Petition for Writ of Certiorari — Riggs v. California

CRIC/MAL

MICHAEL W. RIGGS )

EDITOR'S NOTE

Petitioner,

THE FOLLOWING PAGES WERE POOR HARD CoP

AT THE TIME OF FILMING. IF AND THEN A. ve

BETTER COPY CAN BE OBTAINED, A NEW FICHE J.W. PAIRMAN JR., WARDEN

WILL BE ISSUED. pe gh a

attorney gene

of the STATE OF CALIFORNIA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA SUPREME COURT

| IN PRO PER

MICHAEL W. RIGGS C77955

S°A.T.F. STATE PRISON

P.O. BOX 7100

as CORCORAN, CALIF. 93212

BY A PERSON IN STATE CUSTODY

Court, U.S.

FILED

MAY 2 6 1998

SUPREME COURT, U.S. OFFICE OF THE CLERK e

O5-502i1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

MiCHAEL W. RIGGS — PETITIONER Supreme Court, U.S.

(Your Name) FILED

MAY 2 6 1998

VS. OFFICE OF THE CLERK

Jiw. FAIRMAN IR., THE CAUFORN/A

ATTORNEY GENERALi RESPONDENT(S)

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner asks leave to file the attached petition for a writ of certiorari without

prepayment of costs and to proceed in forma pauperis.

[, } Petitioner has previously been granted leave to ym -ey in forma pauperis in the

following court(s): tw THE C4cF. Ccouel OF APPEALS (7M Appe llacte DisTRICT

where on Direcr Appeal Course! wad appointed witout Fees or Cos7s}

Aun CariFohuis SUPREME URTs _

se ie

[X] Petitioner has not previously been granted iaave So geyenet in forma pauperis in any

other court. (Wv/eT rHis case BY 4 FEDESEM Co Beet Bats

Petitioner's affidavit’ or deciaration in support of this motion 1s attached hereto. ©

* Lihet hactkiaZ Lye Z 2

(Signe®re)

—-

Cd. aes”

a Se Pe ea eae

a @

~

DECLARATION UNDER PENALTY OF PURJURY/APPLICATION TO PROCEED IN

FORMA PAUPERIS & attached MOTION FOR APPT. OF COUNSEL

PETITION FOR WRIT OF CRITIORARI

PRAYER

APPENDIX A ( CALIF. SUPREME COURT DENIAL")

(COURT OF APPEALS OPINION)

APPENDIX B (CDC- pinectwe/3"4 STRIKER-AS YEAR minnenurt )

PER ppl. v- STOFLE 4S CAL. 4% 4i7li99e)

“PROOF OF SERVICE avo’ VERIFICATIONS”

"(Envelope —Sealed-Signel-DATO SY oop M a5, 1998)

BERGIN V. SPAULDING 881 F.2d. 719,722(9thCir.1989)

BOARD OF PARDONS V. ALLEN 482 U.S. 368, 376-81 (1987)

CACOPERBO V. DEMOSTHENES

(9thCir.1994) 37 F.3d. 504

COKER V. GEORGIA (1977) 433 U.S. 584

DENT V. W. VIRGINIA 129 U.S. 114,123 (1989)

FAULKNER V. STATE (Alaska 1968) 445 P.2d. 815

GREGG V. GEORGIA 428 U.S. 153 (1976)

HARPER 459 U.S. AT 229

HEWITT V. HELMS 459 U.S. 460, 471-72(1983)

MC GRUDER V. PUCKETT (5th Cir.) 954 F.2d. 313 (1992)

MEACHUM V. FANO 427 U.S. 215, 223-24(76)

MILLER V. FLORIDA 450 U.S. 423

SMITH V. SUMNER 994 F.2d. 1401,1406 (9th Cir.1993)

WEAVER V. GRAHAM 450 U.S. 24

fe \

1

PAGE NO.

(i- v)

WOLFF V. MCDONELL 418 U.S. 539,558(74)

OTHER CIRCUIT CASES ARE INCLUDED AND STATE AUTHORITIES NOT LISTED

MISC: SEE-THE U.S. SUPREME COURTS VIEW AS TO WHAT CONSTITUTES

EX POST FACTO LAW [ 53 L.ED.2D. 1146

U.S. CONST. ART. I, SECT. 10, CL.1

U.S. CONST. AMENDMENTS 8th, 14th, U.S.C.A.

CALIF. PENAL CODES

667

667 (d)

667(c)to(g)

667(e)(2)(A) (ii)

1170.12(a) to (e)

1170

1170.1

1192.7

THREE STRIKES LEGISLATION:

CALIF. ASSEMBLY BILL 971(Mar.7,1994

STATS. '94,CH.12,sect.2

PROPOSITION #184 (voter initiative

Calif. Penal code "1170.12 (a)to(e)

CALIF. CONST. ART. I

IDAHO REV. STAT. sect. 19-2514

MOTION AND

DECLARATION IN SUPPORT

HEREIN MICHAEL W. RIGGS, voip ob F.

ys cay TO PROCEED

J.W. PATRMAN gR,. WARDEN; & IN FORMA PAUPERIS

(Respondent(s ))

THE CALIFORNIA ATTORNEY GENERAL:

MICHAEL W. RIGGS #C-77955 “declare that | am the petitioner

: ~ ,o saiir 410 prepay fees «t« w give

inat i pport of my mouon to proceed without being required tO pre}

shove entilied Case, ia ) SUPT t oT eT ed ain eee

Al ot | ag sah! : ry the costs Of $aic p ocecoine VU c

because of my poverty | am uNavie 10 pe)

therefor. | state inat

7)

see.

|

i that | believe | entitied to relie!

(or ain

MEDICALLY:

4” Yes No xx PE TLY TOTALLY DIS LED, IN CUSTODY )

Are you presently employed res , RMANENTL AR

’ ry Tl nr ‘ire.

' ne onth. and give the name anc acore

if the answer is yes, state the amount « f your salary or wages per me g

re] rs | ,¥ >

vour employer

1the amoun of ine Saia wn VJ _

tu c state the dule ol iast employment anc ihe anioun ve §

| cu } ‘ ij

ou f¢ j

. Sell ; 7

ON OR ABOUT 1983 (commissions about 15,000-to-20,000-a-yee }

{re nv of the following sources

Have vou received, within the past twelve months, any money trom seny 4

:? N x

Business. profession or fonmn ol selt-employmen Yes___ oO

! I lividends? Yes NoX_

Rent payment, nterest Of uivVigenas Té , ‘

? : 0 nnuities or life insurance payments ’ Ye 7 = 4

‘ DSTA ; if i : :

bits ' met tances ’ \e NO x

Ay ul Yes x

tt f if the above is ves, descrmbe each source of monev and state the ame

; He ; v¢ { inv « | ) j

' junne the past tweive montis

t

-count? i

f ny ish r do vou have money ina checking of saving account =

Oyu ow J Ce wr < f

clude any tunds in prison Jes UNIS

he 3 \ e: rate the totul value ol he wtems owned

3a" ’ deant ‘i

liwiitne ywoinary

xO eriy (CXCIVUINE oruin

L) vu own anv real estate, stocks, bonds, notes, automobiles, or other valuable proper)

Leo yO \ witli ' . bh

’ . No on

household furnishings) Yes —

eibe the property and state us approximate value

‘< a | “fT \

Mt tate OS ee Se

~ , i ne 3 - ying is e and me

Executed on _MAY 25. 1998 No. 98-

SUPREME COl ¢ OF THE UNITED STATES

October Term,

, - ,

a a a “ ,

Pe, oO er

Signaiure of

- MICHAEL W. RIGGS

MICHAEL W. RIGGS C77955 In Pro Per ICHA I .

Petitioner, )

>TIFIC ATS

ri. a

J.W. FAIRMAN JR.,WARDEN;

— and the CALIFORNIA ATTORNEY

er GENERAL: }

- e xewrse } ine wine € ’ e

SATE -State PEisoOA Respondents. )

|

PETITION FOR WRIT OF CGRTIORARI TO THE

CALIFORNIA SUPREME COURT

May 25, 1998 fy} >. yA.

| Authorized Officer of insvitunon REASON FOR GRANTING A REVIEW

Pursuant to the United States Supreme Court Rules #17, 21.1(3),

: 4k PC ©:C-3 review is suggested because the postcard denial by the California

ce 4

Supreme Court and the state courts use of the New California Three

Strikes Law is in conflict with clearly established Federal Law

and/or Federal Precedent, which is of substantial interest to

the Public and hundreds of similarly situated defendants each

month it California.

(iv)

The California Petition for Review was filed by appellate counsel JAMES L.

