Criminal Law Outline PDF

**Introduction** (textbook 20-53) [Trial & Jury] A. Sources of Law (each state has own criminal laws, judges interpret ambiguities and settle disputes, but do not create new laws.) a. U.S. Code b. California Penal Code B. Stages of Prosecution (sentence first, trial after) c. Investigation d. Arrest e. Formal Charging f. Trial or Plea g. Sentence h. Appeal C. Fact finders (judge or jury) must find that Defendant is guilty "beyond a reasonable doubt" = approx. 92-94% certainty i. Burden on the prosecution to put forth evidence that supports j. Burden on defense to show that another possibility casts doubt. (ex. affirmative defenses, "Yes to this... but for this reason") i. *State v. Owens:* Conviction on circumstantial evidence alone is not enough to be sustained unless circumstances are inconsistent with a reasonable hypothesis of innocence. Here, circumstantial evidence suggests that driving occurred previously so he can be convicted (origin of police call for suspicious vehicle and unlikely that appellant would consume alcohol and bring empty cans with him.) [Punishment] A. Goal of Punishment: a. Utilitarian (forward looking purpose) i. Deterrence: punish to deter (prevent, disincentivize, etc) future law-breaking. Either... 1. Specific: directed towards particular committing defendant 2. General: directed towards society or general defendants ii. Incapacitation: physically prevent offense (either jail or probation) iii. Rehabilitation: treatment or education b. Deontological ("just desserts") iv. Retribution: defendant deserves to be punished, regardless of benefit or harm c. Expressivist (symbolic value to punishment, teaching function, consistent with deontological) B. U.S.C § 3553: punishments have to take into consideration what happened and the person's criminal history, need for the sentence impose to be an adequate deterrence. d. *USA v. Brewer:* Court does not think that sentencing will act as general deterrence as white collar crimes repeatedly happen, but Mr's age and general health weigh significantly as his rehabilitation will cost govt. lots of money and the incapacitation will be achieved by conditions of probation. e. *USA v. Reffit:* D is sentenced to 7.25 years given his role as "leader," his continued effort to overthrow US govt, his lack of remorse and his prior convictions. f. *USA v. Madoff:* D. requested a lesser sentence as he turned himself in and consented to forfeit all of his money, claiming the reputational losses were significant as deterrence and he shouldn't spend the rest of his life in prison. Court said that sentencing needs to be the strongest possible message to act as a general deterrence given scope of the crimes but Madoff's life expectancy was 13 years, so the sentencing of 150 years was largely symbolic as an act to restore trust in financial institutions. **Elements of a Crime (**textbook 141-232) [Elements:] every fact that must be proven beyond a reasonable doubt A. Material Elements: every fact relating to harm of the offense, the purpose it was supposed to defend against. Each crime will require D. has some mens rea towards each material element. a. Result element: crime defined in terms of some cause/effect b. Conduct element: crime defined in terms of action c. Attendant Circumstances: every material element is not a result or conduct B. Non-material Elements: jurisdiction, timing, etc [Act Requirement:] actus reus, meaning voluntary act. A. Unconscious act: an act committed while one is unconscious is in reality no act at all. Merely a physical event or occurrence for which there can be no criminal liability. a. **M.P.C. 2.01(2):** following are not voluntary acts reflex, bodily movement during unconsciousness, conduct during hypnosis, bodily movement that is not product of effort of actor. B. Voluntarily induced unconsciousness: state of unconsciousness is voluntarily induced by alc. or drugs, that is a voluntary act. b. *State v. Utter:* D was convicted of manslaughter for stabbing his son who was heard saying "Dad, don't" and seen walking out of the apartment having been stabbed, saying "Dad stabbed me." D. testifies that he has no recollection of the event as he was drinking earlier in the day, but claims conditioned response defense as when someone comes up behind him, he attacks them (which has happened twice before.) Voluntarily induced consciousness (ex. Drunkenness) cannot be a complete defense and needs additional facts. The court agreed that it could have been provided as a defense but there was not enough substantial evidence as no one at the scene has a memory of what happened (he says he doesn't recall anything.) C. Culpable Omission: failure to act can satisfy actus reus c. Penal Law §15.10, an individual's criminal liability can be predicated on "omission," defined as a failure to perform an act for which a duty of performance is imposed by law. d. Legal duties that agree with culpable omissions: i. Contract 1. *People v. Wong:* Wongs were convicted of manslaughter as they were both full-time caretakers for an infant that lived with them and was found to be unresponsive after a lengthy crying fit. The court determined equal culpability, as one of the defendants must have violently shaken the baby and the passive defendant is equally responsible under omission theory for failing to assist. both individuals had a duty to care for the infant, but the nature of the death is not immediately or physically apparent to the other caretaker (the baby could've just appeared to be sleeping) and since it is unclear who was the causation, both convictions must be reversed. ii. Family or friends (parents, spouses) -- use cases as this determination isn't consistent iii. Statute iv. Voluntary assumption of care 2. *Commonwealth v. Pestinikas:* Defendant was found guilty of murder in 3^rd^ degree for starving Kly who was an older man with whom they entered a contract to care for and provide food, water, and shelter in exchange for \$300 a month. They forced Kly to sleep on the porch, did not feed him, prevented him from receiving care from nurses, and concealed him from his family when they asked. a. **M.P.C. 2.01(3**): omission of an offense may not be based on an omission unaccompanied by action unless 1) omission is expressly made sufficient by law OR 2) by a duty to perform the omitted act is otherwise imposed by law. Defendants had a duty to act under the contract of care so their omission was sufficient to support a conviction for criminal homicide. v. Creation of Risk D. Bystanders: do not have a duty to act but can be found culpable for not acting when 1) inference was duty or 2) they operated as an encouragement to or as protection for the perpetrator. e. *State v. Davis:* Defendant was convicted of 2^nd^ degree sexual assault for his participation in his son raping a woman while Defendant sat next to them on the bed as the act occurred. Defendant knew the victim and they had a close family relationship, but when the act was occurring he stepped out of the way and told her not to worry as the act occurred. the defendant was not a passive bystander, his actions of lying next to the victim and his familiar association with the defendant are sufficient actions to make him culpable. f. *Richmond High Case:* Cal. Penal Code § 152.3: bystanders have no duty to act, if.. victim is \< 14 years old, believed to have witness murder, rape, are related to victim, fear for their own safety, mistake of fact. E. Possession: g. **MPC 2.01(4):** possession is an act within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. h. Willful blindness: Willful blindness can be found only where it can be said the defendant actually knew, deliberate ignorance and positive knowledge are equally culpable. vi. *United States v. Jewell*: the court found it likely that D. knew about the secret compartment and purposely avoided positive knowledge to avoid responsibility in case of discovery. [Mens rea: ] A. **MPC 2.02:** when culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto. (default position is reckless). a. Purposely: if element involves nature of conduct or a result, D's conscious objective is to engage in that conduct or cause that result. i. knows result will happen and wants it to occur b. Knowingly: If element involves nature of conduct, D is aware his conduct his conduct is of that nature; if element involves result of conduct, D is aware that result is practically certain ii. acts with practical certainty, knows that they are bringing about death (near 100% sure) c. Recklessly: If element involves result, D is aware of strong possibility that result might occur and nonetheless takes the "substantial and unjustifiable" risk. iii. subjective awareness of risk that is substantial and unjustifiable iv. D. is aware of risk and it is substantial risk v. Has to be unjustified (i.e. fleeing danger, going to hospital) d. Negligently: If element involves result, D. is not aware that D is taking a substantial and unjustifiable risk, but a reasonable person would be. vi. Jury is looking to determine if reasonable person would be aware vii. Jury will put themselves in that position. viii. "gross" negligence: can sometimes be more exhaustive. B. Malice: ill will, hatred, spite, an evil intent. e. CA Malice: hatred, ill will, hostility toward another f. *Young v. State:* Defendant was found guilty of aggravated child abuse for hitting her child with telephone cord, resulting in 17 separate marks. The defendant claims she blacked out and moved for acquittal under an incorrect definition of malice acts (court used legal definition of malice as "wrongfully, intentionally, without legal justification or excuse." Rule: Actual malice means ill will, hatred, spite or evil intent. Court sided with precedent which used the defendant's definition of actual malice. C. Intent g. Purposely v. Knowingly: ix. *US v. Bailey:* Defendants were a group of inmates at a federal detention facility who were charged with escaping federal custody without permission. They claimed that they left voluntarily and **knowingly** to escape the not normal conditions of confinement that they were experiencing (frequent beatings and trash fires, guards were allowing conditions to continue, one received in adequate medical attention for seizures.) 