Filed 7/14/14 P. v. Lewis CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B241236

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA117431)
         v.

VINCE E. LEWIS et al.,

         Defendants and Appellants.


         APPEALS from judgments of the Superior Court of Los Angeles County. Ricardo
R. Ocampo, Judge. Judgments affirmed.
         Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and
Appellant Vince Lewis.
         Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and
Appellant Ariana Coronel.
         Stephen Temko, under appointment by the Court of Appeal, for Defendant and
Appellant Mirian Herrera.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Nima
Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
                               ____________________________________
       A jury convicted defendants Herrera, Lewis and Coronel of first degree murder
and found that Herrera personally discharged a firearm in its commission. The court
sentenced each defendant to 25 years to life for the murder and sentenced Herrera to a
consecutive 25 years to life for the personal firearm use. We affirm the judgments.
                        FACTS AND PROCEEDINGS BELOW
       The victim, Darsy Noriega (“Mickey”), and all three defendants, Vince Lewis
(“Shady”), Ariana Coronel (“Temper”) and Mirian Herrera (“Loca”) are members of the
Easy Riders gang. The Easy Riders are enemies of the Dead End Harpees.
       On January 31, 2011, Coronel sent a text message to an unidentified recipient that
stated in relevant part: “[W]e [are] kicking [Mickey] out the hood cuz [S]ilent1 told me a
HPS2 in jail said she was fucking one of [th]em.”
       On February 2, 2011, Coronel sent several text messages to several unidentified
recipients. The first message stated: “Homies from [that] ERS3 gang mando hood
meeting tonight at 10 pm. Shady is calling it.” The second message, seven minutes later,
read: “Mickey getting the boot.” The third message stated: “We’re gonna take Mickey
outta the hood[.] Don’t say anything[.] We don’t want to scare her.” Coronel’s next
message read: “At [10] pm Mickey is getting the boot[.] [T]hey [are] waiting for me to
get out of work to do this.” Coronel’s final message before the meeting stated: “Mickey
is getting the boot out the hood.”
       Although the recipients of Coronel’s messages were not identified at trial, the jury
could infer from the contents of the messages that the recipients were other gang
members or persons interested in the gang’s activities.
       Amy Aleman was a defendant in the case until she negotiated a plea to voluntary
manslaughter and a four-year sentence. She testified for the prosecution at the trial of
Lewis, Herrera and Coronel.

1
       Presumably a gang moniker.
2
       Presumably Harpees.
3
       Presumably Easy Riders.
                                             2
      Aleman told the jury that on the night of the murder she attended a meeting of the
Easy Riders. Lewis and three female members, Herrera, Coronel and Noriega were
present along with other gang members. She knew that Noriega was going to receive a
“violation” which she described as “a physical beating” and testified that “people always
walk away from violations.”
      According to Aleman, at some point during the meeting Lewis told her, Noriega,
Herrera and Coronel to come with him to buy beer. The group went to a liquor store
where Lewis and Coronel bought the beer. After the group left the store, Herrera, who
was eight months pregnant, said she needed to urinate. Lewis did not head back to the
house where the meeting was taking place, which was only a few minutes away. Instead
he drove around looking for a private spot and eventually parked on a street next to an
alley. Herrera, Aleman and Noriega got out of the car. Coronel and Lewis remained
inside. The three women walked down the alley. Aleman was in the lead. Herrera and
Noriega were walking behind her.
      As Aleman was walking down the alley she heard gun shots behind her. She
turned around and saw Herrera shooting Noriega. Aleman estimated there were “a lot” of
shots, “probably like seven.” She ran back down the alley past Herrera and Noriega’s
body and got into Lewis’s car. Herrera also ran to the car and got in. Lewis drove back
to the place of the meeting. Upon their return Herrera told Aleman, “It had to be done.
Mickey was in other hoods.”
      One of the Easy Riders drove Aleman home after the meeting. He told Aleman
to get rid of her clothes because they might contain gun powder residue. Aleman put her
clothes in a plastic bag and either Lewis or Coronel stuffed them down a storm drain.
The police recovered the clothes based on information Aleman supplied them with.
      Responding to a call from a neighbor, the police found Noriega’s body in the alley
shortly after the shooting. Noriega died from multiple gun shot wounds. The pathologist
who examined her body estimated she was hit by approximately 10 bullets which struck



