People v. Russo

Opinion

In California, a conviction for conspiracy requires proof that at least one of the conspirators committed an overt act in furtherance of the conspiracy. We granted review to decide whether the jury must unanimously agree on a specific overt act. We conclude the jury need not agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy.

I. Factual and Procedural History

On the night of July 14, 1994 (all dates are to the year 1994), a Fresno County deputy sheriff found David Russo’s body, dead from a gunshot wound to the back of the head, wrapped inside a sleeping bag in the backseat of David’s car in a remote rural location. David’s wife, defendant Susan Lee Russo (hereafter defendant), and codefendants Bobby Morris and Jason Andrews were tried together for conspiring to murder and murdering him.

A. Evidence at Trial

The prosecution presented evidence that defendant knew she would receive over $200,000 in the event of David’s death from his employer, the United States Navy. Circumstantial evidence, including a comparison of bloodstains found in the bedroom of the Russo house in Riverdale with bloodstains found near the body, indicated that David had been killed in that bedroom. Other evidence showed that David had possessed a nine-millimeter Beretta handgun.

Defendant told the police the following: She let some people into her house around 1:00 a.m. on July 14, and after that she saw David’s nine-millimeter Beretta gun. She had given the gun to someone on July 12. She told the people who had entered her house that her husband was asleep and they should keep their voices down. The people were making hand signals. Someone shot David with his own gun. The shot was muffled and occurred while she was checking on one of her children. After the shot, she saw her

Defendant admitted that she had previously talked about her husband’s killing and that “outside people” would be hired to do it. She had the impression it would be done that night. Defendant knew that David was insured. She had planned to buy a house and pay bills with the insurance proceeds. Regarding the killing, she said, “It was just an easy out. It was stupid.”

Travis Hayes testified that on July 13, in defendant’s presence, Andrews solicited him to kill David. Andrews had a nine-millimeter handgun strapped to his side. Defendant told Hayes she could get him whatever money he wanted. Hayes said he would consider it. Defendant and Andrews gave Hayes $100. Later, Hayes told Andrews he could not go through with the crime. Two days after that, Andrews told Hayes that David had already been killed and asked Hayes to bum David’s car. Hayes did not do so.

James Plantz testified that a few days before David’s death, Morris asked him if he or anyone he knew would kill someone for $100. Morris said he would help, but the other person would have to do the actual killing. Plantz refused to help Morris. The day before the killing, Morris made statements to Plantz indicating involvement in the plan to kill David. Later that day, Andrews told Plantz that he had hired someone to do a killing for $100, but that the person had backed out. The next day, Morris told Plantz that Andrews had killed the intended victim by shooting him. Morris took out a nine-millimeter pistol, ejected a spent casing from it, and said, “Oh, there it is.”

Morris testified on his own behalf. He said that Andrews had talked to him about killing David, but Morris thought the proposal was “bullshit.” He never intended to help Andrews kill David. The night of the killing, defendant asked him to come to the Russo home in order, he assumed, to pick up some drugs. At the house, Andrews handed him a gun and told him he could have $100 if he killed David. Morris declined and returned the gun to Andrews. Andrews then took the gun, wrapped it in a towel as a silencer, and entered David’s room with defendant. Morris heard a muffled shot. He then helped Andrews and defendant dispose of David’s body and the gun. He felt he had to because his fingerprints were on the gun.

B. Procedural History

The prosecution charged defendant, Andrews, and Morris with David’s murder under the special circumstances of murder for financial gain and lying in wait, and with conspiracy to murder David. (Pen. Code, §§ 182, 187, 190.2, subd. (a)(1) & (15).) (It also charged defendant with another count not relevant to the issue before us.) As part of the conspiracy charge, the prosecution alleged the tMee committed 10 overt acts: (1) Morris asked Plantz if he knew anyone who would kill David; (2) defendant gave Andrews David’s handgun; (3) Andrews and defendant asked Hayes to help them kill David; (4) defendant told Hayes she would pay Mm whatever he asked if he would help kill David; (5) Andrews gave Hayes $100 after he and defendant asked Mm to help kill David; (6) defendant contacted Andrews after David went to sleep the night of the killing; (7) Andrews and Morris went to the Russo house that Mght; (8) defendant let Andrews and Morris into the house; (9) defendant let Andrews and Morris into the bedroom of her sleeping husband David; and (10) defendant, Andrews, and Morris fatally shot David in the back of the head with the nine-millimeter Beretta wMle he was asleep.

During argument to the jury, the prosecutor asserted that the jury did not have to agree on any specific overt act as long as it agreed unammously that at least one was committed. Later, out of the jury’s presence, the trial court expressed the same view. Accordingly, it instructed the jury that all the jurors had to agree on the verdict but not also that it had to agree unammously on a specific overt act.

The jury convicted defendant of first degree murder and conspiracy to murder and found the special circumstance allegations true. The verdict form

On appeal, defendant argued, among other things, that the trial court erred prejudicially in not requiring the jury to agree unanimously on at least one specific overt act. The Court of Appeal agreed that the court erred, but it found the error harmless. It modified the judgment in a way not relevant here and affirmed it as modified. We granted defendant’s petition for review, limited to the issue regarding jury unanimity as to a specific overt act.

At common law, and still today where unchanged by statute, conspiracy consisted of the unlawful agreement, and no overt act was required to establish the crime. (See generally Perkins & Boyce, Criminal Law (3d ed. 1982) § 5.B.3., pp. 685-687; 2 LaFave & Scott, Substantive Criminal Law (1986) Conspiracy—Limits of Liability, § 6.5(c), pp. 93-94.) Today, many jurisdictions, including California, require proof of an overt act. {Ibid.) In California, “No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement. . . .” (Pen. Code, § 184; see also id. § 182, subd. (b).) Thus, “A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403 , 416 [ 84 Cal.Rptr.2d 665 , 975 P.2d 1071 ].)

One purpose of the overt act requirement is to provide a locus peniten tiae—an opportunity to repent—so that any of the conspirators may reconsider and abandon the agreement before talcing steps to further it, and thereby avoid punishment for the conspiracy. (People v. Morante, supra, 20 Cal.4th at p. 416, fn. 4; People v. Zamora (1976) 18 Cal.3d 538 , 549, fn. 8 [ 134 Cal.Rptr. 784 , 557 P.2d 75 ].) Another purpose is “to show that an indictable conspiracy exists” because “evil thoughts alone cannot constitute a criminal offense.” (People v. Olson (1965) 232 Cal.App.2d 480 , 489 [ 42 Cal.Rptr. 760 ]; see also People v. Jones (1986) 180 Cal.App.3d 509 , 516 [ 225 Cal.Rptr. 697 ].)

This requirement of unanimity as to the criminal act “is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.” (People v. Sutherland (1993) 17 Cal.App.4th 602 , 612 [ 21 Cal.Rptr.2d 752 ].) For example, in People v. Diedrich, supra, 31 Cal.3d 263 , the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. We found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. (Id. at pp. 280-283.) “The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.” (People v. Deletto (1983) 147 Cal.App.3d 458 , 472 [ 195 Cal.Rptr. 233 ].)

On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the “theory” whereby the defendant is guilty. (See generally People v. Jenkins (2000) 22 Cal.4th 900 , 1024-1026 [ 95 Cal.Rptr.2d 377 , 997 P.2d 1044 ].) The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (Pen. Code, § 459.) If the evidence showed two different entries with burglarious intent, for example,

Defendant argues that the overt act requirement is an “element” of the crime of conspiracy, thus requiring the specific unanimity instruction. She also notes that Penal Code section 182, subdivision (b), requires that “one of the acts alleged [in the indictment or information be] proved.” The Attorney General counters that the overt act is not an element for these purposes but merely a theory of the case. We believe that asking whether the overt act is an “element” of the crime is not helpful in deciding this question. We ourselves have described the overt act requirement as an element of conspiracy. (E.g., People v. Swain (1996) 12 Cal.4th 593 , 600 & fn. 1 [ 49 Cal.Rptr.2d 390 , 909 P.2d 994 ].) We do not doubt that the requirement of an overt act is an element of the crime of conspiracy in the sense that the prosecution must prove it to a unanimous jury’s satisfaction beyond a reasonable doubt. But that element consists of an overt act, not a specific overt act. Moreover, Penal Code section 182, subdivision (b), merely says one of the acts must be proved; it does not say about what the jury must be unanimous.

The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a “particular crime” (People

In this case, the question thus becomes whether the evidence suggested two discrete crimes, i.e., two discrete conspiracies, or merely possible uncertainty on how the defendant is guilty of a particular conspiracy. The overt act, although necessary to establish a punishable conspiracy, need not itself be criminal. (People v. Robinson (1954) 43 Cal.2d 132 , 139 [ 271 P.2d 865 ]; People v. Jones, supra, 180 Cal.App.3d at p. 516.) If only one agreement existed, only one conspiracy occurred, whatever the precise overt act or acts may have been. The evidence here showed but one agreement, and hence but one conspiracy—the agreement by defendant and at least one other person (Morris or Andrews or both) to murder David. Although the jury had to find at least one overt act, whether it was one or another of several possible acts only concerns the way in which the crime was committed, i.e., the theory of the case, not whether discrete crimes were committed. Thus, if the jurors disagreed as to what overt act was committed, and agreed only that an overt act was committed, they would still have unanimously found defendant guilty of a particular conspiracy. No danger exists that some jurors would think she was guilty of one conspiracy and others would think she was guilty of a different one.

Moreover, any one of the conspirators, and not necessarily the charged defendant, may commit the overt act to consummate the conspiracy. (Pen. Code, § 184; People v. Robinson, supra, 43 Cal.2d at p. 140; People v. Jones, supra, 180 Cal.App.3d at pp. 515-516.) Disagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy. When two or more persons

George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.