Think of a crime that is meticulously planned but prevented from being carried out by law enforcement just in time. In California, prosecutors do not need to wait for a criminal act to be fully executed before making an arrest. Penal Code Section 182 allows prosecutors to pursue conspiracy charges when two or more people agree to commit a crime and at least one co-conspirator takes an open action to advance the agreement.
In legal circles, conspiracy is often referred to as the "darling of the prosecutor's nursery" because it gives the state an exceptionally broad scope to file charges. A conspiracy is generally complete when there is an unlawful agreement and at least one conspirator commits an overt act to advance the plan.
It is important to understand the distinction between casual conversation and conduct that may constitute criminal conspiracy. The following information explains this in detail.
What Does the Prosecutor Have to Prove in a Conspiracy Case?
To secure a conviction, prosecutors cannot rely on vague association or suspicious behavior. They have to meet the very tough burden of proof. To prove conspiracy, the prosecutor must establish three separate elements beyond a reasonable doubt, as set forth in CALCRIM 415 (the official California criminal jury instructions).
Conspiracy is considered a specific intent crime, and whether there was a conspiracy in mind is the main issue in the trial.
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An Agreement
The basic elements of any conspiracy are two or more individuals agreeing to perform a crime. Evidentiary-wise, the prosecution does not need to present a written contract, an audio recording, or even an explicit verbal acceptance.
Legally, a mutual understanding can be completely implicit. An agreement may be proven through circumstantial evidence, but prosecutors must show more than mere shared intentions. There has to be an unspoken agreement between two parties to commit a crime together.
The prosecutor will try to establish your agreement solely on circumstantial evidence, such as the following:
- Coordinated actions
- Communications
- Conduct suggesting a common criminal plan or a coordinated presence at a scene
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Specific Intent
The prosecutor must prove that you did agree to an act and that you had a specific intent when you did so on two separate levels:
- You intended to enter into the agreement
- When you agreed, you actually wanted and planned to commit or complete the targeted crime
This requirement protects you against an erroneous conviction based on casual bravado, dark humor, or a hypothetical discussion. Joking or casually discussing a crime without any genuine intent to carry it out is generally insufficient to establish conspiracy, even if one actually goes to rob a bank. The state must prove you were deadly serious about bringing the criminal plan to fruition.
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The Overt Act
A conspiracy charge cannot be brought against you just for your thoughts and conversation. The prosecution must prove that at least one member of the alleged conspiracy committed an overt act to advance the plan.
Overt acts are intentionally understated, so they often come as a surprise to defendants.
- The act does not have to be illegal — An overt act may consist of an otherwise lawful action, like purchasing supplies or scouting a location, if done to advance the criminal plan.
- It must happen after the agreement — The act must happen after you make the agreement and before the target crime is either completed or abandoned. Under conspiracy law, the overt act of one conspirator may satisfy the overt-act requirement for all conspirators. It does not have to be a physical act for you. When another person in the group takes one step forward to further the plan, once you agree, you have completed your part in the crime of conspiracy.
The Overt Act Element of Criminal Conspiracy Under California Law
The distinction between a harmless conversation and a serious felony is purely a matter of one legal term: the overt act. Under state law, you cannot be arrested or convicted for having a bad thought or even hypothetically discussing it. The law demands proof of the intent in the form of a physical act. An overt act serves as evidence that the alleged agreement moved beyond discussion and toward implementation.
Knowing when to draw the line between preparing and committing an overt act is also important to know, because it is how prosecutors construct a conspiracy case against you.
How a Simple Action Can Turn a Conversation Into a Crime
By itself, talking about committing a crime is generally not a conspiracy. For example, if you and a fellow employee take lunch together and rant about robbing a bank, that does not constitute a crime. However, if you leave that lunch behind, log on to the internet and make an active purchase of ski masks or special tools, or even secure a specific getaway car for the job, the law changes immediately.
The court has a clear indication of the seriousness of the talk in the overt act. It shows an active effort by the parties to put their criminal scheme into action and to make a verbal suggestion a real threat.
How an Innocent Purchase Can Become a Criminal Overt Act
One important feature of conspiracy law is that the overt act itself may be lawful. The act need not be illegal.
Walk into the local hardware store and buy a crowbar, a roll of heavy-duty duct tape, or a pair of gloves, and you are in a totally legal, normal transaction. But if the prosecutor can show that those items were purchased with the intent to commit a future burglary, the prosecutor's perfectly legal purchase becomes an overt act.
