Criminal Law Class Notes Sunday, December 18, 2011
May 29, 2002
Introduction, pages 1-25 not discussed, overview only.
Model Penal Code - not memorized for this class.
Page 31, Chapter 1 -
Case 1. Jones - Jones, an employed college graduate, shot and killed his alcoholic, abusive
father.
Case 2. Green - burglary
What is the goal of punishment?
Is the goal of punishment retribution or reformation?
To Correct behavior - focuses on the criminal
Discourage repetitive acts - focuses on society at large for the purpose of:
Promote social order.
Who decides - local jurisdiction, federal government?
Why have laws - Agreement on behavior.
Discussion of economic status and criminal activity, Cf. Winona Ryder.
Thrill of stealing as intent compared to Theft by necessity (e.g., for food)
Should the punishment be the same or different - by what standard is the punishment decided.
Subjectivity is present in the law - previous crimes committed by the criminal.
Purchase power of the attorney - public defender vs. private attorney.
Differential application of law by victim - different punishment for killing a public officer vs. a
member of the public at large.
Jackets now worn by officers (Police, DEA, ATF, INS) that identify them as a public officer so
that the public has notice of who they are dealing with so they know the impact of the criminal
action taken against the public officer.
Deterrence - retribution or utilitarian? Past or future impact.
Assumption 1 - deterrence will only work if people want to be good.
Shared values are needed. Are people rational?
Decision of punishment (cost vs. benefit).
Cost - Benefit of Rational Analysis (CBA)
Chance of getting caught with the degree of punishment given versus the amount of benefit.
Location of the crime, benefits of jail (for some people it is a better option).
Assumption 2 - people have an alternative to crime (irrational behavior, low quality of life).
Deterrence is decided by Cost Benefit Analysis.
General deterrence - for the public at large.
Specific deterrence - for the individual deciding whether to commit a crime.
Added facts - birds of a feather.
General deterrence - Should Green get 30 years to deter everybody else? Jones is a repeat
criminal. How does the public learn that Green got 30 years?
Cf. 3-strikes, people are still committing crimes despite everyone knowing about it.
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Criminal Law Class Notes Sunday, December 18, 2011
Under specific deterrence, will Jones kill again? Probably not. Specific case here, he turned
himself in. Why should Jones be punished at all? As general deterrence to the public.
Jones was a Crime of Passion murder - it cannot be deterred, since they occur in a non-rational
decision.
Deterrence falls short in manslaughter (crime of passion).
Life-imprisonment as a deterrence, some people will still feel they can get away with crime, so
no deterrence will be effective.
Review on Green - what punishment should Green get?
Should he get more “on the front end” to deter others?
He has a history of theft and he was caught this time.
Why what until he does another crime - keep him in prison, “up front” to prevent his further
crimes.
Rehabilitation as a model - to reform / correct the behavior of the criminal.
Educate / treat them out of the criminal behavior.
How does rehabilitation prevent crime.
Assumption - everyone has the ability to conform.
Rehabilitation - does it change their CBA?
Implies that it changes /alters the character of the individual.
Does a rehabilitation imply blame that they have done something wrong? Yes
Are people responsible for who they are? Does rehabilitation say the person was wrong for their
own behavior.
Rehabilitation - training for expectations of future behavior.
Does it blame society, does it blame anybody.
Rehabilitation - its about character.
The pure goal is character conversion.
Drug abuse rehabilitation - does it free the person from abuse (craving?)
Rehabilitation - does it make society feel better about their social order?
Rehabilitation has to be individualized to the criminal.
Not done because it is too costly.
Cf. California Supreme Court Justice Rose Bird where she and two others Justices were voted
out. Prop. 115. About that time the state added Life without Parole to prevent people from being
released for severe crimes after a few years.
Assumptions of rehabilitation:
The criminal wants to be rehabilitated.
The criminal can be rehabilitated.
Society will overlook rehabilitation as a negative effect against the person.
Society will provide assistance to people coming out of rehabilitation.
What model of punishment will work?
Can a combination of punishment be used.
Rehabilitation is not wholly successful.
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Criminal Law Class Notes Sunday, December 18, 2011
Incarceration - preventative, moves crime from society to prison, less sympathy for prison crime.
Incarceration presumes that the criminal will continue to do crime and that another person will
not replace them and not commit more crimes after their release.
3-strikes as a purely incapacitation model, assumes that criminals will not be replaced.
Some rates are going down, but the perception is that it is not going down.
Media presentation - revenue generation, classification of crime, changes in public interest,
changes in public permissive - reduced stigma to report crimes.
Each theory in vacuum does not work.
Pure incapacitation does not work.
Practical impediments - why don’t these work.
Unions oppose criminals working on the theory that it takes works away from non-criminals.
Utilitarianism - No needless punishment.
American model - retribution - eye for an eye, payback by society, revenge. Punishment justified
by what the criminal did, repayment of the criminal’s debt to society.
Example - Bundy - serial killer
Hypo - a pill that make a serial killer never kill again.
What point of view is used, victim - no amount of payment (making the victim or victim’s family
person whole) will suffice - society view - what was the crime worth?
Retribution - does not have to be proportional.
Pure Retribution model - Jones (killed somebody) would be punished more than Green (just
burgled).
Do any models standing alone seem to work? No.
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Criminal Law Class Notes Sunday, December 18, 2011
June 3, 2002
Theories that we covered last week.
Preventative - (a.k.a. utilitarianism)
Rehabilitation - teach the criminal how to behave in accordance with society.
Incapacitation - imprisonment, execution
Deterrence of criminal acts by others in society.
Retribution - corrective, not preventative, don’t confuse with revenge, you owe society for past
wrongs. Revenge is generally punishment beyond what society feels is owed. It does issue blame
to the defendant.
