Filed 5/15/13 P. v. Amaya CA2/5
Opinion following rehearing
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B231525

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA10203)
         v.

TOMAS AMAYA, Jr. et al.,

         Defendants and Appellants.




         APPEALS from judgments of the Superior Court of the County of Los Angeles,
Paul A. Bacigalupo, Judge. Affirmed.
         Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant Tomas Amaya, Jr.
         Sharon Fleming, under appointment by the Court of Appeal, for Defendant and
Appellant Aldo Arevalo.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for
Plaintiff and Respondent.
                                    INTRODUCTION


       A jury found defendant and appellant Tomas Amaya (Amaya) guilty of first
degree murder and defendant and appellant Aldo Arevalo (Arevalo) guilty of second
degree murder and assault by means of force likely to produce great bodily injury. On
appeal, Arevalo raises several challenges to his judgment of conviction, including claims
of insufficient evidence, multiple instructional errors, ineffective assistance of counsel,
cumulative error, and cruel and unusual punishment. In addition, Amaya, joined by
Arevalo, contends that punishment on both the murder count and the weapons
enhancement violated California’s multiple conviction rule and federal double jeopardy
principles.
       We hold that there was sufficient evidence supporting the guilty verdicts on both
counts against Arevalo, his claims of instructional error are either unfounded or have
been forfeited, and his other contentions are without merit. As for the punishment on
both the murder count and the weapons enhancement, we hold that such punishment did
not violate the multiple conviction rule and that double jeopardy rules do not apply to
multiple punishment within a single case. We therefore affirm the judgments of
conviction.


                              FACTUAL BACKGROUND


       In July 2009, sixteen-year old Kevin Sanchez lived in the area of 105th Street and
Wilmington Avenue. Sanchez, whose moniker was Drowsy, was a member of the Watts
Varrio Grape Street gang (Grape Street) and was affiliated with the Little Gangsters and
Tiny Winos cliques.
       On the day of the shooting, Sanchez walked to A.J.’s liquor store. As he came out
of the store, Sanchez noticed Jorge Hernandez (the victim) arrive in a truck. He observed
the victim drinking beer by his truck. The victim, who smelled of beer, approached
Sanchez, “banged on him, [and] asked [him] where he was from.” When Sanchez said he

                                              2
was from “Grape,” the victim responded that he too was from “Grape.” The victim “tried
to get all in [Sanchez’s] face. He [said] he was [Sanchez’s] big homie.” Because
Sanchez did not know the victim, he understood the “big homie” comment as a sign of
disrespect. When the victim called Sanchez his “little homie,” Sanchez denied being his
“little homie.” The victim then “got in [Sanchez’s] face” again, so Sanchez pushed him
and challenged him to fight. Sanchez told the victim he was drunk and to “come back
tomorrow and . . . talk to [Sanchez] sober.” Sanchez also asked the victim if he was
trying to kiss him. In response to Sanchez’s challenge to fight, the victim again called
Sanchez his “little homie” and told Sanchez that he was too young to fight the victim.
Sanchez renewed his challenge to fight, took off his shirt, and “threw [his] guard up . . . .”
When the victim refused to fight, Sanchez taunted, “You bitch, you don’t want to fight
me[?]”
       Because the victim refused to fight, Sanchez began to walk home on Wilmington
Avenue toward 105th Street. When he arrived at the corner of 105th Street, the victim
pulled up in his truck, called Sanchez “little homie” yet again, and said he would be back.
When Sanchez’s friend Mario1 arrived at the corner on his bike, the victim said to him, “I
know you, I got love for you,” which statement Sanchez interpreted as an expression of
respect toward Mario, as if the victim “knew [Mario] real good.” Mario responded by
telling the victim to go home, that everybody knew he was drunk because he had been
drinking in front of the store, and that the victim could come back tomorrow to talk to
him. Sanchez issued another challenge to fight, and warned the victim that if he did not
fight, Sanchez would tell the victim’s clique that he “chickened out . . . .”
       The victim’s truck “burned rubber” as he left the scene. According to Sanchez,
the victim was driving as “if it was a freeway” and there were “a lot [of] kids” on that
block. As the victim’s truck passed close to Amaya, who was located down the block,



1      Los Angeles Police Detective Roger Fontes testified that a photograph from a
security video depicting the events around the liquor store leading up to and including the
shooting showed a male on a bicycle at the scene named Mario Lezeola.

                                              3
Sanchez saw Amaya throw a beer at the truck. Sanchez then heard the victim’s truck
“burning rubber or [doing] donuts, like doing circles,” in the street on the next block.
       In July 2009, Yvette Aguirre was Arevalo’s girlfriend. She knew Arevalo by the
nickname Little Knuckles and Amaya by the nickname Chuco. On July 19, 2009,
Aguirre owned a blue, four-door Toyota Camry in which she drove Arevalo to his
brother’s house on 105th Street near Wilmington Avenue. She parked on 105th Street,
and, at some point Amaya joined them in her car. They “were just hanging out drinking
[beer].” Aguirre saw an SUV pull over near the corner of 105th Street and Wilmington
Avenue. A man exited the vehicle and began “arguing with some [teenagers],”
presumably Sanchez and Mario. The man appeared to be drunk. Amaya exited the
Camry and approached the SUV. As he approached, the SUV “took off.” The teenagers
chased the SUV and Amaya threw a beer can at it. Aguirre asked Arevalo “what was
going on” because she was confused “about the whole situation.” She told Arevalo that
she wanted to leave. After Amaya threw the beer, she saw him talk to the teenagers.
Arevalo then exited the Camry and walked toward Amaya’s location.
       Amaya and Arevalo returned to the Camry, with Arevalo taking the front
passenger seat and Amaya taking the rear seat. Another person, whose name Aguirre
could not recall, also entered the Camry. Aguirre then drove the group to A.J.’s liquor
store on Wilmington Avenue and “pulled in front . . . .” There she saw the victim’s SUV
parked on the opposite side of the street. Amaya exited the Camry, followed closely by
Arevalo. As Amaya approached the SUV, Aguirre saw Amaya extending his right arm.
She could not remember whether Amaya had anything on his face. Amaya approached
within three or four feet of the SUV. Aguirre saw a red car arrive at the scene and then
she saw Amaya shooting at the SUV. After the shooting, Amaya entered the red car and
left. Arevalo entered the Camry, and Aguirre drove him to 105th Street where Amaya
reentered the Camry and directed Aguirre “[t]o just get him out of there” and to drive to a
restaurant. As the trio sat in the restaurant, Amaya stared at Aguirre which intimidated




