By: Diana Aizman
Conspiracy under Penal Code 182 pc is an agreement between two or more people to commit a criminal act and an act taken by one or more parties of a conspiracy in furtherance of one or more of the criminal objectives of the conspiracy.
Penal Code 182:
182. (a) If two or more persons conspire:
(1) To commit any crime.
(2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime.
(3) Falsely to move or maintain any suit, action, or proceeding.
(4) To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses or by false promises with fraudulent intent not to perform those promises.
(5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.
(6) To commit any crime against the person of the President or Vice President of the United States, the Governor of any state or territory, any United States justice or judge, or the secretary of any of the executive departments of the United States.
They are punishable as follows:
When they conspire to commit any crime against the person of any official specified in paragraph (6), they are guilty of a felony and are punishable by imprisonment pursuant to subdivision (h) of Section 1170 for five, seven, or nine years.
When they conspire to commit any other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony the defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.
If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term.
When they conspire to do an act described in paragraph (4), they shall be punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine.
When they conspire to do any of the other acts described in this section, they shall be punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170, or by a fine not exceeding ten thousand dollars ($10,000), or
by both that imprisonment and fine. When they receive a felony conviction for conspiring to commit identity theft, as defined in Section 530.5, the court may impose a fine of up to twenty-five thousand dollars ($25,000).
All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect the conspiracy shall be done.
(b) Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence.
How Does the Prosecutor Prove Conspiracy?
To prove that you are guilty of conspiracy under section 182 pc of the Penal Code, the prosecutor has to prove the following facts or elements1:
- The defendant intended to agree and did agree with one or more member2 of the conspiracy to commit a crime3
- At the time of the agreement, the defendant and at least one other member of the conspiracy intended that one or more of them would commit the crime4;
- The defendant or another member of the conspiracy committed an overt act in furtherance of the agreement to commit a crime5
- The overt act was committed in California.
Examples of “Conspiracy”
- Abe and Bill planned to rob a bank. They drew up a map of the premises and brought on Charles to remotely disable the video cameras in the bank. The communicated desire and deliberate planning to rob the bank fulfills the elements of agreement and intent; and the drawing of the map and disabling of the video cameras fulfills the element of an overt act. Assuming that Charles knew that the reason he was asked to disable the cameras was to rob the bank, all three can be charged with conspiracy.
- James told Howard that he plans to kidnap his neighbor Mary and that he will need to borrow Howard’s pick-up truck to do so. Howard agreed and suggested that James should use Howard’s house to keep Mary there until her husband pays the ransom amount. The two then wrote a ransom letter and prepared a room in the house where they will keep Mary once she has been kidnapped. The fact that Howard agreed to help James carry out the crime of kidnapping and suggested ways to successfully do so fulfills the elements of agreement and intent. Moreover, the drafting of the ransom letter and preparing of the room are each sufficient acts that can fulfill the overt act element.
- But distinguish the previous example from one where James and Howard agree to kidnap Mary, and Howard suggests that they use his house to keep her there, but no further actions are taken. In this example, although the two agreed to kidnap Mary and even planned the kidnapping, because they but took no overt acts beyond the planning, such as writing a ransom letter or preparing a room in the house where they will keep Mary, they cannot be convicted of conspiracy.
Who Can be Charged with Conspiracy?
- A member of a conspiracy can still be convicted of a conspiracy even if the underlying crime has not been committed. A conspiracy and the target offense of the conspiracy are two separate charges.
- A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime. A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act. 6
- A member of a conspiracy does not have to personally know the identity or roles of all the other members to be convicted of conspiracy.
- The defendant is not responsible for the acts of another person who was not a member of the conspiracy even if the acts of the other person helped accomplish the goal of the conspiracy.
- A conspiracy member is not responsible for the acts of other conspiracy members that are done after the goal of the conspiracy had been accomplished.
Legal Defenses to Conspiracy Charges
There are several defenses that your attorney can assert on your behalf to fight a charge of conspiracy.
Here are the most common ones:
- Withdrawal: The defendant is not guilty of conspiracy to commit a target offense
if he/she withdrew from the alleged conspiracy before any overt act was committed. 7 To withdraw from a conspiracy, the defendant must truly and affirmatively reject the conspiracy and communicate that rejection, by word or by deed, to the other members of the conspiracy known to the defendant. A failure to act is not sufficient alone to withdraw from a conspiracy. The prosecutor has the burden of proving beyond a reasonable doubt that the defendant did not withdraw from the conspiracy before an overt act was committed. If the prosecutor has not met this burden, the defendant cannot be found guilty of conspiracy. If the prosecutor has not met this burden, the defendant cannot be found guilty of the additional acts committed after he/she withdrew.
Example: Jake and Bill conspire to kill Sam. They purchased a gun with which to murder Sam and stole a car in which they planned on dumping the body. On the morning that the murder is supposed to take place, Jake changes his mind and tells Bill that he does not want to kill Sam anymore and that Jake should not do it either. Jake can still be convicted of the conspiracy even though he has withdrawn because he did so only after purchasing the gun and stealing the car which are both overt acts he and Bill committed in furtherance of the conspiracy.
