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Even though the actual sentence imposed is less than 1 year. ii. Common law: 1. Burglary 2. Arson 3. Robbery 4. Larceny 5. Rape 6. Murder 7. Manslaughter 8. Mayhem iii. At common law, the crimes of assault and battery were deemed to be misdemeanors, not felonies. 1. Assault and battery resulting in unintended death, the crime becomes misdemeanor-manslaughter (equivalent of involuntary manslaughter), not felony murder. ** b. Misdemeanors i. Crime punishable by imprisonment of less than 1 year or by fine only. ii. At common law, crimes, not considered felonies, were misdemeanors. c. Malum prohibitum crime i. Wrong which is legislatively prohibited or forbidden by statute. 1. Examples: Speeding, failure to register a firearm, etc. d. Malum in se i. Crime that is wrong / evil in itself. 1. Examples: Rape, drunken driving, crimes of moral turpitude (disbarment of an attorney). e. Infamous crimes i. Crime which involves fraud or dishonesty. 2. Prosecution has the burden of persuasion to prove every element of a crime beyond a reasonable doubt. 3. Affirmative defenses: a. D has some burden in producing some evidence supporting his or her defense and then the burden shifts to the prosecution. b. The prosecution must then persuade beyond a reasonable doubt. 4. Elements of a crime a. Actus reus: voluntary, conscious act i. Acts which are reflexum, unconscious or involuntary will not do (we won’t impose criminal liability where this happens).
1. If someone commits a crime while sleepwalking, we won’t impose criminal liability. ii. An omission to act may make a person criminally liable for the consequence. iii. Generally speaking, a person is not under a legal duty to render assistance to a stranger in toto. 1. Situations that give rise to a legal duty to act – omission to act cause a person to be criminally liable (another way in which the actus reus requirement is satisfied): a. Based on family relationship b. Legal duty to act based upon contract c. Legal duty to act based upon statute d. Legal duty to act based upon creation of peril e. Legal duty to act based upon assumption of care 2. Ex: You have a 2-year old daughter, Amy, who complains that her doll’s head has broken. The daughter trips into the pool and is drowning. The mother turns to the daughter and tells her to shut up. The daughter drowns. The mother in this situation would be guilty of involuntary manslugahter b/c she owed the daughter a legal duty to act, based on family relationship. 3. Lifeguard example on multistate exam. Johnny is a 19 or 20-year old and just graduated from UCLA. He has a job as a lifeguard in Santa Monica over the summer. He just got accepted into law school at Hastings. He’s under contract as a lifeguard. He’s on his lifeguard stand. He’s hired to save swimmers that might be in peril of drowning. He’s trying to make a date with the girls at the beach. He hears a swimmer calling out for help saying that he’s drowning. Johnny is too busy to get a date and has no duty to rescue. Are we going to impose criminal liability? Yes, guilty of involuntary manslaughter. He’s under legal duty by contract. 4. By statute. Failure to file income tax return. You have a statutory duty to act. If you fail to do this, you can subject yourself to civil and possibly even criminal liability. 5. Legal duty to act based upon creation of peril. You push someone in front of a train, etc. You create the dangerous creation and you’re under a legal duty to rescue the victim. 6. Legal duty to act based on assumption of care. You come to rescue person at peril. Then your job is to make sure that the person’s condition is not more dangerous than when you came. If you decide to rescue someone, you have to follow through or else you subject yourself to legal (criminal) liability. iv. But, situations where a person’s failure to act will make someone liable for the consequences.
b. Mens rea: guilty mind i. Includes various mental states ii. Main types of mental culpability: 1. Intention a. Larceny is defined as the taking, carrying away of the personal property of another with an intent to steal. Some statutes require reckless intent. 2. Knowledge a. Some statutes are defined in such a way to require a person to act knowingly, willfully, purposefully in order to be criminally liable. 3. Recklessness a. Involves a very high degree of negligence and where the defendant has a subjective awareness of substantial risk causing death or serious injury to another human being and there is a conscious disregard. i. Someone is driving 100 mph; someone is driving an automobile while intoxicated knowing of their condition. ii. Depraved heart murder iii. Involuntary manslaughter 4. Negligence a. Battery i. An unlawful application of force to the person of another. ii. If you negligently / carelessly hit someone, you can be held guilty for crime of battery. (Difference: Torts need intent to commit battery on someone). iii. Criminal battery is the unlawful application of force to the person of another (not intentional hitting – like in torts). c. Concurrence of actus reus plus mens rea i. Crime of burglary: defined at common law as the breaking and entering the dwelling house of another at night time with the intent to commit larceny or felony therein. ii. Ex: You own a ski lodge in Lake Tahoe; the ski lodge is vacant and one night there’s a raging blizzard and a transient is walking down the street and breaks in your ski lodge in order to seek shelter from the storm. The next morning, he wakes up and sees the TV; he then formulates the intent to steal, and takes the TV out of the lodge. Is he guilty? No, he did not formulate the intent to steal at the time of breaking into the ski lodge. He is guilty of larceny or theft of the television set. But, no burglary b/c no concurrence of actus reus plus mens rea.
