Serial Murderers: The Male Serial Killer: Profile 7-8:Theodore Robert Bundy 1973-1978

In the end, society gave Ted what he so eagerly sought throughout his life: infamy, notoriety, and the attention of millions of people. Even though the lives of 30 to 50 young women, including several teenagers and a 12-year-old girl, were sacrificed, the final price paid by Ted was never a real issue for him. Like some other serial killers, Ted Bundy found his fortune in the recognition and celebrity status he acquired through his involvement with the judicial system of the United States. Ted was born out of wedlock in Burlington, Vermont, 1946, to Louise Cowell. During the next few years, Ted and his mother lived with Louise's parents. Some relatives believed it was during this period of time that Ted was deeply traumatized by his violent grandfather. At age four, Ted and his mother Louise relocated to Tacoma, Washington. In short time his mother married an army cook, Johnnie Bundy. Ted was forced to live a meager lifestyle and grew up deeply resenting not having money or respectable social class affiliations. He nurtured feelings of inadequacy, of being unable to compete with others who possessed upper-middle-class standing. Michaud and Aynesworth (1983), who later interviewed Bundy, discovered: "Even the Little Teddy was deeply class conscious." As Leyton (1986) explained in his profile of Bundy, "The status anxiety seemed particularly intense in his relationships with women" (p. 98). He dated infrequently while in high school and, as Leyton points out, "he ultimately captured and killed sorority girls, or their idealized models, for it was an obvious way in which his class-scarred soul could conceive of the possession" (p. 99). His quest for identity served as a catalyst for constantly presenting himself, especially in physical disguises, to be somebody else. One person he truly did not want to be was Ted Bundy, the Nobody. Yet Ted seemed to lack the ability to comprehend the dynamics of social life, of being able to fit in, and admitted to his interviewers: "I didn't know what made people want to be friends. I didn't know what made people attractive to one another. I didn't know what underlay social interactions" (Michaud & Aynesworth, 1983, p. 68) Consequently Ted created a series of social fronts and disguises to help him blend into the "right groups." His decision to begin killing, however, was spurred only in part by his social-class paranoia. Ted later explained, using the third person, that he was eventually overcome by an internal force or an "entity" that constituted a "purely destructive power." In essence, Ted began to delve deeper into a world of sexual fantasy that became increasingly violent in nature. He consumed quantities of pornographic material depicting sexually violent acts. Bundy explained pornography "as a vicarious way of experiencing what his peers were experiencing in reality. Then he got sucked into the more sinister doctrines that are implicit in pornography-the use, abuse, the possession of women as objects" (Winn & Merrill, 1980, pp. 116-117).

He fed his sexual fantasies through voyeurism. For years he peeped through windows to watch women undress. Combined with his increasing appetite for alcohol, Ted was gradually preparing himself to begin his killing career. During this time he established what appeared to be an impressive record. He had been in Boy Scouts, worked as an assistant programs director at the Seattle Crime Commission and wrote, ironically enough, a booklet for women on rape prevention. He was even accepted to law school but attended only a few classes. He continued to struggle to fit in but perceived each setback as devastating, regardless of its true magnitude. Like some other serial killers, Bundy began to act out his fantasies by first stalking his women and then attacking them. As Leyton observed, "He decided to commit himself to another career... having failed at social mobility" (p. 106). Like Ed Kemper, Bundy had already picked out some dumping sites for his victims. It is unlikely we will ever know exactly how many victims Bundy accrued, but there exists sufficient evidence to link him to at least 30 homicides, though many people believed he killed nearly 40.

The victims were all young, attractive females who appeared to come from middle- or upper-middle-class families, and many were students. He killed victims in at least five different states between 1973 and 1978, usually leaving the bodies in secluded wooded areas.

Several bodies were not found until all that remained were a few bones scattered by animals. Some victims were never recovered. Robert Keppel, a former detective who investigated eight Bundy killings in the Seattle area, believes he may have murdered over 100 victims. Ted was usually able to lure the intended victim to his car by asking them for assistance. He was always polite and friendly and sometimes wore his arm in a sling to appear as a harmless, well-bred young man simply in need of help. At other times he was known to lurk in dark shadows and attack women who were alone. An early victim was abducted from her basement apartment where she was sleeping.

Ted usually attacked his victims with a blunt instrument, such as a tire iron or a wooden club, and rendered them unconscious. Some of them died quickly from having their skulls crushed, whereas others would linger for hours or days until Ted strangled them. Once Ted had maneuvered his victim into a position that allowed him to be in control, the woman's fate was inevitable. Only one victim managed to escape death after he had placed her under his control. He raped most if not all of his victims; several were subjected to sodomy and sexual mutilation. Some of the victims had vaginal lacerations caused by foreign objects. In the Chi Omega sorority house killings in Tallahassee, Florida, Bundy left teeth marks on the breast and buttocks of at least one victim. In some instances Bundy would keep the body for days and is believed by some investigators to have shampooed the hair of and applied makeup to more than one victim.

Ted also liked to match wits with law enforcement personnel, and on two occasions was able to escape from a jail and a courthouse in Colorado. Ted was able to avoid apprehension because of his degree of mobility. Moving from state to state, he drew in dozens of police agencies all wanting to capture him.

In the end, Ted's own psychopathology appeared to have caused his downfall. Before his last kill, Bundy drank heavily and resorted to frequent thefts of wallets and sprees of shoplifting. In his last few days of freedom he was overcome with desperation, paranoia, and the inability to make and act on decisions that would allow him to remain free. His frequent and excessive use of stolen credit cards and his impulsive purchases of clothing, especially socks, were not the actions of the "old" Ted who had been in control. Fueled by his paranoia, fetishes, and constant intake of alcohol, perhaps he foresaw or even wished his inevitable capture. Bundy's final victim, Kimberly Leach, whom he randomly selected from a grammar school, was only 12 years of age. A few days later after murdering her, Ted was pulled over by a suspicious patrol officer, and eventually police discovered that he had been placed on the FBI's Ten Most Wanted list.

Bundy was convicted of three murders and sentenced to die in Florida's electric chair. Reveling in the notoriety, he defended himself in court and used his trial to bask in the light of national TV and newspaper coverage. He finally gained the prominence and self-validation he so desperately sought. In an interview with Dr. Ron Holmes of the University of Louisville, Bundy discussed the classic characteristics of serial killers but could not recognize those traits in his own personality (author's files). He continued to the very end to employ legal maneuverings to avoid the electric chair. His trial and appeals cost approximately $9,000,000. Bundy's court record was one of Florida's longest in history, more than 28,000 pages, or about the size of the Encyclopedia Britannica. For Ted that was also a way to satisfy his desire for revenge on a society he believed maligned him. For Ted there was no guilt, and as he declared on one occasion, "I don't feel guilty for anything . . . I feel sorry for people who feel guilt" (Winn & Merrill, 1980, p. 313). As his interviewers, Michaud and Aynesworth, came to realize, Ted did not act under some irresponsible uncontrollable urge; rather he consciously used his free will, his agency, to create the killer within himself. Bundy's fame attracted many young female followers who continued to send him letters of love and support. During his incarceration in Florida, Ted married and even managed to father a child. He had absolutely no remorse for his crimes. As Ted so aptly observed, "I'm the coldest mother-fucker you'll ever put your eyes on. I don't give a shit about those other people." But in the end Ted decided to confess his crimes, possibly to buy additional time for himself. His confessions, his efforts to show he was insane, and that he did not receive a fair trial, all faltered.

