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C.A. Won’t Decide Whether ‘Necessity’ Defense in Escape Case Applies to Protection of Third Party
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal—faced with the question of whether “necessity” is a defense to a charge of escape from custody by a felon when the motivating circumstance is to save a third party from harm—yesterday answered that it might be, but a definitive answer would have to await a case with a stronger need to provide protection than presented by the appellant.
The unpublished opinion by Justice Martin N. Buchanan upholds the conviction of Robert Walter Sarnie for a violation of Penal Code §4532(b)(1) based on his escape from a work furlough facility. His proffered excuse was that he had learned his son, 13, “was essentially unattended, unsupervised” in a home “surrounded by drug addicts and criminals,” where there had been a gun fight and a stabbing.
San Diego Superior Court Judge Laura H. Parsky granted the prosecution’s in limine motion to exclude evidence of necessity and declined to give the CALCRIM instruction on that defense because it makes no reference to protection of third parties.
Gardner’s Opinion
The prosecution, in maintaining that no such defense exists, pointed to the 1974 decision by Div. Three of the Fourth District Court of Appeal. The opinion reversed a conviction for escape by an inmate who had been threatened with lesbian attacks.
Presiding Justice Robert Gardner wrote:
“[R]ather early in the legal history of the offense of escape, it became clear that all departures from lawful custody were not necessarily escapes or, to put it more accurately, there was a possible defense to an escape charge, to wit, necessity. In 1 Hale P.C. 611 (1736), it was written that if a prison caught fire and a prisoner departed to save his life, the necessity to save his life ‘excuseth the felony.’ So, too, we may assume that a prisoner with his back to the wall, facing a gang of fellow inmates approaching him with drawn knives, who are making it very clear that they intend to kill him, might be expected to go over the wall rather than remain and be a martyr to the principle of prison discipline.
“However, the doctrine of necessity to ‘excuseth the felony’ carried with it the seeds of mischief. It takes little imagination to conjure stories which could be used to indicate that to the subjective belief of the prisoner conditions in prison are such that escape becomes a necessity. Inevitably, severe limitations were affixed to this defense and the general rule evolved that intolerable living conditions in prison afforded no justification for escape.”
Five Requisites
The jurist declared:
“[W]e hold that the proper rule is that a limited defense of necessity is available if the following conditions exist: (1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
“(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
“(3) There is no time or opportunity to resort to the courts,
“(4) There is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape; and
“(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.”
Buchanan’s Decision
Buchanan said in yesterday’s decision:
“Neither Lovercamp nor any other California case has decided whether the defense of necessity to an escape charge could ever apply to the protection of a third party. Without deciding the question ourselves, we will assume that it could. But even indulging this assumption, we see no logical reason why the strict requirements of Lovercamp would not otherwise apply.”
He wrote that there had been no specific threat against Sarnie’s son, no showing that a report to authorities would have been ineffective, and no proof that the defendant could not have received emergency action from the courts.
“For these reasons, we conclude the trial court correctly ruled Sarnie’s offer of proof was insufficient to support a defense of necessity to protect a third party,” the justice said. “As a result, the trial court did not commit any error in refusing to instruct on it.”
He continued:
“Moreover, the court did not commit any error in excluding evidence of this theory of necessity. A court may exclude evidence offered in support of a necessity defense as irrelevant…and unduly prejudicial…if it concludes after a preliminary hearing, offer of proof, or similar procedure that the proffered evidence is legally insufficient to establish the elements of the defense even if accepted as true.”
Sarnie was sentenced to 16 months incarceration based on the escape, to be served consecutively to three other sentences.
The case is People v. Sarnie, D084646.
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