                                            3
her throat, left abdomen, left arm and mid-lower back. A forensic examination found that
all the bullets were fired from the same semi-automatic handgun.
       The day after the murder, Coronel sent text messages to a person identified as
Adriana describing Noriega’s murder. Coronel stated in part: “Hey, Mickey is dead. . . .
Like we took her last breath dead. . . . Yeah she[’]s dead[.] [W]e didn’t rush her or
nothing[.] [W]e just gave it to her. . . . The potbellied/pregnant one [Herrera] and the
other who is barely pregnant [Aleman] got out with the RIP to supposedly take a piss in
the alleyway near 111th St. . . . I stayed in the car with [Lewis] because obviously
me and the RIP . . . don’t get along so the RIP would have smelt it. . . . And the
potbellied/pregnant girl go[t] the nine and shot her all over her body. Then from there
they got into the car and we got the fuck out of there. . . . I wanted to do it but it w[as]
gonna b[e] to[o] ob[v]ious [and] she felt comfortable with both of [th]em so it w[as]
[c]ool.”
       Coronel had another text conversation with an unknown person later that day.
The conversation went as follows, beginning with the unknown texter. “So how did it
go yesterday?” “Good. . . . She[’]s gone.” “But did you guys hit her?” “Yup[.]
[S]he[’]s dead.”
       In some of her text messages after the murder, Coronel told the recipients, “Erase
the t[e]xt,” “[e]rase the text pl[ease]” and “[j]ust don’t say anything.”
       The following month police arrested an Easy Rider gang member, Gilbert
Mendoza, on a probation violation. Mendoza told the police that he had information
about Noriega’s murder. When Mendoza took the stand under a grant of immunity, he
swore he could not recall anything that happened at the meeting or anything he told
the police. He did testify, however, that there is a difference between a “violation”
and “getting taken out of the hood.” “You can walk away” from a violation, Mendoza
explained, but if you’re “taken out of the hood,” you don’t walk away from that.




                                               4
       Mendoza’s recorded statement to the police was played to the jury.4
       Mendoza stated that on the night of the murder he was at a meeting of the gang
called by Lewis. The purpose of the meeting was to discipline Noriega for violating the
gang’s rules against fraternizing with rival gang members. “I knew that Mickey was
going to get a violation,” Mendoza told the police. Mendoza gave varying descriptions of
a “violation.” At one point he agreed with the interviewer that “a violation is essentially
a physical beating”; that they are “common”; and that “people get violated all the time”
and “walk away.” Later, however, Mendoza said that a violation could involve a
shooting or a stabbing. Mendoza said that at the meeting he asked Aleman if “the guys”
were going to participate in carrying out the violation. Aleman told him, “Nah. This is
just for the females.”
       He also stated that during the meeting Lewis said he and the women were going
out to buy beer. Mendoza observed that the gang had beer there. Lewis and the women
were gone 30 or 40 minutes and returned to the meeting without Noriega. No one
commented on her absence.
       When the meeting broke up, Mendoza was with the group that dropped off
Aleman. He said that one of the gang members told her to change her clothes and give
them to him because they might have gunpowder on them. The police found Aleman’s
clothes at the location Mendoza named.
       Winston Lee, a Los Angeles police officer, testified as the prosecution’s gang
expert. Lee stated that in general a gang meeting is required to decide whether a member
needs to be disciplined and only one person in the gang, the “shot caller,” can call such a
meeting. Lee testified that the Easy Riders have only one “shot caller” but he was not
asked, and did not volunteer, that person’s name. Lee further testified that within a gang
it’s “a big problem” if a member is socializing with a member of a rival gang. According
to Lee, “A person who socializes with a rival gang member, usually [ends] up either

4
       A trial witness’s deliberately evasive forgetfulness authorizes admission of the
witness’s prior inconsistent statements under Evidence Code section 1235. (People v.
Perez (2000) 82 Cal.App.4th 760, 764.
                                              5
being beaten to the point of death or killed” depending on whether the gang considers the
violation a minor one or a major one. The more serious the violation, the more times the
violator will be shot.
       Lee also testified that based on his experience it was his opinion that Noriega’s
murder was committed for the benefit of the Easy Riders. He admitted, however,
that he had never before heard of the Easy Riders killing one of its own members.
       A jury found Lewis, Herrera and Coronel guilty of first degree murder and found
that they committed the murder for the benefit of the Easy Riders gang. The jury also
found that Herrera personally and intentionally discharged a firearm causing death.
The court sentenced Lewis and Coronel to 25 years to life in state prison. It sentenced
Herrera to 25 years to life on the murder charge and a consecutive 25 years to life
for the gun use enhancement. (Pen. Code, § 12022.53, subd. (d).) The court did
not impose sentence on the gang enhancements because, it reasoned, the punishment of
a 15-year minimum for parole eligibility for the gang enhancement (Pen. Code, § 186.22,
subd. (b)(5)) is superseded by the defendants’ 25-year minimum for parole eligibility for
the gun enhancement. (People v. Nunez and Satele (2013) 57 Cal.4th 1, 39, fn. 6.)5

