Opinion
F050204
5-1-2007
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOSEPH GONSALVES, Defendant and Appellant.
Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Daniel Joseph Gonsalves was convicted by jury verdict of one felony count of petty theft with a prior conviction (Pen. Code, § 666). The trial court denied probation and sentenced him to 16 months in prison. On appeal, defendant contends (1) the trial court erred by refusing to instruct on the defense of necessity, (2) the trial court erred by refusing to instruct on mental impairment, and (3) the trial court abused its discretion by refusing to grant probation. We affirm the judgment.
All statutory references are to the Penal Code unless otherwise noted.
FACTS
At about 7:30 p.m. on May 24, 2005, a hot day, defendant entered Save Mart in Ceres wearing shorts, a T-shirt and a black jacket. Jeremiah North, who was working as a loss prevention officer, noticed the unlikely jacket and watched defendant enter the liquor department, a high-risk loss department. Defendant selected a bottle of vodka and a bottle of soda and placed them in the front of his cart. North radioed his partner, Phil Luke, who watched from the concealed catwalk in the upper level of the store. North briefly lost sight of defendant as he turned, but Luke maintained a visual on defendant and informed North as defendant concealed the bottle of vodka inside his jacket. Defendant removed the other items from his cart and put them on a shelf, went to the back of the store to get a six-pack of beer and walked toward a check stand. North spotted defendant as he approached the check stand carrying the beer. Defendant paid for the beer with a debit card and left the store. North and Luke stopped him and asked him to come back into the store. Defendant was cooperative at first, but on his way back into the store he became agitated and reached into his jacket. North and Luke ordered him to stop but he pulled out the bottle of vodka. Because he refused to follow orders and the officers did not know whether he had a weapon, they placed him against a freezer and handcuffed him. Inside his jacket, they also found two packs of batteries from the store.
Defendant seemed apologetic. North and Luke asked him why he had stolen the items. He said, "I wasnt — I wasnt thinking." He said he did not know why he had done it, he was not thinking, and he was sorry for taking the merchandise. He said his girlfriend, Debra Reineking, was an alcoholic and he was tired of paying for her alcohol.
Police Officer Julio Amador was dispatched to the store regarding the theft. He asked defendant why he had stolen the bottle of vodka. Defendant said his girlfriend had a drinking problem and he was tired of paying for it. When Amador asked why he stole the batteries, defendant dropped his head and shook it, saying, "I guess I wasnt thinking." Defendant was carrying a wallet containing a bank ATM card but no money.
Amador, North and Luke all testified it was typical, in their experience, for shoplifters to steal one item but pay for another. It was a strategy to evade detection. The type of vodka defendant took was a frequently stolen item in the store because its bottle was plastic, thin and wide, and very easily concealed.
Defense Evidence
Vincent Lapriore, Reinekings son, testified that his mother had been an alcoholic all of his life. She and defendant had lived together for 15 or 16 years. Lapriore would visit them frequently to make sure everything was okay because his mother had not responded to any treatment or rehabilitation. He had seen her behave aggressively, unreasonably and irrationally. He had seen her pass out. He described her as a violent drunk. She sometimes threatened to kill him, although he did not believe her. Her behavior had worsened over the years and she had even tried killing herself. She would become violent when she was coming off a binge or was craving alcohol. If she could not get the alcohol herself, she would try to force someone else to get it for her. She once attacked her own elderly mother when she refused to buy her alcohol. Lapriore had to physically remove her from her mother. Reineking usually drank vodka, often a half-gallon per day. Her mood improved when she got the alcohol, then deteriorated when it ran out.
Reineking had injured Lapriore when he was younger. She had given him a black eye, broken lip, sore chest and head, and had pulled his hair. When Lapriore was 13 years old, he witnessed Reineking stab a man when she was drunk.
