Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF005153, Edward D. Webster, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Deputy Attorney General, Gary W. Schons, Assistant Attorney General, and Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant Warren Paul Etnyre appeals from his conviction of violations of Vehicle Code sections 23152, subdivision (a) (count 1) and 23152, subdivision (b) (count 2).) He contends the trial court erred in instructing the jury with a modified version of CALCRIM No. 375 that undermined his defense of necessity. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
In the afternoon of September 16, 2006, a fire occurred in hills within the City of Beaumont. As a result of the fire, a roadblock was set up at the intersection of Cherry Valley and Calimesa Boulevards, and California Highway Patrol (CHP) Officer Nathan Wheelock was assigned to the site. At about 5:00 p.m., a Jeep Cherokee driven by defendant approached the roadblock and stopped, but defendant did not roll down his window. Officer Wheelock asked defendant where he was going, and defendant replied that he was going up the road, pointing toward Cherry Valley Boulevard. The officer told defendant the road was closed and he (defendant) had to make a left turn. Defendant drove forward a few feet, and the officer yelled at him to stop and ordered him to roll down his window. When defendant complied, the officer immediately smelled alcohol.
Officer Wheelock asked defendant where he was going, and defendant said he needed to “get home down the road.” The officer asked defendant whether he had been drinking, and defendant admitted having done so. Defendant told the officer he was coming from Redlands. The officer observed that defendant had red, watery, and bloodshot eyes, and his speech was slurred. Defendant also appeared lethargic, and his face seemed relaxed, typical of someone under the influence of alcohol.
Officer Wheelock asked defendant to step out of the car and asked him a series of questions to determine whether and when defendant had consumed alcohol. Defendant appeared calm and respectful, and he cooperated with the officer. However, defendant did not ask any question about the fire, did not exhibit any concern for his property, family members, or animals at the property, and did not ask about evacuating the property. In fact, he never mentioned having any family or property in the area.
Defendant told Officer Wheelock he had drunk two 12-ounce cans of beer in Redlands between 2:00 p.m. and 4:00 p.m. and had last eaten around noon. Officer Wheelock administered field sobriety tests, including the horizontal gaze nystagmus test, the Romberg test, the one-leg stand, and the finger count. As a result of defendant’s performance on those tests, Officer Wheelock arrested him. At the CHP station at 5:31 and 5:33 p.m., the officer administered breath tests to record defendant’s blood alcohol level. Defendant’s readings on the tests were.20 and.18 percent. Officer Wheelock testified, based on his observations of defendant, defendant’s performance on the field sobriety tests, and the results of the breath tests, that in his opinion, defendant was under the influence of alcoholic beverage. The officer denied that he had ever told defendant to shut up, and he denied that defendant had tried to explain where he was going.
A criminalist from the Department of Justice testified that the breath test had been administered by an accurate and reliable procedure. A person of defendant’s size and weight would have had to consume about 12 cans of beer for his blood alcohol to reach the measured levels, and his blood alcohol would have been higher had it been taken half an hour earlier.
B. Defense Evidence
Andrew Bennett, a battalion chief for the California Department of Forestry and Fire Protection, was the incident commander for the fire, known as the Orchard Fire, which ultimately burned 1,800 acres. In Bennett’s opinion, ranches along the north end of Cherry Valley Boulevard were in threat from the fire. Bennett did not order any evacuations, although he believed the operations section chief might have ordered some evacuations in the area. He was not concerned about homes in the center of Cherry Valley Boulevard “because of the agricultural type, the fuel types, the plowing that... already had occurred,... [and] because there were natural breaks.”
The Public Information Office (PIO) of the Department of Forestry and Fire Protection keeps the public informed about fires through information provided to local media. Bennett and fire personnel on the scene would continuously forward information to the PIO. In Bennett’s experience, persons in areas threatened by fires often approached fire fighters to ask for information or assistance or called 911. Persons who called 911 merely for information about fires and evacuations would be referred to the PIO telephone number. Firefighters did not evacuate animals or livestock, although organizations existed to help in protecting larger animals.
