Filed 8/19/15 P. v. Lewis CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066330

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS263363)

BRIAN DEVERICK LEWIS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Stephanie

Sontag, Judge. Affirmed.

         Thomas Jefferson School of Law and Alex D. Kreit, under appointment by the

Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Eric A. Swenson, and Allison V. Hawley, Deputy Attorneys

General, for Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

       Defendant Brian Deverick Lewis appeals from his conviction on one count of

possessing a controlled substance while in prison. Lewis contends that the trial court

erred and violated his right to due process in not permitting him to present the defense of

necessity. Lewis, who was found guilty of possessing marijuana, argues that he was

entitled to present a necessity defense, since he proffered evidence that "his nearly two-

year effort to obtain adequate pain medication from the prison had proven futile, leaving

him no reasonable alternative to possessing unauthorized medication."

       We conclude that Lewis's proffer regarding the defense of necessity was

insufficient to demonstrate that he was entitled to present such a defense. We therefore

conclude that the trial court did not violate Lewis's right to due process in not permitting

Lewis to present a necessity defense, and we affirm the judgment.

                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On October 22, 2012, Lewis, an inmate at Richard J. Donovan Correctional

Facility, was found smoking marijuana in his cell. The correctional officer who smelled

marijuana approached Lewis's cell, saw him holding two marijuana cigarettes, and, after

searching Lewis's person, found 13 bindles, totaling 12.17 grams, of marijuana.




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       The San Diego County District Attorney filed an information alleging that Lewis

possessed a controlled substance while in prison (Pen. Code, § 4573.6).1 The

information also alleged that Lewis had been previously convicted of four serious or

violent felonies, within the meaning of sections 667, subdivisions (b) through (i),

1170.12, and 668.

       A jury convicted Lewis of possessing a controlled substance while in prison.

Lewis admitted to having suffered a prior strike conviction. The trial court sentenced

Lewis to two years in prison. Lewis filed a timely notice of appeal.

                                            III.

                                      DISCUSSION

       Lewis contends that the trial court violated his due process rights "by barring his

necessity defense where [he] presented substantial evidence that his nearly two-year

effort to obtain adequate pain medication from the prison had proven futile, leaving him

no reasonable alternative to possessing unauthorized medication."

A.     Additional background

       Prior to trial, Lewis filed a motion seeking to be permitted to present the common

law defense of necessity. Lewis argued that he suffered from chronic pain, and that

because prison personnel had failed to adequately address his medical needs, it had

become necessary for him to use marijuana to treat his severe and constant pain.




1      Further statutory references are to the Penal Code unless otherwise indicated.
                                              3
       Lewis recounted that he had filed administrative medical complaints and appeals

concerning his medical care on more than 10 occasions. Lewis first filed an

administrative request in November 2010, while he was incarcerated at Folsom State

Prison. In that request, Lewis noted that he had been waiting for 60 days to see a doctor

and was in pain. On December 8, 2010, Lewis saw a doctor who prescribed a two-week

regimen of Tylenol for Lewis's pain and noted that Lewis should "have a follow up

thereafter." That doctor also advised Lewis to do some neck and back exercises.

       Lewis submitted four additional requests for medical treatment for back pain in

January, March, and June 2011. In March, Lewis was given morphine. In June, Lewis

requested morphine. On or around June 21, he was told that he would be seeing a doctor

in a week. When Lewis had not seen a doctor by July 1, he filed an administrative

appeal, requesting that his "back and neck pain be addressed and that [he] be allowed to

speak to a doctor."

       Lewis filed an additional medical treatment request on August 5, 2011. Lewis

consulted with a nurse who issued a "referral to MD." At that time, Lewis had reported

"acute/chronic pain" at nine on a scale of one through 10. Lewis was being given

naproxen at that time. The notes also state that Lewis "will refile if [his back] worsens in

[the] meantime."

       The next medical treatment request that Lewis filed was on November 14, 2011.

He was seen by a nurse within two days of this request.



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       On February 14, 2012, Lewis filed a "Patient/Inmate Health Care Appeal." On the

form, Lewis stated that he had been "in extreme back pain" for the past two months, and

that his "medication does not work and has expired." He complained that he had waited

six weeks to see a doctor, and that his last three medical appointments had been

cancelled.

