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Crim Law Outline- Strader

← COMMON LAW CRIMES


← Burglary
• Definition: trespassory breaking and entering the dwelling of another at night with the intent
to commit a felony or larceny within (common law)
o Trespassory braking into [structures] w/the intent to commit grand or petit larceny, or
any felony (CA)
o Most states have dropped night time and expanded dwelling to include many kids of
structures. Some states, like NY have dropped breaking.
• Trespassory
o Unlawful, without right, license or privilege
o Or beyond the scope of authority in time and place(maid who comes later to steal)
o Store exception – just need intent to commit grand or petit larceny, or any felony;
since entry is open to public, infer trespassory element if they have intent
• Breaking/Entering
o Actual Breaking
 Needs some movement of structural impediment (goes though open window
not breaking)
 Full body enters
 Portion of body enters
 Entry through instrumentality – instrument has to be used to commit target
offense
o Constructive Breaking
 Where entry is gained by fraud, misrepresentation of identity, or intimidation
• Intent to commit crime within
o Specific intent crime
 Where a crime requires “specific intent” or “special intent”, this means that D,
in addition to desiring to bring about the actus reus, must have desired to do
something further.
 Ex: D not only intended to break and enter the swelling of another,
but he also intended to commit a felony once inside the dwelling, a
specific intent, an intent other than theone associated with the actus
reus (the breaking and entering)
o Desire to cause the consequences of the crime
o Intent has to be formed in actor’s mind before or at the same time as breaking/entry
o Double mens rea – intent to commit felony and intent of the felony
← Larceny
• Definition: trespassory taking and carrying away the possession of another with the intent to
permanently deprive (common law)
o Every person who shall feloniously steal, take, carry, lead or drive away the personal
property of another is guilty of theft (CA).
1. Conduct Crime, not result crime
 Prohibits the conduct of taking and carrying away the personal property of
another
 Offense complete when act occurs
2. Specific Intent Crime
 Intent to permanently deprive
 Or there has to be a substantial risk of loss
• Taking
o The taking sometimes called the “caption” requires the assertion of dominion and
control over the property by a defendant who does not have legal possession.
• Carrying away
o The carrying away (asportation) is complete upon even the slightest movement (6
inches will suffice)
o MPC doesn’t require proving asportation requirement. (MPC §223.2(1) providing that
theft occurs if a person “unlawfully takes” another’s property)
• Property
o Common Law: larceny was limited to tangible personal property
o Modern statutes have expanded the kinds of property to include theft of services and
other intangibles

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o Abandoned property is not subject of larceny, although lost or mislaid property is.
 Lost of mislaid property: in order to be guilty for lost or mislaid property, there
are 2 requirements. The finder:
 1. Must intend to steal it, and
 2. Either know who the owner is or have reason to believe that he or
she can find out the owner’s identity
• Custody v. Possession
o Larceny is a crime against possession when committed by one who has mere
custody
 Employees are said to have custody over their employer’s property; however,
the employee has possession where:
 A third party gives property directly to employee for the benefit of its
employer; or
 Where the employee is in a high level position (e.g. office manager,
bank president, corporate official)
• Continuing Trespass
o Occurs when D takes an item with no intention of keeping it, and then decides later to
permanently deprive by keeping it for himself
 Legal fiction that gets around the fact that intent has to occur at time of taking
 Says that initial trespass continues as long as wrongdoer remains in
possession of the property that is the subject of the prosecution
 If someone takes something without felonious intent at time, and later
decides to take it, (i.e. develops felonious intent), court would see this new
felonious state of mind as concurring w/the trespassory taking occurring at
that instant.
Robbery
• Definition
o Common law felony consisting of all the elements of larceny, plus two additional
elements:
 1. The taking must be from the person or presence of the victim, and
 2. The taking must be accomplished by force, intimidation, threat or
violence.
• Person or presence requirement.
o The taking must be from the person or the victim in his “presence,” meaning an area
within his control.