Denunciation - falls under retribution. When defendant won’t act criminally again, and wouldn’t
prevent others from doing the criminal act. Punishing the defendant just so other people won’t
think the act was OK.
Theories of punishment - it is wrong to execute an insane or mentally retarded.
One theory is that the defendant is being punished for what they consciously did, and if they
don’t understand that what they did was wrong, then it is wrong to execute them.
Society has an obligation to protect the insane.
Part of the point is to teach the defendant that what they did was wrong, introduce the defendant
to the idea that what they was morally wrong. Perhaps society waits to execute the insane until
they are sane so that society feels better about their decision.
The defendant should rationally know and appreciate why he is being executed, and that gives
satisfaction to the relatives of the victim. Executing an insane person serves no purpose to them
(they don’t get it).
Wait - we want the defendant to understand why he is being killed.
It’s so society get it.
It killing the insane cruel and unusual punishment? If so, why.
Kill the right person, e.g., Cybil.
Drive the defendant to the point of wanting mercy/forgiveness.
If the person isn’t punished - they don’t pay for their crime.
It isn’t wrong to be insane, and we don’t want to punish people and make it seem like they are
being punished for being insane.
Allow a person to be sane so they can develop their defenses.
Compare insanity to mental retardation. Is the principle the same? Retardation does not change.
Retardation may be just innocence. Paternalistic response (theory) of society as a mitigating
factor.
Two reasons why there is Death Row:
(1) The prisoners have nothing to lose and so they are more dangerous to society.
(2) We want to watch them so they can’t kill themselves before we execute them.
We want the defendant to have a moral understanding of what is going on.
If we take out the component of knowledge by the defendant, then we are not killing people
“humanely” - we are better than that.
Last weeks discussion about Japanese policies - the US and Japan are two radically different
cultures and are not interchangeable.
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Criminal Law Class Notes Sunday, December 18, 2011
Page 104, Koon v. United States
L.A. police pull over and beat Rodney King.
Federal prosecution for State Violation of civil rights under the color of authority (§ 1983).
First prosecution state prosecution was for assault with a deadly weapon and excessive use of
force.
Same factual issue - they beat him up.
Different sovereignties can prosecute same set of facts under different sovereign statutes.
Defendant and U.S. both appealed.
Defendant appealed the conviction.
The government appealed the sentence, but can’t appeal an acquittal.
Federal sentencing guidelines are complicated.
Usual complaint is that there is too little discretion. Here the U.S. appealed abuse of discretion
by the district court.
See page 105, 106
Six plus the underlying offense (21) 4 for dangerous weapon. Gov’t asked for 4 more for serious
bodily injury, court said that the injuries were lawful, but court gave +2 for bodily injury.
Under the guidelines, a 27 was 70+ months, court took of 5 levels for King’s conduct, then took
off 3 more levels for officers as targets in prisons, would lose their jobs and not get hired
anywhere, and burdensome prosecution, and they were not likely to do this again, leaving them
at 19, so they got 30 months.
Appeals Court affirmed the convictions but looked at the case de novo, (matter of law) and made
changed the standard.
Supreme Court affirmed the sentences, and the 5 level reduction for King’s conduct as that was
typical, it was built in. Supreme Court said Appeals Court was wrong and abused their
discretion. Appeals courts should not have looked at the case de novo. The district court was not
patently wrong.
Supreme Court found the career loose and threats to the public were unreasonable, since career
lose is a given (tough luck) and the recidivism was built-in to the numbers.
Danger in prison was a proper factor to consider.
The court seems to contemplate that abuse of power is its own crime (§1983)
June 5, 2002
Why must there be an act? - See the new Tom Cruise movie!
The needs for actus reus.
Proctor v. State - (1) keeping a place with (2) intent to sell alcohol from a building.
Charges derived from Proctor’s own statements.
Owning property is a legal act, so the first part of the statute is improper.
Statute is not valid because it makes a legal act, illegal.
Acts depend upon intent.
There has to be act with the intent.
What if Proctor tells us that he got the place to sell liquor?
The act of renting or owning is a legal act.
The trouble with punishing thought is that no one knows what a person is thinking; almost
everyone has “bad thoughts.” We want people to have free choice to act or not act, so statutes
require an act. Possession with intent to sell is distinguished because the drugs themselves are
illegal. Factors - cash, packaging, type of drugs, what the person tells people.
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Criminal Law Class Notes Sunday, December 18, 2011
The court could not define what illegal act Proctor had committed.
The statute said that no act was necessary for criminal liability - since owning property is legal,
the statute made a legal act illegal and contrary to public policy for allowing people to use their
property in their benefit.
Unexecuted intent - must give Proctor the benefit of the doubt - the statute punishes keeping a
place, which is a legal act otherwise, with just thoughts of doing something,.
A person’s admission regarding simple intent is not sufficient because the admission might be
false or coerced and the person might be talked out of it. Proctor caused no harm, a person
buying talcum thinking it was heroin has intent to possess heroin and is performing an act
towards its possession.
It is a crime to sell bogus drugs because it increases the likelihood that the person will he harmed
and creating an environment of harm.
Does the act underlying an act have to be illegal for the thought to be illegal? Example:
September 11th - should the hijackers have been arrested when they took flight training.
Reverse the order - someone manifests the intent, then does an act. Proctor made his statements
prior to any act being committed.
The court said the statute did not prescribe an act that could be illegal.
See Note 5, page 120, Wash. Rev. Code §9.19.050.
Burglary tools have only criminal use, except for use permitted by tradesmen.
Houses and building have a general legal use.
6) People v. Valot - the crime was control of the room with inferred control of an illegal
substance. Some people agree with the dissent that the People had not shown that Valot had
brought or used the marijuana.
