F 6.10

F 6.10 n1 Conspiracy: General Principles Regarding Proof (PC 182).

The agreement or unlawful design of conspiracy may be proved by circumstantial evidence without the necessity of showing that the conspirators met and actually agreed to commit the offense which was the object of the conspiracy. (People v. Zamora (76) 18 C3d 538, 559 [134 CR 784].) Mere association does not prove criminal conspiracy (People v. Manson (76) 61 CA3d 102, 126 [132 CR 265]), but common gang membership may be part of the circumstantial evidence supporting the inference of a conspiracy. (People v. Frausto (82) 135 CA3d 129, 140-41 [185 CR 314].) The circumstances from which a conspiratorial agreement may be inferred include, “the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties [and] the interest of the alleged conspirators ….” (People v. Remiro (79) 89 CA3d 809, 843 [153 CR 89].)

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n2 Conspiracy: Whether Actual Impossibility Is A Defense (PC 182).

See Annotation, Impossibility of consummation of substantive crime as defense in criminal prosecution for conspiracy or attempt to commit crime, 37 ALR3d 375, and Later Case Service.

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n3 Conspiracy: Unanimity As To Overt Act (PC 182).

People v. Russo (2001) 25 C4th 1124 [108 CR2d 436] recognized that the overt act requirement of PC 182 is an element of the crime of conspiracy. However, the court held that the jury need not agree on a specific overt act so long as the “defendant conspired with at least one [other conspirator] and that some conspirator committed some overt act in furtherance of the conspiracy.” (Russo, 25 C4th at 1136.)

NOTES: Even if the defendant is not entitled to a unanimity instruction, a special finding requiring the jury to unanimously agree on the same overt act or acts in a conspiracy prosecution was “a proper safeguard of defendant’s right of due process….” (People v. Jackson (96) 13 C4th 1164, 1227 [56 CR2d 49].)

Nonetheless, there are a number of situations where unanimity may be required notwithstanding Russo:

See FORECITE F 17.01 n21 [Juror Unanimity: Overt Acts In Conspiracy Prosecution];

See FORECITE F 17.01 n30 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — Multiple Agreements];

See FORECITE F 17.01 n31 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — Statute Of Limitations];

See FORECITE F 17.01 n32 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — Withdrawal];

See FORECITE F 17.01 n33 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — When Some Overt Acts Were Committed Before Defendant Joined Conspiracy];

See FORECITE F 17.01 n34 [Conspiracy: Circumstance Where Unanimity As To Overt Acts May Be Required — When One Overt Act Was Committed After Conspiracy Terminated].

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n4 Propriety Of Multiple Convictions For Conspiracy To Commit Multiple Criminal Acts (PC 182).

There is a conflict in authority as to whether a conspiracy to commit multiple criminal acts may be the predicate for multiple convictions of conspiracy. In People v. Morocco (87) 191 CA3d 1449 [237 CR 113], the court relied upon People v. Cook (84) 151 CA3d 1142 [199 CR 269], to conclude — in the context of a solicitation charge — that the question of whether one or multiple solicitations took place is a question of fact. (Morocco at 1453.) In making this determination, the Morocco court concluded that the jury should be instructed to consider whether the multiple crimes were part of a “larger all-inclusive” plan with a single objective and/or motive. (Ibid.; see also People v. Miley (84) 158 CA3d 25, 31, fn 4 [204 CR 347].) The same division of the First District Court of Appeal which decided the Morocco case again concluded in People v. Williams (88) 201 CA3d 439, 444 [247 CR 200], that “whether one or multiple solicitations has occurred is a question of fact.” (Williams at 444.)

The same rationale and need for instruction applies to a conspiracy charge. “Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts “were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.” (Blumenthal v. U.S. (47) 332 US 539, 558 [92 LEd 154; 68 SCt 248]; see also People v. Skelton (80) 109 CA3d 691, 717-18 [167 CR 636]; U.S. v. Taren-Palma (9th Cir. 1993) 997 F2d 525, 530 [finding multiple conspiracies require some evidence of separate agreements and purposes].)

Two other decisions, however, conflict with Morocco. People v. Davis (89) 211 CA3d 317, 322-24 [259 CR 348], and People v. McLead (90) 225 CA3d 906, 919-20 [276 CR 187], disagreed with Morocco’s conclusion that the matter is a question of fact for the jury to determine under appropriate instruction, holding instead that the prosecutor has the authority to charge as many conflicting counts as are shown by the evidence.

CJ 6.25 and CJ 6.26 provide an instruction and form of verdict for use when there was a conspiracy to commit two or more felonies but only one offense of conspiracy is alleged.

Research Notes: See Annotation, Solicitation to commit crime against more than one person or property, made in single conversation as single or multiple crimes, 24 ALR4th 1324 and Later Case Service.

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n5 Conspiracy: Instruction On Degree Of Target Crime (PC 182).

Conspiracy to commit a crime which is divided into degrees (e.g., murder) requires instruction upon the degree of the target crime as well as any appropriate lesser included offenses. (People v. Horn (74) 12 C3d 290, 295 [115 CR 516]; People v. Alexander (1983) 140 CA3d 647, 666 [189 CR 906]; see also, People v. Miller (92) 6 CA4th 873, 877-79 [8 CR2d 193] [conspiracy itself has no degrees].)

