Filed 11/9/21 P. v. Rivera CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B306136
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA143615)
v.
JOSE DE JESUS RIVERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Sean D. Coen, Judge. Affirmed.
Michelle T. LiVecchi-Raufi, under appointment by the
Court of Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Noah P. Hill and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Jose Rivera of multiple counts of
conspiracy to commit assault, extortion, and murder, as well as
assault, based on his role as a facilitator for the Mexican Mafia.
On appeal, he argues that there was insufficient evidence to
support his conviction on one count of conspiracy to commit
assault. We affirm.
PROCEDURAL HISTORY
An amended information1 filed on August 14, 2019 charged
appellant with the following counts: conspiracy to commit assault
likely to cause great bodily injury (Pen. Code, § 182, subd. (a)(1);
count one),2 conspiracy to commit extortion (§ 182, subd. (a)(1);
count two), conspiracy to commit murder (§ 182, subd. (a)(1);
count three), attempted murder (§§ 664, 187, subd. (a); count
four), conspiracy to commit assault likely to cause great bodily
injury (§ 182, subd. (a)(1); count six), assault (§ 245, subd. (a)(4);
count seven), and conspiracy to commit murder (§ 182, subd.
1 The original information filed on December 29, 2017
charged appellant and several other defendants with three counts
of conspiracy and one count of attempted murder, as well as a
fifth count charged against another defendant. The relevant
amended information naming only appellant was filed after the
court granted the People’s motion to consolidate this case with
two other cases charging appellant with three additional counts.
Count five of the original information was omitted. The three
added counts were charged and tried as counts five, six, and
seven. However, the court subsequently issued new minute
orders and amended abstracts of judgement omitting count five
and correcting the counts to six, seven, and eight, as identified
here.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
2
(a)(1); count eight). As relevant here, the information alleged
that appellant committed counts one and two on or about July 11,
2016 and counts three and four in November 2016, all against
victim Enrique Cienfuegos. The information further alleged that
appellant committed all seven counts for the benefit of, at the
direction of, and in association with a criminal street gang (§
186.22, subd. (b)(1)(B)).
On September 5, 2019, the jury found appellant guilty as
charged on counts one, two, and six through eight, and found the
gang enhancement allegations true. The jury deadlocked on
counts three and four; thus, the court declared a mistrial as to
those counts and the People subsequently dismissed them.
The court sentenced appellant to a total of 33 years to life
in state prison, consisting of three years on count one, plus three
years for the gang enhancement, a consecutive term of one year
on count six, plus one year for the gang enhancement, and a
consecutive term of 25 years to life on count eight. The court
imposed and stayed six-year terms on counts two and seven
pursuant to section 654.
Appellant timely appealed.
FACTUAL BACKGROUND
I. Prosecution Evidence
On appeal, appellant challenges only his conviction on
count one, the conspiracy to commit assault against Cienfuegos.
We therefore relate only the evidence adduced at trial relevant to
that challenge.
A. Background
Special Sergeant Joseph Talamantez of the Federal Bureau
of Investigation (FBI) testified about a multi-agency task force,
including the FBI and the Los Angeles County Sheriff’s
3
Department (LACSD), that worked to investigate the gang
activities of the Mexican Mafia within the Los Angeles County
jail system. Talamantez explained that the Mexican Mafia dates
back to the 1950s in California. The organization is a “gang of
gangs” whose leaders are made up of the senior leadership of a
number of Hispanic street gangs in Southern California. The
Mexican Mafia controls Hispanic inmates within the county jail
system, making money by “taxing” inmates in various ways, as
well as imposing discipline for rule violations through extorted
fines and physical violence.
There are currently about 140 “members” of the Mexican
Mafia at the top of the organization. To insulate themselves from
the daily operations of the organization and attendant law
enforcement investigations, Mafia members use “facilitators,”
who coordinate and communicate with all levels of the
organization. An out-of-custody facilitator is an individual
outside the jail system who can relay communications between
outside members and inmates working for the Mexican Mafia.
Inside jails, the Mafia uses “shot callers” as in-custody facilitators
and supervisors of Mafia activities; a shot caller may control a
building, dormitory, or other specific area of a jail, and manages
the soldiers and other Mafia operatives in that area.
B. Appellant’s arrest and interviews
After about six months of investigation, appellant was
identified by authorities as an out-of-custody facilitator and an
associate of the Mexican Mafia. He was arrested on June 29,
2017. On July 4, 2017, appellant participated in two interviews
with LACSD Deputy Kevin Self and Lieutenant Kevin Lloyd.
