California Bar Inchoate Crimes
Last updated: May 2, 2026
Inchoate Crimes questions are one of the highest-leverage areas to study for the California Bar. This guide breaks down the rule, the elements you need to recognize, the named traps that catch most students, and a memory aid that scales to test day. Read it once, then practice the same sub-topic adaptively in the app.
The rule
Inchoate crimes punish conduct that falls short of the completed target offense but poses a serious risk of harm. The three inchoate crimes are solicitation (asking another to commit a crime, with intent that it be committed), conspiracy (an agreement between two or more persons to commit a crime, plus, in most jurisdictions, an overt act), and attempt (a substantial step beyond mere preparation toward commission of the target offense, with specific intent to complete it). All three are specific-intent crimes, and merger doctrine controls whether the inchoate crime survives once the target offense is completed: solicitation and attempt merge into the completed crime; conspiracy does NOT merge (Pinkerton). California follows the majority on attempt and solicitation but uses a chained-conspiracy approach and requires an overt act for conspiracy under Penal Code § 184.
Elements breakdown
Solicitation
Asking, encouraging, or commanding another person to commit a crime with the specific intent that the crime be committed.
- Words inviting, urging, or commanding another
- Specific intent the solicited offense be committed
- Solicited crime is itself a crime
Common examples:
- Offering a hitman money to kill a spouse
- Asking a clerk to falsify business records
Conspiracy (Majority/MBE Rule)
An agreement between two or more persons to accomplish an unlawful objective, accompanied (in most jurisdictions) by an overt act in furtherance.
- Agreement between two or more persons
- Specific intent to enter agreement
- Specific intent to achieve the unlawful objective
- Overt act in furtherance (majority + federal)
Common examples:
- Two defendants planning a bank robbery and one buying a getaway map
- Pharmacist and prescriber agreeing to fill forged prescriptions
Conspiracy (California — Cal. Penal Code § 184)
California requires an overt act by ANY conspirator in furtherance of the agreement, alleged and proved at trial; bilateral approach (agreement requires at least two genuine co-conspirators).
- Agreement between two or more genuine conspirators
- Specific intent to agree and to commit target
- Overt act by any conspirator in California
- Act in furtherance of the conspiracy
Common examples:
- Bilateral approach rejects unilateral conspiracies with only feigned agreement by an undercover officer
Pinkerton Liability
Each conspirator is liable for the substantive crimes of co-conspirators committed in furtherance of the conspiracy and reasonably foreseeable.
- Defendant is a member of conspiracy
- Co-conspirator commits substantive crime
- Crime is in furtherance of conspiracy
- Crime is reasonably foreseeable to defendant
Common examples:
- Lookout liable for assault committed during agreed-upon robbery
Attempt
A substantial step (majority/MPC) or act dangerously close to completion (some jurisdictions and California's older formulation) toward committing a target crime, with specific intent to complete it.
- Specific intent to commit the target crime
- Overt act beyond mere preparation
- Substantial step strongly corroborative of intent (MPC)
- Failure to complete or abandonment too late
Common examples:
- Pointing a loaded gun and pulling trigger but missing
- Lying in wait for victim outside her home with a weapon
Impossibility Defenses
Factual impossibility is NOT a defense to attempt or conspiracy; legal impossibility (the act, even if completed, would not be a crime) IS a defense.
- Factual impossibility: facts unknown to defendant prevent completion — NOT a defense
- Legal impossibility: completed conduct not criminal — IS a defense
- True legal impossibility distinguished from mistake of fact
Common examples:
- Picking an empty pocket = factual impossibility, still attempt
- Receiving goods believed stolen but actually not stolen = factual impossibility, still attempt in most jurisdictions
Withdrawal/Renunciation
At common law, withdrawal is not a defense to conspiracy as to the conspiracy itself but cuts off Pinkerton liability for future crimes; MPC and California recognize renunciation if voluntary, complete, and the defendant thwarts the conspiracy or attempt.
