Criminal Laws
The legislature is generally free to define crimes and apply punishments as it sees fit, as long as they don't
violate the constitution (Bowers v. Hardwick, Shatz, 95).
Punishment
Forms of punishment fall into the following categories (United States v. Bergman)
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death penalty
corporal punishments
imprisonment
fines and restitution
"shaming" punishments
Principles
There are three fundamental principles structuring American law (Shatz, 30):
legality
The requirement that laws clearly define crimes in advance of the conduct sought to be punished.
vagueness
A statute may be declared "void for vagueness" for either of two reasons (Papachristou v. City of
Jacksonville):
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fair notice: If the normal person can't understand it.
arbitrary enforcement: If the law could be applied to activities that could also be legal, making
the police act on other criteria than the statute.
proportionality
The requirement that punishment or the degree of punishment bear some relationship to the seriousness
of the conduct to be punished. Because the legislature has so much control over creating punishments, a
punishment can be declared cruel and unusual because it is disproportionate to the crime only in extreme
cases (Harmelin v. Michigan).
equality
The requirement that the law accord the same treatment to all similarly situated classes of law violators.
(This relies on the Equal Protection Clause of the Fourteenth Amendment.) In other words, the law does
not discriminate, either on its face or in its enforcement (Yick Wo v. Hopkins, see also Papachristou v.
City of Jacksonville, People v. Superior Court (Caswell)). However, a statute may discriminate if there
is a "compelling state interest" and a purpose separate from the discrimination is served (Michael M.
v. Superior Court).
Criminal Conduct
For a crime, there must be a criminal act (actus reus) or omission (Shatz, 97), as well as a criminal mental
intent (mens rea—"guilty mind") (Shatz, 129). Introducing evidence to rebut either the actus reus or the mens
rea is a negative defense.
actus reus
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status: The act being punished cannot simply be a status (e.g. addiction to narcotics without evidence
of use, Robinson v. California). Status is distinct from condition (such as the public intoxication of an
alcoholic), which does constitute an act (Powell v. Texas).
omission: An act can be an act of omission, but only if there is a duty to act, such as a duty imposed by
statute (People v. Heitzman).
mens rea
There are three ways to prove criminal intent, and the method used varies by crime according to statue (Shatz,
129):
subjective fault
Requires proof of the particular actor's actual state of mind regarding the actions and/or circumstances.
Intoxication or insanity can be introduced to rebut any subjective fault crime, with the exception that it
cannot rebut implied malice of a murder.
objective fault
Requires that a reasonable person would have had the required intent in those circumstances.
strict liability
A few crimes hold the actor strictly liable, without requiring any proof of mental state. These are
usually general welfare crimes, determined by (In re Jorge M.):
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Legislative history and context
General provision on mens rea
Severity of punishment
Seriousness of harm to the public
Difficulty of ascertaining facts
Difficulty of proving mental state
Number of expected prosecutions
The California Supreme Court has further divided crimes into two categories(Shats, 129-130):
general intent
Evidence of the intent to perform the actual act is all that's needed. This category covers all objective
fault crimes and some subjective fault crimes (Shats, 129-130).
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Without the need for an intent for anything further than the act, intoxication is no defense for
general intent crimes (People v. Hood).
Assault in California is a general intent crime, requiring only that a reasonable person would
know that an act would create a battery (People v. Hood, People v. Williams).
specific intent
Evidence is needed of an intent not only to perform the act, but also of an intent to perform some
additional act or achieve some additional consequence (Shats, 129-130). These are all subjective
intent crimes.
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Diminished capacity can be introduced in the guilt phase of a trial to show that the defendant
lacked the required intent (People v. Wetmore).
Intoxication can also be introduced to rebut specific intent crimes, as they are crimes.
Intoxication is not a defense if the actor actually intends to do the additional act or achieve the
additional consequence, but intoxication may still be used for an affirmative defense such as
necessity (People v. Scott).
