THE PEOPLE, Plaintiff and Respondent, v. MARIO ALBERTO CORTEZ, Defendant and Appellant.
No. S055733
Supreme Court of California
Aug. 27, 1998.
Appellant‘s petition for a rehearing was denied October 14, 1998.
18 Cal.4th 1223
BAXTER, J.
COUNSEL
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Kenneth C. Byrne, John R. Gorey and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAXTER, J.—
INTRODUCTION
In People v. Swain (1996) 12 Cal.4th 593 [49 Cal.Rptr.2d 390, 909 P.2d 994] (Swain), we held that the crime of conspiracy to commit murder requires a finding of unlawful intent to kill, i.e., express malice, and that such offense cannot be committed if the underlying criminal objective is second degree implied malice murder. (Id. at p. 603.) Left open in Swain was the question of whether the crime of conspiracy to commit murder is further divisible into degrees with differing punishments, or whether it is a unitary offense for which the punishment is that prescribed for murder in the first degree in every instance. (Id. at p. 608.) We granted review in this case to decide that question. We conclude all conspiracy to commit murder “is necessarily ‘conspiracy to commit [premeditated] first degree murder” (id. at p. 609) and is therefore punishable in the same manner as first degree murder pursuant to the provisions of
Our order granting review additionally asked the parties to address the related question of whether the trial court below erred in failing to instruct the jury on premeditation and deliberation with regard to the conspiracy to commit murder charge. Given our holding that conspiracy to commit murder is a unitary offense punishable in every instance with the penalty prescribed for first degree murder, there is no occasion or requirement for the jury to further determine the “degree” of the underlying target offense of murder, and thus no need for specific instruction on premeditation and deliberation respecting the conspiracy charge. The judgment of the Court of Appeal reached these same conclusions and accordingly shall be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The question before us is one of law; the facts are not disputed and can be briefly summarized. This prosecution arose out of a 1992 Los Angeles street gang shooting. At that time, defendant Mario Alberto Cortez (also known as “Psycho“) had been a member of the gang Crazy Cats for about one year. In the summer of 1992, the Crazy Cats and another street gang, the King Boulevard Stoners (also known as the “Stoners” or “KBS“), were “having a war,” with “shootings going back and forth daily.” Three weeks prior to the shootings in this case, a member of the Crazy Cats named Javaco (also known as “Smiley“) had been killed in a drive-by shooting attributed to the King Boulevard Stoners.
After midnight on July 13, 1992, defendant and another member of the Crazy Cats, Mauricio Corletto (also known as “Dusty“), decided to retaliate for Javaco‘s death by doing a drive-by shooting in King Boulevard Stoners territory. At that time, the King Boulevard Stoners spent their summer nights smoking marijuana and drinking beer in the Wadsworth Junior High School schoolyard. Defendant and Corletto drove to this schoolyard in a stolen Cadillac. Defendant drove the stolen vehicle; Corletto sat in the
Substantial prosecution evidence, including tape-recorded statements given to police by both defendant and a King Boulevard Stoners gang member, established that Corletto leaned out of the Cadillac‘s window, yelled “Crazy Cats,” and fired four shots into the schoolyard. King Boulevard Stoners members returned the fire, hitting Corletto in the temple. Defendant attempted to drive away but the Cadillac stalled and he was forced to flee on foot. Several carloads of Crazy Cat gang members arrived, the stolen Cadillac was retrieved, and more gunfire was exchanged. When the smoke cleared and authorities arrived on the scene, paramedics found Corletto lying on the ground with a gunshot wound to the head. He was placed on life support but died from his wounds the following day.
Defendant testified at trial and in some respects sought to contradict his earlier tape-recorded description of these facts. On direct examination he claimed that although he and Corletto originally planned a drive-by shooting, they changed their minds when they could not convince any other Crazy Cats members to join them. The reason they went to the King Boulevard schoolyard was “to check it out to see who was there, how many of them were there.” Corletto was killed when the Cadillac stalled and King Boulevard Stoners members attacked. However, prior to waiving his rights and furnishing the tape-recorded statement to police, defendant told detectives he had gone to the schoolyard in furtherance of the planned drive-by shooting, for the purpose of avenging the murder of fellow Crazy Cats member Smiley. On cross-examination defendant once again admitted that he and Corletto had gone to the schoolyard while armed to “do a drive-by shooting” and avenge fellow gang member Smiley‘s death.
