Appendix — Riggs v. California

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ORIGINAL omc

No. 98-5021

5 IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

MICHAEL W. RIGGS,

Petitioner,

THE STATE OF CALIFORNIA,

Respondent.

——————————

APPENDICES TO OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

LAURA W. HALGREN

Supervising Deputy Attorney General

CRAIG S. NELSON

Deputy Attorney General

Counsel of kecord

110 West A St., Suite 1100

San Diego, CA 92101

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2207

Pax: (645) 645-2191

Counsel for Respondent

Page

APPENDIX A

California Supreme Court Order Denying

Appellant's Petition For Review A-1

APPENDIX B

California Court Of Appeal Opinion B-2 - B-15

APPENDIX C

Penal Code Sections 667, 667.5, 1170.12 C-16 - C-33

APPENDIX D

Petition For Review In California

Supreme Court D-34 - D-64 APPENDIX A

APPENDIX E

Pro Per Supplemental Petition For Review

In California Supreme Court E-65 - E-83

APPENDIX F

Respondent's Brief In California Court

of Appeal F-84 - F-119

APPENDIX G

Appellant's Opening Brief In California

Court Of Appeal G-120 - G-150

A-l1

APPENDIX A

$067322

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Fourth Appellate District, Division Two, No. - viel ue?

4 TD

IN THE SUPREME COURT OF CALIFORNIA } ereored LU"

Octo Recs

THE PEOPLE, Respondent SUPREME i

6 FILE

FEB 28 1998

MICHAEL WAYNE R ]

CHAEL IGGS, Appellant Robert wandrutt Clerk

7 DEPUTY

Appellant's petition for review DENIED.

GEORGE

Chief Justice

APPENDIX

NOT FOR PUBLICATION

APPENDIX B a :

COURT OF APPEAL, FOURTH DISTRICT te. ca LG?

DIVISION TWO

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent, E019488

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

Plaintiff and Respondent.

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Adaiy Gent oteatecatinc dienes dutvettbaates ties 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 pnor 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 day's for actual presentence custody but limited presentence conduct credits to 61

days under section 2933.1.

On appeal, defendant contends that the prosecutor commutted prejudicial

misconduct in his closing argument to the jury, defendant's life sentence constitutes cruel

and unusual punishment under both the California and federal Constitutions and the trial

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

sndicated

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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 right 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

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

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good case, that’s why he pushed it this far. Or the defendant thinks he has a good case,

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 : 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 and 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 | bet you if 1 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 1 take it

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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 right to a jury trial and that striking 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 right. (Cf.

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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 improper 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 I 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 defer.dant 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

(1998) 9 Cal.4th 1196, 1217.) In fact, after the verdicts were returned, a juror questioned

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

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

doubt.

Cruel and Unusual Punishment

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 to 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 jurisdiction 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 alley 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 pnor 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 U.S. 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

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necessary propensities and the amount of time that the recidivist will be isolated fro.n

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

serving 25 years to life with parole eligibility in approximately 20 years. 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 feloniés

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

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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 patrern 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, 46-35-108), 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 reapect 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 vabetmant. 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

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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 pnor 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.

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Ill

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.

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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

P. J.

We concur:

/s/ Ward

/s/ Gaut_

APPENDIX

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APPENDIX Cc

§ 667. Habitual criminals; enhancement of sentence; amendment of

section

(a) (1) In compliance with subdivision (b) of Section 1385,

any person convicted of a serious felony who previously has been

convicted of a serious felony in this state or of any offense

committed in another jurisdiction which includes all of the

elements of any serious felony, shall receive, in addition to the

sentence imposed by the court for the present offense, a five

year enhancement for each such prior conviction on charges

brought and tried separately. The terms of the present offense

and each enhancement shall run consecutively.

{2) This subdivision shall not be applied when the punishment

imposed under other provisions of law would result in a longer

term of imprisonment. There is no requirement of prior

incarceration or commitment for this subdivision to apply.

