Dissenting:

Thomas Kleve was convicted in 1989 of conspiracy to commit second degree murder. Nine years later the California Supreme Court explained that, at the time of his conviction, there was no such crime under California law. See People v. Cortez, 18 Cal.4th 1223 , 77 Cal.Rptr.2d 733 , 960 P.2d 537 (1998). It is now twelve years after he was convicted and Kleve remains in jail for a crime that does not exist. How is this possible? Because, according to the majority, Kleve was convicted of the “functional equivalent” of conspiracy to commit first degree murder— the very crime of which the jury acquitted him. Faced with a not guilty verdict on the conspiracy to commit first degree murder charge, the majority fails to consider that acquittal and refashions the guilty verdict for a crime that does not exist into a conviction for an offense we know the jury believed was not proven beyond a reasonable doubt. No other court has reverse engineered a conviction in this manner. The majority’s holding cannot be squared with precedent, due process, or common sense. Therefore, I respectfully dissent.

It is only natural that the Supreme Court granted certiorari, vacated our decision denying Kleve’s habeas petition, and remanded for reconsideration in light of Fiore v. White, 531 U.S. 225 , 121 S.Ct. 712 , 148 L.Ed.2d 629 (2001), because Fiore supports the obvious conclusion that Kleve’s continued incarceration for a crime that does not exist violates due process. See Kleve v. Hill, — U.S. —, 121 S.Ct. 851 , 148 L.Ed.2d 766 (2001). Fiore held that where a state supreme court clarifies state law, due process prevents a defendant from being convicted “for conduct that its criminal statute, as properly interpreted, does not prohibit.” Id. at 714. The majority’s attempt to distinguish this case from Fiore is unconvincing. Kleve was convicted for conduct that California law, as properly interpreted, does not prohibit. Therefore, his continued incarceration violates due process.

Kleve was originally charged with conspiracy to commit first degree murder and two misdemeanor counts. The jury could not reach a verdict on the conspiracy charge and a new trial was ordered. During the second trial, the judge instructed the jury that it could find Kleve guilty of either conspiracy to commit first degree murder or conspiracy to commit second degree murder. First degree murder, they were told, requires a showing of intent to kill with premeditation and deliberation whereas second degree murder requires only intent to kill. 1 The jury acquitted Kleve of conspiracy to eom- *1153 mit first degree murder, but convicted him of conspiracy to commit second degree murder. The only explanation for these verdicts is that the prosecution failed to prove premeditation and deliberation beyond a reasonable doubt.

While Kleve’s federal habeas petition was pending, the California Supreme Court held there is no crime of conspiracy to commit second degree murder under California law. See Cortez, 18 Cal.4th at 1232 n. 3, 1237-38, 77 Cal.Rptr.2d 733 , 960 P.2d 537 . In Cortez , the defendant was charged with murder and conspiracy to commit murder. The jury was not instructed that conspiracy to commit murder was divisible into degrees. Id. at 1226 , 77 Cal.Rptr.2d 733 , 960 P.2d 537 . The court held that the trial court did not err in failing to require the jury to determine the degree of the murder alleged as the target offense of the conspiracy. And there was no error in omitting premeditation from the conspiracy to commit murder instruction because premeditation could be inferred from the jury’s finding that the defendant intended to conspire and intended to commit the target crime of murder. Id. at 1238 , 77 Cal.Rptr.2d 733 , 960 P.2d 537 .

Cortez did not establish, as the majority seems to assume, that premeditation is irrelevant to a conviction for conspiracy to commit murder. In fact, the court stated explicitly that it was not holding intent to kill is the only requirement for conspiracy to commit murder. In response to Justice Kennard’s dissent, the Cortez court explained that the dissent

Id. at 1232 n. 3, 77 Cal.Rptr.2d 733 , 960 P.2d 537 . In other words, intent and premeditation are separate concepts; one can be inferred from the other, as the court did in Cortez , but they are not the same. While Cortez recognized that in most cases proof of intent supports an inference of premeditation, that inference is not supported where there is already a jury finding of no premeditation.

In this case, the jury was asked about premeditation and deliberation and found that it was lacking. The jury’s verdict, therefore, undermines any inference that intent equates with premeditation. The majority seems to argue that we need not worry about the prosecution’s failure to prove premeditation and deliberation beyond a reasonable doubt because the jury found Kleve guilty of conspiracy to commit murder. But we cannot stop there without also considering the jury’s finding of no premeditation. Kleve was acquitted by a jury of the only lawful charge brought against him. He may not be held liable on that same charge by using a conviction for a non-existent offense to override the verdict of acquittal. We have already held that a conviction based on a “theory of culpability that did not exist” violates due process. See Suniga v. Bunnell, 998 F.2d 664, 668 (9th Cir.1993). By the same reasoning, a conviction for conduct that is not in fact a crime cannot be squared with the dictates of due process. See Adams v. Murphy, 653 F.2d 224, 225 (5th Cir.1981) (reversing defendant’s conviction for attempted perjury after Florida Supreme *1154 Court explained that there was no such offense under Florida law because “[n]o-where in this country can any man be condemned for a nonexistent crime”).

The majority dismisses this concern by invoking United States v. Powell, 469 U.S. 57 , 105 S.Ct. 471 , 83 L.Ed.2d 461 (1984). Powell held that inconsistent jury verdicts do not warrant reversal because the inconsistency could just as easily stem from the jury’s desire to exercise mercy by ignoring the judge’s instruction as from a desire to punish the defendant. Id. at 65 , 105 S.Ct. 471 . The problem with the majority’s analysis, however, is that the verdicts in Kleve’s trial were perfectly consistent under the instructions as given; Powell is inapposite. The jury found insufficient evidence of premeditation and acquitted Kleve of conspiracy to commit first degree murder as a result, but convicted him of the lesser offense of conspiracy to commit second degree murder because premeditation was not an element of that offense. As I explained in my original dissent, “Rather than the petitioner attempting to use the jury’s acquittal on one charge to invalidate the conviction on another, here the majority uses Kleve’s conviction on one charge to invalidate the acquittal on another charge.” 185 F.3d at 1015 n. 2.

. The trial court instructed the jury that every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder; that murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree; and that murder of the second degree is the unlawful killing of a human being where there is malice aforethought, but the evidence is insufficient to establish deliberation and premeditation. The trial court further instructed the jury that, if they should find the *1153 defendant guilty of conspiracy to commit the target crime of murder, they must state in their verdict whether they found the murder to be of the first degree or the second degree; and that, if they were convinced beyond a reasonable doubt that the target crime of murder was contemplated by the defendant, but had a reasonable doubt whether such murder was of the first or second degree, they must give the defendant the benefit of that doubt and return a verdict of second degree murder. See Trial Transcript at 362-65.