Inchoate Crimes Specific Intent Crimes C L Category Solicitation Conspiracy Attempt A R

Criminal Law 2008 Fall – CHAVEZ Page 1 of 55
Elements Chart and Outline
INCHOATE CRIMES
Specific Intent crimes
category solicitation conspiracy Attempt
C A 1. Encouraging, aiding, abetting, or 1. Agreement b/w 2 or more people 1. Overt act in furtherance of that
L R ordering another person to commit a [4. Some jurisdictions require an overt act – but intent (beyond mere preparation).
crime not necessary for substantial step.]
Elements of
Crime M 2. W/ the specific intent that the 2. An intent to enter into an agreement 2. Specific intent to commit the crime
R other person commit the targeted 3. An intent to achieve the objective of the
offense agreement.
1. Impossibility no defense Wharton Rule Impossibility –

2. Withdrawal or renunciation no defense - If you have just the amount of people needed for 1. Factual – not a defense
Defenses 3. Exemption from intended crime is crime, okay, but more people – screwed 2. Legal – can be defense
defense
Withdrawal/A None available Can only stop tab – how much crime has been No renunciation or bail-out for
bandon committed yet attempt.
Merges – into conspiracy (once there is an Does not merge: conspiracy + Merges into the crime once completed.
Merger agreement)
N/A Pinkerton Doctrine N/A
Co-conspirator responsible for any crime
Vicarious committed by other members if done in
Liability furtherance of the crime and is reasonably
foreseeable.
m 1. Asking another person to commit an 1. Agreement (unilateral conspiracy) 1. Purposely engages in conduct that
pc offense 2. Engage in conduct that is crime, or attempt or would constitute the crime
2. Or request other person to do some act solicitation to commit such crime 2. Acts w/ a purpose to cause the
that would establish the other person’s 3. Agrees to aid person(s) in planning or criminal result
Elements complicity in the offense. commission of crime, or attempt or solicitation to 3. Or purposely does an act
Of Crime 3. W/ purpose of promoting or facilitating commit such crime. constituting a substantial step towards
commission of solicited offense 4. Overt act is needed. the commission of the offense.
Test:
MPC – “Substantial Step Tests”
Common Law – Proximity Test –

how close you came to completing the
offense.
Test - Also:
Physical proximity
Dangerous proximity
Indispensable element test
Probably desistance
Abnormal Step
Unequivocality test
1. Uncommunicated solicitation (person 1. Complete and voluntary renunciation; Abandonment available if:
being solicitated never got it) 2. D thwarts the success of the conspiracy 1. Fully voluntary
Defense 2. Complete abandonment or prevents
from being committed
1. Renunciation of criminal purpose See Defenses See Defenses
Withdrawal/A - Affirmative defense
bandon - Must persuade person not to do the Must have also contacted all members of
crime commissioned. conspiracy of renunciation and/or called cops
Merges – into conspiracy (once there is an If crime is completed – conspiracy merges N/A – once crime is completed, crime
agreement) Conspirator may not be convicted of both is no longer attempted.
Merger conspiracy and target offenses, unless the
conspiracy has a continuing code of conduct (no
withdrawal and crime has not been committed)
N/A Doesn’t buy into Pinkerton N/A
Vicarious Will hold you liable only for crimes you’ve
Liability participated in.
No vicarious liability
No Notes Mere solicitation – not an attempt to - Terminates when:
tes commit the crime solicited 1. Withdrawal of crime
Both unilateral – doesn’t matter if person 2. Completion of crime
accepts or not - Legislative statute – can’t be a conspirator if
there is a law intended to protect that person (17-
year-old girl can’t be convicted of statutory rape)
THEFT
Crime Elements Method Title

Activity Intent
Larceny -Trespass -W/ intent to permanently deprive -W/out consent -None
-Taking and carrying away another of property
-Personal property of another - taking during the time they needed it
under CL is also permanently deprived.
-specific intent crime- being drunk can
be a defense esp if involuntary
Robbery -Felonious taking and carrying away -W/ intent to permanently deprive -W/out consent -None
-Personal property of another another of property
-By force or threat of force
-From the person or in the immediate
presence of the victim
Larceny by Trick -Taking and carrying away -With the intent to permanently deprive -W/ consent obtained by -None
-Possession of another another of property fraud
-By trick or device
Embezzlement -Fraudulent Conversion -With the intent to defraud -Use of property in a -None
-Of personal property of another - if servant master relationship you only way inconsistent w/
-By one already in lawful possession get custody not possession🡪 would be terms of trust
larceny
- do not have to have intent to deprive
forever
False Pretenses -Misrepresentation of a present/past fact -With the intent to defraud -W/intent to defraud -Title passes
-Knowing it is false
-Which induces the Owner to part with title
HOMICIDE
Mens Rea (MR) 🡪 Intent, state of mind Homicide 🡪 killing of a human being by another (AR)
Actus Reus (AR) 🡪 The act: homicide – voluntary affirmative act of killing – or Justifiable Homicide 🡪 Killing of someone that is sanctioned by the law
– failure to act (where there is a duty) that causes death. (Examples: war, executions, self-defense)
Malam in se 🡪 A crime that is inherently wrong Excusable Homicide 🡪 Homicide that is not approved, but it is forgiven.
Malam prohibitum 🡪 A crime that is wrong b/c the law said so. (Example: infancy (?), involuntary intoxication (s/o slipped a drug into your drink,
insanity)
Crime Common Law California - § 189 MPC
🡪 Unlawful killing of another human being w/ 🡪 Homicide committed w/ malice. 🡪 No degrees in MPC!!!
Malice aforethought 🡪 Cool calculation, careful preparation 🡪 Purposely, knowingly or recklessly
🡪 Homicide committed w/ malice 🡪 Elements: 🡪 Reckless manifestation of extreme
🡪 No degrees in MPC!!! - Willful indifference to the value of human
D - Premeditated life.
- Deliberate
- Calm, cold-blooded
- Intentional
🡪 Malice aforethought 🡪 Intent to inflict death (See above description)
a) Intention to kill another human being
b) Intention to inflict grievous bodily 🡪 Premeditation: “Thought before acting
injury to the idea of taking a human life and
c) Extremely reckless disregard for reaching the decision to kill”
human life 🡪 “depraved heart” 1˚ - No time too short ** (Under this
Murde
d) Intention to commit a felony during explanation: every murder would be 1˚)
r the commission or attempted - U.S. v. Watson: “it’s not worth it”
commission of when a death - No need for D to “maturely and
accidentally occurs. meaningfully” reflect upon gravity of act.
MR 🡪 Deadly Weapon Rule: intentional use of a deadly - Anderson Factors:
weapon authorizes a permissive inference of intent to 1. Planning
kill. A deadly weapon is any instrument – or in some 2. Motive (prior relationship)
limited circumstances, any part of the body – used in a 3. Manner (preconceived
manner calculated or likely to produce death or design)
serious bodily injury. a. Weapon of Opportunity
Ex.: Firing bullet into crowed room; champion (usually not 1˚)
boxer fighting beats up a tavern owner, speedboat into b. Suggests that there had
crowd of swimmers. been no prior thought,
killer used what was
nearby
(If YES to a/b 🡪 not 1˚)
🡪 Deliberation: “Consideration and

reflection upon the preconceived design to
kill; giving it second thought.”
AR 🡪 Inflicting death upon another person 🡪 Inflicting death upon another person Homicide.
🡪 Also: homicide using one of the
following methods:
Poison
Explosive Device
Torture
Lying in Wait
Arson
Destructive Device
D (No degrees under common law!!) 🡪 Spontaneous, hot-blooded, impulsive (No degrees in the MPC!)
🡪 No Premeditation/deliberation
- “Abandoned/malignant heart
🡪 All other murders not under 1˚; other
un-enumerated felonies that are inherently
dangerous
MR 🡪 No premeditation/deliberation
🡪 Four ways to prove malice
2˚ 1. Intent to kill
2. Intent to commit s/b/h
3. Extreme recklessness
4. Felony murder
AR Anderson factors:
3) Was there a weapon of opportunity
present – shows that person did not have
time to plan out murder w/ proper weapon
(ex. Golf club)
D - Homicide during the commission of an enumerated - Homicide during the commission of an - Homicide during the commission of
crime: enumerated crime: an enumerated crime:
Felony Mayhem Burglary Burglary
Robbery Arson Rape
Murde Rape
1˚ Rape/Sexual Assault Robbery
r Arson Carjacking (§215) Arson
Burglary Murder Kidnapping
Robbery
Kidnapping
Train-wrecking
Drive-By
2˚ - All other inherently dangerous felonies

not enumerated in 1˚
MR 🡪 MR for the homicide is replaced by the specific 🡪 (See common law) 🡪 (See common law)
intent to carry out the felony.
AR 🡪 Attempt or the commission of the enumerated 🡪 (See common law) 🡪 (See common law)
felony.
D 🡪 An intentional killing distinguishable from murder 🡪 Intent to kill w/o malice (comes on RECKLESS MANSLAUGHTER
by the existence of adequate provocation; i.e. a killing because of circumstances) 🡪 When a homicide would otherwise
in the heat of passion, w/o malice. be murder, but for the influence of
🡪 Sudden quarrel or heat of passion EED or mental disturbance (MPC
🡪 While intentional killing – mitigated because it is doesn’t tell us what the triggering
Volunt justified to an extent. event is), or,
ary 🡪 Is committed recklessly.
🡪 Must view situation from the D’s
Mansl
point of view.
aughte - Intentional Killing w/o malice (see above) (See: P [Passion]) Recklessness (MPC)
MR
r 🡪 Actor must be aware that he is
taking a substantial and unjustifiable
risk to human life.
AR 🡪 Homicide 🡪 Homicide 🡪 Homicide committed recklessly

P Heat of Passion Doctrine Heat of Passion Doctrine Extreme Emotional Disturbance

1) Must have been such that it would arose sudden + (See under common law) (EED): MPC 210.3
intense passion in the mind of an ordinary person such 🡪 Homicide that would otherwise be
as to cause him to lose control 🡪 Adequate provocation 🡪 as seen by the murder is committed under influence
2) D must have been provoked reasonable person of extreme mental or emotional
3) No sufficient cooling time (Based on the MPC) – but instead of disturbance for which there is
4) D must have cooled off subjective, is objective – would a reasonable excuse.
5) Provocation must have reasonable person under the acts commit 🡪 Or, committed recklessly.
caused the killing. the homicide under the heat of passion?
🡪 Look at POV of the D’s situation
Provocation: mere words are not enough 🡪 Verbal provocation may be sufficient to under the circumstances as HE
cause extreme distress believes them to be.
Adequate provocation:
- Finding one’s spouse in bed
- Mutual combat
- Assault and battery
- Injury to abuse to a relative
- Illegal arrest
- If words are accompanied w/ intent to injure.
Imperfect Self-Defense:
- D has an honest but unreasonable belief in the
necessity to defend oneself against imminent death.
🡪 Becomes involuntary manslaughter if:
1. Honestly believed needed deadly force
2. Honestly believed reasonable force used
D 🡪 Unintentional killing w/o malice that results from 🡪 Unlawful act, not amounting to felony, 🡪 MPC renames this as
failure to appreciate substantial and unjustifiable risk or lawful act which might produce death in NEGLIGENT HOMICIDE
of harm. an unlawful manner, w/out due caution or 🡪 When it is committed negligently.
Involu I. Criminal Negligence circumstances.
- Criminally negligent or reckless crime (Objective
ntary awareness of the risk – deviation from what
Mansl Vehicular Manslaughter
reasonable person would do) Driving car in lawful act which might
aughte produce death in an unlawful manner and
r - Ex. Nightclub: lock emergency door: is cognizant w/ gross negligence.
of possible danger, ignores it. People die! ☹ 🡪 W/o malice aforethought, in violation of
- Ex. Guy leaves bay in car. drunk driving laws, and killing was
- Ex. Skiing fast ploughs into person. proximate cause w/ gross negligence.
II. Unlawful Act

- Misdemeanor manslaughter – a killing in the Gross Negligence
course of a misdemeanor 🡪 Criminal negligence
- Malam prohibitum/in se: death must be a
foreseeable, natural consequence of the actions.
🡪 If someone killed during a felony that is no

enumerated, it is involuntary manslaughter under
common law.
MR 🡪 Subjective awareness of the risk 🡪 W/o malice 🡪 Negligently
AR 🡪 Criminally negligent act that deviates from the 🡪 Partaking in act that constitutes gross
reasonable person standard. negligence and results in death.
CAUSATION
🡪 Actus reus of a crime is composed of 1) a voluntary at 2) that causes 3) social harm. Causation is an implicit element of all crimes.
Causation may be proximate or actual.
Theory Definition Example
But-For Causation D’s conduct must be the cause-in-fact of the result; i.e. the Regina v. Martin Dyos (scuffle at party, dude gets rock to the head)
result would not have occurred “but-for” D’s conduct
R. v. Benge (prisoner as foreman working on R.R.)
🡪 But for D’s reading the timechart wrong, RR tracks would have
been laid down despite everyone else’s contributory negligence.
🡪 If an actor’s negligence is the primary cause of a wrong, then it
would not be material that others, also by their negligence,
contributed to cause it.
Violent Acts Where the death was not due to a corporal blow or injury to Hubbard v. Commonwealth (jailer’s heart attack)
some hostile demonstration or overt act directed toward the
person of the decedent, there is no criminal liability unless
death or serious bodily harm was the probable and natural
consequence of an indirect, unlawful act of the accused.
Common Law: sufficient for a blow or strike against the V

by D 🡪 b/c back then, no scientific background to help
figure it out.
Foreseeability When the natural and continuous result could have been Commonweath v. Rhoades – arson causing death, foreseeable result.
foreseen by the actor, and which w/o the original act, the
result and the death would have never occurred.
🡪 “Natural and probable” result – proximately caused.

