## Facts

- Lou Tong Saephanh had consensual sex with Cassandra Y., who later became pregnant and told him while he was incarcerated.
- In May 1998, Saephanh wrote a letter to a friend and fellow gang member asking him and others to “take care” of Cassandra by causing a miscarriage so Saephanh would not have to pay child support.
- Prison staff routinely screened outgoing mail; a correctional officer opened and read the letter in the mailroom process, notified supervisors, and the letter was intercepted and never delivered.
- Law enforcement interviewed Saephanh; he admitted writing the letter and indicated he wanted Cassandra harmed, though he claimed he later told the intended recipient to disregard it.
- There was no evidence the addressee or any other person ever received, read, or learned of the letter before it was seized.

## Issues

1. Whether solicitation of murder under California Penal Code § 653f(b) requires proof that the solicitous communication was actually received by the person solicited.
2. Whether, if the solicitation was intercepted and never received, the defendant may nonetheless be guilty of attempted solicitation under Penal Code § 664.

## Decision

- The Court of Appeal reversed the conviction for completed solicitation of murder under Penal Code § 653f(b).
- The court held the evidence was insufficient for completed solicitation because the letter was never received by the person solicited.
- The court concluded the evidence supported attempted solicitation of murder punishable under Penal Code § 664 and remanded for further proceedings consistent with that view.

## Legal Principles

- Completed criminal solicitation under Penal Code § 653f requires that the solicitation be communicated to, and received by, the person solicited.
- Where the defendant takes direct steps to communicate a solicitation but the communication is intercepted and not received, the conduct may constitute attempted solicitation under the general attempt statute, Penal Code § 664.
- Attempt liability can apply to an inchoate offense, permitting punishment for an attempt to commit solicitation even though neither the communication nor the solicited crime occurs.

## Conclusion

Because the defendant’s solicitous letter was intercepted in the prison mail system and never reached its intended recipient, the prosecution could not prove completed solicitation of murder; the proper theory was attempted solicitation under the general attempt statute.


People v. Saephanh, 80 Cal. App. 4th 451 (Ct. App. 2000)