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California Bar Summer 2014 > Crim > Flashcards

Flashcards in Crim Deck (59)
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  1. Rule: (1) Trespassory (without consent) taking; (2) and carrying away of (3) tangible personal property; (4) of another; (5) with the intent to permanently deprive the other of his interest in the property.

  2. Trespassory (without consent) taking

    1. Defendant must take possession of victim’s property without the permission of the victim.

    2. For consent to exist, the victim must consent before the taking.

  3. And carrying away of

    1. Move it from original location

    2. Slight movement is sufficient

  4. Tangible personal property

    1. Crime against possession, not ownership. An owner can commit larceny over property he owns if the owner gives possession of it to the victim.

  5. Of another

  6. With the intent to permanently deprive the other of his interest in the property




  1. Rule: (1) The fraudulent conversion; (2) of property of another; (3) by a person in lawful possession of that property.

  2. Fraudulent conversion

    1. Must deal with victim’s property in some manner inconsistent with victim’s grant of possession of the property to the defnedant

  3. Of property of another

  4. By a person in lawful possession of that property

    1. Victim must first voluntarily give the defendant rightful possession of the property that defendant

    2. Often occurs in employment situation

    3. e.g. someone who works at a restaurant works cash register; takes money out of cash register.

      1. If she takes it out of safe - that is larceny

  5. Compared to Larceny

    1. Taking is not trespassery because embezzler is in lawful possession

    2. Embezzler was in trust position, so any use inconsistent with trust position is conversion

    3. Defendant must intend to defraud the owner for an otherwise tortious conversion to become embezzlement.



False Pretenses

  1. Rule: (1) Obtaining title; (2) to the property of another; (3) by an intentional or knowing false statement of past or existing fact; (4) with the intent to defraud the other

  2. Obtaining title

    1. If defendant obtains possession, but not title, defendant is guilty of larceny by trick

    2. Victim must intend to pass title (ownership), not just possession.

  3. To the property of another

  4. By an intentional or knowing false statement of past or existing fact

    1. False or fraudulent statement must cause the owner to part with title

    2. e.g. fraudulent sale

  5. With the intent to defraud the other



Larceny by Trick

  1. Rule: (1) Obtaining possession; (2) of the property of another; (3) by an intentional or knowing false statement of past or existing fact; (4) with the intent to defraud the other

  2. e.g. isn’t this antique clock gorgeous? Made by Benjamin Franklin. If you give me your coin, I will give you the clock. But really built clock in garage.

  3. Taking occurs with the victim’s apparent consent. But the consent is negated because acquired by the defendant’s misrepresentation (“trick”).




  1. Rule: (1) Taking (2) of personal property (3) of another (4) from the other’s person or presence (5) by force or threat of force (6) with the intent to permanently deprive the other of his interest in the property

  2. Taking

  3. Of personal property

  4. Of another

  5. From the other’s person or presence

    1. D must take the property from the victim’s person or presence (wallet, purse) or from the victim’s immediate vicinity (property in the same room or house

  6. By force or threat of force of immediate bodily harm

    1. D use force or threaten immediate bodily harm to accomplish the taking (or immediate reacquire it if victim momentarily resists and retakes possession briefly).

    2. Threats of future bodily harm or immediate or later non-bodily harm are not sufficient robbery (but would be sufficient for extortion).

  7. With the intent to permanently deprive the other of his interest in the property



Receipt of Stolen Property

Rule: (1) Defendant receives possession and control of stolen property; (2) knows it was stolen by another person or that supplier did not have the right to property; (3) with intent to permanently deprive true owner of their property.



Common Law Burglary 

  1. Rule: (1) Breaking and (2) entering (3) of the protected structure (4) of another (5) with the intent to commit a felony therein.

