Filed 11/9/21 P. v. Rivera CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE DE JESUS RIVERA,

Defendant and Appellant.

 B306136

 (Los Angeles County

 Super. Ct. No. TA143615)

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.
2

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 information1filed 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. 

1The 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.
3

(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 
4

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 
5

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 
6

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 
7

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. 
8

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.” 
9

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 
10

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.
11

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 
12

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), 
13

“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 
14

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. 
15

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 
16

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.
17

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 
18

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 
19

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.