18 U.S.C. § 751(a): requires proof that D. left federal confinement voluntarily without permission, Defendants wanted to add that confinement refers to the normal aspects of punishment so they didn't have mens rea. Here, the court found that the mens rea referred to their decision to attempt to leave and acting "knowingly" was sufficient. h. Recklessness v. Negligence: x. *State v. Olsen:* The defendant was convicted of felony manslaughter for driving a tractor and turning left into an oncoming car killing the driver. The defendant claimed "I didn't see it" but the witness testified that the incoming crash was imminent. Awareness can be established if defendant acts in a manner that indicates reckless disregard for the safety of others. Here, the state must introduce evidence that would show D. was aware of the dangerous nature of his conduct; he is **negligent** as he was unaware of the risk but should have been. i. Transferred Intent: **MPC 2.03(2)** xi. Unless (a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than it cause. xii. D shoots at A with purpose to kill A, bullet misses A and kills B. D had no purpose/knowledge about killing B. xiii. Transfers from A to B: D treated as if D had purpose to kill B. j. Willful blindness: requires 1) D must subjectively believe that there is a high probability that a fact exists and 2) D must take deliberate actions to avoid learning of the fact. xiv. *United States v. Jewell:* The defendant was convicted of possession as he had 110 pounds of marijuana found in a secret compartment in the trunk of his vehicle but claims that he was not aware that it was there. Willful blindness can be found only where it can be said the defendant **actually knew,** **deliberate ignorance and positive knowledge** are equally culpable. Here, the court found it likely that D. knew about the secret compartment and purposely avoided positive knowledge to avoid responsibility in case of discovery. D. Strict Liability: acts in which mens rea is not required. Liability without fault. k. How do we know crime is strict liability? xv. Legislative history or context says to (when bills are proposed there can be documents, legislative history can be used to understand) xvi. New crime (ex. killing a migratory bird) xvii. Light punishment (you don't want to severely punish someone with no mens rea) xviii. Hard for prosecutors to prove mens rea xix. Easy for D. to learn facts that make them guilty xx. Likely to have high number of prosecutions (can't worry about proving mens every time) xxi. Potential to cause serious harm to the public l. **M.P.C. 2.05:** No Strict Liability for crimes that result in even a day of custody. xxii. Examples: tampering with food, statutory rape, misdemeanor selling alcohol to minors, misbranding livestock, catching undersized crabs etc. m. Pros: take extra precautions to avoid breaking law, makes convictions easier. n. Cons: ordinary person can't be aware of everything, makes convictions easier. o. *Staples v. United States:* The defendant was indicted for unlawful possession of an unregistered machine gun which had been modified using M-16 parts converting it to an automatic weapon but claims he had only operated it semiautomatically and his ignorance of firing capability should shield him from criminal liability. National Firearms Act 26 USC §5801-5872: machine gun as one that automatically shoots more than one shot and makes it a crime punishable by up to 10 years in prison to possess one that is not registered but does not state the required mens rea. The court states while dangerous items place owners under obligation to inquire into compliance, the Govt. would be imposing criminal sanctions on the class of people whose mental states make their actions innocent as the majority of gun owners are lawful owners. The defendant is only liable for unregistered possession if the government proves that he knew the gun was capable of automatic firing. E. Specific v. General Intent: p. Specific: 1) proof of two level of mens rea related to conduct (intend the act and intend another act) OR 2) proof of mens connected to conduct and proof of mens rea as to result (intended act and intended result) xxiii. two levels of mens rea related to conduct and/or result. If defined by result, prove act with desire to achieve result. xxiv. Higher mens rea required (x2) xxv. Purposely q. General: anything else, only one level of mens required xxvi. lower mens rea xxvii. intentional action with no intent required for result xxviii. Knowingly, Negligently, Recklessly [Mistake: ] A. Mistake of Fact: can be a failure for prosecution to define mens rea a. Under **Common Law**: i. If specific intent mistake of fact exonerates as long as mistake was genuine (even if it's unreasonable) ii. If general intent mistake of fact exonerates ONLY IF mistake was in good faith and reasonable 1. Cannot be negligent iii. *People v. Navarro:* D. was accused of stealing wooden beams from a construction site as either the beams had been abandoned as worthless and there was no objection to his taking them OR they had substantial value and he had no right to steal them. Mistake of Fact "If no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse, unless it was based on reasonable grounds. Because theft is a specific intent crime, a mistake of fact negates the needed mens rea. Here, to convict, we must know if D himself knew it was someone else's property and was his intent to deprive someone else of that property. b. Under **M.P.C:** iv. Mistake of fact exonerates if and only if mens rea was less blameworthy than mens rea required for crime v. Test: What is mens rea required by the crime? Then what was the mens rea of the actor? vi. *People v. Sexton:* Defendant was in the parking lot looking at a gun with a friend, which he was told was empty, but went off and killed his friend. D was charged with reckless manslaughter. A belief that the gun is loaded or unloaded does not negate culpable mental state for the crime of manslaughter. Under the **MPC** approach to the mistake of fact, D must demonstrate that the mistake was reasonable, and it negated the required culpable mental state for the offense. Here, he was found to be reckless, and a mistake of fact can be considered as a defense. 2. Approach to mistake of fact does not care about specific v. general intent. If you committed reckless mistake ≠ guilty of crime that requires purpose/knowledge. c. Moral Wrong Doctrine: mistake of fact is no defense if D thought he was committing moral wrong d. Legal Wrong Doctrine: mistake of fact is defense if he thought it was legal wrong (lesser crime) B. Is a negligent mistake reasonable? e. A mistake is one that a reasonable person would not make. f. Reasonable person would have awareness. No subjective awareness of risk but a reasonable person would be aware of risk g. Reasonable person is not negligent vii. Negligent is one that reasonable person wouldn't make. C. Mistake of Law: not guilty because I misinterpreted the law is not an excuse unless... h. Law requires knowledge that conduct is illegal, and mistake affects that knowledge. Only if knowledge of illegality is required. viii. *People v. Weiss:* Under the belief that they had been deputized as N.J. secret service agents and arrest was made under the "authority of law," Defendants seized and confined Wendel in connection to the kidnapping of the Lindbergh baby. Penal Code § 1250: "person who willfully seizes... another with intent to cause him without authority of law to be confined... against his will is guilty of kidnapping." Court ruled that the mens rea attaches to "with the authority of law" as willful intent to seize a person without authority is the essential issue. Here, if they believed they were operating in good faith within the law, there could be no intent to act without the authority of law. i. D's mistake relying on official statement of the law, including invalidated statute. ix. *People v. Marrero:* D. was convicted on the mistaken belief that he could carry a weapon with legal impunity under the peace officer statute. D. claims mistake of law defense because his belief in legal conduct was founded upon an official statement of law in the statute itself. **Individual interpretation is not a mistake of law defense.