Is Collier guilty of attempted murder?

Issue

Mark Collier appeals his conviction for the attempted murder of his estranged wife. Specifically, he argues that his conduct did not constitute a substantial step toward commission of the crime of murder, as required by Indiana’s attempt statute, but was instead mere preparation.

Facts

Collier married his wife, Nancy, on May 24, 1986. Nancy separated from Collier and moved out of their home on March 22, 2003. On March 24, 2003, Nancy obtained an Order for Protection in which Collier was ordered to stay away from Nancy’s place of employment, Cameron Hospital in Angola, Indiana. Nancy filed for divorce on April 8, 2003.

On April 24, 2003, Nancy was working the 2:30–10:30 p.m. shift at the hospital. That day, Collier went to the home of his neighbor, Charles Cameron, at approximately 3:00 p.m. According to Cameron, Collier was upset because “he thought he was gonna lose his home because him and his wife were gettin’ divorced.” Collier told Cameron that “he was gonna kill his wife and himself” and then went home. Cameron thought Collier “was just talking” because Collier had said similar things before but “had never actually done anything.”

At approximately 5:30 p.m., Collier returned to Cameron’s home and said, “Tonight’s the night.” As the two walked back to Collier’s house, Collier again told Cameron that he was going to kill his wife and himself. Once back in Collier’s house, each of them drank a beer and Collier eventually “dozed off in his chair.” Cameron “thought it was over” and went back home. At some point during the day, Cameron called Charter Beacon, Northeastern Center, and Collier’s exboss because he thought Collier needed psychiatric help.

Collier went to Cameron’s house again at 8:45 p.m. and told Cameron that he wanted to talk to him. The two walked back to Collier’s house and each of them drank another beer. Collier took Cameron upstairs, showed him where the cat litter boxes and cats were, and told him that he could let the cats outside or take them to a shelter. Collier then showed Cameron where the dog food was, asked him to feed his dog, and gave him spare keys to his house and his pickup. Cameron says that Collier then went into his bedroom and “started prayin’, you know, telling—saying, ‘God, forgive me for what I’m gonna do.’” Collier “started kinda cryin’. Then he … started kinda chuckling.” He then came out of his room, hugged Cameron, and told him, “Tonight’s the night. I’m gonna do it.” Collier collected an ice pick, a box cutter, and a pair of binoculars and said, “I’m gonna stab her in the effin’ heart twice. I’m gonna cut her effin’ throat.” Collier also said that he would ram Nancy with his pickup. Collier left in his pickup at approximately 9:00 p.m. and headed towards Angola.

A few minutes after Collier left, Cameron himself left to drive to work. During the drive, he saw Collier driving back toward his house and away from Angola. Sometime between 9:30 and 10:00 p.m., Collier arrived at the house of another of his neighbors, Billy Fansler. Fansler says that Collier told her that “he was going to end it and he had had enough.” Collier also told Fansler “to tell [her] husband thank you and tell [her] children God bless them.” When Collier was at Fansler’s house, “he looked kind of wobbly,” “he wasn’t quite steady on his feet,” “he kinda slurred [his speech] a little,” and he was depressed and “maybe a little angry.”

After Collier left, Fansler called Cameron’s wife, who told her that Cameron had planned to speak with the police once he reached Hamilton, Indiana, on his way to work. Indeed, Cameron had already stopped and spoken with a police officer, Deputy Marshall Jeremy Warner of the Hamilton Police Department. Cameron says that he told Deputy Warner that Collier was planning to kill Nancy and himself. Deputy Warner, on the other hand, says that Cameron told him only that Collier was planning to kill himself. After speaking with Cameron, Deputy Warner called the Steuben County Sheriff’s Department. Deputy Warner and officers from the Steuben County Sheriff’s Department then went to Collier’s house to try to find him. Fansler went out and explained to the officers that Collier had been at her house but had just left in his pickup and was not at his home.

A friend of Nancy called her at the hospital and told her that the police were searching for Collier. That prompted Nancy to phone the police, who told her to stay in the hospital until she heard otherwise. At approximately 10:40 p.m., Officer Sandy Justice and Officer Robert Cunningham of the Angola Police Department received a radio dispatch to attempt to locate Collier. Shortly thereafter, Officer Justice and Officer Cunningham arrived at the hospital and spotted Collier’s pickup. The pickup was backed into a parking space in the last row of the parking lot across the street from the emergency area of the hospital so that Collier would have been able to see the emergency room entrance/exit. This door was the only exit available to those leaving the hospital after 10:00 p.m.

When the officers approached Collier’s vehicle, they observed that the vehicle was off, the lights were off, and Collier was inside asleep or passed out. The officers opened the doors of the vehicle and told Collier to exit. It was not until the officers opened the doors that Collier awoke. Once Collier was out of the vehicle, the officers noticed that he was intoxicated and took him into custody. They then searched the interior of the pickup and found an ice pick, a box cutter, a pair of binoculars, and an open container of beer that was partially full. The officers explained to Collier that they were arresting him for invasion of privacy for violating the terms of the protective order and also for public intoxication.

Eventually, however, the State charged Collier with Attempted Murder, a Class A felony. A jury trial was held October 27 and 28, 2004, at the conclusion of which the jury found Collier guilty. On February 28, 2005, the trial court sentenced Collier to the presumptive sentence of thirty years and suspended five of those years, for a total executed prison term of twenty-five years to be followed by five years of probation. Collier now appeals.

On appeal, Collier argues that the evidence is insufficient to support his conviction for attempted murder. “To establish attempted murder, the State must prove beyond a reasonable doubt that (1) the defendant acted with the specific intent to kill; and (2) the defendant engaged in conduct constituting a substantial step toward commission of the crime” of murder. Collier contends that his conduct on the day in question did not, as a matter of law, constitute “a substantial step toward commission of the crime” of murder. We must agree.

Reasoning

We have said that a “substantial step” for purposes of the attempt statute is any overt act beyond mere preparation and in furtherance of intent to commit an offense. Whether a defendant has taken a substantial step toward the commission of a crime is generally a question of fact to be decided by the trier of fact based on all the particular circumstances of the case. In making this determination, the focus is on what acts have been completed, not what remains to be done. The completed acts must be strongly corroborative of the firmness of the defendant’s criminal intent. Stated differently, the liability of the defendant turns on his purpose as manifested through his conduct.

Collier argues that the evidence is insufficient as a matter of law to constitute a substantial step toward murder; he contends that his conduct was mere preparation. We must decide, then, whether evidence that Collier drove to Nancy’s place of employment with an ice pick, a box cutter, and binoculars, parked outside the door through which he knew Nancy would exit, then fell asleep or passed out is sufficient to have allowed a reasonable jury to find that Collier had taken a substantial step toward the commission of murder.

So where do we go from here? The Indiana Supreme Court has recognized that “deciding what constitutes an attempt has always been a burden upon the common law, challenging even the most respected judges.”

In this case the seriousness of the crime of murder weighs in favor of affirming Collier’s conviction. Still, “it is impossible to lay down any general rule to determine what acts are too remote to constitute an attempt.”

Indiana’s general attempt statute is based on the Model Penal Code approach to attempt liability. The “substantial step” requirement found in Indiana Code § 35-41-5-1(a) was taken directly from Model Penal Code § 5.01(1)(c). Specifically, the requirement that the defendant’s conduct be “strongly corroborative” of the defendant’s criminal purpose is grounded in Model Penal Code § 5.01(2).

