Filed 2/19/14 P. v. True CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063007

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SWF1100984)

TIMOTHY AARON TRUE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Mark

Mandio, Judge. Affirmed.



         Nancy Olsen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Kristine

A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

       A jury found Timothy Aaron True guilty of active participation in a criminal street

gang (Pen. Code, § 186.22, subd. (a))1 (count 2).2 The trial court found that True had

previously suffered three prior serious felony convictions (§ 667, subd. (a)) and three

prior strike convictions (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)(A)). True filed a

motion to dismiss two of the prior strike convictions. At sentencing, the trial court

denied True's motion and sentenced True to an aggregate term of 30 years to life in

prison, consisting of 25 years to life under the "Three Strikes" law (§§ 667,

subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii)) plus an additional consecutive term of

five years for one of the prior serious felony convictions (§ 667, subd. (a)(1)).3

       On appeal, True claims that there is insufficient evidence in the record to support

the jury's verdict finding him guilty of active participation in a criminal street gang. True

also contends that the trial court abused its discretion in denying his motion to dismiss

two of his prior strike convictions, and that his sentence of 30 years to life in prison


1      All subsequent statutory references are to the Penal Code, unless otherwise
specified.

2       The jury was unable to reach a verdict with respect to count 1, assault with force
likely to produce great bodily injury (§ 245, subd (a)(1)), and the court declared a mistrial
as to that count. The court subsequently dismissed count 1 in the interest of justice.

3      The trial court explained that True could not be sentenced on the remainder of the
prior serious felony findings because the convictions on which the findings were based
had not been "brought and tried separately." (§ 667, subd. (a)(1).)

                                              2
constitutes cruel and unusual punishment under both the state and federal Constitutions.4

We affirm the judgment.

                                            II.

                              FACTUAL BACKGROUND

A.     The prosecution's evidence

       On January 18, 2011, True and fellow Coors Family Skins' (CFS) gang member

Justin Hayes, were incarcerated together. Shortly after 8:25 that evening, Riverside

County Sheriff's Deputy Daniel Brown observed True and Hayes kicking and punching

another inmate, Alan Watne. Watne fell backward from the force of the blows. True and

Hayes then kicked, punched, stomped, and kneed Watne while he crouched in a fetal

position.

       Several deputies ordered True and Hayes to stop fighting. After True and Hayes

failed to comply with these commands, the deputies fired 10 to 15 pepper ball rounds

near True and Hayes.

       Shortly thereafter, True and Hayes stopped fighting and lay on the ground. As

deputies ordered True to leave the area, True laughed and yelled "Coors Up" three times.

Hayes then jumped up and continued to attack Watne. Hayes finally stopped fighting

after deputies shot additional pepper ball rounds at him.




4      The Eighth Amendment of the United States Constitution prohibits imposition of
"cruel and unusual punishment." (Italics added.) Section 17 of article I of the California
Constitution prohibits imposition of "[c]ruel or unusual punishment." (Italics added.)

                                             3
       After the incident, the knuckle on True's right index finger was bleeding. Watne's

chest and face were red, he had a cut under his left eye, and his face was very swollen.

       City of Hemet Police Officer Takashi Nishida, who was called by the People as a

gang expert, testified that, in his opinion, at the time of the attack True was an active

member of, and participant in, the CFS gang. According to Nishida, the CFS gang is a

White supremacist hate group whose primary activities include committing various

serious crimes, including murder. Nishida also stated that it appeared that True

committed the assault on Watne in association with Hayes, another CFS gang member.

B.     The defense

       True, Hayes, and Watne each testified that they staged the fight in an attempt to

get Watne transferred to another housing unit. True and Hayes both admitted that they

were members of CFS, but claimed they were not "active" members.

       Gregorio Estevane, another gang expert, testified that street gang members are not

typically active members of their street gangs while they are incarcerated.

C.     Rebuttal evidence

       Deputy Brown testified that he spoke with both Hayes and Watne shortly after the

incident. Both said that the incident was caused by a misunderstanding that had since

been resolved.




