Necessity as a Legal Defense under California Criminal Law

The legal defense of necessity allows someone accused of a crime to avoid being found guilty if they can show that they had a sufficiently good reason for committing the crime.1

The classic example of what the necessity defense means is this:

Adam destroys a dam to prevent more valuable property from being flooded.2 Destroying the dam was undeniably a crime. But Adam is not guilty because he reasonably believed that it was still the right thing to do–or the "lesser of two evils."3

A more entertaining illustration of the necessity defense comes from a scene in the 1964 comedy film Dr. Strangelove. An army officer, played by Peter Sellers needs change to make a pay phone call that will prevent a nuclear war. So he orders another officer to shoot a vending machine to get to the change inside. This is a crime ... but the necessity defense would probably excuse it, because it was clearly the lesser of two evils.

The necessity defense can apply to a large number of crimes in a wide range of circumstances. Unlike "mitigating circumstances," which are generally considered only in sentencing hearings after you have already been found guilty, a successful defense of necessity means that you will be acquitted of the charge(s) entirely.4

But that doesn't mean that necessity is an easy defense to assert. A criminal defendant has to show that six things–or "elements"–are true. He also needs to convince the jury that it's more likely than not that his version of events is true.5

Also, it can be difficult to assert the necessity defense if you plan to plead "not guilty" for other reasons. To argue necessity, you may need to admit that you committed the crime (while also arguing that you had a good reason for doing so). People sometimes say "guilty with an explanation." Depending on the facts of your case, it could be inconsistent to argue this while also arguing that you did not commit the crime.

In this article, our California criminal defense attorneys6 explain the legal defense of necessity under California law by addressing the following:

1. What do I have to show to assert the legal defense of necessity?

1.1. Preventing significant bodily harm or evil

1.2. No adequate legal alternative

1.3. Act did not create a greater danger

1.4. Actual belief that act was necessary

1.5. Reasonable to believe act was necessary

1.6. You did not substantially contribute to the emergency

2. What else do I need to know about the
necessity defense?

2.1. Burden of proof

2.2. Inconsistency with other defenses

2.3. Public policy issues

2.4. Prison inmates and the necessity defense

3. Necessity compared to duress

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Legal Defenses; Duress or Threats as a Legal Defense under California Law; Prison and Jail Abuse in California; California's "Felon with a Firearm" Law; California DUI Defense Attorneys; California's Vehicular Manslaughter Laws; California's Medical Marijuana Laws; Health & Safety Code Section 11358 HS Cultivation of Marijuana Laws in California; Health & Safety Code 11357 HS Possession of Marijuana; and Sentencing Hearings in California Criminal Law.

1. What do I have to show to assert the legal defense of necessity?

1.1. Preventing significant bodily harm or evil

The first thing you have to show to assert the necessity defense is that you committed a crime 1) in an emergency, and 2) in order to prevent "significant bodily harm or evil" to either yourself or someone else.7

The dictionary definition of an "emergency" is an unforeseen set of circumstances requiring immediate action. So the necessity defense will only be effective if you committed a crime in a situation that was unexpected, where you needed to act fast.

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(But, unlike with the legal defense of duress, which we discuss more below, you don't have to have acted so quickly that you didn't have time to consider your options.8)

The "significant bodily harm or evil" requirement means that you need to have acted to prevent a fairly serious harm, usually death or injury to you or someone else. But someone's life doesn't actually have to be in danger.

Here are some examples of types of harm that may be significant enough to support the necessity defense:

  • Aggravated physical attack of a prison inmate by other inmates;9
  • Sexual assault of a prison inmate by other inmates;10
  • Sleep deprivation.11

And here are some examples of harms that are not significant enough to allow you to assert the defense of necessity:

  • Financial hardship12; and
  • Psychological harm as a result of being a member of a cult.13

1.2. No adequate legal alternative

For the necessity defense, you also need to show that you had no adequate legal alternative to committing the crime.14 Usually a defendant will have to show that he or she couldn't have prevented the harm from occurring by just calling the police.

When a defendant is unable to assert the defense, it's often because of this requirement. The California courts have taken a pretty tough line on what you have to do to show that you had no adequate legal alternative. Here are some examples drawn from actual cases:

    • Happy is an 18-year-old methamphetamine addict. Her friend Lemont has raped, threatened, and beaten her. He and another friend drive her around and force her to use a broken gun to commit armed robbery at several stores and restaurants while they wait in the car. Lemont hits and threatens Happy when she tries to object.

