2004 mid term analysis by HC120913014416



TO:                   Criminal Law Students

FROM:                 Professor Sloss

RE:                   Fall 2004 Mid-Term Exam

       I scored the mid-term exam on a fifty-point scale. There were three main parts to
the answer.
     Analysis of the larceny and burglary issues was worth 12 points. The average
       score was 8.4 points. The best score was 11 points.
     Analysis of the homicide issues was worth 18 points. The average score was 9.2
       points. The best score was 13 points.
     Analysis of the policy question was worth 20 points. The average score was 11.7
       points. The best score was 17 points.

       This memorandum presents a comparison of an “A” exam and a “C” exam. For
each main portion of the exam, the memo includes a different student answer, except that
I used my own answer for the homicide analysis. For the larceny/burglary issue, the “C”
exam scored 7 out of 12 points; the “A” exam scored 11 out of 12 points. For the
homicide issue, the “C” exam scored 7 out of 18 points. (My answer scored 18 out of
18.) For the policy question, the “C” exam scored 8 out of 20 points; the “A” exam
scored 17 out of 20 points.

       Note – My comments are in italics.

Larceny/Burglary – “C” Answer

        Burglary is 1) breaking and 2) entering the 3) dwelling of another 4) at night with
the 5) intent to commit a felony therein. Here Albion used a crow bar to break a pane of
glass on the door. He then unlocked the door and entered the house. The dwelling did
not belong to him. Since it was winter, it was dark by the time they broke into the house.
Once inside the house Albion intended to commit grand larceny.

        Larceny is the trespassory taking and asportation of the personal property of
another. To have felonious intent to commit grand larceny, Albion must have intended to
permanently deprive the owner of the property (intend to take it and keep it) and not just
convert the property to his own use. People v. Brown. It is likely that Albion intended to
deprive the owner of the property permanently. Albion observed the house for some
time, identified it as a target, and wanted to collect all of the "valuables" in the house
during the time the resident was gone. If Albion went to all of that trouble to have the
opportunity to get the "valuables" he probably intended to keep them. It is unlikely that
Albion intended to take the property but not keep it permanently because both common
sense and his outward actions indicate the goal of taking the property (in duffel bags) to

keep permanently. Albion may argue that he did not commit larceny because he did not
actually take anything (assuming the duffel bags were empty when they were running
from the police). However, burglary only requires intent to commit a felony (in this case
larceny). It does not require that Albion actually succeed in committing the felony.

         In order to prosecute Albion there must be an actus reus, mens rea, and causation.
The actus reus is the physical component of the crime or the actual physical act. Here,
Albion's act of breaking the window to the door, unlocking the house, entering and
intending to commit larceny therein is the actus reus. Actus reus must be a voluntary act.
The fact that they broke the glass and unlocked the door indicates that they voluntarily
did so. It would be a stretch to say that these acts were committed involuntarily. Thus,
the actus reus is satisfied. The mens rea (guilty mind), is the state of mind the person has
when committing the crime. The person must commit the crime intentionally, knowingly
or recklessly. It is clear that Albion intended to commit the burglary. He identified the
home as a target for theft, observed the home for a few weeks, and decided on time and
date to break into the house to steal the valuables. Clearly, Albion had the requisite mens
rea to commit the burglary. Causation is also a necessary element to attach criminal
liability. There must be a cause-in-fact and proximate causes to convict Albion. The
cause-in-fact is usually proved with the "but for" test. But for Albion's actions, the crime
(burglary) would not have occurred. But for Albion's breaking into the home, the crime
would not have occurred. Proximate cause is used to determine who should be liable for
the cause in fact. This means that the person who is responsible for the "but for"
causation, is actually responsible, and not a third party or an intervening event. Albion is
also the proximate cause of the act. He is the one who broke the glass to the door in
order to get in the house. There was no intervening event or other party who committed
these acts.

Comment: The main weakness of this answer is that the student did not analyze the
elements of larceny.

