Mexican Mafia Conspiracy vs. Solicitation

Jay Leiderman
By: Jay Leiderman
November 06 2016


Penal Code § 653f(d) states, in relevant part:

  • Every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 11352, 11379, 11379.5, 11379.6, or 11391 of the Health and Safety Code shall be punished by imprisonment in a county jail not exceeding six months. Every person, who, having been convicted of soliciting another to commit an offense specified in this subdivision, is subsequently convicted of the proscribed solicitation, shall be punished by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170.
  • This subdivision does not apply where the term of imprisonment imposed under other provisions of law would result in a longer term of imprisonment.

The evidence supporting Count 3, an alleged conspiracy to transport, sell, or distribute a controlled substance, supports probable cause for a solicitation under § 653f, not a conspiracy under § 182.  It is “firmly established” that a defendant cannot be prosecuted under a general statue—such as the conspiracy statute—where the conduct alleged is prohibited by a special, more specific statute.[1] (People v. Mayers (1980) 110 Cal.App.3d 809, 813.)  This rule, sometimes called the Swann-Gilbert rule or the “special over the general” rule is “necessary to prevent a general statute from swallowing up the exceptions contained in specific enactments.”  (Id. at p. 814; People v. Gilbert (1969) 1 Cal.3d 475; People v. Swann (1963) 213 Cal.App.2d 447.)

The companion cases of People v. York (1998) 60 Cal.App.4th 1499, and People v. Sanchez (1998) 60 Cal.App.4th 1490, illustrate application of the Swann-Gilbert rule.  Both York and Sanchez arose out of “reverse sting” operations in which police officers posed as street-level cocaine dealers in areas known for drug activity.  (York, supra, 60 Cal.App.4th at p. 1502; Sanchez, supra, 60 Cal.App.4th at p. 1492.)  Both defendants approached officers participating in the sting and said “rock,” which the officers interpreted as requests to purchase rock cocaine.  (York, supra, 60 Cal.App.4th at p. 1502; Sanchez, supra, 60 Cal.App.4th at p. 1493.)  In York, the defendant also said, “30,” indicating a quantity; the officer told him to wait, and the defendant was subsequently arrested.  (York, supra, 60 Cal.App.4th at p. 1502.)  In Sanchez, the defendant actively bartered with the officer, offering to trade a car stereo and a vest for $30 worth of cocaine.  (Sanchez, supra, 60 Cal.App.4th at p. 1493.)  Both defendants were charged with attempted possession of cocaine in violation of Penal Code § 664 and Health & Safety Code § 11350, and in both cases, the trial court dismissed the charges, reasoning that under the Swann-Gilbert rule, a more specific solicitation statute, § 653f(d), preempted prosecution of the alleged conduct as an attempted drug possession.  (York, supra, 60 Cal.App.4th at pp. 1501-1502; Sanchez, supra, 60 Cal.App.4th at p. 1492.)


The Mexican Mafia Conspiracy to commit assault, drug trafficking, robbery and extortion was the largest ever prosecution in the history of Ventura County, California


The Court of Appeals for the Fourth District upheld dismissal of York’s charges.  It reasoned that the crime of attempt requires the alleged acts “go further than mere preparation; they must be such as would ordinarily result in the crime except for the interruption.”  (York, supra, 60 Cal.App.4th at pp. 1505-1506 [internal quotation marks omitted; emphasis in original].)  “Merely soliciting another is not the ‘act or acts’ as would ordinarily result in the crime . . . .”  (Id. at p. 1506.)  For conduct to go beyond solicitation, the prospective narcotics buyer must “at least” display or proffer money.  (Ibid. [emphasis in original].)  The defendant did nothing more than ask for the drugs; he committed the “exact conduct” prohibited by Penal Code § 653f.  (Id. at p. 1503.)  As such, the Swann-Gilbert rule barred prosecution under the more general attempt statute.  (See id. at p. 1504.)

The same court, however, reversed the dismissal of Sanchez’s charges.  It distinguished York on the facts, reasoning that the Sanchez defendant, unlike the York defendant, committed “all the acts which a buyer can do short of actually taking possession of the drugs . . . .”  (Sanchez, supra, 60 Cal.App.4th at p. 1497.)   By negotiating a deal and actually tendering the stereo and vest, the defendant went beyond the specific conduct prohibited by the solicitation statute.  (Ibid.)  His conduct could be punished as an attempted possession under the general attempt statute, § 664.  (Ibid.)