Reineking testified she and defendant had been together for 16 or 17 years. She considered their relationship equivalent to a legal marriage. She was a recovering alcoholic and had quit drinking in July 2005. She started drinking to deal with and cover up the pain caused by some health issues. She drank only vodka. She hated beer, although defendant drank beer occasionally. She typically sent defendant to the store for vodka every day because she was so embarrassed and ashamed that she was drinking to kill the pain and knock herself out. She had been very involved in church and did not want anyone from church to see her buying vodka. She would be "really mean and nasty and throw a fit until [defendant] would go down and get [her] a bottle of vodka so [she] could knock [herself] out." She "would just be ragging on [defendant,] ... cussing and following him around until hed just go buy it." She had never been physically aggressive toward him, but she had "a machine gun mouth when [she was] drinking." She explained that she would say terrible things when she was drunk or when someone took her alcohol away. She was depressed and would do nothing other than drink and watch television. She knew it was a disgusting way to live. Defendant always seemed tired, helpless and disgusted. He was worn out and at his wits end. She believed he loved her and he did not know what to do.
Reineking recalled their usual conversations as something to the effect of, "[Defendant], you need to go to the store for me. I need a drink. Im out of vodka." He would respond, "[N]o, youve had enough," or "I dont have any more money." She would then give him money.
On May 24, 2005, she and defendant were at home together. She told him to go to the store to get her more vodka. He said, "[I]f I go to the store for you, will you leave me alone then and at least clean the kitchen or something." She promised to clean the house and take a shower if he would go get her a bottle of vodka. She may have also threatened to smash his drums and keyboards if he did not go. He told her not to rush him and she told him to hurry and go. He did not have any money so she gave him money for the vodka, which cost $5.99. She thought she was not suicidal on that particular day. She asked him about 10 times to go buy alcohol, eventually demanding it, and he finally left about three hours later.
She had never asked anyone to steal alcohol for her. She had never physically harmed her children and she had never stabbed anyone.
Defendant testified that Reineking began asking him for alcohol at about 8:00 a.m. that morning. She had been up all night and she was "beside herself" because she was out of alcohol. He told her he would get her some when he returned from Livermore at about 10:00 a.m. She was agitated and started throwing things from the garage out onto the driveway. He decided to go to Stop N Save because it carried a smaller bottle of vodka. He returned with the vodka then left for work. At about 10:30 a.m., Reineking called defendants cell phone and told him to stop at the store on the way home. He stopped for another small bottle and brought it home. He tried to make her feel guilty for what she was doing to herself and her family and then he went into the garage, which he considered his sanctuary from her drinking.
At about 1:00 p.m., he went to Save Mart to buy more vodka. He also bought some groceries to make dinner and he bought the batteries that were later found in his pocket. He estimated that he had gone to Save Mart an average of two times every day for the past three years. Reineking could drink a pint of vodka in an hour and a half to two hours. That day, he was doing some yard work and some housework. Reineking did not pick up after herself, so he was constantly cleaning the house behind her. She told him that if he would go get her a bottle of vodka, she would clean the kitchen. He also thought that if he did not go, she would go get the vodka herself. He knew she would say things that the neighbors would hear and they would call the police. He did not want the neighbors to hear her and he did not want people to look down on him because he was with her.
He also thought he may have bought the batteries on an earlier trip.
He bought a fourth bottle of vodka at about 4:00 p.m. Then, at about 7:30 p.m., he returned to Save Mart. His leg was hurting intensely due to the knee replacement surgery he had undergone about three months earlier. He did not feel impaired but he was in pain. He was wearing a black nylon jacket, not a heavy jacket. After his surgery, his bodys thermostat was not working properly. He went to the back of the store and got a six-pack of beer and put it in his cart. He testified:
"And I guess for some reason — Im going to pick up a bottle [of vodka], I guess Im going to have to come and get one any way. For some reason it just didnt make it in the cart. ...[F]or a long time I did that. Pretty much made a pack [sic] with my mom there. I wasnt going to be [stealing] anymore, wouldnt do it anymore."
When North and Luke stopped him, he wondered what the problem was. He was not sure what was going on. He did not really know what he had done until they told him he had taken something and put it in his jacket so he reached in and pulled it out. They pushed him into the freezer, forced his knee against the box and handcuffed him. At this point, he realized he had taken the vodka without paying for it. When they asked him why he took the vodka, he told them his wife was an alcoholic, the vodka was not for him, and he did not drink vodka. When Officer Amador asked him why he took the vodka, he said, "[M]y wifes an alcoholic. The bottle is for her." Defendant testified:
"Like I say, Im not real clear when I put it — I had plenty of money in the bank. I used my ATM card. I dont know exactly why it went in my pocket. It might have been I was embarrassed to show the clerk another bottle. It might have been I was burned out on the whole philosophy of having to go down there and do it. Im not real positive about it. I know I did it. I know its causing me a hell of a lot of problems, you know."