The act must be a step in the course of the crime, whether the simplest or the most innocent, to the outside observer. Moreover, the act must occur after the agreement but before the underlying crime is completed or all efforts to complete it are abandoned.
How Someone Else's Actions Can Make You Criminally Liable
The worst part of the conspiracy statute may be the doctrine of vicarious liability. A conspiracy is defined as a collection of people who act together as a single entity under the law. This means you do not have to be the person who commits the physical step forward to face the same charges.
If you agree with two others and one of them leaves to rent a van for the offense, that person acts on your behalf legally. If prosecutors prove you joined the conspiracy, an overt act by another conspirator may satisfy the overt-act requirement.
As soon as one member of the group makes that historic leap, the legal net will close, and all of the group will be charged and prosecuted equally.
Can You Be Charged if the Crime Never Happened?
There is a popular notion that it is impossible to be convicted of a crime if nobody was hurt and the ultimate did not happen. Under California law, the answer is a definitive yes. You may be charged and convicted of conspiracy without ever committing the actual crime.
Legally, it is a crime to form a conspiracy. As soon as you agree with specific intent and the minor overt act is performed by any member of the group, the offense is finished. If the plan works, is thwarted by the police, or is later all but forgotten by the group, the original crime remains a crime.
In the past, one was exposed to significant vicarious liability under the Natural and Probable Consequences doctrine when joining a conspiracy. This meant that not only would you be liable for the crime you agreed to, but you could also be charged criminally for any other crime that could be reasonably foreseen in the course of your co-conspirators' other crimes.
For years, this was how prosecutors have prosecuted murder convictions for peripheral players. For instance, you might agree to join the team for a commercial burglary, but as you were talking, your partner brought out a gun and fired it at a security guard. You may be charged and found guilty of murder even if:
- You knew nothing of your partner's gun
- You were outside as a lookout
- You did not want anyone to die
The law previously focused on whether a reasonable person would have foreseen the violence.
A dramatic change in the legal landscape, driven by significant legislative changes such as Senate Bill 1437 and clarifying bills like SB 775.
These statutory changes had a dramatic impact on Section 188 and Section 189 of the Penal Code, which previously required proof of a "natural and probable" consequence of the defendant's actions.
There is no longer a legal basis to attribute malice to you for your involvement in a lesser crime. To be found guilty of murder for the actions of a co-conspirator, the prosecution must now prove one of the following:
- You were the actual killer
- You contributed and participated in the killing with the intention to kill
- You were a major participant in the underlying felony and acted with reckless indifference to human life
You will still be charged with serious felony conspiracy for the original plan. However, the law now shields you from the prospect of being automatically sentenced to a lifetime in prison for a separate and lethal escalation that you did not plan or intend.
Penalties for Criminal Conspiracy Under Penal Code 182
The steps you can take when charged with a conspiracy under Penal Code Section 182 depend on the type of crime that you allegedly were conspiring to commit. The crime of conspiracy is among the most serious in California, because the law considers it an even greater threat to society than a single crime. This means that the consequences can turn your life upside down.
The punishment for conspiracy, as a general rule, is the same as that of the underlying target crime. The law treats the agreement to commit the act with the same level of severity as executing the act itself.
Moreover, anyone may be liable to be charged with and convicted of both conspiracy and the actual crime. When you and an associate are conspiring to rob a business, and you are caught and convicted of both robberies, you may face charges for both conspiracy and the completed offense, subject to applicable sentencing rules, effectively doubling the legal jeopardy each of you faces.
Conspiracy to Commit a Felony
If you enter an agreement to commit a crime that is only a felony, then your conspiracy charge will become a felony as well. You will be exposed to a state prison sentence, and the sentence will be the same as the target crime's statutory sentence:
- Conspiracy to commit murder — Punishable by 25 years to life in state prison, or life without the possibility of parole, matching the penalty for first-degree murder.
- Conspiracy to commit first-degree robbery — Punishable by 3, 4, or 6 years in state prison (or 3, 6, or 9 years if committed in concert with two or more people inside an inhabited dwelling).
- Conspiracy to commit first-degree burglary — Punishable by 2, 4, or 6 years in state prison.
Conspiracy to Commit a Misdemeanor
If the intent was not to commit a felony offense (petty theft, minor vandalism), the charge is a wobbler. Whether a conspiracy charge may be filed as a misdemeanor or felony depends on the underlying offense and applicable statutes, based on the facts of the case and your prior criminal record.
