California Criminal Jury Instructions (CALCRIM)

CA 3403. Necessity

The defendant is not guilty of <insert crime[s]> if (he/ she) acted because of legal necessity.

In order to establish this defense, the defendant must prove that:

1. (he/she) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else);

2. (he/she) had no adequate legal alternative;

3. The defendant’s acts did not create a greater danger than the one avoided;

4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil;

5. A reasonable person would also have believed that the act was necessary under the circumstances;

AND

6. The defendant did not substantially contribute to the emergency.

The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.