1 California Criminal Law (4th), Crimes Against the Person

Transcription

1 1 California Criminal Law (4th), Crimes Against the Person I. ASSAULT AND BATTERY A. In General. 1. Nature of Offenses. (a) [ 1] In General. (b) [ 2] Relationship Between Offenses. (c) [ 3] Classification of Offenses. (d) [ 4] Similar Offenses. (e) [ 5] Offenses Against Public Safety Providers. 2. Assault. (a) Unlawful Attempt. (1) [ 6] Intent. (2) [ 7] Proximity. (b) Present Ability. (1) [ 8] In General. (2) [ 9] Present Possibility Distinguished. (3) [ 10] Unloaded Gun. (c) [ 11] No Requirement of Identifiable Victim. (d) [ 12] No Crime of Attempted Assault. 3. Battery. (a) Force or Violence. (1) [ 13] In General. (2) [ 14] Direct or Indirect. (b) [ 15] Wilful and Unlawful. B. Misdemeanors. 1. [ 16] Simple Assault or Battery. 2. Offenses Committed by Specific Means. (a) [ 17] Discharging BB Device in Grossly Negligent Manner. (b) [ 18] Shining Bright Device at Aircraft. 3. Offenses by or Against Specific Persons. (a) [ 19] Battery on Spouse, Cohabitant, or Other Intimate. (b) [ 20] Offenses Against Public Safety Providers. (c) [ 21] Offenses Against Transportation Personnel and Passengers. (d) [ 22] Offenses by Division of Juvenile Facilities Inmate. (e) [ 23] Offenses Against Other Specified Persons. 4. Offenses Committed at Specific Places. (a) [ 24] School or Park. (b) [ 25] Hospital. 5. [ 26] Sexual Battery. C. Felony-Misdemeanors and Felonies. 1. [ 27] In General. 2. Assault With Intent To Commit Felony. (a) [ 28] In General. (b) [ 29] Attempt Distinguished. (c) Intent To Rape.

2 (1) [ 30] In General. (2) [ 31] Resistance. (3) [ 32] Voluntary Abandonment. (4) [ 33] Showing Sufficient. (5) [ 34] Showing Insufficient. 3. Assault With Force Likely To Produce Great Bodily Injury. (a) [ 35] In General. (b) [ 36] Nature of Offense. (c) [ 37] Nature of Injury. (d) [ 38] Simple Battery Distinguished. 4. [ 39] Battery With Serious Bodily Injury. 5. Assault Committed by Specific Means. (a) Assault With Deadly Weapon. (1) [ 40] In General. (2) [ 41] Nature of Offense. (3) What Intent Is Necessary. (aa) [ 42] General Intent Is Sufficient. (bb) [ 43] Negligence Is Not Sufficient. (cc) [ 44] Knowledge Is Required. (4) [ 45] What Constitutes Attempt. (5) What Constitutes Deadly Weapon. (aa) [ 46] Determination of Issue. (bb) [ 47] Illustrations. (b) Discharge of Firearm, Laser, Stun Gun, or Less Lethal Weapon. (1) [ 48] Discharge of Firearm in Grossly Negligent Manner. (2) Discharge of Firearm at Building or Vehicle. (aa) [ 49] Inhabited or Occupied Building or Vehicle. (bb) [ 50] Uninhabited Building or Unoccupied Vehicle. (3) [ 51] Discharge of Firearm From Vehicle. (4) [ 52] Discharge of Firearm or Laser at Aircraft. (5) [ 53] Assault With Stun Gun or Less Lethal Weapon. (c) Assault With Chemicals or Drugs. (1) [ 54] Caustic Chemicals or Flammable Substances. (2) [ 55] Stupefying Drugs. 6. Offenses by Specific Persons. (a) [ 56] Assault by Public Officer. (b) Assault or Battery by Convict. (1) [ 57] Assault or Battery Against Nonprisoner. (2) Assault by Life Prisoner. (aa) [ 58] In General. (bb) [ 59] Life Prisoner. (cc) [ 60] Malice. (3) [ 61] Assault by Prisoner for Less Than Life. (4) [ 62] Battery by Gassing. (5) [ 63] Confined in State Prison. 7. Offenses Against Specific Persons.