                                        DISCUSSION
       I.     THE COURT DID NOT ABUSE ITS DISCRETION IN
              DECLINING TO SEVER THE DEFENDANTS’ TRIALS.
       The court denied the motions by Herrera and Lewis to sever their trials from each
other’s and from Coronel’s. We review that ruling for abuse of discretion. (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 41.)
       As a general rule, “[w]hen two or more defendants are jointly charged with any
public offense . . . they must be tried jointly, unless the court orders separate trials.”
(Pen. Code, § 1098.) The court may order separate trials “in the face of an incriminating


5
      For this reason, we need not address Lewis’s claim that there was insufficient
evidence to support the gang enhancement. Lewis concedes that any such error was
harmless.
                                           6
confession, prejudicial association with codefendants, likely confusion resulting from
evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial
a codefendant would give exonerating testimony.” (People v. Massie (1967) 66 Cal.2d
899, 917.) The court may also order separate trials where a joint trial would
compromise a specific trial right of one of the codefendants or prevent the jury
from reaching a reliable verdict. (People v. Coffman and Marlow, supra, 34 Cal.4th
at p. 40, fns. omitted.) The kind of prejudicial evidence that may require severance is
evidence against a codefendant that is likely to inflame the jury against the defendant or
is evidence in a strong case against a codefendant that may spill over and bolster a weak
case against the defendant. (People v. Kraft (2000) 23 Cal.4th 978, 1030.)
       No exception to the general rule applies here. Defendants who are charged with a
common crime involving common events and a common victim in which the evidence is
cross-admissible against all the defendants present a classic case for a joint trial. (People
v. Coffman and Marlow, supra, 34 Cal.4th at p. 40; see People v. Kraft, supra, 23 Cal.4th
at p. 1030.)
       Herrera and Lewis argue Coronel’s text messages were not cross-admissible
insofar as the messages linked them to Noriega’s murder. (See pp. 2 & 4, ante.) As we
explain below, Coronel’s text messages were admissible against Herrera and Lewis
because the texts were trustworthy and relevant to their liability for Noriega’s murder.
“If the evidence in each case is shown to be cross-admissible in the others, ordinarily
any inference of prejudice from joinder of charges is dispelled.” (People v. Sully (1991)
53 Cal.3d 1195, 1222.) Thus, the admissibility of evidence that merely links a defendant
and a codefendant to a common crime does not require severing the defendants’ trials.




                                              7
      II.    THE TESTIMONY OF ALEMAN AND THE STATEMENTS
             OF MENDOZA AND CORONEL WERE PROPERLY
             CONSIDERED BY THE JURY.
      Defendants Lewis and Herrera contend that their convictions must be reversed
under the rule that the testimony of an accomplice must be corroborated by independent
evidence. (Pen. Code, § 1111; CALCRIM Nos. 334 & 335.)6 Lewis and Herrera
maintain that their convictions depended upon the uncorroborated testimony of three
alleged accomplices, Aleman, Mendoza and Coronel.
      The trial court instructed the jury that if the evidence showed a murder was
committed then Aleman was an accomplice to that murder as a matter of law. The court
instructed the jury to decide from the evidence whether, if a murder was committed,
Mendoza was an accomplice to that crime. The court further instructed the jury that it
could not convict the defendants based on the testimony of an accomplice unless that
testimony was corroborated by independent evidence tending to connect the defendants
to the commission of the crime.7
      We conclude that the evidence does not support a finding that Mendoza was an
accomplice in the murder of Noriega and therefore the jury could consider his testimony
without evidence to corroborate it. We further conclude that there was sufficient
corroborating evidence of Aleman’s testimony.