The first interview focused on information specific to this case.
The second interview was a “debrief” covering general
4
background information on the Mexican Mafia. Recordings of
both interviews were played at trial.
Appellant told his interviewers that he was initially
approached by Mexican Mafia members about 10 years ago, and
had been working for the Mexican Mafia in the jail system for
about two years. He admitted that as of July 2016, he was
working for a Mexican Mafia member identified as “MM2,” doing
drug sales, collecting money, and “structur[ing] all his business.”
After MM2 was killed in October 2016 (unrelated to this case),
appellant began working for another Mexican Mafia member
identified as “MM3,” but also assisted other Mexican Mafia
members who reached out to him. Appellant reported that he
was the “number two guy” for MM3.
C. Evidence related to count 1 regarding victim
Cienfuegos
LACSD Deputy Corey Mattice testified regarding the
Inmate Telephone Monitoring System (ITMS), which records all
inmate jail calls made from within Los Angeles County jail
facilities. An inmate is able to make an outgoing call from a
payphone in the jail, using his or her booking number and a PIN
code. One of the parties must pay for the call and both must
consent to the call being recorded. The prosecution presented
evidence of multiple ITMS calls regarding the Mexican Mafia’s
orders to assault Cienfuegos.
1. July 11, 2016 call
In July 2016, Mattice reviewed an inmate phone call made
on July 11, 2016. The call discussed an intended assault on an
inmate referred to as “Chunky,” later determined to be
Cienfuegos. Mattice notified Operation Safe Jails (OSJ), a
specialized unit handling in-custody attacks. Cienfuegos was
5
transferred into protective custody.
The prosecution played the ITMS recording of the July 11,
2016 phone call at trial. The call involved appellant, MM2, and
inmate Daniel Ramos, also known as “Banger,” a dorm shot caller
for the Mexican Mafia.
Ramos initiated the call, appellant answered, and Ramos
then established his identity:
“[Ramos]: Hey what’s up my boy.
“[Appellant]: Hey who’s this?
“[Ramos]: This ASAP. . . . [¶] [T]his Banger from Rancho.
“[Appellant]: Who?
“[Ramos]: Banger.
“[Appellant]: Danger?
“[Ramos]: Yeah B.A.N.G.E.R, like gangbanger.
“[Appellant]: Oh Banger, oh Banger from Rancho. Look
um hey is-is-is this is you from Rancho?
“[Ramos]: Yeah, yeah.”
Appellant then asked Ramos to “explain the situation of
what happened when you . . . tried to get at ‘G’ [“Grizzly,” another
inmate] about old boy next door.” Appellant then explained that
“old boy next door” was referring to Cienfuegos. Ramos confirmed
that appellant wanted him to explain Ramos’s earlier
conversation with Cienfuegos regarding “what we [Ramos and
appellant] talked about yesterday right?” Appellant said “Yeah . .
. give me a second. Pops [MM2] wants to hear.”
After appellant and MM2 discussed another matter briefly
in the background, MM2 asked appellant the name of the caller
and appellant told him it was “Banger.” MM2 then took the
phone from appellant and spoke to Ramos, asking “what’s up
with that vato Chunky [Cienfuegos]?” MM2 asked where Ramos
6
had seen Cienfuegos and Ramos explained that Cienfuegos was
“right here in the 800’s right now.” Ramos further explained that
he had asked Cienfuegos about a rumor going around that
Cienfuegos “was no good,” but Cienfuegos denied any problem.3
Ramos reported that he then talked to “G” about Cienfuegos, and
“G” explained that Cienfuegos was “just not in good eyesight with
. . . the loved one [a Mexican Mafia member] . . . he just wants
him to get a 39[4] by some . . . solid homies.” In response, MM2
stated: “[A]ll I want is someone to smack this motherfucker
upside his head for a couple of times just to let him know to keep
his mouth shut.” Ramos responded “yeah,” and MM2 said, “Yeah
well I’m giving you a verbal [order], I’m letting you know this
motherfucker needs to get smacked upside his head a couple of
times.” Ramos asked that “you just want him to get a 39 a couple
of times then?” MM2 confirmed: “Just whoop his ass that’s all. I
don’t care on the 39, 44, 53 I don’t care.” Ramos responded that
“it will be carried out.”
