## Facts

- A Santa Ana ordinance (§ 10-402) made it a misdemeanor to “camp” or use “camp paraphernalia,” including a sleeping bag, in specified public areas.
- On January 25, 1993, James Warner Eichorn, a long-time Santa Ana resident who was homeless, was cited at the civic center for being in a sleeping bag in a prohibited public area.
- Eichorn offered to prove that on the night cited, every shelter bed in the city available to a homeless single man without children was occupied.
- He also sought to present evidence that he was involuntarily homeless, had unsuccessfully attempted to obtain shelter (including a shelter an officer suggested that he reported was consistently full), and that many homeless individuals slept outside because they lacked alternatives.
- The municipal court barred Eichorn from presenting a necessity defense and denied funds for an expert regarding sleep deprivation.
- Eichorn was convicted of the misdemeanor; the superior court appellate department affirmed.
- Eichorn petitioned for habeas corpus in the Court of Appeal, arguing he was improperly prevented from presenting a necessity defense.

## Issues

1. Whether Eichorn presented substantial evidence requiring that the trier of fact be instructed on, and allowed to consider, the defense of necessity to the anti-camping charge.
2. Whether barring the necessity defense was prejudicial error given the undisputed evidence of the ordinance violation.

## Decision

- The Court of Appeal granted habeas relief and set aside Eichorn’s conviction.
- The court held that Eichorn’s proffer supported giving a necessity instruction and that the trial court erred by precluding the defense.
- The error was prejudicial because excluding necessity effectively eliminated Eichorn’s only meaningful defense.
- The matter was remanded for further proceedings consistent with allowing the necessity defense if supported by the evidence.

## Legal Principles

- Necessity (choice-of-evils) requires evidence that: (1) the defendant violated the law to prevent a significant evil; (2) there was no adequate legal alternative; (3) the defendant acted with an objectively reasonable, good-faith belief in the need to violate the law; and (4) the defendant did not substantially contribute to the emergency or create a greater danger than avoided.
- A defendant is entitled to an instruction on a defense theory when supported by substantial evidence from which a reasonable fact-finder could find the elements satisfied.
- A facially valid ordinance may still be subject to as-applied defenses and ordinary criminal-law doctrines; facial validity does not foreclose a necessity defense where the evidentiary showing supports it.
- Wrongful denial of a supported defense instruction is reversible when it deprives the defendant of the central theory of defense and cannot be treated as harmless on the record.

## Conclusion

Because Eichorn’s evidence could support a finding that he had no lawful alternative to sleeping in public and acted to avoid serious harm, the trial court was required to permit a necessity defense; its refusal warranted habeas relief and vacatur of the misdemeanor conviction.


In re Eichorn, 69 Cal. App. 4th 382 (Cal. Ct. App. 1998)