California Criminal Jury Instructions (CALCRIM) (2017)

3402. Duress or Threats

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3402.Duress or Threats
The defendant is not guilty of <insert crime[s]> if (he/she)
acted under duress. The defendant acted under duress if, because of
threat or menace, (he/she) believed that (his/her/ [or] someone else’s) life
would be in immediate danger if (he/she) refused a demand or request
to commit the crime[s]. The demand or request may have been express
or implied.
The defendant’s belief that (his/her/ [or] someone else’s) life was in
immediate danger must have been reasonable. When deciding whether
the defendant’s belief was reasonable, consider all the circumstances as
they were known to and appeared to the defendant and consider what a
reasonable person in the same position as the defendant would have
believed.
A threat of future harm is not sufficient; the danger to life must have
been immediate.
[The People must prove beyond a reasonable doubt that the defendant
did not act under duress. If the People have not met this burden, you
must find the defendant not guilty of <insert crime[s]>.]
[This defense does not apply to the crime of <insert
charge[s] of murder; see Bench Notes>.]
New January 2006; Revised June 2007, April 2008
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 a defense, which, if believed, would be
sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s
guilt. (People v. Salas (2006) 37 Cal.4th 967, 982–983 [38 Cal.Rptr.3d 624, 127
P.3d 40].)
Fear of great bodily harm can also raise the defense of duress. (See People v. Otis
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(1959) 174 Cal.App.2d 119, 124 [344 P.2d 342]; United States v. Bailey (1980) 444
U.S. 394, 409 [100 S.Ct. 624, 62 L.Ed.2d 575; cf. People v. Subielski (1985) 169
Cal.App.3d 563, 566–567 [211 Cal.Rptr. 579] [duress cannot be based on fear of
some unspecified injury].)
As provided by statute, duress is not a defense to crimes punishable by death. (Pen.
Code, § 26(6); People v. Anderson (2002) 28 Cal.4th 767, 780 [122 Cal.Rptr.2d
587, 50 P.3d 368] [duress is not a defense to any form of murder].) If such a crime
is charged, the court should instruct, using the last bracketed paragraph, that the
defense is not applicable to that count. However, “duress can, in effect, provide a
defense to murder on a felony-murder theory by negating the underlying felony.”
(Id. at p. 784.) If the defendant is charged with felony-murder, the court should
instruct that the defense of duress does apply to the underlying felony.
Related Instructions
The defense of duress applies when the threat of danger is immediate and
accompanied by a demand, either direct or implied, to commit the crime. (People v.
Heath (1989) 207 Cal.App.3d 892, 899–901 [255 Cal.Rptr. 120]; People v. Steele
(1988) 206 Cal.App.3d 703, 706 [253 Cal.Rptr. 773].) If the threat is of future
harm or there is no implicit or explicit demand that the defendant commit the
crime, the evidence may support instructing on the defense of necessity. (See
CALCRIM No. 3403, Necessity.)
AUTHORITY
• Instructional Requirements. Pen. Code, § 26(6).
Burden of Proof. People v. Graham (1976) 57 Cal.App.3d 238, 240 [129
Cal.Rptr. 31].
• Difference Between Necessity and Duress. People v. Heath (1989) 207
Cal.App.3d 892, 897–902 [255 Cal.Rptr. 120].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 53–54.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.05[1] (Matthew Bender).
RELATED ISSUES
Necessity Distinguished
Although 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
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defendant does not have the time to form the criminal intent because of the
immediacy of the threatened harm. (Ibid.)
Duress Cannot Reduce Murder to Manslaughter
Duress cannot reduce murder to manslaughter. (People v. Anderson (2002) 28
Cal.4th 767, 783(785 [122 Cal.Rptr.2d 587, 50 P.3d 368] [only the Legislature can
recognize killing under duress as new form of manslaughter].)
Mental State or Intent
Evidence of duress may be relevant to determining whether the defendant acted
with the required mental state, even if insufficient to constitute a complete defense.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99–100 [17 Cal.Rptr.3d 710,
96 P.3d 30] [noting that court properly instructed that duress may be considered on
the question of whether the defendant acted with the proper mental state].)
Great Bodily Harm
Penal Code section 26(6) discusses life-endangering threats and several older cases
have outlined the defense of duress in the literal language of the statute. However,
some cases have concluded that fear of great bodily harm is sufficient to raise this
defense. (Compare People v. Hart (1950) 98 Cal.App.2d 514, 516 [220 P.2d 595]
and People v. Lindstrom (1932) 128 Cal.App. 111, 116 [16 P.2d 1003] with People
v. Otis (1959) 174 Cal.App.2d 119, 124 [344 P.2d 342]; see also 1 Witkin &
Epstein, California Criminal Law (3d ed. 2000) Defenses, § 59 [discussing this
split]; but see People v. Subielski (1985) 169 Cal.App.3d 563, 566–567 [211
Cal.Rptr. 579] [court rejects defense of duress because evidence showed defendant
feared only a beating].) It is clear, however, that threats of great bodily harm are
sufficient in the context of necessity. (People v. Lovercamp (1974) 43 Cal.App.3d
823, 831 [118 Cal.Rptr. 110]; People v. Pena (1983) 149 Cal.App.3d Supp. 14, 27
[197 Cal.Rptr. 264].)
Third Person Threatened
In People v. Pena (1983) 149 Cal.App.3d Supp. 14, 21–25 [197 Cal.Rptr. 264], the
court held that the defenses of necessity and duress may be based on threats of
harm to a third party. Although Pena is regarded as a necessity case, its discussion
of this point was based on out-of-state and secondary authority involving the
defense of duress. (See People v. Heath (1989) 207 Cal.App.3d 892, 898 [255
Cal.Rptr. 120] [acknowledging that though Pena uses the terms necessity and
duress interchangeably, it is really concerned with the defense of necessity].) No
other California cases discuss threats made to a third party and duress. (See also 1
Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 60
[discussing Pena on this point].)
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