Do you need a Criminal Defense Attorney who Understands Inchoate Criminal Offenses (Attempt, Solicitation, and Conspiracy) and Inchoate Defenses in California?
Do you have a legal problem with a criminal charge of attempt, solicitation, or conspiracy? Do you need the assistance of a criminal defense attorney who understands the California laws with respect to attempt, solicitation, or conspiracy charges? Our office has can help! If you have a legal problem with a crime of attempt, solicitation, or conspiracy you should contact a criminal defense lawyer in order to make sure your penal interests are adequately protected. Should you require the services of a criminal defense attorney please feel free to contact our office. We have a lawyer who can assist you with your legal trouble.
Certain crimes are anticipatory in nature; Accordingly, a person can still incur criminal liability, even if the target crime is not completed. These are called inchoate crimes. The inchoate crimes are solicitation, attempt, and conspiracy. All of these crimes require a specific intent to commit the target offense.
Solicitation
When you entice, encourage, request, urge, or command someone to commit a crime, you can be found guilty of solicitation. Even though there is an anticipatory element involved, the fact that you had the specific intent to cause a crime to be committed incurs criminal liability. Moreover, the crime is completed at the moment you make the request. For example, if you request someone to embezzle funds from his employer, you are instantly guilty of solicitation of the crime of embezzlement. Usually, there are no defenses that exist for the crime of solicitation. However, if you can prove you did not have the specific intent to do the crime of which you are charged, this element will be missing from the prosecution’s case, and you should be found not guilty.
Conspiracy
Conspiracy is a crime involving an agreement and a target offense. It is anticipatory, because the target crime has not yet occurred. At common law, a defendant is guilty of conspiracy if he agrees with at least one other person to commit a crime, and if he concurrently has the specific intent that the target crime occur. Because the common law requires at least two guilty persons for the crime of conspiracy, there can never be a conspiracy of one. Modernly, however, some jurisdictions follow the Model Penal Code, which allows a conspiracy of one, so long as all other elements are met (specific intent and agreement on the part of the defendant).
Similarly to solicitation, a conspiracy is also completed at the instant the agreement is made to commit the target offense while having the specific intent. The majority of jurisdictions today also require that an overt act be committed in furtherance of the agreement. It should be noted that even if someone does not know all the members of a conspiracy in which he is involved, he can still be held liable under certain theories of liability. Also, some jurisdictions apply the Wharton theory of liability. Under this theory, no liability for conspiracy will result if the target crime required exactly two persons in its definition, for example, and one additional person not required for the crime’s definition is not involved in the conspiracy. As an example, there can be no liability for conspiracy to commit bigamy using the Wharton theory unless a third person not required for the bigamous marriage to take place is involved in an agreement. Note also, that under the Pinkerton rule, all conspirators are liable for all crimes committed in furtherance of the conspiracy.
A conspiracy is always its own separate crime. It never merges with a completed offense. Once the target crime has been committed, a defendant will now face liability for two offenses: the conspiracy, and the completed offense.
Attempt
An attempted crime is an uncompleted crime. An attempted crime occurs when the defendant has the specific intent to commit a target offense, and he also performs a substantial step toward the commission of the crime. The defendant will be found liable if he also had the apparent ability to commit the offense. Attempt is similar to solicitation, in that both inchoate offenses merge into the completed crime. So, for example, you cannot be found guilty of attempted arson and arson.
The requirement of a substantial step means that the defendant must undertake some affirmative act that goes beyond simply preparing to commit the target crime. A defendant will not be found guilty of attempted arson if he was found with containers of gasoline in his home, along with lots of matches and detailed maps of forested areas. Possession of such items is not a crime, even though the defendant’s acts may appear suspicious. However, if the defendant is found pouring gasoline onto a forested area, he will probably be found guilty of attempted arson, even if the fire was never lit.
Defenses to Inchoate Crimes
A defendant may assert a defense of impossibility. He may, for instance, argue that the target offense could not possibly have occurred, no matter how hard the defendant worked to commit it. If he argues that the impossibility was based on the fact that what the defendant was about to commit was not in fact a crime, he is asserting the defense of legal impossibility. At common law, and today, legal impossibility is a complete defense to both conspiracy and attempt. For example, if you and your friend make an agreement to have sex with a 19-year-old woman, neither of you can be found guilty of statutory rape, because having sex with a 19-year-old woman is not a crime.
However, a defense of factual impossibility will not be successful under traditional common law rules, nor in today’s jurisdictions. The defense of factual impossibility is asserted when the defendant argues that, after agreeing to commit, or attempting to commit the target offense, it was impossible for him to complete the crime because of facts unknown to him at the time of the agreement, or at the time he attempted the crime. The reason this is no defense is that, had the facts been as the defendant believed them to be, the target crime would have actually occurred. So, factual impossibility is never a defense to conspiracy or attempt.
Another defense that can be asserted is withdrawal. A defendant may assert that he withdrew from the conspiracy, and thus should not be found guilty of conspiracy. He can assert a similar argument against a charge of attempt. In jurisdictions that follow the common law, withdrawal is no defense to criminal conspiracy or criminal attempt. As an example, suppose you conspired to commit larceny in the victim’s hotel room. Just before entering the hotel lobby, you got cold feet and communicated your desire to withdraw from the planned crime. At common law, even if you turned and ran away, meaning you actually withdrew and the co-conspirators went ahead with the crime, you will still be found liable for both the conspiracy (to commit larceny) and for the completed crime of larceny, because of your earlier agreement.
There are some jurisdictions that today recognize a withdrawal defense under the Model Penal Code. These jurisdictions hold that a complete, effective withdrawal from a planned crime can limit a defendant’s liability to the point where he effectively withdrew. The defendant, although guilty of the conspiracy, will not be found liable for subsequent crimes. For example, a defendant who communicates his withdrawal from a conspiracy to commit arson to the other conspirators, and even works to hinder the occurrence of the target crime, such as by notifying the police and fire station, will not be found liable in these jurisdictions if the conspiracy results in the intended arson.
