California Bar Prep: Criminal Law

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1.

Murder definition: Killing a human being with malice

10.

aforethought
2.

doesn't work): 1. self-defense

2. defense of others
3. crime prevention
4. apprehending a felon
5. reasonable mistake

Malice aforethought - four ways to show: 1. Intent to kill

2. Intent to inflict great bodily harm (or serious bodily injury)
3. Act of a depraved heart - reckless indifference to a known high
risk of death
4. Felony murder rule

3.

4.

6. defense of property is not a defense, unless the intruder is in

your home intending to commit a deadly felony.

When can you infer "intent to kill" from a defendant's

conduct?: When he uses a deadly weapon in a deadly manner firing a gun at the head or midsection.

11.

Define "during preparation" (context: felony murder

12.

What are the inherently dangerous felonies?: At common

In a minority of jurisdictions, you always have to retreat if it is

safe to do so... unless you are the victim of a violent felony, at
home, or you are the police.

law: BARRK
Burglary, Assault, Robbery, Rape, Kidnapping
7.

What is "a felony that is independent from the act that

13.

caused death" and why does that matter?: In the felony

murder rule context, the felony that gives rise to the "felony
murder" method of showing intent must be independent from the
felony that caused death, otherwise it CANNOT BE USED as a
basis for the felony murder rule.
Example: If you shove someone through a window and they end
up dying, you can't get "felony murder" by claiming that the
murder occurred during a battery.

14.

If the victim is NOT entitled to self-defense, it's still okay in a

majority of jurisdictions as long as your use of deadly force was
based on a reasonable mistake.

felony murder rule?

In a minority of jurisdictions, you can't use felony murder to hold

a co-felon liable for the killing of a bystander by a non-felon.
9.

In a minority of jx, you stand in the shoes of the defendant. If he

can't defend himself, you can't either.
15.

Crime prevention - definition: A policeman or a private

person can use deadly force if necessary to prevent the
commission of an inherently dangerous felony.

16.

Apprehension of suspect: A policeman can use deadly force

to apprehend a dangerous felon if it is reasonably necessary to do
so. A private person does NOT GET THE BENEFIT of a
"reasonable mistake" on this one. We don't want people out there
going "vigilante" with it.

What is "involuntary manslaughter?": A homicide

committed without malice under one of the following mental
states:
1. intent to inflect bodily injury, however slight. i.e. you trip a
person, and they fall over and die.
2. criminal negligence: killing a victim in a way that is not as
bad as depraved heart, but somehow worse than "ordinary
negligence."
3. misdemeanor manslaughter - defendant kills victim while
committing some non-dangerous felony... or a "malum in se"
crime of some sort.

Defense of others - definition: Defendant can use deadly

force to defend another person as long as its reasonable and
necessary.

If a non-felon kills a co-felon, is everyone liable for the

What about if a non-felon kills a bystander?: The felony

murder rule cannot be used as a basis for liability for a non-felon
killing a co-felon during an independent felony.

Self-defense: duty when Defendant is initial aggressor:

In order to claim self-defense:
1. defendant must attempt withdraw from the conflict
2. the "other guy" must escalate the use of force - bring out guns
in a fistfight
3. defendant must retreat if safe to do so.

If you shoot someone during a bank robbery - THAT'S an

independent felony.
8.

Self-defense: duty to retreat: You do not have a duty to retreat

unless you started the fight - then you must retreat if it's safe to do
so.

rule): from the moment "attempt" starts to the time the

defendant reaches a place of temporary safety.
6.

Self-defense definition: Defendant may use deadly force to

protect against an imminent deadly attack, but the use of force
must be reasonable and necessary.

Felony murder definition: A homicide committed during the

perpetration of an inherently dangerous felony.

5.

Homicide justifications (list the five, and the one that

17.

Homicide excuses - effect of: If a homicide (or any crime) is

18.

Insanity: M'Naghten test: Also called the "right/wrong" test,

excused, the defendant is not criminally liable at all.

it's when the Defendant, because of a mental disease or defect,
does not know the wrongfulness or his conduct or could not
understand the nature and quality of his act.
In other words, "I didn't know killing was wrong" or "what? I
killed? I thought I was jumping rope."
Focus on cognitive impairment, not on volitional activity.

19.

Insanity: irresistible impulse test: When Defendant is

30.

unable to control or conform his conduct to the law. Focus on

volitional of the act, not cognitive impairment.
20.

WITHOUT prior consent - if someone gives you consent later,

after you take it, that doesn't matter.
take and carry - the slightest movement is enough.
personal property of another - possession interest is what's
protected, not ownership interest
intent to deprive - this intent must exist at the time of taking, and
you must intend to keep it forever, not just for a little while.

Insanity: ALI/MPC test: Defendant lacks the substantial

capacity iether to conform his conduct to the law or to appreciate
the wrongfulness of his act.

21.

Insanity: Durham test: Not guilty if the crime is "product" of a

mental disease or defect. This test is not used, but we still have to
mention it.

22.

31.

32.

23.

Victim gives you rightful possession, then you take it.

33.

25.

This usually comes up in the context of "intent to sell," as in,

someone is falsely induced into selling something. Protects the
ownership interest rather than the possessory interest. (contrast
with Larceny, which protects the possessory interest.)

Mitigation by good faith mistake: When a defendant

intentionally kills under a good-faith, but unreasonable,
mistaken belief as to self-defense, defense of others, or crime
prevention, that mitigates a killing from murder down to
voluntary manslaughter.

34.

