MONTEREY COLLEGE OF LAW Mid-Term Examination · PDF fileMONTEREY COLLEGE OF LAW Mid-Term...

MONTEREY COLLEGE OF LAW Mid-Term Examination

2010

CRIMINAL LAW

Professor Brannon

Instructions

1. Bluebook Users-- Please write your examination number (not your name) on the cover of each of your bluebooks. Number your bluebooks. Return every page of this examination along with your bluebooks. Write on only one side of each bluebook page. Your answer must be double-spaced. Make sure your answer is legible. You will get no credit for sentences that I cannot read.

2. Computer Users- Please type your examination number (not your name) at the beginning and end of your essay. Return every page of this examination along with your answer.

3. Make sure that you read the question carefully before answering. State clearly any assumptions that you make.

4. This is an open book exam. You may ONLY use your casebook, your Dressler Outline, any written materials that I distributed in class, and any notes and/or outlines that you prepared yourseif. You may not consult other materials or other students.

5. This examination consists of three questions. The answers to questions (1) and (2) are each worth 30% of your grade; the answer to question (3) is worth 40% of your grade. It is suggested that you allot proportionately more time to complete question (3). There is a three (3) hour time limit to complete the examination. You are being tested primarily on your ability to apply law to fact. The best answer is one that includes a succinct statement of the relevant legal principles, followed by a detailed analysis of how these legal principles apply to the facts.

6. There are multiple issues to address in this exam. You will not have time to address all of the issues in detail. Some issues are fairly straightforward and do not require detailed analysis. Other issues are more complicated; those issues merit more extended discussion. If you are feeling pressed for time, you will get more points for addressing all the issues briefly than you will for addressing half the issues in detail.

7. Answer the questions with a focus on Common Law principles; Model Penal Code and California law should be cited if helpful to your analysis. If you reference MPC or California law, identify that source of law. Similarly, if you reference a minority Common Law rule, state that you are doing so.

Criminal Law & Procedure Fall2010 Mid-Term Examination Profs. Brannon, LaBerge & Stevens

QUESTION #1

Buzz and George celebrated the Giant's World Series win by drinking whiskey late into the night at George's house. At 1:00am, an intoxicated Buzz decided to walk to a nearby liquor store to buy more whiskey. In his stupor, Buzz stumbled into the back door of Harry's residence. Buzz pushed open the door, entered and finding a comfortable couch, Buzz laid down and quickly fell asleep.

Harry, hearing the sound ofloud snoring coming from the darkened back room, grabbed his rifle, rushed to the room, threw on the light switch, and discovered Buzz asleep on the couch. Harry fired the rifle at Buzz as he struggled to rise off the couch. As the bullet whizzed by Buzz's head, Buzz rushed at Harry, knocked him down, and beat him repeatedly in the head with the barrel of the rifle until Harry was unconscious.

As Buzz was fleeing the room he noticed Harry's wallet on a table near the door. Buzz, upset at being shot at, decided to take the wallet. He then ran back to George's house, stopping only to pick up a bottle of whiskey at the liquor store. Buzz told George the story of his encounter with Harry as they drank the whiskey. Buzz checked the contents of Harry's wallet and discovered $300 and numerous credit cards. Buzz told George he would split the $3 00 and the credit cards with George if he could spend the night and lie low to avoid any police search for Harry's assailant. They proceeded to split the money and the credit cards.

George was arrested the next day as he attempted to use one of Harry's credit cards. George led the police to Buzz who was immediately arrested. During the course of his arrest by two uniformed officers, Buzz, extremely intoxicated, struck one of the arresting officers with the empty half-gallon bottle of whiskey, breaking the officer's jaw.

The burglary statute in this jurisdiction reads as follows: "Every person who enters any house with the intent to commit larceny or any felony therein is guilty of a felony."

The felony assault statute reads as follows: "Every person who willfully uses a deadly weapon, or force likely to produce great bodily injury, against the person of another that by its nature would directly and probably result in the application of physical force to a person, is guilty of a felony."

What charges could be filed against Buzz? Discuss?

What charges could be filed against George? Discuss

What charges, if any, could be filed against Harry? Discuss

What potential defenses are available to Buzz? George? Harry?

2

Question 1 Answer Evaluation

Exam#

BUZZ-15 Discussion Points:

1) Burglary YL tC.-'1 ~ U\)9

2) Larceny V~<t-'1 'Jc)JO

I· 3) Attempted murder/attempted voluntary manslaughter on Harry t/.IS ( v·SS'.(;c? ~~OA(S,tf"[_-_ ·( <::~<1]1rJ:::> '"·lj'·l-' C-1 1 .... (')" -J·--;~-11,/l 4) Felony assault/battery on Harry 1Jifi/V6' I v .;;L J }~'] Jv L.- v·u·· I c,· l /V lt \}(/\Jj v·l ~·

5) Felony assault/battery on a police officer ). :}vt'L_ /:l~ J(.,;',...c- 1 :Sc;? I c T/-J/'·l, H L j <.) W f) J t::J11,0• r/~:i LJ p '/ '' I.-.., •. ,

· L) {Ortr ·;; ,/ 5 l:O Defenses:

6) Voluntary intoxication (specific intent crimes only) ~:X~C'l.. llW/

7) Self-defense in response to unlawful use of force by Harry 0 )f

8) Extra credit: Derivative culpability for George's attempted use of credit card on aiding and abetting or conspiracy

theory/Why no robbery/Other

GEORGE-7 Yz Discussion Points:

2) Larceny of cash and credit cards-trespassory taking? f\)~ 'T

3} Accessory after the fact for Buzz' crimes at Harry's .,. \''l,-t~·~t ~~

4) Attempted larceny for use of credit card ... (')((:)( t;! 1 J ( V ,} ~ t:;;;.>

Defense:

5) Voluntary intoxication (specific intent crimes only) ~\)\},(.}

/",/6) Extra credit: Derivative culpability for Buzz' felony assault on a police officer on aiding and abetting or conspiracy

theory (though applicability highly unlikely) / f.)'.) }t-'l f :-1; [ (

--""'~-·-,\

HARRY-7 Yz Discussion Points: ('w ·7 ) \,. './'

1) Attempted murder/attempted v~-~t~ry manslaughter on Buzz ,... \('f:;/l"·r . '.· ~ ~·

2) Felony assault on Buzz

Defenses:

3) Defense of habitation •

4) Self-defense ...

TOTAL POINTS:

,. /

People v. Buzz (B)

Burglary

In this jurisdiction burglary is defined as a person who enters any house with the intent to

commit larceny or any other felony therein.

Enters a house

Here the facts state that B entered the house of Harry. This shows the element of entering a

house is satisifed.

