CRIMINALLAW Santa Barbara & Ventura Final Exam. Spring 2014 Prof. Gregory McMurray and Prof. Kristi Peariso QUESTION #I

Randy and Chip who have been close friends since their college days have had a falling out, primarily because Chip drinks too much.

Two nights ago, while Chip was drunk, he sent a text to Randy telling him that he is a terrible husband and father, Knowing that Chip was probably drunk when he sent the text, Randy did not respond.

However, yesterday, Randy went to Chip's place of business, an auto body shop, to try patching up the hostility between them. When he anived, he found Chip to be intoxicated and irrational. In fact, while Randy was trying to have a friendly conversation with Chip, he walked up to Randy and spit on him.

This enraged Randy who then pulled out a knife and lunged at Chip. Chip was able to dodge the knife and pick up a jack handle. He hit Randy several times in the head with the handle. Randy fell to the ground screaming.

Ed, Chip's co-worker who can't stand Chip, heard the screams for help. He walked rn and saw Chip kneeling over Randy and hitting him. Randy was in the fetal position trying to protect himself from the blows.

Immediately, Ed reacted by pulling out a gun and shot Chip in the head. The shot to the head caused Chip to fall back. Ed called 9l I and both Chip and Randy were transported to the hospital where Randy died from the blows to the head. Chip lived.

This is a retreat jurisdictron.

Using common law and modem law discuss the underlying theories in the following lawsuits, any applicable defenses and lesser included offenses

1) People v. Chip for the murder ofRandy. 2) People v. Ed for the attempted murder of Chip Spring 2014 Final Exam QUESTION #I ISSUE SHEET- Prof. Kristi Pearsio People v. Chip A. First Degree Murder

The unlawful killing of another with malice plus premeditation and deliberation.

There is nothing in this fact pattern to indicate that Chip premeditated or deliberated about killing Randy. In fact, it was just the opposite. Chip acted without reflection and merely on impulse as a reaction to Randy coming at him with a knife.

Second Degree Murder

The unlawful killing of a human being with malice. Malice can be shown by l) intent to kill, 2) intent to cause SBI and 3) Depraved heart.

1) Intent to kill: Chip may very well have had the intent to kill, which would be evidenced by the fact that he took several blows to Randy. However, the better argument is that he at the very least had the intent to cause SBI or was acting with depraved heart. 2) Intent to cause SBI: Chip took the handle of a jack to Randy. He is him several times in the head. Clearly he intended to cause him SBI. 3) Depraved Heart: To act with reckless disregard to human life. Here, the act of hitting someone with a metal baton, in the head, several times, clearly is doing an act that has a very high probability of death. Therefore, at the very least, Chip acted with depraved heart. Conclusion: Unless Chip has a viable defense, he is guilty of second degree murder.

D. Defenses:

1) Intoxication: Although not the best "defense" for Chip, it must be considered. Voluntary intoxication is never a defense, but evidence of intoxication may be relevant to negate malice. If at the time of the killing, Chip was so intoxicated that he could not form Malice, then an element of the crime is missing and he would be not guilty of second degree murder. However, self-defense is a much better "defense" in this case. 2) SelfDefense: a) An actual and reasonable fear ofdeath or injury 1) Actual: Randy came after Chip with a knife. Chip had an actual believe that he was about to be killed bv Randv 2) Reasonable belief: An objective standard. Would a reasonable prudent person in Chips sitr:ation have believed that he was about to be killed or injured? Absolutely! Randy lunged at him with a knife. Anyone would fear for their life under these circumstances. b) Must be imminent: The threat of injury or death must be immediate. Again, Randy had lunged at him with a knife. It was definitely imminent. c) Must be proportional to the perceived threat: The use of a knife is lethal force. The use of the knife by Randy gives Chip the right to use lethal force to protect himself. His force is proportional to that ofRandy's. d) Can't be the initial aggressor: Although Chip essentially started the confrontation by spitting on Randy, he is not the initial aggressor. The initial aggressor is not the person who starts a fight, but rather the person who escalates it to lethal force. Had Randy simply hit Chip to protect himself after Chip spit on him, he could claim self-defense because he did not escalate it to lethal force. In that situation, Chip would be the initial aggressor. However, once Randy escalated it to lethal force, Chip is no longer the initial aggressor and may act to protect himself with lethal force. e) In this case, a duty to retreat: This is a retreat jurisdiction. A person must retreat in lethal cases if it is safe to do so, rather than protecting with lethal force. Chip was able to avoid the knife when Randy lunged toward him. One could argue that he could have ran (retreated) instead of picking up the jack handle. However, this is irrelevant. An exception to the duty to retreat is the Castle Doctrine. Chip does not have a duty to retreat in his home or place ofbusiness. Therefore, he can stand his ground and protect himself. E. Conclusion: Chip is not guilty ofsecond degree murder because he was acting in self-defense.