In this case, York controls.  A conspiracy, like an attempt, requires proof of an act in furtherance.  Conduct does not go beyond solicitation—either as an attempt or as a conspiracy—without more than mere preparation or agreement.  And with respect to Count 3 here, the evidence shows nothing more.  Just like the York defendant, Defendant requested a quantity of drugs; just like the undercover officer in York, Arreola agreed.  And unlike in Sanchez, there is no evidence Defendant negotiated a deal or tendered anything in exchange.  In short, like in York, Count 3 alleges the “exact conduct” prohibited by Penal Code § 653f; therefore, the Swann-Gilbert rule bars prosecution as a conspiracy.  Count 3 must be dismissed on that basis.

However, even if that argument fails in light of the newer amendments, there is still the lack of proof inherent in the conspiracy count, as discussed supra.  Indeed, Overt acts #1 through #4 detail a conversation wherein Defendant asks for “3.”  There is no indication that either ever secured “3” nor did they meet or tender anything in exhcange, per the evidence adduced.  The Deputy testified that “3” was code for an amount of drugs, but had no other specifics he could offer.

[1] This is true notwithstanding the newly-enacted subdivision (2) of 647f(d).  That provision only applies where a prosecution under some “other provision of law” would result in harsher punishment.  The thrust of Defendant’s argument here is that there is no “other provision of law” under which he may be punished.  There simply does not exist a conspiracy on these facts.


“A creative and multi-faceted vigorous defense comes from a creative, multifaceted guy.” – Jay Leiderman. Here’s Jay’s recent career as told through pictures.


60 thoughts on “Mexican Mafia Conspiracy vs. Solicitation

  1. 10 Oct 2013: update.

    I’m seeing a lot of people coming here to read this. For some reason that I can’t determine, this article has become more popular.

    If you want to learn more about Sue Basko, “Lawyer for Music and Film”, you can do so from these websites:
    Sue Basko claims that parents of Autistic kids are riding the “gravy train”. – Liz Ditz, “I Speak of Dreams” blog.
    Autism Story triggers a shitstorm – “Def Sheppard” blog
    How not to make a fool of yourself on the Internet – “Harpocrates Speaks” blog
    Update – “Def Sheppard” blog
    And just in case you ARE Sue Basko, I have a couple of websites you should also be concerned about.
    How a famous singer and movie star removed unwanted information from the Internet.
    How a CEO got customers to remove unwanted comments from the Internet.
    What bloggers are NOT ALLOWED to say about you.

  2. Sue Basko was really the lawyer for Adam Lanza support group but got angry when it went public!!!!

    Remove ‘Adam Lanza is a Hero’ Page
    December 20, 2012 ·
    57 minutes ago
    Sue Basko
    WOULD YOU BE SO KIND AS TO POST ON YOUR PAGE that I am NOT the lawyer for the Adam Lanza Hero pages. Also there is a woman, Tamara Watts, who posted that I was the lawyer and also posted a link to one of my blogs – will you please remove this?
    I posted so many times saying I was NOT the lawyer that now I am banned by FB from posting ANY comments! on any pages! for a few days, I guess.
    YOU CAN POST THIS: I am a victim of the person who made the page. He posted my photo and name to harass and defame me. He has also seriously threatened to kill me. I am not sure exactly who he is, but I do have info from which his identity should be ascertainable. The FBI in New Haven CT and also in Chicago IL are working on it. PHone or emails calls to the FBI in either location WILL help get them on the ball. The person who posted the pages is, in my opinion, probably already a killer and is VERY dangerous. My life has been credibly and graphically threatened. Everyone should be very CAREFUL because I think we are dealing with an actual killer. Thank you — Sue

  3. Susan Marie Basko✡ (also known as Batshit Baskocase Sue, Solange Soleil and Suehappy Basketcase for short) is a known belligerent attorney at lol who has been involved in and lost over 9,000 cases in Internet Court. She is also an IRL lawyer with a license to practice law in California and Illinois (note: NOT in New York). She claims to be Catholic but her actions are closer aligned with Scientology than Catholicism. Sue Basko is roughly equivalent (but superior to) what might happen if Mike Sandy and Daniel Brandt mated.
    Whether you’re a potential target of swatting and need to be reminded to never allow the police inside, need someone to harass the family members of those internet terrorists known as the Rustle League, or are just being bullied by The Man, Sue Basko is the only Internet Lawyer you will ever want to call.

