California Penal Code 653f PC makes it a crime to solicit someone else to commit certain California criminal offenses.1
Not all California crimes are covered by this particular law. For example, solicitation of lewd conduct and solicitation of prostitution are covered under different California criminal laws (Penal Code 647(a) PC and Penal Code 647(b) PC).2
However, PC 653f is California's broadest “solicitation of a crime” law.
The legal definition of soliciting a crime
You may be guilty of solicitation of someone to commit a crime under Penal Code 653f PC if all of the following are true:
- You request that another person commit a crime covered under California's criminal solicitation law;
- You intend that the crime be committed; and
- That other person receives the communication containing the request to commit a crime.3
The crimes covered by PC 653f are:
- Grand theft;
- Receiving stolen property;
- Assault with a deadly weapon;
- Dissuading a witness;
- Penal Code 187(a) PC California murder;
- Major California sex crimes committed by force or violence (including rape, sodomy, oral copulation and penetration with a foreign object);
- Sale or transportation of a controlled substance; and
- Medi-Cal fraud under Welfare Code 14014.4
Note that it is not necessary that the person being solicited to commit a crime actually commit the crime—or even agree to commit the crime. You can be guilty of solicitation of someone else to commit a crime even if that person rejects the solicitation.5
Example: Andrea is being charged with Penal Code 211 PC robbery.
She asks her boyfriend Pete to appear as a witness in her trial and claim that she was with him on the night of the robbery, even though she actually was not.
Pete thinks it over and decides that he is too afraid of being charged with Penal Code 118 PC perjury. So he tells Andrea no.
Andrea is still guilty of soliciting Pete to commit perjury even though he rejected her solicitation.
But it is also important to note that you are not guilty of soliciting someone to commit a crime unless that person actually receives the communication requesting that they commit a crime.
If the communication is in the form of a letter, an email or a verbal request sent through a third person, and it never reaches the intended recipient, then you are not guilty under Penal Code 653f.6
Example: Lou is in prison when he finds out his girlfriend Cassandra is pregnant with his child.
Lou does not want to be forced to pay child support for the baby. So he writes a letter from prison to one of his friends, asking the friend to see if he can find a way to kill the fetus.
A prison official reviewing outgoing mail reads the letter and takes it to his superiors instead of delivering it. So it never reaches Lou's friend.
Even though Lou tried to convince his friend to commit murder, the solicitation never reached its intended recipient. So Lou is not guilty of solicitation of a crime.7
Penalties for Penal Code 653f
The penalties for soliciting someone to commit a crime depend which crime the defendant is alleged to have asked someone to commit.
Solicitation of sale or transportation of a controlled substance . If you are alleged to have solicited someone else to commit sale or transportation of drugs, then the solicitation is a California misdemeanor for a first ffense.
The potential penalties are up to six (6) months in county jail, and/or a fine of up to one thousand dollars ($1,000).8
The potential penalties are two (2), three (3) or four (4) years in California state prison, and/or a fine of up to ten thousand dollars ($10,000).9
Solicitation of murder. Soliciting someone else to commit murder is also a California felony. The potential penalties are three (3), six (6) or nine (9) years in state prison, and/or a fine of up to ten thousand dollars ($10,000).10
Solicitation of other offenses. For all other crimes covered by California Penal Code 653f, solicitation to commit the crime is what is known as a California “wobbler.” A wobbler is a crime that can be charged as either a misdemeanor or a felony, at the prosecutor's discretion.
Misdemeanor penalties for wobbler solicitation of a crime include up to one (1) year in county jail. Felony penalties under these sections of the law include sixteen (16) months, two (2) years or three (3) years served in county jail.11
Legal defenses for solicitation of a crime
Common legal defenses to charges of soliciting someone else to commit a crime including insufficient evidence.
This legal defense is especially important for the crime of solicitation because Penal Code 653f PC specifies that you can only be convicted of this offense if the prosecutor can offer either:
- The testimony of two (2) witnesses; or
- The testimony of one (1) witness plus separate corroborating evidence (such as your acts, statements or comments or anything else that might connect you to the offense).12
According to Torrance criminal defense attorney Elisa Guadan13:
“Penal Code 653f imposes special evidence requirements on prosecutors seeking to convict people for solicitation. That's because it's especially easy for someone to be falsely accused of solicitation. What usually happens is a person who may have committed or attempted to commit a crime decides to falsely accuse another person of soliciting the crime, perhaps as part of a deal with prosecutors for a lighter sentence.”