MM2 then handed the phone back to appellant, telling
Ramos that “if you need anything just-just holler at Junior
[appellant] and Junior will let me know, right?” After appellant
came back on the line, Ramos told him “don’t trip-on . . . that tip,
I-I got it you know what I mean consider it done?” Appellant told
Ramos, “you . . . heard it from . . . pops [MM2]. . . . [¶] It is what
it is you just got to give him something so you know he knows we
3 Deputy Self testified at trial that this meant Cienfuegos
was “in bad standing with the Mexican Mafia,” because he had
made statements regarding the Mexican Mafia that displeased
some members.
4 This refers to an assault on an individual by a group of
Mexican Mafia soldiers for 39 seconds.
7
don’t fuck around.” Appellant continued: “after that um go
ahead and let him [Cienfuegos] know but after that he’s gonna
get fined.” He then asked MM2,5 “how much . . . you need from . .
. Chunky?” MM2 responded, “I just want a[n] ass whooping for
him.” Appellant asked MM2, “You don’t want to fine him? You
wanna fine him?” MM2 stated they should tell Cienfuegos to pay
a $500 fine.
Appellant resumed talking to Ramos, stating that after the
assault, MM2 “wants 500 asap.” Ramos confirmed the $500 fine,
then noted to appellant, “On the side that he’s on there’s . . . a lot
of homie[s] over there that are um let[’]s call them politician . . .
so I know that they’re gonna be trying to uh call whoop-d-whoop
whoever they call and try to see what’s up with this.” 6 Appellant
responded:
“[Appellant]: Look my boy they can’t call anybody cause
you heard it from the source that’s it.
“[Ramos]: Right.
“[Appellant]: Anybody that interferes and they get that
shit.
“[Ramos]: Alright.
“[Appellant]: They question, they question it my boy you
know that they . . . get it done cause you know you heard it from
the source so they ain[’]t gotta go nowhere else.”
5 Appellant’s discussions with MM2 can be heard in the
background of the phone call, as the two men were in the same
location.
6 As Deputy Self explained it, this refers to Ramos’s concern
about “[p]eople that would go out and call other Mexican Mafia
members hoping to . . . eliminate this order.”
8
In the background, appellant explained to MM2 that
Ramos was “saying that there is a lot of people in that dorm that
they have a lot of pull so they might … try to call another tio
[Mafia member] and stop it. Appellant then came back to the
phone and told Ramos, “Alright he said . . . you know just do
what I told you my boy anybody questions they get it to[o] and
they get fined. . . . [¶] Just say you know what I heard it from . .
. the source and that’s it and you were on the phone with the
source and that’s it my boy.” Appellant then told Ramos, “if you
get that shit done right now then call me as soon as you[’re] done.
In his interview, appellant listened to a recording of the
July 11, 2016 phone call. He confirmed that MM2 wanted
Cienfuegos to be fined $500 and “beat up” for talking to law
enforcement. Appellant told investigators that he was not able to
personally order a fine, he had to get approval from a Mafia
member or he could “get whacked.”
2. November 2016 phone calls and assault of
Cienfuegos
After MM2’s death in October 2016, Cienfuegos was
returned to the general prison population. ITMS captured
several phone calls regarding Cienfuegos in November 2016,
which were played at trial.
On November 3, 2016, inmate Miguel Garcia, a building
shot caller, called Daniel Bustamante, also known as “Doughboy,”
appellant’s “right hand man.” In the call, Bustamante told
Garcia not to hang around with Cienfuegos. The next day,
November 4, 2016, Garcia called Bustamante again and
Bustamante handed the phone to appellant. Referring to
Cienfuegos, appellant told Garcia, “that fool needs to be
unplugged” and “[h]is batteries need to be removed.” Garica
9
asked for confirmation, and appellant responded that he had
“already called” and received confirmation from a Mexican Mafia
member, “so when that happens, just call me and I’ll call and tell
them it’s finished.” Garcia told appellant that “it’s gonna get
done.”
In his July 2017 interview, appellant explained that
“unplugged” and “batteries need to be removed” meant badly
beating or stabbing Cienfuegos, not killing him. 7 Appellant
stated that he relayed this second order because Cienfuegos had
denied and “contested” the earlier order to beat and fine him.
On November 8, 2016, Garcia and three other inmates
attacked Cienfuegos in jail. Cienfuegos was stabbed multiple
times. The prosecution played video of the attack at trial. The
same day, ITMS recorded a call from inmate Edgardo Moreno (a
Mafia “soldier”) to Bustamante, during which Moreno reported
that “everything was good.” In his interview, appellant agreed
that Moreno was “confirming the order that it was completed.”
