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People v. Martinez10/31/2002
on to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.] This is not such a case." (Martinez, supra, 76 Cal.App.4th at p. 494.)
Appellant has failed to meet his burden of establishing the punishment imposed for his personal and intentional discharge of a firearm during the commission of the crime of attempted murder constitutes cruel or unusual punishment.
For the foregoing reasons, we conclude that appellant's sentence is neither "grossly disproportionate" to his crimes nor so disproportionate as to shock the conscience and offend fundamental notions of human dignity. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001; Lynch, supra, 8 Cal.3d at p. 424.) We therefore conclude that appellant's sentence does not violate the federal and state constitutional prohibitions against cruel and unusual punishment.
DISPOSITION
The judgment of conviction is affirmed. The trial court is ordered to prepare an amended abstract of judgment, distributing the same to the appropriate parties, indicating that the sentence it imposed and then stayed for appellant's conviction on count 5 (§ 245, subd. (a)(2)) was the midterm of three years, with an additional four years added for the enhancement under section 12022.5, subdivision (a)(1), for a total term of seven years, stayed pursuant to Penal Code section 654.
WE CONCUR:
VARTABEDIAN, Acting P. J.
WISEMAN, J.
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