# Appendix — Riggs v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0288%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1999 - **Citation:** 525 U.S. 1114 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BSTTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. ORIGINAL omc No. 98-5021 5 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1998 MICHAEL W. RIGGS, Petitioner, We THE STATE OF CALIFORNIA, Respondent. —————————— APPENDICES TO OPPOSITION TO PETITION FOR WRIT OF CERTIORARI ee 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 \fv 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 GEORGE Chief Justice eo APPENDIX NOT FOR PUBLICATION APPENDIX B a : COURT OF APPEAL, FOURTH DISTRICT te.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. B-3 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 B- 4 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 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 B- 5 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 B- 6 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. B- 7 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. II 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 B- 9 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 B - 10 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 B- 11 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). 10 B - 12 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 11 B- 13 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. 12 B- 14 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. 13 B- 15 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_ J. 14 APPENDIX Cc Cc - 16 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 c - 19 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 © - 23 C - 22 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.) Cc - 23 667.5. 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. (c) For the purpose of this section, "violent felony" * * * means any of the following: (1) Murder or voluntary manslaughter. (2) Mayhem. C - 24 (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 C - 25 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 C - 26 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. (C) The commitment to the State Department of Health Services 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 (C) The juvenile was found to be a fit and proper subject to 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. (c) For purposes of this section, and in addition to any 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 5 ee 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).) 10 D- 48 CONCLUSION vlan Review should be granted in this matter to resolve this important question. Dated: January LZ 1998 Respectfully submitted, L. orney for Appellant ADDENDUM y appointment of Court of Appeal under the Appellate Defenders, Inc. independent-case system aac 11 D- 50 T FOR LICATI COURT OF APPEAL, FOURTH DISTRICT DIVISION TWO STATE OF CALIFORNIA id vt, Wa - = I u! | 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 I 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 p- 54 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. D- 55 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 D- 56 (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. ll 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 D- 57 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 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 D- 58 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 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 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 — D- 59 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). 10 D- 60 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 D- 61 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 ante 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. 12 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 a D - 63 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 __ J. /s/ Gaut J. 14 D- 64 DECLARATION OF SERVICE I, undersigned say: I am over 18 years of age, employed in the County of Santa Barbara, California, in which county the with-in mentioned delivery occurred, and not a party to the subject cause. My business address is 140 East Figueroa Street, Santa Barbara, California. I served the Appellant's Petition for Review by placing a copy thereof in a separate envelope for each addressee named hereafter, addressed to each such addressee respectively as follows: Office of the Attorney General 110 West "A" Street Suite 700 Appellate Defenders, Inc. San Diego, Caiifornia 92101 233 "A" Street, #1200 San Diego, CA 92101-4010 Michael W. Riggs District Attorney C77955 County of Riverside P.O. Box 2229 4077 Main Street, 8th floor Blythe, CA 92226 Riverside, California 92501 Clerk of the Superior Court Edward R. Munoz, Esq. Riverside County 1717 S. State College Blvd. County Courthouse Suite 125 4050 Main Street Anaheim, CA 92806-6024 Riverside, California 92501 Clerk of the Court of Appeal Fourth Appellate District - Division Two 303 West Fifth Street San Bernardino, CA 92401 Each envelope was then sealed and with the postage thereon fully prepaid deposited in the United States mail by me at Santa Barbara, California, on January , 1998. I declare under penalty of perjury that the foregoing is true and correct. Executed on January , 1998 California. APPENDIX E E - 65 MaRS ea Far, 4 : plaieta yon? APPENDIX E DOSKET IN THE SUPREME COURT on ar OF THE STATE OF