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n6 Conspiracy: Requirement Of Knowledge (PC 182).

“Knowledge of the objective of a conspiracy is an essential element of a conspiracy conviction.” (U.S. v. Krasovich (9th Cir. 1987) 819 F2d 253, 255.) While CJ does instruct the jury that the conspirators must have the specific intent to commit the specified offense, it fails to expressly include the element of knowledge. “Without the knowledge, the intent cannot exist …. Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal ….” (Ingram v. U.S. (59) 360 US 672, 680 [3 LEd2d 1503] internal quotes and citations omitted.)

NOTE: Knowledge may be negated by intoxication. (See FORECITE F 4.21 n4.)

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n7 No Conspiracy With Government Agent Or Feigned Participant (PC 182).

In cases where only two persons are involved and one is a government agent or informer, the other cannot be convicted of conspiracy. This is because the crime of conspiracy requires at least two people to have the requisite criminal specific intent, and a government agent by definition cannot be a co-conspirator.

There is neither true agreement nor meeting of the minds when an individual “conspires” to violate the law with a government agent. (U.S. v. Vasquez (11th Cir. 1988) 874 F2d 1515, 1516; see also People v. Towery (85) 174 CA3d 1114, 1131 [220 CR 475].) (See also Montgomery v. U.S. (2nd Cir. 1988) 853 F2d 83, 85; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1198-1200.)

However, People v. Liu (96) 46 CA4th 1119, 1131 [54 CR2d 578] concluded that the feigned participation of a false co-conspirator or government agent in a conspiracy of more than two people does not negate criminal liability for conspiracy as long as there are at least two other conspirators who actually agree to the commission of the subject crime, specifically intend that the crime be committed, and themselves commit at least one overt act for the purpose of accomplishing the object of the conspiracy.

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n8 No Conspiracy If Co-Conspirator Is Acquitted (PC 182).

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n9 Conspiracy To Commit Murder: Jury Need Not Determine Degree (PC 182).

People v. Horn (74) 12 C3d 290, 298, fn 5 [115 CR 516] concluded that the language of PC 182 “plainly authorizes the trier of fact to return a verdict finding conspiracy to commit murder in the 2nd degree.” In People v. Swain (96) 12 C4th 593, 608-10 [49 CR2d 390], the court reiterated that “the relevant language of [PC 182], as suggested by the court in Horn … can literally be read as contemplating verdicts of ‘conspiracy to commit second degree murder’ … [One] can be found guilty of unpremeditated murder with express malice in the second degree. (See CALJIC No. 8.30.)” [Original emphasis.] (Swain, 12 C4th at 610.) However, the Swain court did not decide whether changes in the law of murder and to the definition of premeditation, which postdated Horn, compel a different result. The court left the determination of that question “for another day.” (Swain, 12 C4th at 610.)

People v. Miller (96) 46 CA4th 412 [53 CR2d 773] held that the failure to instruct on the requirement of intent to kill and premeditation/deliberation when conspiracy to commit murder is charged was reversible error. (Miller, 46 CA4th at 426 fn 6 and 427.)

People v. Cortez (98) 18 C4th 1223 [77 CR2d 733] held that conspiracy to commit murder was a unitary crime punishable in the same manner as first degree murder in every instance. Hence, the jury is not required to determine the “degree” of the target offense of murder and instructions on premeditation and deliberation need not be given. To the extent that People v. Horn (74) 12 C3d 290 [115 CR 516] and People v. Miller (96) 46 CA4th 412, 426 fn 6 [53 CR2d 773] are inconsistent with this holding, they were disapproved.

CAVEAT: The rule of Cortez applies only when the object of the conspiracy is to commit murder. If the object is to commit some other felony not included in PC 189, a “conspiracy murder” theory would be improper. (See People v. Baker DEPUBLISHED (99) 72 CA4th 531, 555-56 [85 CR2d 362], concurring opinion.) [See Opinion Bank # O-259 for a copy of the Baker opinion.]

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n10 Conspiracy: Miscellaneous Arguments Rejected (PC 182).

In People v. Garceau (93) 6 C4th 140, 188 [24 CR2d 664], the court rejected several arguments that the standard CALJIC conspiracy instructions were confusing under the circumstances of that case.

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n11 Conspiracy To Commit Murder: Intent To Kill Requirement (PC 182).

People v. Swain (96) 12 C4th 593 [49 CR2d 390] reaffirmed the requirement that conspiracy is a specific intent crime which requires both the specific intent to agree, or conspire, and the intent to commit the offense which is the object of the conspiracy. Therefore, when the conspiracy is to commit murder, there must be a specific intent to kill, which is the object of murder, and implied malice may not be included as a theory of murder under the conspiracy instructions. In Swain, the court also discussed, without deciding, whether, in light of the court’s reasoning, conspiracy to commit murder should always be punished as 1st degree murder under PC 182 and in light of the redefinition of premeditation and deliberation to exclude the requirement that the defendant maturely and meaningfully reflect upon the gravity of the act. (People v. Swain, 12 C4th at 608-610.)

(See also FORECITE F 6.10 n9.)

[Research Note: See FORECITE BIBLIO 6.10, et al.]

F 6.10 n12 Conspiracy: Retroactivity Of Sentencing Amendment During Pendency Of The Conspiracy.