       Lewis filed a "third 602 [appeal]" seeking to see a doctor on May 17, 2012. He

said that he had been prescribed ibuprofen, and that it had not alleviated his back and

neck pain. On May 29, 2012, Lewis sent a letter to the Healthcare Appeals Coordinator

regarding a "[d]enial of right to file appeal." Lewis complained that his "medications

have expired" and sought further treatment. Lewis was seen on May 31, 2012 by Dr.

Paul Gallagher. Dr. Gallagher noted that "unfortunately, recommendations by Dr. Griffin

[on March 5, 2012] have never been followed through on." Those recommendations had

included that Lewis undergo an MRI of his cervical spine. Dr. Gallagher requested an

"Orthopedics evaluation of carpal tunnel and ulnar neuropathy and an MRI of the

patient's neck." With respect to Lewis's medications, Dr. Gallagher noted that "Med

reconciliation reviewed with patient" and made no changes to Lewis's medications. Dr.

Gallagher's notes do not indicate that Lewis was seeking or required a change in

medications.

       Apparently, as of July 12, 2012, Lewis had not undergone an MRI. He filed a

"Patient/Inmate Appeal" form on that date indicating that he had been informed that the



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MRI request had been denied. The form indicates that this appeal was "Cancelled" on

August 7, 2012.

       On September 14, 2012, Lewis was transferred to the Richard J. Donovan

Correctional Facility. Lewis was "designated to be housed in a Lower Bunk/Lower Tier

cell." However, because there were "no cells available" to accommodate his needs, he

was placed in the Administrative Segregation Unit. In papers filed in the trial court,

Lewis asserted that while in the Administrative Segregation Unit, he was denied "his

medical appliances which included a back and wrist brace."

       Lewis filed a petition for a writ of habeas corpus on October 16, 2012, regarding

his placement in the Administrative Segregation Unit. The petition was denied by the

trial court due to Lewis's failure to include a copy of his administrative appeal in support

of the petition.

       Sometime between October 16 and October 22 (the date Lewis was found in

possession of marijuana), he was placed in the general population.

       In support of his motion to be permitted to present the defense of necessity,

Lewis's attorney proffered the testimony of a pain management expert, Dr. David

Bearman, who was prepared to testify regarding the efficacy of marijuana for medical

purposes, and to the fact that "he would have prescribed marijuana to treat Mr. Lewis'

condition."

       After hearing argument from both parties concerning Lewis's offer of proof

regarding the defense of necessity, the trial court ruled that Lewis would not be permitted

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to present that defense. The trial court determined that Lewis's offer of proof on the

common law medical necessity defense was insufficient to permit the evidence pertinent

to it to go to the jury. The trial court concluded, "I think the legal alternatives were not

exhausted, because it appear[s] that the appeals were responded to in most respects." The

trial court also concluded, "I don't think that it even rises to the level to bring to a jury,

because the emergency basis is not reached."

B.     Analysis

       California generally recognizes a common law necessity defense when a defendant

is charged with committing any criminal act except the taking of an innocent person's

life. (People v. Slack (1989) 210 Cal.App.3d 937, 940 (Slack).) An individual claiming

the common law defense of necessity must establish six required elements: "1. The act

charged as criminal must have been done to prevent a significant evil; [¶] 2. There must

have been no adequate [legal] alternative to the commission of the act; [¶] 3. The harm

caused by the act must not be disproportionate to the harm avoided; [¶] 4. The accused

must entertain a good-faith belief that his act was necessary to prevent the greater harm;

[¶] 5. Such belief must be objectively reasonable under all the circumstances; and [¶] 6.

The accused must not have substantially contributed to the creation of the emergency."

(People v. Pena (1983) 149 Cal.App.3d Supp. 14, 25-26, fns. omitted; see also

CALCRIM No. 3403.)

       "The standard for evaluating the sufficiency of the evidentiary foundation is

whether a reasonable jury, accepting all the evidence as true, could find the defendant's

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actions justified by necessity." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1539

(Trippet), citing Slack, supra, 210 Cal.App.3d at p. 941.) "The court in Slack noted that

satisfying the required foundational burden through an offer of proof rather than on the

witness stand makes no difference to the standard of review on appeal, which is 'whether

there is evidence deserving of consideration from which reasonable jurors could conclude

the Pena elements have been satisfied.' " (Trippet, supra, at p. 1539.)