Defendant was charged with Corletto‘s murder (
Defendant was convicted of conspiracy to commit murder, and the firearm use allegation was found true. The jury was unable to reach a verdict on the murder charge; that count was ultimately dismissed on the People‘s motion, as were the street gang enhancements. Defendant was sentenced to a term of 25 years to life, with an additional 1-year term for the firearm use finding. On appeal, he urged that the trial court erred in failing to require the jury to determine the degree of the murder alleged as the target offense of the charged conspiracy. The Court of Appeal rejected the claim and affirmed the judgment. We granted review to determine whether the crime of conspiracy to commit murder is divisible into degrees with differing punishments, or whether all conspiracies to commit murder are conspiracies to commit first degree murder as a matter of law.
DISCUSSION
I.
In Swain, supra, 12 Cal.4th at page 603, we held that the crime of conspiracy to commit murder requires a finding of unlawful intent to kill, i.e., express malice, and that conspiracy to commit murder cannot be based on the underlying criminal objective or target offense of second degree implied malice murder. We explained that conspiracy is an inchoate crime that does not require the commission of the substantive target offense that is the object of the conspiracy (id. at p. 599; see People v. Manson (1977) 71 Cal.App.3d 1, 47 [139 Cal.Rptr. 275]), and that “‘[a]s an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime,’ and ‘thus reaches further back into preparatory conduct than attempt . . . .’ (Model Pen. Code & Commentaries (1985) com. 1 to § 5.03, pp. 387-388.)” (Swain, supra, 12 Cal.4th at p. 600.) We further explained that, as regards the target offense of murder, unlawful intent to kill is the functional equivalent of express malice. (Id. at p. 601; see People v. Saille (1991) 54 Cal.3d 1103, 1114 [2 Cal.Rptr.2d 364, 820 P.2d 588].) We went on to observe that, “conspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, here murder, the object of the conspiracy. Since murder committed with intent to kill is the functional equivalent of express malice murder, conceptually speaking, no conflict arises between the specific intent element of conspiracy and the specific intent requirement for such category of murders. Simply put, where the conspirators agree or conspire with specific intent to kill and commit an overt act in furtherance of such agreement, they are guilty of conspiracy to commit express malice murder.” (Swain, supra, 12 Cal.4th at p. 602, original italics.)
Swain explains that the same reasoning cannot obtain where the underlying objective of the conspiracy is second degree implied malice murder. “Implied malice murder, in contrast to express malice, requires instead an intent to do some act, the natural consequences of which are dangerous to human life. ‘When the killing is the direct result of such an act,’ the requisite mental state for murder—malice aforethought—is implied. (CALJIC No. 8.31, italics added.) In such circumstances, ‘. . . it is not necessary to establish that the defendant intended that his act would result in the death of a human being.’ (Ibid.) Hence, under an implied malice theory of second degree murder, the requisite mental state for murder—malice aforethought—is by definition ‘implied,’ as a matter of law, from the specific intent to do some act dangerous to human life together with the circumstance that a killing has resulted from the doing of such act.” (Swain, supra, 12 Cal.4th at pp. 602-603, original italics.) “It is precisely due to this nature of implied malice murder that it would be illogical to conclude one can be found guilty of conspiring to commit murder where the requisite element of malice is implied. Such a construction would be at odds with the very nature of the crime of conspiracy—an ‘inchoate’ crime that ‘fixes the point of legal intervention at [the time of] agreement to commit a crime’ . . . [citation]—precisely because commission of the crime could never be established, or deemed complete, unless and until a killing actually occurred.” (Swain, supra, 12 Cal.4th at p. 603, original italics.)
In light of our unanimous conclusion in Swain that conviction of conspiracy to commit murder requires a finding of intent to kill and cannot be based on a theory of implied malice murder, and because the trial court had instructed the jury on theories of both express and implied malice and the jury had returned general verdicts, the defendants’ convictions of conspiracy to commit murder had to be reversed, and the issue of proper punishment for such convictions was therefore no longer in controversy and was moot. (Swain, supra, 12 Cal.4th at p. 610.) Accordingly, the Swain majority left open the “conceptually difficult question[] . . . regarding whether there exists a viable offense of conspiracy to commit express malice ‘second degree’ murder, and if there be such an offense, what is the applicable punishment.” (Id. at pp. 608, 610.)2 The issue is now ripe for decision in this case.
