People v. Patrick

• Decision Date: 18 December 1981
• Docket Number: Cr. 11954
• Citation: 126 Cal.App.3d 952,179 Cal.Rptr. 276
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Theodore PATRICK, Defendant and Appellant.

Page 276

179 Cal.Rptr. 276

126 Cal.App.3d 952

The PEOPLE, Plaintiff and Respondent, v. Theodore PATRICK, Defendant and Appellant.

Cr. 11954.

Court of Appeal, Fourth District, Division 1, California.

Dec. 18, 1981.

Hearing Denied March 11, 1982.

Quin A. Denvir, State Public Defender, and Charles M. Sevilla, Chief Deputy Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Bernard A. Delaney, Jr. and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Acting Presiding Justice.

Defendant Theodore Patrick appeals from a judgment of conviction on counts of kidnaping (Pen.Code, § 207), false imprisonment (Pen.Code, §§ 236 and 237), and conspiracy to commit both acts (Pen.Code, § 182). The facts of the case involve the emotionally-charged issue of deprogramming suspected "cult" members, a field in which Patrick has become nationally if not internationally reknown during the last decade. With perhaps one exception, however, the legal issues presented here do not evoke the same intensity of emotional response as does Patrick's vocation in the eyes of his proponents and detractors. Reviewing those issues in an objective fashion, we have concluded that while the convictions for false imprisonment and conspiracy to falsely imprison should be stricken, the judgment, insofar as it relates to kidnaping and conspiracy to kidnap, must be affirmed.

Factual and Procedural Background

In 1973, a Maryland family named McElfish concluded their 19-year-old daughter Roberta had become a member of a dangerous religious cult referred to as the Thomas Family. ¹ The concerned relatives included Roberta's father Bobby, her mother Rosemary, and two sisters, Mary Cecilia and Marye Rita. An investigation of the Thomas Family and its living conditions did nothing to allay the McElfishes' fears. As a result, they attempted an unsuccessful abduction of Roberta in 1975. ² Following that attempt, the Thomas Family disappeared from Maryland. During the next four years, the McElfishes sought to locate Roberta and contacted numerous government and law enforcement agencies to ascertain what could be done about their daughter's involvement in a religious cult. They consistently received a negative response.

In 1979, the McElfishes located Roberta and her young son Shad in Tucson, Arizona. During a visit by Bobby and Marye Rita in June, Roberta convinced them she was not a member of a cult. The McElfishes returned to Maryland, but later concluded they had been deceived. They then began planning to abduct Roberta in order to deprogram her.

In October, Mary Cecilia telephoned Ted Patrick's secretary, Sondra Sacks, in San Diego and related their story regarding Roberta. She indicated the McElfish family wanted to hire Patrick to deprogram Roberta. Sacks informed Mary Cecilia she would pass the request on to Patrick who would contact the McElfishes at a later date.

During the next several months, Mary Cecilia had several conversations with both Patrick and Sacks which culminated in a generalized agreement that Patrick would deprogram Roberta for a fee of $7500. The plan called for the McElfish family to abduct Roberta and bring her to the home of a relative in Charleston, South Carolina. Patrick was to meet the family there to begin the deprogramming.

On March 25, 1980, the McElfish family arrived in Tucson. Mary Cecilia phoned Patrick to announce the family's arrival. She explained that everyone was tired from the trip and inquired whether a site closer than South Carolina could be arranged for the deprogramming. Patrick responded that he would arrange for a new location after his fee had been received.

A cashier's check for $7500 was obtained and mailed to Patrick on March 26. On March 27, Mary Cecilia again spoke with Patrick. He first inquired whether they needed "help" in the abduction attempt. ³ Mary Cecilia declined the offer. Patrick indicated the best way to complete a successful kidnaping was to come from behind, making sure the victim's hands were down at her sides. He also instructed that the abduction should be completed within 10 seconds in order to avoid attention. Patrick then stated he had arranged for a deprogramming site in Mt. Vernon, Washington. He instructed the McElfish family to drive to Seattle and then take Interstate 5 north to Mt. Vernon. A phone call was to be placed with the caller using the code words "Black Lightning." ⁴ Instructions would then be provided as to where to take Roberta for the deprogramming.

