Mexican Mafia conspiracy and lack of overt acts

Jay Leiderman
By: Jay Leiderman
August 20 2016


In California, the crime of conspiracy has four elements: “(1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy.”  (People v. Vu (2006) 143 Cal.App.4th 1009, 1024 [quoting People v. Morante (1999) 20 Cal.4th 403, 416]; Penal Code §§ 182, 184.)  Moreover, the overt acts must be “expressly alleged in the indictment.”  (Penal Code § 182(b).)  An overt act is “an act showing that the conspiracy has gone beyond the state of a mere meeting of the minds . . . and that action between conspirators as such has begun.”  (People v. Sullivan (1952) 113 Cal.App.2d 510, 524.)

In this case, sixteen of the alleged Mexican Mafia conspiracies allege overt acts that are not, in fact, overt acts.  Penal Code § 184 provides the requirement that the People prove an overt act beyond agreement.[1] Indeed, the People’s grand jury instructions recognized this: as the prosecutor correctly told the grand jury, “An overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.”  (GJT p. 659:26-27.)  Yet surprisingly, the Indictment repeatedly mischaracterizes mere discussion and agreement as overt acts capable of supporting a conspiracy charge.

All of these counts suffer from the same deficiency: none of them expressly allege any overt acts beyond agreement or planning.  (Id. at pp. 5-7, 9-11, 14-15.)  They should be set aside.


Mexican Mafia
The black hand is one of the key symbols of the Mexican Mafia prison gang.


Moreover, the People’s failure to present any evidence of overt acts on most of these counts also violates the corpus delicti rule.  This rule requires a prosecution to prove “that a crime actually occurred—by evidence other than the defendant’s own out-of-court statements.”  (People v. Herrera (2006) 136 Cal.App.4th 1191, 1200.)  The rule “reflects the . . . fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically.”  (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 397)  “In other words, as historically applied, the rule requires corroboration of the defendant’s extrajudicial utterances insofar as they indicate a crime was committed, and forces the People to supply, as part of their burden of proof in every criminal prosecution, some evidence of the corpus delicti aside from, or in addition to, such statements.”  (People v. Alvarez (2002) 27 Cal.4th 1161, 1178 [emphasis in original]; see also Herrera, supra, 136 Cal.App.4th 1191 [the corpus delicti rule applies to preliminary hearings and § 995 motions, not just trials and convictions].)  This independent evidence “need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues.”  (Alvarez, supra, 27 Cal.4th at p. 1181; see also People v. Cobb (1955) 45 Cal.2d 158, 161 [“All that need be shown by independent evidence . . . is that a crime has been committed by someone.”].)

The People have no such independent evidence—none at all—as both the grand jury proceedings and Mexican Mafia Indictment demonstrate.  The overwhelming bulk of the presentation to the grand jury consisted purely of intercepted phone conversations.  And the “overt acts” alleged in the conspiracy counts are just small parts of these preparatory conversations, repeated in the Indictment.  They are hardly acts at all.  The People neither presented evidence nor alleged anyone ever performed an actual overt act in furtherance of these conspiracies.  The only evidence the grand jury heard were “extrajudicial utterances” intercepted by wiretaps.  Thus, with respect to Counts 2, 3, 4, 5, 6, 8, 9, 11, 18, 19, 21, 30, 31 and 32, not only did the People fail to satisfy Penal Code § 184’s requirement that a conspiracy conviction must be supported by evidence of an overt act, they also failed to corroborate the defendants’ out-of -court statements as required by the corpus delicti rule.  These counts must be dismissed.

[1] “No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done.”  (Penal Code § 184 [emphasis added].)

[2] Counsel wishes to point out that this instruction to carjack someone was, in context, an obvious joke.  To find it included in the Indictment as a serious allegation is, to say the least, frustrating.



Mexican Mafia
Attorney Jay Leiderman is one of the few California State Bar Certified Criminal Law Speialists. Pictured here: Jay gives one of his many radio interviews


One thought on “Mexican Mafia conspiracy and lack of overt acts

  1. It is not enough to know that the men applying the standard are
    honorable and devoted men. This is a government of laws, not of
    men….It is not without signnificance that most of the provisions
    of the Bill of Rights are procedural. It is procedure that spells
    much of the diffenence between rule by law and rule by
    whim or caprice.
    William O. Douglas
    Source:Anti-Fascist Refugee Comm v. McGrath

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