In re WILLIE CLIFFORD COLEY on Habeas Corpus.
No. S185303
Supreme Court of California
Aug. 30, 2012.
55 Cal. 4th 524
Nancy L. Tetreault, under appointment by the Supreme Court, for Petitioner Willie Clifford Coley.
Michael Vitiello, Patrick Blood and Gary Mandinach for California State Public Defenders Association as Amicus Curiae on behalf of Petitioner Willie Clifford Coley.
Richard Such for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Petitioner Willie Clifford Coley.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Victoria B. Wilson, Janet E. Neeley and Noah P. Hill, Deputy Attorneys General, for Respondent State of California.
OPINION
CANTIL-SAKAUYE, C. J.—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. (
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
Subsequently, in People v. Carmony (2005) 127 Cal.App.4th 1066 [26 Cal.Rptr.3d 365] (Carmony II), a panel of the California Court of Appeal, Third Appellate District, concluded in a two-to-one decision that a 25-year-to-life sentence under the Three Strikes law constituted cruel and/or unusual punishment, in violation of the federal and state Constitutions, as applied to a defendant whose triggering offense was the failure to annually update his sex offender registration within five working days of his birthday. The defendant in Carmony II had properly registered as a sex offender at his current address one month before his birthday, had continued to reside at the same address
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, 127 Cal.App.4th at p. 1078), the trial court in this case, in refusing to strike any of petitioner‘s prior convictions and in imposing a 25-year-to-life sentence under the Three Strikes law, found that petitioner‘s triggering offense was not simply a minor or technical oversight by a defendant who had made a good faith effort to comply with the sex offender registration law. Rather, the court found that petitioner had never registered as a sex offender at his current address and had knowingly and intentionally refused to comply with his obligations under the sex offender registration law.
Petitioner‘s conduct, as found by the trial court, demonstrated that, despite the significant punishment petitioner had incurred as a result of his prior serious offenses, he was still intentionally unwilling to comply with an important legal obligation, and thus his triggering criminal conduct bore both a rational and substantial relationship to the antirecidivist purposes of the Three Strikes law. Given that relationship and the extremely serious and heinous nature of petitioner‘s prior criminal history, we conclude that, under Ewing, supra, 538 U.S. 11, the imposition of a 25-year-to-life sentence does not constitute cruel and unusual punishment under the circumstances of this case. In light of the facts underlying the offense in this case as found by the trial court, we need not decide whether the
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 (
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
“Petitioner‘s roommate then ordered the woman to call another man and invite him to the residence. When the man arrived, petitioner‘s roommate invited him inside and took him to the bedroom where petitioner was keeping the woman. Petitioner‘s roommate put a knife to the man‘s throat, threatened to kill him, and took his wallet. “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.’ ”
The district attorney thereafter charged petitioner with two felony offenses: (1) failure to register as a sex offender upon arrival in a jurisdiction (
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.6 The prosecution‘s evidence also established that after being released from prison in January 2001, petitioner had moved in with his girlfriend and her children who resided in the City of Palmdale and had continued to reside there until he was arrested in August 2001. As noted above, the prosecution also presented evidence that records from the Department of Justice indicated that petitioner had not registered as a sex offender or updated his sex offender registration after his release from prison in January 2001.
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.7
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) 87 Cal.App.4th 991 [105 Cal.Rptr.2d 80], a then recent Court of Appeal decision in which the appellate court concluded that the trial court had abused its discretion in refusing to strike prior convictions in a Three Strikes case in which the defendant‘s triggering offense was also a failure to update his sex registration within five days of his birthday. The trial court in the present case stated in this regard: “With respect to the Court of Appeal‘s decision in People v. Cluff... , I think that is an appropriate disposition under the facts of that case, but the facts of this case appear to me to be in stark contrast to those in the Cluff case, because in the Cluff case that defendant made previous efforts to register and did register on previous occasions.”
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, 127 Cal.App.4th 1066, concluded that the imposition of a 25-year-to-life sentence under the Three Strikes law upon a defendant who had been convicted of failing to annually update his sex registration within five days of his birthday violated the prohibition against cruel and/or unusual punishment contained in the federal and California Constitutions. We discuss the Carmony II decision below (post, at pp. 544-548).