CROWDER-Attorney under Appointment by the California Court of Appeals to the

California Supreme Court on JAN 13, 1998, and Defendant/Petitioner filed a

Supplemental Brief in PRO PER supplementing the CONSTITUTIONAL CHALLENGES to

the "NEW" Sentencing Scheme commonly known as THREE STRIKES LAW (CAL. PENAL CODE

Sections # 667 (c) to (g), and # 1170.12 (a) to (e), which was denied by a postcard

"DENIAL" on FEB. 25th, 1998 without citation (EXHIBIT "A"), for which review by

PETITION POR WRIT OF CERTIORARI is sought. The citation of the opinion of the

court of appeals is under appeal No.E-019488. CAL. SUPREME CT. #S-067322.

JURISDICTION

Petitioner invokes jurisdicition of the Court under 28 U.S.C. 1257(3) on the

ground that his rights under the 8th, and 14th AMENDMENTS were violated and upon

the grounds that state created Statuatory law provides a LIBERTY INTEREST and

such 'PENDANT' Due Process Guarantees thereby applicable through the 14th

amendment which was violated.

The State Courts and California Supreme Courts application of the NEW

THREE STRIKES LAW (supra) is"Gontrary to and an unreasonable application

clearly established federal law and precedent" [26 U.S.C. "2254(d)] and

violates the prohibition against EX POST FACTO LAW under U.S. CONST. ART.I,

Sect.#10, Cl. #1; 8th and 14th Amendments-U.S.C.A..

THE U.S. SUPREME COURT'S VIEW AS TO WHAT CONSTITUTES

MILLER V. FLORIDA 450 U.S. 423).

2

8 QUESTION PRENTED (CONT) €

2. DOES THE MINIMUM 25 to LIFE SENTENCE FOR A PETTY THEFT OF FOOD

VIOLATE THE 8th MENDMENT PROHIBITION AGAINST CRUEL & UNUSUAL

PUNISHMENT .

V44444141

STATEMENT OF THE CASE

In a two-count amended information appellant was

charged with petty theft with a prior conviction of robbery

rct. 1, Pen. Code, § 666) and possession of a hypodermic

syringe (Ct. 2, Bus. & Prof. Code, § 4149].

The amended information alleged that appellant had suffered

three prior convictions within the meaning of Penal Code

section 667, subdivisions (c) and (e) and Penal Code section

1170.12, subdivision (c) [prior strikes}. Four prior

convictions were alleged within the meaning of Penal Code

section 667.5, subdivision (b) [prior prison terms]. (CT

61-64.)

Trial was by jury, with the trial of the prior

conviction allegations being bifurcated from the trial of

the substantive offenses. (CT 196, RT 80.) The jury

returned its verdicts finding appellant guilty of the

substantive offenses. (CT 205-206.) Trial of the prior

conviction allegations was by the court and the court found

the allegations to be true. (CT 2449A-250.)

At sentencing, an indeterminate sentence of 25

years to life was imposed for Count 1. A 90 day county jail

sentence was imposed for Count 2 to be served concurrently.

The three prior prison term enhancements were stricken. The

trial court credited appellant with 411 days for actual

(4)

‘As used herein "CT" shall denote the Clerk's

Transcript, and "RT," shall denote the Reporter's

Transcript on appeal.

2/ As of NOV. 14. 1997, the California Department of Corrections

issued a MEMO to all CLASSIFICATION COMMITTEES & PRISON

WARDENS (EXHIBIT-B) that all THIRD STRIKE DEFENDANTS-

inmates will be on ZERO CREDIT RULE per PPL. V. STOFLE

(1996) 45 Cal. App. 417, and will serve a MINIMUM of 25

years before parole board eligibility review hearing.

presentence

cond

appeal.

uct credits.

custody and with 61

(CT 325.)

Appellant thereafter fil

(CT 327.)

days of presentene

e custody

ed a timely notice of

STATEMENT OF FACTS

Ortega stepped back, then saw there was no knife in

On October 13, 1995, at approximately 5:10 p.m., ;

appellant's hand. Appellant started running and Ortega

at an Albertsons Store located in Banning an employee, Anne ’

again gave chase. Just before Ortega and another employee

Lopez, was working in one of the aisles. She noticed

caught appellant, he threw the bottle of vitamins onto the

appellant standing in the vitamin section. She saw

sai ’ ground. (RT 185-195.)

appellant take a bottle from an “Energy Pill” display and

After a struggle, appellant was detained and brought

place it in his left front jacket pocket. The employee ;

back into the store. Banning Police Officers responded to

suspected that appellant was going to steal the bottle of

the store to take custody of appellant. They searched him

vitamins, so she continued to watch him. She followed him : ;

and found a hypodermic syringe hidden in his left sock. (RT

as he walked away from the aisle towards the check stands,

195-196, 234-239.)

past the check stand entrances, around to the video rental

racks and past the photo department and then out the store

exit without paying or attempting to pay for the vitamins.

(RT 123-129.)

Lopez notified Randy Evans, another employee, and

the two of them followed appellant outside the store. When

they caught up to appellant, Lopez said, “Excuse me, can we

have the pills?" Appellant did not respond and kept

walking. Lopez asked him to return the pills several times.

After the third request, appellant turned around, looked at

her and then turned away and began running. (RT 129-130.)

By this time several other store employees had

come outside. Several of the male employees chased

appellant across the parking lot. At one point the

appellant stopped and turned to face an employee, Carl

Ortega. Appellant told Ortega that he had a knife, and

swung his right hand at Ortega as if holding a knife.

c

SIMI a a i Sh a a a

s ARGUMENT

I.

THE TRIAL COURT ERRED WHEN APPLYING THE 1994 “THREE STRIKES”

LAW TO APPELLANT'S PRE-1994 PRIORS AND TO APPELLANT'S SENTENCE

OF 25 TO LIFE BECAUSE THAT LAW PASSED BY VOTERS, BY IT'S EXPRESS

*7)TERMS & ORDINARY MEANING, DOES NOT & CANNOT APPLY TO PRIOR

STRIKES WHICH OCCURRED BEFORE THE ENACTMENT OF THE THREE STRIKES

LAW: AND THE COURTS USE OF PRE-1994 PRIORS IN CONTRAVENTION TO

THIS “EXPRESS WORDING" OF THE STATUTE CREATES A ‘PENDANT’ 14th

AMENDMENT DUE PROCESS VIOLATION, AND VIOLATES THE PROHIBITION

AGAINST “EX-POST FACTO LAW" (U.S. CONT.ART.I, §10, Cl.#l):

The Trial court applied the 1994 voter-approved "THREE STRIKES" Law"

TO Appellant’ PRE-1994 Priors out of a SINGLE Case (# 3577867 ) TO

Sentence Appellant to a minimum term of "25 to LIFE" sentence. .(Supra~

Py-4,2¢.2, (P.C.§ 667, subd.(e)(2)(A)(ii).) Appellant's case ostensibly

fell under the three strikes law because he had suffered two SERIOUS

PRIOR felony conviction in 1992.(see:Ca.Penal Code §§ 667(d)(1) and

§ 1192.7(c)(19).)

Section 667, subd.(d) governs whether a prior conviction is a strike

”

for the purposes of the Three Strikes Law. That subdivision provide

in relevant part:

"Notwithstanding any other law and for the purposes of

subdivisions (b) to (i), inclusive, a prior conviction

of a felony shall be defined as:

(1)-Any offense defined in subdivision (c) of Section

§ 667.5 as a violent felony or any offense defined in

subdivision (c) of Section § 1192.7 as a serious felony in

this state. The determination of whether a prior conviction

is a prior felony conviction for purposes of section (b) to

(i) , inclusive, shall be made upon the date of that

prior conviction and is not affected by the sentence ~

imposed unless the sentence automatically, upon the initial

sentencing, converts to a misdemeanor..."(Emphasis added).

FN: bad Appellant is aware that on JUNE 30, 1995,

issued~“it's decision in Ppl. v. Sipe (1995) 36 Cal.App. 4th 468, rejecting this

arguement, as well as other challenges raised to the sentencing scheme known as

Three Strikes Law. (also:Ppl. v. Green (1995) 36 Cal.App. 4th 280). Nevertheless,

since the VOTERS approved the EXPRESS WORDING this brings a PENDANT 14th-

Amendment DUE PROCESS Guarantee (USCA), and Federal EX POST FACTO questions into

these considerations for further review, both State and Federal due to the

the Court of Appeal

Ss, state of the new law.

*4 In the interests of brevity appellant will use the term "three Strikes

Law" when reffering to Ca.Assembly Bill #971 which changed the way sentences were

computed for felons with one or two prior convictions for violent or serious

felonies. effective on March 7, 1994.(Stats.'94,Ch. 12,§ 2.). It is codified in...