Ex post facto principles are not implicated by a change in the law which occurs after the commencement of the conspiracy but before the conspiracy has been terminated or the defendant has withdrawn from the conspiracy. (People v. Toplitzky (96) 43 CA4th 491 [51 CR2d 41]; see also, People v. Packard (82) 131 CA3d 622, 627 [182 CR 576].)

F 6.10 n13 Jurisdiction Of California For In-State Conspiracy To Commit Out-Of-State Offense.

People v. Morante (99) 20 C4th 403 [84 CR2d 665] held that California courts have jurisdiction to prosecute defendants both for in-state conspiracies to commit offenses out of state, and for in-state aiding and abetting of the commission of offenses out of state.

F 6.10 n14 Conspiracy: Determination Of Whether Lesser Offense Is Within Charge Of Conspiracy.

People v. Fenenbock (96) 46 CA4th 1688, 1707-08 [54 CR2d 608] held that for purposes of determining whether an offense is included within the language of the accusatory pleading in a conspiracy charge, it is the description of the agreement within the accusatory pleading, not the description of the overt acts, which must be examined to determine whether a lesser offense was necessarily the target of the conspiracy. (But see People v. Cook (2001) 91 CA4th 910 [111 CR2d 204].)

F 6.10 n15 Conspiracy To Commit Second Degree Express Malice Murder.

(See FORECITE F 6.10 n9.)

F 6.10 n16 Commentary Criticizing The Crime Of Conspiracy.

“The criticism which commentators have voiced most often and most strongly is that there is an inherent vagueness in the crime of conspiracy….and Justice Jackson, in his oft quoted concurring opinion in Krulewitch v. United States (49) 366 US 440, 445-47 [93 LEd2d 790; 69 SCt 716] referred to conspiracy as an ‘elastic, sprawling and pervasive offense, … so vague that it almost defies definition [and also] chameleon-like [because it] takes on a special coloration from each of the many independent offenses on which it may be overlaid.'” (LaFave and Scott Substantive Criminal Law, § 6.4, p. 64, fn. omitted.) Commentators have noted “The vagueness stems from…the uncertainty over what is sufficient to constitute the agreement and what attendant mental state must be shown.” (Ibid.)

F 6.10 n17 Conspiracy: Gang Members’ General Agreement To Support Each Other In Fights Insufficient To Prove Conspiracy To Commit Assault.

In Mitchell v. Prunty (9th Cir. 1997) 107 F3d 1337, 1342 the 9th Circuit held that “[m]embership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement or instigation needed to establish aiding and abetting.” In overturning the state conviction of a gang member that rested on a theory that the defendant aided and abetted a member by “fanning the fires of gang warfare,” the Mitchell opinion expressed concern that allowing a conviction on this basis would “smack[] of guilt by association.” (Mitchell, 107 F3d at 1342.) In U.S. v. Garcia (9th Cir. 1998) 151 F3d 1243, a similar conclusion was reached with regard to the sufficiency of gang membership to support a conspiracy conviction. The court concluded that “evidence of gang membership cannot itself prove that an individual has entered a criminal agreement to attack members of rival gangs. …[A] general practice of supporting one another in fights, which is one of the ordinary characteristics of gangs, does not constitute the type of illegal objective that can form the predicate for a conspiracy charge [footnote omitted].” (Garcia, 151 F3d at 1247.)

F 6.10 n18 Conspiracy To Commit Prostitution (PC 647): Overt Act May Precede Agreement.

(See In re Cheri T. (99) 70 CA4th 1400 [83 CR2d 397] [legislative intent in providing overt act requirement in PC 647(b) permits commission of overt act before conspiratorial agreement unlike conspiracy charged under PC 182.] See FORECITE F 6.10a.)

F 6.10 n19 Conspiracy: Jurisdiction In County Where Overt Act Committed.

Malone v. Superior Court DEPUBLISHED (99) 71 CA4th 1289, 1308-10 [84 CR2d 533] held that venue lies in any county in which an overt act is committed by any of the conspirators.

F 6.10 n20 Conspiracy: Arming Enhancement (PC 12022(a)(1)) Permissible If During Course Of The Conspiracy.

People v. Miley (84) 158 CA3d 25 [204 CR 347] held that the PC 12022(a)(1) arming enhancement could not be imposed for a solicitation conviction because that offense is complete when the request is made. (Miley, at 33-34 [because the defendant did not have a weapon available at the time of the solicitation arming enhancement could not be applied].)

Reasoning that the crime of conspiracy,is fundamentally different from the crime of solicitation, in that it requires both an agreement and an overt act in furtherance of the agreement and “is the classic example of a continuing offense because by its nature it lasts until the final overt act is complete,” the court in People v. Becker (2000) 83 CA4th 294 [99 CR2d 354] held that the arming enhancement can be applied to conspiracy. “The classification of conspiracy as a continuing offense is important because, as noted, the period during which the arming enhancement may attach to such an offense is very broad: So long as the defendant has a weapon available for use at any point during the course of a continuing offense, his sentence may be enhanced for being armed.” (Becker, 99 CR2d at 357; see also People v. Bland (95) 10 C4th 991, 999 [43 CR2d 77] [arming enhancement imposed on continuing offense of drug possession even though defendant was not present when drugs and gun were seized]; but see People v. Lucas (97) 55 CA4th 721, 743 [64 CR2d 282] [use enhancement properly reduced to arming enhancement where evidence showed defendant temporarily possessed gun during conspiracy].)

