Criminal Law Outline for the California Bar Exam

Elements of a crime

1. Actus Reus – a voluntary act or omission where there is a duty to act.

   1. Act (any bodily movement) must be voluntary:

      1. Some bodily movements don’t qualify for crim liability:

         1. Conduct not product of your own volition (i.e. reflexive acts such as seizure)

         2. Acts performed while unconscious or asleep

   2. Omission – Duty to act (statute, conduct, relationship, voluntary assumed, conduct created peril)

2. Mens Rea –

   1. Specific Intent Crimes – BFF REAL SCAM – qualify for additional defenses (voluntary intox and mistake of fact)

      1. Include: Burglary, false pretenses, forgery, robbery, embezzlement, attempt, larceny, solicitation, assault (intent to cause battery), murder (1^st degree), conspiracy

   2. General Intent Crimes – BARK Fi – awareness of all factors constituting a crime

      1. Jury may infer req’d GI from the doing of the act.

      2. Transferred Intent – D intends the harm that is actually caused, but to a different victim or object (homicide, battery and arson)

      3. Include: battery, rape, kidnapping, assault (intent to frighten), and false imprisonment.

   3. Malice Crimes – Common law murder and arson.

      1. Requires reckless disregard of obvious or high risk that particular harmful result will occur.

   4. Strict Liability Crimes – Stat rape, selling liq to minors, bigamy – mental state irrelevant (mistake of fact not a defense)

      1. SL or public welfare offense – does not require awareness of all factors constituting the crime.

      2. How to identify: if crime is in administrative, morality, or regulatory area and statute does not contain adverbs (i.e. knowingly, willfully, intentionally) → SL crime

      3. Immunity – If statute intended to protect members of a limited class, members of that class are presumed to have intended to be immune from liability.

3. Causation – Cause in fact, and proximate cause.

Accomplice Liability

1. Definition: One who, with intent that the crime be committed, aids, counsels or encourages the principal before or during commission of the crime.

2. Act – Actively aid, abet, or counsel the commission of a crime.

   1. Presence alone is never enough – need active involvement

3. Intent – specific intent to aid or encourage the crime.

4. Liability – The crime itself and all other foreseeable crimes to same extent as principal.

5. Exclusions from liability

   1. Person protected by statute – cannot be accomplice.

   2. Withdrawal – Must be before crime becomes unstoppable.

      1. If w/d b/4 crime committed, cannot be held guilty as accomplice.

      2. Repudiation – sufficient w/d for mere encouragement

      3. Attempt to neutralize assistance – req’d if participation went beyond mere encouragement.

6. Accessory after the fact: Person aiding another escape after knowing he committed a crime.

   1. Liable for a lesser crime, not for the crime itself (obstruction of justice)

Inchoate Offenses

1. Solicitation

   1. Definition: Inciting, urging, counseling, or commanding another to commit a crime, w/ the intent that the person solicited commit the crime.

      1. Crime of solicitation ends once you ask

   2. Act – Solicitation of another to commit a crime

   3. Intent –Specific intent that person solicited will commit the crime.

   4. Merger –

      1. Merges with conspiracy if other person agrees to commit crime

      2. Merges with completed crime, if crime is carried out

   5. Liability: For solicitation, conspiracy or the completed crime.

   6. Defenses

      1. Refusal of the solicitee is NOT a defense.

      2. No defense of withdrawal

      3. Is a defense that solicitor cannot be found guilty of crime b/c of legislative intent to exempt him/her.

2. Conspiracy – need 2 guilty minds

   1. Definition:intent to enter into an agreement w/2 or more persons for an unlawful objective and some overt act is performed in furtherance of the unlawful objective

      1. Agreement: can exist by express words or it can be implied by conduct – co-cons need not meet or even know each other exist; so long as they are working toward a common unlawful goal – BUT Specific Intent req.

