People v. Zavala CA2/1

Filed 2/2/21 P. v. Zavala CA2/1
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B298290

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA022420)
v.

OMAR ALEJANDRO ZAVALA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Shannon Knight, Judge. Affirmed.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Charles S. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
 This appeal follows the resentencing of defendant
Omar Alejandro Zavala for attempted murder and assault with a
firearm. The original sentencing court issued an unauthorized
sentence because it miscalculated defendant’s minimum parole
date. The “Three Strikes law” (Pen. Code,1 §§ 667, subds. (b)–(i),
1170.12) required the original sentencing court to double the
15-year minimum parole date because defendant suffered a prior
serious or violent felony conviction. (People v. Jefferson (1999)
21 Cal.4th 86, 90 (Jefferson).) The resentencing court corrected
the error and imposed a longer sentence for the attempted
murder—totaling 60 years to life. The resentencing court
sentenced defendant to a 36-year determinate term for the
assault with a firearm, but stayed that sentence pursuant to
section 654.
On appeal, defendant argues that the resentencing court
abused its discretion in declining to strike his prior conviction for
a serious or violent felony, that his sentence violates principles of
double jeopardy, and that his sentence constitutes cruel and
unusual punishment. Defendant forfeited these arguments
because he failed to raise them in the trial court. On their
merits, his arguments also fail.
We affirm the judgment.

BACKGROUND

1. Facts Underlying Defendant’s Conviction
In the appeal from the judgment of conviction, we described
the pertinent facts: “Defendant and Thomas Trevino were
members of the LCV street gang in the Antelope Valley. In early

1 Undesignated statutory citations are to the Penal Code.

2
February 2001, they became acquainted with Sonia Ortiz.
Sonia Ortiz has two sisters, Sandra Ortiz (Sonia’s twin) and
Clemmie Graves.
“On February 17, 2001, Sonia and Sandra Ortiz went to
Graves’s Lancaster residence. Their purpose was to baby-sit
while Graves went out for dinner with her boyfriend, Salvador
Santos, who was associated with the Paca Flats gang of Pacoima.
While baby-sitting, Sandra called defendant and Trevino and
asked them to come to Graves’s house so the four could ‘hang out’
together after Graves returned. About 20 to 30 minutes later,
two cars pulled up on the opposite side of the street from the
house. The first car was an Acura in which Trevino was the
driver and defendant was the passenger. Other LCV gang
members were in the second car.
“Soon thereafter, Graves and Santos returned to the house,
pulling part way into the driveway. Defendant asked Santos
where he was from, which meant that he wanted to know
Santos’s gang affiliation (Santos had a shaved head and was
wearing baggy clothes in the style of a gang member). Santos felt
disrespected because someone was asking him about his gang
affiliation in front of his (Santos’s) own house. Santos responded
by saying ‘What?’ in a tone that would let defendant know that he
felt disrespected.
“Defendant, who was either standing next to the passenger
door of the Acura or just getting out of the car through that door,
then fired multiple gunshots at Santos. Santos fled upon hearing
the shots, at first not realizing that he had been hit. Santos’s
brother approached and asked Santos if he was all right. At that
point Santos heard more bullets and hid behind a nearby car.
Eyewitness testimony coupled with physical evidence indicated

3
that defendant fired the first shots while getting out from the
passenger side of the Acura and then moved toward the front of
the car (perhaps for cover in the event that Santos had a gun),
where he continued to fire.” (People v. Zavala (July 24, 2003,
B160722) [nonpub. opn.] (Zavala I), fn. omitted.)
“Defendant, Trevino and others were in a car that was
involved in a traffic stop the day after the shooting. A .45-caliber
handgun found in the car matched a bullet and casings that had
been found at the scene. A gang expert testified that asking
someone about gang affiliation could lead to a violent
confrontation if the person asked were from a rival gang. It
would be a sign of weakness to back down if the question were
met with a disrespectful response. Shooting someone who had
disrespected one’s gang is a sign of strength and itself garners
respect from members of the shooter’s gang.” (Zavala I, supra,
B160722).
“Santos sustained a gunshot wound to the stomach, causing
an injury to his hip bone that required surgery.” (Zavala I,
supra, B160722).
“[T]he manner in which defendant attempted to kill Santos
demonstrated calculation; that is, firing multiple shots from
relatively close range in separate groups of gunfire, the second
group coming after Santos’s brother approached him and asked if
he was all right.” (Zavala I, supra, B160722).

