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California CRIMINAL

Third Edition

Cliff Roberson LL.M. Ph.D. COPPERHOUSE PUBLISHING COMPANY

1590 Lotus Road Placerville, 95667 (916) 626-1260

Your Partner in Education with "QUALITY BOOKS AT FAIR PRICES"

California THIRD EDITION

Copyright © 1993, 1990, 1988 by Copperhouse Publishing Company

Developmental Editor _ Derald Hunt

All rights reserved. No portion of this book may be reprinted or reproduced in any manner without prior written permission of the publisher; except for brief passages which may be quoted in connection with a book review and only when source credit is given.

Library of Congress Catalog Number 88-72096 ISBN 0-942728-56-4 Paper Text Edition

Printed in the of America. TABLE OF CONTENTS

Preface ...... vii 4.6 Liability/ Without Intent ...... 33 Acknowledgments ...... ix 4.7 Capacity to Commit Crime ...... 34 4.8 Mitigating Factors and Defenses ...... 36 1. LAW AND CRIME ...... 1 4.9 ...... 36 1.1 Purpose of Law in Society ...... 1 4.10 Capital ...... 37 1.2 ...... 1 4.11 ...... 38 1.3 and Stare Decisis ...... 3 4.12 Motive ...... 38 1.4 Repeal/Amendment ...... 4 4.13 Intoxication ...... 39 1.5 Nature and Classification of Crimes ...... 4 4.14 Parties to Crime ...... 39 1.6 Crimes Without Victims ...... 5 4.15 ...... 40 1.7 Federal Constitutional Provisions ...... 6 4.16 ...... 41 1.8 Power of the State ...... 7 4.17 ...... 42 1. 9 Doctrine of Preemption ...... 7 4.18 Persons Liable to ...... 42 1.10 Dual Federalism ...... 7 Classroom Discussion Questions ...... 43 1.11 Legals Research ...... 8 Self Study Quiz ...... 43 1.12 Attorney General Opinions ...... 10 Classroom Discussion Questions ...... 10 5. ...... 45 Self Study Quiz ...... 11 5.1 Statutory Theft ...... 45 5.2 Petty Theft ...... 49 2. THE NATURE OF LAW ...... 13 5.3 Grand Theft ...... 49 2.1 Definition of Crime ...... 13 5.4 Theft: Public Funds, ...... 50 2.2 Purpose of Criminal Law ...... 13 5.5 Theft by ...... 50 2.3 Construction of Penal ...... 14 5.6 Theft by False Pretense ...... 50 2.4 Conflicts Between ...... 15 5.7 Theft by Trick or Device ...... 51 2.5 Criminal and Civil Liability ...... 17 5.8 Theft by .. '.' ...... 52 2.6 Doctrine of ...... 17 5.9 Defrauding Hotels ...... 52 2.7 and Venue ...... 18 5.10 Theft of Utility Services ...... 52 Classroom Discussion Questions ...... 20 5.11 Theft by Embezzlement ...... 52 Self Study Quiz ...... 20 5.12 Theft of Lost Property ...... 53 5.13 Vehicle Theft ...... 53 3. CLASSIFICATION OF CRIMES ...... 21 5.14 Diversion of Funds ...... 54 3.1 , , Infractions ...... 21 5.15 Trade Secrets ...... 54 3.2 ...... 22 5.16 Receiving Stolen Property ...... 54 3.3 Prior ...... 24 5.17 Goods Stolen in Another State ...... 55 3.4 Lessor and Included Offenses ...... 24 5.18 Single or Multiple ...... 55 3.5 ...... 24 5.19 Serial Number Alteration ...... 56 3.6 of Limitations ...... 27 Classroom Discussion Questions ...... 56 Classroom Discussion Questions ...... 29 Self Study Quiz ...... 56 Self Study Quiz ...... 29 6. ...... 59 4. CORPUS DELICTI AND CAPACITY ...... 31 6.1 Burglary ...... 59 4.1 Role of Corpus Delicti ...... 31 6.2 Degrees of Burglary ...... 62 4.2 Act and Intent ...... 31 6.3 Punishment ...... 63 4.3 Intent ...... 32 6.4 Burglary by TorchlExplosive ...... 63 4.4 Criminal ...... 33 6.5 Unlawful Entry ...... 64 4.5 ...... 33 6.6 Possession Burglary Tools ...... 64 Tllble of Contents

6.7 Sale Burglary Tools ...... 64 9.13 Non-criminal ...... 90 6.8 Vending Machine Theft ...... 65 9.14 Justifiable ...... 90 6.9 Related Crimes ...... 65 9.15 Home Protection ...... 91 Classroom Discussion Questions ...... 65 9.16 Self ...... 91 Self Study Quiz ...... 65 Classroom Discussion Questions ...... 92 Self Study Quiz ...... 92 7. - - ...... 67 10. AND OTHER SEX CRIMES ...... 93 7.1 Arsoll ...... 67 10.1 Rape ...... 93 7.2 Unlawfully Causing Fire ...... 69 10.2 Sexual Penetration ...... 94 7.3 Possession explosives ...... 69 10.3 ...... 94 7.4 Attempted Arson ...... 70 10.4 Rape by Force or Fear ...... 94 7.5 Psychiatric Examination ...... 70 10.5 Gang Rape ...... , ...... 95 7.6 Notice of Arsonist's Release ...... 70 10.6 Unconscious Victim ...... 95 7.7 Vandalism ...... 70 10.7 Consent Obtained by ...... 95 7.8 Disorderly Conduct ...... 71 10.8 Statutory Rape ...... 95 7.9 Trespassing ...... 71 10.9 Spousal Rape ...... 96 7.10 ...... 71 10.10 ...... 96 7.11 Rout and ...... 71 10.11 Penetration by Foreign Object ...... 97 7.12 Public ...... 72 10.12 Sex by False Representation ...... 97 7.13 Disturbing the Peace ...... 72 10.13 Lewd or Dissolute Conduct ...... 98 Classroom Discussion Questions ...... 72 10.14 ...... 98 Self Study Quiz ...... 72 10.15 Oral Copulation ...... 99 10.16 Sodomy ...... 99 8. - - DEADLY WEAPONS 10 .17 Sexual Battery ...... 100 LAW ...... 75 10.18 Sexually Assaulting Animals ...... 100 8.1 Assault & Battery Defined ...... 75 10.19 Sex Offender Registration ...... 100 8.2 Assault Elements ...... 75 Classroom Discussion Questions ...... 100 8.3 Battery Elements ...... 76 Self Study Quiz ...... 100 8.4 Assault & Battery Discussion ...... 76 8.5 Attempted Assault ...... 77 8.6 Simple & Felonious Assault ...... 77 11. AND ...... 103 8.7 Motor Vehicle ...... 77 11.1 Robbery ...... 103 8.8 Assault With Deadly Weapon ...... 77 11.2 Immediate Presence-Possession ...... 104 8.9 Assault to Rape, Etc ...... 78 11. 3 Force or Fear ...... 104 8.10 ...... 78 11.4 Asportation ...... 105 8.11 Spouse-Cohabitant Battery ...... 79 11.5 Intent to Steal ...... 105 8.12 Child-Spouse-Parent Abuse ...... , ...... 79 11.6 Completed Robbery ...... 106 8.13 Dangerous Weapons Control Law ...... 80 11.7 Extortion ...... 106 Classroom Discussion Questions ...... 82 11.8 Simulating Process ...... 108 Self Study Quiz ...... 82 Classroom Discussion Questions ...... 108 Self Study Quiz ...... 108 9. HOMICIDE ...... 85 9.1 Homicide Defined ...... 85 12. - - 9.2 Criminal Homicides ...... 85 LAWS ...... 109 9.3 ...... 86 12.1 Kidnapping ...... 109 9.4 -Murder Rule ...... 87 12.2 False Imprisonment ...... 111 9.5 Multiplicity ...... 88 12.3 Posing as Kidnapper ...... , ...... 111 9.6 Punishment for Murder ...... 88 12.4 Kidnapping For Sex Offense ...... III 9.7 Voluntary ...... 89 12.5 Kidnapping Child Under 14 ...... 111 9.8 Involuntary Manslaughter ...... 89 12.6 Kidnapping For Ransom ...... •..... 111 9.9 Vehicular Manslaughter ...... 89 12.7 ...... 111 9.10 ...... 89 12.8 Laws of Arrest ...... , ...... 113 9.11 Punishment for Manslaughter ...... 89 Classroom Discussion Questions ...... 115 9.12 Suicide ...... 90 Self Study Quiz ...... 115 Table of Contents

13. CRIMES AGAINST PUBLIC DECENCY - Classroom Discussion Questions ...... 131 MORALITY AND PUBLIC PEACE ...... 117 Self Study Quiz ...... 131 13.1 Historical-Constitutional Aspects ...... 117 13.2 Community Standards ...... 118 15. CONTROLLED SUBSTANCES AND ALCOHOL 13.3 DNs Charging Considerations ...... 118 RELATED CRIMES ...... 133 13.4 ...... 118 15.1 Uniform Controlled Substances Act ...... 133 13.5 Sale of Obscene Matter ...... 119 15.2 Schedules ...... 134 13.6 Child Sex Films ...... 120 15.3 Reporting Requirements ...... 135 13.7 Minors-Distributing Obscene Matter ...... 121 15.4 Felony Offense ...... 1:;5 13.8 Obscene Matter ...... 121 15.5 Permits for SalelTransfers ...... 135 13.9 Obscene Live Conduct ...... 121 15.6 Prescriptions ...... 135 13.10 Receiving Obscene Matter ...... 121 15.7 Unlawful Possession ...... 136 13.11 Obscenity Charge Defenses ...... 122 15.8 Unlawful Manufacture-Sale-Import ...... 136 13.12 Sending Harmful Matter to Minor ...... 122 15.9 Marijuana...... 136 13.13 Pimping and Pandering ...... 122 15.10 Peyote ...... 137 13.14 Abduction for ...... 123 15.11 Paraphernalia Possession ...... 137 13.15 Keeping House ofIll-fame ...... 123 15.12 Presence During Unlawful Use ...... 137 13.16 Local Ordinances ...... 123 15.13 Driving Under Influence ...... 137 13.17 ...... 123 15.14 Felony Drunk Driving ...... 138 13.18 Abortion ...... 123 15.15 DUI-Boat or Aircraft ...... 138 13 .19 ...... 124 15.16 DUI-Juveniles ...... " ...... 139 13.20 ...... 124 15.17 Chemical Test Advisement ...... 139 Classroom Discussion Questions ...... 124 Classroom Discussion Questions ...... 139 Self Study Quiz ...... 124 Self Study Quiz ...... 139

16. MODIFICATION OF THE LAW ...... 141 14. - COUNTERFEITING - 16.1 Appellate Court Decisions ...... 141 CHECK OFFENSES ...... 125 16.2 U.S. Supreme Court Decisions ...... 141 14.1 Forgery ...... 125 16.3 California Supreme Court Decisions ...... 141 14.2 False Entries in Records ...... 127 16.4 Development of ...... 141 14.3 Forgery of Seals ...... 128 16.5 City & County Ordinances ...... 142 14.4 Sending False Messages ...... 128 16.6 ..... " ...... 142 14.5 False Signatures-Newspapers ...... 128 16.7 Victims Bill of Rights ...... 143 14.6 Filing Forged Instruments ...... 128 Classroom Discussion Questions ...... 146 14.7 Altering Certified Copies ...... 128 Self Study Quiz ...... 146 14.8 Possession Forged Bills ...... 129 14.9 Check Offenses ...... 129 INDEX ...... 147 14.10 Counterfeiting ...... 130 14.11 Ticket Scalping ...... 131 TABLE OF CASES ...... 151 Preface Whatever views one holds about the penal law, no one will question its importance in society. This is the law on which men place their ultimate reliancejor protection against all the deepest injuries that human conduct can inflict on individuals and institutions. (Wechsler, "The Challenge oj a Model ." 65 Harvard Law Review 1097)

The study of criminal law should not be considered as the memorization of a set ofruIes, but as an t..xamination of a cluster of ideas, principles, concepts and questions about human conduct and the control of human behavior. Criminal law should be viewed as a flexible system of values and principles about which reasonable people can and do disagree (Katkin, The Nature oj Criminal Law). This text has several goals: (1) to provide a comprehensive review of , (2) to aid students in understanding what conduct constitutes criminal behavior, and (3) to provide a reference for the administration of justice professional. This text is written for criminal justice students and as a reference source for the non­ criminal justice professional. An objective of the text is to present the complicated and technical subject of criminal law in an easy to understand language and fOlmat. All books are biased to some degree. In many cases, the biases are unintentional and are caused by the author's background and frame of reference. This text may have a "" bias, in that it is written from a viewpoint based on the author's background. Despite this bias, there is still included a deep respect for the individual rights of all persons. To aid in understanding and as reference points, selected penal code provisions are included in the text. Code sections are presented as enacted by the . At certain places, however, portions of the statutes are deleted. The omitted portions are indicated by ellipsis points ( ... ). In other places, to assist the reader in understanding the statutes, editorial comments are added by the author. The editorial comments are enclosed in brackets [ ] and are not a part of the code. Case citations are also included to assist those readers who may need a more in-depth treatment of a particular point. The abbreviations used in the citations are explained in Chapter 1. A decimal system is used within the text to allow easy reference to individual paragraphs. The first number of a paragraph will indicate the chapter in which the paragraph is located. At the end of each chapter, class discussion questions and self-study quizzes are included. After studying the chapter, readers should test their understanding of the material by answering the self-study quizzes and consider the possible issues and answers presented in the discussion questions. ------

DEDICATION

I dedicate this book to a very special woman Diane Marie Kowaleski Roberson.

ACKNOWLEDGMENTS

The author wishes to acknowledge his debt to the following individuals: For reading and commenting on the original manuscript; Professors Dean Ray, Max Futrell, Otto Tocchio, John Burge, and Raymond Hill. For assistance in updating and revising the second and third edition, I thank Professors Robert Perez, Harvey Wallace, and Lance Parr. Cliff Roberson Chapter 1

Law and Crime Human control of contingent human behavior is the purpose of criminal law. (Clark and Marshall, On Crime)

1.1 Purpose of Law in Society Statutes contain the substantive acts and pro­ cedural requirements for prosecution. What is a crime? contains interpretations of constitutional and stat­ Why do we need criminal laws? utory provisions. What purposes do they serve in our society? Laws are principles which are created by our government for the' orderly functioning of our Both the U.S. and the Constitu­ society. Criminal law is an by society to tion of the State of California are sources of eliminate or control harmful human behavior. It criminal law for the in California. Consti­ establishes standards of conduct and provides for tutions provide the framework for criminal law by: punishment for those who are convicted of violat­ 1. Limiting the power of the government. ing those standards. The greatest freedom for all is 2. Establishing individual rights. only possible through an organized society with a 3. Providing for the establishment of a judi­ system of criminal law which protects our basic cial system. rights. A crime is an act committed or omitted in violation of a law forbidding or commanding it, As noted earlier, generally leave and to which is annexed, upon conviction, a the creation and defmition of crimes to statutory criminal punishment. Note: for the criminal law to enactments. The U.S. Constitution, for example, work, the great majority of people must have defines criminal acts in only two sections, Article confidence that it is fair and just. Does our system III, Section 3 on and Amendment 13 have that confidence? which forbids involuntary servitude except as punishment for crime. The state constitution 1.2 General and Specific Sources of'Law defines criminal acts in a few more areas, but for the moSt part, the state constitution, like the The criminal law in California comes from federal, focuses on individual rights and limita­ three primary sources; tions of governmental power. 1. Federal and state constitutions 2. Statutory law Statutory Law 3. Case law In California, there are two types of statutory Generally, constitutions provide rights and law, (1) statutes which are passed by the legislators protection for individuals and restrictions of the and (2) initiatives which are passed by the voters. power of the government to prosecute or punish. Under most circumstances, the power to designate

1 2 Chapter 1 state criminal offenses and provide for the punish­ Substantive and Procedural Laws ment of prohibited acts is reserved to the state Laws relating to criminal conduct may be legislature and cannot be delegated (People v. divided into two general areas, substantive and 35 C 2d 175). In establishing the ele­ Knowles procedural. Substantive law defines crimes and ments of a Clime, the legislature may depart from establishes punishments. Procedurallaw sets forth the norm or common law concepts as long as the the rules and requirements that must be followed elements do not conflict with federal or state during the investigation, apprehension and of constitutions or federal law (People v. Perini 94 C individual . That portion of the penal 573). code that prohibits theft of another's property Many of the state crimes are set forth in the (larceny) is substantive in nature, whereas, the Penal, Health and Safety and Vehicle Codes. Code is a procedural code. Other state codes that contain numerous crimes Case Law are the Welfare and Institutions Code, Business and Professions Code, Fish and Grone Code, and "Case law" is the phrase used to indicate Government Code. appellate comt interpretations of the law. A sub­ stantial majority of "law" is case law, i.e. court In California, the voters have the power via opinions which interpret the meaning of constitu­ the initiative process to propose and tions and statutes. Case law, also, helps clarify and approve statutes and amendments to the state narrow statutory law. For example, the U.S. Con­ constitution. An initiative measure is started by stitution (Amendment XIV) provides that no state presenting a petition to the Secretary of State that shall deprive any person of life, liberty, or prop­ has been signed by the number of voters that is erty, without due process oflaw. What constitutes equal to at least 5 percent of the number that voted "due process of law" is decided almost daily in in the last gubernatorial election for all the candi­ the courts. There are hundreds of published opin­ dates for governor. The Secretary of State is then ions issued by federal and state appellate and required to submit the measure at the next general supreme courts each year. election held at least 31 days after the petition is certified or a special election may be called (Cal. Court decisions interpret the relationship of Const. II, sec. 8). A simple majority of votes one code provision to another, the meaning of is sufficient to pass the measure and it takes effect words used in the code provision, the legislative the day after the election unless the measure intent in enacting the code provision, the scope provides oth '!rwise. Initiative measures should be and effect of the code provision and whether or not interpreted liberally to give full effect to its objec­ the provision violates any constitutional tive and the needs of the people (Mills v. Trinity restrictions. County 108 CA 3d 656). is used when a legal principle has All laws of a general nature have uniform been decided by a court. The court decision is operation within the state. A local or special then precedent (guide) for similar situations. statute is invalid in any case if a general statute can There are two basic types of precedent, manda­ be made applicable (Cal. Const. Art. IV sec. 16). tory and persuasive. Under mandatory precedent, A statute or initiative must embrace only one when a higher appellate court renders a decision subject, which shall be expressed in its title. If a on an issue, the lower courts under the supervision statute or initiative embraces more than one sub­ of that court must follow the ruling or face reversal ject or the subject is not embraced in its title, the on appeal. For example, if the California Supreme provision is void (Cal. Const. Art. N, sec. 9). The Court decides an issue, then state appellate courts one subject limitation must, however, be inter­ in California must follow that precedent. Persua­ preted liberally to uphold whose sive precedent indicates a court decision that is not various parts are reasonably germane to the sub­ binding on a second court but is persuasive to the ject contained in its title (Fair Political Practices second court. For example, a court in California is Com. v. Superior Court 25 C 3d 33). faced with an issue that has never been decided by Law and Crime 3 a California court. There is however a court in prosecuted in the name of the People of the State that has considered the same issue. The of California.) Nevada court decision is not binding on the Cal­ At that time in England, very few people ifornia court, but is of some persuasive authority. could read or write. The king, the and the Precedent is based on the principle of "stare church authorities determined the elements and decisis" which is discussed below. the scope of criminal offenses. In some cases, they Common Law even created new crimes. As William unified England as a nation, rather than isolated villages, Common law is that body of law and the judges developed familiarity with the general juristic which was originated, customs, usages and moral concepts of the people. developed and formulated and is Judicial decisions began to be based on these administered in England .... common general customs, usages and moral concepts. law comprises the body of principles and rules of action ... which are By the l600s, the primary criminal law of derived from usages and customs of England was based on the mandatory rules of immemorial antiquity. (Black's Law conduct laid down by the judges. These rules Dictionary) became the common law of England. Prior deci­ sions were accepted as authoritative precepts and Most of the California criminal law principles were applied to future cases. When the English are traceable to the common law of England. This settlers came to America in the 1600s, they is especially true of the underlying philosophy of brought with them tlJe English common law. criminal law. There are, however, no "common Except for few modifications, English common law crimes" in the state. Accordingly, to be a law became the common law of the colonies. , there must be in existence During the American Revolution, there was a some statute, ordinance or prohibiting great deal of hostility toward the English in Amer­ the conduct in question prior to the commission of ica. This hostility extended to the common law the act (People v. Whipple 100 CA 261). The system. Accordingly, most of the new states common law principles regarding the interpreta­ enacted new statutes d~fining criminal acts and tion of criminal statutes are still used (17 Cal Jur establishing criminal procedures. The statutes, 3d (Rev.), Part 1, Sec. 15). For example, in however, basically enacted into statutory law what defining a crime, the legislature may use words was formerly English common law. that are well known and defmed by criminal law As noted earlier, many aspects of California's (Re Application oj Lockett 179 C 581). present day criminal law system is based on English common law. All states except Louisiana 1.3 Development of common law and stare can trace their legal systems to the English com­ decisis mon law system. Louisiana, whose system was Development of Common Law originally based on the French and Spanish codal law concept, officially adopted the common law Common law was the earliest source of crimi­ of England as th~ basis for their system in 1805. nallaws. It originated during the period of time that William the Conqueror was the King of Stare Decisis England. At the time of the conquest (1066), there "Stare Decisis" is a Latin word meaning "to was no uniform criminal law in England. Individ­ abide by, or adhere to, decided cases." The doc­ ual courts were dominated by sheriffs who trine provides that when a court has once laid enforced the village rules as they saw fit. In ord.er down a principle of law as applicable to a certain to reduce the arbitrary aspects of the law, William state of facts, it will adhere to that principle, and decreed that all prosecutions would be conducted apply it to all future cases, whf)re the facts are in the name ofthe King. (Note: a similar practice substantially the same (Moore v. City ('j Albany 98 exists in California today where all cases are N.Y. 396). Stare decisis is a policy founded on the 4 Chapter 1

theory that security and certainty require that Effect of Repeal accepted and established legal principles, under The repeal of a statute under which a person which rights may accrue, be recognized and has been convicted does not affect the conviction followed (Otter Tail Power Co. v. Von Bank 72 if the conviction is final. Government Code 9608 N.D. 497). (quoted above) is the "general saving clause" for repealed criminal statutes. It modifies common 1.4 Repeal/ Amendment law by allowing for the prosecution of acts which R",peal of Statute Government Code 9606 were criminal at the time of commission even Any statute may be repealed at any time, though the statute which made them criminal has except when vested rights would be impaired. since been repealed. Its purpose is to authorize Persons acting under any statute act in contempla­ prosecution under a fonner statute in order to tion of this power. avoid a situation where the could not be prosecuted under any law, simply because the Termination or Suspension of Law Creating legislature has modified the statute in question Criminal Offense Government Code 9608 between the time that the act was committed and The termination or suspension (by whatsoever the time of trial (Re Estrada 63 CA 2d 740). The means effected) of any law creating a criminal California Supreme Court decided in 1893, that a offense does not constitute a to the person should be punished under the state law a') it or information and punishment of an act already existed at the time of the commission of the committed in violation of the law so terminated or offense rather than subsequent amendment to such suspended, unless the to bar such indict­ law. This principle has since been upheld by the U. ment or information and punishment is expressly S. Supreme Court (McNulty v. California 149 US declared by an applicable provision of law. 645). Discussion The above rules apply even where the act is no longer a criminal offense. For ex.ample, if Califor­ Criminal statutes are repealed or amerded by nia were to repeal its laws as of January 1, other legislation either directly or by implication 19XX; an accused could be convicted and (People v. Dobbins 73 C. 257). A statute is punished on January 3, 19XX on a traffic violation repealed directly by legislation expressly repeal­ that occurred prior January 1. ing the statute in question. 1.5 The Nature and Classifications of Crimes Repeal by Implication Crimes are classified as "mala in se" or "mala Repeal by implication is not favored by the prohibita" crimes. Other classifications include courts (People v. Armstrong 100 CA 2d Supp 821). "crimes involving ," "infamous A statute is repealed or amended by implication crimes" and "high crimes." when a later statute is enacted that is inconsistent Mala in Se and Mala Prohibita Crimes with it. Normally a general statute will not be considered as repealed by a special or statute of An act is said to be malum in se when it limited applicability unless the intent of the legis­ is inherently and essentially evil, that lature is clear (People v. Deibert 117 CA 2d 410). is, immoral in its nature and injurious It is assumed that the legislature did not intend in its consequences, without regard to to repeal a former statute by a later statute if, by a the fact that it is a violation of the law. fair and reasonable construction, effect can be (State v. Shedoudy 45 N.M. 516) given to both statutes (People v. Armstrong 100 CA . Mala Prohibitum: A wrong pro­ 2d Supp 852). Note: if two general statutes are hibited; a thing which is wrong clearly in conflict with each other, the presump­ because prohibited; an act which is tion is that the latest enacted statute prevails (Gov. not inherently immoral, but becomes Code 9605). so because its commission is expressly Law and Crime 5

forbidden by positive law. (Black's conviction of which, the person became incompe­ Law Dictionary) tent to testify as a witness on the theory that they were so depraved as to be unworthy of credit At common law, crimes were classified as (Black's Law Dictionary). It was not the character either "mala in se" or "mala prohibita". Mala in se of the crime that determined whether or not it was crimes involve conduct that is inherently and an infamous crime, but the punishment that may essentially wrong and injurious. Crimes such as be imposed for conviction of it (Brede v. Powers murder, rape, incest, arson, etc. are considered as 263 U.S. 4). mala in se crimes. Mala prohibita crimes are wrong only because they violate legislative acts Crimen Falsi and not because they are inherently and essentially "Crimen falsi" is a phrase used to describe wrong in themselves. Most mala prohibita crimes those crimes that involve the offalsehood involve traffic, social and economic behavior. and includes everything which has a tendency to Criminal violation of a rent control statute is an injuriously affect the administration of justice by example of a mala prohibitum crime. the introduction of falsehood and fraud (Black's Moral Turpitude Law Dictionary). The phrase is, also, used as a general designation of a class of offenses involv­ Moral turpitude is a classification used to ing fraud and deceit. Crimen falsi crimes include describe acts that are contrary to justice, honesty, forgery, , using false weights or measure­ modesty, or good morals (Marsh v. State Bar of ments and counterfeiting. California 210 C 303). It has also been defmed as an act of baseless, vileness, or depravity in the High Crimes private and social duties which one person owes to High crimes is a phrase used to describe those others, or to society in general (Traders & General crimes that if convicted of, will disqualify the Ins. Co. v. Russell S.W. 2d 1079). Crimes that offender from holding public office or making the suggest a lack of honesty, or that imply immoral person incompetent to act as ajuror (Cal. Code of conduct are considered as crimes involving moral Civ. Pro. 199 (b)). High crimes include , turpitude. For example, perjury, theft, and rape perjury, forgery, and by a are considered as crimes involving moral turpi­ public official. tude. Note that crimes involving moral turpitude may also be considered as mala in se crimes. 1.6 Crimes Without Victims Conviction of a crime involving moral turpi­ Crimes without victims or "victimless tude may disqualify a person from holding a crimes" are those crimes that have no adverse professional qualification such as an "attorney at impact on persons other than the actor. They can law" (Re Application of Westenherg 167 C 309). also be considered as "consensual crimes". Gam­ The conviction of an attempt to commit a crime bling, prostitution and drug abuse have tradi­ involving moral turpitude has the same dis­ tionally been considered by some as victimless aualifications attached as a conviction of the crimes. One problem with the enforcement of ~ctual offense (Re O'Connell 184 C 584). victimless crimes is that the police will often not Infamous Crimes have an aggrieved victim to testify against the offender. Criminologists have traditionally While various crimes are referred to as debated as to whether or not acts between consen­ infamous crimes in the California Constitution sual adults should be considered as criminal. The and statutes, there is no statutory definition of it. justification for imposing criminal sanctions for An infamous crime is one that entails infamy upon the violation of those statutes on victimless crimes the one who committed the crime (Butler v. Went­ are that there are at least "moral victims" to those worth 24 A. 456). At common law, the term crimes and that society in general is a victim in infamous was applied to those crimes upon the those situations.

------6 Chapter 1

1.7 Federal Constitutional Provisions is subject only to the punishment that was in effect in 1985, the time the offense was committed. U.S. Constitution, Amendment 14, Section 1 . " No State shall make, or enforce any law Bill of Attainder which shall abridge the privileges or immunities of citizens of the United States; nor shall any State Neither the U.S. Constitution nor the state deprive any person of the life, liberty, or property, constitution defmes the phrase' 'bill of attainder" without due process of law .... even though both prohibit it. The judicial inter­ pretation of "bill of attainder" includes those Discussion cases where the punishment is legislatively The U. S. Constitution provides certain rights inflicted on a particular person or class. For exam­ and protection for individuals and restricts the ple, passing a law punishing a certain person by power of the states to criminally punish individ­ name would be a bill of attainder. Note: different uals, The "due process" clause of the 14th punishments can be inflicted on a class of persons Amendment has been interpreted by the U.S. if there is a legitimate reason for doing so. For Supreme Court to place certain limitations on the example, persons who have prior convictions can power of states to prosecute individuals. Since the by legislative mandate be punished more severely limitations are placed on the states by the U. S. than those who have not been convicted of any Constitution, the U.S. Supreme Court makes the prior offenses. final decision on whether or not state actions Certainty violate those limitations. There are similar protec­ tions contained in the Califomia State Constitu­ Criminal statutes must be certain and definite tion. The general limitations on state action in order that a person will know what conduct is imposed by the federal constitution are included prohibited and what is not. The certainty must be below. such that a person of ordinary intelligence would Ex Post Facto Laws recognize what conduct is prohibited by reading the statute (People v. Pace 73 CA 548). The An "" is one that: purpose of this requirement is to prevent the 1. makes an act occurring before the enact­ accidental commission of prohibited conduct. A ment of the law a crime, criminal statute which prohibited' 'picketing" was 2. aggravates a crime or makes it greater than too vague and therefore unconstitutional (Re it was when committed, Application of Harder 9 CA 2d 153). 3. increases the punishment after the offense was committed, or Equal Protection 4. changes the rules of evidence or procedure The U.S. Constitution prohibits any state from to require less or different evidence than denying to any person within its jurisdiction the was required at the time the offense was equal protection of the laws (U.S. Const. Amend. committed. 14). In addition, the state constitution prohibits the Ex post facto laws are prohibited by both the legislature from enacting any special statute if a U.s. and the state constitution. An example of an general statute can be made applicable (Cal. ex post facto law would be the enactment of a Const. Art. IV, sec. 16). In addition, the state statute on January 1, making an act committed constitution requires that all laws of a general three weeks earlier a crime. A more likely case is nature must have a uniform operation. The equal where the punishment for the crime is increased protection clauses, however. do not prohibit the after the commission of the offense. For example, legislature from fixing different penalties for dif­ an individual is arrested in 1985 for driving under ferent offenses or from permitting courts to the influence. He is prosecuted in 1986. On Janu­ impose variations in punishment for the convic­ ary 1, 1986 the punishment for driving under the tion of the same offense by different individuals influence was increased. The accused in this case (People v. Dawson 210 C 366). Law and Crime 7

1.8 Police Power of the State not be injured. See State v. Betts 252 N.E. 2d 866.) Police power is the power and responsibility 2. Gun control legislation. of a political unit, such as a county or city, to 3. Requiring the use of seat belts in promote and provide for public health, safety and automobiles. morals within its jurisdictional limits. The U.S. Supreme Court noted that police power compre·· 1.9 Doctrine of Preemption hends the duty, within constitutional limitations, to protect the well-being and tranquility of a As noted above, a local ordinance will be community (Kovacs v. Cooper 336 U.S. 77). invalidated ifit directly conflicts with state law. In some cases, however, even where there are no The California constitution provides that conflicts between state law and local ordinances, counties and cities may establish ordinances that the local ordinance will be void if it appears that regulate local, police, and sanitary procedures and the legislative purposes of the state law was to conduct within their respective geographic limits. fully regulate the field (50 Cal. L. Rev. 740). This The ordinances may not conflict with general laws is based on the "doctrine of preemption". Accord­ (Cal. Const. Art. XI, Sec. 7). Any ordinance ingly, the doctrine provides that in those areas which penalizes conduct already covered by a where the state sees fit to adopt a general scheme general law is void (Aifsten v. Superior Court 20 of laws for the regulation of a particular area, CA 269). The police power, also, may not be used whatever aspects covered by state law ceases to be by municipalities to legislate subject matter that is subjects that may be controlled by local legislation of such statewide concern that it can no longer be (In re Lane 58 C 2d 99). considered as only a local concern. The factors used to determine if state law A state or political subdivision of a state preempts the local are: cannot act arbitrarily in the use of the police 1. Has the subject matter been fully covered power. In addition, the state or municipality must by state law so as to indicate that it has be able to show that there is a compelling public become exclusively a matter of state need to regulate the conduct in question. The concern? statute must also not infringe on any individual 2. Are the state statutes couched in terms to right secured by the constitution. Cases where the indicate that clearly a paramount state courts have struck down statutes based on police concern will not tolerate further or addi­ power include: tionallocal control? 1. A statute that required all persons to attend 3. Is the subject matter such that the adverse the church of their choice every Sunday. effects of a local ordinance on transient (This statute violates the First Amendment citizens of the state outweighs any benefits and is not within the police power of a of local control? (53 Cal. L. Rev. 902) state.) 2. A statute forbidding unmarried persons of 1.10 Dual Federalism the opposite sex from living together in Dual federalism refers to the fact that in the same house or apartment. (No legiti­ California, there are two separate criminal law mate state concern.) systems (state and federal) operating together and Cases where the use of the police power has in many situations overlapping each other. The been upheld include: federal government is restricted by the U.S. Con­ 1. Requiring motorcycle riders to wear pro­ stitution to only those powers set forth or implied tective headgear. (Note: several state by the constitution. It is, therefore, a limited supreme courts have struck down similar criminal law system. The majority of criminal statutes. For example, the Ohio Supreme cases involve the violation of state penal codes and Court stated that "liberty" included the are tried in state criminal cases. For example, Los right to be foolish as long as others would Angeles County courts, alone, try more criminal 8 Chapter 1 cases each year than are tried in the entire federal legal issues, case law and statutes can be located system. (Despite this fact, there are presently over quickly and efficiently. 2800 federal crimes.) In conducting legal research, the researcher Federal crimes fall within three broad should: classifications: 1. Research the subject systematkally going 1. Crimes affecting interstate commerce. sequentially from one source (e.g. stat­ The constitution gives Congress the exclu­ utes, court decisions, or law reviews) to sive power to regulate interstate com­ the next. merce. Such crimes include the Mann Act 2. Check to insure tllat the latest available (taking a female across state lines for information has been consulted. For immoral purposes), Dyer Act (transport­ example, use only the latest copy of the ing stolen automobiles across state lines), penal code. Using only the latest refer­ Lindberg Act (kidnaping where the victim ences is essential because legal informa­ is taken across state lines or the presump­ tion and points of authority change tion that the victim has been taken across frequently as the results of statutory modi­ state lines) and the Fugitive Felon Act. fications and new court decisions. 2. Crimes committed beyopd the jurisdiction 3. In researching legal questions, be patient of any state. This includes crimes com­ and thorough. To many questions, the law mitted on American ships on the high seas frequently does not yield easy "yes or no" or at overseas bases. answers. At times, the answers will be 3. Crimes which interfere with the activities considered as ambiguous and conflicting. of the federal government. This broad category includes the robbery of a Legal Citations federally insured bank, federal income tax fraud, attempts to overthrow the U.S. Gov­ Legal citations are a form of shorthand to ernment or robbery of a post office. assist in locating the legal sources. Appellate court decisions are published in case law books, As noted in Chapter 3, the conduct of a person more popularly known as "reporters". The basic may result in the violations of both a federal and a rules of legal citation are as follows: state law, and thus be convicted in both federal and 1. In most citation formats, the volume or state courts. title number is presented first. 2. Next is the standardized abbreviation for For a federal court to become involved in the the legal reference source. trial of a state court, there must be a. "federal 3. Next, in the case of court cases, is the page issue". Accordingly, if a person commits murder number of the first page of the decision. In under a state penal code, the case will be decided the case of statutory references, it is the by state courts unless a federal issue is involved. section number of the statute. In this situation, however, the accused by claim­ ing that his/her conviction violates one of the For example, the citation, 107 C. 468, refers rights protected by the U.s. Constitution induces to the case starting on page 468 of volume 107 of a federal issue (violation of federal constitution). California Reports. If this occurs, then a federal court would have jurisdiction to decide the federal issues involved. The standard abbreviations used in citing federal and state authorities include: 111 Legal Research and Methodology 1. Court decisions: U S (United States Reports) [Contains Researching legal issues and cases is different U.S. Supreme Court decisions.] from standard literature research. Once the stu­ C or Cal. (California Reports) [Contains dent has mastered the concepts and methodology, California Supreme Court decisions.] Law and Crime 9

C 2d or C 3d (California Reports second or number for the legal issue of "exclusion from third series) [A continuation of California criminal trial". Supreme Court decisions.] The key number is the same for each digest CA or Cal. App. (California Appellate published. Legal points from court decisions are Reports) [Contains California Courts of published with a brief statement of the legal point Appeal decisions.] involved and the case citation for the court deci­ CA 2d or CA 3d (California Appellate sion being digested. If, for example, a point being Reports, second or third series) [A con­ researched is located in a digest under Crim Law tinuation of California Courts of Appeal 625, then reference to other digests using the decisions.] same key number (Crim Law 625) will help locate CA 3d Supp. (California Appellate other court decisions on the same or similar Reports, third series, supplement edition) issues. [A continuation of California Courts of Appeal decisions.] Shepard's Citations P (pacific Reporter) Shepard's Citations, started in 1873 by Frank P 2d (pacific Reporter, second series) Shepard, are widely used to ascertain the current Cal. Rptr. (West's California Reporter) status of a statute or court decision. Shepard's 2. Statutes Citations, more popularly known as citators, ana­ U. S. C. (United States Code) lyze each appellate court decision as to; the his­ Ev C () tory of the case, other decisions where that PC () decision has been cited and whether ornot the rule Veh C () of the case has been modified, overruled or H & S C (California Health and Safety approved by other cases. A similar analization is Code) used for statutes. For a detailed explanation of how B & P C (California Business and Profes­ to use Shepard's Citations, read the first pages of sions Code) any citator volume. W & I C (California Welfare and Institu­ Legal Dictionaries and Encyclopedias tions Code) Like Shepard's Citations and legal digests, Note: United States Reports (U S), reports legal dictionaries and encyclopedias are not legal only decisions of the U.S. Supreme Court and authorities, but research tools. The most popular California Reports (C, C 2d or C 3d), reports only legal dictionary is Black's Law Dictionary. decisions of the California Supreme Court. Cal­ Legal encyclopedias provide discussions on ifornia Courts of Appeal decisions are reported in various legal points in encyclopedic form based California Appellate Reports (CA, CA 2d, or CA on court decisions and statutes. They are arranged 3d). by broad legal topics and subdivided by individual Legal Digests areas. The most popular encyclopedia used in California is California . Third Edi­ Legal digests are not legal authorities. They don (Revised). It provides a detailed discussion on are used as research tools. Legal digests identify state legal issues. It is cited as Cal Jur 3d (Rev). and consolidate similar issues by topical arrange­ For example, the citation "17 Cal Jur 3d (Rev) ment. The most popular legal digest for California 125" refers to volume 17 of California Jurispru­ (West's California Digest) is published by West dence, Third Edition (Revised), section 125. The Publishing Company. It divides the entire body of cited section deals with robbery and it provides a law into seven main divisions, thirty-two subhead­ detailed discussion on it. ings and approximately four hundred topics. A Witkin's California Law digest is published for each series of case reporters. Each topic is assigned a digest "key" A popular series on California Law is number. For example, Crim Law 625 is the key Witkin's. In the criminal law area, there is the 10 Chapter 1

California Crimes (two volumes) and California The Attorney General has charge, as attorney, (two volumes). The crimes of all legal matters in which the State is interested, volumes contain a critical textbook treatment of except the business of The Regents of the Univer­ the entire field of California criminal law , and the sity of California and of such other boards or procedure volumes does the same for California officers as are by law auth0l1zed to employ an criminal . Witkin, also, has a multi­ attorney. volume series on California and . Government Code 12519 Opinions on Questions of Law Law Reviews The Attorney General shall give his opinion in The major law schools in California publish writing to the Legislature or either house thereof, law reviews. In general, the law reviews contain and to the Governor, the Secretary of State, Con­ scholarly articles of various aspects of California troller, Treasurer, State Lands Commission, law. They are not legal authority, but are often Superintendent of Public Instruction, any state cited as persuasive authorities. The five most agency prohibited by law from employing legal popular law reviews in California are: other than the Attorney General, and any University of California Law Review (Cal. district attorney when required, upon any ques­ L. Rev.) tion of law relating to their respective offices. Hastings Law Journal (Hast. L. J.) Stanford Law Review (Stan. L. Rev.) Discussion University of California, As required by statutes, the Attorney General Law Review (U.C.L.A. L. Rev.) provides written conclusions on the legal ques­ University of Law tions submitted by the Governor, State Senate, Review (So. Cal. L. Rev.) Assembly, or any of the other state officials. The Law reviews are cited similar to court cases. opinions are generally of two types, formal and For example, an article in volume 50 of the informal. Formal opinions concern legal ques­ Standard Law Review which begins on page 192 tions that are of general statewide concern. They would be cited as: 50 Stan. L. Rev. 192. are published in Opinions o/the Attorney General. Informal opinions normally concern problems CALJIC that are of local interest only. Informal opinions California Instructions--Criminal (CAL­ are not usually published, but many are available HC) is a series of volumes containing standard to the public from the Attorney General's Office. jury instructions that a may use to instruct Informal opinions are generally issued in letter the jury regarding elements of crimes, defenses format. and other matters relating to the trial. Attorney General opinions are considered as "quasi-judicial" in character. While they do not LARMAC have the force and effect of statutes or court LARMAC is a consolidated alphabetized decisions, they are entitled to great weight and are index to the constitution and laws of California. It persuasive to the courts (D'Amico v. Medical includes all twenty-eight codes and the general Examiners 6 CA 3d 716 and People v. Berry 147 laws of California. It is the most complete index CA 2d 33). available on California law. 112 Attorney General Opinions CLASSROOM DISCUSSION QUESTIONS 1. What is the function of procedural law? Sub­ Government Code 12510 Department of Justice stantive law? The Attorney General is head of the Depart­ 2. Distinguish between constitutions (state or ment of Justice. federal) and statutory law as sources of crim­ Government Code 12511 State Legal Matters inallaw. Law and Crime 11

3. Since common law crimes have been abol­ 4. In the citation, 18 USC 431, the statute in ished in California, why is it important to question can be found in title 18, U.S. Code, understand common law concepts? page 431. 4. What do the below legal citations refer to: 5. United States Reports (U S), reports only a. 210 C 366 b. 10 USC 43 decisions issued by the U.S. Supreme Court. c. 177 US 1020 d. P.C. 285 6. Legal digests are legal authorities and may be 5. Why is it important to use the latest available cited in court. information on the subject that you are 7. The Attorney General issues two types of researching? opinion, formal and informal. 6. Distinguish between "crimen falsi" and 8. Informal attorney general opinions are gener­ "high crimes." ally issued in letter format. 7. What are some of the problems involved in 9. In California, there are two types of statutory prosecuting "victimless crimes?" law, statutes passed by the legislature and 8. Defme' 'bill of attainder. " initiatives. 9. Why is it necessary for criminal statutes to be 10. Most state crimes are contained in the penal certain and definite? and motor vehicle codes. 10. Define "police power" of the state. 11. General laws have uniform operation within the state. 12. Constitutions generally leave the creation and definition of crimes to statutory enactments. SELF STUDY QUIZ 13. The phrase "case law" refers to the body of True/False appellate court decisions which interpreted 1. In legal research, it is not important to check the meanings of constitutions and statutes. the latest available information since statutes 14. There are two basic types of precedent, man­ are rarely modified. datory and persuasive. 2. In legal citation formats, the name of the 15. Procedural law defmes crimes and estab­ volume being referred to always precedes the lishes punishments. volume number. 16. Most of the California criminal law princi­ 3. The page number contained in a case citation ples are traceable to the common law of is the page on which the court opinion starts. England. Chapter 2

The Nature of Law Justice is the right to the maximum of individual independence compatible with the same liberty for others. (Henri-Frederic Amiel, 1870)

2.1 Definition of Crime prohibited act shall be punished as a felony, mis­ demeanor or infraction, but does not include a Penal Code 15 Definition of "Crime" or Public specific penalty provision for its violation, then Offense the general punishment section of the Penal Code A crime or public offense is an act committed applies (Re Application of Gohike 72 CA 536). In or omitted in violation of a law forbidding or California, the words "crim~4!nd "public commanding it, and to which is annexed, upon offense" are considered as synonymous (Burks v. conviction, either of the following punishments: United States 287 F 2d 117). 1. Death, 2. Imprisonment, If the statute prohibits a certain act or omis­ 3. Fine, sion and provides a punishment for the violation, it 4. Removal from Office; or, is a crime. rn1ere is no requirement that the statute 5. Disqualification to hold and enjoy any expressly declare the act or of a clime. office of honor, trust or profit in this state. The infliction of harm to someone or damage to property, also, is not required unless expressly Discussion declared to be an element by the legislation (Peo­ ple v. Morrison 54 CA 469). While the word "crime" may comprehend every violation of a , the statutory All crimes are prosecuted in the state courts in definition is much narrower (17 Cal.Jur. 3rd (Rev.) the name of "The People of the State of Califor­ 1). To set forth a crime, a statute must first nia" and by written complaint (p C 740). Crimes describe Hie conduct that is prohibited and second are considered as crimes against the "People of provide a punishment for violation of the act. the State of California," in general, and not There are two types of statutes in the penal code, against persons individually. Accordingly, indi­ (1) enabling statutes and (2) criminal statutes. If vidual persons (except officials in the perfor­ the statute does not attach a punishment for the mance of their duties) have no official voice in violation of it, it is an enabling statute. The enab­ making decisions on whether or not to prosecute ling statutes are considered as explanatory in for the violation of a criminal offense (People v. nature. Weber 84 CA 2d 126). A prohibited act is not a crime unless the 2.2 Purpose of' Criminal Law statute provides a punishment (People v. McNulty 93 C 427). If the statute, however, states that the A U.S. District Court expressed the objective

13 14 Chapter 2

and purpose of criminal law in U.S. v. Watson (146 1. Provide a framework of behavior that can F. Supp. 258) as follows: be repeatedly applied with sufficient uni­ fonnity that the desired end will be contin­ The object of the criminal law is to uously reproduced within tolerated limits protect the public against depredations (Witkin, California Crimes, Sec. 1). of a criminal. On the other hand, its 2. Deter criminal behavior. purpose is also to prevent the convic­ 3. Award good behavior. tion of the innocent, or the conviction of a person whnse guilt is not estab­ This is accomplished when bad behavior is lished beyond a reasonable doubt. The punished. Persons who have not committed court must balance all these aims at the offenses for which they could be punished are trial. awarded by not being punished (passive rewards). If no behavior was punished, then non-punish­ One of the functions of criminal law is to ment would not be a reward. punish persons who have committed criminal offenses. Why punishment is considered neces­ 2.3 Construction of Penal Statutes sary was discussed by the Chief Justice of the Penal Code 4 Construction According to Fair Pennsylvania Supreme Court in 1930 (Common­ Import wealth v. Ritter 13 D & C 285). He stated: The rule of common law, that penal statutes Generally speaking, there have been are to be strictly construed, has no application to advanced four theories as the basis this code. All its provisions are to be construed upon which society should act in according to the fair import of their ternls, with a imposing penalties upon those who view to effect its objects and to promote justice. violate its laws. These are: (1) To bring Penal Code 5 Construction as to Existing Laws about the refonnation of the evil-doer; The provisions of this code, so far as they are (2) to effect retribution or revenge substantially the same as existing statutes, must upon him; (3) to restrain him phys­ be construed as continuations thereof, and not as ically, so as to make it impossible for new enactments. him to commit further crimes; and (4) Penal Code 7 Statutory Meaning of Various to deter others from similarly violating Words [part of first paragraph only] the law. Words used in this code in the present tense U.S. Criminal Code Reform Act of 1973 (93d include the future as well as tlle present; words Cong.,lst Sess., March 27, 1973) used in the masculine gender include the feminine The general purposes of this title are: and neuter; the singular number includes the plu­ (a) to define conduct which indefensibly ral and the plural includes the singular; the word causes or threatens haml to those individuals or "person" includes a corporation as well as a public interests for which federal protection is natural person; the word "county" includes "city appropriate. and county"; writing includes printing and type­ (b) to prescribe sanctions for engaging in such writing .... conduct which will: (1) assure just punishment for Discussion such conduct; (2) deter such conduct; (3) protect the public from persons who engage in such As stated above, the common law rule that conduct; and (4) promote the correction and penal statutes are to be strictly construed has been rehabilitation of persons who would engage in modified in California. Instead, penal statutes are such conduct ... constmed according to their nonnal usage with a view toward the objectives of the statute in ques­ There are many scholarly works on the pur­ tion. Despite this rule, there is still the require­ pose of criminal law. The most basic reasons ment to give the defendant the benefit of any attributed by most of the works are to: reasonable doubt (Carlos v. Superior Court 35 C The Nature of Law 15

