Filed 7/23/14 P. v. Martinez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. JAMES MARTINEZ, et al., Defendants and Appellants. D062720

(Super. Ct. No. SCS247733)

APPEAL from a judgment of the Supe rior Court of San Diego County, Ana Espana, Judge. Judgment affirmed in part, reversed in part. Nancy Olsen, under appointment by th e Court of Appeal, for Defendant and Appellant James Martinez. Martha L. McGill, under appointment by the Court of Appeal , for Defendant and Appellant Sean O'Neill. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Barry Carlton, Heather M. Clark, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 I. INTRODUCTION In July 2012, a ju ry convicted James Martinez a nd Sean O'Neill of the attempted murders of Robert Romero and Chula Vist a Police Department (CVPD) Agent Ricardo Cruz (Pen. Code, §§ 187, subd. (a), 664) 1 (counts 1 and 2, respec tively), assault with a deadly weapon on a peace officer (§ 245, subd. (c)) (cou nt 3), resisting an executive officer (§ 69) (count 4), and evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)) (count 5). The jury also found that Martinez and O'Neill committed each of the five felonies for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1). As to count 1, the attempted murder of Romero, the jury found that both Martinez and O'Neill committed the crime willfully, de liberately and with pr emeditation, within the meaning of section 189. The jury also fo und that each was a principal in the offense, that at least one principal personally used an d discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1), and that the firearm caused great bodily injury within the meaning of section 12022.53, subdivision (d). As to count 2, the attempted murder of Agent Cr uz, the jury found that Martinez and O'Neill knew that Agent Cruz was a peace officer performing his duties within the meaning of section 664, subdivision (e), and that Martinez personally used a car as a dead ly weapon within the meaning of section 12022, subdivision (b)(1). The jury also found that Martinez