8

Appellant submits that under the plain-common sense-ordinary &

express wording and meaning of language from Penal Code § 667(d),

emphasized above, a prior conviction does not qualify as a strike

for purposes of invoking the three strikes law unless, on the date

the prior conviction is entered, the judge or the jury makes a

determination that the conviction will qualify as a strike, thus

giving defendant adequate notice. The three strikes law thus cannot

apply to appellant in contravention to this EXPRESS WORDING or *pendan

Federal Due Process (14th Amendment) and the U.S. Constitutions

prohibition against EX-POST-FACTO law is violated:(U.S.CONST. ART.I,

§ 10, Cl.#1) within the meaning of WEAVER V. GRAHAM 450 U.S. 24,

SUPREME COURTS view

1146).)

and MILLER V. FLORIDA 450 U.S. 423. (THE U.S.

2D.

as to what constitutes EX POST FACTO law/*see: 53 L.Ed.

25

Appellant's two-prior strikes predated MARCH 7, 1994, and no

determination was made in this #989 Case No. A-577867, that these

convictions were "A prior’ felony conviction for purposes of

subdivions (b) to cad.* (P.C. & 667(d)(1).)-

It is axiomatic that a court's primary task when construing @

statute is to determine the lawmakers intent,(Ppl. v.- Jones( 1993)

5 Cal. 4th 1142,1146), or the common sense meaning when approved

by voter initiative. To determine that intent, courts turn first

to the statutes words themselves. (Ibid.) Significance should be

attributed to every phrase of a statute, and a construction making

o

-~--~er oo

on beseta Code §667. With the enactment of Ca. voter initiative PROP. #184 in

the November, 1994 election, provisions identical to the three strikes law now

are found in a new statutory section, namely ee : "Sg (Compare

tion § 667(c) to (g) with section § 1170.12(a) to (e).-)-

ws *s Appellant will use the term "PRIOR STRIKES” when referring to those prior

convictions which trigger the application of the three strikes law.

g

|

269 Cal. App. 2d.

staute "only when

A) BOTH

Claim is whether

some words surplusage (tS to be avoided.(Ppl. ¥.- Woodhead (1987)

43 Cal.3d. 1002,1010.). If the

there is no need for construction of a statute. (Pp

supra, 5 Cal. 4th at p. 1146) "Clear statutory langu

interpreted than pure water needs to be strained,’

the legislation as a whole or led to absurd results." (People v. Bellici (1979)

24 Cal. 3d. 879, 884.).

EXPRESS STATUATORY LANGUAGE MAY

5 CREATE A "P -

DUE PROCESS GUARANTEE AND LIBERTY <n TO aaa ee

The DUE PROCESS Clauses (U.S. CONST. AMENDS.V, XIV) are designed

— ‘ i ?

protect the individual against arbitrary government action.( WOLFF

¥. MCDONELL 418 U.S. 539,

129 U.S. 114, 123 (1889). Tne threshhold question in an

MEACHUM V. FANO 427 U.S. 215, 223-24 (1976). LIBERTY INTERESTS may

language is clear and unambiguous

—

v. Jones,

age no more needs to be

' (Holder v. Superior Court (1969)

314,317.) Courts decline to follow the plain meaning of a

it would inevitably have frustrated the manifest purpose of

THE STATE AND FEDERAL LAW HAS HELD THAT A STATE's

558 (1974)(citing: Dent v. West Virginia

y Due Process

a protected Liberty or Property Interest is involved

(1987),HEWITT V,

be created by 4 statute,( BOARD OF PARDONS v.ALLEN 482 U.S. 369 376-81

SMITH V. SUMNER 994 F.2d. 1401,1406 (9th Cir.1993), regualation,

HEWITT-supra), In determining a Pendant Due Process Claim the

Courts traditionally require that the st

substantive predicates and look to the EXPRESS-MANDATORY LANGUAGE

HELMS 459 U.S. 460, 471-72 (1983)), a court order,

atute or regualation contain

1989), ZARNES V.

governing the outcome (BERGIN V. SPAULDING 881 F,2D. 719,722 (9th

RHODES 64 F.3d. 285, 292. Once an INTEREST has

been classified as protected, a court must balance

interests at stake, ...the governmental interests involved, and

"the private

eee __—S_

ie the value of procedural requirements in determining what

2|| process is due under the Fourteenth necndnent "(HARPER 49° KF

3\|at 229 (quoting HEWITT 459 y.s. AT _473)-

4 B). STATES EXPRESS LANGUAGE & GOVERNMENTAL INTERESTS

5 Appellant submits that the express language of the relevant

+6 That language provides:

6||prtion of subdivision (d) is plain

7\| “The determination of whether a prior conviction is 4 prior conviction for pur pose

10

g\| of subdivisions fb) to Gi inclusive, shall be made upon the date of that prior

9 conviction..-"- When appellant was convicted of two serious felonies

10|| in 1989 out of a single case, (AS77867) » subdivisions (b) to (i)

11ij|| of § 667 had not yet been enacted. It was impossible for the jury

12||or the court to make 4 determination that the convictions would

13||be a “SERIOUS” oF “VIOLENT” prior conviction(s) for the purposes

14|\|of being STRIKES within the meaning of subdivisions (b) to (i) of

15|| §667, since the three strikes law was enacted S- years later(1994). ‘

16 1) THE THREE STRIKES LAW OPERATES PROSPECTIVELY

NOT RETROACTIVELY:

17

18 When 4 prosecutor seeks to use 4 California conviction for

19|\\an offense listed in Penal Code § 667.5(c) (violent felonies) oF

——

20\\in §" 1492.7(serious felonies) a5 4 prior, there must have been a

——aeo7~r

21 determination that it was 4 prior for purposes of the “three strikes”

22\\measure on the date the conviction occured. Givins the language

23 any other meaning requires us to rewrite the words used by the

24 legislature and the voter initiative. The first principle of statuator}

25 construction is that words must be given their plain, ordinary meaning

26 [ See: People y. Morris (1988) 46 Cal. 3d-1,15)- As the California

o7\|recently stated in DELANEY V. SUPERIOR couRT[(1990) 50 Cal. 34.785, 804)

* 6) the tera "SUBDIVISION (a)" refers to cubdivision(d) of P.C. S88

KA

"Trt is bedrock law that if the Lawmaker gives us an express

definition, we must take it as we find it... [ DELANEY-Supra].

And further JUSTICE EDWARD PANELLI recently made theis point

quite tellingly: "In my view, the majority 1s not warranted in

invoking the maxim of ‘absurdity’ to justify ignoring explicit

statutory language, even if it does so to achieve what it

percieves to be a superior result. Instead, the unambiguous

statutory language chosen by the legislature should be given

effect".[People v. Broussard (1993) 5 Cal.4th 1067,1080-

(PANELLI J.-Dissenting) }. *11

It might be argued that the above quoted language from subd.(d),

means that the court sentencing the defendant for the post-March

7th, 1994 , offense shall determine whether a prior is a strike

by analyzing the state of affairs on the date of the prior conviction.

That, however, is not what subdivision (d) says. Subdivision (d)

says that the ‘determination’ of whether a prior qualifies ‘shall

be made upon the date of the prior conviction® It does not state

that the determination shall be made during the proceedings in a

later case by looking back in time to the state of affairs on the

date of the prior conviction. The legislature obviously assumed

that other recidevist enchancements of one year and five year priors

under then existing P.C.§ 667(a) and (b) would be used and "CALLING"

the strikes as they happened would be a deterence by giving defendant

notice.

(LAP LA 4

These questions may arise as to why the Legislature wanted

a finding as to the qualifying nature of the conviction at the time

the conviction occurred. There are three obvious purposes for such

intent of statuatory construction.

The first would be to obviate the extensive litigation of priors,

ahi 9 fr

4 ) See~"EXH.-© arguement by ; ., entitled:

"THREE TCALLED' STRIKES AND YOU'RE OUT"; Gerald F. Uelman

m46 is CHAIR of the Executive Committee of the Criminal Law section

om an4, of’ the State Bar of California; Dean of Santa Clara University

CU" eX School of Law; has served as PRESIDENT of both Calif. Academy

con of appellate Lawyers and Calif. attorneys for Crim. Justice.

12

did not contain a mandatory requirement that the qualif ing nature of the

prior be determined at the date of conviction. Not only has this litugation

been extensive, it even has led to contrary opinions by the Supreme Court in

two cases decided within 16 months of each other (See People v. Guerrero

(1988) 44 Cal.3d 343, overruling People v. Alfaro (1986) 42 Cal.3d 627.)