2. Conviction
In February 2002, the jury found defendant guilty of
attempted murder. The jury found that the offense was
committed willfully, deliberately, and with premeditation. The
jury found that defendant personally and intentionally
discharged a firearm causing great bodily injury to Santos within

4
the meaning of section 12022.53, subdivision (d). The jury also
found true a firearm enhancement within the meaning of section
12022.53, subdivision (c). The jury further found that defendant
caused great bodily injury to Santos within the meaning of
section 12022.7. The jury found a gang enhancement true.
The jury also convicted defendant of assault with a firearm
and found that he personally used a firearm. With respect to the
assault, the jury found that defendant personally caused great
bodily injury to Santos.
Following a court trial on whether defendant had a prior
robbery conviction, the court so found beyond a reasonable doubt.
The court further found that the robbery constituted a serious or
violent felony within the meaning of the Three Strikes law
and that the robbery was a prior serious felony within the
meaning of section 667, subdivision (a)(1), and a one-year prison
prior within the meaning of section 667.5, subdivision (b).

3. Probation Officer’s Report
The probation officer’s report, dated October 25, 2001,
indicated that defendant was born in 1980. Defendant had been
a gang member since 1997. Defendant’s mother reported
defendant suffered from “ ‘learning disabilities,’ ” but defendant
denied any medical problems.
Defendant had a criminal history. In November1997, the
juvenile court sentenced defendant to 6 months’ probation for
vandalism. Just over a year later, in January 1999, defendant
was convicted of robbery. The probation officer described the
facts underlying that robbery as follows: Defendant and two
fellow gang members entered a store and one of defendant’s
confederates threatened the store clerk with a handgun and stole
cash and other items. Another confederate stole cash from the

5
cash drawer. Meanwhile, defendant took video tapes, cigarettes,
and other items. A getaway driver waited for defendant and his
confederates and drove them away. Officers later recovered “a
large amount of money” and a .357 revolver loaded with one
round.
Defendant violated his parole in February 2001, when he
possessed a firearm. A San Diego court sentenced defendant to
32 months for being a felon in possession of a firearm. Defendant
was on parole when he attempted to murder Santos.

4. Original Sentence
On April 26, 2002, the original sentencing court imposed a
life sentence for the attempted murder conviction with a
premeditation finding. The court correctly indicated that the
gang enhancement required that the court impose a 15-year
minimum parole eligibility. (§ 186.22, subd. (b)(5).) The court
did not double the minimum parole date under the Three Strikes
law. The original sentencing court did not strike the prior serious
or violent felony offense. The court imposed a consecutive
25-year-to-life sentence pursuant to section 12022.53,
subdivision (d) and stayed the other firearm enhancement and
the great bodily injury enhancement. The court added to the
indeterminate sentence five years for the section 667,
subdivision (a)(1) prior serious felony conviction enhancement.
The court struck the one-year prior prison term enhancement in
the interest of justice.
The court imposed a 31-year determinate sentence for the
assault, which it stayed pending successful completion of the
sentence for attempted murder. That sentence consisted of eight
years for the assault (four years doubled pursuant to the Three
Strikes law), three years for the great bodily injury enhancement,

6
10 years for the firearm enhancement, and 10 years for the gang
enhancement.

5. CDCR Letter
On October 23, 2018, the superior court received a letter
from the California Department of Corrections and
Rehabilitation (CDCR) stating that there may be an error in
defendant’s sentence. The letter indicated that defendant’s
minimum 15 year eligibility for parole was not doubled pursuant
to the Three Strikes law.

6. Defendant’s Response to the CDCR Letter
Through appointed counsel, defendant responded to the
CDCR letter. Defendant argued that the life sentence with a 15-
year minimum eligibility was not unauthorized and should be
reimposed. Counsel did not request a new probation report.

7. Defendant’s Motion for Resentencing
In April 2019, defendant filed a motion for resentencing in
propria persona. Defendant requested the trial court exercise its
newly-found discretion to strike the firearm enhancements.
Defendant argued “there are several significant factors in this
case that mitigate in favor of this court exercising its discretion”
to dismiss the firearm enhancements. Defendant, however, did
not specifically identify those factors.

8. The Trial Court Vacates the Sentence and
Resentences Defendant
The resentencing court vacated defendant’s sentence. The
resentencing court stated that after reviewing defendant’s
motion: “Certainly the court does have discretion to strike any

7
firearms enhancements. The court has discretion to strike any
gang allegations, the five-year serious felony prior allegation, and
the great bodily injury allegation. So the court is aware of its
discretion to strike all of those . . . .”
The resentencing court found that the original sentence
was unauthorized. The resentencing court reasoned that this
case involved “a premeditated gang attack, certainly multiple
gang members going to a location to lie in wait and wait for a
known rival gang member to return. Basically, trapping that
individual in a situation where he’s either still in or barely out of
his vehicle at the time, putting him in a much more vulnerable
position, and the court does not believe striking the strike or
striking any of the enhancements would be appropriate under
these circumstances.”
Following a hearing at which defendant was represented by
counsel, the resentencing court sentenced defendant to 60 years
to life for the attempted murder. The resentencing court doubled
the minimum prison term from 15 years to 30 years pursuant to
the Three Strikes law and otherwise ordered the same
indeterminate sentence as the original sentencing court. The
court struck the one-year prior prison term enhancement.
The resentencing court sentenced defendant to 36 years on
the assault with a firearm but stayed the sentence pursuant to
section 654. The determinate sentence consisted of four years for
the assault with a firearm doubled pursuant to the Three Strikes
law, three years for the great bodily injury enhancement, 10
years for the firearm enhancement, 10 years for the gang
enhancement, and five years for the section 667, subdivision (a)
prior serious felony conviction enhancement.
Defendant timely appealed.