    Well, Basko was this completely spaztic fucktard who we were all lol’oing at when this aaronsocio scrub got arrested. I came up with the idea to email her saying that we are aaronsocio’s lawyer and that her services are no longer needed. She flipped out and eventualy ginger brooks told her that it was us so she made like 50 blog posts about us one in particular saying that a transgendering man was trying to steal her jewgold which spiraled into epic fucking lulz. After that she came after f0rsaken got got her dawks dropped including ssn and continued to make blogposts as we harassed her and I made sock accounts to trick her and get into her timeline by making her believe that I was someone working against the Rustle League. As of now, she just subtweets us saying how antisemitic we are and how we are going to hell for masturbating and being criminals online
    Yeah, and now she’s going on about some shit about making a video with this fucking autist who sounds like the guy who sucks dicks for cheeseburgers in cartoons.„

    —Shm00p’s take on the Rustle League/Basko saga.

    Basko invokes Godwin’s Law, because making fun of Sue Basko is totally the equivalent of killing 6 million Jews.

    During the Occupy Wall Street protest, our favorite undisputed queen of the legal realm spent a lot of time weeding out FBI plants among the people who were actually there to protest, even though, according to her, her own brother Gabriel is an FBI agent. It’s really too intricate to lay out in this article without making the more ADHD-addled readers get bored and search for the Offended page, so all of Sue’s deathless prose concerning her anti-COINTELPRO work.

    IRL Harrassment Service

    For those with especially persistent cyberbully problems, Sue will go the extra mile and turn to extrajudicial means, as any good lawyer would. However, what separates Sue from the rest of the pack, is that in addition to e-mailing the cyberbully’s parents, she has been known to sub-contract out to IRL witches and have hexes placed on specific targets. In the cases that have gone public, the hexes have been performed by no less a figure than The Second Coming of Jennifer Emick herself, Kamonra. To provide an analogy that veteran EDiots may understand, Sue plays Daniel Brandt to Kamonra’s Amorrow in this dynamic duo of Internet justice.

    Work with convicted felons

    Another of Basko’s henchmen is a relative nobody and convicted felon named Joseph A Camp. In 2009, Joseph and a classmate decided to RAT boxes on their University of Central Missouri’s network so that they could add funds to their college accounts, change grades, and steal/sell databases. Naturally, since they were skiddie fucktards who had only been on HackForums for 3 weeks, and thus didn’t know the first thing about hiding behind 7 proxies, they were immediately fucked in the ass in the back of the partyvan, then shipped off to prison for more nonconsensual buttsex.

    Occupy Peace

    Bright side of life
    Occupy Peace is a crappy blog where Sue Basko offers advice on how to organize a peaceful protest or occupation in the United States. She frequently derails her own blog with unfunny off-topic posts because she lacks self-control and doesn’t respect her readers who don’t care about personal drama. She desperately hints to journalists that she wants media coverage, not so she can help others exercise their freedom of speech, but instead to cry about people saying mean things to her.

    “If any journalists wish to cover this story, I have vast amounts of evidence of all I am writing about, including thousands of screen shots, pictures, recordings, videos, and more. I can also provide the names and other info on many of the perpetrators.„

    —Sue Basko, a desperate plea for attention.

    Sue Basko has issues with self-confidence and writes delightful walls of text detailing what a wonderful “bright side of life” type of person she is, making it clear that violence and pornography are immoral. The amount of effort she puts into making herself look good only proves that she is extremely self-centered and very insecure about her image. Susan should seek the assistance of a trained professional and become a survivor of her shortcomings.

