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

Crimes require: 1) a voluntary act (or omission); 2) mens rea; and 3) results

Voluntary Acts and Omissions
–          All crimes require a voluntary act or omission
–          MPC
o        Not considered voluntary acts
§         Reflex or convulsion
§         A bodily movement during sleep or unconsciousness
§         Conduct during hypnosis
§         Bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual
o        Omission can be element of crime when:
§         The stte defining the offense expressly states that failure to act is a crime; or
§         The ∆ has a duty to act imposed by civil law
–          Common law: Criminal liability may be predicated on an omission if the ∆ had a legal duty based on:
o        Stte
o        Special relationships
o        Contractual obligations
o        Voluntary assumption of care
o        ∆’s status as a landowner
o        A duty to control third parties, such as children or employees
o        ∆’s creation of the peril

–          Larceny requires: 1) a trespassory 2) taking 3) and carrying away 4) of the personal property 5) of another person 6) with the intent to deprive the owner of the property permanently
o        Crime protects possession; not ownership
–          Trespassory (wrongful)
o        Three interpretations of what interest criminalizing larceny protects
§         Critical legal studies: law is a way for the ruling class to oppress the underclass and maintain inequality of the distribution of wealth
·         Taking from the rich is larceny, but exploiting the poor through low wages is capitalism
·         Furthermore, criminal law focuses too much on individual and doesn’t take into account social circumstances
§         Economic: criminal law is designed to keep the underclass in check since they cannot be sued
§         Moral: trying to reaffirm the differences between right and wrong; also trying to determine when society can hold individuals responsible for their actions and assign guilt (and punishment)
–          Taking
o        Severance of goods from possession of the owner
o        Accused must have the property in his control, even for a second
§         Ex: A takes radio on a chain from a store à no taking since he never had control
o        Continuous takingà the act of taking continues so long as ∆ is in possession of the property
§         Does not apply to lost/mislaid property or mistaken delivery à there, intent has to occur at time of taking
–          Carrying away (asportation)
o        Asportation requires only some movement of the property, but every part of the property must be moved
o        MPC proposes abolishing asportation
§         But is asportation an added safeguard in a world w/o mind readers?
–          Personal property
o        Restricted to tangible, moveable items
§         Ex: animals, electricity, gas (split), computer time, and services
o        Information
§         Broad definition may inhibit journalistic rigor; narrow definition may exclude certain kinds of information society seeks to protect
–          Of another person
o        Even the owner of a piece of property commits larceny if he or she takes that property from someone who has a superior right of possession (ex: property used as security for a debt)
§         The taking of stolen property or contraband falls w/in the scope of larceny (again, protecting possession; not ownership)
o        Traditionally, one could not steal from a spouse; MPC rejects this rule
–          With the intent to deprive the owner of the property permanently (specific intent)
o        Interpretations of “permanently”
§         For the property’s useful life (ex: taking a hammer until it breaks)
§         Exposing the property to risk such that its return could be impossible (ex: taking a cat in SF and leaving it in NY)
§         Placing an unacceptable condition upon the property’s return (although rsble conditions do not make on guilty of larceny)
o        Claim of right: a person who takes property to collect on a debt, or who for some other reason feels he or she has a right to the property, has no intent to permanently deprive another person of his property and therefore has not committed larceny
o        Borrowing: if one only intends to borrow something when taking and returns it in a rsble amount of time, he does not have the specific intent for larceny
o        Intention to pay for taken goods: a person who gives or intends to give an equal or more valuable substitute for a fungible good does not have the intent to permanently deprive another of property
§         However, a minority of cts distinguish between taking property w/ the intent to return and taking property w/ the intent to make restitution or payment (the latter not precluding a theft conviction)
§         MPC: intent to pay only a defense where ∆ took property exposed for sale, intending to purchase and pay for it promptly, or rsbly believing that the owner, if present, would have consented
–          Extensions of larceny
o        Lost or mislaid property
§         Common law: could be convicted of larceny for taking lost property if π proved:
·         That, at the time the ∆ took the property, he had a clue suggesting that the owner could be rsbly found; and
·         That the ∆ had the intent to permanently deprive the owner of the property at the time it was taken
§         MPC: One is guilty of theft of lost or mislaid property if he fails to take rsble measures to restore the property to a person entitled to have it
·         Is this an expansion of what is considered criminal behavior?
o        Mistaken Delivery
§         Common law: Π must prove 6 elements of larceny plus:
·         Knowledge by ∆ at the time of taking that the victim made a mistake as to the nature or the amount of the property or to whom it was delivered; and
·         That the ∆ had the intent to permanently deprive the owner of the property at the time it was taken
§         MPC: A crime can be committed even if ∆ formed the intent to deprive at some point after the time of the mistaken delivery
§         Container ruleà the delivery of a “container” constitutes the delivery of its contents, thereby precluding a larceny conviction if the recipient later finds some mistakenly delivered contents inside
§         Mistakes as to difference in valueà the crime of larceny does not occur when both parties understand what items are the subject of their transaction but one of them makes a mistake about the value of those items
o        Larceny by Trick
§         Crime occurs when a ∆ uses deceptive means to obtain possession, but not title or ownership, of another’s personal property
·         Exception: if the owner intends to part w/ both title and possession of the property, it’s not larceny by trick
§         Ex: A says to B, “Your luggage is so beautiful. If you give it to me, I will pay you for it next week.” B turns over luggage, but A fails to pay. A has not committed larceny b/c B gave A title to the luggage
–          Embezzlement requires: 1) the fraudulent 2) appropriation 3) of property 4) of another 5) by one who has been entrusted w/ its possession
–          Fraudulent
o        In some Js means “intent to deprive;” in others “intent to deprive permanently”
o        Requires proof that ∆ knew the property wasn’t his à a claim of right is a defense to embezzlement
o        Unlike larceny, no defense for ∆s who substituted equivalent property for the embezzled property
–          Appropriation
o        The use of property in a manner inconsistent w/ what the owner has authorized
–          By one who has been entrusted w/ its possession
o        Entrusted: refers to special legal relationship that must exist between ∆ and the goods he appropriated
–          Difference between larceny and embezzlement
o        ∆ must seriously interfere w/ the property
o        the original taking must NOT be trespassory à crime is against ownership and not possession
False Pretenses
–          False pretenses requires: 1) a misrepresentation