1 Unless otherwise indicated, all subsequent statutory references are to the Penal Code.3 personally inflicted great bodily injury wi thin the meaning of section 12022.7, subdivision (a), w ith respect to counts 2, 3 and 4. In bifurcated proceedings, the court found that Martin ez had one strike prior and that O'Neill had one pr ison prior. The court sentenced Ma rtinez to a total determinate term of 13 years, plus consecutive indetermin ate terms of 85 years to life and life with the possibility of parole. The cour t sentenced O'Neill to a total te rm of four years, plus 15 years to life with the possibility of parole, plus 25 years to life with the possibility of parole. On appeal, each defendant raises several cl aims of error. Martinez contends that (1) there was insuffici ent evidence that he intended to kill Agent Cruz to support his conviction on count 2; (2) the court erred by not instructing the jury that implied malice cannot support a finding of inte nt to kill; (3) the court should have stayed his sentence on count 5 because evadin g Agent Cruz and the attempted mu rder of Agent Cruz constituted a continuous course of conduct; and (4) the aggregate sentence of 98 years plus a life term is cruel and unusual punishment under the state and federal constitutions. O'Neill contends that there is insuffi cient evidence to support hi s conviction on count 1 as an aider and abettor, and that there is insufficien t evidence to support his convictions on the remaining counts based on a theory of natu ral and probable consequences. Martinez and O'Neill also raise claims of sentencing error. For the reasons explained in Section III.A.5., post , we modify the trial court's sentence on count 1 as to Martinez and otherwis e affirm the judgment as to him. As to O'Neill, we affirm his conviction on count 1. However, we agree with his contention that4 the evidence was insuffi cient to support his conviction on counts 2 through 5 and we therefore reverse the judgment as to him on those counts.
II. FACTUAL BACKGROUND A. The Peoples' Evidence At approximately 1:00 a.m. on April 23, 2011, Robert Romero stepped outside of Wild Woolly's bar on the corner of Broadw ay and Davidson in Chula Vista to make a phone call. Romero wa lked across the street to get aw ay from the noise from the bar. After crossing the street, Romero saw two, or possibly three, men walk out from the alley behind the bar, coming toward him. As the men approached, one asked Romero "Where are you from?" and said "Fuck VCV." Before Romero could respond, one of the men shot Romero twice in the ch est. Romero fell to the gr ound. The men continued to approach Romero as he crawle d backward, yelling at the shoo ter to stop. The same man shot Romero three more times, in the side, st omach and leg. The men then ran away. At trial, Romero testified that he could not identify the shoote r, but said that the man's size and skin color matched Martinez's. One of the bullets pierced both of Romero's lungs and one of his lungs collapsed. Two bullets remain lodged in Romero's back and one is his left leg. Romero was hospitalized for al most a month. At the time of trial, he continued to experien ce constant pain. After the perpetrators fled, Romero ma naged to stand up and begin walking back toward Wild Woolly's. Aro und the same time, Agent Cruz was patrolling the area near Wild Woolly's and saw a crowd gathering at the intersection of Broadway and Davidson.5 Agent Cruz turned on to Davidson, where a bystander told him that someone had been shot. As Agent Cruz was as king the bystander for more info rmation, Romero walked up to Agent Cruz's car and pulled open his shir t, revealing the gunshot wounds. Romero told Agent Cruz that he had been shot. As Agent Cruz picked up his microphone to call for help, several members of the crowd were pointing to East Park Lane, the alley behind the bar where cars were parked . Agent Cruz told Romero that help was on the way and then drove toward the alley, wh ere he saw a car's brake lights, and then its reverse lights, turn on. Agent Cruz could hear people in the crowd shouting "That's the car. They are over there. They ar e in that car." Agent Cruz followed the car as it headed north on East Park Lane. When Agent Cruz caught up with the car, a white Toyota Solara, he turned on his police cruiser's overhead lights. The Solara did not pull ove r. As Agent Cruz continued following the car, he radioed the direction of travel and a description of th e Solara and its license plate number. The Solara ran through a stop sign, but then slowed down as Agent Cruz approached. Fearing an ambush, Agent Cr uz hung back. The car then abruptly accelerated to 30 or 40 miles per hour. Agen t Cruz followed the Solara, maintaining a distance of 10 to 15 yards. The Solara turn ed onto Beech Avenue and Agent Cruz again radioed the direction of travel and turned on his siren. The Solara sped through two more stop signs and bottomed out twice, sending sp arks from under the car. The Solara then turned onto Madrona Street, a cul-de-sac, an d drove slowly down the street and around the loop.6 Agent Cruz followed the Solara onto Madrona, but stayed in the straight part of the road, facing the loop. Agent Cruz stopped hi s car close to the left side of the street, next to a parked truck. Agent Cruz positione d his patrol car so that the driver of the Solara would be forced to exit the loop of the cul-de-sac on the right, passing the patrol car on its passenger side, if he attempted to flee. When Agent Cruz pulled his car into position, the Solara stopped and faced him. Ag ent Cruz saw a male driver and O'Neill in the passenger seat. Agent Cruz testified that he made eye contact with both men and that neither man reacted or showed any emotion. The driver of the Solara pulled the car out of Agent Cruz's field of vision. Agent Cruz go t out of his patrol car so that he could see the Solara. The Solara was facing Agent Cruz . Agent Cruz again made eye contact with both men, drew his gun and pointed it at the dr iver. Agent Cruz shouted repeatedly at the men to show their hands and turn off the car. The driver of the Solara revved the car's engine and drove directly at Agent Cruz. Agent Cruz fired his gun at the car five times in rapid succession. The Solara remained on its path toward Agent Cruz, who attempted to take cover inside his patrol car. The Solara hit the driver's side door of Agent Cr uz's patrol car, which in turn hit Agent Cruz and sent him head first into the roof of th e patrol car. Agent Cruz momentarily lost consciousness. The Solara ran over Agent Cr uz's leg and foot, crushing part of his leg between the car door and frame. Agent Cruz ra dioed for help. He saw the Solara behind him, heading out of the cul-de-sac. CVPD officer, Eric Thunberg, responded to Agent Cruz's call and headed to Agen t Cruz's location. Thunberg saw the Solara make a wide right turn onto Beech from Madrona. He later identified Martinez as th e driver of the car.7 Because Thunberg had just he ard Agent Cruz's radio call reporting that he was hurt, Thunberg went to assist Agent Cruz rather than pursue the Solara. Agent Cruz's injuries incl uded a broken left foot, crushed shin, soft tissue damage to his left knee, hip and right arm, a concu ssion, bruises on his face , head and chest and cuts to his right arm and chest from the pa trol car's door. Agent Cruz continued to experience pain and discomfort at the time of the trial. Shortly after Agent Cruz left Wild Wool ly's to pursue the Solara, another police officer arrived at the bar. He saw a crowd outside and Romero ly ing on the ground. Someone in the crowd shouted that one of the men who had approached Romero was wearing a Padres jacket. Romero could not re call what the suspects had been wearing. Additional police officers arrived to contain the scene and begin an inve stigation. Six .22 caliber ammunition rounds, including one unfir ed cartridge and five fired casings, were found in a dumpster in the a lley next to Wild Woolly's. The bar's video surveillance footage from the timeframe of the shooting showed two people walking out of the alley and then running back down the alley. Th e video also showed someone opening the dumpster and placing something inside. In addition, the video had footage of Agent Cruz's patrol car turning down the alley a nd proceeding northbound. After cordoning off the path of Agent Cruz's pursu it, police found a knife and a lo aded revolver in the gutter. Fingerprints were found on the gun, bu t they did not have enough detail to be identified. When tested, the gun fired only in termittently. It was determined that the expended cartridges found in the dumpster ha d come from the revolve r that police found in the gutter. Martinez's brot her was the owner of the Sola ra. When questioned by police8 on the morning of April 23rd, he told the o fficers that Martinez had borrowed the car the night before and had not yet returned it. The Solara was found later that day, parked in a walkway near a church. There was a bullet hol e in the hood of the car. Inside the car, police found a box containing .22 caliber cartridges that were consistent with the casings found in the dumpster. O'Neill's fingerprints were found on the Solara 's passenger's side door and Martinez's palm print was foun d on the hood. Investigators also found Martinez's DNA on the steering wheel and the driver's side door, and on a nearby picnic table and wall. Additionally, a Vons receipt fo r a six-pack of beer dated April 22 at 7:39 p.m., which police found near the Solara, co rresponded with video surveillance footage from Vons that depicted two men dressed like the men seen running do wn the alley in the Wild Woolly's surveillance video. One of the men shown on the recording was wearing clothing that matched the clothi ng found in O'Neill's home. At trial, CVPD detective Bryan Maddox te stified as an expert on criminal street gangs. Maddox identified both O'Neill and Martinez as lo ngtime members of the Otay criminal street gang. 2 Maddox testified that the Otay gang is a rival of the Varrio Chula Vista street gang, or VCV, which claims Wild W oolly's as part of its territory. He stated that gang members go into rival gang territory to commit crimes and to expand their own territory. According to Maddox, because of th e danger associated w ith going into rival territory, gang members on such missions might not wait to find a known rival gang

