PEOPLE v. SANTIBANEZ

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Jason Vernon SANTIBANEZ, Defendant and Appellant.

No. C020431.

Decided: October 10, 1996

David McNeil Morse, under assignment by the Court of Appeal, San Francisco, for Defendant and Respondent. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Attorney General, W. Scott Thorpe, Supervising Deputy Attorney General, David A. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.

Dictum in People v. Horn (1974) 12 Cal.3d 290, 299, 115 Cal.Rptr. 516, 524 P.2d 1300, posits, counterintuitively, the existence of the crime of conspiracy to commit second degree murder.   We hold there is no such crime because a conspiracy to murder necessarily entails express malice, premeditation and deliberation.1

A jury convicted defendant Jason Vernon Santibanez of conspiracy to commit murder (Pen.Code, §§ 182, 187—count I), attempted murder (Pen.Code, §§ 664, 187—count ii) And robbery (peN.coDe, § 211—count iiI;  All further statutory references to sections of an undesignated code are to the Penal Code).   The jury found that in committing the offenses charged in counts II and III defendant intentionally inflicted great bodily injury on the victim (§ 12022.7) and that the attempted murder was committed with premeditation and deliberation.

Defendant was sentenced to state prison for 25 years to life for conspiracy to murder.   Sentences and enhancements imposed for attempted murder and robbery were stayed pursuant to section 654.

In the published portion of this opinion, we reject defendant's contention the trial court erred in failing to instruct, sua sponte, on conspiracy to commit second degree murder as an included offense.   In the unpublished portion of this opinion, we agree with defendant that the trial court erred in imposing a $15,000 restitution fine (Gov.Code, § 13967, subd. (a)) but reject defendant's remaining claims of prejudicial error.   Accordingly, we shall modify the judgment to reduce the fine to the statutory maximum of $10,000 and, as modified, affirm.

During the evening of January 29, 1994, defendant was at his home in Marysville with two 15–year–old friends, Jamaal and Delilah.   Jamaal went to a nearby liquor store but was not permitted to enter by the clerk, Kulwinder Sharma, because the store had just closed.   Displeased, Jamaal returned to defendant's home where he complained to defendant and Delilah about the clerk's refusal to admit him to the store.   The three discussed robbing and killing the clerk.   Although defendant initially balked at the idea, he eventually agreed and the trio walked to the store.

Sharma was taking out the garbage.   He saw defendant, Jamaal and Delilah approaching.   Defendant pointed a gun at Sharma and ordered him to return to the store.   Sharma complied, followed by defendant and his accomplices.   Inside the store, defendant placed the gun to Sharma's head and demanded money.   When Sharma insisted he had no money, defendant increased the pressure of the gun against Sharma's temple.   Sharma was watching defendant's finger on the trigger.   He pulled away just as defendant fired the gun.   The bullet struck a cigarette display barely missing Sharma.

Defendant re-cocked the gun and told Sharma, “You are lucky, just tell me where the money is at.”   Sharma replied that the money was in the back, and defendant told Jamaal to get it.   Defendant placed the gun against Sharma's chest and repeatedly demanded money.   When defendant began to push the gun “very hard,” Sharma put his hand up to his chest and defendant fired.   The bullet struck Sharma in the arm.   Just then a vehicle drove up and all three robbers fled but not before Jamaal stole a carton of cigarettes and Delilah stole some candy.

The trial court instructed the jury on conspiracy, murder and express malice and informed the jury, presciently, that there are no lesser offenses included in conspiracy to murder.2

I

 Defendant contends conspiracy to commit murder is divided into degrees and the trial court erred in failing to instruct sua sponte on both first degree and second degree murder as possible objects of the charged conspiracy.   We conclude no such instructions were required.

Murder is the “unlawful killing of a human being ․ with malice aforethought.” (§ 187, subd. (a).)  Malice may be express or implied. (§ 188.)  “It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188.)

 Intent to kill is the functional equivalent of express malice.   (People v. Saille (1991) 54 Cal.3d 1103, 1114, 2 Cal.Rptr.2d 364, 820 P.2d 588.)

