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F 4.002a
Duress To Negate Criminal Intent
The defendant’s honest belief, even if mistakenly or unreasonably held, that [his] [her] life would be in immediate danger if [he] [she] did not engage in the conduct charged negates the criminal intent necessary to convict [him] [her] of __________.
If the evidence raises a reasonable doubt as to whether the danger perceived by defendant negated the criminal intent you must find that such intent was not formed.
Points and Authorities
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 [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(C).]
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, FORECITEF 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.
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 FORECITE PG VII(C).]
NOTES
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).)
