Opinion
A142513
05-31-2017
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN M. LANDERS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN221100)
After an altercation in which his co-defendant Dylan Lamalie (Lamalie) shot Jesus Solis with a shotgun, appellant Adrian Landers (Landers) took the gun and hid it under a parked car and later in a nearby garbage room. Lamalie and Landers were charged with murder (Pen. Code, § 187, subd. (a)) and Landers was charged with being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The trial court instructed the jury on the defense of momentary possession to the felon in possession charge, but did not give an instruction requested by Landers on the defense of legal necessity. The jury deadlocked on the murder charge, but found Landers guilty of the felon in possession charge. On appeal, Landers argues that the trial court erred in failing to give his requested instruction on the defense of legal necessity. We affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On September 16, 2012, Landers was standing on Twenty-Sixth Street between Folsom and Lucky when Lamalie left his house nearby and entered the liquor store at the corner of Twenty-Sixth and Folsom. From inside, Lamalie saw Jesus Solis and Hugo Fuentes, Norteños gang members, walk past. Lamalie had a history of tense interactions with the Norteños gang, which had on numerous occasions assaulted or attempted to assault his friends and family, and had killed his uncle. In particular, Lamalie had two previous interactions with Solis in which Solis had threatened Lamalie or his companions. Solis was carrying a white bag and Lamalie was concerned that the bag contained a gun.
Lamalie exited the store and gestured at Solis and Fuentes. The situation escalated until Fuentes yelled and gestured in a way that Lamalie believed was intended to call other unseen Norteños gang members to his location. At that point, Lamalie decided to retrieve his shotgun from his house because he thought that "something was going to happen."
Lamalie emerged from his house with the shotgun pointed toward the ground. Fuentes continued to wave, and then Lamalie saw Solis running at him from the right carrying what he believed to be a gun. Lamalie fired at Solis twice. Solis disappeared from sight and subsequently died from gunshot wounds. Lamalie, believing that more Norteños were on their way and would shoot him if they found him in the street holding a gun, moved to discard the gun in a nearby patch of dirt. As he was doing so, Landers approached him and said "Hey, do you have some more shells, because they might come back." Lamalie then handed Landers the gun. Landers ran down the street and hid the gun under a parked car, then retrieved it from under the car and hid it in a nearby residential complex garbage room. Landers possessed the gun for approximately 32 seconds. Lamalie retrieved more ammunition from his house, asked Landers where the gun was located, retrieved it, and reloaded it. After he determined that the incident had ended, Lamalie returned the gun to the garbage room.
As relevant here, Landers and Lamalie were both charged with premeditated murder in violation of section 187, subdivision (a), and Landers was charged with being a felon in possession of a firearm in violation of section 29800, subdivision (a)(1). After a trial during which Lamalie testified but Landers did not, the trial court instructed the jury on the momentary possession defense to the felon in possession charge, but did not give an instruction on the defense of legal necessity sought by Landers. The jury deadlocked on the murder charge with respect to both defendants and the trial court declared a mistrial on that charge. The jury found Landers guilty of the felon in possession charge, and the trial court sentenced Landers to the upper term of three years.
DISCUSSION
The only issue before us on appeal is whether the trial court erred in failing to give an instruction on the defense of legal necessity as requested by Landers. The requested instruction (CALCRIM 3403) provides:
"The defendant is not guilty of <insert crime[s]> if (he/ she) acted because of legal necessity.
"In order to establish this defense, the defendant must prove that:
"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 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."
The trial court must "give a requested instruction concerning a defense only if there is substantial evidence to support the defense." (People v. Moore (2002) 96 Cal.App.4th 1105, 1116; see People v. Pollock (2004) 32 Cal.4th 1153, 1176.) Substantial evidence in this context is evidence sufficient to " 'deserve consideration by the jury,' " (People v. Wilson (2005) 36 Cal.4th 309, 331) i.e., " 'evidence from which a jury composed of reasonable men could have concluded' " the particular facts underlying the instruction existed. (People v. Flannel (1979) 25 Cal.3d 668, 684.)
1. Landers Had Adequate Legal Alternatives
Landers argues that he had no adequate legal alternative to taking the gun from Lamalie because refusing to do so would have done nothing to address the danger posed by Lamalie's remaining in the street holding an unloaded weapon if Norteños returned to the area after the shooting. We are not persuaded. Although refusing to take the gun would not have addressed the alleged danger, the record shows that Landers had other legal alternatives available to him. For example, he could have moved with Lamalie from the street to a safer location, such as Lamalie's nearby home. He could have had Lamalie discard the weapon in a nearby dirt patch, as Lamalie intended to do before he was approached by Landers. (See People v. Pepper (1996) 41 Cal.App.4th 1029, 1036 [finding defendant had adequate legal alternative to possessing gun in order to move it away from children because "defendant could have taken the children from the room and then had his sister move the weapon to a place of safety"].) There was no evidence that the arrival of the police or other gang members was imminent at the time Landers took the gun, and in fact the evidence showed that Lamalie had time to go home, get more ammunition, retrieve the gun, reload it, return to the area, and return the gun to the garbage room, all before the police or Norteños arrived. Under these circumstances, substantial evidence does not support the conclusion that Landers lacked an adequate legal alternative to taking possession of the gun.
2. There Is No Evidence Landers Actually Believed His Action Was Necessary
As evidence that Landers actually believed taking possession of the gun was necessary, Landers points to his statement to Lamalie that " 'Hey, do you have some more shells, because they might come back.' " Landers also points to evidence in the record suggesting that Landers saw "Mr. Fuentes and Mr. Solis walking the streets, acting as though they had guns, making verbal threats, and acting in a threatening manner" as circumstantial evidence of Landers's actual belief.
Lamalie's counsel objected to Lamalie's testimony that Landers made this statement on hearsay grounds, the trial court overruled the objection, and the parties disagree as to whether this statement can be considered as evidence of Landers's intent. We need not resolve this issue because with or without this statement, the record lacks substantial evidence to support the actual belief element of the necessity defense. --------
We do not agree that this evidence supports the actual belief element of the defense of necessity. The only inference to be drawn from Landers asking Lamalie " 'do you have some shells, because they might come back' " is that he sought to reload the weapon in preparation for further conflict with the Norteños, not that he believed it necessary to hide the gun in order to defuse the situation. In fact, this is exactly what happened: Lamalie returned to his house, obtained more ammunition, and Landers showed him where he had hidden the gun so that Lamalie could reload it. We also reject the argument that the evidence that Norteños in the area were armed and acting in a threatening manner supports any inference that Landers believed it was necessary for him to hide Lamalie's gun. Accordingly, substantial evidence does not support the actual belief element of the necessity defense, and the trial court did not err in failing to give the requested instruction.
DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
RIVERA, J.