2019 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 28 - Initiatory Crimes
Section 30-28-3 - Criminal solicitation; penalty.
A. Except as to bona fide acts of persons authorized by law to investigate and detect the commission of offenses by others, a person is guilty of criminal solicitation if, with the intent that another person engage in conduct constituting a felony, he solicits, commands, requests, induces, employs or otherwise attempts to promote or facilitate another person to engage in conduct constituting a felony within or without the state.
B. In any prosecution for criminal solicitation, it is an affirmative defense that under circumstances manifesting a voluntary and complete renunciation of criminal intent, the defendant:
(1) notified the person solicited; and
(2) gave timely and adequate warning to law enforcement authorities or otherwise made a substantial effort to prevent the criminal conduct solicited.
The burden of raising this issue is on the defendant, but does not shift the burden of proof of the state to prove all of the elements of the crime of solicitation beyond a reasonable doubt.
C. It is not a defense that the person solicited could not be guilty of the offense solicited due to insanity, minority or other lack of criminal responsibility or incapacity. It is not a defense that the person solicited is unable to commit the crime solicited because of lack of capacity, status or other characteristic needed to commit the crime solicited, so long as the person soliciting or the person solicited believes that he or they have such capacity, status or characteristics.
D. A person is not liable for criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the offense solicited. When the solicitation constitutes a felony offense other than criminal solicitation, which is related to but separate from the offense solicited, the defendant is guilty of such related felony offense and not of criminal solicitation. Provided, a defendant may be prosecuted for and convicted of both the criminal solicitation as well as any other crime or crimes committed by the defendant or his accomplices or co-conspirators [coconspirators], or the crime or crimes committed by the person solicited.
E. Any person convicted of criminal solicitation shall be punished as follows:
(1) if the highest crime solicited is a capital or first degree felony, the person soliciting such felony is guilty of a second degree felony;
(2) if the highest crime solicited is a second degree felony, the person soliciting such a felony is guilty of a third degree felony; and
(3) if the highest crime solicited is a third degree felony or a fourth degree felony, the person soliciting such felony is guilty of a fourth degree felony.
History: Laws 1979, ch. 265, § 1.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Intent. — Criminal solicitation is not committed in a vacuum; it is a specific intent crime that requires the solicitation of a substantive underlying crime. A person is guilty of criminal solicitation if, with the intent that another person engage in conduct constituting a felony, the soliciting person solicits, commands, requests, induces, employs or otherwise attempts to promote or facilitate another person to engage in conduct constituting a felony within or without the state. State v. Martinez, 2008-NMSC-060, 145 N.M. 220, 195 P.3d 1232.
Offense of solicitation requires some form of actual communication from the defendant to either an intermediary or the person intended to be solicited, indicating the subject matter of the solicitation. State v. Cotton, 1990-NMCA-025, 109 N.M. 769, 790 P.2d 1050, cert. denied, 109 N.M. 751, 790 P.2d 1032.
Under this section, proof that defendant solicited, commanded, requested, induced, or employed another to commit a felony necessarily requires evidence that the defendant, in some manner, in fact communicated the solicitation to the person or persons intended to be solicited. State v. Cotton, 1990-NMCA-025, 109 N.M. 769, 790 P.2d 1050, cert. denied, 109 N.M. 751, 790 P.2d 1032.
Offense complete when solicitation made. — The offense of solicitation is complete when the solicitation is made and it is immaterial that the object of the solicitation is never consummated, or that no overt steps are subsequently taken toward its consummation. State v. Casteneda, 1982-NMCA-046, 97 N.M. 670, 642 P.2d 1129.
Agreement not required. — The crime of solicitation does not require an agreement. There need be only unilateral acts on the part of the accused of an inducement or request for another to commit a felony. State v. Gilbert, 1982-NMCA-081, 98 N.M. 77, 644 P.2d 1066.
"Facilitate" and "promote" construed. — The terms "facilitate" and "promote" have common, well defined definitions, meaning respectively "to make easier or less difficult," and to "further, or encourage." State v. Casteneda, 1982-NMCA-046, 97 N.M. 670, 642 P.2d 1129.