3d 35). Accordingly, when a statute is capable of The word "willfully," when applied to the two reasonable constructions, the one most favor­ intent with which an act is done or omitted, able to the defendant should be used (People v. implies simply a purpose or willingness to commit Ralph 24 C 2d 575). the act, or make the omission referred to. It does not require any intent to violate law, or to injure The general rules of construction for criminal another, or to acquire any advantage. statutes are: The words "neglect," "negligence," "negli­ The codes of the state are to be read as a single gent," and "negligently" import a want of such unified whole, as if they were a single statute (Re attention to the nature or probable consequences Porterfield 28 C 2d 91). of the act or omission as a prudent man ordinarily bestows in acting in his own concerns. Words used in a statute will be construed in accordance with their commonly understood The word "corruptly" imports a wrongful meanings (Re Newbern 53 C 2d 786). design to acquire or cause some pecuniary or other advantage to the person guilty of the act or If a statute is capable of being reasonably omission referred to, or to some other person. construed in more ways than one, the most restricted meaning will normally be used (People The word "malice" and "maliciously" import v Kelly 27 CA 2d Supp 771). a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either A statute should be construed with reference by proof or presumption of law. to its purpose (People v. King 115 CA 2d Supp The word "knowingly" imports only a knowl­ 875). edge that the fact exists which brings the act or If a special and general statute both proscribe omission within the provisions of this code. It does the same criminal act, the presumption is that the not require any knowledge of the unlawfulness of special statute will prevail (17 Cal Jur 3d (Rev) 14). such act or omission. Where the constitutional right or privilege of The word "bribe" signifies anything of value an individual is concerned, there should be a or advantage, present or prospective, or any prom­ liberal, but reasonable, construction in favor of ise or undertaking to give any, asked, given or accepted, with a corrupt intent to influence, the individual (Ex parte Cohen 104 C 524). unlawfully, the person to whom it is given, in his If the common law meaning is not repugnant or her action, Yote, or opinion, in any public or to due process, it shall be used, unless the terms official capacity. are defined by constitutional or statutory provi­ The word "property" includes both real and sions or prior judicial decisions (Re Application of personal property. Lockett 179 C 581). The word "month" means a calendar month, Words and phrases must be construed accord­ unless otherwise expressed; the word "daytime" ing to the context and approved usage of the means L'1e period between sunrise and sunset, and language; but technical words and phrases, and the word "nighttime" means the period between such other as may have acquired a peculiar and sunset and sunrise. [Note: "nighttime" is a mean­ appropriate meaning in law, must be construed ingless distinction in most modern day criminal according to such peculiar and appropriate mean­ statutes, especially in California. At common law, ing (P C 7). the fact that the crime occurred during "night­ time" was an aggravating factor.] Statutory Meanings of Various Words The statutory meanings of various words are 2.4 Conflicts Between Laws U. S. Constitu­ contained in section 7 of the Penal Code. Listed tion, Article VI [second paragraph only] below are some of the key words defined in that This Constitution, and the Laws ofthe United section: States which shall be made in Pursuance thereof; 16 Chapter 2 and all Treaties made, or which shall be made, Independent State Grounds under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in Most of the safeguards in the state constitu­ every State shall be bound thereby, any Thing in tion are also contained in the U.S. Constitution, the Constitution or Laws of any State to the and the U.S. Supreme Court makes the final Contrary notwithstanding. [TIns clause is com­ determination on federal constitutional issues. If monly known as the "Supremacy Clause".] however, the issue is not a federal one and is decided on "independent state grounds", the Cal­ The Supreme Law of the Land ifornia courts make the final decision on the As stated above, the United States Constitu­ question. For example, since 1974 the prosecution tion is the supreme law of the land. Any state under federal law has been allowed to impeach an constitution, statute or court ruling whlch is in accused's in court testimony by use of a prior out conflict with it is unconstitutional. In the U.S. of court statement of the accused obtained without COImitution, there are 23 individual rights guar­ proper warnings. Until 1988, however, the state­ anteed to U.S. residents. Of these, 12 pertain to ments could not be used in California state courts criminal law and procedure. Most of the rights are on the theory that their use violated the California contained in the amendments to the constitution. Constitution and thus the admissibility was There are only two sections of the federal consti­ decided by the state courts on "independent state tution which forbids or defines conduct as crimi­ grounds." nal. They are Article III, Section 3, which defines treason and Amendment XIII, Section 1, which Statutory Conflicts forbids slavery or involuntary servitude. If the conflict is between a local ordinance and Each criminal law enacted in California must a state statute, then the local ordinance is void and be tested to ensure that it does not violate the without affect. For example, if there is a munici­ rights contained in the federal constitution. The pal ordinance and state statute which penalizes the U. S. Supreme Court makes the final decision on same conduct, the ordinance is void to the extent whether or not a state constitution or enactment that it is not in harmony with the statute (Ex parte conflicts with the federal constitution and is thus Solomon 91 C 440). Note: even if the ordinance is unconstitutional. in harmony with the statute, it may be void based The federal constitution also provides that on the concept that the state has pre-empted the federal laws and treaties are part of the supreme subject. law of the land. Accordingly, in case of conflicts, first in supremacy is the U.S. Constitution fol­ If two general state statutes are in direct lowed by federal statutes and U.S. treaties. If any conflict with each other, the last statute enacted part of the California Constitution or a California will be controlling based on the principle of repeal Code is in conflict with any of those three laws, by implication. Repeal by implication is not a the California enactment is unconstitutional. favored principle with the courts. Jfby reasonable construction both statutes can be given effect, The California Constitution then the courts will presume that the legislature The first part of the California Constitution is intended that construction. As the court stated in a Declaration of Rights. The declaration reflects People v. Armstrong (100 CA 2d Supp 852) it will many of the same rights as set forth in the U. S. be presumed that the legislature did not intend by Constitution. Any state statute which conflicts a later act to repeal a former one if, by a fair and with the safeguards contained in the California reasonable construction, effect can be given to Constitution is unconstitutional. The California both. Note: in situations involving repeal by Supreme Court makes the final decision on implication, only that portion of the earlier statute whether or not a state criminal law is in conflict which is in direct conflict with the latter statute is with the state constitution. considered repealed. The Nature ofLaw 17

2.5 Criminal and Civil Liability of . The fact that he was acquitted in In general, the courts say that, if an act criminal court is immaterial. If Gary pleads guilty is merely a threat to private interest or to rape and admits that he committed the crime, however, his statement that he committed the acts offends it, then the act is only a civil necessary to establish the crime of rape could be wrong - not a crime. Because of our used against him in civil court to help establish the ideas of dual responsibility, (liability both for civil and criminal) the wrong­ . doer may' 'be made to answer" in both One major difference between civil and crimi­ a criminal prosecutionand in a civil nal is that in civil trials the defendant does for . (Gammage & not have the right to refuse to testify. Protection Hemphill-Basic Criminal Law) against unreasonable searches and seizures, also, The basic difference between a civil law do not apply in civil cases. In addition, the civil wrong and a crime is that the civil law wrong is a defendant is not provided with an attorney if he/ wrong against an individual, whereas, a crime is she can not afford one. considered as a wrong against all of society. While In California, state civil cases are started by the crime of assault may be directed toward an the plaintiff filing a complaint or petition in muni­ individual victim, the wrong is still considered cipal Gustice court in rural areas) or superior against all of society. Civil cases are prosecuted by court. If the amount in controversy is small, the a plaintiff who is the person or persons alledgely complaint may be filed in the small claims divi­ injured by the alleged wrongful acts of the defen­ sion of municipal or justice court. dant(s). Note: in the State of California, all crimes are prosecuted in the name of' 'The People of the 2.6 Doctrine of Judicial Review State" and are alleged to be vi olations "against the peace and dignity of the state." The doctrine of judicial review is an estab­ lished principle of law in the United States. This doctrine provides the courts with the authority to "Torts," a French word meaning wrong, is review all statutory enactments, judicial decisions used to describe civil wrongs. Most torts involve of lower courts, and administrative determina­ either negligent conduct or intentional wrongs. tions within their jurisdiction. The principle, Note: some conduct is both a civil tort and a based on common law, was adopted by the U.S. criminal act. For example, if an individual Supreme Court in the famous case of Marbury v. assaults a victim, the individual has committed Madison, 2 L.Ed. 60 (1803). In this case, Chief both the tortuous act of assault and the criminal Justice John Marshall stated that it is the duty of act of assault. The individual may be prosecuted the courts to say what the law is and that when the for the criminal act and, at the same time in a courts apply the rule to particular cases, they must separate court case, sued by the victim in civil of expound and interpret that rule. The court for the tortuous conduct. Chief Justice then stated that if two laws conflict, the courts must decide on the operation of each. In a civil case, the standard of proof required Every state supreme court has accepted the princi­ to establish a right to recovery is preponderance of pIes set forth by the Chief Justice in Marbury v. proof whereas in a criminal case in order to Madison. convict an accused, the proof must be beyond a reasonable doubt. Preponderance of proof is a At the time that the decision was issued, much lessor standard or requirement. This dif­ Thomas Jefferson objected to the concept of judi­ ference in standards can produce different results cial review. In a letter in 1820, Jefferson stated" when the same issue is tried in both civil and ... to consider the judges as the ultimate arbiters criminal courts. For example, if a suspect is tried of all constitutional questions; a dangerous doc­ and acquitted of rape in a criminal court, he can trine indeed, and one which would place us under still be sued by the victim in civil court for the tort the despotism of an oligarchy." He correctly 18 Chapter 2

pointed out that the concept of judicial review is Subject Matter Jurisdiction not contained in our federal constitution. Subject matter jurisdiction refers to the power 2.7 Jurisdiction and Venue of a court to try the offense. There are three basic aspects to subject matter jurisdiction. These are: U.S. Constitution, Amendment 6 1. The offense in question must be one that In all criminal prosecutions, the accused shall the state has the power to prosecute. The enjoy the right to a speedy and public trial, by an power of a state to prosecute is restricted impartial jury of the State and district wherein the to the crimes that occur wholly within the crime shall have been committed ... stat», partially within the state or has an Penal Code 681 Legal Conviction Prerequisite effect within the state. to Pllnishment 2. The court must be competent to try the No person can be punished for a public crime. For example, a superior court has offense, except upon a legal conviction in a court no jurisdiction over a case charging only having jurisdiction thereof. misdemeanors in a county with a munici­ pal court (People v. Smith 231 CA 2d 140). Penal Code 777 Crimes in General 3. If exclusive federal jurisdiction exists or Every person is liable to punishment by the the offense is only a federal crime, then a laws of this State, for a public offense committed state court in California has no subject by him therein, except where it is by law cogniz­ matter jurisdiction. able exclusively in the courts of the United States; and except as otherwise provided by law the Jurisdiction of Person jurisdiction of every public offense is in any Jurisdiction of the person is also a basic competent court within the jurisdictional territory requirement in criminal proceedings. Presence in of which it is committed. court usually establishes jurisdiction over the per­ Discussion son. In most cases, the defendant must be present at the start of his/her felony criminal trial. In Jurisdiction is the authority by which courts cases, if the state takes personal and judicial officers take cognizance of and decide jurisdiction over an accused by arresting or citing cases. There are two types of jurisdiction; (1) of him/her to appear at a certain time and date, the the subject matter and (2) of the person. Venue failure of the accused to appear at the time set for refers to the physical or geographical location of trial can be considered as a waiver by the defen­ the court in which trial will be or has been tried. In dant of his/her right to appear. the Penal Code, the term "territory jurisdiction" is used in place of the common law word "venue." Venue In most cases, the two are considered as Normal venue of a criminal case is in the interchangeable. county and the district within which the crime was Jurisdiction alleged to have been committed. A change of venue from a COUlt ofone county to the same court Jurisdiction is the power of a court to try a in another county does not affect the latter court's case and to issue an order. Jurisdiction cannot be jurisdiction over the subject matter of the case conferred by consent (Griggs v. Superior Court 16 (People v Richardson 138 CA 404). C 3d 341). Jurisdiction must be alleged in the accusatory pleadings (People v. Smith 231 CA 2d Unlike subject matter jurisdiction, the parties 140). Jurisdiction may, however, be established by to a trial can consent to venue. For example, by a preponderance of the evidence and circumstan­ pleading guilty to the sale of a controlled sub­ tial evidence is sufficient to establish jurisdiction stance, the accused admits every essential element (People v. Cavanaugh 44 C 2d 252). The two of the crime charged except subject matter juris­ important types ofjurisdiction are "subject matter diction. (People v. Tabucchi 64 CA 3d 133). In this jurisdiction" and' 'jurisdiction over the person." case, the accused plead guilty to a crime that was The Nature of Law 19 alleged to have occurred in Stanislaus County. which the child was taken, detained, con­ Later, he attempted to get the conviction reversed cealed, found, or whe:-:-e the victimized because the offense did not occur in Stanislaus person resides or agency deprived of County, therefore; he could not be tried by the custody is located. Superior Court in that county. The California 11. For bringing or receiving stolen goods, in Supreme Court upheld his conviction. any county in which the goods were taken or received or in the county in The general rules regarding the proper court which they were stolen (p C 786). for venue are: 12. For criminal homicide, in any county 1. For crimes in general, in the county where the crime v'as committed where the crime was committed (P C or in the 777). county in which the body was found. 2. For nonsupport of child, in the county Establishing Venue where the child is cared for or in the county where the parent is apprehended (P C 777a). Venue represents a question offact, and there­ 3. For peljury committed outside of the fore must be alleged in the pleadings. This is state that is punishable in California, in normally accomplished by alleging that the the county where the proceeding was offense occurred in X county. The burden of proof being conducted (p C 777b). Note: this is on the prosecution to establish proper venue of situation would normally occur when a the court. Failure of the prosecution to enter any false document is made outside of the evidence of venue in a "not guilty" case will cause state to be used in court proceedings the conviction to be overturned on appeal (People within the state. v. Pollock 26 CA 2d 602). The courts, however, can make reasonable inferences from the evidence 4. For offenses planned outside the state and committed within the state, in the to establish venue. For example, the accused was charged with robbing a service station in Fresno. county in which the offense is completed (p C 778). The names of the streets where the station was located were entered into evidence, but not the 5. For offenses planned within the state and city. The victim testified that he lived in Fresno committed outside the state, in the and the Fresno Police Department investigated the county in which the offense was planned robbery. The court, in upholding the conviction, (P C 778a). stated that a reasonable inference was that the 6. For offenses committed in more than one crime had occurred in the City of Fresno and that, venue, may be tried in any county in venue unlike elements of the offense. is not wI-.tich any of the acts were committed or required to be proven beyond a reasonable doubt effects of the crime were felt (p C 781). (People v. Arline 13 CA 3d 200). 7. For offenses committed within 500 yards of any county boundary or on the bound­ Change of Venue ary line, in either county (p C 782). 8. For offenses committed on trains, air­ While the accused has a right to be tried in the planes, ships, motor vehicle in transit, in county where the crime occurred, often it is to the any county over which the vehicle trav­ accused's advantage to be tried elsewhere. Most eled in the course of u1.e trip (p C 783). common reasons are that he/she will be unable to 9. Abduction, kidnaping and , in receive a fair trial in the local county or that trial any county in which the offense occurred in a different county will be more convenient, i.e. or to which the victim was taken (P C family and witnesses are located in a different 784). county. The defense must request, by motion, 10. For child concealment, in any county in prior to trial for a change of venue. 20 Chapter 2

CLASSROOM DISCUSSION QUESTIONS 4. There is a substantial difference between a 1. Discuss the statutory meaning of the below crime and a public offense. words; do the statutory meanings vary with 5. One of the functions of criminal law is to the common everyday usage? punish persons who have committed criminal a. knowingly b. malice offenses. c. neglect d. property 6. In Califomia, penal statutes are strictly 2. What is the importance of judicial review? construed. 3. Distinguish between venue and jurisdiction. 7. The codes of the state are to be considered as 4. Explain the meaning of the "Supremacy a single uni.fied whole. Clause." 8. The U.S. Constitution is considered as the 5. What is the meaning of the phrase' 'indepen­ supreme law of the land. dent state grounds?" 9. If a federal law conflicts with the California 6. If a federal law conflicts with a state constitu­ Constitution, the federal law must be tion, which will prevail? unconstitutional. 7. If two state statutes are in direct conflict with 10. If there is a conflict between a local ordinance each others, which one will prevail? and a state statute, the last one passed 8. What is the basic difference between a civil controls. law wrong and a crime. 11. In a civil trial, the accused has a right to a 9. Define' 'tort. " government appointed counsel. 10. When is a prohibited act a crime? 12. Venue refers to the geographical or physical location of the court in which trial will be or SELF STUDY QUIZ has been tried. True/Fals~ 13. Subject matter jurisdiction requirement may 1. There are two types of penal statutes, crimi­ be waived by the accused. nal and enabling. 14. The normal venue of a criminal ~<'lse is in the 2. If the statute does not attach a punishment for county where the crime occurred. the violation of it, it is an enabling statute. 15. For offenses committed in more than one 3 All crimes are prosecuted in the name of the county, the correct venue is in the county . where most of the acts occurred. Chapter 3 Classification of Crimes No one is entirely useless. Even the worst o/us can serve as horrible examples. (Anonymous, in a state newspaper.)

3.1 Distinction Between Felonies, Misde- (5) When, at or before the preliminary exam­ meanors and Infractions ination or prior to filing an order pursuant to Penal Code 17 Felony and Misdemeanor Section 872 [that section pertains to holding the Defined accused over to answer for a felony], the magis­ (a) A felony is a crime which is punishable trate detennines that the offense is a misde­ with death or by imprisonment in the state prison. meanor, in which event the case shall proceed as if Every other crime or public offense is a misde­ the defendant had been arraigned on a misde­ meanor except those offenses that are classified as meanor complaint. infractions. (c) When a defendant is committed to the (b) When a crime is punishable, in the discre­ Youth Authority for a crime punishable, in the tion of the court, by imprisonment in the state discretion of the court, by imprisonment in the prison or by fine or imprisonment in the county state prison or by fine or imprisonment in county jail, it is a misdemeanor for all purposes under the jail, the offense shall, upon the discharge of the following circumstances: defendant from the Youth Authority, thereafter be (1) After a imposing a punishment deemed a misdemeanor for all purposes. [Sub­ other than imprisonment in the state prison. paragraph (d) omitted.] (2) When the court, upon committing the defendant to the Youth Authority, designates the Penal Code 19.4 Public Offenses With No Pre­ offense to be a misdemeanor. scribed Penalty-Misdemeanor (3) When the court grants to a When an act or omission is declared by a defendant without imposition of and at statute to be a public offense, and no penalty for the time of granting probation, or on application of the offense is prescribed in any statute, the act or the defendant or probation officer thereafter, the omission is punishable as a misdemeanor. court declares the offense to be a misdemeanor. (4) When the prosecuting attorney files in a Penal Code 19.7 Application of Misdemeanor Law court having jurisdiction over misdemeanor to Infractions offenses a complaint specifying that the offense is Except as otherwise provided by law, all a misdemeanor, unless the defendant at the time of provisions of law relating to misdemeanors shall his arraignment or plea objects to the offense apply to infractions, including but not limited to being made a misdemeanor, in which event the powers of peace officers, jurisdiction of courts, complaint shall be amended to charge a felony periods for commencing action and for bringing a complaint. case to trial and burden of proof.

21 22 Chapter 3

Discussion felony offense, at the preliminary hearing the judge may reduce it to a misdemeanor offense. Crimes and public offenses are classified as felonies, misdemeanors or infractions. The high­ 3.2 Punishments est and most serious crime in California is a felony. A felony is any crime that is punishable by Penal Code 12 Duty to Determine and Impose death or imprisonment in a state prison. Next, in Punishment tenns of seriousness, is a misdemeanor. A misde­ The several sections of this code which meanor is a crime that is punishable by fine and/or declare certain crimes to be punishable as therein imprisonment in a county jail for not more than mentioned, devolve a duty upon the court autho­ one year. The lowest type of crime is an infraction. rized to pass sentence, to detennine and impose An infraction is a crime that is punishable only by the punishment prescribed. a fine. (Note: a person charged only with an Penal Code 13 When Punishment Left infraction is not entitled to ajury trial.) If a statute Undetermined provides for imprisonment but does not specify Whenever in this code the punishment for a the place of confinement, the crime is a misde­ crime is left undetennined between certain limits, meanor (Union Ice Co. v. Rose 11 CA 357). the punishment to be inflicted in a particular case The label that the legislature affixes to a crime must be detennined by the court authorized to does not detennine its classification. The classi­ pass sentence, within such limits as may be pre­ fication is based on the nature of the offense and scribed by this code. its authorized punishment. In one case the statute Penal Code 19.2 Confinement in County Jail Not deemed the act a felony, but only authorized to Exceed One Year punishment in the county jail and/or a fine. The In no case shall any person sentenced to court held that the offense was a misdemeanor not confinement in a county or city jail ... except on a felony (People v. Sacramento Brothers' Butchers' the conviction of more than one offense when Protective Assoc. 12 CA 471). consecutive sentences have been imposed, be committed for a period in excess of one year; Wobblers provided that the time allowed on parole shall not In most cases, it is not the punishment be considered as part of the period of awarded by a court that detennines whether or not confinement. a crime is a felony, misdemeanor or infraction; but Penal Code 19.6 Infractions Not Punishable by the punishment that could have been imposed. Imprisonment There are some offenses, however, that are consid­ An infraction is not punishable by imprison­ ered as "wobblers". Wobblers are offenses that are ment. A person charged with an infraction shall either felonies or misdemeanors depending on the not be entilled to a trial by jury... [or] counsel· sentences awarded at court or action by the court appointed at public expense .... after conviction. Wobblers are treated as felonies until sentencing time unless the crimes are for­ Discussion mally charged as misdemeanors. When an act or omission is declared by a statute to be a crime and punishment is provided For example, Penal Code 524 provides that an for, but no specific penalty is prescribed in the attempted extortion may be punished by imprison­ statute, then the general punishment statutes pre­ ment in the county jail or in a state prison. vail. In Califomia, even in jury trials, the judge Accordingly, it is a "wobbler." If the accused on has the duty to impose sentences. conviction receives a jail tenn, then it is a misde­ meanor conviction. If he or she receives a prison In capital cases with a jury, however, the jury tenn, then it is a felony conviction. Note: the must make a finding as to whether special circum­ district attorney can charge it as a felony or stances exist and if so, do they outweigh the misdemeanor. If the DA charges the offense as a mitigating circumstances before the death penalty Classification of Crimes 23 can be imposed. Note: there are 19 special circum­ by imprisonment in a state prison. The power to stances listed in Penal Code 190.2 that permit the fix the length of sentence was given to the Adult imposition of the death penalty. They are dis­ Authority, an administrative agency. The Indeter­ cussed in Chapter 9. For example, if the accused minate Sentencing Act was repealed in 1977 and with no prior criminal record intentionally kills applies now only to persons serving sentences for his girlfriend by administering poison, the jury crimes committed period to July 1, 1977. must decide that the special circumstances (death by poisoning) outweigh the mitigating circum­ Determinate Sentencing stances (no prior criminal record) before the death For offenses committed on or after July 1, penalty may be imposed. 1977, the Determinate Sentencing Act (p.C. Concurrently or Consecutively 1170-1170.95) applies. Under this act, if the court gives a sentence that includes confinement in a When the accused is convicted of two or more state prison, the court must fix a specified term of crimes, the judge is required to make a determina­ imprisonment. Note: the act also requires the tion as to whether or not the sentences will be judge under most circumstances to pronounce served concun'ently or consecutively. Sentences sentence within 28 days after a of guilty or that are served concurrently are served at the same the acceptance of a guilty plea (P C 1191). (The time. Consecutive sentences are served one at a accused may and often does waive this 28 day time; one following the other. For example, the requirement.) defendant is convicted of two crimes, arson and robbery. If he received two years for each offense If the statute specifies three possible terms of and the sentences are served concurrently, he will punishment, the court shall order imposition of serve a maximum of two years. If the sentences the middle term (often referred to as "mid­ run consecutively, he will first serve one sentence term' '), unless there are circumstances in aggrava­ and when that sentence is completed, then the tion or mitigation of the crime (P C 1170). For other (two years plus two years for a maximum of example, the stated penalty for extortion is four years). Note: if the accused has pending imprisonment in a state prison for two, three or confinement from a previous court, the court four years (P C 520). The "mid-term is three should also indicate whether the present sentence years. If this is the first offense, the court will will be served concurrently or consecutively with probably impose only the two year term (the the sentence given in the prior court. "mitigated tenn' '). If the offense is an aggravated Maximum Jail Term one, the court may impose the four year term (the "aggravated term"). Aggravated factors include The maximum time that an accused may harm or hardship imposed on victim, prior record serve in a county jail on the conviction of one of the accused, etc. offense is one year. If, however, tlle accused is convicted of more than one offense and the sen­ The general objectives of punishment in Cal­ tences are not served concurrently, the one year ifornia under the Determinate Sentencing Act maximum time does not apply. include (Judicial Council, Rules of Court, Rule 410): Indeterminate Sentencing 1. Protecting society Indeterminate sentencing refers to those sit­ 2. Punishing the defendant. uations where the court does not fix a term of 3. Encouraging the defendant to lead a law imprisonment as punishment. The sentence of abiding life in the future. imprisonment as awarded by the court, therefore, 4. Deterring others from criminal conduct is an indeterminate one. In 1917, California by demonstrating its consequences. adopted the Indeterminate Sentencing Act. The 5. Preventing the defendant from committing act divested the trial judge of the authority to fix new crimes by isolating him for the period the term of imprisonment for offenses punishable of incarceration. 24 Chapter 3

6. Securing for the victims of Test For Lesser and Included Offense crime. 7. Achieving uniformity in sentencing. The test to determine if one offense is a necessarily included offense of another is that 3.3 Prior Convictions when one offense cannot be committed without committing the other offense, then the latter Prior convictions have three main effects on offense is a necessarily included offense. For the sentences given by the courts: example, an accused could not be convicted of 1. Establish certain minimum penalties. both an assault and a battery for the same act of 2. Provide for increased sentences. striking a victim in the face with his fist. The 3. May provide for the of the assault is a necessarily included offense of the accused as a habitual criminal. battery. It is not an included offense if additional Prior convictions are considered as punish­ evidence is required to convict the accused of the ment •• enhancements," referring to their effects lessor offense. For example, speeding is not a on the punishments given by the courts. (Note: necessarily included offense of driving under the there are other enhancements contained in the influence, because an individual may be driving Penal Code such as the use of a gun in committing under the influence without exceeding the speed a crime.) The enhancements based on prior con­ limit. Note: a single act may violate two separate victions are found in P C 666 through P C 668. statutes and therefore constitute two separate The general provisions ofP C 668 permit the use crimes. For example, the accused may be speed­ of convictions in other states subject to certain ing and also driving under the influence. The act limitations as a sentence enhancement. of driving, therefore, constitutes two separate crimes. 3.4 Lesser and Included Offenses Penal Code 1159 Conviction of Offense Included 3.5 Double JeOpardy in Charge The jury, or the judge if a jury trial is waived, U. S. Constitution, Amendment 5 [partial] may find the defendant guilty of any offense, the [N]or shall any person be subject for the same commission of which is necessarily included in offense to be twice put in jeopardy of life or that with which he is charged, or of an attempt to limb .... commit the offense. Discussion Constitution of the State of California, Article I, Section 15 [partial] As stated in the above code, the defendant Persons may not twice be put in jeopardy for may be convicted of any offense, the commission the same offense. of which is necessarily included in the crime with which he/she was charged. A defendant, however, Definition can not be convicted of an included offense which is barred by the statute of limitations, even if the The constitutional guarantee against double statute has not expired for the greater offense jeopardy involves three separate protections: charged (People v. Miller 12 C 291). If the defen­ 1. Protecting an accused from being pros­ dant is charged with two offenses in separate ecuted for the same offense after acquittal. counts and one is necessarily included in the 2. Protecting an accused from being pros­ other, he/she can not be sentenced for both (People ecuted for the same offense after v. Sutton 35 CA 3d 264). For example, assault is a conviction. necessarily included offense to battery. Accord­ 3. Protecting an accused from multiple ingly, for one act that amounts to a battery, the punishments for the same criminal con­ accused may not be sentenced for both the assault duct. (United States v. Di Francesco 449 U (which is included in the battery) and the battery. S 117) 1 Classification of Crimes 25

Discussion general plea of not guilty does not raise the issue (People v. Barry 153 CA 2d 193). The underlying idea, one that is deeply ingrained in at least the Anglo-Ameri­ Different Crimes can system ofjurisprudence, is that the If the same act is made punishable by different State with all of its resources and provisions of the California statutes, it may be power should not be allowed to make punished under any of them. In no case, however~ repeated attempts to convict an individ­ may the accused be punished under more than ual for an alleged offense, thereby sub­ one, and an acquittal or conviction and sentence jecting him to embarrassment, under one bars (prevents) the prosecution under expense and ordeal and compelling another provision (People v. Manago 230 CA 2d him to live in a continuing state of 645). Note: if either crime requires the proof of a anxiety and insecurity, as well as different fact additional to those involved in the enhancing the possibility that even other, there is no double jeopardy (People v. Col­ though innocent he may be found trin,5 C 2d 649). For example, the accused may guilty (Green v. United States 355 US be charged with the possession of an illegal fire­ 184). arm and robbery involving the use of a firearm. The purpose of the doctrine is to protect an This is based on the fact that to establish robbery, accused from the of multiple trials. additional facts are needed other than the posses­ Accordingly, to be placed in jeopardy for a second sion of a firearm. In addition, to establish illegal time, the accused must be placed on trial for a possession of a firearm, the prosecution must second time (People v. Thomas 121 CA 2d 754). establish that possession of the weapon was ille­ Double jeopardy does not apply where the trial is gal; a fact that is not required for the robbery bifurcated (separated into two separate proceed­ charge. A defendant's conviction for reckless driv­ ings) by the defendant who enters both "not ing did not prevent the state from trying him for guilty" and "not guilty by reason of insanity" manslaughter committed by the same conduct pleas (People v. Coen 205 C 596). since different elements were required to be estab­ lished for each crime (People v. Herbert 6 C2d 541) Identity of Offenses Res Judicata For double jeopardy to apply, the prosecution Double jeopardy is not the same as "res must be for the same offense as that involved in the judicata. ,. Res judicata. a Latin phrase meaning earlier proceedings. For purposes of double "stands decided, " is based on a final adjudication jeopardy, offenses are considered the same if one of the same issue involving the same parties to the is necessarily included in the other. trial. Double jeopardy attaches in most cases prior Waiver to final adjudication and unlike "res judicata" is a constitutionally protected right. In addition, "res Since double jeopardy is not a jurisdictional judicata" applies also to civil proceedings, issue, the accused must assert the bar against whereas double jeopardy, applies only to criminal prosecution. The double jeopardy bar is regarded cases. as waived unless the defense raises it during pleading. If the defense is asserted, the defense Protection against double jeopardy does not has the burden to establish the validity of the apply to civil or administrative proceedings. former jeopardy claim (People v. Eggleston 255 Accordingly, a gun owner's acquittal on criminal charges involving firearms does not bar a subse­ CA 2d 337). quent prosecution in forfeiture proceedings (civil Double jeopardy as a bar to prosecution must action) against the firearms (U.S. v. One Assort­ be specifically pleaded in the form prescribed by ment of Firearms 79 L Ed 2d 361). Note: res the Penal Code. The pleas must indicate the time, judicata did not apply because there are different place and court of the alleged former jeopardy. A parties involved. In the criminal case, the accused 26 Chapter 3

was the party and in the civil case being the accused and not required by law is "in rem" the case was against the guns. (' 'In rem" tantamount to an acquittal and bars a proceedings refers to the fact that the action in the retrial (People v. Webb 38 C 467). case is against an object, not a person.) 3. A mistrial granted on motion of the defense is not a bar to a second trial. A Attachment of Jeopardy mistrial, however, granted by the court to As noted above, double jeopardy does not protect the rights of the accused is a bar to apply unless the accused has previously been put a second trial unless the accused in jeopardy. Listed below are some of the cases to the mistrial or a mistrial is required by involving the question of whether or not the the law (People v. McNeer 8 CA 2d 676). accused has been placed in jeopardy: 4. A mistrial granted when the jury is unable 1. he accused is acquitted based on a vari­ to reach a verdict is within the discretion ance between the pleading and the evi­ of the judge and absent abuse of discretion dence entered at trial. No double jeopardy by the judge, it is not a bar to a second trial if the acquittal is based on mere variance (Curry v. Superior Court 2 C 3d 707 and P rather than on an entire want of evidence. C 1140). This is based on the concept that since he 5. A mistrial granted where because of sick­ could not be convicted on the pleadings, ness of a jury member or an accident he never was in jeopardy. If the variance, prevents the jury from reaching a verdict is however, is immaterial and the accused not a bar to a second trial (P C 1141). could have been convicted, then the dou­ 6. A mistrial granted on motion of the defen­ ble jeopardy bar would apply (People v. dant is no bar to a second prosecution Webb 38 C 467) ( v. Kennedy 456 U S 667). When 2. Jeopardy attaches in ajury case, when the an accused requests a mistrial or appeals a jury has been impaneled and sworn (Peo­ court judgment, the motion or appeal is ple v. Hinshaw 194 C 1). considered as a waiver of the double 3. Jeopardy attaches in a judge alone case, jeopardy bar. The one exception to this when the trial has been "entered upon" rule is when the conviction is reversed on (People v. Beasley 5 CA 3d 617). A trial appeal based on insufficient evidence to has been "entered upon" when either the support the conviction as a matter of law. first witness is sworn or evidence is In this latter case, double jeopardy protec­ entered against the accused. tion is a bar to retrial (Burks v. U.S. 437 U 4. Jeopardy does not attach if the pleading S 1). are invalid (People v. Webb 38 C 467). 7. The double jeopardy protection prevents the state from appealing an acquittal. If, After Jeopardy Attaches however, the state successfully appeals a In certain situations, the accused may be tried court order dismissing an indictment or again even if jeopardy has attached. Listed below information prior to jeopardy attaching, are some common situations involving the ques., the accused may be re-tried (People v. Petti tion of whether or not the accused may be tried a 149 CA 3d 1). second time. Dual Sovereignty Doctrine 1. A double jeopardy bar prevented prosecu­ tion when the first case was dismissed Dual sovereignty doctrine applies when the after the jury was sworn without the con­ same conduct constitutes crimes against more sent of the accused and when not autho­ than one state or the federal government. In these rized by law (Cardenas v. Superior Court situations, the accused has violated the criminal 56 C2d 273). statutes of two different sovereigns (normally 2. Discharge of the jury prior to the jury state and federal) and therefore he/she may be rendering a verdict without the consent of tried by both governments. For example, robbing

------Classification of Crimes 27 a federally insured bank in the state is a violation Penal Code 802 One Year Limitation; of both state and federal law and the accused may Exceptions be prosecuted by both. Note: the restrictions (a) Except as provided in subdivision (b), imposed in California by Penal Code 794 (dis­ prosecution for an offense not punishable by death cussed below). or imprisonment in the state prison shall be com­ menced within one year after commission of the Statutory Bar offense. [A misdemeanor.] (b) Prosecution for a misdemeanor violation "Statutory Bar" is a phrase sometimes used of Section 647.6 or former Sec'uon 647a [those by the courts if the bar to prosecution is created by sections pertain to misdemeanor child molesters, statute and not by constitution. There are several i.e. annoying or molesting a child under circum­ provisions in the Penal Code which bar prosecu­ stances not amounting to a felony], committed tion in cases where the constitutional protection of with or upon a minor under the age of 14, shall be double jeopardy does not. For example, Penal commenced within two years aftger the commis­ Code 794 provides that when an act is also a sion of the offense. criminal act in another state or country, the acquit­ tal by a court in the other state or country will bar Penal Code 804 When ·Prosecution for an prosecution in the State of California. Offense is Commenced For the purpose of this chapter, prosecution 3.6 Statute of Limitations for an offense is commenced when any of the following occurs: Penal Code 799 No Limitation for (a) an indictment or infonnation is filed. Commencement of Prosecution (b) A compliant is filed with an inferior court Prosecution for an offense punishable by charging a public offense of which the inferior death or imprisonment in the state prison for life court has original trial jUrisdiction. or for life without the possibility of parole, or for (c) A case is certified to the superior court. the embezzlement of public , may be com­ (d) An arrest warrant or warrant is menced at any time. issued, provided the warrant names or describes the defendant with the same degree of par­ Penal Code 800 Six-Year Limitations ticularity required for an indictment, information, Except as provided in Section 799, prosecu­ or complaint. tion for an offense punishable by imprisonment in Definition the state prison for eight years or more shall be commenced wi thin six years after the commission The statute oflimitations sets forth the period of the offense. of time after the commission of the crime within which prosecution against the accnsed must be Penal Code 801 Three-Year Limitation started. Failure to start the prosecution within the Except as provided in Sections 799 and 800, required time period acts as a "bar" to prosecu­ prosecution for an offense punishable by tion. Note: as indicated in PC 799, some crimes imprisonment in the state prison shall be com­ like murder have no statute of limitations. menced within three years after commission of the Discussion offense. [A felony] The statute oflimitations requires that crimi­ Penal Code 801.5 Three-Year Limitation - nal prosecutions commence within a certain Fraudulent Insurance Claims period oftime after the crime occurred. There are Notwithstanding Section 801 or any other time periods, however, which are excluded in provision of the law, prosecution for a violation of determining whether or not prosecution was Section 556 of the Insurance Code shall be com­ started within the required time. The excluded menced within three years after discovery of the time periods are noted below. The statute of commission of the offense. limitations is a jurisdictional requirement. 28 Chapter 3

Accordingly, failure to begin prosecution within The term used is that the statute of limitations is the required time bars the state from prosecuting "tolled" during that period of time. Listed below the accused (People v. Doctor 257 CA 2d 105). In are the most common events that either tolls or addition, the accused may assert the bar oflimita­ delays the running of the statute of limitations: tions at any time during the trial (People v. Witt 53 1. During the period of time that the accused CA 3d 154). is absent from the jurisdiction of the state (for a maximum of three years) (P C Offenses with a six-year statute oflimitations 803(e). Note: the absence may be estab­ include: lished by circumstantial evidence such as 1. Rape (P C 261) a fruitless search for the defendant (People 2. Child molesting (p C 288) v. McGill 10 CA 2d 159). 3. Sodomy by force or fear (P C 286d) 2. In many cases, the statute of limitations 4. Oral copulation by force or fear (P C 288a) does not start until the discovery of the Offenses with a three year statute of limita- offense or when it should have been dis­ tions include: covered (P C 803). 1. Grand theft (p C 487) 3. During the period of time that the accused 2. Felony welfare fraud (W & I 11483) is being prosecuted or prosecution is pend­ 3. Forgery (P C 470) ing for the same conduct in any California 4. Manslaughter (p C 192.1 or .2) state court (P C 803 (b». For example, the 5. PeIjury (p C 118) defendant is charged with the commission of an offense within the time period. If all Note: there is no statute of limitations for charges are later dismissed, the period of murder, embezzlement of public money, and kid­ time that the charges were pending is napping for ransom. excluded in computing the time period. Prosecution, for statute of limitations pur­ poses, is normally started with an arrest of the If the defendant is accused of an offense for defendant on a warrant or the filing of a sworn which the statute does not bar prosecution, he/she information, complaint, or indictment. The infor­ cannot be convicted of a lessor included offense mation, complaint, or indictment must indicate on for which the statute does bar prosecution. For its "face" that the statute has not expired (ranout). example, in People v. Rose (28 CA 3d 415) the This requirement is normally accomplished by defendant was indicted for murder many years pleading the date on which the offense occurred. after the crime was committed. (Note: there is no By looking at that date and the date on which the limitation period for this offense.) The court held information or indictment was fIled is normally that he could not be convicted of manslaughter (a sufficient to indicate that the statute of limitations lessor included offense) because the statute of does not bar prosecution. When the pleadings are limitations barred prosecution for the manslaugh­ sufficient, then the question as to whether the ter charge. Note: a court, however, held in one case statute of limitations bars prosecution is an evi­ that an accused could be convicted of conspiracy dentiary question for the courts to decide (People to commit a misdemeanor (a felony) even though v. Padfield 136 CA 3d 218). the statute of limitations barred prosecution on the subject misdemeanor (People v. LilUock 265 CA Time is computed by excluding the first day 2d 419). (date the crime was committed) and including the last (when prosecution starts) (People v. Twedt 1 C Modification of Statute of Limitations 2d 392). In the case of a continuing offense, the If the statute of limitations bars the prosecu­ last day that the offense was committed or con­ tion of a crime, the later modification of the statute tinued is the date used as the first day. does not extend the period of time to prosecution. There are certain periods of time are that are If, however, the statute of limitations does not excluded in computing the statute of limitations. presently bai prosecution, the legislature may

I ~ Classification of Crimes 29 extend it for previously committed crimes (Sobiek 2. If the crime is punishable by imprisonment in v. Superior Court 28 CA 3d 846). In that case, the a state prison or in county jail, it is a accused was charged with forgery committed "wobbler. " before the legislature extended the statute of lim­ 3. When an act is declared to be a crime, and the itations. The court stated that the legislature could punishment is not otherwise defined, it is extend a still operative period of limitations but considered a misdemeanor. could not revive a period that has already expired. 4. The label that the legislature puts on a crime determines whether or not it is a felony, misdemeanor or infraction. 5. In no case, may a person be sentenced to CLASSROOM DISCUSSION QUESTIONS confinement in a county jail for a period in 1. Explain the test for lessor included offenses. excess of one year. 2. Under what circumstances mayan accused 6. Crimes committed during this calendar year be placed in jeopardy twice for the same are prosecuted under the Indeterminate Sen­ conduct? tencing Act. 3. What are the purposes of the protection 7. It is always to the advantage of the accused to against double jeopardy? have his periods of confinement to run 4. What periods of time are excluded in deter­ consecutively. mining whether or not the statute of limita­ 8. The purpose of the statute oflimitations is to tions bars prosecution in a case? protect an accused from harassment of multi­ 5. An accused commits the crime of murder on pIe trials. September 1, 1988. He leaves the state the 9. The protection against double jeopardy also next day. When does the statute of limitations applies to civil proceedings. start to run? 10. A second trial may not be held when the first 6. What is a "wobbler?" How do you recognize trial ends in a mistrial because of a jury one? member's sickness. 7. Under what circumstances mayan accused 11. Some crimes, such as murder, have no statute be confined in a county jail in excess of one of limitations. year? 12. The statute of limitations sets forth the time 8. When would a court normally impose the in which the accused must be convicted. "mid-term" sentence? 13. In some cases, the statute oflimitations does 9. What are the three main effects of prior not start to run until the offense has been convictions on sentences imposed by the discovered. courts? 14. In computing the period oftime for purposes 10. What is an "enhancement?" of determining if the statute oflimitations has run, the day that the offense was committed is excluded. SELF STUDY QUIZ 15. The period that an accused is absent from the TruelFalse state (up to a maximum of three years) is 1. Felonies and misdemeanors are punishable excluded for the time period for statute of by imprisonment in the state prison. limitations purposes. Chapter 4

Corpus Delicti and Capacity The first prison I ever saw had inscribed on it: "Cease to do evil: learn to d~ well." The inscription, however, was on the outside of the wall, and the prisoners could not read it. (George Bernard Shaw -On Imprisonment)

4.1 Role of Corpus Delicti the act and the intent must be joined together in Corpus delicti literally means "the body of time for at least a brief period. For example, the crime." Corpus delicti of a criminal offense is burglary requires the entering of a building with the required elements of the crime. A person, the intent to commit larceny or a felony therein. In therefore, cannot be convicted of a crime unless order to be burglary, the accused must have had the prosecution establishes the corpus delicti, i.e. the intent to commit either larceny or a felony that a crime has been committed, therein at the time of the entry. Accordingly, if the accused enters a room and after entry, fonns the Identity of the offender is not an essential intent to steal, he or she may be guilty of larceny element of corpus delicti. To successfully pros­ but not burglary since the intent (to steal) and the ecute, however, the prosecution must establish act (entry) were not connected in time. that the accused was the one who committed all the elements of the crime. Note: corpus delicti can Criminal Act not be established solely from the confessions of Criminal acts are usually affinnative and vol­ the accused. There must be other independent untary acts of the defendants. Criminal acts, evidence to establish that the crime did occur (In however, may be: re Robert P. 121 CA 3d 36). 1. Verbal acts or words as in peIjury. 2. A failure to act when there is a duty to act. 4.2 Act and Intent 3. The act of agreement in a conspiracy. Penal Code 20 Unity of Act and Intent or 4. The act of possession in crimes involving Negligence illegal possession. In every crime or public offense there must Passive Participation exist a union, or joint operation of act and intent, or . Passive participation is where a person allows an act to occur but no active act is involved. In Discussion cases where the passive individual has a duty to In order to constitute criminal conduct, there act, passive participation is sufficient to constitute must be a unity in time of the act and the intent or the criminal act. For example, a mother who fails criminal negligence. A frequently used equation to feed her infant resulting in death to the infant to illustrate this is: Crime· Criminal Act (or has committed a criminal act. The security guard )· Criminal Intent (or ). Both who deliberately al10ws company materials to be

31 32 Chapter 4 stolen may be a passive participate in the crime. general intent crimes, there is no requirement to Note: mere presence at the scene of a crime and establish that the accused knew his/her act was failure to take steps to prevent it is not normally wrongful. All that is necessary is that the act was criminal conduct (People v. Vernon 89 CA 3d 853). done volitionally or will:fully. For example, driv­ ing 55 m.p.h. in a school zone is a crime. It does 4.3 Intent not matter that the accused was unaware that he Penal Code 21 Intent Manifested by was in a school zone or the fact that his speedome­ Circumstances ter was broken which prevented him from know­ (a) The intent or intention is manifested by the ing that he was driving in excess of the speed circumstances connected with the offense. limit. To successfully prosecute, the state would (b) In the guilt phase of a criminal action or a need only to establish that the accused was juvenile adjudication hearing. evidence that the willfully driving, and his speed was in excess of accused lacked the capacity or ability to control the legal limit. his conduct for any reason shall not be admissi.ble Specific Intent on the issue of whether the accused actually had Some crimes require more than a general any mental state with respect to the commission of criminal intent. To commit a specific intent crim e, any crime. This subdivision is not applicable to the accused must have contemplated the ultimate Section 26. [Section 26 deals with persons incapa­ act (People v. Armentrout 118 CA Supp 761). For ble of committing crime.] example, larceny is a specific intent crime. Before Discussion an accused can be convicted of larceny, the state must establish that he/she had a specific intent to There are two general types of intent used in steal at the time that the property was taken. For criminal law; specific intent and general criminal example, Jerry leaving a restaurant sees a coat that intent. The legislature determines the type of looks like his. Thinking that the coat is his, he intent required for the commission of a particular takes it. Even though the taking of the coat was crime. Ifthe language of the statute is unclear as to wrong, he is not guUty oflarceny (a specific intent the type of intent required for conviction, often the crime) since there was no specific intent to steal courts look to common law for guidance. In the the coat. trial of the case, the presence or absence of the required intent is a question of fact. The trial The California Supreme Court discussed the court's determination as to the presence or differences between general and specific intent in absence of the required intent, if based on sub­ People v. Hood (1 C 3d 857). The Court stated: stantial evidence, will not be disturbed on appeal "When the definition of a crime consists of only (People v. Armstrong l()() CA 2d Supp 852). the description of a particular act, without refer­ ence to intent to do a further act or achieve a future The Penal Code provides that intent is man­ consequence, we ask whether the defendant ifested by the circumstances connected with the intended to do the proscribed act. This intention is offense. Note: certain persons are considered as deemed to be a general criminal intent. When the incapable of committing certain crimes because of definition refers to defendant's intent to do some a lack of requisite mental state e.g. very young further act or achieve some additional conse­ children and insane persons. The lack of capacity quence, the crime is deemed to be one of specific to commit a crime is discussed later in this intent. There is no real difference, however, only a chapter. linguistic one, between an intent to do an act General Intent already performed and intent to do that same act in the future." General intent is the intent that is inferred by the doing of an act or the failure to act. To constitute general criminal intent, it is not neces­ Transferred intent, also referred to as sary that there should exist an intent to violate the constructive intent, applies where there is a dif­ law (People v. Williams 102 CA 3d 1018). In ference between the criminal act intended and the Corpus Delicti and Capacity 33

act actually committed. For example, a person 7. There must be a direct connection between intending to kill one person by kills the negligent conduct and the injury or another. In this case, the doctrine of transferred harm. intent would be used to imply a willful killing of 8. There must be injury or harm resulting the actual victim (People v. Buenaflore 40 CA 2d from the negligent conduct. 713). The doctrine of transferred intent is most often applied to murder and assault with the intent 4.5 Proximate Cause to kill cases. problems normally arise in crimi­ As one judge stated (Gladden v. State 273 Md. nallaw only in those offenses involving homicide. 383), "The fact that the person actually killed was As in tort law, to be legally responsible for the killed instead of the intended victim is immaterial, injury, death or other harm which constitutes the and the only question is what would have been the crime; the defendant's act must be the proximate degree of guilt if the result intended had actually cause of it. Proximate cause (also called "legally been accomplished. The intent is transferred to responsible cause") is established where the act is the person whose death has been caused." directly connected with the resulting injury, and there are no intervening independent forces (Witkin, California Crimes, Section 78-80). If 4.4 Criminal Negligence there are no other concurrent or contributing causes, normally it is immaterial that the results Negligent conduct in some situations con­ were not reasonably foreseeable. stitutes criminal behavior. In those cases, the negligent conduct is a substitute for criminal Concurrent or Contributing Cause intent. To determine whether or not the negligent In some cases, the defendant is criminally conduct is sufficient to replace criminal intent, the liable for the results of his/her act, even though following rules apply: there is another contributing cause (People v. 1. Negligence is not a substitute for specific Lewis 124 C 551). For example, the accused shoots intent (People v. Becker 94 CA 2d 434). the victim. The victim dies as the results of (Note: specific intent is discussed later in negligent medical treatment. The accused may be this chapter.) guilty of criminal homicide. In this case, the 2. Negligence must amount to a "gross" or accused could reasonable foresee that a victim "culpable" departure from the standard of may receive less than adequate medical treatment. due care. Mere simple negligence is not sufficient (People v. Penny 44 C 2d 861). If the is so disconnected To be criminal, the negligent conduct and unforeseeable, the defendant's act will not be must show an indifference t.o the con­ considered as the proximate cause. For example, sequences, and require knowledge, actual the defendant steals a car of the victim. The or implied, that the conduct tends to victim, then borrows his son's car. The victim is endanger another's life (People v. Peabody killed in a car wreck because of faulty brakes on 46 CA 3d 43). the son's car. In this case, the defendant cannot be 3. Whether or not the negligent conduct is convicted of criminal homicide because the criminal must be determined from the results are so disconnected and unforeseeable. ~onduct itself and not from the resultant 4.6 / Crimes Without Intent harm (People v. Brain 110 CA 3d Supp 1). 4. What obligation or responsibility does the Under many statutes enacted for the defendant have toward proper conduct? protection of the public health and 5. What is the standard of proper conduct safety, e.g. trafficand food and drug expected of an ordinary, reasonable, pru­ regulations, criminal sanctions are dent person under the same conditions? relied upon even if there is no wrongful 6. What standard of conduct was violated? intent. These offenses usually involve

