Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Nos. RIF116400 & RIF113963, Richard Todd Fields, Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
A jury found appellant and defendant Daniel Joe Patillo guilty of offering to bribe a juror. (Pen. Code, § 92.) Defendant admitted that he had served seven prior prison terms (§ 667.5, subd. (b)) and had one prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced him to a total term of four years in state prison. Subsequently, defendant was convicted of one count of grand theft and several counts of receiving stolen property in a different case (Riverside Superior Court case No. RIF113963). After imposing the sentence in case No. RIF113963, the court vacated defendant’s sentence in the instant case and resentenced him to a two-year term, to run consecutive to the other sentence.
All further statutory references will be to the Penal Code, unless otherwise noted.
Defendant filed a notice of appeal in case No. RIF113963, as well as in case No. RIF116400. We note that his opening brief only addresses his conviction in case No. RIF 116400.
On appeal, defendant contends that his conviction should be reversed because the trial court failed to sua sponte instruct the jury on the defenses of duress and necessity. We affirm.
FACTUAL BACKGROUND
Defendant once worked for Sharon Choquette, and they communicated regularly while he was in prison awaiting trial in case No. RIF113963. In March 2004, Choquette was empanelled on a jury in a murder trial. At some point when she was talking on the phone to defendant, she told him that she was serving on a jury for a trial with a “scary looking” defendant who had a lot of tattoos.
Defendant asked a fellow prisoner, Stomper Vegara, if a jury had been picked for his upcoming trial. Defendant asked him because he thought that maybe Choquette had been picked for Vegara’s jury. Vegara said no and asked defendant why he asked that question. Defendant told Vegara that his boss had been picked for a jury. About one week later, Vegara approached defendant and told him that Choquette was on the jury for the trial of a “Big Homey,” a member of the Mexican Mafia. Vegara told defendant that he “needed to get at [his] boss” and tell her she needed to vote not guilty. Since defendant had been in prison for a total of nearly 16 years, he knew “the rules” in prison. He understood Vegara’s comments to mean that he had to give Choquette the message or he would be “put in the hat,” which meant that the Mexican Mafia was going to hurt him or try to kill him. Defendant testified at trial that he was also worried that they would hurt his family because “if they can’t get at you, then they can get loved ones.”
Subsequently, defendant made a phone call to Choquette to pass on the message. He called her from the prison dayroom. There were a few people in the dayroom at the time he made the call. Vegara was standing to the left of him, and he deliberately told Vegara when he was going to make the call. Vegara stood about two feet away from defendant when he called, and he listened to the conversation. Defendant called Choquette and asked her if she was still in trial. He told her that he knew that the defendant in her trial was “[o]ne of them mafia guys,” but that the defendant was “all right, though.” Defendant asked her what the jury was going to do, and Choquette said she did not know. He told her to remember one thing—that “with a hung jury or a not guilty . . . [she would] have a big promise to [her], whatever [she] want[ed].” Defendant then laughed and said, “Yep . . . [¶] . . . [¶] . . . you got big favors coming if you take care of that.” Choquette said, “Oh yeah?” Defendant added, “And with them guys I can tell that’s a pretty good deal.” He then laughed again. Defendant reminded Choquette that she “[knew] what to do,” and that even if everybody else voted guilty, if she voted not guilty, the defendant could not be convicted. Defendant then told her, “And he said just let him know what kind of favors you need.” At trial, the jury heard a tape of the phone conversation between defendant and Choquette. One of the defense attorneys noted that defendant seemed lighthearted and happy during his conversation. Defendant replied that he was trying to make light of the situation the best he could.
Choquette told the judge presiding over the trial about her conversation with defendant. She was very upset and did not want to continue with her jury service. She was afraid of what would happen to her if she voted guilty.
ANALYSIS
The Court Had No Sua Sponte Duty to Instruct the Jury on the Defenses of Duress and Necessity
Defendant argues that the trial court failed to sua sponte instruct the jury with CALJIC No. 4.40 (duress) and CALJIC No. 4.43 (necessity). We find no error.
CALJIC No. 4.40 provides: “A person is not guilty of a crime [other than] when [he] [she] engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances: [¶] 1. Where the threats and menaces are such that they would cause a reasonable person to fear that [his] [her] life would be in immediate danger if [he] [she] did not engage in the conduct charged, and [¶] 2. If this person then actually believed that [his] [her] life was so endangered. [¶] This rule does not apply to threats, menaces, and fear of future danger to [his] [her] life[,] [nor does it apply to the crime[s] of (crime punishable by death) ].” (See People v. Hinton (2006) 37 Cal.4th 839, 882.)
A trial court’s duty to instruct, sua sponte, or on its own initiative, on a particular defense is limited, “arising ‘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.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 195.) In other words, “a trial court has no obligation to instruct sua sponte on a defense supported by ‘minimal and insubstantial’ evidence [citation] . . . .” (People v. Barnett (1998) 17 Cal.4th 1044, 1152.)
