Criminal Law.  A defendant can generally be convicted of both a substantive crime and conspiring to commit that crime.  “Wharton’s Rule” is an exception to that rule, and provides that: “An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.” Iannelli v. United States, 420 U.S. 770, 773-74 n. 5 (1975).

Wharton’s Rule prevents a conspiracy conviction when an underlying substantive offense requires more than one actor, such as adultery or dueling, and in which the immediate consequences of the crime rest on the parties themselves rather than on society.

Wharton’s Rule owes its name to Francis Wharton, whose treatise on criminal law contains the classic statement of the rule and its rationale:

When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained. * * * In other words, when the law says, “a combination between two persons to effect a particular end shall be called, if the end be effected, by a certain name,” it is not lawful for the prosecution to call it by some other name; and when the law says, such an offense–e.g., adultery–shall have a certain punishment, it is not lawful for the prosecution to evade this limitation by indicting the offense as conspiracy.

Reference Desk

People v. Johnson, 57 Cal. 4th 250 (2013): 

Defendants argue the so-called Wharton’s Rule should preclude recognition of conspiracy to commit gang participation. The rule “owes its name to Francis Wharton, whose treatise on criminal law identified the doctrine and its fundamental rationale….” (Iannelli, supra, 420 U.S. at p. 773.) The rule states, “Where the cooperation of two or more persons is necessary to the commission of the substantive crime, and there is no ingredient of an alleged conspiracy that is not present in the substantive crime, then the persons necessarily involved cannot be charged with conspiracy to commit the substantive offense and also with the substantive crime itself.” (People v. Mayers (1980) 110 Cal.App.3d 809, 815 [168 Cal.Rptr. 252]; see People v. Lee (2006) 136 Cal.App.4th 522, 530 [38 Cal.Rptr.3d 927].) Classically, Wharton’s Rule applies to crimes that an individual could not commit acting alone. Wharton’s Rule “has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary.” (Iannelli, supra, 420 U.S. at p. 782.) “[T]he Rule is essentially an aid to the determination of legislative intent [and] must defer to a discernible legislative judgment.” (Id. at p. 786.)

The presumption of Wharton’s Rule has no application here. “The classic Wharton’s Rule offenses — adultery, incest, bigamy, duelling — are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than on society at large. [Citation.] Finally, the agreement that attends the substantive offense does not appear likely to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert. It cannot, for example, readily be assumed that an agreement to commit an offense of this nature will produce agreements to engage in a more general pattern of criminal conduct.” (Iannelli, supra, 420 U.S. at pp. 782-784, fns. omitted.) Iannelli concluded Wharton’s Rule had no application to the federal gambling statute at issue there: “The conduct proscribed by [18 United States Code section 1955] is significantly different from the offenses to which the Rule traditionally has been applied. Unlike the consequences of the classic Wharton’s Rule offenses, the harm attendant upon the commission of the substantive offense is not restricted to the parties to the agreement. Large-scale gambling activities seek to elicit the participation of additional persons — the bettors — who are parties neither to the conspiracy nor to the substantive offense that results from it. Moreover, the parties prosecuted for the conspiracy need not be the same persons who are prosecuted for commission of the substantive offense. An endeavor as complex as a large-scale gambling enterprise might involve persons who have played appreciably different roles, and whose level of culpability varies significantly…. Nor can it fairly be maintained that agreements to enter into large-scale gambling activities are not likely to generate additional agreements to engage in other criminal endeavors.” (Iannelli, supra, 420 U.S. at p. 784.)

