THE PEOPLE, Plaintiff and Respondent, v. ROBERT NEAL ANDERSON, Defendant and Appellant, 28 Cal. 4th 767

Opinion CHIN, J. 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 girls who resided in the camp. Ron Kiem, the father of one of the girls, pleaded guilty to Armstrong’s second degree murder and testified at defendant’s trial. The prosecution evidence showed that a group of people, including defendant and Kiem, confronted Armstrong at the camp. Members of the group dragged Armstrong to a nearby field, beat her, put duct tape over her mouth, tied her naked to a bush, and abandoned her. Later, defendant and Kiem, in Kiem’s car, saw Armstrong going naked down the street away from the jetty.

The two grabbed Armstrong, forced her into the car, and drove away. They then put Armstrong into a sleeping bag, wrapped the bag with duct tape, and placed her, screaming, into the trunk of Kiem’s car. Witnesses testified that defendant picked up a large rock, brought it to the trunk, and handed it to Kiem. Kiem appeared to hit Armstrong with the rock, silencing her. Kiem testified that defendant said Armstrong had to die. After they put her into the trunk, defendant dropped a small boulder onto her head.

Eaem also said that defendant picked up the rock again, handed it to Kiem, and told him to drop it on Armstrong or something would happen to his family. Kiem dropped the rock but believed it missed Armstrong. Kiem and defendant later commented to others that Armstrong was dead. The evidence indicated that defendant and Kiem disposed of Armstrong’s body by rolling it down a ravine. One witness testified that Kiem stated he had stepped on her neck until it crunched to ensure she was dead before putting her in the ravine. The body was never found. Defendant testified on his own behalf.

He said he had tried to convince Kiem to take Armstrong to the hospital after she had been beaten. When he and Kiem saw her going down the road beaten and naked, Kiem grabbed her and put her in the backseat of the car. Back at camp, Kiem put Armstrong in the sleeping bag and bound it with duct tape. At Kiem’s instruction, defendant opened the trunk and Kiem put Armstrong inside. Kiem told defendant to retrieve a certain rock the size of a cantaloupe.

Defendant said, “Man, you are out of your mind for something like that.” Kiem responded, “Give me the rock or I’ll beat the shit out of you.” Defendant gave him the rock because Kiem was bigger than he and he was “not in shape” to fight. When asked what he thought Kiem would have done if he had said no, defendant replied: “Punch me out, break my back, break my neck. Who knows.” Kiem hit Armstrong over the head with the rock two or three times. Kiem’s wife was standing there yelling, “Kill the bitch.” Defendant testified that later they left in Kiem’s car. They pulled over and Kiem opened the trunk.

Armstrong was still moaning and moving around. Defendant tried to convince Kiern to take her to a hospital, but Kiem refused. Defendant got back into the car. A few minutes later, Kiem closed the trunk, got in the car, and said, “She’s dead now. I stomped on her neck and broke it.” A jury convicted defendant of first degree murder and kidnapping. Based primarily on his testimony that Kiem threatened to “beat the shit out of’ him, defendant contended on appeal that the trial court erred in refusing to instruct the jury on duress as a defense to the murder charge.

The Court of Appeal concluded that duress is not a defense to first degree murder and affirmed the judgment. We granted defendant’s petition for review to decide to what extent, if any, duress is a defense to a homicide-related crime, and, if it is a defense, whether the trial court prejudicially erred in refusing a duress instruction. II. Discussion A.

Whether Duress Is a Defense to Murder At common law, the general rule was, and still is today, what Blackstone stated: duress is no defense to killing an innocent person. “Stemming from antiquity, the nearly ‘unbroken tradition’ of Anglo-American common law is that duress never excuses murder, that the person threatened with his own demise ‘ought rather to die himself, than escape by the murder of an innocent.’ ” (Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits (1989) 62 So.Cal.

L.Rev. 1331, 1370, fns. omitted; see also id. at p. 1343 & fn. 83, and cases cited.) The basic rationale behind allowing the defense of duress for other crimes “is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person.” (LaFave, Criminal Law, supra, § 5.3, p. 467.) This rationale, however, “is strained when a defendant is confronted with taking the life of an innocent third person in the face of a threat on his own life. . . .

When the defendant commits murder under duress, the resulting harm—i.e. the death of an innocent person—is at least as great as the threatened harm—i.e. the death of the defendant.” (U.S. v. LaFleur, supra, 971 F.2d at p. 205.) We might add that, when confronted with an apparent kill-an-innocent-person-or-be-killed situation, a person can always choose to resist. As a practical matter, death will rarely, if ever, inevitably result from a choice not to kill. The law should require people to choose to resist rather than kill an innocent person. A state may, of course, modify the common law rule by statute.