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light penalties and no moral obloquy or omission under threats or menaces sufficient to damage to reputation. Although crimi­ show that they had reasonable cause to and did nal sanctions are relied upon, the pri­ believe their lives would be endangered if they mary purpose of the statutes is refused. regulation rather than punishment or Discussion correction. The offenses are not crimes in the orthodox sense, and wrongful All persons are presumed to have the ability to intent is not required in the interest of commit crimes except those listed above in sec­ enforcement. (People v. Vogel 46 C 2d tion 26 of the code. 798) Children For certain criminal acts, the defendant may The age referred in Section 26 (above) is be punished without proof of any criminal intent. chronological age not mental or moral age. This These offenses normally are public welfare section creates a rebuttable presumption that a offenses and generally deal with sales of food, child under the age of 14 is incapable of commit­ beverages and drugs. The most common of the ting a criminal offense (In re Gladys R. 1 C3d absolute liability crimes are: 855). The "clear proof' standard is the same as 1. illegal sale of liquor. "clear and convincing evidence" (/n re Michael B. 2. Sale of impure or adulterated food. 149 CA 3d 1073). Note: juvenile court has primary 3. Violation of vehicle registration jurisdiction over youths under the age of 18 who requirements. commit criminal offenses. 4. Sale of misbranded merchandise. 5. Violation of sanitary regulations. If appropriate, the juvenile court may refer the 6. Sale of adulterat('.d drugs. case to adult criminal court (W & I Code 707). 7. Sale of illegally subdivided land. The criteria used to determine if the case should 8. Failure to file state income tax return. be referred to adult criminal court are: 1. The degree of criminal sophistication 4.7 Capacity to Commit a Crime exhibited by the minor. 2. Whether the minor can be rehabilitated Penal Code 26 Persons Capable of Committing prior to the expiration of the juvenile Crime court's jurisdiction. All persons are capable of committing crimes 3. The minor's previous delinquent histo.ry. except those belonging to the following classes: 4. Success of previous attempts by the juve­ One - Children under the age of 14, in the nile court to rehabilitate the minor. absence of clear proof that at the time of commit­ 5. The circumstances and gravity of the ting the act charged against them, they knew its offense alleged to have been committed by wrongfulness. the minor. Two-Idiots. Three - Persons who committed the act or Idiots made the omission charged under an ignorance or An idiot is a person who is totally without mistake of fact, which disproves any criminal understanding or mentality. An idiot does not intent. know right from wrong, and therefore does not Four - Persons who committed the act realize the nature of his/her wrongful act. (Note: charged without being conscious thereof. insanity is discussed later in this chapter.) Five - Persons who committed the act or Mistake of Fact made the omission charged through misfortune or by accident, when it appears that there was no evil The mistake referred to under' 'three," above, design, intention, or culpable negligence. is a mistake of fact, not of law. A Six-Persons (unless the crime be punishable (ignorance) is not normally an for commit­ with death) who committed the act or made the ting a criminal act. For example, the accused takes Corpus Delicti and Capacity 35

someone else's coat by mistake. He/she is not CA 2d 166). A criminal act committed while a guilty of larceny (mistake of fact). The accused person is "[;leep walking" (somnambulism) is thinking that the speed limit is 55 mph drives 50 covered by this subdivision. Unconsciousness is a mph in a 40 mph zone. No excuse, since this is not complete defense to the crime. It does not, a mistake of fact. In the latter situation, the however, include mental illness. accused is mistaken as to the legal speed limit, i.e. the law. Ignorance was not a defense in the case The Subdivision does not cover insanity or involving a nurse in charge of a private hospital voluntary intoxication (People v. Taylor 31 CA 2d who thought she had the authority to possess 723). If the voluntary intoxication, over a period narcotics (People v. Marschalk206 CA 2d 346). A oftime, causes permanent brain damage, the issue mistake of law is no excuse even where based on of insanity may be present. (See discussion on advise of an attorney (People v. Flumerjelt 35 CA insanity later in this chapter.) 2d 495). Involuntary intoxication, however, appears to I For specific intent crimes and those crimes be covered by this subdivision. Involuntary intox­ that require a special mental element, normally an ication exists when a person becomes intoxicated "honest" mistake of fact is sufficient if the mis­ by taking a substance or drink without realizing take negates the specific intent or special mental that the substance or drink contains alcohol or element (People v. Navarro 99 CA 2d Supp 1). For drugs. The defendant in People v. Velez (175 CA 3d general intent crimes, in most cases an "honest 785) could not use the defense of unconsciousness and reasonable" mistake of fact is required to as the result of involuntary intoxication based on excuse criminal liability (Re Application oj Ahart the fact that he did not know the marijuana he was 172 C 762). smoking was laced with PCP. The court stated that the defendant's act of smoking the marijuana, an Accident/Misfortune intoxicating substance, prevented him from rais­ If the act causing the injury or harm was ing the unconsciousness defense. committed by accident or misfortune not involv­ ing criminal negligence, the injury or harm is Duress

considered to be Ie an act of God," and the actor is If the defendant committed the criminal act not criminally responsible for the resultant harm. under duress, the duress may be a complete "Public safety" crimes, discussed later in this defense. For duress under Subdivision Six to con­ chapter, are an exception to this general rule. An stitute a defense, there must be: example of an accident would be where an auto­ 1. a reasonable and mobile driver is driving with normal caution and 2. actual belief not speeding when a young child darts out from 3. that a life is in danger or serious bodily between two parked cars. If the driver, without injury is threatened, and being at fault, hits the child, the resulting injury 4. that the danger is present and immediate. would be considered as "an act of God." The (People v. Coleman 53 CA 2d 18) driver would not be criminally at fault for the injury. The following threats of duress are not Unconsciousness sufficient: 1. threats of future harm Subdivision Five refers to persons who would 2. threats to damage reputation or profession otherwise have sufficient capacity but are incapa­ 3. unreasonable beliefs ble of committing criminal acts because of som­ nambulists, or persons suffering with delirium Note: duress is not a defense to a capital crime. In from fever or drugs (People v. Methever 132 C cases involving aggravated assault or battery, if the 326). For example, a person may defend a murder duress is not sufficient to constitute a defense, it accusation based on unconsciousness following a may still reduce the crime to a simple assault or blow to the head by the assailant (People v. Cox 67 battery. 36 Chapter 4

4.8 Mitigating Factors and Other Defenses law-abiding person to commit a criminal offense?" Diminished Capacity Consent of the Victim Proposition 8 (passed June, 1982) abolished the "diminished capacity" defense in California. Consent of the victim is not a defense to This defense was used in the past to negate the criminal prosecution, except in those cases where necessary intent in specific intent crimes. For lack of consent of the victim is an element of the example, in many cases, the accused would enter crime (Witkin, California Crimes, 163). Listed evidence to establish that he or she was too intoxi­ below are some of the common situations involv­ cated to form the necessary intent to commit ing the question of consent: murder in the first degree. Presently, evidence of 1. Assault and battery - Consent is not a diminished capacity may be considered by the defense to assault and battery. It is a con­ court only at the time of sentencing or other sent to ordinary physical contact involved disposition or commitment of the defendant in sporting events. (penal Code 25). As discussed below, evidence of 2. Rape-In most cases, sexual intercourse may be used to establish that the is not rape if the victim consents. Note: the defendant is not guilty by reason of insanity. victim must be legally capable of giving consent. This aspect is discussed in Chap­ ter 10. The purpose of the entrapment defense is to 3. Theft and Robbery - Valid consent to prevent the government from "manufacturing" taking of the property is a defense to theft crime (Loewy, Criminal Law 2d ed., page 187). and robbery crimes. Note: failure to take Therefore, the defense of entrapment is available action to prevent the taking of the property only in those cases where the crime was notcon­ (passive conduct) is not considered as templated by the defendant, but was actually consent. planned and instigated by the police (People v. 4. To constitute consent on the part of the Benford 53 C 2d 1). The entrapment defense does victim, the consent must be freely and not prevent the police from setting a trap for the voluntarily given and not under the influ­ unwary criminal (Sherman v. U.S. 356 US 369). ence of fraud, threats, force or duress. The police may provide a person who is pre­ disposed to commit a crime with the opportunity 4.9 Insanity to commit the crime. For example, it is not Penal Code 25 (b) entrapment to set up a drug buy ffOm a person who In any criminal proceeding, including any is predisposed to sell drugs. Note: the entrapment juvenile court proceedings, in which a plea of not defense is aimed at governmental misconduct. guilty by reason of insanity is entered, this Thus, the entrapment defense is not available if defense shall be found by the only the entrapment is accomplished by a private per­ when the accused person proves by a prepon­ son not associated with the government (People v. derance of the evidence that he or she was incapa­ Wirth 186 CA 2d 68). ble of knowing or understanding the nature and The one test for entrapment is the "inno­ quality of his or her act and of distinguishing right cence" test (People v. Benford 53 C 2d 1). Was the from wrong at the time of the commission of the crime the result of "creative activity" by the offense. police or did the police merely offer an oppor­ Discussion tunity for a willing criminal to commit a criminal offense? The test currently being used in state The doctrine of partial insanity is not recogn­ cases is set forth in People v. Barranza (23 C 3rd ized in California (People v. Troche 206 C 35). 675). The test is: "Was the conduct of the law Insanity is either a complete defense or no defense enforcement agent likely to induce a normally at all. There is no middle ground in California Corpus Delicti and Capacity 37

criminal law (People v. Perry 195 C 623). Prior to (p C 190.1). First, the question of the accused's 1978, California used the M'Naghten Test as the guilt shall be determined. At the same time, the test for insanity. [M'Naghten Test is that a person truth of the alleged special circumstances shall be is insane if, when the offense was committed, the determined. If the defendant is found guilty of person was laboring under such a mental disease first degree murder and one or more of the special or defect that he or she did not know the nature and circumstances, further proceedings are held on quality of the act, or, if accused did know it, the the question of the penalty to be imposed. accused did not know that what he or she was doing was wrong.] In 1978, the California At the additional proceedings, evidence may Supreme Court in People v. Drew (22 C 3d 333) be presented by both the prosecution and the adopted the American Law Institute Test as the defense as to any matter relevant to aggravation, standard for California. Proposition 8 (June, mitigation, and sentence including, but not lim­ 1982), however, reinstated the M'Naghten Test ited to, the nature and circumstances of the pres­ (People v. Horn 158 CA 3d 1014). Note: the ent offense, any prior felony conviction or M'Naghten Test is also referred to as the right convictions, and the defendant's character and from wrong test. background (P C 190.3). No evidence, however, shall be admissible regarding other criminal The leading case in California on insanity is activity of the accused which does not involve the People v. Skinner (39 C 3d 765). In that case, the use or attempted use of force or violence or the court held that if the mental illness is manifested express or implied threat to use force or violence. in delusions which render the individual incapable either of knowing the nature and character of his The purpose of the special proceedings is to act, or of understanding that it is wrong, in moral determine whether the penalty shall be death or rather than legal sense, he is legally insane. confinement in state prison for life without the In Califomia state trials, the issue of insanity possibility of parole. After hearing the evidence at must be specially plead. This is accomplished by the special proceedings, the jury must weigh the pleading "not guilty by reason of insanity. " Note: evidence and determine if the mitigating circum­ to raise the issue of not guilty of the crime and the stances outweigh the aggravating circumstances. issue of insanity, the accused must plead both "not If so, life imprisonment shall be imposed (P C guilty" and "not gUilty by reason of insanity." The 190.3). law presumes that an individual is sane, and the Special Circumstances burden of proof to establish the by a preponderance of evidence is on the accused The special circumstances that must be (People v. Loomis 170 C. 347). The hearing on the alleged and established before the accused is issue of insanity will be conducted after a finding subject to are set forth in that the accused committed the offense. Section 190.2 of the Penal Code and include: Temporary Insanity 1. Intentional murder, carried out for fman­ cial gain. Temporary insanity existing at the time of the 2. Previous conviction of murder in the first act may be sufficient to meet the legal test of or second degree. insanity (People v. Donegan 32 CA2d 716). If the 3. Conviction of multiple in the defendant is insane at the time that the act was present proceedings. committed, it is immaterial that the insanity lasted 4. Murder committed by means of a several months or merely a number of hours destructive device, bomb, or explosive (People v. McCarthy 110 CA 3d 296). planted, hidden or concealed in any place where the defendant knew or should have 4.10 Capital Crimes known that the act would create a great In cases in which the death penally may be risk of death to person or persons. imposed, the trial must be tried in separate phases 5. Murder committed to prevent arrest or in 38 Chapter 4

an attempted or completed escape from import a wish to vex, annoy, or injure another lawful custody. person, or an intent to do a wrongful act, estab­ 6. Murder committed by mail bomb. lished either by proof or presumption of law. 7. Victim was a fireman, peace officer, or Discussion federal engaged in official duties or in retaliation for the Malice as used in the above statute has a perfonnance of official duties. different meaning from the general usage defini­ 8. Victim was a witness and killed to pre­ tion. Malice under the Penal Code, Section 7(4) vent his or her testimony in any criminal can be classified as "malice in fact" and "malice proceedings. in law." Malice in fact (or ), similar 9. Victim was a prosecutor, assistant pros­ to the general usage definition, is referred to in the ecutor, fonner prosecutor, or judge and first part of the statute by the words "import a the murder was carried out in retaliation wish to vex, annoy, or injure another person." for or to prevent the perfonnance of Malice in law is set forth by the words "an intent official duties. to do a wrongful act." 10. The murder was especially heinous, atro­ Malice in law may exist in addition to or cious or cruel. independent of malice in fact. Malice in fact has 11. Murder was intentionally committed by been described as the intentional doing of a lying in wait. wrongful act without just reason or excuse for the 12. Victim was killed because of his or her conduct (Davis v. Hearst 160 C 143). race, color, religion, nationality or coun­ try of origin. There is a third type of malice referred to in 13. Murder was committed during or the Penal Code, ,. ." The defi­ attempting one of the below listed nition of it is contained in Penal Code 188, imme­ crimes: diately after the crime of murder. It has no general a. robbery in violation of Section 211 application, and is limited only to those crimes b. kidnaping in violation of Section 207 which has •'malice aforethought" as an element of or 209 the crime. Malice aforethought is discussed in c. rape in violation of Section 261 Chapter 9 which covers homicide. d. sodomy in violation of Section 286 e. burglary in the first or second degree 4.12 Motive in violation of Section 460 Motive is the cause or reason that an act is f. perfonnance oflewd or lascivious acts committed (People v. Lane 100 C 379). It is the on a child under the age of 14 in violation moving cause or the ulterior purpose of the of Section 288 offender (People v. Durrant 116 C 179). Except for g. oral copulation in violation of Section crimes involving "heat of passion" or "sudden 288a and sufficient ," motive is not nor­ h. arson in violation of Section 447 mally an element of the crime and need not be i. train wrecking in violation of Section proved by the prosecution (People v. Woo 181 C 219 315). Often evidence of motive is used to establish 14. Victim was intentionally killed by tor­ or rebut malice when malice is an element of the ture. (This section requires proof of the crime. infliction of extreme physical pain no matter how long its duration.) There is a difference between motive and 15. Murder by poison. intention. Intention to commit a crime may exist with or without a motive for doing it. In most 4.11 Malice cases, motive precedes intent. The classical Penal Code 7 (4) example of the difference between motive and The words "malice" and "maliciously" intent is when A kills B to get B's money. A'sintent Corpus Delicti and Capacity 39 was to commit murder. A's motive was to get the criminal intent to commit the crime of burglary money. because of voluntary intoxication. In tlns situa­ tion, the accused is not entering evidence to 4.13 Intoxication negate the capacity to commit the crime, but to Penal Code 22 Voluntary Intoxication establish that the crime was not committed. Note: (a) No act committed by a person while in a voluntary intoxication is not a defense to, nor legal state of voluntary intoxication is less criminal by excuse for, general intent crimes. reason of his having been in such condition. Evi­ dence of voluntary intoxication shall not be admit­ 4.14 Parties to a Crime ted to negate the capacity to form any mental Penal Code 30 Classification states for the crimes charged, including, but not The parties to crimes are classified as: limited to, purpose, intent, knowledge, pre­ 1. Principals and meditation, deliberation or malice aforethought, 2. Accessories. with which the accused committed the act. (b) Evidence of voluntary intoxication is Penal Code 31 Principals admissible solely on the issue of whether or not All persons concerned in the commission of a the defendant actually formed a required specific crime, whether it be felony or misdemeanor, and intent, premeditated, deliberated, or harbored whether they directly commit the act constituting malice aforethought, when a specific intent crime the offense, or aid and abet in its commission, or is charged. not being present, have advised and encouraged (c) Voluntary intoxication includes the volun­ its commission; and all persons counseling, advis­ tary ingestion, injection, or taking by any other ing or encouraging children under the age of means of any intoxicating liquor, drug, or other fourteen, lunatics or idiots, to commit any crime, substance. or who, by fraud, contrivance or force, occasion the drunkenness of another for the purpose of Discussion causing him to commit any crime, G t who, by In most cases, voluntary intoxication is not a threats, menaces, command or , compel defense to or an excuse for criminal conduct. An another to commit any crime, are plincipals in any exception to the above general rule is where the crime so committed. voluntary intoxication causes insanity. Insanity Penal Code 32 Accessories even though caused by voluntary intoxication is a Every person who, after a felony had been defense (People v. Kelly 10 C 3d 565). committed, harbors, conceals or aids a principal Evidt"l1ce of voluntary intoxication may not be iII such felony, with the intent that said principal admitted to negate the capacity to form the crimi­ may avoid or escape from arrest, trial, conviction nal intent regarding: or pUIDshment, having knowledge that said princi­ 1. knowledge pal has committed such felony or has been charged 2. premedication with such felony or convicted thereof, is an 3. deliberation to such felony. 4. purpose, Discussion 5. intent, and 6. malice aforethought. In California, there are only two parties to a crime; principals and accessories. The common Specific Intent Crimes law classifications of ' 'accessory before the fact" With crimes involving specific intent, evi­ and "principal" are merged into "principals" and dence that the accused was too intoxicated and the common law classification of "accessory after therefore did not form the required specific intent the fact" is an accessory. To be a principal, one is admissible to establish that the crime was not must be involved in either the planrung or com­ committed. For example, an accused may estab­ mission of the offense. Unlike common law, a lish that he or she did not have the necessary principal does not need to be present at the scene ------.______... ____ i ....

40 Chapter 4

of the crime. All principals are equally guilty and 4.15 Attempts thus, are subject to the same punishment. An attempt to commit a crime is also a crime An accessory is one who after a felony has (p C 664). A person may be convicted of an been committed harbors, conceals or aids the attempt to commit a crime, although it appears by principal to evade punishment or detection. The the evidence that the crime intended or attempted punishment for an accessory can include was actually completed (p C 663). The elements of imprisonment in a state prison or a county jail. an attempt are: PIincipal 1. A specific intent to commit a particular crime. (Note: even if the attempted crime To be a principal one must either: is a general intent crime, the accused must 1. commit the crime, have the specific intent to commit that 2. aid in the commission of the crime, particular crime, i.e. "specific intent" 3. advise or encourage another to commit the (People v. Rupp 41 C 2d 527). crime, 2. A direct but unsuccessful act toward com­ 4. command, threaten, or force another to pletion of the intended crime. To be an commit a crime, attempt, the act or acts committed must go 5. get another person drunk so that person further than mere preparation (People v. will commit a crime. Werner 16 C 2d 216). Accessory 3. An apparent ability to commit the To be guilty as an accessory: intended crime. 1. a felony must have been committed; 4. The crime must be legally possible to 2. must have aided, concealed or harbored commit. the principal; and In some cases, a person may in an unsuccess­ 3. must have intent that the principal avoid or ful attempt to commit one crime, commit another escape arrest, prosecution or punishment. crime. In this case, he or she may be punished for Assume that A, B, and C rob a bank. C takes the attempt to commit the intended crime or the part in the planning of the robbery and plans to other crime (p C 665). For example, a husband receive a portion of the loot. C is not present at the attempts to kill his wife. He actually kills someone scene of the crime. A and B actually go into the else. He can be prosecuted for of bank and commit the robbery. After the robbery, the wife and murder of the other person. D hides A, B, and C. D did not know prior to the Beyond Preparation robbery that one was being planned. In this exam­ ple, A, B, and C are all principles. (Note: at As noted earlier, to constitute an attempt there common law, since C was not present at the scene must be a direct act or acts committed leading up of the crime, he would be an assessory before the to the intended crime. Mere preparation for com­ fact.) D, not taking part in the robbery nor the mitting the intended crime is not sufficient to planning for it, is an assessory. constitute an attempt. A difficult question to answer in many cases is whether or not the act or acts committed goes beyond mere preparation and An accomplice is one who is liable to prosecu­ thus constitute an attempt. The act or acts are tion for the identical offense charged against the sufficient to constitute an attempt if the overt act defendant on trial in the cause in which the or acts reach far enough toward the accomplish­ testimony of the accomplice is given. Penal Code, ment of the intended offense to amount to the Section 1111, provides that one may not be con­ commencement of its consummation (People v. victed upon the testimony of an accomplice unless Lanzit 70 CA 498). there is other corroborating evidence which con­ nect the defendant with the commission of the Th~~ below listed acts were held sufficient to offense. constitute an attempt: Corpus Delicti and Capacity 41

1. Intending to kill his wife, the accused victim, of by a third person." (People v. Siu 126 allowed his accomplice to enter the house CA 2d 41) for the purposes of choking her (People v. Parrish 87 CA 2d 853). 4.16 Conspiracy 2. The defendant planning to commit a bur­ Penal Code 182 Conspiracy Defined glary was found outside of a bedroom with If two or more persons conspire: hands upraised to a bedroom window 1. To commit any crime. v. 94 CA 2d 468). (People Gibson 2. Falsely and maliciously to indict another 3. Defendant intending to bomb a railroad for any crime, or to procure another to be track, noticed officers observing him charged or arrested for any crime. while he was a block away from the track, 3. Falsely to move or maintain any suit, and fled (People v. Davis 24 CA 2d 408). action or proceeding. 4" Defendant was found crouched outside a 4. To cheat and defraud any person of any public telephone booth with lock picks and property, by any means which are in them­ his car equipped with coin box burglary selves criminal, or to obtain money or tools (People v. Charles 218 CA 2d 812). property by or by false The fact of purchasing a gun is only prepara­ promises with fraudulent intent not to per­ tion and not a direct act toward robbery, i.e:. no form such promises. attempt. A similar holding resulted in a Icase 5. To commit any act injurious to the public where the- defendant, several days before the health, to public morals, or to pervert or planned rol)bery drove by the bank in question to obstruct justice, or the due administration look it over. of the laws. 6. To commit any crime against the person of Once a direct act leading toward the commis­ the President or Vice President of the sion of the intended offense is completed, the United States, the governor of any state or crime of attempt is completed, and a later aban­ territory, any United States justice or donment of the plan to commit the intended judge, or the secretary of any of the execu­ offense is not a d(~fense for the attempt. tive departments of the United States. There can be no attempt if it is legally imposs­ [The last portion of this section on punish­ ment is omitted.] ible to commit the intended offense. For example, the accused tries to kill a person who is already Definition dead. No attempt; it is legally impossible to kill a Conspiracy is an agreement by two or more dead person. The fact that other conditions make persons to commit any crime, and one of them the crime impossible to complete is not normally a does an overt act in furtherance of the conspiracy. defense. For example, the accused, intending to steal money from a person, reaches into the vic­ Elements of Conspiracy tim's pocket and finds it empty. The accused may The basic elements of the crime of conspiracy be convicted of an attlempt to steal. are: The test regarding the possibility of comple­ 1. Two or more persons tion of the intended crime is: 2. Agreement to commit a crime 3. An overt act in furtherance of the "If there is an apparent ability to commit the agreement. crime in the way attempted, the attempt is indict­ Discussion able, although, unknown to the person making the attempt, the crime cannot be committed, because For conspiracy to be a crime, it is not neces­ the means employed are unsuitable or because of sary that the conspired crime be completed or extrinsic facts, such as the nonexistence of some even attempted. The overt act required must go essential object, or an obstruction by the intended beyond the agreement or planning stage. The act ------~r'------______------

42 Chapter 4

must be more than planning, but need not amount 2. Must remain away from the scene of the to an attempt. The act, however, must be in crime at time of crime. furtherance of the conspiracy and must take place 3. Must communicate abandonment to all within California. The overt act may be a lawful known confederates prior to the commis­ aetas long as it is in further.anceof the conspiracy sion of intended offense. (People v. Jones 228 CA 2d 74 ,and People v. Smith 63 C 2d 779). As a practical maLter to prove an abandon­ ment, the accused should have communicated to Conspiracy is a specific intent crime, since it authorities information regarding the conspiracy. must be established ·that the accused entered into (While communication to proper authorities is not the agreement with the intent to do an unlawful act required, it is almost impossible to prove aban­ or do a lawful act by unlawful means (People v. donment without the communication.) Jones 228 CA 2d 74). All persons involved in the conspiracy are equally responsible for the actions 4.17 Solicitation ,of all other parties taken in furtherance ,of the ~onspiracy. It includes crimes C.ommitted in prep­ In California under Section 653f of the Penal aration for, during, commission of, .andduring Code; it is a crime to solicit another person to es~ape and arrest. This liability ,does not, .commit bribery, murder, robbery, burglary, felony however, include independent and unrelated theft, arson, receiving stolen property, forcible cri.mes. Crimes committed prior to entry by the rape, extortion, perjury, forgery, kidnapping, fel­ accused into the conspiracy ,also, ,are not charged ony assault, sodomy by force and oral copulation against him or her. by force. Other sections of the code prohibit the solicitation for prostitution, lewd acts, etc. (P C Conspiracy requires the .agreement of two or 647(a), (b), and (d). more per-sons. At least two of the persons must be legally capable of committing a crime. Accord­ The elements of the crime of solicitation are: ingly, if owy two people are involved and one is an 1. act of solicitation idiot, then no conspiracy. The two required per­ 2. with the specific intent to induce the com­ sons may be husband and wife. If one ofthe two IS mission of the offense. an undercover police officer who enters into the agre.ementas part ·of his or her official duties, No overt act or agreement by the person there is no conspiracy. This is based on the con.­ solicitated is required. The crime is completed cept that the ,undercover police officer did not in with the solicitation. In most cases, conviction fact agree to commit a .crime, ·therefore no agree­ requires testimony of two witnesses or one wit­ ment. Note: if there are two otherwise qualified ness and other corroborating evidence. persons ,who agree to commit a crime in addition Solicitation is a lessor and included offense of to the undercover police officer, then.a conspiracy conspiracy. To constitute the crime of conspiracy may exis.ts. there must be an agreement and an act committed Itisnotnecessary that all members agree with in furtherance of agreement; however, to con­ all other members ·of the conspiracy, only that stitute solicitation, all that is required is the solic­ each must know of .the agreement and must make itation to commit the offense (People v. Bottger .an .agreement with at least one other member of 142 CA 3d 974) . the conspiracy. 4.18 Persons Liable to Punishment Prior to the commission of the conspired offense, one may withdraw, and the withdrawal Penal Code 27 Persons Liable to Punishment will avoid criminal liability if the below require­ (a) The following persons are liable to punish­ mentsare present: merit under the laws of this state: L A complete withdrawal from all aspects of 1. All persons who commit, in whole or in the conspiracy. part, any crime within this state; Corpus Delicti and Capacity 43

2. All who commit any offense without this 2. There must be a unity in time between the act state which,. if committed within this state, and the intent to constitute a crime. would be larceny, robbery, or embezzle­ 3. Criminal acts must be affirmative and volun­ ment under the laws of this state, and bring taryacts. the property stolen or embezzled, or any 4. Negligence can be a substitute for specific part of it, or are found with it, or any part intent. of it, within this state; S. Proximate cause is necessary to a successful 3. All who, being without this state, cause or prosecution of all crimes. aid, advise or encourage, another person 6. Criminal intent may not be manifested by the to commit a crime within this state, and circumstances surrounding the act. are afterwards found therein. 7. Certain persons are incapable of some crimes (b) Perjury, in violation of Section 118, is because of the lack of requisite mental state. punishable also when committed outside of Cal­ 8. Children under the age of 14 may never be ifornia to the extent provided in Section 118. punished for committing a criminal offense. 9. All persons are presumed to have the ability CLASSROOM DISCUSSION QUESTIONS to commit crimes. 1. Discuss the role of proximate cause in crimi­ 10. An idiot is a person who is almost totally nal cases. without understanding or mentality. 2. Explain the differences between general and 11. A mistake of law is an excuse for criminal specific intent crimes. conduct. 3. Explain the doctrine of transferred intent. 12. California has abolished the defense of 4. What is the rationale for punishing "strict diminished capacity. liability" crimes? 13. Consent of the victim is a defense in most 5. Why is a "mistake of law" not a defense to criminal cases. most criminal conduct? 14. Temporary insanity is not a defense to·crimi­ 6. Explain the present test for insanity in nal conduct in California. California. 15. Special circumstances must be alleged and 7 What is the "corpus delicti" of a crime? proven before an accused may be sentenced 8. Explain the requirement for a unity of the act to death. and intent. 16. Malice means only an "ill-will.'" 9. Under what circumstances will a peI'son be 17. Motive and malice are the same. guilty of a crime as a passive participatant? 18. Voluntary intoxication is a defense to certain 10. What is the purpose of the "transferred crimes in Califomia. intent" doctrine? 19. In California, all parties to a crime are either principals or accessories. SELF STUDY QUIZ 20. To constitute an attempt, there must be a TruelFalse direct act toward the completion of the 1. Corpus delicti refers only to homicide Cases. attempted offense. Chapter 5 Theft The thief is sorry that he is to be hanged, but not that he is a thief (Thomas Fuller, 1732)

Theft Related Crimes Penal Code 484 Acts Constituting Theft 1. Theft by Larceny (p C 484) (a) Every person who shall feloniously steal, 2. Grand Theft (p C 487) take, carry, lead, or drive away with the personal 3. Petty Theft (P C 488) property of another, or who shall fraudulently 4. Theft by False Pretense or Fraud (P C appropriate property which has been entrusted to 532) him, or who shall knowingly and designedly, by 5. Theft by Trick or Device (P C 332, and any false or fraudulent representation or pretense, 484) defraud any other person of money, labor or real, 6. Theft by Credit Card (p C 484d, e, and f) ; or personal property, or who causes or procures 7. Defrauding Proprietors of Hotels, Inns, others to report falsely of his wealth or mercantile etc. (P C 537) character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or 8. Theft of Utility Services (p C 498a) obtains possession of money, or property or 9. Theft of Trade Secrets (p C 499c) obtains the labor or service of another, is guilty of 10. Theft by Embezzlement (p C 484 and , theft. In determining the value of the property 503) obtained, for the purposes of this section, the 11. Vehicle Theft (p C 499b and V C 10581) reasonable and fair market value shall be the test, 12. Diversion of Construction Funds (p C and in determining the value of the services 484b) received the price shall be the test. If 13. Receiving Stolen Property (p C 496) there be no contract price, the reasonable and 14. Receiving Property Stolen in Another going wage for the service rendered shall govern. State (p C 497) For the purposes of this section, any false or 15. Alteration of Serial Numbers (p.e. 537e) fraudulent representation or pretense made shall 5.1 Statutory Theft be treated as continuing, so as to cover any money, property or service received as a result thereof, Penal Code 490a Larceny, Embezzlement or and the complaint, information or indictment may Stealing Renamed charge that the crime was committed on any date "Theft" during the particular period in question. The Wherever any law or statute of this state refers hiring of any additional employee or employees to or mentions larceny, embezzlement, or steal­ without advising them of every labor claim due ing, said law or statute shall hereinafter be read and unpaid, and every judgment that the employer and interpreted as if the word "theft" was sub­ has been unable to meet shall be prima facie stituted therefore. evidence of intent to defraud.

45 46 Chapter 5

Discussion Clara L. Rev. 367). It, also, must have some value The present California theft statutes have and be subject to ownership (People v. Quiel 68 merged the common law crimes of larceny, CA 2d 674). embezzlement and obtaining property by false Real property was not subject to common law pretenses into the crime of theft (Witkin, Califor­ larceny since there could be no taking and carry­ nia Crimes 341 and People v. Otterman 154 CA 2d ing away (People v. Folcey 78 CA 62). If a sub­ 193). Larceny consisted of the unlawful taking of stance is severed from real property, it then property. Embezzlement consisted of the taking of becomes personal property and is subject to the property that had been previously entrusted to the theft statutes. For example, gravel on the ground is individual taking the property (Peoplev.Ailanjian a part of the real and is not subject to theft 114 CA 260). Obtaining property by false pre­ by larceny until it is severed from the ground. If an tenses consisted of using false pretenses or trick to individual, however, severs the gravel from the get possession of the property. ground by loading it into a truck, then the prop­ In merging the offenses into the crime of erty changes its nature from real to personal theft, California eliminated the fine distinctions property. Accordingly, the individual is subject to and technical niceties which fornlerly existed the theft statutes when he takes possession of the between the common law crimes (Clark and Mar­ gravel and transports it. A similar situation would shall, Crimes 764 and People v. Carter 131 CA exist had the individual picked fruit from trees 177). The consolidation of the common law belonging to others. Real property can be the offenses in P C 484 did not create new crimes subject of theft by false pretenses or or enlarge the scope of the old crimes (People v. embezzlement. Kassab 219 CA 2d 687). Definition of "personal property" under the Common Law Theft Defmed theft statutes is very broad. A list of subscribers to Common law theft consists of the taking and a telephone service has been considered by one carrying away the property of another person, court as personal property and thus subject to the without the consent of the owner, with the specific theft statute. Utility services are considered as intent to pennanently deprive th.e owner of the use personal property and, therefore, subject to the and benefit of the property (People v. Pace 2 CA theft statutes. It also includes written instruments 2d 464). such as checks and stocks. Elements of Theft Property that is unlawful to possess may still be the subject of a theft. For example, a thief could The elements of theft are: be convicted of stealing marijuana from a drug 1. the taking possession and carrying away of dealer. property, 2. property that belongs to another, Asportation 3. without the consent of the owner or the person with the right of possession, and To complete the crime of theft, the individual 4. with the specific intent to pennanently must take poss.ession of the property and carry it deprive. away (People v. Meyer 75 C 383). The tenn "asportation" is used to describe the act of taking Discussion possession and carrying away of property (People Distinctions still exist between the various v Edwards 72 CA 102). A thief who attempts to types of theft crimes (See 5 Cal. L. Rev. 73). remove an overcoat from a store dummy was not Except for cases involving theft by false pretense convicted of lheft becarJ.!ie >he overcoat was and embezzlement, the Pro2erty must be personal chained to the dummy (Peopie v. Meyer 75 C 383). property. To be considered as personal property, The court held that there was no taking possession the property must not be real property Oand or and carrying away of the property. He was, substances attached to the land) (See: 25 Santa however, guilty of attempted theft. Theft 47

A person who takes property and hides it in a of the victim in obtaining the property cannot be box containing other products has sufficiently used by the thief to erase the crime. taken possession and carried away the property even if the property is not removed from the Without the Consent of the Owner premises. At common law, to be larceny the property It is not necessary that the taking be from the must be taken without the consent of the owner or immediate physical presence of the owner or the person with the right of possession of the possessor. It is assumed that the property is in property. The taking must have been against the possession of the person who has a right to pos­ will of the owner or possessor (People v Re sess it. It is grand theft, however, if the property is Estrada 63 C 2d 740). Under the present theft taken from the physical presence of the person. statutes, the taking may be: a. against the will, Once the individual takes possession, the b. by trick or fraud, or slightest movement is sufficient to establish the c. by converting property that has been carrying away requirement. A thief takes a purse entrusted to a person. from an automobile and then immediately drops it beside the car when he sees the owner The taking against the will is the common law approaching the car. He can be convicted of theft. crime oflarceny. The taking by trick or fraud is The fact that the property was quickly abandoned the common law crime of theft by false pretense. in an attempt to prevent detection is immaterial. In the common law crime of embezzlement the "taking without the consent of the owner" is the Once possession and carrying away has converting of property that has been entrusted to a occurred, the crime is complete. The fact that the person. A classic example of embezzlement is property is returned to its original position before where the cashier of a store lawfully takes money the owner notices that it is missing does not erase from customers, but instead of depositing the the fact that a theft has occurred. money, he wrongly keeps it for his own use. Property that Belongs to Another Except for those cases involving embezzle­ A person cannot be convicted of stealing his ment, theft by trick or device and theft by false own property unless someone else has a greater pretense, to constitute theft the taking and carry­ right of possession (People v. Cleary 1 CA50). The ing away of the property must be without the victim of the crime need not be the owner, as long consent of the owner or possessor. If a person has a as the victim has a right of possession of the suspicion that someone is planning to steal his property. For most purposes, "ownership" and property, the person is under no duty to take steps "right of possession" are treated as the same to prevent the crime. This non- action is not under this requirement (People v. Brunwin 2 CA considered as consent to the taking and carrying 2d 287). The actual status of ownership of the away. The setting of a trap and thereby providing property is immaterial to the thief. Theft is actu­ an opportunity for a thief to steal property is also ally a crime against possession rather than owner­ not considered as consent. ship (People v. Beach 62 CA 2d 803). With the Specific Intent to Pennanently Deprive "Thief One" steals a car and drives it for two weeks. Then, "Thief Two" steals the car from Except as noted below, theft requires that the "One". In this case, "Two" can be convicted of taking be with the specific intent to pennanently stealing from "One" on the theory that the first deprive the owner of the property, money, etc. thiefhas a greater right of possession. (When two (People v. Kunkin 9 C 3d 245). claims to the right of possession are equal, the Specific Intent first in time prevails.) ''Two'' cannot successfully defend on the theory that "One" does not own the Theft is a specific intent crime. The person property. The general rule is that the unlawful acts taking the property must know that his taking of 48 ChapterS

the property was wrong. Accordingly. if one mis­ the intention of depriving him of it permanently is takenly takes the property. he or she has not not a violation of the theft statutes. It may be a committed a theft crime. violation of another code section. If a person takes another person's property Value believing that he or she has a legal right to take the Before an item is subject to the theft statutes. property, he is not guilty of theft. For example, it must have some value. The value may only be mistakenly taking another person's book does not slight. Intrinsic value is considered sufficient to constitute theft. support a theft charge (People v. Franco 4 CA 3d Pennanently Deprive 535). The crime of theft requires the specific intent Rental or Lease Fraud to pennanently deprive the owner or possessor of P C 484 (b). (c), (d), and (e) the property. Accordingly, one who takes (b) Except as provided in Section 10855 of the another's property with the intent to use it only Vehicle Code, intent to commit theft by fraud is temporarily is not guilty of theft. Unauthorized presumed if one who has leased or rented the borrowing may be another crime, but it is not personal property of another pursuant to a written stealing. Embezzlement, thefts by false pretenses, contract fails to return the personal property to its and vehicle thefts are exceptions to the require­ owner within 20 days after the owner has made ment of' 'the intent to pennanently deprive. " With written demand by certified or registered mail embezzlement crimes, thefts by false pretenses. following the expiration of the lease or rental and vehicle thefts; as discussed later, the Legisla­ agreement for return of the property so leased or ture has eliminated "the intent to pennanently rented. [Note: Section 10855 of the Vehicle Code, deprive" requirement. listed as an exception to this subdivision, provides The intent to pennanently deprive is nonnally that failure to return a rented or leased vehicle established by proof of the circumstances that the within five days after the agreement expires raises taker acted with the intention to convert the prop­ the presumption that the vehicle was embezzled.] erty to his or her own use. For example, picking up (c) Notwithstanding the provisions ofsubdivi­ the personal property of another and walking sion (b), if one presents with criminal intent iden­ away would create a presumption that the taker of tification which bears a false or fictitious name or the property intended to steal it. address for the purpose of obtaining the lease or rental of the personal property of another, the Joe goes into the local grocery store, picks up presumption created herein shall apply upon the a package of gum and puts it in his pocket. He failure of the lessee to return the rental agreement leaves the store without paying for the gum. Joe is and no written demand for the return of the leased arrested for theft. He claims that he forgot to pay or rented property shall be required. for the gum. If he did in fact forget, then he has not (d) The presumptions created by subdivisions committed the crime of theft. To establish his (b) and (0) are presumptions affecting the burden guilt, the prosecution would only be required to of producing evidence. prove that Joe put the gum in his pocket and (e) Within 30 days after the lease or rental walked out without paying for it. It would be up to agreement has expired, the owner shall make a Joe to establish that the failure to pay was a written demand for return of the property so mistake. leased or rented. Notice addressed and mailed to The intent' 'to take the property" must exist at the lessee or renter at the address given at the time the time of the taking. There is no requirement of the making of the lease or rental agreement and that the taking be for gain. All that is needed is the to any other known address shall constitute proper specific intent to deprive the owner or possessor demand. Where the owner fails to make such of his property permanently. Taking of a typewri­ written demand the presumption created by sub­ ter without the consent of the owner, but without division (b) shall not apply. Theft 49

Discussion ed of such subsequent offense is punishable by imprisonment in the county jail not exceeding Rental or lease fraud presumptions set forth in PC 484 (b), (c), (d), and (e) are designed to reduce one year, or in the state prison. some of the problems encountered when trying to Definition establish in court fraudulent intent. The subdivi­ Petty theft is defmed in PC 488 as those thefts sions provide that when a person leases personal which are not classified as grand theft. Except as property from another by a written contract, the noted in P C 666, petty thl~ft is punishable by fine failUI'e to return the property within 20 days after or by imprisonment in the county jail. the owner has made a written demand by certified or registered mail following the expiration of the S.3 Grand Theft lease or rental agreement gives rise to a presump­ tion that the property was taken with the intent to Grand theft is difficult to defme because of commit theft by fraud. Note: to take advantage of the many considerations and conditions under this presumption, there must be a proper written which theft is classified as "grand theft." The demand for its return. If the owner fails to make definition of grand theft is set forth in PC 487. proper demand, the presumption does not apply The punishment for grand theft is imprisonment (p C 484 (e». in the county jail or in the state prison (wobbler) and/or a fine. Grand theft is theft committed under Penal Code 485 Lost Property any of the following circumstances: 1. If the property taken is of a value exceed­ One who finds lost property under circum­ ing $400.00. stances which gives him knowledge of or means 2. If the value of the property taken exceeds of inquiry as to the true owner, and who appro­ $100.00 and the property is domestic priates such property to his own use, or to the fowls, avocados, citrus fruit, deciduous use of another person not entitled thereto, fruit, nuts, articokes, olives, substance without first making a reasonable and just effort severed from real estate, other fruits and to find the owner is guilty of theft. other farm crops, aquacultural products, Classification and Punishment fish, shellfish, kelp, and crustaceans. 3. If the property or money is taken by an Theft crimes are classified and punished as employee from an employer and the value either petty theft or grand theft. Petty theft is a equals $400.00 or more in any 12 con­ misdemeanor (PC 488) and grand theft is a secutive months. felony (PC 487). 4. When the property is taken from the body of a person or in a container being carried 5.2 Petty Theft by the person. S. When the pmperty is (are) a horse, mare, Penal C.ode 488 Petty Theft gelding, cattle, goats, sheep, mules, lambs, pigs, or hogs. 6. Gold dust, mining claims, quicksilver, Theft in other cases [not grand theft] is petty theft. etc. 7. Theft of dogs for research, sale or other PenalCode 666 Conviction of Crime After commercial use. Serving Term for theft .... 8. Theft of firearms. Every person who, having been convicted of 9. Theft of an automobile (Grand Theft petit theft, grand theft, auto theft under Section Auto). 10851 of the Vehicle Code, burglary, robbery, felony receiving stoil'!n propery, or a felony violation of section 496 and having served a term therefore in a penal institution or having been imprisoned thereirt .. , is subsequently convicted of petit theft, then the person convict- 50 Chapter 5

Value Used debt or right of action, the sum due upon it or secured to be paid by it must be taken as its value; To determine the value of the property for the if the embezzlement or defalcation is of the public purposes of establishing grand theft, the reason­ funds of the United States, or of this state, or of able and fair market value at the time that the any county or municipality within this state, the item is stolen is used. It the item is stolen from a offense is a felony, and is punishable by imprison­ retail store, then the retail price is used. If services ment in the state prison; and the person so con­ are stolen, the reasonable and going wage for victed is ineligible thereafter to any office of those services is used. The value used is the honor, trust, or profit in this state. general market value of the property, not any special value it may have to the victim (People v. 5.5 Theft by Larceny Lizarraga 122 CA 2d 436 and People v. Brown 138 Larceny is the wrongful taking and carrying CA 3d 832). away of personal property belonging to another The defendant stole jewelry from a store. The with the intent to permanently deprive the owner cost of the jewelry to the store was $54,000 and ofit. In larceny type thefts, the taking is unlawful. the retail value was $130,000. The appellate court In cases involving a wrongful taking, the intent to held that the trial court was correct in valuing the permanently deprive the owner of the property property at its rl;!tail value of $130,000 for the may be at the time of the taking of the property or purposes of sentence enhancement. (People v. at any time while the property is in the possession Swanson 142 C.A. 3d 104). of the thief. Theft by larceny is contained in Penal Code 484 (a), set forth earlier in this chapter. In the case of People v. Ross (25 C.A.3d 190) the accused, an automobile dealer, was charged Elements with theft for selling automobiles on which The elements of theft by larceny are: mileage shown by the odometers had been 1. an unlawful taking reduced. The court held that the value for the 2. of personal property belonging to another purposes of punishment and classification of the 3. with the intent to permanently deprive the crime was the amount of money received for the owner of the use or enjoyment of the cars by the accused, not the damages suffered by property. the victims. In another case, the accused received from the 5.6 Theft by False Pretense victims $550 to buy a horse that was represented Penal Code 532 False Pretense - Obtaining as a full-blooded Arabian mare. The horse was Property, Labor or Services only half-Arabian. The defendant contended that Every person who knowingly and designedly, for purposes of sentence enhancement that only by any false or fraudulent representation or pre­ the difference in value between a full-blooded tense, defrauds any other person of money, labor Arabian and the one received should be consid­ or property, whether real or personal, or who ered. The court held that the total amount of causes or procures others to report falsely of his money receIved by the accused ($550) should be wealth or mercantile character, and by thus impos­ the amount used in determining the type of theft ing upon any person obtains credit, and thereby involved (Reopie v. Hess 10 C.A. 3d 1071). fraudulently gets possession of money or property, or obtains the labor or service of another, is 5.4 Theft of Public Funds and punishable in the same manner and to the same Embezzlement extent as for larceny of the money or property so Penal Code 514 obtained. Every person guilty of embezzlement is Elements punishable in the manner prescribed for theft of property of the value or kind embezzlement; and The elements of the offense of theft by false where the property embezzled is an evidence of pretenses are: Theft 51

1. the defendant made false pretense or Taylor 30 CA 3d 117). The accused to obtain representation property from its owner, made a false statement 2. the pretense or representation was made regarding his financial character. The owner of the with the intent to defraud owner of property who wanted to get rid of the property property knew that the statement was false, but still turned 3. the owner was in fact defrauded in that he the property over to the accused. This is not theft or she parted with the property in reliance by false pretense, since the owner of the property on the pretense or representation. was not materially influenced by the false state­ ment in parting with the property. Discussion The defendant switched price tags on mer­ Theft by false pretense occurs when the vic­ chandise so as to buy the goods for less than the tim is induced to part with the property by false correct price. The store owner was aware that the pretenses of the thief. The victim relying on false tags had been switched, but allowed the defendant representations parts with the title to the property. to complete the purchase at the incorrect price in The accused must know that the representations order to arrest the accused for theft by false are false at the time they are made. The majority pretense. When the accused left the store, he was of the time this crime occurs during the transfer or arrested in the parking lot. The court held that the exchange of property. For example, the selling of defendant could not be convicted of theft by false an automobile with the mileage on the odometer pretense since the owner of the merchandise was "rolled back" is theft by false pretense, in that the not mislead by the defendant's conduct (People v. seller is selling an automobile that is represented Lorenzo 64 CA 3d Supp. 25). to have lower mileage and thus a higher value. The accused was convicted of theft by false The false representations must be representa­ pretense when he took money from a farmer by a tions of fact not opinion. The statements in selling L.~3e promise that the money would be used to a car, that this is a "good buy" or "this is the best bribe a county supervisor in order to obtain favor­ buy in town" are statements of opinion not fact. able consideration of a lease of county owned The statement that this car has "never been in a property (People v. Fujita 43 CA 3d 454). wreck, " however, is a false statement. While a false promise may be the basis for 5.7 Theft by Trick or Device theft by false pretense, the prosecution must Penal Code 332(a) Card-Monte, Trick and establish that the failure to keep the promise was Sure-:.thing Games not "merely a commercial default" (People v. Every person who by the game of' 'three-card Kiperman 64 CA 3d Supp. 25). monte", so- called, or any other game, device, The false statement must be of a past, not slight-of-hand, pretensions to fortune-telling, future event. To be theft by false pretenses, the trick, or other means whatever, by use of cards or victim must rely on the false representation. It is other implements or instruments, or while betting not necessary, however, that the false representa­ on sides or hands of any such play or game, tion be the sole inducement, but it must be a fraudulently obtains from another person money substantial part of the inducement. Note: the or property of any description, shall be punished suspect may be convicted of an attempted theft as in case of larceny of property of like value. without establishing that the victim relied on the Defined false representation. Theft by false pretense This crime is committed when the possession applies to both real and personal property, of personal property is obtained by fraud. The To be theft by false pretense, the: false pretense owner intends to depart with the possession of the or representation must have materially influenced property but not the title to it. The intent to steal the owner to part with the property. It, however, must exist at the time that the property is taken need not be the sole inducing cause (People v. (People v. Maggart 194 CA 2d 84). 52 Chapter 5

