APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. Affirmed as modified. (Super. Ct. No. SCD196460).
The opinion of the court was delivered by: Irion, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted Miguel Flores of possession of a firearm by a person prohibited from possessing a firearm (Pen. Code, § 12021, subd. (c)(1)),*fn2 carrying a concealed firearm (§ 12025, subd. (a)(2)), carrying a loaded firearm in a public place (§ 12031, subd. (a)(1)), and resisting a peace officer (§ 148, subd. (a)(1)). The trial court sentenced him to three years of probation.
Flores appeals, contending that his convictions must be reversed because: (i) the trial court failed to instruct the jury on the defenses of necessity and duress; (ii) the trial court erroneously instructed the jury regarding the criminal intent required for the offense of carrying a loaded firearm; and (iii) the firearm convictions violate his federal constitutional right to bear arms. As discussed below, we find these contentions to be without merit.
Flores also argues that the trial court erred in requiring payment of probation costs and attorney fees as a condition of probation. We agree, as does the Attorney General, that the trial court's probation order must be modified to delete the requirement that Flores pay probation costs and attorney fees as a condition of probation. In all other respects, we affirm.
On January 22, 2006, at around 10:00 p.m., San Diego Police Officers Joel Tien and Arnie Ambito were riding in a marked patrol car. They observed a small white car briefly driving in the wrong direction on a one-way street. The officers followed the car and activated their lights and sirens. The car did not stop and the officers gave chase. The white car slowed as it passed Grant Hill Park. Flores then opened the passenger side door and fled into the park as the car drove off.
Officers Tien and Ambito chased Flores on foot while a police helicopter hovered overhead. During the chase, Officer Tien yelled, "San Diego Police, stop, don't move!" Flores continued to run, while reaching with his right hand toward his waistband. When they reached a crest of a hill, Tien was able to tackle Flores. Tien handcuffed Flores and rolled him over. Tien pulled up Flores's shirt and found a .38-caliber handgun in Flores's waistband. The gun was loaded with six live rounds.
Flores raises a number of challenges to his convictions. We address each challenge separately below.
I. The Trial Court Did Not Err in Failing to Sua Sponte Instruct on Duress and Necessity
Flores contends that the trial court erred by failing to instruct the jury sua sponte on the defenses of duress and necessity. We disagree.
A trial court has a sua sponte duty to instruct on a defense " 'if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (People v. Barton (1995) 12 Cal.4th 186, 195; People v. Montoya (1994) 7 Cal.4th 1027, 1047 ["The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case"].) "In determining whether the evidence is sufficient to warrant a jury instruction," the courts do not "determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .' " (See People v. Salas (2006) 37 Cal.4th 967, 982.) As we will explain, here there was insufficient evidence to support either a defense of duress or necessity and therefore the trial court did not err in failing to instruct on those defenses.*fn3
Flores contends that his own testimony provided the requisite substantial evidence for both defenses. Flores's testimony, as pertinent to this contention, was as follows. Flores testified that he was riding in a car driven by Armando Perez, who was the brother of a friend. When the police pulled behind the car, Perez told Flores that he was on parole and had a gun in the car and did not intend to stop. Perez, while driving around the Grant Hill Park area, took out the gun "pointed it toward [Flores] and told [him] to get out of the car and take the gun." Flores testified that he "felt threatened in a way" and that agreeing to the request was his "only way out of the car." Perez stopped the car, "handed [Flores] the gun" and told him "to get out and run." Flores grabbed the gun (and his jacket) and exited the car through the passenger side door. As he exited, Flores pushed the gun into the waistband of his pants.
Flores testified that he then ran from the police because he was afraid of how they might react to his possession of the gun. Flores claimed that after running away from the car, he slowed to allow the police to catch up to him.
The defense of duress is available to defendants who commit a charged crime "under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused." (§ 26; People v. Wilson (2005) 36 Cal.4th 309, 331; CALCRIM No. 3402.) Here, even if Flores's testimony is credited, there was insufficient evidence to support a duress defense.
While Flores reasonably may have felt endangered when Perez pointed the gun "toward" him, the danger vanished when Perez handed Flores the gun. Despite the absence of any continuing threat, Flores then took possession of the gun, placed it in his waistband, jumped out of the car and fled from police. These actions, which occurred after the expiration of the purported threat, were the basis for the weapon possession charges. Consequently, Flores was not entitled to an instruction on duress. (See People v. Evans (1969) 2 Cal.App.3d 877, 882 [no instruction required based on defendant's claimed need to possess knife in prison due to threat of imminent assault because even if defendant initially obtained knife to protect himself, he continued to possess the knife after any "immediate danger ceased"].)
The defense of necessity also is inapplicable on the facts of the case. A necessity defense requires, among other things, that the defendant violated a law "to prevent a significant evil" with "a good faith belief in [the] necessity" of his acts and "with no adequate alternative." (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 (Pepper); see CALCRIM No. 3403.) In the instant case, even if, as Flores contends, he had to feign acceptance of the gun to get out of Perez's car (thus preventing the significant evil of his continued presence in a car recklessly fleeing from police), a necessity defense no longer applied once Perez slowed to let him out. At that time, it is indisputable that Flores had an "adequate alternative" to the unlawful possession of the gun; he could have simply left the gun in the car as he exited. Instead, Flores tucked the gun into his waistband and ran from the police. These actions constituted the basis for the charges and could not be excused by a necessity defense. (See United States v. Bailey (1980) 444 U.S. 394, 410 ["Under ...