Filed 3/7/13 P. v. Landry CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. DESHAWN LANDRY et al., Defendants and Appellants. H037131 (Santa Clara County Super. Ct. No . C1079877, CC772555, CC822226, CC894661)

Codefendants Lamar Landry, Deshawn Landry 1 and Eric Greer were convicted by a jury of one count of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) 2 The jury also found true an allegation that Lamar, Deshawn and Greer personally in flicted great bodily injury on the victim, Anthony Mata, in the course of the assault. (§§ 12022 .7, subd. (a), 1203, subd. (e)(3).) The three codefendants were among a gr oup of people who assaulte d Mata outside a San Jose nightclub early in the morning of June 16, 2010. Mata was knocked to the ground during the fight and kicked at least twice in the he ad, suffering severe injuries. The melee was witnessed by several people including tw o bouncers from nearby nightclubs and the manager of one of those same clubs.

1 To minimize confusion, we will hencefor th refer to Lamar and Deshawn by their first names.
2 Further unspecified statutory re ferences are to the Penal Code.2 Lamar was sentenced to a total term of 14 years in prison; Deshawn was sentenced to a total term of 11 years in prison; and Greer was sentenced to a total term of five years in prison. On appeal, Lamar argues that the cour t erred in admitting a statement made by Greer during a jailhouse telephone call to a third party in which Greer apparently admitted his involvement, along with unspecifie d others, in the assault. Lamar contends that this statement, while nontestimonial and properly admitted against Greer as a declaration against interest, should not have be en admitted as evidence of Lamar’s guilt. We disagree and shall affirm the judgment against Lamar. Deshawn argues there was insu fficient evidence to suppor t the jury’s finding that he personally inflicted great bo dily injury on Mata and also that th e jury was improperly instructed on that enhancement allegation. He also argues that the prosecutor violated his due process rights and right to a fair trial by requesting aidi ng and abetting instructions following the close of evidence , when before trial she indi cated Deshawn would be tried solely as a direct perpetrator of the assault. We agree there was in sufficient evidence to support the finding that Deshawn personally inflicted great bodily injury on Mata and shall reverse the judg ment as to Deshawn. 3 We disagree that there was any due process violation or that Deshawn was deprived of th e right to a fair trial by the prosecutor’s request for aider and abettor instructions. As to Greer, we appointed counsel to re present him in this court. Appointed counsel filed an opening brief which states th e case and the facts, but raises no specific issues. We notified Greer of his right to submit written argument in his own behalf within 30 days. That period has elapsed, an d we have received no written argument from
Greer. Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40

3 We therefore need not reach Deshawn’s argument that the jury was improperly instructed on the great bod ily injury enhancement.3 Cal.4th 106, we have reviewed the whole reco rd and have concluded there is no arguable issue on appeal.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND A. Information Deshawn, Lamar and Greer, along with th ree additional codefendants, John Louis Downs 3 ( sic ), Brian Keith Sabathia a nd Christopher Anthony Leggett, 4 were charged by information dated October 28, 20 10, with one count of assau lt by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and it was further alleged that each defendant personally inflicted great bodily injury on Mata in th e commission of that assault (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). Deshawn and Downs were separately charged with a misdemeanor count of resisting, delaying or obstructing an officer (§ 148, subd. (a)(1)). The information further allege d that Greer, at the time of the charged assault, was out of custody on bail for felony assault with a deadly weapon (§ 245, subd. (a)(1)) within the meaning of section 12022.1. Deshawn wa s alleged to have a prior juvenile adjudication for shooting at an occupi ed motor vehicle (§ 2 46), which counted as a strike prior (§§ 667, subds. (b)-(i), 1170.12). Lamar was alle ged to have a prior serious felony conviction and a prior strike convicti on. (§§ 667, subds. (a), (b)-(i), 1170.12.) B. Evidence presented at trial 1. Eyewitness and police testimony At approximately 1:30 a. m. on June 16, 2010, Dus tin Isaacson was standing outside the VooDoo Lounge, a nightclub wher e he worked as a security guard. The nightclub was closing, and Is aacson was helping to clear the bar and reduce congestion on the sidewalks, as other clubs in the area close at the same time.

