THE PEOPLE, Plaintiff and Respondent, v. MARIO ALBERTO CORTEZ, Defendant and Appellant, 18 Cal. 4th 1223

Opinion BAXTER, J. Introduction In People v.

Swain (1996) 12 Cal.4th 593 [49 Cal.Rptr.2d 390, 909 P.2d 994] (Swain), we held that the crime of conspiracy to commit murder requires a finding of unlawful intent to kill, i.e., express malice, and that such offense cannot be committed if the underlying criminal objective is second degree implied malice murder. (Id. at p. 603.) Left open in Swain was the question of whether the crime of conspiracy to commit murder is further divisible into degrees with differing punishments, or whether it is a unitary offense for which the punishment is that prescribed for murder in the first degree in every instance. (Id. at p. 608.) We granted review in this case to decide that question.

We conclude all conspiracy to commit murder “is necessarily ‘conspiracy to commit [premeditated] first degree murder’ ” (id. at p. 609) and is therefore punishable in the same manner as first degree murder pursuant to the provisions of Penal Code

section 182. Our order granting review additionally asked the parties to address the related question of whether the trial court below erred in failing to instruct the jury on premeditation and deliberation with regard to the conspiracy to commit murder charge.

Given our holding that conspiracy to commit murder is a unitary offense punishable in every instance with the penalty prescribed for first degree murder, there is no occasion or requirement for the jury to further determine the “degree” of the underlying target offense of murder, and thus no need for specific instruction on premeditation and deliberation respecting the conspiracy charge. The judgment of the Court of Appeal reached these same conclusions and accordingly shall be affirmed.

Factual and Procedural Background The question before us is one of law; the facts are not disputed and can be briefly summarized. This prosecution arose out of a 1992 Los Angeles street gang shooting. At that time, defendant Mario Alberto Cortez (also known as “Psycho”) had been a member of the gang Crazy Cats for about one year.

In the summer of 1992, the Crazy Cats and another street gang, the King Boulevard Stoners (also known as the “Stoners” or “KBS”), were “having a war,” with “shootings going back and forth daily.” Three weeks prior to the shootings in this case, a member of the Crazy Cats named Javaco (also known as “Smiley”) had been killed in a drive-by shooting attributed to the King Boulevard Stoners. After midnight on July 13, 1992, defendant and another member of the Crazy Cats, Mauricio Corletto (also known as “Dusty”), decided to retaliate for Javaco’s death by doing a drive-by shooting in King Boulevard Stoners territory.

At that time, the King Boulevard Stoners spent their summer nights smoking marijuana and drinking beer in the Wadsworth Junior High School schoolyard. Defendant and Corletto drove to this schoolyard in a stolen Cadillac. Defendant drove the stolen vehicle; Corletto sat in the rear seat with a loaded .357 magnum for use in the drive-by shooting. Substantial prosecution evidence, including tape-recorded statements given to police by both defendant and a King Boulevard Stoners gang member, established that Corletto leaned out of the Cadillac’s window, yelled “Crazy Cats,” and fired four shots into the schoolyard.

King Boulevard Stoners members returned the fire, hitting Corletto in the temple. Defendant attempted to drive away but the Cadillac stalled and he was forced to flee on foot. Several carloads of Crazy Cat gang members arrived, the stolen Cadillac was retrieved, and more gunfire was exchanged. When the smoke cleared and authorities arrived on the scene, paramedics found Corletto lying on the ground with a gunshot wound to the head. He was placed on life support but died from his wounds the following day.

Defendant testified at trial and in some respects sought to contradict his earlier tape-recorded description of these facts. On direct examination he claimed that although he and Corletto originally planned a drive-by shooting, they changed their minds when they could not convince any other Crazy Cats members to join them. The reason they went to the King Boulevard schoolyard was “to check it out to see who was there, how many of them were there.” Corletto was killed when the Cadillac stalled and King Boulevard Stoners members attacked.

