DALSIMER, J. I respectfully dissent.
Traditionally, waiver has been defined as “.. . an intentional relinquishment or abandonment of a known right or privilege.” (Johnson v. Zerbst (1938) 304 U.S. 458, 464 [82 L.Ed. 1461, 1466, 58 S.Ct. 1019, 146 A.L.R. 357].) The right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and by article I, section 15 of the California Constitution is a fundamental right. “‘It has been pointed out that “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights . . ..’ [Citation.]” (People v. Douglas (1964) 61 Cal.2d 430, 434-435 [38 Cal.Rptr. 884, 392 P.2d 964].) In discussing whether a defendant had waived his right to counsel, the Supreme Court stated that : ‘a finding of waiver is not lightly to be made.’ [Citation.]” (Id., at p. 434.) The Douglas court explained, “Not only must the waiver be unqualified, but it may be made only by a defendant who has been apprised of his rights and who has ‘an intelligent conception of the consequences of his act.’ [Citation.]” (Id., at p. 435.)
The majority relies on United States v. Garcia (5th Cir. 1975) 517 F.2d 272 in its evaluation of whether Noday made an effective waiver. In that case, the court of appeals held that the trial court “... should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest,” and “[m]ost significantly, the court should seek to elicit a [525]narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney’s possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections. [Citation.]” (Id., at p. 278, italics provided.)
In the present case, the waiver proceedings consisted essentially of monosyllabic responses to the judges’ questions. Those responses were wholly insufficient to indicate that Noday understood even the nature of the problem, much less the implications thereof. Indeed, there was no effort to ascertain if Noday comprehended the meaning of the term “conflict of interest.”
Defendant Noday was insufficiently apprised of his rights because at neither waiver hearing was the term “conflict of interest” adequately explained. We simply cannot assume an understanding by this or any layperson of such sophisticated legal terminology. The explanations by both judges suffered from the employment by them of the very words being explained. “A definition should be clearer than the term being defined: its terms must bé better known than the term in question, and without obscurity or Ambiguity; a definition should thus avoid repeating the term being defined. ‘Truth is the quality of being true’ is not a useful definition.” (Lazarus et al., Modern English (1971) p. 87, emphasis in original.) Thus, the explanation of the meaning of “conflict of interest,” on each occasion recited by the majority, failed to inform defendant Noday of the nature of the fundamental constitutional right he was being asked to waive. Further, defendant Noday was never informed that waiver of conflict-free counsel would preclude him from raising the issue of the consequences of ineffective assistance of counsel resulting from the joint representation, either on appeal or by collateral attack on the judgment. Since Noday was inadequately apprised of the right to separate counsel and the consequences of any waiver of that right, his waiver should be held to be ineffective. (People v. Douglas, supra, 61 Cal.2d 430, 435.)
Under the Rules of Professional Conduct of the State Bar, an attorney may not represent conflicting interests without the written, informed consent of all concerned parties (rule 5-102(B), Rules Prof. Conduct of State Bar); such consent is essential in all cases where there is a possibility that confidential information obtained from one client may relate to the representation of another client whose interests con[526]flict with that client from whom confidential information has been obtained. (Rule 4-101, Rules Prof. Conduct of State Bar.)
In Holloway v. Arkansas (1978) 435 U.S. 475 [55 L.Ed.2d 426, 98 S.Ct. 1173], the United States Supreme Court observed, “Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. For example, in this case it may well have precluded defense counsel for Campbell from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favorable sentencing recommendation would be acceptable. Generally speaking, a conflict may also prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another.... The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters.” (Id., at pp. 489-490 [55 L.Ed.2d at p. 438].)
The majority asserts that there is no Pope error (see People v. Pope (1979) 23 Cal.3d 412 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1]) because defendant doesn’t set forth what the exculpatory testimony of Noday and Smart would have been. In my view, Pope error does exist because due to the inadequate advice of counsel regarding the existence of, or potential for, a conflict of interest, defendant was induced to waive a fundamental constitutional right—the right to conflict-free counsel. Under Cuyler v. Sullivan (1980) 446 U.S. 335 [64 L.Ed.2d 333, 100 S.Ct. 1708], however, Pope is not, I believe, controlling.