4 Downs, Sabathia and Leggett entered into plea bargains before trial and are not involved in the instant appeal.4 Isaacson heard a loud group of between 15 and 20 people crossi ng the street from the direction of Toons, another nightclub near the VooDoo Lounge. As Isaacson watched, this group stopped directly across from the VooDoo Lounge and some of those near the front of the group turned towards the ones in th e back and there was shouting
back and forth. Isaacson thou ght the groups would split up w ithout further incident, but as some of the people continued to argue, those near the edges returned and a physical fight began. Isaacson called 911. He continued to observe the fight, and saw a man, later identified as Mata, get thrown to the ground and kicked at leas t twice in the head. Isaacson recognized a security guard from Toons, whose name he did not know, trying to separate the combatants and trying to pu ll people off of Mata. Isaacson flagged down a passing police car, a nd a second officer arrived just as the fight was breaking up. By th e time the police arrived, the other security guard had
returned to Toons. Isaacson, a trained EMT, went to assist Mata. Mata was lying face up, his eyes swollen shut and he was bleeding from the m outh and nose. He had a three-inch long laceration on his forehead, small cuts above his eyebrows and smaller cuts on the side of his face. Mata was conscious and moaning, but could not respond to questions. Armando Martinez, the manager of Toons, was aware that two Hispanic men had been escorted out of the night club shortly before closing. He saw them outside and tried to calm one of them down, then walked them to a nearby pa rking lot. Martinez saw the two men again a short time later, between To ons and the VooDoo Lounge. The one who had been most upset before was yelling at and taunting passersby, while his companion remained quiet. As Martinez walked toward s the two men, several men in the crowd attacked the quieter man and perhaps 10 people went after the louder man. The louder man (Mata) went down and stopped moving, as blood pooled underneath him. Martinez5 was unable to identify anyone in the crowd of people who attacked Mata and his companion. Mata went out with his friend, Joey, on the evening of June 15, 2010. Because Joey was not dressed properly for one bar, they went to Toons, which has a more relaxed dress code. After consuming six or seven mixed drinks, Ma ta was carried out of Toons by a bouncer. The next thing he remembers is waking up from a coma in a hospital bed. Mata had bruises on his head, arms, and ches t, as well as lacera tions on his arms, and stitches above his left eyebrow and on his nose, which left scars. He had a broken nose and a broken bone underneath his eye. At th e time of the trial, Ma ta continued to suffer from short term memory loss and migraines. After Mata returned to work, a light skinned Black or Latina woman stopped by and talked to him, saying she was the girlfrie nd of one of the men who attacked him. She “apologized on behalf of the gentleman,” gave Mata her phone number and said he should call her if there was anything she coul d do to help with his medical bills or anything. Though she seemed sincere and he was never th reatened by anyone, Mata was slightly afraid because if that woman could find him, so co uld other people.
San Jose Police Lieutenant David Sant os was patrolling in downtown San Jose that evening and happened to be stopped for a red light at the intersection of Second Street and Santa Clara Street, near Toons and the VooDoo Lounge at the time of the incident. Four people ran up to his patrol SUV, and he heard a woman yell, “They’re killing him.” Santos looked ov er and saw people running away, with one man lying on the ground, a pool of blood around his head. A person standing near Sant os said, “They’re leaving in the black car.” Santos saw a black Charger pull out of a parking lot, driving rapidly south on Second Street. Santos pursued the vehicle, which made a ri ght turn onto San Fern ando Street. Santos activated his lights and siren and the Charger stopped at the intersect ion of San Fernando
and First Streets.6 Santos got out of his SUV, with his weapon drawn, and five people climbed out of the Charger. The men were eac h looking in different direc tions and Santos noted that none of them seemed to be pa ying any attention to him, whic h he thought odd. He twice ordered the five men to get on the ground, but they did not move. As Santos heard more sirens approaching, the five men ran off in different directions. He broadcast that the men had run off, but Santos remained by the Ch arger as he saw there were more people
inside. Santos ordered them to come out of the car one at a time. A total of four more people exited the vehicle: Gree r, Lamar, Sabathia and Leggett. Officers Phillip Giusto and Jarrod Jesser responded to Santos’s reports about stopping the Charger and that some of the su spects had fled northbou nd on First Street. Santos described the suspects as Black males, including one wearing a white t-shirt and one wearing a red baseball cap. Giusto and Jesser spotted a Black male wearing a white t-shirt, hiding behind a pillar on Post Street at the end of Lights ton Street. Jesser contacted the man, later identified as Deshawn, and took him into custody. As Deshawn was sitting on the curb, Jesser noticed spots of blood on Deshawn’s white athletic shoes. Jesser took Deshawn’s shoes and placed them in evidence collection bags. Giusto also saw a