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People v. Martinez10/31/2002
elaborated on this technique and held that the court should examine not only the offense in the abstract but the facts of the crime as well. In Dillon, the court considered the totality of the circumstances including motive, the manner in which the crime was committed, the extent of the defendant's involvement, and the consequences of the defendant's acts. (Id. at p. 479.) The second technique involves comparing the "challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious." (Lynch, supra, at p. 426, italics omitted.) The third technique involves "a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision." (Id. at p. 427.)
Preliminarily, it is the appellant's burden to demonstrate that the punishment meted out for his criminal conduct constitutes cruel or unusual punishment. That burden is a considerable one, for judicial determinations that a particular punishment is cruel or unusual are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196- 1197 ["Findings of disproportionality have occurred with exquisite rarity in the case law"]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)
Nature of Offense
Appellant acknowledges, as he must, that discharging a firearm during the commission of the crime of attempted murder when viewed in the abstract is dangerous. However, appellant asserts that the facts of appellant's offense, when examined, "demonstrate that his culpability was minimal for the crime which he committed. It is hard to imagine an attempted murder by discharge of a firearm with less individual culpability than appellant's crime." Appellant states that his crime was not committed for revenge, financial gain, or " similar culpable purpose." Instead appellant contends his crime was motivated by spontaneous anger, and frustration exacerbated by drug use. According to appellant there was no evidence of planning or premeditation, or that appellant went to his stepfather's residence on May 24, 2000, intending to shoot, injure or kill Andrew. Appellant also points to the actual damage caused by his conduct was only "minor damage to Andrew's truck."
"Looking to the nature of the offense, we are again guided by the Lynch decision which, in reviewing other cases, considered these additional factors: (1) the degree of danger the offense presents to society; (2) whether the offense is minor in nature; (3) the defendant's gain; (4) the extent of injury to others; and (5) the nonviolent versus violent nature of the offense. [Citation.]" (People v. Barrera (1993) 14 Cal.App.4th 1555, 1567 (Barrera).)
Factors 3 and 4 are clearly absent in appellant's case, as appellant's sentence was not imposed for an offense involving those two factors. However, factors 1, 2 and 5 weigh heavily against appellant.
Appellant's efforts to minimize his culpability ignores a significant feature of the crime of attempted murder; in order to convict of this offense the jury must have necessarily found appellant "harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being." (CALJIC No. 8.66.) Regardless of whether appellant was motivated by greed, revenge, or as asserted by appellant, "spontaneous anger, arising from frustration exacerbated by [voluntary] drug use," the victim would have been just as dead, had appellant's efforts been fully realized. It is precisely this type of offense, where the presence of a firearm dramatically increased the danger posed to society at large, and appellant's victim
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