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Name: People v. Lewis
Case #: E033084
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/22/2004
Subsequent History: Rev. den. 10/27/04

In appellant’s trial for kidnap, assault with a deadly weapon, and torture, the jury was instructed on duress and necessity based on CALJIC 4.40 and 4.43. The court refused appellant’s request to add language to inform the jury that duress negated criminal intent, and that if the evidence raised a reasonable doubt as to whether the danger negated the intent, they must find that the intent was not formed. Appellant argued that the close juxtaposition of the instructions regarding duress, and necessity (which references a preponderance of evidence) caused confusion about the burden to show evidence of duress. The appellate court held that the court’s refusal to instruct as requested was not error. The court gave proper instructions on duress, reasonable doubt, circumstantial evidence, and intent. Instructions must be viewed as a whole. Nor was it error for the court to have failed to give instructions on battery and aggravated battery as lesser included offenses of torture. A defendant may commit torture without necessarily committing a battery. Battery is not a lesser included offense of torture under either the elements test or the accusatory pleading test, and thus the court was not required to instruct the jury on battery. Further, any instructional error on this issue was harmless, given the evidence of torture. Also, there was no requirement that appellant personally inflict the great bodily injury in order to be convicted of torture. An aider and abettor is not exempted from liability for prosecution.