PEOPLE v. BUSCHBOM (1986)

Robert Craig Buschbom appeals after a jury convicted him on one count of conspiracy to commit murder (Pen.Code,1 §§ 182, subd. (1) and;  187) and one count of attempted murder (§§ 187 and 664).   Allegations that Buschbom personally used a firearm (§ 12022.5) and inflicted great bodily injury (§ 12022.7) were found to be true as to both counts.   In a separate proceeding, the trial court found that Buschbom suffered a prior felony conviction and prison term within the meaning of section 667.5, subdivision (b) and suffered two prior serious felony convictions within the meaning of section 667, subdivision (a).

FACTUAL AND PROCEDURAL BACKGROUND

Lowell Saunders and Robert Andrews were co-owners of two businesses, Ace Auto Sales and Hughes Towing, both located in Oceanside.   In January 1983, Andrews approached Neal Stanley, a driver for Hughes Towing, about the possibility of killing Saunders.   Andrews explained he needed money and wanted to sell the company.   He said he couldn't trust Saunders and thought Saunders was stealing from the company.   He also thought Saunders would try to kill him.

Andrews offered Stanley $10,000 to commit the killing.   Stanley refused.   Instead, Stanley suggested he and Andrews could make money in a drug deal.   Stanley, a former Iowa resident, devised a scheme which would involve buying marijuana in California and selling it in Iowa.   For this purpose, Stanley contacted defendant Robert Buschbom in Iowa.

Buschbom agreed to come to California to discuss the deal.   When he arrived, he met with Andrews and Stanley.   Andrews again brought up the subject of killing Saunders and asked Buschbom if he would do it for $10,000.   Buschbom agreed but said he would need some money up front.   Andrews then gave him $1,000 as an advance payment.

Later, after having been given Saunders' address by one of Andrews' friends, Buschbom and Stanley tried unsuccessfully to locate Saunders' house.   Buschbom remained in and around Oceanside for the next several days.   But after expressing to Stanley his concern that he had been seen in the area, he left and returned to Iowa.

In April 1983 Buschbom married Cheryl Doherty in Iowa.   Stanley spoke with Buschbom by phone on several occasions before and after the wedding.   They discussed both the drug deal and the shooting of Saunders.

Stanley flew to Iowa in mid-April.   Before that, Andrews gave him $2,000 for the purpose of killing Robert Morgan.   Morgan was the estranged husband of Judy Morgan, with whom Andrews was then living.   The Morgans were embroiled in a custody dispute over the couple's children.   Robert was attempting to have kidnapping charges filed against Judy after she took the children to California from South Carolina where they had been living with him.   In addition to the $2,000, Stanley took with him some pictures and a map which had been provided by Judy Morgan.

When Stanley arrived in Iowa he discussed going to South Carolina with Buschbom.   Stanley gave Buschbom approximately $275 to buy a handgun.   They agreed to buy a gun with three interchangeable barrels so that different barrels could be used in shooting both Robert Morgan and Lowell Saunders.   The gun was purchased from Jimmy Pitts, who identified the defendant and his wife at trial.   He also identified a picture of Buschbom's car.

Buschbom, his wife Cheryl, and Stanley left Iowa in late April for South Carolina.   On the way, they stopped in Missouri to pick up money which had been wired to them by Andrews.   The money was in the form of three money orders made payable to Cheryl Doherty.   During the drive to South Carolina, Stanley mentioned they were going there to kill Morgan and Buschbom agreed.

On arrival in Pickens, South Carolina, the trio located Morgan's house but could not find Morgan.   Stanley phoned Andrews in California to report and to request more money, which Andrews sent.   On one occasion, Cheryl phoned Morgan's house in order to lure him out to a bar where he could be shot, but Morgan was not home.

After several days, the trio left Pickens and drove to Atlanta, Georgia, where Stanley phoned Andrews.   Andrews told Stanley that Judy Morgan had been arrested and that they should not try to kill Robert Morgan because it would look suspicious.   They then headed back to Oceanside, stopping in Mesquite, Texas on April 30 to pick up three money orders which Andrews had wired to them.

After arriving in Oceanside, Buschbom and Cheryl met with Stanley and Andrews in a motel room where the Buschboms were staying.   Several later meetings involving the same persons also took place.   They discussed the planned shooting of Robert Morgan and Andrews' attempts to get Judy Morgan out of jail on bail.   Andrews said that as long as he didn't shoot Morgan, he might as well shoot Saunders.   He mentioned the existence of a $150,000 life insurance policy on which he would try to collect if Saunders was killed.   He again offered $10,000 to Buschbom if he would kill Saunders.   Buschbom and Stanley were also to receive secured jobs with the company “after things settled down a little bit․”  Andrews then expressed concern about Buschbom's inability to kill Saunders in January or February, but Buschbom reassured him, saying he now was “in the right state of mind to get it done.”   Andrews identified the type of car Saunders would be driving and told Buschbom it was likely that Saunders would be carrying a large amount of money which Andrews suggested would be enough to get him and Cheryl back to Iowa.   At one point it was suggested that since Saunders was a “ladies man,” Cheryl might lure him to a motel where Buschbom could shoot him.