** In situations where the government has unintentionally misled an individual to what is legally permissible, an individual shouldn't be punished, but if the government is not responsible for the error it is not afforded a mistake of law excuse. [Causation] A. **MPC 2.03:** a. Conduct is the cause of a result when (a) it is an antecedent but for which the result in question would not have occurred... b. When purposely or knowingly causing a particular result in an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor UNLESS i. The actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a just bearing on actor's liability or on gravity of his offense. c. When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless ii. The actual result involves same kind of injury or harm as probable result and is not too remote or accidental in its occurrence to have a just bearing on actor's liability or on the gravity of his offense. B. The link between actus reus and the harm. **Requires "but-for" and "proximate" cause:** d. Concurrence: Mens rea and actus rea must have existed at the same time e. Cause-in-fact aka "but for": Would the result have occurred without the D's actus reus? iii. If there are multiple sufficient causes 1. Substantial factor test: was actus reus substantial factor in bringing about result? a. *People v. Jennings:* Defendant was found guilty of 1^st^-degree murder of his 5-year-old son but evidence and testimony show that both parents were abusive. Autopsy claimed the main cause of death to be "combined drug toxicity" but other contributing causes were acute and chronic abuse and neglect. The defendant's act must have been a substantial factor contributing to the result of his death. If the defendant's act of torture were concurrent causes of the death, it is no defense that the conduct of some other person contributed to the death. Here, there was sufficient evidence from which a reasonable jury could have concluded that torture was at least a substantial factor. i. When conduct of 2+ persons contribute concurrently to proximate cause: "defendant's act must have been sub. Factor contributing to result rather than insignificant or merely theoretical" 2. Acceleration test: did actus reus accelerate the result? b. *Oxendine v. State:* D. was convicted of manslaughter for killing his 6 year old son from beating him after his girlfriend had committed similar acts less than 24 hours prior. State provided two theories of causation 1) a combined direct effort (between both parties) 2) An aggravation theory, but doctors could not determine which event directly caused the death as they couldn't separate the effects of injuries. Causation as antecedent but for which the result in question would not have occurred. Contribution without acceleration is not sufficient causation for manslaughter. Here court held that Doctor's testimony can't prove that 2^nd^ injury accelerated death. Causation has to hasten the death. 3. Likelihood of survival test: did D. prevent possibility of surviving? f. Proximate Cause: if result was reasonably foreseeable, defendant's actions are proximate cause. iv. If more than one potential cause, were the defendant's actions closely enough related to hold D responsible? v. Intervening actors can sever connection between D and the result 4. If there is intervening act, depends on foreseeability: c. Coincidental = breaks causal chain, unless foreseeable d. Responsive = break causal chain only if unforeseeable and abnormal vi. *State v. Smith*: The defendant was convicted of assault and involuntary manslaughter after hitting victim, Biser, on the side of the head which resulted in traumatic brain injury. Victim became apathetic and did not take necessary diabetes medication afterward which resulted in his death due, Defendant claims that while he might have been the 'but for' cause, he did not proximately cause the death because of unforeseeable events that occurred. If it is unforeseeable, a coincidence will break the chain of legal causation. Here, the failure to medicate was a response to act, that was not abnormal and unforeseeable as self-inflicted harm attributed to weakened conditions are normal occurrence so it cannot be an intervening cause. C. Rules of Thumb: recurring scenarios that get treated same way g. Coincidental/Independent Acts: inherently not foreseeable! vii. Medical recklessness or intentional bad actions of doctors viii. Victims unexpected acts of self harm ix. Extremely unusual mechanisms of harm (meteor strike, contracting rare disease) h. Responsive/Dependent Acts: break chain only if unforeseeable and abnormal! x. Medical negligence xi. Preexisting conditions xii. Victim rendered suicidal or irresponsible extreme bullying cases where victim is rendered irrational xiii. Victim tries to escape and is harmed by third party xiv. Third party (including police) responds and injured or injures (responsive/dependent) **Homicide** Intentional Murder A. Cal Penal Code § 187: "Murder is the unlawful killing of a human being... with malice aforethought" B. **MPC 210 Murder:** a. 210.0: Definitions: i. Human being means a person who has been born and is alive ii. Bodily injury means physical pain illness or any impairment of physical condition iii. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ iv. Deadly weapon means any firearm, or other weapon, device, instrument, material or substance... which in the manner it is used or intended to be used is known to be capable of producing death or serious bodily injury b. 210.1 Criminal Homicide v. Person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently causes death of another human being vi. Criminal homicide is murder, manslaughter, or negligent homicide. c. 210.2 Murder vii. Criminal homicide constitutes murder when 1. It is committed purposely or knowing OR 2. It is committed recklessly under circumstances manifesting **extreme indifference to the value of human life**. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of or an attempt to commit, or flight after committing or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. viii. Murder is a felony of first degree (but a person convicted of murder may be sentenced to death as provided in section 210.6) C. Murder = homicide done with **malice** d. "Committed when evidence shows an express or an implied intent to commit an unlawful homicide... can be show by evidence that the defendant acted with the deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof but also by evidence that the defendant acted where...all the circumstances of the killing show and abandoned and malignant heart" e. Express malice: one who **intends** to kill ix. *Taylor v. State:* The defendant was convicted of malice murder and aggravated battery when he hit the victim with his car causing death days later Police also found a yellow envelope with defendant's name on it containing various legal documents from a year long dispute but D. claims that he did not form intent to kill the victim. Crimes which are defined as requiring that the defendant intentionally cause a forbidden bad result are usually interpreted to cover one who knows that his conduct is substantially certain to cause the result whether he desires the result to occur.... Show by evidence where no considerable provocation appears and where all circumstances show a malignant heart." Evidence was sufficient to show intent to kill the victim (express malice.) f. Implied malice: acts with a blind and malignant heart, "depraved heart," is **reckless** x. Ex**.** flying airplane extremely low over a crowd, setting a fire on the front doorstep of occupied home, shooting into a train. g. **Felony murder**: if the defendant commits a felony or attempts to commit a felony, and a person dies as a result of that felony/attempt. Crime is not the murder, but the underlying felony. Felony murder acts as deterrent for people committing felonies. Death must be sufficiently direct and foreseeable result of the felony. xi. **No mens rea needed,** but action must be inherently dangerous 3. Either in the abstract (looking at elements of the offense) or in the manner of commission (look to facts of particular case) 4. "Inherently dangerous" crimes depends on jurisdiction xii. Accomplice to the felony can be guilty of the murder even if no involvement in the killing. xiii. Examples: murder manslaughter, burglary, robbery, carjacking, perjury, fraud, kidnapping, rape false imprisonment, etc xiv. **Limitations:** 5. Merger Doctrine: if the felony is assaultive, it cannot be basis for felony murder. Assaultive crimes = immediate threat of physical injury and will not count for felony murder. (person who intends to kill = assaultive action, person who is just trying to threaten fear, could be charged as action is assaultive) Prosecutors have to prove mens rea and facts of the specific case do not matter. - *People v. Sarun:* Victims are driving car, family member is allegedly a member of "Asian boys" gang, another car pulls up next to victims car and shoot into the first car. One person is killed, two are seriously wounded. Defendant admits to being passenger in the car and firing gun but that he just wanted to scare the victims." Rule: "assaultive felony involves threat of immediate violent injury... If the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive." 6. Inherently Dangerous: if the felony is not inherently dangerous it cannot be the basis for felony murder. Has to be **non-assaultive and inherently dangerous** to qualify for felony murder - *People v. Howard:* Defendant was driving stolen vehicle and flees police at 90 mph, turns off lights, eventually crashed into another car + killing driver. Was most likely on meth while driving. Inherently dangerous = driving vehicle while fleeing police, and committing 3+ outlined traffic violations. "in determining if felony is inherently dangerous.. court looks to elements of the case in the abstract, not the particular facts... then by its very nature cannot be committed without creating a substantial risk that someone will be killed." - *State v. Stewart:* Infant dies from dehydration, infant's parents fail to care for him as they were high on cocaine for three days, child was supposed to feed himself. Underlying felony: habitutal sufferer for want of food or proper care (under R.I. state law), inherently dangerous in neglecting child for long period of time. 7. In furtherance of (res gestae): death must occur in furtherance of the felony. Death must have a causal and temporal connection to the felony, including in efforts to conceal or escape the felony. Felony is over once D. has been arrested. 