Filed 3/19/14 P. v. Aspinwall CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

DEAN FRANCES ASPINWALL, 

Defendant and Appellant. 

 H039158 

 (Santa Clara County 

 Super. Ct. No. C1239867) 

STATEMENT OF THE CASE

 A jury convicted defendant Dean Francis Aspinwall of assault with a deadly 

weapon (Pen. Code, § 245, subd. (a)(1)) and hit and run driving causing property damage 

(Veh. Code, § 20002, subd. (a)). The trial court sentenced defendant to four years in 

prison. 

 Defendant now appeals from the judgment of conviction. He makes the following 

arguments on appeal: 1) the trial court erred in admitting his prior convictions for 

impeachment purposes, and, in the alternative, defense counsel was ineffective in failing 

to adequately object to the admission of the prior convictions; 2) the trial court erred in 

admitting evidence regarding a restraining order, and defense counsel rendered 

ineffective assistance in failing to object to the evidence pursuant to Evidence Code 

section 352; 3) the trial court erred in refusing to instruct the jury on necessity as a 

defense to the hit and run charge; and 4) cumulative error warrants reversal. 
2 

 As set forth below, we find no merit in defendant’s claims. We therefore will 

affirm the judgment of conviction. 

STATEMENT OF THE FACTS

The Prosecution’s Evidence 

 On the evening of August 24, 2012, defendant arrived at a parking lot located at 

the corner of Stevens Creek Boulevard and Northlake Drive in San Jose. The parking lot 

was frequented by homeless people who lived in vans and cars. Defendant, Dale 

Goldsmith, and Lahna Yosten were among the people who frequented the parking lot. 

 When defendant arrived at the parking lot, defendant told Goldsmith that 

defendant’s brother had obtained a restraining order against defendant. Defendant 

explained that his brother’s girlfriend had served him with the restraining order. 

Goldsmith testified that defendant was agitated and “pretty pissed off” about the 

restraining order. Defendant told Goldsmith that “it was time for payback.” Defendant 

retrieved a baseball bat from his van, and he walked away from the parking lot. He 

returned to the parking lot 45 minutes later, and he told Goldsmith that he had broken the 

windows of his brother’s girlfriend’s car. Goldsmith noticed that defendant’s hand was 

“cut up” and bleeding 

 Goldsmith began to walk away from defendant, and defendant asked whether 

Goldsmith had seen Joseph.1

 Goldsmith testified that Joseph was connected to 

defendant’s brother. Goldsmith explained that Joseph and defendant’s brother did work 

for each other, and that Joseph worked on cars for defendant’s brother. After asking 

Goldsmith about Joseph’s whereabouts, defendant drove his van across Stevens Creek 

Boulevard and parked the van. 

 1

 Joseph was referred to only by his first name at trial. None of the witnesses 

provided Joseph’s last name. 
3 

 Later that evening, defendant walked back to the parking lot. Joseph arrived at the 

parking lot, and defendant asked Joseph, “What do you have going with my brother?” 

Defendant threw a punch at Joseph, and the two men began to fight. Goldsmith pulled 

defendant and Joseph apart. Joseph began to walk away, and defendant yelled racial slurs 

at Joseph. Joseph’s half-brother, Tupac,2

 punched defendant and said he did not like 

defendant’s choice of language. Three or four other men joined in and punched and 

kicked defendant. Goldsmith broke up the fighting. 

 Defendant looked mad and determined, and he walked across Stevens Creek 

Boulevard to his van. He took a bat from his van, and he walked back toward the parking 

lot. Defendant hefted the bat over his shoulder and moved it around. Individuals in the 

parking lot grabbed tire irons, iron bars, and fireplace pokers. Four or five of the 

individuals approached defendant. Defendant backed up and went back to his van. 

 Defendant sat in the van’s driver’s seat for a few minutes. He then “gunned” the 

engine and drove across Steven’s Creek Boulevard toward the parking lot, driving over 

the center median. Tupac was standing on the sidewalk adjacent to the parking lot, and 

defendant drove up onto the sidewalk. Defendant drove on the sidewalk at a speed of 25 

to 30 miles per hour. He made a right-hand turn and accelerated into the parking lot. 

