A conspiracy is an agreement by two or more persons to commit a crime. The crime of murder is divided into first degree murder and second degree murder. When two or more persons form a conspiracy to commit a crime divided into degrees, conspiracy law generally *1242provides that conspiracy to commit that crime is also divided into degrees, and that the conspirators are liable for conspiracy to commit a given degree of the crime only if they possess the mental state and intend to'.commit the acts required by that degree of the crime. Conspiracy law also generally provides that the conspirators’ possible punishment is determined by the degree of the crime whose elements they have intended to commit.
This case poses the question of whether these general principles of conspiracy law hold true for murder conspiracies as well. The majority holds they do not, concluding that there is but a single crime of conspiracy to murder, requiring only the mental state of second degree murder (intent to kill) yet subject to the penalty for first degree murder (which requires as its mental state premeditation and deliberation in addition to intent to kill).
In People v. Swain (1996) 12 Cal.4th 593 [49 Cal.Rptr.2d 390, 909 P.2d 994] (hereafter Swain), I wrote a separate opinion explaining my conclusion that in Penal Code section 182 the Legislature has created separate crimes of conspiracy to commit first degree murder (requiring proof of premeditation and deliberation) and conspiracy to commit second degree murder (requiring only intent to kill), with separate punishments for each. Section 182 sets forth the general rule that conspiracies are divided into degrees with the punishment determined by the degree of the target crime (“[i]f the felony is one,” like murder, “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”). Section 182 also provides that if the trier of fact fails to determine the degree of a murder conspiracy, the punishment is that for first degree murder (“[i]f the degree is not so determined, the punishment ... in the case of conspiracy to commit murder . . . shall be that prescribed for murder in the first degree”).
In my view, the conclusion that conspiracy to murder is divided into degrees remains the correct one, and accordingly I dissent.
I
Defendant was the driver of a car involved in a gang drive-by shooting. His passenger shot at, but did not kill, members of a rival gang. Defendant was charged with conspiracy to commit murder. The jury was instructed only on the elements of second degree murder. It was never instructed on the additional elements of first degree murder. It was never instructed to determine the degree of murder that defendant conspired to commit. The jury convicted defendant, and he was sentenced to 25 years to life in prison, the *1243punishment prescribed for first degree murder. The Court of Appeal rejected defendant’s claim that in light of the jury instructions he could be convicted only of conspiracy to commit second degree murder and could receive only 15 years to life in prison, the punishment authorized for second degree murder.
In Swain, supra, 12 Cal.4th 593,1 gave this explanation of my conclusion that the Legislature has divided conspiracy to commit murder into degrees with separate punishments for each degree:
“Penal Code section 182 (hereafter section 182) makes it unlawful for ‘(a) . . . two or more persons [to] conspire: fl[] (1) [t]o commit any crime’ and establishes the punishment for conspiracies, including murder conspiracies. For crimes divided according to degree, section 182 provides for the following punishment: ‘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 the 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.’ I shall refer to this as the punishment language of section 182.
“The crime of murder is divided into degrees. At the time the murder at issue in this case occurred, Penal Code section 189 defined first degree murder as (1) ‘any . . . kind of willful, deliberate, and premeditated killing’ (including killings accomplished by any of a variety of statutorily designated methods, the use of which in effect establishes deliberation and premeditation as a matter of law) or (2) murders ‘committed in the perpetration of, or attempt to perpetrate,’ certain designated felonies (commonly referred to as felony murder). ‘All other kinds of murders are of the second degree.’ (Pen. Code, § 189.) First and second degree murder have different punishments. (Pen. Code, § 190.) Because murder is a crime ‘for which different punishments are prescribed for different degrees’ (§ 182), the punishment language of section 182 on its face divides murder conspiracies into degrees, just as it does other crimes for which different punishments are prescribed for different degrees.
