California Penal Code § 182 PC defines a criminal conspiracy as (a) an agreement by two or more people to commit a crime and (b) in which one or more of the persons commits an overt act to further that agreement.
Examples of conspiracies
- agreeing to set a person’s car on fire and then buying gasoline to start the fire
- consenting to burglarize a home and the person calls the house to see if the owners are home
- agreeing to rob a bank and a person buys ski masks to conceal everyone’s identity
Defenses
A defendant can fight a conspiracy charge with a legal defense. A few common defenses are:
- no agreement,
- no overt act, and/or
- the defendant withdrew from the conspiracy.
Penalties
Some conspiracies are charged as felonies. Others are wobbler offenses, meaning they can be charged as either:
- misdemeanors, or
- felonies.
The specific penalties for this crime often depend on the penalties that may be imposed in connection with the underlying offense.
Our California criminal defense attorneys will explain the following in this article:
- 1. “Conspiracy” Defined
- 2. Best Defenses
- 3. Felony vs Misdemeanor
- 4. Expunging The Record
- 5. Expunging The Record
- 6. Effect on Gun Rights
- 7. Related Offenses
A conspiracy revolves around an “agreement” to commit a crime, and an “overt act”.
1. “Conspiracy” Defined
Penal Code 182 PC is the California statute that makes it a crime for a person to commit conspiracy.1
A prosecutor must prove the following to convict a person of a conspiracy charge:
- the defendant agreed with another person, or persons, to commit a crime,
- one of the parties to the agreement took an “overt act” to further or advance the agreement, and
- at least one of the overt acts was committed in California.2
Note that someone is not guilty of conspiracy if:
- he merely accompanies or associates with members of a conspiracy, and
- does not intend to commit an offense.3
Also, note that a conspiracy member does not have to personally know the identity or roles of all the other members in the agreement. The focus is on whether the defendant did in fact agree to commit a crime.4
Questions often arise under this statute on the meaning of:
- agreement, and
- overt act.
Agreement
It is not necessary under this law that the parties came to a detailed or formal agreement.5
Further, an agreement may be inferred from the defendant’s conduct if a common purpose existed to commit a crime.6
Example: Bill and Ted are seen sneaking towards a home at night. Both are dressed in black and Bill is carrying a duffle bag. Ted throws a small rock at the home’s front door to see if any lights come on.
Here, the conduct of both parties would be sufficient to charge them with conspiracy to commit burglary. This is even true if Bill and Ted had no formal written or oral agreement to commit the crime.
Overt act
An “overt act” is an act that is done to help accomplish or advance the agreed-upon crime. This act must be performed:
- after the agreement to commit the crime has been made (but before the crime is completed), and
- in addition to the agreement or plan to commit the crime.7
The overt act does not have to be criminal itself. The act can be as simple as:
- purchasing a weapon,
- renting a room or car, or
- giving a signal to a co-conspirator.
2. Best Defenses
A defendant can raise a legal defense to challenge a conspiracy charge.
Three common defenses to 182 PC are:
- no agreement,
- no overt act, and/or
- withdrawal.
No agreement
A person is not guilty of conspiracy unless there is an agreement to commit an offense. This means it is always a defense for the accused to show that there was no agreement.
Example: Jerome and Nia enter a convenience store. Unbeknownst to Jerome, Nia pulls out a gun and decides to rob the clerk. Jerome cannot be charged with conspiracy because he never agreed to the robbery.
No overt act
Recall that some party to the conspiracy must commit an overt act for there to be an offense. A plan to commit a crime is not enough. A defense, therefore, is for a defendant to show that no one involved in the plan took some act to further it.
Withdrawal
Even if a person conspires to commit a crime, he is not guilty if he withdrew from the conspiracy. The person must communicate the withdrawal before someone commits an overt act.
Example: Lisa and Marcos agree to steal a car. Neither takes any action to further this plan. Lisa later speaks with Marcos and says she wants out of the deal.
Here, Lisa is not guilty of conspiracy. But she would be guilty if, before she spoke with Marcos, he bought them rubber gloves for the heist.
A conviction of this crime can result in a substantial fine and/or jail time.
