PEOPLE v. SWAIN (1993)

Jamal K. Swain and David Chatman (hereafter individually and jointly appellants) were convicted of conspiracy to commit second degree murder and other crimes, after the death of a 15–year–old boy in a drive-by shooting.

I. CONTENTIONS

A. Appeal **

B. Cross-appeal

The People raise an interesting argument by cross-appeal, contending that the trial court improperly sentenced appellants to an indeterminate sentence of only 15 years to life for conspiracy to commit second degree murder.   The People assert that under Penal Code 1 section 182 every conspiracy to commit murder must be punished as a first degree murder, with a sentence of 25 years to life.   We conclude the trial court acted properly and, therefore, affirm the sentences imposed on appellants.

II. FACTS AND PROCEDURAL HISTORY***

III. DISCUSSION

A.–H.†

I. The Proper Sentence for Conspiracy to Commit Second Degree Murder

 The People in their cross-appeal contend the trial court erred in sentencing appellants to only 15 years to life for conspiracy to commit second degree murder, under sections 182 and 190.   According to the People, that sentence was unauthorized, and the only authorized sentence is 25 years to life.   While there is some plausibility to the People's argument, we ultimately conclude the trial court did not err.

The parties agree this issue is controlled by the relevant provisions of section 182, although they disagree as the proper interpretation of this language, especially the language to which we add emphasis:  “(a) If two or more persons conspire:  (1) To commit any crime.  [¶] ․ [¶] They are punishable as follows:  [¶] ․ [¶] When they conspire to commit any other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony.   If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit.   If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.”

The emphasized language was added to section 182 by an amendment in 1955.  (Stats.1955, ch. 660, § 1, p. 1155.)   The People argue this language, while perhaps inartfully placed, provides that every conspiracy to commit murder, regardless of the degree of the underlying murder, should be punished as a first degree murder.   Appellants (and the trial court), by contrast, read this language as only intended to add a proviso to the final sentence of section 182 to which it was appended;  and they contend this language comes into effect only where the jury deadlocks as to the degree of the underlying murder, which did not occur here.

Fortunately for appellants, this language has been authoritatively construed by our Supreme Court.   In People v. Horn (1974) 12 Cal.3d 290, 298 and footnote 5, 115 Cal.Rptr. 516, 524 P.2d 1300, the Supreme Court rejected the People's argument and announced that the language of the 1955 amendment, according to its plain meaning as written, was simply to govern where the jury deadlocked as to the degree of the underlying murder:  “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.”  (Emphasis in original.)

The People suggest this Supreme Court analysis was a mere dictum, and we should not follow it because it wrongly interprets the statute and the Legislature's intent.   As to the first point, however, the quoted language from Horn does not appear to be a mere dictum.   Careful analysis of Horn shows the Supreme Court's interpretation of section 182 was necessary to its holding.

In Horn, the Supreme Court by judicial interpretation created the crime of conspiracy to commit second degree murder, in order to accommodate the defense of diminished capacity.   The Supreme Court, thus, had to overrule the contrary holding from its previous decision in People v. Kynette (1940) 15 Cal.2d 731, 745, 104 P.2d 794, which had opined 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.”   The Kynette holding had been based in part upon its analysis of the language of section 182, as it stood in 1940, which the Kynette court indicated would require every conspiracy to commit murder to be a first degree murder punishable by the death penalty.  (Pp. 744–745, 104 P.2d 794.)

The Supreme Court in Horn also had to deal with the troublesome language of section 182, and especially the 1955 amendment to section 182, which might be interpreted, as the People urge today and apparently urged then, to mean that all conspiracies to commit murder are to be punished as first degree murder.   The People's interpretation is made more plausible by the fact (not addressed explicitly in Horn ) that in 1955 when the amendment was enacted Kynette was still the law, and there was no such crime as conspiracy to commit second degree murder.   The legislative history of the 1955 amendment, while not as clear perhaps as one might wish, does strongly indicate that the amendment was offered in order to harmonize the trier of fact's function in setting the degree of the underlying offense with the law of conspiracy to murder as stated in Kynette, i.e., there was no need to have the trier of fact specify the degree of the murder contemplated by a conspiracy, since by definition under the law as announced in Kynette it was always murder in the first degree.

Another position, however, was taken by Justice Mosk, who dissented in Horn and was joined by Justice McComb:  “Under California law there are no degrees of conspiracy.   Defendants tried for the crime of conspiracy are either guilty as charged or not guilty;  the trier of fact has no comfortable option of reducing conspiracy to a lesser offense.”  (12 Cal.3d at p. 301, 115 Cal.Rptr. 516, 524 P.2d 1300.)   The dissenters apparently conceded the majority's interpretation of section 182 was correct, and that the trier of fact must determine the degree of the underlying murder.  (Id. at p. 302, 115 Cal.Rptr. 516, 524 P.2d 1300.)   They also conceded in passing that Kynette “Perhaps somewhat too categorically” held that any conspiracy to commit murder is a conspiracy to commit first degree murder.  (Id. at pp. 303–304, 115 Cal.Rptr. 516, 524 P.2d 1300.)   However, they contended the defense of diminished capacity could not be asserted to lower what would otherwise be a conspiracy to commit murder, to a conspiracy to commit second degree murder:  “While a vivid imagination may be able to conjure up an agreement to have a sudden quarrel, it taxes credulity to suggest a conspiracy to kill in the heat of passion.”  (Id. at p. 304, 115 Cal.Rptr. 516, 524 P.2d 1300.)