“To understand the debate over whether the current version of section 182 divides conspiracy to murder into degrees, however, it is necessary to begin with People v. Kynette (1940) 15 Cal.2d 731 [104 P.2d 794] (hereafter Kynette), which was decided when a different version of section 182 was in effect. At that time, section 182 provided that a conspiracy was ‘punishable *1244in the same manner and to the same extent as in this code provided for the punishment of the commission of the said felony.’ (Former § 182, as amended by Stats. 1919, ch. 125, § 1, p. 170; Kynette, supra, 15 Cal.2d at p. 744.) The defendant in Kynette argued that the trial court improperly excluded jurors with reservations against the death penalty because, he contended, the death penalty (a possible penalty for first degree murder) was not a possible punishment for conspiracy to commit murder. {Id. at p. 744.) Thus, the issue was whether the penalty for first degree murder was a possible penalty for a conspiracy to commit murder.
“In Kynette, this court held that the death penalty was a possible punishment for conspiracy to commit murder. {Kynette, supra, 15 Cal.2d at p. 745.) It reasoned that all conspiracies to commit murder were necessarily conspiracies to commit first degree murder. {Ibid.)
“In 1955, 15 years after Kynette, supra, 15 Cal.2d 731, the Legislature changed the punishment language of 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.’ (§ 182, as amended by Stats. 1955, ch. 660, § 1, p. 1155.) The punishment language of section 182 remains substantially the same today.
“Almost 20 years after the Legislature altered section 182, this court addressed the effect of those changes on conspiracy to commit murder in People v. Horn [(1974)] 12 Cal.3d 290 [115 Cal.Rptr. 516, 524 P.2d 1300] (hereafter Horn). In that case, the court concluded that conspiracies to kill could take the form of conspiracies to commit first degree murder, conspiracies to commit second degree murder, and conspiracies to commit manslaughter. {Id. at pp. 298-300 & fn. 5.) In doing so, the court relied on three reasons: the existence of the diminished capacity defense; the then-existing requirement that for premeditation to exist the defendant must have ‘maturely and meaningfully reflected] [on] the gravity of his contemplated act’ {People v. Wolff {1964) 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959], italics omitted); and the post-Kynette changes to the punishment for murder conspiracies set forth in section 182. {Horn, supra, 12 Cal.3d at pp. 298-300 & fn. 5.) The court disapproved Kynette to the extent it was inconsistent. {Horn, supra', 12 Cal.3d at p. 301, fh. 8.)
“As the majority notes, the first two reasons set forth in the Horn decision {supra, 12 Cal.3d 290 [115 Cal.Rptr. 516, 524 P.2d 1300]) supporting the *1245division of murder conspiracies into degrees—the existence of the diminished capacity defense and the ‘mature and meaningful reflection requirement’—are no longer the law. (Maj. opn., ante, at p. 608.) There remains, however, the punishment language of section 182.
“The natural reading of the punishment language of section 182 makes conspiracies to murder punishable by degree, just as conspiracies to commit other crimes are punishable by degree. The first sentence of the punishment language of section 182 (‘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.’) requires the trier of fact to ascertain the degree of the crime that is the object of the conspiracy, and thereby impliedly makes the punishment for the conspiracy the punishment for that degree of the crime. The second sentence of the punishment language of section 182 (‘If the degree is not so determined, the punishment for conspiracy to commit the 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.’) states that when the degree is not determined, the punishment is to be for the lesser degree except in the case of murder, which is punished in the first degree. By its terms, the murder conspiracy exception just referred to is limited to cases in which the jury has not determined the degree; it is not an exception removing murder conspiracies entirely from classification and punishment by degree. Thus, Horn correctly concluded that, ‘[a]s 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.’ {Horn, supra, 12 Cal.Sd at p. 298, fn. 5.) Nor is there any evidence of a contrary legislative intent underlying the enactment of section 182.
“When this analysis of section 182 is coupled with our holding today that conspiracy to murder requires an unlawful intent to kill, the result is that a conspiracy to murder may be either a conspiracy to commit first degree murder or a conspiracy to commit second degree express-malice murder. The degree of the murder conspiracy depends on whether the conspirators’ agreement evidences a willful, deliberate, premeditated intent to kill of the type that distinguishes first degree murder or instead reflects only a bare intent to kill lacking in premeditation and deliberation.1 Reading section 182 as dividing conspiracy to murder into degrees, the punishment for each *1246degree of conspiracy to commit murder is that for the underlying degree of murder. If the trier of fact fails to determine the degree, the conspiracy is subject to the punishment for first degree murder.