8
 DISCUSSION
On appeal, defendant raises three challenges to his 60-
year-to-life sentence. Defendant, who was represented by counsel
in the trial court, did not raise any of these challenges in the trial
court and therefore forfeited them. (People v. Carmony (2004)
33 Cal.4th 367, 376 (Carmony); People v. Kelley (1997)
52 Cal.App.4th 568, 583.) We address defendant’s arguments on
the merits to respond to defendant’s claim of ineffective
assistance of counsel. (People v. Rodrigues (1994) 8 Cal.4th 1060,
1126, abrogated on another ground as explained in People v. Leon
(2020) 8 Cal.5th 831, 848; Cf. People v. Williams (1998)
17 Cal.4th 148, 161, fn. 6.) Finding none of defendant’s
challenges has merit, we reject defendant’s argument that his
counsel in the resentencing court was ineffective by failing to
raise them.

A. The Resentencing Court Did Not Abuse Its
Discretion in Not Striking the Prior Strike
Defendant argues that the resentencing court abused its
discretion in not striking his prior strike offense for robbery.
A trial court has discretion to strike a prior strike offense in
the interest of justice if the “ ‘ “defendant should be treated as
though he actually fell outside the Three Strikes scheme.” ’ ”
(Carmony, supra, 33 Cal.4th at p. 377.) “ ‘[I]n ruling whether to
strike or vacate a prior serious and/or violent felony conviction
allegation or finding under the Three Strikes law, on its own
motion, “in furtherance of justice” pursuant to Penal Code
section 1385(a), or in reviewing such a ruling, the court in
question must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or

9
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.’ ” (Carmony, at p. 377.) The
circumstances must be “extraordinary” for a “ ‘career criminal’ ”
to fall outside of the Three strikes scheme. (Id. at p. 378.)
“[A] trial court will only abuse its discretion in failing to
strike a prior felony conviction allegation in limited
circumstances. For example, an abuse of discretion occurs where
the trial court was not ‘aware of its discretion’ to dismiss
[citation], or where the court considered impermissible factors in
declining to dismiss [citation]. Moreover, ‘the sentencing norms
[established by the Three Strikes law may, as a matter of law,]
produce[ ] an “arbitrary, capricious or patently absurd” result’
under the specific facts of a particular case.” (Carmony, supra,
33 Cal.4th at p. 378.)
The facts underlying defendant’s prior and current
convictions confirm that he fell within the spirit of the Three
Strikes law. Defendant committed the robbery with other gang
members, demonstrating his commitment to the gang. Although
defendant did not personally use a firearm, he was a principal in
the crime in which his fellow gang member used a firearm.
Defendant was an adult when he committed the robbery and his
incarceration for it did not deter him from continuing his gang
and criminal lifestyle. Turning to the attempted murder,
defendant and another gang member laid in wait for the victim.
Defendant shot at his victim numerous times, wounding him and
causing him to suffer great bodily injury. Defendant’s crimes
were of escalating seriousness from vandalism to robbery to

10
attempted murder and he was on parole at the time he
committed the attempted murder.
This case does not involve the extraordinary circumstances
required for a trial court to strike a prior strike offense in the
interest of justice. The very purpose of the Three Strikes law was
to punish recidivist criminals like defendant more harshly.
Section 667, subdivision (b) states: “It is the intent of the
Legislature in enacting subdivisions (b) to (i), inclusive, to ensure
longer prison sentences and greater punishment for those who
commit a felony and have been previously convicted of one or
more serious or violent felony offenses.” Defendant cites recent
more lenient sentencing laws, but the existence of these laws
does not demonstrate an extraordinary circumstance requiring
striking a prior under the Three Strikes law. The relevant
question is whether defendant falls outside the scheme of the
Three Strikes law, not whether the trial court’s decision to strike
an offense would permit defendant to take advantage of more
lenient sentencing laws.2
Defendant argues that the resentencing court should have
obtained a supplemental probation report, but simultaneously
concedes the resentencing court was not required to request a

2 Defendant argues that his new sentence deprives him of
the benefits of section 3051. Under section 3051, when a person
aged 25 or younger is convicted of a crime or multiple crimes and
sentenced to prison, if the longest punishment imposed for the
crimes for which the person is convicted is 25 years to life, that
person becomes “eligible for release on parole at a youth offender
parole hearing during the person’s 25th year of incarceration.”
(See § 3051, subds. (a) & (b)(3).) Section 3051, however, does not
apply to youthful offenders sentenced under the Three Strikes
law. (§ 3051, subd. (h).)

