dissenting.
I respectfully dissent because I believe this court has erroneously imported elements of the choice of evils defense into the defense of duress, conflating the two, contrary to the plain language of section 18-1-708, C.R.S. (2010). In addition, I disagree with the majority's characterization of the record that there was "simply no evidence" from which a reasonable jury could find that the defendant acted under duress. In my view, Speer was entitled to a jury instruction on the defense of duress because he presented the requisite "scintilla" of evidence that he acted under a "threatened use of unlawful force" against him and his brother that "a reasonable person in his situation would have been unable to resist." § 18-1-708; People v. Saavedra-Rodrigues, 971 P.2d 223, 228 (Colo.1998). Thus, I would affirm the court of appeals' ruling that the trial court's erroneous refusal *1123to give the defendant's proffered duress instruction requires us to reverse the conviction and remand for a new trial. Because I would affirm the judgment of the court of appeals on that ground, I would not reach the defendant's arguments regarding his challenges for cause to two prospective jurors who worked in airport security.
I.
The majority holds that a defendant is not entitled to a duress instruction unless the jury is "presented with evidence from which it could find that given the imminence of the threat, violation of the law was the defendant's only reasonable alternative." Maj. op. at 1120. The majority concludes that the defense of duress is unavailable as a matter of law where the defendant "alleges only threats of remote or future injury, made under cireumstances revealing present opportunities to notify law enforcement and seek their protection without immediate risk to himself or his brother." Id.
This court has imported both "imminence" and "no reasonable alternative" requirements into the statutory defense of duress, even though these requirements appear nowhere in section 18-1-708. In my view, this error stems from a conflation in our case law of the defenses of duress and choice of evils. This case represents the first time that this court has declared the two requirements to be necessary elements of the defense of duress since the legislature disentangled duress from choice of evils through a 1988 amendment to the duress statute. Unfortunately, despite the legislative amendment distinguishing duress from choice of evils, the majority continues unnecessarily to conflate the two defenses, contrary to the statutory language.
As an initial matter, People v. Garcia, 118 P.3d 775, 780 (Colo.2005), cited by the majority, construed a statutory affirmative defense as a matter of law, but in no way supports the majority's proposition that "the determination of the precise elements" of an affirmative defense is a question for the court. Maj. op. at 1119. Rather, courts construe the elements of a statutory defense, but do not create them.
As we have recently observed, the provisions of the criminal code and other Colorado statutes govern " 'the construction and application of any defense to a prosecution for such an offense."" Oram v. People, 255 P.3d 1032, 1036 (Colo. May 16, 2011) (quoting § 18-1-108(1), C.R.S. (2010)). The legislature has abolished not only common law offenses, but also common law defenses. Id.; § 18-1-108(1); § 18-1-104(8), C.R.S. (2010). Thus, affirmative defenses in »Colorado are defined by the General Assembly in the Colorado Revised Statutes. Oram, 255 P.3d at 1086.
Here, the majority holds that, to be entitled to a jury instruction on the defense of duress, a defendant must present evidence of both the "imminence" of the threat, as well as evidence that the defendant had no "reasonable alternative" available to committing the crime. The majority's articulation of these elements of duress finds no support in the General Assembly's codification of the defense in section 18-1-708.
Colorado's duress statute provides:
A person may not be convicted of an offense, other than a class 1 felony, based upon conduct in which he engaged at the direction of another person because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist. This defense is not available when a person intentionally or recklessly places himself in a situation in which it is foreseeable that he will be subjected to such force or threatened use thereof. The choice of evils defense, provided in section 18-1-702, shall not be available to a defendant in addition to the defense of duress provided under this seetion unless separate facts exist which warrant its application.
§ 18-1-708 (emphasis added). The pattern jury instruction follows these statutory elements, see CJI-Crim. 7:09, as did Speer's proffered jury instruction in this case.
Colorado's duress statute contains no mention of "imminence," or the unavailability of "reasonable alternatives." In my view, this *1124court has erroneously imported these elements from the related, yet distinct affirmative defense of choice of evils.
Although "[mJlodern cases have tended to blur the distinction between duress and necessity," under common law, the defense of necessity, or choice of evils, traditionally concerned physical forces beyond the actor's control that rendered the actor's conduct the lesser of two evils, whereas the defense of duress arose where coercion had its source in the actions of other human beings. See United States v. Bailey, 444 U.S. 394, 409, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).
The requirements of "imminence" and the unavailability of any "reasonable legal alternative" make logical sense in the context of choice of evils because the choice of evils defense "is based on a real emergency involving specific and imminent grave injury that presents the defendant with no alternatives other than the one taken." Andrews v. People, 800 P.2d 607, 609 (Colo.1990). Indeed, as now codified in the Colorado criminal code, the "choice of evils" defense is available only when the defendant's conduct "is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur." § 18-1-702, C.R.S. (2010) (emphasis added).