The Model Penal Code, for example, does not exclude murder from the duress defense. (See LaFave, Criminal Law, supra, § 5.3(b), p. 469, fn. 13.) Defendant contends the California Legislature modified the rule in the 19th century and made duress a defense to some murders. Since its adoption in 1872, Penal Code

section 26 has provided: “All persons are capable of committing crimes except those belonging to the following classes: [*¡[] . . . [f] . . .

Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats of menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.” Defendant contends the reference to a “crime . . . punishable with death” means that the crimes to which duress is not a defense include only those forms of murder that are punishable with death, and that these forms change with changes in death penalty law. In 1872, when the current Penal Code was adopted, all first degree murder was punishable with death. (People v.

Green (1956) 47 Cal.2d 209, 218 [302 P.2d 307].) Today only first degree murder with special circumstances is so punishable. (§§ 190, subd. (a), 190.2, subd. (a).) Accordingly, defendant contends that today, duress is a defense to all murder except first degree murder with special circumstances. In effect, he argues that a killing under duress is either first degree murder with special circumstances or no crime at all. Because the prosecution did not allege special circumstances in this case, he continues, duress provides a full defense. The sparse relevant California case law is inconclusive. In People v.

Martin (1910) 13 Cal.App. 96, 102 [108 P. 1034], the court noted that “[i]t has ever been the rule that necessity is no excuse for killing an innocent person.” It cited but did not construe

section 26 and ultimately found duress was not available under the facts because the person was not in immediate danger. (People v. Martin, supra, at pp. 102-103.) In both People v. Son (2000) 79 Cal.App.4th 224, 232-233 [93 Cal.Rptr.2d 871], and People v. Petro (1936) 13 Cal.App.2d 245, 247-248 [56 P.2d 984], the court cited

section 26 and stated that duress was not available as a defense, but in each case the defendant had been convicted of a form of murder then punishable with death. In People v. Moran (1974) 39 Cal.App.3d 398 [114 Cal.Rptr. 413], the court stated in dicta, without analysis, that our decision in People v. Anderson (1972) 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880], which had declared unconstitutional the death penalty law then in effect, “rendered meaningless the exception pertaining to capital crimes of Penal Code

section 26,” and therefore “the defense of compulsion was available to defendant at the time of trial.” (People v. Moran, supra, at p. 417; see also Tapia v. Roe (9th Cir. 1999) 189 F.3d 1052, 1057 [dicta stating, without analysis, that under California law, “duress can excuse crimes, including murder without special circumstances”].) Citing

section 26, Witkin states, “The defense of coercion is generally held unavailable where the crime is homicide; i.e., the threat even of death to oneself does not excuse the killing of another innocent person.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 54, p. 390.) In this case, the Court of Appeal concluded that, because all first degree murders were punishable with death in 1872, when

section 26 was enacted, duress is not a defense to any first degree murder. In effect, the court concluded that

section 26’s exception for a “crime . . . punishable with death” includes any crime punishable with death as of 1872 unaffected by later changes in death penalty law. As we explain, we agree, except that the Court of Appeal did not go back far enough in time. The exception for a crime punishable with death refers to a crime punishable with death as of 1850, not

Section 26 derives from

section 10 of the original 1850 Act Concerning Crimes and Punishments, which similarly excepted a crime “punishable with death” from the duress defense.

Section 5, enacted as part of the original Penal Code in 1872 and unchanged since, provides: “The provisions of this Code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.” As relevant,

section 26 was merely a continuation of the then existing 1850 statute. For this reason, we must “begin ... by inquiring into the intent of the Legislature in 1850 . . . .” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 625 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420] [applying § 5 to § 187].) In 1850, all murder was punishable with death. (Stats. 1850, ch. 99, § 21, p. 231.) Not until 1856 was murder divided into degrees, with death the punishment for first degree but not second degree murder. (Stats. 1856, ch. 139, § 2, p. 219.) This means that in 1850, duress was no defense to any murder.