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• Threat of Violence
o The threat of violence must place the victim in actual fear at the time of the taking.
 Fear and intimidation based on lies qualify as threats for robbery.
• Larceny, assault and battery are all a lesser-included offence to robbery.
• Aggravated robbery. Armed robbery carries a higher punishment than simple robbery.
• Merger
o Larceny as well as assault and battery merge into robbery
o As a result, a D can’t be guilty of larceny and robbery for the same criminal
transaction.
Homicide: Murder 1 and Murder 2; Voluntary Manslaughter; Involuntary Manslaughter; Felony
Murder 1 & 2; Misdemeanor Manslaughter
• Homicide: killing of a human being by another human being.
• Murder: the killing of a human being by another human being w/malice aforethought
(premeditation).
o Malice is required for any murder conviction.
• Malice may be:
o Express: Intent to Kill
 Purpose to kill, or knowledge that death would almost certainly occur
o Implied:
 Intent to inflict grievous bodily injury: purpose to inflict such injury, or
knowledge that such injury would almost certainly result
 Extreme recklessness: D aware of grave risk and D’s acts showed an
“abandoned & malignant heart”/”depraved heart” [MPC – “extreme
indifference to human life”]; OR
 Killing committed during a felony [common law felony murder rule –
malice automatically assumed].
o Intent to Kill Murder ⇒ Deadly Weapons Rule
 An inference of intent to kill is raised through the intentional use of any
instrument which, judging from its manner of use, is calculated to produce
death or serious bodily injury.

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• Killings w/malice:
o 1st degree murder (common law)
 malice & premeditation and deliberation (malice aforethought)
 malice doesn’t have to be premeditated
 murder accomplished by lying in wait, poison, or torture.
 MPC “unlawful killing of a human being or fetus with malice aforethought”
(only diff is “fetus”)
 Anderson Factors: Premeditation
 (helps courts determine premeditation)
 Cool and calculated reflection on intent to kill
 PME
• 1. Planning activity prior to killing
• 2. Motive to kill
• 3. Exacting manner of killing (preconceived design)
o 2nd degree murder
 all other murder w/malice but w/out premeditation and deliberation
 can be raised to 1st degree if premeditated and deliberated
 can be lowered to voluntary manslaughter if D provoked
 malice can be shown 4 ways:
 1. Intent to kill
 2. Intent to cause serious bodily harm
 3. Wanton and reckless conduct (implied malice)

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 4. Intent to commit an inherently dangerous felony not listed in
murder 1 statute:
• CRAB MRKT: inherently dangerous felonies
• Car jacking
• Robbery
• Arson
• Burglary
• Mayhem
• Rape
• Kidnapping
• Train wrecking
 High probability of death (objective)
 Base antisocial motive
 Subjective appreciation of high probability of death (subjective)
o Voluntary MS
 Def: an intentional killing mitigated by adequate provocation or other
circumstances negating malice aforethought. Commonly called a “heat
of passion” killing.
 Malice-based murder & provocation
 Intentional killing due to extenuating circumstances
 Heat of Passion (Common Law & CA)
 Provocation legally adequate
 No cooling off period
 Causal connection

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 Adequate Provocation: traditional view and CA view
 Traditional: MARIA; only 5 ways to have a legally adequate
provocation. Would a reasonable person in these circumstances be
moved to kill?
• Mutual combat
• Assault
• Injury to a Relative
• Illegal arrest
• Adultery
 CA view: says trad is too limited; Would a reasonable person of D’s
age and gender be moved to kill?
 MPC: extreme emotional disturbance
• When D has an EED and there’s a subj and obj test for EEd
o Subjective: D must be EEDisturbed
o Objective: Is there a reasonable excuse for the
distress
 A causal connection must exist between the provocation and the
killing
 The time period between the heat of passion and the fatal act must
not be long enough that a reasonable person would have cooled off.
 Mere words are not enough, not adequate provocation (Rob
Thomas)
 Other Mitigating Circumstances
 Imperfect Self Defense. Imperfect self defense may so mitigate
where a defendant was either at fault in starting an altercation or
unreasonably, but honestly, believed that harm was imminent or that
deadly force was necessary. Mistaken justification has been applied
to self-defense, defense of others, crime prevention, coercion, and
necessity.
 Diminished Mental Capacity. A minority of state allow diminished
mental capacity short of insanity to reduce murder to manslaughter.
• Killings w/out Malice
o Involuntary MS [MPC equivalents are manslaughter and criminally negligent
homicide]

