Filed 8/23/16 P. v. Castro CA1/4
                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138968
v.
JACOB CASTRO,                                                        (Alameda County
                                                                     Super. Ct. No. C168413A)
         Defendant and Appellant.


         A jury convicted defendant Jacob Castro of conspiracy to commit murder, and
found true an allegation that he committed the offense for the benefit of, at the direction
of, or in association with a criminal street gang. The trial court sentenced Castro to 25
years to life in prison. On appeal, Castro argues (1) there was insufficient evidence to
support the conspiracy conviction or the gang enhancement, and (2) the court
prejudicially erred by failing to instruct the jury sua sponte on withdrawal from
conspiracy, lesser included offenses, and accomplice testimony. We affirm.
                                               I. BACKGROUND
A.       Evidence at Trial
         1.        The Prosecution’s Case
                   a.       The Viper Lounge Homicide
         On August 30, 2008, a fistfight broke out between two groups of people at the
Viper Lounge in Hayward. Two Hispanic males fired gunshots, killing one person.
After reviewing surveillance videotape of the incident and interviewing witnesses, police
arrested several people who they believed had been involved in the fight, including


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Adelino Lopes. During a police interview after his arrest, Lopes identified the two
shooters on the video as Rene Rebuelta and Ignacio Contreras. Rebuelta and Contreras
were arrested and charged with murder. During discovery in Rebuelta’s case, a police
report that noted Lopes had identified Rebuelta and Contreras as the shooters was
disclosed to defense counsel. On June 3, 2011, Rebuelta entered a plea of guilty to
voluntary manslaughter. He was sentenced to 21 years in prison.
              b.     The Plan to Kill Lopes
       Gabriel Cota was a member of Norteños Most Deadly (NMD), a Norteño-
affiliated gang. Castro, a distant cousin of Cota’s, was a leader of NMD and was able to
get Cota out of another gang and into NMD without being “jumped in.” Cota knew
Rebuelta and Lopes well. Rebuelta was a member of NMD; Lopes was a Norteño gang
member.
       Castro told Cota that Lopes had “snitched” on Rebuelta. Castro told Cota he
wanted to kill Lopes. Cota also wanted to kill Lopes. Castro and Cota drove by Lopes’s
house many times, hoping to find him outside and kill him, but they never saw him.
       In about April or May 2011, Cota wanted to get out of NMD. He had a good job
and wanted to spend more time with his family. Cota spoke to Castro, who told him
there was no getting out. Castro told Cota he would be killed if he wanted to get out.
       Also in April or May 2011, Castro and Cota had a “sit-down” meeting in Castro’s
apartment. Castro said Cota had been showing weakness and that, to move up in the
gang and gain respect, Cota and fellow NMD member Johnny Brown were going to kill
Lopes. Castro explained that Cota would be the driver and would drop Brown off near
Lopes’s house. Brown would pose as a Comcast employee, go to Lopes’s house, and kill
Lopes and whoever else was there. Cota would wait nearby in the car for Brown, and
they would drive away.
              c.     Cota’s Cooperation With the Police
       Cota decided to go to the police and disclose the plan to kill Lopes. He felt he was
being set up to fail, and he did not want to go to jail and be away from his family. Cota




                                             2
did not care about Lopes being killed, but he did not want Lopes’s wife or son to be
killed.
          On June 21, 2011, Cota went to the Hayward Police Department and asked to
speak with someone in the gang suppression unit. He spoke with Detective Brian
Maloney and Officer Padavana.
          Later that day, Cota met with Castro, who gave him “paperwork” showing Lopes
had “snitch[ed]” on Rebuelta, as well as a photograph of Lopes. Castro told Cota to burn
the paperwork and the photograph. Castro also gave Cota a Comcast shirt to give to
Brown. Cota later called Detective Maloney and told him about his meeting with Castro.
          The following day, June 22, 2011, Cota met with the police again. He brought the
paperwork (pages from police reports relating to the Viper Lounge homicide), the
photograph and the Comcast shirt. Castro’s fingerprints were on the paperwork.
          Beginning on June 22, Detective Zachary Hoyer coordinated the investigation.
Cota rode around with the police and pointed out the residences of Castro and other
NMD members, as well as Lopes’s house.
                d.     The NMD Meeting at Castro’s Residence
          On June 25, 2011, Cota wore a concealed recording device to a meeting of NMD
members at Castro’s apartment. Those present included Castro, Cota, Brown, Lorenzo
Farfan, Mike Rodriguez, Ruby Farfan, Francisco Chavez and two other NMD members.
They met in Castro’s bedroom. An audio recording of the meeting was played for the
jury.
          After Castro called the meeting to order, he asked how Cota and Brown felt.
Brown responded that he was “cool with it,” but “[w]e just need to sit down and plan it.”
Castro said, “That’s what we’re gonna do today.” Castro said Brown and Cota needed to
do their own reconnaissance and make sure they knew the route. Mike Rodriguez asked
whether Brown had figured out his exit, and Brown stated he was leaving through the
back.
          Castro drew a map of the area around Lopes’s house and showed where Cota
would be waiting on the other side of the back fence, as well as the route to the freeway.


