Finally, Champ contends his belief that J.P. would do additional damage was reasonable because J.P. told him he would do what he wanted. Finally, Champ contends he did not contribute to the emergency.
We disagree with Champ. The evidence failed to show that the situation with the ATV was an "emergency" endangering the road, which would justify his actions of puncturing the tires of the quad. The evidence did not show that the easement road was in imminent harm from J.P.'s actions. No evidence was presented that J.P. crossed the easement road where the work had just been done, that he had damaged the road as a result, or that he even came close to the area that was being worked on. Although Champ testified that J.P. ran over work cones, it was not clear where the crew was actually working when J.P. crossed the road or what sections had been seal-coated in relation to the location. Champ himself testified that, after he punctured the tires, he "walk[ed] away up the hill back to where my crew was working," indicating that the quad was not in close proximity to where the road work was being done.
A reasonable person in a similar situation with similar knowledge would not have believed that puncturing the quad tires was necessary to prevent a significant evil. Champ had other options. At the time Champ punctured the tires, the quad was already stopped in front of the storage unit and J.P. was off the quad. Champ could have removed the key, or as evidenced by the fact that he told J.P. to go get his father, Champ could have spoken to J.P.'s mother or father.
Champ's belief that he was in the midst of an "emergency to prevent significant ... evil" as required by CALCRIM No. 3403, was not objectively reasonable under the circumstances.
Defense of Property
As noted by Champ, defense of property is codified in Civil Code section 50, which states: "Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a spouse, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest," "servant" being the antiquated synonym for an employee. (Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 615.)
As can be seen from Civil Code section 50 and CALCRIM No. 3476, defense of property requires that a defendant's use of force be motivated by a reasonable belief in the need to protect his or her property, or, as argued by Champ, the property of his employer, Hancock, from imminent harm. We find the record before us shows no substantial evidence supports Champ's claim that he reasonably acted in defense of his employer's property.
Again, the evidence did not show that the easement road was in imminent harm from J.P.'s actions. No evidence was presented that J.P. crossed the easement road where the work had just been done, that he had damaged the road as a result, or that he even came close to the area that was being worked on. Although Champ testified that J.P. ran over work cones, it was not clear where the crew was actually working when J.P. crossed the road or what sections had been seal-coated in relation to the location.
A reasonable person in a similar situation with similar knowledge would not have believed that puncturing the quad tires was necessary to defend the property. As noted above, Champ had other options. At the time Champ punctured the tires, the quad was already stopped in front of the storage unit and J.P. was off the quad. Champ could have removed the key, or as evidenced by the fact that he told J.P. to go get his father, Champ could have spoken to J.P.'s mother or father.
Conclusion
For the foregoing reasons, we conclude the court did not err by refusing to instruct the jury on entrapment by estoppel, defense of property and defense of necessity. In light of our conclusion, we need not, and do not, address the People's argument that any instructional error was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.