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 Def: an unintentional killing resulting without malice aforethought
caused either by criminal negligence or during the commission or
attempted commission of an unlawful act.
 Mens rea based: required mens rea – depends on the applicable statute in
the jurisdiction where the case arises; may be any one of the following:
 Criminal Negligence Involuntary M/S
 Requires that the ∆ ’s conduct creates a high degree of risk of death
or serious injury beyond the tort standard of ordinary negligence
 Criminal (or gross) negligence:
• D should have been or was somewhat aware of the risk;
AND
• The risk is a grave one; AND
• There is no justification for the risk.
• D should have known of a substantial and unjustifiable risk
of death or great bodily harm.
• Note: this is the rule in most common law jurisdictions. If
you don’t have a statute specifying another level of mens rea
for involuntary manslaughter, then assume that a gross
negligence standard applies.
 Ordinary Negligence: D should have been aware of the grave risk.
(CNH under the MPC.)
• Misdemeanor manslaughter [note: MPC rejects]
 Ordinary Recklessness: actual awareness of grave risk. (Gets you
manslaughter under the MPC.)
 “Unlawful Act” Involuntary M/S
 Def: unintentional killing occurring during the commission or
attempted commission of a misdemeanor which is malum in se
(wrong in itself, rather than b/c of legislative proscription – including
all felonies) or a felony which is not of the inherently dangerous type
required for felony murder, is classified as involuntary manslaughter
under the so-called misdemeanor manslaughter rule.
 Limitations
 The malum in se (wrong in itself) misdemeanor need not be
independent from the cause of death, unlike in felony murder.
o Depraved ♥ Murder

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 Definition: an unintentional killing resulting from conduct involving a wanton
indifference to human life and a conscious disregard of an unreasonable risk
of death or serious bodily injury, absent any defense negating defendant’s
awareness of the risk.
 Unlike involuntary m/s, depraved ♥ murder involves extremely negligent
conduct (or recklessness) that is of a higher degree than gross or criminal
negligence (which provides the standard for involuntary manslaughter).
• Felony Murder
o Definition: an unintentional killing proximately caused during the commission or
attempted commission of a serious or inherently dangerous felony.
 A person who kills during the commission or attempted commission of a
felony has committed second degree murder. The felon’s accomplices may
also be convicted of second degree murder.
o Some jurisdictions that follow the common law also elevate, by statute, certain
homicides to first-degree murder status if the killing occurred during the perpetration
or attempted perpetration of an enumerated felony (i.e., a felony specified in the first
degree murder statute). (rape, robbery, arson, burglary, and kidnapping).
o The felony-murder doctrine’s ostensible purpose is to deter those engaged in felonies
from killing negligently or accidentally.
o Courts troubled by the spectacle of accidental deaths being treated as murders have
attempted to limit the operation of the felony murder rule w/additional rules. Four
such limiting rules are:
 The inherently dangerous felony limitation
 An “inherently dangerous felony” is an offense carrying “a high
probability” that death will result.
 The “res gestae” requirement (2 parts)
 1. The felony and the homicide must be close in time and distance
• felony murder liability continues until the felon reaches a
place of temporary safety.
 2. There must be a causal connection between the felony and the
homicide.
• Some courts merely require a but-for causal connection
 The Merger doctrine
 The felony has to be independent of the homicide.
 The felony can’t have an intent to kill or an intent to commit great
bodily harm.

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 The Agency rule
 Felony murder does not extend to a killing by one other than the
defendant or those associated w/him in the act of the felony.
o Second Degree Felony Murder Doctrine:
 There is no precise statutory definition. People v. Ford, “a homicide that is a
direct causal result of the commission of a felony inherently dangerous to
human life (other than the 6 enumerated felonies) constitutes at least second
degree murder. In determining whether the felony is inherently dangerous,
“we look to the elements of the felony in the abstract, not the particular ‘facts’
of the case.”
o Limitations:
 Independence: the underlying felony must be independent of the act causing
the death. Therefore, where the underlying felony is murder, manslaughter,
or aggravated assault, the defendant can’t be guilty of felony murder.
 Inherently dangerous felony. The felony must be an inherently dangerous
one, such as burglary, arson, robbery, rape, or kidnapping. (BARRK)
 Foreseeability. The resulting death must be a foreseeable outgrowth of the
defendant’s actions. Note that most courts have generally been very liberal
at applying the foreseeability requirement. Therefore, most deaths are
considered foreseeable for purposes of felony murder.
 Timing. The resulting death must occur during the commission, or
perpetration, of the felony.
 Post-Felony Killings. If a killing occurs while D is fleeing, he may still
be guilty of felony murder. If he has reached a place of temporary
safety, the felony is deemed to have “terminated”, and the D can no
longer be found guilty of felony murder.
 Defenses. Any defense to the underlying felony negates the felony murder.
• If there is a common law felony murder rule, does the felony qualify?
o Is the felony inherently dangerous? (majority – abstract approach; minority – fact
specific approach)
o Does the killing merge into the felony?
o Was the killing w/in the res gestae of the felony?
o Was the killing by a co-felon? (majority- agency rule/killing must be by co-felon;
minority – proximate cause approach/killing must be reasonably foreseeable).
Misdemeanor Manslaughter

