PEOPLE v. BEGLEY

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. David Jon BEGLEY, Defendant and Appellant.

No. C017274.

Decided: October 25, 1995

Marilyn G. Burkhardt, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Venturi and Thomas H. Beattie, Deputy Attorneys General, for Plaintiff and Respondent.

In this conspiracy case the trial court omitted a portion of the standard jury instruction defining a conspiracy.   The question on appeal is whether that omission constituted reversible error.   We hold that the omission was harmless beyond a reasonable doubt and shall affirm the judgment.

Defendant David Begley was convicted by a jury of conspiracy to injure an archeological object.  (Pen. Code, §§ 182, subd. (a)(1), 6221/212;  further undesignated section references are to this code.)   He was acquitted of the target offense of injuring an archeological object (§ 6221/212) as well as three counts of unlawful possession of Native American artifacts (Pub. Resources Code, § 5097.99, subd. (b)) and three counts of the unlawful removal of Native American artifacts with the intent to sell (Pub. Resources Code, § 5097.99, subd. (c)).1

Ordered to serve 180 days in county jail as a condition of probation, defendant appeals.   He tenders two issues on appeal.   In the published portion of this opinion, we consider and reject defendant's first contention that the trial court committed reversible instructional error by omitting from CALJIC No. 6.10 (5th ed. 1988 bound vol.) (hereafter CALJIC No. 6.10) the requirement that he harbor a specific intent to commit the offense of injuring an archeological object.   In the unpublished part, we reject his second contention that the jury may have relied on an overt act occurring after the object of the conspiracy was completed, thus rendering its verdict legally invalid.

FACTS

In an attempt to apprehend looters of Native American artifacts, the United States Forest Service set up a sting operation called Namoro Enterprises in Shasta County.   Gerald Price, a Forest Service special agent, opened a booth at the Jolly Giant flea market in Anderson and advertised in local papers as a broker of Native American artifacts.

Defendant contacted Agent Price at the flea market on April 20, 1991, the first day of operation.   He explained that he was a collector and had been in the business of buying and selling artifacts over the last three years.   He told Agent Price that he had excavated a number of arrowhead projectile points, beads, obsidian chips and other artifacts from a burial site in the Ono area.   Ono is a small community located a few miles outside of Redding.   The actual site, located on private property in a remote area near Ono, was said to contain a large, extensive mound some 60 feet high.   During this first meeting, defendant introduced Agent Price to Richard Evans, his cousin, and indicated that Evans helped with some of the digging.   Defendant insisted, however, that he was in charge of the operation and “the dealing should be channeled through him, that he was the boss.”

Defendant then produced a tray containing grinding stones, obsidian chips, arrowheads, as well as some shells which he described as “beads.”   At defendant's request, they then walked to defendant's truck and there negotiated for the sale of the items on the tray.   Defendant represented that these items came from the Ono site and a lot of work had been expended in gathering them.   He further explained that the site was on private property and he had deceived the owner by telling him that he was gold mining rather than digging for artifacts.   Apparently skittish during the course of these negotiations, defendant repeatedly asked Agent Price if he were a cop.   Agent Price reassured defendant that he was not.   The agent eventually bought the items for $100 cash.   In the course of his dealing with defendant and his cousin, Agent Price gave both of them a business card for Namoro Enterprises with a local Redding telephone number.

Dr. Eric Ritter, an archeologist for the Bureau of Land Management, testified that these items contained a teshoa flake, used by prehistoric Native Americans for cutting and scraping, a late prehistoric arrow point known as a Gunther barb, and obsidian chips, a form of volcanic glass.   The items were consistent with those one would expect to find in archeological sites in Shasta County, including the Ono site.   Some of the shells, however, turned out to be manufactured glass beads which were not Native American.   Later in the evening of the day he purchased the items, Agent Price showed them to another archeologist who opined that the items probably had been removed from an archeological site but were not worth much.