                                             4
her. Arevalo appeared “pretty afraid.” Aguirre thereafter drove Amaya to a house and
dropped him off.2
       Robleon Thomas was talking with some people he knew in front of A.J.’s liquor
store on the day the victim was shot. The victim was across the street from the store in
his SUV. At some point, Thomas observed other cars “pull[] up.” He saw a man
wearing a blue bandana exit a car and approach the victim’s SUV. Two other men exited
the car along with the man in the bandana. As the man in the bandana approached the
SUV with a revolver, Thomas saw the victim begin to open his door and then throw up
his hands “in a retreat manner.” Thomas heard approximately six gunshots. The two
men who exited the vehicle with the shooter appeared shocked. Following the shooting,
Thomas went to the SUV and saw the victim slumped over.
       On July 19, 2009, Jeffrey Rencher was on the east side of Wilmington Avenue
across from A.J.’s liquor store talking to some friends. He noticed an SUV parked on the
same side of the street. Rencher was about five car lengths away from the SUV. He
heard gunshots and dropped to the ground. He then stood up and ran to 106th Street.
When he returned to the scene of the shooting, he noticed the SUV had rolled “on top of
[his nephew’s] car.”
       On July 19, 2009, Augustin Gonzales was driving southbound on Wilmington
Avenue near 107th Street. “A couple of cars stopped ahead of [him].” He saw a
“Blazer” being cut off by a burgundy car going southbound. “Some guys got out of [the]
burgundy car” and started shooting at the person in the Blazer. Gonzales reversed
direction, but so did the burgundy car. He thought it was following him, but when he
pulled into a driveway, the burgundy car passed him and pulled over about 100 yards
away. He saw someone exit the passenger side of the vehicle and run north through some
houses. Gonzales returned to the scene and photographed the victim’s SUV.



2       During direct examination, Aguirre viewed portions of a security videotape
depicting the events around the liquor store leading up to and including the shooting. She
identified both Amaya and Arevalo on the videotape.

                                            5
       In July 2009, Los Angeles Police Officer Tyler Stanley was assigned to the
southeast division. On July 19, 2009, at approximately 6:20 p.m., he and his partner were
on patrol in the area of Wilmington Avenue and 103rd Street. A car pulled up beside
them and reported a shooting. He and his partner made a u-turn and proceeded to the
area of 107th Street and Wilmington Avenue. At that location, they observed “a vehicle
that was on the east side of the street up on the sidewalk, [and] there was a lot of
commotion around it.” Officer Stanley and his partner parked and approached the
vehicle on foot. As they reached the vehicle, they saw the victim lying down inside. He
was bleeding from several wounds and did not appear to be conscious or breathing.
Officer Stanley did not notice any weapons inside the victim’s vehicle.
       Detective Fontes and his partner Detective Mark Hahn were assigned to
investigate the homicide of the victim. According to Detective Fontes, investigators
recovered, inter alia, a surveillance videotape of the area near 106th Street and
Wilmington Avenue that depicted the events leading up to and including the shooting. A
photograph taken from the video showed a red vehicle driving southbound on
Wilmington Avenue that the detective later determined was registered to Amaya. Other
photographs from the video depicted the victim’s vehicle parked along the east side of the
street with the door open facing northbound. A different photograph from the video
showed a light blue vehicle with individuals exiting the rear and front passenger doors.
Another photograph showed Amaya’s red vehicle crossing in front of the path of the
victim’s vehicle. Detective Fontes identified several more photographs taken from the
security video that depicted the shooting. Portions of the videotape were also played for
the jury during Detective Fontes’s testimony.
       When Los Angeles Police Detective Mark Hahn arrived at the scene of the
shooting, it had been secured. He inspected the victim’s vehicle and noted that the center
console was closed. The rear tires of the vehicle were up on the sidewalk and it appeared
“to be resting on a tree.” The front passenger window was rolled all the way down and
the front driver’s window, which had been shattered, “had some glass that was still in the



                                              6
window.” By the time Detective Hahn inspected the victim’s vehicle, the victim had
been transported to the hospital.
       Los Angeles Police Department Criminalist Julie Wilkerson (the criminalist)
assisted in the homicide investigation of the July 19, 2009, shooting. She searched the
victim’s vehicle in the tow yard of the facility to which it had been towed. She had been
requested to perform a bullet path analysis and to search for and collect any firearms or
bullet evidence. During her search of the inside of the vehicle, the criminalist opened the
center console in which she found some papers and then a plastic insert. When she
removed the plastic insert, she saw more papers and what looked like a firearm. The
papers were both below and on top of the firearm. The firearm she recovered from the
console was a BB gun. She also observed blood stains on the left side of the console and
the right arm of the driver’s seat. But, when she opened the lid to the console, there were
no blood stains inside and there was no blood on the BB gun. If the console was closed,
the BB gun would be inaccessible because, to access it, the console needed to be opened
and the plastic insert removed. On the passenger side of the vehicle, the criminalist
located a bull horn on the seat. In the trunk, she found a cardboard beer container and a
sunshade. The criminalist used trajectory rods to analyze the pathways of the bullets that
struck the victim’s vehicle. During direct examination, she identified photographs taken
of the trajectory rods.
       Los Angeles County Deputy Medical Examiner Vadims Poukens conducted the
autopsy of the victim and determined that he died of multiple gunshot wounds. The
victim suffered a total of seven gunshot wounds, four of which were fatal, including a
gunshot that entered near the victim’s left ear and passed through his brain and one that
went through his left lung and heart. The victim had cocaine and alcohol in his blood,
with a blood alcohol concentration of three times the legal limit.
       Los Angeles Police Department Sergeant Scott Stevens testified as a gang expert
for the prosecution. He was familiar with Hispanic street gangs generally, and explained
how young males joined such gangs. According to Sergeant Stevens, there were various
levels of gang membership, from street level soldiers to captains. Gang members

                                             7
typically had tattoos to identify them as members of the gang, as well as monikers. A
gang member moved up in a gang based on reputation, and respect within and among
gangs was important. Falsely claiming to be a member of a gang would be an ultimate
act of disrespect. Acts of disrespect toward gang members could result in beatings or
even more violent responses.
       Sergeant Stevens was familiar with Grape Street. He had investigated crimes
committed by that gang and was familiar with its graffiti and writings. Grape Street
controlled a specific territory that was divided among several cliques, including the Little
Gangsters and the Tiny Winos. The primary activities of Grape Street were vandalism,
possession and sales of narcotics, robberies, homicides, and the possession of firearms.
       Sergeant Stevens was familiar with Arevalo and knew him to be a member of
Grape Street based on numerous admissions that Arevalo had made. The sergeant was
also familiar with Amaya, but had never met him, and understood that he was a member
of Grape Street based on Amaya’s various tattoos. The sergeant was familiar with
Sanchez as well, and knew him to be a member of the Little Gangsters clique of Grape
Street. Based on his familiarity with the case, Sergeant Stevens opined that the shooting
of victim in this case was done to enhance the reputation of Grape Street and in response
to the victim’s acts of disrespect toward Grape Street and one of its members, Sanchez.