“Constructive possession” - you don’t have it in your hands but it is yours.
Responsibility for possession of marijuana compared to the open alcohol container law - a
teenager lost his newly minted license because his grandfather beside him had a flask of booze in
this inside jacket pocket.
Infractions are penalized only with money, not loss of freedom, so the law is more strict in how
those are handled - no attorney representation is permitted in infraction court, just the person and
the judge.
Valot - “hippie-type” people in the room.
Rich kid in prep school - proximately used for culpability of students to encourage them to self-
regulate, e.g., leave unlawful or unpermitted activity.
Page 121, B. Omissions
Should people be forced to act?
Should people be forced to report a crime? Is this is moral obligation to society? Should it be a
crime to not report a crime? Issues - Personal safety, convenience. How far should a person be
required to go to report a crime. Is this a Good Samaritan law?
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Criminal Law Class Notes Sunday, December 18, 2011
Case example - Jeremy (?) Strohmeyer & Mark Cash, rape & murder of the girl by Strohmeyer.
Cash was run out at Cal. for his inaction, a social censure.
Civil liability - in some cases a person is held liable for their actions toward Samaritan-ship that
end up in injury.
If a law were enacted requiring a person to report crimes or aid society under penalty of a
criminal act, what outcome?
Could a person be held criminally liable for not getting involved.
Where does social responsibility end? Should serving meals at Glide be required?
Would it be then illegal to not feed a starving person?
But you have to have notice that you are doing something.
Should it be illegal for a male to walk into a woman’s restroom with a girl?
Distinguish between the moral and the legal.
Jones v. U.S. - Trial court reversed, court reversed, saying more information was needed by the
jury regarding Jones’ duty to the child.
Circumstances under which we have a legal duty to act:
first, where a statute imposes a duty to care for another;
second, where one stands in a certain status relationship to care for another;
third, where one has assumed a contractual duty to care for others; and
fourth, where one has voluntarily assumed the care of another and so secluded the helpless
person as to prevent others from rendering aid.
People v. Newton - Newton’s presence in New York was involuntary and entirely unintended
(fortuitous). Newton had been unruly. Newton had no way of knowing he was going to be
subjected to New York’s laws.
Martin v. State - Martin’s presence on the roadway was not voluntary.
People v. Grant - Diminished capacity - Grant was at a bar drinking and got arrested when he
hit an officer. Were his actions voluntary? Grant suffered from psychomotor epilepsy. The jury
was not given instruction on how to consider his disability. The jury found him guilty.
How much did Grant know about his seizure possibility and his drinking?
Sleepwalking - involuntary, not liable.
Sleepwalking case - Arizona
Status Case - Robinson v. California
Just by being, Robinson was guilty. He committed no act. He was punished for being an addict,
not just addicted and taking drugs.
June 10, 2002
Chapter 2, cont.
Status Crimes - Robinson v. California, U.S. Sup. Ct. said that addiction was an illness and
therefore involuntary and a status that cannot be a crime.
Powell v. Texas - Powell was arrested for being drunk, not for being an alcoholic.
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Criminal Law Class Notes Sunday, December 18, 2011
Robinson, Powell - The status cannot be punished, but the acts taken may be punished.
Pottinger - Homelessness is a status, like addiction or alcoholism.
Specificity
Chicago v. Morales - loitering. Vagueness in statutes.
I - Key elements are (1) reasonable belief that a street gang member is present, (2) loitering is
occurring, (2) order to disperse given, (4) failure to abide by the order.
At least one person a member of a street gang. A street gang is any ongoing association of 3 or
more persons engaged in group criminal acts (FN, page 164).
Con Law effects of the statute- free association and freedom of speech.
What is “apparent purpose”? The statute is vague and arbitrary. The order to disperse must have
some kind of notice. Being told just violated the statute is not sufficient. The officer has all the
discretion to enforce or not to enforce the statute. Potential for profiling.
Defined Target Zones in a community setting are difficult for the general population to
understand, so such zones are not allowed.
The act - the Constitutional Requirement of an actus reus is that past, voluntary, conduct
committed within the jurisdiction that is specified in advance by statute.
Chapter 3, Guilty Minds
Why have a guilty mind - because the act, intent to do the act and capacity to do the act are
required under the constitution.
Second degree burglary - walking into a building with the intent to commit a crime therein.
Reckless state of mind - doing something that you knew and disregarded that had a certain or
substantial risk of harm to another person, MPC - greater state of criminal culpability.
Negligent state of mind - doing something that a reasonable person would of know there was a
risk of harming someone, MPC - lesser state of criminal culpability.
U.S. v. Balint - what was charged, knowledge that they were selling a narcotic, or knowledge
that the narcotic was regulated. Balint was a dealer of narcotics.
Balint defended that the indictment did not state that they knew the drugs were narcotics. The
statute did not make such knowledge an element of the offense. The District Court quashed the
indictment.
The U.S. Supreme Court said that a while a person is required to know the law (they are
responsible for his actions), he should have know that the narcotic was on the list and reversed
the District Court.
U.S. v. Dotterweich - Dotterweich was president of the company. Malum prohibitum v. malum
per se. The punishment was five years in prison. Violation of the FDA act.
(2) US v. Park - “the Act imposes not only a positive duty to seek out and remedy violations
when they occur, but also primarily, a duty to implement measures that will ensure that
violations will not occur.”
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Criminal Law Class Notes Sunday, December 18, 2011
(3) Morissette v. US - The statute did not have a knowledge requirement, and the U.S. Supreme
Court was reluctant to insert a knowledge requirement. “The contention that an injury can
amount to a crime only when inflicted by intention is no provincial or transient notion.”
