People v. Pena

• Decision Date: 16 September 1983
• Docket Number: No. 20250,20250
• Citation: 197 Cal.Rptr. 264,149 Cal.App.3d Supp. 14
• Court: California Superior Court
• Parties: 149 Cal.App.3d Supp. 14 The PEOPLE, Plaintiff and Respondent, v. Russell David PENA, Defendant and Appellant. Crim. A. Appellate Department, Superior Court, Los Angeles County, California

Page 264

197 Cal.Rptr. 264

149 Cal.App.3d Supp. 14

The PEOPLE, Plaintiff and Respondent, v. Russell David PENA, Defendant and Appellant.

Crim. A. No. 20250.

Appellate Department, Superior Court, Los Angeles County, California.

Sept. 16, 1983.

Richard L. Dewberry, Whittier, for defendant and appellant.

Robert H. Philibosian, Dist. Atty., Donald J. Kaplan and Sterling S. Suga, Deputy Dist. Attys., for plaintiff and respondent.

[149 Cal.App.3d Supp. 17] BERNSTEIN, Judge.

Appellant, Russel David Pena, appeals his conviction for violation of former Vehicle Code section 23102, subdivision (a) ¹, driving under the influence of intoxicating liquor. Appellant contends the trial court erred in refusing his proffered jury instruction, regarding appellant's theory of his defense. That theory was predicated on the presumed availability of what is generally termed the defense of duress. ² We hold that the defense was indeed available to appellant, and that the evidence adduced at trial mandated a jury instruction on the subject. Accordingly, we reverse the judgment of conviction.

FACTS

On November 5, 1981, appellant was charged by complaint with violations of former Vehicle Code sections 23102, subdivision (a) ³ (count I) and 12500, subdivision Appellant's second jury trial commenced on October 5, 1982. The difficulties experienced by the second jury are reflected in the municipal court docket: ⁶

(a) ⁴ (failure to have driver's license, count II) and Health [149 Cal.App.3d Supp. 18] and Safety Code section 11357, subdivision (b) ⁵ (possession of less than one ounce of marijuana, count III). Counts II and III were subsequently dismissed on motion of the People pursuant to Penal Code section 1385. Appellant was tried by jury on count I; a mistrial was declared on May 25, 1982, when the jury reported itself to be hopelessly deadlocked. The engrossed settled statement on appeal states that: "[d]uring deliberations (following appellant's first trial), the jurors requested instruction on the issue of the defense of justification, ..." and were instructed by the court that it was not available as a defense to the charge.

On October 29, 1982, the court sentenced appellant to one year in the county jail. ⁷

The evidence presented at appellant's trial was essentially undisputed. Los Angeles County Sheriff's Deputy Frank Webb testified that he first encountered appellant at approximately 4 a.m. on November 1, 1981. Webb, on patrol in Pico Rivera, observed appellant and Sara Marrufo, appellant's girlfriend, asleep in a parked car. ⁸ Webb stated that "due to the late hour," he decided to investigate the situation. He exited his patrol vehicle and approached During his interrogation and search of appellant and Sara Marrufo, Deputy Webb ascertained the following:

                the parked car, at which time he stated that he smelled alcohol.  Webb then ordered the occupants, appellant and Sara, to exit their vehicle and demanded to see written identification.  Both parties complied.  Following this, Webb undertook a search of the "suspects" assertedly to ascertain if either of them were in possession of "weapons."   Sara, at the time she was subjected to Deputy Webb's "weapons search," was dressed in a somewhat unusual manner.  She was wearing a long fur coat and, according to the engrossed statement, "was semi-nude thereunder, wearing only a very brief see-through teddy nightgown" (Sara testified that she and appellant had attended a Halloween costume party earlier in the evening, and that her costume was supposed to be that of a "flasher").  Webb ordered Sara to open her coat, which she did very briefly.  Webb thereupon ordered her to again open her coat and to keep it open.  Deputy Webb then examined Sara's body with his flashlight.  Following this examination, the deputy turned Sara around and pulled her coat up from the rear and continued his examination with the flashlight
                

1. The vehicle in which appellant and his girlfriend had been sleeping was registered to Sara's sister;

2. Appellant lived "about one block" from the location of the events above described;

3. Sara lived about three miles from the location;

4. Sara's identification showed her to be 20 years of age.

Deputy Webb concluded the encounter by ordering Sara to enter his vehicle inasmuch as the deputy had decided to take Sara home. Webb's only asserted reason for this action was that it was for Sara's "protection." ⁹ Webb drove from the scene with Sara in tow, leaving appellant in possession of Sara's sister's vehicle.