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• Def: An unintentional killing occurring during the commission or attempted
commission of a misdemeanor (an unlawful act not amounting to a felony) which is
malum in se (wrong in itself) or a felony which is not of the inherently dangerous type
required for felony murder, is classified as involuntary manslaughter.
o some states apply an “inherently dangerous” restriction, holding that the underlying
misdemeanor must be inherently dangerous to life or safety.
Rape
• Def: Common law, the act of unlawful sexual intercourse by a male person w/a female
person without her consent. Penetration was required, emission was not.
• “the carnal knowledge of a woman, not the perpetrator’s wife, forcibly and against her
will.”
o Married persons exempted at common law
o Threats. Intercourse accomplished by threats may also constitute rape
o Consent. If the victim is incapable of consenting, the intercourse is rape.
 Inability to consent may be caused by the effect of drugs or intoxicating
substances or by unconsciousness
o General Intent Crime
← Statutory Rape
• Def: where a female is under the statutorily prescribed age of consent (usually 16) (18
in CA), an act of intercourse constitutes rape despite her consent. A defendant’s
mistake as to the age of the victim is generally no defense to statutory rape.
o Strict Liability Crime
← Attempts
• Elements of the crime.
o Specific Intent to bring about a criminal result, and
o Significant overt act in furtherance of that intent.
• Merger. Once the target crime is committed, the attempt merges into the target crime.
• Specific Intent Crime. The specific intent for attempt can apply to both specific and general
intent crimes, as well as strict liability crimes.
o Ex: Although rape is a general intent crime, attempt to commit rape is a specific intent
crime.
• Overt act requirement. The overt act required must render the defendant significantly close
enough to actual perpetration that he unequivocally intends to commit the crime.
o Several approaches are used to determine what constitutes a sufficient overt act.
 1. Common Law. At common law, a D was required to have performed the
“last act” necessary to achieve the intended result.

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 2. Modern view. Today, acts prior to the last act are often sufficient, as long
as the act is a substantial step toward commission of the crime.
 3. Preparation. Mere preparation is not enough for attempt.
• Defenses:
o Abandonment
 Common Law standard. Abandonment is no defense to attempt once the
attempt is complete.
 MPC. A voluntary and complete abandonment can operate as an affirmative
defense of renunciation.
o Legal Impossibility. Legal impossibility is traditionally regarded as a defense to
attempt and involves the situation where the defendant did all those things he
intended to do, but these acts did not constitute a crime.

← Solicitation
• Def: Common Law - misdemeanor consisting of enticing, advising, inciting, inducing, urging,
or otherwise encouraging another to commit a felony or breach of the peace
• MPC : defines solicitation broadly to include requesting another to commit any offense (which
would include misdemeanors as well as felonies).
• Timing.
o The offense is complete at the time the solicitation is made.
• Agreement unnecessary.
o It is unnecessary that the person solicited enter into an agreement to commit the
requested crime. Indeed, a person solicited to do a crime may not even respond, but
the solicitor will still be guilty of solicitation.
• No defenses to solicitation at common law.
o Impossibility. Even where it would be impossible for the soliciting person to carry out
the crime, such impossibility is no defense to the crime of solicitation.
o Withdrawal. b/c the crime of solicitation is complete as soon as the solicitation is
made, withdrawal can be no defense. Even where the solicitor later changes her
mind, such will be a defense to the underlying crime, but not to the solicitation crime.
• Merger. The crime of solicitation, unlike conspiracy, merges w/the target felony upon
completion of the latter.
o So does this mean that you don’t charge D w/solicitation? P. 16*
o If person D is trying to solicit says “no,” then D is only guilty of solicitation.
• Specific Intent Crime in that the person soliciting must specifically intend the other party to
commit the crime and not merely show approval.

