The U.S. Constitution's eight amendment states: 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' A number of state constitutions also contain the same, or similar, provisions.

'A penalty offends the proscription against cruel and unusual punishment when it is 'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' (In re Lynch (1972) 8 Cal.3d 410, 424; In re DeBeque (1989) 212 Cal.App.3d 241, 248.)

Determining Cruel or Unusual Punshiment

'The Lynch court fashioned a three-pronged test to aid in determining whether a particular punishment is unconstitutionally disproportionate to the offense for which it is imposed; the test is not determinative, but is a tool to aid in the court's inquiry. Under the first prong, the court examines the nature of the offense and/or the offender, paying particular attention to the danger each poses to society. Secondly, the court may compare the challenged punishment with punishments prescribed for other, more serious, crimes in the same jurisdiction. Finally, the challenged penalty may be compared with punishments for the same offense in other jurisdictions.' People v. Almodovar (1987) 190 Cal.App.3d 732, 739-740.

The defendant has the burden of establishing that his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254-255.)

The Relevancy of a Defendent's Past Offenses

While defendant's past offenses are a relevant consideration, they do not 'result in a pro tanto repeal of the cruel or unusual punishment clause.' (In re Lynch, supra, 8 Cal.3d at p. 432.) it is well-established recidivist statutes must undergo the same constitutional scrutiny as every other sentencing statute. (See, e.g., Solem v. Helm (1983) 463 U.S. 277, 296 and In re Lynch, supra, 8 Cal.3d 410, 425-429 striking down life terms for recidivists as cruel and unusual punishment.)

In Rummell, the court held it did not constitute cruel and unusual punishment to impose a life sentence with possibility of parole upon a defendant who had obtained $120.75 by false pretenses. The sentence was imposed under a Texas recidivist statute on the basis of Rummell's prior felony convictions for fraudulent use of a credit card to obtain $80 in goods and passing a forged check in the amount of $28.36.

Challenging a Penalty as Cruel or Unusual

The Supreme Court has emphasized 'the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned 'unless their unconstitutionality clearly, positively, and unmistakably appears.'' (People v. Wingo (1975) 14 Cal.3d 169, 174.)