CJ 501 Final Study Guide PDF

Outline of Specific Topics and Case Law: Theft and Property Offenses Common law origins of larceny o Elements: 1. Trespassory taking (without permission) 2. And carrying away (asportation) 3. Of the personal property 4. Of another 5. With the intent to permanently deprive...

Outline of Specific Topics and Case Law: Theft and Property Offenses Common law origins of larceny o Elements: 1. Trespassory taking (without permission) 2. And carrying away (asportation) 3. Of the personal property 4. Of another 5. With the intent to permanently deprive o The property must be a thing of value, however, any minimal value will suffice (e.g. the purloined letter). o Common law larceny only applied to personal property. o Larceny was not one of the original common law felonies but became part of English common law when all felonies were still punishable by death. Larceny was divided into two types based on the value of the property: 1. Grand Larceny- Theft 2. Petit Larceny- Petty Theft Types of Larceny 1. Larceny – A trespassory taking without feat or force. Generally characterized as a crime against property – (regular larceny – stealing in the common sense. Taking personal property not your own with the intent to never return). 2. Larceny by false pretense (fraud) – by trick or false pretenses AKA fraud. à Theft without trespass. Instead the person was tricked or defrauded into transferring title or possession. à Elements: 1. Knowingly 2. Making a material misstatement of fact 3. With intent to cause transfer of title of possession 4. Of the property of another 5. And title or possession was transferred (if title is not transferred it is the lesser offense of false pretense). à The essence of fraud is material misstatement to acquire property. 3. Misappropriation (embezzlement) – misusing property entrusted to an agent. à Common Law Elements:  1. Fraudulent 2. Conversion or theft 3. Of property 4. By someone in lawful possession of the property. Trespass – the law of theft and the law of trespass were intertwined. In the context of real property, the common law of trespass is still prevalent and enshrined in statutory codes with these typical elements: à Common Law Trespass Elements 1. Remaining 2. On the private property of another 3. After notice to leave 4. By owner or agent o Every jurisdiction makes it a crime to trespass, the typical remedy for trespass is civil. There are two types of civil actions: 1. Eviction – for tenants who have violated or held over on their lease. 2. Action in ejection – for a person who was not an tenant. à Trespass to Chattels § The trespassory taking of the personal property of another. § Elements of trespass + movement (asportation) àConversion § A trespass to chattels that permanently deprived the owner of the value of value of the property. § *Trespass to Chattels and Conversion are still civil causes of actions in tort law. California Theft- Penal Code 484(a) § (a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. § Elements: (a) Every person who shall:  o feloniously steal, take, carry, lead, or drive away the personal property of another, o OR fraudulently appropriate property which has been entrusted to him or her, o OR knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, o OR causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. *Penal Code sec. 487 defines Grand Theft as any of the above thefts involving property worth more than $950 dollars. à People v. Williams 305 P.3d 124 (2013) (Kadish 11th ed) § Facts: Williams used credit card encoded with a third party’s credit information to purchase gift cards at Walmart. Clerk noticed the mismatched information and confronted the defendant. Williams headed for the exit and shoved a store security guard along the way. § P: Defendant was charged with multiple counts of Robbery Cal. Penal Code sec 211. He was convicted and sentenced to 23 years and 8 months under a three strikes enhancement. § Issue: At issue here is the meaning of “felonious taking.” whether robbery’s element of “felonious taking” can be satisfied through theft by false pretenses, the type of theft defendant committed. § ROL: Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. o The court reviewed the English common law of theft law focusing on larceny’s elements of “the taking of another’s property, with the intent to steal and carry it away.” The taking required in larceny, as in robbery, must be “felonious.” o The court found that larceny was a necessarily included offense in robbery. The court examined notes that the difference between larceny and false pretenses (fraud) is the asportation element. § Holding: We have delved into the history of the common law crime of larceny and the statutory offense of theft by false pretenses and concluded that the words “felonious taking” in the robber definition were intended to refer only the theft committed by larceny and not to theft by false pretenses [i.e. fraud]. à Topolewski v. State, 130 Wis. 244 (1906) – Trespassory taking means taking without permission or consent. § Facts: The defendant was owed money by Dolan, who worked at the Plankinton Packing Company. Dolan agreed to provide three barrels of the company’s meat as payment of the  loan payment. Dolan said he would leave the barrels on the loading platform where the defendant could load the barrels on his wagon and drive