Filed 7/30/13 P. v. Pettway 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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 CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C071467

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F04570)

         v.

DELAUN PETTWAY,

                   Defendant and Appellant.




         A jury found defendant DeLaun Pettway guilty of robbery. At trial defendant
admitted committing the robbery but testified he did so under threat of violence. He
appeals his conviction on the basis that the trial court erroneously failed to instruct the
jury on the defense of necessity. Finding no error, we affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         At approximately 9:00 a.m. on June 20, 2011, defendant robbed a convenience
store. He was arrested several days later and confessed.
         At his trial for robbery, defendant testified to being an 18-year-old high school
dropout who spent much of his time at the residence of Radarryl Carr. Carr had a violent

                                                             1
history and often encouraged others to commit crimes through threats of violence. While
there, defendant was frequently exposed to criminal activity, including drug use, guns,
and violent behavior.
         On the morning of June 20, Carr woke defendant at 6:00 a.m. and ordered him to
commit the robbery. When defendant objected, Carr placed his hand on a gun and stated
refusal would have “consequences.” Taking the threat as one against his life or the life of
one of his family members, defendant robbed the store three hours later without Carr (but
with another individual). At trial, the court instructed the jury on the defense of duress.
Defendant did not request, and the trial court did not give, an instruction on the defense
of necessity, and a jury found defendant guilty of the robbery as well as other crimes.
The trial court sentenced him to 12 years in prison.
                                         DISCUSSION
         Defendant contends the trial court violated his “state and federal constitutional
rights to due process by failing to instruct [sua sponte] on the defense of necessity.” We
disagree.
         The trial court must instruct sua sponte on a specific defense “ ‘ “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.” ’ ” (People v. Gonzalez (1999) 74 Cal.App.4th 382, 389.) We review appeals
based on absent instructions de novo. (People v. Martin (2000) 78 Cal.App.4th 1107,
1111.)
         “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 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 he did not substantially contribute to
the emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)

                                                2
       Defendant argues that his testimony at trial sufficiently supported a defense of
necessity such that the trial court was obligated to give a necessity instruction to the jury
sua sponte. In regard to the no adequate alternative element of the defense, he recognizes
that a crime might be defensible on the ground of necessity “ ‘if it is justified by a need to
avoid an imminent peril and there is no time to resort to the legal authorities or such
resort would be futile.’ ” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164.)
Although he concedes the three-hour window between Carr’s threat and the commission
of the crime was enough time for defendant to contact authorities, defendant nonetheless
asserts that contacting the authorities was out of the question for other reasons.
       Defendant contends that “even when there is an opportunity to contact police after
a threat of future harm is made, this opportunity is not fatal to the defense of necessity” if
“the relevant circumstances in which defendant found [him]self” lower the bar
sufficiently enough. (People v. Humphrey (1996) 13 Cal.4th 1073, 1083.) That is,
according to defendant, “the jury could easily find that an objectively reasonable 18[-
]year-old boy, without a high school education and surrounded by a criminal element,
with a sensitivity towards gun violence, and numerous family members living in the same
neighborhood as a gun-toting criminal with a history of violence who had threatened to
hurt him, would not believe that contacting police was a legal alternative which was
completely adequate.” We disagree.
       Defendant argues the standard for assessing adequacy of legal alternatives is
totality of the circumstances. He offers no authority for this proposition, but does point
out that People v. Humphrey, supra, 13 Cal.4th 1073 applies the totality of the
circumstances standard to self-defense cases.1 That case is inapposite because self-



1       The court in Humphrey explained, “[a]lthough the belief in the need to defend
must be objectively reasonable, a jury must consider what ‘would appear to be necessary
to a reasonable person in a similar situation and with similar knowledge . . . .’ [Citation.]

                                              3
defense and necessity are not the same. The standards applicable to one are not
necessarily applicable to the other, and defendant provides no authority on this point
either.
          Defendant further argues that “if the opportunity to call police always defeated the
defense of necessity, it is difficult to fathom any case which would require instruction on
this defense. After all, a threat of future harm necessarily requires the passage of time
between the threat and the threatened harm; police could always be contacted or warnings
to the victims otherwise be given.” This statement, while internally consistent, is
nonetheless incorrect. The opportunity to call police does not always defeat necessity.
(See People v. Verlinde, supra, 100 Cal.App.4th at p. 1164.) If defendant had presented
evidence that resort to the legal authorities would have been futile, then he might have
been entitled to a necessity instruction. He presented no such evidence, however.
          Importantly, the necessity defense applies narrowly. (People v. Verlinde, supra,
100 Cal.App.4th at p. 1164) Accepting defendant’s argument would essentially grant
defendant immunity from prosecution for any crime he claimed someone else made him
do now or in the future. We can find no basis in precedent or policy to broaden the
necessity defense to such a degree.
          Because defendant did not present sufficient evidence to support a necessity
defense as a matter of law, no instruction was required. (People v. Pepper, supra, 41
Cal.App.4th at p. 1036.)




It judges reasonableness ‘from the point of view of a reasonable person in the position of
defendant . . . .’ [Citation.] To do this, it must consider all the ‘ “ ‘facts and
circumstances . . . in determining whether the defendant acted in a manner in which a
reasonable man would act in protecting his own life or bodily safety.’ ” ’ ” (People v.
Humphrey, supra, 13 Cal.4th at pp. 1082-1083.)

                                                4
                                   DISPOSITION
     The judgment is affirmed.



                                            ROBIE   , J.



We concur:



     NICHOLSON        , Acting P. J.



     MAURO         , J.




                                        5