Thus, like many of California’s early penal statutes (see, e.g., People v. Davis (1998) 19 Cal.4th 301, 304, fn. 1 [79 Cal.Rptr.2d 295, 965 P.2d 1165] [theft]; Keeler v. Superior Court, supra, 2 Cal.3d at pp. 624-625 [murder]),

section 26 effectively adopted the common law, although the Legislature used a problematic method in which to do so. The question before us is whether the exception for a crime punishable with death changes with every change in death penalty law, which would mean that by 1872, the exception included only first degree murder and today it includes only first degree murder with special circumstances. We think not, for several reasons. We see no suggestion that the 1850, or any, Legislature intended the substantive law of duress to fluctuate with every change in death penalty law. That

interpretation would create strange anomalies. For example, special circumstances were added to the murder laws in the 1970’s to conform California’s death penalty law to the requirements of the United States Constitution. (People v. Frierson (1979) 25 Cal.3d 142, 173-175 [158 Cal.Rptr. 281, 599 P.2d 587].) Defendant’s position would mean that constitutional death penalty jurisprudence would control the substantive law of duress, something we doubt the Legislature intended.

Even more anomalously, defendant’s position would mean that when the Legislature created special circumstances to give California a valid death penalty law, it simultaneously expanded the circumstances in which someone may kill an innocent person. The presence or absence of special circumstances has no relationship to whether duress should be a defense to killing an innocent person.

For example, because a prior murder conviction is a special circumstance (§ 190.2, subd. (a)(2)), defendant’s position would mean that a person with a prior murder conviction who intentionally kills an innocent person under duress without premeditating commits no crime, but if the person premeditates, the killing is a capital crime. A person without the prior conviction committing the same premeditated killing would commit no crime unless some other special circumstance happened to attach, in which case the killing would be a capital crime. The Legislature can hardly have intended such random results. Defendant’s

interpretation would also force prosecutors to charge special circumstances to prevent duress from becoming a defense. As the Court of Appeal said in this case, “a rule making the availability of the duress defense turn on the manner in which prosecutorial discretion is exercised is potentially pernicious, and may do an unnecessary disservice to criminal defendants. The decision of whether to seek the death penalty . . . should not be encumbered by tactical considerations, such as blocking anticipated defenses.

The charging decision must be governed by more sagacious considerations than whether the punishment charged will deprive a defendant of a defense to the crime.” Other statutory provisions lead to the conclusion that, like the common law,

section 26 excludes all murder from the duress defense. By itself,

section 26 (or its 1850 predecessor) is not clear whether the reference to a “crime” punishable with death means the crime of murder in all its forms or only those forms of murder punishable with death. But

section 26 does not exist by itself. A court does not determine the meaning of a statute from a single word or sentence but in context; provisions relating to the same subject must be harmonized to the extent possible. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) Accordingly, a statute should be construed with reference to the whole system of law of which it is a part. (Landrum v. Superior Court (1981) 30 Cal.3d 1, 14 [177 Cal.Rptr. 325, 634 P.2d 352].) When read in conjunction with other statutes, it becomes clear that

section 26’s reference to a “crime” means the crime of murder in general and not just those forms of murder punishable with death at any given time.

The original 1850 statute defining murder provided that the “punishment of any person convicted of the crime of murder shall be death.” (Stats. 1850, ch. 99, § 21, p. 231, italics added.) The 1856 statute that divided murder into degrees, with death the punishment only for first degree murder—and thus, under defendant’s position, the statute that first abrogated the common law of duress—referred to determining “the degree of the crime.” (Stats. 1856, ch. 139, § 2, p. 219.) These statutes thus indicate that the “crime” was and remained “murder” even after it was divided into degrees.

Other statutes also indicate that the “crime” is “murder.”

Section 951 provides guidelines as to how to charge a crime in an information or indictment. It states the pleading may simply “giv[e] the name of the crime, as murder, burglary, etc. . . .” (Italics added.) An accusatory pleading charging simply murder, without specifying the degree, is sufficient to charge any degree of murder. (In re Walker (1974) 10 Cal.3d 764, 781 [112 Cal.Rptr. 177, 518 P.2d 1129]; People v. Mendez (1945) 27 Cal.2d 20, 23 [161 P.2d 929].) Moreover,

section 1157 provides that when “a defendant is convicted of a crime . . . which is distinguished into degrees,” the jury or court must find the degree of the crime. (Italics added.) Both sections 951 and 1157 were substantially identical in relevant respects in 1872, when

section 26 was enacted.