  2. Breaking and

    1. Use of any force, however slight to gain entry without consent

    2. Majority allows some use of fraud (constructive breaking) to gain entry.

  3. Entering

    1. Entry obtained by fraud or threat is constructive breaking

    2. Some portion of D’s body (or some object defendant uses to commit the felony inside - a hook to steal a purse, etc.) must enter the structure

  4. Of the protected structure

    1. All buildings within the curtilage of the house

    2. At common law, it had to be a dwelling of another. Today, most states extend burglary to include all structures (residential, commercial, industrial).

  5. Of another

    1. Must be without consent of the rightful possessor

    2. Crime against possession so the structure must be in the rightful possession of another.

    3. Landlord can burglarize his own unit if the unit is rented to a tenant.

  6. At common law, entry had to occur at night.

    1. Today, most states have eliminated the night time requirement.

  7. With the intent to commit a felony therein

    1. Felony need never be committed

    2. Intent to commit a felony must exist at the time of the entry occurs.

    3. A later formed intent to steal after entry does not qualify.




  1. Rule: The burning of a protected structure of another with malice.

  2. Burning

    1. Burning requires charring not scorching; reducing thing to charcoal

    2. Must be charring of some part of the structure (wall, ceiling, beams, etc.) caused by fire.

    3. Charring of non-fixtures (furniture, paintings) is not sufficient.

  3. Protected Structure

    1. At common law, the structure had to be the dwelling house of another. Today, most states protect all structures (residential, industrial, commercial, etc.)

    2. Structure must be in the rightful possession of another when burned. Thus, a landlord who burns a house rented to a tenant can commit arson.

  4. With Malice

    1. D is guilty of arson if committed with

      1. Intent; or

      2. Reckless disregard

    2. Cannot be accidental

  5. Arson of one’s own dwelling is a crime by statute of the purpose is to:

    1. Collect the insurance (arson with intent to defraud an insurer) or

    2. The malicious burning of one’s own dwelling in a city or town or near other houses so as to create a danger to them (houseburning)



Criminal Assault

  1. Rule: (1) The attempt to commit a battery; (2) or intentional creation by other than mere words of a reasonable apprehension in the mind of the victim of imminent bodily harm

  2. The attempt to commit a battery; or

    1. Specific intent crime

  3. Intentional creation by other than mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm

    1. Not specific intent crime



Criminal Battery 

  1. Rule: (1) The unlawful application of direct or indirect force; (2) to the person of another; (3) resulting in; (4) bodily injury or an offensive touching.

  2. Aggravated Battery (adds one of the following elements)

    1. Use of a deadly weapon

    2. Serious bodily injury

    3. Victim is a child, woman, or police officer




Rule: Dismemberment of disablement of body part






  1. Rule: (1) Confinement of a person; (2) that also involves either (a) movement of the victim or (b) concealment of the victim in a secret place.