Discussion An accused who uses another person's credit This crime is different from theft by false and signing the other person's name to the access card may be guilty of both theft and forgery pretenses in that in the case of theft by false (people v. Cobb 15 CA 3d 1). pretenses, the O\vner intends to part with title to the property. In theft by trick or device, the owner 5.9 Defrauding Proprietors of Hotels, Inns, may intend to temporarily part with custody, but etc. does not intend to part with the title to the prop­ erty. Larceny by trick or device requires that the Any person who obtains any food, fuel, ser­ intent to steal be present at the time of the taking of vices, lodging, or accommodations at a hotel, inn, the property (People v. Mason 86 CA 2d 445). restaurant, boardinghouse, apartment house, motel, etc. without paying for it and with the A thief intending to steal a typewriter, obtains intent to defraud is guilty of this crime (p C 547). custody of it from the victim after convincing the In addition, leaving any of the above places after victim that he only wants to borrow it. If the thief obtaining credit without the intent to pay for did not intend to return the typewriter at the time services, etc. provided is a crime under this stat­ of the taking, he has committed the crime of theft ute. The use of false pretenses to obtain services, by trick or device. etc. is also a crime under this provision. Obtaining a loan of money based on a false Leaving a restaurant without paying for the statement that the money will be used for a special meals or filling up the car with gas and driving off purpose and wit.lJ. the intent to deprive the owner without paying creates a presumptive violation of of it is also theft by trick or device. Pigeon drops this statute. and switches are thefts by trick and device. Note: in cases involving theft by trick or device, unlike 5.10 Theft of Utility Services larceny, the intent to permanently deprive must Any person who obtains utility services with exist at the time of the taking or the transfer of the intent to avoid payment for the services is possession. guilty of the theft of utility services. Utility ser­ The crime is completed when the thief has vices are defmed as any electric.al, gas or water or obtained possession of the property. Theft by trick any other service provided by a public utility for or device is contained in Penal Code 484 (set compensation. This crime includes the act of forth above) and Penal Code 332. reconnecting utility service that has been lawfully disconnected by the utility and the use of devices 5.8 Theft by Access (Credit) Card to prevent the meter from accurately measuring There are five different types of theft by the services provided (P C 498). access card crimes set forth in the Penal Code. They are: 5.11 Theft by Embezzlement 1. Acquiring access cards without the card­ Penal Code 503 Embezzlement Defined holder's or issuer's consent (p C 484e) Embezzlement is the fraudulent appropriation 2. Forgery of access card (p C 484t) of property by a person to whom it has been 3. Use offorged access card or the misrepre­ entrusted. sentation as to the identify of the card Elements of Embezzlement holder (P C 484g) 4. Fraud by a merchant in accepting forged The elements of embezzlement are: access cards; knowingly honoring 1. the property embezzled belonged to illegally obtained access card; or receiving another; payment for access card vouchers for 2. the property was legally entrusted to the items not furnished (pC 484g) accused as agent, employee, bailee, 5. Counterfeiting or illegally completing trustee, or servant (a fiduciary relation­ incomplete access cards (P C 484i) ship exists); Theft 53

3. the necessary taking and carrying away her employer or principal totals $400.00 or more occurred; and in any 12 month period, the crime is a grand theft. 4. at the time of the taking and carrying This crime is a modem day statutory crime. away, the accused had the intent to perma­ At common law, there was no crime of theft by nently or temporarily deprive the owner of embezzlement. the property. There is a special embezzlement statute per­ Discussion taining to public employees. Penal Code 504 is set Theft by embezzlement is theft of property fOrtII above. This statute applies to any state, that has been entrusted to the taker. In embezzle­ county or city employee who fraudulently appro­ ment cases, the thief steals property that has priates for his own use or for any purpose not legally been entrusted to him or her. It is a viola­ authOlized any public property in his possession tion of the relationship of trust and confidence or under his control. (fiduciary relationship) (People v. Fox 43 CA 399 5.12 Theft of Lost or Mislaid Property and People v. Whitney 121 CA 2d 515). Civil Code, Section 2080 provides that any A bank teller receives money from a bank's person who finds lost property is not bound to take customers for deposit. If the bank teller steals the charge ofit, but ifhe or she does, he or she has the money rather than depositing it, the teller has obligation to take care of the property and inform committed the crime of theft by embezzlement. the owner, if known, within a reasonable time of An attorney receives money on behalf of his the location of the property. The finder may client. Rather than forwarding the money to the legally charge the Owner only a reasonable charge client, the attorney deposits it to his own account for saving and taking care of the property. and fails to tell his client of the payment. The attorney has committed the crime of A person who steals lost or mislaid property is embezzlement. guilty of theft under the following conditions: 1. the property is lost or mislaid under cir­ The two key distinctions between embezzle­ cumstance that by inquiry the true owner ment and theft by larceny are: can be identified and located, 1. in embezzlement, the original taking of 2. no reasonable inquiry is made to fmd the the property is legal (people v. Burchers owner and restore the property to him, and 199 C 52); and 3. the fmder appropriates the property for his 2. in embezzlement, the intent may be to own use or the use of another (p C 485). only temporarily deprive the owner of the The above conditions only apply to property property (People v. Braiker 61 CA 2d 406). that has been lost or mislaid. It does not apply to There is no requirement that the property property that has been abandoned. The crime is belong wholly to another. A partner may be con­ completed when having possession of the prop­ victed of embezzling property belonging to a erty, the finder fOIms the intent to appropriate the partnership. It is necessary that at the time of the property for his own use (/n re Greg F. 159 CA 3d embezzlement that the accused have actual con­ 466). trol of the property (entrusted to the accused). If the property has not been "entrusted" to the 5.13 Vehicle Theft (P C 499b and V C 10851) accused, he or she is not guilty of embezzlement There are two vehicle theft statutes in Califor­ but may be guilty of another type of theft. nia. In both statutes, only temporarily taking is required to constitute the theft. The two crimes Property subject to embezzlement may be are: money, goods, chattels, things in evidence of debt, right of action and real property. If the amount Under Penal Code 499b-Vehic1e theft is the taken by a servant, agent or employee from his or wrongful taking of any automobile, motorcycle, 54 Chapter 5 motorboat, vessel or vehicle for the purposes of 4. having obtained access to the article temporarily using or operating. This offense is through a relationship of trust and confi­ also known as the "joy-ride" crime. It is designed dence, without authority and in breach of to prevent the unauthorized "joy-riding" in other the obligations created by such relation­ people's autos. This crime is a misdemeanor. ship makes or causes to be made, directly from and in the presence of the article, a Under Vehicle Code 10851- Any person who copy of any article representing a trade drives or takes a vehicle not his own, without the secret. consent of the owner and with the intent to either permanently or temporarily deprive the owner of 5.16 Receiving Stolen Property (P C 496) his or her title or possession of the vepjcle is guilty Elements of Receiving Stolen Property of vehicle theft. Auto theft under the provisions of the Vehicle Code 10851 is a felony (Grand Theft The required elements of receiving stolen Auto). Note: this crime, unlike the other offense, property are: requires the intent to either permanently or tem­ 1. a person who knowingly porarily deprive the owner of title or possession of 2. buys, receives, conceals or withholds the vehicle. 3. property that has been obtained by theft or extortion. 5.14 Diversion of Cpnstruction Funds Discussion Penal Code 484b provides that any person P C 496 provides that any person who know­ who receives money for construction purposes ingly buys or receives any property which has and willfully fails to apply the funds for the been stolen is guilty of this crime. If a person buya intended purposes is guilty of a felony if the or receives stolen property under such circum­ amount misapplied is in excess of $1,000. If the stances that he should suspect that the property is amount misapplied is $1,000 or less, the crime is a stolen, there is an inference that he was aware that misdemeanor. it was stolen. To be convicted of this offense, the property Penal Code 484c provides that any person who submits a false voucher to obtain con­ must be stolen property. If the police use its own struction funds and does not use the funds for the property or property borrowed from someone as a intended purposes is guilty of embezzlement setup, the accused may be guilty of only an attempt to receive stolen property. This is based on the concept that the property that the accused is 5.15 Trade Secrets receiving is not in fact stolen property. Penal Code 499c (b) Receiving stolen property is distinct from the Every person is guilty of theft who, with crime of stealing the property. A person cannot be intent to deprive or withhold from the owner convicted of both stealing and of receiving the thereof control of a trade secret, or with an intent same stolen property. In People v. Stewart 185 CA to appropriate a trade secret to his or her own use 3d 197, the defendant's conviction of receiving or to the use of another, does any of the following: stolen property was overturned. The defendant 1. steals, takes, carries away, or uses without had been convicted of both burglary and receiving authorization a trade secret; stolen property. The court held that a person could 2. fraudulently appropriates any article not be convicted of both stealing the property and representing a trade secret entrusted to receiving stolen property where the evidence him; shows that the property received was the same as 3. having unlawfully obtained access to the the property taken in the theft and that a burglar article, without authority makes or causes could not be convicted of receiving stolen prop­ to be made a copy of any article represent­ erty from himself. Note: if the burglar or thief ing a trade secret; or disposes of the property and then receives itback, Theft 55 he/she may be guilty of both theft or burglary and property can be in the possession of more than one receiving stolen property. person.

Mere possession of stolen property alone is A person who receives stolen property is not insufficient to establish the offense of receiving guilty of being an accomplice to the crime of stolen property. A person in the business of buy" theft, unless the person makes an arrangement ing, dealing with or collecting used property, with the thief before the theft is committed. If an however, has a duty to conduct an inquiry into the arrangement is made between the thief and the legal right of a seller to sell or deliver the property receiver prior to the theft, then the thief is an being offered. Failure to do so under such circum­ accomplice of the receiving of stolen property and stances that would indicate that the property may also the receiver is an accomplice to the theft. be stolen, creates an inference that the person 5.17 Goods Stolen in Another State receiving the property knew that it was stolen property. Penal Code 497 Every person who, in another state or country Possession accompanied by suspicious cir­ steals or embezzles the property of another, or cumstances may be sufficient to establish the receives such property knO\ving it to have been inference that the property was received with stolen or embezzled, and brings the same into this knowledge that it was stolen. Factors used to state, may be convicted and punished in the same indicate knowledge that the property was stolen manner as if such larceny, or embezzlement, or include: receiving, had been committed in this state. 1. false statements regarding how the prop­ erty came into the accused's possession, 5.18 Single or Multiple Thefts 2. hiding the property, It is sometimes necessary to determine if 3. failure to identify the person from whom there is one single theft or separate smaller thefts. the accused received the property, The general rule is if there is one general intent to 4. flight from location of the property when steal and one general plan, it is all one theft the police arrived, (People v Fleming 220 C 601). In this case, the 5. attempting to destroy the property, values may be added for the purposes of detcnnin­ 6. possession of the property with identify­ ing if a grand theft has occurred. If the takings do ing marks removed, and not meet those requirements then each one is 7. extremely low price on high value items. considered as a separate crime and may be punished separately. In one case, the court held that while the The taking of several articles at one time unexplained possession of stolen property, stand­ normally is considered as one crime. The defen­ ing alone, is not sufficient to support a conviction dant stole several items of property belonging to for receiving stolen property, it is the circum­ different owners. In determining if the accused stances which could lead reasonable persons to committed grand theft or several petty thefts, the believe that the possessor either stole it or received court instructed the jury that the value of the it with the knowledge that it was stolen v. (People articles should be aggregated if the defendant had Edwards 14 CA 3d 57). Possession of recently one general overall plan and should be considered stolen property raises such a strong inference that separate offenses if the accused had no overall only slight additional evidence is needed to sup­ plan to steal them (People v. Sullivan 80 CA 3d 16). port a conviction (People v. Britz 17 CA 3d 743). A series of thefts from one person as a part of one Possession under this statute is defined as the general plan is also considered as one crime. exercise of dominion and control over the prop­ A mother who obtained monthly welfare erty. It is not necessary that the property be under checks for a period of six months based on one the immediate control of the accused, as long as false representation was guilty of only one theft. he has control of it and knows of its location. The An angry employee who sold his employer's goods 56 ChapterS dUling a two-week period and kept the proceeds, 5. Kathy was a checker at a K-Mart Store in Los was considered as guilty of only one crime since Angeles. The defendant, her brother, was he had only one general intent and general plan. observed with a shopping cart containing several items approaching and stopping at her !).19 Alteration of Serial Numbers (P. C. register. Kathy toole the items out of the cart !i37e) and put them on the counter. Next, she placed Penal Code 537e Possession of Articles From the items in a shopping bag and handed the Which Name Plates Removed-Misdemeanor bag to her brother. He walked out of the store (a) Any person who knowingly buys, sells, with the items without paying for them. What n~ceives, disposes of, conceals, or has in his crime, if any, has he committed? What crime, possession a radio, piano, phonograph, sewing if any, has she committed? machine, washing machine, typewriter, adding 6. The victim received a watch as a gift in 1949 machine, comptometer, bicycle, a safe or vacuum from her father shortly before his disap­ cleaner, dictaphone, w"tch, watch movement, pearance. The victim, having no need for the wutch case, or any mechanical or electrical device, watch, stored it in a chest. The defendant appliance, ... from which the manufacturer's stole the watch from the chest. The watch narneplate, serial number or any other distinguish­ originally cost $295.00. A similar watch ing number or identification mark has been would cost about $500.00 on today's market. removed, defaced, covered, altered or destroyed, Should the defendant be charged with petty is guilty of a misdemeanor. If the value of any theft or grand theft? integrated chip from which the nameplate, serial 7. Explain the differences between theft by number, or other distinguishing mark is removed, trick or device and theft by false pretenses. defaced, covered, altered, or destroyed exceeds 8. How does common law theft compare with four hundred ($400), the offense is a felony statutory larceny? punishable by imprisonment in the county jail not 9. Why was real property not subject to com­ to exceed one year or in the state prison. mon law theft? 10. What are the key distinctions between C1LASSROOM DISCUSSION QUESTIONS embezzlement and theft by larceny?

1. On a rainy day, Jerry goes to the local res­ SELF-STUDY QUIZ tauraillt for lunch. As he was leaving the True! False restaurant, he picks up what he thinks is his 1. Theft by larceny requires the intent to perma­ umbrella. The umbrella does not belong to nently deprive the owner of the property. him. What crim~, if any, has he committed? 2. Both petty and grand thefts may be felonies. Explain your answer. 3. Embezzlement requires that the accused use 2. Same a.s the above facts, however, Jerry false pretenses to obtain possession of the knows that the umbrella does not belong to property. him. What crime, if any, has he committed? 4. Real property may be subject to theft by false 3. Same as .number 1, except, Jerry takes the pretense. umbrella which he thinks does not belong to :;. Califomia has eliminated most of the fine him. He, however, actually picked up one that distinctions and technical niceties that for­ belonged to him that he had left there last merly existed between the common law theft week and forgot about it. What crime, if any, crimes. has he committed? 6. Iffruit is picked from a tree, it is then subject 4, Judy buys a new car on credit. The seller to the theft by larceny statutes. retains title to the car until the payments are 7. For the crime to be theft, it is necessary that completed. After she had made three pay­ the ta1cing be from the immediate physical ments, she sola' the car to Ralph. Can she be presence of the owner of the property. convicted of stealing the car? Theft 57

8. The value of the property is determined by from his employer. He stole a total of $550 in the original cost of it. this manner. He has committed the crime of 9. Theft by trick or device is committed when petty theft only. the possession of the property is obtained by 13. earen picks up a package of gum and hides it fraud. in her purse. She is stopped prior to leaving to. In order to be guilty of theft, a person must the store. She cannot be convicted of theft, steal property that has some value. since she is still in the store. 1 ]. A pawn shop owner cannot be convicted of 14. Stealing from the physical presence of a receiving stolen property unless he or she person is a petty theft. knew for certain that the property was stolen. 15. Grand theft may be punished by j ail, a fine or 12. Jerry devises a plan to steal $5.00 per day by prison term. Chapter 6

Burglary We inflict atrocious injuries on the burglars we catch in order to make the rest take effectual precautions against detection. (Ge>')rge Bernard Shaw)

Burglary Related Crimes trailer, or portion of a building is currently being 1. Burglary (P C 459) used for dwelling purposes if, at the time of the 2. Unauthorized Entry (p C 602.5) burglary, it was not occupied solely because a 3. Burglary By Use of Acetylene Torch or natural or other disaster caused the occupants to Explosive (p C 464) leave the premises. 4. Possession of Burglary Tools (p C 466) Burglary Defined 5. Sale of Burglary Tools (P C 466.1) 6. Forced Entry (p C 603) The entering of a building or place listed in P. 7. Vending Machine Theft (p C 466.3) C. 459,with the intent to commit grand or petit 6.1 Burglary larceny (theft) or any felony constitutes burglary. Penal Code 459 Acts Constituting Burglary; The essence of the crime of burglary is tlle "Inhabited Defined." unlawful entry and the dangers associated with Every person who enters any house, room, such an entry (People v. Lamica 249 CA 2d 640). apartment, tenement, shop, warehouse, store, The crime is completed with the entry (People v. mill, bam, stable, outhouse or other building, Clifton 148 CA 2d 276). Burglary statutes are tent, vessel, as defined in Section 21 of the Har­ based on the premise that the intruder may harm bors and Navigation Code., railroad car, locked or the occupants in process of attempting to commit sealed cargo container, whether arnot mounted on the crime (people v. Lewis 274 CA 2d 912). a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in An additional purpose of the burglary statutes Section 362 of the Vehicle Code, inhabited is the protection of buildings and property, camper, as defined by Section 243 of the Vehicle especially residences. At common law, burglary Code, vehicle as defined by Vehicle Code when required the breaking and entering of a dwelling the doors are locked, aircraft as defined by Sec­ house during the time of darkness. California tion 21012 of the Public Utilities Code, mine or burglary statutes have eliminated the require­ any underground portion thereof, with the intent ments of "breaking" and "entry during the hours to commit grand or petit larceny or any felony is of darkness" (People v. Scofield 149 CA 3d 536). guilty of burglary. As used in this chapter, "inhab­ The statutes have also included structures other ited" means currently being used for dwelling than dwellings and vehicles to the places subject purposes whether occupied or not. A house, to burglary.

59 60 Chapter 6

To constitute burglary, the entering of the building from the owner. For example, the enter­ building or vehicle must be with the intent to ing of a store that is open for business is a commit grand or petty theft or any felony (People sufficient entry provided that at the time of the v Lamica 274 CA 2d 640). Burglary is a specific entry the accused had the intent to commit a crime intent crime (People v. GreeH 228 CA 2d 437). The (People v. Brittian 142 C 8). This is based on the intended offense is separate from the burglary concept that any permission to enter is canceled by crime (People v. Garnett 29 C 622). Accordingly, the criminal intent of the accused. one entering a building for the purpose of commit­ The accused was invited into a house by the ting a theft therein is guilty of both the crime of resident and asked to wait for a few moments. The burglary and, at least, an attempted theft. In many accused instead stole some jewelry and left. The cases, the crime of burglary is a more serious court instructed the jury that the accused could be offense than the crime contemplated after entry. convicted of burglary if the jury determined that For example, petty theft is a misdemeanor, but he had the intent to steal at the time he entered the entering an inhabited dwelling with the intent to house (People v. Lowen 42 P 32). commit a petty theft is first degree burglary (Peo­ ple v. Wolfe 257 CA 2d 420). While an entry, either actual or constructive, is an essential element of the crime, an accused Elements of Burglary may not be convicted of burglary if the accused The elements of statutory burglary in Califor- has an absolute rightto enter the building. Thus, if nia are: the accused who leases a building for a legal 1. An entry purpose and later during the period of the lease 2. Into a building, structure or vehicle enters it for the purposes of stealing the fixtures 3. With the intent to commit grand or petty therein, there has been no entry for pUlposes of larceny (theft) or a felony the burglary statutes. This is based on the theory that the accused had an unconditional right to Discussion enter the building and therefore did not violate any The Entry Requirement possessory right (People v. Gauze 15 C 3d 709). There is no requirement that the entry be a Entering the building is an essential require­ (People v. Talbot 64 C2d 691). The ment. The body of the accused, however, does not entry may either be "actual" or "constructive. " A have to physically enter the structure (People v. constructive entry occurs when an agent, con­ Allison 200 C 407). Constructive entering is suffi­ federate, accessory, or aider and abettor enters the cient. For example, using a drill bit to bore a hole structure, instead of the defendant (People v. into the building has been held to be "an entry" Bonilla 124 CA 212). For example, in one case, the where a portion of the bit entered into the build­ accused was convicted of burglary based on the ing. In another case, entry was considered com­ entry into a railroad car by his confederate. In

2. with the specific intent to commit a crime, crowbar, screwdriver, vice grip pliers, water­ 3. by use of torch, explosive, etc., and pump pliers, sEdehammer, slim jim, tension bar, 4. opening or an attempt to open a. safe, vault lock pick, floor-safe gun, tubular lock pick, floor­ or other secure place. safe door puller, master key or other instrument or Discussion tool with the intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, Burglary by use of a torch or by explosives is trailer coach, or vehicle defined in the Vehicle an aggravated form of burglary, since the using of Code, without being requested to do by some a torch or explosives increases the danger that person having the .right to open the same, or who, someone will be injured or killed. An additional shall make, alter, or repair any instrument or purpose of the increased penalty is to discourage thing, knowing or having reason to believe that it an accused from using a torch or explosives when is intended to be used in committing a misde­ confronted with a secure depository (People v. meanor or felony, is guilty of a misdemeanor. Any Chastain 262 CA 2d 433). of the structures mentioned in Section 459 shall be A "secure place" is a storage place that has deemed to be a building within the meaning of this most of the attributes of a safe or vault and is section. designed for the purposes of keeping valuables. Elements "Safe" and "vault" are used in their ordinary and popular meaning (People v. Cook 135 CA 3d 785). The elements ofPossession of Burglary Tools: 1. The possession of certain tools 6.5 Unlawful Entry 2. Required intent: Penal Code 602.5 Unauthorized Entry of a. with the intent to break or enter any Dwelling building or structure mentioned in P.C. Every person other than a public officer or 459 (Burglary); employee acting within the course and scope of b. knowingly make or attempt to make a his employment in performance of a duty imposed key or other instrument to fit another by law, who enters or remains in any noncommer­ building without legal request; cial dwelling house, apartment, or other such c. the failure by a maker to ascertain the place without the consent of the owner, his agent, right to open or make or alter, or repair any or the person in lawful possession thereof, is instrument or thing; or guilty of a misdemeanor. d. knowing or having reason to believe that the tool(s) is (are) intended to be used Discussion in committing a misdemeanor or felony. The unauthorized entering or remaining in a Discussion noncommercial dwelling is not a necessarily included lessor offense of the crime of burglary. Possession of burglary tools is a criminal An accused was convicted of unlawful entry under offense if one of the four types of intent listed P.e. 602.5 when evidence established that the above is present. Subparagraphs a and b require a accused had entered a dwelling to steal, but was specific intent, whereas c and d require only a too drunk to form the specific intent necessary for general intent. a burglary conviction (People v. M uis 163 Cal Rptr 791). Unlawful entry under this statute does not 6.7 Sale of Burglar Tools apply to nonresidential structures (In Re D.C,L. Penal Code 466.1 Sale of Burglar Tools-Infor­ 147 Cal Rptr 54), mation to Be Retained Any person who knowingly and willfully sells 6.6 Possession of Burglary Tools or provides a lock pick, a tension bar, a lock pick Penal Code 466 Burglar Too!s gun, a tubular lock, or a floor-safe door puller, to Every person having upon him or her or in his another,. whether or not for compensation, shall or her possession a picklock, crow, keybit, obtain the name, address, telephone number, if Burglary 65 any, date of birth and driver's license number or building must keep certain records regarding the identification number, if any, of the person to person who requested the making of the key. whom the device is sold or provided and the signature of the person to whom the device was Penal Code 469 makes it a crime to duplicate sold or provided, shall be set forth on a bill of sale any key to a building or other area owned, oper­ or receipt. A copy. of each bill of sale or receipt ated or controlled by the State of California with­ shall be retained for one year and shall be open for out proper authorization. inspection by any peace officer during business hours. CLASSROOM DISCUSSION QUESTIONS 1. Chandler entered a hotel in the city of Los Any person who violates any provision of this Angeles for the purposes of obtaining a room section is guilty of a misdemeanor. for the evening. No one was present at the reception desk. He noticed a valuable watch 6.8 Vending Machine Theft on the counter. Unobserved, he picked up the Penal Code 466.3 Vending Machine Theft watch and walked Otit of the hotel. Chandler (a) Whoever possesses a key, tool, instru­ is charged with the crime of burglary. Is he ment, explosive, or device, or a drawing, print, or guilty? Explain your answer. mold of a key, tool, instrument, explosive, or 2. The Bradley family moved from their home device, designed to open, break into, tamper with, on the first of the month leaving most of their or damage a coin-operated machine as defined in furniture. The next day, the house was bur­ subdivision (b), with the intent to commit a theft glarized. The crime was discovered when the from such machine, is punishable by imprison­ family returned to remove their belongings. ment in the county jail . . . . Was this first or second degree burglary. (b) As used in this section, the tenn "coin­ Explain your answer. (People v. Cardona 142 operated machine" shall include any automatic CA 3d 481, 191 Cal Rptr 109). vending machine or any part thereof, parking 3. What purposes are served by requiring a meter, coin telephone, coin laundry machine, coin vehicle to be "locked'" before it is protected dry cleaning machine, amusement machine, byP C 459? music machine, vending machine dispensing 4. When is a building considered "inhabited" goods or services, or moneychanger. under P C 460? 5. At what point is the crime of burglary 6.9 Othler Related Crimes completed? 6. Which burglaries are classified as first degree Listed below are related crimes involving the ones? possession, use of, or making of duplicate keys. 7. If the accused does not know that the house is The below discussed crimes are misdemeanors. inhabited, can he still be convicted of first Penal Code 466.6-requires that anyone who degree burglary? Explain. makes a motor vehicle key made other than by 8. What are the restrictions on granting of pro­ duplication of an existing key must keep certain bation for a defendant convicted of burglary? records regarding the person who requested the 9. VVhat importance does the fact that the bur­ making of the key. glary was committed during "day" or "night" time have in burglary statutes? Penal Code 466.7 makes it unlawful to pos­ 10. What information is required to be kept by a sess a key made other than by duplication with the person who sells a lock pick gun? intent to use it in the commission of an unlawful act. Penal Code 466.8 requires that anyone who SELF STUDY QUIZ makes a key capable of opening a building by any TruelFalse method involving an onsite inspection of the 1. John enters a dwelling with the intent to steal 66 Chapter 6

valuables therein. After entry, he could not 5. The entry of the building under the burglary find any valuables to steal. He carmot be statute requires a breaking. convicted of burglary under these 6. An automobile is not covered by the statutory circumstances. burglary laws. 2. Joe entered a residence to commit the crimes 7. The entry into the building must be with the of rape and theft therein. He may be con- intent to commit a crime, but there is no victed of two burglaries since he entered with requirement that the crime be committed in the intent to commit two separate crimes in the building. the bUilding. 8. It is not a crime to possess burglary tools 3. It is not burglary unless the breaking unless one plans to use them. occurred during the hours of darkness:. 9. Sending a dog into a house to fetch property 4. The accused must physically ent(~r the therein may in some cases be burglary. building in order to commit the crime of 10. Burglary of an inhabited dwelling is only a burglary. misdemeanor. Chapter 7 Arson, Vandalism and Disorderly Conduct Arson, after all, is an artificial crime. Some crimes are crimes in themselves, would be crimes without any law . .. but the burning of things is in itself neither good nor bad. A large number of houses deserve to be burnt. (H.G. Wells, History of Mr. Polly.)

Arson Related Crimes (c) "Property" means real property or per~ 1. Arson (P C 451) sonal property, other than a structure or forest 2. Unlawfully Causing a Fire (P C 452) land. 3. Possession of Flammable Explosive or (d) "Inhabited" means currently being used Combustible Material or Substance or for dwelling purposes whether occupied or not. Device With Intent to Set Fire to or Bum "Inhabited structure" and "inhabited property" (P C 453) do not include the real property on which an 4. Attempt to Set Fire to, B urn, and, Counsel inhabited structure or an inhabited property is located. or Procure the Burning of Structure, For~ est Land, or Property (p C 455) (e) "Maliciously" imports a wish to vex, defraud, annoy, or injure another person, or an Vandalism and Disorderly Conduct Related intent to do a wrongful act, established either by Crimes proof or presumption of law. 1. Vandalism (p C 594) (f) "Recklessly" means a person is aware of 2. Disorderly Conduct (P C 647) and consciously disregards a substantial and 3. Trespassing (p C 602) unjustifiable risk that his or her act will set fire to, bum, or cause to burn a structure, forest land, or 4. Unlawful Assembly (p C 407) property. The risk shall be of such nature and 5. Public (p C 370) degree that disregard thereof constitutes a gross 6. Distrnbing the Peace (p C 415) deviation from the standard of conduct that a would observe in the situation. 7.1 Arson A person who creates such a risk but is unaware thereof by reason of voluntary intoxication also Penal Code 450 Definition of Terms acts recklessly with respect thereto. In this chapter, the following terms have the following meanings: Arson Defined (a) "Structure" means any building, or com~ mercialor public tent, bridge, tunnel, or Under early common law, arson was a crime powerplant. against the home. It consisted of the willful and (b) "Forest land" means any brush covered malicious burning of another person's dwelling land, cut~over land, forest, grasslands, or woods. and/or surrounding buildings. The burning could

67 68 Chapter 7 be either day or night, but a burning at night was fire was intentionally set was upheld on appeal the more serious crime. Arson was considered as a (People v. Patello 13 P 2d 1068). crime against the security of the home. Arson was a common law felony. Similar to present day In another case, the court considered the fact arson, the word "malicious" did not require ill that the accused had financial problems, most of will or hate. California, like most other states, has his personal effects had been removed from the expanded the definition of arson to include the house shortly before the fire, and the house was burning of other structures, forest land and other over-insured as evidence that the owner of the types of property. house had wilfully set fire to the house (People v. Freeman 135 CA 2d 11). Elements of Arson In People v. Nance, 25 CA 3d 925, the court The elements of arson are: held that the defense of diminished capacity was 1. Setting fire to or burns or causes to be not a defense to the charge of arson. In this burned or who aids, or procures decision, the court stated that arson does not the burning of require a specific mental state as long as the 2. any structure, forest land or property burning involved is intentional. In another case, 3. by the intentional act of the accused the police were notified of the ac.cused's plan to Discussion burn a building. The police hid nearby until the accused started the fire and then 1\rrested him for For the purposes of arson related crimes, arson. The court stated that the actions of the willful means an intentional act. Maliciousness police did not excuse the accused nor did the facts means orJy that the setting of the fire was inten­ negate the accused's malicious intent (People v. tional and deliberate. A fire is started willful and Greening 102 C 384). maliciously when the ac~used intentionally and deliberately sets fire to the building (People v. An accused was found guilty of willfully and Green 146 CA 3d 369). maliciously causing a dwelling to burn where he intentionally set fire to a nearby building which A fire that is started accidentally or uninten­ tionally is not considered as the result of willful spread to the dwelling. His conviction was upheld and maliciousness conduct. Arson is not estab­ even though there was evidence that the burning lished unless it is shown that the fire was of of the dwelling was not intended (People v. Hiltel incendiary rather than accidental origin. 131 C 577). The malicious intent of the defendant must be Motive malicious only in the sense that his is a mind set on Motive is not an essential element of the doing an intentional wrong. In the Green case offense of arson. TIle presence of motive may, (cited above), the defendant set fire to his wife's however, be important in proving the presence of a apartment, and the fire spread to the carport and wrongful intent. Lack of motive may be used by destroyed a car parked in the carport. The defen­ the defendant to dispute the presence of the dant contended that he should not be convicted of required intent. arson of the car, since he did not intend to burn it. The court held that the fire was set willfully and Burning maliciously, and the fact that some of the results of To constitute a burning, no outbreak of flame the fire were unintentional was ilTelevant. is necessary, but some part of the building, etc. In the majority of cases, the willful and mali­ must be at least charred. A burning, however cious intent is established by circumstantial evi­ slight, is sufficient to meet this requirement. For dence. For example, in a case where the firemen exam pIe, the floor of a building that is charred in a found the windows closed, shades drawn, doors single place is considered as a "burning" (People locked, a smell of kerosene, and fire starting in v. Haggerty 46 C 354). Some fibers, however, three different rooms, the jury's finding that the must be destroyed to constitute a burning. Mere Arson, Vandalism and Disorderly Conduct 69

blacldng of the wood was held to be insufficient to purposes of arson, PC 450 defines' 'inhabited" as establish a burning (People v. Simpson 50 C 304). "currently being used for dwelling purposes The accused was convicted of arson of a whether occupied or not." Therefore, the legisla­ building made of marble, plaster and concrete. He tive intent was to cover stmctures likely to be had contended that this building, a mausoleum, inhabited because of the danger to human life. was incapable of burning. The court held that (People v. Green 146 C 3d 369). (Note: the term since part of the marble floor was destroyed by "inhabited" has a slightly different meaning for "spawling," a conviction of arson was proper. arson than for burglary.) Note: "spawling" is the disintegration of marble by heat. (People v. Mentzer 163 CA 3d 482.) 7.2 Unlawfully Causing a Fire Burning Own Property Penal Code 452 A person who bums his/her own property A person is guilty of unlawfully causing a fire may be convicted of arson under PC 451, if the when he recklessly sets fire to or bums or causes burning was with the intent to defraud or when it to be burned, any structure, forest land or prop­ results in injury to property of others. The intent erty. [Subparagraphs (a) to (e) of statute omitted] to defraud situation often involves the burning of Discussion insured property with the intent to collect an insurance recovery. In cases involving protected The only difference between P C 451 and 452 forest lands, an individual may, also, be guilty of is that under P C 451, the fire is the result of a arson when he or she deliberately bums their own "willful and malicious" act whereas under P C protective forest land. 452, the fire is the result of "". To be guilty of this offense, the accused must "reck­ The restrictions and limitations placed on an lessly" set fire to or bum or cause to be burned any ?wner's right to dispose of his or her own property structure, etc. An accused's conduct was not con­ IS a valid exercise of a state's "police power" sidered as "reckless" when he negligently built a (People v. George 42 CA 2d 568). small campfire which was the source of a large Structures, Forest Land and Property fire after an unprecedented wind force developed. The arson statute covers structures of any To be guilty of this offense, the court ruled that the type, forest land and any other type of property. accused must consciously disregard the risk The term "property" includes both real and per­ involved so as to characterize his conduct as sonal property. Apparently, "personal property" reckless (People v. Budish 131 CA 3d 1043). does not include intangible personal property. Since this crime is considered as an "uninten­ "Intangible personal property" are items like tional" crime, a person may not be convicted of an stocks, bonds, , etc. attempt to commit this offense (In re Kent W. 181 CA 3d 721). The court, in In re Kent W, held that Inhabited since an attempt requires the specific intent to As discussed later, burning of an inhabited commit the target offense, that it was logically structure is considered as a more serious offense impossible to specifically intend an unintentional and greater maximum punishment than the burn­ result. Accordingly, there could be no such crime ing of an uninhabited one. The increased punish­ as attempting to recklessly start an unlawful fire. ment schedule is based on the theory that there is a greater danger of injury or death when an inhab­ 7.3 Possession of Flammable, Explosive or ited stmcture is burned. Combustible Material The defendant was convicted of arson of an Penal Code 453 inhabited structure based on the fact that the (a) Every person who possesses any flamm­ apartment that he set fire to had been vacated able, explosive or combustible material or sub­ several days earlier. The court stated that for the stance, or any device in an arrangement or 70 Chapter 7

preparation, with intent to willfully and mali­ 7.S Psychiatric Examination ciously use such material, substance, forest land Frequently, arson related offenses are com­ or property, is punishable by imprisonment in the mitted by persons with emotional disorders. state prison or in the county jail, not exceeding Accordingly, Penal Code 457 permits the court to one year. order a psychiatric examination of anyone con­ (b) Every person who possesses, manufac­ victed of an arson related offense. In addition, tures or disposes of a firebomb is guilty of a Penal Code 457.1 requires that persons convicted felony. of arson or attempted arson may be required by the For purposes of this subdivision, "disposes court to register with the chief of police or sheriff. of' means to give, give away, loan, offer, offer for sale, sell or transfer. 7.6 Notice ofRek't!~tse of Arsonist For purposes of this subdivision, a "fire­ bomb" is a breakable container containing a flam­ P C 11150 Requires that prior to the release of mable liquid with a flashpoint of 150 degrees a person convicted of arson, the Director of Cor­ Fahrenheit or less, having a wick or similar device rections shall notify in writing the State Fire capable of being ignited, but no device commer­ Marshall and all police departments and the sher­ cially manufactured primarily for the purpose of iff in the county in which the person was convicted illumination shall be a firebomb for the purpose of and, if known, the county in which he or she is this subdivision. [Subparagraph (c) which released to. P C 11151 requires similar notification exempts fire departments, military persons and by the Director of Mental Hygiene within five police possessing the above material in the course days of the release from a state mental institution of their duties is omitted.] or hospital of a person convicted of arson. Discussion 7.7 Vandalism In People v. Diamond (2 CA 3d 860), the Penal Code 594 provides that any person is defendant was convicted of the possession of a guilty of vandalism who: combustible substance when three firebombs 1. defaces with paint or any other liquid, were found in his automobile near a downtown 2. damages, or mall during a period of racial unrest. 3. destroys any real or personal property not his own. 7.4 Attempted Arson The amount of defacement, damage or Penal Code 453 destruction determines whether or not the crime (a) Any person who willfully and maliciously is a felony or misdemeanor. If the amount of attempts to set fire to or attempts to bum or to aid, damage is less than $5,000, the offense is a counselor procure the burning of any structure, misdemeanor. If the amount is $5,000 or more the forest land, or who commits any act preliminary offense is a "wobbler." thereto, orin furtherance thereof, is punishable by Penal Code 594.3 provides that any person imprisonment in the state prison. . . . who knowingly commits any act of vandalism to a Discussion church, synagogue, building owned and occupied The placing or distribution of any flammable, by a religious education institution, or other place explosive or combustible material or substance, or primarily used as a place of worship where any device in or about any structure, forest land or religious services are regularly conducted is guilty property in an arrangement or preparation with of vandalism of a church and is punish(l.ble by intent to eventually willfully and maliciously set continement in the county jail or state prison (a fire to or bum same or to procure the setting fire to wobbler). or burning of the same shall, for the purposes of Note: Education Code, Section 48905 deals this act constitute an attempt to bum such struc­ with vandalism of school property. Its provisions ture, forest land or property. are similar to those noted above. In addition, Arson, Vandalism and Disorderly Conduct 71

Education Code, Section 48904 and Civil Code guilty of trespassing (misdemeanor) who enters Section 1714.1 impose civil liability on parents or and occupies real property or structures without guardians for the vandalism of the child. consent from the owner or person in lawful pos­ session. Transient noncontinuous possession is 7.8 Disorderly Conduct not considered as occupying (People v. Catalano Penal Code 647 provides, in part, that a 29 C 3d 1). While mere presence on private person is guilty of a misdemeanor who does one of property may not be a trespass, the refusing to the below listed acts: leave private property not open to the public after Lewd or Dissolute Oonduct - Solicits being asked to leave by the owner or by a peace anyone to engage in or who engages in officer at the owner's request is a trespass (People lewd or dissolute conduct in any public v. Medrano 78 CA 3d 198). place or in any place open to the public or There is no trespass if the private property is exposed to public view. open to the general public, unless the property is Prostitution - Solicits or who agrees to being used in a manner not related to the purpose engage in or who engages in any act of for which it is open to the public (People v. prostitution. For purposes of Penal Code Lundgren 189 CA 3d 381). 647, prostitution includes any lewd act between persolils for money or other 7.10 Unlawful Assembly consideration. Penal Code 407 provides, in part, that when­ Begging - Accosts other persons in any ever two or more persons assemble together to do public place or in any place open to the an unlawful act, or do a lawful act in a violent, public for the purposes of begging or solic­ boisterous, or tumultuous manner, such assembly iting alms. is an unlawful assembly. This is a specific intent Loitering - Who loiters, prowls or crime, since those assembled must intend to com­ wanders upon the private property of mit an unlawful act, or a lawful act in a violent, another, at any time, without visible or boisterous or tumultuous manner. Violation of the lawful business with the owner or occu­ penal section is a misdemeanor. pant thereof. Peeping - Who, while loitering, prowl­ 7.11 Rout/Riot ing, or wandering upon the private prop­ Penal Code 404 and 406 deal with . erty of another, at any time, peeks in the Section 406 provides that whenever two or more door or window of any inhabited building persons, assembled and acting together, make an or structure without visible or lawful busi­ attempt to advance toward the commission of an ness with the owner or occupant of the act which would be a riot, if actually committed, building or structure. that the assembly is a rout. Who lodges in any building. structure, vehicle or place, whether public or privat.e, Section 404 provides that any use of force or without the permission of the owner or violence, disturbing the public peace, or any threat person entitled to the possession or control to use such force or violence, if accompanied by thereof. (Note: "public place" includes immediate power of execution, by two or more any park, street, or building open to the persons acting together, and without authority of public:, or any public offices.) law, is a riot. The group must be acting together with a common intent. There must be at least "Solicit" means to strongly urge, to entice or threats to use force or violence which is apparently lure, especially into evil, attempt to seduce, or to available. In addition, the threats or use of force accost for an immoral purpose (p C 648). must actually disturb the peace. Public peace is considered "disturbed" when the actions of the 7.9 Trespassing group excite terror, alarm, and consternation in Penal Code 1\)02 provides that a person is the neighborhood. Note: P C 404.6 prohibits 72 Chapter 7

urging others to riot or to bum or otherwise to public school, elementary school, community col­ destroy property. lege, state college, etc. Note: P C 415.5 does not apply to any person who is registered as a student 7.12 of the school where the disturbance took place. P C 370 defines a public nuisance as anything The crime of disturbing the peace is a which: misdemeanor. 1. is injurious to health, 2. or is indecent, CLASSROOM DISCUSSION QUESTIONS 3. or offensive to the senses, 1. Paul starts a fire in his garage in order to 4. or an obstruction to the free use of destroy his automobile. The fire spreads to property, his neighbor's house. What crimes can Paul (a) so as to interfere with the comfortable be convicted of? enjoyment of life or property 2. Karl attempts to bum his home in order to (b) by an entire community or collect insurance on it. He is unaware at the neighborhood, time that he started the fire, his insurance (c) or by any considerable number of policy had expired and the house was unin­ persons, sured. After he starts the fire, he changes his 5. or unlawfully obstructs, the free passage mind and puts it out. The house suffered only or use, in the customary manner, minor damage from the fire. What crimes has (d) of (lny navigable lake, Karl committed? (b) or river, bay, stream, canal, or basin, 3. What are some of the problems involved in (c) or any public park, square, street, prosecuting public nuisance crimes? (d) or highway is a public nuisance. 4. What is the difference between a "rout" and a P C 372 states (in part) that every person who "riot?" maintains or commits any public nuisance or who 5. Explain the differences between P C 451 and willfully omits to perform any legal duty relating 452. to the removal of a public nuisance, is guilty of a 6. What part does' 'motive" play in the crime of misdemeanor. A "nuisance" can be an act, condi­ arson? tion, thing or person causing trouble, annoyance, 7. Why does the court have the authority to or inconvenience. Before prosecution may be had order a psychiatric examination of a person under PC 372, the accused must be given notice convicted of arson? to abate the public nuisance and an opportunity to 8. Define "recklessness" for the purposes of P do so. C452. 9. What constitutes the offense of "tres­ 7.13 Disturbing the Peace passing" under PC 602? 10. When is "vandalism" a "wobbler?" P C 415 defines three types of disturbing the peace crimes. The three are as follows: 1. Unlawfully fighting or challenging SELF·STUDY QUIZ another person to fight in a public place. True/false 2. Maliciously and willfully disturbing 1. The crime of arson is a misdemeanor. another person by loud and unreasonable 2. Motive is an essential element of arson. noise. 3. To be convicted of arson, the burning must be 3. Using offensive words in a public place during the hours of darkness. which are likely to produce an immediate 4. "Forest land" for the purposes of the arson violent reaction. statutes does not include grasslands. 5. A person may be convicted of an attempt to PC 415.5 is similar to PC 415, except that it "unlawfully set a fire" under Penal Code applies only to buildings and grounds of any 452. Arson, Vandalism and Disorderly Conduct 73

6. A judge may order the defendant to undergo must be shown that the fire was of incendiary psychiatric examination if the defendant is rather than accidental origin. convicted of arson. 11. Unlawfully obstructing a river is not a public 7. Arson requires that the burning be ac­ nuisance. complished with a "malicious and willful" 12. A rout is an attempted riot. intent. 13. Unlawful assembly is a specific intent crime. 8. To constitute the crime of arson, there must 14. To be guilty of trespass, a person must enter be some bumin; vr charring of the structure, and occupy real property or structures. forest land or property. 15. For purposes of disorderly conduct crimes, 9. A person may be convicted of arson if the "solicit" means to strongly urge, to entice or individual recklessly starts a fire. lure, especially into evil, attempt to seduce, 10. In order to establish the crime of arson, it or to accost for an immoral purpose. Chapter 8 Assault/Battery and Deadly Weapons Law A code a/laws is like a vast/orest: the more it is divided, the better it is known. (Jeremy Bentham, A General View On a Complete Code a/Laws)

Assault/Battery and Deadly Weapons Related 19. Unlawful Possession of Concealed Crimes Weapon (P C 12(01) 1. Assault (P C 240) 20. Possession of Sawed-off Shotgun (P C 2. Battery (p C 242) 12020) 3. Assault Against a Peace Officer (p C 241) 8.1 Definition of Assault and Battery 4. Sexual Battery (p C 243.4) 5. Assault With Deadly Weapon (p C 245) An assault is an attempt to inflict violent 6. Assault With Intent to Commit Mayhem, injury upon another person by some form of Rape, Sodomy, Oral Copulation (P C contact. If the violent injury is actually inflicted or 220) contact is made upon the person of another, then 7. Motor Vehcile Assaults (P C 417.3) the crime is a battery. An assault is an attempt to 8. Throwing Acid With Intent to Disfigure commit a battery. Accordingly, one may be con­ (P C 244) victed of an assault even if the evidence establishes 9. Mayhem (P C 203) that a battery was committed (People v. Whalen 10. Aggravated Mayhem (p C 205) 124 CA 2d 713). 11. Spousal or Cohabitant Battery (P C 273.5) 8.2 Assault 12. and Neglect (P C 270 & 273a) Penal Code 240 Assault-Defined 13. Dangerous Weapons' Control Law (p C An assault is an unlawful attempt, coupled 12000) with a present ability, to commit a violent injury 14. Discharge of Firearms at Inhabited on the person of another. Dwelling or Vehicle (P C 246) Elements 15. Drawing, Exhibition or Using A Firearm Or Deadly Weapon (P C 417 (a)(1) The elements of the crime of assault are: 16. Exhibiting Firearm in Presence of Peace 1. an unlawful attempt Officer (P C 417b) 2. with the (apparent) present ability 17. Shooting at Aircraft (P C 247) 3. to commit an injury to the person of 18. Carrying Switchblade Knife (P C 653k) another.

