Criminal Law

563. Conspiracy to Commit Murder

(The defendant[s]/Defendant[s] <insert name[s]>) (is/ are) charged [in Count ______] with conspiracy to commit murder.

To prove that (the/a) defendant is guilty of this crime, the People must prove that:

1. The defendant intended to agree and did agree with [one or more of] (the other defendant[s]/ [or] <insert name[s] or description[s] of coparticipant[s]>) to commit murder;

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;

3. (The/One of the) defendant[s][,] [or <insert name[s] or description[s] of coparticipant[s]>][,] [or (both/ all) of them] committed [at least one of] the overt act[s] alleged to accomplish the murder;

AND

4. At least one of these overt acts was committed in California.

To decide whether the defendant and [one or more of] the other alleged member[s] of the conspiracy intended to commit murder, please refer to Instructions , which define that crime.

The People must prove that the members of the alleged conspiracy had an agreement and intent to commit murder. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit that crime. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime.

An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.

[You must all agree that at least one alleged overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts.]

[You must make a separate decision as to whether each defendant was a member of the alleged conspiracy.]

[A member of a conspiracy does not have to personally know the identity or roles of all the other members.]

[Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy.]

[Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime when the defendant is charged with conspiracy. (See People v. Morante (1999) 20 Cal.4th 403, 416 [84 Cal.Rptr.2d 665, 975 P.2d 1071].) Use this instruction only if the defendant is charged with conspiracy to commit murder. If the defendant is charged with conspiracy to commit another crime, give CALCRIM No. 415, Conspiracy. If the defendant is not charged with conspiracy but evidence of a conspiracy has been admitted for another purpose, do not give either instruction. Give CALCRIM No. 416, Evidence of Uncharged Conspiracy.

The court has a sua sponte duty to instruct on the elements of the offense alleged to be the target of the conspiracy. (People v. Cortez (1998) 18 Cal.4th 1223, 1238-1239 [77 Cal.Rptr.2d 733, 960 P.2d 537]; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1706 [54 Cal.Rptr.2d 608].) Give all appropriate instructions defining the elements of murder.

In elements 1 and 3, insert the names or descriptions of alleged coconspirators if they are not defendants in the trial. (See People v. Liu (1996) 46 Cal.App.4th 1119, 1131 [54 Cal.Rptr.2d 578].) See also the Commentary section below.

Give the bracketed sentence that begins with "You must all agree that at least one overt act alleged" if multiple overt acts are alleged in connection with a single conspiracy. (See People v. Russo (2001) 25 Cal.4th 1124, 1135-1136 [108 Cal.Rptr.2d 436, 25 P.3d 641].)

Give the bracketed sentence that begins with "You must make a separate decision," if more than one defendant is charged with conspiracy. (See People v. Fulton (1984) 155 Cal.App.3d 91, 101 [201 Cal.Rptr. 879]; People v. Crain (1951) 102 Cal.App.2d 566, 581-582 [228 P.2d 307].)

Give the bracketed sentence that begins with "A member of a conspiracy does not have to personally know," on request if there is evidence that the defendant did not personally know all the alleged coconspirators. (See People v. Van Eyk (1961) 56 Cal.2d 471, 479 [15 Cal.Rptr. 1500 364 P.2d 326].)

Give the two final bracketed sentences on request. (See People v. Toledo-Corro (1959) 174 Cal.App.2d 812, 820 [345 P.2d 529].)

Defenses—Instructional Duty

If there is sufficient evidence that the defendant withdrew from the alleged conspiracy, the court has a sua sponte duty to give CALCRIM No. 420, Withdrawl from Conspiracy.

If the case involves an issue regarding the statute of limitations or evidence of withdrawl by the defendant, a unanimity instruction may be required. (People v. Russo (2001) 25 Cal.4th 1124, 1136, fn. 2 [108 Cal.Rptr.2d 436, 25 P.3d 641]; see also Related Issues section to CALCRIM No. 415, Conspiracy, and CALCRIM 3500, Unanimity.)

Related Instructions

CALCRIM No. 415, Conspiracy.

CALCRIM No. 520, Murder With Malice Aforethought.

Authority

Elements. Pen. Code, 182(a), 183; People v. Morante (1999) 20 Cal.4th 403, 416 [84 Cal.Rptr.2d 665, 975 P.2d 1071]; People v. Swain (1996) 12 Cal.4th 593, 600 [49 Cal.Rptr.2d 390, 909 P.2d 994]; People v. Liu (1996) 46 Cal.App.4th 1119, 1128 [54 Cal.Rptr.2d 578].

Overt Act Defined. Pen. Code, 184; People v. Saugstad (1962) 203 Cal.App.2d 536, 549-550 [21 Cal.Rptr. 740]; People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8 [134 Cal.Rptr. 784, 557 P.2d 75].

Elements of Underlying Offense. People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1706 [54 Cal.Rptr.2d 608]; People v. Cortez (1998) 18 Cal.4th 1223, 1238-1239 [77 Cal.Rptr.2d 733, 960 P.2d 537].

Express Malice Murder. People v. Swain (1996) 12 Cal.4th 593, 602, 603, 607 [49 Cal.Rptr.2d 390, 909 P.2d 994].

Premeditated First Degree Murder. People v. Cortez (1998) 18 Cal.4th 1223, 1232 [77 Cal.Rptr.2d 733, 960 P.2d 537].

Two Specific Intents for Conspiracy. People v. Miller (1996) 46 Cal.App.4th 412, 423-426 [53 Cal.Rptr.2d 773], disapproved by People v. Cortez (1998) 18 Cal.4th 1223 [960 P.2d 537] to the extent it suggests instructions on premeditation and deliberation must be given in every conspiracy to murder case.

Unanimity on Specific Overt Act Not Required. People v. Russo (2001) 25 Cal.4th 1124, 1133-1135 [108 Cal.Rptr.2d 436, 35 P.3d 641].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, 77, 78.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141, Conspiracy, Solicitation, and Attempt, 141.01[2], 141.02[3], [4][b], [5][c], Ch. 142, Crimes Against the Person, 142.01[2][e] (Matthew Bender).

Commentary

It is sufficient to refer to coconspirators in the accusatory pleading as "persons unknown." (People v. Sacramento Butchers' Protective Association (1910) 12 Cal.App. 471, 483 [107 P. 712]; People v. Roy (1967) 251 Cal.App.2d 459, 463 [59 Cal.Rptr. 636]; see 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, 82.) Nevertheless, this instruction assumes the prosecution has named at least two members of the alleged conspiracy, whether charged or not.

Conspiracy to commit murder cannot be based on a theory of implied malice. (People v. Swain (1996) 12 Cal.4th 593, 602, 603, 607 [49

Cal.Rptr.2d 390, 909 P.2d 994].) All conspiracy to commit murder is necessarily conspiracy to commit premeditated first degree murder. (People v. Cortez (1998) 18 Cal.4th 1223, 1232 [77 Cal.Rptr.2d 733, 960 P.2d 537].)

Lesser Included Offenses

There is no crime of conspiracy to commit attempted murder. (People v. Iniguez (2002) 96 Cal.App.4th 75, 79 [116 Cal.Rptr.2d 634].)

Related Issues

Multiple Conspiracies

Separately planned murders are punishable as separate conspiracies, even if the separate murders are incidental to a single objective. (People v. Liu (1996) 46 Cal.App.4th 1119, 1133 [54 Cal.Rptr.2d 578].)

See the Related Issues section to CALCRIM No. 415, Conspiracy.

(New January 2006)