Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 209449.
MARCHIANO, P.J.
Defendant Jorge C. Jimenez sold four rocks of crack cocaine to an undercover police officer. A jury convicted him of one count of sale of a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) The trial court sentenced defendant to four years in state prison. He contends the trial court erred by ruling admissible two prior convictions for sale of a controlled substance. He also contends the court erred by failing to instruct sua sponte on an alleged rule of law regarding the defense of legal necessity, which defendant advanced by claiming he sold the drugs out of fear of his supplier. We disagree with defendant’s contentions and affirm.
I. FACTS
In advancing his defense of legal necessity, defendant testified and admitted the facts of the offense. Accordingly, the facts are not in dispute.
On January 21, 2009, San Francisco Police Officer Kevin Healy, working undercover for the narcotics detail, planned a “buy/bust” operation. As part of the operation he made a phone call at approximately 5:00 p.m. to a man who spoke with an Hispanic accent. Healy told the Hispanic male he wanted to buy some “roca, ” street slang for base rock cocaine. Healy said he wanted to buy $100 worth. The Hispanic male told him to drive to Silver and Mission Streets and call him back.
Healy took five marked $20 bills that he had photocopied and time-stamped, and drove to the site in an unmarked car which did not look like a police vehicle. He called the Hispanic male, who told him to drive to Maynard and Congdon Streets. Healy complied and waited in his car.
Within a minute, defendant approached Healy’s car from behind and got in. He asked Healy if he was a police officer. Healy said he wasn’t and asked for his “roca.” Defendant said he did not have the crack cocaine on him, but he needed to go buy it. He asked Healy to give him the $100 so he could make the purchase for Healy. Healy told defendant he did not want to get ripped off. The two agreed that Healy would give defendant $40 and defendant would return with $80 worth of “roca, ” after which Healy would give defendant the other $40. Healy gave defendant two of the marked $20 bills.
Defendant wanted Healy to drive him to Geneva and Mission to get the rock cocaine. This was outside the range of the officers covering Healy as part of the operation, so Healy dropped defendant off on Mission Street so he could take the bus. After defendant got out of the car, Healy radioed his cover officers and explained what was going on.
Defendant called Healy at approximately 6:15 p.m. and said he had got the “roca” and was heading back on the bus. When defendant arrived he again approached Healy’s car from behind and got in. He handed Healy four rocks of rock cocaine and Healy gave him two more marked $20 bills. Healy drove one block to Craut Street and signaled waiting officers to arrest defendant. They arrested him as soon as he got out of Healy’s car.
Defendant did not possess any other money but the two marked $20 bills Healy had just given him in the car. He also did not possess any pipes or paraphernalia for smoking rock cocaine.
A criminalist testified the four rocks contained 1.04 grams of rock cocaine.
Defendant testified. He came to the United States illegally in 2001 and worked in a Chinese restaurant for three years. When the restaurant closed he had trouble finding work and started smoking crack cocaine. He began to sell crack cocaine in order to buy some for himself.
Defendant admitted selling the rock cocaine to Officer Healy on January 21, 2009. Because the trial court ruled them admissible, which we discuss below, defendant admitted two prior convictions for selling crack cocaine to undercover police officers in October 2006 and September 2007. No one forced him or threatened him to make those two sales.
In January 2009, defendant was buying his cocaine from someone named Calejo, who sold on Geneva Avenue. Sometimes defendant would bring customers to Calejo, who in return would give him cocaine to smoke. Defendant testified he believed Calejo was a violent person. He had never seen Calejo commit a violent act, but he had heard stories about Calejo shooting people.
On January 21, 2009, defendant owed Calejo $700 because he had smoked rocks of cocaine that Calejo had given him to sell. Calejo told defendant to hurry up and pay him for the cocaine, “otherwise [I] knew what had to happen to me.” Defendant interpreted that to mean that Calejo would show up at his house or grab him on the street and shoot him. Defendant believed the stories Calejo would tell about him doing similar things to others.
Defendant did not go to the authorities to seek protection from Calejo because he was an illegal immigrant and feared he would be deported. He also feared “the people [Calejo] got, ” presumably a reference to violent associates.
Defendant testified that when Healy called him he planned to take Healy to Calejo, apparently as a new customer, and get cocaine to smoke in return. He sold the drugs to Healy because he was threatened by Calejo because of the debt, and he thought he could get out of the debt by bringing Calejo customers. But he admitted the $40 he had from Officer Healy just before his arrest would not have been turned over to Calejo, but used to buy cocaine for himself. After his arrest, defendant never told police officers he was being threatened by Calejo.
