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Tutor: Dominic DeMarco Email: [email protected] Meeting Time: Fridays, LH2, 10:00-11:00 a.m. Office Hours: Library First Floor: Thursdays 2:00 – 3:30 p.m., Saturdays, 10 a.m. – Noon, and by email and appointment Criminal Law Handout #2 Thursday, September 19, 2019 This class covers: Class #5 a...
Tutor: Dominic DeMarco Email: [email protected] Meeting Time: Fridays, LH2, 10:00-11:00 a.m. Office Hours: Library First Floor: Thursdays 2:00 – 3:30 p.m., Saturdays, 10 a.m. – Noon, and by email and appointment Criminal Law Handout #2 Thursday, September 19, 2019 This class covers: Class #5 and #6: Reckless-Intentional Distinction in Homicide Ch. 2A, p. 52-72, People v. Watson Specific and General Intent, Ch. 2B, 73-108, People v. Whitfield Reckless-Intentional Distinction in Homicide Second-Degree Murder and Involuntary Manslaughter Legal Terms to Know Express/Implied Malice Premeditated Deliberate Willful Knowing Reckless Grossly Negligent Negligent MPC § 210.4 Cal. Penal Code § 654 Probable Cause Specific/General Intent Voluntary Intoxication Mens Rea Procedural Terms to Know De Novo Deference Interlocutory Appeal Cases to Know People v. Watson People v. Whitfield Creditor/Debtor scenario In Re Williamson People v. Fuller People v. Superior Court (Caudie) People v. Sanchez People v. Hood People v. Rocha Montana v. Egelhoff Brief for People v. Watson Facts: Watson drove to bar, got drunk, drove home. On the way home, he ran a red light and narrowly missed a collision, then did get into a collision at another intersection and killed two people. B.A.C.= 0.23, speed = 84 or 50-60 (limit was 35). Henke testified of lower speed and green light. Procedure: State: California Preliminary hearing found probable cause for manslaughter, not second-degree murder. Prosecution put murder in the information anyway. Watson did a motion to dismiss, judge granted it. Prosecutor appeals the dismissal of the charges (interlocutory appeal). The appellate court affirmed the trial court’s dismissal of the murder charge. The prosecutors appeal again up to the high court. Holding: Majority (Justice Richardson): the appellate court’s affirming of the trial court’s dismissal of the murder charge and reinstated those charges. Dissent (Justice Bird): agreed with trial court’s dismissal. Reasoning: Majority (Judge Richardson): Manslaughter doesn’t preclude murder. Gross negligence doesn’t include malice. Facts imply malice (drove to bar knowing he’d drink and drive later) (consciously disregarded safety. Dissent (Judge Bird): Majority applied the wrong legal standard; facts were disputed so the appellate court should defer to the trial court. The majority looked at the case de novo. It is not a dangerous or conscious disregard to speed a little through a green light when no one’s around. Brakes showed that he wanted to avoid danger. The majority’s standard would be that all drunk driving killings are murder, which is bad. So you know the basics... Let’s get into more detail! People v. Watson Facts: Facts are on pages 52-53 Issue for Review: Distinguish between Murder and Involuntary Manslaughter (implied malice or gross negligence) Implied malice and gross negligence are similar, but differ on the of the risk of harm. Charges: Involuntary Manslaughter While Intoxicated [Cal. Pen. Code §192] form of involuntary manslaughter – “In the driving of a vehicle – in the commission of an unlawful act, not amounting to felony, with gross negligence OR in the commission of a lawful act which might produce death, in an unlawful manner, with gross negligence. Elements Unlawful killing Of a human being Without malice Implied Malice Murder [Cal. Pen. Code §187(a)] Elements Unlawful killing Of human or fetus With malice aforethought Procedure At the preliminary hearing, magistrate judge for involuntary manslaughter (vehicular homicide), but not for second-degree murder (because of insufficient evidence to find “implied malice”). Prosecutor includes second-degree murder charges in the indictment paper against Watson, despite magistrate’s ruling. Trial court grants Watson’s motion to dismiss the second-degree murder charges the magistrate rejected. Prosecutor appeals that decision. This means that the case gone to trial yet (Interlocutory appeal) Why can the Prosecutor do this? Majority (Justice Richardson) The CA Supreme Court looks at the Legislative History of the statutes under which Watson was charged to determine how to apply them to vehicular homicide. Since the two crimes contemplate different kinds of , the Williamson rule would NOT preclude