The next day, defendant again came to Agent Price's booth at the flea market.   The officer complained to defendant that the items he purchased yesterday were not worth the money he paid.   He asked if defendant had better items worth more.   Defendant replied that there were plenty of items at the Ono site and assured Agent Price that he could obtain better artifacts.   Later in the afternoon Richard Evans appeared at the booth.   Eileen Richmond, a law enforcement officer with the Forest Service, was tending the booth at the time.   Agent Price walked over to the booth where he observed Evans displaying various artifacts, including several arrowheads.   Asked if any of the arrowheads came from the Ono site, Evans sorted out seven from the group and stated that they came from the site.   Agent Price told Evans that he wanted to have the arrowheads appraised to ensure that they were authentic, prehistoric Native American artifacts.   Evans agreed.   These arrowheads were later examined by Dr. Ritter who found them to be projectile points of the late prehistoric period commonly found in Shasta County.

Agent Price returned to Shasta County on Friday, April 26, 1991.   There were several messages on the answering machine from defendant reporting that he had 12 arrowheads he wanted to sell.   On Saturday, defendant once again came to the booth at the flea market.   He said he did not bring the 12 arrowheads because he had recently dug them up and they were still dirty.   He did have, however, a very nice dark projectile point which he gave to Agent Price in anticipation of a sale of additional items.   Later that morning, Evans appeared at the booth with 18 additional arrowheads, which he represented he had dug up from the Ono site.   Evans wanted to be paid but Agent Price declined until the items had been verified for their authenticity.   Agent Price ended up giving Evans $20 for gas money.   Evans agreed to take Agent Price to the Ono site later that afternoon.

As agreed, Agent Price and Officer Richmond met Evans at the Clear Creek store and then the group proceeded in separate cars past Ono and eventually onto dirt roads.   They parked the cars and started walking to the site.   Along the way, Evans suddenly turned around and asked Agent Price if he were a cop.   Reassured that he was not, the group continued until they came to a large mound in front of a hill in a small valley.   Evans told the officers that the digging areas were all up around this mound.   Evans pointed to one area in the mound and said he had dug it with defendant.   He also indicated that the black arrowhead he had delivered to Agent Price had been retrieved from a small hole in the mound.

The next day, defendant came to the booth with a tray containing several items, including a stone scraping tool, a bead, three arrowheads, and a spear point.   Defendant represented that he had dug out these items from the Ono site the preceding night.   Defendant also agreed to take the officers to the site and met them at the same place they had assembled the day before with Evans.   Taking the identical route, defendant guided them to the same site.   Defendant pointed out the holes in the mound where the items had been retrieved.   He also pointed to a larger hole which he described as the Chief's Grave.   There appeared to be a fresh hole in the mound that had not been present when the officers accompanied Evans the day before.

The following day, April 29th, Agent Price met defendant at the Clear Creek store to negotiate the purchase of the items shown by defendant the day before.   Agent Price offered to pay $400 for all the items pending an assessment of their authenticity.   In the meantime, the officer gave defendant $150.   When Dr. Ritter later examined the items he concluded that the spear point was of recent fabrication and was not the work of a prehistoric Native American.   But he found several of the remaining artifacts to be genuinely prehistoric.

On two days in May 1991, defendant visited Agent Price's booth, either offering items for sale or seeking payment for items he had left with Agent Price pending appraisal.   Defendant claimed all of these items were from the Ono site.   Once, while defendant was present, Evans and codefendant Diane Autry 2 brought Agent Price several strands of Native American trade beads.   They left behind one of the strands for Agent Price.   The incident was videotaped.

On July 22, 1991, defendant's residence was searched and officers seized trade beads, various midden-covered 3 rocks, and documents and other materials suggesting defendant was in the business of fabricating Native American artifacts.

At trial prosecution experts identified some of the articles sold to Agent Price and seized from defendant's residence as authentic artifacts;  some of the items also had characteristics consistent with recent removal from an archeological site.

Defendant testified none of the items he offered Agent Price were from the Ono site.   He claimed he discovered the Ono site while prospecting for gold with his cousin.   The mound had holes in it where everybody had been digging.   He took Agent Price to this site only because the agent would not buy the spear point unless defendant showed him the place where it had been dug.   Defendant admitted falsely telling the agent that he had obtained the point from this site.  “Well, I was conning a man into believing I had dug this spear point up out there and the spear point was fake, and I told him I dug it up out of a Chief's Grave, okay, for $500.”

According to defendant, some of the items had been found in areas disturbed by development;  others—such as the arrowheads—were things defendant made to sell at flea markets or which he bought and offered to Agent Price at greatly inflated prices.   He told the officer that he was digging at the Ono site and that he was the person in charge simply as part of the confidence game to make Agent Price think he was “Mr. Big” and to increase the value of the items he offered for sale.