Intervening Acts 🡪 An intervening act will shield the D from liability if the Commonwealth v. Root (Drag Racing)
act is a mere coincidence or is outside the foreseeable sphere 🡪 Conduct of the D was not the proximate cause – the V had swerved
off risk created by the D’s act. and caused his own death.
Duties 🡪 The law recognizes that some other some circumstances,
the omission of a duty owed by one individual to another,
where such omission results in the death of the one to whom
the duty is owning, will make the other chargeable w/
manslaughter.
🡪 Must be a duty imposed by law (relationships) or by
contract.
🡪 Duties of mere moral obligation are not binding by law.
🡪 If a person who has a relationship w/ another, and knows

the person to be in peril, willfully and negligently fails to
make such reasonable and proper efforts to rescue him as he
might have done, w/o jeopardizing his own life, or the lives
of others, he is guilty of manslaughter by the reason of his
omission of duty, the other person dies.
DEFENSES
Defense Common Law California MPC
D Mental disease/defect recognized by the DSM
McNaghten Test ALI (MPC) Test
Insa (The cognitive/knowing test) 1. Lacks capacity to appreciate the
nity Test 🡪 Person is legally responsible if they know: criminality of conduct
1. The nature and the quality of the act; understand the consequence 2. Conform his conduct to requirement of
2. The act was (morally) wrong the law.
D (See below) Apparent urgency, inherently dangerous Can use of force when reason to think
(perfect) that force used against you is unlawful.
Self-
Defe Self-defense can be used: Deadly force: 1) Reasonable belief by the self-defender
1. Imminent threat 1. Threat must be realistic – imminent 2) Immediately necessary to protect
nse Elements 2. Reasonable Response threat himself
3. Proportionate 2. Response must be proportionate 3) No retreat if at home/work
4. No alternative force 3. Retreat 4) Estimable response – actor makes the

- Castle Doctrine: estimate of force to be used.
- Must retreat if not home
- Don’t have to retreat if
attacked in home
4. Aggressor using self-defense
- If they withdraw from fight,
regains right to use self-
defense
- Sudden escalation from
minor to one using deadly
force.
Imperfect self-defense:
Im-perfect - Honest belief that self-defense was necessary, but it was unreasonable
Defense - More force than reasonably necessary
Defe Used by law enforcement – deadly force

nsive can be used (by law enforcers)
- To prevent a threat of death s/b/h to
Forc innocent people
e - When person is escaping from
prison/jail/other institution
D - Suppress mutiny after warning deadly
force w/b used
- Arrest for a felony where there’s s/b/h
or death risk.
- Response must be proportional.
- Exception: when others
are at risk.
Choi - A justification defense Necessity/Choice of Evils §3.02
ce of - Choice of evils - The harm or evil sought to be avoided
- Seen as more noble than duress: person by such conduct is greater than sought to
Evils is making a decision and evaluated the be prevented by the law defining the
(Just D lessor of two evils – argue that you avoid offense charge.
ificat a great consequence and society agrees - When the actor was reckless or
ion) with you. negligent in the act bringing about the of
this defense, this defense is unavailable.
Need: Need:
1. Choice of evils 1) Can use for homicide if fewer people
2. No alternatives would die.
3. Immediate threat 2) Harm avoided is greater than the harm
4. Defendant chooses the lesser evil done.
5. Can’t have created the necessity. 3) No specific prohibition by laws.
[6. Civil disobedience] 4) Causal connection to the prevention of
the greater harm
Elements [5) Can’t have acted recklessly or
negligently – D must not have contributed
to the necessity]
Differences b/w CL:

- Can use for homicide
- No imminence requirement
Dure Where the D performs an act under the Where a person of reasonable firmness
ss imminent threat of serious bodily harm or could not have resisted.
death by another. 🡪 Duress can be a defense for homicide.
(Exc - Human
use) - Genuine – imminent
D - Self-Preservation (must do act for fear of
s/b/h or life)
- Escape is not possible (retreat)
- No guilt – cannot be reckless or
negligent
COMPLICITY
Aiding: Physical assistance, Information Abetting: As simple as verbal encouragement, causing a

person to act
Common Law Modern Law/California MPC
Definition Designed around an analysis of where Focus is on who is participating to assist A person is an accomplice of another person in
you are at the time of the crime (where is the crime. the commission of an offense if, w/ the purpose of
everyone at the time of the crime)? promoting or facilitating the commission of the
Knowledge + Act + Criminal Intent offense, (see: AR)
Actus Reus - Aid or encouragement to the person(s) Act - He solicits the other person to commit it;
committing the crime. - Or aids or agrees or attempts to aid the other
- Inaction in an activity can be part of the person in planning or committing it,
crime - Or (having a legal duty to prevent the crime)
(Ostrich rule 🡪 if a person willfully tries fails to make the proper effort to prevent it.
to avoid gaining knowledge of a crime –
then almost the same as knowing
something is going to happen.)
Mens Rea Share the specific intent or purpose of the Criminal Intent + Knowledge Intent to commit the crime
principal for the crime to occur.
Classifications Principal 1˚ Everyone is classified as a principal Depends: see who is doing what.
Principal 2˚
Accessory-before-the-fact Person is not an accomplice if they are:
Accessory-after-the-fact a) Victim of offense
b) Offense is so defined that his conduct is
incident to the commission
c) Terminates his complicity prior to the offense
occurring
Vicarious Liability 🡪 If the accomplice aids in the commission of an
offense, he is liable – see how far the person has
aided in that particular aspect of the crime.
Miscellaneous 🡪 Dupes: person who gets talked into 🡪 Perpetrator by the means of using an innocent
committing the crime – true dupe doesn’t person – MPC looks to see what one has done and
know he’s committing a crime – he does holds them accountable.
the act, but there is no mens rea.
- Evaluate: do they know?!
🡪 Common law: using a person that is

too young to be accountable, person
setting them up can still be liable.
I. Sources of Criminal Law

A. Statutes
1. modern approach
a. criminal prohibition must have some form of legislative mandate
2. evolution of common law
a. common law may provide grounds for civil action, but crimes must fit under specific legislative statutes
3. PRINCIPLE OF LEGALITY
a. if prosecution is viable, give defendant a chance to find out what they did wrong (i.e. trial)
b. informs people of punishable/forbidden behaviors
4. gives constituents venue to fill in gaps and responds to things they view as lacking in some certain of the law
5. MODEL PENAL CODE (formulated by American Law Institute in 1962)
a. Drawn in response to the lack of uniformity of state level penal codes
b. Substantially adopted by many states
c. Preeminent source of guidance in revision and reform of substantive criminal law
6. often vague or ambiguous
a. gives court broad discretion in interpreting statutes
i. courts may not overrule statutes except on constitutional grounds
B. Precedent
1. includes judicial decisions at all levels, state and/or federal
a. courts interpret what seems to be present in statutes/laws
2. stare decisis
a. courts tries decide cases that is consistent to established law
i. try to uphold a consistent interpretation of the law
ii. seek to provide a rule or standard of decision binding in future cases
3. judges only concerned with relevant similarity (rules, justifications of rules, key facts)
a. try to adhere to the rationale of previous cases
4. may be overruled based on changing times/societal norms
C. Constitutions
1. both federal and state usually have similar civil right provisions that may be thought to set boundary conditions for just punishment (due
process clauses). CB 14
a. may invoke arguments that conduct cannot be punished unless defendant had noticed it was criminal
i. must be based on conduct, not characteristics, desires, thoughts, etc.
ii. punishment must be pursuant to precisely drafted statutes
2. requires prosecution take on the burden of proof beyond a reasonable doubt.
II. The Criminal Act

A. Actus reas: crimes require an act
1. Proctor: Δ cannot be punished for an “unexecuted thought”
B. criminal acts must be done voluntarily (MPC § 2.01)

1. unlike torts where one can be held liable for accidents/nonvoluntary acts that result in harm to someone else, criminal acts must be proven
to be done voluntarily because the punishment may be the loss of liberty because of the actor’s choice to partake in the behavior.
2. by requiring a specific act, the law allows a discussion of unlawful ideas, thoughts, etc.
C. Requirement of Voluntary Act
1. criminal act must be done voluntarily to hold one criminally liable
2. punishing involuntary acts contradicts the purposes of criminal liability
a. deterrence: involuntary acts cannot be deterred with the threat of punishment under the law
b. retribution: it would be wrong to punish one for actions that he had no control over.
3. mens rea vs. actus rea
a. mens rea: able to distinguish the criminality of action(s); actus rea: capable of making the distinction, but unable to control or unconscious
of his body (e.g. automatism, seizures, convulsion; non-volitional)
i. People v. Grant: insanity (unable to distinguish wrongfulness of acts) is not same as automatism (able to distinguish between right and
wrong, but unable to control body movements) CB 131
(a) Could be held responsible for drinking while knowing of his medical condition similar to Decina
(i) Made a conscious decision to drink; was a voluntary act
(b) his condition does not preclude his ability to commit the act
ii. People v. Decina: choosing to drive while aware of that he was subject to epileptic attacks and seizures was a voluntary act. He
knowingly disregarded the risk.
(a) Dissenting opinion: should only look at specific point, not earlier in the timeline.
4. MPC § 2.01(2) – A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the
omission to perform an act of which he is physically capable
D. Possession (what is the “act” in this crime?)
1. Defined: MPC § 2.01(4), CB 1170
a. MPC allows one in possession to relinquish the thing if done within a reasonable time
2. most statutes require some degree of knowledge, but not knowledge of the law (ignorance of the law is no excuse)
a. pertaining to possession, “possessor knowingly procured/received the thing…or was aware of his control thereof…”
b. “willful blindness” – overlooking some things that would reasonably lead to the questioning of the legality of an act
i. can substitute for knowledge – Valot (1971)
3. requires dominion and control, not ownership
4. falls under a branch of “intent” (general intent)
a. accepted way to prosecute one’s control of an illegal object/substance
E. Omission (Failure to Act) – failure to act or omission of duty
1. may prosecute in absence of an act

2. policy and culture play a big role in this area
a. usually doesn’t play a big role in criminal law as it does in torts
3. Traditional status of relationship can raise an obligation to duty (can qualify for prosecution for failure to act); MPC § 2.01(3)
a. Status/relationship (e.g. parent/child, spouse, etc.)
i. Jones v. U.S.: baby’s care was not Jones’ responsibility; she was not natural mother nor did she have contract to render care – had no duty
(a) Ct reversed her trial court conviction
(i) duty must be a legal duty, not just moral obligation. CB 122
b. by contract (agreeing to take on some responsibility)
c. statute – duty imposed by legislature
d. peril rescue/ “seclusion”: running off others’s help; failure to complete the task can question if actor’s omission is actionable because the
partial action could have convinced other potential caregivers that help was already being administered.
III. Mens Rea (The Guilty Mind) should have known.