13) The Legislature may increase the length of the

enhancement of sentence provided in this gubdivision by a statute

passed by majority vote of each house thereof.

{4) As used in this * * * gubdivision, “serious felony” means

a serious felony listed in subdivision (c) of Section 1192.7.

* * *#(5) This subdivision * * * shall not apply to a person

convicted of selling, furnishing, administering, or giving, or

offering to sell, furnish, administer, or give to a minor any

methamphetamine-related drug or any precursors of methamphetamine

unless the prior conviction was for a serious felony described in

subparagraph (24) of subdivision (c) of Section 1192.7.

ib) It is the sntent of the Legislature in enacting

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Services as a mentally disordered sex offender following a

—1b) The commitment to the California Rehabilitation Center or

any other facility whose function is rehabilitative diversion

from the state prison.

(2) A conviction in another jurisdiction for an offense

that, if committed in California, is punishable by imprisonment

) } , : : bot j ¢ ticu] fel

hall includ bots iurisdict/ € Ef

Cc - 20

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isi et) bdivisi b]

{j) The provisions of this section shall not be amended by

the Legislature except by statute passed in each house by

rollcall vote entered in the journal, two-thirds of the

membership concurring, or by a statute that becomes effective

only when approved by the electors. (Added by Initiative

Measure, approved by the people, June 8, 1982. Amended by Stats.

1986, c. 85, § 1.5, urgency, eff. May 6, 1986; Stats. 1989, c.

1043, § 1; Stats. 1994, c. 12 (A.B.971), § 1, eft. March 7,

1994.)

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667.5. Prior prison terms; enhancement of prison terms for new

offenses

Enhancement of prison terms for new offenses because of

prior prison terms shall be imposed as follows:

(a) Where one of the new offenses is one of the violent

felonies specified in subdivision (c), in addition and

consecutive to any other prison terms therefor, the court shall

impose a three-year term for each prior separate prison term

served by the defendant where the prior offense was one of the

violent felonies specified in subdivision (c). However, no

additional term shall be imposed under this subdivision for any

prison time served prior to a perioc of 10 years in which the

defendant remained free of both prison custody and the commission

of an offense which results in a felony conviction.

(b) Except where subdivision (a) applies, where the new

offense is any felony for which a prison sentence is imposed, in

addition and consecutive to any other prison terms therefor, the

court shall impose a one-year term for each prior separate prison

term served for any felony; provided that no additional term

shall be imposed under this subdivision for any prison term

served prior to a period of five years in which the defendant

remained free of both prison ‘custody and the commission of an

offense which results in a felony conviction.

means any of the following:

(1) Murder or voluntary manslaughter.

(2) Mayhem.

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(3) Rape as defined in paragraph (2) or (6) of subdivision

(a) of Section 261 or paragraph (1) or (4) of subdivision (a) of

Section 262.

(4) Sodomy by force, violence, duress, menace, or fear of

immediate and unlawful bodily injury on the victim or another

person.

(S) Oral copulation by force, violence, duress, menace, or

fear of immediate and unlawful bodily injury on the victim or

another person.

(6) Lewd acts on a child under the age of 14 years as defined

in Section 288.

(7) Any felony punishable by death or imprisonment in the

state prison for life.

(8) Any felony in which the defendant inflicts great bodily

injury on any person other than an accomplice which has been

charged and proved as provided for in Section 12022.7 or

12022.9 on or after July 1, 1977, or as specified prior to

July 1, 1977, in Sections 213, 264, and 461, or any felony in

which the defendant uses a firearm which use has been charged and

proved as provided in Section 12022.5, 12022.53, or 12022.55.

(9) Any robbery perpetrated in an inhabited dwelling house,

vessel, as defined in Section 21 of the Harbors and Navigation

Code, which is inhabited and designed for habitation, an

inhabited floating home as defined in subdivision (d) of Section

18075.55 of the Health and Safety Code, an inhabited trailer

coach, as defined in the Vehicle Code, or in the inhabited

portion of any other building, wherein it is charged and proved

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that the defendant personally used a deadly or dangerous weapon,

as provided in subdivision (b) of Section 12022, in the

commission of that robbery.