                           PROCEDURAL BACKGROUND


       In an information, the Los Angeles County District Attorney charged Amaya and
Arevalo with murder in violation of Penal Code section 187, subdivision (a).3 The
District Attorney alleged that Amaya personally used a firearm; discharged a firearm; and
discharged a firearm causing death or great bodily injury within the meaning of section
12022.53, subdivisions (b), (c), and (d). The District Attorney further alleged that a



3      All further statutory references are to the Penal Code unless otherwise indicated.

                                             8
principal personally: used a firearm; discharged a firearm; and discharged a firearm
causing death or great bodily injury within the meaning of section 12022.53, subdivisions
(b) and (e), (c) and (e), and (d) and (e). The District Attorney also alleged that the
murder was committed for the benefit of, at the direction of, and in association with a
criminal street gang with the specific intent to promote, further, and assist in criminal
conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C).
And the District Attorney alleged that Amaya had been convicted of three violent or
serious felonies within the meaning of sections 1170.12, subdivisions (a) through (d) and
667, subdivisions (b) through (i).
       Prior to trial, the District Attorney successfully moved to amend the information to
charge Arevalo in count 2 with assault by means of force likely to produce great bodily
injury in violation of section 245, subdivision (a)(4). Following trial, the jury found
Amaya guilty of first degree murder and found the firearm and gang allegations true. The
jury found Arevalo guilty of second degree murder and assault by means of force likely
to produce great bodily injury and found the firearm and gang allegations true. Based on
the prosecution’s motion, the trial court dismissed the prior strike conviction allegations
against Amaya.
       The trial court sentenced Amaya to an aggregate term of 50 years to life,
comprised of a base term of 25 years to life on count 1, plus an additional, consecutive
term of 25 years to life based on the section 12022.53, subdivision (d) firearm
enhancement. The trial court imposed but struck the punishment for the remaining
firearm enhancements and did not impose sentence on the gang enhancements.
       At a separate sentencing hearing, the trial court sentenced Arevalo to an aggregate
term of 40 years to life, comprised of a base term of 15 years to life on count 1, plus an
additional, consecutive term of 25 years to life based on the section 12022.53,
subdivision (d) and (e)(1) enhancement. The trial court imposed but struck the
punishment for the remaining firearm enhancements and did not impose sentence on the
gang enhancement.



                                              9
                                       DISCUSSION


       A.     Substantial Evidence


              1.      Standard of Review
       Arevalo’s challenge to the sufficiency of the evidence in support of the jury’s
guilty verdicts on second degree murder and assault by means of force likely to produce
great bodily injury is governed by a substantial evidence standard of review. “In
assessing . . . a claim [of insufficient evidence], we review the record ‘in the light most
favorable to the judgment below to determine whether it discloses substantial evidence—
that is, evidence which is reasonable, credible, and of solid value—such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.’ (People v.
Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) ‘The federal
standard of review is to the same effect: Under principles of federal due process, review
for sufficiency of evidence entails not the determination whether the reviewing court
itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but,
instead, whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)’
(People v. Rodriguez (1999) 20 Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618]
(Rodriguez).) [¶] Moreover, as observed in Rodriguez: ‘The standard of review is the
same in cases in which the prosecution relies mainly on circumstantial evidence. (People
v. Stanley (1995) 10 Cal.4th 764, 792 [42 Cal.Rptr.2d 543, 897 P.2d 481].) “‘Although it
is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is
susceptible of two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court[,] which must be convinced of the
defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a reversal

                                              10
of the judgment.’” [Citations.]’” [Citation.]’ (Rodriguez, supra, 20 Cal.4th at p. 11,
italics added; see generally People v. Clark (2011) 52 Cal.4th 856, 942-943 [131
Cal.Rptr.3d 225, 261 P.3d 243] (Clark), and cases cited.)” (People v. Watkins (2012) 55
Cal.4th 999, 1019-1020.)


              2.     Count 1 – Second Degree Murder
       According to Arevalo, the jury found him guilty of second degree murder based on
an accomplice theory under the natural and probable consequences doctrine, but the
evidence did not show that Arevalo knew or should have known that the shooting was a
probable consequence of the target crime of assault by means of force likely to produce
great bodily injury. In the alternative, Arevalo argues that the evidence was insufficient
to show that he committed the target crime of assault by means of force.
       It appears the jury found Arevalo guilty of second degree murder based on the
prosecution’s alternative accomplice theory of liability under the natural and probable
consequences doctrine. Under that alternative theory, the prosecutor argued that Arevalo
aided and abetted the commission of a gang assault of the victim and Amaya’s shooting
of the victim during the commission of the assault was a natural and probable
consequence of the assault for which Arevalo was also liable.
       “‘[A] person aids and abets the commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime.’ (People v.
Beeman (1984) 35 Cal.3d 547, 561 [199 Cal.Rptr. 60, 674 P.2d 1318].) Furthermore,
under the ‘“natural and probable consequences”’ doctrine, an aider and abettor is guilty
not only of the offense he or she intended to facilitate or encourage, but also any
reasonably foreseeable offense committed by the person he or she aids and abets.
(People v. Prettyman (1996) 14 Cal.4th 248, 261 [58 Cal.Rptr.2d 827, 926 P.2d 1013].)
[¶] . . . [¶] In Prettyman, we summarized the natural and probable consequences
doctrine as follows: ‘Under California law, a person who aids and abets a confederate in

