NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

BEDSWORTH, ACTING P. J.

In 1993, Ruben Sanchez was viciously attacked by appellant and other members of the Family Mob gang. Appellant was on the lam for several years, but in 2010 he was tried and convicted of conspiracy to commit murder, attempted premeditated murder, aggravated mayhem, aggravated assault and kidnapping. On appeal, he contends there is insufficient evidence to support his conspiracy conviction, and reversal is compelled due to instructional and sentencing error. Other than to modify appellant's custody credits, we affirm the judgment in all respects.

FACTS

Sanchez was a prominent member of Family Mob rival Varrio Little Town. In March 1993, he and his fellow gang members assaulted Nelson Olshefski, who was tight with the Family Mob. A few weeks later, the Family Mob avenged the assault by beating Sanchez within an inch of his life.

The prosecution's main witness was Jay Arruda, who described himself as "an associate" of the Family Mob. On April 4, 1993, at about 1:30 a.m., he was driving home from a date when he noticed appellant and several other Family Mob members outside appellant's house. The group waved Arruda over, so he decided to stop his van in front of the house to find out what was going on.

When he did, he saw Sanchez lying in the street being beaten by the group. Arruda did not want to get involved, so he slowly began to pull away. But appellant told him to stop and warned Arruda not to "fuck with" him. Sensing that this was not a good time to cross appellant, Arruda stopped his van. He noticed Sanchez was struggling mightily to get away, but the group continued to beat him and forced him inside the van. Appellant and his companions Ricardo Aguilar, Hector Alvarez, Brandon Ortega and Ken Surdi also entered the vehicle. Appellant told Arruda to start driving, and he complied.

Appellant directed Arruda to a nearby school, but there were people in that area, so at Aguilar's direction, Arruda drove to Talbert Park. During the ride there, Arruda did not see everything that was going on inside the van. However, he noticed appellant was seated right behind him, and Sanchez was on the floor of the van, moaning. He also noticed Sanchez's feet were kicking, as though he was struggling and trying to put up some resistance. But by the time they arrived at the park, Sanchez was no longer moving, nor was he making any sounds. Arruda and Aguilar remained in the van, while the others got out and took Sanchez with them. Arruda then drove away. He did not know what became of Sanchez. After dropping off Aguilar at appellant's house, Arruda went home and cleaned the inside of this van, which was soaked with blood.

About five hours later, at 7:00 a.m., Sanchez was discovered in a ravine in Talbert Park. There were blood stains in the street abutting the area and "drag marks" leading to the ravine. Sanchez's head and body were covered with dozens of puncture wounds that were inflicted with a screwdriver that was found in the ravine. He also had ligature marks around his neck, indicating he had been strangled. Although he survived the attack, he sustained severe and permanently disabling injuries and has no memory of what happened to him.

While the other participants in the attack were arrested and prosecuted in a timely manner, appellant evaded the police for 14 years and was not apprehended until 2007. In November of that year, he was located in San Diego County, living under a false name.

I

Appellant argues there is insufficient evidence to support his conviction for conspiracy to commit murder. We disagree.

In reviewing the sufficiency of the evidence to support a criminal conviction, we review the record "`in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Stuedemann (2007) 156 Cal.App.4th 1, 5.) We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

"The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] `"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]"' [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)

"`A conviction of conspiracy requires proof 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 . . . .' [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 120.) Thus, in the context of a conspiracy to commit murder, the participants must agree to commit that offense and possess the specific intent to kill. (People v. Cortez (1998) 18 Cal.4th 1223, 1228 (Cortez).) Appellant contends there is insufficient evidence he and his fellow assailants came to an understanding to murder Sanchez, but that is not the case.

To prove a conspiracy, it is not necessary to establish the parties met and expressly agreed to commit the target offense. (People v. Vu (2006) 143 Cal.App.4th 1009, 1025.) Rather, it will suffice if the evidence directly or circumstantially shows "the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design." (Ibid.) Factors bearing on this issue include "`the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)

Here, the evidence shows appellant and his companions had a strong motive to kill Sanchez. Not only was Sanchez a prominent member of a rival gang, he had participated in an assault on Family Mob fixture Nelson Olshefski just two weeks before the attack on him. An expert on gang behavior testified gangs generally do not take assaults on their members lying down. Rather, the gang would be expected to retaliate against the assailants, in order to show it "can't be pushed around." The gang expert opined the retaliation would likely take the form of an "assault, a fight, a shooting or something [of] that nature." Thus, while a deadly response was not guaranteed in this case, it was well within the realm of reasonable probability. Suffice it to say, the jury could reasonably deduce appellant and his companions had a compelling interest in exacting harsh revenge on Sanchez.