2 Both men had admitted to being Otay members and they were documented as gang members by the CVPD, as well. O'Neill al so stipulated to being a gang member. He has multiple gang-related tattoos, including one on his head that reads "fuck CV" and another across his stomach that says "Otay."9 member to assault. Instead, they assault anyone who they think may be associated with the rival gang. Maddox told the jury that committing a crime involving a police officer, even just running away from police, is a crime that el evates a gang member's status. Further, "[c]ommitting a violent assault against [a la w enforcement] office r, [particularly] on the heels of committing another violent assault, . . . is considered the cream of the crop when it comes to gang crimes... ." Maddox testified that murder s of rival gang members and police officers, as well as evad ing police, are crimes that ar e committed for the benefit of the gang. B. The defense Defense counsel argued that neither Martinez nor O'Neill was involved in the shooting of Romero. Both counsel stressed that there were no ey e witnesses to the shooting. Defense counsel posited that the sh ooter could have been an enemy of Romero who had recently been released on bail for alle ged heroin distributi on, and who had also recently testified as a witness in a murder trial. With respect to the attempted murder of Agent Cruz, Martinez's counsel argued that Martinez was merely trying to evade Agent Cruz and did not intend to harm him. C ounsel theorized that Martinez tried to evade Agent Cruz because he feared being caught drinking and driving, partic ularly because he was not yet 21. Martinez's counsel told the jury that Martinez had driven toward Agent Cruz, rather than around him, because he was trying to avoid being s hot by Agent Cruz. O'Neill's counsel contended that there was no reliable evidence that O'Neill was in the car at the time it hit Agent Cruz, and that even if O'Neill was in the car, the prosecution10 failed to establish that O'Neill had done an ything that would make him liable as an accomplice to the crimes.
III. DISCUSSION A. Martinez's Appeal 1. The evidence is sufficient to suppor t Martinez's convicti on for the attempted murder of Agent Cruz In reviewing a claim of insuffi ciency of the eviden ce, this court's role is limited. " ' "The proper test for determ ining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trie r of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" ' " ( People v. Smith (2005) 37 Cal.4th 733, 738.) "[T]he court must review the whole record in the light mo st favorable to the judgment below to determine whether it discloses substantia l evidence—that is, evidence which is reasonable, credible, and of solid value— such that a reasonable trier of fact could find the defendant guilty be yond a reasonable doubt." ( People v. Johnson (1980) 26 Cal.3d 557, 578.) " 'Substa ntial evidence includes ci rcumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citation.] We ' " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " [Cita tion.]' [Citation.]" ( People v. Clark (2011) 52 Cal.4th 856, 943.) Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward ac complishing the inte nded killing. ( People v. Ervine (2009) 47 Cal.4th 745, 785.) Attempted murder also requires express malice, meaning11 that the assailant desires the victim's death or knows to a substan tial certainty that the victim's death will occur. ( People v. Booker (2011) 51 Cal.4th 141, 178 ( Booker ).) "Intent to unlawfully kill and express malic e are, in essence, 'one and the same.' [Citation.]" ( People v. Smith , supra , 37 Cal.4th at p. 739.) In contrast, a murder conviction may be based on implied malice. "Implied malice does not require an intent to kill. Malice is implied wh en a person willfully does an act, the natural and probable consequences of which are dangerous to huma n life, and the person knowingly acts with conscious disregard for the danger to life that the act poses." ( People v. Gonzalez (2012) 54 Cal.4th 643, 653.) Intent to kill may be inferred from the defendant's acts and the circumstances of the crime. ( People v. Smith, supra , 37 Cal.4th at p. 741.) " 'There is rarely direct evidence of a defendant's inte nt. Such intent must usually be derived from all the circumstances of the attempt, incl uding the defendant's actions.' " ( Ibid. ) "Whether a defendant possessed the requisite intent to k ill is, of course, a question for the trier of fact." ( People v. Lashley (1991) 1 Cal.App.4th 938, 946.) Martinez contends that the record does no t contain substantial evidence that he harbored the specific intent to kill Agent Cruz. He argues that, at most, only implied malice can be inferred from his actions, and th at this is insuffici ent to support his conviction for attempted murder. Agent Cruz testified that once the Solara was stopped at the end of the cul-de-sac and was facing Agent Cruz's patr ol car, Agent Cruz got out of the patrol car, drew his gun and yelled repeatedly at Martin ez and O'Neill to show their ha nds and get out of the car.12 Rather than surrender, according to Agent Cruz, Martinez revve d the Solara's engine and drove directly at Agent Cruz. Agent Cruz fired his weapon and then attempted to take cover inside the patrol car. Because of th e speed of the oncoming car, Agent Cruz was hit by the Solara before he was completely inside his patrol car. Martinez argued at trial, and reiterates on ap peal, that he "drove forward out of the cul-de-sac, not necessarily intending to kill Agent Cruz but to escape from law enforcement and to avoid being shot and killed by the office r." He contends that the prosecution's evidence does not support a findi ng of an intent on his part to kill Agent Cruz because, "by driving at Cruz, [Martin ez] had a better chance of scaring Cruz or possibly injuring him, thereby enablin g Martinez to escape with his life." We reject Martinez's argument that the evidence was insufficient to support the jury's finding of actual malice. Martinez's argument does not undercut the prosecution's evidence. Rather, it amounts to an alternativ e theory about his state of mind when he drove directly at Agent Cruz—a fact that he does not dispute. Martinez's counsel presented this theory to the jury, which rejected it. The jury's finding that Martinez intended to kill Agent Cr uz by driving directly at him was reasonable. 3 Agent Cruz's

