People v. Hsiung

Filed 5/27/26 (unmodified opn. attached; second modification) CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, A169697 Plaintiff and Respondent, (Sonoma County v. Super. Ct. No. SCR721464) WAYNE HANSEN HSIUNG, ORDER MODIFYING OPINION AND DENYING REHEARING Defendant and Appellant. NO CHANGE IN JUDGMENT THE COURT:* It is ordered that the opinion filed herein on April 30, 2026, be modified as follows: 1. At page 29, in the first paragraph of part II, section C, of the discussion, the last sentence, “In any event, defendant is correct,” is deleted and replaced with: “In any event, we agree with defendant that reversal is required because the court’s error impacted his constitutional rights. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)” 2. At page 31, in the last paragraph of part II, section C, of the discussion, the inception citation to Chapman v. California is deleted and replaced with a supra citation: “(Chapman v. California, supra, 386 U.S. at p. 24.)” * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III of the discussion. * Jackson, P. J.; Simons, J.; Burns, J. 1  Respondent’s petition for rehearing, filed on May 15, 2026, is denied. There is no change in the judgment. Dated: , P. J. A169697/People v. Wayne Hansen Hsiung 2 A169697/People v. Wayne Hansen Hsiung Trial Court: Superior Court of the County of Sonoma Trial Judge: Laura Passaglia Counsel: Justin F. Marceau for Defendant and Appellant. Law Office of Colleen Flynn and Colleen Flynn for Animal Justice as Amicus Curiae for Defendant and Appellant. Law Office of Kevin G. Little and Kevin Gerard Little for Professor Jens Bülte as Amicus Curiae for Defendant and Appellant. Law Office of Shakeer Rahman and Shakeer Rahman; Shaila Nathu; Shayana Kadidal and Jess Vosburgh for Center for Constitutional Rights, American Civil Liberties Foundation of Northern California, and National Lawyers Guild as Amici Curiae for Defendant and Appellant. Summa and Megan A. Maitia for Climate Defense Project as Amicus Curiae for Defendant and Appellant. Matthew Liebman for Law Professors Matthew Liebman, Randall S. Abate, Zsea Bowmani, Taimie L. Bryant, David N. Cassuto, Luis E. Chiesa, Rebecca Critser, David A. Dana, Michael C. Dorf, Pamela D. Frasch, Iselin M. Gambert, Kathy Hessler, Heidi M. Hurd, Paul A. Locke, Janice Nadler, Martha C. Nussbaum, Fran Ortiz, Jessica Rubin, Joan Schaffner, Sarah Schindler, Vanessa Shakib, Laurence H. Tribe, Bruce Wagman, and Delcianna J. Winders as Amici Curiae for Defendant and Appellant. Christopher Berry for Nonhuman Rights Project, Inc., as Amicus Curiae for Defendant and Appellant. 3 Advancing Law for Animals and Vanessa Shakib for Professor Kristen Stilt as Amicus Curiae for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Bridget Billeter and Kelly A. Styger, Deputy Attorneys General, for Plaintiff and Respondent. 4 Filed 5/12/26 (unmodified opn. attached) CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, A169697 Plaintiff and Respondent, (Sonoma County v. Super. Ct. No. SCR721464) WAYNE HANSEN HSIUNG, ORDER MODIFYING OPINION AND DENYING REHEARING Defendant and Appellant. NO CHANGE IN JUDGMENT THE COURT:* It is ordered that the opinion filed herein on April 30, 2026, be modified as follows: At page 37, new footnote 13 is added after the opinion’s last sentence, “As such, his challenge fails,” and says, “For the first time in a petition for rehearing, defendant raised several new arguments as to why the savings clause in section 602, subdivision (o) does not cure the statute’s alleged constitutional defect. For the purposes of this appeal, defendant forfeited these arguments. (Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal.App.5th 85, 109.)” Appellant’s petition for rehearing, filed on May 8, 2026, is denied. There is no change in the judgment. Dated: 05/12/2026 Jackson, P.J. , P. J. * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III of the discussion. * Jackson, P. J.; Simons, J.; Burns, J. 1 A169697/People v. Wayne Hansen Hsiung Trial Court: Superior Court of the County of Sonoma Trial Judge: Laura Passaglia Counsel: Justin F. Marceau for Defendant and Appellant. Law Office of Colleen Flynn and Colleen Flynn for Animal Justice as Amicus Curiae for Defendant and Appellant. Law Office of Kevin G. Little and Kevin Gerard Little for Professor Jens Bülte as Amicus Curiae for Defendant and Appellant. Law Office of Shakeer Rahman and Shakeer Rahman; Shaila Nathu; Shayana Kadidal and Jess Vosburgh for Center for Constitutional Rights, American Civil Liberties Foundation of Northern California, and National Lawyers Guild as Amici Curiae for Defendant and Appellant. Summa and Megan A. Maitia for Climate Defense Project as Amicus Curiae for Defendant and Appellant. Matthew Liebman for Law Professors Matthew Liebman, Randall S. Abate, Zsea Bowmani, Taimie L. Bryant, David N. Cassuto, Luis E. Chiesa, Rebecca Critser, David A. Dana, Michael C. Dorf, Pamela D. Frasch, Iselin M. Gambert, Kathy Hessler, Heidi M. Hurd, Paul A. Locke, Janice Nadler, Martha C. Nussbaum, Fran Ortiz, Jessica Rubin, Joan Schaffner, Sarah Schindler, Vanessa Shakib, Laurence H. Tribe, Bruce Wagman, and Delcianna J. Winders as Amici Curiae for Defendant and Appellant. Christopher Berry for Nonhuman Rights Project, Inc., as Amicus Curiae for Defendant and Appellant. 