Exam # _____________________

Retain Exam and Answer X__

UNIVERSITY OF CALIFORNIA
HASTINGS COLLEGE OF THE LAW

FALL SEMESTER EXAM DATE: DECEMBER 7, 2016

FINAL EXAMINATION: CRIMINAL LAW

(COURSE # 11513)

PROFESSOR AARON RAPPAPORT

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TIME: THREE (3) HOURS

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CLOSED-BOOK EXAMINATION

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This Exam consists of Five Parts. Part A is 18 Multiple-Choice Questions.
Part B consists of 6 Multiple-Choice Questions.
Part C consists of 1 Short Essay Question.
Part D consists of 2 Medium Questions.
Part E consists of 1 Fact Pattern.
And Part F consists of 1 Fact Pattern
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MATERIALS ALLOWED IN THE EXAM ROOM

Internet research is NEVER allowed during an in-class exam per Hastings exam regulations.
Students are not allowed to use a (non-PDA) calculator for this exam.

This is a Closed book exam. You may not refer to any other materials while taking this exam.

GENERAL EXAM INSTRUCTIONS FOR STUDENTS

If you are using bluebooks, please write on one side only of each page and double-space your responses.
Please write legibly. If your response cannot be deciphered, it cannot be given full credit.

If you are using SofTest on a computer, your exam will be formatted automatically to double-space.

If the exam calls for a scantron, use score sheet side & #2 pencil. For ID# use your 4-digit EXAM#, flush left,
no 0s.
Test form: A. Exam#: 1. For Name: print your professor’s name. Subject: course name. Leave date blank.
Erase incorrect answers completely.

ALL exam materials including scratch paper must be turned in to the proctor at the end of the exam.

After the exam has been graded, the exam questions and answers will be retained by the college.

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Criminal Law

INSTRUCTIONS

1. This is a closed book examination. You may not refer to any other materials while
taking this exam.

2. The approximate time to complete the exam is three hours.

3. If you run out of time, outline your answers.

4. If additional information or facts are necessary to address any issue, make

appropriate assumptions and state them in your answer.

5. Finally, as my colleague Professor Kate Bloch says: “Don’t belabor the obvious or
shortchange the complex.”

Thank you for a great semester, and good luck!

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Criminal Law

QUESTION C: SHORT ESSAY QUESTION [15 minutes]

In many common law jurisdictions, attempting to commit a crime is punished at

one-half the severity of the completed crime. Thus, if robbery ordinarily receives a
sentence of 6 years in prison, attempted robbery will ordinarily receive a sentence
of 3 years. In contrast, the Model Penal Code penalizes attempt crimes at the same
level as the completed crimes. Which approach do you think is more justified? Does
it depend on whether the crime is a completed or an incompleted attempt? Explain
your answer.

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QUESTION D: MEDIUM QUESTIONS: [25 minutes]

Please answer the following 2 questions.

1. The following takes place in a common law jurisdiction. Recently, a jury

convicted Amy Adams of robbing an elderly man as he walked down the street at
night. She now awaits sentencing. The state’s penal code provides that a defendant
convicted of robbery must receive a minimum of 1 year in prison. It also states that
the maximum sentence can vary depending on whether a firearm was used in the
offense. If the judge determines that a firearm was used, the maximum sentence is
10 years in prison. Otherwise, the maximum sentence is 5 years in prison. The
penal code also states that a judge has discretion where to sentence a defendant
within the minimum and maximum ranges, but he is obligated to take into account
various factors, including whether the victim was elderly or particularly vulnerable.
In this case, the judge imposed a nine-year sentence. In doing so, the judge
affirmed: “The overwhelming evidence indicates that the defendant used a gun
during the robbery. Consequently, the maximum sentence I can impose is 10 years
and the minimum is one year in prison. Within that range, I have the discretion to
decide what the appropriate sentence should be, as long as I consider several
important factors. I have taken the relevant factors into account. Thus, in an armed
robbery case, I would ordinarily impose a sentence of 6 years. However, because
the victim was highly vulnerable, I will impose a sentence of 9 years in prison.” Will
the sentence survive constitutional review? Explain your answer.

2. The following takes place in a Model Penal Code jurisdiction. Jon Stevens was
fired from his job as a broker for the commercial real estate company Marsh &
Miller. The reason was that he was often drunk on the job. When Jon left, his boss
told him that he was no longer permitted to use the company’s computer file
system. The boss also warned Stevens not to take any proprietary materials with
him when he left. Jon really wanted to take a computer file he previously created
containing a list of potential business prospects. However, he thought that the
information might be proprietary, so he left the file behind.
Six months later, still unemployed, Jon decided to go out on his own as a real
estate broker. He remembered the computer file of business prospects he left
behind. “That would be unbelievably useful right now,” he thought to himself. But
again he hesitated to try to access the file, given the warnings he received when he
left the firm. As he ruminated over what to do, he began to drink. Several glasses of
scotch later, his thoughts on the matter changed.

