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F 6.35 n1 Propriety Of Multiple Convictions For Single Solicitation Against Multiple Victims.
There is a conflict in authority as to whether a conspiracy to commit multiple criminal acts may be the predicate for multiple convictions of conspiracy. In People v. Morocco (87) 191 CA3d 1449 [237 CR 113], the court relied upon People v. Cook (84) 151 CA3d 1142 [199 CR 269], to conclude — in the context of a solicitation charge — that the question of whether one or multiple solicitations took place is a question of fact. (Id. at 1453.) In making this determination, the Morocco court concluded that the jury should be instructed to consider whether the multiple crimes were part of a “larger all-inclusive” plan with a single objective and/or motive. (Ibid.; see also People v. Miley (84) 158 CA3d 25, 31, fn 4 [204 CR 347].)
The same rationale and need for instruction applies to a conspiracy charge. “Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts “were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.” (Blumenthal v. U.S. (47) 332 US 539, 558 [92 LEd 154; 68 SCt 248]; see also People v. Skelton (80) 109 CA3d 691, 717-18 [167 CR 636].)
The same division of the First District Court of Appeal which decided the Morocco case again concluded in People v. Williams (88) 201 CA3d 439, 444 [247 CR 200], that “whether one or multiple solicitations has occurred is a question of fact.”
Two other decisions, however, conflict with Morocco. People v. Davis (89) 211 CA3d 317, 322-24 [259 CR 348], and People v. McLead (90) 225 CA3d 906, 920-21 [276 CR 187], disagreed with Morocco’s conclusion that the matter is a question of fact for the jury to determine under appropriate instruction; holding instead that the prosecutor has the authority to charge as many conflicting counts as are shown by the evidence.
CJ 6.25 and CJ 6.26 provide an instruction and form of verdict for use when there was a conspiracy to commit two or more felonies but only one offense of conspiracy is alleged.
Research Notes: See, Annotation, Solicitation to commit crime against more than one person or property, made in single conversation as single or multiple crimes, 24 ALR4th 1324 and Later Case Service.
F 6.35 n2 Solicitation: Preemption Of Prosecution For Attempted Possession.
In both People v. Sanchez (98) 60 CA4th 1490, 1497 [71 CR2d 309] and People v. York (98) 60 CA4th 1499, 1503 [71 CR2d 303] it was held that the more specific solicitation statute (PC 653f(d)) preempted prosecution under the more general statutes of PC 664 and HS 11350 (attempted possession). (See CHK IV(J).)
F 6.35 n3 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 6.35 failed to require solicitation of a specific person. (See CALJIC History CJ 6.35.)
F 6.35 n4 Solicitation: Communication Must Be Received By Intended Recipient (PC 653f).
“The plain language of section 653f, in particular the phrase ‘solicits another,’ demonstrates that proof the defendant’s solicitous message was received by an intended recipient is required for liability to attach.” (People v. Saephanh (2000) 80 CA4th 451, 458 [94 CR2d 910].) Thus, letters posted but not delivered do not give rise to the dangers from which section 653f seeks to protect society. The communication is only completed when it is received by its intended recipient. (Id. at 459.)
F 6.35 n5 Solicitation (PC 653f): Person Solicited Must Be Asked To Commit A Crime.
PC 653f(c) makes it an offense to solicit another person to commit various forcible sexual offenses. Accordingly, offering a minor money for sex is not a criminal solicitation in violation of PC 653f(c) although it may be a violation of PC 647.6 [annoying or molesting a minor] or PC 647.6(b) [soliciting an act of prostitution]. (People v. Martinez DEPUBLISHED (2002) 93 CA4th 481, 494 [113 CR2d 229].)
F 6.35 n6 Soliciting Minors To Engage In Lewd Conduct Does Not Constitute Criminal Solicitation.
Because a minor cannot violate PC 288 by engaging in lewd conduct with an adult, it follows that the adult who asks a minor to join him or her in such conduct has not committed the act proscribed by PC 653f(c); i.e., “solicit[ing] another to commit…[a] violation of section…288.” (People v. Herman (2002) 97 CA4th 1369 [119 CR2d 199].) This is so because the “essence of criminal solicitation is an attempt to induce another to commit a criminal offense. [Citations.]” [Emphasis in original emphasis.] (Ibid.; see also People v. Rocca (80) 106 CA3d 685 [165 CR 226] [defendant cannot be guilty of aiding and abetting another person who is legally incapable of committing the offense aided and abetted]; In re Meagan R. (96) 42 CA4th 17 [49 CR2d 325] [same]; cf. People v. Liu (96) 46 CA4th 1119, 1128 [rejecting the concept of a defendant being guilty of a conspiracy with a person who is legally incapable of committing the substantive crime, which includes a government agent].)
F 6.35a
Solicitation Requires Both Request And Specific Intent
*Add to CJ 6.35:
Solicitation requires both a request to commit the crime and the specific intent that it be committed.
Merely requesting someone to commit a crime does not constitute solicitation. The request must be accompanied with the specific intent that the crime be committed.
You must be convinced beyond a reasonable doubt that the defendant not only requested that the crime be committed, but also that at the time the request was made, the defendant had the specific intent that the crime be committed.
Points and Authorities
(Laurel v. Superior Court (67) 255 CA2d 292, 297-298 [63 CR 114].)
NOTES
Solicitation to commit murder requires a finding of specific intent to kill or express malice. It is error to give the jury an instruction on the elements of murder which includes definitions of both express and implied malice. (People v. Bottger (83) 142 CA3d 974, 978, 980 [191 CR 408].)
F 6.35b
Solicitation To Commit Murder
*Add to CJ 6.35:
The crime of solicitation to commit murder consists in the asking of another to commit the crime of murder, with the specific intent that the crime be committed.
You must be convinced beyond a reasonable doubt that __________ (defendant) solicited the commission of the crime of murder, with the specific intent that the crime be committed, before you may convict [him] [her] of the charge in Count I of the Information.
ALTERNATIVE FORM:
The crime of solicitation to commit murder occurs when the solicitor purposely seeks to have someone murdered and tries to engage someone to do the murder.
You must therefore find beyond a reasonable doubt:
1. That __________ (defendant) solicited __________ (person solicited) to commit the crime of murder and;
2. That __________ (defendant) purposely sought to have __________ (victim) murdered.
Points and Authorities
(People v. Miley (84) 158 CA3d 25, 33-34 [204 CR 347]; People v. Cook (84) 151 CA3d 1142, 1147 [199 CR 269]; People v. Bottger (83) 142 CA3d 974, 978-79, 981-82 [191 CR 408].)