                                              3
Castro asked Cota whether he had destroyed the items Castro had given him. Cota said
he had burned them. Castro told Brown that he should avoid talking and should make it
look like a home invasion robbery.
         Brown said that he was going to have his gang tattoo removed, so the gang would
not be implicated if he were caught, and that he was planning to go into hiding
afterwards. Castro said he expected to be questioned by the police after the crime.
Brown asked who was going to be the “middle person to go to, to let [Castro] know what
went down.” Castro replied that Francisco Chavez would do that.
         Castro, Brown and Cota discussed when Brown and Cota should do the
reconnaissance and carry out the crime. Castro stated the crime had to occur when he
was at work. The meeting participants also discussed whether Brown should carry
Comcast boxes, what he should wear, whether he should shave his mustache, and what
type of weapon he should use. Castro suggested that Brown use a revolver so no shells
would be left behind. Castro also suggested stabbing anyone who screamed in the neck,
stating, “I don’t give a fuck if it’s his wife, his son, whatever. To me they’re all pieces of
shit anyways.” Castro said he wanted it done soon, because Lopes had just gotten out of
the hospital and knew there were people out to get him. Castro said, “I’m pretty sure
while he’s doing his twenty-one years, he’ll feel a lot better knowing that motherfucker’s
dead.”
         When Castro asked if anyone had any advice, or anything to add, Mike Rodriguez
said, “Obey the fuckin’ speed limit.” There was also a discussion of the license plates on
the car Cota was to drive. Finally, Ruby Farfan, NMD’s treasurer, led a discussion about
the collection of dues and stressed that the gang had four people “locked up” who needed
money.
         After the meeting, police warned Lopes of the threat to his life. Lopes, who had
just been released from the hospital and was bedridden, agreed to move from his
residence.




                                              4
              e.     Pretext Calls and Reconnaissance
       On June 29, 2011, Cota made pretext calls from the police station to several NMD
members. Recordings of the conversations were played for the jury. Cota called Castro
and discussed how to obtain license plates to use on the getaway car. Castro told Cota
that he should get plates or have someone else in the gang do so. Castro stated that
“Lorenzo’s pretty good at shit like that.” Cota also telephoned Brown to discuss their
plans for conducting reconnaissance of the area around Lopes’s house. Brown told Cota
to give Ruby Farfan the address of Lopes’s residence. When he did so, Ruby Farfan
wrote the address down. Finally, Cota telephoned Lorenzo Farfan, who confirmed he
would obtain license plates for Cota to use.
       On July 1, 2011, Cota and Brown drove by Lopes’s home and around the
surrounding neighborhood to “scope[] out the area.” Their conversation in Cota’s car
was recorded by the police, and the recording was played for the jury. During the drive,
Cota and Brown discussed when they would kill Lopes, the weapon Brown was going to
use, and whether he would have to shoot Lopes’s wife and dog.
       On July 5, 2011, Cota made additional pretext calls. Cota called Lorenzo Farfan,
who confirmed he would be able to get the license plates for Cota soon. Cota also called
Brown. Brown said that Castro had told Brown not to call him anymore. Brown said
Castro and Lorenzo Farfan had told him that they trusted him enough to do it his way.
Cota and Brown discussed the license plates and the date for the murder.
       On July 6, 2011, Lopes died of natural causes.
              f.     Arrests and Searches
       Castro was arrested on July 8, 2011. He was wearing a red belt with the number
14 on the belt buckle. He was carrying a knife in his front left pants pocket. His key ring
had a key that police later used to open a safe in his closet.
       Police searched Castro’s residence. In the safe in his closet, they found a pistol
with a loaded magazine inside of it, money, a white piece of paper identified as an essay
by Cota, yellow prison “kites” (a type of gang propaganda), a black mask or hood, and
pay stubs in Castro’s name from Save Mart. Cota testified Castro had required him to