Intent to commit larceny or any other felony therein

The facts state that B entered the house because he was in a drunken stupor. Upon entering

he laid down on the couch and went to sleep. The facts do not suggest that B had the intent to

commit any crime when he entered Harry's house, he was just in a drunken stupor. The fact

that he took the wallet will not qualify as a larceny as far as finding B guilty of burglary. The

facts state that B did not form the intent to commit the larceny until after he was inside the

house and therefore the intent element for the crime of burg airy is not met.

Larceny

A larceny is the trespassory taking and carrying away of the tangible personal property of

another with the intent to permenantly deprive the owner of his interest in the property.

Trespassory taking and carrying away

The facts state that B took Harry's wallet without his consent thus showing a trespassory taking.

B then left the house with the wallet and brought it all the way back to George's house. This

shows a carrying away as the element of carrying away need only be a matter of inches.

Page 1 of 6

(Question 1 continued)

Therefore the element of taking and carrying away is met.

Personal property of another

The facts state that the property was the property of Harry. It was Harry's wallet and not B's.

Intent to permenantly deprive

The facts state that B brought the wallet back to George's house where they split the money.

This shows an intent to permenantly deprive because by splitting the money B never intended

to give it back.

Therefore it is most likely that B will be guilty of larceny.

Battery

Battery is an act by the defendant which results in harmful or offensive contact with the person

of another. Here the facts state that B knocked Harry down and beat him unconscious but

hitting him multiple times in the head until Harry was unconscious. Under the common law a

battery may bE? considered an aggravated battery if the defendant uses a deadly weapon or

causes serious bodily injury. Here the facts state that B hit Harry with a gun which knocked

Harry out. This is most likely a great bodily injury. Because B voluntarily acted and his act

caused great bodily harm to the person of Harry it is most likely that B will be charged with

aggravated battery.

B will also be charged with the battery of the police officer. The facts state that B struck an

officer and with a bottle and broke his jaw. This was a voluntary act which caused harm to the

person of the officer. Under the common law this may be an aggravated battery because it

caused serious harm and also under the common law a battery to a police officer is an

aggraavated battery.

B may also be charged with an assault in both of these cases. an assault is an act by the

defendant which places the plaintiff in a reasonable apprehension of imminent battery. Here, if

Harry or the officer saw the attack from B coming B would be guilty of assault.

Page 2 of6 \ l

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Defenses

B will claim the defense of voluntary intoxication. Voluntary intoxication is a defense to a

specific intent crime only and therefore will not apply to the assault and batteries. However, B

will claim that because he was intoxicated he was unable to form the specif intent to steal that is

required for the larceny of the wallet. The prosecution will argue that B took the wallet because

he was mad at Harry for shooting at him and therefore he was able to form the required intent.

Also his acts of giving half the money to George tend to show that he was able to form the

intent to steal. This defense will most likely fail.

B will also argue self defense for the battery of Harry. He will argue that he used deadly force in

response to deadly force. This may work as B was not the agressor, he was in imminent fear of

deadly force against himself, and the force was reasonable to prevent GBI injury to B.

{;v'kt::.}j-- /:J3~)/:r- f)~11<.JJ/vr--conclusion for Buzz /- <'

fl)/lC ), L/) (0 s '2-('7l:l:; t", '\

Buzz will most likely be guilty of the larceny for the wallet and the batteries and assaults ~g't!is'n'f~ '---

the police officer. His defense of self may prevail for his assault and battery of Harry and his

defense of intoxication will fail for the larceny. He will be not guilty of burglary as he didn't have

the required mens rea at the time of the act, there was no concurrence.

People v. George (G)

Receiving Stolen Property

A person is guilty of receiving stolen if he recieves property he knows to be stolen with the

intent to permanently deprive the owner.

Here the facts state that B came home and told G that he had stolen the wallet from Harry. B

then gave G the wallet and said he could have half of the money. G knew the wallet was stolen

and therefore he knew he was recieving stolen property. Because the facts show that G tried to

spend the money the next day this shows he had the intent to permanently deprive the owner.

Page 3 of6

1-...

;$ t ~~~ ;-


Accessory after the Fact

Under common law accessory after the fact occurred when a person intentionally aids and

abetts the principal after the crime has been committed in order to hide them from the police.

Here the facts show that G agreed to harbor B and let him spend the night after G knew of the

crimes committed by B. This shows that G intentionaly aided and abetted B after the fact.

Accomplice Liability

The prosecution may argue that G was an accomplice of B and should therefore be liable for

the crimes committed by B. However, G only knew about the crimes and under the common law

mere knowledge or a crime will not make a person an accomplice.

Defenses

.G will argue the defense of intoxication for his two crimes. Voluntary intoxication is a defense to

a specific intent crimes only. G will claim that he was too intoxicated to form the intent to

deprive for the receipt of stolen property. However, the prosecution will show that G attempted

to use the credit cards the next day showing that he had the sufficient intent to deprive. G will

also argue that he lacked the intent to aid and abet B.

Conclusion for George

George will most likely be guilty of receiving stolen property and as an accessory after the fact.

People v. Harry (H)

Attempted Murder

An attempt is an act which in done in furtherance of a crime but comes short of actual

completion. A person must intend the act and also intend the completion of the crime. For

attempted murder the person must have the intent to kill. Under the common law a person is

guilty of attempt if their act comes so near to the result that the danger of success is very high.

Here the facts state that H shot a gun and the bullet grazed by B's head. Using the deadly

Page 4 of6


weapon shows an intent to kill under the common law deadly weapon rule and the act came

dangerously close to completion. If Harry had had a little better aim he would have succceeded.

Because his act was dangeroulsy close to completion and the use of the gun showed an intent

to kill, H will most likely be guilty of attempted murder.

Assault

of aanother that by its nature would directly and probably result in the application of physical

force to a person. Here the facts state that H fired a gun at B's head. He intentionally and

willfully grabbed the gun and fired it and the result of the force would have directly and proably

caused the death of B. Therefore, it is most likely that H is guilty of assault under this statute.

Defenses

H will raise the defense of habitation and self defense.

Defense of Habitation

A person can uses deadly force if he reasonably believes that a person is imminently and

unlawfully about to enter his home, the person has the intent to commit a felony, larceny, or

cause even slight bodily injury, and the force is neccessary to prevent entry. H will fail using this

defense as his force was not to prevent entry as B was already in the house.

Self-Defense

A person may use proportional force in order to prevent an imminent attack to their person.

Here the facts state that H shot a gun at B when he saw him on the couch. B never threatend

force upon H and H was not preventing an imminent attack when he shot. Therefore, because

H was not preventing attack upon himself he will not be able to use self-defense.

Conclusion for Harry

Harry will most likley be guilty of attempted murder and assault.

