Criminal Law Review Session ! - Howe

Crime Elements

100

What is larceny?

Trespassory taking and carrying away of another person's property with the intent to deprive them permanently

200

In California ____ degree murder is presumed. How do you change the charge from that degree to a different degree?

Second.

1. Willfully premeditated and deliberated (anderson test)

2. killing by atrocious means

3. enumerated felonies

300

What is conspiracy?

agreement between 2+ people to commit an unlawful act or acts (CA: plus an overt act in furtherance)

400

What are the elements of conspiracy?

• 1. Intent that the crime be committed (not a joke)
• 2. Asking or encouraging another to commit or join in commission
• 3. Crime is the one specified

500

What are the elements of robbery?

• Taking the personal property of another and in another’s possession from another person or their immediate presence by force or putting vic in fear of physical injury and against their will with the intent to deprive them permanently

Homicide

100

Murder is ________

unlawful killing of another human being with malice aforethought

200

List the enumerated felonies and atrocious means

EF: arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking

AM: destructive device/explosive, weapon of mass destruction, use of ammunition to penetrate armor, poison, lying in wait, torture

300

Explain the difference between gross recklessness homicide and negligent homicide

Gross recklessness: second degree murder, test:

• 1. Do an act knowing the natural consequences of which are dangerous to life which is
• 2. Deliberately performed with a conscious disregard for human life

Negligence: involuntary manslaughter

• 1. Would a reasonable person have understood the risks?

400

What are the four theories of CL murder and the two theories of CA murder?

CL: Intent to kill, intent to do serious bodily harm, gross recklessness, felony killing

CA: express malice and implied malice

500

Explain third party killings and the provocative act doctrine

Vic doesn't matter, who the killer is does

If co-def kills a vic, then you are liable too. If non-agent kills vic, you are not liable unless your code provoked the non-agent to kill the vic --> see below

Provocative act: (makes it implied malice based on gross recklessness)

• 1. Def performed an act with gross recklessness
• 2. That was beyond the commission of the felony
• 3. Need cause in fact and proximate cause analysis still

Basics

100

Define Actus Reus

A voluntary act that causes social harm

200

When can you use a mistake of fact defense and when can you use voluntary intoxication evidence?

Mistake of Fact: General intent crimes, specific intent to specific portion of the crime

Voluntary Intox: specific intent crimes

300

Describe the Andersen test (components and which ones you need). Also, what is the test for??

1. Planning Activity

2. Motive Evidence

3. Nature of Killing

Need: all 3, OR strong 1, OR 2 with 1 or 3

Test to determine willfully premeditated and deliberated to elevate second to first degree murder

400

What are the specific intent crimes we learned?

Assault with intent to kill

 assault with intent to rape

attempts

conspiracies

burglary

theft by larceny

RSP

unlawful possession of narcotics

murder (express malice)

aiding and abetting

500

What are the factors you weigh when determining if there is proximate cause (focusing on foreseeability)?

• 1. How great was the culpability of any intervening actor
• 2. To what extent was the def a small vs. major force in the chain
• 3. To what extent did the vic voluntarily assume a risk of serious harm or death
• 4. To what extent was there a long chain of intervening events and delay between the defs act and vics death -->The longer the chain the less likely the single act was a proximate cause
• 5. What was the death of the vic and the intent of the death

California vs Common Law

100

When does life begin and end at CL and in CA?

CL: Life = birth, Death = heart stops (year and a day rule!)

CA: life = 7-8 weeks pregnant, Death = heart stops or brain death (NO year and a day)

200

How do things differ for employees in CA vs CL in terms of larceny?

CL: employees have custody

CA: employee's have constructive possession (retain power to exercise control)

300

What is the difference between burglary at CL and CA?

CL: breaking and entering the dwelling of another at nighttime with the intent to commit a felony therein (entry = any part of defs body or tools to commit felony (not just tools to gain entry)

CA: any person who enters the space/property of another with the intent to commit a grand or petty larceny or ANY felony

400

Describe the transition from murder to voluntary manslaughter and then describe how this differs from CL to CA

Provocation!

CL: 

• Provocation from vic causing the def to kill vic in heat of passion before passage of a reasonable cooling off period where the provocation is one of these: (words not enough)
• 1. See spouse commit adultery
• 2. Aggravated Assault/Battery
• 3. Commission of serious assaultive crime against a close relative
• 4. Illegal arrest of def
• 5. Mutual Combat

CA: 

• Whether or not the defs reason was, at the time of his act, so disturbed or obscured by some passion…to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment

500

Define rape and statutory rape from both the common law and California standard. Then, describe the modern reforms

CL: Def had sexual intercourse: with a woman; who was not his wife; using physical force (or threat of physical force); without her consent and against her resistance --> vic must resist, statutory rape = 10 years old

CA: an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

• Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury of another --> do not have to resist and duress can include implied threat of retribution
• Stat. rape is 18, Lewd Acts = 14

Modern Reforms:

• Definitions of rape are gender neutral
• Threats of nonviolent retaliations work instead of threats of physical force
• Many states eliminated spousal immunity
• Can talk about defs CCH, cannot ask about vics sexual past
• Resistance no longer necessary

Surprise

100

You usually do not have a duty to act...but what are the exceptions for when there IS a legal duty?

-Status Relationship (parent to child, husband to wife, master to apprentice, ship's master to crew/passengers, innkeeper to inebriated customer)

-Contractual duty

-Voluntarily assumed care of victim and secluded them

-Actor created risk

-Statutory Duty

200

What are the elements of self-defense and who needs to prove it?

Prosecution must show these elements fail:

• 1. Honest belief that is
• 2. Objectively reasonable in light of the surrounding circumstances
• 3. That one is in imminent peril
• 4. Of death or serious bodily harm
• 5. From an unlawful use of force (that def did not provoke through aggression)
• 6. That makes use of deadly force necessary

300

What is Wharton's rule?

Expresses an exception to the No Merger Rule of conspiracy

• At common law; An offense that by definition requires the voluntary criminal participation of two persons could not be prosecuted as a conspiracy based only on the participation of the two necessary persons
• Still valid in CA, but that's probably the only place

400

What factors should you consider to determine if something is a public welfare offense?

• Whether legal history and context indicate concern about widespread threat to the public
• General provisions on mens rea that suggest how to interpret state without mens rea
• Severity of punishment (less severe→ more likely be strict liability)
• Seriousness of harm to public (more serious → strict liability)
• Difficulty for def in ascertaining the relevant facts (harder - more likely strict)
• Difficulty for state in proving mens rea (harder - more likely strict)
• Number of prosecutions to be expected (many expected - more likely strict)

500

What are the insanity tests? And how do they differ?

M’Naughten Test (rule in CA today)

• 1.  Were incapable of knowing or understanding the nature and quality of their act and
• 2. of distinguishing right from wrong at the time of the commission of the offense
• 
  
• M’Naughten plus “Irresistible Impulse” Test:
• --> If you are very mentally disturbed, then you may not meet just the M’Naughten test. So, the addition is that you knew it was wrong but you could not resist because of some mental disease or defect
• 
  
• Durham Rule (Product Test) used in DC:
• --> Was the unlawful act the product of mental disease or mental defect
• 
  
• ALI Model Penal Code Test (old CA rule):
• --->Person is not responsible if they lack substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law
• 
  
• Federal Test Today (clear and convincing):
• Def must show by clear and convincing evidence that as a result of a severe mental disease or defect, they were unable to appreciate:
• 1. The nature and quality of their conduct or
• 2. The wrongfulness of their conduct