12 Cal.4th 593, S037138, People v. Swain

Docket Nº:S037138
Citation:12 Cal.4th 593, 49 Cal.Rptr.2d 390, 909 P.2d 994
Opinion Judge:[10] The opinion of the court was delivered by: Baxter
Party Name:People v. Swain
Attorney:[7] Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Laurence K. Sullivan, Ann K. Jensen, Ronald E. Niver and Mark S. Howell, Deputy Attorneys General, for Plaintiff and Appellant. [8] George L. Schraer, Richard ...
Case Date:January 29, 1996
Court:Supreme Court of California
 
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Page 593

12 Cal.4th 593

49 Cal.Rptr.2d 390, 909 P.2d 994

THE PEOPLE, Plaintiff and Appellant,

v.

JAMAL K. SWAIN et al., Defendants and Appellants.

S037138.

Supreme Court of California

January 29, 1996

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[Copyrighted Material Omitted]

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         COUNSEL

        Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Laurence K. Sullivan, Ann K. Jensen, Ronald E. Niver and Mark S. Howell, Deputy Attorneys General, for Plaintiff and Appellant.

        George L. Schraer, Richard Phillips and Charles M. Bonneau, under appointments by the Supreme Court, for Defendants and Appellants.

         OPINION

        BAXTER, J.—

        Defendants Jamal K. Swain and David Chatman were each convicted of conspiracy to commit murder and other crimes, stemming from the drive-by shooting death of a 15-year-old boy. As we shall explain, we hold that intent to kill is a required element of the crime of conspiracy to commit murder. In light of the jury instructions given, and general verdicts returned, we cannot determine beyond a reasonable doubt whether the jury found that the defendants conspired with an intent to kill. That conclusion requires us to reverse defendants' conspiracy convictions.

        Facts and Procedural Background

        The question before us is one of law; the facts found by the Court of Appeal, summarized below, are not disputed.

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        Prosecution evidence established that a brown van passed through the Hunter's Point neighborhood of San Francisco about 2 a.m. on January 13, 1991. It slowed down near the spot where the young victim, who was of Samoan descent, and his friends were listening to music on the street.

        A young Black male who appeared to have no hair was driving the van. Suddenly several shots were fired from the front of the van. Defendant Chatman and another young man also fired guns from the rear of the van. One of the intended victims had yelled out "drive-by" as a warning of the impending shooting, so most of the people on the street ducked down. The 15-year-old victim, Hagbom Saileele, who was holding the radio from which music was playing, was shot twice from behind. He later died in surgery.

        Afterward, defendant Swain was in jail and boasted to jailmates about what good aim he had with a gun: "He was talking about what a good shot he was. [¶] ... [¶] He was saying he had shot that Samoan kid when they were in the van going about 30 miles an hour up a hill." The area where the shooting occurred is hilly; the van would have had to have been traveling uphill as it passed by the scene of the shooting.

        Evidence also established that defendant Swain had used his jailhouse visiting privileges to threaten and intimidate witnesses into changing their stories, so that he would not be identified as involved in the crime.

        The abandoned brown van was recovered by police; in the van and nearby were found surgical gloves, expended cartridges, a hooded ski mask, and two handguns—a .380-caliber semiautomatic and a .25-caliber automatic. Defendant Swain's fingerprint was on the inside of the driver's side window. The forensic evidence established that whoever had used the .380-caliber semiautomatic handgun, from which the fatal shots were fired, had been sitting in the driver's side front seat of the van.

        The .380-caliber gun was traced, through a series of owners and transactions involving narcotics, to defendant Chatman. Chatman was interrogated by police; he denied any knowledge of the van and claimed he had not purchased the gun. When this story proved false, Chatman admitted he had bought the gun, but claimed it had been stolen from him. Still later, he claimed he had sold it to someone else.

        A warrant was obtained for Chatman's arrest. After waiving his rights, Chatman told police he and two other people, not including Swain, had driven the van to the crime scene in order to get revenge for a car theft by a rival gang. Chatman insisted, to the police and at trial, that Swain had not

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been in the van. He could not, however, explain Swain's fingerprint inside the van.

        The owner of the van testified Swain had never been inside his van prior to the incident, but that Swain had intimidated him into telling police he (Swain) had previously been inside the vehicle, since otherwise "he was going to have something done to him."

