Necessity

(a) [§ 68] Availability of Defense., 1 Witkin, Cal. Crim. Law 5th Defenses § 68 (2025)

The defense of necessity has long been recognized, but the situations rarely appeared in early case law, and the dicta and discussion by writers furnish little by way of a test. Thus, a typical illustration was the taking of food to prevent starvation; but, apart from conditions of famine or other serious emergency, the opportunity to obtain food from relief agencies probably precludes the defense. The classic question, whether one in danger of drowning, starvation, or other catastrophe may sacrifice the life of another to save one's own, is generally answered in the negative. (See 1 Wharton, Crim. Law (16th ed.), § 15:2; CALCRIM, No. 2764 [Escape: Necessity Defense]; CALCRIM, No. 3403 [Necessity]; CALJIC, No. 4.43 [Defense of Necessity—General].) (On defense of necessity generally, see LaFave, 2 Substantive Criminal Law 3d, § 10.1; 23 A.L.R.7th Art. 1 [application of necessity defense to murder]; 115 Proof of Facts 3d 309 [proof of necessity defense in criminal case]; on medical necessity not available as defense to manufacturing and distributing marijuana in violation of federal law, see United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 121 S.Ct. 1711, 1717, 149 L.Ed.2d 722, 731.) California case law has recognized that the defense of necessity is available under limited circumstances. However, the defense as delineated in these cases often appears more closely akin to the duress defense than to the classic necessity defense. The following cases are illustrative: People v. Velasquez (1984) 158 C.A.3d 418, 421, 422, 204 C.R. 640 [statutory prohibition of possession of weapons by prisoners is absolute; defense of necessity was not available where it was based on claimed need of protection against future prison attacks]. People v. Weber (1984) 162 C.A.3d Supp. 1, 4, 5, 208 C.R. 719 [in prosecution of nuclear protesters for trespassing during demonstrations, defendants' belief in danger of nuclear weapons did not establish defense of necessity]. In re Eichorn (1998) 69 C.A.4th 382, 390, 81 C.R.2d 535 [in prosecution for violating city's ban on sleeping in public places, refusal to allow defendant to raise necessity defense was error, where defendant presented substantial evidence that he slept in civic center because his alternatives were inadequate and economic forces were primarily to blame for his predicament; city could not avoid defense by asserting that defendant could have found shelter in nearby town]. People v. Youngblood (2001) 91 C.A.4th 66, 72, 109 C.R.2d 776 [necessity defense was not available in prosecution for felony animal cruelty where defendant accumulated 92 cats in small trailer, claiming that she was rescuing them from euthanasia by animal control; necessity defense is based on public policy, which declares that animal shelters established under C.C. 1834 et seq. must humanely destroy abandoned animal if new owner cannot be found]. People v. Galambos (2002) 104 C.A.4th 1147, 1160, 1162, 128 C.R.2d 844 [medical necessity defense is inconsistent with limited statutory exception under Compassionate Use Act (Proposition 215; 2 Cal. Crim. Law (5th), Crimes Against Public Peace and Welfare, § 166 et seq.)]. People v. Saavedra (2007) 156 C.A.4th 561, 567, 67 C.R.3d 403 [in prosecution of prison inmate in possession of weapon, necessity defense was available based on theory that defendant seized inmate-made weapon from ground during altercation with other inmates to prevent immediate, more aggravated attack against himself].

(b) [§ 69] Elements of Defense., 1 Witkin, Cal. Crim. Law 5th Defenses § 69 (2025)