6
        Under Penal Code section 1111, “A conviction cannot be had upon the testimony
of an accomplice unless it is corroborated by such other evidence as shall tend to connect
the defendant with the commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the circumstances thereof.” For
purposes of this rule, Mendoza’s and Coronel’s out-of-court statements are considered
“testimony” when they are used as substantive evidence of guilt. (People v. Williams
(1997) 16 Cal.4th 153, 245).)
7
        The court did not give the jury a corroboration instruction with respect to
Coronel’s text messages. No such instruction was required for the reasons we discuss
in Part IV, post.
                                              8
              A.     The Evidence Did Not Support A Finding That Mendoza Was
                     An Accomplice In The Noriega Murder. Therefore His
                     Statements Did Not Require Corroboration To Be Admissible.
       An accomplice is defined in Penal Code section 1111 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.” (Pen. Code, § 1111.) “An aider and
abettor is chargeable as a principal, but his liability as such depends on whether he
promotes, encourages, or assists the perpetrator and shares the perpetrator’s criminal
purpose. . . . It is not sufficient that he merely gives assistance with knowledge of the
perpetrator’s criminal purpose.” (People v. Sully, supra, 53 Cal.3d at p. 1227.)
A defendant has the burden of proving by a preponderance of the evidence that a
prosecution witness is an accomplice. (Id. at p. 1228.) The evidence does not support
an inference of accomplice liability on Mendoza’s part.
       Mendoza’s admission that he went to the gang meeting knowing that Noriega was
going to get a “violation” does not make him liable for her murder as an aider and abettor
or coconspirator. Mere knowledge of a crime or failure to attempt to prevent it is not
enough to make a person an accomplice. (People v. Moran (1974) 39 Cal.App.3d 398,
413; see People v. Sully, supra, 53 Cal.3d at p. 1227.) There was no evidence that
Mendoza assisted in planning the attack on Noriega or in carrying it out. Furthermore,
defendants have cited no case holding that one whose offer to commit a crime is rejected
may nevertheless be held to be a principal solely on the basis of making the offer.
              B.     Aleman’s Accomplice Testimony Was Independently
                     Corroborated By Mendoza, The Gang Expert, The Police
                     Investigation And The Forensic Examiner.
       Penal Code section 1111 states that a conviction cannot be based on an
accomplice’s testimony unless “other evidence as shall tend to connect the defendant
with the commission of the offense.” “The corroboration required of accomplice
testimony . . . need only connect the defendant to the crime sufficiently that we may
conclude the jury reasonably could have been satisfied that the accomplice was telling the
truth.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 185-186.) “[T]he
                                            9
corroborating evidence may be circumstantial, of little weight by itself, and related
merely to one part of the accomplice’s testimony.” (Id. at p. 186.) The connection to the
defendant must be shown “without aid or assistance from the accomplice’s testimony.”
(People v. Avila (2006) 38 Cal.4th 491, 563.)
          It has long been understood that the testimony of one accomplice cannot
corroborate the testimony of another. (People v. Fauber (1992) 2 Cal.4th 792, 834;
see CALCRIM Nos. 334 and 335 [“The evidence needed to support the (statement/[or]
testimony) of one accomplice cannot be provided by the (statement/[or] testimony) of
another accomplice”].)
          After the prosecution rested, Lewis and Herrera moved to dismiss the case on the
ground that Aleman and Mendoza were accomplices in the murder of Noriega and their
testimony lacked corroboration from a source other than Coronel, an accomplice.
The trial court denied the defendants’ motions on the ground that there was sufficient
evidence apart from Coronel’s text messages to corroborate Aleman’s and Mendoza’s
testimony. We agree.8
          Aleman’s testimony was sufficiently corroborated by Mendoza and the gang
expert.
          Mendoza’s statement corroborated Aleman’s testimony that Lewis called a
meeting of the gang to physically punish Noriega for fraternizing with a member of a
rival gang. His statement served as independent evidence that the women in the gang
(Herrera, Coronel and Aleman) were going to be the ones who administered the
punishment. It also served as independent evidence that Lewis’s directing Noriega and
the other women to come with him to buy beer (when there was already beer on hand)
was a ruse to get Noriega to a place where she could be killed. Officer Lee’s testimony
supported an inference that Lewis was the Easy Riders’ “shot caller” and that Lewis


