PEOPLE v. CORTEZ

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Mario Alberto CORTEZ, Defendant and Appellant.

No. B093691.

Decided: July 19, 1996

Wesley A. Van Winkle, under appointment by the Court of Appeal, Berkeley, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.

In People v. Swain (1996) 12 Cal.4th 593, 603, 49 Cal.Rptr.2d 390, 909 P.2d 994, our Supreme Court held the crime of conspiracy cannot be committed if the criminal objective is second degree implied malice murder.   The court also identified a serious question whether there is a viable crime of conspiracy to commit express malice second degree murder, because the mental state required for conspiracy to commit murder satisfies the requirement for the first degree grade of that crime.  (Id. at p. 608, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   Today, we address that question and conclude that all conspiracy to commit murder “is necessarily ‘conspiracy to commit first degree murder’ ” (id. at p. 609, 49 Cal.Rptr.2d 390, 909 P.2d 994) that is, premeditated murder.

FACTUAL AND PROCEDURAL SUMMARY

This case arises out of a 1992 gang shooting.   We summarize the relevant facts in light of the jury's verdict.  (See People v. Mack (1992) 11 Cal.App.4th 1466, 1468, 15 Cal.Rptr.2d 193.)

Defendant Mario Alberto Cortez was a member of Krazy Kats, a Los Angeles street gang.   In the summer of 1992, Krazy Kats and another gang, the King Boulevard Stoners, were “at war,” with “shootings going back and forth daily.”   Three weeks before the shootings in this case, a Krazy Kat named Javaco was killed in a drive-by shooting, attributed to the King Boulevard Stoners.

After midnight on July 13, Cortez and another Krazy Kat, Mauricio Corletto, decided to retaliate for Javaco's death by doing a drive-by shooting in King Boulevard territory.

At that time, the King Boulevard Stoners spent their summer nights drinking and smoking in a junior high schoolyard.   Cortez and Corletto drove to this schoolyard in a stolen Cadillac.   Cortez drove;  Corletto sat in the rear seat with a loaded handgun.

Substantial prosecution evidence, including audiotaped statements made to police by both Cortez and a King Boulevard gang member, suggests that Corletto leaned out of the Cadillac's window, yelled “Krazy Kats,” and fired four shots into the schoolyard.   King Boulevard members returned fire, hitting Corletto in the temple.

Cortez attempted to drive away, but the Cadillac stalled, and he was forced to flee on foot.   Paramedics found Corletto, who died the next day.

Cortez testified at trial and contradicted his taped description of these facts.   Although he and Corletto originally had planned a drive-by shooting, he testified, they changed their minds when they could not convince any other Krazy Kats members to join them.   The reason they went to the King Boulevard schoolyard was “to check it out to see who was there;  how many of them were there.”   Corletto was killed when the Cadillac stalled and King Boulevard members attacked.

Cortez was charged with Corletto's murder, (Pen. Code §§ 187, 189 1 ;  all further statutory references are to this code) on the theory that Cortez's actions provoked the King Boulevard response that killed Corletto.   He also was charged with conspiracy to commit murder, on the theory that he had agreed to participate in a drive-by shooting.   Both counts included arming and street gang participation allegations.  (§§ 12022, subd. (a)(1) and (§ 186.22, subd. (b)(1)).

The jury convicted Cortez of conspiracy to commit murder, and found the firearm allegation to be true.   It was unable to reach a verdict on the murder charge.2  Cortez was sentenced to a term of 25 years to life, together with an additional year for the arming enhancement.3

Cortez argues that the trial court erred in failing to require the jury to determine the degree of the murder he conspired to commit.   He also argues that the inclusion of an implied malice instruction in the jury instructions violates the principles announced in People v. Swain, supra, (1996) 12 Cal.4th 593, 49 Cal.Rptr.2d 390, 909 P.2d 994.   In addition, Cortez argues the trial court's failure to specifically instruct the jury that the reasonable doubt standard applied to the defense of withdrawal from the conspiracy was error.   Finally, he offers a familiar challenge to the constitutionality of CALJIC No. 2.90, the reasonable doubt instruction.