CALIFORNIA © SOL4 7 uturmt me CK | Mt nats H2GB 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. APPELLANT'S PRO PER SUPPLEMENTAL PETITION FOR REVIEW OF A DECISION OF THE CALIFORNIA COURT OF APPEALS FOURTH APPELLATE DISTRICT, DIVISION TWO Michael W. Riggs In pro per C77955 P.O. Box 2229 Blythe, CA 92226 E - 66 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Court of Appeal PEOPLE OF THE STATE OF CALIFORNIA, No. E019488 Plaintiff and Respondent, Super. Ct. No. Vv. CR66167 MICHAEL WAYNE RIGGS, Defendant and Appellant. APPELLANT'S PRO PER SUPPLEMENTAL PETITION FOR REVIEW OF A DECISION OF THE CALIFORNIA COURT OF APPEALS FOURTH APPELLATE DISTRICT, DIVISION TWO Michael W. Riggs In pro per C77955 P.O. Box 2229 Blythe, CA 92226 E - 67 states cited by appellant. In sum, the three strikes law in California is clearly disproportionately harsher to the applicable law in any other jurisdiction. To reiterate, as stated by our state's Supreme Court in Lynch, “if the challenged penalty is found to exceed the punishments decreed for the offense ina significant number of those jurisdictions, the disparity is a further measure of its excessiveness.” (In re Lvnch, supra, 8 Cal.3d at p. 427 (emphasis added).) Here. the California penalty exceeds the penalty in every other jurisdiction. That tact compels the conclusion that. as applied to appellant, the penalty ts unconstitutionally disproportionate to the offense, and constitutes crue! und unusual punishment under the United States and California Constitutions Clearly, under any rational interpretation of the Eighth Amendment. appellant's sentence is disproportionate tu his culpability. to the nature of his offense, and to punishment for the same offense in other jurisdictions. the three criteria articulated in Lynch. Appellant urges this court to strike his sentence and remand the case to the inal court for a new sentencing hearing. Ill THE TRIAL COURT ERRED WHEN APPLYING THE "THREE STRIKES" LAW TO APPELLANT BECAUSE THAT LAW, BY ITS EXPRESS TERMS, DOES NOT APPLY TO PRIOR STRIKES WHICH OCCURRED BEFORE THE ENACTMENT OF THE THREE STRIKES LAW!,"AND Vioc ATES THE PeoHtieiTon ___ Aeamsr Ex -Pasr faezo Law (us. Coner fet L, Seer-I0 (ce. > ; WW ITHIA, Ww, THE Meaning of, Wenge ‘ Sy ge ier 418. 2Y Atta Appellant ype ton a Sune’ 71995" the Cour of j AS issued its te) 45 The trial court applied the “three strikes” law when computing appellant's sentence of 25 years to life.* (See Penal Code $667, subd. (e)(2)(Aii).) Appellant's case ostensibly fell under the three strikes law because he had suffered four prior serious felony convictions. (See sections 667, subd. (d)(1) and 1192.7, subd. (c)(19).) Section 667, subdivision (d) governs whether a prior conviction is a strike for the purposes of the three strikes law.’ That subdivision provides, in relevant part: “Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, 4 prior conviction of a felony shall be detined as: (1) Any offense detined in subdivision (c) of Section 667.5 as a violent telony or any offense detined in subdivision (c) of Section l 192. 7 usa serious saany in as state. The decision in People v. Sipe (1995) 30 Cal. App.4th 408. rejecting this argument, as well as other challenges raised to the sentencing scheme known 4s the three strikes law. (See also People v. Green (1995) 30 Cal App.4th 280.) Nevertheless, appellant raises these arguments because. respectfully, he believes Sipe and Green were incorrectly decided, and also because it is necessary to preserve the issues tor further appellate review in light of the unsettled state of the law. . In the interests of brevity appellant will use the term “three strikes law” when referring to Assembly Bill Number 971 which chanyed the way sentences are computed for felons with one or two pnor convictions for violent or serious felonies. The three strikes law became effective on March 7, 1994. (See Stats. 1994, ch. 12, §2.) It is codified in section 667. With the enactment of Proposiuon 184 in the November, 1994 election, provisions identical to the three strikes law now are found in a new statutory section, namely section 1170.12. (Compare section 667, subd. (c) to (g) with section | 170.12, subd. (a) to (e).) ° Appellant will use the term “prior strikes” when referring to those prior convictions which trigger the application of the three strikes law. 46 ction f { section (b) 10 (i), inclusive. shall | made upon the date of that prior conviction and is — affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor... ." (Emphasis added.) Appellant submits that under the plain meaning of language from section 667, subdivision (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. The three strikes law thus cannot apply when any purported strike predates the enactment or the three strikes law. Therefore t\s three strikes law does not apply to appellant. Appellant's three prior strikes predated March 7, 1994. and no determination was made in 1985 or 1988 that the convictions were "a prior felony conviction for purposes of subdivision (b) to (i).” (Section 667, subd. (d)(1).) It is axiomatic that a court's primary task when CONStruiNng a Statute is to determine the lawmakers’ intent. (People v. Jones (1993) 5 Cal.4th 1142, 1146.) To determine that intent, courts tum first to the statute's words themselves. ([bid.) Significance should be attributed to every phrase of a statute, and a construction making some words surplusage is to be avoided. (People v. Woodhead (1987) 43 Cal.3d 1002. 