What is a Resolution of Necessity (RON)?
A resolution of necessity (RON) is a formal document adopted by the California Transportation Commission. An RON provides Caltrans authority to proceed with a condemnation action in order to acquire privately owned property for public purposes.
Condemnation is the legal proceeding that exercises the authority of the eminent domain. According to the California Code of Civil Procedure, a public entity might not always begin an eminent domain proceeding until its governing body has adopted a necessity resolution that fulfills the demands of the article of the law.
The right-of-way required for the State Highway System is obtained at fair market value through acquisition. Caltrans may request a condemnation action from the California Transportation Commission under California Streets and Highway Code, Section 102, and under California Code of Civil Procedure, Section 1245.230, if Caltrans can not achieve an agreement with a property owner on the value or quantity of land to be obtained. A necessity resolution would authorize Caltrans to take condemnation action to obtain assets.
California Code of Civil Procedure: Section 1245.230
California Code of Civil Procedure Section 1245.230 provides that a necessity resolution can only be implemented if:
- The project for which the property is to be purchased is deemed necessary;
- The estate is deemed necessary for the public interest;
- The project is situated where it will give the biggest public advantage at the least personal detriment; and
- An offer has been made to buy the property
The organization must also hold a government hearing to address the resolution of necessity and the suggested eminent domain action after meeting these four criteria.
The agency must notify the present owners of the property of the hearing. Property owners may attend the hearing themselves or seek representation of an eminent domain lawyer from California.
The Review Standard for Resolution of Necessity
Most eminent professionals of the domain can rapidly state the fundamental rule on results for a Necessity Resolution.
Under section 1245.250 of the Code of Civil Procedure, subdivision (a), the findings of public use by a public agency, and the need to establish those things in a conclusive manner. This means that the proprietor of the estate may not usually dispute this finding once the company concludes that the project is planned and placed in a position that is best compliant with the largest public good and least personal injury.
But there might be a twist that is rarely mentioned. If the findings of the agency are influenced or affected by gross discretionary abuse, it will not apply the conclusive presumption of section 1245.250, subdivision (a) (CCP 1245.225, subdivision b). source
Legal Defense Necessity
California Legal Defenses: NecessityUnder the Legal Defense of Necessity, a person may be not guilty of a criminal offense if it can be shown that the only reason they committed the crime was because it was necessary and there were no other options available to prevent a greater harm.
In order to establish a Necessity Defense, a defendant must be able to establish that:
- The criminal act was committed in order to prevent significant bodily harm
- There was no viable legal alternative available
- The act did not create a more serious danger
- The defendant actually believed that the act was necessary
- Such belief was reasonable
- And the defendant did not cause or substantially contribute to the emergency situation.
An example may occur in a scenario in which two friends are drinking in a remote location and one of the men suddenly has a heart attack. Knowing that an ambulance or other means of transportation would be unavailable or too slow, the first man drives his friend to the nearest hospital despite the fact that his blood alcohol level is above 0.08 percent. If this man was charged with Driving Under the Influence pursuant to California Vehicle Code Section 23152(b) VC, he could legitimately argue that his impaired driving was a necessary act taken to save his friend’s life. A prosecutor, judge or jury may take into account the emergency situation that existed and forgive the crime of impaired driving due to the necessity to save the life of another.
The Defense of Necessity is similar to the California Duress Defense, in that both involve engaging in criminal activity to prevent a greater harm. source
Necessity Defense in Criminal Cases
The Criminal Defense of Necessity
The defense of necessity may apply when an individual commits a criminal act during an emergency situation in order to prevent a greater harm from happening. In such circumstances, our legal system typically excuses the individual’s criminal act because it was justified, or finds that no criminal act has occurred. Although necessity may seem like a defense that would be commonly invoked by defendants seeking to avoid criminal charges, its application is limited by several important requirements:
- The defendant must reasonably have believed that there was an actual and specific threat that required immediate action
- The defendant must have had no realistic alternative to completing the criminal act
- The harm caused by the criminal act must not be greater than the harm avoided
- The defendant did not himself contribute to or cause the threat
Only if all of these requirements are met, will the defense of necessity be applicable. It is also important to note that in some jurisdictions, necessity is never a defense to the killing of another individual, no matter what threat they may present.