Subdivision (d) wisely obviates a great deal of similar lingation Indeed.

subdivision (d), as construed by appellant. .\ o1ds the precise problem

inherent in the Guerrero/ Alfaro situation. 1 ¢.. how to determine whether a

prior conviction entered betore the enactment Ol 4 priors statute comes

within the provisions of that later-enacted statute

A second purpose would be to obviate Challenges to convichions that

occurred prior to March 7. 19940 on the ground that the detendant would

have used different tactics and may well have ontuimed dilferent results 1!

he knew the case might result in a strike To illustrate. take 2 mulu-count

information filed against a first ume otfender in 1989 charging some

offenses which are violent felonies under section om7 5. suddisision (c) and

some which are not. In plea negotiations there Was No strong incentive to

plead guilty to a nonviolent felony rather than J \ wilent one. This ts

because no one knew that nine vears in the future 2 comsichion for 4 violent

—

*7) Because the Court is aware [rom its own case load of the large number o!

cases raising issues about whether priors qualify lor enhancement, appellant will

not include the serpentine string cite which supports his statement He will,

however, favor the Court mith a chronological list of some Supreme Court cases

which discuss retrospective determinations of the status of a pnor convicuon.

(People v. Jackson (1985) 37 Cal.3d 826, Peopis Thomas (1986) 41 Cal.3d

837; People v. Equare (1986) 42 Cal.3d 450, People v Paper (1986) 42 Cal.3d

471; People v. Alfaro, supra. 42 Cal.3d 627; People v. Calio (1986) 42 Cal.3d

639; People v. Guerrero. supra. +4 Cal 3d 343, People v. Miwers (1993) 5 Cal.4th

1193.)

3

OOOO EE, <<<

” 8 igs ®

felony would be 2 sirke However. similarl\ situated first ume offenders

206 Cal.App.3d 546, 549-550.) In 199! the Legislature effectively

. on er March 7, 1994, can take the

facing charges from crimes committed after March a abrogated this case law by enacting section 969f That section provides that

; —— . n neg@ouating a lea, "There is no

three strikes law into consideration when negotiating a p when the defendant has commined a serious felony. the accusatory pleading

| res ne similarly situated first-tume F | |

SON Rae et ee eee ce “may” charge it as such. Section 969f has the effect of avoiding later

C ¢ otf fr negouated a plea bargain eee

offenders differently simply because one offender neg P s litigation over the serious nature of a prior by allowing the prosecutor to

0 -Ons ses of the plea and the other offender | a

aware of the harsh possible consequences P charge a pending crime as a serious prior Section 667, subdivision (d).

srt otentialls harsh consequences The lirgrage

had no knowledge of these potentially hars = takes the matter one step further by requiring (rather than simply allowing)

of subdivision id) here in issue has the effect of giving cgual treatment to

a determination about an offense’s nature ut the time it ts tried. thus

all offenders obviating the need tor any tuture litigation on the issue

IMOse O p lanvuaue of subdivision td) ts that it | |

eT tr ee Thus this court need not tear that it will nwist the Legislature's intent

, wo be deterred by the stecter of enormously increased “ag Se . |

allows defendants oo if & Construes subdivision id) lnerall, The liera! lanvuage of subdivision

“es [0 w Offenses While ullowing he stale UMe to build new . .

sentences for new > i - (d) reflects a considered decision that a Contenipurancous Jeterminauon vol u

erate iNree strike ullenders and to prepare tinancially tor ae } | |

prisons to incarcerate . ullene ii cONviction’s status ts better than 4 retrospectis ¢ ume and ts less likely to lead

the substanual increase in Costs inherent in the longer Urree strike sentences

to later ligation. The Legisiature meant precise!y what it said in

same | 7 ubdis tsion td) ts aot the first ume the ,

It us significant to note that subdis tsion td subdivision (d)

eursiature has addressed v question related to the Contemporancous

While 1 might be argued that while the plain language of subdivision

. e nature Oluc Vrcuion for PuTPrwsds wo! idler Use ds J

Ne en ee ch (d) requires determination of an ollenmse's nature ul the ume ot CUNVICIION.

ase | tne - Pfe- ty sifikes Sersion of seclion OM |

prior. Case law interpreting the pre-thre - that plain language should mot be followed because u inevitably frustrates

whether a conviction qualitied as |

consistently held that the determination of whe " . the manifest purpose of the levisiation. (Sez Pgople v Bellics. supra, 24

| ume of conviction but instead ; : :

ae ay eae ? Cal.3d at p. 884.) The purpose of the three strikes law ts to “ensure longer

was to be made at a later ume when the conviction was actualls alleged as a

prior. (People v. Sanchez (1991!) 230 Cal.App.s¢ 768. 772-773, People v

Bovaijian (1991) 228 Cal.App.3d 771, 774-775, People + Ybarra (1988)

prison sentences and greater punishment tor those who commit a felony and

have been previously convicted of serious and or violent telony offenses.”

(Section 667, subd. (b).) However, applying subdivision (d) in accordance

with its plain language does not "inevitably" (People v. Bellici, supra, 24

*8) There are some restnctions on plea bargaimung when a detendant has Cal.3d at p. 884) frustrate this purpose. The plain language of subdivision

| ly dns |

kes (see section 667, subd. (g)) These restmctuons do not app f aw to people like appellant. As lone as

4 a eee facing charges for offenses which can result in a stnke. (d) delays application of the | Pe Sas pa g as the

preconditions of subdivision (d) have been met. longer punishment is

it

\s

It is worth noting the supreme court's obser ation that “courts must

«9

insured

follow the language used and give to it its plain meaning, whatever may be

thought of the wisdom, expediency. or policy of the act. even if it appears

probable that a different object was in the mind of the legislature.” (People

v. Weiders (1985) 39 Cal. 3d $36. 843. cation and internal quotation marks

omitted.) The language in subdis tston ¢d) not only ts plaim. ut also ts based

on sound considerations of polics and tanmess and dues not messtabls

trustrate the purpuse of the three strikes law Accordimg!s. that plain

language must be followed

To summarize, subdis sion id) expressi\ provides that the Provisions

of section 607. subdivisions (bi to cr), apply onl. where there has been a

determination on the date of the prior coms rection that the coms rection

qualities for use in subdivisions i br toc The record » des or of anv

evidence showing that determinations were made in. (F399. withe

effect that the convictions would be tor purposes of subdir tssons (hb) to (i)

of section 6607 According! . the trial Coun erred shen ot sentenced

appellant under the provisions of the threes strtkes law and the matter

should be remanded tor resentencing The new sentencing should be

pursuant to sections 1170 and 1170 |. and not under the three strikes law

_—_— ——_—--

2). FOLLOWING THE EXPRESS STATUATORY LANGUAGE

PROVIDES NOTICE AND THUS WOULD COMPLY

WITH FUNDAMENTAL FEDERAL DUE PROCESS

It is a fundamental precept of due process of law that an accused

must have prior notice of the acts constituting a cnminal violation. A

recidivist must be given specific notice of the manner in which committing

a new felony would result in a Significant Loss of Liberty-supara.

° 9)*iagain the legislature assumed that under then existing law effective on the

dates of the priors making 1 year and 5 year enhancements under P.C. 667 & 667.5

would continue to be used in 4 recideivist enhancement sentenc

eey Ie) ing

17

—- 17

C). THE CALIFORNIA THREE STRIKES LAW AS APPLIED TO

DEFENDANTS SENTENCE OF"25 TO LIFE” AMOUNTS TO A

"SIGNIFICANT LIBERTY INTEREST OR LOSS" FOR PRE-

THREE STRIKES LAW PRIORS AND IT CONSTITUTES A VIOLATION

THE PROHIBITION AGAINST EX-POST-FACTO LAWS UNDER THE

U.S. CONST. ART. I, Sect.#10, CL. #1 WITHIN THE MEANING

OF WEAVER V. GRAHAM 450 U.S. 24 and MILLER V. FLORIDA

(87) 482 U.S. 423, by THE U.S. SUPREME COURTS VIEW AS

TO WHAT CONSTITUTES EX-POST-FACTO LAW[53 L.ED.2D.1146]:

u + wa ND e&

3 THE EXPRESS WORDING also supports the determination that the

Palifornia Legislature realized that this statute wa’: beyond being |

normal recidivist statute where a defendant might recieve a I

ear enhancement for prior prison terms(PC §667 (2) and § 1192.7(c),

<0 f 5 years enhancement (P.C.§667(a)(1). It not merely a DOUBLE or

RIPLE the normal sentence for the crime in this case for recidivisa.

Bppellants sentence is aS to LIFE, a “SIGNIFICANT LIBERTY INTEREST

LS R LOSS" only topped by the DEATH PENALTY. Appellant submits that

|

l4+ this falls within the U.S. SUPREME COURT'S VIEW as to what constitutes

15 || px-POST-FACTO Law (53 L.Ed.2d.1146] and within the meaning of

18 the "WEAVER"-supra standard and "“MILLER"-supra.

