Criminal Law

Frequency: High | Last tested: July 2023

Overview

Criminal Law is one of the most frequently tested subjects on the California Bar Exam. It appears regularly on the essay portion and is a mainstay of the MBE. The bar examiners expect you to know both common-law rules and the Model Penal Code (MPC) approach, as well as important California statutory distinctions. Criminal Law essays almost always pair with Criminal Procedure, so be prepared to address both in a single essay.

Exam Tip

When a question says "under common law" or "at common law," apply traditional common-law rules. When it references the "Model Penal Code" or "modern view," apply MPC rules. On the California Bar essay, unless told otherwise, apply California law—but note the majority/common-law rule as well where relevant.

Key themes the examiners test repeatedly:

I. General Principles

A. Actus Reus (The Guilty Act)

Every crime requires a voluntary act or an omission where there is a legal duty to act.

Key Rule

Actus Reus requires a voluntary, conscious physical act by the defendant. Involuntary acts—such as reflexes, convulsions, movements during sleep or unconsciousness, or conduct under hypnosis—do not satisfy the actus reus requirement.

Voluntary Act

The act must be a product of the defendant's conscious will. The following are not voluntary acts:

Exam Tip

Under the MPC, only one voluntary act is required within the course of conduct. So if D voluntarily gets drunk and then injures someone while in an unconscious stupor, the voluntary act of drinking can satisfy the actus reus requirement.

Omissions (Failure to Act)

Generally, there is no duty to act. However, criminal liability for an omission arises when:

  1. Statute imposes a duty (e.g., duty to file tax returns, duty to report child abuse)
  2. Contract creates a duty (e.g., lifeguard, nurse, babysitter)
  3. Special relationship (e.g., parent-child, spouse-spouse)
  4. Voluntary assumption of care that isolates the victim from other sources of aid
  5. Creation of the peril (defendant created the dangerous situation)
Watch Out

Even where a duty to act exists, the defendant must have the ability to act. A parent who cannot swim has no duty to jump into deep water to save a drowning child (but may have a duty to call for help or throw a flotation device).

Possession as an Act

Possession can satisfy the actus reus requirement if the defendant was aware of the possession and had sufficient time to terminate it. Possession can be actual (on the person) or constructive (within the person's dominion and control).

B. Mens Rea (The Guilty Mind)

Common-Law Mens Rea

At common law, the mens rea terms were somewhat imprecise:

Key Rule

Specific intent crimes are significant because they allow additional defenses: voluntary intoxication and unreasonable mistake of fact can negate specific intent but NOT general intent.

Common-Law Specific Intent Crimes (Must Memorize)
Students FABLE
Solicitation
First-degree (premeditated) murder
Attempt
Burglary
Larceny (and related: robbery, forgery, embezzlement, false pretenses)
Enticing / Conspiracy / Assault (as attempted battery)

The full list of specific intent crimes:

  • Solicitation
  • Conspiracy
  • Attempt
  • First-degree (premeditated) murder
  • Assault (as attempted battery)
  • Larceny
  • Larceny by trick
  • Embezzlement
  • False pretenses
  • Robbery
  • Burglary
  • Forgery

Model Penal Code Mens Rea

The MPC replaces the common-law categories with four precisely defined levels of culpability, listed from most to least culpable:

  1. Purposely (Intentionally): It is the defendant's conscious object to engage in the conduct or cause the result.
  2. Knowingly: The defendant is aware that the conduct is of a particular nature or that a particular result is practically certain to occur.
  3. Recklessly: The defendant consciously disregards a substantial and unjustifiable risk. The risk must be such that its disregard constitutes a gross deviation from the standard of conduct a law-abiding person would observe.
  4. Negligently: The defendant should be aware of a substantial and unjustifiable risk. The risk must be such that the failure to perceive it constitutes a gross deviation from the standard of care a reasonable person would observe.
Exam Tip

The critical distinction between recklessly and negligently under the MPC: Recklessness requires conscious awareness of the risk (subjective), while negligence requires only that the defendant should have been aware (objective). This distinction is heavily tested.

MPC Level Awareness of Risk Standard
Purposely Conscious object to cause result Subjective
Knowingly Aware result is practically certain Subjective
Recklessly Consciously disregards substantial risk Subjective
Negligently Should be aware of substantial risk Objective

Transferred Intent

Key Rule

Transferred Intent: If the defendant intends to harm one person but accidentally harms another, the intent transfers from the intended victim to the actual victim. This applies to homicide, battery, and arson. It does not apply to attempt (the defendant can be charged with attempted murder of the intended victim AND murder of the actual victim).

C. Concurrence

The mens rea must concur in time with the actus reus. The defendant must have the requisite mental state at the time of the criminal act.

Example: D decides to kill V. The next day, D accidentally runs over V with a car. D is not guilty of murder because the intent to kill did not concur with the act that caused death.

D. Causation

For result crimes (e.g., homicide), the prosecution must prove both actual and proximate causation.

Actual Cause (Cause-in-Fact)

Apply the "but-for" test: But for the defendant's act, the result would not have occurred when it did. For concurrent causes, use the "substantial factor" test: The defendant's act was a substantial factor in bringing about the result.

Proximate Cause (Legal Cause)

The result must be a natural and probable consequence of the defendant's conduct. The key issue is whether an intervening event breaks the causal chain.

Key Rule

Intervening causes:

  • Dependent intervening causes (responses to the defendant's act, such as medical treatment, victim's reactions) generally do not break the chain unless they are extraordinarily negligent or bizarre.
  • Independent intervening causes (coincidences unrelated to the defendant's act) do break the chain if they were unforeseeable.