second suspect, John Downs, wearing a red baseball cap, and ordered him to lie on the ground. Santos identified Deshawn and Downs as two of the five men who had run away from the Charger. Adrian Gastelo was a security guard at T oons that evening, and tried to break up a fight involving 25 to 30 people outside the nightclub. As the fight was underway, he saw five or six people jump out of a Camry and jo in in. He overheard one of the people from the Camry, say “there it goes,” or “there they go,” as he got out of the car. As Gastelo pulled people out of the melee, he could see Mata on the ground, unconscious and bleeding from his head and neck. He tried to protect Mata from further injury, and as the fight broke up, Gastelo heard sirens which caus ed the remaining people to scatter. As he7 did not want to get involved, Ga stelo first went back into T oons and then went home. He returned to the nightclub after police called and asked him to come back. At trial, Gastelo testified that he did not, in fact, see the fight start, but only saw the end of it. He did not see Deshawn, Lama r or Greer hit, punch or kick Mata while he was on the ground, and he lied to the police when he identified them as being involved in the fight. Gastelo said that he lied because, when he initially re turned to Toons at a police officer’s request, anothe r unidentified plainclothes Bl ack police officer called him by his full name, said Gastelo had outstanding warrants and urged him to cooperate fully. A uniformed police officer then came up and as ked him what he had seen. Gastelo was
afraid he would be arrested if he did not tell the police officer what he wanted to hear, so he described what he had overheard other pe ople in Toons saying about the fight. Based on what he had heard, he told police he saw a tall Black ma n wearing a purple hat and a purple shirt hit Mata in the back of the head. After Mata fell to the ground, a group of 11 or so Black males kicked and punched him. However, Gastelo denied that he personally witnessed any of that. In September 2010, 5 police went to Gastelo’s hous e to serve him with a subpoena to testify at the preliminary hearing, but he was not home. In a subsequent phone call, Gastelo told a police officer he would be at work on the afternoon of September 29, but he was not there when police a rrived with the subpoena. Gast elo was finally served with the subpoena the following day. In spite of the subpoena, Ga stelo failed to appear at the preliminary hearing. When asked about his failure to appear for the preliminary hearing, Gastelo testified that he ignored it because he “hate[s] court.” Instead he went to work, where he was arrested. After spending two days in jail, he was released and subsequently testified at the preliminary hearing, where he said he did not see the fight first-hand and thus did

5 The reporter’s transcript erroneously lists the date as “9/27/2011.”8 not recognize any of the defendants. Accord ing to Gastelo, the only reason he falsely accused the defendants in the first place was in order to avoid be ing arrested on the unspecified warrants referenced by the unidentif ied plainclothes officer who spoke to him the night of the assault.
Police Officer Anson Kahaku contradict ed Gastelo’s trial testimony. Kahaku
testified he was the officer who called Gast elo that morning and asked that he return
downtown to relate what he had seen. Kaha ku said he never checked to see if Gastelo had any outstanding warrants. When Gastelo returned to th e nightclub that evening, he was very cooperative. According to Kahaku, Gastelo said he saw a tall Black man wearing a purple hat and shirt hit Mata on the head from behind, knocking him to the ground. Approximately 11 Black males then kicked and punche d Mata as he la y on the ground.
Kahaku took Gastelo to the corner of San Fernando and Firs t Street, where he identified Greer, Lamar, Sabathia and Leggett as part of the group that beat and kicked Mata. Gastelo said Lamar was one of the peop le that exited the Camry to join the fight
and also said that he was the tall man in the purple shirt and ha t that hit Mata in the back of the head. Gastelo also sp ecifically said that he witnessed Greer and Lamar kick Mata as he lay on the ground.
Kahaku then took Gastelo to another lo cation, where Downs and Deshawn were being held, for a second in-fiel d identification. At the se cond location, Gastelo said
Downs had kicked Mata as he was on the ground. Gastelo said Deshawn was one of the people who had jumped out of the Camry and joined the fight. However, he did not indicate that he saw Deshawn actually hit or kick Mata at any time during the fight. Gastelo heard Deshawn say as he and the othe rs got out of the Camry that they should
handle it “one on one.”
There was no record in the San Jose Police Department computer system that any officer ran a warrants check for Gastelo during the relevant time period. Also, according9 to police records, there were four nonuniformed police offi cers on duty that morning,
none of whom were Black. The only uniformed Black officer on duty that evening was Officer Vernon Todd, who assisted Santos af ter he stopped the Charger. Todd testified he did not speak with Gastel o or any other witnesses outside Toons that evening. Although police dispatch record s showed Todd arriving at th e scene outside the VooDoo Lounge at approximately 1:35 a.m., Todd said this was likely due to him not advising the dispatcher that he diverted to Santos’s location instead of responding to Toons.