11
new report because defendant was not eligible for probation. As
defendant acknowledges, a presentence probation report was not
mandatory.3 (People v. Franco (2014) 232 Cal.App.4th 831, 834;
Cal. Rules of Court, rule 4.411.)4 Defendant identifies no law
that would have compelled procuring a supplemental probation
report.
Defendant’s remaining arguments also fail. Defendant
emphasizes that he was only 18 at the time he committed the
robbery, claims that his mental faculties were not fully developed
at that time, and points out that he had an expectation of a
specific parole date. He does not demonstrate how these
considerations are relevant to whether he falls within the spirit
of the Three Strikes law. Defendant appears to argue that
imposition of the five-year enhancement would be sufficient
punishment for a recidivist offender, but cites no authority for the
proposition that also imposing more prison time under the Three
Strikes law would be an abuse of discretion. In short, defendant
does not demonstrate that the resentencing court’s decision not to
strike defendant’s prior was “so irrational or arbitrary that no

3 Defendant forfeited this argument because he did not
request an updated probation report in the resentencing court.
(People v. Franco, supra, 232 Cal.App.4th at p. 834.)
4 California Rules of court, rule 4.411(a) provides: “(1) A
presentence investigation and report if the defendant:
(A) Is statutorily eligible for probation or a term of
imprisonment in county jail under section 1170(h); or
(B) Is not eligible for probation but a report is needed to
assist the court with other sentencing issues, including the
determination of the proper amount of restitution fine . . . .”

12
reasonable person could agree with it.”5 (Carmony, supra,
33 Cal.4th at p. 377; see also People v. Leavel (2012)
203 Cal.App.4th 823, 837 [“The burden is on the party
challenging the sentence to clearly show the sentence was
irrational or arbitrary.”].)

B. Double Jeopardy Does Not Bar Defendant’s
Sentence, Which Is Harsher than the Original
Sentence
Defendant’s argument that imposition of a harsher
sentence upon resentencing violates principles of double jeopardy
lacks merit because the original sentence was unauthorized.
“The Supreme Court observed that ‘a sentence is generally
“unauthorized” where it could not lawfully be imposed under any
circumstance in the particular case,’ and ‘commonly occurs where
the court violates mandatory provisions governing the length of
confinement.’ [Citation.] In such a circumstance, the sentence is

5 Division Six of this court recently held that a trial court
may consider a defendant’s post-sentence conduct when
exercising its discretion to strike a firearm enhancement.
(People v. Yanaga (2020) 58 Cal.App.5th 619.) In Yanaga, the
defendant presented “a ‘laudatory chrono’ from a catholic prison
chaplain; a ‘[c]haracter [r]eference [l]etter’ from a protestant
prison chaplain; and commendations for his active participation
in a ‘12-step self-help rehabilitation program,’ an ‘Anti-
Recidivism Coalition Youth Offender Mentoring Program,’ and a
‘live-in placement’ program that trains dogs to serve wounded
veterans. In addition, [the defendant] submitted certificates
presented to him for successfully completing three 10-week
rehabilitation programs.” (Id. at p. 623, final bracketed insertion
added.) Here, in contrast, defendant presented no evidence of his
post-sentencing conduct.

13
‘subject to judicial correction whenever the error [comes] to the
attention of the trial court or a reviewing court,’ even if the
correction increases the sentence originally imposed.” (People v.
Roth (2017) 17 Cal.App.5th 694, 702–703.)

1. Indeterminate Sentence
The trial court resentenced defendant because the original
sentencing court failed to apply the gang enhancement’s
minimum eligibility requirement properly. More specifically,
section 186.22—commonly referred to as a gang enhancement—
sets forth a 15-year minimum eligibility for parole for a
defendant who receives an indeterminate sentence for a crime
committed for the benefit of, at the direction of or in association
with a criminal street gang. (Jefferson, supra, 21 Cal.4th at
p. 90.) The Three Strikes law requires doubling that term when
a defendant has suffered a prior serious or violent felony
conviction. (Id. at pp. 89–90, 101.) Thus, the original sentencing
court was required to double this 15-year eligibility date for
parole.
Defendant argues that his original sentence was not
unauthorized because the original sentencing court could have
exercised its discretion to strike the prior strike offense. The
argument is unpersuasive because the original sentencing court
did not exercise its discretion to strike the prior offense. Because
the original sentencing court did not strike the prior offense, it
had to, but failed to double the minimum eligibility term from
15 years to 30 years. (Jefferson, supra, 21 Cal.4th at p. 90.)