As Bundy's execution date drew near, the nation watched with increasing interest. Talk shows, newscasters, and newspaper editors all began exploring the life of Ted Bundy and the phenomenon of serial murder in general. Some individuals and groups eagerly awaited his last moments. T-shirts with slogans such as "Fry-Day" and bumper stickers that read "I'll buckle up when Bundy buckles up" were common in Florida and other states where the killer had killed young women. Radio stations played a song parody, "On Top of Old Sparky," and an Indianapolis station held a "Bundy countdown" one hour before his execution. Dances and cookouts called "Bundy-Cues" were held in several locations. The execution in many respects took on the atmosphere of a circus. Even those strongly opposed to capital punishment were few in number at the Florida State Prison in Starke as dozens of people anxious to see him die cheered, set off firecrackers, and chanted "Burn, Bundy, Burn" as the appointed hour approached. Indeed, it was a disgusting end to a disgusting life. On January 24, 1989, at 7:00 a.m., Theodore Robert Bundy died in the electric chair. His last words before a black hood was placed over his head were "Give my love to my family and friends."

The following statements by Bundy attempt to add a rational note to his murderous career.

"Sitting there in a cell, I could convince myself that I was not guilty of anything."

"Walking right up to the edge [regarding confession] is a thrill, but I can't do it. I haven't allowed myself to choke."

"They [society] will condemn Ted Bundy while walking past a magazine rack that contains the very things that send kids down the road to being Ted Bundys."

Ted Bundy's Known Victims:

1/31/74 Lynda Ann Healy 21 Student WA Clubbing

3/12/74 Donna Gail Manson 19 Student WA ?

4/17/74 Susan Rancourt 18 Student WA Clubbing

5/6/74 Roberta K. Parks 22 Student OR Bludgeoning

6/1/74 Brenda C. Ball 22 Unemployed WA Clubbing/ strangulation

6/11/74 Georgeann Hawkins 18 Student WA ?

7/14/74 Janice Ott 23 Probation officer WA Bludgeoning

7/14/74 Denise M. Naslund 19 Secretary/student WA Bludgeoning

8/2/74 Carol Valenzuela 20 - WA Strangulation/ clubbing

8/2/74 Unidentified victim 17-23 - WA ?

10/2/74 Nancy Wilcox 16 Student UT ?

10/18/74 Melissa Smith 17 Student UT Strangulation/fractured skull

10/31/74 Laurie Amie 17 Student UT Strangulation/fractured skull

11/8/74 Debbie Kent 17 Student UT ?

1/12/75 Caryn Campbell 23 Nurse CO Fractured skull

3/15/75 Julie Cunningham 26 Ski instructor CO Fractured skull

4/6/75 Denise Oliverson 25 - CO -

1/15/78 Lisa Levy 20 Student FL Fractured skull

1/15/78 Margaret Bowman 21 Student FL Clubbing/strangulation

2/9/78 Kimberly Leach 12 Student FL Strangulation/slashed throat

Bundy also confessed to, or is believed by investigators to, have also murdered:

1973 Rita Lorraine Jolly, 17, Clackamas County, OR

1973 Vicki Lynn Hollar, 24, Eugene, OR

1973 Katherine Merry Devine, 14, Seattle, WA

1974 Brenda Joy Baker, 14, Seattle, WA

1975 Nancy Baird, 21, Farmington, UT

1974-1975 Sandra Weaver, 17, UT

1974-1975 Sue Curtis, 17, UT

1974-1975 Debbie Smith, 17, UT

1975 Melanie Suzanne Cooley, 18, Nederland, CO

1975 Shelly K. Robertson, 24, Denver, CO

I use psychopath Ted Bundy in my discussion of motive because twisted minds like his preclude normal and rational notions and ideals. The motive of a serial killer is usually sexual with control issues predominating. Their hatred of women somehow similar to their victims is obessessive. In the following discussion, the cases and psychological issues presented abound in murder, child molesting, rape, torture, and the many and asundry related crimes that accompany these horrors.

Is proof of a defendant's motive, not just his or her general or specific intent, slowly becoming a defacto requirement in the prosecutor's burden of proof?

Whether motive is an essential element of crime, has been long debated by practitioners and academicians of criminal law. In California, it was clear for decades that motive is not an element of any crime. However, recent case law and Legislative enactments are inexorably changing that view. Closing arguments of both prosecutors and defense attorneys have eternally focused on motive. Sometimes the statement that "motive is not an essential element of crime" is even more positive in form: "Motive is never an essential element of a crime." These broad generalizations cannot be wholly accepted without reservations and very careful analysis. Why would jurors interviewed after returning an acquittal say such things as "We just didn’t think the motive was strong enough" if motive is not an essential part of the burden of proof of crimes? It might be better to say: Proof of motive is unnecessary to support the conclusion of guilt otherwise sufficiently established." In contrast to otherwise well settled California law, many California courts have held that the prosecution must motive or motivation in order to prove the crime (murder premeditation and deliberation, child annoyance cases, lewd and lascivious acts, etc.). These decisions allude that the Legislature clearly intended motive to be a key crime element.

The motive with which an act of intent was committed is always relevant. Relevant facts or evidence are those which tend to prove or disprove a fact at issue. The presence or absence of motive on the part of the defendant might tend to establish the commission of a criminal act and may always be considered by a jury on the question of whether the defendant did commit it. But whenever it is established that the defendant committed the criminal act (regardless of established motive), all the requisites of criminal guilt are present. This is true even if no motive for the deed can be shown. Thus, while motive is always relevant, it is unnecessary to convict with other sufficient evidence. The problem is that prosecutors with a weak factual case, i.e., possibly otherwise insufficient evidence to convict or a purely circumstantial evidence case, may achieve a conviction if they can prove a motive behind the criminal act.

Motive is defined in Ballantine’s Law Dictionary as "[t]he power which impels to action for a definite result; that which leads or tempts the mind to indulge in a criminal act."It is relevant in murder cases. In People vs. Sears (1970) 2 Cal.3d 180, 84 Cal.Rptr. 711, the California Supreme Court said: "Lack of motive is relevant on the issue of identification and also to issues of premeditation and deliberation in murder prosecution."

Quotes from writings concerning motive include:

"The motive for a deed usually changes during its performance: at least, after the deed has been done, it seems quite different." - Hebbel

"All of our final resolutions are made in a state of mind which is not going to last." - Proust

Although sometimes confused, motive and intent are not synonymous. Some legal writers have advanced the notion that when an act is committed with more than one object in view, only the most immediate intent is called "intent" and any "ulterior intent" is called the "motive of the act." A burglar’s specific intent may be to steal. However, his motive may be to obtain enough money to buy presents for his children at Christmas. An emotional urge, unless counteracted by other urges, "leads the mind to desire" a particular result. This desire may in turn - or may not - prompt an intent to bring about that particular end. A sufficiently strong or long-lasting emotion couples with the intent at some point and leads the mind to contemplate criminal acts. Thus it is important to distinguish between the basic urge itself and the intent which resulted.

If you have ever seen the movie, 12 Angry Men (the old black & white with Henry Fonda or the 1997 version with George C. Scott), motive was very, very important. This movies, unlike most, mimicked a real jury deliberation quite well. If you haven't seen it, watch it. It teaches a lot about criminal justice and the questions that have always surrounded the jury system.