75 76 Chapter 8

8.3 Battery a battery. (Note: this maybe a violationofP C417, Penal Code 242 Battery-Defined threatening with a weapon.) A battery is any willful and unlawful use of In People v. Ranson (40 CA 3d 317), the force or violence upon the person of another. accused pointed a loaded weapon at the victim. Elements The top caItridge was improperly loaded causing the weapon to jam. The court held that the defen­ The Elements of the crime of battery are: dant had "present ability" to commit a violent 1. The willful and unlawful injury since he could have quickly cleared the jam 2. use of force or violence and fired the weapon. In a similar case, the present 3. against the person of another. ability was present where an automatic weapon 8.4 Discussion of Assault and Battery without a round in the firing chamber, but with a Crimes loaded magazine, was pointed at the victim. To constitute an assault, the attempt to com­ Violent Injury mit a violent injury must be unlawful. For exam­ The phrase' 'violent injury" is misleading. For ple, an attempt to commit a violent injury in a purposes of the assault and battery crimes, "vio­ prize fight or in self-defense is not normally lent injury" has a special meaning. It is not the unlawful and thus, not an assault. It is also not an same as "." Actual bodily harm is not assault if the act is made with the consent of the required. The term "violent injury" includes any victim (People v. Gordon 70 C 467). wrongful act committed by means of physical Required Intent force agaim;t the person of another. An offensive touching is sufficient. The "violent injury" To constitute the offense of an assault under referred to may be only to the dignity of the Califomia statutes, there must be an intent to person. The kind of physical force used is imma­ inflict violent injury against another, and a direct terial. The act of spitting at another or attempting act toward carrying out that intent. Accordingly, to touch someone in an offensive manner is con­ an individual cannot "accidentally" commit an sidered sufficient. assault. Reckless conduct, but without the intent to commit violent injury, on the part of an accused In one case, a conviction of battery was upheld is not an assault (People v. Barnes 101 CA 3d 341). on evidence that the accused pushed on the door of In that case, the court held that the intent neces­ an office to prevent the victim from closing the sary to commit an assault is the intent to commit a door. The court stated that the closing of the door battery. The intent to commit a battery, however, while it was touching the "victim" could be may be implied from the act. The general rule is deemed an offensive touching (People v. Puckett that it is enough that the act be intentional and 44 CA 3d 607). unlawful. There is no requirement to prove an It is not important that the victim "fear" the intent to injure. violent injury. If for example, you were to take a Present Ability swing at close range with your fist at a heavy weight boxing champion, that conduct would con­ The direct act is, also, dependent on the stitute an assault. It does not matter that the boxer present ability of the offender to carry out the did not fear your assault. intended injury. If the individual does not have the present ability to commit a violent injury, then Battery on Peace Officers there is no assault. The belief of the victim as to It is a felony (wobbler) to commit a battery: the ability of the defendant to commit the assault 1. on the person of: is immaterial (People v. Mosqueda 5 CA 3d 540). a. a peace officer, Pointing an unloaded gun at a person in a b. firefighter, threatening manner is not an assault under Califor­ c. an emergency medical person, nia law since there is no present ability to commit d. a custodial officer, Assault/Battery and Deadly Weapons Law 77

e. a process server, and 8.7 Motor Vehicle Assaults f. operator or passenger of transporta­ Penal Code 417.3 Drawing or Exhibiting Fire­ tion for hire vehicle. (PC 243.3) arm to Person in Motor Vehicle 2. when the victim is engaged in the per­ Every person who, except in self-defense, in formance of his/her official duties; and the presence of any other person who is an occu­ 3. the offender knows or should reasonably pant of a motor vehicle proceeding on a public know that the victim is one of the above street or highway, draws or exhibits any firearm, persons. whether loaded or unloaded, in a threatening manner against another person in such a way as to cause a reasonable person apprehension or fear 8.5 Attempted Assault bodily harm is guilty of a felony. As noted earlier, an assault is an attempted battery. An attempted assault, however, is not a Nothing in this stanIte shall preclude or pro­ crime (In re James 9 CA 3d 517). For example, hibit prosecution under any other statute. threats of injury without the present ability to Discussion commit a battery is not an assault - nor is the leering at a woman. PC 417.3 was enacted by the Legislanlre in 1987 as a direct result of the "freeway" shootings in Southern California, which later spread to other 8.6 Simple and Felonious Assaults parts of the State. It is assumed that the phrase "proceeding on a public street or highway" Simple Assault includes those situations where the motor vehicles Simple assault is the popular term used to are stopped in traffic because of traffic lights or denote a misdemeanor assault (People v. Egan 91 traffic problems. Note: the offense may be com­ CA 44). To constitute a simple assault, there must mitted with either a "loaded" or "unloaded" be an ability and an attempt to commit the offense. weapon. Basically, it is an assault without any aggravating P C 12034 makes it a misdemeanor to dis­ factors such as a completed battery or assault with charge a firearm from a motor vehicle. If the a dangerous weapon. It is also a lessor included weapon is discharged at another person, the crime offense to other types of assault. For example, if is a felony. Note: P C 246.1, also, provides that any the accused is tried for assault with the intent to person who maliciously and willfully discharges a commit rape and the State proves an assault but firearm at an inhabited dwelling, house, occupied cannot establish the intent to commit the rape, the motor vehicle or inhabited housecar is guilty of a accused may be convicted of at least simple felony (wobbler). assault. 8.8 Assau" --'- It Deadly Weapon Felonious Assault Penal Code 24, Felonious assault describes those assaults that (1) Every p..!ion who commits an assault are committed with the intent to commit a felony. upon the person of another with a deadly weapon For example, some of the more common felonious or instrument other than a firearm or by any force assaults are: likely to produce great bodily injury is punishable by imprisonment in the state prison ... or in a 1. assault with a deadly weapon; county jail not exceeding one year, or by fine ... 2. battery with serious bodily injury; or by both such fine and imprisonment. 3. sexual battery; (2) Every person who commits an assault 4. assault with intent to commit mayhem, upon the person of another with a firearm is rape, sodomy or oral copulation; and punishable by imprisonment in the state prison .. . 5. assault on a peace officer in the perfor­ or in a county jail ... or by both a fine and .. . mance of duty; imprisonment. 78 Chapter 8

Elements to commit mayhem, rape, sodomy, oral copula­ tion, or any violation of Section 264.1,288 or 289 The elements of an assault with a deadly is punishable by imprisonment in the state prison. weapon are: [Note: sections 264.1,288 and 289 pertain to rape 1. An unlawful attempt to commit a violent and other sexual offenses.] injury 2. Upon the person of another Elements 3. With the present ability The elements of the crime of felonious assault 4. Using a deadly weapon or a force likely to are: produce great bodily injury. 1. An unlawful attempt to commit a violent Discussion injury upon the person of another 2. with the present ability There are two different crimes. The first involves the use of a deadly weapon and the 3. with the specific intent to commit may­ second is the use of force (with or withm!t a hem, rape, sodomy, oral copulation or any weapon) in a means likely to produce great bodily of the sexual offenses listed in Sections injury. 264.1, 288 or 289 of the Penal Code. A deadly weapon can be any object capable of Mayhem causing death or great bodily injury from the S.10 manner in which it is used. For example, hitting Penal Code 203 Mayhem Defined the person over the head with an unloaded pistol Every person who unlawfully and maliciously could cause great bodily injury, and therefore, is deprives a human being of a member of his body, a deadly weapon, whereas the pointing of an . or disables, disfigures, or renders it useless, or unloaded rifle at a person would not. To be gUilty cuts or disables the tongue, or puts out an eye, or of this offense, it is not necessary for an actual slits the nose, ear, or lip, is guilty of mayhem. injury to result from the assault. To determine if the weapon used is a deadly Penal Code 205 Aggravated Mayhem weapon, the nature of the weapon, the manner of A person is guilty of aggravated mayhem its use, the location of the person at which the when he or she unlawfully. under circumstances weapon was directed and the injury, if any, manifesting extreme indifference to the physical inflicted will be considered. or psychological well-being of another person, Any physical force that is capable of produc­ intentionally causes permanent disability or dis­ ing great bodily injury is sufficient for purposes figurement of another humanlleing or deprives a of the deadly force requirement. If the victim is human being of a limb, organ, or mem ber of his or injured and no weapon is found, the nature of the her body. For purposes of this section, it is not victim's injury may justify an inference that a necessary to prove an intent to kill. Aggravated dangerous weapon was used. mayhem is a felony punishable by imprisonment This offense is not a special intent crime. For in the state prison for life with the possibility of example, one accused was convicted of an assault parole. with a deadly weapon for pointing a loaded pistol at the victim. There is no requirement to establish Elements that the accused intended to use the weapon. The elements of mayhem are: Also,the firing of a pistol in the direction of the 1. An unlawful battery, victim without an intent to hit the victim, but to 2. maliciously inflicting, or attempting to only "scare him" is an assault with a deadly inflict violent injury, and weapon (People v. McCoy 25 CA 2d 518). 3. one or more described injuries as a result S.9 Assault With the Intent to Commit May­ of above action. hem, Rape, Sodomy, or Oral Copulation Discussion Penal Code 220 Mayhem is a fODn of aggravated battery (Peo­ Every person who assaults another with intent ple v. DeFoor 100 C 150). Unlike assault with the Assault/Battery and Deadly Weapons Law 79 intent to commit mayhem, there is no requirement [penal Code 12028.5 peImits law enforce­ of a specific intent to inflict the resulting injury. ment personnel to take possession of any fireaIms For example, one defendant was convicted of at the scene of a domestic violence incident.] mayhem when he hit the victim in the head, breaking his glasses and destroying the sight in [The Domestic Violence Prevention Act (Code of Civil Procedure, Sections 540-533) one eye. No evidence, however, was presented allows any family member who can show that he regarding an intent to destroy the eyesight (People or she has been abused in the past by a spouse or v. Wright 93 C 564 and People v. Vigil 242 CA 2d other member of the household to obtain a tempo­ 862). rary restraining order (TRO) to prevent further violence. Violation of a TRO is a misdemeanor The nature of the injuries involved in mayhem under P C 273.6.] convictions include: 1. biting off the nose, or pOltion thereof, 8.12 Child, Spouse, or Parent Abuse or 2. cutting off a piece of a.n ear or a portion of Neglect a lip, Child Abuse 3. rendering an eye useless for practical purposes, Penal Code 273a(1) makes it a felony (wob­ 4. disabling the tongue by biting it, and bIer) to willfully abuse a child under circum­ 5. biting through the lip ("slit"). stances likely to produce great bodily hann or death. The types of abuse covered by this section Aggravated mayhem was created by the legis­ include: lature in 1987 for punishing those who peIma­ 1. Willfully causing or pennitting the child nently disable or disfigure victims. Offenders to suffer unjustifiable physical pain or convicted of this offense may be sentenced to life mental suffering. imprisonment. 2. Having custody of the child, willfully per­ mitting thl~ child to be placed in a situation that endangers the person or health of the 8.11 Spousal or Cohabitant Battery child. 3. Having custody of the child, willfully Penal Code 273.5 Felony to Inflict Corporal causes or peImits the child to be injured. Injury on Spouse or Cohabitant (a) Any person who willfully inflicts upon his P C 273a(2) makes it a misdemeanor in the . or her spouse, or any person who willfully in­ above cases, if the circumstances or conditions are flicts upon any person of the opposite sex with other than those likely to produce great bodily whom he or she is cohabiting, or any person hann or death. who willfully inflicts upon any person who is the Child Abuse Reporting mother or father or his or her child, corporal injury resulting in a traumatic condition, is guilty Penal Code 11166 provides that: of a felony .... 1. any child care custodial, (b) Holding oneself out to be the husband or 2. medical practitioner, wife of the person with whom one is cohabiting is 3. non-medical practitioner, or not necessary to constitute cohabitation as the 4. employee of one of the above who has term is used in this section. knowledge or reasonably suspects that a (c) As used in this section, "traumatic condi­ child is a victim of child abuse shall: tion" means a condition of the body, such as a a. immediately report, by telephone, the wound or external or internal injury, whether of a abuse to a child protection agency, and minor or serious nature, caused by a physical b. fonow-up with a written report within 36 force. hours. 80 Chapter 8

Note: the above reporting requirement does 8.13 Dangerous Weapons' Control Law not include child abuse by other than physical Penal Code 12001 Fire?rrns Defined means. For example it does not include mental (a) As used in this chapter, the terms' 'pistol," abuse or of ,emotional well being. "revolver," and "firearms capable of being con­ Child Neglect cealed upon the person" shall apply to and include Penal Code 270 provides for punishment of any device, designed to be used a~ fl weapon, from parents and guardians of any child who fail with­ which is expelled a projectile by force of any out a lawful excuse to furnish the necessary food, explosion, or other form of combustion, and clothing and shelter for his or her child. That which has a barrel less than 16 inches in length. section, also, provides punishment for the aban­ These terms also include any device which has a donment or desertion of a child by a parent or a barrel 16 inches or more in length which is guardian. Note: that criminal conduct is present designed to be interchanged with a barrel less only when there is "no lawful excuse" for the than 16 inches in length. failure to provide the necessary care. The inability (b) ... the terms "pistol," "revolver," and to provide the necessary care is, in most cases, a "firearm GHpable of being concealed upon the defense to child abuse. person" include the frame or receiver of any such weapon. [Subsection (c) omitted.] Other penal statutes involving neglect or abandonment of child are: Penal Code 12001.5 Sawed-Off Shotguns Not 1. P C 270f provides for the reporting and Authorized investigation of failure to support a minor ... nothing shall be construed as authorizing child. the manufacture, importation into the state, keep­ 2. P C 2705 makes it a misdemeanor to ing for sale, or giving, lending, or possession of refuse to accept your child in your home any sawed-off shotgun, as defined in Section without just cause. 12020. 3. P C 272 makes it a crime to contribute to Penal Code 12020 Manufacture, Importation, the delinquency of a minor. Sale, Possession or Carrying Concealed 4. P C 273 makes it a misdemeanor to pay Weapons money or give any thing of value to a [This section makes it a felony (wobbler) to parent for the adoption of a child. (Note: manufacture, import, sale, possess or carry a medical, hospital or birth related expenses concealed or disguised firearm or other deadly may be paid by the adopting parent.) weapon. A 1987 modification to the section Neglect of Spouse included "camouflaging firearm containers" within the prohibition. Concealed weapons P C 270a makes it a misdemeanor for an include "cane guns," "wallet guns," "sawed-off individual who has sufficient ability to provide for shotgun," "flechette darts," and "ballistic his or her spouse's support to fail to provide the knives."] necessary support. An exception to the obligation to support exists in those cases where the conduct Penal Code 417 Threatening 'Vith Weapon of the other spouse is such that the individual was (a)(1) Every person who, except in self­ justified in abandoning such spouse. defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, Neglect of Parent other than a firearm, in a rude, angry or threaten­ Civil Code 206 establishes a reciprocal duty ing manner, or who in any manner, unlawfully of support for parent and child. Accordingly, the uses the same in any fight or quarrel is guilty of a parent or child has a duty to support the other if misdemeanor. the other is unable to maintain himself or herself. (a)(2) Every person who, except in self­ PC 207c provides that the failure of an adult child defense, in the presence of any other peLson, to support an indigent parent is a misdemeanor. draws or exhibits any fireaml, whether loaded or Assault/Battery and Deadly Weapons Law 81 unloaded, in a rude, angry, or who in any manner, wooden clubs, baton or other authorized equip­ unlawfully uses the same in any fight or quarrel is ment. Certified uniformed security guards guilty of a misdemeanor ... engaged in any lawful business, also, may carry wooden clubs or baton for purposes of protecting [Subparagraph (b) makes it a felony or misde­ and preserving property or life within the scope of meanor to draw, exhibit. or use a firearm in the his or her employment.] immediate presence of a peace officer.] Penal Code 417.1 Threatening Reserve Peace Penal Code 12020 Manufacture, Sale, Posses­ Officer With Weapon sion, Etc., of Certain Weapons [This section makes it a felony or misde­ [This section makes the manufacture, sale, meanor to draw, NC., against any person desig­ possession, etc. of the below weapons a felony or nated as a reserve or auxiliary sheriff or city police misdemeanor: officer.] 1. cane or wallet gun; 2. any firearm which is not immediately rec­ [Note Penal Code 417.3 regarding threatening ognizable as a firearm; and ass

Penal Code 12021.1 Persons Previously Con­ complaint, indictment or information and proved if victed of Violent Offense Prohibited From Pos·· not admitted by the accused.] sessing Firearms [This section makes it a felony or misde­ Penal Code 12035 Criminal Storage of a Firearm meanor for persons previously convicted of a Any person who keeps any loaded firearm violent offense (26 violent offenses listed in the within any premises which is under his or her section) to possess any firearm.] custody of control where a child under the age of 14 years may gain access to the weapon is gUilty Penal Code 148 Resisting or Obstructing Public of PC 12035. Office~·... Removal of Officer's Firearm [This section makes it a felony for any per­ CLASSROOM DISCUSSION QUESTIONS son to remove or take a firearm from the person 1. Explain the differences between an assault and of, or immediate presence, of a public officer, a battery. during the commission of any offense. Any 2. What is meant by the term "apparent present attempt to remove or take a firearm from a ability?" public officer is a misdemeanor. Taking of a 3. What constitutes a "violent injury" for purpos- weapon other than a firearm from a public es of the assault and battery crimes? officer is also a misdemeanor.] 4. Define "offensive touching." 5. What is the gist of the crime of mayhem? Penal Code 12025 Unlawful to Carry Concealed 6. Define a "dangerous weapon." Firearms Without License 7. Under what circumstances is "consent" a [This section makes it a misdemeanor (or defense to battery? felony with a prior conviction of carrying a con­ 8. Distinguish between the types of intent cealed weapon) to carry a concealed weapon with­ required to establish "simple assault" and out a license.] assault with an intent to commit mayhem. Penal Code 12026 Possession at Residence or 9. Why do the statutes allow an adult to possess Place of Business a firearm without permit in his or her [This section permits an adult to purchase and residence? to possess at his or her residence or place of business a firearm without penn it or license.] SELF STUDY QUESTIONS True/False Penal Code 12026.1 Transportation in Trunk or 1. An assault is an attempt to inflict violent Locked Container injury upon another person by some form of [This section makes it legal for an adult to contact. carry a concealed handgun within the locked 2. An assault is an attempt to commit a battery. mmk or a motor vehicle, or in a locked container 3. To be an assault, the attempt to commit a other than the glove compartment. The handgun violent injury must be unlawful. may be carried to and from the vehicle while 4. Consent is a defense to battery. concealed within the locked container.] 5. Pointing an unloaded weapon at a person is not an assault. Penal Code 12031 Loaded Firearms-Carrying 6. Violent injury has a special meaning in assault in Public Place or in Vehicle and battery cases. [The section prohibits the carrying of a loaded 7. Simple assault is normally used to denote a firearm in public places or in a vehicle.] felony assault. 12022.5 Additional Punishment for Use of 8. A deadly weapon can be any object capable of Firearm causing death or great bodily injury from the mallller in which it is used. [This section provides for an additional term 9. Assault with a deadly weapon is a specific of imprisonment for using a firealm in the com­ intent crime. mission of a felony. Note: this is a sentence enhan­ 10. Battery is a general intent crime. cement, and therefore must be alleged in the 11. Mayhem is a form of aggravated battery. Assault/Battery and Deadly Weapons Law 83

12. To be mayhem, the injury must disfigure the 14. Threatening a person with an unloaded victim. weapon is not a crime in California. 13. The Dangerous Weapons Control Law applies 15. It is a misdemeanor to willfully discharge a only to persons using illegal weapons. firearm at an inhabited dwelling. Chapter 9

Homicide Truth will come to light; murder cannot be hid long. (Shakespeare, Merchant a/Venice)

Homicide Related Crimes Corpus Delicti 1. Murder in the first degree The literal meaning of the term "corpus 2. Murder in the second degree delicti" is "body of the crime." In criminal homi­ 3. Voluntary Manslaughter cide, the corpus delicti is the death of a human 4. Involuntary Manslaughter being under criminal circumstances. "Corpus 5. Aiding Another to Commit Suicide delicti" is basically the required elements of a particular crime. 9.1 Homicide Defined The elements of criminal homicide are: Homicide is the killing of a human being by 1. A criminal activity (either act or another human. Not all homicides are crimes. For omission) example, excusable homicides and justifiable 2. Resulting in the killing of another human homicides are not crimes. These will be discussed being. later in this chapter. Criminal homicides are those homicides that are crimes, mainly murder and The Killing of A Live Person manslaughter. The above elements include the requirement that the human being was" alive" at the time of the 9.2 Criminal Homicides act (People v. Smith 215 C 749). A person, Criminal homicides are classified as: however, who has suffered a mortal wOU!ld and 1. Murder will die shortly, may still be the victim of a a. First degree murder criminal homicide by the infliction of a new injury b. Second degree murder that hastens his death. For example,if the 2. Manslaughter deceased attempts to kill himself and inflicts grave a. Voluntary injuries on himself, the act of another in putting b. Involuntary the deceased out of his misery is considered a c. Vehicular criminal homicide. (People v. Lewis 124 C 551). The circumstances surrounding the killing Whether the killing of a fetus in a woman's and the mental state of the actor determines in body is a homicide depends on the viability of the most cases the type of criminal homicide involved fetus. A fetus is "viable" ifit is capable ofsurviv­ (People v. Mar Gin Suie 11 CA 42). All criminal ing the trauma of birth and living outside of the homicides are considered "mala in se" (evil in womb. It does not matter if the birth is assisted by itself) crimes (People v. Herbert 6 C 2d 541). artificial medical treatment or that the fems must

85 86 Chapter 9 be sustained on machines; as long as it is capable natural an.d probable consequence of the act. The of existing independently of the mother (People v. test is "if the original act had not occurred, would Apodaca 76 CA 3d 479). The killing of viable the victim have died?" For example, if the victim fetus is not criminal homicide if an abortion is is shot by the accused resulting in a non-fatal conducted under the Therapeutic Abortion Act or wound, but the victim dies on the operating table is required for the mother's safety. In most cases, as the result of shock, the shooting is the "proxi­ the fetus is considered viable during the third tri­ mate cause" of the death (People v. Freudenberg semester (fmal three months) of the pregnancy. 121 CA 2d 564). In another case, People v. Moan Note: there is no statutory crime of manslaughter (65 C 532), the victim being quite ill suffered an of a fetus in California (People v. Apodaca, 76 injury which accelerated his death. The injury was CA3d 479). considered as the "proxinlate cause" of his death. Time Requirement 9.3 Murder At common law, the death must occur within one year and a day after the cause of the death. Penal Code 187 This has been modified by P C 194 which requires (a) Murder is the unlawful killing of a human that the death occur within three years and one day being, or a fetus, with malice aforethought. after the cause. In those cases where there is a delay between the act or omission causing the Penal Code 188 Express and Implied Malice­ death and the death, the date of the act, not the No Other Mental State Needed to Establish date of death, is used for legal purposes. For Malice Aforethought example, in the case of People v. Gill (6 C 63), the Such malice may be "expressed" or death occurred after the enactment of a new "implied. " It is expressed when there is man­ statute on criminal homicide, but the act causing ifested a deliberate intention unlawfully to take the death was prior to the new law. The court held away the life of a fellow creature. It is implied, that since it was the date of the act, not date of when no considerable provocation appears, or death that controlled, the n.j:N law did not apply. when the circumstances attending the killing show an "abandoned and malignant heart. " Brain Death Inflicting an injury that would otherwise be a When it is shown that the killing resulted from fatal injury is not a criminal homicide if the victim the intentional doing of an act with expressed or is already "brain dead" (People v. Lewis 124 C implied malice as defmed above, no other mental 551). In California, the brain death concept is used state need be shown to establish malice as the definition of death. Health and Safety Code, aforethought .... [See: People v. Semone 140 CA Section 7180, describes death as the "the total and 318]. irreversible cessation of brain functions. " Accord­ Penal Code 189 Murder of First or Second ingly, once the determination of brain death has Degree been made, the person is no longer alive, even if All murder which is perpetrated by means of a the body is still breathing. destructive device or explosive, knowing use of Proximate Cause ammunition designed primarily to penetrate metal or armor, poison, lying in wait, , or by any Criminal homicide must be the result of an other kind of willful, deliberate, and premeditated affirmative act, an omission to act, or criminal killing, or which is committed in the perpetration negligence. The act causing the death, however, of, or attempt to perpetrate, arson, rape, robbery, need not be the only cause of death v. (People burglary, mayhem, or any act punishable under Fowler 178 C 657 and People v. Lewis 124 C 551). Section 288, is murder of the first degree; and all The death must be the proximate result of a other kinds of murders are of the second degree. human act. It need not, however, be the direct [Section 288 concerns lewd acts on a child under result. Proximate cause means that the death was a the age of 14.] ------

Homicide 87

As used in this section,. "destructive device" Malice aforethought actually refers to the shall mean any destructive device as defined in state of mind of the accused. It manifests itself in Section 12301, and "explosive" shall mean any one of the following situations: explosive as defined in Section 12000 of the 1. The result of an act done with the specific Health and Safety Code. To prove the killing was irrfent to kill (expressed malice). "deliberate and premeditated\," it shall not be 2. Th,e result of an act done with the intent to necessary to prove the defendant maturely and produce serious bodily harm (expressed meaningfully reflected upon the gravity of his or malice). her act 3. The result of an act done during the per­ petration of or the attempt to commit one Malice Aforethought of the felonies listed in P C 188 (implied Malice aforethought is an essential element of malice). (See discussion of felony-murder the crime of murder (People v. Holt 25 C 2d 59). rule later in this chapter.) The difference between murder and manslaughter 4. The result of an act done in conscious is the presence or absence of "malice disregard of the consequences, where aforethought. " The malice may be either death or serious injury is likely to occur, expressed or implied. Except for those cases and which indicates an "abandoned and involving implied malice, there must either be an malignant heart" such as the tossing of a intent to kill or an intent to commit ac~s likely to fire bomb into a crowd (implied malice). kill with a conscious disregard for human life 5. The result of an act of resisting a lawful (people v. 62 C 2d 777). arrest and done in a manner that demon­ strates a conscious disregard for human For express malice, all that is required is the life (implied malice). intent to kill. It does not require any ill will or hatred toward the victim (People v. Bendtr 27 C 2d 164). The intent to kill may be formed at anytime 9.4 Felony-Murdl~r Rule prior to or at the time of the act. Accordingly, the At common law, under the felony-murder intent to kill may be formed at the time that the rule, a murder committed during the perpetration death-causing act is administered (People v. Jam­ of or an attempt to commit a serious felony was arillo 57 C 111). considered as premeditii\ted murder. In Cailifomia, Transferred Intent the rule is incorporated into PC 189. Accordingly, murders committed during the perpetration of or Underthe "transferred intent" doctrine, if the an attempt to commit one of the listed felonies is accused intends to kill one person, but in attempt­ first degree murder. Note: for the felony-murder ing to do so kills another, the intent to kill is mle to apply, there must be a murder, not merely a transferred to the actual victim. Accordingly, the homicide (People v. Coejield 37 C2 865). accused may re convicted of murder of the other person (People v. Henderson 34 C 2d 340). In one The effect of the felony-murder rule is that it case, the accused shot at his wife, missed her and is a substitute for "malice aforethought" in homi­ killed a bystander. He was guilty of assault with cides when there is a direct causal connection the intent to murder (on the wife) and murder of between the commission Olf' attempted commis­ the other person (People v. Brannon 70 C 225). sion of a listed felony and the death (People v. Ireland 70 C 2d 522). Implied malice occurs when: 1. no considerable provocation is present, Specific intent required for murder in the first 2. when the circumstances indicate an aban­ degree is still required, but under the felony­ doned and malignant heart, or murder rule it is a transferred i.ntent. Accordingly, 3. the killing resulted from the intentional the accused had a specific intent to commit a doing of an act likely to cause death or fekny and that intent is transferred to the killing. serious bodily injury. (P:eople v. Dillon 34 C 3d 441). L ___ ~ -----~.------

88 Chapter 9

A criminal is accountable for all killings com­ 9.5 Multiplicity mitted by him/her and his/her associates in the course of the felonious conduct. This liability is The general rule is that each victim is consid­ not limited to foreseeable deaths. It also includes ered a separate crime. Accordingly, if an individ­ accidental deaths. For example, in one case the ual causes the death of five people by a single accused, intending to commit arson, sets fire to a criminal act, the individual may be tried for five building which he thought was unoccupied. Dur­ murders. In one case, the accused killed two ing the fire, a person sleeping in the building was people with a single criminal act. The court held killed. The accused was convicted of first degree that the acquittal of the accused in one case did not murder under the felony-murder rule (People v. bar prosecution for the other death (People v. Milton 145 C 169). Carson 37 CA 3d 349).

The felony-murder rule contained in the penal code requires that the "killing" occur in the 9.6 Punishment for Murder perpetration of one of the listed felonies. A coinci­ dental death is not a "killing" within the meaning The punishment for murder is set forth in P C of the statute (People v. Gunnerson 74 CA 3d 370). 190. The punishment schedule is: The death, however, need not be a direct cause of 1. Murder in the first degree - death, life imprisonment or term of 25 years to life. the felony. A concurrent cause is sufficient. A 2. Murder in the second degree-term of 15 killing to escape the scene of a felony or to prevent years to life. discovery or apprehension is a killing within the meaning of the felony-murder rule (People v. Rye The penalty for murder with special circum­ C 2d 688). stances is death or confinement for life without possibility of parole. Special circumstances are The felony-murder rule does not apply to set forth in P C 190.2. Some of them are listed crimes not listed. There is also a corresponding below: misdemeanor-manslaughter rule. Murder com­ 1. Intentional murder for financial gain. mitted during the perpetration of or an attempt to 2. Murder committed by means of a destruc­ commit a felony not Ii sted, or a misdemeanor may tive device, bomb or explosive planted, be second degree murder or manslaughter. hidden or concealed in any place, area, dwelling, etc., and the defendant knew or If two or more persons conspire to commit one reasonably should have known that his act of the felonies listed in PC 189, and during the or acts would create a great risk of death to commission of the felony a murder is committed, a human being or human beings. then each may be tried for the murder as if each 3. Murder was committed for the purpose of had conspired to commit the murder. avoiding or preventing a lawful arrest or to perfect or attempt to perfect an escape In one case, the defendants had conspired to from lawful custody. take money from a victim. One of the defendants 4. The victim was a peace officer in the struck the victim in the head causing his death. performance of his/her duties and the The other defendants stated that they had con­ defendant knew or should have known of spired to roll a drunk, and that striking the victim the victim's status as a peace officer. was not part of the plan. The court instructed the 5. The victim was a witness to a crime who jury that the degree of murder depended on was killed to prevent his/her testimony. whether the defendants conspired to rob the vic­ 6. The defendant was lying in wait. tim (murder in the first degree) or merely "drunk 7. The victim was killed because of his/her rolling" (murder in the second degree) (People v. race, color, religion, nationality or country Bauman 39 CA 2d 587). of origin. ------

Homicide 89

9.7 Voluntary Manslaughter The second type of involuntary manslaughter involves those situations where the accidental Voluntary manslaughter is the unlawful kill­ killing results from the commission of a lawful act ing of a human being without malice upon a but in a criminally negligent manner. For exam­ sudden quarrel or in the heat of passion. ple, taking target practice in a rural area without Heat of Passion checking out the impact area and thus causing the death of a person camping in the vicinity. To reduce the unlawful killing of a human being from murder to manslaughter, the killing 9.9 Vehicular Manslaughter must be done without malice and as the result of a Vehicular manslaughter is the unlawful kill­ sudden quarrel or done in the heat of passion. ing of a human being, without malice and uninten­ Sudden quarrel refers to unplanned mutual com­ tional, while driving a vehicle. bat such as a fist fight in a bar caused by a quarrel. To constitute adequate "heat of passion," ilie The types of vehicular manslaughter are: accused must be in a state of blinding rage which 1. Death caused by the gross negligence of is sufficient to cloud the judgment and common the driver (felony). sense of a reasonable person and prompts the 2. Death caused by the negligence, but not person to act rashly and without deliberation. gross negligence, of the driver (misdemeanor). The heat of passion must exist at the time of 3. Death caused by a negligent and unlawful the killing. If the provocation is adequate, but act of the driver (felony). there is a cooling off period between the provoca­ 4. Death caused by the gross negligence of tion and the killing, the crime is murder not the driver while under the influence of manslaughter. Note: The amount of provocation drugs or alcohol (felony). may affect the length of the "cooling off" period. Note: a homicide involving the driving of a vehicle is not manslaughter if the death is not the 9.8 Involuntary Manslaughter pmximate result (cause) of the unlawful act or Involuntary manslaughter is the unlawful and negligence. unintentional killing of a human being without 9.10 Gross Negligence malice during the commission of an unlawful non­ Gross negligence is defined as: felony act or the commission of a lawful act which 1. Such a degree of negligence or careless­ might produce death, in an unlawful manner and ness that either shows a willful and wanton without due caution. [Note: P C 192 (b) regarding disregard for the life and safety of others, involuntary manslaughter does not apply to deaths 2. Amounts to the want of even slight dili­ involving driving a vehicle.] gence,or There are two basic types of involuntary mllii­ 3. A failure to exercise care of so slight a slaughter in California. The first involves the degree as to justify the belief that there is unintentional killing of another during the com­ an indifference to the safety of others and mission of an unlawful act that does not amount to a conscious indifference to the a felony. For example, the accused hits the victim consequences. in the head with his fist without just cause. The victim falls and strikes his head on a boulder 9.11 Punishment for Manslaughter· causing his death. The accused has committed The punishment for manslaughter is set forth involuntary manslaughter. Note: if the assault was in Penal Code 193. The punishment schedule is: with a dangerous weapon rather than with fists, 1. For voluntary manslaughter --imprison­ the crime is murder. This is based on the fact that ment in the state prison. assault with a dangerous weapon is a felony 2. For involuntary manslaughter-­ whereas simple battery is only a misdemeanor. imprisomnent in the state prison. 90 Chapter 9

3. For vehicular manslaughter- 2. When committed by accident and misfor­ a. Involving the commission of an unlaw­ tune, in the heat of passion, upon any ful act not amounting to a felony and with sudden and sufficient provocation, or gross negligence or driving a vehicle in the upon a sudden combat, when no undue commission of a lawful act which might advantage is taken, nor any dangerous produce death, in an unlawful manner and weapon is used, and when the killing is not with gross negligence-imprisonment in done in a cruel or unusual manner. the county jail or in state prison. Excusable Homicide b. Same as above except without gross negligence-imprisonment in the county Excusable homicide is a homicide caused by jail for not more than one year. an accident or other misfortune while doing a c. D11Ving under the influence of drugs or lawful act by lawful means and using usual and alcohol, but without gross negligence­ ordinary caution. There must be no unlawful imprisonment in the county jailor state intent involved with the act causing the death. For prison. example, an automobile accident not involving an d. Vehicular manslaughter involving unlawful act or negligence which causes the death gross negligence while intoxicated - of a person, would be excusable homicide (P C imprisonment in the state prison. 195).

9.12 Suicide 9.14 Suicide is not considered a criminal homicide Penal Code 199 Acquittal of Person Guilty of in California. Attempted suicide is, also, not a Justifiable Homicide crime in the state. Encouraging another to commit suicide is, however, a felony under P C 401. In a The homicide appearing to be justifiable or suicide pact where one party survives, the surviv­ excusable, the person indicted must, upon his ing party nonnally may be tried for encouraging a trial, be fully acquitted and discharged. suicide. Note: this is not the case in murder/ Justifiable Homicide suicide situations where the dead party did not intend to commit suicide. In thi8latter situation, it A justifiable homicide is one that was com­ is probably murder. Also, if the survivor actually mitted for the protection of society or a part of commits the dea'th causing act on the other person, society. A homicide is considered justifiable when then it is murder even if the act was done at the committed by a public officer as set forth in P C request of the victim. 196 (above) or in any of the following circumstances: 9.13 Non-Criminal Homicides 1. When resisting any attempt by the deceased to murder any person, or to As stated earlier, not all homicides are crimi­ commit a felony, or to do some great nal. The non-criminal homicides are classified as: bodily injury upon any person. 1. Excusable 2. When committed in defense of home, per­ 2. Justifiable son or propelty, against one who man­ a. by a police officer ifestly intends or endeavors, by violence or b. others surprise, to commit a felony. Penal Code 195 Accidental and Excusable 3. When committed against one who man­ Homicide ifestly intends and endeavors, i.n a violent, Homicide is excusable in the following cases: riotous or tumultuous manner, to enter the 1. When committed by accident and misfor­ home of another for the purpose of offer­ tune, or in doing any other lawful act by ing violence to any person therein. lawful means, with usual and ordinary 4. When reasonably committed in the lawful caution, and without any unlawful intent. defense of one's self or otl1ers. Homicide 91

5. When necessarily committed in attempt~ 9.15 Home Protection ing by lawful ways and means to Penal Code 198.5 Home Protection Bill of Rights apprehend any person for a felony com­ Any person using force intended or likely to mitted or in lawfully suppressing any riot, cause death or great bodily injury within his or her or in lawfully keeping and preserving the residence shall be presumed to have held a reason­ peace. able fear of imminent peril of death or great bodily injury to self, family, or a member of the house­ In the above listed situations, a "bare fear" of hold when that force is used against another per­ the commission of a felony is not sufficient to son, not a member of the family or household, justify the homicide. The circumstances must be who unlawfully and forcibly enters or has sufficient to excite the fears of a reasonable per­ unlawfully and forcibly entered the residence and son, and the party doing the killing must have the person using the force knew or had reason to acted under the influence of such fears alone (P C believe that an unlawful and forcible entry 198). occurred. As used in this section, great bodily injury Penal Code 196 Killing in Performance of Offi­ means a significant or substantial physical injury. cial Duty Justifiable Homicide is justifiable when committed by 9.16 Self-Defense public officers and those acting by their command in their aid and assistance, either- The right of self-defense involves the right of 1. In obedience to any judgment of a compe­ an individual to repel force with similar force to tent court; or, protect his or her life, members of the family, the 2. When necessarily committed in overcom­ home and other property. Deadly force may be ing actual resistance to the execution of used only to prevent great bodily harm, prevent some legal process, or in the discharge of the perpetration of a felony by surprise or violence any other legal duty; or, against one's person or home. 3. When necessarily committed in retaking Deadly force is not normally justified for the felons who have been rescued or have protection of property. A person may,however, use escaped, or when necessarily committed deadly force to prevent anyone from entering his in arresting persons charged with felony, or her home to commit a felony or to inflict serious and who are fleeing justice or resisting bodily harm on people living in the home. In arrest. determining whether or not excessive force has been used, the courts look to what action appeared Use of Deadly Force By a Police Officer to be reasonable under the circumstances as they appeared to the defender at the time of the attack. In 1985, the U.S. Supreme Court held in Instigator Tennessee v. Garner, 471 U S 1, that a statute In most cases, the individual who starts a fight which pennitted the police to use deadly force to cannot rely on self defense to justify the killing. prevent the escape of an unarmed and non-dan­ An exception to this general rule is where the gerous felon was unconstitutional. This case lim~ original instigator gives up the fight and attempts ited the use of deadly force to only those situations to retreat. Under these circumstances, the original where the use is necessary to prevent serious instigator may regain the right to self defense bodily harm or death to the police officer or (People v. Hoover 107 CA 635). Note: a police others. The Gamer case modifies the provisions of officer making an arrest is not an instigator (P C P C 196 (in civil liability cases) which indicates 835a). that homicide is justifiable in overcoming actual resistance to the execution of some legal process, Duty to Retreat or in the discharge of any other legal duty. In some states, a person has a duty to retreat 92 Chapter 9 before using deadly force when the individual can SELF-STUDY QUIZ safely retreat. In California, an individual who is attacked may stand his or her ground and defend True/False) himselforherself(Peoplev.Zuckerman, 56 CA2d 366). 1. All homicides are criminal. 2. To be a criminal homicide, the death must DISCUSSION QUESTIONS occur within one year and a day after the act 1. What are the essential differences between causing the death. murder and manslaughter? 3. The corpus delicti of a criminal homicide 2. What is meant by "heat of passion?" does not contain the elements of the crime. 3. When is a homicide not a criminal one? 4. California uses "brain death" as the defmi­ 4. What are the elements of murder in the first tion of death. degree? 5. Malice aforethought requires a feeling of ill 5. When is the killing of a fetus a criminal will toward the victim. homicide? 6. Malice may be either expressed or implied. 6. What are the types of criminal homicide in 7. A killing to make an escape from a robbery California? scene is within the felony-murder rule. 7. What are the two types of non-criminal homi­ 8. The felony-murder rule does not apply to cid~s in California? those felonies not listed by the statute. 8. Defme" death" as used in murder cases? 9. The accused killed two people with one rifle 9. What is the difference between "expressed" shot. He has committed only one murder. and "implied" malice? 10. The "heat of passion" may reduce an unlaw­ 10. Define "malice aforethought." ful killing from murder to manslaughter. .-----. ------

Chapter 10

Rape and Other Sexual Crimes Unnatural deeds do breed unnatural problems (Shakespeare, Macbeth)

Rap,e and Other Sexual Crimes committing the act ... the prosecut­ 1. Rape (P C 261) ing attorney shall prove, as an ele­ 2. Rape of Spouse (P C 292 (b» ment of the crime, that a mental 3. Penetration of Genitals or Anus with For- disorder or developmental or physi­ eign Object (P C 289) cal disability rendered the alleged 4. Sexual Battery (P C 243.4) victim incapable of giving consent. 5. Indecent Exposure (p C 314) (2) Where it is accomplished against a 6. Oral Copulation (P C 288a) person)s will by means of force, vio­ 7. Sodomy (p C 286) lence, or fear of immediate and 8. Sexually Assaulting Animal (p C 286.5) unlawful bodily injury on the person 9. Unlawful Sexual Intercourse (P C 261.5) or another. 10. Incest (p C 285) (3) Where a person is prevented from 11. Pimping (P C 266h) [Discussed in Chap­ resisting by any intoxicating or anes­ ter 13.] thetic substance, or any controlled 12. Selling Person for Illicit Use (p C 266f) substance, administered by or with [Discussed in Chapter 13.] the privity of the accused. 13. Pandering (P C 266i) [Discussed in (4) Where a person is at the time uncon­ Chapter 13.] scious of the nature of the act, and 14. Prostitution (p C 647(b» [Discussed in this is known to the accused. Chapter 13.] (5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this 10.1 Rape belief is induced by any artifice, pre­ Penal Code 261 Rape- Acts Constituting tense, or concealment practiced by Rape is an act of sexual intercourse accom­ the accused, with intent to induce the plished with a person not the spouse of the per­ belief. petrator, under any of the following conditions: (6) Where the act is accomplished (1) Where a person is incapable, because against the victim's will by threaten­ of mental disorder or developmental ing to retaliate in the future against or physical disability, of giving legal the victim or any other person, and consent, and this is known or reason­ there is a reasonable possibility that ably should be known to the person the perpetrator will execute the

93 94 Chapter 10

threat. As used in this paragraph under more than one of the circumstances listed in "threatening to retaliate" means a PC 261 (People v. Craig 17 C 2d 453). threat to kidnap or falsely imprison, Inability by reason of intoxication to form a or to inflict extreme pain, serious specific intent to rape is not a defense to the crime bodily injury, or death. (People v. Potter 77 CA 3d 45). Sterility is, also, (7) Where the act is accomplished not a defense (People v. Langdon 192 CA 3d 1419). against the victim's will by threaten­ In California, a conviction of rape may be had ing to use the authority of a public solely on the testimony of the victim. There is no official to incarcerate, arrest, or requirement for corroboration of the victim's testi­ deport the victim or another, and the mony (People v. Frye 117 CA 3d 101). Note: since victim has a reasonable belief that the the elements of rape involve sexual intercourse perpetrator is a public official. As with a "person," a woman may be convicted of used in this paragraph, "public offi­ raping a male in California. cial" means a person employed by a governmental agency who has the 10.2 Sexual Penetration authority, as part of that position, to Penetration is an essential element of the incarcerate, arrest, or deport another. crime of rape (People v. Ray 187 CA 2d 182). The perpetrator does not actually Sexual intercourse for the purposes of Section 261 have to be a public official. is completed with a sexual penetration, however Penal Code 261.6 "Consent" Defined slight (People v. Karsai 131 CA 3d 224). In prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue, "consent" 10.3 Consent shall be defmed to mean positive cooperation in Valid consent to the sexual intercourse is a act or attitude pursuant to an exercise offree will. defense to the crime of rape (People v. Alfrand 61 The person must act freely and voluntarily and CA 3d 414). A good faith belief by the accused have know ledge of the nature of the act or transac­ that the woman had consented to the sexual inter­ tion involved. course is a defense to the crime of rape by force or Penal Code 263 Essential Elements- Penetration fear (People v. Anderson 144 CA 3d 55). The essential guilt of rape consists in the If a woman initially gives consent, but later outrage to the person and feelings of the victim of withdraws her consent, any sexual penetration the rape. Any sexual penetration, however, slight, after she withdraws her consent is rape. If consent is sufficient to complete the crime. is, however, withdrawn after penetration has occurred, that act of intercourse is not rape (Peo­ Elements of Rape ple v. Vela 172 CA 3d 237). The elements of rape are: 1. sexual intercourse with a person not the 10.4 Rape by Force or Fear spouse of the perpetrator, and The crime of forcible rape is committed if at 2. without the lawful consent of the victim. any time during the struggle, the accused intends to use force or threatens to use force to gratify his Discussion lustful concupiscence against the victim's will As noted above, to be convicted of rape under (People v. Royal 53 C 62). Actual use of physical Section 261, the victim must not be the spouse of force is not necessary. Threats of great and imme­ the perpetrator. (Spousal rape is discussed later in diate bodily harm is sufficient to constitute force. this chapter.) In addition, the courts have deter­ The threats, however, must be sufficient to put the mined that to be raped, the victim must be alive at victim in actual fear of bodily injury (People v. the moment of penetration (People v. Stanworth 11 Benavidez 255 CA 2d 563). C 3d 588). A single act of intercourse is only one The amount of force or threats of force offense of rape, even though it is accomplished required for conviction of forcible rape is that Rape and Other Sexual Crimes 95 amount of physic(ll force required under the cir­ an anonymous donor who had been injected with a cumstances to overcome the victim's resistance serum which would cure the disease. The court (People v. Wheeler 71 CA 3d 902). To convict an held that based on the above facts, there was no accused of forcible rape, actual physical resis­ rape of a victim who was unconscious a.s to the tance on the part of the victim is not required nature of the act, that the woman understood the (People v. Barnes 42 C 3d 284). The necessary nature of the act, and there was no evidence threats need not be verbally expressed. Acts, indicating that she lacked the capacity to appreci­ conduct or the exhibition of a weapon may imply ate the nature of the sex act (Boro v. Superior Court the necessary threats (People v. Benadivez 255 CA 163 CA 3d 1224). 2d 563). An assault with intent to commit rape and 10.7 Consent Obtained by Fraud simple assault are lessor and included offenses of Fraudulent statements or rape (People v. Chavez 103 C 407). which induce sexual intercourse is material only for rape under Subsection (5) ofP C 261 (regard­ 10.5 Gang Rape ing of status as a spouse). Lack Penal Code 264.1 prohibits conduct when the of the consent of the victim is an essential element defendant, voluntarily acting in concert with of rape under Subsections (2) and (3). "Consent" another person, by force or violence and against even though induced by fraud is still a defense to the will of the victim, commits rape or anal or Subsections (2) and (3) (People v. Harris 93 CA 3d genital penetration by a foreign object. These acts 103). Note: P C 266c (enacted in 1986) makes it a are more commonly known as "gang rape" and is crime (unlawful intercourse) to induce sexual a separate crime from the crime of rape. To be intercourse by the use of false representation made guilty of this offense, the accused need only aid or with the intent to create fear. abet in some manner. He/she does not need to A conviction was upheld under Subsection (5) personally participate in the act. (People v. Best where the female, in good faith, entered into a 143 CA 3d 232). "mock marriage" that was arranged by the 10.6 Unconscious Victim accused. She then engaged in sexual intercourse with him on the mistaken belief that she is married To constitute rape under subsection (4) to him (People v. McCoy 58 CA 534). (unconscious victim), it is not necessary that the victim be totally and physically unconscious. A 10.8 Statutory Rape victim is considered as unconscious when the Penal Code 261.5 Definition of Unlawful Sexual victim is unaware of the nature of the act being Intercourse committed on her, and the accused is aware of her Unlawful sexual intercourse is an act of sexual state (People v. Ogunmola 193 CA 3d 274). In one intercourse accomplished with a female not the case, a conviction was upheld under PC 261 (4), wife of the perpetrator, where the female is under where the victim went to the defendant's office for the age of 18 years. an abortion. During one of the followup visits, the defendant had intercourse with her after giving Discussion her an injection that made her light-headed and Unlawful intercourse is more popularly carefree (People v. Ing 65 C 2d 603). known as "statutory rape". Consent is not an issue In another case prosecuted under subsection in this crime, since sexual intercourse with a (4), the conviction was reversed where the accused female under the age of 18 years is prohibited identified himself as a doctor and induced the (Michael M. v. Superior Court 25 C 3d 608). It is victim to engage in sexual intercourse based on his not an unconstitutional discrimination to prohibit false statement to her that she was suffering from a sexual intercourse with a female under 18 years of dangerous, highly infectious and fatal disease and age, but not prohibit similar conduct with a male would die unless she had sexual intercourse with under 18 years of age (People v. Mackey 46 CA 3d 96 Chapter 10

755). The defendant's reasonable belief (referred is not impotent or sterile, is conclusively pre­ to in some cases as a "good faith and reasonable" sumed to be the child of the marriage. [Subdivi­ belief) that the victim was over the age of 18 years sion (b) refers to those cases where a blood test is a defense to "statutory rape." The burden, establishes that the husband cannot be the father however, to establish this defense is on the defense of the child.] (People v. Zeihm 40 CA 3d 1085 and People v. Hernandez 61 C2d 519). Note: the belief as to the Elements of Incest age of the victim must be not only in good faith, The elements of the crime of incest are: but must also be reasonable. 1. the marriage or sexual intercourse between 2. parties who are related by blood to each 10.9 Spousal Rape other by certain degrees of relationship. Penal Code 262 Rape of Person Who is Spouse of Perpetrator Discussion (a) Rape of a person who is the spouse of a perpetrator is an act of unlawful sexual intercourse Only marriage and sexual intercourse by means of force or fear of immediate and between persons closely related by blood are pro­ unlawfullx>dily injury on the spouse or another, hibited under the above penal code. It does not or where the act is accomplished against the prohibit oral copulation. Lack of knowledge of the victim's will by threatening to retaliate in the relationship is a defense to incest (People v. Koller future against the victim or any other person, and 142 C 621). To be incestuous, there must be a there is a reasonable possibility that the perpetra­ blood relationship. Accordingly, where a father tor will execute the threat. As used in this subdivi­ has sexual intercourse with his adopted daughter, sion "threatening to retaliate" means a threat to while he is guilty of other crimes, he is not guilty kidnap or falsely imprison, or to inflict extreme of incest (People v. Russell 22 CA 3d 330). pain, serious bodily injury, or death. If both parties are over the age of14, and both (b) The provisions of Section 800 shall apply consent to the sexual acts, then both are guilty of to this section; however, there shall be no arrest or incest (People v. Pettis 95 CA 2d 790). prosecution under this section unless the violation of this section is reported to a peace officer having Consanguineous the power to arrest for a violation of this section or to the district attorney of the county in which the Civil Code 4400 lists the following relation­ violation occurred, within 90 days after the day of ships as consanguineous (such close blood rela­ the violation. [Note: Section 8eD refers to the six tives as to make marriage and/or intercourse year statute of limitations.] illegal): 1. natural parents, or any degree of grand­ parents and their children, grandchildren, 10.10 Incest etc.; Penal Code 285 2. uncles or aunts and their nieces and Persons being within the degrees of con­ nephews; and sanguinity within which marriages are declared 3. brothers and sisters and other siblings, by law to be incestuous and void, who intermarry whether whole- blood or half-blood. with each other, or who commit or adultery with each other, are punishable by imprisonment in the state prison.