    Professional victim
    After Sue Basko manages to talk about something other than herself, she begins communicating with her claws and fangs, revealing a deep hatred for Encyclopedia Dramatica, Rustle League and Doxbin. At this point her writings read like a liberal’s wet dream of white middle-class Americans. That’s correct, those who contribute to Encyclopedia Dramatica don’t understand satire and are definitely racist.
    Susan insists that she’s been attacked over the last couple years despite no prior dealings with these sites or trolls. What she will never acknowledge is that she goes out of her way to draw attention to herself by writing off-topic rants on her blog and tweeting like a crybaby on a daily basis. The only way Sue Basko maintains what little sanity she has left is to convince herself that she is a victim, because without that crutch, she would be admitted to the nearest psychiatric ward.

    “They hold a type of malicious racism and antisemitism that I thought had long ago disappeared from society. I am continually shocked to see their displays of the most vicious, repugnant forms of racial hate, of the sort I associate with the KKK or with the days of Nazi Germany.„

    —Sue Basko, oh that’s original.

    Expert advice
    Susan worries that nobody takes her seriously and to compensate for that she repeatedly mentions that in two states she is a licensed attorney. After doing extensive research, our e-lawyer has reached the conclusion that subjects of articles on Encyclopedia Dramatica tend of the “smart, nice, good people.” Susan also warns that contributing to Encyclopedia Dramatica or linking to an article is a crime.
    Being a computer expert, Sue Basko has determined that people who visit Encyclopedia Dramatica will immediately have malware installed onto their computer. She goes on to speculate that said malware may be used to take control of webcams, log key presses or install a botnet.
    Enemies of the Lulz can finally rejoice, Sue Basko discovered Encyclopedia Dramatica’s offended page and offers EDiots some free legal advice. The images there are not only shocking and horrific, but also illegal! She is probably referring to the picture of Limecat.
    The purpose of Encyclopedia Dramatica isn’t to document internet drama, but to harass, coerce and extort its victims. According to Sue Basko anyways, and she isn’t going to stand by and watch as people’s lives, especially hers, are destroyed by the hate wiki. She’s made it clear she knows the identities of various contributors, but is withholding this information pending a DOJ and FBI investigation. Hopefully justice will indeed be served, because Susan has informed us that the harm done to her by Encyclopedia Dramatica can never be undone. Sue Basko is also a medical expert and has determined her health has also been damaged beyond repair, all because some jackass on the internet said something mean about her.

    Sue Basko paints a very polarizing picture of herself as a humanitarian. While she crafts the image of herself as a hero for anyone who feels they’re a victim of stalking, copyright violation, or harassment, she takes a very questionable stance toward supportive parents of children with serious mental diseases.

    Many parents today want a diagnosis of autism spectrum for their child, not only because there is a great deal of funding allocated for services for those children, as the news article explains, but also because this qualifies the child or family to collect a good SSI payment each month.

    Basically, Sue believes that parents are actually going out to get autism diagnosis for their kids just so they can reap the government SSI benefits that are paid to these mentally disabled children. Are all these kids pretending to be aspies just so their parents can make an easy living, Sue?
    Once she was called out for her atrocious insensitivity and hypocrisy, she proceeded to delete her comment, use her personal Twitter account to defame the woman who called her out on the comment, and insist that the entire thing was made up. Unfortunately for Sue, the woman had taken a screenshot of the disgusting comment before she could remove it.

    Sue was also called out for this by another person on her Facebook page, and she decided she would attempt to defame the person (who was legitimate and had a genuine concern) by calling them a bully with a fake name attempting to troll her. Sue ended up deleting this comment as well, but not before it was also saved in a screenshot.

    So aside from losing her image as a good person with compassion for fellow humans, she is now exposing herself as a paranoid drama queen who thinks anyone who opposes her diluted views on life are bullies, fakes, or trolls, and need to be promptly reported to the FBI.

    Copyright thief

    Sue specializes in copyright claims, and has extensive first hand experience in stealing the intellectual property of others. Basko Law™ will work hard to prevent others from stealing your hard work, utilizing the knowledge she has gained from countless years of making minor edits to other people’s work and claiming it as her own. The cover photo of her former Twitter account is a perfect example of her work in action.