. People v. Ed A. Attempted Murder 1. Attempt: When one intends to commit a crime, but falls short. An attempt requres: a) A specific intent to commit a crime Although there is no evidence to show an intent to commit first degree murder (please see above for definition) because there is no evidence of premeditation and deliberation, there certainly may be evidence of an intent to kill. We do not discuss depraved heart, because you cannot have an attempted murder based on depraved heart. Ed took a gun and fired it at Chips head. There is a big argument to be made that this shows an intent to kill. Plus we know that Ed didn't like Chip. b) An overt act towards its commission An overt act is an act beyond mere preparation. There are two tests: 1) The substantial step test: What the act a substantial step toward the commission of the crime? 2) The proximity test: An act with a close proximity to the successful completion of the offense.

Here, regardless of which test is applied, actually shooting a gun a person's head is an overt act.

c) A failure to achieve the act. Chip did not die. A murder was not committed. Conclusion: Unless Ed has a defense, he could be found guilty of aftempted second degree murder.

Defenses: 1) Defense of others:

a) Majority approach or Good Samaritan approach: Courts allow the use of reasonable force when a person reasonably believes that such force is necessary to defend a person from unlawful attack. Here, Ed heard yelling from Randy. When he anived he saw Randy laying in the fetal position trying to protect himself from the blows. He saw Chip kneeling over Randy with jack handle hining him in the head. A reasonable person would believe that he needed to use lethal force to protect Randy from death. Since Chip was using lethal force against Randy, it was reasonable for Ed to use lethal force on Chip. Therefore, under the Good Samaritan approach, Ed would have a full defense of others and would not be guilty of attempted second degree murder.

b) Alter Ego approach: Under this approach a person stands in the shoes of the person her is protecting. The person is only authorized to use the same defense and force as the person they are defending. Here, Randy was the one who escalated the fight from non- lethal to lethal. By doing so he became the initial aggressor and therefore, did not have a right to use or claim self-defense. Since Ed was defending Randy, he is not authorized to use any force to protect Ed. Therefore, 'Ed cannot claim defense of others as a defense. In this jurisdiction, he would be guilty of involuntary manslaughter based on a theory of imperfect self-defense. CRIMINAL LAW Santa Barbara & Vennrra Final Exam. Spring 2014 Prof. Gregory McMurray and Prof. Kristi Peariso QUESTION #2

Bobby is employed as the manager at a local, high-end furniture store. This fumihrre store gets lots ofbusiness and makes a large amount ofmoney on the weekends that is stored in a safe located in the back room. Bobby knows the combination to open the safe and is responsible for depositing the money into the bank on Monday momings.

One day, Bobby and his friend Erin decided that they wanted to steal the money from the fumiture store. They determined that the best time to steal the money would be on weekend. They worked on a plan in which they would rent a U-Haul moving truck and remove the whole safe fiom the store using a refrigerator dolly. Additionally, they would bring a crowbar to the store and pry open the lock on the back door to make it look like there was a burglary.

The Saturday night before the planned theft, Bobby went to a local U-Haul location to rent the moving truck but he arrived too late and the store was closed. On his way home, Bobby saw a suitable moving tmck parked on the street. Bobby then drove that truck and parked it rn his garage. Unfomrnately for Bobby, Erin started to have second thoughts about the theft.

On Sunday moming, Erin telephoned Bobby and informed him that she no longer wanted to be involved with the theft. Erin even tried to persuade Bobby that he should not steal the money. Bobby responded that he would take the safe anyway on his own and keep all of the money for himself. Accordingly, late that Sunday night, Bobby drove the moving truck to the location, used his key to get into the store, and removed the safe using the refrigerator dolly. Bobby then pried open the back door using the crowbar and left the scene.

The guilt of knowing who committed the theft started to get to Erin. She called law enforcement and informed them that it was Bobby who committed the theft. Bobby was subsequently arrested.

Bobby and Erin are both charged with the following crimes

1. Conspiracy to embezzle money 2. Theft of the U-Haul 3. Embezzlement of money 4. Burglary of the fumiture store

Discuss the liability of each for the above criminal charges and any applicable defenses they may have at common law and modem law. CRIMINAL LAW FINAL EXAM ISSUE SHEET (Prof. Greg McMurry) QUESTION #2

1. Bobby's criminal liability

Consniracy to Embezzle

Conspiracy is an agreement between two or more people to commit a crime. The elements of embezzlement is that l) two or more people agree to commit a crime and 2) there is an overt act towards its' commission. At common law, an overt act was not required, whereas, modem statutes require an overt act. Embezzlement is a specific intent, inchoate crime and the agreement can be proved by circumstantial evidence. The target offense in this case would be the embezzlement.

