People v. Scott

Full title: THE PEOPLE, Plaintiff and Respondent, v. CLARENCE LEE SCOTT, Defendant and…

Court: California Court of Appeals, Fifth District

Date published: Mar 29, 2011

No. F058798 (Cal. Ct. App. Mar. 29, 2011)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. CLARENCE LEE SCOTT, Defendant and Appellant. F058798 California Court of Appeal, Fifth District March 29, 2011

NOT TO BE PUBLISHED

Super. Ct. No. 08CM0305.

ORDER MODIFYING OPINION AND DENYING REHEARING

CORNELL, J.

THE COURT:

It is ordered that the opinion filed herein on March 3, 2011, be modified in the following particulars:

1. On page 5, the heading for part I. of DISCUSSION is deleted and replaced with the heading Challenges to the Homicide Convictions.

2. On page 7, the first full paragraph, beginning “Here, Scott” is modified to read in full as follows:

Here, Scott did not claim he was forced to engage in an illegal act in order to prevent a greater wrong. His contention at trial was that the massive injuries to D.G. were the results of his attempts at the Heimlich maneuver-an act that is perfectly legal-and that there was no intent to cause D.G. any harm. If Scott’s defense were believed by the jury, the element of malice necessary for murder is not present. (People v. Saille (1991) 54 Cal.3d 1103, 1113-1114.)

3. On page 7, the following paragraphs are inserted after the first full paragraph beginning “Here, Scott”:

Additionally, the amount of force and the traumatic injuries inflicted on D.G. preclude a necessity defense on the section 273ab conviction. A reasonable person would know that the force used on D.G. was likely to produce great bodily injury; the necessity defense requires that the acts be objectively reasonable and not create a danger greater than the one avoided. (Pepper, supra, 41 Cal.App.4th at p. 1035.) The multiple injuries and the force used to inflict those injuries demonstrate that Scott’s actions were not objectively reasonable.

Finally, Scott could have called 911 immediately-an alternative legal course of action-instead of delaying a request for action, which itself precludes a necessity defense for either the section 273ab offense or the section 187, subdivision (a) offense. Therefore, the instruction was not warranted. (See Pepper, supra, 41 Cal.App.4th at p. 1036.)

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

WE CONCUR: WISEMAN, Acting P.J., FRANSON, J.