PEOPLE v. ARMIGO (1998)

In this case we conclude there exists a crime of conspiracy to commit express malice second degree murder.

Defendants and appellants Angel Manuel Armigo and Hector Salsa Avila were found guilty of conspiracy to commit second degree murder.   Armigo was found guilty of attempted second degree murder, Avila of being an accessory to attempted murder.   It was found true Armigo used a deadly weapon within the meaning of Penal Code 2 section 12022, subdivision (b).   In counts arising from a separate incident, Avila was found guilty of possession of a firearm by one also possessing a controlled substance, possession of a controlled substance for sale, possession of a controlled substance and resisting arrest.   It was also found true Avila was, with regard to the possession for sale offense, armed with a firearm within the meaning of section 12022, subdivision (c).

I

FACTSA. Prosecution Case1. March 2, 1995

On March 2, 1995, at about 2:30 a.m., Rodney Gay and his friends Nelson Quiles and Omar Johnson were making a purchase at a Seven-Eleven convenience store in Oceanside.   The three men are black.   Quiles was a member of the Deep Valley Crips, a local gang;  Johnson was associated with the gang.   While they were in the store, Armigo entered, asked for a “squeezy,” and was told by a clerk the store did not have one.   Before leaving, Armigo and Quiles “mad dogged” each other, i.e., stared at each other in a threatening manner.

Armigo went outside to a Honda parked at the store's gas pumps where Avila and another Hispanic man were standing.   Armigo and Avila were documented members of Mesa Loco, a local Hispanic gang.   The three conferred for a short time.   As they did so, Gay and his companions walked out of the store.   Armigo, Avila and the third man walked toward them.   One of the Hispanic men yelled:  “Hey, where you all from.”   Avila called out:  “Fuck Crips.   Fuck Crips.   Fuck Deep Valley,” and “Fuck D.V.C., D.V.C. Killer.”   Avila transferred a handgun from one pocket to another.   Armigo opened a folding knife.   Gay and his companions ran.

As Armigo and the third Hispanic man chased Gay, Avila returned to the car, got in and followed.   When Armigo and the third man caught up to Gay, Armigo stabbed him repeatedly, shouting:  “Fuck D.V.C. This is my turf.   Fuck D.V.C.” As Gay was being stabbed, Avila arrived in the car.   Avila yelled:  “Come on.   Fuck that mother.   Fuck him.   Come on.   Let's go.   Let's go.”   When an onlooker yelled the police were coming, Armigo and his companion got into the car and departed.   Gay suffered 16 stab wounds but survived.

The Mesa Loco gang fights black gangs over race and turf.   The Seven-Eleven where the two groups met is territory disputed by the Mesa Locos and Crips.   Violence can occur between gang members merely because they cross paths and no specific precipitating event or motivation is required.

2. March 29, 1995

On March 29, 1995, at approximately 11:20 a.m., Avila was seen by deputy sheriffs walking down the middle of a street in San Marcos.   After being stopped, Avila ran but was eventually apprehended after a lengthy chase.   A loaded handgun was found in his jacket, a baggie containing 23.4 grams of methamphetamine was found in his pocket as well as $322 in various denominations.

B. Defense

1. Armigo

Armigo presented evidence that he was not a gang member and was at home at the time of the assault on Gay.

2. Avila

After his arrest, Avila admitted being at the Seven-Eleven store in his Honda the night of the stabbing but denied any involvement in the crime.

II

DISCUSSIONA. Conspiracy to Commit Second Degree Murder

In People v. Swain (1996) 12 Cal.4th 593, 49 Cal.Rptr.2d 390, 909 P.2d 994, the court held there is no crime of conspiracy to commit implied malice second degree murder.   Citing Swain, appellants argue they could not be convicted of conspiracy to commit second degree express malice murder since that crime does not exist.

The trial court instructed the jury it could return a verdict of either conspiracy to commit second degree murder, based on express malice, i.e., the intent to kill, or conspiracy to commit first degree, deliberate and premeditated, murder.   Both appellants were found guilty of conspiracy to commit second degree murder.   We conclude the jury was properly instructed.³

1. Background

a. Swain Majority Opinion

The issue of whether there exists a crime of conspiracy to commit second degree murder was framed, but not decided, in People v. Swain, supra, 12 Cal.4th 593, 49 Cal.Rptr.2d 390, 909 P.2d 994.   The issue in Swain was whether a conspiracy to commit murder could exist when the required finding of malice aforethought was based not on express malice, i.e., the intent to kill, but on implied malice, i.e., a killing resulting from an intentional act dangerous to human life done with knowledge of the danger to, and with conscious disregard for, human life.  (Id. at pp. 600-602, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   The court concluded no such specie of conspiracy exists.