d. Causation i. D’s criminal act must be the proximate / legal cause of the resulting harm or injury suffered by the victim. ii. Similar to tort law. iii. Multistate question: D hastens the victim’s death. Despondent person lost his job; wife has divorced him and he decides to commit suicide and wants to take his life. He goes to the top of the Empire State building and jumps down. He’s on the 5th floor, 5 seconds before he splatters on the sidewalk. As he is coming down, this one guy who says it’s Billy, I hate him, etc., he shoots Billy and the bullet goes through his heart, it kills him, and then 5 seconds later he splatters. Legal proximate cause of his death: the guy from the 5th floor; the gunshot wound…and not the splattering on the sidewalk. iv. What is the proximate cause of the victim’s injury or death? v. Transferred intent: 1. Where a person intends to commit a criminal act on another individual. 2. You shoot B but actually hit C. a. You are guilty of the murder of C under transferred intent; intent to kill B is transferred to C. vi. Medical malpractice cases and intervening acts of a third person 1. A intends to commit a crime on B, intends to injure B and strikes him with a baseball bat over his head. B is seriously injured, rushed to the hospital. At the hospital, the doctor negligently treats B. B/c of the doctor’s negligence, B dies. Where the intervening act is foreseeable, then A will be held legally responsible for the consequences. In this situation, A’s conduct would be viewed as the legal cause of B’s death here despite the fact that the doctor’s intervening negligence caused B to die. a. Intervening causation: where the intervening act is foreseeable, then the original wrongdoer will be held criminally liable or tortiously liable. b. But, where you have a superseding cause (unforeseeable cause) that will break the chain of causation relieving the original person of the consequences. c. Foreseeable that the doctor or nurse will be negligent in the treatment of the patient. However, where the doctor or nurse is grossly negligent, unforeseeable and the original wrongdoer won’t be held liable for gross or wanton medical malpractice. e. Harm or injury suffered by the victim. 5. Classification of crimes a. Strict liability crimes
i. Imposes absolute criminal liability; no defenses are available for these crimes. ii. Examples: statutory rape, bigamy. 1. Statutory rape: you go over to the tavern and you have drinks with your friend and this woman talks to you. She’s attractive. You start conversing. She says she’s 19-years old and she goes to UCLA. You invite her back to your department. You have sex with the woman. She leaves. Next week, you find out she lied to you. She was not 19 or 20. Her reach age was 11. In this situation, your mistake of fact as to her age will not be a defense to statutory rape b/c statutory rape is a strict liability crime. No defenses available. b. Vicarious liability crimes i. Where one person without personal fault is made criminally liable for the conduct of another, usually his or her employee. 1. Similar to respondeat superior doctrine in tort law. ii. Criminal law: 1. Tavern owner hires a bartender (employee); the bartender sells intoxicating beverages to a minor. Even though the minor may have looked to have been of age or looked like he had a valid ID card, where the employee is selling beverages to a minor…where it’s your employee…you as the owner of the tavern will be held vicariously liable for the bartender’s act. c. Specific intent crimes i. Most crimes are specific intent crimes. ii. Require a specific intent to commit the criminal act. iii. Larceny 1. Specific mens rea: intent to steal; intent to permanently deprive owner of property forever and ever. iv. Burglary 1. Intent to commit a larceny or felony at the time of the breaking and entering. v. False pretenses 1. Requires a specific intent to defraud your victims. vi. (All of the theft crimes are viewed as specific intent crimes). vii. Attempt / inchoate offenses 1. Specific intent to commit the target offense. 2. Attempted rape, murder, false pretenses, embezzlement: must have specific intent to commit the target offense. viii. Solicitation 1. Specific intent to commit the target offense. ix. Conspiracy 1. Conspiracy to commit larceny, burglary, etc.; must have specific intent to commit.
x. Voluntary manslaughter 1. Covers intentional killings; where the person acts with heat of passion with provocation, mitigated from murder to voluntary manslaughter. xi. Murder where it’s the intentional killing of a human being (premeditated killing) 1. Specific intent is the intent to kill. d. General intent crimes – do i. Rape 1. Nonconsensual sexual intercourse with a woman against her will. 2. We don’t have to prove that the D intended to rape the woman, but we are rather punishing the D for the act of nonconsensual intercourse. We infer a bad state of mind. ii. Battery 1. Unlawful application of force to the person of another. 2. It does not have to be intentional. 3. If you strike someone negligently, carelessly, reckless, you’re guilty of the crime of battery. 4. But if you intentionally strike your victim, then battery becomes a specific intent crime in this situation (but not necessarily). iii. Arson 1. Malicious burning of the dwelling of another; not necessarily the intentional burning. D may have caused the fire with recklessness, this will be suffice to attach criminal liability for arson. You hate John and you’re at John’s house and the cigarette accidentally drops on to the couch, you could have picked it up, but you didn’t and you let the cigarette fire increase..etc…you did this maliciously. iv. Involuntary manslaughter 1. Unintentional killings that result from the D’s gross or wanton negligent conduct. v. Depraved heart murder 1. Unintentional killings that result from the D’s recklessness. e. Specific intent crimes vs. general intent crimes i. Tested on the multistate. ii. Distinguishing between general intent crimes and specific intent crimes. 6. Defenses a. Insanity defenses i. McNaughten test is the most important test (majority rule across the country) 1. Majority of jurisdictions, a D is relieved of criminal responsibility upon proof that upon the commission of the act, he was laboring under such a defect of reason from