      But Happy can't avoid guilt because of the necessity defense. Because Lemont and his friend stayed in the car, she could have asked the store clerks she was robbing to call the police instead of carrying out the robberies. Thus, she had an adequate legal alternative. 15

  • Wayne is staying at someone else's house with two small children. While watching TV with the two children, he sees a gun on the floor. He picks it up to move it to a place where the older child won't be able to reach it. In doing so, he accidentally fires the gun and shoots the younger child. Because Wayne is a convicted felon, he is charged with being a felon with a firearm.

    Wayne cannot assert the necessity defense. He had an adequate legal alternative–taking the children out of the room where the gun was and asking another adult who was in the house to move it for him. 16
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  • Ron thinks his girlfriend is having a miscarriage. He leaves her at home, gets on his motorcycle, and drives like a crazy person to try to go get help. He is charged with reckless driving. The legal defense of necessity will not help him because he had the legal alternative of calling an ambulance.17

But in all of the above examples, the defendants probably would have had a better chance at the necessity defense if the facts had been just slightly different.

For example, in Wayne's case, if the older child had been actively reaching for the gun, he probably could have argued that he had no legal alternative to moving it himself.18

Similarly, in Ron's case, the court made clear that a medical emergency can justify a necessity defense against charges of reckless driving.19 Ron had the option of calling an ambulance...but if a passenger in your car has a heart attack while you are driving, and you drive recklessly to get him or her to a nearby hospital because calling an ambulance from your car isn't an option, the necessity defense might be available to you.

1.3. Act did not create a greater danger

The defense of necessity also requires that you acted in a way that did not create a greater danger than the one you were trying to prevent.20

This requirement is fairly straightforward. Here's an example of how it might work:

Raquel lives alone. She is out having drinks with friends when she gets a call from a neighbor who thinks there are burglars in her house. Even though Raquel is intoxicated, she jumps into her car and drives recklessly toward her home. Before she gets there she gets into an accident with another car, severely injuring the driver.

Raquel probably can't fight a charge of California DUI with the necessity defense. The harm she was trying to prevent was loss of the personal property in her house. But her actions in driving recklessly and under the influence created a greater danger–the danger of injury to herself or a third party.

Here's another example, this one drawn from an actual case:

Joe is angry at his neighbor Matt because Matt has been selling methamphetamine to Joe's girlfriend. One day Joe can't find his girlfriend and believes she is off using meth supplied by Matt, possibly endangering her life. Joe goes over to Matt's house and pistol-whips him.

Matt can NOT defend himself against assault charges with the necessity defense . . . because the danger he created by using violence against Joe is greater than the danger of his girlfriend using drugs.21

1.4. Actual belief that act was necessary

If you committed a crime in order to prevent something worse from happening, you can assert the necessity defense...but only if you actually believed at the time that it was necessary to do what you did.22

But what if new information becomes available after the fact . . . and, in hindsight, it is clear that you didn't need to commit the crime to prevent the harm? That doesn't mean that you can't rely on the necessity defense . . . as long as, with the information you had available at the time, you honestly believed that it was necessary.  23

For example:

Carrie, Miranda, and Samantha go fishing together in a remote location. Carrie and Miranda drink a large amount of beer. Samantha, who is seven months pregnant, is their designated driver for the trip home. But then Samantha goes into labor. Their cell phones are not working in that location. Carrie is quite drunk, but she drives Samantha to the nearest hospital because she thinks she has no choice.

Later, they find out there was a ranger station where they could have called for help only a few hundred feet from where they were fishing. But they did not know about it at the time.

If Carrie is charged with DUI, she can assert the legal defense of necessity even though there was a ranger station nearby. She didn't know about it when the emergency happened, and she honestly believed she had no choice but to drive.

1.5. Reasonable to believe act was necessary

Not only do you have to have honestly believed that you needed commit a crime to prevent something worse from happening - that belief also has to have been reasonable.24

Again, you don't have to have actually been right that the crime was necessary, as long as the jury thinks a reasonable person could have believed that it was.25

So let's return to our last example. Let's say Carrie actually does know there's a ranger station nearby because there are signs for it everywhere. But she has a phobia of forest rangers and thinks they will attack her if she takes Samantha to the station for help. It probably wasn't reasonable for her to believe that driving drunk was necessary to prevent a greater harm.