He explained that he needed confirmation that it was done, or
Mafia members would keep trying to send people to carry out the
order.
D. Remaining counts
In support of counts six and seven, alleging a conspiracy to
assault and the assault of another inmate, Leonel Castillo, the
prosecution presented an October 2, 2016 phone call. During
that call, appellant told an inmate shot caller that Castillo “needs
7 The prosecution argued that these statements were an
order to kill Cienfuegos, in support of counts three and four for
conspiracy to commit murder and attempted murder. The jury
failed to reach a verdict on those counts.
10
his birthday hug all the way to the bars.” This meant that
Castillo was to be severely assaulted. Castillo was attacked on
October 3, 2016.
Count eight alleged a conspiracy to murder inmate Eddie
Nunez. In support of this count, the prosecution presented
evidence that during several phone calls in November 2016,
appellant ordered an inmate shot caller to have Nunez killed.
II. Defense Evidence
Appellant presented no affirmative evidence.
DISCUSSION
Appellant contends there was insufficient evidence to
support his conviction on count one for conspiracy to assault
Cienfuegos. We disagree.
I. Legal Standards
We review claims challenging the sufficiency of the
evidence to uphold a judgment under the substantial evidence
standard. Under that standard, we review “the entire record in
the light most favorable to the prosecution to determine whether
it contains evidence that is reasonable, credible, and of solid
value, from which a rational trier of fact could find [the elements
of the crime] beyond a reasonable doubt.” (People v. Kipp (2001)
26 Cal.4th 1100, 1128; see also People v. Dalton (2019) 7 Cal.5th
166, 243.) “In so doing, a reviewing court “presumes in support of
the judgment the existence of every fact the trier could
reasonably deduce from the evidence.”” (People v. Dalton, supra,
7 Cal.5th at p. 244, quoting People v. Kraft (2000) 23 Cal.4th 978,
1053.) “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a
11
contrary finding does not warrant a reversal of the judgment.”
(People v. Bean (1988) 46 Cal.3d 919, 933, quoting People v.
Hillery (1965) 62 Cal.2d 692, 702.)
Section 182 prohibits a conspiracy by two or more people to
“commit any crime.” (§ 182, subd. (a)(1).) The offense of
conspiracy requires proof that the defendant and another person
(1) “had the specific intent to agree or conspire to commit an
offense”; (2) had “the specific intent to commit the elements of
that offense”; and (3) one or more of the parties to the conspiracy
committed “an overt act” in furtherance of the conspiracy.
(People v. Johnson (2013) 57 Cal.4th 250, 257 (Johnson), quoting
People v. Morante (1999) 20 Cal.4th 403, 416; see § 184; see also
People v. Homick (2012) 55 Cal.4th 816, 870 (Homick).) The overt
act need not be a criminal offense, nor must it be committed by
the defendant. (People v. Morante, supra, 20 Cal.4th at p. 417.)
“The crime of conspiracy punishes the agreement itself and
‘does not require the commission of the substantive offense that
is the object of the conspiracy.’” (Johnson, supra, 57 Cal.4th at p.
258, quoting People v. Swain (1996) 12 Cal.4th 593, 599.)
“‘Evidence is sufficient to prove a conspiracy to commit a crime “if
it supports an inference that the parties positively or tacitly came
to a mutual understanding to commit a crime. [Citation.] The
existence of a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators
before and during the alleged conspiracy.”’” (People v. Maciel
(2013) 57 Cal.4th 482, 515–516; Homick, supra, 55 Cal.4th at p.
870 [the element of agreeing to commit a crime “must often be
proved circumstantially”].)
Although mere association does not prove a criminal
conspiracy (People v. Manson (1976) 61 Cal.App.3d 102, 126),
12
“common gang membership may be part of circumstantial
evidence supporting the inference of a conspiracy. [Citation.]
The circumstances from which a conspiratorial agreement may be
inferred include ‘the conduct of defendants in mutually carrying
out a common illegal purpose, the nature of the act done, the
relationship of the parties [and] the interests of the alleged
conspirators. . . .’” (People v. Superior Court (Quinteros) (1993) 13
Cal.App.4th 12, 20–21.)
II. Analysis
A. Agreement and specific intent to commit assault
Appellant argues there was insufficient evidence at trial to
prove that he entered into an agreement to assault Cienfuegos or
that he formed the intent to commit that assault. We are not
persuaded.
