P. v. Diaz
Filed 8/26/13 P. v. Diaz CA2/6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR DIAZ,
Defendant and Appellant.
2d
Crim. No. B245667
(Super.
Ct. No. 2012026372)
(Ventura
County)
Oscar Diaz was convicted
by jury of evading an officer with willful
disregard (Veh. Code, § 2800.2, subd. (a)) and hit-and-run driving (Veh.
Code, § 20002, subd. (a).) In a
a prior strike conviction (Pen. Code, §§ 667, subds. (c)(1) & (e)(1);
1170.12, subds. (a)(1) & (c)(1)) and admitted serving two prior prison
terms (§ 667.5, subd. (b)). The trial
court sentenced him to eight years state
prison. Appellant appeals on the
ground that the trial court erred in not sua sponte instructing on the defense
of necessity. We affirm.
Facts and Procedural History
On July 19, 2012, at 3:00
in the afternoon, Oxnard Police Officer Matthew Ross was on patrol and saw
appellant driving a blue Honda on Ventura Road
near Doris Avenue with an
inoperable signal light. Officer Ross
activated his emergency lights to make a traffic top. Appellant appeared to be angry and led
Officer Ross on a two to three mile car chase.
Appellant turned down a
residential street, accelerated rapidly, and drove 25 to 60 miles per hour in a
residential area that had a posted speed limit of 25 miles per hour. Appellant ran a stop sign, turned right onto Ventura
Road, and drove past gas stations, fast food
restaurants, and pedestrians. At the
intersection of Ventura Road
and Gonzales Road,
appellant drove through a gas station and went westbound on Gonzales
Road, accelerating up to 50 or 60 miles per
hour.
Turning left onto Gallatin
Place, appellant drove 40 to 50 miles per hour
through a residential area as Officer Ross chased him with his siren and
emergency lights activated. At the
intersection of Ivywood Drive
and Ventura Road, appellant
ran a red light and hit a Chevy Malibu.
Appellant sped off, making unsafe lane changes and forcing vehicles off
the road. At the intersection of Ventura Road
and Wooley Road, appellant
cut off four vehicles and almost hit a large utility truck carrying propane or
air tanks. Driving eastbound on Wooley
Road, appellant lost control of the Honda and hit
a pole as he turned into an alley.
Officer Robert
Valenzuela assisted Officer Ross in the
chase and testified that K-9 Officer Scott Coe joined the pursuit, half-way
through the car chase When appellant hit
the pole, Officer Ross ordered him out of the Honda. Upon questioning after receiving and waiving
his constitutional rights, and Mirandized
him (Miranda v. Arizona (1996) 384 U.S. 436 [16 L.Ed.2d 694]) appellant
said that he fled because "he did not want to get a ticket."
At trial, appellant said
that he fled because he saw Officer Coe, not Officer Ross, when he was first
signaled to pull over. Appellant claimed
that Office Coe harassed him ten months earlier when he stopped appellant for
an equipment violation. Appellant feared
that Officer Coe would try to harass him again with his police dog. "[F]rom what I heard from my friends, I
thought my life was in danger, so I didn't want to stop until I knew there was
a safe place to stop at where there was a lot of pedestrians just in case he .
. put the dog on me or anything."
Appellant said that he tried to drive to a gas station where pedestrians
and bystanders could witness the traffic stop.
Appellant denied driving
at an excessive rate of speed or "lane splitting," denied hitting
another car, denied that he ran a red light, and denied that he cut off a
utility truck. Appellant denied that he
drove recklessly or endangered other motorists and said that he was searching
for a safe place to stop. In closing
argument, appellant's trial attorney told the jury "[i]f you consider Mr.
Diaz's testimony and you believe that Mr. Diaz[] was afraid of Officer Coe and
was trying to get to a place where people would have cell phones and could take
a picture if Officer Coe put his dog on him, then he's not guilty
today."
Defense of Necessity
Appellant argues that
the trial court erred in not sua sponte
instructing on the defense of necessity.
(CALCRIM 3043.) A trial court has
a sua sponte duty to instruct on a defense " 'only if it appears that
the defendant is relying on such a defense, or if there is substantial
evidence supportive of such a defense and the defense is not
inconsistent with the defendant's theory of the case. ' [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 157, italics
added.)
Appellant did not rely
on the defense of necessity or request that the jury be so instructed. Appellant's trial attorney told the jury that
"there's no intent to violate the law" and appellant was merely trying "to get
to a safe harbor." "[I]f Mr.
Diaz['s] driving and continuing to drive with police officers following him, if
his intention was to get away from the police, it's a criminal act. If his intention was to get to a safe harbor
or a safe place, it's not a criminal act.
It's that simple." Appellant
cites no reported case that intent "to get to a safe harbor or a safe
place" is the defense of necessity.
Under People v.