2. Forensic evidence As with Deshawn’s shoes, Lamar’s shoes al so appeared to have blood on them and were taken into evidence, along with a purpl e shirt located in th e back seat of the Charger. DNA testing disclosed that Mata wa s the sole source of the blood on Lamar’s
and Deshawn’s shoes. Mata’s DNA was found in blood stains on Greer’s shoes. Lamar,
Deshawn and Greer also had bl ood on their clothing.
Criminalist Cordelia Willis studied th e blood spatter on Deshawn and Lamar’s shoes. According to Willis, the spatter on Deshawn’s right shoe consisted of small droplets of blood, which traveled at medium velocity through the air for anywhere from one to four feet before hitting the shoe. Th e patterns were characteristic of stomping, kicking or other uses of fo rce, and Deshawn’s right shoe was approximately one foot away from the blood source at the time it was spattered. However, Willis could not say
whether or not Deshawn’s shoe came into direct contact with a source of blood; rather, the most she could say was that the blood droplets traveled th rough the air a short distance before striking his shoe. 3. Jailhouse telephone calls The jury heard edited versions of audi o tapes of phone calls made from jail by Deshawn and Greer, as well as a recording of a jail visit between Deshawn and a third party. The calls made by Deshawn were admissible only against him, and concerned efforts to persuade various witnesses to testif y either that he was not present at the scene10 or that he was only trying to help Mata. In the phone calls, Deshawn denied being present at the scene, but during the jail visi t, he said the witne sses from Toons could testify they saw him “helping the dude up a nd helping the dude, . . . who, who all got jumped.” A call made by Greer on July 20, 2010, wa s played at trial and was admitted as a declaration against penal intere st and the jurors were instru cted that they could also consider it as evidence against all of the codefendants. The portion of that call which was played for the jury consisted of the following exchange: “[Gr eer]: You know, man. You know, how, you know how San Jose, Santa Cl ara, man, Santa Clara is one of those counties that even if you don’t do nothing they gonna try to ge t you for doing something. So you know . . . . [Third part y]: Yeah. [Greer]: We, we did something and we’re trying to prove that we didn’t do nothing. You k now, it’s just gonna look a whole lot uglier. [Third party]: Yeah, I know what you mean.” 4. Defense evidence Corey Maciel, a paramedic who responded to the scene of the fight and assisted Mata, testified that Mata appeared conf used and exhibited an altered level of consciousness, giving inappropri ate responses to questions. M aciel did not think this was unusual given the injuries Mata had sustained that night. Investigator Anne Fields, hired by Desh awn’s counsel, testified she visited the
crime scene in December 2010 and took measurements. Torian Carrillo, an investig ator employed by Fields, te stified that she spoke to Armando Martinez during her inve stigation of this case, but did not threaten him in any

way. Bruce Wiley, an investigator for the Sant a Clara County District Attorney’s office, testified he interviewed Gastelo, following the preliminary hearing, to discuss why his testimony at that hearing differed from the stat ements he gave to the police the night of
the assault.11 C. Verdict and sentencing The jury found Deshawn, Lamar and Gr eer guilty of assault by means of force likely to produce great bodily injury (§ 245 , subd. (a)(1)) and also found that each of them personally inflicted great bodily injury on Mata in the course of that assault (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). The jury also foun d Deshawn guilty of misdemeanor resisting, delaying or obstr ucting an officer (§ 148, subd. (a)(1)). The court subsequently found true 6 that Deshawn had a prio r juvenile adjudication for shooting at an occupied vehicle (§ 246), wh ich counts as a strike prior (§§ 667, subds. (b)-(i), 1170.12). As to Lamar, the court found true the allegations that he had a prior serious felony conviction and a prior strike conviction (§§ 667, subds. (a), (b)-(i), 1170.12). With respect to Gr eer, the court found true the a llegation, pursuant to section 12022.1, that at the time he committed the instant assault against Mata, he was out of custody on bail on a felony charge of assault with a deadly w eapon (§ 245, subd. (a)(1)). At sentencing, the court denied Lamar’s Romero 7 motion and sentenced him to a total term of 14 years, cons isting of the middle term of three years on the assault by means of force likely to produce great bodily injury (§ 245, subd. (a )(1)), doubled to six years pursuant to the strike pr ior, plus three years for the gr eat bodily injury enhancement (§ 12022.7, subd. (a )), plus an additional five years fo r his prior serious felony conviction (§ 667, subd. (a)). The court also imposed a concurrent middle term of three years for an admitted violation of probation in a separate case. Lamar was awarded a total of 420 days of credit, consisting of 366 days of cu stody credits and 54 days of conduct credits. 8

6 Just prior to the jury rendering its verd ict, the codefendants waived their right to a jury trial on the remaining sent encing enhancement allegations.
