Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F04105
SIMS, Acting P. J.Defendant Joseph Ortiz appeals following his conviction for possession of a weapon (dirk, dagger or sharp instrument) in a penal institution. (Pen. Code, § 4502; undesignated statutory references are to the Penal Code.) Defendant contends the trial court (1) erred in failing to instruct sua sponte on the defense of necessity, and (2) abused its discretion in denying defendant’s motion to strike prior conviction allegations to avoid “three strikes” sentencing. (§§ 1385; 667.) We shall affirm the judgment.
We use the name as it appears in the abstract of judgment. We note, however, the complaint named “JOSEPH M ORTIZ” as defendant, as did the jury verdict. The probation report says “JOSEPH MANUEL ORTIZ.” The notice of appeal signed by trial counsel says “JOSE ORTIZ.” The notice of appeal submitted by defendant in propria persona says “JOSEPH M. ORTIZ.” Defendant’s appellate counsel submitted appellate briefs for “JOSEPH MANUEL ORTIZ.”
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with possessing and carrying upon his person a dirk, dagger or sharp instrument, to wit, a metal rod sharpened to a point measuring approximately seven inches long, on January 12, 2007, while confined in a penal institution (§ 4502 ). The complaint also alleged for sentencing purposes (§§ 667, subd. (b)-(i), 1170.12) two prior serious felony convictions -- a 1999 robbery and a 2004 attempted murder (while incarcerated). The prior convictions were bifurcated.
Section 4502, subdivision (a), states, “Every person who, while at or confined in any penal institution... possesses or carries upon his or her person or has under his or her custody or control... any dirk or dagger or sharp instrument... is guilty of a felony and shall be punished by imprisonment in the state prison for two, three, or four years, to be served consecutively.”
The prosecutor moved in limine to exclude any defense of duress or necessity. Defense counsel said he did not see necessity as a defense at that point. The trial court opined necessity seemed inapplicable, but the court would not curtail the defense from presenting its case.
At trial, a correctional officer testified that, on January 12, 2007, after a search of defendant’s cell and person, defendant was placed on a “contraband watch” or “potty watch,” the purpose of which was to determine if defendant had hidden contraband in his rectum. Defendant was dressed in special clothing and monitored for at least five hours, until he had a bowel movement, a search of which revealed a wrapped object -- a seven-inch blade and handle wrapped in paper towels and cellophane.
There is some indication in the record that it took days rather than hours. For our purposes, it does not matter.
Defendant’s cellmate, Manuel Perez, testified as a defense witness, that the weapon was his (Perez’s). Perez and defendant were members of the same prison gang, but Perez held a position of authority as “squad leader.” If a subordinate disobeys an order, and Perez finds the disobedience a threat to the gang, Perez will stab or try to kill the subordinate.
On the day in question, Perez learned his cell was going to be searched by the correctional officers. Because Perez had already hidden gang paperwork in his own rectum, he ordered defendant to hide the wrapped weapon in defendant’s rectum. Defendant initially refused. Perez, who also had a razor, threatened to stab defendant. Defendant hid the wrapped weapon in his rectum, and Perez flushed the razor down the toilet. The gang paperwork in Perez’s rectum was discovered when he was placed on contraband watch. Perez said he dropped out of the gang shortly after this incident (partly because he expected to be stabbed for losing the gang paperwork if he returned to the cellblock where his gang was housed) and was testifying “Because I feel responsible for Mr. Ortiz being busted with my piece. I, basically, don’t believe it should be him on that defendant’s chair. I believe it should be me.” Perez’s expected release date is around 2025 or 2028.
Defendant testified at trial that he is incarcerated for armed robbery; he did have the weapon in his rectum, but it belonged to Manuel Perez, defendant’s cellmate of several months. Both were members of the same prison gang, but Perez had a position of authority. Defendant had been a gang member for eight years, since he entered prison.
Defendant testified that, on the day in question, Perez knew their cell was about to be searched and told defendant to “hoop” the wrapped knife, i.e., to hide it in defendant’s rectum. Defendant said no. Perez told him again. Defendant again said no. Perez threatened defendant with a razor, and defendant gave in.
Defendant testified that when he initially refused to conceal the weapon, Perez “could of [sic] tore me up right then and there, but he didn’t. And then when I refused again, that’s when he -- that’s when -- that’s when he was right there, and I’m facing that, and I can’t -- I have to break it down, so I had to go with it.”
Defendant testified:
“Q When you were inserting that weapon, did you feel that you had a choice?
“A I didn’t have a choice.
“Q Did you feel that if you -- if you refused that you would get be [sic] stabbed or killed?