2 Advancing Law for Animals and Vanessa Shakib for Professor Kristen Stilt as Amicus Curiae for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Bridget Billeter and Kelly A. Styger, Deputy Attorneys General, for Plaintiff and Respondent. 3 Filed 4/30/26 (unmodified opinion) CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, A169697 v. WAYNE HANSEN HSIUNG, (Sonoma County Defendant and Appellant. Super. Ct. No. SCR721464) This appeal relates to the right of a criminal defendant to present a complete defense to the jury, including the right to present evidence regarding the defendant’s misconceptions regarding the legality of his or her conduct when the charged offenses are specific intent crimes. Defendant, Wayne Hansen Hsiung, was convicted on two counts of trespass and one count of conspiracy to commit trespass relating to his involvement in animal rights protests at two Sonoma County poultry farms. On appeal, defendant seeks reversal of these counts, arguing: (1) the trial court prejudicially erred by finding his defense of necessity legally unavailable; (2) the court deprived him of his constitutional right to present a complete defense by refusing to instruct the jury or permit him to present evidence or argument related to his good faith mistake of law that his actions * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III of the discussion. 1 were legally justified under the necessity defense; (3) Penal Code section 31,1 the aiding and abetting statute on which the jury was instructed, violates the First Amendment to the extent it criminalizes a defendant’s “promotion” of another person’s illegal conduct; (4) section 602, subdivision (o), the basis of count 2, trespass by refusing or failing to leave property, violates the First Amendment as a content-based restriction on speech; (5) the court prejudicially erred by failing to adequately respond to a jury question regarding the meaning of “promote”; and (6) the prosecutor denigrated his de facto religious beliefs in ethical veganism and animal rights to the jury. We reject all these arguments except one. We agree with defendant that the trial court erroneously limited his presentation of evidence to the jury related to his two-prong mistake of law defense. Accordingly, we reverse count 1, conspiracy to commit trespass by refusing to leave private property (§§ 182, subd. (a)(1), 602, subd. (o)), and count 4, trespass with intent to interfere with a lawful business (§ 602, subd. (k)), and remand for further proceedings as to these counts. We affirm the judgment as to count 2 (§ 602, subd. (o)). FACTUAL AND PROCEDURAL BACKGROUND Defendant cofounded a grassroots animal rights network called Direct Action Everywhere, or DxE. Through DxE, defendant and other animal rights advocates engaged in “open rescues,” a nonviolent tactic in which an individual or group concerned about animal suffering enters private commercial property without permission for the purpose of documenting the conditions of animals confined therein and, if necessary, rescues animals deemed to be in urgent need of veterinary care. The advocates then shared information, including photographs and video footage, relating to the 1 Unless otherwise stated, all statutory citations are to the Penal Code. 2 conditions found during the rescues with the public and law enforcement in order to address the suspected animal suffering. I. The Amended Information. On September 26, 2023, an amended information was filed charging defendant with felony conspiracy to commit trespass by refusing to leave private property (§§ 182, subd. (a)(1), 602, subd. (o); count 1); misdemeanor trespass by refusing to leave private property (§ 602, subd. (o); count 2); felony conspiracy to commit trespass with intent to interfere with a lawful business (§§ 182, subd. (a)(1), 602, subd. (k); count 3); and misdemeanor trespass with intent to interfere with a lawful business (§ 602, subd. (k); count 4). These charges arose from two open rescue incidents involving defendant and his DxE colleagues at poultry farms in Sonoma County. The first incident took place at Sunrise Farms on May 29, 2018, and the second incident took place at Reichardt Duck Farm on June 3, 2019. II. The Trial. Trial began on September 8, 2023, and lasted several weeks. Defendant represented himself in propria persona. Many witnesses were called, including representatives from Sunrise Farms and Reichardt Duck Farm, DxE activists, local law enforcement officials, legal professionals, and veterinarians. Defendant testified in his own defense. The following evidence was presented. A. Sunrise Farms. Sunrise Farms (Sunrise) is a privately owned commercial egg farm in Sonoma County with a flock of around 800,000 hens as of 2018. Sunrise is not open to the general public. 