On one occasion, Buschbom and Cheryl went to Saunders' car lot.   Buschbom instructed Cheryl to pretend she was interested in buying a car in hopes that Saunders would invite her out for a drink and later to a motel.   The plan failed when Saunders did not respond with the hoped-for invitation.

On May 9 or 10, Buschbom and Cheryl drove to San Diego.   They stopped at a costume shop so that Buschbom could buy a woman's red wig.   At about dusk on May 10, Buschbom and Cheryl drove by Lowell Saunders' house.   They then drove to a shopping center a short distance away.   Cheryl parked and Buschbom attempted to disguise himself using the red wig.   He put the gun with the four-inch barrel in the waistband of his jeans and covered it with his Levi jacket.   He also wore a red baseball cap and tennis shoes.   Buschbom then left the car while Cheryl waited.

At about 9 p.m., Lowell Saunders arrived at his home on Cregar Street.   As he walked to his front door, he was shot five times including twice in the face.   A sixth shot missed him.   Miraculously, he lived.

Cindy Gray, Saunders' next door neighbor, was in her bedroom next to Saunders' driveway when she heard the six shots.   She looked out her window and saw a man running away.   She described him as wearing jeans, a dark jacket that “looked like a Levi jacket” buttoned all the way up, and a light baseball cap.   He had long curly hair which she thought was “a blondish color.”   She identified Robert Buschbom in court as the man she saw running away from Saunders' driveway on the night of May 10.

Officer Dale Wood of the Oceanside Police Department was patrolling in the vicinity of Saunders' residence when he heard the gunshots.   As he drove to investigate, he saw a man walking approximately 50 feet in front of him.   Wood shined his spotlight on the man, who then began running.   Wood described him as being approximately six feet tall, thin, wearing a white baseball cap, a dark jacket and dark pants.   Before he could pursue, Wood received a radio dispatch concerning the shooting and responded to that call at the Cregar Street address.

Waiting at the shopping center, Cheryl testified to hearing sirens between two and two and one-half hours after Buschbom left.   Within a half-hour, Buschbom returned to the car out of breath.   He was barefoot, wore only a pair of jeans, and had no wig.   Buschbom then drove to an apartment complex adjacent to the shopping center where he and Cheryl retrieved his clothes and the gun.   They then drove to the South Carlsbad State Beach.   Buschbom started a fire and burned his tennis shoes and the wig.   He then jammed a screwdriver down the barrel of the gun.

The Buschboms then headed for Las Vegas, from where Buschbom phoned Stanley to request money to get back to Iowa.   Stanley obtained money from Andrews and sent a money order to Buschbom on May 13.   Buschbom never received the money, however, so on May 13, he sold the gun with the two remaining barrels to the Accuracy Gun Shop in Las Vegas for $125.   He and Cheryl then returned to Iowa.

DISCUSSION

Buschbom's principal arguments relate to the admissibility of evidence of the conspiracy to kill Robert Morgan, alleged instructional errors regarding degrees of murder and the mental state of malice, and the court's failure to instruct the jury that Cheryl Doherty Buschbom was an accomplice as a matter of law.   He also makes separate claims of sentencing error involving enhancements for use of a firearm, great bodily injury and prior convictions.

I

The prosecution's theory of the case was that there was one overall conspiracy to murder both Robert Morgan and Lowell Saunders.   As a result, various acts by Buschbom, Stanley and Andrews relating to the plan to kill Morgan were alleged as overt acts in the charged conspiracy to murder Saunders.   Buschbom argues that the evidence shows two very separate conspiracies to kill two different victims and, accordingly, the trial court erred in admitting evidence of the conspiracy to kill Morgan.

 The test for determining whether a series of related acts and transactions constitute a single conspiracy is whether the acts “were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.”  (Blumenthal v. United States (1947) 332 U.S. 539, 558, 68 S.Ct. 248, 257, 92 L.Ed. 154;  see also People v. Skelton (1980) 109 Cal.App.3d 691, 717–718, 167 Cal.Rptr. 636.)   In the present case, the prosecution offered no single objection of the overall conspiracy which was pleaded and we are unable to discern one from our review of the evidence presented at trial.   It is perhaps too simple to say that the object of one conspiracy was to kill Saunders while the object of the second was to kill Morgan.   Nonetheless, one can search in vain for any common motivation or purpose tying the two planned crimes together.   The scheme to murder Saunders was motivated by Andrews' greed and perhaps his distrust and fear of Saunders.   In contrast, the plan to kill Morgan arose because of Judy Morgan's child custody problems.   If there is any common thread, it is simply Andrews' propensity to resort to murder as a means of solving his personal problems.   Such a thread, however, is patently insufficient to create a single unifying conspiracy.

