If someone who is not a co-conspirator commits an act that inadvertently furthers the conspiracy, the actual co-conspirators will not be responsible for that particular act, regardless of its criminal nature.
Nor would you, as a co-conspirator, be responsible for the other co-conspirators’ acts that were committed either before the conspiratorial agreement was made, or after the conspiratorial murder was carried out.
In addition, you can’t be held responsible for overt acts committed by co-conspirators before you joined the conspiracy.
See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 419 (“Acts Committed or Statements Made Before Joining Conspiracy”).
See also People v. Marks (1988) 45 Cal.3d 1335, 1345.
California Statutes Regarding Homicide Crimes – Conspiracy to Commit Murder
To convict you of conspiracy to commit any crime, the prosecutor must prove that you had the specific mindset (a.k.a. the mens rea) to both enter into a conspiracy and to complete the underlying crime. The former cannot be inferred from the completion of the latter.
California Penal Code section 182 (California’s general conspiracy statute)
This is a Penal Code section which covers all types of conspiracy crimes, but generally requires that you and another person “conspire” (as defined therein) to commit any crime. See Penal Code section 182(a).
In addition, this statute lays out the different punishments for conspiracy convictions, though not for those involving murder (see below).
California Penal Code section 189(e) – Conspiracy to Commit Murder
Under Penal Code section 189(e), you can be convicted for conspiracy to commit murder, as previously discussed, whether the killing was successful or not.
For example, you can be convicted of First-Degree Murder under California Penal Code section 190 if you did the following:
- you intended for someone (not necessarily the ultimate victim); and
- you abetted or gave aid, counseling, commands, or instructions to the actual killer; or
- you hired, induced, solicited, or otherwise convinced the killer to kill (or attempt to kill).
California Penal Code section 32 – Aiding and Abetting Murder/Accessory After the Fact to Murder
California’s statutes covering the aiding and abetting of a crime, and serving as an accessory after it happens, can be found at Penal Code section 32.
Punishments for Homicide Crimes – Conspiracy to Commit Murder
A murder-conspiracy conviction will generally come with the same punishment as if you were convicted of the underlying murder – i.e., First-Degree Murder under Penal Code section 190 or Second-Degree Murder under California Penal Code section 192(a)&(b) (though typically the former in light of the premeditation inherent in the planning) – excepting the death penalty, which is generally reserved for the actual killers under California law, and which is prosecuted under California Penal Code section 190.2 (Capital Murder/Special-Circumstances Murder).
For example, you may only be convicted of a second-degree-murder conspiracy if the jury found that you had a diminished mental capacity at the time of the conspiratorial agreement such that you did not carefully and deliberately plan the murder. See People v. Horn (1974) 12 Cal.3d 290, 297-299.
In addition, a first-degree-murder conspiracy conviction will result in a range of twenty-five years to life (typically with potential parole, but certainly not always). See California Penal Code section 190.
Alternatively, a second-degree-murder conspiracy conviction comes with a minimum of fifteen-to-life (with potential parole). Id.
Defenses to Homicide Crimes – Conspiracy to Commit Murder
In addition to those defenses that would defeat the underlying First-Degree Murder charge under Penal Code section 190, Second-Degree Murder charge under California Penal Code section 192(a)&(b), or Attempted Murder charge under California Penal Code section 664 & California Penal Code section 187(a), the following defenses can also be used to defeat the conspiracy charge itself:
- you never agreed, nor did you ever intend to agree, to kill anyone;
- neither you nor the other alleged co-conspirator(s) intended to commit murder;
- nor did either of you commit any “overt act” towards that goal (or at least did not do so in California) – i.e., you took no direct step towards accomplishing the killing;
- you and other conspirator did agree to kill someone but in a lawful way (e.g., your wife’s psychotic and violent ex-husband was stalking her, so you both agreed to kill him if he broke into your home – a killing that would have been legally justified as self-defense);
- one or more of you did complete the overt act, but did so before you entered into the conspiratorial agreement;
- you and the others did not act with a common purpose;
- the allegedly overt act you committed was not a natural and probable consequence of the alleged conspiracy’s grand scheme;
- you were merely an associate of the conspiracy, even if you undertook a joint action with the conspirators that furthered the conspiracy; and/or
- your conspiracy only involved a violation of federal law, and not California state law.
These defenses are set forth in detail in the following CALCRIM Jury Instructions:
Withdrawing from the Conspiracy
One effective defense merits particular attention – namely, your withdrawal from the conspiracy. In order for this defense to be complete, you must have withdrawn from the conspiracy before even a single overt act was completed by any of the co-conspirators.
This would require that you affirmatively rejected it and informed the other known co-conspirators – either verbally, in writing, or by some act – about your withdrawal.
See CALCRIM number 420 (“Withdrawal From Conspiracy”).
Once you withdraw, you are no longer liable for any other overt acts committed by the remaining conspirators. Conversely, however, you would be liable for all such acts you completed before you withdrew.
Keep in mind that simply dropping out of the conspiracy by not committing any additional overt acts is not sufficient to support this defense.
Fortunately, at all times it remains the burden of the Deputy District Attorney prosecuting you to prove beyond a reasonable doubt that you did not withdraw from the conspiracy.
See, e.g., People v. Crosby (1962) 58 Cal.2d 713, 731 (discussing withdrawal as a defense).
See also People v. Sconce (1991) 228 Cal.App.3d 693, 701 (discussing when withdrawal fails as a defense).
Examples of Homicide Crimes – Conspiracy to Commit Murder Cases
A Married Couple and the Erstwhile Hitman They Hired are Sentenced for Their Murder Conspiracy
In the summer of 2013, Holly Ramos (age forty) and her husband, Frank Haverly (age unknown), began plotting to murder her mother (whose name was never disclosed in the media) in order to cover up their embezzlement from her in an amount exceeding $40,000, which Ramos had done by forging her mother’s name on her mother’s personal checks.
In September of that year, her mother discovered the forgeries. That same month, her mother filed a motion in Monterey Co. (on the coast of central California), where the couple lived, to gain custody of Ramos’ kids after Haverly had been recently arrested for allegedly endangering their children and possessing illegal drugs. As a result, they hired a would-be hitman, Keith Phillips (age unk), to do the job.
On October 10, 2013, the couple picked up Phillips in Menlo Park (in the Silicon Valley) and provided him various items, as well as a vehicle, to carry out the murder.
The next day, Phillips drove the vehicle to the mother’s Long Beach residence. He gained entry therein by posing as a Monterey Co. social worker, then cracked her skull open with a blunt object, severely injuring but not killing her. Thinking she was dead, he left the home, taking with him her purse, as well as a police report about her daughter’s embezzlement which had filled out but not yet filed.
Because Phillips had (bizarrely) given the mother his real name and disclosed info that only the couple knew when he was attempting to gain entry, Long Beach PD was eventually able to identify and arrest him and the couple.
Before their arrest, on October 12, 2013, the couple retrieved the vehicle from Phillips, scrubbed it of all evidence relating to the (attempted) murder, then drove it to Arizona to sell it. One month later, all three individuals were apprehended.
In early December 2015, a jury convicted all three of Conspiracy to Commit Murder under Pen. Code section 189(e), Deliberate and Premeditated Attempted Murder (“First-Degree Attempted Murder”) under Penal Code section 664 & Penal Code section 187(a), and First-Degree Robbery under California Penal Code section 212.5.
In addition, Ramos was convicted of Forgery under California Penal Code section 470, Second-Degree Commercial Burglary under California Penal Code section 460, and Grand Theft under California Penal Code section 487 (all felonies).
Phillips, who had apparently testified against the couple in exchange for leniency, was immediately sentenced to a decade in prison. On March 11, 2016, Haverly received over three decades in prison. The following month, his wife received the same exact sentence: thirty-one years. See da.lacounty.gov.
Compton man serves 20 years for murder conspiracy then is later proved to be innocent of the crime
On September 10, 1996, an alleged drug dealer and gang member (whom the LA Co. DA’s Office did not identify for some reason) pulled his vehicle into a Compton gas station to fill up. Moments later, Anthony Salgado (twenty-one) – allegedly a rival gang member – shot him once in the chest.
The victim somehow managed to get to his feet and flee, but Salgado caught up with him and shot him several more times. Fortunately, the victim nevertheless survived, and eventually Salgado and his co-conspirator, Antonio Garcia (forty), were arrested for Attempted Murder under Pen. Code section 664 & Pen. Code section 187(a).
However, during Garcia’s preliminary hearing, a witness identified Garcia’s brother, Marco Contreras, as the actual shooter. As a result, the LA County DA’s Office immediately dropped the attempted-murder charge against Anthony and prosecuted Contreras for the crime.
Based solely on that eyewitness’s testimony, Contreras was convicted of attempted murder in June 1997, and was sentenced to seven-years-to-life. Meanwhile, Garcia pled out to Aiding and Abetting Murder/Accessory After the Fact to Attempted Murder under California Penal Code section 32 and ultimately served almost a year-and-a-half in prison.
But at no point did Contreras ever claim that his brother was the actual shooter. But he certainly vociferously attested to his own innocence, which repeatedly cost him at least several parole opportunities. (Anyone who protests their innocence at any parole board hearing will automatically be denied.)
In 2014, the DA’s Office was contacted by the Loyola Project for the Innocent on behalf of the original eyewitness to the 1996 shooting who claimed that he/she had misidentified Contreras as the shooter. As a result of the re-opening of this investigation, Salgado and Garcia were re-arrested based on this new evidence. Also as a result, Contreras was released after completing two decades in prison.
In mid February 2019, Salgado and Garcia were both convicted – following a jury trial in Compton – of attempted murder and Conspiracy to Commit Murder under Pen. Code section 189(e). Specifically, jurors found true the allegations that they had carried out the shooting in a murder-for-hire scheme on behalf of a drug trafficker who considered the victim to be a competitor.
In addition, jurors found true that Salgado was the trigger man and Garcia had set up the ambush. In addition, Salgado was convicted for being a Felon in Possession of a Firearm under California Penal Code section 29800 and for Personally Discharging a Firearm During the Commission of a Serious Felony under California Penal Code section 12022.53(c).
On January 7, 2020, Salgado and Garcia were sentenced to six-decades-to-life and twenty-five-to-life, respectively. See da.lacounty.gov.
Two Crips gang members receive a total of almost 600 years for a drive-by shooting in Pasadena
In mid January 2017, Marquis Turner (twenty-nine) and Tony Edwards (twenty-seven) – two Crips gang members from Duarte (near the San Gabriel Mountains in LA Co.) – loaded up with an assault rifle and a semi-automatic handgun, then went hunting for rival gang members in Pasadena.
Unfortunately, they fired upon a group of innocent people, none of whom had any gang affiliations, seriously wounding several victims.
At the end of March and in early April 2018, respectively, Edwards and Turner were convicted by a jury of conspiracy to commit murder, more than half-a-dozen counts of attempted murder, Discharging a Firearm from a Moving Vehicle under California Penal Code section 26100, the personal discharge of a firearm, and Inflicting Great Bodily Injury (GBI) under California Penal Code section 12022.7. In addition, they were both charged with multiple Strike Offenses under California Penal Code section 667(a)&(b) and California Penal Code section 1192.7.
Later that month, Edwards received almost 250 years in a penitentiary. On or about May 7, 2018, Turner received over 330 years. Both sentences included gang enhancements. See da.lacounty.gov.