Answers to Summer 2011
California Bar Exam Questions

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Summer 2011 Bar Question 1

Crimes

Vicky operates a successful retail computer sales business out of the garage of her house. Vicky told Dan that she intended to go on vacation some days later. Dan subsequently informed Eric of Vicky’s intended vacation and of his plan to take all of her computers while she was away. Eric told Dan that he wanted nothing to do with taking the computers, but that Dan could borrow his pickup truck if Dan needed it to carry the computers away.

While Vicky was scheduled to be away on vacation, Dan borrowed Eric’s pickup truck. Late that night, Dan drove the truck over to Vicky’s house. When he arrived, he went into the garage by pushing a partially open side door all the way open. Vicky, who had returned home early from her vacation, was awakened by noise in her garage, opened the door connecting the garage to the house, and stepped into the garage. When she saw Dan loading computers into the back of the truck, she stepped between Dan and the truck and yelled, “Stop, thief!”

Dan pushed Vicky out of the way, ran to the truck, and drove off. He immediately went to Fred’s house where he told Fred what had happened. In exchange for two of the computers, Fred allowed Dan to hide the truck behind Fred’s house.

What crimes, if any, have Dan, Eric, and/or Fred committed? Discuss.

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Crimes
Question 1, Summer 2011

Crimes of Dan
Conspiracy to commit burglary.
Conspiracy is met by:
1. agreement between two or more
2. specific intent to agree
3. specific intent to commit the underlying unlawful act
4. overt act in furtherance of commission of the crime.

Dan and Eric
Agreement between two or more
Dan told E of his plan to go into Vicky’s house when she was away on vacation and take all her computers. Eric told Dan “he wanted nothing to do with taking the computers.” That could mean Eric did not agree to the crime of burglary. It could also mean that Eric did not want to be involved in the actual taking of the computers from Vicky’s house. Eric added that he would lend Dan his pickup truck in order to carry away the stolen computers. It could be argued that transporting the computers from Vicky’s house is an essential element of the burglary, and Eric’s willingness to help Dan transport the computers from Vicky’s house indicates that Eric did agree to the burglary. However, the crime of burglary is complete upon breaking and entering with intent to commit a felony. It does not require that the underlying felony of robbery or larceny actually be completed.

Eric did not agree to burglary. He agreed only to carrying away the property, which is an element of larceny or robbery, but not of burglary. Therefore, Eric did not agree to commit burglary. There was not an agreement between two or more, so Dan is not guilty of conspiracy to commit burglary.

Conspiracy to commit robbery
Conspiracy requires the specific intent to commit the unlawful act conspired to.
Robbery requires
Taking
Carrying away
Personal property of another
From his person or presence
Through force or fear
With intent to permanent deprive.

When Dan told Eric of his plan to steal Vicky’s computers, he believed Vicky would still be away on vacation. Dan did not intend to rob Vicky in person or even in her presence, since he did not think she would be at home. Neither Dan nor Eric had the specific intent to rob Vicky that is necessary for conspiracy.

Conspiracy to commit larceny
1. Agreement between two or more
Eric offered Dan use of his truck to carry away the computers. Even though Eric did not verbally say he agreed, his actions show he agreed to the larceny.

2. Specific intent to agree.
Although Eric said he wanted nothing to do with taking the computers, that does not mean he was opposed to the computers being taken by Dan. Eric loaned Dan his truck for the express purpose of carrying away the computers. This shows that Eric had the specific intent to agree.

3. Specific intent to commit the underlying unlawful act.
By offering Dan his truck Eric showed the specific intent that the crime of larceny be committed.

4. Overt act in furtherance of commission of the crime. Eric did loan Dan his truck. This satisfies the overt act.

The crime is larceny.
Larceny
Larceny is met by
Taking. D and E planned that D would take the computers.
Carrying away. D and E planned that D would borrow E’s truck to take the computers from Vicky’s house.
Personal property of another. Vicky’s computers are personal property.
With intent to permanently deprive. D intended to keep the computers, as shown by his trading two of the computers to Fred for his cooperation.