- Voluntary and complete renunciation of criminal purpose
- Communication to all co-conspirators (conspiracy)
- Affirmative steps to thwart success (MPC/California)
- Not motivated by detection or increased difficulty
Common examples:
- Calling co-conspirators to abandon plan and notifying police
Merger Doctrine
Solicitation and attempt merge into the completed target offense; conspiracy does NOT merge with the completed crime, so a defendant can be convicted of both.
- If target completed: solicitation merges
- If target completed: attempt merges
- Conspiracy never merges with substantive offense
- Cannot be convicted of both attempt AND completed crime for same act
Common examples:
- Defendant who conspires to and completes robbery is guilty of both conspiracy and robbery
Common patterns and traps
The Mere-Preparation Mirage
Examiners craft attempt fact patterns where the defendant has done a lot of planning — bought equipment, scouted the location, assembled accomplices — but has not yet taken a step that unequivocally manifests criminal purpose. Candidates rush to call it attempt because the defendant is clearly culpable; the right answer often is solicitation or conspiracy alone, not attempt.
A choice reading 'Yes, attempt, because the defendant assembled the tools necessary to commit the crime' — wrong because tool-assembly is preparation, not a substantial step.
The Merger Misfire
A defendant completes the target crime, and an answer choice convicts the defendant of conspiracy AND the target offense, OR convicts of attempt AND the completed crime. The latter is wrong (attempt merges); the former is correct (conspiracy never merges). Candidates frequently flip these.
A choice reading 'Defendant is guilty of both attempted murder and murder' — wrong because attempt merges into the completed offense.
The Impossibility Trap
The defendant tries to commit a crime that's factually impossible (empty pocket, unloaded gun fired at victim who's already dead, pills believed to be cocaine but actually sugar). Candidates wrongly treat factual impossibility as a defense. It is not — the defendant is still guilty of attempt because the mens rea and substantial step are present.
A choice reading 'No, attempt fails because completion was factually impossible' — wrong because factual impossibility is not a defense.
The Unilateral-Conspiracy Switch
Many fact patterns involve an undercover officer or cooperating witness who only feigns agreement. Under the majority/MPC unilateral approach, the defendant can still be convicted of conspiracy. California follows the bilateral rule — at least two genuine conspirators are required — so feigned agreement with one undercover officer defeats conspiracy. Candidates miss the jurisdictional switch.
A choice convicting the defendant of conspiracy with an undercover officer in a California-jurisdiction question — wrong because California requires two genuine conspirators.
The Specific-Intent Slip
All three inchoate crimes require specific intent that the target offense be committed. Recklessness or knowledge that the target might occur is insufficient. Examiners create facts where the defendant knows a co-conspirator is dangerous or that bad things might happen, but does not specifically intend the result.
A choice reading 'Yes, conspiracy, because the defendant knew her co-conspirator was likely to commit the assault' — wrong because conspiracy requires specific intent that the target offense occur, not mere knowledge.
How it works
Picture this: Reyes hates her business partner Liu and tells her cousin Patel, "I'll pay you $50,000 to kill Liu." That request alone — without more — is solicitation, complete the moment the words leave Reyes's mouth with criminal intent. If Patel agrees, the two have just formed a conspiracy; under the majority rule and California's Penal Code § 184, conspiracy is complete the moment one of them commits any overt act in furtherance, like Patel buying a burner phone. If Patel then drives to Liu's house with a loaded gun and waits in the bushes, that's an attempt — a substantial step strongly corroborative of intent. If Patel actually shoots and kills Liu, the solicitation and attempt merge into murder, but the conspiracy survives as a separate conviction. The traps are everywhere: misidentifying which inchoate offense the facts establish, missing the specific-intent requirement, and forgetting that conspiracy never merges.
Worked examples
On these facts, of which inchoate crime(s) is Reyes most likely guilty?
- A Both solicitation of murder and conspiracy to commit murder, because Reyes asked Patel to kill her ex-husband and they agreed.