      2. With Another Party: majority rule requires all conspirators to actually agree to commit the unlawful objective – an agreement w/an undercover PO who only feigns agreement is NOT a conspiracy

         1. Minority Rule: the unilateral conspiracy rule – provides that one guilty mind is enough if the mind believed the other party was actually agreeing

         2. Wharton’s Rule: if the target crime requires 2 parties (e.g. dueling), then there is no conspiracy to duel unless there are three or more parties

      3. For an Unlawful Objective – the goal of the conspiracy must be a crime or fraud – Specific Intent Req.

      4. Overt Act – at CL, only the agreement was req. – today, most req. that one of the conspirators perform an overt act in furtherance of the unlawful purpose (buying supplies, planning)

   2. Liability: Each conspirator is liable ALL crimes of co-C’s that were committed in furtherance of the conspiracy and were foreseeable.

   3. Merger: Does not merge with the completed crime.

   4. Defenses

      1. Impossibility is not a defense.

      2. Withdrawal – D must timely communicate to ALL other conspirators while target crime still has an opp. to be abandoned that D is no longer a participant – NOT a defense for conspiracy itself.

         1. No liability for further crimes of conspiracy.

         2. NEED NOT THWART

   5. Effect of acquittal: If D is charged and tried and all others have been acquitted D cannot be convicted.

   6. Termination: Conspiracy terminates upon completion of wrongful objective.

3. Attempt

   1. Definition – D is guilty of attempt if D commits an act of perpetration w/the intent to commit the intended crime that falls short of completing the crime.

      1. Act of Perpetration – D must do more than merely prepare to commit the crime; the D must take a substantial step (MPC) toward its commission or must come dangerously close (CL) to completing the intended crime

      2. W/Intent to Commit the Crime – D must have the specific intent to commit the target crime

   2. Defenses:

      1. Merger – Attempt merges w/completed crime so D who actually commits the intended crime cannot be convicted and punished for both attempt and the intended crime

      2. Factual impossibility is NOT a defense (gun had no bullet)

      3. Legal impossibility is a defense (activity was in fact legal)

      4. Abandonment is NOT a defense if D had the intent and committed an overt act.

Crimes against the Person

1. Homicide

   1. Murder – Unlawful killing of a human being, caused by D, w/malice aforethought

      1. Caused by D

         1. D acted alone to cause death

         2. D’s omission caused death

         3. Act of a third party contributed to cause death (VL via solicits, conspiracy, accomplice, FMR; must be foreseeable)

      2. Malice

         1. Intent to kill

            1. D’s words

            2. Deadly Weapon Doctrine

         2. Intent to inflict great bodily harm.

         3. Depraved heart – reckless disregard for unjustifiably high risk to human life

         4. FMR – Intent to commit a felony –

   2. Felony Murder – death results during the perpetration an inherently dangerous felony + the death was a foreseeable result of the commission of the felony

      1. During the Perpetration

         1. From attempt until felon reaches temp safety

      2. Inherently Dangerous Felony – BARRK (burglary, arson, rape, robbery, and kidnapping)

         1. Minority Rule – some states include non-dangerous felonies committed in a dangerous manner

      3. Felony must be independent of the act that caused death

      4. Defenses:

         1. D has a defense to the underlying felony – a defense that negates an element of the underlying offense will also be a defense to FM

         2. The death was not a foreseeable result of the felony (prox cause)

         3. D had reached point of temporary safety (deaths caused afterwards are not FM)

         4. Death of co-felon resulted from resistance by V or PO

         5. Minority Agency Theory→ D not liable for FM when innocent non-felon party is killed by non-felon unless death caused by D or his “agent.” (store owner shoot as felon and hits customer)

   3. Statutory Degrees of Murder

      1. First Degree Murder

         1. Premeditated and Deliberate Intent to kill

            1. Premeditated – D had time (even a few seconds) to think about killing the V before doing so

            2. Deliberate – D acted in a calm and cool frame of mind (“cold blooded”) – NOTE – can be negated if D was angry, excited, suffering

      2. FMR – a murder that satisfies the FMR elements AND is based on one of the enumerated felonies in the state’s 1^st degree murder statute