“The reason for this structure of conspiracy to murder is readily apparent. If conspiracy to murder were a unitary crime that required only intent to kill, which is the mental state of second degree murder, but was punished as first degree murder, then conspiracies that involve agreements to commit only the elements of second degree murder (e.g., that lack premeditation and deliberation) would be punished more severely than the completed crime of second degree murder.
“There is an additional reason for adhering to Horn’s conclusion that conspiracy to commit murder is divided by degrees. Horn has been the law for 21 years. During that time, the Legislature has not amended section 182 to change the understanding of murder conspiracy set forth in Horn. Therefore, the prudent and preferable course is to retain Horn’s structure of conspiracy to murder as a crime divided into degrees with different punishments for each degree. If the Legislature wishes to alter this structure of conspiracy to murder, it can do so. That significant policy decision, however, should be left to the Legislature.
“Finally, I note that 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 pp. 622-625 (cone. opn. of Kennard, J.).)
Because the statutory framework governing conspiracy to commit murder has not changed since the time of Swain, supra, 12 Cal.4th 593, I adhere to my conclusion there that conspiracy to commit murder is divided into degrees.
*1247II
The majority rejects this analysis. Instead, it concludes that 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.2 In doing so, it implicitly rejects the well-settled understanding of conspiracy law that this court reaffirmed in Swain, supra, 12 Cal.4th 593.
Conspiracy, as Swain explained, is a dual-intent crime requiring both the intent to agree with one’s coconspirators to commit the target crime and the intent to commit all the elements of the target crime. (Swain, supra, 12 Cal.4th 593, 600.) In particular, to convict a defendant of conspiracy, the jury must find that during the conspiracy the defendant possessed the mental state required to commit the target crime. Swain itself illustrates this point. There, this court considered whether it was possible to conspire to commit an “implied malice” murder, in which the element of malice is implied by the intent to do an act dangerous to human life that results in a killing, in contrast to express malice murders, in which the element of malice is established by proof of intent to kill. (Id. at p. 601.) Swain rejected the possibility of conspiracy to commit implied-malice second degree murder because in cases of implied malice the element of malice never exists in advance of the completed crime; to recognize such a conspiracy would permit the conviction for conspiracy to murder of a defendant who lacked the necessary mental state of either express malice—the intent to kill—or implied malice. (Id. at p. 603.) The United States Supreme Court has likewise recognized that “to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute, the Government must prove at least the degree of criminal intent necessary for the substantive offense itself.” (United States v. Feola (1975) 420 U.S. 671, 686 [95 S.Ct. 1255, 1265, 43 L.Ed.2d 541].)
Another fundamental feature of conspiracy law is that the punishment for conspiracy to commit the target crime is the same as that for the target crime. (Pen. Code, § 182 [Conspirators who conspire to commit a felony *1248“shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. 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.”].) In combination with the principles of conspiracy law mentioned in the preceding paragraph, this means that before a conspirator may receive the punishment designated for a given degree of the target crime the jury must find the conspirator possessed the mental state required by that degree of the target crime.
Here, the majority dispenses with that requirement. Under the majority’s approach, every murder conspiracy will be punished as first degree murder even though the jury will have found only the mental state of second degree murder—intent to kill. The majority obscures this point by referring to the crime on which the jury was instructed as “the target offense of murder simpliciter.” (Maj. opn., ante, at p. 1239.) There is, of course, no such crime as murder simpliciter, only first degree murder and second degree murder. What the jury here was instructed on were the elements of second degree murder; what defendant has received as punishment is the punishment for first degree murder.
Thus, under the majority’s holding, conspiracy agreements to commit only the elements of second degree express-malice murder (e.g., agreements that lack premeditation and deliberation) and conspiracy agreements that reflect the premeditation and deliberation that distinguishes first degree murder would both be subject to the punishment established for first degree murder. As I have noted, this will produce the unjust and illogical result that second degree express-malice murder conspiracies will be punished more severely than the completed crime of second degree murder.