Court did not rule on whether Morissette knew or not if the property was abandoned, but did not
want to establish a strict liability for removing abandoned government property.
June 12, 2002
Mental stuff - Mens Rea - The Guilty Mind
Page 202 - Regina v. Faulkner
Was Faulkner malicious - no. Was he reckless - yes.
Did he consciously disregarding a known risk that the rum would catch fire?
Court found him guilty. Appeal based on his lack of knowledge that fire would result.
Appeals court gave mixed judgments.
Is he blameworthy? He was committing a crime of theft of the rum. He tried to plug the hole, but
he spilled the rum, then lit a match to see the what he was doing so, but the rum ignited.
This case foreshadows responsibility of bad intent to the consequences of bad acts, e.g., felony-
murder rule and associated transferred intent crimes.
Page 223, Regina v. Prince -
Statute required that he knew that she was under the age of 16 - the prosecution did not have that
he knew that she was under 16. Strict Liability enacted in statutory age-related cases. This is like
a statutory regulation case. The opinion is not protect woman, but to protect the father’s right of
her as property and to whom he would release her to.
Page 225, Justice Blackburn: “The man who has connection with a child, relying on her consent,
does so at his peril, if she is below the statutory age.”
Page 226, Baron Bramwell: “This opinion gives full scope to the doctrine of mens rea.”
Page 227 Justice Denman, “The belief that she was eighteen would be no justification… By
taking her, even with her consent, he must at least have been guilty of aiding and abetting her in
doing an unlawful act, viz. in escaping against the will of natural guardian from his lawful care
and charge.
Page 227, Justice Brett: “… I think that it is proved that there can be not conviction for crime in
England in the absence of a criminal mind or mens rea.”
Would Denman’s opinion have changed if she was 22? No - he was still taking her without her
father’s permission.
Brett is the only one who wanted to overturn the conviction.
Page 230 People v. Ryan
The court said that if the statute requires knowledge, and the crime is not one that should be a
strict liability crime, then knowledge is required. In Federal court, the weight of drugs is factored
into sentencing.
Page 237 State v. Guest - Prosecution challenges a jury instruction that permits reasonable
mistake regarding a victim’s age. This case is for an advisory opinion by the high court. The high
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Criminal Law Class Notes Sunday, December 18, 2011
said that age is one of the elements that the prosecution must prove, so the court says mistake
should be allowed. The defense and the People agreed that a reasonable mistake had occurred.
Page 254 - (3) Hopkins v. State, 69 A. 2d 456 (MD. 1950):
Soliciting marriage - talking to the Attorney
Court rejects argument, you can’t rely on the attorney.
June 17, 2002
No class on Wednesday, make-up on review night in July.
Action and a guilty mind (mental state) as prescribed by statute. Homicide is the only crime that
requires a result. Discuss causation during homicide.
Theft - evolving commerce, developed from forcible taking, involving a trespass; later involved
cases without trespass (embezzlement, false pretense) were created later.
P1017 - Mitchneck - The employees sued Vagnoni for theft of their wages. In C/L -
Mitchneck’s taking was neither trespassory, nor was it a taking of the property of another.
Page 1019 - Carrier case - mixed opinion if not theft since he had legal possession of the goods,
so it was not trespassory taking.
Page 1022, The King v. Pear - back-dating the convergence of intent and act to the point of
possession. At the common law, the courts were trying to protect property. At the outset, the law
tried to protect people, then expanded to protect property, but had to expand the point of
concurrence of the act and mind. Purpose of Case: The taking of something under false
pretenses is theft, specifically, larceny by trick, and constitutes a felony. *** The criminal taking
is moved back to the point of possession to fit the needs of intent with concurrence of act.
The taking of money from a client’s trust fund for anything else, legitimate expenses, is
misappropriation of property.
Embezzlement v. theft - a fiduciary trust exists, the property is given for a purpose that the
defendant diverts for their own use.
Page 1026 Topolewski v. State - the boss played along with the transfer, so the taking was not
trespassory and Topolewski was acquitted.
Page 1033, (9) Intent to Deprive Required - State v. Bautista (Hawaii 1997)- Bautista bought a
truck with a check for payment, the check bounced. Bautista returned the truck after the weekend
as requested, but it had almost 600 miles on it, so the vehicle could not be sold as new, and the
value of the truck to the dealer was diminished.” The intent to deprive another of property
implies knowledge that the property in question belongs to another or that another is entitled to
possess it.” Bautista had intended all along the consequences. The Hawaii Supreme Court
overturned his conviction on first degree theft for want of sufficient evidence of significant
deprivation.
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Criminal Law Class Notes Sunday, December 18, 2011
False Pretenses - court is focusing on creating a crime to fit the actions occurring that do not fit
common law trespass.
Page 1037, People v. Sattlekau - larceny by false pretense - defendant must prove a deliberate
intention to defraud, make a material misrepresentation that the victim relied upon and
permanent (transferred property) deprive the victim. He misrepresented himself as a wealthy
man, owning a hotel, and that they would marry. How much of this is material?
Page 1040 - court said that his representation of hotel proprietorship was a material
misrepresentation that she relied upon.
Theft by false pretenses -
Name misrepresentation - not material to fraud of the transfer of the property.
His hotel proprietorship - court said this was material and to her reliance for giving him the
money.
His finances - he said that he was wealthy - and owned a hotel.
His being single and a promise to marry - ancillary factors.
Page 1042 Notes and Questions
(3) People v. Levitas, NY, 1963 - A court convicted Levitas of larceny by fraud for falsifying
repair claims to the rent board in order to raise the rents he charged. The court reversed his
conviction because the false statements were made to the board, not the tenants who paid the
higher rents.
Durland v. United States - mail fraud drops the requirement for lying to a person, just a greater
plan of fraud is sufficient.