(1) Statement of Elements. In People v. Pena (1983) 149 C.A.3d Supp. 14, 197 C.R. 264, the court described the traditional elements of the necessity defense as follows: (a) “The act charged as criminal must have been done to prevent a significant evil.” (b) “There must have been no adequate alternative to the commission of the act.” (c) “The harm caused by the act must not be disproportionate to the harm avoided.” (d) “The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm.” (e) “Such belief must be objectively reasonable under all the circumstances.” (f) “The accused must not have substantially contributed to the creation of the emergency.” (149 C.A.3d Supp. at 25, 26.) (See People v. Pepper (1996) 41 C.A.4th 1029, 1035, 48 C.R.2d 877 [restating elements of defense].) (2) Application. In People v. Kearns (1997) 55 C.A.4th 1128, 64 C.R.2d 654, defendant admitted her participation in four robberies, but claimed that she was forced by threats against her life to commit the crimes. On appeal she argued that a necessity instruction should have been given on the court's own motion. Held, there was no error. Defendant's evidence was not sufficient to establish all the elements of the defense. Notably, defendant “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.” (55 C.A.4th at 1135.) Defendant committed a series of armed robberies that created a risk of serious bodily injury or death to each of her victims. Those robberies were the greater, not the lesser evil, and recognition of necessity as a defense is not appropriate. (55 C.A.4th at 1135.) In People v. Buena Vista Mines (1998) 60 C.A.4th 1198, 71 C.R.2d 101, defendant, the owner of an inactive mine, built a holding pond to store and evaporate contaminated water. During a heavy rainfall, defendant released 180,000 gallons of contaminated water into a creek to prevent the holding pond from overflowing or collapsing. When charged with criminal water pollution, defendant pleaded necessity. Held, the defense was not available. “[D]efendant substantially contributed to the emergency by storing contaminated water in an inadequately sized open pond.” (60 C.A.4th at 1202.) His claimed lack of funds to address the issue is not a defense. (60 C.A.4th at 1203.) Reasonable, less harmful alternatives—the earlier installation of a treatment facility, the building of a second pond, or the release of less water—were available. (60 C.A.4th at 1203, 1204.) In People v. Miceli (2002) 104 C.A.4th 256, 127 C.R.2d 888, defendant pistol-whipped a neighbor who had been supplying defendant's girlfriend with methamphetamine, and was convicted in a jury trial. Defendant contended that the trial court erred by refusing to instruct on the necessity defense. Held, there was no error. Defendant's evidence was not sufficient to establish that there was no adequate alternative or that his belief in the necessity of his acts was objectively reasonable. The normal and appropriate response was to contact the police. (104 C.A.4th at 267.) Although defendant claimed that he had previously reported his concerns, he did not report the specific incident that he claimed necessitated his acts. “The evidence did not show that that complaint, if made, would have been futile, or that defendant had reasonable grounds to think it would have been.” Further, as “a matter of public policy, self-help by lawbreaking and violence cannot be countenanced where the alleged danger is merely speculative and the lawbreaker has made no attempt to enlist” the aid of law enforcement. (104 C.A.4th at 268.) (3) Illustrations. The following decisions are also of note: People v. Trujeque (2015) 61 C.4th 227, 273, 188 C.R.3d 1, 349 P.3d 103, infra, § 95 [instruction on necessity defense was not warranted, where there was no evidence that defendant sought to prevent any imminent harm or that he faced any emergency situation when he killed victim]. People v. Garziano (1991) 230 C.A.3d 241, 242, 243, 281 C.R. 307 [necessity was not defense to charges arising out of demonstration at abortion clinic, because pregnant woman's decision to exercise constitutional right to terminate pregnancy is not “significant evil,” and person who criminally interferes with exercise of constitutional rights by others may not claim necessity; viewing Pena's articulation of elements as “excessively expansive”]. People v. Verlinde (2002) 100 C.A.4th 1146, 1164, 123 C.R.2d 322 [defense was not available in prosecution for gross vehicular manslaughter while intoxicated where defendant asserted that she had to drive because driver fell asleep; there was no evidence that defendant had good faith, objectively reasonable belief that she was preventing greater harm or that her own behavior did not substantially contribute to emergency]. People v. Bell (2020) 48 C.A.5th 1, 20, 261 C.R.3d 563 [necessity defense was not available to defendant whom jury found guilty of attempted robbery, and therefore had contributed to emergency; any error by trial court in including requirement that defendant reported to proper authorities after attaining position of safety was not prejudicial]. People v. Coulthard (2023) 90 C.A.5th 743, 768, 307 C.R.3d 383 [exclusion of evidence regarding necessity defense to child abduction was proper where defendant failed to offer proof establishing all elements of defense; defendant's proffer about imminent risk of abuse and harm that victim might suffer was based on victim's hearsay statements, and defendant failed to show that he had no reasonable legal alternative to prevent potential harm to victim].