In fiction, whether written or film, we often hear a colloquy such as:

"Without a damn motive, we don’t have a case, detective!" Deputy District Attorney Randy Constole’s face was red. His neck muscles bulged.

"Tell that to the jury after they come back with an acquittal because we didn't prove a motive!"

* * * * *

If one person has caused the death of another by a gun shot, his intent may have been any one of a number, such as (a) to kill the deceased, (b) to frighten the deceased by shooting near him without hitting him, (c) to intimidate the deceased by pointing the weapon at him without shooting (accidental trigger pull), (d) to shoot at a target (perhaps not knowing that someone was behind it), or (e) to test the "pull" of the trigger of a gun supposed to be unloaded. If the intent was to kill, the motive may also have been one (or more) of the possible motives, such as (a) hatred, (b) revenge, (c) jealousy, (d) avarice, (e) fear, or even (f) love. In an interview in late December, 1997, it was reported that O.J. Simpson said something to the effect of: "If I had done this thing [killed his wife and Goldman], it would have been because I loved her so much. Right?" What could a jury have inferred from this motive-related statement? The media claims it implies guilt. What do you think?

Motive, which is not a statutory element of any crime, is yet a necessary issue to be proven to obtain a conviction of many, if not all, crimes. Jurors commonly want to know why many crimes are committed so that, with a good conscience, they may convict someone of the "proper" or "intended" crime. This becomes especially true when the defendant is likable and credible, disclaiming any specific or evil intent. Motive usually becomes important in first degree murder cases and specific intent crimes (robbery, burglary, etc.) because of the need to prove a criminal’s ulterior intent as well as his specific intent to act, i.e., to gain some advantage over someone else.

The following is presented from a closing argument by New York defense attorney Jacob A. Stein in a theft/embezzlement case:

"Now, it may be - and I may be dreaming about this - that some of you remember

parts of my opening statement. I am going to indulge that with you for a moment.

You probably do not remember because so much has happened since then. But

you may recall that I pointed out that the prosecution, in its opening statement,

did not give you any motive as to why my client would turn himself into a criminal.

The prosecutor gave you a motive for all defendants except my client.

Well, I was encourage by that because motive is very helpful in deciding whether

somebody is a criminal. In his closing argument, again no motive was given.

Now, the prosecutor would take great advantage of me if he were to hold back

the motive. When he rises again, he may tell you what the motive is. If he does so,

he will have played a very good game on me, because I do not have a chance to

speak to you again. The reason that he gave you no motive is because there is none.

In this puzzlement about why my client would turn himself into a criminal, why

is motive important? It’s not the whole story, of course. People turn themselves

into criminals sometimes without a motive. But why is motive so helpful to a

jury? Why have you heard the word "motive?"

If I needed money and I was working in a bank, and money was missing, once

it was established that I needed money, there would be an awful lot of fingers

pointed at me. That doesn’t mean I took the money, but it’s getting awfully

suspicious. Let’s say I needed the money, the amount I needed is missing, and I

had a chance to take some of the money. There we’re talking about motive.

Almost everything we do is built around what we think someone’s motive is

going to be. The prosecution has given you nothing with respect to motive

concerning my client. That doesn’t end the matter, but it certainly does give

you something to hang onto when you listen to the court’s instructions."

Motive. Why is it so important? Jurors want to know the ultimate question of: "Why did he do it?" It might be more accurate, therefore, to say that motive is always relevant and, because jurors usually want to know why a criminal act was committed, necessary to convict. Otherwise, jurors may find the remaining evidence insufficient and return an acquittal or be unable to reach a decision. Furthermore, motive is always relevant when considering the credibility of any witness. After all, if the witness has a motive to lie, the jury needs to know. It is up to the jury to decide whether the witness is lying or not, and whether to entirely or partially discredit the witness.

The following several cases in which motive was and important issue. The case is cited then the applicable portion or holding of the case is given. These are cases involving capital murder, child molesting, rape, drugs, burglary, hate crimes, and all those evils and harm that career criminals serve upon their prey.

Murder, Misdemeanor Battery

People v. Estep (1996)

49 Cal.Rptr.2d 859, 42 Cal.App.4th 733

Defendant was convicted in the Superior Court of murder and misdemeanor battery and defendant appealed. The Court of Appeal held that instruction regarding jury's consi-deration of motive was proper. Affirmed.

CALJIC No. 2.51 did not concern the standard of proof in this case, but merely one circumstance in the proof puzzle--motive. Defendant cannot quarrel with the concept that presence of motive is a circumstance that may tend to establish guilt. The flip side of this indisputable concept is that absence of motive is a circumstance that may tend to establish innocence. Since CALJIC No. 2.51 does not instruct jurors on the standard of proof they are to apply, it would be awkward (and confusing in context) to say that on the one hand "presence of motive may tend to establish guilt" while on the other hand "absence of motive may tend to establish that guilt has not been shown beyond a reasonable doubt." In this way, then, the word "innocence" in CALJIC No. 2.51 plays to a defendant's advantage. Instruction stating that motive may tend to establish guilt and absence of motive may tend to establish innocence was proper and did not erroneously inform jurors that their duty was to decide if defendant was guilty or innocent where jury was also informed of reasonable doubt standard.

Murder, Robbery, Burglary, Conspiracy

People v. Price (1991)

3 Cal.Rptr.2d 106, 1 Cal.4th 324

Defendant was convicted in the Superior Court of first-degree murder, robbery, use of firearm, burglary, receiving stolen property, and conspiracy and was sentenced to death. On automatic appeal, the Supreme Court held that: (1) trial court had territorial jurisdiction; (2) defendant was not entitled to change of venue; (3) trial court did not abuse its discretion in discharging juror and seating alternate in his place in midst of trial; (4) any error in rulings on evidence did not require reversal; and (5) there was no error in penalty phase requiring reversal. Affirmed.

Inducements to Prosecution Witness.

Prosecution witness Clifford Smith testified that the prosecution had promised to protect his family if he testified against defendant. During cross-examination, defense counsel asked which family members the promise covered, whether it meant that they would be relocated to another part of the state, and whether the prosecution had paid to move any member of the witness's family. The prosecution objected to each of these questions for lack of relevance, and the trial court sustained each objection. Defendant contends that the rulings were erroneous and that they denied him his state and federal constitutional rights to confront the witnesses against him.

The rulings were erroneous. In determining the credibility of a witness, the jury may consider, among other things, "[t]he existence or nonexistence of a bias, interest, or other motive" for giving the testimony. (Evid.Code, s 780, subd. (f).) In a criminal case, therefore, the defense is entitled to explore the nature of any promises the prosecution has made or inducements it has offered to its witnesses. (People v. Duran, supra, 16 Cal.3d 282, 294, Although trial courts retain wide latitude to impose reasonable limits on defense inquiry into the potential bias of a prosecution witness (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679, the trial court here erred in precluding all inquiry into the nature and [1 Cal.4th 423] extent of the promised protection, particularly when the only objection made was on grounds of relevance.

But defendant was not prejudiced by the erroneous rulings. First, the jury was informed that the promise of protection was made, and Smith eventually testified that his mother had been relocated. Thus, the most essential facts were revealed. Second, the evidence had only slight value for impeachment because it is unlikely that a witness would testify falsely to obtain protection for family members when the protection is needed only because of the testimony. A promise is unlikely to be a significant inducement if its primary effect is to eliminate a negative consequence of the testimony rather than to provide a positive benefit.