a second-degree murder charge. ****Williamson rule is important Requisite Mental State for Vehicular Manslaughter 1935 Statute – required “mere negligence” 1941 Statute – required “willful indifference to, or reckless disregard for, the safety of others.” In 1941, defendant must have been of the risk involved. Legislature speedily rejected subjective-recklessness standard and instituted a “gross negligence” standard for current manslaughter statute. Gross Negligence Objective test: If reasonable person would have been aware of the risk, then defendant is presumed to be aware of risk. (exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.) Requisite Mental State for Implied Malice Murder Elements: When a person Does an act, the natural consequences of which are dangerous to life; Does the act deliberately and knows that his conduct endangers the lives of others; Does the act with conscious disregard for life. Another way to say it: Implied malice is when defendant does an act with a that it will result in death and does it with a base antisocial motive and wanton disregard for human life. Malice = broad term encompassing killings done (express) or (implied). For all malice, Defendant must the risk involved. An act that is merely grossly negligent is involuntary manslaughter. Conscious Disregard for Human Life Implied malice require awareness of life-threatening risk to actual victim, but to lives of others, generally (People v. Albright) Majority’s Conclusion: There is rational ground for concluding that Watson’s conduct was sufficiently wanton to hold him to second-degree murder charge. (implied malice). Why? He drove himself to the bar and got wasted, so he must have known he had to drive home. He drove extremely fast and dangerously through city streets. Extensive skids marks show how recklessly Watson drove. Therefore, it may be presumed/imputed that Watson of the hazards of driving while intoxicated Note: The majority is not saying that the prosecution will win, Justice Richardson is just giving them a chance to prove it. Remember, probable cause is an easy hurdle to cross. “We do not suggest that the foregoing facts conclusively demonstrate implied malice, or that the evidence necessarily is sufficient to convict defendant of second-degree murder. On the contrary, it may be difficult for the prosecution to carry its burden of establishing implied malice to the moral certainty necessary for a conviction.” Standard of Review Mixed questions of law and fact, and pure questions of law are given no deference by the appellate court. The appellate court must show deference to the trial court regarding pure factual questions. Appellate court will not address factual disputes resolved at trial court. This means: If the facts are in dispute, the appellate court defers to the trial court (master of the facts) If the facts are not in dispute, the appellate court reviews de novo (the only questions left are legal ones, and appellate courts are masters of law). Dissent (Chief Justice Bird) Argues that the Majority rewrites the law of implied malice and makes it a virtual certainty that anyone who goes out, has a few drinks, and gets into a deadly accident may be charged with murder In order to achieve its result, Bird says the Majority: Ignores the facts. Applies an improper legal standard to reverse the Magistrate and Superior Court’s dismissal of second-degree murder charges. Bird argues that Majority ignores Henke’s testimony that was presented at the preliminary hearing. Henke said Watson was going 55-60 mph through a green light when the fatal collision occurred. Prosecutor argues that Henke is unreliable and perjured himself by offering two officers’ testimony that Henke may have arrived later and therefore was lying about being a witness. P offered expert witness to argue that Watson had to be going faster (70-80 mph) than what Henke said based on skid marks. Bird says that the Majority draws an impermissible conclusion: Majority takes for granted that Henke was not credible. She says this is a disputed effect, so the court must defer! Bird argues that the Court should defer Magistrate’s finding of PC for vehicular manslaughter – Magistrate weighs evidence, resolves any factual conflicts, and determines the credibility of witnesses. Here, the Magistrate did not find probable cause for second-degree Implied-Malice Murder. Majority claims they are only reviewing undisputed facts… BUT, Bird says, based on the disputed facts and Henke’s testimony, the Court cannot find that Watson committed an act likely to kill, because the act of speeding through a