Page 1045, (1) An inchoate crime - United States v. King, King inflated individual bids to
include kickbacks to the buyers. The plan never reached fruition, but the U.S. convicted King
anyway. Purpose: The scheme to defraud of 18 USC 1341 is all that is required.
Page 1047, Materiality - United States v. Regent Office Supply, 421 F2d 1174 (2d Cir. 1970).
Purpose of Case: Aggressive sales do not necessarily amount to “fraud”; and must meet the
requirements of fraud to amount to as much.
Trial Court: The U.S. failed to prove actual harm by the aggressive salesmen of Regent, who
stretched facts somewhat, but still delivered the goods and the acceptable prices stated.
Page 1053, People v. Dioguardi See “Godfather” and “The Firm”.
June 24, 2002
Mike Hinkley - substitute professor
Continue Causation:
McCormick v. United States - page 1063
McCormick had supported the bill regardless of whether he received money or not, he did not
threaten them. What was clear from the conduct was that the people giving him the money were
expecting it to influence him - that is what upset people.
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Criminal Law Class Notes Sunday, December 18, 2011
1989 ? CapScam - FBI investigated Willie Brown to offer to buy democratic votes. Paul
Carpenter was convicted of everything, but got a new trial.
III HOMICIDE OFFENSES - Chapter 5
A. INTENTIONAL MURDER (SECOND DEGREE)
Second degree - Intent to kill, or a deliberate act knowing there is a high probability of death,
without premeditation.
Francis v. Franklin - Franklin escaped from custody, kidnapped a dental assistant, approached a
person, tried to steal a car, runs to someone’s door, points a gun at the homeowner, Franklin
demands a car, homeowner slams the door, the gum fires through the door & kills the
homeowner.
Defense of no intent.
Problem - jury instruction that a person presumes the consequences of their acts.
Court says that it negates the prosecution burden to prove the defendant’s intent.
You can’t establish a presumption of intent.
Motivation is not always relevant - it is not intent, it does not replace intent.
Act to knowing -
California - high probably of death.
MPC - practically certain to cause death.
Transferred Intent - If a person intends first degree murder of one person, but kills another
person instead; the mens rea of the victim is intended; malice and premeditation are still present
and we don’t want a killer to get a reduced penalty for the error, so the first- degree murder
charge still carries.
B. PREMEDITATED MURDER (FIRST-DEGREE)
United States v. Watson - murder in cold-blood, Lying in wait.
You have to think about, decide to do it, time passes, then you do it.
It is that time must pass - some appreciable time must elapse. Premeditation and deliberation
may be inferred from sufficiently probative facts and circumstances. The factor of time is not the
amount of time that passes, but that time does pass between deciding to kill, and the killing.
June 26, 2002
Homicide - the killing (accidental or intentional) of a human being by a human being.
Murder - the killing of another human being by a human being with malice (2 degrees) unless
Mitigated, Justified or Excused.
Malice - first degree - deliberate and pre-meditated (torture, bombing)
Malice - second degree - not deliberate and pre-meditated (all others)
Express Malice - expressed intent to kill
Implied Malice - abandoned and malignant heart murder (depraved heart murder)
Implied Malice - intent to do serious bodily injury (SBI)
Implied Malice - deadly weapon doctrine, even with expertise.
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Criminal Law Class Notes Sunday, December 18, 2011
Implied Malice - felony murder rule, intent to kill is not necessary.
Certain (5) enumerated felonies make it first degree: robbery, rape, assault, arson, ?
Not all intents to kill are murder -
Mitigated - partial defense - manslaughter (provoked = voluntary, without malice nor WDP)
Justified - complete defense - self-defense, lawful (police making an arrest)
Excused - complete defense - diminished capacity (insanity, age, involuntary drunkenness)
Implied malice in 2nd degree murder - Knoller - abandoned and malignant heart murder
Was the dog a deadly weapon, snapped at people, previous bites.
Second degree = abandoned and malignant heart
Justified Defense:
Perfect self-defense, honest and reasonable belief that deadly force is necessary.
Mitigated Defense:
Imperfect self-defense falls under voluntary manslaughter. An honest but unreasonable
belief to protect yourself (also heat of passion).
July 1, 2002
Felony Murder Rule - teacher’s favorite for the exam.
FMR occurs during when murder happens by another person, hence it falls under involuntary
murder.
Causation - actual cause and proximate cause are both required.
but for / substantial factors - the actual cause of the chain of events.
proximate (legal) cause - when the law says liability exists.
Why FMR - deterrence of criminal participation with other criminals or engaging in dangerous
illegal activities where death might occur; or encourages felons to act in a safe manner to avoid
the death of others.
Committing certain felonies is a proxy for malice.
The question of FMR is whether the death occurred in the commission of the felony?
How much time must pass?
At what time does the felony end?
When did the felons reach a safe haven?
Page 463, People v. Stamp, strict liability (?)
Misdemeanor manslaughter - death occurs during the commission of a misdemeanor;
Page 475, United States v. Walker - Walker was found guilty of misdemeanor manslaughter for
violating the gun licensing statute.
The purpose of the statute was not to prevent the death of anyone from the gun, but simply to
provide a regulatory control and taxation measure for the jurisdiction. Walker should not have
been convicted of misdemeanor manslaughter for violation of the statute since it was not
intended to prevent the death that occurred.
Foreseeability of harm - a gun is inherently dangerous so society makes use of gun a strict
liability issue.
Todd v. State - misdemeanor manslaughter not applicable where a church congregant died of a
heart attack during a theft.
