Every argument has two parts, 1) the legal argument- as in what is the appropriate rule of law, and 2) the factual argument—application of legal rule to facts of the case, facts about the crime and facts about the
 .
 Rehabilitation
 Prison will fix the criminal so he becomes a responsible member of society; usually not successful (except for some drug rehabilitation cases)
 Incapacitation
 Prevents person from committing the crime again; keeps person off the street
 Specific deterrence- repeat offenders who will continue to commit crime no matter what
 General Deterrence
 Deter by example
 Works best for white collar crimes, i.e. people who think about the consequences
 Retribution “Just Desserts”
 “eye for an eye”
 Non-utilitarian principle, only reason for capital punishment
Limits on what the Legislative branch can do in defining crimes.
 LEGALITY (14 th Amendment, Due Process)
 Laws must clearly define crimes in advance of the conduct sought to be punished
 To withstand a facial vagueness challenge under the due process clause, a statute must satisfy two basic elements: (1) fairness, (2) void for vaguenss
(1) No adequate/fair notice
- Statute must be sufficiently definite to provide person of ordinary intelligence
(reasonable person) adequate fair notice of conduct proscribed (Lambert, lack of notice for violation of felon gun possession law).
- Specific intent requirement cuts in favor of fair notice b/c reasonable person always knows what is in his mind and knows if he’s intending it (Caswell-loitering by toilet with intent for lewd & lascivious act)
(2) Risk of Arbitrary Enforcement- statute must provide sufficient guidelines for the police to prevent arbitrary enforcement., leaves police to pick between groups of ppl – not fair.
- So sweeping that it includes too much innocent activity that police will use their own discretion (Papachristou- vagrancy law criminalizes ordinary activity&police used it as a means to discriminate)
- Caswell - loitering around a public restroom, but not unconstitutional because there was a specific intent prong which provide adequate notice of the mental state and actions that will lead to arrest. Should have been charged as Equal Protection b/c if the police are out enforcing laws with biases that do not serve state interests, then the Fourteenth Amendment
and the Equal Protection Clause protect that person
- If enforcement is controlled by an objective standard, does not apply.
 PROPORTIONALITY: (8 th Amendment)

The requirement that punishment or the degree of punishment bears some relationship to the seriousness of the crime committed.
Cruel and unusual punishments violate the 8 th Amendment IF either:
(0) The punishment inflicted cannot be grossly disproportionate to the crime: ( Ewing v. California :
golf clubs; The CA three strikes law for the theft is not grossly disproportionate) o 3 Factor test that may be relevant to determination of whether a sentence is so disproportionate that it violates the 8 th Amendment:
1) Gravity of the offense and the harshness of the penalty
2) Intrajurisdictional (sentences imposed on other crimes in the same jurisdiction)
3) Interjurisdictional (sentences imposed for commission of the same crime in other jurisdictions) Solem v. Helm
(B) Punishes status/condition
- Law can only punish an act, not a status, condition, or involuntary act that is a product of a disease.
* Robinson - can’t punish status of being drug addict or a disease.
* Powell - drunk in public is not a disease or status; punished for being drunk, not for being an alcoholic
(C) California Constitution: Cruel OR unusual punishment. Proportionality measured by:
- The nature of the crime (subjective, considering the facts)
- The nature of the criminal (subjective)
* Dillon Kid kills marijuana farmer, b/c of “fast developing situation” gets charged reduced
- 3 aspects to consider with regard to “sentence-triggering” behavior:
1) The harm caused or threatened to the victim or society
2) The absolute magnitude of the crime
3) The offender’s culpability
 EQUALITY (14 th Amendment)
 The requirement that the law afford the same treatment to all similarly situated classes of law violators unless there is a sufficient and legitimate state interest.
 Rooted in the 14 th Amendment/Equal Protection Clause
 If the statute is unconstitutional on its face there must be a legitimate state interest in the issue at hand to justify the discrimination.
 (A ) Discriminatory on its face: the language of the statute is written discriminatorily; it’s ok IF: o The state has a legitimate interest and; o The discrimination furthers the interest.
 Michael M. v. Superior Court : the CA statutory rape law was aimed at men, but discrimination is okay on its face b/c it furthers the legitimate state interest- to avoid social, medic, and economic consequences of teen pregnancy since consequences of sex and pregnancy fall only on women this seeks to even the
ground.
(1) Discriminatory in its Application: (As Applied) Language of the statute is ok, but it is discriminatory in the way it’s enforced o This deals with the actual discrimination of the law. Even if the law could pass the void for vagueness test, if discrimination is committed in application it is and EPC violation. o The law is used to discriminate (the prosecution or police are discriminatory in enforcing it)
 Yick Wo v. Hopkins : unlawful to operate laundry mat in wood building unless
application approved. Only white applications , not Chinese were approved.

o As a general rule the legislature is free to define crimes and apply punishment as it sees fit (except for the rare case where a constitutional provision would be violated- due process, cruel & unusual punishment, or EPC) o A crime consists of two elements:
 1) Act or omission/failure to act (Actus Reus)
 2) Mental State (Mens Rea)
 Penal Code § 20: to constitute a crime there must be a unity of act and intent.
In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.
(A) ACTUS REUS
Can’t be punished for….. o Voluntary act; Act must be voluntary. o In Re David W: kid was on drugs, cops physically remove him and then charge him with intoxicated in public. Because he didn’t voluntarily leave the house, he cannot be charged with
voluntarily breaking the law. o People v. Olsen: drunk  went into someone else’s house and passed out. Even though the police forced  her outside, she was still guilty because she was already outside before passing
out and police merely returned her to original state. o Unconsciousness (complete defense to the act element of any crime except self-defense and partial unconsciousness is a partial defense). The unconsciousness cannot be self-induced. o The state may only prosecute if a  is fully aware of their acts. o People v. Newton : black panther in fight with cops. Was shot and went into unconscious state
in which he shot an officer. o Self induced/voluntary intoxication is NOT a defense to the act element o Disease/Status: You cannot punish for a status o Robinson v. California : can’t punish for being an addict even though he did not use drugs
within the state but had tracks on his arms. o Powell v. Texas: not being punished for a status of being an alcoholic, but for his actions of being drunk in public. Knowingly failed to take precautions against going out and remaining
in public after intoxicated. o Omission of an act, 4 situations in which a failure to act might constitute a breach of legal duty to act: o 1) Statute explicitly imposes a duty to care for another o 2) One stands in a certain status relationship to another (parent, child) o 3) One has assumed a contractual duty to care for another o 4) One has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid, making them worse off.
(B) MENS REA
Criminal law recognizes two species of fault (Objective and Subjective; culpable mental state) o Requires proof of the particular actor’s actual state of mind with regard to his/her actions or the surrounding circumstances o 1) General Intent (Objective)
 Statute will contain words like reasonable, willful, unlawful, negligent
 The intent is implied in the crime itself, no additional proof required.
 Prosecution need only show the  intended to do the act (ex: pulling the trigger with the gun aimed at officer, Hood, and the crimes of rape and kidnapping)
 Defenses:

 Very few available.
 Honest & reasonable mistake of fact is a defense if the facts as  believed them to be would have meant the actions were not criminal o 2) Subjective Mental State
 No further desire of act or consequences but must prove a subjective mental state
 Receiving stolen property: act is general intent but must have a subjective knowledge that the items were stolen
 Assault: act of shooting but specific intent of danger to others o 3) Specific Intent (Subjective Mental State)
 Statute will contain words like intent, knowledge, deliberate purpose, conscious disregard, malicious
 Prosecution must prove (1) that you intended to do the act and (2) that you intended a further consequence, result, or act.
 When a crime requires a specific intent, any evidence that tends to negate that state is admissible (intoxication, shock, etc.)
 Defenses:
 Voluntary/Involuntary Intoxication: evidence that  did not have the specific mental state. Voluntary not a defense to implied malice. o Reyes: Stolen toolbox from truck; voluntary intoxication was a defense
to negate specific intent/knowledge of receiving stolen property o May not be used to negate implied malice
 Mental defect/Diminished Actuality o Whetmore : charged with burglary, specific intent crime. Thought the apartment was his. Evidence of diminished capacity is admissible at the guilt phase whether or not that evidence may also be probative of
insanity.
 Actual/Honest Mistake of Fact o Scott : didn’t know punch was spiked;  tried to commandeer vehicles which he did have intent to do (so invol. Intox. Not a defense), but he had
necessity defense so was found not guilty o 4) Strict Liability (No Mental State)
 Act is done, so guilty – no obligation to prove sub/obj state
 May be strictly liable for one element of crime while other part requires a mens rea
 Olsen : court held that  strictly liable for the age of girl, but otherwise it was a
specific intent crime
  is strictly liable for knowledge of the law except:
 When Subjective state is an element of the crime: o Goodin : illegal to tear up a public road but the statute requires that the person know the road is public. Plaintiff still has to prove that the 
knew the element of the crime
 Where the conduct is an omission and law is not commonly known o Lambert : Lack of fair notice by not allowing a felon to register when
they first told of the law.
 When  sought to discover law but was misled by Gov. Official o Snyder (Bray): court held that classification of felony and misdemeanor is easily found out but in Bray, gov. officials misled 
************* go back to this************** - Jorge M. – seriousness of punishment
(C) DEFENSE CLAIM OF REASONABE MISTAKE

o SHATZ Test: If you can go to the law library and find the answer, it is a mistake of law. If you have to go out into the real world to find the answer, it is a mistake of fact. o Mistake of Fact: o ANY mistake of fact that disproves a required specific mental state is a complete defense. o Actual and reasonable mistake of fact as to result or circumstances of an act that disproves imputed mental state (general intent) is a defense. o Mistake of Age
 Hernandez: thought she was 18=OK
 Olsen: thought she was 14=not OK o Mistake of Consent
 Mayberry: thought she was consenting; prosecution doesn’t have to prove  knew, but
only that he knew or should have known
 Barnes: lack of resistance is not consent o Mistake of Law o  is always liable for knowledge of the law (ignorance is not an excuse), except when: o Knowledge of the law is an element of the crime
 Goodin: built on a public road, but did not know that it was still a public road
 Theft: If you think you’re the owner of a defaced book b/c you actually believe copyright laws make that your book, then not guilty. o Statute punishes conduct that is an omission and law is not reasonably knowable
 Lambert: obscure LA ordinance o  has done all he could do an mistake was result of receiving wrong or misleading info from a gov. official ( Snyder )
Mens Rea Statutory Language Examples of Mental Defenses
Specific Intent/other subjective mental state
General (imputed)
Intent/Negligence
Strict Liability
Intent, malicious (Goodin), purpose, knowingly
(knowledge-Reyes), premeditated
Willful (voluntary act), negligence
“Public Welfare,” regulatory, minor punishment, questions of law.
Intoxication, self-induced unconsciousness, mental disease (Whetmore), mistake.
Reasonable mistake of fact.
None.
 The act requirement for all four types of unlawful homicides is the same: causing the death of another human being or fetus.
 Prosecution can prove unlawful homicide under three theories:
1) Intentional homicide (Express malice)
2) Unintentional homicide (Implied malice)(Criminal Negligence)
3) Killing during the commission of another crime (Felony-Murder Implied Malice) (Misdemeanor
Manslaughter)

F I I R S T D E G R E E : premeditation & deliberation / 7 means /
13 felonies
S E C O N D D E G R E malice or a substitute
E
M A N S L A U G H T E R : voluntary, involuntary or vehicular
I NTENTI ONAL
Saille/Wharton
(premeditation)
Sanchez (concurrent cause/transferred intent/premeditation)
Concha (provocative act/premeditation)
Anderson (express malice)
UNI NTENTI ONAL
(CULPABLE M ENTAL
STATE)
Taylor / Pizano
Joe R.
(no malice/causation)
COM M I SSI ON OF
ANOTHER CRI M E
Washington
Kendrick
Sears (no specific intent for felony)
(not in perpetration)
VOLUNTARY
M ANSLAUGHTER
Berry/Wu (heat of passion)
Christian S. (imperfect self-defense)
Watson/Taylor/
Knoller / Nieto-Benitez
(implied malice)
I NVOLUNTARY (or
VEHI CULAR)
M ANSLAUGHTER
Walker (crim. negligence)
Dillon (cruel or unusual punishment)
Patterson (dangerous to life)
Smith (merger)
Chun (merger)
I NVOLUNTARY
M ANSLAUGHTER
Cox
 Two types of Malice
1) Express Malice (malice aforethought): Intentional killing without heat of passion, selfdefense, or imperfect self-defense. “Deliberate intention unlawfully to take away the life of a fellow creature.” Intent to kill + Causation (proximate) See Concha Case
2) Implied Malice: Circumstances attending the killing show an abandoned or malignant heart.
The act is:
- Inherently dangerous
- With a high probability of death
- Demonstrates wanton and willful disregard for human life
- Prosecution must show  is aware of the risk. Intoxication is not a defense.
 Murder or Voluntary Manslaughter? o

(i) Heat of Passion: Homicides committed upon a sudden quarrel or in the heat of passion upon adequate provocation.
Has to show:
1.
Sudden, uncontrollable surge of passion. Subjective standard.
2.
Adequate provocation that would render a reasonable person to act irrationally or without deliberation or reflection. Objective standard.
3.
No cooling off period. Objective Standard
People v. Berry
- Heat of passion requires: (1) reasonable person (2) who had been provoked, and (3) acted while in the heat of passion.
-  charged with murder of his wife who announced her love for someone else.

