Waters

A jury convicted defendant of escape from a county jail in violation of Penal Code section 4532, subdivision (a). He was sentenced to one year and one day in state prison. At trial, he raised the affirmative defense of necessity; and he appeals claiming error in an instruction that he had the burden of establishing the defense by a preponderance of the evidence. A second ground for appeal; namely, that he was deprived of the effective assistance of counsel at the sentencing hearing, does not raise questions whose discussion merits publication.

1. Instruction on the Affirmative Defense

The defense of necessity which justifies escape in order to evade forcible sexual attack or serious bodily injury in the immediate future was carved out in People v. Lovercamp (1974) 43 Cal.App.3d 823 [ 118 Cal.Rptr. 110 , 69 A.L.R.3d 668 ] as a matter of public policy and out of regard for the court’s own dignity and in the exercise of its duty to formulate and apply proper standards for judicial enforcement of the criminal law. The very limited circumstances under which the defense is available were clearly spelled out in Lovercamp and need not be repeated here.

People v. Condley (1977)…