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F 4.40 n1 Duress: Effect Of Mental Delusion (PC 26(6)).
See People v. Geddes (91) 1 CA4th 448, 456 [1 CR2d 886] and FORECITE F 4.35 n2, re: relationship between mental delusion and the defense of duress and mistake of fact.
[Research Note: See FORECITE BIBLIO 4.40.]
F 4.40 n2 Duress As Defense To Non-Capital Murder (PC 26(6)).
People v. Anderson (2002) 28 C4th 767, 784 [122 CR2d 587] held that duress is not a defense to any form of murder in California by virtue of PC 26. Furthermore, duress may not reduce the murder to manslaughter. (Ibid.; see also People v. Harrison (2005) 35 C4th 208 [because duress cannot negate intent, malice or premeditation-deliberation elements of first degree murder, duress cannot negate requisite intent for aiding and abetting first-degree murder])
However, duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony. (See FORECITE F 8.21j.)
[Research Note: See FORECITE BIBLIO 4.40.]
F 4.40 n3 Duress: Battered Woman Syndrome Evidence Relevant (PC 26(6)).
Like self defense, the defense of duress requires the jury to make a two-pronged decision about the defendant’s mental state. The jury must decide: (1) if defendant actually believed that commission of the crime was necessary to prevent an imminent threat of a greater harm and (2) if the defendant actually held such a subjective belief, was it objectively reasonable under the circumstances. (See PC 26(6); CJ 4.40.) Hence, because duress requires a reasonable belief as to the immediate danger of any threat, evidence as to what a defendant reasonably believed, as opposed to what objectively is reasonable, is admissible. (See People v. Humphrey (96) 13 C4th 1073 [56 CR2d 142].) Humphrey dealt with the issue of Battered Woman Syndrome as applied to self-defense. There the court held: “Although the ultimate test of reasonableness is objective, in determining whether a reasonable person in defendant’s position would have believed in the need to defend, the jury must consider all of the relevant circumstances in which [the] defendant found herself.” (People v. Humphrey, supra, 13 C4th at p. 1083.) The same reasoning should apply to duress.
Evidence of Battered Person Syndrome is logically relevant to both determinations. In People v. Humphrey (96) 13 C4th 1073 [56 CR2d 142] the California Supreme Court held that BPS evidence is “generally relevant” to both the subjective existence and the objective reasonableness prongs of complete (perfect) self-defense. (Humphrey, 13 C4th 1073, 1088-89.) This holding should be controlling as to the subjective and objective prongs of duress which are operatively analogous to the self-defense determination. There is no reasoned basis to distinguish between a belief in an imminent threat which justifies self-defense and a belief in an imminent threat which justifies committing a crime to avoid a greater harm.
The relevance of BPS to duress was also recognized in People v. Romero DEPUBLISHED (92) 10 CA4th 1150 [13 CR2d 332], which held that battered woman syndrome evidence is admissible on the issue of credibility when it is argued that the defendant participated in the crime at the insistence of her batterer. The court observed that a rule permitting expert testimony about battered woman syndrome in a self-defense case must necessarily permit such testimony in a case where duress is claimed as a defense. In both cases, the evidence is relevant to the woman’s credibility and to support her testimony that she entertained a good faith objectively reasonable and honest belief that her act was necessary to prevent an imminent threat of greater harm.
The Supreme Court granted review in Romero but decided it on procedural grounds without considering the substantive battered woman syndrome issues. (People v. Romero (94) 8 C4th 728 [35 CR2d 270].)
For the foregoing reasons Chavez incorrectly concluded that Battered Person Syndrome is not relevant to the objective reasonableness determination as to the defense of duress.
RESEARCH NOTES: See FORECITE BIBLIO 4.40; BIBLIO 9.35.1.]
F 4.40 n4 Imperfect Duress As Defense To Murder (PC 26(6)).