3 As in Booker, supra, 51 Cal.4th 141, the case that Martinez attempts to distinguish, the totality of the evidence here was suffici ent to sustain the attempted murder conviction. In Booker , the court held that the jury's conclusi on that the defendant was substantially certain death would resu lt was reasonable, based on the defendant's awareness that a three-month-old infant was asleep and alone in th e apartment when he placed flammable materials on a stove and turned it on. ( Booker , at p. 178.) The jury's conclusion that Martinez either intended to kill Agent Cruz or was substantially certain that Agent Cruz's death would result, is simi larly reasonable based on the fact that once he was cornered in the cul- de-sac, instead of surrendering , Martinez drove the Solara directly at Agent Cruz.13 testimony concerning Martinez's actions supports the jury's determination, and it is not this court's function to reweigh the evidence. ( People v. Nelson (2011) 51 Cal.4th 198, 210 [" '[I]f the circumstances reasonably justif y the jury's findings, the judgment may not be reversed simply because th e circumstances might also reas onably be reconciled with a contrary finding.' [Citation.] We do not re weigh evidence or reevaluate a witness's credibility"].) 2. The trial court was not required to in struct sua sponte on the definition of implied malice Martinez contends that the trial court erre d by failing to provid e the jury with the definition of implied malice and failing to spec ifically instruct th e jury that implied malice cannot support a conviction for attempte d murder. He argues that absent such instructions, "the jury was unable to distin guish between the condu ct/mental state which constitutes implied malice versus express malice or specific inte nt to kill." According to Martinez, the "unique facts of this case re quire[d] the jury's understanding of the subtle dividing line between 'intent to kill' and th e conduct/mental state that amounts only to implied malice." Martinez argues that, at most , he harbored implied malice and that if the court had instructed the ju ry on the distinction, it is lik ely that the jury would have found that he lacked express malice and thus would not have convic ted him of attempted murder. The trial court instructed the jury that to find a de fendant guilty of attempted murder on count 2, "that person must not only intentionally comm it the prohibited act, but must do so with a specific intent and/or me ntal state. The act and the specific intent and/or mental state required are explained in the instruction for that crime...." The court14 then instructed the jury pur suant to the standard instru ction on attempted murder (CALCRIM No. 600). The inst ruction stated that the prosecution was required to show that Martinez "took at least one direct but ineffective step toward killing (another person . . . )" and that he "int ended to kill that person." The instruction also stated that "[a] dire ct step requires more than merely planning or preparing to commit murder or obtaining or arranging for someth ing needed to commit murder. A direct step is one that goes be yond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to k ill. It is a direct movement to ward the commission of the crime after preparations are made. It is an immedi ate step that puts the pl an in motion so that the plan would have been co mpleted if some circumstan ce outside the plan had not interrupted the attempt. [¶ ] A person who attempts to commit murder is guilty of attempted murder even if, afte r taking a direct step toward killing, he or she abandons further efforts to complete the crime, or hi s or her attempt fails or is interrupted by someone or something beyond hi s or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted mu rder." (CALCRIM No. 600.) We conclude that the trial court was under no duty to instru ct the jury on the definition of implied malice. "A trial cour t has a sua sponte duty to 'instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case... .' " ( People v. Blacksher (2011) 52 Cal.4th 769, 845-846.) The definition of im plied malice, in the context of this case, was not necessary15 for the jury's understanding of its duty to determine whether Martinez intended to kill Agent Cruz. The instructions provided were explicit and clear that in order to convict Martinez on count 2, the jury was required to find that he intended to kill Agent Cruz. Further, implied malice was not an element of any of the crimes that Martinez was charged with committing. As noted, imp lied malice cannot support a conviction for attempted murder. Therefore, the implied ma lice instructions that Martinez contends were necessary—but that his counsel did not re quest at trial—had the potential to confuse the jury. (See e.g., People v. Santascoy (1984) 153 Cal.App.3d 909 ["Nothing less than a specific intent to kill must be found before a defendant can be convicted of attempt to commit murder, and the instruc tions in this respect should be lean and unequivocal in explaining to the jury th at only a specific intent to kill wi ll do"]. ) We conclude that the court did not err in not providing the jury with an instruction de fining implied malice. 4 3. The trial court could have reasonably determined that Martinez entertained separate and distinct intents and objectives with respect to the offenses charged in counts 2 and 5 Martinez next contends that the senten ce imposed for his conviction on count 5, evading a pursuing police offi cer with reckless driving (Veh . Code, § 2800.2 ), should be stayed pursuant to section 654. He argue s his conduct of evading Agent Cruz and the attempted murder of Agent Cruz were part of one continuous course of conduct with the single objective of evading law enforcement.

4 Because we conclude that the trial cour t had no duty to instru ct the jury in the manner that Martinez suggests on appeal, hi s trial counsel's failure to request such instructions did not constitute ineffective assistance. (See Strickland v. Washington (1984) 466 U.S. 668, 689 [The failure to ra ise unwinnable issues does not constitute ineffectiveness].)16 Section 654 provides in releva nt part: "(a) An act or omission that is punishable in different ways by different prov isions of law shall be punish ed under the provision that provides for the longest potential term of impr isonment, but in no case shall the act or omission be punished under mo re than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." Section 654 prohibits multiple punishment where a single criminal act or omission violates more than one penal statute. Th is statutory prohibition has been extended to cases in which an indivisible course of co nduct with a single objective violates several different penal statutes. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.) "If all of the crimes were merely incidental to , or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indi visible course of conduct. [Citation.]" ( People v. Perry (2007) 154 Cal.Ap p.4th 1521, 1525.) The absence of an express finding from a trial court concerning the potential applicability of section 654 does not mandate reversal on appeal. (See People v. Coleman (1989) 48 Cal.3d 112, 162.) Rather, we review the trial court's implicit determination that section 654 does not apply, and we determine whether there is substantial evidence to support th e trial court's finding. (See People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Andra (2007) 156 Cal.App.4th 638, 640 [in reviewing17 section 654 claim, "[t]he defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence"].) Without analysis, Martinez asserts that his actions, "a t all times, including his act of driving on the sidewalk to exit the cul-de-sac on Madrona Street, indicate a clear and unambiguous single intent to ev ade law enforcement. Thus, [his] alleged act of evading an officer with reckless driving and the act of attempted murder were part of an indivisible course of conduct with a single ob jective, for purposes of section 654." The People respond that the record supports the court's conclusion that Martinez had different intents and objectives with re spect to the two crimes. In attempting to refute this contention in his reply brief, Martinez proceeds on the assumption that there was insu fficient evidence to support his conviction for attempted murder, as discusse d in Section III.A.1, ante , and that both crimes—evading an officer with reckless driving and attempted murder —were committed with the sole intent of evading arrest. We disagree. As discusse d, the jury's finding that Martinez had the specific intent to kill Agent Cruz is supporte d by sufficient evidence . The evidence was therefore also sufficient to support the court's implied finding that Martinez had two objectives, i.e., to evade arre st, and then, when he was co rnered in the cul-de-sac and decided to drive directly at Agent Cruz, an intent to kill Agent Cruz. We therefore conclude that the trial court was not required to stay Martin ez's sentence on count 5 under section 654.18 4. Martinez's sentence does not co nstitute cruel and u nusual punishment The trial court sentenced Martinez to a de terminate term of 13 years, plus two life sentences with a minimum period of 55 years before elig ibility for parole. 5 Martinez argues that this is the functional equivalent of a sentence of life without parole, and that because of his relative youth and the nature of the offenses, the sentence is cruel and unusual in violation of both the state and federal Constitu tions. Martinez did not raise this issue in the trial court. Although Mar tinez "has technically forfeited the issue on appeal because he did not raise the objection below [citation], we 'shall reach the merits under the relevant constitutional standards, in the interest of judici al economy to prevent the inevitable ineffectivene ss-of-counsel claim.' " ( People v. Russell (2010) 187 Cal.App.4th 981, 993.) Article I, section 17 of the California Constitution provides: "Cruel or unusual punishment may not be inflicted. . . ." A pris on sentence violates article I, section 17, if it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notio ns of human dignity." ( In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) In applying this test, we look to (1) the nature of the offense and the offender; (2) a comparison w ith the penalty for more se rious crimes in the same jurisdiction; and (3) a compar ison with punishment imposed for the same offense in different jurisdictions. ( Id . at pp. 425-427.) The "[d]efendant must overcome a

5 Martinez states in his br iefing on appeal that the mini mum period before eligibility for parole is 85 years. However, as discusse d in the following sec tion, by operation of section 12022.53, subdivision (e)(2), the enha ncement of a minimum period of 30 years before eligibility for parole un der section 186.22 is stayed.19 'considerable burden' to show the sentence is disproportiona te to his level of culpability. [Citation.] Therefore, '[f]indings of dispropor tionality have occurred w ith exquisite rarity in the case law.' " ( People v. Em (2009) 171 Cal.App.4th 964, 972.) The Eighth Amendment, which applies to the states thro ugh the Fourteenth Amendment to the United Stat es Constitution, prohi bits cruel and unusual punishments. It "contains a 'narrow proportio nality principle' that 'applie s to noncapital sentences.' " ( Ewing v. California (2003) 538 U.S. 11, 20.) The Eigh th Amendment " 'does not require strict proportionality between crime and se ntence. Rather, it fo rbids only extreme sentences that are "grossly dispro portionate" to the crime.' " ( Id . at p. 23.) As with claims under our state Constitution, in de termining whether a sentence violates the federal constitutional guarantee against cr uel and unusual punishment, a court may consider "the gravity of the offense and the harshness of the penalty." ( Solem v. Helm (1983) 463 U.S. 277, 292.) "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences [u nder the federal Constitution are] . . . exceedingly rare." ( Rummell v. Estelle (1980) 445 U.S. 263, 272.) Martinez maintains that his sentence constitutes cruel and unusual punishment because "he committed th e instant offenses at a relativel y young age—just 12 days after his 20th birthday." He contends that the reasoning in Graham v. Florida (2010) 560 U.S. 48 ( Graham ), Miller v. Alabama (2012) 567 U.S. __ , 132 S.Ct. 2455, 2470 ( Miller ) and People v. Caballero (2012) 55 Cal.4th 262 ( Caballero ), all of which prohibit the20 imposition of life sentences on juvenile offenders, apply to this case. 6 However, Martinez was 20 years old, not a juvenile, at the time he committed th e crimes charged in this case. While youth is a consideration in the disproporti onality analysis ( People v. Sullivan (2007) 151 Cal.App.4th 524, 570), it does no t serve as a basis to conclude that Martinez's sentence is unconstitu tional. No case has held that a 20-year-old adult is similarly situated to a minor for purposes of determining whether a sentence is cruel or unusual. Martinez has also not presented any evidence that he "was an unusually immature youth and did not foresee the risk he was creating" by committing these crimes. ( People v. Thompson (1994) 24 Cal.App.4th 299, 306. ) In sum, the constitutional prohibition against sentencing j uvenile offenders to life with out the possibility of parole solely for a nonhomicide offens e is not applicable here. ( Cf. Graham, supra , 560 U.S. 48; People v. Mendez (2010) 188 Cal.App.4th 47.) Martinez also argues that his sentence constitutes cruel and unusual punishment because it is disproportionate to the crimes that he committed, particularly in light of his relative youth and "minimal criminal history." He states th at his "prior juvenile offenses, involving five separate incidents, are prim arily theft-related offenses and [did] not

6 Graham prohibits the impos ition of a life sentence withou t the possibility of parole on juveniles for nonhomicide offenses. ( Graham , 560 U.S. at p. 82.) Miller expanded on the principles set forth in Graham and held that " mandatory life without parole for those under the age of 18 at the time of their crim es violates the Eight Amendment's prohibition on 'cruel and unusual punishments.' " ( Miller , 132 S. Ct. at p. 2460, emphasis added.) Caballero held that the imposition of a life senten ce with a parole eligibility date that falls outside a juvenile defendant's natura l life expectancy is impermissible under Graham . ( Caballero , 55 Cal.4th at p. 265.)21 involve actual injury to any pe rsons." Martinez also points out that his adult criminal history consists of one prior strike conviction that he incurred when he was 16, that also did not involve actual injury to any persons. As discussed, Martinez's age does not provide a basis for finding that his sentence violates the state or federal prohibition on cruel and unusual punishment. Further, Martinez's prior criminal history is far from minimal. The fact that he has not previously injured anyone does not negate the seriousness of his prior criminal acts or the danger that he poses. Martinez's strike prior, for which he was on parole for at the time of the instant crimes, was carjacking with a firearm. Hi s prior crimes as a juvenile include multiple burglaries, robbery, possessi on of a knife, resisting an officer and vandalism. In any event, the lack of a signifi cant criminal record is not determinative. ( People v. Martinez (1999) 76 Cal.App.4th 489, 497.) While the current offenses did not result in the death of either victim, this fort uitous fact does not diminish the extremely serious nature of the crimes that Martinez committed. This is not one of the extreme and exce edingly rare cases where the sentence is grossly disproportionate to the offense. ( Harmelin v. Michigan (1991) 501 U.S. 957, 1001, 1005 [upholding life sent ence without parole for po ssession of a large amount of drugs by a first-time felon]; Ewing v. California , supra , 538 U.S. at pp. 19-20, 28 [holding California's "Three Strikes" sentence of 25 years to life for $1,200 felony theft with prior thefts and burglary , was not cruel and unusual]; Rummell v. Estelle , supra , 445 U.S. 263 [upholding life sentence for a recidivi st thief].) Martinez 's claim of cruel and unusual punishment thus fails.22 5. The trial court erred by imposing bo th the penalty provision of section 186.22 and the firearm enhancement under sect ion 12022.53, subdivisions (d) and (e)(1) on count 1 The jury convicted Martinez of attempte d murder (count 1) and found true the allegation that a principal personally used a handgun during the offense, within the meaning of section 12022.53, s ubdivisions (d) and (e)(1). Th e jury also found that the offense was committed for the be nefit of, at the direction of, or in association with a criminal street gang under sec tion 186.22, subdivision (b)(1). At sentencing, the trial court imposed a term of life in prison with the possibility of parole, with a minimum 30- year parole eligibility term under se ction 186.22, subdivision (b)(5), 7 plus an additional consecutive term of 25 years to life under sect ion 12022.53, subdivis ions (d) and (e)(1). Martinez contends that the trial court e rred by imposing penaltie s under both sections 186.22 and 120 22.53, because of the limitati on set forth in subdivision (e)(2) of the latter. The People concede that the trial court e rred in this regard, but contend that the 30-year parole eligibility period should be stay ed and not, as Martinez requests, stricken. We accept the People's concession and agre e that the sentence sh ould be stayed. "Section 12022.53, subdivision (e)(1) incr eases the scope of potential liability for firearm use in a case where there is a finding pursuant to section 186.22." ( People v. Salas (2001) 89 Cal.App.4th 1275, 1281.) S ection 12022.53, subdivision (d), the firearm use provision applicable to the present ca se, requires the impositio n of a 25-year-to-life sentence consecutive to the sent ence imposed for the underlyi ng felony when the accused

