People v. Martinez CA4/1

Opinion

Filed 7/23/14 P. v. Martinez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D062720

Plaintiff and Respondent,

v. (Super. Ct. No. SCS247733)

JAMES MARTINEZ, et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San Diego County, Ana

Espana, Judge. Judgment affirmed in part, reversed in part.

Nancy Olsen, under appointment by the 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, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Heather M. Clark,

Deputy Attorneys General, for Plaintiff and Respondent. I.

INTRODUCTION

In July 2012, a jury convicted James Martinez and Sean O'Neill of the attempted

murders of Robert Romero and Chula Vista Police Department (CVPD) Agent Ricardo

Cruz (Pen. Code, §§ 187, subd. (a), 664)1 (counts 1 and 2, respectively), assault with a

deadly weapon on a peace officer (§ 245, subd. (c)) (count 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, deliberately and with premeditation, within

the meaning of section 189. The jury also found that each was a principal in the offense,

that at least one principal personally used and 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 Cruz, 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 deadly 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. 2 personally inflicted great bodily injury within the meaning of section 12022.7,

subdivision (a), with respect to counts 2, 3 and 4.

In bifurcated proceedings, the court found that Martinez had one strike prior and

that O'Neill had one prison prior. The court sentenced Martinez to a total determinate

term of 13 years, plus consecutive indeterminate terms of 85 years to life and life with the

possibility of parole. The court sentenced O'Neill to a total term 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 claims of error. Martinez contends that

(1) there was insufficient 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 intent to kill; (3) the court should have stayed his sentence on

count 5 because evading Agent Cruz and the attempted murder 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 insufficient evidence to support his conviction on count 1 as an

aider and abettor, and that there is insufficient evidence to support his convictions on the

remaining counts based on a theory of natural 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 otherwise affirm the judgment as to him. As to

O'Neill, we affirm his conviction on count 1. However, we agree with his contention that

3 the evidence was insufficient 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 Broadway and Davidson in Chula Vista to make a

phone call. Romero walked across the street to get away 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 chest. Romero fell to the ground. The men continued to

approach Romero as he crawled backward, yelling at the shooter to stop. The same man

shot Romero three more times, in the side, stomach and leg. The men then ran away. At

trial, Romero testified that he could not identify the shooter, 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 almost a month. At the time of trial, he

continued to experience constant pain.

After the perpetrators fled, Romero managed to stand up and begin walking back

toward Wild Woolly's. Around 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.

4 Agent Cruz turned onto Davidson, where a bystander told him that someone had been

shot. As Agent Cruz was asking the bystander for more information, Romero walked up

to Agent Cruz's car and pulled open his shirt, 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, where 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 are 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 over. As Agent Cruz continued following the

car, he radioed the direction of travel and a description of the 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 Cruz hung back. The car then abruptly

accelerated to 30 or 40 miles per hour. Agent Cruz followed the Solara, maintaining a

distance of 10 to 15 yards. The Solara turned 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 sparks from under the car. The Solara then

turned onto Madrona Street, a cul-de-sac, and drove slowly down the street and around

the loop.

5 Agent Cruz followed the Solara onto Madrona, but stayed in the straight part of

the road, facing the loop. Agent Cruz stopped his car close to the left side of the street,

next to a parked truck. Agent Cruz positioned 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. Agent 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 got 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 driver. 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 Cruz's patrol car, which in turn hit Agent Cruz

and sent him head first into the roof of the patrol car. Agent Cruz momentarily lost

consciousness. The Solara ran over Agent Cruz's leg and foot, crushing part of his leg

between the car door and frame. Agent Cruz radioed 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 Agent Cruz's location. Thunberg saw the Solara make a wide

right turn onto Beech from Madrona. He later identified Martinez as the driver of the car.

6 Because Thunberg had just heard 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 included a broken left foot, crushed shin, soft tissue damage

to his left knee, hip and right arm, a concussion, bruises on his face, head and chest and

cuts to his right arm and chest from the patrol car's door. Agent Cruz continued to

experience pain and discomfort at the time of the trial.

