Gonzalez v. Duncan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CECILIO GONZALEZ,  No. 06-56523

Petitioner-Appellant,

v.  D.C. No.

CV-04-09786-DOC

W. A. DUNCAN,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

April 9, 2008—Pasadena, California

Filed December 30, 2008

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

16829

16832 GONZALEZ v. DUNCAN

COUNSEL

Sean K. Kennedy, Federal Public Defender, Gia Kim

(argued), Deputy Federal Public Defender, Los Angeles, Cali-

fornia, for the petitioner-appellant.

Edmund G. Brown, Jr., Attorney General of the State of Cali-

fornia, Dane R. Gillette, Chief Assistant Attorney General,

Pamela C. Hamanaka, Senior Assistant Attorney General,

Kenneth C. Byrne, Supervising Deputy Attorney General,

Carl N. Henry (argued), Deputy Attorney General, Los Ange-

les, California, for the respondent-appellee.

GONZALEZ v. DUNCAN 16833

OPINION

BYBEE, Circuit Judge:

Cecilio Gonzalez was convicted by a jury of failing to

update his annual sex offender registration within five

working days of his birthday, in violation of California Penal

Code § 290(a)(1)(D).1 Because of his prior criminal convic-

tions, he received a sentence of 28 years to life imprisonment

under California’s “Three Strikes” law. On habeas review, we

must decide whether his sentence violates the Eighth Amend-

ment’s prohibition against cruel and unusual punishment and,

if so, whether the contrary conclusion of the California Court

of Appeal constituted an unreasonable application of clearly

established federal law.

The California courts have characterized the state’s regis-

tration requirement as a regulatory offense, a “most technical

violation” that “by itself, pose[s] no danger to society.” Peo-

ple v. Cluff, 105 Cal. Rptr. 2d 80, 81, 86 (Cal. Ct. App. 2001).

In a case materially indistinguishable from this one, the Cali-

fornia Court of Appeal concluded that a Three Strikes sen-

tence of 25 years to life imprisonment for violating the

registration requirement was “grossly disproportionate to the

offense” and violated the Eighth Amendment. People v. Car-

mony, 26 Cal. Rptr. 3d 365, 368-69 (Cal. Ct. App. 2005).

Although our standard of review is more deferential, we too

conclude that Gonzalez’s sentence is grossly disproportionate

to his offense. We further conclude that the California Court

of Appeal’s decision affirming Gonzalez’s sentence consti-

tutes an unreasonable application of clearly established fed-

1

The provisions of California Penal Code § 290 have since been recodi-

fied to California Penal Code § 290.012. In this opinion, we use the sec-

tion numbers and statutory language corresponding to the charged crimes

when Gonzalez was sentenced.

16834 GONZALEZ v. DUNCAN

eral law under 28 U.S.C. § 2254(d)(1). We therefore reverse

the district court’s denial of Gonzalez’s petition and remand

with instructions to grant the petition for a writ of habeas cor-

pus.

I

On August 10, 2001, Petitioner Cecilio Gonzalez, a con-

victed sex offender, was charged by information in Los Ange-

les County Superior Court with two felony violations of

California’s sex offender registration statute, California Penal

Code § 290(a)(1)(A), for allegedly failing to register a change

of address on and between May 16, 2000 and May 31, 2001.

The information further alleged that Gonzalez had been con-

victed of three serious or violent felonies that constituted

“strikes” under California’s Three Strikes law.

Gonzalez pled not guilty. Prior to trial, he moved to pro-

ceed in propria persona. At a pretrial hearing on September 7,

2001, the superior court expressed concern about the possibil-

ity that Gonzalez would receive a life sentence even though

the facts indicated that Gonzalez had attempted to comply

with the registration requirements. The court thus encouraged

Gonzales to accept a plea agreement in exchange for a mid-

term sentence of two years. Gonzalez maintained his inno-

cence and refused to accept a plea. The court granted Gonza-

lez’s motion to proceed pro per.

On September 10, 2001, the prosecution amended the infor-

mation. Count 1 of the amended information alleged that

Gonzalez failed to register a change of address on and

between May 16, 2000, and May 31, 2001, in violation of

California Penal Code § 290(a)(1)(A), and Count 2 alleged

that he failed to update his registration within five working

days of his February 24, 2001, birthday in violation of Cali-

fornia Penal Code § 290(a)(1)(D). The amended information

retained the allegation of three prior serious or violent felony

convictions under California’s Three Strikes law.

GONZALEZ v. DUNCAN 16835

Trial began on January 16, 2002. When the superior court

asked if the parties were ready to begin, Gonzalez expressed

his willingness to accept a plea agreement in exchange for a

one year sentence. The court offered a four year sentence,

which Gonzalez declined. Gonzalez moved for a Romero2

hearing to permit the court to strike one or more of his prior

felony convictions for Three Strikes sentencing purposes in

the interest of justice. After a brief hearing, the superior court

declined to strike any of the prior convictions.

The case proceeded to a jury trial, during which Gonzalez

cross-examined prosecution witnesses and presented a

defense. The government’s theory on Count 1 was that Gon-

zalez had moved twice without updating his sex offender reg-

istration: first, from his grandmother’s house in Lake View

Terrace to his wife’s house in Chatsworth; and second, from

the house in Chatsworth to an apartment he allegedly shared

with his wife in North Hills.

The government’s basis for Count 2 was that Gonzalez had

failed to update his registration within five working days of

his February 24, 2001, birthday. Testimony established that

the California Department of Corrections notified Gonzalez of

his duty to register annually within five working days of his

birthday on May 2, 2000. Gonzalez registered his Lake View

Terrace address on May 23, 2000, nine months before his

February 24, 2001, birthday. On the registration form, Gonza-

lez initialed the statement: “I must annually, within 5 working

days of my birthday, go to the law enforcement agency hav-

ing jurisdiction over my location or place of residence and

update my registration information.” Gonzalez, however, did

not update his registration until May 21, 2001, within one

year of being advised of his duty to report annually, but three

months after his birthday.

2

See People v. Superior Court (Romero), 917 P.2d 628 (Cal. 1996).