  2. Only some movement is required

  3. Aggravated kidnapping if purpose is:

    1. Ransom

    2. To commit other crimes

    3. Offensive (Sexual offense)

    4. Child stealing

      1. Leading, enticing, or detaining a child with the intent to keep or conceal the child from a parent or guardian

  4. False Imprisonment: no movement or concealment, but restriction of movement




  1. Common Law Rape

    1. Rule: (1) Unlawful (2) carnal knowledge; (3) of a woman; (4) by a man who is not her husband.

    2. Consent ineffective if by:

      1. Force

      2. Threat

      3. Incapable of consent

        • Drugs

        • Alcohol

        • Mental capacity

        • Unconsciousness

    3. By a man who is not her husband

      1. This was eliminated by many modern statutes

  2. Statutory Rape

    1. Rule: Sexual relations with a minor under a specified statutory age

    2. Strict liability crime

    3. All that matters is age of victim, not whether D knows victim’s age



Common Law (Second Degree) Murder

  1. Rule: the unlawful killing of a human being with malice aforethought

  2. Unlawful killing of a human being

    1. Without justification (see self defense discussion below, if applicable)

    2. Causation implicit unless defendant not the direct killer

      • Foreseeable from defendant’s conduct that victim would die

      • Defendant's act must be the proximate cause of the death

  3. With malice aforethought (list all 4 types; but only discuss ones that apply)

    1. Intent to kill

      • May be inferred from the killing

      • Intent to kill someone, even if not particular victim

    2. Intent to inflict great bodily injury

    3. Reckless indifference to the unjustifiable high risk to human life (abandoned and malignant heart); OR

    4. Felony killing (killing committed in the course of the commission of an inherently dangerous felony)

      • Felony must be inherently dangerous

        1. Burglary, arson, rape, robbery and kidnapping (BARRK)

        2. Some states might include other felonies

        3. Defense to the felony is a defense to a felony murder charge

      • Felony in the felony murder must be independent of killing

      • Vicarious Liability: If co-felon is killed by victim or police

        1. Majority view: not felony-murder

        2. Minority view: this is felony-murder

      • Proximate Cause: Felony must be the proximate cause of the homicide (the homicide must be a foreseeable result of the felony)



First Degree Murder

  1. All murder is second degree murder unless committed with premeditation and deliberation

    1. Premeditation; and

      • Premeditated: the intent to kill is premeditated if the defendant had time (even for a brief few seconds) to think about killing the victim before doing so

    2. Deliberation

      • D acted in a calm and cool frame of mind (“cold blooded”).

      • If D was angry, excited, or suffering any type of mental disturbance, that will likely lead to finding the killing was not deliberate.

    3. 1st degree felony-murder: (Felony Murder Rule)

      • A murder that satisfies the felony murder rule and is based one of the specified in the state’s first degree murder statute (usually BARRK felonies) will be sufficient for first degree murder.

      • Highly dangerous; on enumerated list:

        1. Burglary

        2. Arson

        3. Robbery

        4. Rape

        5. Kidnapping

    4. Intent to inflict great bodily harm murder or depraved heart murder are at most second degree murder



Voluntary Manslaughter

Rule: (1) The intentional killing of a human being; (2) with adequate provocation. (homicide with malice but with mitigation (and no justification or excuse))

  1. The intentional killing of a human being

  2. With adequate provocation

    1. Provocation would arose sudden and intense passion in the mind of an ordinary person so as to cause loss of self-control (objective)

      1. Modern common law jurisdictions: mere words can be adequate provocation if so determined by a jury

      2. Objective passion: the provocation must be one that would have caused a reasonable person to lose self-control and a reasonable person would have not have cooled off in the time lapse between the provocation and the time of the killing.

    2. Defendant is in fact provoked (subjective)

      1. Subjective passion: the defendant must have been actually provoked sufficient to losing self-control and did not cool off before killing the victim

    3. Insufficient time for passions of a reasonable person to cool (objective); and

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

  3. Requires intent to kill someone

    1. Even if not particular victim (transferred intent applies)



Involuntary Manslaughter

  1. Homicide with malice and no justification or excuse

    1. A homicide committed without malice under one of the three following circumstances

      1. Intent to inflict slight bodily injury: Defendant kills victim with no intent to kill or seriously injure, but did have intent to inflict some slight bodily injury. This is typically a non-aggravated (no weapon) battery or assault that causes death of victim.

      2. Criminal negligence: Defendant kills victim while acting in a more than ordinary negligent manner but the Defendant’s conduct does not present a high enough risk of death for depraved heart recklessness. Defendant’s conduct is a gross deviation from the standard of care that a reasonable person observe.

      3. Misdemeanor-Manslaughter: Defendant kills while committing a non-inherently dangerous felony (i.e. felony not sufficient for felony murder rule) or a malum in se (inherently wrongful) crime as opposed to a malum prohibitum (wrongful only because prohibited by statute) crime.




  1. Rule: (1) An intent to commit a specific crime (which may be inferred from conduct), and (2) an overt act in furtherance of that crime.