Larceny/Burglary – “A” Answer

        Burglary is defined as 1) breaking and 2) entering 3) the dwelling of another 4) at
night 5) with intent to commit a felony therein. People v. Brown. The breaking and
entering was accomplished when Albion used a crowbar to break a pane of glass on the
door, which reached through the hole to unlock the door, and entered the house. The
state can show the dwelling was that of another by obtaining the true owner's title to the
home, and establishing that it was neither Albion nor Riley. "At night" is an element that
has been relaxed in some jurisdictions, can easily shown from the facts of the case, which
show that they entered around 6:00 pm and that it got dark at about 6:00 pm as well.
These four elements should be fairly simple to prove. Lastly, the State must prove he had
the intent to commit a felony. In this case it was larceny, which will be expanded on

       Larceny is defined as the 1) trespassory 2) taking 3) asportation 4) of personal
property 5) of another [the actus reus elements] 6) with the intent 7) to deprive him of it

permanently [the mens rea elements]. Both the actus reus and mens rea must be proven
for each element of larceny. They are analyzed now.

        A trespass occurs when a person takes unlawful possession of another's personal
property, without his consent. Topolewski v. State. There was obviously no consent in
this case because, not only was the owner of the house not home, he most likely did not
even know them.

        There is a difficulty in the taking element in that "possession" must be taken, and
not mere "custody". Possession requires that the State show that defendant had sufficient
control over an item to use it in a reasonably unrestricted manner. Custody, on the other
hand, is physical control over the item, but only temporary and restricted use of it.
Albion and Riley would have had unrestricted use of the property if they had been able to
walk away from the house that night. They assumed actual possession by putting the
property in their duffel bags, as opposed to the constructive possession that the owner of
the house maintained during the attempted larceny. This actual possession was taken
unlawfully because the owner did not consent to the taking. His omission (by not being
there) does not constitute consent.

        The asportation element is equivalent to the act of carrying it away. Carrying
away can be satisfied if the slightest movement of the carrying away is demonstrated.
People v. Olivo. If one assumes that "Both Riley nor Albion were carrying duffel bags
filled with loot" means that both men were carrying the bags with loot out of the house,
the asportation element is fulfilled.

        It is easy to prove that the felons took personal property of another. Personal
property has an element of mobility to it, which excludes land, but the property taken
here is mobile and in possession of the person who owns the house. The property taken
was in the constructive possession of the owner of the house, and he does not lose
possession of it simply because he leaves his domicile.

        The intent required for larceny is specific intent; namely, the intent to deprive the
person of their property permanently. In the California Supreme Court case of People v.
Brown, the court stressed the permanent aspect of the deprivation that occurs. In that
case, a child was not convicted because he expressed his explicit intent to return the bike
he had taken.

        In the case at hand, there is strong evidence to show intent to permanently
deprive. The defendants had "cased the joint" for two weeks, determined the subject's
habits, and familiarized themselves with the neighborhood. This allowed them to find the
best opportunity to enter the house and take his valuables. In addition, they "began
collecting valuable items in two duffel bags they brought for that purpose," showing the
intent to load the items up and walk out with them. They obviously intended to deprive
the owner of it permanently because they had no intention to give the items back, but to
either use them or sell them. Another California Supreme Court case can be used to
lighten the burden of proof on the prosecution. People v. Davis held the "substantial risk

of permanent loss" can be a substitute for actual permanent loss. Even it if is
substantially certain that Albion and Riley would not return the property to the owner of
the house after they had walked out of the house that night, the prosecution satisfied

        These elements give the State a strong case for a charge of larceny, which would
establish the felony of burglary, an enumerated felony in the California Penal Code's
felony-murder rule.

Comment: This is an excellent answer. The only reason this student failed to score a
perfect 12 out of 12 is that he/she applied the common law of burglary, instead of
applying the California burglary statute. The California statute is reprinted in your
casebook on page 306, in the case of People v. Fuller.

Homicide – “C” Answer

         Under the California Penal Code §187 murder is "the unlawful killing of a human
being…with malice aforethought." §189 of the code defines first-degree felony murder
as murder committed "in the perpetration of, or attempt to perpetrate" several enumerated
felonies, including burglary. The California Court of Appeal in the case People v. Fuller
states that the California felony murder statute is meant to impose strict liability for
deaths that occur during the commission of certain felonies regardless if the death occurs
intentionally, negligently, or accidentally.