away as if he were a customer. § Dolan informed his employer of the situation. And the employer instructed him to feign cooperation. Another employee, Klotz, supervised the transaction on the loading dock when the defendant took the barrels. § Procedure: After taking the Barrels the defendant was arrested, charged, and convicted of stealing the barrels of meat. § Issue: Did Dolan’s agreement with the accused to place the property of the packing company on the loading platform, where it could be appropriated by the accused... constitute consent to such appropriation? [Did the owners consent]. § ROL: Regina v. Lawrence, 4 Cox QC. 438, held that if the property was delivered by a servant to the defendant by the master’s direction the offense cannot be larceny, regardless of the purpose of the defendant. In Rex v. Egginton, 2 P. 8c P. 508, [a] servant informed his master that he had been solicited to aid in robbing the latter’s house. By the master's direction the servant opened the house, gave the would-be thieves access, so not all the elements of larceny could be met. The court read these two cases to mean, There can be no larceny without trespass. § Holding: (Paraphrased) If the taking occurred with consent of the owner there was no theft. § Dispo: Reversed and remanded for a new trial. à Hufstetler v. State, 37 Ala. Api. 71 (1953) § Facts: The owner testified- On March 29, 1952, the defendant drove in an automobile up to the gasoline tanks. There were some two or three other men in the car with him. A man in the back seat got out and said, "fill it up." The owner put 6 ½ gallons of gasoline in the car. The man asked for a quart of oil. When the owner to get it, the defendant drove off in the automobile together with the man who ordered the gas and the others in the car without paying for the gasoline valued at $1.94. § P: The accused was convicted by the court without a jury of petit larceny (aka petty theft). § I: Whether, on the basis of the above proof, the judgment of conviction can be sustained. [i.e. Did the defendant commit larceny?] § ROL: The court distinguished between larceny, false pretenses, and embezzlement and looked to a Massachusetts, Commonwealth v. Barry. The court found that using a trick rendered the owner’s consent invalid therefore there was a trespass. § Holding: The facts here showed a trespassory taking and the defendant was correctly convicted of larceny. à Nolan v. State, 131 A.2d. 851 Attempts and Parties to a Crime Historical trends in the law of Attempts o English common law – attempt was not punished as a crime o Originally prosecuted as misdemeanors, punishment for attempts got more severe over time. o Late 1700s, early 1800s – change in punishment for attempt crimes à Rex v. Scofield (1784) – first recognition of common law attempt; the Court held that a defendant could be charged with attempting to burn down a house. à Rex v. Higgin (1801) – the court stated that acts or attempts that harm a community may be subject to criminal indictment. California Penal Code sec. 664 o Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished as follows: § Attempt misdemeanor or regular felony = one half sentence of the predicate offense. § Attempt felony punished by life or more = five, seven, or nine years. § Attempt murder = life. Mens rea for attempts o Elements required for the crime of attempt 1. Mens Rea – nearly all jurisdictions require a specific intent to commit a crime. § Specific intent: the offender not only intended to engage in actions that cause the crime, but also intended to complete the target offense. 2. Actus Reus – the offender must take some actions towards the target crime. § Actions that tend toward the commission of the offense. § Mere preparatory acts do not count. § Different states use various standards. à Jones v. State, 689 N.E. 2d 722 (Ind. 1997) § Facts: Defendant shot at a house full of people (rival gang members), killing Williams and injuring Gamble. § Procedure: He was convicted of murder of Williams but acquitted of attempted murder of Gamble. On appeal, the defendant argued that this was an inconsistent verdict. § Holding: The Supreme Court of Indiana found that this was not inconsistent. Attempted murder requires a higher mens rea than murder. For murder it is sufficient to show the defendant engages in conduct knowing of a high probability  of death (depraved heart). For a conviction of attempted murder, you must show a specific intent to kill. So, in this case the verdicts were not inconsistent. àPeople v. Thomas, 729 P.2d 972 (Colo 1986) (Colorado is one of only states not using the specific intent as the standard) – This case is an outlier in the law of attempts based on Colorado law which allows conviction for attempts with less than specific intent. In contrast, most other legal jurisdictions and scholars agree that there is no attempted reckless. § Facts: On 2/4/81, defendant received a call from a former girlfriend stating she had been raped in her apartment by a man who lived upstairs. The defendant arrived at the woman’s apartment, armed with a pistol. Pretending to be an officer he went into the apartment upstairs and detained the alleged assailant at gun point. The defendant took the assailant downstairs and the woman identified him as the rapist. The defendant instructed her to call the police, but the assailant ran. The defendant