  2. Perpetration

    1. Must do more than merely prepare, must take a substantial step toward its commission or come dangerously to completing the intended crime

  3. With the intent to commit the crime

    1. D must have specific intent to commit the target crime

    2. If no independent evidence of intent, infer from conduct

  4. Defenses

    1. Merger: Attempt merges into the target crime so a D who actually commits the intended crime cannot be convicted and punished for both attempt and intended crime

    2. Impossibility: If the D does not succeed in committing the target crime, it may be because the target crime was either legally or factually impossible.

      1. Legal impossibility is a good defense; factual defense is not

      2. Legal impossibility (good defense): exists when the acts defendant intends to commit are not a crime in the jurisdiction.

        • eg. defendant intends to hunt where he believes it is prohibited, but it is not prohibited there

      3. Factual impossibility (not a defense): exists when the acts defendant intended to commit would be a crime, if the facts were as defendant believed




  1. Rule: (1) Defendant incites, counsels, advises, induces, urges, or commands, another person to commit a crime (2) with the intent that the crime be committed by that person 

  2. Vicarious Liability: if the party solicited actually commits the requested crime, the solicitor will also be liable for the crime



Accomplice Liability

  1. Rule: (1) Defendant encourages or assists; (2) another person who commits a crime; (3) with the intent to promote or facilitate the commission of the crime.

  2. Defendant is liable for each of the crimes that is foreseeable

    1. Discuss foreseeability of each crime

  3. General agreement is not intent

    1. Knowledge is is generally not intent unless Defendant does more

  4. Silent approval is not sufficient

  5. Only applies to accomplices who encourage or assist in the crime

    1. Not those who help after the crime has been committed

    2. Accessory After the Fact: One who, with the intent to help a felon escape or avoid arrest or trial, receives, relieves, or assists a known felon after the felony has been completed.




  1. Rule: (1) An agreement between or among two or more persons to commit a crime, (2) in intent to enter into the agreement and; (3) an intent to achieve the unlawful objective of the agreement.

  2. Liable for all acts of co-conspirators that are foreseeable “in furtherance” of conspiracy.

    1. “In furtherance” means necessary to accomplish goal.

  3. All co-conspirators are liable for any acts of another co-conspirator that are foreseeable and in furtherance of the conspiracy

    1. Discuss foreseeability of each act

  4. Agreement

    1. Can exist by express words or it can be implied by conduct.

    2. Co-conspirators need not meet or even know each other exist; so long as they are working toward a common unlawful goal an agreement exists.

  5. With Another Party

    1. Majority rule requires all conspirators to agree to commit the unlawful objective.

      1. An agreement with an undercover police officer who knowly feigns agreement is not a conspiracy.

    2. Minority rule (MPC)

      1. One guilty mind is enough for conspiracy if the guilty mind believed the other party was actually agreeing to commit the unlawful purpose.

  6. Unlawful Objective

    1. Crime or fraud

  7. Overt Act:

    1. At common law, only the agreement was required.

    2. Today, most states also require that one of the conspirators perform an overt act in furtherance of the unlawful purpose.

      1. Just about anything (buying supplies, planning escape route, etc.) will qualify as an overt act so not really testable on the exam.

  8. Vicarious Liability:

    1. All conspirators are liable for any crime committed by any other conspirator so long as the crime was (1) reasonably foreseeable and (2) in furtherance of the conspiracy.



Accessory After the Fact

  1. The one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial or conviction.

  2. Mere comfort is not sufficient, unless it is with the purpose of the help the felon escape



Self Defense

  1. A person may use deadly force if:

    1. He is without fault (did not initiate the assault or provocation)

    2. He is confronted with unlawful force; and

    3. He is threatened with immediate death or great bodily harm

      1. Must reasonably believe he is threatened with imminent death or great bodily harm

      2. May use deadly force to protect against an imminent deadly attack. Deadly force must be reasonable and necessary to repel the attacker

  2. Majority rule: No duty to retreat

    1. The defendant need not retreat before using deadly force, unless defendant is the initial aggressor, and safe retreat is available

  3. Minority rule: retreat only if it can be done in complete safety, and does not require retreat from the home or business

    1. Defendant must retreat before using deadly force if safe retreat available, unless Defendant in his/her home, a police officer, or victim of a violent felony.



