In Re Weller

Petitioners, disappointed in the political process and frustrated with lawful means of disseminating antinuclear weapons information, trespassed at Lockheed Missiles and Space Corporation. After having been warned that their actions were prohibited, they went on Lockheed property to offer leaflets to entering employees. They were convicted of trespass, a misdemeanor, and were sentenced to 45 days in jail, suspended upon pay *46 ment of a $150 fine and completion of a period of community service. They claim here that the trial court erred in barring their defense of necessity. We disagree.

The essence of petitioners’ offer of proof was that they felt they had no choice but to trespass on the Lockheed premises because they believed that their presence would bring an end to the threat of nuclear holocaust. They offered the testimony of Robert Aldridge, a former Lockheed design group leader involved in development of the Trident Missile. He would have testified that the Trident Missile represented a shift from deterrence to an aggressive first strike capability and made nuclear war imminent. He would have testified about the possibility of nuclear holocaust by accident and…

I concur in the judgment.

As the majority points out, the necessity defense has an uncertain status in California law. On one hand, the California Supreme Court has broadly stated that just as there are no common law crimes in this state, “ ‘likewise with excuses or justifications—if no statutory excuse or justification apply as to the commission of the particular offense, neither the common law nor the so-called “unwritten law” may legally supply it.’ [Citation.]” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 632 [ 87 Cal.Rptr. 481 , 470 P.2d 617 , 40 A.L.R.3d 420 ].) As more than one commentator has pointed out, while this state’s Penal Code includes a number of common law defenses, such as duress, unconsciousness, and self-defense, there is no code provision recognizing the defense of necessity. (Comment, Necessity Defined: A New Role in the Criminal Defense System (1981) 29 UCLA L.Rev. 409, 417, fn. 45; Berry, Jr., The Mysterious Defense of Necessity (1979) 54 State Bar J. 384, 385; Gardner, The Defense of Necessity and the Right to Escape from Prison—A Step Towards Incarceration Free from Sexual Assault (1975) 49 So.Cal.L.Rev. 110, 133-134.) When the court in People v.…

Petitioners, disappointed in the political process and frustrated with lawful means of disseminating antinuclear weapons information, trespassed at Lockheed Missiles and Space Corporation. After having been warned that their actions were prohibited, they went on Lockheed property to offer leaflets to entering employees. They were convicted of trespass, a misdemeanor, and were sentenced to 45 days in jail, suspended upon payment of a $150 fine and completion of a period of community service. They claim here that the trial court erred in barring their defense of necessity. We disagree.

The essence of petitioners' offer of proof was that they felt they had no choice but to trespass on the Lockheed premises because they believed that their presence would bring an end to the threat of nuclear holocaust. They offered the testimony of Robert Aldridge, a former Lockheed design group leader involved in development of the Trident Missile. He would have testified that the Trident Missile represented a shift from deterrence to an aggressive first strike capability and made nuclear war imminent. He would have testified about the possibility of nuclear holocaust by…