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
The court has a sua sponte duty to give an instruction deﬁning the elements of the
If the minor is 16 or 17 years old, the jury must ﬁnd that the defendant is at least 5
years older and the court must instruct sua sponte on element 3A. (Pen. Code,
§ 653j(a).) Give element 3B if element 3A does not apply.
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. Penal Code section 653j lists those
offenses that may be the target of a solicitation of a minor. 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 4.
Authority is divided on whether the judge or jury is to determine the number of
solicitations if multiple crimes were solicited by the defendant. The bracketed
portion at the end of the instruction should be given if multiple solicitations have
been charged and the trial court determines that this is a question for the jury.
(Compare People v. Davis (1989) 211 Cal.App.3d 317, 322–323 [259 Cal.Rptr.
348] with People v. Morocco (1987) 191 Cal.App.3d 1449, 1454 [237 Cal.Rptr.
113].) If the court decides to present this issue to the jury, multiple target offenses
must be inserted in elements 1 and 2, and the paragraph immediately following the
• Elements. Pen. Code, § 653j.
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 34.
CALCRIM No. 442 AIDING AND ABETTING