Conspiracy Instruction Update

(August 1995)

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to:http://jamespublishing.com/books/fc.htm

    Like aiding and abetting, conspiracy is a theory of vicarious liability which can have a devastating impact on a person who is only tangentially involved in the crime. Therefore in this "Jury Instruction Corner" we are providing several examples, taken from FORECITE, of how the current CALJIC conspiracy instruction could be supplemented or modified.

F 6.10e Conspiracy: Specification Of Elements, Intent And Knowledge

*Modify ¶ 2 of CJ 6.10 as follows [added language is capitalized; deleted language is lined out]: 

    In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the overt acts alleged in the [indictment] [information]. IN ORDER TO PROVE THE DEFENDANT GUILTY OF CONSPIRACY, EACH OF THE FOLLOWING ELEMENTS MUST BE PROVEN BEYOND A REASONABLE DOUBT.

    1. THE DEFENDANT AND ONE OR MORE OTHER PERSONS ENTERED INTO AN AGREEMENT TO COMMIT THE CRIME OF __________;

    2. THE DEFENDANT AND OTHER [PARTY] [PARTIES] TO THE AGREEMENT EACH HAD THE SPECIFIC INTENT TO AGREE TO COMMIT THE CRIME OF __________;

    3. THE DEFENDANT AND OTHER [PARTY] [PARTIES] TO THE AGREEMENT EACH HAD THE SPECIFIC INTENT TO COMMIT THE CRIME OF __________;

    4. THE DEFENDANT AND OTHER [PARTY] [PARTIES] EACH HAD ACTUAL KNOWLEDGE OF THE EXISTENCE OF THE AGREEMENT AND THE FULL SCOPE, DESIGN AND PURPOSE OF THE AGREEMENT; AND

    5. AT LEAST ONE OVERT ACT WAS COMMITTED BY A PARTY TO THE AGREEMENT AFTER THE DEFENDANT ENTERED THE AGREEMENT BUT BEFORE THE OFFENSE OF __________ WAS COMPLETED. It is not necessary to the guilt of any particular defendant that defendant personally committed the overt act, if [he] [she] was one of the conspirators when such an act was committed.

Points and Authorities

    Unlike most other standard CALJIC instructions which define the elements of an offense, CJ 6.10 fails to include an enumeration of the elements of the charge other than the introductory first paragraph. Therefore, to assure that the jurors are cognizant of each element, an enumeration of elements similar to that used in other CALJIC instructions should be added to CJ 6.10.

    Nowhere in CJ 6.10 is the jury explicitly informed that the defendant must harbor the requisite specific intent. While this requirement may be implicitly understood by the jury in some cases, in other cases -- especially where it is alleged that the defendant joined the conspiracy after its formation -- there is a danger that the jury could conclude that the defendant joined the conspiracy without personally forming the necessary specific intent. This is especially true in a conspiracy prosecution where "a weak case against one defendant will be strengthened by a mass of evidence relevant only to his co-defendants." (Castro v. Superior Court (70) 9 CA3d 675, 692 [88 CR 500]; see also People v. Fulton (84) 155 CA3d 91, 101 [201 CR 879] [recognizing the potential for unfairness inherent in a conspiracy charge].) CJ 6.22, which requires that the conspiracy charge must be resolved as to "each defendant," provides some protection, but it is normally only given in multiple defendant cases. Moreover, the most appropriate place to set forth the requirement that the defendant must form a specific intent is in the specification of the elements of the charge.

    With the exception of CJ 6.22, no CALJIC instruction makes any reference to knowledge as an element of conspiracy. While some requirement of knowledge may be implicit in the specific intent element, the state and federal constitutional rights to trial by jury and due process require that the jury be expressly instructed on all elements of the charge. (See FORECITE PG VIII(C).) Knowledge is an essential element of conspiracy because "[t]he moral quality of an intent may be determined by knowledge, or lack of knowledge, of pertinent facts." (Perkins, Criminal Law (3d ed. 1982), Ch 6, § 5, Conspiracy, p. 697.) Hence, "one does not have the specific intent to bring about an unlawful result, and hence is not guilty of conspiracy, if he does not know or have reason to know the facts which make that result unlawful." (Ibid.) Accordingly, the defendant must have actual knowledge of the existence of the conspiracy. (U.S. v. Falcone (40) 311 US 205, 210-11 [85 LEd 128; 61 SCt 204].) Moreover, "[k]nowledge of the objective of the conspiracy is an essential element of any conspiracy conviction." (U.S. v. Krasovich(9th Cir. 1987) 819 F2d 253, 255; see also, De Vries v. Brumback (60) 53 C2d 643, 648 [2 CR 764] [conspiracy conviction embodies jury finding the defendant acted with "full knowledge of [the conspiracy's] scope and design."

