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Criminal Law I (Ventura & Santa Barbara)Prof.Kristi Peariso and Prof. Greg McMurraryFall 2016QUESTION #1Around 10 p.m. last night Derek saw a text message to his wife that was sent from his best friend Juan. There was no mistaking that the two were having an affair. Irate, Derek went to Juan’s house armed with a baseball bat and intending to threaten him with it until he got some answers. Derek had a key to Juan’s house that Juan had given him last time Juan was out of town so Derek could water his plants. Derek used this key to unlock Juan’s front door. Derek threw open the door and stood on Juan’s porch with the bat raised, screaming and yelling for Juan to come out. This went on about two minutes until Derek remembered that the text he had read from Juan to his wife had said the he (Juan) was still at work. Knowing Juan was not home, Derek went into the house. While in the house, Derek looked on Juan’s computer for any emails he could find between his wife and Juan. Finding nothing of significance, Derek picked up a tool bag he had let Juan borrow years ago and left. When he got home he realized that the tool bag contained an old cell phone belonging to Juan. Derek put the tool bag in his garage and threw the phone in the trash. Please discuss Derek’s culpability for burglary, assault, and larceny.Criminal Law I (Ventura & Santa Barbara)Prof.Kristi Peariso and Prof. Greg McMurraryFall 2016QUESTION #2Kurtis is a 22 year old college student who has a love for speed. One morning, at 6:45 a.m., while on his way to school to attend an early morning study session, Kurtis stopped his vehicle at a red light. While waiting for the light to turn green, Kurtis noticed that a vehicle driven by Larry pulled up along the side of him. Larry, who is also a student at the college, was also on his way to attend the study session. At this time in the morning, there were not many vehicles on this particular street. Kurtis and Larry made eye contact as they waited for the traffic light to turn. When the traffic light turned green, both Kurtis and Larry “peeled out” in their vehicles and drove up the highway towards the school at a very high rate of speed. They both exceeded the posted speed limit of 35 MPH. As they approached the street where they needed to turn, Larry drastically slowed down his vehicle because he believed that he was going too fast to make the turn. On the other hand, Kurtis regularly drives this route to school at a high rate of speed. As such, he believed that he could make the turn at a high rate of speed, and thus, he continued traveling through the turn without significantly slowing. Unfortunately, Kurtis miscalculated his vehicle’s ability to make the turn at the high rate of speed and he lost control of his vehicle. His vehicle skidded across the roadway and slammed into the bus stop situated across the street. Liz was sitting at the bus stop at the time of the accident and was fatally injured by the vehicle driven by Kurtis.In this jurisdiction, the crime of reckless driving is a misdemeanor. In addition, the crime of “street racing” is a felony.Please discuss Kurtis’ criminal liability for the death of Liz.CRIMINAL LAW IISSUE SHEET: Fall 2016QUESTION #1 (Prof. Kristi Peariso)Burglary A burglary is the tresspassory breaking and entering of a dwelling of another at night with the intent to commit a felony inside. Breaking: Breaking can be constructive (fraud, deceit or conspiracy) or actual. When Derek used the key to unlock and open the front door, his action constituted an actual breaking. Derek had a key to Juan’s house, but the key was given to him to use when Juan was on vacation and he watered the plants. Derek’s use of the key was not within the scope of his invitation, therefore it was used against the will of the occupant. A breaking did occur.Entering: An entry is completed once any part of a person’s body crosses the threshold of the dwelling. Here, Derek waiting on the porch for a couple minutes, but eventually went into Juan’s house. An entry did occur.Dwelling: A dwelling is any place a person resides and its curtilage. Juan lived in the home, therefore it was a dwelling.Of Another: Burglary is a crime against occupancy and not ownership. Here, Juan is the occupant and Derek is not. Therefore, this is the dwelling of another.At night: At common law, night was defined as one hour before sunrise and one hour after sunset. This incident took place at 10 p.m.. That is night. With the intent to commit a felony inside: Burglary is a specific intent crime and requires the specific intent to commit a felony inside at the time entry is made. When Derek left his house for Juan’s house, he grabbed a baseball bat to threaten Juan with until he got some answers. Assault: There are two types of assaults. Attempted Battery: a specific intent to batter someone, but falling short. There is no evidence that Derek intended to use the bat or attempted to batter Juan.Intentionally placing someone in apprehension of harm: A specific intent to place someone in apprehension of harm. Evidenced by the fact that Derek took the bat with him to threaten Juan until he got some answers is evidence that Derek had the specific intent to place Juan in apprehension of harm until he got some answers. Placing someone in apprehension of harm. However, Juan was not home and this type of assault requires that the person be placed in a reasonable apprehension of harm based on a reasonable person standard. Because he was not home, this element is not met. Apparent ability to do the act. Derek would have had the apparent ability to hit Juan with a bat.Since Juan was not home, Derek did not commit an assault on Juan. However, a burglary is complete once a person crosses the threshold of the house with the intent to commit the felony inside regardless of whether or not the felony is actually committed. But, the facts indicate that before Derek entered the house, he knew Juan was not home and abandoned the bat before he entered. It is clear that when Derek entered the house, he no longer had the intention to commit an assault inside. Plus, there is nothing to indicate that he intended to do anything inside other than look through Juan’s emails. The intent to commit a larceny (see below) was clearly formed