16836 GONZALEZ v. DUNCAN

On January 23, 2002, the jury acquitted Gonzales of failing

to register a change of address but convicted him of failing to

update his registration annually within five working days of

his birthday. At a bench trial to determine the validity of Gon-

zalez’s prior convictions, the prosecutor introduced abstracts

of judgment for a 1988 conviction for cocaine possession, a

1989 conviction for committing a lewd act with a child under

14 years of age, a 1989 conviction for attempted rape by force,3

and a 1992 conviction for second-degree robbery. The supe-

rior court found three prior serious or violent felony convic-

tions under California’s Three Strikes law4 and three prior

prison terms, which each triggered additional one-year sen-

tence enhancements under California law.5 Gonzalez renewed

his Romero motion to strike his prior convictions, which the

superior court denied. The superior court sentenced Gonzalez

to an indeterminate period of 28 years to life imprisonment.

The California Court of Appeal affirmed the sentence in an

eight page unpublished opinion, and the California Supreme

Court declined to hear the case on direct appeal.

Gonzalez filed state habeas petitions in the California Court

of Appeal and the California Supreme Court, which were both

summarily denied. Gonzalez then filed this 28 U.S.C. § 2254

petition for a writ of habeas corpus in the United States Dis-

3

The 1989 lewd act and attempted rape convictions arose from a single

incident.

4

Under the Three Strikes law, a defendant with a current felony convic-

tion and no fewer than two prior serious or violent felony convictions must

be sentenced to an indeterminate period of life imprisonment, with the

minimum term calculated as the greater of three times the punishment for

each current felony conviction, or 25 years. Cal. Penal Code

§§ 667(e)(2)(A) & 1170.12(c)(2)(A).

5

Under California Penal Code § 667.5(b), a defendant convicted of a

felony receives a one-year enhancement for each prior separate prison

term served for any felony, “provided that no additional term shall be

imposed . . . for any prison term served prior to a period of five years in

which the defendant remained free of both prison custody and the com-

mission of an offense which results in a felony conviction.”

GONZALEZ v. DUNCAN 16837

trict Court for the Central District of California. A magistrate

judge recommended denying Gonzalez habeas relief, and the

district court adopted the recommendation and entered judg-

ment dismissing the petition. Gonzalez timely filed a notice

of appeal and applied for a certificate of appealability. We

certified one issue: “whether appellant’s sentence of 28 years-

to-life under California’s Three Strikes law violates the

Eighth Amendment.”6

II

We review the district court’s denial of a 28 U.S.C. § 2254

petition for a writ of habeas corpus de novo. Silva v. Wood-

ford, 279 F.3d 825, 835 (9th Cir. 2002). Applying the defer-

ential standard of review of the Antiterrorism and Effective

Death Penalty Act (AEDPA), we will not disturb the deci-

sions of the California state courts with respect to Gonzalez’s

Eighth Amendment claim unless the state court’s resolution of

that claim “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court.” 28 U.S.C. § 2254(d); see also Wil-

liams v. Taylor, 529 U.S. 362, 405-06 (2000); Ramirez v. Cas-

tro, 365 F.3d 755, 762 (9th Cir. 2004). Furthermore, we

presume that factual findings made by a state court are correct

unless the petitioner rebuts that presumption with clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

III

[1] The Eighth Amendment mandates that “[e]xcessive bail

shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” “The final clause prohib-

6

Gonzalez raises two uncertified issues in his opening brief, which we

construe as a motion to expand the Certificate of Appealability. See 9th

Cir. R. 22-1(e). Because Gonzalez failed to make “a substantial showing

of the denial of a constitutional right” with respect to those issues, we

deny that motion. See 28 U.S.C. § 2253(c)(2).

16838 GONZALEZ v. DUNCAN

its not only barbaric punishments, but also sentences that are

disproportionate to the crime committed.” Solem v. Helm, 463

U.S. 277, 284 (1983). Reviewing its Eighth Amendment juris-

prudence, the Court has stated that “one governing legal prin-

ciple emerges as ‘clearly established’ under § 2254(d)(1): A

gross disproportionality principle is applicable to sentences

for terms of years.” Lockyer v. Andrade, 538 U.S. 63, 72

(2003). The “ ‘precise contours’ of [the gross disproportion-

ality principle] ‘are unclear,’ ” and “applicable only in the

‘exceedingly rare’ and ‘extreme’ case.” Id. at 72-73 (quoting

Harmelin v. Michigan, 501 U.S. 957, 998, 1001 (1991) (Ken-

nedy, J., concurring in part and concurring in judgment)).

Five Supreme Court decisions supply guidance on how gross

disproportionality review operates in practice.

First, in Rummel v. Estelle, the Court considered the impo-

sition of a life sentence with the possibility of parole within

12 years under a Texas recidivist sentencing statute. 445 U.S.

263, 265-66, 268 (1980). Rummel was convicted of a felony

for obtaining $120.75 by false pretenses; he had prior felony

convictions for fraudulently using a credit card to obtain $80

worth of goods or services and for passing a forged check in

the amount of $28.36. Id. at 265-66. The Court upheld the

sentence but cautioned that its decision did not mean “that a

proportionality principle would not come into play in the

extreme example [of] a legislature [making] overtime parking

a felony punishable by life imprisonment.” Id. at 274 n.11.

By contrast, in Solem v. Helm, the Court held that imposi-

tion of a life sentence without the possibility of parole under

South Dakota’s recidivist sentencing statute was grossly dis-

proportionate to the triggering offense of uttering a “no

account” check for $100. 463 U.S. 277, 281-82, 284 (1983).

Ordinarily, the maximum punishment for this offense would

have been five years imprisonment and a $5,000 fine; how-

ever, Helm had three prior third degree burglary convictions,

as well as single convictions for obtaining money under false

pretenses, grand larceny, and third-offense driving while

GONZALEZ v. DUNCAN 16839

intoxicated. Id. at 279-81. All of Helm’s crimes were “nonvi-

olent, none was a crime against a person, and alcohol was a

contributing factor in each case.” Id. at 280.

[2] The Court announced three objective factors to guide

review of a sentence for a term of years under the Eighth

Amendment. First, a reviewing court must look to the gravity

of the offense and the harshness of the penalty. Id. at 290-91.

