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Criminal Law
University of California, Hastings School of Law
Diamond, John L.

Criminal Law – Diamond – Spring 2012

Crime = Voluntary Act + Mens Rea (state of mind / intent) + Results

Voluntary Acts

I. CL: An act or omission of an act (where there is a legal duty to act) is required for a crime.

a. Omission à legal duty; NOT moral duty to act

II. MPC: physically capable of committing a voluntary act or omission

a. Sleepwalking/unconscious/Hypnosis/brainwashing are difficult defenses but are NOT voluntary acts

b. DA can introduce past behavior to counter the defense.

III. Omission = crime: (1) statute imposed (MPC), (2) special relationships, (3) contractual duty, (4) voluntary assumption of care / secluded person as to prevent others from rendering aid, (5) D’s status as a landowner, (6) duty to control 3rd parties such as employees or children, OR (7) D’s creation of the peril.

IV. Generally no obligation to report a crime

Intent (Mens Rea) – don’t punish thoughts alone

I. MPC Culpability Standards

a. Not guilty of an offense unless he acted purposefully, knowingly, recklessly, or negligently as the law requires with respect to each element of the offense:

b. Purposely (sought the consequences)

c. Knowingly (aware of the consequences/ incl. deliberate ignorance

d. Recklessly (Consciously disregarded substantial risk = gross deviation from standard of conduct that a law-abiding citizen would observe)

e. Negligently (should know risk and acted irresponsibly given the conduct and circumstances / failure to perceive is gross deviation from standard of care that RP would observe)

f. Motive is different from intent: motive does not negate/enhance the intent element

i. Good motive BUT still committed a crime with intent è still busted.

g. Criminal negligence involves 3 factors: (1) D’s role in creating risk, (2) proximity of harm to D’s acts, and (3) Predictability of harm

II. CL Culpability

a. General intent: intention to do the act / crime

i. Ex: battery = intent to do bodily harm; nothing extra

b. Specific intent: Required “mens rea” in the “elemental” sense

i. Ex: larceny = intent to deprive permanently;

Defenses Based on Mens Rea

I. Mistake of Fact

a. MPC – mistake only needs to be LESS than culpability of the crime.

i. Purposeful / Knowing – honest (can be unreasonable)

ii. Reckless – mistake must not be reckless

iii. Negligence – mistake must be reasonable

iv. Exception – Multiple Crimes:

1. NOT available if the actor would be guilty of another offense, had the circumstances been as he supposed.

2. However, MPC only permits punishment at the level of the lesser offense. (CL: legal-wrong doctrine permits punishment for the higher offense).

b. CL

i. General intent: honest (sincere) + reasonable

ii. Specific intent: Honest only (can be unreasonable)

1. Thought the Picasso was mine when I stole it but it wasn’t, no crime.

c. Strict Liability crimes àmistake of fact is NEVER a defense.

II. Mistake of Law

a. Reasonable PLUS: Reliance on a statute later interpreted as invalid // Court interpretation later overturned // Interpretation by public officer / agency authorized to interpret // Unpublished law // Statute says understanding/knowledge of the law is an element // Coming to the aid of a police officer when summoned

b. Maj: Reliance on attorney advice à NOT MoL defense

c. Ignorance of law is not a defense

d. Lambert Exception – MoL Defense OK – essentially allows an ignorance of law defense. If the nature of the law makes otherwise perfectly legal actions illegal for some people àactual knowledge (reasonable notice) of the law is required to be convicted.

i. No genuine opportunity to comply with the law.

III. MPC No MoL/MoF categories à either are a defense if it NEGATES the mens rea required to establish a material element of the offense.

a. Most crimes do NOT require proof that the D was aware of the law à result = mistake of law will rarely negate the mens rea required

IV. Intoxication

a. Voluntary: CL – negates specific intent in some jxs // general intent: never a defense.

b. MPC: VI à can negate a mens rea of purpose or knowledge; Cannot negate recklessness (b/c being intoxicated is reckless act)

i. Lower culpability level // Diamond: Honest mistake is easier to make when drunk

c. Involuntary: Universally a defense if it negates the mens rea required

i. Addiction generally insufficient for the defense.