The defendant "takes the victim as he finds him" (eggshell-skull rule applies in criminal law too).

Watch Out

Common intervening cause scenarios on the bar exam:

  • Negligent medical treatment: Generally does NOT break the chain (foreseeable).
  • Grossly negligent medical treatment: May break the chain (debatable; many courts still hold D liable).
  • Victim's refusal of medical treatment: Does NOT break the chain.
  • Victim's pre-existing condition that hastens death: Does NOT break the chain.
  • An unrelated third party who independently kills the victim: DOES break the chain (independent, unforeseeable).
  • Victim fleeing and injured in escape: Does NOT break the chain if the reaction was foreseeable.

MPC Approach to Causation

Under the MPC, the result must not be "too remote or accidental in its occurrence to have a just bearing on the actor's liability or on the gravity of his offense." For purposeful and knowing crimes, the result must not differ from the designed or contemplated result. For reckless and negligent crimes, the actual result must be within the risk of which the actor was (or should have been) aware.

II. Homicide

Homicide is the killing of a living human being by another human being. It is the single most frequently tested topic in Criminal Law. You must know the distinctions between the various grades and types.

Homicide Hierarchy (Most to Least Serious)
First-Degree Murder → Second-Degree Murder → Voluntary Manslaughter → Involuntary Manslaughter

A. Murder at Common Law

Key Rule

Murder (Common Law): The unlawful killing of another human being with malice aforethought. "Malice aforethought" can be established in four ways:

  1. Intent to kill (express malice)
  2. Intent to cause serious bodily harm
  3. Depraved-heart murder (reckless indifference to an unjustifiably high risk to human life / "abandoned and malignant heart")
  4. Felony murder (killing during the commission of an inherently dangerous felony)

B. First-Degree Murder

At common law, there were no degrees of murder. Statutory schemes divide murder into degrees. First-degree murder typically includes:

  1. Premeditated and deliberate murder: The defendant made a conscious decision to kill after reflection, however brief. "Premeditated" means the defendant thought about the killing beforehand. "Deliberate" means the defendant made a conscious decision to kill in a cool and dispassionate manner.
  2. Felony murder: A killing committed during the perpetration of certain enumerated felonies (typically BARRK: Burglary, Arson, Robbery, Rape, Kidnapping).
  3. Murder by specified means: E.g., lying in wait, torture, poison, bombing, or use of weapons of mass destruction.
Exam Tip

Premeditation does not require extensive planning. Courts have held that premeditation can be formed in an instant, "as quickly as successive thoughts of the mind." However, mere intent to kill, without more, is insufficient—there must be some evidence of reflection and deliberation. Look for facts suggesting: (1) planning activity, (2) motive, or (3) manner of killing suggesting preconceived design (the Anderson factors in California).

C. Second-Degree Murder

Key Rule

Second-Degree Murder is the "default" category of murder. It includes all murders with malice aforethought that do not qualify as first-degree murder:

  • Intent-to-kill murder without premeditation and deliberation
  • Intent to inflict serious bodily harm murder
  • Depraved-heart murder (extreme recklessness)
  • Felony murder during a non-enumerated inherently dangerous felony

Depraved-Heart Murder

Conduct that demonstrates a "depraved indifference to human life" or an "abandoned and malignant heart." The defendant acts with extreme recklessness, creating a very high risk of death. Examples: shooting into a crowded room, driving at extreme speeds through a busy intersection, playing Russian roulette.

D. Felony Murder

Key Rule

Felony Murder Rule: Any killing (even an accidental one) committed during the perpetration of, or attempt to perpetrate, a dangerous felony is murder. The malice element is supplied by the intent to commit the underlying felony. No additional mens rea for the killing itself is required.

Limitations on Felony Murder

  1. Inherently dangerous felony: The underlying felony must be inherently dangerous to human life (judged either in the abstract or as committed in the particular case, depending on the jurisdiction).
  2. Merger doctrine (independent felony requirement): The underlying felony must be independent of the killing. Felonies that are integral to the homicide (e.g., assault, battery) "merge" with the killing and cannot serve as the predicate for felony murder. This prevents every manslaughter from being elevated to murder.
  3. During the commission of the felony: The killing must occur during the commission, attempted commission, or immediate flight from the felony. The felony is complete when the felon has reached a place of temporary safety.
  4. Causal connection: There must be a causal connection between the felony and the killing. The death must be a foreseeable result of the felony.
  5. Co-felon liability: All co-felons are liable for felony murder committed by any co-felon during the felony.
Watch Out

The Agency Theory vs. Proximate Cause Theory:

  • Agency Theory (majority): Felony murder applies only to killings committed by the defendant or an agent (co-felon). If a bystander or police officer kills someone, the felons are NOT liable under felony murder.
  • Proximate Cause Theory (minority): Felony murder applies to any death that is a proximate result of the felony, including killings by third parties (e.g., police shooting a bystander).
California Distinction

California Felony Murder (Post-SB 1437, effective 2019): California significantly narrowed the felony murder rule. A participant in a felony can only be liable for felony murder if the participant:

  1. Was the actual killer; OR
  2. Was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of first-degree murder; OR
  3. Was a "major participant" in the underlying felony AND acted with "reckless indifference to human life" (the Banks/Clark factors).

This eliminated felony murder for minor participants in a felony who did not kill or intend to kill.

California Distinction

Provocative Act Murder (California): When a defendant commits a provocative act (such as initiating a gun battle during a robbery) that causes a third party (such as a police officer or victim) to kill an innocent person or a co-felon, the surviving defendant can be charged with murder under an implied malice theory, not felony murder. This is sometimes called the "provocative act" doctrine.