“An attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done. A criminal attempt bears criminal intent upon its face.” “In the crime of attempt, it is primarily the acts of the accused which provide evidence of the requisite mental intent.” Therefore, we must necessarily evaluate any statements a defendant may have made together with his conduct in order to determine whether that which he has done strongly corroborates that which he said he would do. The reason for requiring evidence of a direct act, however slight, toward consummation of the intended crime, is  that in the majority of cases up to that time the conduct of the defendant, consisting merely of acts of preparation, has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent.

It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act, or before any fragment of the crime itself has been committed, and this is so for the reason that, so long as the equivocal quality remains, no one can say with certainty what the intent of the defendant is.

Model Penal Code § 5.01(2) includes an illustrative list of conduct that, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient to constitute a substantial step as a matter of law. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law:

(a) lying in wait, searching for or following the contemplated victim of the crime;

(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for the commission of the crime;

(c) reconnoitering the place contemplated for the commission of the crime;

(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;

(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;

(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;

(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.”

Collier’s conduct falls into three of the seven Model Penal Code categories, namely, lying in wait, reconnoitering, and possession of materials to be employed in the commission of the crime at or near the place contemplated for its commission. Nevertheless, we cannot say that his conduct was strongly corroborative of his stated intent.

First, there is undisputed evidence that when the officers apprehended Collier, he was either passed out or asleep. While we do not reject the possibility that lying in wait or reconnoitering may in some cases be deemed sufficient to constitute a substantial step, this is not such a case. Simply driving to the place contemplated for the commission of crime before allowing oneself to fall into unconsciousness cannot be said to be strongly corroborative of a firm criminal purpose, as is the requirement in Indiana. Rather, such evidence of equivocal behavior supports Collier’s claim that he never moved beyond mere preparation.

Second, there is undisputed evidence that Collier took an ice pick and a box cutter and drove to Nancy’s place of employment, where he waited outside in a position from which he would be able to see Nancy exit. But the corroborative significance of a defendant’s possession of the weapons he intends to use in committing a crime must be evaluated in light of the types of weapons he possesses. This is because the level of threat or the apparent danger posed by weapons is inversely proportionate to the distance between the defendant and the alleged victim. Therefore, we must consider the nature and capability for injury of the particular weapon or weapons possessed by the defendant. The defendant’s conduct must “be something more than mere preparation, remote from the time and place of the intended crime.”

Here, Collier was found in his pickup with a box cutter and an ice pick, but given the distance between he and Nancy at the time of his arrest, those items were virtually useless to Collier in terms of an attempted murder. Compare this to the case of a defendant who parks a truck full of explosives near a building. Though the defendant may be the same physical distance from his intended victim or victims as Collier was from Nancy, the defendant with a truck full of explosives certainly poses a more imminent and significant danger. Likewise, a defendant with a gun is objectively more dangerous from a few hundred feet away than a defendant with a knife or a vehicle. In other words, depending on all the surrounding circumstances, it would seem that a defendant who has come within a few hundred feet of his intended victim with a gun has taken a more substantial step than has a defendant who has come within a few hundred feet of his intended victim with a knife or a pickup. Under the circumstances of this case, we cannot say that Collier’s possession of his pickup, a box cutter, and an ice pick was strongly corroborative of a firm criminal intent.

The undisputed facts demonstrate that Collier’s conduct never ceased to be equivocal. He drove to Nancy’s place of employment but then fell asleep or passed out. Furthermore, while he possessed the weapons he planned to use in commission of the crime, he never moved close enough to Nancy to make those weapons dangerous, that is, to demonstrate a present intent to use the weapons against her. Because Collier’s conduct was not strongly corroborative of a firm criminal purpose, he never took a substantial step toward commission of the crime of murder.

Both parties discuss in their briefs this Court’s decision in Hampton v. State, 468 N.E.2d 1077 (Ind. Ct. App. 1984). Hampton was convicted of attempted robbery based on the following facts: Hampton parked his car near the Pizza Hut next to a busy highway, which would have provided an easy escape route. He hid between bushes and the building, attempting to avoid light from passing cars. When arrested he was found wearing a ski mask, which could be pulled down over his face, and he was armed. He was aware a large amount of cash would be taken by the assistant manager when he departed, and other money would be left in the restaurant. If not for the arrival of the police, Hampton would have been able to rob the assistant manager and anyone else still with him. We held that the facts demonstrated that Hampton took a substantial step toward commission of robbery.

Several distinctions make the facts of Collier’s case even more flimsy than those in Hampton. First, Hampton, though somewhat intoxicated, was awake when police apprehended him, while Collier was either asleep or passed out. Second, Hampton, after his arrest, gave a detective a statement in which he acknowledged he had gone to the Pizza Hut to rob it because he needed money. Collier made no such statement to police. Third, while Hampton actually left his vehicle and positioned himself near the building with a gun, there is no evidence that Collier ever made such physical progress toward murder after arriving at the hospital. Furthermore, the holding in Hampton is consistent with our holding because Hampton’s conduct strongly corroborated his stated intent. With his weapon in hand, he exited his vehicle, approached the restaurant, hid behind the bushes next to the building, and stayed awake as he lay in wait. Given these distinctions and our Supreme Court’s comments that the facts therein were flimsy, the Hampton decision, though it affirmed a conviction, weighs in favor of reversing Collier’s conviction.

Holding

Taken as a whole, the acts that Collier completed before being apprehended did not constitute a substantial step. Collier’s conduct never ceased to be equivocal. Because “equivocal acts may well reflect an equivocal purpose,” we cannot say that Collier’s conduct was “strongly corroborative of the firmness of [his] criminal intent.”

We may have reached a different result had Collier been awake and alert, had he begun his approach toward the building, either in his pickup or on foot, or even if he had simply opened the door and taken a step out. But those are not the facts before us …

Barnes J., dissenting

What constitutes a substantial step towards murder is, as the majority points out, usually litigated when a direct attempt is made to take a life. We all could agree that a shot and a miss, a stabbing or shooting that does not result in death, or similar acts push the attempt “needle” to guilty beyond a reasonable doubt. This case presents a unique fact pattern unlike those in any reported Indiana case concerning attempted murder.

Collier’s actions are strongly corroborative of his intent as revealed in his statements to Cameron. Collier’s conduct included collecting a box cutter, ice pick, and a pair of binoculars, and driving to the hospital and parking in an area where he could see the only exit persons leaving the hospital could use at the time Nancy was expected to leave. I agree that in isolation possessing a box cutter, ice pick, and pair of binoculars might appear “innocent” and not much of a threat, but not when combined with Collier’s stated intention to kill Nancy by cutting and stabbing her and Collier’s having parked across the street from the hospital exit while there was a protective order in effect requiring Collier to stay away from the hospital. Additionally, although ice picks and box cutters have legitimate uses other than as weapons, under these circumstances there is no indication that Collier had any legitimate reason for possessing the box cutter and ice pick, such as that he intended to open cardboard boxes or go ice fishing. This is especially true in light of the evidence that Collier did not usually have these items in his truck, but specifically collected them and placed them in his truck before driving to the hospital.

I also disagree that because Collier was passed out asleep when police arrived that his conduct before passing out should be disqualified as strongly corroborative of his criminal intent. Was he dozing until he knew Nancy was scheduled to get off work? Did his ingestion of alcohol overtake him? Does it legally make any difference? What if police, properly warned, had interrupted Collier as he drove into the parking lot? Would Collier be more or less culpable if he were awake? The law “focuses on the substantial step that the defendant has completed, not on what was left undone.” Obviously, Collier could not have completed the crime while asleep in his truck, but I submit that is of no moment in analyzing whether he took a substantial step toward murdering Nancy.