disease of the mind as not to know the nature and quality of the act he was doing; or, if he did know the nature and quality of the act, he didn’t know what he was doing was wrong. a. Mental disease or defect; no clear definition, but it would seem to include any mental abnormality such as psychosis, neurosis, organic brain disorders, or congenital intellectual deficiency (low IQ or feeblemindedness). ii. Irresistable impulse test 1. D will be found not guilty where he or she had a mental disease which keeps him or her from controlling his or her conduct. iii. Durham (New Hampshire) insanity test / product rule 1. A D is not criminally responsible if his unlawful act was the product of mental disease or defect. iv. Model Penal Code sanity test / substantial capacity test / modern rule (emerging rule; not adopted by a majority of the states): 1. A person is not responsible for his criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of law. v. Bifurcated trial system: (in CA & other states) – insanity defenses: 1. California and other states – 2 stage trial process where defense of insanity is raised: a. The first stage determines guilt. b. If the D is found to be guilty, the second stage determines insanity. Was the D legally insane at the time he performed the act? b. Diminished capacity or partial responsibility test i. Where the D, as a result of a mental defect or disease, did not have the required state of mind which is the element of the offense, this will be a defense. ii. Not the same as an insanity defense. iii. If a successful insanity defense is imposed, the result is a finding of not guilty by reason of insanity to a mental hospital or mental institution. iv. A showing of partial responsibility will result of not guilty in the defense charged b/c he lacks the mens rea required; oftentimes, the D will be convicted of a lesser offense. ** 1. Ex: The D is charged of 1st degree murder, requiring that the D intentionally and deliberately killed his victim. 2. Where we can show that the D did not have the premeditation / requisite intent, the D will not be found guilty of 1st degree murder, but rather be guilty of 2nd degree
murder or voluntary manslaughter. This would reduce the crime from the more serious crime to a lesser offense. c. Intoxication i. Not a defense for general intent crimes. ii. Only a defense for a specific intent crime. 1. Defense where it negates the specific state of mind required for the commission of a crime (i.e., for specific intent crimes; for specific mens rea). iii. Voluntary intoxication (self-induced), whether by alcohol or by narcotics 1. Defense to a crime that requires a specific mental state or knowledge, provided that the intoxication prevents the D from formulating the required intent or knowledge. 2. ex: You have a few drinks at a restaurant and you become intoxicated. You see a raincoat that you believe is your own, you pick it up, and walk out of the restaurant. You’re arrested and charged with larceny. Are you guilty? No, your voluntary intoxication prevented you from formulating the required intent…. 3. Defense where it negates a specific state of mind for a criminal offense. d. Involuntary intoxication i. A defense is the involuntary intoxication puts the D in such a state of mind that the D does not know the nature and quality of the act of what he or she was doing; or if he did know, he did not know that the act was wrong. ii. Similar to the McNaughten test. iii. This is a complete defense to a crime (compare: voluntary intoxication, you may be guilty of the lesser offense). e. Mistake of fact i. Defense for a specific intent crime even where the D’s mistake is unreasonable, as long as it was honest. ii. Defense for general intent crime, the mistake must be reasonable. f. Necessity g. Consent PMBR CD #2 PMBR – CD #2 I. Defenses: a. Involuntary intoxication: i. Taking an intoxicating substance without knowledge of its nature, under duress, or pursuant to medical advice. b. Infancy:
i. At common law, children under the age of 7 were conclusively presumed to be without criminal capacity, incapable of committing a crime. ii. At common law, children between the ages of 7 and 14 were rebuttably presumed that they lack criminal capacity. iii. At common law, children over the age of 14 were held responsible as adults. iv. Modern law statutes, all states have juvenile courts to exercise exclusive or concurrent jurisdiction depending upon the offense committed and the age of the offender. Defenses of Other Persons i. Self-Defense: If a person has a reasonable belief that she is in imminent danger of unlawful bodily harm, she may use that amount of force which is reasonably necessary to prevent such harm. ii. Deadly force is that which threatens death or serious bodily injury. 1. Justified in using deadly force in your self-defense. iii. Nondeadly force threatens only bodily harm. 1. Limited to using nondeadly force in your self-defense. Rights of the aggressor: i. An aggressor is the person that strikes the first blow or commits a crime against the victim. ii. Right of self-defense isn’t available to the aggressor. iii. Exceptions – where the aggressor may retain the privilege of selfdefense: 1. Can get self-defense where aggressor has completely withdrawn but the other party – the victim -- attacks the aggressor, or 2. Escalation of force by the victim after the initial aggression. iv. American view: No duty to retreat self-defense. Defense of others: i. Majority of view same as self-defense (American law); one is privileged to use reasonable force in defense of another person, even a stranger, where she reasonably believes that the stranger is in immediate danger of unlawful bodily harm. ii. Minority of states alter-ego rule: 1. Right to defend another is extensive with the right of the other to defend herself. 2. If you make a mistake where someone else is the aggressor and then the other party gets the upper hand and the victim is on top of the aggressor and you falsely believe that the victim is the aggressor, come to the aid of the aggressor – who actually happens to be the victim but for your mistaken belief, in alter ego jurisdictions, you bear the risk and you are responsible where you murder or injure the victim. Defense of property