Evidence Code 621 (a) Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who Rape and Other Sexual Crimes 97

10.11 Penetration by Foreign Object (1) As used in subsection (a) "threatening to retaliate" means a threat to kidnap or falsely Penal Code 289 [Partial] imprison, or inflict extreme pain, serious bodily (a) Every person who causes the penetration, injury or death. however slight, of the genital or anal opening of another person for the purpose of sexual arousal, Elements of Anal or Genital Penetration gratification, or abuse by any foreign object, The elements of the crime of anal or genital substance, instrument, or device when the act is penetration are: accomplished against the victim's will by means of force, violence, duress, menace, or fear of 1. the intentional anal or genital penetration immediate and unlawful bodily injury on the of another victim or another person or where the act is 2. with any object except a "sexual organ," accomplished against the victim's will by threat­ 3. without the lawful consent of the other ening to retaliate in the future against the victim or person. any other person, and there is a reasonable pos­ sibility that the perpetrator will execute the threat, Discussion shall be punished by imprisonment in the state In cases where the victim is a child, lack of prison ... consent is automatically assumed. There is no [Subsections (b) and (c) prohibits such con­ requirement that the accused make the penetration duct on a person incapable of giving consent.] for sexually motivated reasons as long as the acts are intentionally committed (People v. White 179 [Subsection (d) prohibits similar conduct on CA 3d 193). an unconscious person.] [Subsection (e) prohibits such conduct on an 10.12 Sex Acts-Induced by False Representations intoxicated person.] Penal Code 266c Inducing Commission of Sex­ ual Act Through False Representations Creat­ [ Subsection (f) prohibits such conduct where ing Fear the person submits under the belief that the person Every person who induces any other person, committing the act is the spouse of the victim.] except the spouse of the perpetrator, to engage in [Subsection (g) prohibits such conduct where sexual intercourse, penetration of the genital or consent is obtained by threat to use the authority anal openings by a foreign o~ject, substance, of a public official.] instrument, or device, oral copulation, or sodomy when his or her consent is procured by false or [Subsection (h) prohibits such conduct on a fraudulent representation or pretense that is made person under the age of 18.] with the intent to create fear, and which does [Subsection (i) prohibits such conduct by a induce fear, and that would cause a reasonable person over the age of 21 years against a person person in like circumstances to act contrary to the under the age of 16. Note: this offense has a person's free will, and does cause the victim to so greater maximum punishment than the offense act, is punishable by imprisonment in either the under Subsection (h) above.] county jail ... or in the state prison .... As used in this section, "fear" means the fear of unlawful [Subsection G) prohibits such conduct by a physical injury or death to the person or to any person under the age of 14 where the offender is relative of the person or member of the person's more than ten years older than the victim. Note: family. this offense has a greater maximum punishment than the offenses under Sections (h) and (i).] Element of the crime (k) As used in this section, "foreign object, The elements of the crime of inducing the substance, instrument, or device" shall include commission of sexual act through false represen­ any part of the body, except a sexual organ. tation creating fear are: 98 Chapter 10

1. inducing a person, not the spouse of the 1. a lewd or lascivious act upon any part of perpetrator the body of 2. to engage in sexual intercourse or 2. a child under the age of 14, 3. penetration of the genital or anal openings 3. with the specific intent to arouse, appeal by a foreign object or or to gratify the lust or passions or sexual 4. oral copulation, or desires of either party. 5. sodomy Definitions 6. by consent procured by 7. false or fraudulent representation, or Lewd conduct refers to conduct that dis­ 8. pretense made with the intent to and actu­ regards socially accepted constraints. Lascivious ally creating reasonable fear in the victim refers to wanton, lustful conduct. Dissolute refers 9. by such conduct that would deprive a to conduct that is unashamed, lawless, loose in reasonable person of their free will. morals and conduct. For example, dancing in the nude at a party open to the public was considered 10.13 Lewd or Dissolute Conduct as "dissolute" conduct (People v. Scott 113 CA Penal Code 647 [Subsection (a) only.] 778) Every person who commits any of the follow­ Lewd and lascivious act under Section 288 (a) ing acts is gUilty of disorderly conduct, a has been defined as an act which has a tendency to misdemeanor: excite lust, committed with a disregard for sexual (a) Who solicits anyone to engage in or who constraints. It is not necessary that the act be engages in lewd or dissolute conduct in any public sexual in nature (People v. Dontanville 172 CA 3d place or in any place open to the public or exposed 783). to public view. Discussion Penal Code 288 Lewd Act on Child Under 14 Nude sunbathing on Black's Beach in San [Subsection (a) only.] Diego (a beach where nude sunbathing is popu­ (a) Any person who shall willfully and lar), while located in an area open to the public lewdly commit any lewd or lascivious act includ­ was not considered as lewd conduct under Section ing any of the acts constituting other crimes 647 (a) (In re Smith 7 C 3d 362). The court in this provided for in Part 1 of this code upon, or with the case, stated that nudity of this type is not of itself body, or any part or member thereof, of a child lewd conduct. under the age of 14 years, with the intent of Under Section 288 (a), if the victim is under arousing, appealing to, or gratifying the lust or 14 years of age, consent is not an element of the passions or sexual desires of such person or of offense (People v. Dontanville 172 CA 3d 783). such child, shall be guilty of a felony .... The offense may be committed by a mere touching Elements of Lewd or Dissolute Conduct (P C 647 of the body or clothing of the other person, if done (a» with the specific intent to arouse (People v. Roberts 26 CA 3d 585). It is also not necessary The elements of lewd or dissolute conduct that the naked body be touched (People v. Austin under Section 647 (a) are: 111 CA 3d 110). 1. Soliciting, or engaging 2. in lewd or dissolute conduct 10.14 Indecent Exposure 3. in any public place, or 4. in any place open to the public, or Penal Code 314 Indecent Exposure 5. exposed to public view. Every person who willfully and lewdly, either: Elements of Lewd Act on Child 1. Exposes his person, or the private parts The elements of lewd act on child under 14 thereof, in any public place, or in any are: place where there are present other per- Rape and Other Sexual Crimes 99

sons to be offended or annoyed thereby. or, years older. This offense has a greater maximum 2. Procures, counsels, or assists any other punishment than the offenses under Subsections persons to expose himself or take part in (b)(1) and (b)(2).] any model artist exhibition, or to make [Subsection (d) prohibits oral copulation by any other exhibition of himself to public force or fear.] view, or the view of any number of per­ sons, such as is offensive to decency, or is [Subsection (e) prohibits oral copulation by adapted to excite to vicious or lewd any person confined in a state or local confine­ thoughts or acts, is guilty of a misde­ ment facility.] meanor. [Subsection (f) prohibits oral copulation [Last two paragraphs of section dealing with where the other party is unconscious of the nature punishment are omitted.] of the act.] Elements of the Crime of Indecent Exposure [Subsections (g) and (h) prohibits oral copula­ The elements of indecent exposure are: tion with a person who is incapable of giving 1. willful exposure of person or private parts lawful consent.] 2. at a place where other persons are present [Subsection (i) prohibits oral copulation with who may be annoyed, or an intoxicated person.] 3. public view 4. who exposes, procures, counsels, or ass­ [Subsection U) prohibits oral copulation ists in the exposure, where consent is obtained under the false belief S. and the act is offensive to decency or that the person committing the act is the spouse of designed to incite vicious or lewd thoughts the other person.] or acts. [Subsection (k) prohibits oral copulation Discussion where consent is obtained under the threat to use the authority of a public official.] The above elements require willful and lewd conduct on the part of the participant. There is, Definition however, no requirement for any movement or Oral copulation is the act of copulating the manipulation of the body or parts thereof. A mouth of one person with the sexual organ or anus person convicted under this section is required to of another person. register as a sex offender under P C 290. Discussion 10.15 Oral Copulation No specific intent, purpose or motive is Penal Code 288a Oral Copulation necessary to commit this offense. Oral copulation (a) Oral copulation is the act of copulating is not illegal if engaged in private by consenting the mouth of one person with the sexual organ or persons over the age of18. It is a crime, however, anus of another person. if committed by someone confined in a state or local confinement facility or on a victim who is [Subsection (b)(1) prohibits oral copulation unconscious, insane or otherwise unable to give with another person who is under the age of 18.] consent, and this condition is known or should [Subsection (b)(2) prohibits oral copulation have been known by the perpetrator. by a person over the age of21 with another person under the age of 16. This offense has a greater 10.16 Sodomy maximum punishment than the offense under Penal Code 286 Sodomy [Partial] Subsection (b)(1).] (a) Sodomy is sexual contact consisting of [Subsection (c) prohibits oral copulation with contact between the penis of one person and the a person under the age of 14 by a person who is ten anus of another person. 100 Chapter 10

[Subsections (b) through (Ie) are similar to accomplished directly or through the clothing of those for oral copulation noted above.] the person committing the offense . . . . Elements of Sodomy (e) This section shall not be construed to limit or prevent prosecution under any other law The elements of sodomy are: which also proscribes a course of conduct that also 1. sexual contact by penetration of is proscribed by this section. 2. the penis of one person, and 3. the anus of another person 10.18 Sexually Assaulting Animals 4. under one of the prohibited situations or circumstances. Penal Code 286.5 Any person who sexually assaults any animal Discussion protected by Section 597f for the purpose of No specific intent, purpose or motive is arousing or gratifying the sexual desire of the required to commit sodomy. Sodomy requires person is guilty of a misdemeanor. "penetration" not merely "contact" (People v. [Section 597f refers to Animal Neglect and Martinez 188 CA 3d 19 and People v. McElrath protects pets and other domestic animals.] 220 CA 4). Note: any sexual penetration, either penile or 10.17 Sexual Battery oral, completes the offense (People v. Smith 117 CA 2d 648). Penal Code 243.4 Sexual Battery (a) Any person who touches an intimate part 10.19 Registration as Sex Offender of another person while that person is unlawfully restrained by the accused or an accomplice, and if Penal Code 290 requires persons convicted of the touching is against the will of the person sex offenses or sex related crimes to register touched and is for the purpose of sexual arousal, within 14 days of coming into any county or city in gratification, or abuse, is guilty of sexual battery which he or she will reside for any period of time with the chief of police or the sheriff of the county. (b) Any person who touches an intimate part of another person who is institutionalized for CLASSROOM DISCUSS!ON QUESTIONS medical treatment and who is seriously disabled 1. What is the nature of the crime of rape? or medically incapacitated, if the touching is 2. Who is incapable of giving "legal" consentto against the will of the person touched, and if the sexual intercourse? touching is for the purpose of sexual arousal, 3. What are the essential differences between gratification, or abuse, is guilty of sexual battery the various types of rape? 4. Why is the inability by reason of intoxication Cc) Any person who, for the purposes of to fonn a specific intent to rape not a defense sexual arousal, gratification, or abuse, causes to the charge of rape? another, against that person's will while that per­ 5. What act completes the crime of rape? son is either unlawfully restrained by the accused 6. Explain the differences between statutory or an accomplice, or is institutionalized formedi­ rape and unlawful sexual intercourse. cal treatment and is seriously disabled or medi­ 7. What acts constitute incest? cally incapacitated, to masturbate or touch an 8. What constitutes lewd conduct? intimate part of either of those persons or a third 9. What constitutes indecent exposure? person is guilty of sexual battery . . . . 10. Distinguish between sexual battery and rape. Cd) As used in this section, "intimate part" means the sexual organ, anus, groin, or buttocks SELF STUDY QUIZ of any person and the breast of a female .... As TruelFalse used in this section, "touches" means physical 1. Rape is an act of sexual intercourse involving contact with the skin or another person whether consent of all parties. Rape and Other Sexual Crimes 101

2. Some persons are incapable of giving consent 9. Statutory rape is the sexual intercourse with a to sexual intercourse. female under the age of 18 and not the wife of 3. To be considered as unconscious for purposes the perpetrator. of prosecution under PC 261 (4), the victim 10. To be prosecuted for spousal rape, the rape must be completely unaware of the nature of must be reported to the proper authorities the act and in a state of total unconscious. within 90 days after the violation. 4. The essential guilt of rape is the outrage to 11. The statute of limitations for spousal rape is six years. the person and the feelings to the victim. 12. Incest can be committed only by marriage or 5. For rape, the penetration is not an essential sexual intercourse between two people who element. are closely related by blood. 6. Sexual intercourse under PC 261 is consid- 13. Lewd conduct refers to conduct that dis- ered complete with any sexual penetration. regards socially accepted constraints. 7. Consent, even though obtained by fraud, is a 14. To be lewd, the act must be sexual in nature. defense to rape by force or fear. 15. Indecent exposure is not a crime in California 8. An assault is a lessor and included offense of unless the exposure is committed in a public rape. place. ------

Chapterll

Robbery and Extortion Nobody ever commits a crime without doing something stupid. (Oscar Wilde, The Picture of Dorian Gray)

Robbery and Extortion Related Crimes suspended in the air, and used for the transporta­ 1. Robbery (P C 211) tion of persons for hire, every robbery of any 2. Extortion (p C 518) passenger which is perpetrated on any of these 3. Kidnapping for Ransom or Robbery (P C vehicles, and every robbery which is perpetrated 209) [Discussed in Chapter 12.] in an inhabited dwelling house or trailer coach, as 4. Simulating Court Process (p C 526) defined in the Vehicle Code, or the inhabited portion of any other building, is robbery of the ll.t Robbery first degree. (b) All kinds of robbery other than those listed Penal Code 211 Defined in subdivision (a), are of the second degree. Robbery is the felonious taking of personal property in the possession of another, from his LNote: Section 212.5 was passed in 1986 and person or immediate presence, and against his modified in 1987 by the Legislature to overrule in will, accomplished by means of forc~ or fear. part the decision in People v. Beller 172 CA 3d Penal Code 212 Fear Defined 904, which held that robbery and residential robb­ The fear mentioned in Section 211 may be ery were separate substantive crimes. The Legis­ either: lature indicated that there was only one crime of 1. The fear of an unlawful injury to the robbery which is set forth in Section 211 and that person or property of the person robbed, some forms of robbery are more aggravated and or of any relative of his or member of his deserving of greater punishment (Stats. 1986 ch. family; or, 1428, section 6).] 2. The fear of an immediate and unlawful injury to the person or property of anyone Definition of Robbery in the company of the person robbed at the . Robbery at common law was the felonious time of the robbery. taking of personal property in the possession of Penal Code 212.5 First and Second Degree another, from his person or immediate presence, Robbery and against his will, accomplished by force or fear (a) Every robbery of any person who is per­ (Black's Law Dictionary 4th ed., page 1492). forming his or her duties as an operator of any (1) Under the above definition, robbery is an aggra­ bus, taxicab, cable car, streetcar, (2) trackless vated form of theft with the additional element of trolley, or other vehicle, including a vehicle oper­ the taking from the immediate presence and will ated on stationary rails or on a track or rail of the victim. In Califomia, robbery is considered

103 104 Chapter 11 as both a crime against the person and the prop­ possession of a safe that the accused was charged erty (People v. Jones 53 C 58). Robbery is a with taking (Laurel v. Superior Court 255 CA 2d combination of assault and larceny (People v. Blue 292). 161 CA 2d 1). A robbery was held to have been committed in Elements of Robbery the immediate presence of a victim (an employee), The elements of the crime of robbery are: even though the employee was not in charge or had 1. the wrongful taking of personal property immediate control of the items stolen (People v. (including asportation) Arline 13 CA 3d 200). A security guard or night 2. from the possession of another, or watchman has constructive possession of the mer­ 3. from his or her person, or chandise to the same degree as a salesperson 4. from immediate presence (People v. Estes 147 CA 3d 23). In one case, the 5. against the will of the person employee's mother entered the store during the 6. accomplished by means of force or fear. robbery. The accused handed her a bag and ordered her to take the money from the cash Discussion register. A conviction of robbery by taking the To be robbery, the property taken must have at money from the possession of the mother was least some intrinsic (real or true) value which is upheld on appeal (People v. Moore 4 CA 3d 668). subjectto larceny (People v. Stevens 141 C 2d 699). One defendant was convicted of robbery based on In one case, the court held that where the the severance of a standing crop of marijuana money was taken from the "immediate posses­ from property where the other required elements sion" of the victim when the defendant removed were present. The court stated that since the the victim's pants and allowed her brother to look severance and taking of a growing crop is now through the pockets while the defendant had sex subject to larceny, the same property is also sub­ with the victim (People v. Moore 4 CA 3d 668). In ject to robbery (People v. Dillon 34 C 3d 441). another case (People v. Davis 100 CA 179), the defendant pointed a weapon at the cashier in a Neither the value of the property or the movie theater. She ran out the back door. He amount of money taken is material to the robbery entered the ticket booth and took the money. His offense as long as the property has some value or conviction for ro bbery was upheld by the appellate some money was taken (People v. Coleman 8 CA court. 3d 722). The fact that the victim from whose possession the money was taken was not the true owner of the money, is not a defense to the crime ll.3 Force or Fear of robbery. In one case, the victim had earlier The property must be taken by either force or stolen the money from someone else. The court fear. Unless one or the other is used, the crime is held that even a thief could be robbed (People v. not robbery. The particular means, however, by Moore 4 CA 3d 668). which "force" is used or "fear" imposed is not an 11.2 Immediate Presence or Possession element of robbery (In re Michael 39 C 3d 81). Something more, however, than the amount of The term "immediate presence" is broadly force necessary to lift or seize the property is interpreted to include any place within sight or necessary to change the offense from "theft from hearing of the person (People v. Lavender 137 CA a person" to robbery (People v. Morales 49 CA 3d 582). In determining whether or not the property 134). The hasty snatching of a purse without is in the immediate presence of the victim, all resistance may be only larceny if no force was sensory perceptions are used. Actual corporeal used nor fear imposed (People v. Church 116 C. (physical) presence of the victim is not required 300). (People v. Hays 147 CA 3d 534). An attempted robbery was, however, not established where no The force or fear must have been used for the person was identified as being present and in purpose of taking the property, not sQme other Robbery and Extortion 105 reason. Thus, an accused who used force to com­ money one yard or one mile from the presence of mit rape and after the rape took a cigarette from the victim is immaterial insofar as the requirement the victim was not guilty of robbery. This result of asportation is concerned." (People v. Beal3 CA was based on the lack of evidence establishing that 2d 252). In one case, a robbery conviction was the victim was afraid to resist the taking and that upheld where the accused was apprehended by no additional force was used in taking the cigarette police officers while leavi.ng the store with the (People v. Welsh 7 C 2d 209). money. He never got out of the store (People v. LeBlanc 25 CA 3d 576). In one case, during the robbery, two victims were in joint possession of the property. The court It is not necessary that the accused take actual stated that since the central element of robbery is physical possession of the property. The accused the force or fear applied to the individual victim, pointed a weapon at the victim and ordered the two convictions for robbery was appropriate victim to drop his wallet on the ground. The where both victims were in joint possession of the victim did as ordered. When the victim stated that property (People v. Ramos 30 C 3d 553). there was no money in the wallet, the accused ordered him to pick it up and allowed the victim to The degree of fear necessary must be suffi­ leave. The court held that the acts were sufficient cient to cause the victim to comply with the to constitute the crime of robbery since all that unlawful demand for his or her property. It is not was required was the "taking of possession away necessary that terror exists (People v. Borra 123 from the victim and into the control of the taker CA 482). Fear may be inferred from the circum­ . .. ." (People v. Quinn 77 CA 2d 734). The stances surrounding the demand. In one case, the asportation was completed in one case when the victim testified that he did not fear the accused bank clerk was forced to give the money to even though the accused pointed a weapon at him. another bank clerk on orders from the defendant The court in upholding the robbery conviction (People v. Powell 513 CA 3d 101). stated that element of fear could be inferred from the fact that a pistol was pointed at the victim Intent to Steal (People v. Renteria 61 C 2d 497). In another case, u.s the conviction for robbery was upheld despite the Robbery is a specific intent crime since an testimony of the victim that she was not afraid of intent to steal is an essential element of the crime the defendant because she did not think he was (People v. Ford 60 C 2d 772). The intent to steal serious when he pointed a weapon at her (People v. requirement is the same as that for larceny. Harris 65 CA 3d 978). The general rule is that the The necessary intent to steal was missing in degree of fear needed to establish robbery by one case where the money was taken under a good "fear" is: faith claim of right to possession of it (People v. An amount of fear that would cause a Sheasbey 82 CA 459). The "good faith" claim of reasonable person under the same set right to possession need not be "reasonable." The of circumstances to be in fear of his or defendant was charged with attempted robbery for her life, fear or danger of injury or fear taking money from a bar that operated an illegal that his or her property may be injured gambling game. The defendant stated that he was or damaged. only trying to regain money that he had illegally lost in the game. The cour~ said that if the defen­ U.4 Asportation dant in "good faith" believed that he had a right to retake his money, that was a defense to the crime The requirement of asportation (movement) is of robbery. Note: he was, however, convicted of similar to the same element required in the theft assault (People v. Littleton 25 CA 3d 96). crimes. Only slight movement is required. It is not necessary that the property be taken out of the It is not the original intent, but the intent at the physical presence of the victim. As one court time of taking that determines whether or not the stated, "Whether the appellant conveyed the crime is robbery. If in the above gambling case, 106 Chapter 11 the accused while at first intending to retake only Penal Code 522 Extorting Signature to Transfer his money decides at the time of taking to take of Property more than he lost, the crime is robbery. Every person who, by any extortionate means, obtains from another his signature to any In People v. Alvardo (133 CA 3d 1003), a paper or instrument, whereby, if such signature robbery conviction was upheld where the evidence were freely given, any property would be trans­ established that the defendants robbed the victim, ferred, or any debt, demand, charge, or right of not to recover property that they had given him in action created, is punishable in the same manner exchange for inferior drugs, but to "settle the as if the actual delivery of such debt, demand, score." Note: the specific intent to steal can b~ charge, or right of action were obtained. inferred from the circumstances surrounding the taking of the property. Penal Code 523 Written Threat Made to Extort Every person who, with intent to extort any 11.6 Completed Crime of Robbery money or other property from another, sends or delivers to any person any letter or other writing, Robbery is completed when the robber has whether subscribed or not, expressing or imply­ taken possession of the propelty and the element ing, or adapted to imply, any threat such as is of asportation is fulfilled. The intervention of the speCified in section 519, is punishable in the same police before the property had been taken off the manner as if such money or property were actually premises is immaterial as long as the essential obtained by means of such threat. elements are satisfied (People v. Johnson 219 CA 2d 631). Definition of Extortion Common law extortion is defined as taking 11.7 Extortion money or other valuable thing either by compul­ sion, by actual force, or by force or motives Penal Code 518 Defined applied to the will and often more overpowering Extortion is the obtaining of property from and irresistible than physical force (Common­ another, with his consent, or the obtaining of an wealth v. 0' Brien 12 Cush., Mass., 90). Extortion official act of a public officer, induced by wrong­ is popularly known as "." Both extor­ ful use of force or fear, or under the color of tion and robbery are aggravated forms of theft. official right. Extortion, however, is broader than robbery in the Penal Code 519 Fear Induced by Threat following ways: Fear, such as will constitute extortion, may be 1. Extortion does not require a taking of the induced by a threat, either: property from the presence or possession 1. To do an unlawful injury to the person or of the victim. property of the individual threatened or of 2. Extortion does not require that the threat a third person; or, be of immediate harm as in robbery. 2. To accuse the 'individual threatened, or 3. The types of harms that constitute extor­ any relative of his, at member of his tion are much broader than those covered

family, of any crime; or, "_C in the robbery statute. 3. To expose, or to impute to him or them any 4. Robbery pertains only to personal prop­ deformity, disgrace or crime; or, erty, whereas extortion can involve real 4. To expose any secret affecting him or property. them. 5. With extortion, the victim "consents" to the turning over of the property or money. Penal Code 521 When Under Color of Office Every person who commits any extortion Elements of Extortion under color of official right, in cases for which a The elements of the crime of extortion are: different punishment is not prescribed in this 1. The act of obtaining property or money code, is guilty of a misdemeanor. from another, ------

Robbery and Extortion 107

2. with the consent of the other, or whom property was stolen to threaten the thief 3. obtaining an official act of a public officer, with prosecution unless the thief pays for the 4. by inducement through wrongful use of property (People v. Beggs 178 C. 79). force, or The threat "to defame or expose another" 5. fear, or must be of a nature that tends to impute deformity, 6. under color of official right. disgrace or a crime. A threat to make public Discussion certain matters contained in court proceedings which would tend to ruin the character and busi­ Extortion may be committed for the purposes ness of the person threatened was an adequate of obtaining "property" or "an official act of a basis for an extortion conviction (People v. Cad­ public officer." The "property" requirement is man 57 C 562). broadly interpreted. A threat to expose the victim unless the victim withdrew an appeal in a pending The threat to expose a secret must be such that civil law suit was considered "property" in one it is unfavorable to the reputation of the person case (People v. Cadman 57 C 562). Extortion is a exposed or defamed. The secret normally must be crime that involves moral turpitude (In re Coffey unknown to the general public, or some particular 123 C 522). To be exturtion, the threat must imply part thereof, which others might be interested in or express one of the statutory threats listed in obtaining. The damage of the exposure must be Section 519 (People v. Choynski 95 C 640). such that it would likely induce a person through fear to payout money or give up property for the Threats Inducing Fear purpose of avoiding the exposure (People v. Lavine The threats inducing fear may be: 115 CA 289). 1. threat to injure person or property, ~~H;.i1ding Threatening Letters 2. to accuse one of a crime, 3. to defame or expose, or The offense of sending threatening letters 4. to expose a secret. does not require that the threat be apparent on the face of the writing. The prosecution may produce The "fear" must be the controlling factor in evidence of the facts surrounding the writings to consenting to the turning over of the property or establish the nature of the threat. It is enough if the doing an official act. As one court stated' 'the fear writings used language that imply any of the must be so material that the money would not have threats specified in Section 519. This offense is been paid without it" (People v. Turner 22 CA 2d completed at the time that the letter is deposited in 186). No precise words need be used. "Anexperi­ the mail or the writing is delivered. The offense is enced extortionist does not find it necessary to punishable in the same manner as if the property designate specifically what he intends to do as a was actually obtained (People v. Choynski 95 C means of terrifying his prey" (People v. 640). Extortion is not committed by a creditor Oppenheimer 209 CA 2d 413). The use of high­ sending a letter to a debtor threatening to take legal pressure on an elder homeowner by a belligerent action if a debt is not paid (Murray Showcase & and aggressive male which forced the homeowner Fixture Co. v. Sullivan 15 CA 475). to agree to unwanted work at an exorbitant sum was determined to be extortion by one court Obtaining Signature by Threat (People v. Massengale 10 CA 3d 689). This section provides that any transfers of The "threat to accuse one of a crime" is property or right of action transferred under threat extortion (if other elements are present) even if the of extortion is void. In addition, the act is punish­ person is in fact guilty of the crime. It makes no able as extortion, i.e., as if the actual delivery of difference as to the motives of the person making the propCIty or right of action was obtained (Peo­ the threat. Accordingly, a "just" motive for mak­ ple v. Peppercorn 34 CA 2d 603). This crime is ing the threat is normally not a defense to extor­ complete when a signature is obtained (People v. tion. For example, it is extortion for a person from Massengale 10 CA 3d 689). Note: the obtaining of 108 Chapter 11

a written confession regarding a crime is not a the crime of robbery been completed? (Note: violation of this offense, since a confession is facts taken from the case of People v. Price 25 neither property nor an instrument that creates a CA 3d 576). right of action (People v. Kohn 258 CA 2d 368). 3. What degree of force is necessary to con- stitute robbery by force? 11.8 Simulating Court Process 4. Define' 'asportation." 5. Is robbery a specific intent crime? Penal Code 526 Imitation or Pretended Process 6. What are the differences between robbery -Delivery and extortion? Any person who, with the intent to obtain 7. Define' 'immediate presence" for purposes of from another person any money, article or per­ the robbery statutes. sonal property, or other thing of value, (1) delivers or causes to be delivered to (2) the other person SELF STUDY QUIZ any paper, document or written, typed or printed True/False fonn purporting to be an order or other process of 1. Robbery is the felonious taking of real prop­ a court, designed or calculated by its writing, erty from the possession of another. typing or printing, or the arrangement thereof, to 2. Robbery requires that the taking of the prop­ cause or to lead (3) the other person to believe it to erty be by means of force or fear. be an order or other process of a court, when in 3. Robbery of a train conductor is first degree fact such paper, document or writing is not an robbery. order or process of a court, is guilty of a misde­ 4. Robbery of an elderly person is first degree meanor, and each separate delivery ... constitutes robbery. a separate offense. 5. Robbery in California is both a crime against Discussion the person and the property. 6. To be robbery, the property taken must be It is a crime under this section for a debt worth at least $50.00. collector, creditor or attorney to send a document 7. The property must be in the immediate pos­ to a debtor which simulates a legal or judicial session of the owner to be subject to the process or gives the appearance of authorization crime of robbery. by governmental agency for the purposes of col­ 8. To be robbery, the force or fear must be used lecting a debt. for the purposes of taking the property. 9. The requirement of "asportation" is very CLASSROOM DISCUSSION QUESTIONS similar to the same requirement in theft 1. The owner of a store put a bag of money down cases. beside his car and went back into his store to 10. It is necessary that the accused take actual get the keys to the car. When the owner physical custody of the property before the returned, he encountered the defendant who crime of robbery is completed. had the money in one hand and a gun in the 11. Robbery is not a specific intent crime. other. The defendant ordered the store owner 12. Extortion is the obtaining of property from to move away and got into a car and left. Do another by use of force or fear and without the above facts support the offense of robbery the consent of the possessor of the property. or only theft? (Note: facts taken from the case 13. Extortion does not require a taking of prop­ of People v. Perhah 92 CA 2d 430). erty from the immediate presence of the 2. The defendants forced a bank manager at victim. gunpoint to take money from the vault. The 14. Robbery pertains only to personal property, manager then carried the money to the rear of whereas, extortion may also pertain to real the bank in order to give it to the defendants. property. The defendants were apprehended before 15. To be extortion, the threat must be of imme­ receiving the money from the manager. Has diate hann to the victim. Chapter 12

Kidnapping, False Imprisonment and Laws of Arrest If you can't do time, don't do crime. John Morgan, after being sentenced to seven years imprisonment, May 18, 1985.

Kidnapping and False Imprisonment Related or any person in this state, and carries the Crimes person into another country, state, or county, or 1. Kidnapping (P C 207) into another part of the same county, is guilty of 2. False Imprisonment (p C 236) kidnapping. 3. Posing as a Kidnapper (P C 210) (b) Every person, who for the purposes of 4. Kidnapping Child Under 14 (P C 667.85) committing any act defined in Section 288, hires, 5. Kidnapping for Purposes of Sexual persuades, entices, decoys, or seduces by false Offense (p C 667.8) promises, misrepresentations, or the like, any 6. Kidnapping for Ransom or Reward (P C child under the age of 14 to go out of this country, 209) state, or county, or into another part of the same 7. Taking Hostages (P C 210.5) county, is guilty oflddnapping. 8. Malicious Taking of A Child (p C 277) (c) Every person who forcibly takes or arrests 9. Unlawful Detention (p C 278) any person, with a design to ta."'

109 110 Chapter 12 forcible asportation (carrying away) of a person has not given consent and the movement is not from their own county to another (Dix and pursuant to a valid legal order or court process. Sharlot, Basic Criminal Law). In California, the statutory crime of kidnapping requires only the Force movement of a person from one part of county to The force required to constitute the offense is another part. Accordingly, kidnapping by force is sufficient as long as the victim feels compelled to the unlawful, forcible taking of a person against obey, and reasonably fears some kind of harm will his or her will from one place to another. occur if the force is used. Note: no physical force or express threats are needed to effectuate the Elements of Kidnapping movement (Peoplev. Caudillo 21 C3rd 562). If the Under Penal Code 207 (above), there are four kidnapping starts in a vehicle, the fact that the different crimes of kidnapping in California. The initial consent to enter the vehicle was given by elements of each are set forth below: the victim is immaterial as long as the victim is 1. Forcible Kidnapping [P C 207(a)] subsequently restrained during movement of the elements: automobile (People v. Galvin 187 CA 3d 1205). a. the unlawful movement by force If the victim consents to the movement, even b. of a person by another if the consent was obtained by fraud, the crime is c. against the person's will not kidnapping under P C 207 (a), (c) and (d), d. from one place to another Only movements accomplished by force are mate­ 2. Kidnap with Intent to Commit P C 288 rial to the offense offorcible kidnapping under PC felony (crimes against children, lewd and 207. (People v. Stephenson 10 C 3rd 652). lascivious acts) [P C 207(b)] elements: a. hiring, persuading, decoying, entic­ Movement ing, seducing, by false promises, mis­ representations, or the like of The statute does not define the distance b. a child under the age of 14 years required to constitute the offense of kidnapping. c. to go from one place to another The courts have had difficulty with this element. d. with the intent to commit a violation of This difficulty is caused by the common law P C 288 [crimes against children, lewd requirement that the victim be taken to another and lascivious acts] county. P C 207 requires only that the movement 3. Kidnapping with Intent to Take Out of be to "another part of the county." Based on this State [P C 207(c)] elements: phrase, the courts have required that the "move­ a. a forcible taking or arresting of another ment" necessary to complete the offense of kid­ b. with the specific intent to remove the napping must be substantial as opposed to slight person from the state or trivial. c. without legal authority Substantial movement was defined by one 4. Bringing IGdnapped Victim into State [p court as the movement that subjects the victim to a C 207(d)] elements: substantial increase in the risk of harm. A move­ a. the unlawful abduction or taking of a ment of one city block was considered sufficient, victim in another state whereas the movement of the victim across a room b. bringing the victim into this state or from a vehicle to a storefront was not (People v. Discussion Maxwell 94 CA 3d 562). Forcing a victim at gunpoint to walk: one-quarter mile was considered The movement required to constitute the as substantial movement (People v. Stanworth 11 C offense of kidnapping must be unlawful. Move­ 3rd 601). Dragging a victim from the front of a ment is not unlawful if accomplished pursuant to a laundromat to the rear to sexually assault her was legal arrest or with the valid consent of the victim. insufficient movement to constitute kidnapping The term "unlawful" means only that the victim (People v. Thornton 11 C 3rd 738). Note; if all the ------~------

Kidnapping, False Imprisonment and Laws of Arrest 111

elements are present except substantial move­ value, poses as, or in any manner represents ment, then the offense may be an "attempted himself to be a person who has seized, confined, kidnapping. " kidnapped or carried away any person, or who A two-prong test is used to establish forcible poses as, or in any manner represents himself to be kidnapping (People v. Caudillo 21 C 3d 562): a person who holds or detains such person, or who 1. Was the movement by compulsion? poses as, or in any manner represents himself to be 2. Was the movement substantial? the person who has aided or abetted any such act, or who poses as or in any manner represents Intent to Take Victim Out of State himself to be the person who has the influence, The offense of kidnapping with the intent to power, or ability, to obtain the release of such take the victim out of the state (p C 207(c» is person so seized or concealed, kidnapped or car­ designed, in part, to prevent law enforcement ried away, is guilty of a felony .... officers from unlawfully taking suspects out of the Nothing in this section prohibits any person state to avoid extradition laws. For example, if the who in good faith believes that he can rescue any police from another state locate a person wanted in person who has been seized, confined, inveigled, that state living in California, they cannot cross enticed, decoyed, abducted, concealed, kid­ state lines and take the person by force out of napped or carried away, and who has had no part California without going through the required in, or connection with, such confinement, inveig­ legal process. ling, decoying, false abducting, concealing, kid­ napping, or carrying away, from offering to rescue 12.2 False Imprisonment or obtain the release of such person monetary Penal Code 236 False Imprisonment Defined consideration or other thing of value. False imprisonment is the unlawful violation of the personal liberty of another. 12.4 Kidnapping for Purposes of Commit­ ting Sexual Offense Elements of False Imprisonment Penal Code 667.8 provides for a sentence The elements of false imprisonment are: enhancement if convicted of kidnapping for the 1. the unlawful violation purposes of committing sexual offense. 2. of the personal liberty of another Discussion 12.5 Kidnapping Child Under 14 False imprisonment is always a lessor and Penal Code 667.85 Prison Term for Kidnapping included offense of the offense of kidnapping Child Under 14 Years (People v. Maxwell 94 CA 3d 562). False Any person convicted of a violation of Section imprisonment is a misdemeanor unless it is com­ 207, who kidnapped or carried away any child mitted by; violence, menace, fraud or deceit. Ifso under the age of 14 years with the intent to committed, it is a felony (p C 237). permanently deprive the parent or legal guardian custody of that child, shall be punished by an False imprisonment, unlike forcible kidnap­ additional term of five years. ping, is not considered an "inherently dangerous felony" by the courts. Accordingly, the felony­ 12.6 Kidnapping for Ransom, Extortion or murder rule does not apply (People v. Henderson Robbery 19 C 3d 86). Penal Code 209 Kidnapping for Ransom or Extortion 12.3 Posing as Kidnapper (a) Any person who seizes, confines, invei­ Penal Code 210 Posing as Kidnapper gles, entices, decoys, abducts, conceals, kidnaps Every person who for the purposes of or carries away any individual by any means obtaining any ransom or reward, or to extort or whatsoever with intent to hold or detain, or who exact from any person, any money or thing of holds or detains, such individual for ransom, 112 Chapter 12 reward or to commit extortion or to exact from 12.7 Child Abduction another person who aids or abets any such act, is Penal Code 277 Punishment for Taking Minor guilty of a felony and upon conviction thereof From Person or Public Agency shall be punished . .. . In the absence of a court order determining (b) Any person who kidnaps or carries away rights of custody or visitation to a minor child, any individual to commit robbery shall be every person having a right of custody of the child punished by imprisonment in the state prison for who maliciously takes, detains, conceals, or life with the possibility of parole. entices away that child within or without the state, Discussion without good cause, and with the intent to deprive the custody right of another person or a public Unlike forcible kidnapping (which is a general agency also having a custody right to that child intent crime), kidnapping for ransom, reward, or shall be punished by imprisonment in the county extortion is a specific intent crime. To be an jail ... or by imprisonment in state prison .... offense under this section, at the time of the A subsequently obtained court order for kidnapping, the offender must commit the offense custody or visitation shall not affect the applica­ with the specific intent to either rob, extort or tion of this section. obtain a ransom or reward. For purposes of this section, "a person having To be guilty of kidnapping for the purposes of a right of custody" means the legal guardian of the robbery, there must be substantial movement sim­ child or a person who has a parent and child ilar to that required for forcible kidnapping under relationship with the child pursuant to Section 197 PC 207. The movement need not, however, be of the Civil Code. related to the same victim as the robbery is as long as the kidnapping was accomplished for the pur­ Penal Code 278 Taking Minor From Parent or poses of robbery. For example, if the accused robs Guardian a storeowner, then kidnaps a customer in order to Every person, not having a right of custody, assist in his escape; he is guilty of kidnapping for who maliciously takes, detains, conceals, or the purposes of committing robbery. entices away, any minor child with intent to detain or conceal that child from a person, guardian, or The offense oflddnapping for the purposes of public agency having the lawful charge of the ransom or extortion, unlike forcible robbery, does child shall be punished by imprisonment in the not require any movement. Mere holding the state prison ... or ... in a county jail. person with the specific intent to obtain payment Penal Code 278.5 Concealment, Detention, of a ransom or reward or to commit extortion is Taking or Retaining of Child in Violation of sufficient to constitute the offense. Custody Order Bodily Harm (a) Every person, who in violation of the physical custody or visitation provisions of a Under P C 209, the offender is subject to custody order, judgment, or decree, takes, greater punishment if the victim suffers "bodily detains, conceals, or retains the child with the harm." "Bodily halm" for the purposes of this intent to deprive another person of his or her rights punishment enhancement exists whenever the vic­ to physical custody or visitation shall be punished tim suffers some degree of bodily trauma. It does by imprisonment in the state prison ... or ... in not need to be serious injury. A cut requiring county jail .. , . stitches or a rape is sufficient to constitute' 'bodily (b) Every person who has a right to physical harm." A mere nose bleed is not (People v. custody of or visitation with a child pursuant to an Schoenfield 111 CA 3d 671). The harm required to order, judgment, or decree of any court which constitute "bodily harm" is less than "great grants another person, guardian, or public agency bodily harm" required in other penal code provi­ right to physical custody of or visitation with that sions (People v. Caudillo 21 C 3d 562). child, and who within or without the state detains, Kidnapping. False Imprisonment and Laws of Arrest 113 conceals, takes, or entices away that child with the result of a court order or the "natural" right of a intent to deprive the other person of that right to parent. It is also a crime under the above sections custody or visitation shall be punished by if the person taking the child has some right to imprisonment in the state prison ....or ... .in the custody, but violates the visitation periods or county jail .... rights (terms) of the custody order, judgment or decree. For example, in one case the father was Penal Code 279 Concealment or Detention of convicted of a violation of Section 278.5 (felony) Child in Violation of Custody Order •... even though he had custody 50 percent of the time. (a) A peace officer investigating a report of a In this case, the father took the child and moved to violation of Section 277,278, or 278.5 may take a another state where he concealed the location of minor child into protective custody if it reasonably the child from the child's mother (People v. Lortz appears to the officer that any person unlawfully 137 CA 3d 363). will. flee the jurisdictional territory with the minor child. If the taking is for "good cause, " there is no (b) A child who has been detained or con­ violation of the above sections. "Good cause" for cealed shall be returned to the person, guardian, the purposes of these sections is defined as a or public agency having lawful charge of the child, "good faith belief' that the taking, detaining, or to the court in which a custody proceeding is concealing, or enticing away of the child is neces­ pending, or to the probation department of the sary to protect the child from immediate bodily juvenile court in the county in which the victim injury or emotional harm. In some situations, a resides. person may be convicted under Section 277 as a (c) The offenses enumerated in Sections 277, substitute for attempted child molestation charges. 278, and 278.5 are continuous in nature, and For example, if the offender entices the child to continue for so long as the minor child is con­ another location for the purposes of sexual molest­ cealed or detained. ing, but does not complete the offense of child (d) Any expenses incurred in returning the molesting, the movement of the child by the child shall be reimbursed as provided in Section enticement of the offender may constitute a viola­ 4605 of the Civil Code. Those expenses, and costs tion of Section 277. reasonably incurred by the victim, shall be assessed against any defendant convicted of a 12.8 Laws of Arrest violation of Section 277,278 or 278.5. (e) Pursuant to Sections 27 and 778, violation Penal Code 834 Who May Make and Acts of Section 277, 278 or 278.5 is punishable in Constituting California, whether the intent to commit the An arrest is taking a person into custody, in a offense is formed within or without the state, if the case and in the manner authorized by law. An child was a resident of California or present in arrest may be made by a peace-officer or by a California at the time of the taking, or if the child private person. thereafter is found in California. Penal Code 834a Duty to Refrain From Resist­ Discussion ing Arrest In kidnapping, the victim is forced to go with If a person has knowledge, or by the exercise the offender. Child stealing, however, is a crime of reasonable care, should have knowledge, that against the person with the right to custody, and he is being arrested by a peace officer, it is the therefore, the consent of the child is irrelevant. duty of such person to refrain from using force or any weapon to resist such arrest. Sections 277, 278 and 278.5 makes it a crime to maliciously take, detain, conceal or entice a Penal Code 835 Restraint limited to Necessity child away from the person or agency who has the An arrest is made by an actual restraint of the legal right to custody. The right to lawful custody person, or by submission to the custody of an in the other person or agency may exist as the officer. The person arrested may be subjected to 114 Chapter 12

such restraint as is reasonable for his arrest and or private person to arrest anyone committing or detention. attempting to commit a public offense in the Penal Code 835a Use of Reasonable Force to presence of such . Effect Arrest Penal Code 839 Summoning Assistance Any peace officer who has reasonable cause Any person making an arrest may orally sum­ to believe that the person to be arrested has mon as many persons as he deems necessary to aid committed a public offense may use reasonable force to effect the arrest, to prevent the escape or him therein. to overcome resistance. Penal Code 840 Time of Day Arrest May be A peace officer who makes or attempts to Made make an arrest need not retreat or desist from his An arrest for the commission of a felony may efforts by reason of the resistance or threatened be made on any day and at any time of the day or resistance of the person being arrested; nor shall night. An arrest for the commission of a misde­ such officer be deemed an aggressor or lose his meanor or an infraction cannot be made between right to self-defense by the use of reasonable force the hours of 10 o'clock p.m. of any day and 6 to effect the arrest or to prevent escape or to o'clock a.IIi. of the succeeding day, unless: overcome resistance. (1) The arrest is made without a warrant Penal Code 836 Arrest Under Warrant-Peace pursuant to Section 836 or 837. Officer (2) The arrest is made in a public place. A peace officer may make an arrest in obe­ (3) The arrest is made when the person is in dience to a warrant, or may, pursuant to the custody pursuant to another lawful arrest. authority granted to him by the Provisions of (4) The arrest is made pursuant to a warrant Chapter 4.5 (commencing with Section 830) of which, for good cause shown, directs that it may Title 3 of Part 2, without a warrant, arrest a be served at any time of the day or night. person: 1. Whenever he has reasonable cause to Penal Code 841 Notice of Authority and Intent believe that the person to be arrested has to Arrest committed a public offense in his The person making the arrest must inform the presence. person to be arrested of the intention to arrest him, 2. When a person arrested has committed a of the cause of the arrest, and the authority to felony, although not in his presence. make it, except when the person making the arrest 3. Whenever he has reasonable cause to has reasonable cause to believe that the person to believe that the person to be arrested has be arrested is actually engaged in the commission committed a felony, whether or not a fel­ of or an attempt to commit an offense, or the ony has in fact been committed. person to be arrested is pursued immediately after its commission, or after an escape. Penal Code 837 Arrest by Private Person A private person may arrest another: The person making the arrest must, on request 1. For a public offense committed or of the person he is arresting, inform the latter of attempted in his presence. the offense for which he is being arrested. 2. When the person arrested has committed a felony, although not in his presence. Penal Code 842 Showing Warrant on Demand 3. When a felony has been in fact committed, An arrest by a peace officer acting under a and he has reasonable cause for believing warrant is lawful even though the officer does not the person arrested to have committed it. have the warrant in his possession at the time of Penal Code 838 Arrest for Acts in Presence of the arrest, but if the person arrested so requests it, Magistrate the warrant shall be shown to him as soon as A magistrate may orally order a peace-officer practicable. Kidnapping, False Imprisonment and Laws of Arrest 115

Penal Code 843 Overcoming Resistance of Pre­ (Payton v. U.S. 445 U.S. 573). An example venting Escape of exigent circumstances is an arrest made When the arrest is being made by an officer in a dwelling without a warrant if there is under the authority of a warrant, after infonnation probable cause to believe that the suspect of the intention to make the arrest, if the person to inside is anned and is likely to use the be arrested either fleas or forcibly resists, the weapon (James v. Superior Court 87 CA 3d officer may use all necessary means to effect the 985). arrest. 4. Refusing to aid and assist a unifonned peace officer in making an arrest is a Discussion misdemeanor (p C 150). 5. Forcible freeing of a prisoner from the The above Penal Code provisions regarding lawful custody of the arresting party is a the "laws of arrest" are generally self-explana­ felony (p C 4550). tory. Some of the key concepts, however, are 6. While a peace officer may use a reason­ restated below: able amount of force to make an arrest, 1. Nonnally, a peace officer may arrest with­ deadly force may only be llsed in the out a warrant for misdemeanor only when protection of life (Peterson v. City of Long he or she has probable cause to believe that Beach 24 C 3d 238). the suspect committed the crime in the presence of the peace officer. 2. A private person may arrest only when a CLASSROOM DISCUSSION QUESTIONS crime has been committed or attempted. A 1. Explain the differences between false peace officer may arrest when he or she imprisonment and kidnapping for purposes has probable cause to believe that an of ransom. offense has been committed. 2. In which kidnapping offenses is movement 3. A person has a duty to refrain from resist­ required? ing an arrest by a peace officer. It is not a 3. What is meant by the tenns "consent" and defense that the peace officer had no "without free will?" authority to arrest (p C 834a). 4. When maya peace officer arrest without a warrant? Additional Arrest Provisions 5. When maya private person arrest without a warrant? Listed below are some additional arrest provi­ 6. When may a police officer use deadly force to sions that pertain to the "laws of arrest:" arrest a suspect? 1. A juvenile may be arrested without a war­ 7. What acts constitute an arrest? rant for a misdemeanor even if it was not 8. What constitutes sufficient movement for committed in the peace officer's presence kidnapping crimes? (Welfare and Institutions Code, Section 625). 2. A peace officer may arrest without a war­ SELF STUDY QUIZ rant a person who has committed an True/False a:ssault or battery on school property dur­ 1. Forcible kidnapping in California requires ing school hours (even though it was not that the victim be moved to at least another committed in the presence of the peace county. officer) ( P C 243.5). 2. To be kidnapping in California, the victim 3. As a general rule, a person may not be must be taken in California. arrested inside a dwelling unless there is 3. Consent is a valid defense to forcible an arrest warrant, consent to enter the kidnapping. dwelling is given, or emergency circum­ 4. The movement necessary to constitute forc­ stances (exigent circumstances) exist ible kidnapping must be unlawful. 116 Chapter 12

5. If consent is obtained by fraud, the offense 13. A person may conceal a child from the person may be forcible kidnapping. with legal rights to custody without commit­ 6. A two-prong test is often used to determine if ting a crime if there is "good cause" for the forcible kidnapping has been committed. concealment. 7. False imprisonment is always a felony in 14. A private person has no right or authority to California. arrest another in California. 8. False imprisonment involves the unlawful 15. A peace officer may use deadly force to effect an arrest. violation of the personal liberty of another. 16. A peace officer may never effect a warrant­ 9. False imprisonment is a lessor and included less arrest at night for a misdemeanor. offense of forcible kidnapping. 17. A citizen may legally resist an arrest by a 10. Posing as a kidnapper is a crime in peace officer if the arrest is not legal. California. 18. A private person may not assist a peace 11. Kidnapping for a ransom, like forcible kid­ officer in making an arrest. napping, requires movement to establish the 19. A person being arrested has a right to know offense. why he or she is being arrested. 12. Kidnapping for purposes of robbery is a 20. A person may be arrested in a private dwell­ specific intent crime. ing for a felony without a warrant. Chapter 13 Crimes Against Public Decency, Morality and Public Peace I only wish that we could have a code ofpractice for the criminals. (Baroness Phillips House of Lords, July, 1984)

Related Crimes 21. Chain Letters (P C 327) 22. Organized Crime Bill (P C 186.2) 1. Sale or Distribution of Obscene Matter (P C 311.2) 13.1 Historical and Constitutional 2. Making, Developing, Exchanging Sex Developments Films of a Child (P C 311.3) U.S. Constitution, Amendment I (adopted 1791) 3. Employment of Minors For Sale or Dis­ Congress shall make no law respecting an tribution of Obscene Matter (P C 311.4) establishment of religion, or prohibiting the free 4. Advertisements, Promotion, etc., of exercise thereof; or abridging the freedom of Obscene Matter (p C 311.5) speech, or of the press. " . 5. Participating in Obscene Live Conduct (P C 311.6) Discussion 6. Purchaser Required to Receive Obscene Historically, obscenity and similar laws invol­ Matter as A Condition of Sale (P C 311. 7) ving public decency and morality have had prob­ 7. Distribution of Harmful Matter to Minor lems with three constitutional principles: (P C 313.1) 1. the freedom of speech under the First 8. Residing in House of ill-Fame (P C 315) Amendment, 9. Keeping Disorderly Houses (P C 316) 2. the void for vagueness doctrine (Winters v. 10. Pimping (P C 266h) New York 333 U.S. 507), and 11. Pandering (P C 266i) 3. the constitutional right of privacy (Stanley 12. Abduction for Purposes of Prostitution v. Georgia 394 U.S. 557). (P C 267) 13. Bigamy (P C 281) Free Speech 14. Abortion (p C 274) Often the defense of "free speech" is raised 15. Incest (p C 285) [Discussed in Chapter when dealing with obscene matters. In Roth v. 10.] United States (354 U.S. 476) decided by the U.S. 16. Sodomy (p C286) [Discussed in Chapter Supreme Court in 1957, the Court held that 10.] obscenity was not protected by the First Amend­ 17. Indecent Exposure (P C 314) [Discussed ment. The present standard for determining what in Chapter 10.] constitutes obscenity is based on the 1973 U.S. 18. Lotteries (P C 321) Supreme Court case of Miller v. California (413 19. Bingo Games (p C 326.5) U.S. 15). Those standards are reflected in the 20. Slot Machines (p C 330.1) obscenity statutes listed later in this chapter.