Shortly after Agent Cruz left Wild Woolly's to pursue the Solara, another police

officer arrived at the bar. He saw a crowd outside and Romero lying 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 recall what the suspects had been wearing.

Additional police officers arrived to contain the scene and begin an investigation. Six .22

caliber ammunition rounds, including one unfired cartridge and five fired casings, were

found in a dumpster in the alley 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. The 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 and proceeding northbound. After cordoning off

the path of Agent Cruz's pursuit, police found a knife and a loaded revolver in the gutter.

Fingerprints were found on the gun, but they did not have enough detail to be

identified. When tested, the gun fired only intermittently. It was determined that the

expended cartridges found in the dumpster had come from the revolver that police found

in the gutter. Martinez's brother was the owner of the Solara. When questioned by police

7 on the morning of April 23rd, he told the officers 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 hole 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 found 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 for a six-pack of beer dated April 22 at 7:39

p.m., which police found near the Solara, corresponded with video surveillance footage

from Vons that depicted two men dressed like the men seen running down the alley in the

Wild Woolly's surveillance video. One of the men shown on the recording was wearing

clothing that matched the clothing found in O'Neill's home.

At trial, CVPD detective Bryan Maddox testified as an expert on criminal street

gangs. Maddox identified both O'Neill and Martinez as longtime 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 Woolly'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 the danger associated with 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 also 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." 8 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 elevates a gang member's status. Further,

"[c]ommitting a violent assault against [a law enforcement] officer, [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 murders of rival gang members and

police officers, as well as evading police, are crimes that are 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 eye witnesses to the

shooting. Defense counsel posited that the shooter could have been an enemy of Romero

who had recently been released on bail for alleged heroin distribution, 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. Counsel theorized that Martinez tried to evade

Agent Cruz because he feared being caught drinking and driving, particularly 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 shot 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 prosecution

9 failed to establish that O'Neill had done anything that would make him liable as an

accomplice to the crimes.

III.

DISCUSSION

A. Martinez's Appeal

1. The evidence is sufficient to support Martinez's conviction for the attempted murder of Agent Cruz

In reviewing a claim of insufficiency of the evidence, this court's role is limited.

" ' "The proper test for determining a claim of insufficiency of evidence in a criminal case

is whether, on the entire record, a rational trier 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 most favorable to the

judgment below to determine whether it discloses substantial evidence—that is, evidence

which is reasonable, credible, and of solid value—such that a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980)

26 Cal.3d 557, 578.) " 'Substantial evidence includes circumstantial 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.' " [Citation.]' [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 accomplishing the intended killing. (People v. Ervine

(2009) 47 Cal.4th 745, 785.) Attempted murder also requires express malice, meaning 10 that the assailant desires the victim's death or knows to a substantial certainty that the

victim's death will occur. (People v. Booker (2011) 51 Cal.4th 141, 178 (Booker).)

"Intent to unlawfully kill and express malice 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 when a person willfully does an act, the natural and probable

consequences of which are dangerous to human 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 intent. Such intent must usually be derived from all the

circumstances of the attempt, including the defendant's actions.' " (Ibid.) "Whether a

defendant possessed the requisite intent to kill 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 not 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 that this is insufficient 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 patrol car, Agent Cruz got out of the patrol car, drew his gun

and yelled repeatedly at Martinez and O'Neill to show their hands and get out of the car.

11 Rather than surrender, according to Agent Cruz, Martinez revved 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 the 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 appeal, 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 officer." He contends that the

prosecution's evidence does not support a finding of an intent on his part to kill Agent

Cruz because, "by driving at Cruz, [Martinez] had a better chance of scaring Cruz or

possibly injuring him, thereby enabling 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 alternative 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 Cruz 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 sufficient to sustain the attempted murder conviction. In Booker, the court held that the jury's conclusion that the defendant was substantially certain death would result was reasonable, based on the defendant's awareness that a three-month-old infant was asleep and alone in the 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 similarly 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. 12 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 justify the jury's findings, the judgment may not

be reversed simply because the circumstances might also reasonably be reconciled with a

contrary finding.' [Citation.] We do not reweigh evidence or reevaluate a witness's

credibility"].)

