HP "necessity" defense for homeless campers (fwd)

rosaphil (rugosa@interport.net)
Tue, 6 Apr 1999 04:58:20 -0400 (EDT)

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---------- Forwarded message ----------
Date: Mon, 5 Apr 1999 17:43:27 -0700 (PDT)
From: info-post <dhm@best.com>
Reply-To: homeless_powwow@egroups.com
Newsgroups: alt.society.homeless, alt.poverty, alt.org.food-not-bombs,
    alt.activism, alt.thebird, alt.gathering.rainbow,
    alt.society.civil-liberties, alt.society.civil-liberty, misc.legal
Subject: HP "necessity" defense for homeless campers

Below is the major part of a written opinion from an intermediate court of
appeals in California, plus a few comments first from a couple of the
nation's top homeless advocates:

---------- Forwarded message ----------
> From: "Becky Johnson" <wmnofstl@cruzio.com>
> Date: Mon, 5 Apr 1999 00:09:24 -0700

> Good decision.  We've been circulating it here too (as has Ruben
> Botello, ...).  Unfortunately it doesn't help infraction cases much
> (we predict) because there's no jury involved.  Still, if enough
> people tried to use it, it might do lots of good.

- Robert Norse and Becky Johnson


> From: "Blazing Star" <sananda@hotmail.com>
> From: sananda@hotmail.com
> Date: Sun, 04 Apr 1999 13:29:13 PDT
> Like the old adage, it took 40 years for Moses to get out of 
> Egypt, and 40 years for Egypt to get out of Moses.
> It sickens me how the fascists, i.e., judges, lawyers, politicians and 
> bureaucrats, refuse to talk in plain English, in order to confuse the 
> masses. Good ruling you sent me, but it's like Egypt, a tangled web of 
> lies and deceit designed to oppress and exploit us. 
> I know and understand the legal mumbo-jumbo, but I refuse to bank on it, 
> anymore. How much pain did the homeless have to suffer, and how many 
> thousands of dollars did it cost taxpayers, for a bunch of wealthy old 
> farts to conclude that the homeless have the right to sleep? 
> Justice is not found in such a vicious game with people's lives. 