gave chase and fired three shots two of which struck the fleeing man. § The defendant testified that he fired the first shot as a warning when the man was going up the stairs. He fired a second shot accidentally when the man kicked him while on the stairs. The third shot was also a warning shot, fired from the outside of the building near the window of the apartment occupied by the alleged rapist. When the police arrived, they found the defendant still waiting outside, holding the gun. § Procedure: Defendant was convicted of attempted reckless manslaughter and first degree assault as the result of a jury trial in Adams County District Court. On the first appeal the defendant argued, among other things, that attempted reckless manslaughter is not a cognizable crime in Colorado. The court of appeals agreed with and reversed the conviction for attempted reckless manslaughter, but affirmed the conviction for first degree assault. The state appealed to the state supreme court. § Issue: Whether attempted reckless manslaughter is a cognizable crime in the state of Colorado. § ROL: The court looked to the state definitions of reckless manslaughter and the definition of criminal attempt. Specifically, “A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense.” The court looked to prior cases applying this definition. § Holding: The state supreme court held that specific intent is not required and that an “attempted recklessness” is legally cognizable under Colorado law. § Dispo: The Supreme Court of Colorado reversed the appellate court’s judgement and reinstated the defendant’s conviction of attempted reckless homicide. à General vs. Specific Intent  § General Intent: the defendant had the intent (i.e. conscious desire or objective) to engage in the prohibited act. § Specific Intent: the defendant had the intent (i.e. conscious desire or objective) to engage in the prohibited conduct, and actively desired the prescribed criminal consequences to follow that act. Two more practical definition: 1. General Intent + an intention to complete the target offense. 2. General intent + plus an additional mens rea element. Actus Reus For Attempts o Different jurisdictions use various tests for determining the actus reus for attempt. o Ancient Common Law: Regina v. Eagleton à Last act – defendant has taken all steps to carry out the crime. No modern courts use this standard. o New York: People v. Rizzo à Dangerous proximity – defendant gets very close to committing the intended crime. o Federal: United States v. Jackson (also Model Penal Code and most states) à Substantial step – clear, definitive actions toward the successful commission of a crime. o California: People v. Gibson à Overt act – a clear step taken toward the commission of a crime. o No Jurisdiction Punish: à Mere preparation – minimal, preliminary steps are taken to engage in crime. à No action – defendant intends to commit a crime but has taken no steps toward its completion. This would be the same as a thought crime. o Cases that distinguish mere preparation from other acts à People v. Paluch (1966) Distinguished mere preparation and acts that amount to substantial steps toward a complete crime. à People v. Gibson (1949) 94 Cal. App. 2D 468. Defines overt act: Overt acts are sufficient when they constitute a direct movement towards consummation which was prevented by an agency inhibitive of the offense. à People v. Rizzo, 246 N.Y. 334 (1927) § Facts: Rizzo with three other planned to Rob Charles Rao of payroll money. Rizzo was spotter and driver. Drove around and never spotted Rao. § Procedure: Charged and convicted of attempted robbery.  § Issue: Do the facts constitute the crime of attempted robbery in the first degree? (i.e. is the actus reus met). § ROL: NY Penal code on attempt. Court synthesized prior cases into a workable rule. Acts must be “dangerously near” to the offense. Court looked to robbery and examined fact to see if acts came dangerously near. § Holding: No attempt to Rob Rao could be made until he came into sight. § Disp: Reversed and remanded for a new trial. California standard § California Penal Code 664: Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration. § Overt Act standard. Ex parte Floyd (1908) 7 Cal. App. 588 Defendant allegedly attempted to forge labels for Cigars. Went to printer for 50,000 tickets for cigars. Printer never authorized to have any such tickets printed. § Holding: An attempt to commit a crime is an endeavor carried beyond mere preparation but falling short of execution of the ultimate design. It is an act immediately and directly tending to the execution of the principal crime and committed by the prisoner under such circumstances that he had the power of carrying his intention into execution, and would have done so but for some intervening cause. Defenses (Attempt) Abandonment/ Renunciation § Defendants must: 1. Voluntarily abandon the criminal scheme; and 2. in most jurisdictions, take steps to ensure that the planned crime would not happen. à Commonwealth v. McCloskey (1975) Defendant was charged with an attempted escape from prison. He climbed a wall inside the prison and had tripped a silent alarm. Guards found a laundry bag filled with clothes and cut barbed wire. Several hours later he approached guards and told them he changed his mind. Court found that he had abandoned his criminal attempt. Impossibility § Legal impossibility may be a defense if the target offense is not actually illegal; legal impossibility defense are rare. § Examples: 1. Attempting to possess a substance that is not illegal.  