8
      We have earlier concluded that the evidence did not support a finding that
Mendoza was an accomplice and therefore his statements could be admitted against
Lewis and Herrera without corroboration. (See p. 9, ante.)
                                              10
intended that Noriega be murdered for violating the gang’s edict against socializing with
rival gang members.
         Given corroboration of Aleman’s testimony of defendants connection to the
murder, her entire testimony was properly before the jury, including that she saw Herrera
shooting Noriega in the alley and that after the murder, Herrera told her: “[I]t had to be
done.”
         III.   CORONEL’S TEXT MESSAGES WERE ADMISSIBLE
                AGAINST LEWIS AND HERRERA UNDER THE HEARSAY
                EXCEPTION FOR STATEMENTS AGAINST PENAL INTEREST.
         Lewis and Herrera argue that the court erred in admitting the portions of Coronel’s
text messages that implicated them in Noriega’s murder because the texts did not fall
within the hearsay exception for statements against the declarant’s penal interest. 9
In particular, defendants claim that the portions of Coronel’s texts that implicate them
were not “specifically disserving” of Coronel’s penal interest. (People v. Valdez (2012)
55 Cal.4th 82, 144.) We disagree.10
         The statements at issue are Coronel’s pre-murder texts which informed members
of the Easy Riders that Lewis had called a mandatory meeting to “boot” Noriega
“out the hood” and that the gang are “waiting for me to get out of work to do this” and
her post-murder texts in which she informed the recipients “we took [Noriega’s] last
breath,” that Herrera “shot her all over her body” and that “I wanted to do it but it w[as]




9
        Evidence Code section 1230 states in relevant part: “Evidence of a statement by a
declarant having sufficient knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the statement, when made . . .
so far subjected [the declarant] to the risk of . . . criminal liability . . . that a [person] in
[the declarant’s ] position would not have made the statement unless [the person]
believed it to be true.”
10
        Out-of-court statements to a friend or associate inculpating the defendant and a
codefendant are not “testimonial” and their admission does not violate the confrontation
clause. (Cf. People v. Arauz (2012) 210 Cal.App.4th 1394, 1397.) Defendants do not
raise a confrontation clause argument.
                                             11
gonna b[e] to[o] ob[v]ious [and] she felt comfortable with both of [th]em so it w[as]
[c]ool.”
       Coronel’s pre-murder texts are declarations against her penal interest because they
admitted her role as an aider and abettor in the plan to “boot” Noriega “out the hood”
which, according to the testimony of Mendoza and Officer Lee, meant at the least that
Noriega would receive a severe beating, i.e. an assault with force likely to produce great
bodily injury, and that she might even be killed. Her post-murder texts were likewise
against her penal interest in that they admitted her participation in the murder. “Not all
statements which implicate the declarant are admissible against the nondeclarant,”
however. (People v. Greenberger (1997) 58 Cal.App.4th 298, 328.) Whether Coronel’s
text messages can be used against Lewis and Herrera requires further analysis.
       “Only those statements or portions of statements that are specifically disserving of
the penal interest of the declarant [are] deemed sufficiently trustworthy to be admissible.”
(People v. Greenberger, supra, 58 Cal.App.4th at p. 328.) Of course, a statement may
inculpate the nondeclarant and the declarant and thus be “specifically disserving” of the
defendant’s penal interest. (Id. at p. 335.) Such a determination requires an analysis of
the trustworthiness of the statement inculpating the nondeclarant. This in turn requires
careful consideration of what was said and the totality of the circumstances. (Ibid.)
       The determination of whether a statement is trustworthy rests with the sound
discretion of the trial court. A reviewing court may overturn the trial court’s
determination only if that discretion was abused. (People v. Frierson (1991) 53 Cal.3d
730, 745.)
       We agree with the trial court’s ruling that Coronel’s pre-murder text messages
were admissible against Lewis. The references to Lewis were an integral part of the
messages because, as Officer Lee explained, only the gang’s shot caller can call a
meeting of the gang. Coronel’s messages do not attempt to shift the blame for the
attack on Noriega to others or to reduce Coronel’s own culpability for the crime. To the
contrary, the texts show that Coronel is reveling in the upcoming action against Noriega