1.6. You did not substantially contribute to the emergency

Finally, if you want to assert the legal defense of necessity, you cannot have played a substantial part in creating the emergency that made the crime necessary.26

This makes sense. The reason courts created the necessity defense in the first place is to encourage people to do whatever they need to in order to solve a severe problem, even if it means committing a crime.27 But they don't want to encourage people to behave in ways that create a severe problem in the first place.28

Here are some examples of cases where the California courts denied the necessity defense because of the defendant's role in creating the emergency:

    • Wendy, who is from Los Angeles, drives to Tijuana with several friends. They all get very drunk there and then get into Wendy's truck to go back to Los Angeles. Wendy asks one of her friends to drive her car home, but he falls asleep while driving. So Wendy, who is very drunk herself, has to do the driving. She ends up causing a severe accident that kills one of her friends.

      Wendy can't defend herself against charges of DUI and vehicular manslaughter with the necessity defense. She created the emergency by asking someone who had been drinking heavily to drive her truck.29

  • A mining company operates a holding pond containing water that was contaminated by one of its mines. During a period of heavy rainfall, the pond is in danger of overflowing. So the company pumps contaminated water out of the pond into a creek.

    The company is criminally charged for creating an environmental harm. The company cannot assert the necessity defense–it created the emergency itself by storing the contaminated water in a pond that was too small.30
2. What else do I need to know about the
necessity defense?

2.1. Burden of proof

To avoid criminal liability because of the legal defense of necessity, you need to show all six of the elements we just described. You need to show each of those elements by a "preponderance of the evidence."31

This means that the jury needs to feel that there is at least a fifty percent (50%) chance that your story is true.32 If the jury honestly cannot decide whose version of the story to believe (yours or the prosecution's), or if the jury thinks the prosecution's story is even just a little bit more believable, then you will lose on this defense.

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This is a higher burden of proof than a criminal defendant normally has to meet. Normally, in criminal cases, the prosecution has to prove its case "beyond a reasonable doubt."33 This means that all you have to do is raise a reasonable doubt that the prosecution's story is true, and you cannot be convicted.

But with the necessity defense, you need to do more than that. When the case turns on the necessity defense, you can be convicted even if the jury doubts the prosecution's story is true...as long they think it's more likely to be true than yours is.

2.2. Inconsistency with other defenses

By arguing the legal defense of necessity, you are arguing that there was a good reason for you to commit the crime. Of course, if you make this argument, you are probably admitting that you did commit the crime in the first place.34

According to San Jose criminal defense attorney Cameron Bowman35,

"It can be hard to determine whether it makes sense for a defendant to assert the necessity defense. By arguing necessity, you pretty much admit that you did commit the crime, and you focus your case on showing that you had a good reason for doing it. If you also intend to argue that you didn't commit the crime, then you might end up making two different, and inconsistent, arguments."

For this reason, it's important to have a skilled and experienced California criminal defense attorney on your side if you are thinking of arguing the necessity defense in your criminal case. He or she can help you determine whether that defense makes sense in light of all the evidence available in your case.

2.3. Public policy issues

Sometimes defendants will try to use the necessity defense for crimes that involve high-profile political issues.

Abortion Protest Cases

Sometimes defendants will use the necessity defense against charges for crimes that were motivated by their opposition to abortion.36 The idea is that they committed the crime to prevent abortions (which they believe to be murder) from taking place.

But California courts will not allow the necessity defense in these cases. Because abortion is considered a constitutional right, you cannot justify committing a crime by arguing that you were trying to stop abortions from occurring.37

Marijuana Cases

California's medical marijuana laws also affect when you can use the necessity defense. Some defendants have tried to fight charges related to possession of marijuana or cultivation of marijuana by making a "medical necessity" argument. This means that they argued that they needed to use marijuana to treat a medical condition.38

But California voters created a legal medical marijuana program with the passage of the Compassionate Use Act (Proposition 215) in 1996. Because of this, courts have said that you can't rely on the medical necessity defense for marijuana charges...unless you cultivated and possessed marijuana in a way that complied with that law.39

The court's reasoning here is that the necessity defense is a public policy decision, but the Compassionate Use Act is also a public policy decision that trumps the necessity defense.40 If you don't meet the requirements of that act, you can't use the necessity defense to justify your use of marijuana for medical reasons.

2.4. Prison inmates and the necessity defense

The legal defense of necessity often comes up in cases involving crimes committed by prison inmates while they were in prison.41

If you think about this, it makes sense. Prison and jail abuse are widespread in the California corrections system. Prisoners abuse one another, and guards often either don't care or are abusive themselves. So it is common for prisoners to be forced to commit crimes in order to protect themselves or someone else from great harm.