        In the Fuller case, the defendants were attempting to escape the police in their car
when they crashed into another vehicle causing the death of the other driver. The
appellate court held that the defendants were guilty of first-degree felony murder,
because the death occurred while the defendants were attempting to escape after
committing a felony enumerated under California Penal Code §189. In the present case,
the defendant was fleeing the scene after perpetrating a burglary when his accomplice
was shot and killed by a police officer. Following the court's finding in Fuller, the
defendant in this case is liable for felony murder even though the death occurred after the
perpetration of the crime when the defendant was attempting to escape arrest. The
attendant circumstance requirement is met.

        The actus reus and mens rea elements of felony murder are both met through the
defendant's perpetrating a burglary. Malice is concluded by the moral culpability
displayed in the commission of the burglary – constructive malice. Further, the
defendant's voluntary act in committing a burglary that resulted in death meets the actus
reus requirement for felony murder.

        Finally, the element of causation is met because the defendant was the "proximate
cause" of the accomplice's death. Under the "proximate causation" approach, "a felon
may be held responsible under the felony-murder rule for a killing committed by a non-
felon if the felon set in motion the acts which resulted in the victim's death." By plotting
and executing a burglary with Joseph Riley, the defendant set in motion the acts which

ultimately resulted in the death of Riley, thus making the defendant the proximate cause
of his accomplice's death.

Comment: The main problem with this answer is that it is much too “thin.” There is a
lot more that could and should have been said. Compare this to my answer, immediately

Homicide – My Answer

        The maximum permissible charge against Albion is first-degree felony murder.
To sustain a charge of felony murder, the prosecution must prove two things: first, that
defendant’s conduct satisfied the actus reus and mens rea requirements for the underlying
felony (in this case, burglary); and second, that by committing the underlying felony,
Albion caused Riley’s death. It is not necessary to prove that Albion had the mens rea for
homicide. The preceding discussion demonstrated that Albion’s conduct satisfied the
actus reus and mens rea requirements for burglary. Therefore, the only remaining
question is whether Albion caused Riley’s death by engaging in the actus reus of

        Causation has two components: actual cause and proximate cause. (Under the
traditional felony murder doctrine, the prosecution would merely have to prove actual
cause, not proximate cause. However, according to the exam instructions, California
requires the prosecution to prove both actual and proximate cause.) There is no question
that Albion’s act of burglary was an actual cause of Riley’s death. But for the burglary,
Officer Barkley would not have killed Riley. Therefore, the element of actual cause is

Comment: Several students were confused about this because they thought that there
could be only one actual cause. That is incorrect. In almost any homicide case, there
are many “but for” causes.

        Analysis of proximate cause requires consideration of the intervening acts that
occurred between the time the burglars entered the home and the time Officer Barkley
shot Riley. For each step in the process, it is necessary to consider whether a particular
intervening act broke the chain of causation. The general rule is that a coincidence will
break the chain unless it was foreseeable, but a response will break the chain only if it is
abnormal and unforeseeable. Kibbe v. Henderson.

        The police arrived three minutes after Riley and Albion entered the house.
Arrival of the police was a response to the burglary, which was neither abnormal nor
unforeseeable. It did not break the causal chain. When the police arrived, Riley and
Albion attempted to escape out the back door. Their attempted escape was a response to
the police, which was neither abnormal nor unforeseeable. It did not break the chain.
When Officer Barkley saw that the burglars were trying to escape, he told them to freeze.
As above, this was a normal, foreseeable response that did not break the chain of
causation. Riley responded to Officer Barkley’s command by trying to climb the fence.

The defense can plausibly argue that Riley’s response breaks the causal chain because it
was both abnormal and unforeseeable. When Riley refused to halt, Officer Barkley shot
and killed Riley. The act of shooting him was normal and foreseeable. The defense can
plausibly argue, though, that Riley’s death was both abnormal and unforeseeable.
Although the defense can make plausible arguments, there is sufficient evidence to
present the issue of proximate cause to a jury. Therefore, it is permissible under
California law to charge Albion with first-degree felony murder. (The murder is first-
degree because burglary is an enumerated felony under the statute.)

       Aside from the issues identified above, there are three distinct arguments that the
defense could invoke to limit application of the felony murder rule. First, the defense
could argue that the felony murder rule should not apply because burglary is not an
inherently dangerous felony. Second, the defense could argue that the rule should not
apply because Riley was not killed until after the burglary was completed. Third, the
defense could argue that the felony murder rule should not apply because the burglary
merged with the homicide.

