P. v. Vanhemert
Filed 6/20/13 P. v. Vanhemert CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
ADRIANUS H.J. VANHEMERT,
Defendant and
Appellant.
2d Crim. No.
B240063
(Super. Ct. No.
2010013619)
(Ventura
County)
Appellant Adrianus
Vanhemert has a history of traffic encounters with several peace officers in
the city of Ojai, including Deputy
Michael Harris. On this occasion, Deputy
Harris stopped appellant for unlawfully
honking his horn (Veh. Code,
name="_ftnref1" title="">[1] § 27001).
After appellant indicated he did not have a valid license or
registration, Deputy Harris asked him to step out of his vehicle. Having seen the deputy approach with his hand
on his pistol, and having been informed he could be taken to jail, appellant
sped away and drove to the police station.
In the process, he ran stop signs, drove on the wrong side of the road,
and caused other drivers to brake to avoid a collision.
A jury subsequently
convicted appellant of evading a peace officer while driving recklessly
(§ 2800.2, subd. (a)). The trial court
suspended imposition of sentence and placed him on three years' probation with
terms and conditions including that he serve 180 days in county jail. Appellant contends, inter alia, that he was
entitled to have the jury instructed on the defense of necessity pursuant to
CALCRIM No. 3403. He claims the
circumstances of his encounter with Deputy Harris, coupled with his prior
history with the deputy, led him to believe he was about to be physically
harmed. We conclude there was no
substantial evidence to support the instruction. We also reject appellant's claims that the
court erred in excluding the preliminary hearing testimony of a purportedly
unavailable witness, and in excluding as inadmissible hearsay certain
extrajudicial statements appellant made prior to his arrest. Accordingly, we affirm.
STATEMENT OF FACTS
On the afternoon of April 15, 2010, Deputy Michael Harris
of the Ventura County Sheriff's Department was on uniformed patrol in the city
of Ojai when he witnessed appellant
unlawfully sound his vehicle horn in violation of section 27001. Deputy Harris also noticed that appellant's
windows may have been tinted in violation of section 26708. After running a registration check on
appellant's vehicle, Deputy Harris decided to make a traffic stop.
Deputy Harris drove up
behind appellant and activated his overhead lights. Appellant continued driving for about two or
three minutes before he pulled over.
Deputy Harris got out of his patrol car, started the tape recorder on
his gun belt, and placed his hand on his holstered firearm as he approached
appellant's vehicle. The deputy
recognized appellant, whom he knew as "Dutch," from prior traffic
stops resulting in tickets that appellant had contested. The deputy also noticed that someone was sitting
in the front passenger seat.
Appellant's driver side
window was rolled down a few inches.
Deputy Harris told appellant to roll the window down and produce his
license and registration. Appellant
handed the deputy registration and insurance cards that were expired and did
not produce a license. When the deputy
told appellant he was possibly going to jail for
driving
without a license, appellant referred to the deputy as "retarded" and
called him several other derogatory names.
Deputy Harris asked
appellant to step out of his vehicle.
Based on prior contacts, the deputy wanted to separate appellant from
his passenger so he could have a reasonable conversation with him. Instead of complying, appellant drove
off.
Deputy Harris followed
appellant with his siren and overhead lights activated. The pursuit was joined by Deputy Jacob
Valenzuela, who had arrived in a separate patrol car shortly before appellant
drove off. The deputies pursued
appellant as he sped through a residential area. Appellant ran several stop signs and other
vehicles had to brake to avoid colliding with him. At one point, appellant drove at least 40
miles per hour on the wrong side of a residential street.
Appellant finally
stopped at the intersection of Ventura and Santa Ana Streets, just north of the
Ojai Police Station. Deputy Harris got
out of his patrol car and pointed his gun at appellant's vehicle. When appellant got out of his vehicle, Deputy
Harris repeatedly told him to get on the ground and reveal his hands. Appellant did not comply and kept his hands
to his sides with his fists clenched. He
initially walked in the direction of the deputies, then appeared to walk toward
the police station. Deputy Harris
reholstered his gun after he could see appellant did not have a weapon.
As appellant began
walking toward the police station's office lobby, Deputy Valenzuela pointed his
taser at him and ordered him to get on the ground. When appellant continued walking, the deputy
used the taser on him and he fell to the ground. Deputy Harris arrested appellant and placed
handcuffs on him.