green light was dangerous, but not likely to kill another. “When a superior or appellate court reviews a magistrate’s determination that probable cause did not exist, the court should resolve all conflicts and draw all reasonable inferences in the favor of the judgment below.” Here, any inferences drawn should be in favor of the magistrate’s determination that probable cause for second-degree murder was lacking (only reversible if plainly erroneous) This includes the fact that Watson had a green light and was driving 55-60 mph. The fact that Watson drove under the influence of alcohol made his driving more dangerous, but the court should not promulgate a rule that driving drunk is an act “likely to kill” because a lot of people drive home intoxicated and get home without an accident despite their intoxication. But, the Majority holds as a matter of law that Watson “knew” that he would have to drive his car and willfully drink alcohol until he was under its influence. Bird argues this meager evidence does NOT justify an inference that by drinking alcohol, Watson had an extremely reckless state of mind (conscious disregard for life) at the time of the accident. Do we really know that Watson planned to get drunk based on the fact that several hours earlier he drove to the bar? He could have set out to drink without getting drunk Therefore, the elements of implied malice have not been established because… Speeding through a green light is NOT an act likely to kill, nor was it done intentionally with conscious disregard for life; And the fact that Watson drove to the bar earlier in the night is of little probative value in determining his state of mind later. Note: Even though Justice Bird is persuasive, remember that she was not the majority opinion. Double Jeopardy/Lesser Included Offenses (LIOs) Offenses are the same if considered too elementally similar to be treated differently. Two offenses are the same if the greater offense cannot be committed without also committing the lesser offense (LIO). In such cases, a defendant could not be convicted or punished for both the greater offense and the LIO (a jury could not listen to their instructions and return convictions for both, but the judge would only enter one for the greater offense). Constitutional ban on double jeopardy prevents multiple trials (following conviction, acquittal, or certain mistrials) or punishments for the same offense. Examples: Assault is a LIO of Murder (murder elementally includes an assault) Assault and larceny are LIOs of Robbery. Involuntary Manslaughter is an LIO of Murder. Murder requires malice (extremely reckless or intentional killing); Involuntary Manslaughter requires no malice. Cannot commit an intentional or killing without also committing a grossly negligent/ordinarily reckless killing. Non-examples: Assault w/ Deadly Weapon is not LIO of murder. Why? Use of deadly weapon is not an element of murder; you can commit murder without committing Assault w/ Deadly Weapon. This same reasoning is why vehicular manslaughter isn’t an LIO of murder (don’t need to be driving to kill someone) People v. Sanchez CA Supreme Court upheld defendant’s dual conviction for second-degree murder and gross vehicular manslaughter, arising out of the same accident, because manslaughter requires proof of elements (driving AND drunkenness) that are distinct from murder. Accordingly, Gross Vehicular Manslaughter is not an LIO of murder. Although, ordinary manslaughter, vehicular manslaughter, and gross vehicular manslaughter while intoxicated are all same offense for purposes of Double Jeopardy. Note: Though Sanchez would allow Watson to be tried, convicted, and sentenced on four counts of homicide arising out of two deaths, that outcome is by Cal. Penal Code §654(a) Strict Liability Offenses Not all crimes require identical proof – some minor crimes (strict liability) require proof only that the act was committed. Excuses of accident, intoxication, and mistake are not allowed to excuse culpability for strict liability offenses. Speeding is the easiest example to remember a strict liability crime: you don’t have to hurt anyone to be in trouble. General Intent v. Specific Intent General Intent (GI) – GI offenses have or consequence contemplated, no temporal division between blunt action and its consequence. Specific Intent (SI) – For SI offenses, defendant also has intent to do some further act or achieve some further consequence. Horizontal (Temporal) Specific Intent – One act now (entering building), done with specific intent of accomplishing some other act in the immediate future (stealing). What