i. You are not allowed to use deadly force in defense of property. ii. Reasonable force not likely to cause serious bodily harm or injury can be used in the defense of property. iii. You can’t use a spring gun or any other deadly mechanical device on your property…if a trespasser or intruder is caught and killed by the mechanical device, you can be guilty of murder. Law enforcement defenses by people and police officers: i. Police officer may use that amount of nondeadly force which he or she reasonably believes is necessary to effectuate a lawful arrest or to prevent the escape of the arrestee. ii. Deadly force may not be used to prevent the escape of an misdemeanant. iii. However, police officer may use deadly force where it reasonably appears that a felony has been committed and it’s necessary to use such force in arresting such a person. Private citizens are privileged to use that amount of nondeadly force that’s reasonably necessary to prevent the commission of a felony or misdemeanor. i. Private citizen may use nondeadly force to make an arrest if the crime has in fact been committed and the private citizen reasonably believes that the person against whom he or she is using the force has in fact committed the crime. ii. Private citizen as far as deadly force is concerned, may use the same amount of deadly force as a police officer, only for dangerous felonies such as murder, voluntary manslaughter, robbery, rape, kidnapping, burglary and the person against whom the force has been used has in fact committed that felony. Resisting unlawful arrest: i. A D may use reasonable nondeadly force to resist an unlawful arrest. ii. An individual may only resist a lawful arrest by a police officer where the D does not know that the other person is a police officer and this presents a situation of self-defense. ** Defenses of necessity and duress i. Necessity: Pressure from natural or physical forces. 1. Where an individual reasonably believes that his criminal conduct is necessary to avoid imminent injury resulting from natural, nonhuman forces, then the D can justify in engaging in criminal conduct. 2. Examples: (where the D is permitted / excused) a. D intentionally kills one person to save 2 or 3 other people. A person is driving down the street and the woman entered the street with a baby carriage, walking against the light. The D motorist in order to avoid striking a woman and her baby as she enters into an intersection, she intentionally drove into
another lane, killing another motorist. D was found not guilty of manslaughter because of the necessity situation. D intentionally killed one person to save two people. b. Firefighter that destroys property (i.e., one home) in order to prevent a fire from spreading and engulfing other homes. 3. One who intentionally kills another to save himself, this is not justified under the necessity doctrine. ii. Duress: Involves human threats. 1. Justifies criminal conduct where the D reasonably reasonably believes that the only way to avoid unlawful threats of great bodily harm or imminent death is to engage in conduct proscribed by law. k. Defense of domestic authority i. Parent of a minor child or person standing in loco parentis may use reasonable force to promote the child’s welfare or discipline the child. l. Defense of entrapment: i. Entrapment occurs if the intent to commit the crime originated not with the D, but rather with law enforcement officers. 1. Requires 2 elements: a. The criminal design must have originated with law enforcement officers. b. ** The D must not have been in any way predisposed to commit the crime. ** i. If the D was predisposed to commit the crime, then the defense of entrapment is not available. m. Mistake of fact i. A defense which negates the existence of a specific mental state required to establish a material element of a crime or negates a specific mental state required for the commission of a crime ii. Example: 1. You go to the restaurant to eat dinner and you put the hat on the coat rack and you go back to the coat rack and it appears to be your own and by mistake you put the other customer’s hate on your head and you’re immediately charged with larceny. What’s the result? a. Your mistake of fact negates your intent to steal; therefore negate the specific mental state required for larceny; therefore mistake of fact would be a defense. iii. Specific intent crime: 1. Negating the existence of a specific intent of crime, the mistake of fact or mistake of law need not be reasonable; it may be unreasonable as long as it’s honest.
iv. General intent crime: 1. Mistake of fact is available as a defense as long as the mistake was reasonable. n. Mistake of law i. Generally, ignorance of the law, mistake of law, is no defense. ii. Exceptions: 1. Mistake of law may be a defense where the D does not know of the enactment defining the crime and where it has not been reasonably made available (i.e., where the crime law is not on the books and the D is not aware that the crime law has recently been enacted). 2. Where the D reasonably relies upon an official statement (by a public officer or a department) of the law subsequently determined to be incorrect or invalid. o. Consent of a victim i. Example: 1. If you consent to have a fistfight with your adversary, this would be an available defense to battery. 2. This would be an available defense to rape. If a person consents to engage in sex, then you don’t have a nonconsensual situation. 3. A defense where the victim consents to engage in conduct. ii. But, where consent is by fraud or deceit, then fraud or deceit may negate the consent. 1. If a doctor engages in sex with the female patient under circumstances where she does not know what is occurred and believes she’s submitting to a medical examination, obviously consent would not be a valid defense because it’s negated by fraud. 2. Multistate question: Where the defense of consent is not valid to a statutory offense of fraternity hazing and the D, the brother in the fraternity that committed a criminal act on one of the pledges, he tried to use the defense of consent claiming that the pledge consented to the hazing. Where the pledge consents to the activity, this is not a valid defense. Inchoate Crimes a. Inchoate crimes b/c they’re anticipatory offenses; crime need not be completed in order for they to be convicted. We convict someone for planning or conspiring to commit a crime. b. 3 crimes: i. Solicitation 1. At the moment the D entices, encourages, advises, counsels another person to commit an unlawful criminal act. 2. Solicitation merges into the completed offense once the crime has been completed.