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He was now certain that the company would permit him to access the
computer system to look at his own computer files. And he became convinced that
the list of business prospects was not proprietary. After all, he thought to himself,
the list wasn’t formally patented or anything.
So Jon pulled out his laptop and logged on to Marsh & Miller’s file system (his
old username and password still worked). Looking through the file directory, he
found the file name he was looking for. But before he opened the file to look inside,
he paused. “This is not a good idea,” he thought to myself. “They’ll definitely catch
me if I go any further.” So rather than open the file to look at its contents, Jon logged
off the network and closed down his laptop.
One week later, one of Marsh & Miller’s computer technicians, reviewing who
used the computer system, noticed that Jon has accessed the company’s file system.
That access was reported to police, who charged Jon with the following crime:

Penal Code 444. It is a crime to access the computer network of another

party without consent and with the purpose of copying, downloading, or
viewing materials known to be proprietary in nature.

Assume under the law of this state, the list of business prospects was actually
proprietary. Is Jon guilty of violating or attempting to violate Penal Code 444?
Explain your answer.

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Criminal Law

QUESTION E: FACT PATTERN [45 minutes]

The following takes place in a California.

Smith Sparks has long suffered from a severe psychological illness. He hears voices
in his head, has delusions that he is being chased by devils, and occasionally believes
that he alone has the ability to save the world. He has been hospitalized several
times in recent years, receiving a diagnosis of schizophrenia. Sometimes he does
things for reasons he doesn’t understand. Sometimes he does things he deeply
regrets doing. In particular, Smith has begun to light fires in public areas on several
occasions, though with only minimal property damage and no injuries. He currently
lives with his mother, Shirley Sparks. As a precaution, Shirley rarely allows Smith to
go outdoors alone.

On Sunday, however, Smith’s mother is called away to take an elderly neighbor

suffering from a digestive disorder to the hospital. Before she goes, Shirley warns
Smith not, for any reason, to leave the house. By early afternoon, however, Smith
starts to feel bored and antsy. He decides to leave the house, ultimately making his
way downtown.

He soon finds himself near a city fair. The entrance to the fair is elaborately
decorated, with two flaming torches on either side of the entry. Smith stops and
stares at the torches. He has a vision of the fair going up in flames. He feels his hand
move towards one of the torches. He tries to hold himself back, recognizing that
people could die if he starts a fire. But his hands move as if they have a will of their
own. He watches, horrified, as his hands take the torch and throw it onto a table
that contains information pamphlets. The table bursts into flames, which in turn
ignites a booth full of hemp clothing nearby. People begin to scream.

As the flames grow, Smith’s psychotic episode slowly begins to subside. Frantically,
Smith looks around for a way to undo the damage he has caused. Out of the corner
of his eye, he thinks he sees a fire extinguisher insides a car. Breaking the car
window, he reaches inside, but the fire extinguisher has disappeared. It was merely
a figment of his imagination and mental illness. Frustrated and upset, Smith tries to
regain his composure. However, as he hears the sounds of sirens approaching, he
starts to run. Before he can get far, he is tackled by alert bystanders, who hold him
until the police arrive.

The flames are finally brought under control. The fire caused thousands of dollars
in damages. In addition, an elderly man, suffering from acute asthma, died of smoke

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inhalation in an ambulance on the way to the hospital. Had the man been in
reasonable health, however, he would certainly have survived.

Assume the above facts are true and can be proved to the jury. Prosecutors are
trying to determine the appropriate charges for Smith and anyone else who might
be charged with a crime. Provide a memo that identifies the charges that can be
brought against the defendant or defendants. For each charge, discuss the strongest
arguments for and against a conviction, and discuss how you believe a court will
rule in the end.

In answering this question, please consider only the crimes we discussed in depth
during the semester, along with the following felonies:

Penal Code 459b. Automobile Burglary. Any person who breaks and enters into an
automobile, truck, or other moving vehicle with the intent of committing larceny is
guilty of automobile burglary.

Penal Code 487. Larceny. Any person who takes and carries away property of
another is guilty of larceny.

Penal Code 550. Aggravated Arson. Any person who starts a fire on public property
or the property of another with the intent to cause physical injury is guilty of
aggravated arson.

