Filed 1/7/15 P. v. Montoya CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
LETICIA MARIE MONTOYA, et al.,
Defendants and Appellants. B243042
(Los Angeles County Super. Ct. No. PA066801)

APPEALS from a judgment of the Supe rior Court of Los Angeles County, Beverly R. O’Connell, Judge. Modified and affirmed. Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant Leticia Montoya. Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant Sergio Flores. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant A ttorney General, Margaret E. Maxwell, Joseph P. Lee, and Yun K. Lee, Deputy Attorn eys General, for Plaintiff and Respondent.



### _____________________________2 Defendants Leticia Montoya and Sergio Fl ores were each charged with one count of willful, deliberate and premeditated murder (Pen. Code, § 187 (count 1)), 1 and one count of shooting from a motor vehicle (former §12034, subd. (c) (count 3)). 2 In addition, Flores was charged with one co unt of unlawful firearm activity (former § 12021, subd. (c)(1) (count 2)). 3 Firearm allegations were included in counts 1 and 2 (§§ 12022.53, subds. (b), (c), (d), (e)(1)), an d criminal street gang allegations were included in counts 1 and 3 (§ 186.22, subd. (b)(1)(c)). In a jo int trial to separate juries, defendants were convicted on all counts, with sustained findings on the firearm and criminal street gang allegations. 4 Each defendant appeals from the judgment. We modify the judgment as to cu stody credits. The judgment, as modified, is affirmed.

FACTUAL AND PROCED URAL BACKGROUND At about 2:00 a.m. on December 28, 2008 , Kevin Montenegro, Nick Perez, and Abraham Guerrero were standing outside Guerrero’s house on Correnti Street in
Pacoima. A white car drove by the house, made a U-tu rn, and returned with its headlights off. A rifle was protruding from the front passenger window. The car stopped

1 Unless otherwise indicated, all further stat utory references are to the Penal Code.

2 Former section 12034 is presently found at section 26100, subdivision (c). The statute provides: “Any person who willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of a motor vehicle is guilty of a felony punishable by imprisonm ent in state prison for three, five, or seven years.”

3 Former section 12021, subd ivision (c)(1) is presently found at section 29805.

4 Montoya also was found to have suffe red a prior prison term. She received a sentence of 51 years to life, cons isting of 25 years to life for mu rder (count 1), 25 years to life for the gang and firearm enhancements (§§ 186.22, subd. (b)(1)(C), 12022.53, subd. (d)), and one year for the prior prison term (§ 667.5, subd. (b).) The sentence on count 3, shooting from a motor vehicle, was stayed under section 654. Flores received a sentence of 50 years a nd 8 months to life, c onsisting of 50 years to life for the murder conviction, gang and firearm e nhancements (count 1), plus a consecutive 8-month term for the unlawful fi rearm activity conviction (count 2). The sentence on count 3, shooting from a motor ve hicle, was stayed under section 654.3 and the front passenger asked the men where they were from. Perez replied, ‘“We are not from anywhere.”‘ Perez grabbed the barrel of the rifle and tried to wrestle it away. Three or four shots were fired, and Perez let go of the barrel. Guerrero was shot in the arm and chest, and died from his injuries. Later that night, Perez told police the shoote r was a bald male with facial hair and big eyes. Perez also said th e shooter might have been we aring a “hoody.” Two days after the shooting, Montenegro and Perez work ed with a police sketch artist to create a composite sketch of the shooter. Several we eks after the shooting, Montenegro and Perez were shown a phot ographic lineup that included Flores . They each identified Flores as the possible shooter, but neither was certain of his identification. Several months later, Montenegro and Perez identified Flores as the possible shooter during a live lineup; again, neither was certain of his identification. Montenegro and Perez identified Flores as the shooter at both the preliminary hearing and trial. At trial, Montenegro testif ied that he was “sure” of his identification of Flores, and Perez testified that he was “80 percent” certain of his identification of Flores. Perez explained that his degree of certainty had grown from 50 percent at the preliminary hearing to 80 percent at trial be cause “I don’t think it’s a coin cidence that the sketch that we did looks like him. The picture that I wa s shown looks like the guy. I picked him out, and the lineup again.” Both Montenegro and Perez testified that the composite sketch, which was presented as an exhibit at tria l, accurately depicted the shooter. On cross-examination, Perez testified th at of the individuals depicted in the photographic lineup, Flores had the shorte st hair and the only moustache, and was wearing a hoody. Montenegro testified on cr oss-examination that Flores was the only individual who had appeared in both the photographic and live lineups. The eyewitness identifications of Flor es were buttressed by testimony of an informant, Jose Andalon, the purported s hot-caller for the Paco ima Southside Locos (PSSL) gang. Andalon testified against both defendants in this ca se, in exchange for dismissal of numerous charges and a favorable sentence in his unrelated burglary case. Both juries were informed of Andalon’s criminal background and plea agreement.4 A. Andalon’s Testimony
Andalon testified that he was a founding member of the Little Pacoima gang,
which became affiliated with the PSSL gang (joi ntly, the PSSL gang ). Andalon claimed to be the PSSL gang’s shot caller (i.e., the person who decides what crimes to commit) when this shooting occurred. He identified Montoya and Flores as members of that gang, and said he loved Montoya—a trusted member of the gang—like a sister. The PSSL’s rival gang is the Pacoima Van Nuys Boys (PVNB) gang and its clique, Anybody Killer (ABK). Two months befo re the shooting in this case, Flores told
Andalon that he had stabbed a PVNB gang member who wa s chasing him, that other PVNB gang members had followed him home, written on his wall, and were looking for him. One month before the shooting in this ca se, Andalon gave Flores a rifle. In early December 2008, PVNB members shot severa l PSSL members on Wingo Street. The shooting in this case occurre d on December 28, 2008, a fe w weeks after the shooting on Wingo Street. Hours after the shooting in this case, Fl ores called Andalon and said, “I smoked the fools,” meaning he had kille d a rival gang member. Flores told Andalon that after he learned that PVNB or ABK gang members were outside on Correnti Street, they went in Vital Gomez’s car (Gomez is a PSSL gang member) 5 to Correnti Street where some people were standing outside. Flores asked where they we re from, then fired the gun until the clip was empty. The deceased vi ctim, Guerrero, was wearing a hat with the letter “A,” which is the insignia of the ABK gang . Flores said that he had gotten back for what they had done to him. After receiving this news, Andalon imme diately called Montoy a at her workplace to say, “what the fuck happen ed?” Montoya said she coul d not talk on her work phone,
so Andalon called her back on her cell phone. Montoya told Andalon that while she and

