Filed 8/20/14 P. v. Vera CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

TONY PEREZ VERA, 

Defendant and Appellant. 

F066398 

(Super. Ct. No. F12905691) 

OPINION

THE COURT* 

 APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. 

Harrell, Judge. 

 Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Leanne Le Mon and Lewis A. 

Martinez, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 

 

* Before Poochigian, Acting P.J., Detjen, J. and Franson, J. 
2 

 A jury convicted appellant, Tony Perez Vera, of possession of a firearm by a felon 

(Pen. Code, § 29800, subd. (a)(1))1 and carrying a loaded firearm (§ 25850, subd. (a)). 

On appeal, Vera contends: (1) the court erred in admitting a prior conviction for 

impeachment purposes; and (2) the court committed instructional error. We affirm. 

FACTS 

The Prosecution Case 

 The prosecution evidence established that on July 30, 2012, Vincent Graves was 

working as a security guard for American A Plus Security. At approximately 8:15 p.m., 

Graves was on patrol at the San Ramon apartment complex in Fresno when he saw Jaime 

Reynaga, who was heavily intoxicated, facing and leaning against a wall. Graves 

approached Reynaga from Reynaga’s left side and asked if he was alright. When 

Reynaga “came off the wall” and turned towards him, Graves noticed Reynaga was 

holding a revolver in his right hand by the handle, pointing down. At that moment, Vera 

came through a door that leads to a parking garage, stepped between the men with his 

back towards Graves, and stated, “No, man, it is just a toy.”2 Vera then took Reynaga 

through a gate and both men left.3 Meanwhile, Graves called 911 and gave a description 

of both men.4

 Fresno Police Officer James Young heard a dispatch about a man with a gun and 

responded to the area. As Officer Young travelled north on Sixth Street, he saw Vera and 

 

1 All further statutory references are to the Penal Code unless otherwise indicated. 

2 It appeared to Graves that Vera was attempting to diffuse the situation. 

3 Vera testified that Graves approached Reynaga with a gun drawn (see post). The 

parties, however, agreed not to ask Graves any questions regarding whether he possessed 

a gun because there was an issue regarding Graves’s right to lawfully possess a firearm. 

4 Four buildings made up the apartment complex. During cross-examination, when 

asked whether anyone was outdoors during his encounter with Reynaga and Vera, Graves 

testified that he had encountered some residents on the other side of the first apartment 

building. However, after Reynaga and Vera left, he walked through the complex and did 

not see anyone on the other side. 
3 

Reynaga walking south on Sixth Street towards Shaw Avenue, several blocks south of the 

apartment complex. After passing them and making a U-turn, Young contacted Vera and 

Reynaga with his gun drawn and ordered them to get on the ground. The men became 

argumentative and told Officer Young that they had not done anything wrong and for 

Young to “get the [expletive] out of [there].” Eventually, however, both men sat down 

on the ground, although they continued to be argumentative and yell at the officer. 

Officer Young continued to tell the men to lay on the ground and when they finally 

complied, other officers arrived and helped handcuff both men. 

 A search of Reynaga did not uncover a gun. However, Officer Danny Kim 

searched Vera and found a Ruger revolver protruding from his waistband in front of his 

stomach.5 He then placed Vera under arrest for possessing the handgun. Vera had a 

strong odor of alcohol and his eyes were watery and bloodshot. 

 Graves was brought to the scene and identified Vera and Reynaga as the two men 

he encountered earlier at the apartment complex. 