Here, it appears that the danger to the witness's family, against which the prosecution promised protection, was largely or even entirely a result of the witness's agreement to cooperate. Third, the defense presented evidence of other and stronger inducements. Smith testified that in exchange for his testimony he was promised immunity from prosecution for any offense related to the Barnes killing. Smith said he was then serving a sentence of 25 years to life, with his first parole hearing scheduled for 2007.

Defendant was not prejudiced by prosecutor's questioning of prosecution witness, who denied that his testimony was motivated by promise that his mother would not be prosecuted for smuggling drugs to him in prison, as to where such a story could have come from and witness' reply that it may have come from defendant; point was peripheral, witness admitted he was speculating, and court struck testimony and instructed jury not to use testimony in deciding case.

There was no misconduct when after defendant's first objection was sustained as to prosecutor's asking prosecution witness, who had been part of prison gang which prosecution claimed hired defendant to commit murder, if witness could name some of people whom prison gang members intended to kill, prosecutor then asked witness whether investigator who had testified in case was on hit list; danger which gang posed to witnesses testifying against gang member had significant bearing on credibility and motives of those witnesses and prosecutor could reasonably have concluded that trial court sustained first defense objection because names of persons unconnected with case would have no relevancy, and although witness had defected from the gang, he had done so only after preliminary hearing in case and thus possessed reasonably current information on decisions of prison gang leadership.

Robbery, Burglary, Murder

People v. Hayes (1990)

276 Cal.Rptr. 874, 52 Cal.3d 577

Defendant was convicted of robbery, burglary, and first-degree murder, and was sentenced to death, in the Superior Court, and judgment was automatically appealed. The Supreme Court, held that: (1) trial court properly concluded that prosecution's peremptory challenges of black jurors were generally executed for reasons stated rather than on basis of group bias; (2) defense counsel was not ineffective in failing to object to another victim's testimony that he had received government funds under witness protection program because of "word in the street"; (3) evidence of other offenses was admissible to establish that defendant intended to rob victim when he assaulted and killed him; (4) trial court's special instruction on robbery impermissibly rendered "immediate presence" element of robbery devoid of all independent meaning, thus requiring reversal of robbery conviction; and (5) instruction on consideration of aggravating and mitigating circumstances, although potentially misleading, did not, in view of additional instruction, mislead jury as to its responsibilities. Affirmed in part and reversed in part.

Evidence that defendant committed crimes other than those for which defendant is being tried is barred if it is offered to prove defendant's criminal disposition, but not if it is offered to prove material disputed issue such as motive or intent. Evid.Code s 1101.

Trial counsel's strategy in first-degree murder trial of effectively withdrawing self-defense claim and instead arguing that killing was irrational act motivated by anger or unreasonable fear, but not by intent to rob, and that defendant acted irrationally because he was suddenly awakened by slap to face after not sleeping for three days and after having ingested both heroin and "Ritalin," did not establish that counsel was incompetent; strategy minimized risk that jury would find that special death penalty circumstances were true, strategy preserved possibility of manslaughter verdict, and theory of self-defense had little chance of success. Penal Code § 187; U.S.Const.Amend. 6.

Capital Murder

People v. Taylor (1990)

276 Cal.Rptr. 391, 52 Cal.3d 719

Defendant was convicted of capital murder. Death sentence judgment was entered in the Superior Court. On automatic appeal, the Supreme Court held that: (1) additional voir dire of jury was not required in penalty phase, after defendant had offered no evidence in guilt phase; (2) erroneous introduction of evidence of two prior convictions, occurring after date of homicide, was not prejudicial; and (3) improper instruction on motive, given in penalty phase, was not prejudicial. Affirmed.

Defendant contends the court erred in giving the instruction on motive because motive is irrelevant to the issue of penalty. The People, on the other hand, assert that the instructions on motive related to the jury's duty to determine whether defendant had committed the violent criminal activity alleged. We agree that motive would have some relevance to that question, but we are unable to find that the instructions adequately connected the question of motive to the alleged violent criminal activity. The very irrelevance of the question of motive shows the harmlessness of the error in giving the instruction during the penalty phase. There is no reasonable possibility that the jury would have reached a more favorable result had this instruction not be given. (See People v. Brown, 46 Cal.3d at p. 448). Trial court committed harmless error in instructing jury, in penalty phase of capital murder case, that presence or lack of motive could be considered as factor in case; motive was obviously irrelevant on issue of penalty.

Murder of Wife & Unborn Child

People v. Hamilton (1989)

259 Cal.Rptr. 701, 48 Cal.3d 1142

Defendant (an attorney) was convicted of first-degree murder of pregnant wife and unborn child and sentenced to death by the Superior Court. On automatic appeal, the Supreme Court held that: (1) possibility of hidden bias on part of prosecutor as result of complaint filed against him with state bar was not sufficient to compel prosecutor's recusal; (2) trial court lacked authority to sanction co-counsel arrangement over defense attorney's opposition; and (3) accomplice's uncorroborated testimony is sufficient to establish special aggravating circumstance, as long as circumstance does not require proof of any additional crime.

Defendant points out that Sharon's purchase of the gun might cast doubt on the truthfulness of Gilbert and Brenda. But there are two fundamental problems with defendant's case which undermine any claim of prejudice. The first, as noted earlier, is that no affirmative testimony supports defendant's theory of Gilbert as the actual killer. The second is that Gilbert had no motive to kill Gwendolyn unless he was hired to do so by defendant, and defendant as the hirer of the killer would still be guilty of murder.

Portion of witness' tape-recorded statement, in which she described defendant's motive for committing homicide, related to "same subject" as other portion of statement previously played by defendant and was properly admitted into evidence; court would not draw fine distinction between portion of statement relating to defendant's motive and portion relating to planning of crime. Evid.Code s 356.

Death Penalty - Murder

People v. Hunter (1989)

264 Cal.Rptr. 367, 49 Cal.3d 957

Defendant was convicted in the Superior Court of murder, and was sentenced to death. Defendant appealed. The Supreme Court held that: (1) prosecutor's discovery of defense investigator's report was not reversible error; (2) court properly refused to grant judicial use immunity to defendant's girlfriend; and (3) defendant was not entitled to cautionary instruction as to trustworthiness of immunized witness testimony. Affirmed. Even if giving of transferred intent instruction was erroneous, in case where both intended and unintended victims were killed, defendant was not prejudiced in that evidence of motive and planning as to both killings was overwhelming.

Murder of Child

People v. Jordan (1988)

252 Cal.Rptr. 452d, 205 Cal.App.3d 505

Defendant Jordan argues on appeal : "In the instant case over defense counsel's objection, the court allowed the prosecution to bring in evidence that appellant had a pending misdemeanor child endangerment case. In that pending misdemeanor trial Juanita was to be the complaining witness. The pending court appearance was scheduled for ..., the day after Juanita was killed. The prosecution argued that the pending case gave appellant a motive to kill Juanita. The probative value of the pending case was minimal. The prosecution was asking the jury to make an assumption that appellant would kill Juanita because of a pending misdemeanor. Appellant was allowed to provide the jury with the background of the pending charge, which involved leaving his son unattended in a car for a short period of time."

