Filed 4/9/13 P. v. Amaya CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

TOMAS AMAYA, Jr. et al.,

Defendants and Appellants.

 B231525

 (Los Angeles County

 Super. Ct. No. TA110203)

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.
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INTRODUCTION

Their respective juries 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 
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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 Mario arrived at the corner on his bike, the victim said to him, “I 

know you, I got love for you.” 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, 

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 
4

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].” 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 

her. Arevalo appeared “pretty afraid.” Aguirre thereafter drove Amaya to a house and 

dropped him off.1

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 

 

1 During direct examination, Aguirre viewed portions of a security videotape 

depicting the events leading up to and including the shooting. She identified both Amaya 

and Arevalo on the videotape. 
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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. 

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 
6

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. 

Los Angeles Police Detective Roger 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 Stanley 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 Stanley‟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 

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 
7

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 

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 
8

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).2 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 

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). 

 

2 All further statutory references are to the Penal Code unless otherwise indicated.
9

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). At trial, two juries were impaneled. 

Following trial, Amaya‟s jury found him guilty of first degree murder and found the 

firearm and gang allegations true. Arevalo‟s jury found him 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 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. 

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—
10

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 

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 
11

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 

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 
12

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, 926-927, 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.)”

“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 

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 
13

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 confrontation between Sanchez and the victim renewed at a street corner near 

where Amaya and Arevalo were drinking beer in Aguirre‟s Camry. At some point, 

Sanchez was joined on that corner by a fellow gang member, Mario. 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 
14

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 coldblooded, execution-style murder. Thus, even if Arevalo was unaware of Amaya‟s intent 

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 fellow gang 

members Sanchez and 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. In 

addition to Aguirre‟s Camry in which Amaya and Arevalo arrived at the scene, Amaya‟s 

vehicle arrived almost simultaneously to block the victim‟s escape and facilitate the 

success of the assault.
15

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 

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 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.‟[3] 

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, 

 

3

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

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.)

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, or 

as Arevalo characterizes it, a misdemeanor or “non-inherently dangerous felony.”

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.)
20

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 

injury. As a result, the trial court had no sua sponte duty to instruct on that lesser 

included target offense.

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 

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.
21

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. 402.4 According to Arevalo, certain language in the instruction 

 

4

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 

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.” 
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”].)

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 
23

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 

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 her 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.
24

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.

E. Cumulative Error

Amaya 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 
25

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 

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 
26

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 

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 
27

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.

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.