E. Voluntary Manslaughter

Voluntary manslaughter is an intentional killing that is mitigated from murder due to extenuating circumstances. It is sometimes called a "heat of passion" killing.

1. Heat of Passion (Provocation)

Key Rule

Voluntary Manslaughter (Heat of Passion): A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed in the heat of passion after adequate provocation. The elements are:

  1. Adequate provocation: The provocation must be such that a reasonable person would have been provoked to lose self-control.
  2. Actual heat of passion: The defendant must have actually been in a state of passion (anger, rage, fright) at the time of the killing.
  3. No sufficient cooling time: There must not have been enough time for a reasonable person to cool off between the provocation and the killing.
  4. Defendant did not actually cool off: The defendant must not have actually cooled off (even if a reasonable person would have).

Traditionally adequate provocation includes:

NOT adequate provocation:

Exam Tip

Under the MPC, the heat of passion doctrine is broadened to "extreme mental or emotional disturbance" (EMED) for which there is a reasonable explanation or excuse. Under the MPC: (1) mere words CAN be sufficient; (2) the "cooling time" requirement is relaxed; and (3) the reasonableness of the explanation is determined from the viewpoint of a person in the actor's situation. This is a much more defendant-friendly standard.

2. Imperfect Self-Defense

Key Rule

Imperfect Self-Defense: In some jurisdictions, including California, a killing is reduced from murder to voluntary manslaughter when the defendant had an honest but unreasonable belief that deadly force was necessary for self-defense. The defendant genuinely believed deadly force was needed but a reasonable person would not have.

California Distinction

California recognizes imperfect self-defense as a basis for reducing murder to voluntary manslaughter. This applies when the defendant had a genuine but unreasonable belief in the need for deadly force, or when the defendant used excessive force in response to a real threat. Note: imperfect self-defense is NOT available to the initial aggressor.

F. Involuntary Manslaughter

Key Rule

Involuntary Manslaughter: An unintentional killing that results from:

  1. Criminal negligence (gross negligence): The defendant's conduct involved a gross deviation from the standard of care a reasonable person would observe, creating a high risk of death or serious bodily harm. This is more than civil negligence but less than the extreme recklessness required for depraved-heart murder.
  2. Misdemeanor manslaughter (unlawful-act doctrine): A killing committed during the commission of a misdemeanor or unenumerated felony that is not inherently dangerous.
Watch Out

The distinction between depraved-heart murder and involuntary manslaughter (criminal negligence) is one of degree. Both involve risk creation. The difference: depraved-heart murder requires extreme recklessness (conscious disregard of an extremely high risk), while involuntary manslaughter requires only gross negligence or ordinary recklessness. On the exam, argue both when the facts are borderline.

Misdemeanor Manslaughter

A killing committed during a misdemeanor (or non-inherently-dangerous felony not qualifying for felony murder) is involuntary manslaughter. Limitations:

G. Homicide Comparison Table

Type of Homicide Mens Rea Key Facts to Look For
First-Degree Murder Premeditated and deliberate intent to kill; OR felony murder (BARRK); OR specified means (poison, lying in wait, torture) Planning, motive, method suggesting preconceived design; killing during burglary, arson, robbery, rape, kidnapping
Second-Degree Murder Intent to kill (without premeditation); intent to cause serious bodily harm; depraved heart; felony murder (non-BARRK) Spontaneous intent to kill; extreme recklessness; killing during non-enumerated dangerous felony
Voluntary Manslaughter Intent to kill mitigated by heat of passion or imperfect self-defense Adequate provocation, no cooling off, actual passion; honest but unreasonable belief in need for deadly force
Involuntary Manslaughter Criminal negligence / gross negligence; OR misdemeanor manslaughter Grossly negligent conduct creating risk of death; killing during misdemeanor

III. Inchoate Crimes

A. Attempt

Key Rule

Attempt requires: (1) specific intent to commit the target crime, and (2) a substantial step toward commission of the crime that goes beyond mere preparation.

Mens Rea of Attempt

Attempt is always a specific intent crime, regardless of the mens rea of the target offense. This means:

Actus Reus of Attempt—The Line Between Preparation and Attempt

Test Standard Notes
Substantial Step (MPC/Modern) Conduct that is strongly corroborative of criminal purpose and constitutes a substantial step toward commission of the crime Most widely adopted; lower threshold for attempt liability
Dangerous Proximity (Common Law) Defendant came dangerously close to completing the crime Focuses on what remains to be done, not what has been done
Unequivocality / Res Ipsa Loquitur Defendant's conduct, viewed objectively, manifests criminal intent Less commonly used
Last Act Defendant did everything necessary for the crime to occur Most restrictive; rarely used today

Defenses to Attempt

Merger

Attempt merges with the completed crime. If the defendant is convicted of the completed offense, the attempt conviction is vacated. However, a person can be charged with attempt if the completed crime cannot be proven.

B. Solicitation

Key Rule

Solicitation: Asking, encouraging, requesting, or commanding another person to commit a crime, with the intent that the crime be committed. The crime is complete at the moment of the asking—it does not matter whether the other person agrees or the crime is ever committed.

C. Conspiracy

Key Rule

Conspiracy: An agreement between two or more persons to commit an unlawful act, with the intent to achieve the objective of the agreement. At common law, no overt act is required. Most modern jurisdictions and the MPC require an overt act in furtherance of the conspiracy (even a minor preparatory act suffices).

