To: Supervising attorney

From: Geronimo Gutierrez IV

Date: November 21, 2017

Re: Donna Jones – Possible Necessity Defense

______________________________________________________________________________

QUESTION PRESENTED

Can Donna Jones prevail under a common law Necessity Defense for her trespass into an

apartment complex lobby?

BRIEF ANSWER

Likely yes. First, because Ms. Jones prevented a significant evil by avoiding her potential

death as suggested after consideration of her risk of hypothermia, historical rainfall, cold

weather, and vulnerabilities. Second, Jones had no adequate alternatives because the apartments

denied her because of income requirements, or in the instance of shelter for capacity

requirements, resulting in her involuntary homelessness. A person in her condition could not

have made it to a local rain shelter without safe assistance, resulting in no reasonable alternative

shelter.

Furthermore, Jones did not create a danger greater than that avoided because trespassing

and causing a tripping hazard in an apartment complex lobby is unlikely a reasonably greater

danger than avoiding the potential death of a human being. Also, Jones had a good faith belief in

necessity even though she suffered sensory impairment and physical illness. Moreover, Jones

had an objectively reasonable belief in necessity because historical rainfall would naturally lead

someone to seek refuge; especially knowing another had been in danger due to the rainstorm.

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Finally, there is no dispute that Jones was a substantial contribution in the rainstorm, no analysis

of this issue follows below.

STATEMENT OF FACTS

Donna Jones is sixty-three years old. Jones is a thin and frail homeless individual. Jones

was arrested for trespassing in an apartment complex lobby on 27 February 2017. Jones has not

denied this trespass. Jones chose to trespass to keep warm after historical single-day rainfall in

San Diego drenched her blanket and clothing. She has one adult child that lives in Phoenix,

Arizona.

Jones has suffered from a brain aneurysm, which required emergency surgery. Jones’

physical condition resulted in a loss of cognitive function, along with weekly severe and painful

migraines. Jones takes medications, which leave her light-headed and foggy, and makes it

difficult for her to think clearly. This medical condition may have led to Jones’ loss of

employment at a real estate firm, followed by the subsequent loss of her apartment. Jones now

receives $750 disability check every month. Jones has applied for apartments, but the apartments

denied her due to income requirements. Jones has contacted a temporary shelter, but it was

overcapacity. The shelter added her to the waitlist. Jones’ current sleeping location since April of

2016 has been Crestline Park in San Diego, California. Before Jones’ homelessness, she had

sought to house with a friend followed by a stranger she met on Craig’s List.

On the night of Jones’ arrest, she was exposed to cold weather, rain, physical illness in

the form of numbness in hands and feet from the cold weather, and violent shaking from the cold

weather. Jones said she thought she might die if she slept outside the night of her arrest. Jones

heard rumors of a rain shelter the night of her arrest but did not know its location or how she

would get there. There was a motel in an unsafe party of town Jones had previously stayed at, but

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she could not have afforded to stay there because she needed money for food, medicine, and

other necessities. A doctor at the jail made sure Jones was okay. The doctor told her that she had

escaped the weather at an opportune time. This doctor had seen cases of hypothermia in San

Diego and is aware of the time sufficient to suffer from hypothermia, but noted weather

conditions and one’s overall health are also crucial factors.

DISCUSSION

The defense of necessity will prevail when there is evidence to establish defendant

violated the law to: (1) prevent significant evil, (2) had no adequate alternative, (3) did not create

danger greater than the one avoided, (4) had a good faith belief in the necessity, (5) had a belief

that is objectively reasonable, and (6) did not substantially contribute to the emergency. In re

Eichorn, 81 Cal. Rptr.2d 535, 539 (1998). Also, necessity does not negate any element of the

crime but represents a public policy decision not to punish an individual despite proof of the

crime. People v. Condley, 138 Cal.Rptr. 515; People v. Beach, 240 Cal.Rptr. 50, 58 Ct. App.

(1987), review den; People v. Heath, 255 Cal. Rptr. 120, 125 (Ct. App. 1989) Finally, the

necessity defense seeks to limit liability to lack of legal alternatives so one may avoid imminent

harm when there is no time to reach legal authorities because such an attempt would be to no

avail. 240 Cal. Rptr. at 58; 255 Cal. Rptr. at 124.