The California Legislatures EXPRESS wording shows an intent

a knwlege that this statute was not intended to violate the

prohibition against Ex-Post-Facto Law, because it constitutes

20\\just such a maximum and significant"LIBERTY INTEREST OR LOSS? |

21 The-legislature took into account this possible litigation explosion

22 \\and sought to eliminate the EX POST FACTO challenge by stating

23 \\EXPRESSLY in P.C.§667(d):"The determination of whether a prior

conviction is a prior felony conviction for purposes of (A STRIKE)

|

24

25 lisection (b) to (i),...shall be made upon the date of that conviction

26 __ An Ex-Post-Facto Law is one if applied retroactively would

27

cause a“SIGNIFICANT LIBERTY INTEREST OR LOSS".

3

4

| ® ©

Defendants New case involved TWO COUNTS, and with his TWO (1939)

5 '

SERIOUS PRIORS out of a single case, he was giver a

(1994) THREE STRIKES LAW "25 to LIFE" sent2>-* FOR a PETTY THEFT of

'

food, which could be a misdameanor carrying less than a year in County Jail,

or 16 months, 2 , or 3 years if charged as a felony.

- |}

3

3

9

-

Ls

13

L? |]

fherefore, appellant asserts that this is an EX POST FACTO

|

}

LAW being used without NOTICE retroactively, contrary to legislative

intent and express wording, on priors before the enactment of the

sg

(*Pg. Yand 3-footnote#=-SUPRA) mC

1994 Three Strikes Law

———

involves a "Significant Loss of Liberty” only less than the Death

Peanlty, and therefore wrongfully applied to this appellants case.

Therefore, the application of this law to defendant/appellant

‘violates the prohibition against EX POST FACTO LAW under the U.S.

CONSTITUTION ARTICLE 1,8 10, Clause #l and that the 14th Amendment

is violated as alleged herein.

lof the Statute amounts to 4 "Pendant" claim of a violation under

tj

19 |the FOURTEENTH AMENDMENT'S DUE PROCESS GUARANTEES.

Applying this law retroactively contrary to the EXPRESS wording

jpniibilii ee e e

ARGUMENT

Ir.

APPELLANT'S LIFE SENTENCE FOR THE OFFENSE OF PETTY

THEFT CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT UNDER

BOTH THE CALIFORNIA AND FEDERAL CONSTITUTIONS

"‘The State, even as it punishes, must treat its

members with respect for their intrinsic worth as human

beings." (Citation.] Punishment which is so excessive as

to transgress those limits and deny that worth cannot be

tolerated." (In re Lynch (1972) 8 Cal.3d 410, 424.) A

sentence that is "grossly disproportionate" to the offense

for which it is imposed, violates both the California and

United States constitutional prohibitions against cruel and

unusual punishment. (People v. Dillon (1983) 34 Cal.3d 441,

478; Gregg v. Georgia (1976) 428 U.S. 153, 173; Coker v.

Georgia (1977) 433 U.S. 584; U.S. Const., 8th Amend.; Cal.

Const., art. I, Pen. Code, § 17.)

In Lynch, this Court set forth three techniques

for evaluating a punishment to determine whether it is

disproportionate. The court must (1) examine the nature of

oi The federal circuit courts continue to apply a gross

disproportionality test in determining Eighth Amendment

challenges to punishments imposed for non-capital offenses.

(See, e.g., Cacoperdo v. Demosthenes (9th Cir. 1994) 37 F.3d

504, 507-508; United States v. Munoz (ist Cir. 1994) 36 F.3d

1229, 1239; United States v. Cupa-Guilen (9th Cir. 1994) 34

F.3d 86, 864-865; United States v. Lanier (6th Cir. 1994) 33

F.3d 639, 665; United States v. Frieberger (8th Cir. 1994)

28 F.3d 916, 920; United States v. Fisher (5th Cir. 1994) 22

F.3d 574, 579-580; United States v. Angulo-Lopez (10th Cir.

1993) 7 F.3d 1506, 1510; United States v. Sarbello (3d Cir.

1993) 985 F.2d 716, 724; McGruder v. Puckett (5th Cir. 1992)

954 F.2d 313, 316-317.)

4

the offense and/or the offender, (2) compare the challenged

penalty with punishment prescribed in California for other,

more-serious offenses, and (3) compare the challenged

the offense and/or the offender, with particular regard to

penalty with punishments prescribed for the same offense in

the degree of danger both present to society.'" (Id., at p.

other jurisdictions. (In re Lynch, supra, 8 Cal.3d at p.

479, emphasis added, quoting In re Lynch, supra, 8 Cal.3d at

425-427.)

p. 425.)

For a holding of disproportionality, the court

With regard to the "nature of the offense," courts

need not find the punishment disproportionate in all three

are to consider "the totality of the circumstances

respects. Rather, a finding of disproportionality based

surrounding the commission of the offense in the case at

upon any of the Lynch criteria will suffice. (People v.

bar, including such factors as its motive, the way it was

Dillon, supra, 34 Cal.3d 441, 487 fn. 38; In re Rodriguez

committed, the extent of the defendant's involvement, and

(1975) 14 Cal.3d 639, 656.) This does not mean, however,

the consequences of his act." (People v. Dillon, supra, 34

that each of the techniques must be considered in total

Cal.3d at p. 479.) As for the “nature of the offender," the

isolation from the others. When the Court stated, in Lynch,

appropriate inquiry is “whether the punishment is grossly

that a statute's disparity with punishments in other states

disproportionate to defendant's individual culpability as

"is a further measure of its excessiveness" (In re Lynch,

shown by such factors as his age, prior criminality,

supra, 8 Cal.3d at p. 427, emphasis added), the suggestion

personal characteristics, and state of mind." (Ibid.)

is that the measure of disproportionality found in applying

Proper application ef this analysis to the present

the several techniques would be cumulative.

case reveals that appellant's life sentence is “grossly

disproportionate" both to the severity of his crime, and to

A. The penalty is disproportionate as applied to

the degree of danger he poses to society. In the present

this offense and this offender.

case, appellant was convicted of petty theft. Yet,

In People v. Dillon, supra, 34 Cal.3d 441, this

appellant has been subjected to a life sentence for this

Court found that, under the facts of its case, strict

offense. Such an offense is neither a violent nor a serious

application of the felony~-murder rule violated the

felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).)

prohibition against cruel and unusual punishment. In

Petty theft is not among those offenses considered

reaching this result, the Court looked to “‘the nature of

most dangerous to society. It is neither serious nor

20 violent. An examination of the "totality of the

circumstances surrounding the commission of the offense"

also underscores the nonserious, asonviolent nature of the

of fense-

's prior felony convictions

while appellant

t some increased

punishment for the current

arguably —_

the extreme P

ea cannot be

unishment impos

riminal justice.

offense,

ple system of ©

under any cred

425; Faulkner V-

rationalized

: Cal.3d at P-

In re Lynch,

ska 1968) 445 P-

(cf. supré,

2a 815, 818-819 (holding

state (Ala

unconstitutionally aisproportionate a 36-year sentence

-old man with 4 prior criminal record

on a 46-year

pree of passin

imposed

g bad checks in one single

for a single ©

day)-)

+11)

B. The_ ed

penalty i

| 3

i | disproportionate wh

escribed in Californi paanaecins

nia for m

ore

serious

offenses.

subd. (b),

(See §§

667.5,

1192.7

-7, su

bd. (c).) Under the Th

ree

Strikes Law

» appell

ant is not eligible fo

r parole until he

2 -8 y , . * 80% .?) 6 years.

(c) (5).-)

(§ 667, subd

By

’

u

sentence of

26 yea

years to life (§§ 190

, Subd. (a)

, and 1202

2,

subd. (b))

, and is eligi

igible for parole in 17

years 4m

onths.

(In re Oluw

a

(1989) 207 Cal.App.3a

; ; 439, 444

-447.)

committed a

petty th

eft. There is no doubt

that th

e answer

1

deadly wea

pon is eligi

igible for parole for th

at offens

e three

years and 10

months

sooner than appellant

will be f

or this

offense U

. nder no j i

principled or defensibl

ible analysi

ysis can

appellant be vi

view

ed as having posed a

greater da

nger to

’

comparison of

the c

hallenged penalty with th

ose prescri

ibed

in the

same jurisdicti

isdiction for more

-serious i

crimes

NT: COC ha 2 TUs

N a § TusT enact

> STrrixe hevumademes phan, CREDIT EReN

& ING STR

FOR

OF A TO P VN. 5ST

as LIFE SENTENCE ER S >

it SERVE MINimMunmh 2S

OF on

T6)4S Ca:

. 2

is

particularly striking when a more serious crime is punished

less severely than the offense in question, ... ."

