Filed 2/2/21 P. v. Zavala CA2/1 Opinion following rehearing NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

OM AR ALEJANDRO ZAVALA,

Defendant and Appellant. B 298290

(Los Angeles County Super. Ct. No. MA022420 )

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.

____________________________2 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

sen tence 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
seri ous 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 d efendant 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 fo rfeited 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 An t elope Valley. In early

1 Undesignated statutory citations are to the Penal Code.3

February 2001, they became acquainted with Sonia Ortiz.
Sonia Ortiz has t wo 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 as sociated with the Paca Flats gang of Pacoima. While baby

- sitting, Sandra called defendant and Tr evino and asked them to come to Graves’s house so the four could ‘hang out’ together after Graves retu r n e d. About 20 to 30 minutes later, two cars pulled up o n 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, pulli ng 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 ‘ W hat?’ 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 indicated4

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 s top 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 a sked 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 cal culation; 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 an d intentionally discharged a firearm causing great bodily injury to Santos within5

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). T he jury further found that defendant caused great bodily injur y 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, t he jury found that defend ant personally caused great bodily injury to Santos. Following a court trial on whether defendant had a prior robbery conviction, the court so fo und beyond a reasonable doubt

. The court further found that the robbery constituted a serious or
violent fe lony 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,
indicate d that defendant was born in 1980. D efendant 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 November 1997, t he juvenile court sentenced defendant to 6 months ’ probation for
vandalism. Just over a year later, i n 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 threate ne d the store clerk with a handgun and st ole
cash and other items. Another confederate stole cash from the6

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. Defendan t was on parole when he attempted to murder Santos

.

4. Original Sentence
On April 26, 2002

, t he original sentencing court imposed a
life sentence f

or the attempted murder conviction with a premeditation finding. The court correctly indicated that the

gang enhancement require d 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 v iolent 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 l aw), three years for the great bodily i njury enhancement,7

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

.

5. CDCR Letter
On October 23, 2018, the s uperior c ourt received a letter
from the California Department of Corrections and
Rehabilitation (CDCR) stating that th ere may be an error in
defendant ’s sentence. The letter indicate d 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 disc retion to strike the firearm enhancements. Defendant argued “there are several significant factors in this case that mitigate in favor of this court exercis ing 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 any8

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 strik ing the strike or striking any of the enhancements would be appropriate under
these circumstances.” Following a hearing at which defendant was represented by counsel, t he 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 determinat e sentence consisted of four years for
the assault with a firearm double d 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 enhanceme nt

. Defendant timely appealed.9 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 theref

ore forfeited them. ( People v. Carmony (2004)
33 Cal.4th 367, 376 ( Carmony ) ; People v. Kelley (1997)
52 Ca l .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 d efendant’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 argue s that the resentencing court abused its
discretio n 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. 37 7

. ) “ ‘[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/or10

violent felony convictions, and the particulars o f 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.’ ” ( Carmon y , at p. 377.) The circumstances must be “extraordinary” for a “ ‘ career criminal ’ ”

to f all 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 allegatio n in limited
circumstances. For example, an abuse of discretion occurs where
the trial court was not ‘ aware of its discretion ’ to dismiss [ c itation], or where the court considered impermissible factors in declining to dismiss [ c itation ]

. Moreover, ‘ the s entencing 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 underlyin g 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 fi rearm, 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 att empted 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 to11

attempted murder and he was on parole at the time he committed the attempted murder

. This case does not involve the extraordin ary 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 l aw. The relevant question is whether defendant falls outside the sc heme 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 prob ation 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.” (Se e § 3051, subds. (a) & (b)(3).) Section 3051, however, does not apply to youthful offenders sentenced under the Three Strikes law. ( § 3051, subd. (h).)12

new report b ecause d efendant 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

, r ule 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 facultie s 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 r esentencing court. ( People v. Franco

, supra , 232 Cal.App.4th at p. 834.)