Page 5 of6


QUESTION #2

Thelma and Louise were roommates and used illegal drugs together. They needed more money to buy illegal drugs. They agreed to break into the house of a neighbor, Bob, who illegally grew marijuana for sale and who kept large amounts of cash in his house. Further, they knew Bob was out of town and his house was unoccupied. After drinking copious amounts of alcohol and smoking some pot, Thelma and Louise then drove together to Bob's house.

Thelma and Louise parked in front of Bob's house, exited the car, opened Bob's front gate, and walked around the side of Bob's dark and unoccupied house. After reaching the rear of the house, Thelma and Louise approached Bob's locked back door, which they had planned to force open.

Unknown to Thelma and Louise, Bob had loaded a spring gun to fire if and when anyone stepped on the doormat outside his back door. As Louise reached for the back door knob, she stepped on the doormat which was wired to the spring gun; the spring gun then fired a bullet though her chest.

Thelma carried the bleeding, fatally wounded, and non-responsive Louise to the car. Panic stricken, confused, and not wanting to involve the police, Thelma drove Louise to her boyfriend Sal's house. Distraught and grieving over the apparent loss of her beloved Louise, Thelma told Sal of the attempted entry at Bob's house and the shooting of Louise. She begged Sal to help her.

Sal offered to clean the blood filled car and bury the comatose, but still alive Louise (who they both believed to be dead) in his back yard for a fee of $100. Thelma paid Sal the $100 and he buried Louise behind his backyard. A neighbor saw the back yard burial and called the police. Thelma and Sal were arrested.

At the autopsy of Louise the coroner determined: (1) that Louise died from being buried alive, not from the bullet wound, and (2) the bullet wound would have eventually killed her if she had not been buried first.

The burglary statute in this jurisdiction reads as follows: "Every person who enters any house with the intent to commit larceny or any felony therein is guilty of a felony."

For what felony crimes could Thelma, Bob, and Sal be prosecuted? Discuss.

What are their potential defenses? Discuss.

Do not discuss driving under the influence or potential charges for drug possession or sales.

3

QUESTION 2 SCORING OUTLINE

I. Thelma,Felony Crimes and Defenses-14 Points / & ,,

V 1. Conspiracy to commit residential burglary 0 Attempted burglary

a. Punishment: Attempted burglary provides only% burglary punishment while

conspiracy provides the same punishment as a completed burglary.

b. Accomplice/aiding and abetting culpability: If Thelma's acts do not constitute

attempt, did Louise's act of reaching for the door constitute an attempt?

3. Homicide culpability for Louise's death

a. Actus reus culminating with spring gun

a) Murder: Depraved heart/extreme recklessness (conscious disregard

for human life)?

i b) Involuntary manslaughter: Criminal (gross) negligence or during

commission of an unlawful act.

- ) 2) Causation: Was Thelma's intentional act of going to Sal's house to enter and /

steal the proximate/legal cause of Louise's death or was her death by spring gun

an intervening event?

1/]ll'':/ 3) Felony murder (burglary):

~' lj

a) Did co-felon cause death? Majority Rule: Co-felon must cause death

so does felony murder apply to these facts?

b) Res Gestae/One continuous transaction if cause of death burial?

c) EXTRA CREDIT Minority rule: Proximate cause test.

4) EXTRA CREDIT Burglary conspiracy or aiding & abetting derivative culpability:

Does not apply to these facts because co-felon must commit homicide.

b. Burial of Louise alive

_,pt;!-~·

~~""'"'~ 1) Solicitation/conspiracy to commit accessory after the fact.

"""""""'' ........ , .. ~-/'JQ'}' EXTRA CREDIT: If Sal has depraved heart mens rea concerning Louise's burial

V alive but Thelma does not, could Thelma still be derivatively culpable for Sal's

1

depraved heart murder arising from her conspiracy with Sal to commit the

felony crime of accessory after the fact {or aiding and abetting that crime)?

Depends on foreseeability of Sal's commission of depraved heart murder.

3) Mens rea concerning burial:

a) Murder: Depraved heart/extreme recklessness {conscious disregard

for human life)?

b) Involuntary manslaughter: Criminal {gross) negligence or during


4) Causation: Was Thelma's involvement in Louise's burial the proximate/legal

cause of Louise's death or is Bob and his spring gun the legal cause since the

spring gun wound would have killed Louise anyway?

1) Discussion of concurrent causes

4. Voluntary intoxication defense {specific intent crimes only):

a. Burglary {was Thelma too inoxicated to form intent to enter Sal's house and steal)?

1) Conspiracy culpability: Was Thelma too intoxicated to agree to enter Sal's

house to steal?

b. Murder mens rea: Was Thelma too intoxicated to consciously disregard human life

as she acted concerning a. above?

c. Involuntary manslaughter: This is a general intent crime (gross negligence is an

objective standard) therefore a voluntary intoxication defense does not apply.

5. Mistake of fact

a. Murder: Any genuine mistake of fact which negates specific intent mens rea-Does

Thelma's beliefthat Louise was alive negate depraved heart (conscious disregard for

life) murder mens rea?

b. Involuntary manslaughter: Only a reasonable mistake of fact will negate general

intent mens rea.

6. Other Extra Credit

II. Bob Felony Crimes and Defense-S Points

1. Homicide of Louise by spring gun

2

a. Defense of habitation: Common law majority rule is use of spring gun (by definition

deadly force) is justified if intruder in fact intends to commit a felony or theft or cause

even slight bodily injury.

1) EXTRA CREDIT Common law minority rule: Use justified only if intruder

intends to commit violent felony.

2) EXTRA CREDIT MPC rule: Spring guns are never justified.

b. Mens ~~discussion if defense does not lie: ,..r

\./,... 1) Intent to kill?

1 /P"''"2) Depraved heart? v

3) EXTRA CREDIT Voluntary manslaughter imperfect self-defense (no, because

Bob not defending self) .

. l··••''#'~#·;) Involuntary manslaughter: Criminal (gross) negligence or during


I

c. Causation: If spring gun homicide a crime, was Sid and Thelma's burial alive an

intervening cause? -- /f'fl ft"i,·":/ ,, ::> ~. · · $ ~J

2. Other Extra Credit

Ill. Sal Felony Crimes-8 Points '"'"\\

.,""~""""'"'':P~..:I! 1. Accessory after the fact to murder

2. Homicide of Louise

a. EXTRA CREDIT Culpability for spring gun homicide: Sal not culpable because spring

gun event occurred before Sal entered into conspiracy or aided and abetted any crime.

b. Burial mens reas (homicide):

V~~·--~ 1) Murder: No intent to kill, but depraved heart?

2) Involuntary manslaughter: Criminal (gross) negligence or during commission

of an unlawful act.

c-lCausation: Was Sal's act of burying Louise the proximate/legal cause or does the fact

I ././~hat Louise would have died anyway (from spring gun) constitute the legal cause of her /

death?

