Cortez

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 Penal Code section 182.

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…

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 *1241 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…

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 *1242 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…

BAXTER, Justice.

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, 49 Cal. Rptr.2d 390 , 909 P.2d 994 .) 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, 49 Cal.Rptr.2d 390 , 909 P.2d 994 .) 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, 49 Cal. Rptr.2d 390 , 909 P.2d 994 ) and is therefore punishable in the same manner as first degree murder pursuant to the provisions of Penal Code section 182.

Our order granting review additionally asked the parties to address the related question of whether the trial…