4 California Rules of court, r ule 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

. . . . ”13

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, 83 7 [“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. Yana

g a (2020) 58 Cal.App.5th 619 .) In Yana g a , the defendant presented “ a ‘l audatory 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 M entoring 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, fina l bracketed insertion added .) Here, in contrast, defendant presented no evidence of his post

- sentencing conduct.14

‘subject to judi cial 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,

s ection 186.22

— commonly referred to as a gang enha nce ment

— sets forth a 15

- year mini mum 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 h is 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 s trike 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 the15

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, 114 1; see also People v. Misa (20 06) 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 enhancement s to both the determina te and
indeterminate sentence s, People v. Min i fie (2018) 22 Cal.App.5th 1256 explaine d : “ [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 a re they added together to form the aggregate term of imprisonment.’ ” ( Id . at p p. 1263

– 1264 .) The court described this approach “ ‘as sentencing in separate boxes,’ ” concluding on the facts before the court, “ ‘the
indeterminate term crime

. . . is plac ed 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 .)16

created to include the three determinate sentence crimes

. . . . [¶] After these calculations, the se cond 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, t he 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 t his 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 o f “[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. 460,17

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. D efendant’s sentence was not cruel and

unusual under the federal C onstitution
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.C t. 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 (K ennedy , J., concurring in part and concurring in ju dgment). 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. 1179,18

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 instructiv e 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, speci fically three golf clubs,
with a total value of $1

, 197 . ( Id . at p. 18.) The jury convict ed Ewing of grand theft of per s onal property in excess of $400. ( Id

. at p. 19.) The court found that Ew i ng suffer e d four previous serious or violent felonies. ( Ibi d .) The high court explained that: “The Eight h Amendment,
which forbids c ruel 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 prohibit s 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 after19

committing at least two violent or serious felonies. ( I d . at p. 28.) “Ewing’s sentence is justified by the St at e’s public

- safety int e rest 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 rat i ona l legislative judgment, entitled to deference, that offend e rs 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 a n d 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 defe ndant’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 disproporti onate to stealing approximately $150 in videotapes. ( Id. at p. 70.) The Ca lifornia 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 t he
Californ i a 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 high20

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 C onstitution, defendant ignores these authorities. Defendant does not cite to
Andrade at all . With respect to Ewing , defendant notes the
obvious 7 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 cru el 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 involvin g

7 Defendant argues: “In 2003, the United States Supreme Court, in Ewing v. California [ c itation]

, 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].”21

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 judici ary, 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 b y 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 impose d under the Three Strikes law. In People v.
Haller (2009) 174 Cal.App.4th 1080 ( Haller ) , the trial court found
that defend a nt’s 78

- year

- to

- life sentence for multiple counts of criminal threats, s talking, and assault with a deadly weapon was
not cruel or unusu a l punishment . Defendant had two prior serious felonies for criminal threats and for battery wi th 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.)22 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
threat en ing vile acts of violence. He d isrupted 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 t he current offenses, the focus must be on the seriousness of these offenses.” ( Id . at p p . 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/assaul t/criminal threat offenses by a third strike offender.” ( Id . at p. 109 3 .) 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 C onstitution. ( 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. ( I bi d .) 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 violent23

crime. ( Id . a t 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. ( I bid .) “Avila’s current offenses alone cannot justify the sentence imposed

. It bears repeating: he s quashed oranges and was sentenced to life.” ( Id. at p. 1147 .) The court fu rther 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 w hether the conviction was cruel or
unusual. ( I

bid

. ) 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 p p

. 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 i nvolvement, and the consequences of his acts ,’

. . . . ” ( In re Nu ñ ez (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. (Se e 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 the24

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 sce ne 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 com mitted 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 culpabilit y 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.)
Alth ough 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 rem orse 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.25 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, d efendant argues that his sentence is significantly greater than a first

- time offender

, who committed a premeditated murder without using a firearm. Defend a nt ’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 Sant os, 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
murde rer 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 becau se defendant is being punished as a recidivist
offender. ( Haller

, supra , 174 Cal. A pp.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. Palacios26

(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, d efendant fails to demonstrate that
his res entence 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 authorit y that his sentence is greater than the punishment prescribed for the same offense in other jurisdictions.

5. Defendant’s r emaining a rguments
Citing Justice Mosk’s concurring opinion in People v.
Deloza (1998) 18 Cal.4th 585, 600 , defendant argues that hi s 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 C onstitution s

. Thi s 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 opini on 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.)27 D efendant ’s additional arguments 8 are unsupported by legal authority and irrelevant to the factors described in Lynch for determining wheth er a sentence is cruel or unusual punishment under the California C onstitution

. 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 imp osing it and because the resentencing court did not strike the prior robbery offense.