CALCRIM No. 3402. Duress or Threats

Judicial Council of California Criminal Jury Instructions (2022 edition)

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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

943

(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].

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].)

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 55-57.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,

Defenses and Justifications, § 73.05[1] (Matthew Bender).

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Page last reviewed May 2022