The prosecution’s central evidence in support of count one
at trial was the July 11, 2016 phone call between appellant,
Ramos, and MM2. Appellant contends that he participated in
that conversation only at the beginning and the end, but the
intermediate portion of the call discussing the assault was only
between Ramos and MM2 and “did not involve appellant.” By
attempting to compartmentalize his involvement, appellant
ignores the fluid nature of the phone call and the evidence of his
role in it.
Appellant admitted his role as a facilitator for the Mexican
Mafia included communicating messages between members and
Mafia-affiliated inmates. Consistent with this role, he received
the phone call on July 11, 2016 from Ramos, who identified
himself with his gang moniker.8
8 Appellant’s contention that Ramos was “an unknown
13
Appellant referred to prior conversations Ramos had with
appellant and another inmate, Grizzly, regarding a rumor that
Cienfuegos had spoken to law enforcement and was not in good
standing with the Mafia as a result. Appellant asked Ramos to
recount his conversation with Cienfuegos on this topic to MM2,
and handed the phone to the Mafia member. From this evidence,
the jury could reasonably infer that appellant had already
discussed the issue of Cienfuegos’s standing with both Ramos and
MM2, appellant knew Cienfuegos was currently located near
Ramos in jail, and he understood and agreed that Cienfuego’s
behavior warranted punishment.
After Ramos told MM2 that Cienfuegos was located “right
here” in the jail, MM2 gave Ramos the “verbal” that he wanted
“someone to smack this motherfucker upside his head for a couple
of times just to let him know to keep his mouth shut.” MM2
directed Ramos to call appellant “if you need anything.”
Appellant then came back to the phone and Ramos confirmed to
him that he should “consider it done.” Appellant confirmed the
assault order from MM2, telling Ramos that he should “give
[Cienfuegos] something so . . . he knows we don’t fuck around”
and that after the assault, Ramos should let Cienfuegos know
“that he’s gonna get fined.” After conferring with MM2 over the
amount, appellant confirmed to Ramos that after the assault,
Cienfuegos would have to pay a $500 fine. When Ramos
caller to him” is not supported by the record. Appellant told
investigators that he had never met Ramos, but he did not say he
did not know him. Moreover, from appellant’s statements at the
start of the July 11, 2016 call, the jury could infer that appellant
was familiar with Ramos and had talked to him the previous day.
14
expressed concern that other inmates might try to appeal to
another Mafia member to cancel the assault order, appellant
again confirmed to Ramos that he “heard it from the source” and
that anyone who interfered would “get it to[o] and they get fined.”
Appellant ended the call with Ramos by telling him to “get that
shit done right now then call me as soon as you[’re] done.”
Viewing the call as a whole, the jury reasonably could have
found that appellant was involved with issuing the order to
assault Cienfuegos, from his discussions with MM2 during the
call, his position as the point person for any follow up, and his
repeated confirmations to Ramos that the assault order was valid
and would serve its purpose as a warning to Cienfuegos. As such,
the jury could have found that appellant entered into an
agreement with MM2 and Ramos to assault Cienfuegos and
intended for the assault to be carried out.
Additional evidence supports this conclusion. Appellant
admitted in his July 2017 interview that he had been working for
the Mexican Mafia for two years, and that he was the “number
two guy.” After listening to the recording of the July 11, 2016
phone call, he confirmed that MM2 wanted Cienfuegos to be fined
$500 and “beat up” for talking to law enforcement. He also
personally issued a second order to assault Cienfuegos in
November 2016, resulting in the assault a few days later, and
confirmed to the authorities that he issued the second order
because Cienfuegos had contested the first one.
Appellant attempts to downplay his involvement by noting
that he was an “associate” of the Mafia, rather than a member or
a soldier, that he did not have the authority to make such an
assault order himself, and that there was no evidence he
committed any related crimes prior to this call. While this
15
evidence might support the alternate conclusion that he did not
harbor the requisite intent for a conspiracy charge, it does not
establish the insufficiency of the evidence in favor of the jury’s
verdict. (See People v. Earp (1999) 20 Cal.4th 826, 887–888,
quoting People v. Proctor (1992) 4 Cal.4th 499, 528-529 [“our
opinion that the circumstances also might reasonably be
reconciled with a contrary finding does not render the evidence
insubstantial”].)
