holding that “all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first-degree murder”
How later courts described this case
- holding that “all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first-degree murder”
Written by the judges who cited it.
The opinion
MOSK, J.
I concur in the opinion of the court.
In my concurring opinion in People v. Swain (1996) 12 Cal.4th 593 [ 49 Cal.Rptr.2d 390 , 909 P.2d 994 ], I anticipated, and resolved, the issue presented here.
. “[T]he crime of conspiracy to commit murder” is defined “as the agreement by two or more persons, accompanied by an overt act, to effect a killing that is unlawful under the circumstances as they are believed to be and that is reflective of malice aforethought [citation]. So defined, the crime of conspiracy to commit murder requires two kinds of ‘intent’ strictly so called. One is intent to join together in a common endeavor: else, there is no *1241 conspiracy to commit murder. The other is intent to kill unlawfully: else, there is no conspiracy to commit murder. The offense does not require, as a factual matter, a premeditated and deliberate intent to kill unlawfully. But an intent of such character is present in the context of a conspiracy, practically by definition, because it does not arise of a sudden within a single person but is necessarily formed and then shared by at least two persons.” (People v. Swain, supra, 12 Cal.4th at pp. 612-613, original italics & fn. omitted (cone, opn. of Mosk, J.).)
Because this is so, we were right to expressly hold in People v. Kynette (1940) 15 Cal.2d 731 [ 104 P.2d 794 ], notwithstanding its disapproval by People v. Horn (1974) 12 Cal.3d 290 [ 115 Cal.Rptr. 516 , 524 P.2d 1300 ], which we here disapprove today, 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.’ [Citation.] Inasmuch as it encompasses malice aforethought, in fact express malice aforethought, such an ‘intention’ distinguishes murder from other homicide. Also, by its very terms, it differentiates murder of the first degree in one of its forms from murder of the second degree.” (People v. Swain, supra, 12 Cal.4th at p. 613 , original italics (cone. opn. of Mosk, J.), quoting People v. Kynette, supra, 15 Cal.2d at p. 745 .)
We were also right to impliedly hold in Kynette , again notwithstanding its disapproval by Horn , that the “crime of conspiracy to commit murder is properly conspiracy to commit murder simpliciter. Under its reasoning, it is erroneous to speak of a ‘crime’ of ‘conspiracy to commit murder of the second degree': ‘a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree’ [citation]. Similarly, it is unnecessary to label the crime ‘conspiracy to commit murder of the first degree': there is no crime of ‘conspiracy to commit murder of the second—or any other—degree' from which it may be distinguished.” (People v. Swain, supra, 12 Cal.4th at pp. 613-614, original italics (cone. opn. of Mosk, J.), quoting People v. Kynette, supra, 15 Cal.2d at p. 745 .)
Because I read the opinion of the court to resolve the issue presented here consistently with my resolution of the same issue in Swain , I join in its reasoning and result.