Inchoate Crimes: Attempt, Conspiracy, and Solicitation

California Bar Exam Exam

Track your progress as you read

Finished sections get a check mark.

1 Exam Format and Core Skills

California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy

2 Civil Procedure

Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion

3 Constitutional Law

Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause

4 Contracts

Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies

5 Criminal Law and Procedure

Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights

6 Evidence

Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)

7 Real Property

1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures

8 Torts

Intentional Torts Against the Person: Battery, Assault, False Imprisonment, IIED Intentional Torts to Property and Defenses/Privileges Negligence: Duty and the Standard of Care Negligence: Breach, Res Ipsa Loquitur, and Negligence Per Se Causation: Actual and Proximate Cause Negligence Damages and Defenses: Comparative Fault and Assumption of Risk Strict Liability: Animals and Abnormally Dangerous Activities Products Liability Private and Public Nuisance Defamation Invasion of Privacy, Misrepresentation, and Economic Torts Vicarious Liability, Joint Tortfeasors, and Immunities

9 Business Associations

Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))

10 Community Property

General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property

11 Professional Responsibility

Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties

12 Remedies

Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection

13 Trusts

Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)

14 Wills and Succession

Intestate Succession and California Distribution Will Execution and Formalities (Attested and Holographic; California) Testamentary Capacity, Undue Influence, Fraud, Duress, and Mistake Will Components: Integration, Incorporation, Acts of Independent Significance, and Pour-Over Revocation, Revival, and Dependent Relative Revocation Lapse, Anti-Lapse, Class Gifts, Ademption, Abatement, and Exoneration Protection of the Family: Omitted Spouse and Child, Pretermitted Heirs Will Contests, Standing, and No-Contest Clauses Probate Administration, Powers of Appointment, and Will Substitutes

15 Performance Test

The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution

Inchoate Crimes: Attempt, Conspiracy, and Solicitation

Key Takeaways Explain This Topic AI

Attempt requires specific intent to commit the target crime plus an overt act beyond mere preparation; the majority/common-law test is 'dangerous proximity,' while the MPC uses a 'substantial step strongly corroborative of intent.'

Common-law conspiracy required an agreement plus the bilateral intent of two or more guilty minds; the MPC adopts a unilateral approach allowing conviction even if the only other party is a feigning undercover officer.

Each conspirator is liable for all foreseeable crimes committed by co-conspirators in furtherance of the conspiracy (Pinkerton liability) — a broader reach than accomplice liability.

Solicitation is asking, encouraging, or commanding another to commit a crime with intent that it be committed; it merges into the completed crime, attempt, or conspiracy if the solicited party agrees or acts.

Factual impossibility is NOT a defense to attempt; legal impossibility (the completed act would not be a crime) is a defense; abandonment is no defense at common law but is a defense to attempt under the MPC if voluntary and complete.

Last updated: June 2026

Attempt is a specific-intent crime regardless of the mens rea of the target offense. This produces a famous trap: there is no such thing as attempted unintentional crime — one cannot 'attempt' depraved-heart murder, felony murder, or involuntary manslaughter, because attempt requires the purpose to bring about the prohibited result. Attempted murder thus requires the specific intent to kill, even though completed murder can rest on a lesser malice state. Beyond intent, attempt requires conduct moving past mere preparation.

The common-law and majority test is 'dangerous proximity' to success — how close the defendant came and how much remained to be done. The Model Penal Code uses a more inclusive test: a 'substantial step' in a course of conduct that is strongly corroborative of criminal purpose. Under the MPC test, lying in wait, reconnoitering the scene, or possessing specialized materials can qualify, so the MPC catches defendants earlier. Attempt merges into the completed offense — a defendant cannot be convicted of both attempted murder and murder of the same victim.

Conspiracy is an agreement between two or more persons to commit an unlawful act, entered with the intent to agree and the intent to achieve the criminal objective. At common law, no overt act was required — the agreement was the crime — but most modern statutes and federal law require an overt act in furtherance (even a trivial, lawful one). The bilateral/unilateral split is crucial. The common-law bilateral approach requires at least two genuinely guilty minds; if one 'conspirator' is an undercover officer only feigning agreement, there is no conspiracy and the real defendant goes free on that count.

The MPC's unilateral approach asks only whether this defendant agreed, permitting conviction even when the only other party is a government agent. California follows the bilateral common-law rule and requires an overt act. The defining consequence of conspiracy is Pinkerton liability: each conspirator is liable for every substantive crime committed by any co-conspirator that is both in furtherance of the conspiracy and a reasonably foreseeable result of it — a reach broader than accomplice liability. Conspiracy does NOT merge with the completed target crime; a defendant can be convicted of both conspiracy to rob and the robbery.