       The defense will lose all three of these arguments. First, the prosecution is not
required to prove that burglary is inherently dangerous because burglary is an enumerated
felony under section 189 of the California Penal Code. Second, under the “res gestae”
doctrine, the felony murder rule applies if the killing occurs while the felons are
attempting to escape from the scene of the crime. That is precisely what happened in this
case. Third, the merger doctrine adopted in People v. Ireland does not apply to felonies
committed for an independent felonious purpose. See People v. Smith. Here, Albion and
Riley had an independent purpose of stealing valuable goods, so the merger limitation is

Policy Analysis – “C” Answer

        Under these facts, the possible charge of first-degree murder is inappropriate.
First, charging Albion with first-degree murder does not make sense because the purpose
of this crime is to serve society's need for order and peace, or to prevent the negligent
killing of people during felonies. The justification of felony murder is not to deter the
underlying felony of burglary, but to deter the killing of people in the commission of such
felonies. This justification works with the utilitarian idea of general deterrence, where
the object is to deter society as a whole from committing crimes. While this idea is
noble, charging Michael Albion with first-degree murder will not work to deter society as
a whole from committing burglary and other felonies. Charging Michael Albion with
first-degree felony murder may achieve the utilitarian idea of specific deterrence, that of
deterring the individual in this case from committing crimes, but this is not enough of a
justification in relation to society as a whole to give good reason for charging him with
this harsh of a crime. Though charging and possibly convicting Albion of first-degree
murder would incapacitate him by placing him in jail, and would likely intimidate him
from committing any further crimes upon leaving jail, it does not support the idea of
deterring murder because Albion did not directly commit the murder and thus would not
need deterrence from repeating such a crime. From a retributivist standpoint, society has

a duty to punish guilty people, and in this case Albion should be punished for the crime
of burglary, not the crime of murder. Further, if one takes the point of view that Officer
Barkley was acting lawfully, there is not a guilty party to punish in this case, and
charging Albion with anything relating to the death of Riley seems wrong from a
retributivist standpoint.

        The facts of this case do point to the appropriateness of charging Michael Albion
with the crime of burglary. It is appropriate to charge him with this crime because it
serves society's need to be free from the breaking and entering of their homes, as well as
the protection of their property and the prevention of such crimes. As Albion has met the
elements of the crime, he should be punished, as it is keeping with the goals of society in
preventing burglary in society and on the part of this specific individual. In terms of
specific deterrence, putting Albion in jail will work to deter him by incapacitating
Albion, as well as hopefully working to intimidate him from further crime upon release.
Society will benefit from the criminalization of his conduct and his punishment. From a
positive retributivist point of view, society has a duty to punish guilty people like
Michael Albion. As he is guilty of burglary, Albion deserves to be punished, as he was
harming the order of society by committing this crime.

       As per the charge of larceny, the facts of this case demonstrate that it is
appropriate to charge Michael Albion with this crime. The utilitarian point of view
would hold that society has a need for order and protection of property rights, and to
criminalize larceny by punishing people like Michael Albion would work to serve this
need. Also, punishing Albion would work to specifically deter him from further larceny
by incapacitating him from crime by either fining or incarcerating him, as well as
intimidating him upon release. In this case, Albion has met the elements of the crime,
and punishing him would be consistent with the goals of society. From a retributivist
standpoint, he is guilty and should be punished for his offense.

Comment: There is nothing particularly wrong with the “C” answer, except that the
student confuses incapacitation with specific deterrence. The bigger problem, though, is
that the student fails to make a persuasive argument in support of his/her opinion that
Albion should not be charged with felony murder. When you are asked a policy question
on an exam, you should try to write an answer that will persuade someone who disagrees
with you to reconsider his/her opinion. The “A” answer, reproduced below, is much
more persuasive.

