Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County. No. CRF30714, Eleanor Provost, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant David John Valencia of felony corporal injury to a spouse or cohabitant. He admitted suffering five felony convictions, two of which constituted strikes. The trial court sentenced Valencia to 25 years to life. Valencia appeals, contending (1) the trial court had a sua sponte duty to instruct on the defense of necessity; (2) defense counsel was ineffective for failing to request a necessity instruction; and (3) the trial court abused its discretion in denying his request to strike one of his strike convictions. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On the afternoon of September 13, 2009, people at or near La Bella Rosa Vineyards and Old Wards Ferry Road heard sounds of an argument emanating from a house trailer across the street from the vineyard. Valencia and his wife, Carrie Kobel, lived in the house trailer and people could hear them yelling and screaming. People also heard Kobel crying.
Kobel was then seen coming down her driveway, with Valencia following. One witness saw Valencia push Kobel, causing her to fall to the ground. Dennis Jackson, a neighbor, saw Valencia trying to punch Kobel with his fist five to 10 times; Valencia actually connected with a punch four times. Kobel was screaming for help.
Linda Peterson and her daughter, Crystal Moberg, ran to the middle of the street and called out, “What the heck is going on up there?” Kobel asked them to call the police; Valencia told them to mind their own business. Peterson told Moberg to go call the police.
Valencia crossed over to where Peterson was and began yelling and swearing at her. Jackson saw Peterson and Valencia within a foot of each other and heard a “heated exchange.” Jackson overheard Valencia tell Peterson it was none of her business and that he, Valencia, was trying to keep Kobel from driving. Jackson told Valencia his comments were “bullshit” based on what he, Jackson, had seen. After Jackson’s remark, Valencia became “very aggressive and intimidating” toward Jackson.
At approximately 4:30 p.m., Sheriff’s Deputy Daniel Newman arrived at the scene; Sheriff’s Deputy Samuel Egbert already was there. Newman noted that Kobel was speaking rapidly and appeared “shaken up, ” as if “something traumatic” had happened. Newman saw that Kobel had dried blood on her left temple and fresh blood from a laceration on the top of her head.
Kobel told Newman that she and Valencia had gotten into an argument when she went to move her truck in order to make room for friends coming over to park. Kobel’s driver’s license had been suspended due to a vehicle accident where she had been under the influence of alcohol. Valencia objected to her driving because the two of them had been drinking and he thought she was going to leave; Kobel told him she was not leaving, but was only moving the truck onto the driveway. When Kobel went to move the truck, Valencia hit her in the back of the head, maybe with his fists.
Egbert spoke to Valencia, who denied there had been a fight. Valencia said there was an argument, but no fight. Valencia said Kobel was intoxicated and was attempting to leave their property; he was only trying to stop her. Valencia denied hitting Kobel. Newman and Egbert saw injuries on Valencia’s knuckles that were consistent with having punched someone.
Valencia was charged with one count of violating Penal Code section 273.5, subdivision (a), corporal injury to a spouse or cohabitant. It also was alleged that he had suffered five felony convictions within the meaning of section 1203, subdivision (e)(4), and two of the convictions constituted strikes within the meaning of section 667, subdivisions (b) through (i).
All further statutory references are to the Penal Code unless otherwise noted.
The trial was bifurcated. At the trial on the underlying offense, Kobel testified that she recently had married Valencia before the altercation and that the two of them lived in the house trailer on Old Wards Ferry Road. Kobel admitted she and Valencia fought that day, but claimed she did not remember Valencia ever hitting her. Kobel claimed she did not remember telling Newman that Valencia hit her in the back of the head and did not remember telling hospital personnel that her husband struck her with his fists. Kobel remembered that she and Valencia had argued. She told Valencia specifically that she was only going to move her truck; they argued over her moving the vehicle.
Newman testified to what Kobel had told him. Kobel also told him that she feared for her life as a result of Valencia’s assault.
Kendall Ann Long testified she had been in a relationship with Valencia in 2000. One evening as they were walking down a street together, Valencia demanded that she go to her mother’s house and pick up her son. When she responded “No, ” Valencia looked her in the eye and hit her full force with his fist between her temple and ear. She suffered a ruptured eardrum from the assault.
