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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JACOB CASTRO,

Defendant and Appellant.

 A138968

 (Alameda County

 Super. Ct. No. C168413A)

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 Norteñoaffiliated 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 
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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. 
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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. 
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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 
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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. 
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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. 
8

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 
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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 
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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 
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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
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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 
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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.)
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“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 
15

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.] 
16

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
17

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 
18

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. 
19

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
20

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. 
21

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. 
22

_________________________

Streeter, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.