(c) [§ 70] Burden on Defendant., 1 Witkin, Cal. Crim. Law 5th Defenses § 70 (2025)

(1) General Rule. Because necessity is an affirmative defense (supra, § 2), the defendant has the burden of proving the defense by a preponderance of the evidence. (See People v. Condley (1977) 69 C.A.3d 999, 1008, 138 C.R. 515; People v. Waters (1985) 163 C.A.3d 935, 937, 209 C.R. 661.) (2) Distinction: Where Lack of Necessity Is Element of Crime. Where the absence of necessity is an element of the crime, the prosecution has the burden of proving lack of necessity beyond a reasonable doubt. In People v. Dewberry (1992) 8 C.A.4th 1017, 10 C.R.2d 800, defendant was charged with violating former P.C. 277, which prohibited a person having a right to custody of a child from maliciously taking, detaining, concealing, or enticing away the child “without good cause” and with the intent to deprive another person with a right to custody. The court concluded that necessity was not an affirmative defense; rather, lack of necessity, i.e., lack of good cause, was an element of the crime. (8 C.A.4th at 1020, 1021.)

(d) [§ 71] Lack of Alternatives., 1 Witkin, Cal. Crim. Law 5th Defenses § 71 (2025)

(1) In General. Decisions have stressed the importance of showing the lack of adequate alternatives. (See People v. Barnett (1998) 17 C.4th 1044, 1147, 1149, 74 C.R.2d 121, 954 P.2d 384 [necessity defense was not available where means chosen (kidnapping) were not reasonably necessary to resolve danger that defendant delusionally believed he faced]; In re Weller (1985) 164 C.A.3d 44, 48, 49, 210 C.R. 130 [in prosecution for trespass, availability of alternative legal means to protest dangers of nuclear holocaust precluded reliance on defense of necessity]; People v. Raszler (1985) 169 C.A.3d 1160, 1165, 1166, 215 C.R. 770 [even if circumstances justify resort to some criminal act, defendant must choose “least costly alternative” before he or she can rely on necessity as defense]; People v. Trippet (1997) 56 C.A.4th 1532, 1538, 1539, 66 C.R.2d 559, 2 Cal. Crim. Law (5th), Crimes Against Public Peace and Welfare, § 171 [medical necessity defense, if it exists in California, has same elements as general necessity defense; where prescription drug containing synthetic marijuana compound was available, defendant failed to establish that she had no adequate alternative to possession and transportation of marijuana for medical use].) (2) Driving Recklessly. In People v. Morris (1987) 191 C.A.3d Supp. 8, 237 C.R. 164, defendant claimed that he was driving recklessly because he believed that his girlfriend was having a miscarriage at home. Held, “a defendant charged with reckless driving may not defend on the theory that he did so out of ‘necessity’ because a third person, not in his vehicle, is in need of medical assistance.” (191 C.A.3d Supp. at 9.) Rather than creating “the unacceptable risk of human carnage and property damage strewn in his wake,” defendant had the legal alternative of telephoning emergency services to summon help. (191 C.A.3d Supp. at 11.) (3) Driving While Intoxicated. People v. Slack (1989) 210 C.A.3d 937, 258 C.R. 702, reached a similar result. Defendant, convicted of driving while intoxicated, claimed that he fled in his car in fear after his credit card was declined in a Tijuana restaurant, and that he did not stop for pursuing Tijuana police because of previous contacts with them and his fear that they would assault him. Held, instructions on the necessity defense were properly refused. “[T]he risk of vehicular destruction is so great that even the risk of physical assault to the intoxicated driver pales in comparison.” (210 C.A.3d at 943.) Also, defendant had alternatives, such as paying the restaurant bill in cash or asking his dining companion to pay. (210 C.A.3d at 943.) “Most significantly, except for his voluntary inebriation, the risk of harm from [defendant's] conduct would have been minimized.” (210 C.A.3d at 944.) (4) Possession of Firearm. In People v. Pepper (1996) 41 C.A.4th 1029, 48 C.R.2d 877, defendant, charged with possession of a firearm by a felon, claimed that he possessed a rifle only long enough to move it away from a small child; hence, he was entitled to an instruction on the necessity defense. The claim was rejected, because there was no evidence that the child was trying to touch or was even aware of the rifle, and defendant had the alternative of taking the child out of the room. (41 C.A.4th at 1035, 1036.) Westlaw. © 2025 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.

