What are the elements of a criminal conspiracy in California?

Posted by Neil Shouse | Oct 03, 2019 | 0 Comments

thoughts of conspiracy

The elements of a conspiracy under California criminal law are:

  1. the defendant agreed with another person, or persons, to commit a crime,
  2. one of the parties to the agreement took an overt act to further or advance that agreement, and
  3. the overt act was committed in California.

The “elements of a crime” refer to the set of facts that a prosecutor must prove to convict a defendant of a crime charged.

Penal Code 182 is the California statute that sets forth the State's conspiracy laws.

Examples of criminal conspiracies are:

  • Bob and Jen agree to set fire to someone's car and Jen buys matches to light the fire.
  • Miquel and Jerome both decide to rob a bank and Jerome purchases two ski masks to cover their faces.
  • Nicole and Juanita finalize on a plan to shoplift clothes while in a store and Nicole sneaks around the store searching for any security guards.

What are “elements of a crime?”

The elements of a crime refer to the set of facts that must be proven in order to successfully convict a defendant of a crime.

The prosecutor is the party that must prove these elements by presenting evidence to the judge or jury. In addition, the prosecutor must prove these elements beyond a reasonable doubt that the accused committed them. If the elements are not proven, the defendant is found not guilty, or is acquitted, of the crime charged.

All California crimes have corresponding elements associated with that offense. Examples of elements include:

  • a specific mental state (e.g., the intent to commit fraud),
  • the commission of an act (e.g., entering a residence),
  • the failure to commit an act (e.g., not stopping a car after causing an accident), and
  • an actual harm (e.g., serious bodily injury).

What is a conspiracy under California Penal Code 182?

The Judicial Council of California Criminal Jury Instructions No. 415 sets forth the elements of conspiracy under California Law.

According to these instructions, a prosecutor must prove three elements in order to successfully convict a defendant of criminal conspiracy. These are:

  1. he agreed with another person, or persons, to commit a crime,
  2. one of the parties to the agreement took “an overt act” to further or advance the agreement, and
  3. at least one of the overt acts was committed in California.

Note that there does not need to be an explicit or formal agreement between the conspirators (also referred to as co-conspirators). The fact that there was an agreement can be established by circumstantial evidence (that is, the circumstances surrounding the parties' actions). This evidence, though, must show that the conspirators acted with a common purpose to commit a crime.

Also note that a member of a conspiracy 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.

A defendant may be guilty of conspiracy even if he doesn't commit the agreed-upon crime. The conspiracy and the underlying offense are two separate charges. Commission or completion of the latter isn't necessary to a charge for the former.

What is an “overt act?”

An "overt act," according to California criminal law, is an act that is done in order 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.

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 can be as simple as:

  • purchasing a weapon,
  • making a phone call,
  • walking into a building to locate all the exits,
  • renting a room or car,
  • or giving a signal to a co-conspirator.

If more than one overt act took place in a case, one of them must have occurred in California for there to be a crime under Penal Code 182.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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