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, regardless of whether the prosecutor actually seeks the death penalty. Accordingly, the trial court did not err here in failing to give CALJIC 4.40, to instruct the jury on duress as a defense to the murder charge, and trial counsel was not ineffective in failing to request the instruction. The Court of Appeal also stated, in dicta, that the evidence was insufficient to have required the trial court to give a modified form of CALJIC 4.40 on the kidnaping charge, and that it would not have been error had the trial court failed to do so.