(10) Arson, in violation of subdivision (a) of Section 451.

(11) The offense defined in subdivision (a) of Section 289

where the act is accomplished against the victim’s will by force,

violence, duress, menace, or fear of immediate and unlawful

bodily injury on the victim or another person.

(12) Attempted murder.

(13) A violation of Section 12308.

(14) Kidnapping, in violation of subdivision (b) of Section

207.

(15) Kidnapping, as punished in subdivision (b) of Section

208.

(16) Continuous sexual abuse of a child, in violation of

Section 288.5.

(17) Carjacking, as defined in subdivision (a) of Section

215, if it is charged and proved that the defendant personally

used a dangerous or deadly weapon as provided in subdivision (b)

of Section 12022 in the commission of the carjacking.

{18) Any robbery of the first degree-punishable pursuant to

subparagraph (A) of paragraph (1) of subdivision (a) of Section

213.

(19) A violation of Section 264.1.

The Legislature finds and declares that these specified

crimes merit special consideration when imposing a sentence to

display society’s condemnation for these extraordinary crimes of

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violence against the person.

(d) For the purposes of this section, the defendant shall be

deemed to remain in prison custody for an offense until the

official discharge from custody or until release on parole,

whichever first occurs, including any time during which the

defendant remains subject to reimprisonment for escape from

custody or is reimprisoned on revocation of parole. The

additional penalties provided for prior prison terms shall not be

imposed unless they are charged and admitted or found true in the

action for the new offense.

(e) The additional penalties provided for prior prison terms

shall not be imposed for any felony for which the defendant did

not serve a prior separate term in state prison.

(£) A prior conviction of a felony shall include a conviction

in another jurisdiction for an offense which, if committed in

California, is punishable by imprisonment in the state prison if

the defendant served one year or more in prison for the offense

in the other jurisdiction. A prior conviction of a particular

felony shall include a conviction in another jurisdiction for an

offense which includes all of the elements of the particular

felony as defined under California law if the defendant served

one year or more in prison for the offense in the other

jurisdiction.

(g) A prior separate prison term for the purposes of this

section shall mean a continuous completed period of prison

incarceration imposed for the particular offense alone or in

combination with concurrent or consecutive sentences for other

C - 37

crimes, including an, reimprisonment on revocation of parole

which is not accompanied by a new commitment to prison, and

including any reimprisonment after an escape from incarceration.

(h) Serving a prison term includes any confinement time in

any state prison ,or federal penal institution as punishment for

Commission of an offense, including confinement in a hospital or

other institution or facility credited as service of prison time

in the jurisdiction of the confinement.

(i) For the purposes of this section, a commitment to the

State Department of Mental Health as a mentally disordered sex

offender following a conviction of a felony, which commitment

exceeds one year in duration, shall be deemed a prior prison

term.

(j) For the purposes of this section, when a person subject

to the custody, control, and discipline of the Director of

Corrections is incarcerated at a facility operated by the

Department of the Youth Authority, that incarceration shall be

deemed to be a term served in state prison.

(k) Notwithstanding subdivisions (d) and (g) or any other

provision of law, where one of the new offenses is committed

while the defendant is temporarily removed from prison pursuant

to Section 2690 or while the defendant is transferred to a

community facility pursuant to, Section 3416, 6253, or 6263, or

while the defendant is on furlough pursuant to Section 6254, the

defendant shall be subject to the full enhancements provided for

in this section.

This subdivision shall not apply when a full, separate, and

Cc - 28

consecutive term is imposed pursuant to any other provision of

law. (Added by Stats.1976, c. 1139, p. 5137 § 268, operative

July 1, 1977. Amended by Stats.1977, c. 2, p. 4, § 1, eff. Dec.

16, 1976, operative July 1, 1977; Stats.1977 c. 165, p. 644, §

13, eff. June 29, 1977, operative July 1, 1977; Stats.1980, c.

