The opinion
McINTYRE, J., Concurring.
I agree with the reasoning and conclusions of the majority as to the sufficiency of the evidence and the legality of the initial police contact with defendant. I also agree that the sentence imposed here does not violate the constitutional prohibition against cruel and unusual punishment. However, as I believe the extensive discussion of federal case law is unnecessary, I concur in the result only.
The trial court here concluded defendant’s lengthy criminal history brought him within the spirit of the three strikes law. As the majority admits, the trial court’s decision may be affirmed using the analysis expressed in Salem v. Helm (1983) 463 U.S. 277 [ 103 S.Ct. 3001 , 77 L.Ed.2d 637 ] and In re Lynch (1972) 8 Cal.3d 410 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ], which *368 includes a consideration of defendant’s recidivist background. I believe this analysis is sufficient to affirm the judgment. Therefore, I believe the majority’s extended exposition of the interplay of the United States Supreme Court decisions in Rummel v. Estelle (1980) 445 U.S. 263 [ 100 S.Ct. 1133 , 63 L.Ed.2d 382 ], Solem v. Helm, supra, 463 U.S. at pages 284-288 [103 S.Ct. at pages 3006-3009] and Harmelin v. Michigan (1991) 501 U.S. 957, 997 [ 111 S.Ct. 2680, 2702-2703 , 115 L.Ed.2d 836 ] and the criticism of the two Ninth Circuit Court of Appeals cases Andrade v. Attorney General of the State of California (9th Cir. 2001) 270 F.3d 743 and Brown v. Mayle (9th Cir. 2002) 283 F.3d 1019 are unnecessary to the disposition here.
As the majority concedes, both Andrade and Brown are distinguishable from our case in that the current crime involved there, petty theft, is ordinarily punished as a misdemeanor but is elevated to felony status only by reason of a prior theft conviction. In my view, this factual distinction makes the holdings of these cases inapplicable here. Further, although some of the language in Andrade and Brown suggests the Ninth Circuit may be inclined to invalidate some three strikes sentences where the current crime is not simply a misdemeanor elevated to felony status by prior conduct, it has not yet done so. Finally, the majority analysis is unnecessary in light of the fact that the Supreme Court has granted certiorari in Andrade .
Appellant’s petition for review by the Supreme Court was denied July 17, 2002. Brown, J., did not participate therein.