Evidence of motive is always admissible in criminal cases. "The presence or absence of motive is a circumstance going to the question of the guilt or innocence of the accused, and proof thereof is always admissible, often valuable and is sometimes of assistance in removing doubt and completing proof which might otherwise be unsatisfactory, and sometimes is relevant in solving a doubt as to the degree of the offense and may be material where the evidence as to the identity of the criminal is circumstantial.

Considerable latitude is allowed in the reception of evidence on the question of motive. It is settled that evidence having a direct tendency, in view of the surrounding circumstances, to prove motive on the part of a person to commit the homicide, and thus to solve a doubt either as to the identity of the slayer, ..., or the justification or excusability of his act, is admissible, however discreditably it may reflect upon the defendant and even where it may show him guilty of other crimes." (People v. Gonzales (1948) 87 Cal. App.2d 867, 877-878, 198 P.2d 81.)

Murder & Kidnapping of Child

People v. Alcala (1984)

205 Cal.Rptr. 775, 36 Cal.3d 604

Defendant was convicted in the Superior Court of first-degree murder and forcible kidnapping, and appeal automatically followed death sentence. Defendant also filed related petition for habeas corpus. The Supreme Court held that: (1) admission of evidence as to defendant's prior offenses was prejudicial error, requiring reversal of convictions and special circumstance finding; (2) evidence was sufficient to support findings that force or fear was used to transport victim and that murder was premeditated and deliberated, and thus, double jeopardy would not bar retrial of those issues; and (3) defendant could be retried on all counts of current information despite asserted irregularities at preliminary hearing.

Corpus delicti of crime may not be proved solely by the admissions of the accused.

An exception for the accomplice testimony rule that interested witness' entitlement to full credit is matter for trier of fact and arises from the accomplice's overwhelming motive to shift blame to defendant, either to minimize his own liability at trial or to convince authorities it is worth immunizing him to obtain his testimony against the defendant. Evid. Code s 411.

In a prosecution for first-degree murder and forcible kidnapping, in which jury was fully apprised of possible selfish motives for jailhouse informant's testimony against defendant and testimony was labeled false by another inmate, informant's testimony was not unworthy, as matter of law, of "full credit" under statute which provides that direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, though proof that victim was compelled by force or fear to accompany defendant was required to appear from evidence other than informant's account of his conversation with defendant. Evid.Code s 411.

In homicide prosecution in which circumstantial evidence is offered to establish premeditation and deliberation, if fewer than all three indicia of planning, motive, and manner of killing are present, at least extremely strong evidence of planning or evidence of motive in conjunction with either planning or deliberate manner of killing is required. [Author’s note: It is important that here you recognize that the court used the word," required," unlike other cases and texts]

Evidence that defendant took 12-year-old victim by force or fear to isolated location and brought along knife which he subsequently employed, that defendant had motive to kill victim, who was only witness to her kidnapping, and that victim's body had multiple stab wounds and her head had been struck with blunt object, supported finding of premedi-tation and deliberation to support first-degree murder conviction.

In prosecution for first-degree murder and forcible kidnapping, defendant's prior offenses against females under 18 years old were inadmissible, as prior offenses were not sufficiently similar to establish defendant's identity as perpetrator, nor defendant's intent in earlier approaching victim on beach, nor defendant's plan or scheme or motive for premeditated murder. Evid.Code s 1101(a).

Murder by Torture

People v. Lynn (1984)

206 Cal.Rptr. 181, 159 Cal.App.3d 715

(San Diego)

Defendant was convicted before the Superior Court of first degree-murder and he appealed. The Court of Appeal held that: (1) there was sufficient evidence to support first-degree murder conviction on theory that it was a premeditated and deliberated killing or that it was a murder by torture; (2) instructions regarding torture murder were not confusing, incomplete or in error; (3) statutes abolishing defense of diminished capacity are valid enactments and not deprivations of due process; (4) any error in admitting statements of witness to murder made day after crime under spontaneous declaration rule was harmless; (5) there was no error in admitting notes received by witness to murder while witness was in jail; and (6) there was no error in admitting photographs of murder victim showing tightly tied cord around victim's neck, knot in cord, and victim's face with tongue protruding.

"The crime of murder by torture does not necessarily require any proof that the defendant intended to kill the deceased, nor does it necessarily require any proof that the deceased suffered pain." The general rule is motive is not an element of any crime. (1 Witkin, Cal.Crimes, Elements of Crime, s 54 and authorities cited.) To make his argument, Lynn emphasizes the language in CALJIC No. 8.24 and similar language in certain cases which requires an intent to cause cruel pain and suffering "for the purpose of revenge, extortion, persuasion or for any sadistic purpose." This language does not elevate motive to the status of an element of torture murder. Rather, as CALJIC No. 2.51 instructs, the presence or absence of motive remains a circumstance in the case which may tend to establish guilt or innocence. CALJIC No. 8.24 simply makes explicit the treatment of motive as an element of proof in torture murder cases rather than as an element of the crime. The instruction does not change the treatment of motive from that in other first degree murder cases. (See People v. Anderson, supra, 70 Cal.2d 15, 26-27, 73 Cal.Rptr. 550, 447 P.2d 942.) Thus, the trial court committed no error in instructing on motive. Judgment affirmed.

Sale of Substitute in Lieu of Drug

People v. Morocco (1987)

237 Cal.Rptr. 113, 191 Cal.App.3d 1449

(San Diego)

Defendant was convicted in the Superior Court of two counts of solicitation of murder and one count of sale of substitute in lieu of controlled substance, and he appealed. The Court of Appeal held that: (1) question whether one or multiple solicitations took place is question of fact on which jury should be instructed to consider whether multiple crimes requested by defendant were part of larger, all-inclusive plan with single objective and/or motive, and (2) defendant's request that acquaintance kill defendant's former wife and her new husband was one rather than two counts of solicitation of murder. Judgment, as modified, affirmed.

Where two or more persons agree to commit a number of criminal acts, test of whether single conspiracy has been formed is whether acts were tied together as stages in formation of larger all-inclusive combination, all directed to achieving single unlawful end or result. Question whether one or multiple solicitations took place is question of fact on which jury should be instructed to consider whether multiple crimes requested by defendant were part of larger, all-inclusive plan with single objective and/or motive.

Defendant's request that acquaintance kill defendant's former wife and her new husband was one rather than two counts of solicitation of murder; potential victims were husband and wife, they were to be killed at same time, presumably by same means, and there was no suggestion of an independent motive or objective as to each victim. Penal Code s 653f.

Cocaine - Possession and Transportation

People v. Thomas (1988)

254 Cal.Rptr. 15, 206 Cal.App.3d 689

Defendant was convicted of possession of cocaine for sale and transportation by the Superior Court and he appealed. The Court of Appeal held that evidence of defendant's prior conviction for assault with deadly weapon was admissible for impeachment purposes. Neither simple assault, simple battery, nor even felony battery are offenses involving "moral turpitude," within meaning of impeachment rule. Theoretical possibility that crime may have been committed for noble motive, or under mistaken belief that would have excused offense if reasonable, does not mean that crime does not involve "moral turpitude" within meaning of impeachment rule.

