Section 3403 | CALCRIM (Jury Instructions)

Kidnapping by bringing a person unlawfully abducted out of state into
California. (Pen. Code, § 207(d).)
Related Instructions
CALCRIM No. 3403, Necessity.
CALCRIM No. 3402, Duress or Threats.
AUTHORITY
•
Instructional Requirements. Pen. Code, § 207(f)(1).
•
Imminent Harm Defined. See People v. Rodriguez (1997) 53 Cal.App.4th 1250,
1269 [62 Cal.Rptr.2d 345] [defining “imminent” for purposes of imperfect self-
defense to murder charge]; In re Eichorn (1998) 69 Cal.App.4th 382, 389 [81
Cal.Rptr.2d 535] [citing with approval definition of necessity that includes
physical harm].
•
Defendant’s Burden of Proof on Imminent Harm Defense. People v. Neidinger
(2006) 40 Cal.4th 67, 79 [51 Cal.Rptr.3d 45, 146 P.3d 502].
RELATED ISSUES
Whether Belief Must Be Reasonable
The language of Penal Code section 207(f)(1) does explicitly require that the
defendant “reasonably” believe that the child was in danger of harm. There are no
reported cases on this issue.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 281.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[2][a] (Matthew Bender).
CALCRIM No. 1225
KIDNAPPING
990

(1959) 174 Cal.App.2d 119, 124 [344 P.2d 342]; United States v. Bailey (1980) 444
U.S. 394, 409 [100 S.Ct. 624, 62 L.Ed.2d 575; cf. People v. Subielski (1985) 169
Cal.App.3d 563, 566–567 [211 Cal.Rptr. 579] [duress cannot be based on fear of
some unspecified injury].)
As provided by statute, duress is not a defense to crimes punishable by death. (Pen.
Code, § 26(6); People v. Anderson (2002) 28 Cal.4th 767, 780 [122 Cal.Rptr.2d 587,
50 P.3d 368] [duress is not a defense to any form of murder].) If such a crime is
charged, the court should instruct, using the last bracketed paragraph, that the
defense is not applicable to that count. However, “duress can, in effect, provide a
defense to murder on a felony-murder theory by negating the underlying felony.”
(Id. at p. 784.) If the defendant is charged with felony-murder, the court should
instruct that the defense of duress does apply to the underlying felony.
Related Instructions
The defense of duress applies when the threat of danger is immediate and
accompanied by a demand, either direct or implied, to commit the crime. (People v.
Heath (1989) 207 Cal.App.3d 892, 899–901 [255 Cal.Rptr. 120]; People v. Steele
(1988) 206 Cal.App.3d 703, 706 [253 Cal.Rptr. 773].) If the threat is of future harm
or there is no implicit or explicit demand that the defendant commit the crime, the
evidence may support instructing on the defense of necessity. (See CALCRIM No.
3403, Necessity.)
AUTHORITY
•
Instructional Requirements. Pen. Code, § 26(6).
•
Burden of Proof. People v. Graham (1976) 57 Cal.App.3d 238, 240 [129
Cal.Rptr. 31].
•
Difference Between Necessity and Duress. People v. Heath (1989) 207
Cal.App.3d 892, 897–902 [255 Cal.Rptr. 120].
RELATED ISSUES
Necessity Distinguished
Although evidence may raise