5 After the shooting in this case, polic e searched Gomez’s car, a white Chevy Malibu, and recovered a .22 caliber long rifle bullet. The bullet was consistent with the bullet fragment recovered fro m Guerrero’s body.5 Flores were “getting high on PCP,” they disc ussed the shooting on Wingo Street and the incident where Flores got “jumped.” They bo th felt they had to do something, and they
walked to Flores’s house where Flores retr ieved the rifle. Th ey walked back to Montoya’s house, carrying the rifle between th em “like they were a couple, hugging.” When they arrived at her house, they le arned that PVNB or ABK gang members “were hanging out outside on Correnti.” Montoya took Gomez’s car keys and drove Flores, who was in the front seat, and Jose Euyoque (k nown as Gordo), who was in the back seat, to Correnti Street. Montoya made a U-turn, turned off the headlights, and drove up to a group of people in front of a house. Flores “got out, told them wh ere they were from. Before he even answered, he pulled the trigger and shot them.” On the way home, Montoya damaged Gomez’s car by hitting a curb. Andalon told Montoya that she “didn’t need to do that shit.” Montoya replied that she knew what she was doing and was a grown woman. Later that day, Flores gave Andalon more details about the shoot ing. Flores said that he and Montoya “were getting high,” th ey “walked from his house” with the “gun between them,” and they learned “that th e Van Nuys Boys or ABK were outside on Correnti, which is where they hang out at.” They drove to Correnti Street in Gomez’s car, and saw some people outside. Flores “pulle d the trigger. He said he didn’t know the gun was automatic,” and he fired un til “the whole clip went out.” Andalon testified that he was in charge of the gang when the shooting occurred, but denied ordering the shooting. The gang had agreed to keep the shooting a secret after learning that Guerrero, the victim, was a “ police explorer” and “it was a big deal.”
Andalon claimed that because he had snitched on defendan ts, there was a “hit” on his life, and his family members would have to relocate.6 B. Montoya’s Custodia l Statement to Police When Montoya was arrested and interviewe d about this shooting, she gave a taped statement that was played at tria l for her jury only. During the interview, Montoya stated that on the night of th e shooting, Gomez, Gordo, Flores, and three girls had been at her house. She walked with Flores to his house
and waited outside while he we nt inside to get money. They then walk ed back to Montoya’s house. Montoya drove Gordo and Fl ores in Gomez’s car to buy some beer. Flores was in the front passenger seat. She did not see a gun. Flores said that he wanted to find “Ducky,” and told her where to turn. (“Ducky” was a member of ABK and lived in PSSL territory.) When Mont oya turned onto Corre nti Street, she saw a group of men. Flores exchanged words with someone. Multiple gunshots were fired from the passenger’s side of the car. She drove away and damaged the car while returning home. When they returned to her house, Montoya aske d Gordo and Flores “what the fuck” happened. Gordo stated, “You let him have it,” and Flores answered, “Yeah, it got
stuck.” Flores told Gordo that the victim wa s not Ducky. Flores gave Gordo the gun so he could get rid of it. Later, they had a me eting at which Gordo told everyone to keep quiet about the shooting. Montoya said that she was worried about people thinking she was a snitch, but she was “not goin g to go down for this shit.” C. Flores’s Defense Evidence Flores sought to impeach the prosecu tion’s eyewitness iden tification evidence through the testimony of Dr. Mitchell Eisen, a psychologist. Dr. Eisen testified that
memories can be altered over time for va rious reasons. He was presented with a hypothetical that mirrored the process thr ough which Montenegro and Perez eventually
identified Flores as the shooter in this case. Based on the hypothetic al, Dr. Eisen testified that when a witness assists in creating a composite sketch, and selects a suspect who resembles the composite sketch from a photographic lineup, the witness’ subsequent identifications of the same susp ect could be influenced by th e witness’ desire to remain consistent and by the “carry over effect” of seeing a familiar face from an earlier photographic lineup.7 Officer Pedro Cabunoc testified that wh en Andalon was arrested for burglary in October 2008, Andalon had sought to provide informati on on another matter. Andalon
told Cabunoc that he was “just trying to see if I can get out of this.” Detective Joshua Byer testified that when Andalon was first interviewed concerning this case, Andalon said that an unknown Malibu car was us ed in the shooting, that Flores was alone, and he did not know where Flores had obtained the gun. At the next interview, Andalon said that Flores wa s with Montoya during the shooting, the car was Gomez’s, and Andalon had given the gun to Flores. Corina Flores, the mother of Flores’s children, testified that Flores was at her house at the time of the shooting, and that Fl ores never brought a gun to her house. She denied that Flores was living with his mo ther on Osborne Street at the time of the shooting. D. Montoya’s Defense Evidence Montoya presented evidence that sh e had tested negative for drugs on 24 occasions between February 2008 and February 2009. Ho wever, she did not test for drugs between December 25 and 30, 2008. Montoya’s employer, Rogelio Flores, tes tified that in December 2008, Montoya was working for a graffiti removal organiza tion. Montoya’s cowo rker, Otto Portillo, testified that Montoya had asked him to remove PSSL graffiti in Pacoima on many
occasions. As to Andalon’s alleged telephone conv ersation with Montoya, the store manager for AT&T in Panorama City—Antonio Alvara do—testified that AT &T did not have a record of a call between ph one numbers ending in 7711 a nd 1228, during the period December 26, 2008, to January 9, 2009. Ho wever, because a business may have several routing phone numbers, it was possible that a call made to the 7711 number could have appeared on the statement as a different number.8 DISCUSSION While this case was pending, the Californi a Supreme Court issued its opinion in People v. Chiu (2014) 59 Cal.4th 155 ( Chiu ), which addressed the natural and probable consequences doctrine and related pattern jury instruction. In light of that ruling, we vacated the submission of this matter and reque sted further briefing by the parties on the application of the Chiu decision to this case. 6 We received and considered those letter briefs, and rescheduled the matter for oral argument. In part I of the discussion, we address Flores’s contentions, including his claim of instructional error regarding the natural and probable consequences doctrine. In part II, we address Montoya’s argument concerning the same instructional error. In part III, we discuss custody credits.
I A. Montoya’s Extrajudicia l Statements to Andalon
There was evidence that M ontoya told Andalon that she wanted to do something about a prior shooting on Wingo St reet; she went with Flores to get the gun; she got the keys to a car and drove Flores to look for rival gang members on Correnti Street; she drove past a house where she saw a group of people, circled back w ith the headlights off, and stopped the car while Flores shot at th em; and after the shoo ting, she drove them back to her house. Flores argues these stat ements were inadmissible hearsay and should
have been excluded under Ev idence Code section 352. Respondent argues the statements were properly admitted under the declaration against interest exception to th e hearsay rule. The excepti on, in Evidence Code section 1230, provides in relevant part: “Evidence 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

