Bensen v. Superior Court

In Bensen v. Superior Court (1962) 57 Cal. 2d 240, an undercover investigator posing as a pregnant woman asked the defendant how she might go about putting the child up for adoption without first having to obtain her husband's consent. The defendant said he could help and ultimately asked another undercover investigator to give false testimony that would rebut the presumption that the husband was the child's father. ( Benson v. Superior Court, supra, 57 Cal. 2d at pp. 242-243.) The defendant challenged his conviction for solicitation on the ground that there was no possibility the target crime could have been committed: the investigator was not pregnant, there would have been no adoption proceeding; and therefore, the other investigator would not have presented false testimony. (Ibid.) The court rejected this claim because the statute is "designed not only to prevent solicitations from resulting in the commission of the crimes solicited, but to protect 'inhabitants of this state from being exposed to inducement to commit or join in the commission of the crimes specified. . . .' 'Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for liability. Moreover, the fortuity that the person solicited does not agree to commit the incited crime plainly should not relieve the solicitor of liability. . . . ' The act solicited must, of course, be criminal. If the solicitor believes that the act can be committed 'it is immaterial that the crime urged is not possible of fulfillment at the time when the words are spoken' or becomes impossible at a later time." ( Id. at p. 243.)