(People v. Dillon, supra, 34 Cal.3d at p. 487, fn. 38

(emphasis omitted]; In re Foss (1974) 10 Cal.3d 910, 925-

926.)

Application of the Three Strikes Law to persons

convicted of relatively minor felonies only widens the

disparity. Some trial courts have declined to apply the

Three Strikes Law at all to third strikers convicted of such

offenses and other felonies which have the option of being

treated as misdemeanors under the provisions of section 17.

(See, e.g., People v. Trausch (1995) 36 Cal.App.4th 1239,

(trial court elected to reduce burglary involving theft of a

cake to a misdemeanor, in order to avoid 25 years to life

sentence otherwise mandated for third strike defendant;

ruling affirmed on appeal], and People v. Vessell (1995) 36

Cal.App. 285 [trial court reduced the offense of inflicting

corporal injury upon a cohabiting person to a misdemeanor

and granted probation].)

Some states' recidivist statutes, which appear on

their face to be as draconian as California's, in actual

practice, are not enforced as rigidly as is California's.

In Idaho, a third conviction of any felony requires a prison

term of not less than five years, and the term may extend to

24

life. (Idaho e@ § 19-2514.) novever @: statute

differs from California's because the Idaho sentencing

courts have wide discretion within those bounds (State v.

McPhie (1983) 104 Idaho 652 [662 P.2d 233, 237); State v.

Gauna (1989) 117 Idaho 83 [785 P.2d 647, 652-653]), whereas

the California sentencing courts have no function but to

mathematically compute the defendant's sentence. More

important, application of the recidivist statute is not

mandatory; the Idaho court can sentence the defendant for

the last-committed crime only, notwithstanding the prior

record. (State v. Holton (App. 1991) 120 Idaho 112 [813

P.2d 923, 924].) Further, unlike the California statute,

under which consecutive sentences are mandatory (Pen. Code,

§ 667, subd. (c)(6)-(8)), the Idaho courts retain discretion

to sentence either consecutively or concurrently. (State v.

Brandt (App. 1986) 110 Idaho 341 [715 P.2d 1011, 1016)}.)

Finally, whereas 100 percent of the California minimum

sentence must be served, an Idaho defendant may be

considered for parole after service of one-third of the

sentence. (State v. Harrison (App. 1985) 108 Idaho 324 [699

P.2d 30, 31).)

PRAYER FOR RELIEF

WHEREPORE, MICHAEL W. RIGGS, IN PRO PER, BY A PERSON IN STATE CUSTODY

PRAYS THAT THIS COURT WILL GRANT CIRTIORARI REVIEW OF THE ISSUES PRESENTED

HEREIN REGAUARDING THE NEW CALIFORNIA THREE STRIKES LAW ANED SENTENCE

RENBERED: AND ANY RELIEF DEEMED JUST AND PROPER!

. oa ~

RESPECTFULLY SUBMITTED:

——————

Fourth Appellate District, Division Two, No. £0!19488

$067322

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, Respondent SUPREME COURT

s FILE

MICHAEL WAYNE RIGGS, Appellant Clerk

wandrutt

Robert yo aaa

=— DEPUTY

Appellant's petition for review DENIED.

GEORGE

Chief Justice

Qaw) App.2xe A)

~_£OR PUBLICATION

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA a

THE PEOPLE,

Plaintiff and Respondent, £019488,/

Vv. (Super.Ct.No. CR66167)

MICHAEL WAYNE RIGGS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Dennis McConaghy,

Judge. (Judge of the Municipal Court, assigned by the Chief Justice pursuant to art. VI, §

6 of the Cal. Const.) Affirmed with directions.

James L. Crowder, under appointment by the Court of Appeal, for Defendant and

Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant

Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster,

Supervising Deputy Attorney General, and Craig S. Nelson, Deputy Attorney General, for

Plainuff and Respondent.

(8) cx. (A)

A jury found defendant guilty of petty theft with a prior (Pen. Code, § 666)! and

possession of a hypodermic syringe (Bus. & Prof. Code, § 4149). The court found true

four allegations that defendant had served prior prison terms within the meaning of

section 667.5, subdivision (b) and four allegations that defendant had received serious

and/or violent felony convictions under section 667, subdivisions (c) and (e) and section

1170.12, subdivision (c). The court sentenced defendant to 25 years to life for the petty

theft with a prior conviction and to a concurrent 90-day term in county jail for count 2.

The court struck the prior prison term enhancements. The court gave defendant credit of

411 days for actual presentence custody but limited presentence conduct credits to 61

days under section 2933.1.

On appeal, defendant contends that the prosecutor committed prejudicial

misconduct in his closing argument to the jury, defendant’s life sentence constitutes crue!

and unusual! punishment under both the California and federal Constitutions and the mal

court erred in determining presentence conduct credits. We affirm the judgment but order

it amended to reflect the correct amount of presentence conduct credits.

FACTS

Ann Lopez, an employee of Albertsons Supermarket in Banning, was working in

one of the aisles when she noticed defendant standing in the vitamin section. Lopez saw

defendant take a bottle of vitamins from a display and place it in his jacket pocket. As

. All further statutory references will be to the Penal Code unless otherwise

(29)

Lopez watched him, defendant walked out of the store without paying for the vitamins.

Lopez notified another employee who accompanied Lopez as she followed defendant out

the store. Lopez asked defendant to return the vitamins, but defendant did not respond

and kept walking. Defendant eventually turned and looked at Lopez and began running

away. Several other male employees chased defendant across the parking lot. At one

point, defendant stopped and faced an employee. He told the employee that he had a

knife and swung his nght hand as if he had a knife. The employee realized there was no

knife in defendant's hand, and defendant continued running. Just before several

employees caught defendant, he threw the bottle of vitamins onto the ground. Defendant

asked the employees if he could work for the merchandise. As police were searching

defendant, they found a hypodermic syringe in his sock.

DISCUSSION

I

Prosecutonal Misconduct

Defendant contends that the prosecutor committed prejudicial error during his

closing argument to the jury. On appeal, defendant objects to the following statements by

the prosecutor: “Why are we here? Why does a person fight a traffic ticket? Well, he

may fight it because he doesn't believe he is guilty. He may also fight it because he

thinks the fine is too high, because he thinks he will get a reduction or some leniency if

he pushes it to the maximum. | disagree with that law. There is no way I’m going to pay

that ticket. These are things you can’t speculate on. The prosecutor must think he has a

good case, that’s why he pushed it this far. Or dre defendant Giists be bes 0 geed cone,

that is why he pushed it this far. That is not something for you to speculate about.”

Defendant also objects to the continuing comments: “Well, those are the two

duties that you are here to perform, and you know we're here today if you think about it

because Mr. Riggs just kept on pushing, you know, he just kept on pushing. He was

asked -- first, he goes into the store where people are running a business trying to make a

living. Young people, you know, making an hourly wage. It is not as if they're there to

risk their life for [a] $20 bottle of pills. And when he steals it ar d he walks out of the

store he pushes them. They say, just come back, we don’t want to get involved in this,

but he keeps pushing them. I’m going to violate the law, and I bet you if I push this

envelope far enough you guys are going to let me go.

“So what does he do? He runs and they chase him. So he says he has a knife and

he spins around like he is going to slash them. Then what does he do when they asked

him to come back to the store after they caught up to the guy? He won't cooperate. They

have to put handcuffs on him and take him back to the store. Only at that point does he

realize that their desire to be good employees and follow the law is stronger than his

desire to disobey the law.

“We're in [a] similar situation here as jurors. You are sitting as judges. Is your

will to follow the law stronger than Mr. Riggs’ will to disobey the law, or are you going

to blow it off and say, you know, it is just a $20 bottle of pills like the employees could

have blown it . . . off. It is kind of a test. He is pushing it to the limit. Maybe if I take it

(7//

this far, maybe people out there won't think at this time is important [sic] and they won't

vote guilty.

“But it is important he is testing will the law be enforced? [sic] Will my

lawlessness be tolerated by the society. And the answer to that question must be no, and

the answer to the question of guilt in this case must be yes.”

Defense counsel objected to the last portion of the prosecutor’s argument.

Defense counsel stated that the arguments concerning analogies to traffic tickets were

objectionable but he did not object at that point in the argument because he thought that

the prosecutor would move on. However, once the prosecutor returned to those remarks,

defense counsel objected and stated that the prosecutor was improperly commenting on

the exercise of defendant's constitutional nght to a jury trial and that stniking the

statements and admonishing the jury would not cure the prejudice. The Attorney General

asserts that defendant may not object to the first portion of the argument on appeal

because defense counsel did not object at the time; however, defense counsel’s objection

did encompass the prior comments, and defense counsel explained that he did not think

that striking the comments and admonishing the jury would cure the harm. Therefore,

defendant did not waive this particular portion of the issue on appeal.