 Our review of the Horn decision indicates its interpretation of section 182, whether correct or not, was a holding which was necessary to the result, and not a mere dictum.   If section 182 had had the meaning ascribed to it now by the People, the Horn court could not have created a lesser offense of conspiracy to commit second degree murder in order to accommodate the defense of diminished capacity.   This fact is made even more plain by Justice Mosk's trenchant dissent.   Further, it is perhaps significant that even the dissenters in Horn were willing to concede the correctness of the majority's interpretation of section 182.   In any event, we are bound by the law as stated in the holdings of our Supreme Court, however reasoned.   (See People v. Triggs (1973) 8 Cal.3d 884, 890–891, 106 Cal.Rptr. 408, 506 P.2d 232;  Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

Thus it is unavailing, even if true, for the People to suggest that Horn was wrongly decided, has been extensively criticized, and has been partially undermined by the statutory abrogation of the defense of diminished capacity.  (See People v. Miller (1992) 6 Cal.App.4th 873, 878–879 & fn. 2, 8 Cal.Rptr.2d 193.)   Further, we should add that the Supreme Court's interpretation of section 182, though “Perhaps somewhat too categorically” stated in the reasoning of the court (People v. Horn, supra, 12 Cal.3d at p. 303, 115 Cal.Rptr. 516, 524 P.2d 1300 (dis. opn. of Mosk, J.)), is not unreasonable.   Even if, as the People suggest, the 1955 Legislature sought to harmonize the law with Kynette in the phrase added to section 182, it appears that this language is also readily susceptible of the meaning which the Supreme Court derived from its plain language and odd placement within the section.   The Legislature may have simply intended to allow a jury to exercise some mercy in murder conspiracy cases by specifying a lesser degree for the underlying murder, while mandating application of the first degree murder penalty if the jury did not decide that the degree of the conspiracy murder was less than first degree.

 The People suggest that Horn 's interpretation of the statute is unconstitutional, contending due process is violated by imposing a greater punishment on defendants as to whom the jury cannot agree to exercise mercy.   The argument is doubly misplaced here.   First, we cannot understand how the due process rights of these specific appellants were violated when they received more lenient sentences than would other persons.   Second, we cannot understand how a jury's exercise of mercy as to certain defendants burdens the due process rights of those as to whom another jury cannot agree to show mercy.   Of course, if the jury's failure to determine the degree of the underlying murder is traceable to instructional error (as in failing to instruct the jury to determine the issue), then People v. Alexander (1983) 140 Cal.App.3d 647, 666, 189 Cal.Rptr. 906 suggests the court should modify the sentence to reflect that imposed for conspiracy to commit second degree murder.

At any rate, there has certainly been no groundswell of opposition to the Horn interpretation of section 182;  and the Legislature has not changed the language relied upon in the Horn decision, while amending other parts of section 182.   As of the time of the trial in Horn, one authorized penalty for first degree murder was death.  (People v. Horn, supra, 12 Cal.3d at p. 295, fn. 2, 115 Cal.Rptr. 516, 524 P.2d 1300.)   If one could arguably be sentenced to death for any conspiracy to commit murder, even one which was foiled and did not result in a killing, this may explain in part the Supreme Court's interpretation of section 182 in a way which would mitigate the rather draconian statutory scheme which is envisioned by the People.

Finally, the Horn decision creating a crime of conspiracy to commit second degree murder has been extensively relied upon in the intervening years, as in the decision of this district in People v. Alexander, supra, 140 Cal.App.3d at pages 663–666, 189 Cal.Rptr. 906.   The Horn decision itself underlies the holding in Alexander that conspiracy to commit second degree murder does not require an intent to kill, and may be based upon merely wanton acts.  (P. 665, 189 Cal.Rptr. 906.)   If Horn had instead held that the penalty for all conspiracies to commit murder was the same as for first degree murder, it seems unlikely this penalty could be imposed without an intent to kill.  (Cf. People v. Alexander, supra, 140 Cal.App.3d at pp. 664–666, 189 Cal.Rptr. 906.)   In these circumstances, we are especially loathe to upset longstanding precedent, and believe any reform of the type urged by the People must come from legislation or action by our Supreme Court.

We conclude the trial court properly followed People v. Horn, supra, 12 Cal.3d at page 298, footnote 5, 115 Cal.Rptr. 516, 524 P.2d 1300, in deciding that the crime of conspiracy to commit second degree murder is presently punishable under sections 182 and 190 by a sentence of 15 years to life.

IV. DISPOSITION

The judgments of conviction and sentences are affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

FN1. Unless otherwise indicated, all subsequent statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all subsequent statutory references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

PETERSON, Presiding Justice.

KING and HANING, JJ., concur.