F 6.10 n21 Conspiracy: Overt Act Must Be Independent Of The Agreement Itself.

To qualify as an overt act, the act must be done after the agreement, and must be independent of the acts which make up the agreement. (See People v. Cook (2001) 91 CA4th 910 [111 CR2d 204] (UNPUBLISHED portion, 2001 DAR 9033, 9051) [overt act improper because it “was part of the conspiratorial agreement itself”]; see also U.S. v. Pomranz (5th Cir. 1995) 43 F3d 156, 160; Raymark Industries, Inc. v. Stemple (D.Kan.1988) 714 FSupp 460, 477; U.S. v. Grossman (E.D.N.Y.1931) 55 F2d 408, 410; People v. Ribowsky (NY 1991) 568 NE2d 1197, 1202; People v. Bongarzone (NY 1986) 500 NYS2d 532, 536; People v. DeCabia (NY 1958) 172 NYS2d 1004, 1006.)

F 6.10 n22 Conspiracy: Desired Or Wanted Result Is Not An Overt Act.

An allegation that the conspirators wanted or desired a particular result is not itself an act and therefore cannot constitute an overt act for purposes of a conspiracy conviction. (See People v. Cook (2001) 91 CA4th 910 [111 CR2d 204].)

F 6.10 n23 Conspiracy To Commit Murder: Special Circumstances Applicable But Not The Death Penalty.

Conspiracy to commit murder is not a death-eligible crime. (See People v. Vieira (2005) 35 C4th 264, 293; see also People v. Hernandez (2003) 30 C4th 835 [under PC 182 and PC 189 through PC 190.2, punishment for conspiracy to commit murder is the punishment for first degree murder without special circumstances]; People v. Lawley (2002) 27 C4th 102, 171-72.)

F 6.10a

Conspiracy:

Timing Of Overt Act — Must Be Committed After

Agreement But Before Target Offense

(PC 182)

*Add at end of CJ 6.10 when appropriate:

To be an “overt act” the act must be committed after the agreement but before the commission of the crime of [insert appropriate crime; see CJ 6.25 if more than one crime] which the prosecution alleges to have been the object of the conspiracy.

[Given in People v. Oi Chi Wong (2001) Mendocino County # SCUK-CR-99-34511-04; see also Instruction Bank # I-869.]

Points and Authorities

A. After The Agreement

The requirement that at least one overt act be committed by a party to the agreement after the defendant entered the agreement is taken from CJ 6.10. This requirement stems from the principle that the defendant cannot be held liable for acts of the other conspirators committed before the defendant joined the conspiracy. (See People v. Van Houten (80) 113 CA3d 280, 288 [170 CR 189].) Additionally, the overt act requirement of PC 184 is intended to provide “an opportunity for the conspirators to reconsider, terminate the agreement, and thereby avoid punishment for the conspiracy. [Citation.]” (People v. Zamora (76) 18 C3d 538, 549, fn 8 [134 CR 784]; see also In re Cheri T. (99) 70 CA4th 1400 [83 CR2d 397] [distinguishing purpose of overt act requirement per PC 182 and PC 184 as opposed to overt act required for prostitution conspiracy per PC 647].) Obviously, this purpose would be frustrated if the defendant could be held liable based on an overt act committed before he or she joined the conspiracy.

The requirement that the overt act be committed before completion of the intended offense is a well-settled principle. (See Zamora, 18 C3d 560; People v. Brown (91) 226 CA3d 1361, 1369 [277 CR 309].)

[See FORECITE F 6.10f re: inadequacy of acts of concealment to constitute overt acts or to extend the life of the conspiracy.]

B. Before The Target Offense

In People v. Zamora (76) 18 C3d 538 [134 CR 784], the court held that “acts committed by conspirators subsequent to the completion of the crime which is the primary object of the conspiracy cannot be deemed to be overt acts in furtherance of that conspiracy.” (Id. at 560; see also People v. Brown (91) 226 CA3d 1361, 1367-70 [277 CR 309].)

In People v. Tatman (93) 20 CA4th 1, 11 [24 CR2d 480], the Court of Appeal held that it was proper to refuse a defendant’s requested pinpoint instruction that the overt act must precede the crime. In so doing, the court concluded that the standard conspiracy instruction sufficiently apprised the jury that the overt act must precede the completion of the crime that is the objective of the conspiracy. The court reasoned that the natural and logical understanding of the frequent use of the phrase “in furtherance,” or variations thereof, was that the overt act occur prior to the ultimate offense. (Ibid.)

However, this analysis is inconsistent with the obvious fact that an objective may be furthered by subsequent acts. For example, one who drives a getaway car furthers the commission of the crime and may be liable as an aider and abetter or accessory after the fact. Therefore, the court’s assumption that the jurors would not have concluded that subsequent acts furthered the conspiracy is unpersuasive. Moreover, the defendant’s proposed instruction was a perfectly correct, non-argumentative statement of a specific legal point not directly addressed by the general instructions. Hence, there was no valid reason to reject the instructional request. (See, e.g., People v. Carter (93) 19 CA4th 1236, 1252-53 [23 CR2d 888] discussed at FORECITE PG III(A).)