However, prior to waiving his rights and furnishing the tape-recorded statement to police, defendant told detectives he had gone to the schoolyard in furtherance of the planned drive-by shooting, for the purpose of avenging the murder of fellow Crazy Cats member Smiley. On cross-examination defendant once again admitted that he and Corletto had gone to the schoolyard while armed to “do a drive-by shooting” and avenge fellow gang member Smiley’s death. Defendant was charged with Corletto’s murder (Pen. Code, §§ 187, 189) on the theory that his (defendant’

s) actions provoked the King Boulevard Stoners’s, response that killed Corletto. He was also charged with conspiracy to commit murder on the theory that he agreed and conspired with Corletto to murder one or more members of the King Boulevard Stoners by means of a drive-by shooting. Both counts included allegations of firearm use (Pen. Code, § 12022, subd. (a)(1)) and street gang participation (Pen. Code, § 186.22, subd. (b)(1)). Defendant was convicted of conspiracy to commit murder, and the firearm use allegation was found true.

The jury was unable to reach a verdict on the murder charge; that count was ultimately dismissed on the People’s motion, as were the street gang enhancements. Defendant was sentenced to a term of 25 years to life, with an additional 1-year term for the firearm use finding. On appeal, he urged that the trial court erred in failing to require the jury to determine the degree of the murder alleged as the target offense of the charged conspiracy. The Court of Appeal rejected the claim and affirmed the judgment.

We granted review to determine whether the crime of conspiracy to commit murder is divisible into degrees with differing punishments, or whether all conspiracies to commit murder are conspiracies to commit first degree murder as a matter of law. Discussion I. In Swain, supra, 12 Cal.4th at page 603, we held that the crime of conspiracy to commit murder requires a finding of unlawful intent to kill, i.e., express malice, and that conspiracy to commit murder cannot be based on the underlying criminal objective or target offense of second degree implied malice murder.

We explained that conspiracy is an inchoate crime that does not require the commission of the substantive target offense that is the object of the conspiracy (id. at p. 599; see People v. Manson (1977) 71 Cal.App.3d 1, 47 [139 Cal.Rptr. 275]), and that “ ‘[a]s 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.)” (Swain, supra, 12 Cal.4th at p. 600.) We further explained that, as regards the target offense of murder, unlawful intent to kill is the functional equivalent of express malice. (Id. at p. 601; see People v. Saille (1991) 54 Cal.3d 1103, 1114 [2 Cal.Rptr.2d 364, 820 P.2d 588].) We went on to observe, 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.” (Swain, supra, 12 Cal.4th at p. 602, original italics.) Swain explains that the same reasoning cannot obtain where the underlying objective of the conspiracy is second degree implied malice murder. 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.” (Swain, supra, 12 Cal.4th at pp. 602-603, original italics.) “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’ . . . [citation]— precisely because commission of the crime could never be established, or deemed complete, unless and until a killing actually occurred.” (Swain, supra, 12 Cal.4th at p. 603, original italics.) In light of our unanimous conclusion in Swain that conviction of conspiracy to commit murder requires a finding of intent to kill and cannot be based on a theory of implied malice murder, and because the trial court had instructed the jury on theories of both express and implied malice and the jury had returned general verdicts, the defendants’ convictions of conspiracy to commit murder had to be reversed, and the issue of proper punishment for such convictions was therefore no longer in controversy and was moot. (Swain, supra, 12 Cal.4th at p. 610.) Accordingly, the Swain majority left open the “conceptually difficult question[] . . . 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.” (Id. at pp. 608, 610.) The issue is now ripe for decision in this case.

The conflict surrounding the nature of the crime of conspiracy to commit murder, and the appropriate punishment therefor, is directly traceable to two early decisions of this court—People v. Kynette (1940) 15 Cal.2d 731 [104 P.2d 794] (Kynette), overruled on another point in People v. Snyder (1958) 50 Cal.2d 190, 197 [324 P.2d 1], and People v. Horn (1974) 12 Cal.3d 290 [115 Cal.Rptr. 516, 524 P.2d 1300] (Horn)—and the interplay between those two decisions and the provisions of Penal Code

section 182 that make it unlawful-for “(a). . . two or more persons [to] conspire: [H] (1) [t]o commit any crime” and establish the punishment for all forms of conspiracy, including conspiracy to commit murder. When Kynette was decided over 50 years ago, Penal .Code

section 182 provided that a conspiracy was “punishable in the same manner and to the same extent as in this code provided for the punishment of the commission of the said felony.” (Pen. Code, § 182, as amended by Stats. 1919, ch. 125, § 1, p. 170; Kynette, supra, 15 Cal.2d at p. 744.) Defendant Kynette, the acting captain in charge of the Special Intelligence Unit of the Los Angeles Police Department, had been implicated with others in a conspiracy to kill one Harry Raymond.