The evidence does not reveal precisely how the Family Mob came in contact with Sanchez on the night in question. But by the time Arruda arrived at the scene, appellant's group was attacking him with a vengeance. Arruda testified that when he stopped at appellant's house, all of the people there were beating Sanchez. Thus, this clearly wasn't an isolated attack by one or two people; rather appellant and companions worked in concert to immobilize Sanchez and get him inside Arruda's van.

It also appears the beating continued at that point, because while Sanchez was kicking and moaning in the van at first, he was silent and motionless by the time the van arrived in the park. This indicates the beating was not simply done on a lark to rough Sanchez up a little, but was a sustained group effort to finish him off for good. How else could one explain the fact he had been stabbed numerous times and strangled during the course of the lengthy attack? Appellant points out Arruda did not hear a lot of discussion in the van on the way to the park. However, rather than proving the lack of an agreement to kill, this suggests appellants' group already knew what they were going to do and everything that followed was according to a preconceived plan. The old adage, "Actions speak louder than words," seems a fitting description in this case.

Moreover, after Sanchez's body went limp, appellant's group removed him from the van and dragged him to a secluded ravine in an apparent attempt to ensure he would not be found. As it turned out, that part of plan didn't work any better than the plan to kill Sanchez, but it does bolster the theory appellant's group was involved in a conspiracy to commit murder. While it is clear not every detail of the conspiracy was worked out in advance, there is substantial evidence that, by attacking Sanchez so viciously and leaving him for dead, appellant's group was carrying out a plan to end his life.

Nor are we dissuaded from this conclusion by the fact the assailants did not know when they began their attack that Arruda's van would be available for transportation. While appellant urges this as highly significant, it indicates to us only a need to change the plan from use of one of the attacker's cars to use of the serendipitous van. That does not, to our minds, undermine the conclusion that murder was intended from the outset. Therefore, we uphold appellant's conspiracy conviction.

II

Next, appellant argues the court erred in permitting the jury to find him guilty of conspiracy to commit murder based on the theory of implied malice. Although this was error, it could not have prejudiced appellant given the severity of the attack on Sanchez and in light of the jury's findings. Therefore, the error is not cause for reversal.

The law is clear. "[T]he crime of conspiracy to commit murder requires a finding of unlawful intent to kill, i.e., express malice, and that conspiracy to commit murder cannot be based on the underlying criminal objective or target offense of second degree implied malice murder." (Cortez, supra, 18 Cal.4th at pp. 1228-1229, citing People v. Swain (1996) 12 Cal.4th 593, 603.) Consistent with this principle, the trial court instructed the jury that in order to prove appellant committed conspiracy to commit murder, the People had to show he agreed and specifically intended to unlawfully kill. This conveyed the requisite element of express malice. (Ibid.)

However, the court also instructed the jurors that in deciding whether appellant conspired to commit murder, they should refer to the instructions which define that offense. Those instructions explained murder requires malice aforethought, but "[t]here are two kinds of malice aforethought; express and implied malice. Proof of either is sufficient to establish the state of mind required for murder." That is true, but as we have explained, conspiracy to commit murder requires express malice. Thus, as the Attorney General concedes, the jury should not have been told to refer to instructions on implied malice in deciding the conspiracy charge.1

Nonetheless, there are several reasons why we believe the error was harmless beyond a reasonable doubt. First, the evidence overwhelmingly established appellant and his companions specifically intended to kill Sanchez; they beat, stabbed and strangled him mercilessly during a prolonged attack that left him permanently disabled. Second, although the prosecutor mentioned implied malice in discussing the conspiracy count during closing argument, he told the jurors they did not need to consider that theory, given the strong evidence of express malice.

