SERIES 500 HOMICIDE
F 563 Conspiracy To Commit Murder
TABLE OF CONTENTS
F 563.1 Titles And Identification Of Parties
F 563.1 Inst 1 Conspiracy To Commit Murder—Title
F 563.1 Inst 2 Identification Of Prosecution And Defendant
F 563.2 Conspiracy To Commit Murder— Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 563.3 Conspiracy To Commit Murder— Language That Is Argumentative, Confusing, Etc. [Reserved]
F 563.4 Conspiracy To Commit Murder—Burden Of Proof Issues
F 563.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 563.5 Conspiracy To Commit Murder— Elements And Definitions
F 563.5 Inst 1 Conspiracy To Commit Murder: Intent To Kill Requirement
F 563.6 Conspiracy To Commit Murder—Defense Theories [Reserved]
F 563.7 Conspiracy To Commit Murder—Preliminary Fact Issues [Reserved]
F 563.8 Conspiracy To Commit Murder—Unanimity/Duplicity/Multiplicity [Reserved]
F 563.9 Conspiracy To Commit Murder—Lesser Offense Issues [Reserved]
F 563 NOTES
F 563 Note 1 Unanimity As To Overt Act: Conflict Between Decision Of The California Supreme Court
Return to Series 500 Table of Contents.
F 563.1 Titles And Identification Of Parties
F 563.1 Inst 1 Conspiracy To Commit Murder—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 563.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 563.2 Conspiracy To Commit Murder—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 563.3 Conspiracy To Commit Murder—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 563.4 Conspiracy To Commit Murder—Burden Of Proof Issues
F 563.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 563.5 Conspiracy To Commit Murder—Elements And Definitions
F 563.5 Inst 1 Conspiracy To Commit Murder: Intent To Kill Requirement
*Modify CC 563, Element 2, as follows [added language is underlined; deleted language is stricken]:
2. At the time of the agreement, the defendant and [one or more of] the other alleged member[s] of the conspiracy intended that one or more of them would commit murder unlawfully kill __________________<name of alleged victim> will express malice;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Intent To Kill RequiredC As with the analogous crimes of attempted murder and assault with intent to commit murder (former PC 217), conspiracy to commit murder requires intent to kill (express malice) and cannot be based on implied malice. (See e.g., People v. Collie (1981) 30 C3d 43, 62 [attempted murder]; People v. Avena (1996) 13 C4th 394, 416-17 [assault with intent to commit murder].)
Hence, a conspiracy to commit murder may exist if, among other things, “at least two” of the participants, one of whom is the defendant, intended to kill. (People v. Swain (1996) 12 C4th 593, 613; see also People v. Morante (1999) 20 C4th 403, 416.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 563.6 Conspiracy To Commit Murder—Defense Theories [Reserved]
F 563.7 Conspiracy To Commit Murder—Preliminary Fact Issues [Reserved]
F 563.8 Conspiracy To Commit Murder—Unanimity/Duplicity/Multiplicity [Reserved]
F 563.9 Conspiracy To Commit Murder—Lesser Offense Issues [Reserved]
F 563 Notes
F 563 Note 1 Unanimity As To Overt Act: Conflict Between Decision Of The California Supreme Court
CALCRIM 563 tells the jury that it need not unanimously agree on which overt act was committed. This may be an incorrect statement of the law.
In People v. Jackson (1996) 13 C4th 1164, the Supreme Court held that unanimity was required as part of the defendant’s right to due process of law but that there is no requirement for a special jury instruction on this. The Supreme Court felt that the unanimity requirement could be satisfied by special verdicts or findings. (Id. At pp. 1226-27.)
In a later case, People v. Russo (2001) 25 C4th1124, the California Supreme Court said that unanimity on overt acts was generally not required. (25 C4th at pp. 1135-36.) The Supreme Court did not mention the holding in People v. Jackson, supra, 13 C4th 1164, however. Thus, the current Supreme Court has ruled in conflicting ways on this issue. Moreover, even in Russo, the Supreme Court noted that there were several situations in which unanimity would be required.