crime is this SI example referring to? Examples of Horizontal Specific Intent Larceny (Theft) Trespassory Taking Of property Of another (now) With SI to permanently deprive (later) Conspiracy Agreement between 2 or more people (now) With SI to commit crime (later) Attempt Direct, but ineffectual, act performed now SI for act to succeed later Premeditated & Deliberate 1st Degree Murder Thinking about the planning, motive, and manner of killing (now) Acting with intention to kill another (later) Express Malice 2nd Degree Murder Act done now With an intention to cause the death of the victim soon after SI Crimes include: attempt, burglary, conspiracy, solicitation, premeditated & deliberate & other expressly malicious murder, all types of theft (robbery, extortion, bribery, embezzlement, larceny, fraud), civil rights offenses, and underlying/trigger offense for felony murder. Note: Crimes of do not fit into Horizontal SI because they are not directed at all. (actor is indifferent to result) This is why second-degree implied malice murder and involuntary manslaughter are crimes. Whether charged with specific- or general-intent crimes, defendants try to excuse their actions by claiming accident, mistake, provocation, duress, or intoxication, or justify their actions claiming self-defense. Intoxication may wrongfulness of an action, but the new approach is to treat the offender, not just the offense. The law began to recognize the limits that mental illness and intoxication place on responsibility which lead to recognition of (1) insanity, (2) diminished capacity, (3) and intoxication as defenses that Ds could raise to avoid or reduce criminal responsibility. BUT, this created a problem because alcohol often creates violence. So, the availability of intoxication as a defense paved the way for an undesirably high number of acquittals in where the defendant’s own actions put him in a position where “he would be more prone to uncivilized acts, but put him in a position to excuse those acts as well.” Brief for People v. Whitfield Facts: Whitfield had three convictions for driving under influence of alcohol. Day of crash, drank and picked his kids up, dropped them off, drank (still while driving), passed out from alcohol, crashed, and killed one person. 1:00pm, 0.27 B.A.C. Procedure: State: California At trial, Whitfield was convicted of second-degree murder. Whitfield appealed jury instructions. Appellate court affirmed. Defendant appealed again to the high court. Holding: Majority (Justice George): affirmed the appellate court’s affirming of the conviction Dissent (Justice Mosk): would have affirmed, but for different reasons Reasoning: Majority (Justice George): Trial court erred in Whitfield’s favor with the jury instructions (they let the jury consider intoxication when deciding malice). Implied malice is specific intent crime. Voluntary intoxication wouldn’t acquit Whitfield, just reduce his offense. Gross negligence is objective, and implied malice is subjective. Dissent (Justice Mosk): Express malice is specific intent crime. Implied malice is general intent crime. Voluntary intoxication gives drunk drivers an excuse. Legislative history got rid of diminished capacity. Implied malice is not goal-oriented like express malice. After: Legislature clarified statute and agreed with Mosk. So you know the basics... Let’s get into more detail! People v. Whitfield Facts: Facts are on pages 77-79 Issue Whether evidence of voluntary intoxication is admissible in a 2nd Degree Murder prosecution when the prosecutor seeks to establish malice aforethought on an implied-malice theory. i.e., When the prosecutor seeks to prove that defendant acted with knowledge of the danger to human life and in conscious disregard of human life. Defendant’s Argument Whitfield wants to argue that he couldn’t have implied malice because he was at time of crash. Whitfield does not say he was not drunk – Whitfield argues he was at time of crash than when they took his blood two hours later. Whitfield’s expert says BAC between .09% and .25% impairs the ability to make critical judgments, predict the effects of one’s actions, and memory. Expert also says BAC over .25% can make person “stuporous and lose consciousness.” Whitfield argues that a drunk person could be capable of operating a motor vehicle even though they are incapable of conscious decision-making. Prosecutor’s Argument Prosecutor says Whitfield couldn’t have been that drunk based on how much beer he told police he drank. Prosecutor’s expert says that the amount of alcohol Whitfield admitted to consuming could not produce