Elements

  1. Agreement: Between two or more persons. The agreement need not be express; it can be inferred from conduct. There is no requirement that all conspirators know each other or all details of the plan.
  2. Intent to agree: The defendant must intentionally enter into the agreement.
  3. Intent to achieve the objective: The defendant must have the specific intent to accomplish the unlawful objective.
  4. Overt act (in most jurisdictions): Any act, even a minor preparatory one, performed by any conspirator in furtherance of the conspiracy.

Key Conspiracy Issues

No Merger: Unlike attempt and solicitation, conspiracy does NOT merge with the completed crime. A defendant can be convicted of both conspiracy and the target offense.

Bilateral vs. Unilateral Approach:

California Distinction

California follows the bilateral (traditional) approach. Both parties must genuinely agree. Also, California requires an overt act for all conspiracies except those involving the most serious felonies.

Pinkerton Doctrine (Co-Conspirator Liability):

Key Rule

Pinkerton Doctrine: Each conspirator is liable for all crimes committed by co-conspirators that are (1) in furtherance of the conspiracy and (2) were foreseeable consequences of the conspiratorial agreement. This is vicarious liability—the defendant need not have participated in, known of, or agreed to the specific crime.

Watch Out

The MPC rejects the Pinkerton doctrine. Under the MPC, a conspirator is only liable for the crimes of co-conspirators if the conspirator qualifies as an accomplice to those crimes.

Wharton's Rule:

Key Rule

Wharton's Rule: Where a crime by definition requires two participants (e.g., adultery, dueling, bribery, bigamy), there can be no conspiracy conviction if only the minimum number of participants are involved. However, if a third party participates, conspiracy charges are possible. Note: Wharton's Rule is a judicial presumption, not a constitutional bar, and can be overcome by legislative intent.

Withdrawal from Conspiracy:

Conspiracy Structures

Chain conspiracy: A single conspiracy where each participant performs a role in a chain of distribution (e.g., drug manufacturing → distribution → street sales). Each link is liable for the acts of all other links.

Wheel conspiracy: A central figure (hub) has separate agreements with multiple parties (spokes). Whether this is one conspiracy or multiple conspiracies depends on whether the spokes knew of each other and had a "community of interest."

IV. Accomplice Liability

A. Common-Law Parties to a Crime

Category Description
Principal in the First Degree The person who actually commits the crime
Principal in the Second Degree A person present at the scene who aids, encourages, or assists the principal (includes constructive presence)
Accessory Before the Fact A person not present who assisted, counseled, or encouraged before the crime
Accessory After the Fact A person who assists the felon after the crime is complete, knowing the crime was committed (e.g., harboring, concealing)
Exam Tip

Modern law and the MPC have largely abolished these distinctions. Today, all parties except accessories after the fact are treated as "principals" and are equally liable. An accessory after the fact is guilty of a separate, lesser offense (obstruction of justice or harboring a fugitive).

B. Modern Accomplice Liability

Key Rule

Accomplice Liability: A person is liable as an accomplice if, with the intent to assist the principal and the intent that the crime be committed, the person aids, abets, encourages, or assists the principal in committing the crime. An accomplice is liable for the target crime AND all other crimes that are the natural and probable consequences of the crime aided (in most jurisdictions).

Actus Reus of Accomplice Liability

The accomplice must provide some aid, encouragement, or assistance. This can include:

Mere presence at the scene, even with knowledge, is generally insufficient (but presence plus some encouragement may suffice).

Mens Rea of Accomplice Liability

The accomplice must have a dual intent:

  1. Intent to assist the principal in the conduct that constitutes the offense
  2. Intent that the principal commit the underlying offense (the mental state required for the crime)
Watch Out

Natural and Probable Consequences Doctrine: An accomplice is liable not only for the intended crime but also for any other crimes committed by the principal that were a natural and probable consequence of the crime encouraged or facilitated. Example: If D encourages P to rob a store, and P kills the store clerk, D may be liable for the murder as a natural and probable consequence of the robbery.

NOTE: The MPC rejects this doctrine; accomplice liability under the MPC requires purpose with respect to the specific crime.

California Distinction

In People v. Chiu (2014), the California Supreme Court held that the natural and probable consequences doctrine cannot support a conviction for first-degree premeditated murder. An aider and abettor can only be convicted of first-degree premeditated murder based on direct aiding and abetting principles (i.e., with intent to kill or knowledge that the principal intended to kill). SB 1437 further limited accomplice liability for murder, requiring that the accomplice either: (1) was the actual killer, (2) acted with intent to kill, or (3) was a major participant who acted with reckless indifference to human life.

Withdrawal

An accomplice can avoid liability by withdrawing before the crime is committed:

Scope of Liability

V. Theft Crimes

Exam Tip

The bar exam loves testing theft crime distinctions. Many states (including California) have consolidated theft offenses into a single "theft" statute, but the bar still tests the common-law distinctions. Know the elements of each!

A. Larceny

Key Rule

Larceny: The (1) trespassory (2) taking and (3) carrying away (asportation) of (4) personal property (5) of another (6) with the intent to permanently deprive the owner of the property.

  1. Trespassory taking: The taking must be without the owner's consent. If consent is obtained by fraud or deception, it is larceny by trick (see below).
  2. Taking (caption): The defendant must gain control or dominion over the property.
  3. Carrying away (asportation): Any slight movement of the property is sufficient, even an inch.
  4. Personal property: At common law, only tangible personal property. Modern statutes extend to intangible property, services, etc.
  5. Of another: The property must belong to someone other than the defendant. Possession, not title, determines ownership for larceny purposes.
  6. Intent to permanently deprive: A specific intent, formed at the time of the taking. Intent to borrow or temporarily use the property is generally not larceny (but see "continuing trespass" doctrine below).
Watch Out

Continuing Trespass Doctrine: If D takes property with a wrongful state of mind (even without intent to permanently deprive at the time of taking) and later forms the intent to permanently deprive, larceny is committed at the time the intent to permanently deprive is formed. The initial trespassory taking is treated as "continuing."