DISCUSSION

IConspiracy to Commit Second Degree Murder

We begin with appellant's claim that the trial court erred in failing to direct the jury to determine the degree of the murder he conspired to commit.   Although this claim was not made at trial, section 1259 authorizes an appellate court to review jury instructions if a substantial right of the defendant is affected.  (See People v. Hernandez (1991) 231 Cal.App.3d 1376, 1383, 283 Cal.Rptr. 81.)   Appellant's argument is that conspiracy to commit express malice second degree murder is a lesser offense included in the crime of conspiracy to commit murder and that, as such, it requires instruction sua sponte.   If appellant were correct, the trial court's failure to instruct would constitute a substantial infringement on his rights.   We turn to the merits of the contention.

A

The trial court relied on People v. Miller (1992) 6 Cal.App.4th 873, 8 Cal.Rptr.2d 193 for the proposition that section 182 mandates that all conspiracies to commit murder be punished at the level of first degree murder.4  It therefore declined to direct the jury to determine the degree of the murder Cortez conspired to commit.   The Miller court, however, did not hold there is no crime of conspiracy to commit second degree murder;  to the contrary, it impliedly accepted the existence of that crime.  (Id. at p. 879, 8 Cal.Rptr.2d 193 [“conspiracy to commit second degree murder is not a different degree of the crime of conspiracy to commit first degree murder”].)   We do not agree with the implication of this statement, because we do not believe it is possible to agree to commit an unpremeditated murder.5  The trial court did not seek a determination of the degree of the target murder because it believed such a determination to be irrelevant.   We affirm because such a determination could have had only one legally correct outcome.

In People v. Swain, supra, 12 Cal.4th 593, 49 Cal.Rptr.2d 390, 909 P.2d 994, the Supreme Court held that it is logically impossible to be guilty of conspiracy where the target crime is second degree implied malice murder.   (Id. at p. 603, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   While Swain did not decide the viability of conspiracy to commit second degree express malice murder, it provides the proper framework for conspiracy analysis.

The Swain defendants were convicted of conspiracy to commit second degree murder based on their involvement in a drive-by shooting.   One defendant argued that the shooting was a wild act of self-defense.   The other insisted he was not involved at all.   The jury, instructed on both express and implied malice second degree murder, returned general verdicts convicting both of conspiracy to commit second degree murder.   The Supreme Court reversed.

 “ ‘Conspiracy is a “specific intent” crime․  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․’ ”  (People v. Swain, supra, 12 Cal.4th at p. 600, 49 Cal.Rptr.2d 390, 909 P.2d 994, quoting People v. Horn (1974) 12 Cal.3d 290, 296, 115 Cal.Rptr. 516, 524 P.2d 1300.)   In Swain, the object crime was murder, defined as “the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).)  Putting these two definitions together, the court concluded that “conspiracy to commit murder requires a finding of intent to kill,․”  (People v. Swain, supra, 12 Cal.4th at p. 607, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

The court reasoned that a person who agrees (that is, conspires) to kill a human being, and who intends to commit that killing, necessarily has formed a specific intent to kill.   Implied malice murder, however, is different.   Murder on that theory does not require that the defendant intend to kill, but only that he or she intends to do a dangerous act that results in death.   Malice is implied from the disregard of potentially deadly consequences.   Conspiracy cannot be based on this theory because a defendant cannot simultaneously agree to kill and disregard the risk of death.   (People v. Swain, supra, 12 Cal.4th at pp. 599–603, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

Because the jury in Swain was instructed on both express and implied malice, the court was unable to determine if the conspiracy convictions it reached rested on a proper finding of specific intent to kill.   It therefore was compelled to reverse.  (12 Cal.4th at p. 607, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

B

 Except for felony-murder, “first degree murder is distinguished from second degree [express malice] murder by the presence or absence of premeditation and deliberation.”  (People v. Van Ronk (1985) 171 Cal.App.3d 818, 822, 217 Cal.Rptr. 581;  see also CALJIC No. 8.30 [defining unpremeditated murder of the second degree].)   It follows that the crime of conspiracy to commit second degree murder contemplates, at most, the “narrow range of cases ․ in which conspirators formed an agreement to kill but made that agreement without deliberation and premeditation.”  (See People v. Swain, supra, 12 Cal.4th at p. 625, 49 Cal.Rptr.2d 390, 909 P.2d 994 (conc. opn. of Kennard, J.).)  Swain suggests this range does not exist.