I. MPC elements:

a. Unlawful taking / disposition of movable property

b. Unlawfully takes or exercises unlawful control over movable property of another with purpose to deprive permanently.

c. Consolidated theft – guilty of theft if any of the theft crimes is established.

II. CL elements:

a. A trespassory

b. Taking – exerting control

c. And carrying away (asportation)

i. CL: every part must move (Spinning a donut vs. pie example)

ii. MPC: no asportation // instead “exercising unlawful control”

d. Of the personal property (goods and chattels)

i. Trad: Tangible & Movable items – livestock, energy included

1. NOT information / labor / services / info / stocks / bonds / animals reduced to possession (pets)

ii. CA: Trade secrets / information

iii. MPC: anything of value

iv. Use of personal property à generally not larceny

v. Originally fruit connected to the soil was not larceny b/c it was real property.

1. CL: Taking / carrying away simultaneously of something connected to the soil was not larceny

e. Of another person

i. Even if D has title, if D takes it from someone w/ superior right of possession that is larceny.

ii. Theft of stolen property à larceny (PP: discourage self-help)

iii. Trad: no theft between spouses

iv. MPC: spouses can be liable for larceny.

f. With the intent to deprive the owner of the property permanently

i. Continuous taking: Act of taking continues so long as D continues to have possession of the property [intent can form at any time]

ii. Borrowing: must return in reasonable amount of time

iii. Ability to Return: “Permanently” = (1) property’s useful life, (2) exposing property to risk such that return is impossible, (3) placing unacceptable conditi

m to property

c. Trap: Actual misrep required

i. Said it was a Picasso, but thought it wasn’t à turned out to really be a Picasso, so it was an attempted misrep (Crook was dumb)

II. Of a present or past material fact

a. Trad: act promised in the future à NOT misrep

b. MPC: Future promise à representation of present state of mind / present fact

c. “Puffing” or expressions of opinion à NOT misrepresentation

i. Expert opinions may be subject to misrepresentation

III. With the intent to defraud the victim (negated by claim of right defense),

a. D knew the misrep false // Knew he didn’t know if true/false but rep’d as true // Intended to take something he knew belonged to someone else or had no right to

b. No intent if D intends to unconditionally return w/i reasonable time.

c. Maj: Reckless misrep NOT enough

d. MPC: intent to deprive must exist at time of taking

IV. Where the victim relies on the misrepresentation in

a. Victim must believe the misrep is true

b. Maj/CA: Reliance does NOT need to be reasonable

c. Min: reliance needs to be reasonable

d. If victim does NOT believe / thinks D is lying à no reliance

V. Transferring title to some property.

a. Borrowing does NOT fall under this doctrine.

b. Larceny by trick à obtain possession of the property; not title

Theft Crimes – Theft Consolidated

I. CPC / MPC: Consolidation of theft crimes for larceny, false pretenses, and embezzlement

a. Cannot be guilty of larceny, false pretenses, and embezzlement

b. Creates one umbrella crime // easier for prosecutors to charge theft and

c. Some jurors can find you guilty of embezzlement / others of larceny à still guilty


I. CL Elements: (in the past it was theft + assault)

a. Larceny (6) + 2 additional (Intent to steal after the killing à no robbery)

b. (1) Taking must be accomplished by force; OR

i. Trad: Force must happen in the commission // force to escape does not count (b/c considered a separate event)

ii. Modern: force to escape counts b/c part of same event

iii. MPC: Must inflict SBI // threaten another with SBI or put in fear of SBI // Commits / threatens immediately to commit any crime of the 1st or 2nd deg.

1. Act = “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

iv. Generally, no force if you take from dead body, BUT if you caused the death and then steal right after à robbery.