Sufficient evidence of criminal solicitation to commit tampering with evidence. — Where defendant was charged with voluntary manslaughter in the stabbing death of his friend, and where the evidence established that defendant called his girlfriend from the jail knowing that the police were investigating the stabbing, and told her to take his backpack, which contained cans of Dust-Off that the victim had been sniffing or "huffing", and when defendant's girlfriend told defendant that she could not because the police were everywhere, defendant asked her to take the Dust-Off cans out of the backpack and tell the police the backpack belonged to someone else, the evidence supports findings that defendant intended his girlfriend to tamper with evidence consisting of his backpack and the Dust-Off cans inside it and that defendant requested his girlfriend to tamper with evidence by concealing it and lying about ownership of the backpack, for the purpose of preventing his prosecution or conviction for stabbing the victim. State v. Fox, 2017-NMCA-029, cert. granted.
Double jeopardy. — Even though, under Subsection D of this section, defendant could be convicted of criminal solicitation and conspiracy to commit murder, the trial court's merger of the two offenses for sentencing purposes violated his right to be protected from double jeopardy. State v. Vallejos, 2000-NMCA-075, 129 N.M. 424, 9 P.3d 668, cert. denied, 129 N.M. 385, 9 P.3d 68.
Convictions of voluntary manslaughter and aggravated burglary did not violate double jeopardy. — Where defendant shot the victim in the chest in defendant's vehicle, drove the unconscious victim in the vehicle to an isolated area, and defendant shot the victim twice in the head while the victim was still alive, defendant's convictions of voluntary manslaughter for shooting the victim in the chest and aggravated battery for shooting the victim in the head were not based on unitary conduct and did not violate defendant's right to be free from double jeopardy. State v. Urioste, 2011-NMCA-121, 267 P.3d 820, cert. granted, 2011-NMCERT-012.
Solicitation incidental to conspiracy to commit murder. — The last sentence of Subsection D means that the charges of both criminal solicitation and conspiracy to commit murder can be prosecuted and submitted to the jury which can convict defendant of both charges; however, according to the first two sentences, defendant will not be held "liable" or "guilty" of criminal solicitation upon formal adjudication or entry of judgment and sentence by the trial court. State v. Vallejos, 2000-NMCA-075, 129 N.M. 424, 9 P.3d 668, cert. denied, 129 N.M. 385, 9 P.3d 68.
Solicitation incidental to conspiracy or liability as accessory. — If the theory of guilt of the principal offense is that of accessory liability for fraud or conspiracy to commit fraud, solicitation will be necessarily incidental to it and there can be no liability for solicitation. State v. McCall, 1983-NMCA-109, 101 N.M. 616, 686 P.2d 958, rev'd on other grounds, 1984-NMSC-007, 101 N.M. 32, 677 P.2d 1068.
Separate sentences for conspiracy and solicitation, if solicitation constitutes conspiracy, impermissible. — A formal adjudication of guilt of both conspiracy to commit and solicitation of the same felony is proper; however, the imposition of a separate sentence for solicitation when (1) a defendant is convicted and sentenced for conspiracy and (2) the solicitation also constitutes the conspiracy is not permissible. State v. Shade, 1986-NMCA-072, 104 N.M. 710, 726 P.2d 864, cert. quashed, 104 N.M. 702, 726 P.2d 856, overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Conduct incidental to commission of the offense committed. — Even though the defendant's actions in negotiating for the purchase of drugs fall within the definition of criminal solicitation, his conduct was necessarily incidental to the crime of trafficking through the sale of a controlled substance and he could not be guilty of solicitation to traffic. State v. Pinson, 1995-NMCA-045, 119 N.M. 752, 895 P.2d 274.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Solicitation to commit crime against more than one person or property, made in single conversation, as single or multiple crimes, 24 A.L.R.4th 1324.
15A C.J.S. Conspiracy §§ 34 to 78.