“[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.”  (People v. Swain, supra, 12 Cal.4th at pp. 608–609, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   This is so because “ ‘[p]remeditated’ simply means ‘ “considered beforehand.” ’ ”  (People. v. Stanley (1995) 10 Cal.4th 764, 795, 42 Cal.Rptr.2d 543, 897 P.2d 481, internal quotation marks omitted.)   A conspiracy to commit murder is necessarily a conspiracy to commit premeditated murder because the act of agreement guarantees that the conspired crime was considered beforehand.  “[A] premeditated and deliberate intent to kill ․ is present in the context of a conspiracy [to commit murder], 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 p. 613, 49 Cal.Rptr.2d 390, 909 P.2d 994, (italics in original) (conc. opn. of Mosk, J.).)   We find this reasoning compelling.   It leads to no other conclusion but that conspiracy to murder is always targeted at first degree murder.

C

 We recognize a conflict between this conclusion and statements in People v. Horn, supra, 12 Cal.3d 290, 115 Cal.Rptr. 516, 524 P.2d 1300, and People v. Alexander (1983) 140 Cal.App.3d 647, 189 Cal.Rptr. 906.   The reason for the conflict is the “arguably ambiguous” (People v. Swain, supra, 12 Cal.4th at p. 609, 49 Cal.Rptr.2d 390, 909 P.2d 994) language of section 182, which we have set out in the margin.  (See fn. 3, supra.)   Again, we look to Swain for guidance.

The ambiguity concerns the operation of the final clause of the quoted passage.   Are all conspiracies to murder punished in the manner prescribed for first degree murder, or is that punishment reserved for those conspiracies for which the degree of the object murder is not determined?   On the one hand, the clause may be read as excepting the crime of conspiracy to murder from the general rule that conspiracies to commit offenses that are defined by degrees are punished according to the degree of the object crime;  on the other hand, the “relevant language ․ can literally be read as contemplating verdicts of ‘conspiracy to commit second degree murder.’ ”  (People v. Swain, supra, 12 Cal.4th at p. 610, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

The relevant language was added to section 182 in 1955, 15 years after the court decided that “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree 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 (1940) 15 Cal.2d 731, 745, 104 P.2d 794.)

Nothing in the 1955 amendment, nor the rest of section 182, suggests a legislative intent to overturn Kynette on this point.   Indeed, as the Swain court pointed out, the language we are reviewing may have been added to section 182 “for the very purpose of effectuating [the] holding in Kynette [citation] ․ that all conspiracy to commit murder is conspiracy to commit murder in the first degree.”  (People v. Swain, supra, 12 Cal.4th at p. 609, 49 Cal.Rptr.2d 390, 909 P.2d 994, italics in original.)

This interpretation of section 182 is similar to the Supreme Court's treatment of an amendment to the general attempt statute (§ 664) in People v. Bright (1996) 12 Cal.4th 652, 49 Cal.Rptr.2d 732, 909 P.2d 1354.   The amendment provided that premeditated attempted murders be punished more severely than other attempted murders.   Prior to the amendment “it was recognized generally that the crime of attempted murder was not divided into degrees.”  (Id. at p. 665, 49 Cal.Rptr.2d 732, 909 P.2d 1354.)   The court noted that it was “unaware of any California penal provision creating degrees of an offense by implication,” (id. at p. 668, 49 Cal.Rptr.2d 732, 909 P.2d 1354), and held that because the Legislature had not expressed a clear intent to divide the crime of attempted murder into degrees, the punishment provision described could not be read to do so.  “Nothing in the wording of the amendment reflects a legislative intent to [divide the crime of attempted murder into degrees]” (id. at p. 667, 49 Cal.Rptr.2d 732, 909 P.2d 1354) and the court presumed that “had the Legislature intended to alter [the] generally recognized rule [that attempt is a unitary crime], it would have done so explicitly.”   (Id. at p. 668, 49 Cal.Rptr.2d 732, 909 P.2d 1354.)

