P. v. Luna

Filed 3/16/07 P. v. Luna CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On January 20, 2006, an information was filed in the Superior Court of Kings County charging appellant Rafael Antonio Luna, and codefendants Victor Manuel Castaneda, Gonzalo Murguia, and Jose Naranjo, with count I, first degree murder of Marcos Villegas (Pen. Code,^[1] 187, subd. (a)), and count II, conspiracy to commit murder ( 182, subd. (a)(1), 187, subd. (a)). As to both counts, a special circumstance was alleged that the homicide was carried out to further the activities of a criminal street gang ( 190.2, subd. (a)(22)). As to both counts, it was further alleged the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(4)), and that appellant and the codefendants personally and intentionally discharged and used a firearm causing great bodily injury or death ( 12022.53, subds. (b), (c) & (e), 12022.5, subd. (a)(1)).

Appellant pleaded not guilty and denied the special allegations. Appellants case was subsequently severed from his codefendants and he was tried separately.

On March 27, 2006, appellants jury trial began. On March 29, 2006, appellant was found guilty of all counts and all special allegations were found true.

On April 21, 2006, the court sentenced appellant to life in prison without possibility of parole (LWOP) for count I, first degree murder, and stayed the terms imposed for the gun enhancements pursuant to section 654. The court also imposed a term of 15 years to life for the gang enhancement, which was subsumed within the LWOP term in count I. As to count II, conspiracy to commit murder, the court imposed another LWOP term and stayed that term pursuant to section 654. The court ordered appellant to serve these terms following completion of the sentence imposed in case No. 05CM8859B.^[2]

On April 21, 2006, appellant filed a timely notice of appeal.

FACTS

At 5:30 a.m. on August 28, 2004, Marcos Shadow Villegas was fatally shot outside his apartment complex in Avenal while waiting for a ride to work. The Kings County Sheriffs Department immediately suspected that Villegas, who was associated with Avenals Norteno gang, was shot as part of the on-going conflict with the local Sureno gangs. After a lengthy investigation, appellant and codefendants Victor Manuel Castaneda, Gonzalo Murguia, and Jose Naranjo, were charged with conspiracy and murder of Villegas. Appellant was tried separately and convicted of first degree murder and conspiracy to commit murder.

The Rivalry

There are three gangs in Avenal which are connected to the Surenos: the Tiny Loco Surenos (TLS), the Varrio Plaza Wild (VPW), and the Barrios Plaza Wild (BPW). The three Sureno gangs have a combined membership of 400 people, and claim the color blue and the number 13. There is one rival Norteno gang in Avenal, the Avenal Varrio Lomas (AVL).

Jose Little Man Valladares (Valladares) was the leader of the Surenos in Avenal. Valladares lived in a house on Laneva Street in Avenal. The Kings County Sheriffs Department was familiar with Valladaress house as a hub of Sureno gang activity and narcotics usage. The Surenos called Valladaress house 33, referring to nearby Highway 33. Appellant Rafael Forest Luna, Jose Jaime, Jose Ratone Naranjo, Victor Castaneda, and Jaime Little Whacky Felix were also associated with the Sureno gangs in Avenal, and frequent visitors to Valladaress house.

On the night of August 20, 2004, 14-year-old R.G. left a school dance and walked to his home on Laneva Street. R.G.s uncle was Valladares, but R.G. was not a member of the Surenos. There was a family gathering at the Laneva Street house that night. R.G. testified that as he walked through the alley behind his house, he saw someone watching him from behind a fence. A man stepped into the alley and confronted R.G. The man asked R.G. if he was a scrap, referring to the Surenos. R.G. said no but the man did not seem to believe him. R.G. testified the man was tall and dressed entirely in black, except for a red and black mask, and R.G. could not see the mans face. The man shot R.G. in the left arm and left side, and ran away.

At trial, R.G. testified that he believed the gunman was a Norteno who mistakenly thought he was a Sureno. R.G. testified he did not discuss the shooting with his uncle, his uncle never discussed retaliation with him, and his uncle only asked if his arm hurt.

The Homicide

Marcos Shadow Villegas (Villegas) and his girlfriend, Laura Resendez (Resendez), lived in the West View Apartments on South 7th Street in Avenal. Villegas, who was 23 years old, was affiliated with the Norteno gang. At some point in August 2004, Villegas was in a fight with Lynol Castro and two other men associated with the Surenos. The fight started after Villegas exchanged looks with the other men.