The majority seeks to justify its departure from the established rules of conspiracy law by asserting that every “conspiracy to commit murder is necessarily [a] conspiracy to commit premeditated . . . first degree murder.” (Maj. opn., ante, at p. 1238.) If the majority means that premeditation and deliberation are elements of conspiracy to commit murder but the jury is excused from finding those elements because their existence is presumed as a matter of law, then it has unconstitutionally removed those elements from the jury’s consideration. (See People v. Flood (1998) 18 Cal.4th 470, 548 [76 Cal.Rptr.2d 180, 957 P.2d 869] (dis. opn. of Kennard, J.); Sandstrom v. Montana (1979) 442 U.S. 510, 523-524 [99 S.Ct. 2450, 2458-2459, 61 L.Ed.2d' 39].) If the majority means instead that premeditation and deliberation, although elements of first degree murder, are not elements of conspiracy to commit murder, then its further holding that all murder conspirators should receive the punishment for first degree murder violates the *1249fundamental principle of Penal Code section 182 that a conspiracy defendant may receive the punishment specified for a given degree of the target crime only if the defendant had the mental state required by that degree of the crime.
Nor is the majority correct that as a factual matter it is impossible for two or more persons to conspire without deliberation and premeditation. By creating the separate crimes of (1) first degree murder for killings in which the killer acts not only with the intent to kill but with premeditation and deliberation, and (2) second degree murder for killings in which the killer acts with the intent to kill but without premeditation and deliberation, the Legislature has recognized that the intent to kill can exist without premeditation and deliberation. Contrary to the majority, there is no logical reason why a sudden intent to kill that is neither “ ‘ “considered beforehand” ’ ” (the majority’s definition of premeditation, maj. opn., ante, at p. 1232) nor “ ‘ “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” ’ ” (the majority’s definition of deliberation, ibid,.), cannot arise in two persons just as it can arise in one.
Conspiracies do not require formal expressions of agreement or advance planning. For example, with a shout of “let’s get him,” two friends who have been drinking all night in a bar can, without premeditation and deliberation, impulsively form and share the intent to kill when their sworn enemy walks in. Similarly, a sudden and unexpected encounter on disputed turf between groups from two different gangs can similarly lead to a spontaneous and unreflective agreement to kill. Juries are capable of distinguishing between first degree murder conspiracies requiring premeditation and deliberation and second degree murder conspiracies requiring only intent to kill.3 For this reason, the federal courts recognize murder conspiracies of varying degrees. (U.S. v. Croft (9th Cir. 1997) 124 F.3d 1109, 1122-1123 [holding that federal law recognizes conspiracy to commit second degree murder when conspirators act with intent to kill but without premeditation and deliberation]; United States v. Chagra (5th Cir. 1986) 807 F.2d 398, 400-402 [same].) Indeed, if the majority in this case truly believes that all murder conspiracies are premeditated and deliberate, it would have little reason to oppose instructing the jury that it must find premeditation and deliberation.
In addition, as I have explained above, the majority’s position is contrary to the ordinary meaning of Penal Code section 182. The majority seeks to *1250justify this departure by suggesting that to follow section 182’s plain language punishing murder conspiracies of undetermined degree the same as first degree murders would create an “illogical” “anomaly” (maj. opn., ante, at p. 1237) in the general rule that conspiracies of undetermined degree are subject only to the punishment prescribed for the lowest degree of the target crime. (See Pen. Code, § 182.) The difference in treatment under section 182 between murder conspiracies and all other conspiracies exists, of course, but the Legislature could hardly have made clearer its intent to create that distinction. In the same sentence of section 182, the Legislature both stated the general rule (“If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree,”) and stated that murder is an exception to that rule (“except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree”). We defeat the Legislature’s purpose when we rewrite its statutes to create consistencies it did not intend.
