People v. McKinney

Opinion

PUGLIA, P. J.

Defendant appeals from a judgment of conviction after a jury found him guilty of assault with a deadly weapon by a prisoner serving a sentence less than life (Pen. Code, § 4501). He contends the trial court erred by excluding testimony regarding duress. We shall affirm the judgment.

Defendant, incarcerated in the California Correctional Facility in Susan-ville, struck fellow inmate Gerald Bean on the back of the head with a ball-peen hammer. At the time of the incident both inmates were students in a metal shop class. Defendant struck Bean from behind while Bean was receiving individual instruction from the shop teacher at a worktable.

During trial, the prosecutor moved for an order to exclude any testimony regarding a defense of duress. In opposition to the motion, defendant offered to prove: (1) Bean had previously threatened him with a ball-peen hammer and later attacked him, (2) other inmates threatened to kill defendant if he failed to “settle the problem with” Bean or if he sought protective custody, (3) defendant had been warned that Bean planned to attack him with a “shank” concealed in the metal shop, and (4) defendant reported to prison authorities that Bean attacked him, but the authorities failed to do anything about it. The trial court refused to let defendant put on the duress defense because defendant did not offer to show that he had sought protective custody or reported to prison authorities the threats by other inmates or the rumor of the concealed shank.

Defendant contends that the trial court erred by disallowing his defense of “duress.” Defendant’s offer of proof raised two distinct defenses: the

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statutory defense of duress and the common law defense of necessity. We shall conclude that defendant’s offer failed to establish either defense.

Necessity Defense

Insofar as defendant offered to prove that he assaulted Bean in response to Bean’s threats and the rumor of a hidden shank, defendant attempted to present a necessity defense, “[T]he defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.”