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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rick Mitchell GRAHAM, Defendant and Appellant.

Cr. 6825.

Decided: February 27, 1975

Appellate Defenders, Inc., by Harold F. Tyvoll and Fredric G. Dunn, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., and Karl J. Phaler, Deputy Atty. Gen., for plaintiff and respondent.


Rick Mitchell Graham appeals a judgment following a jury trial in which he was convicted of second degree robbery (Pen.Code § 211). He was sentenced to prison for the term prescribed by law.

On September 15, 1973 Graham entered Bod's Dari Fresh, looked around and left. He returned in a few minutes and shopped. Instead of paying after the sale had been rung up, he told the clerk ‘Put the money in my hand.’ The clerk did not understand what he meant until he displayed a knife. Then she emptied the bills from the till into his hand.

One of Graham's defenses was he had acted under duress. Graham claimed an acquaintance named ‘John,’ a heroin user in need of a fix, had pulled a gun on him and told him to rob the store or else he, Graham, his girl friend and her child would be killed. In instructing the jury, the trial court placed on Graham the burden of proving by a preponderance of the evidence that the crime was committed under duress. Graham contends this burden should have been placed on the prosecution.

There are no California cases on whom the burden of proof rests with respect to duress; the jurisdictions which have considered the issue generally place the burden on the defendant, although not without reservations.1 California, however, has placed the burden of proof of entrapment on the defendant (People v. Moran, 1 Cal.3d 755, 760, 83 Cal.Rptr. 411, 463 P.2d 763). The defense of duress is analogous to that of entrapment. In both instances the defense does not go to guilt or innocence; in both instances the defendant is arguing that if he is found to have committed the act he should be held blameless because of the conduct of a third person; in both instances the defense could be invoked without the defendant's admitting he is guilty of the offense charged (see People v. Perez, 62 Cal.2d 769, 775–776, 44 Cal.Rptr. 326, 401 P.2d 934), thus, the burden of proof should be the same.

Graham argues that duress eliminates criminal intent. Since intent is an element of the crime, he continues, the burden of showing there was no duress should be on the prosecution. However, Graham fully intended to rob the clerk at the Dari Fresh. His defense is his criminal act should be excused because it was not completely voluntary. The defense of duress does not negate an element of the crime but is a special defense (see Witkin, Crim.Proc., § 343). It was proper to place the burden of showing duress on the defendant by a preponderance of the evidence.

Graham also contends the court erred in refusing his request for an instruction on diminished capacity. Because he feared for the safety of his girl friend and her child, Graham claims he could not form the necessary specific intent. It is proper for the trial court to refuse to give a requested instruction if there is no evidence to which it could relate (see People v. Ortiz, 63 Cal.App. 662, 667, 219 P. 1024). Here there was no evidence showing intoxication from alcohol or drugs or mental derangement short of insanity to support an instruction on diminished capacity (see People v. Mosher, 1 Cal.3d 379, 391, 82 Cal.Rptr. 379, 461 P.2d 659).

Judgment affirmed.


1.  Graham's counsel brings to our attention only three states where the burden of proving duress has been considered. In Ohio the burden of proving duress is on the defendant, at least for general intent crimes (State v. Sappienza, 84 Ohio St. 63, 95 N.E. 381). A Texas appellate court has upheld placing the burden of proving duress on the defendant but suggested it not be done in the future (Stafford v. State, 104 Tex.Cr.R. 493, 284 S.W. 581). The Georgia court affirmed a decision placing the burden on the defendant, saying he only had to raise a reasonable doubt in the mind of the jury (Pirkle v. State, 11 Ga.App. 98, 74 S.E. 709).

GERALD BROWN, Presiding Justice.

AULT and WHELAN,* JJ., concur.

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Docket No: Cr. 6825.

Decided: February 27, 1975

Court: Court of Appeal, Fourth District, Division 1, California.

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