3  In July 2016, defendant and his DxE colleagues began investigating Sunrise due to concerns that Sunrise was not complying with animal welfare laws. On several occasions, defendant entered Sunrise through unlocked doors and observed animals that he believed were suffering. In photographs and video footage, defendant documented apparently sick, injured, immobile, and severely neglected animals. Defendant shared his information with several individuals, including a veterinarian, Dr. Sherstin Rosenberg, and a criminal law professor, Hadar Aviram. Dr. Rosenberg confirmed to defendant that, in her opinion, the video footage showed severe overcrowding at the farm as well as animals suffering from visible illnesses or injuries that made it difficult for them to access food and water. Professor Aviram agreed. She provided defendant a written opinion on May 17, 2018, offering legal justifications for taking actions to assist the animals at Sunrise.2 Defendant and his colleagues also took their concerns to state and local law enforcement agencies, including the Sonoma County District Attorney’s Office and Sheriff’s Office. However, the agencies took no action. Ultimately, defendant concluded the only way to address what he considered an “ongoing emergency” at Sunrise was to take more direct action. Accordingly, defendant organized an open rescue on May 29, 2018, the last day of the multiday 2018 Animal Liberation Conference, held in the San 2 As we discuss post, the trial court excluded or limited portions of Professor Aviram’s testimony regarding the fact that she advised defendant, albeit mistakenly, that he and his colleagues were legally justified in trespassing at Sunrise to prevent animals from suffering imminent harm. The court did, however, permit Professor Aviram to testify regarding her more limited opinion that a statute (§ 597e) authorized them to trespass in order to provide food or water to those animals that had been deprived of food or water for over 12 hours. 4 Francisco Bay Area. During this open rescue incident, defendant and several hundred DxE activists engaged in various forms of protest, including entering private barns, recording and photographing animal conditions, locking people to farm machinery, rescuing animals that appeared to be severely injured or distressed, and holding a candlelight vigil just outside the property. Defendant carried with him Professor Aviram’s written opinion that their actions were legally justified to prevent ongoing animal suffering, as well as his prior photographs and footage reflecting the animals’ condition. Michael Weber, an owner of Sunrise, testified that, when he arrived at the farm during the incident, he told the group to leave, insisting they had no right to be there. Defendant referred him to Professor Aviram’s opinion and insisted their actions were justified. Defendant, with numerous followers, then walked directly passed Weber toward a large barn, despite Weber’s protestations that they posed a biosecurity risk to his animals. A DxE activist nonetheless opened the barn door, prompting a struggle between farm employees and activists as the employees tried to close the door. A co-owner of the farm repeatedly directed the activists to leave, warning they were on private property. They did not. Instead, they headed toward a second barn housing more chickens. Once there, the activists entered and removed several chickens, insisting they had a right to be there to save the chickens. Eventually, law enforcement arrived and defendant and many others were arrested. The entire incident was live streamed and shared on social media. B. Reichardt Duck Farm. Since approximately 2014, DxE activists were also concerned about the treatment of animals on Reichardt Duck Farm (Reichardt), a privately owned commercial duck farm in Sonoma County. Although Reichardt was not open 5 to the public, the activists collected information regarding the farm’s practices through public record requests and by entering the premises to document what they believed to be ducks suffering from injury and disease and without access to food or water. Defendant was not involved in the activists’ investigation of Reichardt; however, he was aware of it. He shared with Dr. Rosenberg and a former federal prosecutor, Bonnie Klapper, video footage taken on Reichardt property that he obtained from the activists. Dr. Rosenberg opined that the footage indeed showed animals that appeared to be suffering from severe injuries or illnesses. Klapper, in turn, opined that the activists would be legally justified in entering the property to aid or rescue the