IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
May 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
AMANDA MARIE BLUNDELL, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF106058A)
The opinion of the court was delivered by: Robie, J.
P. v. Blundell
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Amanda Blundell guilty of four counts of first degree burglary. The trial court sentenced her to state prison for three concurrent lower terms and one consecutive term, finding as a mitigating factor that her abusive incarcerated husband coerced her to assist his minor brothers in committing the offenses.
On appeal, defendant challenges the trial court's denial of her request to instruct the jury on the defense of necessity. We affirm.
Defendant drove her husband's brothers to the scene of the burglaries and picked them up after the heist was over.
Before trial, defendant testified at an Evidence Code section 402 hearing regarding the defense of duress. (Evid. Code, § 402; People v. Galambos (2002) 104 Cal.App.4th 1147, 1157.) She had married her husband in 2003, initially living with his mother and minor brothers before the couple moved to the home of defendant's grandmother. Defendant's husband was a gang member, and had been physically and verbally abusive to her and others. In late 2006 or early 2007, he was imprisoned for burglary. However, he told her that he had people watching her actions. On one occasion, a girl who was a cousin of the husband hit defendant in the face for purportedly "disrespect[ing]" him. During a prison visit shortly before the September 2007 burglaries, defendant's husband directed her to be a driver for his brother to help him get money or else the husband would harm defendant or her family. The brother contacted her and asked her to give him a ride or else he would tell her husband. Defendant did not attempt to call the police because she was scared and did not think they would be of help. She filed for divorce from her husband after the burglaries. The divorce was final in August 2009.
The trial court ruled defendant had failed to establish a fear of imminent great bodily injury. As a result, she was not entitled to raise the defense of duress.
A fingerprint found at one of the burglaries matched a print of one of the brothers that was in the records of the police department. A meter reader in the vicinity of two of the burglaries had observed a woman driving a green Cadillac with two teenage males as passengers. After she dropped them off, he saw the teens reconnoitering houses and an RV.
Based on this information, a police officer made a stop of defendant when he saw her driving a green Cadillac. The officer confirmed that defendant knew the brother whose fingerprint had been found. She had just dropped him off. She admitted being aware that he was burglarizing houses and had given him rides because he was her brother-in-law. The police released her. In a subsequent police interview, she admitted that the brother had asked her to drive him to locations where he wanted to "rob some houses." She would drop him off, then later pick him up (at which time he would have a bag or items with him). She did not think that she was committing any crimes herself. She felt sorry for the teen because his mother did not take care of him and he needed the money for food and other necessities.
Defendant testified. She reiterated the facts about the offenses to which she had attested during the pretrial hearing and verified the police officer's account of her interviews with him. She realized that the brothers were doing something wrong, but she was scared of her abusive imprisoned husband, who had told her to help them. He had said that she would be under surveillance, and a female cousin of his had beaten her for not being respectful of him. She did not report the threats or the assault to the police (even during her interview with the police officer about the burglaries) because she did not think they could help. However, after her interview with the police officer, she was more afraid of getting in trouble and stopped helping the brothers. She also admitted that she was helping the brothers because they were family and she felt sorry for the fact that they needed to steal to support themselves. She had not thought that her acts were criminal, and she did not share in any of the proceeds. Defendant acknowledged that after she initiated divorce proceedings against her husband, which were final in August 2009, nothing had happened to her.
In closing argument, the prosecutor disputed her claim that she had participated out of fear (because she had never reported any abuse and had told the police fully about the brothers and the burglaries once the police connected her with them), and argued that she had acted out of sympathy with a rationalization that her actions were not illegal. Defense counsel relied on the abusive relationship in arguing that she lacked the intent to aid or abet the brothers.
Instruction On Necessity
Defendant agrees that the absence of an imminent threat of great bodily injury precludes the availability of the defense of duress. However, she claims the trial court should nonetheless have instructed sua sponte on necessity.
The duty to instruct on a defense sua sponte arises where it appears a defendant is relying on the theory or substantial evidence supports it and it is consistent with the actual theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424.) The gist of defendant's case rested on her purported fear of her husband, which the trial court credited in part. Our focus is therefore on whether the evidence satisfied the elements of necessity.
Necessity requires evidence inter alia that a defendant subjectively and reasonably believes that in order to prevent "a significant evil," there is not any adequate alternative to violating the law. (People v. Galambos, supra, 104 Cal.App.4th at p. 1160; People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)
We do not find substantial evidence that facilitating the burglaries was the only adequate alternative to the unspecified threats of violence from defendant's husband or that it was reasonable for defendant to believe this. Defendant could simply have done at the outset what she ultimately did: inform the police of her husband's demand that she provide transportation to the scenes of the crimes for his brothers. The reasonable alternative of resorting to the authorities was fatal to a defense of necessity even in a case where a defendant claimed that an armed abusive companion was in the immediate proximity of the establishments that he forced her to rob. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1132-1133, 1135.) While defendant argues that as a victim of domestic abuse, it was reasonable for her to conclude that contacting the police would have been futile, the studies she cites in her brief were not part of her evidence at trial.*fn1 We therefore reject defendant's contention.
The judgment is affirmed.*fn2
We concur: NICHOLSON, Acting P. J. MAURO, J.