Defendant testified he recalled 75 to 80 percent of the events of that day. He had taken quite a few pain pills that night. He had taken between two and four Vicodin and was "in a little bit of a daze." He explained:
"My knee was hurting. Thats from what the doctor had prescribed me to take to alleviate some of the pain. That, you know, I guess, you know, impaired. [¶] Not impaired. I could function, but it was like I was, you know, the pain wasnt hurting me and it made me feel better. If you have to have your knee replaced, you understand that concept."
When asked on cross-examination if he intended to buy the vodka when he went into Save Mart, defendant testified that his normal routine would have been to buy the vodka. He did not know at what point he changed his mind and decided to steal it. He explained:
"It wasnt because I was impaired. It must have been — I could not really tell you what it was. Aggravation. Whatever makes a person do something unconsciously."
He testified that he remembered the beer but did not remember other events, such as putting the bottle of soda in the cart, putting the soda back, putting the vodka in the cart or putting it inside his jacket. He did remember paying for the beer. He thought he was unable to remember so many things because he probably took too many Vicodin, starting at about 3:00 a.m. that morning. He was in a lot of pain and had taken more pills than he normally did. He had taken about eight pills during the span of about 18 hours. He was not used to taking that many pills and he noticed the difference. He testified:
"I could drive fine. I wasnt really impaired. I dont know what the heck was the problem.... [¶] ... [¶] I felt fine as far as getting there and going through the store. I wasnt having any problem walking or talking, in that manner."
Defendant remembered telling North, Luke and Amador that he stole the vodka because his wife was an alcoholic and he just got tired of paying for her alcohol. When he told them he was not thinking, he was referring to the whole situation, not the batteries in particular.
Defendant testified that he did not steal the vodka because of money. If he needed money for vodka, Reineking would give him money.
DISCUSSION
I. Necessity Instruction
Defendant contends the trial court erred by refusing to instruct on the defense of necessity. After hearing all the evidence, the trial court refused to give the instruction because it found insufficient evidence that defendant had no legal alternative to committing the offense, one of the elements of the necessity defense. The court believed defendant negated that element because he had the money to pay for the beer and therefore could have paid for the vodka. Defense counsel argued that defendant had no legal alternative due to the "depth of the shame and embarrassment he would have felt by paying — by being seen to make a transaction involving that — that alcohol." Counsel continued:
CALCRIM 3403 (Necessity) provides: "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 defendants 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. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true."
"I think theres plenty of evidence for [defendant] and Miss Reineking as to the shame they both shared. They obviously made an effort to hide her alcoholism from the neighborhood and the community. Theres evidence that this was a store that [defendant] had frequented several times, [if] not hundreds of times. I think he reasonably believed that if his wifes alcoholism had been exposed, it would have been a most intolerable shame."
The court disagreed, stating these reasons:
"One is that he bought vodka from other stores and he could have bought vodka at another store. He was buying vodka from the Save Mart store for the 150 something time. [¶] Secondly, he bought beer. And Im not sure theres a distinction. So I dont think the necessity defense works for that reason."
Defense counsel argued that "the shame reached a point where it become intolerable," and that a six-pack of Budweiser beer "doesnt carry the same stigma as a cheap plastic bottle of vodka, the kind ... which somebody would normally drink out of a brown paper bag." The court responded: "[Defendant] said money was no object. And he could have bought great booze, apparently."
The trial court must instruct on the general principles of law relevant to the issues raised by the evidence, namely, those principles closely and openly connected with the facts before the court that are necessary for the jurys understanding of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 715, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) Specifically, with respect to instructions on defenses requested by a defendant, a trial court is required to instruct on those defenses only if the defendant presents substantial evidence to support a theory of defense, that is, enough to deserve consideration by the jury. If the evidence should prove minimal or insubstantial, the court need not give the instruction. (In re Christian S. (1994) 7 Cal.4th 768, 783.) If the court refuses to give the defense instruction, the standard of review on appeal is whether there was evidence deserving of consideration from which reasonable jurors could conclude that all of the elements of the defense have been satisfied. (People v. Trippet (1997) 56 Cal.App.4th 1532, 1539.)