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Because of this, California courts have come up with a few specific rules involving the necessity defense and prisoner crimes:

    • The necessity defense CAN apply to the crime of escaping from prison. But the defendant has to show that all of the following are true:

      a. They were faced with a specific threat of death, sexual attack, or substantial bodily injury in the immediate future;

      b. There was no time to complain to the guards, or there was a history of complaints getting them nowhere;

      c. There was no time or opportunity to get help from the courts;

      d. There was no evidence that they used force or violence toward prison workers or any innocent third parties in their escape; AND

      e. They have to turn themselves in to the authorities immediately once they are safe from the threat.42
  • BUT, the necessity defense does NOT apply to prisoners charged with assault.43 The reasoning behind this rule is that courts don't want to encourage any form of violence in the prison setting.44
3. The necessity defense compared to the duress defense

The California legal defense of duress or threats is related to but distinct from the legal defense of necessity.45 It can be difficult to understand when to apply one instead of the other.

You can escape liability through the California legal defense of duress or threats if you can prove the following:

  1. Someone threatened or menaced you;
  2. Someone demanded or requested that you commit a crime to avoid having the threat carried out; and
  3. You reasonably believed that your or someone else's life would be in immediate danger if you didn't commit the crime.46

The major differences between duress and necessity are:

  • The necessity defense represents a public policy decision not to punish someone for committing a crime that ended up preventing a greater harm from occurring. You can assert the necessity defense even if you fully intended to commit the crime and knew exactly what you were doing. But the duress defense means that you lacked the criminal intent necessary to be guilty of a crime.47
  • You can assert the necessity defense even if you had time to think it over before you committed the crime. But for the defense of duress to apply, you have to have been trying to avoid an immediate harm.48
  • The defendant has to prove all the elements of the necessity defense by a preponderance of the evidence. But with the duress defense, the defendant only needs to raise a reasonable doubt about the elements of the defense.49

The same sets of facts could support either the duress or the necessity defense, or both.50

Call us for help...
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If you or loved one is in need of help with necessity as a legal defense and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, we have law offices located in Reno and Las Vegas. For information relating to Nevada's legal defenses, we invite you to contact a Nevada criminal defense attorney at one of our local Nevada law offices.51

Legal References:

1 See, e.g., Judicial Council of California Criminal Jury Instructions ("CALCRIM") 3403 - Necessity. ("The defendant is not guilty of <insert crime[s] > if (he/she) acted because of legal necessity.")

2 United States v. Bailey, 444 U.S. 394, 410 (1980).

3 CALCRIM 3403 - Necessity. ("[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.")

4 Same. ("The defendant is not guilty of <insert crime[s] > if (he/she) acted because of legal necessity.")

5 Same. ("In order to establish this defense, the defendant must prove that:1 (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else); 2 (He/She) had no adequate legal alternative; 3 The defendant's acts did not create a greater danger than the one avoided; 4 When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; 5 A reasonable person would also have believed that the act was necessary under the circumstances; AND 6 The defendant did not substantially contribute to the emergency. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.")

6 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

7 CALCRIM 3403 - Necessity. ("In order to establish this defense, the defendant must prove that:1 (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else; . . . .")

8 People v. Heath, (1989) 207 Cal.App.3d 892, 901. ("Unlike duress, the threatened harm is in the immediate future, which contemplates the defendant having time to balance alternative courses of conduct.")

9 People v. Saavedra, (2007) 156 Cal.App.4th 561, 567.

10 People v. Lovercamp, (1974) 43 Cal.App.3d 823, 825.

11 In re Eichorn, (1998) 69 Cal.App.4th 382, 389-90. ("At a minimum, reasonable minds could differ whether defendant acted to prevent a 'significant evil.' Sleep is a physiological need, not an option for humans. It is common knowledge that loss of sleep produces a host of physical and mental problems (mood irritability, energy drain and low motivation, slow reaction time, inability to concentrate and process information). Certainly, no one would suggest that a groggy truck driver who stops his rig on the side of a road rather than risk falling asleep at the wheel does not act to prevent a significant evil, i.e., harm to himself and others. Indeed, Judge Margines had denied Eichorn's request for funds to hire an expert to testify about the harmful effects of sleep loss: 'I mean it doesn't take an expert to tell us that, to convince a person, that there are ill effects that arise from sleep [deprivation].'")

12 People v. Carrera, (2001) Cal.App.4th - 2001 WL 1356993, at 5 (holding that a defendant's need for money will not justify the crime of robbery).

