Crime Committed Under Threats or Menaces
In People v. Kearns (1997) 55 Cal. App. 4th 1128 [64 Cal. Rptr. 2d 654], after quoting the concept of duress set forth in section 26, we observed:
"Based on the immediacy of the situation, this defense negates a criminal intent by the person under duress, rather attributing such intent to the coercing party. (CALJIC No. 4.40.)" (55 Cal. App. 4th at p. 1134, fn. 1.)
In People v. Petro, supra, 13 Cal. App. 2d 245, court approved an instruction providing:
" 'You are instructed that the charge in this case is murder, which may be punishable by death, and it is no defense to the charge of murder that the defendant, Paul D. Petro, claims that he committed any act or made any of the omissions charged, under threats or menaces.' " (Id. at p. 247.)
"Defendant being charged with a crime which may be punished by death, the instruction correctly states the law applicable to the facts of this case.
Under [former] subdivision 8 of section 26 of the Penal Code, where the crime charged may be punished with death, and the evidence clearly shows that the death penalty may be imposed, the defense that the perpetrator of the crime acted under threats or menace sufficient to show he had reasonable cause to believe, and did believe, that his life would be endangered if he refused, is not available.
Under such circumstances an instruction such as given here is proper." ( Id. at p. 248.)