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Criminal Law Class Notes Sunday, December 18, 2011
Limits on Felony Murder Rule - (a nexus is needed intent to kill is malice; so malice by proxy is
assumed, so intent to kill is not needed for felony murder rule. What is the nexus in the case at
bar? The victim must have knowledge of the crime or be directly injured in the commission of the
crime by the criminal(s), other victim(s) or responding authorities.
Common law: rape, burglary, robbery, arson, kidnapping, mayhem.
Not: Assault - assault is a lesser crime to battery and would merge in if a person were killed.
Foreseeability plays in where some actions are expected to occur in the commission of a crime,
and that deaths may occur in the consequence of this actions, so the felony murder rule would
apply. This is a public policy matter.
Final exam tip - look at whether the crime is one of the enumerated FMR felonies or is the crime
inherently dangerous (supplying cocaine.)
Is supplying cocaine inherently dangerous - when does the felony stop.
Does supplying cocaine satisfy malice?
Felony Murder Rule Applications Questions:
Was the crime one of the enumerated felonies?
Yes - the Felony Murder Rule applies.
Is the predicate crime inherently dangerous so that a death is foreseeable?
Yes - then malice by proxy is held to exist. [Patterson]
Does the predicate crime satisfy malice?
Yes - then malice by proxy is held to exist.
What is the nexus between the predicate crime and the death?
Was the death the result of the victim’s presence in the crime? [Stamp]
Was the death caused by an other participant (conspirator, victim, or officer) in the
crime?
As the felon fleeing and being pursued? [Franks]
Yes - the felony murder rule applies.
No - the felony murder rule does not apply.
Is strict liability for the death reasonable?
Who died?
Co-conspirator - felony murder rule [applies - Cabaltero; does not apply - ??]
Crime victim, third party or police officer - felony murder rule applies [Hickman]
Co-conspirator suicide or self caused death - FMR does not apply [Ferlin]
Who did the killing?
Co-conspirator - felony murder rule applies. [Washington, Cabaltero]
Crime victim, third party or police officer - FMR does not apply. [Washington]
Felony Murder Rule Theories
Protected Person Rule - the felon is liable when the victim is an innocent person.
Proximate Cause Theory: All felons are guilty of all deaths committed (including co-conspirator)
in the perpetration of the felony.
Agency Theory - Washington - it is only felony murder when the death occurs in perpetration of
the felony, so FMR does not apply when third parties do the killing, including those trying to
stop the felony.
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Criminal Law Class Notes Sunday, December 18, 2011
July 3, 2002
Skip Complicity and Rape - won’t be tested on them.
Go see “Minority Report” - bring the ticket stub, or write a report on your thoughts about the
movie.
Chapter 14 Theft
Larceny by Trick - the taking of possession of personal property by fraud.
Theft by False Pretenses - non-trespassing - a misrepresentation of a past or present fact that is
material and relied upon in the person parting with the property, passing of Title, where
“material” goes to the basis of the bargain. “Material” is a question of fact. Nordstrom
situation is not a misrepresentation because security (or any other agent of the owner) knew
about it even if the clerk did not. [In CA this is all just “theft”.]
Money is almost always a transfer of title unless expressly stated as possession only for the
purpose of holding (an bank) or transfer (Western Union)
Embezzlement - a fraudulent conversion of property by another who already has possession of it.
Embezzlement occurs the moment the property is taken without the authority of the
owner/possessor, even if there is intent to replace the property thereafter.
The taking of food in a store with the intent to pay and forgetfulness to pay for it is not theft.
There was no intent to steal (mens rea) so there is no concurrence of actus reus (walking out
without paying) and mens rea (intent to steal).
Burglary - the breaking and entering the dwelling house of another at night-time with the intent
to commit a felony (or theft offense) therein. M/L - breaking and night-time are no longer
required and dwelling house expanded to attached structures and curtilage. Simply opening a
door is sufficient. In CA - a home makes it first degree (felony 2/4/6), another structure is a
second degree [16 months - 36 months (felony) or 1 year in county jail (misdemeanor).]
Other misdemeanors could apply (vandalism, theft).
Robbery - the taking of the personal property from another by force or fear. The force must be
more than necessary to effect the taking. Pickpocket is not a robbery since there is no force
or fear. Purse-snatching may be robbery is fear or resistance results. Does the fear have to
rational, a homeless person asking for money?
Murder - the unlawful killing of human being by another human being with malice aforethought
that is not justified, mitigated or excused. A C/L there is the year and a day rule from the date of
injury to the date of death. In M/L - that is muddled by medical care that could keep the victim
alive more than a year and a day, or less if the victim or family “pulled the plug.”
Malice - intent to kill.
First degree murder - willful, deliberate, pre-meditated, or 1 of the 4 or 5 felony murder rules,
plus enumerated methods such as bombing.
All others are second degree.
Implied malice - abandoned malignant heart, no redeeming social purpose, use of a deadly
weapon, intent to do serious bodily injury, felony murder rule or inherently dangerous offense.
Felony but not inherently dangerous is malicious manslaughter.
Second degree - killing of another human being with malice (intent to kill) Without Wilful,
Deliberate or Pre-meditated.
Voluntary Manslaughter - killing of another human being without malice (no intent to kill) and
with mitigation/adequate provocation, e.g., heat of passion or imperfect self-defense, an
unreasonable belief that deadly force is necessary.
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Criminal Law Class Notes Sunday, December 18, 2011
Involuntary Manslaughter - killing of another human being without malice (intent to kill) and
with mitigation (reckless, negligent).
Pulp Fiction - Travolta (Vincent) / Samuel L Jackson - deadly weapon, being used as a deadly
weapon; inherently dangerous; was he a felon in possession of a weapon?
(a) Second degree by Abandoned / Malignant heart
(b) Involuntary Manslaughter - no intent (malice), grossly reckless or negligent.
