Lead Opinion
Opinion
California’s “Three Strikes” law applies to a criminal defendant who is currently charged and convicted of a felony and who has previously been convicted of one or more serious or violent felonies. One aspect of the law that has proven controversial is that the lengthy punishment prescribed by the law may be imposed not only when such a defendant is convicted of another serious or violent felony but also when he or she is convicted of any offense that is categorized under California law as a felony. This is so even when the current, so-called triggering, offense is nonviolent and may be widely perceived as relatively minor. (Pen. Code, §§ 667, subd. (c), 1170.12, subd. (a); see, e.g., People v. Carmony (2004) 33
Shortly after the Three Strikes law was enacted, a number of federal appellate decisions held that the 25-year-to-life minimum sentence mandated by the law for a third strike felony conviction constituted cruel and unusual punishment in violation of the Eighth Amendment of the federal Constitution when imposed upon a defendant whose current felony offense was a comparatively minor, nonviolent offense. (See, e.g., Andrade v. Attorney General of State of California (9th Cir. 2001)
Subsequently, in People v. Carmony (2005)
In the present habeas corpus proceeding, a panel of the Court of Appeal, Second Appellate District, Division Five, considering the constitutionality of a 25-year-to-life sentence imposed upon a defendant who also was convicted of failing to update his sex offender registration within five working days of his birthday, expressly disagreed with the analysis and conclusion of the appellate court in Carmony II and held that the punishment was constitutionally permissible. In light of the conflict in the two Court of Appeal decisions, we granted review.
We agree with the Court of Appeal in the present case that imposition of a 25-year-to-life sentence upon petitioner in this matter does not constitute cruel and unusual punishment in violation of the federal Constitution, but, for the reasons discussed more fully hereafter, we conclude that we need not and should not rest our holding upon a determination that the Court of Appeal opinion in Carmony II was wrongly decided. The conduct of petitioner in this case, as found by the trial court, is clearly distinguishable in a significant respect from the conduct of the defendant in Carmony II. Unlike the defendant in Carmony II, who had very recently registered at his current address and who the Court of Appeal found “did not evade or intend to evade law enforcement officers” (Carmony II, supra,
I. Facts and Proceedings Below
Prior to the commission of his latest offense, petitioner Willie Clifford Coley had a lengthy and very significant criminal history. In 1978, when he was 18 or 19 years old, petitioner was convicted of burglary in Florida and was sentenced to 15 years in state prison. He was released from prison in Florida in 1986, and thereafter moved to California. In 1988, petitioner was convicted in California of three serious and violent felony offenses— voluntary manslaughter (Pen. Code, § 192),
Because there is a dispute regarding the nature of petitioner’s conduct underlying his most recent conviction—a dispute that bears directly upon the cruel and unusual punishment claim before us—we describe in some detail the relevant evidence presented at trial as well as additional facts disclosed by the probation report and other documents that were before the trial court.
As noted, petitioner was released from prison on parole on January 7, 2001. Although required to do so, petitioner failed to contact his parole officer upon his release, and the former Board of Prison Terms promptly summarily suspended his parole on January 10, 2001. Petitioner’s parole officer was unaware of petitioner’s whereabouts, however, and petitioner was not immediately apprehended.
In addition to being required to contact his parole officer upon his release from prison, petitioner was required to register as a sex offender within five days of his release from prison. Evidence at trial indicated that the Department of Justice had no record that, after his release from prison on January 7, 2001, petitioner had registered as a sex offender at any location within the state.
In August 2001, law enforcement officers conducted a general “parole sweep” in the Lancaster/Palmdale area for parolees who were suspected of
The district attorney thereafter charged petitioner with two felony offenses: (1) failure to register as a sex offender upon arrival in a jurisdiction (§ 290, former subd. (a)(1)(A), now §§ 290, subd. (b), 290.013, 290.015) and (2) failure to update his sex offender registration within five working days of his birthday (which for petitioner fell on May 22, 2001) (§ 290, former subd. (a)(1)(D), now § 290.012).
At trial, the prosecution presented a number of witnesses, as well as documentary evidence, establishing that petitioner had been personally and repeatedly advised of the sex offender registration requirements imposed by the sex offender registration statutes, including the obligation to register as a sex offender with the local sheriff’s department within five days of arrival in a city, and, independently, the obligation to update the registration every year within five working days of his birthday.
A clerk/technician employed by the Los Angeles County Sheriff’s Department station in Palmdale testified that she was the only person who registered sex offenders at the Palmdale sheriff’s department and had no record of having ever registered petitioner, that she was positive that she had not
One of the law enforcement officers who arrested petitioner at his Palmdale residence in August 2001 testified that, at the time of his arrest, petitioner, after being advised of his constitutional rights, acknowledged that he had lived at that address in Palmdale since January 2001 and told the officer that he (petitioner) had failed to register or to contact his parole officer because “he wanted to try to get by through life without contact with the sheriff’s department or parole.” Another officer testified that he had found numerous personal papers of petitioner in the drawer of the nightstand in petitioner’s bedroom, including a document from the Department of Motor Vehicles; the papers found in the drawer did not include any document indicating that petitioner had in fact registered as a sex offender at the Palmdale sheriff’s department upon his release from prison.