1. Preventing Significant Evil

Here, Jones likely satisfies the “preventing significant evil” requirement because she avoided

imminent physical harm. 81 Cal. Rptr.2d at 539. For one to prevail on showing that significant

evil was prevented the court considered the following: imminent harm, bodily harm, and “attack

of illness.” City of Des Moines v. Webster, 861 N.W.2d 878, 880 (Iowa Ct. App. 2014); the

physiological need for sleep. 81 Cal. Rptr. at 539; weather which is, “cold,” “really cold,” “very

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cold” Com. v. Magadini, 474 Mass. 593, 598, 52 N.E.3d 1041, 1048 (2016); “Finally, future

harm does not excuse offense…the [act must] induce trepidation of death…if the act is not

done.” State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981), But see, 861 N.W.2d at 885–86 (cold

weather alone is not an emergency).

Here, facts suggest Jones might not prevail in showing a significant evil was prevented. Jones

was cold the night of her arrest, but cold weather is not an emergency. Also, a rainstorm is

gradual with visible manifestations before rainfall. The gradual nature of a rainstorm suggests

that Jones would not have been in imminent harm.

However, factors in favor of Jones showing the prevention of a significant evil are greater.

First, numbness in hands and feet from weather so cold may be reasonably considered a physical

illness because indications may lead to damage to appendages. This particular occurrence of cold

weather is especially odd given the warmer climate of San Diego. The manner in which Jones

expressed the onset of numbness in her hands and feet suggest imminent physical harm because

it seemed sudden. Also, Jones felt like she was going to die if she slept outside. The rain

drenched Jones, which may contribute to Jones’ violent shaking and development of numbness

in her extremities.

The doctor that examined Jones had seen cases of hypothermia in San Diego when people are

exposed to rain and cold winds. This doctor noted that it could only take several hours for one to

start suffering from hypothermia; the doctor informed Jones that weather conditions and one’s

overall health are especially crucial in assessing such an event. Jones is known to be frail and

thin, which buttresses concerns of Jones’ health faring poorly in such weather conditions had she

not found refuge.

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 The nature of Jones’ overall health provides further support that there was a prevention of

significant evil by Jones, which may have resulted in her death. Because Jones had been

suffering from loss of cognitive function, severe and painful migraines shows apparent

deficiencies in her overall health.

Accordingly, Jones likely prevented a significant evil.

2. No Adequate Alternatives

Jones’ options on the night of her arrest for criminal trespass are likely to satisfy the “no

adequate alternative” requirement because she was prevented from using adequate alternatives.

81 Cal.Rptr.2d at 539. Among the factors the court will consider in deciding whether this

element is met for one to use a necessity defense is: one must have evidence sufficient to

establish one violated the law with no adequate alternative. Id.

a. Is Ms. Jones involuntarily homeless?

Jones’ conduct likely satisfies a showing that she is involuntarily homeless. 474 Mass. at

595–601. Among the factors the court will consider in evaluating whether this element is met

are: finding shelter; length of time seeking homeless shelters, issues with homeless shelters,

work history; the cost of shelter; willingness to rent or stay in homeless shelters. Id, and poverty

(which is linked to their inability to get medical care, governmental assistance, and employment)

mental and physical illness and disability. Lehr v. City of Sacramento, 624 F. Supp. 2d 1218,

1222 (E.D. Cal. 2009).

Here, facts suggest that Jones might not show involuntary homelessness. Jones’ work

history suggests she has skills beyond manual labor, so she can avoid aggravating her disability,

to offer prospective employers. No facts show support that she attempted to apply for such jobs.

Also, Jones is intelligent to obtain financial disability assistance. Her apparent intelligence

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suggests she may be capable of finding other programs that would further assist her in housing

assistance, or any other assistance that she may need. The fact that Jones did not want to reach

out to her daughter to avoid shame is unacceptable because such an action represents an

unwillingness to ask a family for assistance with homelessness.

However, factors that weigh in favor of finding Jones should prevail in showing she is

involuntarily homeless are greater. Here, Jones’ lack of employment seems to reflect her

previous medical problems regarding required emergency surgery for a brain aneurysm before

her termination at a real estate firm. Her termination is an important factor in considering Jones’

involuntary homelessness because she likely would have sheltered herself had she not lost her

job. Given that Ms. Jones made efforts to seek shelter, even though she was in a frail condition

likely shows that Jones is involuntarily homeless.