6 The parties do not dispute that Chiu is retroactive and applie s to this case. The decision changed the law by disapproving the use of the natural and probable consequences theory as a basis to elevate murd er to first rather than second degree. (See In re Johnson (1970) 3 Cal.3d 404, 410–411 [retroac tivity of decisions announcing a new rule of law].)9 unavailable as a witness and the statement, wh en made, . . . so far subjected him to the
risk of civil or criminal liab ility, . . . that a reasonable man in his position would not have
made the statement unless he believed it to be true.” Both parties agree that Montoya was unavailable as a witness for purposes of Evidence Code section 1230. ( People v. Leach (1975) 15 Cal.3d 419, 438 ( Leach ).) They also agree that no reasonable pe rson in Montoya’s position would admit to participating in a drive-by shooting that he or she did not commit. The parties disagree, however, as to the admissibility of the portions of Montoya’s statements that implicated
Flores.
1. Evidence Code Section 1230 Flores contends that Montoya’s statem ents regarding his involvement in the shooting were inadmissible be cause they were not specific ally disserving to Montoya’s
interests. His contention is based on the Supreme Court’s statement in Leach , that “[i]n the absence of any legislative declaration to th e contrary, . . . the ex ception to the hearsay rule relating to evidence of declarations agains t interest set forth in section 1230 of the Evidence Code [is] inapplicable to evidence of any statement or portion of a statement not itself specifically disservi ng to the interests of the declarant .” ( Leach , supra , 15 Cal.3d at p. 441–442, fn. omitted, italics added.) When deciding whether such statements are admissible under Evidence Code section 1230, the trial court must make “a careful analysis of what was said and the totality of the circumstances. ( People v. Wilson [(1993)] 17 Cal.App.4t h [271,] 276 [‘The fact that the statement is also disserving to [nondeclarant] does not render the statement unreliable and inadmissible. . . .’]; United States v. Sasso [(2d Cir. 1995)] 59 F.3d [341,] 349; People v. Gordon [(1990)] 50 Cal.3d [1223,] 125 2–1253 [overruled on other grounds in People v. Edwards (1991) 54 Cal.3d 7 87, 835].)” ( People v. Greenberger (1997) 58 Cal.App.4th 298, 335 ( Greenberger ).)
“There is no litmus test for the determin ation of whether a statement is trustworthy
and falls within the declaration against interest exception. The trial court must [consider factors such as] whether the declarant sp oke from personal knowledge, the possible10 motivation of the declarant, wh at was actually said by the declarant and anything else relevant to the inquir y. [Citations.]” ( Greenberger , supra , 58 Cal.App.4th at p. 334.)
In Greenberger , a police informant secretly reco rded his private conversations with defendants Mentzer and Lowe, who each ma de statements that were self-inculpatory and inculpatory of a codefendant. In conc luding their statements were admissible as declarations against interest, we noted that “the most reliable circumstance is one in
which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.]” ( Greenberger , supra , 58 Cal.App.4th at p. 335