While robbery requires the property be taken from the victim’s person or presence, larceny does not. The fact that D and E expected Vicky would not be there does not prevent their guilt for conspiracy to commit larceny.

Therefore, Dan and Eric are guilty of conspiracy to commit larceny.

Conclusion: Dan and Eric are not guilty of conspiracy to commit burglary because the only thing Eric agreed to was to lend Dan his truck and asportation is not an essential element of burglary. Dan and Eric are not guilty of conspiracy to commit robbery, because neither one had the intent to take Vicky’s property when she was home.
Dan and Eric are guilty of conspiracy to commit larceny because Eric did agree to the plan to lend Dan his truck in order to transport the computers.

Dan and Frank conspiracy
Agreement
Dan and Fred verbally agreed to hide Eric’s truck behind Fred’s house. Fred was aware Dan had burglarized Vicky and he agreed to hide the truck. This is an agreement.

Specific intent to agree. Fred intended to agree with Dan.

Specific intent to commit the underlying unlawful act. Fred did not know of the burglary until after Dan had committed it. The question is whether the burglary was still in progress when Dan told Fred what had happened. On one hand, Dan had already broken in, taken the computers and driven away from Vicky’s. Arguably, the crime was already completed at that point. What Dan needed Fred for was to avoid detection. Since the essence of conspiracy is that the parties agree to a crime before committing the crime, it is unlikely that Fred agreed to the burglary before it occurred.

Conspiracy requires that the conspirators agree to the crime before it occurs. Here, F had no knowledge of the crime until after Dan completed it. Therefore Dan and Frank did not agree to conspiracy to burglary. Frank is not guilty of conspiracy. Because conspiracy requires an agreement between two or more, Dan is not guilty of conspiracy based on his association with Frank.

Dan’s other crimes
Burglary
Burglary is the breaking and entering of the dwelling of another at night with intent to commit a felony therein.

Breaking. Breaking is met when the defendant increases the opening, however slight. Here, the garage door was partially opened and Dan opened it wider to enter. Therefore, breaking is met.

Entering. Dan took all of the computers from the garage so he must have entered the garage. Therefore, this is met.

Dwelling. At common law, only a dwelling, meaning a structure where people slept, could be the subject of burglary. Here, Vicky operated a retail sales business out of her garage. Therefore, it is not a dwelling. However, the common law also included as part of the dwelling the area adjacent to the house, the so-called curtilage. Here, Vicky’s garage is connected to the house. Even under common law, the garage would be part of the dwelling.

Therefore, even under the common law, the garage here would be part of the dwelling. Element met.

Night. Vicky was asleep and was awakened when she heard Dan in the garage. It can be assumed it was nighttime. However, under modern statutes, the nighttime requirement has been eliminated. Therefore, the nighttime element is met.

Intent.
For Robbery. Dan did not expect Vicky to be at home at the time he broke in, so Dan did not intend to commit robbery.

For Larceny. Dan told Eric he plannned to steal all Vicky’s computers. He intended to commit larceny.

He broke into the garage with the pick up truck he borrowed in order to transport Vicky’s computers. He timed the break-in for when he thought Vicky was away. There is sufficient extrinsic evidence to show Dan intended to commit the felony of larceny at the time he broke in.

Therefore, Dan is guilty of burglary.

Robbery
Robbery is taking and carrying away the personal property of another from her person or presence through force or fear with intent to permanently deprive.
Taking. Dan took Vicky’s computers.
Carrying away. Dan drove off with the computers.
Personal property of another. The computers are Vicky’s personal property.
Person or presence. On one hand, Dan loaded the computers in the pick up truck while Vicky was in bed in the house. On the other hand, Vicky awoke while Dan loaded the computers and stood between Dan and the truck and said, “Stop, Thief!” in order to prevent Dan from leaving with the computers. Therefore, he took the computers from Vicky’s presence.
Force or Fear. Dan pushed Vicky out of the way so that he could carry away the computers. That is sufficient force to make Dan guilty of robbery.
Intent to permanently deprive. Dan told Eric he planned to steal Vicky’s computers. He hid them in the pick up truck in order to keep them, and he promised to give two of them to Fred as the price of hiding them. Therefore, Dan intended to permanently deprive Vicky of her computers.
Therefore, Dan is guilty of robbery.