ducks and to provide them food and water.3 On June 3, 2019, soon after defendant obtained the opinions of Dr. Rosenberg and Klapper, and during the Animal Liberation Conference in Berkeley, activists affiliated with DxE entered Reichardt and rescued several ducks, bringing them to a veterinarian to receive food, water, and medical treatment. Some of the activists also locked themselves to Reichardt’s front gate. Defendant, who disagreed with using lockdowns as an activist tool, did not participate in the activists’ June 3, 2019 open rescue incident. He did, however, provide them with legal advice and guidance while they were planning it. During the incident, the activists used bike locks to lock themselves by the neck to the farm’s processing line. When the line began moving unexpectantly, farm workers were able to stop it before anyone was 3 Discussed post, the trial court excluded evidence that Klapper opined that the defense of necessity provided a legal justification for defendant’s and defendant’s colleagues’ actions. 6 seriously injured. However, the line was damaged as a result. The activists then formed a human blockade to prevent ingress and egress from the farm while a few individuals removed duck carcasses from the property. Later that day, defendant appeared outside the farm to lead a peaceful vigil, during which he voiced support for the other activists. Defendant encouraged people to provide, and did provide, food and water to those who needed it, including law enforcement and farm workers. He discussed his belief, based on the opinions of Klapper and others, that their actions were lawful. He also tried to encourage law enforcement to investigate in exchange for the activists’ leaving the area. He was again arrested at the scene. C. Theories and Evidence Excluded from Trial. The trial court made several rulings before and during trial that impacted defendant’s presentation of his theory of the case. For one, defendant sought to present a defense based on the legal doctrine of necessity. Defendant reasoned that he believed, based on legal opinions he received prior to his commission of the charged offenses, that he was justified in trespassing on the poultry farms in order to prevent alleged cruelty to the animals there. He also sought to present a related defense of mistake of law, based on his belief that the necessity doctrine justified his actions. According to defendant, even if his belief were mistaken, it was nonetheless relevant to whether he had the requisite state of mind to commit the specific intent crimes charged in counts 1, 3, and 4. The trial court ruled that the necessity defense was, as a matter of law, inapplicable in this case. As such, the trial court also precluded defendant from presenting a mistake of law defense based on necessity and from presenting any evidence or argument on the necessity issue. The court did, 7 however, allow defendant to present a more limited defense based on section 597e, a statute that authorizes trespass under certain circumstances in order to provide food or water to an impounded animal that has been deprived of food or water for over 12 hours. Accordingly, the jury was given a mistake of law instruction relating to defendant’s alleged belief that section 597e justified his and his colleagues’ actions. III. The Jury’s Deliberations. The jury began deliberating on October 24, 2023. During their deliberations, jurors had numerous questions regarding defendant’s mistake of law defense. In particular, the jury queried whether the relevant jury instruction on mistake of law as a defense (CALCRIM No. 3411) applied to mistakes of law generally or only to mistakes of law relating to section 597e. The trial court directed jurors back to the relevant instructions and clarified that they could only consider mistakes of law as to section 597e. IV. The Verdict and Subsequent Appeal. On November 2, 2023, after many days of deliberation, the jury convicted defendant of counts 1, 2, and 4 but could not reach a verdict on count 3. The prosecution elected not to retry count 3, and it was subsequently dismissed. This timely appeal followed. DISCUSSION Defendant raises the following issues on appeal: (1) Did the trial court prejudicially err by excluding his necessity defense as a matter of law; (2) did the court prejudicially err by refusing to permit the jury to consider his mistake of law defense predicated on necessity and excluding related evidence; (3) does section 31 violate the First Amendment to the extent it criminalizes a defendant’s “promotion” of another person’s illegal conduct; (4) did the court prejudicially err by refusing to provide a substantive 8 response to a jury question regarding the meaning of “promote”; (5) does section 602, subdivision (o) violate the First Amendment as a content-based restriction on free speech; and (6) did the trial court prejudicially err by permitting the