 Yosten’s car was parked in the parking lot, and Yosten was standing next to her 

car. Defendant turned his van towards the area where Yosten’s car was parked. He 

pointed his van in the direction of Yosten and her car, and he “headed straight towards” 

Yosten at a speed of 35 to 40 miles per hour. Defendant’s van “swerve[d] at the last 

second,” and it struck Yosten’s car. The impact threw Yosten to the ground 15 feet away 

from her car. She was unconscious, and her humerus was fractured. 

 2

 Like Joseph, none of the witnesses at trial provided Tupac’s last name. 
4 

 After defendant’s van struck Yosten’s car, defendant drove the van onto Stevens 

Creek Boulevard. He accelerated, and he drove up to Tupac’s parked van. While 

accelerating, defendant made a right-hand turn “directly into” the front of Tupac’s van. 

Defendant’s van “knocked” the front end of Tupac’s van onto the sidewalk. Defendant 

accelerated again, and his van “ran into” a parked dump truck. The dump trucked moved 

four to five feet, hitting the car parked in front of it. Defendant backed his van into the 

parking lot, and the van got stuck underneath a tree. He tried to get out of the van, and 

six or seven people ran toward him. Defendant was able to open one of the van’s doors, 

and he ran away. 

The Defense Evidence 

 Defendant was the only defense witness. He denied breaking the windows of his 

brother’s girlfriend’s car, he denied yelling racial slurs, he denied hitting Yosten’s van, 

and he denied hitting the dump truck. 

 Defendant admitted throwing a punch at Joseph. He testified that he was 

thereafter attacked by Tupac and other individuals in the parking lot, but he was able to 

break free and return to his van. After defendant escaped from the attack, he approached 

the parking lot with a bat because he wanted to “confront them all.” He was “upset” 

when people in the parking lot grabbed weapons, and he again returned to his van. He 

testified that he drove across the center median because he “wanted them to see [his] state 

of mind.” He admitted driving on the sidewalk, but only at a speed of three to five miles 

per hour. After driving on the sidewalk, he drove through the parking lot without hitting 

Yosten’s car. He explained that when he drove through the parking lot “nobody . . . was 

around,” and everyone who had been in the parking lot had “dispersed.” 

 After driving through the parking lot, defendant turned onto Stevens Creek 

Boulevard and revved his engine because he wanted to let everyone know that he was 

still there. He was “mad” that the men who had attacked him had left the area. He 
5 

accelerated to a speed of 35 to 40 miles per hour, and he made a right-hand turn. He lost 

control of his van and hit Tupac’s van. Defendant stepped out of his van and 

“immediately started to flee the scene” because he was afraid that “[s]ix black 

gentlemen” would attack him. He also fled because he believed police would come to the 

scene. 

 Defendant testified that he spoke with police after the incident, and that the 

version of events he provided to the police differed from his trial testimony. When 

defendant spoke to the police, he denied driving in the fashion that he had described at 

trial. He told the police that someone must have taken his van. 

 Defendant testified that he had suffered prior criminal convictions. He admitted a 

1992 conviction for misdemeanor “spousal violence,” a 1992 conviction for felony 

“spousal battery,” and a 2003 conviction for misdemeanor “brandishing a weapon.” 

DISCUSSION

I. Impeachment with Prior Convictions 

 Defendant contends that the judgment must be reversed because the trial court 

erroneously admitted his prior convictions for impeachment purposes. Specifically, he 

argues, “The trial court erred in allowing in these prior convictions since, as a matter of 

law, none of these constitute crimes involving moral turpitude.” In the alternative, he 

asserts that his trial counsel rendered ineffective assistance in failing to object to the 

admission of the prior convictions on the ground of lack of moral turpitude. We find no 

merit in defendant’s claims. 

A. Background 

 The prosecutor moved to impeach defendant with his misdemeanor domestic 

violence conviction (Pen. Code, § 273.5, subd. (a)), his felony domestic violence 
6 

conviction (Pen. Code, § 273.5, subd. (a)), and his misdemeanor brandishing conviction 

(Pen. Code, §417, subd. (a)(1)). Defense counsel conceded that all of the prior 

convictions involved “moral turpitude under the law.” Defense counsel objected to the 

admission of the prior convictions, however, on the ground that they were remote in time 

and impermissibly tended to show a propensity for violence. The trial court ruled that the 

convictions were admissible to impeach defendant’s testimony. 

B. Defendant Has Not Established Trial Court Error 

“A general objection to the admission or exclusion of evidence, or one based on a 

different ground from that advanced at trial, does not preserve the claim for appeal.” 