A. Crimes usually made up of two components
1. actus reas: actual act or commission of
2. most crimes also require some sort of mental state while executing the act; mens rea
B. trying to identify the characteristics/qualities that constitutes mental states worthy of punishment when act is carried out.
1. linking punishment to moral blame by conditioning liability on bad thoughts
C. MPC has made attempt at implementing consistent vocabulary
1. many jurisdictions have not adopted MPC’s approach to mens rea
2. does not classify elements; instead actively attempts to determine material element of each offense into three categories (i.e. does not
classify into “general” or “specific” intent
a. conduct/act
b. Attendant circumstances – actions that can be taken within context, then might not have a crime
c. Results – if certain results are not achieved, then may not be a crime
D. “General intent” vs. “Specific intent”
1. distinction ambiguous; definition of the terms may change depending on situation
2. definition of a crime must serve as a constant
3. GENERAL INTENT
a. In general, only concerned with the act, not result
i. Having knowledge of awareness of the nature of the voluntary act
(a) Rape is a general intent crime
b. easier to convict for general intent crimes

4. SPECIFIC INTENT
a. Aiming to achieve some sort of purpose/result; working toward achieving some specific outcome
b. Addresses
intoxication is a a more sophisticated intent to achieve a specific result
defense to specific crimes require the highest level of mens rea to be proven
i. Attempted
intent crimes but not
(a)general
to “attempted
intent rape” is a specific intent crime
5. Four different interpretations of distinction between “specific” and “general” intent. CB 183-184
crimes
a. “specific intent”: refers to mental element of any crime; “general intent” refers to broader question of defendant’s blameworthiness/guilt
b. “specific intent”: unexecuted intent to do some further act/ accomplish some further result; “general intent”: intent to do the proscribed act
(actual crime)
i. under this version, specific intent crimes often contain a “lesser included offense.”
c. “specific intent”: must prove the defendant intended a particular result, or intended that his action have a particular legal consequence;
“general result”: presumes that actor intends the “natural” and “probably” results and the “legal consequences” of his conduct
d. “specific intent”: purpose/desire; “general intent”: knowledge/recklessness/negligence
E. MPC established a four word vocabulary to describe every mental state. CB 212; MPC § 2.02
1. generally falling under specific intent:
a. purposely: the actor’s purpose of taking action
i. conscious object to engage in conduct of that nature or to cause such result
ii. actor is aware of the existence of such circumstances or believes/hopes that they exist
b. knowingly: an awareness of circumstances; practically certain that his conduct will produce a certain result. “callousness” vs. “disregard
for the results”
i. he is aware that the conduct is of that nature or that such circumstances exist
ii. if conduct involves a result, awareness that it is practically certain that the conduct will cause such a result.
2. falling under general intent:
a. recklessly: aware of the risk, but consciously reduces the risk; has rationalized taking the risk, disregarding something analytically known
i. consciously disregards a substantial and unjustifiable risk
ii. the disregard of risk involves gross deviation from std of conduct of a reasonable person
b. negligently: should be aware of substantial unjustifiable risk; clueless but dangerous nonetheless
i. failure to perceive the risk must involve a gross deviation from reasonable std of care.
F. Strict Liability
1. liability imposed for faultless conduct
a. narrow distinction between negligence and strict liability focuses on whether the defendant’s awareness is a failure to meet the objective
standard of the reasonable person (CB 218)
2. by having consequences that are unpleasant, then people will try very hard to take necessary precautions (higher level of responsibility)
a. largely regulatory in modern times
3. if society creates regulations, without mens rea then offense are not crimes but violations
4. does not let the mental state of the defendant to be applied – just show that the act was done
G. Mistake of Fact
1. general intent crime
a. has awareness of the nature of the voluntary act
i. People v. Bray: defendant knew the law, but didn’t think that it applied to him because of the ambiguity surrounding his status as a felon
(a) A reasonable mistake of fact can be accredited (his status as a convicted felon)
(i) There was no information to contradict defendant’s conclusion that he was not a convicted felon (was granted rights and privileges not
afforded to felons; filled out official forms and indicated he was not sure of his status for years.)
ii. Long v. State: defendant based his decision to remarry before his first was annulled based on erroneous information given to him by his
attorney.
(a) Actually checked with attorney to confirm that his first marriage was legally null.
(i) Complaint was that he was deprived of his right to present evidence that he had consulted his attorney.
b. Relevant defenses: MPC § 2.04 “Ignorance or Mistake”
H. Mistake of Law
1. specific intent crime
a. shows that actor had intent to commit the act, but was simply not aware of the specific crime
i. ignorance of the law is not accepted when the have the mental state to commit the crime but not of the knowledge the degree of the
offense
(a) ignorance can substitute the for the lack of mental state to commit the crime
b. People v. Baker: defendant Baker knew that his acts were wrong but did not know the degree of the offense (from civil to criminal)
i. knew all the important elements of his actions; at least blameworthy.
c. State v. Cameron: though she may have been intoxicated when she committed aggravated assault, a “person acts purposely with respect to
the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result” (N.J.S.A.
2C:2-2(b)(1)).
i. Cameron’s purposeful conduct was getting drunk 🡪 specific intent
IV. BURGLARY – specific intent crime, don’t need actus reus to comit
A. Defined: MPC § 221.1(1)
B. Defined: CA Penal Code § 459
C. Common Law: The trespassory breaking and entering of a dwelling house of another at night with the intent to commit a felony therein.
1. aims to prevent a precondition of the crime (entering the dwelling in order to commit a crime inside)
2. a crime of habitation, not ownership (Peck)
3. a specific intent crime
a. breaking and entering with the specific intent to commit a felony
i. People v. Tackett: by throwing the coat over victim’s head while he attacked her sufficient to show that he manifested the intent before
entering the residence
ii. State v. Peck: though defendant might have had ownership of the house, restraining order issued by court revoked his right to be on
property. He violated the court order, entered property and committed assault on nephew.
4. requires less action than many attempted crimes; focuses on the intent of gaining unlawful entry
a. focuses on mens rea, actus rea not necessary
i. extrapolate from defendants’ conduct (Creasy and Tackett)
(a) based on their behavior and the logic of the circumstances, then legally sufficient to fulfill necessary elements.
(b) even if actor leaves without taking anything, is still liable for burglary because at the time of breaking and entering he had the necessary
mens rea.
b. most “attempted crimes” require the actor to make a substantial step towards accomplishing the crime, burglary does not
D. Elements of Burglary
1. “breaking”
a. any movement of barriers (e.g. unlocked doors, windows, etc.) is sufficient (Creasy v. State).
i. climbing through an opening does not constitute “breaking”
ii. opening must be created by Δ
b. “constructive breaking”: achieving entry by use of deception, or fraud, or violence
i. force is no longer required
2. “entering”
a. People v. Tragney: mere breaking does not constitute entering
i. tool used to gain entry must also be used to commit larceny to constitute entering
3. “with the intent to commit a felony therein”
a. see discussion under “specific intent” subsection (a)
E. Degrees of Burglary
1. CA Penal Code § 460
a. every burglary of an inhabited dwelling (house, vessel, etc.) which is inhabited and designed for habitation is burglary of the first degree
i. all other kinds are burglary of the second degree
ii. doesn’t require breaking, at night, house isn’t dwelling house.
ii.
2. MPC § 221.1(2)
a. burglary is a felony in the third degree, unless:
i. it is committed in the dwelling of another at night, or
ii. In the course of committing the offense, the actor purposely, knowingly, inflicts/attempts to inflict bodily injury on any one, or
iii. is armed with explosives or a deadly weapon
(a) “in the course of committing the offense” occurs in an attempt to commit the offense or in flight after the attempt/ commission
F. burglary by instrumentality
1. People v. Tragney
a. must prove that instrument was actually used to perform burglary
i. if not, then tool can only be used as proof for “breaking”
V. INTENTIONAL HOMICIDE
A. Definition: the unnatural death of a human being
B. originally all homicides were considered as murder, carrying capital punishment
1. manslaughter and lesser degrees of homicide are a modern development
a. all murders have “malice”
i. Malice defined: “an intention to cause, or a willingness to undertake, a serious risk of causing the death of another…based on an immoral
or unworthy aim” (CB 347)
ii. Malice Theory:
(a) an intent to kill/ cause death (formed the intent and took steps to complete it)
(b) an attempt to do serious bodily injury/harm where the victim dies.
(c) extreme recklessness w/respect to the risk of death – a callous indifference to the risk of possible deadly consequences
(i) not necessarily intent to kill, but conduct was so callous/extremely reckless that occurrence of death is no surprise
(1) attempt to show a mindset with a disregard for human life 🡪 engaging in conduct that someone can spot a possibility of death without
care
2. at common law, no distinction of degrees (MPC rejects degrees too)
3. murder and manslaughter have intent element
a. mens rea (intent)is what distinguishes between manslaughter and murder; actus reas look very similar
4. “transferred intent” – the attempt to kill A misses target and ends up killing B; the intention to kill A will transfer to B when defendant
never really intended to kill B
a. a legal fiction
C. Murder
* general def: an unjustified killing manifesting (1) purpose to cause death; or (2) intent to inflict serious bodily harm; or (3) extreme
recklessness with respect to a serious risk of harm to another’s life, where the risky action manifests so unworthy or immoral a purpose as to
suggest callous indifference to human life; or (4) (f-m rule) a willingness to undertake even a very small risk of death where the risky
conduct is so unworthy as to establish guilt of a serious felony.
1. Model Penal Code
a. Murder (MPC § 210.2) – does not have varying degrees of murder; does not contain “malice”; places it under “specific intent” mens rea
i. criminal homicide constitutes murder when “it is committed purposely or knowingly; or
ii. committed recklessly under circumstances extreme indifference to the value of human life…presumed if the actor is engaged or an
accomplice in the commission/attempted commission of/flight from after committing/attempting to commit:
(a) robbery
(b) rape/deviate sexual intercourse by force/threat of force
(c) arson
(d) burglary
(e) kidnapping
(f) felonious escape
iii. murder is a felony of the first degree punishable by imprisonment or capital punishment
b. ** REMEMBER **: express the type of recklessness it is under the MPC
2. CA Penal Code: divides murder into differing degrees

a. murder defined: Cal. Penal Code § 187 – “murder is the unlawful killing of a human being…with malice aforethought”
i. “unlawful killing”
(a) justifiable (lawful) homicide is not deemed unlawful
(i)some self-defense or police within scope of power
ii. “malice aforethought”
(a) “aforethought” has no technical meaning; interchangeable with concept of malice
(b) establishing “malice” element is sufficient to charge murder
(c) varying degrees of malice (CA Pen. Code § 188)
(i) EXPRESS MALICE
(1) when there is a manifested deliberate attempt to kill another human being – formed an intent to kill and took steps to complete the intent
or,
§ 188: Express malice
(2) attempt to do serious bodily injury/harm where the victim dies
when there is manifested a
(a) defenses: extreme
deliberate intention(parallel with MPC’s concept of “extreme mental or emotional disturbance”)
provocation
unlawfully to take away the
life of a fellow creature
(ii) IMPLIED MALICE (= extreme recklessness)

(1) Implied
no considerable provocation, or when circumstances “attending the killing show an abandoned and malignant heart” (i.e. extreme
Malice: when no provocation
appears, orw/respect
recklessness when the to the risk of death): see above under “Malice Theory”
circumstances
(d) attending
tends to the
divide murder1
killing show aninto a mental state, a method of killing, or engaging in felonies/attempt felonies that result in death
abandoned
and malignant Murder:
b. First-degree heart (a.k.a. extreme
requires premeditation and deliberation
recklessness
i. malice under CA murder1 tends to divide the commission into a mental state, a method of killing, or engaging in felonies or attempted
felonies that result in death (felony-murder)
ii. enumerated list:
(a) if perpetrated by means of a destructive device/explosive
(b) knowing use of armor-piercing ammunition
(c) poison
(d) lying in wait
(e) perpetrated by discharging a firearm from a motor vehicle intentionally at another person outside the vehicle with the intent to inflict
death (drive-by)
(e) or any other willful, deliberate and premeditated killing, or
(f) committed in the perpetration of: (felony-murder is equivalent to malice)
(i) arson
(ii) rape
(iii) carjacking
(iv) robbery
(v) burglary
(vi) mayhem
iii. for murder1, must have performed the killing or have necessary mens rea (intent to inflict sever bodily injury/harm)
(a) premeditation/deliberation
(i) premeditation: planning: decision to kill with a chance to rethink it over – a form of specific intent
(ii) deliberation: weighing the decision; turning over the thought in the mind; consecutive thought (should I? should I not?); reflection.
(1) can go quickly
(2) law does not look to timeliness of decision; more looking for firmness and resolve to kill, however not determinative - U.S. v. Watson
(1985)
(iii) shows more than intent 🡪 indicates character of actor
(b) State v. Anderson, 742 P.2d 1306 (CA): set three things for determining culpability:
(i) planning
(ii) prior relationship between killer and victim
(iii) manner of killing

c. all other murders are Murder2 – Malice still required
i. if only have intent to kill (malice), then only have murder2
(a) intent to kill insufficient mens rea for murder1 but enough for murder2
(b) no serious provocation (extreme emotional disturbance/heat of passion)
ii. no premeditation/deliberation
iii. for felonies not enumerated under murder1
D. Voluntary Manslaughter – no “malice”🡪 mitigating circumstances

