People v. Slack

• Decision Date: 22 May 1989
• Docket Number: No. D009318,D009318
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Frederick SLACK, Defendant and Appellant.

Page 702

258 Cal.Rptr. 702

210 Cal.App.3d 937

The PEOPLE, Plaintiff and Respondent, v. Robert Frederick SLACK, Defendant and Appellant.

No. D009318.

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

May 22, 1989.

Thomas J. Ulovec, Chula Vista, for defendant and appellant.

Edwin L. Miller, Jr., Dist. Atty., D. Michael Ebert and John Stuart Rice, Deputies Dist. Atty., for plaintiff and respondent.

WORK, Associate Justice.

After Robert Slack was convicted of driving under the influence of intoxicating beverages (Veh.Code, § 23152, subds. (a) and (b)) and admitted a previous conviction for the same charge, he successfully appealed to the Appellate Department of the San Diego Superior Court. That appellate body found the municipal court erred in determining Slack's offer of proof was insufficient to justify instructing the jurors on the defense of necessity. The Appellate Department certified the matter to this court to resolve what it perceived to be as a conflict between two published decisions of this Division, People v. Lemus (1988) 203 Cal.App.3d 470, 249 Cal.Rptr. 897 and People v. Patrick (1981) 126 Cal.App.3d 952, 179 Cal.Rptr. 276. Without further amplification, the order of certification states the Appellate Department relied on the holding in People v. Lemus, implying it would have reached a different result had it followed the holding in People v. Patrick. After certification, we asked the parties to brief the underlying issue of the correctness of the Municipal Court judgment and the Appellate Department's concern for decisional uniformity. The People and Slack agree there is no conflict between Lemus and Patrick, but differ on the underlying merits of the judgment. For the reasons set forth below, we find Lemus and Patrick approve the identical standard by which to evaluate whether a requested instruction relating to a theory of defense is supported by evidence sufficient to require it to be submitted to the jury, and affirm the Municipal Court's judgment of conviction.

I

Slack appealed to the Appellate Department on a settled statement solely on the trial court's refusal to instruct jurors on the defense of necessity. He does not dispute his intoxicated driving.

While we find the procedural aspect of this case unique in that neither party agrees with the Appellate Department's perception the two cited relevant authorities are in disagreement, the factual predicate submitted by Slack to support his defense of necessity is absolutely bizarre. In an offer of proof in camera, Slack stated he would testify he had been vacationing in Rosarito Beach and on September 24, 1985, he drove to Tijuana where he checked into a hotel. There he met a Mexican lawyer who accompanied him to dinner at a nearby restaurant. After eating (and apparently imbibing), Slack attempted to pay with a credit card issued in his mother's name which he was authorized to use. The waiter and "manager" of the restaurant challenged him because the credit card did not match his California identification card. Although Slack never saw anyone called to verify his authorization, the manager claimed the card was stolen. "After a lengthy discussion, either the manager or the waiter asked [Slack] and his companion to step outside the restaurant to discuss the matter further." There, two large men joined the group and spoke briefly to the manager. The intoxicated Slack, fluent in Spanish, overheard one large man state, "We will take care of it." Slack interpreted the statement as a threat of physical harm. After the manager "indicated" he was going to call the police to settle the situation, Slack ran to his car and drove away, followed by the two large men in a separate car. But these men "disappeared- ' when Tijuana police "joined the chase." Slack then drove "all the way" to the United States border point of entry at high speed pursued by the police, lights and sirens activated. Slack has had numerous contacts with the Tijuana police and on one occasion was assaulted by a Tijuana policeman. "[Slack] believed that if he had stopped for the police he would have been assaulted." Slack acknowledged that at no time did the two large men get any closer than four to five feet from him, did not threaten him, make any threatening gestures, nor speak directly to him. Although Slack knew the Tijuana police were pursuing him he made no effort to pull over or submit. Further, during the entire confrontation at the restaurant he was intoxicated.

The trial court found the foregoing offer of proof legally insufficient to sustain an instruction on the defense of necessity. Slack then presented no defense evidence and was found guilty.

II

Both the People and Slack cite the elements of a necessity defense as set forth in People v. Pena (1983) 149 Cal.App.3d Supp. 14, 25-26, 197 Cal.Rptr. 264. Pena, a drunk driving case, lists six elements which Slack must establish to justify an instruction in this context: (1) Slack must have driven while drunk to prevent a significant evil, (2) with no adequate alternative, (3) the harm flowing from intoxicated driving was not disproportionate to the harm avoided, (4) he had a good faith belief it was necessary to expose the public and property to the significant risk of harm inherent in a high speed chase of an intoxicated driver to prevent a greater harm, (5) his objective belief was reasonable under all the circumstances, and (6) he did not substantially contribute to creating the emergency.

The United States Supreme Court in United States v. Bailey (1980) 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 stated: "Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, 'a chance both to refuse to do the criminal act and also to avoid the threatened harm,' the defenses will fail." In Pena, the defendant contended he followed a deputy sheriff who had removed his 20-year-old scantily-clad girlfriend from his car in the nighttime after finding the two sleeping at the side of the road, because the deputy's activities during a "weapons search" of the girl while closely examining her "see through" teddy pajamas, led him to fear she might be in danger. The court held, under the circumstances testified to by defendant and his girlfriend, the court erred in refusing to instruct the jury it could find the defendant not guilty if he established he had an objectively reasonable good faith belief the young girl might be in physical danger and drove the car to provide her protection or aid.

Although the order of certification to this court refers to the Appellate Department's concern for a need to resolve its perceived conflict between Lemus and Patrick, it does not tell us upon what its perception is based. Since neither the People nor Slack detect a conflict, we have filtered both decisions through our judicial strainer and find them decisionally congruent. However, there are certain factual differences which are irrelevant to the present issue. First, Lemus addressed the failure to instruct on self-defense while Patrick, like this case, concerned the doctrine of necessity. In Patrick, the factual predicate from which the trial court was required to determine whether there was proffered " ' "evidence from which a jury composed of reasonable [persons]" ' " would find the necessity defense applicable (People v. Patrick, supra, 126 Cal.App.3d at p. 960, fn. 5, 179 Cal.Rptr. 276, citing People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1, quoting People v. Carr (1972) 8 Cal.3d 287, 294, 104 Cal.Rptr. 705, 502 P.2d 513), was produced by an offer of proof outside the jury's presence. In Lemus, this evidentiary base was established by trial testimony.

In Patrick, this court found the trial court correctly ruled a defendant's offer of proof, accepted as true, did not tend to show he personally had a good faith belief in the necessity of his action. Although the results in Lemus and Patrick differ, the relevant focus should be on the identity of the standard by which the sufficiency of the evidentiary foundation for the jury instruction was evaluated. Patrick recognized that doubts as to the sufficiency of the evidence to warrant an instruction should be resolved in the favor of the accused. (Citing People v. Wilson (1967) 66 Cal.2d 749, 763, 59 Cal.Rptr. 156, 427 P.2d 820.) However, this presupposes the evidence, if accepted in its totality by...