On cross-examination, defendant admitted that he felt no kind of emergency regarding Calejo prior to the phone call from Officer Healy. When the trial court asked defendant whether there had been “some kind of an emergency regarding Calejo, ” defendant replied, “No.” When defendant went to Calejo’s house with the initial $40 from Healy, Calejo did not even know about the drug deal. Calejo did not order defendant to sell drugs to Healy. Calejo did not say anything to defendant about the $700 debt or ask him for the money. Defendant admitted he was more concerned about getting cocaine for himself than any fear of Calejo. Defendant had never seen Calejo with a gun or a knife and Calejo had never threatened to kill him. Calejo was not in the area of the drug buy.
As we discuss below, the jury was instructed on the defense of legal necessity. The jury rejected that defense and convicted defendant.
II. DISCUSSION
Defendant contends the trial court erred by ruling admissible his two prior convictions for sale of a controlled substance. He further contends that the court erred by failing to instruct sua sponte on an alleged rule of law regarding the defense of legal necessity, i.e., that the defense applies not only to an “emergency, ” as that term is commonly understood, but to situations in which the defendant acts to avoid a harm he reasonably anticipates in the near future. We disagree for the reasons set forth below.
Prior Convictions
As noted in the statement of facts, defendant suffered two prior convictions for selling drugs only a few years before the instant offense. Prior to trial, defendant moved to exclude the prior convictions pursuant to Evidence Code section 1101, subdivision (a). That statute, subject to certain exemptions, precludes the use of character evidence―including specific instances of conduct―to prove conduct on a specific occasion. Defendant also moved to exclude the prior convictions under section 352.
Subsequent statutory references are to the Evidence Code.
The trial court ruled both prior convictions admissible. “[¶] The Court thinks the priors are directly relevant and do undercut the defense of [legal necessity]. The previous sales do not uniquely tend to evoke an emotional bias or emotional response concerning the defendant. I don’t think... that the jury would convict the defendant for the offense in this case merely because they know of the previous sales. I don’t think that it interjects an extraneous factor into the case. I don’t think that they are merely marginally relevant, but essentially misleading. I don’t think that’s the situation. Remoteness is not a problem. Consumption of time isn’t either. There’s a similar pattern of conduct, a similar apparent intent. I think the conduct, I don’t think it’s misleading or confusing, and they’re directly on the issues concerning [legal] necessity....
“[¶] I think the priors are directly relevant on the issue of deciding whether the defendant’s beliefs were reasonable and under the requirement that the jury consider all the circumstances that were known and appeared to the defendant and considered what a reasonable person in the same position as the defendant would have believed. Further [the priors bear], concerning the necessity defense, [on] whether there was an emergency, whether he had adequate legal... alternatives or not, and whether he, by his conduct, substantially contributed to the emergency or claim of emergency.
“[¶] So with that in mind, the Court believes that they’re useful and admissible for those purposes....”
Because of this ruling, defendant admitted the prior convictions during his testimony.
The trial court properly admitted the prior convictions under section 1101, subdivision (b), the principal exception to section 1101, subdivision (a). Evidence of a prior criminal act is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than [the defendant’s] disposition to commit such an act.” (Evid. Code, § 1101, subd. (b); see People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels).)
The trial court has discretion to admit such evidence if its probative value outweighs its prejudicial effect, and after considering “(1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant.” (Daniels, supra, 52 Cal.3d at p. 856, citing People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson).) The court should exclude the evidence “[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear....” (Thompson, supra, 27 Cal.3d at p. 316.) But a trial court’s ruling admitting evidence of other crimes under Evidence Code section 1101, subdivision (b), may not be overturned absent an abuse of discretion. (People v. Hayes (1990) 52 Cal.3d 577, 617.)
Here, the trial court properly determined that the prior convictions were admissible to show defendant’s intent. This finding is strengthened by defendant’s reliance on the defense of legal necessity. The issue of his intent is crucial to his claim that he sold the drugs because he feared Calejo. His prior conduct of selling drugs is directly relevant to the credibility of the necessity defense. Contrary to defendant’s claim on appeal, the priors were not “only marginally relevant” to his defense of necessity. The fact that he had twice before sold drugs to an undercover officer of his own free will is directly relevant to his claim at trial that he only sold the drugs to Healy because he had to.
Defendant also claims the trial court should have excluded the priors under section 352 as more prejudicial than probative. We review a section 352 determination for abuse of discretion. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) Their admission was far more probative than prejudicial for the reasons thus discussed. The trial court weighed the probative value of the evidence against the prejudicial value and did not abuse its discretion.