1010.) If the language is clear and unambiguous there is no need for construction of a statute. (People v. Jones, supra, 5 Cal.4th at p. 1146.) “Clear statutory language no more needs to be interpreted than pure water needs to be strained,” (Holder v. Superior Court (1969) 269 Cal. App.2d 314, 317.) Courts decline to follow the plain meaning of a statute “only when it would inevitably have frustrated the manifest purpose of the legislation as a whole or led to absurd 47 E- 70 results.” (People v. Bellici (1979) 24 Cal.3d 879, 884.) Appellant submits that the express language of the relevant portion of subdivision (d) is plain.’ That language provides: “The determination of whether a prior conviction is a prior conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction. . . ." When appellant was convicted of nwo residential burglaries in 1985 and two residential burglaries in 1988. subdivisions (b) to (i) of section 667 had not been enacted. [t was impossible at those times for the court or the jury to. make a determination that the conviction would be « prior conviction for purposes of subdivisions of section (b) to (1) of section 007. as the three strikes law was enacted years in the future. it might be argued that the above quoted lunyguaye trom subdivision (d), means that the court sentencing the defendant for the pust-March 7, 1994, offense shall determine whether u prior is 4 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 the prior qualifies “shall be made upon the date of the prior conviction.” [t does not state that the determination shall be made during the proceedings in a later case by looking back in ume to the state of affairs on the date of the prior conviction. A question 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 a rule. The first purpose would be to obviate the extensive litigation which has sprung from other statutes that, while dealing with prior convictions, 6 The term “subdivision (d)” refers to subdivision (d) of section 667. 48 E- 71 did not contain a mandatory requirement that the qualifying nature of the prior be determined at the date of conviction.’ Not only has this litigation 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 litigation. Indeed, subdivision (d), as construed by appellant. avoids the precise problem inherent in the Guerrero/ Alfaro situation. i.e.. how to determine whether a prior conviction entered before the enactment of a priors statute comes within the provisions of that later-enacted statute. A second purpose would be to obviate challenges to convictions that occurred prior to March 7, 1994. on the ground that the defendant would have used different tactics and may well have obtained different results if he knew the case might result in a strike. To illustrate. take a multi-count information filed against a first time offender in 1985 charging some offenses which are violent felonies under section 667.5. subdivision (c) and some which are not. In plea negotiations there was no strong incentive to plead guilty to a nonvivient felony rather than a violent one. This is because no one knew that nine years in the future a conviction for a violent : Because the Court is aware from its own case load of the large number of cases raising issues about whether priors qualify for enhancement, appellant will not include the serpentine string cite which supports his statement. He will, however, favor the Court with a chronological list of some Supreme Court cases which discuss retrospective determinations of the status of a prior conviction. (People v. Jackson (1985) 37 Cal.3d 826; People v. Thomas (1986) 41 Cal.3d 837; People v. Equarte (1986) 42 Cal.3d 456; People v. Piper (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, 44 Cail.3d 343; People v. Myers (1993) 5 Cal.4th 1193.) 49 E- 72 felony would be a strike. However, similarly situated first time offenders facing charges from crimes committed after March 7, 1994, can take the three strikes law into consideration when negotiating a plea."® There is no compelling nor rational reason for treating similarly situated first-time offenders differently simply because one offender negotiated a plea bargain aware of the harsh possible consequences of the plea and the other offender had no knowledge of these potentially harsh consequences. The language of subdivision (d) here in issue has the effect of giving equal treatment to all offenders. A third purpose of the plain language of subdivision (d) is that it allows defendants to be deterred by the specter of enormously increased sentences for new offenses while allowing the state time.to build new prisons to incarcerate three strike offenders and to prepare tinancially for the substantial increase in costs inherent in the longer three strike sentences. it is significant to note that subdivision (d) is not the first time the Legislature has addressed 4 question related to the contempurancous determination of the nature of a conviction for purposes of later use as a prior. Case law interpreting the pre-three strikes version of section 067 consistently held that the determination of whether a conviction qualified as a serious felony was not to be made at the time of conviction but instead was to be made at a later time when the conviction was actually alleged as a prior. (People v. Sanchez (1991) 230 Cal.App.3d 768, 772-773; People v. Bovaijian (1991) 228 Cal.App.3d 771, 774-775; People v. Ybarra (1988) " There are some restrictions on plea bargaining when a defendant has suffered prior strikes (see section 667, subd. (g)). These restrictions do not apply to first time offenders facing charges for offenses which can result in a strike. 