P. v. Smith
Filed 12/3/12 P. v. Smith CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
TASHIA MONICA SMITH,
Defendant and Appellant.
C070183
(Super. Ct. No. 10F07361)
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is
ordered that the opinion filed herein on November 14, 2012, be
At page 6,
third full paragraph, delete the phrase “in passing†in the first sentence of
the paragraph so that the sentence reads:
Defendant
also asserts that her daughters’ testimony supported a necessity instruction,
but makes no sustained argument as to how it did so.
There is no change in
judgment. Appellant’s petition
for rehearing is denied.
BY THE COURT:
BUTZ , Acting P. J.
MURRAY , J.
DUARTE , J.
Filed 11/14/12 P. v. Smith CA3 (unmodified version)
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
TASHIA MONICA SMITH,
Defendant and Appellant.
C070183
(Super. Ct. No. 10F07361)
A jury convicted
defendant Tashia Monica Smith of assault with a deadly weapon (a minivan) and
found that she inflicted great bodily injury on the victim, her boyfriend
Roberto Clark (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (e)—count
2);
attempted murder (§§ 664/187, subd. (a)—count 1) and rejected the alleged
enhancement on that count that defendant personally used a dangerous and deadly
weapon (§ 12022, subd. (b)(1), (2)).
Sentenced to an
aggregate term of seven years in state prison, defendant contends the trial
court erred by refusing her requested instruction on the defense of
necessity. We conclude the court ruled
properly because no substantial evidence supported giving the instruction. Therefore, we shall affirm.
On the
afternoon of May 30, 2009, Comcast employees Lynda Dugger and Westley Lund were
sitting in their company truck near the intersection of 10th and E Streets in
downtown Sacramento after completing a job in that area. The truck, parked on the right side of 10th Street, was facing north; Dugger was in the
driver’s seat and Lund was in the passenger seat.
Lund saw an African-American male walking alone
on the sidewalk at a “determined pace,†coming toward them southbound on the
east side of 10th Street about 50 yards away.
Lund then saw a white Dodge or Chrysler minivan
approaching their position, coming up behind the pedestrian. A few seconds later, Lund saw the minivan cross opposing lanes of
traffic, climb the curb, drive across the grass parkway strip, and come up onto
the sidewalk behind the pedestrian, possibly striking him. He began to run, with the van in
pursuit. He ran across the intersection
of E Street, but the van, still on the sidewalk and on the wrong side of the
roadway, pinned him against a wrought-iron fence and struck him, sending his
body flying into the air before it came down.
The van then drove away.
plate number, then, joined by Dugger, administered first aid to the man, whose
leg was torn open from knee to ankle. He
kept saying, “I can’t believe she did this to me.â€
Dugger testified to the
same effect. Dugger estimated that the
van was driving on the sidewalk south of the intersection for at least 30
seconds before it fled the scene.
Defendant’s 11-year-old
daughter K.S. testified that she lives with four of defendant’s other children
in a downtown Sacramento apartment. On May 30,
2009, according to
K.S., defendant and Clark, the father of defendant’s youngest child, got into
an argument at the apartment. With all
but one of the children present, Clark kicked
defendant in the stomach, then went outside.
Defendant put some beer outside and closed the front door. Clark started
throwing beer bottles at the door.
Defendant rounded up her
children and went outside to put them in her van, parked at the curb. Clark threw
one more beer bottle, which shattered, causing some beer to go into K.S.’s
eye. According to K.S., this was the
last bottle he threw. After throwing it,
he left the scene and started walking down the street.
Defendant placed her
four children in the van and drove off.
According to K.S., defendant then tried to run Clark over; as he started to run, she struck him
with the van, creating an audible “bang.â€
K.S. did not see Clark throw
anything else during this time period.
After striking Clark, defendant drove on to the children’s
grandmother’s house.
K.S.’s eight-year-old
sister testified similarly. According to
K.S.’s sister, defendant hit Clark with
the van as he was walking, trying to cross the street. K.S.’s sister did not remember if Clark was carrying anything at the time.