The statutory language we are reviewing, like the language construed in Bright, excepts the punishment for a certain crime—conspiracy to commit murder—from the general punishment scheme for that category of crimes—conspiracy to commit graduated offenses.   Since section 182 contains no clear expression of Legislative intent to redefine the crime of conspiracy to commit murder, the reasoning of Bright suggests that the “except in the case of conspiracy to commit murder” clause should be read as a simple punishment provision.

In 1974, however, the court offered this contrary interpretation of section 182:  “As this language is written and punctuated, it plainly authorizes the trier of fact to return a verdict finding conspiracy to commit murder in the second degree.   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.   Since the Legislature has authorized a verdict of conspiracy to commit second degree murder, it clearly does not believe that crime to be a logical impossibility.”  (People v. Horn, supra, 12 Cal.3d at p. 298, fn. 5, 115 Cal.Rptr. 516, 524 P.2d 1300, italics in original.)

This dictum, not necessary to the decision in Horn, has been seriously questioned by six of the seven Justices who participated in People v. Swain, supra, 12 Cal.4th 593, 607, 617, 49 Cal.Rptr.2d 390, 909 P.2d 994 (lead opn. of Baxter, J. and Lucas C.J., George, J. and Werdegar, J. concurring [“key changes to the law of murder ․ have called into question the continued validity of certain aspects of [Horn ]'s holding.”];   conc. opn. of Mosk, J. and Arabian, J., concurring [“[w]e should overrule Horn ․”] ) and by the Fourth District in People v. Miller, supra, 6 Cal.App.4th at p. 878, fn. 2, 8 Cal.Rptr.2d 193 [“[i]n light of [the abolition of the diminished capacity defense], we question the continued validity of Horn ․”]

In Horn, the court relied on an understanding of murder and malice that was repudiated by the Legislature in the 1981 revisions to the Penal Code.   The Horn court viewed premeditation as requiring “proof that the defendant ‘could maturely and meaningfully reflect upon the gravity of his contemplated act,’ ” (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.).   In 1981, however, the Legislature declared that such proof was unnecessary.  (See § 189 [“[t]o 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.”];  People v. Swain, supra, 12 Cal.4th at p. 608, 49 Cal.Rptr.2d 390, 909 P.2d 994 [“the characterization of premeditation upon which Horn [citation] relied ․ has itself passed into history.”].)

In the same package of revisions, the Legislature abolished the defense of diminished capacity. (§ 28;  see also § 25 [parallel abolition by ballot initiative].)   That defense had provided the logical underpinnings for the Horn court's rejection of Kynette's assertion that all conspired murders are first degree murders.  (See People v. Miller, supra, 6 Cal.App.4th at p. 878, 8 Cal.Rptr.2d 193, fn. 2 [“Horn, decided in 1974, was premised largely on the continued existence of the diminished capacity defense.”].)   Accordingly, “[i]t can be argued that the current statutory definition of premeditation is once again akin to the definition of premeditation in effect [at the time of ] Kynette [citation], namely mere ‘advanced planning of the crime.’   Thus, the rationale of Horn [citation] would no longer afford any principled basis on which to distinguish between the mental state required for conspiracy to commit murder ․ and the mental state of premeditated first degree murder.”  (People v. Swain, supra, 12 Cal.4th at p. 608, 49 Cal.Rptr.2d 390, 909 P.2d 994, italics in original.)

Against this backdrop, fully developed in the Swain opinions, we feel authorized to depart from the Horn dictum.  Section 182 does not recognize a crime of conspiracy to commit second degree murder.   Rather, it treats conspiracies to murder differently from the general formula, which keys punishment for conspiracies to commit graduated offenses to the degree conspired.   Punishment for murder conspiracies, on the other hand, is fixed at that prescribed for murder in the first degree.

D

 The jury in this case was not asked to determine the degree of the murder Cortez conspired to commit.   As we have discussed, that was entirely proper.   Appellant points out that the jury was not instructed on the meaning of premeditation and deliberation, and the instruction defining murder appeared only as an element of the attempted murder instruction.6  He argues that since the attempted murder instruction only concerned the provocative act murder count, which the jury rejected, it cannot be said that the jury found that defendant harbored a specific intent to commit premeditated murder.

