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F 8.69 n1 Conspiracy To Commit Murder.
(See FORECITE F 6.10 et seq. re: conspiracy issues.)
F 8.69a
Modification When Crime Involves Fetal Victim
*Modify CJ 8.69 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)
F 8.69b
Conspiracy To Commit Murder:
Defendant Must Be One Of The Participants
Who Intended To Kill
*Modify CJ 8.69 Elements as follows [added language is capitalized; deleted language is between << >>]:
In order to prove this crime, each of the following elements must be proved:
1. [THE DEFENDANT ] [_________ (NAME OF DEFENDANT)] AND ONE <<Two>> or more persons entered into an agreement to kill unlawfully another human being;
2. IN SO DOING [THE DEFENDANT] [__________ (NAME OF DEFENDANT)] AND THE OTHER PERSON OR PERSONS <<[Each] [At least two] of the persons>> specifically intended to enter into an agreement <<with one or more other persons>> for that purpose OF UNLAWFULLY KILLING ANOTHER HUMAN BEING;
3. [THE DEFENDANT] [__________ (NAME OF DEFENDANT)] AND THE OTHER PERSON OR PERSONS EACH <<[Each] [At least two] of the persons to the agreement>> harbored express malice aforethought, namely a specific intent to kill unlawfully another human being; and
4. An overt act was committed in this state by one or more of the persons [who agreed and intended to commit murder].
Points and Authorities
A conspiracy to commit murder may exist if, among other things, “at least two” of the participants intended to kill. (People v. Swain (96) 12 C4th 593, 613.) But for a particular defendant to be guilty of the crime of conspiring to commit murder, that defendant must be one of the participants who harbored the specific intent to kill. (See People v. Morante (99) 20 C4th 403, 416.) Hence, when there are more than two alleged conspirators, the CJ instruction must be modified to assure that the jury is not erroneously permitted to find the defendant guilty of conspiracy to commit murder without regard to whether or not that defendant personally intended to kill. (See People v. Petznick (2003) 114 CA4th 663, 681.)
NOTE: This is an example of the need to provide “application language” which explicitly informs the jury what the defendant must have done. (See e.g., FORECITE 7.20b.)