8. Proximate cause or agency theory: killing a 3^rd^ party is attributable to defendant (depending on state). **Proximate cause** D are proximate cause of V's death due to carrying out the felony. **Agency theory** D - *People v. Hernandez:* D and Co-D were planning to rob victim in stairwell, but V was undercover cop. Robbery escalates into gunfight and D. flees and raises gun, Police officer shoots and kills another officer. Rule: D was the but for cause, and police killing V was responsive killing. Fatal result was sufficiently direct and foreseeable, it is not abnormal that officer would respond with force. Immediate result or attenuated one is result of felonious conduct. D was the proximate cause of the victim's death. - *State v. Sophophone:* D and 3 others agree to break into house at night, police arrive and they flee, Co-D points gun at police officer and officer kills him in self defense. D charged with felony murder of Co-D, but ultimately is not found guilty. Court found that there was nothing in the statute that commanded the agency approach. Rule: theft is not inherently dangerous; burglary is non assaultive felony and inherently dangerous. D was the agent that caused the death. i. Rule of Lenity: if ambiguity in guilt, court should construe ambiguity towards the defendant. xv. California Reforms: P.C. 189(e) 9. A participant in perpetration or attempted perpetration of a felony listed in which a death occurs is liable for murder only if one of the following is proven: - Person was actual killer - Person was not actual killer, but with the intent to kill, aided, abetted, counseled commanded induced, solicited, requested or assisted the actual killer in the commission of murder in the first degree. - Person was a major participant in the underlying felony and acted with reckless indifference to human life. - This section does not apply to D. when victim is peace officer... D. Mens Rea h. Intent to kill i. Intent to inflict serious bodily injury j. Felony Murder (malice created by law): no mens rea needed xvi. **MPC 2.01** "Recklessness and indifference are presumed if the actor is engaged in... robbery rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. Presumption may be rebutted...commission of the felony is just evidence of the recklessness." k. Extreme Recklessness (aka Abandoned/depraved heart murder) xvii. **Common Law: implied malice murder** (D's behavior demonstrates an abandoned and malignant heart from which malice is implied) 10. *People v. Knoller:* implied malice only applies when acting with awareness to endanger human life (risk of serious bodily injury is not enough). D was training 100+ lb dog, who mauled V in the hallway of the apartment building, killing her. D. received letter from vet warning her of dog as liability who could attack and dog had 30+ incidents of attacks or near attacks, but D claims that she had no idea he could kill somebody. Rule: conviction for implied malice murder requires conscious awareness of risk of death. Doctrine of concurrence: it was having dogs and failing to restrain them during the time of the attack. xviii. **MPC:** Extreme indifference murder, D acts in a way that shows extreme indifference to human life. 11. *People v. Snyder:* D. accused of inducing breathing problems in her two children. Numerous hospitalizations for apnea, only happens with D as sole witness. Child dies from heart attack during one episode. D is seen in hospital calmly eating snacks during resuscitation and later goes to mobile home salesperson for help with finding a new home given no source of income. Prosecutors rely on jail house testimony to allege disability income was motive. Rule: Guilty when under circumstances when actions reflect **cruelty, brutality, or callousness, and combined with the utter indifference to life and safety of victim.** Not clear if she intended them to die, but she did not care whether grievous harm resulted from her actions. l. Negligent Homicide xix. The reckless defendant and the negligent defendant both engage in the same amount of risk taking but the difference between them is their subjective awareness of the risk. D is not subjectively aware of substantial and unjustifiable risk but a reasonable person would be. xx. TEST: 1) What did D subjectively know? 2) What did D subjectively NOT know, but a reasonable person would have known? xxi. **Common Law**: classifies ordinary, gross, and criminal negligence 12. Ordinary negligence: D is not subjectively aware of substantial and unjustifiable risk but a reasonable person would be and wouldn't behave this way. "Failure to perceive the risk constitutes a deviation from the standard of care that a reasonable person would observe in the situation." - *People v. Traughber:* D. is professional truck driver, sees obstacle in road, swerves into left lane to avoid and then swerves back into right lane when oncoming car swerves into path of truck. Rule: ordinary negligence is "failing to do what an ordinary, sensible person would have done under the conditions and circumstances then existing or doing what an ordinary sensible person would not have done..." Judge held him to standard of a reasonable truck driver, but reasonable person standard cannot be dependent on profession. D. also did not create the emergency but instead responded to it. - *State v. Williams:* Parents have infant with tooth infection, dies two weeks after contracting it. Expert says treatment in first week would have saved the child. Cheek turned blue and child stopped eating. Guilty of negligent homicide. 13. Gross/criminal negligence: D doesn't seek risk but D's behavior is very big deviation from what a reasonable person would do in these circumstances. Gross deviation from standard of care of reasonable person. "more than slight degree of negligence necessary to support a civil action." - State v. Small: D. leaves her young children home alone to go drink at a friends house, but a fire broke out from the stove and killed her daughter. Rule: Reasonable person would not leave alone at night unless it was a justified deviation (but her reasoning was to go drink) gross deviation from standard of care: reasonable person is not viewed in hindsight of action occurring but reasonable person is how person would behave in that moment. xxii. **MPC**: classifies gross negligence 14. Should be aware of substantial and unjustifiable risk, involves a gross deviation from standard of care that a reasonable person would observe in their situation. 15. Reasonable person is applicable to the actors situation but heredity, intelligence, or temperament are not applicable (ie. Would be blind, but not hot-headed.) xxiii. Reasonable person standard: courts divided E. Actus Reus: m. Act or omission (conduct) that causes death of living human being (result) xxiv. Voluntary intoxication: does not negate actus reus F. Degree: n. Determined by statute, often require premeditation and deliberation o. Default is often 2^nd^ degree -- intentional murder done with malice qualification p. [Cal P.C. 189]: all murder that is perpetrated by means of a destructive device or explosive, weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of **willful, deliberate, and premeditated killing** or that is committed in the perpetration of... arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking or any act punishable under (certain sex offenses) or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the **first degree.** xxv. All other kinds of murders are of the second degree. q. Deliberation xxvi. Was the intent to kill **formed with a cool head**? (quality of the thought) xxvii. Was it **contemplated** rather than impulsive? r. Premeditation xxviii. Was there time to think about the decision? (However short that time may be?) xxix. California: allows for instantaneous premeditation s. Ways to infer P+D? xxx. Look at actions prior to killing, D's relationship to V, nature of the killing, consider statements of D and actions after and what D. said prior/post xxxi. Voluntary intoxication: potentially negates P+D (depending on states) t. *State v. Guthrie:* Defendant stabbed his coworker in the neck and killed him after a coworker was joking around and snapped him in with a dishtowel several times and Defendant has deep insecurity about his nose. D. confessed to murder and said he had a panic attack and doesn't remember stabbing the victim. Murder as unlawful killing of another human being with malice aforethought. Elements that separate 1^st^ and 2^nd^ degree murder are deliberation and premeditation (in addition to formation of specific intent to kill.) Court mentioned that there should be a sufficient period to permit the accused to consider the plan to kill, any interval of time before forming intent and the execution of that intent is sufficient to support conviction for 1^st^ degree. u. *Commonwealth v. Carroll:* Carroll murdered his wife and found guilty of 1^st^ degree after shooting her in the head after a lengthy argument about his ability to take a job position. D testifies that he doesn't remember grabbing the gun but they frequently fought and she beat their children, so he was doing it to protect them. Whether the intention to kill and the killing were within a brief space of time or a long space of time is immaterial if the killing was intentional, willful, deliberate, and premeditated. Here, the court found the evidence shows the legal impossibility of premeditation v. Murder can ratchet down to manslaughter in situations of "heat of passion" or "extreme emotional disturbance" Manslaughter: A. intentional killing that is downgraded to manslaughter dependent on mens rea. a. homicide done without malice. b. Murder can ratchet down to manslaughter in situations of "heat of passion" or "extreme emotional disturbance" B. Voluntary Manslaughter: c. Highly controversial, turning intentional murder into lesser crime of voluntary manslaughter based on provocation. i. Some consider it to be about justifying the victims' actions ii. OR more commonly, as an excuse, ex. partially understandable that circumstances caused D. to lose control d. Mens Rea iii. **Common Law:** "**heat of passion**" 1. There is an adequate provocation a. Ex. extreme assault on D, mutual combat, illegal arrest of the D, injury or serious abuse of close relative or friend, sudden discovery of spousal adultery 2. That puts D in the heat of passion (rather than reason) b. Crime occurs before D has cooled down and before reasonable person would have cooled i. Rekindling: provocative event occurs, D cools down, but is then rekindled by some smaller event later on (vv rare) 3. There is a **causal connection** between provocation, passion, and killing. 