B. Larceny by Trick

Key Rule

Larceny by Trick: Obtaining possession (but NOT title) of property through fraud, deception, or misrepresentation, with intent to permanently deprive. The victim consents to the defendant's possession but NOT to the taking because the consent was induced by deception.

C. Embezzlement

Key Rule

Embezzlement: The (1) fraudulent (2) conversion of (3) property (4) of another (5) by a person in lawful possession of the property. The key distinction from larceny: the defendant obtains possession lawfully and then converts it.

D. False Pretenses

Key Rule

False Pretenses: Obtaining title to property through a false representation of a material present or past fact, with intent to defraud. The victim parts with title (not just possession) because of the defendant's misrepresentation.

Key points:

E. Theft Crime Comparison

Crime How D Obtains Property What Passes Key Distinction
Larceny Trespassory taking (no consent) Possession Taking without permission
Larceny by Trick Consent obtained by fraud Possession only Victim gives possession (not title) through deception
Embezzlement Lawful possession, then conversion Possession (lawfully obtained) D already had lawful possession
False Pretenses Misrepresentation of fact Title Victim gives TITLE through deception
Exam Tip

The critical question for distinguishing these crimes on the exam: What did the victim give up, and how? If the victim gave up nothing (property was simply taken) = larceny. If the victim gave up possession through fraud = larceny by trick. If the victim gave up title through fraud = false pretenses. If the defendant already had lawful possession = embezzlement.

F. Robbery

Key Rule

Robbery: Larceny from a person or in the person's presence, accomplished by force or threat of immediate force. It is essentially larceny + assault. The force or threat must be used to obtain or retain the property or to effectuate escape.

  1. Taking: All elements of larceny must be met
  2. From the person or presence: The property must be taken from the victim's person or from the victim's presence (close enough that the victim could have prevented the taking)
  3. By force or intimidation: Actual force (even slight force, like snatching a purse from a resisting victim) or threat of immediate bodily harm. Threats of future harm are insufficient (that would be extortion).
  4. Intent to permanently deprive

G. Receipt of Stolen Property

Key Rule

Receipt of Stolen Property: (1) Receiving possession and control of (2) stolen property (3) with knowledge that the property is stolen (4) with intent to permanently deprive the owner. If the property has been recovered by police before the defendant receives it, it is no longer "stolen" and the defendant cannot be convicted (but may be liable for attempt).

VI. Burglary

Key Rule

Burglary (Common Law): The (1) breaking and (2) entering of (3) the dwelling house (4) of another (5) at nighttime (6) with the intent to commit a felony therein.

  1. Breaking: Creating an opening or enlarging an existing opening by even minimal force (pushing open an unlocked door). Fraud (obtaining entry by misrepresentation) satisfies this element. Entering through a wide-open door does NOT constitute a breaking.
  2. Entering: Any part of the defendant's body or an instrument used to commit the crime crosses the threshold. Even inserting a finger or a tool counts.
  3. Dwelling house: A structure regularly used for sleeping. At common law, restricted to dwellings; modern statutes expand to any building or structure.
  4. Of another: Must be someone else's dwelling. Occupancy, not ownership, controls.
  5. At nighttime: Common-law requirement; modern statutes have eliminated this element.
  6. Intent to commit a felony therein: The defendant must have the intent at the time of entry. If D breaks in to sleep and only later decides to steal, no burglary. The felony need not actually be completed.
California Distinction

California Burglary (Penal Code §459): Entering any building, room, or locked vehicle with the intent to commit grand or petit larceny or any felony. California does NOT require breaking, nighttime, or that the structure be a dwelling. California distinguishes:

  • First-degree burglary: Burglary of an inhabited dwelling (residential burglary). Always a felony.
  • Second-degree burglary: Burglary of any other building or structure (commercial burglary). Can be a felony or misdemeanor ("wobbler").

VII. Arson

Key Rule

Arson (Common Law): The malicious burning of the dwelling house of another.

  • Malicious: Intent to burn OR reckless disregard of a known risk of burning. Arson is a malice crime (not specific intent).
  • Burning: There must be a charring of the structure (damage to the fiber of the building). Mere smoke damage, scorching, or discoloration is insufficient. The fire must have been set to the structure itself (not just contents).
  • Dwelling house: At common law, restricted to dwellings. Modern statutes extend to any structure or property.
  • Of another: At common law, one could not commit arson of one's own dwelling. Modern statutes extend to burning one's own property (especially for insurance fraud).
California Distinction

California Penal Code §451 defines arson as willfully and maliciously setting fire to or burning any structure, forest land, or property. California arson extends beyond dwellings and includes burning one's own property with intent to defraud (insurance fraud) or causing fire to another's property. "Aggravated arson" involves causing great bodily injury, burning an inhabited structure, or multiple structures.

VIII. Assault and Battery

A. Battery

Key Rule

Battery: The unlawful application of force to another person, resulting in bodily harm or an offensive touching. Battery is a general intent crime—the defendant need only intend to do the act that results in the harmful or offensive contact.

B. Assault

Assault can be defined in two ways:

Key Rule

Assault (Attempted Battery): An attempt to commit a battery—an intentional act that comes close to inflicting bodily harm on another. This is a specific intent crime (intent to commit the battery).

Assault (Threat / Apprehension): An intentional creation of a reasonable apprehension of imminent bodily harm in the victim's mind. This is a general intent crime. The victim must be aware of the threat.