                                              4
                                             III.

                                       DISCUSSION

A.     There is sufficient evidence in the record to support the jury's verdict finding True
       guilty of active participation in a criminal street gang

       True claims that there is insufficient evidence to support the jury's verdict finding

him guilty of active gang participation because the record does not contain substantial

evidence that he willfully promoted, furthered, or assisted the felonious conduct of a

criminal street gang, which is one of the elements of the charged offense. Specifically,

True contends that there is insufficient evidence that he committed an assault with force

likely to produce great bodily injury or that he aided in the commission of that crime.

       1.     Standard of review

       In determining the sufficiency of the evidence, "the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt."

(Jackson v. Virginia (1979) 443 U.S. 307, 319 (Jackson).) "[T]he court must review the

whole record in the light most favorable to the judgment below to determine whether it

discloses substantial evidence—that is, evidence which is reasonable, credible, and of

solid value—such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) " 'Substantial

evidence includes circumstantial evidence and any reasonable inferences drawn from that

evidence. [Citation.]' [Citation.] We ' " 'presume in support of the judgment the

existence of every fact the trier could reasonably deduce from the evidence.' " [Citation.]'


                                              5
[Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 943.) "A state court conviction that

is not supported by sufficient evidence violates the due process clause of the Fourteenth

Amendment and is invalid for that reason." (People v. Rowland (1992) 4 Cal.4th 238,

269, citing Jackson, supra, at pp. 313-324.)

       2.     Procedural background

       The trial court instructed the jury that in order to find True guilty of active

participation in a criminal street gang, the jury had to find that the People had established

several elements, including the following:

       "The defendant willfully assisted, [or] promoted felonious criminal conduct
       by members of the gang either by:

       "A.    Directly and actively committing a felony offense; or

       "B.    Aiding and abetting a felony offense. [¶] . . . [¶]

       "Felonious criminal conduct means committing or attempting to commit the
       following crime: Assault with force likely to cause great bodily injury."

       The trial court instructed the jury with respect to the elements of the underlying

offense of assault with force likely to cause great bodily injury as follows:

       "1.   The defendant did an act that by its nature would directly and
       probably result in the application of force to a person;

       "2.    The force used was likely to produce great bodily injury;

       "3.    The defendant did that act willfully;

       "4.    When the defendant acted, he was aware of the facts that would lead
       a reasonable person to realize that his act by its nature would directly and
       probably result in the application of force to someone; and

       "5.     When the defendant acted, he had the present ability to apply force
       likely to produce great bodily injury to a person."

                                               6
       3.     Application

       The following evidence in the record constitutes substantial evidence that True

committed an assault with force likely to produce great bodily injury, the underlying

felony offense supporting his conviction for active gang participation.5

       Deputy Brown testified that he observed True and Hayes kicking and punching

Watne. When asked to describe the incident, Deputy Brown testified:

       "Continual punching, kicking. I saw inmate Watne fall backwards towards
       the corner of the top tier. And I observed Timothy True and Justin Hayes
       kicking and punching and kneeing him in the face while [Watne was]
       crouched down kind of in a fetal position."

       Deputy Brown estimated that True punched Watne 10 times and kneed him eight

times. According to Deputy Brown, True and Haynes continue to punch, kick and knee

Watne even though Watne was not "fighting back" and had assumed a "fetal position."

Deputy Brown also stated that True and Hayes did not stop their attack until deputies

fired pepper balls at them.

       In addition, True admitted at trial that he punched Watne in the face eight to 10

times, kneed him in the stomach and chest about eight times, and kicked him in the side

while he was on the ground.




5       As noted above, True bases his sufficiency claim solely on the contention that
there is insufficient evidence in the record to support a finding that he either personally
committed, or aided and abetted, the underlying felony offense supporting his conviction
for active gang participation, namely, an assault with force likely to produce great bodily
injury.