    The requirement that at least one overt act be committed by a party to the agreement after the defendant entered the agreement is taken from CJ 6.10. This requirement stems from the principle that the defendant cannot be held liable for acts of the other conspirators committed before the defendant joined the conspiracy. (See People v. Van Houten (80) 113 CA3d 280, 288 [170 CR 189].) Additionally, the overt act requirement of PC 184 is intended to provide "an opportunity for the conspirators to reconsider, terminate the agreement, and thereby avoid punishment for the conspiracy. [Citation.]" (People v. Zamora (76) 18 C3d 538, 549, fn 8 [134 CR 784].) Obviously, this purpose would be frustrated if the defendant could be held liable based on an overt act committed before he or she joined the conspiracy.

    The requirement that the overt act be committed before completion of the intended offense is a well-settled principle. (See Zamora, 18 C3d 560; People v. Brown (91) 226 CA3d 1361, 1369 [277 CR 309].)

F 6.10f Conspiracy: Efforts To Conceal Do Not Extend The Duration Of The Conspiracy And Are Not Overt Acts.

*Add to CJ 6.10:

    Efforts to conceal the offense after it has been committed do not extend the duration of the conspiracy. Nor are such efforts overt acts in furtherance of the conspiracy [even if they were part of the original unlawful agreement].

Points and Authorities

(People v. Zamora (76) 18 C3d 538, 556-60 [134 CR 784]; People v. Brown (91) 226 CA3d 1361, 1367-69 [277 CR 309].)

F 6.10g Conspiracy: Approval Or Acquiescence In The Object And Purpose Does Not Prove Membership In Conspiracy.

*Add to CJ 6.10:

Points and Authorities

(U.S. v. Hopkins (10th Cir. 1984) 716 F2d 739, 748, on rehearing, 744 F2d 716; see also People v. Horn (74) 12 C3d 290, 296 [115 CR 516] [conspiracy requires specific intent to agree or conspire].)

F 6.12a Conspiracy: Nature Of Agreement -- "Jointly Conceived Plan"

*Add to CJ 6.12:

            However, it is necessary to prove that the agreement included a jointly conceived plan to commit the intended crime.

Points and Authorities

(1 Witkin, Calif. Crim. Law (2d ed. 1988) § 163(b), p. 181-82; People v. Butts (65) 236 CA2d 817, 831 [46 CR 362].)

F 6.13a Conspiracy: Knowing Association Insufficient

*Add to CJ 6.13:

    This is true even if the defendant knew of the existence of the conspiracy during [his] [her] association with said person[s]. You may not find that defendant committed the crime of conspiracy unless all the required elements, upon which I have previously instructed you, have been proven beyond a reasonable doubt.

Points and Authorities

    Conspiracy requires a specific intent to agree or conspire and the specific intent to commit the offense which is the object of the conspiracy. (People v. Horn (74) 12 C3d 290, 296 [115 CR 516].) Hence, even knowing association with a conspirator is not sufficient to convict the defendant of conspiracy. For example, in ^U.S. v. Vaandering (9th Cir. 1995) 50 F3d 696, 702, the following instruction was held to be correct: "... a person does not become a member [of the conspiracy] merely by associating with one or more person who are conspirators, nor merely by knowing of the existence of a conspiracy."

F 6.13b Conspiracy Must Be Based On Acts and Statements Of The Defendant

*Add to CJ 6.13:

    In determining whether the alleged conspiracy existed, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of all the alleged participants. However, in determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant.

Points and Authorities

(Federal Criminal Jury Instructions Of The 7th Circuit(1980) Inst No. 5.11; see also, U.S. v. Rawwad (1st Cir. 1986) 807 F2d 294, 296; U.S. v. Monteiro (1st Cir. 1989) 871 F2d 204, 208.)