 A conspiracy exists when two or more persons agree to commit any crime and there is an overt act in furtherance of that agreement.  (§ 182.)   A conspiracy requires two specific intents:  first, the intent to agree;  and, second, the intent to commit the target offense.  (People v. Swain, supra, 12 Cal.4th at pp. 599-600, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

The court concluded the intent requirement of conspiracy and the nature of implied malice murder are in fundamental conflict.   While a killing is the core of the corpus delicti of murder, implied malice murder requires no intent to kill.   It would be illogical, therefore, to convict a party of conspiracy to commit implied malice murder since by definition there was never an agreement to kill.  (People v. Swain, supra, 12 Cal.4th at pp. 602-603, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

Having so decided, the court discussed at length but left unanswered whether there exists a crime of conspiracy to commit second degree express malice murder.  (People v. Swain, supra, 12 Cal.4th at pp. 608-610, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

The court traced the problem to its 1940 opinion in People v. Kynette (1940) 15 Cal.2d 731, 104 P.2d 794, where it stated:  “[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.”  (Id. at p. 745, 104 P.2d 794.) ⁴

At the time of Kynette, section 182 stated a criminal conspiracy was “punishable in the same manner and to the same extent as in this code provided for the punishment of the commission of the said felony or act, respectively.”

In 1955 the Legislature amended the punishment provisions of section 182.   While retaining the basic concept that a criminal conspiracy is punished in the same manner as the target offense, the Legislature added the following:  “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 such 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.”  (Stats.1955, § l, ch. 660, p. 1155.)

In 1974 the Court in People v. Horn (1974) 12 Cal.3d 290, 115 Cal.Rptr. 516, 524 P.2d 1300, disapproved Kynette.  (Id. at p. 301, fn. 8, 115 Cal.Rptr. 516, 524 P.2d 1300.) In Horn the defendants were convicted of conspiracy to commit first degree murder.   The issue was whether the trial court erred in refusing to instruct concerning the lesser included offense of conspiracy to commit voluntary manslaughter.   The requested instruction was based on evidence suggesting that at the time of their agreement, the defendants' mental capacity was diminished.  (Id. at p. 293, 115 Cal.Rptr. 516, 524 P.2d 1300.)

Horn was decided at a time when the concept of diminished capacity was in full flower.   The court noted that conspiracy is a specific intent crime which requires the defendant harbor not only the intent to agree but the intent or mental state required for the target offense.   The court essentially held, over the dissent of Justices Mosk and McComb, that in determining the target offense agreed upon, and, thus, ultimately the punishment to be imposed, the trier of fact could consider the capacity of the conspirators to harbor the intent or mental state of the alleged target offense.   If that capacity was absent, the conspirators could be found guilty of a conspiracy to commit a lesser degree of or a lesser offense of the target crime.  (People v. Horn, supra, 12 Cal.3d at pp. 295-299, 115 Cal.Rptr. 516, 524 P.2d 1300.)

In a footnote the court added that Kynette's pronouncement that a conspiracy to commit murder is necessarily murder in the first degree was inconsistent with the later added language of section 182 requiring the trier of fact to determine the degree of the target offense.   The court stated the language “plainly” authorized the trier of fact to return a verdict finding conspiracy to commit murder in the second degree.   It noted the section states it is only when the trier of fact fails to return a verdict on degree that a conspiracy to commit murder must be punished as one to commit murder in the first degree.  (People v. Horn, supra, 12 Cal.3d at p. 298, fn. 5, 115 Cal.Rptr. 516, 524 P.2d 1300.)

Swain noted that after Horn the defense of diminished capacity was abolished.  (People v. Swain, supra, 12 Cal.4th at p. 608, 49 Cal.Rptr.2d 390, 909 P.2d 994.)   With particular relevance to the issue of the existence of a crime of conspiracy to commit express malice second degree murder, the court noted Horn distinguished its legal setting from that in Kynette, by observing that the element of deliberation and premeditation had changed.   While the court in Kynette might state that the agreement to murder necessarily involves deliberation and premeditation, the court in Horn could not since the existing definition of deliberation and premeditation required the defendant maturely and meaningfully reflect upon the gravity of his or her act.  (See People v. Horn, supra, 12 Cal.3d at p. 298, 115 Cal.Rptr. 516, 524 P.2d 1300.)  Swain noted that after Horn, section 189 was amended to specifically exclude as an element of premeditation and deliberation that the defendant maturely and meaningfully reflected on the gravity of his or her act (stats.1981, ch. 404, § 7, p. 1593).  (People v. Swain, supra, 12 Cal.4th at p. 608, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

Swain stated that with the various changes in the law concerning diminished capacity after the decision in Horn, it was arguable that Kynette's conclusion that the act of agreeing to murder was the functional equivalent of deliberation and premeditation was again viable.  (People v. Swain, supra, 12 Cal.4th at p. 608, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