Petitioner testified in his own defense. Petitioner acknowledged that he knew he was required to register as a sex offender upon his release from prison and testified that he had in fact registered as a sex offender on January 12, 2001, at the Palmdale sheriff’s department, had received a receipt reflecting that registration, and had put the receipt in the drawer in his nightstand where “all my paperwork goes.” In the course of his testimony, petitioner provided a description of the exterior and interior of the building housing the sheriff’s department, identified the clerk/technician employed by the Palmdale sheriff’s department who had testified for the prosecution as the individual who had handled his registration on January 12, 2001, and purported to describe the registration process. Petitioner further testified that although he knew that he had to register when he was released from prison and when he moved, he believed that he only had to register once a year, and thought that because he had registered with the Palmdale sheriff’s department in January 2001 he did not have to register again until his birthday the following year (that is, until May 2002); he admitted that he had not updated his registration within five days of his birthday in May 2001. On cross-examination, petitioner acknowledged that although he believed that the alleged receipt of his asserted January 12, 2001 sex offender registration at the Palmdale sheriff’s department was in his nightstand drawer when he was arrested in August 2001, he had not informed the arresting officers that he had in fact registered as a sex offender in January 2001 or that a receipt reflecting that registration was in his nightstand drawer.
In rebuttal, the prosecution recalled the Palmdale clerk/technician who had testified earlier. The technician testified that petitioner’s description of both
At the conclusion of the trial and after several hours of deliberation, the jury returned a verdict acquitting petitioner of the charge of failing to register upon his arrival in the jurisdiction, but convicting him of failing to update his registration within five working days of his birthday.
Prior to the sentencing hearing, petitioner admitted that he had been convicted of the three prior serious or violent felonies charged in the information (voluntary manslaughter, robbery, and aiding and abetting rape), and requested that the trial court, on its own motion, strike at least two of the prior convictions in the interest of justice. In support of that request, petitioner emphasized the assertedly minor and nonaggravated nature of the triggering offense of which he had been convicted, characterizing his current criminal conduct as a mere “nonact” and further arguing that, as applied to him, the punishment prescribed by the Three Strikes law would constitute cruel and unusual punishment.
In ruling upon the request to strike priors, the trial court, in addition to reviewing petitioner’s lengthy and serious prior criminal record and noting that the offense in this case occurred only a few months after petitioner’s release on parole, stated with regard to the facts of the current offense: “With respect to the defendant’s testimony that he went down to the Palmdale station and registered, and that for some reason the paperwork was lost or not completed, or the registrar failed to input his registration into the computer. I don’t know if the jury accepted that testimony or not, but the court did not
Finding that “[m]y review of the record indicates to me that [petitioner] has consistently refused to register as a sex offender,” the trial court refused to strike any of petitioner’s prior serious or violent felony convictions and sentenced defendant as a third strike defendant, imposing a 25-year-to-life sentence under the Three Strikes law.
In the course of its sentencing ruling, the trial court expressly distinguished the facts of petitioner’s current offense from the facts involved in People v. Cluff (2001)
On appeal, the appellate court affirmed petitioner’s conviction and sentence, specifically rejecting claims that (1) the trial court had abused its discretion in failing to strike two prior serious or violent felony convictions and (2) that the 25-year-to-life sentence imposed upon petitioner constituted cruel and unusual punishment. (People v. Coley (May 13, 2003, B158564) [nonpub. opn.], review den. July 23, 2003, S116799.)
Several years after the affirmance of petitioner’s conviction and sentence became final, the Court of Appeal in Carmony II, supra,
Thereafter, petitioner filed the present habeas corpus proceeding, contending that, as in Carmony II, supra,
After briefing and argument, the Court of Appeal addressed petitioner’s Eighth Amendment claim on the merits, concluding that the Court of Appeal decision in Carmony II, supra,
II. Review of Relevant United States Supreme Court Eighth Amendment Decisions
The Eighth Amendment of the United States Constitution provides in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Although it has always been uniformly accepted that the federal cruel and unusual punishment clause prohibits the infliction of certain modes of punishment (for example, inherently barbaric punishments such as “punishments of torture” (see, e.g., Wilkerson v. Utah (1879)
In past cases, the high court has addressed the claim that a sentence of imprisonment for a term of years is unconstitutionally excessive in a variety of contexts, but in view of the circumstances of the present case the most pertinent of the high court’s past proportionality decisions are those that have considered the validity of lengthy terms of imprisonment imposed under “habitual offender” or recidivist sentencing provisions analogous to California’s Three Strikes law. As we shall see, each of these cases was decided by a closely divided court and illustrates the particularly difficult nature of line drawing in this context.
In Rummel v. Estelle (1980)
In Rummel, four justices dissented in an opinion authored by Justice Powell. (Rummel, supra, 445 U.S. at pp. 285-307.) The dissent emphasized that each of the defendant’s felony convictions was for a nonviolent theft offense and that in total defendant had unlawfully defrauded others of only $230. The dissent concluded that “[t]he sentence imposed upon the petitioner would be viewed as grossly unjust by virtually every layman and lawyer” and that “objective criteria clearly establish that a mandatory life sentence for defrauding persons of about $230 crosses any rationally drawn line separating punishment that lawfully may be imposed from that which is proscribed by the Eighth Amendment.” (
Just three years after the decision in Rummel, supra,
In analyzing whether the defendant’s sentence violated the prohibition on cruel and unusual punishment set forth in the Eighth Amendment, the court in Solem first reviewed the history of the Eighth Amendment and concluded “as a matter of principle that a criminal sentence must be proportionate to the
Four justices dissented in Solem, concluding that the majority opinion in that case was irreconcilable with the reasoning and conclusion in Rummel. Although the dissent acknowledged “that in extraordinary cases—such as a life sentence for overtime parking—it might be permissible for a court to decide whether the sentence is grossly disproportionate to the crime” (Solem, supra,
In 2003, 20 years after the decision in Solem, the Supreme Court next addressed a cruel and unusual punishment challenge to a sentence imposed under a recidivist sentencing statute in Ewing, supra,
In response to his most recent offense, the prosecution charged the defendant in Ewing under the Three Strikes law, alleging that the defendant had previously been convicted of four serious or violent felonies (robbery and three burglaries) and seeking the 25-year-to-life sentence authorized by the Three Strikes law. After being convicted of one count of felony grand theft—an offense treated as a “wobbler” under California law (that is, an offense that may be punished as either a felony or a misdemeanor)—based on his theft of the three golf clubs, the defendant asked the trial court to reduce the grand theft conviction to a misdemeanor or, alternatively, to strike some or all of his prior convictions, so as to avoid a third strike sentence. The trial court declined to reduce the grand theft conviction to a misdemeanor or to strike any of the prior serious or violent felony convictions, and sentenced the defendant to the 25-year-to-life sentence authorized by the Three Strikes law.