“A I know I was going to get stabbed or killed.”
Within the gang structure, Perez was a “squad leader” with authority to order defendant to do things. It was against the gang’s “bylaws” for defendant to refuse Perez’s order to hide the weapon. The gang adapted its military-type structure from the marines. It would have been inappropriate for defendant to ignore Perez’s command, “Because everything we do as an organization behind the walls is based on security measures.... If [weapons and gang paperwork] get into the hand of our enemies, of the administration, the canines, which is the correctional officers, we have serious repercussions” from the gang, most likely “getting whacked.”
There was conflicting evidence as to whether defendant or Perez related Perez’s threat to defendant when they later quit the gang and were “debriefed” about gang activities by correctional officers.
The trial court was not asked to and did not instruct on necessity as a defense. The court did instruct on duress as a defense, as follows:
“The defendant is not guilty of possession of a weapon in a penal institution if he acted under duress. The defendant acted under duress if, because of threat or menace, he believed his life would be in immediate danger if he refused a demand or request to commit the crime. The demand or request may have been expressed or implied.
“The defendant’s belief that his life was in immediate danger must have been reasonable. When deciding whether the defendant’s belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant, and consider what a reasonable person in the same position as the defendant would have believed.
“A threat of future harm is not sufficient. The danger to life must have been immediate.
“The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty of possession of a weapon in a penal institution.”
During deliberations, the jury asked for a clear definition of “immediate duress.” The court asked whether the jury was asking for further definition of duress or “immediate danger.” The jury did not respond and soon thereafter returned a verdict finding defendant guilty of possessing a weapon in a penal institution.
Defendant admitted the two prior convictions but asked the trial court to dismiss one of the prior conviction allegations under section 1385. The trial court denied the motion.
The court sentenced defendant, under the three strikes law, to prison for 25 years to life with the possibility of parole.
DISCUSSION
I. Necessity Defense
Defendant argues the evidence obligated the trial court to instruct the jury sua sponte on the defense of necessity, and if the obligation is not sua sponte, then his trial counsel rendered ineffective assistance of counsel by failing to request the instruction. Defendant thinks the necessity defense would have avoided any problem the jurors might have had with the duress defense’s requirement of immediate threat. We shall conclude the trial court was not required to instruct on necessity, sua sponte or upon request, and thus there was no ineffective assistance of counsel.
A trial court has no duty to instruct on a defense of necessity, where the evidence is insufficient as a matter of law to satisfy the elements of the defense. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1036.) Where evidence is insufficient as a matter of law to support a defense, counsel does not render ineffective assistance of counsel by failing to request instruction on the defense. (People v. Pope (1979) 23 Cal.3d 412, 425 [defendant must show counsel’s performance was deficient].)
The defenses of necessity and duress are different. (People v. Heath (1989) 207 Cal.App.3d 892, 901.) The duress defense, through its immediacy requirement, negates an element of the crime--the intent to commit the act; the defendant does not have time to form criminal intent. (Ibid.) “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. The defendant has the burden of proving necessity by a preponderance of the evidence.” (Ibid.) Necessity does not negate any element of the crime but represents a public policy decision not to punish a defendant despite proof of the crime. (Ibid.)
This court said in People v. Pepper, supra, 41 Cal.App.4th 1029: “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.]” (Id. at p. 1035 [trial court was not required to instruct sua sponte on necessity defense where there was insufficient evidence of necessity].)
Here, the evidence was insufficient to support an instruction on a necessity defense (sua sponte or upon request). Defendant had adequate alternatives. He could have sought protection from correctional authorities, disclosed the threat, or disclosed the weapon once he was separated from Perez. (Defendant testified it took a long time for the bowel movement because the weapon got stuck in his rectum, but still, he did not tell the guards he had it.)
Moreover, maintaining a dangerous weapon in the possession of a ranking gang member in prison creates, rather than alleviates, a dangerous situation. “A jail in which the prisoners could assert a court approved ‘right’ to possess deadly weapons for protection would be impossible to administer humanely and safely. The very existence of the weapons inevitably invites their use on other inmates and correctional officers. That is why our statutes prohibiting such possession by prisoners have always been construed to be absolute, and to permit no defense based on a claim of protection against future attack. [Citations.]” (People v. Velasquez (1984) 158 Cal.App.3d 418, 422 [necessity defense unavailable to inmate in possession of knife in jail].) The necessity defense “is inappropriate where it would encourage rather than deter violence. Violence justified in the name of preempting some future, necessarily speculative threat to life is the greater, not the lesser evil, particularly in the highly volatile environment of a prison institution.” (People v. McKinney (1986) 187 Cal.App.3d 583, 587 [necessity defense was unavailable to prisoner charged with assault].)