                                             7
       There is thus overwhelming evidence that True willfully and with knowledge did

an act that by its nature would directly and probably result in the application of force to

Watne. The jury could have reasonably found that, while attacking Watne with his fists,

knees, and feet, True had the present ability to apply force likely to produce great bodily

injury and that the force that True used was likely to produce great bodily injury. (See

People v. Aguilar (1997) 16 Cal.4th 1023, 1028 ["One may commit an assault without

making actual physical contact with the person of the victim; because the statute focuses

on . . . force likely to produce great bodily injury, whether the victim in fact suffers any

harm is immaterial. [Citation.] That the use of hands or fists alone may support a

conviction of assault 'by means of force likely to produce great bodily injury' is well

established"]; People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749 ["Whether a fist

used in striking a person would be likely to cause great bodily injury is to be determined

by the force of the impact, the manner in which it was used and the circumstances under

which the force was applied."].) The record thus contains evidence from which the jury

could have reasonably found proof of each of the elements of assault with force likely to

produce great bodily injury.

       True does not address the evidence discussed above in his brief.6 Instead, True

makes a series of arguments premised on the contention that the trial court's reasons for



6       True notes that the jury could not reach a verdict on the charge of assault with
force likely to produce great bodily injury (count 1) (§ 245, subd. (a)(1)), and yet found
him guilty of count 2, which was based, in part, on the same conduct as alleged in
count 1. However, True "acknowledges the general rule that inconsistent verdicts are
allowed to stand . . . ." (See, e.g., People v. Lewis (2001) 25 Cal.4th 610, 656.) Further,
                                              8
denying a motion for new trial7 were "erroneous." For example, True contends that the

trial court erroneously stated that the jury could have found that he committed a felony

offense "solely upon the fact that Hayes pled guilty to a felony assault." Even assuming

that True were correct that the "reasons[] cited by the trial court as the basis for denying

the new trial motion [we]re erroneous," any such allegedly flawed reasoning is irrelevant

to the question whether the record contains substantial evidence to support the jury's

verdict. As described in the previous paragraphs, the record contains such evidence.

       Accordingly, we conclude that there is sufficient evidence in the record to support

the jury's verdict finding True guilty of active gang participation premised on his

commission of an assault with force likely to produce great bodily injury.

B.     The trial court did not abuse its discretion in refusing to dismiss True's prior strike
       convictions

       True claims that the trial court erred in denying his motion to dismiss two of his

three prior strike convictions.

       1.     Procedural background

       After the jury returned its verdict finding True guilty of active participation in a

criminal street gang, the trial court found that True had suffered three prior strike




True does not contend that the general rule does not apply in this case. Accordingly, we
have no occasion to consider the effect of any inconsistency in the jury's verdicts on
counts 1 and 2 in this appeal.

7     After the jury rendered its verdict, True filed a motion for new trial in which he
argued that the jury's verdict was contrary to the evidence.

                                              9
convictions for attempted murder (§ 664, 187), first degree burglary (§ 459), and active

gang participation (§ 186.22, subd. (a)).

       Prior to sentencing, True filed a motion to dismiss two of his three prior strikes in

the interests of justice (§ 1385) and People v. Superior Court (Romero) (1996) 13 Cal.4th

497. In a supporting brief, True contended that several factors supported dismissing the

two prior strikes, including his age, the relative lack of seriousness of the current offense,

and the fact that his prior strike convictions were "closely connected factually."

       At the sentencing hearing, the court heard argument from defense counsel and the

prosecutor. After hearing argument, the court denied the motion. The court indicated

that True's continual use of violence was the primary factor on which the court was

basing its decision. The court also commented, "This seems to be exactly the type of

case that the Three Strikes law was designed for." The trial court further stated that,

although it had considered the fact that True had incurred his prior strikes in connection

with the same incident, this fact did not warrant striking any of True's strikes.

       2.     Governing law and standard of review

       The law governing a trial court's consideration of whether to dismiss a prior strike

conviction is well established:

       "[T]he court in question must consider whether, in light of the nature and
       circumstances of his present felonies and prior serious and/or 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." (People v.
       Williams (1998) 17 Cal.4th 148, 161 (Williams).)