Legal Necessity Instruction
The trial court instructed the jury on the defense of legal necessity according to Judicial Council of California Criminal Jury Instructions (2011), CALCRIM No. 3403, as follows: “[¶] The defendant is not guilty of sale of a controlled substance if he acted because of legal necessity.
“[¶] In order to establish this defense, the defendant must prove six things.
“[¶] One, he acted in an emergency to prevent a significant bodily harm or evil to himself;
“[¶] And two, he had no adequate legal alternative;
“[¶] Three, the defendant’s acts did not create a greater danger, if any, than the one avoided;
“[¶] And four, when the defendant acted, he actually believed that the act was necessary to prevent the threatened harm or evil;
“[¶] And five, a reasonable person would also have believed that the act was necessary under the circumstances;
“[¶] And six, 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 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 above-listed items is true.” (Italics added.)
Defendant cites dictionary definitions of “emergency” as a set of circumstances requiring immediate action, and claims the court should have sua sponte instructed the jury that the defense of legal necessity is broader in scope and applies to a threat in the immediate future which, presumably, does not require immediate action. He relies on the distinction between duress and necessity described in People v. Heath (1989) 207 Cal.App.3d 892 (Heath).
Defendant also relies on In re Eichorn (1998) 69 Cal.App.4th 382, which is inapposite. The defendant was charged with illegally sleeping in a public place. (Id. at pp. 384−385.) The issue in that case was not the meaning of “emergency, ” but whether sleep deprivation was a “significant evil.” (Id. at pp. 388−390.)
After noting that duress involves a response to “an immediate and imminent danger” (Heath, supra, 207 Cal.App.3d at p. 900), the court stated: “The defenses of duress and necessity are clearly different. The duress defense, through its immediacy requirement, negates an element of the crime―the intent to commit the act. The defendant does not have the time to form criminal intent because of immediacy and imminency of the threatened harm.... [Citation.] The necessity defense, in contrast, contemplates a threat in the immediate future. [Citation.] The defendant has the time, however limited, to consider alternative courses of conduct....” (Id. at p. 901.)
Thus, when Heath’s drug supplier, to whom he owed money, pointed a gun at him in a car and told him he would kill him unless he committed a burglary to pay his debt, that constituted “an imminent threat” to Heath’s life which “clearly falls within the ambit of the duress defense.” (Heath, supra, 207 Cal.App.3d at p. 902; see id. at p. 896.) But when Heath got out of the car, approached the targeted residence, and entered it to commit theft, he “was no longer subject to the same imminency of harm as when threatened in the vehicle.” (Id. at p. 902.) Once Heath was outside the armed supplier’s immediate presence, “the threat became one in the immediate future allowing [Heath] an opportunity, albeit brief, to balance his options, which is the very essence of the necessity defense.” (Ibid.; see id. at p. 896.)
Defendant argues the trial court should have instructed the jury sua sponte that the defense of legal necessity has broader application than the common understanding of the term “emergency, ” and could apply to harm defendant felt he would suffer in the immediate future―i.e., physical harm inflicted on him by Calejo. There are two flaws in defendant’s argument.
First, defendant has waived the issue. A trial court has a duty to instruct sua sponte only on “general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) If defendant wanted an instruction explaining or refining the meaning of the term “emergency” as used in CALCRIM No. 3403, he should have asked for one. “[A] defendant is not entitled to remain mute at trial and scream foul on appeal for the court’s failure to expand, modify, and refine standardized jury instructions.” (People v. Daya (1994) 29 Cal.App.4th 697, 714.) The instruction is not one that the court is under sua sponte duty to give.
Second, the standard necessity instruction was proper. A defense of legal necessity requires a showing of imminent peril―i.e., the threat of harm in the immediate future. (See, e.g., People v. Galambos (2002) 104 Cal.App.4th 1147, 1162−1163.) The fact that a defendant may have a brief interval to choose whether to commit the crime in the face of that peril does not negate the requirement of imminency. That requirement is adequately and accurately explained to the jury by the use of the word “emergency.”
We do not know on which ground or grounds the jury rejected defendant’s necessity defense. The jury may have found that defendant was in no imminent peril, or that, despite his immigration status, defendant should have gone to the police about Calejo. In any event, the jury was properly instructed on the defense of necessity and the sua sponte instruction now urged by defendant was not required.
III. DISPOSITION
The judgment of conviction is affirmed.
We concur: Margulies, J., Banke, J.