Section 3402 | CALCRIM (Jury Instructions)

[122 Cal.Rptr.2d 587, 50 P.3d 368] [dictum]; see also CALCRIM No. 3402, Duress
or Threats.)
Imperfect Self-Defense
Imperfect self-defense is not a defense to felony murder because malice
aforethought, which imperfect self-defense negates, is not an element of felony
murder. (See People v. Tabios (1998) 67 Cal.App.4th 1, 6–9 [78 Cal.Rptr.2d 753],
disapproved on another ground in People v. Chun (2009) 45 Cal.4th 1172,
1198–1199 [91 Cal.Rptr.3d 106, 203 P.3d 425].)
Actual Killer vs. Aider and Abettor
The meaning of actual killer is literal. It is not enough that the defendant’s act
formed part of a series of events that resulted in the death, if the act itself would not
cause death. (People v. Garcia (2020) 46 Cal.App.5th 123, 149–155 [259
Cal.Rptr.3d 600].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 151–168.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[7] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][e], [2][b] (Matthew Bender).
HOMICIDE
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defendant does not have the time to form the criminal intent because of the
immediacy of the threatened harm. (Ibid.)
Duress Cannot Reduce Murder to Manslaughter
Duress cannot reduce murder to manslaughter. (People v. Anderson (2002) 28
Cal.4th 767, 783–785 [122 Cal.Rptr.2d 587, 50 P.3d 368] [only the Legislature can
recognize killing under duress as new form of manslaughter].)
Mental State or Intent
Evidence of duress may be relevant to determining whether the defendant acted with
the required mental state, even if insufficient to constitute a complete defense.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99–100 [17 Cal.Rptr.3d 710,
96 P.3d 30] [noting that court properly instructed that duress may be considered on
the question of whether the defendant acted with the proper mental state].)
Great Bodily Harm
Penal Code section 26(6) discusses life-endangering threats and several older cases
have outlined the defense of duress in the literal language of the statute. However,
some cases have concluded that fear of great bodily harm is sufficient to raise this
defense. (Compare People v. Hart (1950) 98 Cal.App.2d 514, 516 [220 P.2d 595]
and People v. Lindstrom (1932) 128 Cal.App. 111, 116 [16 P.2d 1003] with People
v. Otis (1959) 174 Cal.App.2d 119, 124 [344 P.2d 342]; see also 1 Witkin &
Epstein, California Criminal Law (3d ed. 2000) Defenses, § 59 [discussing this
split]; but see People v. Subielski (1985) 169 Cal.App.3d 563, 566–567 [211
Cal.Rptr. 579] [court rejects defense of duress because evidence showed defendant
feared only a beating].) It is clear, however, that threats of great bodily harm are
sufficient in the context of necessity. (People v. Lovercamp (1974) 43 Cal.App.3d
823, 831 [118 Cal.Rptr. 110]; People v. Pena (1983) 149 Cal.App.3d Supp. 14, 27
[197 Cal.Rptr. 264].)
Third