People v. Miceli - 104 Cal. App. 4th 256, 127 Cal. Rptr. 2d 888 (2002)

Rule:

A defendant is entitled to instruction on request on any defense for which substantial evidence exists. However, the trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense. A defendant raising the defense of necessity has the burden of proving that he 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. 

Facts:

The jury convicted Joseph Salvatore Miceli after it found that he pistol-whipped the victim on the victim's property in front of his guests. Miceli had claimed that he acted out of necessity because the victim was a drug dealer who posed an imminent danger to Miceli’s girlfriend by giving her drugs that could have created a deadly risk to her based on other medications she was taking. Miceli argued on appeal that the trial court erred in refusing his request to instruct the jury on the defense of necessity. 

Issue:

Did the trial court err in refusing Miceli’s request to instruct the jury on the defense of necessity?

Answer:

No.

Conclusion:

The court disagreed. Miceli failed to show that he had no adequate alternative to breaking the law, nor did he show that his belief in the necessity of his acts was objectively reasonable. Because there was overwhelming evidence that Miceli used his semiautomatic firearm as a club, he could have been properly convicted under Cal. Penal Code § 245(b) on that basis, as well as on the basis that the firearm was loaded. The trial court properly declined to instruct on the lesser included offense of assault with a deadly weapon because the jury could not have found that defendant committed assault with a deadly weapon rather than assault with a semiautomatic firearm.