 There remains, however, the question whether the error in admitting evidence of the Morgan conspiracy requires reversal.   We conclude it is not reasonably probable a more favorable result would have been reached in the absence of the error.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   The critical issue in this case was the credibility of Stanley and Cheryl Buschbom.   Their testimony was the bulk of the case against Buschbom with regard to the Saunders conspiracy and the attempted murder.   They were the only persons to testify about the Morgan conspiracy.   If they were believed with regard to Saunders, their testimony regarding the plan to kill Morgan was surplusage.   If their testimony about the Saunders plot was not credible, there was no reason for the jury to give more credit to their testimony about Morgan.   In short, it is unlikely this is a case in which inadmissible “other crimes” evidence filled weaknesses in the prosecution's case.  (Compare, e.g., People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Harvey (1984) 163 Cal.App.3d 90, 208 Cal.Rptr. 910.)   The presence or absence of weaknesses depended on the jury's view of the believability of Stanley and Cheryl Buschbom.   Assuming the jurors found them credible—which they had to in order to convict—Buschbom was not prejudiced by the error.

II

Buschbom was charged with an otherwise undifferentiated “conspiracy to murder” Lowell Saunders.   The degree of the murder conspired to was not specified.   The jury was not instructed on degrees of murder and, accordingly, simply found Buschbom guilty of conspiracy to commit murder.   By operation of section 182,² this finding resulted in Buschbom receiving the same sentence as for first degree murder.   Buschbom argues the court erred in failing to differentiate between degrees of murder and specifically in failing to instruct the jury on the elements of a conspiracy to commit second degree murder.

People v. Horn (1974) 12 Cal.3d 290, 115 Cal.Rptr. 516, 524 P.2d 1300 involved application of the diminished capacity defense to the crime of conspiracy to commit murder.   Prior to Horn, the rule in California had been 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.)  Horn considered a prosecution for conspiracy to commit murder against certain defendants who argued they were so intoxicated at the time of the criminal agreement as to preclude them from premeditating the killing and harboring malice.   Because a conspiracy to commit a crime is generally punishable the same as the underlying crime if it were in fact completed, the court was concerned with the fairness and proportionality of punishing as a first degree murder a person who could only be guilty of a lesser crime if the killing had actually been accomplished:

“If, gripped by mental illness, intoxication, or heat of passion, a man kills without malice, he commits manslaughter;  it necessarily follows that if this same man, under those same circumstances, conspires to kill, he conspires to commit manslaughter.   Even though his befuddled brain still possesses the bare capacity to agree to the conspiracy, his inability to appreciate the gravity of his act, or to harbor malice aforethought compels us to classify the object of his conspiracy as a manslaughter.”  (12 Cal.3d at p. 299, 115 Cal.Rptr. 516, 524 P.2d 1300.)

 Consistent with Horn, then, the trial court should as a matter of theory have specified and instructed that Buschbom was charged with a conspiracy to commit first degree murder.   As a practical matter, however, Buschbom can only demonstrate prejudice if he can point to evidence from which a reasonable jury could have found him guilty of some lesser crime (i.e., conspiracy to commit either second degree murder or manslaughter), thus requiring the giving of instructions on the lesser offenses.  (People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1.)

 The record here is devoid of such evidence.   Arguing that all co-conspirators must agree to commit the same crime, however, Buschbom points to evidence indicating that Andrews was a heavy cocaine user and suggests the jury may have concluded he did not entertain the requisite mental state with regard to the planned killing.   Not only is such evidence insubstantial as to the potential effect of the drug on Andrews' mental state (compare People v. Hayes (1985) 172 Cal.App.3d 517, 523 and fn. 4, 218 Cal.Rptr. 362) but Andrews' mental state, whatever it was, is irrelevant on the issue of Buschbom's criminal liability.   If we posit a situation in which Andrews, by virtue of his cocaine use, did not premeditate or harbor malice but Stanley and Buschbom did, there is no reason why the same conspiracy cannot result in convictions of conspiracy to commit first degree murder for Stanley and Buschbom and conspiracy to commit voluntary manslaughter for Andrews.   The essence of a conspiracy is the agreement to commit an unlawful act.  (1 Witkin, Cal. Crimes (1963) §§ 105, 114, pp. 99, 108.)   The conspirators' differing mental states, while relevant to individual liability and punishment, do not result in a lowest common denominator effect for all participants.

Here, all of the co-conspirators agreed to kill Saunders, and there is no question but that such act is illegal.   There is thus a single chargeable conspiracy but the individual members may be punishable differently depending on their mental state with respect to the conspiracy's unlawful object.   Were the rule otherwise, the diminished mental state or even insanity of one co-conspirator would reduce or eliminate the liability of the other conspirators despite conceded proof that they individually satisfied all elements of a conspiracy to commit first degree murder.   We accordingly conclude there was no error in the trial court's failure to instruct on the lesser offense of conspiracy to commit second degree murder and conspiracy to commit voluntary manslaughter.

 In addition to the issue of omitted instructions, Buschbom also argues that the conspiracy instructions which were given were erroneous because the court failed to distinguish between the degrees of murder.   In this regard, the only difference between the instructions which were given (conspiracy to commit an undifferentiated murder) and those which should have been given (conspiracy to commit first degree murder) was the absence of instructions defining first degree murder, principally an instruction defining deliberate and premeditated murder.  (See CALJIC No. 8.20.)   Citing the rule that errors in the instructions defining elements of the offense are subject to a rule of per se reversal (see People v. Garcia (1984) 36 Cal.3d 539, 550–554, 205 Cal.Rptr. 265, 684 P.2d 826), Buschbom argues that the failure to give instructions defining first degree murder constitutes automatic reversible error.

In Garcia, supra, the Supreme Court crafted an exception to the per se rule in cases “where the parties recognized that [mental state] was in issue, presented all evidence at their command on that issue, and in which the record not only establishes the necessary [mental state] as a matter of law but shows the contrary evidence not worthy of consideration.”   We view that exception as justifying affirmance on the facts of the case.  Horn, decided 10 years before the trial in this case, established the proposition that a defendant co-conspirator, by virtue of intoxication or impaired mental capacity, might be incapable of entertaining the requisite mental state for first degree murder.   (12 Cal.3d at p. 299, 115 Cal.Rptr. 516, 524 P.2d 1300.)   That defendant recognized this principle is made clear by the fact that he specifically requested instructions on the lesser included offense of conspiracy to commit voluntary manslaughter.³  Given the nebulous parameters of what is now referred to as the “diminished actuality” defense, it is inconceivable that Buschbom was deterred from presenting evidence which, although irrelevant on the issue of malice, was relevant and probative on the question of his premeditation and deliberation.

Assuming all the evidence on the issue was presented, we have no trouble concluding that the record not only establishes Buschbom's premeditation and deliberation as a matter of law but also shows no contrary evidence worthy of consideration.  (Garcia, supra, 36 Cal.3d at p. 556, 205 Cal.Rptr. 265, 684 P.2d 826.)   While Horn makes clear that evidence of mental disease, mental defect or intoxication can demonstrate that a planned conspiratorial killing does not automatically meet the legal standard for a deliberate and premeditated one (12 Cal.3d at p. 299, 115 Cal.Rptr. 516, 524 P.2d 1300), it does not destroy the common sense notion underlying People v. Kynette, supra, 15 Cal.2d at p. 745, 104 P.2d 794, that in the absence of such evidence, uncontested proof of motive and advance planning establishes premeditation as a matter of law.  (See People v. Anderson (1968) 70 Cal.2d 15, 26–27, 73 Cal.Rptr. 550, 447 P.2d 942.)   The record in this case reveals no theory under which the planned killing of Lowell Saunders by Buschbom could be other than a premeditated first degree murder.   Accordingly, the incomplete instructions on conspiracy to commit first degree murder do not require reversal.

III

 Buschbom also claims instructional error because the standard CALJIC instructions on express malice (the only malice instruction given) fail to distinguish between the intent to kill which establishes malice and the intent to kill which merely establishes voluntary manslaughter.⁴  (See People v. Rivera (1981) 127 Cal.App.3d 136, 151–153, 179 Cal.Rptr. 384.)   We are frank to admit that a literal reconciliation of the relevant instructions is difficult if not impossible.   One feels conceptually cross-eyed trying to envision an intentional killing without malice where malice is defined as the intent to kill.

As the Supreme Court recognized in People v. Gorshen (1959) 51 Cal.2d 716, 730, fn. 11, 336 P.2d 492, “the task of formulating an inclusive or comprehensive definition of the malice aforethought which distinguishes murder from manslaughter” is inherently a difficult one.   In reality, an intentional killing is malicious unless one of several recognized exceptions apply to negate the malice which would otherwise be established.   The evidence to support these exceptions may be shown either by the defense case or, not infrequently, as part of the prosecution's case in chief.  (See People v. Hyde (1985) 166 Cal.App.3d 463, 474–475, 212 Cal.Rptr. 440.)   Thus, an intentional killing in the “heat of passion” resulting from “sufficient provocation” is not malicious.  (E.g., People v. Sedeno (1974) 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913) disapproved on other grounds in People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1;  see also People v. Berry (1976) 18 Cal.3d 509, 514–516, 134 Cal.Rptr. 415, 556 P.2d 777.)   Also, the evidence may show that by virtue of a mental disease, defect or intoxication, the defendant did not harbor the malice necessary to establish that the killing was murder.  (See, e.g., People v. Conley (1966) 64 Cal.2d 310, 316, 322–323, 411 P.2d 911.)   Finally, an honest but unreasonable belief in the need to defend one's self will negate malice.   (See People v. Flannel, supra, 25 Cal.3d at pp. 679–680, 160 Cal.Rptr. 415, 556 P.2d 777.)

We thus acknowledge that the instructions on express malice and voluntary manslaughter, when taken together, may be confusing.   Buschbom's theoretically interesting argument, however, has no application on the facts of this case because, as we have already noted, there was no evidence which would have supported the giving of a voluntary manslaughter instruction.   This court had occasion to consider a similar argument by the defendant in People v. Rivera, supra, 127 Cal.App.3d at pp. 151–153, 179 Cal.Rptr. 384 and we reached a similar conclusion, noting that “the evidence did not support any theory establishing voluntary manslaughter through the negation of express malice.”  (Id. at p. 153, 179 Cal.Rptr. 384.)   Absent a factual basis for the jury to consider the voluntary manslaughter instruction, the standard CALJIC instruction on express malice poses no danger of misleading the jury into believing that every intentional killing is malicious.   There was no error in the court's instructions here.

IV

 In his final argument attacking his conviction, Buschbom asserts that the trial court erred in failing to instruct the jury that his wife, Cheryl Doherty Buschbom, was an accomplice as a matter of law and therefore necessarily subject to the rule requiring the independent corroboration of accomplice testimony.  (See People v. Martinez (1982) 132 Cal.App.3d 119, 132, 183 Cal.Rptr. 256.)   We disagree.   While the evidence is certainly sufficient to support a finding that Cheryl was an accomplice, she repeatedly testified that she assisted in the plan to kill Saunders solely due to her fear of Buschbom caused by previous instances in which he beat her.   The credibility of her testimony was a matter solely for the jury's determination but if believed, it was sufficient to support a finding that she did not act for the “purpose either of committing, or of encouraging or facilitating commission of, the offense” (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318) but rather for the independent purpose of avoiding being physically assaulted.   The court properly submitted the issue of Cheryl's accomplice status to the jury.  (See generally People v. Tewksbury (1976) 15 Cal.3d 953, 960–961, 127 Cal.Rptr. 135, 544 P.2d 1335.)

 Buschbom also argues, however, that certain of the instructions by which the court submitted that issue to the jury were improper.   Most troubling is a modified version of CALJIC No. 3.14 (1979 rev.) in which the court told the jury that in order for Cheryl to be an accomplice, she had to possess the specific intent to murder Lowell Saunders.   This instruction is not technically correct.   As the Supreme Court explained in Beeman, supra, although the accomplice must “share the specific intent of the perpetrator, ․ [b]y ‘share’ we mean neither that the aider and abettor must be prepared to commit the offense by his or her own act should the perpetrator fail to do so, nor that the aider and abettor must seek to share the fruits of the crime.  [Citation.]  Rather, an aider and abettor will ‘share’ the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.”  (35 Cal.3d at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   As the court explained in People v. Croy (1985) 41 Cal.3d 1, 221 Cal.Rptr. 592, 710 P.2d 392 in interpreting Beeman, “It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury.”  (Id. at p. 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392.)

 We do not think it probable that the jury found Cheryl acted “with the intent or purpose of facilitating the perpetrator's commission of the crime” without also finding she intended to kill Saunders.   On the other hand, the jury certainly could have concluded she acted for the purpose of assisting her husband and not out of any desire to see Saunders killed.   In any event, even if the jury would have found Cheryl to be an accomplice in the absence of the erroneous instruction, we do not think the error requires reversal.  (See People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)   Assuming that Cheryl's testimony required corroboration, it was provided by Cindy Gray's eyewitness identification of Buschbom at the scene of the shooting.  (See ante, p. 182)  This independent connection of Buschbom to the crime, coupled with the numerous items of additional evidence which corroborated most of the details of Cheryl's and Stanley's testimony and the lack of any substantial defense virtually compelled a guilty verdict.   Were the case to be retried, no other result is reasonably probable.

 Buschbom also challenges as misleading the instruction to the jury that he bore the burden of proving by a preponderance of the evidence that Cheryl was an accomplice.   He argues that the prosecution's case itself established Cheryl's accomplice status (see People v. Martinez, supra, 132 Cal.App.3d at p. 130, 183 Cal.Rptr. 256) but that the instruction may have caused the jury to believe that Buschbom was required to present evidence on the accomplice issue.

 We understand the logic of Buschbom's argument but it also must be recognized that the instruction as given is a correct statement of the law.  (People v. Tewksbury, supra, 15 Cal.3d at p. 968, 127 Cal.Rptr. 135, 544 P.2d 1335.)   To the extent that confusion may arise in the application of a correct instruction to a particular set of facts, it is incumbent on the defendant to request a clarifying instruction.  (See People v. Harvey, supra, 163 Cal.App.3d at pp. 112–113, 208 Cal.Rptr. 910.)   Buschbom made no such request in the present case and there was no sua sponte duty on the part of the trial court to amplify an otherwise correct instruction.

V

 Buschbom proffers several independent theories why various sentence enhancements resulting from two prior burglary convictions he suffered in Iowa should be stricken.   He most forcefully asserts an argument based on People v. Crowson (1983) 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389.   Noting that the elements for burglary in Iowa are not the same as in California,⁵ Buschbom contends the trial court was precluded from going behind the adjudicated elements of the Iowa burglary convictions to determine that they would also have constituted California burglaries and thus “serious felon[ies]” within the meaning of sections 667, subdivision (a) ⁶ and 1192.7, subdivision (c)(18).

In Crowson, supra, the Supreme Court was confronted with a fact situation similar to that found in the present case.   Crowson had been previously convicted on a federal drug conspiracy charge.   After his California convictions for robbery and burglary, the People sought a one-year sentence enhancement pursuant to section 667.5, subdivision (b) for Crowson's prior conviction.   Like section 667 which is at issue in this case, section 667.5, subdivision (f) provides that the conviction of a felony in another jurisdiction may support the enhancement if the out-of-state felony “includes all of the elements of the particular felony as defined under California law․”

The Crowson court determined that under federal law, unlike California law, a conviction for conspiracy did not require commission of an overt act.  (33 Cal.3d at p. 632, 190 Cal.Rptr. 165, 660 P.2d 389.)   Accordingly, it concluded that the federal crime of conspiracy did not “include[] all of the elements” of conspiracy under California law.   The court also rejected the People's argument that because the indictment to which Crowson pled guilty alleged (unnecessarily) two overt acts, his plea should be deemed a factual admission that all the elements of a California conspiracy were satisfied.   It observed that because the overt act allegations were surplusage, the defendant “would have had no reason or incentive to contest them in the federal proceeding.”   (Id. at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)

Here, as in Crowson, the elements of the out-of-state crime are not identical to those of the corresponding California offense.   Implicit in Crowson, however, is the notion that the factual allegations of an indictment or information might satisfy the elemental identity requirement if they were not mere “surplusage,” that is, if the defendant had some reason to contest them if they were erroneous.   We believe that condition is satisfied in the present case, which justifies a result different from Crowson.

In Crowson, the federal crime lacked an element which was necessary to constitute the offense in California.   In the present case, there is no missing element;  rather the corresponding element in the two jurisdictions is slightly different.   Iowa calls the crime burglary if the entry was for the purpose of committing any public offense.   California similarly requires that entry be for the purpose of committing a public offense but further limits that requirement to offenses which are either felonies or the misdemeanor of petty theft.   Nevertheless, the intent to commit some offense remains an essential element of each crime.

Crowson found the allegations of the indictment irrelevant because they were surplusage.   Here, the allegations in the Iowa informations charging Buschbom with entering residences for the purpose of committing larceny were necessary allegations.   This is made clear in the transcript of the change-of-plea hearing as to one of the two Iowa burglaries, in which the judge taking the plea took pains to assure himself there was a factual basis for the plea.⁷  To hold under these circumstances that Buschbom's guilty plea did not admit his intent to commit larceny would, in our view, dogmatically elevate form over substance.

 Buschbom's additional contentions regarding the enhancements imposed by virtue of his prior felony convictions and prison terms are unpersuasive.   He argues that only one prior serious felony enhancement (§ 667) should have been imposed because the two Iowa burglary charges, had they occurred in California, would have been tried together.⁸  While it is true that the charges could have been tried together, Buschbom is incorrect in asserting that they necessarily would have been.   Joinder or consolidation is not mandatory where the offenses, as here, were not factually related.  (People v. Tirado (1984) 151 Cal.App.3d 341, 354, 198 Cal.Rptr. 682.)   Because the two burglary charges were tried separately in Iowa and because they could have been tried separately here, separate enhancements pursuant to section 667 were appropriate.

 Buschbom's Iowa burglary convictions not only provided the basis for two serious felony enhancements but the prison term he served for those convictions also supported a prior prison term enhancement pursuant to section 667.5, subdivision (b).   Buschbom admits the trial court found as a factual matter that he had suffered both prior convictions but asserts that because the judge did not apply that finding specifically to the section 667.5 enhancement, it must be stricken.   We cannot agree.   The finding which is required is a factual finding, not a legal incantation.  (§ 1158;  compare People v. Huffman (1967) 248 Cal.App.2d 260, 56 Cal.Rptr. 255 where no factual finding was made.)   The finding made by the trial court here was sufficient.

VI

In his final contention Buschbom argues that the firearm use (§ 12022.5) and great bodily injury (§ 12022.7) enhancements cannot properly be imposed in conjunction with his conviction for conspiracy.   We agree in part.

Firearm Use Enhancement

 Relying largely on People v. Miley (1984) 158 Cal.App.3d 25, 204 Cal.Rptr. 347, Buschbom asserts that the concept of conspiratorial criminal liability is inconsistent with the imposition of a sentence enhancement for firearm use.  Miley, however, involved the crime of solicitation rather than conspiracy.   The court held that because the solicitation occurred a number of days before the defendant obtained a gun, it could not be said he was “armed with a firearm in the commission ․ of a felony,” i.e., solicitation, within the meaning of section 12022.

Relying on cases indicating that the “gist” of a conspiracy is the agreement (e.g., People v. Cancimilla (1961) 197 Cal.App.2d 242, 249, 17 Cal.Rptr. 498;  People v. Pacheco (1961) 194 Cal.App.2d 191, 196, 14 Cal.Rptr. 840;  People v. Cornette (1958) 158 Cal.App.2d 724, 729, 322 P.2d 1001), Buschbom suggests that the firearm use alleged by the People has nothing to do with the conspiratorial agreement but rather is limited to his much later attempt to commit the target offense, of which he was also convicted.   Thus he argues that he did not use a firearm in the commission of the conspiracy.