30 E - 73 206 Cal.App.3d 546, 549-550.) In 1991 the Legislature effectively abrogated this case law by enacting section 969f. That section provides that when the defendant has commited a serious felony, the accusatory pleading “may” charge it as such. Section 969f has the effect of avoiding later litigation over the serious nature of a prior by allowing the prosecutor to charge a pending crime as a serious prior. Section 667, subdivision (d), takes the matter one step further by requiring (rather than simply allowing) a determination about an offense’s nature at the time it ts tried. thus obviating the need for any future litigation on the issue. Thus this court need not fear that it will owist the Legislature's intent if it construes subdivision (d) literally. The literal language of subdivision (d) reflects a considered decision that a contemporanegus determination of a conviction’s status is better than a retrospective one and ts less likely to lead to later litigation. The Legislature meant precisely what it said in subdivision (d). While it might be argued that while the pluin language of subdivision (d) requires a determination of an offense's nature at the time of conviction, that plain language should not be followed because it inevitably frustrates the manifest purpose of the legislation. (See People v. Bellici, supra, 24 Cal.3d at p. 884.) The purpose of the three strikes law ts to “ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (Section 667, subd. (b).) However, applying subdivision (d) in accordance with its plain language does not "inevitably" (People v. Bellici, supra, 24 Cal.3d at p. 884) frustrate this purpose. The plain language of subdivision (d) delays application of the law to people like appellant. As long as the preconditions of subdivision (d) have been met, longer punishment is 51 E- 74 insured. It is worth noting the supreme court's observation that “courts must 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. Weidert (1985) 39 Cal.3d 836, 843; citation and internal quotation marks omitted.) The language in subdivision (d) not only is plain. it also is based on sound considerations of policy and taimess and does not inevitably frustrate the purpose of the three strikes law. Accordingly, that plain language must be followed. To summarize, subdivision (d) expressly provides that the provisions of section 667, subdivisions (b) to (i). apply only where there has been a determination on the date of the prior conviction that the conviction qualities for use in subdivisions (b) toi). The record is devoid of any evidence showing that determinations were made in 1985 or 1988 to the effect that the convictions would be tor purpuses of subdivisions (b) to (i) of section 667. Accordingly, the trial court erred when it sentenced appellant under the provisions of the three strikes law, and the matter should be remanded for resentencing. The new sentencing should be pursuant to sections 1170 and 1170.1, and not under the three strikes law. IV THE LEGISLATION IS UNCONSTITUTIONALLY * VAGUE AND FAILS TO GIVE ADEQUATE NOTICE OF THE SPECIFIC PUNISHMENT TO BE IMPOSED It is a fundamental precept of due process of law that an accused must have prior notice of the acts constituting a criminal violation. A recidivist must be given specific notice of the manner in which committing 52 E - 75 June 1994 201 elevate the petty theft to a felony is barred from being used under the “Three Strikes” law, according to the argument. Thus, for example, if the defendant is convicted of petty theft, and has a prior conviction for burglary and another prior conviction for forcible rape, the defendani still faces a double-the-term sentence under § 667(e)(1) for the prior rape conviction, even if defense counsel is successful in attacking the use of the prior burglary both to elevate the theft offense to a felony and to thereafter use it to further enhance the sentence under § 667(e)(2). > CDP Ch. 91, “Sentencing.” oe . (Manne Bender & Co. lac) POINT OF VIEW Gerald F. Uelmen* Three “Called” Strikes and You’re Out The first argument that should be made by any competent defense lawyer whose client is charged as either a second offender ae offender undcr the “Three Sunkes anc You're Out" o ——— predated ; essential that this issue be preserved for appeal, and that defense lawyers understand the statutory grounds for this objection. The argument which supports us on this issue is a strong one, and we can anticipate that many judges will be persuaded. A ruling that the current Three Strikes measure operates only prospectively with respect to California priors could be the key to getting a more rational alternative on the ballot in November. “Tue argument is based on the clear and unambiguous language of Penal Code § 667(d)(1), which provides: “(d) 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 scricus felony in this state. The determination of whether a prior conviction is a prior felony conviction for purposes of sub- divisions (b) to (i) inclusive, shal] be made upon * Gerald F. sre pts ob Called Aton ——, and has served Calo cade ‘Lawyer, da ha 202 E - 76 California Criminal! Defense Practice Reporter The only way to read this requirement is that, where a prosecutor seeks to use a California conviction for an of- fense listed in Penal Code § 667.5(c) (violent felonies) or in § 1192.7 (c) (serious