Here, Bobby and Erin had an express agreement to commit the crime of embezzlement. The overt act occured when Bobby went to the U-haul and subsequently stole a moving truck. The conspiracy to embezzle crime was completed once Bobby committed the overt act.

Theft of Moving Truck

A larceny is the stealing of personal property of another. The elements of larceny are l) the trespassory taking 2) of personal property of another 3) with intent to deprive. Trespassory taking aspect is the taking of dominion and control adverse to the owner's possessory rights. It also requires a degree of asportation which refers to any movement of the property. With respect to deprivation, at common law there was a requirement that the defendant had intent to permanently deprive where as modem statutes only require temporary deprivation. Larceny is a specific intent crime and the intent must exist at the time ofthe taking.

Here, Bobby took dominion and control of the moving truck against the owner's possessory rights. Therefore, the taking was completed. The truck qualifies as personal property and there is no indication that he ever planned to return the tnrck. Therefore, it is likely that it would be determined that he had the intent to pelmanently deprive the owner of the truck, and thus, a larceny would be found under both common law and modern statutes.

Embezzlement of Monev

Embezzlement is the theft of personal property by someone who is lawfully in possession. The elements of embezzlement are l) a fraudulent conversion 2) of personal property of another 3) by someone who is already in lawful possession of the property. A fraudulent conversion refers to the action of taking into possession another's property and converting or using it fraudulently for one's own use and benefit. There is no trespossory taking requirement because the defendant has permission to possess the property. Here, Bobby is the manager of the fumiture store and was in charge of depositing the money in the bank on Monday momings. Bobby clearly had the right to possess the property. However, when Bobby took the safe from the store and transported it to his garage, he acted outside of the limitation of his lawful oossession of the monev. Hence, the embezzlement occurred.

Burglary of Furniture Store

The elements for a burglary at common law are l) the breaking 2) entering 3) of a residence of another 4) at nighttime 5) with intent to commit a theft or burglary. Modem statutes have eliminated the nighttime requirement and have extended the residential element to include commercial businesses and other struchrres.

Here, the business does not satis$ the residential requirement, therefore, there would be no crime at common law. However, modern statutes have gotten rid of this requirement. Bobby clearly entered the residence with the intent to steal the money in the safe. The only issue is whether Bobby satisfied the element of breaking. This h.rms on whether or not Bobby had permission to be at the store at that time in the evening. There is no evidence that, as manager, he was restricted as to when he could be and not be in the store, therefore it is unlikely that this element was satisfied.

2. Erin's criminal liabilitv

Conspirac), to Embezzle

As discussed above, conspiracy is an agreement by two or more parties to commit a crime. There also needs to be an overt act.

Here, the evidence supports the assumption that Erin was in agreement with the plan to steal money from the furniture store. Also, the overt act was committed by Bobby. There is no requirement that the over act be committed by each member ofthe conspiracy.

Renunciation occurs when one co-conspirator takes action to thwart the target offense. Renunciation is a defense to the conspiracy itself. Here, Erin took action and was responsible for getting Bobby caught for the crime. However, this occurred after the completion of the target offense. Erin did not take action to thwart the tarqet offense, therefore, renunciation does not apply in this case.

Theft of Moving Truck

According to the Rule of Pinkerton, all co-conspirators can be found liable for any reasonably foreseeable crimes committed by a co-conspirator during the conspiracy in furtherance of the conspiracy. This creates vicarious liability to co-conspirators. There is no requirement that the co-conspirators are aware of these other crimes and the conspiracy until the objective has been achieved or all ofthe members abandon the objective.

Here, the original intent was for Bobby to legally rent a U-haul truck that would be used in the crime. However, Bobby chose to steal the truck that was used in the crime. Erin was aware that Bobby did not own a moving truck that would be suitable to commit the offense. She knew that he would need to get a truck from some location, Therefore, it is reasonably forseeable that Bobby could steal a truck so that they would have the means to commit the offense.

Embezzlement of Monev

Withdrawal from the conspiracy can be completed with a co-conspirator notifies all members of the conspiracy that they no long wish to be part of the conspiracy. Once a co- conspirator withdraws from the conspiracy, they are no longer liable for criminal offenses which occur subsequent to their withdrawal. However, withdrawal is not a defense to the initial consplracy.

Here, Erin notified Bobby that she was not going to participate in the theft of the money from the fumiture store. Erin's withdrawal does not abdicate her from liability for the crime of conspiracy to embezzle. Nor does the withdrawal affect her vicarious liability for the larceny of the moving truck because the withdrawal occurred after the completion of the crime. However, the withdrawal does absolve her criminal liability for the target offense of embezzlement because it occurred before that crime was committed.