13 People v. Patrick, (1981) 126 Cal.App.3d 952, 961. ("Secondly, we note some discomfort with Patrick's failure to present any evidence demonstrating a danger of imminent physical harm to Roberta. The offer of proof focused on psychological harm, personality change and unorthodox morality. We do not dispute the fact that individuals may suffer harm of other than a physical nature. But as noted previously, the problem with such an approach here lies in attempting to find an objective definition of 'psychological harm' where the victim consents to being 'harmed.'") (internal citations omitted)

14 CALCRIM 3403 - Necessity. ("In order to establish this defense, the defendant must prove that: . . . 2 (He/She) had no adequate legal alternative; . . . .")

15 People v. Kearns, (1997) 55 Cal.App.4th 1128, 1135. ("Most notably, Kearns did not establish the absence of a reasonable legal alternative to committing the crimes and clearly at least one such alternative existed, to wit, asking the victim to call police rather than carrying out the robbery.")

16 People v. Pepper, (1996) 41 Cal.App.4th 1029, 1036. ("Moreover, even if such potential harm existed, an adequate alternative was available to address the problem; defendant could have taken the children from the room and then had his sister move the weapon to a place of safety.")

17 People v. Morris, (1986) 191 Cal.App.3d 8, 11. ("In the present case, rather than '... driving like a crazy man...'with the unacceptable risk of human carnage and property damage strewn in his wake, appellant had a legal alternative to violating the law. That is to say, in this modern age of telecommunication, appellant, by the simple use of a telephone, could have summoned police, fire, rescue, and medical aid to the location where he believed his girlfriend was having a miscarriage. Had appellant done so, citizens oblivious to his girlfriend's plight would have been alerted to the responding emergency vehicles with their flashing lights and blaring sirens. Public policy and common sense compel the conclusion that this legal, reasonable and viable alternative to reckless driving eviscerates the necessity defense here tendered.")

18 People v. Pepper, (1996) 41 Cal.App.4th 1029, 1036. ("Nothing in the evidence suggests [the child] was attempting to touch the rifle or even was aware of its presence under the bed.")

19 People v. Morris, (1986) 191 Cal.App.3d 8, 11. ("However, we share the apparent concern of Mr. Witkin that a driver, confronted with his or presumably a passenger's medical emergency, should be permitted the opportunity to defend a reckless driving charge arising out of a journey to the hospital on the theory of 'necessity.' A citizen cannot be reasonably expected to engage in self-sacrifice and bleed to death at the altar of the Vehicle Code by observing the basic speed law and other rules of the road.")

20 CALCRIM 3403 - Necessity. ("In order to establish this defense, the defendant must prove that: . . . 3 The defendant's acts did not create a greater danger than the one avoided; . . . .")

21 People v. Miceli, (2002) 104 Cal.App.4th 256, 268.

22 CALCRIM 3403 - Necessity.  ("In order to establish this defense, the defendant must prove that: . . . 4 When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; . . . .")

23 People v. Pena, (1983) 149 Cal.App.3d Supp. 14, 27. ("We observe that the requirement that appellant's fear be an objectively reasonable one does not require that appellant be in fact correct in his assessment of the situation. Rather, as in any situation where a defendant claims as his defense that the charged acts were justified as having been undertaken in response to some emergency circumstance (i.e., self-defense), the defendant may rely on what he reasonably believes to be true.")

24 CALCRIM 3403 - Necessity. ("In order to establish this defense, the defendant must prove that: . . . 5 A reasonable person would also have believed that the act was necessary under the circumstances; . . . .")

25 People v. Pena, (1983) 149 Cal.App.3d Supp. 14, 27. ("We observe that the requirement that appellant's fear be an objectively reasonable one does not require that appellant be in fact correct in his assessment of the situation. Rather, as in any situation where a defendant claims as his defense that the charged acts were justified as having been undertaken in response to some emergency circumstance (i.e., self-defense), the defendant may rely on what he reasonably believes to be true.")

26 CALCRIM 3403 - Necessity. ("In order to establish this defense, the defendant must prove that: . . . 6 The defendant did not substantially contribute to the emergency.")

27 People v. Heath, (1989) 207 Cal.App.3d 892, 901 (necessity defense represents "represents a public policy decision not to punish such an individual despite proof of the crime").

28 People v. Verlinde, (2002) 100 Cal.App.4th 1146, 1165. ("Although we recognize the public policy furthered by allowing the defense of necessity to be raised in appropriate cases to avoid criminal liability, the defense should not be invoked when it is the culpable conduct of the actor that creates or contributes to the atmosphere of necessity.")