3 (a) Injury to Spouse, Cohabitant, or Fellow Parent. (1) [ 64] In General. (2) [ 65] Definitions. (3) [ 66] Punishment. (4) [ 67] Multiple Violations. (5) [ 68] Restraining Order. (b) Offenses Against Public Safety Providers. (1) [ 69] Assault on Peace Officer or Firefighter. (2) Battery on Public Safety Provider. (aa) [ 70] In General. (bb) [ 71] Injury. (3) [ 72] Assault on School Security Officer. (4) Assault or Battery on Custodial Officer. (aa) [ 73] In General. (bb) [ 74] Relationship Between Statutes. (5) Performance of Duty. (aa) [ 75] As Element of Offense. (bb) [ 76] Effect of Unlawful Arrest. (c) Offenses Against Other Specified Persons. (1) [ 77] Governmental Officers. (2) [ 78] Jurors. (3) [ 79] Transportation Personnel and Passengers. (4) [ 80] School Employees. 8. Sexual Battery. (a) [ 81] In General. (b) [ 82] Definitions. (c) [ 83] Unlawful Restraint. II. MAYHEM A. Simple Mayhem. 1. [ 84] In General. 2. [ 85] Relationship to Other Crimes. 3. [ 86] Acts Constituting Mayhem. 4. [ 87] Intent. 5. [ 88] Permanent Maiming or Disfigurement. B. Aggravated Mayhem. 1. [ 89] In General. 2. [ 90] Intent. 3. [ 91] Permanent Maiming or Disfigurement. III. TORTURE A. [ 92] In General. B. [ 93] Intent. C. [ 94] Sufficiency of Evidence. D. [ 95] Constitutionality. IV. HOMICIDE A. In General. 1. Nature and Classification.

4 (a) [ 96] Crimes Included. (b) Degrees of Criminal Homicide. (1) [ 97] In General. (2) [ 98] Jury Instructions. (c) [ 99] Causation. 2. [ 100] Determination of Death. 3. [ 101] Termination of Life Support. 4. Murder. (a) [ 102] In General. (b) Malice Aforethought. (1) [ 103] Difficulty of Definition. (2) Elements and Distinctions. (aa) [ 104] In General. (bb) [ 105] Qualifying States of Mind. (cc) [ 106] Illustrations. (3) Evidence to Negate Mental State. (aa) [ 107] In General. (bb) [ 108] Effect of Hallucination. (cc) [ 109] Restrictions on Evidence. (c) [ 110] Attempted Murder. 5. [ 111] Manslaughter. 6. Killing of Unborn Child. (a) [ 112] In General. (b) [ 113] Definition of Fetus. (c) [ 114] No Manslaughter of Fetus. 7. [ 115] Killing of Young Child by Custodian. 8. [ 116] Suicide. B. First Degree Murder. 1. [ 117] In General. 2. [ 118] Punishment. 3. Premeditation and Deliberation. (a) [ 119] Nature of Requirement. (b) [ 120] Intent Alone Is Not Sufficient. (c) [ 121] Mature Reflection Is Not Required. (d) Standards for Determining Premeditation and Deliberation. (1) [ 122] In General. (2) [ 123] Standards as Guides to Analysis. (3) [ 124] Illustrations. (e) Evidence To Negate Mental State. (1) [ 125] General Principles. (2) [ 126] No Reduction to Nonstatutory Manslaughter for Mental Disorder or Voluntary Intoxication. (3) [ 127] Burden of Proof. (f) Showing Sufficient. (1) [ 128] Earlier Decisions. (2) [ 129] Later Decisions.

