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].)
AIDING AND ABETTING CALCRIM No. 415