7 Section 186.22, subdivisi on (b)(5), requires a minimum parole eligibility period of 15 calendar years. That term wa s doubled to 30 years because of Martinez's strike prior.23 "personally and intentionally discharges a fi rearm and proximately causes great bodily injury . . . or death." (§ 12022.53, subd. (d ).) Where, as here, findings have been made pursuant to section 186.22, section 12022.53, subdivision (e)(1), crea tes an exception to the personal use requirement of section 12022.53, subdivisions (b) through (d). (§ 12022.53, subd. (e)(1).) If a finding under secti on 186.22 is made, section 12022.53 applies if any principal, not just the accus ed, personally used a firearm in the commission of the underlying felony. ( People v. Salas, supra , 89 Cal.App.4th at p. 1281.) "However, as a consequence of this expa nded liability under section 1 2022.53, subdivision (e), the Legislature has determined to preclude th e imposition of an additional [sentence] enhancement under section 186.22 . . . unless the accused personally used the firearm." ( Salas, at pp. 1281–1282.) The People concede that the jury did not find that Martinez personally used a firearm. Rather, the jury found only that "a principal" pe rsonally used a firearm in the commission of the offense charged in count 1. Section 12022.53 , subdivision (e)(2), therefore prevents the trial court from execu ting both the penalty un der section 12022.53, subdivisions (d) and (e)(1), and the penalty provided by section 186.22, subdivision (b)(5). With respect to whether the second penalty should be stayed or stricken, we conclude that when a jury makes a sec tion 186.22 enhancement finding, and section 12022.53, subdivision (e)(1) al so applies, section 12022.53, subdivision (e)(2), permits the trial court to impose and stay the sec tion 186.22 enhancement, unless the personal use or discharge criterion in section 12022.5 3, subdivision (e)(2) is met. (See People v.24 Gonzalez (2008) 43 Cal.4th 1118, 1129 ["section 12022.53 was enacted to ensure that defendants who use a gun remain in prison for the longest time possible and that the Legislature intended the trial court to stay, ra ther than strike, prohibited enhancements under section 12022.53"]; People v. Sinclair (2008) 166 Cal.App.4th 848, 854 [concluding section 12022.53, subdivision (e)(2 ), authorized the trial court to impose and stay gang enhancement under section 186.22 where defendant did not personally use a firearm].) The judgment is modi fied to stay the 30-year mi nimum parole eligibility term under section 186.22, subdivision (b). B. O'Neill's Appeal 1. Sufficiency of the evidence to suppo rt O'Neill's conviction for aiding and abetting the attempted murder of Romero A person aids and abets the commission of a crime when he acts with knowledge of the unlawful purpose of th e perpetrator and with the inte nt or purpose of encouraging or facilitating the commission of the crime, and his act or advice in some manner aids, promotes, encourages or instigates the commission of the crime. ( People v. Beeman (1984) 35 Cal.3d 547, 560-561.) Neither presen ce at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish ai der and abettor liability. (See People v. Durham (1969) 70 Cal.2d 171, 181; In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.) However, mere presence at the scene of a crime may be consid ered together with other meaningful evidence, su ch as companionship and co nduct before and after the offense, in assessing aider and abettor liability. ( In re Lynette G. (1976) 54 Cal.App.3d 1087.)25 "Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances su rrounding the offense." ( People v. Pre (2004) 117 Cal.App.4th 413, 420.) In determining whethe r the evidence in this case was sufficient to support the jury's verdict that O'Neill aided and abetted the attempted murder of Romero, we view the evidence, and draw all inferences, in th e light most favorable to the judgment. ( People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Pre, supra, at p. 421.) O'Neill contends that there was no eviden ce that he assisted or encouraged the attempted murder of Romero, or that he even knew that Martinez intend ed to shoot Romero. We disagree. The evidence showed that O'Neill pur chased beer with Martinez hours before the shooting and accompanied Mar tinez into rival gang territory, where one of the men issued a verbal ch allenge to Romero before Mar tinez shot him. O'Neill then fled the scene w ith Martinez. While the evidence of O'Neill's conduc t during the commission of the shooting is thin, we conclude that it is sufficient to support the finding that O'Neill aided and abetted the attempted murder of Rome ro. Like the defendant in People v. Campbell (1994) 25 Cal.App.4th 402, O'Neill "did not independently ha ppen by the scene of the crime." ( Ibid .) Rather, Martinez and O'Neill knowingly approach ed and challenged Romero, acting in concert. O'Neill stood by as Rome ro took five bullets. Martinez and O'Neill then fled the scene together. 8

8 While that flight, alone, would not be sufficient to support O' Neill's conviction, it is a relevant factor in determining his consciousness of guilt. ( People v. Chagolla (1983) 144 Cal.App.3d 422, 429.)26 Additionally, the testimony of the pr osecution's gang expert supported the prosecutor's theory that O'Neill and Martinez went into rival gang terr itory together, with the intention of shooting a member or member s of a rival gang, on behalf of their own gang. Since there was no evidence that O'Ne ill "was surprised by" Martinez's "conduct or [that he was] afraid to interfere with [Martinez], the jury could reasonably conclude" that O'Neill was there to par ticipate and intimidate Romero. 9 ( People v. Campbell,

supra , 25 Cal.App.4th at p. 410.)

