sufficient for a reasonable jury to ﬁnd that the defendant has shown the defense to
be more likely than not.
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
• 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
• Difference Between Necessity and Duress. People v. Heath (1989) 207
Cal.App.3d 892, 897–902 [255 Cal.Rptr. 120].
1 Witkin and Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 55–60.
3Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justiﬁcations, §§ 73.05, 73.18 (Matthew Bender).
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.)
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
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
DEFENSES AND INSANITY CALCRIM No. 3403