587, p. 1596, § 3; Stats.1983, c. 229, § 1; Stats.1985, c. 402, §

1; Stats.1986, c. 645, § 1; Stats.198", c. 611, § 1; Stats.1988,

c. 70, § 1; Stats.1988, c. 89, § 1.5; Stats.1988, c. 432 § 1;

Stats. 1988, c. 1484, § 1; Stats.1988, c. 1484 § 1.1; Stats.

1989, c. 1012, § 1; Stats.1990, c. 18 (A.B. 662), § 1;

Stats.1991, c. 451 (A.B. 1393), § 1; Stats.1993, c. 162 (A.B.

112), § 3; Stats. 1993, c. 298 (A.B.31), § 2; Stats.1993, c. 610

(A.B. 6), § 10, eff. Oct. 1, 1993,' Stats.1993, c. 611 (S.B. 60),

§ 11, eff. Oct. 1, 1993; Stats.1994, c. 1188 (S.B. 59), § 6;

Stats.1997 c. 371 (A.B. 793), § 1; Stats.1997 c. 504 (A.B.115), §

2.)

Cc - 29

§ 1170.12. Prior felony conviction; enhancement

(a) Notwithstanding any other prévision of law, if a

defendant has been convicted of a felony and it has been pled and

proved that the defendant has one or more prior felony

convictions, as defined in subdivision (b), the cour’? chall

adhere to each of the following:

(1) There shall not be an aggregate term limitation for

purposes of consecutive sentencing for any subsequent felony

conviction.

(2) Probation for the current offense shah not be granted,

nor shall execution or imposition of the sentence be suspended

for any prior offense.

(3) The length of time between the prior felony conviction

and the current felony conviction shall not affect the imposition

of sentence.

(4) There shall not be a commitment to any other facility

other than the state prison. Diversion shall not be granted nor

shall the defendant be eligible for commitment to the California

Rehabilitation Center as provided in Article 2 (commencing with

Section 3050) of Chapter 1 of Division 3 of the Welfare and

Institutions Code.

(S) The total amount of credits awarded pursuant to Article

2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of

Part 3 shall not exceed one-fifth of the total term of

imprisonment imposed and shall not accrue until the defendant is

physically placed in the state prison.

(6) If there is a current conviction for more than one

Cc - 30

felony count not committed on the same occasion, and not arising

from the same set of operative facts, the court shall sentence

the defendant consecutively on each count pursuant to this

section.

(7) If there is a current conviction for more than one

serious or violent felony as described in paragraph (6) of this

subdivision, the court shall impose the sentence for each

conviction consecutive to the sentence for any other conviction

for which the defendant may be consecutively sentenced in the

manner prescribed by law.

(8) Any sentence imposed pursuant to this section will be

imposed consecutive to any other sentence which the defendant is

already serving, unless otherwise provided by law.

(b) Notwithstanding any other provision of law and for the

purposes of this section, 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 this section 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 the felony to a misdemeanor. None of the

following dispositions shall affect the determination that a

prior conviction is a prior felony for purposes of this section:

(A) The suspension of imposition of judgment or sentence.

c - 31

(B) The stay of execution of sentence.

as a mentally disordered sex offender following a conviction of a

felony.

(D) The commitment to the California Rehabilitation Center

or any other facility whose function is rehabilitative diversion

from the state prison.

(2) A conviction in another jurisdiction for an offense

that, if committed in California, is punishable by imprisonment

in the state prison. A prior conviction of a particular felony

shall include a conviction in another jurisdiction for an offense

that includes all of the elements of the particular felony as

defined in subdivision (c) of Section 667.5 or subdivision (c) of

Section 1192.7.