> peace, 
> Ruben Botello

-----Original Message-----

>           on
>Habeas Corpus
>     G022777
>     (Super. Ct. No. AP-10221,
>      Muni. Ct. No. 93CM02515)
>     O P I N I O N
> Original proceeding; petition for a writ of habeas corpus to
>challenge a judgment of the Municipal Court of Orange County, James M.
>Brooks, Judge.  Writ granted.
> O'Melveny & Myers, Phillip R. Kaplan, Brett J. Williamson, Todd A.
>Green, and Robert G. Loewy, for Petitioner.
> Michael R. Capizzi, District Attorney, Scott G. Scoville, Deputy
>District Attorney, for Real Party in Interest.
> James Eichorn was convicted of a misdemeanor violation of a City
>of Santa Ana ordinance banning sleeping in designated public areas.  The
>appellate department affirmed his conviction and denied his request to
>transfer the cause.  Eichorn thereafter petitioned for writ of habeas
>corpus in this court.  We conclude his conviction must be set aside.
> James Eichorn was cited for violation of the city's anti-camping
>ordinance (Santa Ana Mun. Code, ch. 10, art. VIII, **10-402) on the
>evening of January 25, 1993.   Following a detour to the Supreme Court
>that established the ordinance was facially constitutional (Tobe v. City
>of Santa Ana (1995) 9 Cal.4th 1069), Eichorn's case eventually went to
> In a significant pretrial ruling, the court (Judge Brooks)
>determined Eichorn could not present a necessity defense (see CALJIC
>No.*4.43) to a jury.  Eichorn had offered to prove that on the night of
>the violation every shelter bed within the city that was available to a
>homeless single man with no children was occupied, and that he was
>involuntarily homeless, i.e., he had done everything he could to alleviate
>his condition.  Due to circumstances beyond his control, defendant, a
>14-year resident of Santa Ana, had been unable to find work as a manual
>laborer that paid enough to allow him to find an alternative place to
> The court determined defendant had not made a sufficient showing
>to allow a jury to consider his necessity defense:  "It appears that the
>defense of necessity is not supported by the offer of proof.  The first
>element wasn*t satisfied, in the court's view, no significant, imminent
>evil for this defendant or any other person."   Defendant objected that
>the court*s ruling "not only goes against what we understand to have been
>the statements and admissions by the People and by [Judge Margines, who
>had previously handled the case] but undermines the whole reason why we
>were going forward at trial
>. . . it's clearly eviscerated our entire defense."
> In light of Judge Brooks* ruling on the necessity defense, and
>noting there was no dispute Eichorn was in a sleeping bag in the civic
>center on the night in question, Eichorn's lawyer agreed to go forward
>without a jury on the constitutional issue whether the ordinance was
>unconstitutional as applied to him based on his alleged involuntary
> Trial commenced without a jury in May 1996.  Officer Carol Craig
>testified defendant was in a sleeping bag on the ground at about 10:30
>p.m. outside a county office building in the civic center.  He was using
>his clothes as a pillow.  Graig asked (as she always did) why Eichorn
>wasn't at the National Guard Armory (a homeless shelter several miles
>away).  A bus from the civic center to the armory usually picked up people
>between 5 and 6 p.m.  According to Craig*s police report, defendant
>replied he had tried *a while back.*  It was full, so he never returned.
>The court judicially noticed that the walk between the civic center and
>the armory was *through very dangerous areas of town.*  Police
>photographed and cited Eichorn, then asked him to move on.  He complied.
> James Meeker, a professor at the University of California, Irvine
>in the Department of Criminology, Law and Society, testified he had
>conducted a study on homelessness in January and February 1993.  There
>were more than 3000 homeless individuals in Orange County during this
>period.  Most homeless were longtime residents of Orange County (average
>14 years) who had lost jobs and could not afford housing.  The County had
>relatively little affordable housing, and it had been decreasing.  Single
>men had a particularly difficult time because they were less likely to
>receive the support from family, friends, or governmental agencies.  Most
>were sleeping outdoors because they had no other choice.  Homeless
>individuals were 10 times as likely to be victimized by crime than the
>average population.  Many homeless stayed in urban areas because of
>proximity to assistance providers (food, clothing and shelter), day jobs
>(just eight percent were unemployed and not looking for jobs), public
>facilities (restrooms etc.) and the lack of transportation.
> Timothy Shaw was the executive director of the Orange County
>Homeless Issues Task Force.  He pegged the number of homeless in Santa Ana
>at about 1500 persons in 1993.  There were about 118 shelter beds
>available for single men like Eichorn, most available on a first-come,
>first-serve basis.  In addition, the armory could accomodate 125 persons
>during the winter (although it frequently exceeded its capacity).  As was
>routine, these shelters were full on the night Eichorn was cited.
> Maria Mendoza was the county*s homeless coordinator and oversaw
>use of the armory as a shelter.  The armory was available only on cold
>winter nights.  She explained how the bus to the armory would leave from
>the civic center in the late afternoon.  Those on the bus had priority at
>the armory.  Eichorn had spent some 20 nights there in December and
>January.  On January 25, the armory was 13 persons over capacity, which
>was not uncommon.  That the armory would accept excess capacity was not a
>given.  Usually, only those "at risk" (e.g., women and children) would be
>admitted after the maximum was reached, and generally only when it was
> Eichorn, 49 years old, testified he had moved to Costa Mesa in
>1972, a few years after his discharge from the Marine Corps.  The Vietnam
>veteran lost his job in a machine shop in 1980, and subsequently ended up
>without a place to live.  He moved to Santa Ana because a friend told him
>about a job driving an ice cream truck.  He sold ice cream for about a
>year and was able to afford a motel room.  When he lost that job, he
>frequented the casual labor office in Santa Ana until it closed.  When he
>worked and could save enough, he would live in a motel.  He also relied on
>general relief and food stamps.  However, general relief was no longer
>enough to secure affordable housing because most of the less expensive
>motels had been torn down.  If he could not get into a shelter, Eichorn
>would sleep in the civic center, where he was close to services (including
>restrooms) and where there was "safety in numbers" (i.e., where it was
>less likely someone would steal or attack you while you slept).  He loved
>to work and did so every chance he got.  He did not like living outside.
>He had been turned away from the armory in the past and had a "nervous
>walk" back to the civic center.  On January 25, he did not recall whether
>he had tried to find a spot at a shelter or whether he heard that the
>shelters were full.  He recalled eating around 7 p.m.  He was in his
>sleeping bag listening to his radio when Craig arrived around 10:30.
>Eichorn's mother and stepfather lived in Long Beach, but staying with them
>was not an option because he was "an adult responsible for" himself.
>Defendant denied a problem with alcohol or drugs.
