California Criminal Jury Instructions (CALCRIM) (2017)

416. Evidence of Uncharged Conspiracy

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416.Evidence of Uncharged Conspiracy
The People have presented evidence of a conspiracy. A member of a
conspiracy is criminally responsible for the acts or statements of any
other member of the conspiracy done to help accomplish the goal of the
conspiracy.
To prove that (the/a) defendant was a member of a conspiracy in this
case, 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 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 or another member of the
conspiracy 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
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
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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 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 decide as to each defendant whether he or she was a member
of the alleged conspiracy.]
[The People contend that the defendant[s] conspired to commit one of
the following crimes: <insert alleged crime[s]>. You may
not find (the/a) defendant guilty under a conspiracy theory 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, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction when the prosecution has
not charged the crime of conspiracy but has introduced evidence of a conspiracy to
prove liability for other offenses or to introduce hearsay statements of
coconspirators. (See, e.g., People v. Pike (1962) 58 Cal.2d 70, 88 [22 Cal.Rptr.
664, 372 P.2d 656]; People v. Ditson (1962) 57 Cal.2d 415, 447 [20 Cal.Rptr. 165,
369 P.2d 714].)
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.
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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].) See the Bench Notes to CALCRIM No. 415, Conspiracy, on when the court
is required to give a unanimity instruction.
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 to CALCRIM No.
415, Conspiracy.
Give the bracketed sentence that begins with “You must make a separate decision,”
if the prosecution alleges that more than one defendant was a member of the
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].)
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.
Related Instructions
CALCRIM No. 417, Liability for Coconspirators’ Acts.
CALCRIM No. 418, Coconspirator’s Statements.
CALCRIM No. 419, Acts Committed or Statements Made Before Joining
Conspiracy.
AUTHORITY
• 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. 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].
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• Two Specific Intents. People v. Miller (1996) 46 Cal.App.4th 412, 423–426
[53 Cal.Rptr.2d 773], disapproved on other grounds in People v. Cortez (1998)
18 Cal.4th 1223, 1240 [77 Cal.Rptr.2d 733, 960 P.2d 537].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 72–102.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.01, 141.02 (Matthew Bender).
RELATED ISSUES
See the Related Issues section to CALCRIM No. 415, Conspiracy.
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