People v. Horn

MOSK, J.

I dissent.

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.

*302 But, argue the majority, Penal Code section 182 provides that if the felony the defendants conspire to commit consists of degrees, then the trier of fact must ascertain the degree. True enough. But where the majority then go awry is in leaping from the code section to the untenable conclusion that the defendants’ mental capacity to conspire is to be determined by consideration of the planned subordinate felony, rather than solely by reference to the crime itself: conspiracy.

The degree aspect of Penal Code section 182 has no relevance to mental capacity. The section bears a relationship to the substance of conspiracy to commit such offenses as robbery and burglary, which are divided into degrees. For example, if two defendants conspire to rob, the trier of fact must determine whether the planned robbery was to be committed by torture or with a deadly weapon: if so, the crime is conspiracy to commit robbery of the first degree; if not, it is conspiracy to commit robbery of the second degree (Pen. Code, § 21 la). The degree is significant because of the methods planned to be used; the degree has no relevance to the mental capacity to plan or conspire to rob. A similar example is found in conspiracy to commit burglary. The court or jury must ascertain if the planned burglary was to be of an inhabited dwelling, or perpetrated in the nighttime, or with a deadly weapon, and from those circumstances the trier of fact determines whether the conspiracy was to commit burglary of the first or second degree (Pen. Code, § 460). Again, the degree is a factor because of the methods planned to be used, but it is unrelated to the mental capacity to plan or conspire to commit burglary.

Murder, too, consists of degrees. As with other offenses divisible into degrees, when the charge is conspiracy to commit murder, the trier of fact looks to the method planned to be used in the proposed killing in order to ascertain the degree. If the planned method is the use of a destructive device or explosive, as in this instance, then the court or jury is bound by Penal Code section 189 which specifically declares such homicides to be murder in the first degree. But as with robbery and burglary, the method planned to be used for the subordinate felony has no relevance to the capacity to commit the crime charged. And it bears constant repetition that the crime charged here was not murder, but conspiracy.

Of course, diminished capacity is an issue in this case. But where the majority fall into error is in relating diminished capacity to murder, instead of to the charge of conspiracy. The Wells-Gorshen instruction, properly given by the trial court, alerted the jury to the necessity of determining the capacity of defendants to conspire. Since there are no degrees of con *303 spiracy created by law (People v. Kynette (1940) 15 Cal.2d 731 [ 104 P.2d 794 ]), if defendants’ capacity to conspire was diminished the jury would have been compelled to bring in a verdict of acquittal. The guilty verdict indicates the jury found no diminished capacity preventing defendants from conspiring.

A conspiracy is a combination of two or more persons to commit a crime or to do any of the other acts forbidden by Penal Code section 182. The law speaks of a conspiracy as an agreement plus an overt act in furtherance of the agreement. (§ 184; People v. Gordon (1945) 71 Cal. App.2d 606, 611 [ 163 P.2d 110 ].) Conspiracy is a totally independent accusation based upon the criminality attached to an unlawful agreement followed by some act in pursuance of the joint design. (People v. Robinson (1954) 43 Cal.2d 132, 138 [ 271 P.2d 865 ].) The key to the offense is the agreement, not the crime which the conspirators purportedly agree to commit. (People v. Klinkenberg (1949) 90 Cal.App.2d 608, 635 [ 204 P.2d 42, 613 ].) Indeed, it is clear two or more persons may be convicted of conspiracy even though the crime they conspire to commit is frustrated, or prevented by events over which they have no control. (People v. Benenato (1946) 77 Cal.App.2d 350, 357 [ 175 P.2d 296 ].).

Thus we must look to the capacity of the defendants to conspire, i.e., to agree between themselves. It seems obvious that the criminal act they agreed to commit is unrelated to their mental ability to agree. (People v. McLaughlin (1952) 111 Cal.App.2d 781, 789 [ 245 P.2d 1076 ].) The issue is; was their capacity to conspire diminished? The jury was properly instructed on that query, and by its verdict of guilt found the defendants to have adequate capacity to negotiate a criminal agreement.

But, say the majority, two persons may have the ability to conspire but lack the ability to complete the offense they conspire to commit; therefore they can be convicted of conspiring to commit some lesser offense. In this instance the majority hold that lacking the capacity to conspire to commit first degree murder, the defendants nevertheless may have the capacity to conspire to commit manslaughter. I confess the rationale of this esoteric concept escapes me. If the defendants are unable to conspire to commit one crime because of mental incapacity, it would seem to follow that they would be equally unable to conspire to commit another-crime. By the simple device of changing the crime alleged to have been conspiratorially contemplated the law. cannot elevate, mirabile dictu, the mental capacity of the defendants.

Perhaps somewhat too categorically the Kynette case held that “a conspiracy to commit murder can only be a conspiracy to commit murder of *304 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.” ( 15 Cal.2d at p. 745 .) However, if because of diminished capacity, conspiracy to commit murder of the first degree can be reduced to conspiracy to commit murder of the second degree or manslaughter, some mind-boggling possibilities emerge.

Second degree murder is a homicide that is not a wilful, deliberate and premeditated killing (Pen. Code, § 189). But if we accept the existence of conspiracy to commit second degree murder for other than the planned method of killing there can be an agreement, which requires will, deliberation and planning, to commit an act which is characterized by an absence of wilfulness, deliberation and premeditation. In the instant case the majority imply the possibility of conspiracy to commit manslaughter. Voluntary manslaughter is defined as an unlawful killing “upon a sudden quarrel or heat of passion.” (Pen. Code, § 192.) 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. Or to agree to act “without due caution and circumspection,” a characteristic of involuntary manslaughter. Indeed, how can there be a voluntary agreement to commit an involuntary act?

It was to prevent such slides into wonderland that this court decided Kynette . It was a sound basic rule prior to the 1965 amendments to Penal Code section 182, and retains its general rationality today, except as to those instances when the planned method of-killing falls within the Penal Code section 189 definition of murder in the second degree.

This case is not as distressingly complicated as the unique theory of the majority attempts to make it. There are two simple questions and equally easy answers. First, did the defendants enter into an agreement, i.e., conspiracy to commit an unlawful act? The jury answered affirmatively; the majority would answer affirmatively, though they equivocate not as to the agreement but as to the object of the agreement. Second, did the defendants have the capacity to enter into an agreement, i.e., conspiracy? The jury, properly instructed on Wells-Gorshen, answered affirmatively; the majority answer affirmatively as to capacity to agree to one crime but not to another.

Under these circumstances I would affirm the judgment in its entirety.

McComb, J., concurred.