Entrapment Defense

People v. Martinez (1984)

203 Cal.Rptr. 833, 157 Cal.App.3d 660

Defendant was convicted before the Superior Court of two counts of sale of cocaine, and he appealed. The Court of Appeal held that: (1) entrapment instruction which informed jury that to establish entrapment defense defendant had burden of proving that conduct of officers was such as would likely induce a "normally law-abiding person" to commit the crime constituted reversible error, since phrase "normally law-abiding person" unfairly shifted focus of jury from central issue of character of police conduct to irrelevant and ambiguous inquiry into character of defendant, and (2) trial court committed prejudicial error in giving instruction on motive, where defendant conceded that he committed offenses, but instead relied entirely on entrapment, and, as a result of improper entrapment instructions, it was probable that jury believed that a finding of motive would tend to negate defendant's entrapment defense. Convictions reversed.

The use of an attractive young female undercover agent posing as an unemployed Las Vegas card dealer, introduced to defendant by a friend who was a known prostitute, and acting part of a loose woman who might trade sexual favors for narcotics, fell far short of acceptable standard of police conduct and constituted "entrapment."

Trial court in prosecution for sale of cocaine committed reversible error in instructing jury that to establish entrapment defendant had burden of proving by preponderance of evidence that conduct of officers was such as would likely induce a "normally law-abiding person" to commit the crime, since phrase "normally law-abiding person" unfairly shifted focus of jury from central issue of character of police conduct to irrelevant and ambiguous inquiry into character of defendant.

Creation of motive by improper police conduct is the very essence of "entrapment."

Trial court in prosecution for two counts of sale of cocaine erred in giving instruction on motive, where defendant never claimed that he did not commit the offenses, but instead relied entirely on entrapment defense; moreover, error was prejudicial since confusion generated by entrapment instructions which caused jury to improperly focus upon defendant's character rather than nature of police conduct was compounded by adding admonition that jury consider motive "as a circumstance" tending to "establish guilt," since it was probable that jury believed that a finding of motive would tend to negate defendant's entrapment defense.

Sale of Methamphetamine

People v. Lee (1990)

268 Cal.Rptr. 595, 219 Cal.App.3d 829

(San Diego)

Defendant was convicted in the Superior Court of selling methamphetamine, and defendant appealed. The Court of Appeal held that: (1) defendant was not entitled to entrapment instructions; (2) instructions defining entrapment as conduct that would likely induce normally law-abiding person to commit crime did not improperly focus on defendant's character; and (3) error in giving motive instruction was harmless. Judgment affirmed.

Entrapment focuses upon police conduct and not defendant's predisposition. Police conduct which offers suspect opportunity to commit crime is not "entrapment"; however, appeal by police that would induce such person to commit act because of friendship or sympathy, instead of desire for personal gain, is "entrapment." Entrapment is ordinarily question of fact.

In light of substantial evidence that defendant sold drugs to earn money, and fact that defendant and informant knew each other for only three weeks, defendant failed to establish entrapment as matter of law on ground that she sold drugs out of friendship toward informant. "Friendship" between defendant and informant did not rise to level requiring finding of entrapment as matter of law, where informant gained defendant's confidence by discussing basketball and most intimate moment was spent throwing trash into wastebasket.

Over defense objection, the court instructed the jury with CALJIC No. 2.51 on motive:

"Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt. Absence of motive may tend to establish innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled."

Instructions defining entrapment as conduct that "would likely induce a normally law-abiding person to commit the offense" did not erroneously focus on defendant's character rather than police conduct; rather, instructions focused jury's attention on officer's conduct in hypothetical case--its effect on normally law-abiding person. Testimony concerning content of ship's log was not admissible under state of mind exception to hearsay rule; log entry reflected witness' state of mind only in sense that any statement of past event is statement of declarant's then-existing state of mind. Evid.Code s 1250(b). 

Child Annoyance

People v. Maurer (1995)

38 Cal.Rptr.2d 335, 32 Cal.App.4th 1121

Defendant was convicted in the Superior Court of two counts of misdemeanor child annoyance, and defendant appealed. The Court of Appeal held that: (1) trial court should have excluded offenses of misdemeanor child annoyance from instruction that motive was not an element of crime that applied to other charged felony offenses; (2) defendant did not invite error; and (3) error could have contributed to verdict. Reversed.

In proving the mental state element of misdemeanor child annoyance, prosecution must show that acts or conduct were motivated by unnatural or abnormal sexual interest. Trial court should have excluded offenses of misdemeanor child annoyance from instruction that motive was not element of crime that applied to other charged felony offenses, since conviction for child annoyance required finding that defendant's acts were motivated by unnatural or abnormal sexual interest in child. Defense counsel's request for motive instruction as related to misdemeanor child annoyance charges appeared to have been made out of ignorance and mistake, rather than for a deliberate tactical purpose, and therefore error in giving motive instruction with misdemeanor charges was not invited by defendant, where misdemeanor charges were only 6 of 22 charges levied against defendant and the rest of the charges involved felony accusation to which motive instruction was relevant and defense counsel apparently focused on the more serious felony charges to which instruction applied.

Trial court committed reversible error in giving instruction that motive was not element of crime regarding charged offenses of misdemeanor annoyance of child, conviction of which required finding that defendant's acts were motivated by unnatural or abnormal sexual interest in child, since juror could have determined that defendant's comments, one about defendant's experience with older woman, and other that victim admitted that she had to pry out of defendant, were motivated by other than such interest in victim, so that erroneous instruction may have contributed to verdict. Penal Code § 647.6; CALJIC 2.51, 16.440.

Hate Crimes

In re Joshua H., a Minor (1993)

17 Cal.Rptr.2d 291, 13 Cal.App.4th 1734

Juvenile defendant was convicted by the Superior Court of violating "hate crime" statute by committing violent crime to interfere with victim's protected rights because of his sexual orientation, and defendant appealed. The Court of Appeal held that: (1) hate crime statute was not void for vagueness in that it required finding of specific intent to deprive victim of protected right, and (2) hate crime statute, which regulated acts of violence intended to interfere with victim's protected rights, did not punish protected speech.

One is free to think, speak, publish and even advocate racist, sexist, anti-Semitic, anti-gay, or other bigoted ideas without running afoul of Penal Code section 422.7. Penal Code section 422.7 targets discriminatory conduct, not speech, and therefore falls outside the rule and within the exceptions set forth by R.A.V. The statute is accordingly valid under the First Amendment.

Can Criminal Motive Be Considered in Determining Guilt?

The Wisconsin and Ohio courts found fault with their hate crime statutes for punishing "motive." Both agreed that "intent" could be made an element of a crime but "motive" could not. The courts' reasoning was based in large part on Professor Gellman's law review article, "Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws," supra, 39 UCLA L.Rev. 333. The Wisconsin court quoted from her article: "'Motive,' 'intent,' and 'purpose' are related concepts in that they all refer to thought processes. They are legally distinct in crucial respects, however. Motive is nothing more than an actor's reason for acting, the 'why' as opposed to the 'what' of conduct. Unlike purpose or intent, motive cannot be a criminal offense or an element of an offense." (State v. Mitchell, supra, 485 N.W.2d at p. 813, fn. 11.) The Ohio court also relied on an argument made by LaFave and Scott, 1 Substantive Criminal Law (1986) 318, Section 3.6, that "if defined narrowly enough, motive is not relevant to substantive criminal law...." (State v. Wyant, supra, 597 N.E.2d at p. 453.)

