People v. Cortez

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…