9 The cases on which O'Neill relies, Pinell v. Superior Court of San Francisco (1965) 232 Cal.App.2d 284 ( Pinell ) and Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262 ( Juan H. ) do not persuade us otherwise. In Pinell the victim was attacked and abducted by two men and was taken to the petitioner's home, where she was sexually assaulted by the men who abducted her. ( Pinell , at p. 286.) The victim was subsequently taken to the petitioner's room. The petitioner did not harm her, expressed anger at the two perpetrators and helped the victim by bandagi ng her bleeding eye a nd telling her to check her purse before leaving. ( Id . at p. 288.) There was no evidence that the petitioner was aware of the actions of the other two men before they brought her to the petitioner's home. ( Ibid. ) Further, while the two perpetrators fl ed the scene, petiti oner stayed in his home. ( Ibid. ) Here, the evidence s howed that O'Neill and Martinez purchased beer together hours before the crime, approached Romero together, and fled the scene of the shooting together. While Juan H. is closer factually to this case, it is still distinguis hable and, in any event, is not binding authority on this court. There, two s hots were fired at the trailer where Juan H. and his family lived. ( Juan H. , 408 F.3d at p. 1266.) About one-and-ahalf hours later, Juan and his older brother, Felix Merendon, were outside in the trailer park and approached two men whom they suspected of shooting their trailer. ( Ibid. ) Merendon asked the men whether they had shot the trailer and one of the men responded that he did not know what Me rendon was talking about. ( Id . at p. 1267) Merendon immediately pulled a shotgun from his pants and shot the man, who later died. ( Ibid. ) Merendon fled in his car, and Juan H. ran home to the family's trailer. ( Ibid. ) In overturning Juan's conviction for aiding a nd abetting first degree murder, the Ninth Circuit concluded that, unlike he re, the record did "not support a conclusion that Juan H. left the murder scene in comm on 'flight' with Merendon." ( Id . at p. 1277.) Further, the police never apprehended Merendon and, th e Ninth Circuit concluded, the state had prosecuted Juan H. more harshly as a result. ( Id . at p. 1279, fn. 16.)27 2. There is insufficient evidence to su pport O'Neill's conviction as an aider and abetter of the crimes involving Agent Cruz O'Neill claims that there is insufficient evidence to support his convictions on counts 2 through 5 on the theory that he di rectly aided and abetted Martinez in the commission of the crimes involving Agent Cruz . We agree. The People point to the facts that O'Neill and Martinez were members of the same gang and that O'Neill did not surrender when the Solara was st opped in the Madrona Street cul-de-sac, as evidence that O'Neill aided and abetted Martinez in resisti ng arrest, evading Agent Cruz and attempting to kill Agent Cruz by ru nning him over. While the fact that O'Neill fled the scene of the shooting of Romero is ev idence of his intent with respect to that crime, we do not agree that his failure to surrender, on ce cornered in th e cul-de-sac, constitutes evidence that O'Neill intended to assist Martin ez in the ensuing crimes. There was no evidence of any conduct or words on O'Neill's pa rt that would demonstrate that he assisted or encouraged Martinez in the commissi on of these crimes. Recognizing the lack of any evidence of O'Neill's conduct with respect to the offenses charged in counts 2 th rough 5, the People sought an d obtained a jury instruction on the natural and probable cons equences theory of aiding and abetting liability. In his closing argument, the prosecutor urged the jury to convict O'Neill on counts 2 through 5 based on the theory that the chain of events that occurred after Romero was shot was a natural and probable consequence of that shooting. The trial c ourt instructed the jury that "[t]o prove that the de fendants are guilty of [counts 2 th rough 5], the People must prove that: [¶] 1. The defe ndants are guilty of Attempted Murd er as charged in Count One [the shooting of Romero]. 2. Du ring the commission of Attempted Murder as charged in28 Count One, a coparticipant in that Attempted Murder as charged in Count One, committed the crimes of Count[ s 2 through 5] and 3. Under all of the circumstances, a reasonable person in the defe ndant's position would have kn own that the commission of Count[s 2 through 5] were a natural and prob able consequence of the Attempted Murder as charged in Count One." The instruction went on to define a copa rticipant as "the perpetrator or anyone who aided and abetted the perpetrator . . . " and a natural and prob able consequence as "one that a reasonable pers on would know is likely to happen if nothing unusual intervenes." The instruction further stated that "[i]n deciding whether a consequence is natural and probable, consider all of the circ umstances established by the evidence. If the crimes of Count[s 2 through 5] were commi tted for a reason independent of the common plan to commit the Attempted Murder as ch arged in Count One, then the commission of Count[s 2 through 5] were not a natural and probable cons equence of Attempted Murder as charged in Count One." As discussed, "[a]ider-abettor liability ex ists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator's criminal intent and with the intent to help him carry out the offense." ( People v. Miranda (2011) 192 Cal.App.4th 398, 407, citing People v. Beeman, supra, 35 Cal.3d at pp. 560–561.) "The lia bility of an aider and abettor extends also to the natural and [probable] consequences of the acts [the defendant] knowingly and intentionally aids and encourages." ( People v. Beeman, supra , at p. 560; People v. Prettyman (1996) 14 Cal.4th 248, 260 ( Prettyman ).) "Under the natura l and probable conse quences doctrine,29 an aider and abettor is guilty of not only the offense he intended to facilitate or encourage, but also of any reasonably fore seeable offense committ ed by the actual perpetrator. The defendant's knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilit ated, are sufficient to impose liability on him for any reasonably foreseeabl e offense committed as a consequence by the perpetrator." ( People v. Miranda, supra, 192 Cal.App.4th at pp. 407- 408.) The natural and probable consequences doctrine "is based on the recognition that 'aiders and abettors should be responsible fo r the criminal harms they have naturally, probably and foreseeably put in motion.' " ( Prettyman, supra , 14 Cal.4th at p. 260.) In determining whether the nontarget offense co mmitted by the defendant's confederate was a natural and probable consequence of the targ et crime the defendant aided and abetted, the question is not whether the defendant ac tually foresaw the co nfederate's commission of the nontarget offense, but whether, ju dged objectively, th e commission of the nontarget crime was reas onably foreseeable. ( People v. Medina (2009) 46 Cal.4th 913, 920; People v. Miranda, supra , 192 Cal.App.4th at p. 408.) Thus, "[l]iability under the natural and probable conseque nces doctrine 'is measured by whether a reasonable person in the defendant's position woul d have or should have know n that the charged offense was a reasonably foreseeable consequenc e of the act aided and abetted.' " ( People v. Medina, supra , at p. 920.) Further, the nontarget offenses " ' "must be the ordinary and probable effect of the wrongful act specifically ag reed on, so that the conn ection between them may be30 reasonably apparent, and not a fresh and inde pendent product of the mind of one of the confederates outside of, or foreign to , the common design." ' [Citation.]" ( Prettyman,