Questions for Discussion

1. Explain the legal test relied on by the Indiana court in Collier.

2. Why does the Indiana court conclude that Collier was not guilty of attempted murder?

3. How does the court distinguish the facts in Hampton from the facts in Collier?

4. Summarize the dissenting opinion of Judge Barnes. 5. As a juror would you vote to convict Collier?

Would you convict Calvert of attempted armed robbery?

Robb, J.

Following a jury trial, David Calvert was convicted of attempted robbery with a deadly weapon and possession of a firearm as a serious violent felon, both Class B felonies, and possession of a sawed-off shotgun, a Class D felony. The trial court entered judgment and imposed sentence on all three convictions, with concurrent sentences of fifteen years with three years suspended on the Class B felony convictions. Calvert now appeals, raising the following restated issues: (1) whether sufficient evidence supports his convictions;( 2) whether Calvert’s dual convictions of possessing a firearm as a serious violent felon and possessing a sawed-off shotgun violate double jeopardy; and (3) whether Calvert’s sentence is inappropriate in light of the nature of the offenses and his character. We conclude the evidence is insufficient to support Calvert’s conviction of attempted robbery because the State failed to prove a substantial step; sufficient evidence supports Calvert’s conviction of possessing a firearm as a serious violent felon; Calvert’s conviction of possessing a sawed-off shotgun violates double jeopardy; and Calvert’s sentence is not inappropriate. We therefore affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

In the evening of July 26, 2007, Calvert was driving a Jeep in which his wife Tina Jewell, Joseph Cole, and seventeen-year-old J.F. were passengers. Earlier in the evening Calvert and Jewell had picked up Cole and J.F. before driving to North Vernon. Calvert was acquainted with Cole and J.F., and J.F. had previously told Calvert about one or more robberies he had attempted or completed. According to Cole’s statement to police officers, after Calvert picked up Cole and J.F., J.F. said he was going to rob a liquor store by running in, demanding money, and running back out.

Calvert was driving the Jeep southbound along State Road 7 in North Vernon when he turned the Jeep into the south side parking lot of the House of Spirits liquor store. Officer Staples of the North Vernon Police Department took notice of the Jeep because he had been assigned to specially patrol the city’s liquor stores, the police department having been informed by another law enforcement agency that there were heightened grounds to suspect liquor store robberies. Officer Staples observed the Jeep circle the liquor store by turning into an alley behind the store, driving back to the north side parking lot, and finally turning north on State Road 7. Officer Staples then drove his police car out of the parking lot of American Rental, a business closed at the time and on the opposite side of the road from the liquor store, and turned to follow the Jeep.

Calvert turned the Jeep into the parking lot of American Rental and stopped it near where Officer Staples had initially been parked. Officer Staples parked his car behind the Jeep, stepped out, and spoke briefly with Calvert, who was still sitting in the Jeep’s driver’s seat and told Officer Staples he was “just hanging out.” When other officers arrived to assist, they removed Calvert and his three passengers from the Jeep. Calvert was cooperative while one of the officers frisked his person for weapons and found none. With all the doors of the Jeep open, Officer Keith Messer saw a sawed-off shotgun lying on the floor, partially under the front passenger seat but protruding enough toward the rear seat that its handle and trigger guard were plainly visible. Officer Messer also observed what looked like a handgun, but was actually a BB pistol, lying in “plain view” on the back seat. An orange ski mask was also visible in the Jeep. Subsequent searches of the Jeep uncovered another BB pistol, three pairs of sunglasses, and two more orange ski masks.

Calvert, Cole, and J.F. were arrested and interviewed at the police station. Calvert claimed that at the time Officer Staples stopped behind the Jeep, he was getting ready to drop J.F. and Cole off at American Rental but had “no clue” what they were going to do there. When asked about the guns in the Jeep and who they belonged to, Calvert answered:

“[Calvert]: [J.F.]. He stole two of them pistols from Wal-Mart and the other one he bought.

[Detective]: Which one did he buy?

[Calvert]: The 12-gauge.”

J.F., when interviewed separately, told the detective that the sawed-off shotgun belonged to Calvert.

The State charged Calvert with Count I, attempted robbery as a Class B felony; Count II, possession of a firearm by a serious violent felon as a Class B felony; and Count III, possession of a sawed-off shotgun as a Class D felony. The case was tried to a jury, which found Calvert guilty as charged. The trial court held a sentencing hearing and in its sentencing order found the following aggravating factors: “[Calvert] has no high school diploma or GED certificate; [Calvert] has had two (2) formal delinquency adjudications, three (3) prior felony convictions and one (1) successful probation revocation. The Court finds the following mitigating factors: [Calvert]’s young age; incarceration would be a hardship on his dependents; the crime (in part) was caused by chronic substance abuse by [Calvert] since the age of twelve (12); and [Calvert] himself had been the victim of a sex crime at age eleven (11). The Court in weighing the aggravating factors and the mitigating factors, finds the aggravating factors slightly outweigh the mitigating factors and justify the imposition of a sentence in excess of the advisory sentence.”

Appellant’s Appendix at 220. The trial court imposed the following concurrent sentences: fifteen years on Count I, with twelve years executed and three years suspended to probation; fifteen years on Count II, with twelve years executed and three years suspended to probation; and two years, suspended, on Count III. Calvert now appeals.

Calvert argues the evidence is insufficient to sustain his conviction of attempted robbery. To convict Calvert of attempted robbery as a Class B felony, the State must prove beyond a reasonable doubt that Calvert, either directly or as an accomplice, engaged in conduct that constituted a substantial step toward the knowing or intentional taking of property from the liquor store, by using or threatening force or placing a person in fear, and while armed with a deadly weapon. The State argued at trial that Calvert aided J.F. in taking a substantial step toward robbing the liquor store. Calvert contends the evidence is insufficient to prove a substantial step, either by him directly or as an accomplice of J.F. For the reasons stated below, we agree.

“The substantial step element of attempt requires proof of any overt act beyond mere preparation and in furtherance of the intent to commit the crime.” “This requirement has been described as a minimal one, but the conduct must strongly corroborate the defendant’s criminal intent.” A reviewing court’s analysis “focuses on what has occurred and not what remains to be done.” Whether a defendant’s actions constitute a substantial step is generally a question for the trier of fact based on the totality of circumstances, and it “is impossible to lay down any general rule to determine what acts are too remote to constitute an attempt.” Nonetheless, in some cases the defendant’s conduct will fall short of a substantial step as a matter of law. See id. at 350.

In Collier, this court held the defendant’s actions did not constitute a substantial step toward the murder of his estranged wife. Three times on the day of the incident, Collier told a neighbor that he was going to kill his wife and himself. Later that night, he drove to his wife’s workplace while she was there, had in his car an ice pick and a box cutter, and parked in a lot with a view of the building’s only after-hours exit. However, when police officers later found Collier inside his car, he was asleep or passed out. This court reasoned that despite Collier’s lying in wait, reconnoitering, and possessing materials to be used in the crime, his conduct as a whole was not “strongly corroborative of his stated intent,” because he thereafter ceased to be awake or alert and never came close enough to his wife to place her in imminent physical danger.

In Hampton v. State, 468 N.E2d 1077 (Ind. Ct.App.1984), this court affirmed a conviction for attempted robbery of a restaurant. The defendant parked his car next to a busy highway, a potential easy escape route; he walked up to the restaurant and hid between bushes and the restaurant building in an effort to avoid car lights; and when found by police he was lying face down between bushes and the building, carrying a pistol and wearing a ski mask. Additionally, the defendant was a former employee of the restaurant, admitted his plan to rob that restaurant, and knew its assistant manager would be departing that night with a large amount of cash.