A Sacramento police detective who interviewed Clark in the hospital a day or two later noted
that Clark was “severely injuredâ€; the top of his leg
appeared to have been “filleted†by the impact of the van. Clark told
the detective that defendant needed “anger management†therapy.
Clark was the only defense witness. He testified that he and defendant fought
inside her apartment and he kicked her in the stomach, then went outside and
started throwing beer bottles at the front door. He claimed he was still throwing bottles and
beating on the van’s side window when defendant put the children in the van.
According to Clark, he continued to curse, scream, throw
bottles, and beat on the van as defendant drove down 10th Street, right up to the moment the van struck
him. He was not running away, but was
trying to jump in front of the van, blocking its path and preventing defendant
from driving it away from him. Finally,
as she tried to veer away while going through the E Street intersection, she
“los[t] control†and “accidentally†hit him.
Clark admitted that at the preliminary hearing he
did not describe his own conduct this way and claimed that he did not see who
hit him. He said he had lied because he
feared being incriminated for accosting defendant, but was telling the truth
now because he did not want to see her “go to jail for something they didn’t do
on purpose.â€
After the
parties rested, defense counsel requested that the trial court instruct the
jury with CALCRIM No. 3403,
name="_ftnref3" title="">
standard instruction on necessity, based on “the testimony of Mr. Clark, as
well as the children.†(Counsel did not
explain how the children’s testimony supported the instruction.) The prosecutor objected that the facts did
not warrant this instruction. The trial
court denied the instruction, finding that there was no substantial evidence to
support a necessity defense.
Defendant
contends the trial court erred by denying the requested instruction, that the
error violated defendant’s federal constitutional rights (U.S. Const., 5th,
6th, & 14th Amends.), and that the error caused her prejudice. We conclude the court correctly denied the
instruction as unsupported by substantial evidence.
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.) But the court is not obliged to instruct on
theories without substantial evidentiary support. (People
v. Miceli (2002) 104 Cal.App.4th 256, 267 (Miceli).) The evidence
defendant relies on did not furnish such support for a necessity
instruction.
“A defendant raising the
defense of necessity has the burden of proving that [s]he violated the law ‘(1)
to prevent a significant evil, (2) with no adequate alternative, (3) without
creating a greater danger than the one avoided, (4) with a good faith belief in
the necessity, (5) with such belief being objectively reasonable, and (6) under
circumstances in which [s]he did not substantially contribute to the
emergency.’ †(Miceli, supra,
104 Cal.App.4th at p. 267.)
As this test makes
clear, the necessity defense depends on the premise that the act said to be
necessary was intentional. In other
words, to raise this defense the defendant must admit that he or she
deliberately did an act which would be criminal if not justified by necessity. By definition, an act done “ ‘to prevent
a significant evil’ †under the “ ‘good faith belief’ †that
there is “ ‘no adequate alternative’ †(Miceli, supra,
104 Cal.App.4th at p. 267) requires conscious choice—it cannot be
done unconsciously, accidentally, or negligently.
Clark’s testimony, on which
defendant mainly relies to support a necessity defense, actually negated that
defense. According to Clark, defendant
did not choose to strike him with the van:
She lost control while trying to avoid him, and hit him by
accident. This evidence supported a
defense theory of accident or misfortune (§ 26, subd. Five), and the trial
court gave an appropriate instruction on that defense below.
Defendant also asserts
in passing that her daughters’ testimony supported a necessity instruction, but
makes no sustained argument as to how it did so. We therefore do not consider these
undeveloped assertions. (
137, 214, fn. 19.)
Because defendant has
failed to show that any evidence supported a necessity instruction, we need not
discuss the elements of the necessity defense in detail. We note, however, that even if Clark had
testified that defendant struck him deliberately, there would still be no
evidence that defendant could not have avoided whatever threat he posed to her
or her children by driving in a different direction, by calling the police, or
by asking a witness (such as the Comcast employees) for help.
The judgment is
affirmed.
BUTZ , Acting P. J.
We concur:
MURRAY , J.
DUARTE , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code in effect at the time of defendant’s May 2009 crime.
name="_ftn2" title="">[2] Defendant, who lives on the 900 block of D
Street in Sacramento, is the registered owner of the 1996 Plymouth minivan that
struck Clark.