The Defense Case 

 On July 30, 2012, at approximately 7:30 p.m., Vera took a bus to Reynaga’s 

apartment and found him outside of the apartment with two other people, heavily 

intoxicated. Reynaga told Vera to wait and walked away. After hearing yelling that 

appeared to be coming from the parking lot, Vera went to investigate and saw Reynaga 

with a gun with his finger on the trigger, leaning against a wall, and a security guard 

(Graves) pointing a gun at Reynaga. In an attempt to calm things down, Vera got in the 

middle of both men. Vera told Graves that the gun was just a toy, and he put his arm 

around Reynaga and walked away with him in order to extricate Reynaga from a 

confrontation that involved two guns. Vera led Reynaga south on Sixth Street intending 

to take Reynaga to Vera’s house. On the way, Vera was able to convince Reynaga to 

 

5 The gun had three live rounds and did not have a safety. 
4 

give him the gun and Vera placed it in his waistband. At that point, Vera continued 

walking with Reynaga, but no longer assisted him. He then saw a patrol car pass them 

and make a U-turn, but he did not attempt to flag down the patrol car. After the patrol car 

stopped, an officer exited the car and approached Vera and Reynaga with his gun drawn 

and pointed at them. Vera admitted that he and Reynaga yelled at the officer and that he 

repeatedly yelled that he had not done anything wrong. However, he denied telling any 

of the officers to get the “[expletive]” out of there. Vera did not tell the officer he had a 

gun on him because he knew the officer was going to see the gun anyway and Vera did 

not want him or anyone else to get shot. 

 Vera also testified that in June 2010, when he was 18 years old, he was convicted 

of felony possession of brass knuckles. 

DISCUSSION 

Impeachment with the Prior Conviction 

 Prior to the taking of testimony, the prosecutor moved in limine for the court to 

allow him to impeach Vera with his prior conviction for possession of a deadly weapon, 

i.e., brass knuckles. The court granted the motion over Vera’s objection. Vera contends 

the court erred in granting the prosecutor’s motion because possession of brass knuckles 

does not involve violence, menace, or threats and, thus, is not a crime of moral turpitude. 

We disagree. 

 “Subject to the trial court’s discretion under Evidence Code section 

352, California Constitution, article I, section 28, subdivision (f), 

‘authorizes the use of any felony conviction which necessarily involves 

moral turpitude, even if the immoral trait is one other than dishonesty. On 

the other hand, subdivision (d), as well as due process, forbids the use of 

convictions of felonies which do not necessarily involve moral turpitude.’ 

[Citation.] Thus a ‘prior conviction should only be admissible for 

impeachment if the least adjudicated elements of the conviction necessarily 

involve moral turpitude.’ [Citation.] Crimes involve moral turpitude when 

they reveal dishonesty, a ‘“general readiness to do evil,”’ ‘“bad character,”’ 

or ‘moral depravity.’ [Citation.] Such crimes involve an act of baseness, 

vileness, or depravity in the private and social duties which a person owes 

to others or to society in general, contrary to the accepted and customary 
5 

rule of right and duty between people.” (People v. Gabriel (2012) 206 

Cal.App.4th 450, 456 (Gabriel).) 

 “In [People v.] Garrett [(1987) 195 Cal.App.3d 795], the court held 

that the possession of an unregistered firearm was a crime of moral 

turpitude; the defendant had been convicted of a federal crime outlawing 

the possession of unregistered weapons of a nature similar to the weapons 

enumerated in section 12020,[6] which ‘outlaws a class of instruments 

normally used only for criminal purposes. [Citation.]’ [Citation.] The 

mere possession of such weapons indicates a readiness to do evil.” 

(Gabriel, supra, 206 Cal.App.4th at p. 457, italics added.) 

 In Gabriel, the court held that the defendant’s possession of an assault firearm was 

a crime of moral turpitude. (Gabriel, supra, 206 Cal.App.4th at p. 458.) In so holding, 

the court stated, “Just as possession of an unregistered firearm is a crime of moral 

turpitude because such weapons are normally used for criminal purposes, assault firearms 

are also typically used to commit crimes, and as the Legislature has outlined, cause 

greater harm to the public than general firearms, and thus possession of same should be 

considered a crime of moral turpitude.” (Ibid.) 

 Here, Vera possessed brass knuckles, a weapon also included in the class of 

weapons enumerated in former section 12020 that are normally used only for criminal 

purposes. Thus, as in People v. Garrett, supra, 195 Cal.App.3d 795 (Garrett) and 

Gabriel, mere possession of brass knuckles is a crime of moral turpitude because it 

evinces a willingness to do evil. 