- B Solicitation of murder only, because California requires two genuine conspirators and Patel never intended to commit the target crime. ✓ Correct
- C Conspiracy to commit murder only, because the down payment served as the overt act required by Penal Code § 184.
- D Neither, because Patel's secret intent to defraud Reyes negates the criminal intent on both inchoate counts.
Why B is correct: California follows the bilateral approach to conspiracy: an agreement requires at least two genuine conspirators with the specific intent to commit the target offense. Because Patel only feigned agreement and never intended to commit murder, no conspiracy formed under Cal. Penal Code § 184. Solicitation, however, is complete the moment Reyes asked Patel to commit murder with specific intent that he do so — Patel's secret intent is irrelevant to Reyes's solicitation liability.
Why each wrong choice fails:
- A: This applies the unilateral approach to conspiracy, which California rejects. Even though Reyes intended to enter an agreement, no actual agreement formed because Patel never genuinely intended to commit murder. (The Unilateral-Conspiracy Switch)
- C: The down payment would qualify as an overt act if a valid conspiracy existed, but the underlying agreement is missing in California. Additionally, this answer wrongly excludes solicitation, which Reyes plainly committed by asking Patel to kill the ex-husband. (The Unilateral-Conspiracy Switch)
- D: Patel's secret fraudulent intent defeats conspiracy (no genuine bilateral agreement) but does not defeat solicitation. Solicitation looks only to the soliciting party's intent — Reyes's words and intent — not the responder's mental state. (The Specific-Intent Slip)
Is Liu most likely guilty of attempted burglary?
- A No, because Liu never broke the glass and therefore did not enter the building, which is required for burglary.
- B No, because gathering tools and surveilling the location is mere preparation that does not constitute a substantial step.
- C Yes, because Liu took a substantial step strongly corroborative of his intent to commit burglary when he raised the glass cutter to the window. ✓ Correct
- D Yes, because the factual impossibility of completing the burglary after police arrived does not negate his attempt.
Why C is correct: Under the MPC substantial-step test, attempt requires conduct that is strongly corroborative of the actor's criminal purpose. Liu's act of approaching the window at 3:00 a.m. with a glass cutter raised to the glass is precisely the kind of conduct that unequivocally manifests intent to break and enter. Mere preparation has ended; he is now in the act of carrying out the crime.
Why each wrong choice fails:
- A: This confuses attempt with the completed offense. Attempt does not require completion — that's the whole point. If Liu had entered, he would be guilty of burglary itself, not merely attempt. (The Merger Misfire)
- B: The conduct described goes well beyond mere preparation. Surveilling and bringing tools alone might be preparation, but raising the cutter to the actual target window crosses the substantial-step line. (The Mere-Preparation Mirage)
- D: This reaches the right outcome (yes, attempt) but for the wrong reason. There is no impossibility issue here — Liu was simply interrupted. Impossibility doctrine applies when the crime cannot be completed because of factual or legal circumstances unknown to the defendant, not when police interrupt the crime. (The Impossibility Trap)
Which of the following is the most accurate analysis of Reyes's liability?
- A Reyes is guilty of conspiracy to commit robbery but not felony murder, because her withdrawal cut off Pinkerton liability for crimes committed after she withdrew. ✓ Correct
- B Reyes is guilty of both conspiracy to commit robbery and felony murder, because withdrawal is never a defense once an overt act has been committed.
- C Reyes is guilty of neither charge, because her voluntary and complete withdrawal renounced the criminal purpose entirely.
- D Reyes is guilty of felony murder but not conspiracy, because the killing was a foreseeable consequence of the underlying robbery she had agreed to.
Why A is correct: At common law, withdrawal does not erase liability for the conspiracy itself once the agreement and overt act are complete — Reyes is guilty of conspiracy. However, effective withdrawal (communication to all co-conspirators before the substantive crimes occur) cuts off Pinkerton liability for future substantive crimes committed by co-conspirators. Reyes communicated her withdrawal to both Liu and Patel before the robbery, so she is not vicariously liable for the killing under Pinkerton.