                                             11
the commission of a criminal act is liable not only for that crime (the target crime), but
also for any other offense (nontarget crime) committed by the confederate as a “natural
and probable consequence” of the crime originally aided and abetted. To convict a
defendant of a nontarget crime as an accomplice under the “natural and probable
consequences” doctrine, the jury must find that, with knowledge of the perpetrator’s
unlawful purpose, and with the intent of committing, encouraging, or facilitating the
commission of the target crime, the defendant aided, promoted, encouraged, or instigated
the commission of the target crime. The jury must also find that the defendant’s
confederate committed an offense other than the target crime, and that the nontarget
offense perpetrated by the confederate was a “natural and probable consequence” of the
target crime that the defendant assisted or encouraged.’ (Id. at p. 254.)” (People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 295-96, 298-299)
       In People v. Medina (2009) 46 Cal.4th 913, the Supreme Court analyzed and
approved two appellate court decisions which held that murder is a natural and probable
consequence of a gang assault. “In People v. Montes [(1999)] 74 Cal.App.4th 1050, the
victim was shot as he was retreating from a fight between two rival gangs. Although the
defendant struck the victim (a rival gang member) with a chain after the victim produced
a knife, no guns were displayed or used during the fight. As the victim was about to
drive off after the fight ended, the defendant’s confederate retrieved a gun from a nearby
vehicle, ran up to the victim, and shot him several times. Rejecting the defendant’s
argument that he did not know his confederate had a gun, the Montes court held that the
homicide was a reasonable and natural consequence of the gang attack in which the
defendant participated. It reasoned that escalating violence is a foreseeable consequence
to be expected in gang confrontations. (People v. Montes, supra, 74 Cal.App.4th at p.
1056.)” (People v. Medina, supra, 46 Cal.4th at pp 926-927.)
       “In People v. Montano [(1979)] 96 Cal.App.3d 221, the court found the defendant
guilty of attempted murder as an aider and abettor even though he had not fought with the
victim. There, the defendant and a codefendant tricked a member of another gang into
getting in their car by claiming to be members of the same gang. They drove the victim

                                             12
to a remote area where another codefendant met them. The two codefendants ordered the
victim out of the car and escorted the victim to a nearby tree, while the defendant
remained inside the car. The first codefendant produced a handgun and gave it to the
second codefendant, who shot the victim. At the urging of the first codefendant, the
second codefendant shot the victim again. Defendant argued there was insufficient
evidence to support his attempted murder conviction as an aider and abettor; he
contended he had only aided or encouraged a battery by suggesting the beating of the
victim and had had no knowledge of his codefendant’s intent to shoot the victim. [¶]
The Montano court rejected the argument, reasoning that ‘The evidence was clear that the
attack upon [the victim] was an aspect of gang warfare and that he was attacked on the
basis of his membership in the rival . . . gang. The frequency with which such gang
attacks result in homicide fully justified the trial court in finding that homicide was a
“reasonable and natural consequence” to be expected in any such attack. It is, therefore,
clear that [the defendant’s] guilt of aiding and abetting an attempted murder does not
depend upon his awareness that [either codefendant], or both of them, had deadly
weapons in their possession.’ (People v. Montano, supra, 96 Cal.App.3d at p. 227.)”
(People v. Medina, supra, 46 Cal.4th at pp. 926-927.)
       When the evidence in this case is viewed in a light most favorable to the
prosecution, as it must be under the substantial evidence standard discussed above, it
supports the jury’s verdict finding Arevalo guilty of second degree murder. Sanchez and
Arevalo each admitted that they were Grape Street gang members, and based on Amaya’s
tattoos, the gang expert testified that Amaya, the shooter, was also a member of that same
gang. The victim, who had three times the legal limit of alcohol in his blood, engaged in
a gang-related confrontation with Sanchez in front of the liquor store. According to
Sanchez, he felt disrespected by the victim’s claim that the victim was a Grape Street
gang member, and the expert confirmed that such a false claim of gang membership was
an ultimate act of disrespect toward the gang.
       The gang-related confrontation between Sanchez and the victim renewed at a
street corner near where Amaya and Arevalo were drinking beer in Aguirre’s Camry. At

                                             13
some point, Sanchez was joined on that corner by his friend, Mario. When the victim
attempted to address Mario with an expression of respect, Mario responded in a
confrontational manner, as Sanchez had done earlier at the liquorstore, telling the victim
he—the victim—was drunk and to return the next day when he was sober.4 Upon
witnessing the street corner confrontation, Amaya exited the Camry and approached the
corner, evidence that supported an inference that he intended to come to the aid of his
younger fellow gang members. When the victim saw Amaya, he sped past Amaya’s
location as Amaya threw a beer can at him and Sanchez and Mario chased his SUV.
Amaya then spoke to Sanchez and Mario and thereafter to Arevalo.
       Immediately following the incident at the corner, Aguirre drove Amaya and
Arevalo directly to the liquor store where the victim was located, while another person, or
other persons, traveled in Amaya’s burgundy car to the same location. As soon as they
arrived, Amaya and Arevalo exited the Camry and proceeded straight toward the victim
in his SUV. To prevent the victim from escaping, the person driving Amaya’s car
blocked the victim’s path. As the victim attempted to back up, Amaya came within three
or four feet of the victim’s SUV and fired six shots at close range, four of which were
fatal. Amaya then fled the scene in his car, later rejoined Arevalo in Aguirre’s Camry,
and directed the trio to a restaurant where they ate.
       The foregoing evidence supported a reasonable inference that, at a minimum,
Amaya and Arevalo planned to ambush and assault the victim for a perceived act of
disrespect toward their gang and a fellow gang member in their territory. In the course of
the ambush and assault, Amaya produced a handgun and shot the victim in a cold-
blooded, execution-style murder. Thus, even if Arevalo was unaware of Amaya’s intent



4       The victim’s attempt to show respect toward Mario and Mario’s confrontational
response were similar in nature to the victim’s confrontation with Sanchez at the liquor
store, which confrontation was clearly gang related. Those facts, when viewed in a light
most favorable to the judgments of conviction, supported an inference that Mario was
also a member or affiliate of Grape Street who felt disrespected by the victim’s false
assertion of familiarity, an inference that the prosecutor argued to the jury.

