Opinion
B323753
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. JAMARIO RAY, Defendant and Appellant.
Daniel Milchiker, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA118511 Laura L. Laesecke, Judge.
Daniel Milchiker, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
A jury convicted Jamario Ray of kidnapping. At his trial for that crime, evidence showed that Ray kidnapped the victim, his girlfriend, to prevent her from harming her mother. The defense therefore asked the trial court to instruct the jury on the defense of necessity. The trial court refused that request, finding there was no legal necessity for the kidnapping. On appeal, Ray contends that the trial court's refusal to instruct the jury on the necessity defense was prejudicial error. We agree and reverse the judgment.
BACKGROUND
I. Evidence at trial
In 2021, Jessica W. lived in an apartment with her four children, including the victim, 14-year-old Cynthia. According to Jessica, Cynthia was extremely violent, lacked impulse control, and had run away from home a lot. And, by the time of the 2022 trial in this matter, Cynthia was in custody for shooting two people in a separate incident.
On the morning of November 22, 2021, Jessica and Cynthia argued, although at trial Jessica could not recall why. While holding a knife, Cynthia threatened to stab and to kill Jessica, threats Jessica took seriously. Jessica was bleeding but couldn't say what caused the injury. At some point during the argument, Cynthia locked herself in a bathroom with the knife and called her boyfriend, Ray. Cynthia told Ray to" 'Come. Come.' "
Ray was about 10 years older than Cynthia.
Ray arrived at the apartment and told Cynthia to open the bathroom door, but she refused. Jessica described the scene as "all a big commotion," with Ray telling Jessica to leave and then to get out of the way as he broke down the bathroom door. After breaking down the door, Ray grabbed Cynthia (at one point by the hair), took the struggling Cynthia out of the apartment, and put her in his car.
Jessica called 911, followed Ray and Cynthia, and tried to physically remove Cynthia from the car by grabbing Cynthia's arm. However, Cynthia would not go with her mother and told Jessica to let her go. At trial, Jessica said she called 911 to report only Ray's actions. Jessica did not mention her argument with Cynthia to the 911 operator because it was a "whole different" thing. She was "not sure" if telling the police that Cynthia had tried to stab her would cause problems for Cynthia.
A neighbor's surveillance camera captured a portion of the incident, when Ray dragged Cynthia down the stairs and alongside the building. The jury watched the video.
II. Jury's verdict and sentence
An information alleged one count of kidnapping (Pen. Code, § 207, subd. (a)) against Ray. It also alleged he had a prior conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious or violent felony with the meaning of section 667.5, subdivision (c), and two aggravating circumstances under California Rules of Court, rule 4.421(a)(3) and (b)(4).
All further undesignated statutory references are to the Penal Code.
The trial court instructed the jury on use of force in defense of another (CALJIC No. 5.32). However, the trial court denied the defense's request to instruct on the defense of necessity.
The jury convicted Ray of kidnapping. On October 5, 2022, Ray admitted the prior conviction allegations and one aggravating factor. The trial court sentenced Ray to five years, doubled to 10 years in prison.
DISCUSSION
I. Failure to instruct on necessity defense
The trial court denied the defense's request to instruct the jury on necessity as a defense to kidnapping under the theory that Ray kidnapped Cynthia to prevent a greater harm to Jessica. The trial court reasoned that there was no danger of harm to Jessica because Cynthia had locked herself in the bathroom; hence, no legal necessity to kidnap Cynthia existed. We disagree with the trial court and conclude that there was sufficient evidence to warrant giving the necessity defense.
A. Sufficiency of the evidence to support the necessity defense
A trial court in a criminal case must instruct on general principles of law, including defenses, relevant to issues the evidence raises and necessary to the jury's understanding of the case. (People v. Brooks (2017) 3 Cal.5th 1, 73.) A trial court has a duty to instruct on a defense if substantial evidence supports it, and it is not inconsistent with the defendant's theory of the case. (People v. Powell (2018) 6 Cal.5th 139, 164.) "This requirement does not extend to any evidence, no matter how weak. To be 'substantial,' evidence must be sufficient to deserve the jury's consideration." (Ibid.) "In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.'" (People v. Salas (2006) 37 Cal.4th 967, 982.) We review de novo whether a trial court had a duty to give an instruction. (People v. Simon (2016) 1 Cal.5th 98, 133.)