a BAC of .24% The Trial Court instructed the jury on specific intent and allowed them to consider the degree of Whitfield’s intoxication to determine whether he had the required mental state. For murder, there must exist union of act and malice in perpetrator’s mind. Mental States Malice Aforethought (CALJIC §8.10) “Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder – Malice may be express or implied” Express Malice Manifestation of intent to unlawfully kill human. Implied Malice Killing resulted from an intentional act The natural consequences of the act are dangerous to human life The act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. To convict a defendant of second-degree murder, you must examine his state of mind at the time of the act 2nd Degree Murder = Implied Malice When person knows that his conduct endangers the life of another, and nonetheless acts deliberately with conscious indifference to the consequences (death of another). Depends on a determination that the defendant the risk involved. Gross Vehicular Manslaughter = Gross Negligence Exercise so slight a degree of care as to of conscious indifference to the consequences. If a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. Implied malice contemplates a subjective awareness of a than does gross negligence, and a wantonness which is absent in gross negligence. Procedure Trial Court Refused to give Whitfield’s jury instruction that if they found that Whitfield killed (1) without intent to kill and (2) without malice aforethought, while unconscious as a result of voluntary intoxication, then the crime is involuntary manslaughter. Jury found Whitfield guilty of second-degree murder, and he was sentenced to 18 years to life. Appellate Court Whitfield argued that the trial court erred by refusing to instruct the jury on unconsciousness. Affirmed the conviction because it said voluntary intoxication is only defense to SI crimes, and second degree implied malice is not an SI crime. Affirmed trial court’s refusal to jury instruction on unconsciousness. Court of Appeal said the trial court erred in Whitfield’s favor by allowing the jury to consider Whitfield’s voluntary intoxication in deciding whether he harbored implied malice. Supreme Court Granted review to resolve conflict on whether voluntary intoxication can be used to knock out Specific Intent (i.e., ) Concludes that the Court of Appeal misinterpreted §22(b) when it ruled that voluntary intoxication is inadmissible to prove absence of implied malice; CA Supreme Court says that implied-malice murder requires specific intent, therefore evidence of voluntary intoxication can be used to prove the absence of implied-malice for second-degree murder. Cal Penal Code § 22(b) — “Evidence of voluntary intoxication is admissible solely on the issue of whether defendant actually formed a required specific intent, premeditated, and deliberated, or harbored malice aforethought, when specific intent crime is charged.” The CA Supreme Court says under the statute “malice aforethought” includes both express and implied malice. The Court says the Legislature could have easily written “express malice aforethought” It is trying to distinguish between GI and SI crimes. Says that the Legislature prohibited the admission of evidence to negate the capacity of Whitfield to form any mental state by abolishing the concept of . At the same time, it explicitly retained the existing rule that evidence of voluntary intoxication is admissible to prove whether D a specific mental state. Voluntary Intoxication as Defense Voluntary intoxication is inadmissible to negate a general intent crime. It is a defense to SI, but not GI crimes. Distinction between SI and GI is a device to permit evidence of intoxication to , but not to admit evidence of intoxication if it would result in total acquittal. Majority argues that its ruling won’t acquit people guilty of murder, but allow lesser offense to be charged. Note: The Majority uses this case as a tool of social engineering: as long as a charge remains, then we’re showing him compassion while simultaneously holding him accountable. Being drunk doesn’t really get him home free. If you’re too drunk to form the intent to steal, you’d still be guilty of trespassory taking (i.e., you are off the hook for theft but you’re still on the hook for trespass; you’re not going home) People v. Hood Whether Hood’s voluntary intoxication could be considered in determining whether they committed . “Distinction between GI and SI is judicial response to intoxicated offender.” General rule of SI and GI should not be applied