felonies) as a prior, there must have been a determination that it was a prior for purposes of the “Three Strikes” measure on the date the conviction oc- curred. Giving the language any other meaning requires us to rewrite the words used by the legislature. The first prin- ciple of statutory construction is that words must be given their plain, ordinary meaning [see People v. Morris (1988) 46 Cal.3d 1, 15). As the California Supreme Court recently stated in Delaney v. Superior Court [(1990) 50 Cal.3d 785, 804) “It is bedrock law that if the lawmaker gives us an express definition, we must take it as we find Bese It is important that you place primary reliance on the plain meaning of this language. Do not argue that ambiguities should be construed in favor of the defendant. They never are, and the strongest argument we have is that these words are nor ambiguous, so extraneous proof of legislative intent is not appropriate. All we are asking is that the court apply the words as the “re written Nor is this a consututional argument. Arguing that priors preceding enactment could not be used because it violates ex post facto is a loser - don’t even make the argument [see People v. Jackson (1985) 37 Cal.3d 826}. Clearly, the legis- lature can authorize use of previous priors (and we will concede they did authorize use of previous priors from other states and for juvenile adjudications, in Penal Code § 667(d)(2), (3)). But they did nor do so in subdivision (d)(1), and if they wan: to do so, they will have to amend § 667(d)(1) to express a contrary intent. What we are arguing is not a strained interpretation. A requirement that a determination “shall be made” on the date of conviction is not a mere formality. Not all listed in Penal Code §§ 667,5(c) or 1192.7(c) would be priors for purposes of the “Three Strikes” measure. Section 667(h), for example, limits the use of these statutes to the form in which they existed on June 30, 1993, eight months before “Three Strikes” became law. Since that date, “b was added to the list of serious felonies in Penal Code § 1192.7(c) (effective October 1, 1993). Many of the offenses described in § 1192.7 do not precisely coincide with statutory definitions, so it may not be clear to anyone whether a particular conviction will qualify as a “strike.” Thus, it makes good sense to require sentencing judges to inform first offenders whether their convictions can be used as “strikes” in the future. Such an interpretation would also serve the deterrent function of the “Three Strikes” law. OAenkew Bender & Co. lax) \ If convicted felons are warned that their sentences can be doubled on their next felony, or transformed into a life sentence on their third felony, they are much less likely to feloni , The counter argument we can anticipate will be based on the canon of statutory construction that says language of a statute should not be given literal meaning if doing so would result in absurd results which the legislature could not have intended [see Younger v. Superior Court (1978) 21 Cal.3d 102, 113]. We should have our answers running, because there is nothing absurd about the interpretation we are presenting. The first absurdity which will be thrown in our face comes from the legislative sponsor of the “Three Strikes” measure, Assemblyman Bill Jones of Fresno. In a lemer to the editor of the Los Angeles Times, written in response to an “op-ed” I authored urging that “Three Strikes” be limited to prospective application [see “Three Strikes” and a Balk: Beneficial Stanaory Clinker, Los Angeles Times, April 25, 1994), Assemblyman Jones wrote: “AB 971 states, in part, that a prior conviction of a felony (for the purposes of ‘three strikes’) shall be defined as a conviction in another juris- diction for an that includes all of the elements of (a serious or violent felony in California). Since it would be ‘absurd and stupid’ to believe that California could place a on other states that their judges inform convicted felons of an earned ‘strike’ in another state, application of the law is clearly retroactive. Further, of the bill which deal with juvenile adjudications list four condi- tions to qualify a conviction as a prior felony, none of which require a judge to determine or inform. Clearly, application of the law is retroactive” [see ‘Letters to the Times,’ Los Angeles Times, May 7, 1994). The seapensn, of cousse, ts that Jones presses our arge- meant beyond the point we are making to make it appear absurd. We are not suggesting that prior convictions from other states cannot be used unless the judge informed the - efendant his conviction was a “strike” in California. Sec- tio1 $67(d)(2) does not impose such a requirement. Nor are we ~-guing that juvenile court judges give such a warning. . section 667(d\(3) does not require it. All we are arguing is ‘. , a determination must be made on the date of conviction ua the case of California convictions included in Penal Code $$ 667.5(c) and 1192.7(c), because § 667(d)(1) does require it It would not be irrational to require a determination on (41) convictions without imposing that requirement under Po ¥ " E - 77 June 1994 (d)(2) and (d)(3). The (d)(1) priors will cover the over- whelming majority of cases. More than 90 percent of “Three Strikes” cases will involve (d)(1) priors. Thus, the deterrent impact of the determinations will have the greatest impact under (¢d)(1). Requiring a determination in out-of-state cases would exceed the legislative power of the Califomia