Moreover, in a case where the facts raise the issue, a trial court must give a special instruction sua sponte that a conspirator can be liable for a substantive offense committed pursuant to a conspiracy only if the offense is committed after the conspirator joins the conspiracy, as a general principle of law applied to the case. (People v. Marks (88) 45 C3d 1335, 1345 [248 CR 874].) This result is inconsistent with the Tatman holding that even without instruction, jurors would automatically assume that the standard conspiracy instruction means an overt act must precede the crime. If a juror needs an instruction that the joinder of the conspiracy must precede the offense, why doesn’t a juror equally need an instruction that the required overt act must precede the offense? Tatman‘s holding was a one-sentence ipse dixit which obviously didn’t consider the Supreme Court’s Marks opinion, and it should yield to Marks.

[Instructions modifying CJ 6.10 based on FORECITE are available; see Instruction Bank # I-869.]

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

RESEARCH NOTES: In People v. Lopez (93) 20 CA4th 897, 904 [24 CR2d 649], the Court of Appeal concluded that there is no right to juror unanimity as to the overt act (see also FORECITE F 6.10 n3) and, hence, it follows that a jury is not required to return a special verdict expressly finding the defendant committed any particular overt act. However, the overt act found by the jury must be one of those alleged in the charging document. (See CJ 6.10.)

F 6.10b

Specification Of Conspiracy’s Object

(PC 182)

*Add at end of CJ 6.10 ¶ 1:

As used in these instructions, the alleged object, objective or purpose of the charged conspiracy was the __________ [insert specific crime intended, e.g., murder of “x,” robbery of “y,” burglary of “z” building] [also insert specific crime intended in blanks in CJ 6.10 ¶1 lines 3 and 4].

[Given in People v. Oi Chi Wong (2001) Mendocino County # SCUK-CR-99-34511-04; see also Instruction Bank # I-869.]

Points and Authorities

The object of a conspiracy is the specific offense which the conspirators agreed to commit. (People v. Zamora (76) 18 C3d 538, 549-50, fn 8 [34 CR 784], see also People v. Brown (91) 226 CA3d 1361, 1367-70 [277 CR 309].) Hence, when evidence of more than one offense has been presented the jury should be instructed upon which specific offense is the object of the conspiracy. (E.g., the murder of “x”, the robbery of “y”, the burglary of building “z”, etc.)

Therefore, the specific crime intended should be inserted in the space provided in CJ 6.10 ¶ 1 lines 3 and 4. Also, the above proposed language should be added to assure that the jury understands that the object of the conspiracy, as used elsewhere in the instructions (e.g., CJ 6.10, ¶ 3, CJ 6.11, ¶ 3 and 4; CJ 6.14, CJ 6.16, CJ 6.17, CJ 6.18, CJ 6.23, CJ 6.24, ¶ 4) means the specific intended crime.

Where it is charged that the defendant conspired to commit two or more crimes see CJ 6.25 and CJ 6.26.

(See FORECITE F 6.10.5 n1.)

[Instructions modifying CJ 6.10 based on FORECITE are available; see Instruction Bank # I-869.

NOTES

People v. Liu (96) 46 CA4th 1119, 1134 [54 CR2d 578] held that it was not error to fail to specify the target of the conspiracy in a case where there was “overwhelming evidence to support the jury’s conviction of appellant for conspiring to commit [the crimes specified in the information], and not some other unnamed hypothetical ‘target’ offense.”

RESEARCH NOTES

See Annotation, Impossibility of consummation of substantive crime as defense in criminal prosecution for conspiracy or attempt to commit crime, 37 ALR3d 375 and Later Case Service.

F 6.10c

Requirement That Co-Conspirator Be Found Guilty Beyond A Reasonable Doubt

*Add to CJ 6.10:

A defendant may not be convicted of conspiracy absent proof beyond a reasonable doubt that __________ (insert alleged co-conspirator(s)) [is] [are] guilty of conspiracy. If you have a reasonable doubt as to whether _________ [is] [are] guilty of conspiracy, you must give the defendant the benefit of that doubt and find [him] [her] not guilty of conspiracy.

Points and Authorities

It is axiomatic that a conspiracy requires at least two conspirators and, therefore, a conspiracy conviction may not be predicated on the theory that the defendant conspired with a co-defendant who is not himself guilty of conspiracy. (People v. Superior Court (Jackson) (75) 44 CA3d 494, 498 [118 CR 702]; People v. James (61) 189 CA2d 14, 16 [10 CR 809]; see also People v. Austin (94) 23 CA4th 1596 [28 CR2d 885].) (See FORECITE F 4.018a.) Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).)

CAVEAT: The continued viability of this instruction should be evaluated in light of People v. Alleyne (2000) 82 CA4th 1256 [98 CR2d 737] [death of co-conspirator before overt act committed by conspirator did not bar conviction for conspiracy; see also People v. Eberhardt (85) 169 CA3d 292, 299-300 [215 CR 161] [immune co-conspirator no bar to conviction].

F 6.10d

Multiple Conspiracy: Jury Determination

*Add to CJ 6.10:

If you find the existence of a conspiracy beyond a reasonable doubt, you must determine whether a single or multiple conspiracies have been proven. If there was one overall agreement among the various parties to perform various functions to carry out the objectives of the conspiracy, then there is but a single conspiracy. If there were separate agreements each of which had its own distinct, illegal end and which were not drawn together in a single, overall, comprehensive plan, then each such agreement is a separate conspiracy.