When Kynette was decided over 50 years ago,
same extent as in this code provided for the punishment of the commission of the said felony.” (
On appeal, Kynette urged that the trial court had erred in excusing certain potential jurors who could not, as a matter of conscience, vote for the death penalty. The argument was based on the assertion that because there were no degrees of conspiracy, the jury was powerless to determine the degree of the target murder and was therefore equally powerless to impose the death penalty. (Kynette, supra, 15 Cal.2d at p. 744.) In rejecting the contention, this court expressly held that “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree for the obvious reason that the agreement to murder necessarily involves the ‘willful, deliberate and premeditated’ intention to kill a human being. A murder committed in pursuance of such an agreement would unquestionably be a ‘willful, deliberate and premeditated’ murder of the first degree and punishable by death or life imprisonment.” (Kynette, supra, 15 Cal.2d at p. 745, italics added.)
In his separate concurring opinion in Swain, Justice Mosk observed: “In Kynette, we thereby impliedly held that the crime of conspiracy to commit murder is properly conspiracy to commit murder simpliciter. Under its reasoning, it is erroneous to speak of a ‘crime’ of ‘conspiracy to commit murder of the second degree‘: ‘a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree’ (People v. Kynette, supra, 15 Cal.2d at p. 745). Similarly, it is unnecessary to label the crime ‘conspiracy to commit murder of the first degree‘: there is no crime of ‘conspiracy to commit murder of the second—or any other—degree’ from which it may be distinguished.”
Kynette‘s conclusion that all conspiracy to commit murder is necessarily conspiracy to commit murder of the first degree was, and remains, a sound one because the current statutory definition of premeditation is akin to the definition of premeditation in effect when this court decided Kynette, supra, 15 Cal.2d 731, namely, mere “‘advanced planning of the crime.‘” (Swain, supra, 12 Cal.4th at p. 608.)
As noted, conspiracy is a specific intent crime requiring both an intent to agree or conspire and a further intent to commit the target crime or object of the conspiracy. (Swain, supra, 12 Cal.4th at p. 602.) Murder that is premeditated and deliberated is murder of the first degree. “‘[P]remeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’ (CALJIC No. 8.20 (5th ed. 1988), quoted with approval in People v. Perez (1992) 2 Cal.4th 1117, 1123 [9 Cal.Rptr.2d 577, 831 P.2d 1159].) The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ (People v. Thomas (1945) 25 Cal.2d 880, 900 [156 P.2d 7]; accord, People v. Perez, supra, 2 Cal.4th at p. 1127.)” (People v. Mayfield (1997) 14 Cal.4th 668, 767 [60 Cal.Rptr.2d 1, 928 P.2d 485]; see also People v. Stanley (1995) 10 Cal.4th 764, 795 [42 Cal.Rptr.2d 543, 897 P.2d 481].)
Consequently, it logically follows that where two or more persons conspire to commit murder—i.e., intend to agree or conspire, further intend to commit the target offense of murder, and perform one or more overt acts in furtherance of the planned murder—each has acted with a state of mind “functionally indistinguishable from the mental state of premeditating the target offense of murder.” (Swain, supra, 12 Cal.4th at pp. 608-609.) The mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder—hence all murder conspiracies are conspiracies to commit first degree murder, so to speak. More accurately stated, conspiracy to commit murder is a unitary offense punishable in every instance in the same manner as is first degree murder under the provisions of
In his separate concurring opinion in Swain, Justice Mosk elucidated the point further: “[Conspiracy to commit murder] does not require, as a factual
matter, a premeditated and deliberate intent to kill unlawfully. But an intent of such character is present in the context of a conspiracy, practically by definition, because it does not arise of a sudden within a single person but is necessarily formed and then shared by at least two persons. (Cf. People v. Ruiz (1988) 44 Cal.3d 589, 614 [244 Cal.Rptr. 200, 749 P.2d 854] [concluding that murder by lying in wait is, by definition, a kind of ‘willful, deliberate, and premeditated killing’ within the meaning of
Fifteen years after Kynette was decided, the Legislature amended the punishment language of
Twenty years after the Legislature amended the punishment provisions of
As Swain explains, two of the three reasons given in Horn in support of the conclusion that conspiracies to commit murder are divisible into degrees and subject to differing punishments are no longer the law.