Applying Collier and Hampton to the facts of this case, we conclude Calvert’s actions, including as an accomplice through J.F., were at most mere preparation to rob the liquor store. The facts favorable to the judgment indicate J.F. told Calvert of his intent to rob a liquor store, and Calvert and J.F. drove to the liquor store with materials for committing a robbery: BB guns, a sawed-off shotgun, ski masks, and sunglasses. However, as Collier illustrates, merely driving to a location contemplated for a crime while possessing materials for use in the crime is not necessarily sufficient for a substantial step. See also State v. Kemp, 753 N.E.2d 47 (Ind.Ct. App. 2001) (holding no substantial step to child molesting was sufficiently alleged by allegations defendant agreed to meet purported minor girl for sex, drove to restaurant parking lot near motel, and brought condoms with him).

In Hampton, this court cited additional circumstances corroborating the defendant’s continuing intent to commit a robbery: the defendant approached on foot to just outside the building, he actively sought to conceal himself, and he was apprehended immediately outside the building while wearing a ski mask and holding a pistol. Such circumstances are not present here, where Calvert and J.F. never left their vehicle or walked up to the liquor store, the vehicle was plainly visible from the highway with no evidence of attempts at concealment, and after circling the liquor store Calvert drove to a different parking lot across the highway before Officer Staples made contact with him.

We are mindful that the question of what actions constitute a substantial step is generally one for the trier of fact and that Indiana courts eschew laying down general rules in the matter. Yet it is also well settled a substantial step must go beyond mere preparation or planning to commit an offense; “[w]ere we to conclude otherwise, there would be no limit on the reach of attempt’ crimes.” Further, we note that Hampton, though cited with approval, has been regarded by our Supreme Court as “flimsier” than the typical case of attempted robbery and as illustrating a minimal “threshold” for the offense. We therefore conclude Calvert and J.F.’s actions, which constitute an appreciably less substantial step than Hampton illustrates, are insufficient to sustain a verdict of attempted robbery. We therefore reverse Calvert’s attempted robbery conviction.

Was Duran guilty of an attempt to kill the president of the United States despite the fact that this was impossible given that President Clinton was not on the lawn of the White House?

An attempt to kill the U.S. president is punishable by a term of years or by life imprisonment. Duran argues that his conviction should be reversed because he shot at Dennis Basso rather than at President Bill Clinton.

The federal courts follow the Model Penal Code in requiring a purpose to commit a crime together with a “substantial step in a course of conduct planned to culminate in … [the] commission of the crime.” Duran expressed his strong desire to kill the President on numerous occasions and purchased a rifle, ammunition and a coat large enough to conceal the rifle. He traveled to Washington D.C. and stood outside the White House with a rifle and ammunition. There was sufficient evidence for a jury to conclude that Duran’s possessed a purpose to assassinate President Clinton and that he had taken substantial steps towards this purpose. The federal court concluded that Duran had already completed the crime of attempted assassination of President Clinton before he began firing at Dennis Basso. The identity of Duran’s target is “irrelevant, given the overwhelming evidence that … he engaged in numerous ‘substantial steps’ towards his objective of assassinating the President.”

Basso strongly resembled President Clinton and Duran’s attack strongly corroborated his intent to assassinate the President. The court avoided confronting whether the fact that Duran fired at Basso meant that Duran did not have the intent to assassinate the President and failed to take a step in furtherance of this objective.

Was McCloskey guilt of an attempt? Would your answer be different if he realized that he likely would not succeed in escaping from prison?

Opinion by Hoffman, J.

Appellant contends that the Commonwealth’s evidence at trial was insufficient to sustain his conviction for an attempted prison breach.

At the time of the alleged offense, appellant was serving a one to three years sentence for larceny in the Luzerne County Prison. At about 12:15 a.m., on December 26, 1972, James Larson, a Guard Supervisor at the prison, heard an alarm go off that indicated that someone was attempting an escape in the recreation area of the prison. The alarm was designed so that it could be heard in the prison office, but not in the courtyard. Larson immediately contacted Guards Szmulo and Banik. Initially, the guards checked the prison population, but found no one missing. The three men then conducted a search of the area where the alarm had been “tripped”. Near the recreation yard between two wings of the prison, they found one piece of barbed wire that had been cut. In addition, Guard Szmulo found a laundry bag filled with civilian clothing. The bags are issued by the prison and are marked with a different number for each prisoner. A check revealed that the bag belonged to appellant.

At approximately 5:15 a.m., on December 26, the appellant voluntarily approached Larson. Appellant had spent that night on the nine p.m. to five a.m. shift at work in the boiler room, situated near the point where the alarm had been triggered. Appellant explained to Larson that “I was gonna make a break last night, but I changed my mind because I thought of my family, and I got scared of the consequences.” Appellant testified at trial that he had become depressed prior to his decision to escape because he had been denied a Christmas furlough on December 24, 1972. His testimony at trial was consistent with Larson’s version of the episode: “in the yard, I realized that I had shamed my family enough, and I did not want to shame them any more … So I went back to the boiler room and continued working.”

On April 18, 1973, the grand jury returned an indictment charging the appellant with prison breach. Appellant went to trial on May 25, 1973, before a judge sitting without a jury and was found guilty of attempted prison breach. Thereafter, appellant filed motions in arrest of judgment and for a new trial. Motions were heard in October, 1973, and denied on June 10, 1974, by the Luzerne County Court of Common Pleas en banc. This appeal followed.

A criminal attempt is defined as “an overt act done in pursuance of an intent to do a specific thing, tending to the end by falling short of complete accomplishment of it. In law, the definition must have this further qualification, that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution. So long as the acts are confined to preparation only, and can be abandoned before any transgression of the law or of others’ rights, they are within the sphere of intent and do not amount to attempts.” Commonwealth v. Eagan, Thus, we must locate the line between an act which is mere preparation and one that is sufficiently proximate to be labeled an attempt.

A review of the cases on the law of attempt indicates that “[i]t is difficult to formulate any precise rule about how close the overt act must come to the accomplishment of the ultimate criminal result.”. “At what point does a potential criminal pass beyond preparation and become guilty of an attempt? Among the various tests suggested or applied are: the last act doctrine, holding that the defendant will not be guilty of an attempt until he does the last act necessary to the commission of a crime; Justice Holmes’ dangerous proximity test which focuses on both the dangerousness of the crime and the nearness to which the defendant has come to accomplishing it; and the movie camera test, which disregards the defendant’s declarations of intent and instead focuses on the extent. Professor White suggests that the law in Pennsylvania approximates the last act doctrine,

Commonwealth v. Willard represents the broadest statement of what constitutes mere preparation. In Willard, this Court reversed the appellant’s conviction for attempt to perform an abortion. The Commonwealth proved that the appellant accepted $160 from a police undercover agent, told her to undress and to lie on a bed equipped for the operation, left the room momentarily and returned with surgical instruments. At that point, the police agent and her “paramour”, stationed in the next room, arrested the appellant. These acts were held not “sufficiently close or proximate to the completed crime so that it could be said that they were done in pursuance of the intent to commit the crime as distinguished from mere preparation to commit the crime.”

In Commonwealth v. Eagan, a seminal case on the law of attempts, the Court noted that “the acts of the prisoner in going to [the victim’s] place and watching his house, and even of preparing the rope to tie him, while undoubtedly done in pursuance of the intent, did not go beyond mere preparation, and had the intent been abandoned at this point, an indictment for an attempt to commit robbery or burglary could not have been sustained. But the moment a blow was struck on [the victim] the first step of the actual crime had been taken, and the intent was merged in the attempt. Subsequent abandonment might prevent the completion of the crime, but could not save from the consequences of acts done in the attempt.”

We recently dealt with an attempted prison breach in Commonwealth v. Skipper, In Skipper, appellant approached a fellow prisoner and asked him to procure hacksaw blades to be used in an escape attempt. The fellow prisoner, Commonwealth’s witness at trial, worked in a bakery in a day release program and was to hide the blades in loaves of bread bound for the prison kitchen. Prison officials intercepted a note that the Commonwealth’s witness attempted to pass to a third prisoner, one Schaeffer, who was to pay him for smuggling the blades into the prison. Subsequently, prison officials caught Schaeffer attempting to go over the prison wall. They found one of the smuggled blades on Schaeffer. A “shake-down” of the prison uncovered two additional blades in appellant’s cell. We reversed appellant’s conviction, noting that “discovery of the hacksaw blades in appellant’s cell did no more than interrupt appellant’s alleged plan in a preparatory stage. If the hacksaw blades were in fact procured by the appellant for use in an intended prison breach, appellant would have had sufficient time to withdraw before the commission of the offense.”

In the instant case, the evidence on the record indicates that appellant scaled a fence within the prison walls that led to the recreation yard and then to the prison wall. Appellant testified that “I went over the fence. I was in the yard.”

“Q. Well, when you say you went over the fence, this is still in the prison?”

“A. This is still in the prison, yes, sir.”

The Commonwealth’s evidence supports the appellant’s claim that he went only as far as the yard before giving up his plan to escape. Guard Szmulo testified that “We checked the trip wire. We couldn’t find nothing broke. And then when I got to the gate that goes into the recreation yard between center and left wing, I found one barbed wire was cut.” Thus appellant was still within the prison, still only contemplating a prison breach, and not yet attempting the act. He was thus in a position to abandon the criminal offense of attempted prison breach voluntarily, thereby exonerating himself from criminal responsibility.

Judgment of sentence is vacated and appellant ordered discharged on the conviction of attempted prison breach.

Watkins, P.J., and Jacobs and Spaeth, J.J., join in this opinion.

Van Der Voort, J., concurs in the result.

Concurring Opinion by Cercone, J.

I agree with the majority that appellant’s conviction for attempted prison breach should not be permitted to stand. However, I disagree with the basis for the majority’s conclusion, that the acts done by appellant prior to his decision to abandon his escape were insufficient to constitute an attempt. I would have found little difficulty, for instance, in affirming appellant’s conviction had he been apprehended by the guards immediately after he had snipped the barbed wire and crossed the inner fence. To hold otherwise is to require that prisoners must literally be plucked from the prison wall before their conduct may be characterized as attempted prison breach.

I respectfully suggest that the majority has fallen into a trap peculiarly common to the law of attempts. As Professor Perkins has stated in discussing when conduct ceases to be merely preparatory and becomes perpetration: “The preparatory-perpetrating dichotomy is useful in discussing situations of a rather general nature, but the actual dividing line between the two is shadowy in the extreme. There is reason to believe that in close cases the decision is based upon other considerations and that the label attached is that appropriate to the conclusion reached—after it is reached.” R. Perkins, Criminal Law 561 (2d ed. 1969). [Emphasis added.]

The “other consideration” which has influenced the majority herein is appellant’s voluntary abandonment of his escape plan. In my opinion, appellant’s abandonment of his plan is a sufficient defense to the crime of attempted prison breach and should be recognized as such.

As a practical matter, it has long been recognized that plans voluntarily abandoned are less likely to be found to be attempts than are plans carried to the same point, but interrupted by the apprehension of the perpetrators. Unfortunately, in jurisdictions where voluntary abandonment or renunciation of a criminal purpose has not been recognized as an affirmative defense, the courts have sought to give effect to the defendant’s abandonment, sub silentio, by characterizing his conduct as “preparatory.” See Model Penal Code § 501, comment 19 at p. 70 (Tent. Draft No. 10, 1958). That is precisely the error which the majority has made in the instant case. The difficulty with this position is that, with regard to the preparation-perpetration dichotomy, it breeds results superficially inconsistent. If voluntary abandonment is to be given effect in attempt cases, it should not be done covertly.

For some time the trend in the law has been to recognize voluntary abandonment as an affirmative and complete defense to a charge of attempt, despite the exhortations to the contrary by some commentators. And, in following this trend our legislature substantially adopted section 5.01 of the Model Penal Code in drafting the attempt provisions in our recently enacted Crimes Code. Our Code now recognizes that abandonment under circumstances indicating voluntariness, is a complete defense to a charge of attempt. Appellant, however, was charged under our old Penal Code which did not speak to whether voluntary abandonment was a defense to a charge of attempt.

In one of the first cases ever decided by this court, we stated: “In the case under consideration, Johanna Tadrick left her mother’s house, intending to steal the prosecutor’s money, entered the house of the prosecutor and seated herself on the bed where she knew the money was concealed. Nothing remained to be done save to insert her hand and secure the money. Each of the three acts mentioned was intended to be, and actually was, a step towards the consummation of her felonious purpose. Taken together and in connection with the uninterrupted intent existing in her mind, we are compelled to hold that they constituted an attempt at larceny which would have been punishable had she gone no further. If the offense of larceny were not completed, we must assume, from the evidence, that the failure was not owing to a change of purpose, which of course would leave her guiltless, but to extraneous circumstances, over which she had no control. An overt act is one which manifests an intention to commit the crime: Bouvier’s L.D. 267. It need not be the last proximate act prior to the consummation of the attempted crime, if the latter be a felony: Uhl v. Commonwealth, 6 Grattan, 706; 1 Bish. Crim. Law, sec. 764.” Commonwealth v. Tadrick, 1 Pa.Super. 555, 566 (1896).

It is clear that this court long ago perceived voluntary abandonment to be an affirmative defense to the crime of attempt; and, I have not been referred to any Pennsylvania authority which persuades me that this court’s implicit conclusion was then erroneous, nor any authority to indicate that this court’s observation in Tadrick has not withstood the test of time. On the contrary, as aforementioned, voluntary abandonment is now recognized in Pennsylvania as a statutory defense to an attempt charge.

Sound policy reasons also underlie the recognition of voluntary abandonment as an affirmative defense. As the drafters of the Model Penal Code have pointed out, the defense of complete and permanent abandonment should be allowed because voluntary abandonment negates the conclusion that the accused continues to be dangerous; and, the knowledge that voluntary abandonment exonerates one from criminal liability provides a motive to desist prior to completion of the crime. Model Penal Code § 5.01, comment 19 at pp. 71-72 (Tent. Draft No. 10, 1958). See also Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum. L. Rev. 571, 617 (1961).

Thus, I have concluded that the law in Pennsylvania recognized voluntary abandonment as an affirmative defense even prior to the adoption of the Crimes Code. In any event, the trend in the United States is so profoundly in favor of such a defense that we should have recognized its existence in the instant case even had the Crimes Code not been enacted. Furthermore, I think it would be erroneous to construe the attempts provision of the Crimes Code as somehow implying that the law was otherwise prior to the Code’s adoption. On the contrary, I think the adoption of that provision only fortifies the conclusion I have reached herein.

Therefore, I would not rest the decision of this case on the basis that appellant’s acts prior to renunciation of his criminal purpose were merely preparatory; for, as has my brother, Judge PRICE, I have concluded that appellant had clearly gone further than preparation. Rather, I would rest the instant decision on appellant’s unequivocal and undisputedly voluntary abandonment of his criminal purpose. Thus, I only concur in the result reached by the majority herein.

Spaeth, J., joins in this opinion.

Dissenting Opinion by Price, J.

I cannot agree with the majority’s conclusion that appellant’s acts were confined to preparation and contemplation, therefore, I must respectfully dissent.