Raymond was involved in the appointment and subsequent resignation of Los Angeles Police Commissioner Harry Munson, and was believed to possess certain damning information regarding Munson’s financial dealings that would “ ‘put the heat’ on the administration and ‘blow the lid off the city hall.’ ” {Kynette, supra, 15 Cal.2d at p. 739.) After Kynette’s special unit began surveillance of Raymond, the latter was nearly killed by a bomb which exploded when he attempted to start his car.

Evidence pointed to Kynette and his fellow officers as the responsible parties, and they were charged with a variety of crimes including conspiracy to commit murder which, at the time, was alternatively punishable by death. {Id. at pp. 739-744.) On appeal, Kynette urged that the trial court had erred in excusing certain potential jurors who could not, as a matter of conscience, vote for the death penalty.

The argument was based on the assertion that because there were no degrees of conspiracy, the jury was powerless to determine the degree of the target murder and was therefore equally powerless to impose the death penalty. {Kynette, supra, 15 Cal.2d at p. 744.) In rejecting the contention, this court expressly held 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.

A murder committed in pursuance of such an agreement would unquestionably be a ‘willful, deliberate and premeditated’ murder of the first degree and punishable by death or life imprisonment.” {Kynette, supra, 15 Cal.2d at p. 745, italics added.) In his separate concurring opinion in Swain, Justice Mosk observed: “In Kynette, we thereby impliedly held 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’ {People v. Kynette, supra, 15 Cal.2d at p. 745).

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.” {Swain, supra, 12 Cal.4th at pp. 613-614, original italics (cone. opn. of Mosk, J.).) Kynette’s conclusion that all conspiracy to commit murder is necessarily conspiracy to commit murder of the first degree was, and remains, a sound one because the current statutory definition of premeditation is 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.’ ” {Swain, supra, 12 CalÁth at p. 608.) As noted, conspiracy is a specific intent crime requiring both an intent to agree or conspire and a further intent to commit the target crime or object of the conspiracy. {Swain, supra, 12 Cal.4th at p. 602.) Murder that is premeditated and deliberated is murder of the first degree. “ ‘[Pjremeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’ (CALJIC No. 8.20 (5th ed. 1988), quoted with approval in People v.

Perez (1992) 2 Cal.4th 1117, 1123 [9 Cal.Rptr.2d 577, 831 P.2d 1159].) The process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ {People v. Thomas (1945) 25 Cal.2d 880, 900 [156 P.2d 7]; accord, People v. Perez, supra, 2 Cal.4th at p. 1127.)” {People v. Mayfield (1997) 14 Cal.4th 668, 767 [60 Cal.Rptr.2d 1, 928 P.2d 485]; see also People v.

Stanley (1995) 10 Cal.4th 764, 795 [42 Cal.Rptr.2d 543, 897 P.2d 481].) Consequently, it logically follows that where two or more persons conspire to commit murder—i.e., intend to agree or conspire, further intend to commit the target offense of murder, and perform one or more overt acts in furtherance of the planned murder—each has acted with a state of mind “functionally indistinguishable from the mental state of premeditating the target offense of murder.” {Swain, supra, 12 Cal.4th at pp. 608-609.) The mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder—hence all murder conspiracies are conspiracies to commit first degree murder, so to speak.

More accurately stated, conspiracy to commit murder is a unitary offense punishable in every instance in the same manner as is first degree murder under the provisions of Penal Code

section 182. {Swain, supra, 12 Cal.4th at p. 609.) In his separate concurring opinion in Swain, Justice Mosk elucidated the point further: “[Conspiracy to commit murder] 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. (Cf. People v.

Ruiz (1988) 44 Cal.3d 589, 614 [244 Cal.Rptr. 200, 749 P.2d 854] [concluding that murder by lying in wait is, by definition, a kind of ‘willful, deliberate, and premeditated killing’ within the meaning of Penal Code

section 189, and does not require as a factual matter a premeditated and deliberate intent to kill unlawfully or even a simple intent to kill unlawfully].)” {Swain, supra, 12 Cal.4th at p. 613, original italics (cone. opn. of Mosk, J.).) Fifteen years after Kynette was decided, the Legislature amended the punishment language of Penal Code

section 182 to provide as follows: “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.” (Pen. Code, § 182, as amended by Stats. 1955, ch. 660, § 1, p. 1155.) The punishment language of Penal Code

section 182 remains substantially the same today. Twenty years after the Legislature amended the punishment provisions of Penal Code

section 182, we decided Horn, supra, 12 Cal.3d 290, and in dicta addressed the effect of those amendments on the punishment for conspiracy to commit murder.

In Horn we concluded such conspiracies could take the form of conspiracy to commit first degree murder, conspiracy to commit second degree murder, and conspiracy to commit manslaughter. {Id. at pp. 298-300 & fn. 5.) In so concluding, we gave three reasons why, contrary to our earlier holding in Kynette, all conspiracies to commit murder were not necessarily conspiracy to commit murder in the first degree: (1) the then existing availability of the diminished capacity defense; (2) the then existing requirement that in order to establish the requisite element of premeditation for first degree murder, defendant be shown to have “ ‘maturely and meaningfully reflect[ed] [on] the gravity of his contemplated act’ ” (id. at p. 298, citing People v.

Wolff (1964) 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959], italics omitted); and (3) the above noted post-Kynette amendments to Penal Code

section 182 altering the punishment for murder conspiracies. (Horn, supra, 12 Cal.3d at pp. 298-300, & fn. 5.) Horn expressly disapproved Kynette to the extent it was inconsistent. (Horn, supra, 12 Cal.3d at p. 301, fn. 8.) As Swain explains, two of the three reasons given in Horn in support of the conclusion that conspiracies to commit murder are divisible into degrees and subject to differing punishments are no longer the law. “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 . . . .’ (People v. Miller (1992) 6 Cal.App.4th 873, 878, fn. 2 [8 Cal.Rptr.2d 193].)” (Swain, supra, 12 Cal.4th at p. 608.) As a result of the Legislature’s abrogation of the “mature and meaningful reflection” requirement for establishing premediation, and its abolishment of the diminished capacity defense, there remains only the Horn court’s

interpretation of the provisions of Penal Code

section 182 as arguable support for its conclusion that conspiracy to commit murder is divisible into degrees, and that “conspiracy to commit second degree murder” is a viable offense. As next explained, such a strained

interpretation of the punishment provisions of Penal Code

section 182 leads to illogical results and cannot within reason serve as grounds for salvaging the holding of Horn. Much of the confusion engendered by Horn stems from its

interpretation of the provisions of Penal Code

section 182. Although those provisions, by their express terms, purport only to prescribe the proper punishment for conspiracy convictions, they were construed in Horn, supra, 12 Cal.3d at page 298, footnote 5, as creating or authorizing conviction of the offense of “conspiracy to commit second degree murder.” 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. ’ fl[] 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.” (Ibid., first italics added, second italics original.) As we observed in Swain, supra, 12 Cal.4th at pages 609-610, the point made in the Horn footnote can 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.” (Original italics.) Although it might be countered that the relevant punishment provisions 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,” the plain fact remains that Horn's

interpretation of Penal Code

section 182 was dictum because “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, 771 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.

Wozalo (1990) 51 Cal.3d 991, 1003-1004 [275 Cal.Rptr. 201, 800 P.2d 557].)” (Swain, supra, 12 Cal.4th at p. 610.) In People v. Bright (1996) 12 Cal.4th 652 [49 Cal.Rptr.2d 732, 909 P.2d 1354] (Bright), we had occasion to interpret a legislative amendment of a statutory punishment provision similar to the 1955 amendment of Penal Code

section 182 here in question. Bright construed a 1986 amendment to Penal Code

section 664—the statute governing the punishment for attempts—which prescribed greater punishment for attempted murders that were willful, deliberate and premeditated. The relevant punishment language of Penal Code

section 664, as amended in 1986, provided as follows: “If the offense so attempted is punishable by imprisonment in the state prison, the person guilty of such attempt is punishable by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense so attempted; provided, however, that if the crime attempted is willful, deliberate, and premeditated murder, as defined in

Section 189, the person guilty of that attempt shall be punishable by imprisonment in the state prison for life with the possibility of parole. . . .” (Stats. 1986, ch. 519, § 2, p. 1859.) Prior to the 1986 amendment, it was generally recognized that the crime of attempted murder was not divided into degrees. (Bright, supra, 12 Cal.4th at p. 665; see also People v. Miller (1992) 6 Cal.App.4th 873 [8 Cal.Rptr.2d 193].) Bright addressed the question of whether the 1986 amendment to Penal Code

section 664 specifically recognized the crime of attempted first degree murder, thus dividing attempted murder into degrees, or whether the amendment merely constituted a penalty provision. (Bright, supra, 12 Cal.4th at pp. 665-666.) In concluding the amendment spoke to punishment alone, we observed that had the Legislature intended to modify the generally recognized rule that attempted murder was not divisible into degrees, it would have explicitly done so. We further observed we were “unaware of any California penal provision creating degrees of an offense by implication.” {Id. at p. 668.) Moreover, reading the punishment provisions of Penal Code

section 182 as establishing the substantive offense of conspiracy to commit second degree express malice murder would lead to illogical results. One such anomaly has already been noted: The Horn court’s

interpretation of Penal Code

section 182 as requiring 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, italics omitted) is at odds with the general proposition, expressly embodied in the punishment language of 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. {Ante, at p. 1235; Swain, supra, 12 Cal.4th at pp. 609-610; see also Pen. Code, §§ 1157, 1192.) We therefore conclude all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder, and that all murder conspiracies are punishable in the same manner as murder in the first degree pursuant to the punishment provisions of Penal Code

section 182. The time has come to disapprove our early decision in Horn, supra, 12 Cal.3d 290, to the extent it is inconsistent with the views expressed herein. n. Our order granting review additionally asked the parties to address the related question of whether the trial court below erred in failing to instruct the jury on premeditation and deliberation with regard to the con- * spiracy count.

Given our conclusion that conspiracy to commit murder is a unitary offense punishable in every instance with the penalty prescribed for first degree murder, it follows logically that there was no occasion or requirement for the jury to determine the “degree” of the underlying target offense of murder, and thus no need for specific instruction on premeditation and deliberation respecting the conspiracy count.

Our conclusion in this case—that a jury’s finding of the dual specific intent required for conviction of conspiracy to murder necessarily establishes that the target offense of murder was premeditated and deliberated, and that the Legislature in Penal Code

section 182 has recognized as much by providing that punishment for all conspiracies to murder is that prescribed for first degree murder—does not itself furnish a basis for requiring that juries henceforth be instructed on the definition of premeditation and deliberation in all murder conspiracy cases.

Although the jury was properly not asked to determine the degree of the target murder (or, for that matter, whether the target offense was actually committed, since in many conspiracy cases, as here, the target offense will not have been committed or completed), and instructions on premeditation and deliberation were therefore not required, instructions defining the essential elements of murder were required because defendant was charged with conspiring with his deceased accomplice Corletto to commit the underlying criminal objective or target offense of murder simpliciter. “[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.” {Swain, supra, 12 Cal.4th at p. 602.) Instructions on the basic elements of murder were therefore necessary to guide the jury in its determination of whether defendant harbored the requisite dual specific intent for conviction of conspiracy to commit murder.

The necessary instructions were given in this case. The jury was instructed that murder is “the unlawful killing of a human being . . . with malice aforethought,” and malice aforethought was further specifically defined as intent to kill. These instructions were sufficient to define the elements of the target offense of murder simpliciter in connection With the charged conspiracy.

We note that these instructions were delivered to the jury in a rather circuitous fashion; the Court of Appeal’s opinion explains at some length how they were embodied in attempted murder instructions, which in turn were given in connection with the “provocative act” theory of murder (see In re Joe R. (1980) 27 Cal.3d 496, 507-508 [165 Cal.Rptr. 837, 612 P.2d 927]) by which the prosecution sought to convict defendant for accomplice Corletto’s murder (the jury deadlocked on that charge and a mistrial was declared).

The Court of Appeal correctly concluded that, “[w]hile a murder instruction directly tied to the conspiracy charge might have been helpful, we find that the definition of murder included in the attempted murder instruction was sufficient to communicate to the jury the necessity of a finding of specific intent to kill for a conspiracy to commit murder convict tion.

