People v. Lovercamp

Decision Date11 December 1974
Docket NumberCr. 6280
Citation43 Cal.App.3d 823,69 A.L.R.3d 668,118 Cal.Rptr. 110
Parties, 69 A.L.R.3d 668 PEOPLE of the State of California, Plaintiff and Respondent, v. Marsha LOVERCAMP, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals
OPINION

GARDNER, Presiding Justice.

Defendant and her codefendant, Ms. Wynashe, were convicted by a jury of escape from the California Rehabilitation Center (Welfare & Inst.Code, § 3002).

Defendant and Ms. Wynashe were inmates of the California Rehabilitation Center. They departed from that institution and were promptly captured in a hayfield a few yards away. At trial, they made the following offer of proof:

They had been in the institution about 2 1/2 months and during that time they had been threatened continuously by a group of lesbian inmates who told them they were to perform lesbian acts--the exact expression was 'fuck or fight.' They complained to the authorities several times but nothing was done about their complaints. On the day of the escape, ten or fifteen of these lesbian inmates approached them and again offered them the alternative--'fuck or fight.' This time there was a fight, the results of which were not outlined in the offer of proof. After the fight, Ms. Wynashe and defendant were told by this group of lesbians that they 'would see the group again.' At this point, both defendant and Ms. Wynashe feared for their lives. Ms. Wynashe was additionally motivated by a protective attitude toward defendant Lovercamp who had the intelligence of a twelve year old. It was represented that a psychiatrist would testify as to defendant's mental capacity. On the basis of what had occurred, the threats made, the fact that officials had not done anything for their protection, Ms. Wynashe and defendant felt they had no choice but to leave the institution in order to save themselves.

As indicated, they did leave and were promptely captured.

Citing People v. Richards (1969), 269 Cal.App.2d 768, 75 Cal.Rptr. 597, and People v. Whipple (1929), 100 Cal.App. 261, 279 P. 1008, the court rejected the offer of proof. The defendants then offered no evidence. The case was submitted to the jury and to the surprise of no one the jury found both defendants guilty.

While defendant makes several contentions on appeal, one is dispositive--the offer of proof. Other issues presented may or may not recur on retrial.

Some preliminary observations are in order.

When our culture abandoned such unpleasantries as torture, dismemberment, maiming and flogging as punishment for anti-social behavior and substituted in their place loss of liberty, certain problems immediately presented themselves. As a 'civilized' people, we demanded that incarceration be under reasonably safe and humane conditions. On the other hand, we recognized that the institutional authorities must be afforded a certain firmness of program by which the malefactors be kept where sentenced for the allotted period of time. Realizing that a certain percentage of penal inmates are going to be uncooperative, disruptive and, in some cases, downright dangerous, we invested our institutional officials with disciplinary powers over inmates far above any such powers granted to governmental authorities outside prison walls. It is hardly earth shattering to observe that prisons are not Brownie Camps and that within the inmate population are those who, if given the opportunity, will depart without due process of law. Therefore, as an aid to prison authorities and to discourage self-help release from incarceration, the offense of escape was born. Simply stated, if an inmate intentionally leaves lawful custody, he commits a new crime.

However, rather early in the legal history of the offense of escape, it became clear that all departures from lawful custody were not necessarily escapes or, to put it more accurately, there was a possible defense to an escape charge, to wit, necessity. In 1 Hale P.C. 611 (1736), it was written that if a prison caught fire and a prisoner departed to save his life, the necessity to save his life 'excuseth the felony.' So, too, we may assume that a prisoner with his back to the wall, facing a gang of fellow-inmates approaching him with drawn knives, who are making it very clear that they intended to kill him, might be expected to go over the wall rather than remain and be a martyr to the principle of prison discipline.

