Anderson

Certified for Partial Publication. [*]

Appellant Robert Neal Anderson was convicted of first degree murder and kidnapping of Margaret Armstrong (Pen. Code, §§ 187, 207, subd. (a)). [1] On appeal from the judgment he contends: (1) the trial court erred by refusing to instruct on duress as a defense to the murder charge; (2) trial counsel was ineffective for failing to request an instruction on imperfect duress; and (3) the trial court erred by refusing to give a unanimity instruction as to the murder charge. In the published portion of this opinion, we conclude that Penal Code section 26, which makes the defense of duress unavailable for a crime "punishable by death" applies to all charges of first degree murder.

Sometime in the spring of 1994, appellant and his wife Christiane met Ron and Deborah Kiern and their two children, Elizabeth and Richard, at a swap meet in Joshua Tree, California. Both couples made their living traveling with their children to swap meets at various locations to sell their merchandise. The victim, Margaret Armstrong, lived in Joshua Tree with her husband Bill and sometimes shopped at the swap meet. She befriended the Kierns and Andersons…