Is there a crime of conspiracy to commit second degree express malice murder?

The issue of whether there exists a crime of conspiracy to commit second degree murder was framed, but not decided, in People v. Swain, supra, 12 Cal.4th 593, 49 Cal.Rptr.2d 390, 909 P.2d 994. The issue in Swain was whether a conspiracy to commit murder could exist when the required finding of malice aforethought was based not on express malice, i.e., the intent to kill, but on implied malice, i.e., a killing resulting from an intentional act dangerous to human life done with knowledge of the danger to, and with conscious disregard for, human life. (Id. at pp. 600-602, 49 Cal.Rptr.2d 390, 909 P.2d 994.) The court concluded no such specie of conspiracy exists.

A conspiracy exists when two or more persons agree to commit any crime and there is an overt act in furtherance of that agreement. ( 182.) A conspiracy requires two specific intents: first, the intent to agree; and, second, the intent to commit the target offense. (People v. Swain, supra, 12 Cal.4th at pp. 599-600, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

The court concluded the intent requirement of conspiracy and the nature of implied malice murder are in fundamental conflict. While a killing is the core of the corpus delicti of murder, implied malice murder requires no intent to kill. It would be illogical, therefore, to convict a party of conspiracy to commit implied malice murder since by definition there was never an agreement to kill. (People v. Swain, supra, 12 Cal.4th at pp. 602-603, 49 Cal.Rptr.2d 390, 909 P.2d 994.)

Having so decided, the court discussed at length but left unanswered whether there exists a crime of conspiracy to commit second degree express malice murder. (People v. Swain, supra, 12 Cal.4th at pp. 608-610, 49 Cal.Rptr.2d 390, 909 P.2d 994.)