a. If you solicit someone to murder your husband and the person solicited does commit the murder, you would be guilty of murder, not solicitation and murder. ii. Attempt 1. Attempt is a specific intent crime. 2. Example: You’re charged with attempt to commit larceny. In order to be charged with this, you have to be charged with the crime with the specific intent to steal. Ex: Murder; have to have specific intent to kill. Ex: Charged with burglary; you must have the specific intent to commit the burglary. Ex: Intent to commit false pretenses; assault; rape, etc…. 3. D must have the specific intent to commit the target crime in order to be convicted of the inchoate crime of attempt. 4. Elements: a. D must do an act (perform an act) that constitutes a substantial step, an overt act b. In furtherance of the commission or attempted commission of the crime. Mere preparation is not enough. iii. Conspiracy 1. Specific intent crime, just like attempt. 2. D must have the specific intent to commit the target offense. 3. Charged with conspiracy to commit larceny; if you don’t have specific intent to steal, you can’t be convicted of conspiracy to commit larceny. 4. There must be an agreement between 2 or more individuals (the co-conspirators) to commit that offense; you must have a meeting of the minds. 5. Conspiracy does not merge with the completed crime. a. Ex: You’re charged with conspiracy to commit murder, you are charged with conspiracy to commit murder and murder. (Important to remember for the multistate). 6. Each co-conspirator is held criminally liable for all of the foreseeable crimes of all of the other co-conspirators which were committed in the spirit of the conspiratal goal, that occur during the course of or in furtherance of the conspiracy. a. Ex: You enter a conspiracy to rob a bank with your buddies. You’re in the getaway car, the driver. 2 other guys, your coconpirators enter into the bank. One guy puts a gun to the teller’s head and says, “Your money or your life.” The other guy then hops over the counter, pulls down his pants and commits rape during the course of robbery. Is the getaway
driver going to be criminally responsible for the rape? No, because it’s not foreseeable that a bank robber will commit rape over the counter in a bank over the course of the robbery b/c a bank robber would want to get the money and get out of there as soon as he can. 7. Procedural issues: a. The acquittal of one coconspirator results in the acquittal of the other coconspirator. b. You need 2 guilty parties for a conspiracy. c. Warden rule: i. There are certain crimes that are referred to as warden rule crimes: bigamy, incest, adultery, dueling, and bribery. Where a crime requires participation by two individuals or a certain number of participants…if you convict the 2 participants of bigamy, adultery, etc., if you convict the participants of the completed crime, you cannot also convict them of conspiracy. 1. Example: A and B engage in adultery and are convicted of the completed crime of adultery, you cannot convict them of conspiracy to commit adultery. Rationale: this would be double jeopardy. 8. Defenses: a. Cold feet / changing your mind is not an effective renunciation for withdrawal from a conspiracy if the getaway driver is in the car and the crime hasn’t been completed yet. b. Party that wants to withdraw must give timely notice to all of the other members of the conspiracy and thwart the success of the criminal endeavor. ** c. Once they enter into their agreement to commit a crime, the conspiracy has been finalized. In order to withdraw from a conspiracy, you must give notice & thwart the success of the criminal endeavor of an effective withdrawal from a conspiracy. c. Solicitation merges with the completed crime. d. Attempt merges with the completed crime. e. Ex: If you are charged with attempted murder and the murder has been committed, you are charged with murder only, not both the attempt and the completed crime of murder. c. Defenses of impossibility a. Factual impossibility
b. Legal impossibility c. Common law rule i. Factual impossibility is not defense to attempt ii. Legal impossibility is a valid defense to attempt d. These distinctions today do not distinguish impossibility. e. Modern view (MPC view): i. Impossibility is not a defense when the D’s intent is to commit a criminal act. f. On the multistate, follow common law, unless stated otherwise. g. On the multistate, burglary, etc., other crimes are common law. i. Most modern statutes have done away with the nighttime element. Accomplice liability a. Principal in the first degree i. Perpetrator of the crime; person who commits the crime. ii. Ex: Bank robbery ;goes into the bank, puts the gun to the teller’s head and says “Your money or your life.” b. Principal in the second degree i. Person who is present during the commissioner of the crime (aids, encourages, abets, counsels), but does not actually commit the crime using his or her hand. ii. Ex: Getaway driver; person is just as guilty as person as principal in the first degree. c. Accessory before the fact i. One who aids, abets, encourages another person in the commission of the crime, but is not present during the actual commission of the crime. ii. Compare: Presence is the only distinction between the principal in the second degree & accessory before the fact. d. Accessory after the fact i. Not an accomplice, but a person who has obstructed justice; a person who assists a person who has committed a crime. Crime for which she’d be convicted of is not an accomplice, but rather with obstruction of justice. e. a –c all accomplices, subject to the same criminal liability and punishment. i. Accessory after the fact is not an accomplice. f. Accomplice liability: i. 2 requirements: 1. Accomplice must aid, abet, or encourage another person in the commission or attempted commission of the crime 2. with the intent that the crime be committed. ii. Accomplice is going to be held criminally responsible for all of the consequences which are reasonably foreseeable (natural, probable outcome of the criminal endeavor). 1. Ex: You give someone a gun knowing it would be used in a bank robbery and you’re an accessory before the fact and the
person uses that gun to rob the bank and shoots and kills a police officer or security guard, you’re guilty of murder b/c you’re guilty of all of the crimes that were committed in furtherance of that crime. Crimes against the person a. Murder – 4 types i. Intentional killing of another human being where the D acts with premeditation or deliberation. (ex: lying in wait / stalking the victim and then you shoot or poison the victim). ii. Intent to inflict serious bodily injury: D does not intend to kill the victim, but intends to inflict serious bodily injury. Example: take a baseball bat and hit John with it and seriously hurt him. It turns out that John is a hemophiliac and he dies. You’re guilty of murder with intent to inflict serious bodily injury. iii. Felony murder: Unintentional killing. All the participants are held criminally liable for any unintended death or killing that occurs during the commission or the attempted commission of a felony. 1. B a. Burglary 2. A a. Arson 3. R a. Rape 4. R a. Robbery 5. K a. Kidnapping 6. Where the felony is of an inherently dangerous or serious nature and there is a killing, all the participants are guilty of felony-murder. 7. 2 requirements for felony murder: a. The underlying felony must be of an inherently dangerous nature (BARRK). b. You need a causal connection between the underlying felony and the resulting death that occurs. ** iv. Depraved heart murder: 1. Unintentional killing where the D’s conduct is reckless. 2. Multistate: a. Distinction between depraved heart murder and involuntary manslaughter. i. Both depraved heart murder (reckless – D’s conduct); involuntary manslaughter (grossly or wantonly negligent) – cover unintentional killings both involve a high degree of negligence.