legis- lature, and even if it were possible, would be a useless gesture in the overwhelming majority-of cases, serving as a deterrent only for those defendants who already con- templated a move to California. With respect to (d)(3) juvenile adjudications, requiring a determination “upon the date of that prior conviction” would be nonsensical, since there is no “date of conviction” in juvenile proceedings. A juvenile adjudication is not a conviction. The rehabilitative objective of juvenile proceed- ings would also warrant a different approach than the deter- mination mandated by (d)(1). Finally, it should be noted that the unconstitutionality of (d)(3) is widely conceded, with many prosecutors publicly announcing they will not imple- ment it The severability clause of Section 667(i) will render it a nullity. The “absurdity” argument will find no support in any other provisions of the “Three Strikes” measure. All the purposes of the measure will be fully achieved by the prospective implementation required by (d)(1). The deter- rent impact wili he immediate. and does nat require the Hae vil jurlow s01in Le Houtia Webided) pate malo d Ubini pe bdoosb ida nab UD measure. Moreover, the “absurdity” argument shuuld nut be used to redraft a law simply because the redrafted measure is perceived by a judge to be an improvement over the version produced by the legislature, even if it is a product of legislative oversight. Justice Edward Panelli recently made this point quite tellingly: “In my view, the majority is not warranted in invoking the maxim of ‘absurdity’ to justify ignoring explicit statutory language, even if it does so to achieve what it perceives to be a superior result. Instead, the unambiguous statutory language chosen by the legislature should be given effect” [see People v. Brous- sard (1993) $ Cal.4th 1067, 1080 (Panelli, J. dissenting)]. A more troublesome counterargument will arise from the ruling of the California Supreme Court in People v. Jackson [(1985) 37 Cal.3d 826], which rejected an argument that the sentence enhancement provisions of Proposition 8 could not be applied retroactively to previous prior convictions. Jus- — tice Broussard’s majority opinion noted: “Section 667 plainly was intended to take ac- count of antecedent crimes; it includes in the list O4emhe~ Bender & Co. lac) ‘incorporated from Section 1192.7 crimes which were repealed prior to the effective date of the initiative. (See fn. 7, ante.) The basic purpose of the section - the deterrence of recidivism - would be frustrated by a construction which did not take account of prior criminal conduct” (see 37 Cal.3d at 833). Since the “Three Strikes” measure also uses the § 1192.7 list, and since the list still includes the “repealed crimes,” prosecutors will argue that Justice Broussard’s conclusion is equally applicable to the “Three Strikes” measure. They are wrong for three reasons. First, the issue in Jackson was whether a legislative intent to apply the measure to previous convictions could be implied. Here, we have explicit language which clearly expresses a contrary intent. Second, the deterrent purpose is nor frustrated by declin- ing to apply the measure to previous convictions, because, unlike Proposition 8, the “Three Strikes” measure mandates a determination to be made on the date of the prior convic- tion that will itself further the deterrent purpose. Finally, the factual predicate of Justice Broussard’s argu- ment is to serious question. Section 1192.7 does not identify any offenses by reference to statutory provisions. Tn farkion itself. the Fount approved the application Af Ind, Wve) Hhiquielllcit M etilinicetnbatita WU teéwldella though there was no such offense as “residentlal burglary,” and the element of the residential target was supplied by >. extraneous proof. The two “repealed” crimes which were teferred to in Jackson were assault by a life prisoner on a non-inmate, apparently based on Penal Code § 4500 prior to an amendment in 1977 which eliminated a distinction between inmates and non-inmates, and assault with intent to commit robbery, deleted from the “assault with intent” provisions of Penal Code § 220 in 1978. Justice Broussard’s reading of these crimes vut of the list as “repealed” was inconsistent with his ruling to accommodate “residential burglary.” Both assaults by prisoners and assaults with intent to rob are still crimes in California; it’s just that the non-inmate status of the victim or the intent to rob will have to be established by extraneous evidence. The inclusion of these offenses thus adds nothing to the determination whether retroactivity was intended or not. What the current “Three Strikes” law really creates is 2 regimen of three called strikes and you’ re out. If California strikes were not called as they occurred, they cannot be used. That is what the law says, and unless our courts are ready to rewrite statutes, that is the way it should be applied. E- 78 —___. The Cairo Theee Sreires As tYypligo _— —_.....To. Derewpanrs Seutewce oF 25° 70 Life __ C _....._.forR fee“Theee Greiges’ Pees Cusnrmres ___ A. VWiotatioN OF THE PROHIBITION BGCAINS __..__._ 8B Ex-fosr-facro Laws Unoee THE YS. Conszirurian Aeriae & y Seczran (0, Clause | ——....... WITH THE MERWE 2 WEAVER v. GeAyany siitnisinininoss hci Ten Cuiticer v .F/o“12K (97) #92 U.S. 923) BER ARS Ania FRENTE cee! —-—. .... STRIKES OUT OF 4 PREVIOUS ConvieTToM(® IW Ger) w Case No&): i Sis ceakasncucincccge A a CuwTY (3). BEFORE The —....... ENACTMENT OF THE VoTER. WITIATIVE “THREE _STRIKES PERSUANT Peral Gae $667 Gad); Real Code $1170.12 - passe! inte Law mw 1PP7Y. ee tes. Supreme Cut has ofetc! & _ view as +o what comsrzures Ex-Rsr Fah _ _. ARIE mee IN__7THE ABOVE CASES AM” S73 £,ED-20.1/%6 - eee ee . .. 