1) Discussion of concurrent causes

3

3. Mistake of fact

a. Murder: Any genuine mistake of fact which negates specific intent mens rea-Does

Sal's belief that Louise was alive negate depraved heart (conscious disregard for life)

murder mens rea?

b. Involuntary manslaughter: Only a reasonable mistake of fact will negate general

,;el . tJL~v· intent mens rea. ( \,

4. Other Extra Credit lf'V1

4

People v. Thelma (T)

Solicitation

Solicitation is an act by the defendant requesting another person to commit a crime. Here the

facts state that T gave Sal $100 if he would bury the body of Louise. She acted with the intent

to ask Sal for help and also with the intent that Sal complete the act. Therefore, T will be guilty

of solicitation.

Conspiracy to Murder

A conspiracy is an agreement between two or more people to commit an unlawful act. Here the

facts state that T and Sal agreed to bury the body of Louise. The mens reas for conspiracy is

an intent to agree and the intent that the objective of the conspiracy is acheived. Here the facts

show that T intended to ask Sal to bury the body and also intended that he actually do it. She

paid him $100 to make sure the job was done. Thad the required mens rea for conspiracy. A

co-conspirator is liable for all the foreseeable crimes committed by the other co-conspirators

that are done in furtherance of the crime. Here the facts show that when Sal buried Louise

Lousie was still alive. The prosecution would argue that it was foreseeable that Louise could still

be alive and the proper thing would to have brought her to the hospital. T and Sal did not even

cheeck to see if Lousie was alive. Because it is most likely foreseeable that Louise was still

alive and the crime of burying her alive was in furtherance of the conspiracy, as it was the

objective, Twill be liable for the murder of Louise committed by Sal (see infra under Sal).

(,' \ .. ~·~, ·t . ~ ... ~-~-~\'} ( : .. ,/;;: .. Burglary/Attempted Burglary/Conspiracy to Burglary

In this jurisdiction burgalry is defined as a person who enters any house with the intent to

commit larceny or any other felony therein. Here the facts state that T and Louise agreed to

break into Bob's house because they needed money to buy drugs and they knew he had large

amounts of cash in his house. Therefore, the two had the intent to commit a larceny. The facts

state that they proceeded to Bob's house where Louise stepped on the mat outside of the back

Page 1 of 6 1;.1

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door w~len she was shot. The two left after that. Because there was no entry of the house there

is most likely no burgalry. However, because T's acts brought her dangerously close to

succeeding and she had the intent to commit a burglary she will most likely be guilty of

attempted burglary. She will also be guilty of conspiracy to burglary because of the agreement

to burglarize the house with Louise.

Defenses

T will raise the defense of voluntary intoxication. She will claim that because she was

intoxicated she was unable to form the intent to conspire to burglarize, attempt to burglarize, or

solicit Sal. The prosecution will argue that T was sober enough to carry Louise to the car, drive

the car to Sal's without accident, and ask him to disspose of the evidence so she wouldnt get

into trouble. It is most likley that the prosecution will be able to show that Twas not too

intoxicated to form the specific intent for her crimes.

People v. Bob

r ,- ; Murder

l ~-{ l ' ... ( /

Murder is the unlawful killing of another human being with malice aforethought. {.

'

Actus Reus

In order to be criminally liable the defendant must have voluntarily acted or failed to act when

he had a duty. Here the facts state that Bob intentionally set a gun on his property. This shows

a voluntary act.

Mens Rea

There are four separate mens rea under common law murder: intent to kill, intent to inflict great

bodily injury (GBI), reckless indifference to an unjustifiably high risk to human life, and under

the felony murder rule.

Intent to Kill

Page 2 of 6

i { /

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By setting up a gun pointed at chest level to anyone who stepped on the back steps Bob had an

intent to kill. He knew that the gun would fire and by placing it at chest level he knew it would

most likely kill. Also under the deadly weapon rule which infers intent to kill when a deadly

weapon is used there is an intent to kill.

Intent to inflict great bodily injury



most likely kill or caused great bodily injury.

Reckless indifference to an unjustifiably high risk to human life



most likely kill. It is extremely reckless to aim a gun at chest level on your back door. A child or

innocent person could have stepped on the doormat whichs shows that Bob was completely

indifferent to the high risk to human life.

FMR

The felony murder rule states that a killing committed in the attempt, commission, or flight of an

enumerated felony will be murder.

Bob was not committing a felony and therefore this mens rea doesn't apply.

Causation

To be liable for the murder of Louise it must be shown that Bob's acts were the actual and

proximate cause of the death. Actual cause is found when but for the defendant's act the victim

would be alive. Here but for Bob installing the gun Sal wouldnt have buried her and she would

be alive. Proximate cause is found when the result is foreseeable. In this case it is foreseeable

that someone would die as a reuslt of the spring gun. Bob will argue that the cause of death

Page 3 of6


was the' burial and therefore that is an independant intervening cause which breaks his causal

chain. However under the intended consequences doctrine when the intent was to kill and a

killing occured in a manner that wasn't intended by the defendant he will still be guilty of

murder. Because Bob intended to kill by using the gun just because the death happenend to

occur in a different was won't break his causal chain. Therefore, Bob is the actual and

proximate cause of the death.

Defenses

Bob will argue that his acts constitute involuntary manslaaughter under criminal negligence.

This will fail as it is most likely he has an intent to kill or GBI.

Bob will also claim the defense of habitation. However, one may not use indirect force where

one would not be permitted to use direct force. In this case if Bob were home he would not be

able to shoot people who he saw approaching his back door. Therefore, his defense of

habitation will fail.

Conclusion for Bob

Bob will most likley be guilty of murder.

People v. Sal

Conspiracy to Murder

A conspiracy is an agreement between two or more people to commit an unlawful act. Here the

facts state that T and Sal agreed to bury the body of Louise. The mens reas for conspiracy is

an intent to agree and the intent that the objective of the conspiracy is acheived. Sal had the

intent to agree by accepting the money and the intent that the objective be acheived as shown

by his actual burial of Louise. Therefore Sal will be guilty of conspiracy to com mitt murder.

Murder

.J .,.,. •'·

Murder is the unlawful killing of another human being with malice aforethought.

'"'1""' / //i< ( (.r _, Page 4 of 6

'_, ( I

'


Actus Reus


he had a duty. Here the facts state that Sal voluntarily buried Louise. This satisfies the actus

reus.

Mens Rea




Intent to Kill

The facts state that Sal thought that Lousie was already dead. Because he thought she was

dead he did not have the intent to kill.


The facts state that Sal thought that Lousie was already dead. Because he thought she was

dead he did not have the intent to inflict GBI.