4. *Girouard v. State:* D and V are married for a few months, V may be having affair with boyfriend, D confronts her and V says a number of things that enflame D. She's going to report him to his boss, he could be court martialed etc. D grabs knife and fatally stabs her 19 times. Rule: Reasonable person in unreasonable position "standard is one of reasonableness, does not focus on the mind of the Defendant." There was premeditation but no deliberation (he was enflamed). Doesn't fit into provocation categories, words are not an adequate provocation. 5. *State v. Castagna:* Mob fatally beats up and use racial epithets while killing the V who is black. Three defendants were in the bar at the night of the beating, alleged that they were provoked because V was aggressive to two of their friends. Group chased him out of the bar and then Morales joins mob and drops rock on V's head to kill him. NJ adheres to CL rule for voluntary manslaughter; Adequate provocation defense is upheld under injury or serious abuse of family/friend. The mob frenzy prevented a cooling down period. iv. **MPC**: "**extreme emotional disturbance**" 6. **MPC 210.3(b):** homicide which would otherwise be murder is **commited under influence of extreme emotional or mental disturbance** for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from viewpoint of person in the actor's situation under the circumstances as he believes them to be" c. No single event required, but does need to be external 7. Reasonable person standard d. Objective- what would a reasonable person know or do if that person were in same situation? e. Subjective -- what did this person actually think/do? f. Hybrid -- what would a reasonable person with XYZ characteristics tailored to defendant think? 8. *State v. White:* D+ V are married 11 years, V cheats on D, causes great anxiety, anger, agitation. Get a divorce and D's anxiety worses (financial struggle loss of health insurance, V refuses to agree to refinance the home) D gets into car singing I want to kill you, I want to blow you away, calls him parasite, and leaves. Comes back few hours later and sees him on his cellphone (which he lied about having) and chases V in car into building. Rule: under extreme emotional or mental disturbance. Whether a reasonable person facing the same situation would have reacted the same way. External triggered was required. e. Actus Reus: v. Act or omission (conduct) that causes death of living human being (result) vi. can either be an... 9. intentional killing that is partially excused by adequate provocation that puts the D in the heat of passion. g. Passion, rather than reason compels them 10. Unreasonable act of self-defense vii. Different jurisdictions have different rules for provocation f. Other paths to voluntary manslaughter: viii. Imperfect self defense (good-faith but unreasonable belief in self defense) 11. Ex. police shooting cases ix. Diminished mental capacity (mental impairment that doesn't quite get to legal insanity) C. Involuntary Manslaughter g. All reckless killings are unintentional, because they lack malice or intent x. Reckless manslaughter has same reckless mens rea but not as extreme in both CL and MPC. xi. Jury decides the difference and we analogize based on cases. xii. Examples: falling asleep while driving a bus; permitting crowded conditions in nightclub with improper fire exits; improper medical remedies; unsafe blasting conditions; ice sculptor who builds tall statute and knows it could fall/injure someone, but takes no precautions; and executive who ships PB despite knowing it may contain salmonella. h. Mens Rea xiii. Defendant consciously disregards a substantial and unjustifiable risk. 12. Objective Test (reasonable person test): the social utility of the conduct is a factor (ie. Speeding in car to get to emergency room vs. driving for purpose of experiencing thrill) 13. Expected Harm = Probability x Gravity of Harm VS. Reasons for taking risk xiv. Risk is a gross deviation from the standard of conduct that a law abiding person would observe in actor's situation." i. Actus Reus xv. j. *People v. Kolzow:* D left her child in the car overnight, had been out all night doing activities and had left child in car, came home around 5 am and waited in car until stepmother had left for work in order to go inside to take a nap. Alarm didn't go off and she forgot about the child, who had died from heatstroke. Says she didn't crack windows, but they were cracked in the back when police got there. Rule: Involuntary manslaughter as "recklessly". Consider what she was aware of in taking a substantial risk of kid dying in car or if it was just a mistake: back windows cracked, the alarm clock was set, neighbor testifies that they saw her leave child in car \~6 times before. Court said it was substantial and unjustified as her social life and sleep took precedent. D. Misdemeanor Manslaughter: aka "unlawful act" manslaughter k. D is guilty if.. xvi. D commits misdemeanor and xvii. Unlawful act is proximate cause of someone's death xviii. No reckless mens rea required, just mens rea for misdemeanor. l. Ex. DUI, petty theft, public intoxication, disorderly conduct, prostitution, trespassing, drunk in public etc. m. *State v. Biecehele:* D. is manager of Great White, band playing in crowded venue in R.I., and lights pyrotechnics indoors without a license. Horrific fire breaks out and kills 100 people. To prove misdemeanor manslaughter: D had no permit, D intentionally controlled the object, D knew the object had pyrotechnic characteristics, D's unlawful possession of pyrotechnics was proximate cause of deaths. Must prove that lighting the fireworks were a proximate cause: "foreseeable risk of death in light of specific circumstances." Rule: proximate cause must be shown between the manner of operation and not just operation itself, harmless misdemeanor cannot serve as proximate cause of a death because death is not natural consequence of harmless action. **Crimes against People & Property** Theft, Robbery, Burglary A. Theft (non assaultive, not inherently dangerous) a. **MPC & Consolidated Offenses**: theft occurs when D. physically takes and carries away **or** uses deception, fraud or extortion to take someone else's property, with intent to permanently deprive the person of the property b. **Cal Penal Code s. 484:** 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... is guilty of theft. c. Larceny: i. trespassory taking and carrying away of another's property with the intent to permanently deprive the possessor of the property 1. Trespass: interference with someone's legal right on property 2. Taking: possession of property for **at least an instant** 3. Carrying away = "**asportation**," some movement of the property 4. Property = something of private property that is **in possession of someone else** 5. Permanently deprive = **never return** ii. Not larceny if D. believes 6. its their property 7. its no ones property 8. The owner has given him permission to take it. iii. *State v. Carswell:* Carswell was arrested and charged with felonious breaking and entering and felonious larceny, but denied ever moving the air conditioner out of the window. 9. Theft: trespassory taking and carrying away of another's property with the intent to permanently deprive the possessor of the property. There was asportation when they picked up the air conditioner, and they had control of the item (showing their intent to take it.) iv. *Marsh v. Commonwealth:* D. took jewelry from his girlfriend and pawned them but told her he would get it back when he got paid the next day. The girlfriend reported them stolen as D had done this previously and had not returned them. 10. Intent for larceny: intent to return the items must be unconditional, there is no defense if the taker intends to return the property. Here, court found that only temporarily borrowing it without conditions shows intent to return, but D. did not have intent at time of taking to return. Because of his financial situation, he did not have substantial ability required to return the jewelry. d. Fraud: v. Larceny by trick: where the taking of possession is accomplished through deception vi. Theft by false pretenses: except that D. recieves title to property not just possession e. Extortion vii. Obtains possession of property by threat or fear viii. Future threat ix. Taking by threat to do unlawful act or x. Taking by threat to do lawful act "blackmail" xi. Ex. threatening to expose a secret or by accusing the victim of a crime xii. *US v. Villalobos:* Fraudulent organization that was sending visas investigated for immigration fraud, bringing people to US, lawyer represented participant who was fired, he goes to 11. Extortion: obtaining property induced by wrongful use of actual threatned threats or fear. Whether D is guilty of extortion...when his action was not inherently wrongful, and he had a claim or right to the property. Here, it was a threat used to threaten obstruction of justice or to conform with the investigation. Offer was an unlawful threat (willing to have client lie in exchange for money). negotiation is not extortion, but place of unlawful threat makes it extortion