extortion sttes
§         Threats to injure the victim;
§         Threats to accuse the victim of a crime;
§         Threats to reveal something that would disgrace the victim;
§         Threats to publish defamatory matter about the victim, or to injure his or her business reputation, or to slight his or her personal character;
§         Threats to injure the victim’s family or relatives; and
§         Threats to injure anyone.
o        Threats in CA
§         To do unlawful injury to person or property of individual or third person; or
§         To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or
§         To expose, or to impute to him or them any deformity, disgrace or crime; or
§         To expose any secret affecting him or them.
o        MPC: criticizes broad extortion provisions b/c they appear to embrace breach of K and similar conduct for which a civil remedy is available
–          Extortion v. robbery
o        The primary distinction btwn extortion and robbery is that in robbery the taking must be w/o the consent of the party robbed, while in extortion the taking is w/ consent
–          Claim of right
o        Most states do not recognize a claim of right as a defense to extortion b/c the law does not contemplate the use of criminal process as a means of collecting a debt
o        Some states recognize claim of right under certain circumstances
§         If the property or action that is the subject of the extortionate threat is owed to the ∆ as a right “in fact” (MISS)
§         If ∆’s conduct was rsble (OH)
o        MPC: limited claim-of-right defense to extortion
§         The defense is limited to cases where ∆ threatened
·         To accuse another person of a crime,
·         To divulge a secret, or
·         To take or withhold action as an official, or cause an official to take or withhold action
–          Blackmail
o        Why can’t you threaten to do what you have a legal right to do?
§         Extortion involves a threat to do something illicit
o        But, what about moral wrongs of blackmail? Does it encourage deception and other wrongs?
o        Economic: blackmail is a commercial trade (nothing wrong)
§         But, blackmail is punished b/c gov’t wants to keep monopoly of punishment in the public sphere
–          Political extortion (extortion under color of official right)
o        Money or property wrongfully obtained under color of office
o        Difference between collecting money and extortion
§         Quid pro quo: money has to be given in return for the performance of or abstention from an official act; otherwise any campaign contribution might constitute a violation
o        Does this bleed into bribery?
–          Bribery requires: offering or giving or receiving or asking for property (or something else of value) to wrongfully influence an official action
o        Specific quid pro quo built in
–          Bribery is committed once one offers or solicits a bribe
o        Irrelevant whether or not the bribe was ever paid
–          Crime is committed even if the public official was legally bound to perform the act or would’ve done so even w/o the inducement of a bribe
–          Bribes v. gratuities