[Each alleged conspiracy is charged in a separate count. You must decide each count separately. You must not convict the defendant on any count unless you unanimously agree that the prosecution has proven that the defendant participated in a separate conspiracy as to that count.]

[The information alleges only a single count of conspiracy. If you find the existence of multiple conspiracies, defendant may be found guilty of conspiracy if the proof shows beyond a reasonable doubt that [he] [she] participated in one or more of the conspiracies. However, to find the defendant guilty of conspiracy you must unanimously agree as to which conspiracy or conspiracies [he] [she] participated in. It is not necessary that the particular conspiracy or conspiracies agreed upon be stated in your verdict.]

Points and Authorities

When a conspiracy involves a multiplicity of objects, the jury should be required to determine whether the evidence establishes a single or multiple conspiracy. (See People v. Lopez (94) 21 CA4th 1551, 1557-58 [26 CR2d 741]; People v. Skelton (80) 109 CA3d 691, 718 [167 CR 636]; see also People v. Russo (2001) 25 C4th 1124, 1134-36 [108 CR2d 436] [unanimity is required if the evidence suggests two or more agreements and, hence, two or more “discrete conspiracies”]; see also FORECITE F 17.01 n30; but see People v. Vargas (2001) 91 CA4th 506, 554 [110 CR2d 210 [if there is only one single overall conspiracy then the jury need not be instructed to determine whether one or multiple conspiracies were proven].)

“The test is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy. If so, there is but a single conspiracy.” (Skelton 109 CA3d at 718.) On the other hand, if each separate agreement had “its own distinct illegal end” and there was “no drawing of all together in a single, over-all, comprehensive plan,” then each separate agreement is a separate conspiracy. (Skelton 109 CA3d at 717-18.)

The determination of whether there was a single conspiracy or multiple conspiracy is significant to the jury for several reasons.

First, if multiple conspiracies are charged, then the jury must consider each count separately and unanimously agree as to the existence of a separate conspiracy for that count and the defendant’s participation therein.

Second, if multiple conspiracies are not charged, then juror unanimity must be required to assure that the jury unanimously agrees that the defendant participated in at least one of the conspiracies.

Third, if the jury finds the existence of multiple conspiracies, then both the doctrines of vicarious liability (CJ 6.11) and admissibility of co-conspirators’ statements (CJ 6.24) must be limited to the applicable conspiracy. (Skelton 109 CA3d at 717.)

(See FORECITE F 6.10.5 n1.)

NOTES

Different Test For Multiple Victims. There is a conflict in the cases as to whether separate conspiracies may be founded upon violent crimes committed upon multiple victims. (See Lopez (94) 21 CA4th 1551, 1558, fn 2 [26 CR2d 741].) If such a test is utilized, then the above instruction should be modified to reflect the different test. However, the significance of the jury’s determination of whether or not separate conspiracies were proven will be the same.

PRACTICE NOTE: Specification of the conspiracy’s object by the jury may be relevant to sentencing if two conspiracies are charged based on the same course of conduct. “Whenever a conspiracy has a broader objective than just the charged crime, the sentencing court can reasonably find separate intents and objectives. [Citations] [Original emphasis].” (In re Jones (94) 26 CA4th 1759, 1766 [32 CR2d 473].) The possibility of multiple punishment may be a consideration in determining whether to instruct the jury on the object of the conspiracy and/or whether to require the jury to specifically find the objective.

[An unpublished opinion in People v. Benta UNPUBLISHED (9/12/94, C016707) and additional briefing discussing multiple conspiracies are available to FORECITE subscribers. See Brief Bank # B-675 and ask for and Opinion Bank # O-198.]

F 6.10e

Conspiracy: Specification Of Elements, Intent And Knowledge

*Modify ¶ 2 of CJ 6.10 as follows [added language is capitalized; deleted language is between <<>>]:

<<In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the overt acts alleged in the [indictment] [information].>> IN ORDER TO PROVE THE DEFENDANT GUILTY OF CONSPIRACY, EACH OF THE FOLLOWING ELEMENTS MUST BE PROVEN BEYOND A REASONABLE DOUBT.

1. THE DEFENDANT AND ONE OR MORE OTHER PERSONS ENTERED INTO AN AGREEMENT TO COMMIT THE CRIME OF __________;

2. THE DEFENDANT AND OTHER [PARTY] [PARTIES] TO THE AGREEMENT EACH HAD THE SPECIFIC INTENT TO AGREE TO COMMIT THE CRIME OF __________;

3. THE DEFENDANT AND OTHER [PARTY] [PARTIES] TO THE AGREEMENT EACH HAD THE SPECIFIC INTENT TO COMMIT THE CRIME OF __________;

4. THE DEFENDANT AND OTHER [PARTY] [PARTIES] EACH HAD ACTUAL KNOWLEDGE OF THE EXISTENCE OF THE AGREEMENT AND THE FULL SCOPE, DESIGN AND PURPOSE OF THE AGREEMENT; AND

5. AT LEAST ONE OVERT ACT WAS COMMITTED BY A PARTY TO THE AGREEMENT AFTER THE DEFENDANT ENTERED THE AGREEMENT BUT BEFORE THE OFFENSE OF __________ WAS COMPLETED. It is not necessary to the guilt of any particular defendant that defendant personally committed the overt act, if [he] [she] was one of the conspirators when such an act was committed.