 Cortez was not charged with attempted murder.   The provocative act theory of murder requires that the defendant be found to have committed an intentional provocative act, dangerous to human life, during the commission of some other crime.  (See In re Joe R. (1980) 27 Cal.3d 496, 507–508, 165 Cal.Rptr. 837, 612 P.2d 927 [the provocative act must be dangerous conduct beyond that required for the commission of the underlying crime].)   The jury was so instructed.  (See CALJIC No. 8.12.)   In this case the other crime was the attempted drive-by murder of a King Boulevard gang member.   That is why the jury was given CALJIC No. 8.66, defining attempted murder.   This instruction defines murder as “the unlawful killing of a human being with malice aforethought,” and goes on to explain that the crime of attempted murder requires a finding of express malice—a specific intent to kill.

The jury was told that to convict Cortez of conspiracy to commit murder, it had to find that he intended to and did agree to participate in a murder.   (CALJIC No. 6.10.)   In argument, the prosecutor repeatedly impressed upon the jury the importance of finding that Cortez specifically intended to kill a King Boulevard gang member.   While a murder instruction directly tied to the conspiracy charge might have been helpful, we find that the definition of murder included in the attempted murder instruction was sufficient to communicate to the jury the necessity of a finding of specific intent to kill for a conspiracy to commit murder conviction.   On a fair reading of the jury instructions, the murder component of the attempted murder instruction operated as a free standing definition of murder.  “ ‘It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court․  [Citation.]  “The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.”  [Citation.]’ ”  (People v. Crandell (1988) 46 Cal.3d 833, 874, 251 Cal.Rptr. 227, 760 P.2d 423.)   The court read the jury CALJIC No. 1.01 [Consider instructions as a whole and disregard their order] and we of course presume the jury followed the court's instructions.  (See People v. Davenport (1995) 11 Cal.4th 1171, 1210, 47 Cal.Rptr.2d 800, 906 P.2d 1068.)

 More fundamentally, it is not possible to conspire without premeditating and deliberating the target crime.7  (See People v. Swain, supra, 12 Cal.4th at pp. 608–609, 49 Cal.Rptr.2d 390, 909 P.2d 994 [current statutory definition of premeditation implies that “conspiring to murder with the requisite intent to kill is arguably functionally indistinguishable from the mental state of premeditating the target offense of murder.”];  id. at p. 613, 49 Cal.Rptr.2d 390, 909 P.2d 994 (conc. opn. of Mosk, J.) [premeditated intent to kill “is present in the context of a conspiracy [to commit murder], practically by definition․”].)  Accordingly, in the case of conspiracy to commit murder it is unnecessary to instruct on those mental states.

II

Instruction on Implied Malice

 The reversal in Swain occurred because the jury had been instructed on both express and implied malice, and it could not be determined from its general verdicts whether the jury had found the requisite intent to kill.   Because the jury in this case also was instructed on express and implied malice, appellant argues, “Swain compels reversal here.”   We briefly revisit the facts of Swain to explain why we disagree with this contention.

In Swain, the defendants were charged with murder and conspiracy to commit murder, each charge arising out of a drive-by shooting in which a young boy was killed.   One defendant, Swain, defended on mistaken identity;  the other, Chatman, on self-defense and imperfect self-defense.   The jury was instructed that murder requires a finding of either express or implied malice.   The jury convicted Chatman of second degree murder and conspiracy to commit second degree murder;  it convicted Swain only of conspiracy to commit second degree murder.  (People v. Swain, supra, 12 Cal.4th at pp. 597–598, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

The Supreme Court reversed these convictions because the general verdicts returned did not conclusively demonstrate that the jury found the specific intent to kill necessary to support a conviction of conspiracy to commit murder.   For all that appeared, the jury could have followed the trial court's instructions and yet convicted on a theory of implied malice.  (People v. Swain, supra, 12 Cal.4th at p. 607, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

In our case, the jury was told that on one count—the conspiracy to murder a King Boulevard gang member in a drive-by shooting—it could convict only if it found both an agreement to kill and a specific intent to kill.   On a separate count—the provocative act murder of Corletto—it could convict only if it found malice implied from the doing of an intentional provocative act that resulted in a death.   Unlike Swain, the implied malice instruction did not relate to the target crime of the conspiracy.   The jury was properly told that provocative act murder requires a finding of malice implied from defendant's intentional commission of a provocative act (see People v. White (1995) 35 Cal.App.4th 758, 768, 41 Cal.Rptr.2d 510 [“provocative act murder is a species of implied malice murder”] ), but it was never told that provocative act murder could be the object of the alleged conspiracy.