“First, the characterization of premeditation upon which Horn, supra, 12 Cal.3d 290, relied, namely, a showing that the defendant was able to “‘maturely and meaningfully reflect upon the gravity of his contemplated act‘” (Horn, supra, 12 Cal.3d at p. 298, italics added, quoting People v. Wolff (1964) 61 Cal.2d 795, 821 [ 40 Cal.Rptr. 271, 394 P.2d 959]), has itself passed into history. Seven years after Horn was decided, the Legislature amended
“Second, since Horn, supra, 12 Cal.3d 290, was decided, the Legislature has abolished the defense of diminished capacity. (See Stats. 1981, ch. 404, § 4, p. 1592 [enacting
As a result of the Legislature‘s abrogation of the “mature and meaningful reflection” requirement for establishing premeditation, and its abolishment of the diminished capacity defense, there remains only the Horn court‘s interpretation of the provisions of
Much of the confusion engendered by Horn stems from its interpretation of the provisions of
As we observed in Swain, supra, 12 Cal.4th at pages 609-610, the point made in the Horn footnote can be refuted “by concluding that the portion of
Although it might be countered that the relevant punishment provisions of
In People v. Bright (1996) 12 Cal.4th 652 [49 Cal.Rptr.2d 732, 909 P.2d 1354] (Bright), we had occasion to interpret a legislative amendment of a statutory punishment provision similar to the 1955 amendment of Penal
Code section 182 here in question. Bright construed a 1986 amendment to
Bright addressed the question of whether the 1986 amendment to
Moreover, reading the punishment provisions of
We therefore conclude all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder, and that all murder conspiracies are punishable in the same manner as
committed, since in many conspiracy cases, as here, the target offense will not have been committed or completed), and instructions on premeditation and deliberation were therefore not required, instructions defining the essential elements of murder were required because defendant was charged with conspiring with his deceased accomplice Corletto to commit the underlying criminal objective or target offense of murder simpliciter. “[C]onspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, here murder, the object of the conspiracy.” (Swain, supra, 12 Cal.4th at p. 602.) Instructions on the basic elements of murder were therefore necessary to guide the jury in its determination of whether defendant harbored the requisite dual specific intent for conviction of conspiracy to commit murder.
The necessary instructions were given in this
Finally, in connection with its discussion of the murder instructions described above, the Court of Appeal below made the following observations with regard to the recent decision in People v. Miller (1996) 46 Cal.App.4th 412 [53 Cal.Rptr.2d 773] (Miller): “We observe that in People v. Miller (1996) 46 Cal.App.4th 412 [53 Cal.Rptr.2d 773], a case with superficial similarities to this one, another appellate panel found the following instructional deficiencies to be reversible error in the context of ‘conspiracy to commit willful, deliberate and premeditated murder‘: (1) omission of the ‘with the further specific intent to commit such offense’ language from CALJIC No. 6.10 [the basic conspiracy instruction]; and (2) failure to give either a free-standing murder or premeditation and deliberation instruction. In Miller the conspiracy appears to have been charged as a ‘conspiracy to commit willful, deliberate and premeditated murder,’ (46 Cal.App.4th at p. 416) and the trial court appears to have ‘expressly limited’ certain instructions to certain charges. (Id. at p. 426.) That did not happen in the present case.”
Given our conclusion that conspiracy to commit murder is a unitary crime punishable in the same manner as first degree murder in every instance, and that, because the jury is not required to determine the “degree” of the target offense of murder, instructions on
CONCLUSION
The judgment of the Court of Appeal is affirmed.
George, C. J., Mosk, J., Werdegar, J., Chin, J., and Brown, J., concurred.
MOSK, J.—I concur in the opinion of the court.
In my concurring opinion in People v. Swain (1996) 12 Cal.4th 593 [49 Cal.Rptr.2d 390, 909 P.2d 994], I anticipated, and resolved, the issue presented here.