2. Determinate Sentence
The original sentence was unauthorized for the additional
reason that the original sentencing court failed to impose the

14
five-year enhancement pursuant to section 667, subdivision (a)(1)
with respect to the determinate sentence.6 “Prior serious felony
enhancements are added once to each count on which an
indeterminate sentence is imposed and once for the combined
counts on which an aggregate determinate term has been
imposed.” (People v. Tua (2018) 18 Cal.App.5th 1136, 1141; see
also People v. Misa (2006) 140 Cal.App.4th 837, 847 [holding that
a section 667, subdivision (a) enhancement applies to both an
indeterminate and determinate sentence].)
In holding that the trial court did not err in adding prior
prison term enhancements to both the determinate and
indeterminate sentences, People v. Minifie (2018) 22 Cal.App.5th
1256 explained: “[I]mposition of an enhancement for a prior
conviction on both the indeterminate and determinate sentences
is consistent with the separate statutory sentencing schemes for
indeterminate and determinate term crimes. . . . ‘Sentencing
under these two sentencing schemes must be performed
separately and independently of each other. [Citation.] Only
after each is determined are they added together to form the
aggregate term of imprisonment.’ ” (Id. at pp. 1263–1264.) The
court described this approach “ ‘as sentencing in separate
boxes,’ ” concluding on the facts before the court, “ ‘the
indeterminate term crime . . . is placed in one box. The court
imposes the required [ ]life sentence and, in the same box, adds
any enhancements to that sentence. . . . [¶] A second box is

6 Although since January 1, 2019, the trial court has had
discretion whether to impose or strike the section 667,
subdivision (a)(1) enhancement, at the time of the original
sentence, the trial court had no such discretion. (People v. Shaw
(2020) 56 Cal.App.5th 582, 586.)

15
created to include the three determinate sentence crimes. . . . [¶]
After these calculations, the second box would be complete and
contain the total sentence for all the determinate sentence
crimes. The court would add the term of the second box to the
term of the first box to arrive at the total aggregate sentence.’ ”
(Id. at p. 1264.) Applying these principles here, the trial court’s
failure to impose the enhancement on the determinate term
resulted in an unauthorized sentence. (People v. Vizcarra (2015)
236 Cal.App.4th 422, 432.)
This case does not involve multiple determinate sentences.
Therefore, the cases cited by defendant—People v. Gutierrez
(2002) 28 Cal.4th 1083, 1163 and People v. Tassell (1984)
36 Cal.3d 77, 91, disapproved on another ground in People v.
Ewoldt (1994) 7 Cal.4th 380, 401)—do not apply. Both Gutierrez
and Tassell hold that only one section 667, subdivision (a)
enhancement may be applied to an aggregate determinate term.
(Gutierrez, supra, at pp. 1163–1164; Tassell, supra, at p. 91.) The
holding is inapplicable here because this case does not involve an
aggregate determinate term; it involves only a single determinate
term.

C. Defendant Does Not Show that His Sentence
Constitutes Cruel and Unusual Punishment Under
Either the State or Federal Constitutions
The Eighth Amendment to the United States Constitution,
which prohibits the infliction of “cruel and unusual punishment,”
applies to the states. (People v. Caballero (2012) 55 Cal.4th 262,
265, fn. 1.) Article I, section 17 of the California Constitution
prohibits infliction of “[c]ruel or unusual” punishment. The
touchstone of both the federal and state standard is gross
disproportionality. (See Miller v. Alabama (2012) 567 U.S. 460,

16
469; Ewing v. California (2003) 538 U.S. 11, 21 (lead opn. of
O’Connor, J.) (Ewing); Rummel v. Estelle (1980) 445 U.S. 263,
271; In re Butler (2018) 4 Cal.5th 728, 744.) We independently
review whether a punishment is cruel and/or unusual, but we
consider any disputed fact in the light most favorable to the
judgment. (People v. Abundio (2013) 221 Cal.App.4th 1211,
1217.)

1. Defendant’s sentence was not cruel and
unusual under the federal Constitution
The United States Supreme Court discussed
disproportionality in the following summary of its rulings: “[T]he
Court has held unconstitutional a life without parole sentence for
the defendant’s seventh nonviolent felony, the crime of passing a
worthless check. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001,
77 L.Ed.2d 637 (1983). In other cases, however, it has been
difficult for the challenger to establish a lack of proportionality.
A leading case is Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct.
2680, 115 L.Ed.2d 836 (1991), in which the offender was
sentenced under state law to life without parole for possessing a
large quantity of cocaine. A closely divided Court upheld the
sentence. The controlling opinion concluded that the Eighth
Amendment contains a ‘narrow proportionality principle,’ that
‘does not require strict proportionality between crime and
sentence’ but rather ‘forbids only extreme sentences that are
“grossly disproportionate” to the crime.’ Id., at 997, 1000–1001,
111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in
judgment). Again closely divided, the Court rejected a challenge
to a sentence of 25 years to life for the theft of a few golf clubs
under California’s so-called three-strikes recidivist sentencing
scheme. Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179,