                                             14
to kill—as opposed to assault—the victim, the shooting was nevertheless a natural and
probable consequence of the gang assault under the authorities cited above. As those
cases teach, such escalating violence was a forseeable consequence that Arevalo should
have expected given the gang-related nature of the planned attack.
       Arevalo further contends that he should not have been found guilty of murder as
an accomplice under a natural and probable consequences doctrine because he did not
commit the target crime of assault by means of force. For reasons similar to those that
support Arevalo’s conviction of second degree murder, we conclude that the evidence
supported a reasonable inference that Arevalo committed the target crime. As discussed,
Amaya and Arevalo witnessed the street corner confrontation between admitted fellow
gang member Sanchez and his friend Mario, on the one hand, and the victim, on the
other. Following that confrontation—which included the victim driving dangerously
close to Amaya at high speed and Amaya throwing a beer at the victim’s vehicle—
Amaya spoke to both Sanchez and Mario and then to Arevalo and, almost immediately
thereafter, Amaya and Arevalo engaged in what appeared to be a well-coordinated attack
on the victim.5 In addition to Aguirre’s Camry in which Amaya and Arevalo arrived at
the scene, Amaya’s vehicle arrived almost simultaneously to block the trapped victim’s
escape and facilitate the success of the assault.
       That evidence supported a reasonable inference that Arevalo intended to engage in
a gang assault on the victim, either directly or as an aider and abettor. That he did not
personally commit a battery on the victim is immaterial because, as discussed in detail
below, actual physical contact with or harm to the victim is not necessary to support a
finding of assault. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) The focus is




5      As discussed, Detective Fontes testified that the male on the bicycle depicted at
the scene of the shooting on the photograph from the security video was named Mario.
From that evidence, the jury could have reasonably inferred that the male in the
photograph was Sanchez’s friend Mario who arrived at the scene of the shooting shortly
before the ambush took place.

                                              15
on whether the means employed was likely to produce great bodily injury. (Ibid.) Here,
the victim’s assailants blocked his escape and Amaya, with Arevalo and another man at
his side, proceeded directly to the victim’s truck, evidence that supported an inference
that they intended, at a minimum, to engage in a physical assault on the victim which
assault, given their superior numbers and proximity to the trapped victim, was likely to
inflict great bodily injury.


               2.      Count 2 – Assault By Means of Force Likely to Produce Great
                       Bodily Injury
       In support of his claim that there was insufficient evidence to support the jury’s
guilty verdict on count 2—assault by means of force likely to produce great bodily
injury—Arevalo asserts that there was no evidence he committed any act that was likely
to result in a battery of the victim and that he could not have aided and abetted in the
assault of the victim because no one else committed any act likely to result in a battery of
the victim.
       “[Former] [s]ection 245, subdivision (a)(1), punishe[d] assaults committed by the
following means: . . . by ‘any means of force likely to produce great bodily injury.’[6]
One may commit an assault without making actual physical contact with the person of the
victim; because the statute focuses on . . . force likely to produce great bodily injury,
whether the victim in fact suffers any harm is immaterial. (See People v. Wingo (1975)
14 Cal.3d 169, 176 [121 Cal.Rptr. 97, 534 P.2d 1001].)” (People v. Aguilar, supra, 16
Cal.4th at p. 1028.)




6      The offense of assault by means of force likely to produce great bodily injury is
currently set forth in section 245, subdivision (a)(4) which provides: “Any person who
commits an assault upon the person of another by any means of force likely to produce
great bodily injury shall be punished by imprisonment in the state prison for two, three,
or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten
thousand dollars ($10,000), or by both the fine and imprisonment.”

                                              16
       Section 245, subdivision (a)(4) requires that a defendant commit “an assault upon
the person of another . . . .” “An assault . . . is defined in section 240 as ‘an unlawful
attempt, coupled with a present ability, to commit a violent injury on the person of
another.’ (Pen. Code, § 240, italics added.) [¶] . . . [¶] [B]ecause of the ‘present
ability’ element of the offense, to be guilty of assault a defendant must have maneuvered
himself into such a location and equipped himself with sufficient means that he appears
to be able to strike immediately at his intended victim. (Thus, the emphasis is on the
word ‘present’ as much as the word ‘ability.’) The policy justification is apparent. When
someone has gone this far he is a greater and more imminent threat to his victim and to
the public peace than if he is at an earlier stage of an attempted crime.” (People v. Valdez
(1985) 175 Cal.App.3d 103, 108, 112.)
       As discussed, the evidence supported a reasonable inference that Arevalo intended
either to engage directly in a gang assault on the victim or to aid and abet such an assault.
Gang members Amaya and Arevalo witnessed the gang-related street corner
confrontation and, after speaking with fellow gang members Sanchez and Mario,
proceeded directly to the liquor store across from which the victim was parked. Aguirre
parked her Camry across from the victim’s vehicle, and Amaya, Arevalo, and a third man
proceeded straight toward the victim while another person driving Amaya’s car blocked
the victim’s escape. Amaya, with Arevalo at his side, moved within three or four feet of
the victim’s vehicle, evidence that supported a reasonable inference that Arevalo not only
intended to engage in or support the gang attack, but also that he had the present ability to
do so. The victim was, in effect, trapped, and Arevalo and his confederates outnumbered
him at least three to one, suggesting that the planned assault was likely to produce great
bodily injury.




                                              17
       B.     Claimed Instructional Errors


              1.     Simple Assault as Lesser Included Offense of Assault by Means of
                     Force Likely to Produce Great Bodily Injury
       Arevalo contends that because the evidence supported a reasonable inference that
he intended to engage only in the lesser included offense of simple assault, he was
entitled to a sua sponte jury instruction on that lesser included offense. According to
Arevalo, the evidence did not establish a felony assault to the exclusion of simple assault
because Arevalo was not armed with any weapon and there was no evidence as to what a
gang “beat down” would entail.
       “‘A court must generally instruct the jury on lesser included offenses whenever the
evidence warrants the instructions, whether or not the parties want it to do so. [Citation.]’
(People v. Horning (2004) 34 Cal.4th 871, 904-905 [22 Cal.Rptr.3d 305, 102 P.3d 228]
(Horning); see People v. Valdez (2004) 32 Cal.4th 73, 115 [8 Cal.Rptr.3d 271, 82 P.3d
296].) ‘[T]he sua sponte duty to instruct on lesser included offenses, unlike the duty to
instruct on mere defenses, arises even against the defendant’s wishes, and regardless of
the trial theories or tactics the defendant has actually pursued.’ (People v. Breverman
(1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)” (People v. Beames
(2007) 40 Cal.4th 907, 926.) “[A] trial court, [however,] need not instruct the jury on a
lesser included offense where no evidence supports a finding that the offense was
anything less than the crime charged. ([People v. Barton (1995) 12 Cal.4th 186,] 196, fn.
5; see People v. Breverman[, supra,] 19 Cal.4th [at p.] 149; People v. Anderson (1983)
144 Cal.App.3d 55, 61 [192 Cal.Rptr. 409].)” (People v. Gutierrez (2009) 45 Cal.4th
789, 826.)
       The prosecution’s evidence supported a reasonable inference that Arevalo
intended to engage in what the gang expert described as a gang “beat down” of the
victim. Contrary to Arevalo’s assertion, there was evidence from the gang expert as to
what a gang “beat down” would entail. When describing how gang members are
“jumped in,” i.e., admitted, to a gang, the expert explained that a “group of guys beat you