    Sue Basko: Tree Whisperer

    Did you know that Sue is an accomplished artist herself? She’s the mastermind behind the chart-topping smash hit “You Know The Trees.” The song is an epic tale of meeting a well-traveled man who talks to trees and shares their glorious insight with the listener. It would be a shame if we spoiled this masterpiece for you any further, so prepare yourself to experience the greatest song ever made, sang by Basko herself.

    If you’re like most people and can’t understand what the hell Sue is saying in this psychedelic drug-inspired song, FEAR NOT. The lyrics have been transcribed so you too can swallow a bag of magic mushrooms and sing along. Don’t forget to have a chat with some trees afterward!
    Sex Life

    It has also long been suspected that Sue is a serial masochist and only acts out online in an attempt to gain sexual gratification from being demeaned by thousands of random, anonymous strangers. As a result, experts theorize that Sue has developed a myriad of sexual fetishes and fantasies that would gain her immediate social ostracization if she were to ever allow these to be made known to the general public. Some of these theories include:
    Since the estimated age of 14, Sue has had continuous fantasies of being sexually assaulted. This is most likely a result of Sue’s need to develop an interest in human sexual relations while at the same time coping with the crippling depression associated with her low self-esteem.
    Sue Basko often does a poor job of cleaning her anus after defecation as the constant potential of being anally raped encourages her to maintain a dirty anal cavity with the intent of giving “shitdick” to whomever may find themselves inside of her.
    Sue has been known to hang around various “glory holes” located in the Chicago area.
    Sue has lost countless marbles, wooden pencil erasers, and other such objects in her body during masturbation.
    Sue Basko often sneaks into public men’s rooms so that she may rub her body against the unwashed toilet seats to gain sexual gratification.
    Sue has created and distributed several recordings of her engaging in bestiality. These revolving films are too immoral to be linked here, but know that they have been forwarded to American authorities.
    Sue Basko has volunteered at homeless shelters where she mixed her own pubic hair into the meals served to unknowing homeless men.
    Sue Basko has been known to use “bath salts” as an aphrodisiac.
    Unfortunately for Sue, even the most vile of perverts find her too repugnant to even consider fornicating with.

    What the fuck did you just fucking say about me, you little bitch? I’ll have you know I graduated Magna cum Laude and earned my Juris Doctor at Southern Illinois University School of Law, and I’ve been involved in numerous COINTELPRO operations on Occupy and Anonymous, and I have written over 300 cease and desist letters. I am trained in internet lawfare and I’m the top lawyer of the entire Internet. You are nothing to me but just another FBI informant. I will sue your balls to the wall with fabricated evidence the likes of which has never been seen before on Twitter, mark my fucking words. You think you can get away with saying my name over the Internet? Think again, fucker. As we speak I am contacting my secret network of autistic script kiddies across the USA and your chat logs are being reported to the FBI right now so you better prepare for the defamation lawsuit, troll. The defamation lawsuit that wipes out the pathetic little website you call Encyclopedia Dramatica. You’re fucking sued, kid. I can be anywhere, anytime, and I can sue you in over seven hundred ways, and that’s just with this Twitter handle. Not only am I extensively trained in media law, but I have access to the entire archive of Twitter and I will use it to its full extent to wipe your miserable ass off the face of the Internet, you little shit. If only you could have known what unholy retribution your little “clever” comment was about to bring down upon you, maybe you would have locked your Twitter account. But you couldn’t, you didn’t, and now you’re paying the price, you goddamn idiot. I will shit fury all over you and you will drown in it. You’re fucking Basko’d, kiddo.

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    USDOJ: FBCI: Prisoners and Prisoner Re-Entry

  24. “A Week in a County Jail,” Tom T. Hall (1969)
    Picked up for speeding, the culprit here is confined to jail until a judge comes around. In the meantime, he has to adjust his tastes to make “hot bologna, eggs and gravy” palatable and the jailer’s homely wife desirable, both of which he does before going jauntily on his way. This was Hall’s first No. 1.
    Resources | Prison Activist Resource Center