Thereafter, petitioner filed the present habeas corpus proceeding, contending that, as in Carmony II, supra, 127 Cal.App.4th 1066, his 25-year-to-life
After briefing and argument, the Court of Appeal addressed petitioner‘s
II. Review of Relevant United States Supreme Court Eighth Amendment Decisions
The
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) 99 U.S. 130, 136
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) 445 U.S. 263 [63 L.Ed.2d 382, 100 S.Ct. 1133] (Rummel), the initial case in this line of decisions, the defendant had been sentenced to a term of life in prison with the possibility of parole under a Texas statute that mandated a life sentence for any person convicted of a third felony offense. In Rummel itself, the defendant‘s triggering offense was a
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
Just three years after the decision in Rummel, supra, 445 U.S. 263, the United States Supreme Court, with Justice Powell now writing for a five-judge majority, reached a contrary conclusion in Solem, supra, 463 U.S. 277. In Solem, the defendant had a prior criminal record of relatively minor, nonviolent crimes and was convicted in the current prosecution of a felony offense for “uttering a ‘no account’ check for $100.” (463 U.S. at p. 281.) In Solem, however, the triggering offense was the defendant‘s seventh felony conviction, and the trial court sentenced him under South Dakota‘s recidivist sentencing provision to a term of life imprisonment, a term which, under South Dakota law, was not subject to parole.
In analyzing whether the defendant‘s sentence violated the prohibition on cruel and unusual punishment set forth in 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, 463 U.S. at p. 311, fn. 3 (dis. opn. of Burger, C. J.)), it concluded that given the defendant‘s lengthy criminal history the sentence imposed in Solem did not reflect “such an extraordinary case that reasonable men could not differ about the appropriateness of this punishment.” (Ibid.)
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, 538 U.S. 11—a case that, as we have already noted, arose under California‘s Three Strikes law. In Ewing, the defendant had a lengthy prior criminal history that included one
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
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 cruel and unusual punishment challenges to lengthy noncapital sentences that had been imposed outside the antirecidivist context (see Hutto v. Davis (1982) 454 U.S. 370 [70 L.Ed.2d 556, 102 S.Ct. 703] [rejecting
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, 538 U.S. at p. 28.) The opinion initially observed that “[e]ven standing alone, Ewing‘s theft” of nearly $1,200 worth of merchandise “should not be taken lightly. His crime was certainly not ‘one of the most passive felonies a person could commit.’ ” (Ibid.) The opinion further emphasized, however, that “[i]n weighing the gravity of Ewing‘s offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature‘s choice of sanctions. In imposing a three strikes sentence, the State‘s interest is not merely punishing the offense of conviction, or the ‘triggering’ offense: ‘[I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’ ” (Id. at p. 29, italics added.)
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, 538 U.S. at p. 30), the opinion concluded that the sentence was justified “by the State‘s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by [Ewing‘s] own long, serious criminal record” (id. at pp. 29-30). The opinion explained that Ewing‘s sentence “reflects a rational legislative judgment, entitled to deference, that offenders who have
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, 538 U.S. at p. 30), Justice O‘Connor‘s opinion concluded, “Ewing‘s sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law . . . does not violate the
In Ewing, two justices—Justices Scalia and Thomas—each wrote a separate concurring opinion, both agreeing that Ewing‘s sentence did not violate the
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, 538 U.S. at p. 36 (dis. opn. of Breyer, J.)),9 but unlike the lead opinion the dissent, in applying that approach, concluded that the case before it did constitute one of the rare cases “in which a court can say with reasonable confidence that the punishment is ‘grossly disproportionate’ to the crime.” (id. at p. 37 (dis. opn. of Breyer, J.).) In reaching that conclusion, the dissent, after considering the “[t]hree kinds of sentence-related characteristics” that it believed “define the relevant comparative spectrum“—“(a) the length of the prison term in real time, i.e., the time that the offender is likely actually to spend in prison; (b)
the sentence-triggering criminal conduct, i.e., the offender‘s actual behavior or other offense-related circumstances; and (c) the offender‘s criminal history” (id. at p. 37)—determined that the circumstances presented in Ewing fell between the circumstances presented in the court‘s previous recidivist sentencing decisions in Rummel and Solem, and ultimately found that, as in Solem, “Ewing‘s sentence (life imprisonment with a minimum term of 25 years) is grossly disproportionate to the triggering offense conduct—stealing three golf clubs—Ewing‘s recidivism notwithstanding.” (Ewing, supra, at p. 53 (dis. opn. of Breyer, J.).)10
III. Review of Relevant Post-Ewing Decisions
A. Carmony II
Two years after the United States Supreme Court‘s decision in Ewing, supra, 538 U.S. 11, a panel of the California Court of Appeal was faced with the question whether a 25-year-to-life sentence under the Three Strikes law violated either the federal constitutional prohibition on cruel and unusual punishments or the state constitutional prohibition on cruel or unusual punishment, when imposed upon a defendant whose triggering offense was the failure to update his sex offender registration within five working days of his birthday. (Carmony II, supra, 127 Cal.App.4th 1066.)