29 Same. ("Moreover, to invoke the necessity defense, Verlinde also bore the burden of presenting sufficient evidence from which a jury reasonably could conclude that she did not substantially contribute to the creation of the emergency. Here, the evidence established that an intoxicated Verlinde created the emergency by allowing four persons to be packed into the cab of her truck after a night of drinking and then sharing the driving with one of the individuals who had been drinking. As Perez testified everyone in both parties was too drunk to drive. . . . Because Verlinde's own behavior substantially contributed to the emergency, the court properly refused to instruct the jury on the necessity defense.") (internal citations omitted.)

30 People v. Buena Vista Mines, Inc., (1998) 60 Cal.App.4th 1198, 1202.

31 CALCRIM 3403 - Necessity. ("The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.")

32 Same.

33 CALCRIM 220 - Reasonable Doubt. ("A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.")

34 See CALCRIM 3403, Bench Notes (Instructional Duty). ("When the court concludes that the [necessity] defense is supported by substantial evidence and is inconsistent with the defendant's theory of the case, however, it should ascertain whether defendant wishes instruction on this alternate theory.")

35 San Jose criminal defense attorney Cameron Bowman is a former Santa Clara County Deputy District Attorney with many years of criminal trial experience on cases ranging from DUIs to special circumstances murder.  Mr. Bowman represents clients in the Santa Clara County courts, the Contra Costa County courts, the San Francisco County courts, and the Alameda County courts, among other locations.

36 Scott Roeder, a Kansas man charged with killing an abortion provider, tried to assert the necessity defense. The Kansas judge did not allow him to do so. 'See "'Necessity Defense' Sinks in Abortion Case," CBSNews, Dec. 22, 2009.

37 People v. Garziano, (1991) 230 Cal.App.3d 241, 244. ("Appellants may not criminally interfere with the exercise of constitutional rights by others, and then escape punishment for their criminal conduct by asserting the defense of necessity. Those who choose to break the law under such circumstances because of firmly held beliefs must be prepared to suffer the consequences. A pregnant woman's decision to exercise her right under the Constitutions of the United States and of the State of California to terminate a pregnancy is not and cannot be held to be a 'significant evil.'")

38 See People v. Galambos, (2002) 104 Cal.App.4th 1147, 1160-61.

39 Same, at 1161. ("Proposition 215 represents a public policy decision. But it is one that is different and inconsistent with a medical necessity defense. The elements of the two public policies are in conflict. An unexpressed public policy should not be engrafted onto statutory language that expresses an inconsistent public policy.")

40 Same.

41 See, e.g., People v. Saavedra, (2007) 156 Cal.App.4th 561; People v. McKinney, (1986) 187 Cal.App.3d 583; People v. Velasquez, (1984) 158 Cal.App.3d 418; People v. Lovercamp, (1974) 43 Cal.App.3d 823.

42 People v. Lovercamp, (1974) 43 Cal.App.3d 823, 831-32.

43 People v. McKinney, (1986) 187 Cal.App.3d 583, 587. ("Violence justified in the name of preempting some future, necessarily speculative threat to life is the greater, not the lesser evil, particularly in the highly volatile environment of a prison institution. Accordingly, we hold the defense of necessity is unavailable to a prisoner, such as defendant here, who is charged with assault.")

44 Same. ("We share the view of the Velasquez court that the defense of necessity is inappropriate where it would encourage rather than deter violence.")

The court's reasoning in this case is pretty questionable. If the only way to prevent yourself from being murdered or brutally raped in prison is to assault another prisoner, then your violent act probably is justified, just like it would be if you were not in prison.

45 People v. Heath, (1989) 207 Cal.App.3d 892, 900-901 (comparing the duress and necessity defenses).

46 CALCRIM 3402 - Duress or threats. ("The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ [or] someone else's) life would be in immediate danger if (he/she) refused a demand or request to commit the crime.")

47 People v. Heath, (1989) 207 Cal.App.3d 892, 901 (necessity defense represents "represents a public policy decision not to punish such an individual despite proof of the crime").

48 See same.

49 See same.

50 See same, at 902. ("Appellant's own testimony presents sufficient justification to warrant instructions on both the duress and necessity defenses.")

51 Please feel free to contact our Nevada criminal defense attorney Michael Becker or attorney Neil Shouse for any questions relating to Nevada's criminal laws.

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