Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA061619. Dudley Gray II, Judge.
Wallin & Klarich, Robert C. Kasenow II, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason C. Tran and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Defendant appeals her conviction by a jury of three counts of felony child abuse (Pen. Code, sec. 273a, subd. (a)) and three counts of hit-and-run driving (Veh. Code, sec. 20002, subd. (a)). She contends the trial court prejudicially erred in instructing the jury on reasonable doubt, and in failing to sua sponte instruct on the defense of necessity. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant’s conviction arises from an incident in which she hit several parked cars while driving at night with her lights off and a missing tire. At the time, defendant had taken prescription medication and had three minors in the car with her who were not wearing their seat belts.
Prosecution Case.
On March 16, 2005, sometime after dark, Officer David Brock of the Gardena Police Department heard a radio call concerning a possible hit-and-run near 139th and Budlong in Gardena. When he received the call, he was in a parking lot in the 1700 block of El Segundo Boulevard. He heard the sound of metal scraping, and pulled onto El Segundo Blvd. He saw a trail of faint smoke, and followed it to the intersection of Western and El Segundo, where he turned north. There, he saw a car without its headlights on emitting smoke and sparks. The car was missing a tire, and the sparks were coming from one of its rims. He noted the license plate of the car and conducted a traffic stop. At trial, Officer Brock identified defendant as the driver.
When he approached the car, he saw two small children standing on the front seat, and an older male sitting behind the driver’s seat. The two children were defendant’s three and six-year old grandchildren, and the male in the back was her 15-year old son. None of the three passengers was wearing a seat belt. Defendant advised Officer Brock that she had taken Vicodin, Paxil, and some other medication she could not remember. Officer Brock believed defendant was under the influence of alcohol or drugs because she had nystagmus, her speech was slurred and she was blinking slowly.
On March 16, 2005, at approximately 6:30 p.m., David Saavedra parked his car, a black Toyota Camry, on Budlong Avenue near 139th Street on the west side of the street facing south. His driver’s side mirror had been damaged the previous week. At approximately 9:30 p.m., as he was taking out the trash, he encountered a police officer who asked if he owned a black Toyota Camry that had just been hit. Saavedra observed new damage to his car, including a scratch and missing plastic lining from the wheelwell.
Rose Vierya lived at 1335 141st Street in Gardena. At approximately 8:45 p.m. on March 16, 2005, she was at home when she heard a car go by the house and a scraping noise. She went outside and saw that the side mirror of her car was on the ground. She called 911, and later that night, a police officer came to her house and she showed him her car.
On March 16, 2005, at approximately 6:00 p.m., Jose Deras parked his car in the area of Mariposa and 141st Street in Gardena. At the time, the car had damage to the fender near the left rear tire. Later that evening, he noticed his car had a new scratch and the driver’s side mirror was broken.
Raymond Montoya parked his truck near his brother’s house at 13713 South Budlong Avenue on March 16, 2005 at about 8:45 p.m. While inside his brother’s house, he heard a loud noise, and looked out the window. He saw a car near the back bumper of his car and watched it drive by. He ran outside by his truck, and saw a tire fly off the car from the collision with his truck. The car’s wheel rim was touching the street and sparks were flying off. His truck had extensive damage. Montoya could see that the driver was wearing hair rollers. The car did not stop, and although Montoya and his brother attempted to follow the car, by the time they got into his brother’s car, the car was gone. He reported what they had seen to a police officer, and then returned to his brother’s house and traced the groove marks in the street to where defendant’s car was stopped near 120th and Western. The defendant was there and was wearing curlers in her hair.
Officer Raul Alarcon of the Gardena Police Department responded to a call of hit-and-run to the 13700 block of Budlong Avenue. He saw a truck parked on the west curb facing south that had extensive damage to the driver’s side. He also saw a tire on the sidewalk.
Sergeant Michael Bartlebaugh of the Gardena Police Department responded to the area of Western Avenue and 120th Street at approximately 8:45 p.m. on March 16, 2005 to assist Officer Brock in the traffic stop of defendant. He noticed that the front right tire of defendant’s car was missing, and he saw gouge marks in the roadway leading backwards. He went back to the site of the original collision on Budlong and followed the gouge marks to the location where defendant’s vehicle was stopped.