At 5:30 a.m. on August 28, 2004, Villegas followed his usual routine of getting up and going to work. He said goodbye to Resendez and grabbed his lunch bag. He left their apartment and walked to the street to wait for his usual ride. Within five to 10 minutes, Resendez heard Villegas yelling and banging at their apartment door. Villegas was standing at the doorway and holding his chest, and there was blood on his shirt. He was crying and in pain. Villegas repeatedly said, [T]hey shot me, and Im going to die! Im going to die! Somebody shot me! Resendez called 911. Villegas was lying on the ground, his face was turning color, and he had trouble breathing. Resendez tried to apply pressure to the wound with a towel.

Resendez testified that she knew Villegas had been waiting for his ride, assumed a drive-by shooting had occurred, and asked Villegas who shot him and whether they were in a car. Resendez testified Villegas moved his fingers in a walking motion, which she interpreted as meaning the shooter was walking. Resendez thought the shooting was in retaliation against Villegas for his recent fight with Castro.

Skyler Sonnier lived in the same apartment complex, and was awakened by two loud bangs, and screams of Ive been shot! and Help me, Laura, Im dying! Sonnier went outside and found Resendez trying to help Villegas, who was moaning, groaning, and holding his left side. Sonnier testified Resendez kept asking Villegas who shot him. Villegas repeatedly said those guys shot him and he was dying.

Q. Okay. But he clearly said those guys and those, you understand, that is not singular, that means two?

A. Plural.

Q. Something in plural, more than one person, correct?

A. Yes.

Sonnier asked Villegas who shot him, and Villegas replied, those guys. Villegas also said they drove up and shot me. Sonnier further testified:

... [W]hen [Resendez] was asking him, you know, who shot you? Who shot you? He said those guys and then he said the wordyou know, Im pretty sure it was the word little but Im not 100 percent sure.

Sonnier did not know what Villegas meant by the word little.

Villegas was treated at the scene by emergency personnel and transported by ambulance to University Medical Center in Fresno. He slipped into a coma before he reached the hospital and died in the emergency room. He had been shot in the left upper arm and in the left chest. One bullet entered the left chest, passed through his vital organs, caused massive internal bleeding, and lodged just under his skin in the right lower chest. This bullet was removed from his body, and it was consistent with being fired from either a .38-caliber or nine-millimeter weapon.

The investigators found Villegass lunch bag and blood on the South 5th Street side of the apartment complex, with a blood trail leading to Resendezs apartment. A nine-millimeter bullet was found about 50 feet from Villegass lunch bag. The bullet looked like it had been run over.

The Investigation

The investigators suspected the fatal shooting of Villegas, a Norteno, was gang-related and possibly performed by a Sureno, in retaliation for the on-going rivalry between the Avenal gangs. It was also noted that Villegas was shot on the left side, just as R.G. had been shot on the left side.

Sergeant David Jones interviewed R.G. after Villegass death, based on the possibility that Villegas was shot in retaliation for the assault on R.G. R.G. said that on the night he was shot, Valladares (his uncle) instructed him to tell the police that it was a [S]ureno gang member by the nickname of Stinky that had shot him. R.G. told the police that Stinky was the only person that goes around shooting people in the past. At trial, however, R.G. denied he made that statement, or that his uncle told him to name Stinky as a suspect. R.G. said that even if he knew his uncle shot Villegas, he would not tell the police.

Detective Mark Bevens interviewed appellant on August 29, 2004, and asked if he knew anything about the homicide of Villegas. Appellant was cooperative, said he was not involved in the shooting, and gave an alibi.

As the investigation continued, Jaime Little Whacky Felix (Felix), who was associated with the Surenos, cooperated with the deputies.^[3] Felix said he was at Valladaress house after R.G. was shot, and heard a conversation that the Surenos were going to retaliate against a Norteno. Felix offered to help in the retaliation. Felix agreed to go out and shoot Jose Stinky Marin, a Norteno. Valladares gave Felix a .38-caliber revolver to accomplish the act. Felix testified appellant was not present during this conversation.