supra , 14 Cal.4th at pp. 260-261.) " 'A "natural " consequence is one which is within the normal range of outcomes that may be reason ably expected to occur if nothing unusual has intervened. "Probable" means likely to happen.' " ( People v. Leon (2008) 161 Cal.App.4th 149, 158.) The doctrine of natu ral and probable cons equences is commonly applied, for example, where a "defendant as sist[s] or encourage[s] a confederate to commit an assault with a dead ly weapon or with potentia lly deadly force, and the confederate not only assault[s] but also mu rder[s] the victim" or "where a defendant assist[s] in the commission of an armed robbery, during whic h a confederate assault[s] or trie[s] to kill" the robbery victim. ( Prettyman , supra, 14 Cal.4th at pp. 262-263.) We agree with O'Neill that there was not substantial ev idence to support a finding that he aided and abetted the offenses charge d in counts 2 through 5 based on a natural and probable consequence theory. The actio ns that Martinez to ok once Agent Cruz began to pursue the Solara, specifically hi s decision not to surrender and the ensuing confrontation and attempt to run down Agen t Cruz in the Madrona street cul-de-sac, cannot be considered to be objectively, re asonably foreseeable consequences of the shooting of Romero outside of Wild Woolly's bar. (See Prettyman , supra , 14 Cal. 4th at p. 268 ["a conviction may not be based on the jury's generalized belie f that the defendant intended to assist and/or encourage unsp ecified 'nefarious' conduct"].) Further, Martinez's evasion of Agent Cruz, his reckle ss driving and his attempted murder of Agent Cruz are not crimes that can re asonably be deemed closely rela ted to the target offense of31 shooting Romero. Unlike a mu rder stemming from a planne d assault with a deadly weapon, the collateral crimes here did not ha ve a sufficiently "close connection" to the target crime to support a conviction for aidi ng and abetting based on a theory of natural and probable consequences. ( Id. at p. 269 ["To trigger app lication of the "natural and probable consequences" doctrine, there must be a close connection between the target crime aided and abette d and the offense actually committed" ].) The events that occurred after Romero was shot were not reasonably foreseeable for purp oses of application of the natural and probable conseq uences doctrine. (See People v. Leon , supra , 161 Cal.App.4th at p. 161 [witne ss intimidation by firing a gun in the air not a natural and probable consequence of th e target offenses of burglary or illegal possession of a firearm].) The People maintain that common sense re quires that one reject "the notion that it is not probable that someone would flee after having intentionally shot another person." This much is true. What was not prob able, however, was the ensuing police chase resulting in Martinez turning into a cul-de-sac, and Martinez's attempt to kill Agent Cruz by driving the Solara directly at him. To apply the natural and probable consequences doctrine here would improperly stretch the notion of what conduct may be deemed reasonably "foreseeab le and probable." 10

10 We note the incongruity between the People's argumen t, which we accept, that O'Neill's and Martinez's senten ces on count 5 (evading an o fficer with reckless driving) should not be stayed under s ection 654 because Martinez's "initial intent was to avoid apprehension by the poli ce" but he "developed a separate intent to kill [Agent] Cruz," and their contention that the attempted murder of Agent Cruz was a natural and probable consequence of the shooting of Romero. The People's argumen t with regard to32 Because we conclude that there was not sufficient evidence to support O'Neill's conviction based on a natural a nd probable consequence theory of aiding and abetting, it was also error for the court to instruct on this theory. ( People v. Nguyen, supra, 21 Cal.App.4th at p. 528.) O'Neill's convic tions on counts 2 through 5 are reversed. 11
DISPOSITION The judgment as to Martinez is modifi ed to stay the 30-y ear minimum parole eligibility term under section 186.22, subdivis ion (b), and is otherwise affirmed. The judgment as to O'Neill on coun ts 2 through 5 is reversed and in all other respects, is affirmed. The trial court is directed to ame nd the abstract of judgment accordingly and to forward a certified copy of the amended abst ract of judgment to the Department of Corrections and Rehabilitation.

AARON, J.
WE CONCUR:
NARES, Acting P. J.

McINTYRE, J.
Martinez's separate intents su pports our conclusion that Ma rtinez's "collateral criminal act[s were not] the ordinary and probable effe ct of the common design" to shoot Romero. ( People v. Nguyen (1993) 21 Cal.App. 4th 518, 531, citing People v. Kauffman (1907) 152 Cal. 331, 335 and People v. Durham (1969) 70 Cal.2d 171, 182-183.) Rather, the collateral acts were "a fresh and independent product of the mind of [Martinez], outside of, or foreign to, the common design. ( Nguyen, at p. 531.)
11 Our reversal of O'Neill's convictions on counts 2 through 5 renders moot his remaining claims of sentencing error.