(3) A prior juvenile adjudication shall constitute a prior

felony conviction for purposes of sentence enhancement if:

(A) The juvenile was sixteen years of age or older at the

time he or she committed the prior offense, and

(B) The prior offense is

(i) listed in subdivision (b) of Section 707 of the Welfare

and Institutions Code, or

(ii) listed in this subdivision as a felony, and

be dealt with under the juvenile court law, and

(D) The juvenile was adjudged a ward of the juvenile court

within the meaning of Section 602 of the Welfare and Institutions

Code because the person committed an offense listed in

Cc - 32

subdivision (b) of Section 707 of the Welfare and Institutions

Code.

other enhancements or punishment provisions which may apply, the

following shall apply where a defendant has a prior it'elony

conviction:

(1) If a defendant has one prior felony convicti-n that has

been pled and proved, the determinate term or minimaim term for an

indeterminate term shall be twice the term otherwise provided as

punishment for the current felony conviction.

(2) (A) If a defendant has two or more prior felony

convictions, as defined in paragraph (1) of subdivision (b), that

have been pled and proved, the term for the current felony

conviction shall be an indeterminate term of life imprisonment

with a minimum term of the indeterminate sentence calculated as

the greater of

(i) three times the term otherwise provided as punishment

for each current felony conviction subsequent to the two or more

prior felony convictions, or

(ii) twenty-five years or

(iii) the term determined by the court pursuant to Section

1170 for the underlying conviction, including any enhancement

applicable under Chapter 4.5 (commencing with Section 1170) of

Title 7 of Part 2, or any period prescribed by Section 190 or

3046.

(B) The indeterminate term described in subparagraph (A) of

paragraph (2) of this subdivision shall be served consecutive to

Cc - 33

any other term of imprisonment for which a consecutive term may

be imposed by law. Any other term imposed subsequent to any

indeterminate term described in subparagraph (A) of paragraph (2)

of this subdivision shall not be merged therein but shall

commence at the time the person would otherwise have been

released from prison.

(ad) (1) Notwithstanding any other provision of law, this

section shall be applied in every case in which a defendant has a

prior felony conviction as defined in this section. The

prosecuting attorney shall plead and prove each prior felony

conviction except as provided in paragraph (2).

(2) The prosecuting attorney may move to dismiss or strike a

prior felony conviction allegation in the furtherance of justice

pursuant to Section 1385, or if there is insufficient evidence to

prove the prior conviction. If upon the satisfaction of the court

that there is insufficient evidence to prove the prior felony

conviction, the court may dismiss or strike the allegation.

(e) Prior felony convictions shall not be used in plea

bargaining, as defined in subdivision (b) of Section 1192.7. The

prosecution shall plead and prove all known prior felony

convictions and shall not enter into-any agreement to strike or

seek the dismissal of any prior felony conviction allegation

except as provided in paragraph (2) of subdivision (d). (Added

by Initiative Measure (Prop. 184, § 1, approved Nov. 8, 1994).)

APPENDIX

D- 34

D - 35

APPENDIX D nerstraritiaees

TABLE OF CONTENTS

IN THE SUPREME COURT DOCKET

cA sO

OF THE STATE OF CALIFORNIA te. TABLE OF AUTHORITIES ......-.

Erterod by ISSUE PRESENTED FOR REVIEW ....

CC) ——

REASON REVIEW SHOULD BE GRANTED . .

Court of Appeal STATEMENT OF THE CASE .......

No. E019488

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent, STATEMENT OF FACTS .....24e26-.

Super. Ct. No. s,s ae) ee 6 ee we te ee

CR66167

Vv.

MICHAEL WAYNE RIGGS, CONCLUSION . . . . . . . . . . . .

Defendant and Appellant.

PETITION FOR REVIEW

OF A DECISION OF THE CALIFORNIA COURT OF APPEALS

a elt Cae

FOURTH APPELLATE DISTRICT, DIVISION TWO

JAMES L. CROWDER

140 East Figueroa Street

Santa Barbara, CA 93101

(805) 966-9788

State Bar No. 55564

Attorney for appellant,

By appointment of the

Court of Appeal under

Appellate Defenders, Inc.

independent-case system

> ww N N

D- 36

D- 37

FRBLE OF _AUCHCELTIES TABLE OF AUTHORITIES (Contd)