2. The trial court was not required to instruct sua sponte on the definition of implied malice

Martinez contends that the trial court erred by failing to provide the jury with the

definition of implied malice and failing to specifically instruct the jury that implied

malice cannot support a conviction for attempted murder. He argues that absent such

instructions, "the jury was unable to distinguish between the conduct/mental state which

constitutes implied malice versus express malice or specific intent to kill." According to

Martinez, the "unique facts of this case require[d] the jury's understanding of the subtle

dividing line between 'intent to kill' and the 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 jury on the distinction, it is likely that the jury would have

found that he lacked express malice and thus would not have convicted him of attempted

murder.

The trial court instructed the jury that to find a defendant guilty of attempted

murder on count 2, "that person must not only intentionally commit the prohibited act,

but must do so with a specific intent and/or mental state. The act and the specific intent

and/or mental state required are explained in the instruction for that crime…." The court 13 then instructed the jury pursuant to the standard instruction on attempted murder

(CALCRIM No. 600). The instruction 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 "intended to kill that person."

The instruction also stated that "[a] direct step requires more than merely planning

or preparing to commit murder or obtaining or arranging for something needed to commit

murder. A direct step is one that goes beyond 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 kill. It is a direct movement toward the commission of the crime

after preparations are made. It is an immediate step that puts the plan in motion so that

the plan would have been completed if some circumstance outside the plan had not

interrupted the attempt. [¶] A person who attempts to commit murder is guilty of

attempted murder even if, after taking a direct step toward killing, he or she abandons

further efforts to complete the crime, or his or her attempt fails or is interrupted by

someone or something beyond his 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 murder." (CALCRIM No. 600.)

We conclude that the trial court was under no duty to instruct the jury on the

definition of implied malice. "A trial court 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 implied malice, in the context of this case, was not necessary

14 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, implied malice cannot support a conviction for

attempted murder. Therefore, the implied malice instructions that Martinez contends

were necessary—but that his counsel did not request 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 instructions in this respect should be lean and unequivocal in

explaining to the jury that only a specific intent to kill will do"]. ) We conclude that the

court did not err in not providing the jury with an instruction defining 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 sentence imposed for his conviction on count 5,

evading a pursuing police officer with reckless driving (Veh. Code, § 2800.2), should be

stayed pursuant to section 654. He argues 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 court had no duty to instruct the jury in the manner that Martinez suggests on appeal, his 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 raise unwinnable issues does not constitute ineffectiveness].) 15 Section 654 provides in relevant part: "(a) An act or omission that is punishable in

different ways by different provisions of law shall be punished under the provision that

provides for the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more 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. This statutory prohibition has been extended to

cases in which an indivisible course of conduct 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 indivisible course of conduct. [Citation.]"

(People v. Perry (2007) 154 Cal.App.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 the 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 reviewing

16 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, "at 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 evade 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 objective, for purposes of section 654." The

People respond that the record supports the court's conclusion that Martinez had different

intents and objectives with respect to the two crimes.

In attempting to refute this contention in his reply brief, Martinez proceeds on the

assumption that there was insufficient evidence to support his conviction for attempted

murder, as discussed 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 discussed, the jury's finding that Martinez had the

specific intent to kill Agent Cruz is supported 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 arrest, and then, when he was cornered 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 Martinez's sentence on count 5 under

section 654.