The prosecutor reinforced this distinction in his summation to the jury.  “To convict on conspiracy [you must find an overt act committed] with the intent to kill somebody” but in provocative act murder “the malice is implied based on your act.”   Furthermore, the prosecutor repeatedly urged the jury to analyze the two counts separately and to recognize that each had different elements:  “I am hoping that each and every one of you, if you take nothing else in [from my closing,] will take this in․  There are two separate counts․  The conspiracy and the elements and what it takes to prove the conspiracy is very different [from what it takes to prove the] provocative act.   They don't go together.   You don't consider them together.   Each count is to be considered separately.”

It may have been helpful if the trial court had sequenced the instructions so as to emphasize the inapplicability of the implied malice instruction to the jury's finding of malice necessary for conspiracy to commit murder.   Nevertheless, given the clarity of the trial court's requirement that the jury find specific intent to kill in order to convict for conspiracy, the inclusion of CALJIC No. 1.01 [“[t]he order in which the instructions are given has no significance ․”], and the prosecutor's responsible clarification of the issue for the jury at argument, we find no error.  (Cf. People v. Allison (1989) 48 Cal.3d 879, 906, 258 Cal.Rptr. 208, 771 P.2d 1294 [“[v]iewing the instructions and arguments as a whole, we are satisfied that the jury was not misled․”].)

 For the reasons we have stated, we conclude that no error occurred.   Even if appellant were correct, however, any error would have been harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   The jury heard no evidence supporting an implied malice theory of conspiracy to commit murder, and it was not invited to convict on such a theory by the trial court or the prosecution.   Cortez testified at trial that he agreed to do a drive-by shooting and intended to kill a King Boulevard gang member.   Even if the jury completely accepted Cortez's testimony, it would have properly convicted him of conspiracy to commit murder on an express malice theory.

III

CALJIC No. 6.20

Appellant next contends that CALJIC No. 6.20 8 did not adequately inform the jury that appellant's burden in establishing the defense of withdrawal was merely to raise a reasonable doubt as to whether or not he had withdrawn from the conspiracy.   He argues the trial court had a sua sponte duty to so instruct.   There are two problems with this assertion.

 On the facts of this case, withdrawal was not a viable defense.  “[O]nce an overt act has been committed in furtherance of the conspiracy the crime of conspiracy has been completed and no subsequent action by the conspirator can change that.”  (People v. Sconce (1991) 228 Cal.App.3d 693, 702, 279 Cal.Rptr. 59.)   Cortez testified that he and Corletto agreed to kill a King Boulevard gang member, got into a stolen car with a loaded handgun, and drove around attempting to enlist other Krazy Kats in their plan.   Even if the jury believed Cortez withdrew at that point, once it found true the completion of an overt act it was obligated to find Cortez guilty of conspiracy to commit murder.  (§ 182, subd. (b).)  Withdrawal in this situation would have shielded appellant from liability if a co-conspirator had gone forward with the murder, but not from liability for the crime of conspiracy itself.  (People v. Hill (1992) 3 Cal.App.4th 16, 25, 4 Cal.Rptr.2d 258 [“[t]he conspirators' abandonment of the agreement to murder would preclude conviction for conspiracy to commit murder only if such abandonment precedes the commission of an overt act by a conspirator in furtherance of the object of murder.”].)