1. manslaughter was created in response by legislature to avoid having to kill everyone who committed murder
a. punishment’s purpose of deterrence not served
i. a recognition o the fact that one who kills in response to great provocation should be regarded as someone of significantly different
character deficiency than one who kills without provocation (MPC commentaries on § 210.3 – CB 383); rage is less deterrable
(a) circumstance of situation looked at more than the moral depravity of the Δ
2. manslaughter does not have “malice,” but mitigating circumstances
a. there was “adequate provocation” or honest belief that killing was necessary for self-defense
i. may sympathize with Δ on some level, but cannot exonerate because he still committed a crime
3. MODEL PENAL CODE (MPC § 210.3)
a. rejects “involuntary manslaughter”
b. basically defined as murder with mitigating circumstances (reasonable excuses):
i. if committed recklessly (negligent homicide) or,
ii. extreme mental or emotional disturbance
(a) MPC § 210.3(1)(b) reasonableness of explanation/excuse to be determined from the actor’s viewpoint of the situation under
circumstances as he perceives them
(b) “extreme emotional disturbance” = “provocation” under Cal. Penal Code
(i) legally permissible provocation: adultery blow/mutual combat/battery if Δ did not initiate the standoff; less clear: threat of physical attack
MPC § 210.3 Manslaughter:
(in extreme cases)/ unlawful arrest/violent or sexual assault on a close relative
(1) Criminal homicide
(1) words manslaughter
constitutes alone not adequate provocation (common law)
(2) historical trend has been toward relaxing these categorical rules
when…
(ii)
(a)ctamust understand
homicide whichwhy the defendant felt/achieved the emotional disturbance “from the viewpoint…he believes them to be.”
would otherwise be murder
(1) very subjective is
approach
(2) “actor’s
committed situation”:
under not only the fact but also takes into consideration what/who is involved; People v. Berry
the influence
of (iii)
extreme mental
burden or
on prosecution to disprove provocation once Δ bears some plausible evidence of provocation
emotional disturbance for
which there is reasonable
explanation or excuse. The
reasonableness of such
explanation or excuse shall be
determined from the viewpoint
(1) most states require Δ to prove EED as an affirmative defense, by a preponderance of the evidence (CB 386)
(c) no cooling off time b/w provocation and reaction
(i) must be continuous action; an interval b/w assault/provocation may be sufficient for rationale to kick back in 🡪 then shows deliberate
revenge (murder); CB 381; U.S. v. Watson, Ex Parte Fraley, People v. Walker
4. CALIFORNIA PENAL CODE (Cal. Penal Code § 192(a))

a. manslaughter def’d: unlawful killing without malice or negligence (3 categories: Voluntary, Involuntary, or Vehicular)
i. Voluntary Manslaughter– intentional act in response to provocation
(a) Δ acts upon sudden quarrel or heat of passion
(i) People v. Walker, Rowland v. State, People v. Berry
Cal. Penal Code MPC

- sudden quarrel - doesn’t distinguish “voluntary”
- heat of passion manslaughter; only “manslaughter”
distinction from murder
- EEM
- personal situation 🡪 reasonable
reaction
** recklessly = negligent
homicide (with mens rea)
* MPC rejects involuntary

manslaughter
Voluntary Manslaughter
- Provocation: specific categories
* mutual combat
* adultery
* battery
* words (w/o violence) 🡪 NO
- “cooling” time a big factor
VI. UNINTENTIONAL HOMICIDE

A. necessary intent to kill/mens rea not present to convict under murder1
1. but harm was caused by defendant (causation)
a. the Δ’s actus reas resulted in death
i. many defendants will respond that death was the result of an “accident.”
b. type of act the individual engages in is more relevant than the mens rea
i. affirmative conduct not necessary; Welansky – did not start fire himself; Williams: omission of act
2. may fall under involuntary manslaughter or murder2
a. how distinguish which crimes will fall under which category
i. involves inferences and implications from the facts to determine mens rea of the crime.
ii. type of act indiv. engages in more relevant than his mens rea
(a) manslaughter only requires “recklessness or gross negligence” not malice; Welansky; State v. Williams; Mayes – husband threw heavy
beer glass at wife with no provocation, hitting the oil lamp and causing her to extensive burns which caused her death
(i) “extreme recklessness” = “abandoned and malignant heart” (Cal. Penal Code § 188) = equivalent “malice” under murder charge
necessary for MPC (doesn’t have involuntary manslaughter)
B. MODEL PENAL CODE (CB 434 - 436) - § 210.3 Manslaughter
1. § 210.3(a) treats reckless homicide as manslaughter
a. demands proof of conscious disregard of perceived homicidal risk.
2. § 210.3(c) person acts recklessly with respect to the death of another when he consciously disregards a substantial and unjustifiable risk
that his conduct will cause that result
a. nature and degree of risk must be such that, considering all the circumstances, its disregard “involves a gross deviation from the standard
of conduct that a law-abiding person would observe in the actor’s situation…”
3. does not have involuntary manslaughter – cannot deter the inadvertent actor from risk creation.
a. “liability for inadvertent risk creation is thus properly limited to cases where the actor is grossly insensitive to the interests and claims of
other persons in society.”
i. liability for manslaughter cannot be premised on negligence

(a) MPC punishes negligent homicide as an offense of lesser grade than manslaughter
C. Cal. Penal Code § 192(b) – Involuntary Manslaughter
1. in the commission of an unlawful act, not amount to felony, or
2. commission of a lawful act which might produce death in an unlawful manner, or
3. without caution or due circumspection.
4. Extreme recklessness vs. recklessness/gross negligence
a. prior offense taken into ksn
i. might have raised consciousness of risk
ii. disregarding information might constitute extreme recklessness
** DO NOT COMBINE NEGLIGENCE AND RECKLESSNESS 🡪 IF SHOWING RECKLESNESS, MUST CONVEY CIRCUMSTANCES THAT THE
INDIVIDUAL WAS AWARE OF THE RISK AND CONTINUED TO PROCEED (RISK WAS MADE CONSCIOUS TO ACTOR BUT DISREGARDED)
D. Vehicular Homicide
1. most states treat vehicular homicide as involuntary manslaughter
2. Cal. is different
3. Cal. Penal Code § 191.5(a) “Gross Vehicular Manslaughter While Intoxicated”
a. the unlawful killing of a human being without malice aforethought
b. in the driving of the vehicle
i. while in violation of the [drunk-driving] laws
c. killing was proximate result of the commission of a lawful act which might produce death in an unlawful manner and with gross
negligence…
4. Cal. Penal Code § 192(c) “Vehicular Homicide” (except as provided in § 191.5)
a. driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or…
b. driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence
** “Gross negligence” shall not be construed as prohibiting or precluding a charge of murder…upon facts exhibiting wantonness and a
conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the Cal.
SupCt. in People v. Watson, 30 Cal. 3d 290.
i. can constitute murder2 per Watson (implied malice) CB 461.
LO§ 191.5 vs. § 192
5.
OK
a. § 191.5 requires intoxication
FOR
DIF b. § 192 does not, but can
FER c. “commission of a lawful act” = driving
EN
T
WA
YS
TO
CO
NVI
CT
E. First-Degree Felony Murder (rejected by MPC)

1. no intent to kill the victim; only intent to commit the crime – benefit of the doubt that the killing was unintended (unintentional, or an
accidental/negligent killing)
a. “extreme recklessness” qualifies for a form of malice: (reckless act + mens rea = intent) 🡪 implied malice
i. enumerated felonies (most common: robbery, rape, burglary, arson, carjacking, kidnapping, train-wrecking) are all crimes against the
individual that require personal confrontation
(a). victim’s reaction to the crime is unpredictable
(i) their reaction has great potential to escalate the situation
2. “Theory” behind 1st degree felony murder: puts felons on notice that certain activites have great probability of resulting in death 🡪
felonies are enumerated
a. declares that the felony is sufficiently dangerous per se that a person committing it can be viewed as accepting the risk of murder
i. may deter prospective criminals from committing the felony (deterrence element)
(a) strict liability: circumstances of the crime are ignored
(b) intent to do the crime transferred to intent for f-m
b. In CA, cannot be convicted of 1st-degree f-m unless one of enumerated felonies is being executed
3. does not do away with “causation”
a. cannot be convicted under f-m without proving causation (that the felony caused the death) – People v. Stamp (CB 463): robbery
accelerated Mr. Honeyman’s (victim) condition.
4. no requirement that killing occur “while committing” or “while engaged” in the felony, or that the killing be “a part of” the felony, other
than the few acts be a part of one continuous transaction (CB 465)
5. Without 1st-degree f-m, murder1 conviction would be near impossible (as applied to Stamp)
a. “abandoned and malignant heart” – Murder2 (for conscious disregard of Honeyman’s overweight and out of shape condition)
b. “without due caution of circumspection..” – Involuntary Manslaughter under Cal. Penal Code § 192
F. Misdemeanor manslaughter (2nd-degree f-m) (adopted by CA)
1. rejected by MPC and majority of states
a. contention: “dispense with proof of culpability and imposes liability for a serious crime without reference to the actor’s state of mind”
(CB 476-477)
2. available for any unlawful act, not only misdemeanors; misdemeanors mala in se (an act that is inherently immoral) rather than mala
prohibita (act is criminal merely by statute, although not necessarily immoral)
3. parallels f-m
a. if actor unintentionally causes death while performing unlawful act (not enumerate felony), state can prosecute under involuntary
manslaughter – U.S. v. Walker (CB 475): Δ didn’t have license to carry gun, dropped it when loaded, gun discharged and killed a bystander.
i. “presumption…of recklessness” (CB 466 n.2) kind of substitutes f-m 🡪 no surprise that a death resulted from reckless conduct (high
probability of the conduct going awry)
4. characterization of crime depends on jdx
a. Majority: considers the felony in the abstract, including CA (CB 483)
i. must not be an enumerated felony and “inherently dangerous” in the abstract – People v. Patterson: furnishing cocaine (possibility of
overdosing inherent in cocaine use) CB 483.
(a) forget the facts, only important that the action carries a high probability of death (Patterson) (in the abstract)
(i) considering facts may lead to ‘inexorably to the conclusion that the underlying felony is exceptionally hazardous’ (CB 484) [CA law]
(b) CA measure “inherently dangerous” in the abstract by judging the probability of death
ii. inherently more complex b/c must develop notion that the felony is inherently dangerous in the abstract
(a) trad’l murder1 is easier to determine (has est’d elements)
b. Minority: some look at the way crime’s commission (CB 485)
i. circumstances of the commission and the offense’s abstract definition used to determine dangerousness – State v. Chambers: drunks stole
a car and killed 4 people; ct said: following “common law felony murder rule,” a felony can be the basis for 2nd-degree felony murder if done
in a sufficiently dangerous way
(a) gives evidence of Δ’s mens rea
G. Two Approaches to Felony-Murder (depending on jdx)
1. Proximate Cause Theory: must establish that the felony was over to avoid f-m
rule, that the death did not occur during the commission of the felony
a. as long as felony in progress, any death that occur will be assigned to the felon (including death of victim/bystander killed by
criminal/police) – People v. Hickman
i. includes “immediate flight” – People v. Gladman (CB 489): ct said that boundaries of “immediate flight” is unique to each indiv. crime
and thus to be determined by the jury
(a) not settled – Franks v. State (CB 490): f-m reversed for want of a causal ‘nexus’ b/w grocery store robbery, attack on the officer and the
child’s death; State v. Colenurg: f-m upheld when Δ killed child months after he received a stolen car and messed wit the VIN. (CB 491)
b. “Protected Persons” Doctrine – applies to both jdx (proximate and agency)
i. any innocent third party, doesn’t matter who the shooters was as long as innocent third party is killed will be assigned to felons
ii. victims by police shots assigned to felon
iii. if co-felons die, no one cares.
2. Agency Jurisdiction (CA): death can only be assigned to felons or their agents
– People v. Washington (CB 496), Justice Traynor: “to impose an add’l penalty
for the killing [of co-felon] would discriminate between robbers, not on the basis
of any difference in their own conduct, but solely on the basis of the response by
other that the robber’s conduct happened to induce.”