Watch Out

Words alone are generally insufficient for assault—there must be some overt act or gesture. Also, the victim must have a reasonable apprehension of imminent harm. Threats of future harm are insufficient for assault (but may constitute a separate crime like criminal threats).

IX. Kidnapping and False Imprisonment

A. False Imprisonment

Key Rule

False Imprisonment: The unlawful confinement of a person without consent. It is a general intent crime. The confinement must be total—blocking one exit is insufficient if the victim can leave through another reasonable exit.

B. Kidnapping

Key Rule

Kidnapping: The unlawful confinement of a person that involves either (1) moving the victim (asportation) or (2) concealing the victim in a secret place. At common law, the movement had to be substantial. Modern statutes vary in the amount of movement required.

California Distinction

California Penal Code §207 defines kidnapping as moving another person a substantial distance by force or fear. "Substantial distance" is evaluated based on the totality of the circumstances, including whether the movement: (1) increased the risk of harm, (2) decreased the likelihood of detection, or (3) was more than merely incidental to the commission of another crime. Aggravated kidnapping (PC §209) includes kidnapping for ransom, reward, or extortion and carries a life sentence.

X. Sex Crimes

A. Rape

Key Rule

Rape (Common Law): Unlawful sexual intercourse with a person, by force or threat of force, against that person's will and without consent. At common law, the victim had to be "not the wife" of the defendant (marital exemption). The common law also traditionally required proof of resistance by the victim.

Modern reforms have expanded the definition:

B. Statutory Rape

Key Rule

Statutory Rape: Sexual intercourse with a person under the age of consent. This is a strict liability crime—the defendant's mistake as to the victim's age is NOT a defense (in most jurisdictions). Consent is irrelevant.

California Distinction

Under California Penal Code §261.5, statutory rape is sexual intercourse with a minor (under 18) who is not the spouse of the perpetrator. It is a "wobbler" (felony or misdemeanor) depending on the age difference. California does NOT treat it as a strict liability offense—a reasonable and good-faith belief in the victim's age may be a defense under certain circumstances.

XI. Defenses

A. Self-Defense

Key Rule

Self-Defense: A person may use reasonable force to defend against an imminent threat of unlawful force. The elements are:

  1. Reasonable belief: The defendant reasonably believed that force was necessary to defend against an imminent threat of unlawful bodily harm.
  2. Proportional force: The force used must be proportional to the threat. Deadly force may only be used to defend against a threat of death or serious bodily harm.
  3. Imminence: The threat must be imminent—not past, not future.
  4. Not the initial aggressor: The defendant must not have been the initial aggressor, unless the defendant withdrew from the encounter and communicated the withdrawal.

Deadly Force

Retreat Doctrine

California Distinction

California follows the no-retreat rule. A person has no duty to retreat before using force, including deadly force, in self-defense. Additionally, California's Castle Doctrine (Penal Code §198.5) creates a presumption that a person who uses deadly force against an intruder in their home held a reasonable fear of imminent death or great bodily injury.

Initial Aggressor

An initial aggressor generally cannot claim self-defense unless:

B. Defense of Others

Key Rule

Defense of Others: A person may use reasonable force to defend a third party if the defendant reasonably believes that the third party has the right to use self-defense. The majority/modern view: the defender is judged based on how the situation reasonably appeared to the defender (not whether the third party actually had the right of self-defense). The minority/older rule: the defender "stands in the shoes" of the person defended and can only use force if that person was actually entitled to self-defense.

C. Defense of Property

Key Rule

Defense of Property: A person may use reasonable non-deadly force to prevent the unlawful taking of or damage to property. Deadly force may NEVER be used solely to defend property. The defendant must first request that the interference stop (unless the request would be futile or dangerous).

Watch Out

Spring guns and booby traps: A property owner may NOT use mechanical devices (spring guns, booby traps) that use deadly force to protect property. If a burglar is killed by such a device, the property owner is liable for criminal homicide. The owner can never do indirectly what would be unlawful to do directly.

D. Necessity (Choice of Evils)

Key Rule

Necessity: The defendant reasonably believed that the criminal conduct was necessary to prevent a greater harm. Elements:

  1. The defendant faced a choice of evils (harm from nature, not from a human threat—that's duress)
  2. The defendant chose the lesser evil
  3. There was no reasonable legal alternative
  4. The harm avoided was greater than the harm caused
  5. The defendant did NOT create the danger

Necessity is generally NOT a defense to intentional homicide. Under the MPC, necessity (choice of evils) IS potentially a defense to any crime if the harm avoided is clearly greater.

E. Duress

Key Rule

Duress: The defendant committed the crime because of a threat from another person of imminent death or serious bodily harm to the defendant or a close family member. Elements:

  1. A threat of imminent death or serious bodily harm
  2. The threat was from another person (not nature—that's necessity)
  3. A reasonable person in the defendant's situation would have committed the crime
  4. The defendant was not at fault in creating the situation

Duress is NOT a defense to intentional homicide (murder) at common law. The MPC allows duress as a defense to all crimes, including homicide, if a person of reasonable firmness would have been unable to resist.

F. Intoxication

Voluntary Intoxication

Key Rule

Voluntary Intoxication: A defense ONLY to specific intent crimes, where the intoxication prevented the defendant from forming the required specific intent. It is NOT a defense to general intent, malice, or strict liability crimes. Under the MPC, voluntary intoxication negates purpose or knowledge but not recklessness or negligence.