5 (g) [ 130] Showing Insufficient. 4. Killing by Lying in Wait. (a) [ 131] Form of Premeditated Murder. (b) Concealment. (1) [ 132] In General. (2) [ 133] Concealment by Disguise. (3) [ 134] Concealment of Purpose. (4) [ 135] Surprise Is Not Required. (5) [ 136] Showing Insufficient. (c) [ 137] Duration of Waiting. 5. Killing by Torture. (a) Nature of Crime. (1) [ 138] Intent Required. (2) [ 139] Classification as First Degree Murder. (b) Elements. (1) [ 140] Necessary Elements. (2) [ 141] Probability of Death. (3) [ 142] Nonelements. (c) Necessary Proof. (1) [ 143] In General. (2) [ 144] Showing Sufficient. (3) [ 145] Showing Insufficient. 6. [ 146] Killing by Poison. 7. [ 147] Killing by Destructive Device or Explosive. 8. [ 148] Killing by Weapon of Mass Destruction. 9. [ 149] Killing by Armor-Piercing Ammunition. 10. [ 150] Drive-by Murder. 11. Killing in Perpetration of Felony. (a) Nature of Felony-Murder Doctrine. (1) [ 151] In General. (2) [ 152] Proof Required. (3) [ 153] Application of Doctrine. (4) [ 154] Criticism of Doctrine. (b) [ 155] Specific Intent To Commit Felony. (c) Connection Between Felony and Killing. (1) [ 156] Logical Nexus Test. (2) [ 157] Continuous Transaction Test. (3) Escape Rule. (aa) [ 158] In General. (bb) [ 159] Place of Temporary Safety. (cc) [ 160] Rule Extended to Burglary. (dd) [ 161] Rule Extended to Other Offenses. (ee) [ 162] Relationship to Continuous Transaction Test. (4) [ 163] Death Need Not Be Foreseeable. (5) [ 164] Where Connection Is Insufficient. (6) [ 165] Effect of Merger Doctrine.

6 (d) Where Victim Is Not Object of Felony. (1) [ 166] In General. (2) [ 167] Accidental Death of Coconspirator. (e) Where Killer Is Not Defendant or Accomplice. (1) [ 168] Limited Application of Felony-Murder Doctrine. (2) Liability Independent of Felony-Murder Doctrine. (aa) [ 169] Governing Principles. (bb) [ 170] Proximate Cause Analysis. (cc) [ 171] Jury Instructions. (dd) [ 172] Where Conduct of Defendant or Accomplice Provokes Resistance. (ee) [ 173] Sufficient Showing of Provocative Act. (ff) [ 174] Insufficient Showing of Provocative Act. (gg) [ 175] Where Accomplice Is Responsible for Own Death. (hh) [ 176] Liability for Death of Coconspirator. (ii) [ 177] Use of Victim as Shield. (f) [ 178] Where Defendant Joins Felonious Enterprise After Killing. (g) Illustrations. (1) [ 179] Rape. (2) [ 180] Robbery. (3) [ 181] Burglary. (4) [ 182] Mayhem. (5) [ 183] Arson. (6) [ 184] Lewd Act With Child. (7) [ 184A] (New) Sodomy. C. Second Degree Murder. 1. [ 185] In General. 2. [ 186] Punishment. 3. Intent To Kill. (a) [ 187] Insufficient Proof of Premeditation. (b) [ 188] Insufficient Provocation or Passion. 4. [ 189] Intent To Injure. 5. Killing in Perpetration of Felony. (a) [ 190] In General. (b) [ 191] Restrictions on Scope of Doctrine. (c) Felony Inherently Dangerous to Life. (1) [ 192] Nature of Requirement. (2) Felony Evaluated in the Abstract. (aa) [ 193] In General. (bb) [ 194] Statute Including Multiple Offenses. (3) [ 195] Felonies That Are Inherently Dangerous. (4) Felonies That Are Not Inherently Dangerous. (aa) [ 196] Escape. (bb) [ 197] False Imprisonment. (cc) [ 198] Unlicensed Practice of Medicine.

