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People v. Martinez10/31/2002
erpose them in trial court].)
In spite of appellant's failure to raise this issue in the trial court, we exercise our discretion and shall review appellant's claim. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [review of cruel and unusual punishment claim first asserted on appeal].) Cruel and Unusual Punishment
"The judiciary may not interfere with the authority of the Legislature to define crimes and prescribe punishment unless a prescribed penalty is so severe in relation to the crime that it violates the constitutional prohibition against cruel or unusual punishment. [Citations.] Nevertheless, a sentence may violate article I, section 17, of the California Constitution if it is so disproportionate to the crime for which it is imposed that it `shocks the conscience and offends fundamental notions of human dignity.' [Citation.]" (People v. Ingram (1995) 40 Cal.App.4th 1397, 1412-1413, disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 559, 560, fn. 8.)
The particular statute, under which appellant was sentenced, mandates a 20-year consecutive sentence for the intentional and personal discharge of a firearm during the commission of certain specified felonies. (§ 12022.53, subd. (c).) The Legislature has determined that those specified offenses committed with the use of a firearm exponentially increase the danger to society, and thus has mandated increased punishment for those defendants who use firearms in the commission of those offenses. (See Stats. 1997, ch. 503, § 1.) Appellant was convicted of attempted murder, which under section 12022.53, subdivision (a)(1), (18) is one of those specified felonies.
The sentencing provisions of section 12022.53 do not allow for the trial court to exercise its discretion in deciding the punishment to impose. (§ 12022.53, subds. (g), (h).) The Legislature may eliminate the trial court's discretionary sentencing options (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 516), which is precisely what was done in enacting this statute with the language contained in section 12022.53, subdivisions (g), (h).
This does not mean that a trial court must in all cases impose the sentences mandated under this code section. The trial court is still permitted to decline from imposing a sentence if it concludes the punishment is cruel or unusual, under either the Eighth Amendment of the United States Constitution, or under article I, section 17 of the California Constitution. (People v. Ayon (1996) 46 Cal.App.4th 385, 398, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 593, 599-600 & fn. 10; People v. Mora (1995) 39 Cal.App.4th 607, 615 ["punishment is reduced because the Constitution compels reduction, not because a trial court in its discretion believes the punishment too severe"].)
Appellant invokes the California test for cruel or unusual punishment set forth in People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon) and In re Lynch (1972) 8 Cal.3d 410, 426-427 (Lynch). As construed by these two seminal cases, a sentence may violate article I, section 17 of the California Constitution if it is so disproportionate to the crime for which it is imposed that it "shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.) Lynch set forth three techniques to guide the courts in making a determination whether a particular punishment is cruel or unusual. The first technique is to examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. (Id. at p. 425.) In Dillon, supra, 34 Cal.3d 441, the court
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