People v. Saavedra

• Citation: 67 Cal.Rptr.3d 403,156 Cal.App.4th 561
• Decision Date: 29 October 2007
• Docket Number: No. D049187.,D049187.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Idalberto SAAVEDRA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

67 Cal.Rptr.3d 403

156 Cal.App.4th 561

The PEOPLE, Plaintiff and Respondent, v. Idalberto SAAVEDRA, Defendant and Appellant.

No. D049187.

Court of Appeal, Fourth District, Division 1.

October 29, 2007.

Appellate Defenders, Inc., and William D. Holman, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Gary W. Schons, Assistant Attorneys General, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorney's General, for Plaintiff and Respondent.

HALLER, J.

Idalberto Saavedra appeals from a judgment convicting him of possessing a weapon while confined in a penal institution. (Pen.Code,¹ § 4502, subd. (a).) He contends the trial court erred by failing to sua sponte instruct on duress and self-defense. Alternatively, he contends defense counsel provided ineffective representation by failing to request instructions on these two defenses.

We reject Saavedra's contention that the evidence supported a duress instruction. We agree with his assertion that self-defense may be a valid defense to a charge of inmate weapon possession, but find the omission of the instruction in this case to be harmless. Based on these holdings, Saavedra's ineffective representation claim also fails. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 2005, Saavedra, an inmate at Centinela State Prison (Centinela), was attacked by two other inmates in the prison yard. Responding to the altercation, the prison officials ordered all inmates in the yard to assume a sitting position on the ground. Officer Enrique Rosiles observed that the two inmates were punching Saavedra in the upper torso with closed fists. Saavedra was first standing and then sitting on the ground; his arms were raised upwards trying to deflect the blows. Officer Christopher Knight ordered the inmates to "get down," and threatened to spray the two assailants with pepper spray if they did not stop the attack. When the assailants did not comply with his orders, Officer Knight sprayed them. In response, the assailants, as well as Saavedra, laid down on the ground.

As a result of the attack, Saavedra was bleeding from his nostril and lower lip and his dentures had been knocked out. He had scrapes and bruises on his forehead, back and neck, a cut near his eye, and a cut on his hand. He appeared dazed and complained he was having difficulty breathing. He was taken to the medical clinic on the yard, where he was given an oxygen mask.

After being examined at the clinic, Saavedra was taken by stretcher to the central health center for further care. At the central health center, Saavedra was searched by Officer Henry Rosas. Inside Saavedra's shoe, Officer Rosas found an inmate-manufactured weapon, consisting of a single razor blade attached by masking tape to a shaving razor handle. The razor blade was wrapped in tissue paper.

Officer Rosas tried asking Saavedra questions but Saavedra appeared to be in so much pain that he could not answer. However, Saavedra was conscious and able to communicate with medical staff about his breathing difficulties, and his condition improved when he was at the central health unit. According to Officer Rosas, Saavedra never mentioned that he had a weapon in his shoe.

Testifying on his own behalf, Saavedra claimed that he seized the weapon when one of his assailants dropped it during the attack. He explained that as he was walking across the yard, he felt someone hit him in the back. As the two men hit him, he tripped one of the assailants so the assailant would fall on the ground. Saavedra then got on top of the assailant and started hitting him. As this assailant fell to the ground, Saavedra saw a weapon fall from the man's body, perhaps from his hand or pocket. Saavedra testified that he picked up the weapon and placed it in his shoe by the side of his foot. When asked if his assailant tried to pick up the weapon, Saavedra answered no, stating: "No. At that time the other one, this one, was trying to help him get up. And this one was also swinging at me. So I was on my knees on the ground. I picked up the weapon and put it in my shoe...." After the assailant on the ground got up, both attackers continued to hit Saavedra, who never managed to get up from the ground.

Saavedra testified that when he seized the weapon, all he was thinking about was defending himself, and he was worried that if his attackers got the weapon back they would use it to "cut [his] throat." However, he did not use the weapon to fight off the two attackers "[b]ecause [he] [did not] want to see anymore blood shed."

Saavedra testified that after the fight stopped he did not tell the officers about the weapon because his "mind was gone" from the impact of the blows, and he was having difficulty breathing because he had inhaled some of the pepper spray. He stated he did not disclose the weapon right away because he was unconscious; that had he been fully conscious he would have disclosed it sooner; and that he did disclose the weapon as soon as he was conscious. He explained that when the officer started searching him, he "became a little conscious" and at this point first told the officer there was a weapon in his shoe.