A defendant has a constitutional right to a trial by jury under both the federal and

state Constitutions. (People v. Trejo (1990) 217 Cal.App.3d 1026, 1029.) A prosecutor

may not make adverse comments on a defendant's exercise of a constitutional night. (Cf.

(32,

Griffin v. California (1965) 380 U.S. 609, 613 [85 S.Ct. 1229, 14 L.Ed. 2d 106]; People

v. Crandell (1988) 46 Cal.3d 833, 877-878.)

Although the prosecutor’s comments were an inproper comment on defendant's

exercise of his right to a trial by jury, the trial court admonished the jury. “All right,

ladies and gentlemen, before we have the defense counsel's closing argument | just want

to make sure that nobody is led astray. There was a reference, actually the last paragraph

of the argument was we're in [a] similar situation as jurors. You're sitting as judges. Is

your will to follow the law stronger than Mr. Riggs’ will to disobey the law, or are you

going to blow it off and say, you know, it is just a $20 bottle of pills, like employees

could have blown it off.

“If any of the jurors interpreted the following, anything after that, as meaning that

the defendant should not or does not have a right to go to trial, period, that reference

should not have been, I believe, it wasn’t intended to mean that the defendant does not

have a right to go to trial. But you are not to interpret that he did not have a right to go to

trial, or the fact that he went to trial is any evidence of his guilt. As I say I don’t think it

was intended that way, but just if reading it I just want to make sure that you didn’t take it

that way. Okay, counsel, you may proceed.”

The trial court’s prompt admonishment informed the jury that defendant had a

constitutional right to trial by jury and that the jury was not to consider that fact in any

way in determining whether defendant was guilty of the offenses. This admonishment

adequately corrected any harm created by the prosecutor's statements. (People v. Gionis

[ 33)

(1995) 9 Cal 4th 1196, 1217.) In fact, after the verdicts were returned, a juror questioned

why such a small case went to jury tnal, but reaffirmed that he understood that defendant

had a constitutional nght to a jury tmal. The error was harmless beyond a reasonable

doubt

I]

Cruel and Unusual Puni nt

Defendant contends that his sentence of 25 years to life was cruel and unusual

punishment under both the federal and state Constitutions because the sentence is

disproportionate to the offense. The Attorney General contends that defendant waived

this issue because he did not bring a motion on these grounds. However, defendant did

ask the court to exercise its discretion to dismiss or strike the priors under several grounds

including the proportionality of the sentence, although defendant did not use the term,

“cruel and unusual punishment.”

The Eight Amendment to the United States Constitution prohibits cruel and

unusual punishment which includes sentences that are disproportionate io the crime

committed. (Solem v. Helm (1983) 463 U.S. 277, 284, 287 [103 S.Ct. 3001, 77 L.Ed.2d

637].) In determining whether a sentence is proportionate under the federal Constitution,

we examine the gravity of the offense and the harshness of the penalty, compare the

sentences imposed on other criminals in the same junsdiction and compare the sentences

imposed for commission of the same crime in other jurisdictions. (/d. at pp. 290-291.) In

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applying this test, we grant substantial deference to the authority that the Legislature

possesses in determining punishment for crimes. (/d. at p. 290.)

As for the first prong, defendant contends that his sentence of 25 years to life is

too harsh a penalty for the theft of a bottle of vitamins worth approximately $20. We

agree with this statement; however, defendant received his punishment for his recidivism

and not just his current offense. (People v. Cooper (1996) 43 Cal.App.4th 815, 825.)

The Legislature has designated the term of 25 years to life for a recidivist who has

received two or more prior serious or violent felony convictions and who receives a

subsequent felony conviction. In punishing recidivists, the government is interested in

more than punishment for the current offense. The state has an interest in dealing more

harshly with those who commit repeated criminal acts thereby showing that they are

incapable of conforming to society’s norms. (Rummel v. Estelle (1980) 445 US. 263,

276 [100 S.Ct. 1133, 63 L.Ed.2d 382].) “The purpose of a recidivist statute such as that

involved here is not to simplify the task of prosecutors, judges, or juries. Its primary

goals are to deter repeat offenders and, at some point in the life of one who repeatedly

commits criminal offenses serious enough to be punished as felonies, to segregate that

person from the rest of society for an extended period of time. This segregation and its

duration are based not merely on that person’s most recent offense but also on the

propensities he has demonstrated over a period of time during which he has been

convicted of and sentenced for other crimes. Like the line dividing felony theft from

petty larceny, the point at which a recidivist will be deemed to have demonstrated the

8

(357)

necessary propensities and the amount of time that the recidivist will be isolated from

society are matters largely within the discretion of the punishing jurisdiction.” (/d. at pp.

284-285.)

Defendant compares his crime with “more serious crimes” in California. He refers

to the sentence of 26 years to life for a first degree murder conviction with use of a

deadly weapon with parole eligibility in 17 years and 4 months. Defendant will be hy

serving 25 years to life with parole eligibility in approximately 20 eae Defendant

argues that he does not pose a greater danger to society than a first degree murderer does.

A comparison of defendant’s punishment for his recidivism to the punishment for others

who have been committed for “more serious crimes” but who are not repeat felons does

not aid our discussion. (People v. Ayon (1996) 46 Cal.App.4th 385, 400.) We note that

defendant’s prior strike convictions were for serious and/or violent felonies. Although

defendant's current conviction is not for a violent felony, a state’s interest in deterring

criminal conduct is not always determined by the presence or absence of violence.

(People v. Cooper, supra, 43 Cal.App.4th at p. 826.)

Defendant next compares his sentences with the recidivist statues in other

jurisdictions. He notes that in some jurisdictions the current felony must be an

aggravated one, some states apply varying punishment depending upon the severity of the

current crime, other states require the service of prior prison terms for the prior felonies

or require more prior felony convictions, other states allow the court wider jurisdiction in

the application of their recidivist statutes, some states give the prosecution more

@ Nore: Accoepimg TO PPL.yY STO FLE YS CAL. APP. YH 4/7, 4 2 STRIKE

PAROL:- BOARD ELI6(BILITY revenue (exHerr “B”),

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discretion and some states allow wash-out periods for prior felony convictions. Our

review of the recidivist statutes in other jurisdictions indicates that at least 40 states have

some form of punishment for recidivists.? It appears that California's three strikes law is

part of a nationwide pattern of recidivist statutes calling for substantially increased

sentences for repeat offenders. The fact that a sentence is mandatory does not necessarily

render it cruel and unusual. (Harmelin v. Michigan (1991) 501 U.S. 957, 994-995 [111

S.Ct. 2680, 175 L.Ed.2d 836.].) Although there may be some minor differences in the

recidivist statutes, California’s statute does not appear to be substantially more

2 Recidivist statutes are currently in effect in at least Alabama (Ala. Code, § 13A-5-

9), Arizona (Ariz. Rev. Stat. Ann., § 13-604), Arkansas (Ark. Code Ann., § 5-4-501),

Colorado (Colo. Rev. Stat., § 16-13-101), Connecticut (Conn. Gen. Stat. Ann., § 53a-40),

Delaware (Del. Code Ann., tit. 11, § 4214), Florida (Fla. Stat. Ann., § 775.084), Georgia

(Ga. Code Ann., § 17-10-7), Hawaii (Haw. Rev. Stat., § 706-606.5), Idaho (Idaho Code,

§ 19-2514), Illinois, (Ill. Ann. Stat., ch. 720, § 33B-1), Indiana (Ind. Code, § 35-50-2-8.5),

Kansas (Kan. Stat. Ann., § 21-4504), Kentucky (Ky. Rev. Stat. Ann., § 532.080),

~ Louisiana (La. Rev. Stat. Ann., § 15:529.1), Maryland (Md. Ann. Code, art. 27, § 643B),

Michigan (Mich. Comp. Laws Ann., § 769.12), Mississippi (Miss. Code Ann., § 99-19-

83), Missouri (Mo. Ann. Stat., § 558.016), Montana (Mont. Code Ann., § 46-18-501),

Nebraska (Neb. Rev. Stat., § 29-2221), Nevada (Nev. Rev. Stat., § 207.010), New

Hampshire (N.H. Stat. Ann., § 651:6), New Jersey (N.J. Stat. Ann., §§ 2C:44-3, 2C:43-

7), New York (N.Y. Penal Law, § 70.08), North Carolina (N.C. Gen. Stat. §§ 14-7.1, 14-

7.6), North Dakota (N.D. Cent. Code, § 12.1-32-09), Oklahoma (Okla. Stat., tit. 21, §

51), Oregon (Ore. Rev. Stat., § 161.725), Rhode Island (R.I. Gen. Laws, § 12-19-21),

South Carolina (S.C. Code Ann., § 17-25-45), South Dakota (S.D. Codified Laws, § 22-

7-8), Tennessee (Tenn. Code Ann., §§ 40-35-106, 40-35-107, 40-35-108), Texas (Tex.