      3. Second Degree Murder – all other murders that do not qualify as first degree murder – intentional, unjustified killing with malice aforethought

         1. Intent to Commit Great Bodily Harm Murder

         2. Depraved Heart Murder

   4. Voluntary Manslaughter– Killing in the heat of passion.

      1. VM – a killing that would be murder but for existence of adequate provocation.

      2. Provocation is adequate if: (must meet all to reduce to VM)

         1. Provocation that would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self control (i.e finding spouse in bed w/ another) (objective)

         2. D in fact provoked (subjective)

         3. No sufficient time to cool off (objective)

         4. D in fact did not cool off (subjective)

   5. Involuntary Manslaughter

      1. Intent to Inflict Slight Bodily Injury – D kills V w/no intent to kill or seriously injure, but did have intent to inflict some slight bodily injury – typically a non-aggravated (no weapon) battery or assault that causes the death of the V

      2. Criminal Negligence – D kills V while acting in a more than ordinary negligent manner, but conduct does not present a high enough risk of death for depraved heart – D’s conduct is a gross deviation from the standard of care that a reasonable person would observe

      3. Misdemeanor Manslaughter – D kills while committing a non-inherently dangerous crime (i.e. insufficient for FMR) or a malum in se crime (inherently wrongful)

2. Battery – Unlawful application of force resulting in bodily injury or offensive touching. (simple battery = misdemeanor) – need not be intentional, need not be applied directly

   1. Aggravated battery – punishable as felony (battery resulting in serious bodily harm; battery w/ deadly weapon, battery of child, woman or police officer)

3. Assault – intent to create apprehension in V of imminent bodily harm

   1. Assault as a threat = GI crime (i.e. practical joke)

4. Assault/Attempted Battery– intent to commit a battery (try to hit me and I duck); SI crime;

5. FalseImprisonment – Unlawful confinement without valid consent.

6. Rape – Unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent.

   1. The slightest penetration completes the crime of rape

   2. Statutory Rape – Sexual intercourse w/an underage female

7. Kidnapping – Unlawful confinement (w/o consent) + movement or concealment in a “secret place.”

8. Mayhem – Dismemberment or disablement of bodily part (CL)

   1. MT– treat mayhem as form of aggravated battery

Crimes against personal property – theft

1. Larceny – the (1) tresspassory, (2) taking and carrying away of the (3) personal property of another (4) w/the intent to permanently deprive

   1. Tresspassory – D must take possession of V’s property w/o V’s consent – for consent to exist, V must consent before the taking

   2. Taking and Carrying Away – D must move prop as part of attempt to take possession – slight movement is enough

   3. Personal Property of Another – larceny is a crime against possession, not ownership – an owner can commit larceny over prop he owns if the owner gives possession of it to the V

   4. W/Intent to Permanently Deprive – D must have the specific intent to keep the property and intent must exist at time of taking (if D later decides to keep, not larceny)

      1. Continued Trespass Doctrine – if initial taking was wrongful, and later form intent to steal, larceny

      2. D Takes Then Abandons Prop – if D’s abandonment of V’s prop created a high risk of loss, larceny

      3. D Takes W/Intent to Return – if D intends to rightfully borrow the item and return it later, this may lead to tort liability, but it is not larceny

   5. NOT CL larceny if you take prop believing it’s yours/you had a right to it or if you take prop as repayment of a debt.

2. Larceny by Trick– there is consent but induced by fraud or misrep – NOTE: if the V only intends to convey possession to the D, it is larceny by trick, if they intend to convey title, it is false pretenses

3. False Pretenses – Obtaining title to personal property of another by an intentionally false statement – look for TRANSFER of $$$$ b/n 2 parties

   1. Acquisition by Title – the V must intend to pass title (ownership) not just possession

   2. False Representation – V is falsely induced into the transaction – usually pays money for something as a result

4. Embezzlement – (1) Fraudulent conversion of (2) personal property of another (3) by a person in rightful possession (held pursuant to trust agreement) (4) w/intent to defraud.