2. Attempting to engage in prostitution in a jurisdiction where prostitution is legal. 3. An Ex Post Facto offense. à People v. Dlugash (1977) § Facts: Dlugash, Mike Geller, and Joe Bush had been drinking at Geller’s apartment. Geller had been letting Bush stay at the apartment and demanded rent money several times during the evening. Instead Bush shot Geller three times with a.38 caliber pistol hitting once in heart and lung once in the other lung. Between two and five minutes later Dlugash shot Geller in the head multiple times with a.25 caliber pistol. Defendant testified that by the time he fired the shots “it looked like Mike Geller was already dead”. Expert witness testified that Geller could have died very quickly from the chest wounds. § Procedure: Defendant was indicted for murder and found guilty. He moved to set aside the verdict on the basis that he was not the cause of Geller’s death. In the defendant’s first appeal the conviction was overturned. The state then appealed to the high court. § Issue: Whether the facts were sufficient to sustain a murder conviction. § ROL: Man dies but once whatever shooting at a corpse may be it is not homicide. However, attempted murder is a necessarily included offense to murder may be found even if the victim is already dead, if the defendant believed he were alive at the time. § Holding: There were not sufficient facts for murder but the court relied on the jury’s finding that the defendant believed Geller was alive at the time and found him guilty of attempted murder. § Dispo: The court modified the murder conviction to the necessarily offense of attempted murder. Dlugash provides the rule that factual impossibility is generally not a defense to attempt § If the facts were as the defendant perceived them to be, a crime would have taken place at the time of the attempt, the defendant could be found guilty even though it was impossible to complete the crime. However legal impossibility may be a defense to attempt. § People v. Jaffe, 185 N.Y. 497 (1906) The Defendant was charged with receiving stolen goods after he bought 20 yards of cloth for 25 cents a yard believing the cloth to be stolen. However, the cloth was not actually stolen property. The defendant was convicted with attempt to receive stolen property.  § The court held: If all which an accused person intends to do would, if done, constitute no crime, it cannot be a crime to attempt to do with the same purpose a part of the thing intended. Defense Lawyering Reasonable Doubt v. Affirmative Defenses Reasonable Doubt – prime instrument for reducing the risk of convictions resting on factual error. § None (in terms of guilt or innocence). Its not the role of the defense attorney to prove the client innocent. The defense may rely solely on cross-examination of the prosecution’s case (reasonable doubt) defense. § Practically speaking that is a dangerous strategy. § The defense should carefully consider all possible defenses* § If the defendant raises an affirmative defense, then it is their burden to prove the elements of that defense. § The burden of proof is established by either case or statutory law on the defense. Typically, a “preponderance.” Affirmative Defenses o Typically defined by statute (although there are a few surviving common law defenses). o Elements of defense must be satisfied o Burden of Proof has two components § Burden of Production (producing evidence) § Burden of Persuasion o Typically, both burdens are on the defense but not always. Self-Defense – a person may use a reasonable amount of force, even deadly force to protect themselves. o Typical elements: 1. Reasonable fear 2. An imminent attack, and 3. A proportionate amount of force o General Principles: § Is a variety of necessity  § A person who uses more force than necessary (disproportionate force) may not claim self-defense § In that case an imperfect defense of provocation may be used. o In CA: 1. The defendant reasonably believed that he/she/ or someone else was in imminent danger of suffering bodily injury; 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND 3. The defendant used no more force than was reasonably necessary to defend against that danger. à People v. Goetz, 68 NY2d 96 (1986) § Facts: On Dec. 22, 1984, four youths boarded the headed south to lower Manhattan riding together in the rear portion. Two of them had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines. o Defendant Bernhard Goetz boarded the train and sat down toward the rear section of the same car. Goetz carried a concealed, unlicensed pistol loaded with five rounds. o It appears from the evidence before the Grand Jury one of the youths, Canty, approached Goetz, possibly with Allen beside him, and stated “give me five dollars.” Neither Canty nor any of the other youths displayed a weapon. o Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur’s arm and into his left side; the fourth was fired at Cabey but missed. Goetz briefly surveyed the scene around him then fired another shot at Cabey hitting him in the side and severing his spinal cord. o the conductor entered the car and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat. Two women who had apparently taken cover, also lying on the floor. Goetz told the conductor that the four youths had tried to rob him. o While the conductor aided the injured, Goetz jumped onto the tracks and fled. Police arrived shortly thereafter. Ramseur and Canty, initially listed in critical condition, recovered. Cabey remains paralyzed, and has suffered some degree of brain damage. o On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire and confessed to intent to kill all four youths in graphic detail.  § Procedure: The Grand Jury indicted defendant for assault and attempted murder for the shooting. The trial court dismissed the attempt murder charge and the prosecutor’s appealed that decision. § Issue: Whether self-defense requires a subjective or objective standard. § ROL: The court considered New York’s self-defense law and the language of section 35.15: A person may use force on another when he reasonably believes that such to be necessary to defend himself or another from a reasonable belief of imminent use of force. § Holding: The trial court’s view that the need for self-defense be reasonable to the defendant was a erroneous. That interpretation defied the ordinary meaning of the term “reasonably” and would allow a jury to acquit a defendant based on the defendant’s belief force was necessary regardless of how objectively reasonable that belief was. § Dispo: The court re-instated the charges against the defendant. o Epilogue: After the case was reinstated, the jury acquitted Goetz of all counts except carrying a concealed weapon. For that he was sentenced to a year in county jail with the possibility of release after 60 days. After the criminal case, Cabey successfully sued Goetz and was awarded $43 million in damages but Goetz filed bankruptcy and never paid any money toward the judgment. à State v. Norman, 89 N.C. App. 384 (1988) § Facts: Judy and JT Norman had been in an abusive marriage for 25 years. After five years of marriage JT had become alcoholic and began regularly beating Judy with increasing brutality and sadism. The couple had four kids together. Judy had tried to leave twice and was severely beaten in response. On June 12, 1985, after a day of abuse, Judy went to her mother’s got a.25 automatic pistol. She returned to the house, loaded the gun, and shot and killed JT while he was sleeping. § Procedure: Appeal of a voluntary manslaughter conviction. § Issue: Whether Norman was entitled to a jury instruction on a “perfect self- defense,” given her claims and evidence presented that she suffered from battered wife syndrome, believed that she could not escape her marriage, and received daily life-threatening abuse. § ROL: North Carolina Self Defense Statute. Has both objective and subjective elements. § Holding: We hold that the evidence was sufficient to submit an issue of perfect self-defense to the jury. à State v. Kelly, 478 A.2d 364 (NJ 1984) – l  § Issue: whether expert testimony that Kelly was suffering from battered woman’s syndrome at the time of the stabbing of her husband was relevant to her state of mind. Stand Your Ground Laws § About half the states impose a duty to retreat before using deadly force. § Duty to Retreat: A person has a duty to retreat and must avoid using deadly force if the person do so safely. § The other half of states either do not impose a duty to retreat or have specific “stand your ground laws” that allow self-defense claims even where the person had a safe escape. à State v. Abbott, 174 A.2d. 881 (N.J. 1961) (Duty to retreat) § The issue was whether the trial court properly instructed the jury about the subject of retreat. In the English common law, the duty to retreat could be described as a person who could use deadly force in self-defense only after exhausting every chance to flee when the person’s back was to the wall. The duty to retreat is modified in states with SYG laws by removing the requirement to retreat before using self-defense. Necessity Defense § The duress defense is usually raised when an individual commits a criminal act because someone is threatening to seriously injure or kill him or her if she does not do it. § The defense of necessity (also called the choice of evils) is raised when an individual commits what would otherwise be a considered crime because acting lawfully under the circumstances would cause greater harm. California Necessity Elements 1. Act to prevent a significant bodily harm or evil; 2. No adequate legal alternative; 3. Act did not create a greater danger than the one avoided (balance of harm); 4. Actual belief that the act was necessary to prevent the threatened harm or evil; 5. A reasonable person would agree under the circumstances; 6. The defendant did not substantially contribute to the emergency. à United States v. Schoon § The four elements that the defendants needed to demonstrate were as follows: (1) they faced a choice between evils and selected the lesser evil; (2) they acted to prevent imminent harm; (3) they reasonably anticipated a direct causal relationship between their actions and the harm they sought to prevent; and (4) they had no legal alternatives to violating the law. The Court denied the necessity defense for the following reasons: (1) there was a lack of requisite immediacy; (2) the actions taken would not effectively address the evil; and (3) other legal alternatives were available.