Prelims: The Peanut Case

The Stud conducted his second preliminary hearing today. In fact, the judge specifically requested that the supervising Deputy District Attorney let the Stud conduct one. The testifying officer is actually a partner of the officer who testified at the Stud's first preliminary hearing.

This one involved a combination of Cal. Penal Code § 664 and Cal. Health & Safety Code § 11350. In other words, "attempted possession", specifically of rock cocaine in the form of cocaine base. This is a little different from straight possession, possession for sale, or sale, because no actual drug was transacted.

Now, at a preliminary hearing, typically the law is very much on the side of the prosecutor. All that is required at a preliminary hearing is for the prosecution to establish "probable cause", which is a lower standard than "reasonable doubt", the standard in effect in a criminal jury trial. This is similar to the lowered standard by which Federal grand juries indict federal criminal defendants.

Still, the Deputy Public Defender is tasked with the unenviable job of doing his best to win. Some DPDs, especially "green" ones, tend to object to everything in trying to be obstructionist (although there are rumors that this tactic has been adopted by many DPDs in the County of Los Angeles because that is how one of their trainers advocate their job), and even pursue lines of questioning at the preliminary hearing that would perhaps be more appropriate at trial.

In this case, the DPD argued that because the ersatz "nickel" of rock was never recovered from the defendant, there was no possession, and that in any case because the dope was fake, there could not have been possession. (First year students will recall this to be "impossibility", a point raised when the Stud chatted with Professor Goldman.)

Nevertheless, the charge was "attempted possession", so it was sufficient to show that the defendant actually paid money in exchange for the item (which the Stud established by a follow-on question in redirect), as it showed intent to possess and an overt act or substantial step. (First year students, look back to the "attempt" section of your Criminal Law outline.)

The result: The defendant was held to answer.

Track record: 2-0.

Note: The reason the prosecution referred to this as "the peanut case" is an exercise left to the law student.

Outline - Criminal Law - IX - Attempt

Criminal Law (2005 Fall)

IX. ATTEMPT

1. Intent
   1. Specific Intent – Must have specific intent regardless of the intent requirement for the completed crime (Note: Under this standard, it’s impossible to be guilty of attempted involuntary manslaughter).
      1. Smallwood – HIV-positive defendant convicted of rape not guilty of attempted murder where he lacked specific intent.
      2. Hinkhouse – HIV-positive defendant who actively concealed condition from consensual sex partners liable for attempted murder.
   2. MPC § 5.01 – Regular intent (for the offense)
2. Act – How much is enough?
   1. Dangerous Proximity (attempt vs. preparation) [Rizzo – Defendant was stopped before robbing intended victim who was nowhere in sight. No liability because not in dangerous proximity.]
   2. Equivocality Test/Res Ipsa Loquitur (hardest to prove)
   3. MPC (easiest to prove)
      1. General Rule – Substantial step, corroborative of normal intent for offense
      2. Abandonment (renunciation) must be voluntary and complete.
      3. McQuirter (Alabama, 1953) – Black man hanging around near white woman convicted of attempted assault with intent to rape.
      4. Jackson – Under MPC, defendants who gave up robbery twice found guilty of attempted robbery.
      5. Harper – “Bill trap” not a substantial step.
      6. Mandujano – Dealer who never came back guilty of attempt.
      7. Joyce – Dealer who didn’t open package not guilty of attempt.
3. Solicitation
   1. Davis – Defendant who merely solicited another to kill intended victim, unaccompanied by an act, not guilty of attempted murder.
   2. Church – Defendant who did just about everything to ensure successful kill guilty of solicitation and attempted murder.
   3. Many states hold solicitation is not attempt because solicitor doesn’t purpose to commit the offense personally.
   4. However, many states hold solicitation as an independent offense.
4. Impossibility
   1. Factual Impossibility
      1. E.g., picking an empty pocket.
      2. Not a defense
   2. Legal Impossibility
      1. E.g., buying stolen property that’s not actually stolen.
      2. May be a defense
   3. MPC – Circumstances as defendant believed them to be