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Criminal Law
University of California, Hastings School of Law
Rappaport, Aaron

Criminal Law – Fall 2013 – Rappaport


3. D’s Challenges on Appeal [2]:

(a) Challenge facts

(b) Legal challenge (interpretation of words in statute) ex: “deliver” in Johnson drug case

(A) Major Considerations [7]:

(1) Look to case law (in jurisdiction you’re in)/could be case of 1st impression

(2) Text itself clear?

(3) Look to other statutes

(4) Look at legislative history (Who passed bill? Intentions? Look at committee reports on legislation)

(5) Look to rules of statutory construction

i. Ex – Rule of Lenity à if statute ambiguous, interpret in D’s favor. Done after exhausting all other means of interpretation

(6) Look to other courts/commentators à not binding, but can be persuasive

(7) Look to public policy issues

i. Fairness, justice (social consequences à prosecuting more black ppl)

C. Constraints on Punishment

1. Determinate vs. Indeterminate sentencing

a. Indeterminate à up until 1970s

i. Sentencing [3] à unguided, discretionary and indeterminate


(A) Inequality à those acquitted are not minorities

(B) Disparity à same crimes, different sentences

(C) Leniency à too many offenders let out early

b. Determinate à From 1980s forward

i. Sentencing à restriction on judicial discretion

ii. Legislature/sentencing commission sets incarcerative penalty range for defined offense

iii. Why shift [3]?

(A) Disillusionment w/rehab model

(B) Public pressure during high crime periods for longer sentences

(C) Reduce judicial discretion b/c discriminatory

2. Statutory Constraints

a. Mandatory Minimum Statutes

i. Types:

(A) Offense-Related Laws

(1) Based on a specific kind of offense

Ex – drug crimes à possession+distribution of controlled substances


(a) Aggravating or mitigating factors NOT taken into account

Ex – Drug mule vs. drug lord = same sentence

(B) Recidivism Laws (Utilitarian in nature, but retributively disproportionate sentencing)

(1) Based on offenders w/significant prior history

Ex – CA’s 3 Strikes Law

i. D has 2 prior “serious” felony convictions

ii. D’s current offense is “serious” felony like BARRK [Prop 36 amendment]

iii. D gets sentence of 25 yrs to life


(a) Overbreadth à any felony (non-serious +nonviolent) triggers 3rd strike

Ex – 2/3 offenders who trigger 3rd strike commit non-serious felonies

(b) Illogical in way applied à Burglary + Burglary + Theft = 25 to life BUT Burglary + Theft + Burglary = NOT 25 to life

b. Sentencing Guidelines

i. Federal Sentencing Guidelines

(A) Sentencing Commission à promulgated FSG

(1) Congress established Sentencing Reform Act (SRA) in 1984

(2) Goal: Legal regularity

(3) How does it work?

(a) 2 axes: Offense level/history of crime, then where D falls on grid determines sentence

(B) Sentence Determination

(1) 3 Factors:

(a) Seriousness of current offense

(b) Criminal history

(c) Relevant conduct à preponderance of evidence in sentencing trial by judge

i. Crim behavior or conduct that hasn’t been proven at trial but that’s “reasonably certain” can be taken into account during sentencing


(a) Relevant conduct evades trial (BRD) protection à due process + jury trial

(b) Significant increase in punishment in society

(c) What to do if sentences too severe?

i. Statutory reforms

ii. Constitutional challenge

3. Constitutional Constraints

*a. 8th AMENDMENT – Cruel and Unusual Punishment

i. Proportionality

(A) Capital Punishment

(1) NOT cruel and unusual

(B) Non-Capital Punishment à Narrow Proportionality Principle

(1) 8th Amend only forbids extreme sentences that are grossly disproportionate to crime

(2) Steps:

(a) Whether statute enacted with (any) purpose of punishment

i. Deference to legislature

(b) Whether punishment grossly disproportionate to that purpose

ii. Case Law

(A) Ewing v. California (2003)

(1) CA 3 Strikes Law à constitutional

(2) Gravity of Offense à current felony + history of felony recidivism

(a) 3rd strike à shoplifted 3 golf clubs = grand theft = “serious felony”

(3) Retribution à Grossly disproportionate à culpability must be for current offense

(4) Utilitarian à Proportionate à recidivist (committed multiple crimes)

(B) Rummell v. Estelle (1980) à constitutional

(1) D gets LWPP

(a) Previous and current offenses à 3 fraud offenses totaling $230

(2) Proportionate b/c possibility of parole

(3) Test for proportionality from this case:

(a) Gravity of offense compared to severity of penalty

(b) Penalty within state for similar offenses (intra-jurisdictional analysis)

(c) Penalties in other jurisdictions for similar offenses (inter-juris analysis)

(C) Solem v. Helm (1983) àNOT constitutional

(1) D gets LWOPP

(a) Previous offense à 6 felonies, none were crime against person

(b) Current offense à Bad check for $100

(2) Grossly disproportionate

(a) No parole

(b) Gravity of offense

i. Relative harmlessness of crime issuing bad check

ii. Lack of violent criminal record

(c) Severe compared to criminals in and out of state

(D) Harmelin v. Michigan (1991) à constitutional

(1) D gets LWOPP

(a) Current offense à possession of 672g cocaine

(2) Proportionate

(a) Gravity of offense à serious

(E) Takeaway

Jeopardy / Ex-Post Facto

i. Double Jeopardy

(A) D can’t be punished twice for same crime

ii. Civil Commitment vs. Criminal Punishment

(A) Factors:

(1) Legislative Intent (statutory construction à putting law in civil code)

(a) Not dispositive

(2) Purpose/Function of “Punishment”

(a) Uniquely Criminal

i. Deterrence

ii. Retribution


(a) D loses liberty b/c of science that’s not proven yet to predict future dangerousness accurately

(b) Blurs line b/t criminal commitment (loss of liberty for PAST wrongful conduct) and civil commitment (loss of liberty based on predicted future dangerousness conduct)

(B) Ex – Kansas v. Hendricks

(1) NOT deterrence à Sexual predators don’t have self-control

(a) Not deterred by threat of confinement

(2) NOT retribution à Not assigning blame to D

(a) Only using prior conduct to support finding of future dangerousness


A. Actus Reus

1. Voluntary Act (or omission if there’s a duty to act)

2. Social harm

3. Link between the two (voluntary act must RESULT in social harm)

B. Mens Rea

1. Culpable mental state

C. Concurrence of Act and Mental State

1. Actus reus and mens rea must occur at same time

D. Time Framing

1. Result-oriented crime. Moving back to an earlier act (People v. Decina) (go back far enough to find voluntariness à operating vehicle). Where actus reus and mens rea occur at same time.


A. General Rule

(1) All crimes must have a prohibited act:

(a) Act isn’t a pipe dream, but rather D is taking STEPS towards doing something culpable

(b) Create clear limits for when government can prosecute people

(c) Want to put citizens on notice that area is where you can be prosecuted

i. Commission by Omission

(a) Distinction between act/omission à Law should prevent ppl from actively causing harm, but shouldn’t compel people to benefit others

(b) Duty to act + Failure to act à treated as Voluntary act

ii. Conduct crime à No harmful result required for guilty offense

iii. Result crime à A result brought about by a conduct (death brought about by explosive)