The defense of necessity requires evidence sufficient to establish that the defendant "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 [the defendant] did not substantially contribute to the emergency." (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135; accord, People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100; CALCRIM No. 3403; CALJIC No. 4.43.) The defense recognizes that"' "the harm or evil sought to be avoided by [the defendant's] conduct is greater than that sought to be prevented by the law defining the offense charged." '" (Coffman and Marlow, at p. 100.)
Here, there was sufficient evidence of the six elements of the necessity defense. First, there was evidence Ray sought to prevent a significant and imminent harm or evil to at least Jessica. Cynthia had a history of extreme violence and lack of impulse control. The morning of the incident, Cynthia violently argued with Jessica and threatened to stab and kill her. Jessica took Cynthia's threats seriously, and, indeed, Jessica was injured and bleeding. The evidence therefore showed that Cynthia was a significant threat to Jessica's wellbeing. Nor did the locked bathroom door separating Cynthia from Jessica necessarily undermine the significant threat. Cynthia, armed with a knife, could have exited the bathroom at any moment. And although no party makes this argument, the evidence supports a reasonable inference of other potential harms. Cynthia could have harmed herself while in the locked bathroom. Further, at least one of Jessica's other young children was home, a four year old. While there is no evidence Cynthia threatened to harm a sibling, the presence of a sibling heightened the urgency and danger.
While Jessica was on the phone with the 911 operator, a boy called out, "Mom," and Jessica said, "Wait, Benjamin!"
However, the People argue that Jessica's failure to call 911 during her argument with Cynthia or while Cynthia was in the bathroom shows that Jessica was not in imminent danger. Jessica instead called 911 only after Ray removed Cynthia from the apartment, and she did so to stop Cynthia from leaving home, rather than to report Cynthia's threats against Jessica. But, a jury could reasonably infer that Jessica may have had other reasons for not calling 911. Jessica may not have wanted to report her daughter to law enforcement and risk Cynthia being arrested or harmed by responding officers. Or Jessica may have not believed calling police officers was the appropriate approach to dealing with an unstable and armed Cynthia.
Second, a jury could find that Ray had no reasonable legal alternative to forcibly removing Cynthia from the bathroom and apartment. The situation was volatile, involving an unstable 14 year old locked in a bathroom with a knife, with her mother and young siblings nearby in the apartment. Ray did ask Cynthia to come out of the bathroom, but she refused. Yes, Ray could have called 911. But a jury could believe that the situation was too fastmoving to wait for law enforcement to arrive, making it impractical for Ray to call 911 before removing Cynthia from the apartment. (See, e.g., People v. Miceli (2002) 104 Cal.App.4th 256, 267 [although "normal and appropriate response" to criminal emergency is to call police, failure to call 911 does not bar necessity defense if defendant can show, for example, history of futile complaints].) And, as we have said in analyzing Jessica's actions, Ray could have believed it was not reasonable to call police officers to deal with what may have been a mental health crisis. Thus, a jury could find that calling 911 was not a reasonable alternative.
Third, there was sufficient evidence Ray did not create a danger greater than the one avoided. To be sure, Ray's conduct was violent, as he dragged Cynthia from the apartment, at times by the hair. But even this conduct pales in comparison to the murder, assault with a deadly weapon, or self-harm that could have happened. And there was no evidence that Cynthia was significantly harmed during these events. The People suggest that Ray heightened the danger by removing the physical barrier, the door, between Jessica and Cynthia. But a jury could reasonably find otherwise, given that Cynthia controlled the door lock and could have opened the door to hurt Jessica at any time. Or she could have hurt herself at any time. To the extent Ray's actions could be interpreted as increasing the danger, this was a question of fact for the jury. (See People v. Salas, supra, 37 Cal.4th at p. 982 [issues going to weight of evidence and not its sufficiency are for jury].)
Fourth, there was sufficient evidence to raise a reasonable inference that Ray had a good faith belief that forcibly removing Cynthia from the apartment was necessary to prevent a greater harm. Although Ray did not testify, the evidence was that Cynthia called him and told him to come over, and when he arrived, Jessica was bleeding and Cynthia had locked herself in a bathroom with a knife. A person confronted with these circumstances could in good faith believe immediate action was necessary. Indeed, Jessica agreed that Ray acted to prevent Cynthia from attacking her.
Fifth, a jury could find Ray's belief objectively reasonable. A jury could infer that Ray, as Cynthia's boyfriend, knew about Cynthia's history of violent behavior. Upon arriving at the apartment, he found Jessica bloodied and Cynthia armed and locked in the bathroom with a knife. Objectively, these circumstances could cause a person to believe there was a risk of imminent danger from an armed and volatile teenager who had already attacked another. (See People v. Villanueva (2008) 169 Cal.App.4th 41, 52 [sufficient evidence of self-defense where defendant and victim had fought earlier and victim had threatened to kill defendant].)
