Criminal Law

3403. Necessity

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;


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.

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct on necessity when there is sufficient evidence supporting each of the factors establishing the defense. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 [48 Cal.Rptr.2d 877] [no duty to instruct sua sponte where evidence did not, as a matter of law, support this defense]; see In re Eichorn (1998) 69 Cal.App.4th 382, 389 [871 Cal.Rptr.2d 535] [defendant requested instruction on necessity and court, citing Pepper, supra, held that "an instruction on necessity was required," where sufficient evidence established the defense].)

Related Instructions

If the threatened harm was immediate and accompanied by a demand to commit the crime, the defense of duress may apply. (See CALCRIM No, 3402, Duress or Threats.)


Instructional Requirements. People v. Pena (1983) 149 Cal.App.3d Supp. 14 [197 Cal.Rptr. 264]; People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 [48 Cal.Rptr.2d 877]; People v. Kearns (1997) 55 Cal.App.4th 1128, 1135-1136 [64 Cal.Rptr. 2d 654].

Burden of Proof. People v. Waters (1985) 163 Cal.App.3d 935, 938 [209 Cal.Rptr. 661]; People v. Condley (1977) 69 Cal.App.3d 999, 1008 [138 Cal.Rptr. 515].

Difference Between Necessity and Duress. People v. Heath (1989) 207 Cal.App.3d 892, 897-902 [255 Cal.Rptr. 120].

Secondary Sources

1 Witkin and Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 55-60.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.05[2], 73.18 (Matthew Bender).

Related Issues

Duress Distinguished

Although a defendant's 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 defendant does not have the time to form the criminal intent because of the immediacy of the threatened harm. (Ibid.)

Abortion Protests

The defense of necessity is not available to one who attempts to interfere with another person's exercise of a constitutional right (e.g., demonstrators at an abortion clinic). (People v. Garziano (1991) 230 Cal.App.3d 241, 244 [281 Cal.Rptr. 307].)

Economic Necessity

Necessity caused by economic factors is valid under the doctrine. A homeless man was entitled to an instruction on necessity as a defense to violating an ordinance prohibiting sleeping in park areas. Lack of sleep is arguably a significant evil and his lack of economic resources prevented a legal alternative to sleeping outside. (In re Eichorn (1998) 69 Cal.App.4th 382, 389-391 [81 Cal.Rptr.2d 535].)

Medical Necessity

There is a common law and statutory defense of medical necessity. The common law defense contains the same requirements as the general necessity defense. (See People v. Trippet (1997) 56 Cal.App.4th 1532, 1538 [66 Cal.Rptr.2d 559].) The statutory defense relates specifically to the use of marijuana and is based on Health and Safety Code section 11362.5, the "Compassionate Use Act," but see Gonzales v. Raich (2005) 545 U.S. ______ [125 S.Ct. 2195, 162 L.Ed.2d 1] [medical necessity defense not available].

(New January 2006)