Appellant testified in
his own behalf. He was born in Holland
and came to the United States in 1986, when he was 32 years old. He moved to Ojai six weeks after arriving in
the United States. At some point, he
became a part-time chauffer and began acting as a "designated driver"
for people who had "too many drinks."
The police initially approved, but their attitude changed after
appellant began driving an old school bus that allowed him to give rides to a
couple hundred people every weekend.
Since February of 2008, appellant had been pulled over by the police
over 30 to 40 times and had received about 40 tickets.
Appellant believed he
was being harassed by the police, and by Deputy Harris in particular. Appellant had challenged some of the deputy's
tickets in court. On one such occasion,
the two exchanged words and Deputy Harris "stormed" out because he
was unhappy with the result. Other
encounters appellant had with the deputy were friendly, however.
On the day of the
incident, appellant was giving someone a ride to the train station when he
honked his horn at a friend who was walking her dog. Appellant continued driving until he noticed
he was being pulled over. When Deputy
Harris approached, appellant rolled his window up a few inches because the
deputy "had his hand on his gun and . . . opened up his clip." Appellant was afraid that "because of
what happened in the courtroom, that something was going to happen, you know,
he snapped or something like that."
Deputy Harris told
appellant to roll his window down, but appellant refused and exchanged "a
couple of choice words" with him.
Appellant asked why he was being pulled over, and the deputy said
something about honking his horn in a residential area. Appellant told the deputy, "You know,
you're not that cute." Deputy
Harris asked appellant for his license, proof of insurance, and
registration. Appellant did not know
where the papers were because the car was registered to his stepson. When he went to retrieve his license from his
pocket, he realized he did not have it with him.
Deputy Harris told
appellant that driving without his license was a good reason to arrest him and
take him to jail. Appellant then complied
with the deputy's order to get out of his vehicle. The deputy's statement that he was going to
take appellant to jail, coupled with the fact that he had his hand on his gun
throughout most of the exchange, caused appellant to fear for his safety. According to appellant, "I decided to
get back in my car and get protection from more people. If he was going to arrest me, I don't know if
I ever was going to show up at the police station. I might have showed up at the east end
somewhere." Appellant got into his
car without the deputy's permission and said, "Let's go." He intended to drive to the police station
and file a complaint against Deputy Harris.
DISCUSSION
I.
Refusal
to Instruct on Necessity Defense (CALCRIM No. 3403)
"By definition, the
necessity defense is founded upon public policy and provides a justification
distinct from the elements required to prove the crime. [Citation.]" (People
v. Heath (1989) 207 Cal.App.3d 892, 900-901.) "The situation presented to the
defendant must be of an emergency nature, threatening physical harm, and
lacking an alternative, legal course of action.
The defense involves a determination that the harm or evil sought to be
avoided by such conduct is greater than that sought to be prevented by the law
defining the offense charged." (
an emergency situation when he evaded Deputy Harris, and that the court thus
erred in refusing his request to instruct the jury as set forth in CALCRIM No.
3403.
Fleeing from a peace officer and endangering the lives and property of
others through reckless driving, purportedly to avoid an objectively
unreasonable fear of some unspecified physical harm, does not entitle one to
claim the defense of necessity. On the
facts of this case the claim lacks any substantial evidence to support it and
is, at best, specious.
The trial court must
instruct on the general principles of law openly and closely connected with the
case and necessary for the jury's understanding of the case, including any
defenses on which the defendant relies or which are supported by substantial
evidence and not inconsistent with the defendant's theory of the case. (People
v. Boyer (2006) 38 Cal.4th 412, 468–469.)
The court need not, however, instruct on theories that lack substantial
evidentiary support. (
256, 267.)
"Except as to
crimes that include lack of necessity (or good cause) as an element, necessity
is an affirmative defense recognized based on public policy
considerations. [Citations.] To justify an instruction on the defense of
necessity, a defendant must present evidence sufficient to establish that she
violated the law (1) to prevent a significant and imminent evil, (2) with no
reasonable legal alternative, (3) without creating a greater danger than the
one avoided, (4) with a good faith belief that the criminal act was necessary
to prevent the greater harm, (5) with such belief being objectively reasonable,
and (6) under circumstances in which she did not substantially contribute to
the emergency." (
1128, 1134-1135 (Kearns).) "Necessity does not negate any element
of the crime, but represents a public policy decision not to punish such an
individual despite proof of the crime."