Breverman, supra, 19 Cal.4th
at page 157, the trial court had no sua sponte duty to instruct on the defense
unless there was substantial evidence to support the defense and it was
consistent with appellant's theory of the case.
Substantial evidence is evidence that a reasonable jury could find
persuasive. (People v. Lewis (2001)
25 Cal.4th 610, 645.) "To justify
an instruction on the defense of necessity, there must be evidence sufficient
to establish that defendant violated the law (1) to prevent a significant and
imminent evil, (2) with no adequate alternative, (3) without creating a greater
danger than one avoided, (4) with a good faith belief in the necessity to
prevent the greater harm, (5) with such belief being objectively reasonable,
and (6) under circumstances in which he did not substantially contribute to the
emergency. [Citations.]" (People
v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)
Viewing the evidence in
the light most favorable to appellant, there is no evidence that appellant
engaged the police in a car chase to prevent a significant and imminent
evil. The traffic stop was for an
inoperable signal light and initiated by Officer Ross, not Officer Coe. It was Officer Ross who made the traffic
stop, read appellant his Miranda rights, and took appellant's
statement. Appellant said that he fled
because he did not want a ticket.
Appellant's reliance on People
v. Springfield (1993) 13 Cal.App.4th 1674 is misplaced. There, the defendant was convicted of
transportation of a controlled substance (Health & Saf. Code, § 11352),
possession of a controlled substance (Health & Saf. Code, § 11350, subd.
(a)), and evasion of a police officer with reckless driving (Veh. Code, §
2800.2). The trial court failed to
instruct on Vehicle Code section 2800.1 (willfully fleeing pursuing peace
officer's motor vehicle) as a lesser included offense even though defendant
testified that he did not drive in willful and wanton disregard for the safety
of persons or property. (
1681.) Here, the jury was instructed on
the lesser included offense of misdemeanor evading a peace officer (Veh. Code,
§ 2800.1, subd. (a)). (CALCRIM
2182.)
There is no substantial
evidence that appellant initiated the car chase to prevent a significant and
imminent evil, that he had no adequate alternative, or that he had a good
faith, objective belief that the criminal act was necessary to prevent the
greater harm, i.e., possible harassment by Officer Coe. (People v. Pepper, supra, 41 Cal.App.4th at p. 1035.) Unlike People v. Lemus (1988) 203 Cal.App.3d 470 where the defendant
was tried for attempted murder and testified that the victim tried to stab him,
there was no testimony Officer Coe threatened appellant or attempted to injure
appellant before the car chase. (
" '[T]here must be
a showing of imminence of peril before the defense of necessity is
applicable. A defendant is 'not entitled
to a claim of duress or necessity unless and until he demonstrates that, given
the imminence of the threat, violation of [the law] was the only reasonable
alternative.' [Citation.] The uniform requirement of California
authority discussing the necessity defense is that the situation presented to
the defendant be of an emergency nature, that there be threatened physical
harm, and that there was no legal alternative course of action available.'
[Citations.]" (People v.
Galambos (2002) 104 Cal.App.4th 1147, 1162-1163.)
Appellant claimed that
he was simply trying to find a safe place to stop. That is not the defense of necessity. Appellant led Officer Ross on a two mile
chase, speeding past gas stations, fast food restaurants, businesses, and
crowded pedestrian areas -- the very "safe haven" that appellant
claimed would protect him from police harassment. "Under any definition of [the necessity
defense] 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 defense[] will fail. [Citation.]" " (United States v. Bailey (1980)
444 U.S. 394, 411 [62 L.Ed.2d 575, 591].)
Assuming, arguendo, that
the trial court erred in not instructing on the defense of necessity, the error
was harmless under any standard of review (Chapman v. California (1967)
386 U.S. 18, 24 [17 L.Ed.2d 705, 710] [harmless beyond a reasonable doubt]; People
v. Watson (1956) 46 Cal.2d 818, 836. [harmless error], People v.
Breverman, supra, 19 Cal.4th
at p. 149 [overruling People v. Sedeno (1974) 10 Cal.3d 703 reversible
per se standard].) It is uncontroverted
that appellant refused to pull over and instigated a police chase in which he
drove recklessly through residential and business areas, ran a red light and
hit a car, performed dangerous lane changes, cut off motorists, nearly hit a
large utility truck carrying hazardous materials, and endangered the lives of
motorists, pedestrians, and officers.
Appellant told Officer Ross it was all to avoid a traffic ticket. It was highly incriminating and refuted
appellant's later claim that he was afraid of Officer Coe and trying to find a
safe place to stop. But for the failure
to instruct on the defense of necessity, there is no reasonably likelihood that
appellant would have received a more favorable result. (People v. Breverman,
supra, 19 Cal.4th at p. 178.)
The judgment is
affirmed.
NOT TO BE
PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
Miriam R. Arichea, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Susan Sllivan Pithey, Supervising
Deputy Attorney General, for Plaintiff and Respondent.