                                               5
write the essay about gang principles as a form of discipline. Cota also testified he had
seen Castro put money, a gun, kites and the essay in the safe. Also in Castro’s bedroom,
police found a rifle, a bulletproof vest, two red bandanas, and a letter addressed to Castro
with Rebuelta’s return address. Above the bedroom door was a piece of art depicting a
Huelga bird, which is used as a symbol by Norteño gangs.
       Also on July 8, 2011, police arrested Brown, Ruby Farfan and Lorenzo Farfan.
Police searched the residence shared by Brown, Ruby Farfan and Michael Rodriguez.
They found a nine-millimeter Ruger semiautomatic handgun in Brown’s bedroom closet.
The gun was not loaded, but under the gun was a magazine loaded with 10 bullets, as
well as one loose bullet. Also in Brown’s room, police found a hat with “NMD”
embroidered on it, and a piece of paper with Lopes’s address written on it. In Ruby
Farfan’s bedroom, police found a binder with a list of names and amounts written on a
notepad inside of it. There was also cash inside the binder. Also in Ruby Farfan’s
bedroom, police found a pad of paper with Lopes’s address written on it.
       Finally, on July 8, 2011, police searched Rene Rebuelta’s jail cell. Police found
redacted police reports, as well as correspondence and other documents. The pages of
“paperwork” that Cota had obtained from Castro and given to the police corresponded to
missing pages from the police reports in Rebuelta’s cell. Police photographed Rebuelta’s
tattoos, which included “NMD” on his chest, “Death 14 Dishonor” on his arm, and “14”
on his back.
       2.      The Defense Case
       Castro testified and denied entering a conspiracy to kill Lopes. Castro testified
that his statement at the June 25, 2011 meeting about frequently driving by Lopes’s house
was an exaggeration. Castro admitted he had been involved in the “gang life” when he
was younger.
       Castro testified about a stabbing that occurred while he was in jail awaiting trial.
Just prior to the stabbing, Castro and his cellmate were sitting next to the stabbing victim,
who had testified against a Norteño gang member in a murder case. Castro denied that he
and his cellmate took part in the attack.


                                              6
B.     The Charges, Verdict and Sentence
       A grand jury indictment charged Castro with conspiracy to commit murder (Pen.
Code,1 §§ 182, subd. (a)(1), 187, subd. (a)). The indictment alleged Castro committed
the offense for the benefit of, at the direction of, or in association with a criminal street
gang (§ 186.22, subd. (b)). The jury convicted Castro of the conspiracy charge and found
the gang allegation true. The court sentenced Castro to 25 years to life in prison, with a
requirement that he serve a minimum of 15 calendar years before becoming eligible for
parole. Castro appealed.
                                      II. DISCUSSION
A.     Sufficiency of the Evidence
       Castro argues there was insufficient evidence to support the conspiracy conviction
or the gang enhancement. In determining the sufficiency of the evidence to support a
conviction or an enhancement, “ ‘ “we review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Wilson
(2008) 44 Cal.4th 758, 806.) “We presume every fact in support of the judgment the trier
of fact could have reasonably deduced from the evidence. . . . ‘A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Albillar (2010)
51 Cal.4th 47, 60.)
       1.       Conspiracy
       “The necessary elements of a criminal conspiracy are: (1) an agreement between
two or more persons; (2) with the specific intent to agree to commit a public offense;
(3) with the further specific intent to commit that offense; and (4) an overt act committed
by one or more of the parties for the purpose of accomplishing the object of the
agreement or conspiracy.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1128 (Liu).)



       1
           All statutory references are to the Penal Code unless otherwise stated.


                                               7
       Castro argues that, since Cota was working with the police as of June 21, 2011, his
“feigned” participation in the plot to kill Lopes cannot establish the agreement and intent
elements of conspiracy. In cases involving only two persons, one of whom is a
government agent or informer, the other cannot be convicted of conspiracy, “because the
crime of conspiracy requires at least two people to have the requisite criminal specific
intent, and a government agent by definition cannot be a coconspirator.” (Liu, supra, 46
Cal.App.4th at p. 1128.) But as Castro acknowledges, this rule does not apply to
conspiracies of more than two persons. As Division Three of this court explained in Liu,
“the feigned participation of a false coconspirator or government agent in a conspiracy of
more than two people does not negate criminal liability for conspiracy, as long as there
are at least two other coconspirators who actually agree to the commission of the subject
crime, specifically intend that the crime be committed, and themselves commit at least
one overt act for the purpose of accomplishing the object of the conspiracy.” (Id. at
p. 1131.)
       Applying this standard, there is sufficient evidence to support Castro’s conspiracy
conviction. The evidence supports a conclusion that multiple actual coconspirators—
Castro, Brown and other NMD members—agreed to kill Lopes and intended that the
crime be committed. Cota testified that Castro presented to him a plan in which Cota
would be the driver and Brown would kill Lopes. The audio recording of the NMD
meeting in Castro’s bedroom supports the conclusion that Castro, Brown and others
agreed and intended to kill Lopes. Castro suggests it is not clear from the recording what
type of action against Lopes was being discussed, or whether anyone other than Brown
and Cota agreed that such action should occur. But the jury reasonably could conclude
that the participants in the meeting were discussing a plan to kill Lopes, and agreed and
intended that the killing occur.
       The meeting participants discussed when Brown and Cota should commit the
crime, including the need for it to happen when Castro was at work so that, if Castro were
questioned by the police, he could say he was at work when the crime occurred. The
participants discussed the need for Brown and Cota to conduct reconnaissance, how