The McElfish family arranged to meet Roberta and Shad for dinner on March 27. Following dinner as they were leaving the restaurant, Roberta was grabbed from behind by her father and John Zombro, Marye Rita's fiance who had accompanied the family from Maryland. She was forced into the back of a waiting station wagon with her hands and feet taped and driven to a Ramada Inn in Phoenix by Zombro and Bobby McElfish. The female family (Rosemary, Mary Cecilia and Marye Rita) members remained in Tucson in an attempt to obtain custody of Shad.

It is at this point the story begins to get complicated. The scuffle at the restaurant apparently attracted some attention and Tucson police were called. They detained and questioned the three females. Shad was placed with a child protection service while the situation was being straightened out. Phoenix police were also notified and arrived at the Ramada Inn shortly after John Zombro, Bobby McElfish and Roberta. Emotionally distraught, Bobby McElfish agreed to return his daughter to her home in Tucson. Roberta told the Phoenix police she did not wish to press charges. The three were then released and they drove back to Tucson that night.

Upon arriving in Tucson, Zombro ignored Roberta's requests and drove to a motel where Mary Cecilia was waiting. She got into the car, telling them "Black Lightning. On to destination." They then proceeded on to California. Mary Cecilia told Roberta they were taking her to be cured by a man named Patrick.

Roberta and her abductors arrived in El Centro, California, during the early morning hours of March 28. They stopped at a restaurant to get something to eat. Mary Cecilia called Patrick from the restaurant. She told him where they were, related their experiences in Tucson, and asked if there was somewhere in San Diego where they could rest. Patrick gave them the address of a Ramada Inn in Chula Vista and instructed them to wait there for him to get in touch with them.

As the group was leaving the restaurant, Roberta grabbed onto two construction workers who were entering. She told them she was being kidnaped and asked their help. Although the family tried to convince the men Roberta was a member of a cult and was under the influence of some drug, they insisted on calling the police. When the police arrived, Zombro and the McElfishes were arrested and Roberta was released.

Marye Rita and Rosemary McElfish had remained in Tucson while the rest of the family drove Roberta toward El Centro. After learning of the arrests, Marye Rita and Rosemary also went to El Centro. Marye Rita arranged for the services of Robert Clark, a private investigator from Beverly Hills, to aid the family and help in recovering the $7500 paid to Patrick.

Clark arrived in El Centro on Sunday night, March 29, and contacted the McElfishes in their hotel room. Patrick arrived shortly thereafter. He told the family not to give up hope; that there were attorneys available who could help them. Clark testified that Patrick also reoffered his "snatch men" for $1200 (see fn. 3 ante), but both Mary Cecilia and Marye Rita denied Patrick made such a statement. Patrick then returned the $7500 cashier's check and left.

Based on the foregoing events, charges were filed against both Patrick and his secretary Sondra Sacks. The charges against Sacks were dismissed after the trial court granted a Penal Code section 995 motion. As a result of an agreement reached with the San Diego County District Attorney, charges against the McElfishes were postponed pursuant to a diversion program in exchange for their testimony in the instant action. (See Pen.Code, § 1001 et seq.)

Availability of the "Necessity" Defense

Patrick's principal contention on appeal relates to the trial court's decision not to instruct the jury on the "necessity" defense whereby a defendant's violation of the law in an emergency context may be excused if such illegal act is committed to avoid a greater harm. The trial court concluded that while such a defense may be applicable in some circumstances, Patrick's offer of proof failed to demonstrate a sufficient emergency to justify the McElfishes, and Patrick as their agent, in committing a kidnaping.

We may assume arguendo the necessity defense exists as a part of California criminal law. (See generally, Model Pen.Code (Proposed Official Draft 1969) § 3.02; 1 Witkin, Cal.Crimes (1963) Defenses, § 248; People v. Lovercamp (1974) 43 Cal.App.3d 823, 118 Cal.Rptr. 110.) Nonetheless we conclude the trial court did not err in finding Patrick's offer of proof deficient. ⁵ We base that conclusion on three separate factors.

First, although the exact confines of the necessity defense remain clouded, a well-established central element involves the emergency nature of the situation, i.e., the imminence of the greater harm which the illegal act seeks to prevent. ⁶ (See State v. Johnson (1971) 289 Minn. 196, 183 N.W.2d 541, 543.) The commission of a crime cannot be countenanced where there exists the possibility of some alternate means to allieviate the threatened greater harm. (See LaFave and Scott, Criminal Law (1972) p. 387.) Here, virtually all of the McElfishes' information about the alleged cult was obtained four or five years before the kidnaping. The most recent contact by two of the family members with Roberta convinced them she was no...