prosecutor to repeatedly disparage his de facto religious beliefs in animal rights? We address each issue post as appropriate.4 I. Necessity Defense. At trial, defendant sought to raise a defense of necessity and provided an offer of proof with respect to its elements. In particular, defendant also proffered evidence that he committed the charged offenses because he believed, based on legal and veterinary opinions he obtained from experts, that his actions were lawful because they were necessary to prevent ongoing animal suffering on the poultry farms. Defendant thus asked the court to instruct the jury on this defense pursuant to CALCRIM No. 3403.5 4 We have read and considered the briefs filed in support of defendant by amici curiae Climate Defense Project, Professor Kristen Stilt, Nonhuman Rights Project, Professor Jens Bülte, Professor Matthew Liebman et al., Animal Justice, and Center for Constitutional Rights et al. 5 CALCRIM No. 3403 provides: “In order to establish th[e necessity] 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.” (1st bracketed insertion added.) 9  The trial court denied defendant’s request, finding that a necessity defense was not, as a matter of law, available to prevent harm to animals. The trial court alternatively found that the necessity defense required a showing of immediacy of a perceived danger, which was undermined by the undisputed fact that the crimes occurred during a planned action. On appeal, defendant challenges the court’s ruling as prejudicial error. Generally, a trial court is required to instruct the jury on a defendant’s proposed defense if there is substantial evidence to support the defense. (People v. Salas (2006) 37 Cal.4th 967, 982.) When, as here, the trial court refuses to give an instruction on the grounds that the proposed defense is legally unavailable, our standard of review is de novo. (People v. Morales (2021) 69 Cal.App.5th 978, 990.) Traditionally, the defense of necessity has covered situations in which physical forces beyond the defendant’s control rendered illegal conduct “the lesser of two evils.” (People v. Heath (1989) 207 Cal.App.3d 892, 899 (Heath).) “California appellate courts have recognized the necessity defense ‘despite the absence of any statutory articulation of this defense and rulings from the California Supreme Court that the common law is not a part of the criminal law in California.’ ” (In re Eichorn (1998) 69 Cal.App.4th 382, 388 (Eichorn).) “The defense of necessity generally recognizes that ‘ “the harm or evil sought to be avoided by [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.) As such, the necessity defense is permitted based on public policy considerations. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1134–1135.) In other words, “[n]ecessity 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 10 Cal.App.3d at p. 901.) However, because the necessity defense “ ‘represents a public policy decision not to punish . . . an individual despite proof of the crime’ ” (Eichorn, supra, 69 Cal.App.4th at p. 389), the defense is “very limited” (People v. Beach (1987) 194 Cal.App.3d 955, 971). Whether necessity exists is generally a question of fact. (Eichorn, supra, 69 Cal.App.4th at p. 389.) To justify an instruction on the necessity defense, the defendant must proffer evidence sufficient to establish that he or she “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 [or she] did not substantially contribute to the emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035; Heath, supra, 207 Cal.App.3d at p. 901; see CALCRIM No. 3403.) If the defendant fails to proffer substantial evidence on any of these six elements, the trial court may refuse to give a necessity instruction. (See People v. Trippet (1997) 56 Cal.App.4th 1532, 1539 (Trippet); In re Weller (1985) 164 Cal.App.3d 44, 48–50.) Here, the trial court refused to instruct the jury on defendant’s proposed necessity defense after concluding, as a matter of law, that the defense only applies to a defendant who broke the law to prevent significant harm to a human rather than a “non-human.” On appeal, defendant counters that no California court has carved out an animal exception to the “significant evil” element of the necessity defense. Instead, he says, courts have looked to whether a California public policy is implicated by the alleged harm in a necessity case. Thus, he reasons, because preventing animal cruelty is public policy in California, animal 11 cruelty may be considered a “significant evil” for purposes of the necessity defense in a particular case. Defendant is correct that, because the necessity defense is based on public policy, “we must look to public policy to determine whether the defense was available to the defendant on the facts presented here.” (People v. Youngblood (2001) 91 Cal.App.4th 66, 73 [only the Legislature is vested with the responsibility to declare the state’s