. ) Although self-inculpatory statements are generally more reliable than those that shift responsibility to others ( Greenberger , supra , 58 Cal.App.4th at p. 335), a statement that is inculpatory of another person is no t necessarily unreliable. For example, in People
v. Wilson , supra , 17 Cal.App.4th 271, the defendant to ld his wife (Mrs. Wilson) “that the gun ‘he had used to shoot the Mexica ns’ was hidden in the bushes.” ( Id. at p. 276.) Mrs. Wilson reported the defendant’s statemen t to police, and her statement (which incorporated the defendant’s statement) was admitted at trial. In affirming the defendant’s conviction, th e court found the statemen t met the requirements for declaration against interest ex ception because it placed her at ri sk of being charged as an accessory. The fact that her statement also was disserving to the defendant’s penal
interest did not render the statem ent unreliable and inadmissible. ( Ibid. )
In People v. Cervantes (2004) 118 Cal.App.4th 162 ( Cervantes ), defendant
Morales made statements to a friend that we re self-inculpatory and inculpatory of his
codefendants. The friend testified to Morale s’s statements, which were admitted at trial as declarations against interest. The appella te court affirmed, finding the statements met the requirements of Evidence Code section 1 230 because they subjected Morales “to the risk of criminal liability to su ch an extent that a reasonabl e person in his position would
not have made the statement unless he believed it to be true.” ( Id. at p. 175.)
In People v. Arauz (2012) 210 Cal.App.4th 13 94, a jailhouse conversation
between defendant and his cellmate was secr etly recorded. Defe ndant’s statements, which were self-inculpatory and inculpatory of a codefenda nt, were admitted at a joint11 trial as declarations against interest. In affi rming that ruling, the appellate court found the statements were specifically disserving of th e declarant’s penal interests and, because they were not testimonial, they were not subject to the Confrontation Clause. ( Id

