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Criminal Law
University of California, Hastings School of Law
Diamond, John L.

Criminal Law – Fall 2014 – Prof. John Diamond

1. The Act Requirement_

a. All crimes require a voluntary act. [Sleepwalking] is one of the few medical conditions that can negate the voluntary aspect of the act requirement. If D is [sleepwalking], his acts (even those criminal) are no longer a manifestation of his own will. There are no facts to suggest that he was sleepwalking at the time, however, if he was this would exonerate him from the liabilities above. However, if this is a known condition, and D has failed to take precautions, this argument will fail.

b. Definition: A voluntary bodily movement

i. Aka. A manifestation of will

c. Act or omission required – Every criminal conviction requires a voluntary act or an omission of an act when there is a legal duty to act.

d. Case: Jones v. US [ Crime of ommission ]

i. Facts: D charged with involuntary manslaughter for mistreatment of a child she was not the biological parent of.

ii. Relevance: Duty? If so, omission? Four situations where failure to act constitutes a breach of legal duty: statute, status relationship, contractual obligation, voluntary assumption of care. Allowing the parent to leave child under D’s care suggests D assumed a duty.

e. MPC

i. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

ii. Not voluntary acts: reflex/convulsions, bodily movement during, conduct during hypnosis, a bodily movement otherwise not a product of the effort or determination of the actor, unconsciousness or sleep (See The Queen v. Park: acquitted of 2nd degree murder b/c he was sleepwalking)

1. Exception: Failure to take precaution on known condition

iii. Possession is an act if the possessor

1. Knowledge – Knowingly procured or received the thing; -or-

2. Awareness – Was aware of his control for a sufficient period to have been able to terminate possession.

f. Omission

i. Omission to act constitutes a crime when and only if there is a duty to act

ii. Legal duty can be created by:

1. Statutes

a. Vermont criminalizes the failure to act when there is no peril, no interference with important duties to give reasonable assistance

b. Failure to Report when a person has reasonable cause to suspect another has committed a violent or sexual assault on someone under 12yo is a crime.

c. Concealing Crime – Taking affirmative acts to conceal a crime is illegal

2. Special Relationships

a. Includes parent and child

i. Notes Case: Walden – Held: A Parent who watches friend beat their baby is aiding and abetting the assault, and constitutes a crime of omission.

ii. Notes Case: Henson – parents have a duty to provide their children medical care

b. May not include siblings

3. Duty to Control 3rd Parties

a. Tarasoff, children, employees

4. Contractual Obligations

5. Voluntary Assumption of Aid

6. Landowners

7. Defendant’s Creation of the peril

8. MPC – Duty under civil law ought to suffice to make duty to act arise under criminal law

2. Theft_

a. Larceny_

i. Larceny is the wrongful taking and carrying away (MPC eliminates the asportation requirement) of the personal property (CL: movable goods, CA/Modern: ideas/things of value) of another (CL: didn’t include spouses/partners, MPC/modern: does include them) with the intent to deprive permanently. In CA, if the [book] is over $400 it will be Grand Larceny (a felony).

ii. The taking was trespassry bc the [umbrella] was not [X’s] and she did not have permission to take it. The [umbrella] is movable physical property and is thus tangible – property of this type has always been included in the CL definition of personal property.

iii. [If X has entered anywhere, get them on burglary as well]

iv. Elements:

1. A trespassory

2. taking

3. and carrying away

4. of the personal property

5. of another

6. with intent to deprive

7. permanently.

v. Element: Trespassory

1. Wrongful

a. Might have consent – A taking can be wrongful even though the owner consented to give D possession, but not title. [See larceny by trick] [If title is given see false pretenses]

vi. Element: Taking

1. Definition: Taking is the severance of the goods from the possession of the owner, even if only for an instant.

a. Requires control and possession of item

i. Hypo: Guy takes a coat from a manikin and runs for it. Coat chained, not larceny.

1. Meaning – This shows that asportation does not always equal a taking.

vii. Element: And carrying away

1. CL

a. Asportation

i. Moving an air conditioner only a few inches is sufficient Asportation

ii. Pie v. Donut distinction – rotate both – if some part stays still, then no asportation. So no asportation when rotating a pie, but yes asportation with donut.

2. MPC

a. The strict asportation requirements of the CL have been eliminated in the MPC. You can even now take something by say building a fence around it.

b. No Asportation

i. MPC eliminates asportation requirement!

ii. So you can take something without moving it, like building a fence around it.

viii. Element: of the personal property


a. CL – Traditional View

i. Limited Personal Property (also limited by asportation requirement)

ii. Property is:

1. Not plants – Not vegetables attached to the land

i. Exception: If veggies are no longer attached to the land, then act is not contiguous and it can be larceny.

2. Not intangible things

3. Not dogs or cats, but domesticated livestock included.

4. Not use of property or services

i. Case: Lund v. Commonwealth

ii. Meaning: Computer use time cannot constitute property.

b. MODERN – Expansion of property

i. Wider Definition

ii. Property is:

1. Examples: Dogs and cats, services, energy, water, power, stock certificates, bonds

i. Not about tangibility, about whether it’s capable of being appropriated

2. Examples: Unauthorized access to computer systems (Cal. Pen. Code)

3. Examples: Data

i. Exception employee in scope of employment where less than 100$

1. Policy: prevents speech, prevents employee mobility

4. Example: Trade Secrets

c. MPC

i. Anything

embezzlement as well]

2. Negates intent – If you just are borrowing the item, and intend to return it, it’s not common law larceny

3. No Larceny – A person who takes property intending to borrow it and then return it within a reasonable time does not have specific intent to deprive permanently

4. Destruction – If you intend to borrow something and an unforeseen event destroys the item, one lacks mens rea for larceny.

5. MPC – Requires the deprivation be permanent, so borrowing is not convictable.

6. Exception: MODERN statutes may criminalize borrowing in certain cases

i. However, there are modern statutes that criminalize borrowing in certain cases – such as joy riding cars or borrowing shopping carts. If an [umbrella] happens to fall under one of these statutes, which it likely does not, then [X] may be guilty.

ii. Examples: Joy riding, shopping carts

iv. Intent to Pay for It [at the time of acquisition]

1. Larceny of Fungible Goods – substitution is allowed if items are for sale and owner would have consented.

2. Reasoning:

i. If one intends to pay for something that they take and…

ii. ….carry away they lack requisite intent for larceny.

3. Fungible Requirement – Goods that merchants have offered for sale is gold standard.

4. BYOB Hypo: At BYOB party, Q ran out of beers, opens frig and takes a beer, but leaves a 2$. Some courts would find that petty larceny, others would say no intent to deprive permanently.

5. MPC – Intent to Pay

i. Requirements:

1. Took property exposed for sale

2. Intending to purchase the and pay for it promptly

3. -or – reasonably believing the owner, if present would have consented

2. MPC

a. Took the item with the intent [purpose to or knowingly] to deprive permanently

i. Negate by

1. Mistake

i. So reckless, negligent, or reasonable mistake excuses

2. Intent to Pay

i. Requirements:

1. Took property exposed for sale

2. Intending to purchase the and pay for it promptly

3. -or – reasonably believing the owner, if present would have consented

3. Continuous Taking Fiction

a. If one forms the requisite intent after acquisition, mens rea element is fulfilled.

i. Keeping borrowed property – If you want to borrow something, but then decided to deprive the owner permanently – larceny.

ii. The moment the intent requirement is met, it is enough for larceny.

1. So if you commit larceny, but then feel guilty and return it – larceny.

i. Once larceny, had been committed you cannot change your mind.