GCA Title 9, Chapter 4
9 GCACRIMES AND CORRECTIONS
CH. 4 GENERAL PRINCIPLES OF LIABILITY
CHAPTER 4 GENERAL PRINCIPLES OF LIABILITY
COMMENT: Sections 4.10 through 4.50 are designed to express basic concepts of criminal liability, to define these concepts with more precision than former law and to simplify the Mens Rea requirements of crime. §§ 4.55 through 4.75 codify the various aspects of the law treating the liability of one person for an offense when the offense is committed by another. Penal Code, Section 7, defines six kinds of A intent @ . This, and other portions of the existing Penal Code, leave much to be decided by the court and given to the jury as instructions. The Model Penal Code, however, attempts to make these concepts statutory and to clarify the language as has been developed by case law. The Model Penal Code has been adopted without substantial change in New York and Illinois and it is the pattern upon which Chapter 4 of this Code is based. The draft does not change existing California Law but attempts to restate it in more understandable terms. See California Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project 11-12 (Tent. Draft No. 1 September 1967).
§ 4.10. Conduct to Include Voluntary Act or Omission.
A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
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SOURCE: Guam PC, § 20; M.P.C. § 2.21 (1); *Cal. § 400 (T.D. 1, 1967); Cal. § 400 (1971); Mass. ch. 263 § 15; N.J. § 2C:2-1(A). CROSS-REFERENCES: § 7.61 of this Code. COMMENT: This Section expands the requirements of an act as appearing in the Guam Penal Code, § 20, by the inclusion of an omission within the definition of act. (See Witkin, Cal. Crimes, 71, for the definition of omission as a A negative act @ .) This Section conforms closely to § 4-1 of the Illinois Rev. Crim. Code of 1961. This Section uses the phrase A conduct which include a voluntary act. @ This is important in order to make it plain that an act alone may have significance only in the context of the actor’s relevant conduct. Shooting a pistol, for example, is an act which, standing alone, lacks significance. However, shooting a pistol at a person with intent to kill him is an act which has its own separate and peculiarly identifiable significance because of the conduct of which it is part. The characterization of the act as a A voluntary act @ is relevant to the defense of unconsciousness contained in Guam PC § 26(6), and to the defense of A duress. @ Conduct resulting from coercion is dealt with as a specific defense under this Code.
§ 4.15. Voluntary Act Defined.
(a) A voluntary act is one performed consciously as a result of effort or determination. (b) Possession is a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of his control of it for sufficient time to have been able to terminate his control. SOURCE: Guam PC, § 26(6); M.P.C. § 2.01 (2) (4); *Cal. § 401 (T.D. 1 1967); Cal. § 405 (1971); Mass ch. 263, § 15; N.J. § 2C:2-1 (A), (C). This Section again reflects Guam PC § 26(6) and decisional law. See People vs. Baker, 42 Cal. 2d 550, 268 P.2D 705, (1954); People vs. Gorshen , 51 Cal. 2d 716, 336 P.2d 492 (1959); People vs. Rorerman, 189 Cal. App. 2d 150, 10 Cal. Reptr. 870 (1961). Also in accord with existing law, possession is defined as a voluntary act under the circumstances set fort in § 4.15(b). The definition is extremely important with reference to the Uniform Controlled Substances Act. See People vs. Davis 231 Cal. 2d 180, 186; 41 Cal. Rep. 617 (1964). People vs. Murray, 198 Cal. App. 2d 805, 18 Cal. Rptr. 280 (1962).
§ 4.20. Liability for Omission Limited.
A person is not guilty of an offense if his liability is based solely on an omission unless the law defining the offense expressly so provides, or a duty to perform the act is otherwise imposed by law. SOURCE: M.P.C. § 2.01 (3); *Cal. § 402 (T.D.1 1967); Cal. § 405 (B) (2) 1971; Mass. ch. 263, § 15; N.J. § 2C:2-1 (H).
