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People v. Martinez10/31/2002
that it was done at 2:00 a.m. the morning of May 24, 2000, when no one was in the truck. Appellant said he was mad at his stepfather and wanted him to get stopped by the police so he borrowed a car and drove from Sanger to Fresno, parking three houses away from his stepfather's residence. Appellant said after he smoked a cigarette he fired two or three shots at his stepfather's truck. He heard something striking metal and the sound of breaking glass.
Appellant then said he picked up the ejected shell casings from his weapon and left the area. Later when he confronted his stepfather in the late afternoon on May 24, 2000, appellant admitted he fired his gun. According to appellant he fired five shots into the air. On cross- examination appellant stated his first shot was actually into the ground and aimed in the direction his stepfather's truck was going as he drove away. The other shots he fired into the air.
DISCUSSION
As his sole contention on appeal, appellant claims that imposition of the 20-year term of imprisonment for personally discharging a firearm during the crime of attempted murder, constitutes cruel or unusual punishment as applied to him, under both the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. He bases his argument on the claim the particular punishment is such because it is so "grossly disproportionate" to his crime
Respondent contends that appellant's failure to raise this issue at the time of sentencing constitutes a waiver of this issue on appeal. Alternatively, respondent contends the mandatory term of 20 years' imprisonment for appellant's personal use of the firearm is neither cruel or unusual punishment. Respondent further contends appellant has failed to support his federal constitutional claim with adequate argument or citation to authority.
Waiver
Respondent is correct that appellant did not raise the issue of cruel or unusual punishment in the trial court. We have reviewed the record, including the transcript of appellant's sentencing, and can find no point where appellant objected to the length of his sentence on the constitutional grounds now asserted here in this court.
The California Supreme Court has repeatedly held that constitutional claims, such as the one asserted now by appellant, may be waived for failure to present them in the trial court. (People v. Williams (1997) 16 Cal.4th 153, 250 [objection raised for the first time on appeal that admission of gang paraphernalia violated defendant's associational rights under the First and Fourteenth Amendments waived when not presented in trial court]; People v. Padilla (1995) 11 Cal.4th 891, 971 [failure to request a particular instruction where there is no sua sponte duty to instruct waived due process contention], overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20 [the defendant's federal constitutional due process, fair trial, reliable guilt determination claims concerning the admissibility of a videotape waived in a capital case when they were not interposed in the trial court]; People v. Garceau (1993) 6 Cal.4th 140, 173 [Sixth Amendment claim to a fair trial and equal protection in connection with jury selection waived when not presented in trial court]; People v. McPeters (1992) 2 Cal.4th 1148, 1174 [Sixth Amendment discriminatory juror selection issue waived when not presented in trial court]; People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10 [Fifth, Eighth, and Fourteenth Amendments confrontation, cruel and unusual punishment, and due process claims respectively waived by failure to int
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