                                             18
down in an alley.” And when describing the role of “street level soldiers” within a gang,
the expert said that they engaged in, inter alia, “retaliatory strikes” and administered
“gang punishment.” The expert also explained that the punishment for snitching, a
serious offense, could be an “old fashioned beat down” and that the victim’s offense in
this case—falsely claiming to be a Grape Street gang member—was also considered a
very serious offense that, depending on the “extent of the insult,” would likely “end
violently” in a “beat down.”
       From that expert testimony and the facts relevant to the assault, the jury could
reasonably infer that the gang “beat down” in which Arevalo intended to engage would
have been a violent physical beating administered by at least three gang members.
Arevalo offered no evidence to the contrary. Based on that evidence, no reasonable juror
could have concluded that Arevalo intended to engage in a simple assault. As a result,
the trial court had no sua sponte duty to instruct on the lesser included offense of simple
assault.


              2.     Voluntary and Involuntary Manslaughter as
                     Lesser Included Offenses of Murder


                     a.     Involuntary Manslaughter
       Arevalo contends that he was entitled to a jury instruction on the lesser included
offense of involuntary manslaughter. He argues that the evidence supported an
instruction on simple assault as a lesser included target crime of assault by means of force
likely to produce great bodily injury and, if the jury found he had committed a simple
assault, the killing of the victim as a consequence of that simple assault would have been
involuntary manslaughter.
       As discussed above, a trial court does not have a sua sponte duty to instruct on
lesser included offenses that are not supported by the evidence. (People v. Gutierrez,
supra, 45 Cal.4th at p. 826.) Here, as explained, the evidence did not support an
instruction on simple assault. Therefore, the evidence also did not support an instruction

                                             19
on involuntary manslaughter. Rather, the evidence supported a reasonable inference that
Arevalo intended to engage in a gang “beat down” of the victim, not a simple assault.
       Moreover, even if the evidence supported an instruction on a lesser included target
offense of a simple assault, this court has concluded that a trial court does not have a sua
sponte duty to instruct on lesser included target offenses under the natural and probable
cause consequences doctrine unless those lesser included target offenses are relied upon
by the prosecutor. (See People v. Huynh (2002) 99 Cal.App.4th 662, 677-678.)
“Typically, there is a sua sponte duty to instruct on lesser included offenses. (People v.
Koontz (2002) 27 Cal.4th 1041, 1084, [119 Cal.Rptr.2d 859, 46 P.3d 335]; People v.
Breverman[, supra,] 19 Cal.4th [at p.] 154.) Under most circumstances, involuntary
manslaughter is a lesser included offense of murder. (People v. Prettyman, supra, 14
Cal.4th at p. 274; People v. Edwards (1985) 39 Cal.3d 107, 116, fn. 10, [216 Cal.Rptr.
397, 702 P.2d 555].) But the California Supreme Court has held that there is no sua
sponte duty to instruct on target offenses on a natural and probable consequences aiding
and abetting theory unless they are identified by the prosecutor. In People v. Prettyman,
supra, 14 Cal.4th at page 269, the California Supreme Court described the sua sponte
duty to instruct on target offenses in natural and probable consequences aiding and
abetting cases as follows: ‘We also recognize that “the trial court cannot be required to
anticipate every possible theory that may fit the facts of the case before it and instruct the
jury accordingly.” (People v. Wade (1959) 53 Cal.2d 322, 334, [1 Cal.Rptr. 683, 348
P.2d 116].) But the sua sponte duty to instruct that is imposed here is quite limited. It
arises only when the prosecution has elected to rely on the “natural and probable
consequences” theory of accomplice liability and the trial court has determined that the
evidence will support instructions on that theory. The trial court, moreover, need not
identify all potential target offenses supported by the evidence, but only those that the
prosecution wishes the jury to consider.’ (Fn. omitted, original italics; see People v.
Dawson (1997) 60 Cal.App.4th 534, 544-545, [71 Cal.Rptr.2d 33].)” (Ibid.)
       In this case, the prosecutor did not identify simple assault as a target offense. The
only target offense identified was assault by means of force likely to produce great bodily

                                              20
injury. As a result, the trial court had no sua sponte duty to instruct on that lesser
included target offense.
       Arevalo also contends that he was entitled to an involuntary manslaughter
instruction because the evidence supported an inference that he committed a
noninherently dangerous felony without due caution and circumspection. (People v.
Burroughs (1984) 35 Cal.3d 824, 835.) “‘Due caution and circumspection’” in this
context “is equivalent to criminal negligence . . . .” (Id. at p. 835, fn. 9.) Here, there was
no evidence that either Amaya or Arevalo acted in a criminally negligent manner. The
evidence showed that each acted intentionally in connection with the death of the
victim—Amaya acted with the specific intent to murder the victim and Arevalo acted, at
a minimum, with the specific intent to engage in a gang assault on the victim. Thus, the
trial court did not err in failing to instruct on involuntary manslaughter based on criminal
negligence.


                     b.      Voluntary Manslaughter
       Arevalo argues that he was also entitled to a jury instruction on voluntary
manslaughter under People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia). Arevalo
maintains that Garcia recognized a separate theory of voluntary manslaughter, in addition
to the well recognized theories of heat of passion and imperfect self-defense.
       Contrary to Arevalo’s assertion, the issue in Garcia, supra, 162 Cal.App.4th 18
did not involve a claim that there was a third theory, beyond heat of passion and
imperfect self-defense, upon which to base a conviction for voluntary manslaughter.
Garcia involved the limited question of whether, under the facts of that case, the
defendant was entitled to an instruction on involuntary manslaughter as a lesser included
offense. (Id. at p. 22.) Thus, its holding was limited to that issue, and any discussion of
voluntary manslaughter was dictum.
       Moreover, even assuming Garcia, supra, 162 Cal.App.4th 18 enunciated a new
theory of voluntary manslaughter, the evidence in this case did not support an instruction
on that theory as a lesser included offense of murder. The jury found that Arevalo

                                              21
committed an assault by means of force likely to produce great bodily injury, and, as
noted, that finding was supported by substantial evidence. The jury also found, based on
substantial evidence, that the intentional, premeditated killing of the victim was a natural
and probable consequence of the assault. Thus, contrary to Arevalo’s assertion, there was
no evidence that Arevalo failed to appreciate the potential lethality of his conduct. To the
contrary, the jury found by substantial evidence that he should have expected that
escalating violence, including murder, would be a natural and probable consequence of
the gang “beat down” in which he intended to engage. Based on that evidence and
finding, there was no sua sponte duty to instruct on voluntary manslaughter.