Carl Freeman, a traffic collision investigator for the City of Gardena, testified that Vicodin is a narcotic analgesic. A person taking Vicodin would have a sleepy appearance, and would be slow with lethargic movements. Her speech would be slurred. Paxil is a central nervous system depressant and will have an effect like alcohol.
The parties stipulated that at the time of her stop, defendant had Vicodin in her system, and that she had a prescription for the medication.
Defense Case.
Angelita Houston has been defendant’s friend since 1986. Prior to the incident, she had seen defendant’s car on several occasions. The car was old, battered and had dents. The last time she saw the car was in 2004, and it was not missing a tire at the time.
Anita Jones is a hairstylist; defendant had previously been a customer at the salon where she worked. On March 16, 2005, in the evening, Jones was at her salon, as she had been working on defendant’s son’s hair since 3:00 p.m., and did not finish until about 7:00 p.m. She looked out the window and saw defendant’s son get into defendant’s car, which was “banged up a little bit.” Jones watched the car because she could see sparks coming from the tires and that a tire was missing.
Thomas Hartwick, defendant’s fiancé, was living with her on March 16, 2005, at 1122 West 121st Street. It is about a mile to the intersection of Western and El Segundo. Defendant’s son Jason is a “big kid,” and weighs over 300 pounds. He believes that defendant generally uses caution when driving. Shortly after the incident, he followed defendant’s route and observed that there were grooves in each of the lanes, but there were no grooves in the beauty salon parking lot. Prior to the incident, defendant’s car was in poor condition, with numerous dents on the exterior. Hartwick had caused some of the damage himself. Defendant takes Norco and Vicodin on a daily basis.
Defendant testified that she had been taking Vicodin as prescribed since 1994. On March 16, 2005, she dropped her son Jason off at the beauty salon and went home. She played cards with her family, and took a nap. When she woke up, one of her grandchildren told her Jason was on the phone and needed a ride home. She took her two grandchildren and left in the car to pick him up. When she pulled into the parking lot of the beauty salon, she hit the curb and noticed the car was acting “funny.” She drove into a dip and saw sparks shoot up. Jason got in and they left the parking lot. They hit a dip and she saw more sparks. She thought she was getting a flat tire. She was concerned for the safety of her children because the area was bad, and decided to drive home in spite of her flat tire. The police stopped her at 120th and Western. She had driven on 120th Street because it was wide and well-lit, with a lot of traffic.
She denied being addicted to Vicodin. At the time of the incident, she was taking a medication to prevent bone loss and Paxil. She told the police that she was not sure how the tire had become flat, but she had hit the curb going into the beauty salon.
Rebuttal Case.
On March 15, 2006, at approximately 5:40 p.m., Kathy Thomas, a records technician with the City of Gardena, was driving near Normandie and El Segundo Avenue. Defendant was driving behind her, and when Thomas stopped in traffic, she thought defendant was going to rear end her because she was approaching so fast. Defendant slammed on the brakes, and Thomas saw smoke coming out of the tires. Defendant went around her and got into the next lane, drove into the lane of oncoming traffic, and went through a red light. Thomas identified defendant at trial as the driver of the car.
The jury convicted defendant of three counts of felony child abuse (§ 273a, subd. (a)) and three counts of misdemeanor hit-and-run driving (§ 20002, subd. (a)). The jury acquitted defendant of driving under the influence of drugs. (Veh. Code, § 23152, subd. (a).)
DISCUSSION
I. THERE WAS NO ERROR IN THE TRIAL COURT’S COMMENTS TO THE JURY CONCERNING THE IMPORT OF CIRCUMSTANTIAL EVIDENCE.
Defendant contends the trial court violated her due process rights because it lowered the prosecution’s burden of proof by commenting on the standard of reasonable doubt and equating it with everyday decision-making. Defendant does not contend that the instruction on reasonable doubt given (CALJIC No. 2.90) was improper. Rather, she contends that the trial court’s gloss on circumstantial evidence had the effect of lessening the burden of proof because the statements equated “reasonable doubt” with ordinary, everyday decision-making, resulting in a preponderance of the evidence standard of proof.
A. Factual Background.
During voir dire, the trial court explained to the jury the concept of circumstantial evidence. The court stated:
Circumstantial evidence is indirect evidence. Circumstantial evidence says, essentially, I can’t show you the thing, but I can show you all of these circumstances surrounding the thing, and if you believe these things, then you must believe that this other thing exists.