. at p. 1397.) In this case, Montoya’s statements to Andalon were made during a private telephone conversation. Montoya discussed Flores’s role in th e shooting, which she personally witnessed, but did not attempt to shift blame from herself. On the contrary, she freely and openly discussed her desire to respond to a prior gang shooting; her active role in obtaining the gun, the car key, and driving the vehicle used in the shooting; and her capacity as a grown woman to make her own decisions. Under the circumstances, we find Montoya’s statements were highly incu lpatory and no reasonable person in her position would have made them unless he or she believed they were true. We therefore
conclude that her statements “bear sufficient indicia of trustworthin ess and fall within the declaration against interest exception.” ( People v. Arceo (2011) 195 Cal.App.4th 556, 577 ( Arceo ).) Finally, we address the issue of prejudice. Even if we were to find that Evidence
Code section 1230 di d not apply to Montoya’s extrajudici al statements, we would find no prejudice. ( People v. Watson (1956) 46 Cal.2d 818, 836 [a miscarriage of justice should be declared only when the court, after examin ing the entire cause, in cluding the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appellant
would have been reached in the absence of the error]; People v. Duarte (2000) 24 Cal.4th 603, 618–619 [ Watson standard applies to erroneous admission of hearsay].) We are not persuaded that the exclusio n of Montoya’s statements would have
resulted in a more favorable outcome for Fl ores. Perez and Montenegro independently identified Flores as the shooter. Their percip ient identification test imony, Flores’s selfincriminating statements to Andalon, and the physical evidence—the discovery of a bullet (matching the type of bullet found in the victim’s body) in Gomez’s car—provided sufficient independent ev idence of Flores’s guilt to sust ain his conviction. On this12 record, it is not reasonably pr obable that Flores would have obtained a more favorable
result if the statements had been excluded.
2. Confrontation Clause Having determined that Montoya’s statem ents were admissible as declarations against interest, we next consider Flores’s Confrontation Clause claim. The dispositive issue is whether Montoya’s statements to A ndalon were testimonial . As explained in Davis v. Washington (2006) 547 U.S. 813, only tes timonial evidence can cause a
declarant to be a witness within the meaning of the Confrontation Clause. ( Id. at p. 828.) The Confrontation Clause does not apply “t o out-of-court nontestimonial statements ( Whorton v. Bockting (2007) 549 U.S. 406, 420; People v. Gutierrez (2009) 45 Cal.4th 789, 812, including statements by codefendants. [Citations.])” ( Arceo , supra , 195 Cal.App.4th at p. 571; Cervantes , supra , 118 Cal.App.4th at p. 177 [codefendant’s nontestimonial statement was properly adm itted against defendants, because statement qualified as declaration against interest and satisfied constitutional standards of trustworthiness.].) Although it is clear the Confrontation Clau se applies only to testimonial evidence, the Supreme Court has not provided a comprehensive definition of the term
“testimonial.” The Court has ac knowledged this, stating: “W here testimonial evidence is at issue, . . . the Sixth Amendment de mands what the common law required: unavailability and a prior opport unity for cross-examination. We leave for another day any effort to spell out a comprehensive defi nition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminar y hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abus es at which the Con frontation Clause was directed.” ( Crawford v. Washington (2004) 541 U.S. 36, 68.) Notwithstanding the lack of a comprehens ive definition, we have found no cases, nor have the parties cited an y, that hold a private convers ation between friends to be testimonial. We are satisfied that Montoy a’s extrajudicial statements would not be deemed testimonial even under a very broad definition of that term.13 Because the Confrontation Clause does no t apply to nontestimoni al statements, we
conclude that redaction of Flores ’s name was not required under Bruton v. United States (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518. ( Arceo , supra , 195 Cal.App.4th at p. 571 [ Bruton rule, like Confrontation Clause, does not apply to nontestimonial statements]; Cervantes , supra , 118 Cal.App.4th at pp. 176–177 [same]; Greenberger , supra , 58 Cal.App.4th at p. 332 [same].) B. Accomplice Instruction
Flores contends that because Andalon is an accomplice, and because a conviction
cannot be sustained on uncorro borated accomplice testimony ( People v. Garcia (2000) 84 Cal.App.4th 316, 325), the trial court was required to pr ovide a cautionary instruction on its own motion regarding accomplice testimony. Generally, “an instruction on accomplice testimony must be gi ven on the court’s own motion when the accomplice is called solely by the prosecution. [Citations.]” ( People v. Guiuan (1998) 18 Cal.4th 558, 566 .) A witness is an ac complice if he or she “‘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.’ [Citations.]” ( People v.
Felton (2004) 122 Cal.App.4t h 260, 268, quoting People v. Arias (1996) 13 Cal.4th 92, 142–143.) In this case, Andalon provided the murder weapon to Flores a month before the shooting, but there is no evid ence that he knew Flores in tended to kill someone with it
then or a month later. “It is well settled that aiding and abetting the commission of a crime requires some affirmative action. Th e mere knowledge or belief that a crime is being committed or likely to be committed, and the failure on the part of the one having such knowledge or belief to take some steps to prevent it, in no sense amounts to aiding and abetting.” ( People v. Weber (1948) 84 Cal.App.2d 126, 130.) “‘Providing assistance without sharing the perp etrator’s purpose and intent is insufficient to establish that a person is an accomplice.’ [Citati ons.] An accomplice must ‘ share [] the perpetrator’s criminal purpose ’; even providing ‘assistance with knowledge of the perpetrator’s14 criminal purpose’ is insuffi cient. [Citation.]” ( People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 430.) Under the circumstances, we are not pe rsuaded that providing the murder weapon to Flores one month before the killing made An dalon an accomplice as a matter of law. At most, Andalon is a possible accomplice in li ght of his testimony that he was in charge of the gang when the killing o ccurred. Whether he intended to aid and abet the shooting of Guerrero is a question of fact. Given An dalon’s express denial that he ordered the shooting, the record does not establish that he is an accomplice as a matter of law. In any event, even if we assume that Andalon is an accomplice, “[a] trial court’s failure to instruct on accompli ce liability under section 1111 is harmless if there is ‘sufficient corroborating evid ence in the record.’ ( People v. Lewis (2001) 26 Cal.4th 334, 370.) To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to co nnect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is suffi cient if it tends to implicate the defendant and thus relates
to some act or fact that is an element of the crime. [C itations.] ‘“[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’ [Citation.]” ( People v. Avila (2006) 38 Cal.4t h 491, 562–563.) As discussed, Perez and Montenegro independently identified Flores as the shooter. Their testimony, coupled with the physical evidence—the discovery of a bullet (which matched the type of bullet found in th e victim’s body) in Gomez’s car (which fit the description of the vehicle used in the shooting)—provided sufficient corroboration to cure the alleged instructional error. Flores also contends the court erred by failing to instruct, sua sponte, that Montoya was an accomplice whose extrajudicial statemen ts required corroboration and were to be
viewed with caution. In People v. Brown (2003) 31 Cal.4th 518, 555–556, the Supreme
Court held that where an accomplice’s extrajudicial statements were made under conditions sufficiently trustworthy to permit their admission into evidence despite the hearsay rule—namely, they were declarations against intere st—the court is not required15 to instruct the jury to view the accomplice’s extrajudicial statements with caution and to require corroboration. As we have discu ssed, Montoya’s statemen ts to Andalon were properly found to be declara tions against penal interest. (Evid. Code, § 1230.) Where that is the case, the usual problem with acc omplice testimony—that it is self-interested and shifts blame to codefendants—is not pr esent, and the instruction on accomplice testimony is not required. ( Brown , supra , 31 Cal.4th at pp. 555–556.) In any event, “‘[a] trial court's failure to instruct on accomplice liability under
section 1111 is harmless if there is suffici ent corroborating eviden ce in the record. [Citation.] “Corroborating evidence may be s light, may be entirely circumstantial, and
need not be sufficient to esta blish every element of the charged offense. [Citations.]”
. . . The evidence “is sufficient if it tends to connect the defe ndant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” [Citation.].’ ( People
v. Lewis (2001) 26 Cal.4th 334, 370.)” ( Brown , supra , 31 Cal.4th at p. 556.) Even if we were to assume the trial court erred by failing to instruct sua sponte on accomplice testimony, the error was harmless for the reasons previously discussed.
C. Natural and Probable Consequences Instruction
The trial court instructed th e jury that if it found Flor es guilty of murder, it must