In Cuyler v. Sullivan, supra, 446 U.S. 335, 348 [64 L.Ed.2d 333, 346], the United States Supreme Court held that if a defendant does not object at trial to multiple representation, on a petition for a writ of habeas corpus the defendant must demonstrate that an actual conflict of interest occurred which adversely affected his trial lawyer’s performance. Under Cuyler v. Sullivan, once a petitioner has shown that a conflict of interest adversely affected the adequacy of his trial lawyer’s performance, it is unnecessary that he demonstrate prejudice. {Id., at pp. 349-350 [64 L.Ed.2d at p. 348].) The United States Supreme Court reaffirmed in Cuyler that “... unconstitutional multiple representation is never harmless error.” (Id., at p. 349 [64 L.Ed.2d at p. 347], italics added.)
[527]In the present case, it is clear that an actual conflict of interest adversely affected the performance of Noday’s trial lawyer. The refusal of Noday’s attorney to permit defendant Noday to testify in his own defense, although he had a fundamental right to so testify (People v. Robles (1970) 2 Cal.3d 205, 215 [85 Cal.Rptr. 166, 466 P.2d 710]), was the result of an actual conflict of interest. This is apparent from Gillis’ statement in his declaration that he convinced Noday not to testify because he was afraid that defendant Noday would incriminate his other client, Maldonado. After Gillis refused to permit Noday to testify and elected not to call Smart as a witness because of the representation by Smart’s attorney that his client would decline to testify based on the Fifth Amendment, he rested without the presentation of a defense for Noday. Attorney Gillis’ omissions are illustrative of the problem noted in the Holloway court’s observation that “[j]oint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.” (Holloway v. Arkansas, supra, 435 U.S. 475, 489-490 [55 L.Ed.2d 426, 438].)
The majority holds that defendant Noday is precluded from claiming he was ineffectively represented “... except, possibly, with respect to actual conflict or evidence of ineffective assistance of counsel which was unrelated to the fact of multiple representation.” Majority opn., ante, p. 520.) Not only is this assertion unsupported by authority, but, in my opinion, it begs the question. The record discloses that defendant Noday was told by his attorney, Gillis, that there was no conflict. This, in and of itself, was ineffective assistance of counsel. Since at the time of the second waiver proceeding, Attorney Gillis still had not discussed with codefendant Maldonado what facts she knew or whether she would testify, and he had not reviewed discovery made available by the district attorney’s office which indicated that Noday had spoken to a government agent about Maldonado, it was impossible for him adequately to assess whether a conflict of interest would develop that would preclude adequate representation of both Noday and codefendant Maldonado at trial. He was, therefore, unable ethically to advise his clients to continue with the joint representation and to waive their right to separate counsel.
A defendant is certainly entitled to the effective assistance of counsel in deciding whether to waive the right to independent counsel. Such an election occurs at a most critical stage of a criminal proceeding. A defendant who purportedly waived his right to conflict-free counsel cannot thereby be precluded from contending that he lacked the effective assis[528]tance of counsel at the time he needed that counsel perhaps the most: when making the decision to waive that fundamental constitutional right. It seems clear to me that this lack of effective or even honest assistance of counsel in making this crucial decision would vitiate the waiver even had it been effectively made in the first instance.
The majority states that this ineffective assistance of counsel was cured by the court’s interrogation of the defendant at the two waiver hearings. At the first waiver hearing, there was no inquiry whether the conflict of interest problem had been discussed with counsel. At the second waiver hearing, when Judge Parker asked Noday and Maldonado whether they had talked with Attorney Gillis about the possibility of a conflict of interest, Maldonado replied, “I have not talked with him at all, except what we talked about out in the corridor,” and Noday was silent. The court then replied, “Well, Mr. Gillis is of the opinion that there is no conflict of interest between the two of you, and he has so stated.” I find it difficult to conceive how such a statement by the court could cure counsel’s misrepresentation. The court’s statement served rather to reinforce the misapprehension of defendant Noday concerning the existence of a conflict.
Most of the problems arising out of joint representation could be avoided by the simple expedient of forbidding joint representation of defendants in felony matters, or, in the alternative, requiring severance of the trials of jointly represented defendants. I strongly urge that such a remedial rule be established by the Supreme Court or the Legislature.
I would grant the writ.
A petition for a rehearing was denied December 7, 1981, and the opinion was modified to read as printed above. Dalsimer, J., was of the opinion that-the petition should be granted. Petitioner’s application for a hearing by the Supreme Court was denied January 20, 1982. Bird, C. J., was of the opinion that the application should be granted.