DISCUSSION

I

In California, the offense of conspiracy is committed, among other ways, when “two or more persons conspire” to “commit any crime” and thereafter one or more of the conspirators commits an act “to effect the object thereof.” 4  (§§ 182, subd. (a)(1), 184.)   The conspired crime in this case was the willful injury of an archeological object in violation of section 622 1/2 12.   This statute provides:  “Every person, not the owner thereof, who wilfully injures, disfigures, defaces, or destroys any object or thing of archeological or historical interest or value, whether situated on private lands or within any public park or place, is guilty of a misdemeanor.”

The information in this case charged:  “On or about April through July, 1991, said Defendant did willfully and unlawfully conspire with another to willfully injure, disfigure, deface and destroy an area of arch[ ]eological and historical interest and value.”   Seven overt acts were alleged:  a conspirator (1) dug a hole, (2) went to the Jolly Giant flea market, (3) spoke with undercover special agents of the United States Forest Service, (4) possessed beads, (5) possessed arrowheads, (6) offered to sell beads, and (7) offered to sell arrowheads.

The trial court instructed the jury substantially in the language of CALJIC No. 6.10 but inexplicably omitted the part which reads, “and with the further specific intent to commit such offense.”   Thus, the trial court instructed the jury in the language of CALJIC No. 6.10, with the omission shown in brackets, as follows:  “A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit a public offense.   [¶] And in this case it's alleged the public offense of 622 and one-half of the Penal Code, [and with the further specific intent to commit such offense] followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement.  [¶] Conspiracy is a crime.  [¶] In order to find a defendant or the defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, that is a specific intent crime, there must be proof of the commission of at least one of the overt acts alleged in the information.   It is not necessary to the guilt of any particular defendant that the defendant personally committed the overt act, if he is one of the conspirators when such act was committed.  [¶] In other words, if there's an agreement between two persons to do an act, they have the specific intent to agree to do this act and the act's unlawful or one of them does the act pursuant to this agreement, then they're both liable.  [¶] The term ‘overt act’ means any step taken or act committed by one or more conspirators which goes beyond mere planning or agreement to commit a public offense and which step or act is done in furtherance of the accomplishment of the object of the conspiracy.  [¶] To be an overt act, the steps taken or committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy.   Nor is it required that such step or act, in and of itself, be a criminal or unlawful act.”

 The definition of conspiracy found in the present version of CALJIC No. 6.10 was derived from People v. Horn (1974) 12 Cal.3d 290, 115 Cal.Rptr. 516, 524 P.2d 1300.5  There the high court, in a case charging conspiracy to commit first degree murder, stated:  “Conspiracy is a ‘specific intent’ crime.  [Citations.]   The specific intent required divides logically into two elements:  (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy.  (Harno, Intent in Criminal Conspiracy (1941) 89 U.Pa.L.Rev. 624, 631;  Developments in the Law—Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 935;  Comment (1952) 26 So.Cal.L.Rev. 64, 67.)   To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of the offense.”  (Id. at p. 296, 115 Cal.Rptr. 516, 524 P.2d 1300;  see also People v. Marks (1988) 45 Cal.3d 1335, 1345, 248 Cal.Rptr. 874, 756 P.2d 260, quoting Horn.)   As the Horn court explained, it is not enough to show that the defendants, having the capacity to do so, conspired.  “Under Penal Code section 182 the jury must also determine which felony defendants conspired to commit, and if that felony is divided into degrees, which degree of the felony they conspired to commit.   The jury cannot perform that task unless it is instructed on the elements of both the offense defendants are charged with conspiring to commit, and any lesser offense defendants assert to be the true object of the conspiracy.”  (People v. Horn, supra, 12 Cal.3d at p. 297, 115 Cal.Rptr. 516, 524 P.2d 1300, italics omitted.)

Defendant contends that the trial court's conspiracy instruction was fatally defective because it did not instruct the jurors that they must find defendant had the specific intent to violate section 6221/212.   In his view, the defective instruction indicated that the specific intent requirement applied only to his intent to agree to commit that crime.   The Attorney General concedes the trial court erred in giving the truncated version of the conspiracy instruction.