                                              10
       In People v. Leavel (2012) 203 Cal.App.4th 823, 837, this court summarized the

standard of review to be applied in reviewing a trial court's ruling on a motion to dismiss

a prior strike conviction:

       "The court's ruling on a motion to strike is subject to a deferential abuse of
       discretion standard of review. [Citation.] 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.]
       The burden is on the party challenging the sentence to clearly show the
       sentence was irrational or arbitrary. [Citation.] Further, a sentence will not
       be reversed merely because reasonable people might disagree. ' " 'An
       appellate tribunal is neither authorized nor warranted in substituting its
       judgment for the judgment of the trial judge.' " ' [Citation.]"

       3.     Application

       True's arguments in support of his contention that the trial court abused its

discretion in refusing to grant his motion to dismiss the two strike priors are not

persuasive. First, True argues that the fact that his "adult criminal history is minimal"

supported dismissing the strike. We are not persuaded. To begin with, True has been in

custody for most of his adult life. At the time of sentencing in this case, True was 24

years old. True committed an attempted murder and two other serious offenses when he

was, according to his brief, "either 19 or 20 years old."8 True suffered three strike

convictions for his commission of these offenses on the same date in 2010. While

awaiting sentencing on these convictions, True committed the current offense. Thus,

despite being in custody the bulk of his adult life, True has continued to commit crimes.


8      The exact date of the commission of these crimes is not clear from the record.

                                             11
In addition, True has a lengthy juvenile record, which consists of six prior adjudications,

including adjudications for aggravated assault (§ 245, subd. (a)(1)) and aggravated

battery (§ 243, subd. (d)). Under these circumstances, the trial court did not abuse its

discretion in declining to dismiss True's prior strike convictions in light of his criminal

record.

       True also contends that the circumstances of the current offense support

dismissing the strike. We disagree. True actively promoted a criminal street gang

(§ 186.22, subd. (a)) by participating in a group assault. The Supreme Court has noted

that the activities prescribed by section 186.22, subdivision (a) present a "clear and

present danger to public order and safety." (People v. Rodriguez (2012) 55 Cal.4th 1125,

1133.) In addition, True committed this offense while in a custodial setting. In short, the

trial court did not abuse its discretion in failing to dismiss the prior strikes in light of the

circumstances of the current offense.

       Finally, True argues that because his "three prior strikes arose from the single act

of assaulting someone in a home," the trial court abused its discretion in denying his

motion to dismiss two of his prior strikes, under the rationale of People v. Burgos (2004)

117 Cal.App.4th 1209, 1211 (Burgos).9 In Burgos, the Court of Appeal




9      A related issue is pending in the Supreme Court. (See People v. Vargas, review
granted Sept. 12, 2012, S203744 [argument limited to issue did "the trial court abuse its
discretion under People v. Superior Court (Romero)[, supra, 13 Cal.4th 497], by failing
to dismiss one of defendant's two strikes, given that they arose from the same act" on
Oct. 15, 2013].)

                                               12
noted that the defendant's two prior strike convictions for attempted carjacking and

attempted robbery "arose from a single criminal act, where appellant and two companions

approached a man at a gas station and appellant demanded the victim's car while one of

the companions told the victim that he had a gun." (Id. at p. 1212.) The Burgos court

held that "the trial court abused its discretion in refusing to strike one of [appellant's] two

prior strike convictions, because the two prior strike convictions arose from the same

act." (Id. at p. 1211.)

       Even if we were to follow Burgos (but see People v. Scott (2009) 179 Cal.App.4th

920, 930 [disagreeing with Burgos to the extent it may be read to "mandate striking a

strike" in cases in which two strike convictions are premised on the same act]), True

failed to demonstrate that his prior strikes arose from a single act. (See Scott, supra, at

p. 925, fn. 2 ["to the extent defendant wanted to show that his two strikes arose from the

same act, he had the burden to provide evidence of that fact"].) In the trial court, True

contended that the jury instructions from his prior convictions show the charges arose

from the same act, and, on appeal, he similarly contends that all of his convictions arose

from the single act of "assaulting someone in a home." We disagree.