- Provocation can be verbal and cumulative over time.
People v. Wu
-  charged with 2 nd degree murder of her son,  intended to kill him and then commit suicide.
-  wanted to introduce cultural background as a defense to prove her conduct was reasonable
- Cultural background relates to mental state, may be used as a defense. It’s a weak argument.
(ii) Imperfect Self-Defense: Honest (subjective) but unreasonable
belief that he is acting in self-defense. Negates mens rea, no malice. Or Imperfect
Defense of another, but it cannot be delusional.
- In Re Christian S.
-  charged w/2 nd degree murder after shooting victim who was taunting him and challenging him to fire
- Legislative intent was to abolish diminished capacity, not
“imperfect self-defense”
- Imperfect self-defense negates malice aforethought and thus reduces from murder to voluntary manslaughter
(iii) Voluntary intoxication and mental incapacity NOT a defense
- Saille
- drunk goes home to get gun and kills bouncer; NO vol. man.
Intent to kill a human being or fetus w/ malice aforethought and one or more of the following:
(i) Premeditation and Deliberation
- Requires strong evidence of (1) or evidence of (2) coupled w/evidence of (1) or (3)
1. Planning activity (mapped it out)
2. Motive (relationship to victim) – Circumstantial
3. Manner of killing (weapon used, precision of killing, preconceived design)
People v. Anderson
-  guilty of 1 st degree murder of girlfriend’s daughter.
- Methods of killing and the disposing of the body, in addition w/ a lack of prior sexual abuses, indicate a lack of motive. Sentence reduced to 2 nd degree.
People v. Wharton
- Convicted of killing his girlfriend w/ a hammer and hid the body in a barrel.
- Court ruled sufficient evience for (1) planning and (2) motive.
- Different then Anderson because the Court stepped in and overruled the jury.
(ii) 1 of 13 Enumerated Felonies
- (1) robbery, (2) burglary, (3) rape, (4) mayhem, (5) arson, (6) sodomy, (7) oral sex w/a minor, (8) rape by instrument, (9) lewd and lascivious acts w/ someone under 14, (10) carjacking,
(11) kidnapping, (12) train-wrecking, (13) torture.
(iii) 1 of 7 Means
- (1) destructive device or explosive, (2) weapon of mass destruction,

-
(3) armor-piercing bullets in shooting, (4) lying in wait, (5) torture,
(6) poison, (7) intentional shooting from a car.
People v. Ceja
-  charged w/ murder, shot girlfriend in back 3 times after he got her alone.
- 3 elements of lying in wait:
1. a period of lying in wait;
2. the attack proceed from a position of advantage
(hiding); and
3. the attack follow immediately after the watchful waiting (surprise attack).
- Prosecution must prove intent to kill w/ malice aforethought, but not one of the 7 means or 13 felonies. Requires express malice only.
- Spur of the moment, non-premeditated killings
People v. Sailles
- In a drunken stupor, decided to kill bouncer but killed patron instead; intent to kill was transferred
- Voluntary intoxication or mental defect can’t negate express malice nor mitigate murder to voluntary manslaughter.
- Deliberate intent to kill = intent to kill.
- Implied malice can only be 1 st degree if it is done during one of the 13 felonies or 7 means.
Implied malice (2 nd degree murder): ******Come back here****
1. Objective: Act is inherently dangerous to life with a high probability of death, and
2. Subjective: conscious disregard for human life (aware of the risk and nonetheless goes ahead w/it)
People v. Watson
- Deliberate drunk driving that kills, meets elements of implied malice.
People v. Burden
- Baby starved to death; father had duty so his omission was an act
- He knew and appreciated the risk
*******MITIGATIN*******
CAUSATION=FORESEEABILITY=natural and probable consequences.
Prosecution must prove both:
1. Cause in fact “but for…”
- Would death have occurred “but for”  ’s act?
- Concurrent cause: both parties acting together caused the death, without the actions of both, the death would not have occurred.
Smith
- boyfriend and mom child abuse.
Sanchez
- drive by shooting, both shooters proximate cause of death.
2. Proximate Cause: Foreseeability: *******Listen here****
- TEST

- What is foreseeable depends on the dangerousness of the situation.
- The more dangerous the situation, the more foreseeable extreme reactions become
- Proximate cause exists if the result is foreseeable (there is no intervening cause-in-fact).
Roberts
- Prison guard’s death by the attacked prisoner must be foreseeable to hold  accountable for it. Yes because of physical proximity.
Armitage
- When the victim acts under the influence of panic or extreme fear in a situation of peril created by the  , the action will not negate liability unless the action is wholly abnormal.
- Victim’s trying to swim ashore was not a wholly abnormal reaction to the perceived peril of drowning.
- The worst the stressed situation, the more liable you are, because the more possible of outcomes can occur.
CONCURRENT CAUSATION **** Listen***** two actions combine causes death, both actors
Criminal/Gross Negligence: doing an act or an omission of an act with a very low degree of care.
Walker
- “reasonable person” standard. Christian Scientists are no longer
“reasonable” when the kids died due to lack of medical care.
- Involuntary manslaughter can be established because it’s gross negligence, and negligence is based on reasonable person standard.
Watson
- it is enough that the  created a risk for somebody and someone was
Burden killed.
- the retarded wife lacked appreciation of the risk
- Felony Murder: §189, if you kill someone during the commission of a felony, it’s murder. If it’s one of the 13 listed felonies, it’s FM1, if not, it’s FM2.
- Purpose: While you’re committing a felony, be careful not to kill. To deter negligent or accidental killing, not to deter underlying felony.
Factors that need to be met for FMR:
Killing must be done by a felon or co-felon and occur during commission of a felony.
Felon must have a specific intent to commit the underlying felony.
Felony is inherently dangerous to life in the abstract
(2 nd FMR, not enumerated).
No merger between the felony and the killing.
Case Illustration Washington Sears
Felony Murder 1 st Degree (1 of 13 felonies)
Patterson Smith/Hansen

(i) Did the  commit a felony?
(ii) Was the killing in perpetration of the felony?
By a felon: Not in perpetration if killing was done by someone other than the perpetrators
( Washington )
During the felony: Not in perpetration if the felony has ended because the  has escaped to a place of temporary safety. Otherwise crime is ongoing. ( Kendrick )
(iii) Did the  have the specific intent to commit the felony?
The prosecution must prove the specific intent to commit the underlying felony. Regardless of whether it is a specific intent or general intent crime, like mayhem. ( Sears: kills ex’s daughter with pipe, lacerating her nose; charged with FM for committing mayhem. Held no intent to commit mayhem, so can’t use FM )
(iiii) Does the felony merge? Move this down to FM2??????
Merger Rule: felony merges into the murder, thus no FM: o If the felony is an integral part of homicide: assault with intent to kill merges ( Smith:
beating child under circumstances likely to kill the child).
o Only assaultive crimes merge. ( Hansen: “inherently dangerous” doctrine and
“merger” doctrine are mutually exclusive. If an act is inherently dangerous, it merges with the killing, if it does not merge, it’s not inherently dangerous; then there won’t be a second degree FM rule).
Felony Murder 2 nd Degree
(i) Is the felony inherently dangerous to life in the abstract if it is not 1 of 13? (high probability it will result in death) MERGER GOES HERE - LiSTEN
Patterson
 provided cocaine to victim who died of overdose.
(ii) Does the underlying felony merge with the killing?
Hansen
Shooting at an “inhabited dwelling house” is an “inherently dangerous” crime.
- If a  commits a misdemeanor and it results in death, the  is guilty of involun. manslaughter.
- Prosecution must prove: LISTEN HERE
(i) Dangerous under the circumstances;
(ii) Underlying offense must be done with criminal intent or criminal negligence.
Cox
Hit someone on the head who died from the battery.
Nieto-Benitez
Is brandishing a firearm sufficiently dangerous to life to give an implied malice murder charge? Yes.
If malice is found, then misdemeanor goes up to murder instead of manslaughter.
- Definition: Prosecution of a  for murder, when neither the  nor an accomplice fired the fatal shot but by a bystander, victim, officer, etc.
- Unintentional (culpable mental state): cannot be intentional because there was no intent (express malice) and it is not FM because of Washington.
- Three theories to get a felon whose bullet didn’t actually kill or fire the fatal shot:
1. Vicarious Liability:  can only be vicariously liable for the other felon’s actions. o The malicious act must be over and above the felony