“[T]he crime of conspiracy to commit murder” is defined “as the agreement by two or more persons, accompanied by an overt act, to effect a killing that is unlawful under the circumstances as they are believed to be and that is reflective of malice aforethought [citation]. So defined, the crime of conspiracy to commit murder requires two kinds of ‘intent’ strictly so called. One is intent to join together in a common endeavor: else, there is no
conspiracy to commit murder. The other is intent to kill unlawfully: else, there is no conspiracy to commit murder. The offense does not require, as a factual matter, a premeditated and deliberate intent to kill unlawfully. But an intent of such character is present in the context of a conspiracy, practically by definition, because it does not arise of a sudden within a single person but is necessarily formed and then shared by at least two persons.” (People v. Swain, supra, 12 Cal.4th at pp. 612-613, original italics & fn. omitted (conc. opn. of Mosk, J.).)
Because this is so, we were right to expressly hold in People v. Kynette (1940) 15 Cal.2d 731 [104 P.2d 794], notwithstanding its disapproval by People v. Horn (1974) 12 Cal.3d 290 [115 Cal.Rptr. 516, 524 P.2d 1300], which we here disapprove today, that ““a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree for the obvious reason that the agreement to murder necessarily involves the “willful, deliberate and premeditated” intention to kill a human being.’ [Citation.] Inasmuch as it encompasses malice aforethought, in fact express malice aforethought, such an ‘intention’ distinguishes murder from other homicide. Also, by its very terms, it differentiates murder of the first degree in one of its forms from murder of the second degree.” (People v. Swain, supra, 12 Cal.4th at p. 613, original italics (conc. opn. of Mosk, J.), quoting People v. Kynette, supra, 15 Cal.2d at p. 745.)
We were also right to impliedly hold in Kynette, again notwithstanding its disapproval by Horn, that the “crime of conspiracy to commit murder is properly conspiracy to commit murder simpliciter. Under its reasoning, it is erroneous to speak of a ‘crime’ of ‘conspiracy to commit murder of the second degree‘: ‘a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree’ [citation]. Similarly, it is unnecessary to label the crime ‘conspiracy to commit murder of the first degree‘: there is no crime of ‘conspiracy to commit murder of the second—or any other—degree’ from which it may be distinguished.” (People v. Swain, supra, 12 Cal.4th at pp. 613-614, original italics (conc. opn. of Mosk, J.), quoting People v. Kynette, supra, 15 Cal.2d at p. 745.)
KENNARD, J., Dissenting.—A conspiracy is an agreement by two or more persons to commit a crime. The crime of murder is divided into first degree murder and second degree murder. When two or more persons form a conspiracy to commit a crime divided into degrees, conspiracy law generally provides that conspiracy to commit that crime is also divided into degrees, and that the conspirators are liable for conspiracy to commit a given degree of the crime only if they possess the mental state and intend to commit the acts required by that degree of the crime. Conspiracy law also generally provides that the conspirators’ possible punishment is determined by the degree of the crime whose elements they have intended to commit.
This case poses the question of whether these general principles of conspiracy law hold true for murder conspiracies as well. The majority holds they do not, concluding that there is but a single crime of conspiracy to murder, requiring only the mental state of second degree murder (intent to kill) yet subject to the penalty for first degree murder (which requires as its mental state premeditation and deliberation in addition to intent to kill).
In People v. Swain (1996) 12 Cal.4th 593 [49 Cal.Rptr.2d 390, 909 P.2d 994] (hereafter Swain), I wrote a separate opinion explaining my conclusion that in
In my view, the conclusion that conspiracy to murder is divided into degrees remains the correct one, and accordingly I dissent.
I
Defendant was the driver of a car involved in a gang drive-by shooting. His passenger shot at, but did not kill, members of a rival gang. Defendant was charged with conspiracy to commit murder. The jury was instructed only on the elements of second degree murder. It was never instructed on the additional elements of first degree murder. It was never instructed to determine the degree of murder that defendant conspired to commit. The jury convicted defendant, and he was sentenced to 25 years to life in prison, the punishment prescribed for first degree murder. The Court of Appeal rejected defendant‘s claim that in light of the jury instructions he could be convicted only of conspiracy to commit second degree murder and could receive only 15 years to life in prison, the punishment authorized for second degree murder.