117 118 Chapter 13

Vagueness now uses the "local community standards" ap­ proach in this area. As Justice Reed stated in Winters v. New York (333 U.S. 507): "It is settled that a statute so vague District Attorney's Charging and indefmite, in fOIm and as interpreted, as to 13.3 Considerations peImit within the scope of its language the punish­ ments of incidents fairly within the protection of Traditionally, district attorneys have had the guarantee of free speech is void on its face." major practical problems in deteImining whether Mr. Justice Reed, also, noted the difficulty of or not to charge and prosecute obscenity and defining crimes by words well understood similar types of crimes. Those problems include: through long use in the criminal law (i.e. obscene, 1. Obscenity and decency cases are difficult lewd, lascivious, filthy, indecent or disgusting) and expensive to prosecute. Each case will leaves a person uncertain as to the kind of pro­ take a considerable portion of a DA's lim­ hibited conduct covered by the statute. ited resources. To overcome the above objections, the stat­ 2. Prosecution has, in the past, had minimal effect in reducing the availability of utes involving obscenity and similar conduct are obscene matter or little effect on stopping required to be as precise as practical. For this prostitution in the community. reason, these statutes are very lengthy and may Public feeling regarding obscenity and appear to be unnecessarily repetitious. 3. similar cases are nOImally very strong Privacy toward prosecution. The Supreme Court in Stanley v. Georgia (394 As indicated by the above problems, the dis­ U.S. 557) stated: "Whatever may be the justifica­ trict attorney normally has a difficult and unpopu­ tions for other statutes regulating obscenity, we do lar choice involved in making the decision to not think they reach into the privacy of one's own prosecute or not to prosecute. home. If the first amendment means anything, it means a State has no business telling a man, 13.4 Obscenity sitting alone in his own home, what books he may read or what f!.lms he may watch" This right of Penal Code 311 Definitions privacy, however, does not protect the public (a) "Obscene matter" means matter taken as exhibition of obscene matter nor the involvement a whole, the predominant appeal of which to the of minors (Paris Adult Theatre v. Slaton 413 U.S. average person, applying contemporary community 49). standards, is to prurient interest, meaning a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole 13.2 Community Standards goes beyond customary limits of candor in The test of obscenity is its violation of "con­ description or representation of such matters; and temporary standards." The prosecution has the is matter which taken as a whole lacks significant burden of proving what the standards are and that literacy, artistic, political, educational, or scien­ the matter violates those standards. Since there are tific value. different standards in different parts of the coun­ (1) The predominant appeal to prurient inter­ try, this creates a problem in deteImining which est of the matter is judged with reference to standards apply. The obscenity standards for average adults unless it appears from the nature of Fresno, California are quite different from the the matter or the circumstances of its dissemina­ obscenity standards for New York City. Two tion, distribution or exhibition, that it is designed approaches that have historically been used are for clearly defmed deviant sexual groups, in which the "local community standards" and the case the predominant appeal of the matter shall be "national standards." California, however, as the judged with reference to its intended recipient result of a 1988 amendment to the Penal Code, group. Crimes Against Public Decency, Morality and Public Peace 119

(2) In prosecutions under this chapter, where average adults unless it appears from the nature of circumstances of production, presentation, sale, the conduct or the circumstances of its produc­ distribution, or indicate that matter is tion, presentation or exhibition, that it is designed being commercially exploited by the defendant for for clearly defmed deviant sexual groups, in which. the sake of its prurient appeal, that evidence is case the predominant appeal of the conduct shall probative with respect to the nature of the matter be judged with reference to its intended recipient and canjustify the conclusion that the matter lacks group. significant literary, artistic, political, educational, (2) In prosecutions under this chapter, where or scientific value. circumstances or production, presentation adver­ (3) In detennining whether the matter taken tising, or exhibition indicate that live conduct is as a whole goes substantially beyond customary being commercially exploited by the defendant for limits of candor in description or representation of the sake of its prurient appeal, that evidence is such matters, the fact that the defendant knew that probative with respect to the nature of the conduct the matter depicts as persons under the age of 16 and can justify the conclusion that the conduct years engaged in sexual conduct, as defined in (c) lacks significant literary, artistic, political, educa­ of Section 311.4, is a factor which can be consid­ tional, or scientific value. ered in making that detennination. (3) In detennining whether the live conduct (b) "Matter" means any book, magazine, taken as a whole goes substantially beyond newspaper or other printed or written material or customary limits of candor in description or repre­ any picture, or other pictorial representation or sentation of such matter, the fact that the defen­ any statue or other figure, or any recording, dant knew that the live conduct depicts a person transcription or mechanical, chemical or electri­ under the age of 16 years engaged in sexual cal reproduction or any other articles, equipment, conduct, as defined in subsection (c) of Section machines or materials. 311.4, is a factor which can be considered in (c) "Person" means any individual, part­ making that determination. nership, finn, association, corporation, or other legal entity. 13.5 Sale of Obscene Matter (d) "Distribute" means to transfer posses­ sion of, whether with or without consideration. Penal Code 311.2 Sale or Distribution of (e) "Knowingly" means being aware of the Obscene Matter character of the matter or live conduct. (a) Every person who knowingly sends or (f) "Exhibit" means to show. causes to be sent, or brings or causes to be (g) "Obscene live conduct" means any phys­ brought, into this state for sale or distribution, or ical human body activity, whether performed or in this state possesses, prepares, publishes, or engaged in alone or with other persons including prints, with intent to distlibute or to exhibit to but not limited to singing, speaking, dancing, others, or who offers to distribute, distributes, or acting, simulating, or pantomiming, where, taken exhibits to others, any obscene matter is for a first as a whole, the predominant appeal of such con­ offense guilty of a misdemeanor ... duct to the average person, applying contempo­ (b) Every person who knowingly sends or rary statewide standards is to prurient interest, causes to be sent, or brings or causes to be meaning a shameful or morbid interest in nudity, brought, into this state for sale or distribution, or sex, or excretion; and is conduct which taken as a in this state possesses, prepares publishes, whole goes substantially beyond customary limits develops, duplicates, or prints, with intent to of candor in description or representation of such distIibute or to exhibit to, or exchanges with, matters; and is conduct which taken as a whole others for commercial consideration, any obscene lacks significant literary, artistic, political, educa­ matter, knowing that the matter depicts a person tional, or scientific value. under the age of 18 years personally engaging in or (1) The predominant appeal to prurient inter­ personally simulating sexual conduct, as defined est of the conduct is judged with reference to in Section 311.4 is guilty of a felony . . . . 120 Chapter 13

(c) Every person who knowingly sends or 13.6 Child Sex Films causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or Penal Code 311.3 Sex Films, etc. of Child in this state possesses, prepares, publishes, (a) A person is guilty of sexual exploitation of develops, duplicates, or prints, with intent to a child when he or she knowingly develops, dupli­ distribute or to exhibit to, or exchanges with, a cates, prints, or exchanges any film, photograph, person 18 years of age or older any matter, know­ video tape, negative, or slide in which a person ing that the matter depicts a person under the age under the age of 14 years is engaged in an act of of 17 years personally engaging in or personally sexual conduct. simulating sexual conduct, as defined in Section 311.4 is guilty of a misdemeanor .... It is not (b) As used in this section "sexual conduct" necessary to prove commercial consideration or means any of the following: that the matter is obscene in order to establish a (1) Sexual intercourse, including genital-gen­ violation of this subdivision. If a person has been ital, oral-genital, anal-genital, or oral-anal, previously convicted of a violation of thIs subdivi­ whether between persons of the same or opposite sion, he or she is guilty of a felony. sex or between humans and animals. (d) Every person who knowingly sends or (2) Penetration of the vagina or rectum by causes to be sent, or brings or causes to be any object. brought, into this state for sale or distribution, or (3) , for the purposes of sexual in this state possesses, prepares, publishes, stimulation of the viewer. develops, duplicates, or prints, witt intent to (4) Sadomasochistic abuse for the purpose of distribute or to exhibit to or to exchange with, a sexual stimulation of the viewer. person under 18 years of age any matter, knowing (5) Exhibition of the genitals, pubic or rectal that the matter depicts a person under the age of 17 areas of any person for the purpose of sexual years personally engaging in or personally sim­ stimulation of the viewer. ulating sexual conduct, as defined in Section (6) Defalcation or urination for the purpose 311.4, is guilty of a felony . .. . of sexual stimulation of the viewer. (e) Sulxlivisions (a) and (d), inclusive, shall (c) Subdivision (a) shall not apply to the not apply to the activities of law enforcement and activities of law enforcement and prosecution prosecuting agencies in the investigation and agencies in the investigation and prosecution of prosecution of criminal offenses or to legitimate medical, scientific, or educational activities, or to criminal offenses or to legitimate medical, scien­ lawful conduct between spouses. tific, or educational activities, or to lawful con­ (t) This section shall not apply to matter duct between spouses. which depicts a child under the age of 18, which (d) Every person who violates sulxlivision (a) child is legally emancipated, including lawful is punishable by a fine ... or by imprisonment in conduct between spouses when one or both are county jail .. , or by both a fine and imprison­ under the age of 18. ment. If such person has been previously con­ victed of a violation of sulxlivision (a) or any Discussion section of this chapter, he or she is punishable by imprisonment in the state prison. The offenses involving the sale or distribution of obscene matter requires that the offender (e) The provisions of this section shall not "knowingly" distribute or sale obscene matter. apply to an employee: of a commercial film The knowledge required is that of' 'being aware of developer who is acting within the scope of his the character of the matter" (36 So. Cal. L. Rev. employment and in accordance with the instruc­ 537). As long as the offender is aware of the tions of his employer, provided that the employee character of the matter, there is no requirement has no financial interest in the commercial that he or she recognize it as obscene. developer by which he is employed. Crimes Against Public Decency, Morality and Public Peace 121

13.7 Employment of a Minor for Sale or (e) This section does not apply where the Distribution of Obscene Matter minor is legally emancipated, including lawful conduct between spouses when one or both are Penal Code 311.4 Employment of Minor for Sale under the age of 17. or Distribution of Obscene Matter (f) In every prosecution under this section (a) Every person who, with knowledge that a involving a minor under the age of 14 years at the person is a minor, or who, while in possession of time of the offense, the age of the victim shall be any facts on the basis of which he or she should pled and proven for the purpose of the enhanced reasonably know that the person is a minor, hires, penalty provided in Section 647 a. Failure to plead employs, or uses the minor to do or assist in doing and prove that the victim was under the age of 14 any of the acts described in Section 311.2 is for a years at the time of the offense shall not bar first offense, guilty of a misdemeanor. . . . prosecution under this section if it is proven that (b) Every person who, with knowledge that a the victim was under the age of18 years at the time person is a minor under the age of 17 years, or of the offense. who, while in possession of any facts on the basis of which he or she should reasonably know that 13.8 Advertising of Obscene Matter the person is a minor under the age of 17 years, knowingly promotes, employs, uses, persuades, Penal Code 311.5 Advertisement, Promotion, induces, or coerces a minor under the age of 17 etc. of Obscene Matter years, or any parent or guardian of a minor under Every person who writes, creates, or solicits the age of 17 years under his or her control who the publication or distribution of advertising or knowingly permits the minor, to engage in or other promotional material, or who in any manner assist others to engage in either posing or model­ promotes the sale, distribution, or exhibition of ing alone or with others for purposes of preparing matter represented or held out by him to be a film, photograph, negative, slide, or live perfor­ obscene is guilty of a misdemeanor. mance involving sexual conduct by a minor under the age of 17 years alone or with other persons or 13.9 Participating in Obscene Live Conduct animals, for commercial purposes, is guilty of a felony .... Penal Code 311.6 makes it a misdemeanor for (c) [This subdivision is similar to subdivision any person who knowingly engages or participates (b) above except it is not necessary to prove a in, manages, produces, sponsors, presents or commercial purpose. The offense is still a felony, exhibits obscene live conduct to or before an but the range of punishment is less.] assembly or audience consisting of at least one (d) As used in subdivisions (b) and (c), "sex­ person or spectator in any public place or in any ual conduct" means any of the following, whether place exposed to the public view. It does not matter actual or simulated: sexual intercourse, oral copu­ whether or not an admission fee is charged. lation, anai intercourse, anal-oral copulation, masturbation, bestiality, sexual sadism, sexual 13.10 Requiring Purchaser to Receive masochism, penetration of the vagina or rectum Obscene Matter by any object in a lewd or lascivious manner, exhibition of the genitals, pubic, or rectal area for Penal Code 311.7 makes it a misdemeanor to the purposes of sexual stimulation of the viewer, require as a condition of the sale, allocation, any lewd or lascivious sexual act as defined in consignment, or delivery for resale of any books, Section 288, or excretory functions performed in papers, magazine, etc, that the purchaser also a lewd or lascivious manner, whether or not any of accept or receive any obscene matter. It is also a the above conduct is performed alone or between misdemeanor under this section to deny or members of the same or opposite sex or between threaten to deny or to revoke or threaten to revoke humans and animals. An act is simulated when it a franchise by reason of the failure of any person gives the appearance of being sexual conduct. to accept obscene matter. 122 Chapter 13

13.11 Defenses to Obscenity Charges (b) Every person who misrepresents himself to be the parent or guardian of a minor and thereby Penal Code 311.8 Defenses causes the minor to be admitted to an exhibition of (a) It shall be a defense in any prosecution for any harmful matter is guilty of a misdemeanor. a violation of tins chapter that the act charged was (c) Any person who, witllin 500 meters of committed in aid oflegitimate scientific or educa­ any elementary school, junior high school, high tional purposes. school, or public playground, or any part thereof, (b) It shall be a defense in any prosecution for knowingly sells or offers to sell, in any coin or a violation of tllis chapter by a person who know­ slug operated vending machine or mechanically or ingly distributed any obscene matter by the use of electronically controlled vending machine which telephone facilities to any person under the age of is located on a public sidewalk any harmful matter 18 years that the defendant has taken either of the displaying in public view photographs or pictorial following measures to restrict access to the representations of the commission of the following obscene matter by persons under 18 years of age: acts, is guilty of a misdemeanor: sodomy, oral (1) Required the person receiving the obscene copulation, sexual intercourse, masturbation, bes­ matter to use an authorized access or identifica­ tiality, or a photograph or an exposed penis in an tion code, as provided by the information erect and turgid state. provider, before transmission of the obscene mat­ Penal Code 313(a) Definitions ter begins, where the defendant has previously (a) "Harmful matter" means matter taken as a issued the code by mailing it to the applicant, whole, the predominant appeal of which to the therefore after taking reasonable measures to average person, applying contemporary statewide ascertain that the applicant was 18 years of age or standards, is to prurient interest, meaning a older and has established a procedure to imme­ shameful or morbid interest in nudity, sex, or diately cancel the code of any person after receiv­ excretion, and is patently offensive to the prevail­ ing notice, in writing or by telephone, that the ing standards in the adult community as a whole code has been lost, stolen or used by persons with respect to what is suitable material for under the age of 18 years or that the code is no minors, and lacks significant literary, artistic, longer desired. political, educational, or scientific value for (2) Required payment by credit card before minors .... transmission of the matter. (c) Any list of applicants or recipients com­ 13.13 Pimping and Pandering piled or maintained by an information-access ser­ Penal Code 266h Pimping vice provider for the purposes of compliance with Any person who, knowing another person is a subdivision (b) is confidential and shall not be prostitute, lives or derives support or maintenance sold or otherwise disseminated except upon the in whole or in part from the eamings or proceeds order of the court. of the persO'1'S prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or 13.12 Distribution of Harmful Matter to other place where prostitution is practiced or Minor allowed, or who solicits or receives compensation Penal Code 313.1 for soliciting for the person is gUilty of pimping, a (a) Every person who, with knowledge that a felony .... person is a minor, or who fails to exercise reason­ Penal Code 266i Pandering able care in ascertaining the true age of a minor, Any person who: (a) procures another person knowingly distributes, sends, causes to be sent, for the purpose of prostitution; or (b) by promises, exhibits, or offers to distribute or exhibit any threats, violence, or by device or scheme, causes, harmful matter to the minor is guilty of a induces, persuades or encourages another person misdemeanor. to become a prostitute; or (c) procures for another Crimes Against Public Decency, Morality and Public Peace 123

person a place as an inmate in a house ofprostitu­ genitals, in establishments which serve food and tion or as an inmate of any place in which prostitu­ beverages including alcoholic beverages. tion is encouraged or allowed within this state; or Cd) by promises, threats, violence orby any device 13.17 Bigamy or scheme, causes, induces, persuades or encour­ ages an inmate of a house of prostitution, or any Penal Code 281 Bigamy place in which prostitution is encouraged or Every person having a husband or wife living, allowed within this state, or (e) to come into this who marries any other person, except in the cases state or leave this state for the purposes of prostitu­ specified in Section 282 is guilty of bigamy. tion; or (f) receives or gives, or agrees to receive or give, an money or thing of value for Penal Code 282 Effect of Five Year Absence or or attempting to procure, another person for the Dissolution of Marriage purpose of prostitution, is guilty of pandering, a Section 281 does not extend to any of the felony .... following: (a) To any person by reason of any former 13.14 Abduction for Prostitution marriage whose husband or wife by such mar­ riage has been absent for five successive years Penal Code 267 Abduction for Prostitution without being known to such person within that Every person who takes away any person time to be living. under the age of 18 years from the father, mother, (b) To any person by reason of any former guardian, or other person having the legal charge marriage, which has been pronounced void, of the other person, without their consent, for the annulled, or dissolved by the judgment of a com­ purpose of prostitution, is punishable by petent court. imprisonment in the state prison .... Penal Code 284 Marrying Spouse of Another 13.15 Keeping or Residing in House of Ill­ Every person who knowingly and willfully Fame marries the husband or wife of another, in any case in which the husband or wife would be Penal Code 315 Residing in House of Ill-Fame punishable under the provisions of this chapter, is Every person who keeps a house of ill-fame in punishable by fine ... or by imprisonment in the this state, resorted to for the purposes ofprostitu­ state prison. tion or lewdness, or who willfully resides in such house, is guilty of a misdemeanor. . . . 13.18 Abortion Penal Code 316 Keeping Disorderly House Every person who keeps any disorderly Penal Code 274 Definition and Punishment­ house, or any house for the purpose of assignation Exception or prostitution, or any house of public resort, by Every person who provides, supplies, or which the peace, comfort, or decency of the administers to any woman, or procures any immediate neighborhood is habitually disturbed, woman to take any medicine, drug, or substance, or who keeps any inn in a disorderly manner; and or uses or employs any instrument or other means every person who lets any apartment or tenement, whatever, with intent thereby to procure the mis­ knowing that it is to be used for the purpose of carriage of such woman, except as provided in the assignation or prostitution, is guilty of a Therapeutic Abortion Act, Chapter 11 (commenc­ misdemeanor. ing with Section 25950) of Division 20 of the Health and Safety Code, is punishable by 13.16 Local Ordinances imprisonment in the state prison. PC 318.5 provides that cities and counties can Penal Code 275 [This section makes it a felony to pass ordinances which prohibits waiters or enter­ solicit any person to perform or to submit to an tainers from exposing their breasts, buttocks or illegal abortion.] 124 Chapter 13

Discussion CLASSROOM DISCUSSION QUESTIONS The U.S. Supreme Court in Roe v. Wade, 410 1. How does one establish the statewide com­ U.S. 113, held that a woman's munity standards for obscenity cases? under the federal constitution includes "a 2. What is the extent of the "right of privacy? " woman's decision whether or not to terminate her 3. Why is it difficult to prosecute cases involv­ pregnancy". Under this case, a woman has a right ing obscenity? to obtain an abortion during the first trimester of 4. Define "obscenity?" the pregnancy. During the second trimester, the 5. How does the obscenity laws and the right of state may place restrictions for the medical protec­ privacy conflict? tion of the woman. During the third trimester, the 6. What is the difference between "pimping" state has the right to consider the protection of the and "pandering?" unborn child. 7. Under what circumstances is an individual guilty of "bigamy?" 13.19 Gambling 8. What standard does California use for In California, not all gambling is illegal. The , , obsceni ty? ' , most common illegal forms of gambling are [sted below: 1. Lottery (except the official state lottery). Lottery is defmed as any scheme for the SELF STUDY QUIZ disposal or distribution of property by 1. The first amendment to the federal constitu­ chance, among persons who have paid or tion protects the right to publish obscene promised to give any valuable considera­ matter. tion for the chance of obtaining such prop­ 2. California uses the "statewide community erty or a portion of it, or any interest in standards" in obscenity cases. such property (p C 326.5). Note: a "foot­ 3. Obscenity cases are relatively easy to ball pool" is a lottery, and therefore is prosecute. illegal. The key phrase is "by chance." If 4. The phrase "obscene matter" does not the winning depends on skill, not chance, include films or recordings under the it may not be gambling. statutes. 2. Chain letters. chain letters and pyramid 5. The predominant appeal to prurient interest schemes are a violation of P C 327. of the conduct is always judged with refer­ 3. Bookmaking. Bookmaking is a violation ence to average adults. ofP C 337a 6. "Knowingly" under the statutes means that 4. Operating an unlicensed gaming house is a the individual must recognize that the matter violation of P C 330. is obscene before he or she can be 5. Slot machines P C 330.1. prosecuted. 7. The employment of a minor for the sale of 13.20 Organized Crime obscene matter is always a felony offense. The Organized Crime Bill (p C 186) provides 8. A person has the right to read obscene books that when selected other penal statutes are violated in his or her own home. for financial gain, two or more times by organized 9. The right of privacy for a woman includes the crime or any person who is engaged in a "pattern right to have an abortion at any time during of criminal profiteering," the offender(s) are the pregnancy if her doctor consents. guilty of criminal profiteering in addition to the 10. It is illegal to place a slug operated vending other crimes involved. machine within 1,000 yards of a high school. Chapter 14

Forgery, Counterfeiting and Check Offenses The Pen is mighter than the sword. (Old English Proverb)

Forgery, Counterfeiting and Check Related 19. Forgery of (B & PC 14322) Crimes 1. Forgery-Acts Constituting (P C 470) 14.1 Forgery 2. Forging Driver's License - Identifica­ tion Card (p C 470a) Penal Code 470 Forgery-Acts Constituting 3. Possessing Forged Driver's License - Every person who, with intent to defraud, Identification Card (P C 470b) signs the name of another person, or a fictitious 4. Altering Entries in Books and Records (p person, knowing that he or she has no authority to C 471) do so or falsely makes, alters, forges, or counter­ 5. Possessing, Receiving or For­ feits, any , letters patent, , lease, ged Paper (P C 475) indenture, writing obligatory, will, testament, 6. Forging or Counterfeiting State, Corpo­ codicil, bond, covenant, bank bill or note, post rate and Official Seals (P C 472) note, check, draft, bill of exchange, contract, 7. Sending False Message by Phone or Tele­ promissory note, due bill for the payment of graph (P C 474) money or property, receipt for money or property, 8. Uttering or Passing Check, Money passage ticket, lottery ticket or share purporting to Order, or Warrant to Defraud (P C 475a) be issued under the California State Lottery Act of 9. Making, Drawing or Possessing Fic­ 1984, trading stamp, power of attorney, or any titious Bill, Note or Check (p C 476) certificate of any share, right, or interest in the 10. Making, Drawing or Passing Worthless stock of any corporation or association, or any Check, Draft or Order (p C 476a) controller's warrant for the payment of money at 11. Counterfeiting (p C 477) the treasury, county order or warrant, or request 12. Having or Uttering (p C 479) for the payment of money, or the delivery of goods 13. Making or Having Counterfeit Die or or chattels of any kind, or for the delivery of any Apparatus (p C 480) instrument of writing, or acquittance, release, or 14. Ticket Scalping (p C 483) receipt for money or goods, or any acquittance, 15. Offering False or Forged Instrument to release, or discharge of any debt, account, suit, be Filed of Record (p C 115) action, demand, or other thing, real or personal, 16. Altering Certified Copies of Official or any transfer or assurance of money, certificate Records (P C 115.3) of shares of stock, goods, chattels, or other prop­ 17. Filing False or Forged Documents or erty whatever, or any letter of attorney, or other Instruments (p C 115.5) power to receive money, or to receive or transfer 18. Forgery of Initiative Signatures (Elec­ certificates of shares of stock or annuities, or to tions Code 29733) let, lease, dispose of, alien, or convey any goods,

125 126 Chapter 14

chattels, lands, or tenements, or other estate, real Forgery is complete when one either makes or or personal, or any acceptance or endorsement of passes a false instrument with the intent to defraud any bill of exchange, promissory note, draft, (People v. Ross 198 CA 2d 723). The gist offorgery order, or any assignment of any bond, writing offenses is the "intent to defraud." Actual obligatory, promissory note, or other contract for defrauding is not required (People v. Garin 174 CA money or other property; or or forges 2d 654). the seal or handwriting of another; or utters, Elements of Forgery publishes, passes, or attempts to pass, as true and The elements of the crime of forgery (making genuine, any of the above-named false, altered, a false document or alteration of a genuine instru­ forged, or counterfeited matters, as above spec­ ment) are: ified and described, knowing the same to be false, 1. a false signature or material alteration altered, forged, or counterfeited, with intent to 2. signed or altered without authority prejudice, damage, or defraud any person; or who, 3. a writing or other instrument that if gen­ with intent to defraud, alters, corrupts, or falsifies uine, would have legal significance any record of any will, codicil, conveyance, or 4. an intent to defraud other instrument, the record of which is by law evidence, or any record of any judgment of a court The elements of the crime of forgery (utter­ or the return of any officer to any process of any ing, passing, publishing, or attempting to pass) court, is guilty of forgery. are: 1. a forged document that if genuine, would Penal Code 470a Forging Driver's License - have legal significance Identification Card 2. uttering, passing, publishing, or attempt­ Every person who alters, fal!5ifies, forges, ing to pass the forged document with the duplicates or in any manner reproduces or coun­ intent to defraud. terfeits any driver's license or identification card issued by a governmental agency with the intent Discussion that such driver's license or identification card be Forgery is a specific intent crime, in that a used to facilitate the commission of any forgery, is specific intent to defraud is a necessary element of punishable by imprisonment in the state prison, or the offense. The term "writing" includes printed by imprisonment in the county jail .... or typewritten material. In one case, the accused Penal Code 470b Possessing Forged Driver's was convicted of forgery where he signed his own License -Identification Card name to a check. In this case, the defendant Every person who displays or causes or per­ wrongly received a check that was made payable mits to be displayed or in his possession any to another person with the same name as the driver's license or identification card of the type defendant. The defendant knew that the check was enumerated in Section 470a with the intent that not his and thus by signing his name with the such driver's license or identification card be used intention of having it accepted as the other person's to facilitate the commission of any forgery, is signature was forgery (Clark and Marshall, p. punishable by imprisonment in the state prison, or 848). by imprisonment in the county jail .... Fraud in the Inception Forgery Defined At both common law and by statute, forgery is Forgery may be committed by obtaining a the making of a false instrument or the material genuine signature to an instrument by fraudulent alteration of an existing genuine instrument. The representations regarding the nature of the docu­ common law crime of uttering a forged document ment. For example, a check signed in blank by a is also included in the statutory crime of forgery victim who was promised that it was to be used under PC 470. Uttering is the offering, passing or only as an example; it was later filled in without attempted passing of a false instrument with authority. The court held that this was a forgery knowledge thereof and with the intent to defraud. (People v. Bartges 126 CA 2d 763). In another

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Forgery, Counterfeiting and Check Offenses 127

case, the defendant obtained the signature of a the intent to defraud another is forgery (People v. victim on a deed of trust by stating that the Brotherton 47 C 388). document was a contract. The court held that the crime offorgery was committed (People v. Parker Intent 11 CA 3d 500). An intent to defraud is a necessary element. Authority to Sign The intent, however, may be inferred from cir­ The prosecution must establish that there was cumstances (People v. Cullen 99 CA 2d 468). A a lack of authority to sign the other person's name. general intent to defraud members of the public is Accordingly, the implied authority to sign the sufficient. There is no requirement to establish that the defendant intended to defraud any par­ other person's name is a defense. ticular person, as long as a general intent to Instruments Subject to Forgery defraud another is established (People v. Brown To be subject to forgery the instrument, if 113 CA 492). genuine, must create some legal right or obligation Uttering (have apparent legal significance). If the instru­ ment has no legal significance on its face, then it is The crime of "uttering a forgery" is the not subject to forgery. If it has no legal signifi­ offense of trying to pass a forged document as cance, but this is not apparent on its face, then the genuine. To be gu:lty of this offense, the accused instrument is subject to forgery statutes. For need not complete the passing or uttering of it. example, the conviction for the forgery of a will Attempting to pass is sufficient to constitute the was upheld on review even though the deceased offense (People v. Clark 233 CA 2d 725). A had no estate (property) to pass under the will conviction of uttering a forgery was upheld where (People v. Bibby 91 C 470). one defendant was caught attempting to cash a Instruments which the courts have found to forged payroll check by representing to a cashier have apparent legal significance include: that he was the individual whose name was on the 1. transcript of college record or college check (People v. Ford 233 CA 2d 725). Possession diploma (People v. Russel 214 CA 2d 445) of a forged instrument with the intent to pass it is 2. letter of credit (People v. Kagan 264 CA 2d not forgery under P. C. 470. There must be at least 656) an attempt to pass the false document. (Note: 3. insurance form of proof of loss (People v. possession of a forged document may be a viola­ Di Ryana 8 CA 333) tion of the "possession" statutes.) 4. divorce decree (Ex parte Finley 66 C 262) 5. signing false name to a charge slip while 14.2 Making False Entries in Records or using a stolen credit card (People v. Searcy Returns 199 CA 2d 740) Alteration Penal Code 471 Making False Entries in Rec­ ords or Returns The alteration of a document is expressly Every person who, with intent to defraud included in PC 470. The general, theory is that another, makes, forges, or alters any entry in any when a genuine document is altered, it becomes a book of records, any instrument purporting to be false document. To be forgery, however, alteration any record or retum specified in the preceding must be of a material part. For example, changing section, is guilty of forgery. the date on a check from April 4 to Apri114 will not be a forgery unless the change in date has Penal Code 471.5 Falsifying Medical Records some legal significance. The alteration must result Any person who alters or modifies the medi­ in some material change in the rights and obliga­ cal record of any person, with fraudulent intent, or tions of the parties involved. For example, the who, with fraudulent intent, creates any false material alteration of a check already made, with medical records, is guilty of a misdemeanor. 128 Chapter 14

14.3 Forgery of Corporate and Public Seals 14.6 Filing Forged Instruments Penal Code 472 Forgery of Corporate and Pub­ Penal Code 115 Offering False or Forged Instru­ lic Seals ments to be Filed. Any person who, with intent to defraud (a) Every person who knowingly procures or another, forges, or counterfeits the seal of this offers any false or forged instrument to be filed, state, the seal of any public officer authorized by registered, or recorded in any public office within law, the seal of any court of record, or the seal of this state, which instrument, if genuine, might be any corporation, or any other public seal autho­ filed, registered, or recorded under any law of this rized or recognized by the laws of this state, or of state or of the United States, is guilty of a felony. any other state, government, or country, or who (b) Each instrument which is procured or falsely makes, forges, or counterfeits any impres­ offered to be filed, registered, or recorded in sion purporting to be an impression of any such violation of subdivision (a) shall constitute a sepa­ seal, or who has in his possession any such rate violation of this section. counterfeited seal or impression thereof, knowing [Subsections (c) and (d) referring to punish­ it to be counterfeited, and willfully conceals the ments are omitted.] same, is guilty of forgery. Penal Code 115.5 Filing False or Forged Docu­ 14.4 Sending False Messages ments or Instruments (a) Every person who files any false or forged Penal Code 474 False Messages document or instrument with the county recorder Every person who knowingly and willfully which affects title to, places an encumbrance on, sends by telegraph or telephone to any person a or places an interest secured by a mortgage or false or forged message, purporting to be from a deed or trust on, real property consisting of a telegraph or telephone office, or from any other single-family residence containing not more than person, or who willfully delivers or causes to be four dwelling units, with knowledge that the docu­ delivered to any other person any such message ment is false or forged is punishable. .. . falsely purporting to have been received by tele­ (b) Every person who makes a false sworn graph or telephone, or who furnished to any agent, statement to a notary public, with knowledge that operator, or employee, to be sent by telegraph or the statement is false, to induce the notary public telephone, or to be delivered, any such message, to perform an improper notarial act on an instru­ knowing the same to be false or forged, with the ment or document affecting title to, or placing an intent to deceive, injure, or defraud another, is encumbrance on, real property containing not punishable by imprisonment in the state prison ... more than four dwelling units is guilty of a felony. or in the county jail .... Discussion Discussion The above offenses required that the filing or The defendant was convicted of this offense offering for filing or the making of a false sworn for sending a telegraph message to her former statement to a notary public be "with the knowl­ husband stating that their 14 year old son had been edge" that the documents or statements are forged killed and his remains cremated. Apparently, she or false. There is no requirement, however, to was trying to defraud her ex-husband of his visita­ establish an "intent to defraud." tion rights awarded by the court (people v. Tolstoy 250 CA 2d 22). 14.7 Altering Certified Copies of Official Records 14.5 False Signature on Letter to Newspaper P C 538a makes it a misdemeanor to sign Penal Code 115.3 Altering Certified Copies of another person's name to a letter, and send it to a Official Records newspaper with the intent to cause the newspaper Any person who alters a certified copy of an to believe that the letter was written by the person official record, or knowingly furnishes an altered whose name is signed to the letter. certified copy of an official record, of this state, Forgery. Counterfeiting and Check Offenses 129

including the , legislative, and judicial to defraud any person, is punishable by imprison­ branches thereof, or of any city, county, city and ment in the state prison, or by imprisonment in tile county, district, or political subdivision thereof, is county jail .... guilty of a misdemeanor. Penal Code 476 Possessing Fictitious Bill, Note Discussion or Check Every person who makes, passes, utters, or The above offense of altering certified copies publishes, with intention to defraud any other of official records does not require an •'intent to person, or who, with the like intention, attempts to defraud. " The mere altering of certified copies is pass, utter, or publish, or who has in his posses­ sufficient to constitute the offense. sion, with like intent to utter, pass, or publish, any fictitious bill, note, or check, purporting to be the 14.8 Possession of Forged Bills bill, note, or check, or other instrument in writing for the payment of money or property of some Penal Code 475 Forged or Unfinished Bills or bank, corporation, copartnership, or individual, Notes, Possession when, in fact, there is no such bank, corporation, Every person who has in his possession, or copartnership, or individual in existence knowing receives from another person, any forged prom­ the bill, note, check, or instrument in writing to be issory note or bank bill, or bills, or any counter­ fictitious, is punishable by imprisonment in the feited trading stamp, or stamps, or lottery ticket or county jail ... or ... in the state prison. share purporting to be issued under the California State Lottery Act of1984, or tickets or shares, for Discussion the payment of money or property, with the inten­ For the "possession" to be crime, the posses­ tion to pass the same, or to permit, cause, or sion must be with the knowledge that the instru­ procure the person, knowing the same to be forged ment was false or was not genuine. Each or counterfeited, or has or keeps in his or her instrument possessed constitutes a separate crime. possession any blank or unfinished note or bank bill made in the form or similitude of any prom­ 14.9 Check Offenses issory note or bill for payment of money or prop­ erty, made to be issued by any incorporated bank Penal Code 476a Delivering or Making Check or banking company, or any blank or unfinished With Insufficient Funds check, money order, or traveler's check, whether (a) Any person, who for himself or as the the parties thereto are real or fictitious, with agent or representative of another or as an officer intention to fill up and complete the blank and of a corporation, willfully, with intent to defraud, unfmished note or bill, check, money order, or makes or draws or utters or delivers any check, traveler's check, or to permit, or cause, orprocure draft or order upon any bank or depository, of the same, or to permit, or cause, or procure the person, orfirm, or corporation, for the payment of same to be uttered or passed, to defraud any money, knowing at the time of such making, person, is punishable by imprisonment in the state drawing, uttering or delivering that the maker or prison, or by imprisonment in the county jail .... drawer or the corporation has not sufficient funds in, or credit with said bank or depository, or Penal Code 475a Fraudulent Possession of person, or firm, or corporation, for the payment of Money Order, Warrant or Completed Check such check, draft, or order and all other checks, Every person who has in his possession a drafts, or orders upon such funds then outstand­ completed check, money order, traveler's check, ing, in full upon its presentation, although no controller's warrant for the payment of money at express representation is made with reference the treasury, or county order or warrant, whether thereto, is punishable by imprisonment in the the parties thereto are real or fictitious, with county jail . . . . intention to utter or pass the same, or to permit, (b) However, if the total amount of all such cause, or procure the same to be uttered orpassed, checks, drafts, or orders that the defendant is 130 Chapter 14 charged with and convicted of making, drawing, 3. with the intent to defraud, or uttering does not exceed two hundred dollars 4. for the payment of money or property, ($200), the offense is punishable only by 5. with knowledge that at the time of the imprisonment in the county j ail for not more than making, delivering or uttering, there were one year, except that this subdivision shall not be insufficient funds or credit to cover the applicable if the defendant ... [has a previous check, draft or order. conviction of this Section or Sections 470, 475, or Discussion 476.] (c) Where such check, draft, or order is pro­ In most cases, the conduct required to estab­ tested, on the ground of insufficiency of funds or lish a violation of this offense, also, is sufficient to credit, the notice of thereof shall be constitute theft. A critical problem with the pros­ admissable as proof of presentation, nonpayment ection of most theft by check offenses is in estab­ and protest and shall be presumptive evidence or lishing the identify of the maker or presenter of the knowledge of insufficiency of funds or credit with check. This problem is made easier by the pre­ such bank or depositary, or person, or firm, or sumptions contained in (d) (1) above. The eviden­ corporation. tiary presumptions, therefore, make it easier in (d) In any prosecution under this section most cases to establish a violation of this statute involving two or more checks, drafts, or orders, it rather than the theft statute. shall constitute prima facie evidence of the iden­ While this section requires an intent to tity of the drawer of a check, draft, or order if: defraud, it is not necessary to establish that any (1) At the time of the acceptance of such person was actually defrauded. It does require check, draft or order from the drawer by the payee proof that at the time of the making, uttering, or there is obtained from the drawer the following delivery that the defendant knew that he or she had information: name and residence of the drawer, neither sufficient funds or credit with the bank, business or mailing address, either a valid driver's etc. to cover the check, draft or order. license number or Department of Motor Vehicles identification card number, and the drawer's home 14.10 Counterfeiting or work phone number or place of employment. Such information may be recorded on the check, Penal Code 477 Counterfeiting Coin, Bullion, draft, or order itself or may be retained on file by etc. the payee and referred to on the check, draft, or Every person who counterfeits lmy of the order by identifying number or other similar species of gold or silver coin current in this state, means; and or any kind of species of gold-dust, gold or silver (2) The person receiving the check, draft, or bullion, or bars, lumps, pieces, ornuggets, or who order witnesses the drawer's signature or endorse­ sell, passes, or gives in payment such counterfeit ment, and, as evidence of that, initials the check, coin, dust, bullion, bars, lumps, pieces, or nug­ draft, or order at the time of the receipt. gets, or pelmits, with intention to defraud any (e) The word "credit" as used herein shall be person, knowing the same to be counterfeited, is construed to mean an arrangement or understand­ guilty of counterfeiting. ing with the bank or depository or person or firm Penal Code 479 Counterfeit Gold or Silver or corporation for the payment of such check, Coins, etc. draft or order. Every person who has in his possession, or (f) [Omitted.] receives for any other person, any counterfeit gold or silver coin of the species current in this state, or Elements any counterfeit gold dust, gold or silver bullion or The elements of the offeulle of delivering or bars, lumps, pieces or nuggets, with the intention making a check with insufficient funds are: to sell, utter, put off or pass the same, or permits, 1. the making of, uttering or the delivery of causes or procures the same to be sold, uttered or 2. a check, draft or order, passed, with intention to defraud any person, Forgery, Counterfeiting and Check Offenses 131 lmowing the same to be counterfeit, is punishable CLASSROOM DISCUSSION QUESTIONS by imprisonment in the state prison .... 1. Explain the difference between the crimes of possession of forged instruments and utteling Penal Code 480 Possessing or Making Counter­ a forged document. feit Dies or Plates Every person who makes, or lmowingly has in 2. Bob writes a check to pay his rent. At the time of writing his check, he thinks that he his possession any die, plate, or any apparatus, paper, metal, machine, or other thing whatever, has sufficient credit with the bank to cover the check. Two days prior, however, he had made use of in counterfeiting coin current in this received a letter from his bank indicating tl1at state, or in counterfeiting gold dust, gold or silver his line of credit was cancelled. Bob had bars, bullion, lumps, pieces, or nuggets, or in counterfeiting bank notes or bills, is punishable by misread the letter and thought that it had increased his line of credit. Has he com­ imprisonment in the state prison . .. and all such dies, plates, apparatus, paper, metal, or machine, mitted a check offense under PC 476a? intended for the purpose aforesaid, must be 3. Joe finds four tickets to the UCLA/USC football game. He needs money to pay his destroyed. tuition to UC. He attempts to sell the tickets. Discussion What crime(s), if any, has he committed? Counterfeiting of U.S. is a federal 4. Jim White has the same name as a famous crime and is subject to prosecution in U.S. District football player. He writes a letter to the news­ Courts. It is also a state crime and the states have paper regarding football. The newspaper concurrent power to punish (In re Dixon 41 C 2d thinking the letter is from the famous Jim 756). By statute, counterfeiting includes more White publishes it. What crime(s), if any, has than the making of phony currency. For example, Jim committed? a conviction for the counterfeiting of parimutuel 5. Mike asks Jerry to cash his check for him tickets was upheld in one case. Note: the intent to (Mike) at the local bank. Mike forgets to defraud is similar to that required for forgery endorse the check. Jerry realizing this signs (People v. Bratis 73 CA 3d 751). Mike's name to the check, cashes it and gives the money to Mike. Is Jerry guilty of forgery? 14.11 Ticket Scalping 6. Susan finds a check with the name of the Penal Code 483 Ticket Scalping payee blank. She fills in her name and cashes Except as otherwise provided . . . any person the check. What crimes has she committed? ... that shall sell to another any ticket, pass, scrip, mileage or commutation book, coupon, or other instrument for passage on a common carrier, for the use of any person not entitled to use the same SELF STUDY QUIZ according to the terms of the book or portion True/false thereoffrom which it was detached, shall be guilty 1. Forgery requires an intent to defraud. of a misdemeanor. 2. Implied authority is a defense to forgery. 3. Making a false lottery ticket is not forgery. Discussion 4. Altering a lottery ticket to make it a winning Unlike forgery or counterfeiting, ticket scalp­ ticket is not forgery. ing is a general intent crime. This crime also 5. Trading stamps are not subject to be forged. differs in that there is no requirement to establish 6. The crime of uttering a forged document an intent to defraud as a necessary element. For requires that the transfer of the document be example, most sports tickets have restrictions completed. printed on them limiting their transfer or resale. 7. A material alteration of a bank check is a Accordingly, reselling the tickets in violation of forgery. the ticket restrictions is an offense under this 8. Forgery may be committed by obtaining a section. genuine signature by fraud. 132 Chapter 14

9. The offense of sending false messages under 13. To be guilty of the crime of altering certified PC 474 requires an intent to injure, deceive copies of official records, it must be proven or defraud. that the individual did the altering with an 10. A person may be convicted of possession of a intent to defraud. forged check without establishing that the 14. Passing a forged driver's license is always a person was aware of its falsity. felony. 11. Counterfeiting is a federal crime and thus 15. Uttering a forged document is the offense of cannot be prosecuted in state criminal offering, passing or attempting to pass a courts. forged document with the knowledge of its 12. Ticket scalping is a specific intent crime. falsity and with the intent to defraud. Chapter 15

Controlled Substances and Alcohol Related Crimes There are two ways of being addicted to heroin. One way is to mainline it. The other way is to traffic in it. (Richard Berdin, Code Name Richard)

Drug and Alcohol Related Crimes (c) substances (other than food) intended to 1. Unifonn Controlled Substances Act (H & affect the structure or any function of the body of S 11000-11853) man or animals; and 2. Driving Under the Influence of Alcohol or (d) substances intended for use as a compo­ Drugs (V C 23152) nent of any article specified in subdivisions (a), 3. Felony Driving Under the Influence (V C (b) and (c). 23153) Dmgs do not include devices or their compo­ 4. Driving Under the Influence - Juveniles nents, parts, or accessories (H&S 11014). (V C 23140) Marijuana 15.1 Uniform Controlled Substances Act The most drug offenses in California are Marijuana means all parts of the plant Can­ contained in the Unifonn Controlled Substances nabis Sativa L., whether growing or not; the seeds Act (referred to as the Act) which is set forth in the thereof; the resin extracted from any part of the Health and Safety Code (H&S), Sections plant; and every compound, manufacture, salt, 11000-11853. derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature The below listed definitions are set forth in stalks of the plant. fiber produced from the stalks, the Act: oil or cake made from the seeds of the plant, any Controlled Substances other compound, manufacture, salt, derivative, A drug, substance, or immediate precursor mixture, or preparation of the mature stalks which is listed in any section of the Act (H&S (except the resin extracted therefrom), fiber, oil, 11007). or cake, or the sterilized seed of the plant which is Drug incapable of gennination (H&S 11018). (a) A substance recognized as drugs in the Narcotic Drug official United States Phannacopoeia of the United States or official National Fonnulary, or Narcotic drug means any of the following any supplement to any of them; whether produced directly or indirectly by extrac­ (b) substances intended for use in the diag­ tion from substances of vegetable origin, or inde­ nosis, cure, mitigation, treatment, or prevention pendently by means of chemical synthesis, or by a of disease in man or animals; combination of extraction and chemical synthesis:

133 134 Chapter 15

(a) Opium and opiate, and any salt, com­ 5. marijuana pound, derivative, or preparation of opium or 6. hallucinogeniC substances unless specifi- opiate. cally listed in another section (b) Any salt, compound, isomer, or deriva­ 7. morphine methylbromide tive, whether natural or synthetic, or the sub­ 8. peyote stances referred to in subdivision (a), but not 9. cocaine base including the isoquinoline alkaloids of opium. 10. methaqualone Cc) Opium poppy and poppy straw. Note: this is not a complete list of all Schedule I Cd) Coca leaves and any salt, compound, substances. derivative, or preparation of coca leaves, but not including decocainized coca leaves or extraction Schedule n of coca leaves which do not contain cocaine or H & S 11055 contains a list of those sub­ ecgonine. stances classified as Schedule II. The list (e) Cocaine, whether natural or synthetic, or includes: any salt, isomer, derivative, or preparation 1. opium thereof. 2. codeine (f) Ecgonime, whether natural or synthetic, 3. cocaine except that classified as or any salt, isomer, derivative, or preparation Schedule I thereof. 4. pentobarbital (g) Acetyfentanyl, the thiophene analog 5. morphine thereof, derivatives of either, and any salt, com­ 6. methadone pound, isomer, or preparation of acetylfentanyl or 7. amphetamines the thiophene analog thereof. (H&S 11019) 8. methylphenidate Opiate Note: this is not a complete list of substances Opiate means any substance having addic­ under Schedule II. tion-foIming or addiction-sustaining liability sim­ Schedule ill ilar to morphine or being capable of into a drug having addiction-fOIming or addiction­ Schedule III controlled substances are listed sustaining liability. (H&S 11020) in H & S 11056. The list of Schedule III sub­ stances include: Opium Poppy 1. phencyclidine (PCP) Opium poppy means the plant of the species 2. methaqualone Papaver somniferum L., except its seeds. (H&S 3. barbiturates 11021) 4. stimulants unless specifically listed under another schedule 15.2 Schedules 5. depressants unless specifically listed The Act divides the controlled substances into under another schedule 6. secobarbital five different schedules. 7. lysergic acid Schedule I 8. chorhexadol Those drugs classified as Schedule I control­ Note: not a complete list. led substances are listed in H & S 11054. Sub­ Schedule IV stances classified under Schedule I include: 1. opiates unless specifically listed in Schedule IV substances are listed in H & S another schedule Section 11057 and include the below listed 2. heroin substances: 3. LSD (lysergic acid diethylamide) 1. veronal 4. mescaline 2. luminal Controlled Substances and Alcohol Related Crimes 135