Reasonable Belief
Under the defense of necessity, an individual must reasonably believe, first and foremost, that there is an imminent and actual threat that requires immediate action. Thus, for instance, a school bus driver may be driving a bus of school-aged children when he loses control of his brakes as he is approaching a steep turn on a mountain road. He is faced with an actual and immediate threat that the bus may go out of control and drive off the road, risking the lives of countless children on the bus.
Like other crimes, most states require that this threat would be reasonably apparent to the average individual and is not a threat that the defendant experienced only subjectively. Here, a reasonable person would certainly agree that an out of control bus with children on it is an actual threat to safety.
No Realistic Alternative
Because the defense of necessity is essentially a justification for the criminal act, it is imperative that the defendant had no other realistic options available to him at the time the criminal act was committed. If he did, his criminal actions would not be justified. This does not mean, however, that no alternative whatsoever must exist. Generally, the individual will always have the option to simply let the greater harm occur and refrain from acting criminally, but courts have determined that this is not a “realistic” option.
In the example, for instance, if the bus driver had access to an emergency braking device that was designed to stop the bus when the regular brakes failed, he would not be justified in committing a criminal act to prevent collision because he had a realistic alternative available to him.
No Greater Harm
When an individual is evaluating whether it is necessary to undertake a criminal act in order to avoid a more serious problem from arising or occurring, the individual must be certain that no greater harm will arise from his or her criminal act than from the situation that would be avoided.
For instance, if, in order to avoid driving off the mountain road and plunging down the steep incline, the bus driver elects to drive the bus into a barn in order to stop the bus, he must be certain that no greater harm will come from this choice. Because it is a barn and perhaps appears empty to him, his criminal act of destroying the barn and any property inside will likely be considered less harmful than the lives lost if the bus careens over the road. However, if the bus drivers only alternative was to drive the bus into an area crowded with other people, he might, in fact, cause more harm through this alternative than would be prevented.
No Involvement in the Threat
Finally, any defendant claiming the defense of necessity cannot have contributed to or caused the threat that they were later seeking to avoid by committing the criminal act. Thus, if the bus driver had been advised by his mechanic that the brakes on his bus were failing, but decided not to have them replaced, he could have difficulty claiming the defense of necessity because his failure to act responsibly contributed to the threat he faced. source
Things You Must Prove For A Necessity Legal Defense To Work
What Types of Emergencies Are Allowed Under This Defense?
The emergency situation underlying or justifying your act must have been unforeseen and imminent and required that you take immediate action.
This does not generally include an economic emergency or one where you are suffering psychological harm.
However, there is a case where the court allowed a homeless individual to use the necessity defense when charged with violating an ordinance prohibiting sleeping in a state park.
The court opined that lack of sleep was a significant enough evil to be averted and that he lacked a legal alternative due to his economic circumstances1.
1.2) What is Considered No Adequate Legal Alternative to Your Act?
If you felt you had no choice but to commit the act, then you have to show that there was no other legal alternative available to you, such as calling the police.
What Is An Example?
An example is a defendant who was being forced by gang members to rob a bank or liquor store.
If a gang member accompanied the defendant into the place to be robbed, then the defendant had no opportunity to call the police, so this element would likely be satisfied.
However, if the gang members wait outside or in a getaway vehicle, the defendant had an opportunity to alert the robbery victim to call the police. It makes no difference if the defendant argues that he was so intimidated by the gang that he had to commit the act.
Are There Other Options Beside Calling The Police?
Calling the police is just one legal alternative.
Taking steps other than committing a criminal act, no matter how innocuous it may be so as to remove the potential harm or danger is another.
For instance, your wife or girlfriend may have sustained a severe injury or was in emergency labor. You rush her to the hospital in your car, running stop signs and lights before you cause an accident or are stopped by the police.