   1. Fraudulent Conversion – D must deal w/V’s prop in some manner inconsistent w/V’s grant of possession of the prop to the D

   2. By One in Rightful Possession – the V, must first voluntarily give the D rightful possession of the property that the D later fraudulently converts

   3. Intent to restore – if D intends to restore exact property taken → NOT embezzlement

   4. Distinguish Larceny – in embezzlement, the D misappropriates property while it is in his rightful possession, in larceny the D misappropriates property not in his possession

5. Forgery – making or altering a writing w/ apparent legal significance so that it is false (i.e. representing that it is something it’s not) with intent to defraud

6. Receiving stolen goods – Receiving possession and control of stolen personal property known to have been obtained in a manner constituting a criminal offense, by another person, w/ the intent to permanently deprive the owner of his interest in it.

   1. Prop must be stolen at time D receives it

   2. If police have recovered prop and use it w/ owner’s permission→ not guilty of receipt of stolen goods (but can be convicted of attempted receipt of stolen prop)

Crimes against person and personal property

1. Robbery – Larceny + assault – (1) wrongful taking of another’s property, (2) from his person or presence, (3) by force or threat of immediate death/physical injury, (4) w/intent to permanently deprive.

   1. From V’s Person or Presence – the D must take the property from the V’s person or from the V’s immediate vicinity

   2. By Force or Threat of Force of Immediate Bodily Harm – the D must use force or threaten immediate bodily harm to accomplish the taking

      1. Immediate Bodily Harm – threat of bodily harm – threat of future harm, or immediate or later bodily harm are not sufficient

   3. B/c larceny is lesser included offense of rob, cannot be convicted of both.

2. Extortion (blackmail) – Obtaining property by means of threats to do harm or expose information.

   1. Not req. to take in V’s presence, threats of future harm suffice

Crimes against Real Property

1. Burglary – elements

   1. Tresspassory – D’s entry into structure must be w/o consent

   2. Breaking – actual force – physical movement of a door or window, threat, fraud, etc…

      1. Door cannot be wide open

      2. Dressing up as cable repairman will qualify as constructive breaking

   3. Entering – as long as any part of D’s body enters

   4. Dwelling of another – not a barn, garage or commercial structure (Modern Rule allows it to be any structure)

   5. At nighttime

   6. W/intent to commit a felony therein (intent at time of entry)

2. Arson – the burning of a protected structure of another w/malice

   1. Burning – must be some charring of some part of structure caused by fire – charring of furniture, explosions, smoke damage do not count

   2. Protected Structure – at CL, had to be dwelling of another, today states protect all structures

      1. Malicious– intentional or w/ reckless disregard of obvious risk

   3. of another – can’t be committed of arson for burning own dwelling

   4. Malice – (1) intent to burn the structure, or (2) w/knowledge of the extremely high risk of the structure burning

DEFENSES – NO Criminal Capacity

1. Insanity– a defense to all crimes (even SL)

   1. D must raise the insanity issue

   2. 4 tests: D entitled to acquittal if:

      1. M’Naughten/Right-Wrong Test – mental disease/defect that caused D to either (1) not know that his act would be wrong, or (2) not understand the nature and quality of his action.

      2. Irresistible Impulse – b/c of mental disease, D unable to control actions or conform his conduct to the law

      3. Durham – crime was a product of mental illness (crime would not have been committed but-for the disease)

      4. ALI/MPC (modern trend) – D entitled to acquittal if he had a mental disease/defect, and, as a result, lacked the substantial capacity to either: (1) appreciate wrongfulness of his conduct, or (2) conform his conduct to the requirements of law.

   3. Diminished capacity(some states) – Due to mental disease/defect short of insanity, D did not have mental state req’d for crime charged.