7 People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497.
8 In the probation violation case, Lama r was awarded 647 days of credit--563 custody plus 84 conduct.12 As to Deshawn, after denying his motion to strike his prior juvenile adjudication for sentencing purposes, the cour t sentenced him to a total term of 11 years, consisting of the middle term of three years on the assau lt by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), doubled to six years due to the strike prior, plus three years for the great bodily in jury enhancement (§ 12022.7, subd. (a)). The court also imposed two consecutive one year (one-third the middle term) terms for two admitted violations of probation in separate cases. Deshawn was awarded 420 days of credit, consisting of 366 custody cr edits and 54 conduct credits in the controlling case. 9

Greer was sentenced to a total term of fi ve years, consisting of the lower term of two years on the assault by means of force likel y to produce great bodily injury (§ 245, subd. (a)(1)), plus three years for the great bo dily injury enhancem ent (§ 12022.7, subd. (a)). Pursuant to a prior plea bargain, Greer was sentenced to a consecutive term of eight
months for the case which served as the basis for the “on bail” enhancement allegation (§ 12022.1). The court applied a portion of his custody credits to satisfy that term, following which the court struck the “on bail” enhancement. He was then awarded total credits of 187 days, consisting of 163 custody credits and 24 conduct credits. The court imposed a $30 court security fee, a $30 cr iminal conviction assessment and a $1,000
restitution fine. Greer waived his ri ght to attend a restitution hearing. At the July 19, 2011 re stitution hearing, the cour t ordered each codefendant, including Downs, Leggett and Sabathia, to pay $30,862, plus interest, in victim restitution directly to Santa Clara Valley Medi cal Center. The codefendants were ordered to pay restitution jointly and severally.

9 Deshawn was also awarded credits against his sentences in the two probation violation cases. He received 280 days of cr edit (244 custody and 36 conduct) in one case and 127 days of credit (1 11 custody and 16 conduct ) in the second case.13 II. D ISCUSSION A. Insufficient evidence Deshawn persona lly inflicted great bodily injury on Mata Deshawn argues that there was insufficien t evidence to suppor t the jury’s finding that he personally inflicted great bodily inju ry on Mata since there was no evidence he committed any acts which could ha ve resulted in great bodily injury. Though Gastelo told police he saw Deshawn at the scene of the fight, there was no testimony from anyone that Deshawn punched or kicked Mata. In fact, Gastelo also told police that Deshawn, when exiting the Camry at the start of the fight, told his companions that the fight should be “one on one.” We agree that the eviden ce presented at trial was not sufficient to establish that Deshawn personally inf licted great bodily injury on Mata. In considering a claim of insufficient evidence, we “rev iew the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence whic h is reasonable, credible, and of solid value--such that a
reasonable trier of fact coul d find the defendant guilty be yond a reasonable doubt.” ( People v. Johnson (1980) 26 Cal.3d 557, 578.) Section 12022.7, subdivi sion (a) authorizes additio nal punishment for “[a]ny person who personally inflicts great bodily injury on any pers on other than an accomplice in the commission of a felony or attempted felony . . . .”

In People v. Cole (1982) 31 Cal.3d 568, 572, th e Supreme Court held that the phrase “personally inflicts” in section 12022.7 means what it says: “[T]he individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury.” (Italics added.) In People v. Modiri (2006) 39 Cal.4th 481 ( Modiri ), the Supreme Court explained how to apply section 12022.7 when the injury is inflicted in the course of a group beating. Modiri held that the defendant ne ed not act alone to have personally caused a victim’s injuries. ( Modiri , supra , at p. 493.) A person may receive
an enhanced sentence under section 12022 .7 if the person “joins others in actually14 beating and harming the victim, and where the precise manner in which he contributes to the victim’s injuries cannot be measured or ascertained.” ( Modiri , supra , at p. 495, italics added.) The personal-infliction finding can be made “if defendant personally applied force to the victim, and such force was sufficient to produce grievous bodily harm either alone or in concert with others.” ( Id . at p. 497.) Here, the evidence showed th at Deshawn was present at the scene of the fight.