Involuntary Intoxication

Key Rule

Involuntary Intoxication: A complete defense to ALL crimes (treated the same as insanity). Intoxication is "involuntary" when: (1) the defendant was tricked or forced into consuming the intoxicant, (2) the defendant had an unexpected reaction to a prescribed medication, or (3) the defendant suffered from pathological intoxication (a grossly excessive reaction to a normal dose).

California Distinction

California Penal Code §29.4 provides that voluntary intoxication is admissible solely on the issue of whether the defendant actually formed a required specific intent or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought. Voluntary intoxication is NOT a defense to implied malice (depraved-heart) murder.

G. Insanity

Insanity is a defense that, if successful, results in a verdict of "not guilty by reason of insanity" (NGRI). The defendant bears the burden of proving insanity (by a preponderance of the evidence in most jurisdictions). There are four major tests:

Test Standard Focus
M'Naghten Rule At the time of the act, the defendant had a mental disease or defect that caused the defendant to (1) not know the nature and quality of the act, OR (2) not know that the act was wrong. Cognitive: Did D know what he was doing? Did D know it was wrong?
Irresistible Impulse The defendant had a mental disease that rendered the defendant unable to control his conduct or conform his conduct to the law, even though the defendant knew it was wrong. Volitional: Could D control his actions?
MPC / ALI Test The defendant lacked substantial capacity to (1) appreciate the criminality (wrongfulness) of his conduct, OR (2) conform his conduct to the requirements of law. Both cognitive AND volitional (broadest test)
Durham (Product) Test The defendant's act was the product of mental disease or defect. (Virtually abandoned.) "But-for" causation between mental illness and crime
California Distinction

California uses the M'Naghten test for insanity. Under California law, the defendant must prove by a preponderance of the evidence that, at the time of the offense, the defendant was incapable of (1) knowing the nature and quality of the act, OR (2) distinguishing right from wrong. The irresistible impulse test is NOT used in California.

H. Diminished Capacity

Key Rule

Diminished Capacity: Evidence of a mental condition short of insanity that negates the specific intent required for the crime. If successful, the defendant is convicted of a lesser offense (e.g., second-degree murder instead of first-degree murder).

California Distinction

California has ABOLISHED the diminished capacity defense. After the Dan White ("Twinkie Defense") case, California enacted Penal Code §28(b), which eliminates diminished capacity as a defense. However, California does allow evidence of mental illness to show that the defendant did not actually form the required specific intent, premeditation, or deliberation ("diminished actuality"). This is a subtle but important distinction—the evidence goes to whether the defendant actually formed the mens rea, not whether the defendant had the capacity to form it.

I. Infancy

Key Rule

Infancy Defense (Common Law):

  • Under 7: Conclusive presumption of incapacity—cannot be convicted of any crime.
  • Ages 7-13: Rebuttable presumption of incapacity. The prosecution can rebut by showing the child understood the wrongfulness of the act.
  • 14 and older: Treated as adults (no presumption of incapacity).

J. Entrapment

Key Rule

Entrapment: A defense when the government induces the defendant to commit a crime that the defendant was not predisposed to commit. Two tests:

  • Subjective test (majority): Focuses on the defendant's predisposition. If the defendant was predisposed to commit the crime, entrapment fails—even if the government provided the opportunity. The jury decides.
  • Objective test (MPC/minority): Focuses on the government's conduct. Was the government's conduct likely to induce a law-abiding person to commit the crime? The judge decides.
California Distinction

California uses the objective test for entrapment. The question is whether the police conduct was likely to induce a normally law-abiding person to commit the crime. The defendant's predisposition is irrelevant.

K. Mistake of Fact and Mistake of Law

Mistake of Fact

Key Rule

Mistake of Fact:

  • Specific intent crimes: ANY honest mistake of fact (reasonable or unreasonable) is a defense if it negates the specific intent.
  • General intent crimes: Only a reasonable mistake of fact is a defense.
  • Strict liability crimes: Mistake of fact is NEVER a defense.

Under the MPC: A mistake of fact is a defense if it negates the mens rea required for the offense.

Mistake of Law

Key Rule

Mistake of Law: Generally NOT a defense ("ignorance of the law is no excuse"). Exceptions:

  1. The statute was not published or made available
  2. Reasonable reliance on an official interpretation of the law (e.g., a statute, judicial decision, or official government statement later determined to be erroneous)
  3. The statute requires knowledge of the law as an element of the offense

Note: Reliance on advice of a private attorney is NOT a valid mistake-of-law defense.

XII. California-Specific Criminal Law Rules Summary

Issue Common Law / Majority California
Felony Murder All co-felons liable for killings during dangerous felonies Narrowed by SB 1437: must be actual killer, intend to kill, or be major participant with reckless indifference to human life
Provocative Act Murder Not widely recognized Recognized: D liable for deaths caused by third-party reactions to D's provocative act during felony (implied malice theory)
Diminished Capacity Recognized in many jurisdictions ABOLISHED (PC §28(b)); but "diminished actuality" evidence permitted to show D did not actually form required intent
Insanity Test Varies (M'Naghten, MPC, irresistible impulse) M'Naghten test only
Entrapment Subjective test (majority) Objective test
Burglary Breaking + entering dwelling at nighttime with intent to commit felony Entry into any building/room/locked vehicle with intent to commit theft or felony; no breaking or nighttime required
Conspiracy Bilateral (majority) or unilateral (MPC) Bilateral approach; overt act required
Duty to Retreat Majority: no duty; minority: duty to retreat No duty to retreat (stand your ground); Castle Doctrine applies
Accomplice Liability for Murder Natural and probable consequences doctrine Limited by SB 1437 and People v. Chiu; cannot use NPC doctrine for first-degree premeditated murder
Statutory Rape Strict liability (no defense for mistake of age) Reasonable, good-faith belief in victim's age may be a defense

XIII. Common Essay Patterns

Pattern 1: Multi-Party Homicide with Accomplice and Felony Murder Issues

Typical fact pattern: Two or more defendants plan a felony (robbery, burglary). During the felony, one defendant kills someone (intentionally or accidentally). A bystander, victim, or police officer may also be killed.