3. chloral hydrate 2. (H & S 111000.1) Any manufacturer, etc., 4. valmid who receives the controlled substances 5. placidyl listed above from outside the state shall 6. barbital make a report of the transaction to the 7. chloral betaine State Department of Justice. 8. pipradrol 3. (H & S 11103) Reports are required to be made on the thefts or loss of any of the Note: not a complete list. controlled substances listed under Section Schedule V 11100. Forms for Reports The Schedule V controlled substanges listed in H & S 11058 include: H & S 11101 requires that the monthly reports 1. not more than 200 milligrams of codeine contain at least the following information on those per 100 milliliters or per 100 grams substances covered by section 11100: 2. not more than 100 milligrams of opium 1. name of substance, per 100 milliliters or per 100 grams 2. quantity of the substance involved, 3. not more than 100 milligrams of 3. date of the transaction, dihydrocodeine per 100 milliters or per 4. name and address of the receiver of the 100 grams substance, and 5. name and address of the person providing 15.3 Reporting Requirements the substance. The Act requires certain reports be submitted 15.4 Felony Offense for Certain Sales regarding the manufacture, sale or delivery of Health & Safety Code 11104 controlled substances. Reports required include: Any manufacturer, wholesaler, retailer, or 1. (H & S 11100) Any manufacturer, whole­ other person who sells, transfer, or otherwise saler, retailer, or other person who sells, furnishes any of the substances listed in subdivi­ transfers, or otherwise furnishes certain sion (a) of Section 11100 with knowledge or the controlled substances shall submit a intent that the recipient will use the substance to monthly repOlt to the State Department of unlawfully manufacture a controlled substance is Justice of all of those transactions. Those guilty of a felony. substances include: a. Phenyl-2-propanone b. Methylamine 15.5 Permits for Sale, Transfer, etc. c. Ethylamine H & S 11106 requires that any manufacturer, d. D-lysergic acid wholesaler, etc., who sells, transfers, etc. any of e. Ergotamine tartrate the controlled substances listed in section 11100 f. Diethyl malonate must obtain a permit prior to the transfer from the g. Malonic acid State Department of Justice. Permits may be h. Ethyl malonate granted for a maximum period of one year. i. Barbituric acid j. Piperidine 15.6 Prescriptions k. N-acetylanthranilic acid l. Pyrrolinine Only physicians, dentists, podiatrists or vet­ m. Penylacetic acid erinarians or pharmacists acting within the provi­ n. Anthranilic acid sions of Article 18 of the Health and Safety Code o. Morpholine and registered nurses under certain circumstances p. Ephedrine may write prescriptions. Some of the general rules q. Pseudoephedrine on writing and filling prescriptions include: 136 Chapter 15

1. No person shall write, issue, fill, com­ 15.7 Unlawful Possession pound or dispense a prescription except It is unlawful to possess any controlled sub­ as authorized by the Act. stance except as permitted by law. In most cases, 2. Prescriptions for a controlled substance the unlawful possession is a felony (H & S shall only be issued for a legitimate medi­ 11350-11356). The possession of substances under cal purpose. Schedules III, IV or V may in most cases be 3. Both the prescribing practitioner and the treated by the court as a misdemeanor (wobbler). pharmacist filling the prescription have Possession for purposes of sale or distribution is the responsibility to ensure that only an aggravated form of possession. There are two legal prescriptions are filled. types of possession; actual and constructive. 4. It is unlawful to solicit, directly or indi­ Actual possession is where the individual has the rectly, any person to prescribe, fill, etc. substance in his or her possession. Constructive an illegal prescription. possession is where the substance is possessed by 5. No person shall issue a prescription that someone else, but the defendant has control of it. is false or fictitious in any respect. 6. No person shall issue, prescribe, admin­ The elements of unlawful possession are: ister, etc., a controlled substance to an 1. the person had possession or the right to addict except as permitted under the Act. exercise control of a controlled substance, 7. With minor exceptions, controlled sub­ 2. the possession is unlawful, stances classified under Schedules II, 3. the person had knowledge of the nature of III, IV and V may not be dispensed the substance, and without a prescription. 4. the amount of substance possessed was a 8. In most cases, a maximum of 72-hour usable quantity. Note: While a usable supply of a Schedule II substance may be amount must be possessed, there is no dispensed pursuant to a valid requirement that the amount be sufficient prescription. to produce a narcotic effect (People v. 9. Prescription blanks are issued by the Piper 19 CA 3d 248). State Department of Justice in serially numbered groups of not more than 100 15.8 Unlawful Manufacture, Import, Sale, forms each in triplicate. etc. of Controlled Substance 10. Possession of unauthorized prescription blanks or counterfeit blanks is a criminal H & S 11379 makes it a felony to illegally offense under the Act. transport, import, manufacture, sale, etc. of a 11. The giving of a false name or address in controlled substance listed under Schedules III, connection with prescribing, dispensing, IV and V. etc. of a controlled substance is unlawful. 12. Records of all prescriptions prescribed, 15.9 Marijuana dispensed, etc. shall be maintained for a Possession period of at least three years. 13. Records shall contain, at least, the fol­ The possession of less than 28.5 grams of lowing information: marijuana (any concentrated cannabis) is nor­ a. name and address of the patient, mally a misdemeanor (H & S 11357). b. date, Cultivation c. character and quantity of controlled substances involved, and Every person who plants, cultivates, harvests, d. pathology and purpose for which th~ dries, or processes any marijuana or any part prescription was issued (or in the case of thereof, except as otherwise provided by law, shall the pharmacist, the name and address of be punished by imprisonment in the state prison the prescriber of the controlled substance). (felony) (H & S 11358). Controlled Substances and Alcohol Related Crimes 137

Possession for Sale (b) It is unlawful for any person who has Every person who possesses for sale any 0.08 percent or more, by weight, of alcohol in marijuana, except as otherwise provided by law, his/her blood to drive a vehicle. For purposes of this subdivision, percent, by shall be punished by imprisonment in the state weight, of alcohol shall be based upon grams of prison (felony) (H & S 11359). alcohol per 100 milliliters of blood. Transportation, Distribution, or Importation In any prosecution under this subdivision, it Except as provided for by law, every person is a rebuttable presumption that the person has who transpOlts, imports into the state, sells, fur­ 0.08 percent or more, by weight, of alcohol in nishes, etc. marijuana is guilty of a felony (H & S his/her blood at the time of driving the vehicle 11360). If the amount is less than 28.5 grams of if the person had 0.10 percent or more, by marijuana other than concentrated cannabis, the weight, of alcohol in his/her blood at the time of offense is a misdemeanor. the performance of a chemical test within three hours after the driving. Minors (c) It is unlawful for any person who is The employment or using of minors in the addicted to the use of any drug to drive a vehicle. unlawful selling, distributing, etc. of marijuana is This subdivision shall not apply to a person who is a felony. It is also a felony for an adult to dis­ participating in a methadone maintenance treat­ tribute, give, sell, etc. marijuana to a minor (H & ment program .... S 11361). Discussion 15.10 Peyote There are three offenses under Vehicle Code 23152: Health and Safety Code 11363 1. driving under the influence, Every person who plants, cultivates, harvests, 2. driving with a blood alcohol content of dries, or processes any plant of the genus 0.08 or higher, and Lophophora, also known as peyote, or any part 3. driving by a person who is addicted to the thereof shall be punished by imprisonment in the use of any drug, unless the person is on county jail .... [A misdemeanor offense.] an approved methadone maintenance treat­ ment program. 15.11 Possession of Paraphernalia for Unlaw­ ful Use Prior to 1982, the above offenses were only committed by driving on a public highway. In Section 11364 makes it unlawful to possess an 1982, the section was changed to remove the opium pipe or any device, etc. used for unlawfully public highway requirement. The section now injecting or smoking a controlled substance. applies to highways and elsewhere within the state. Note: as discussed under the laws of arrest, 15.12 Presence During Unlawful Use normally a misdemeanor must be committed in It is unlawful to visit or to be in any room or the presence of the officer before an officer has the place where any controlled substances are being authority to make a misdemeanor arrest without a unlawfully used, smoked, etc. (H & S 11365) warrant. DWI/DUI offenses, however, are excep­ tions to this rule (P C 836). 15.13 Driving Under the Influence Vehicle Code 23152 Driving While Under Influence of Under the Influence Alcohol or Drugs "Under the influence" means that alcohol or (a) It is unlawful for any person who is under drugs or a combination thereof have so affected the influence of an alcoholic be.verage or any the nervous system, the brain, or muscles as to drug, or under the combined influence of an impair to an appreciable degree the ability of the alcoholic beverage and any drug, to drive a person to operate a motor vehicle in an ordinary vehicle. and cautious manner (People v. Byrd 125 CA 3d 138 Chapter 15

1054). "Under the influence" does not require that bicycle under the influence (Vehicle Code, Sec­ the driver be "drunk" (People v. Haeussler 41 C tions 21200 and 21200.5). 2d 252). 15.14 Felony Drunk Driving The drug involved may be a prescribed drug and need not be illegal. For example, where the Vehicle Code 23153 Driving While Under the accused is stopped for driving under the influence, Influence of Alcohol or Drugs - Causing it is not a defense that the drugs were duly pre­ Injury scribed and were taken according to the doctor's (a) It is unlawful for any person, while under directions (People v. Keith 184 CA 2d Supp. 884). the influence of an alcoholic beverage or any drug, or under the combined influence of an For the offense of driving while a drug addict, alcoholic beverage and any drug, to drive a vehi­ it is not necessary to establish that the driver was cle and, when so driving, do any act forbidden by under the influence of drugs at the time he or she law or neglect any duty imposed by law in the was driving. All that is necessary is that the driving of the vehicle, which act or neglect prox­ defendant is a drug addict and operated a vehicle imately causes bodily injury to any person other during the time he or she was addicted (People v. than the driver. Diaz 234 CA 2d 818 and People v. O'Neil 62 CA 2d 748). (b) It is unlawful for any person while having 0.08 percent or more, by weight, of Driver Defined . alcohol in hislher blood to drive a vehicle and, The driver is the person who drives or is in when so driving, do any act forbidden by law or actual physical control of the vehicle (Vehicle neglect any duty imposed by law in the driving of Code, Section 305). The person steering the vehi­ the vehicle, which act or neglect proximately . cle is considered the driver, even if the vehicle is causes bodily injury to any person other than the being towed or pushed by another vehicle. The driver .... (c) In proving the person neglected any duty identity of the driver may be proven by circum­ imposed by law in the driving of the vehicle, it is stantial evidence (People v. Moreno 188 CA3d not necessary to prove that any specific section of 1179). this code was violated. Driving Discussion To constitute "driving" for purposes of The above offenses are similar to those set DWIjDuI statutes, some movement of the vehicle forth under Vehicle Code Section 23152 (a) and is necessary. It need only be a slight movement. (b) with the below two additional requirements: The movement may be coasting downhill or ped­ 1. bodily injury to any person other than the aling a mo-ped, as long as the vehicle is capable of defendant, and moving under its own power. A movement of a few 2. the injury was caused by an act or failure feet is sufficient (People v. Padilla 184 CA 3d to act which constitutes a violation of the 1022). code or of a duty imposed by the code. Vehicle 15.15 Operating an Aircraft or Boat While A vehicle is defined as any device which under the Influence permits persons or property to be propelled, drawn, or moved upon a public highway, except a There are various code provisions which device moved exclusively by human power (Vehi­ make it unlawful to operate an aircraft or boat cle Code, Section 670). The definition includes while under the influence of alcohol or drugs. The animal-drawn vehicles, go-carts, forklifts, snow­ restrictions are similar to those for driving a mobiles, bulldozers, mopeds and mobile cranes vehicle, except that it is illegal to operate an (People v. Jordan 75 CA 3d Supp. 1). Note: there aircraft (on the ground or in the air) with a blood are separate code sections applying to operating a alcohol level of .04 or more. Controlled Substances and Alcohol Related Crimes 139

15.16 Juveniles 4. The driver has no right to consult with counsel prior to taking the test or making a Vehicle Code 23140 Driving While Under the choice of which test to take. Influence of Alcohol- Under Age 18 5. Ifhe or she is unable to complete one test, (a) It is unlawful for a person under the age of he or she must submit to another one. 18 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. Note: Miranda warnings are not required during (b) A person may be found to be in violation field investigations prior to an arrest. of subdivision (a) if the person was, at the time of driving, under the age of 18 years and under the CLASSROOM DISCUSSION QUESTIONS influence of, or affected by an alcoholic beverage 1. Explain the general rules regarding the trans- regardless of whether a chemical test was made to fer of controlled substances. determine that person's blood-alcohol concentra­ 2. Define the term "drug." tion and if the trier offact finds that the person had 3. What is a "narcotic?" consumed an alcoholic beverage and was driving a 4. Explain the differences between Vehicle vehicle while having a concentration of 0.05 per­ Code, Sections 23152 and 23153. cent or more, by weight, of alcohol in his or her 5. What are the essential differences between blood. the various schedules under the Uniform Controlled Substances Act? Discussion 6. Who may prescribe a controlled substance Vehicle Code 23140 makes it unlawful for a under the provisions of the Uniform Control­ juvenile whose blood alcohol level is .05 or more led Substances Act? to drive a vehicle. A violation under this section 7. What records are required to be kept by a may be established even if no chemical test was person who prescribes controlled taken. Note: this section applies only to driving substances? under the influence of alcohol and does not apply 8. What are the elements of unlawful possession to driving under the influence of drugs. If this of a controlled substance? section does not apply, the juvenile may still be SELF STUDY QUIZ prosecuted under regular DWI/DUI offenses. True/False 1. The term "marijuana" as used in the Act, 15.17 Chemical Test Advisement includes the seeds of the plant. Under the provisions of Vehicle Code, Section 2. A controlled substance is a substance or drug 23157, prior to asking a driver to submit to a listed in the Act. chemical test, the driver must be advised of the 3. Opium is a narcotic drug. following items: 4. Opiates are habit forming. 1. Refusal to submit to, or failure to com­ 5. There are six schedules under the Act. plete, a chemical test will result in suspen­ 6. Opium and morphine are Schedule II sion or revocation of his or her driving substances. license and mandatory imprisonment 7. Lysergic acid is a Schedule III substance. upon conviction. 8. Permits are required prior to the manufacture 2. He or she has a choice of either blood, of D-Iysergic acid. breath or urine test. Note: if taken to a 9. Possession of minor amounts of marijuana is medical facility for treatment, the driver normally a misdemeanor. must take what evertests are available. 10. Growing marijuana is a misdemeanor. 3. A refusal to take or a failure to complete a 11. Providing marijuana to a minor may be a test may be used in court against the driver felony. as evidence that the driver was driving in 12. It is not unlawful for an addict to drive a violation of Vehicle Code Sections 23152, vehicle unless he or she is under the influence or 23153. of a drug or alcohol. 140 Chapter 15

13. The person steering the vehicle is considered 14. It is not unlawful to drive while under the as the driver. influence of a du1y prescribed drug. Chapter 16

Modification of the Law He who does not prevent a crime when he can, encourages it. (William Seneca)

16.1 Appellate Court Decisions justice system. For the U. S. Supreme Court to modify California criminal law, however, the When the U. S. Constitution was written, it decisions must be based on the U. S. Constitution was expected that the judicial branch would not be or federal law. involved in the modification of laws. Under the separation of powers doctrine, this duty was dele­ Clear examples of the U. S. Supreme COUlt gated to the legislative branch. Appellate courts modifying the law are the Miranda and the Mapp do, however, make law and modify existing laws v. Ohio cases. In both of these cases, the court through court decisions interpreting the constitu­ modified the existing law. Note: the modifications tion and statutes. The judicial legislation is indi­ were accomplished even though the court has only rect and a "spinoff' of the judicial duties of the the power to approve or reverse a lower court appellate courts. If the actions of the legislature conviction. are within its scope of power and do not violate any constitutional protections, the courts do not 16.3 California Supreme Court Decisions pass on the reasonableness, wisdom, and pro­ priety of the law (People v. Ferguson 129 CA 300). The California Supreme Court makes the final decision on those issues involving the Penal 16.2 United States Supreme Court Decisions Code which do not involve federal constitutional The U. S. Supreme COUlt has been a leader in rights or federal law. The court's authority like that of the U. S. Supreme Court is limited only to modifying criminal law and procedure. As the results of the "criminal justice revolution" started approvals or disapprovals of lower court deci­ sions. With the 1986 changes in personnel on the by the Warren Court (the Court during Chief Justice Earl Warren's tenure: 1953-69), every court, this court is also a new court. major stage of the criminal justice process has been substantially modified since 1962 (Israel and 16.4 Development of California Statutory LaFave, Criminal Procedure: Constitutional Lim­ Law itations). Every Supreme Court term since 1962, Article IV, Section 1, of the California has resulted in judicial decisions by the court Constitution which have changed the criminal justice system. Changes in the court membership in the past eight The legislative power of this state is vested in years has, however, created a new court. The the California Legislature which consists of Sen­ directions that the new court will take will proba­ ate and Assembly, but the people reserve to them­ bly continue to modify or fine tune the criminal selves the powers of initiative and referendum.

141 142 Chapter 16

Discussion 16. Labor Code (Lab. C) 17. Military & Veterans Code (Mil. & Vet. In California, as in other states and the federal C) government, all statutory laws must be initiated 18. Penal Code (P C) by the state legislature or by referendum or initia­ 19. Code (prob. C) tive. The modification of laws or the creation of 20. Public Resources Code (Pub. Res. C) new laws by referendum or initiative is discussed 21. Public Utilities Code (Pub. Ut. C) in Chapter 1. 22. Revenue and Taxation Code (Rev. C) The California legislature is made up of two 23. Streets and Highways Code (Sts. & H C) houses, the Senate and the Assembly. Each house 24. Unemployment Insurance Code (Unemp. can initiate a new statute or modification to an Ins. C) existing one. The new law or modification, 25. Vehicle Code (V C) however, must be approved by both houses before 26. Water Code (Water C) it is sent to the Governor for final action. If the 27. Welfare & Institutions Code (Welf. C) governor signs the bill, it becomes the law. If the governor vetoes the bill, it goes back to the legislature. If both houses of the legislature over­ 16.5 City and County Ordinances ride the governor's veto by a two-thirds vote in each house, the bill becomes law. Unless the City and county ordinances are enacted to fit enactment is an emergency measure, there will be the special needs oflocal cities or counties. Since a "cooling off' period before it is effective. The cities and counties derive their power from state effects of repeal and amendment of statutes are , they have only the power to enact ordi­ discussed in Glapter 1. nances as granted by the state. Local ordinances are normally modified by action oflocal boards of When a new law or modification is introduced supervisors and city and town councils. by a house member, it is called a "bill." If and when the bill becomes law, it is then considered as a "statute." If it is a general statute, it will be 16.6 United States Code integrated into one of the state's twenty-seven codes. The basic statutory (federal law) is contained in the United States The twenty-seven different codes in Califor- Code (U.S.C.). The code is divided into 50 gen­ nia are: eral subject areas, called "titles". The titles are 1. Business and Professions Code (B & P) numbered from 1 to 50. Title 18 is the federal 2. Civil Code (C C) criminal code. In citing the U. S. Code, the title 3. Code of Civil Procedure (C C P) number is cited first, then U.S.C. then section 4. Commercial Code (Com. C) number. For example 18 U.S.C. 302 defines the 5. Corporations Code (Corp. C) federal crime of arson. Changes to the U. S. Code 6. Education Code (Educ. C) are made by statutes which originate in one of the 7. Elections Code (Elec. C) , houses of Congress. Note: appropriations bills 8. Evidence Code (Evid. C) may originate only in the House of 9. Financial Code (Fin. C) Representatives. 10. Fish and Game Code (Fish & Game C) 11. Food an.d Agricultural Code (F & Arig. Note: often the cite is to the "annotated" C) code. In the above example, the cite for arson 12. Government Code (Govt. C) under the federal code would be 18 U.S.C.A. 302. 13. Harbors & Navigation Code (Harb. & "Annotated codes" contain, in addition to the Nav. C) official text of the code, historical information on 14. Health and Safety Code (H & S C) the text, cross-references to legal sources and 15. Insurance Code (Ins. C) notes on court decisions regarding the text. Modification of the Law 143

16.7 Victims Bill of Rights (d) Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two­ California Constitution, Article I, Section 28 thirds vote of the membership in each house of the (proposition 8) Legislature, relevant evidence shall not be (a) The People of the State of California find excluded in any criminal proceeding, including and declare that the enactment of comprehensive pretrial and post conviction motions and hearings, provisions and laws ensuring a bill of rights for or in any trial or hearing of a juvenile for a victims of crime, including safeguards in the criminal offense, whether heard in juvenile or criminal justice system to fully protect those adult court. Nothing in this section shall affect any rights, is a matter of grave statewide concern. The existing statutory rule of evidence relating to rights of victims pervade the criminal justice privilege or hearsay, or Evidence Code, Sections system, encompassing not only the right to res­ 352, 782, or 1103. Nothing in this section shall titution from the wrongdoers for financial losses affect any existing statutory or constitutional right suffered as a result of criminal acts, but also the of the press. more basic expectation that persons who commit felonious acts causing injury to innocent victims (e) Public Safety Bail. A person may be will be appropriately detained in custody, tried by released on bail by sufficient sureties, except for the courts, and sufficiently punished so that the capital crimes when the facts are evident or the public safety is protected and encouraged as a goal presumption great. Excessive bail may not be of highest importance. Such public safety extends required. In setting bail, reducing or denying bail, to public primary, elementary, junior high, and the judge or magistrate shall take into considera­ senior high school campuses, where students and tion the protection of the public, the seriousness of staff have the right to be safe and secure in their the offense charged, the previous criminal record persons. of the defendant, and the probability of his or her To accomplish these goals, broad refonus in appearing at the trial or hearing of the case. Public the procedural treatment of accused persons and safety shall be the primary consideration. the disIX>sition and sentencing of convicted per­ A person may be released on his or her own sons are necessary and proper as deterrents to recognizance in the court's discretion, subject to criminal behavior and to serious disruption of the same factors considered in setting bail. people's lives. However, no person charged with the commission (b) Restitution. It is the unequivocal inten­ of any serious felony shall be released on his or her tion of the People of the State of California that all own recognizance. persons who suffer losses as a result of criminal Before any person arrested for a serious fel­ activity shall have the right to restitution fTom the ony may be released on. bail, a hearing may be held persons convicted of the crimes for losses they before the magistrate or judge, and the prosecut­ suffer. ing attorney shall be given notice and reasonable Restitution shall be ordered from the con­ opportunity to be heard on the matter. When a victed persons in every case, regardless of the judge or magistrate grants or denies bailor release sentence or disIX>sition imposed, in which a crime on a person's own recognizance, the reasons for victim suffers a loss, unless compelling and extra­ that decision shall be stated in the record and ordinary reasons exist to the contrary. The Legis­ included in the court's minutes. lature shall adopt provisions to implement this (f) Use of Prior Convictions. Any prior felony section during the calendar year following adop­ conviction of any person in any criminal proceed­ tion of this section. ing, whether adult or juvenile, shall subsequently (c) Right to Safe Schools. All students and be used without limitation for purposes of staff of public primary, elementary, junior high impeachment or enhancement of sentence in any and senior high schools have the inalienable right criminal proceeding. When a prior felony convic­ to attend campuses which are safe, secure and tion is an element of any felony offense, it shall be peaceful. proven to the trier of fact in open court. 144 Chapter 16

(g) As used in this article, the term "serious pretrial detention is a regulatory matter not penal, felony" is any crime defined in Penal Code, Sec­ the denial of bail does not deprive the defendant of tion 1192.7(c). his constitutional right to trial by jury. The Eighth Discussion Amendment's prohibition against excessive bail is a limitation on the amount of bail that ajudge may Proposition 8, better known as "Victim's Bill impose, but is not a limitation of a state's right to of Rights, " was passed by the California voters on regulate eligibility for bail. June 9, 1982. The proposition changed the law regarding diminished capacity, right to bail, Restitution standing, restitution, plea bargaining, the use of Proposition 8 provided that restitution shall be prior felony convictions for impeachment and the ordered from a convicted person to the victim use of the exclusionary rule for violations of the unless the court finds compelling and extraordin­ state constitution. Proposition 8 is applicable only ary reasons for not ordering restitution. The to prosecutions for crimes committed on or after requirement is now contained in PC 1202.4. its effective date of June 9, 1982 (People v. Smith 34 C 3d 251). Prior Convictions Truth in Eyidence The proposition provides that any prior felony conviction or any person in any criminal proceed­ The primary purpose of ' 'Truth in Evidence" ing may be used without limitation for purposes of portion of Proposition 8 was to eliminate the impeachment or enhancement in any criminal "independent state grounds" as a basis for the proceedings. , 'exclusionary rule." The cases of In re Lance W., (37 C 3d 873) and People v. May (44 C 3d 309) The Evidence Code, Section 788 provides that indicate that Proposition 8 has achieved this the judge in a criminal trial has discretion to purpose. exclude impeachment evidence of prior felony In the case ofIn re Lance W. (37 C 3d 873), the convictions of the accused, if the judge deter­ State Supreme Court ruled that Proposition 8 mined that the probative value and credibility of changed the remedy for a violation of the substan­ the prior convictions are outweighed by the risk of tial rights of citizens under the state constitution. undue prejudice. In People v. Olmedo (167 CA 3d That "independent state grounds" is no longer a 1085), a California Court of Appeals held that basis for excluding evidence from a trial. Lance W Proposition 8 did not change that section in that addressed unreasonable searches and seizures the judge still had the discretion to exclude the (Fourth Amendment problems). People v. May (44 prior conviction, if the risk of undue prejudice C 3d 309) held that Proposition 8 had the same outweighed the probative value of evidence. effect with regard to the Fifth and Sixth Amend­ The California Supreme Court, in People v. ments, i.e., confessions, Miranda problems, and Castro (38 C 3d 301), held that the drafters of the right to counsel. [Note: now only a violation of a initiative did not intend to abolish a trial court's "federal constitutional" right will be the basis for power to exclude certain evidence, but intended excluding evidence under the exclusionary rule.] merely to

3. the reduction or dismissal would not result 10. When does a "bill" become a "statute?" in a substantial change in sentence (P C 1192.7). SELF STUDY QUIZ CLASSROOM DISCUSSION QUESTIONS True/False 1. How does an appellate court modify existing 1. Proposition 8 eliminated plea bargaining in law? California. 2. Who makes the final decision on state crimi~ 2. The primary concern of the judge in all bail nal law issues that don't involve federal decisions is public safety. issues? 3. Proposition 8 eliminated the insanity 3. What are the restrictions on plea bargaining defense. in cases involving "serious felonies?" 4. The U. S. Supreme Court is not involved in 4. Why would the defense be willing to stipulate reviewing state criminal convictions. as to the fact of a prior conviction? 5. Proposition 8 eliminated the discretion of 5. What is the present legal insanity test in trial judges regarding the admissability of California? prior convictions. 6. Under what circumstances can evidence of 6. Judicial legislation is direct and a "spinoff" diminished capacity be introduced into evi­ of the legislative power. dence in a criminal case? 7. The California Supreme Court makes the 7. To which branch of the state government is final decision on state issues. the legislative function delegated? 8. In the State of California, only the Assembly 8. What rights does a victim have at a sentenc­ can initiate a new criminal statute. ing proceeding? 9. If one of the two houses of the legislature and 9. What is the primary concern of the judge in the governor agreed, a bill becomes a law. setting bail in a case involving a serious 10. Local ordinances are norn1ally modified by felony? legislative action of the state legislature. SUBJECT INDEX

A elements, 60 Defrauding Proprietors, 52 Abduction, child, 112 entry requirement, 60 Deliberation, 39 Abortion. 123 inhabited defined, 62 Digests, 9 Accessories, 39-40 locked vehicle, 62 Disorderly House, keeping of, 123 Accident, 35 structure, 61 Dissolute conduct, 98 Actus reus, 31 Burglary, tools, possession of, 64 DA, charging considerations, 118 Advisement, chemical test, 139 Burning own property. 69 Disturbing the peace, 72 Aircraft, operating under influence, 138 Domestic Violence Prevention Act, 79 Amendment of statutes, 3 C Double jeopardy, 24 American Revolution, 2 California Digest, 9 Driver's license, forgery of, 126 Animals, sexual assault of, 100 California Jurisprudence, 9 Driving under the influence,137 Apparent ability, 40 CALllC, 10 Drug, defined, 133 Arrest, 113-115 Capacity, diminished, 36 Dual federalism, 7 by private persons, 114 Capital crimes, 37 Dual sovereignty, doctrine of, 26 resis ting, 115 Card-Monte, 51 Due process, 2 restrain, 113 Cause, concurrent, 33 DUI/DWI, 137 summoning assistance, 114 Check offenses. 129 Duress, 35 time of, 114 Chemical test advisement, 139 under warrant, 114 Child E Arson, 68-70 abduction, 112 Embezzlement, 45 attempted, 70 abuse, 79 public funds, 50 burning requirement, 68 concealment, 113 England,2 defined,67 neglect, 80 Entrapment, 36 elements, 68 sex films, 120 Equal protection, 6 motive, 68 Children, 34 Evidence Code, 2 Arsonist, Citations, 8 Ex post facto law, 6 notice of release, 70 Citators,9 Excusable homicide, 90 psychiatric examination, 70 Common law, 2 Exposure, indecent, 98 Asportation, 46, 105 Conflicts, statutory, 16 Extortion, 106 Assault,75-79 Consanguineous, 96 defined, 106 attempted, 77 Conspiracy, 41 elements, 106 deadly weapon, 77, 78 Constitutions, 1 fear induced by tlrreat, 106 defined,75 Construction funds, diversion of, 54 under color of office, 106 elements, 75 Controlled substances, 133-136 felonious, 77 defined, 133 F from motor vehicle, 77 permits for sale, 135 False imprisonment, 111 simple, 77 reporting requirements, 135 False message, sending of, 128 Attempts, 40 Convictions, prior, 24 False signature, to newspaper, 128 Attorney General, 10 Copulation, oral, 99 Federal issues, 8 Corpus delicti, 31, 85 Felony, B Corruptly, defmed, 15 defined,21 Bail, 143-144 Counterfeit dies, possession of, 131 drunk driving, 138 Basic rights, 1 Counterfeiting, 130 Felony-murder rule, 87 Battery, 76-79 Court decisions, Fetus, murder of, 86 cohabitant, 79 appellate, 141 Films, sex, 120 defined, 75, 76 U.S. Supreme Court, 141 First degree murder, 86 elements, 76 Court process, simulating, 108 Fish and Game Code, 2 on peace officer, 76 Crime, defmed, 1,13 Flan1ffiable material,69 sexual,l00 Crimen falsi, 5 Forged bills, possession of, 129 spousal,79 Crimes, specific intent, 39 Forged instruments, filing of, 128 Begging, 71 Criminal act, 31 Forgery, 125-127 Benthan1, Jeremy, 75 Criminal homicide, defined, 85 acts constituting, 125 Berdin, Richard, 133 Criminal law, alteration, 127 Bigmany, 123 functions of, 14 corporate seal, 128 Bill of attainer, 6 purposes of, 14 defined, 126 Brain death, 86 Criminologists, 5 elements of, 126 Burglary, 59-64 instruments subject to, 127 building, 61 D uttering, 127 by torch, 63 Dangerous Weapons' Control Law, 80 Former jeopardy, 25 completed crime, 62 Deadly force, use by police officer, 91 Free speech, 117 degrees, 62 Death penalty, 37 Fuller, Thomas, 45 Subject Index

G-H L Ordinances. 142 Gambling, 124 Labor fraud, 49 Organized crime, 124 Gang rape, 95 Larceny, 50 General savings clause, 4 LARMAC,10 p High crimes, 5 Law Reviews, 10 Pandering, 122 Home Protection, 91 Laws of Arrest, ll3 Parent, neglect of, 80 Homicide, 85-86 listed, H19 Participation, passive, 31 corpus delicti, 85 Lease fraud, 48 Parties, 39 defIned,85 Lessor and included offenses, 24 Peeping, 71 proximate cause, 86 Lewd conduct, 71, 98 Penal Statutes, construction of, 14 tim~ requirements, 86 Liability, Perjury. 43 House of ill-fame, 123 civil, 17 Peyote, 137 .. strict, 33 Pimping, 122 Live conduct, obscene, 121 Plea Bargaining, 145 I Loitering, 71 Police power, 7 Idiots, 34 Louisiana, 2 Precedent, 2 Immediate presence, 104 Preemption, 7 Imprisonment, false, ill M Prescriptions, 135 Incest, elements, 96 Mala in Se, 4 Principles, 39 Indecent exposure, 98 Malice, 38 Prior convictions, 24, 143 Independent state grounds, 16 Malice Privacy, 118 Infractions, defined, 21 aforethought, 39, 87 Private person arrest, 114 Inhabited, defined, 59 defined,15 Procedural law, 2 Initiatives, I, 2, 141 expressed, 86 Proof, preponeitiJranCe of, 17 Insanity, 36 implied, 86 Property, defirl.ed, 15 Insanity, 37 Maliciously, 38 Proposition 8,36,143-45 Insanity, temporary, 37 defined, 15 Prostitution, 71 Intent, Malum prohibitum, 4 abduction for, 123 general,32 Manslaughter, 89-90 Proximate cause, 33 specific, 32 gross negligence defined, 89 Public nuisance, 72 transferred, 32, 87 involuntary, 89 Public offense, 13 Intention, 38 punishments, 89 defined,21 Intoxication, 39 voluntary, 89 Punishment, 18 Involuntary servitude, 1 Marijuana, 133 objectives of, 23 Marrying spouse of another, 123 persons liable to, 42 J Marshall, Jo1m,17 Jail, maximum term, 23 Mayhem, 78 R Jefferson, Thomas, 17 Misdemeanor, dermed, 21 Rape, 93-96 Jeopa~dy, Misfortune, 35 acts constituting, 93 attachment of, 26 Mistake of fact, 34 by force or fear, 94 former, 25 honest, 35 consent defined, 94 Judicial review, 17 Month, defined, 15 elements of, 94 Jurisdiction, 18 Moral turpitude, 5 spousal,96 personal, 18 Morgan, Jo1m, 109 statutory, 95 subject matter, 18 Motive, 38 unconscious victim, 95 Justillable homicide, 90 Murder, 86-89 Receiving stolen property. 54 Juvenile, multiplicity, 88 Referendunl,141 arrest of, 115 punishments, 88 Rental fraud, 48 under the influence, 139 Repeal by implication, 4 N-O Repeal of statutes, 3 Narcotic drug, dermed, 133 Res judicata, 25 K Neglect, defined, 15 Research methodology, 8 Key numbers, 9 Negligence, criminal, 33 Restitution, 143-144 Keys, duplication of, 65 Nighttime, defined, 15 Retreat, duty to, 91 Kidnapping,l09-ill Obscene material, advertising of, 121 Review, judicial, 17 defined, 109 Obscene matter, sale of, ll9 Riot, 71 elements, 110 Obscenity, 118 Road Camps. 22 for ransom, 111 Offenses, Robbery, 103-106 for robbery, 111 identity of, 25 asportation. 104 for sex offel1ses, ill lessor and included, 24 completed crime. 106 movement required, 110 Official records, altering, 128 defined, 103 posing as, ill Opiate, defined, 134 elements, 104 Knowingly, defined, 15 Opium, 134 first degree, 103 Knowledge, 39 Oral copulation, 99 force or fear, 104 Subject Index

intent to steal, 105 Spousal rape, 96 vending machine, 65 second degree, 103 Spouse, neglect of, 80 Threatening letters, sending, 107 Rout, 71 Standards of conduct, 1 Torts, 17 Stare Decisis, 3 Trespassing, 71 S Statute of limitations, 27 TRO,79 Safe schools, right to, 143 modification of, 28 Truth in Evid~nce, 144 Scaping, tickets, 131 Statutes, amendment of, 3 Secretary of State, 2 Statutory Self-defense, 91 Bar, 27 U-V Seneca, William, 141 rape, 95 Unconsciousness, 35 Sentence enhancements, 145 Stealing, 45 Uniform Controlled Substances Act, 133 Sentencing, Stolen property, United States Code, 142 concurrently, 23 possession of, 55 Unity required, 31 consecutively, 23 receiving, 54 Unlawful assembly, 71 determinate, 23 Strict liability, 33 Unlawful entry, 64 indeterminate, 23 Substantive law, 2 Unlawful sexual intercourse, 95 Serial numbers, alteration of, 56 Suicide, 90 Unlawfully causing a fire, 69 Sex act, induced by fraud, 97 Supremacy Clause, 16 Vagueness, 118 Sex films, 120 Vandalism, 70 Sex offender, registration of, 100 T Venue, 18, 19 Sexual battery, 100 Theft, 45-65 Victim, consent of, 36 Sexual penetration, 94 by access card, 52 Victim's rights, 145 Shakespeare, 85, 93 by embezzlement, 52 Victimless crimes, 5 Shaw, George Bernard, 31, 59 by trick or device, 51 Victims Bill of Rights, 143 Schedules, controlled substances, 134 common law, defined, 46 Shepard's, 9 elements of, 46 Signature, obtaining by threat, 107 grand,49 w-z Sodomy, 99-100 lost property, 53 Welfare and Institutions Code, 2 elements, 100 mislaid property, 53 Wilde, Oscar, 103 . Solicitation, 42 of utility services, 52 Willfully, defined, 15 Sources of law, 1 petty,49 William the Conqueror, 2 Special circumstances, 37 trade secrets, 54 Witkin, 9 Speech, free, 117 vehicle, 53 Wobblers, defined, 22 TABLE OF CASES

Arfsten v. Superior Court ...... 7 People v. Arline ...... 19, 104 Boro v. Superior Court ...... 95 People v. Armentrout ...... 32 Brede v. Powers ...... 5 People v. Armstrong ...... 4, 16, 32 Burks v. U.S ...... 13,26 People v. Austin ...... , ...... 98 Butler v. Wentworth ...... 5 People v. Baker ...... 96 Cardenas v. Superior Court ...... 26 People v. Barnes ...... 76, 95 Carlos v. Superior Court ...... 14 People v. Barranza ...... 36 Commonwealth v. O'Brien ...... 106 People v. Barry ...... 25, 60 Commonwealth v. Ritter ...... 14 People v. Bartges ...... 126 Curry v. Superior Court ...... 26 People v. Bauman ...... 88 Davis v. Hearst ...... 38 People v. Beach ...... 47 Ex Parte Cohen ...... 15 People v. Beal ...... 105 Ex Parte Finley ...... 127 People v. Beasley ...... 26 Ex Parte Solomon ...... 16 People v. Becker ...... 33 Fair Pol. Prac. Com. v. Sup. C...... 2 People v. Beggs ...... 107 Gladden v. State ...... 33 People v. Beller ...... 103 Green v. U.S ...... 25 People v. Benadivez ...... 94, 95 Griggs v. Superior Court ...... 18 People v. Bender ...... 87 In re Coffey ...... 107 People v. Benfo~d ...... , . . 36 In re Dixon ...... 131 People v. Best ...... 95 In re Giannini ...... 118 People v. Bibby ...... 127 In re Gladys ...... 34 People v. Blue ...... 104 In re Greg F. .•...... •...... •....•...... 53 People v. Bonilla ...... 60 In re James ...... 77 People v. Borra ...... 105 In re Kent W...... 69 People v. Bottger ...... 42 In re Lance W...... 144 People v. Braiker ...... 53 In re Lane ...... 7 People v. Brain ...... 33 In re Michael ...... 104 People v. Brannon ...... 87 In re Michael B...... 34 People v. Bratis ...... 131 In re Nordin ...... 144 People v. Brittian ...... 60 In re Robert P...... 31 People v. Britz ...... 55 In re Smith ...... 98 People v. Brotherton ...... 127 James v. Superior Court ...... 115 People v. Brown ...... 50, 127 Kovacs v. Cooper ...... 7 People v. Brunwin ...... 47 Laurel v. Superior Court ...... 104 People v. Budish ...... 69 Mapp v. Ohio ...... 141 People v. Buenaflore ...... 33 Marbury v. Madison ...... 17 People v. Burns ...... 62 Marsh v. State Bat ...... 5 People v. Byrd ...... 137 McNulty v. California ...... 4 People v. Cadman ...... •...... 107 Michael M. v. Superior Court ...... 95 People v. Callegri ...... 145 Miller v. California ...... 117 People v. Cardona ...... 65 Mills v. Trinity County ...... 2 People v. Carson ...... 88 Miranda v. ...... 141, 144 People v. Carter ...... 46 Moore v. City of Albany ...... 3 People v. Castro ...... 144 Murray S. & Fix. v. Sullivan ...... 107 People v. Catalano ...... 71 Oregon v. Kennedy ...... 26 People v. Caudillo ...... 110, 111, 112 Otter Tail Power Co. v. Von Bank ...... 4 People v. Cavanaugh ...... 18 Paris Adult Theatre v. Slaton ...... 118 People v. Charles ...... 41 Payton v. U.S ...... 115 People v. Chastain ...... 64 People v. Ailanjian ...... 46 People v. Chavez ...... 95 People v. Alfrand ...... 94 People v. Choynski ...... 107 People v. Allison ...... 60 People v. Church ...... 104 People v. Alvardo ...... 106 People v. Clark ...... 127 People v. Anderson ...... 94 People v. Cleary ...... 47 People v. Apodaca ...... 86 People v. Clifton ...... 59 Table of Cases

People v. Clifton ...... 62 People v. Hood ...... 32 People v. Coefiled ...... 87 People v. Hoover ...... 91 People v. Coen ...... 25 People v. Horn ...... 37 People v. Coleman ...... 35, 104 People v. Ing ...... 95 People v. Collins ...... 61 People v. Ireland ...... 87 People v. Cook ...... 63, 64 People v. Jamarillo ...... 87 People v. Cox , ...... 35 People v. Johnson ...... 106 People v. Craig ...... 94 People v. Jones ...... 42, 60, 104 People v. Cullen ...... 127 People v. Jordan ...... 138 People v. Davis ...... 41, 104 People v. Kagan ...... 127 People v. Dawson ...... 6 People v. Karsai ...... 94 People v. DeFoor ...... 78 People v. Keith ...... 138 People v. Deibert ...... 4 People v. Kelly ...... 15, 39 People v. Di Ryana ...... 127 People v. King ...... 15 People v. Diamond ...... 70 People v. Kiperman ...... 51 People v. Diaz ...... 138 People v. Knowles ...... 2 People v. Dillon ...... 87, 104 People v. Kohn ...... 108 People v. Dobbins ...... 4 People v. Koller ...... 96 People v. Donegan ...... 37 People v. Kunkin ...... ' ...... 47 People v. Dontanville ...... 98 People v. Lamica ...... 59, 60 People v. Drew ...... 37 People v. Lane ...... 38 People v. Durr;mt ...... 38 People v. Langdon ...... 94 People v. Earl ...... 61 People v. Lanzit ...... 40 People v. Edwards ...... 46, 55, 60 People v. Lavender ...... 104 People v. Egan ...... 77 People v. Lavine ...... 107 People v. Eggleston ...... 25 People v. LeBlanc ...... 105 People v. Estes ...... 104 People v. Lewis ...... 33, 85, 86 People v. Failla ...... 60, 62 People v. Lewis ...... 59 People v. Ferguson ...... 141 People v. Lilliock ...... 28 People v. Fleming ...... 55 People v. Littleton ...... 105 People v. Flumerfelt ...... 35 People v. Lizarraga ...... 50 People v. Folcey ...... 46 People v. Loomis ...... 37 People v. Ford ...... 105, 127 People v. Lorenzo ...... 51 People v. Fowler ...... 86 People v. Lortz ...... 113 People v. Fox ...... 53 People v. Lowen ...... 60 People v. Franco ...... 48 People v. Lundgren ...... 71 People v. Freeman ...... 68 People v. Mackey ...... 95 People v. Freudenberg ...... 86 People v. Maggart ...... 51 People v. Fritz ...... 145 People v. Malcolm ...... 62 People v. Frye ...... 94 People v. Mar Gin Suie ...... 85 People v. Fujita ...... 51 People v. Markus ...... 61 People v. Galvin ...... 110 People v. Marquez. , ...... 62, 63 People v. Garcia ...... 61 People v. Marschalk ...... 35 People v. Garin ...... 126 People v. Martin ...... 62 People v. Garnett ...... 60 People v. Martinez ...... 100 People v. Gauze ...... 60 People v. Mason ...... 52 People v. George ...... 69 People v. Massengale ...... 107 People v. Gibbons ...... 61 People v. Massie ...... 62 People v. Gibson ...... 41 People v. Maxwell '" ...... 110, 111 People v. Gill ...... 86 People v. May ...... 144 People v. Gordon ...... 76 People v. McCarthy ...... 37 People v. Green ...... 60, 68, 69 People v. McCoy ...... 78, 95 People v. Greening ...... 68 People v. McElrath ...... 100 People v. Gunnerson ...... 88 People v. McGill ...... 28 People v. Guthrie ...... 63 People v. McNeer ...... 26 People v. Haeussler ...... 138 People v. McNulty ...... 13 People v. Haggerty ...... 68 People v. Medrano ...... 71 People v. Harris ...... 95, 105 People v. Mentzer ...... 69 People v. Hays ...... 104 People v. Methever ...... 35 People v. Henderson ...... 87, 111 People v. Meyer ...... 46 People v. Herbert ...... 25, 85 People v. Miller ...... 24, 61 People v. Hernandez ...... 96 People v. Milton ...... 88 People v. Hess ...... 50 People v. Moan ...... 86 People v. Hiltel ...... 68 People v. Moore ...... 104 People v. Hinshaw ...... 26 People v. Morales ...... 104 People v. Holt ...... 87 People v. Moreland ...... 62 Table of Cases

People v. Moreno ...... 138 People v. Stephenson ...... 11 0 People v. Morrison ...... 13 People v. Stevens ...... 104 People v. Mosqueda ...... 76 People v. Stewart ...... 54 People v. Muis ...... 64 People v. Sullivan ...... 55 People v. Nance ...... 68 People v. Sup. C. (Thompson) ...... 145 People v. Navarro ...... 35 People v. Sutton ...... 24 People v. Nible ...... 61 People v. Swanson ...... 50 People v. O'Neil ...... 138 People v. Tabucchi ...... 18 People v. Ogunmola ...... 95 People v. Talbot ...... 60 People v. Olmedo ...... 144 People v. Taylor ...... 35, 51 People v. Oppenheimer ...... 107 People v. Thomas ...... 25 People v. Otterman ...... 46 People v. Thornton ...... 11 0 People v. Pace ...... 6, 46 People v. Toche ...... 36 People v. Padfield ...... 28 People v. Thrner ...... 107 People v. Padilla ...... 138 People v. Thedt ...... 28 People v. Parker ...... 63, 127 People v. Vela ...... 94 People v. Parrish ...... 41 People v. Velez ...... 35 People v. Patello ...... 68 People v. Vernon ...... 32 People v. Peabody ...... 33 People v. Vigil ...... 79 People v. Penny ...... 33 People v. Vogel ...... 34 People v. Peppercorn ...... 107 People v. Walters ...... 60 People v. Perhab ...... 108 People v. Washington ...... 87 People v. Perini ...... 2 People v. Webb ...... 26 People v. Petti ...... 26 People v. Weber ...... 13 People v. Pettinger ...... 60 People v. Welsh ...... 105 People v. Pettis ...... 96 People v. Werner ...... 40 People v. Piper ...... 136 People v. Whalen ...... 75 People v. Pollock ...... 19 People v. Wheeler ...... 95 People v. Potter ...... 94 People v. Whipple ...... 3 People v. Powell ...... 105 People v. Whitney ...... 53 People v. Price ...... 108 People v. Williams ...... 32 People v. Puckett ...... 76 People v. Wirth ...... 36 People v. Quiel ...... 46 People v. Wolfe ...... 60 People v. Quinn ...... 105 People v. Woo ...... 38 People v. Ralph ...... 15 People v. Woods ...... 62 People v. Ramos ...... 105 People v. Wright ...... 61, 79 People v. Ranson ...... 76 People v. Yoder ...... 62 People v. Ravenscroft ...... 61 People v. Zeihm ...... 96 People v. Ray ...... 94 People v. Zuckerman ...... 92 People v. Re Estrada ...... 47 Re Application of Ahart ...... 35 People v. Renteria ...... 105 Re Application of Harder ...... 6 People v. Richardson ...... 18 Re Application of Lockett ...... 3, 15 People v. Roberts ...... 98 Re Application of Westenberg ...... 5 People v. Rose ...... 28, 50, 126 Re Estrada ...... 4 People v. Royal ...... 94 Re Newbern ...... 15 People v. Rupp ...... 40 Re O'Connell ...... 5 People v. Russel ...... 96, 127 Re Porterfield ...... 15 People v. Rye ...... 88 Roe v. Wade ...... 124 People v. Sac. Bros' Butchers' ...... 22 Roth v. United States ...... 117 People v. Schoenfield ...... 112 Sherman v. U.S ...... 36 People v. Scofield ...... 59 Sobiek v. Superior Court ...... 29 People v. Scott ...... 98 Stanley v. Georgia ...... 117, 118 People v. Searcy ...... 127 State v. Betts ...... 7 People v. Semone ...... 86 State v. Shedoudy ...... 4 People v. Sheasbey ...... 105 Tennesse v. Garner ...... 91 People v. Simpson ...... 69 Traders & Gen. Ins. Co. v. Russell ...... 5 People v. Siu ...... 41 U.S. v. DiFrancesco ...... 24 People v. Skinner ...... 37 U.S. v. One Assort. of Firearms ...... 25 People v. Smith ...... 18,42, 85, 100, 144 Union Ice v. Rose ...... 22 People v. Stanworth ...... 94, 110 Winters v. New York ...... 117, 118 America's 1\10st Popular Practical Police Bool{s

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