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People v. Swain

Citation. 12 Cal. 4th 593, 909 P.2d 994, 49 Cal. Rptr. 2d 390, 1996 Cal. 198.
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Brief Fact Summary.

The Defendants, Jamal Swain (Swain) and David Chatman (Defendants), were each convicted of conspiracy to commit murder and other crimes, stemming from the drive-by shooting death of a 15-year-old boy. The jury found that, under the conspiracy count, the target offense of the conspiracy was murder in the second degree. The Defendants appeal those conspiracy convictions.

Synopsis of Rule of Law.

A conviction of conspiracy to commit murder requires a finding of intent to kill and cannot be based upon a theory of implied malice.


On January 13, 1991, a brown van passed through the Hunter’s Point neighborhood in San Francisco, and slowed down where the eventual victim, a Samoan, Hagbam Saileele, was listening to music with his friends on the street. A young black male was driving the van when several shots were fired from the front of the vehicle. As a result, Chatman and another man fired shots from the rear of the van. The victim later died in surgery after being shot twice from behind. Later, Swain boasted to jail mates about his good aim and the fact that he had shot a Samoan kid while he was in a van. Swain later testified that he had been in the van earlier on the day of the shooting, but that he left because the smell of marijuana bothered him. Chatman admitted he had been in the van at the time of the shooting, but insisted that the original plan was to steal a car in retaliation for a previous theft. Chatman testified that he only began shooting erratically when he believed that someone outside
the van was shooting at him.


Where 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?


In light of the jury instruction given and general verdicts returned, the court cannot determine beyond a reasonable doubt whether the jury found that the Defendants conspired with an intent to kill. As a result, the Defendants’ conspiracy convictions must be overturned.


Conspiracy is a specific intent crime that requires intent to agree or conspire as well as a further intent to commit the target crime. In the case before the court, the alleged target offense was second degree murder, based upon a theory of implied malice. However, in this case, conspiracy to commit such an offense is impossible due to the time when culpability is assessed for conspiracy and second degree implied malice murder. For conspiracy, culpability is fixed through hindsight, at the time of the agreement. As a result, because the type of murder alleged would not be completed until the killing actually occurred, the convictions of both Swain and Chatman on the conspiracy conviction cannot stand.

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