i. “Provocative Act” Exception for Felony-murder: look for behavior on Δ(s)’s part that would lead victim to believe that it is “now or
never” to resist and make an effort to save life (to use force) – Taylor v. Superior Court (CB 500)
(a) ‘provocative act’ will get the f-m charge (even if death was caused by non-agent of the crime or for death of co-felon); negates
“Protected Persons Doctrine”
(i) will make co-felons responsible for the acts of other agents (those who make ‘provocative acts”)
(ii) ‘provocative act’ = implied malice that triggers victim’s survival mode.
(1) in theory, then implied malice murder = murder2, but under Cal. Penal Code § 189, f-m constitutes 1st-deg. f-m (murder1)
(iii) if f-m unavailable, analyze “provocative act” under a malice theory
H. Limitations on the Use of Felony-murder
1. Δ must be guilty of the predicate felony
2. in CA, only enumerated felonies get murder1
a. MPC: there is a presumption of recklessness necessary for murder when committing on of the enumerated felonies
3. predicate felony must be independent of the homicidal act or collateral to homicide (e.g. cannot have continuous action toward homicide)
– People v. Moran (CB 501)
a. underlying felony must be independent of the killing or else merges with the homicide (CB 504)
i. if have continuous action toward the homicide, then have either murder2 or voluntary manslaughter, not f-m
(a) predicate felony’s objective cannot be to produce death
b. CA’s expressed “merger” rule: from People v. Ireland (CB 504): felonious assault could not be the basis for felony murder b/c it is
‘included in fact’ within the homicide.
4. “inherently dangerous” analysis for 2nd degree felony murder (manslaughter-murder) – (equivalent to “foreseeability of death” for f-m)
a. CA looks at the crime itself (e.g. furnishing cocaine)
b. jdx other than CA look at how crime was committed
VII. CAUSATION – direct application to homicide

A. Describing the phenomenon of people’s participation in crime in terms of causing the result
1. harm/death may arise from Δ’s actions/omission
a. failure to act may fulfill both legal and factual cause of the result
2. when a crime requires conduct but also a specified result of that conduct, the Δ’s conduct must be both “cause-in-fact” and the proximate
cause of the specified result
B. seeking to establish “proximate cause” – the legal cause
1. trad’l view: identify any and all possible causes
2. usually limits causation to results expected by the actor (e.g. MPC § 2.03)
a. do not always link a probability std. to the Δ’s requisite culpable mental state
i. necessary condition for the result may be proximate cause if it results regularly, predictably, or commonly, regardless of statutorily
required culpable mental state
b. MPC attempts to condition liability on the determination that actor’s mens rea caused the proscribed result
3. also shares a relationship with “chain of causation”/causal remoteness
a. Rules of Causation
i. hastening inevitable result
(a) an act that hastens an inevitable result is nevertheless a legal cause of that result
ii. Simultaneous Acts
(a) simultaneous acts by two or more persons may be considered independently sufficient causes of a single result
iii. Preexisting Condition (“Thin Skull” Rule)
(a) a victim’s preexisting condition that makes him more susceptible to death does not break the chain of causation
C. first identify factual cause; four limitations:
1. cause-in-fact
a. “but for” Δ’s actions, the harm would not resulted (a.k.a. “factual cause, de facto cause, or scientific cause)
i. how a person’s action someway contributed to the outcome
(a) must be the ‘imputable’ cause
ii. exception: simultaneous, sufficient conditions (“concurrent causes”)
b. only the first step, not ultimate inquiry
2. Foreseeability
a. requires a connection b/w actor’s culpable mental state and the result
i. injury resulting from reckless action must be one he “foresaw”
ii. often referred to as “proximate causation”
(a) victim’s death occurs in a manner not intended or anticipated by the Δ
(1) “All Natural and Probable Results” are proximately caused – Stephenson v. State: Δ kidnapping of a girl led her to commit suicide
3. Intervening Events
a. Intervening actions
i. premised on free will 🡪 individuals were the exclusive cause of their actions – Commonwealth v. Root (CB 308): deceased drove into
oncoming traffic in an effort to beat Δ in a race on the highway (ct. rejects tort law approach to “proximate cause” (CB 309)
(a) Cal. Penal Code § 408 Causation: Responsibility for Causing a Result: puts on notice that one may be held responsible for the reaction of
another if the reaction is predictable
ii. most cts view a lvl of medical malpractice as foreseeable with a likely-fatal injury (causation still valid)
(a) no causation if gross negligence or intentional mistreatment (e.g. superficial wound worsened by lvl of negligence
(i) supervening cause

b. scope of time
i. Common Law: “year and a day” rule – if victim dies within the time limit, death can be traced back to Δ’s actions
(a) CA has limitation of causation of 3 yrs.
iii. most jdx look to whether patient/person under care was under life-threatening situation anyways
c. CL trad’ly absolved Δ of causal responsibility if an “intervening” event “broke the chain of causation”
i. must be necessary for the harmful result
ii. subsequent to Δ’s act, and…
iii. not caused by Δ’s act
d. inconsistent with “foreseeability” standard 🡪 foreseeable intervening events do not break the chain of causation
e. intervening acts do not necessarily sever the result from the actor and excuse responsibility – U.S. v. Hamilton (CB 317): ct ruled
insufficient evidence that deceased would’ve survived if the tubes had remained (deceased had pulled them out) therefore Δ guilty of
homicide (manslaughter).
4. Duties
a. causal responsibility limited to those who have a duty to act resulting from:
i. statute
ii. status
iii. contract
iv. undertaking
VIII. CAPITAL PUNISHMENT/DEATH PENALTY

A. execution of accomplices requirements – Tison v. Arizona
1. accomplice must be a major participant in the crime AND…
a. S.Ct ruled that execution of accomplices “with no intent to kill” is unconstitutional
i. punishment is disproportional to the action
2. show a reckless indifference to human life (substitute for serious mens rea/ ”malice”)
a. per Tison, brother’s must show that they did something for the victims or attempt to stop their father
B. Mentally retarded indiv. cannot have same lvl of mens rea as typical criminal – Atkins v. VA
1. connection b/w decency and 8th Amendment
a. evolving stds. of decency ties with society’s perspective
2. if an otherwise properly convicted and sentenced Δ suffers mental illness before execution, cannot be executed
a. mental illness disables him from appreciating the connection b/w his immediate punishment and his crime
IX. ACCOMPLICE LIABILITY – parties to crime; requires @ min. proof that another person committed an offense
A. accomplices held liable for aiding or encouraging the offense of another
1. complicity depends on the occurrence of another offense, whether or not another is punished for that offense
a. is a doctrine, not crime 🡪 no “crime” of being an accessory
focus
b. a on mensof how indiv. may be charged for a crime that may have been committed by someone else
theory
rea/intention of offense flows from accomplice’s relationship to the perpetrator (CB 822)
i. liability for
rendering
(a) commonaid; law view: one became responsible for another’s crime by joining in it rather than causing it. (consents to a crime by aiding or
NOT the
encouraging the principal)
magnitude of
c. aider&abettor share the principal’s criminal intent (mens rea) State v. Ochoa (CB 830) – intent and purpose to commit the crime (MPC);
participation
U.S. v. Giovanetti (CB 857): aider and abettor must know that he is assisting an illegal activity; State v. Etzweiler (CB 866): no criminal
intent to cause accident, though knows that his friend was drunk
i. common defense is to challenge the requisite mens rea (“ I didn’t do anything…I didn’t practice the necessary mens rea of the acts.”)
(a) can still be held vicariously liable
2. level of participation does not relieve criminal responsibility
B. Common Law – focuses on “presence” (where was the actor at the time of the crime?)
1. Principals
a. principals in the first-degree: person who committed the actual crime/the offender
b. principals in the second-degree: in the proximity of the “principal in the 1st-deg.”; in the proximity of the commission of the offense
i. ex) the lookout, getaway driver
(a) close enough to the action, but not necessarily next to the principal 🡪 present at the scene of the crime
(i) presence could be constructive instead of actual
2. Accessories – could not be tried or convicted before the conviction of the principal in the 1st-degree
a. accessory before the fact: classic “mastermind”
i. gave aid and support
(a) aid must be successful (only CL)
ii. fate of “accessory before the fact” depended on the fate of the principal
b. accessory after the fact: indiv. did not know or in any way participate in the commission of the actual crime; not a participant in the
substantive crime
i. is not aware of the committed the crime until after it is committed, but renders aid
(a) establishes the connection to the crime
(b) rendering aid subject him to punishment
(i) usually a lesser degree
c. principals and accessories could only be convicted of the same degree of offense
3. considered an accomplice if join a crime-in-progress; not accessory after the
fact
4. all participants in treason considered principals (under CL)
5. accomplice liability for Misdemeanors
a. all participants considered principals except for “accessory after the fact”
i. no punishment for misdemeanors
C. Modern Approach (including MPC § 2.06) – disregards “presence”
1. modern statutes have largely eliminated common law procedural rules and distinctions
a. all parties to the crime face prosecution for substantive crime except for accessory after the fact
i. only break accomplices might get will be in sentencing
b. principals need not be convicted, tried, or apprehended for accessory to be tried/convicted
i. state must only prove that criminal acts occurred
c. principals and accessories could be convicted of different degrees of offense – Pendry v. State (CB 878): two brothers both present during
murder, but Tim got manslaughter (evidence of emotional distress), brother Kenneth got murder1.
2. evaluates the nature of aid offered: verbal, physical, psychological – State v. Ochoa
3. omission to act may support the criminal objective
a. at CL: “misprision of felony,” nondisclosure or concealment of a known felony (a federal crime in U.S.)
i. affirmative act not required by Δ to aid the principal
(a) jdx differed in its requirement whether affirmative concealment or passive concealment needed to be proven
b. modernly, most cts punish only affirmative conduct to conceal crime or principal from gov’t – MPC § 242.3 - .5 (CB 834)
i. MPC does not have a formal “accessory after the fact”
c. omission of a duty to act may impart criminal responsibility
4. necessary to have knowledge of the criminal act
a. an “innocent” 3rd party, a.k.a. “the dupe”
i. have no idea that their actions are aiding & abetting a criminal act; truly did not achieve knowledge
focus on the interpretation
(a) then not considered an accomplice despite they may be lending considerable mount of physical assistance (assistance is immaterial)
of clues an indiv. is
(i) no with
contronted knowledge
in the fact of the nature of aid negates the required sharing of “specific intent” w/ the principal 🡪 does not have the required mens rea
pattern. DO NOT ii. possible for principal1st to take adv. of a person’s “dupe” status
implement the “should have (a) then becomes “crime by instrumentality”
known” analysis
b. “mere presence”: insufficient to est. someone as an accomplice
i. must determine the actor achieved state of knowledge of the criminal act and continues to aid the indiv. in light of the known info – Gains
v. State (CB 834): ct ruled “wheelman” lacked knowledge/ info to infer that he knew his passengers had committed a bank robbery.
c. knowledge of crime in and of itself insufficient for accomplice liability

i. modern increasingly common approach is to required special mens rea for aider/abettor – knowledge or purpose that one’s conduct will
have the effect of facilitating or encouraging the crime in question. Determined by three factors (CB 850):
(a) conduct, attendant circumstance, and result elements of the principal’s offense
(b) likelihood that accomplices’ actions will encourage or assist principal
(c) principal’s culpable mental state
ii. need knowledge and intent/purpose to help – People v. Beeman (CB 851): Beeman had knowledge, but no intent to help? (must have had
a good attny)
5. MPC § 2.06
a. must have intention to accomplish something for accomplice liability
b. allows actor to terminate potential exposure as an accomplice
i. by withdrawal before commission and deprives the effectiveness of his aid in the commission of the crime or
ii. give timely warning to law enforcement or otherwise makes an effort to prevent commission of the offense
(a) to be effective, may not be done anonymously
(b) must communicate the termination for the withdrawal to be effective
iii. most jdx do not allow such leeway
(a) no formal provision for withdrawal
(i) once shown to have involved in crime/planning, may be held as an accomplice
D. the “feigned” accomplice – not interested in successful completion of the crime; wants the crime to fail
1. appears to assist in the crime, but actually the one who alerted the authorities.
2. can be charged as an accomplice for acts
a. but fails b/c of the necessary mens rea
3. wanted successful prosecution of the perpetrators
E. accomplice may be charged even if principal is dead, immune from prosecution, not charged, or not identified (CB 877-888)
1. accomplice liability exists even if principal is excused
a. defenses, if applicable, also available to the accomplice
i. perpetrator is excused (insanity)
a. Penry v. State – brothers accused of same crime; one gets manslaughter for showing extreme emotional distress while his brothe did not
(brother got murder1)
ii. perpetrator is justified (self-defense)
a. many American jdx condition defense of “justification” on the Δ’s reasonable beliefs rather than the actual results of Δ’s conduct
iii. principal lacks mens rea
a. perpetrator actions excused (done under duress)
(i) accomplice might not

