Appendix — Lockyer v. Andrade

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aos OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

BILL LOCKYER, Attorney General of the State of California;

ERNEST B. ROE, Warden, Petitioners-Appellees,

Vv.

LEANDRO ANDRADE, Respondent-Appellant.

ON PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA SUPREME COURT

APPENDICES TO PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

ROBERT R. ANDERSON

Chief Assistant Attorney General

GARY W. SCHONS

Senicr Assistant Attorney General

CARL H. HORST

Supervising Deputy Attorney General

DOUGLAS P. DANZIG

Deputy Attorney General

Counsel of Record

110 West “A” Street, Suite 1100

San Diego, A 92101

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2285

Fax: (619) 645-2271

Counsel for Petitioners-Appellees

6600

APPENDIX A

United States Court of Appeals

For the Ninth Circuit’s

Opinion

APPENDIX B

United States District Court

Central District of California

Western Division’s

Judgment

APPENDIX C

United States District Court

Central District of California

Western Division’s

Order Adopting Report and

Recommendation of United States

Magistrate Judge

APPENDIX D

United States District Court

Central District of California

Western Division’s

Report and Recommendation of United States

Magistrate Judge

APPENDIX E

California Court of Appeal

Fourth Appellate District

Division Two’s Opinion

APPENDIX F

California Supreme Court

Order Denying Petition for Review

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Sn ee Ee aloe oe

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IN THE SUPREME COURT OF THE UNITED STATES

No.

ERNEST B. ROE, Warden, Petitioner-Appellee,

LEANDRO ANDRADE, Respondent-Appellant.

DPD:nms

SD1999F A033

Dated: January 28, 2002

Respectfully submitted,

BILL LOCKYER

Attorney General of the State of

California

ROBERT R. ANDERSON

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

CARL H. HORST

Supervising Deputy Attorney General

. \

4 :

DOUGLAS P. DANZIG 2

Deputy Attorney Gerieral

Counsel of Record

Counsel for Petitoner-Appellee

APPENDIX A

[Filed 11/2/2001]

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEANDRO ANDRADE, )

Petitioner-Appellant, ) No. 99-55691

v. ) D.C. No. CV 98-

) 6776-CAS (SH)

ATTORNEY GENERAL OF )

THE STATE OF CALIFORNIA; ) OPINION

ERNEST B. ROE, )

Warden, )

Respondents-Appellees. )

)

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted

May 25, 2001--San Francisco, California

Filed November 2, 2001

Before: Mary M. Schroeder, Chief Judge, and

Joseph T. Sneed and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez;

Concurring and Dissenting Opinion by Judge Sneed

SUMMARY

Criminal Law and Procedure/Sentencing

The Court of appeals reversed a judgment of the district

court. The court held that the Eighth Amendment proscribes a

sentence of 50 years to life under California’s Three Strikes

Law for two shoplifting offenses involving nine videotapes

worth a total of $153.54 by a defendant with several previous

convictions for non-violent offenses.

Appellant Leandro Andrade, a non-violent recidivist, was

convicted in the Superior Court of California of two counts of

petty theft for shoplifting nine videotapes worth a total of

$153.54 from two K-Mart stores. California generally treats

such offenses as misdemeanors, each punishable by up to six

months in county jail and up to a $1,000 fine. However,

because Andrade had been convicted of several prior

offenses—all non-violent—his petty thefts were first enhanced to

felonies as allowed under the California Penal Code, and then

enhanced again to third and fourth strikes under California’s

Three Strikes and You’re Out Law (the Three Strikes Law).

Andrace’s three 1983 burglary convictions were charged as his

first two strikes. Andrade was sentenced to 25 years to life for

each petty theft with a prior conviction, to be served

consecutively as required by the Three Strikes law. Andrade

would not become eligible for parole until 2046, after serving

5G years, when he would be 87 years old.

The California Court of Appeal affirmed Andrade’s

conviction and sentence, rejecting Andrade’s claim that his

sentence was cruel and unusual punishment under the Eighth

Amendment. The California Supreme Court denied Andrade’s

petition for review without comment.

Andrade filed a pro se petition for a writ of habeas corpus

in federal district court. The district court denied his petition,

adopting the magistrate judge’s report and recommendation that

stated that the state court’s cc-iciusions were reasonable

applications of federal law. Andrade deposited in the prison

nail system a Motion for Order Extending Time for Appeal,

s. ‘ting that “Leandro Andrade respectfully requests . . . and

ad. © ~ 60 days in which to file his notice of appeal.” The

distric: court denied the motion. Andrade deposited a Notice of

Appeal in the prison mail system. the district court entered an

order denying Andrade a certificate of appealability.

Andrade appealed his sentence. The court of appeals

granted him a certificate of appealability to raise his Eighth

Amendment claim.

[1] A timely motion for extension of time to file a notice

of appeal may be considered the functional equivalent of a

notice of appeal provided it gives notice of the three elements

required by the Federal Rules of Appellate Procedure.

Andrade’s motion for extension of time satisfied the three

notice requirements: it identified the judgment at issue, it

specified the court to which the appeal would be taken, and it

was delivered to both the district court and the opposing party.

[2] The Eighth Amendment to the United States

Constitution prohibits the infliction of cruel and unusual

punishments. The issue was whether this amendment

proscribed a sentence of 50 years to life for two shoplifting

offenses involving nine videotapes worth a total of $153.54 by

a defendant with several previous convictions for non-violent

offenses.