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 “[d]efendant 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, 127 Cal.App.4th at p. 1073.)
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.11
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) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628]) and reversed the sentence on that basis; as a consequence, the appellate court did not reach the question whether the 25-year-to-life sentence constituted cruel and/or unusual punishment. We granted review. After first concluding that a trial court‘s refusal to strike a prior under the Three Strikes law is properly reviewable under an abuse of discretion standard (Carmony I, supra, 33 Cal.4th at pp. 373–376), this court held that in light of Carmony‘s prior record, the Court of Appeal had erred in finding that the trial court had
On remand, the Court of Appeal addressed the constitutional issue in its decision in Carmony II, supra, 127 Cal.App.4th 1066, and concluded, in a two-to-one decision, that, under the circumstances of that case, the 25-year-to-life sentence imposed under the Three Strikes law violated both the federal Constitution‘s prohibition of cruel and unusual punishments and the state Constitution‘s prohibition of cruel or unusual punishment. (Carmony II, supra, at pp. 1074–1089.)
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
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, 127 Cal.App.4th at p. 1079.) The court stated that “[i]t is beyond dispute that a life sentence is grossly disproportionate to the offense just described.” (Ibid.)
The court in Carmony II recognized that in determining the validity of the sentence under the
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, 551 F.3d 875 (Gonzalez). As in Carmony II, the defendant in Gonzalez had previously been convicted of a number of serious and violent felonies,15 but the defendant‘s triggering offense that had resulted in a 25-year-to-life sentence under the Three Strikes law was a conviction of failing to update his sex offender registration within five working days of his birthday.
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, 538 U.S. 11, and Andrade, supra, 538 U.S. 63, the court in Gonzalez embraced the Carmony II court‘s characterization of the annual registration requirement as “merely a ‘backup measure to ensure that authorities have current accurate information’ ” and of a failure to comply
The court in Gonzalez recognized that “California has a valid ‘public-safety interest in incapacitating and deterring recidivist felons’ ” (Gonzalez, supra, 551 F.3d at p. 886) and that, under Ewing, supra, 538 U.S. 11, it was required to consider the defendant‘s criminal history in determining the validity of the defendant‘s sentence for
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, 551 F.3d at p. 887.)
Concluding, for the foregoing reasons, that Gonzalez‘s sentence “raises an inference of gross disproportionality” (Gonzalez, supra, 551 F.3d at p. 887), the court in Gonzalez went on to undertake a comparison of Gonzalez‘s sentence with the sentences imposed for other crimes in California and for the same crime in other states. (Id. at pp. 887–888.) After conducting that comparison, the court found that it confirmed the view that Gonzalez‘s sentence was grossly disproportionate and thus violated the
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) 176 Cal.App.4th 428 [97 Cal.Rptr.3d 702] (Nichols), another panel of the Court of Appeal, Third Appellate District (the same district that had decided Carmony II), faced the constitutionality of a third strike sentence imposed for another sex offender registration claim. The triggering offense in Nichols was the defendant‘s failure to comply with the distinct provision of the sex offender registration statute requiring a sex offender to register a new address within five working days of a change of residence. The defendant contended that the decision in Carmony II required the appellate court to find that the 25-year-to-life sentence imposed by the trial court in that case constituted cruel and unusual punishment in violation of the
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, 123 Cal.App.4th 695]. The Carmony II court noted ‘the offense committed by Meeks was not the technical violation committed by defendant. Meeks failed to register after changing his residence and therefore, unlike in the present case, law enforcement authorities did not have Meeks‘s correct address and information.’ ” (Nichols, supra, 176 Cal.App.4th at p. 436, quoting Carmony II, supra, 127 Cal.App.4th at p. 1082, fn. 11.) The court in Nichols continued: “It is this distinction that supports the sentence given in this case. Unlike the failure in Carmony II, defendant‘s failure to register thwarted the fundamental purpose of the registration law, thereby leaving the public at risk. ‘The purpose of the sex offender registration law is to require that the offender identify his present address to law enforcement authorities so that he or she is readily available for police surveillance.’ ” (Nichols, supra, 176 Cal.App.4th at p. 437, quoting Carmony II, supra, at p. 1072.)