Negative Defenses
force
(actus reus) One is not liable for an act that someone else forces the defendant to do (e.g. forcibly
removed by the police, In Re David W.).
unconsciousness
(actus reus) If not self-induced, unconsciousness is a complete defense to the actus reus element and
therefore to the crime (People v. Newton).
insanity, diminished capacity/actuality, mental defect
(mens rea) The defendant can use these defenses for any subjective fault crime, which requires proof of
the defendant's actual intent. (This includes all specific intent crimes and a few general intent crimes that
require elements of, for instance, malice or knowledge.)
intoxication
(mens rea) The defendant can use a defense of intoxication for any subjective fault crime except the
implied malice of a murder. Intoxication can be used as a defense for general intent crimes to disprove a
required element of a general intent crime (e.g. knowledge that goods were stolen, People v. Reyes).
mistake of fact
(mens rea) If the crime is not a strict liability crime, a reasonable mistake of fact concerning one of the
elements of the crime is a defense (People v. Hernandez).
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A mistake of fact is not a defense if it merely concerns the degree of the crime (e.g. selling
marijuana to a minor, which is illegal even if the buyer is not minor) (People v. Hernandez).
Mistaking the age of a victim in a statutory rape crime is a legitimate mistake of fact (People v.
Hernandez).
Some crimes may be so extreme (evidenced by a harsher punishment, for instance) that strict
liability may be enforced, disallowing mistake of fact (e.g. lewd conduct with a very young
girl, People v. Olsen).
As lack of consent is an element of rape, a reasonable mistake of fact as to the willingness of a
rape victim is a defense if the conduct of the victim is equivocal (even if only according to the
defendant, if the jury believes the defendant) (People v. Mayberry). Rape victims do not have to
resist in order to prove rape, however (People v. Barnes).
mistake of law
(mens rea) Mistake regarding the law or some legal concept is usually not a defense (Shatz, 193). There
are some borderline situations, though:
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causation
If the crime contains an element requiring require proof of the defendant's knowledge of the law
(e.g. to which types of things the law applies), mistake of law regarding that application could be
a defense (People v. Goodin).
If a statute requires some unlikely knowledge the defendant is unlikely to know, especially with
no action on the part of the defendant, that statute could violate due process requirements of
notification (Lambert v. California).
A California court of appeal has ruled that even ignorance of another law, separate from the one
under which the defendant is being prosecuted, is no excuse (People v. Snyder).
"Some authorities have suggested that reliance upon the erroneous advice of governmental
authorities might constitute an exception to the general rule that a mistake of law is no defense"
(dicta, People v. Snyder).
Whether an action is a proximate cause of the result relies on several factors, the most important of
which is foreseeability Causation of death requires that the defendant act was the cause-in-fact of
death, and that there was no intervening unforseeable cause (Shatz, 285).
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The results must be foreseeable from the actions (People v. Roberts).
Any intervening actor must not be a free moral agent (People v. Roberts).
Any intervening act must occur within a reasonable time period (People v. Roberts).
Any intermediate acts are part of the "natural and continuous sequence" of events (People v.
Armitage).
Contributory negligence by the victim is not a superseding cause (People v. Armitage).
Affirmative Defenses
self-defense (justification)
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Self-defense is not available if one starts a quarrel with the intent to use deadly force (People v.
Hecker).
Self-defense is not available for those who agree to a deadly combat (People v. Hecker).
If one, not at fault, is placed in a situation in which a reasonable person would think one would
get killed, one can kill in self defense, staying or even pursuing (People v. Hecker).
If one makes a felonious assault and the other responds, the first must make clear that the first is
backing down before self-defense is available (People v. Hecker).
If one makes a less-than-felonious assault, one may use self-defense because the assault did not
warrant a deadly response, but one must first decline the strife unless there isn't enough time
(People v. Hecker).
Perfect self-defense requires defendant have an actual and reasonable belief of the need for
self-defense, and this is a defense for murder and manslaughter (People v. Humphrey).
Imperfect self-defense only shows an actual belief but not a reasonable one, and is a defense
only for murder, not for manslaughter (People v. Humphrey).
Battered Women's Syndrome can be presented as evidence of actual belief (People v.
Humphrey).
Battered Women's Syndrome can also be presented to explain how a reasonable person
would act, because one must consider the situation from the defendant's point of view and the
theory describes how it can make the defendant more sensitive to impending danger (People v.
Humphrey).
One cannot resist lawful or unlawful arrests (People v. Curtis).
If an arrest is unlawful, resisting will not create a separate crime other than the assault or battery
involved while resisting (People v. Curtis).