?? - Cage - felony murder - assault, battery; merge into murder, is there is intent to kill? Intent to
inflict serious bodily harm implies malice.
First degree: pre-meditated: the music, pulling down the shades, look-up, grabbed by the other
two, wearing gloves.
Chop shop - stolen car, receipt of stolen property, embezzlement of the Rolls Royce - actions are
not related to the killing.
Accomplice FMR
Cruise - Mission Impossible 2
Theft by false pretense, murder - 2 of the older man (breaking his neck), robbery by the taking of
the briefcase, conspiracy, felony murder (airplane into mountain killing the passengers), murder
1 and 2 of the passengers by flying the plane into the mountain was pre-meditated and
abandoned and malignant heart.
Larceny by trick - pilots taking the plane / embezzlement
False imprisonment of the passengers; no kidnapping (change in altitude)
Murphy -
False Imprisonment -
Attempted Robbery - force or fear
Burglary under M/L -
Felony murder if a hostage is accidentally killed.
Get-away driver - accomplice does not have liability in jurisdictions using
Theories: Proximate cause, protected person, agency theory
Connery / C Zeta Jones - Entrapment - - Burglary, larceny, theft (M/L) C/L not tangible when
they pressed enter.
Cage - Gone in 60 Seconds -
Vandalism / Malicious Mischief - breaking in to the cars.
Trespass - opening the cars and hoods.
Theft when they drove away.
Page 16 of 20
Criminal Law Class Notes Sunday, December 18, 2011
July 8, 2002
Chapter 10 Attempt
How do we punish the person that shoots and misses?
What is the harm if person misses? Mental anguish to the victim, injury to innocent victim.
Three problems:
1) Mens Rea - fired accidentally but recklessly; bomber wanted to simply scare, not kill.
2) What if the crime is stopped before the act causes harm?
3) Transferred Intent - impossibility problem - what if no one is hurt, or could have been hurt?
Most jurisdictions find a person liable for attempt, but the penalty is lessened, in CA, it is half
the full sentence.
Reckless murder is Second degree murder; Lyerla dissent says that reckless conduct (disregard
the result) justifies a conviction of second degree attempt.
Castro: In some jurisdictions you cannot cause a result without attempting to cause that
result, but you may liable for the circumstances of reckless creation of the result.
Six Tests of Attempt
1) Last Step test - Did the defendant complete all steps up prior completion of the crime.
2) The indispensable element test- a variation of the proximity tests which emphasizes any
indispensable aspect of the criminal endeavor over which the actor has not yet acquired
control.
3) But for interruption test - the crime would have been complete but-for the interruption.
4) Abnormal step test - crossing some boundary that a law-abiding person would not cross. Legal
steps can be illegal if done for criminal purposes.
5) The res ipsa loquitur or unequivocality test-- an attempt is committed when the actor's conduct
manifests an intent to commit a crime. The intent is unequivocality.
6) MPC - substantial step test - action strongly collaborative of criminal intent; looking for,
getting materials, see MPC 5.01.
Murray
1) Last Step test - ceremony had not started yet, so had not reached the last step.
2) The indispensable element test - needed the magistrate and niece & witness. Where these
present?
3) But for interruption test - niece might have said no, magistrate might have said no.
4) Abnormal step test - still had time to change his mind.
5) Unequivocal test - statements were unequivocal, but were his acts? He took her to the church.
6) Substantial step test - talked to the niece, called for the magistrate.
Hypo#1
1) Defendant1 tells others of his animosity toward the victim.
2) Defendant records decision to burn victim’s house in his diary
3) Defendant buys gloves, gasoline and matches.
4) Defendant cases the victim’s house.
5) Defendant returns to the house, wearing the gloves, carrying the gasoline and matches.
6) Defendant enters victim’s home.
7) Defendant shuts off the sprinkler system.
Page 17 of 20
Criminal Law Class Notes Sunday, December 18, 2011
8) Defendant spreads gasoline.
9) Defendant throws lighted match.
At what step does he have attempt liability.
1) Last Step test - #8
2) The indispensable element test - #6 entry into the home.
3) But for interruption test - #6 but-for entry into the home.
4) Abnormal step test - #6 normal person would not cross the line by entering the home [wearing
the gloves, carrying the gasoline and matches]. This is fact question.
5) Unequivocal test - #6 broke into the house, (unless B-B-Q)
6) Substantial step test - #4 as per MPC 5.01
Why punish Attempt less: less harm, make sure that we are not punishing bad thoughts or legal
actions; give the person the chance to stop before acting.
July 10, 2002
Chapter 10 Attempt & Solicitation, Defenses.
Chapter 12 Conspiracy
July 15, 2002
Minority Report - Brown ball, Pre-med. Murder
At C/L only adultery, now includes other provocation, any honest and extreme emotional
disturbance, the death of your child.
Desired death caused accidentally, not pre-meditated, since there is no concurrence of mens rea
and actus reus.
Final Exam: Two essay plus multiple choice, 6 to 10 minutes each, like minority report. All
weighted equally, 1/3 of grade. 1L GGU curve applies.
Inchoate Crimes
Solicitation - enticing … encouraging somewhat to commit a felony.
No defenses at C/L, complete at the time of solicitation, merges into the completed crime.
Specific Intent crime - the person solicited do the crime.
Attempt - specific intent to bring about the criminal result and substantial step toward the
criminal result, an overt act. Applies to both Specific and general intent crimes.
The act must be between mere preparation and the last step.
Assault is a specific intent crime.
Battery - general intent crime. Attempt of battery is a specific intent crime.
Abandonment of Attempt at C/L was no defense once the attempt was complete.
MPC has bail-out, a voluntary and complete abandonment - renunciation.
Do not have to thwart it for renunciation.
Legal and Factual impossibility not covered here, but are a defense to attempt.