Although "imminence" was an element of duress at common law, the General Assembly chose not to include this requirement when it codified the defense of duress in 1971.1 Compare Ryan v. People, 60 Colo. 425, 430, 153 P. 756 (1915) with § 18-1-708. Similarly, the unavailability of any "reasonable alternative" appears nowhere in section 18-1-708. Rather, these requirements appear to have been imported into the statute by this court's conflation of the defenses of choice of evils with duress.
In my view, this conflation cecurred in Bailey v. People, 630 P.2d 1062 (Colo.1981), the most recent case from this court relied on by the majority for its articulation of the defense of duress,. Unlike the case before us, Bailey did not involve a jury trial or the evidence necessary to warrant a duress instruction, and thus did not concern the ga-tekeeping function of the trial court. Rather, in Bailey, this court reviewed and upheld the defendants' convictions on charges of sale and conspiracy to sell narcotics following a bench trial, concluding that the record supported the trial court's rejection of the defendants' defenses of entrapment and duress. There, we stated:
The defense of duress is unavailable unless a defendant shows a specific and imminent threat of injury to his person under circumstances which leave him no reasonable alternative other than the violation of the law for which he stands charged; mere speculation that injury may occur is not sufficient.
Id. at 1068-69 (emphasis added).
We cited the court of appeals' decision in People v. Trugillo, 41 Colo.App. 228, 586 P.2d 235 (1978), for this articulation of the defense of duress. Tryjillo, in turn, was quoting People v. Robertson, 36 Colo.App. 367, 548 P.2d 533 (1975), an earlier choice of evils case from the court of appeals. There, the court of appeals held:
For [choice of evils] to be available here, it must first be shown that defendant's conduct was necessitated by a specific and imminent threat of injury to his person under cireumstances which left him no reasonable and viable alternative other than the violation of the law for which he stands charged.
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*1125Put simply, the threat to defendant's person must be so definite, specific, and imminent as to rise beyond mere speculation.
Id. at 584-85. Through its citation of Tryjil-lo, this court essentially imported, without explanation, the requirements of the choice of evils defense into the defense of duress. Yet, shortly before Bailey was decided, this court twice relied directly on the identical passage in Robertson, not for duress, but as an articulation of the choice of evils defense. See People v. McKnight, 626 P.2d 678, 681 (Colo.1981); People v. Strock, 628 P.2d 42, 44 (Colo.1981).
In 1988, the General Assembly amended the duress statute, adding the sentence, "The choice of evils defense, provided in section 18-1-702, shall not be available to a defendant in addition to the defense of duress provided under this section unless separate facts exist which warrant its application." Ch. 124, see. 15, § 18-1-702, 1988 Colo. Sess. Laws 712. Separating the two statutes in this sense should have led to the disentangling in our case law of the elements of these distinct defenses. Since that amendment, this court has not held that the statutory affirmative defense of duress requires a defendant to present evidence of "imminence" or the unavailability of any "reasonable alternative"-until today.
Given that Bailey involved the review of a conviction following a bench trial (and thus a different standard of review than applies to the denial of a requested jury instruction), and given the 1988 amendment to the duress statute, I would take this opportunity to realign our articulation of the requirements of duress to conform to the plain language of section 18-1-708. The majority's approach continues unnecessarily to blur the line between the courts and the legislature by importing elements into the defense of duress that find no basis in the language of the statute. See Shelter Mut. Ins. Co. v. Mid-Century Ins. Co., 246 P.3d 651, 661 (Colo.2011) ("We will not judicially legislate by reading a statute to accomplish something the plain language does not suggest, warrant or mandate.") (quoting Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo.1994)); Jones v. People, 155 Colo. 148, 154, 393 P.2d 366 (1964) (This court is "without power to change the law" enacted by the legislature.).
The operative language of section 18-1-708 is that the threat of unlawful foree be one that "a reasonable person in [the defendant's] situation would have been unable to resist." The imminence of the threat and the availability of reasonable alternatives may be factors for the jury to consider in determining whether a reasonable person in the defendant's situation "would have been unable to resist" the threat, but nothing in the legislature's codification of the defense requires a defendant to establish imminence or the unavailability of reasonable alternatives before he is entitled to a jury instruction on duress.
IL.
I further disagree with the majority's conclusion that there was "simply no evidence" from which a reasonable jury could find that the defendant acted under duress. In my view, Speer's testimony provided the requisite "scintilla" of evidence to warrant a duress instruction.