Reviewing the facts presented in the Nichols case, the court stated: “Here, for a period of over eight months, defendant‘s whereabouts were unknown. Even his federal parole officer did not know where he was. . . . Such blatant disregard of the registration act and complete undercutting of the act‘s purposes is a serious offense.” (Nichols, supra, 176 Cal.App.4th at p. 437.) “Defendant‘s failure to register when he left Rocklin and his thwarting the purpose of the registration act of being able to be located, coupled with the seriousness of his prior convictions and his sustained criminality, all demonstrate his sentence was not grossly disproportionate to his offense.” (Ibid.)
D. Crosby v. Schwartz
Most recently, in Crosby v. Schwartz (9th Cir. 2012) 678 F.3d 784 (Crosby), another three-judge panel of the Ninth Circuit rejected a habeas corpus petitioner‘s contention that the 26-year-to-life sentence imposed upon him under the Three Strikes law violated the
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, 127 Cal.App.4th 1066, Gonzalez, supra, 551 F.3d 875, Nichols, supra, 176 Cal.App.4th 428, and Crosby, supra, 678 F.3d 784, between two categories of defendants who, these cases hold, may properly be treated differently for cruel and unusual punishment purposes. Thus, on the one hand, these decisions conclude that a 25-year-to-life sentence under the Three Strikes law is constitutional as applied to a defendant whose current address is unknown to law enforcement authorities and who has failed to comply with a crucial aspect of the sex offender registration requirements—such as a defendant‘s failure to register a current address upon arrival in a jurisdiction. On the other hand, the decisions conclude that such a sentence is unconstitutional as applied to a defendant who has provided law enforcement authorities with accurate information regarding his or her current address and has generally demonstrated a good faith effort to comply with the sex offender registration requirements but who, through a negligent oversight, has failed to affirmatively confirm the continued accuracy of his or her existing registration information by updating the information each year within five working days of his or her birthday.
Indeed, in his opening brief, petitioner explicitly “urges this Court to adopt the reasoning of the Third District [(which decided both Carmony II and Nichols)]. The failure to re-register the same address in the same year does not thwart the fundamental purpose of the registration law. It is a purely ‘passive, nonviolent, regulatory offense that posed no direct or immediate danger to society.’ (People v. Nichols, supra, 176 Cal.App.4th at p. 435.) On the other hand, registration violations that result in the police not knowing the whereabouts of a sexual offender are sufficiently grave to serve as a trigger crime for a third strike sentence.”
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 his 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 his 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, this 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 this 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 his 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.
First, the fact that the 25-year-to-life sentence at issue in this case was imposed on the basis of petitioner‘s conviction of the offense of failing to annually update his sex offender registration within five working days of his birthday is not, in itself, sufficient to establish that his cruel and unusual punishment claim is equivalent to the cruel and unusual punishment claims that were sustained in Carmony II and Gonzalez. None of the United States Supreme Court decisions that has addressed an
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.
In some instances, the relevant circumstances relating to the defendant‘s commission of the offense in question may be clear and undisputed and thus may pose no problem for a court‘s
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) 519 U.S. 148, 155 [136 L.Ed.2d 554, 117 S.Ct. 633] (Watts) [unless specific findings are made, “the jury cannot be said to have ‘necessarily rejected’ any facts when it returns a general verdict . . .“]; Dowling v. United States (1990) 493 U.S. 342, 349 [107 L.Ed.2d 708, 110 S.Ct. 668]; People v. Towne (2008) 44 Cal.4th 63, 86 [78 Cal.Rptr.3d 530, 186 P.3d 10] (Towne) [“an acquittal merely establishes the existence of a reasonable doubt as to guilt. Unless specific findings are made, ‘the jury cannot be said to have “necessarily rejected” any facts when it returns a general verdict . . . .’ “]; In re Coughlin (1976) 16 Cal.3d 52, 59 [127 Cal.Rptr. 337, 545 P.2d 249] [“[T]he fact of an acquittal establishes only that the trier of fact entertained a reasonable doubt of defendant‘s guilt.“]; In re Dunham (1976) 16 Cal.3d 63, 66–67 [127 Cal.Rptr. 343, 545 P.2d 255].)