A. There Was Insufficient Evidence to Support the Defense of Duress
In order to mount a successful defense based on duress, a defendant must establish that “the act was done under such threats or menaces that he had (1) an actual belief his life was threatened and (2) reasonable cause for such belief. [Citation.]” (People v. Heath (1989) 207 Cal.App.3d 892, 900 (Heath).) “Duress is an effective defense only when the actor responds to an immediate and imminent danger. ‘[A] fear of future harm to one’s life does not relieve one of responsibility for the crimes he commits.’ [Citations.] The person being threatened has no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent.” (Ibid.)
Here, there was no evidence to show that defendant acted under duress. Defendant testified that when Vegara told him to tell Choquette to vote not guilty, Vegara just said that the case involved a Big Homey, that defendant had to “get at [his] boss,” that Choquette needed to vote not guilty, and that “they would make it right with her.” Vegara did not threaten defendant. When the prosecutor said, “[Vegara] didn’t tell you you [had] better do this or we are going to put a hit out on you; correct?” Defendant said, “There was no need for that.” When the prosecutor repeated the question, defendant admitted, “No, he did not say that I would get hit on.” When the prosecutor asked if Vegara made any verbal threats to him at all during that conversation, defendant said no. Defendant testified that Vegara did not actually tell him that he had to pass the message on to Choquette or else he would be put in the hat. In addition, although defendant said that Vegara was standing a few feet away from him when he made the phone call to Choquette, defendant admitted that Vegara was not holding a gun to his head or a knife to his throat. Vegara just listened to the conversation. When defendant was asked if it was his understanding that if he did not make the call while Vegara was standing there, that Vegara “was going to stab [him] right then and there,” defendant replied: “No. Not at all. It didn’t necessarily mean that he would even do it at all, but that with him standing there, I was covering myself to where I did everything I could.” Defendant’s own testimony makes it clear that he did not make the phone call to Choquette in response to “an immediate and imminent danger.” (Heath, supra, 207 Cal.App.3d at p. 900.)
Detective Steve Shumway testified that when he interviewed defendant about the whole incident, defendant simply told him that he was passing a message on, and that “these were guys you didn’t want to cross.” Defendant did not tell Detective Shumway that he was forced to make the phone call to Choquette, or that he would suffer harm if he did not make the call.
At most, the evidence showed that defendant had a speculative fear that the Mexican Mafia would try to hurt or kill him, or that they would hurt his family. This fear was not based on any actual threat, but on what defendant called “experience” from seeing people in prison stabbed or killed by the Mexican Mafia. In any case, any fear was of future harm, which renders the duress defense inapplicable. (Heath, supra, 207 Cal.App.3d at p. 900.) Therefore, the trial court had no sua sponte duty to instruct the jury on the defense of duress.
B. There Was Insufficient Evidence to Support the Defense of Necessity
“To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that []he 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, 1135 (Kearns).) The necessity defense, in contrast to the duress defense, “contemplates a threat in the immediate future. [Citation.] The defendant has the time, however limited, to consider alternative courses of conduct.” (Heath, supra, 207 Cal.App.3d at p. 901.)
Here, the evidence did not establish all the elements of necessity. Most notably, the evidence did not establish the absence of a reasonable legal alternative to committing the crime. Clearly, at least one such alternative existed: defendant could have told the prison guard or some other authority what Vegara told him to do, rather than carry out the bribe. Defendant apparently had the time to consider alternative courses of conduct, as he admitted at trial that he felt like he had a choice. Defendant testified that he chose to do what he was asked to do. He further said that he did not tell a guard because it would have put his life in even more jeopardy than it was already in. However, if defendant had told the guard, and his life really was in danger, he could have been put in protective custody. Although defendant said that he then would have been labeled a “snitch” and a hit would have been put out on him, there was no actual evidence that he would have been harmed.
We further note that defendant never explained why he was not worried about being labeled a snitch, or being placed in the same danger, for testifying about or against Vegara in the instant case. When asked if he was worried that he was going to have a problem with the Mexican Mafia for testifying at trial, he simply replied, “It could happen. I mean, I am more worried about my family than myself.” Then, when asked how he could protect his family, he said he really could not protect them. Such testimony weighs against the necessity defense requirement that defendant “violated the law . . . to prevent a significant and imminent evil . . . .” (Kearns, supra, 55 Cal.App.4th at p. 1135.) There was no evidence that defendant would have suffered “imminent evil” if he did not bribe Choquette, aside from his own self-serving testimony. Moreover, defendant’s apparent lack of fear of retaliation from the Mexican Mafia for testifying in the instant case casts doubt that he had a good faith belief that offering the bribe was necessary to prevent harm to himself or his family.
We conclude that the trial court had no sua sponte duty to instruct on the defense of necessity since the evidence did not support such a defense.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J, MILLER J.