On a fair reading of the jury instructions, the murder component of the attempted murder instruction operated as a freestanding definition of murder.” Nor is this aspect of the Court of Appeal’s holding being challenged by petitioner on review in this court. Finally, in connection with its discussion of the murder instructions described above, the Court of Appeal below made the following observations with regard to the recent decision in People v. Miller (1996) 46 Cal.App.4th 412 [53 Cal.Rptr.2d 773] {Miller)-. “We observe that in People v.

Miller (1996) 46 Cal.App.4th 412 [53 Cal.Rptr.2d 773], a case with superficial similarities to this one, another appellate panel found the following instructional deficiencies to be reversible error in the context of ‘conspiracy to commit willful, deliberate and premeditated murder’: (1) omission of the ‘with the further specific intent to commit such offense’ language from CALJIC No. 6.10 [the basic conspiracy instruction]; and (2) failure to give either a free-standing murder or premeditation and deliberation instruction.

In Miller the conspiracy appears to have been charged as a ‘conspiracy to commit willful, deliberate and premeditated murder,’ (46 Cal.App.4th at p. 416) and the trial court appears to have ‘expressly limited’ certain instructions to certain charges. (Id. at p. 426.) That did not happen in the present case.” Given our conclusion that conspiracy to commit murder is a unitary crime punishable in the same manner as first degree murder in every instance, and that, because the jury is not required to determine the “degree” of the target offense of murder, instructions on premeditation and deliberation need not be given, any suggestion in .Miller, supra, 46 Cal.App.4th at page 426, footnote 6, that such instructions are required in every conspiracy to murder case is unfounded and hereby disapproved.

Conclusion The judgment of the Court of Appeal is affirmed. George, C. J., Mosk, J., Werdegar, J., Chin, J., and Brown, J., concurred. 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) and thus does not apply herein.

In a separate concurring opinion, Justice Mosk indicated he would have reached and decided the issue in Swain, and set forth an analysis, largely consistent with that we apply herein, concluding the crime of conspiracy to commit murder is a unitary crime that is not divided into degrees and is punishable in every instance with “the punishment for the crime of murder of the first degree . . . .” (Swain, supra, 12 Cal.4th at p. 619 (cone. opn. of Mosk, J.); see id. at pp. 611-620.) Justice Kennard, in a separate concurring opinion, likewise indicating she would have reached and decided the. issue in Swain, went on to set forth the reasons for her conclusion that “conspiracy to commit first degree murder and conspiracy to commit second degree murder are separate crimes distinguished by whether the intent to kill reflected in the conspirators’ agreement is deliberate and premeditated or not,” and that “under the Penal Code, each type of conspiracy to murder is subject to the punishment prescribed for the corresponding degree of murder.” (12 Cal.4th at p. 621 (cone. opn. of Kennard, J.); see id. at pp. 622-628.) Justice Kennard’s dissent in the present case largely reiterates the rationale of her dissent in Swain. (See dis. opn. of Kennard, J., post, at pp. 1242-1246, and passim.) With due respect, we believe Justice Kennard misconstrues our analysis when suggesting we are concluding “conspiracy to murder is a unitary crime requiring proof of only intent to kill, the mental state of second degree murder, but subject to the punishment for first degree murder.” (Dis. opn. of Kennard, J., post, at p. 1247.) We are not concluding conspiracy to commit murder “requires] only intent to kill”—we are instead merely recognizing that the mental state required for conviction of conspiracy to commit express malice murder necessarily equates with and establishes the mental state of deliberate and premeditated first degree murder.

As this court concluded over half a century ago in Kynette, supra, 15 Cal.2d 731, it is inconceivable that two persons can harbor the mental state required to conspire to commit express malice murder, and, we might add, additionally commit an overt act or acts in furtherance thereof as required for conviction of the crime of conspiracy, without being deemed to have willfully “premeditated and deliberated” the commission of that murder. As explained below, the Legislature patently recognized as much when it amended Penal Code

section 182 after Kynette was decided (Stats. 1955, ch. 660, § 1, p. 1155) to expressly require that all conspiracies to commit murder are punishable in the same manner as murder in the first degree.

Justice Kennard likewise misses the mark in suggesting we have “unconstitutionally removed” the requirement of proof of the requisite mental state or mental element of conspiracy to commit murder. (Dis. opn. of Kennard, J., post, at p. 1248.) When a jury finds the existence of a conspiracy to commit express malice murder it has thereby necessarily determined that the conspirators premeditated and deliberated the commission of said murder.

