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F 6.10.5 n1 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 (See People v. Cook (2001) 91 CA4th 910 [111 CR2d 204] (UNPUBLISHED portion, 2001 DAR 9033, 9051) [overt act improper because it “was part of the conspiratorial agreement itself”]; see also U.S. v. Pomranz (5th Cir. 1995) 43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 6.10.5a
Specification Of Conspiracy’s Objective
(PC 182)
SUBSEQUENT HISTORY: In the CALJIC Sixth Edition, CJ 6.10.5 was amended to adopt the language of FORECITE requiring specification of the particular target crime of the conspiracy. However, convictions based on the Fifth Edition instruction may still be subject to challenge especially in light of People v. Prettyman (96) 14 C4th 248, 254 [58 CR2d 827] [requiring sua sponte instruction on target crimes in aiding and abetting context]. [See Brief Bank # B-718 for additional briefing on this issue.]
*Modify ¶ 1, line 3 of CJ 6.10.5 as follows [added language is capitalized; deleted language is between <<>>:
“… to commit <<a>> THE public offense <<such as>> OF [insert specific crime intended] …”
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.
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
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 6.10.5b
Conspiracy: Specification Of Elements, Intent and Knowledge
*Re: CJ 6.10.5:
See FORECITE F 6.10e.