[3] The Supreme Court has held that a proportionality

analysis under the Eighth Amendment must be applied to terms

of imprisonment. The Court established three objective criteria

to guide the proportionality analysis under the Eighth

Amendment: (1) the gravity of the offense and the harshness of

the penalty; (2) the sentences imposed on other criminals in the

same jurisdiction; and (3) the sentences imposed for

commission of the same crime in other jurisdictions. [4]

Following the three-factor test, it had to be concluded that: (1)

Andrade’s punishment of 50 years to life raised an inference of

gross disproportionality when compared to his two petty thefts

of nine videotapes worth $153.54, even in light of his prior

felony and misdemeanor convictions; (2) Andrade’s sentence

was substantially more severe than sentences for most violent

crimes in California and is unusual even when compared to

other applications of California’s Three Strikes law; and (3)

Andrade could not have received such a severe sentence

anywhere else, with the possible exception of Louisiana.

Andrade’s sentence was so grossly disproportionate to this

crime that it violated the Eighth Amendment to the United

States Constitution.

[5] Under AEDPA, relief may be granted only if the state

court’s decision was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by

the Supreme Court of the United States. [6] The law governing

the application of the Eighth Amendment to non-violent

offenders sentenced to life imprisonmenit was clearly established

by the time of the California Court of Appeal’s decision. [7]

The state court’s failure to address applicable precedent yielded

an unreasonable conclusion that a non-violent _recidivist

sentenced to such a severe sentence for two misdemeanor

offenses did not raise an inference of gross disproportionality.

Its conclusion that Andrade’s sentence did not violate the

Eighth Amendment was irreco -ilable with Supreme Court

precedent and thus constituted clear error. [8] Andrade’s

sentence of life imprisonment with no possibility of parole for

50 years was grossly disproportionate to his two misdemeanor

thefts of nine videotapes, even in consideration of his history of

non-violent offenses. The judgment of the district court had to

be reversed.

Judge Sneed concurred in part and dissented in part,

writing that Andrade’s sentence was not an unreasonable

application of clearly established federal law, because a rational

basis existed for the state of California to conclude that the

interests of society were best served by Andrade’s incarceration

for a minimum of 50 years.

COUNSEL

Erwin Chemerinsky, University of Southern California Law

School, Los Angeles, California, for the petitioner-appellant.

Robert M. Foster, Deputy Attorney General, and Douglas P.

Danzig, Deputy Attorney General, San Diego, California, for

the respondents-appellees.

OPINION

PAEZ, Circuit Judge:

_ Appellant Leandro Andrade was convicted in the Superior

Court of California of two counts of petty theft for shoplifting

a total of nine videotapes from two K-Mart stores. California

generally treats such offenses as misdemeanors, each punishable

by up to six months in county jail and up to a $1,000 fine.

However, because Andrade had been convicted of several prior

offenses -- all non-violent -- his petty thefts were first enhanced

to felonies under California Penal Code § 666, and then

enhanced again to third and fourth strikes under California's

Three Strikes and You're Out Law, California Penal Code §§

667 and 1170.12 ("the Three Strikes law"). As a result,

Andrade, a non-violent recidivist who twice shoplifted

merchandise worth a total of $153.54, received a life sentence

in prison with no possibility of parole for 50 years.

In this appeal from the denial of his habeas petition under

28 U.S.C. § 2254, Andrade argues that his sentence violates the

Eighth Amendment's prohibition against cruel and unusual

punishment. Four justices of the United States Supreme Court

have agreed that the “unique quirk " in California's Three

Strikes law that permits misdemeanor conduct to be punished

with severe indeterminate sentences raises a substantial Eighth

Amendment question. Riggs v. California, 525 U.S. 1114, 119

S. Ct. 890 (1999) (memorandum opinion by Justice Stevens,

joined by Justices Souter and Ginsburg respecting the denial of

the petition for writ of certiorari)./

We hold that the California Court of Appeal unreasonably

applied clearly established United States Supreme Court

precedent when it held, on Andrade's direct appeal, that bis

sentence did not violate the Eighth Amendment's prohibition

against cruel and unusual punishment. Our decision does not

invalidate California's Three Strikes law generally. Rather, we

conclude that it is un-constitutional only as applied to Andrade

because it imposes a sentence grossly disproportionate to his

crimes.

I. BACKGROUND

1. Riggs concerned an Eighth Amendment challenge by a

recidivist defendant sentenced to 25 years to life after stealing a bottle

of vitamins from a supermarket. 525 U.S. 1114, 119 S. Ct. at 891.

Riggs was convicted of petty theft with a prior (Cal. Penal Code §

666), which counted as his "third-strike" offense under California's

Three Strikes law. The California Court of Appeal affirmed Riggs’

sentence, and the California Supreme Court denied his petition for

review. In his memorandum opinion, Justice Stevens, joined by

Justices Souter and Ginsburg, noted that the Eighth Amendment issue

presented was "obviously substantial, particularly since California

appears to be the only State in which a misdemeanor could receive

sucha severe sentence." Jd. Nevertheless, he concluded that the issue

should first be addressed by a lower federal court or the California

Supreme Court, stating that Riggs could assert his claim in a petition

for a writ of habeas corpus "since [he] is asking us to apply a settled

rule of Eighth Amendment law." /d. at 892. Justice Breyer wrote

separately, agreeing with Justice Stevens that Riggs raised a" serious

question" but dissenting from the denial of certiorari. Jd.

A. California's Three Strikes Law

California's Three Strikes law consists of a pair of

substantively identical statutes both enacted in 1994, one by the

California Legislature, Stats. 1994, ch. 12, § 1, adding California

Penal Code § 667(b)-(i), and one by a ballot initiative,

Proposition 184, § 1, as approved by voters, Gen. