F 6.25

F 6.25 n1 Propriety Of Multiple Conspiracy Convictions For Conspiracy To Commit Multiple Acts (PC 182).

There is a conflict in authority as to whether a conspiracy to commit multiple criminal acts may be the predicate for multiple convictions of conspiracy. In People v. Morocco (87) 191 CA3d 1449, 1452 [237 CR 113], the court relied upon People v. Cook (84) 151 CA3d 1142, 1146 [199 CR 269], to conclude — in the context of a solicitation charge — that the question of whether one or multiple solicitations took place is a question of fact. (Id. at 1453.) In making this determination, the Morocco court concluded that the jury should be instructed to consider whether the multiple crimes were part of a “larger all-inclusive” plan with a single objective and/or motive. (Ibid.; see also People v. Miley (84) 158 CA3d 25, 31, fn 4 [204 CR 347].)

The same rationale and need for instruction applies to a conspiracy charge. “Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts “were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.” (Blumenthal v. U.S. (47) 332 US 539, 558 [92 LEd 154; 68 SCt 248]; see also People v. Skelton (80) 109 CA3d 691, 717-18 [167 CR 636].)

The same division of the First District Court of Appeal which decided the Morocco case again concluded in People v. Williams (88) 201 CA3d 439, 444 [247 CR 200], that “whether one or multiple solicitations has occurred is a question of fact.” (Williams at 444.)

Two other decisions, however, conflict with Morocco. People v. Davis (89) 211 CA3d 317, 322-24 [259 CR 348], and People v. McLead (90) 225 CA3d 906, 919-20 [276 CR 187], disagreed with Morocco’s conclusion that the matter is a question of fact for the jury to determine under appropriate instruction, holding instead that the prosecutor has the authority to charge as many conflicting counts as are shown by the evidence.

CJ 6.25 and CJ 6.26 provide an instruction and form of verdict for use when there was a conspiracy to commit two or more felonies but only one offense of conspiracy is alleged.