[Given in People v. Oi Chi Wong (2001) Mendocino County # SCUK-CR-99-34511-04; see also Instruction Bank # I-869.]

Points and Authorities

A. Enumeration Of Elements.

Unlike most other standard CALJIC instructions which define the elements of an offense, CJ 6.10 fails to include an enumeration of the elements of the charge other than the introductory first paragraph. Therefore, to assure that the jurors are cognizant of each element, an enumeration of elements similar to that used in other CALJIC instructions should be added to CJ 6.10.

B. Specification Of The Defendant’s Intent.

CJ 6.10 does not clearly inform the jury that the charged defendant must harbor the requisite specific intent. While this requirement may be understood from CJ 6.10 in some cases, in other cases — especially where it is alleged that the defendant joined the conspiracy after its formation — it may be less clear that the charged conspirator must personally form the necessary specific intent. This is especially true in a conspiracy prosecution where “a weak case against one defendant will be strengthened by a mass of evidence relevant only to his co-defendants.” (Castro v. Superior Court (70) 9 CA3d 675, 692 [88 CR 500] see also People v. Fulton (84) 155 CA3d 91, 101 [201 CR 879] [recognizing the potential for unfairness inherent in a conspiracy charge].) CJ 6.22, which requires that the conspiracy charge must be resolved as to “each defendant,” provides some protection, but it is normally only given in multiple defendant cases. Moreover, the most appropriate place to clearly set forth the requirement that the defendant must form a specific intent is in the specification of the elements of the charge.

The failure to instruct upon the “dual intent” element of conspiracy was held to be reversible error in People v. Miller (96) 46 CA4th 412 [53 CR2d 773].

C. Knowledge Requirement.

With the exception of CJ 6.22, no CALJIC instruction makes any reference to knowledge as an element of conspiracy. While some requirement of knowledge may be implicit in the specific intent element, the state and federal constitutional rights to trial by jury and due process require that the jury be expressly instructed on all elements of the charge. (See FORECITE PG VIII(C).) Knowledge is an essential element of conspiracy because “[t]he moral quality of an intent may be determined by knowledge, or lack of knowledge, of pertinent facts.” (Perkins, Criminal Law (3d ed. 1982), Ch 6, § 5, Conspiracy, p. 697.) Hence, “one does not have the specific intent to bring about an unlawful result, and hence is not guilty of conspiracy, if he does not know or have reason to know the facts which make that result unlawful.” (Ibid.) Accordingly, the defendant must have actual knowledge of the existence of the conspiracy. (U.S. v. Falcone (40) 311 US 205, 210-11 [85 LEd 128; 61 SCt 204].) Moreover, “[k]nowledge of the objective of the conspiracy is an essential element of any conspiracy conviction.” (U.S. v. Krasovich (9th Cir. 1987) 819 F2d 253, 255; see also, De Vries v. Brumback (60) 53 C2d 643, 648 [2 CR 764] [conspiracy conviction embodies jury finding the defendant acted with “full knowledge of [the conspiracy’s] scope and design.”

D. Overt Acts.

The requirement that the overt act be committed before completion of the intended offense is a well-settled principle. (See Zamora, 18 C3d 560; People v. Brown (91) 226 CA3d 1361, 1369 [277 CR 309].)

[See FORECITE F 6.10f re: inadequacy of acts of concealment to constitute overt acts or to extend the life of the conspiracy.]

E. Timing Of Overt Act.

(See FORECITE F 6.10a.)

NOTES

[Additional briefing on the knowledge requirement for conspiracy is available to FORECITE subscribers. Ask for Brief Bank # B-648.]

[Instructions modifying CJ 6.10 based on FORECITE are available; see Instruction Bank # I-869.

Conspiracy To Commit Murder Requires Express Malice: [See FORECITE F 8.32 n11.]

F 6.10f

Conspiracy: Efforts To Conceal Do Not Extend The

Duration Of The Conspiracy And Are Not Overt Acts

*Add to CJ 6.10:

Efforts to conceal the offense after it has been committed do not extend the duration of the conspiracy. Nor are such efforts overt acts in furtherance of the conspiracy [even if they were part of the original unlawful agreement].

Points and Authorities

(People v. Zamora (76) 18 C3d 538, 556-60 [134 CR 784]; People v. Brown (91) 226 CA3d 1361, 1367-69 [277 CR 309].)

F 6.10g

Conspiracy: Approval Or Acquiescence In The

Object And Purpose Does Not Prove Membership In Conspiracy

*Add to CJ 6.10:

Mere knowledge of, approval of and/or acquiescence in the object and purpose of a conspiracy without the specific intent to join in the conspiratorial agreement and to cooperate in achieving its object or purpose, does not make one a party to a conspiracy.

[Given in People v. Oi Chi Wong (2001) Mendocino County # SCUK-CR-99-34511-04; see also Instruction Bank # I-869.]

ALTERNATIVE INSTRUCTION:

Presence of a person at the location of an alleged conspiracy’s activities, while the activities are taking place, and knowing that they are taking place, cannot support a conspiracy conviction without proof beyond a reasonable doubt that the person intentionally participated in the conspiracy. It is extremely imprudent to remain knowingly in the presence of an ongoing criminal conspiracy, but imprudence is not a crime. Sometimes youthful inexperience and lack of common sense, impecuniousness, or personal relationships may bring the innocent into continuing proximity with the guilty, but acquittal is required in the absence of evidence of intentional participation.