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← Conspiracy
• Elements: A conspiracy is:
o An unlawful criminal combination
o Between two or more persons
o Who enter into an agreement
o With the specific intent to commit an unlawful act or
o A lawful act by unlawful means
• Agreement. The essence of the conspiracy is the agreement. Feigned agreement is
insufficient. Actual agreement is required.
o Meeting of the Minds. To form a conspiracy, the parties must act together and agree
to accomplish the same crime.
o Express Agreement not Required. An agreement may be evidenced by conduct
where the conspirators demonstrate over time that they intended to achieve the same
objective and agreed to work together toward that end.
• Overt act – traditional view.
o Traditionally, no “overt act” is required for conspiracy. At common law, the
agreement itself constitutes a crime.
• Overt act – modern view.
o In about half of the states, modern statutes require an overt act in furtherance of the
conspiracy.
• Merger. Unlike attempt, conspiracy is a separate and distinct offense that does not merge
upon completion of the target crime, b/c criminal combinations are deemed to be dangerous
apart from the underlying crime itself.
• Scope of the Conspiracy. Each co-conspirator is liable for the crimes of all the other co-
conspirators where the crimes were both:
o A foreseeable outgrowth of the conspiracy and
o Were committed in furtherance of the conspiratorial goal.
• Single or multiple conspiracy. It is the nature of the agreement which determines whether
there is a single or a multiple conspiracy.
o Single. In a “chain” relationship where several crimes are committed under one
large scheme in which each member knows generally of the other parties’
participation and there exists a community of interest, one single conspiracy results.
o Multiple. Alternatively, in the so-called “hub-and-spoke” relationship, where one
common member enters into agreements to commit a series of independent crimes
with different individuals, multiple conspiracies exist.
• Mental state. Conspiracy is a specific intent crime.

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• Termination. Once the target crime has been committed, the conspiracy terminates.
o Note: the timing of termination is very important because statements of co-
conspirators are only admissible if they were made in furtherance of the conspiracy!
Statements made after a conspiracy terminates are not admissible.
• Procedural Issues
o Acquittal of one. At least 2 guilty parties are required for a conspiracy conviction so
an acquittal of one co-conspirator results in the acquittal of a single remaining co-
conspirator.
• Defenses:
o Impossibility is no defense to conspiracy.
o Withdrawal:
 Common Law Rule: withdrawal not recognized as a valid defense to
conspiracy b/c the conspiracy was complete as soon as the parties agreed to
commit the crime. Withdrawal may be a valid defense, however, to crimes
committed in furtherance of the conspiracy.
 Ex: Oscar and Fernando enter into an agreement to rob a bank next
week. The next day, Oscar gets cold feet and withdraws from the
felony. The next week, Fernando (w/out Oscar’s involvement) robs
the bank. During the course of the robbery, Fernando shoots and
kills a bank security guard. Oscar is guilty of conspiracy but not
guilty of robbery or felony-murder.
 MPC: withdrawal by a co-conspirator may be a valid affirmative defense
where the renouncing party gives timely notice of his plans to all members of
the conspiracy and performs an affirmative act to “thwart” the success of the
conspiracy. In this case, note that withdrawal serves as an affirmative
defense to a conspiracy charge.

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INCHOATE CRIMES
Solicitation Conspiracy
1. ∆ entices, advises, encourages, orders or 1. Consists of (a) an agreement between 2 or more
requests another to commit a crime. persons to commit a crime and (b) an intent to
2. The crime solicited need not be committed. achieve the criminal objective.
2. The agreement is the “essence” or “gist” of the
3. The crime requires no agreement or action by the
crime.
person solicited.
3. Unlike attempt, the crime does not require a
4. Defenses: at common law no defenses were
“substantial step” in the commission of the crime.
recognized; MPC, renunciation is an affirmative
4. Defenses: at common law withdrawal was not a
defense.
valid defense; under MPC, withdrawal is recognized
as an affirmative defense if the ∆ “thwarted the
success of the conspiracy.”
5. Solicitation merges into conspiracy; if the
conspiracy is successful, a conspirator may be
subject to conviction for both the conspiracy and the
completed crime.
Attempt
1. Consists of (a) an intent to commit a crime & (b) an act in furtherance or a “substantial step” toward the
commission of the offense.
2. The act in furtherance of the crime must go beyond mere preparation.
3. “Specific-intent” crime, i.e., the defendant must have the specific intent to commit the designated crime.
4. Defenses: at common law legal impossibility but not factual impossibility was a defense to a charge of
attempt; under the modern view, however, impossibility is no defense when the defendant’s actual intent
(not limited by the true facts unknown to him) was to do an act proscribed by law.