        At trial, Chatman admitted he had been in the van, which was driven to Hunter's Point to retaliate for a car theft attributed to a neighborhood youth who was not the victim of the shooting. The original plan was allegedly to steal the car of the thief. Chatman admitted he had fired shots, but claimed he fired wildly and only in self-defense. In support of this self-defense theory, he testified he heard an initial shot and thought it was fired by someone outside the van shooting at him, so he returned the fire. As noted, Chatman claimed Swain was not in the van.

        Swain testified he was not in the van during the shooting and did not do any shooting. He claimed he had entered the van earlier in the evening, but had left because "the smell of marijuana bothered him." He claimed he took BART (Bay Area Rapid Transit) to Berkeley, where he spent the evening at a relative's home. He denied boasting about shooting the victim and denied having threatened any witnesses.

        The jury first returned a verdict finding defendant Chatman guilty of second degree murder and conspiracy. As instructed, the jury also made a finding that the target offense of the conspiracy was murder in the second degree. Several days later, the jury returned verdicts against defendant Swain, finding him not guilty of murder or its lesser included offenses, but guilty of conspiracy and of attempting to dissuade a witness from testifying by threats. Once again, the jury made a finding under the conspiracy count that the target offense of the conspiracy was murder in the second degree.

        At the sentencing hearing, the parties disputed the proper sentence for the crime of conspiracy to commit murder, where the target offense is found by the jury to be murder in the second degree. The trial court ultimately ruled that the proper sentence was an indeterminate term of 15 years to life, that prescribed for murder in the second degree, not 25 years to life, that prescribed for murder in the first degree, as the People had argued.

        Chatman was sentenced to 15 years to life for second degree murder, with a consecutive 4-year enhancement for personal firearm use. A sentence of 15 years to life for the conspiracy count was imposed but stayed pursuant to Penal Code section 654.

Page 599

        Swain was sentenced to 15 years to life for conspiracy, and an additional 3 years for the conviction of attempting to dissuade a witness from testifying by threats.

        Both defendants appealed on several grounds, including the question of whether intent to kill is a required element of the crime of conspiracy to commit murder. More particularly, where, as here, the target offense is determined to be murder in the second degree, does conviction of conspiracy to commit murder necessarily require proof of express malice—the functional equivalent of intent to kill—or can one conspire to commit implied malice murder? The People also appealed, contending the trial court improperly sentenced defendants to indeterminate terms of 15 years to life on the conspiracy counts because, assertedly under Penal Code section 182, every "conspiracy to commit murder" must be punished as a first degree murder, with a sentence of 25 years to life. The Court of Appeal affirmed the convictions and judgments imposing sentence in their entirety.

        Defendants and the People each petitioned for review. We granted the petitions, limiting review to two issues: (1) is intent to kill a required element of conspiracy to commit murder, and (2) what is the punishment for conspiracy to commit murder, given the prescripts of Penal Code section 182?

        Discussion

        I

         Defendants contend the jury should have been instructed that proof of intent to kill is required to support a conviction of conspiracy to commit murder, whether the target offense of the conspiracy—murder—is determined to be in the first or second degree. More particularly, defendants assert it was error to instruct the jury on the principles of implied malice second degree murder in connection with the determination of whether they could be found guilty of conspiracy to commit murder, since implied malice does not require a finding of intent to kill. As we shall explain, we agree.

        We commence our analysis with a brief review of the elements of the crime of conspiracy, and of murder, the target offense of the conspiracy here in issue.

         Conspiracy is an inchoate crime. (See United States v. Feola (1975) 420 U.S. 671, 694 [43 L.Ed.2d 541, 558, 95 S.Ct. 1255].) It does not require the commission of the substantive offense that is the object of the conspiracy. (People v. Manson (1977) 71 Cal.App.3d 1, 47 [139 Cal.Rptr. 275].)

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"As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime," and "thus reaches further back into preparatory conduct than attempt ...." (Model Pen. Code & Commentaries (1985) com. 1 to § 5.03, pp. 387-388.)

        The crime of conspiracy is defined in the Penal Code as "two or more persons conspir[ing]" "[t]o commit any crime," together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance...

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