Reckless indifference to an unjustifiably high risk to human life

The prosecution would argue that it was foreseeable that Louise could still be alive and the

proper thing would to have brought her to the hospital. T and Sal did not even check to see if

Lousie was alive. This is most likley reckless as a reasonable person would at least check her

pulse. By burying her without firsfmaklng.sure-stie was really dead shoWs a reckless

indifference to human life.


Page 5 of6


enumerated fel'ony will be murder.

Sal was not committing an enumerated felony and therefore this mens rea doesn't apply.

Causation

To be liable for the murder of Louise it must be shown that Sal's acts were the actual and

proximate cause of the death. Actual cause is found when but for the defendant's act the victim

would be alive. Here the facts show that but for Sal burying Louise she would have eventually

died anyway because of the gunshot would. Sal will therefore argue that he was not the actual

cause of the death. However, Louise died as a direct result of the burying and the burying may

have sped up an already imminent death but the burying still did cause the death. Therefore Sal

is the actual cause of the death. Proximate cause is found when the result is foreseeable under

the circumstances. The prosecution would argue that it was foreseeable that Louise could still

be alive and the proper thing would to have brought her to the hospital. T and Sal did not even

cheeck to see if Lousie was alive. Therefore, it is most likely that Sal is the proximate cause of

the death.

Defenses

Sal will argue the defense of mistake. However, because his mistake was most likely

unreasonable he will not be successful.

Page 6 of6

I f

t

I


QUESTION #3

On August 1, 2010, Ted and Sid entered a 7-11 convenience store in Salinas. They selected two 40 oz. bottles of beer and placed them on the counter. Ted told Sid, "This one's on me." Sid replied, "Right on, because I'm broke!" Clark Clerk rang up the purchase. Ted, suddenly realizing he was SO cents short, politely asked Clerk to give him a SO cent "discount" on the purchase. Clerk refused to reduce the price.

Ted became angry and stated cursing and yelling. As Ted backed ~ut of the store, he threatened to "finish this later when you get off work" while pointing at Clerk with his right index finger and thumb cocked backward to simulate the shape of a gun. Sid, who had silently remained at the counter, suddenly decided to pick up both bottles of beer and hurried out of the store to catch up with Ted. Clerk was too afraid to say or do anything to stop Sid. After composing himself, Clerk called 911 and called for police assistance. While talking with the 911 operator, Clerk went to the front door and observed Ted slap Sid on the back as the two laughed and walked across the store parking lot, each drinking from an open beer bottle.

Officer Sly Stryker, in uniform and driving in his marked patrol car, received a call concerning a "shoplifting" in progress atthe 7-11 and responded quickly to the scene. He immediately saw Ted and Sid, who matched the descriptions of the subjects provided by County Communications, walking with beverage containers toward a car parked in front of a laundromat which was half a block from the 7-11 store.

Officer Stryker pulled into the lot, screeched to a halt, and jumped from his car. He identified himself as a police officer and ordered the suspects to set down their bottles and approach his location. Both Ted and Sid ignored his commands and continued walking toward the parked car. Officer Stryker removed his semi-automatic pistol from its holster, and pointing the weapon down toward the ground, ordered the two suspects to lie prone on the pavement. Almost simultaneously, Ted and Sid hurled their beer bottles at Officer Stryker. Officer Stryker had to quickly move and duck to avoid being hit by one bottle while the other bottle broke at his feet. As Officer Stryker dodged the bottles, Ted and Sid ran towards the parked car. Officer Stryker then discharged his pistol at Sid, fatally wounding him with two bullet strikes to the center of his back.

Meanwhile, Ted jumped into the driver's side of the car, ducked down across the front seat, and sped away in the vehicle. Officer Stryker proceeded to fire the remaining 13 rounds from his weapon at the fleeing vehicle, missing Ted.

Ted drove across the parking lot and into the adjoining street at a high rate of speed. While entering the street and while looking back towards Officer Stryker, Ted collided with a passing vehicle driven by Vicky, killing her.

Ted was arrested at the scene.

4

In this jurisdiction, robbery is a felony defined "as the taking of personal property from another's possession and immediate presence, and against his will, by means of force or fear. A robbery is not complete until the perpetrator has reached a place of temporary safety."

The felony assault statute reads as follows: "Every person who willfully uses a deadly weapon, or force likely to produce great bodily injury, against the person of another that by its nature would directly and probably result in the application of physical force to a person, is guilty of a felony."

Discuss what homicide charges, if any, should be filed against Ted.

Discuss what homicide charges, if any, should be filed against Officer Stryker.

What are the potential defenses? Discuss.

5

l

/.t

QU~?'N3S~~:~JLINE ( Ll J )· . . --') I. Ted's Homicide Culpability for Vicky~oints ( 2 ) ) \__ 1

. , Y {) ..... ,/ "---...--~- ~---~---~~---~----·""''

The facts do not present conspiracy as a reasonable interpretation. There appears to be no agreement

between Ted and Sid to steal beer. Ted and Sid agreed Ted would pay for the beer. When Ted realized

he didn't have enough money, Ted politely asked for a discount. Only when Clerk refused did Ted

become angry and then began leaving the store. Sid then "suddenly decided to take the beer." The

question initially presents whether Ted aided and abetted a robbery by Sid.

/'~A: Felony murder: An accidental killing during the commission of a felony. Robbery is an

V enumerated and inherently dangerous felony.

1) Did Ted himself perpetrate a robbery?

2) Did Sid commit a robbery?

3) Did Ted aid and abet Sid's robbery? If during Sid's commission of the robbery, Ted

aided, facilitated, or encouraged the robbery, Ted is an accomplice. Ted would be an

accomplice if he so acted with the knowledge of the robbery anytime before completion

of the robbery (otherwise Ted would only be an accessory after the fact and not

culpable for the robbery). A robbery is not complete until the perpetrator has reached a

place of temporary safety.

a) Had Sid reached a place of temporary safety?

v·""·"""b) Did Ted demonstrate an accomplice actus reus?- ( (

c) Did Ted have the mens rea for robbery?

4) Felony murder causation (did the death occur during the commission of Ted's robbery

as an accomplice)?

a) Ted had not reached a place of temporary safety as Officer Stryker's

intervention emphatically demonstrated.

b) Was officer Stryker's use of force not foreseeable/an independent

intervening cause that breaks the causal chain between Ted's robbery

and Vicky's death? Under the common law, if Officer Stryker-committed a

crime, it is arguably an independent intervening cause and an example of free,

deliberate, informed human intervention.

5) Did Ted commit a qualifying felony by assaulting Officer Stryker with force likely to

produce GBI or a deadly weapon with a beer bottle?

__./ a) Majority rule: An assault is not a qualifying felony under the common law I/" v because of the merger doctrine.

l)

B. Other Homicide Culpability:

/ V 1) Depraved heart/conscious disregard for human life murder?