public policy] (Youngblood).) If public policy considerations do not support a necessity defense, the court need not give the instruction. (See id. at pp. 73–74 [necessity defense unavailable to defendant who hoarded dozens of cats to prevent them from being euthanized because California law expressly authorizes cat euthanasia]; People v. Garziano (1991) 230 Cal.App.3d 241, 242 [necessity defense unavailable to defendant who committed crimes while demonstrating outside an abortion clinic because abortion is a protected right]; United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 491 [149 L.Ed.2d 722] [necessity defense must not be applied in a manner that would be at odds with the Legislature’s “ ‘determination of values’ ”]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1152 [“An unexpressed common law defense should not be engrafted onto a statutory scheme that embodies an inconsistent policy determination”].) Relevant here, there is a clear legislative determination, embodied in section 597, that animal cruelty is against public policy in California. (§ 597, subd. (b) [“whoever, having the charge or custody of an animal . . . , subjects an animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses an animal, or fails to provide the animal with proper food, drink, or shelter, or protection from the weather . . . , is, for each offense, guilty of a crime”]; see Farm Sanctuary, Inc. v. Department of 12 Food & Agriculture (1998) 63 Cal.App.4th 495, 504 [“ ‘It has long been the public policy of this country to avoid unnecessary cruelty to animals’ ”].) However, the existence of this public policy does not mean self-help is an available remedy to prevent suspected animal cruelty occurring on someone else’s private property, particularly when such property is a commercial farm regulated by a separate statutory scheme, to wit, the Food and Agricultural Code. (See Food & Agr. Code, § 9164 [“In order to prevent the spread of any livestock disease, it is unlawful for any person, that does not have a written permit issued by the director, to remove, or cause to be removed, any livestock from slaughterhouse pens, yards, corrals, or similar holding places where livestock is held for the purpose of immediate slaughter, except directly into the slaughterhouse that controls such pens, yards, corrals, or similar holding places”].) Moreover, even were we to accept defendant’s public policy argument, this alone would not support a necessity instruction. As stated ante, there must be substantial evidence supporting each of the elements of the defense in order to warrant bringing it to the jury. Assuming arguendo a defendant who commits a crime to prevent animal cruelty could be entitled to present a necessity defense in an appropriate case, this is not such a case.6 6 Neither this court nor the California Supreme Court has ruled that the necessity defense applies exclusively to situations involving physical harm to a human. As noted by defendant and amici curiae, at least one appellate court in this state has considered the necessity defense in a case involving the risk of harm to animals without dismissing the defense as legally unavailable—yet, without specifically addressing whether the common law supports the applicability of the necessity defense in such a case. (Youngblood, supra, 91 Cal.App.4th at pp. 72–74.) Courts in other states and various legal treatises, in turn, have included property damages as a type of harm that can trigger the necessity defense in criminal cases. (E.g., Strong v. State (Alaska Ct. App. 2022) 508 P.3d 1127, 1131–1133 & fn. 18 [trial court 13  Defendant contends both his offer of proof and the trial evidence were sufficient to support each element of the necessity defense. His offer demonstrated that: (1) defendant believed he had no choice but to trespass on the poultry farms to prevent “ongoing and unlawful harm to animals” that was documented in photographs and video footage; (2) no adequate legal course of action was available since “ ‘he had reached out to the authorities for assistance on dozens of occasions (including on the morning of the May 29 demonstration at Sunrise)’ to no avail”; (3) his actions did not create a greater danger than the one avoided because all activists wore “veterinarian- approved biosecurity gear” while entering barns and were trained in nonviolence; (4) his good faith belief in the necessity was based on opinions he received from legal and veterinary experts; (5) his belief was objectively reasonable based on “multiple investigations . . . that showed animals suffering and opinions to that effect”; and (6) he did not contribute to the “animal suffering.” (See People v. Pepper, supra, 41 Cal.App.4th at p. 1035.) We disagree that defendant’s offer of proof is sufficient to support a necessity defense, as did the trial court in its alternative ruling. California erred in finding as a matter of