mechanically because assault could equally be a general-intent or specific-intent crime. Majority’s Conclusion (Justice George) Trial court did not err by allowing jury to consider voluntary intoxication for implied malice. Trial court properly refused Whitfield’s unconsciousness jury instruction because malice could have been formed before unconsciousness. By finding Whitfield guilty of second-degree murder rather than gross vehicular manslaughter, the jury concluded Whitfield actually appreciated the risk posed by his conduct and acted with conscious disregard for life. The jury reasonably inferred from _beer cans in the car_that Whitfield continued to drink while driving, and it reasonably concluded that that constituted awareness and disregard of the risk to others’ lives. Dissent (Justice Mosk) Concurs that Whitfield is guilty, but the Majority’s opinion gives wasted drivers an unanticipated defense to murder based on unconsciousness. It also creates huge roadblock to prosecutor trying to punish wasted drivers who kill innocent victims. He says second-degree murder based on implied malice is GI crime. Argues that §22 is not ambiguous and only includes express malice. Majority is Overruled CA State Legislature overruled Whitfield by statute in 1995: voluntary intoxication is no longer relevant to murder based on implied malice. PRACTICE: Assault with intent to rape: SI intent: voluntary intoxication is an excuse Assault with a deadly weapon: G intent: voluntary intoxication is not an excuse Conspiracy: S intent: voluntary intoxication is an excuse Attempted kidnapping: S intent: voluntary intoxication is an excuse Rape: G intent: voluntary intoxication not an excuse 10 years after Whitfield: second-degree implied malice murder: G intent: voluntary intoxication is not an excuse Important Note: Justice George’s Majority opinion in Whitfield cited Watson. He used Watson to further his point that your conscious disregard doesn’t depend exclusively on the defendant’s state of mind at the time of the accident. This is a great chance for you to compare/contrast Watson and Whitfield. **Take note of Whitfield’s Note 5 on p.106-108. VERY IMPORTANT CHART! Intentional > Not Intentional > Unintentional No incidental because the outcome didn’t depart from your plan. Foreseen Incidental Unforeseen Incidental, Accident 2 types: The thing you thought would happen, did happen Inexcusable Accident > Excusable Accident She meant to. She knew. She should have known She should not have known Conscious disregard of a substantial risk. 2 ways to tell if she did: Could have been avoided with ordinary care (foreseeable) Could only have been avoided with extraordinary care (unforeseeable) Actually knows that her conduct endangers the life of another > Exercised so slight a degree of care to raise presumption of conscious indifference to the consequences: knowledge of the risk is imputed to her extreme recklessness, wantonness Reckless, gross/criminal/culpable negligence Civil/ordinary negligence Subjective. Also, there’s a higher degree of risk Objective: reasonable person in her position would have been aware of risk Ex. = first-degree murder, second-degree express malice murder Ex. = second-degree implied malice murder Ex. = involuntary manslaughter Ex. = negligent homicide (MPC 210.4) No crime Watson, Whitfield Decina, Flippo Cogdon Review: Helpful Hints: Professor Yeager values careful reading, of the textbook and of each exam question. Before you cross out an answer choice, make sure you can articulate why it’s wrong. Don’t stress about the exam itself. Focus on mastering the material. Try to create your own tricky multiple-choice questions. This will help you see what the tricky areas are and if you really understand them. These are 3 real questions from Professor Yeager’s 2015 exam: 1. Jackson v. Virginia (1979) announced a standard for a) appellate review of defendant’s claims of factual insufficiency of the evidence; b) a police officer’s duty to rescue members of the public; c) determining the scope of the doctor-patient privilege; d) the review of the propriety of charges on undisputed facts; e) the review of the propriety of charges on disputed facts. 2. A creditor knows that demanding a just debt will ruin his debtor but demands payment anyway. When the debtor is as a result ruined, we say that the creditor has ruined the debtor a) intentionally b) accidentally c) recklessly d) unintentionally e) unforeseeably 3. Involuntary manslaughter requires proof of a) culpable negligence b) gross negligence c) criminal negligence d) ordinary recklessness e) all of the above