Section 1157 apparently has no antecedent before the 1872 Penal Code (but compare the 1856 law dividing murder into degrees, cited in the preceding paragraph [Stats. 1856, ch. 139, § 2, p. 219]), but

section 951 derives from the 1850 law, which was similar as relevant here. In accordance with these statutes, the information in this case charged defendant simply with the crime of “murder.” The jury then found the crime to be first degree. Thus, sections 951 and 1157 provide that the “crime” is “murder.” In light of those provisions, it is apparent that

section 26 also refers to the “crime” of murder, not a particular form of murder. Indeed, we have explained that when, in 1856, the Legislature created the degrees of murder, it merely “divide[d] the crime of murder into two degrees . . . .” (People v. Dillon (1983) 34 Cal.3d 441, 466 [194 Cal.Rptr. 390, 668 P.2d 697].) Moreover, we have explained that a special circumstance, today necessary to permit the death penalty, is itself “not a ‘crime,’ and an element of a special circumstance thus is not an ‘element of a crime.’” (People v.

Garcia (1984) 36 Cal.3d 539, 552 [205 Cal.Rptr. 265, 684 P.2d 826].) Even when special circumstances are alleged, the substantive crime remains murder. Murder is punishable with death, although not all forms of murder are so punishable. Here, defendant was properly charged simply with murder. Hence, duress was no defense to that charge. Other provisions of the Penal Code bolster this conclusion. Sections 195 and 197, both enacted in 1872, describe those situations in which homicide is excusable or justifiable.

If the homicide is excusable or justifiable under these provisions, the person must be acquitted. (§ 199.) The original 1850 law had provisions comparable to, although somewhat different from, sections 195 and 197. (Stats. 1850, ch. 99, §§ 29-36, p. 232.) None of these provisions mention duress as excusing or justifying homicide. It is unreasonable to suppose the Legislature carefully described the situations in which homicide is excusable or justifiable in those provisions, but also intended to create by oblique implication in

section 26 (or any other statute) yet another form of excusable or justifiable homicide, especially when doing so would abrogate the settled common law rule that duress is no defense to killing an innocent person. Moreover, no reason appears for the Legislature to have silently abrogated the common law rule. The reasons for the rule applied as well to 19th-century California as to Blackstone’s England. They apply, if anything, with greater force in California today. A person can always choose to resist rather than kill an innocent person.

The law must encourage, even require, everyone to seek an alternative to killing. Crimes are often committed by more than one person; the criminal law must also, perhaps especially, deter those crimes. California today is tormented by gang violence. If duress is recognized as a defense to the killing of innocents, then a street or prison gang need only create an internal reign of terror and murder can be justified, at least by the actual killer.

Persons who know they can claim duress will be more likely to follow a gang order to kill instead of resisting than would those who know they must face the consequences of their acts. Accepting the duress defense for any form of murder would thus encourage killing. Absent a stronger indication than the language of

section 26, we do not believe the Legislature intended to remove the sanctions of the criminal law from the killing of an innocent even under duress. Defendant cites In re Boyle (1974) 11 Cal.3d 165 [113 Cal.Rptr. 99, 520 P.2d 723] as supporting his position. Boyle interpreted former California Constitution,

article I,

section 6, which then provided, “All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.” (Italics added.) We held that only when defendants are actually death eligible under the law applicable to that case are “capital offenses” involved within the meaning of this provision. (In re Boyle, supra, 11 Cal.3d at p. 167.) Other statutes involving procedural rules that depend on whether the case is a capital case have generally also been interpreted to apply only to actual capital cases under the applicable law. (E.g., former Pen.

Code, § 1074, now Code Civ. Proc., § 229 [specifying grounds to challenge prospective jurors for cause]; Pen. Code, § 1095 [concerning the number of counsel permitted to argue]; Pen. Code, § 1272 [governing bail on appeal]; see Ex Parte Wolff (1880) 57 Cal. 94; see also 4 Witkin & Epstein, Cal. Criminal Law, supra, Pretrial Proceedings, § 82, pp. 281-282.) Defendant argues that because what is a capital offense for these purposes changes with changes in death penalty law, so too does the law of duress. We do not believe that these procedural provisions govern the substantive law of duress.

First, the procedural provisions generally use different terminology than

section 26 or its predecessor, which refer to a “crime” punishable with death. The constitutional bail provision construed in Boyle referred to “capital offenses.” (In re Boyle, supra, 11 Cal.3d at p. 167.) Former Penal Code

section 1074, subdivision 8, provided, “If the offense charged be punishable with death . . . .” (The current Code Civ. Proc., § 229, subd. (h), uses substantially equivalent language.) As enacted in 1872, Penal Code

section 1095 provided, “If the indictment is for an offense punishable with death . . . .” (It is substantially identical today.) The statutes governing bail at trial referred and still refer to someone “charged” with an “offense punishable with death” or a “capital offense.” (Pen. Code, former § 1270, later § 1268a, now again § 1270; see also current § 1270.5.) The statute governing bail on appeal refers to “conviction of an offense not punishable with death . . . .” (Pen.