APPENDIX A
(Not to Be Published)
[Crim. No. 30387. Second Dist., Div. One. Feb. 17, 1978.]
THE PEOPLE, Plaintiff and Respondent, v. RONALD RALPH NODAY, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Parker, Judge. Affirmed.
[529]Stephen S. Gillis and John DeNora for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Frederick R. Millar, Jr., and Alexander W. Kirkpatrick, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
HANSON, J.—
INTRODUCTION
Ronald Ralph Noday was found guilty, pursuant to a jury verdict, of conspiracy to commit grand theft and conspiracies to cheat and defraud (Pen. Code, §§ 182, subd. 1, 487, subd. 1, 182, subd. 4); conspiracy to commit murder (Pen. Code, §§ 182, subd. 1, 187); attempted grand theft (Pen. Code, §§ 664/487, subd. 1) and two counts of grand theft (Pen. Code, § 182, subd. 1). Defendant appeals only his conviction for conspiracy to commit murder.
The Facts1
In January 1976 defendant Noday was approached by Richard Allen for help in obtaining the financing for Allen’s proposed acquisition of a car dealership. Defendant Noday told Allen that he was currently negotiating for the purchase of a bank in San Diego and that he would be able to make Allen a loan when that transaction was complete. Meanwhile, defendant Noday said the financing for the bank purchased was being held up, and he needed cash to be placed in one of his business accounts to satisfy Security Pacific Bank’s loan requirements. Noday stated that he needed between $50,000 and $100,000 in order to complete the bank acquisition.
Allen told defendant Noday that he knew of a possible source for the money. Allen thereafter contacted Harold Porter who owned a business in Lancaster which he had recently sold for $100,000. Porter agreed to permit Allen to use the money as collateral for a business loan only if its safe return could be guaranteed. Noday had arranged that the money should be held at Reliance Escrow Company which he was purchasing. Allen was able to satisfy Porter by investigating and learning from informed sources that the escrow company enjoyed an excellent reputation for honesty. Accordingly, Porter and Allen on January 5, 1976, met with codefendant Steve Jones, an executive in the escrow company and an associate of Noday’s, and agreed upon terms to open an escrow. Porter was to have complete control over the escrow, 10 percent interest in advance, and receive the return of his money in 90 days. Porter gave Jones $100,000 in the form of a cashier’s check and was given a receipt and a copy of the escrow instructions. Jones told Porter that the money would be deposited in an escrow account in Security Pacific National Bank and he handed Porter $2,500 in cash representing advance interest.
On January 12, 1976, defendant Noday telephoned Porter to inform him that a stolen check had been deposited in Reliance Escrow Company’s account and that “they were going to be investigated.” Defendant Noday requested that Porter draw the money out of the escrow account and give it to him taking a personal note, but Porter refused. After speaking with investigators from Security Pacific National Bank, Porter called Jones and told him that he wished to withdraw his funds from the escrow ac[530]count, but Jones said that Reliance had loaned these funds to defendant Noday. Porter thereupon demanded his money back from defendant Noday who said that Porter could have it “at any time.” Porter demanded the return of the money that afternoon. Although defendant Noday verbally agreed to this demand, he failed to return the funds.
On January 13, 1976, defendant Noday told Porter that he (defendant) would return the money the next day in San Diego at the International Plaza Hotel. Porter and Allen went to San Diego, went to the hotel coffee shop at 10 a.m. and waited but defendant Noday did not appear. Finally, Allen received a telephone call at 1 p.m. from Bev. Smart. Mr. Smart informed Allen that defendant Noday was in Chicago trying to get money to buy the bank but he would return that night. Mr. Smart offered to help Porter and Allen obtain the return of the $100,000 but their attempt was unsuccessful.
On January 18, 1976, defendant Noday and Mr. Smart met with Porter and defendant again offered to give Porter a personal note for the money but Porter refused. Mr. Smart then assured Porter that in any event the matter would be “cleared up” within 72 hours. Later that night Porter received a telephone call from a man who identified himself as “Charlie Summers,” said he was aware of Porter’s dealings with defendant Noday and asked Porter to meet him at the Delta Airlines terminal at Los Angeles Airport. Porter and Allen went to the Delta terminal and waited two hours but Summers did not arrive.
