What are the types of conspiracy in California?
California has two types of conspiracy, which are outlined in Penal Code sections 182 and 182.5. They are generally referred to as “traditional conspiracy” and “section 182.5 conspiracy.”
A traditional conspiracy is defined as “an agreement between two or more people to commit any crime, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance thereof.” (People v. Lopez (2020) 46 Cal.App.5th 505, 519.) Thus, generally speaking, to have a conspiracy, there needs to be (1) an agreement of two or more persons, (2) intending to do an act that’s a crime, (3) with an overt act. An overt act is “an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime.” (People v. Johnson (2013) 57 Cal.4th 250, 259.)
To have a traditional conspiracy, the crime that the coconspirators agreed to commit does not need to be completed. (People v. Lopez, supra, 46 Cal.App.5th at p. 519.) And the California Supreme Court has specified that a conspiracy allows for separate punishment from the completed crime. (People v. Johnson, supra, 57 Cal.4th at p. 258.) Penal Code section 182 provides for several different punishments for participating in a conspiracy, depending on the crime that the coconspirators agreed to commit.
Section 182.5 Conspiracy
Penal Code section 182.5 was enacted by California voters in 2000 and created a new form of conspiracy that is different from traditional conspiracy. (People v. Johnson, supra, 57 Cal.4th at p. 261.) This section provides as follows:
Notwithstanding subdivisions (a) or (b) of Section 182, any person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.
(Pen. Code, § 182.5.) Thus, to be found guilty of a section 182.5 conspiracy, there must be (1) active participation in a street gang; (2) with knowledge that the members engage in crimes; and (3) promotion, furthering, assistance, or benefit from the criminal conduct of the gang. And if these requirements are met, a section 182.5 conspiracy can be punished in the same way as a traditional conspiracy.
It should be noted that a section 182.5 conspiracy is completely separate from any gang enhancements that may be attached to a particular crime under Penal Code section 182.66.
What are the differences between the two types of conspiracy?
The California Supreme Court has identified that there are five main differences between a traditional conspiracy and a section 182.5 conspiracy:
First, under traditional conspiracy, the coconspirators do not need to have previously known each other, and they only need to agree to commit a single crime. (People v. Johnson, supra, 57 Cal.4th 250 at pp. 261-262.) By contrast, for a section 182.5 conspiracy, a defendant “a defendant cannot be a complete stranger to the gang. He or she must be an active gang participant with knowledge of other members’ pattern of criminal gang activity.” (Id. at p. 262.)
Second, a traditional conspiracy can be an agreement to commit any crime, including a misdemeanor. (People v. Johnson, supra, 57 Cal.4th 250 at p. 262.) By contrast, section 182.5 conspiracies relate only to committing a felony. (Ibid.)
Third, a traditional conspiracy requires that there be both the specific intent to agree and also the specific intent to commit a crime. (People v. Johnson, supra, 57 Cal.4th 250 at p. 262.) By contrast, section 182.5 does not require a prior agreement. (Ibid.) Rather, the act of assistance or promotion of criminal conduct “replaces the required prior agreement to commit a crime that is ordinarily at the heart of a traditional conspiracy.” (Ibid.)
Fourth, a person is liable for a traditional conspiracy once there is an “overt act.” (People v. Johnson, supra, 57 Cal.4th 250 at p. 262.) Conversely, “[a] 182.5 conspiracy requires the actual commission of felonious criminal conduct as either an attempt or a completed crime.” (Ibid.)
Fifth and finally, as stated by the California Supreme Court, section 182.5 “embraces an active and knowing participant who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense.” (People v. Johnson, supra, 57 Cal.4th 250 at p. 262.) This has been described as a “substantial expansion” of the traditional doctrine of conspiracies, as it permits individual gang members who benefitted from a particular crime to be convicted of conspiracy to commit the crime from which they benefited. (Ibid.)
What are the defenses to conspiracy?
For traditional conspiracy, withdrawal from the conspiracy is a partial or complete defense. To have an effective withdrawal requires “an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the coconspirators.” (People v. Sconce (1991) 228 Cal.App.3d 693, 701.) In other words, you have to affirmatively reject the conspiracy and let the other coconspirators know. There are essentially two scenarios where withdrawal can take place:
Withdrawal before the overt act
If a coconspirator withdraws from the conspiracy before the overt act takes place, he or she has a complete defense and cannot be liable for either the conspiracy or the target offense. (People v. Sconce, supra, 228 Cal.App.3d at pp. 701-702.)
Withdrawal after the overt act
In contrast, if withdrawal from the conspiracy occurs after the overt act occurs, the coconspirator is still liable for conspiracy, but cannot be held liable for the future criminal acts of the other coconspirators. (People v. Sconce, supra, 228 Cal.App.3d at pp. 701-702.)
It should be noted that withdrawal does not appear to be a defense to section 182.5 conspiracies.