In Swain, supra, 12 Cal.4th 593, I gave this explanation of my conclusion that the Legislature has divided conspiracy to commit murder into degrees with separate punishments for each degree:
”
“The crime of murder is divided into degrees. At the time the murder at issue in this case occurred,
“To understand the debate over whether the current version of
“In Kynette, this court held that the death penalty was a possible punishment for conspiracy to commit murder. (Kynette, supra, 15 Cal.2d at p. 745.) It reasoned that all conspiracies to commit murder were necessarily conspiracies to commit first degree murder. (Ibid.)
“In 1955, 15 years after Kynette, supra, 15 Cal.2d 731, the Legislature changed the punishment language of
“Almost 20 years after the Legislature altered
“As the majority notes, the first two reasons set forth in the Horn decision (supra, 12 Cal.3d 290 [115 Cal.Rptr. 516, 524 P.2d 1300]) supporting the division of murder conspiracies into degrees—the existence of the diminished capacity defense and the ‘mature and meaningful reflection requirement‘—are no longer the law. (Maj. opn., ante, at p. 608.) There remains, however, the punishment language of
“The natural reading of the punishment language of
“When this analysis of
II
The majority rejects this analysis. Instead, it concludes that conspiracy to murder is a unitary crime requiring proof of only intent to kill, the mental state of second degree murder, but subject to the punishment for first degree murder.2 In doing so, it implicitly rejects the well-settled understanding of conspiracy law that this court reaffirmed in Swain, supra, 12 Cal.4th 593.
Conspiracy, as Swain explained, is a dual-intent crime requiring both the intent to agree with one‘s coconspirators to commit the target crime and the intent to commit all the elements of the target crime. (Swain, supra, 12 Cal.4th 593, 600.) In particular, to convict a defendant of conspiracy, the jury must find that during the conspiracy the defendant possessed the mental state required to commit the target crime. Swain itself illustrates this point. There, this court considered whether it was possible to conspire to commit an “implied malice” murder, in which the element of malice is implied by the intent to do an act dangerous to human life that results in a killing, in contrast to express malice murders, in which the element of malice is established by proof of intent to kill. (Id. at p. 601.) Swain rejected the possibility of conspiracy to commit implied-malice second degree murder because in cases of implied malice the element of malice never exists in advance of the completed crime; to recognize such a conspiracy would permit the conviction for conspiracy to murder of a defendant who
Another fundamental feature of conspiracy law is that the punishment for conspiracy to commit the target crime is the same as that for the target crime. (See
“shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit.“].) In combination with the principles of conspiracy law mentioned in the preceding paragraph, this means that before a conspirator may receive the punishment designated for a given degree of the target crime the jury must find the conspirator possessed the mental state required by that degree of the target crime.
Here, the majority dispenses with that requirement. Under the majority‘s approach, every murder conspiracy will be punished as first degree murder even though the jury will have found only the mental state of second degree murder—intent to kill. The majority obscures this point by referring to the crime on which the jury was instructed as “the target offense of murder simpliciter.” (Maj. opn., ante, at p. 1239.) There is, of course, no such crime as murder simpliciter, only first degree murder and second degree murder. What the jury here was instructed on were the elements of second degree murder; what defendant has received as punishment is the punishment for first degree murder.
Thus, under the majority‘s holding, conspiracy agreements to commit only the elements of second degree express-malice murder (e.g., agreements that lack premeditation and deliberation) and conspiracy agreements that reflect the premeditation and deliberation that distinguishes first degree murder would both be subject to the punishment established for first degree murder. As I have noted, this will produce the unjust and illogical result that second degree express-malice murder conspiracies will be punished more severely than the completed crime of second degree murder.