The facts are fully set forth in the majority opinion and need not be repeated. The evidence is sufficient to establish that appellant went over a forbidden fence, albeit still within the physical confines of the prison, cut a piece of barbed wire and tripped the alarm system designed and equipped to alert the authorities to attempts at prison breach, Any one of these three acts would, in my opinion, take appellant beyond preparation and contemplation. Accordingly, there is more than sufficient evidence to sustain appellant’s conviction.

I would affirm the judgment of sentence.

Are the defendants guilty of conspiracy?

The minors, Angel G., Jose E., Sergio G., Pedro G., and Diego G., appeal from judgments entered after the juvenile court sustained Welfare and institutions, second 602 petitions alleging that they committed assault with a deadly weapon and by means of force likely to produce great bodily injury, conspiracy, misdemeanor possession of a deadly weapon with intent to assault, and battery resulting in serious bodily. The juvenile court found true an allegation that Jose committed misdemeanor vandalism. The juvenile court also found true, as to all five minors, allegations that they committed the assault and battery to benefit a criminal street gang. The juvenile court committed Diego, Angel, Pedro, and Sergio to the Ranch. It committed Jose to the California Youth Authority (CYA).

On March 22, 2000, at about 11:00 a.m., 20-year-old Daniel Garcia and his girlfriend, Sylvia Villa, were outside of Garcia’s house on Lavonne Avenue. Several cars were parked in the driveway, including Garcia’s red El Camino and a maroon rental car. Garcia was wearing a red shirt. Meanwhile, the five minors were walking down Lavonne Avenue. They attended MACSA, a nearby school, and classes had just ended for the day. The five minors were headed for Jose’s house. They were accompanied by one other boy and four girls: Angelica R., Sonia M., Silvia L., and Biridiana C. They walked next to a group of five or six other students.

Garcia noticed “about 15 guys walking [in] the middle of the street.” He recognized their MACSA uniforms. At first, the group of boys “were just staring” at Garcia and Villa. The boys gathered in front of Garcia’s house. The boys began “throwing 3 signs,” gesturing with three fingers extended, and saying “sur.” Garcia understood these signals to indicate that the boys were associated with a Sureno gang.

Garcia told the boys to “get out of here.” The boys “stood there for a moment,” and then ran to a neighboring yard, where they picked up rocks from a broken-up driveway. Armed with the rocks, the boys “all started running toward me and starting throwing them.” Garcia told his girlfriend and his mother to go inside the house, “because it was raining rocks.” He told his mother to call 9-1-1.

Garcia was in the middle of his driveway when the boys began throwing rocks. Some of them approached with more rocks after the initial barrage. Garcia picked up a plastic broomstick and chased one boy across the street. He caught up to the boy and struck him on the back of the leg. Garcia returned to his driveway. As he looked for his mother, he was struck by a rock. He fell forward, hitting his head on a cement pole, and lost consciousness.

When Garcia was struck, one of the boys shouted, “I hit him. I hit him. I got him. I got him.” At about the same time, a neighbor, Silvino Carillo, came running over. He was holding a vice grip and telling the boys to go home. All but one of the boys fled, running towards MACSA. One of the minors did not leave, however; he was “trying to approach [Garcia].” Carillo later viewed a photographic line-up and circled Pedro’s photograph. He was not certain that Pedro was the boy who lingered, but believed that “it could be him.”

Before getting hit, Garcia saw one of the boys throw a rock through the rear window of the rental car. At trial, Garcia identified Jose as the person who threw the rock through the rental car window; he had previously identified him at a photographic line-up. He also identified Sergio as being one of the other rock-throwers.

Garcia spent a week in the hospital after undergoing surgery on his head. Doctors put three metal plates in his head and used about 30 staples to treat his injury. At the time of trial, Garcia still suffered from poor memory, a stutter, and pain in his head. He could not return to work.

At the dispositional hearing, the four girls accompanying the minors testified that the minors were simply defending themselves. They testified that the incident started when Garcia’s girlfriend yelled something like, “what are you looking at.” When one of the minors yelled back, Garcia got a stick and approached. Other Nortenos approached the group along with Garcia, and began throwing sticks and bricks at the minors. The minors picked them up and threw them back.

San Jose Police Detective Jorge Gutierrez testified at the dispositional hearing. He testified that Angel, Jose, Diego, and Sergio had admitted that they were members of the VML (Varrio Mexicanos Locos) gang, while Pedro had admitted he was a member of the Calle Ocho gang. Both VML and Calle Ocho are Sureno gangs. Surenos identify themselves with the color blue. They also identify themselves with the number 13, making hand signs by holding up one finger on one hand and three fingers on the other. They often use the phrase “puro sur,” which means “pure south.” Their main rivals are Nortenos, who identify themselves with the color red and the number 14.

Detective Gutierrez testified that one of the “primary activities” of the VML gang was “to commit assaults under Section 245” He opined that the assault on Garcia was part of a “pattern of criminal gang activity” by the VML gang. He described another rock-throwing incident by VML gang members on victims who were wearing red clothing.

Detective Gutierrez opined that the current incident was gang-related. His opinion was based on the following facts. The minors apparently believed that Garcia was a Norteno, based on the fact that his clothes and cars were red. The incident occurred in Norteno gang territory. The minors used the phrase “puro sur” during the incident. The minors were all gang members. The minors used gang hand signals during the incident. Detective Gutierrez explained that the assault would benefit the VML and Calle Ocho gangs, and Sureno gangs in general, because they would gain notoriety, causing them to gain members and therefore, more power.

Only Diego and Sergio called witnesses. Officer Chris Wilson testified that he interviewed Garcia after the incident. Garcia stated that the minors were throwing bricks at the vehicles in his driveway, and he was hit by a brick when he tried to stop them. Sergio and Pedro’s father also testified. He asserted that his sons were in Mexico during the month preceding the incident; this testimony was introduced to rebut Detective Gutierrez’s testimony that Sergio had recently become a gang member. After the dispositional hearing, the juvenile court committed Diego, Angel, Pedro, and Sergio to the Ranch. It committed Jose to CYA. It set the maximum time of confinement (MTC) for Diego and Angel at seven years, eight months. It set the MTC for Pedro and Sergio at eight years, four months. It set the MTC for Jose at 10 years, four months.

All five minors present attacks on the sufficiency of the evidence.

“A conspiracy is an agreement by two or more persons to commit any crime. A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to commit a public offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. ”

The minors contend there was no evidence that they entered into an agreement to commit a battery. The juvenile court made the following findings on this point: “The prosecution alleges that there was a mutual understanding among the juveniles to throw rocks at Daniel in order to commit a battery with serious bodily injury. She supports this allegation by arguing that since none of the juveniles deviated from the rock throwing behavior (i.e., no one engaged in other forms of physical combat with the victim), the existence of a tacit agreement must be inferred. She contends that there was a mutual understanding among them, all fellow gang members, to batter Daniel, who was in their minds a Norteno and, therefore, an enemy, by throwing rocks at him. The Court agrees. By the time that the juveniles simultaneously dispersed to gather rocks, the agreement to batter Daniel was in place.”

The minors challenge the juvenile court’s findings. They claim that the evidence shows merely their association and spontaneous action, not a “jointly conceived plan.”

The agreement or the unlawful design of conspiracy may be proved by circumstantial evidence without the necessity of showing that the conspirators met and actually agreed to commit the offense which was the object of the conspiracy. [“While mere association does not prove a criminal conspiracy, common gang membership may be part of circumstantial evidence supporting the inference of a conspiracy. The circumstances from which a conspiratorial agreement may be inferred include ‘the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties [and] the interests of the alleged conspirators’…”].