Reasonable self-defense is allowed when an arrest uses excessive force (People v. Curtis).
use of force to prevent crime or apprehend criminals (justification)
In general (including in California), one may use reasonable, non-deadly force to prevent a crime or
to apprehend a criminal.
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A mechanical device is not considered to be just as if the defendant were present (unlike in
torts) and do not satisfy this defense (People v. Ceballos).
It is unconstitutional to to use deadly force to apprehend an unarmed, nondangerous suspect
(Tennessee v. Garner).
necessity and duress (justification)
Necessity and duress are recognized despite the lack of a statutory framework (Shatz, 579). Duress
excuses criminal conduct where the actor was under an unlawful threat of imminent death or serious
bodily injury (Shatz, 579). Necessity is when physical forces beyond the actor's control make illegal
conduct the lesser of two evils (Shatz, 579). (contrast Regina v. Dudley and Stephens)
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There is a five-part test for duress/necessity (People v. Pena):
1. The act is done to prevent a significant evil.
2. There is no alternative.
3. The harm caused by the act is not disproportionate to the prevented harm.
4. There is a good-faith belief the act was necessary.
5. The belief is objectively reasonable under all the circumstances.
6. Accused did not substantially contribute to the creation of the emergency.
Duress is available as a defense to any crime except taking the life of an innocent person (People
v. Pena).
Durress can be used as a defense for crimes to protect third parties (People v. Pena).
One can escape from prison out of necessity if (People v. Lovercamp):
1. The prisoner is faced with a threat.
2. There is no time for complaint or complaints have been futile.
3. There is no time to resort to the courts.
4. There is no evidence of force or violence towards others in the escape.
5. The prisoner immediately reports to proper authorities.
entrapment (excuse)
Excuses the defendant's criminal conduct because of police conduct aimed at inducing the defendant to
commit the crime (Shatz, 599). The Supreme Court has ruled that outrageous police conduct doesn't
violate due process if the defendant was predisposed to committing the crime (Hampton v. United
States).
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objective test: (California) Would the agent's actions would induce a normally law-abiding
person to commit the crime? This test seeks to deter overreaching of police conduct (People v.
Barraza).
subjective test: (Supreme Court) Examines the character, predisposition, and subjective
intent of the defendant.
insanity (excuse)
Mental disease or defect at the time the crime was committed constitutes a defense of insanity. The
defendant may show that he/she did not form the required stated mental, or may show the affirmative
defense of "legal insanity" (Shatz, 614-615). The insanity defense developed thus:
1. "wild beast" test: (Nineteenth Century England) If one is totally deprived of understanding
and memory, and does not know what he/she is doing, "no more than an infant, than a brute, or
a wild beast..." (Shatz, 615).
2. M'Naghten test: (first modern insanity test, first in California) The defendant has a "disease of
the mind", and (Shatz, 615):
o The defendant doesn't know the nature and quality of the act, or.
o The defendant did not know that what he/she was doing was wrong.
3. "irresitable impulse" test: Supplement to M'Naghten that allowed the insanity defense if there
was an impulse which the defendant was powerless to control, even if the defendant knew what
he/she was doing was wrong (Shatz, 616).
4. Durham test: (DC Circuit, 1954) The insanity defense was allowed the unlawful act was the
product of mental disease or mental defect, and removed constraints on expert testimony
(Shatz, 616).
5. Model Penal Code: (1962) "A person is not responsible for criminal conduct if at the time of
such conduct as a result of mental disease or defect he lacks substantial capacity either to
appreciate the criminality [or wrongfulness] of his conduct or to conform his conduct to the
requirements of law" (Shatz, 616, quoting Model Penal Code § 4.01).
6. Proposition 8 (California) Reverted from the Model Penal Code back to the M'Naghten rule.
The "nature and quality" and "knowledge of wrong" parts of the test are different and
independent (People v. Skinner). It is sufficient that the defendant not understand the act to be a
moral wrong, not that the defendant did not understand the act to be a legal wrong (People v.
Skinner).
Insanity can be caused by voluntary drug use, as long as the insanity is "settled" and in effect
separate from the drug use, though not necessarily permanent (People v. Kelly). This was later
modified to prevent insanity from being shown "solely on the basis of a personality or adjustment
disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances ..." (PC § 25.5,
Shatz, 632).
