Anderson

Over two centuries ago, William Blackstone, the great commentator on the common law, said that duress is no excuse for killing an innocent person: "And, therefore, though a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself than escape by the murder of an innocent." (2 Jones's Blackstone (1916) p. 2197.)

We granted review to decide whether these words apply in California. We conclude that, as in Blackstone's England, so today in California: fear for one's own life does not justify killing an innocent person. Duress is not a defense to murder. We also conclude that duress cannot reduce murder to manslaughter. Although one may debate whether a killing under duress should be manslaughter rather than murder, if a new form of manslaughter is to be created, the Legislature, not this court, should do it.

Defendant was charged with kidnapping and murdering Margaret Armstrong in a camp area near Eureka called the South Jetty. Defendant and others apparently suspected the victim of molesting two girls who resided in the camp. Ron…

Over two centuries ago, William Blackstone, the great commentator on the common law, said that duress is no excuse for killing an innocent person: “And, therefore, though a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself than escape by the murder of an innocent.” (2 Jones’s Blackstone (1916) p. 2197.)

We granted review to decide whether these words apply in California. We conclude that, as in Blackstone’s England, so today in California: fear for one’s own life does not justify killing an innocent person. Duress is not a defense to murder. We also conclude that duress cannot reduce murder to manslaughter. Although one may debate whether a killing under duress should be manslaughter rather than murder, if a new form of manslaughter is to be created, the Legislature, not this court, should do it.

I. The Facts and Procedural History

Defendant was charged with kidnapping and murdering Margaret Armstrong in a camp area near Eureka called the South Jetty. Defendant and others apparently suspected the victim of molesting two…

Under California law, the death penalty may be imposed for the crime of murder only if the murder is of the first degree and committed with one or more of the statutorily defined special circumstances. (Pen. Code, §§ 190, 190.2.) California law allows a person accused of crime to defend against any criminal charge on the ground that the defendant acted under duress “unless the crime be punishable with death.” (Id., § 26, subd. Six.) Here, defendant contends that, because the death penalty may not be imposed for second degree murder, the trial court erred in not instructing the jury that duress, if proven, was a complete defense to second degree murder.

The majority concludes that the trial court did not err because, under California law, duress is not a defense to second degree murder, or to any form of murder, whether or not the particular form of murder is punishable by death. I disagree. Applying established rules of statutory construction, I would hold that duress is unavailable as a defense only when the offense is capital murder—that is, first degree murder with a special circumstance— and that duress is available as a defense to all noncapital forms of murder, including…