Penal Code 555. Arson. Any person who starts a fire on public property or the
property of another causing property damage of more than $50 is guilty of arson.

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Criminal Law

QUESTION F: FACT PATTERN [50 minutes]

The following events take place in California.

Stanley is having trouble making ends meet. To try to make a living, he decides to
sell drugs in his neighborhood. The trouble he faces is that another dealer – Abe
Ackerman -- already serves the neighborhood and has warned Stanley against
selling in the area.

Stanley decides that, if he is going to be successful, he will need to send a clear

message to Abe that he means business. Stanley starts by hiring his friend Dan to
serve as his driver and bodyguard for the day. Dan is a tough guy with a felony
conviction for aggravated assault. Dan doesn’t know what Stanley is planning to do,
though he realizes Stanley might be up to no good. But Dan doesn’t care -- he needs
the cash. So he readily agrees to the job.

Stanley enters the car with two concealed weapons – one in the pocket of his coat,
the other in a holster attached to his ankle. Dan is not carrying a weapon and is not
aware that Stanley has guns with him.

Stanley directs Dan to Abe Ackerman’s home. The lights in the house are dark.
Stanley declares: “I’m going to send this guy a clear message: There is a new guy in
town.” Stanley takes the gun out of his coat pocket and shoots six bullets into the
front door of the house. “This will give Abe a bit of a fright when he returns home.”
Just as they are about to drive away, however, the two hear the sound of breaking
glass from inside the house. “Uh, oh,” Stanley says. “Sounds like somebody’s home.
I wonder if they’ve been hit?” Stanley decides to enter the house to take a look
around. He leaves the gun on the car seat. “Use the gun if you need it,” he tells Dan.
Dan ignores the gun.

Stanley tries the front door. It’s open. He enters the house. A few steps inside the
door, he sees Abe slumped on the floor with a bullet wound to his chest. Abe is
dead. Stanley continues to walk into the living room. On a table, he sees a diamond
ring. “This will help pay for Dan’s wages today – and a bit more.” He puts the ring in
his pocket. Just then, Stanley hears a sound behind him. As he turns, he sees
another man – Jules Ross -- run out the door. Stanley pulls the second gun from his
ankle holster and aims at the fleeing man. He takes a shot. But it is too late: The
man has already exited the house running as fast as he can.

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Meanwhile, still in the car, Dan sees Jules run out the front door. He is concerned
that Jules might have harmed Stanley, or at the very least was a witness to the
shooting. So Dan jumps out of the car -- without taking the gun -- and begins to run
after Jules. This makes Jules even more panicked. Jules just saw his friend, Abe, shot
dead. Now he is being chased by people who likely were involved in the killing. As
he runs, Jules pulls out his cell phone to see if he can call for help.

Jules never gets a chance to make the call, however. Farther down the street, a
young woman, Carry Carr, is walking home. Carry is feeling nervous, since the
neighborhood is known for being dangerous. As a precaution, she packed a loaded
gun in her pocketbook. As she looks up, she sees Jules running towards her with a
wild look on his face and a shiny object in his hand. She thinks he is carrying a gun.

“Oh no, he is coming to get me!” Carry cries. Reacting instinctively, she pulls the gun
from her bag and shoots at the man. Jules immediately stops running, clutching his
stomach. Carry’s shot was on target, striking Jules in the stomach. Left alone, Jules
would have died within a few minutes. But before Jules dies, Dan approaches,
panting heavily. Pulling a knife from his pocket, Dan thrusts the deadly weapon into
Jules’ chest, piercing his heart and killing him instantly. The police arrive moments
later from multiple directions. They arrest Stanley, Dan, and Carry.

Assume that the above facts are true and can be proved to the jury. What charges
can plausibly be brought against the three defendants? Are those charges likely to
stick? In answering this question, please consider only the crimes we discussed in
depth during the semester, along with the following felonies:

Penal Code 246. Shooting into a residence. Any person who discharges a
firearm into a residential building is guilty of shooting into a residence.

Penal Code 459. Residential Burglary. Any person that breaks and enters
into a residence with the intent of committing larceny is guilty of residential
burglary.

Penal Code 487. Larceny. Any person who takes and carries away property
of another is guilty of larceny.

[See next page]

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Criminal Law

Penal Code 498. Felon in Possession. Any person who has been convicted of
a felony under the laws of the United States, the State of California, or any
other state, and who owns, purchases, or has possession of any firearm is
guilty of being a felon in possession.

Also, be sure to address whether any defendant can be charged with felony murder.

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