       We need not analyze all six elements of the common law necessity defense in this

case because we conclude, as a matter of law, that Lewis failed to demonstrate that he

could establish that he had no adequate legal alternative to possessing marijuana.2

       "Under any definition of the[] defenses [of duress and necessity] 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." (United States v. Bailey (1980) 444 U.S. 394, 410 (Bailey).) Thus, if

a defendant had legal alternatives to prevent or avoid the alleged "significant harm," he or

she is not entitled to a necessity defense.

       Lewis offered evidence that he had complained about his pain to prison personnel

on a number of occasions, that he had received morphine, and that he was not satisfied

2      Because we conclude that Lewis failed to proffer sufficient evidence to
demonstrate his ability to establish a necessity defense, we need not address the People's
contention that a necessity defense is unavailable to Lewis as a result of the
Compassionate Use Act of 1996's limitations regarding the necessity defense (see Health
& Saf. Code, § 11362.5; see also People v.Galambos (2002) 104 Cal.App.4th 1147, 1159
[holding that the "limited immunity afforded under" the Compassionate Use Act of 1996
"is incompatible with a common law defense of medical necessity"]).
                                              8
with the pain relief provided by morphine or ibuprofen. He had not tried other

medications, however, and he did not present evidence that alternative, effective legal

pain medications did not exist, or that he had sought out and tried alternative pain

medications and those medications were ineffective. An individual "cannot claim to have

no reasonable alternative to smoking marijuana when a legal medication is available and

known to both [him or] her and [his or] her doctor." (Trippet, supra, 56 Cal.App.4th at p.

1539, citing Bailey, supra, 444 U.S. at p. 410, and People v. Patrick (1981) 126

Cal.App.3d 952, 960.) Lewis did not present evidence that there existed no other legal

medications available to him that could have addressed his pain and that marijuana was

his only option for pain management. In fact, his complaints often refer to his requests

for more or different medications to alleviate his symptoms.

       Lewis contends, however, that even if there might exist legal medications that

could have alleviated his pain, as a result of his incarceration he is in a unique position;

according to Lewis, he does not have the ability to "go to a different doctor or try a

different prescription," which, he maintains, effectively meant that he had no legal

medical alternatives available to him. Lewis asserts that "going through the prison health

care system was no longer a reasonable legal alternative" and that "the only other

available alternative would be for [him] to possess an unauthorized drug." Lewis

acknowledges that "alternative pain medications and treatments existed and that Lewis

did not 'try' them," but contends, "what this argument misses is that for nearly two years,

the prisons inexplicably refused to make alternative medications available for Lewis to

                                              9
try, despite his repeated requests for effective treatment." Thus, Lewis's medical

necessity argument is not simply that he needed marijuana to address his pain, but that

because he was unable to obtain adequate pain relief through the prison health care

system, he was therefore essentially "forced" to use marijuana to address his pain.

       Although we acknowledge that Lewis's position as a confined prisoner

complicates the issue of the availability and/or convenience of medical care that could

address his chronic pain, we disagree with Lewis's contention that his status as a prisoner

left him with no legally permissible alternatives for obtaining adequate pain management.

Although the record discloses that Lewis made a number of initial requests for pain

treatment, Lewis has not pointed to any portion of the record demonstrating that he

pursued appeals of any of the medical decisions past a second level review. Further, he

did not file a petition for habeas corpus challenging his medical care, or a civil lawsuit

seeking a different or more effective treatment. Lewis has made no showing that he

could not have obtained effective pain relief from his chronic pain through one of these

legal methods of addressing his concerns about the inadequacy of his medical treatments

by medical staff. Therefore, as a matter of law, no reasonable jury could conclude that

Lewis's illegal possession of marijuana was the sole remedy available to him to address

the alleged failure of medical staff to assist him with his chronic pain.




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                                         IV.

                                   DISPOSITION

      The judgment of conviction is affirmed.




                                                 AARON, J.

WE CONCUR:


HALLER, Acting P. J.


IRION, J.




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