And even that might be a little complicated, but common examples are things like getting gasoline in your car, and these days we have to take out a second mortgage to fill up the tank. . . .
So when you decide to get gas, it’s all circumstantial evidence. Some of the circumstances you look at are your gas gauge. It used to read “F” now it reads “E.” Your gas gauge, it used to work, it probably still works. That little trip[]odometer, if you remember to push the button, it started at 0 at you’re at 253 and you get around 275 miles to the tank. And then you get gas about once a week and it’s been about a week. And you can sort of remember driving here, there, and everywhere and used up that tank.
So in about that much time, you look at those circumstances and decide you need gas. You have no direct evidence that the tank is empty unless you can somehow get down inside it, look around, measure the volume, see if there is any liquid in there, if that is, in fact, gasoline and so on.
So I don’t want to beat that up too much, but just one is direct evidence and the other is circumstantial.
When you actually put gas in the tank, I won’t go through all those steps, but it’s all circumstantial evidence. Has anybody ever seen a drop of gasoline go in their car? No. But you do all those things and [does] anybody have a reasonable doubt that you have gas in your car? That’s circumstantial evidence. (Emphasis added.)
B. Discussion.
Due process requires that the jury be instructed of the requirement that the defendant’s guilt be proved beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) When reviewing challenged jury instructions, we evaluate whether there is a reasonable likelihood the jury applied the instructions in a way that violates the Constitution. (People v. Welch (1999) 20 Cal.4th 701, 766.) In that regard, instructions are not considered in isolation. “Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury” (People v. Holt (1997) 15 Cal.4th 619, 677), rather than by reference to parts of an instruction or from a particular instruction (People v. Smithey (1999) 20 Cal.4th 936, 963-964). Jurors are presumed to be intelligent and capable of understanding and correlating jury instructions. (People v. Brock (2006) 143 Cal.App.4th 1266, 1277.) We will reverse only if it appears that the error was likely to have misled the jury. (Ibid.)
Defendant relies on People v. Johnson (2004) 115 Cal.App.4th 1169, in which the trial court instructed the jury with respect to reasonable doubt that it was “[a] doubt that has reason to it, not a ridiculous doubt, not a mere possible doubt. Because we all have a possible doubt whether we will be here tomorrow. . . . We could be run over tonight. . . . It’s not reasonable for us to think that we will because we plan our lives around the prospect of being alive. We take vacations, we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow. . . . But we wouldn’t plan our lives ahead if we had a reasonable doubt that we would, in fact, be alive.” (Id. at p. 1171.) Johnson found this instruction improper because the “judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. . . .[¶] . . .[¶] Such situations cannot be equated to the level of conviction necessary for finding guilt in a criminal case.” (Id. at p. 1172.)
Here, unlike Johnson, the trial court did not comment directly on the reasonable doubt standard; rather, it was trying to explain the concept of inferences and their role in making deductions from indirect, or circumstantial, evidence. Furthermore, the commentary was made at the beginning of trial, not during the post-evidence jury instruction phase. The record reflects that in addition to the correct reasonable doubt instruction, the jury was instructed pursuant to CALJIC No. 2.01 that “before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.” These factors indicate that it is not likely the error misled the jury.
II. THERE WAS NO ERROR IN THE TRIAL COURT’S FAILURE TO INSTRUCT SUA SPONTE ON THE DEFENSE OF NECESSITY.
A trial court’s duty to instruct, sua sponte, on particular defenses arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424.) Necessity is an affirmative defense. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1134.) The defendant therefore bears the burden of proof as to all elements. (See People v. Salas (2006) 37 Cal.4th 967, 971.) “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. [Citations.]” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.) The significant evil avoided must be imminent. (People v. Galambos (2002) 104 Cal.App.4th 1147, 1162-1163.)
Here, defendant did not establish her entitlement to a necessity instruction. The record does not reflect that she was in imminent danger from gangs or drug dealers on her way home. She likely contributed to the emergency with the reckless driving that caused the wheel to fall off. Further, she created a greater danger than the danger sought to be avoided by driving with her grandchildren standing on the seat without proper restraints in a car with no headlights and a missing tire. On these facts, the trial court was not required to instruct on the defense of necessity.
DISPOSITION
The judgment of the superior court is affirmed.
We concur: PERLUSS, P. J., WOODS, J.