F 6.14a Adoption Of Criminal Design And Intent Requires Defendant To Actually Form The Requisite Specific Intent

*Add to CJ 6.14:

    However, you may not find that the defendant adopted the design, intent, objective and purpose of the conspiracy unless [he] [she] personally:

    1. Had the specific intent to agree with at least one other conspirator to commit the offense of __________.

    2. Had the specific intent to commit the offense of __________.

    3. Had actual knowledge of the existence of the agreement and the full scope and design of the agreement.

Points and Authorities

    To be guilty of conspiracy, the defendant must personally form the requisite specific intent. (See People v. Horn (74) 12 C3d 290, 296 [115 CR 516]; see also FORECITE F 6.10a.) CJ 6.14 does not make this clear because it states that adoption of the criminal design, intent, object and purposes "is all that is necessary to make the person a co-conspirator when the required elements of a conspiracy are present." Accordingly, the above proposed instruction should be added to CJ 6.14 to assure that the jury understands that the defendant must personally form the requisite specific intent.

F 6.18a Knowing Commission Of Act In Furtherance Of Conspiracy Does Not Prove Membership In Conspiracy

*Add to CJ 6.18:

    This is true even if the person committing the act knew of the existence of the conspiracy at the time the act was committed. You may not find the defendant committed the crime of conspiracy unless all of the required elements, upon which I have previously instructed you, have been proven beyond a reasonable doubt.

Points and Authorities

    Even if the defendant knowingly and voluntarily commits an act which furthers the purpose of a conspiracy, the defendant is not guilty of conspiracy absent a specific intent to enter into an agreement with the other conspirators and a specific intent to commit the crime which is the object of the conspiracy. (People v. Horn (74) 12 C3d 290, 296 [115 CR 516]; see also, U.S. v. Falcone (40) 311 US 205, 210-11 [85 LEd 128; 61 SCt 204].) Hence, CJ 6.18 should be clarified to make this point clear to the jury.

F 6.19a Joining Conspiracy After Its Formation: Requisite Elements

*Add to CJ 6.19:

    You may not find that the defendant joined the conspiracy unless all of the following have been proven beyond a reasonable doubt:

    1. Two or more persons other than the defendant entered into an agreement to commit the crime of __________.

    2. The defendant subsequently joined in the agreement with the specific intent to agree with one or more of the original parties to the agreement to commit the crime of __________.

    3. When the defendant joined in the agreement, [he] [she] had the specific intent to commit the crime of __________.

    4. When the defendant joined in the agreement, [he] [she] and the original parties to the agreement each had actual knowledge of the existence of the agreement and the full scope, design and purpose of the agreement.

    5. At least one overt act was committed by a party to the agreement after the defendant entered the agreement but before the offense of __________ was completed. It is not necessary to the guilt of any particular defendant that defendant personally committed the overt act, if [he] [she] was one of the conspirators when such an act was committed.

Points and Authorities

    CJ 6.19 concerns the jury of the criminal liability of a person who joins a conspiracy after it has been formed. However, the instruction does not specify what requirements must be proved to establish that the defendant joined the conspiracy. For example, CJ 6.10 fails to require that the person who joins the conspiracy form the necessary specific intent. CJ 6.19 should be supplemented to include a specification of the requisite elements. (See FORECITE F 6.10a.)

F 6.22a Consider Conspiracy Case As To Each Defendant: Specification Of Elements

*Add to CJ 6.22:

    You may not find that the defendant willfully, intentionally and knowingly joined the conspiracy unless the prosecution has proven the existence of all the elements of conspiracy, upon which I have previously instructed you, beyond a reasonable doubt.

Points and Authorities

    CJ 6.22 -- which is intended to be used only in multiple defendant cases tried before a single jury (see People v. Von Villas (92) 11 CA4th 175, 245-46 [15 CR2d 112]) -- informs the jury that they must consider whether the defendant "willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy." This language could be interpreted by the jury to eliminate the need of finding that the defendant personally formed the requisite specific intent for a conspiracy, as well as the other requisite elements of conspiracy. Therefore, CJ 6.22 should be supplemented to either refer back to the specific requisite elements of conspiracy or to specifically enumerate those elements.

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