Larceny
Larceny is met by
Taking
Carrying away
Personal property of another
With intent to permanently deprive.
These elements are established as part of robbery, above.
Therefore Dan is guilty of larceny.

Battery
Battery is a harmful or offensive touching. It is met by:
Act, Intent, Causation.
Act. Dan pushed Vicky.
Intent. Intent is met by intent to do the act. Here, Dan intended to get Vicky out of his way so he could leave her garage with the computers. Therefore, he intended to push Vicky.
Causation. Causation is met when defendant’s act brought about the harm. Here, Dan’s act of pushing Vicky caused her to be pushed.

Conclusion: Dan is guilty of burglary, robbery, larceny and battery.

Eric
Co-conspirator guilt.
A co-conspirator is guilty for the crime he conspired to as well as any other crimes that are a natural and probable consequence of the crime he conspired to.

Larceny.
As discussed above, Eric conspired with Dan to commit larceny. Therefore, Eric is guilty of larceny as Dan, as a co-conspirator.

Robbery
On the one hand, Dan and Eric did not expect Vicky to be home so robbery is not a natural and probable consequence of their conspiracy.

On the other hand, all it takes to turn a larceny into a robbery is for the victim to be present when she was not expected. It may be that the similarity of the two crimes makes a robbery a likely consequence and therefore a natural and probable consequence of the conspiracy.

Therefore, Eric may be guilty of robbery.

Battery
If robbery is a natural and probable consequence, then battery would be also.

Therefore, Eric may also be guilty of battery.

Accomplice
An accomplice is one who aids the principal in commission of a crime, either before or during the crime, with the intent to aid the crime, and with the intent that the crime be committed.

Aid. Eric lent Dan his truck so that Dan could transport the computers after the burglary. Element met.

Intent. Eric intended to aid Dan, with the knowledge he would be using the truck to commit burglary.

Intent of crime. Burglary is a specific intent crime. Eric specifically sid he wanted nothing to do with taking the computers. However, lending Dan the truck gave him the means to commit the burglary. Even though Eric did not have the specific intent to agree to the burglary for conspiracy guilt, the help he provided shows that he had the specific intent that a burglary be committed, for accomplice guilt.

Conclusion: Eric is guilty of accomplice liability for burglary.

Accomplice liability
An accomplice is also guilty for all the crimes that are a natural and probable consequence of the crime he aided, and for which the principal is guilty.

Here, Dan is guilty of burglary, robbery, larceny, and battery. They are all natural and probable consequences of the burglary that Eric aided. Therefore, Eric is also guilty of burglary, robbery, larceny and battery.

Fred
Conspiracy. As discussed above, Fred did not know about the crime in advance. Therefore he is not guilty of conspiracy.

Accomplice.
Fred did not help Dan before the crime or during the crime. Therefore, he is not guilty of accomplice liability.

Principal in the second degree
A principal in the second degree is one who assisted the principal and was actually or constructively present during the crime. Here, Fred was not present. Therefore he is not a principal in the second degree.

Accessory after the fact
An accessory after the fact aids, knowing that a crime has been committed, generally to help cover up the crime or harbor the fugitive.

Aiding a principal. Fred helped Dan by hiding the truck used in the burglary.

After the crime. Dan had completed the crime when he arrived at Fred’s house and Fred helped him.

With the intent to aId. Intent can be shown by a stake in the outcome. Here, Fred was going to be paid two computers for helping Dan hide the truck. Therefore, Fred had the intent to aid.

Conclusion: Fred is liable as an accessory after the fact and has no vicarious liability for any other crimes of Dan.

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