Penal Code Ann., § 12.42), Utah (Utah Code, § 76-8-1001), Vermont (Vt. Stat. Ann., tit.

13, § 11), Virginia (Va. Code Ann., § 19.2-297.1), Washington (Wash. Rev. Code Ann ,

§ 9.92.090), West Virginia (W. Va. Code, § 61-11-18) and Wyoming (Wyo. Stat., § 6-10-

201).

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' |

burdensome than others. Thus, defendant has not met his burden with respect to the third

prong.

California's provision regarding cruel and unusual punishment is found in the

California Constitution under article I, section 17. The prohibition against cruel and

unusual punishment in California is violated if the sentence is grossly disproportionate to

the offense for which it is imposed. We examine the nature of the offense and the

offender with regard to the degree of danger they present to society, compare the penalty

in this case with other penalties in California for more serious crimes and compare the

penalty for this same offense in different jurisdictions with the one imposed in this case.

(People v. Dillon (1983) 34 Cal.3d 441, 477-478; In re Lynch (1972) 8 Cal.3d 410, 426-

427.) Defendant has the burden of establishing that his punishment is greater than that

imposed for more serious offenses in California and that similar offenses in other states

do not carry punishments as severe. (People v. Ayon, supra, 46 Cal.App.4th at p. 399.)

“First, the crime itself must be reviewed, both in the abstract and in view of the

totality of the circumstances surrounding its commission, ‘including such factors as its

motive, the way it was committed, the extent of defendant's involvement, and the

consequences of his acts .. . ,” to determine whether a particular punishment is grossly

disproportionate to the crime for which it is inflicted. [Citations.] Secondly, the court

must consider ‘the nature of the offender’ and inquire ‘whether the punishment is grossly

disproportionate to the defendant's individual culpability as shown by such factors as his

@ ©@

age, prior criminality, personal characteristics, and state of mind.’ [Citations.]” (People

v. Weddle (1991) 1 Cal.App.4th 1190, 1197-1198, fns. omitted.)

As previously discussed, defendant is being punished for his recidivism, and the

state has a great interest in punishing criminals for recidivist behavior. Although his

current offense is not violent, society’s interest is not always determined by the violence

of the offense. (People v. Cooper, supra, 43 Cal.App.4th at p. 826.) As for his current

| offense, it was a petty theft motivated by homelessness and hunger; however, he did

threaten violence to store employees. Defendant was in his mid-40’s at the time he

committed the current offense. Defendant has a lengthy list of prior convictions

including four counts of second degree robbery and a vehicle theft. Since 1983,

defendant has spent the majority of his life in custody. Defendant does appear to have a

problem with substance abuse. His substance abuse was apparently precipitated by the

death of his young son.

By committing another felony after having been convicted of numerous prior

serious and/or violent felonies, defendant has proven that he cannot conform to society's

rules. Prior incarceration has failed to dissuade defendant from his criminal activities.

Our discussion of the last two prongs under the federal Constitution applies equally to the

California Constitution. We therefore determine that defendant’s punishment for his

recidivist behavior was not grossly disproportionate to the offense and his sentence under

the three strikes law does not constitute cruel and unusual punishment under the

California or federal Constitutions.

IT]

Presentence Custody Conduct Credit

The court limited the presentence conduct credits given to defendant on the basis

of section 2933.1. That section limits presentence conduct credit to 15% for people

convicted of certain violent felonies which are listed in section 667.5. Subdivision (c)(7)

of section 667.5 lists “any felony punishable by death or imprisonment in the state prison

for life” as a violent felony. The court below determined that defendant's sentence of 25

years to life qualified him for application of section 2933.1. The Attorney General

concedes that defendant is entitled to additional conduct credits; however, the Attorney

General cites to an incorrect case in support of this concession. In People v. Henson

(1997) 57 Cal.App.4th 1380, this court held that the sentence of 25 years to life imposed

upon a defendant under the three strikes law does not qualify as “any felony punishable

by death or imprisonment in the state prison for life” as defined in section 667.5,

subdivision (c)(7). Therefore, this court held that section 2933.1’s limitations on

presentence conduct credit does not apply to a person’s sentence under the three strikes

law unless that person’s current conviction is for one of the listed violent felonies.

Defendant’s current offense is for petty theft with a prior which is not one of the listed

violent felonies; therefore, the court erred in applying section 2933.1 to defendant. Both

defendant and the Attorney General agree that he is entitled to a total of 204 days of

conduct credits rather than the 61 days which the court awarded to him.

13

(Yo)

DISPOSITION

The judgment is affirmed, however, the trial court is ordered to amend the abstract

of judgment to award defendant a total of 204 days of presentence conduct credit and to

forward a copy of the amended abstract of judgment to the Department of Corrections.

NOT FOR PUBLICATION

/s/ Ramirez

PJ.

We concur

/s/ Ward

J.

/s/ Gaut

J.

la = mm

! -&.

G/ys/eT SaT 19:95 FAX 916 324 @ CASE RECORDS ADMIN

4

State of California N ? TED

Qa 4 Drege

Memorandum Nov 1 99896

Date November 14, 1997 COMPLEX : cesT i

To

Subject.

ycoc 1617 00)

ee *.«

ASSOCIATE WARucw

Wardens

Classificztion & Parole Representatives

Correctional! Case Records Managers

INSTRUCTIONAL

CONDUCT CREDIT FOR INMATES COMMITTED TO AN INDETERMINATE TERM

AS A THIRD STRiIn& OFFENL E.i (PEOPLE VS. STOFLE) (CR 97/36)

The purpose of this memorandum |S to provide updated instructions regarding

conduct credit for thud sins offenders

PEOPLE VS. STOFLE (1996) 45 CAL APP. 4TH S17 :

The Court of Appeal has determined that inmates committed to an indeterminate

term as a third strike offender are nct entitled to earn any credit to reduce their

minimum term. Therefore, the following procedures are to be implemented

immediately:

e The zero credit rule applies exclusively to third strike commitments ordered

pursuant to Penal Code (PC) Section 667(e(2)Ai), (ii) or (ii) oF

PC Section 1179 Ize" 24M), (i) OF (iH)

» Zero conduc: credit 's effective the dale of sentencing

e Aili inmates presently in the custody of the California Department of

Corrections (COC), 3s well as future inmates committed as third strike

offenders shal! have the: Minimum Ejigiole Parcle Daie (fMEPO) recalculated

to reflect zero credit earning status. in order to produce an automated Legal

Status Summary, ihe credit code for the offense data contained in the

Offender Based Information System (OBIS) shall be changed to “35.”

(violent offenses occurring on or after September 21, 1994). The credit code

entry in OBIS for the offense and case enhancements would be either “3

(20 percent credit), or “6” (15 percent credit)

e Second strike or nonstrike prison commitments ordered to run consecutively

or concurrently with a third strike commitment are not subject to the zero

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( EXHIBIT"B")

>.

Oe Sgavo7 Sav 18:95 FAL 16 324 & CASE RECORDS ADMIN

ow

Wardens

Classification & Parole Representatives

Correctional Case Records Managers

Page 2

credit rule. The inmate is eligible to earn applicable credits to reduce the

term imposed ({i.2., nonviclent second strike would earn 20 percent credit;

nonviolent nonstrike would earn work incentive credit: violent offenders for

crimes that occurrea cn or alter September 21, 1994 would earn 15 percent

credit).

e The provisions of PC Secticn 2923 5 take precedence over any other credit

eligibility law.

e The attached nctice has oeen prepared to advise inmates and parolees of

the impact of the Siofle decision on third strike offenders. Please ensure that

the notice is posted in conspicuous locations accessible to inmates and

parolees.

A listing of third strike ofenders housed at your institution is provided to assist in

identifying all third strike cases which require recalculation. At the time of

recalculation, the Case Records Specialist shail post the CDC Form 112 as follows:

“MEPD recalculated per Feople vs. Stofle.” A Legal Status Summary reflecting the

recalculated MED shail be fcnvarded to the inmate along with a copy of the notice

regarding People vs. Stofle.

Please share the content of this memorandum with all concerned Any questions

may be directed to Kris Hubbard, Correctional Case Records Administrator, at

(916) 323-7401 or CALNET 473-7401

ectional Case Records Services

Attachment

cc: Regional Administrators .

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ee i ee

- el ee oe e

eo "Zoot

(Exner “B")