THE PEOPLE, Plaintiff and Appellant, v. JAMAL K. SWAIN et al., Defendants and Appellants, 12 Cal. 4th 593

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. 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. [ID ... [H 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 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. 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].) “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 conspiring]” “[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 thereof. (Pen.

Code, §§ 182, subd. (a)(1), 184.) “Conspiracy is a ‘specific intent’ crime. . . . The specific intent required divides logically into two elements: (

a) the intent to agree, or conspire, and (

b) the intent to commit the offense which is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.” (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal.Rptr. 516, 524 P.2d 1300] (Horn), citations omitted, italics added.) In some instances, the object of the conspiracy “is defined in terms of proscribed conduct.” (Model Pen. Code & Commentaries, supra, com. 2(

c) to § 5.03, p. 402.) In other instances, it “is defined in terms of ... a proscribed result under specified attendant circumstances.” (Ibid.) Another provision of the Penal Code,

section 182, the current version of which was enacted in 1955, prescribes the punishment for the crime of conspiracy. “If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit.

If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.” Turning next to the elements of the target offense of the conspiracy here in issue, Penal Code

section 187 defines the crime of murder as the “unlawful killing of a human being . . . with malice aforethought.” (Pen. Code, § 187, subd. (a).) Malice aforethought “may be express or implied.” (Pen. Code, § 188.) “It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Ibid.) This court has observed that proof of unlawful “intent to kill” is the functional equivalent of express malice. (See People v.

Saille (1991) 54 Cal.3d 1103, 1114 [2 Cal.Rptr.2d 364, 820 P.2d 588] [“Pursuant to the language of [Penal Code]

section 188, when an intentional killing is shown, malice aforethought is established.”].) Penal Code

section 189 distinguishes between murders in the first degree and murders in the second degree. “All murder which is perpetrated by means of a destructive device or explosive . . . , poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, [certain enumerated felonies], or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.

All other kinds of murders are of the second degree.” (Italics added.) California law, in turn, recognizes three theories of second degree murder.

The first is unpremeditated murder with express malice. (See CALJIC No. 8.30 [“Murder of the second degree is [also] the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation.”].) The second, of particular concern here, is implied malice murder. (See CALJIC No. 8.31 [“Murder of the second degree is [also] the unlawful killing of a human being when: [*][] 1. The killing resulted from an intentional act, [H 2.

The natural consequences of the act are dangerous to human life, and [00 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [00 When the killing is the direct result of such

an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.”].) The third theory is second degree felony murder. (See CALJIC No. 8.32 [“The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs [during] [as the direct causal result of] the commission or attempted commission of [certain crimes] is murder of the second degree when the perpetrator had the specific intent to commit such crime.”] [Third bracket added].) As noted, the jury in this case was instructed on the elements of murder, including principles of implied malice second degree murder.

Under the instructions given, the jury could have based its verdicts finding defendants guilty of conspiracy to commit murder in the second degree on a theory of implied malice murder. The Court of Appeal below concluded it could find no authority supportive of the proposition that the crime of conspiracy to commit murder in the second degree must be accompanied by an intent to kill (i.e., express malice). Instead, the court relied on the holding in People v.

Alexander (1983) 140 Cal.App.3d 647 [189 Cal.Rptr. 906] (Alexander), which case suggested that implied malice is “the most logical route" to establishing the crime of “conspiracy to commit murder in the second degree.” (Id. at p. 665.) Alexander, in turn, purported to place principal reliance on this court’s opinion in Horn, supra, 12 Cal.3d 290, interpreting Horn as holding that conspiracy to commit murder in the second degree can be based on a theory of implied malice murder. As will be explained, Horn, supra, 12 Cal.3d 290, did not so hold.

Nor do we find the rationale of Alexander, supra, 140 Cal.App.3d 647, otherwise sound in reasoning or result to the extent it concluded conspiracy to murder can be grounded on implied malice murder. Before turning to those cases, some preliminary observations will shed light on the logical answer to the question at hand. We have noted that conspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, here murder, the object of the conspiracy.

Since murder committed with intent to kill is the functional equivalent of express malice murder, conceptually speaking, no conflict arises between the specific intent element of conspiracy and the specific intent requirement for such category of murders. Simply put, where the conspirators agree or conspire with specific intent to kill and commit an overt act in furtherance of such agreement, they are guilty of conspiracy to commit express malice murder. The conceptual difficulty arises when the target offense of murder is founded on a theory of implied malice, which requires no intent to kill.

Implied malice murder, in contrast to express malice, requires instead an intent to do some act, the natural consequences of which are dangerous to human life. “When the killing is the direct result of such

an act,” the requisite mental state for murder—malice aforethought—is implied. (CALJIC No. 8.31, italics added.) In such circumstances, “. . . it is not necessary to establish that the defendant intended that his act would result in the death of a human being.” (Ibid.) Hence, under an implied malice theory of second degree murder, the requisite mental state for murder—malice aforethought —is by definition “implied,” as a matter of law, from the specific intent to do some act dangerous to human life together with the circumstance that a killing has resulted from the doing of such act.

Stated otherwise, all murders require, at the core of the corpus delicti of the offense, a “killing.” (People v. Cullen (1951) 37 Cal.2d 614, 624 [234 P.2d 1]; People v. Ives (1941) 17 Cal.2d 459, 463 [110 P.2d 408]; 1 Witkin & Epstein, Cal. Criminal Law, supra, Elements of Crime, § 136, p. 152; 1 Wharton’s Criminal Law (15th ed. 1993) §28, p. 172.) “Murder is the unlawful killing of a human being . . . with malice aforethought.” (Pen.

Code, § 187, subd. (a).) But only in the case of implied malice murder is the requisite mental state—malice aforethought—implied from the specific intent to do some act other than an intentional killing and the resulting circumstance: a killing that has in fact occurred as “the direct result of such

an act.” (CALJIC No. 8.31.) The element of malice aforethought in implied malice murder cases is therefore derived or “implied,” in part through hindsight so to speak, from (

i) proof of the specific intent to do some act dangerous to human life and (ii) the circumstance that a killing has resulted therefrom. It is precisely due to this nature of implied malice murder that it would be illogical to conclude one can be found guilty of conspiring to commit murder where the requisite element of malice is implied.

Such a construction would be at odds with the very nature of the crime of conspiracy—an “inchoate” crime that “fixes the point of legal intervention at [the time of] agreement to commit a crime,” and indeed “reaches further back into preparatory conduct than [the crime of] attempt” (Model Pen. Code & Commentaries, supra, com. 1 to § 5.03, pp. 387-388)—precisely because commission of the crime could never be established, or be deemed complete, unless and until a killing actually occurred.

By analogy, we have reached similar conclusions respecting the nature of proof of the element of malice required to establish the inchoate crimes of assault with intent to commit murder and attempted murder. In People v. Murtishaw (1981) 29 Cal.3d 733 [175 Cal.Rptr. 738, 631 P.2d 446] (Murtishaw), the defendant was convicted of three counts of first degree murder and one count of assault with intent to commit murder, in violation of former Penal Code

section 217. (29 Cal.3d at p. 762.) The jury was instructed that the crime required proof of specific intent to commit murder, but was further instructed that murder can be based on express malice, implied malice, or felony murder.

However, the jury was also instructed that for intent to commit murder, the necessary specific intent “is to unlawfully kill.” (Id. at p. 763.) This court found such instructions, taken as a whole, were contradictory in that they defined the requisite mental element of the offense in two different ways—intent to kill and intent to murder—and by implication defined the latter to include theories of murder not requiring intent to kill, i.e., implied malice murder and felony murder. (Ibid.; accord, People v. Coleman (1989) 48 Cal.3d 112, 137-138 [255 Cal.Rptr. 813, 768 P.2d 32]; People v.

Johnson (1981) 30 Cal.3d 444, 447-449 [179 Cal.Rptr. 209, 637 P.2d 676].) We went on in Murtishaw, supra, 29 Cal.3d 733, to observe that “[established California authority . . . demonstrates that the concept of implied malice, insofar as it permits a conviction without proof of intent to kill, is . . . inapplicable to the assault [with intent to commit murder] charge.” (Id. at p. 764.) We then explained: “In People v.

Mize (1889) 80 Cal. 41 [22 P. 80], the court instructed the jury that defendant would be guilty of assault with intent to commit murder if his acts were such that he could have been convicted of murder had the victim died.

The court held the instruction erroneous: ‘ “To constitute murder, the guilty person need not intend to take life; but to constitute an attempt to murder, he must so intend.” [Citation.] “The wrongdoer must specifically contemplate taking life; and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder.” ’ (80 Cal. at p. 43.) (Accord, People v.

Miller (1935) 2 Cal.2d 527, 532-533 [42 P.2d 308, 98 A.L.R. 913].)” (Murtishaw, supra, 29 Cal.3d at p. 764.) We further noted that “. . . once a defendant intends to kill, any malice he may harbor is necessarily express malice. Implied malice . . . cannot coexist with a specific intent to kill. To instruct on implied malice in that setting, therefore, may confuse the jury by suggesting that they can convict without finding a specific intent to kill.” (Id. at pp. 764-765, fn. omitted.) Similarly, in People v.

Collie (1981) 30 Cal.3d 43 [177 Cal.Rptr. 458, 634 P.2d 534] (Collie), we applied the above noted reasoning of Murtishaw, supra, 29 Cal.3d 733, to the crime of attempted murder. To constitute an attempt, there must be (

i) proof of specific intent to commit the target crime and (ii) a direct, ineffectual act done towards its commission. (1 Witkin & Epstein, Cal. Criminal Law, supra, Elements of Crime, § 143, p. 160.) Concluding in Collie that the trial court erred in instructing the jury it could convict the defendant of attempted murder on the basis of implied malice and without a finding of intent to kill, we explained: “ ‘Specific intent to kill is a necessary element of attempted murder.

It must be proved, and it cannot be inferred merely from the commission of another dangerous crime.’ [Citation.]” (Collie, supra, 30 Cal.3d at p. 62; accord, People v. Visciotti (1992) 2 Cal.4th 1, 58-59 [5 Cal.Rptr.2d 495, 825 P.2d 388]; People v. Lee (1987) 43 Cal.3d 666, 670 [238 Cal.Rptr. 406, 738 P.2d 752]; People v. Ratliff (1986) 41 Cal.3d 675, 695-696 [224 Cal.Rptr. 705, 715 P.2d 665].) Finally, in People v.

Bottger (1983) 142 Cal.App.3d 974 [191 Cal.Rptr. 408], the court applied reasoning similar to that employed by this court in Murtishaw, supra, 29 Cal.3d 733, and Collie, supra, 30 Cal.3d 43, to yet a third inchoate crime related to murder—solicitation to commit murder. Solicitation is complete upon the making of the request or proposal, even when the person solicited immediately rejects it. (1 Witkin & Epstein, Cal.

Criminal Law, supra, Elements of Crime, § 124, p. 143.) Unlike conspiracy, proof of solicitation requires neither agreement nor commission of an overt act. (Ibid.) Unlike attempt, it requires no direct, unequivocal act toward the commission of the target offense. (Id., § 143, p. 160.) The Bottger court held that, as with assault with intent to commit murder and attempted murder, solicitation for murder requires intent to kill and cannot be based on a theory of implied malice. (People v. Bottger, supra, 142 Cal.App.3d at pp. 980-982; see also People v.

Phillips (1985) 41 Cal.3d 29, 77 [222 Cal.Rptr. 127, 711 P.2d 423] [citing Bottger with approval for the proposition that solicitation for murder requires specific intent to kill].) As noted, the opinion in Alexander, supra, 140 Cal.App.3d 647, on which the Court of Appeal relied in the present case, concluded conspiracy to commit murder can be based on a theory of implied malice murder. (Id. at p. 665.) The Alexander court took note of the holdings in Murtishaw, supra, 29 Cal.3d 733, and Collie, supra, 30 Cal.3d 43, but found them inapposite in the context of establishing malice for conspiracy to commit murder, apparently believing that to do so would run afoul of this court’s holding in Horn, supra, 12 Cal.3d 290. (Alexander, supra, 140 Cal.3d at pp. 665-666.) In this regard the Alexander court erred.

We turn, next, to our decision in Horn. The defendants in Horn, supra, 12 Cal.3d 290, were convicted of conspiracy to commit murder in the first degree, arson, and the unlawful manufacture of a firebomb.

At trial the defendants presented evidence suggesting that at the time of the conspiracy they were so intoxicated they lacked the capacity to harbor malice aforethought, thus making their unlawful agreement, at most, a conspiracy to commit voluntary manslaughter. (Id. at p. 293.) The trial court, however, refused to instruct the jury that diminished capacity arising from voluntary intoxication could reduce a homicide to manslaughter, thus leaving the jury with an all-or-nothing choice on the conspiracy to commit murder count.

The Horn court concluded such refusal to instruct on conspiracy to commit manslaughter required reversal of the conspiracy to commit murder counts. The court in Horn recognized that earlier, in People v.

Kynette (1940) 15 Cal.2d 731 [104 P.2d 794] (Kynette), we had stated 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.’ ” (Horn, supra, 12 Cal.3d at p. 298, quoting Kynette, supra, 15 Cal.2d at p. 745.) This was so because, at the time Kynette was decided, premeditation meant merely “advance planning of the crime.” (Horn, supra, 12 Cal.3d at p. 298.) As of the time Horn, supra, 12 Cal.3d 290, was decided, however, later cases had redefined premeditation as “requir[ing] proof that the defendant ‘could maturely and meaningfully reflect upon the gravity of his contemplated act.’ [Citations.]” (Id. at p. 298.) Furthermore, although a conviction of murder or conspiracy to commit murder in any degree requires proof of malice aforethought, cases postdating Kynette, supra, 15 Cal.2d 731, had held that malice could be rebutted by a showing that the defendant’s mental capacity was reduced by mental illness, mental defect or intoxication, i.e., recognition of the “diminished capacity defense.” (See People v.

Graham (1969) 71 Cal.2d 303, 315 [78 Cal.Rptr. 217, 455 P.2d 153]; People v.

Gorshen (1959) 51 Cal.2d 716, 727 [336 P.2d 492]; Horn, supra, 12 Cal.3d at p. 299.) The Horn court looked to these changes in the law postdating Kynette, supra, 15 Cal.2d 731, considered the evidence of Horn’s diminished capacity caused by intoxication, noted the absence of any basis on which to conclude that the jury, as instructed, had rejected such evidence in convicting Horn and his codefendant of conspiracy to commit murder, and concluded it was therefore reversible error to fail to instruct on the lesser offense of conspiracy to commit manslaughter. (Horn, supra, 12 Cal.3d at pp. 300-301.) More pertinent to our present analysis, nothing in the court’s decision in Horn suggests that conspiracy to commit murder can be committed without intent to kill (express malice).

Indeed, looking to the precise facts of that case, because the conspiracy to murder in Horn involved a firebomb and because, under Penal Code

section 189 as then worded, “[a]ll murder which is perpetrated by means of a bomb ... is murder in the first degree,” verdicts of conspiracy to commit murder in the second degree in Horn would have been contrary to law, and the Horn court so recognized. (Horn, supra, 12 Cal.3d at pp. 299-300.) In short, neither the facts of Horn, its rationale, nor its holding mandates the view that conspiracy to commit murder can be based on a theory of implied malice. We conclude that a conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice.

II The question remains whether the instructions on implied malice in this case were prejudicial, requiring reversal of defendants’ convictions of conspiracy to commit murder designated by the jury as murder in the second degree. We conclude the convictions must be reversed. The jury was instructed on theories of both express and implied malice. They returned general verdicts, which do not inform us on what theory they found the requisite element of malice necessary to convict on the charges of conspiracy to commit murder.

Under the implied malice instructions, the jury could have found malice without finding intent to kill. (Pen. Code, § 188.) The prosecutor repeatedly referred to implied malice in the closing arguments, stating at one point that “. . . this could very easily be an implied malice case.” On this record, under the harmless error test traditionally applied to misinstruction on the elements of an offense, namely, whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (Chapman v.

California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065]; see People v. Harris (1994) 9 Cal.4th 407, 424-425 [37 Cal.Rptr.2d 200, 886 P.2d 1193], and cases cited), reversal is required, for it cannot be determined beyond a reasonable doubt that the erroneous implied malice murder instructions did not contribute to the convictions on the conspiracy counts.

Nor is there anything else discoverable from the verdicts that would enable us to conclude that the jury necessarily found the defendants guilty of conspiracy to commit murder on a proper theory, i.e., based on express malice or intent to kill. (People v. Harris, supra, 9 Cal.4th at p. 419.) Defendant Chatman was convicted of second degree murder, which conviction itself could have been based on a theory of implied malice; defendant Swain was found not guilty of murder and its lesser offenses.

That portion of the Court of Appeal’s judgment affirming defendants’ convictions of conspiracy to commit murder must therefore be reversed. III We are mindful that conceptually difficult questions remain regarding whether there exists a viable offense of conspiracy to commit express malice “second degree” murder, and if there be such an offense, what is the applicable punishment.

The question also remains whether defendants in this case may be retried for conspiracy to commit murder in the first degree given the jury’s determination that they conspired to commit murder and its further designation of that murder as having been in the second degree. Confusion has arisen in the wake of several key changes to the law of murder and, in particular, to the definition of premeditation, all of which postdated Horn, supra, 12 Cal.3d 290, and which have called into question the continued validity of certain aspects of that opinion’s holding.

First, the characterization of premeditation upon which Horn, supra, 12 Cal.3d 290, relied, namely, a showing that the defendant was able to “ ‘maturely and meaningfully reflect upon the gravity of his contemplated act’ ” (Horn, supra, 12 Cal.3d at p. 298, italics added, quoting People v. Wolff (1964) 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959]), has itself passed into history. Seven years after Horn was decided, the Legislature amended Penal Code

section 189 to provide that “To prove the killing was ‘deliberate and premeditated,’ it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act" (Stats. 1981, ch. 404, § 7, p. 1593, italics added.) Second, since Horn, supra, 12 Cal.3d 290, was decided, the Legislature has abolished the defense of diminished capacity. (See Stats. 1981, ch. 404, § 4, p. 1592 [enacting Pen. Code, § 28].) As one court has observed: “Horn, decided in 1974, was premised largely on the continued existence of the diminished capacity defense.

In light of the subsequent legislative abrogation of that defense, we question the continued validity of Horn and Alexander [supra, 140 Cal.App.3d 647].” (People v.

Miller (1992) 6 Cal.App.4th 873, 878, fn. 2 [8 Cal.Rptr.2d 193].) It can be argued that the current statutory definition of premeditation is once again akin to the definition of premeditation in effect when this court decided Kynette, supra, 15 Cal.2d 731, namely, mere “advanced planning of the crime.” Thus, the rationale of Horn, supra, 12 Cal.3d 290, would no longer afford any principled basis on which to distinguish between the mental state required for conspiracy to commit murder; the specific intent to agree and conspire with intent to kill—and the mental state of premeditated first degree murder.

Stated differently, conspiring to murder with the requisite intent to kill is arguably functionally indistinguishable from the mental state of premeditating the target offense of murder. If that be the case, then logically, all conspiracy to commit murder is necessarily “conspiracy to commit first degree murder,” or perhaps more accurately stated, conspiracy to commit murder punishable as first degree murder under the provisions of Penal Code

section 182. The arguably ambiguous provisions of Penal Code

section 182, which, by their express terms, purport only to prescribe the proper punishment for conspiracy convictions, but which were construed in Horn, supra, 12 Cal.3d 290, 298, footnote 5, as creating or authorizing conviction of the offense of “conspiracy to commit second degree murder,” have further compounded the confusion. The controversial footnote in Horn states: “Kynette’s assertion that a conspiracy to commit murder is always a conspiracy to commit first degree murder is inconsistent with the present language of Penal Code

section 182. When Kynette was decided,

section 182 provided simply that conspirators to commit a felony ‘shall be punishable in the same manner and to the same extent as provided for the punishment of the commission of the said felony.’ The current

section 182, enacted in 1955, is much more specific: ‘If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit.

If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.’ [*j0 As this language is written and punctuated, it plainly authorizes the trier of fact to return a verdict finding conspiracy to commit murder in the second degree. Only if the trier of fact fails to determine the degree is a conspiracy to commit murder punished as one to commit first degree murder.