   4. Mental condition during proceedings

      1. Under due process clause, D may not be tried, convicted or sentenced if, as a result of mental disease/defect, he is unable: (1) to understand nature of the proceedings, or (2) to assist in preparation of his defense)

      2. Capital Punishment – D must understand purpose of his punishment (otherwise cannot be executed)

2. Voluntary Intoxication– self induced intoxication

   1. Defense to crimes that require purpose (intent) or knowledge (i.e specific intent crimes) unless so excessive and continuous that leads to actual insanity

      1. No defense to non-intent crimes (SL) or general criminal intent or malice

3. Involuntary Intoxication

   1. Involunt Intox – results from taking of intoxicating substance w/o knowledge of its nature, under direct duress, or pursuant to medical advice while unaware of the intoxicating effect.

   2. Defense to all crimes including strict liability.

   3. May be treated as mental illness and D entitled to acquittal if meet jxd’s insanity test  DISCUSS INSANITY

4. Infancy – <7 (no liability); <14 (rebuttable presumption of no liability)

Exculpation

1. Self-defense – D may use deadly force to protect against an imminent deadly attack – deadly force must be reasonable and necessary to repel the attacker (objective, subjective test)

   1. Used by Victim

      1. Non-deadly Force

         1. A victim may use non-deadly force anytime V reasonably believes force is about to be used against them.

      2. Deadly Force

         1. A person may use deadly force if (1) she is without fault, (2) confronted w/ “unlawful force,” and (3) threatened w/ imminent death or great bodily harm.

         2. Generally, no duty to retreat, but acc’d to minority rule, V must retreat if can do so safely, unless:

            1. V is in own home, V of rape or robbery, V making a lawful arrest

      3. Imperfect Self Defense – unreasonably, but honestly believed in the necessity of responding w/deadly force – guilty of manslaughter

   2. Used by Original Aggressor– not available unless withdraws AND communicates w/d to original V OR other party makes minor fight into major altercation.

      1. Must retreat if can do so safely

2. Defense of Others

   1. D has right to defend others if D reasonably believes that person assisted has legal right to use force in own defense.

      1. Majority Rule – D may claim defense of another if the V reasonably appears to have the right to use deadly force, even if V does not actually have that right and even if V was the initial aggressor

      2. Minority Rule – D can use no more force than the person he is defending – V must have had right

3. Defense of dwelling: Non deadly force to prevent or terminate unlawful entry or attack on dwelling. Deadly force may be used to protect people on property

4. Defense of property: NO deadly force allowed

   1. Non deadly force to defend prop only if a request to refrain would not suffice

   2. Non deadly force to regain if in immediate pursuit.

5. Crime Prevention:

   1. Non-deadly to prevent felony or serious breach of the peace.

   2. Deadly force to prevent dangerous felony involving risk to human life.

   3. Must show crime was in fact committed and reasonable grounds to believe the person attacked was the person who committed the crime

6. Effectuate Arrest:

   1. Police:

      1. Non-deadly force allowed if reasonably necessary to effectuate arrest.

      2. Deadly force to prevent escape of dangerous felon who threatens human life.

   2. Private Person

      1. Non-deadly: crime in fact committed and reasonable grounds to believe person arrested has in fact committed the crime

      2. Deadly: only to prevent escape of person who actually committed felony and who threatens human life (no mistake allowed)

7. Resisting unlawful arrest:

   1. If known officer, non-deadly force only.

   2. If not a known officer, deadly force if necessary.

8. Necessity: Reasonable belief, necessary to avoid imminent and greater harm to society.

   1. D may not be at fault in creating the situation.

   2. Deadly force never justified for protecting property.

9. Mistake of Fact – D thought circumstances were different – i.e. thought gun was a toy – defense only when it negates intent

   1. Specific intent crimes – any mistake, reasonable or not.

   2. General intent crimes – reasonable mistakes

   3. Strict liability – Never a defense

10. Mistake of law – D did not know conduct was illegal – Generally not a defense.

    1. Exception (statute not published, judicial decision, negative specific intent)

11. Duress – Defense to crime other than homicide if D reasonably believed another would imminently inflict death or great bodily harm to him or family.

    1. NOT A DEFENSE TO MURDER

12. Consent – Not a defense unless lack of consent is element of crime.

13. Entrapment – design originates with police / D not predisposed. (cannot be entrapped by a private citizen)