 Vera contends possession of brass knuckles is not a crime of moral turpitude 

because they are far less dangerous than the firearms involved in Gabriel or Garrett and 

they can be used for noncriminal purposes such as tenderizing beef or as novelties for 

displaying. However, in each of those cases, the salient reason for the court’s ruling was 

that the firearm involved in each case was typically used for criminal purposes and not 

the degree of danger inherent in possessing each weapon. Further, although undoubtedly 

 

6 Section 12020, subdivision (a) (former section 12020), repealed by Stats. 2010, 

chapter 711, section 4, operative January 1, 2012, and reenacted as section 16920. 
6 

many illegal weapons can be used for noncriminal purposes and certainly most, if not all, 

can be displayed as novelties, this does not preclude the use of convictions for possessing 

these weapons for impeachment purposes. As noted by the court in People v. Thomas

(1988) 206 Cal. App.3d 689, “to preclude the use of a prior conviction for the purpose of 

impeachment if there is any conceivable set of facts under which the offense could have 

been committed free of moral blame would mean that no prior conviction could ever be 

used for impeachment.” (Id. at p. 698.) Thus, we conclude that the court did not err 

when it allowed the prosecutor to impeach Vera with his prior conviction for possessing 

brass knuckles. 

The Alleged Instructional Error 

 During the trial, the court denied defense counsel’s request to charge the jury on 

the defense of necessity as embodied in CALCRIM No. 3403.7 Vera contends the court 

erred in doing so because there was substantial evidence that supported charging the jury 

with this instruction. We disagree. 

 In a criminal trial, the court must give an instruction requested by a party if the 

instruction correctly states the law and relates to a material question upon which there is 

evidence substantial enough to merit consideration. (People v. Avena (1996) 13 Cal.4th 

 

7 CALCRIM 3403 provides: “The defendant is not guilty of <insert crime[s]> if 

(he/she) acted because of legal necessity. [¶] In order to establish this defense, the 

defendant must prove that: [¶] 1. (He/She) acted in an emergency to prevent a 

significant bodily harm or evil to (himself/herself/ [or] someone else); [¶] 2. (He/She) 

had no adequate legal alternative; [¶] 3. The defendant’s acts did not create a greater 

danger than the one avoided; [¶] 4. When the defendant acted, (he/she) actually 

believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A 

reasonable person would also have believed that the act was necessary under the 

circumstances; [¶] AND [¶] 6. 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. 
7 

394, 424.) A trial court is not required to instruct on theories that lack substantial 

evidentiary support. (People v. Miceli (2002) 104 Cal.App.4th 256, 267.) The defendant 

has the burden of proving the defense of necessity by a preponderance of the evidence. 

(People v. Heath (1989) 207 Cal.App.3d 892, 901 (Heath).) 

 In order to “justify an instruction on the defense of necessity, there must be 

evidence sufficient to establish that defendant violated the law (1) to prevent a significant 

evil, (2) with no adequate alternative, (3) without creating a greater danger than the one 

avoided, (4) with a good faith belief in the necessity, (5) with such belief being 

objectively reasonable, and (6) under circumstances in which he did not substantially 

contribute to the emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.) 

“Necessity does not negate any element of the crime, but represents a public policy 

decision not to punish such an individual despite proof of the crime.” (Heath, supra, 207 

Cal.App.3d at p. 901.) 

 The defense of necessity, in contrast to the defense of duress, has traditionally 

covered situations where physical forces beyond the defendant’s control rendered illegal 

conduct the lesser of two evils. (Heath, supra, 207 Cal.App.3d at p. 899.) “The defense 

of necessity generally recognizes that ‘“the harm or evil sought to be avoided by [the 

defendant’s] conduct is greater than that sought to be prevented by the law defining the 

offense charged.”’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100 (Coffman 

and Marlow), brackets in original.) 

 The necessity defense is available to a defendant if the actions he or she intended 

to engage in, and did engage in, were unlawful. (Coffman and Marlow, supra, 34 Cal.4th 

at p. 100.) The situation presented to the defendant must be of an emergency nature, 

threatening physical harm, and lacking an alternative legal course of action. (People v. 