                                             12
and is eager to participate (“[t]hey [are] waiting for me to get out of work to do this”).
Moreover, Coronel’s statement that Lewis called the meeting is supported by the
testimony of Mendoza and Aleman.
       The post-murder messages were likewise admissible against Herrera. Similar to
the pre-murder messages, Coronel’s post-murder messages have “particularized
guarantees of trustworthiness.” (Lilly v. Virginia (1999) 527 U.S. 116, 136-137.)
In Lilly, the plurality opinion stated that in determining whether a declaration contains
particular guarantees of trustworthiness, courts should look to the surrounding
circumstances, including the language used by the declarant, and the setting in which the
statement was made. (Id. at p. 139.) Here Coronel made her statements voluntarily in a
noncustodial setting and for the private use of her audience. As the court observed in
Greenberger, “[T]he most reliable circumstance is one in which the conversation occurs
between friends in a noncoercive setting that fosters uninhibited disclosures.” (People v.
Greenberger, supra, 58 Cal.App.4th at p. 335.)
       The court could reasonably conclude that Coronel’s statements that she remained
in the car and that it was Herrera who shot Noriega were not an attempt to escape blame
for the murder because Coronel had a rational reason for not accompanying the other
women down the alley. Coronel explained to her friend, “I wanted to do it but it w[as]
gonna b[e] to[o] ob[v]ious [and] she felt comfortable with both of [th]em so it w[as]
[c]ool.” Rather than attempting to escape blame or reduce her culpability, Coronel owns
the killing, telling Adriana: “[W]e took her last breath” and “Yeah she[’]s dead[.] [W]e
didn’t rush her or nothing[.] [W]e just gave it to her.” Coronel’s naming Herrera as the
shooter was not an attempt to escape blame for the crime but her way of boasting about
what Herrera had done for the gang: “And the potbellied/pregnant girl go the nine and
shot her all over her body.”




                                             13
       IV.    THE COURT WAS NOT REQUIRED TO GIVE THE JURY
              THE ACCOMPLICE INSTRUCTION UNDER CALCRIM
              NO. 334 WITH RESPECT TO CORONEL’S STATEMENTS
              BECAUSE THEY WERE NOT MADE UNDER “SUSPECT
              CIRCUMSTANCES.”
       Herrera and Lewis argue that the court erred in not instructing the jury under
CALCRIM No. 334 that it must decide whether Coronel was an accomplice in the attack
on Noriega and, if so, that her statements incriminating Herrera and Lewis must be
corroborated and viewed with caution. (People v. Avila, supra, 38 Cal.4th at p. 562.)11
       There is little doubt that had it been tendered, the jury would have found Coronel
was an accomplice in the murder of Noriega. It does not necessarily follow, however,
that Cornonel’s text messages had to be corroborated and viewed with caution.
As our Supreme Court explained in People v. Williams, supra, 16 Cal.4th at p. 245,
Penal Code section 1111 requires a court to instruct on the need for corroboration and
caution only for accomplice “testimony.” (See fn. 6, ante.) In Williams, the court held
that “‘“testimony” within the meaning of . . . section 1111 includes all oral statements
made by an accomplice or coconspirator under oath in a court proceeding and all out-of-
court statements of accomplices and coconspirators used as substantive evidence of guilt
which are made under suspect circumstances. . . . [W]hen the out-of-court statements
are not given under suspect circumstances, those statements do not qualify as
“testimonial” and hence need not be corroborated under . . . section 1111.’” (Ibid.,




11
       CALCRIM No. 334 states in relevant part: “If you decide that a [declarant] was
an accomplice, then you may not convict the defendant of [murder] based on his or her
[statement] alone. You may use the [statement] of an accomplice to convict the
defendant only if: [¶] 1. The accomplice’s [statement] is supported by other evidence
that you believe; [¶] 2. That supporting evidence is independent of the accomplice’s
[statement]; [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to
the commission of the crime[s].”
                                            14
quoting People v. Jeffery (1995) 37 Cal.App.4th 209, 218 and People v. Sulley, supra,
53 Cal.3d at p. 1230.)12
       The Williams court concluded that “‘[t]he most obvious suspect circumstances
occur when the accomplice has been arrested or is questioned by the police.’” (People v.
Williams, supra, 16 Cal.4th at p. 245; quoting People v. Jeffery, supra, 37 Cal.App.4th
at p. 218.) Here, Coronel’s statements were not made under arrest, under questioning by
the police or under other circumstances that might be considered suspect. Instead, it
appears from the language and tone of the texts that she made her statements freely and
to friends. As we noted above, a conversation between friends is “the most reliable
circumstance” in which a declarant incriminates a defendant. (People v. Greenberger,
supra, 58 Cal.App.4th at p. 335.)
       Therefore, even though Coronel was an accomplice, her out-of-court statements
were sufficiently reliable that they did not require corroboration and did not have to be
viewed with caution. (People v. Sully, supra, 53 Cal.3d at p. 1230: “The usual problem
with accomplice testimony—that it is consciously self-interested and calculated—is not
present in an out-of-court statement that is itself sufficiently reliable to be allowed in
evidence.”)
       V.     THE COURT DID NOT ERR IN ADMITTING CORONEL’S
              OUT-OF-COURT STATEMENT THAT SHE AGREED NORIEGA
              DESERVED TO DIE AND IN INSTRUCTING THE JURY ON
              ADOPTIVE ADMISSIONS.
       Over Coronel’s objection, the court admitted an exchange of text messages
between an unknown person and Coronel referring to Noriega’s murder. The unknown
individual texted: “She deserved it for being a whore. I never liked her.” Coronel