Homicide
murder
The unlawful killing of a human being or a fetus with malice aforethought (PC § 187(a)), which can
be either express malice or implied malice (PC § 188):
express malice
There is manifested a deliberate intention to unlawfully kill (PC § 188).
implied malice
When no considerable provocation appears, or when the circumstances attending the killing show an
abandoned and malignant heart (PC § 188). If unintentional, the defendant must have a subjective
awareness of a risk (unlike gross negligence, which only requires that a reasonable person would have
been aware of the risk (People v. Watson)). This is a "wanton disregard for human life" if an act or
omission involves a large probability that it will result in death (People v. Burden). In other words
(Walker v. Superior Court),
1. There must be a high probability of death.
2. The defendant must be subjectively aware of the risk.
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Murder defaults to second-degree murder (PC § 189).
No further mental state need be shown if intent and malice are shown (PC § 188).
The killing can stem from an act or an omission (People v. Burden).
Voluntary intoxication can be a defense to the specific intent to kill, but not to express malice
by itself to reduce murder to voluntary manslaughter like a heat of passion defense(People v.
Saille).
Cultural background can provide evidence for a defense, addressing 1) premeditation and
deliberation and 2) malice aforethought and heat of passion, but not specific intent to kill
(People v. Wu.).
first-degree murder
All murders that fit the following criteria (PC § 189):
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6 Means: Perpetrated by means of:
1. a destructive device or explosive
2. knowing use of ammunition designed primarily to penetrate metal or armor
3. poison
4. lying in wait. Evidence can include watching and waiting, concealing a weapon, and
luring a victim (People v. Ceja)
5. torture
6. an other kind of willful, deliberate, and premeditated killing. There must have been an
intent based upon a pre-existing reflection, performed as part of a preconceived plan,
determined by (People v. Anderson):
1. evidence of what defendant did prior to the killing (People v. Wharton)
2. the victim's prior relationship with the victim implying a motive (People v.
Wharton)
3. facts about the nature of the killing that would imply a preconceived design for a
reason
At least strong evidence of (1) is needed or evidence of (2) in conjunction with (1) or (3).
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13 Felonies: Committed in the perpetration of, or attempt to perpetrate:
1. arson
2. rape
3. carjacking
4. robbery
5. burglary
6. mayhem
7. kidnapping
8. train wrecking
9. sodomy accomplished with a minor or against the victim's will or in a state prison or jail
(PC § 286)
10. lewd act on child (PC § 288)
11. oral copulation accomplished with a minor or against the victim's will or in a state prison
or jail (PC § 288a)
12. anal or genital penetration by foreign object for sexual purpose accomplished with a
minor or against the victim's will (PC § 289)
13. any murder which is perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict death
first-degree felony-murder: In essence a strict-liability rule that makes one guilty of firstdegree murder if there is an unlawful killing ("whether intentional, negligent, or accidental")
during an attempt to commit a felony (People v. Dillon) that is one of the 13 felonies enumerated
in PC § 189. Malice is not part of the definition of felony-murder (People v. Dillon). Felony
murder is a "disfavored doctrine," the purpose of which is "to deter felons from killing
negligently or accidentally during a felony" (Shatz, 297).
o The felony-murder rule does not apply when the killing is not committed by one of the
felons (e.g. a robbery victim resisting a robbery, People v. Washington).
However, if the defendant's conduct is sufficiently provocative (e.g. the defendant
saying he/she will kill someone, not just waving a gun around) of lethal resistance and a
victim shoots one of the felons, the defendant can be convicted of murder through a
vicarious liability theory using implied malice (Taylor v. Superior Court). (But see In Re
Joe R., in which threats of death were deemed conditional, meant only to further the
crime.) Implied malice would even be present if the defendant puts a victim in "direct
and immediate danger" (e.g. using a victim as a human shield, Pizano v. Superior
Court) as long as that action is the proximate cause of the victim's death (In Re Joe R.). If
multiple defendants show malice and one was the proximate cause, they can all be
convicted of murder, even if it isn't known which is the proximate cause (People v.