(People v. Marks (2003) 31 Cal.4th 197, 228 (Marks).) Thus, because defense counsel 

never argued that the prior convictions lacked moral turpitude, defendant’s claim that the 

trial court erred in failing to exclude the convictions due to their lack of moral turpitude is 

not cognizable on appeal. Indeed, given that defense counsel conceded that the 

convictions involved moral turpitude, we cannot now conclude that the trial court erred in 

failing to deem the convictions lacking in moral turpitude. (See People v. Partida (2005) 

37 Cal.4th 428, 435 [a defendant “cannot argue the court erred in failing to conduct an 

analysis it was not asked to conduct”].) Defendant therefore has not established that the 

trial court erred in failing to exclude the prior convictions due to the absence of moral 

turpitude. (See Marks, supra, 31 Cal.4th at pp. 228-229 [where defense counsel objected 

to the admission of a prior conviction for impeachment purposes, but did not assert that 

the conviction lacked moral turpitude, the defendant’s claim that the prior conviction was 

inadmissible due to lack of moral turpitude was not cognizable on appeal].) 

 

C. Defense Counsel Did Not Render Ineffective Assistance 

 The defendant bears the burden of proving ineffective assistance of counsel. 

(People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) To obtain reversal due to 
7 

ineffective assistance, a defendant must first show “that defense counsel’s performance 

fell below an objective standard of reasonableness, i.e., that counsel’s performance did 

not meet the standard to be expected of a reasonably competent attorney.” (People v. 

Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham); Strickland v. Washington

(1984) 466 U.S. 668, 688 (Strickland).) Second, the defendant must show that there is “a 

reasonable probability that defendant would have obtained a more favorable result absent 

counsel’s shortcomings.” (Cunningham, supra, 25 Cal.4th at p. 1003.) 

 “A reviewing court will indulge in a presumption that counsel’s performance fell 

within the wide range of professional competence and that counsel’s actions and 

inactions can be explained as a matter of sound trial strategy.” (Carter, supra, 30 Cal.4th 

1166, 1211; see also People v. Witcraft (2011) 201 Cal.App.4th 659, 664.) Where the 

record on appeal “does not show the reason for counsel’s challenged actions or 

omissions, the conviction must be affirmed unless there could be no satisfactory 

explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) 

 “The object of an ineffectiveness claim is not to grade counsel’s performance. If it 

is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient 

prejudice, which we expect will often be so, that course should be followed.” 

(Strickland, supra, 466 U.S. at p. 697.) 

 Here, defense counsel was not deficient in failing to argue that defendant’s 

domestic violence convictions were inadmissible due to their lack of moral turpitude. 

There was a satisfactory explanation for his failure to make such an objection. Domestic 

violence convictions pursuant to Penal Code section 273.5 necessarily involve moral 

turpitude and are thus admissible for impeachment purposes. (People v. 

Rodriguez (1992) 5 Cal.App.4th 1398, 1402; see also Donley v. Davi (2009) 180 

Cal.App.4th 447, 461 [a misdemeanor violation of Penal Code section 273.5 “is a crime 

of moral turpitude as a matter of law”]; 3 Witkin, Cal. Evidence (5th ed. 2012) 
8 

Presentation at Trial § 318, p. 447 [a Penal Code section 273.5 conviction involves moral 

turpitude].) Defense counsel therefore was not deficient in failing to seek exclusion of 

defendant’s Penal Code section 273.5 domestic violence convictions on the ground that 

they lacked moral turpitude.3

 (See People v. Bradley (2012) 208 Cal.App.4th 64, 90 

[“Failure to raise a meritless objection is not ineffective assistance of counsel.”].) 

 Nor did defense counsel render ineffective assistance in failing to argue that 

defendant’s brandishing conviction was inadmissible due to a lack of moral turpitude. 

Defendant has failed to show that he was prejudiced by the admission of that conviction. 