                                             8
Brown should exit the house, where Cota should wait for Brown, the route they should
drive when they left the scene, and the license plates to be used on the car Cota was to
drive. They discussed whether Brown should carry Comcast boxes or other accessories,
what he should wear, and what type of weapon he should use.
       Castro suggests that, while the discussion on the recording may show the
participants were willing “to participate in some form of action against Lopes” (such as
an assault with a firearm), it does not show an agreement to murder him. But the
evidence strongly supported the conclusion that the planned crime discussed on the
recording was the murder of Lopes. Castro suggested in the meeting that Brown use a
revolver because it would not leave shells, and stressed the importance of leaving behind
“the least amount of evidence[.]” Castro explained: “The only thing is the fucking
bullets that are in him, you know what I’m saying?” Castro then said using a knife would
be even better. He stated: “Hopefully, like the way I told you, the way this is gonna
work out, when you, when you pull out the pistol, you’re not even gonna have to use it.
What I want you to do, is stick this motherfucker. You’re gonna get less heat on you
from the cops, for one. They’re gonna look into it a lot less than they will for a shooting.
And on top of it, it isn’t gonna bring as much noise to the area. First person that screams,
stick him in the neck. You know what I’m saying?” Castro also stated: “I’m pretty sure
while he’s doing his twenty-one years, he’ll feel a lot better knowing that motherfucker’s
dead.” (Italics added.) The jury reasonably could conclude Castro intended that Lopes
be killed because he had “snitched” on Rebuelta (who had been sentenced to 21 years in
prison).
       Finally, the recordings of Cota’s pretext calls to NMD members provide additional
evidence of the plan to kill Lopes, and the actions of NMD members in furtherance of
that plan. On the pretext calls, Cota spoke with Castro, Lorenzo Farfan and Brown about
obtaining license plates for the getaway car. Cota and Brown discussed the planned
reconnaissance of the area around Lopes’s house and when they should commit the
crime. On one call, Ruby Farfan wrote down Lopes’s address. Finally, as Cota and
Brown drove around Lopes’s neighborhood, they discussed when they would commit the


                                             9
crime, the weapon Brown was going to use, and whether he would have to shoot Lopes’s
wife and dog.
       2.       The Gang Enhancement
       Section 186.22, subdivision (b) imposes additional punishment on “any person
who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members[.]” A “criminal street gang” is any
ongoing association of three or more persons that (1) has as one of its “primary activities”
the commission of certain specified crimes; (2) has a common name or identifying
symbol; and (3) engages through its members in a “pattern of criminal gang activity.”
(§ 186.22, subd. (f); People v. Gardeley (1996) 14 Cal.4th 605, 617, disapproved on
another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) Castro
contends there was insufficient evidence that NMD’s “primary activities” included the
commission of statutorily enumerated crimes.
       “The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes is one of the group’s
‘chief’ or ‘principal’ occupations. (See Webster’s Internat. Dict. (2d ed. 1942) p. 1963
[defining “primary”].) That definition would necessarily exclude the occasional
commission of those crimes by the group’s members.” (People v. Sengpadychith (2001)
26 Cal.4th 316, 323.) Evidence of the past or present commission of enumerated crimes
by group members is relevant in determining the group’s primary activities, but is not
necessarily sufficient on its own to establish the group’s primary activities. (Ibid.)
Evidence that a group’s members consistently and repeatedly have committed
enumerated crimes can establish the group’s primary activities. (Id. at p. 324.) Expert
opinion testimony on this point also may be sufficient. (Ibid.)
       Substantial evidence supports a conclusion that NMD’s primary activities included
the commission of statutorily enumerated crimes. In addition to the charged conspiracy
to commit murder, the prosecution presented evidence of three other enumerated crimes
committed by NMD members: (1) NMD member Francisco Chavez possessed a loaded


                                             10
firearm on April 1, 2007, and later was convicted of a misdemeanor violation of former
section 12031 (now § 25850); (2) NMD member Rene Rebuelta shot and killed someone
at the Viper Lounge on August 30, 2008, and later was convicted of voluntary
manslaughter in violation of section 192; and (3) NMD member Raymond Clack robbed
someone on May 13, 2010, and later was convicted of felony robbery in violation of
section 211. (See § 186.22, subd. (e)(2), (3), (33).)
       In addition, Detective Zachary Hoyer, who testified as an expert on gangs, gang
conduct and gang characteristics, opined that NMD’s primary activities included the
commission of conspiracy to commit murder, carrying loaded firearms, voluntary
manslaughter and robbery. Hoyer based his opinion on the prior arrests and convictions
for such offenses by NMD gang members. He also based his opinion on his discussions
with Cota about NMD gang members and their activities. Hoyer testified NMD had
approximately 20 members and was a subset of the Norteños criminal street gang, which
is associated with the color red and the number 14. Hoyer’s experience included working
for three and one-half years in the Hayward Police Department’s gang unit, where his
primary duties included making contact with, and collecting information about, gang
members. He subsequently worked for two and one-half years as a detective in the
department’s gang investigations unit. He participated in dozens of gang-related
investigations, spoke with hundreds of gang members, and received training specific to
gang activity. Detective Hoyer’s expert testimony, along with the evidence of specific
crimes committed by NMD members, provided substantial evidence that NMD’s primary
activities included statutorily enumerated offenses. (See People v. Duran (2002) 97
Cal.App.4th 1448, 1465 [testimony of gang expert may be sufficient to prove a group’s
primary activities].)
       Castro contends the prior offenses by NMD members do not establish the
“primary activities” element of the statutory definition of “criminal street gang,” because
the prosecution did not prove those offenses were committed for the benefit of a gang.
We reject this argument. When the prosecution introduces evidence of offenses
committed by members of a group to establish that the group is a criminal street gang, the


