Instruction Bank # I-869 (Re: FORECITE F 6.10a / F 6.10b / F 6.10e / F 6.10g [Conspiracy: Timing Of Overt Act — Must Be Committed After Agreement But Before Target Offense (PC 182)].)
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The below instruction was given in People v. Oi Chi Wong (Mendocino County # SCUK-CRCR-99-34511-04) in which the defendants were charged with two felony counts of conspiracy to violate Fish and Game laws regarding abalone taking and sales. Post-verdict juror interviews indicated that the jury relied on the modifications in failing to convict on any of the felony charges.
CALJIC 6.10 (Modified)
CONSPIRACY And Overt Act – Defined
A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of unlawful possession of abalone, unlawful taking of abalone for commercial purposes or unlawful sale of abalone, and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. As used in these instructions, the alleged object of the conspiracy was the crime of unlawful possession or taking for commercial purposes or sale of abalone.
In order to prove any 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 crimes of unlawful possession of abalone, unlawful taking of abalone for commercial purposes or unlawful sale of abalone;
2. The defendant and other parties to the agreement each had the specific intent to agree to commit the crimes of unlawful possession of abalone, unlawful taking of abalone for commercial purposes or unlawful sale of abalone;
3. The defendant and other parties each had actual knowledge of the existence of the agreement and the scope, design and purposes of the agreement; and
4. At least one of the overt acts alleged in the indictment to be an overt act was committed and constituted an overt act.
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.
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 the alleged overt act was committed.
The term “overt act” means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commit a crime and which step or act is done in furtherance of the accomplishment of the object of the conspiracy.
To be an “overt act”, the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that the step or act, in and of itself, be a criminal or an unlawful act.
To qualify as an “overt act,” at least one of the acts alleged in Count One must have occurred after the agreement but before the commission of the crimes of unlawful possession or unlawful taking of abalone for commercial purposes, which the prosecution alleges as the object of the conspiracy in Count One.
Likewise, at least one of the acts alleged in Count Two must have occurred after the agreement but before the commission of the crimes of unlawful possession or unlawful sale of abalone, which the prosecution alleges as the object of the conspiracy in Count Two.