Defendant testified that he lived with his girlfriend on a 10-acre property on Cherry Valley Boulevard; his girlfriend’s 91-year-old grandfather lived in a separate home on the same property. In the afternoon of September 16, 2006, while defendant was working at home, he saw smoke moving in a westerly direction and later saw flames coming up a ridge. He lived at the bottom of a hill, and the fire was on the other side of the hill. He saw several fire trucks heading west on Cherry Valley Boulevard.
The grandfather still drove, and the grandfather’s car and defendant’s girlfriend’s truck were on the property, along with a golf cart and tractor. Defendant and his girlfriend tended protected bird species at the property and raised goats and pigs.
After defendant saw the flames, he panicked and went in his car to seek help and to talk to “some official.” Defendant did not consider going to the grandfather about the fire because the grandfather had lived through two previous fires on the property, and defendant believed he would not budge from the property. Defendant did not call 911 to inquire about the fire and possible evacuation because “common sense” told him he would not get any information by doing so. He did not think about calling the fire department for information, even though he had seen fire trucks in the area. Defendant drove down Hannon Road towards the fire so he could have a better view of the hills. He stopped and watched the fire for between 30 seconds and 20 minutes and then continued to drive down Hannon Road. The huge smoke and fire frightened him.
Defendant drove around various roads for between 15 and 30 minutes before arriving at the roadblock. He admitted he had been drinking throughout the day and he knew it was dangerous and illegal to drive under the influence, but in his view, those factors were outweighed by the potential danger from the fire and the need to obtain information about possible evacuation. Traffic was very light in that rural area, and he did not feel impaired in his driving.
Defendant testified that he did not roll down his window when he approached Officer Wheelock because of the smoke and wind, and also because he feared the officer would smell alcohol on his breath. Defendant claimed he had tried to ask Officer Wheelock about the fire, but the officer did not give him any opportunity to do so. Defendant testified that the officer might not have heard him, because it was noisy and helicopters were flying overhead. The officer repeatedly told defendant to shut up, and he “followed directions.”
Defendant admitted he had lied in telling Officer Wheelock he had drunk only two beers. He acknowledged he might have consumed 12 or more beers that day. He did not recall telling Officer Wheelock he was coming from Redlands. Defendant admitted he had been convicted of felony driving under the influence with injury in about 2000 and had pled guilty to another felony driving under the influence.
The jury found defendant guilty of violating Vehicle Code sections 23152, subdivision (a) (count 1) and 23152, subdivision (b) (count 2). The trial court found true that defendant had suffered two prior convictions for which he had served prison terms. (Pen. Code, §667.5, subd. (b).) The trial court sentenced him to the middle term of two years for count 1 and stayed the sentence for count 2 under Penal Code section 654. In addition, the trial court imposed a consecutive one-year enhancement term for each of the two prior convictions.
III. DISCUSSION
Defendant contends the trial court erred in instructing the jury with a modified version of CALCRIM No. 375 that undermined his defense that he had entertained a good faith belief that his actions were necessary to prevent a greater harm. Specifically, he contends the instruction undermined the element of objective reasonableness.
A. Analysis
The affirmative defense of necessity applies to prosecutions for driving while intoxicated. (People v. Pena (1983), 149 Cal.App.3d Supp. 14, 22-23.) To establish the defense, the defendant must prove by a preponderance of the evidence that he violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonably, and (6) under circumstances in which he did not significantly contribute to the emergency. (People v. Kearns (1997), 55 Cal.App.4th 1128, 1135 (Kearns).)
The trial court instructed the jury with CALCRIM No. 3403 as to the elements of the necessity defense. Over defense objection, the trial court also instructed the jury with a modified version of CALCRIM No. 375 concerning the permissible uses of evidence of uncharged offenses. The instruction provided, in relevant part, as follows:
“If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:
“1. He acted in an emergency to prevent a significant bodily harm or evil to himself or someone else;
“2. He 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 actually believed that the act was necessary to prevent the threatened harm or evil;
“5. A reasonable person would have also believed that the act was necessary under the circumstances....”
An essential element of the necessity defense is that the defendant had an objectively reasonable belief that his criminal conduct was necessary. (Kearns, supra, 55 Cal.App.4th at p. 1135; see also People v. Trippet (1997), 56 Cal.App.4th 1532, 1538 [to sustain the necessity defense, the defendant must establish, among other elements, that he subjectively believed his action was necessary to prevent a greater harm and that such belief was objectively reasonable].) The jury was so instructed under CALCRIM No. 3403.