← What is an affirmative defense? (affirmative v. what (regular) defense)



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Crim Law – Strader Fall 2006 09/09/2009 04:02:00
California Law
1. Transferred intent – Scott holding
← Transferred Intent
• If you intend to shoot A but end up shooting B, you can be guilty of purposeful killing in any
jurisdiction.
o Has to be same kind of social harm (ie. Accidentally shoot neighbor instead of
coyote)
• In CA if you miss intended victim or kill victim and kill another, can be charged w/purposeful
killing (even though intention was only to kill A, but killed A & B, it’s purposeful killing for both)

2. Specific v. General intent and the intoxication defense – Atkins holding


← People v. Atkins p. 243
← Specific & General intent is not determined by facts of the case, only by the statute.
• Specific Intent: guilty at the very entrance w/o needing to do more (burglary); Larceny: guilty
at the taking and carrying away.
← Issue: is arson a specific intent crime?
• D was intoxicated, says it’s a defense of specific intent
o Judge says arson is a general intent crime b/c harm comes once fire was started
o Court of appeals say it’s a specific intent crime b/c the intent was for a future harm
• Voluntary intox is a defense only to specific intent crimes****
• Specific Intent crimes: burglary, larceny*****
o Actus reus is committed and there’s an intent to commit a harm in the future (spec
intent def) another def on p. 247
← Actus reus- taking + asportation
← Mens Rea- (Know you’re taking prop); intent to permanently deprive victim of property;
trespassery (no right to possess property)
• Has to be property of another
• Trespass (no right to possess it)

3. Burglary:
a. Expands common law definition to cover many types of structures, vehicles, etc.
b. No breaking required
c. Entry does not have to be at night
d. Object crimes include misdemeanor theft

← 4. Robbery: Miller rule on timing of (a) the taking and (b) the use of force
← Miller v. Superior Court p. 653
← Issue: whether requirement of immediate presence is established b/c V confronted D, but V
wasn’t there when wallet was taken
• Court says under strict interp this wouldn’t be a taking b/c V wasn’t there when wallet was
taken
• Court expands common law def to include taking and carrying away
o Getting it w/o force but using force/violence to take it away constitutes (change from
common law)
← Take away from this case:
← Elements of robbery
← Use of force or fear to gain property, force/fear accompanying theft
• & also Threaten violence to someone in immediate vicinity
• force must be used at time of taking, not during taking away (common law def)
← Def must be present (common law)
Court in this case admits that common law def is narrower

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← 5. First degree murder – the premeditation/deliberation formula
 Anderson Factors: Premeditation
 (helps courts determine premeditation)
 Cool and calculated reflection on intent to kill
 PME
• 1. Planning activity prior to killing
• 2. Motive to kill
• 3. Exacting manner of killing (preconceived design)
 3 factors for Premeditation & deliberation
 (1) must involve more than a moment in point of time
 (2) must take place before commencement of the act that results in
death – precede formation of intent to kill
 (3) cold, calculated reflection

← 6. Provocation doctrine approach – Barry case.
← People v. Berry: 20 hours between initial argument and killing; court ruled there wasn’t a cooling
off period; her taunts set him off
← Provocation was culmination of all events.
← Cooling off is an issue b/c he was waiting for her in apartment for 20 hours
• The rekindling was when she came back and started screaming, a re-provocation that brings
back all past issues

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← CA doesn’t follow old approach, reasonable person (modern) side
← Point of heat of passion is to move sentence from 1st degree murder down to voluntary
manslaughter.
← In CA, informational words are sufficient to get jury instruction on voluntary manslaughter;
← CA – any evidence which tends toward adequate provocation will lead to a jury instruction on Vol
M/S.

