California Criminal Jury Instructions (CALCRIM) (2017)

415. Conspiracy

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B. CONSPIRACY
415.Conspiracy (Pen. Code, § 182)
[I have explained that (the/a) defendant may be guilty of a crime if (he/
she) either commits the crime or aids and abets the crime. (He/She) may
also be guilty if (he/she) is a member of a conspiracy.]
(The defendant[s]/Defendant[s] <insert name[s]>)(is/are)
charged [in Count ] with conspiracy to commit
<insert alleged crime[s]> [in violation of Penal Code section 182].
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
<insert alleged crime[s]>;
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 <insert alleged
crime[s]>;
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 following alleged overt act[s] to
accomplish <insert alleged crime[s]>:
<insert the alleged overt acts>;
AND
4. [At least one of these/This] overt act[s] was committed in
California.
To decide whether (the/a) defendant committed (this/these) overt act[s],
consider all of the evidence presented about the act[s].
To decide whether (the/a) defendant and [one or more of] the other
alleged member[s] of the conspiracy intended to commit
<insert alleged crime[s]>, please refer to the separate instructions that I
(will give/have given) you on (that/those) crime[s].
The People must prove that the members of the alleged conspiracy had
an agreement and intent to commit <insert alleged
crime[s]>. 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/one or more of those) crime[s]. An agreement
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may be inferred from conduct if you conclude that members of the
alleged conspiracy acted with a common purpose to commit the
crime[s].
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.]
[The People allege that the defendant[s] conspired to commit the
following crimes: <insert alleged crime[s]>. You may not
find (the/a) defendant guilty of conspiracy unless all of you agree that
the People have proved that the defendant conspired to commit at least
one of these crimes, and you all agree which crime (he/she) conspired to
commit.] [You must also all agree on the degree of the crime.]
[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.]
New January 2006; Revised August 2006, February 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this 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].) If the defendant
is charged with conspiracy to commit murder, do not give this instruction. Give
CALCRIM No. 563, Conspiracy to Commit Murder. If the defendant is not charged
with conspiracy but evidence of a conspiracy has been admitted for another
purpose, do not give this instruction. Give CALCRIM No. 416, Evidence of
Uncharged Conspiracy.
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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 the offense or offenses alleged as targets of the conspiracy.
The court has a sua sponte duty to give a unanimity instruction if “the evidence
suggested two discrete crimes, i.e., two discrete conspiracies . . . .” (People v.
Russo (2001) 25 Cal.4th 1124, 1135 [108 Cal.Rptr.2d 436, 25 P.3d 641]; see also
People v. Diedrich (1982) 31 Cal.3d 263, 285–286 [182 Cal.Rptr. 354, 643 P.2d
971].) A unanimity instruction is not required if there is “merely possible
uncertainty on how the defendant is guilty of a particular conspiracy.” (People v.
Russo, supra, 25 Cal.4th at p. 1135.) Thus, the jury need not unanimously agree as
to what overt act was committed or who was part of the conspiracy. (People v.
Russo, supra, 25 Cal.4th at pp. 1135–1136.) However, it appears that a unanimity
instruction is required when the prosecution alleges multiple crimes that may have
been the target of the conspiracy. (See People v. Diedrich, supra, 31 Cal.3d at pp.
285–286 [approving of unanimity instruction as to crime that was target of
conspiracy]; but see People v. Vargas (2001) 91 Cal.App.4th 506, 560–561, 564
[110 Cal.Rptr.2d 210] [not error to decline to give unanimity instruction; if was
error, harmless].) Give the bracketed paragraph that begins, “The People alleged
that the defendant[s] conspired to commit the following crimes,” if multiple crimes
are alleged as target offenses of the conspiracy. Give the bracketed sentence
regarding the degree of the crime if any target felony has different punishments for
different degrees. (See Pen. Code, § 182(a).) The court must also give the jury a
verdict form on which it can state the specific crime or crimes that the jury
unanimously agrees the defendant conspired to commit.
In addition, if a conspiracy case involves an issue regarding the statute of
limitations or evidence of withdrawal by the defendant, a unanimity instruction
may be required. (People v. Russo, supra, 25 Cal.4th at p. 1136, fn. 2; see also
Related Issues section below on statute of limitations.)
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 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. 150, 364 P.2d 326].)
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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,
Withdrawal From Conspiracy.
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]; see People v. Brown
(1991) 226 Cal.App.3d 1361, 1368 [277 Cal.Rptr. 309]; People v. Tatman
(1993) 20 Cal.App.4th 1, 10–11 [24 Cal.Rptr.2d 480].
• Association Alone Not a Conspiracy. People v. Drolet (1973) 30 Cal.App.3d
207, 218 [105 Cal.Rptr. 824]; People v. Toledo-Corro (1959) 174 Cal.App.2d
812, 820 [345 P.2d 529].
• Elements of Underlying Offense. 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].
• Two Specific Intents. People v. Miller (1996) 46 Cal.App.4th 412, 423–426
[53 Cal.Rptr.2d 773], disapproved on other ground in People v. Cortez (1998)
18 Cal.4th 1223, 1239 [77 Cal.Rptr.2d 733, 960 P.2d 537].
• Unanimity on Specific Overt Act Not Required. People v. Russo (2001) 25
Cal.4th 1124, 1133–1135 [108 Cal.Rptr.2d 436, 25 P.3d 641].