Defendant’s credibility was significantly damaged, notwithstanding the admission of his 

brandishing conviction. Defendant admitted that the version of events he provided to 

police was completely different from the version of events he described at trial. There 

were many inconsistencies in defendant’s testimony,4

 and the trial court found that 

defendant’s testimony was “not . . . credible in almost every respect.” Additionally, as 

 3

 In support of his claim that defense counsel should have made a moral turpitude 

objection to the domestic violence convictions, defendant cites a Ninth Circuit case, 

Morales-Garcia v. Holder (9th Cir. 2009) 567 F.3d 1058 (Morales-Garcia). MoralesGarcia held that a Penal Code section 273.5 conviction is not a crime of moral turpitude 

for federal immigration purposes. (Id. at p. 1060.) Defendant’s reliance on MoralesGarcia is unavailing. The decisions of intermediate federal appellate courts “are not 

binding on state courts.” (In re Roderick (2007) 154 Cal.App.4th 242, 307.) Thus, 

Morales-Garcia in no way requires us to conclude that defense counsel rendered 

ineffective assistance in failing to make a moral turpitude objection to the admission of 

defendant’s domestic violence convictions. 

 4

 We note some of the inconsistencies in defendant’s testimony. Defendant 

repeatedly testified that no one was at the scene when he struck Tupac’s van, yet he 

explained that he fled after striking the van because he feared individuals at the scene 

would attack him. He repeatedly testified that he was “calm” during the incident, but he 

also described his mood as “agitated” and “mad.” He insisted that he drove safely during 

the entire incident, but he admitted that it was not safe to drive on the sidewalk. He 

denied striking Yosten’s car, but he was unable to explain the cause of the extensive 

damage to her car. 
9 

noted above, defendant’s domestic violence convictions involved moral turpitude and 

were admissible to impeach the credibility of his testimony. Thus, even if the 

brandishing conviction had not been admitted, defendant’s credibility still would have 

been extremely impaired. Defendant therefore has failed to show the requisite reasonable 

probability of a more favorable result absent counsel’s shortcomings. We therefore must 

conclude that counsel did not render ineffective assistance in failing to make a moral 

turpitude objection to the brandishing conviction. (See generally Cunningham, supra, 25 

Cal.4th at p. 1003 [ineffective assistance of counsel is established only where there is “a 

reasonable probability that defendant would have obtained a more favorable result absent 

counsel’s shortcomings”].) 

II. Evidence Regarding the Restraining Order 

Defendant contends that the judgment must be reversed because the trial court 

erroneously admitted evidence that his brother had obtained a restraining order against 

him. Specifically, he asserts that the trial court erred in refusing to exclude the evidence 

as irrelevant. Defendant additionally contends that his trial counsel rendered ineffective 

assistance in failing to seek exclusion of the evidence pursuant to Evidence Code 

section 352. We conclude that the trial court did not err, and that trial counsel did not 

render ineffective assistance. 

A. Background 

Before trial, defense counsel moved to exclude evidence that defendant had been 

served with a restraining order that prevented him from contacting his brother. Defense 

counsel argued the restraining order was irrelevant because there was no “direct 

nexus . . . between the restraining order and this case.” 

 After reviewing the preliminary hearing transcript, the trial court ruled that the 

restraining order evidence was relevant and admissible. The court explained: “Well, it 

seems like in reviewing the prelim testimony of Mr. Goldsmith, that the defendant—the 
10 

first thing that happened was that the defendant told Mr. Goldsmith something about the 

restraining order and that he wanted to talk to Joseph . . . . [T]he defendant apparently 

saw [Joseph], came up to him, and asked Joseph what he and his brother had going on 

and started swinging on him. And from then on it just continues.” The court noted that 

defendant’s act of punching Joseph instigated a continuous, widespread altercation that 

culminated with defendant driving into Yosten’s car and other parked vehicles. The court 

concluded, “So it seems like all of that was one continuous action. And I don’t think it 

would make any sense not to allow the jury to hear what precipitated . . . the charged 

conduct because otherwise it’s just not going to make any sense.” 

 B. The Trial Court Did Not Abuse its Discretion 

 “As a general rule, all relevant evidence is admissible.” (People v. Mendoza 

(1998) 18 Cal.4th 1114, 1136.) “Evidence is relevant if it has any tendency in reason to 

prove or disprove a material issue.” (Ibid.) “The test of relevance is whether the 

evidence tends ‘ “logically, naturally, and by reasonable inference” to establish material 

facts such as identity, intent, or motive.’ ” (People v. Scheid (1997) 16 Cal.4th 1, 13.) 

 “The trial court is vested with wide discretion in determining the relevance of 

evidence.” (People v. Babbitt (1988) 45 Cal.3d 660, 681.) “The [trial] court, however, 

has no discretion to admit irrelevant evidence.” (Ibid.) An appellate court reviews a trial 

court’s ruling on the relevance of evidence for abuse of discretion. (Id. at pp. 682-683.) 