“All murder which is perpetrated by means of a destructive device or explosive ․, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, [certain enumerated felonies], or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.   All other kinds of murders are of the second degree.” (§ 189.)

Defendant argues one may be convicted of conspiracy to commit second degree murder where premeditation and deliberation have not been proved.   The Supreme Court suggested as much in People v. Horn (1974) 12 Cal.3d 290, 115 Cal.Rptr. 516, 524 P.2d 1300 (Horn ) in this dictum:  “[I]t can no longer be successfully argued that objective proof that defendants planned a homicide in advance conclusively proves that homicide was a first degree murder.”   (Horn, supra, 12 Cal.3d at p. 299, 115 Cal.Rptr. 516, 524 P.2d 1300.)   Thus, according to the Horn dictum, an intentional agreement to commit murder with the specific intent to kill followed by an overt act in furtherance of that agreement does not necessarily equate with premeditation and deliberation.

 In People v. Swain (1996) 12 Cal.4th 593, 49 Cal.Rptr.2d 390, 909 P.2d 994 (Swain ), the court sends a strong signal that it believes the Horn dictum is wrong.   In Swain, defendant had been convicted of conspiracy to commit second degree murder.   The trial court had instructed on both express and implied malice.   The Supreme Court held it is impossible to conspire to commit second degree murder absent express malice, i.e., an intent to kill.  (Swain, supra, 12 Cal.4th at p. 607, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   Conspiracy requires both an intent to agree and an intent to commit the offense which is the object of the conspiracy.  (Swain, supra, 12 Cal.4th at p. 600, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   Implied malice is logically inconsistent with an intent to complete the target offense, i.e., to kill.   (Swain, supra, 12 Cal.4th at p. 603, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   Since the jury returned a general verdict, the court was unable to discern whether the conspiracy conviction was based on express or implied malice.   Accordingly the court reversed the conspiracy conviction.

Although not necessary to its decision, the Swain court addressed the question “whether there exists a viable offense of conspiracy to commit express malice ‘second degree’ murder.”  (Swain, supra, 12 Cal.4th at p. 608, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   The court explained that the Horn dictum no longer provides a principled basis for distinguishing the mental states necessary for conspiracy to commit murder from those necessary for premeditated first degree murder.  (Swain, supra, 12 Cal.4th at p. 608, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   At the time Horn was decided, “premeditation” required a showing the defendant “ ‘maturely and meaningfully reflect[ed] upon the gravity of his contemplated act.’ ”  (Horn, supra, 12 Cal.3d at p. 298, 115 Cal.Rptr. 516, 524 P.2d 1300, quoting People v. Wolff (1964) 61 Cal.2d 795, 821, 40 Cal.Rptr. 271, 394 P.2d 959.)   Section 189 has since been amended to read:  “To prove the killing was ‘deliberate and premeditated,’ it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.”   Furthermore, Horn involved application of a diminished capacity defense to the mental states necessary for murder, a defense which has since been abrogated by statute.  (Swain, supra, 12 Cal.4th at p. 608, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

The Swain court was careful to point out that the discussion in Horn regarding conspiracy to commit second degree express malice murder is dictum.   Proof of premeditation and deliberation was unnecessary in Horn because the charged conspiracy was to kill by means of a bomb and section 189, as it read at that time, provided that “all murder which is perpetrated by means of a bomb ․” is murder of the first degree.  (Horn, supra, at pp. 299–300, 115 Cal.Rptr. 516, 524 P.2d 1300.)

Much of the confusion engendered by Horn comes from its interpretation of section 182.   That section establishes the punishment for conspiracy:  “When [two or more persons] conspire to commit any other felony, they 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.   If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.”  (Italics added.)

According to the Horn court, section 182 “plainly authorizes the trier of fact to return a verdict finding conspiracy to commit murder in the second degree” but has this paradoxical effect:  “Only if the trier of fact fails to determine the degree is a conspiracy to commit murder punished as one to commit first degree murder.”  (Horn, supra, 12 Cal.3d at p. 298, fn. 5, 115 Cal.Rptr. 516, 524 P.2d 1300, italics in original.)