• Unanimity on Target Offenses of Single Conspiracy. People v. Diedrich (1982)
31 Cal.3d 263, 285–286 [182 Cal.Rptr. 354, 643 P.2d 971]; People v. Vargas
(2001) 91 Cal.App.4th 506, 560–561, 564 [110 Cal.Rptr.2d 210].
• Penal Code Section 182 Refers to Crimes Under California Law Only. People
v. Zacarias (2007) 157 Cal.App.4th 652, 660 [69 Cal.Rptr.3d 81].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 68–97.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[2][a][i], 85.03[2][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.01, 141.02, 141.10 (Matthew Bender).
COMMENTARY
It is sufficient to refer to coconspirators in the accusatory pleading as “persons
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unknown.” (People v. Sacramento Butchers’ Protective Ass’n (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.
LESSER INCLUDED OFFENSES
The court has a sua sponte duty to instruct the jury on a lesser included target
offense if there is substantial evidence from which the jury could find a conspiracy
to commit that offense. (People v. Horn (1974) 12 Cal.3d 290, 297 [115 Cal.Rptr.
516, 524 P.2d 1300], disapproved on other ground in People v. Cortez (1998) 18
Cal.4th 1223, 1237–1238 [77 Cal.Rptr.2d 733, 960 P.2d 537]; People v. Cook
(2001) 91 Cal.App.4th 910, 918 [111 Cal.Rptr.2d 204]; People v. Kelley (1990) 220
Cal.App.3d 1358, 1365–1366, 1370 [269 Cal.Rptr. 900].
There is a split of authority whether a court may look to the overt acts in the
accusatory pleadings to determine if it has a duty to instruct on any lesser included
offenses to the charged conspiracy. (People v. Cook,supra, 91 Cal.App.4th at pp.
919–920, 922 [court may look to overt acts to determine whether charged offense
includes a lesser included offense]; contra, People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1708–1709 [54 Cal.Rptr.2d 608] [court should examine
description of agreement in pleading, not description of overt acts, to decide
whether lesser offense was necessarily the target of the conspiracy].)
RELATED ISSUES
Acquittal of Coconspirators
The “rule of consistency” has been abandoned in conspiracy cases. The acquittal of
all alleged conspirators but one does not require the acquittal of the remaining
alleged conspirator. (People v. Palmer (2001) 24 Cal.4th 856, 858, 864–865 [103
Cal.Rptr.2d 13, 15 P.3d 234].)
Conspiracy to Collect Insurance Proceeds
A conspiracy to commit a particular offense does not necessarily include a
conspiracy to collect insurance proceeds. (People v. Leach (1975) 15 Cal.3d 419,
435 [124 Cal.Rptr. 752, 541 P.2d 296].)
Death of Coconspirator
A surviving conspirator is liable for proceeding with an overt act after the death of
his or her coconspirator. (People v. Alleyne (2000) 82 Cal.App.4th 1256, 1262 [98
Cal.Rptr.2d 737].)
Factual Impossibility
Factual impossibility of accomplishing a substantive crime is not a defense to
conspiracy to commit that crime. (People v. Liu (1996) 46 Cal.App.4th 1119,
1130–1131 [54 Cal.Rptr.2d 578]; see also United States v. Jimenez Recio (2003)
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537 U.S. 270, 274–275 [123 S.Ct. 819, 154 L.Ed.2d 744] [rejecting the rule that a
conspiracy ends when the object of the conspiracy is defeated].)
Statute of Limitations
The defendant may assert the statute of limitations defense for any felony that is
the primary object of the conspiracy. The limitations period begins to run with the
last overt act committed in furtherance of the conspiracy. (Parnell v. Superior
Court (1981) 119 Cal.App.3d 392, 410 [173 Cal.Rptr. 906]; People v. Crosby
(1962) 58 Cal.2d 713, 728 [25 Cal.Rptr. 847, 375 P.2d 839]; see Pen. Code,
§§ 800, 801.) If the substantive offense that is the primary object of the conspiracy
is successfully attained, the statute begins to run at the same time as for the
substantive offense. (People v. Zamora (1976) 18 Cal.3d 538, 560 [134 Cal.Rptr.
784, 557 P.2d 75].) “[I]f there is a question regarding the statute of limitations, the
court may have to require the jury to agree an overt act was committed within the
limitations period.” (People v. Russo (2001) 25 Cal.4th 1124, 1136, fn. 2 [108
Cal.Rptr.2d 436, 25 P.3d 641] [dicta].) See generally CALCRIM No. 3410, Statute
of Limitations and CALCRIM No. 3500, Unanimity.
Supplier of Goods or Services
A supplier of lawful goods or services put to an unlawful use is not liable for
criminal conspiracy unless he or she both knows of the illegal use of the goods or
services and intends to further that use. The latter intent may be established by
direct evidence of the supplier’s intent to participate, or by inference based on the
supplier’s special interest in the activity or the aggravated nature of the crime itself.
(People v. Lauria (1967) 251 Cal.App.2d 471, 476–477, 482 [59 Cal.Rptr. 628].)
Wharton’s Rule
If the cooperation of two or more persons is necessary to commit a substantive
crime, and there is no element of an alleged conspiracy that is not present in the
substantive crime, then the persons involved cannot be charged with both the
substantive crime and conspiracy to commit the substantive crime. (People v.
Mayers (1980) 110 Cal.App.3d 809, 815 [168 Cal.Rptr. 252] [known as Wharton’s
Rule or “concert of action” rule].)
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