law that boat damage and destruction of salmon catch resulting from hydraulic spill did not constitute a “ ‘significant evil’ ” for purposes of the necessity defense], citing 2 LaFave, Substantive Criminal Law (3d ed. 2018) § 10.1(d)(1), p. 166 [recognizing that “ ‘[t]he harm avoided need not be physical harm (death or bodily injury)’; it ‘may . . . be harm to property’ ”]; 2 Robinson, Criminal Law Defenses (July 2021 supp.) § 124(g)(3), pp. 62–63 [observing that, although some states limit the necessity defense to cases involving threats of personal injury, that approach is not the universal view and it does not accord with the policy rationale behind the defense; “[s]ince the proportionality requirement demands that the harm resisted must always be greater than that actually caused, there can be no danger in leaving the triggering conditions open to seemingly minor threats”].) To be sure, this debate raises interesting issues. However, for reasons discussed post, we need not delve into them. 14 case law is clear: “ ‘[T]here must be a showing of imminence of peril before the defense of necessity is applicable. A defendant is “not entitled to a claim of . . . necessity unless and until he demonstrates that, given the imminence of the threat, violation of [the law] was the only reasonable alternative.” United States v. Bailey (1980) 444 U.S. 394, 411 [62 L.Ed.2d 575, 591, 100 S.Ct. 624]. The uniform requirement of California authority discussing the necessity defense is that the situation presented to the defendant be of an emergency nature, that there be threatened physical harm, and that there was no legal alternative course of action available.’ (People v. Weber (1984) 162 Cal.App.3d Supp. 1, 5 [208 Cal.Rptr. 719]; People v. Heath, supra, 207 Cal.App.3d at p. 901 [same]; People v. Patrick [(1981)] 126 Cal.App.3d [952,] 960 [‘a well-established central element [of the necessity defense] involves the emergency nature of the situation, i.e., the imminence of the greater harm which the illegal act seeks to prevent’].)” (People v. Galambos, supra, 104 Cal.App.4th at pp. 1162–1163, 1st, 6th & 7th bracketed insertions added, 1st & 3d italics added.)7 Thus, stated otherwise: “ ‘The situation presented to the defendant [relying on a necessity defense] must be of an emergency nature, threatening physical harm, and lacking an alternative, legal course of action. . . . An important factor of the necessity defense involves the balancing of the harm to be avoided as opposed to the costs of the criminal conduct. . . . [T]he threatened harm is in the immediate future, which contemplates the 7 As noted in People v. Patrick, supra, in “[s]ome formulations of the necessity defense [the instructions] specifically include an ‘imminence’ requirement,” while “[i]n others, the immediacy of the danger becomes a factor in assessing the reasonableness of the actor’s belief regarding the magnitude of the ‘greater harm’ he seeks to prevent.” (126 Cal.App.3d at p. 960, fn. 6.) 15 defendant having time to balance alternative courses of conduct. [Citation.] The defendant has the time, however limited, to form the general intent required for the crime, although under some outside pressure.’ ” (Eichorn, supra, 69 Cal.App.4th at pp. 387, 389–391, 1st & 2d bracketed insertions added [defendant, a homeless man who violated an ordinance banning sleeping in parks, was entitled to an instruction on the necessity defense based on evidence that lack of sleep constituted a significant evil and he had no means to procure an alternative place to sleep].) As these principles reflect, “the defense of necessity more properly applies to situations when the person asserting the defense is faced with an extraordinary, or at least unusual, situation. The basic context of this defense is that, ‘[u]nder the force of extreme circumstances, conduct which would otherwise constitute a crime is justifiable and not criminal; the actor engages in the conduct out of necessity to prevent a greater harm from occurring.’ (1 Wharton, Criminal Law [(15th ed. 1994)] Defenses, § 90, p. 614, fn. omitted.) . . . This would be consistent with the classic settings in which the defense of necessity has been discussed, such as to steal food to prevent starvation, or to sacrifice the life of another to avoid ‘drowning, starvation, or other catastrophe.’ (1 Witkin & Epstein, Cal. Criminal Law [(3d ed. 2000)] Defenses, § 55, p. 391.)” (People v. Lee (2005) 131 Cal.App.4th 1413, 1429–1430.) Defendant’s case (People v. Lovercamp (1974) 43 Cal.App.3d 823 (Lovercamp)) is instructive. There, an inmate was convicted of escaping from prison after the trial court refused to instruct the jury on the inmate’s theory that she escaped to avoid an imminent sexual attack by a group of fellow inmates. Reversing, the reviewing court held that “a limited defense of necessity is available if the following conditions exist: (1) The prisoner is