The majority seeks to justify its departure from the established rules of conspiracy law by asserting that every “conspiracy to commit murder is necessarily [a] conspiracy to commit premeditated . . . first degree murder.” (Maj. opn., ante, at p. 1238.) If the majority means that premeditation and deliberation are elements of conspiracy to commit murder but the jury is excused from finding those elements because their existence is presumed as a matter of law, then it has unconstitutionally removed those elements from the jury‘s consideration. (See People v. Flood (1998) 18 Cal.4th 470, 548 [76 Cal.Rptr.2d 180, 957 P.2d 869] (dis. opn. of Kennard, J.); Sandstrom v. Montana (1979) 442 U.S. 510, 523-524 [99 S.Ct. 2450, 2458-2459, 61 L.Ed.2d 39].) If the majority means instead that premeditation and deliberation, although elements of first degree murder, are not elements of conspiracy to commit murder, then its further holding that all murder conspirators should receive the punishment for first degree murder violates the fundamental principle of
Nor is the majority correct that as a factual matter it is impossible for two or more persons to conspire without deliberation and premeditation. By creating the separate crimes of (1) first degree murder for killings in which the killer acts not only with the intent to kill but with premeditation and deliberation, and (2) second degree murder for killings in which the killer acts with the intent to kill but without premeditation and
Conspiracies do not require formal expressions of agreement or advance planning. For example, with a shout of “let‘s get him,” two friends who have been drinking all night in a bar can, without premeditation and deliberation, impulsively form and share the intent to kill when their sworn enemy walks in. Similarly, a sudden and unexpected encounter on disputed turf between groups from two different gangs can similarly lead to a spontaneous and unreflective agreement to kill. Juries are capable of distinguishing between first degree murder conspiracies requiring premeditation and deliberation and second degree murder conspiracies requiring only intent to kill.3 For this reason, the federal courts recognize murder conspiracies of varying degrees. (U.S. v. Croft (9th Cir. 1997) 124 F.3d 1109, 1122-1123 [holding that federal law recognizes conspiracy to commit second degree murder when conspirators act with intent to kill but without premeditation and deliberation]; United States v. Chagra (5th Cir. 1986) 807 F.2d 398, 400-402 [same].) Indeed, if the majority in this case truly believes that all murder conspiracies are premeditated and deliberate, it would have little reason to oppose instructing the jury that it must find premeditation and deliberation.
In addition, as I have explained above, the majority‘s position is contrary to the ordinary meaning of
justify this departure by suggesting that to follow section 182‘s plain language punishing murder conspiracies of undetermined degree the same as first degree murders would create an “illogical” “anomaly” (maj. opn., ante, at p. 1237) in the general rule that conspiracies of undetermined degree are subject only to the punishment prescribed for the lowest degree of the target crime. (See
Moreover, there is a logical reason why the Legislature would provide that, when the trier of fact fails to determine the degree of the crime, murder conspiracies are punished in the first degree while conspiracies to commit all other crimes are punished in the lesser degree. Deliberate and premeditated murders are murders of the first degree. As this court recognized in People v. Kynette, in the typical murder conspiracy the conspirators will act with premeditation and deliberation in forming an agreement to commit the crime. (People v. Kynette (1940) 15 Cal.2d 731, 745 [104 P.2d 794].) Punishing murder conspiracies of unspecified degree as first degree murder conspiracies simply accords with the statistical reality that the vast majority
The deliberate and premeditated nature of most conspiracies, however, does not similarly increase the likelihood that conspiracies to commit crimes other than murder will be first degree conspiracies. Unlike murder, other crimes of degree do not become first degree crimes by being premeditated and deliberate; as to those crimes, the degree of the crime typically turns on the nature of the defendant‘s acts rather than the defendant‘s mental state. For example, the degree of a robbery or burglary can vary depending on the location where the crime occurs. (
CONCLUSION
In holding that, unlike conspiracy to commit any other target crime that is divided into degrees, conspiracy to murder is a unitary crime requiring only the mental state of second degree murder, yet subject to the punishment for first degree murder, the majority acts contrary to the punishment language of
I would continue to adhere to this court‘s previous recognition that, under
Appellant‘s petition for a rehearing was denied October 14, 1998. Kennard, J., was of the opinion that the petition should be granted.
Notes
“The reason for this structure of conspiracy to murder is readily apparent. If conspiracy to murder were a unitary crime that required only intent to kill, which is the mental state of second degree murder, but was punished as first degree murder, then conspiracies that involve agreements to commit only the elements of second degree murder (e.g., that lack premeditation and deliberation) would be punished more severely than the completed crime of second degree murder.
“There is an additional reason for adhering to Horn‘s conclusion that conspiracy to commit murder is divided by degrees. Horn has been the law for 21 years. During that time, the Legislature has not amended
“Finally, I note that as a factual matter the crime of conspiracy to commit second degree express-malice murder applies only to a narrow range of cases—those in which conspirators formed an agreement to kill but made that agreement without deliberation and premeditation. It seems doubtful that any agreement persisting beyond more than the briefest duration would lack deliberation and premeditation, for inevitably the passage of time alone would cause the agreement to become deliberate and premeditated.” (Swain, supra, 12 Cal.4th at pp. 622-625 (conc. opn. of Kennard, J.).)