2. ft Ere Bsr Fecre law 43 one tf Appled iy __. ... Ferroaerivety would eauet «a "Signi hicand Laeeery Interest or _hoss % yee a ee ee _ Dekendavct Meu) Care involves. a MOA- S€KLOUSCTR) fon. violent Felony which abseut Yhu's /97¥ Three Srrites ee - rr -_ _— en ene —-—-= ee eek — eee ae _—_— OO —— a —_ DeRudarvt m” aectwe _ frobamm_or a. 2... County Tail Ferm of Less a year upon He Fresz—. . . Offense, onipalayem 7eem) y OR. aed 2 offemat mary Cnn monks » 2 fyenca, OL Mansmum of sreevo E - 79 Zz 4 on Ca L foarase -_ (ode alae pra vcden oN E - 80 J a 4 Reci Divi srx _statutes ts pravide fac 1. on a Cnhomcornounta which Bo aot vidlate VU: \\ / e _ Sa Double hs Baas team” Law mn Cl Bewa ~ ~ However Firs Meu bow 2 Mar — _ Qh enhaucemeut fore a von~ Wwoleat t lon , of Truce Yho Maxemum Toon oe even Tes Timi - This__Sya7uTe in volv es a “Y, Gg nithicavt-Los Ss “a of Ligecry be K lex m_ot_@ Read visz— * Sragure when a DeRndeut & Sustuch Pa a ae ee eS mm Me ey of _2 Fyaxurte_Lire_ a and whore hic Fresr broke Board Meaning a will be in a Muriinives_at 20 goasa. thes A One Sentence to Muvder may ot a Serrtouee eelige kle | o ~f ¥ y ae _ This Law was wor-_voTed | on. to be applied. arate Retroachvely. a sks ah ta igual tis eemmibtiianinas absudiatioe Setdibiivne DEFEWDANT ALSO REweEs UPON ''PEMOANT” _. _. JUrRisdic7I0w jmPLIC/TY. AND EXPRESSCY ~ — — _.. _ STATEP WITHIN THE THECEE STRIKES STH7WJE._. . __.. THAT ITS USE ANOT_ONLY. VIOLATES THE *....-__. _.. _ Peowrbitten AbAINST. EX Post. FA ceonvichon oft kb Be koudowt i notiGeD, and will be able ~o make... oe enowitng A inte Unger” j adgernrordy of Wan, Yo | — Same cenaidurstiosy a0 discasseD in Byhkin v Ala lame 3977 U,S$.235,243-¥{69), ¥. Blackbury 276 Fi aL G) 12) -/22 (85), befre pleading oF gosry _. # Triad, amd upon. comuction. r .. fi cee ss eee wees Quah hawt Line hel hat a stitches mut be - ___onetraed.un rré meszztevvoraile we doled amare : orelinory Sendg ¢ con’ Tre Single Web la or UPI hed agen ck Shin Convichén i. a “Sreuce” unddu ths Three Sfrbro laut ee ee ee ee -- me ee ee es Hes “ Deter miratrion af whethin a pret '® Cmutchen shell be a priar f~ Vhs 2 pusposes of a ‘sree shall Le mode - fe PS date af YRat Priam Gauictin ; This 4s woz 4 Ferma cHive sym rnement- Gund would pot violate Sx Bar facts lot ; p ahs B77 1S Hs Exe es Deferdaict a LY er | ye | " 4 E- 82 y bows undu tho Us. Grek Lt TF, wect/o,ch 1 One. Ha IY th AnenLouout is Vilared ax alleged — Rela oe ocd Di ae _ Applying Yus fo ratencctesly a bo thea Cx 2224 | wording oL the Srukicte robecu%. - *. _s “RiLa SF. Y often of « Wolatern a Ve SV TH KarviecMtesut 4.5: 2 E - 83 ; DECLARATION OF SERVICE I, undersigned say: I am over 18 years of age, employed in the County of Santa Barbara, California, in which county the with-in mentioned delivery occurred, and not a party to the subject cause. My business address is 140 East Figueroa Street, Santa Barbara, California. I served the Appellant's Pro Per Supplemental Petition for Review by placing a copy thereof in a separate envelope for each addressee named hereafter, addressed to each such addressee respectively as follows: Office of the Attorney General 110 West "A" Street Suite 700 Appellate Defenders, Inc. San Diego, California 92101 233 "A" Street, #1200 San Diego, CA 92101-4010 Michael W. Riggs | District Attorney c77955 County of Riverside P.O. Box 2229 4077 Main Street, 8th floor Blythe, CA 92226 Riverside, California 92501 Clerk of the Superior Court * Edward R. Munoz, Esq. Riverside County 1717 S. State College Blvd. County Courthouse Suite 125 4050 Main Street Anaheim, CA 92806-6024 APPENDIX F Riverside, California 92501 Clerk of the Court of Appeal Fourth Appellate District - Division Two 303 West Fifth Street San Bernardino, CA 92401 Each envelope was then sealed and with the postage thereon fully prepaid deposited in the United States mail by me at Santa Barbara, California, on January , 1998. I declare under penalty of perjury that the foregoing is true and correct. Executed on January , 1998, at Santa Barbara, California. F- 64 ” OFFICE COPY & F - 85 APPENDIX F . FERAL — IN THE COURT OF APPEAL OF THE STATADECRNEORATS | cee Table of Contents FOURTH APPELLATE DISTRICT, DIVISION TWO ~--. ha Page , ; ‘at a j ; - Sda9 67 STATEMENT OF THE CASE 1 THE PEOPLE OF THE STATE OF CALIFORNIA, pt signe Vg I Se ‘ Plaintiff and Respondent, E0) 9488 /- HS 17 sid —.. Baithg Defense 3 | APPELLANT'S CONTENTIONS 4 MICHAEL WAYNE RIGGS, i. oo bg ES J JUL 18 1997 RESPONDENT'S ARGUMENT 4 Defendant and Appellant. I ARG NT 5 AUR? OF APPEAL FQURTH DISTRICT IL APPELLANT WAIVED THE ISSUE OF a County oe gh ee No. — PROSECUTORIAL 5 e Honorable Dennis naghy, Judge ey . A. The Prosecutor’s Alleged Misconduct in Closing Argument : 5 B. Appellant Waived the Issue of Misconduct With RESPONDENT'S BRIEF the ion of the Last Paragraph of the People’s Argument 7 C. The People’s Closing Argument Was Proper and the Admonition Cured Any Potential Prejudice. 