In light of this concession, defendant further contends the court's failure to instruct on an essential element of the offense constitutes federal constitutional error that is reversible per se.   But even assuming the error was not reversible per se, he goes on, reversal is still required because the error was not harmless beyond a reasonable doubt.   Citing People v. Dyer (1988) 45 Cal.3d 26, 246 Cal.Rptr. 209, 753 P.2d 1, and People v. Cummings (1993) 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d 1, the Attorney General responds that the instructional error is not reversible per se but rather subject to the Chapman 6 “harmless beyond a reasonable doubt” standard of review.   But even under that exacting standard, the Attorney General argues, the error was harmless.   We agree with the Attorney General's assessment.

In Cummings, the trial court failed to instruct on four of the five elements of robbery.   The court did instruct, however, that “ ‘․ the crime of attempted robbery ․ requires the specific intent to permanently deprive the owner of its property.’ ”  (4 Cal.4th at pp. 1311–1312, 18 Cal.Rptr.2d 796, 850 P.2d 1, fn. omitted.)   The defendant argued the court's failure to instruct on all the elements was federal constitutional error that was reversible per se.  (Id. at p. 1312, 18 Cal.Rptr.2d 796, 850 P.2d 1.)   Rejecting the People's contention that the instructional error was subject to the Chapman harmless error standard of review, the high court in Cummings recognized “a clear distinction between instructional error that entirely precludes jury consideration of an element of an offense and that which affects only an aspect of an element.”  (4 Cal.4th at pp. 1312–1315, 18 Cal.Rptr.2d 796, 850 P.2d 1.)  “The distinction affects the applicable standard of review.   Whereas the former type of error appears to be reversible per se [citations], the latter is subject to review under the harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710–711, 87 S.Ct. 824 [827] 24 A.L.R.3d 1065].”  (People v. Lara (1994) 30 Cal.App.4th 658, 669, 35 Cal.Rptr.2d 886.)

 The standard of review therefore turns on whether the jury was simply misinstructed on an element of the offense or whether the issue of defendant's specific intent to commit the target offense was removed from the jury's consideration.  (See People v. Hernandez (1988) 46 Cal.3d 194, 210, 249 Cal.Rptr. 850, 757 P.2d 1013 [“One must distinguish misinstruction ․ from the situation in which the issue of intent is removed from the jury's consideration.”].) 7

 Before resolving that question we first consider and reject the Attorney General's argument that the error was cured by other instructions.   Citing the entire charge to the jury, the Attorney General argues that the jury necessarily resolved the factual question of intent adversely to defendant.   The jury was instructed substantially in accordance with CALJIC Nos. 6.10 (requiring at least one of the overt acts to have been committed by one or more of the conspirators for the purpose of furthering the object of the conspiracy), 6.23 (5th ed. 1988 bound vol.) (requiring the same), 6.12 (5th ed. 1988 bound vol.) (“The formation and existence of a conspiracy may be inferred from all of the circumstances tending to show the common intent․”), and 6.14 (5th ed. 1988 bound vol.) (“The adoption by a person of the criminal design and criminal intent entertained in common by others and of its object and purpose is all that is required to make that person a co-conspirator for [sic] when the required elements of a conspiracy are present.”).   But as the Attorney General concedes, “none of these instructions explicitly supplied the element of intent omitted by the court” and we reject his argument that they did so by “clear implication.”   Moreover, although the court charged the jury in other instructions that conspiracy is a specific intent crime (CALJIC Nos. 2.02 (1992 rev.)   Supplemental Service pamphlet No. 1 (1995) (hereafter CALJIC No. 2.02) [sufficiency of circumstantial evidence to prove specific intent] 8 and 3.31 (1992 rev.)   Supplemental Service pamphlet No. 1 (1995) (hereafter CALJIC No. 3.3l) [concurrence of act and specific intent] ),9 these instructions referred to specific intent generally without defining it and did not inform the jury that a specific intent to violate section 622 1/2 12 was required.   Consequently, the issue of intent was not necessarily resolved by these additional instructions.

We turn then to the question of whether the defective conspiracy instruction precluded the jury's consideration of an element of the offense.   We conclude it did not.