decide whether the crime was first or second degree murder. The jury was informed that the prosecution was pursuing two theories of fi rst degree murder: willful, deliberate, and premeditated murder, and murder committed by shooting a firearm from a motor vehicle. In addition, the jury for Flores was in structed that the prosecution was “relying upon the natural and probable consequences theory.” It received an instruction that, “Under the natural and probable consequences theory of murder, be fore you may decide whether the defendant is guilty of murder, you must decide wh ether he is guilty of assault with a deadly weapon. [¶] To prove that the defendant is guilty of murde r, the People must prove that: [¶] 1. The defendant is guilty of assault w ith a deadly weapon; [¶] 2. During the commission of assault with a deadly weapon a co-particip ant in that assault with a deadly weapon committe d the crime of murder; and [¶] 3. Under all of the circumstances, a reasonable person in the de fendant’s position would have known that16 the commission of the murder was a natural and probable consequence of the commission of the assault with a deadly we apon.” The term “co-participa nt” was defined as either the “perpetrator or anyone who aided and abette d the perpetrator. It does not include a victim or innocent bystander.” As we have discussed, in Chiu the Supreme Court held th at “an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liab ility for that crime must be based on direct aiding and abetting princi ples. [Citation.]” ( Chiu , supra , 59 Cal.4th at p. 158–159.) Flores, who was tried as the perpetrator who fired the fatal shots, was not tried on a theory of aiding and abetting. The instruction did not apply si nce Flores, if guilty at all, was the shooter. Accordingly, we agree with his contention that the instruction on the natural and probable consequen ces doctrine, which applies to aiders and abettors, should not have been given. But any error was harmless under any standard. According to Chiu , “[w]hen a trial court instructs a jury on two theories of guilt, one of which was legally correct and one le gally incorrect, reversal is required unless
there is a basis in the record to find that the verdict wa s based on a valid ground. ( People
v. Guiton (1993) 4 Cal.4th 1116, 1128–1129; People v. Green (1980) 27 Cal.3d 1, 69–71 [overruled on another ground in People v. Martinez (1999) 20 Cal.4th 225, 234].)” ( Chiu , supra , 59 Cal.4th at p. 167.) In this case, the jury was properly instructed that “[a] defendant is guilty of first degree murder if the People have proved that he or she ac ted willfully, deliberately and with premeditation. The defendant acted willfu lly if he or she inte nded to kill. The defendant acted deliberately if he or she car efully weighed the considerations for and against his or her choice and, knowing the co nsequences, decided to kill. The defendant acted with premeditation if he or she decided to kill before completi ng the act that caused death.” In closing argument, the prosecutor argued that the jury could convict Flores of first degree murder under either one of two theories—“willful, deliberate and premeditated first degree murder,” or “shoo ting from a motor vehicl e”—and so long as17 all 12 jurors found Flores guilty under e ither of those theori es, nothing more was required. The record contains ample support fo r Flores’s convicti on under the legally correct theory of willful, deliberate, and prem editated murder. The record also contains ample support for Flores’s conviction under section 189, which provides that “any murder which is perpetrated by means of di scharging a firearm from a motor vehicle, intentionally at another person out side of the vehicle with the intent to inflict death, is murder of the first degree.” As previously mentioned, the evidence showed that afte r discussing the need to do something about the prio r shooting by a rival gang on Wi ngo Street, Flores and Montoya went to his house to retrieve a rifle, which th ey brought back to her house. Upon learning that rival gang members were standing outsid e on Correnti Street, they drove to that street and saw several men, including one (Guerrero) who wa s wearing a cap with a rival gang’s insignia. Flores fired shots at the group, killing Guerrero. Flores was positively identified by Montenegro a nd Perez—in a photographic lineup, a live lineup, the preliminary hearing, and at trial—as the shoot er in the front passenger seat who issued a gang challenge before firing at them. A key factor in determining whether a defendant acted with premeditation and
deliberation is the extent to which he or she reflected on the decision to kill. ( People v. Nazeri (2010) 187 Cal.App.4th 1101, 1114–1115.) As noted in Nazeri , other courts have
found there was sufficient evidence of premeditation and deliberation where the
defendant entered a house and obtained a steak knife from the kitchen before engaging in a frenzied knife attack ( People v. Perez (1992) 2 Cal.4th 1117), where the defendant returned to his car to get a rifle and ammunition before co mmitting the murders ( People
v. Thomas (1992) 2 Cal.4th 489), and where the defendant committed the additional act of slashing the victim’s throat after th e victim was strangled to the point of unconsciousness ( People v. Lewis (2009) 46 Cal.4th 1255). ( Nazeri , supra , 187 Cal.App.4th at p. 1115.)18 When Flores’s planning activities are meas ured against the activ ities in these other cases, we are satisfied beyond a reasonable do ubt that the jury based its first degree murder verdict on the legally valid theory that Flores committed an intentional, deliberate, and premeditated murder. We concl ude that on this record, any instructional error concerning the natural and probable co nsequences doctrine was harmless under the Chapman standard. ( Chapman v. California (1967) 386 U.S. 18, 22–24 ( Chapman ).)
D. Prosecutorial Misconduct On direct examination, the prosecution’s gang expert, Officer Timo Peltonen, testified that in his opinion, Flores was a me mber of the PSSL gang. When asked to state the grounds for his opinion, Peltonen listed a number of factors—including Flores’s admission that he was a gang member, his gang moniker, his association with known gang members, his gang tattoos—but ended with “ the fact that he committed this murder
in association with two other gang members. ” (Italics added.) Upon defense counsel’s immediate objection, the jury was admonished to disregard Peltonen’s statement that Flores “committed this murder,” which was stri cken from the record. The trial court told the jury that “whether or no t Mr. Flores is guilty of murder is for you to decide.” Outside the presence of th e jury, Flores moved for a mistrial. The trial court denied the motion, stating that the improper la nguage had been stricken and the jury had been instructed to disregard it. The court ordered Peltonen to “refrain from referring to any such conclusion that Mr. Flores murder ed anyone in this case.” There is no indication of any repeat episode or that the matter was referred to by counsel during closing argument. On appeal, Flores contends the pros ecutor committed misconduct in eliciting
Peltonen’s statement that “Flo res committed this murder.” Although Peltonen should not have made the statement, there is no indica tion that the statement was elicited by the prosecutor. Defense counsel’s immediate objec tion was met by the trial court’s swift and proper admonishment to disregard the comment , which was stricken. We conclude that any prejudice from the improper remark wa s cured by the trial court’s timely admonishment. ( People v. Mendoza (2007) 42 Cal.4th 686, 702 [when defendant’s19 objections are sustained and jury is admoni shed to disregard improper comment, it is assumed jury complied and no prejudice resulted].) E. Identification Evidence
Flores contends that his conviction must be reversed for insu fficient identification
evidence. We conclude the eyewitness identification testimony of Montenegro and Perez provided substantial evidence to support his conviction. Flores argues the eyewitness identif ications were unreliable because the photographic lineup was followed by a liv e lineup and he was the only person who appeared in both lineups. Flores’s expert witness, Dr. Eisen, explained the possible problems with eyewitness identifications, including the “carry over effect” of seeing a
familiar face from an earlie r photographic lineup. It is the jury’s role to a ssess the eyewitness identificati ons in light of the composite sketch of the shooter, the six-packs used in the photographic lineups, and Dr. Eisen’s expert testimony. As to Dr. Eisen’s testim ony, the jury was inst ructed that it must consider an expert’s opinions , but need not accept them as true or correct, and should evaluate the believability of an expert w itness like any other witness. As to the hypothetical questions posed to Dr. Eisen, the jury was told to “decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion.” Where, as here, the eyewitness identific ation testimony is believed by the jury, the reviewing court will not reweigh the evidence. ( In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) “‘The strength or weakness of th e identification, the in compatibility of and discrepancies in the testimony, if there were any, the uncertainty of recollection, and the qualification of identity and lack of positiven ess in testimony are matters which go to the weight of the evidence and th e credibility of the witnesses, and are for the observation and consideration, and directed solely to the attention of th e jury in the first instance . . . .’ [Citation.]” ( People v. Mohamed (2011) 201 Cal.App.4th 515, 522.) “[W]hen the circumstances surrounding the iden tification and its weight are explored at length at trial” and the jury believes th e eyewitness identification testimony, that20 evidence is sufficient to prove the defendant’s identity. ( In re Gustavo M. , supra , 214 Cal.App.3d at p. 1497; People v. Anderson (2001) 25 Cal.4th 543, 570–575.)
Flores contends that Andalon’s tes timony was not to be believed because the testimony of a snitch is tainted and unre liable. However, Andalon’s motives and credibility were a jury question, as Flores’s counsel highlighted in closing argument: “It’s Shady [Andalon’s gang monike r]. It’s Shady. It’s Shady. It’s Shady. That’s who did this. And he can’t wait for you to conv ict my client, because now he’s done. And when he’s done with his 12 years, ‘La de da, I skipped out on eleven life sentences.’ It was worth it.” Counsel argued: “It’s [Gomez ’s] car” and “Shady’s gun.” “Notice that Shady protected bot h himself and . . . Gomez. Willing to give everybo dy up, everybody he knows. ‘Lettie [Montoya], I love her,’ bu t she’s gone. Jose Eu yoque, aka Gordo. Friend, but he’s gone. He was there, too.” In this case, the jury was instructed on the factors to be considered in evaluating eyewitness identification testimony. It was al so instructed to cons ider the motives of each witness, including any promise of leniency in exchange for his or her testimony. Where, as here, these issues have been thorou ghly explored at trial, the appellate court will defer to the jury’s factual findings that, as in this case, are supported by substantial
evidence.