The Court noted that “Helm’s crime was one of the most pas-

sive felonies a person could commit,” involving neither vio-

lence nor threat of violence to any person, and the Court

further reasoned that Helm’s prior felonies were all relatively

minor. Id. at 296-97 (internal quotation marks omitted). Sec-

ond, the Court stated that “it may be helpful to compare the

sentences imposed on other criminals in the same jurisdic-

tion.” Id. at 291. Applying this factor, the Court found that

Helm’s offense was much less severe than the other crimes

punishable by life imprisonment without possibility of parole

in South Dakota, which included murder, treason, first-degree

manslaughter, first-degree arson and kidnaping. Id. at 298.

Finally, the majority explained that reviewing “courts may

find it useful to compare the sentences imposed for commis-

sion of the same crime in other jurisdictions.” Id. at 291. On

this point, the Court found that Helm’s sentence was more

severe than that authorized for the same crime in all but one

other state. Id. at 299. The Court concluded that Helm’s sen-

tence violated the Eighth Amendment. Id. at 303.

In a third case, Harmelin v. Michigan, the Court upheld a

life sentence without the possibility of parole for possession

of more than 650 grams of cocaine. 501 U.S. 957, 961, 996

(1991). With respect to the general principles of gross dispro-

portionality review, no opinion commanded a majority of the

Court. Seven members of the Court agreed, however, that the

Eighth Amendment contains a gross disproportionality princi-

ple, although they disagreed as to the factors that comprise it.

Id. at 996-97 (Kennedy, J., concurring in part and concurring

16840 GONZALEZ v. DUNCAN

in the judgment); id. at 1009 (White, J., dissenting); id. at

1027 (Marshall, J., dissenting).

Justice Kennedy’s opinion, joined by Justices O’Connor

and Souter, represented the narrowest view of a majority of

the Court on the question of gross disproportionality review.

See Marks v. United States, 430 U.S. 188, 193 (1977). Under

Justice Kennedy’s view, the Eighth Amendment “does not

require strict proportionality between crime and sentence.

Rather, it forbids only extreme sentences that are ‘grossly dis-

proportionate’ to the crime.” Harmelin, 501 U.S. at 1001

(Kennedy, J., concurring in part and concurring in the judg-

ment) (quoting Helm, 463 U.S. at 288, 303). Though he

acknowledged the three factors set forth in Helm, Justice Ken-

nedy thought that the case “did not announce a rigid three-part

test.” Id. at 1004. Rather, he thought the Court should initially

examine the “crime committed and the sentence imposed” and

only proceed with intrajurisdictional and interjurisdictional

analyses “in the rare case[s]” where the initial examination

“leads to an inference of gross disproportionality.” Id. at

1005-06.

Applying this methodology, Justice Kennedy concluded

that Harmelin’s sentence, when compared with his crime, did

not give rise to an inference of gross disproportionality, and

thus that no further inquiry was required. Id. at 1008-09. Con-

trasting Harmelin’s offense with the crime considered by the

Court in Helm, he observed that, while utterance of a no

account check was “one of the most passive felonies a person

could commit,” possession of a large quantity of cocaine

“threatened to cause grave harm to society” because of the

association between drugs and violent crime. Id. at 1002

(internal quotation marks omitted); accord Taylor v. Lewis,

460 F.3d 1093, 1099 (9th Cir. 2006) (upholding, on habeas

review, a sentence of 25 years to life imprisonment under Cal-

ifornia’s Three Strikes law for possession of 0.036 grams of

cocaine).

GONZALEZ v. DUNCAN 16841

In a fourth case, Ewing v. California, the Court upheld a

Three Strikes sentence of 25 years to life imprisonment for

felony grand theft of personal property in excess of $400. 538

U.S. 11, 30-31 (2003). The defendant’s prior convictions

included three counts theft, one count grand theft auto, one

count battery, four counts burglary, one count possession of

drug paraphernalia, one count unlawful possession of a fire-

arm, at least one count trespassing, and one count robbery. Id.

at 18-19. There was no majority opinion but Justice

O’Connor’s opinion, joined by Chief Justice Rehnquist and

Justice Kennedy, represents the narrowest basis for the

Court’s decision.7 Justice O’Connor weighed the gravity of

the triggering offense against the harshness of the penalty,

factoring in Ewing’s “long history of felony recidivism” in its

calculation. Id. at 29 (opinion of O’Connor, J.). The plurality

first rejected the defendant’s attempt to downplay the serious-

ness of his offense, and offered the following analysis:

Even standing alone, Ewing’s theft should not be

taken lightly. His crime was certainly not “one of the

most passive felonies a person could commit.” To

the contrary, the Supreme Court of California has

noted the “seriousness” of grand theft in the context

of proportionality review.

Id. at 28 (internal citation omitted). The plurality then con-

cluded that Ewing’s sentence of 25 years to life imprisonment

“reflect[ed] a rational legislative judgment, entitled to defer-

ence, that offenders who have committed serious or violent

felonies and who continue to commit felonies must be inca-

pacitated.” Id. at 30.

7

Justices Scalia and Thomas, concurring only in the judgment, con-

cluded that the Eighth Amendment contains no proportionality principle

at all. Id. at 31-32 (Scalia, J., concurring in the judgment); id. (Thomas,

J., concurring in the judgment). This view, however, was clearly rejected

by the plurality and by the four dissenters. Id. at 23-24 (opinion of

O’Connor, J.); id. at 32-33 (Stevens, J., dissenting).

16842 GONZALEZ v. DUNCAN

Finally, in Lockyer v. Andrade, the Court upheld on federal

habeas review a Three Strikes sentence of 25 years to life

imprisonment for two petty theft convictions arising from the

theft of $153.54 worth of videotapes. 538 U.S. 63, 77 (2003).

The defendant’s prior convictions included two counts of mis-

demeanor theft, at least three counts of residential burglary,

and two counts of transportation of marijuana. Id. at 66-67.