Each court determined that "motive" was what was being punished by their respective hate crime statutes, that motive could not be an element of a criminal offense, and that the statutes were therefore invalid. We disagree.

As amicus curiae, The American Civil Liberties Union (ACLU), points out, the Wisconsin and Ohio courts' "enslavement to labels makes little or no sense in either logic or constitutional policy. 'Intent' and 'motive' as used by the court to distinguish between the 'what' and the 'why' of the crime are relative rather than absolute concepts, the definition of which turns simply on where one chooses as a starting point. Professor Gellman's example of the crime of burglary discussed in footnote 11 of the Mitchell opinion [13 Cal.App.4th 1751] illustrates the point. Breaking and entering could be the 'what' of the crime and the perpetrator's purpose of taking property could be the 'why.' Under that construct, the burglar's 'motive' is relevant to the crime charged. Alternatively, breaking and entering for the purpose of taking property could be defined as the 'what' and the desire to obtain money to pay debts the 'why.' In that case, the burglar's 'motive' is irrelevant.

Whether perpetrator's intentional selection of victim because of his or her race or other status is denominated as "intent" or "motive," it is relevant and may properly be considered in determining guilt under "hate crime" statute; it is selection of victim because of race or other status, not reason for that selection, that triggers additional punishment imposed by hate crime statute. Affirmed.

Hate Crimes

In re M.S. (Cal. 1995)

In re A.G., a Minor.

42 Cal.Rptr.2d 355, 10 Cal.4th 698

Juveniles were charged with violation of hate crime statutes, assault with deadly weapon, and battery arising out of confrontation with homosexual men. The Superior Court declared juveniles to be wards of court. Juveniles appealed. The Supreme Court granted review, superseding opinion of Court of Appeal. The Supreme Court held that: (1) hate crime statutes were not unconstitutionally overbroad or vague; (2) hate crime statutes require proof of specific intent to interfere with person's right protected under state or federal law; (3) "group of persons" as used in one hate crime statute means specific group of persons, not abstract groups or protected classes; (4) "apparent ability" as used in one hate crime statute implies that threat must be one that would reasonably tend to induce fear in victim; (5) crime with multiple concurrent causes is committed because of bias, if bias was substantial factor in commission of crime; (6) statute has not been implicitly exempted from statute prohibiting punishment under more than one statute if act or omission is made punishable in different ways by different provisions of code; and (7) pleadings and evidence were sufficient. Affirmed in part and remanded.

Under "overbreadth doctrine," litigants may challenge statute not because their own rights of free expression are violated, but because very existence of overbroad statute may cause others not before court to refrain from constitutionally protected expression. To succeed in constitutional challenge based on asserted overbreadth, challengers must demonstrate that statute inhibits substantial amount of protected speech. State may penalize threats, even those consisting of pure speech, provided relevant statute singles out for punishment threats falling outside scope of First Amendment protection. As speech strays further from values of persuasion, dialogue, and free exchange of ideas and moves toward willful threats to perform illegal acts, state has greater latitude to regulate expression. U.S. Const.Amend. 1.

To comply with First Amendment, statutes criminalizing threats must be narrowly directed against only those threats that truly pose danger to society. When reasonable person would foresee that context and import of words will cause listener to believe he or she will be subjected to physical violence, threat falls outside First Amendment protection.

Hate crime statute permitting conviction based on speech threatening violence against specific person or group of persons does not violate First Amendment on overbreadth or vagueness grounds; "group of persons" means specific group of individuals, not abstract groups or protected classes, and statute proscribes true threats as traditionally understood, not what might be termed "group libel." U.S. Const.Amend. 1; Penal Code § 422.6. "Group of persons" as used in hate crime statute permitting conviction based upon speech threatening violence against specific person or group of persons means specific group of individuals, not abstract groups or protected classes. Penal Code § 422.6.

Legislature's expressed desire in enacting hate crime statutes to afford greater protection to disfavored minority group was not substantial evidence of unconstitutional intent to enact overbroad law. U.S. Const.Amend. 1; Penal Code 422.6, 422.7. Failure of hate crime statute to require immediacy or imminence of threatened harm did not render statute unconstitutional under First Amendment.

Hate crime statutes require proof of specific intent to interfere with person's right protected under state or federal law. Threats are not, for First Amendment purposes, treated identically with either fighting words or expression tending to incite imminent lawless action. Violence and threats of violence fall outside protection of First Amendment because they coerce by unlawful conduct, rather than persuade by expression, and thus play no part in marketplace of ideas. "Apparent ability" within meaning of hate crime statute permitting conviction based on speech threatening violence against specific person or group of persons, if defendant had apparent ability to carry out threat, is construed objectively and implies that threat must be one that would reasonably tend to induce fear in victim. Penal Code § 422.6(c).

Term "because of" in hate crime statutes enhancing punishment or prohibiting certain acts because of victim's race, religion, ancestry, national origin, or sexual orientation requires that bias motivation be cause in fact of offense, whether other causes also exist; when multiple concurrent motives exist, prohibited bias must be substantial factor in bringing about the crime, and the prohibited motivation need not be predominant, exclusive, or "but for" cause. Penal Code §§ 422.6, 422.7. Specific intent requirement in hate crime statutes mitigates their potential vagueness; one who willfully threatens violence against another, motivated by victim's protected characteristic, cannot later be heard to complain he or she was unaware such conduct might violate hate crime statutes and that they are unconstitutionally vague under due process clause. U.S. Const.Amends. 5, 14; Penal Code §§ 422.6, 422.7.

Hate crime statute that prohibits force or threat of force willful injuring, intimidating, interfering with, oppressing, or threatening victim in free exercise of rights because of race, color, religion, ancestry, national origin, or sexual orientation is not content-based regulation of speech and, therefore, does not violate First Amendment; statute seeks to punish discriminatory threats of violence motivated by prohibited bias, seeks to protect individuals in exercise of and enjoyment of rights, and does not have aim and effect of suppressing speech, state's interest in protecting inhabitants is substantial and important and unrelated to suppression of free expression, and no less restrictive means are available. Penal Code § 422.6.

Hate crimes statute raising to felony status bias-motivated misdemeanor committed against another's person or property for purpose of intimidating or interfering with that person's free exercise or enjoyment of statutory or constitutional right does not impinge on freedom of expression and is not overbroad under First Amendment; statute increases punishment for misdemeanors committed because of prohibited bias motivation. U.S. Const.Amend. 1; Penal Code § 422.7.

Victims' testimony as to violence and threats of violence committed by juveniles, together with anti-homosexual epithets uttered by them, evidenced prohibited bias motivation and supported conclusion that juveniles acted with specific intent required by hate crime statutes. Penal Code §§ 422.6, 422.7.

Responsibility, accountability, answerability, faultability, burden, charge, culpability, duty, encumbrance, liability, obligation. Pick your favorite words. Mens Rea means answera-bility to the criminal law. No one is answerable for consequences not legally imputable to him. Furthermore, consequences properly imputed to a accused or arrestee may be very harmful but yet not be supported by sufficient evidence to require him to answer under the criminal law. Whether he is required to answer or not is the problem of "responsibility."

Crime requires act and intent. The Latin phrase from which it stems is: "Actus non facit reum, nisi mens sit rea." Mens rea, literally interpreted means "guilty mind" or "mind at fault." Every crime is made up of two parts: (1) physical acts and (2) mental processes. These are also known as actus reus and mens rea. If we prove the physical acts but fail to prove the mental (or vice versa), there is insufficient evidence to convict. For mens rea, the mind cannot be too disturbed by mental disorders or diseases. The sane mind must not be too distracted by mistakes of law or fact.