Ellen Klein, a nurse practitioner, treated Kobel for the laceration on her head. Klein described the laceration as superficial; it was closed with staples. Klein also testified Kobel told her Valencia had hit her in the head with his fist.
The jury found Valencia guilty as charged. Valencia admitted the prior convictions. The trial court denied Valencia’s request to strike at least one of his strike convictions. Valencia was sentenced to a term of imprisonment of 25 years to life.
DISCUSSION
Valencia maintains the trial court had a sua sponte duty to instruct the jury on the defense of necessity and that failure to do so requires reversal. Alternatively, he claims defense counsel was ineffective for failing to request a necessity instruction. Finally, Valencia contends the trial court abused its discretion by refusing to strike at least one of his two strike convictions.
I. Necessity Instruction
Valencia’s contention that a necessity instruction should have been given is twofold: (1) the trial court had a sua sponte duty to instruct on necessity, and (2) defense counsel was ineffective for failing to request a necessity instruction. Neither contention prevails because the evidence did not support a necessity instruction.
A trial court has a sua sponte duty to instruct on a defense if it is supported by substantial evidence and if it is not inconsistent with the defendant’s theory of the case. (People v. Boyer (2006) 38 Cal.4th 412, 468-469.) A trial court is not required to instruct on theories that lack substantial evidentiary support. (People v. Miceli (2002) 104 Cal.App.4th 256, 267.) The defendant has the burden of proving the defense of necessity by a preponderance of the evidence. (People v. Heath (1989) 207 Cal.App.3d 892, 901 (Heath).)
In order 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. [Citations.]” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 (Pepper).) “Necessity does not negate any element of the crime, but represents a public policy decision not to punish such an individual despite proof of the crime. [Citations.]” (Heath, supra, 207 Cal.App.3d at p. 901.)
The defense of necessity, in contrast to the defense of duress, has traditionally covered situations where physical forces beyond the defendant’s control rendered illegal conduct the lesser of two evils. (Heath, supra, 207 Cal.App.3d at p. 899.) “The defense of necessity generally recognizes that ‘“the harm or evil sought to be avoided by [the defendant’s] conduct is greater than that sought to be prevented by the law defining the offense charged.”’ [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100, brackets in original (Coffman and Marlow).)
The necessity defense is available to a defendant if the actions he or she intended to engage in, and did engage in, were unlawful. (Coffman and Marlow, supra, 34 Cal.4th at p. 100.) The situation presented to the defendant must be of an emergency nature, threatening physical harm, and lacking an alternative legal course of action. (People v. Weber (1984) 162 Cal.App.3d Supp. 1, 5.)
Here, a necessity instruction was not warranted for three reasons: (1) Valencia denied engaging in any illegal conduct, specifically, he denied hitting Kobel; (2) Valencia had adequate options available to avoid the perceived harm of allowing Kobel to drive drunk; and (3) the belief that Kobel was going to drive away while drunk was not reasonable.
Valencia maintained at trial that he did not hit Kobel; they merely argued. Valencia did not contend he was forced to engage in an illegal act in order to prevent a greater wrong; an argument is not an illegal act. Valencia’s claim, if believed by the jury, was insufficient as a matter of law to establish the elements of the defense of necessity; there was no illegal act. Therefore, the instruction was not warranted. (See Pepper, supra, 41 Cal.App.4th at p. 1036.)
More importantly, Valencia had numerous legal options available to him to prevent Kobel from driving while intoxicated, which precluded a defense of necessity. (Pepper, supra, 41 Cal.App.4th at p. 1035.) Valencia could have (1) taken the keys from Kobel, (2) offered to move the truck himself, (3) disabled the truck, or (4) called 911 if Kobel insisted on driving away. Any one of these simple legal actions would have prevented the perceived harm Valencia claimed he was trying to prevent -- that of having Kobel drive while drunk.
Moreover, virtually the only evidence that Kobel was going to drive away in the truck while intoxicated came from the self-serving statements of Valencia. Kobel told Newman she was moving the truck only to make room for friends to park and that she had told Valencia she was not leaving the property. Kobel also testified at trial that she specifically told Valencia she was only moving the truck, not driving away. Valencia’s claim of trying to avoid harm to the public was not reasonable under the circumstances.