7. Felony Murder:
a. Follows the abstract approach to the inherently dangerous rule
b. Follows the agency rule for killings by co-felons
c. Provides that burglary merges into the killing if the object crime of burglary would merge into
the killing (presumably this is still good law); and
d. Provides for both first and second degree felony murder. Note: the grading provision of the
rule also applies to malice-based killings.
e. Approach to the res gestae requirement (Bodely and Stamp cases)
← 8. “Provocative act” doctrine. Implied malice killings may be based on a co-felon’s acts that
provoke a deadly response by one who is not a co-felon. Note that a number of other common law states
also follow this rule.

← This doctrine applies when the defendant or one of the defendant’s co-conspirators (the Taylor
doctrine) acts with extreme recklessness towards another person, and, as a result, incites the other
person into killing someone. Note that this theory does not work if the co-conspirator who acted
w/extreme recklessness was the person killed. (Antick). Query whether the doctrine applies if the co-
conspirator who acted w/extreme recklessness was person killed and another person (e.g., a by-stander,
another co-felon, or a police officer) was also killed.

← 9. The natural and probably consequences doctrine. Applies to accomplice liability cases.
Assume D1 is the accomplice and D2 is the principal. If (1) D1 aids/abets D2 in commission of
Crime A, (b) D2 commits Crime B during commission of Crime A, and (c) Crime B is a natural and
probably consequence of Crime A (i.e. Crime B is reasonably foreseeable), then D1 is liable both
for Crime A and Crime B. Note that under traditional accomplice liability rules, D1 is only liable
for the object crime(s) if D1 has the mens rea necessary for those crimes.
Natural and Probable Consequences Doctrine
• If a death occurs, the accomplice will be liable for it if it is a natural and probable
consequence of the crime being committed

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• If murder occurs during robbery, will be liable for murder; by intending to commit robbery, set
in motion opportunity for murder
• Burden of proof is that the murder was a natural result of the robbery

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• Accomplice, even though he lacked mens rea and actus reus of murder nevertheless is liable
for the fallout of the crime.
Ex: If intent to rob and murder is foreseeable, don’t have to prove intent to murder. By
intending to commit robbery, set in motion the opportunity for murder; true burden of proof is
that the murder was a natural result of the robbery; accomplice, even though lacked mens rea
and actus reus of murder, nevertheless liable for the fallout of the first crime.

← 10. Conspiracy
• Lauria holding (purpose required for minor crimes, but knowledge sufficient for “serious”
crimes p. 987 top).
• Follows the Pinkerton doctrine
← Pinkerton Doctrine
← Assuming there is a conspiracy, all members of the conspiracy will be liable for their co-
conspirators’ crimes that are committed:
• In furtherance of the conspiracy OR
• Within the scope of the conspiracy OR
• Was part of the ramifications of the plan that were not foreseeable as a necessary or natural
consequence of the original conspiracy
Once the doctrine is satisfied, then accomplice liability has been established and the parties
may be labeled.
• Mens rea is not needed; by virtue of being a member of the conspiracy, the co-conspirators
will be liable if the crime falls w/in the doctrine
• Short cut to accomplice liability
• If state doesn’t use Pinkerton, have to use accomplice liability rules.
Ex: A +B+C want to commit commercial burglaries.
• A steals a car for the burglaries without B + C knowing
• Under accomplice liability rules – they wouldn’t be guilty; would have to prove mens rea for
each subsequent crime;
• Under Pinkerton – they would be guilty b/c it is in furtherance of the crime
Co-conspirator has to withdraw to get himself off the hook for future liability but not for crimes
involved in. Has to communicate to partners he wants out. Some states require he go to the
police who will give him immunity.

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Follows the bilateral approach to the agreement element

← 11. Imperfect defenses: self-defense, defense of others, and defense of
property/habitation/felony – an honest but unreasonable belief will reduce murder to voluntary
manslaughter.

Imperfect Self Defense


• honest but unreasonable belief of imminent and deadly attack
• honest but unreasonable belief that the force used was necessary
• you honestly believed, but your belief was not reasonable
Defense of Others
Defense of property/habitation

← 12. Ceballos, p. 773


• Use of a spring gun is never justified
• Defense of habitation, property, or person against one who intends to commit a felony is only
justified when the defendant reasonably and honestly believed that the victim intended to
commit an atrocious felony (see bottom p. 775 top of p. 776)
← What is an atrocious felony?

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09/09/2009 04:02:00