Finally, a jury could find that Ray did not substantially contribute to the emergency. Instead, the situation was already volatile when Ray arrived: Jessica and Cynthia were arguing, Jessica was already injured, and Cynthia had locked herself in the bathroom with a knife. This situation therefore is not like that in People v. Verlinde (2002) 100 Cal.App.4th 1146, disapproved on another ground by People v. Cook (2015) 60 Cal.4th 922, 939, which the People cite for the proposition that Ray contributed to the emergency by removing Cynthia from the supposed relative safety of the bathroom. In Verlinde, at page 1165, the intoxicated defendant got into a car with other intoxicated people and then shared driving duties with one of them, even though everyone was too drunk to drive. The Verlinde defendant thus created the emergency. Here, however, Ray was asked to and did respond to an existing emergency.
We therefore conclude that there was sufficient evidence of all elements of the necessity defense. Accordingly, the trial court erred in not instructing the jury on that defense.
B. Prejudice
The People respond that any error in failing to instruct on the necessity defense was not prejudicial. We disagree.
Our California Supreme Court has not yet determined "whether a trial court's failure to instruct on a requested affirmative defense instruction supported by substantial evidence is federal constitutional error or state law error." (People v. Gonzalez (2018) 5 Cal.5th 186, 199.) We need not resolve the question here, because the error was prejudicial under either standard. Under the state standard of People v. Watson (1956) 46 Cal.2d 818, 836 to 837, it is reasonably probable that a result more favorable to Ray would have been reached in the absence of the error. A probability"' "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." '" (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.) Also, under the federal Chapman v. California (1967) 386 U.S. 18, 24 standard, the People cannot establish the error was harmless beyond a reasonable doubt.
Ray's jury directly asked about the defense of necessity, albeit without calling it that. During deliberations, the jury asked, "Do[ ] circumstances around a kidnapping or apparent kidnapping matter? Is it still kidnapping if it was done to prevent a wor[se] situation?" The trial court answered that the jury had to use the facts presented at trial to decide whether the People had proven beyond a reasonable doubt that defendant committed a kidnapping. However, the jury was clearly considering whether Ray reasonably chose the lesser of two evils, kidnapping Cynthia over physical harm to Jessica. Stated otherwise, the jury was considering whether it was necessary for Ray to remove Cynthia from the apartment.
The People assert that any error in failing to instruct on the necessity defense was nevertheless harmless because the jury rejected that Ray used force in defense of another. The trial court instructed the jury with CALJIC No. 5.32, which provided that it is lawful for "a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon another person, to protect that individual from attack. [¶] In doing so, [the person] may use all force and means which that person believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent." The People point out that in finding Ray guilty of kidnapping, the jury must have rejected this defense. Even so, this does not conclusively demonstrate the absence of prejudice. The jury could have rejected this defense because the jury did not believe Ray used force and means "reasonably necessary" to prevent the injury. (CALJIC No. 5.32, italics added; People v. Minifie (1996) 13 Cal.4th 1055, 1065 [selfdefense is limited to force reasonable under the circumstances].) The jury could have thought Ray did not have to break down the bathroom door. Or it could have found grabbing Cynthia by the hair unreasonable. The jury also could have thought that Cynthia was at risk of self-harm. Such beliefs, however, would not have necessarily defeated the defense of necessity.
The People further suggest that failing to give the necessity instruction was harmless because necessity was not the defense theory of the case in closing. The suggestion is meritless. The trial court had refused to instruct on the necessity defense, thereby limiting the defense in what it could argue in closing. Defense counsel therefore instead argued in closing that this was not a kidnapping but something more akin to a fight or domestic violence. This closing argument does not negate the error's prejudicial nature.
In conclusion, the trial court erred by not instructing the jury on necessity, and the error was prejudicial. Because we are therefore reversing the judgment and remanding for a potential retrial, we need not address Ray's remaining arguments that the trial court erred by refusing to instruct the jury with CALJIC No. 9.58 regarding a defendant's reasonable belief in consent as a defense to kidnapping and that the trial court should have instructed the jury on defense of others with CALCRIM No. 3470 instead of CALJIC No. 5.32.
DISPOSITION
The judgment is reversed and the matter is remanded for proceedings consistent with this opinion.
We concur: ADAMS, J. BERSHON, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.