Because the statutory framework governing conspiracy to commit murder has not changed since the time of Swain, supra, 12 Cal.4th 593, I adhere to my conclusion there that conspiracy to commit murder is divided into degrees.
primarily to penetrate metal or armor, poison, lying in wait, [or] torture.’ (Ibid.) Moreover, as a practical matter, a conspiracy to kill by one of these methods almost inevitably will involve deliberation and premeditation. Because it is not at issue in this case, I do not address whether conspiracy to commit first degree murder is a possible crime in cases in which the first degree murder theory would be felony murder, rather than deliberation and premeditation. Presumably, if it is possible for a defendant to be convicted of conspiracy to commit first degree murder on a felony-murder theory, under today‘s holding the prosecution would have to prove intent to kill, even though it is not an element of first degree felony murder.
Justice Kennard, in a separate concurring opinion, likewise indicating she would have reached and decided the issue in Swain, went on to set forth the reasons for her conclusion that “conspiracy to commit first degree murder and conspiracy to commit second degree murder are separate crimes distinguished by whether the intent to kill reflected in the conspirators’ agreement is deliberate and premeditated or not,” and that “under the Penal Code, each type of conspiracy to murder is subject to the punishment prescribed for the corresponding degree of murder.” (12 Cal.4th at p. 621 (conc. opn. of Kennard, J.); see id. at pp. 622-628.) Justice Kennard‘s dissent in the present case largely reiterates the rationale of her dissent in Swain. (See dis. opn. of Kennard, J., post, at pp. 1242-1246, and passim.)
The majority contends that it does no such thing but that it “merely recogniz[es] that the mental state required for conviction of conspiracy to commit express malice murder necessarily equates with and establishes the mental state of deliberate and premeditated first degree murder.” (Maj. opn., ante, at p. 1232, fn. 3.) Despite its protestations, however, the majority nevertheless refuses to require the jury to find the existence of the elemental facts of premeditation and deliberation, as a jury must find before convicting a defendant of first degree murder. Instead, it holds that intent to kill (the mental state of second degree murder) is the only mental state the jury need find to convict the defendant of conspiracy to murder, the punishment for which is that of first degree murder. Judicial presumption of premeditation and deliberation, however, is no substitute for jury fact-finding on those issues.Justice Kennard took this position in her separate concurring opinion in Swain, supra, 12 Cal.4th at page 624 (conc. opn. of Kennard, J.), and incorporates it in her dissent in this case. (Dis. opn. of Kennard, J., post, at p. 1249.)
II.
Our order granting review additionally asked the parties to address the related question of whether the trial court below erred in failing to instruct the jury on premeditation and deliberation with regard to the conspiracy count. Given our conclusion that conspiracy to commit murder is a unitary offense punishable in every instance with the penalty prescribed for first degree murder, it follows logically that there was no occasion or requirement for the jury to determine the “degree” of the underlying target offense of murder, and thus no need for specific instruction on premeditation and deliberation respecting the conspiracy count. Our conclusion in this case—that a jury‘s finding of the dual specific intent required for conviction of conspiracy to murder necessarily establishes that the target offense of murder was premeditated and deliberated, and that the Legislature in
Although the jury was properly not asked to determine the degree of the target murder (or, for that matter, whether the target offense was actually
determine the degree of the crime, murder conspiracies are punished in the first degree while conspiracies to commit all other crimes are punished in the lesser degree. Deliberate and premeditated murders are murders of the first degree. As Kynette recognized, in the typical murder conspiracy the conspirators will act with premeditation and deliberation in forming an agreement to commit the crime. (Kynette, supra, 15 Cal.2d at p. 745.) Punishing murder conspiracies of unspecified degree as first degree murder conspiracies simply accords with the statistical reality that the vast majority of murder conspiracies will involve premeditation and deliberation.” (Swain, supra, 12 Cal.4th at p. 627 (conc. opn. of Kennard, J.).) Once again, Justice Kennard reiterates this point in her dissent in the instant case. (Dis. opn. of Kennard, J., post, at p. 1250.)
Justice Kennard also acknowledged that even under her interpretation of