 We begin by examining the dual intents required for the crime of conspiracy.   All crimes in California require both an act and a conjoined mental state.  “In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”  (§ 20.)   In the crime of conspiracy, “[t]he agreement constitutes the act, while the intention to thereby achieve the objective is the mental state.”  (2 LaFave & Scott, Substantive Criminal Law (1986) § 6.4, p. 62.)   Here the jury was instructed correctly that it must find that defendant had a specific intent to agree.   Thus, we have no occasion to consider the intent to agree component of conspiracy.   That leaves the second component, the intent to achieve the object of the conspiracy.

 It is true that an intent to agree is conceptually different from an intent to achieve the object of the conspiracy.  “At the outset, it is useful to note that there are really two intents required for the crime of conspiracy.   Every conspiracy involves an agreement, so it must be established that the several parties intended to agree.   But such an intent is ‘without moral content,’ and thus it is also necessary to determine what objective the parties intended to achieve by their agreement.   Only if there is a common purpose to attain an objective covered by the law of conspiracy is there liability.  [¶] One of these intents may exist without the other.   Quite clearly there may be an intent to agree without there also being a common intent to achieve an unlawful objective, as where A and B agree to burn certain property and A knows the property belongs to C but B (perhaps because he has been misled by A ) believes that the property belongs to A.   On the other hand, two persons may share an unlawful objective without having reached an agreement;  A and B might both want C's property burned and yet have reached no agreement in that regard—even if they had communicated their intentions to one another.”  (2 LaFave & Scott, Substantive Criminal Law, supra, § 6.4, p. 76, fns. omitted.)

 The question is whether the jury's finding that defendant and his confederate specifically agreed to “wilfully injure” a “thing of archeological or historical interest or value” (in this case excavating a Native American burial site) means the jury necessarily considered whether defendant had the specific intent to commit the offense?   As we see it, the answer is yes.

Under the facts of this case, it was not possible for defendant to have entered into an agreement with his coconspirator, Evans, “with the specific intent to agree to commit the public offense” of injuring an archeological object and still not intend to commit that offense, either personally or through the coconspirator.   Indeed, what does a specific intent to agree to commit a named crime mean if it does not mean to intend to the commit that crime? 10

It is, of course, possible that all the conspirators may not agree upon the object of the conspiracy.11  “If A agrees with B and C to commit a rape, and B and C agree between themselves to commit a burglary, the only conspiracy to which A is a party is a conspiracy to rape.   Although the party dimension of the agreement in which he participates includes B and C, its object dimension is limited to rape alone.”  (Developments in the Law—Criminal Conspiracy, supra, 72 Harv.L.Rev., 929.)   In such a case, the distinction between the agreement and the intended object of the conspiracy becomes critical.   But where, as here, there was only one crime which was the object of the conspiracy, namely, the desecration of a Native American burial site for relics to sell, the distinction is meaningless.

This very point was made by Dean Harno in the article cited by the California Supreme Court in its Horn decision.   There the author asserts that “[t]here are, indeed, two types of intent in every conspiracy.   These always shade into each other and often there is no practical purpose served in distinguishing them.   In a number of instances, however, legal consequences hinge on which of the two is involved and, when that is true, it becomes essential that they be distinguished.   Since every conspiracy involves an agreement, it is necessary to establish through sufficient evidence that each of the parties charged had an intent to enter into that agreement.   The question here involved is similar to that which arises in connection with the establishment of any partnership.   The issue is, was there a meeting of the minds?   Did the separate intentions of each of the parties meet on common ground to effect an agreement?   Once the agreement is established, the next question is whether the purpose agreed upon involves a criminal intent.   The inquiry here is, was that common intent criminal?   The issue on the first intent thus is whether each of the persons charged is a party to the agreement;  the issue on the second is whether the common intent as united through agreement carries criminal consequences.”  (Harno, Intent in Criminal Conspiracy (1941) 89 U.Pa.L.Rev. 624, emphasis added.)

In this case the distinction between intending to agree to commit the crime of injuring an archeological object and intending to commit that crime is not significant.   There is no practical distinction between “an agreement entered into between two or more persons with the specific intent to agree to commit ․ the public offense of 622 and one-half of the Penal Code,” as instructed by the court and such an agreement accompanied by the mental state omitted by the court, namely, “with the further specific intent to commit such offense.”   What is conveyed by the challenged instruction is that there must be an agreement between defendant and at least one other person and that agreement must contain an intent to commit the crime in question.