We have long held that to be entitled to an instruction on a theory of defense or an affirmative defense, a defendant need present merely a "seintilla of evidence," alternatively stated as "some credible evidence" or "any credible evidence." Saavedra-Rodriguez, 971 P.2d at 228; Lybarger v. People, 807 P.2d 570, 579 (Colo.1991); see also § 18-1-407(1), C.R.S. (2010) (to raise an affirmative defense, a defendant must present "some credible evidence" on the issue). Even the highly improbable, self-serving testimony of the defendant is sufficient to establish entitlement to a duress instruction if the testimony establishes some basis for each element of the defense. See Lybarger, 807 P.2d at 579. In considering whether a defendant is entitled to a requested instruction, we consider the evidence in the light most favorable to the defendant. Cassels v. People, 92 P.3d 951, 955 (Colo.2004).
According to Speer, an acquaintance named Jamar Dickey threatened to kill or violently hurt him and his fifteen-year-old brother if Speer did not rob a third party to retrieve money that Dickey paid in a sham *1126car purchase. Speer testified, "[Dickey] told me that if I didn't do it or somehow it got messed up, that he would violently hurt me," and "he told me that he'll kill my little brother too."
Speer testified that Dickey planned the robbery and that Dickey held a gun while he informed Speer of the plan; Dickey told Speer that Speer had no choice. Speer also testified that the "only reason" he performed the robbery was his fear of Dickey and that he never would have been in that position but for the threats.
Based on his experience, Speer had reason to believe that Dickey's threats were eredi-ble. Speer testified that Dickey had threatened him at gunpoint before; when Speer confronted Dickey about the sexual assault of a woman whom Speer had asked Dickey to look after, Dickey pointed a gun at Speer and "told me if I'm tripping over a female, then he'll kill me over a female." Speer testified that Dickey was so dangerous that even Dickey's incarceration or a restraining order could not protect Speer. Additionally, Speer said he had personal knowledge that Dickey had assaulted other people in the past.
Dickey provided the gun and car for Speer to use in the robbery. Speer testified that, despite having a gun, he was in continual fear of Dickey while in his presence. Even during the brief periods when Dickey was out of Speer's presence, Speer felt Dickey's threat to his brother did not abate: according to Speer, Dickey knew where Speer's little brother lived and Speer did not have a telephone to warn his brother. Speer testified that, if at any point he were to abandon Dickey's plan, Dickey could hurt or kill Speer or his brother "at any time."
On cross-examination, the People repeatedly asked Speer why he did not abandon Dickey's plan at certain junctures. Each time, Speer testified that he did not feel that he could. At least seven times, in reference to different points throughout the execution of the plan, Speer testified, "I didn't think I could" or "I felt I couldn't" abandon the plot given Dickey's threats.
Speer's testimony also indicated that his fear of Dickey continued after the completion of the failed robbery: he was afraid to tell Dickey he did not retrieve Dickey's money from the victim; he testified that he cried during police questioning and led to law enforcement about knowing Dickey even as he was told by the detective that "everybody knows Jamar" and that Speer was going to spend the rest of his life in prison.
Viewed in the light most favorable to the defendant, Cassels, 92 P.3d at 955, I believe the record establishes that Speer's testimony presented at least a "scintilla" of evidence that a jury could reasonably believe there was a credible threat to Speer's safety and his little brother's life, and that a reasonable person in Speer's situation would have been unable to resist Dickey's orders. Ultimately, it is the jury's role to accept or reject the defense, but on this record, Speer was at least entitled to the instruction. As noted by the court of appeals, Speer's acquittal of attempted murder and first degree assault suggests that the jury found his testimony credible in part. People v. Speer, 216 P.3d 18, 24 (Colo.App.2007). Had the jury been instructed on the defense of duress and believed Speer's testimony, the other verdicts might also have been different. Accordingly, I respectfully dissent.
I am authorized to state that Chief Justice BENDER and Justice MARTINEZ join in this dissent.
. The absence of an imminence requirement in the duress statute is noteworthy, considering that the legislature expressly requires a threat to be "imminent" for other affirmative defenses. See, eg., §§ 18-1-702(1), C.R.S. (2010) (choice of evils defense justifies use of physical force "when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur"); 18-1-704(1), CRS. (2010) (self defense justifies use of physical force to defend oneself or a third person from "the use or imminent use of unlawful physical force" by another person); 18-1-707(2)(a), CRS. (2010) (peace officer is justified in using deadly physical force to defend himself or a third person from the "use or imminent use of deadly physical force"); 18-1-707(7), C.R.S. (2010) (private person is justified in using deadly physical force to defend himself or a third person from the "use or imminent use of deadly physical force").