2) Voluntary manslaughter: Imperfect self-defense or heat of passion upon adequate

provocation?

A Involuntary manslaughter: Criminal (gross) negligence or during the commission of

V an unlawful act? ,

~t...t) ~tJ VllV''4 II s C,lh,/!ll1 .~17 (,) ("'"') C. Defenses (no justifications or excuses apply to felony murder on these facts):

1) Duress: Under the majority common law rule, duress does not apply to murder. Also

does not apply if Ted was at fault for exposing himself to the threat.

)

I l

2) Necessity: Conventional wisdom is that necessity does not apply to murder, but

perhaps otherwise on these facts. Also, doesn't apply if Ted at fault for "creating

necessity," but did Ted create Officer Stryker's commission of a crime?

3) Self Defense: If Officer Stryker used unlawful force, did Ted act in a reasonable belief

in the need to defend himself, justifying the accidental killing of Vicky under the

doctrine of transferred intent?

D. Extra Credit:

II. Ted's Homicide Culpability f?i" Sid-5 Points EXTRA CREDIT

A. Felony Murder:

Common law majority rule: The felony murder rule only applies to killings by co

felons. Because officer Stryker killed Sid, Ted is not culpable .

.. -:t_ __..C.'~ .. '

/ """"'''2) Common law minority rule: Under a proximate cause analysis, ted is culpable if the

V killing was foreseeable.

B. Aiding and abetting derivative culpability: An accomplice is only guilty of reasonably

rJ C) . foreseeable offenses committed by another accomplice. Because officer Stryker killed Sid, Ted

is not culpable. ;S -;:::::=:~

Ill. Officer Stryker's Homicide Culpability for Sid-~oints (j j) A. Homicide Mens Rea:

\I 1) Intent to kill"~ 1,\.cr·~ ~J· c! li / f ff' I kc'f '' •

v' 2) Depraved heart/conscious disregard for human life?

3) Voluntary manslaughter:

a) Imperfect self-defense: an honest but unreasonable belief in the need to

defend himself? ~~r-r!f'l'

#1'-?'Y"

) ~) Heat of passion caused by adequate provocation that would cause a

V reasonable person to act rashly?

...t"· I N\1 o L-B. Justifications:

!/'1) Self Defense? ~- i!tk~"f"' . .;" 2) Common Law Arrest Defense?

·(~:J?'lft , 4

3) U.S. Constiutional Arrest,_Req~irements? ..

- _ V '-1 ) I /l it11 <- f tt. .. <.. ~ l <Srf_- 4.5 Vf 5'1 /L "1 t. t/\..· vJf'1 s /t· i, 1b .1'1 :s r·i~f'L t f" r·· a:\Ot1'7 IV. Officer Stryker s 'Fiom1cide Culpability for Vicky~ Points

l11'' f ~

A. Homicide Mens Rea: If Officer Stryker's use of force against Ted was not justified, and

assuming causation for Vicky's death, his mens rea toward Ted would determine his culpability

for the killing of Vicky.

B. Causation: If Officer Stryker is culpable for homicide, then was it foreseeable that Stryker's

use of force would cause Ted to f~in-h~icle recklessly and at a high rate of speed resulting

in a fatal collision? ,.,-·//··~ ·.,, · -~

·.··! t)" 3 f o .. , /'( cf(. l 1 .,v c..,~ 1 \ - l

'"'-... , ______ , ____ ,.,_ .................... -·-~··'''''"'' d.--.. · .•'

People v. Ted (T)

Murder

Murder is the unlawful killing of another human being with malice aforethought.

Actus Reus


he had a duty. Here the facts state that T got into his car and hit Vicky (V). The act of getting

into the car and driving satisfies the actus reus.

Mens Rea




Intent to Kill

The facts state that T got into his car and caused a car accident with V which killed her. This

does not show an express intent to kill. The facts state that T was looking back at the police

officer when he hit V and therefore he didn't even know he was about to hit her let alone intend

the killing. It is therefore most likely that T did not have the intent to kill V.


The facts state that T got into his car and caused a car accident with V which killed her. This

does not show an intent to inflict great bodily injury. As stated above the killing was

unintentional and T did not even know he was going to hit V as he wasn't even looking at the

Page 1 of 9


road. Therefore, it is most likely that T did not have an intent to inflict GBI.

Reckless indifference (Depraved Heart) 1/ ... The facts state that when T hit V he was trying to escape from the police. The facts also state

that he had just drank a beer and also he was driving at a high rate of speed while not looking

at the road in front of him. A person who gets into a car while speeding away and not even

looking at the road in front of him is posing a huge risk to other motorists and the general

public. It is most likely that T's acts are done with a reckless indifference and that the risk to

human life was very great. Therefore, it is most likely that Twas acting with a reckless

indifference to an unjustifiably high risk to human life.

Felony Murder Rule (FMR)


enumerated felony will be murder. In this case there are two possible felonies that are being

committed by T, robbery and felony ~sssault. However, under the felony murder rule the

,.,.uAderlying felony must be separate from the killing. In this case the underlying felony of assualt

}/would not be allowed as the underlying felony for FMR because it is not separate from the

killing as it is itself a type of dangerous assault. Therefore, the prosecution will try to charge T

for FMR using the underlying felony of robbery. In order to use the felony of robbery the

9-ft\, prosecution will have to prove that the robbery ~~mp!~.!~.:~!~,tis shown that the robbery was

7.Jf .~· not complete there will be no underlying felony for which to charge Twill felony murder. In this ,;. <[

i\ '·i J 1 case the facts state that a robbery in this jurisdiction is, "the taking of personal property from

, another's possession and immediate presence, and against his will, by means of force or fear . . \ ,..{vf 7{:;:.),,""" _,.A robbery i,~ not complete until the perpetrator has reached a place of temporary safety." lfl \) .'-/tf i\ ~

<:; ;~,/''4, I •''{ '£ f ci '-' I '

;;;.··~~~:;·· ~~·V;~rce or Fear and agaisnt his will

Here the facts state that T and Sid went to the store to buy some beer. T was 50 cents short

and asked the clerk for a 50 cent discount. When the clerk refused T became angry and cursed

at the clerk and threatened to finish it later. The facts also state that the clerk was too afraid to

do anything or stop them. This shows that the element of fear was used because the facts state .,, '.• .... ·- ·-·

that the clerk was in fact in fear.

Page 2 of 9


Taking Element

Twill argue that the element of taking does n()j.J~~is!t..a\he did not take the beer but Sid did.