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CROSS-REFERENCES: GC § 1313 -failure to appear in answer to subpoena. § 1085-failure to file financial disclosure report. § 19516.1 Govt. Code-failure file tax return, 16 GCA § 3501, Vehicle Code A hit and run. @ See also Child Abuse Laws. § 31.35 of this Code relative to failure to report child abuse. COMMENT: Section 4.20 restates decisional law and common law to the effect that an omission is not a criminal act unless specifically made a criminal act, such as failure to file tax returns, failure to remain at the scene of an accident, and failure by certain persons to report child abuse. There are many others. A legal duty to act may arise from other legal obligations. In People vs. Montecino , 68 Cal. App. 2d 85, 152 Pac. 2d 5 (1944), a conviction of involuntary manslaughter was sustained where is bedridden patient died due to the neglect of the person engaged to care for her.
§ 4.25. Culpability.
Except as provided in § 4.45, a person is not guilty of a crime unless he acts intentionally, knowingly, recklessly or with criminal negligence, as the law may require, with respect to the conduct, the result thereof or the attendant circumstances which constitute the material elements of the crime. SOURCE: Guam PC § 20; M.P.C. § 2.02 (1); *Cal. § 403 (T.D.1 1967); Cal. §§ 400405 (1971); Mass. ch. 263 § 17; N.J. 2C:2-2(a). CROSS-REFERENCES: § 4.45 of this Code. COMMENT: This Section, adopted from California (California Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project 13-14 (Tentative Draft 1, Sept. 1967), simplifies the Model Penal Code terminology so as to reflect existing usage.
§ 4.30. Culpability Defined.
(a) A person acts intentionally, or with intent, with respect to his conduct or to a result thereof when it is his conscious purpose to engage in the conduct or cause the result. (b) A person acts knowingly, or with knowledge, with respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is practically certain to cause the result. (c) A person acts recklessly, or is reckless, with respect to attendant circumstances or the result of his conduct when he acts in awareness of a substantial risk that the circumstances exist or that his conduct will cause the result and his disregard is unjustifiable and constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.
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CH. 4 GENERAL PRINCIPLES OF LIABILITY
(d) A person acts with criminal negligence, or is criminally negligent, with respect to attendant circumstances or the result of his conduct when he should be aware of a substantial and unjustifiable risk that the circumstances exist or that his conduct will cause the result and his failure to be aware of the risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation. SOURCE: Guam PC § 7 (1)-(5); See also § 188. Model Penal Code § 2.02 (2); *Cal. § 404 (T.D.1 1967); Cal. § 405 (1971); Mass. ch. 263, § 16; N.J. § 2C:2-2B. CROSS-REFERENCES: § 4.25 of this Code; § 43.50 receiving stolen property; § 31.15 incest. COURT DECISIONS: C.A.9 1982 In the prosecution for murder under the law of Guam, evidence, including that police officer whom defendant was accused of shooting had fired first at defendant, was sufficient to entitle defendant to instruction on manslaughter. People v. Fejeran, 687 F.2d 302 (1982); reversing Appellate Division. COMMENT: § 4.30 (a) defines intentionally and with intent to reflect current decisional law and, contrary to the Model Penal Code, retains these terms because they are used almost exclusively in other Guam statutes. The terms knowingly or with knowledge are currently used in many statutes: e.g., … receiving stolen property (§ 43.50 of this Code); incest (§ 31.15 of this Code). There has been little to distinguish intent from knowledge. People vs. McCree, 128 Cal. App. 2d 196, 275 Pac.2d 95 (1954) states that these two terms are synonymous. However, this Section makes clear that there is a difference and that difference is stated. § 4.30(c) has a concept of recklessness as an element of criminal liability, apart from its use in the Vehicle Code. Such a concept was not subject to statutory definition in the United States before the enactment of the Illinois Revised Criminal Code of 1961 and the New York Revised Penal Code of 1967. Recklessness, however, is subsumed in almost every definition of implied malice of forethought. In a few cases it has received express recognition. (See People vs. Hubbard, 64 Cal. App. 27, 220 Pac. 315). If recklessness is an element of murder, the law ought to say without translating the concept into archaic terms such as A abandoned and malignant heart. @ Some confusion in decisions exists in which recklessness is equated with intention. These two concepts are different in that intention implies consequences desired while recklessness implies consequences foreseen or foreseeable but not desired or not the subject of proper concern by the actor. Mere knowledge of the possibility is not enough; probability is required unless the conduct engaged in has no social utility. This Subsection differs from the Model Penal Code in that this Subsection attempts to make plain that the actor must be aware that his conduct does create a risk (a subjective test) but it leaves the judgment as to the unjustifiability of his conduct to the determination of the trier of fact by an application of an objective standard. Note that the risk is A substantial. @
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Subsection (d) defines criminal negligence for the first time on Guam. The difference between this standard and the previous three is clear: negligence does not involve awareness. Rather, it is descriptive of inadvertent risk-creation in circumstances where the actor should be aware of the risk he is taking. The standard by which the actor’s conduct is to be weighed is the objective standard of A gross deviation from the standard of care that a reasonable person would exercise. @ Thus, criminal negligence is clearly separated from ordinary negligence, the latter not being the subject of criminal liability.
