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Name: People v. Herrera
Case #: F032745
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/16/2000
Subsequent History: Review denied 11/29/00
Summary

The trial court did not err in allowing Officer Collier to testify that Juanita Hernandez offered to conduct a sale of methamphetamine at appellant’s apartment. First, the trial court found there was sufficient evidence here to support a finding that it was more likely than not that appellant and Hernandez, the coconspirator/codefendant, were in a conspiracy at the time the statement was made. This was sufficient to satisfy Evidence Code section 403’s requirements regarding establishment of preliminary fact. The prosecution had attempted to introduce this statement as an admission of a co-conspirator pursuant to Evidence Code section 1223. While California courts require that the existence of the conspiracy be established by evidence independent of the proffered declaration, it is ambiguous whether the trial court used the declaration at issue in determining there was sufficient evidence of the conspiracy. If it did, it would be error, but here the error would be harmless. Once the existence of the conspiracy is established by sufficient prima facie evidence, the content of the statement itself must be considered in determining whether the declaration was in furtherance of what is prima facie established by independent evidence to have been the object of the conspiracy. The jury was instructed not to consider the statement of a coconspirator unless it found, independent of the statement, that a conspiracy existed at the time the statement was made. It was also told that in order for a conspiracy to exist, there must be two or more persons with the specific intent to agree to commit the crimes charged in counts one through three, and the additional specific intent to commit those crimes. It is more likely that not that the statement was made while the coconspirator was participating in the crime of possessing methamphetamine for sale, was made in furtherance of this crime, and was made during the time appellant was participating in the crime by agreeing with the coconspirator to possess methamphetamine for sale and with the intent to commit that offense. Because the evidence would support such a determination by the trier of fact, the statement was properly admitted. Moreover, the jury was instructed with CALJIC 6.24 that it was not to consider the statement of a coconspirator unless it found, independent of the statement, that a conspiracy existed at the time the statement was made.