Applying AEDPA’s deferential standard of review, the Court

declared that “[t]he facts here fall in between the facts in

Rummel and the facts in Solem[,] . . . [a]nd while this case

resembles to some degree both Rummel and Solem, it is not

materially indistinguishable from either.” Id. at 74. The Court

thus held that the California court decision was not contrary

to clearly established Supreme Court precedent. Id. Applying

the “unreasonable application” clause, the Court first noted

the substantial uncertainty among its membership “regarding

the application of the proportionality principle to the Califor-

nia three strikes law.” Id. at 76. The majority then reiterated

that a sentence for a term of years violated the Eighth Amend-

ment only in an extraordinary case. Id. at 77. The Court held

that Andrade’s sentence did not constitute such an extraordi-

nary case and thus that the California Court of Appeal’s affir-

mance of his sentence did not constitute an unreasonable

application of clearly established law. Id.

The Supreme Court’s Eighth Amendment jurisprudence

establishes that “no penalty is per se constitutional,” and that

“successful challenges to the proportionality of particular sen-

tences [are] exceedingly rare,” Helm, 463 U.S. at 289-90

(quotation marks omitted), and “reserve[d] . . . for only the

extraordinary case.” Andrade, 538 U.S. at 77. Nevertheless,

the Court has stated, as plainly as can be expressed in words,

that “one governing principle emerges as ‘clearly established’

under § 2254(d)(1): A gross proportionality principle is appli-

cable to sentences for terms of years.” Andrade, 538 U.S. at

72.

Although the principle may be “clearly established,” the

details are not. In Andrade, the Court decried its own “lack of

GONZALEZ v. DUNCAN 16843

clarity regarding what factors may indicate gross proportion-

ality,” id., but declined to clarify the “gross disproportionali-

ty” standard, leaving us with a principle, but no explanation.

As the Court itself framed the AEDPA standard we must

apply here, “the only relevant clearly established law amena-

ble to the ‘contrary to’ or ‘unreasonable application of’ frame-

work is the gross disproportionality principle, the precise

contours of which are unclear.” Id. at 73. Although the

Andrade Court noted that it had in the past largely failed to

supply specific content to the gross disproportionality princi-

ple, the Court nonetheless did not hesitate to apply it. Id. at

76-77; see also Ewing v. California, 538 U.S. 11, 28-31

(2003) (plurality opinion) (applying the gross disproportion-

ality principle).

Following Andrade, we have applied the gross dispropor-

tionality principle in a number of cases. In Ramirez v. Castro,

for example, Ramirez shoplifted a $199 VCR and was con-

victed of one count of petty theft with a prior theft-related

conviction, an offense punishable as a felony under California

law. 365 F.3d 755, 756 (9th Cir. 2004). Having been previ-

ously convicted of two nonviolent shoplifting offenses,

Ramirez was sentenced to 25 years to life imprisonment under

California’s Three Strikes law. We first found that Ramirez’s

sentence was “harsh . . . beyond any dispute” and not “justi-

fied by the gravity of his most recent offense and criminal his-

tory.” Id. at 767-68. Finding that “this is the extremely rare

case that gives rise to an inference of gross disproportionali-

ty,” we then conducted an intrajurisdictional and interjurisdic-

tional “comparative analysis” of Ramirez’s sentence. Id. at

770-73. We concluded that the state court had correctly iden-

tified the gross disproportionality principle and that the

court’s decision was thus not “contrary to” Supreme Court

precedent. Id. at 774. However, we held that Ramirez was

entitled to habeas relief because the state court had unreason-

ably applied the gross disproportionality principle to the facts

in Ramirez’s case. Id. at 774-75.

16844 GONZALEZ v. DUNCAN

As Nunes v. Ramirez-Palmer, 485 F.3d 432 (9th Cir. 2007),

illustrates, however, we have followed the Supreme Court’s

admonition that successful disproportionality challenges

should be rare. In Nunes, the petitioner was sentenced to 25

years to life imprisonment after being convicted of shoplifting

$114.40 worth of tools. Id. at 435. Unlike the petitioner in

Ramirez, however, Nunes had an “extensive felony record”

dating back almost sixty years. Id. at 440. We had little diffi-

culty concluding that Nunes was not entitled to habeas relief.

Id. at 443. In other cases, we have similarly denied habeas

relief to petitioners where the triggering offense involved a

serious crime against life or property and followed a long

criminal history. See, e.g., Taylor v. Lewis, 460 F.3d 1093,

1101 (9th Cir. 2006) (denying habeas relief to petitioner who

received 25 years to life imprisonment for possessing 0.036

grams of cocaine following a “history of recidivism, marked

by violence and the intentional taking of human life and span-

ning some 30 years”); Rios v. Garcia, 390 F.3d 1082, 1083

(9th Cir. 2004) (denying habeas relief to petitioner who

received sentence of 25 years to life imprisonment for stealing

$80 worth of watches from a department store following prior

robbery convictions).

IV

Having set forth this background, we now turn to whether

“a threshold comparison of the crime committed and the sen-

tence imposed” in this case “leads to an inference of gross

disproportionality.” Harmelin, 501 U.S. at 1005 (Kennedy, J.,

concurring in part and concurring in the judgment).

A. Inference of Gross Disproportionality

1. Gravity of the Offense

[3] We weigh the criminal offense and the resulting penalty

“in light of the harm caused or threatened to the victim or to

society, and the culpability of the offender.” Helm, 463 U.S.

GONZALEZ v. DUNCAN 16845

at 292. The statute of conviction, California Penal Code

§ 290(a)(1)(D), requires a registered sex offender to update

his registration annually within five working days of his birth-

day. Violation of that subsection “involve[s] neither violence

nor threat of violence to any person,” Helm, 463 U.S. at 296;

it is purely a regulatory offense. See People v. Barker, 34 Cal.

4th 345, 354 (2004). “[A] violation of section 290 requires

actual knowledge of the duty to register,” id. at 351, but one

may violate the statute simply by forgetting to register after

having been advised of the duty to do so. Id. at 354.

The purpose of California’s registration law is to prevent

“recidivism in sex offenders” by assuring they are “available

for police surveillance.” Wright v. Superior Court, 936 P.2d

101, 104 (Cal. 1997) (internal quotation marks and citations

omitted). Section 290(a)(1)(A)’s mandate that sex offenders

register any change of address relates directly to the state’s

interest in ensuring that it knows the whereabouts of its sex

offenders. As noted by the California Supreme Court,

“[e]nsuring offenders are readily available for police surveil-

lance depends on timely change-of-address notification.” Id.

at 105 (internal quotation marks and citation omitted). A jury,

however, acquitted Gonzalez of the charge that he violated

this requirement. Accordingly, we adopt the jury’s implicit

determination that Gonzalez was living at his registered

address throughout the relevant time period in this case.

[4] By contrast, § 290(a)(1)(D)’s annual registration

requirement, which Gonzalez was convicted of violating, is

only tangentially related to the state’s interest in ensuring that

sex offenders are available for police surveillance. Annual

registration is merely a “backup measure to ensure that

authorities have current accurate information.” People v. Car-

mony, 26 Cal. Rptr. 3d 365, 374 (Cal. Ct. App. 2005). Failure

to comply with the annual registration requirement is “the

most technical violation of the section 290 registration

requirement,” and “by itself, pose[s] no danger to society.”

16846 GONZALEZ v. DUNCAN

People v. Cluff, 105 Cal. Rptr. 2d 80, 81, 86 (Cal. Ct. App.

2001).

Indeed, we are unable to discern any actual harm resulting

from Gonzalez’s failure to comply with the annual registra-

tion requirement. Gonzalez updated his sex offender registra-

tion nine months before and three months after his February

24, 2001, birthday, and he remained at his last registered

address throughout that time period. There is nothing in the

record remotely indicating that Gonzalez’s failure to rereg-

ister the same address a third time in the same twelve month

period could have interfered with the ability of police to mon-

itor his activities.8 The record confirms that Gonzalez was in

fact “readily available for police surveillance”: Gonzalez was

arrested “fairly close” to his registered address, and the arrest-

ing officers were familiar with Gonzalez and had spoken to

him previously at that location. Id. at 86 (“Cluff was exactly

where he said he would be when he registered in 1995, and

the police were able to quickly find him.”). We conclude that

“[t]he purpose of the registration statute was not undermined

by [Gonzalez’s] failure to annually update his registration.”

Id.

In reviewing Three Strikes sentences triggered by viola-

tions of the sex offender registration law, California courts

have recognized that the distinction between a conviction for

failure to register after a change of address as required by

§ 290(a)(1)(A), and a conviction for failure to update registra-

tion annually as required by § 290(a)(1)(D), is critical. In Peo-

8

We recognize that administrative efficiency requires California to des-

ignate some benchmark, such as the registrant’s birthday, for the annual

registration requirement and that California has a legitimate interest in

criminalizing failure to comply with that regulatory requirement. Our anal-

ysis in no way calls into question the constitutional validity of

§ 290(a)(1)(D) or California’s ability to criminalize its violation. We eval-

uate the social justification for the requirement only to determine whether

the Three Strikes sentence imposed in Gonzalez’s case exceeds constitu-

tional limits.

GONZALEZ v. DUNCAN 16847

ple v. Meeks, the Court of Appeal held that imposition of a 25

years to life sentence for failure to register a change of

address and a consecutive sentence of two years imprison-

ment for failure to update registration annually did not violate

the Eighth Amendment.9 20 Cal. Rptr. 3d 445 (Cal. Ct. App.

2004). By contrast, in Carmony, the Court of Appeal held that

a sentence of 25 years to life imprisonment merely for failure

to update registration annually did violate the Eighth Amend-

ment. 26 Cal. Rptr. 3d at 365. The court analyzed the sentence

as follows:

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. In

this case the defendant did so one month prior to his

birthday and was in fact present at his registered

address when the arrest for the present violation was

made. The stated purpose of the birthday registration

requirement was (and still is) to “update” the exist-

ing registration information.

Here, there was no new information to update and

the state was aware of that fact. Accordingly, the

requirement that defendant re-register within five

days of his birthday served no stated or rational pur-

pose of the registration law and posed no danger or

harm to anyone.

9

We note that for purposes of sentencing, the trial court in Meeks struck

the defendant’s prior convictions with respect to his conviction for his fail-

ure to register annually within five days of his birthday. See 20 Cal. Rptr.

3d at 448. Meeks is consistent with Cluff, which held that the trial court

abused its discretion by denying a Romero motion to strike one or more

priors in the interest of justice when sentencing the defendant for failure

to register annually within five days of his birthday. See Cluff, 105 Cal.

Rptr. 2d at 87-88.

16848 GONZALEZ v. DUNCAN

Because a 25-year recidivist sentence imposed

solely for failure to provide duplicate registration

information is grossly disproportionate to the

offense, shocks the conscience of the court and

offends notions of human dignity, it constitutes cruel

and unusual punishment under both the state and

federal Constitutions.

Carmony, 26 Cal. Rptr. 3d at 368-69 (internal citation omit-

ted). This case is not materially distinguishable from Car-

mony. Gonzalez registered nine months before and three

months after his February 24, 2001, birthday. The jury found

that he did not change addresses during that time period. The

police were well aware of Gonzalez’s location at all times and

indeed arrested him near his registered address.

[5] Although we independently evaluate federal constitu-

tional claims, in doing so we are bound by the California

courts’ interpretations of California law. See Powell v. Lam-

bert, 357 F.3d 871, 874 (9th Cir. 2004). Accordingly, we fol-

low the Court of Appeal in finding that violation of the annual

registration requirement of § 290(a)(1)(D) alone is “an

entirely passive, harmless, and technical violation of the regis-

tration law.” Carmony, 26 Cal. Rptr. 3d at 372.10

10

We note that the Carmony court’s analysis of that provision comports

with common sense, particularly as applied to the circumstances of this

case. To convict Gonzalez of violating § 290(a)(1)(D), the jury found “be-

yond a reasonable doubt that the defendant had actual knowledge of his

duty to register annually within five working days of his birthday and that

he knew what act was required to be performed.” See People v. Garcia,

25 Cal. 4th 744, 752 (2001) (“In a case like this, involving a failure to act,

we believe section 290 requires the defendant to actually know of the duty

to act.”). While violation of § 290(a)(1)(D) requires “willfulness,” or “ac-

tual knowledge of the duty to register,” id., forgetting to update the regis-

tration during the prescribed five working days after the registrant’s

birthday is not a defense. Barker, 34 Cal. 4th at 350 (“forgetting the man-

datory registration requirement of section 290 is simply not a legitimate

defense to the charge of willfully failing to register”). As a result, it is pos-

GONZALEZ v. DUNCAN 16849

2. Severity of the Penalty

[6] Gonzalez’s sentence of 28 years to life is “harsh . . .

beyond any dispute.” Ramirez, 365 F.3d at 767. The indeter-

minate life sentence he received is the third most severe pen-

alty available under California law, exceeded in severity only

by death and life imprisonment without the possibility of

parole. See id. Under the Three Strikes law, Gonzales must

serve a minimum of 28 years before he is eligible for parole.

See Carmony, 26 Cal. Rptr. 3d at 374. In contrast, a defendant

who, without prior strikes, violates § 290(a)(1)(D) by failing

to update his registration annually may only receive a prison

term of between sixteen months and three years. CAL. PENAL

CODE § 290(g)(2). Gonzalez’s minimum sentence is therefore

21 times greater than the statutory minimum and more than

nine times greater than the statutory maximum.11

[7] In comparison to the passive, harmless, and technical

violation that triggered Gonzalez’s sentence, “the severe pen-

alty imposed on [Gonzalez] appears disproportionate by any

measure.” Cluff, 105 Cal. Rptr. 2d at 87. We recognize, how-

ever, that California has a valid “public-safety interest in inca-

pacitating and deterring recidivist felons.” Ewing, 538 U.S. at

29 (opinion of O’Connor, J.); see also People v. Murphy, 19

P.3d 1129, 1142 (Cal. 2001) (stating that the purpose of the

Three Strikes law is “to punish recidivism”). Thus, we must

consider the defendant’s criminal history when weighing the

sible that Gonzalez violated § 290(a)(1)(D) through ordinary negligence

by forgetting to register during the mandated five working day period.

Because the record suggests that Gonzalez made a good faith effort to

comply with the registration law, we find that little or no moral culpability

attaches to his violation of § 290(a)(1)(D).

11

Gonzalez’s sentence is also a high multiple of the plea offers he

received. See Reyes v. Brown, 399 F.3d 964, 969 n.9 (9th Cir. 2005) (hold-

ing that plea offers are relevant to determining whether a Three Strikes

sentence is grossly disproportionate to the triggering offense).

16850 GONZALEZ v. DUNCAN

severity of the penalty. See Ewing, 538 U.S. at 29 (opinion of

O’Connor, J.).

Gonzalez’s criminal history is extensive, including convic-

tions for possession of a controlled substance and auto theft

in 1988, attempted forcible rape and lewd conduct with a

child under the age of fourteen in 1989, robbery in 1992, and

spousal abuse in 1999. We recognize that Gonzalez’s prior

convictions, which include both crimes of violence and sexual

predation, are very serious. We also acknowledge the state’s

interest in deterring recidivism. Incarceration for a minimum

of 28 years would incapacitate Gonzalez and thus prevent him

from committing additional felonies against the general popu-

lation.

However, we are unable to discern any rational relationship

between Gonzalez’s failure to update his sex offender regis-

tration annually and the probability that he will recidivate as

a violent criminal or sex offender. There is no evidence that,

as of 2001, Gonzalez was a recidivist. We agree with the Cali-

fornia Court of Appeal’s conclusion in Carmony that a sen-

tence of 25 years to life imprisonment does not “protect the

public when the current offense bears little indication [that

the defendant] has recidivist tendencies to commit offenses

that pose a risk of harm.” Carmony, 26 Cal. Rptr. 3d at 375

(emphasis added).

[8] Gonzalez’s present offense does not reveal any propen-

sity to recidivate. California certainly may be “justified in

punishing a recidivist more severely than it punishes a first

offender,” Helm, 463 U.S. at 296, where “ ‘the latest crime

. . . is considered to be an aggravated offense because [it is]

a repetitive one,’ ” Witte v. United States, 515 U.S. 389, 400

(1995) (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)).

However, what California has done here is fundamentally dif-

ferent. 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

GONZALEZ v. DUNCAN 16851

or no moral culpability attaches. Absent some connection

between Gonzalez’s past violent and sexual offenses, his pres-

ent regulatory violation, and his propensity to recidivate as a

violent or sexual offender, we cannot conclude that Califor-

nia’s interest in deterring and incapacitating recidivist offend-

ers justifies the severity of the indeterminate life sentence

imposed.

[9] In sum, we conclude that Gonzalez’s sentence raises an

inference of gross disproportionality. We thus turn to a com-

parative analysis of Gonzalez’s sentence. See Harmelin, 501

U.S. at 1005 (Kennedy, J., concurring in part and concurring

in the judgment); Helm, 463 U.S. at 291-92; Ramirez, 365

F.3d at 770.

B. Intrajurisdictional and Interjurisdictional Comparisons

[10] Comparison of Gonzalez’s sentence with those

imposed for other crimes in California and for the same crime

in other states confirms our finding of gross disproportion-

ality. See Helm, 463 U.S. at 298-300. Gonzalez’s indetermi-

nate sentence of 28 years to life is substantially more severe

than penalties California imposes for far more serious crimes.

For example, second degree murder is punishable by 15 years

to life, CAL. PENAL CODE §§ 189, 190(a); voluntary man-

slaughter is punishable by three, six, or eleven years, CAL.

PENAL CODE §§ 192(a), 193(a); kidnaping is punishable by

three, five, or eight years, CAL. PENAL CODE §§ 207, 208; first

degree robbery is punishable by three, six, or nine years, CAL.

PENAL CODE §§ 211, 213(a)(1)(A); and rape is punishable by

three, six, or eight years, CAL. PENAL CODE §§ 261, 264(a).

The gross disparity between Gonzalez’s sentence and those

for many serious violent crimes in California underscores that

the Three Strikes sentence imposed on Gonzalez is arbitrarily

harsh and undeniably cruel.

[11] An interjurisdictional comparison similarly militates

against California’s position. At least eleven states require a

16852 GONZALEZ v. DUNCAN

sex offender to renew registration within some statutorily

fixed period after the initial registration but do not tie the reg-

istration requirement to the offender’s birthday; Gonzalez’s

failure to update his sex offender registration within several

days of his birthday thus would not have even qualified as a

criminal offense in those states. See ARIZ. REV. STAT. ANN.