 Here, contrary to defendant’s assertion, the trial court did not abuse its discretion 

in refusing to exclude the restraining order evidence as irrelevant. The restraining order 

was relevant because it constituted the motive for defendant’s initial confrontation with 

Joseph: defendant confronted Joseph, who associated with defendant’s brother, because 

defendant was angry about the restraining order. Defendant’s act of confronting Joseph 

instigated an altercation between defendant and the people in the parking lot, and that 

widespread altercation concluded with defendant driving his van into Yosten’s car and 
11 

the other parked vehicles. The evidence regarding the restraining order was thus relevant 

to show why defendant initiated a course of conduct that culminated in his commission of 

the charged crimes. As the trial court noted, the charged conduct was “not going to make 

any sense” unless the jury heard evidence regarding defendant’s motive for engaging in 

the initial confrontation with Joseph. We therefore conclude that the trial court did not 

abuse its discretion in refusing to exclude the restraining order evidence as irrelevant. 

(See generally People v. Bivert (2011) 52 Cal.4th 96, 116-117 [evidence is relevant and 

thus admissible if it tends to establish motive].) 

 C. Defense Counsel Did Not Render Ineffective Assistance 

 Defendant contends that defense counsel rendered ineffective assistance in failing 

to seek exclusion of the restraining order evidence pursuant to Evidence Code 

section 352.5

 Defendant additionally asserts that defense counsel rendered ineffective 

assistance in failing to make an Evidence Code section 352 objection to the evidence that 

defendant broke his brother’s girlfriend’s car windows. 

 Defendant’s ineffective assistance claim fails because he has not shown that he 

was prejudiced by defense counsel’s failure to make an Evidence Code section 352 

objection. (See Strickland, supra, 466 U.S. at p. 697 [an ineffective assistance claim fails 

if the defendant does not establish prejudice].) Defendant theorizes that the evidence 

regarding the restraining order and the broken car windows destroyed the credibility of 

his testimony, and that he would have achieved a more favorable verdict if defense 

counsel had made a successful Evidence Code section 352 objection. Defendant’s theory 

is unconvincing. Defendant’s credibility was significantly damaged, regardless of the 

evidence concerning the restraining order and the broken windows. As discussed in part 

 5

 Evidence Code section 352 states: “The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.” 
12 

I.C., ante, defendant admitted that the version of events he provided to police was 

completely different from the version of events he described at trial, there were many 

inconsistencies in defendant’s testimony, the trial court found that defendant’s testimony 

was not credible, and defendant’s domestic violence convictions impeached his 

testimony. Thus, even if defense counsel had succeeded in excluding the evidence 

regarding the restraining order and the broken windows, the jury would not have been apt 

to credit defendant’s testimony. Defendant therefore has failed to establish the requisite 

reasonable probability of a more favorable result absent counsel’s shortcomings, and we 

must conclude that counsel did not render ineffective assistance in failing to make an 

Evidence Code section 352 objection. (See generally Cunningham, supra, 25 Cal.4th at 

p. 1003 [to establish ineffective assistance, the defendant must show that there is “a 

reasonable probability that defendant would have obtained a more favorable result absent 

counsel’s shortcomings”].) 

III. Necessity Instruction 

Defendant contends that his hit and run conviction must be reversed because the 

trial court refused to instruct pursuant to CALCRIM No. 3403, which articulates the 

defense of necessity. Specifically, he asserts that the trial court was required to give 

CALCRIM No. 3403 as a defense to the hit and run charge because there was substantial 

evidence that he ran away from the scene “out of necessity in fear that the group in the 

parking lot was intending on attacking him.” We conclude that there was not substantial 

evidence to support a necessity instruction, and that the trial court therefore did not err in 

refusing to instruct pursuant to CALCRIM No. 3403. 

A. Background 

Defense counsel requested that the trial court instruct pursuant to CALCRIM 

No. 3403 as a defense to the hit and run charge. The court refused to give CALCRIM 

No. 3403. The court explained: “And so there are six elements that the defense has to 
13 

prove, and one of them is that the defendant did not substantially contribute to the 

emergency. It seemed to me, based upon the evidence that I heard, that that wasn’t going 

to be able to be shown and the Court has to instruct on the defense when there is 

substantial evidence supporting the defense. And, frankly, I just don’t think there was 

any substantial evidence supporting that defense, and that’s why I didn’t give it.” 