II We turn to Montoya’s appeal, which al so challenges the natural and probable consequences instruction in light of Chiu , supra , 59 Cal.4th at p. 158–159. 7 We agree that the natural and probable consequences in struction should not have been given to Montoya’s jury. The issue, accordingly, is whether the error was prejudicial.

7 Montoya’s jury was instructed that a first degree murder conviction under the natural and probable conseq uences doctrine required findings that: (1) Montoya was guilty of the target offense, assault with a deadly weap on; (2) during the commission of the target offense, a co-par ticipant committed the crime of murder; and (3) under all of the circumstances, a reasonable person in Mo ntoya’s position would have known that the commission of the murder was a natural and probable conseque nce of the target offense.21 Montoya’s jury was presented with two th eories of first degree murder: willful, deliberate, and premeditated murder, and mu rder committed by shooting a firearm from a motor vehicle. The prosecu tion argued that Montoya was gu ilty of first degree murder under a direct aiding and abetting theory. In li ght of this theory, the trial court instructed that the prosecution must prove: “1. The perpetrator committ ed the crime; [¶] 2. The defendant knew that the perpet rator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and [¶] 4. The defenda nt’s words or conduct did, in fact, aid and abet the perpetrator’s commissi on of the crime.” Montoya’s jury also was
instructed that in order to aid and abet a crime, the defendant must know of the perpetrator’s unlawful purpose and specifical ly intend to aid, facilitate, promote, encourage or instigate th e perpetrator’s commissi on of that crime. Montoya’s jury received both the lega lly valid theory that a defendant who directly aided and abetted a premeditated mu rder may be convicted of first degree murder, and the legally invalid theory that an aider and abettor may be convicted of first degree premeditated murder under the natura l and probable consequences doctrine. Where, as here, a jury receives instructions on two theories of guilt, “one of which was legally correct and one legally incorrect, revers al is required unless there is a basis in the
record to find that the verdict was base d on a valid ground. [Citations.]” ( Chiu , supra , 59 Cal.4th at pp. 167–168.)
In Chiu , the defendant’s conviction was reve rsed because the record failed to demonstrate that the invalid natural and probab le consequences instruction was harmless. But in this case, the re cord shows that Montoya, if guilty at all, was guilty of first degree premeditated murder. The guilty verdict on count 3, shooting from a motor vehicle, indicates the jury rejected Montoya’s exculpator y account of the shooting (provided during her custodial interview) in favor of her inculpatory statemen ts to her friend Andalon. Her actions were identical to those of Flores, except that she drove the car while he pulled the trigger.
The evidence showed that af ter actively planning and pr eparing to kill rival gang22 members on Correnti Street, Montoya and Flores executed their plan by going to that location and committing a drive-by shooting agai nst suspected rival gang members. By her own conduct and incriminating statements to Andalon, Montoya demonstrated that she possessed the necessary mental state to be convicted of first degree premeditated murder. ( People v. Nazeri , supra , 187 Cal.App.4th at pp. 1114–1115 [premeditation and deliberation are present if the jury could fi nd a sufficient extent of reflection on the decision to kill]; People v. Thompson (2010) 49 Cal.4th 79, 11 8 [evidence supported defendant’s first degree murder conviction ba sed on the theory that defendant aided and abetted a premeditated murder by intentionally maneuvering the victim to an isolated area where defendant and his compani on carried out their plan to rob and kill the victim, using the gun that defendant had s upplied for that purpose].) On this record, we are satisfied beyond a reasonable doubt that the jury based its first degree murder verdict on the legally valid theory that Montoya directly aided and abetted an intentional, deliberat e, and premeditated murder. ( Chapman , supra , 386 U.S. at pp. 22–24.) We conclude the instructional error was harmless.