There are six elements to the defense of necessity: "Except as to crimes that include lack of necessity (or good cause) as an element, necessity is an affirmative defense recognized based on public policy considerations. [Citations.] To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that [he or] she violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [he] did not substantially contribute to the emergency. [Citations.]" (People v. Kearns (1997) 55 Cal.App.4th 1128,1134-1135, italics added.) The defendant has the burden of proving the defense of necessity by a preponderance of the evidence. (People v. Heath (1989) 207 Cal.App.3d 892, 899.)
Here, as the trial court correctly explained, there was no evidence that defendant did not have a legal alternative to stealing the vodka. He paid for his beer and he admitted that he had the money to pay for the vodka. There was no substantial evidence that shame or embarrassment compelled him to steal the vodka instead of pay for it. He repeatedly bought vodka for his wife in the past and four other times during that day. He said he was tired of paying for his wifes alcohol, but if he was embarrassed or ashamed, he could have gone to another store, as he had done before. The trial court had no duty to give an instruction that was not supported by substantial evidence. Accordingly, the court did not err.
We need not decide whether sufficient evidence supported the remaining elements of the necessity defense.
II. Mental Impairment Instruction
Defendant contends the trial court erred by refusing to instruct on the defense of mental impairment because it found the evidence did not establish a mental disease or defect. Echoing the arguments he posed at trial, defendant argues that the officers testified defendant said he did not know what he was thinking, and that defendant was "admittedly feeling impaired by the pain and pills he was taking for his knee, and, in combination with the duress of his domestic situation, he was not thinking rationally as a normal person."
CALCRIM 3428 (Mental Impairment: Defense to Specific Intent or Mental State) provides: "You have heard evidence that the defendant may have suffered from a mental (disease[,]/[or] defect[,]/[or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or ... mental state required for that crime.
"The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state, specifically: `insert specific intent or mental state required, e.g., `malice aforethought, `the intent to permanently deprive the owner of his or her property, or `knowledge that ... . If the People have not met this burden, you must find the defendant not guilty of `insert name of alleged offense. [¶] ... [¶] ..."
In the trial court, after the evidence was heard, defense counsel argued for the instruction, as follows:
"[A]lthough he wasnt feeling impaired by the Vicodin hed been taking, he was somewhat distracted, or impaired even, to some degree by the amount of pain he was feeling from his leg, in combination, of course, with the duress he was under as a product of his domestic situation. He wasnt thinking like a normal person. He got up and testified it was completely unlike what most people would consider to be a normal situation."
The court responded that defendant testified he was not impaired. He drove to the store and purchased vodka four other times that day and numerous times on previous days. He even drove to Livermore that morning after having taken Vicodin. Defense counsel argued:
"He doesnt need to be impaired 24 hours a day. He testified for at least some brief moment, for at least a moment long enough for him to secrete the vodka. That appeared to him to have been unconsciously based on his lack of detailed memory of having done that. So theres some lapse of some kind of motive thinking where he wasnt medically unconscious, but at least not fully aware of how he was thinking and not acting rationally."
After further consideration, the court stated it would not give the instruction because there was no evidence of mental impairment or disorder, and according to People v. Moore (2002) 96 Cal.App.4th 1105 (Moore), expert medical testimony is necessary to establish a defendant suffered from a mental disease, mental defect or mental disorder.
CALCRIM 3428 is in the nature of a pinpoint instruction that is required to be given only on request where substantial evidence supports the defense theory. (People v. Ervin (2000) 22 Cal.4th 48, 91, [referring to CALJIC No. 3.32, the equivalent of CALCRIM 3428]; In re Christian S. (1994) 7 Cal.4th 768, 783.) "`Mental illness [or mental defect] is a medical diagnosis .... (People v. Kelly (1992) 1 Cal.4th 495, 540, italics added.) Expert medical testimony is necessary to establish a defendant suffered from a mental disease, mental defect, or mental disorder because jurors cannot make such a determination from common experience. [Citation.]" (Moore, supra, at pp. 1116-1117.) Here, as in Moore, where no such expert medical testimony was presented, "[d]efendant requested an instruction that would have stated to the jury that it had received evidence of a mental disease, mental defect, or mental disorder of the defendant at the time of the commission of the crime charged, even though no such competent evidence was presented. Without expert medical testimony establishing that defendant was suffering from a mental disease, defect, or disorder at the time of the commission of the crime, there was no evidentiary or legal basis for the trial court to instruct with [CALCRIM 3428]. [Citations.])" (Id. at p. 1117.) Furthermore, at the time of the offense, defendant did not mention any impairment; instead, he explained he stole the vodka because he was tired of paying for it. At trial, he testified he had taken several Vicodin but was not impaired. He said he did not commit the crime because he was impaired. For all of these reasons, the trial court correctly refused to instruct on mental impairment.