7 (dd) [ 199] Grand Theft From the Person. (ee) [ 200] Fleeing Police Officer. (ff) [ 201] Other Felonies. (d) Merger Doctrine. (1) [ 202] Application in Assault Cases. (2) [ 203] Application to Other Assaultive Felonies. (3) [ 204] Application to Child Abuse Cases. (4) Decisions Allowing Application of Felony-Murder Doctrine. (aa) [ 205] Narcotics. (bb) [ 206] Poisons. (e) Liability Independent of Felony-Murder Doctrine. (1) Provocative Act Murder. (aa) [ 207] Where Underlying Felony Is Provocative Act. (bb) [ 208] Where Initiating Gun Battle Is Provocative Act. (2) [ 209] Killing by Unconscious Agent. 6. Act Involving Risk of Injury or Death. (a) [ 210] Theory of Unintentional Murder. (b) Nature of Implied Malice. (1) [ 211] In General. (2) [ 212] Malice Implied From Commission of Act. (3) [ 213] Subjective Element. (4) [ 214] Disregard for Human Safety Compared. (5) [ 215] Implied Malice Resulting From Surgical Procedure. (c) [ 216] Test for Foreseeability of Consequences. (d) [ 217] Homicide by Omission. (e) [ 218] Use of Weapon Likely To Produce Death. (f) [ 219] Battery With Fists. (g) Vehicular Homicide. (1) [ 220] In General. (2) [ 221] Relationship to Vehicular Manslaughter. (3) [ 222] Evidence of Voluntary Intoxication. (4) [ 223] Illustrations: Showing Sufficient. D. Voluntary Manslaughter. 1. Nature of Crime. (a) [ 224] Definition and Elements. (b) [ 225] Killing in Commission of Dangerous Felony Without Malice or Intent. 2. Distinctions. (a) Murder and Voluntary Manslaughter. (1) [ 226] Absence of Malice. (2) [ 227] Burden Where Murder Is Not Charged. (3) [ 228] Killing at Request of Victim. (4) [ 229] Diminished Capacity. (b) [ 230] Voluntary Manslaughter and Excusable Homicide. 3. Provocation.

8 (a) [ 231] Nature of Requirement. (b) [ 232] Intent To Kill Is Not Required. (c) Nature of Provocation. (1) [ 233] In General. (2) [ 234] Acts Constituting Provocation. (3) [ 235] Acts Rarely Constituting Provocation. (4) [ 236] Words or Gestures. (d) [ 237] Insufficient Evidence of Provocation. 4. Heat of Passion. (a) [ 238] Nature of Requirement. (b) [ 239] When Passion Has Cooled. (c) [ 240] Illustrations: Evidence Sufficient. (d) [ 241] Illustrations: Evidence Not Sufficient. 5. Imperfect Self-Defense. (a) [ 242] Nature of Defense. (b) [ 243] Intent To Kill Is Not Required. (c) [ 244] Sufficiency of Evidence. 6. [ 245] Imperfect Defense of Others. E. Involuntary Manslaughter. 1. [ 246] In General. 2. Killing in Commission of Misdemeanor. (a) [ 247] In General. (b) [ 248] Limitations. (c) [ 249] Necessity of Criminal Intent. (d) [ 250] Illustrations. 3. [ 251] Killing in Commission of Nondangerous Felony. 4. Negligent Killing in Nonvehicle Cases. (a) Necessity of Criminal Negligence. (1) [ 252] Lack of Due Caution and Circumspection. (2) [ 253] Ordinary Negligence Test Rejected. (b) Negligent Handling of Firearms. (1) [ 254] In General. (2) [ 255] Giving Gun to Another. (3) [ 256] Illustrations. (c) [ 257] Other Negligent Acts. (d) Negligent Omissions. (1) [ 258] In General. (2) [ 259] Conviction Affirmed. (3) [ 260] Conviction Reversed. F. Vehicular Homicide. 1. [ 261] Former Law of Negligent Homicide. 2. Vehicular Manslaughter. (a) [ 262] In General. (b) [ 263] Unlawful Act or Unlawful Manner. (c) [ 264] Liability of Passenger. (d) [ 265] Evidence of Unconsciousness.

