420. Withdrawal From Conspiracy
The defendant is not guilty of conspiracy to commit <insert target offense> if (he/she) withdrew from the alleged conspiracy before any overt act was committed. To withdraw from a conspiracy, the defendant must truly and affirmatively reject the conspiracy and communicate that rejection, by word or by deed, to the other members of the conspiracy known to the defendant.
[A failure to act is not sufficient alone to withdraw from a conspiracy.]
[If you decide that the defendant withdrew from a conspiracy after an overt act was committed, the defendant is not guilty of any acts committed by remaining members of the conspiracy after (he/she) withdrew.]
<Alternative A—reasonable doubt standard>
[The People have the burden of proving beyond a reasonable doubt that the defendant did not withdraw from the conspiracy [before an overt act was committed]. If the People have not met this burden, you must find the defendant not guilty of conspiracy. [If the People have not met this burden, you must also find the defendant not guilty of the additional acts committed after (he/she) withdrew.]]
<Alternative B—preponderance standard>
[The defendant has the burden of proving by a preponderance of the evidence that (he/she) withdrew from the conspiracy [before an overt act was committed]. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
The court has a sua sponte duty to give this instruction if there is evidence that the defendant attempted to withdraw from the conspiracy.
There is no authority as to whether the defense must prove withdrawal by a preponderance of the evidence or whether the prosecution must prove beyond a reasonable doubt that the defense is not established. The court must instruct as to which party bears the burden. (People v. Mower (2002) 28 Cal.4th 457, 478-479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) The committee has provided the court with both options. The committee recommends reviewing People v. Mower, supra, 28 Cal.4th at pp. 478-479, discussing affirmative defenses and burdens of proof generally.
Withdrawal From Conspiracy as Defense. People v. Crosby (1962) 58 Cal.2d 713, 731 [25 Cal.Rptr. 847, 375 P.2d 839].
Ineffective Withdrawal. People v. Sconce (1991) 228 Cal.App.3d 693, 701 [279 Cal.Rptr. 59]; People v. Beaumaster (1971) 17 Cal.App.3d 996, 1003 [95 Cal.Rptr. 360].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 92.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141, Conspiracy, Solicitation, and Attempt, § 141.02,  (Matthew Bender).
(New January 2006)