17 4. Martinez's sentence does not constitute cruel and unusual punishment

The trial court sentenced Martinez to a determinate term of 13 years, plus two life

sentences with a minimum period of 55 years before eligibility 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 Constitutions. Martinez did not raise

this issue in the trial court. Although Martinez "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 judicial economy to prevent

the inevitable ineffectiveness-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 prison 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 notions 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 with the penalty for more serious crimes in the same

jurisdiction; and (3) a comparison 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 briefing on appeal that the minimum period before eligibility for parole is 85 years. However, as discussed in the following section, by operation of section 12022.53, subdivision (e)(2), the enhancement of a minimum period of 30 years before eligibility for parole under section 186.22 is stayed. 18 'considerable burden' to show the sentence is disproportionate to his level of culpability.

[Citation.] Therefore, '[f]indings of disproportionality have occurred with exquisite rarity

in the case law.' " (People v. Em (2009) 171 Cal.App.4th 964, 972.)

The Eighth Amendment, which applies to the states through the Fourteenth

Amendment to the United States Constitution, prohibits cruel and unusual punishments.

It "contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' "

(Ewing v. California (2003) 538 U.S. 11, 20.) The Eighth Amendment " 'does not require

strict proportionality between crime and sentence. Rather, it forbids only extreme

sentences that are "grossly disproportionate" to the crime.' " (Id. at p. 23.) As with

claims under our state Constitution, in determining whether a sentence violates the

federal constitutional guarantee against cruel 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 [under 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 the instant offenses at a relatively 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 the

19 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 the crimes charged in

this case.

While youth is a consideration in the disproportionality analysis (People v.

Sullivan (2007) 151 Cal.App.4th 524, 570), it does not serve as a basis to conclude that

Martinez's sentence is unconstitutional. 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 juvenile offenders to life without the possibility of parole

solely for a nonhomicide offense 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 that his "prior juvenile offenses,

involving five separate incidents, are primarily theft-related offenses and [did] not

6 Graham prohibits the imposition of a life sentence without 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 crimes 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 sentence with a parole eligibility date that falls outside a juvenile defendant's natural life expectancy is impermissible under Graham. (Caballero, 55 Cal.4th at p. 265.) 20 involve actual injury to any persons." 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. His prior crimes as a juvenile

include multiple burglaries, robbery, possession of a knife, resisting an officer and

vandalism. In any event, the lack of a significant 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 fortuitous fact does not diminish the extremely

serious nature of the crimes that Martinez committed.

This is not one of the extreme and exceedingly rare cases where the sentence is

grossly disproportionate to the offense. (Harmelin v. Michigan (1991) 501 U.S. 957,

1001, 1005 [upholding life sentence without parole for possession 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 recidivist thief].) Martinez's claim of cruel and

unusual punishment thus fails.

21 5. The trial court erred by imposing both the penalty provision of section 186.22 and the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1) on count 1

The jury convicted Martinez of attempted 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, subdivisions (d) and (e)(1). The jury also found that the

offense was committed for the benefit of, at the direction of, or in association with a

criminal street gang under section 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 section 186.22, subdivision (b)(5),7 plus an additional

consecutive term of 25 years to life under section 12022.53, subdivisions (d) and (e)(1).

Martinez contends that the trial court erred by imposing penalties under both sections

186.22 and 12022.53, because of the limitation set forth in subdivision (e)(2) of the latter.

The People concede that the trial court erred in this regard, but contend that the

30-year parole eligibility period should be stayed and not, as Martinez requests, stricken.

We accept the People's concession and agree that the sentence should be stayed.

"Section 12022.53, subdivision (e)(1) increases 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.) Section 12022.53, subdivision (d), the firearm

use provision applicable to the present case, requires the imposition of a 25-year-to-life

sentence consecutive to the sentence imposed for the underlying felony when the accused

7 Section 186.22, subdivision (b)(5), requires a minimum parole eligibility period of 15 calendar years. That term was doubled to 30 years because of Martinez's strike prior. 22 "personally and intentionally discharges a firearm 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), creates an exception to

the personal use requirement of section 12022.53, subdivisions (b) through (d).

