People v. Waters

• Decision Date: 18 January 1985
• Citation: 163 Cal.App.3d 935,209 Cal.Rptr. 661
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Dallas Moonchild WATERS, Defendant and Appellant. A025020.

Page 661

209 Cal.Rptr. 661

163 Cal.App.3d 935

The PEOPLE of the State of California, Plaintiff and Respondent, v. Dallas Moonchild WATERS, Defendant and Appellant.

A025020.

Court of Appeal, Sixth District, California.

Jan. 18, 1985.

Certified for Partial Publication

(Cal. Rules of Court, rule 976.1) ¹. Leslie E. Neve, Soquel, for defendant and appellant.

John K. Van de Kamp, Atty. Gen. of the State of California, Herbert F. Wilkinson, Margo J. Chinn, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

BRAUER, Associate Justice.

A jury convicted defendant of escape from a county jail in violation of Penal Code section 4532, subdivision (a). He was sentenced to one year and one day in state prison. At trial, he raised the affirmative defense of necessity; and he appeals claiming error in an instruction that he had the burden of establishing the defense by a preponderance of the evidence. A second ground for appeal; namely, that he was deprived of the effective assistance of counsel at the sentencing hearing, does not raise questions whose discussion merits publication.

1. INSTRUCTION ON THE AFFIRMATIVE DEFENSE

The defense of necessity which justifies escape in order to evade forcible sexual attack or serious bodily injury in the immediate future was carved out in Lovercamp v. California (1974) 43 Cal.App.3d 823, 118 Cal.Rptr. 110 as a matter of public policy and out of regard for the court's own dignity and in the exercise of its duty to formulate and apply proper standards for judicial enforcement of the criminal law. The very limited circumstances under which the defense is available were clearly spelled out in Lovercamp and need not be repeated here.

People v. Condley (1977) 69 Cal.App.3d 999, 1008-1009, 138 Cal.Rptr. 515, cert. den. (1977) 434 U.S. 988, 98 S.Ct. 619, 54 L.Ed.2d 483 held that the defendant has the burden of establishing the defense of necessity by a preponderance of the evidence. To the same effect, see generally People v. Tewksbury (1976) 15 Cal.3d 953, 127 Cal.Rptr. 135, 544 P.2d 1335. Defendant does not deny that the jury was correctly instructed in accordance with the rules laid down in Lovercamp and Condley.

His claim of error is based on the later case of People v. Roder (1983) 33 Cal.3d 491, 189 Cal.Rptr. 501, 658 P.2d 1302. He insists that Roder lowered his burden of proof from preponderance to merely raising a reasonable doubt as to his guilt.

In Roder, a prosecution for receiving stolen property, the jury was instructed in accordance with Penal Code section 496 that if it found certain facts to exist, it must presume one of the elements of the offense; namely, that defendant had the requisite guilty knowledge. The high court invalidated the mandatory presumption, holding that it unconstitutionally relieved the People of its burden to prove every element of the offense beyond a reasonable doubt.

We note that the holding is clearly limited to the elements of the offense. Not only does Justice Kaus make reference to that fact in several parts of the opinion (People v. Roder, supra, 33 Cal.3d at pp. 499 and 504, 189 Cal.Rptr. 501, 658 P.2d 1302), but in his summation he states unequivocally "... the trial court should fashion an ... instruction which ... makes clear that the prosecution retains the burden of proving every element of the offense beyond a reasonable doubt." (Id. at p. 507, 189 Cal.Rptr. 501, 658 P.2d 1302) Roder relied entirely on U.S. Supreme Court decisions interpreting the due process clause of the Fourteenth Amendment. Those decisions draw a clear demarcation line between elements of the offense and affirmative defenses. The clearest expression is found in Patterson v. New York (1977) 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281: "We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must...