Appellant testified that he followed Webb and Sara in the sister's car. His reason for doing so was his fear for the physical safety of his girlfriend. Appellant had observed Webb's earlier weapons search of Sara; it is at this point the only conflict in the evidence develops. Deputy Webb testified that he drove Sara directly home and only after this, while "exiting Sara Marrufo's doorway," did he observe "an unusual black shadow" which proved to be appellant. Appellant was sitting in the vehicle earlier described, with the motor running. Recalling the alcohol odor at the scene of his original encounter with appellant and Sara, Webb felt that appellant had driven to his current location while under the influence of alcohol. He ordered appellant out of the vehicle and, according to Webb, thereupon administered field sobriety tests which appellant failed. Webb then arrested appellant. Subsequently, appellant took an "intoxilyzer" (breath) test which showed appellant's blood alcohol level to be approximately .15.

However, according to Sara, Webb stopped his car "by some railroad tracks"; at that point, Webb observed appellant to be following them. Webb stated to Sara that appellant "would be made sorry" for following them. Webb then started his vehicle up again and drove to Sara's residence.

Appellant testified concerning his arrest by Webb as follows: After he was ordered out of the car in which he had followed Webb and Sara, appellant was immediately arrested and handcuffed by Webb. Appellant asserted that no field sobriety tests were administered to him by Webb, although he admitted to Webb that he had consumed several beers at the Halloween party he had earlier attended with Sara.

At both trials, appellant requested that the following instruction be given to the jury:

"Evidence has been received to the effect that the reason defendant, Russell "You are hereby instructed that if you find that it has been established by a preponderance of the evidence that the defendant had a good faith belief that Sara Marrufo might be in physical danger, and drove the car for her protection or to render possible aid, then you may acquit him based on this defense."

Pena, drove the car was because he believed that Sara Marrufo was in physical danger."

The trial court not only refused appellant's tendered instruction, but further instructed the jury, upon the panel's inquiry during its deliberations, that the defense of "justification" was in fact no defense to the charge.

The sole question on appeal is whether the trial court committed reversible error in refusing to instruct the jury, either by way of appellant's tendered instruction or a similar, court fashioned charge, regarding the applicability of the defense of duress.

Upon Proper Evidentiary Showing The Defense of Duress Is Available To Any Criminal Charge Other Than A Capital Offense

The United States Supreme Court has recently had occasion to discuss the defenses of duress and necessity in the context of a prosecution for escape from lawful confinement. In United States v. Bailey (1980), 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575, the high court observed as follows:

"Common law historically distinguished between the defenses of duress and necessity. Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim the defense of necessity. See Generally LaFave and Scott 374-384." (444 U.S. at p. 409, 100 S.Ct. at p. 634.)

Although California law regarding the "justification" defenses (i.e., "duress," "necessity," "compulsion," etc. see, fn. 2, ante ) appears sparse in comparison to that of most American jurisdictions, there nonetheless exist several Court of Appeal decisions which provide some guidance as to the parameters of those defenses--most recently the court in People v. Patrick (1981) 126 Cal.App.3d 952, 179 Cal.Rptr. 276, noted that:

"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. (See State v. Johnson (1971) 289 Minn. 196 [183 N.W.2d 541, 543, 45 A.L.R.3d 1432].) The commission of a crime cannot be countenanced where there exists the possibility of some alternate means to alleviate the threatened greater harm." (126 Cal.App.3d at p. 960, 179 Cal.Rptr. 276.)

In the leading California case regarding the applicability of the duress defense to a charge of prison escape, People v. Lovercamp (1974) 43 Cal.App.3d 823, 118 Cal.Rptr. 110, the court fashioned a five part judicial test for determining the availability of the defense. In such cases, the Lovercamp court observed that it was not formulating a new rule of law, but rather...