Code, § 1272.) None of these provisions use the term “crime” and so shed no light on whether the 1850 or 1872 Legislature meant simply the “crime” of murder or only those forms of murder punishable with death at any given time. (An exception now exists. By a 1974 initiative, the electorate amended the constitutional bail provision so that it now refers to “[c]apital crimes,” not offenses. [Cal. Const., art.

I, § 12, as enacted Nov. 5, 1974.] This 1974 change does not help us determine what the Legislature intended in 1850 [or 1872].) Moreover, without deciding how all procedural provisions should be interpreted, we note that it generally makes sense for the procedures prescribed for capital cases to apply only to an actual capital case—hence, what is a capital case logically varies as the Legislature changes the death penalty law. But the same rationale does not apply to questions of substantive criminal law.

It makes no sense, and creates only anomalies, for the substantive law of duress to fluctuate with every change in substantive death penalty law including, as with special circumstances, changes constitutionally compelled for reasons irrelevant to the law of duress.

Defendant and the concurring and dissenting opinion cite the principle of statutory construction that where a reference to another law is specific, the reference is to that law as it then existed and not as subsequently modified, but where the reference is general, “such as ... to a system or body of laws or to the general law relating to the subject in hand,” the reference is to the law as it may be changed from time to time. (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58-59 [195 P.2d 1]; also quoted in In re Jovan B. (1993) 6 Cal.4th 801, 816 [25 Cal.Rptr.2d 428, 863 P.2d 673].) They argue that

section 26’s reference to a “crime . . . punishable with death” is general rather than specific. The question is not so clear.

Section 26 does not cite specific statutes, but the subject of crimes punishable with death is quite specific. It is, for example, far narrower than the reference that the Palermo court found to be specific for this purpose: “ ‘any treaty now existing between the government of the United States and the nation or country of which such alien is a citizen or subject.’ ” (Palermo v.

Stockton Theatres, Inc., supra, 32 Cal.2d at pp. 59-60.) In any event, when the statutory words themselves “do not make clear whether [the statute] contemplates only a time-specific incorporation, ‘the determining factor will be . . . legislative intent. . . I” (In re Jovan B., supra, at p. 816.) Here, for the reasons stated, we believe the Legislature intended to refer to crimes punishable with death as they existed in 1850. The concurring and dissenting opinion also argues that duress especially should be a defense to implied-malice second degree murder.

It evokes the image of an innocent person who is forced at gunpoint by fleeing armed robbers to drive recklessly, and who is then charged with murder when a fatal accident ensues. In reality, the situation is not so grim. Although duress is not an affirmative defense to murder, the circumstances of duress would certainly be relevant to whether the evidence establishes the elements of implied malice minder. The reasons a person acted in a certain way, including threats of death, are highly relevant to whether the person acted with a conscious or wanton disregard for human life. (People v.

Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279].) This is not due to a special doctrine of duress but to the requirements of implied malice murder. Defendant argues that the rule of lenity compels a different result. (See People v. Avery (2002) 27 Cal.4th 49, 57-58 [115 Cal.Rptr.2d 403, 38 P.3d 1].) We disagree. As explained in Avery, the rule of lenity compels courts to resolve true statutory ambiguities in a defendant’s favor, but this rule applies only if two reasonable

interpretations of the statute stand in relative equipoise. Courts should not strain to interpret a penal statute in a defendant’s favor if they can fairly discern a contrary legislative intent. Here, for the reasons stated, the possible

interpretations of

section 26 do not stand in relative equipoise. Reasonably construed,

section 26 preserves the common law rule that duress is not a defense to murder. Defendant also cites legislative inaction in support of his position. The Legislature amended

section 26 in 1976 and again in 1981, both times to delete a class of persons that the original statute had made incapable of committing crimes. (Stats. 1976, ch. 1181, § 1, p. 5285 [deleting the class of married women acting under threats by their husbands]; Stats. 1981, ch. 404, § 3, p. 1592 [deleting the class of “lunatics and insane persons”].) Defendant argues that because the Legislature did not also amend the provision relating to duress, it “made the decision that not only should not all murderers be eligible for the penalty of death, but not all should be deprived of the defense of duress.” Again, we disagree. “To be sure, where the Legislature amends a statute without altering a consistent and long-standing judicial