- If charged as a misdemeanor — County jail up to one year and a fine up to $10,000
- If charged as a felony — The charge becomes a felony that attracts a formal felony probation or state prison sentence of 16 months, 2 years, or 3 years
How California Sentences Conspiracies Involving Multiple Crimes
Legally, you cannot get separate conspiracy sentences for each of the individual crimes if the prosecution claims that your agreement contained a plan to commit more than one crime. Rather, you can only be convicted of one count of conspiracy.
However, the court will adopt the maximum penalty approach. Sentencing will be based on the maximum sentence for the crime on which your contract was framed, which is the most severe of all underlying crimes, to get the most severe punishment possible.
When a Conspiracy Case Becomes a Federal Matter
In California's state system, the conspiracy charge is very broad, but in the federal system, it poses a new set of legal dangers.
Generally, the federal government intervenes when an alleged plan affects federal interests and/or extends beyond the state borders. It is illegal to conspire to commit a federal crime or to defraud the government under the general federal conspiracy statute, 18 U.S.C. § 371. Some of the most common federal conspiracy charges are:
- Organized drug trafficking and distribution activities involving two or more states or importing from across the border.
- Complex financial crimes, including wire fraud, mail fraud, and tax evasion
- Coordinated schemes targeting federal programs or financial institutions
Successfully defending against a federal conspiracy charge is very different from defending against those charges in state court. The federal system uses very broad drug and racketeering laws that completely take away a judge's power to reduce a sentence.
There are several federal drug conspiracies with strict mandatory minimums that are determined by the quantity of drugs that the conspiracy handled, not by the quantity of drugs in the hands of a specific person.
Federal agencies like the FBI and DEA frequently investigate large-scale drug-trafficking conspiracies. Prosecutors often target lower-level participants with severe charges. They leverage the threat of mandatory prison time to force those individuals to testify against the alleged leaders of the operation.
In state courts, probation or local jail programs are far more prevalent, but in federal court, more than 85% of people convicted of a federal crime are sent to a federal prison facility.
Defenses to Conspiracy Charges
A conspiracy charge provides prosecutors with significant leverage, but it does not automatically result in a conviction. Multiple aggressive defense strategies may be employed to break down the case and prove that the prosecution’s allegations of specific intent and actual agreement are not beyond a reasonable doubt. Your attorney could use any of the following defenses:
There Was No Actual Agreement
The usual response to a conspiracy charge is to prove that an actual and legally binding agreement never existed. Words said over the phone can be easily misinterpreted by police or wiretaps.
Your defense attorney could argue that the discussion may have been hypothetical, dark humor, hyperbole, or just venting. The law states that mere discussion of a crime or participation with those who intend to commit a crime does not, by itself, make a person a co-conspirator.
The prosecution's case collapses if you lack the specific intent to turn your words into a shared criminal purpose.
There Was No Overt Act
The prosecutor must be able to establish that an overt act was committed by someone involved in the group, even if the prosecutor could prove that you had a serious conversation with someone else to commit a crime. The police intervening too early, or the group merely discussing an idea without taking a physical step to enact the plan, would mean that no crime has been committed.
If your attorney is able to establish that the alleged actions were merely a part of the planning, or agreement, process and not an independent act to advance the plan, then the conspiracy is not legally complete.
You Withdrew From the Conspiracy
If there was an actual criminal agreement, it may be possible to avoid responsibility through the withdrawal defense. Withdrawal may be a defense under specific circumstances, subject to California law and jury instructions. Withdrawal may affect liability in certain circumstances, but its legal effect depends on timing and the facts of the case.
To successfully rely on this defense, you must meet a narrowly drawn legal requirement:
- You must completely and explicitly reject the conspiracy
- You must actively communicate that rejection, either by explicit words or clear actions, to the other members of the group known to you
Just walking away or not showing up is not adequate. If you withdraw from the conspiracy after a crime has been committed, you are still guilty of the conspiracy, but you are afterward completely cut off from all further crimes committed by the previous partners of the conspiracy.
Find a Criminal Defense Attorney Near Me
Mere words can transform into a serious felony charge, a conspiracy charge. The line between innocent conversation and criminal liability is very narrow, and you cannot go it alone. One wrong move, one wrong text message can change your life forever.
Call an attorney if you are under investigation or have pending charges for PC 182 and protect your future right away. Call Darwish Law today for a confidential consultation, and let an experienced Santa Ana advocate fight for your freedom. Contact us at 714-887-4810.