f. Embezzlement xiii. Lawfully possess property of another but then appropriates it with the intent to deprive the owner of the property xiv. Taking by misappropriating what has been given to D. g. Robbery (non assaultive, inherently dangerous = possible for felony murder) xv. Taking from presence of the Victim through force or fear, some amount of **physical force** is required. xvi. **MPC**: D commits robbery if in the course of committing a theft, he: 12. Inflicts serious bodily injury upon another or; 13. Threatens another with or purposely puts him in fear of immediate serious bodily injury; or 14. Commits or threatens immediately to commit any felony of the first or second degree. xvii. **Common Law:** must prove that.. 15. Defendant entering building/room/locked vehicle/structure AND 16. When entering a structure, he/she intended to commit a felony B. Burglary (non assaultive, inherently dangerous = possible for felony murder) h. Enters a building structure with purpose to commit crime i. Must be an occupied place j. **Common Law:** must prove that they entered into the building, structure and intended to commit theft or other felony Rape A. Three elements a. Sexual penetration b. Lack of consent i. Consent is attendant circumstance c. Accomplished by force or threat of force ii. Intrinsic force: the act of penetration is sufficient force iii. Extrinsic force: some additional force is required beyond penetration, but how much additional force iv. Common Law: threat must put "reasonable" person in fear of physical harm. Non physical threats do not count for rape v. MPC 213.1: threats that count for rape must be of imminent death, serious bodily injury, extreme pain or kidnapping. Non physical threats can be gross sexual imposition, a lesser sexual crime. d. *Rusk v. State:* Element is the threat of force, Court found that the threat wasn't sufficient. the victim's fear which overcomes her will to resist must be a reasonable fear that if she resisted, he would have harmed her or that faced with such resistance he would have used force to overcome it. vi. Then was reversed: reasonableness was victim's apprehension of fear was a question of fact for the jury to determine e. *Comm v. Lopez:* No mens rea attaches to attendant circumstance, rape doesn't require D to be aware of lack of consent, has been limited to consent in fact with no required mens rea. General intent crime. vii. *Majority of jurisdictions do require some mens rea* B. **Cal. P.C. 261:** f. Rape is act of sexual intercourse accomplished with person not spouse of perpetrator viii. Where it is accomplished against a person's will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another. ix. Where an act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person and there is a reasonable possibility that the perpetrator will execute the threat. C. **M.P.C. 213.1:** g. Guilty of rape if... x. He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone. xi. He has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs... for purpose of preventing resistance, xii. Female is unconscious xiii. Or female is les than 10 years old h. Second-degree felony unless i) they inflict serious bodily injury or ii) the victim was not a voluntary social companion of the actor... and had not previously permitted him sexual liberties. D. "Reasonable" i. Subjective (genuine fear) AND j. Objective (reasonable person standard) E. Fraud: k. In factum: no legal consent, if consent based on fraud about the nature of the act xiv. Ex. Spousal impersonation l. In inducement: yes legal consent, if consent induced by fraud m. *Boro v. Superior Court:* Dr. tells woman she has serious contagious disease, she can treat it either with expensive treatment OR by sex with someone who has been injected with a serum that could cure her. xv. Fraud in inducement: induced into doing it. But there is a threat of force so there is a debated line between factum/inducement. xvi. CA amended law to include fraudulent representation that served a professional purpose. xvii. Assault, Battery, Arson A. Assault a. Attempted battery OR b. Act that puts victim in reasonable apprehension of bodily harm, when D has intent to cause that result. i. Words are insufficient to create reasonable apprehension c. General intent d. **MPC**: encompasses assault and battery e. **Common Law**: attempted battery f. *State v. Birthmark:* D. returned from a party, was intoxicated and started yelling at his mother and brother. Using threatening language and held a piece of lumber saying that he would kill them, and the people at the party. ii. Assault: purposely or knowingly causes reasonable apprehension, D didn't intend to cause them reasonable apprehension, court says this doesn't matter. Need to prove mens rea for conduct not for result. No way of fathoming defendant's mindset, must look to the defendant's act and other facts which indicate his state of mind. g. *State v. Boodoosingh:* D. got into a fight, during which he refused to drop baseball bat and shout threatening language. D raised his hand in a motion to hit the other man with the bat but was pushed by an intervening actor. iii. Attempt: intent to bring about target crime and must have taken sufficient step towards crime. Guilty of assault if: D committed attempted battery or intended to cause fear. B. Battery h. If he intentionally or knowingly without legal justification and *by any means* makes physical contact of an insulting or provoking nature with an individual i. *People v. Peck:* D. was found guilty of aggravated battery to police officer. D was belligerent and spit on him, hitting his face, glasses and cheek. iv. Spitting is offensive/insulting and can sustain a conviction for aggravated battery C. Kidnapping j. Confine or carry away victim for nefarious purpose k. Intent: for a nefarious purpose D. Anti-Stalking **Inchoate Crimes** Attempt A. Completed Attempt: D acts (or fails to act) and there is nothing left for them to do. But the crime fails a. Ex. D pulls the trigger but the gunshot misses the target B. Incomplete Attempt: D has yet to reach the final step and is interrupted before completion b. Ex. D is scoping out bank for robbery and is caught while doing so C. **Common Law: looks at how much is left to do** c. Mens Rea: 1) intend to engage in the conduct and 2) while engaged in the conduct have the specific intent to complete the offense. i. Extra important because the harm hasn't resulted yet! d. Actus Reus: **Mere preparation is never enough,** attempt either complete or if incomplete, apply various tests. ([Dangerous] [Proximity] and [Unequivocality] are most important) ii. [Slight acts test:] took even a slight act towards crimes commission iii. [Dangerous Proximity test:] close in time and space to committing the offense 1. *People v. Rizzo:* D and three others plan to rob man for payroll, drive around looking for him with guns, but didn't find the man. a. **Dangerous proximity** to completing the crime danger of success is very great, no near commission of the crime that they had reasonable opportunity to commit crime. b. Incomplete attempt iv. [Unequivocality test:] doing of this act can have no other purpose other than the commission of that specific crime (aka stop the film test---what comes next?) v. [Probable desistance test:] when a person has done so much preparation that he would not normally stop from going through with the crime. e. *People v. Gentry:* D. and his girlfriend are having fight in apartment, pours gas on her and she catches on fire. Sentenced to 45 years for attempted murder vi. specific intent to kill is necessary element of the crime of attempted murder, an intentional act with intentional result vii. Mens Rea: actors conduct must be intentional, and actor must have specific intent while engaged in conduct. viii. Actus Reus: mere preparation is never enough, apply proximity or unequivocally tests if the attempt is incomplete 2. You can't attempt reckless homicide (result crime), but you can attempt reckless conduct (conduct crime) f. Defenses: ix. Factual Impossibility is NOT a defense (ie. I'm not guilty of attempt because the crime was factually impossible to commit) x. Pure Legal Impossibility is a defense (ie. I'm not guilty of attempt because the law I tried to violate is not actually a law) D. **MPC 5.01: looks at how much has been done** g. Person is guilty of attempt if acting with the kind of culpability otherwise required for commission of the crime they... xi. Purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be xii. When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct = complete attempt xiii. Purposely does or omits to do anything which under the circumstances as he believes them to be is an act or omission constituting a substantial step in course of conduct planned to culminate in his commission of the crime = incomplete attempt 3. Conduct that is a **substantial step** is that is strongly corroborative of actor's criminal purpose 4. **Substantial step test:** conduct is not a substantial step unless the person's entire course of action is corroborative of the intent to commit the offense. Examples: c. Lying in wait/searching/following contemplated victim d. Enticing or seeking to entice contemplated victim e. Reconnoitering the place contemplated for the crime f. Unlawful entry of a structure g. Possession of materials to be employed in the commission of the crime h. Possession, collection, fabrication to be employed in commission of the crime i. Soliciting innocent agents to engage in conduct constituting an element of the crime. j. [Can be a substantial step even if not above] h. *State v. Reeves:* 12-year-old D's decide to kill their teacher by poison, brings it to school, ask student to be getaway driver, teacher sees them learning over desk later find poison in purse. xiv. **Substantial Step Test**: Conduct does not constitute a substantial step unless the person's entire course of action is corroborative of the intent to commit the offense. Here, having poison near coffee cup at school for purpose of committing the crime. have to prove that they had the intent to kill. i. Defenses: purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be. xv. **MPC** does not allow impossibility defenses unless they are a purely legal impossibility. xvi. *People v. Dlugash:* D is charged with attempted murder, shot gun at a person but evidence is uncertain as to if person was alive or dead. 5. Factual dispute on whether victim was alive or not but factual impossibility is not a defense because at that moment he intended to kill. Basic premise is what was in actor's own mind should be standard for determining dangerousness to society. xvii. *State v. Smith:* D is HIV+, he is in custody and threatens to kill jail guards by biting one of them -- charged attempted murder but claims impossibility defense. 