17
155 L.Ed.2d 108 (2003); see also Lockyer v. Andrade, 538 U.S. 63,
123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The Court has also
upheld a sentence of life with the possibility of parole for a
defendant’s third nonviolent felony, the crime of obtaining money
by false pretenses, Rummel v. Estelle, 445 U.S. 263, 100 S.Ct.
1133, 63 L.Ed.2d 382 (1980), and a sentence of 40 years for
possession of marijuana with intent to distribute and distribution
of marijuana, [citation].” (Graham v. Florida (2010) 560 U.S. 48,
60.)
The United States Supreme Court’s analysis in Ewing,
supra, 538 U.S. 11 is particularly instructive because as in this
case, the question there was whether application of California’s
Three Strikes law resulted in cruel and unusual punishment. In
Ewing, the defendant was sentenced to a 25-year-to-life sentence
for the theft of personal property, specifically three golf clubs,
with a total value of $1,197. (Id. at p. 18.) The jury convicted
Ewing of grand theft of personal property in excess of $400.
(Id. at p. 19.) The court found that Ewing suffered four previous
serious or violent felonies. (Ibid.)
The high court explained that: “The Eighth Amendment,
which forbids cruel and unusual punishments, contains a ‘narrow
proportionality principle’ that ‘applies to noncapital sentences.’ ”
(Ewing, supra, 538 U.S. at p. 20.) “When the California
Legislature enacted the three strikes law, it made a judgment
that protecting the public safety requires incapacitating
criminals who have already been convicted of at least one serious
or violent crime. Nothing in the Eighth Amendment prohibits
California from making that choice.” (Id. at p. 25.) The court
then considered whether a sentence of 25 years to life was grossly
disproportionate to stealing golf clubs worth nearly $1,200 after

18
committing at least two violent or serious felonies. (Id. at p. 28.)
“Ewing’s sentence is justified by the State’s public-safety interest
in incapacitating and deterring recidivist felons, and amply
supported by his own long, serious criminal record.” (Id. at
pp. 29–30.) Ewing’s sentence “reflects a rational legislative
judgment, entitled to deference, that offenders who have
committed serious or violent felonies and who continue to commit
felonies must be incapacitated.” (Id. at p. 30.) The high court
found no gross disproportionality between the crime and the
sentence. (Ibid.)
Lockyer v. Andrade (2003) 538 U.S. 63 further signaled the
high court’s deference to the Legislative authority to impose
harsh sentences on recidivist offenders. Andrade also involved
California’s Three Strikes law and the defendant’s third strike
involved stealing videotapes worth about $150. Andrade argued
that his sentence of two consecutive terms of 25 years to life in
prison was grossly disproportionate to stealing approximately
$150 in videotapes. (Id. at p. 70.) The California Court of Appeal
upheld the sentence; the Ninth Circuit reversed; and the high
court reversed the Ninth Circuit finding “it was not an
unreasonable application of our clearly established law for the
California Court of Appeal to affirm Andrade’s sentence of two
consecutive terms of 25 years to life in prison.” (Id. at p. 77.)
Turning to this case, we observe that defendant’s crimes—
attempted murder and assault with a firearm—are far more
serious than stealing three golf clubs or $150 in videotapes.
Ewing and Andrade foreclose defendant’s contention of cruel and
unusual punishment because he cannot reasonably argue that his
60-year-to-life sentence is grossly disproportionate to attempted
murder with firearm and gang enhancements when the high

19
court upheld a 50-year-to-life sentence for stealing $150 in
videotapes and a 25-year-to-life sentence for stealing three golf
clubs. Unlike the theft-related crimes in Ewing and Andrade,
defendant’s current crime involved great violence and only
through serendipity, did not kill his victim.
In challenging his sentence under the federal Constitution,
defendant ignores these authorities. Defendant does not cite to
Andrade at all. With respect to Ewing, defendant notes the
obvious7 but not the negative implications of the Supreme Court’s
ruling as applied to the case before us. Under these controlling
authorities, we conclude defendant’s sentence was not cruel and
unusual in violation of the Eighth Amendment.

2. Defendant’s sentence was not cruel or unusual
punishment under the California Constitution
Article I, section 17 of the California Constitution prohibits
a punishment that is “grossly disproportionate to the offense for
which it is imposed.” (People v. Dillon (1983) 34 Cal.3d 441, 478
(Dillon), superseded by statute on another ground as stated in
People v. Chun (2009) 45 Cal.4th 1172, 1186.) “Whether a
particular punishment is disproportionate to the offense is, of
course, a question of degree. The choice of fitting and proper
penalties is not an exact science, but a legislative skill involving

7 Defendant argues: “In 2003, the United States Supreme
Court, in Ewing v. California [citation], in which the court
analyzed a sentence imposed under California’s Three Strikes
law, stated that the proportionality principles distilled in Justice
Kennedy’s concurrence [in Harmelin] guided its application of the
Eighth Amendment in the new context that it was called upon
to consider [in the Ewing case].”