after entry. Therefore, Derek is not guilty of a burglary. Larceny The tresspassory taking and carrying away of the personal property of another with the intent to permanently deprive. Larceny of the tool bag Tresspassory : Means without consent of the possessor. Derek took the bag that was in lawful possession of Jaun without Juan’s permission. It was tresspassory.Taking: Requires dominion and control. Derek took possession of the bag. There was a taking.Carrying away: Moving an object from the location that it is kept by the possessor. Here, Derek took the bag home with him. There was a carrying away.Personal property: The property must be personal, not land, service, wild animals etc., and must have some value. Clearly a tool bag can be the subject of larceny.Of another: The crime is against the lawful possessor, not the owner. Although Derek owned the bag, Juan was in lawful possession of the bag. Therefore, this element is met. Specific intent to permanently deprive: It is clear that Derek did not intend to return the tool bag after he took it. He placed the tool bag in his garage. Clearly, there was a specific intent to permanently deprive. Derek is guilty of larceny for stealing the bag. Larceny of the cell phoneWhen Derek took the tool bag, he was unaware of the cell phone. However, the taking, even though by mistake, was tresspassory. When he realized the phone was in the bag, he threw it in the trash rather than returning it. Therefore, the doctrine of continuing trespass applies. The tresspassory taking continues and once he forms the intent to permanently deprive Juan of the phone, a larceny is committed. Derek is guilty of larceny of the cell phone. CRIMINAL LAW IISSUE SHEET: Fall 2016QUESTION #2 (Prof. Greg McMurray)Kurtis’ Criminal Liability for MurderMurder is a killing with malice aforethought. Malice can be demonstrated in any one of four ways. Intent to kill (express malice)Intent to do serious bodily injury (implied malice)Depraved Heart (implied malice)Felony Murder (implied or constructive malice)In the fact pattern, there is no evidence that Kurtis intended to kill or cause serious bodily injury to Liz. Therefore, it is unlikely that a murder conviction would be construed under those grounds.A murder conviction can be found under the theory of depraved heart killing. A depraved heart killing is one in which the defendant acted SEQ CHAPTER \h \r 1showing lack of care for human life. In other words, the defendant acted with extreme indifference to human life under circumstances where there is a high probability of death or serious bodily injury. The risk needs to be at the level where a defendant should realize the degree of risk in light of the surrounding circumstances which he knows them. Additionally, the action must be under circumstances that are unjustifiable to take the risk.Here, since there were not many other vehicles on the roadway and that Kurtis had successfully driven through this route at a high rate of speed in the past, it is unlikely that the defendant will be found to have been acting with extreme indifference to human life. It does not appear that the defendant should have been aware that his actions would result in a high risk to human life.A murder conviction can also be sustained under the theory of felony murder. A defendant can be convicted for murder for any killing that occurs during the commission of a felony. There are two requirements. First, the felony needs to be inherently dangerous. Second, the killing needs to occur during the commission of the felony.Here, since “street racing” is a felony, if it is determined that Kurtis was engaged in “street racing” at the time of the killing then he could be accused of murder under the felony murder theory. “Street racing” is a felony because of the risk it poises to civilians. Therefore, it appears that is an inherently dangerous felony in the abstract regardless sof how it is applied to particular circumstances. Additionally, the killing occurred during the felony. Although Larry slowed his vehicle, there is no evidence that the race was over. In fact, Kurtis continued to travel at a high rate of speed which adds support to the fact that he was still racing at the time of the accident. Plus, he did not reach a point of safe haven. Therefore, he could be convicted of murder under this theory.In a nutshell, it is unlikely that Kurtis could be successfully prosecuted for murder under the depraved heart theory. However, if it is determined that Kurtis was involved in a “street racing” then he could be prosecuted under the felony murder theory. Additionally, Kurtis would be looking at a charge for second degree murder because “street racing” is not an enumerated felony.Kurtis’ Criminal Liability for Involuntary ManslaughterInvoluntary manslaughter can be demonstrated in three ways.Criminal negligenceCriminal recklessnessCommission of a criminal offense not amounting to a felonyHere, Kurtis had driven this route many times and was familiar with the roadway. There is no evidence that he was distracted, on his cellular telephone or otherwise not paying attention to his driving. Therefore, it is unlikely he would be prosecuted under this theory because there is no evidence that Kurtis acted with criminal negligence.Criminal recklessness is reckless behavior that does not rise to the level of depraved heart. It is acting in a reckless manner with conscious disregard for a substantial and unjustifiable risk that the harm would occur based upon the defendant’s behavior. Here, one could easily surmise that driving at a high rate of speed and taking an unsafe turn could result in an accident and create a substantial and unjustifiable risk of harm to others. Accordingly, Kurtis acted in a reckless manner by driving his vehicle too fast and taking the turn without slowing down.Criminal or misdemeanor manslaughter is a killing that occurs during the commission of a criminal act. Here, the criminal act is the reckless driving. Liz was killed as a result of this reckless driving. Therefore, Kurtis could be found guilty of involuntary manslaughter under the theory of commission of a misdemeanor or criminal act.Voluntary ManslaughterNot applicable because the killing was not intentional. ................
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