To prove that the accused is guilty of a crime, the prosecution must show that the accused performed a particular act concurrent with a particular intent or mental state. Mental states that can lead to criminal culpability are general intent, specific intent, and criminal negligence. A corporation may be reckless, form intent, and commit acts through its agents, and therefore may be held liable for criminal acts attributable to it. The question of the intent with which an act was done is a question of fact which may be inferred from the surrounding circumstances. A jury finding of intent cannot be set aside on appeal if it is sustained by a reasonable inference.

General Intent

The majority of crimes require only a showing of general intent. To prove general intent it is necessary to show that the person performing the proscribed criminal act actually intended to perform it. If the statute does not specify that specific intent is necessary, only general intent is required. When the definition of a crime consists only of the description of a particular act, without reference to intent to do a further act or achieve a future consequence, the crime is one of general intent. In contrast, if the definition refers to an intent to do some further act or achieve some additional consequence, the crime is one of specific intent. Words of general intent that may appear in a statute are:

(1) Willfully. Willfulness implies a purpose or willingness to commit the act and does not require any intent to violate a law, injure another, or acquire any advantage. Essentially it means that the person knows what he or she is doing, intends what he or she is doing, and is a free agent. Knowledge of the act's prohibited character is unnecessary.

(2) Knowingly. The knowledge required to show intent is only a knowledge that the facts exist which bring the act or omission within the provisions of the Penal Code. It does not require knowledge that the act is unlawful.

(3) Corruptly. Corruption imports a wrongful design to acquire or cause some pecuniary or other advantage to the person performing the criminal act or omission.

(4) Maliciously. Malice implies a wish to vex, annoy, or injure another person, or an intent to do a wrongful act.

General intent malice is distinct from malice aforethought, which is required for a homicide conviction.

Specific Intent

Specific intent crimes are those in which the defendant is aware of and desires the consequences of his or her actions. A statute requiring specific intent usually refers to the defendant's intent to do some further act or achieve some additional consequence beyond the particular act in question. Some of the more common specific intent crimes are:

(1) Attempts;

(2) Burglary;

(3) Conspiracy;

(4) Larceny;

(5) Passing a check with the intent to defraud;

(6) Robbery; and

(7) Sexual abuse of a child.

Specific intent crimes are particularly vulnerable to mental state defenses such as insanity or voluntary intoxication. Evidence of serious mental illness or other mental condition is admissible, even in the aftermath of Proposition 8's abolition of the ``diminished capacity'' defense, if the evidence will negate a specific intent that is a necessary element of a charged crime.

Transferred Intent

Under this doctrine, when a defendant intends to commit a crime on one person, but by mistake or inadvertence, commits the crime on another person, the crime is the same as though the person intended to be the victim had been the victim. For example, in a murder or manslaughter prosecution, when the defendant intends to kill a particular person, but kills someone else unintentionally, the specific intent to kill may be ``transferred'' to that of the actual victim, and the defendant convicted of the murder or the manslaughter of the actual victim. In addition, the defendant may be convicted of the attempted murder of the intended victim. This is because the defendant has committed crimes against two victims--the murder of the unintended victim and the attempted murder of the intended victim. If the unintended victim is injured, but does not die, the defendant may be found guilty of assault, but may not be found guilty of attempted murder.

The court of appeal has held that if both the intended victim is killed and an unintended victim is injured or killed by a defendant's single act, the defendant's specific intent to kill the intended victim applies only to the intended victim, and may not be ``transferred,'' under the transferred intent doctrine, to the injuries or death of the unintended victim. The California Supreme Court has cast doubt on the validity of that decision, but it has stopped short of expressing whether the decision should be overruled. Case law has traditionally held that the transferred intent doctrine also applies in prosecutions for assault, and a jury instruction in that regard has been in existence for years. However, more recently, the Fourth Appellate District, Division Two, has held that the doctrine of transferred intent does not apply in simple assault cases, because simple assault is a general intent crime. Under this Fourth District view, because it is not necessary that the defendant intended to injure a particular person, it is not necessary to transfer that intent from one person to another. That court did not address the issue, however, of whether the transferred intent doctrine would apply in a prosecution for assault with intent to kill.

The doctrine of transferred intent is not limited to use by the prosecution. Rather, the defense may use the doctrine if the defendant acted in self-defense and killed or injured another person unintentionally. In this situation, the defendant's intent to self-defend is ``transferred'' to an intent to self-defend against the unintended victim, and the jury may be so instructed.

Criminal Negligence

Negligence can be a criminally culpable mental state. Criminal negligence implies a lack of attention to the nature or probable consequences of an act or omission which falls below that exhibited by a reasonable, prudent person in the course of his or her affairs. Unlike the negligence sufficient for civil liability, criminal negligence requires a ``gross'' departure from the required standard of care. The conduct in question must be aggravated or reckless and must show an indifference to the consequences of the action. Such an indifference requires a showing of actual or imputed knowledge that the act tends to endanger another's life. The act must be one that creates a great risk of death or bodily harm to another and which has knowable and apparent potentialities for such harm.

The most common example of a crime involving criminal negligence is involuntary manslaughter, which requires a showing that the act was committed without due caution and circumspection. Another example is Penal Code Section 273a , which imposes criminal culpability upon anyone who willfully causes or permits a child in his or her custody to be placed in a situation that endangers the child's physical being or health.

Strict Liability

Certain kinds of regulatory offenses do not require the showing of a mental state and are punishable despite the absence of criminal intent. These offenses are primarily concerned with protection of the public health, safety, and welfare, rather than punishment and correction of the offenders. Examples of strict liability crimes include: (1) Contributing to the delinquency of a minor by allowing the minor to register at a hotel as the wife of a sailor after a perfunctory inquiry; (2) The failure to maintain sanitary conditions in a nursing home; (3) The mislabeling of drugs; .(4) The failure of an apartment owner to comply with local fire prevention ordinances; and (5) Failure to file California personal income tax returns. Because strict liability offenses are regulatory in nature, conviction results in either a short jail sentence or a small fine, rather than a prison term.

Lack of Criminal Act or Omission

To prove that the accused is guilty of a crime, the prosecution must show a joint operation of a particular intent or mental state and a particular act. Absent a criminal act, an intent to commit a crime cannot give rise to criminal culpability. The act and intent must occur concurrently. The requirement of the occurrence of a criminal act may be satisfied either by an affirmative act or by an omission or failure to act, depending upon the particular law in issue. A failure to act is considered to be a criminally culpable act when a duty to act has been undertaken and then abandoned, or when a duty imposed by statute has not been performed.

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In summary, motive is always relevant. It is an element of some crimes and should always be provided to a jury. The election not to do so runs the risk of a hung jury or acquittal. Intent, of whatever sort, is always an element of a crime and must be proven beyond a reasonable doubt. By this proof, the mensa rea of the defendant, as well as the nature of the crime, i.e., malum in se or malum prohibita, is also proven. Law enforcement investigators seeking criminal complaints against persons must carefully consider these issues before presenting the possible allegations to the prosecutor. Nail motive and the prosecutor will be persuaded to issue the complaint and he can persuade the jury to convict.