3. Felony vs Misdemeanor
A person guilty of 182 PC to commit a felony will be punished by whatever penalty the underlying felony carries. This means that if, for example, the accused is convicted of conspiracy to commit rape, he will face up to eight years in prison which is the punishment for rape.
If convicted of conspiring to commit more than one felony, the defendant will face penalties for the felony with the most severe sentence.
A conspiracy to commit a misdemeanor is a wobbler. This means it can be charged as either a misdemeanor or a felony.
A misdemeanor or felony conviction will result in:
- imprisonment, and
- substantial fines.
4. Immigration Consequences
A conviction for conspiracy this law may have negative immigration consequences.
United States immigration law says that certain kinds of criminal convictions can lead to:
- a non-citizen being deported, and
- a non-citizen being marked “inadmissible.”
Categories of “deportable” or “inadmissible” crimes include
This means that if a person conspires to commit one of these categories of crimes, he could face negative immigration consequences.
5. Expunging The Record
A person convicted of this crime is entitled to an expungement provided that he:
- successfully completes probation, or
- completes a jail term (whichever is relevant).
If a party violates a probation term, he could still possibly get the offense expunged. This, though, would be at the judge’s discretion.
Under Penal Code 1203.4, an expungement releases an individual from virtually “all penalties and disabilities” arising out of the conviction.9
6. Effect on Gun Rights
A conviction under this statute may have a negative effect on the defendant’s gun rights.
According to California law, convicted felons are prohibited from acquiring or possessing a gun in California.
This means that an accused will lose his rights to own and possess a gun if either:
- he is guilty of conspiracy to commit a felony, or
- he is guilty of conspiracy to commit a misdemeanor and it was charged as a felony.
7. Related Offenses
There are three crimes related to conspiracy. These are:
- gang sentencing enhancement law – PC 186.22
- aiding and abetting – PC 31,
- accessory after the fact – PC 32, and
- attempt – PC 664.
Gang sentencing enhancement law – PC 186.22b
Per Penal Code 186.22b PC, anyone who commits a felony for the benefit of a gang will receive:
- a mandatory prison sentence,
- in addition and consecutive to the penalty he receives for the underlying felony.
Depending on the circumstances of the offense, this could mean 25-years-to-life, in prison.
A person would receive this sentence if he conspired to commit a felony for the benefit of a gang.
Aiding and abetting – PC 31
Penal Code 31 PC makes it a crime for a person to encourage or aid in the commission of an offense.
As to conspiracy, this means a person could be charged with a PC 31 offense if:
- he assisted a conspirator in an overt act, but
- was not part of any agreement to commit a crime.
Accessory after the fact – PC 32
Under Penal Code 32 PC, it is a crime for a person to:
- harbor or aide a person whom he knows has committed a felony, and
- do so in order to protect him from arrest or conviction.
Per this statute, it would be a crime if a person hid a conspirator from the police post conspiracy.
Attempt – PC 664
Penal Code 664 PC is the California statute that makes it a crime for a person to attempt to commit an offense.
A person is guilty of an attempt if:
- he specifically intended to commit a California crime, and
- he took at least one direct step toward the commission of that crime.
Note that, like conspiracy, there must be some act in furtherance of the crime for an attempt to occur.
Legal References:
- California Penal Code 182 PC. The full language of the code section reads as follows:
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.
- CALCRIM No. 415 – Conspiracy. Judicial Council of California Criminal Jury Instructions. See also: People v. Morante (1999) 20 Cal.4th 403, People v. Swain (1996) 12 Cal.4th 593, and People v. Liu (1996) 46 Cal.App.4th 1119.
- People v. Drolet (1973) 30 Cal.App.3d 207. See also People v. Toledo-Corro (1959) 174 Cal.App.2d 812.
- CALCRIM No. 415 – Conspiracy.
- People v. Yeager (1924) 194 Cal. 452. See also People v. Anderson (1949) 90 Cal.App.2d 326.
- Marino v. United States (1937) 91 F.2d 691.
- People v. Saugstad (1962) 203Cal.App.2d 536. See also: People v. Zamora (1976) 18 Cal.3d 538, People v. Brown (1991) 226 Cal.App.3d 1361, and People v. Tatman (1993) 20 Cal.App.4th 1.
- See INA 237 (a) (2) (A).
- California Penal Code 1203.4 PC.