Policy Analysis – “A” Answer

        From a policy standpoint, I feel that the burglary charge alone is appropriate.
Albion's conduct satisfied all of the elements of a burglary charge, and the intent of the
statute was to hold a person culpable for such behavior. In this case, I do not think that a
felony murder charge would satisfy any common law justifications for the felony murder

         In People v. Smith, the court stated that the purpose of the felony murder rule is to
deter negligent and accidental killings that may occur during the commission of a felony,
rather than deterring the underlying felony itself. The court specifically states that, in that
case, the felony murder rule would not deter the defendant from killing accidentally or
negligently. Charging Albion with felony murder would not serve the purpose of
deterring him from negligently or accidentally killing someone in the course of a felony
because he did not even kill anyone in this case. He did not have a weapon with him
when he attempted to flee, so he arguably did not have any intent to fight his captors,
where he may have accidentally killed one. The Wilson and Smith courts refer to
fulfilling the "purpose" of the felony murder doctrine, but charging Albion with felony
murder would not serve any purpose that the courts intended.

        If convicted of felony murder under California law, Albion will, at the very least,
be sentenced to imprisonment of 25 year to life. At most, he will receive the death
penalty. Neither of these punishments is justifiable or proportionate according to a
retributive theory, although they could be justified by a stretch of the utilitarian theory.
Throughout this analysis, I use burglary as the crime in question only because Albion did
not actually kill Riley, but rather set into motion the events that led to a third party killing

        Retributive theorists generally feel that a criminal should be punished for a crime
simply because he committed it, and therefore is morally culpable and deserving of
punishment. Because Albion did not actually kill Riley, however, the retributive theory
does not coincide with a felony murder charge in Albion's case. According to negative
retributive theory, society cannot punish the innocent. Punishing Albion for killing a
man when he did not actually kill him would not coincide with this theory. Positive
retributive theory states that society has a duty to punish the guilty. Under this theory,
Albion certainly should be punished for the burglary; however, he is not guilty of actually
killing someone, so he should not be punished for murder any more than he should be
punished for rape, assault, or carjacking in this case.

         Utilitarians claim that justification for punishment lies in the useful purpose it
serves. One of the utilitarian justifications for punishment is that it deters others from
committing the same. crime. Would-be burglars may not be deterred by Albion's
punishment because it is so disproportionate that they may consider it an aberration.
However, if they thought they could possibly end up on death row for committing a
burglary, then they may think twice before committing a burglary. An unfortunate
consequence could be that Albion's punishment encourages burglars to be more
aggressive or violent because they may get a maximum sentence anyway. Albion's
punishment is not likely to deter would-be murders because Albion did not actually kill
anyone, so the would-be felons would not see Albion's punishment as one for killing
someone, but rather for attempting to burglarize. A more useful purpose may be served
by focusing on the fact that the police officer killed an unarmed man while he was trying
to flee from a nonviolent crime. Other police officers may be deterred from being too

        Utilitarians also claim that the punishment deters the defendant from committing
the crime again. In Albion's case, if he does not die via capital punishment, spending at
least 25 years in prison could very well deter him from committing another burglary.
Because Albion technically did not murder anyone to begin with, there would be no
deterrence value as far as keeping him from murdering "again." Again, implicating the
police officer may serve the deterring purpose of keeping the police officer from making
such a grave mistake again.

        The incapacitation justification would be most relevant in this case. At the very
least, Albion will not be able to break into any houses nor cause any deaths in the general
public for 25 years. If he receives the death penalty, he never will be able to commit such
crimes again. However, implicating the police officer may result in him losing his job or
worse, which would keep him from killing unarmed men again.

         A final utilitarian justification is reform. If Albion receives the death penalty, he
will not have any opportunity to be reformed or, if this time on death row does reform
him, society will receive no benefit from that reform when he is put to death. If he is not
sentenced to death, prison may reform Albion so that he does not have any desire to lead
a life of crime when he is released. Assuming Albion has no prior convictions for violent
offences, he does not need to be reformed for any violent tendencies because he does not
appear to have any now. Albion purposely waited until the homeowner was away from
the house before breaking into it, indicating that Albion did not have any desire to hurt
anyone during the burglary. Albion did not take a weapon when he attempted to flee, and
did not resist arrest when apprehended. There is no evidence that Albion has any violent

        The Eighth Amendment to the Constitution prohibits inflicting cruel and unusual
punishment. In Weens v. United States, the Supreme Court said that the term "cruel and
unusual" included punishments "which by their excessive length or severity are greatly
disproportionate to the offense charged." Any punishment ranging from 25 years in
prison to the death penalty would be grossly disproportionate to the crime for which
Albion actually was culpable. Coker v. Georgia established that the death penalty for
rape violated the Eighth Amendment, so it is a natural inference that the death penalty for
burglary (or, at most, for instigating a burglary during which a third party killed
someone), also violates the Eighth Amendment.

