California Criminal Jury Instructions (CALCRIM) (2017)

563. Conspiracy to Commit Murder

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563.Conspiracy to Commit Murder (Pen. Code, § 182)
(The defendant[s]/Defendant[s] <insert name[s]>)(is/are)
charged [in Count ] with conspiracy to commit murder [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 intentionally and
unlawfully kill;
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 intentionally and unlawfully kill;
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] alleged to
accomplish the killing: <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 overt act[s].
To decide whether (the/a) 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.
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[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.]
New January 2006; Revised August 2006; Revised April 2010, February 2014
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
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(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].)
Do not cross-reference the murder instructions unless they have been modified to
delete references to implied malice. Otherwise, a reference to implied malice could
confuse jurors, because conspiracy to commit murder may not 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].)
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.
If the 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 (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].
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• 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 [77 Cal.Rptr.2d 733, 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, 25 P.3d 641].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 77, 78.
6Millman, 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].)
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 pleaded in charge of conspiracy to
determine whether charged offense includes a lesser included offense]; contra,
People v. Fenenbock,supra, 46 Cal.App.4th at pp. 1708–1709 [court should
examine description of agreement in pleading, not description of overt acts, to
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decide whether lesser offense was necessarily the target of the conspiracy].)
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.
564–569. Reserved for Future Use
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