Gastelo identified him as bei ng one of the people that ex ited the Camry and ran over to the group fight. Mata’s blood was on his sh oes. However, Gastelo did not tell anyone that he saw Deshawn throw any punches at Mata or kick him. Criminalist Willis testified that, though the blood spatter on Deshawn’s right shoe wa s formed when small droplets of blood traveled at medium velocity throug h the air for approximat ely one foot before striking his shoe and that this pattern was char acteristic of stomping, kicking or other use of force, she could not say whet her or not his shoe came into direct contact with the blood source (i.e., Mata). All she could say wa s that the blood drople ts traveled through the air a short distance before striking Deshawn’s shoe. Considering this evidence in the light mo st favorable to the judgment, we cannot find that it presents substantial evidence that Deshawn personally inflicted great bodily injury on Mata. No one saw him hit or kick Mata and the blood spatter only established that Deshawn’s shoe was approximately one f oot away from the source of the blood, not
that it ever came into direct contact with Ma ta’s body. Based on this evidence we cannot say a reasonable finder of fact could concl ude beyond a reasonable doubt that the blood got on Deshawn’s shoe because he kicked him and thus pers onally applied force sufficient to cause great bodily harm. B. No error in allowing aidi ng and abetting instructions 1. Background During voir dire, defense couns el asked the prosecution to set forth its theory of guilt in the case and the prosecuti on indicated that it considered each codefendant to be a15 direct perpetrator of the assault. Follo wing the close of evidence, the prosecutor requested that the jury be in structed on aiding and abetting. Deshawn’s counsel objected that submitting those instructions to the ju ry would violate his due process rights and right to a fair trial. The cour t overruled the objection, citing People v. Jenkins (2000) 22 Cal.4th 900 ( Jenkins ) and instructed the jury on the aider and abettor theory of liability. 2. Analysis
Under the Sixth Amendment to the United States Constitu tion, an accused has the right “to be informed of the na ture and cause of the accusation” against him. In general, the prosecution need not provide specific noti ce of which theories of guilt it will pursue at trial; rather, the accused “will receive adeq uate notice of the pros ecution’s theory of the case from the testimony presented at the preliminary hearing” as well as from the information. ( People v. Diaz (1992) 3 Cal.4th 495, 557.) In People v. Bishop (1996) 44 Cal.App.4th 220, 231, the court stated that “[t]o effectuate the constitutional rights to counsel and to due process of law, an accused must be inform ed of the crimes with which he is charged in order to have a reasonable opportunity to prepare a defense and respond to the charges.” We think the trial court properly relied on Jenkins in overruling the objection to
aider and abettor instructions. In Jenkins , a capital murder case, Jenkins was charged with, among other things, first degree mu rder and conspiracy to murder. ( Jenkins , supra , 22 Cal.4th at p. 930.) On appe al, Jenkins claimed “the court erred in instructing the jury that defendant could be found gui lty of murder either as a dir ect perpetrator or as an aider and abettor, because the prosecutor had co ntended throughout th e proceedings that defendant was the person who shot [the victim].” ( Id . at pp. 1023-1024.) After noting that “[n]ormally, ‘the accused w ill receive adequate notice of the prosecution’s theory of the case from the testimony presented at th e preliminary hearing,’ ” the California Supreme Court found that the aider and abetto r instruction did not violate Jenkins’s due16 process rights as he “was put on actual notice th rough the conspiracy charge that he could be subject to accomplice liab ility for the murder.” ( Id. at p. 1024.)
Deshawn’s reliance on Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, is misplaced. In that case, the state conceded on appeal that the prosecution’s last-minute request for felony-murder instructions, after both sides had rested, misled Sheppard and denied him an effective opportun ity to prepare a defense. ( Id . at pp. 1236-1237.) The
court concluded the error coul d not be considered harmless because it denied Sheppard the opportunity to present evidence to defend against the new theory. The court stated: “Here, the prosecutor ‘ambushed’ the defense with a new theory of culpability after the evidence was already in, after both sides had re sted, and after the jury instructions were settled. This new theory then appeared in the form of un expected jury instructions permitting the jury to convict on a theory that was neither subject to adversarial testing, nor defined in advance of the proceeding.” ( Id . at p. 1237.) Here, Deshawn cannot make a credible clai m to having been denied an effective opportunity to prepare a defens e. Although there was no cons piracy charged in this case, the testimony at the preliminar y hearing, as well as the fact that Deshawn was one of six codefendants charged with assault by means of force likely to produce great bodily injury, was sufficient to put him on notice that he could be tried as a direct participant or as an aider and abettor. The testimony from the preliminary hearing was almost identical to that presented at trial, namely that De shawn: (1) was seen jumping out of a Camry with several other young men, including Lama r, to join the melee, (2) was overheard saying to the members of this group that the fight should be “one on one,” (3) was involved in the fight, though no one saw him actually hit or kick Mata, (4) fled from the police after the black Charger was stopped near the scene of the fight, and, following his apprehension, (5) had the victim ’s blood on his shoes.