Felix testified he left Valladaress house with the gun, and understood that he was supposed to shoot Jose Marin, but testified that he never intended to shoot Marin. Instead, he fired the gun into an open field behind his house. Felix returned to Valladaress house, gave the gun back to Valladares, and falsely told Valladares and the other Surenos that he shot at Marin, because he did not want to let them down. Jose Jaime left to find out what happened, and determined Felix did not shoot Marin. Felix testified they made fun of him for being a chicken and not shooting at Marin, but did not exclude him from being at Valladaress house, and Felix repeatedly returned there to purchase methamphetamine.

Felix testified he was at Valladaress house on another occasion, when Jose Naranjo and Gonzalo Big Gonzo Murguia (Murguia) told Valladares that Villegas left his home every morning around 5:30 a.m. Felix testified that on another occasion, Naranjo and Murguia arrived at Valladaress house with a gun, Murguia told Valladares they went to Villegass apartment complex in the early morning hours, they waited for Villegas to catch his ride, but they couldnt do it, they didnt do it. Valladares took the gun back from them. Murguia later told Felix that he did not have the heart to shoot Villegas, just like Felix could not bring himself to shoot anybody.

Felix agreed to further cooperate with the investigation and talk to appellant while wearing a body wire transmitter, so the investigators could record and listen to his conversation with appellant. Appellant and Felix were not in custody during this conversation, and they talked about the fatal shooting of Villegas. Appellant told Felix that he drove Valladares to the back gate of the West View apartment complex, dropped him off, and Valladares went to handle his business. Appellant said he did not shoot Villegas. Appellant said he heard two pow[s] and the victim screamed like a hina, meaning a bitch. Appellant said he left the area after he heard the shots and screams. Appellant said the screams bothered him and he had dreams about it. Appellant said Valladares thought appellant was going to do it, but he was wrong. It was his business, and appellant did not know anything about it. Appellant complained that Villegas would have lived if he had been taken to the hospital by helicopter. Appellant also told Felix that he could not have been present at the homicide because he was with Jesus Espinoza until 5:30 a.m.

Appellants Statement

On June 7, 2005, Sergeant Jones and Detective Bevens conducted another interview with appellant. Appellant was in custody on an unrelated matter. At the beginning of the interview, appellant denied any knowledge or involvement in the fatal shooting of Villegas. The officers then played the recording of appellants conversation with Felix, and appellant admitted his voice was on the recording. Appellant did not give any explanation for why he said certain things to Felix, and admitted he was involved in the shooting of Villegas. Appellant said he had been present at a discussion with a couple of other Sureno gang members about selecting a target for retaliation. Appellant said he had been driving around with Jose Pepe Jaime, and they saw Villegas standing outside his apartment complex. They told Valladares about the sighting, and Valladares said that Villegas would be the target.

Appellant said that on August 28, 2004, he was supposed to meet Murguia, go to a particular location, and shoot Villegas, but Murguia did not show up. Appellant said Valladares had the gun they were supposed to use, a .38-caliber chrome firearm. When Murgia did not appear, Valladares told appellant to drop him off instead. Sergeant Jones testified that appellant explained the protocol of such an event:

[Appellant] actually described how this type of thing should take place as in he described how a hit or a murder with one of your friends should take place. And in that description, he said you dont sit there and watch it so that there is onlyits only between the murder and the victim. You stay close by so that when its over, you could pick him up and then he went on to describe that that is how this happened. He dropped off Jose Valladares, waited down the street ..., heard the shots, heard the scream after both shots and then picked up Jose Valladares.

Appellant knew that Valladares crept up on the victim in the dark, because there were no lights in the area, and he used a chrome .38-caliber handgun to shoot Villegas in the arm and side. Appellant said he drove back to Valladaress house, about a mile away from the West View apartments, and Valladares got rid of the evidence. Appellant also said that Pepe and Victor Castaneda may have taken care of getting rid of Valladaress clothes.

Deputy Jeremy McGill testified for the prosecution as a gang expert. He explained that if a rival gang attacks the family of another gang member, they must retaliate to avoid the appearance of weakness. McGill testified the primary activities of the Surenos in Avenal were assaults with a deadly weapon, drive-by shootings, homicides, attempted homicides, and robberies. McGill testified to his opinion that if a Norteno shot the family member of a Sureno, and eight days later a Sureno killed a person affiliated with the Nortenos, that crime was committed for the benefit of the Surenos to create respect and fear.