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, 87 Cal.App.4th 991. In Cluff, the Court of Appeal found that the trial court had abused its discretion in failing to strike prior convictions so as to avoid a third strike sentence in a case in which the defendant had properly registered his current address but had negligently failed to update his registration within five working days of his birthday.
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, 176 Cal.App.4th 428, and People v. Meeks, supra, 123 Cal.App.4th 695, this court should reject petitioner‘s
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
In Coelho, supra, 89 Cal.App.4th 861, the Court of Appeal, relying upon the principles underlying the Apprendi line of decisions, concluded that the provision of the Three Strikes law that requires a trial court to impose a consecutive Three Strikes sentence for each current offense of which a defendant is convicted that is “not committed on the same occasion, and not arising from the same set of operative facts” as another current offense (
As we explain, the Court of Appeal‘s decision in Coelho, supra, 89 Cal.App.4th 861, is inapposite because 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., Watts, supra, 519 U.S. 148, 155–157; Towne, supra, 44 Cal.4th 63, 85–88.) In Towne, which was decided after Apprendi, we specifically rejected the claim that the trial court‘s reliance upon its factual findings with regard to a charge of which the defendant had been acquitted by a jury violated the defendant‘s federal constitutional right to jury trial as established in Apprendi and its progeny, explaining that “[p]ermitting a judge to consider evidence of conduct underlying counts of which the defendant was acquitted does not in any way undermine the jury‘s role in establishing, by its verdict, the maximum authorized sentence.” (Towne, supra, at p. 87.) And in United States v. Booker (2005) 543 U.S. 220, 244–268 [160 L.Ed.2d 621, 125 S.Ct. 738] (Booker), in an opinion by Justice Breyer that expressed the views of a
In the present case, as in Towne, supra, 44 Cal.4th 63, the trial court‘s reliance upon its view of the facts underlying the charge of which petitioner was acquitted, in exercising its discretion not to strike any of petitioner‘s prior serious or violent felony convictions, did not violate petitioner‘s constitutional right to jury trial as set forth in Apprendi and its progeny. The trial court‘s finding in this regard did not mandate a particular sentence under the Three Strikes law; the court simply relied upon its factual determination regarding petitioner‘s course of conduct in exercising the discretion afforded by the Three Strikes statutory scheme in choosing a sentence within the maximum term statutorily authorized by the jury‘s verdict. (See, e.g., Southern Union Co. v. United States (2012) 567 U.S. 343 [183 L.Ed.2d 318, 326, 132 S.Ct. 2344] [under Apprendi, “judges may exercise discretion in sentencing” so long as they do not ” ‘inflic[t] punishment that the jury‘s verdict alone does not allow’ “].)
The high court‘s
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. (
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
Under
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 his 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, 538 U.S. 11, in determining the gravity of petitioner‘s conduct in evaluating an
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.
WERDEGAR, J., Concurring.
—I concur in the majority opinion except for its response to petitioner‘s belated claim under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348], which petitioner in my view has forfeited by failing to raise it below. I share Justice Liu‘s concern that the majority opinion, in choosing to address Apprendi‘s application to petitioner‘s sentence, does not fully respond to petitioner‘s argument. (See conc. opn. of Liu, J., post.)
LIU, J., Concurring.