The court also discussed whether Horn misinterpreted the Legislature's ambiguous 1955 amendment to the punishment provisions of section 182.   The court noted it is possible those punishment provisions merely codify Kynette's conclusion that any conspiracy to commit murder is necessarily a conspiracy to commit murder in the first degree.  Swain notes it seems odd that the Legislature would require, when the trier of fact failed to find the degree of a target offense, that the punishment imposed for the conspiracy would be for the lesser degree as to all felonies except murder.   Still, Swain notes section 182 appears to accept the existence of a crime of conspiracy to commit second degree murder.   The court noted in any case the subject language in Horn was dictum.  (People v. Swain, supra, 12 Cal.4th at pp. 609-610, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

It was unnecessary in Swain to determine whether there exists a crime of conspiracy to commit second degree murder and the court left resolution of that issue for another day.

b. Justice Mosk's Concurring Opinion

Justice Mosk, joined by Justice Arabian, concurred in the court's conclusion there was no crime of conspiracy to commit implied malice murder but believed the court should go further and declare there was also no crime of conspiracy to commit second degree express malice murder.

Justice Mosk expresses the opinion that while strictly speaking the crime of conspiracy to commit murder does not require deliberation and premeditation, as a practical matter, such state of mind always exists in a conspiracy to commit murder since the intent required for a conspiracy cannot arise suddenly but must be formed and then shared by at least two persons.  (People v. Swain, supra, 12 Cal.4th at pp. 611-613, 49 Cal.Rptr.2d 390, 909 P.2d 994 (conc. opn. of Mosk, J.).)

For Justice Mosk what force remains in Horn is in its footnote interpreting the punishment provisions of section 182 as a declaration of the existence of a crime of conspiracy to commit second degree murder.   That interpretation of the section, however, led, in Justice Mosk's mind, to unacceptable results since it is at odds with the general rule stated in section 182, as well as sections 1157 and 1192, that if the degree of an offense is not stated, it is presumed to be the lesser.  (People v. Swain, supra, 12 Cal.4th at pp. 613-615, 49 Cal.Rptr.2d 390, 909 P.2d 994 (conc. opn. of Mosk, J.).)

Justice Mosk also notes that as a historical matter it is unlikely the Legislature would state that a crime of conspiracy to commit second degree murder exists when 15 years before Kynette held it did not.   Further, Justice Mosk notes that in 1955 a defendant could be sentenced to death for the crime of conspiracy to commit murder.   He concludes it is unlikely the Legislature would expose a person, who might have conspired only to commit a second degree murder, to that penalty solely because the trier of fact could not or did not determine the degree of the “conspired” murder.   (People v. Swain, supra, 12 Cal.4th at p. 617, 49 Cal.Rptr.2d 390, 909 P.2d 994 (conc. opn. of Mosk, J.).) ⁵

Justice Mosk concluded Horn should be overruled and Kynette followed.

c. Justice Kennard's Concurring Opinion

While agreeing with the majority that there is no crime of conspiracy to commit implied malice murder, Justice Kennard concluded there is a crime of conspiracy to commit second degree express malice murder.

In reviewing the history of the issue, Justice Kennard agrees with the rest of the court that Horn's analysis based on concepts of diminished capacity was no longer applicable.   She concludes, however, the Horn court correctly interpreted the 1955 changes to the punishment provisions of section 182.   (People v. Swain, supra, 12 Cal.4th at pp. 623-624, 49 Cal.Rptr.2d 390, 909 P.2d 994 (conc. opn. of Kennard, J.).)

Justice Kennard states:  “The degree of the murder conspiracy depends on whether the conspirators' agreement evidences a willful, deliberate, premeditated intent to kill of the type that distinguishes first degree murder or instead reflects only a bare intent to kill lacking in premeditation and deliberation.”  (People v. Swain, supra, 12 Cal.4th at p. 624, 49 Cal.Rptr.2d 390, 909 P.2d 994, fn. omitted (conc. opn. of Kennard, J.).)

Justice Kennard interprets Justice Mosk's position to be that the crime of conspiracy to commit murder is a unitary one which is complete when two or more persons join together in a common endeavor to kill unlawfully.   So interpreted, she notes it is of no consequence with regard to punishment that one set of conspirators premeditated and deliberated their intent while another did not.   Justice Kennard notes such a position leads to a series of unacceptable consequences;  for example, that conspirators who agree to kill without deliberation and premeditation but fail to accomplish their object are subject to a greater punishment than if they accomplished their intent and committed a second degree murder.  (People v. Swain, supra, 12 Cal.4th at pp. 625-628, 49 Cal.Rptr.2d 390, 909 P.2d 994 (conc. opn. of Kennard, J.).)

Justice Kennard concluded a crime exists of conspiracy to commit second degree murder.

