Filed 2/2/21 P. v. Zavala CA2/1

Opinion following rehearing

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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,

Plaintiff and Respondent,

v.

OMAR ALEJANDRO ZAVALA,

Defendant and Appellant.

 B298290

 (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 

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. 
3

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 
4

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 
5

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 
6

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, 
7

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 
8

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. 
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 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 
10

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 
11

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).) 
12

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 . . . .”
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, 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 ‘AntiRecidivism 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. 
14

‘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
15

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.) 
16

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, 
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. 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, 
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 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 
19

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 
20

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].” 
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 

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.) 
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 

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 firsttime 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 
23

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 
24

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. 
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, 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
26

(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.) 
27

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.