Similar reasoning applies here. The immediate harm flowing from the gang participation offense is not limited to its participants. Indeed, an integral component of a criminal street gang is to commit felonies against others. (See § 186.22, subd. (f).) Like the large-scale gambling operation at issue in Iannelli, a criminal street gang also involves a network of participants with different roles and varying kinds of involvement. The gang at issue here had over 200 members who performed diverse functions. Further, it cannot be said that active gang participation is not likely to generate additional criminal agreements. To the contrary, the gang structure makes such agreements much easier and more likely. These circumstances provide no justification for applying the presumption of Wharton’s Rule. (See U.S. v. Nascimento (1st Cir. 2007) 491 F.3d 25, 48-49 [rejecting application of Wharton’s Rule to a RICO conspiracy]; U.S. v. Marino (1st Cir.2002) 277 F.3d 11, 39 [same]; see also U.S. v. McNair (11th Cir.2010) 605 F.3d 1152, 1215-1216 [rejecting application of Wharton’s Rule to a conspiracy to violate the federal bribery statute]; U.S. v. Ruhbayan (4th Cir.2005) 406 F.3d 292, 300-301[rejecting application of Wharton’s Rule to a conspiracy to commit witness tampering and suborning perjury].)

People v. Walsmith, 2005 WL 1526306 (Cal. App. 2005):

“Wharton’s Rule owes its name to Francis Wharton, whose treatise on criminal law identified the doctrine and its fundamental rationale….” (Iannelli v. United States (1975) 420 U.S. 770, 773.) It is a “doctrine that where ‘the cooperation of two or more persons is necessary to the commission of the substantive crime, and there is no ingredient of an alleged conspiracy that is not present in the substantive crime, then the persons necessarily involved cannot be charged with conspiracy to commit the substantive offense and also with the substantive crime itself. [Citations.] … The rule is considered in modern legal thinking as an aid in construction of statutes, a presumption that the Legislature intended the general conspiracy section be merged with the more specific substantive offense. [Citation.] Thus Wharton’s Rule further substantiates our earlier conclusion that the specific conduct prohibited, made a misdemeanor by a special statute, cannot be prosecuted under a general statute punishing the identical conduct as a felony. [Citation.]’ [Citation.]” (People v. Tatman (1993) 20 Cal.App.4th 1, 9.)

“The Rule traces its origin to the decision of the Pennsylvania Supreme Court in Shannon v. Commonwealth, 14 Pa. 226 (1850), a case in which the court ordered dismissal of an indictment alleging conspiracy to commit adultery that was brought after the State had failed to obtain conviction for the substantive offense. Prominent among the concerns voiced in the Shannon opinion is the possibility that the State could force the defendant to undergo subsequent prosecution for a lesser offense after failing to prove the greater.” The Shannon court’s holding reflects a concern based on principles of double jeopardy. (Iannelli v. United States, supra, 420 U.S. at pp. 779-780.)

The Rule emerged at a time when the law of conspiracy was in the process of formulation. “The general question whether the conspiracy merged into the completed felony offense remained for some time a matter of uncertain resolution.” (Iannelli v. United States, supra, 420 U.S. at p. 781, fn. omitted.) The Rule was an exception to the general principle that Congress intended that offenses be treated as distinct crimes. (Id. at p. 789.) As time went by, the Rule no longer rested on principles of double jeopardy. “Instead, it has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary.” (Id. at p. 782.)

In People v. Mayers (1980) 110 Cal.App.3d 809, the defendant was convicted of both operating a three-card monte game, a misdemeanor, and conspiracy to defraud another. An expert witness testified a three-card monte game could not be perpetrated without the collaboration of both a card dealer and a shill. Relying on principles that specific conduct prohibited by a special statute cannot be prosecuted under a general statute, the court reversed and ordered the conspiracy charge dismissed. The court explained that “Wharton’s Rule further substantiates our earlier conclusion that the specific conduct prohibited, made a misdemeanor by a special statute, cannot be prosecuted under a general statute punishing the identical conduct as a felony. [Citation.]” (Id. at p. 815.)

In Tatman, defendant and one other person illegally harvested abalone, a misdemeanor in violation of several Fish and Game Code sections. That court found the Mayers rationale inapplicable and declined to apply the Wharton’s Rule doctrine. (People v. Tatman, supra,20 Cal.4th at p. 9.) The court noted that, while two persons could act in concert to poach large quantities of abalone, so could one person acting alone. (Ibid.) The court reasoned the theory behind these principles of conspiracy is that “collaborative criminal activities pose a greater potential threat to the public than individual acts.” (Id. at p. 8.)

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