final Flashcards
defining willful, deliberate and premeditated
(the intent theory of 1st degree)
a) Intent to kill.
b) D carefully weighed the considerations for and
against his choice and, knowing the consequences,
decided to kill.
c) D acted with premeditation if he decided to kill
before completing the act that caused death.
d) The length of time D spends considering whether to
kill does not alone determine whether it was
deliberate & premeditated.
e) The amount of time required for deliberation and
premeditation may vary depending on the person
and circumstances.
f) Decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and
premeditated.
g) On the other hand, a cold, calculated decision to kill
can be reached quickly. The test is the extent of the
reflection, not the length of time
D. Involuntary Manslaughter: unintended deaths occurring during the commission of non-homicide offenses.
- Criminal Negligence Manslaughter: usually vehicular. Death caused by D who is aware that her acts create a substantial and unjustifiable risk of death or serious bodily
injury but acts anyway. - CA: D committed involuntary manslaughter if–
a) D committed a crime;
b) D committed the crime with ordinary negligence;
AND
c) D’s acts caused the death of another person.
d) Criminal negligence definition:
(1) D acts in a reckless way that creates a high
risk of death or great bodily injury; AND
(2) A reasonable person would have known that
acting in that way would create such a risk
C. Voluntary Manslaughter (think PROVOCATION): heat of passion.
Ex: man comes home early & catches wife in bed.
- Suddenly & intentionally killing another person in the heat of anger following adequate provocation—elements include murder actus reus, mens rea, causation, and death.
- CA. The D killed b/c of a sudden quarrel or in the heat of
passion. 4 ELEMENTS:
a) D committed an act that caused the V’s death; AND
b) Subjective provocation: D was provoked, and as a result of the provocation, the D acted rashly and under the influence of intense emotion that
obscured his reasoning or judgment; AND
c) Objective provocation: the provocation would
have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
If enough time passed between the provocation and the killing for a person of average disposition to “cool off” and regain his clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.
- Causation: P has to prove that the provocation caused
the passion & the killing.
a) Words as provocation. CA “Last-straw” rule
(also called “long smoldering” or “slow burn”
rule)
(1) Provocation as “smoldering resentment or
pent-up rage resulting from earlier insults or
humiliating events culminating in a triggering
event that, by itself, might be insufficient to
provoke the deadly act
2nd Degree Murder: any murder that does not count as 1st degree including intentional, but NOT premeditated or deliberate murders. 2nd degree includes intent to inflict serious
bodily injury murders, & depraved heart murders.
- CA 2nd Degree Murder With Malice Aforethought. P must prove 2 elements beyond a reasonable doubt:
a) D committed an act that caused the V’s death.
(1) Causation: more than one cause of death ok.
(a) D’s act must be a substantial factor in
causing the death: more than a trivial or
remote factor. BUT, does not need to be
the only factor that causes the death.
b) D acted with either of 2 kinds of malice
aforethought.
(1) Express: D unlawfully intended to kill;
OR
(2) Implied. 4 elements of implied malice
aforethought required:
(a) D intentionally committed an act;
(b) The natural and probable
consequences of the act were
dangerous to human life;
(c) At the time he acted, he knew his act
was dangerous to human life; AND
(d) He deliberately acted with conscious
disregard for life.
(3) The following defines NPC & are NOT
elements:
(a) if the death is the direct NPC of the act
and the death would not have happened
without the act.
(b) NPC: where a reasonable person would
know is likely to happen if nothing
unusual intervenes.
(c) No deliberation or the passage of any
particular period of time required.
1st degree elements
- D committed an act that caused the V’s death;
- Intent – 2 theories:
a) The murder was willful, deliberate, and
premeditated; OR
b) The murder was committed by special
circumstance:
(1) For financial gain
(2) Multiple murder convictions
(3) Murder of a cop, prosecutor, judge,
government official, witness, or juror.
(4) Notice that def atty excluded!!!
(5) Bobby Black – “Christine”
(6) Lying in wait
(7) V’s race, religion, or nationality
(8) In the commission of serious felony
(9) Torture
(10) Drive-by
(11) By a street gang membe
what is the def of person or human being ?
- fetus being victim
- 7-8 weeks classify
rape
- Considered 2nd only to PC 187 (homicide) in seriousness
- Serious even if no physical injury
- Different from other felonies:
- With rape, the act of having sex is not only legal but healthy &
wanted. - 1 huge, critical problem w/sexual assaults: it’s sometimes
difficult to differentiate between flirting/seduction v. a sexual
assault.
elements for doctor assisted
A) have to be an adult, terminal ill, make request (advance)
B) doctor had to determine illness
- voluntary /of sound and mind
- you are a cal resident
- doc requests under law (writing)
- have to administer drug yourself
2 kinds of homicide
homicide
noncriminal : justified (self/insanity) excusable
kinds of euthanasia
passive : person fails to take extraordinary lvls for other to stay alive
active : person causes deprive active for other to die
voluntary : victim makes request
involuntary
- benefit: family tells them it is okay
- malevolent: person doesn’t care/or regard for law
common law rape 2 types
- intentional
- forced
- nonconsensual
- heterosexual
- vag penetration
3 additional:
1. DA had to show victims Chasity
2. victim immediately reported it
3. victim had to have an other party (bystander was not enough)
sodomy b/w 2 men
elements of rape
Rape Actus Reus: The Force &
Resistance Rule
- Utmost resistance standard
- Reasonable resistance standard
- Two definitions of “force”
- Extrinsic force
- Intrinsic force
- Does “No” Always Mean “No”?
CA Assault With a Firearm, Deadly Weapon, or
Force Likely to Produce Great Bodily Injury
- The force used was likely to produce
great bodily injury; - D did that act willfully;
- When D acted, he/she was aware of
facts that would lead a reasonable person
to realize that his/her act by its nature
would directly and probably result in the
application of force to someone;
[AND] - When D acted, he/she had the present
ability to apply force with a firearm OR
likely to produce great bodily injury/with a
deadly weapon other than a firearm.
battery causing serious bodily injury
what must prosecutor prove?
- D willfully [and unlawfully] touched V in a
harmful or offensive manner; [AND] - V suffered serious bodily injury as a result of
the force used.
CA is a general intent crime state: D has to
intend to touch, not intend to harm.
sex offenses over clothes is?
if over clothes: misdemeanor
the threat of force in sex offense
- Actual force isn’t required
- Threat of force requires two kinds of fear:
- Subjective fear
- Objective fear
- Courts can consider numerous variables to determine if victims’ fear was reasonable
negated consent
- V communicated through words/acts that she no longer consents;
- A reasonable person would have understood that her words/acts expressed
her lack of consent; AND - D forcibly continued the act of intercourse despite her objection.
* Evidence that D and the V dated/were or previously married) is alone not
enough to constitute consent
what does the prosector have to prove for rape?
- D had sexual intercourse with a womxn;
- He and the womxn were (not married/married) to each other;
- The womxn did not consent to the intercourse; AND
- D accomplished the intercourse by either:
- Force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to the woman or to someone else; - By future threats of bodily harm; OR
- By threat of official action
- Force, violence, duress, menace, or fear of immediate and unlawful
- V does not have to physically resist or fight back in order to communicate her
lack of consent. - A womxn may initially consent & then change her mind during the a
what does penetration mean?
- no matter how slight, of the vagina
or genitalia by the penis. Ejaculation is not required. - V does not have to physically resist or fight back in order to communicate her
lack of consent. - A womxn may initially consent & then change her mind during the a