Moore noted: "The cases we have found that approve the giving of CALJIC No. 3.32 have all done so where expert medical testimony was adduced on the question of defendants mental disease, etc. (See People v. Musselwhite (1998) 17 Cal.4th 1216, 1229-1230, 1247-1249 [expert testimony defendant suffered from mental disease; trial court properly gave an instruction consistent with CALJIC No. 3.32]; People v. Cox (1990) 221 Cal.App.3d 980, 987 [same]; People v. Molina (1988) 202 Cal.App.3d 1168, 1171 [same]; People v. Young (1987) 189 Cal.App.3d 891, 907-909 and fn. 6 [same].)" (Moore, supra, 96 Cal.App.4th at p. 1117.)
III. Denial of Probation
Prior to the present offense, defendant had been convicted twice of felony theft charges. The trial court was therefore permitted to grant probation only if it found his case to be "unusual" such that "the interests of justice would best be served" by granting probation. (§ 1203, subd. (e)(4).) At the sentencing hearing, the court concluded defendants case was not unusual. Accordingly, it reluctantly denied probation and imposed a 16-month prison term. Defendant maintains the trial courts failure to find unusual circumstances justifying a grant of probation was an abuse of discretion.
Section 1203, subdivision (e)(4) states: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] ... [¶] (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony."
When a defendant is presumptively ineligible for probation, a trial court first decides whether the presumption is overcome because the case is unusual and the interests of justice would be served by a grant of probation. (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 830.) California Rules of Court, rule 4.413(b), states that in making that determination the court should first apply the criteria in rule 4.413(c) to evaluate whether the statutory limitation on probation has been overcome; if it has, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.
All references to rules are to the California Rules of Court.
Rule 4.413(c) provides in relevant part:
"(c) The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) Facts relating to basis for limitation on probation [¶] A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: [¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence.... [¶] (2) Facts limiting defendants culpability [¶] A fact or circumstance not amounting to a defense, but reducing the defendants culpability for the offense, including: [¶] (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence."
The decision whether to grant or deny probation is within the broad discretion of the trial judge. (§ 1203, subd. (b)(3).) Moreover, rule 4.413(c) does not require that the court find a case unusual if it finds the specific criteria exist; instead, it states the criteria "may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate." (Italics added.) "[I]f the statutory limitations on probation are to have any substantial scope and effect, `unusual cases and `interests of justice must be narrowly construed and, as rule [4.413] provides, limited to those matters in which the crime is either atypical or the offenders moral blameworthiness is reduced. A previous course of good conduct and good standing in the community is not `reasonably related [citation] to the decision of whether an offense constitutes an `unusual case where the interests of justice would be best served by granting probation." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.)
We review the trial courts decision denying a grant of probation solely for an abuse of discretion, and will not reverse such a decision unless it is arbitrary, capricious or exceeds the bounds of reason. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Edwards (1976) 18 Cal.3d 796, 807.) A defendant has the burden of demonstrating clearly that the denial was irrational or arbitrary. (People v. Cazares (1987) 190 Cal.App.3d 833, 837.) A determination that a case is not unusual under section 1203 is subject to the same standard of review. (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.)
In our opinion, the trial court in this case carefully considered, even labored over, the factors behind its decision to deny probation. Despite its preference of imposing probation, the court determined it simply could not define this case as unusual under the terms of rule 4.413. We do not believe this thoughtful decision was irrational or arbitrary and therefore we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We Concur:
Cornell, Acting P.J.
Dawson, J.