       The jury instructions from the prior case do not demonstrate that True's

convictions were premised on the same act. On the contrary, the instructions on

attempted murder (§§ 664, 187), first degree burglary (§ 459), and active gang

participation (§ 186.22, subd. (a)) refer to multiple different acts. In order to prove True's

commission of an attempted murder in the prior case, the People were required to

demonstrate that True performed a "direct but ineffectual act . . . towards killing another

                                              13
human being." In contrast, in order to prove True's commission of a burglary, the People

were required to prove that True "enter[ed] a building" with the specific intent to commit

assault with a deadly weapon, assault with force likely to cause great bodily injury,

and/or attempted murder. Finally, in order to prove True's violation of section 186.22,

subdivision (a), the People were required to establish various elements, including that

True "actively participate[d] in a criminal street gang." The jury instructions from True's

prior case thus do not establish that True's prior convictions were premised on the single

act of "assaulting someone in a home."

       To the extent that True's brief may be read as arguing that the trial court abused its

discretion in refusing to dismiss the strikes because True's prior strikes were "closely

connected" in their commission, even if they did not arise from a "single act," we reject

this argument, as well. Even assuming that True's prior strikes were "closely connected"

factually, the nature and circumstances of the current offense as well as those related to

his prior convictions demonstrate True's willingness to engage in gang-related violence.

Further, True has pointed to nothing in the particulars of his background, character, or

prospects, that demonstrates that the trial court abused its discretion in refusing to dismiss

his prior strike convictions merely because the prior strikes were "closely connected"

factually.

       Having rejected all of True's arguments, we conclude that the trial court did not

abuse its discretion in denying True's motion to dismiss two of his prior strike

convictions.



                                             14
C.     True's sentence of 30 years to life does not constitute cruel or unusual punishment
       under the state or federal Constitutions

       True claims that his sentence of 30 years to life constitutes cruel and unusual

punishment under the state or federal Constitutions.10

       1.     True's sentence does not constitute cruel and unusual punishment under the
              federal Constitution

              a.     Governing law

       The Eighth Amendment to the United States Constitution prohibits "cruel and

unusual punishments." It applies to the states via the Fourteenth Amendment and

"contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' "

(Ewing v. California (2003) 538 U.S. 11, 20 (Ewing) (plur. opn. of O'Connor, J.), quoting

Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.)11

       In Ewing, the United States Supreme Court considered whether a sentence of 25

years to life under California's Three Strikes law violated the Eighth Amendment. Ewing

was convicted of grand theft for shoplifting three golf clubs valued at $1,200. He had

previously been convicted of four serious felonies, including robbery and three burglaries



10      We exercise our discretion to consider True's claims on their merits, despite the
possible forfeiture of such claims in light of the fact that True did not raise any claim of
cruel or unusual punishment in the trial court. (See Williams, supra, 17 Cal.4th at p. 161,
fn. 6 [appellate court has discretion to consider claims that are not properly preserved for
review].)

11      Chief Justice Rehnquist and Justice Kennedy joined the plurality opinion. Justices
Scalia and Thomas filed opinions concurring in the judgment, in which they concluded
that the Eighth Amendment contains no proportionality principle. (Ewing, supra, 538
U.S. at pp. 31-32 (conc. opns. of Scalia, Thomas, Js.).)

                                             15
stemming from a single case. (Ewing, supra, 538 U.S. at pp. 17-18, 20.) In addition to

the serious felony convictions, Ewing's criminal record included numerous theft related

convictions, and convictions for drug possession, battery, burglary, unlawful possession

of a firearm, and trespassing. (Id. at p. 18.)

       The United States Supreme Court concluded that Ewing's sentence did not violate

the Eighth Amendment. (Ewing, supra, at pp. 30-31; id. at pp. 31-32 (conc. opns. of

Scalia, Thomas, Js.).) The plurality reasoned:

       "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. [Fn. omitted.] Ewing has been
       convicted of numerous misdemeanor and felony offenses, served nine
       separate terms of incarceration, and committed most of his crimes while on
       probation or parole. His prior 'strikes' were serious felonies including
       robbery and three residential burglaries. To be sure, Ewing's sentence is a
       long one. But it 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. The State of
       California 'was entitled to place upon [Ewing] the onus of one who is
       simply unable to bring his conduct within the social norms prescribed by
       the criminal law of the State.' [Citation.] Ewing's is not 'the rare case in
       which a threshold comparison of the crime committed and the sentence
       imposed leads to an inference of gross disproportionality.' [Citation.]"
       (Ewing, supra, 538 U.S. at pp. 29-30.)