Sanchez).
o
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The felon must specifically intend to commit the underlying felony. (e.g. the underlying
felony cannot be "presumed", as this would "compound ... fictions", People v. Sears).
escape rule: The escape from any felony is still part of the felony for the purposes of the
felony-murder rule (People v. Kendrick, People v. Cooper, Shatz, 321).
second-degree murder
The default type of murder: all murders that are not first-degree murders (PC § 189). That is, malice or a
substitute is shown (PC §§ 187-188). People v. Saille, In Re Christian S.
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second-degree felony-murder: A strict-liability rule that makes one guilty of second-degree
murder if there is a homicide that is a direct causal result of the commission of a felony
inherently dangerous to human life (other than the [13] felonies enumerated in Penal Code, §
189). "Inherently dangerous" means "a high probability that death will occur", which essentially
substitutes for implied malice (People v. Patterson).
o Only the felony in the abstract, not the specific events, are considered to determine
inherent dangerousness (People v. Patterson).
o merger rule: Second-degree felony-murder does not apply when the underlying felony is
too closely connected to the death—when the underlying felony is an "integral part of"
and "included in fact" in the homicide. (The exception is if the underlying felony was
committed with an "independent felonious purpose.") (People v. Smith) The merger rule
has been restricted to an underlying felony of assault (People v. Hansen).
manslaughter
The unlawful killing of a human being without malice (People v. Berry). This can be intentional
manslaughter, unintentional manslaughter, or vehicular manslaughter.
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"heat of passion": This defense reduces murder to manslaughter. Requires a "a sudden
quarrel" or even "continued provocatory conduct" that would render an ordinary person of
average disposition liable to act rashly or without due deliberation and reflection (People v.
Berry, People v. Wu.). Before Berry, the generally recognized categories of provocation were
(Shatz, 215):
o serious physical injury or assault
o mutual combat
o illegal arrest
o witnessing one's spouse in the act of adultery
gross negligence: Gross negligence is continuing to act if a reasonable person would have been
aware of a risk (People v. Watson). Therefore, sincere belief does not remove negligene as a
matter of law (Walker v. Superior Court). Gross negligence gets manslaughter, while implied
malice gets murder. This is aggravated, culpable, gross, or reckless negligence that is simply
incompatible with a proper regard for human life; if there is a large probability that death would
occur and the defendant is aware of the risk, this turns into implied malice bringing seconddegree murder (People v. Burden).
misdemeanor-manslaughter: Commission of a misdemeanor that results in a killing establishes
involuntary manslaughter if the offense was dangerous under the circumstances of its
commission, not just inherently or dangerous in the abstract (People v. Cox, clarifying People v.
Stuart).
o If the the misdemeanor is committed with malice, it will result in murder rather than
manslaughter, because misdemeanor-manslaughter is only for crimes committed without
malice (People v. Nieto-Benitez).
o There is no merger rule for misdemeanor-manslaughter.
Theft
embezzlement
The fraudulent appropriation of property by a person to whom it has been intrusted (PC § 503).
extortion
The obtaining of property or official favors from another, with consent, induced by wrongful use of
force or fear, or under color of official right (PC § 518).
false pretenses
The fraudulent appropriation of title to another's property. (Shatz, 377).
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A false promise of future use to acquire property is the same as false pretenses (People v.
Ashley).
forgery
The fraudulent creation of a false document with apparent legal significance (PC §§ 470-).
larceny
To take and carry away property with the intent to permanently deprive the owner of the property
(PC § 484). (animus furandi: "felonious taking")
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There must be an intent to "wholly and permanently deprive the owner" of the property, not
just to take it and then return it (People v. Brown).
"Intent to deprive" covers an intent to sell the property back, an intent to seek a reward for the
property's return, and an intent to get a refund for the property (People v. Davis).
A good faith belief in defendant's ownership negates felonious intent. (When dealing with
money, this defense only applies to the actual bills or coins in question.) (People v. Tufunga)
There must be both an act and an intent working together—the taking can't be incidental to
some other crime (People v. Green).
The defendant need not seek personal gain—an intent to permanently deprive the owner of the
property is enough (People v. Green).
misappropriation
Appropriation of found property for own use without reasonable and just efforts to find the owner
and restore the property (PC § 485).
receiving stolen property
To buy, receive, or steal property knowing the property to have been stolen. One cannot both steal
and receive the same property (PC § 496(a), see also People v. Rojas), although the crime of attempt to
receive stolen property doesn't require the goods be stolen (People v. Rojas).