Moreover, there is a logical reason why the Legislature would provide that, 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 this court recognized in People v. Kynette, in the typical murder conspiracy the conspirators will act with premeditation and deliberation in forming an agreement to commit the crime. (People v. Kynette (1940) 15 Cal.2d 731, 745 [104 P.2d 794].) 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.
The deliberate and premeditated nature of most conspiracies, however, does not similarly increase the likelihood that conspiracies to commit crimes other than murder will be first degree conspiracies. Unlike murder, other crimes of degree do not become first degree crimes by being premeditated and deliberate; as to those crimes, the degree of the crime typically turns on the nature of the defendant’s acts rather than the defendant’s mental state. For example, the degree of a robbery or burglary can vary depending on the location where the crime occurs. (Pen. Code, §§ 212.5, 460.) Thus, the fact that conspiracies to commit crimes other than murder may also reflect a premeditated and deliberate intent to commit the underlying crime does not support a similar “presumption” that the crime, if committed, would be in the first degree.
Conclusion
In holding that, unlike conspiracy to commit any other target crime that is divided into degrees, conspiracy to murder is a unitary crime requiring only *1251the mental state of second degree murder, yet subject to the punishment for first degree murder, the majority acts contrary to the punishment language of Penal Code section 182, contrary to our 1974 decision in People v. Horn (1974) 12 Cal.3d 290 [115 Cal.Rptr. 516, 524 P.2d 1300], and contrary to the Legislature’s acceptance of Horn. Perhaps more troubling, by holding that conspiracy to murder is subject to the punishment for first degree murder without requiring proof of the mental state of first degree murder, the majority creates for the first time a conspiracy crime that does not require proof of the mental state of the target crime, and creates as well the possibility that a defendant will be punished more harshly for conspiring than for the completed crime.
I would continue to adhere to this court’s previous recognition that, under Penal Code section 182, the Legislature has made separate crimes of conspiracy to commit first degree murder (subject to the punishment prescribed for first degree murder) and conspiracy to commit second degree murder (subject to the punishment prescribed for second degree murder). Accordingly, I would reverse the judgment of the Court of Appeal.
Appellant’s petition for a rehearing was denied October 14, 1998. Kennard, L, was of the opinion that the petition should be granted.
For purposes of this discussion, I include within the term ‘willful, deliberate and premeditated’ the methods of killing designated in Penal Code section 189 that serve to elevate a killing to first degree murder. At the time of this case, those methods were killing ‘by means of a destructive device or explosive, knowing use of ammunition designed *1246primarily to penetrate metal or armor, poison, lying in wait, [or] torture.’ (Ibid.) Moreover, as a practical matter, a conspiracy to kill by one of these methods almost inevitably will involve deliberation and premeditation. Because it is not at issue in this case, I do not address whether conspiracy to commit first degree murder is a possible crime in cases in which the first degree murder theory would be felony murder, rather than deliberation and premeditation. Presumably, if it is possible for a defendant to be convicted of conspiracy to commit first degree murder on a felony-murder theory, under today’s holding the prosecution would have to prove intent to kill, even though it is not an element of first degree felony murder.”
The majority contends that it does no such thing but that it “merely recogniz[es] 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.” (Maj. opn., ante, at p. 1232, fn. 3.) Despite its protestations, however, the majority nevertheless refuses to require the jury to find the existence of the elemental facts of premeditation and deliberation, as a jury must find before convicting a defendant of first degree murder. Instead, it holds that intent to kill (the mental state of second degree murder) is the only mental state the jury need find to convict the defendant of conspiracy to murder, the punishment for which is that of first degree murder. Judicial presumption of premeditation and deliberation, however, is no substitute for jury fact-finding on those issues.
For example, in the record in a pending matter in this court, People v. Armigo (Super. Ct. San Diego County, 1996, No. SCN 020319), the evidence showed an unexpected encounter between members of two rival gangs in a convenience store that ended in the pursuit and stabbing of an associate of one gang by members of a rival gang. The jury convicted defendants of conspiracy to commit second degree murder and rejected a possible verdict of conspiracy to commit first degree murder.