interpretation of its operative language, courts generally indulge in a presumption that the Legislature has ratified that

interpretation.” (People v. Escobar (1992) 3 Cal.4th 740, 750-751 [12 Cal.Rptr.2d 586, 837 P.2d 1100].) But legislative inaction is a weak indication of intent at best; it is generally more fruitful to examine what the Legislature has done rather than not done. (Id. at p. 751.) Here, there is no indication the Legislature even considered duress when it amended

section 26 in other areas. Moreover, when it did amend the section, there was no long-standing and consistent judicial

interpretation that duress was a defense to some but not all murder, only fleeting dicta in a single intermediate appellate court decision that duress was a defense to all murder when there was no death penalty. Accordingly, we conclude that duress is not a defense to any form of murder. B.

Whether Duress Can Reduce Murder to a Lesser Crime Defendant also argues that even if duress is not a complete defense to murder, at least it reduces the crime to manslaughter by negating malice. “Manslaughter is ‘the unlawful killing of a human being without malice.’ (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter in ‘limited, explicitly defined circumstances: either when the defendant acts in a “sudden quarrel or heat of passion” (§ 192, subd. (a)), or when the defendant kills in “unreasonable self-defense”—the unreasonable but good faith belief in having to act in self-defense (see In re Christian S. (1994) 7 Cal.4th 768 [30 Cal.Rptr.2d 33, 872 P.2d 574]; People v.

Flannel [(1979)] 25 Cal.3d 668 [160 Cal.Rptr. 84, 603 P.2d 1]).’ ” (People v. Blakeley (2000) 23 Cal.4th 82, 87-88 [96 Cal.Rptr.2d 451, 999 P.2d 675].) Neither of these two circumstances describes the killing of an innocent person under duress. Nevertheless, defendant argues that we should make duress a third way in which a defendant lacks malice. No California case has recognized the killing of an innocent person under duress as a form of manslaughter.

Some states have provided by statute that a killing under duress is manslaughter. (See Perkins & Boyce, Criminal Law, supra, ch. 9, § 2, p. 1058 & fn. 18; LaFave, Criminal Law, supra, § 7.11(c), pp. 719-720.) But California has not done so. The cases that have considered the question absent a statute have generally rejected the argument that duress can reduce murder to manslaughter. (E.g., U.S. v. LaFleur, supra, 971 F.2d at p. 206; State v. Nargashian (1904) 26 R.I. 299 [58 A. 953, 955] [often cited as a leading case on the subject]; contra, Wentworth v.

State (1975) 29 Md.App. 110 [349 A.2d 421, 428].) Relying heavily on People v. Flannel, supra, 25 Cal.3d 668, and legal commentators, defendant argues that this court should do what the Legislature has not done: recognize a killing under duress as a form of manslaughter. Some commentators do, indeed, argue that fear for one’s own life, although not justifying the killing of an innocent, should at least mitigate murder to manslaughter. “[T]he holding that a killing in such an extremity is necessarily murder has not been adequately considered.

While moral considerations require the rejection of any claim of excuse, they do not require that the mitigation of the circumstances be overlooked.

A killing in such an extremity is far removed from cold-blooded murder, and should be held to be manslaughter.” (Perkins & Boyce, Criminal Law, supra, ch. 9, § 2, p. 1058.) “[I]t is arguable that [a defendant’s] crime should be manslaughter rather than murder, on the theory that the pressure upon him, although not enough to justify his act, should serve at least to mitigate it to something less than murder.” (LaFave, Criminal Law, supra, § 7.11(c), p. 719.) This court has never decided the question. (See People v.

Bacigalupo (1991) 1 Cal.4th 103, 124-125 [2 Cal.Rptr.2d 335, 820 P.2d 559] [concluding only that any error in not giving duress instructions was harmless]; People v. Beardslee (1991) 53 Cal.3d 68, 86 [279 Cal.Rptr. 276, 806 P.2d 1311] [not deciding “what relevance, if any,” People v. Flannel, supra, 25 Cal.3d 668, has in the duress context].) The problem with making a killing under duress a form of manslaughter is that no statute so provides. The difference between murder and manslaughter “is that murder includes, but manslaughter lacks, the element of malice.” (People v.

