People v. Swain

12 Cal. 4th 593, 49 Cal. Rptr. 2d 390, 909 P.2d 994 (1996)



Conspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, the object of the conspiracy. 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.


Defendants were convicted of conspiracy to commit murder after they participated in a drive-by shooting. Defendants contended that the trial court improperly instructed the jury on an implied malice theory. Defendants alleged that the trial court should have advised the jury that the state had to prove that defendants intended to kill the victim in order to convict them. The appellate court affirmed defendants' convictions. The case was appealed to the Supreme Court of California.


Was the conviction proper?




The court held that the convictions must be reversed because intent to kill was a required element of conspiracy to commit murder. Conspiracy to commit murder could not be based on a theory of implied malice because such offense could not be committed without intent to kill. An agreement to murder necessarily involved the deliberate and premeditated intention to kill. The trial court's improper jury instruction prejudiced defendants because the jury could have reasonably concluded that they could convict defendants without finding a specific intent to kill.

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