Weber (1984) 162 Cal.App.3d Supp. 1, 5.) The standard of prejudice for failure to 

instruct on an affirmative defense has not yet been defined. (People v. Salas (2006) 37 

Cal.4th 967, 984.) 
8 

 Vera focuses his arguments on the alleged necessity for him to intervene when 

Graves confronted Reynaga at the apartment complex. The undisputed facts, however, 

showed that the unlawful possession of the gun by Vera occurred when he took 

possession of the gun from Reynaga as they walked down Sixth Street toward Shaw 

Avenue. However, there was no evidence that as Reynaga walked with Vera he acted in 

an aggressive or threatening manner or that he might use the gun against anyone, 

including Vera. Thus, there was no evidence of an emergency at that time that made it 

necessary for Vera to take possession of the gun from Reynaga. 

 Further, Vera had the opportunity to tell Officer Young that he had a gun and to 

give it to him when the officer first ordered him and Reynaga to get on the ground. 

Consequently, at that point any “necessity” for Vera to possess the firearm in order to 

“safely” dispose of it dissipated and Vera’s continued possession of the revolver, until 

another officer took the gun from Vera’s waistband, was unlawful. (Cf. CALJIC No. 

12.50 [“A person previously convicted of a felony does not violate [section] 12021 ... by 

being in possession of a firearm if: [¶] ... [¶] ... possession of such firearm was 

temporary and for a period no longer than that in which the necessity or apparent 

necessity to use it in self-defense continued; ...” italics added].) In either case, there was 

no factual basis for the court to charge the jury with the defense of necessity with respect 

to either of the two charges Vera was convicted of. 

 In any event, even if the court erred in failing to charge the jury with the necessity 

defense, the error was harmless beyond a reasonable doubt for several reasons. First, 

as noted above, there was no emergency when Vera took the gun from Reynaga. 

 Second, by removing Reynaga from the scene and not allowing Graves to detain 

and disarm him, Vera needlessly and recklessly created the “necessity” that resulted in 

him taking possession of the gun from Reynaga. Graves was performing his duties as a 

security guard when he encountered an armed and inebriated Reynaga. Further, Graves 

had the advantage over Reynaga because while Graves had his gun pointing at him, 
9 

Reynaga only held his gun by the handle, at his side, pointing down. At that point, 

Reynaga would have been forced to turn over the gun or face the prospect of serious 

injury. In either case, the danger to innocent parties was nonexistent or minimal because 

there were no bystanders in the immediate vicinity at the time. In contrast, Vera’s 

intervention took the advantage away from Graves and could have resulted in serious 

injury to any of the three men by triggering a fire fight. Thus, there was no need for Vera 

to remove Reynaga from the scene, and his unjustified conduct in doing so created the 

“necessity” that he claims permitted him to take possession of Reynaga’s revolver. 

 Third, Vera’s conduct belies the notion that in taking the gun away from Reynaga, 

he was motivated by a good faith belief that it was necessary to do so. When Vera 

managed to convince Reynaga to give him the gun, he made no effort to turn it over to 

law enforcement, to Graves, or some other responsible adult. Even though he saw 

Officer Young’s patrol car approaching him and Reynaga, he made no attempt to flag 

down the officer. Further, when first confronted by Young, instead of informing him he 

had a firearm, which he knew he was not entitled to possess because of his status as a 

felon, he joined Reynaga in repeatedly yelling at the officer that they had done nothing 

wrong and telling him to get the “[expletive]” out of there. 

 Moreover, Vera’s entire conduct in this matter strongly suggests that his motive 

for whisking Reynaga away from the confrontation with Graves was simply to help a 

friend by keeping him from being arrested. Given these circumstances, it was extremely 

unlikely that the jury would not have found Vera guilty of the two charges he was 

convicted of, even if the court had charged the jury on necessity as a defense. Thus, we 

conclude that any error in the court’s failure to charge the jury on necessity as a defense 

was harmless beyond a reasonable doubt. 

DISPOSITION 

 The judgment is affirmed.