Additionally, defendant himself substantially contributed to the situation by being a gang member.
Defendant’s opening brief fails to address these points; it speaks only of his asserted fear and immediate threat (from Perez) versus future threat (from gang retribution), and then argues prejudice. Defendant’s reply brief agrees a dangerous situation is created by prisoners maintaining weapons, but he argues (irrelevantly) that he did not possess the weapon for very long. Defendant’s reply brief also asserts the alternative of seeking protection from the correctional authorities would have put him in a totally untenable position, making a bad situation worse. However, defendant cites no evidence supporting his argument. Indeed, the evidence suggests the opposite, because Perez testified he dropped out of the gang shortly after this incident, partly because he expected to be stabbed for losing the gang paperwork if he returned to the cellblock where his gang was incarcerated. It thus appears the correctional authorities could have separated defendant from a danger of gang retribution.
Defendant suggests the jury’s question during deliberations, about the meaning of “immediate duress” suggests some jurors may have believed defendant was an unwilling participant in concealing the weapon. However, we do not reach the issue of prejudice from instructional error, because no instructional error occurred.
We conclude the evidence of a necessity defense was insufficient as a matter of law, and therefore the trial court was not required to instruct on it sua sponte, and defense counsel did not render ineffective assistance of counsel by failing expressly to request such an instruction.
II. Section 1385 Motion
Defendant argues his sentencing under the three strikes law was a result of the trial court’s abuse of discretion in denying his section 1385 motion to strike one of his prior serious felony convictions--the 1999 series of armed robberies or the 2004 attempted murder of a fellow inmate in prison. We disagree.
Defendant asked the trial court to strike one of the prior conviction allegations in the interests of justice, because defendant had generally behaved well in prison, was “already disaffected with the gang ethos” before this incident, and quit the gang after this incident. In denying the motion, the trial court acknowledged defendant’s efforts at rehabilitation, but said they were relatively recent and untested. The court said, “for pretty much a good part of your life you’ve been a follower and not a leader. And you just said a few moments ago that circumstances pretty much dictated how your life would go. [¶]... [¶] But I needed a leader on January 12th, 2007, not waiting for the potty watch to bring it forward. The point being is that there was a point in time when you could have let the circumstances change, and that’s what I’m saying to you is you have let circumstances guide you. Now we’re here, and I don’t doubt, okay, that you have this reformation. The problem I’m having is, is this situational or is this sustained? And based on the time that has elapsed since that, it doesn’t reflect yet anything that would indicate to me that it has been sustained.”
The three strikes law restricts trial courts’ discretion in sentencing defendants, but trial courts may dismiss prior convictions alleged for three strikes sentencing, in furtherance of justice, under section 1385. (People v. Carmony (2004) 33 Cal.4th 367, 376; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In deciding such a motion, the trial court must consider “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) Striking a prior serious felony conviction is an extraordinary exercise of discretion and should be reserved for extraordinary circumstances. (People v. Philpot (2004) 122 Cal.App.4th 893, 907.) On review, we presume the trial court considered all relevant factors (in the absence of an affirmative record to the contrary), and we will not reverse unless defendant meets his burden to show the trial court abused its discretion. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Here, the probation report shows defendant was sent to prison in 1999 for a series of six armed robberies. In 2002, he was convicted of attempted murder when he participated with another inmate in a knife attack on an inmate victim. That criminal record, plus defendant’s continued gang membership at the time of the current offense indicate he remained a danger, and his possession of a weapon in prison in the current offense was not happenstance.
Defendant argues he was only 19 years old when he committed the six armed robberies. He argues the current offense was one of mere possession of a weapon belonging to someone else, and the current offense involved no violence. He says that, aside from the time he tried to murder someone in prison, his incarceration has been “relatively incident free.” Defendant wants us to assume he was forced to commit the attempted murder by pressure from “higher-ups” within his gang. He argues the sentence imposed by the court makes him ineligible for parole until he is 73 years old, whereas if one of his priors is stricken, he would be eligible for parole at age 56, which he views as sufficient punishment.
Defendant’s conviction for attempted murder precludes us from speculating that he was forced to commit that act. Even assuming for the sake of argument that the gang was a bad influence on defendant, none of the cited circumstances demonstrates abuse of discretion by the trial court.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J. RAYE, J.
We also note the abstract of judgment and probation report say defendant was born in 1980, but the handwritten notice of appeal he filed in propria persona said 1978. We leave it to the People to verify that the date in the abstract of judgment is correct and, if not, to seek correction.