(a) discrepant mens rea
iv. principal has not committed or could not commit the criminal act
a. resembles a legal impossibility
(i) General Rule: if a perpetrator’s conduct does not fulfill the act element of the offense, there is no offense and so no complicity
X. INCHOATE OFFENSES – all require a demonstration of the individual’s attempt

A. requires highest form of mens rea (specific intent 🡪 MPC’s “purposely”)
1. an absolute commitment to accomplishing some act
B. ATTEMPT – law punishes attempt not for the mere desire to commit crime (mens rea), but because there is substantial act toward the
completion of the crime (actus reas)
1. requires specific intent
2. gives prosecution something to charge if causation fails
a. when clear indication actor had intent to kill (through facts or conduct) and give info despite his effort, victim does not die from actor’s
particular means
i. causation shows that focused actor is not the cause of person’s death
ii. when legal/proximate cause unavailable, look at actions and specific intent to infer attempt
(a) connection b/w attempt and causation
2. “legal impossibility” (no attempt) – Booth v. State (CB 793): Δ could not be guilty of attempt to receive stolen property when the property
in question had already be recovered (lost its “stolen” characteristic)
a. the act, even completed, would not be criminal
i. an affirmative defense
3. “factual impossibility” (attempt) – State v. Haines (CB 803): attempted murder convictions upheld for two HIV-positive inmates, tried to
transmit the virus by biting guards, even though HIV cannot be transmitted by biting.
a. substantive crime impossible to complete b/c of some physical or factual condition unknown to Δ
4. still allows “mere preparation”
a. a substantial step taken toward the completion of the crime will carry the act from “mere preparation” to attempt (crossing the line)
mere
i. preparation + overt act
attempt
b. determining when act is more than “mere preparation”
preparation
i most jdx adopt some form of “proximity test” (CB 767 – rejected by the MPC)
(a) Proximity test: how close does actor get to actually completing the crime?
(i) not how far actor has come from preparation
(b) Indispensable element: gauging whether actor(s) has gained control of elements/factors necessary to accomplish the crime.
(c) “but for interruption”: unless an unexpected event occurs, action flows toward the execution of the crime
(d) abnormal step: crosses a pt. where a normal person, who could have been playing with the idea, would not have crossed
(i) crossing the point indicates actor’s intention to commit the crime
(e) res ipsa (unequivocality test): the acts are unambiguous; nothing equivocal, the intent is apparent
ii.likesMPC
Smith test –todoesn’t
MPC approach Attempt; gauge how far actor has come to completing crime
(a) examines a “substantial step”
need to know for the essay portion
(i) distance actor has traveled whether or not is a substantial step in direction of accomplishment of the target crime
(1) no requirement for the Δ to come close to completion
(b) does not recognize “legal” and “factual” impossibility
(i) the distinction is a fallacy
(ii) whole point of attempt is culpable mens rea
(1) punish those who are willing to break the law/have the will to engage in behavior and try accomplish something that is dangerous to
society
(b) MPC § 5.01 Criminal Attempt
(i) allows prosecution to charge attempt earlier, before an actual material attempt takes place
(ii) allows renunciation of the decision to do the crime; abandon the attempt even after attempt has been completed - § 5.01(4)
(1) under modern law, trad’l approach does not allow abandonment of attempt
5. attempted crimes merge into complete crimes
a. Burglary does not merge
i. if successful, get burglary + (felony)
b. once crime completed, cannot renounce (can’t go back and return something you stole)
C. SOLICITATION
1. actor with specific intent acted on trying to induce somebody to join in the crime
a. no requirement that the person solicited agrees or accepts
i. crime is complete once solicitation is made
2. solicitation merges with the actual crime
a. may become conspirator or accomplice to the substantive crime
3. many jdx do not have a universal solicitation statute
a. usually very specific crimes are restricted under a solicitation statute (e.g. murder, treason most common)
4. usually solicitation cannot be abandoned
a. MPC allows renunciation of solicitation (§ 5.02(3))
i. immaterial if the solicitation is passed along and actor fails to communicate with the person he solicits to commit the crime (§ 5.02(2))
(a) reception of solicitation not important; the fact that it was sent out is reprehensible enough
5. common defense: trying to negate the mens rea (specific intent)

a. the “just kidding” defense, or “ I was just venting steam”
D. CONSPIRACY – a tool of inference in absence of hard evidence
1. modernly, does not merge into the substantive crime (offense + conspiracy)
2. Common law: Agreement of at least 2 or more people able to and intending to agree to intend to accomplish a criminal or unlawful
purpose. (carry out the purpose which is the stated object of their combination) CB 944 🡪 bilateral view
a. at common law, husband and wife COULD NOT be charged as conspirators with each other
i. reasoning: husband and wife seen as one person in law, having one will
(a) conspiracy required at least two people
b. not necessary to know all conspirators; knowing indv. roles sufficient
c. measured within the terms of specific intent to carry out the crime
i. the agreement makes the commission of the crime more likely to be carried out 🡪 conspiracy committed absent actual criminal act – State
v. Verive (CB 896) “Primary focus of the crime…”
(a) agreement with specific intent sufficient to est. conspiracy (required mens rea)
(i) must have evidence of actual agreement
(1) usually not blatant agreement (tacit)
(ii) Δ’s best defense: he did not have specific intent to do the criminal act – People v. Lauria: having knowledge of his customer’s
occupation (prostitutes) and continuing to provide them with messaging service
(1) intent may be inferred from knowledge when:
a. purveyor of legal goods for illegal use has acquired a stake in the venture (motel mgr. charging more for prostitutes)
b. when no legitimate use for the goods or services exists
c. when the volume of business with the buyer is disproportionate to any legitimate demand, or when sales for illegal use amount to high
proportion of seller’s total business – Direct Sales (CB 916)
(b) requires no actual step toward the commission of the crime
(i) only need to prove the agreement
(1) requires less to convict than “Attempt”
d. some actors, for some reason, may be ineligible as a conspirator
i. insane person (+ all affirmative defenses if available)
ii. undercover police
iii. the proverbial “dupe” – not acting in furtherance of the conspiracy
e. does not have to be agreement to a criminal act (e.g. “substantial step” under attempt) (CB 902-903)
i. could agree to do a lawful act in an unlawful manner – North example: Lt. Col. North charged with conspiring to violate intent of
Congress (by assisting Contras, Nicaraguan rebels), but Boland Amendment did not carry any criminal sanctions
f. some jdx only require the agreement – S.Ct. said that “criminal agreement itself is the actus reas”; U.S. v. Rahman (CB 909): Δ contended
that his blindness incapable of participating in aspects of crime but ct ruled that it was sufficient for the Δ to join in the illegal agreement
i. most jdx require “agreement” + “overt act”
(a) “overt act” can be almost anything, not necessarily criminal – in Verive, driving to Galvin’s (the witness/victim) home
(i) adds to proof
(ii) if “overt act” can be shown, harder for Δ to contend that agreement was merely talk
(iii) same action cannot be used for different crimes (attempt, conspiracy) 🡪 double jeopardy
(1) determine possible double jeopardy violation with Blockburger test (examine the elements of the crime): each charge must have at least
one element of the crimes that are not shared (CB 896)
(iv) any overt act attributed to all co-conspirators (the whole group) so long as it is done in furtherance of the crime 🡪 vicarious liability
g. relative contribution irrelevant as long as Δ was in agreement and rendered some sort of aid
(i) by joining conspiracy, Δ inherits all previous crime the group committed previous to Δ’s agreement
3. MPC § 5.03
a. under MPC, attempt and conspiracy cannot be charged concurrently (CB 898)
i. must choose either, but not both
b. many jdx let prosecutor to charge both attempt and conspiracy
i. if separate crimes, can be separately punished
(a) “stacking” the sentences
c. rejects Pinkerton
(a) no special complicity rules for conspirators
(i) conspirator should be measured by same std. of legal accountability for conduct applicable to any other indiv (CB 939)
d. adopts unilateral
remember this approach: intent to commit crime is enough mens rea to hold actor accountable regarless of the intent of co-conspirators
4. Withdrawal
for the test from conspiracy
(MPC jdx)a. Majority Rule
i. requirements:
(a) withdrawal must be notified to co-conspirators
(i) not req’d to notify all, but at least some
(b) by engaging in acts inconsistent with the objects of the conspiracy
(c) no req’ment to convince other co-conspirators to abandon the conspiracy
(d) no req’ment that he expose conspiracy to public authorities or expose conspiracy to prevent the carrying out of the act involved in the
conspiracy
(e) reqs. that a Δ completely abandon the conspiracy
(i) must be done in good faith
ii. still liable for previous agreement and for previous acts of co-conspirators in pursuit of conspiracy
(a) stops ability for subsequent additional crimes to be assigned
b. MPC § 5.03(6)
i. “complete and voluntary renunciation of the criminal purpose”
(a) cannot withdraw when pos are approaching
ii. withdrawal is an affirmative defense only when Δ has “thwarted the success of the conspiracy”
5. Pinkerton rule: a party to a continuing conspiracy may be responsible “when the substantive offense is committed by one of the
conspirators in furtherance of the conspiracy even though he does not participate in the substantive offense or have any knowledge of it. (a
form of vicarious liability)
a. conspirator may be found guilty of substantive crime unless that crime “could not be reasonable foreseen as a necessary or natural
consequence of the unlawful agreement”; not foreseeable, not in furtherance of the conspiratorial objective
i. a theoretically viable defense against acts of co-conspirators being added to Δ
b. applies to corporations
i. doctrine of respondeat superior: holds an employer or principal liable for the employee’s or agent’s wrongful acts committed within the
scope of the employment or agency (CB 975-983)
(a) vicarious liability under conspiracy (acts of one are attributed to the whole)
6. Hearsay rule – forbids the admission of evidence given by a witness as to what someone said off the stand when the probative value of
that evidence depends on the credibility of the out-of-court declarant (CB 939)
a. Exception: statements made by a conspirator in the course of/furtherance of the conspiracy are authorized by all his/her co-conspirators,
therefore admissible against them as admissions, so long as trial judge satisfied by a preponderance of the evidence that a conspiracy does
exist
7. Wharton’s rule: If the definition of the substantive crime assumes that at least two people will agree to commit it (e.g. adultery, incest,
bigamy, dueling), it would be unfair “double-counting” for the state to charge conspiracy as well.
a. possible to have more than one conspiracy arising from one act
8. Policy
a. presence of more than one actor makes the attempt less likely to be abandoned and the division of labor among conspirators makes it
more likely that the attempt will succeed (CB 899)
i. conspiracy may be aggravating factor in substantive crime
(a) criminal law assumes that a grp planning to commit a crime poses a special danger to the public welfare – Callanan v. U.S. (CB 901):
“the danger conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.”
(i) support and cooperation of co-conspirators increases probability of criminal conduct for each participant
(ii) increase social damage members can do
(iii) hard for police to apprehend them
XI. RAPE – general intent crime

A. Common Law
1. def: sexual intercourse “by means of force, against the will of the woman and
without her consent.”
a. state had to prove very overt force
i. easier to establish involving rape b/w strangers
(a) Δ often used weapon or assaulting violence
ii. b/w nonstranger rapes, cts use victims’ resistance as indicator of assailant’s force and victim’s nonconsent
(a) “utmost resistance” requirement – Brown v. State: ct suggests if victims does not fight, then the rape was not against her will. (CB 1082,
1083)
2. rarely specified required mens rea beyond awareness of the act
3. highly regulated and restrained sexual intercourse
a. could be prosecuted of “fornication” for sex out of marriage
i. women would have to show that they lacked mens rea
(a) sex = rape when induced by fraud in the factum
(b) or mistake of fact
(i) believing she was having sex with husband
(c) committed unlawful intercourse under duress
(i) resistance standard element
4. CL: NO spousal rape
5. statutory rape dealt with as strict liability
a. age a sentence enhancer (CB 1126)
B. Traditional Statutory
1. force or threat of force
a. gives victim a chance to explain why she didn’t struggle
2. non-consent
a. under intoxication
i. consent given under voluntary intoxication ≠ rape
ii. consent given under involuntary intoxication = rape
3. reasonable resistance
4. NO spousal rape
C. Cal. Penal Code
1. does not have degrees of rape (minority jdx)