- Mistake of law: One of the elements of conspiracy under California law is that members of a conspiracy agree to commit a crime. It follows then that a defendant cannot be convicted for conspiracy if he did not know that what he was conspiring to do was illegal.
Example:James told Howard that Sam stole his lawn mower and asked Howard to go into Sam’s garage to take back his lawn mower. As a result of retrieving the lawn mower, Howard is accused of conspiring to rob Sam. Because Howard was actually trying to retrieve chattel that James told him belongs to him, a court may conclude that Howard had a good faith belief that the law allows self-help in such situations.
- Falsely Accused: If you were falsely accused of conspiracy but you were never involved in the conspiracy, you cannot be convicted of the charge because the prosecution will have the burden of proving that you actually agreed to and intended to commit the crime.
- There was no agreement: Because one of the elements of conspiracy is that the parties agree to commit the underlying crime, if the prosecutor cannot establish this element, the defendant(s) cannot be convicted of conspiracy. Just because a crime was committed and several people were involved, it does not necessarily mean that they had an agreement to commit the crime.
- There was no overt act committed toward the crime: Even if the element of agreement is proven, if the co-conspirators did not take an overt act towards the commission of the crime, they cannot be convicted of conspiracy.
Example: James and Howard agree to kidnap Mary, and Howard suggests that they use his house to keep her there, but no further actions are taken. Although the two agreed to kidnap Mary and even planned the kidnapping, because they but took no overt acts beyond the planning, such as writing a ransom letter or preparing a room in the house where they will keep Mary, they cannot be convicted of conspiracy.
Penalties, Punishment and Sentencing Guidelines for Conspiracy
California Penal Code Section 182 pc sets forth different penalties for different types of conspiracies:
- Conspiracy against a government official: When they conspire to commit any crime against the person of any official specified in paragraph (6), they are guilty of a felony and are punishable by imprisonment pursuant to subdivision (h) of Section 1170 for five, seven, or nine years.
- Conspiracy to commit fraud: When they conspire to do an act described in paragraph (4), they shall be punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine.
- Conspiracy to commit more than one felony: If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term.
- All other acts of conspiracy: When they conspire to do any of the other acts described in this section, they shall be punishable by imprisonment in a county jail for not more than one year, or pursuant to subdivision (h) of Section 1170, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine.
- Conspiracy to commit identity theft: When they receive a felony conviction for conspiring to commit identity theft, as defined in Section 530.5, the court may impose a fine of up to twenty-five thousand dollars ($25,000).
How We Can Help
At the Aizman Law Firm, our experienced conspiracy attorneys have significant experience defending clients charged with conspiracy under California penal code 182 pc. In consultation with our clients, we come up with the most effective defense strategy for your case.
If you need to speak to a criminal defense attorney about your case, please call our office at: (818) 351-9555 for a Free Consultation.
- Elements. Pen. Code, §§ 182(a), 183; People v. Morante (1999) 20 Cal.4th 403, 416 [84 Cal.Rptr.2d 665, 975 P.2d 1071]; People v. Swain (1996) 12 Cal.4th 593, 600 [49 Cal.Rptr.2d 390, 909 P.2d 994]; People v. Liu (1996) 46 Cal.App.4th 1119, 1128 [54 Cal.Rptr.2d 578].
- But note that under the Wharton’s Rule, if the cooperation of two or more persons is necessary to commit a substantive crime (e.g., adultery, bigamy, or dueling) and there is no element of an alleged conspiracy that is not present in the substantive crime, then the persons involved cannot be charged with both the substantive crime and conspiracy to commit the substantive crime. (People v. Mayers (1980) 110 Cal.App.3d 809, 815 [168 Cal.Rptr. 252] [known as Wharton’s Rule or “concert of action” rule]).
- The prosecutor must prove that the members of the alleged conspiracy had an agreement and intent to commit the crime. However, the prosecutor does not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit the alleged crime. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime(s).
- Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy. Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy. Association Alone Not a Conspiracy. People v. Drolet (1973) 30 Cal.App.3d 207, 218 [105 Cal.Rptr. 824]; People v. Toledo-Corro (1959) 174 Cal.App.2d 812, 820 [345 P.2d 529]
- An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime but before the completion of the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself. The act itself does not have to be criminal in nature. Overt Act Defined. Pen. Code, § 184; People v. Saugstad (1962) 203 Cal.App.2d 536, 549–550 [21 Cal.Rptr. 740]; People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8 [134 Cal.Rptr. 784, 557 P.2d 75]; see People v. Brown (1991) 226 Cal.App.3d 1361, 1368 [277 Cal.Rptr. 309]; People v. Tatman (1993) 20 Cal.App.4th 1, 10–11 [24 Cal.Rptr.2d 480].
- A “natural and probable consequence” is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan. Natural and Probable Consequences; Reasonable Person Standard. People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 842–843 [68 Cal.Rptr.2d 388]; see People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [26 Cal.Rptr.2d 323] [in context of aiding and abetting].
- Withdrawal From Conspiracy as Defense. People v. Crosby (1962) 58 Cal.2d 713, 731 [25 Cal.Rptr. 847, 375 P.2d 839].