Deputy McGill testified appellant was a member of the Sureno gang based on several factors: appellants 1998 booking classification at the juvenile center, that he was a Sureno; appellants letter of April 2001, intercepted by authorities, in which he discussed his decision to join the Surenos; a police report from December 2001 about appellants vandalism of a Nortenos car with Sureno gang writing; appellants presence with Jamie Felix during a traffic stop on August 29, 2004; and appellants presence in a vehicle involved in a drive-by shooting on June 6, 2005, when the vehicle contained gang photographs, a blue jersey, and a blue bandana. Appellant also told an officer that he had joined the Tiny Loco Surenos, and explained his various gang tattoos. On June 15, 2005, appellant was in custody in jail when officers discovered gang graffiti on his jail clothing, bedding, and within his cell, consistent with Sureno gang signs.

Appellant was convicted of first degree murder and conspiracy to commit murder. On appeal, appellant asserts his conviction for conspiracy must be reversed because there is insufficient evidence of the corpus delicti, such that his out-of-court statements should not have been admitted. Appellant separately argues the jury was not properly instructed on various elements of conspiracy. Appellant also asserts his consecutive indeterminate term for conspiracy must be reversed.

DISCUSSION

I.

THE CORPUS DELICTI OF CONSPIRACY

Appellant concedes there is sufficient evidence of the corpus delicti of murder, but asserts there is insufficient evidence of the corpus delicti of conspiracy to commit murder, independent of his extrajudicial statements, particularly that he was part of any conspiracy to kill Villegas.

The corpus delicti, or the body of elements of a crime, consists of the occurrence of injury, loss, or harm to someone, and a criminal agency that has caused the injury, loss or harm. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) The prosecution must establish the corpus delicti independent from the admissions of the defendant, thus assuring the accused does not admit to a crime which did not occur. (Id. at p. 1169.)^[4]

The identity of the perpetrator is not an element of the corpus delicti. (People v. Kraft (2000) 23 Cal.4th 978, 1057.) The corpus delicti is established when it is proved that a crime has been committed by someone. [Citations.] (People v. Manson (1977) 71 Cal.App.3d 1, 41.) The identity of the perpetrator of the crime is never an essential element of the corpus delicti. Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant. [Citations.] (Ibid.; see also People v. Cobb (1955) 45 Cal.2d 158, 161-162; People v. Armitage (1987) 194 Cal.App.3d 405, 422.)

The independent proof necessary to satisfy the corpus delicti rule may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence of every physical act constituting an element of an offense, so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. (Alvarez, supra, 27 Cal.4th at p. 1171.) [W]e have never interpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary. Instead, there need only be independent evidence establishing a slight or prima facie showing of some injury, loss or harm, and that a criminal agency was involved. (People v. Jones (1998) 17 Cal.4th 279, 303.) In every case, once the necessary quantum of independent evidence is present, the defendants extrajudicial statements may then be considered for their full value to strengthen the case on all issues. (Alvarez, supra, 27 Cal.4th at p. 1171.)

A conspiracy is an agreement by two or more persons to commit a crime, coupled with an overt act by one of the conspirators in furtherance thereof. ( 182, subd. (a)(1), 184; People v. Russo (2001) 25 Cal.4th 1124, 1131.) Proof of a conspiracy does not require evidence of a formal agreement or even one expressed in words. (People v. Longines (1995) 34 Cal.App.4th 621, 625-626; People v. Jordan (1937) 24 Cal.App.2d 39, 49.) It may be inferred from coordinated group conduct. (People v. Lipinski (1976) 65 Cal.App.3d 566, 575-576.) In proving a conspiracy ... it is not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citation.] (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)

The corpus delicti of conspiracy consists of evidence sufficient to infer an agreement to commit a crime and an overt act in furtherance of the agreement. (People v. Muniz (1993) 16 Cal.App.4th 1083, 1087-1088.) The identification of the defendant as a conspirator need not be proved as part of the corpus delicti. (Simmonds v. Superior Court (1966) 245 Cal.App.2d 704, 707-708; Ernst v. Municipal Court (1980) 104 Cal.App.3d 710, 718.) Proof of the corpus delicti does not require identity of the perpetrators. It is not necessary that it connect the defendant with the commission of the crime although it may do so. [Citation.] (People v. Cullen (1951) 37 Cal.2d 614, 624.) Once the corpus delicti is shown, the identification of the defendant as a conspirator and the scope of the conspiracy may be established by the defendants admissions. (Id. at p. 625.)

