Price for Immunity. In October 2016, a jury returned a guilty verdict for both counts against the defendants, each with a special allegation that M.G. was 14 or 15 years old. A. Sentencing Proceedings. In November 2016, defendants were sentenced to life in prison without the possibility of parole. Regarding the non-shooting offense, the trial court imposed two “terms” of 25 years to life, with the sentences running consecutively for a total of 50 years to life. Regarding the special allegation, the court imposed a consecutive 25-year-to- life term. For the shooting offense, the court imposed one term of 25 years to life, running 15 consecutive to the terms imposed for the non-shooting offense, for a total of 50 years to life. The trial court explained that its sentence was the result of “the nature and gravity of the crimes and the totality of the circumstances in this case.” It found that the nature of the crime was “exceptionally egregious.” The court further found that defendants were “predators and they preyed on [the victims] in a most heinous way.” The court found that it “would be very unlikely that [defendants] would, through rehabilitative efforts, change the fact that [they] have serious sociopathic tendencies.” Regarding defendant Chavarin, the court stated, “[t]here is no telling how many times he could have hit [the victim] and he would have continued to hit her.” The court noted that, in its view, section 654 did not apply to defendants’ non- shooting offense. As to defendant Chavarin’s other offenses, the court concluded that it was unable to “find that [he] acted with separate intents for each offense. They were all part of the criminal street gang offense and the assaults were all part of the continuing offense.” As to the firearm enhancement, the court stated that “it would not be in the interest of justice to allow this offense to be reduced to a misdemeanor because the crime was so egregious.” Regarding defendants’ respective sentences, the court stated that it was “giving serious consideration to mitigating factors in these cases” but found that it was unable to find “any substantial evidence of mitigation in either case, given the serious and violent nature of these offenses.” 16  Defendant Chavarin filed a timely notice of appeal. Defendant Flores did not file a notice of appeal. B. Defendant Chavarin’s Contentions and Additional Background. 1. Defendant Chavarin contends the imposition of an LWOP sentence for his non- shooting offenses constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. He contends this is so even if it is assumed that his conviction for assault with a firearm under section 245, subdivision (a)(2), was not based on conduct separate from his predicate offenses. Chavarin also contends the trial court erred in imposing consecutive sentences. 2. Chavarin argues that the trial court erred in refusing to instruct the jury that it could find the lesser included offenses of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)), assault with a deadly weapon or instrument other than a firearm (§ 245, subd. (a)(1)), and assault with a semiautomatic firearm (§ 245, subd. (b)). Chavarin contends that the jury was not otherwise instructed regarding Chavarin’s lesser included offenses. 3. Chavarin contends that section 654 applies to his conviction for assault with a firearm because his actions constituted a single transaction with multiple victims. 4. Chavarin further contends the trial court did not properly exercise its discretion under section 654 in imposing his consecutive sentences. 17  5. Chavarin contends that the trial court erred in imposing a 50-year-to-life sentence under section 186.22, subdivision (b)(4)(C), which was inapplicable to him. 6. Chavarin challenges the constitutionality of section 190.2, subdivision (d), under which the trial court found the three gang enhancement allegations true, on vagueness grounds. Chavarin concedes that he did not challenge the constitutionality of section 190.2, subdivision (d), in the trial court. In the reply brief, he also conceded that “this Court need not consider whether the language of section 190.2, subdivision (d), is constitutional as it was not raised in the trial court.” Thus, Chavarin has forfeited this issue. He contends this court should nevertheless consider the issue for the first time on appeal. C. Defendant Flores’s Contentions and Additional Background. 1. Flores contends that his conviction for possession of marijuana for sale should be reversed because, at the time he possessed it, it was legal to possess, cultivate, and sell marijuana in California. He contends the prosecutor’s failure to provide evidence of a state of affairs that existed at the time of the crime violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. 2. Flores contends that his sentence of 48 years to life constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because his sentence for his non-shooting offense was three times greater than the sentence imposed for his shooting offense. 18  3. Flores contends that the trial court erred in refusing to instruct the jury on the lesser included offense of misdemeanor assault (§ 240) with a deadly weapon. Flores contends that the error was prejudicial because, if given, the jury could have concluded that he was only guilty of misdemeanor assault. 4. Flores contends that section 654 applies to his conviction for possession of marijuana for sale because his possession of it was part of an indivisible course of conduct. He contends that there was no evidence that he took any affirmative acts to possess the marijuana, that he was in possession of the marijuana while he was in the driveway, or that he tried to sell it. 5. Flores contends that he was denied his right to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution because the trial court made several erroneous evidentiary rulings during the sentencing hearing. 6. Flores contends that section 654 precludes punishment for both his firearm offenses, the gang offenses, and the assault offense. He further contends that the trial court erred in denying his motion to strike the firearm enhancements under section 12022.53, subdivisions (c) and (d). 19  III DISCUSSION A. Issues Raised by Both Defendants 1. Whether the Trial Court Erred in Refusing To Instruct the Jury on Lesser Offenses. Both defendants contend that the trial court erred in refusing to instruct the jury on lesser included offenses. They contend that the instruction on assault with a firearm under section 245, subdivision (a)(2), was defective because it lacked an instruction that “each defendant personally used a firearm,” as required by section 12022.5, subdivision (a). 2. Instruction on Firearm Enhancement Under Section 12022.53, Subdivision (d) Defendants both contend that the trial court erred in failing to instruct the jury that it must unanimously agree that at least one of them was armed with a firearm for the firearm enhancement to be found true under section 12022.53, subdivision (d). B. Failure to Instruct on Lesser Included Offense Under Section 654 Both defendants contend that their separate sentences for the non-shooting offense and the shooting offense violated section 654. 20  C. Whether Section 190.2, Subdivision (d), Is Constitutionally Sound. Flores contends that section 190.2, subdivision (d), is unconstitutional on its face because it removes the requirement that a jury find the defendant was not subject to section 190.2, subdivision (d), by a unanimous verdict. He contends that this provision violates due process rights and the right to trial by jury under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. He also contends that section 190.2, subdivision (d), is unconstitutional as applied to him because it denies him due process and the right to trial by jury under the Sixth and Fourteenth Amendments. D. Failure to Instruct on Lesser Included Offense Under Section 654 Chavarin contends that the trial court erred in refusing to instruct the jury on lesser included offenses under section 654. Chavarin contends that the trial court erred in failing to instruct the jury on lesser included offenses to the gang