(People v. Heath, supra, 207
Cal.App.3d at p. 901.) Because the
necessity defense does not negate an element of the crime for which the defense
was offered, appellant bore the burden of proving the defense by a
preponderance of the evidence. (
name="_ftnref3" title="">[3]
In urging the court to
give CALCRIM No. 3403, appellant offered that "the necessity would come
from his fear of being taken to jail or worse" and added, "he wound
up getting tased approaching a police station with his hands in the air. And just the fact that the two had collided
in the past in court. . . . And the
tinted windows he was never charged with.
His windows were legal."
When the court asked what "emergency" prompted appellant to
act, counsel replied, "The emergency was that he was going to be taken to
jail or something else and just for saying I don't have my license." The court correctly found this offer of proof
inadequate to support an instruction on the necessity defense. Appellant did not point to any
"emergency" that would justify his actions. The fact that appellant had "collided in
the past in court" with Deputy Harris did not give rise to an objectively
reasonable belief that the deputy was going to subject him to significant
bodily harm or similar evil. Even if
appellant had reasonably harbored such a belief, he could have asked Deputy
Valenzuela to intervene on his behalf.
Instead, appellant endangered the safety of others by speeding and
running stop signs. Several drivers had
to swerve to avoid colliding with him.
In this regard, appellant plainly created a danger greater than the one
he purportedly sought to avoid. His
request to instruct the jury with CALCRIM No. 3403 was thus properly refused.
II.
Former
Testimony of Unavailable Witness (Evid. Code, § 1291)
Appellant asserts the
court erred in excluding the preliminary hearing testimony of James Cooke
Hartnett, who was a passenger in appellant's vehicle during the incident. He claims that Hartnett's prior testimony was
admissible under Evidence Code section 1291 because he made the requisite
showing that Hartnett was unavailable to testify at trial. We disagree.
Evidence Code section
1291, subdivision (a) provides in pertinent part that "[e]vidence of
former testimony is not made inadmissible by the hearsay rule if the declarant
is unavailable as a witness . . . ."
Subdivision (a)(5) of Evidence Code section 240 provides that a
declarant is unavailable as a witness if he or she is "[a]bsent from the
hearing and the proponent of his or her statement has exercised reasonable
diligence but has been unable to procure his or her attendance by the court's
process."
Generally, "'[w]hat
constitutes due diligence to secure the presence of a witness depends upon the
facts of the individual case.
[Citation.] The term is incapable
of a mechanical definition. It has been
said that the word "diligence" connotes persevering application,
untiring efforts in good earnest, efforts of a substantial character. [Citation.]
The totality of efforts of the proponent to achieve [the] presence of
the witness must be considered by the court.
Prior decisions have taken into consideration not only the character of
the proponent's affirmative efforts but such matters as whether he reasonably
believed prior to trial that the witness would appear willingly and therefore
did not subpoena him when he was available [citation], whether the search was
timely begun, and whether the witness would have been produced if reasonable
diligence had been exercised [citation].'
[Citation.]" (
523.)
The trial court's ruling
on due diligence presents a mixed question of fact and law subject to our independent
review. (People v. Cromer (2001) 24 Cal.4th 889, 892-893.) To the extent the court resolved evidentiary
conflicts regarding historical facts, we review the findings for the existence
of substantial evidence. (Id.
at pp. 894, 900–902.)
As an offer of proof for
Hartnett's unavailability, defense counsel represented that she and appellant
had repeatedly called Hartnett's mother in an effort to discover his
whereabouts. The mother told appellant
that Hartnett was in either Portland or Canada.
