## Facts

- A vice officer observed Thomas Eugene Mayers and Charles Jackson running a three-card monte game on a bus.
- Three-card monte involved manipulating two cards of one color and one “odd” card, using bent cards and sleight of hand to mislead onlookers about the odd card’s location.
- The officer testified the scheme requires at least a dealer and a shill working together, plus a victim (“mark”).
- Jackson acted as the dealer; Mayers acted as the shill by encouraging participation, placing enticing bets, and distracting the crowd.
- During play, Mayers threw a black card over Jackson’s shoulder; while Jackson turned to retrieve it, Mayers bent the corner of the red card in view of onlookers to facilitate the deception.
- The pair induced a passenger to play and lose $80.
- Mayers was convicted of (1) operating/participating in three-card monte (Penal Code § 332) and (2) conspiracy to cheat and defraud in a three-card monte game (Penal Code § 182(4)).
- The trial court granted three years’ probation with conditions including 365 days in local custody, no participation in three-card monte, and submission of his home personal property to search at any time by any law enforcement officer.
- Jackson was later apprehended but not prosecuted; Mayers appealed his conviction and the probation search condition.

## Issues

1. Whether a defendant charged with a misdemeanor violation of Penal Code § 332 may also be charged and convicted of conspiracy under Penal Code § 182(4) to commit the same cheating offense.
2. Whether a conspiracy conviction is barred when the only identified coconspirator is not prosecuted or has charges dismissed.
3. Whether a probation condition authorizing warrantless searches of the probationer’s home personal property at any time by any law enforcement officer is invalid under the limits described in People v. Keller.

## Decision

- The Court of Appeal affirmed the convictions and the probation order.
- It held conspiracy under Penal Code § 182(4) is an independent offense that may be charged and proved even when the object offense under Penal Code § 332 is a misdemeanor and is also charged.
- It held the conspiracy conviction could stand despite the non-prosecution/dismissal of charges against the identified coconspirator, so long as evidence established an agreement and concerted action by at least two persons.
- It upheld the probation search condition as reasonably related to the offense and to deterring future criminal conduct, and distinguished Keller.

## Legal Principles

- Conspiracy is a distinct crime aimed at the unlawful agreement and coordinated action; it may be punished separately from the completed substantive offense.
- A conspiracy conviction does not require that all conspirators be prosecuted or convicted; procedural dismissal or non-prosecution of a coconspirator does not negate proof that a conspiracy existed.
- Probation conditions, including warrantless search conditions, are permissible when reasonably related to the offense and/or to preventing future criminality; a condition lacking such a relationship may be invalid.
- Where the offense involves portable or concealable tools or proceeds of fraud, a search condition directed at monitoring possession of such items may be reasonably related to supervision and deterrence.

## Conclusion

The court upheld Mayers’s convictions for operating a three-card monte game and conspiring to cheat and defraud, ruling that conspiracy may be charged alongside a misdemeanor cheating offense and may be sustained even if the only identified coconspirator is not prosecuted, and it further held that the broad residential personal-property search condition of probation was a valid supervisory measure reasonably related to the offense and to preventing recurrence.


People v. Mayers, 110 Cal. App. 3d 809, 168 Cal. Rptr. 252 (Ct. App. 1980)