2. “consent” (Cal. Penal Code § 261.6): positive cooperation in act or attitude
a. Rape (Cal. Penal Code § 261): subsections (1) – (3) says that Δ accepted consent they should not have b/c of the victim’s inability to give
real consent
i. subsection (1): person is incapable, b/c of mental disorder or developmental or physical disability, of giving legal consent
ii. subsection (2): where consent is acquired against person’s will by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person or another
(a) “duress”: direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person to perform an act
which otherwise would not have been performed
iii. subsection (3): person prevented from resisting by any intoxicating or anesthetic/controlled substance, and this should have been known
by accused
(a) Δ may have received consent, but it should not have been accepted b/c of victim’s inability to give real consent
(b) voluntary intoxication by the victim voids her consent
(c) a minority approach
iv. subsection (4): accused knows that the person is unconscious
b. at the point of consent is withdrawn, continuing with sex constitutes rape
i. could have consented to initial penetration
3. Statutory Rape (Cal Penal Code § 261.5)
a. CA allows a reasonable mistake of fact as a defense
b. may have consent, but the consent is void
4. CA has spousal rape
D. Model Penal Code
1. No spousal rape
2. incapacity to consent may expose one to rape
a. mental disability (Gross sexual imposition – MPC § 213.1(2))
i. imposing sexual intercourse by means of fraud/coercion, or with knowledge of victim’s mental disease or defect which “renders her
incapable of appraising the nature of her conduct” (CB 1125)
b. unconscious at the time of the act
i. MPC § 213.1(c)
c. youth – Statutory Rape
d. intoxication
i. MPC § 213.1(b) – traditional view is that the victim was made intoxicated unbeknownst to her, then rape
(a) voluntary intoxication is not a defense (CB 1125)
3. MPC has differing degrees of rape (1st-3rd)
XII. ARSON
A. general intent crime
B. at common law, required that the burning be of a structure/dwelling house (similar to burglary statute)
1. must be a willful and malicious burning
a. malicious = extreme recklessness (sufficient to establish malice)
i. similar to malice under homicide
2. modern jdx do not require the structure to be a dwelling
a. CA includes any structure, forest land or property
i. becomes important for felony-murder
XIII. THEFT
A. Robbery – combination of larceny with force/threat of force [force / (fear element) + larceny]
1. requires the thief take the personal property of the victim from his presence or person
a. different with burglary where the person need not be around
2. falls under “crimes against the person”
3. Common Law
a. felonious taking and carrying away
b. personal property of another
i. the person robbed doesn’t necessarily have to be the owner of the item
c. by force or threat of force
i. force/threat of force induces owner to relinquish possession
d. from the person or in the immediate presence of the victim
i. no robbery if item not removed from the presence of the victim 4. under MPC, robbery possible even if person fails to take
property of the victim
B. Larceny – formed after robbery (Specific Intent)
1. crime against “possession” not necessarily ownership
a. owner of property can be guilty of theft of own property
i. someone may have superior right to possession (e.g. taking a car from the mechanics without paying)
(a) taking of possession
b. usually not taken by force
i. more likely that stealth employed
2. requisite mens rea: actor must believe he is taking the property of another
a. if actor believes that he is taking property that is his with some claim of right, negates mens rea
i. specific intent necessary for larceny
3. at common law, prosecutor had to get the specific type of larceny and its elements correctly to get conviction.
a. modernly, “theft” serves as an umbrella (consolidated theft schemes
i. if any crime committed under theft umbrella, then guilty – larceny, embezzlement, false pretense, and perhaps extortion as single offense
of “theft”
(a) modern approach adopted by MPC and CA
4. Common Law – timing is of crucial importance
a. a “trespassory” taking and carrying away of property;
i. “trespassory”: at the very least a taking possession without the owner’s consent
(a) could be either force or stealth
ii. violated victim’s rights
(a) Δ’s actions against consent/knowledge of the holder of
property
(i) anything that detracts from trespass element ruins larceny charge
iii. “taking” requires that thief acquire total dominion and control over the item
iv. “carrying away”/asportation element – requires movement of the object
(a) any slight movement sufficient
b. from the possession of another;
i. implies once thief acquired possession, he could forcibly defend the goods with the intent to retain them
ii. the moment possession passed to thief crucial in determining thief’s criminal liability
iii. must be “personal” property – something moveable
(a) larceny cannot be committed over “services”
(i) “taking of services” different crime under common law
(1) MPC criminalizes theft of services
(b) real estate, anything in soil also not personal property
(i) exception: if plant has been uprooted and left on property for an appreciable length of time, then converts into personal property
c. with the intent to permanently deprive the owner of that property
i. specific intent to take it / keep it / destroy it 🡪 any form of permanent deprivation
(a) b/c specific intent requirement, mental impairment valid defense
ii. purpose can be to prevent owner from deriving benefit from his property
(a) destroys it value of use to the owner
(b) getting reward / refund actor not entitled to – People v. Davis: Δ went to Mervyn’s and tried to receive refund for a shirt he never took
from the store
5. modern larceny statutes focus on misrepresentation of material facts to induce the owner to hand over property
a. misrepresentation substitutes for the traditional trespass requirement under larceny
i. “trespassory taking” includes (CB 1029)
(a) a physical movement of the object
(b) a taking from the possession of another, and
(i) possession vs. custody
(1) when someone looks as if he has possession but does not, the law says he has mere custody of the object (CB 1029)
(2) employer temporarily entrusting goods to an employee or customer still retained “possession” until sale was complete (CB 1024)
(c) an act contrary to the will of the owner
b. criminal liability had increasing emphasis on actor’s subjective intent
c. “Larceny By Trick” – thief acquires possession only
i. taking and carrying away
ii. possession of another
iii. by trick or device (misrepresentation of a fact)
iv. with the intent to permanently deprive owner or possessor
(a) the intent to steal overcomes the immunity provided by rightfully acquiring possession
d. “Larceny By False Pretenses” - thief obtains title and possession
i. Common Law
(a)misrepresentation of a present/past fact
(i) “false pretense” two possible meanings
(1) deception of the external rule (objective misrepresentation) – e.g. Δ’s credit status or quality of goods for sale
(2) misrepresentation about one’s intention
a. in some states, borrowing money with intent not to repay sufficient
b. receipt of money satisfies element of acquiring title
(b) knowing the misrepresentation is false
(i) possible for “attempted larceny by misrepresentation): crime not completed because of technical reason that victim did not rely on false
misrepresentation
(c) which induces the Owner to part with title
(i) victim must rely on / believe the false pretense – People v. Whight (HO); People v. Sattlekau (1041)
(1) insufficient that thief made misrepresentation
(2) no requirement that victim investigate thief’s statements / representations
a. need only factually demonstrate that victim did rely on misrepresentation

(ii) does not require dialogue – People v. Whight
(d) with the intent to defraud (to cause injury or loss by deceit)
e. “Embezzlement” – a later statutory refinement of the common law crime of larceny; differs from jdx to jdx
i. is different, because at the point of acquisition of the property, the actor did not induce the other to give over the property
(a) actor is usually entrusted with the property (legal acquisition)
(b) does not concentrate on the point of acquisition
(i) when actor breaches the trust and goes against the wishes / expectation / understanding of the possessor
(1) converts property to uses not allowed by the owner (must go against the rules / regulation / agreement)
(c) does not require an intent to permanently deprive
ii. legislative scheme typically require
(a) offender has been entrusted with the object by the owner, or at least have possession at the time of the offense
(b) a subsequent act of deprivation
(i) usually termed conversion or fraudulent appropriation
iii. Common Law
(a) fraudulent conversion
(i) if thief knows of unilateral mistake and takes advantage of it, then equivalent to reaching in pocket and stealing – People v. Whight
(b) of personal property of another
(c) by one already in lawful possession
f. “Extortion”
i. does not have to be theft of personal property
(a) can take service the victim normally would not give
(b) can be any benefit conveyed upon the extortionist
ii. involves benefits other than personal property and expands the nature of threats
(a) threats for the future included
(1) innuendo is sufficient
(b) blackmail
(i) unfair bargain where you know the type of threat would induce someone to prevent it from happening
(1) act threatened does not necessarily need to be illegal
iii. requisite mens rea: intent to threaten injury/disgrace/dishonor in exchange for compensation (not necessarily money)
(a) not bargaining in the usual way
(i) comes from more fear of threat than consideration
(1) concentrate on the use of fear, not causing fear
iv. extortion vs. robbery

(a) extortion: threats of future harm intended to induce the victim to relinquish property
(b) robbery: threat of force must be “immediate” or “imminent” in relation to completed or attempted larceny
5. completed larceny even if actor replaces item
XIV. Defensive Force

A. Prosecutor: case-in-chief at trial 🡪 brings charges
(**
B.
be
an affirmative defense and its requirements imposes burden on Δ and their counsel
tte 1. Δ most likely have to testify
r 2. no requirement for Δ to put on a full formal defense
to a. cross-examination of prosecutor’s witnesses may create enough doubt
bu b. “Elemental Defense”: Δ tries to show that a required element is missing
ild
i. challenge identity
pr non-
os affirm (a) not an affirmative defense
(i)
ec trying to show that
ative prosecution cannot make necessary connections of crime to the Δ
defen
ut ii. actus
ses, reas
or’ but (a) try to show that act was not voluntary
s popul
iii. mens
ar rea
ca gener(a) absence of requisite mens rea is a defense to the crime
se al
an iv. defen
causation
d ses (a) if or when proof of causation is required
th
C. Defense case: defense has burden of proving the elements of its affirmative defense to prevail
en
1. prosecutors usually likes these because the mechanics (actus reas, causation) are all conceded
kn
a. Δ wants to explain his actions
oc
k2. virtually all affirmative defenses addresses answering the question: Why?
ita. defense still takes on the burden of proof
3. if defense fails in establishing affirmative defense, then Δ not given jury instruction
do
wa. assumed as an intentional killing if the full affirmative defense is not achieved
n)
i. Δ may have misjudged reaction/situation
4. justified vs. excuse CB 583
a. justified killings more noble than excuse
b. both have same result
D. DEFENSIVE FORCE: SELF-DEFENSE

1. directly related to homicide
a. doctrine of balance and proportion (reaction to perceived threat)
in a fact pattern, i. cts allow Δ’s possible mistake
evaluate
reasonableness of (a) must be reasonable
actor’s response (b) also depends on what type of mistake
to the perceived
threat and his 2. Inmates not afforded the defense
calculation of 3. defenses allowed when indiv. is faced with direct force
danger
a. Perfect Self-Defense: acquittal, defeat the charges (fully justified)
i. use of deadly force MUST involve a perception of a threat of deadly force being inflicted or threatened – People v. La Voie (n.3 CB 579)
(a) may not be used in defense of property
(1) mechanical devices cannot be used because they cannot discriminate the culpability of the intruder (intruder may be law enforcement,
firefighter, etc.) – People v. Ceballos (CB 632)
(2) “Where the charater and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of
human life or for the use of deadly force” (CB 634)
b. Imperfect Self-Defense: a failure of one of the elements on some level
i. in CA, then get voluntary manslaughter
(a) regular voluntary manslaughter: highly emotional, flawed, but surrounding circumstances understood by the court
(1) usually deceased had pissed off Δ
(b) a conviction arising from the defense usually indicates that the circumstances may have justified Δ to act, but something about the
reasoning was flawed
(1) response is unreasonable
(c) under MPC person who misconstrued facts may be found guilty of some level of homicide.
(1) Δ could be prosecuted of manslaughter (reckless in construing the facts)
(2) negligent homicide rather than purposeful murder
(d) majority of jdx adopt all or nothing: either achieve perfect affirmative self-defense or nothing (then some level of homicide)
ii. Δ’s judgment of situation and his response come under scrutiny
4. Elements
a. threat
i. reasonable mistake allowed
(a) assessing reasonableness requires going to the facts and supporting the actor’s perception
ii. Δ cannot create a condition for own defense (CB 621) – “Where the actor is not only culpable as to causing the defense conditions, but
also has a culpable state of mind as to causing himself to engage in the conduct constituting the offense, the state should punish him for
causing the ultimate justified or excused conduct.” (CB 622); U.S. v. Peterson: ct found Δ formed intent when he went back inside to get a
gun and telling the deceased to stop as deceased was retreating (CB 619)
(a) Aggressor Doctrine: aggressor can defend himself if the responding party escalates the situation or if aggressor has tried to withdraw
(1) contradicts trad’l view that aggressors are not afforded privilege of self-defense for something they instigate
b. imminence
i. reasonable mistake allowed
ii. Issue: what constitutes imminence? – e.g. BWS, People v. Goetz: prosecution questioned if it was absolutely necessary for Δ to shoot
(had testified that just flashing the weapon had a deterrence effect on would-be muggers)
c. response must be proportional to the perceived threat
i. Issue: was the actor’s response reasonable?
5. must know whether jdx adopts a subjective or objective analysis (CB 585)
a. subjective: thru the eyes of the actor – People v. Goetz: Δ’s actions were based on his past experiences of being mugged
i. circumstances sufficient to induce the accused to from an honest and reasonable belief that force was necessary to defend himself against
imminent harm – State v. Leidholm: Δ needed to introduce Battered Woman Syndrome to address the lacking element of “imminence”
b. objective: factfinder views circumstances surrounding the accused from the standpoint of a hypothetical reasonable and prudent person
6. Retreat – duty to retreat if there safe possible way of doing so?
a. Elements where retreat not necessary.
1. In Home
2. Making a lawful arrest
3. Robbery
b. traditional retreat rule: a person assaulted in his dwelling need not retreat before using deadly force even if a safe opportunity exists
i. majority of courts have expanded “castle” exception to cover business premises
c. minority of American jdx adopt a retreat doctrine
d. Model Penal Code adopts a retreat rule
i. not when defending against death or great bodily harm from a co-occupant of the dwelling (MPC § 3.04(2)(b)(ii); CB 609)
7. Common Law allows one to repel an unlawful arrest
a. MPC does not
8. Defense of 3rd parties
a. can use defensive for if it is a self-defense situation (3rd party or law enforcement)
b. Common Law: can choose to help at actor’s peril (reasonable mistake was not allowed)
i. most modern law jdx allow reasonable mistake
c. no requirement for the actor to share a relationship with the person he is aiding
i. still obligated to keep response proportional
d. MPC allows defense of 3rd parties
re:
choi
E. DEFENSIVE FORCE
ce
1.
of
Elements
a.
evils Without fault
,b. Unlawful force
c.
mus Threat of Imminent Death or Great Bodily Harm
t2.be Battered Wife
able
3. Law Enforcement/Private Citizens for Escape
to
a.
i.d. Force must be reasonable.
b.
the Reasonable only if threat of death or serious bodily harm and deadly force is necessary to prevent escape.
c.
spec Ex: Garner: Officer cannot use force for an unarmed, non-dangerous felon that poses no threat to officer.
ific
d. Same limits for private citizens except escapee must be actually guilty of offense.
pote
4. f
ntial
F.
har
DOCTRINE OF NECESSITY (choosing the lesser of two evils)
m1. ifJustification of Necessity: society acknowledges that the threat of danger the actor faced forced him to choose to break some other law
which was less onerous than the act he confronted 🡪 a choice of a “lesser evil”
the
Δa. society must endorse that the actor break a law to avoid a greater harm
face
b. the harm or evil
d if
2. a more objective view
he
a. must be acceptable by society
did
not weighs the reasonable choice of conduct actor had rather than breaking the law
b.
i. whether actor’s identification of the threat or reason for having done the act justifies the response he chooses
act
the
(a) essential for actor to truly believe that his choice was the lesser of two evils
way
(1) situation forces the Δ to make a choice – People v. Unger: Δ was forced to choose between two admitted evils by the situation arising
he
from actual and threatened homosexual assaults and fears of reprisal
did .
3. threat not necessarily posed by other individuals