              3.     Natural and Probable Consequences Theory
       Arevalo argues that the trial court erred by instructing the jury on the natural and
probable consequences doctrine because there was insufficient evidence that he
committed the target crime of assault by means of force likely to produce great bodily
injury. Because we have previously rejected, in the context of other claims of error on
appeal, Arevalo’s contentions concerning the sufficiency of the evidence in support of
assault by means of force, we conclude that this claim of instructional error is unfounded.


              4.     CALCRIM No. 402
       Although the basis for this contention is unclear, Arevalo contends that the trial
court erred by instructing the jury on the natural and probable consequences doctrine
using CALCRIM No. 402.7 According to Arevalo, certain language in the instruction




7      The trial court instructed the jury using CALCRIM No. 402 as follows:
“Defendant Aldo Arevalo is charged in count 2 with assault by means likely to produce
great bodily injury and in count 1 with murder. [¶] You must first decide whether the
defendant Arevalo is guilty of assault by means likely to produce great bodily injury. [¶]
If you find the defendant is guilty of this crime, you must then decide whether he is guilty
of murder. [¶] Under certain circumstances, a person who is guilty of one crime may
also be guilty of other crimes that were committed at the same time. [¶] To prove that

                                             22
created the “erroneous inference” that “if Amaya shot the victim for the same reason
underlying the common plan to commit assault, then the homicide Amaya committed was
the [natural and probable consequence] of the assault.”
       Arevalo’s trial counsel did not object in the trial court to CALCRIM No. 402
based on the language with which Arevalo now takes issue. Instead, his trial counsel
objected on the ground that the instruction applied only to Arevalo. Arevalo therefore
forfeited this claim on appeal by not raising it in the trial court. (People v. Virgil (2011)
51 Cal.4th 1210, 1260.) Moreover, to the extent Arevalo’s claim can be fairly
characterized as an assertion that CALCRIM No. 402 was ambiguous or unclear, he also
forfeited that claim by failing to request clarifying language in the trial court. (People v.
Rundle (2008) 43 Cal.4th 76, 151 [“failure to request clarification of an instruction that is
otherwise a correct statement of the law forfeits an appellate claim of error based on the
instruction given”].)




the defendant is guilty of murder, the people, and I’m referring to defendant Arevalo, the
people must prove that: [¶] 1. The defendant is guilty of assault by means likely to
produce great bodily injury. [¶] 2. During the commission of assault by means likely to
produce great bodily injury, a co-participant in that assault by means likely to produce
great bodily injury committed the crime of murder. [¶] And 3. Under all of the
circumstances, a reasonable person in the defendant’s position would have known that
the commission of murder was a natural and probable consequence of the commission of
the assault by means likely to produce great bodily injury. [¶] A co-participant in a
crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not
include a victim or innocent bystander. [¶] A natural and probable consequence is one
that a reasonable person would know is likely to happen if nothing unusual intervenes.
[¶] In deciding whether a consequence is natural and probable, consider all of the
circumstances established by the evidence. [¶] If the murder was committed for a reason
independent of the common plan to commit the assault by means likely to produce great
bodily injury, then the commission of murder was not a natural and probable
consequence of assault by means likely to produce great bodily injury.”


                                              23
              5.     CALCRIM No. 370
       Arevalo claims that the trial court should not have instructed the jury on motive
using CALCRIM No. 370. As Arevalo reads that instruction, it suggested to the jury that
if Arevalo had a motive to confront and assault the victim, the jury could then assume
that Arevalo was guilty of murder as an accomplice under the natural and probable
consequences doctrine.
       Arevalo did not object in the trial court to the instruction on motive or argue that
the language of CALCRIM No. 370 was unclear or ambiguous. He therefore forfeited on
appeal this claim of instructional error. (People v. Virgil, supra, 51 Cal.4th at p. 1260,
People v. Rundle, supra, 43 Cal.4th at p. 151.)


       C.     Ineffective Assistance of Counsel
       Arevalo argues that if we determine that the trial court had no sua sponte duty to
give certain instructions or that he forfeited one or more claims of instructional error,
then he received ineffective assistance of counsel. “‘To establish a violation of the
constitutional right to effective assistance of counsel, a defendant must show both that his
counsel’s performance was deficient when measured against the standard of a reasonably
competent attorney and that counsel’s deficient performance resulted in prejudice to
defendant in the sense that it “so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.”’ (People v.
Kipp (1998) 18 Cal.4th 349, 366 [75 Cal.Rptr.2d 716, 956 P.2d 1169], quoting Strickland
v. Washington [(1984)] 466 U.S. [668,] 686.) Preliminarily, we note that rarely will an
appellate record establish ineffective assistance of counsel. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 267-268 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)” (People v.
Thompson (2010) 49 Cal.4th 79, 122.) “We have repeatedly stressed ‘that “[if] the record
on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]
. . . unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be rejected.’
(People v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212] quoting

                                             24
People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th
1].) A claim of ineffective assistance in such a case is more appropriately decided in a
habeas corpus proceeding. (People v. Wilson, supra, at p. 936; People v. Pope, supra, at
p. 426.)” (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
       The record in this case sheds no light on the issue of why Arevalo’s trial counsel
failed to request the various instructions that he claims were necessary based on the
evidence or why his trial counsel failed to object to or request clarifying instructions as to
CALCRIM Nos. 402 and 370. Moreover, we cannot determine on this record that there
is no satisfactory explanation for his counsel’s failure to request such instructions or to
object to CALCRIM Nos. 402 and 370. As to the instructions on the claimed lesser
included offenses, his trial counsel may have determined that a given instruction was not
warranted based on his view of the evidence or there may have been tactical reasons for
not requesting a given instruction. Similarly, there may have been tactical reasons for not
objecting to or requesting clarification of CALCRIM Nos. 402 and 370.