Accordingly, Jones is likely able to prevail on showing involuntary homelessness.

b. Did Ms. Jones have alternative shelter options?

Here, jones likely satisfies the “no adequate alt shelter” requirement because there was no

reasonably available place for her to stay on the night in question that would have kept her out of

the rain. 81 Cal.Rptr.2d at 389. Also, the defendant is free to avoid futile alternatives because

they don’t have to pursue all alternatives; however, other jurisdictions have ruled that

overcrowded shelters do not mean inadequate. 861 N.W.2d at 885. Moreover, the court will

consider the following factors in deciding whether this element is met: safety in reaching shelter,

work history, sufficient income to pay for shelter, shelter occupancy, travel assistance to

homeless shelters. 81 Cal. Rptr.2d at 537-40 (no adequate alternative where the defendant was

single, homeless, a male, had a work history, could not find work to pay for shelter, shelters were

full on the night defendant was cited, and the path to the shelter was “through very dangerous

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areas of town. Homeless individuals are ten times as likely to be victimized, and city provided a

bus to shelter from the civic center); lack of affordable housing. See O’ Neill, Cal. Ct. App. at 4

(2002); See also, 624 F. Supp. 2d at 1222 (expert stated people rarely choose to be homeless, to

be exposed to the elements, to be exposed to the dangers of the streets, in unsanitary conditions,

and experience fear of arrest. Homelessness is allegedly due to factors beyond their control, such

as poverty (linked to their inability to get medical care, government assistance, and

employment)…mental, and physical illness and disability…).

Among the factors the court cites as failing to show adequate alternatives are defendant’s

lack of comfort in a crowded shelter, parting from personal possessions, and did not desire to

sleep on a hard bench. 861 N.W.2d at 886. The threat of homelessness or need for money does

not justify arson when other legal alternatives are available. People v. Thomas, WL 4249193, 5

(Cal. Ct. App. 2017).

Here, facts suggest Jones may have had adequate alternatives. For example, Jones had heard

about a rain shelter provided by San Diego but failed to investigate its location. Jones applied for

and is now receiving a $750 disability check. She is capable of living with roommates, she has a

daughter that lives in Phoenix, Arizona, and Jones had access to the library, a place where one

would be able to learn about the city’s resources.

Nevertheless, the factors showing that Jones did not have adequate alternatives are greater.

Ms. Jones had unfortunately suffered from health problems, which may have lead to her job loss,

Jones does have a daughter, but it is not feasible for Jones to reach her daughter, especially

because of her limited income and health condition. Jones was made aware that she would not

qualify for the income requirements for housing once she moved out of a roommate’s apartment

in August of 2013. As a result, such an arrangement had ended December of 2015.

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 Moreover, the landlord of her friend Lisa informed Jones that, she would not be able to stay

with Lisa long-term, and that she had to leave, this is when Jones began staying at Crest Line

Park. Also, Jones had again attempted to apply for a couple of apartments. The apartments

denied her because she did not meet the income requirements. She called temporary shelters, but

they were full, so she added her name to the waitlist. The day Jones was arrested started with her

leaving the warm library and then finding herself soaked from the rainwater. If Jones would have

attempted to reach the rain shelter offered by San Diego she may have put herself in a fatal

situation because she had been suffering from serious medical conditions that limited her

physical stamina and cognitive function. Given the downpour of rain on the day of Jones’ arrest,

there were likely inadequate alternatives for Ms. Jones on the day of her arrest.

Accordingly, Jones will prevail on showing no alternative shelter options.

Thus, Jones is likely able to prevail on showing no adequate alternatives.

3. Danger Created not Greater Than Danger Avoided

Jones’ conduct likely prevails on showing the danger she created is not greater than the

danger she avoided because it is a reasonable belief that a resident of an apartment building

tripping over a trespassing homeless individual in the lobby of the apartment complex during

historical rainfall is not greater than the homeless individual’s potential death. People v.

Trujeque, 188 Cal.Rptr.3d 1,103,135–36 (Cal. 2015). Among the factors the court considers in

deciding whether this element is met are: harm or evil sought to be avoided by defendant was

greater than the evil sought to be prevented by law, reasonable belief that action was justified,

and burden of providing evidence of an emergency situation, and involving imminent harm that

illegal act seeks to prevent. Id. Also, by public policy, whether a violation of law was committed

so one may avoid imminent peril when there is no time to reach legal authorities because such an

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attempt would be fruitless. Beach, 240 Cal. Rptr. 50, 58 (Ct. App. 1987); Heath, 255 Cal. Rptr.