And finally, we know that in convicting appellant of attempted murder, the jury found he acted willfully, deliberately and with premeditation. As this finding is inconsistent with implied malice, it strongly implies the jury relied on the proper theory of express malice in finding appellant guilty of conspiracy to commit murder. (See Lara v. Ryan (9th Cir. 2006) 455 F.3d 1080, overruled on other grounds in Hedgpeth v. Pulido (2008) 555 U.S. 57 [although court instructed on both a valid theory of express malice and an invalid theory of implied malice, court was "absolutely certain" conviction rested on valid theory where jury found the defendant acted willfully, deliberately and with premeditation].)

III

Appellant also assails the court's conspiracy instructions on the basis they failed to inform the jury conspiracy to commit murder requires premeditation and deliberation. However, in Cortez, supra, 18 Cal.4th 1223, our Supreme Court determined that because the intent to conspire to commit the crime of murder is functionally equivalent to the mental state required for premeditated murder, instructions on premeditation need not be given in connection with a charge of conspiracy to commit murder. (Id. at p. 1240, disapproving People v. Horn (1974) 12 Cal.3d 290.)

Appellant argues that because his crimes occurred in 1993, five years before Cortez was decided, it would violate ex post facto principles to apply Cortez to his case. However, in Cortez, the Supreme Court upheld the defendant's conviction for conspiracy to commit murder, even though his jury had not been instructed that crime requires premeditation and deliberation. (Cortez, supra, 18 Cal.4th at p. 1240.) This suggests the absence of such instructions in appellant's case is not cause for reversal.

In any event, as we have explained above, the jury found that in attempting to murder Sanchez, appellant acted willfully, deliberately and with premeditation. This finding renders harmless any error that may have occurred by virtue of the trial court's failure to instruct the jury that conspiracy to commit murder requires premeditation. (People v. Kobrin (1995) 11 Cal.4th 416, 428, fn. 8 [instructional error is harmless beyond a reasonable doubt if the jury resolves the factual question posed by omitted instruction adversely to the defendant under other properly given instructions].)

IV

That brings us to the sentencing issues. In addition to imposing consecutive life terms on the conspiracy and aggravated mayhem counts, the court sentenced appellant to eight years for kidnapping and three years for aggravated assault. Appellant contends the court should have stayed his sentences for kidnapping and assault under Penal Code section 654, but we disagree.

Penal Code section 654, subdivision (a) provides, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Although this provision "speaks in terms of an `act or omission,' it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.]" (People v. Meeks (2004) 123 Cal.App.4th 695, 704.) "`Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of [Penal Code] section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Britt (2004) 32 Cal.4th 944, 951-952.)

Appellant argues his sentence for kidnapping should be stayed because the only reason he and his companions kidnapped Sanchez in the van was to facilitate the other crimes. However, as we explained in Surdi's case, separate punishment for kidnapping was appropriate because apart from kidnapping Sanchez, appellant's group committed multiple acts of violence against Sanchez over an extended period of time. (People v. Surdi (1995) 35 Cal.App.4th 685.) Granted, the evidence concerning how Sanchez was beaten was not as detailed here as it was in Surdi's case. However, the facts indicate appellant's group beat Sanchez both before Arruda arrived on the scene and after they got Sanchez into the van and traveled around to different locations. Because the evidence shows appellant assisted in committing multiple acts of violence over an extended period of time during which he had ample time to reflect on his actions, he was properly sentenced on the kidnapping count. (Id. at pp. 688-690.)

The same reasoning applies to appellant's sentence for aggravated assault. In the context of that offense, Penal Code section 654 does not apply to situations like the one presented here, where multiple violent acts are committed over a period during which time for reflection is possible. (People v. Trotter (1992) 7 Cal.App.4th 363, 367.) We thus have no occasion to disturb appellant's sentence.2

V

Lastly, appellant contends, and the Attorney General concedes, the trial court erred in limiting appellant's conduct credit to 15 percent of his actual custody days pursuant to Penal Code section 2933.1. As that section did not become effective until 1994, one year after appellant's crime occurred, it is inapt in this case. (Pen. Code, § 2933.1, subd. (d); Cf. People v. Hutchins (2001) 90 Cal.App.4th 1308, 1317.) Therefore, we will modify appellant's credits accordingly.

DISPOSITION

The judgment is amended to award appellant 510 days of presentence conduct credit, based on 1,023 days of actual custody, for a total award of 1,533 days. In all other respects, the judgment is affirmed.

O'LEARY, J. and MOORE, J., concurs.