On appeal, the defendant in Ewing contended that imposition of a 25-year-to-life sentence for a conviction based on the nonviolent theft of three golf clubs constituted cruel and unusual punishment in violation of the Eighth Amendment. After the California Court of Appeal rejected the contention and affirmed the conviction and sentence and this court denied a petition for review, the United States Supreme Court granted certiorari and ultimately rejected the defendant’s cruel and unusual punishment claim by a five-to-four vote.
In Ewing, the lead opinion, authored by Justice O’Connor (and joined by Rehnquist, C. J. and Kennedy, J.), after briefly reviewing the decisions in Rummel, Solem, and two other decisions that addressed cmel and unusual punishment challenges to lengthy noncapital sentences that had been imposed outside the antirecidivist context (see Hutto v. Davis (1982)
Applying this analysis in Ewing, Justice O’Connor’s opinion turned first to an evaluation of the gravity of the defendant’s offense compared to the severity of the penalty. (Ewing, supra,
Although Justice O’Connor’s opinion in Ewing recognized that the 25-year-to-life sentence imposed upon Ewing “is a long one” {Ewing, supra,
Determining that “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’ ” (Ewing, supra,
In Ewing, two justices—Justices Scalia and Thomas—each wrote a separate concurring opinion, both agreeing that Ewing’s sentence did not violate the Eighth Amendment but basing their concurrence in the judgment on the view that the Eighth Amendment contains no proportionality principle at all. (See Ewing, supra, 538 U.S. at pp. 31-32 (conc. opn. of Scalia, J.); id. at p. 32 (conc. opn. of Thomas, J.).) The three justices who signed Justice O’Connor’s opinion and the two concurring justices comprised the five-justice majority in Ewing.
Four justices dissented in Ewing. Like Justice O’Connor’s opinion, the dissenting opinion by Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, applied the analytical framework set forth in Justice Kennedy’s concurring opinion in Harmelin (Ewing, supra,
III. Review of Relevant Post-Ewing Decisions
A. Carmony II
Two years after the United States Supreme Court’s decision in Ewing, supra,
Keith Carmony, the defendant in Carmony II, had been convicted in 1983 of oral copulation by force or fear with a minor under the age of 14 years and
The Court of Appeal in Carmony II pointed out that the “[defendant had recently married, maintained a residence, participated in Alcoholics Anonymous, sought job training and placement, and was employed. Just prior to the current offense, he worked as a forklift operator for Hartsell Trucking in Redding and was employed by them until November 24, 1999, the day following his- arrest for the present offense.” (Carmony II, supra,
In response to the current charge, Carmony admitted that he had failed to reregister within five working days of his birthday and pled guilty to that offense. He also admitted that he had previously been convicted of three serious or violent felonies, but requested that the trial court strike at least two of those prior convictions to avoid a mandatory 25-year-to-life sentence under the Three Strikes law. The trial court declined to strike any of the prior convictions and sentenced him to a 25-year-to-life sentence under the Three Strikes law.
On appeal, the Court of Appeal had initially concluded that the trial court had abused the discretion afforded by the Three Strikes law in refusing to strike any of his prior convictions in the interest of justice (see People v. Superior Court (Romero) (1996)
On remand, the Court of Appeal addressed the constitutional issue in its decision in Carmony II, supra,
In addressing the federal constitutional question through application of the approach endorsed by the lead opinion in Ewing, supra, 538 U.S 11, the court in Carmony II first discussed the relative gravity of the defendant’s triggering offense. The court observed in this regard: “While a violation of section 290 [(the sex offender registration provision)] is classified as a felony, the instant offense was a passive, nonviolent, regulatory offense that posed no direct or immediate danger to society. Defendant committed this offense by violating the annual registration requirement . . . , having correctly registered the proper information the month before. Obviously, no change had occurred in the intervening period and defendant’s parole agent was aware of this fact. Thus, because defendant did not evade or intend to evade law enforcement officers, his offense was the most technical and harmless violation of the registration law we have seen.” (Carmony II, supra,
After reviewing the legislative history of the specific provision imposing the annual registration requirement, the court in Carmony II explained that “the available legislative history suggests the annual registration requirement was intended to address the problem of offenders who fail to notify authorities of an address change because they are no longer under active parole
The majority in Carmony II then considered the severity of the sentence that had been imposed upon the defendant, noting that the defendant “was sentenced to a term of 25 years to life in prison” and that “[i]n real terms, [the defendant] must serve 25 years in prison before he is eligible for parole.” (Carmony II, supra,
The court in Carmony II recognized that in determining the validity of the sentence under the Eighth Amendment it must take into consideration that the defendant was a repeat offender whom the Legislature may punish more severely than it punishes a first-time offender. The majority in Carmony II reasoned, however, that because “the double jeopardy clause prohibits successive punishment for the same offense,” the “policy of the clause . . . circumscribes the relevance of recidivism,” and “[t]o the extent the ‘punishment greatly exceeds that warranted by the [triggering] offense, it begins to look very much as if the offender is actually being punished again for his prior offenses.’ ” (Carmony II, supra,
B. Gonzalez v. Duncan
Three years after the Carmony II decision, a similar cruel and unusual punishment claim came before the federal Court of Appeals for the Ninth Circuit in Gonzalez v. Duncan, supra,
In analyzing the gravity of the defendant’s offense in accordance with the controlling constitutional principles set forth by the United States Supreme Court in Ewing, supra,
The court in Gonzalez recognized that “California has a valid ‘public-safety interest in incapacitating and deterring recidivist felons’ ” (Gonzalez, supra,
The court in Gonzalez explained, however, that “we are unable to discern any rational relationship between Gonzalez’s failure to update his sex offender registration annually and the probability that he will recidivate as a violent criminal or sex offender. ...[][] Gonzalez’s present offense does not reveal any propensity to recidivate. California certainly may be ‘justified in punishing a recidivist more severely than it punishes a first offender,’ [citation], where ‘ “the latest crime ... is considered to be an aggravated offense because [it is] a repetitive one,” ’ [citation]. However, what California has done here is fundamentally different. It has imposed an extraordinarily harsh sentence on Gonzalez based on a violation of a technical regulatory requirement that resulted in no social harm and to which little or no moral culpability attaches. Absent some connection between Gonzalez’s past violent and sexual offenses, his present regulatory violation, and his propensity to recidivate as a violent or sexual offender, we cannot conclude that California’s interest in deterring and incapacitating recidivist offenders justifies the severity of the indeterminate life sentence imposed.” (Gonzalez, supra,
C. People v. Nichols
One year after the decision in Gonzalez and four years after the decision in Carmony II, in the case of People v. Nichols (2009)
The court in Nichols emphatically rejected the defendant’s contention, pointing out that “[t]he Carmony II court distinguished the seriousness of the registration offense before it with the one before the [court in People v. Meeks, supra,
D. Crosby v. Schwartz
Most recently, in Crosby v. Schwartz (9th Cir. 2012)
IV. Application to Present Case
In the briefs filed in this court, petitioner does not take issue with the distinction that has been drawn in Carmony II, supra,
In taking this position, of course, petitioner asserts that the present case falls within the former, rather than the latter, category; that is, that the circumstances of Ms offense are comparable to the circumstances in Carmony II and Gonzalez rather than to those in Nichols and Crosby. In support of this position, petitioner relies on the fact that the jury convicted him only of the charge of failing to annually update his registration within five working days of his birthday and acquitted him of the charge of failing to register upon his arrival in the jurisdiction.
In their answer brief, the People directly dispute petitioner’s characterization of the factual circumstances underlying the triggering offense, asserting instead that this case “concerns a petitioner who failed to register as a sex offender upon Ms release from state prison, failed to update his registration annually five months later, and failed to report to his parole agent at any time following his release from state prison.” In advancing this position, the People expressly rely upon the trial court’s finding at the sentencing hearing that petitioner had not registered as a sex offender upon his release from prison in January 2001. The People assert that the trial court’s finding demonstrates that, with regard to the cruel and unusual punishment claim, tMs case is clearly distinguishable from Carmony II and Gonzalez and is analogous to Nichols and Crosby.
Petitioner’s reply brief does not respond to the People’s reliance upon the trial court’s finding at the sentencing hearing, and, in continuing to argue that tMs case is comparable to Carmony II and Gonzalez, relies exclusively on the circumstances that the jury convicted petitioner only of the offense of failing to update his registration within five working days of Ms birthday, and acquitted petitioner of the charge of failing to register on arrival in the jurisdiction.
For the reasons discussed below, we conclude that the circumstances surrounding petitioner’s triggering offense distinguish this case from Carmony II and Gonzalez and are more comparable to Nichols and Crosby.
The triggering offense at issue here—failure to annually update one’s sex offender registration within five working days of one’s birthday—can be committed under a wide range of circumstances. Some defendants—as in Carmony II and Gonzalez—who have properly registered their current address and whose overall conduct demonstrates a general good faith effort to comply with the sex offender registration requirements may commit this offense through a mere negligent oversight that does not adversely impact the fundamental purpose of the sex offender registration regime. Other defendants, however, may violate this statutory provision by intentionally failing to update their sex offender registration within five working days of their birthdays as part of a more general course of conduct that demonstrates a deliberate general unwillingness to comply with the sex offender registration requirements. In analyzing a cruel and unusual punishment challenge to a sentence imposed upon a defendant convicted of this offense, a court may not simply look to the nature of the offense in the abstract, but must take into consideration all of the relevant specific circumstances under which the offense actually was committed.
As petitioner points out, in this case not only was petitioner convicted only of, and sentenced upon, the offense of failing to update his sex offender registration within five working days of his birthday, but the jury specifically acquitted him of the separate charge of failing to register as a sex offender upon his arrival in Palmdale. Petitioner contends that his acquittal of this separate charge establishes that he had in fact properly registered as a sex offender at the Palmdale address where he was arrested and thus that his conduct was comparable to that of the defendants in Carmony II and Gonzalez. We disagree.
