People v. Cook

• Decision Date: 17 February 1984
• Citation: 151 Cal.App.3d 1142,199 Cal.Rptr. 269
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Terry Ray COOK, Defendant and Appellant. A019400.

Page 269

199 Cal.Rptr. 269

151 Cal.App.3d 1142

The PEOPLE of the State of California, Plaintiff and Respondent, v. Terry Ray COOK, Defendant and Appellant.

A019400.

Court of Appeal, First District, Division 3, California.

Feb. 17, 1984.

Hearing Denied April 26, 1984.

Sheldon Portman, Public Defender, Robert A. Weeks, Thomas H. Dettmer, Deputy Public Defenders, County of Santa Clara, San Jose, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Herbert F. Wilkinson, Martin S. Kaye, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SCOTT, Associate Justice.

Appellant Terry Ray Cook was charged with four counts of solicitation to commit murder. (Pen.Code, § 653f, subd. (b).) After submitting the matter on the preliminary examination transcript, he was found guilty as charged. He received consecutive sentences of one year and four months on each count, with the final four months stayed pursuant to Penal Code section 1170.1, subdivision (a). These sentences were also consecutive to a term appellant is currently serving. Appellant's primary contention is that the evidence establishes that he committed only one offense, not four. In the alternative, he argues that the imposition of consecutive sentences violates Penal Code section 654.

While appellant was in jail, he asked a cellmate, Dwight Abbot, to kill four people when Abbot was released, in exchange for a "couple thousand dollars" and a Mustang automobile. He asked Abbot to kill a young rape victim of appellant's, whom he wanted killed because she had testified against him. Appellant also wanted Abbot to rape and torture her and tell her why she was being killed. He asked Abbot to kill her parents, because they did not prevent her from testifying against him. Finally, he asked Abbot to kill her girl friend, who would probably be with her when Abbot found the rape victim. Appellant's conversations with Abbot about the killings extended over a period of time, about two weeks. Appellant wrote a description of these victims; that document was admitted into evidence.

I

The crime of solicitation consists of asking another to commit one of the crimes specified in Penal Code section 653f, with the intent that the crime be committed. (People v. Bottger (1983) 142 Cal.App.3d 974, 984, 191 Cal.Rptr. 408.) The gist of the offense is the solicitation, and the offense is complete when the solicitation is made. It is immaterial that the crime which is the object of the solicitation is never accomplished, that no overt acts are taken toward its accomplishment, or even that the crime is impossible to accomplish. (People v. Shapiro (1959) 170 Cal.App.2d 468, 479, 338 P.2d 963; Laurel v Superior Court (1967) 255 Cal.App.2d 292, 298, 63 Cal.Rptr. 114.) Section 653f has a twofold purpose: to protect individuals from being exposed to inducement to commit or join in the commission of crimes, and to prevent solicitations from resulting in the commission of the crimes solicited. (Benson v. Superior Court (1962) 57 Cal.2d 240, 243, 18 Cal.Rptr. 516, 368 P.2d 116.) Section 653f, subdivision (b), prohibits soliciting another to commit murder.

Briefly stated, appellant's argument is that the gist of the offense is the solicitation itself, and that the evidence here establishes only one incitement or solicitation, notwithstanding that four potential victims were involved. In support of his argument, he draws an analogy to the crime of conspiracy, and in particular to the principle that a single conspiracy may embody an agreement to commit several crimes. (See Braverman v. United States (1942) 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23; People v. Cossey (1950) 97 Cal.App.2d 101, 110, 217 P.2d 133.) He also relies on Penal Code section 7, which provides in relevant part, "... the singular number includes the plural, and the plural the singular." He reasons that in light of section 7, the prohibition against soliciting the commission of "murder" in section 653f, subdivision (b), must be read to include murders, and that therefore he has committed only one offense.

We have found no California case precisely on point, but at least one other court has squarely considered the question at hand. In Meyer v. State (1981) 47 Md.App. 679, 425 A.2d 664, defendant was convicted of four counts of solicitation of murder, after soliciting his cellmate to kill his ex-wife, two policemen, and another man. As does appellant in this case, defendant argued that despite the multiplicity of victims, the evidence established a single solicitation; he too relied on Braverman v. United States, supra, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 to urge that if a single agreement to commit more than one unlawful act is but one conspiracy, the same rule should apply to criminal solicitation.

First, the Meyer court rejected the notion that there could not be successive and distinct incitements or solicitations in one conversation; it also rejected as too simplistic the theory that there are necessarily as many solicitations as potential victims. (Meyer v. State, supra, 425 A.2d at pp. 669-670.) As for the analogy to conspiracy, the court explained that even if it were to accept that analogy, the question of whether there had been one solicitation or several would still depend on the circumstances.

"Braverman, of course, but begs the question here. At best, it reinforces the requirement that we focus on the number of incitements and not solely on the number of victims. The number of victims is important only as it may be evidence of the number of incitements. By way of example, an entreaty made by a solicitor to blow up a building in the hope that two or more particular persons may be killed in the blast could be characterized as one solicitation, notwithstanding that implementation of the scheme might violate several different laws or, because of multiple victims, constitute separate violations of the same law. The multiple criminality of the implementation would not, in that instance, pluralize the incitement, which was singular. That is the thrust of Braverman. But that is quite different from the situation in which the solicitee is being importuned directly to commit separate and distinct acts of murder--to kill, individually, several different specified victims--possibly at different times and places and by different means and executioners....