Filed 4/20/17 P. v. Nguyen CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

DAVIS NGUYEN,

Defendant and Appellant.
C081979

(Super. Ct. No. 15F01154)



A jury found defendant Davis Nguyen guilty of possessing a controlled substance in prison. (Pen. Code, § 4573.6.) On appeal, defendant contends the trial court prejudicially erred by: (1) failing to instruct the jury on the defense of necessity; (2) excluding the testimony of the prisoner defendant claimed supported his necessity defense; and (3) instructing the jury with CALCRIM No. 361, the “failure to explain” instruction. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
In July 2014, Kenneth Prather was a correctional officer at the California State Prison, Sacramento. As part of his duties, he monitored visitations between inmates and visitors. He explained that inmates are subject to a pat search before entering the visiting room to prevent them from bringing contraband into the room. He further explained that visitors are visually inspected and required to walk through a metal detector prior to entering the visiting room. Visitors are also required to provide a photo identification and paperwork showing which inmate they are visiting. Several correctional officers and numerous cameras monitor the visiting room.
On July 26, 2014, J’Leesa Lewis visited defendant. Prather was familiar with Lewis because she regularly visited defendant. Prior to checking in with Prather, Lewis went to the bathroom. When she returned from the bathroom and presented her identification and paperwork, she did not make eye contact with Prather and failed to respond to a question inquiring about how her day was going. After Prather checked Lewis in, she walked into the visiting room.
Typically, Lewis was very social and talkative; however, on this day she was not. Prather noted Lewis was acting very nervously. Based on her abnormal behavior, Prather suspected that Lewis possessed contraband and decided to observe her through one of the cameras. While observing Lewis, Prather noticed her adjust something in her mouth with her tongue.
Shortly after defendant entered the visiting room, Lewis and defendant engaged in a lengthy kiss. Following the kiss, defendant appeared to have something in his mouth. Prather also noticed that defendant did not move his mouth very much when he talked to Lewis. Based on his observations, Prather requested that defendant be summoned for an inspection.
When defendant was initially summoned over the PA system, he did not move. After he was summoned a second time, defendant appeared to swallow something. Defendant was eventually escorted to the search room where a search of his mouth was performed. Because the search did not reveal any contraband, defendant was allowed to continue his visit with Lewis. However, after the videotape of defendant entering the visiting room was reviewed, his visit with Lewis was terminated and he was transferred to a contraband surveillance cell.
The next day, a correctional officer retrieved two bindles of methamphetamine from defendant’s feces. Later that day, an additional bindle of methamphetamine was retrieved from defendant’s feces.
Defense Case
Defendant testified in his own defense. He said that he had been incarcerated since 2009 for attempted murder, and that he had met a man named Desmond Moreland in prison in early 2013. In late 2013 or early 2014, Moreland told defendant that he was a mob boss in a criminal organization known as the Black Mafia. In support of his claim, Moreland showed defendant various documents discussing some of the things he had done. Moreland told defendant that members of his organization had kidnapped and killed police officers and had pressured United States Senator Harry Reid into retirement. He also said that he had stopped his organization from killing the judge who had presided over his trial. Defendant testified he believed Moreland, including Moreland’s claim that he had contacts outside of prison who were involved in a criminal organization.
In June or early July 2014, Moreland told defendant that he needed him to get caught bringing methamphetamine into the prison visiting room. When defendant asked Moreland why he wanted him to do that, Moreland did not respond. Instead, Moreland showed defendant a piece of paper with the names of defendant’s family members and their addresses. Moreland did not tell defendant what he planned to do to defendant’s family. Defendant, however, understood that Moreland was threatening to harm his family.
Around a month later, an inmate delivered methamphetamine to defendant in the recreation yard. Defendant claimed that he put the methamphetamine in his pocket, and that the methamphetamine was not detected during a patdown search conducted before he returned to his cell.
Two days after defendant received the methamphetamine, Lewis visited defendant. Prior to the visit, defendant told Lewis that he planned to get caught with methamphetamine in the visiting room, and that she needed to tell the correctional officers she had brought the methamphetamine with her. Defendant explained that he believed Lewis would be safer in jail than out on the street where Moreland’s associates could find her. Defendant, however, did not tell Lewis about Moreland’s threat.
Defendant claimed that he put the methamphetamine into his rectum prior to entering the visiting room so he would not get caught during a strip search. According to defendant, after kissing Lewis, he pretended like she had passed him something. He said that his plan was to be placed on “potty watch” so that he would get caught with the methamphetamine.