                                             11
prosecution need not prove those offenses were themselves gang-related. (See People v.
Gardeley, supra, 14 Cal.4th at pp. 621–622 [predicate offenses used to establish “pattern
of criminal gang activity” need not themselves be gang-related].)
       The prosecution did have to prove the charged offense was committed either
(a) for the benefit of, (b) at the direction of, or (c) in association with a criminal street
gang. (§ 186.22, subd. (b); In re Daniel C. (2011) 195 Cal.App.4th 1350, 1358.) The
evidence supports two of these alternatives. First, there was substantial evidence Castro
committed the offense “in association with” a criminal street gang within the meaning of
section 186.22, as he conspired with Brown and other NMD members. (See In re Daniel
C., supra, 195 Cal.App.4th at pp. 1358–1359.) Second, there was substantial evidence
Castro committed the offense “for the benefit of” NMD. As outlined above, the evidence
(including Cota’s testimony and the recording of the NMD meeting) supported a
conclusion that Castro wanted Lopes killed because he had “snitched” on NMD member
Rebuelta. Detective Hoyer opined that, if a person were to “snitch” on a gang member,
killing the “snitch” would benefit the gang. Detective Hoyer explained that acts of
violence against informants or others who assist law enforcement have the effect of
instilling fear in the community and deterring people from cooperating with law
enforcement or providing information about crimes committed by gang members.
       Castro argues Detective Hoyer’s testimony on this point did not support a
conclusion the charged crime was committed for the benefit of NMD because “retaliation
against police informants is not restricted to gangs.” But the section 186.22,
subdivision (b) enhancement does not require that the charged crime benefit a criminal
street gang in a way that is unique to such gangs. The fact that persons involved in other
criminal enterprises or activities may also engage in violence against informants does not
mean there is insufficient evidence that the planned killing of Lopes was for the benefit
of NMD.
       Castro also notes there is evidence NMD members wanted to conceal their
involvement in the planned killing, such as Brown’s reference to having his gang tattoo
removed. But the jury reasonably could conclude that, even if the conspirators wanted to


                                               12
avoid providing evidence that would allow police to tie the killing to NMD, the killing of
Lopes nevertheless would benefit NMD by avenging Rebuelta and deterring future
cooperation by others in the community.
       Finally, Castro argues there was not a sufficient foundation for Detective Hoyer’s
testimony as to the primary activities of NMD. In re Alexander L. (2007) 149
Cal.App.4th 605, on which Castro relies, is distinguishable. In In re Alexander L., a gang
expert just stated he “ ‘kn[e]w’ ” members of the alleged gang had committed certain
types of crimes, and the prosecutor elicited no testimony from the expert about the bases
for his opinion. (Id. at pp. 611–612.) The appellate court concluded this testimony
lacked an adequate foundation and did not provide sufficient evidence that the alleged
gang’s primary activities included the commission of enumerated crimes. (Id. at pp. 612–
614.) Here, in contrast, Detective Hoyer testified his opinion as to the primary activities
of NMD was based on the arrests and convictions of named NMD members and on his
conversations with former NMD member Cota. His testimony, together with the
evidence of the charged conspiracy and the prior convictions of NMD members for
enumerated offenses, constituted substantial evidence that the primary activities of NMD
included the commission of enumerated offenses.2
B.     Alleged Instructional Errors
       Castro contends the trial court erred by failing to instruct the jury sua sponte on
withdrawal from conspiracy, two lesser included offenses, and the need to view
accomplice testimony with distrust. We find no prejudicial error.
       1.     Withdrawal From Conspiracy
       Castro argues the trial court should have instructed the jury sua sponte that he was
not guilty of conspiracy if he withdrew from the conspiracy before any overt act was
committed. (People v. Crosby (1962) 58 Cal.2d 713, 731.) We disagree.



       2
        Castro does not contend on appeal that any portion of Detective Hoyer’s
testimony constituted inadmissible hearsay, so we do not address any such claim. (See
People v. Sanchez, supra, 63 Cal.4th at pp. 670–671.)