Defense of Others

  1. Defendant must reasonably believe that the other person is legally entitled to use force and may only use reasonable force to prevent it.

    1. Majority Rule: Reasonable mistake is acceptable

    2. Minority Rule: Defendant can use no more force than the person they are defending (steps into the shoes fo the person defended)

  2. Discuss whether the other person could have asserted self-defense using the elements of self-defense




  1. M’Naughten Rule or Right/Wrong Test

    1. A disease of the mind caused a defect of reason such that the defendant lacked the ability to either know the wrongfulness of his actions or understand the nature and quality of his actions

    2. Note: focus on mental impairment, not physical ability.

  2. Irresistible Impulse

    1. Because of mental illness, a defendant is unable to control his actions or conform his conduct to the law

    2. Note: focus is on his volitional ability, not cognitive. Need not be sudden event.

  3. Durham Rule (only adopted in one state)

    1. But for causation

    2. If the crime was a product of the mental disease or defect, this requires an acquittal

  4. ALI/MPC Test

    1. As a result of mental disease, defendant lacked substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the law

    2. Note focus on both volitional (conform conduct) and cognitive (appreciate wrongfulness)




  1. If the defendant is intoxicated (alcohol, illegal or legal drugs) at the time of the crime, the intoxication may excuse criminal liability

  2. Voluntary

    1. Exists when the defendant voluntarily and knowingly consumes an intoxicating substance.

    2. Not a defense to general intent or malice crimes.

      1. Only if the defendant is so intoxicated he cannot form the specific intent required for the crime.

    3. It is a defense to specific intent crimes, including

      1. First degree murder

        • Can preclude a finding of deliberation if the D is charged with First Degree Murder

      2. Burglary

      3. Larceny

      4. Robbery

      5. Attempt

  3. Involuntary

    1. Exists when the defendant involuntarily (forced to consume) or unknowingly (voluntarily consume without knowledge substance consumed was an intoxicant). Involuntary intoxication is a defense to all crimes if the intoxication renders the defendant “insane” under the applicable test.

    2. Defense to both general and specific intent crimes.

    3. It may be treated as insanity, in which case you discuss the types of insanity defenses



Exclusionary Rule

  1. Rule: A remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can (among other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution

    1. Limitations on Exclusion

      1. Grand jury proceedings

        1. A grand jury witness may be compelled to testify based on illegally seized evidence

      2. Civil proceedings

      3. Parole revocation hearings

      4. Impeachment purposes**

        1. Since 1980, all illegally seized evidence may be admitted to impeach the credibility of the defendant’s testimony

          • Evidence violative of Miranda can be used to impeach

        2. Only the defendant’s trial testimony may be impeached - not the testimony of other defense witnesses

      5. Violations of the knock and announce rule in the execution of warrants (police must knock and announce their presence, even when they have a warrant)



Fruit of the Poisonous Tree

  1. Rule: The doctrine will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from police illegality.

  2. Does not apply to Miranda violations unless the police act in bad faith in obtaining such information

  3. There are three ways that the government can break the chain between an original, unlawful police action and some supposedly derived piece of evidence (the three i’s)

    1. The government could that it had an independent source for that evidence, independent of that original police activity

    2. Inevitable discovery: the police would have inevitably discovered the evidence anyway

    3. Intervening acts of free will on the part of the defendant



Exclusionary Rule and Convictions

  1. A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial 

  2. On appeal, a court will apply the Harmless Error test: a conviction will be upheld if the conviction would have resulted despite the improper evidence



Arrests and Detentions

  1. An arrest must be based on probable cause

  2. Arrest warrants are generally not required before arresting someone in a public place

  3. Non-emergency arrest of an individual in his home does require an arrest warrant 

  4. Station house detention: the police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation (but not to ask you to do so)