Based on the defense evidence showing that Saavedra picked up the weapon during the fight, the trial court instructed the jury on the defense of necessity. Defense counsel did not request instructions on duress or self-defense.

DISCUSSION

Saavedra contends that in addition to instructing the jury on the defense of necessity, the trial court should have sua sponte instructed on the defenses of duress and self-defense, or that his counsel should have requested these instructions. He asserts the failure to give these instructions created reversible error because the prosecution has the burden to disprove duress and self-defense beyond a reasonable doubt, whereas the defendant has the burden to prove necessity by a preponderance of the evidence.

A trial court has a sua sponte duty to instruct regarding a defense if there, is substantial evidence to support the defense and it is not inconsistent with the defendant's theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047, 31 Cal.Rptr.2d 128, 874 P.2d 903.) In deciding whether there is substantial evidence, "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, 38 Cal.Rptr.3d 624,127 P.3d 40.)

Duress

Duress is available as a defense to defendants who commit a crime "under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused." (§ 26, subd. 6; People v. Otis (1959) 174 Cal.App.2d 119, 124-125, 344 P.2d 342.) An essential component of this defense is that the defendant be faced with a direct or implied demand that he or she commit the charged crime. "The defense of duress, unlike the necessity justification, requires that the threat or menace be accompanied by a direct or implied demand that the defendant commit the criminal act charged." (People v. Steele (1988) 206 Cal.App.3d 703, 706, 253 Cal. Rptr. 773 [duress not available as a defense when inmate escaped in response to threats of bodily injury because persons making threats did not demand that defendant escape].) In contrast, the necessity defense is available when the defendant reasonably believed there was a threat of harm and no other means to alleviate the harm, and the harm sought to be avoided by the defendant's conduct was greater than the harm sought to be prevented by the law defining the charged offense. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100, 17 Cal.Rptr.3d 710, 96 P.3d 30; People v. Patrick (1981) 126 Cal. App.3d 952, 960, 179 Cal.Rptr. 276; People v. Richards (1969) 269 Cal.App.2d 768, 777, 75 Cal.Rptr. 597.)

Here, the facts supported a necessity defense based on the theory that Saavedra seized the weapon to prevent a more aggravated attack against him, which outweighed the harm sought to be prevented by forbidding prison inmates from possessing weapons. The facts did not support a duress defense because there are no facts showing an express or implied demand by Saavedra's attackers that he seize the weapon. Accordingly, the trial court was not required to instruct on the defense of duress.

Self-defense

The Attorney General argues that self-defense should not be available as a defense to a charge of possession of a weapon by an inmate, because the offense does not require proof of the inmate's intent or purpose for possessing the weapon. It is well established that a prison inmate charged with a violation of section 4502 cannot raise the defense of self-defense based on a claim ;hat a weapon was possessed for protection from an anticipated, future attack. (People v. Crenshaw (1946) 74 Cal.App.2d 29-30, 167 P.2d 781; People v. Velasquez (1984) 158 Cal.App.3d 418, 420, 204 Cal.Rptr. 640.) However, the courts have recognized in dicta that it may be permissible for an inmate to raise a narrow claim of self-defense when the inmate was "confronted with an emergency that ... justified his seizing one of the prohibited weapons in order to protect himself." (People v. Crenshaw, supra, 74 Cal.App.2d at p. 30, 167 P.2d 781, italics added; People v. Evans (1969) 2 Cal. App.3d 877, 881-882, 82 Cal.Rptr. 877, disapproved on other grounds in People v. King (1978) 22 Cal.3d 12, 25, 148 Cal.Rptr. 409, 582 P.2d 1000; People v. Steely (1968) 266 Cal.App.2d 591, 595-596, 72 Cal.Rptr. 368; People v. Purta (1968) 259 Cal. App.2d 71, 74, 66 Cal.Rptr. 38; People v. Velasquez, supra, 158 Cal.App.3d at pp. 420-421, 204 Cal.Rptr. 640.) As stated by the Velasquez court, "self-defense might justify violation of the statute where the prisoner was under imminent...