 Buschbom's focus on the agreement is somewhat misleading.   Technically, a conspiracy is the combination which results from an agreement to accomplish some unlawful purpose or to use unlawful means.  (Perkins, Criminal Law (3d ed. 1982) p. 682.)   This is because, while the agreement may be thought of as occurring at a specific point in time, the conspiracy generally continues until the object of the agreement is accomplished, frustrated or the conspiracy is abandoned.  (See United States v. Kissel (1910) 218 U.S. 601, 607–608, 31 S.Ct. 124, 125–126, 54 L.Ed. 1168;  People v. Mares (1975) 51 Cal.App.3d 1013, 1022, 124 Cal.Rptr. 718.)   In fact in California, a criminal agreement is not punishable unless one or more of the conspirators commits at least one overt act in furtherance of the conspiracy.  (§ 184;  People v. Witt (1975) 53 Cal.App.3d 154, 162, 125 Cal.Rptr. 653.)   Thus, Buschbom's analogy to the Miley solicitation issue is inapposite because the conspiracy here unlike the solicitation in Miley, had not terminated when Buschbom used the gun.

 It is of course true that the overt acts in furtherance of the conspiracy may but need not be separate crimes in and of themselves.   (People v. Robinson (1954) 43 Cal.2d 132, 139, 271 P.2d 865;  Braverman v. United States (1942) 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23.)   Relying on this principle, Buschbom posits a number of conceptual problems which could arise if certain types of enhancements were sought to be imposed based on the variety of conduct which might be engaged in by co-conspirators in the course of a conspiracy.   This court was presumably aware of such conceptual problems when it addressed a similar issue involving an enhancement for being armed with a firearm in the course of a conspiracy in People v. Mares, supra, 51 Cal.App.3d at p. 1022, 124 Cal.Rptr. 718:

“A conspiracy exists from the time of forming the criminal agreement until it terminates by abandonment, frustration or the achieving of the conspiracy's objective.   In some cases the conspiracy is in existence for a considerable period of time.   An original conspirator who does not withdraw from the conspiracy before its termination is guilty of the crime of conspiracy during the whole period of its duration.   If he should at some time during that period be armed with a dangerous or deadly weapon, though the conspiracy never reaches the point of an overt attempt to commit the conspired crime, a question arises whether the minimum sentence to which he might be subject if convicted of conspiracy is to be enlarged because of that possession of a weapon.  [¶]  Reasonable predictability of the result of certain conduct, and the practical demands of proof, suggest that any such enhancement of the minimum punishment be the result of being armed at the time of an overt attempt to commit the conspired crime.”  (Emphasis added.)

We thus need not decide the conceptually problematic issues which Buschbom suggests would arise if an enhancement were imposed for conspiratorial conduct other than “an overt attempt to commit the conspired crime.”   Here, the only overt act allegation involving the use of a firearm was the allegation that Buschbom shot Lowell Saunders.   That act constituted the object of the conspiracy.   Consistent with Mares, we hold that the use enhancement in these circumstances was proper.

Great Bodily Injury Enhancement

 Mares is a two-edged sword, however, and supports Buschbom's argument with respect to the great bodily injury enhancement.   As we have noted, conspiracy to commit first degree murder is punishable to the same extent as first degree murder.  (§ 182.)   Section 12022.7 specifically provides that the great bodily injury enhancement is not applicable to convictions for murder.   As we observed in Mares, “[I]t seems anomalous to permit enhancement of the minimum punishment for conspiracy to commit a felony when such enhancement is not permitted for the minimum punishment of the conspired felony․”  (51 Cal.App.3d at p. 1023, 124 Cal.Rptr. 718;  see also People v. Floyd (1969) 71 Cal.2d 879, 883, 80 Cal.Rptr. 22, 457 P.2d 862.)

 Where the rationale supporting the theory of conspiratorial liability is that a conspiracy makes the attainment of the unlawful object more probable (see Callanan v. United States (1961) 364 U.S. 587, 593–594, 81 S.Ct. 321, 325, 5 L.Ed.2d 312;  1 Witkin, Cal. Crimes, supra, § 106, pp. 101–102), it is difficult to justify punishing the conspiracy more severely than attainment of the object.   Moreover, such a result would raise serious constitutional questions.  (See People v. Schueren (1973) 10 Cal.3d 553, 560, 111 Cal.Rptr. 129, 516 P.2d 833, but see People v. Juarez (1984) 158 Cal.App.3d 412, 417, fn. 2, 204 Cal.Rptr. 637.) ⁹  Consistent with our obligation to interpret statutes so as to avoid such questions (In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142) and with our prior decision in Mares, we hold that an enhancement “do[es] not apply to a conviction for conspiracy to commit a crime if the provisions could not apply to the conspired crime itself.”  (Mares, supra, 51 Cal.App.3d at p. 1024, 124 Cal.Rptr. 718.)

DISPOSITION

With respect to Count One (conspiracy), the enhancement imposed pursuant to section 12022.7 is stricken.   The stay imposed on the section 12022.5 enhancement based on the requirements of section 1170.1, subdivision (e) is removed.   In all other respects the judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   Section 182 generally provides that the punishment for a conspiracy to commit any felony is the same as that provided for the felony itself:“․ 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.”   (Emphasis added.)