(§ 12022.53, subd. (e)(1).) If a finding under section 186.22 is made, section 12022.53

applies if any principal, not just the accused, 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 expanded liability under section 12022.53, subdivision (e), the

Legislature has determined to preclude the 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" personally 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 executing both the penalty under 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 section 186.22 enhancement finding, and section

12022.53, subdivision (e)(1) also applies, section 12022.53, subdivision (e)(2), permits

the trial court to impose and stay the section 186.22 enhancement, unless the personal use

or discharge criterion in section 12022.53, subdivision (e)(2) is met. (See People v.

23 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, rather 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 modified to stay the 30-year minimum parole eligibility term

under section 186.22, subdivision (b).

B. O'Neill's Appeal

1. Sufficiency of the evidence to support 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 the perpetrator and with the intent 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 presence at the scene of a crime nor knowledge

of, but failure to prevent it, is sufficient to establish aider 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 considered together with

other meaningful evidence, such as companionship and conduct before and after the

offense, in assessing aider and abettor liability. (In re Lynette G. (1976) 54 Cal.App.3d

1087.)

24 "Intent is rarely susceptible of direct proof and usually must be inferred from the

facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th

413, 420.) In determining whether 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 the 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 evidence that he assisted or encouraged the

attempted murder of Romero, or that he even knew that Martinez intended to shoot

Romero. We disagree. The evidence showed that O'Neill purchased beer with Martinez

hours before the shooting and accompanied Martinez into rival gang territory, where one

of the men issued a verbal challenge to Romero before Martinez shot him. O'Neill then

fled the scene with Martinez.

While the evidence of O'Neill's conduct 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 Romero. Like the defendant in People v. Campbell (1994) 25

Cal.App.4th 402, O'Neill "did not independently happen by the scene of the crime."

(Ibid.) Rather, Martinez and O'Neill knowingly approached and challenged Romero,

acting in concert. O'Neill stood by as Romero 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.)

25 Additionally, the testimony of the prosecution's gang expert supported the

prosecutor's theory that O'Neill and Martinez went into rival gang territory together, with

the intention of shooting a member or members of a rival gang, on behalf of their own

gang. Since there was no evidence that O'Neill "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 participate 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 bandaging her bleeding eye and 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 fled the scene, petitioner stayed in his home. (Ibid.) Here, the evidence showed 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 distinguishable and, in any event, is not binding authority on this court. There, two shots were fired at the trailer where Juan H. and his family lived. (Juan H., 408 F.3d at p. 1266.) About one-and-a- half 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 Merendon 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 and abetting first degree murder, the Ninth Circuit concluded that, unlike here, the record did "not support a conclusion that Juan H. left the murder scene in common 'flight' with Merendon." (Id. at p. 1277.) Further, the police never apprehended Merendon and, the Ninth Circuit concluded, the state had prosecuted Juan H. more harshly as a result. (Id. at p. 1279, fn. 16.) 26 2. There is insufficient evidence to support 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 directly 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 stopped in the Madrona Street cul-de-sac, as evidence that

O'Neill aided and abetted Martinez in resisting arrest, evading Agent Cruz and attempting

to kill Agent Cruz by running him over. While the fact that O'Neill fled the scene of the

shooting of Romero is evidence of his intent with respect to that crime, we do not agree

that his failure to surrender, once cornered in the cul-de-sac, constitutes evidence that

O'Neill intended to assist Martinez in the ensuing crimes. There was no evidence of any

conduct or words on O'Neill's part that would demonstrate that he assisted or encouraged

Martinez in the commission of these crimes.

Recognizing the lack of any evidence of O'Neill's conduct with respect to the

offenses charged in counts 2 through 5, the People sought and obtained a jury instruction

on the natural and probable consequences 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 court instructed the jury that

"[t]o prove that the defendants are guilty of [counts 2 through 5], the People must prove

that: [¶] 1. The defendants are guilty of Attempted Murder as charged in Count One [the

shooting of Romero]. 2. During the commission of Attempted Murder as charged in 27 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 defendant's position would have known that the commission of

Count[s 2 through 5] were a natural and probable consequence of the Attempted Murder

as charged in Count One."