a. could be brought about by nature/situations – State v. Warshow: Δ’s argued that inherent danger of nuclear power plant (ct ruled that
defense failed)
i. in many political situations, Δ will use defense of necessity to gain media attention
(a) prosecutor makes argument to ct that the Δ’s argument will not sustain the necessity defense
(1) judge can then ask to see what Δ has to determine whether Δ has a valid defense of necessity
4. Basic elements of necessity (per State v. Warshow ct.) (CB 656)
a. must be a situation of emergency arising without fault on the part of the actor concerned
b. this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those
he was protecting; Necessity will only justify criminal behavior if the danger intended to be prevented is imminent.
c. this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and
d. the injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong
5. Warshow: CONCURRENCE: (Hill, J.) Each evil must be evaluated to reach an appropriate conclusion. DISSENT: (Billings, J.) The
danger was sufficiently imminent to justify the trespass of D.
6 Except in self-defense cases, one person cannot kill another to save himself. There is no unqualified justification for self-preservation.
Queen v Dudley: Cannibal Life boat case.
G. DURESS
1. differs from defensive force because the offense is committed to further rather than to resist the criminal project of the aggressor (CB 663)
ev is an excuse, not justification
a. duress
en
i. deflects
if responsibility for a coerced wrongful act from the perpetrator onto the person who coerced it
affi
(a) argument is that fear rendered the actor blameless/undeterrable
rm
(1) duress
ativ negates requisite mens rea
ii. available
e only when no other reasonable opportunity to escape or withdraw from the threatened danger.
def
(a) Ex.enCrawford: D was addicted to cocaine and threatened to commit robberies, burglaries, etc for drug dealer. D attempted to use duress
defensesebut couldn’t b/c he had opp to escape.
not
avb. traditionally limited by some consideration of proportionality
i. usually
aila fails if Δ’s offense was too great or the threat was insufficient
ble
,
(a) murder never excused by duress defense
ii. However
still the defense of compulsion is available for a charge of felony murder
(a) Ex: ca
n
Hunter- Hitchhiker D was picked up by wild men, they shot a cop then later kidnapped a person, it was held that D Any limitation to
the defense
us of duress should be confined to crimes of intentional killings done by another during the commission of some lesser felony. If D
e
the
diff
ere
nt
lev
el
of
me
was forced to kidnap under threat of bodily harm, then he has a defense to the underlying felony murder if one of the party kills another in
the commission of that inherently dangerous felony.
c. if duress defense successful, then acquitted

i. not guilty of any lesser crime
2. Common Law
a. duress defense required the alleged coercion involve an imminent threat of death or serious bodily harm
i. threat to property or financial well being not excused
b. killing of an innocent never excused even if accused acted in response to immediate threats
3. Model Penal Code § 2.09
a. does not afford duress defense if actor negligently or recklessly placed himself in the situation
b requires at least a threat to personal safety, not to property
i. no demand that threat be of death or great bodily harm
ii. actor does not have to be the directly imperiled victim
iii. no demand for immediate threat of injury
c. no requirement for immediacy of threat
Look at affirmative defense, lapse of time, change of circumstances can take away or grant an affirmative defense.
H. MENTAL ILLNESS
1. INSANITY – an affirmative defense; necessarily need a mental disease or defect
a. “competence”: legal std. that requires the Δ be able to reason and understand what is going on
i. Δ must be able to assist his counsel at the present
b. “insanity”: refers to mental state exclusively at the commission of the crime
c. insanity defense places preponderance burden on Δ
i. if found insane, then Δ excused from the punishment of the crime
(a) may violate notions of retributive justice to punish those who cannot be held morally blameworthy
(b) whether punishment serves as a deterrence depends on what other persons the one is trying to influence
d. defense of insanity rests on an internal cause, not external factors (e.g self-defense, necessity, duress)
e. M’Naghten Test (The “Cognition” Test) [lecture notes 11/20/2003]: “it must be proved that, at the time of the committing of the act, the
party accused was labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was
doing; or, if he did know it, that he did not know he was doing what was wrong.” (CB 698)
i. “incapable of distinguishing right from wrong” refers to a person’s cognitive inability, due to a mental disease or defect, to distinguish
right from wrong as measured by a societal standard of morality, even though the person may be aware that the conduct in question is
criminal” – People v. Serravo (CB699)
ii. requirements:
(a) proof of a disease of the mind
(b) caused a defect of reason (does not KNOW nature and quality of act), or…
(c) such that the Δ lacked the ability at the time of his actions to either:
(1) know the (legal) wrongfulness of his actions; or
(2) understand the (moral) nature and quality of his actions
iii. might be that Δ does not know the nature of his act or not aware that he is doing the act
(a) premised on idea that if Δ knows nature of his act, then can stop himself
(b) “A person in an extremely psychotic state might be aware that an act is prohibited by law, but due to the overbearing effect of the
psychosis may be utterly without the capacity to comprehend that the act is inherently immoral.” – People v. Serravo (CB 696)
(1) “Conversely, a person, although mentally ill, has the cognitive capacity to distinguish right from wrong and is aware that an act is
morally wrong, but does not realize that it is illegal, should nonetheless be held responsible for the act, as ignorance for the law is no excuse”
(CB 696)
iii. does not ask whether Δ could control his behavior
f. Mental
§ 4.01(1): ALI/MPC diseaseTestor
i. broadened
Defect Excluding question of “knowledge” to whether Δ had “substantial capacity to appreciate the criminality of his conduct”
ii. added the alternative “volitional question”: whether Δ, even if he could appreciate the criminality of his act, nevertheless lacked
Responsibility:
“substantial capacity to conform his conduct to the law”
A person (a)
is not“appreciate”
responsible forsubstituted for “know” holds that a sane offender must be emotionally and intellectually aware of the significance of his
criminal conduct if at the time of
conduct
such conduct as a result of
(i) demands
mental disease or defect more
he from prosecution
ii. specifically
lacks substantial mentions conduct
capacity either
to appreciate the criminality (a) conduct is presumed under M’Naghten test.
[wrongfulness] of his conduct or
g. Quasi-Insanity
to conform his conduct to the defenses rely on some mental element/reaction to an outside factor
i. alcohol
requirements of law. & other drugs (drugs interact with mental illness)
(a) General Rule: any mental condition that derives from voluntary intoxication, including permanent psychological damage that mimics
the symptoms of insanity, is treated like the short-term effects of intoxication
(1) does not exonerate Δ except in certain cases where it might negate “specific intent”
ii. Specific disorders (CB 737-744)
(a) Post-Traumatic Stress Disorder
(b) Postpartum Psychosis – women murdering/attempted murder of their infant children

(c) Premenstrual Syndrome
(d) Gambling
(e) Multiple Personality Disorder
h. “Diminished Capacity”
i. refers to cases where a Δ who cannot win on pure NGI claim, benefits through acquittal or mitigation of the charge from evidence of
mental illness or disorder
ii. merely a rule of evidence
(a) the admission of evidence of mental abnormality to negate mens rea
iii. also seeks to show that he lacked the capacity to form mens rea
iv. mostly used to mitigate crime down to a lower level

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Criminal Law 2008 Fall – CHAVEZ Page 1 of 55

Elements Chart and Outline

1. Impossibility no defense Wharton Rule Impossibility –

Common Law – Proximity Test –

Crime Elements Method Title

(If YES to a/b 🡪 not 1˚)

🡪 Deliberation: “Consideration and

2˚ - All other inherently dangerous felonies

AR 🡪 Homicide 🡪 Homicide 🡪 Homicide committed recklessly

P Heat of Passion Doctrine Heat of Passion Doctrine Extreme Emotional Disturbance

II. Unlawful Act

🡪 If someone killed during a felony that is no

Common Law: sufficient for a blow or strike against the V

🡪 “Natural and probable” result – proximately caused.

🡪 If a person who has a relationship w/ another, and knows

4. No alternative force 3. Retreat 4) Estimable response – actor makes the

Defe Used by law enforcement – deadly force

Differences b/w CL:

Aiding: Physical assistance, Information Abetting: As simple as verbal encouragement, causing a

🡪 Common law: using a person that is

I. Sources of Criminal Law

II. The Criminal Act

B. criminal acts must be done voluntarily (MPC § 2.01)

1. may prosecute in absence of an act

III. Mens Rea (The Guilty Mind) should have known.

b. easier to convict for general intent crimes

2. CA Penal Code: divides murder into differing degrees

(ii) IMPLIED MALICE (= extreme recklessness)

(iii) manner of killing

D. Voluntary Manslaughter – no “malice”🡪 mitigating circumstances

4. CALIFORNIA PENAL CODE (Cal. Penal Code § 192(a))

Cal. Penal Code MPC

* MPC rejects involuntary

VI. UNINTENTIONAL HOMICIDE

i. liability for manslaughter cannot be premised on negligence

E. First-Degree Felony Murder (rejected by MPC)

other that the robber’s conduct happened to induce.”

VII. CAUSATION – direct application to homicide

(i) supervening cause

VIII. CAPITAL PUNISHMENT/DEATH PENALTY

c. knowledge of crime in and of itself insufficient for accomplice liability

(i) accomplice might not

X. INCHOATE OFFENSES – all require a demonstration of the individual’s attempt

5. common defense: trying to negate the mens rea (specific intent)

XI. RAPE – general intent crime

1. does not have degrees of rape (minority jdx)

3. MPC has differing degrees of rape (1st-3rd)

a. need only factually demonstrate that victim did rely on misrepresentation

iv. extortion vs. robbery

XIV. Defensive Force

D. DEFENSIVE FORCE: SELF-DEFENSE

d. MPC allows defense of 3rd parties

3. threat not necessarily posed by other individuals

c. if duress defense successful, then acquitted

(b) Postpartum Psychosis – women murdering/attempted murder of their infant children

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