Porter heard from Summers on four or five other occasions; Summers offered to help Porter retrieve his money from defendant Noday for a fee of $6,000, which Porter declined. Porter never received the return of any part of his $100,000.
Meanwhile, on January 9, 1976, George Pelham had entered into an agreement with defendant Noday to kill Harold Porter.2 On that day Pelham met defendant Noday at the Holiday Inn in Long Beach. Defendant Noday explained to Pelham that he had taken $ 100,000 from Porter and if Porter were not killed, it would create legal problems for defendant. Defendant Noday offered Pelham $10,000 for the murder, plus $1,000 for arranging the “contract,” and $500 for expenses. Defendant Noday wanted the murder to be accomplished by Sunday, January 11, 1976, but Pelham told defendant that the murder could not be carried out so promptly.
Subsequently, Pelham telephoned defendant Noday and told him that a friend had arrived to assist in the murder. Pelham asked defendant Noday to provide a gun, and defendant said: “1 think it’s okay about 45 till,” from which Pelham inferred that he would provide a .45 caliber pistol. That evening, Pelham and Bobby Haber met with defendant Noday and Jones. After some discussion defendant gave Pelham $10,000 in $100 bills but said that he was unable to locate a firearm. Pelham said he would secure the gun. Defendant then told Pelham that he had arranged for Porter to be at the International Plaza Hotel in San Diego the following morning at 10 a.m.
Pelham and Haber, unarmed, traveled to San Diego and stayed overnight at a hotel near the International. The following morning, the two ate breakfast at the International Plaza Hotel’s coffee shop where they saw Porter whom they identified from the description given Pelham by defendant Noday. They overheard Porter ask the desk to page him if there were any messages for him from defendant Noday.
Pelham left the coffee shop with Haber and they discussed the best way to get the defendant’s $10,000 without hurting anyone. Pelham called defendant Noday around 11 a.m. and told him that the timing and layout for the killing had been wrong. Pelham informed defendant that he would return $7,000 but that he had given $3,000 to his friend for expenses. Defendant told Pelham that if they wished to earn the other $7,000 they could “string out" the situation for a few days.
[531]Two days later Pelham called defendant and told him that the murder would be accomplished. In fact, it had been Pelham who had earlier telephoned Porter using the name “Charlie Summers,” and arranged for Porter to meet him at the Delta Airlines terminal in Los Angeles. Pelham testified that this was done so that Porter would not be home if defendant tried to verify whether Porter was still alive. Pelham then reported the homicide to defendant Noday who met with and gave him $7,000 in addition to the money he had already received or a total of $ 11,500.
Pelham fled Los Angeles to Las Vegas where he later learned that defendant Noday was angry to find Porter still alive and had placed a “contract” on him (Pelham) with two other men. Pelham went to New Orleans where he stayed for about a month. Pelham spoke with both defendant Noday and Jones on the telephone while in New Orleans and they asked him to return the money, but Pelham refused. While in New Orleans, Pelham, again using the name “Charlie Summers,” on several occasions called Porter and offered for a fee to help secure the return of Porter’s money from defendant Noday. Porter would not agree to this proposition.
In February 1976 Pelham returned from New Orleans to “make peace” with defendant Noday and Jones. In late March Pelham met with defendant because there were no “hard feelings.” Prior to that meeting Pelham had talked with the FBI about the case, and consented to allow the FBI to tape telephone conversations between himself and defendant Noday. Calls were recorded on April 6, 7, 8, and 9, 1976. During a telephone conversation on April 8, 1976, defendant Noday asked Pelham to murder Dave Powers and Mark Coffman, government witnesses in a federal prosecution against defendant. Defendant Noday offered to pay Pelham $50,000 for the two murders less the $ 11,500 that he had already received.
Thereafter defendant Noday was arrested at the American Airlines terminal at Los Angeles Airport when he gave Pelham $38,500 in $100 bills, wrapped in newspaper. Defendant Noday did not testify at his trial and no defense was offered as to the charge of conspiracy to commit murder.
ISSUES
Defendant Noday contends that: (1) the trial court erred in not instructing the jury that prosecution witness George Pelham was an accomplice as a matter of law; (2) Pelham’s uncorroborated statements were improperly admitted into evidence; (3) the transcript and taped conversation between defendant and Pelham were improperly admitted into evidence; (4) hearsay declarations of an alleged coconspirator (Jones) were improperly admitted into evidence; and (5) the admissible evidence was insufficient to establish the corpus delicti of a conspiracy to commit murder.