It is the Legislature, not this court, that in so recognizing has seen fit to provide that all such conspiracies shall be punished as conspiracies to commit murder in the first degree. (Pen. Code, § 182.) We were careful to point out in Swain that the entire discussion in Horn regarding the viability of the offense of conspiracy to commit second degree express malice murder was dictum. The objective of the charged conspiracy in Horn was murder by means of a firebomb, and because Penal Code

section 189, as it then read, provided that all murder perpetrated by means of a bomb was murder of the first degree, the charged conspiracy in Horn was conspiracy to commit first degree murder regardless of whether the facts established premeditation and deliberation. {Swain, supra, 12 Cal.4th at pp. 606-607; Horn, supra, 12 Cal.3d at pp. 299-300.) Notably, the definition of “premeditation” existing at the time Penal Code

section 182 was amended in 1955 was the same as that in effect when Kynette was decided. The requirement that the defendant “maturely and meaningfully reflect upon the gravity of his contemplated act” was not made the “true test” of premeditation until nine years after Penal Code

section 182 was amended to include the punishment language pertaining to murder conspiracies here concerned. (See People v. Wolff, supra, 61 Cal.2d at p. 821.) Hence, the Legislature could not have had that requirement in mind when it amended Penal Code

section 182, lending further support to our conclusion that the amendment of that statute in 1955 was not intended to authorize the substantive offense of conspiracy to commit second degree express malice murder, and was intended instead to codify our holding in Kynette by acknowledging that all murder conspiracies are the functional equivalent of conspiracy to commit premeditated first degree murder, and providing that all such conspiracies shall be punished in the same manner as the offense of murder in the first degree.

Justice Kennard took this position in her separate concurring opinion in Swain, supra, 12 Cal.4th at page 624 (cone. opn. of Kennard, J.), and incorporates it in her dissent in this case. (Dis. opn. of Kennard, J., post, at p. 1249.) In her separate concurring opinion in Swain, Justice Kennard offered the following responsive analysis: “There is ... a logical reason why, when the trier of fact fails to determine the degree of the crime, murder conspiracies are punished in the first degree while conspiracies to commit all other crimes are punished in the lesser degree.

Deliberate and premeditated murders are murders of the first degree.

As Kynette recognized, in the typical murder conspiracy the conspirators will act with premeditation and deliberation in forming an agreement to commit the crime. (Kynette, supra, 15 Cal.2d at p. 745.) Punishing murder conspiracies of unspecified degree as first degree murder conspiracies simply accords with the statistical reality that the vast majority of murder conspiracies will involve premeditation and deliberation.” {Swain, supra, 12 Cal.4th at p. 627 (cone. opn. of Kennard, J.).) Once again, Justice Kennard reiterates this point in her dissent in the instant case. (Dis. opn. of Kennard, J., post, at p. 1250.) Justice Kennard also acknowledged that even under her

interpretation of Penal Code

section 182, “as a factual matter the crime of conspiracy to commit second degree express-malice murder applies only to a narrow range of cases—those in which conspirators formed an agreement to kill but made that agreement without deliberation and premeditation.

It seems doubtful that any agreement persisting beyond more than the briefest duration would lack deliberation and premeditation, for inevitably the passage of time alone would cause the agreement to become deliberate and premeditated.” {Swain, supra, 12 Cal.4th at p. 625 (cone, opn. of Kennard, J.).) The same acknowledgement is retained in Justice Kennard’s dissent in this case, wherein she acknowledges that “most conspiracies” are of a “deliberate and premeditated nature (Dis. opn. of Kennard, J., post, at p. 1250.) The Miller court suggested certain language in our majority opinion in Swain “may be interpreted as meaning that the jury need not be informed of the requirement of the intention to kill nor given the definition of deliberate and premeditated . . . .” (46 Cal.App.4th at p. 426, fn. 6.) We said nothing in Swain to suggest that the instructional requirements for the basic elements of the target offense of murder simpliciter—i.e., that intent to kill is part and parcel of the specific intent required for conspiracy to commit murder—were being eliminated, nor anything to suggest instruction on premeditation and deliberation had been a requirement where the charge is conspiracy to commit murder simpliciter, much less one that was being abrogated.