8 DANIEL E. LUNGREN Attorney General D. Any Error Was Harmless and Not Prejudicial In Light of the Overwhelming Evidence of Guilt and the Lack GEORGE WILLIAMSON af o Datenee 11 Chief Assistant Attorney General GARY W. SCHONS Il. APPELLANT’S SENTENCE IS NOT CRUEL Senior Assistant Attorney General AND/OR UNUSUAL PUNISHMENT 13 ROBERT M. FOSTER speting Dep Arr Oot ML APPELLANT IS ENTITLED TO ADDITIONAL =. BAG S. NELSON Deputy Attorney General CONCLUSION 26 State Bar No. 150920 110 West A St., Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619)645-2207 Fax: (619)645-2191 Attorneys for Respondent COP y Cases Bordenkircher v. Hayes (1978) 434 U.S. 357 Chapman v. California (1967) 386 US. 18 17 L.Ed.2d 705 87 S.Ct. 824 Harmelin v. Michigan 501 U.S. 957 111 S.Ct. 2680 115 L.Ed.2d 836 (1991) In re DeBeque (1989) 212 Cal.App.3d 241 In re Lynch (1972) 8 Cal.3d 410 In re Rosencrantz (1928) 205 Cal. 534 (i v. Ayon (1996) 46 Cal.App.4th 385 ople v. Berryman 1993) 6 Cal 4 4th 1048 rag v. Bestelmeye 5) 166 Cal. yo 3d 520 a v. Bolton (1979) 23 Cal.3d 208 ople v. Bonin (19 ) 46 Cal.3d 659 le v. Coo (1986) 43 Cal App. 4th 815 FP - 86 20 11, 12 15 14, 17, 19, 23 14, 16, 17, 23 17, 19 13, 16, 17 10 17 13 FP - 87 Table of Authorities, cont’d People v. Crooks (June 10, 1997, C023565) Cal. Ap 97 Daily Penal D. A.R. 7328 People v. Daniels (1969) 71 Cal.2d 1119 ob le v. Dillon 3) 34 Cal.3d 441 le v. Green 980) 27 Cal.3d 1 v. Haskett re 30 Cal.3d 841 People v. Heldenburg (1990) 219 Cal.App.3d 468 le v. Hill (1995) 37 Cal.App.4th 220 (1985) ‘0. App.4th 1397 (1988) 46° 46 Cal.3d 585 le v. Jones (1 15 Cal.4th 119 le v. Karsai 2) 131 Cal.App.3d 224 a 217 15 13, 14, 16, 19 11 F- 88 People v. Ratliff (1987) 189 Cal.App.3d 696 10 (19 le v. Ross 4) 28 Cal.App.4th 1151 13 = v. Sassounian (1986 as Cal.App.3d 361 cert. 481 Us 1034 107 S.Ct. 1977 9 People v. Silva . (1953) 41 Cal.2d 778 9 —_ v. Strickland (1974) 11 Cal.3d 946 9 yee v. Watson (1956) 46 Cal.2d 818 11 eo v. Weaver (1984) 161 Cal.App.3d 119 17, 19 People v. Weddle (1991) 1 Cal.App.4th 1190 13, 14, 17, 19 — v. Wein (1958) 50 Cal.2d 383 9 People v. Young (1992) 11 Cal.App.4th 1299 19 Robinson v. California 1962) 370 U.S. 660 L.Ed.2d 758 82 S.Ct. 1417 23 Rummel v. Estelle or 445 U.S. 263 .2d 382 100 S.Ct. 1133 18, 20 Solem v. Helms 463 U.S. 277 103 S.Ct. 3001 77 L.Ed.2d 637 (1983) 15 iv F - 89 Table of Authorities, cont’d United States v. (1976) 427 U.S. of United States v. tiny 1985) 473 U. 6s .2d 481 105 8. Ct. 3375 Constitutional Provisions California Constitution art. I, § 17.10 United States Constitution Eighth Amendment Fourteenth Amendment Statutes Alabama Code § 13A-5-9 Ariz. Rev. Stat. Ann. § 13-604 Arkansas Code Ann. § 5-4-501 Colorado Rev. Stat. § 16-13-101 Connecticut Gen. St~t. Ann. § 53a-40 Delaware Code Ann. tit. 11, § 4214) Florida Stat. Ann. § 775.084 Georgia Code Ann. § 17-10-7 11 11 14 14, 15 14 20, 21 20, 21 F- 90 able of Autho cont’ Hawaii Rev. Stat. § 706-606.5 ee ts | Health and Safety Code § 1135 Idaho Code § 192514 Ill. Ann. Stat. ch. 720, § 33B-1 Indiana Code § 35-50-2-8.5 Kansas Stat. Ann. § 21-4504 Kentucky Rev. Stat. Ann. § 532.080 Louisiana Rev. Stat. Ann. § 15:529.1 Maryland Ann. Code art. 27,§ 643B a Comp. Laws Ann. § 769.12 Mississippi Code Ann. § 96-19-83 Missouri Ann. Stat. § 558.016 Montana Code Ann. § 46-18-501) Nebraska Rev. Stat. § 29-2221 Nevada Rev. Stat. § 207.010 New Hampshire Stat. Ann. § 651:6 20, 21 P - 91 Table of Authorities, cont’d New Jersey Stat. Ann. § 2C:44-3 § 2C:43-7 New York Penal Law § 70.08 North Carolina Gen. Stat. § 14-7.1 § 14-7.6 North Dakota Cent. Code § 12.1-32-09 Oklahoma Stat. tit. 21, § 51 Oregon Rev. Stat. 161.725 [California] Penal Code 2900.5 2933.1, subd. (c) § 4019 Rhode Island Gen. Laws § 12-19-21 South Carolina Code Ann. § 17-25-45 South Dakota Codified Laws § 22-7-8 Tennessee Code Ann. § 40-35-106 § 40-35-107 § 40-35-108 20 20 F - 92 ab uthorit cont’ Texas Penal Code Ann. § 12.42 Utah Code § 76-8-1001 Vermont Star. Ann. tit. 13, § 11 Virginia Code § 19.2-297.1 Washington Rev. Code Ann. § 9.92.090 West Virginia Code § 61-11-18 Wyoming Stat. § 6-10-201 Other Authorities 3 Witkin & Epstein Cal. Criminal Law (2nd ed. 1989) Punishment for Crime, § 1336 Ballot Pamphlet Analysis of Prop. 184 by Legislative Analyst Gen. Elec. (Nov. 8, 1994) ° . viii 20 20 20, 22 20 20, 22 20, 22 20, 22 13 PF - 93 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION TWO THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, E019488 v. MICHAEL WAYNE RIGGS, Defendant and Appellant. STATEMENT OF THE CASE An amended information filed on May 8, 1996, in Riverside County Superior Court charged appellant with petty theft with a prior (Pen. Code, § 666; count 1) and possession of a hypodermic needle and syringe (Bus. and Prof. Code, § 4149; count 2). It was alleged that appellant had served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). It was further alleged that appellant had been convicted of four strike priors within the meaning of Penal Code sections 667, subdivisions (c) and (e), and 1170.12, subdivision (c). (CT 61-64.) A jury found appellant guilty of both substantive offenses. (CT 196.) The court found the prior conviction allegations to be true. (CT 249A-250.) On November 26, 1996, appellant was sentenced to state prison for a term of 25 years to life on count 1 under the Three Strikes Law and a concurrent term of 90 days to county jail on count 2. The prior prison term enhancements were stricken. (CT 328; RT 333.) F - 94 Appellant filed his notice of appeal on November 26, 1996. (CT 327.) STATEMENT OF FACTS On October 15, 1995, Ann Lopez was working as a clerk at Albertson’s Supermarket in Banning. At approximately 4:30 p.m., she brought the item [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0288%3A4. Public record. Not legal advice.