DISCUSSION
I
Defendant first contends that the trial court erred in not instructing the jury sua sponte that principal prosecution witness Pelham was an accomplice as a matter of law.
California Penal Code section 1111 defines an accomplice “as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” Our determination as to whether Pelham.was in fact an accomplice focuses on the substantive crime as to which defendant Noday appeals his conviction; that is, conspiracy to commit murder. Defendant Noday contends Pelham became an accomplice as a matter of law by accepting the money which rendered him liable for prosecution for the same offense.
Criminal conspiracy is a combination of two or more people acting in concert with an unlawful purpose, accompanied by an overt activity in furtherance of the objects of the agreement. (People v. Frankfort (1952) 114 Cal.App.2d 680, 688 [251 P.2d 401]; [532]Otash v. Bureau of Private Investigators (1964) 230 Cal.App.2d 568, 573 [41 Cal.Rptr. 263]; cf. Perkins, Criminal Law (1969) p. 614.) Furthermore, criminal conspiracy is a specific intent crime. The specific intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal.Rptr. 516, 524 P.2d 1300].)
The evidence of the case at bench is less than clear as to whether Pelham had at the time he entered the original agreement with defendant Noday formed the specific intent necessary to find him guilty of conspiracy to commit murder. While there is circumstantial evidence to suggest that at the time of Pelham’s agreement with Noday for the murder of Porter, Pelham may have intended to commit the murder, it may also be inferred that Pelham never actually intended to kill Porter but to defraud Noday. Pelham testified that he discussed with Haber the best way to get Noday’s money for the contract “without hurting anyone.” Moreover, when asked why he took the money from Noday, Pelham responded that: “Nobody else makes any money but him. And I figured he had it coming.” It may be inferred that these thoughts were in Pelham’s mind when he verbally accepted Noday’s offer.
An instruction that a witness is an accomplice as a matter of law is required only if undisputed evidence establishes the complicity of the witness. (People v. Duncan (1960) 53 Cal.2d 803, 816 [3 Cal.Rptr. 351, 350 P.2d 103]; People v. Davis (1954) 43 Cal.2d 661, 672 [276 P.2d 801].) To fail to give such an instruction where the undisputed evidence shows that the witness entered into the conspiracy constitutes error. (People v. Bowman (1966) 240 Cal.App.2d 358, 288 [49 Cal.Rptr. 772].) Conversely, where the evidence is conflicting, it is for the trial court to instruct the jury that the witness is an accomplice as a matter of law since that would usurp the jury’s function of determining the factual issue of whether the witness entered the conspiracy. (People v. Manson (1977) 71 Cal.App.3d 1, 35 [139 Cal.Rptr. 275].) Where there is conflicting evidence as to whether a witness is an accomplice, the issue must be submitted to the jury. (People v. Gordon (1973) 10 Cal.3d 460, 467 [110 Cal.Rptr. 906, 516 P.2d 298]; People v. Manson (1977) supra, 71 Cal.App.3d 1.) Linder the circumstances of this case, it was proper for the trial court to instruct the jury in accomplice testimony3 and leave the determination of the witness’ complicity up to them. Hence, defendant’s contention that the trial court abused its discretion in not instructing the jury that Pelham was an accomplice as a matter of law is without merit.
II
Defendant’s second contention is that the statements of Pelham as an alleged accomplice were improperly admitted into evidence without corroboration. (Pen. Code, § 1111.) This contention is predicated on defendant’s assumption that Pelham was an accomplice as a matter of law. Since we have determined that issue adversely to defendant Noday, his testimony was admissible and it became the function of the jury to determine its weight and credibility. In any event the most significant aspects of his testimony were corroborated. Porter testified that defendant said he had “borrowed” the [533]$100,000 placed in escrow; Pelham stated defendant told him he had swindled Porter’s money; and Louise Jones testified that she became aware of the swindle because the escrow company’s books were manipulated. Pelham’s testimony about going to the hotel in San Diego to find Porter and later calling him as “Charlie Summers” were corroborated by Porter. The payment of the $38,500 from Noday to Pelham at the airport was corroborated by the agent who recovered that money. Moreover, the taped conversation evidenced the offer made by defendant Noday to pay Pelham for the murder. The declarations of coconspirator Jones were also admissible to corroborate defendant’s offer to pay for murder. (People v. Manson, supra, p. 36.) “The corroborating evidence must do more than raise a conjecture or suspicion of guilt, but it need not be direct, nor extend to every detail of the accomplice’s testimony or to every element of the crime. It may be circumstantial, and is sufficient, even though slight and entitled to little weight when standing alone, if it tends in some degree to implicate the defendant in such a way as reasonably may satisfy the trier of fact that the accomplice is telling the truth.” (People v. Random (1973) 32 Cal.App.3d 164, 173 [108 Cal.Rptr. 326].) Hence, even if the jury found Pelham to be an accomplice, sufficient corroboration sustains the judgment.