Issues to discuss:

  • Conspiracy to commit the underlying felony
  • The underlying felony (robbery, burglary, etc.)
  • Felony murder for the actual killer
  • Felony murder for the co-felon (agency vs. proximate cause theory)
  • California SB 1437 limits on felony murder for non-killers
  • Accomplice liability for murder under natural and probable consequences
  • Pinkerton doctrine for co-conspirator liability
  • Provocative act doctrine (California) if a third party does the killing
  • Possible defenses: withdrawal from conspiracy, lack of intent
Pattern 2: Graduated Homicide Analysis (What Degree of Homicide?)

Typical fact pattern: A single defendant kills a victim. The facts suggest possible premeditation, heat of passion, recklessness, or accident. You must work through the homicide ladder.

Issues to discuss:

  • Was there premeditation and deliberation? (First-degree murder)
  • Was there malice? (Second-degree murder: intent to kill, intent to cause SBH, depraved heart)
  • Was there adequate provocation? (Voluntary manslaughter / heat of passion)
  • Was there imperfect self-defense? (Voluntary manslaughter)
  • Was there criminal negligence? (Involuntary manslaughter)
  • Causation issues (actual and proximate cause, intervening causes)
  • Defenses: self-defense, intoxication, insanity
Pattern 3: Inchoate Crimes Fact Pattern

Typical fact pattern: Defendants plan a crime but are arrested before completing it. Or one defendant recruits another and the plan falls apart.

Issues to discuss:

  • Solicitation (complete upon asking)
  • Conspiracy (agreement + overt act; bilateral vs. unilateral)
  • Attempt (substantial step vs. mere preparation)
  • Merger rules (solicitation into conspiracy; attempt into completed crime; conspiracy does NOT merge)
  • Abandonment/withdrawal defenses
  • Impossibility (factual vs. legal)
  • Pinkerton liability for substantive crimes committed by co-conspirators
Pattern 4: Self-Defense/Defense of Others with Imperfect Claim

Typical fact pattern: Defendant kills in alleged self-defense, but the facts raise questions about whether the belief was reasonable, whether the force was proportional, or whether the defendant was the initial aggressor.

Issues to discuss:

  • Was the threat imminent?
  • Was the belief in the need for force reasonable? (Perfect self-defense = complete defense)
  • If unreasonable, was it honest? (Imperfect self-defense = voluntary manslaughter)
  • Was deadly force proportional to the threat?
  • Was the defendant the initial aggressor? Did D withdraw?
  • Duty to retreat? (Not in California)
  • Defense of others: reasonable appearance standard vs. "stand in shoes"
Pattern 5: Theft Crimes Overlap

Typical fact pattern: Defendant obtains property from a victim through various means. The facts are ambiguous as to whether the crime is larceny, larceny by trick, embezzlement, or false pretenses.

Issues to discuss:

  • Did the defendant take possession without consent? (Larceny)
  • Did the defendant obtain possession through deception? (Larceny by trick)
  • Did the defendant have lawful possession and convert? (Embezzlement)
  • Did the defendant obtain TITLE through misrepresentation? (False pretenses)
  • Was force or fear used? (Robbery)
  • Did the defendant enter a structure with intent to steal? (Burglary)
  • Receipt of stolen property issues

XIV. Issue-Spotting Checklist

XV. Exam Writing Tips

Exam Tip

Always analyze the homicide ladder from top to bottom. Start with first-degree murder and work down. Even if the defendant is clearly guilty of a lesser offense, you should explain why the higher charges do or do not apply. This demonstrates thoroughness and earns maximum points.

IRAC Structure for Criminal Law

  1. Issue: Identify the crime and the specific legal question (e.g., "The issue is whether D is guilty of first-degree murder based on premeditation and deliberation.")
  2. Rule: State the complete rule with all elements. Be precise. Include the mens rea, actus reus, and any special requirements.
  3. Application: Apply EACH element to the facts. This is where you earn the most points. Use specific facts from the question. Argue both sides when the facts are ambiguous.
  4. Conclusion: State your conclusion. On the bar, a reasonable conclusion either way is acceptable—what matters is the analysis.

Subject-Specific Tips

XVI. Mnemonics & Memory Aids

BARRK
Burglary
Arson
Robbery
Rape
Kidnapping
(Enumerated felonies for first-degree felony murder)
MALICE (Four Types of Malice Aforethought)
Intent to kill (express malice)
Intent to inflict serious bodily harm
Depraved-heart (extreme recklessness)
Felony murder (intent to commit felony)
CAVES (Duties to Act — Omission Liability)
Contract
Assumption of care
Voluntary creation of peril (created the danger)
Established relationship (special relationship)
Statute
Heat of Passion Elements: PANC
Provocation (adequate, objectively reasonable)
Actual heat of passion (subjective)
No sufficient cooling time (objective)
Causal connection between provocation and killing
Conspiracy: AIO
Agreement (between two or more persons)
Intent (to agree AND to achieve the objective)
Overt act (in most jurisdictions)
Insanity Tests: M-I-D-M
M'Naghten (didn't know nature/quality or wrong)
Irresistible Impulse (couldn't control conduct)
Durham Product Test (act was product of mental disease)
MPC/ALI (lacked substantial capacity to appreciate or conform)