Petitioner’s argument on this point fails to take into account the numerous federal and California decisions that uniformly hold that a jury verdict acquitting a defendant of a charged offense does not constitute a finding that the defendant is factually innocent of the offense or establish that any or all of the specific elements of the offense are not true. (See, e.g., United States v. Watts (1997)
As the summary of the evidence presented at trial set forth above {ante, at p. 534) indicates, in challenging the prosecution’s case with regard to the charge of failing to register upon arrival in Palmdale, the defense focused upon the recordkeeping and computer skills of the sheriff’s department clerk, implying that there might be doubt as to the accuracy of the sex offender registration records kept by the Palmdale sheriff’s office and reported to the Department of Justice. The jury’s verdict of acquittal may indicate that the jury viewed this line of defense counsel questioning and the clerk’s responses
Although the jury in this case made no specific factual findings with regard to whether petitioner had registered as a sex offender upon his arrival in Palmdale in January 2001 after his release from prison, as noted above {ante, at pp. 535-536), at the sentencing hearing in this matter after petitioner’s conviction, the trial court did indicate its view with regard to that factual question. With respect to petitioner’s testimony at trial that he had registered at the Palmdale sheriff’s department upon his release from prison and defense counsel’s hypothesis that the paperwork had been lost or not completed, the trial court stated: “I don’t know if the jury accepted that testimony or not, but the court did not believe that testimony for a moment. So my review of [the] evidence supports the fact that the only time that the defendant ever made an effort to register was either when he was in prison for a parole violation, or was taken to register by his parole agent. The defendant is well aware of his obligation to register. He had been told about it on a number of occasions. He is the one that chose to risk the sanctions for having failed to register.” (Italics added.) The trial court relied upon its finding that petitioner had intentionally failed to register in declining to strike any of petitioner’s prior convictions and imposing a 25-year-to-life sentence under the Three Strikes law, specifically distinguishing the facts of this case from the facts involved in People v. Cluff, supra,
As noted, the People contend that in evaluating petitioner’s cruel and unusual punishment claim this court may and should properly rely upon the trial court’s finding with regard to the circumstances underlying petitioner’s offense, and that, under the reasoning of Nichols, supra,
To our knowledge, no prior decision has considered the question whether, in analyzing a claim that a sentence constitutes cruel and unusual punishment
As already noted, although the People relied upon the trial court’s findings regarding the circumstances of the offense in their answer brief, petitioner did not discuss the effect of the trial court’s findings in his reply brief. Prior to oral argument, we specifically directed the parties to be prepared at oral argument to discuss the question “whether a trial court’s factual finding at a sentencing hearing regarding the circumstances relating to a petitioner’s triggering offense may affect the determination whether a sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the federal Constitution.” In response, petitioner’s counsel advised the court that at oral argument she would rely upon the case of People v. Coelho (2001)
As we explain, the Court of Appeal’s decision in Coelho, supra,
In the present case, as in Towne, supra,
The high court’s Eighth Amendment precedents provide no support for a rule that, in a case challenging the constitutional validity -of a sentence imposed under a recidivist sentencing statute such as the Three Strikes law, would limit a court’s consideration of the actual circumstances of a defendant’s offense only to facts that have been found by the jury or proved beyond a reasonable doubt. Inasmuch as the governing federal decisions establish that it is constitutionally permissible for a trial court, applying a preponderance of the evidence standard, to consider the court’s own factual findings regarding the real conduct underlying a defendant’s conviction in exercising its statutorily authorized discretion in choosing an appropriate sentence (see Watts, supra,
Under California’s Three Strikes law, the sentence that is actually imposed upon a defendant in a particular case is dependent not only upon the nature and number of the defendant’s prior criminal convictions and whether he or she is convicted in the current prosecution of a felony offense, but also upon the prosecutor’s exercise of prosecutorial discretion in determining how many prior convictions to charge in the case. (§§ 667, subd. (f)(2), 1170.12, subd. (d)(2).) In addition, and most significantly for the issue before us in this case, the sentence that is actually imposed under the Three Strikes law is
In light of this statutory scheme, a court that is evaluating whether the sentence that has been imposed upon a defendant under the Three Strikes law constitutes cruel and unusual punishment in violation of the Eighth Amendment must be able to consider and take into account the trial court’s factual findings regarding the circumstances related to the triggering offense. In the present case, for example, the trial court’s comments distinguishing the facts of the present case from the facts involved in People v. Cluff, supra,
Under section 1385, although a trial court is required to state on the record its reasons for striking a prior conviction (§ 1385, subd. (a)), there is no similar statutory requirement of an on-the-record statement of reasons when a court declines to strike a prior. (See In re Large (2007)
In the present case, in view of the evidence presented at trial, the record is clearly adequate to support the trial court’s finding that petitioner failed to register at the Palmdale sheriff’s department upon his release from prison in January 2001. As we have seen, the clerk in charge of registering all sex offenders at the Palmdale sheriff’s department testified that she was positive that petitioner had not registered in Palmdale, and one of the arresting law enforcement officers testified that, at the time of his arrest, petitioner admitted that he had failed to register upon his release from prison because “he wanted to try to get by through life without contact with the sheriff’s department or parole.” Further, although petitioner denied making the statement attributed to him by the arresting officer and testified that he had registered in Palmdale upon ids release from prison in January 2001 and had received a document attesting to that registration which he kept in the nightstand next to his bed, petitioner admitted that, at the time of his arrest, he did not inform the officers that he had in fact registered in the Palmdale sheriff’s department or indicate that the documentation of the registration could be found in his nightstand. The arresting officers testified that although other important papers belonging to defendant were found in the nightstand, no documentation of his registration as a sex offender was found there. Finally, in addition to the evidence presented at trial, documentation submitted by the prosecution at the sentencing hearing established that, although he was required to do so, petitioner had failed to contact his parole officer upon his release from prison in January 2001. Under these circumstances, the record is unquestionably adequate to support the trial court’s rejection of petitioner’s trial testimony that he had registered as a sex offender upon his arrival in Palmdale in January 2001.