20
an appraisal of the evils to be corrected, the weighing of practical
alternatives, consideration of relevant policy factors, and
responsiveness to the public will; in appropriate cases, some
leeway for experimentation may also be permissible. The
judiciary, accordingly, should not interfere in this process unless
a statute prescribes a penalty ‘out of all proportion to the offense’
[citations], i.e., so severe in relation to the crime as to violate the
prohibition against cruel or unusual punishment.” (In re Lynch
(1972) 8 Cal.3d 420, 423–424 (Lynch).)
Lynch set forth three criteria to determine whether a
sentence is cruel or unusual: (1) considering the nature of the
offense and the offender; (2) comparing the challenged
punishment to those imposed by the same jurisdiction for more
serious crimes; and (3) comparing the challenged punishment to
those imposed by other jurisdictions for the same crime.
(Lynch, supra, 8 Cal.3d at pp. 425–427.) Successful challenges
based on Lynch are “extremely rare.” (People v. Perez (2013)
214 Cal.App.4th 49, 60 (Perez).)
Two cases illustrate application of these principles to
sentences imposed under the Three Strikes law. In People v.
Haller (2009) 174 Cal.App.4th 1080 (Haller), the trial court found
that defendant’s 78-year-to-life sentence for multiple counts of
criminal threats, stalking, and assault with a deadly weapon was
not cruel or unusual punishment. Defendant had two prior
serious felonies for criminal threats and for battery with serious
bodily injury. (Id. at p. 1084.) Defendant’s convictions arose out
of his history of domestic violence in which he physically abused
and stalked his ex-wife and threatened her new husband. (Id.
at pp. 1084–1085.)

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 The appellate court rejected defendant’s argument that his
sentence was cruel or unusual punishment. “[T]he current
offenses caused or threatened harm and violence to the victims.
Defendant terrorized them with relentless phone calls
threatening vile acts of violence. He disrupted their lives to such
an extent that they were afraid to sleep. He displayed
willingness to follow through with his threats by going to the
victims’ home with a knife.” (Haller, supra, 174 Cal.App.4th at
p. 1088.) “In considering the harshness of the penalty, we take
into consideration that defendant is a repeat offender whom the
Legislature may punish more severely than it punishes a first-
time offender. [Citation.] Yet we also have in mind that, because
the penalty is imposed for the current offenses, the focus must be
on the seriousness of these offenses.” (Id. at pp. 1089, 1092.) The
court found defendant’s sentence was not “out of all proportion to
the punishment in California for commission of multiple, serious
stalking/assault/criminal threat offenses by a third strike
offender.” (Id. at p. 1093.) Applying these principles, the court
found that the 78-year-to-life sentence was not cruel and/or
unusual. (Id. at p. 1094.)
In contrast, in People v. Avila, Division Three of this court
found the defendant’s sentence to be cruel or unusual under the
state Constitution. (People v. Avila (2020) 57 Cal.App.5th 1134,
1138–1139.) The jury convicted Avila of attempted second degree
robbery and attempted extortion. (Id. at p. 1139.) Avila
demanded money from two vendors selling oranges, telling one
vendor he had to pay rent. (Ibid.) Avila had three prior strike
convictions within the meaning of the Three Strikes law. (Id. at
p. 1140.) The appellate court explained that neither the
attempted robbery nor the attempted extortion was a violent

22
crime. (Id. at p. 1146.) The defendant did not use violence
against either of his victims and did not verbally or physical
threaten them. (Ibid.) Avila caused about $20 worth of property
damage when the victims did not pay him money. (Ibid.) “Avila’s
current offenses alone cannot justify the sentence imposed. It
bears repeating: he squashed oranges and was sentenced to life.”
(Id. at p. 1147.) The court further explained that Avila’s prior
strike convictions occurred almost 30 years before his current
conviction. (Id. at p. 1148.) The court also noted that Avila was
addicted to drugs and that his addiction was an appropriate
consideration in determining whether the conviction was cruel or
unusual. (Ibid.) The court also considered the trend toward
more lenient sentencing, including sentencing under the Three
Strikes law by requiring the third strike to be serious or violent.
(Id. at pp. 1150–1151.) Taking all of these circumstances into
consideration, the court held that Avila’s conviction constituted
cruel or unusual punishment. (Id. at pp. 1151–1152.)

a. Nature of Offense
A review of the nature of the offense involves “ ‘such factors
as its motive, the way it was committed, the extent of the
defendant’s involvement, and the consequences of his acts,’ . . . .”
(In re Nuñez (2009) 173 Cal.App.4th 709, 731.) For example, if
the facts of the offense do not include violence or a victim, a
lengthy sentence is more likely to be found to be disproportionate.
(See Lynch, supra, 8 Cal.3d at pp. 425–426.)
Looking to defendant’s offense before us, defendant
demonstrates no disproportionality. Defendant’s offense was
exceedingly violent. Defendant lay in wait for a rival gang
member and shot at the victim multiple times at close range,
hitting him twice. Defendant also jeopardized the safety of the

