What is the test for proving there was a conspiracy between a defendant and a third party to commit a Page 12 crime?

Generally, hearsay evidence is inadmissible unless an exception applies. (Evid. Code, 1200.) Evidence Code section 1223 codifies the coconspirator exception to the hearsay rule. This section provides that evidence is not made inadmissible under the prohibition against hearsay if the challenged statement was "made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy" and was made "prior to or during the time that the party was participating in that conspiracy." (Evid. Code, 1223, subds. (a), (b).) Only a prima facie case of conspiracy must be made to satisfy foundational requirements of this exception. (People v. Jeffery (1995) 37 Cal.App.4th 209, 215.) "California courts require that the existence of the conspiracy be established by evidence independent of the proffered declaration." (People v. Herrera (2000) 83 Cal.App.4th 46, 65, fn. omitted.)

A conspiracy is an agreement to commit a crime accompanied by an overt act in furtherance of the conspiracy. (People v. Herrera, supra, 83 Cal.App.4th at p. 64.) Once the existence of the conspiracy has been established, the proponent of the hearsay statement must present evidence proving "'that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt

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act "by one or more of the parties to such agreement" in furtherance of the conspiracy.' [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 120.) The conspiracy may be shown by circumstantial evidence. One may infer the agreement from the defendants' conduct. (People v. Jeffery, supra, 37 Cal.App.4th at p. 215.)