Defendant explained that he did not inform any correctional officer about Moreland’s threat because he feared what Moreland would do to his family if he was moved before he complied with Moreland’s demand. Defendant further explained that he did not warn his family about Moreland’s threat because he was afraid they were being watched by Moreland’s associates. Defendant claimed that he did not believe the police could protect his family if he told them about Moreland’s threat. He testified that he believed that the only way to protect his family was to comply with Moreland’s demand. Defendant failed to explain why he thought it was best for Lewis to be arrested if he believed that complying with Moreland’s demand would keep her safe.
Evidence Code Section 402 Hearing and Defense Request that Moreland Testify
Prior to trial, the prosecutor filed an in limine motion arguing that defendant should be precluded from offering Moreland’s testimony in support of a necessity defense. At the Evidence Code section 402 hearing, defense counsel presented Moreland’s testimony, which was largely consistent with the testimony given by defendant later at trial and outlined immediately above. As relevant here, Moreland testified that he had told defendant he had “criminal connections” ready to commit crimes outside of the prison and that he had directed defendant to “actually get caught with the drugs on him.” He had shown defendant a paper containing the names and addresses of defendant’s family members while giving him this direction. He said he could “reach” defendant’s family and that the family could be hurt, but gave no specifics as to time or place or anything else. Moreland testified that he had told defendant to carry the drugs into the visiting room. He explained with some difficulty (characterized by the trial court as testimony containing 15-second pauses) that his reason for telling defendant to do this was so that Moreland could get to court and testify about his “real identity.” He described a plot wherein “the powers that I’m involved with in organized crime, they conspired in my conviction and changed my whole identity and sent me into prison.” He also described the prison medical staff as trying to “force-medicate [him] to make [him] not know who [he] really [was].”
Following the hearing, the trial court granted the prosecutor’s request to exclude Moreland’s testimony, finding that there was no relevance to his testimony because it did not support all the elements of a necessity defense. However, the court agreed to reevaluate the relevance of Moreland’s testimony after defendant testified. After defendant testified as outlined above, defense counsel requested permission to call Moreland as a witness. The prosecutor objected on relevancy grounds. In response, defense counsel argued that Moreland’s testimony was a crucial part of establishing defendant’s necessity defense. Defense counsel asserted that Moreland’s testimony would bolster defendant’s credibility.
The trial court again denied defendant’s request to present Moreland’s testimony at trial, reasoning that the testimony defendant sought to elicit from Moreland was not relevant to any defense the jury would be instructed on. The court subsequently added that its primary reason for excluding Moreland’s testimony was pursuant to Evidence Code section 352. Reasoning that any probative value of Moreland’s testimony in corroborating certain aspects of defendant’s testimony would be outweighed by its tendency to waste time and confuse and “mislead the jury because there is no probative value in [Moreland’s] testimony which doesn’t result in the giving of a necessity instruction,” the court again explained that it found the evidence insufficient to warrant a necessity instruction.
Verdict and Sentence
The jury found defendant guilty of possessing a controlled substance in prison. (§ 4573.6.) In a bifurcated proceeding, the trial court found true the allegation that defendant had suffered a conviction that qualifies as a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and sentenced him to the upper term of four years, doubled to eight years for the strike prior.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Instruction on the Defense of Necessity
Defendant contends the trial court prejudicially erred by failing to instruct the jury on the defense of necessity. We disagree.
The trial court must instruct on the general principles of law openly and closely connected with the case and necessary for the jury’s understanding of the case, including any defenses on which the defendant relies or which are supported by substantial evidence and not inconsistent with the defendant’s theory of the case. (People v. Boyer (2006) 38 Cal.4th 412, 468-469.) But the court is not obliged to instruct on theories without substantial evidentiary support. (People v. Miceli (2002) 104 Cal.App.4th 256, 267.) “ ‘ “ ‘Substantial evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’ ” ’ [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 102.) In determining whether an instruction is required, we do not determine the credibility of the defense evidence, but only whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Cole (2007) 156 Cal.App.4th 452, 484.) We independently review the question of whether the trial court erred by failing to instruct on a defense. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.)
“ ‘To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that [he] violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [he] did not substantially contribute to the emergency. [Citations.]’ [Citation.]” (People v. Galambos (2002) 104 Cal.App.4th 1147, 1160.)