Because there is no practical distinction between the two intents in this case, the trial court's flawed conspiracy instruction did not remove the issue of specific intent to commit the target offense from the jury's consideration.   Since the two intents were indistinguishable, the issue of defendant's intent to commit a violation of section 6221/212 remained a question for the jury to resolve.   Accordingly, the instructional error did not constitute reversible error per se.

 “It remains to be determined whether the instructional error in this case was prejudicial under the harmless error test traditionally applied to misinstruction on the elements of an offense, namely, whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ”  (People v. Harris (1994) 9 Cal.4th 407, 424, 37 Cal.Rptr.2d 200, 886 P.2d 1193.)   Quoting the United States Supreme Court's decision in Yates v. Evatt (1991) 500 U.S. 391, 403–405, 111 S.Ct. 1884, 1892–1893, 114 L.Ed.2d 432, 448–449, the Harris court stated:  “To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.”  (9 Cal.4th at p. 426, 37 Cal.Rptr.2d 200, 886 P.2d 1193, emphasis omitted.)

In this case, only one conspiracy and only one objective was alleged in the information:  a conspiracy “to willfully injure, disfigure, deface and destroy an area of arch[ ]eological and historical interest and value.”   In considering whether defendant was guilty of that crime the jury was required to examine the question of whether he entered into an agreement with another to injure archeological objects and whether, pursuant to that conspiracy, one of the conspirators committed an overt act in furtherance of that conspiracy.   Among other things, the jury had to determine whether Agent Price's testimony was true.   Under that testimony defendant and his cohort admitted jointly digging up the archeological mound at the Ono site for Native American relics to sell.   If Agent Price's testimony was found true, as the jury in fact determined, then the jury necessarily found defendant harbored the requisite specific intent to commit the target crime.   This follows not only from the evidence but also from the fact that there was no distinction between the dual intents under the circumstances of this case.   If defendant had the specific intent to agree to injure an archeological object, he then had the specific intent to commit that crime.

The defense was not that defendant joined a conspiracy but lacked the specific intent to injure the protected site;  instead, the defense was that defendant simply obtained money by false pretenses under a scam to sell misrepresented Indian tokens and artifacts.   In his closing argument, defense counsel argued that there was no conspiratorial agreement between defendant and his cousin, Richard Evans.  “Concerted action?   Doesn't sound like it.  [¶] When Richard Evans handed over these spear points to Mr. Price, where was [defendant]?   He wasn't there.  [Defendant] had no involvement in this transaction.   Nor in the other transaction[ ] involving—I think there were six or seven other spear points—projectile points.   Is this concerted action by two people?   Sure doesn't sound like it.”   In light of this defense, and the nature of the alleged conspiracy, the flawed instruction was unimportant in relation to everything else the jury considered on the issue of defendant's intent to injure an archeological object.   Accordingly, the instructional error made no difference in reaching the verdict and thus was harmless beyond a reasonable doubt.

II***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   No claim is made on appeal that the guilty verdict was fatally inconsistent with the not guilty verdicts or that the conspiracy prosecution itself was inconsistent with the statute defining the substantive offense.  (See 6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) § 3046, pp. 3767–3768;  1 Witkin & Epstein, supra, § 158, pp. 177–178.)   Consequently, we have no occasion to consider those questions.

2.   Codefendant Diane Autry pleaded guilty to a misdemeanor offense prior to trial and thus is not a party to this appeal.

3.   “Midden” was described by an archeologist as a “trash mound,” that is “materials that have built up over time from cooking ovens and fires, house structures that have been built and either decomposed or have burnt,” and sometimes including “human remains” resulting in soil that is “very dark colored and very distinctive from surrounding soil․”

4.   The words “any crime” in this statute “include all crimes—whether felonies or misdemeanors—which are known to the law of this state and whether defined and made punishable by the Penal Code or by any other law or statute of the state.”  (Doble v. Superior Court (1925) 197 Cal. 556, 565, 241 P. 852.   See also People v. Osslo (1958) 50 Cal.2d 75, 97–98, 323 P.2d 397.)