“Imperfect duress” (i.e., honest but unreasonable) is not a complete defense to murder. (See People v. Anderson (2002) 28 C4th 767 [122 CR2d 587].) Nor can it reduce felony murder to manslaughter. (Ibid; see also People v. Bacigalupo (91) 1 C4th 103, 126, fn 4 [2 CR2d 335].) However, there remains a question of whether unreasonable duress may reduce malice murder to manslaughter. (Anderson assumes arguendo that imperfect duress may negate malice.) People v. Saille (91) 54 C3d 1103, 1115-17 [2 CR2d 364], held that neither intoxication nor mental impairment may reduce an intentional killing from murder to manslaughter. However, the court specifically declined to consider whether imperfect self-defense may negate express malice. (But see People v. Son (2000) 79 CA4th 224, 232 [93 CR2d 871] [case law does not support use of imperfect duress to mitigate murder to voluntary manslaughter by negating malice].)
[Research Note: See FORECITE BIBLIO 4.40.]
F 4.40 n5 Honest Belief Negates Specific Intent (PC 26(6)).
In People v. Smith (86) 187 CA3d 666, 678-79 [231 CR 897], the court held that "an honest but unreasonable belief as to duress may negate the specific intent necessary for a robbery." That is, if the defendant entertained a good faith belief that his life would be in immediate danger if he did not engage in the charged conduct, then felonious intent is negated.
Smith was disapproved without analysis in People v. Bacigalupo (91) 1 C4th 103, 126 fn 4 [2 CR2d 335]. (See also People v. King (91) 1 CA4th 288, 297-99 [2 CR2d 197] [concluding that duress does not negate specific intent].) However, notwithstanding Bacigalupo, a federal issue remains. While unreasonable duress may not negate a specific intent to take the property, it may negate felonious (i.e., criminal) intent. The federal constitutional rights to trial by jury and due process (6th and 14th Amendments) are implicated if the state precludes the defendant from using unreasonable duress to disprove the criminal intent element of the charge. (See generally, FORECITE PG VII.)
Moreover, an honest and good faith belief which negates criminal intent has been recognized as a defense in other contexts. (E.g., mistake of fact, FORECITE F 4.35a; mistake of law, FORECITE F 4.003a; claim of right, FORECITE F 9.40a.) This is so because a necessary element of the charge, wrongful intent, has not been proven. (See People v. Vogel (56) 46 C2d 798, 801, fn 2 [299 P2d 850].) Hence, if unreasonable duress negates the requisite criminal intent of the charge then the defendant may not be convicted even if the result is complete exoneration.
Another way of looking at duress in robbery or theft cases is that the defendant who acts under duress does not intend to permanently deprive the owner of the property taken. Hence, the defendant should have the right to an instruction which pinpoints this theory. (See FORECITE PG III(A).)
[Research Note: See FORECITE BIBLIO 4.40.]
F 4.40 n6 Duress As Defense To Non-Capital Murder (PC 26(6)).
(See FORECITE F 4.40 n2.)
[Research Note: See FORECITE BIBLIO 4.40.]
F 4.40 n7 Duress Applies When Others Are Threatened (PC 26(6)).
The defense of duress may be predicated upon threats of harm to persons other than the accused. (People v. Pena (83) 149 CA3d Supp 14, 25 [208 CR 719].)
[Research Note: See FORECITE BIBLIO 4.40.]
F 4.40 n8 Duress As Defense To Drunk Driving.
Duress may be a defense to driving under the influence and refusal to so instruct is error. (People v. Pena (83) 149 CA3d Supp 14, 26-27 [208 CR 719]; People v. Slack (89) 210 CA3d 937, 940 [258 CR 702]; see also State v. Knowles (Me. 1986) 495 A2d 335 [not inconsistent for defendant to deny operating vehicle while intoxicated and under license suspension and also to assert that operation of the vehicle under doctrine of duress was necessary to avoid imminent physical harm to himself or another]; State v. Rios (NM 1999) 980 P2d 1068 [duress defense available to a defendant who allegedly was threatened with violence by an angry mob after leaving a bar and was forced to drive while intoxicated]; but see Foster v. Synder (99) 76 CA4th 264, 271 [90 CR2d 207] [duress and necessity defenses do not apply to administrative per se hearings; VC 13353.2 and VC 13357(b)(2) are mandatory].)
F 4.40 n9 Necessity: Inapplicable To Robbery When Other Options Available.