As noted in People v. Lucas (1997) 55 Cal.App.4th 721, 737, “direct perpetrators and accomplices have long been treated by st atute as principals equally liable under the17 law (§§ 31-32) and since a statute specifies that allegations of principal status suffice to proceed on accomplice th eories (§ 971), case law has long held due process notice satisfied as to defendants pros ecuted as aiders and abettors [citation], accessories after the fact [citation] or conspirators.” Accord ingly, given the evidence presented at the preliminary hearing, Deshawn ha d sufficient notice that he coul d be found liable as either a direct participant or as an aider and abetto r of the assault on Mata and we conclude the instructions on aider and abettor liability, firs t requested following the close of evidence, did not deprive Deshaw n of due process. C. Admission of Greer ’ s phone conversati on against Lamar
Lamar contends the trial court erred in in structing the jury that Greer’s jailhouse telephone conversation could be considered as evidence of Lamar’s guilt. The court found the statement was nontestimonial and, th ough hearsay, admissible as a declaration against penal interest. Lamar concedes that the statement was n ontestimonial and limits his challenge to its admission under the declar ation against interest exception. We agree that the statement was nontestimonial, but disa gree that the trial court erred in permitting it to be used against Lamar. A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. C onst., 6th Amend.; Cal. Const., art. I, § 15.)

In Crawford v. Washington (2004) 541 U.S. 36 ( Crawford ), the United States Supreme Court held that, under the confrontation clau se, “[t]estimonial statements of witnesses absent from trial” are admissible “only wh ere the declarant is unavailable, and only where the defendant has had a prior opportuni ty to cross-examine [the witness].” ( Id . at p. 59.) However, “[u]nder Crawford , . . . the Confrontation Clause has no application to [out-of-court, nontestimonial statements not subject to prior cross-examination] and therefore permits their admission even if they lack indicia of reliability.” ( Whorton v. Bockting (2007) 549 U.S. 406, 420; see also Davis v. Washington (2006) 547 U.S. 813, 821.) “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’18 design to afford the States fl exibility in their developmen t of hearsay law . . . .” ( Crawford , supra , at p. 68.) The veracity of nontestimonial hearsay statements is sufficiently dependable to
allow the untested admission of such statements agains t a defendant when (1) the evidence falls within a firmly rooted hearsay exception or (2) the evidence contains “particularized guarantees of trustworthine ss” such that adversarial testing would be expected to add little, if anything, to the statements’ reliability. ( Ohio v. Roberts (1980) 448 U.S. 56, 66; Crawford , supra , 541 U.S. at p. 68.) In Lilly v. Virginia (1999) 527 U.S. 116 ( Lilly ), a plurality of the court held that “a ccomplices’ confessions that inculpate a
criminal defendant are not with in a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” ( Id . at p. 134.) “This, of course, does not mean, . . . that th e Confrontation Clause imposes a ‘blanket ban on the government’s use of [nontestifying] accomplice statements that incriminate a defendant.’ Rather it simply means that the government must satisfy the second prong of
the Ohio v. Roberts , 448 U.S. 56 (1980), test[, that the statements bear a particularized guarantee of trustworthiness,] in order to introduce such statements.” ( Id at p. 134, fn. 5.) On appeal, we conduct a de n ovo review to determine whethe r that trustworthiness test has been satisfied. ( Id . at pp. 136-137.) “In California, ‘[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissi ble by the hearsay rule if the declarant is unavailable as a witness and the statement, wh en made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have
made the statement unless he believed it to be true.’ ([Evid. Code,] § 1230.) The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant’s penal in terest when made and that the declaration was sufficiently reliable to warrant admi ssion despite its hearsay character.” ( People v.

Duarte (2000) 24 Cal.4th 603, 610-611.) “ ‘To determine whether [a particular]19 declaration [against penal interest] passes [Evidence Code] [section 1230’s] required threshold of trustworthiness, a trial court “m ay take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.” ’ [Citation.] We have recognized that, in this context, assessing trustworthine ss ‘ “requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.” ’ ” ( Id . at p. 614.)