In view of the trial court’s findings at the sentencing hearing, the circumstances of the triggering offense in this case are clearly distinguishable from the circumstances that underlay the decisions in Carmony II and Gonzalez. Because the trial court found that petitioner deliberately failed to register as a sex offender even though he knew he had an obligation to do so, petitioner’s triggering offense demonstrated that, notwithstanding the significant punishment that he had incurred as a result of his prior serious and violent felony convictions, petitioner was still intentionally unwilling to comply with impor
Furthermore, as the United States Supreme Court explained in Ewing, supra,
V. Disposition
The Court of Appeal judgment, denying the petition for habeas corpus, is affirmed.
Kennard, J., Baxter, J., Chin, J., and Corrigan, J., concurred.
Notes
See Lockyer v. Andrade (2002)
Unless otherwise indicated, further statutory references are to the Penal Code.
In its opinion below, the Court of Appeal described the circumstances relating to petitioner’s 1988 offenses: “The facts underlying petitioner’s manslaughter, rape, and robbery convictions bear mentioning as they are particularly callous. The manslaughter case arose out of a dispute between petitioner’s roommate and a woman. Petitioner’s roommate believed the woman had stolen some of the roommate’s cocaine. The roommate struggled with the woman and called out to petitioner to lend assistance. Petitioner held the woman down as his roommate attempted to examine the woman’s rectum and vagina for the missing cocaine. During the struggle, the woman was choked and fell unconscious. The two men tied an electrical cord around her hands, feet, and neck. Petitioner and his roommate went to sleep and, when they awoke, realized the woman was dead. Because she had defecated, they bathed her. The men cut the woman’s fingernails in an attempt to destroy evidence under her fingernails (i.e., human skin) indicating she had scratched petitioner’s roommate. After doing so, they moved the woman to an inoperable freezer where her body was stored. •
“Four months after the killing, petitioner and his roommate committed rape and robbery. They entered a woman’s residence at 3:00 a.m. while she was sleeping. She was pulled from her bed, her hands were bound, and tape was placed across her mouth. Petitioner’s roommate raped the woman while petitioner stood guard.
“The probation officer responsible for drafting the probation report prior to sentencing on these offenses wrote: ‘It is absolutely incomprehensible to understand how [petitioner] and [his roommate] could continue living in an apartment with a body decomposing in a freezer and dripping fluid on the kitchen floor.’ The probation officer indicated petitioner was ‘a man without a conscience’ and that petitioner ‘show[ed] no remorse for his behavior and it is expected that he will re-involve himself in criminal behavior when he is released from State Prison.’ He concluded, petitioner was ‘an extreme danger to the community.’ ”
Petitioner’s prior parole violations were based on positive narcotics testing for cocaine, PCP, and methamphetamine, and on absconding from parole by traveling to Florida without notice to, or permission of, his parole officer.
In 2007, Penal Code section 290 was repealed and reenacted as sections 290 to 290.023. (Stats. 2007, ch. 579, §§ 7-31, pp. 4811-4825.)
Both petitioner’s parole officer and a Lancaster sheriff’s department clerk who first registered petitioner as a sex offender in October 1998 testified that they had expressly advised petitioner that he was required to update his registration within five days of his birthday every year, in addition to being required to register upon a change of address. The Lancaster clerk also testified that a registration form given to petitioner when he registered with her on April 12, 1999, explicitly stated that petitioner’s next annual date for registration would be May 22, 1999, because his date of birth was May 22, 1959, and that she had specifically shown that item to petitioner.
In his opening brief, petitioner asserts that his failure to update his registration at the time of his birthday “arose from his confusion over having to register the same address twice during the same year." The jury was specifically instructed, however, that in order to prove this offense, the prosecution was obligated to prove, among other matters, that “[t]he defendant actually knew of his duty to update his registration on an annual basis, within five (5) working days of his birthday, with the local law enforcement agency in the city in which he resided . . . .” Thus, in convicting petitioner of this offense, the jury necessarily found beyond a reasonable doubt that defendant knew of his obligation to annually update his registration within five days of his birthday but failed to do so. (See People v. Barker (2004)
In his habeas corpus petition, petitioner contended only that his sentence violated the cruel and unusual punishment clause of the Eighth Amendment of the federal Constitution, and did not raise any claim under the California Constitution. As a consequence, the Court of Appeal expressly limited its decision to a ruling on the Eighth Amendment question, and the petition for review sought review only of that federal constitutional issue. Although in subsequent briefing in this court petitioner has argued that his sentence also violates the cruel or unusual punishment clause of the California Constitution, because the habeas corpus petition itself was limited to the federal constitutional issue and the Court of Appeal expressly confined its consideration and decision to that issue, we conclude that it is appropriate to limit our consideration and decision to the federal constitutional claim.