For the same reasons the trial court was not required sua sponte to instruct on the defense of necessity, defense counsel was not ineffective for failing to request a necessity instruction. The evidence was insufficient to support such an instruction. As the appellate court stated in People v. Torrez (1995) 31 Cal.App.4th 1084, 1091, “defense counsel is not required to make futile motions or to indulge in idle acts to appear competent.”
II. Abuse of Discretion in Sentencing
Valencia’s final contention is that the trial court abused its discretion in refusing to dismiss at least one of his two strike convictions, resulting in the imposition of a “grossly excessive sentence, ” in violation of his constitutional rights.
Factual Summary
The probation office prepared a report that had a recommendation for a three strikes sentence; the report, however, also included an alternative sentencing recommendation in case the trial court exercised its discretion to strike the strike convictions. The defense asked that one or both strike convictions be stricken by the trial court; the People opposed the request.
The record established that Valencia had suffered five felony convictions: (1) a 1995 conviction for kidnapping, (2) a 1996 conviction for criminal threats, (3) a 1996 conviction for resisting an executive officer, (4) a 1996 conviction for driving under the influence, and (5) a 2000 conviction for corporal injury to a spouse or cohabitant. In addition to the felony convictions, Valencia had 11 misdemeanor convictions. Valencia had served three prison terms and was on probation at the time of the altercation with Kobel. Valencia had a history of drug and alcohol abuse and had participated in a 52-week counseling session to address domestic violence.
The trial court noted that Valencia had been in an alcohol program, a 52-week domestic violence program, had nine grants of probation, and was on probation at the time of the altercation with Kobel. The trial court noted the lengthy history of criminal offenses committed by Valencia and the similarity of the attack on Kobel to the earlier domestic violence conviction and attack on Long. The trial court stated that Valencia was “a violent man. And I don’t dare leave him out.” The trial court described Valencia as “a poster child for three strikes.” The trial court thereafter imposed a term of 25 years to life.
Analysis
A trial court may exercise its discretion under section 1385 to strike a felony conviction when it deems it in the furtherance of justice to do so. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) Review of a trial court’s decision whether or not to strike a prior under section 1385, like most other discretionary trial court rulings, is limited in scope and is deferential. (People v. Carmony (2004) 33 Cal.4th 367, 374; People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Appellate courts will disturb the trial court’s exercise of discretion only upon a clear showing of abuse that results in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)
The appellant bears the burden of establishing that the trial court’s decision is unreasonable. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) “A trial court abuses its discretion when it dismisses a prior conviction solely to accommodate judicial convenience, due to court congestion, because a defendant pleads guilty, or conversely refuses to dismiss because of personal antipathy for the defendant while ‘ignoring “defendant’s background, ” “the nature of the present offenses, ” and other “individualized considerations.”’ [Citation.]” (People v. Carrasco (2008) 163 Cal.App.4th 978, 992-993 (Carassco).)
Here, there was no abuse of discretion. The trial court based its discretionary sentencing decision on appropriate factors, including (1) Valencia’s lengthy criminal history; (2) his status as a probationer when he committed the current offense; and (3) Valencia’s failure to remain sober and refrain from domestic violence, despite prior treatment for alcohol abuse and domestic violence. The trial court’s decision was based on individualized considerations specific to Valencia. (Carrasco, supra, 163 Cal.App.4th at pp. 992-993.)
We also reject Valencia’s contention that a three strikes sentence of 25 years to life is disproportionate to the offense and a violation of his constitutional rights. The purpose of the three strikes law is not to subject a criminal defendant to a life sentence merely on the basis of the latest offense. Rather, the purpose is to punish recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Habitual offender statutes have withstood constitutional scrutiny based on assertions of cruel and unusual punishment, as well as claims of a disproportionate sentence. (See People v. Ayon (1996) 46 Cal.App.4th 385, 398-400, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 593-595, 600, fn. 10.)
The sentence imposed by the trial court was not an abuse of discretion and did not violate Valencia’s constitutional rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., FRANSON, J.