CALCRIM No. 3403. Necessity
Judicial Council of California Criminal Jury Instructions (2020 edition)Download PDF
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
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.
New January 2006; Revised April 2008, September 2018
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
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 necessity, which, if believed, would be
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].
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 Cal.Rptr. 307].)
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].)
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
DEFENSES AND INSANITY CALCRIM No. 3403
People v. Trippet (1997) 56 Cal.App.4th 1532, 1538 [66 Cal.Rptr.2d 559].) The
statutory defense relates specifically to the use of cannabis and is based on Health
and Safety Code section 11362.5, the “Compassionate Use Act,” but see Gonzales v.
Raich (2005) 545 U.S. 1 [125 S.Ct. 2195, 162 L.Ed.2d 1] [medical necessity
defense not available].
3 Witkin and Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 58-65.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.05, 73.18 (Matthew Bender).
CALCRIM No. 3403 DEFENSES AND INSANITY