Justice Breyer’s dissenting opinion noted that “for present purposes” it was applying Justice Kennedy’s analytical framework in Harmelin. (Ewing, supra,
In Lockyer v. Andrade (2003)
The four justices who dissented in Ewing also dissented in Andrade, joining in a dissenting opinion authored by Justice Souter. (Andrade, supra, 538 U.S. at pp. 77-83.) Justice Souter reasoned that whether or not one accepts the state’s judgment that 25 years of incapacitation prior to parole eligibility is appropriate when a defendant with two serious or violent felony convictions commits another felony, “that policy cannot reasonably justify the imposition of a consecutive 25-year minimum for a second minor felony committed soon after the first triggering offense.. .. [T]he argument that repeating a trivial crime justifies doubling a 25-year minimum incapacitation sentence based on a threat to the public does not raise a seriously debatable point on which judgments might reasonably differ.” (Id. at pp. 81-82 (dis. opn. of Souter, J.).)
Carmony also admitted that he had suffered a prior prison term, and the trial court sentenced him to an additional one year term for the prior prison term, resulting in an aggregate term of imprisonment of 26 years to life.
In Carmony I (in which the majority opinion was authored by Brown, 1.), Justice Moreno authored a concurring opinion, joined by Justice Chin. (Carmony I, supra, 33 Cal.4th at pp. 380-381.) Although agreeing that the trial court had not abused its discretion under section 1385 in failing to strike at least two prior convictions, the concurring opinion observed that “it is difficult to escape the conclusion that the electorate that enacted the Three Strikes law did not intend to impose a life sentence on someone whose last offense was a technical violation of the sex offender registration statute—failing to register within five days of his birthday although he had registered a month earlier and had not changed his address since then—that posed no danger to the public. . . . [Citation.] Subject to the caveat that the sentence may yet be overturned on constitutional grounds, I reluctantly concur in the majority opinion.” (
In the course of its opinion, the majority in Carmony II distinguished the prior Court of Appeal decision in People v. Meeks (2004)
In Carmony II, one Court of Appeal justice dissented from the determination that the defendant’s sentence violated the Eighth Amendment. (Carmony II, supra, 111 Cal.App.4th at pp. 1089-1092 (cone. & dis. opn. of Nicholson, J.).) The dissenting justice disagreed with the majority’s characterization of the defendant’s current offense as a harmless technical violation of a regulatory law, observing, “Once we catch a person who has failed to register, we know where he is. That is fortunate, but it does not justify the violation of an important public safety statute. We rightly place strict requirements on sex offenders so we can keep tabs on them, ffl • • • [ID • • • While it was fortuitous that defendant was found where he had last registered, the requirement to register at continuing intervals is rational and supported by the policy discussed above.” (Carmony II, supra, 111 Cal.App.4th at p. 1091.) The dissenting justice also disagreed with the majority’s view that the primary focus should be placed upon the defendant’s current offense, explaining that “[h]ere, defendant committed the felony of failing to register after having been convicted of two violent or serious felonies. That is the relevant set of circumstances that must bear the weight of the penalty imposed.” (Ibid.)
The defendant in Gonzalez had previously been convicted of committing (1) a lewd act with a child under 14, (2) attempted rape by force, and (3) second degree robbery. (Gonzalez, supra,
In Gonzalez, supra,
In relying upon the jury’s acquittal in that manner, the court in Gonzalez did not consider the United States Supreme Court decisions, discussed above (ante, at p. 554), that explicitly hold that, unless the jury makes specific findings, “the jury cannot be said to have ‘necessarily rejected’ any facts when it returns a general verdict . . . .” (Watts, supra,
Because the People relied upon the trial court’s findings in their answer brief, petitioner could and should have raised any objection to a reliance upon the trial court’s findings,
The Court of Appeal decision in Coelho, supra,
Contrary to the concurring opinions, we conclude that the prior decisions of the United States Supreme Court and this court that address and explain the scope and limited reach of the Apprendi line of cases clearly establish that petitioner’s Apprendi claim lacks merit. In a case such as this, in which the governing authorities make clear—as Justice Liu’s concurring opinion acknowledges (cone. opn. of Liu, J., post, p. 564)—that Apprendi does not preclude a trial court’s findings with regard to the circumstances of an offense from playing a crucial role in determining the sentence that is actually imposed upon the defendant within the statutory range of punishment authorized by the jury’s verdict, it is simply illogical, and inconsistent with the high court’s reasoning and conclusion in Ewing, supra,
Furthermore, although Justice Liu’s concurring opinion asserts that the court’s opinion “does not actually resolve petitioner’s Apprendi claim” (cone. opn. of Liu, J., post, at p. 567), that assertion is simply incorrect. Justice Liu’s concurring opinion maintains that “[l]ogically, a rejection of petitioner’s claim on the merits must rest on a conclusion (1) that his intentional refusal to register is not a fact essential to the legality of his sentence under the Eighth Amendment or (2) that even if it were such an essential fact, Apprendi would not apply.” (Cone. opn. of Liu, J., post, at p. 564.) But the concurring opinion’s effort to reduce our rejection of petitioner’s argument to those two alternate conclusions incorrectly frames the issue. We do not have to decide whether petitioner’s “intentional refusal to register [is or] is not a fact essential to the legality of his sentence under the Eighth Amendment” (ibid.) in order to resolve petitioner’s Apprendi claim, because (1) petitioner has conceded that there is no Eighth Amendment violation if his refusal to register was intentional (see, ante, pp. 551-552), (2) the trial court found that petitioner’s refusal to register was intentional, and (3) this opinion holds that the trial court’s finding in this regard may properly be considered in an Eighth Amendment challenge and that such consideration does not violate Apprendi. Thus, this opinion fully resolves petitioner’s Apprendi claim.