2. Discussion

We agree with Justice Kennard.⁶

 While there is much that is unclear in section 182, the punishment provisions of the section make clear the Legislature means to treat the crime of conspiracy as one having gradations of seriousness depending on the seriousness of the target offense.   The gradations the section recognizes are not simply between crimes but between degrees of crimes.   If it is logically and psychologically possible to agree to commit murder without the conspirators premeditating and deliberating the required intent to kill, i.e., there does exist a distinct crime of conspiracy to commit express malice second degree murder, then section 182 would be illogical and internally inconsistent if it required all conspiracies to commit murder be punished as conspiracies to commit murder in the first degree.   The Legislature would not intend such a result.

The crucial question is whether it is possible to agree to kill without premeditating or deliberating.   We conclude it is possible.

In the words of CALJIC No. 8.20, premeditated means “considered beforehand” and deliberate means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.”  (See People v. Velasquez (1980) 26 Cal.3d 425, 435, 162 Cal.Rptr. 306, 606 P.2d 341;  People v. Thomas (1945) 25 Cal.2d 880, 898-899, 156 P.2d 7.)

We conclude that while an agreed course of action is necessarily premeditated, it is not necessarily deliberated.   Rash persons can enter into rash agreements to do rash things.   Two brothers deeply emotionally offended on seeing an affront to their mother can, in an instant, agree to kill the affrontor.   In so doing, they enter into a conspiracy to kill that may, because of a lack of careful thought or a failure to weigh the consideration for or against the agreed upon action, not be deliberate and not be a conspiracy to commit murder in the first degree.

While we agree that most conspiracies to commit murder involve deliberation and premeditation, it is simply not the case that all do.   We, therefore, deliberately and premeditatedly move to Justice Kennard's side of the room and join her in concluding there exists a crime of conspiracy to commit express malice second degree murder.⁷

B.-H.*

III

DISPOSITION

Armigo's abstract of judgment is ordered amended to indicate his prison term for attempted murder, count two, is stayed pursuant to section 654.   Avila's abstract of judgment is ordered amended pursuant to the same code section to indicate his prison term for being an accessory to murder is stayed.   In all other respects, the judgments are affirmed.

FOOTNOTES

FN2. All further statutory references are to the Penal Code..  FN2. All further statutory references are to the Penal Code.

3.   We note after Swain, two Courts of Appeal concluded there is no crime of conspiracy to commit second degree murder.   Review has been granted in both cases.  (People v. Santibanez, review granted Jan. 22, 1997, S057248;  People v. Cortez, review granted in part Oct. 16, 1996, S055733.)

4.   Interestingly, the court made this statement in the context of a discussion of whether the trial court properly excluded prospective jurors based on their conscientious objections to the death penalty, a punishment that in 1940 could be imposed for conviction of conspiracy to commit first degree murder.  (People v. Kynette, supra, 15 Cal.2d at pp. 744-745, 104 P.2d 794.)

5.   Justice Mosk accomplishes his interpretation of section 182 by adding to the section the following italicized words:  “ ‘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, except in the case of murder.   If the degree is not so determined, the punishment for conspiracy to commit such 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.’ ”  (People v. Swain, supra, 12 Cal.4th at p. 617, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

6.   We observe that courts and commentators have been less than complimentary about the crime of conspiracy.  “The criticism which commentators have voiced most often and most strongly is that there is an inherent vagueness in the crime of conspiracy․   And Justice Jackson, in his oft-quoted concurring opinion in Krulewitch v. United States, referred to conspiracy as an ‘elastic, sprawling and pervasive offense, ․ so vague that it almost defies definition [and also] chameleon-like [because it] takes on a special coloration from each of the many independent offenses on which it may be overlaid.’ ”  (Vol. 2, LaFave and Scott, Substantive Criminal Law, § 6.4, p. 64, fn. omitted.)   Commentators have noted:  “[T]he vagueness stems from ․ the uncertainty over what is sufficient to constitute the agreement and what attendant mental state must be shown.”   (Ibid., fn. omitted.)

7.   We readily concede that concluding there exists a crime of conspiracy to commit second degree murder makes for the anomalous result that under section 182 if a trier of fact in a murder conspiracy case fails to return a finding of degree, the punishment for the conspiracy is set, not at that for second degree murder, but for first degree murder.   We find this possibility no less distressing, however, than a requirement that every conspiracy to commit murder, whatever the state of mind of the conspirators, and whatever the degree of the completed homicide, be punished as a conspiracy to commit first degree murder.It is unnecessary we address in this opinion the anomaly of requiring all conspiracies to commit murder be punished as conspiracy to commit first degree murder when the trier of fact fails to make a finding of degree and we express no position on the legality of such a rule.

FOOTNOTE.   See footnote 1., ante.

BENKE, Associate Justice.

KREMER, P.J., and HADEN, J.**, concur.