We conclude the trial court properly denied defendant’s request to instruct the jury on the defense of necessity. Substantial evidence did not support the instruction. There was no evidence the purported danger was imminent. The possibility that Moreland would retaliate at some undefined point in the future against defendant’s family does not constitute an emergency or imminent evil. Moreland never threatened immediate harm to defendant’s family. Further, the evidence was insufficient to permit a reasonable jury to find that defendant did not have an adequate alternative to breaking the law. “The normal and appropriate response to a perceived criminal emergency is to call the police.” (People v. Miceli, supra, 104 Cal.App.4th at p. 267.) Defendant did not inform a correctional officer or any other law enforcement officer that Moreland had threatened his family, even though he had the opportunity to do so. Defendant failed to show that a law enforcement response would not have sufficed here. Nothing in the record shows that a complaint to law enforcement would have been futile, or that defendant had reasonable grounds to believe it would have been. (See id. at p. 268 [“The failure to report an emergency to the proper authorities does not bar a necessity defense if the evidence shows ‘a history of futile complaints which makes any result from such complaints illusory’ ”].) Further, no evidence supported the existence of an objectively reasonable belief by defendant that his criminal act--apparently the act of getting caught with drugs--was necessary to prevent the greater harm, given the vagueness of Moreland’s threats and the fanciful nature of his motivations.
II
Excluding Moreland’s Testimony
Defendant next contends the trial court prejudicially erred in excluding Moreland’s testimony. According to defendant, Moreland’s testimony was clearly material and relevant to the defense of necessity. We disagree.
A trial court has broad discretion under Evidence Code section 352 to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Mills (2010) 48 Cal.4th 158, 195.) On appeal, we evaluate rulings under Evidence Code section 352 applying the abuse of discretion standard. (Mills, at p. 195.)
“ ‘The necessity defense is very limited and depends on the lack of a legal alternative to committing the crime. It excuses criminal conduct if it is justified by a need to avoid an imminent peril and there is no time to resort to the legal authorities or such resort would be futile.’ [Citation.]” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164, disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 939.) The testimony defendant sought to elicit from Moreland would not have provided sufficient evidence to permit a jury to find that defendant’s criminal conduct was justified by a need to avoid imminent peril and defendant did not have a legal alternative to committing the charged offense. Moreland did not testify pretrial that he threatened immediate or even specific harm at any time to defendant’s family if defendant failed to bring methamphetamine into the visiting room. His testimony was vague and non-specific on the issue of threats to defendant’s family, as was defendant’s on that issue. Further, Moreland’s testimony did not show that defendant had no reasonable legal alternative to committing the crime. It certainly did not show the objective reasonableness of any fear defendant may have had of imminent harm. Accordingly, the trial court did not err in excluding Moreland’s testimony. The probative value of his testimony was limited by the inapplicability of the necessity defense. Further, the limited relevance of the testimony was substantially outweighed by the probability that its admission would necessitate undue consumption of time and particularly that it would create substantial danger of confusing the issues and misleading the jury.
In the absence of any error under Evidence Code section 352, we also reject defendant’s claim that the exclusion of Moreland’s testimony violated his due process rights. The routine and proper application of state evidentiary law does not impinge on a defendant’s due process rights. (People v. Hovarter (2008) 44 Cal.4th 983, 1010.)
III
CALCRIM No. 361
Defendant contends the trial court prejudicially erred by instructing the jury with CALCRIM No. 361. He argues there was no evidentiary support for this instruction because he did not fail to explain or deny any material evidence against him. Alternatively, defendant contends that if he forfeited this claim because trial counsel failed to object to the instruction, he received ineffective assistance of counsel. We discern no prejudicial error.
CALCRIM No. 361 provides: “If the defendant failed in (his/her) testimony to explain or deny evidence against (him/her), and if (he/she) could reasonably be expected to have done so based on what (he/she) knew, you may consider (his/her) failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶I] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
We need not analyze this claim in any detail, because even assuming defendant’s argument was preserved for appeal and has merit, the alleged error was harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710] [beyond a reasonable doubt standard]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonably probable standard].) The record contains overwhelming evidence of defendant’s guilt. Three bindles of methamphetamine were found in defendant’s feces after he was placed in a contraband surveillance cell. There is nothing in the record suggesting that defendant did not intend to possess methamphetamine in prison.
DISPOSITION
The judgment is affirmed.




/s/
Duarte, J.



We concur:



/s/
Butz, Acting P. J.





/s/
Renner, J.