Concurrence Opinion
I join the opinion of the court except for its treatment of petitioner’s claim that the Sixth Amendment right to a jury trial, as interpreted by Apprendi v. New Jersey (2000)
Petitioner did not object to the trial court’s finding or to the trial court’s reliance on that finding in denying his request to strike his prior convictions. Nor did petitioner raise an Apprendi claim in the Court of Appeal or in any of his briefing in this court—not even after the Attorney General, in her answer brief, cited the trial court’s finding as a reason to deny petitioner relief. Only after this court directed the parties to be prepared to discuss at oral argument the significance of the trial court’s finding to the Eighth Amendment challenge did petitioner raise his Apprendi claim. No lower courts have previously considered the issue. Accordingly, I would reject petitioner’s claim as forfeited. (People v. Heard (2003)
Although today’s opinion considers the merits of petitioner’s Apprendi claim, its discussion does not actually resolve that claim despite the court’s assertion to the contrary (maj. opn., ante, at p. 559, fn. 19). The court says “the Apprendi line of decisions does not apply to the present context. Both the United States Supreme Court and this court have expressly held that a trial court, in exercising its discretion in sentencing a defendant on an offense of which he or she has been convicted, may take into account the court’s own factual findings with regard to the defendant’s conduct related to an offense of which the defendant has been acquitted, so long as the trial court properly finds that the evidence establishes such conduct by a preponderance of the evidence. (See, e.g., [United States v.] Watts [(1997)]
The court is undoubtedly correct that under Watts, Towne, and Booker, a trial court may consider its own findings in exercising its sentencing discretion within the maximum term lawfully authorized by the jury’s verdict. But those cases did not consider, much less answer, whether Apprendi’s requirement of a jury finding applies to a fact essential to the legality of a sentence under the Eighth Amendment. Petitioner’s claim is not that Apprendi constrains the trial court’s sentencing discretion within the lawfully authorized range; of course it does not. His claim is that Apprendi constrains the trial court’s sentencing discretion under the “Three Strikes” law when a 25-year-to-life sentence would exceed the lawful maximum—-that is, it would violate the Eighth Amendment—but for the finding of an essential fact, namely, his intentional failure to register upon his arrival in Palmdale. In Towne, we said that Apprendi applies “ ‘to a fact that is “legally essential to the punishment” [citation], that is, to “any fact that exposes a defendant to a greater potential sentence” than is authorized by the jury’s verdict alone [citation].’ ” (People v. Towne, supra,
Logically, a rejection of petitioner’s claim on the merits must rest on a conclusion (1) that his intentional refusal to register is not a fact essential to the legality of his sentence under the Eighth Amendment or (2) that even if it were such an essential fact, Apprendi would not apply.
As to the first possibility, the court explains that petitioner’s intentional failure to register is a major factor supporting its “conclusion] that the circumstances surrounding petitioner’s triggering offense distinguish this case from [People v. Carmony (2005)
There would be no need to conclude that petitioner’s intentional failure to register is not a fact essential to the legality of his sentence under the Eighth Amendment if the court were to conclude instead that even if that fact were essential, Apprendi still does not apply. But today’s opinion does not say that either, and the issue is not an easy one.
The main argument for Apprendi’s inapplicability in this context seems to be that Apprendi applies to situations where the facts authorizing a particular sentence are legislatively specified. (See Apprendi, supra,
But there are serious counterarguments. In Ring v. Arizona (2002)
Booker also suggests that the applicability of Apprendi’s principle is not limited to legislatively prescribed facts that are essential to punishment. There, the high court considered whether the Apprendi principle applied to the federal sentencing guidelines. The Attorney General argued that Apprendi did not apply to the guidelines because, among other reasons, they were promulgated by the United States Sentencing Commission, not by Congress. (United States v. Booker, supra,
The high court in Booker expressly and approvingly noted that its conclusion went beyond the four comers of Apprendi'. “The Government correctly notes that in Apprendi we referred to ‘ “any fact that increases the penalty for a crime beyond the prescribed statutory maximum ....”’ Brief for United States 15 (quoting Apprendi,
The entirety of the court’s discussion of petitioner’s Apprendi claim is premised on the notion that a 25-year-to-life sentence is a lawfully authorized maximum sentence for petitioner’s third-strike felony. The court’s embrace of that premise is revealed in its statement that “[j]ust as such a trial court finding [concerning the circumstances of the offense] would be relevant in determining the actual gravity of a defendant’s conduct when the finding is favorable to the defendant, logic and fairness dictate that such a finding is similarly relevant when the finding is unfavorable to the defendant.” (Maj. opn., ante, at p. 559, fii. 19.) That statement is only true when a trial court is exercising its discretion to choose a sentence up to and including the lawfully authorized maximum. However, petitioner’s Apprendi claim fundamentally rests on the proposition that a 25-year-to-life sentence, though authorized by the Three Strikes law, would be unauthorized by the Eighth Amendment but for the fact that petitioner intentionally failed to register upon his arrival in Palmdale. Because the court neither disagrees with that proposition nor finds the Apprendi principle inapplicable despite that proposition, today’s opinion does not actually resolve petitioner’s Apprendi claim.
Concurrence Opinion
I concur in the majority opinion except for its response to petitioner’s belated claim under Apprendi v. New Jersey (2000)