 Furthermore, appellant did not request such an instruction at trial.   He cites numerous cases informing us that his burden was merely to raise a reasonable doubt in the minds of the jury of his “withdrawal.”   But he cites none asserting that CALJIC No. 6.20 or 2.90 fails to make this clear.   We find no sua sponte duty to give what we see as a pinpoint instruction linking the burden of proof to the specific issue of withdrawal.   While the trial court is required to “instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case,” (People v. Montoya (1994) 7 Cal.4th 1027, 1047, 31 Cal.Rptr.2d 128, 874 P.2d 903), in the present case it did that.   The jury was instructed on the issue of withdrawal (CALJIC No. 6.20) and on the burden of proof (CALJIC No. 2.90).   It was also told to consider the instructions as a whole, (CALJIC No. 1.01), and that “each fact or circumstance upon which [an inference of guilt] necessarily rests must be proved beyond a reasonable doubt.”  (CALJIC No. 2.01.)   In addition, while arguing the firearm allegation, the prosecutor told the jury “this [allegation], like everything else, must be proved beyond a reasonable doubt․”  The jury could not have been confused.

IV

CALJIC No. 2.90

 Finally, appellant argues that the current version of CALJIC No. 2.90, which defines reasonable doubt in terms of the presence or absence of an “abiding conviction” and does not use the word “certainty,” is unconstitutionally vague.   We join the other appellate courts that have considered and rejected this argument.   The instruction is a verbatim adoption of language recommended by our Supreme Court in People v. Freeman (1994) 8 Cal.4th 450, 504, footnote 9, 34 Cal.Rptr.2d 558, 882 P.2d 249.  (See People v. Light (1996) 44 Cal.App.4th 879, 887–889, 52 Cal.Rptr.2d 218;  People v. Torres (1996) 43 Cal.App.4th 1073, 1078, 51 Cal.Rptr.2d 77.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   The provision of section 189 making any murder “perpetrated by means of discharging a firearm from a motor vehicle ․” murder of the first degree was added to the code after these shootings, and thus has no bearing on this case.

2.   This count was ultimately dismissed on motion by the People.   The street gang enhancements were abandoned during trial.

3.   No issue is presented as to the application of the arming enhancement to conspiracy, which is a continuing crime, ongoing when the arming occurred.  (See People v. Mares (1975) 51 Cal.App.3d 1013, 1022, 124 Cal.Rptr. 718.)

4.   Penal Code section 182 provides in relevant part:  “If the [conspired] 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.”

5.   As the Miller court noted, the crimes in that case occurred before the enactment of the 1981 amendments to the Penal Code affecting the mental element of premeditation and what had become the “diminished capacity” defense.   As a result, and as we shall discuss, the court's analysis was predicated on legal assumptions no longer valid.  (6 Cal.App.4th at p. 878, fn. 2, 8 Cal.Rptr.2d 193.)

6.   Our record contains a copy of CALJIC No. 8.10 [defining murder], with a history sheet declaring it was “given as modified” to the jury.   Because this instruction was not read at trial, and because neither party refers to it in briefing, we assume for purposes of this appeal that it was not seen by the jury.

7.   We observe that in People v. Miller (1996) 46 Cal.App.4th 412, 53 Cal.Rptr.2d 773 , a case with superficial similarities to this one, another appellate panel found the following instructional deficiencies to be reversible error in the context of “conspiracy to commit willful, deliberate and premeditated murder”:  (1) omission of the “with the further specific intent to commit such offense” language from CALJIC No. 6.10;  and (2) failure to give either a free-standing murder or premeditation and deliberation instruction.   In Miller the conspiracy appears to have been charged as a “conspiracy to commit willful, deliberate and premeditated murder,” (46 Cal.App.4th 412, 53 Cal.Rptr.2d 773) and the trial court appears to have “expressly limited” certain instructions to certain charges.  (Id. 53 Cal.Rptr.2d at p. 780.)   That did not happen in the present case.

8.   CALJIC No. 6.20 provides:  “Any member of a conspiracy may withdraw from and cease to be a party to the conspiracy, but [his] liability for the acts of [his] co-conspirators continues until [he] effectively withdraws from the conspiracy.  [¶] In order to effectively withdraw from a conspiracy, there must be an affirmative and bona fide rejection or repudiation of the conspiracy which must be communicated to the other conspirators of whom [he] has knowledge.  [¶] If a member of a conspiracy has effectively withdrawn from the conspiracy [he] is not thereafter liable for any act of the co-conspirators committed subsequent to [his] withdrawal from the conspiracy, but [he] is not relieved of responsibility for the acts of [his] co-conspirators committed while [he] was a member.”

EPSTEIN, Acting Presiding Justice.

HASTINGS and BARON, JJ., concur.