(e) [§ 72] Necessity as Defense to Prison Escape., 1 Witkin, Cal. Crim. Law 5th Defenses § 72 (2025)

(1) Limited Application. For many years California courts rejected the excuse of necessity as a defense to a prison escape. (See People v. Whipple (1929) 100 C.A. 261, 279 P. 1008 [intolerable prison conditions]; People v. Richards (1969) 269 C.A.2d 768, 778, 75 C.R. 597 [threat of sexual assault].) Then, in People v. Lovercamp (1974) 43 C.A.3d 823, 118 C.R. 110, the court recognized the defense as valid. “However, … the defense of necessity to an escape charge is extremely limited in its application. This is because of the rule that upon attaining a position of safety from the immediate threat, the prisoner must promptly report to the proper authorities.” (43 C.A.3d at 831.) (See 54 A.L.R.5th 141 [duress, necessity, or conditions of confinement as justification for prison escape].) In Lovercamp, a group of inmates allegedly continuously threatened defendants, who feared for their lives and felt they had no choice but to leave the institution to save themselves after nothing was done about their complaints. Defendants left peaceably and were promptly captured in a hayfield a few yards away. Held, defendants' offer of proof was sufficient to require that the defense be submitted to the jury. (a) Reprehensible prison conditions historically have been found insufficient to justify an escape, because the public interest in maintaining confinement outweighed the prisoner's interest in escaping. But in a humane society, some attention must be given to the individual prisoner's dilemma. “The question that must be resolved involves looking to all the choices available to the defendant and then determining whether the act of escape was the only viable and reasonable choice available.” (43 C.A.3d at 827.) (b) Based on an analysis of California and out-of-state cases, the proper rule is that a limited defense of necessity is available if the following conditions exist: (1) “The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future.” (43 C.A.3d at 831.) (2) “There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory.” (43 C.A.3d at 831.) (3) “There is no time or opportunity to resort to the courts.” (43 C.A.3d at 831.) (4) “There is no evidence of force or violence used towards prison personnel or other ‘innocent’ persons in the escape.” (43 C.A.3d at 832.) (5) “The prisoner immediately reports to the proper authorities when he has attained a position of safety from immediate threat.” (43 C.A.3d at 832.) (2) Illustrations. The following decisions are also instructive: United States v. Bailey (1980) 444 U.S. 394, 100 S.Ct. 624, 634, 62 L.Ed.2d 575, 590 [necessity as defense under federal escape statute]. People v. Wheeler (1977) 68 C.A.3d 1056, 1058, 137 C.R. 791 [escaped prisoner must immediately report to proper authorities when he attains position of safety from immediate threat; defendant strained credulity by suggesting that fear of death or substantial bodily injury from improperly diagnosed medical condition persisted over 23-month period following his escape, until time he was captured]. People v. Farley (1996) 45 C.A.4th 1697, 1712, 53 C.R.2d 702, citing the text [to establish necessity defense, defendant must establish that he immediately reported to proper authorities after attaining position of safety; defense not available where defendant remained at large over 7 months and never reported to authorities]. People v. Kunes (2014) 231 C.A.4th 1438, 1443, 180 C.R.3d 896 [defendant's claim that he escaped to Pennsylvania because his parents needed him to care for them, even if true, would not support necessity defense; defendant did not prove that he faced immediate threat of death, forcible sexual attack, or substantial bodily injury, and he did not report to authorities upon his return].