People v. Metters DEPUBLISHED (98) 61 CA4th 1489 [72 CR2d 294] held that a robbery defendant was not entitled to instruction on the defense of necessity to obtain money to pay drug dealers to avert injury to his family. Other options rather than the robbery were available to the defendant. Moreover, the defendant created the emergency by purchasing the illicit drugs on credit and failing to repay the drug dealers for 3-4 years. (See also People v. Miceli (2002) 104 CA4th 256 [127 CR2d 888] [no necessity for assault of drug dealer to prevent supplying of drugs].)
F 4.40 n10 Duress: Threatened Hardship.
(See FORECITE F 10.42 n5.)
F 4.40 n11 Duress Compared To Necessity.
See U.S. v. Bailey (80) 444 US 394 [62 LEd2d 575; 100 SCt 624].
(See also FORECITE F 4.40a.)
F 4.40 n12 Duress To Negate Implied Malice.
People v. Anderson (2002) 28 C4th 767, 779 [122 CR2d 587] concluded that duress may be available to negate implied malice: “Although duress is not an affirmative defense to murder, the circumstances of duress would certainly be relevant to whether the evidence establishes the elements of implied malice murder. The reasons a person acted in a certain way, including threats of death, are highly relevant to whether the person acted with a conscious or wanton disregard for human life. [Citation.]”
F 4.40a
Threats And Menaces: Defendant Need Only Leave The Jury With A Reasonable Doubt
(PC 26(6))
*To be added at end of CJ 4.40:
This defense — through its immediacy requirement — negates criminal intent. If the evidence leave you with a reasonable doubt as to whether the danger perceived by defendant negated criminal intent you must find that such intent was not formed.
Points and Authorities
Prior to the issuance of its 1989 pocket part, CALJIC, in reliance upon People v. Pena (83) 149 CA3d Supp 14, 26-27 [197 CR 264, 271-72], did not recognize any significant distinction between the defenses of duress and necessity.
In People v. Heath (89) 207 CA3d 892, 901 [255 CR 120], the Court of Appeal held that the Pena analysis was erroneous and that the defenses of duress and necessity are “clearly different.” The Heath court summarized these differences as follows:
“The duress defense, through its immediacy requirement, negates an element of the crime — the intent to commit the act. The defendant does not have the time to form criminal intent because of immediacy and immanency of the threatened harm and need only leave the jury with a reasonable doubt as to the existence or non-existence of this fact.” [Citation to People v. Beach (87) 194 CA3d 955, 973 [240 CR 50].]
“The necessity defense, in contrast, contemplates a threat in the immediate future. [Citation to People v. Condley (77) 69 CA3d 999, 1011-12.] The defendant has the time, however limited, to consider alternative courses of conduct. The defendant has the burden of proving necessity by a preponderance of the evidence.” (Heath at 901.)
The CALJIC instructions on necessity (CJ 4.43 and CJ 4.44) incorporate the Heath analysis and allocate the burden to the defendant to establish necessity by a preponderance of the evidence. However, the CALJIC instruction upon duress, (CJ 4.40), fails to encompass the rule that the defendant need only leave the jury with a reasonable doubt as to the existence of duress.
Accordingly, as with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as alibi (CJ 4.50) or unconsciousness (CJ 4.31) the jury should be instructed that the defendant need only raise a reasonable doubt as to duress. [See FORECITE PG III(A).]
Furthermore, the due process clause of the 14th Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (70) 397 US 358, 364 [25 LEd2d 368].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
F 4.40b
Honest Duress Relevant To Mental Elements
(PC 26(6))
*When appropriate, modify CJ 4.40 to provide:
If you find from the evidence that at the time the alleged crime was committed the defendant honestly held a belief that [his] [her] own life [the life of another person] was in danger, you must consider what effect, if any, this belief had on the defendant and whether [he] [she] formed any of the specific mental states that are essential elements of the charge, such as: __________ [insert required specifications and mental states].
If you have a reasonable doubt as to whether the defendant formed any required specific intent or mental state, you must give the defendant the benefit of that doubt and find that such specific intent or mental state has not been proven beyond a reasonable doubt.
The defendant’s honest belief that [his] [her] life was in danger may, by itself, leave you with a reasonable doubt in your mind that defendant formed any of the above mental elements.