5.   Prior to the Horn decision, the standard CALJIC instruction defining conspiracy did not contain the “intent to agree” language found in the present version.   The earlier instruction read in relevant part:  “A conspiracy is an agreement between two or more persons to commit the public offense of ․ [[or] ․] and with the specific intent to commit such offense [[or] ․], followed by an overt act committed in this state by one [or more] of the parties for the purpose of accomplishing the object of the agreement.   Conspiracy is a crime.”  (CALJIC No. 6.10 (3d rev. ed. 1970 bound vol.).)

6.   Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 710–711.

7.   The instructional error presented here also occurred in People v. Marks, supra, 45 Cal.3d 1335, 248 Cal.Rptr. 874, 756 P.2d 260.   Although the Marks court reversed the judgment on another ground, the court added these cautionary comments:  “The court instructed the jury with CALJIC No. 6.10 (1974 rev.), which states in part:  ‘A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the public offense of murder․’   The court on its own motion and without explanation deleted from the standard instruction the additional required language in the instruction that the agreement must be ‘with the further specific intent to commit such offense.’  (Italics added.)   Conspiracy requires a dual specific intent:  ‘(a) the intent to agree, or conspire, and (b) the intent to commit the offense, which is the object of the conspiracy.’  (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal.Rptr. 516, 524 P.2d 1300].)   This dual intent is carefully explained in the Use Note to CALJIC No. 6.10.   We can only speculate as to why the trial court chose to modify the standard instruction.   As a result of the deletion, the instruction was silent as to the intent required to commit the underlying crime of murder.   We caution the trial court not to modify the standard instruction in the event of retrial.”  (45 Cal.3d at p. 1345, 248 Cal.Rptr. 874, 756 P.2d 260.)

8.   The court instructed the jury in the language of CALJIC No. 2.02 as follows:  “The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act.   However, you may not find the defendant guilty of the crime charged in counts 1 [the conspiracy count], 6, 8 and 10, there's four of them, unless the proved circumstances are not only consistent with the theory that the defendant had the required specific intent but cannot be reconciled with any other rational conclusion.  [¶] Also, if the evidence as to such specific intent is susceptible of two reasonable interpretations, one of which points to the existence of the specific intent and the other to the absence of the specific intent, you must adopt that interpretation which points to the absence of the specific intent.  [¶] If, on the other hand, one interpretation of the evidence as to such specific intent appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

9.   The court instructed the jury in the language of CALJIC No. 3.31 as follows:  “In the crimes charged in counts one [the conspiracy count], six, eight and ten—and you will have a charging sheet that will go with you to the jury room so you'll be able to discern these counts, and they set forth in the count the fact that there must be a specific intent.   So there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.   Unless such specific intent exists, the crime to which it relates is not committed.   [¶] The specific intent required is included in the definitions of the crimes set forth elsewhere in these instructions.”

10.   The distinction would, however, be meaningful in the case of a feigned accomplice.  “Assume that A wants to burglarize a store and thus approaches B to solicit his assistance in the commission of the crime, that upon hearing A 's plan B manifests his complete concurrence in the scheme and expresses his willingness to participate, but that B secretly intends not to go through with the plan and has merely feigned agreement because he wishes to trap A.   Is there a conspiracy under these circumstances?   No is the answer traditionally given by the courts.   B quite clearly is not guilty of conspiracy, if for no other reason because he does not have the intent-to-burglarize mental state;  A does have the requisite mental state, but yet may not be convicted of conspiracy because there has been no agreement and thus no criminal act.”  (2 LaFave & Scott, Substantive Criminal Law, supra, § 6.4, p. 72, fns. omitted.)In this case, however, there is no evidence that defendant was a feigned accomplice.   As we shall explain, under the facts of this case, either defendant agreed to violate section 6221/212 with the specific intent to commit that offense, or there was no conspiratorial agreement at all.

11.   It is also true that one could enter into a general conspiracy to engage in a series of lawless acts, such as by joining a criminal gang.   The mere joining of such a conspiracy would not logically establish that one intended to commit any specific crime.   Indeed, the objective of such a conspiracy would then be of indeterminate scope.  “ ‘Murder Incorporated’ would be a group contemplating the commission of other than a definite number of crimes.   Each member of it therefore ‘takes his chances,’ and is party to a conspiracy whose object dimension includes the offenses in fact undertaken.”  (Developments in the Law—Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 930, fn. omitted.)

FOOTNOTE.   See footnote *, ante.

SPARKS, Acting Presiding Justice.

SCOTLAND and BROWN, JJ., concur.