III Finally, we turn to the i ssue of presentence custody credits. Montoya contends the trial court erroneously faile d to award her any presentence custody credits. (See People
v. Johnson (2010) 183 Cal.App.4th 253, 289 [statuto ry prohibition against work time and
conduct credits for convicted murderers does not apply to presentence custody credits].) The Attorney General agrees th at Montoya is entitled to pres entence custody credits. The parties have calculated that 9 21 days of presentenc e custody credits should be awarded to
her. A sentence that fails to award legally mandated presentence custody credit is unauthorized and may be corrected when discovered. ( People v. Taylor (2004) 119 Cal.App.4th 628, 647.) We direct the tr ial court on remand to prepare a corrected abstract of judgment for Montoya that refl ects 921 days of pr esentence credits.23 As to Flores, the Attorney General cont ends the abstract of judgment must be
corrected to show one add itional day of presentence cu stody credits, which would increase his presentence custody credits fro m 925 days to 926 days. However, the Attorney General also argues that Flores shoul d not have received any conduct credit, and seeks to deduct 138 days of conduct credit that he erroneously receiv ed in violation of
section 2933.2. We conclude the Attorney General is correct on both points. We direct the trial court on remand to prepare a correct ed abstract of judgment for Flores that awards 926 days of presentence custody credits and no conduct credits.

DISPOSITION The judgment is modified to reflect an award of 926 days of presentence custody credits and no conduct credits as to Flores, an d 921 days of presentence custody credits as to Montoya. The clerk of the superior court is ordered to prepare an amended abstract of judgment as to each defendant, and to transmit the amended abstract to the Department of Corrections and Rehabilitation. The judg ment, as modified, is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J. We concur:

WILLHITE, J.

MANELLA, J.