12
       The court was not using the term “testimonial” in the Sixth Amendment sense
(see Crawford v. Washington (2004) 541 U.S. 36) but as the Legislature used the term
when it enacted Penal Code section 1111 in 1872. (People v. Belton (1979) 23 Cal.3d
516, 526-527.) Defendants do not contend that Coronel’s text messages were
“testimonial” for purposes of the confrontation clause.
                                            15
answered: “Hahhaha it’s true.” In another exchange the unknown person asked Coronel:
“But did you guys hit her?” Coronel answered: “Yup she[’]s dead.”
       The court ruled that Coronel’s responses to the texts were admissible under the
hearsay exception for adoptive admissions and, again over Coronel’s objection, instructed
the jury on how to analyze adoptive admissions. Coronel argues the court erred in
allowing the quoted exchanges in evidence and in instructing on adoptive admissions.
We disagree.13
       Evidence Code section 1221 states: “Evidence of a statement offered against a
party is not made inadmissible by the hearsay rule if the statement is one of which the
party, with knowledge of the content thereof, has by words or other conduct manifested
his adoption or his belief in its truth.”
       Coronel’s statement—“it’s true”—manifested her adoption and belief in the truth
of the other person’s statement that Noriega “deserved” to die and therefore her statement
was admissible under Evidence Code section 1221.
       We also reject Coronel’s alternative contention that her statement agreeing that
Noriega deserved to die should have been excluded as irrelevant. Coronel’s response was
relevant to her liability as an aider and abettor because it shows that she planned to kill
Noriega, not just inflict a severe beating.
       Because Coronel did not request an instruction on adoptive admissions (indeed she
objected to the court giving one), the decision whether to instruct the jury on how to

13
        CALCRIM No. 357, as modified by the court, states as follows: “If you conclude
that someone made a statement in the text messages that accused Ariana Coronel of the
crime or tended to connect Ariana Coronel with the commission of the crime and Ariana
Coronel did not deny it, you must decide whether each of the following is true: [¶] 1. The
statement was made to the defendant or made in her presence; [¶] 2. The defendant heard
and understood the statement; [¶] 3. The defendant would, under all the circumstances,
naturally have denied the statement if she thought it was not true; [¶] AND [¶] 4. The
defendant could have denied it but did not. [¶] If you decide that all of these
requirements have been met, you may conclude that Ariana Coronel admitted the statement
was true. [¶] If you decide that any of these requirements has not been met, you must not
consider either the statement or Ariana Coronel’s response for any purpose. [¶] You must
not consider this evidence in determining the guilt of any other defendant.”
                                               16
analyze an adoptive admission rested in the court’s sound discretion. (People v. Carter
(2003) 30 Cal.4th 1166, 1198.) Coronel contends that the court erred in giving the
instruction because there were no adoptive admissions. We reject that contention for the
reasons explained above. We find no abuse of discretion in giving the adoptive
admission instruction.
       VI.    THE PROSECUTOR DID NOT COMMIT MISCONDUCT
              IN ARGUING ALEMAN AND MENDOZA RISKED THEIR
              LIVES IN TESTIFYING AGAINST DEFENDANTS.