ii. Example: You just pass the CA bar exam and you decide you’ll go to NYC and celebrate for a week and you get in a hotel. It’s 12PM on a Monday afternoon. You’re on the 40th floor and you take your TV and throw it off the balcony. It crushes 2 pedestrians on the street. The police officers say you’re being charged with murder. 1. You’re guilty of depraved heart murder; your conduct was reckless; you should have been aware of the substantial risk of causing death or serious bodily injury to another human being. Your conduct showed a conscious disregard of that risk. 2. Main distinction between depraved heart murder is that with recklessness, the D has a subjective awareness of the substantial risk and there’s a conscious disregard. iii. More distinctions: 1. If you drive a car at 100mph at downtown LA at 12Pm and pedestrians are crossing the main streets. A pedestrian steps out and is killed by the car. You’re guilty of deprived heart murder. 2. But, if you’re driving in a rural part of the state at 2AM, and a pedestrian steps out, you’re guilty of involuntary manslaughter. 3. You fire a gun into a passenger train (Amtrak) that you know is occupied, you’re guilty of depraved heart murder. 4. You fire a gun into a cargo car on a train that’s normally not occupied and a hobo gets killed, you’re guilty of involuntary manslaughter. 5. You fire a gun into a house that is normally occupied, you’re guilty of depraved heart murder. 6. You fire a gun into a house that is normally not occupied, you’re guilty of involuntary manslaughter.
PMBR CD #3 PMBR – CD #3 – Criminal Law I. Depraved Heart Murder and Involuntary Manslaughter a. Example: Survivor in a game of Russian roulette is guilty of depraved heart murder. b. Example: Throwing a kerosene lamp at someone…and throwing empty beer bottles…it hits one of the pledges with a lamp…the pledge dies. This is depraved heart murder b/c of the substantial risk of causing death. c. Example: Firing a gun 10 feet over someone’s head and that bullet bounces off the wall and kills that person, you’re guilty of depraved heart murder. d. Red Line limitation (PA case): (majority view – followed under multistate) i. A felon is not guilty of felony murder where the killing constitutes a justifiable homicide, such as where the police officer or victim shoot and kill a co-felon, then the other co-felons are not guilty of the death of their cohort. ii. Compare: At common law, where you had an unintended death, all of the participants in the conspiracy would be guilty of the death of their cohort. Degrees of murder a. 1st degree murder: intentional killing with premeditation or deliberation (all jurisdictions) b. 2nd degree murder: intent to inflict serious bodily injury murder c. felony-murder: 1st degree in most jurisdictions d. depraved-heart murder: i. 2nd degree in most jurisdictions Manslaughter a. Voluntary manslaughter i. Always covers an intentional killing in the heat of passion, where the D acts with adequate provocation ii. Example: You leave the lecture early and your wife isn’t expecting you home so early and you get home and your wife is not in the living room, she’s not in the kitchen, etc. You knew she had a splitting headache, so she’s probably in the bedroom resting comfortably. The door is slightly ajar and your wife is having sex with the neighbor next-door. And you kill your neighbor. This is an intentional murder with the heat of passion. This is voluntary manslaughter. iii. Adequate provocation: majority rule must be measured objectively so that the objective, reasonable person would lose control. iv. Strong minority (MPC): we should take into account the subjective susceptibilities or sensitivities of a particular D. **
v. On the multistate, go with the majority rule, unless they tell you otherwise. vi. Mitigating circumstances: 1. Heat of passion 2. Imperfect right of self-defense: may mitigate murder to voluntary manslaughter where D was at fault at starting the provocation or unreasonably but honestly believed in the necessity of responding with deadly force. a. P would be guilty of voluntary manslaughter. (minority view) ** b. Involuntary manslaughter i. Always an unintentional killing that results from the D’s gross, wanton negligent conduct. ii. Criminal negligence involuntary manslaughter 1. D’s conduct is grossly or wantonly negligent. 2. Unintended death comes from the D’s gross, wanton negligent conduct / criminal negligence manslaughter. iii. Unlawful act or misdemeanor manslaughter. 1. Ex: Misdemeanor: assault and battery (at common law, these were misdemeanors); anytime assault and battery result in unintended death, then the D is guilty of involuntary manslaughter (misdemeanor manslaughter). 2. This applies to nondangerious felonies, such as larceny, (resulting in an unintended death). a. Ex: Pickpocket case. You’re waiting at the busstop and this guy is robbed. Then, he says someone’s stolen my wallet and he has a heart attack and dies. He’s guilty not of felony-murder b/c larceny isn’t an inherently dangerous felony, but rather unlawful act manslaughter / involuntary manslaughter. Criminal Battery a. Unlawful application of force to the person of another that results in either bodily harm or an offensive touching. b. General intent crime. c. Covers situation where the touching occurs as a result of the D’s careless, reckless, etc., conduct. d. If you specifically intend to strike someone, it’s a specific intent crime. e. Ex: Jimmy and Chrissy are playing tennis at the country club. After their tennis match, they go to the bar of the clubhouse, having a drink. They’re standing around at a crowded bar. As they’re having their drink to cool off, Chrissy says to Jimmy: will you show me that backhand of yours? He swings it about and hits Ivan in the mouth; Ivan is not injured. i. Jimmy’s conduct was careless; battery is a general intent crime and he would be guilty of battery where his conduct were careless or negligent. Criminal Assault