There was prima facie evidence to establish the corpus delicti of conspiracy to commit murder, that Valladares and members of the Sureno gang conspired to retaliate against a Norteno for the shooting of Valladaress nephew, and such retaliation was going to consist of shooting a Norteno. They met at Valladaress house, known as the hub of Sureno activity in Avenal, and discussed various options to retaliate against a Norteno. Valladares ordered gang members to shoot specific Nortenos, but these initial attempts at retaliation failed either because the participants lacked the nerve to shoot at another person, or another party failed to show up at the appointed hour to assist in a drive-by shooting. In the midst of these discussions, Valladares was advised that Villegas, who was associated with the Nortenos, regularly stood outside his apartment complex at 5:30 a.m. to wait for his ride to work, and Valladares decided that Villegas would be the target. After Villegas was fatally shot, he told his girlfriend and neighbor that he was shot and dying, and those guys shot him, and they drove up and shot me. He also indicated that someone walked up and fired the weapon. The entirety of the record thus contains prima facie evidence that a conspiracy of two or more people existed to shoot and kill Villegas in retribution for shooting Valladaress nephew.

Appellant complains that while Felix testified to numerous discussions at Valladaress house about retaliation, there were different conspiracies to shoot at different Nortenos. Appellant asserts he was not present during any of these conversations and there is no independent evidence that he was part of any conspiracy to retaliate against a Norteno in general, or Villegas in particular, or that the conspiracy was to commit murder.

As explained ante, however, the identification of appellant as a participant in the conspiracy was not an element of the corpus delicti. (People v.Kraft, supra, 23 Cal.4th at p. 1057; Simmonds v. Superior Court, supra, 245 Cal.App.2d at pp. 707-708; People v. Cullen, supra, 37 Cal.2d at p. 624.) Felixs testimony provides prima facie evidence of the corpus delicti of conspiracy to commit murder, that the Surenos who gathered at Valladaress house discussed retaliation targets and selected Villegas as a target of opportunity. Moreover, their discussions did not focus on simply shooting in the general direction of a particular individual, but that Valladares ordered the actual shooting of a target, and neither Felix nor Murguia could bring themselves to actually shoot a person. In addition, Villegass dying declarations established that two or more people performed the actual shooting, in that he repeatedly described his assailants in the plural.

Given the prima facie evidence of the corpus delicti, appellants statements were admissible to prove all the elements of the substantive offense, including his identity. Moreover, the jury was properly instructed pursuant to Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 359 (former CALJIC No. 2.72), as to the corpus delicti rule, that appellant could not be convicted based on his out-of-court statements unless other evidence established the corpus delicti.

II.

CONSPIRACY INSTRUCTIONS

Appellant contends the jury was not properly instructed on three aspects of conspiracy: (1) CALCRIM No. 417, as to the natural and probable consequences of the acts of a coconspirator; (2) CALCRIM No. 418, as to statements of coconspirators; and (3) CALCRIM No. 420, as to the defense of withdrawing from the conspiracy. Appellant also argues defense counsel was prejudicially ineffective for failing to request these instructions.

Appellants instructional arguments are partially based on the false premise that the prosecution failed to establish the corpus delicti of conspiracy, such that appellants out-of-court statements are not admissible. As explained ante, however, there was sufficient prima facie evidence of the corpus delicti such that appellants out-of-court statements were admissible to prove his guilt on the charged offense of conspiracy to commit murder.

A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416 (Morante); People v. Russo, supra, 25 Cal.4th at p. 1131.) [F]or [the] defendant to be guilty of the crime of conspiring to commit murder, he had to have been one of the participants who harbored the specific intent to kill. (People v. Petznick (2003) 114 Cal.App.4th 663, 680-681.) The facts of a conspiracy may be established through the use of circumstantial evidence, and inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. (People v. Herrera (2000) 83 Cal.App.4th 46, 64.)