§ 13-3821(J); DEL. CODE tit. 11, § 4120(g); IDAHO CODE § 18-

8307(5)(b); IOWA CODE § 692A.4; LA. REV. STAT. ANN.

§ 15:542.1; NEB. REV. STAT. § 29-4006(2); NEV. REV. STAT.

§ 179D.480; N.J. STAT. ANN. § 2C:7-2(e); N.Y. CORRECT. LAW

§ 168-f; PA. CONS. STAT. § 9796; WIS. STAT. § 301.45(3). In at

least ten jurisdictions, a first registration offense is a misde-

meanor. ALASKA STAT. § 11.56.840(b); D.C. CODE § 22-

4015(a); IOWA CODE § 692A.7(1); ME. REV. STAT. ANN. tit. 34-

A, § 11227; MD. CODE ANN., CRIM. PROC. § 11-721; MASS.

GEN. LAWS ch. 6, § 178H(a)(1); MICH. COMP. LAWS

§§ 28.725a(10), 28.729(2); OR. REV. STAT. § 181.599; S.C.

CODE ANN. § 23-3-470(B)(1); W. VA. CODE § 15-12-8(b). In

at least ten states, sex offender registration violations are sub-

ject to separate recidivist statutes but such statutes punish

those who fail to comply with registration requirements only

for terms of imprisonment ranging from one to ten years.

ALASKA STAT. §§ 11.56.835(d), 12.55.125(e); COLO. REV.

STAT. §§ 16-22-108(1)(b), 18-3-412.5(2)(A), 18-1.3-

401(1)(a)(V)(A); 18-1.3-801(2); CONN. GEN. STAT. §§ 54-254,

53a-35a, 53a-40(c), (j); FLA. STAT. ANN. § 775.084 (1)(b) &

4(b)(3); MASS. GEN. LAWS ch. 6, § 178H, § 178F, ch. 279,

§ 25; MISS. CODE ANN. §§ 45-33-33(2); MO. ANN. STAT.

§§ 589.425(1), 558.016(3), 558.011(1)(3); N.M. STAT. §§ 29-

11A-4(L), (N), 31-18-15(A)(9), 31-18-17(B), (C); N.D. CENT.

CODE §§ 12.1-32-15(9), 12.1-32-09(2)(c); TENN. CODE ANN.

§§ 40-35-112(c)(5), 40-35-106(c), 40-35-107(c), 40-39-

204(c), 40-39-208(b). An even larger number of states appear

not to subject violators of sex offender registration require-

ments to separate recidivist statutes at all.

Several states authorize maximum recidivist sentences

greater than ten years. See ALA. CODE §§ 13A-5-9(c), 15-20-

GONZALEZ v. DUNCAN 16853

24; GA. CODE ANN. §§ 17-10-7(c), 42-1-12(n); MONT. CODE

ANN. §§ 46-23-507, 46-18-501-502; N.H. REV. STAT. ANN.

§ 651-B:9(II), 651:6(II)(A), (III)(a); OKLA. STAT. tit. 57,

§§ 584(A)(5), 587, tit. 21, § 51.1(C); R.I. GEN. LAWS §§ 11-

37.1-14, 11-37.1-10, 12-19-21(a); S.D. CODIFIED LAWS §§ 22-

24B-2, 22-7-8, 22-6-1(C) (2007). However, Texas appears to

be the only state besides California that would mandate a sen-

tence of 25 years or longer for a third felony offense, includ-

ing a violation of a sex offender registration law. See TEX.

PENAL CODE ANN. § 12.42(d). See also Ramirez, 365 F.3d at

772 (“[T]he [Three Strikes statute] is the most stringent in the

nation.”); Carmony, 26 Cal. Rptr. 3d at 376-78 (compiling

statistics and concluding that “California is the only state that

requires a life sentence with a mandatory prison term of 25

years prior to parole eligibility for a Three Strikes offender

whose violation is noncompliance with the annual registration

requirement.” (emphasis omitted)).

[12] As we expect in our federal system, sex offender regis-

tration laws vary widely among the several states and are fre-

quently changed.12 We are thus hesitant to draw any

conclusions from this survey; however, the fact that Gonza-

lez’s sentence is at the margin of what the states have deemed

an appropriate penalty for violation of sex offender registra-

tion laws supports our finding that Gonzalez’s sentence is

unusual. See Helm, 463 U.S. at 299 (“At the very least, there-

fore, it is clear that Helm could not have received such a

severe sentence in 48 of the 50 States.”).

V

[13] Weighing both the gravity of the commitment offense

and Gonzalez’s criminal history, we conclude that the sen-

12

See, e.g., Rummel, 445 U.S. at 282 (“Absent a constitutionally

imposed uniformity inimical to traditional notions of federalism, some

State will always bear the distinction of treating particular offenders more

severely than any other State.”).

16854 GONZALEZ v. DUNCAN

tence imposed of 28 years to life imprisonment is grossly dis-

proportionate to the “entirely passive, harmless, and technical

violation of the registration law,” Carmony, 26 Cal. Rptr. 3d

at 372, and hence that it violates the Eighth Amendment. This

conclusion, however, is insufficient to grant Gonzalez habeas

relief. Indeed, even the California Court of Appeal’s decision

in Carmony does not control our disposition here, although

we may look to it for its persuasive value. Under AEDPA,

Gonzalez is entitled to habeas relief from this court only if the

state court proceedings “resulted in a decision that was con-

trary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1). A state court’s

decision is an unreasonable application of clearly established

federal law if “the state court identifies the correct governing

legal principle from [Supreme Court] decisions but unreason-

ably applies that principle to the facts of the prisoner’s case.”

Williams, 529 U.S. at 413.

Here, the Court of Appeal properly stated the objective fac-

tors of Solem v. Helm that guide gross disproportionality

review. Moreover, the facts of Gonzalez’s case are not “mate-

rially indistinguishable” from any decision of the United

States Supreme Court. See Williams, 529 U.S. at 406. Thus,

we cannot conclude that the state court’s decision was con-

trary to clearly established law as determined by the Supreme

Court.