Defendant argues, however, that the modified version of CALCRIM No. 375 impermissibly converted the standard of objective reasonableness into a standard of subjective reasonableness. He contends that it was irrelevant whether he had previous convictions for driving under the influence.
In discussing the objective reasonableness element of self defense, the court in People v. Humphrey (1996), 13 Cal.4th 1073, stated that “[a]lthough the belief in the need to defend must be objectively reasonable, a jury must consider what ‘would appear to be necessary to a reasonable person in a similar situation and with similar knowledge....’ [Citation.] It judges reasonableness ‘from the point of view of a reasonable person in the position of defendant....’ [Citation.]” (Id. at pp. 1082-1083.) The court further stated that such a determination requires the jury to consider all the facts and circumstances. (Id. at p. 1083.)
In People v. Ochoa (1993), 6 Cal.4th 1199 (Ochoa), the defendant was convicted of gross vehicular manslaughter while intoxicated. On appeal, our Supreme Court held that evidence relevant to the defendant’s subjective state of mind, including evidence of a prior conviction for driving under the influence and attendance at an alcohol awareness class, was properly admitted, even though the test for gross negligence was that of objective reasonableness. (Id. at p. 1202.) The court explained, “In determining whether a reasonable person in defendant’s position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks. True,... the defendant’s lack of such awareness would not preclude a finding of gross negligence if a reasonable person would have been so aware. But the converse position does not logically follow, for if the evidence showed that defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence (as opposed to simple negligence) would be appropriate whether or not a reasonable person in defendant’s position would have recognized the risk.” (Id. at p. 1205.)
In Humphrey, the court cited Ochoa with approval, reiterating that “[a]lthough the ultimate test of reasonableness is objective, in determining whether a reasonable person in defendant’s position would have believed in the need to defend, the jury must consider all of the relevant circumstances in which defendant found [himself].” (Humphrey, supra, 13 Cal.4th at p. 1083.) Defendant fails to cite Ochoa, however, and failed to address Humphrey’s treatment of the reasonable person standard as discussed above.
We conclude that in informing the jury that it could consider defendant’s prior convictions for driving under the influence as to all the elements of the necessity defense, including objective reasonableness, the trial court’s modified version of CALCRIM No. 375 was fully consistent with the principles stated in Ochoa and Humphrey. We find no error in the instruction.
B. Harmless Error
Even if we were to find instructional error, we would find such error harmless under either the Watson or the Chapman test. Defendant’s purported purpose in driving under the influence of alcohol was to obtain information about the scope of the fire and evacuation. However, the evidence showed that defendant had other alternatives he failed to use, and thus, he failed to establish the element that a reasonable alternative existed. To list only a few alternatives supported by the evidence, he could have called 911 or the fire department, he could have asked the grandfather to drive him, he could have listened for emergency updates on the radio or television, or he could have called a neighbor.
People v. Watson (1956), 46 Cal.2d 818, 836.)
Chapman v. California (1967), 386 U.S. 18, 24.)
In People v. Raszler (1985), 169 Cal.App.3d 1160, the defendant, allegedly suffering from the delusion that he was in danger from people following him, attacked train employees and announced he was hijacking the train. (Id. at pp. 1162-1163.) The court held that the defendant was foreclosed from a necessity defense when he had disregarded other available, nonviolent methods of attaining safety. (Id. at p. 1166.) In People v. Geddes (1991), 1 Cal.App.4th 448, the court held that a defendant could not claim it was necessary to set fire to the house when he believed his wife and daughter were being held hostage because other means existed to summon help. (Id. at p. 456.) Here, likewise, because other means were available to defendant to obtain the information he sought, he failed to establish the necessity defense.
Moreover, defendant failed to establish there was any emergency within the meaning of the necessity defense. In discussing self defense, the court in Humphrey stated, “‘Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury.’ [Citation.]” (Humphrey, supra, 13 Cal.4th at p. 1082.) Here, defendant did not even claim that an actual emergency or imminent danger existed—his objective was merely to obtain information from which he could assess the situation.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., MILLER, J.