The prosecution will argue that Sid was a~omplice 9fT. An accomplice is someone who

assists in the commission of a crime intent~·u~rand;lso has the intent that the crime be

committed. Here the act of just being with T wouls not be sufficient to show that Sid was an ~"""'·'ll'.nm>''~"F<"' -'<'lt.:r.••>rJ-'""''7:"~'~,--~'"'"""'·'' •.'''":•• ;·:;~:. · ~' :0:'.r>.>:~.:;;,·;.P.'!·\"<F-t<t!!o;'<J.~-:<.;,~.~il..~~:7'~1"1~.\"\1';:"i'r:f•:J'I'l<t.:"f;.'·"".0:<·•!Ci"•· ~.;:.:,,..~,.;· .,,;,_·,,'\;:J,';(f;JJ;,"i:,",~•"'•{'i"""~'li<:-T>f'$[,:'~~~,.,.,".;o·,;~;·•·• ,,_,,_;,_-;. .• '""'-"•"''

accomplice because mere presence is not sufficient. However, Sid assisted T by taking the • .. . ··.• -·- ~.,_.~··. .., . . • • --~ ·'· ... • ... ' . • ; . '. -, ~-· :.- ':"~·1;;' ... ,._ .... ,, . . :.

beetbottf~soutto _T. T then dran.!<Jhe beer with Sid which shows they were acting together. An f;• ,·,,•, ' • •, •' 'o 'o •'H •,;.•.•'" ','),' ",,,,:_,,,',,• -

>~ ._. ---

accomplice will be liable for all the natural and probabaly crimes committed by other j accori1Pnce~. Therefore, e~~~ !hough T did not actuallytake the beer he will bO liable for the

~a king under accomplice liability) /)/0 . (1\/A L I ~ J ..1 ()f\{ ("1 crvs. rt {~.,~

,•

From possession of another ,z ) ( )-.v~ I l u;) l'lJ''Z_ (' f7i /~: Jl r ~ { .r \ t;" "'·~-· ; t:,~·

( uV~it i'T~ The facts state that Sid took the beer from the presence of the clerk and the beer did not

belong to Sid as he hadn't fully paid for it. This shows it was taken from the possession of

another.

Not complete until perpetrator reaches temporary safety

c.)r~ c c,-->t··rd/,;:::wttr'~ T (.,-J:.c:~"'n···s. 1~.~t ~\."'~'! c J;\((_ ~....0.7~::? ~ C.?L.ri ; } Twill argue that because he had yet to reach temporary safety he will not be guilty of robbery

''-_.................. ... ... .. '··-·'" .. . . . ....... __ ,. ..,_ . ". '· " . . . · ..

and therefore will not be guilty under the FMR. The facts state that the two were on their way to

the car when the officer tri~d to apprehend them. The car may have been the temporary safety

but most likley the temporary safety would be a home where they finished their drive. The

prosecution will argue that the two had reached safety when they exited the store and were ,...------·"·--···-············ ,., ............... , " ' .. ' ,, '. -'

__ walking to their car and thus the robbery was complete. It is most likely that the twohad yet to ··-·-~"". "'·~ ··--.- ..•. ,, ···~'"·'"-"''.

reach ii)i~~e of temporary safety and therefore would not be guilty of robbery. ,(-~1

... ,.'- t-tt" ~~ J f r { f~lV( .. ~~~ ,. ._ { • • .....,~ \,.. ' J

·FMR for death of Sid

\,{(Y"t.} .,!

; (. \ · .

./ ( ( .• // ~ ..• ' ( ,!'

The prosecution may also charge T will the death of Sid under the FMR. However, the majority

.,--'"·

view is that the killing of a co-felon will not be sufficient under the FMR. If this jurisdiction has a L!:"J;·;;( ~ '.' ·. ' \

minority proximate cause view he may be charged as it is foreseeable to encounter police and

Page 3 of 9


for the po'lice to use force against the felons.

Defenses to murder

{

T will raise the defense of voluntary intoxication. Voluntary intoxication is a defense to specific

intent crimes only. However, it is most likely that T acted with the mens rea of reckless

indifference and didn't have the specific intent to do anything. Also the prosecutor will argue

that he only took a few sips of the beer before the police arrived and he was not intoxicated.

Therefore, his defense of intoxication ·will most likely fail.

Voluntary Manslaughter

Voluntary manslaughter is an intentional killing distinguishable from murder by the presence of

~deq,a~J~,.J2LQ,:t£,S~!Lsu:L2L.~D.St~r..L~.~--!!Jli?.~IT~¥J..~~If~,~f~D.~"'~.J:.~!~· In this case it is most likely that

there was not an intentional killing and therefore this mitigated form of homicide will not be

/ d'!T-

.("~_.,/<(- '

available to T. Under California law however, because T's acts would constitue a conscious v (j --··------~~·- -~""·~·-··-·----···-·~-.-~·---~·-""''''· ·······•+' ........... ········--··-·-'"··-··-·····-- • • • ·-" ... ........... ... • \

disregard to an unjustifiably high risk to human life he would receive this mitigated charge. J /

Involuntary Manslaughter ;· .. (

Involuntary manslaughter is found in two ways: by criminal negligence andk.tll"' ,. .... P'\ " ·' "

misdemeanor manslaughter rule. In this case Twill argue that he wa~o>merely negligent'when ·,f

he casued the death to V and therefore should get this charge. As s~qwn abgve he(had the ~ .. ~_, _____ , __

mens rea for murder and therefore will be charged for murder. Under the misdemeanor

manslaughter rule he will also argue that he was engaged in a misdemeanor and the killing

occcurred during its commission. However it is likely that Twas engaged in an attempted

robbery and not a misdemeanor.

Causation

To be liable for the murder of V it must be shown that T's acts were the actual and proximate

cause of the death. Actual cause is found when but for the defendant's act the victim would be

alive. The facts state that but forT driving his car erratically he would have not hit V and she

would not have died. Therefore, Tis the actual cause of the death. Proximate cause is when

Page 4 of 9

) ,··

t ''i '\ . !

(.

I' ('{

1


the death' is a foreseeable result of the act. Here the act of speeding away at a high rate of

speed through a parking lot while looking behind you is a foreseeable way to get into an

accident. T will argue that the police officer shooting at him was the reason he was looking back

and therefore the officer was an independant intervening cause. However, the officer was ~-----...... ·~-+-1'1~~-,.,...,~

shooting because T was fleeing and it was therefore ~l11t.ervening cause and will not

break T's causal chain. T is the proximate cause of the death.

Conclusion for Ted

It is most likely that T acted with the mens rea of reckless indifference and therefore he will be

charged with murder. FMR will not apply because asssault is not separate from the killing and

~ ...... ~~~e will attempt to mitigate this charge but will most likely fail. His --..... _ defense of intoxication will also fail. ~--"-"""'~~"-~ . .,....- .·• . ··.· . '" . · ... · ,

,...,.,_ 1'/f.'"' /'!,,·<; '(· '~ /J ~· '\,.)\ f('); } I . . . I r ~· f' ~- \. .. ~ ,. c. ~;>.· '.1 \/! , c f;, . .,.;.