In People v. Quinteros, the defendant was charged with murder, conspiracy, and assault. He and two other codefendants were members of a gang. The scene of the incident was a state beach in gang territory. The victim had an altercation with the defendant inside a restroom, during which the defendant issued a “standard gang challenge,” informing the victim that he had intruded into gang territory. After the fight, the defendant whistled and beckoned for the other gang members, and told them what had happened. One of the coconspirators said, “let’s go get him.” The defendant bashed the victim’s vehicle windows while other gang members beat the victim, killing him. The trial court granted the defendant’s motion to dismiss the charges, but the Court of Appeal issued a writ vacating the order. The court found “abundant” evidence of a conspiratorial agreement.

Here, there was no direct evidence of an explicit command to get the victim. However, the circumstantial evidence strongly suggests that the minors came to an agreement to gather rocks and throw them at Garcia. The minors—all Surenos—approached Garcia all together after they apparently noticed his red cars and red shirt, which indicated to them that he was a Norteno. They issued a gang challenge, throwing gang signs and indicating their gang affiliation. After Garcia told them to leave, the minors “stood there for a moment.” The minors then collected rocks from a nearby yard, and ran back, throwing the rocks at Garcia. Based upon these facts, the juvenile court could reasonably infer that the minors came to an agreement together just before they gathered the rocks. Moreover, the minors dispersed after Garcia was hit with a rock. This indicates that the object of their conspiracy was achieved.

Here, the juvenile court’s finding of an agreement is based on more than mere speculation. The record supports the inference that the minors believed the victim to be a rival gang member, based on the color of his clothing and vehicles, and formed an agreement to assault him after he refused to be intimidated. Their belief that he was a rival gang member, and their intent to intimidate him, was shown by the fact that they stopped in front of his house, stared at him, and used hand signals and phrases to indicate their gang affiliation. After Garcia ordered them to leave, they stood together for a moment, and then all gathered rocks. They all threw the rocks at Garcia. These facts indicate that the minors together formed a plan to respond to Garcia by throwing rocks at him.

Finally, the minors cite to United States v. Garcia, where the court held that “gang membership itself cannot establish guilt of a crime, and a general agreement, implicit or explicit, to support one another in gang fights does not provide substantial proof of the specific agreement required for a conviction of conspiracy to commit assault.” In that case, members of both the Crips and Bloods gangs attended a party. The defendant identified himself as a Blood and made general gang challenges to some Crips. Other Bloods did the same; however, “neither … had arrived with Garcia, nor is there any indication that they had met before the party to discuss plans or that they were seen talking together during the party.” The altercations led to shooting. In concluding there was insufficient evidence to support the defendant’s conspiracy conviction, the court explained: “The government presented no witnesses who could explain the series of events immediately preceding the shooting, so there is nothing to suggest that the violence began in accordance with some prearrangement. The facts establish only that perceived insults escalated tensions between members of rival gangs and that an ongoing gang- related dispute erupted into shooting. Testimony presented at trial suggests more chaos than concert. Such evidence does not establish that parties to a conspiracy ‘worked together understandingly, with a single design for the accomplishment of a common purpose.’”

Substantial evidence also supports the trial court’s finding of an overt act in furtherance of the conspiracy. The information alleged that each minor “did approach [the] victim.” The trial court found that “the juveniles did approach Daniel to throw rocks at him. Their approach constituted an overt act in furtherance of the conspiracy to commit the battery. Indeed, even if only one of them had come forward to throw rocks at Daniel, the overt act would have occurred. Here, at least two of the juveniles were identified as approaching the victim in this fashion—Sergio and Jose.”

Contrary to Sergio’s claim, the trial court did not find that the overt act was committed when the minors initially approached the victim and threw gang signs at him. The record supports the trial court’s finding that the overt act was committed when the minors approached the victim to throw rocks at him after the agreement was in place.

This case is markedly different from the above case. Here, the minors were together when they approached the victim. Together, they threw gang signals and made comments indicating they were challenging the perceived Norteno. Together, they dispersed to collect the rocks, and together, they threw the rocks at Garcia. The evidence supported a finding that they had a common understanding and purpose—to assault Garcia.

We conclude that substantial evidence supports the juvenile court’s true findings as to the conspiracy allegations.

7.6. People v. Saephanh, 80 Cal.App.4th 451

A single-count information filed on August 12, 1998, in Kings County Superior Court charged appellant Lou Tong Saephanh with solicitation of murder in violation of Penal Code section 653f, subdivision, On October 7, 1998, after a two-day jury trial, appellant’s motion for acquittal as denied, and appellant was subsequently found guilty.

In October and November 1997, appellant had consensual sexual intercourse with Cassandra Y. Cassandra became pregnant and, in January 1998 while appellant was in prison, she informed appellant of her pregnancy. Appellant first asked if the baby was his and, when told it was, exclaimed, “Oh, I’ve been wanting a baby for a long time.” Cassandra and appellant spoke about the baby every week and appellant was excited.

In May 1998, while still incarcerated, appellant wrote a letter dated May 22, 1998, to his friend and fellow gang member Cheng Saechao, also known as O. Dee. In pertinent part, it stated, “By the way loc, could you & the homies do me a big favor & take care that white bitch, Cassie for me. ha, ha, ha!! Cuzz, it’s too late to have abortion so I think a miss carrage would do just fine. I aint fista pay child sport for this bull-shit loc. You think you can get the homies or home girls do that for me before she have the baby on Aug. ‘98.” At the time he wrote the letter, appellant was upset. He did not want to pay child support.

Vicki Lawrence, a correctional officer at Corcoran State Prison working for the investigative service unit, testified that when an indigent inmate wishes to send a letter, he puts it into a night drop for processing through the mail room where the letter is stamped for delivery. Lawrence found the letter in her “in box.” The investigative unit reviews inmate correspondence placed in the institution’s mail system. According to Lawrence, she opened and read the letter appellant had written. She immediately notified her supervisor, Sergeant Basinger. The letter was thus intercepted by the institution’s internal investigative unit and never reached the addressee.

Rick Bellar, an investigator with the Kings County District Attorney’s Office, read a copy of the letter that Basinger provided him and thereafter interviewed Cassandra, Cheng Saechao and appellant. Bellar interviewed appellant on June 2, 1998, at Corcoran State Prison. Appellant admitted writing the letter and that he was serious when he wrote it. Appellant told Bellar that when he wrote the letter, he was thinking that if Cassandra did not let him be a part of the baby’s life, he wanted to “get rid of the baby.” Appellant did not want to pay child support. Appellant was angry because Cassandra did not seem to love him, and there was an argument in which Cassandra told appellant he could not see the baby. Appellant expected Saechao and other gang members to punch Cassandra in the stomach during a fight or have her fall, thereby causing a miscarriage.

Appellant told Bellar he later called Saechao and told him to ignore the letter, but Saechao did not know what letter appellant was talking about.

Appellant contends there is insufficient evidence to support his conviction for solicitation of murder because the evidence establishes that the soliciting communication was not received by the intended recipient and, in fact, establishes no one was solicited. He asserts that California’s solicitation statute, section 653f, requires proof of a completed communication. He suggests a “completed communication” occurs only when the intended recipient of the communication receives it.

Section 653F (subdivision b provides: “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.”

Appellant acknowledges no published California case has so held and notes the issue is one of first impression in California. According to appellant, however, “two other states which have considered the issue under solicitation statutes similar to [California’s section 653f], Oregon and New Mexico,” concluded solicitation requires a “completed communication,” i.e. one which was received by the intended recipient. He contends these authorities should be applied in California.

