Section 441 | CALCRIM (Jury Instructions)

completed or even started. The person solicited does not have to agree to
commit the crime.]
[If you find the defendant guilty of solicitation, you must decide how
many crimes (he/she) solicited. When deciding this question, consider the
following factors:
1. Were the crimes solicited part of a plan with a single objective or
motive or did each crime solicited have a different objective or
motive?
2. Were the crimes solicited to be committed at the same time?
3. Were the crimes solicited to be committed in the same place?
4. Were the crimes solicited to be committed in the same way?
5. Was the payment, if any, for the crimes solicited one amount or
were different amounts solicited for each crime?
Consider all of these factors when deciding whether the defendant’s
alleged acts were a single crime or
<insert number of
solicitations alleged by the People> separate crimes of solicitation.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
The court has a sua sponte duty to instruct on the elements of the target offense.
(See People v. Baskins (1946) 72 Cal.App.2d 728, 732 [165 P.2d 510].) Give all
relevant instructions on the target crime alleged. If the crime is solicitation to
commit murder, do not instruct on implied malice murder. (People v. Bottger (1983)
142 Cal.App.3d 974, 980–981 [191 Cal.Rptr. 408].)
One court has held that the person solicited must actually receive the solicitous
communication. (People v. Saephanh (2000) 80 Cal.App.4th 451, 458–459 [94
Cal.Rptr.2d 910].) In Saephanh, the defendant mailed a letter from prison containing
a solicitation to harm the fetus of his girlfriend. (Id. at p. 453.) The letter was
intercepted by prison authorities and, thus, never received by the intended person.
(Ibid.) If there is an issue over whether the intended person actually received the
communication, give bracketed element 3.
A blank has also been provided in element one to permit substituting other words
for “solicit.” Other approved language includes: to ask, entreat, implore, importune,
to make petition to, to plead for, to try to obtain, or to offer or invite another to
commit a crime. (People v. Gordon (1975) 47 Cal.App.3d 465, 472 [120 Cal.Rptr.
840]; People v. Phillips (1945) 70 Cal.App.2d 449, 453 [160 P.2d 872]; People v.
CALCRIM No. 441
AIDING AND ABETTING
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Sanchez (1998) 60 Cal.App.4th 1490, 1494 [71 Cal.Rptr.2d 309]; Laurel v. Superior
Court for Los Angeles County (1967) 255 Cal.App.2d 292, 298 [63 Cal.Rptr. 114].)
Penal Code section 653f lists those crimes that may be the target of a solicitation. If
the target crime is listed in subdivision (a) or (b) of that section, insert the bracketed
portion “[or join in the commission of].” If the target crime is listed in subdivision
(c), (d), or (e), of the section, omit that bracketed portion. (See People v. Herman
(2002) 97 Cal.App.4th 1369, 1380 [119 Cal.Rptr.2d 199.)
When instructing on the corr