People v. Officer Stryker (S)

Murder

"~.·~ :.'!' M·~1 --

Murder is the unlawful killing of another human being with malice aforethought. T/·)

Actus Reus

In order to be criminally liable the defendat must have voluntarily acted or failed to act when he

had a duty. HereS shot multiple times at Sid. His act was voluntary and therefore satisfies the

actus reus requirement.

Mens Rea




Intent to Kill

Page 5 of9

I J


Th'e facts ·state that S discharged his pistol in the direction of Sid. Under the common law

deadly weapon rule a person who uses a deadly weapon in a killing has an implied intent to kill.

Because S used a gun, a deadly weapon, his intent to kill was implied.

Intent to inflict GBI

The facts state that S discharged his pistol in the direction of Sid. It is likely that when you shoot

at someone you are attempting to hit them which will cause GBI. Because S intended to shoot

Sid he most likely intended to inflict GBI.

Reckless Indifference to an unjustifiably high risk to human life

Here the facts of S shooting at Sid show a reckless indifference to human life. S shot Sid with

two bullets to the center of his back. This shows that he didn't care if Sid died as he didn't try to

hit him in the legs but was indifferent as to where he hit him.

See supra for rule.

S was not committing a felony and therefore this mens rea doesn't apply.

Defenses to Murder

It is most likely that Swill raise the defenses of self-defense, crime prevention, and arrest.

Self-Defense

A person may use proportional force against someone else in order to prevent an imminent

attack against there body. HereS used deadly force when he shot at Sid. A person may use

deadly force when he is not the agressor (which S wasn't because Sid threw a beer bottle at

him), has a reasonable belief he is in imminent danger of GBI or deadly force (Swill argue the

glass thrown at him could have caused GBI force if it cut him, prosecution will argue Sid only

used moderate force), has a reasonable beleif that deadly force was neccessary (it is most

Page 6 of 9


likely S's beleif was unreasonable as he fired a gun at someone who threw his one and only

~~eapon at him), and the deadly force was necessary to prevent unlawful attack.

(~X'~~( . \ li'"ls'most likely that S will not have the defense of self because even though he was not the

agressor he combated non-deadly force with deadly force and therefore his defense is not valid.

Crime Prevention "' .... ., '} ~"" .I ~ s----~ 0 l ., ,c ... ~ I/ ;'i ~ .!f\rf "'"" ),/'t~ M ~ i .... ...,,. /1 v jc-:>_ 1( ~ r;, [\/~r,

~~~--~· f(,,.· -~ 1 ~1ii ~~ .. ~<!' ~~ "t , {J\_ __ ~U ... ~ ~ (1.----".r

committed. An atrocious felony is one likley to cause GBI force to another person and typically •·

\

A person can use deadly force if he reasonably believes that an atrocious felony is about to be

( I }-

consists of: murder, manslaughter, arson, rape, robbery, and burglary. Here the facts state that ··---~- 1 ,r~

~ the two menwer=e-in"th;-~~~i~sion of th~.f~-~~-ny=orr:~·t;t;~'ry~"8ecauset1hey had not yet (~"(! t..~--c€!

reached a place of temporary safety the crime was not yet completed. Because it was not -fff·· ., 1 --------~.. ~"'

completed S will argue that he had the right to prevent it. However, there was no threat to ~.lr<T·•''"''"~""""'""'''=""""~ ......... ~.,._,..._,-=>'WI~

anyoneaiiCrifCOuld be argued that even though They hadn't reached safety they were no longer

a threat to anyone. It is unlikley that S will prevail using this defense because he wasn't really

preventing anyone from committing an atrocious felony.

A police officer can use deadly force to effectuate an arrest if the officer reasonably believes ---... the_!USJ:~:.!J.~ . .<?.~!!!E!ill!.in!1 .. saJ~lQ!1lH§!IL<ideadly force is necessary to immediatly effectuate the

arrestS will argue that he told the two men that he was an officer and he told them to stop. The

two men then assaulted him and tried to run away. Swill argue that the two were committing a

felony and he had to use deadly force to effectuate an arrest or they would have gotten away.

The prosecution may argue that the officer could have shot the tires of the car instead or even

just chased the two in the car and called for back up. It is most likely that it was unreasonable

for S to use deadly force in this situation but if a jury finds the force reasonable he will prevail

on this defense.

Voluntary Manslaughter

Voluntary manslaughter is an intentional killing distinguishable from murder by the presence of

adeqaute provocation or under the imperfect self defense rule. Swill claim that he was the

Page 7 of9


victim of an attempted battery when the two threw the beer bottles at him. He will argue that this

provoked him to fire his gun. In order to find adequate provocation the defendant must show

that the provocation was of a type that would cause a sudden and intense passion in the mind

of an ordianry man as to cause him to lose his self control, the defendat in fact was provoked,

there was not a reasonable time between the provocation and the killing to cool off, and the

defendant didnt cool off. Here S will argue that a normal person would lose his self control when

someone else threw a bottle at him, he will argue that he was provoked, and he will argue that

he didn't cool off and there wasn't a reasonable time to cool off. Under the common law being

threatend with a battery was adeqaute provocation. It is likely that S may be succcessful in

proving provocation.

He may also claim imperfect self defense by showing that he had an honest but unreasonable

belief in his need to use deadly force.

-~"''-.. , /~nder California law however, !b:caus;l S's acts would constitue a conscious disregard to an

'\unjustifiably high risk to human\fe'''I~;;·would receive thi~ mitigated charge. \. j'l, /i ___ .,\ ... " ;I' -""'1.-~ •.... \. ;? ' F, I '

-' - '- '--·->' ,. Y·'·· i (,_, \: / :' ~ ( /·~-

Involuntary Manslaughter

Involuntary manslaughter is found in two \Nays: by criminal negligence and under the

misdemeanor manslaughter rule. Because this killing was most likely intentional S would not

have this mitigation.

Causation

/::::=~~\ y . .....- \!

To be liable for the murder of V it must be shown·1fiat T's 1cts were the actual and proximate

cause of the death. Actual cause i~A.ound when but'ier-·t11e defendant's act the victim would be

alive. Here but for S shooting Sid (be} would be alive. There are no intervening causes and since ~-

sis the direct cause of the death he is the proximate cause.

S forV

The prosecution may also try to charge S with the death of V. But as discussed above it is likely

that S was a dependant cause ofT's acts and will not be guilty in the killing of V. ,,

• . t

r :~. "~~-* -: :;.,.· Page 8 of 9

:;:.

·.-·-.:


Conclusion for S

It is most likely that S will be guilty of the murder of Sid. His defense of arrest is the strongest

defense and his provocation argument may also mitigate the murder to a manslaughter.

Page 9 of9

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