Why each wrong choice fails:
- B: This overstates the withdrawal rule. While withdrawal does not eliminate liability for the already-formed conspiracy, it does cut off Pinkerton liability for substantive crimes committed by co-conspirators after the withdrawal — that's the central function of effective withdrawal. (The Merger Misfire)
- C: This applies the MPC/California renunciation defense too generously. Even under MPC, complete renunciation requires the defendant to thwart the conspiracy's success — merely telling co-conspirators "I'm out" is not enough to erase the conspiracy itself. And at common law, withdrawal never erases the completed conspiracy. (The Specific-Intent Slip)
- D: This inverts the correct answer. The conspiracy is precisely what survives — it was complete the moment of agreement plus overt act, before withdrawal. Pinkerton liability for the killing is what withdrawal cuts off, not the conspiracy itself. (The Merger Misfire)
Memory aid
SCAM the inchoates: Solicitation = ask; Conspiracy = Agree (+ overt Act); Attempt = substantial Move; Merger applies to solicitation and attempt but NEVER conspiracy. For conspiracy elements: "AGREE-INTEND-ACT."
Key distinction
The single hardest distinction is between mere preparation and a substantial step constituting attempt. Mere preparation (buying gloves, scouting the location) is not enough; the act must be strongly corroborative of criminal purpose and bring the defendant dangerously close to completion. Examiners love facts that sit right on this line — and the answer turns on whether the conduct unequivocally manifests intent.
Summary
Inchoate crimes — solicitation, conspiracy, and attempt — punish unfinished criminal conduct; all require specific intent, attempt requires a substantial step, conspiracy requires agreement plus an overt act, and only conspiracy survives merger when the target crime is completed.
Practice inchoate crimes adaptively
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Start your free 7-day trialFrequently asked questions
What is inchoate crimes on the California Bar?
Inchoate crimes punish conduct that falls short of the completed target offense but poses a serious risk of harm. The three inchoate crimes are solicitation (asking another to commit a crime, with intent that it be committed), conspiracy (an agreement between two or more persons to commit a crime, plus, in most jurisdictions, an overt act), and attempt (a substantial step beyond mere preparation toward commission of the target offense, with specific intent to complete it). All three are specific-intent crimes, and merger doctrine controls whether the inchoate crime survives once the target offense is completed: solicitation and attempt merge into the completed crime; conspiracy does NOT merge (Pinkerton). California follows the majority on attempt and solicitation but uses a chained-conspiracy approach and requires an overt act for conspiracy under Penal Code § 184.
How do I practice inchoate crimes questions?
The fastest way to improve on inchoate crimes is targeted, adaptive practice — working questions that focus on your specific weak spots within this sub-topic, getting immediate feedback, and revisiting items you missed on a spaced-repetition schedule. Neureto's adaptive engine does this automatically across the California Bar; start a free 7-day trial to see your sub-topic mastery climb in real time.
What's the most important distinction to remember for inchoate crimes?
The single hardest distinction is between mere preparation and a substantial step constituting attempt. Mere preparation (buying gloves, scouting the location) is not enough; the act must be strongly corroborative of criminal purpose and bring the defendant dangerously close to completion. Examiners love facts that sit right on this line — and the answer turns on whether the conduct unequivocally manifests intent.
Is there a memory aid for inchoate crimes questions?
SCAM the inchoates: Solicitation = ask; Conspiracy = Agree (+ overt Act); Attempt = substantial Move; Merger applies to solicitation and attempt but NEVER conspiracy. For conspiracy elements: "AGREE-INTEND-ACT."
What's a common trap on inchoate crimes questions?
Conflating solicitation, conspiracy, and attempt when facts touch multiple inchoate stages
What's a common trap on inchoate crimes questions?
Forgetting conspiracy doesn't merge while solicitation and attempt do
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