In this case, your alternative was to call 911.
You might be able to argue otherwise if you had called 911 a number of times and no one responded, or no phone was available, or there were no persons around who could have called for you.
1.3) Your Act Did Not Create an Even Greater Damage or Harm
Even if the emergency required immediate action on your part, your act cannot produce or lead to damage or a situation that is worse than the one being averted.
For instance, if a person was in dire need of a rare antidote to save him from death, you might use the defense to justify your burglarizing a facility at night when no one was present to obtain it.
However, if a security guard stops you and denies you entry to the building, you are not justified in fatally assaulting the guard.
1.4) You Had an Actual Belief That Your Act Was Necessary To Prevent The Threatened Harm or Evil
If you had an honest belief that your act was necessary to prevent even greater harm or disaster, then you may satisfy this element of the defense.
In many instances, there are reasonable and legal alternatives to committing a crime.
But if you were unaware of this alternative, then you might satisfy this element as well.
Example
You are in a car accident where the steering system failed and the car crashes into a tree, severely injuring your passenger who is losing blood and will die unless he gets immediate attention.
Both of your cell phones are damaged and not operable.
Unknown to you, there is a 7-11 a few hundred yards away.
You see a car approaching and wave the motorist down, but the driver refuses to help and says he has no phone and is going home.
You pull the driver out of the car and drive to town a few miles away, where you find a store and get someone to call 911.
Your act in stealing the car may be justified in preventing the death of your passenger. Although the 7-11 was only minutes away by foot, you honestly believed you had no alternative but to commit the act in order to save the life of your passenger.
1.5) Reasonable Person Would Have Believed Your Act Was Necessary
Your honest belief that you had no legal alternative or that you were preventing a greater harm or evil must be reasonable to an ordinary person.
1.6) You Had Not Created Or Substantially Contributed To The Emergency That Necessitated Your Act
If you created or substantially contributed to the situation that led to the emergency, then the necessity defense will fail.
Real Case Example
A defendant had one of his friends drive because he was intoxicated. However, his friend was also intoxicated as well and fell asleep at the wheel. The defendant took over and caused a fatal accident.
Difference Between Necessity Defense and Duress
The difference between the necessity and duress defenses is that in a necessity defense you intended to commit the crime but only to prevent greater harm or evil from occurring.
For the duress defense, you lacked criminal intent since you were under duress.
The duress defense has 3 elements:
- You were threatened or menaced by someone
- Someone demanded that you carry out the crime or the threatened harm would be carried out
- And, you had an honest and reasonable belief that your or someone else’s life would be in immediate jeopardy if you failed to carry out the crime
For the duress defense to apply, the harm threatened must have been immediate if you failed to carry it out. If not, then you may have had time to alert the authorities.
Elements of the Necessity Defense Include The Following:
- You were preventing significant bodily harm or an evil
- You had no adequate legal alternative to committing your act
- The act did not create an even greater danger or more damage than the one avoided
- You possessed an actual belief that your act was necessary to prevent the threatened harm or evil
- A reasonable person would also have believed that your act was necessary under the circumstances
- You had not created or substantially contributed to the emergency that necessitated your a
An important aspect of the defense is that each element must be proved by the defendant using the civil standard of preponderance of the evidence, or that it is more likely than not that each of the 6 elements has been proved.
1.1) What Is An Example Of Preventing Significant Bodily Harm or Evil?
At the time you committed the act, there must have been an emergency situation such as where someone’s life was in peril or at risk of imminent and substantial bodily harm, or that some significant damage would result unless you committed lesser harm or act to prevent it. source
CALCRIM No. 3403. Necessity
Judicial Council of California Criminal Jury Instructions (2022 edition)
3403. Necessity The defendant is not guilty of if (he/she) acted because of legal necessity. In order to establish this defense, the defendant must prove that:
- (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else);
- (He/She) had no adequate legal alternative;
- The defendant’s acts did not create a greater danger than the one avoided;
- When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil;
- A reasonable person would also have believed that the act was necessary under the circumstances; AND
- The defendant did not substantially contribute to the emergency.