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The goods must actually have been stolen (People v. Moses).
robbery
The felonious taking of property from another, from his/her person or immediate presence, against
his/her will, accomplished by force or fear (PC § 211).
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Burglary
If use of fear is shown, it does not have to be proven that the victim was actually scared
(People v. Hays).
The victim can by constructively present if they remove themselves only to a safe distance.
(People v. Hays).
burglary
Entering a building when the doors are locked with the intent to commit larceny or any felony (PC §
459).
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The entry must be without consent or possible to be denied. Therefore, one cannot burglarize
one's own home (People v. Gauze).
Mailing a forged check or inserting a forged check or credit card does not violate the
occupant's possessory interest in the building, and is therefore not burglary (People v. Davis).
Entry into any room will suffice, even if the defendant already entered the house with
permission (People v. Sparks). (Contrast the Model Penal Code, which states that the room must
be a separate secure location.)
The intended larceny or felony may occur later or at a different location (People v. Kwok).
Making a copy of a key is just like stealing the key itself, as this steals the owner's exclusive
right to control access (dicta, People v. Kwok).
All enterings that meet the requirements of § 459 are burglary, even if they pose no physical
danger, unless (People v. Salemme):
o The defendant has an unconditional possessory right to enter as an occupant of the
structure, or
o The defendant is invited by the occupant who knows of and endorses the defendant's
felonious intent.
Inchoate Crimes
attempt
Attempt crimes are usually punished with have the penalty of the corresponding completed crime (PC §
664).
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There are two ways to determine if there was an attempt (People v. Staples):
o When the last proximate action is completed yet for some reason the crime does not
happen, or.
o When the act goes beyond mere preparation and turns into an unequivocal and direct
step toward committing the crime.
Once an attempt has occurred, one cannot undo the attempt by ceasing the attempt (People v.
Staples).
One can attempt a crime that itself contains an element of intent to attempt (e.g. attempting an
abortion, which itself requires an act with an attempt to kill a fetus, People v. Berger).
One cannot attempt to have implied malice, so one can only attempt second-degree murder if
there is express malice (People v. Collie).
Solicitation to commit a crime is not an unequivocal overt act needed for an attempt (People v.
Adami).
solicitation
Solicitation occurs if the defendant asks another to commit a crime with the intent that the crime be
committed (People v. Gordon).
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The request does not have to be in words (People v. Gordon).
One cannot undo a solicitation afterwards by changing one's mind—the crime has already been
committed (People v. Gordon).
Public speech can be solicitation if (People v. Rubin):
1. It is directed at inciting imminent lawless action, and
2. It is likely to incite or produce such action.
conspiracy
When two or more parties agree to commit a crime (or a lawful act by criminal or unlawful means) and
one of them then commits an overt act toward the agreed-upon crime (Shatz, 476).
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Conspiracy requires both the knowledge of illegal use of goods and the intent to further that
use. The intent can be established in several ways (People v. Lauria):
o Direct evidence of an intent to participate.
o Through an inference of intent to participate based upon:
 Special interest in the activity, or
 The aggravated nature of the crime itself.
o Intent can be inferred from knowledge when:
 The purveyor of goods has some sort of stake in the venture (through inflated
prices, for example), or
 There is no legitimate use of the goods or services, or
 The volume of business is grossly disproporitionate to any legitimate demand,
or
 The crime is particularly bad, such as some felonies.
One can be brought to trial on conspiracy charges soly upon a reasonable suspician (Lorenson
v. Superior Court).
One can be convicted of conspiracy if coincidental activities give more than a mere suspician
that acts may have been in furtherance of a common plan to accomplish an unlawful purpose
(Lorenson v. Superior Court).
One cannot conspire to commit second-degree murder with implied malice, because
solicitation requires an intent, and intent means express malice (People v. Swain).
If there exists a narrower statute of a crime that includes the element of conspiracy (such as
Three-Card Monte), the narrower statute should apply instead of general conspiracy. (People
v. Mayers).
impossibility (defense)
It is a defense if the object of an inchoate crime is a legal impossibility, but not if it is a factual
impossibility (Shatz, 503).
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Factual impossibility is no defense for attempt or conspiracy, because neither require the
completion of the object crime (People v. Peppars).
