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F 6.11 n1 Liability For Crimes Committed By Other Conspirators (PC 182).
Conspiracy liability for other crimes is permissible even if the defendant is unaware of them so long as they are a natural and probable consequence. (People v. Hardy (92) 2 C4th 86, 188-89 [5 CR2d 796].)
People v. Superior Court (Shamis) (97) 58 CA4th 833 [68 CR2d 388] held that a conspirator may be liable for murder based on the acts of the other conspirators even if the victim is one of the conspirators who was killed during the commission of the conspiracy. (See also FORECITE F 8.12a; People v. Mai (94) 22 CA4th 117 [27 CR2d 141] [other conspirators liable for coconspirator’s death by engaging in life-endangering provocative conduct that substantially contributed to the death under “provocative act” doctrine].)
F 6.11 n2 Conspiracy: Uncharged Conspiracy May Not Be Basis of A Conviction For A Charged Substantive Offense.
CJ 6.11 permits the jury to find the defendant guilty of a substantive offense based solely on his or her participation in an uncharged conspiracy. This result is impermissible because:
1. It is prohibited by California law which requires that criminal liability extend only to those who “directly commit the act constituting the offense or aid and abet in its commission ….” (PC 31);
2. It creates criminal liability for an uncharged offense, which is constitutionally impermissible; and
3. It creates a mandatory conclusive presumption that a person who engages in a conspiracy to commit the charged substantive offense is automatically guilty of that substantive offense.
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-651.]
F 6.11a
Collateral Estoppel Precludes Conviction Of Conspiracy When The Other Alleged
Conspirators Have Been Acquitted
(PC 182)
*Add to CJ 6.11:
[DELETED].
NOTE: This instruction has been deleted in light of People v. Palmer (2001) 24 C4th 856 [103 CR2d 13] [inconsistent verdicts in conspiracy case does not require reversal of co-defendant’s conspiracy conviction when substantial evidence supports verdict].
[See FORECITE F 3.02b.]
F 6.11b
Conspiracy — Joint Responsibility: Requirement
Of Proof Beyond A Reasonable Doubt
*Modify ¶ 4 of CJ 6.11 to provide as follows:
In order to find the defendant guilty of the crime[s] of __________, [as charged in Count[s] _____,] you must be satisfied beyond a reasonable doubt that: (i) the defendant is guilty as a member of a conspiracy to commit the public offense of __________, (ii) the members of the conspiracy had the specific intent to commit the offense of __________, (iii) a member of the conspiracy committed the crime of _________, and (iv) the crime of _________ was a natural and probable consequence of the commission of the crime of __________.
Points and Authorities
The 1992 revision to CJ 3.02 regarding liability for natural and probable consequences for an aider and abetter utilized a format similar to the one set forth above in which the jury was informed of the elements which must be proven beyond a reasonable doubt in order to impose liability for offenses which are the natural and probable consequences of the target offense. The current CALJIC instruction relating to the natural and probable consequences of crimes committed in furtherance of a conspiracy fails to specifically inform the jury that the requisite elements must be proven beyond a reasonable doubt as does the 1992 revision of CJ 3.02. Accordingly, CJ 6.11 should be revised as set forth above to assure that the jury applies the constitutionally mandated standard of proof beyond a reasonable doubt. (See EC 502; see also, 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].) 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.].)
NOTES
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-607.]
F 6.11c
Multiple Conspiracies: Limitation Of Joint Responsibility
*Add to CJ 6.11 when appropriate:
However, if you find the existence of multiple conspiracies under the instructions previously given, you must not consider any acts or declarations by another against the defendant unless you find, beyond a reasonable doubt, that the person doing the act or making the declaration, was a member of the same conspiracy as was the defendant.
Points and Authorities
Vicarious liability for the acts and declarations of a co-conspirator is predicated upon the defendant’s membership in the same conspiracy as the co-conspirator. In cases where the evidence provides a basis for finding multiple conspiracies (see FORECITE F 6.10d), the jury must be instructed that the defendant and co-conspirator were members of the same conspiracy. (People v. Skelton (80) 109 CA3d 691, 717-18 [167 CR 636].)
NOTES
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-634.]
F 6.11d
Charged Crime Must Be Natural And Probable
Consequence Of Original Object Of The Conspiracy
*Add to CJ 6.11:
To find the defendant liable for the act of another conspirator the following elements must be proved beyond a reasonable doubt:
1. The defendant, with knowledge of another’s unlawful intent to commit a crime, with an intent that such crime be committed, and with an intent to agree to commit the crime, entered into an agreement to commit the agreed target crime;
2. A co-conspirator committed an offense other than the agreed target crime; and
3. The offense committed by the co-conspirator was a natural and probable consequence of the agreed target crime.
Points and Authorities
The current language of CJ 6.11, paragraph 3, is incorrect because it speaks of “the natural and probable consequence of any crime or act of a conspirator to further the object of the conspiracy.” This language is incorrect because it should speak only of “the natural and probable consequence of the original object of the conspiracy….” In other words, the liability for the unintended act arises only if the unintended act was the “natural and probable consequence” of the agreed crime. (See e.g., People v. Prettyman (96) 14 C4th 248, 291 [58 CR2d 827].)
Accordingly, CJ 6.11 should be replaced with an instruction which sets forth the required elements for natural and probable consequence liability.
The above instruction is based on the development of the law of natural and probable consequences in the context of aiding and abetting. (See e.g., People v. Prettyman (96) 14 C4th 248, 291 [58 CR2d 827].)
F 6.11e
Natural And Probable Consequences: Objective Standard
*Add at end of CJ 6.11 the following:
You may not find the defendant liable for any act or crime committed by a co-conspirator unless a reasonable person under like circumstances [in the same situation as the defendant] would have recognized that the crime charged was a natural and probable consequence of the originally agreed target crime of the conspiracy.
Points and Authorities
It is well established that the natural and probable consequences doctrine, in the context of aiding and abetting liability, requires the use of an objective, reasonable person standard. (See FORECITE F 3.02a.) The same consideration should also apply to the use of the natural and probable consequences doctrine in the context of a conspiracy. (See generally People v. Garewal (85) 173 CA3d 285, 302 [218 CR 690] [“…we conclude the clear thrust of Beeman is to contain the reach of vicarious criminal responsibility of conspirators to natural and reasonable consequences of the conspiracy”]; see also People v. Hardy (92) 2 C4th 86, 188-89 [5 CR2d 796].)Accordingly, CJ 6.11, which does not include any discussion of the objective reasonable person standard, should be modified. [See Brief Bank # B-818 for additional briefing on this issue.]
NOTES: Additional issues relating to the natural and probable consequences doctrine in the context of aiding and abetting may also be applicable to CJ 6.11 and the application of the natural and probable consequences doctrine to conspiracy. (See FORECITE F 3.02 et seq.)
F 6.11f
Natural And Probable Consequences:
Improper To Define “Natural” As “In Accordance With Human Nature, Not Abnormal,” And
“Probable” As “Not Unlikely.”
*Add to CJ 3.02 / CJ 6.11:
(See FORECITE F 3.02i.)