Cases: Page CASES

Cacoperdo v. Demosthenes United States v. Cupa-Guilen

(9th Cir. 1994) 37 F.3d 504 4 (9th Cir. i994) 34 F.3d 86

Coker v. Georgia (1977) 433 U.S. 584 4 United States v. Fisher

Faulkner v. State (Alaska 1968) 445 P.2d 815 6 (Sth Cis. 1994) 22 F.3d 574

ted States v. Frieberger

In re Foss (1974) 10 Cal.3d 910 9 United States v. Lanier

In re Lynch (1972) 8 Cal.3d 410 4, 5, 6 (OUR Cis. 1996) 33 7.38 639

In re Oluwa (1989) 207 Cal.App.3d 439 7 ene ck aan. snes Oe p08 1900

In re Rodriguez (1975) 14 Cal.3d 639 5 United States v. Sarbello

° . 7

McGruder v. Puckett (5th Cir. 1992) (98 Cae. BSS) See Fe Vee

954 F.2d 313 . 4 ;

People v. Dillon (1983) 34 Cal.3d 441 4, 5, 6 STATLTES

People v. Trausch (1995) 36 Cal.App.4th 1239 8 ZGehe Cade, sestion 19-8834

People v. Vessell (1995) 36 Cal.App. 285 8 Penal Code section 667

[715 P.2d 1011) 9

State v. Gauna (1989) 117 Idaho 83 California Constitution, article I

(785 P.2d 647) . United States Constitution, 8th Amendment

State v. Harrison (App. 1985) 108 Idaho 324

[699 P.2d 30} 9

State v. Holton (App. 1991) 120 Idaho 112

[813 P.2d 923) a

State v. McPhie (1983) 104 Idaho 652

[662 P.2d 233] 8

United States v. Angulo-Lopez

(10th Cir.1993) 7 F.3d 1506 4

ii iii

D- 38

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

Court of Appeal

No. E019488

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

Super. Ct. No.

CR66167

Vv.

MICHAEL WAYNE RIGGS,

Defendant and Appellant.

PETITION FOR REVIEW

TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND

TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF

THE STATE OF CALIFORNIA:

MICHAEL WAYNE RIGGS, defendant and appellant,

hereby petitions this Honorable Court for review in the

above-entitled matter after decision rendered by the Court

of Appeal of the State of California, Fourth Appellate

district, Division Two, filed on December 17, 1997,

affirming the lower court's judgment. A copy of the opinion

of the Court of Appeal is attached hereto as an appendix.

ISSUE PRESENTED FOR REVIEW

Did the life sentence for the offense of petty

theft constitute cruel and unusual punishment under both the

California and federal constitutions?

Review should be granted to resolve whether a life

sentence which is imposed for the offense of petty theft

amounts to cruel and unusual punishment under both the

California and federal constitutions, an important issue of

law.

STATEMENT OF THE CASE

This is a Petition for Review of the decision of

the Court of Appeals, Fourth Appellate District, Division

Two. There, appellant contended that the life sentence

which was imposed for the offense of petty theft constituted

cruel and unusual punishment under the federal constitution

as well under the California Constitution.

In the trial court, in a two-count amended

information, appellant was charged with petty theft with a

prior conviction of robbery [Ct. 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.)'

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

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

Transcript on appeal.

D- 40

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 249A-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.

325.)

The Court of Appeal affirmed the conviction.

STATEMENT OF FACTS

The facts concerning the current offenses are

fairly stated in the opinion of the Court of Appeal.

(cT

D- 41

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

*~the federal circuit courts continue to apply a gross

pe hg yen | 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.)

D- 42

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

penalty with punishments prescribed for the same offense in

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

425-427.)

For a holding of disproportionality, the court

need not find the punishment disproportionate in all three

respects. Rather, a finding of disproportionality based

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

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

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

that each of the techniques must be considered in total

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

that a statute's disparity with punishments in other states

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

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

is that the measure of disproportionality found in applying

the several techniques would be cumulative.

A. The penalty is disproportionate as applied to

this offense and this offender.

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

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

application of the felony-murder rule violated the

prohibition against cruel and unusual punishment. In

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

D- 43

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

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

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

p. 425.)

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

are to consider "the totality of the circumstances

surrounding the commission of the offense in the case at

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

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

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

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

appropriate inquiry is “whether the punishment is grossly

disproportionate to defendant's individual culpability as

shown by such factors as his age, prior criminality,

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

Proper application of this analysis to the present

case reveals that appellant's life sentence is "grossly

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

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

case, appellant was convicted of petty theft. Yet,

appellant has been subjected to a life sentence for this

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

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

Petty theft is not among those offenses considered

most dangerous to society. It is neither serious nor

violent. An examination of the "totality of the

circumstances surrounding the commission of the offense"

D- 44

also underscores the nonserious, nonviolent nature of the

offense.

While appellant's prior felony convictions

arguably support some increased punishment for the current

offense, the extreme punishment imposed cannot be

rationalized under any credible system of criminal justice.

(Cf. In re Lynch, supra, 8 Cal.3d at p. 425; Faulkner v.

State (Alaska 1968) 445 P.2d 815, 818-819 [holding

unconstitutionally disproportionate a 36-year sentence

imposed on a 46-year-old man with a prior criminal record

for a single spree of passing bad checks in one single

day)-)

MB ttm «

D- 45

In the present case, the Legislature has already

determined that a conviction under Penal Code section 666 is

not among the state's serious or violent felonies. (See §§

667.5, subd. (b), 1192.7, subd. (c).) Under the Three

Strikes Law, appellant is not eligible for parole until he

serves 20.8 years, i.e., 80% of 26 years. (§ 667, subd.

(c)(5).) By contrast, someone who commits a cold-blooded

premeditated murder with a deadly-weapon receives a maximum

sentence of 26 years to life (§§ 190, subd. (a), and 12022,

subd. (b)), and is eligible for parole in 17 years 4 months.

(In re Oluwa (1989) 207 Cal.App.3d 439, 444-447.)

The question then becomes whether it is cruel or

unusual to impose a sentence of 26 years to life without

parole eligibility for 20.8 years in this case for having

committed a petty theft. There is no doubt that the answer

is yes. A person who commits premeditated murder with a

deadly weapon is eligible for parole for that offense three

years and 10 months sooner than appellant will be for this

offense. Under no principled or defensible analysis can

appellant be viewed as having posed a greater danger to

society than such a murderer. As stated in Dillon, "a

comparison of the challenged penalty with those prescribed

in the same jurisdiction for more-serious crimes . .. is

D- 46

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].)

Cc. The penalty is disproportionate when compared

with recidivist punishments in other jurisdictions.

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

D- 47

life. (Idaho Code, § 19-2514.) However, that 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.2da 30, 31).)

D- 48

CONCLUSION vlan

Review should be granted in this matter to resolve

this important question.

Dated: January LZ 1998

Respectfully submitted,

orney for Appellant ADDENDUM

y appointment of Court

of Appeal under the

Appellate Defenders, Inc.

independent-case system

aac

D- 50

T FOR LICATI

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA id vt, Wa - = I

| ery 997 |

THE PEOPLE, = of OF APPLAL- LUUREH DISTRICT

Plaintiff and Respondent, E019488

v. (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. Sthons, Senior Assistant Attorney General, Robert M. Foster,

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

Plaintiff and Respondent.

D- 51

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 cruel

and unusual punishment under both the California and federal Constitutions and the trial

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

indicated.

D- $2

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

Prosecutonial 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

D- 5§3

good case, that’s why he pushed it this far. Or the defendant thinks he has a good case,

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 and 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

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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 right to a jury trial and that striking 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 right. (Cf.

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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 improper comment on defendant's

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

ladics 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 co 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

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

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

had a constitutional right to a jury trial. The error was harmless beyond a reasonable

doubt.

Cruel and Unusual Punishment

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 to 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 jurisdiction 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.)

Aa tia ans Meaietin, detente anateets Getiisntneen et eit Stak

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