However, the doctrine of necessity to 'excuseth the felony' carried with it the seeds of mischief. It takes little imagination to conjure stories which could be used to indicate that to the subjective belief of the prisoner conditions in prison are such that escape becomes a necessity. Inevitably, severe limitations were affixed to this defense and the general rule evolved that intolerable living conditions in prison afforded no justification for escape. A reading of the cases invoking this rule presents a harsh commentary on prison life in these United States of America, revealing (with proper consideration of the sources of the complaints), prison life which is harsh, brutal, filthy, unwholesome and inhumane. A fair sampling of the authorities indicate that the defense has been rejected in cases involving unsanitary conditions in jail--'a filthy, unwholesome and loathsome place, full of vermin and uncleanliness,' (State v. Davis, 14 Nev. 439, 33 Am.Rep. 563); fear of being shot (Hinkle v. Commonwealth (Ky.), 23 Ky.L.Rpt. 1988, 66 S.W. 816); unmerited punishment at the hands of the custodian (Johnson v. State, 122 Ga. 172, 50 S.E. 65); or escape from solitary confinement when the cell was infested with bugs, worms and vermin and when the toilet was flushed the contents ran out on the floor (State v. Cahill, 196 Iowa 486, 194 N.W. 191); extremely bad food, guard brutality, inadequate medical treatment and inadequate recreational and educational programs (State v. Palmer, 45 Del. 308, 72 A.2d 442). Under the above general rule, none of these situations excused the felony.

Traditionally, the courts have balanced the interests of society against the immediate problems of the escaping defendant. This has tended to focus attention away from the immediate choices available to the defendant and the propriety of his cause of action. Thus, reprehensible conditions have been found to be insufficient to justify the escape, the public interest outweighing the defendant's interest.

In a humane society some attention must be given to the individual dilemma. In doing so the court must use extreme caution lest the overriding interest of the public be overlooked. The question that must be resolved involves looking to all the choices available to the defendant and then determining whether the act of escape was the only viable and reasonable choice available. By doing so, both the public's interest and the individual's interest may adequately be protected. In our ultimate conclusion it will be seen that we have adopted a position which gives reasonable consideration to both interests. While we conclude that under certain circumstances a defense of necessity may be proven by the defendant, at the same time we place rigid limitations on the viability of the defense in order to insure that the rights and interests of society will not be impinged upon. We have not formulated a new rule of law but rather have applied rules long ago established in a manner which effects fundamental justice.

In California, the two leading authorities are People v. Richards, Supra, 269 Cal.App.2d 768, 75 Cal.Rptr. 597, and People v. Whipple, Supra, 100 Cal.App. 261, 279 P. 1008.

Mr. Whipple escaped because he was the victim of 'brutal treatment of extreme atrocity.' The opinion was written at a time (1929) when writers, legal or otherwise, with a fine feeling for the delicacy of their readers left much to the imagination. Therefore, we are left to speculate as to the specific nature of the 'brutal treatment of extreme atrocity' to which Mr. Whipple had been subjected. However, whatever treatment Mr. Whipple had received, it had occurred in a remote mountain camp where a complaint was useless. 1 He departed. His sole defense was that the conditions existing at the camp together with his brutal and inhumane treatment made his imprisonment intolerable and therefore justified the escape. The trial court instructed the jury that an escape founded on any alleged unsanitary condition or alleged harsh, brutal or inhumane treatment received by him at the hands of his custodian would constitute no defense to the charge.

On appeal, the court recognized that, generally speaking, 'absolute necessity' would excuse the commission of a crime but insofar as an escape from jail was concerned, the authorities were in 'practical accord' in holding that ordinary adverse circumstances did not afford such a defense. The court concluded that even if the conditions of imprisonment were so unwholesome as to seriously imperil the health and life of the prisoner or that prison guards might subject him to unjustifiable abuse or even serious physical injury, he escapes for those reasons 'at his peril.' Therefore, it was 'with very great reluctance' that the judgment of conviction was affirmed.

Turning to the more specific problem of escape based on an alleged threat of forcible sexual attack, the reported cases reflect an attitude of the courts which might charitably be characterized as viewing it with alarm but with results varying from benign neglect to dynamic inertia.

In Richards, supra, 269 Cal.App.2d 768, 75 Cal.Rptr. 597, an offer of proof was made that acts of sodomy had been inflicted on the defendant, that he complained but the guards...

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