Appellant concedes the jury properly received CALCRIM No. 563 (formerly CALJIC No. 8.69) in lieu of CALCRIM Nos. 415 and 416, as to the elements of conspiracy to commit murder. (See Morante, supra, 20 Cal.4th at p. 416.) Appellants first assignment of error, however, is that the court should have given CALCRIM No. 417 (formerly CALJIC No. 6.11) to explain that a coconspirator is criminally responsible for the acts of other members of the conspiracy which are the natural and probable consequences of the conspiracys common plan or design. Appellant is correct that under a conspiracy theory, each conspirator is jointly responsible for the acts of any of the others in carrying out the common purpose, including all natural and probable consequences therefrom. (People v. Flores (2005) 129 Cal.App.4th 174, 182.) A conspiracy requires an agreement between two or more individuals to commit a crime. The parties must entertain the specific intent to commit the target crime and one or more of them must commit an overt act in furtherance of the conspiratorial purpose. If all of those elements are met, a conspirator is liable for all crimes committed by a coconspirator which are within the natural and probable consequences of the original conspiratorial purpose. (Morante, supra, 20 Cal.4th at p. 416;  182, 184.) Each member of the conspiracy is liable as such for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design. (People v. Beaumaster (1971) 17 Cal.App.3d 996, 1003.)

Appellant asserts such an instruction would have focused the jury on the question of whether Valladaress act of killing Villegas was an independent act, not attributable to appellant, or the natural and probable consequence of the conspiracy. This argument, however, ignores appellants pretrial statements to the officers, that he planned and participated in the common unlawful design of shooting and killing a Norteno in retaliation, and that Valladaress act of fatally shooting Villegas was not an independent act but exactly what was planned in the conspiracy. Appellant stated he was present during the discussions about selecting a Norteno target for retaliation, that he suggested Villegas as a possible target and Valladares agreed, and that he was supposed to shoot Villegas but Murguia failed to appear. Appellant further stated that Valladares said he would take care of it when Murguia failed to show up. Appellant said he dropped off Valladares near Villegass apartment complex and drove away, explained the protocol for the shooting, revealed that he knew Valladares intended to shoot and kill Villegas, and said he dropped off Valladares and drove on because you dont sit there and watch it.

Appellant suggests he and the other Surenos, including Valladares, may have only intended the retaliatory act to be assault with a firearm, and that he could only be guilty of murder if the jury found the fatal shooting was the natural and probable consequence of the planned assault. The entirety of the record, however, reveals that Valladares and appellant intended to shoot and kill a Norteno, which is why neither Felix nor Murguia were capable of carrying out Valladaress instructions. Valladaress act of fatally shooting Villegas was not an independent act, but exactly what was intended and planned by appellant and the other Surenos. The courts failure to give CALCRIM No. 417 was not prejudicial under the circumstances. (See, e.g., People v. Prieto (2003) 30 Cal.4th 226, 252.)

Appellant next contends the jury should have received CALCRIM No. 418 (formerly CALJIC No. 6.24), which advises the jury not to consider the statements of alleged coconspirators unless there was independent evidence of the existence of a conspiracy to commit a crime, the statement was made during the conspiracy, and the statement was made in furtherance of the conspiracy.

Hearsay evidence is of course generally inadmissible. Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents independent evidence to establish prima facie the existence of ... [a] conspiracy. [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established: (1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy. [Citations.]

Only prima facie evidence of a conspiracy is required to permit the trial court to admit evidence under the coconspirators exception. This fact need not be established beyond a reasonable doubt, or even by a preponderance of the evidence.... The conspiracy may be shown by circumstantial evidence and the agreement may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute. [Citation.] (People v. Jeffery (1995) 37 Cal.App.4th 209, 215.)

Appellants argument is again based on the premise that there was insufficient evidence of the corpus delicti, appellants out-of-court statements should have been excluded, and there is no evidence of a conspiracy to support the admission of his statements or of any of the alleged coconspirators. Even if the trial court had a sua sponte duty to give this instruction, or defense counsel should have requested the instruction, appellant did not suffer any possible prejudice. As explained ante, there was sufficient prima facie evidence of the existence of a conspiracy, such that appellants out-of-court statements were admissible, and those statements further established that appellant was part of a conspiracy with Valladares and the other Surenos who met at 33 to retaliate against a Norteno by shooting and killing him, and the statements attributed to them were in furtherance of the conspiracy. Appellant admitted that he planned the retaliatory act against a Norteno, he suggested Villegas as the target, and he knew that he was dropping off Valladares to shoot and kill Villegas. The evidence overwhelmingly established that these hearsay statements were made during and in furtherance of a conspiracy, and the courts failure to instruct on the preliminary facts set forth in CALCRIM No. 418 is not prejudicial. (People v. Prieto, supra, 30 Cal.4th at p. 251; People v. Sully (1991) 53 Cal.3d 1195, 1231; People v. Williams (1997) 16 Cal.4th 635, 683.)