       In In re Coley (2012) 55 Cal.4th 524 (Coley), the California Supreme Court

concluded that a 25-year-to-life sentence imposed under the Three Strikes law on a

defendant who was "convicted of failing to update his sex offender registration within

five working days of his birthday" (id. at p. 530) did not violate the Eighth Amendment.

Coley had previously suffered three prior serious and violent felony convictions for

voluntary manslaughter (§ 192), robbery (§ 211), and acting in concert to aid and abet the


                                                 16
commission of rape (§ 264.1), and the trial court found that Coley "deliberately failed to

register as a sex offender even though he knew he had an obligation to do so." (Coley,

supra, at p. 561.) The Coley court applied Ewing and its progeny and concluded, "Taking

into account both the circumstances of petitioner's triggering offense and petitioner's very

serious criminal history, we conclude that the 25-year-to-life sentence imposed upon

petitioner does not constitute cruel and unusual punishment in violation of the Eighth

Amendment." (Coley, supra, at p. 562.)

              b.     Application

       The circumstances of True's triggering offense, his participation in a violent gang-

related group assault on another inmate, are at least as serious as the triggering offense at

issue in Coley. Further, True's criminal history is similarly extensive, and includes a

conviction for attempted murder, for which he is serving a separate life sentence. In

short, in applying Coley and the cases cited therein, there is nothing about True's sentence

that would suggest an Eighth Amendment violation.

       The cases that True cites in his brief in support of his Eighth Amendment claim

are clearly distinguishable. For example, in People v. Carmony (2005) 127 Cal.App.4th

1066, 1078, the Court of Appeal described defendant's triggering offense, failing to

adequately register as a sex offender, as "the most technical and harmless violation of the

registration law we have seen." In contrast, True's current conviction for active gang

participation (§ 186.22, subd. (a)) based on a gang-related assault was far from

"technical" or "harmless."



                                             17
       In Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, the defendant's prior criminal

record was "comprised solely of two 1991 convictions for second-degree robbery" (id. at

p. 768), which the Ninth Circuit stated were "more accurately described as 'confrontation

petty theft and not really robbery, notwithstanding the convictions.' " (Ibid.) In

concluding that that the defendant's 25-years-to-life Three Strikes sentence violated the

Eighth Amendment, the Ramirez court stated, "[I]t is doubtful that California's Three

Strikes law . . . was ever intended to apply to a nonviolent, three-time shoplifter such as

Ramirez." (Id. at p. 769, citation omitted.) In this case, as discussed above, True's

criminal history reflects his willingness to participate in gang-related violence. As the

trial court correctly noted, True is precisely the type of criminal defendant for which the

Three Strikes law was intended to apply.

       Taking into account both the circumstances of True's triggering offense and his

serious criminal history, we conclude that True's sentence does not constitute cruel and

unusual punishment in violation of the Eighth Amendment.12




12     For the reasons stated in the text, a comparison the severity of True's sentence with
the gravity of his current and prior conduct raises no inference of gross
disproportionality. (See Coley, supra, 55 Cal.4th at p. 562 ["in determining the gravity of
petitioner's conduct in evaluating an Eighth Amendment challenge to a sentence imposed
under a recidivist sentencing statute, we must consider not only petitioner's triggering
offense but also the nature and extent of petitioner's criminal history"].) Accordingly, we
need not compare True's sentence to the sentences received by other offenders in the
same jurisdiction or to the sentences imposed for the same crime in other jurisdictions in
order to determine that True's sentence does not violate the Eighth Amendment. (See
Coley, supra, at pp. 543-544, 561-562.)

                                             18
       2.      True's sentence does not constitute cruel or unusual punishment under the
               California Constitution

               a.      Governing law

       The California Constitution states that "cruel or unusual punishment may not be

inflicted." (Cal. Const., art. I., § 17.)