23
victim’s brother as he continued shooting when he saw the
victim’s brother. Defendant premeditated and intended to kill
Santos and brought a firearm to the scene of the shooting. The
fact that Santos’s life was spared was not due to any conduct or
mercy on defendant’s part. The violence involved in this case was
far greater than in Avila, where the defendant squashed oranges.
It was also greater than that committed by the defendant in
Haller who threatened violent conduct but did not engage in it.

b. Nature of Offender
To consider the nature of the offender, we inquire “whether
the punishment is grossly disproportionate to the defendant’s
individual culpability as shown by such factors as his age, prior
criminality, personal characteristics, and state of mind.” (Dillon,
supra, 34 Cal.3d at p. 479.) We must also take into account
defendant’s recidivism. (People v. Gray (1998) 66 Cal.App.4th
973, 992.)
Although defendant was young at the time he committed
the attempted murder, he was involved in a gang and had
committed attempted murder for the benefit of his criminal street
gang. Defendant did not reform his prior ways after his
incarceration for robbery, but instead committed crimes while on
parole including being a felon in possession of a firearm and
attempted murder. Further defendant premeditated before
committing the attempted murder and laid in wait for his victim.
Defendant has demonstrated no remorse for his crime and no
renunciation of his criminal lifestyle. A review of the nature of
the offender does not support the conclusion that defendant’s
sentence constituted cruel or unusual punishment.

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 3. Comparison to more serious crimes in
California
Defendant next turns to the second Lynch factor, which
requires us to compare the punishment imposed in the present
case with the punishment prescribed for more serious offenses in
California. Defendant does not compare his crime to any crime
more serious than the one he committed.
Instead, defendant argues that his sentence is significantly
greater than a first-time offender, who committed a premeditated
murder without using a firearm. Defendant’s argument is flawed
in several respects. First, it can be argued that defendant’s
culpability is similar to that of a defendant who commits first
degree murder because it was only happenstance that prevented
Santos’s death. With the intent to kill Santos, defendant shot at
him multiple times and caused him great bodily injury.
Defendant does not show that his conduct is less blameworthy
than a premeditating murderer who was a better shot.
Additionally, the maximum punishment for the first degree
murderer who lies in wait for his victim, such as defendant
acknowledges he did, includes the death penalty, which is more
severe than defendant’s sentence. (§ 190.2, subd. (a)(15).)
Second, defendant is not similarly situated to the first-time
killer because defendant is being punished as a recidivist
offender. (Haller, supra, 174 Cal.App.4th at p. 1093; People v.
Sullivan (2007) 151 Cal.App.4th 524, 571.)
Third, defendant is not similarly situated to the defendant
who committed a murder without using a firearm because
defendant used a firearm. Section 12022.53 authorizes
“ ‘ “substantially longer prison sentences” ’ ” for “ ‘ “felons who use
firearms in the commission of their crimes.” ’ ” (People v. Palacios

25
(2007) 41 Cal.4th 720, 725.) In addition, to using a firearm,
defendant also committed the offense for the benefit of his
criminal street gang. In sum, defendant fails to demonstrate that
his resentence punished him more severely than a more serious
crime; he simply offers an inapt analogy.

4. Comparison to punishment in other
jurisdictions
The third Lynch factor requires us to compare punishment
imposed in this case with the punishment prescribed for the same
offense in other jurisdictions. Defendant makes no argument and
presents no authority that his sentence is greater than the
punishment prescribed for the same offense in other jurisdictions.

5. Defendant’s remaining arguments
Citing Justice Mosk’s concurring opinion in People v.
Deloza (1998) 18 Cal.4th 585, 600, defendant argues that his
sentence is cruel or unusual because it results in a sentence not
far from his life expectancy. In Deloza, Justice Mosk concluded
that a sentence of 111 years, which is longer than most human
lifetimes, violates the federal and state Constitutions. This case
does not similarly involve a sentence that is impossible to serve.
Justice Mosk’s opinion, moreover, is not binding on this court.
(See People v. Byrd (2001) 89 Cal.App.4th 1373, 1383
[disagreeing with Deloza and explaining that a concurring
opinion has no precedential value].) California courts have
upheld sentences that exceed the defendant’s life expectancy.
(People v. Retanan (2007) 154 Cal.App.4th 1219, 1230 and cases
cited therein.) In short, defendant does not show that this is an “
‘exquisitely rare’ ” case in which a sentence is cruel or unusual.
(Perez, supra, 214 Cal.App.4th at p. 60.)

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 Defendant’s additional arguments8 are unsupported by
legal authority and irrelevant to the factors described in Lynch
for determining whether a sentence is cruel or unusual
punishment under the California Constitution. Defendant has
thus forfeited his arguments by failing to cite to legal authority.
(People v. Hardy (1992) 2 Cal.4th 86, 150.)

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

8 Defendant argues that his sentence is cruel or unusual
because it renders him ineligible for relief under sections 3051
and 3055. He also argues that his sentence is cruel or unusual
because of the delay in imposing it and because the resentencing
court did not strike the prior robbery offense.

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