Later harm or harm that is not to the body (but, say, to the
property) is extortion, not robbery.

kill" is both premeditated and deliberate, that is a "first-degree"

murder.

premeditated is any amount of time spent thinking about killing

the victim.

Robbery: A larceny from the victim's person or immediate

presence by either force or the threat of immediate bodily harm.

First-degree murder: definition: When a person's "intent to

Deliberate means that the defendant acted in a cool, collected

frame of mind.

False pretenses: Acquisition of title to property of victim by a

false representation with an intent to defraud.

Mitigation by provocation: When defendant is actually

provoked by something that would cause a reasonable person to
lose self-control without time to cool off, that person can
"mitigate" his killing from murder down to voluntary
manslaughter.

24.

Embezzlement: Fraudulent conversion of the property of

another by one in rightful possession - so you deal with the
victim's property in a way inconsistent with his original grant of
possession to you.

Voluntary intoxication: this CAN work as a defense to a specific

intent crime, but not to a general intent or strict liability crime.
All intoxication may preclude "deliberation" in first-degree
murder context.

Larceny by trick: Same as larceny, but instead of "trespassory,"

you take something by tricking the victim into consenting to your
having it.

Intoxication: when does it excuse liability: Involuntary

intoxication: any type of crime so long as you're so drunk you
don't know what you're doing.

Larceny: define each element: trespassory - taking

Victim's person or presence can be their wallet or something in

the same room.
35.

Arson: Burning of a protected structure of another with malice.

notes: "burning" means "charring the structural portion of the
building."

36.

Burglary: Trespassory breaking and entering of the protected

structure of another at night without consent.

Felony murders are also first degree murders.

26.

Any physical movement of a door or window is "breaking," intent

must exist at the time of entry.

Assault: An assault is either

1. an attempted battery
2. the intentional creation of a reasonable apprehension of
bodily contact.

27.

Battery: A harmful contact with the person of the victim.

28.

Kidnapping: confinement of the victim involving movement of

37.

"attempted __________" if he commits an act of perpetration

with the intent to commit the target crime. An "act of
perpetration" is a substantial step towards the commission of a
crime, or to come "dangerously close" to completion of the crime.

the victim or concealment of the victim.

29.

"Attempt" crimes: definition: Defendant is guilty of

Larceny: Trespassory taking and carrying away of the personal

Defendant must have SPECIFIC intent to commit the target

crime. (So, if you speed through a school zone at 120, and you
strike a kid, and he doesn't die, you are not guilty of attempted
murder, although you would be guilty of depraved heart murder if
he died.)

property of another with the intent to permanently deprive.

38.

Attempt defenses: merger: When the target crime is

completed, the "attempt" merges into the "target crime" and the
defendant can't be punished twice.

39.

Attempt defenses: impossibility: Legal and factual

49.

impossibility only apply to attempt and conspiracy.

fact or is ignorant of a fact, and that ignorance or mistake

negates the required mental state for a crime, the defendant is
NOT guilty of that crime.

Legal impossibility is when defendant's intended acts would not

be a crime - that's a good defense to anything.

40.

An unreasonable mistake will only negate a crime that requires a

specific intent.

Factual impossibility is when the facts, if they were as Defendant

thought they were, would be a crime - that IS a crime.

50.

Mistake of law: Not a defense!

Conspiracy: definition: Defendant enters into an agreement

51.

General criminal intent: Battery/rape/assault crimes.

with another party for an unlawful objective and some overt act is
performed in furtherance of that unlawful objective.
41.

Conspiracy: agreement elements: Agreement between

Key defense: reasonable mistake of fact.

52.

defendants can be by words or by conduct - the majority rule is

that all co-conspirators must actually agree in order for them to
be charged with conspiracy. In a minority of jx, "one guilty mind"
is enough... in other words, if the other guy is actually an
undercover officer, it's STILL a conspiracy.
42.

Vicarious liability in conspiracy: All conspirators are liable

for any crime that is reasonably foreseeable and reasonably in
furtherance of the conspiracy.

43.

Defenses to conspiracy: withdrawal: Withdrawal is when a

defendant timely communicates to all other conspirators that
defendant is no longer a participant.
"Timely" means before the target crime.
The effect of withdrawal is to excuse the defendant from liability
for the TARGET crime, but not for "conspiracy."
Under the MPC, if you go to the police in enough time to stop the
conspiracy from committing the target crime, you are excused
from all liability.

44.

Defenses to conspiracy: merger: Merger is NOT a defense to

conspiracy!
Tricked you, huh?

45.

Accomplice liability: Accomplices are anybody who assists,

encourages, aids, or counsels the principal in the perpetration of
a crime. All accomplices are liable for all foreseeable crimes that
the accomplice assisted in.

46.

Accessory after the fact liability: Accessories after the fact

are people who help a felon escape or avoid arrest or trial -POST-felony. They are not liable for the target crime, but they are
usually guilty of a separate crime (obstruction of justice) which
carries a five-year maximum sentence.

47.

Defenses to all crimes: Duress: If any crime is committed

under the threat of imminent death, the defendant is excused,
unless that crime is a homicide. Killing someone else instead of
yourself is not "the lesser of two evils."

48.

Mistakes of fact: If defendant makes a reasonable mistake of

Defenses to all crimes: entrapment: Defendant is excused if

he can show that the plan to commit the crime originated with
the government and the defendant was not predisposed to
committing the crime.

Specific criminal intent: Assault when based on an attempted

battery, theft, burglary, ALL preliminary crimes, and first-degree
murder with intent to kill
Key defenses: reasonable or unreasonable mistake of fact, or
voluntary intoxication

53.

Strict liability: No mental state required.