In Swain, the court reexamined section 182 in its historic context.   Section 182 was amended to its present form in 1955.   Prior to that time section 182 provided simply that conspirators to commit a felony “shall be punishable in the same manner and to the same extent as ․ provided for the punishment of the commission of the said felony.”   In People v. Kynette (1940) 15 Cal.2d 731, 104 P.2d 794, the court stated that “[A] conspiracy to commit murder can only be a conspiracy to commit murder of the first degree․”  (15 Cal.2d at p. 745, 104 P.2d 794.)   The Swain court suggests the 1955 amendment to section 182 was added “for the very purpose of effectuating” the principle propounded in Kynette “by expressly providing that all conspiracy to commit murder is conspiracy to commit murder in the first degree, and that hence all such conspiracies should be punished as first degree murders, with no consequent requirement that the jury further determine the degree of the target offense of murder.”  (Swain, supra, 12 Cal.4th at p. 609, 49 Cal.Rptr.2d 390, 909 P.2d 994, italics in original.)

It is enough to say the Swain court's recent rendering of section 182, even though dictum, carries more weight than the hoary Horn dictum.   Moreover, the Swain interpretation is the more reasonable.   Under section 182, it is for the trier of fact to determine the degree of the target offense.   If the trier of fact fails to do so, section 182 provides that the punishment shall be that prescribed for the lesser degree of the target felony.   If, however, the Horn interpretation of section 182 is correct, the failure of the trier of fact to determine that the target offense is of the lesser degree creates the anomaly that defendant receives the greater punishment prescribed for first degree murder.

 In matters of statutory construction our fundamental concern is legislative intent.  (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.)   Such intent must normally be taken from the language of the statute except when to do so would lead to absurd results which obviously were not intended.  (People v. Pieters (1991) 52 Cal.3d 894, 898, 276 Cal.Rptr. 918, 802 P.2d 420.)   In our view, section 182, reasonably interpreted, is simply a recognition that the target offense of conspiracy to commit murder is necessarily murder of the first degree.

 Inasmuch as the Horn court was not presented with the question whether there can be a crime of conspiracy to commit second degree express malice murder, its discussion of that issue is dictum and not binding on this court.  (Swain, supra, 12 Cal.4th at p. 610, 49 Cal.Rptr.2d 390, 909 P.2d 994.)  “It is the general rule the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.”  (Swain, supra, 12 Cal.4th at p. 610, 49 Cal.Rptr.2d 390, 909 P.2d 994, internal quotation marks and citations omitted.)

 “ ‘[P]remeditated’ simply means ‘ “considered beforehand.” ’   [Citation.]”  (People v. Stanley (1995) 10 Cal.4th 764, 795, 42 Cal.Rptr.2d 543, 897 P.2d 481.)   The Swain court pointedly observed:  “[C]onspiring to murder with the requisite intent to kill is arguably functionally indistinguishable from the mental state of premeditating the target offense of murder.”  (Swain, supra, 12 Cal.4th at pp. 608–609, 49 Cal.Rptr.2d 390, 909 P.2d 994, italics added.)   Unlike the Swain court, we are squarely presented with that very issue and therefore it is not given to us to temporize.   We believe the Swain court's pointed observation is not only arguably valid—it is indisputable.   A conspiracy to commit murder is unavoidably a conspiracy to commit first degree murder “for the obvious reason that the agreement to murder necessarily involves the ‘willful, deliberate and premeditated’ intention to kill a human being.”  (People v. Kynette, supra, 15 Cal.2d 731, 745, 104 P.2d 794.)   Hence, there can be no offense of conspiracy to commit second degree murder and the trial court did not err in failing to instruct on that theory.

II–IV*

The judgment is modified to reduce the restitution fine to $10,000.   The superior court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a copy thereof to the Department of Corrections.   As modified, the judgment is affirmed.

FOOTNOTES

1.   Pursuant to California Rules of Court, rule 976(b), all of this opinion except parts II, III and IV is certified for publication.

2.   The court also instructed on premeditation and deliberation but only in the context of the charge of attempted murder.

FOOTNOTE.   See footnote 1, ante.

PUGLIA, Presiding Justice.

SPARKS and DAVIS, JJ., concur.

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