When counsel tried to subpoena Hartnett's mother for the purpose of
locating Hartnett, it was discovered she had moved and her whereabouts were
unknown. Counsel also claimed she had
subpoenaed Hartnett for a prior trial date over a year earlier, but she did not
have a proof of service. According to
counsel, Hartnett disappeared after receiving a letter from the Orange County
District Attorney stating that he would be arrested if he appeared as a
witness. Counsel never saw such a
letter, but "begged" Hartnett's mother to have him call counsel so
that she could help him with the Orange County matter. When the court asked whether she had sought a
warrant after Hartnett failed to appear under the subpoena, counsel responded
that she had not done so "[b]ecause I was told he was gone and out of the
jurisdictional reach and so I just asked that we be allowed to use his
preliminary." Counsel also offered
that she "made efforts through Google" to locate Hartnett.
We agree with the
court's finding that appellant failed to establish he exercised reasonable
diligence in seeking to secure Hartnett's attendance at trial. Although counsel claimed she subpoenaed
Hartnett for a prior trial date, she did not provide the court with the
subpoena or a proof of service.
Moreover, counsel did not ask the court to issue a warrant after
Hartnett failed to appear in response to the subpoena. Contrary to counsel's implication, our state
courts had the power to procure Hartnett's attendance at appellant's trial even
if he was in Oregon or Canada. (Pen.
Code, § 1334 et seq.; 28 U.S.C. § 1783; People v. Herrera (2010) 49 Cal.4th 613, 626.)
Even if appellant
established that he exercised reasonable diligence in procuring Hartnett's attendance,
the court's exclusion of Hartnett's prior testimony was harmless. Hartnett essentially testified that (1)
appellant was stopped after honking his horn at a friend; (2) Deputy Harris
approached appellant's vehicle with his weapon in his hand; (3) appellant said
he was going to the police station after he was stopped; (4) appellant walked
to the front door of the police station with his hands raised in the air while
Deputy Harris and several other officers had their guns drawn; and (5) an
officer other than Deputy Harris shot appellant with a taser gun. Because none of this testimony bolsters
appellant's proffered defense of necessity, any error in its exclusion was
harmless. (People v. Watson (1956) 46 Cal.2d 818 (Watson); Chapman v.
California (1967) 386 U.S. 18.)
III.
Extrajudicial
Statements
In his final claim,
appellant challenges the court's hearsay exclusion of a witness's testimony
that he heard appellant say, "this isn't right" as he was walking to
the front door of the police station. For
the first time on appeal, appellant contends the statement should have been
admitted under the state of mind exception to the hearsay rule. This claim was not raised below, so it is
forfeited. (People v. Dixon (2007) 153 Cal.App.4th 985, 997.) In any event, appellant fails to establish
prejudice. His statement "this
isn't right" had no tendency to prove any element of the necessity
defense. Rather, it merely demonstrated
his belief that he was being treated unfairly.
Because the result would have been no different had the statement been
admitted, its exclusion was harmless. (
429; Watson, supra, 46 Cal.2d at p.
837.)
CONCLUSION
It is clear that
appellant has a longstanding dispute with the sheriff's deputies serving in
Ojai, and in particular with Deputy Harris.
However sincere his beliefs of persecution may be, he may not engage in
life threatening conduct and then take shelter in a claim that it was legally
necessary to do so. Appellant's dispute
with this officer on this occasion would have been properly settled before a
judge in traffic court as had been done before.
Appellant had no legally justifiable reason to evade the deputy; he was
not entitled to a jury instruction to that effect.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Patricia
M. Murphy, Judge
Superior
Court County of Ventura
______________________________
Susan Morrow Maxwell,
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 Sullivan Pithey, Supervising
Deputy Attorney General, Rene Judkiewicz, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All further undesignated statutory references
are to the Vehicle Code.
crime] if (he/she) acted because of legal necessity. [¶] In
order to establish this defense, the defendant must prove that: [¶] 1
(He/She) acted in an emergency to prevent a significant bodily harm or evil to
(himself/herself/ [or] someone else);
[¶] 2 (He/She) had no adequate
legal alternative; [¶] 3 The defendant's acts did not create a
greater danger than the one avoided;
[¶] 4 When the defendant acted,
(he/she) actually believed that the act was necessary to prevent the threatened
harm or evil; [¶] 5 A reasonable person would also have
believed that the act was necessary under the circumstances; [¶]
AND [¶] 6 The defendant did not substantially
contribute to the emergency. [¶] The defendant has the burden of proving this
defense by a preponderance of the evidence.
This is a different standard of proof than proof beyond a reasonable
doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more likely
than not that each of the six listed items is true."
