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F 6.20 n1 Withdrawal From Conspiracy Required Before Commission Of Overt Act (PC 182).
To avoid liability for the crime of conspiracy, the defendant must withdraw from the conspiracy before commission of the overt act. (4 Wharton’s Criminal Law, Conspiracy (14th Ed. 1981) § 734, pp. 555-57; People v. Sconce (91) 228 CA3d 693, 701 [279 CR 59]; but see FORECITE F 6.20 n2 [effect of withdrawal after overt act].)
F 6.20 n2 Withdrawal From Conspiracy Terminates Liability For Subsequent Offenses Committed By Other Conspirators (PC 182).
Under California law, a conspirator who withdraws from the conspiracy affirmatively and in good faith, and communicates that withdrawal to the other conspirators, remains liable for the conspiracy itself but avoids liability for the target offense or any subsequent acts committed by coconspirators. (People v. Sconce (91) 228 CA3d 693, 701; see also People v. Nguyen DEPUBLISHED (2003) 111 CA4th 184; Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, §§ 92, pp. 309-310.)
However, if the withdrawal is before the commission of an overt act liability for the conspiracy itself may be avoided. (See FORECITE F 6.20 n1.)
F 6.20 n3 Conspiracy As Lesser Included Offense Of Felony Murder.
(See FORECITE F 8.21 n21.)
F 6.20a
Withdrawal From Conspiracy: Sufficiency Of Showing
(PC 182)
*Add after ¶ 2 of CJ 6.20:
Withdrawal may be communicated by an affirmative act bringing home the fact of [his] [her] withdrawal to [his] [her] companions. The affirmative act must be made in time for [his] [her] companions to effectively abandon the conspiracy and in a way which would be sufficient to inform a reasonable person of the withdrawal.
If you have a reasonable doubt as to whether or not the defendant withdrew from the conspiracy, you must find that [he] [she] did withdraw.
Points and Authorities
CJ 6.20 provides that in order to withdraw from a conspiracy the defendant must make “an affirmative and bona fide rejection or repudiation of the conspiracy” and must communicate this to the other conspirators. This provision is founded upon People v. Beaumaster (71) 17 CA3d 996, 1003 [95 CR 360] and People v. Crosby (62) 58 C2d 713, 730 [25 CR 847].
However, this provision could be interpreted to require communication of withdrawal by words. This is not the law. Withdrawal may be communicated by an “affirmative act” as well.
“[O]ne who has joined a criminal conspiracy can only effectively withdraw therefrom by some affirmative act bringing home the fact of his withdrawal to his confederates.” (Loser v. Superior Court (47) 78 CA2d 30, 32 [177 P2d 320]; accord People v. Moran (58) 166 CA2d 410, 415-16 [333 P2d 243].) This test is utilized by “virtually all courts” with the added requirement that the act be sufficient “to inform a reasonable man.” (2 LaFave and Scott, Substantive Criminal Law (86) § 6.5f, pp. 109-10.)
As with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as identity (CJ 2.91), alibi (CJ 4.50), unconsciousness (CJ 4.31) or self-defense (CJ 5.15), the jury should be instructed that the defendant need only raise a reasonable doubt as to withdrawal. (See People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [approving CJ 2.91 and CJ 4.50 — which require acquittal if there is a reasonable doubt as to the defense]; see also People v. Tewksbury (76) 15 C3d 953, 963-64, fn 9 [127 CR 135]; and FORECITE PG III(D)&(E).)
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 generally, FORECITE PG VII(C).]
F 6.20b
Withdrawal From Conspiracy:
Prosecution Must Prove Beyond A Reasonable Doubt That
Defendant Did Not Withdraw
(PC 182)
*To be added after the second ¶ of CJ 6.20:
[If you have] [If the evidence leaves you with] a reasonable doubt as to whether the defendant withdrew from the conspiracy, you must find that [he] [she] did withdraw.
ALTERNATIVE:
The prosecution has the burden of proving that the defendant did not withdraw from the conspiracy. Unless, after considering all the evidence, [all jurors] [you all] agree that the prosecution has proven beyond a reasonable doubt that the defendant did not withdraw from the conspiracy, the defendant must be acquitted.
Points and Authorities
The defense of withdrawal from the conspiracy is founded upon a factual contention which, if established, would overcome or negate an element of the charged offense. Therefore, the jury should be instructed that the defendant need only leave the jury with a reasonable doubt as to this defense. (See People v. Tewksbury (76) 15 C3d 953, 963-64, fn 9 [127 CR 135]; see also FORECITE PG PG III(D)&(E); F 1.00 n9.)
The defense theory of withdrawal from a conspiracy negates an element of the conspiracy charge, namely membership in the conspiracy. (See Cantoni, Withdrawal from Conspiracy: A Constitutional Allocation of Evidentiary Burdens (1982) 51 Fordham L.Rev. 438, 440; see also People v. Belmontes (88) 45 C3d 744, 791 [248 CR 126].) Membership in the conspiracy — or more precisely, the existence of participation in an agreement meeting the legal criteria for conspiracy — is an essential element of the offense. The methods of proving that element and instructions on those methods might differ somewhat for a defense that the defendant was never in the conspiracy, as against a defense that the defendant was once in the conspiracy but met the strict legal standards for withdrawal. But in the end, it’s two different methods underlying the same element.
Hence, the defense should have the right to a defense theory instruction on withdrawal which specifically relates the prosecution’s burden of proof to the defense theory. (See People v. Tewksbury (76) 15 C3d 953, 963 [127 CR 135]; FORECITE PG PG III(A).)
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).]
NOTES: [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-645.]
