THE EVIDENCE PRESENTED TO THE GRAND JURY SUPPORTS PROBABLE CAUSE FOR ONLY A SINGLE CONSPIRACY TO BENEFIT THE MEXICAN MAFIA; ALL SUBORDINATE CONSPIRACY CHARGES SHOULD BE DISMISSED
“The conspiracy is the crime, and that is one, however diverse its objects.” (Frohwerk v. United States (1919) 249 U.S. 204, 210 [Holmes, J.].) The prosecutor went to great lengths to connect all of the charges in this case—except Count 2—back to a single conspiracy with the objective to sell drugs and extort tax money from local gangs and drug dealers in Ventura County on behalf of the Mexican Mafia Conspiracy. According to the People, every phone call, meeting and conversation was connected to this primary conspiracy. Indeed, the People were required to make these connections for two reasons: first, to support each of the Mexican Mafia gang allegations attached to Counts 3 through 33; and second, to impose co-conspirator liability for substantive offenses committed as a “natural and probable consequence” of the primary conspiracy. (See Prettyman, supra, 14 Cal.4th 248; People v. Kauffman (1907) 152 Cal. 331.) In Prettyman, the California Supreme Court outlined the “natural and probable consequences” rule in the context of aiders and abettors:
To apply the ‘natural and probable consequences’ doctrine to aiders and abettors is not an easy task. The jury must decide whether the defendant (1) with knowledge of the confederate’s unlawful purpose, and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant’s confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated. Instructions describing each step in this process ensure proper application by the jury of the ‘natural and probable consequences’ doctrine.
(Prettyman, supra, 14 Cal.4th at 267 [original emphasis omitted].) The Court also stated that “a conviction may not be based on the jury’s generalized belief that the defendant intended to assist and/or encourage unspecified ‘nefarious’ conduct.” (Id. at p. 268.)
not all conspiracies are for the benefit of a street gang
The Indictment nevertheless alleges eighteen other conspiracies, seventeen of which include the same Mexican Mafia gang allegation. This is contradictory. As the People argued, these subordinate conspiracies were committed for the same purpose as the primary conspiracy. They were not the result of independent agreements. “‘One agreement gives rise to only a single offense, despite any multiplicity of objects.’” (People v. Lopez (1994) 21 Cal.App.4th 1551, 1557; see also 1 Witkin, Cal. Crim. Law 4th (2012) Elements, § 77, p. 372; Braverman v. United States (1942) 317 U.S. 49, 53 [“The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.”].) “The test is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy. If so, there is but a single conspiracy.” (People v. Skelton (1980) 109 Cal.App.3d 691, 718.) As explained in People v. Morocco (1987) 191 Cal.App.3d 1449, 1453: “Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts ‘were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.’ . . . In making this determination, the jury should be instructed to consider whether the multiple crimes requested by the defendant were part of a ‘larger, all-inclusive’ plan with a single objective and/or motive.”
This is a time-honored proposition firmly entrenched in conspiracy law. As proof positive, see the discussion in People v. Lopez (1994) 21 Cal.App.4th 1551, 1557-58:
In In re Nichols (1927) 82 Cal. App. 73 [255 P. 244], the conspirators enticed a man into a rented room with defendant, accosted him, threatened him with suit for alienation of the defendant’s affections, and hired an attorney to file the suit. The conspirators were charged in two counts: conspiracy to commit the crime of extortion and conspiracy to falsely maintain a lawsuit. The defendant was convicted of both counts. She was sentenced to prison on count two and placed on probation on count one.
After reviewing the evidence and the information, the Nichols court found, ‘With reference to the two counts in the information in the case here being considered, it is clear that the basis therefor was a single transaction and involved but one conspiracy.’ (In re Nichols, supra, 82 Cal.App. at p. 79.) The court also quoted with approval from United States v. Weiss (N.D. Ill. 1923) 293 Fed. 992, as follows: ‘“At the threshold it must be noted that the government cannot split up one conspiracy into different indictments, and prosecute all of them, but that prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime.”’ (82 Cal.App. at p. 79) Then quoting the state Supreme Court in People v. Frank (1865) 28 Cal. 507, 513, the Nichols court added, ‘“Where, in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count, for the reason that notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense . . . .”’ (82 Cal.App. at p. 79.)
The Nichols court concluded defendant could be convicted of only one conspiracy count: ‘The instant case, then, stands as though the defendant had been convicted of but one charge of conspiracy; that the trial court granted her application for probation thereon and at the same time sentenced her to state prison for the commission of the identical offense . . . .’ (In re Nichols, supra, 82 Cal.App. at p. 81.) The judgment was reversed and the trial court was directed to rearraign defendant for judgment and to impose only one sentence. (Id. at p. 82.)
True, in general, “the question whether one or multiple conspiracies are present is a question of fact, to be resolved by a properly instructed [trial court] jury.” (Morocco, supra, 191 Cal.App.3d at 1453 [internal quotation marks and citation omitted].) As a result, most of the case law discussing the issue of single or multiple conspiracies discusses jury instructions and jury verdicts. (See, e.g., People v. Jasso (2006) 142 Cal.App.4th 1213 [overturning conviction for trial court’s failure to instruct on a single, overall conspiracy count, rather than the three separate counts on which defendant was convicted] ; People v. Patrick (1981) 126 Cal.App.3d 952 [single kidnapping cannot support convictions for both kidnapping and false imprisonment conspiracies].)
But both the question whether there is probable cause to support a charge pursuant to a § 995 challenge and the question whether a defendant is entitled to a trial court jury instruction are questions of evidentiary sufficiency. (See People v. Vargas (2001) 91 Cal.App.4th 506, 554 [“A trial court is required to instruct the jury to determine whether a single or multiple conspiracies exist only when there is evidence to support alternative findings.”].) As such, courts must consider whether probable cause exists to support multiple conspiracy charges.
 “In sum, we conclude that the court erred in failing to instruct on single versus multiple conspiracies. Moreover, given the strong evidence that the three unsuccessful efforts were merely part of a single agreement between [co-conspirators], we further conclude that it is reasonably probable the jury would have convicted defendant of a single conspiracy rather than three separate counts of conspiracy had it been properly instructed.” (Jasso, supra, 142 Cal.App.4th at 1223.)
Jay Leiderman was the lead attorney on Ventura County, California’s first concentrated Mexican Mafia conspiracy prosecution