o Must show actions over and above the felony for it to be done with implied malice. o If a victim is sufficiently provoked by the conduct of the  and his accomplices and reacts with legal resistance, the  and his accomplices are responsible for the ensuing killings under an implied malice theory. o Something more than a polite felony/robbery. Must be malicious above and beyond the felony. o Taylor: Mrs. West shot and killed after provocation of potential execution. This is adequate provocation to imply malice while robbery does not have a sufficient or high probability of death alone, “provoking” the gun battle raises the action over and above the felony. o The  cannot be liable when the killing is not in response to any provocative acts by the  .
o Pizano: human shield case. This malicious act proximately caused the death because it put an innocent victim in the line of fire. o If the  ’s action was not the proximate cause of the co-felon, then no murder charge. However, if the  provokes the victim with the co-felon, then  can be guilty of the murder but not vicariously liable. Provocative acts must be done by the  .
o In Re Joe R: Since  ’s actions did not cause Anderson to decide to kill co-felon, no murder charge because  ’s punch was not the proximate cause to the killing.
2. Concurrent Causation: when the actions of two people come together to cause the death. o Sanchez: 2 gangsters shot at each other and a bystander was killed. Only one bullet was found.
Concurrent cause because they joined with someone to do an illegal act (like drag racing).
3. Proximate Causation: Where the  does something that caused someone else to kill. If the chain is forseeable, then the  is guilt.

(a.k.a. Mens Rea
Grid)
13 felonies:
1.
2.
3.
4.
5.
6.
7.
arson rape car jacking robbery burglary mayhem kidnap train wrecking 8.
9.
torture
10.
sodomy (against will)
11.
lewd act w/ a child
12.
oral against will
13.
anal or object unless will
7 means:
1.
2.
3.
4.
5.
6.
destructive device/explosion
WMD armor piercing weapon poison lying in wait torture
7.
shot from car (not moving)
(can use transferred intent)
Premeditation &
Deliberation;
7 atrocious means;
13 enumerated felonies
Cases:
 Wharton
(premeditation)
 Ceja (lying in wait)
(culpable mental state + Causation)
7 atrocious means;
13 enumerated felonies
(3 rd party killings)
Cases:
 Taylor
(provocative killings)
 Pizano
 [Joe R.acquitted]
All other intentional murders with express malice
(intent to kill)
Cases:
 Saille (malice)
 Anderson
(malice)
Reckless intent to commit harm; wanton disregard for human life
Cases:
 Watson (implied malice)
 Burden (wanton disregard by omission)
(Commission of another crime)
Only way to get here is if the felon commits the murder-13 dangerous felonies in § 189
Cases:
 Kendrick
(robbery)
 [Washington]
 [Sears]
(merger rule gets you out of this column)
“Inherently dangerous”; merging rule
Cases:
 Dillon (reduced from M1)
 Patterson
(furnishing cocaine)
 Hansen (shot into dwelling)
Express Malice ↑ Implied Malice ↑
Voluntary manslaughter;
Imperfect selfdefense
Cases:
 Berry
 Wu (heat of passion)
 In re Christian S.
(imperfect selfdefense)
Involuntary manslaughter;
Objective gross negligence
(vehicular manslaughter)
Cases:
 Walker
(objective gross negligence)
(lack of malice)
Misdemeanor manslaughter; criminal negligence during misdemeanor or non-dangerous felony (not strict liability misdemeanors)
Cases:
 Stuart (no crim. negligence)
(mitigated malice)
Mens Rea: Intent to permanently deprive the owner of his property.
If  intended to return the property when he took it,  is not guilty of theft.

Brown:  took bike with the intent to return the bike.
Defense to Mens Rea: Honest belief that property was his to take.
 cannot have an honest belief if the claim arises out of an illegal transaction.
“Claim of Right” defense does not apply to illegal appropriation.
 cannot have an honest belief if the debt is unliquidated. Can’t replace debt with something else. LISTEN) – use of force – intent Listen
Tufunga: Dispute between  and ex-wife about the claim-of-right of the $200. Claim-of-right defense negates intent unless (1) the debt is illegally gained, (2) unless it’s the exact same property. It could be money, but would have to be the exact same money.
Actus Reus: All thefts have the same mens rea and differ how the property is obtained. All require taking and asportation, except forgery which does not require asportation.
Asportation (carrying property away) is required for most theft crimes. Ends when thief reaches a temporary safe haven.
Property does not have to be removed from the place:
Khoury: Any removal of the property from the place where it was kept or placed by the owner is sufficient to constitute the element of carrying away. (Placing tools in box trying to leave the sore)
Can be an exercise of dominion and control over the property.
Davis: Mens rea exists when you wrongfully assert ownership. (Took a shirt from the store claimed the shirt was his to exchange it for money. Theft b/c he would’ve taken the shirt with him had he not gotten the voucher)
Types of Theft: Distinguished by acquisition.
(1) Embezzlement: the fraudulent appropriation of property by a person to whom it has been entrusted. Requires a fiduciary relationship and does not require asportation.
(2) Extortion: the obtaining of property (or official favors) from another, with consent, induced by the wrongful use of force or fear, or under color of official right. Threats do not amount to robbery
(unless immediate violence to the victim) a.
Beggs: It is clear that the use of fear induced by such threats, as a mean of collecting a debt, is wrongful. (Lawyer extort fee with threat of jail time)
(3) False Pretenses: the fraudulent appropriation of title to another’s property. a.
Intent to defraud must exist prior to or at time when property is obtained. b.
A false promise that you don’t intend to go through with is the same as fraudulent intent. c.
Ashley: false pretense is not a false promise. Only if the prosecution must prove that any misrepresentations of fact were made knowingly and with specific intent to deceive.
(subjective mental state)
(4) Forgery: the fraudulent creation of a false document with apparent legal significance. Subset of false pretenses. a.
Davis: Cashing forged check wasn’t a burglary
(5) Larceny: the felonious taking (i.e., taking with the intent to permanently deprive the owner of the property) and carrying away of the property of another. a.
Larceny by Trick or Device: there was apparent consent, but the reason for consent was fraudulent (switching cars, you said you had a Mercedes but you have a beater). In larceny you only obtain the possession of the item, whereas in false pretenses it is obtaining of the title of the item. b.
Offense of larceny is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another (4) by means of trespass and (5) with intent to steal property, and (6) carries the property away. (Davis) c.
The  must intend to commit the theft and the requisite mens rea must be present. d.
Brown: did not intend to permanently deprive the owner of the bike, was going to return it.
Therefore, no requisite mental state so no theft.