Since the Legislature has authorized a verdict of conspiracy to commit second degree murder, it clearly does not believe that crime to be a logical impossibility.” (Horn, supra, 12 Cal.3d at p. 298, fn. 5, first italics added; second italics in original.) The point made in the Horn footnote might be refuted by concluding that the portion of Penal Code

section 182 quoted in italics above was added by the Legislature for the very purpose of effectuating this court’s holding in Kynette, supra, 15 Cal.2d 731, that is to say, by expressly providing that all conspiracy to commit murder is conspiracy to commit murder in the first degree, and that hence all such conspiracies should be punished as first degree murders, with no consequent requirement that the jury further determine the degree of the target offense of murder. The Horn court’s contrary

interpretation—that “[o]nly if the trier of fact fails to determine the degree is a conspiracy to commit murder punished as one to commit first degree murder . . (Horn, supra, 12 Cal.3d at p. 298, fn. 5)—does seem at odds with the general proposition, embodied in Penal Code

section 182, that a defendant should receive the benefit of a jury’s failure to designate the degree of the target offense of the conspiracy. On the other hand, the relevant language of Penal Code

section 182 quoted above, as suggested by the court in Horn, supra, 12 Cal.3d at page 298, footnote. 5, can literally be read as contemplating verdicts of “conspiracy to commit second degree murder.” Nor would such a verdict necessarily be inconsistent with the holding we reach today, for one can be found guilty of unpremeditated murder with express malice in the second degree. (See CALJIC No. 8.30.) The plain fact remains, however, that the analysis suggested in footnote 5 in Horn, supra, 12 Cal.3d at page 298, was dictum.

As already explained, under the particular facts of that case, had the jury returned verdicts convicting Horn and his codefendant of “conspiracy to commit second degree murder,” such verdicts would have been contrary to law as the defendants’ plan to use a “bomb” elevated the target offense to murder in the first degree as a matter of law. Furthermore, the provisions of Penal Code

section 182 are expressly addressed to the proper punishment for conspiracy, including conspiracy to commit murder. Punishment was simply not at issue in Horn, supra, 12 Cal.3d 290. “ ‘It is the general rule that the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.’ ”” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734-735 [257 Cal.Rptr. 708, 111 P.2d 406], quoting River Farms Co. v. Superior Court (1933) 131 Cal.App. 365, 369 [21 P.2d 643]; accord, Security Pacific National Bank v.

Wozab (1990) 51 Cal.3d 991, 1003-1004 [275 Cal.Rptr. 201, 800 P.2d 557].) Perhaps the lesson bears repeating here. We have determined that defendants’ convictions for conspiracy to commit murder in the second degree must be reversed. The issue of proper punishment for those convictions is therefore no longer in controversy before us and is moot.

Moreover, in light of our determination that reversal of the conspiracy convictions is compelled, the question of former jeopardy, or any other question regarding further proceedings, is premature unless and until the People elect to pursue such further proceedings and, in particular, seek to retry defendants on the theory of conspiracy to commit first degree murder. (See People v. McDonald (1984) 37 Cal.3d 351, 383-384, fn. 31 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011].) We therefore leave the determination of those questions for another day.

Conclusion To the extent the judgment of the Court of Appeal affirmed defendants’ convictions of conspiracy to commit murder, it is reversed. In all other respects the judgment of the Court of Appeal is affirmed. Lucas, C. J., George, J., and Werdegar, J., concurred. As Witkin summarizes it: “[t]he elements [of conspiracy] are (

a) agreement . . . ; (

b) specific intent. . . ; (

c) two or more persons . . . ; (

d) unlawful object or means . . . ; and (

e) overt act. . . .” (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 156, p. 174.) Of course unreasonable self-defense or a heat of passion defense can further reduce an intentional killing to voluntary manslaughter. The provision of Penal Code

section 189, making all murders “perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death” murders of the first degree, was added after commission of the crimes in this case (see Stats. 1993, ch. 611, § 4.5, eff. Oct. 1, 1993, operative Jan. 1, 1994) and thus does not apply herein. PenaI Code

section 217 was repealed in 1981 for reasons not relevant here. (See Murtishaw, supra, 29 Cal.3d at pp. 762-763, fn. 24.)