[Adapted from U.S. v. Herrera-Gonzalez (9th Cir. 2001) 263 F3d 1092, 1097-98.]

Points and Authorities

See People v. Horn (74) 12 C3d 290, 296 [115 CR 516] [conspiracy requires specific intent to agree or conspire]; see also U.S. v. Hopkins (10th Cir. 1984) 744 F2d 716, 718-19. [Instructions modifying CJ 6.10 based on FORECITE are available; see Instruction Bank # I-869.

F 6.10h

Conspiracy To Obstruct Justice

(PC 182(5))

*Modify CJ 6.10 as follows:

[Instead of defining specific offenses as the object of the conspiracy, the instruction should require an intent to do the acts constituting elements of an obstruction of justice as those acts are described in the charging allegations of the accusatory pleading.]

Points and Authorities

When the offense is conspiracy to obstruct justice, as described in PC 182(5) rather than a conspiracy to commit “any crime” within PC 182(1), it is unnecessary to demonstrate an intent to “obstruct justice” as such. Rather, the evidence must show an intent to do the acts constituting the elements of an obstruction of justice as they are described in the charging allegations of the accusatory pleading. (People v. Backus (79) 23 CA3d 360, 387 [152 CR 710].)

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]

F 6.10i

Conspiracy: Buyer-Seller Instruction

*Add to CJ 6.10:

The existence of a simple buyer-seller relationship between a defendant and another person, without more, is not sufficient to establish a conspiracy, even where the buyer intends to resell _____ [name of goods.] The fact that a defendant may have bought _____ [name of goods] from another person or sold _____ [name of goods] to another person is not sufficient without more to establish that the defendant was a member of the charged conspiracy.

Points and Authorities

The above instruction is taken from paragraph 1 of the Seventh Circuit Model Instructions, § 6.12. Such an instruction was given in U.S. v. Meyer (7th Cir. 1998) 157 F3d 1067. A testifying co-conspirator referred to the defendant as someone who “just bought drugs from me,” distinguishing him from his co-defendant with whom the co-conspirator discussed business decisions. The buyer-seller theory was not conveyed by the general instruction defining membership in a conspiracy. (See also Heckstall v. State (98) 707 A2d 953 [120 Md.App. 621] [evidence of single “buyer-seller” transaction in a quantity sufficient for the buyer’s personal use, without more, does not establish conspiracy to distribute].)

Use In Non-Drug Cases: The buyer-seller issue arises primarily in drug cases. However, as the examples in U.S. v. Blankenship (7th Cir. 1992) 970 F2d 283, 286, illustrate, it is not limited to drug cases and may arise in a variety of conspiracy or aiding and abetting cases.

Instruction On Factors To Consider: In considering whether a conspiracy or a simple buyer-seller relationship existed, the jury should consider all of the evidence, including the following:

(1) Whether the transaction involved large quantities of [name of goods];

(2) Whether the parties had a standardized way of doing business over time;

(3) Whether the sales were on credit or on consignment;

(4) Whether the parties had a continuing relationship;

(5) Whether the seller had a financial stake in a resale by the buyer;

(6) Whether the parties had an understanding that the [name of goods] would be resold.

In a particular case, some or even none of the factors may be relevant and the instruction should be tailored to fit the facts of the case. (See U.S. v. Blankenship, supra, 970 F2d at 286.

Applicability To Aiding And Abetting

See FORECITE F 3.00 n11.

F 6.10j

Conspiracy: Decision Must Be As To Each Defendant

*Add to CJ 6.10:

Each defendant is individually entitled to, and must receive, your determination whether [he][she] was a member of the alleged conspiracy. As to each defendant you must determine whether [he][she] was a conspirator by deciding whether [he][she] willfully, intentionally, and knowingly joined with any other or others in the alleged conspiracy.

Points and Authorities

The above instruction was cited with approval in People v. Hardy (92) 2 C4th 86, 151 [5 CR2d 796].

F 6.10k

Conspiracy To Commit A Public Welfare Offense:

Requirement Of Specific Intent To Violate The Law

*Add to CJ 6.10 definition of conspiracy when object of the conspiracy is a public welfare offense:

The defendant must have been aware that ____(specific offense) was a violation of the law and specifically intended to violate that law.

Points and Authorities

People v. Marsh (62) 58 C2d 732 [26 CR 300] held that the trial court erred in instructing the jury that conspiracy to commit a crime required only an agreement to commit the act which constituted the crime. “Even though a conspiracy has as its object the commission of an offense which can be committed without any specific intent, there is no criminal conspiracy absent a specific intent to violate the law. That is, to uphold a conviction for conspiracy to commit a ‘public welfare offense’ there must be a showing that the accused knew of the law and intended to violate it.” (Marsh, 58 C2d at 743.)

The rationale of Marsh is that the crime of conspiracy is defined in terms of an “‘evil’ or ‘corrupt’ agreement to do an unlawful act.” (Marsh, 58 C2d at 743.) For this reason, where the target offense is a public welfare offense, i.e., one not wrongful per se, that is not shown unless there is proof the defendant knows that the target act is unlawful.

F 6.10l

Buyer-Seller Relationship: On Factors To Consider

(See FORECITE F 3.00d.)