If police seize stolen property, one cannot be convicted of receiving stolen property as the
property is no longer stolen, but one can still be convicted for an attempt to receive stolen
property, as the intent of attempt doesn't require there actually be stolen property to receive
(People v. Rojas).
There cannot be a conspiracy with thieves to receive stolen property, as this would mean the
defendant received stolen goods from himself/herself (People v. Rojas).
Vicarious Liability
Vicarious liability is based on the premise that, if someone conspires or aids and abets a crime, that person
effectively says to the principal, "Your acts are my acts." (People v. Luparello).
accomplices
Persons who aid and abet, advise, or encourage criminal conduct (Shatz, 644). An aider and abettor
must have knowledge of the criminal intent of the principal, and an intent to commit, encourage, or
facilitate commission of the offense (People v. McCoy)—not just knowledge of the principal's intent
(People v. Beeman).
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To be an accomplice, the principal actually has to commit a crime (People v. Collins). The
principal might bring a defense and even be acquitted, however, and the accomplice could still
be guilty (People v. Williams).
An aider and abettor can be convicted of a greater crime than the perpetrator, because once the
aider and abettor's actus reas is linked with the direct perpetrator, the mens rea is independent
(People v. McCoy). This means that there is no due process violation—the aider and abettor is
charged with a different but equivalent mens rea (People v. Luparello).
natural and probable consequences doctrine: An aider and abettor is be guilty of any natural
and probable consequence of the crime of the direct perpetrator (People v. McCoy). An
accomplice can be liable for only a degree of crime (such as murder) that is a "reasonable and
probable consequence" of the crime, even if the principal also committed a higher degree of
crime (People v. Woods).
It is not required that the aider and abettor intends to share in the fruits of the crime or to actually
do the crime should the perpetrator fail (People v. Beeman).
The intent to be an aider and abettor must be formed before the action occurs (People v.
Cooper).
For robbery, aiding and abetting can occur as long as the intent is performed before or during the
carrying away of the loot to a place of temporary safety. The "escape rule" describing escape
even after the loot has been transported does not apply to aiding and abetting (People v. Cooper).
California has a statutory crime of aiding and abetting a suicide if done passivily—if solely the
means was supplied. A genuine attempted suicide pact should receive an aider and abettor to a
suicide sentence, if (In Re Joseph G.):
1. the suicide pact is voluntary,
2. the instrumentality precluded fraud, and
3. the attempted suicide was simultaneous.
Extent of Vicarious Liability
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Conspirators are guilty of the "ordinary and probable effects" of actions that are the "common
design" of a conspired crime (People v. Kauffman). Even a "joint expedition" of crimes can be
considered a crime in which the aider and abettor cooperates but the principal kills a policeman,
resulting in the aider and abettor being guilty as well, if the principal's act is a probable consequence
(People v. Durham).
Death Penalty and the Constitution
The Supreme Court has held the death penalty in general to be constitutional. It doesn't violate the Eigth
Amendment because it reflects evolving standards of public decency and upholds the "dignity of man". Its
purpose is deterrance and retribution reflecting moral outrage (Gregg v. Georgia).
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A specific state's death penalty statute is only constitutional if it is used frequently enough to avoid the
risk of arbitrariness Furman v. Georgia). This can be assisted by adding safeguards such as those
found in Georgia in 1976 (Gregg v. Georgia):
o The jury is given guiding instructions.
o There are only certain categories of crimes that can get the death penalty.
o The jury must take into account the specific circumstances of each case, preventing "freakish"
application.
o The trial is bifurcated into guilt and sentencing phases.
o Sentences are automatically appealed.
On the other hand, a state's death penalty must allow consideration of relevant mitigating factors for the
individual (Lockett v. Ohio).
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The death penalty for rape violates the Eighth Amendment because it is disproportionate to the crime
(Coker v. Georgia).
The death penalty is for felony-murder is constitutional if there was a reckless disregard for human
life, even when the defendant did not in fact kill. (Most jurisdictions do not allow the death penalty for
felony murder simpliciter, in which the defendant had relatively little participation and no intent to kill.)
(Tison v. Arizona)
The Supreme Court has ruled that a state's death penalty is constitutional even if its application is
effectively racially discriminatory as demonstrated statistically (McCleskey v. Kemp).