People v. Waters

California Court of Appeal Jan 18, 1985 No. A025020Published

Before: Brauer

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Holding. The court held that a defendant asserting the affirmative defense of necessity in an escape prosecution bears the burden of proving that defense by a preponderance of the evidence, as such defenses are distinct from the elements of the crime.

Issues

Whether a defendant must prove the affirmative defense of necessity by a preponderance of the evidence or merely raise a reasonable doubt.
Whether the holding in People v. Roder regarding the burden of proof for elements of an offense applies to affirmative defenses.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Condley, supra, 69 Cal.App.3d 999, hold that defendant has the burden of proof to a preponderance; and Roder left Tewksbury and Condley unimpaired.”

“Necessity is an affirmative public policy defense, in effect a plea in avoidance and justification, which comes into focus only after all elements of the offense have been established.”

Opinion

BRAUER, J.

A jury convicted defendant of escape from a county jail in violation of Penal Code section 4532, subdivision (a). He was sentenced to one year and one day in state prison. At trial, he raised the affirmative defense of necessity; and he appeals claiming error in an instruction that he had the burden of establishing the defense by a preponderance of the evidence. A second ground for appeal; namely, that he was deprived of the effective assistance of counsel at the sentencing hearing, does not raise questions whose discussion merits publication.

[937]

1. Instruction on the Affirmative Defense

The defense of necessity which justifies escape in order to evade forcible sexual attack or serious bodily injury in the immediate future was carved out in

People

Lovercamp

(1974) 43 Cal.App.3d 823 [118 Cal.Rptr. 110, 69 A.L.R.3d 668] as a matter of public policy and out of regard for the court’s own dignity and in the exercise of its duty to formulate and apply proper standards for judicial enforcement of the criminal law. The very limited circumstances under which the defense is available were clearly spelled out in

Lovercamp

and need not be repeated here.

People

Condley

(1977) 69 Cal.App.3d 999, 1008-1009 [138 Cal.Rptr. 515], cert den. (1977) 434 U.S. 988 [54 L.Ed.2d 483, 98 S.Ct. 619] held that the defendant has the burden of establishing the defense of necessity by a preponderance of the evidence. To the same effect, see generally

People

Tewksbury

(1976) 15 Cal.3d 953 [127 Cal.Rptr. 135, 544 P.2d 1335]. Defendant does not deny that the jury was correctly instructed in accordance with the rules laid down in

People v. Waters

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BRAUER, J.

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