                                             13
       “It is well settled that a defendant has a right to have the trial court . . . give a jury
instruction on any affirmative defense for which the record contains substantial evidence
[citation]—evidence sufficient for a reasonable jury to find in favor of the defendant
[citation]—unless the defense is inconsistent with the defendant’s theory of the case
[citation]. In determining whether the evidence is sufficient to warrant a jury instruction,
the trial court does not determine the credibility of the defense evidence, but only
whether ‘there was evidence which, if believed by the jury, was sufficient to raise a
reasonable doubt.’ ” (People v. Salas (2006) 37 Cal.4th 967, 982.)
       “ ‘Generally, a defendant’s mere failure to continue previously active participation
in a conspiracy is not enough to constitute withdrawal.’ ” (People v. Lowery (1988) 200
Cal.App.3d 1207, 1220.) Instead, the defense of withdrawal from a conspiracy “requires
‘an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to
the coconspirators.’ ” (People v. Sconce (1991) 228 Cal.App.3d 693, 701.)
       No substantial evidence raised a reasonable doubt that Castro withdrew from the
conspiracy. Castro points to the recording of a July 5, 2011 pretext call, in which Brown
stated to Cota: “I guess [Castro] don’t want me calling no more . . . .” Cota replied:
“Yeah he told me not to call him either . . . .” These brief statements did not constitute
substantial evidence that Castro affirmatively rejected or repudiated the conspiracy that
he, Brown and others discussed at the June 25, 2011 meeting. To the contrary, Brown’s
understanding (expressed in the July 5 call) that Castro did not want Brown to call him
was consistent with Castro’s instructions to Brown at the June 25 meeting. At that
meeting, Brown stated “[w]e just need to sit down and plan it,” and Castro replied,
“That’s what we’re gonna do today.” Castro then instructed Brown: “Okay, you know
the area, so within this week, you need to make time to take him [i.e., Cota] and do your
own reconnaissance. Do that shit by yourself. Me and you are not gonna have contact
for a while . . . .” (Italics added.) After Castro expressed the view that he would be
suspected after the crime occurred, Brown asked who was going to be the “middle person
to go to, to let [Castro] know what went down.” After responding that Francisco Chavez
would do that, Castro stated, “You’re just gonna stay away from me, period.” Castro also


                                               14
emphasized the crime had to occur while he was at work, stating: “They try to say it was
me, I was at work.”
       Castro’s apparent statement (at some point after the June 25 meeting) that Brown
and Cota should not contact him was consistent with the conspirators’ original plan, and
did not constitute substantial evidence that Castro affirmatively rejected or repudiated the
conspiracy. Contrary to Castro’s suggestion in his appellate briefs, there is no evidence
that Castro told Brown or anyone else that he “no longer wanted anything to do with” the
plan to kill Lopes.
       In support of his appellate argument that a withdrawal instruction was required,
Castro also cites his own testimony that he never intended or agreed to kill Lopes. That
testimony does not support (and indeed is inconsistent with) a conclusion that Castro
participated in, but then withdrew from, the conspiracy to kill Lopes.
       Finally, in his reply brief, Castro points to Cota’s testimony about Brown’s
statement on the July 5 pretext call that the crime was going to happen his way. This
evidence does not assist Castro. On that call, Brown stated it was going to happen his
way, and then stated that Castro and Lorenzo Farfan had told Brown that they trusted him
enough to “ ‘do it [his] way.’ ” Brown’s understanding (apparently based in part on a
statement by Castro) that he had discretion as to how to carry out the crime does not
constitute substantial evidence that Castro affirmatively rejected or repudiated the
conspiracy.
       2.     Conspiracy To Commit Assault With A Firearm
       Castro contends the court should have instructed the jury sua sponte on the offense
of conspiracy to commit assault with a firearm as a lesser included offense of the charged
conspiracy to commit murder. The Attorney General counters that conspiracy to commit
assault with a firearm is not a lesser included offense of conspiracy to commit murder,
and that the evidence did not support an instruction on the lesser offense in any event.
       A trial court must instruct sua sponte on a lesser included offense if there is
“ ‘ “substantial evidence” [citation], “ ‘which, if accepted . . . , would absolve [the]
defendant from guilt of the greater offense’ [citation] but not the lesser.” ’ [Citation.]


                                              15
Evidence is substantial if ‘a reasonable jury could find [it] persuasive.’ ” (People v.
Millbrook (2014) 222 Cal.App.4th 1122, 1137.) When the defendant is charged with
conspiracy to commit a specified target offense, “the trial court has a sua sponte
obligation to instruct on lesser included target offenses if there is evidence from which
the jury could find a conspiracy to commit a lesser offense.” (People v. Fenenbock
(1996) 46 Cal.App.4th 1688, 1706 (Fenenbock).)
       A lesser offense is necessarily included in a greater offense if one of two tests—
the “ ‘elements’ test” and the “ ‘accusatory pleading’ test”—is met. (People v. Lopez
(1998) 19 Cal.4th 282, 288.) The elements test is satisfied if the greater offense cannot
be committed without also committing the lesser offense. (Ibid.) “Under the accusatory
pleading test, a lesser offense is included within the greater charged offense ‘ “if the
charging allegations of the accusatory pleading include language describing the offense
in such a way that if committed as specified the lesser offense is necessarily
committed.” ’ ” (Id. at pp. 288–289.)
       A conspiracy to commit murder, like the crime of murder itself, does not require
use of a firearm. Accordingly, under the elements test, conspiracy to commit assault with
a firearm is not a lesser included offense of conspiracy to commit murder; the parties
agree on this point. (See People v. Cook (2001) 91 Cal.App.4th 910, 918–919 (Cook).)
       The parties also note there is a split of authority as to how the accusatory pleading
test should be applied in conspiracy cases. In Fenenbock, Division One of this court held
that, in determining whether a lesser offense is necessarily included in the offense that is
alleged to be the target of the conspiracy, courts should consider only “the description of
the agreement within the accusatory pleading, not the description of the overt acts[.]”
(Fenenbock, supra, 46 Cal.App.4th at p. 1709.) The Fenenbock court reasoned that, in a
conspiracy prosecution, “[i]t is the agreement, not the overt act in furtherance of the
agreement, which constitutes the offense.” (Ibid.) Because overt acts need not be
criminal offenses and need not be committed by the defendant, “the description of the
overt acts in the accusatory pleading does not provide notice of lesser offenses
necessarily committed by the defendant.” (Ibid.) Accordingly, where the information