  25. “Sing Me Back Home,” Merle Haggard (1967)
    Only a rabid death penalty advocate can listen to these lyrics without shedding a tear. As the condemned man is walked toward the execution chamber, he asks that his “guitar playing friend” be allowed to “sing me back home with a song I used to hear/Make my old memories come alive/Take me away and turn back the years/sing me back home before I die.” There are no references to the man’s crime — just this eloquent nod to the power of music.
    Prison Labor Equal Rights Wages Incarcerated Help Economy | New ……/prison-labor-equal-rights-wages-incarcerated-help-economy

  26. “Stone Walls and Steel Bars,” the Stanley Brothers (1963)
    This convict summarizes his crime succinctly: “Jealousy has took my young life/All for the love of another man’s wife.” So here he is in Alcatraz, about to take his last walk, after which, he says, there’ll be “no more stone walls and steel bars and you on my mind.” His sense of relief is palpable.
    Helping Ex-Prisoners Find Jobs – Prison Fellowship…/on…/helping-ex-prisoners-find-jobs/

  27. National Association of Criminal Defense Lawyers
    The National Association of Criminal Defense Lawyers serves as a public forum on criminal justice matters and as a private online service for NACDL members. Includes news releases, legislative alerts and selected full text articles from current and past issues of NACDL magazine. Features a members only section of criminal law links.

  28. “Some Old Day,” Flatt & Scruggs (1957)
    “I’ve been workin’ out in the rain/Tied to the dirty old ball and chain.” So begins this story in which a convict apologizes to his mother for his cruelties and transgressions and promises her that “some old day” he’ll be free of “this dirty old calaboose.” Somehow, we’re not convinced.
    4 Elements of Successful Reentry Programs for Inmates

  29. Do you mind if I quote a couple of your articles as long as I provide credit and
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    National Archive of Criminal Justice Data
    The National Archive of Criminal Justice Data houses more than 550 data collections relating to criminal justice. Search by keyword, subject or title. An abundance of useful reports and studies relating to sentencing, probation, jury selection and more.

  30. “Folsom Prison Blues,” Johnny Cash (1955)
    Since this song is more popular than “Happy Birthday,” it needs neither introduction nor explanation. Still, it’s worth remembering that the prisoner in question “shot a man in Reno just to watch him die” and is now paying big time for this grotesque form of amusement. “When I hear that whistle blowin’,” he moans, “I hang my head and cry.”
    Prison Pen Pals at Write A Prisoner!

  31. This is a topic that’s close to my heart…

    Many thanks!

    MIPT Terrorism Knowledge Base (TKB)
    As of this writing (February 2010) this site is no longer online. Who’s protecting us and providing information on terrorism, Homeland Security?
    The MIPT Terrorism Knowledge Base is sponsored by the Department of Homeland Security and the National Memorial Institute for the Prevention of Terrorism (MIPT). The TKB is a one-stop resource for comprehensive research on domestic and international terrorism, with information on terrorist incidents, terrorism-related court cases, and terrorist groups and leaders. The TKB features a suite of sophisticated analytical tools, available free of charge to researchers, policymakers, journalists, emergency response personnel, and the general public.

  32. Words I don’t have nothing really to post right now However, I will read your poems first, In hopes inspiration follows and falls into place Please do not think I’m here to drop a bomb It’s just a fair warning on how, I’m here “To Rock Your World” Allow me kindly to introduce myself, I’m as Sweet as they come I’m not the enemy, but a poet friend In time you will see, and hunger my name I’m not new to any poetry world In time you will notice I am not your average girl I will play fair, If you do I’ll be true to you, if you are true I’m not here to judge what I can’t see However, I will reply and enjoy the imagery This Destroyer is not like a lawyer However, mess with me or my sis I’ll chew you out like the D.E.A. I’ll mess with your mind A brain storm cleaning you from bottom to top I am the POET DESTROYER Admiring those who love the world of wordplay Today, I will end my WORDS With the quote I’ve always wanted to say “I am no poet!”

    Law Poetry | There’s poetry in the law. Kind of.

    Multidisciplinary Association for Psychedelic Studies: MAPS

  33. Alibi Witness

    A witness who testifies in support of a defendant’s allegation that he or she was somewhere other than at the scene of the crime at the time it occurred.

    Illustrative caselaw

    See, e.g. Lee v. Kemna, 534 U.S. 362 (2002).

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