This means that you can't be convicted of soliciting the commission of a crime based on only one person's testimony If the prosecutor cannot offer another reliable witness or more corroborating evidence, then s/he may be willing to consider dropping or reducing the charges against you.
Call us for help…
For questions about the crime of Penal Code 653f PC solicitation of a crime, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1 Penal Code 653f PC – Soliciting commission of certain offenses; punishment; degree of proof. (“(a) Every person who, with the intent that the crime be committed, solicits another to offer, accept, or join in the offer or acceptance of a bribe, or to commit or join in the commission of carjacking, robbery, burglary, grand theft, receiving stolen property, extortion, perjury, subornation of perjury, forgery, kidnapping, arson or assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury, or, by the use of force or a threat of force, to prevent or dissuade any person who is or may become a witness from attending upon, or testifying at, any trial, proceeding, or inquiry authorized by law, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170, or by a fine of not more than ten thousand dollars ($10,000), or the amount which could have been assessed for commission of the offense itself, whichever is greater, or by both the fine and imprisonment. (b) Every person who, with the intent that the crime be committed, solicits another to commit or join in the commission of murder shall be punished by imprisonment in the state prison for three, six, or nine years. (c) Every person who, with the intent that the crime be committed, solicits another to commit rape by force or violence, sodomy by force or violence, oral copulation by force or violence, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for two, three, or four years. (d)(1) Every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 11352, 11379, 11379.5, 11379.6, or 11391 of the Health and Safety Code shall be punished by imprisonment in a county jail not exceeding six months. Every person, who, having been convicted of soliciting another to commit an offense specified in this subdivision, is subsequently convicted of the proscribed solicitation, shall be punished by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170. (2) This subdivision does not apply where the term of imprisonment imposed under other provisions of law would result in a longer term of imprisonment. (e) Every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 14014 of the Welfare and Institutions Code shall be punished by imprisonment in a county jail for not exceeding six months. Every person who, having been convicted of soliciting another to commit an offense specified in this subdivision, is subsequently convicted of the proscribed solicitation, shall be punished by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170.”)
2 See Penal Code 647 PC – Lewd conduct in public; prostitution [other solicitation offenses].
3 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 441 – Solicitation: Elements (Pen. Code, § 653f). (“The defendant is charged [in Count ] with soliciting another person to commit a crime [in violation of Penal Code section 653f]. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant requested [or <insert other synonyms for solicit as appropriate>] another person to commit [or join in the commission of] the crime of <insert target offense>; [AND] 2. The defendant intended that the crime of <insert target offense> be committed(;/.) <Give element 3 when instructing that person solicited must receive message; see Bench Notes.> [AND 3. The other person received the communication containing the request.]”)
4 Penal Code 653f PC – Soliciting commission of certain offenses; punishment; degree of proof, endnote 1 above.
5 CALCRIM 441 – Solicitation: Elements (Pen. Code, § 653f). (“[A person is guilty of solicitation even if the crime solicited is not completed or even started. The person solicited does not have to agree to commit the crime.]”)
6 CALCRIM 441 – Solicitation: Elements (Pen. Code, § 653f), endnote 3 above.
7 Based on the facts of People v. Saephanh (2000) 80 Cal.App.4th 451.
8 Penal Code 653f PC – Soliciting commission of certain offenses; punishment; degree of proof, endnote 1 above.
See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)
See also Penal Code 1170(h) PC – Determinate sentencing. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)
12 Penal Code 653f PC – Soliciting commission of certain offenses; punishment; degree of proof, endnote 1 above.
See also CALCRIM 441 – Solicitation: Elements (Pen. Code, § 653f). (“[The crime of solicitation must be proved by the testimony of at least two witnesses or by the testimony of one witness and corroborating evidence.] Corroborating evidence is evidence that (1) tends to connect the defendant with the commission of the crime and (2) is independent of the evidence given by the witness who testified about the solicitation or independent of the facts testified to by that witness. Corroborating evidence need not be strong or even enough to establish each element by itself. Corroborating evidence may include the defendant's acts, statements, or conduct, or any other circumstance that tends to connect (him/her) to the crime.”)
13 Torrance criminal defense attorney Elisa Guadan is an energetic young attorney who has devoted her entire career to high-stakes criminal defense. Her experience includes complex felonies like solicitation to commit murder.