                                             16
alleged only that the defendants conspired to murder the victim, there was nothing to
indicate an agreement with a lesser objective, and the trial court was not required to
instruct sua sponte on conspiracy to commit assault, battery or mayhem. (Ibid.)
       In Cook, the Third District disagreed with Fenenbock, and held that, in some
circumstances, the overt acts alleged in an accusatory pleading can provide notice of
lesser included offenses. (Cook, supra, 91 Cal.App.4th at pp. 920–921.) The information
in Cook charged the defendants with conspiracy to commit murder, and alleged several
overt acts, including (1) the defendants acquired a gun, and (2) one defendant shot the
two victims, killing one and wounding another. (Id. at pp. 914–915, 919, fn. 22.) The
trial court instructed the jury that conspiracy to commit assault with a firearm was a
lesser included offense of conspiracy to commit murder, and the jury convicted the
defendants of the lesser conspiracy charge (as well as convicting them of murder and
other substantive offenses). (Id. at pp. 914–915.) On appeal, the defendants argued the
trial court had erred in instructing on the lesser conspiracy offense. (Id. at p. 915.) The
appellate court rejected this argument, holding the overt acts gave notice that the
defendants were charged with conspiracy to commit murder by means of a firearm, an
offense that cannot be committed without also committing assault with a firearm. (Id. at
p. 920.) The appellate court held that, under the accusatory pleading test, the trial court
had properly instructed the jury that conspiracy to commit assault with a firearm was a
lesser included offense of conspiracy to commit murder. (Ibid.)
       We need not decide whether Fenenbock or Cook states the better rule, because we
find no error under either approach. First, the indictment alleges generally that Castro
and others conspired to commit murder; nothing in this allegation suggests an agreement
to commit a lesser crime. Accordingly, under Fenenbock, there was no basis for an
instruction on a conspiracy to commit a lesser crime. (See Fenenbock, supra, 46
Cal.App.4th at p. 1709.)
       Second, assuming the Cook approach should apply and the overt acts in the
indictment may be considered, we find no error. Castro contends an instruction on
conspiracy to commit assault with a firearm was warranted under Cook, because one of


                                             17
the 11 overt acts alleged in the indictment is that, “[o]n or about July 8, 2011, [Brown]
. . . possessed a 9 mm pistol and 9 mm ammunition.” Even assuming that, under Cook,
that overt act is sufficient to establish that conspiracy to commit assault with a firearm is
a lesser included offense of the charged conspiracy to commit murder, we find no error.
There was no substantial evidence that would absolve Castro of conspiracy to commit
murder, but not conspiracy to commit assault with a firearm. (See People v. Millbrook,
supra, 222 Cal.App.4th at p. 1137.)
       If the jurors believed Castro participated in a conspiracy (a conclusion that, as
discussed above, was amply supported by the evidence, including Cota’s testimony, the
audio recording of the June 25 meeting, and the recording of the pretext call to Castro),
they could not reasonably conclude the object of that conspiracy was to assault Lopes
with a firearm rather than to kill him. As noted, Castro’s statements at the June 25
meeting strongly support the conclusion he wanted Lopes killed. Castro stressed it was
important to leave behind as little evidence as possible, suggesting to that end that Brown
use a revolver because it would not leave shells, and would just leave “the fucking bullets
that are in him.” Castro then suggested using a knife to “stick” Lopes (and his family if
necessary), because that would trigger less police attention than a shooting. Finally,
Castro, referring to Rebuelta’s 21-year prison sentence, stated: “I’m pretty sure while
he’s doing his twenty-one years, he’ll feel a lot better knowing that motherfucker’s
dead.” (Italics added.)
       In contrast to this ample evidence that the object of the conspiracy was murder,
there was no evidence supporting a conclusion that the conspirators intended only to
assault Lopes with a firearm (perhaps to frighten or wound him), but did not intend to kill
him. Castro points to his own testimony about his statement during the June 25 meeting
that “it” would have to happen when he was at work; Castro testified “it” changed and
meant “a lot of different things,” but “it” did not mean the murder of Lopes. Castro’s
assertion that “it” did not mean the killing of Lopes does not constitute substantial
evidence that “it” referred to an alternative plan to assault Lopes with a firearm, or that
such an assault was the object of the conspiracy.