In State v. Cotton (1990) 109 N.M. 769 [790 P.2d 1050], the defendant was convicted of two counts of criminal solicitation. While he was incarcerated in New Mexico, he wrote two letters to his wife in Indiana suggesting that she warn their daughter not to testify against defendant on molestation charges and that she persuade their daughter to leave New Mexico and go to Indiana. Neither letter ever reached defendant’s wife, both having landed in the hands of law enforcement. On appeal, the defendant claimed insufficient evidence to support the solicitation convictions because the letters never reached the intended recipient, the defendant’s wife.

The New Mexico Court of Appeal agreed. First, it noted that New Mexico’s criminal solicitation statute “adopts in part, language defining the crime of solicitation as set out in the Model Penal Code promulgated by the American Law Institute.” The court distinguished New Mexico’s statute from the Model Penal Code, noting that New Mexico’s solicitation statute “specifically omits that portion of the Model Penal Code subsection declaring that an uncommunicated solicitation to commit a crime may constitute the offense of criminal solicitation. The latter omission, we conclude, indicates an implicit legislative intent that the offense of solicitation requires some form of actual communication from the defendant to either an intermediary or the person intended to be solicited, indicating the subject matter of the solicitation.” Thus, by adopting in part the Model Penal Code section defining solicitation but omitting language from that section criminalizing uncommunicated solicitations, the New Mexico Legislature intended that the New Mexico statute not criminalize uncommunicated solicitations.

In State v. Lee (1991) 105 Or. App. 329 [804 P.2d 1208], the Oregon Court of Appeal reached a similar result. There, the defendant, while in jail, wrote letters to an acquaintance in a juvenile center outlining plans to rob a store and residence. Authorities in the juvenile center intercepted the letters, which never reached the intended recipient. The defendant was convicted of solicitation to commit robbery. On appeal, he argued lack of evidence to sustain the conviction because the letters were never received by the intended recipient.

Citing Cotton and apparently following its reasoning, the Oregon court noted Oregon’s criminal solicitation statute “was based, in part, on the Model Penal Code.” As did the court in Cotton, the Lee court noted the omission of Model Penal Code language criminalizing uncommunicated solicitations in Oregon’s criminal solicitation statute. “Significantly, the legislature did not adopt the provision of the Model Penal Code that specifically provides that solicitation may be based on an incomplete communication.” The court concluded a completed communication is required to prove the crime of solicitation. The court determined attempted solicitation is a necessarily included offense of solicitation and remanded for entry of judgment of conviction on that crime.

Respondent agrees no California authority has directly addressed the issue of whether one may be found guilty of solicitation where the intended recipient of the soliciting communication never received the message. Respondent notes there is a split in authorities from other jurisdictions addressing the issue.

In People v. Lubow (1971) 29 N.Y.2d 58 [323 N.Y.S.2d 829, 272 N.E.2d 331], cited by respondent, the New York court concluded that state’s criminal solicitation statute included in the crime uncommunicated solicitations. The court noted the New York statute indicated one is guilty of solicitation if, with the intent another engage in criminal conduct, the defendant “solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.” The court noted New York’s statute stems from the Model Penal Code. The court pointed to that portion of the New York statute stating one is guilty of solicitation if he solicits another to engage in criminal conduct, “or otherwise attempts to cause” such conduct. The court found “[t]his has the same effect as the Model Penal Code.” The court held, “[A]n attempt at communication which fails to reach the other person may also constitute the offense for the concluding clause ‘or otherwise attempts to cause such other person to engage in such conduct’ would seem literally to embrace as an attempt an undelivered letter or message initiated with the necessary intent.” Thus, the New York court reached a different conclusion as to the meaning of the “otherwise attempts” language in the New York statute than did the Cotton court as to the meaning of identical language in the New Mexico statute.

Does California’s section 653f include in its ambit solicitations not received by the intended recipient? Cotton and Lee concluded the New Mexico and Oregon Legislatures intended their solicitation statutes to require a solicitation be received by the intended recipient for criminal liability to attach on the basis of the omission from their statutes of language contained in the Model Penal Code on which those statutes are based. Section 653f, enacted in 1929, is not based on the Model Penal Code. Thus, we disagree with appellant that Cotton and Lee examined “solicitation statutes similar to California’s Penal Code section 653f,” at least in terms of legislative history and intent. We find Cotton and Lee unpersuasive on the issue of whether section 653f criminalizes the making of soliciting communications not received by the intended recipient.

Likewise, Lubow provides no guidance on the issue because in that case the court noted New York’s solicitation statute stems from the Model Penal Code. The court found that the “or otherwise attempts” language in the statute was akin to subsection 2 of Model Penal Code section 5.02. Section 653f, not derived from the Model Penal Code, does not contain attempt language.

As have the parties, we have located no California case squarely addressing the question of whether the intended recipient of a solicitation must receive the solicitation for liability to attach under section 653f .

As noted, section 653f, subdivision (b) provides: “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.”

The plain language of section 653f, in particular the phrase “solicits another,” demonstrates that proof the defendant’s soliciting message was received by an intended recipient is required for liability to attach. The facts of this case are illustrative of the plain meaning of the statute. Here, appellant intended to ask Saechao and the “homies or home girls” to kill Cassandra’s fetus. However, neither Saechao nor the “homies or home girls” ever received the soliciting message. Thus, appellant did not solicit Saechao or the specifically designated others.

Respondent nonetheless contends the harm is in the asking and suggests the crime of solicitation was complete when appellant “deposited the correspondence with the requisite criminal intent.” According to respondent, solicitation has two elements, a request to do a crime and intent that it be completed. Thus, respondent asserts, “appellant’s letter was the murder request and, when he dropped it off to be mailed, he possessed the requisite criminal intent, thus satisfying both the elements to criminal solicitation.”

We disagree that the letter, never received by any person appellant intended to solicit, in itself constitutes a “request” as that term may be applied in interpreting section 653f. Evidence appellant wrote the letter to Saechao is insufficient to show appellant actually requested Saechao, or the “homies or home girls” commit murder, in the absence of evidence any one of them received the letter. This is so even though appellant posted the letter. The crime of solicitation defined by section 653f requires that two or more persons must be involved, at least one being necessarily a solicitor and the other necessarily being the person solicited.

We agree with appellant that solicitation requires a completed communication.

Respondent insists that even if solicitation requires a completed communication, Vicki Lawrence, the correctional officer, received the letter. In our view, this argument evades the issue of whether appellant “solicited another.” Appellant did not ask Vicki Lawrence to kill anyone, or do anything for that matter. She was not a person solicited.

Section 653f has the twofold purpose of protecting the inhabitants of California from being exposed to inducement to commit or join in the commission of crimes and preventing solicitations from resulting in the commission of the crimes solicited. Uncommunicated soliciting messages do not expose others to inducements to commit crimes. Nor is there a likelihood that an uncommunicated message would result in the commission of crimes. Thus, letters posted but not delivered do not give rise to the dangers from which section 653f seeks to protect society.

However, messages urging commission of a crime which are received expose individuals to invitation to crime and create a risk of criminal activity. Criminalizing completed solicitations furthers the policies of protecting individuals from exposure to inducements to commit crimes and preventing commission of the crimes solicited. Thus, a conviction for a violation of section 653f requires proof that the person solicited received the soliciting communication. One cannot “solicit another” without a completed communication. The communication is only completed when it is received by its intended recipient.

Appellant did not ask Vicki Lawrence to kill Cassandra’s fetus and appellant was unsuccessful in asking Saechao (or, for that matter, the “homies or home girls”) to do so because his letter was intercepted. Appellant did not “solicit another” to commit murder within the meaning of section 653f, subdivision (b). Thus, his conviction for solicitation of murder cannot stand.