3.   These instructions were refused on the ground they were not supported by the evidence.

4.   The jury was instructed pursuant to CALJIC No. 8.11 (1983 rev.) that “[m]alice is express when there is manifested an intention unlawfully to kill a human being.”   CALJIC No. 8.40 (1979 Re-revision) which was requested by Buschbom but refused by the court defines voluntary manslaughter as “the unlawful killing of a human being without malice aforethought when there is an intent to kill.”

5.   The statute under which Buschbom was convicted prohibited the entry of “any dwelling house in the nighttime with intent to commit any public offense․”  (Iowa Code (1973) § 708.1.)   In contrast, the California statute requires that the entry be for the purpose of committing “grand or petit larceny or any felony․”  (§ 459.)

6.   Subdivision (a) of section 667 provides in relevant part as follows:“Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.

7.   The record in the Iowa case reveals the following colloquy:“The Court:  A few days ago, we had to go through the rather lengthy procedure in another case of my questioning you to determine whether or not I can accept the plea of guilty.   That same procedure is applicable here;  and, of course, you are going to notice a distinct similarity in the procedure;  but nevertheless, they are designed for the Court to serve as the last and final decision-maker that there is a basis for the acceptance of a guilty plea.“․“The Court:  In this case have you read the Information and the Minutes of testimony attached to it?“The Defendant:  Yes.“The Court:  Did you understand all the statements made in those papers from the use of your own reading skills?“The Defendant:  Yes.“․“The Court:  Tell me in your own words, if you will, please, what you are charged with doing that's prompted the filing of this criminal charge.“The Defendant:  Act of burglary.“The Court:  What does that mean to you?   What have you done to commit a burglary, in your own mind?“The Defendant:  In this case my accomplices went into a house in the nighttime and took property that didn't belong to them and the house—that it was illegal to enter in the first place.“The Court:  And this was the home of Tom Shive?“The Defendant:  Yes.“The Court:  Let me read the statute that you are charged under and also the applicable punishment.   The definition of burglary is found in Chapter 708, Section 1:“ ‘If any person break and enter any dwelling house in the nighttime with intent to commit any public offense of after having entered with such intent, break any such dwelling house in the nighttime [sic], he shall be guilty of burglary and shall be punished according to the aggravation of the offense as is provided in Section 2 and 3 of Chapter 708.’ ”“This is burglary without aggravation, and so the punishment is found in Section 3, and it reads as follows:“ ‘If such offender commits such burglary otherwise than is mentioned in Section 2’—and Section 2 deals with aggravated offenses where weapons and the like are involved—‘he shall be imprisoned in the penitentiary not exceeding 20 years.’“Now, for your further clarification of the crime you are charged with, burglary as you are charged involves the following elements:  That you broke and entered the dwelling house of Thomas Shive;  that you did so in the nighttime;  that you did so with the intent to commit a public offense—that is, larceny, which is the stealing of goods from the inside of the house—and that these acts were committed by you in Marshall County on or about July 2d, 1975;  or if you did not personally do these things, that you were participating in the commission of this offense with confederates, associates, or accomplices, whatever term you would like to adopt for your companions;  and that you assented to the plan to break into the house;  that in some way, you actively participated in the plan;  that you encouraged it, made the accomplishment of the burglary possible;  that you were knowingly aware of the fact that the burglary was going to occur;  and that the people entering the house had the intent to commit larceny upon entering;  and so you could be guilty of burglary by either active, direct participation or by aiding and abetting accomplices who committed the active acts of burglary.“Now, from my reading of the statute to you and from my describing to you the elements of the offense and how your participation can become illegal and become a violation of the charge of the crime of burglary, do you understand the crime you are charged with?“The Defendant:  Yes.“The Court:  And has Mr. Hill fully explained this crime and the elements of it to you as well?“The Defendant:  Yes.“The Court:  Have his explanations been the same as mine?“The Defendant:  Yes.“The Court:  Are you satisfied that your conduct on July 2, 1974, constitutes the commission of the crime you are charged with as I have just described it to you?“The Defendant:  Yes.“The Court:  And is this the reason for your offering a plea of guilty here today?“The Defendant:  Yes.”

8.   Subdivision (a) of section 667 allows separate enhancement for separate offenses only if charges were “brought and tried separately.”   (See ante, fn. 6.)

9.   Juarez suggests that the enhanced punishment for conspiracy may not be disproportionately severe because in some cases special circumstances may be charged which increase the punishment for murder.   (158 Cal.App.3d at p. 416, 204 Cal.Rptr. 637.)   The issue here, however, is not one of disproportionality in the individual case but rather one of statutory interpretation.   It cannot be disputed that there are numerous conspired-to murders which, if committed, would not be subject to a charge of special circumstances.   If a section 12022.7 enhancement were permitted in such cases, the conspiracy would be punished more severely than the crime which was the object of the conspiracy.   The relevant question is whether the Legislature intended such a disproportionate and arguably unconstitutional result.   We prefer an interpretation of the statute which avoids the constitutional issue in all cases.

WIENER, Associate Justice.

KREMER, P.J., and LEWIS, J., concur.