e.
The requisite intent to steal can be found even though the  ’s primary purpose in taking the property is not to deprive the owner of the possession permanently: i.
(1) When the  intends to “sell” the property back to owner; ii.
(2) When the  intends to claim a reward for “finding the property”; iii.
(3) When the  intends to return the property to the owner for a “refund.” iv.
Davis: Mervyn’s shirt stealer who tried to return it for money.
(6) Misappropriation: the appropriation of found property without reasonable and just efforts to find the owner and restore the property. Property is not returned when the owner is found. a.
Moses: the wandering heifer. Misappropriation requires concealment from the owners. It also implies the Moses’s are theives. You can’t receive stolen goods if you are the thieves, so prosecution screwed up in the theory it charged them with.
(7) Receiving Stolen Property: the receipt or concealment of property knowing the property to have been stolen. Thief cannot be the receiver (Rojas)
(8) Robbery: the felonious taking of the personal property of another, from his person or immediate presence, against his will accomplished by force or fear. a.
Mens Rea: intent to deprive owner permanently of their property has to exist at or prior to the use of force. If the intent arose after the use of force on the victim, no robbery. ( Green: didn’t have intent of robbery when he had sex with and killed his wife) b.
Actus Reus: felonious taking from his person or immediate presence, against his will accomplished by force or fear i.
“Immediate Presence” meaning the area within which the victim could reasonably be expected to exercise some physical control over his property ( Webster )
1.
Or they are constructively present, sensory perceptions ( Hayes: victim is within earshot of robber)
2.
Even implied threats count as force or fear. ( Hays:  had ski mask and gun ) ii.
The robbery begins when the separation from the victim’s property occurs (luring away) and continues through the forcible consummation ( Webster: one commits to rob when he lures the victim away from a place where the victim could physically protect the property, then employs force or fear upon the victim in order to make good the theft or escape. Intent formed at luring, then the taking, then the using of force.)
Definition: Entry into a structure (in which one has no possessory/unconditional right) with the intent to commit a felony or theft.
Mens Rea: Specific intent crime to commit ANY felony
1. Or part of a felony, or to further a later felony ( Kwok: entry with intent to facilitate commission of theft or felony on a later occasion ), and even non-violent felonies ( Salemme: tried to sell fraudulent securities to V in V’s home )
2. Intent is inferred by what the  does once he enters
3. Intent must be formed BEFORE entrance
Actus Reus: A person’s body part entering the airspace of the structure or an instrument used to achieve burglary entering the airspace.
1. A check through a window or ATM card does not count, as it does not constitute an entry. There is no violation of possessory interest. ( Davis )
2. A room is a room in the burglary statute, any room – taken literally. ( Sparks: magazine seller allowed to enter V’s kitchen; later he entered V’s bedroom without permission and raped her.  found guilty of burglary )
Exceptions: (1)  cannot burglarize his own home ( Gauze: shooting roommate in his own apartment is not burglary ). (2) Not burglary if other party consents to the entry and has knowledge of  ’s unlawful

purpose. ( Granillo: Undercover cop invited  to his apartment w/knowledge that  was in possession of stolen goods that he wanted to sell;  not guilty).
Attempt, Solicitation, and Conspiracy are all common in that they deal with conduct intended to culminate in the commission of another offense but falls short of achieving that result.
(A) ATTEMPT
Mens Rea: Specific intent to commit the underlying offense, even if the underlying offense doesn’t have a mens rea (possession).
(i) Cannot attempt an unintentional crime. o Collie:  forcibly raped the estranged wife, and tried to kill her by attempting to set the place on fire (the daughter was inside). He can’t be guilty of attempted implied malice murder of the daughter b/c you can’t intend an unintentional killing.
(iii) No such thing as attempted felony murder. (LISTEN HERE FOR KILL ZONE)
Actus Reus: Affirmative act done towards commission of the crime, beyond mere preparation.
(i) Two factors distinguishing attempt from mere preparation:
1. Proximity to completed crime (How close is  to finishing crime?)
2. Clarity or unequivocal nature of attempt (How clear is it from  ’s acts that  was going to do the crime?) o Berger: Attempted abortion.  argued that it was mere preparation, but court thought that  was close to doing the crime and her acts were unambiguous and unequivocal.
Voluntary Abandonment: If a  abandons the intent to commit the crime after he has done more than preparatory acts, he is still guilty of attempt. Once a  has committed the crime, later actions cannot undo it. o Staples: would-be bank burglar, however, then his wife came back and he changed his plans
(after already cutting holes in the floor, etc.). Still guity of an attempt because he had bored the holes and bought the place above the bank. Voluntary abandonment is immaterial once the intent to commit the crime is established.
(i) If the  has done all he can do to bring about the crime but it does not happen for a reason he does not know about (undercover officer),  is still guilty of that attempt crime. o Decker: attempted murder because he did everything he could to get his sister and her friend killed. It was very specific and he did everything he could, the next step would have been for the hitman to kill her. Shatz doesn’t agree. o Adami: It doesn’t matter how close you are to complete the act if your act depends on someone else’s cooperative effort, if that someone else has not done anything about the act, you haven’t attempted. Cannot convict  of attempt when he solicited an undercover cop to kill because the cop did not have the intent to kill.
Defenses: Legal impossibility (see below).
(B) SOLICITATION
Definition: Consists of the asking of another to commit (actus reus) one of the specified crimes with the intent that the crime be committed (mens rea). It is like attempted conspiracy.
Mens Rea: Specific intent to have someone else commit the crime.
(i) Intent may be inferred or implied from circumstantial evidence. o Gordon: attempted to frame a client’s political rival with cocaine possession. Withdrew offer after a few days. Still guilty.
(ii) Intent can be implied from the objective manifestation of the offer even if  had no intent for the offer to be taken seriously.

o Rubin: $500 for anyone to kill, maim, or harm a Nazi.
Actus Reus: Asking someone to commit the crime completes the solicitation.
(i) Request, express or implied, whether or not offer is withdrawn, whether or not acts are done toward the crime.
(ii) Request doesn’t have to be explicit or precise/definite ( Gordon )
First Amendment: Bars conviction of protected free speech, unless both proximity and degree are proved. ( Rubin )
(i) Proximity: Incitement to imminent lawless action.
(ii) Degree: Likelihood of producing action.
Defenses: Legal impossibility or exemption from the crime.
(C) CONSPIRACY – (1) Inchoate Crime on its own and (2) imposes vicarious liability
Definition: An agreement between two real conspirators to commit a crime or a lawful/unlawful act by criminal, unlawful means, plus an overt act by any one of the conspirators toward the commission of the crime and the intent to see the crime achieved.
Mens Rea: Specific intent to see the object crime achieved.
(i) Can’t have a conspiracy to commit an unintentional crime. o Swain: Drive-by shooting killing of a minor. You can’t conspire to unintentionally kill someone. If you conspire to commit 2 nd degree murder, the fact that you conspired shows premediation, so it would actually be 1 st degree murder.
(ii) Knowledge of a crime doesn’t prove intent. o Lauria:  busted for providing an answering service for prostitutes.
(iii) Conspiracy requires (1) element of knowledge and (2) intent to further the illegal act.
(iiii) Conspiracy by supplier of legal goods may be established by: o Direct evidence that he intends to participate, or o Through an inference that he intends to participate based on, o His special interest in the activity (economic), or o The aggravated nature of the crime itself (violent crimes). (LISTEN HERE REWORD) o Lorenson: Conspiracy itself has a veil of secrecy around it, so the prosecution always has to make due with circumstantial evidence.
Actus Reus: Two or more real conspirators (as opposed to one being an undercover cop) voluntarily agree to commit a crime, and an overt act is done in furtherance of the crime.
(i) If any one of the conspirators does the overt act, all of them are guilty of conspiracy.
(ii) Overt act itelf doesn’t have to be a crime; can be any step toward committing the underlying crime.
(iii) An attempted conspiracy = solicitation.
WHARTONS RULE / WILLIAMSON RULE – LISTEN
Defenses: Legal impossibility., this is a DEFENSE, Factual impossibility is NOT!!! (REVIEW UP TO THIS
POINT)
Limitations:
(i) Legislative intent.
If the substantive crime has more than one participant and the statute doesn’t punish one or gives them a lesser punishment, no conspiracy. o Mann Act: Woman was the one being transported so she didn’t violate the act. And if you can’t get her for the substantive crime, you can’t get her for conspiracy. Can’t get the man for conspiracy as there is no second real conspirator.
(ii) Wharton’s Rule: If the crime already includes two people voluntarily committing the crime, the state can’t separately prosecute them for conspiracy as well. o Mayers: 3 card monte requires two people. Can’t charge  for both the substantive crime and conspiracy.