—I join the opinion of the court except for its treatment of petitioner‘s claim that the
Petitioner was charged with two felony offenses: failure to register as a sex offender upon arrival in a jurisdiction and failure to update his sex offender registration within five working days of his birthday. The jury acquitted petitioner of the former offense and convicted him of the latter. Before the sentencing hearing, petitioner asked the trial court to strike at least two of his three prior felony convictions. He relied on the assertedly minor and nonaggravated nature of his conviction for failing to update his registration and argued that, in his case, a 25-year-to-life sentence would constitute cruel and unusual punishment in violation of the
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
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) 519 U.S. 148, 155–157 [136 L.Ed.2d 554, 117 S.Ct. 633]]; [People v. Towne (2008) 44 Cal.4th 63, 85–88 [78 Cal.Rptr.3d 530, 186 P.3d 10]].)” (Maj. opn., ante, at p. 557.) According to the court, “the constitutional principle established by the Apprendi line of decisions is not violated by a trial court‘s own factual findings regarding ‘the real conduct that underlies the [defendant‘s] criminal conviction’ ([United States v. Booker (2005) 543 U.S. 220, 250 [160 L.Ed.2d 621, 125 S.Ct. 738]]) so long as, under the applicable statutory scheme, the findings do not mandate a particular sentence but leave the trial court free to exercise sentencing discretion. (Id. at pp. 259–265.)” (Maj. opn., ante, at p. 558.) These precedents “clearly establish that petitioner‘s Apprendi claim lacks merit,” the court says, because the trial court‘s finding of petitioner‘s intentional failure to register “did not mandate a particular sentence under the Three Strikes law; the court simply relied upon its factual determination regarding petitioner‘s course of conduct in exercising the discretion afforded by the Three Strikes statutory scheme in choosing a sentence within the maximum term statutorily authorized by the jury‘s verdict.” (Id. at pp. 559, fn. 19, 558.)
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
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
As to the first possibility, the court explains that petitioner‘s intentional failure to register is a major factor supporting its “conclu[sion] that the circumstances surrounding petitioner‘s triggering offense distinguish this case from [People v. Carmony (2005) 127 Cal.App.4th 1066 [26 Cal.Rptr.3d 365]] and Gonzalez [v. Duncan (9th Cir. 2008) 551 F.3d 875] and are more comparable to [People v.] Nichols [(2009) 176 Cal.App.4th 428 [97 Cal.Rptr.3d 702]] and Crosby [v. Schwartz (9th Cir. 2012) 678 F.3d 784].”
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
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, 530 U.S. at p. 490 [“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Italics added.)].) In the
But there are serious counterarguments. In Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428] (Ring), the United States Supreme Court held that aggravating factors required for imposition of the death penalty must be found by a jury, not by a judge. Although the aggravating factors in Ring were statutorily specified, they were specified by statute only because the high court‘s
Take another example. The high court in Enmund v. Florida (1982) 458 U.S. 782, 797 [73 L.Ed.2d 1140, 102 S.Ct. 3368] held that the
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, 543 U.S. at p. 237 (Booker); see Mistretta v. United States (1989) 488 U.S. 361, 368 [102 L.Ed.2d 714, 109 S.Ct. 647] [U.S. Sentencing Com. is an independent agency located in the federal judicial branch].) The high court rejected this argument as “lack[ing] constitutional significance.” (Booker, at p. 237.) It was sufficient for purposes of Apprendi that the guidelines set forth facts essential to imposing particular sentences. (Booker, at p. 238.) “Regardless of whether Congress or a Sentencing Commission concluded that a particular fact must be proved in
The high court in Booker expressly and approvingly noted that its conclusion went beyond the four corners 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, 530 U.S. at 490 (emphasis in Brief for United States)). The simple answer, of course, is that we were only considering a statute in that case. . . . [¶] More important than the language used in our holding in Apprendi are the principles we sought to vindicate. Those principles are unquestionably applicable to the Guidelines. They are not the product of recent innovations in our jurisprudence, but rather have their genesis in the ideals our constitutional tradition assimilated from the common law. [Citation.] The Framers of the Constitution understood the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions’ without the benefit of a jury in criminal cases. The Federalist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton). . . . Regardless of whether the legal basis of the accusation is in a statute or in guidelines promulgated by an independent commission, the principles behind the jury trial right are equally applicable.” (Booker, supra, 543 U.S. at pp. 238–239.) Booker further suggests the absence of any bright line limiting Apprendi‘s applicability to essential facts established by a legislative enactment.
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, fn. 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
In sum, petitioner raised the Apprendi claim only at the last minute when prompted to do so by this court. Accordingly, I would reject the claim as forfeited instead of considering it on the merits. In all other respects, I join the opinion of the court.