“There is no litmus test for the determin ation of whether a statement is trustworthy
and falls within the declarati on against [penal] interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the po ssible motivation of the declarant, what was actually said by the declarant and anyt hing else relevant to the inquiry.” ( People v. Greenberger (1997) 58 Cal.App.4th 298, 334 ( Greenberger ).) “When examining what was actually said by the declarant special atte ntion must be paid to any statements that tend to inculpate the nondeclarant. This is so because a statement’s content is most reliable in that portion wh ich inculpates the declarant. It is least reliable in that portion which shifts responsibility. C ontroversy necessarily arises when the declarant makes
statements which are se lf-inculpatory as well as inculp atory of another. This is why
Evidence Code section 1 230 only permits an ex ception to the hearsay rule for statements that are specially disserving of the declarant’s penal interest. [Citation.] This is not to say that a statement that incr iminates the declarant and also inculpates the nondeclarant cannot be specifically disserving of the declarant’s penal interest. Such a determination necessarily depends upon a care ful analysis of what was sa id and the totality of the circumstances.” ( Id . at p. 335.) The Court of Appeal in Greenberger considered out-of-court statements made by some defendants implicating other defendants. The court held that “a defendant’s20 declarations against [penal] in terest may be received in a joint trial without denying the codefendant the right of confrontation guara nteed by the United St ates Constitution.” ( Greenberger , supra , 58 Cal.App.4th at p. 314.) “Sin ce declarations against [penal] interest may be admitted in evidence without doing violence to the confrontation clause, we see no reason why such declarations, when made by a codefendant, should not also be admissible.” ( Id . at p. 332.)

In People v. Cervantes (2004) 118 Cal.App.4th 162 ( Cervantes ), a nontestifying codefendant, Morales, incu lpated himself and his two codefendants, Cervantes and Martinez, in a murder and an attempted murd er while speaking to a friend of all three defendants, Ojeda. ( Id . at pp. 166-167.) On appeal th e two codefendants contended that
Morales’ statement to the friend should have been excluded. ( Id . at p. 169.) The appellate court found that the trial court did not err in adm itting evidence of the statement at the defendants’ joint trial. Following Greenberger , the court found that the statement qualified as a declaration against penal interest and satisfied the constitutional standard of trustworthiness. ( Id . at p. 177.) “The evidence here showed Morales made the statement
within 24 hours of the sh ooting to a lifelong friend fro m whom he sought medical treatment for injuries sustaine d in the commission of the offenses. . . . Regarding the content of the statement, Morales did not a ttribute blame to Cervantes and Martinez but accepted for himself an active ro le in the crimes and descri bed how he had directed the activities of Martinez.” ( Id . at p. 175.) “Ojeda consistently reported that Morales admitted shooting at the second male with Cerv antes. The statement Cervantes shot the first male, as well as the statement Morales shot at the second male, both incriminated Morales because Morales was acting in concert with Cervantes at all relevant times. Thus, the discrepancies in the statement as re peated by Ojeda does not preclude a finding the statement was trustworthy.” ( Id . at p. 176.) “Regarding the claim the statement
should have been redact ed to exclude reference to the nondeclarants, Greenberger specifically held this is not required wher e the statement admitte d into evidence is21 disserving to the interests of th e declarant. We agree with Greenberger ’s analysis on this point.” ( Ibid .) Here, the statement by Greer implicated hi mself, as well as his codefendants, in the beating. The statement was not made to the police during questioning and in the statement Greer made no effort to mitigate his own conduct or shift the blame. The statement itself was, overall, extremely vagu e and offered no details about the event. Greer did not name anyone, nor did he set fort h what role any particular person played in the attack. All he said was “We, we did so mething and we’re trying to prove that we didn’t do nothing. You know, it’s just go nna look a whole lot uglier.” “[T]he most
reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures.” ( Greenberger , supra , 58 Cal.App.4th at p. 335; Cervantes , supra , 118 Cal.App.4th at p. 175.) After independently reviewing the record, we find that the statements Greer made in the jailhouse telephone call to Legg ett bore a particularized guarantee of trustworthiness. Accordingly, admission of those statements against Lamar did not violate the federal or state Constitutions or state law. ( Lilly , supra , 527 U.S. at pp. 136- 137; Ohio v. Roberts , supra , 448 U.S. at p. 66; Cervantes , supra , 118 Cal.App.4th at p. 177.)
III. D ISPOSITION With respect to Lamar Landry and Eric Greer, the judgments are affirmed. As to Deshawn Landry, the judgment is re versed. The trial court is directed to reinstate the judgment with th e following modification: the allegation that Deshawn Landry personally inflicted grea t bodily injury on Anthony Mata (Pen. Code, §§ 12022.7, subd. (a), 1203, subd. (e)(3)) is not true. Following reinstatement of the modified judgment, Deshawn Landry is to be arraigned for resentencing.Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.