(D) DEFENSE OF LEGAL IMPOSSIBILITY
If the  intended to commit the object crime and took sufficient steps to commit an attempt, solicitation, or conspiracy, will the fact, that unbeknownst to the  , the object crime was impossible warrant an acquittal? What was the mistake that the  made? There are two kinds of impossibility:
1) Legal Impossibility: Complete defense to an inchoate crime. The  simply misunderstood the law (i.e. believed their actions were criminal when they were really not). Not legally possible to do the crime the  intended.
(i) Different then mistake of law, which is not a defense.
2) Factual Impossibility: Not a valid defense to attempt or conspiracy. The  made a facutal miscalculation that prevents the  from achieving his/her purpose. Had the facts been as the  believed, he would have been commiting a crime. Intent to break the law is still present.
(i) Different then mistake of fact, which is a defense.
(ii) Exception: It is a defense when the fact is an unreasonable factual impossibility to unreasonable view of the world. (biting to give AIDS) o Rojas:  ’s not guilty of receiving stolen conduits because property was no longer stolen (legally impossible) but they are guilty of attempted stolen property because they believed it to be stolen
(turns on the  ’s subj. mind) and were only prevented by the legal impossibility of actually stealing the property. o Peppers: Police set  up so that he could steal from a warehouse, not guilty of theft or burglary b/c  had consent from someone who knew of  ’s felonious intent.
Mistake of Fact-Good Defense
 We let D off here because D simply does not have the mens rea to be committing the crime
 This is a defense to specific intent crimes and can be a defense to general intent crimes (if the mistake completely eliminates D’s entire mental state)
 If mistake goes to the degree of the crime, then it is not a defense (Olson case)
Mistake of Law-Not Good Defense
 D’s are strictly liable for knowledge of the law except:
 when knowledge of the law is an element of the crime (Goodwin)
 where the conduct is an omission and the law is not commonly known
(Lambert)
 where D actually sought to discover and was misled by government official
(Snyder/Bray)
Legal Impossibility-Good Defense
 Conduct where the D’s goal is not criminal, although D believes it to be
 Ex: importing animals that D thinks is illegal when the importation is not illegal
 D’s get lucky! Think statutory rape (I thought she was 17, but she was 18)
 Receiving stolen property that was not stolen is a legal impossibility. If D received property already recovered by the police, then D has complete defense
Factual Impossibility-Not Good Defense
 We do not let off the D here because D is trying to do the wrong thing and simply fails to accomplish it. “We punish according to D’s view of the facts.”

Not a defense to conspiracy (People v. Peppars) .
If you conspire to commit a crime with facts as you think they will be, you are guilty. In short, if facts had been how D thought them to be, then D would be guilty of a crime.
 Receiving stolen property that was not stolen in
CA is a factual impossibility and D will be guilty.
 If the attempt is way off base, then D cannot be convicted. (unreasonable = defense – HIV case)
 Ex: picking an empty pocket.

o These defenses (in contrast to unconsciousness, mental impairment, and mistake; which are all defenses to the prosecutions proof of one or more of the elements of the charged crime) are affirmative defenses and differ from the earlier defenses in that they, in effect, presume proof of the elements of the crime but constitute a new matter which justifies or excuses the conduct which would otherwise lead to criminal responsibility.
1.
Affirmative defenses do not just negate actus reus or mens rea (an element) of a crime, they justify the actions, providing a defense to the crime.
2.
The burden of proof suffers different consequences for the two different types:
1.
Defense to an Element of the Crime: the prosecution bears the burden of proving beyond a reasonable doubt the non-existence of the facts supporting the defense.
2.
Affirmative Defense: the  bears the responsibility of proving by a preponderance of the evidence the facts supporting the defense. o Three categories of “choice of evils” defenses:
1.
self-defense
2.
use of force to prevent crime or aprehend criminals
3.
necessity and duress.
(A) SELF-DEFENSE (and defense of another person) o Definition: Actual and Reasonable belief in the need for defense against imminent bodily harm.
 Subjective honest belief that the attack was imminent and an Objective reasonable response o Self-Defense is that the circumstances are sufficient to cause the reasonable person fear of imminent and great boily harm. Reasonable response, use no more force than necessary.
Things a jurty can take into account to judge reasonableness:
 Race (black at KKK rally)
 Gender (petite woman)
 Previous battering/abuse (BWS) but not a reasonable battered woman standard
 NOT custom and prior experience (ex: Vietnam vet)
 Two methods introduce the attendant circumstances: expert testimony, or jury instruction.
Humphrey: o The expert witness is there to explain the BWS to a reasonable person, to establish credibility, and to expain the hyper-vigilance. o Court ruled manslaughter based on imperfect self-defense: unreasonable kill.
CA Retreat Rule:  has duty to communicated (good faith) retreat or withdrawal if he is the initial wrongdoer. If he did not initiate, the he doesn’t have to retreat.
  must retreat if he initiates the gun battle
  must retreat if he initiated with little force and victim responds with greater force
  must retreat if  put himself in a situation where self-defense is necessary (e.g. a duel)
 If other party starts the deadly force,  doesn’t have to retreat
Hecker: Old west shoot-out. o Self-defense is not available when  seeks quarrel to force a deadly issue. o Self-defense is not available when  entered a deadly mutual combat. o Self-defense available if attack was imminent or sudden and dangerous to life (subj. standard) o If initiated deadly force, need to withdraw before self-defense is available. o If they responded to you runlawful, non-deadly act with deadly force, you can return with selfdefense.