a. Attempt to commit a battery i. Where the D had the specific intent where he intends to commit a battery. (majority) b. Intent to frighten i. Minority rule c. Aggravated assault: i. All jurisdictions punish more severely aggravated assault than simple assault. ii. Where D uses an unloaded gun or toy gun, one who with a loaded or unloaded gun intends to frighten his victim with no intent to kill, he is guilty of simple assault if he succeeds in frightening his victim. (D should be convicted of simple, not aggravated assault.) 1. If the D has an unloaded gun, he cannot be convicted of aggravated assault. In order to achieve an intent to kill, D must have the mental state of mind (can’t do this with an unloaded gun). d. D has an unloaded gun and the victim is placed in apprehension of fear, thinking the gun is loaded, then D is punished for armed robbery. i. But, for aggravated assault, no conviction. Mayhem: a. At common law, required an intent to maim or do bodily injury by an act which dismembered the victim or disabled his use of a bodily part. b. Modernly, mayhem can include personal or permanent disfigurement. c. Most states have abolished mayhem and treated it as aggravated battery or permanent disfiguration or disfiguration of the victim. ** Kidnapping a. Unlawful restraint of one’s personal liberty by force or a show of force so as to send the victim into another country. b. Modern statutes: i. Only require that the victim be taken to a different location, against his will, by a show of force. Rape and statutory rape a. Nonconsensual sexual intercourse with a woman against her will. b. Consent can be a defense to rape. c. Statutory rape is where you have intercourse with a girl under the statutorily prescribed age of consent. i. Strict liability crime; no defense. Absolute liability. Larceny a. Defined at common law as the trespassory (i.e., without consent) taking, carrying away, the personal property of another with the intent to steal. i. One takes another’s property intending to use it temporarily and to return it unconditionally to the owner and after you take the property, you subsequently form the intent to steal, we say there is a continuing trespass and this is sufficient for the first element for crime of larceny. **
b. Trespassory caption (taking) you take the personal property of another c. Asportation carrying away (need only be a slight distance) carrying away i. If you move someone’s watch 6 inches, and the watch owner sees you, and you move it only 6 inches away, you’re guilty of larceny. d. Personal property: i. At common law, you need tangible personal property. ii. Modern statutes have included intangibles such as theft of service, theft of gas, electric, etc. e. Intent: i. Intent to steal ii. Intent to permanently deprive the owner of property forever and ever. f. Defense to property: i. One who takes another’s property depending at the time to use it temporarily and then return it unconditionally, within a reasonable time, and you have a substantial ability to do so, you lack the required mental state for property. g. Finders of mislaid property i. In order to be guilty of larceny: 1. Finder must, at the time of finding, must intend to steal the property and either know who the property is or have reason to believe that he can find the other person’s identity. 2. Continuing trespass does not find to finders of mislaid property (can’t be formed later after you take the property). h. Larceny by trick i. Not a separate crime of larceny, but a form of larceny; one way in which larceny can be committed. ii. Same as larceny, but taking is accomplished by lies, deceit, or false statement. iii. The same as larceny, except that the taking of property is accomplished by lies, deceit, or false statements. 1. Example: a. Stevie Garvey, a famous person. You know Stevie has an expensive oriental rug collection and you find out that he’s going on a business trip and he’s going out of trip. The rug is worth $500K and you say you’re going to steal these rugs. When he’s out of town, you drive up a white van that says “Oriental rug cleaners.” You knock at the door and you say to the wife that you’re to pick up the carpets and clean it and we’ll return it next week. You put it in the van. Your crime is not larceny ,but larceny by track
because it’s accomplished by lies, deceit, false statement. i. False pretenses i. Substantially the same as larceny by trick. ii. Taking of property of another by lies, deceit, or false statement. iii. Mens rea: intent to defaud your victim (same as larceny by trick) iv. Only difference: in larceny by trick, D by his lies, deceit, or false statement only acquires possession over the property, title does not pass. But, in false pretenses, title passes; the D acquires title and possession. ** 1. Differentiating between the two: a. Where you have $$ involved, title passes with money. v. Examples (multistate exam; crimes that are false pretenses): 1. Credit card fraud 2. Mail fraud 3. Confidence game schemes a. Guy approaches elderly lady for her social security check cash in exchange for $250,000 award that doesn’t exist. 4. Violation of blue sky laws (someone sells worthless stocks in violation of blue sky laws, defrauding someone) 5. Bad checks a. Split: i. False pretenses ii. Larceny by trick b. Where the D knows that he or she has insufficient funds in the account and there’s an intent to defraud by issuing a check, then it’s false pretenses. j. Embezzlement i. Fraudulent conversion or misappropriation of the personal property of another by one who is in lawful possession of it. ii. Not larceny, larceny by trick, false pretenses. iii. Where the bailee misappropriates or fraudulently converts the bailor’s property. iv. You ask a jeweler to repair a watch and sees it’s worth a lot and he attempts to substitute it with a cheap copy; you have a fraudulent conversion by the bailee. You have to have an entrustment to have embezzlement (as here). v. Defenses: 1. One who converts the property of another is not guilty of embezzlement if the person believes that it’s his or her property.