Rios (2000) 23 Cal.4th 450, 460 [97 Cal.Rptr.2d 512, 2 P.3d 1066].) Both forms of voluntary manslaughter currently recognized—provocation and imperfect self-defense—are grounded in statutory language. The provocation form of manslaughter is obviously based on statute.

Section 192 “specifies] that an unlawful killing that lacks malice because committed ‘upon a sudden quarrel or heat of passion’ is voluntary manslaughter.” (People v. Rios, supra, 23 Cal.4th at p. 461; see also § 188 [malice is “implied, when no considerable provocation appears”].) Although less obviously, the imperfect self-defense form of manslaughter is also based on statute. People v.

Flannel, supra, 25 Cal.3d 668, the leading case developing the doctrine, “had two independent premises: (1) the notion of mental capacity . . . and (2) a grounding in both well-developed common law and in the statutory requirement of malice (Pen.

Code, § 187).” (In re Christian S., supra, 1 Cal.4th at p. 111.) In 1981, the Legislature abolished diminished capacity, thus making the first premise no longer valid. (Ibid.) But the second premise remains valid. (Ibid.) Express malice exists “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188, italics added.) A killing in self-defense is lawful.

Hence, a person who actually, albeit unreasonably, believes it is necessary to kill in self-defense intends to kill lawfully, not unlawfully. “A person who actually believes in the need for self-defense necessarily believes he is acting lawfully.” (In re Christian S., supra, 1 Cal.4th at p. 778.) Because express malice requires an intent to kill unlawfully, a killing in the belief that one is acting lawfully is not malicious.

The statutory definition of implied malice does not contain similar language, but we have extended the imperfect self-defense rationale to any killing that would otherwise have malice, whether express or implied. “[T]here is no valid reason to distinguish between those killings that, absent unreasonable self-defense, would be murder with express malice, and those killings that, absent unreasonable self-defense, would be murder with implied malice.” (People v. Blakeley, supra, 23 Cal.4th at p. 89.) Defendant’s reliance on People v.

Flannel, supra, 25 Cal.3d 668, and its recognition of unreasonable self-defense as a form of manslaughter, is thus misplaced. A killing in self-defense is lawful, but a killing of an innocent person under duress is unlawful. In contrast to a person killing in imperfect self-defense, a person who kills an innocent believing it necessary to save the killer’s own life intends to kill unlawfully, not lawfully. Nothing in the statutes negates malice in that situation. Recognizing killing under duress as manslaughter would create a new form of manslaughter, which is for the Legislature, not courts, to do.

When this court developed the doctrine of diminished capacity as a form of manslaughter, we rejected the argument that we were improperly creating a nonstatutory crime: “In People v. Conley [(1966)] 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911], we pointed out that

section 192 had been adopted before the concept of diminished capacity had been developed and therefore that section’s enumeration of nonmalicious criminal homicides could not be considered exclusive. We did not thereby create a ‘non statutory crime,’ nor could we do so consistently with Penal Code

section 6. Rather we gave effect to the statutory definition of manslaughter by recognizing that factors other than sudden quarrel or heat of passion may render a person incapable of harboring malice.” (People v. Mosher (1969) 1 Cal.3d 379, 385, fn. 1 [82 Cal.Rptr. 379, 461 P.2d 659].) This justification of diminished capacity does not apply to duress. Sections 26, 187, and 192, all enacted in 1872 and unchanged since as far as duress is concerned, postdate the development of the law that duress does not justify killing an innocent person.

Moreover, the Legislature has now abolished the doctrine of diminished capacity. (In re Christian S., supra, 7 Cal.4th at p. 774; People v. Saille (1991) 54 Cal.3d 1103 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Thus, we see no basis on which to create a new, nonstatutory, form of voluntary manslaughter. Two other circumstances also point to this conclusion. First,

section 190.3 lists factors a jury should consider in deciding whether to impose the death penalty when the defendant has been convicted of first degree murder with special circumstances. Among the factors is whether the defendant “acted under extreme duress . . . .” (§ 190.3, factor (g).) This provision implies that a person acting even “under extreme duress” may be convicted of first degree murder with special circumstances, an implication inconsistent with the notion that duress reduces what would otherwise be murder to manslaughter.