The instruction went on to define a coparticipant as "the perpetrator or anyone

who aided and abetted the perpetrator . . . " and a natural and probable consequence as

"one that a reasonable person 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 circumstances established by the evidence. If the

crimes of Count[s 2 through 5] were committed for a reason independent of the common

plan to commit the Attempted Murder as charged in Count One, then the commission of

Count[s 2 through 5] were not a natural and probable consequence of Attempted Murder

As discussed, "[a]ider-abettor liability exists 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 liability 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 natural and probable consequences doctrine,

28 an aider and abettor is guilty of not only the offense he intended to facilitate or

encourage, but also of any reasonably foreseeable offense committed 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 facilitated, are sufficient to

impose liability on him for any reasonably foreseeable 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 for 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 committed by the defendant's confederate was

a natural and probable consequence of the target crime the defendant aided and abetted,

the question is not whether the defendant actually foresaw the confederate's commission

of the nontarget offense, but whether, judged objectively, the commission of the

nontarget crime was reasonably 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 consequences doctrine 'is measured by whether a reasonable person

in the defendant's position would have or should have known that the charged offense

was a reasonably foreseeable consequence 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 agreed on, so that the connection between them may be

29 reasonably apparent, and not a fresh and independent 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 reasonably 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 natural and probable consequences is commonly

applied, for example, where a "defendant assist[s] or encourage[s] a confederate to

commit an assault with a deadly weapon or with potentially deadly force, and the

confederate not only assault[s] but also murder[s] the victim" or "where a defendant

assist[s] in the commission of an armed robbery, during which 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 evidence to support a finding

that he aided and abetted the offenses charged in counts 2 through 5 based on a natural

and probable consequence theory. The actions that Martinez took once Agent Cruz

began to pursue the Solara, specifically his decision not to surrender and the ensuing

confrontation and attempt to run down Agent Cruz in the Madrona street cul-de-sac,

cannot be considered to be objectively, reasonably 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 belief that the defendant

intended to assist and/or encourage unspecified 'nefarious' conduct"].) Further,

Martinez's evasion of Agent Cruz, his reckless driving and his attempted murder of Agent

Cruz are not crimes that can reasonably be deemed closely related to the target offense of

30 shooting Romero. Unlike a murder stemming from a planned assault with a deadly

weapon, the collateral crimes here did not have a sufficiently "close connection" to the

target crime to support a conviction for aiding and abetting based on a theory of natural

and probable consequences. (Id. at p. 269 ["To trigger application of the "natural and

probable consequences" doctrine, there must be a close connection between the target

crime aided and abetted and the offense actually committed"].) The events that occurred

after Romero was shot were not reasonably foreseeable for purposes of application of the

natural and probable consequences doctrine. (See People v. Leon, supra, 161

Cal.App.4th at p. 161 [witness intimidation by firing a gun in the air not a natural and

probable consequence of the target offenses of burglary or illegal possession of a

firearm].)

The People maintain that common sense requires 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 probable, 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 "foreseeable and probable."10

10 We note the incongruity between the People's argument, which we accept, that O'Neill's and Martinez's sentences on count 5 (evading an officer with reckless driving) should not be stayed under section 654 because Martinez's "initial intent was to avoid apprehension by the police" 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 argument with regard to 31 Because we conclude that there was not sufficient evidence to support O'Neill's

conviction based on a natural and 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 convictions on counts 2 through 5 are reversed.11

DISPOSITION

The judgment as to Martinez is modified to stay the 30-year minimum parole

eligibility term under section 186.22, subdivision (b), and is otherwise affirmed. The

judgment as to O'Neill on counts 2 through 5 is reversed and in all other respects, is

affirmed. The trial court is directed to amend the abstract of judgment accordingly and to

forward a certified copy of the amended abstract of judgment to the Department of

Corrections and Rehabilitation.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

Martinez's separate intents supports our conclusion that Martinez's "collateral criminal act[s were not] the ordinary and probable effect 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. 32