2. Intent to return the property, where she has the substantial ability to return the property after a period of time. a. Intent to return the equivalent is not the same thing (i.e., spending a person’s money and then winning the lottery and returning the money 2 weeks from the time stolen) – it’s not a valid response. k. Robbery: i. About the same as larceny. 1. Trespassory taking; carrying away the personal property of another; with the intent to steal. ii. Two additional elements: 1. Taking is from the person’s person or presence 2. Taking is accomplished by force or intimidation a. Intimidation: threat must be of immediate bodily injury or intimidation, not future harm. b. Mere threat unaccompanied by physical harm or physical force is sufficient as long as that threat arouses the reasonable fear in the victim. iii. Larceny is the lesser included crime in robbery. iv. Robbery is the equivalent of larceny plus assault, where the victim is intimidated; or larceny plus battery if the person is actually struck. v. If you find the person guilty of robbery, you can’t convict the person of robbery plus larceny or robbery plus assault; these lesser included offenses merges with robbery. vi. Larceny by trick: lies, deceit, false statement. vii. Robbery: accomplished by force, violence, or intimidation. viii. Multistate exam: 1. Where someone snatches your purse or neckless, generally this is not violent enough to constitute robbery. This is larceny. 2. But, where the person is aware of the snatching and the victim resists and a struggle ensues, this is enough to constitute robbery. l. Receiving stolen property i. Common law misdemeanor ii. Where the D knows (has actual or constructive knowledge) that the property is stolen. iii. Ex: You’re leaving and some guy says to you that he has a $5 color TV for sale. Around the corner is a van with 50 of these TV sets. You give him $5 and you are walking down the street with a TV and the police officer says you’re charged with receiving stolen property. 1. You should have known that the property was stolen property. iv. Once the police recovers the stolen property, it loses its status being stolen.
1. Ex: Women reports stolen ring. And, the police says, can we entrap someone….and the police tries to sell the ring to a certain person. Is the person going to be guilty of receiving stolen property? No. X. Burglary and Arson a. Burglary: Breaking and entering the dwelling house of another at nighttime with the intent to commit a larceny, or felony therein. i. You had to have a breaking (actual or constructive) to be guilty of burglary. 1. If someone etners someone’s home through an open door or window, this is not breaking and the D would not be guilty of murder. ii. Multistate: person had the window open 6” and the prowler gained entry and pried open the window 6 more inches and stole a wallet; this constituted a breaking. iii. constructive breaking: 1. Breaking is accomplished by fraud, intimidation, or through a chimney. 2. Ex: Guy came to someone’s home and the guy said “Domino’s Pizza”, the guy came in, punched the occupant, committed a larceny in the home. Entry was by fraud; constructive fraud; therefore, the D would be guilty of burglary under these circumstances. iv. Dwelling house: 1. Any place of human habitation: hotel room, motel, trailer, van (where someone sleeps), any area where someone sleeps. 2. Buildings not used for habitation: barns, stables, other outhouses, might be subject to burglary if they were part of the curtelage or main house for the burglary. 3. A place of business may be subject to burglary if it’s usually slept on by the proprietor. 4. Place of business used only during the day a. Won’t qualify as a dwelling house. b. But, if it’s attached to the dwelling house (Ex: business is in the 1st floor and you live on the 2nd floor), at common law, this would suffice for the dwelling house requirement at common law. b. Arson: the malicious burning of a dwelling house of another. i. Arson does not have to be intentional to set fire to someone’s home. You just have to show D’s conduct was malicious or reckless; more than ordinary negligence. You could not commit arson where you burned out your own home to collect insurance proceeds – this would not constitute common law arson b/c it’s the “malicious burning of another.”
ii. Where we have charring; there has to be You could not commit arson where you burned out your own home to collect insurance proceeds – this would not constitute common law arson b/c it’s the “malicious burning of another.” iii. Where we have charring; there has to be charring or slight burning of the premises to constitute sufficient damage to the structure.
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