[14] The Court of Appeal failed, however, to apply these

factors reasonably to the facts of Gonzalez’s case. After ini-

tially stating the proper factors, it relied on four general prop-

ositions to affirm Gonzalez’s sentence. It found that (1) the

California Legislature has determined that sex offenders pose

a “continuing threat to society” and must therefore be readily

available for police surveillance by registering under section

290, (2) Gonzalez has a “significant criminal history” reveal-

ing that he “is a recidivist who has resisted prior efforts at

rehabilitation,” (3) Gonzalez’s sentence “is not unlike others

GONZALEZ v. DUNCAN 16855

imposed under the Three Strikes law and upheld by the

courts,” and (4) Gonzalez’s sentence “is consistent with the

nationwide pattern of substantially increasing sentences for

habitual criminals.”

[15] The state court’s reasoning is unsound. First, the Court

of Appeal vastly overstated the annual registration require-

ment’s relationship to police surveillance. The requirement

that offenders update their addresses is indeed directly related

to the need for police to be able to keep track of offenders but

Gonzalez was acquitted of failing to update his address. The

annual registration requirement set forth in § 290(a)(1)(D), by

contrast, is merely a “backup measure” to ensure that police

have current information. See Carmony, 26 Cal. Rptr. 3d at

374. A violation of § 290(a)(1)(D) “by itself, pose[s] no dan-

ger to society.” Cluff, 105 Cal. Rptr. 2d at 86. The California

courts have thus, as noted above, distinguished between viola-

tions of § 290(a)(1)(D) and § 290(a)(1)(A).

[16] Second, we agree with the California Court of Appeal

that Gonzalez’s criminal history is not insignificant. However,

Gonzalez’s criminal history alone cannot support a sentence

of 28 years to life imprisonment. The triggering offense in

this case is “remote from and bear[s] no relation to the current

offense and the current offense reveals no tendency to commit

additional offenses that pose a threat to public safety.” Car-

mony, 26 Cal. Rptr. 3d at 375. As a result, imposition of a

Three Strikes sentence in this case is not rationally related to

California’s interest in deterring recidivism.

Third and contrary to the Court of Appeal’s assertion, Gon-

zalez’s sentence appears to be unlike sentences imposed for

other violations of § 290(a)(1)(D). For example, in Cluff, the

Court of Appeal held that the trial court had abused its discre-

tion in refusing to strike prior convictions when sentencing a

defendant for failure to annually update his registration, 105

Cal. Rptr. 2d at 87-88, and in Carmony, the Court of Appeal

held that imposition of a 25 years to life sentence for failure

16856 GONZALEZ v. DUNCAN

to update registration annually constituted cruel and unusual

punishment under both the state and federal Constitutions, 26

Cal. Rptr. 3d 365. Finally, while there may well be a general

trend toward more severe penalties for recidivist offenders,

Gonzalez’s sentence appears to be more severe than the maxi-

mum penalty available for similar offenses in all but one other

state.

The state court’s analysis resulted in an unreasonable appli-

cation of the Supreme Court’s Eighth Amendment jurispru-

dence. The imposition of a 28 years to life sentence for failure

to update a sex offender registration within five working days

of the registrant’s birthday in this case is more extreme than

the imposition of a sentence of life without parole for utter-

ance of a no account check in Helm. In that case, the Supreme

Court underscored that uttering a no account check was “one

of the most passive felonies a person could commit . . .

involv[ing] neither violence nor threat of violence to any per-

son.” Helm, 463 U.S. at 296. Here, Gonzalez’s failure to

update his sex offender registration annually is a crime of

omission, which is by definition the most passive felony a

person could commit, and one that California courts have

characterized as a “harmless, and technical violation of the

registration law.” Carmony, 26 Cal. Rptr. 3d at 372. Indeed,

the California Court of Appeal specifically held that a viola-

tion of § 290(a)(1)(D) is “less serious than the offense of

uttering a no-account check committed by the defendant in

[Helm].” Id.13

Although Solem remains the only Supreme Court decision

finding a sentence grossly disproportionate to the triggering

offense, none of the other Supreme Court decisions upholding

13

In fact in Carmony, the court found that “[the defendant’s] failure to

register was completely harmless and no worse than a breach of an over-

time parking ordinance,” 26 Cal. Rptr. 3d at 374, a reference to Rummel’s

“extreme example [of] a legislature [making] overtime parking a felony

punishable by life imprisonment.” See Rummel, 445 U.S. at 274 n.11.

GONZALEZ v. DUNCAN 16857

sentences for a term of years—Rummel (false pretenses), Har-

melin (drug possession), Ewing (grand theft) and Lockyer

(petty theft)—involved regulatory offenses. Each of the prop-

erty and drug crimes involved in those cases imposed a read-

ily ascertainable social harm, in sharp contrast to the

“harmless, and technical violation” committed by Gonzalez.

In addition, in the four Supreme Court decisions upholding

sentences for a term of years, the defendant’s criminal history

was directly related to the triggering offense, evincing a clear

pattern of recidivism. In Rummel the triggering offense of

obtaining $120.75 by false pretenses was related to past con-

victions for fraudulently using a credit card and passing a

forged check. In Ewing, the triggering offense of felony grand

theft was related to prior convictions for theft, grand theft

auto, burglary, trespassing, and robbery. In Andrade, the trig-

gering offenses of two petty theft convictions were related to

prior convictions for misdemeanor theft and residential bur-

glary. Here, Gonzalez’s failure to update his sex offender reg-

istration is categorically different from his past criminal

conduct and does not demonstrate any recidivist tendency

toward violent crime or sex offenses. See Cluff, 105 Cal. Rptr.

2d at 87.

[17] The disparity between Gonzales’s technical violation

of a regulatory crime of omission and the 28 years to life sen-

tence imposed is so extreme that the state court could uphold

the constitutionality of the sentence only by reading the

“grossly disproportionate” standard out of federal law. The

court in Carmony concluded that “[i]t is beyond dispute that

a life sentence is grossly disproportionate to the [technical

failure to register].” 26 Cal. Rptr. 3d at 374. We agree. The

state court’s application of the gross disproportionality princi-

ple, clearly established by the holding of Solem v. Helm and

reaffirmed by Lockyer v. Andrade, was objectively unreason-

able.

16858 GONZALEZ v. DUNCAN

VI

[18] The judgment of the district court is REVERSED, and

we REMAND with instructions to grant the petition.

REVERSED and REMANDED.