       In People v. Gonzales (2012) 54 Cal.4th 1234, 1300, our Supreme Court

summarized the manner by which a court must evaluate a claim of cruel or unusual

punishment under the state Constitution:

       " 'To determine whether a sentence is cruel or unusual under the California
       Constitution as applied to a particular defendant, a reviewing court must
       examine the circumstances of the offense, including motive, the extent of
       the defendant's involvement in the crime, the manner in which the crime
       was committed, and the consequences of the defendant's acts. The court
       must also consider the personal characteristics of the defendant, including
       his or her age, prior criminality, and mental capabilities. [Citation.] If the
       penalty imposed is "grossly disproportionate to the defendant's individual
       culpability" [citation], so that the punishment " ' "shocks the conscience and
       offends fundamental notions of human dignity" ' " [citation], the court must
       invalidate the sentence as unconstitutional.' [Citation.]"

       In determining proportionality, a court may also compare the challenged

punishment both with the punishment prescribed for more serious crimes in the same

jurisdiction and with the punishment prescribed for the same offense in other

jurisdictions. (See, e.g., In re Lynch (1972) 8 Cal.3d 410, 423-424.)

               b.      Application

       In considering the nature of the offense, we again observe that True participated in

a violent gang-related group assault on another inmate in prison. While True may be

correct that the offense did not involve weapons and the victim was not severely injured,


                                            19
his offense was nevertheless far from a minor one. Further, there is nothing in the record

that would suggest that True played a minor role in the charged offense, or that True's

motive for committing the crime supports the conclusion that his sentence is

unconstitutional. In addition, as discussed above, True's prior criminal record is serious,

and there is nothing about either his age or his mental capabilities that demonstrates that

his punishment is grossly disproportionate.

       We are not persuaded by True's attempt to compare his sentence under the Three

Strikes law to the sentences that would be imposed under California law for serious or

violent crimes in the absence of prior strikes. (See, e.g., People v. Romero (2002) 99

Cal.App.4th 1418, 1433 [" ' "Because the Legislature may constitutionally enact statutes

imposing more severe punishment for habitual criminals, it is illogical to compare

[defendant's] punishment for his 'offense,' which includes his recidivist behavior, to the

punishment of others who have committed more serious crimes, but have not qualified as

repeat felons." [Citation.]' [Citation.]"].) In addition, True's suggestion that the Three

Strikes law results in a "one-size-fits-all sentence," is not factually correct. While a

defendant sentenced as a third striker under the Three Strikes law will be sentenced to an

indeterminate term of at least 25 years to life, such a defendant could receive a longer

sentence in a case in which a tripling of the base term for the defendant's current offense

would result in a sentence greater than 25 years to life. (See § 1170.12, subd. (c)(2)(A).)

       Finally, with respect to True's interjurisdictional comparison, True fails to

establish that California's Three Strikes law is so draconian so as to be unconstitutional.

"[A] comparison of California's punishment for recidivists with punishment for

                                              20
recidivists in other states shows that many of the statutory schemes provide for life

imprisonment for repeat offenders, and several states provide for life imprisonment

without possibility of parole. California's scheme is part of a nationwide pattern of

statutes calling for severe punishments for recidivist offenders." (People v. Cline (1998)

60 Cal.App.4th 1327, 1338.)13

       In any event, the fact " '[t]hat California's punishment scheme is among the most

extreme does not compel the conclusion that it is unconstitutionally cruel or unusual.

This state constitutional consideration does not require California to march in lockstep

with other states in fashioning a penal code. It does not require "conforming our Penal

Code to the 'majority rule' or the least common denominator of penalties nationwide."

[Citation.] Otherwise, California could never take the toughest stance against repeat

offenders or any other type of criminal conduct.' " (People v. Romero, supra, 99

Cal.App.4th at p. 1433.)

       Accordingly, we conclude that True's sentence does not constitute cruel or unusual

punishment under the California Constitution.




13     True has not demonstrated that the Cline court's summary of recidivist laws is no
longer accurate.
                                            21
                                     IV.

                                 DISPOSITION

    The judgment is affirmed.


                                               AARON, J.

WE CONCUR:



    O'ROURKE, ACTING P. J.



                     IRION, J.




                                     22