9 (e) [ 266] Evidence of Gross Negligence. 3. [ 267] Vehicular Manslaughter While Intoxicated. 4. Gross Vehicular Manslaughter While Intoxicated. (a) [ 268] In General. (b) [ 269] Punishment. (c) [ 270] Gross Negligence. (d) [ 271] Jury Instructions. 5. [ 272] Causation and Contributory Negligence. V. FALSE IMPRISONMENT A. In General. 1. [ 273] Nature of Crime. 2. [ 274] Similar Offenses. B. Felony False Imprisonment. 1. [ 275] In General. 2. [ 276] Means Employed. 3. [ 277] False Imprisonment of Hostage. 4. [ 278] Human Trafficking. C. Confinement. 1. [ 279] In General. 2. [ 280] Unlawfulness of Confinement. VI. KIDNAPING A. Simple Kidnaping. 1. [ 281] Nature of Crime. 2. [ 282] Punishment. 3. Asportation. (a) [ 283] Nature of Requirement. (b) [ 284] Movement Incidental to Another Crime. (c) [ 285] Type of Movement Required. 4. [ 286] Intent. 5. Force or Fear. (a) [ 287] Element of Offense. (b) [ 288] Application to Infant or Young Child. (c) [ 289] Application to Incapacitated Person. (d) [ 290] Time of Restraint. 6. [ 291] Other Kinds of Simple Kidnaping and Related Offenses. B. Aggravated Kidnaping. 1. [ 292] In General. 2. Kidnaping for Robbery. (a) [ 293] In General. (b) Specific Intent. (1) [ 294] In General. (2) [ 295] Escape. (c) Asportation. (1) [ 296] Former Law. (2) Nonincidental Movement Increasing Risk of Harm. (aa) [ 297] In General.

10 (bb) [ 298] Nature of Requirement. (3) [ 299] Illustrations: Evidence Sufficient. (4) [ 300] Illustrations: Evidence Not Sufficient. 3. Kidnaping for Extortion or Ransom. (a) In General. (1) [ 301] Nature of Crime and Punishment. (2) [ 302] Nature of Extortion. (b) Bodily Harm. (1) [ 303] Serious Harm Present. (2) [ 304] Serious Harm Not Present. (3) [ 305] Causation. (4) [ 306] Intent. (c) [ 307] Substantial Likelihood of Death. (d) [ 308] Detention Without Asportation. (e) [ 309] Distinction: Restraint Incidental to Robbery. 4. Kidnaping To Commit Sex Offense. (a) [ 310] In General. (b) Nonincidental Movement Increasing Risk of Harm. (1) [ 311] Applicable Test. (2) [ 312] Application of Test. (3) [ 313] Illustrations. 5. Kidnaping to Facilitate Carjacking. (a) [ 314] In General. (b) [ 315] Nonincidental Movement Increasing Risk of Harm. C. [ 316] Attempted Kidnaping. D. [ 317] Representations To Obtain Ransom. VII. CHILD ABDUCTION A. In General. 1. [ 318] Nature of Crimes. 2. [ 319] Proof of Intent. 3. [ 320] Bases for Jurisdiction. 4. [ 321] Protective Custody. 5. [ 322] Bail. B. Abduction by Person Without Right of Custody. 1. [ 323] Statutory Provision. 2. Taking by Parent. (a) [ 324] In General. (b) [ 325] Taking by Abandoning Parent. 3. Taking by Unwed Father. (a) [ 326] Taking by Presumed Natural Father. (b) [ 327] Taking by Alleged Natural Father. C. Deprivation of Custody or Visitation. 1. [ 328] Statutory Provision. 2. [ 329] Physical Custody or Visitation Right Is Required. 3. [ 330] Exception: Belief That Child Will Suffer Injury or Harm. D. [ 331] Factors in Aggravation and Mitigation.

11 E. [ 332] Removal or Concealment of Child During Adoption Proceeding. VIII. STALKING A. [ 333] In General. B. [ 334] Definitions. C. [ 335] Punishment. D. [ 336] Protective Order. E. Release or Escape. 1. [ 337] Notice of Release or Escape. 2. [ 338] Release on Bail.