Second, recognizing that duress could reduce murder to manslaughter would create a conundrum with no obvious solution. Manslaughter has always been a separate crime from murder. Both

section 187, defining murder, and

section 192, defining manslaughter, were enacted in 1872. They derive from the 1850 law. (Stats. 1850, ch. 99, §§ 19-26, p. 231.) But manslaughter has never been punishable by death. If a killing under duress were a form of manslaughter, it would seem that the same duress would then provide a defense to manslaughter. Thus, duress would become a complete defense to murder by a two-step process: first, duress would reduce murder to manslaughter; second, duress would supply a defense to that manslaughter. These problems are for the Legislature to sort out if it should choose to do so.

We recognize that policy arguments can be made that a killing out of fear for one’s own life, although not justified, should be a crime less than the same killing without such fear. On the other hand, because duress can often arise in a criminal gang context, the Legislature might be reluctant to do anything to reduce the current law’s deterrent effect on gang violence. These policy questions are for the Legislature, not a court, to decide. Accordingly, we reject defendant’s argument that we should create a new form of voluntary manslaughter. His arguments are better directed to the Legislature.

Defendant also argues that, at least, duress can negate premeditation and deliberation, thus resulting in second degree and not first degree murder. We agree that a killing under duress, like any killing, may or may not be premeditated, depending on the circumstances. If a person obeys an order to kill without reflection, the jury might find no premeditation and thus convict of second degree murder. As with implied malice murder, this circumstance is not due to a special doctrine of duress but to the legal requirements of first degree murder.

The trial court instructed the jury on the requirements for first degree murder. It specifically instructed that a killing “upon a sudden heat of passion or other condition precluding the idea of deliberation” would not be premeditated first degree murder. (Italics added.) Here, the jury found premeditation. In some other case, it might not. It is for the jury to decide. But, unless and until the Legislature decides otherwise, a malicious, premeditated killing, even under duress, is first degree murder.

On a final point, we note, contrary to the Attorney General’s argument, that duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. (See People v. Anderson (1991) 233 Cal.App.3d 1646, 1666-1667, fn. 18 [285 Cal.Rptr. 523]; Perkins & Boyce, Criminal Law, supra, ch. 9, § 2, pp. 1058-1059; LaFave, Criminal Law, supra, § 5.3(b), pp. 468-469.) If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony.

Here, for example, the court instructed the jury that duress could be a defense to the kidnapping charge. It also instructed on felony murder with kidnapping as the underlying felony. If the jury had found defendant not guilty of kidnapping due to duress (it did not), it could not have found that he killed during the commission of that kidnapping. Defendant could not have killed during the perpetration of a crime of which he was innocent. Our conclusion that duress is no defense to murder makes it unnecessary to decide whether the evidence would have warranted duress instructions in this case. III.

Conclusion We affirm the judgment of the Court of Appeal. George, C. J., Baxter, J., Werdegar, J., Brown, J., and Moreno, J., concurred. By “innocent,” we mean merely that the person did not cause the duress, not that the person has never committed a crime. See also Perkins and Boyce, Criminal Law (3d ed. 1982)

chapter 9,

section 2, page 1058 (“For the most part today, as at common law, one is not excused for the intentional killing of an obviously innocent person, even if it was necessary to save oneself from death.”); LaFave, Criminal Law (3d ed. 2000)

section 5.3(b), pages 468-469; Annotation, Coercion, Compulsion, or Duress as Defense to Criminal Prosecution (1955) 40 A.L.R.2d 908, 909 (“[I]t appears to be generally accepted that coercion or duress may be a defense to all crimes except taking the life of an innocent person”); U.S. v. LaFleur (9th Cir. 1991) 971 F.2d 200, 205, and cases cited. All further statutory references are to the Penal Code unless otherwise indicated.

The original 1850 statute provided: “A person committing a crime not punishable with death, under threats or menaces which sufficiently show that his or her life was in danger, or that he or she had reasonable cause to believe and did believe that his or her life was in danger, shall not be found guilty, and such threats or menaces being proved and established, the person or persons compelling by such threats or menaces the commission of the offence, shall be considered as principal or principals, and suffer the same punishment as if he or she had perpetrated the offence.” (Stats. 1850, ch. 99, § 10, p. 230.) As originally enacted in 1872,

section 951 provided that the accusatory pleading might accuse the defendant “of the crime of (giving its legal appellation, such as murder, arson, or the like ...)....” The 1850 antecedent provided that an indictment might accuse the defendant “of the crime of (giving its legal appellation, such as Murder, Arson, Manslaughter, or the like ...)....” (Stats. 1850, ch. 119, § 259, p. 294, original italics.) As originally enacted in 1872,

section 1157 referred to “a crime [that] is distinguished into degrees . . . .”