6. **Factual impossibility is never a defense**. Concurrence of mens rea at the time of actus reus -- only matters what D. thought in that moment. 7. **MPC 5.05(2): Voodoo Rule,** so inherently unlikely to result or culminate in the commission of the crime that such conduct does not present public danger. E. Defenses: j. When faced with impossibility defense: xviii. Make sure its impossibility xix. Make sure its purely legal impossibility k. Abandonment is defense if it is complete and voluntary xx. **MPC**: motivated by unanticipated difficulties or resistance OR circumstances that increase the probability of detection or apprehension OR if the defendant has decided to postpone for later date/other victim. xxi. *Ross. v Mississippi:* D went to victims home and was about to rape her but she told him she had a daughter so he left, was charged with attempted rape. 8. **Abandonment** defense requires **voluntary and independent action to stop**: motivation to stop cannot be resistance from victim, fear of getting caught, intervening cause, desire to delay crime. Here, no physical resistance or external intervention, the perpetrator changed his mind. l. When faced with abandonment defense: xxii. Determine whether requirements for attempt liability are satisfied xxiii. If yes, analyze the abandonment issue. Inchoate Conspiracy A. Agreement between two or more individuals to complete an unlawful act. B. Elements: a. Agreement to commit unlawful act (Can be explicit or implicit) i. **Bilateral**: genuine agreement among two or more people (traditional **CL**) ii. **Unilateral**: defendant must agree, but other person can be pretending (traditional **MPC**) 1. Fake agreements: ex. those made with undercover cop, friend who says yes but intends no, or person with mental illness. iii. *State v. Pacheco:* D makes agreement with undercover police officer, charged with conspiracy to commit 1^st^ degree murder and deliver controlled substance. 2. Unilateral agreement does not count as they are **Bilateral** which requires genuine agreement between two people. b. Specific intent or purpose to achieve the goal or object of the conspiracy iv. Ask: did the D make the agreement with the intent/purpose for the group to carry out the target crime? v. *USA v. Valle:* D engaged and made plan to kidnap three women online, discussed dates, lied about possessing torture devices -- but never took action. 3. D did not have a desire to engage in the conduct, requires **specific intent** to engage in the target crime of kidnapping. Here, judge for inconceivable that dates for planned kidnappings would pass without follow up or inquiry and doing all these actions online shows lack of purpose. c. Overt act in furtherance of the conspiracy vi. Ex. Phone call, purchasing a weapon, looking up directions to the target bank. vii. The overt act does not have to come close to the commission of the crime viii. *US v. Shabani:* D. was charged with conspiracy to distribute cocaine and filed a motion to dismiss for not committing overt act. 4. Unilateral conspiracy without an act, the agreement itself can be the act. 18 USC 371: general conspiracy has an overt act requirement. ix. *US v. Abu Gayth:* agreed with Osama Bin Laden to appear in videos and claim that US will go down 5. Speech can be an act and satisfy the overt act requirement. Here, he entered into agreement with Bin Laden's team. Doesn't matter that the crime wasn't completed. 6. Telephone calls can constitute overt acts, but could be evidence of underlying agreement if between conspirators. d. If MPC, was the conspiracy renounced? x. **MPC 5.03(6):** affirmative defense if the D. thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. xi. *Commonwealth v. Nee:* D approaches other conspirators about school shooting and conducts planning towards the event, later goes to the police to turn in other conspirator. 7. **No renunciation defense** as it must be complete and voluntary they did not admit their own involvement (had an agreement, overt act, and the mens rea so the question is if they did enough to renounce their goal.) Solicitation A. With [specific intent] that [another person commit a crime], [D entices advises, incites, orders or otherwise encourages] the person to commit the crime. a. No agreement required from other person, emphasis on D's request and D's mens. b. Occurs the moment there has been a request (assuming proper mens) B. Elements c. Specific intent (purpose) to the commission of the crime d. Solicits, hires commands, requests, encourages or invites e. A third party to perform a crime. C. Merger f. Solicitation merges with completed crime g. Some JDX merge solicitation and conspiracy D. Renunciation (allowed by MPC 5.02(3)) h. Innocent instrumentality rule: behind the scenes person is classified as principal perpetrator not an accomplice. Instrumentality must remain non culpable for doctrine to apply (culpable individual is a free agent and not an instrument (ex. adults who are being duped into performing an illegal criminal action. i. Some require D to persuade or prevent the solicitee from committing crime j. Others do not allow renunciation as a defense. E. *People v. Breton:* D. wanted to kill man who bought drugs from him and now agrees to testify against him, asks a hitman to do it. k. Unilateral agreement is sufficient for conspiracy. Here, he intended to kill the man and sought out hitmen to commit the act for him, doesn't matter that man was an undercover agent. F. *State v. Cotton*: D is charged with sexually assaulting 14 year old stepdaughter, in jail he writes letter to his wife to prevent her from testifying. Inmate gives letter to authorities. l. Offense of solicitation requires actual communication from defendant to intermediary. State required actual communication, but could be guilty of attempted solicitation. m. MPC 5.02 (minority of JDX) states that it doesn't matter if communication succeeds, shouting into the void still counts. i. Actors intent or attempt to communicate still counts. G. *People v. Superior Court (Decker):* D. solicited hitmen to kills his sister and any friends or people who were witnesses. n. Guilty of solicitation, D went further by completing the agreement to kill, finalizing the plan and paying the hitman. D took direct act for attempted murder by agreeing that it would Could be a conspiracy to murder (depending on bilateral v. unilateral jdx) H. *People v. Rowe:* D. was upset that she didn't get her dream house, so she harassed the new homeowners and posed as woman on dating websites saying that she wanted to be raped. o. Under MPC, not guilty of solicitation but would be guilty of attempt to solicit innocent agent to engage in conduct constituting an element of the crime, but it does satisfy attempt liability under substantial step. p. Innocent Instrumentality rule: soliciting innocent agent doesn't count for solicitation, does satisfy attempted solicitation under MPC. **Linking Liability** Accomplices A. Principal: one present and doing the action B. Accomplice: present but not doing the action or not present but aids the principal a. Equally culpable with the Principal b. Accomplice liability: theory for how accomplice is guilty of crime someone else committed C. Community of Purpose: in a JDX with purpose or intent requirement, enemies can be accomplices to each other (in a gun fight or drag racing) D. **Mens Rea - Common Law:** c. Accomplice must have at least the mens rea of the target offense i. You can be accomplice to reckless [behavior] as an accomplice in conduct of the offense, but you can't be accomplice to a reckless [result] crime. d. Mens Rea of Assisting the Principal: Accomplice must have acted or failed to act when there was a duty to act with the purpose (or sometimes just knowledge) of helping the principal to carry out the crime. ii. If it is a reckless or negligent result crime, accomplices acts of assistance can permit conviction if done with recklessness or negligence towards the result. e. *Rosemond v. US:* charged with using a gun to aid and abet drug trafficking crime, person actively participates with knowledge iii. Accomplice must intentionally purposely/knowingly do some act of assistance with the (2) intent including purpose/knowledge for the Principal to commit the crime. iv. Knowledge that target crime will occur = advanced knowledge, that enables him to make relevant legal/moral choices, advance knowledge= knowledge at the time the accomplice can do something with it -- most notably, opt to walk away. E. **Mens Rea - MPC:** Person is accomplice of another person in commission of an offense if... f. To promote or facilitate the commission of the offense, he, v. **Solicits** such other person to commit it OR vi. **Aids, agrees, or attempts**, to aid such person in planning or committing it OR vii. Having a **legal duty** to prevent commission, **he fails to make proper effort** to do so. g. Or his conduct is expressly declared by law to establish his complicity. h. When **causing a particular result is an element of the offense**, an accomplice in the conduct causing such result is an accomplice in the commission of the offense**, if he acts with the kind of culpability if any with respect to that result that is sufficient for the commission of the offense**. F. Actus Reus: i. *State v. VT:* Being present isn't enough for the act of accomplice, need to have the mens rea at the same time and can't be after the crime has been committed. Here, he didn't steal anything himself and didn't encourage anyone to do so. viii. Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who **solicits, requests, commands, encourages or intentionally aids** another person to engage in conduct with constitutes an offense shall be held criminally liable as a party for such conduct. ix. Vs. mentioned cases: 1. Labrum: endorsed boasting about shooting but did not solicit etc 2. Smith: recruited co-D to engage in robbery, selected house, getaway car = yes to accomplice 3. Webb: knew someone to steal car, helped find someone to fence +sort jewelry = yes to accomplice j. Cal P.C. § 32: Accessory after the Fact \*Now separate crime\* x. Every person who after a felony has been committed, harbors, coneals, or aids a principal in such felony with the intent that said principal may avoid or escape from arrest, trial, conviction, or punishment having knowledge that such felony has been charged with such felony or convicted theoreof, is an accessory to such felony k. No Causation Required: xi. *State v. Tally:* Causation isn't necessary to be complicit, assistance doesn't have to be a cause of the prohibited result or act. 4. MPC 2.03: person is accomplice of another in the commission of the offense if (a): with the purpose of promoting or facilitating the commission, he aids or agrees or attempts to aid such other person in planning or commiting the crime. 5. Presence + action = encouragement of the principal xii. Generally not complicity for mere presence G. Natural & Probable Consequences Doctrine: accomplice is responsible for all N+P consequences of a crime that she agreed to. l. Rejected by **MPC**, minority of **Common Law** Jdx. m. Objective test used in determining whether a particular criminal act was a natural and probable consequence of another criminal act... a factual question to be decided in light of surrounding circumstances. Whether the charged offense was a reasonably foreseeable consequences of the act aided and abetted by the defendant. n. *Waddington v. Sarausad*: facts showing awareness of capping, of escalating violence beyond fists. He drove slower by the group as passenger shot and killed a student, D says he didn't have mens rea. xiii. Person is an accomplice in commission of crime, if with **knowledge** that it will promote or facilitate the commission of the crime, he or she either (1) solicits, commands... another person to commit the crime or (2) aids or agrees to aid another person in planning or committing the crime. xiv. Washington abolished N+P doctrine, not "in for a dime, in for a dollar" H. Defenses: o. **MPC** 2.06(6): Withdrawal: not an accomplice in an offense committed by another person if he terminates his complicity prior to commission of the offense and wholly deprives it of effectiveness in the commission of the offense or gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent commission of the offense. xv. Requires D to unwind participation by depriving his assistance of effectiveness, give timely warning to police or make proper efforts to prevent commission of the crime. xvi. Ghosting is not enough! p. Principals' acquittal can sometimes be a defense but not often. Conspiracy Liability A. **Pinkerton Rule**: a conspirator is guilty of the inchoate crime of conspiracy AND for any crime committed by other conspirators that is EITHER a. **Part of** the conspiratorial agreement OR b. Goes beyond the agreement but was a **reasonably foreseeable consequence** of the agreement. i. *US v. Alvarez:* Whether Murder of agent can be attributed to C+ H+ P through Pinkerton. Murder of the agent was a reasonably foreseeable consequence of drug trafficking conspiracy -- designed to sell Large quantities of drugs so they should have been aware that some people would be carrying weapons. D was not minor participants 1. Pinkerton makes all conspirators liable for acts in furtherance of the conspiracy OR reasonably foreseeable from the conspiracy 2. Reasonably foreseeable = at least negligent c. Reasonably foreseeable usually means objectively (reasonable person would see that the unintended crime could happen as a result) d. If Pinkerton applies, everyone up and down the conspiracy is responsible for all the crimes committed in furtherance of the conspiracy and those additional crimes that are reasonably foreseeable. B. **MPC**: Non-Pinkerton JDX: a conspirator is guilty of the inchoate crime of conspiracy but not guilty of crimes committed by co-conspirators, except through accomplice liability. e. **Conspirators are NOT responsible for crimes committed by other conspirators in furtherance of the conspiracy NOR are they responsible for crimes that are reasonably foreseeable**. C. Vs. the Natural and Probable Consequences Doctrine f. Accomplice is guilty of crimes that are the natural and probable consequence of offense he intended to assist g. Pinkerton liability makes D guilty of crimes that are reasonably foreseeable D. Scope: Is it one or multiple? h. *People v. Bruno:* 88 defendants involved in 4 distinct groups, there was no cooperation or communication between groups, but each group knew about others must be involved given the nature of drug trade ii. One large conspiracy because everyone knew there were other parts of the drug trafficking beyond the ones they weren't involved in; importers knew there had to be retailers, retailers knew there had to be buyers etc. i. *Kotteakos v. US:* Individual committed loan fraud with a bunch of different people, attempting to bring it as one singular conspiracy. iii. Bruno: Hub and spokes model: All D's knew or should have known that there are other D's working in the drug distribution enterprise, even retailers should have known. iv. Kotteakos: separate, D's in conspiracy don't have reason to know that there are others involved. E. Defenses: Withdrawal j. Requires affirmative act to disavow or defeat the conspiracy v. inform the authorities of the conspiracy vi. Communicate withdrawal to the coconspirators vii. Dissolve the underlying agreement that forms the basis of the conspiracy k. Vs. Renunciation: Defendant who enters conspiracy is guilty of inchoate conspiracy. If he renounces it, he's not guilty of inchoate conspiracy. If he fails to renounce, but he withdraws... he's still guilty of inchoate conspiracy, but not guilty of the crimes that conspiracy carries out. l. If Pinkerton JDX withdrawal is a big deal m. If not Pinkerton JDX D is not responsible for actions of coconspirators so its less important. n. *US v. Schweihs*: Daddino is guilty of extortion after he was kicked out of the conspiracy, but he didn't do anything to disavow/defeat it viii. He did not withdraw from the conspiracy because withdrawal requires more than cessation of activity, requires some affirmative action which disavows or defeats the purpose of the conspiracy. **Defenses** (textbook 641-784) Prosecutor must be able to prove all elements of the crime beyond a reasonable doubt: A. Actus Reus B. Mens Rea C. Causation D. Attendant Circumstances [Affirmative Defenses: ] A. Defendant concedes that the elements have been proven, but act is not criminal because it is excused or justified B. BUT argues that crime was not committed because of justification or excuse a. Justification: the act was correct where D does exactly what legislature wants b. Excuses: the act was incorrect, but the law understands why someone would do this. But less culpable. [Self Defense:] A. **Common Law:** D is justified in using force if Defendant has a good faith (subjective) and reasonable (objective) belief that she: a. Is threatened by **imminent force** and b. The force she uses in response is **necessary** to repel the threat and **proportional** i. Aggressors cannot claim self defense c. *State v. Norman:* Horrific abuse for 20 years and in three days leading up to killing, several efforts to escape including through suicide attempt, D gets a gun and kills husband while he is sleeping. Charged with 1^st^ degree murder and found guilty of voluntary manslaughter ii. Law of self defense required D claiming homicide was justified, inherently lawful by reason of perfect self defense that she reasonably believed at time of killing that she would have immediately suffered great bodily harm. Here, not self defense because not imminent if happening tomorrow. B. **MPC 3.04(1)**: requires immediacy, but dispenses imminence, actor **believes such force is immediately necessary** for purpose of protecting himself against use of unlawful force. d. **Immediately necessary**: asks about closeness of last opportunity to stop the harm. e. **Imminent Threat:** imminent in that its about to happen iii. If it's too far in the future = preemptive strike iv. If it's too far in the past = revenge trike f. **Force must be necessary and proportionate** v. If D can avoid the threat without the use of force, then force is not necessary vi. If D can use non-deadly force to repel threat, then deadly force not necessary. vii. Deadly force permitted only when threat of serious bodily injury or death. Deadly force is not permitted in defense of

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