 B. The Trial Court Did Not Err 

 “A defendant is entitled to instruction on request on any defense for which 

substantial evidence exists.” (People v. Miceli (2002) 104 Cal.App.4th 256, 267.) 

“However, the trial court need give a requested instruction concerning a defense only if 

there is substantial evidence to support the defense.” (Ibid.) “On review, we determine 

independently whether substantial evidence to support a defense existed.” (People v. 

Shelmire (2005) 130 Cal.App.4th 1044, 1054.) 

 “ ‘The necessity defense is very limited and depends on the lack of a legal 

alternative to committing the crime. It excuses criminal conduct if it is justified by a 

need to avoid an imminent peril and there is no time to resort to the legal authorities or 

such resort would be futile.’ [Citation.]” (People v. Verlinde (2002) 100 Cal.App.4th 

1146, 1164.) The defense of necessity cannot be invoked “when it is the culpable 

conduct of the actor that creates or contributes to the atmosphere of necessity.” (Id. at 

p. 1165.) 

 “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, 

italics added.) 
14 

 CALCRIM No. 3403 articulates the defense of necessity. CALCRIM No. 3403 

states, in pertinent part: “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.” (CALCRIM No. 3403, 

italics added.) 

 Here, defendant theorizes that instruction pursuant to CALCRIM No. 3403 was 

required because the evidence showed that he ran from the scene after hitting the parked 

vehicles due to fear that he would be imminently attacked by angry individuals in the 

parking lot.6

 We are not persuaded by defendant’s theory and conclude that there was not 

substantial evidence to support CALCRIM No. 3403. 

 Although defendant testified that he feared imminent attack after he hit Tupac’s 

van, the evidence failed to show that defendant did not substantially contribute to that 

emergency. Rather, both the prosecution’s evidence and the defense evidence established 

that defendant substantially contributed to the emergency situation that prompted him to 

flee the scene. The prosecution’s evidence showed that defendant attacked Joseph, 

 6

 Defendant was convicted of hit and run driving in violation of Vehicle Code 

section 20002, subdivision (a). Vehicle Code section 20002, subdivision (a) states, in 

pertinent part: “The driver of any vehicle involved in an accident resulting only in 

damage to any property, including vehicles, shall immediately stop the vehicle at the 

nearest location that will not impede traffic or otherwise jeopardize the safety of other 

motorists.” Defendant contends that an instruction on the defense of necessity would 

have excused his failure to stop after the collision with the parked vehicles. 
15 

approached the individuals in the parking lot while wielding a bat, quickly drove his van 

on the sidewalk on which Tupac was standing, pointed his van at Yosten and accelerated 

“straight towards” her, and drove his van “directly into” Tupac’s parked van. The 

defense evidence showed that defendant threw the first punch at Joseph, approached the 

individuals in the parking lot with a bat in order to “confront them all,” drove his van 

across the center median to show the individuals in the parking lot his “state of mind,” 

revved his engine to show everyone that he was “mad,” and recklessly made a turn at a 

high rate of speed before losing control of his van and hitting Tupac’s van. Thus, under 

both the prosecution’s evidence and the defense evidence, defendant engaged in 

confrontational conduct likely to incite anger and a forcible response from the individuals 

in the parking lot. The evidence therefore established that defendant created the 

emergency situation that prompted him to flee. We accordingly conclude that there was 

no substantial evidence that defendant did not substantially contribute to the emergency, 

and that the trial court did not err in refusing to give CALCRIM No. 3403. (See 

generally Verlinde, supra, 100 Cal.App.4th at p. 1165 [a necessity instruction was not 

required where the evidence established that the defendant created the emergency].) 

IV. Cumulative Error 

Defendant contends that cumulative error warrants reversal. In assessing a claim 

of cumulative error, the critical question is “whether defendant received due process and 

a fair trial.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) As discussed 

above, defendant has failed to show any errors in the trial court proceedings. As there 

were no errors that could have impacted his due process and fair trial rights, there was no 

cumulative error in this case. 
16 

DISPOSITION

The judgment is affirmed. 

 ______________________________________ 

 RUSHING, P.J. 

WE CONCUR: 

____________________________________ 

PREMO, J. 

____________________________________ 

MÁRQUEZ, J.