Three ways to start the fight:
1)  was not at fault. o Doesn’t have to retreat or withdraw (come out guns blazing).
2)  was at fault but not a felonious assault. o  must retreat if  can. If  cannot retreat safely, then can kill b/c victim is at fault for escalating the fight with the use of deadly force.
3)  was at fault with felonious assault. o  must communicate (make reasonably known) that he in good faith withdraws and means it. o If  cannot withdraw b/c of circumstances, no defense. (tough shit  started it)
Police Arrests: No right to self-defense just because an officer is making an illegal arrest. But  cannot be charged with battery if an officer is using excessive force.  can defend against bodily harm.
Curtis: o Person may not use force to resist any arrest, lawful or unlawful. May use reasonable force to defend life and limb against excessive force. o Hitting an officer is a felony, but officer acting out of duty is not an officer, and thus hitting the officer then would be a misdemeanor.
(B) DEFENSE OF A 3 RD PARTY
A  may use any force in defense of a third party that the third party would be justified in using. o If  is mistaken in the need to defend a 3 rd party:
 Uses Non-deadly force:
A defense so long as  had a reasonable belief acting in defense of the victim.
 Uses Deadly force:
Only a defense if has a resonable belief actin gon behalf of victim and vicim is a close
family member as per § 197.
If it is not a close family member (stranger),  may only use deadly force if 3 rd party actually had a right to use deadly force himself.
(C) DEFENSE OF PROPERTY
Defendant can always use reasonable non-deadly force to defend property. Defendant can only use deadly force to protect property against felonies if: o In CA, only if there’s threat of violence to inhabitant. Otherwise; o Character of crime is grave, excluding burglary. o Manner or perpetration is dangerous, threat of violence to habitat.
Ceballos: o Ceballos mounted a loaded pistol in garage, a trick device, to hit intruders. o Hit a young boy who entered the garage trying to steal. o  cannot use deadly force (or spring guns) to protect property because a trap gun is not reasonable. o Mechanical traps have no discretion and puts cops/firemen in danger too.
(D) DEADLY FORCE USED TO APPREHEND CRIMINALS
General Rule: Anyone may use reasonable, non-deadly force to prevent a crime (felony or misdemeanor) or to apprehend a criminal.
Tennessee v. Garner

o  can always use reasonable non-deadly force to apprehend criminals. o Deadly force to prevent escape cannot be used unless escapee poses significant threat to officer or others (or nature of crime is so atrocious).
(E) NECESSITY
In General: Defendant broke the law to avoid a greater harm/evil. o Harm caused by the act must not be greater than the harm avoided. o Prevented evil must be imminent. o  must honestly believe no other alternative existed. o Test of Necessity:
 Reasonable choice of a lesser evil (29:00 Listen here)
 No adequate alternative
 Reasonable assessment of the response, and you did not create the situation. o Model Penal Code punishes mens rea of defendant who has created the situation and then makes a reasonable choice in response to the danger.
 He has only an incomplete necessity defense.
 He’s punished for mens rea when he created the situation, not the choice that he had made.
Lovercamp o It’s a necessity defense to the charge of escaping prison (to avoid sexual assault). o This is only good if they turned themselves in immediately. The minute you got out of the treat, you are no longer in the threatened situation. The reason why violence is not allowed is because then it’s not longer the lesser of two evils.
Pena o Pena has necessity defense because (1) he chose a lesser of two evils, he reasonably thought girlfriend was going to be in danger; (2) there was no alternative; and (3) it was a reasonable response and he did not create the situation.
(F) DURESS – see Heath Case
Defined: Criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury to himself or his family, which threat caused the actor to engage in conduct violating the literal terms of criminal law. (Wrongdoer uses threat to enlist  into doing the crime)
Common Law Defense: If defendant is coerced into crime by threats, which a person of reasonable firmness could not resist (except killing, killing is not included because a reasonable person could always resist).
Model Penal Code Defense: o When you are threatened to commit the evil for someone else. o When you are not doing a capital crime. o Person of reasonable firmness could not have resisted the threat.
(A) ENTRAPMENT o Available when criminal design originated with the police and the defendant was not predisposed to commit the crime before contact with police (traditional standard) o When conduct of an officer is likely to induce a normal, law-abiding citizen to violate the law.
CA’s Objective Test:

o Entrapment is established where o Actions generate a motive in a law-abiding person for the crime other than the ordinary intent (induce through friendship) o Make a commission of a crime unusually attractive to a law abiding citizen (guarantee that the act isn’t illegal) o Character, predisposition, and subjective intent are irrelevant
Barraza: o Undercover agent badgered  into selling heroin. o Decoy operations are ok, but assuranes of non-detection are not ok. o Objective entrapment test: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? o You can’t use the defense for capital offenses.
Federal Subjective Test: o Origin of Intent Test o Government instigations and inducement overstep the bounds of permissibility AND o Defendant did not harbor pre-existing criminal intent (finding  predisposed to commit the crime would negate innocence and defeat the defense). Russell Case
Hampton o  sells heroin to undercover agent, purchased from undercover agent. o Jury found  was predisposed to selling heroin. o Under Origin of Intent test, if  had the intent to sell, doesn’t matter how egregious law enforcement’s behavior was. o Due Process Violation? o There would any be a due process violation if the government conduct was more outrageous. (Where crimes like robbery are instigated where there are innocent victims). See footnote in Hampton – Police conduct – threatens ordinary person????
(B) INSANITY
Determined after the guilt phase of the trial. Look at the mental state at the time of the crime.
M’Naghten Rule: General Rule for the U.S. o  was incapable of knowing or understanding the nature and quality of his or her act (didn’t know what they were doing); OR o If  did know it, that he did not know what he was doing was wrong (burden of proof is on the accused, must prove by preponderance of evidence). o Morally worng and appreciate it
Skinner: o Skinner did not know right from wrong when he strangled his wife under the will of God. o Prop. 8 changed OR  AND, effect being a return to the “Wild Beast” Test o Cour held it was a semantic error, voters really meant to reinstate the M’Naghten Rule. AND really means OR.
Kelly: o Daughter has too many hits of acid and stabbed mom because she was the “devil” o  was insane due to the voluntary intake of drugs. o Temporary insanity has to be “settled,” but it does not have to be “permanent.” o If you are mentally defective from the long-term effect of intoxication, you get temporary insanity.
If you are mentally defective while under the influence of intoxication, it does not get you off.

(A) Who besides the principal (the person directly committing the crime) will be criminally responsible for principal’s conduct?
(B) Accomplice Liability o Defined: an aider and abettor is held liable as a principal of the crime. o Mens Rea:  had intent to aid or encourage AND had intent that principal accomplish the crime. o Elements: i.
Knowledge:  has knowledge of perpetrator’s unlawful purpose, AND ii.
Intent to Encourage: With the intent or purpose of committing, facilitating, or encouraging commission of the crime,
 Indifference is not enough, must want principal to commit the crime.
 Intent must exist prior to or during the commission of the offense. iii.
Acts: By act or advice, aids, promotes, encourages, or instigates the commission of the crime.
Collins: o  requested man commit burglary. Man went to police and as an agent of police, pretended to commit he burglary. o  not guilty of burglary using Accomplice Liability because there was no actual burglary. o  could be guilty of solicitation or attempted receiving stolen property though. o If there is no crime, there can be no vicarious liability. It is not enough to prove accomplice intended that the crime be committed, also must prove the principal intended for the crime to
be committed. o If the principal is not guilty,  cannot be vicariously liable.
McCoy: o Principal’s bullet was the fatal one, but he got manslaughter whereas his friend got murder. o  is liale for other’s actions, but you take the degree of the crime by your mental state. o McCoy shot in imperfect self-defense, friend did not. o D will be punished for his own mens rea (LISTEN TO RECORDING)
Knowledge of the principal’s purpose is not enough to establish intent.
Indifference is a valid defense (Lauria)
Beeman: o Beeman was indifferent to the robbery. He could not have aided and abetted the crime. o Mere knowledge and act is not enough. He had to actually WANT to assist the crime. Although knowledge may infer intent. o It’s different from Lauria because Lauria is an insufficient evidence case, and Beeman is about erred jury isntruction.
- Aider and Abettor must share the principal’s specific intent.
- knows the principal’s criminal purpose and aids or encourages with the intent that the principal will achieve the purpose.
- If aider or abettor is jokingly encouraging, then no vicarious liability.
- The principal does not have to know that the aider is helping him, but the aider and abettor does have to be the proximate cause of the crime.