        In Solem v. Helm, the court suggested three factors to use in determining whether
a punishment is so disproportionate to the crime that it can be considered cruel and
unusual: the gravity of the offense and the harshness of the penalty; sentences imposed
on other criminals in the same jurisdiction; and sentences imposed for the same crime in
other jurisdictions. In Albion's case, burglary is a serious offense, but hardly grave
enough to justify the death penalty or even an extremely lengthy prison term. A review
of the statutory sentences imposed for other crimes in California shows that the
punishments for other crimes are more proportionate to the harm involved in those
crimes. However, sentences for other criminals convicted of felony murder in California
are likely to be similar to Albion's. If California subscribed to the agency approach to
felony murder, Albion would not even be held responsible for a non-felon third party

killing someone during the commission of a felony. Therefore, criminals in other
jurisdictions (namely, jurisdictions that apply the agency approach) that committed the
same acts that Albion did are likely to have significantly less severe punishments because
they are charged only with burglary – not felony murder. Albion's case does not appear
to pass the Solem test for proportionality of punishment.

        Despite the concerns noted throughout this memorandum, proponents of the
felony murder rule offer several defenses to the doctrine. Supporters of the doctrine say
that criminals convicted under the felony murder rule are receiving their just desert – in
other words, the criminal was doing something bad to begin with, so he is being punished
for it. Considering that Albion did not actually kill anyone and did not even attempt to
physically harm anyone, it is hardly fair to say that he is getting what he deserves in a
possible death sentence. In fact, it can be argued that Albion was the least culpable
person at the scene. He did not attempt to flee once the police told him to stop – Riley
chose to try to get away. Also, as mentioned above, the police officer was the one who
chose to shoot an unarmed man.

        Proponents claim that felony murder provides condemnation for the criminal's
acts. In Albion's case, a burglary conviction would provide the condemnation
appropriate to his crime. The deterrence justification does not apply for the reasons
stated earlier in this memorandum. The fact that the felony murder rule provides clear
and unambiguous definitions of offences does not apply in Albion's case. The fact that
felony murder is defined clearly in the statute does not justify its application here.
Because Albion lacked, at minimum, the mens rea for any other homicide charge, I could
not charge him with any other type of murder or manslaughter. Also, a police officer
shooting an unarmed man may be an intervening factor that is so unforeseen that it breaks
the causal chain; therefore, without the felony murder rule, Albion almost certainly would
not be considered the proximate cause of Riley's death. The distinction between the
levels of homicide is not relevant here, so the felony murder rule does not serve any
purpose by providing a clear and unambiguous definition. Judicial efficiency would not
be a benefit of the felony murder rule in Albion's case for the same reason – I could not
charge him with any other type of homicide, so it is not easing my burden as a
prosecutor. Finally, proponents of felony murder claim that the doctrine minimizes
perjury. Albion would have no reason to perjure himself in this situation without the
felony murder rule because he did not actually kill Riley; therefore, he would not have
anything to lie about. If anything, the felony murder charge may encourage perjury in
this case because if Albion can prove that he did not set into motion the series of events
that led to Riley's murder, then he will not be convicted of his murder. This provides a
heavy incentive for Albion to lie about his involvement in the planning and execution of
the burglary (for example, he may claim that Riley planned the burglary and forced him
to participate in it).

         Albion's situation is a consequence of the felony murder rule in which there was
no murder originally, but the rule created an opportunity for a murder charge. In this
case, it is the combination of the felony murder rule and the proximate cause approach to
it that results in what I consider an unjustifiable charge. One of the purposes of

separating homicides into categories is to distinguish those most culpable from those less
culpable. Charging Albion with first degree murder would be charging someone who, in
terms of homicide, arguably is hardly culpable at all, for a crime that is reserved for the
most culpable offenders.

Comment: This is a very good answer. My main criticism is that it is too long. This
student lost points on other portions of the exam because he/she devoted the bulk of
his/her analysis to the policy issue, and did not devote sufficient attention to the other


To top