       D.     Constitutionality of the Natural and Probable Consequences
              Theory
       Arevalo asserts that California’s accessory theory of liability under the natural and
probable consequences doctrine violates the separation of powers doctrine and due
process. Therefore, he claims that the trial court committed constitutional error by
instructing the jury on that theory. In a footnote, Arevalo concedes that the Supreme
Court has repeatedly endorsed the natural and probable consequences theory and that we
are bound by those decisions. (People v. Prettyman, supra, 14 Cal.4th at p. 260
[“Although the ‘natural and probable consequences’ doctrine has been ‘subjected to
substantial criticism (citations), it is an ‘established rule’ of American jurisprudence
[citation]”]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Given
this concession, we reject this contention without further discussion.




                                             25
       E.     Cumulative Error
       Arevalo maintains that the cumulative effect of the errors at trial which he
challenges on appeal prejudiced him and warrants reversal. Because we have determined
that no such errors occurred at trial, we reject this claim as well.


       F.     Cruel and Unusual Punishment
       Arevalo contends that his sentence of 40 years to life violates California’s
constitutional prohibition against cruel or unusual punishment. Based on his view of the
evidence, Arevalo concludes that his sentence is disproportionate to his crime because he
had no adult criminal history, was unaware that Amaya was armed or intended to kill the
victim, and otherwise had limited involvement in the actual murder of the victim.
       The United States Constitution prohibits the imposition of cruel and unusual
punishment (U.S. Const., 8th Amend.), and the California Constitution prohibits the
imposition of cruel or unusual punishment (Cal. Const., art I, § 17). The California and
federal constitutional provisions have both been interpreted to prohibit a sentence that is
“so disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424,
fn. omitted; see also Ewing v. California (2003) 538 U.S. 11, 32-35; Harmelin v.
Michigan (1991) 501 U.S. 957, 962.) The federal constitutional standard is one of gross
disproportionality. (Ewing v. California, supra, 538 U.S. at p. 21; Harmelin v. Michigan,
supra, 501 U.S. at p. 1001.) Successful challenges to the proportionality of particular
sentences have been very rare. (Rummel v. Estelle (1980) 445 U.S. 263, 272; Ewing v.
California, supra, 538 U.S. at p. 21 [“outside the context of capital punishment,
successful challenges to the proportionality of particular sentences have been exceedingly
rare”]; People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 [“Findings of
disproportionality have occurred with exquisite rarity in the case law”].)
       The California Supreme Court has instructed that, when reviewing a claim of cruel
or unusual punishment, courts should examine the nature of the offense and offender,
compare the punishment with the penalty for more serious crimes in the same

                                              26
jurisdiction, and measure the punishment to the penalty for the same offense in different
jurisdictions. (People v. Dennis (1998) 17 Cal.4th 468, 511; In re Lynch, supra, 8 Cal.3d
at pp. 425-427.) Defendant does not contend that his punishment is unconstitutional in
the abstract, but as applied to him. Thus, defendant’s argument addresses the first factor
identified in In re Lynch—the nature of the offense and the offender. Regarding the
nature of the offense and the offender, we evaluate the totality of the circumstances
surrounding the commission of the current offenses, including the defendant’s motive,
the manner of commission of the crimes, the extent of the defendant’s involvement, the
consequences of his acts, and his individual culpability, including factors such as the
defendant’s age, prior criminality, personal characteristics, and state of mind. (People v.
Martinez (1999) 71 Cal.App.4th 1502, 1510.)
       The nature of the offense and the offender in this case justify the sentence imposed
on Arevalo by the trial court. The evidence of the shooting supported a reasonable
inference that Arevalo’s motive for the shooting was gang-related, i.e., to punish the
victim for insulting a fellow gang member and falsely claiming to be a member of Grape
Street. The evidence of the manner of commission of the crime showed that Arevalo
agreed to engage in or support the ambush of the victim for the purpose of administering
a gang “beat down” as punishment. And Arevalo’s involvement in the crime was more
extensive than he claims. Arevalo knowingly accompanied Amaya to the scene, exited
the Camry with him, and approached the victim’s vehicle at Amaya’s side, evidence
which suggests support of and deep involvement in the ambush and assault of the victim.
The consequences of Arevalo’s actions were serious; based on his support of and
participation in the planned attack, the victim was trapped and vulnerable to the close
range shooting. Although Arevalo may not have had actual knowledge of Amaya’s intent
to kill, the jury found based on substantial evidence that Arevalo should have expected
that the assault would escalate to a killing due to the gang-related motive underlying the
planned assault. Arevalo’s personal culpability for the shooting was evident from his
motive—to punish the victim for disrespecting his gang. Finally, although Arevalo may
not have had an adult criminal history, he had a juvenile criminal history, and he

                                            27
repeatedly admitted to the gang expert that he was a member of Grape Street, not a
former member.


       G.     Multiple Conviction Rule and Double Jeopardy Principles
       Amaya, joined by Arevalo, contends that the imposition of a section 12022.53,
subdivision (d) firearms enhancement on a defendant convicted of murder violates the
multiple conviction rule set forth in People v. Ortega (1998) 19 Cal.4th 686, 692-694 and
People v. Pearson (1986) 42 Cal.3d 351, 355-360, as well as federal constitutional
principles of double jeopardy. According to Amaya, the factual element essential to
establishing the section 12022.53, subdivision (d) enhancement—discharge of a firearm
causing death—is necessarily consumed within the elemental components of murder—
proximately causing death of the victim.
       Amaya concedes, as he must, that two recent California Supreme Court decisions
have rejected his contention under California’s multiple conviction rule. (People v. Sloan
(2007) 42 Cal.4th 110, 115-125 and People v. Izaguirre (2007) 42 Cal.4th 126, 130-
134.) Because we are bound by those decisions under Auto Equity Sales, Inc. v. Superior
Court, supra, 57 Cal.2d at page 455, we reject Amaya’s contention that his punishment
violated California’s multiple conviction rule.
       Amaya also concedes that, historically, federal double jeopardy has not applied to
multiple punishment within a unitary trial, but contends that recent United States
Supreme Court decisions “suggest” that it now should. Again, because there is California
Supreme Court and United States Supreme Court authority holding that multiple criminal
punishments that arise out of a unitary criminal proceeding do not implicate federal
double jeopardy principles, People v. Sloan, supra, 42 Cal.4th at page 121, Hudson v.
United States (1997) 522 U.S. 93, 99, we are bound to follow that authority and reject
Amaya’s double jeopardy contention.




                                            28
                                 DISPOSITION


     The judgments of conviction are affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             MOSK, J.


We concur:




             ARMSTRONG, Acting P. J.




             KRIEGLER, J.




                                        29