Finally, appellant asserts the court should have given CALCRIM No. 420 (formerly CALJIC No. 6.20) as to the defense of whether a party has withdrawn from a conspiracy. Appellant asserts this instruction should have been given because there was evidence he withdrew from the conspiracy. Conspiracy is the classic example of a continuing offense because by its nature it lasts until the final overt act is complete. [Citations.] (People v. Becker (2000) 83 Cal.App.4th 294, 297-298.) In order to withdraw from a conspiracy, one need only make an affirmative repudiation communicated to his coconspirators. (People v. Belmontes (1988) 45 Cal.3d 744, 793; In re Alcox (2006) 137 Cal.App.4th 657, 668.) It is not part of the Peoples prima facie case to negate the possibility of such a withdrawal. Once the defendants participation in the conspiracy is shown, it will be presumed to continue unless he is able to proveas a matter of defensethat he effectively withdrew from the conspiracy.... [] Under CALJIC No. 6.20 the burden is upon the defendant to go forward with evidence of his withdrawal from the conspiracy. His burden is one of productionnot persuasion beyond a reasonable doubt of his nonmembership in the conspiracy. (People v. Belmontes, supra, at p. 791.) A defendants failure to continue previously active participation in a conspiracy is not enough to constitute withdrawal; there must be an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the co-conspirator. [Citations.] (People v. Beaumaster, supra, 17 Cal.App.3d at p. 1003.)

The record refutes appellants argument that the jury should have been instructed on withdrawal as a defense. Valladares ordered Felix and Murguia to shoot certain Nortenos, but they admittedly lacked the nerve to actually shoot someone. In contrast, however, there is no evidence that appellant took any steps to withdraw from the conspiracy. Instead, appellant said he was going to go with Murguia to shoot Villegas, but Murguia failed to show up. At that point, Valladares said he would do it and appellant agreed to drive him to the apartment complex. Appellant said that Valladares thought he was going to shoot Villegas, but that it was Valladaress business instead. This statement, however, did not amount to appellants attempt to withdraw from the conspiracy, but only clarified that he intended to drive Valladares to Villegass apartment complex to accomplish the job, based upon his explanation that it was between Valladares and Villegas, but that he knew what Valladares was going to do. Contrary to appellants argument, there is no evidence that he made any type of affirmative repudiation to withdraw from the conspiracy.

III.

SENTENCING ISSUES

Appellant contends, and respondent concedes, that the court improperly imposed LWOP sentences for both counts I and II, the LWOP sentence for count II must be stricken, and this court should amend the abstract of judgment to reflect a sentence of 25 years to life for count II.

Appellant also contends, and respondent also concedes, the court improperly imposed a $10,000 parole revocation fine pursuant to section 1202.45, and that fine must be stricken because he received an LWOP term.

DISPOSITION

Appellants LWOP sentence in count II is reduced to 25 years to life. The parole revocation fine of $10,000 imposed pursuant to section 1202.45 is stricken. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and serve copies thereof as appropriate.

_____________________

HARRIS, Acting P.J.

WE CONCUR:

_____________________

DAWSON, J.

_____________________

KANE, J.

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^[1] All further statutory citations are to the Penal Code unless otherwise indicated.

^[2] Given the trial courts imposition of indeterminate terms, the instant case is not implicated by the United States Supreme Courts recent opinion in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].

^[3] Felix was granted immunity for his testimony. At trial, Felix testified that he was in custody, he had prior felony convictions for burglary, possession of drugs, and being under the influence of narcotics, and he did not receive any deal for his testimony.

^[4] Respondent asserts that Alvarez held that article I, section 28, subdivision (d) of the California Constitution, removed any basis under the corpus delicti rule for excluding a defendants statements from the trial, such that appellants statements are admissible in this case. Alvarez, however, explained that Proposition 8 did abrogate any corpus delicti basis for excluding the defendants extrajudicial statements from evidence. On the other hand, in our view, section 28(d) did not abrogate the corpus delicti rule insofar as it provides that every conviction must be supported by some proof of the corpus delicti aside from or in addition to such statements, and that the jury must be so instructed. (Alvarez, supra, 27 Cal.4th at p. 1165, italics in original.) Alvarez also clarified that a claim based on the insufficiency of the evidence of the corpus delicti may be raised on appeal absent an objection in the trial court. (Alvarez, supra, 27 Cal.4th at p. 1172, fn. 8.)