120, 124 (Ct. App. 1989).

Here, some facts might suggest danger created was greater than danger avoided. Jones

created a danger to the public. The danger here was clear; Jones stated that she had entered the

building and laid down directly “inside the doorway,” even though a doorway is a place where

people can frequently be found entering a building. A person did allege she had tripped over

Jones. Moreover, because Jones could have avoided the storm as an impairment to her

admittance to a shelter during the warm months, along with knowledge of what shelters were

available to her shows that the use of private property, in this case, would not be reasonably

necessary.

However, a more compelling argument is that Jones did not create danger greater than that

avoided. When comparing exposure of a person in her condition to harsh weather, which may

have been devastating to her health, to the tripping of another, or trespass of a private apartment

lobby, there is a reasonable showing that the danger avoided was greater. This reasonableness is

especially true because human life is considered more valuable than a single tripping or

trespassing incident. Moreover, Jones is known to be suffering from the effects of two aneurysm

surgeries, which resulted in numerous medications, and severe and painful migraines a few times

a week. In light of these side effects, one would not reasonably expect such an individual to have

the endurance of one not suffering from such disabilities, disabilities that have qualified Ms.

Jones for a disability income.

Also, when comparing the tripping of an individual over Ms. Jones’ near-death experience,

and physical involuntary shaking from the cold, one could easily develop a sense of how minute

the danger of tripping is, and how great of danger exists in the loss of human life. Also, one

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should note San Diego’s wettest storm to date on the day police arrested Jones for finding shelter

from the elements in the Sky View high-rise apartment complex.

http://www.sandiegouniontribune.com/weather/sd-me-lateststorm-sandiego-20170227-

story.html.

Accordingly, it is likely Ms. Jones will prevail on showing the danger created was not greater

than the danger avoided.

4. Good Faith Belief in Necessity

Jones’ actions are likely to have met the “good faith belief in necessity” requirement because

there are no facts to suggest she was deceitful. 624 F. Supp. 2d at 1233. Among the factors the

court will consider in deciding whether this element is met is one’s “good faith belief” that

necessity is required. Id.

A compelling argument is that because Jones was suffering from migraines, developed

numbness in extremities, had impaired senses from migraines, and had decay of cognitive

function Jones likely developed a good faith belief in necessity, as best as she could despite her

health, and weather conditions. Moreover, there are no facts to suggest that Jones was lying.

Accordingly, Jones is likely to prevail on showing a good faith belief in necessity.

5. Belief In Necessity is Objectively Reasonable

Jones’ conduct likely satisfies the “Belief In Necessity is Objectively Reasonable”

requirement because she had been a part of unusual circumstances events. 188

Cal.Rptr.3d at136. For a person to prevail on showing an objectively reasonable belief,

she must have a reasonable belief that her conduct was justified, and must provide

evidence to buttress an emergency of imminent harm greater than the law seeks to

prevent, one’s belief must also be objectively reasonable. Id.

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 Here, facts suggest Jones might not prevail on showing an objectively reasonable

belief. Testimony of the medical doctor attesting to the time hypothermia needs to

develop has been recorded. The doctor stated hypothermia could take several hours to

develop; this shows that Jones may have been objectively unreasonable in her belief that

she would suffer from hypothermia because facts suggest she may not have been in the

cold rain for more than a few hours at most.

However, a more compelling argument is that the anomalous weather the day of

Jones’ arrest, which compelled the city to arrange a storm shelter for homeless people

does suggest Jones had an objectively reasonable belief. She needed to seek refuge in the

lobby of an apartment complex because it may be unreasonable to suggest that a

homeless individual in Jones’ condition would have been able to reach the rain shelter.

Moreover, this belief of Ms. Jones does gain support from the fact that another homeless

person was reported to have been in danger the day of her arrest, especially because both

individuals share the commonality of being homeless in San Diego. Finally, local

authorities were compelled to search for this individual.

http://www.sandiegouniontribune.com/weather/sd-me-lateststorm-sandiego-20170227-

story.html.

Accordingly, Jones is likely to prevail on showing she had an objectively reasonable

belief.

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