Points and Authorities
Even if the duress was not unreasonable or otherwise unavailable as a complete defense, honest belief in duress may still negate a required mental element. The defendant should have a right to an instruction allowing the jury to consider whether any mental element is negated by the defense theory. (See e.g., People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Anderson (2002) 28 C4th 767, 784 [122 CR2d 587] [it is for the jury to decide whether a killing committed under duress was premeditated under the circumstances]; see also LaFave and Scott, Crim. Law (1st Ed. 1972) § 49, p. 379 [suggesting duress may eliminate the ability to deliberate or premeditate]), or manslaughter (LaFave and Scott, Crim. Law (2nd Ed. 1986) § 7.11(c), pp. 666-67 [duress may negate malice].) See also FORECITE F 4.40c.
Although the California Supreme Court has not directly addressed the availability of honest duress to negate mental elements such as malice and premeditation/deliberation, it implicitly approved an instruction which related honest duress to these mental states in People v. Beardslee (91) 53 C3d 68, 85-86 [279 CR 276].
In People v. Bacigalupo (91) 1 C4th 103, 126 [2 CR2d 335], the court held that honest but unreasonable duress does not negate the specific intent necessary for theft or robbery. However, Bacigalupo should not be read to preclude the use of unreasonable duress when it actually may negate a mental element of the charge. The due process clauses of the federal (14th Amendment) and state (Art. I, § 15) constitutions require that the defendant be permitted to present evidence and obtain instruction upon any theory which may negate an element of the charge: i.e., felonious intent. (See People v. Bobo (90) 229 CA3d 1417, 1442 [271 CR 277] [defendant may not be denied an opportunity to prove absence of a statutorily required mental state]; People v. Saille (91) 54 C3d 1003, 1120 [2 CR2d 364] [right to request instruction pinpointing defense theory which negates an element of the charge]; but see FORECITE F 4.21 n11.) Moreover, Bacigalupo fails to recognize that the felonious intent for a theft offense may be negated not withstanding an intent to permanently deprive. (See, e.g., claim of right FORECITE F 9.40a; consent FORECITE F 14.02b.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).) Also, because the prosecution has the burden to prove the charge beyond a reasonable doubt, it is a given that any evidence which leaves the jury with a reasonable doubt as to any element of the charge requires acquittal. (See, e.g., CJ 2.40.)
RESEARCH NOTES
See, Annotation Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 ALR4th 481 and Later Case Service.
See also, FORECITE BIBLIO 4.40.
F 4.40c
Jury Should Consider Duress On The
Issue Of Premeditation And Deliberation
*Add to CJ 4.40:
SAMPLE INSTRUCTION # 1:
If the evidence establishes that there were threats and menaces, as defined elsewhere in these instructions, which played a part in inducing the defendant’s involvement in the killing, that fact cannot absolve the defendant of liability for murder. You should,* however, consider the threats and menaces for the bearing they may have on the question of whether the defendant acted with or without "deliberation" and "premeditation," as those terms are defined elsewhere in these instructions.
SAMPLE INSTRUCTION # 2:
[You should]* [Consider] evidence showing the existence of threats, menaces or compulsion that played a part in inducing the unlawful killing of a human being for such bearing as it may have on the question of whether the murder was of the first or second degree.
If you have a reasonable doubt that the killing was first degree murder, you must given the defendant the benefit of that doubt and find [him] [her] not guilty of first degree murder. Evidence of threats, menaces or compulsion may, by itself, leave you with a reasonable doubt in your mind that the killing was first degree murder.
*But see FORECITE F 4.21e.
Points and Authorities
People v. Anderson (2002) 28 C4th 767, 784 [122 CR2d 587] [it is for the jury to decide whether a killing committed under duress was premeditated under the circumstances]; see also CJ 8.73; LaFave and Scott, Crim. Law (1st Ed. 1972) § 49, p. 379 [duress may eliminate the ability to deliberate or premeditate].
PRACTICE NOTE:
As to the reasonable doubt language in the last paragraph of Sample Instruction # 2, counsel should consider whether or not to ask for the last sentence which includes the “by itself” language from CJ 2.40. The first sentence alone ("give the defendant the benefit of any reasonable doubt") may be more acceptable to some judges as it is analogous to language in several standard CALJIC instructions. (E.g, CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15.)
F 4.40d Duress As Defense To Underlying Felony In Felony Murder Case
See FORECITE F 540A.6 Inst 5.