                                             18
        3.     Solicitation to Commit Murder
        Castro also contends the court should have instructed sua sponte on solicitation to
commit murder (§ 653f, subd. (b)) as a lesser included offense of conspiracy to commit
murder. As noted, the trial court is required to instruct on a lesser included offense if
substantial evidence exists that the defendant is guilty only of the lesser offense. (People
v. Manriquez (2005) 37 Cal.4th 547, 584.) But the court need not instruct on a lesser
included offense if the evidence is such that the defendant, if guilty at all, was guilty of
something beyond the lesser offense. (People v. Morrison (1964) 228 Cal.App.2d 707,
713.)
        The elements of solicitation are an offer or invitation to another to commit a crime
and the intent that the crime be committed. (People v. Wilson (2005) 36 Cal.4th 309,
328.) The crime of solicitation is complete as soon as the verbal request is made with the
requisite intent, and is punishable regardless of the agreement of the person solicited or
any overt act. (Ibid.) Accordingly, intent that the crime of murder be committed is
common to both solicitation of murder and conspiracy to murder. In addition to this
intent, the crime of conspiracy requires an agreement and some overt act in furtherance of
the agreement.
        Castro contends the jury could have concluded that he solicited the murder of
Lopes by giving Cota a photograph of Lopes and a portion of a police report about Lopes
(two of the overt acts alleged in the indictment), but that no one else agreed Lopes should
be killed. But the evidence showing Castro’s intent that Lopes be murdered (an essential
element of both solicitation and conspiracy) also showed an agreement that Lopes be
murdered. As discussed above, the recording of the June 25 meeting demonstrates
Castro’s plan was to kill Lopes. And the recording reflects that the meeting participants
agreed with that objective, as they discussed various aspects of the plan, including the
need for Brown and Cota to conduct reconnaissance, how Brown should exit the house,
where Cota should wait for Brown, the route they should drive to leave the scene, and the
license plates they should use. They discussed whether Brown should carry Comcast
accessories, what he should wear, and what type of weapon he should use. They


                                              19
discussed when Brown and Cota should commit the crime, including the need for it to
happen when Castro was at work. In light of this evidence establishing the agreement
and overt acts elements of conspiracy,3 Castro was guilty, if at all, of conspiracy to
murder rather than solicitation of murder.
       4.     Accomplice Testimony
       Castro argues the court should have instructed the jury to view Cota’s testimony
with caution or distrust because he was an accomplice. Section 1111 provides that a
defendant cannot be convicted of a crime on the basis of an accomplice’s testimony
unless that testimony is corroborated by other evidence connecting the defendant with the
offense. (§ 1111.) An accomplice is a person “who is liable to prosecution for the
identical offense charged against the defendant on trial . . . .” (Ibid.) When there is
sufficient evidence that a witness is an accomplice, the trial court has a sua sponte duty to
instruct the jury on the principles governing the law of accomplices, including the need
for corroboration (People v. Tobias (2001) 25 Cal.4th 327, 331), and the need to view
with caution any accomplice testimony that tends to incriminate the defendant (People v.
Guiuan (1998) 18 Cal.4th 558, 569).
       Castro contends Cota was an accomplice (i.e., subject to prosecution for the
charged conspiracy) based on his conduct before he went to the police. Even assuming
this is correct, any error in failing to instruct on accomplice testimony was harmless. “A
trial court’s failure to instruct on accomplice liability under section 1111 is harmless if
there is ‘sufficient corroborating evidence in the record.’ [Citation.] To corroborate the
testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is,
evidence that ‘tends to connect the defendant with the crime charged’ without aid or
assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is
sufficient if it tends to implicate the defendant and thus relates to some act or fact that is
an element of the crime. [Citations.] ‘ “[T]he corroborative evidence may be slight and


       3
        Two of the overt acts alleged in the indictment were (1) Castro’s assembling of
the meeting and (2) the conspirators’ attendance at the meeting.


                                              20
entitled to little consideration when standing alone.” ’ ” (People v. Avila (2006) 38
Cal.4th 491, 562–563.)
       As discussed above, the audio recording of the June 25 meeting provides ample
evidence that Castro intended and agreed that Lopes be killed. On appeal, Castro asserts
that the recording of the meeting shows only that Brown and Cota were considering
taking action against Lopes. This is incorrect. The recording reveals that Castro and the
other participants in the meeting discussed numerous aspects of the plan to kill Lopes,
including when the crime should occur, what Brown should wear and carry, the best
escape route, and the weapon to be used. In addition, Castro stated Rebuelta would feel
better knowing Lopes was dead. During the meeting, Castro referred to the “paperwork”
(police reports) showing Lopes was a “snitch.” Castro’s fingerprints were on the
paperwork. This evidence is sufficient to connect Castro to the charged conspiracy
without the assistance of Cota’s testimony.
                                   III. DISPOSITION
       The judgment is affirmed.




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                                 _________________________
                                 Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




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