III
Defendant’s third contention is that a tape recording and transcript of a telephone conversation between defendant and Pelham recorded by the FBI during the week of April 6-9, 1976, were improperly admitted into evidence.
Defendant Noday bases this contention principally on the fact that a taped recording is a writing (Evid. Code, § 250) which requires a proper foundation. (Evid. Code, §§ 1400, 1401.) Defendant alleges that as an accomplice, Pelham’s testimony could not have properly been used to lay the foundation. Although Pelham was not an accomplice as a matter of law, his testimpny would be admissible to lay the foundation for the tape recording even if he was found by the jury to be an accomplice. (See, e.g., People v. Patton (1977) 63 Cal.App.3d 211 [133 Cal.Rptr. 533]; People v. Bowley (1963) 59 Cal.2d 855 [31 Cal.Rptr. 471, 382 P.2d 591, 96 A.L.R.2d 1178].)
Defendant further argues that the tape was inadmissible because the recorded statements constituted hearsay.4 However, defendant’s hearsay admissions of guilt, which were his own statements and not supplied by another witness or coconspirator, constitute a recognized exception to the hearsay rule. (Evid. Code, § 1220.) Defendant claims that section 1223 of the Evidence Code, dealing with admissions of coconspirator, limits Evidence Code section 1220 and that admissions of a defendant constitute competent evidence only when such admissions are in furtherance of a conspiracy. The effect would be that no postconspiratorial admission of a defendant could be considered. This interpretation would prevent the purpose of Evidence Code section 1220 which is to allow into evidence any admission of complicity by a defendant. In any event, defendant Noday’s own admissions were competent evidence even if the conspiracy had ended prior to the time they were made. (See People v. Leach (1975) 15 Cal.3d 419, 445 [124 Cal.Rptr. 752, 541 P.2d 296].)
IV
Defendant’s fourth contention is that hearsay declarations of an alleged coconspirator, Steven Jones, were improperly admitted into evidence.
Defendant Noday objects to the admission into evidence of the testimony of David Powers who stated that in March, 1976, Steven Jones told him that “[w]e put the contract out on Harold Porter.” Defendant argues that the admission was not within the [534]parameter of the coconspirator admissions exception to the hearsay rule. (Evid. Code, § 1223.)
Three preliminary facts must be established before the declaration of a coconspirator is admissible: (1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy; and (3) that the declaration was in furtherance of the objective of the conspiracy. (Evid. Code, § 1223, People v. Leach, supra, pp. 419, 430-431, fn. 10.)
Defendant points out that the indictment charged him with the Harold Porter murder conspiracy between January 1, 1976 and February 28, 1976. Defendant contends that since the conversation between Powers and Jones took place in March, 1976, its admission into evidence was not proper because the criminal activity terminated by March and consequently the conversation was not in its furtherance.
However, the reasonable inference from the evidence is that there existed an underlying conspiracy to do away with those who could implicate defendant Noday and his co-conspirators for their continuing schemes. This statement was made during the pendancy and in the furtherance of that conspiracy which was of longer duration. That conspiracy continued because defendant Noday, after learning Porter was still alive, hired two other men to kill his former coconspirator, Pelham. David Powers, who was pleased when these arrangements were made, supplied corroborating testimony as to this fact.
Assuming that such an underlying conspiracy existed, the question then is whether the statement made by Jones falls within the coconspirators’ exception to the hearsay rule (Evid. Code, § 1223). Since it appears Jones was participating in the conspiracy at the time of the declaration, the first requirement is met, and the second requirement of independent evidence of defendant’s complicity at the time of the declaration is met for the reason above stated. This third requirement that the statement be in furtherance of the conspiracy can be met by the content of the declaration. (People v. Leach, supra, 15 Cal.3d 419.)