Appellant also argues that the record at most supports a
“suspicion” that he agreed to the assault, and that his association
with the Mexican Mafia, without more, is not enough to establish
a conspiracy. His citation to People v. Hardeman (1966) 244
Cal.App.2d 1, 42 (Hardeman) does not assist his claim. In
Hardeman, the court found substantial evidence supported the
defendant’s conviction for conspiracy to commit arson. The court
noted that the “incendiary burning and the collection of insurance
may raise a suspicion of the owner’s complicity,” but that
evidence alone was insufficient to establish the requisite
agreement. (Ibid.) However, that evidence was sufficient when
taken together with other evidence, such as the defendant’s
subsequent statements and conduct. (Ibid.) The court also found
that while “mere association” cannot establish a conspiracy,
“[w]here there is some evidence of participation or interest in the
commission of the offense, it, when taken with evidence of
association, may support an inference of a conspiracy to commit
the offense.” (Id. at p. 41.) Here, appellant’s admitted
association with the Mexican Mafia, coupled with his
conversation with Ramos and MM2, was sufficient to establish
the conspiracy.
16
Thus, viewing the evidence in the light most favorable to
the prosecution, a jury reasonably could have concluded beyond a
reasonable doubt that appellant agreed with the order to assault
Cienfuegos and intended to have that assault committed.
B. Overt ac0074
Appellant also contends that none of the three overt acts
alleged in support of count one were proven beyond a reasonable
doubt and therefore cannot support his conspiracy conviction. We
disagree.
The amended information alleged three overt acts in
support of count one (and the same three in support of count two,
conspiracy to commit extortion): “1. On July 11, 2016, Daniel
Ramos, an associate of the Mexican Mafia calls Defendant Jose
Rivera, also an associate of the Mexican Mafia, and notifies him
that Victim Cienfuegos has entered the Los Angeles County Jail
System. [¶] 2. On July 11, 2016, during the same call, Daniel
Ramos and Defendant Jose Rivera discuss the fact that Victim
Cienfuegos is possibly cooperating with law enforcement by
discussing Mexican Mafia business with law enforcement. [¶] 3.
On July 11, 2016, during the same call, Defendant Jose Rivera
instructs Daniel Ramos to extort $500 from Victim Cienfuegos
and have him physically assaulted.”
The prosecution was required to prove at least one overt act
taken in pursuance of the assault. (See Johnson, supra, 57
Cal.4th at p. 259, citing § 184 [“[A]n agreement to commit a
crime, by itself, does not complete the crime of conspiracy. The
commission of an overt act in furtherance of the agreement is also
required.”]; People v. Alleyne (2000) 82 Cal.App.4th 1256, 1260
[“Although several overt acts may be alleged, the prosecution
need only prove one.”].) “‘[A]n overt act is an outward act done in
17
pursuance of the crime and in manifestation of an intent or
design, looking toward the accomplishment of the crime.’”
(People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8.) The overt act
“need not amount to a criminal attempt and it need not be
criminal in itself.” (Johnson, supra, 57 Cal.4th at p. 259.)
“‘Disagreement as to who the coconspirators were or who did an
overt act, or exactly what that act was, does not invalidate a
conspiracy conviction, as long as a unanimous jury is convinced
beyond a reasonable doubt that a conspirator did commit some
overt act in furtherance of the conspiracy.’ [Citation.]” (People v.
Jurado (2006) 38 Cal.4th 72, 120–121.)
Once again, appellant attempts to downplay his
participation in the July 11, 2016 phone call, arguing that his
only involvement was in “answering the phone and handing it
over” to MM2. He asserts that the conversation regarding the
assault took place only between Ramos and MM2. As a result, he
contends that the alleged overt acts were factually incorrect to
the extent they described conversations between appellant and
Ramos, and thus did not support his participation in the
conspiracy to assault Cienfuegos. As we discussed above, this
argument does not accurately reflect the July 11, 2016 call as a
whole. In particular, appellant’s statements toward the end of
the call confirmed the orders to both assault and fine Cienfuegos,
assured Ramos that he did not need to worry about interference
from other Mafia members, and instructed him that any
dissenters would also “get it too.” From this evidence, the jury
could have found that the prosecution proved beyond a
reasonable doubt that, as alleged in the third overt act, appellant
“instruct[ed] Daniel Ramos to extort $500 from Victim Cienfuegos
and have him physically assaulted.” There was also evidence
18
from the start of the call supporting the conclusion that appellant
and Ramos discussed that Cienfuegos was “not in good standing”
with the Mexican Mafia, based on the rumor that Cienfuegos was
discussing Mafia business with law enforcement, thereby
establishing the second overt act alleged. As such, appellant’s
argument that he simply handed the phone to MM2 and then
discussed only the fine order with Ramos is not supported by the
record.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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