Page 18 of 20
Criminal Law Class Notes Sunday, December 18, 2011
Conspiracy - two or more guilty minds, even with police as a party. Specific intent required to
commit an unlawful act or a lawful by unlawful means. The agreement is the mens rea. M/L of
conspiracy with police as one party of two is not modern opinion.
TEST QUESTION - Explicit or Tacit arrangement (Implied) agreement is just as liable, taking
a gun into a store. Defense of duress may apply. Traditionally - no overt act was needed, at M/L
an overt act is usually necessary to show there is an agreement. This is a fact question - it must
be in furtherance of the agreement. Conspiracy does not merge.
Pinkerton Rule - Co-conspirators have liable to act by other Co-conspirators - all the
foreseeable crimes in furtherance of the conspiracy, car theft (stealing a get-away car).
Scope of the agreement - liability for other conspiracies in furtherance of the goal. You don’t
need to know the other conspirators. Example, Drug sales with a distributor - he gets it from
someone else, so chain conspiracy applies. Drug sellers can be charged with drug trafficking,
even if they are not involved at the upper levels.
You know those other people are out there and you have a community purpose.
Wharton’s Rule - where a crime can only be performed by two people and no more, then a
conspiracy does not exist (bigamy, incest, adultery, dueling, bribery, sodomy).
A C/L you cannot withdraw from a conspiracy, but is a valid affirmative defense at M/L if you
give timely notice to the other co-conspirators and act inconsistently with the goal of the
conspiracy and try to thwart the conspiracy. At M/L, if you withdraw properly then you are not
liable for any crimes that come after that.
Chapter 8
DEFENSIVE FORCE, NECESSITY AND DURESS
Justification - the defendant’s act was justified because the defendant’s act was okay to society.
Excuse - the defendant’s act was not okay, but punishment is not right.
Deadly force is force that threatens serious bodily injury OR can cause death.
Non-deadly force - any force that is not deadly force.
Self-defense - an act to protect a victim where the victim reasonably believes an aggressor will
use imminent unlawful touching or harm will occur and the victim uses reasonable force to
that of the aggressor. Self-defense is lost as a defense where the response is not in reasonable
force, e.g., the victim brings in deadly force where the aggressor used only non-deadly force.
You don’t have to be right, just reasonably believe.
Defense of Others - in some jurisdictions, you stand in the shoes of the victim, and have no right
of defense of others to intervene for the aggressor.
Defense of Property - non-deadly force only, where the aggressor’s act is still in commission of
the crime, including immediate pursuit. Force thereafter cannot be used. Deadly force in
defense of property may only be used where there is also a threat of death or serious bodily
injury.
Aggressor - person that starts an act with more than mere words; e.g., aggressive words, “I’m
going to kill you” is said in anger and the danger appears so.
Withdraw and an act of withdraw must be communicated to establish that the end of the person
is ending their aggression.
Page 19 of 20
Criminal Law Class Notes Sunday, December 18, 2011
Retreat is not a duty (an obligation) except in M/L, some jurisdictions, if you can retreat in
complete safety. The Castle Rule exists everywhere.
Police can only use non-deadly force in except where criminal is a dangerous fleeing person.
Police don’t have to be right but must have a Reasonably belief that the of use deadly force is
required to make a lawful arrest or prevent an escape, or someone’s life is in danger.
Citizens trying to make an arrest or prevent an escape must have Reasonable Belief and be Right
that the danger is present.
At M/L, an unlawful arrest may be resisted, but a lawful arrest may not. In CA, resist of an
unlawful arrest is not a defense; and resist of a lawful arrest is a defense only when the
arrestee does not know the person making the arrest is a police officer.
Necessity is a justification defense where the force was a force of nature (non-human force) and
you are acting to avoid a greater harm (breaking into a home to avoid injury). Starvation is
never a defense to murder for Cannibalism. You cannot create the necessity.
Duress is a justification defense where the force was a force of a person threatening serious
bodily harm or death, except for murder. You cannot create the Duress.
Entrapment - law enforce can provide the opportunity and the means, but also suggested the
crime and the person was not predisposed to do the crime, and a reasonable person would not
be lured into the crime.
July 17, 2002
Minority Report
Brown ball - pre-meditated murder
Red ball - heat of passion killing
Discuss the killing by Tom Cruises’ character. Was it Pre-meditated or heat of passion, and why
for each?
Insanity
M’Naghten - (Majority Rule) due to the person’s mental defect (laboring) that the defendant
did not know the nature and quality of the act, of if he did know, he didn’t know that it was
wrong.
Irresistible Impulse - M’Naghten Plus - due to the person’s mental defect (laboring) that the
defendant did not know the nature and quality of the act, of if he did know, he didn’t know that it
was wrong and the defendant could not control his behavior.
Durham - the act was a product of the defendant mental deficiency, broader than M’Naghten;
but-for being mentally ill, the defendant would not have performed the crime.
MPC - The defendant did not have the Substantial Capacity to appreciate what he did and
could not conform to society.
Diminished Capacity - the defendant’s ability to reason, goes only to the element of mens rea
of the crime - to knock out the mens rea requirement, could mitigate murder to manslaughter. No
longer valid in California because of the Twinkie defense of Dan White (killed Harvey Milk and
George Moscone). John Hinckley defense - shot Reagan and Jim Brady. The defendant (Dan
White) is then acquitted because mens rea is not fulfilled.
Texas - Yates case - guilty but no insane. Texas standard is more difficult.
Review
Enumerated Felonies for Felony Murder Rule: Proxy for Malice: BARRKM - Burglary,
Arson, Rape, Robbery, Kidnapping, Mayhem
Punishments: Deterrence, Rehabilitation, Incarceration
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