§ 4.35. Culpability Applied to Elements of Offense.
(a) If the definition of an offense prescribes a culpable mental state but does not specify the conduct, attendant circumstances or result to which it applies, the prescribed culpable mental state shall apply to each such material element. (b) If the definition of a crime prescribes criminal negligence as the culpable mental state, it is also established if a person acts intentionally, knowingly or recklessly. When recklessness suffices to establish a culpable mental state, it is also established if a person acts intentionally or knowingly. When acting knowingly suffices to establish a culpable mental state, it is also established if a person acts intentionally. (c) Knowledge that conduct constitutes an offense, or knowledge of the existence, meaning, or application of the statute defining an offense, is not an element of an offense unless the statue clearly so provides. SOURCE: Guam § 7(5); M.P.C. § 2.02 (4)(5)(9); *Cal. § 405 (T.D.1 (1967); Mass. ch. 263, § 17; N.J. § 2C:2-2(c)(3). CROSS-REFERENCES: See Guam PC § 449a & 450; See also Remington & Helhatb, The Mental Element in Crime a Legislative Problem (1962) Wis. L. Reg. before 666. §§ 4.25 and 4.30 of this Code. COMMENT: Subsection (a) tends to eliminate previous ambiguity: a particular law made forbidden general conduct, continuing several elements, a crime when done willfully or knowingly or recklessly. Under former law it was unclear whether all, or only part of, the elements of the offense is subject to the required culpable mental state. This Subsection specifically states that the appropriate mental state is applicable to all material elements of the crime unless the statute in question specifically provides the different result. Subsection (b) establishes that the mental state defined in § 430, Subsections (a) through (d), constitute a hierarchy of mental states and that the lowest mental state for which one can be culpable is included within the next three; that the third lowest culpable state, recklessness, is included within the first two; that knowledge is included with intent. Subsection (c) is a restatement of Guam PC § 7(5) which states that knowledge constitutes an assent. Knowledge of the law defining the assent is not an element of the
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crime unless specifically provided. This is the law on Guam and is not changed by this Code.
§ 4.40. Culpable Mental State Generally Required.
Except as provided in § 4.45, if the definition of a crime does not expressly prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts intentionally, knowingly or recklessly. SOURCE: Guam PC, § 20; M.P.C. § 2.02; *Cal. § 406 (T.D.1 1967); Mass. ch. 263, § 17; N.J. § 2C:2-2 (c) (3). CROSS-REFERENCES: § 4.45 of this Code; §§ 4.25-4.35; this Code. COMMENT: The purpose of this Section is to make clear that culpable mental state is required even where no mention of the same is made in the appropriate law creating the crime. Further, this Section makes clear that, where there is such an absence of stated culpability, the only culpability that may be applied to that Section is where the act was intentional, knowing, or reckless. Neither criminal negligence nor ordinary negligence are to be assumed in the absence of the specific statement to that effect.
§ 4.45. Same: When Inapplicable.
The culpable mental state requirements of § 4.25 and § 4.40 do not apply if the offense is a violation or if the law defining the offense clearly indicates a purpose to dispense with any culpable mental state requirement. SOURCE: M.P.C. § 2.05; *Cal. § 407 (T.D.1 1967); Mass. ch. 263, § 17; N.J. § 2C:22C3. CROSS-REFERENCES: § 1.18 (f); this Code; § 4.25 & 4.40; this Code; § 4.45 & 4.60 of this Code. COMMENT: This is a new Section and expresses new law for Guam. The culpable mental state is dispensed with where the offense is a violation, thus is not a crime pursuant