2764. Escape: Necessity Defense
If you conclude that the defendant (escaped/ [or] attempted to escape), that conduct was not illegal if the defendant can prove the defense of necessity. In order to establish this defense, the defendant must prove that:
1. The defendant was faced with a specific threat of (death[,]/ [or] forcible sexual attack[,]/ [or] substantial bodily injury) in the immediate future;
2. (There was no time for the defendant to make a complaint to the authorities/ [or] (There/there) was a history of complaints that were not acted on, so that a reasonable person would conclude that any additional complaints would be ineffective);
3. There was no time or opportunity to seek help from the courts;
4. The defendant did not use force or violence against prison personnel or other people in the escape [other than the person who was the source of the threatened harm to the defendant];
5. The defendant immediately reported to the proper authorities when (he/she) had attained a position of safety from the immediate threat.
The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof from 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 five listed items is true.
The court has a sua sponte duty to give this instruction defining the elements of the defense of necessity if there is sufficient evidence to raise a reasonable doubt. (People v. Condley (1977) 69 Cal.App.3d 999, 1008- 1013 [138 Cal.Rptr. 515]; People v. Lovercamp (1974) 43 Cal.App.3d 823, 831-832 [118 Cal.Rptr. 110].)
Escape—Necessity Defense. People v. Condley (1977) 69 Cal.App.3d 999, 1008-1013 [138 Cal.Rptr. 515]; People v. Lovercamp (1974) 43 Cal.App.3d 823, 831-832 [118 Cal.Rptr. 110].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 53.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.05 (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 94, Prisoners' Rights, § 94.20 (Matthew Bender).
(New January 2006)