The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.
New January 2006; Revised April 2008, September 2018
BENCH NOTES
Instructional Duty
The court must instruct on a defense when the defendant requests it and there is substantial evidence supporting the defense. The court has a sua sponte duty to instruct on a defense if there is substantial evidence supporting it and either the defendant is relying on it or it is not inconsistent with the defendant’s theory of the case.
When the court concludes that the defense is supported by substantial evidence and is inconsistent with the defendant’s theory of the case, however, it should ascertain whether defendant wishes instruction on this alternate theory. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389–390 [88 Cal.Rptr.2d 111]; People v. Breverman (1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Substantial evidence means evidence of necessity, which, if believed, would be sufficient for a reasonable jury to find that the defendant has shown the defense to be more likely than not.
Related Instructions
If the threatened harm was immediate and accompanied by a demand to commit the crime, the defense of duress may apply. (See CALCRIM No, 3402, Duress or Threats.) AUTHORITY
- Instructional Requirements. People v. Pena (1983) 149 Cal.App.3d Supp. 14 [197 Cal.Rptr. 264]; People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 [48 Cal.Rptr.2d 877]; People v. Kearns (1997) 55 Cal.App.4th 1128, 1135–1136 [64 Cal.Rptr. 2d 654].
- Burden of Proof. People v. Waters (1985) 163 Cal.App.3d 935, 938 [209 Cal.Rptr. 661]; People v. Condley (1977) 69 Cal.App.3d 999, 1008 [138 Cal.Rptr. 515].
- Difference Between Necessity and Duress. People v. Heath (1989) 207 Cal.App.3d 892, 897–902 [255 Cal.Rptr. 120].
RELATED ISSUES
Duress Distinguished Although a defendant’s evidence may raise both necessity and duress defenses, there is an important distinction between the two concepts. With necessity, the threatened harm is in the immediate future, thereby permitting a defendant to balance alternative courses of conduct. (People v. Condley (1977) 69 Cal.App.3d 999, 1009–1013 [138 Cal.Rptr. 515].)
Necessity does not negate any element of the crime, but rather represents a public policy decision not to punish a defendant despite proof of the crime. (People v. Heath (1989) 207 Cal.App.3d 892, 901 [255 Cal.Rptr. 120].) The duress defense, on the other hand, does negate an element of the crime. The defendant does not have the time to form the criminal intent because of the immediacy of the threatened harm. (Ibid.)
Abortion Protests The defense of necessity is not available to one who attempts to interfere with another person’s exercise of a constitutional right (e.g., demonstrators at an abortion clinic). (People v. Garziano (1991) 230 Cal.App.3d 241, 244 [281 Cal.Rptr. 307].)
Economic Necessity Necessity caused by economic factors is valid under the doctrine. A homeless man was entitled to an instruction on necessity as a defense to violating an ordinance prohibiting sleeping in park areas. Lack of sleep is arguably a significant evil and his lack of economic resources prevented a legal alternative to sleeping outside. (In re Eichorn (1998) 69 Cal.App.4th 382, 389–391 [81 Cal.Rptr.2d 535].)
Medical Necessity There is a common law and statutory defense of medical necessity. The common law defense contains the same requirements as the general necessity defense.
(See DEFENSES AND INSANITY CALCRIM No. 3403 947 Copyright Judicial Council of California People v. Trippet (1997) 56 Cal.App.4th 1532, 1538 [66 Cal.Rptr.2d 559].) The statutory defense relates specifically to the use of cannabis and is based on Health and Safety Code section 11362.5, the “Compassionate Use Act,” but see Gonzales v. Raich (2005) 545 U.S. 1 [125 S.Ct. 2195, 162 L.Ed.2d 1] [medical necessity defense not available].
SECONDARY SOURCES
3 Witkin and Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 58–65. 3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.05[2], 73.18 (Matthew Bender).