“Late Joiner” If defendant is a late joiner after the crime has been completed, then he is only accessory to the crime.
Cooper “Late Joiners” o Get away driver in a mall parking lot. o If you join during the elements of the crime, you are an aider and abettor. If the elements are complete, late joiners are only guilty as accessories after the fact. o  cannot be guilty of a crime that is over when he joins. o Robbery:If principal is still in possession of the loot and assistance given before has reached a place of temporary safety, aider and abettor. o Burglary: Burlgary is in progress until principal leaves the building, once principal leaves the building, a late joiner can only be guilty as an accessory after the fact.
- Who is the principal and did the principal commit the crime? o Some crimes have co-principals, both participate in elements of the crime.
Sanchez:  shoots at rival gang member, both are treated as co-principals. o Principal may start the crime through an innocent agent.
Williams:  ’s sister shoots victim, but  is guilty because the sister thought  ’s life was in danger, therefore she had a defense of a third party excuse. o One may be the principal in the substantive crime of aiding and abetting a suicide.
In Re Joseph G. o Minors drove over a cliff in a suicide pact. o Prior Rule: Liability determined based on active/passive nature of acts.
 If actively participate (administer poison)= Principal
 If passively participate (supply poison)= assisting suicide, aider and abettor o Court found that the rule shouldn’t apply to true suicide pacts by the same means; same instrumentality ensures geniuses of pact (no fraud). o Survivor should be punished as an aider and abettor, not a principal.
o Natural and Probable Consequences Doctrine says that an accomplice or co-conspirator is liable for crimes beyond what he agreed to if: i.
Additional crime committed by the principal is in furtherance of the agreed crime; or ii.
If the further crime is the natural and probable consequence of the crime.
Listen here: SHATZ only names 4 cases start with Kaufman, listen for the rest not on this list
Kauffman o Kauffman and 5 other guys went to rob a safe. When they saw a guard they decided not to and headed home. On the way home one of the team members ended up killing a cop. o RULE: Conspiracy can exist past the time when the object crime has been abandoned if part of the conspiracy was safely traveling to and from the place where crime was to be committed. o If still part of the conspiracy, strictly liable for co-conspirator’s acts. o To withdraw from a conspiracy: Must communicate intent to withdraw to every other coconspirator in time for them to reconsider.
Durham

o Durham is still on the crime spree. It doesn’t matter if there was no robbery at the time.
- Once a person signs on to commit a crime he is vicariously liable for all crimes committed by his coconspirators that are probable and natural consequences of the original crime.
Luperello o
 hires guy with a sword;  is liable for murder though it was not part of the conspiracy. o The killing is in furtherance of the assault. It was a warning for others who had the information. It seems likely that homicide might occur from assault, in addition, he signed up with two crazies. o The weirder the stuff you do, the more forseeable the crazy results are.
- Aider and abettor could also be charged with a lesser crime than the perpetrator.
Woods o When decide if something is foreseeable, not only the act of the principal, also what mental state is foreseeable in the principal. o Accomplice is only liable for the degree of crime that it is foreseeable the principal would commit. o Not guilty because the aider and abettor had no mens rea for the crime himself.
- Limitations on Vicarious Liability o If legislature did not intend to punish 1 of 2 necessary parties to the conspiracy, only one is guilty
(statutory rape, can’t convict the girl, because it was not legislative intent) o If legislature intended to punish one conspirator less than the other by having created two separate statutes for two separate offenses, then the courts must abide by this.
CONSPIRACY: LISTEN MISSING THIS WHOLE SECTION – LOOK AT DANIEL’s NOTES
o 8 TH Amendment (Cruel and Unusual Punishment) Limits on Death Penalty
1.
Can’t be EXCESSIVE i.
No cruel methods ii.
Must be proportionate to crime- 2 Prong Test – GREGG Case
1.
Look at contemporary values (popular vote) (This is a weird test b/c 8 th
Amendment is about limiting what popular vote can impose on a minority group).
2.
Look at whether it serves a penalogical purpose (e.g.-retribution) + comports to dignity of man.
2.
Can’t create risk of ARBITRARY application i.
Scheme must have guided discretion (safeguards) ii.
Some way to narrow the eligible class
1.
Bifurcation (guilt phase, sentencing phase)
2.
Aggravating circumstances
3.
Automatic appellate review
3.
Fact finder must be allowed discretion to consider each individual case
(INDIVIDUALIZED) i.
Weight mitigating circumstances
1.
 ’s character
2.
 ’s criminal record
3.
Nature of crime and  ’s involvement

Gregg: o Gregg made two challenges (1) Furman challenge of arbitrariness, and (2) proportionality- death penalty is disproportionate to any crime. o Georgia: Furman challenge met because (1) 10-aggravated factors; (2) mitigation factors (character and prior records) are considered; (3) they’d get automatic appeal to the Supreme Court of Georgia, which would do inter-case reviews to see if this case is decided disproportionately. o Proportionality requires that death penalty (1) comports with contemporary value and (2) “dignity of men”- need to serve a penalogical purpose. o “Dignity of Man”- need to have penalogical purpose: o Retribution: non-utilitarian
 It makes people feel better to see that wrongdoers get what they deserve.
 It asks its citizen to rely on legal processes rather than self-help to vindicate their wrongs. o Deterrence:
 The evidence is inconclusive, even though there is no correlation between death penalty and reduction of capital sentences.
- Death penalty is disproportionate for murder of another when  didn’t intend the killing or participate in the killing (not major/substantial factor)
Lockett: o Individualization of death penalty requires examining  ’s (1) history, (2) character, (3) circumstance of the crime. o There seems to be a fundamental inconsistency with allowing any mitigating factors vs. trying to limit risk of arbitrariness.
- Death penalty is disproportionate for rape of adult female.
Coker: o Proportionality argument. Death penalty for rape does not serve retribution factor because the harm inflicted is not proportional with the sentence.
- Not disproportionate when there’s felony murder and  is major particpant and acts with implied malice, even if someone else is the killer.
Tison: o  s didn’t kill or intend to kill, just smuggled in a cooler of guns and helped dad and dad’s cell mate escape. o Disproportionality argument: Tison brothers did not have the intent to kill. o Enmund v. Florida: Need to either kill or intend to kill to get death penalty. o It’s sufficient if the state proves (1) major particpation in the felony committed and (2) reckless indifference to human life (implied malice).
14 th Amendment Challenges
- Even when there’s distortion from race, no sufficient showing of arbitrariness if there’s adequate safeguards as to guided discretion, and no showing of discriminatory affect on a particular case.
McCleskey o Study introduced to show racial discrimination in who gets death penalty. o Need to show intentional discrimination by Legislature, prosecution, or jury. o Majority, Powell: o (1) discretion is a very important value in the justice systemt, (2) there is adequate “statutory safeguards” in the Georgia scheme, (3) “slippery slope” fear of widespread statistical

challenge to other sentencing decisions; race is too pervasive of an issue to be solved here. The court cannot solve the issue by this case, and (4) this is really a legislative issue. o Rule: Race is not a sufficient showing of arbitrariness if (1) there are adequate safeguards,
(2) there is no showing of a race factor in a particular