Solicitation is enticing, encouraging, commanding, or requesting another person to commit a crime, with the intent that the person commit it. The crime is complete the instant the solicitation is made with that intent — it does not matter that the solicited party refuses. Solicitation merges into the target crime if it is committed, and into attempt or conspiracy if the solicited party agrees or takes sufficient steps. Impossibility is a recurring trap.

Factual impossibility — the crime could not be completed because of a fact unknown to the defendant (picking an empty pocket, shooting an already-dead person, buying fake drugs believed to be real) — is NOT a defense to attempt, because the defendant had the requisite intent and did all he could. Legal impossibility — the defendant completed exactly what he set out to do, but that act is not a crime (e.g., receiving goods believed stolen that were not in fact stolen) — IS a defense. Abandonment is no defense at common law: once the attempt is complete, a change of heart does not erase it.

The MPC recognizes a narrow renunciation defense to attempt where the abandonment is fully voluntary (not because of increased risk of capture) and complete.

Several structural rules separate clean answers from wrong ones. Merger: attempt and solicitation merge into the completed target offense, so a defendant cannot be convicted of both attempted robbery and the completed robbery, or of both soliciting and committing the crime. Conspiracy is the great exception — it does NOT merge, because the agreement is treated as a distinct social harm, so a defendant may be convicted and punished for both conspiracy to commit robbery and the robbery itself.

Wharton's Rule limits conspiracy where the target crime by its very nature requires the participation of two persons (dueling, adultery, bigamy, the sale-and-purchase of contraband between the only two necessary parties): those two cannot be charged with conspiring to commit that crime, though a third participant outside the necessary pair can revive a chargeable conspiracy. Relatedly, a person cannot conspire with someone who is legally incapable of committing the crime or who is a member of the class the statute protects.

The scope of a single conspiracy versus multiple conspiracies is tested through the 'chain' and 'hub-and-spoke' models: a vertical distribution chain (manufacturer to wholesaler to retailer) is usually one conspiracy because each link depends on the others, while a hub dealing separately with unconnected spokes is multiple conspiracies unless the spokes know of and depend on one another.

Withdrawal from a conspiracy is narrow: a conspirator who affirmatively notifies all co-conspirators or the authorities can cut off liability for later substantive crimes committed in furtherance (limiting future Pinkerton liability), but he remains liable for the conspiracy itself, which was complete upon agreement. To escape the conspiracy charge entirely, some jurisdictions require a full renunciation that thwarts the conspiracy's success. California specifics are heavily tested.

California follows the bilateral approach and, by statute (Penal Code section 184), requires an overt act by at least one conspirator in furtherance of the agreement — the agreement alone is not enough, unlike the pure common law. California adheres to the Pinkerton doctrine, making each conspirator liable for foreseeable crimes committed in furtherance.

For attempt, California Penal Code section 21a defines the crime as a specific intent to commit the offense plus a direct but ineffectual act toward its commission, and California courts use a 'slight-acts' formulation once intent is clearly shown — closer to the substantial-step approach than to strict dangerous proximity. Solicitation in California is limited by statute (Penal Code section 653f) to an enumerated list of serious felonies and generally requires corroboration of the solicitation, a recurring trap where the facts involve a minor or non-listed offense.

Punishment principles also differ: under the common law, solicitation and attempt were misdemeanors while the target could be a felony, but modern grading usually pegs the inchoate offense to the seriousness of the target. Finally, remember that one cannot attempt a crime defined only by reckless or negligent results, cannot be an accomplice to a strict-liability crime he could not commit, and cannot conspire alone — these 'logical impossibility' traps reward a candidate who keeps the mental-state requirements of inchoate liability firmly in view.

The Three Inchoate Crimes Compared

Feature Attempt Conspiracy Solicitation

Mental state Specific intent to commit target crime Intent to agree + intent to achieve objective Intent that another commit the crime

Act required Overt act beyond preparation (proximity / substantial step) Agreement (+ overt act in most states) The asking itself; no further act needed

Merger Merges into completed crime Does NOT merge with target crime Merges into target crime, attempt, or conspiracy

Key defense issue Factual impossibility no defense; MPC renunciation Bilateral vs. unilateral; Pinkerton scope Refusal by solicitee is no defense