> June Marcott, program manager for food stamps and general relief
>of the County of Orange, testified Eichorn received food stamps on a
>regular basis from 1989 through 1993, except when he was employed in parts
>of 1991 and 1992.  He was eligible for $307 monthly in general relief if
>he participated in a work program (working nine days a month) and looked
>for work (four job applications per day).  He last received general relief
>in November 1990 and was terminated because he did not submit a job search
>report.  He applied for relief in March and June 1992, but was denied.
> The court found Eichorn had violated the camping ordinance and was
>not involuntarily homeless on the night in question, finding he chose not
>to go to the armory.  He also suggested defendant should have sought out
>familial assistance and should have applied for general relief.  The court
>ordered him to perform 40 hours of community service.  By a 2-to-1 margin,
>the appellate department of the superior court affirmed the conviction
>without opinion and declined to certify the case to this court for direct
>review.  (Cal. Rules of Court, rule*63.)  Eichorn filed this petition for
>habeas corpus and seeks to set aside his conviction.
> Eichorn makes a multi-pronged attack on his conviction.  One of
>his contentions is that he was induced to waive his right to a jury trial
>by the court*s pretrial ruling that he could not present a necessity
>defense.  As noted above, the court ruled the defense's offer of proof was
>inadequate, i.e., defendant had not presented enough evidence to get to a
>jury on the issue of whether he violated the law to prevent a significant
>evil.  This ruling was error, and we vacate the judgment accordingly.
> California appellate courts have recognized the necessity defense
>"despite the absence of any statutory articulation of this defense and
>rulings from the California Supreme Court that the common law is not a
>part of the criminal law in California".  (People v. Garziano (1991) 230
>Cal.App.3d 241, 242.)
> In Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1088, the
>Supreme Court, while holding the camping ordinance was facially valid,
>declined to decide whether and how it might be unconstitutionally applied.
>The court refused to assume that the ordinance would be enforced "against
>persons who have no alternative to camping or placing camp paraphernalia*
>on public property."  (Id. at p. 1088, fn. 8.)  Indeed, the Tobe court was
>given assurances by the People "that a necessity defense might be
>available to 'truly homeless' persons and that prosecutorial discretion
>would be exercised". (Ibid.)
> As the prosecutor recognized at one of the hearings held before
>trial, "because [defendant has] that necessity defense at trial, [the law]
>is never applied unconstitutionally.  Because of the nature of that
>defense that we're incorporating into our definition, there will never be
>an unconstitutional application." The court (Judge Margines) reasoned
>similarly:  "I think . . . the statute will not be applied
>unconstitutionally to these people; because if they are truly in the class
>that [defense counsel says] renders the application unconstitutional, then
>they will be found not guilty by virtue of the necessity defense.  [The
>defense has] the burden of demonstrating that they fall within the class.
>It*s the same burden you have at trial if you present a necessity
> An instruction on the defense of necessity is required where there
>is evidence *sufficient to establish that defendant 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.  [Citations.]*  (People v. Pepper (1996) 41
>Cal.App.4th 1029, 1035; People v. Pena (1983) 149 Cal.App.3d Supp. 14.)
> The defense of necessity is "founded upon public policy and
>provides a justification distinct from the elements required to prove the
>crime.  [Citation.]  The situation presented to the defendant must be of
>an emergency nature, threatening physical harm, and lacking an
>alternative, legal course of action.  [Citation.]  The defense involves a
>determination that the harm or evil sought to be avoided by such conduct
>is greater than that sought to be prevented by the law defining the
>offense charged.  [Citation.]  Necessity does not negate any element of
>the crime, but represents a public policy decision not to punish such an
>individual despite proof of the crime.  [*] An important factor of the
>necessity defense involves the balancing of the harm to be avoided as
>opposed to the costs of the criminal conduct.  [Citation.]  Unlike duress,
>the threatened harm is in the immediate future, which contemplates the
>defendant having time to balance alternative courses of conduct.
>[Citation.]  The defendant has the time, however limited, to form the
>general intent required for the crime, although under some outside
>pressure.  [Citation.]  Thus, the defense does not negate the intent
>element, and the defendant has the burden of proving the defense by a
>preponderance of the evidence."  (People v. Heath (1989) 207 Cal.App.3d
>892, 901.)  Whether necessity exists is generally a question of fact.
>(See People v. Lovercamp (1974) 43 Cal.App.3d 823, 832.)
> At a minimum, reasonable minds could differ whether defendant
>acted to prevent a "significant evil."  Sleep is a physiological need, not
>an option for humans.  It is common knowledge that loss of sleep produces
>a host of physical and mental problems (mood irritability, energy drain
>and low motivation, slow reaction time, inability to concentrate and
>process information).  Certainly, no one would suggest that a groggy truck
>driver who stops his rig on the side of a road rather than risk falling
>asleep at the wheel does not act to prevent a significant evil, i.e., harm
>to himself and others.  Indeed, Judge Margines had denied Eichorn's
>request for funds to hire an expert to testify about the harmful effects
>of sleep loss:  "I mean it doesn*t take an expert to tell us that, to
>convince a person, that there are ill effects that arise from sleep
> The court must instruct if the evidence could result in a finding
>defendant*s criminal act was justified by necessity.  (People v. Slack
>(1989) 210 Cal.App.3d 937, 941.)  Eichorn's offer of proof was sufficient.
>There was substantial if not uncontradicted evidence that defendant slept
>in the civic center because his alternatives were inadequate  and economic
>forces were primarily to blame for his predicament.  Thus, whether
>denominated a denial of his right to jury trial  or of his due process
>right to present a defense (see People v. Schroeder (1991) 227 Cal.App.3d
>784, 787 [noting the "right of a criminal defendant to present a defense
>and witnesses on his or her behalf is a fundamental element of due process
>guaranteed under the Fourteenth Amendment to the United States
>Constitution"]), the court's error was clear, fundamental, and struck at
>the heart of the trial process.
> Finally, because Eichorn is entitled to raise a necessity defense
>to charges he violated the camping ordinance, we find no other
>constitutional violations under the circumstances of this case.  (See
>Robinson v. California (1962) 370 U.S. 660 [state law making status of
>narcotic addiction a criminal offense inflicted cruel and unusual
>punishment in violation of the Fourteenth Amendment].)
> The writ is granted and the cause remanded to the former municipal
>court with directions to set aside the judgment of conviction and to
>proceed in conformity with this opinion.
>Filed 1/20/99

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