       Defendants maintain the prosecutor committed misconduct by attempting to
frighten the jurors during his closing argument.
       In explaining to the jurors why they should find Aleman and Mendoza credible
witnesses, the prosecutor emphasized the risk they were taking by “snitching” on
members of the gang. He told the jury that the two witnesses were “dead people
walking” because “if they get caught, they’re going to get shot on sight” and that this
would be their fate no matter what verdict the jury returned.
       The prosecutor also told the jury, “There are unfriendly ears in this court as we sit
right now, unfriendly ears that are listening to every single word that is said in this
courtroom. And that is getting back to [the gang].”
       The defendants objected to these and similar remarks by the prosecutor. The court
overruled their objections but instructed the jury that “what the attorneys say during
closing arguments is not evidence.” The defendants’ requests for mistrial were denied.
       On appeal, the defendants maintain the prosecutor’s remarks were improper
because they invited the jury to convict the defendants because the witnesses against
them, Aleman and Mendoza, were frightened. Further, the “unfriendly ears” remark
suggested that the jurors should be afraid of retaliation from the gang if they convicted
the defendants. To support their argument, the defendants pointed out that every time
there was a break in the trial, the jurors elected to go to the jury room, where they
presumably felt safe.
       These arguments are without merit.
                                              17
       There was direct evidence that Aleman and Mendoza were afraid their testimony
would lead to attacks on them and their families by members of the Easy Riders. The
prosecutor’s characterization of the witnesses as “dead people” and his prediction they
would be “shot on sight” were inferences that could reasonably be drawn from the
witnesses’ testimony. (People v. Roberts (1966) 65 Cal.2d 514, 519-521.) Furthermore,
we do not view the prosecutor’s characterization of the witnesses as frightened to be an
unethical appeal for sympathy. Evidence that a witness is afraid to testify or that a
witness is fearful of retaliation has a direct bearing on the credibility of that witness.
(People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450.)
       As to fear on the part of the jury, the court explained that the reason the jurors
retired to the jury room during breaks was because the bailiff “provides them [with]
coffee and treats there.”
       VII.   THE TRIAL COURT ERRED IN GIVING INSTRUCTIONS
              THAT ALLOWED THE JURY TO CONVICT LEWIS AND
              CORONEL OF FIRST DEGREE MURDER UNDER THE
              NATURAL AND PROBABLE CONSEQUENCES DOCTRINE
              BUT THE ERROR WAS HARMLESS BEYOND A
              REASONABLE DOUBT.
       The trial court instructed the jury that it could convict Lewis and Coronel of
murder as aiders and abettors under alternative theories. Either they directly aided and
abetted Herrera in the deliberate, premeditated murder of Noriega or they aided Herrera
in an assault on Noriega with force likely to produce great bodily injury and murder was
the natural and probable consequence of that assault. The jury returned a verdict of first
degree murder.
       While this appeal was pending, our Supreme Court issued its opinion in
People v. Chiu (2014) 59 Cal.4th 155. The court held that “[a]n aider and abettor
may not be convicted of first degree premeditated murder under the natural and
probable consequences doctrine.” (Id. at pp. 158-159.) The court made clear, however,
that “[a]iders and abettors may still be convicted of first degree premeditated murder
based on direct aiding and abetting principles.” (Id. at p. 166.)

                                              18
       We are left with the question whether giving the erroneous instructions allowing
the jury to convict Lewis and Coronel of first degree premeditated murder was,
nevertheless, harmless beyond a reasonable doubt. (People v. Chiu, supra, 59 Cal.4th
at p. 167.) We conclude that it was.
       “When a trial court instructs a jury on two theories of guilt, one of which was
legally correct and one legally incorrect, reversal is required unless there is a basis in the
record to find that the verdict was based on a valid ground.” (People v. Chiu, supra,
59 Cal.4th at p.167.) In Chiu, the court found no such valid ground. Indeed, there were
indications from the jurors’ questions and comments “that the jury may have been
focusing on the natural and probable consequences theory of aiding and abetting[.]”
(Id. at p. 168.) Here, there are no similar indications and the evidence that the defendants
directly aided and abetted Herrera in the premeditated murder of Noriega is so strong that
we are convinced beyond a reasonable doubt that the instructional error was harmless.
       The undisputed facts of this case provide strong evidence of guilt. The evidence
established that Lewis was the gang’s shot-caller, that only the shot-caller could authorize
the killing of a gang member, that Lewis called a gang meeting that Noriega was required
to attend, that he made up the story about needing to buy beer and that he drove Herrera,
armed with a gun, to a dark alley where she shot Noriega. The evidence also included
Coronel’s texts setting up the meeting to “take Mickey outta the hood” and her text the
day after the murder: “I stayed in the car with [Lewis] because obviously me and the RIP
don’t get along so the RIP would have smelt it. . . . I wanted to do it but it w[as] gonna
b[e] to[o] ob[v]ious [and] she felt comfortable with both of [th]em so it w[as] [c]ool.”
(Italics added.) These facts constitute strong evidence that defendants invited Noriega to
go with them for a car ride and agreed to kill her.




                                              19
                                        DISPOSITION
      Each defendant’s judgment is affirmed.
      NOT TO BE PUBLISHED.




                                                       ROTHSCHILD, Acting P. J.
We concur:



                    JOHNSON, J.



                    MILLER, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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