P. v. Pettway CA3

Filed 7/30/13 P. v. Pettway CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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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.)