The testimony relative to the conversation Jones engaged in with David Powers suggests that a continuing conspiracy to kill those who could supply evidence against them or expose their criminal activities existed. Defendant Noday, Jones, Ron Rossie and an unidentified person were present when Rossie told defendant that people were angry at him (Noday) because he had put out a contract to kill someone. Defendant replied that he had given money to Pelham for this purpose but he had decided not to do it and “split” with the money. Rossie, or the person with him, then offered to give Noday “two jobs for the price of one” from which it may be inferred that he would kill both Porter and Pelham. Defendant agreed to think about it. Then in late February or early March, 1976, Powers had a conversation with Jones at the request of the FBI in an attempt to ascertain the name of the person he and Noday had attempted to have killed. Jones told Powers they had put the contract on Porter.
The argument of defendant is that the conspiracy ended when Pelham absconded with the money. However, there was substantial evidence of a continuing conspiracy which supported the admission of Powers’ testimony as to Jones’ statements. “It has long been the law in this state that a conspirator’s statements are admissible against his coconspirator only when made during the conspiracy and in furtherance thereof. [Citations], The conspiracy usually comes to an end when the substantive crime for which the coconspirators are being tried is either attained or defeated. [Citations.] It is for the trier of fact—considering the unique circumstances and the nature and purpose of the conspiracy of each case—to determine precisely when the conspiracy has ended. [Citations.] Particular circumstances may well disclose a situation where the conspiracy will be deemed to have extended beyond the substantive crime to activities [535]contemplated and undertaken by the conspirators in pursuance of the objectives of the conspiracy. [Citations.]” (People v. Saling (1972) 7 Cal.3d 844, 852 [103 Cal.Rptr. 698, 500 P.2d 610].) There was no abuse of discretion by the trial court in admitting this testimony.
V
Defendant’s fifth contention is that there was insufficient admissible evidence to prove the corpus delicti of conspiracy. The corpus delicti of a crime must be established prior to admission into evidence of extrajudicial statements or admissions of a defendant. (People v. Grimes (1949) 91 Cal.App.2d 629 [20 P.2d 416].)
Defendant predicates his attack on the assumption that if Pelham were found to be an accomplice as a matter of law, his testimony could not have established the corpus delicti of the crime without corroboration. This assumption is erroneous: an accomplice’s testimony to establish the corpus delicti need not be corroborated. (People v. Scofield (1971) 17 Cal.App.3d 1018 [95 Cal.Rptr. 405].) Only the defendant’s connection with the crime requires corroboration. (People v. Buono (1961) 191 Cal.App.2d 203 [12 Cal.Rptr. 604].) Pelham’s testimony clearly established a conspiracy and he was not an accomplice as a matter of law; hence; the trial court committed no abuse of discretion in admitting his testimony. Therefore, the defendant’s contention as to the insufficiency of the corpus delicti of the crime conspiracy fails.
DISPOSITION
The judgment appealed from is affirmed.
Lillie, Acting P. J., and Thompson, J., concurred.
Defendant appeals only as to his conviction of conspiracracty to commit murder and consequently the statement of the facts does not include reference to the evidence adduced on the other counts except insofar as relevant to the conspiracy to commit murder. William Beverly Smart and Steven Duane Jones were charged as codefendants as to certain counts but trials were severed. Consuelo Maldonado was charged as a co-defendant on charges of conspiracy and grand theft only and was acquitted.
Pelham testified at trial under a grant of immunity from prosecution.
The jury was instructed to accomplice testimony by the trial court using California Jury Instructions Criminal (CALJIC) No. 3.10 (accomplice-defined), CALJIC No. 3.11 (testimony of accomplice must be corroborated), CALJIC No. 3.12 (sufficiency of evidence to corroborate an accomplice), CALJIC No. 3.13 (one accomplice may not corroborate another), CALJIC No. 3.14 (criminal intent necessary to make one an accomplice), CALJIC No. 3.18 (testimony of accomplice to be viewed with distrust), and CALJIC No. 3.19 (burden to prove corroborating witness in an accomplice).
These instructions properly framed the issue for the jury and allowed for inferences . either way as to Pelham’s testimony.
Only a brief portion of one tape recording was played for the jury. The balance of the tape recordings were excluded from evidence.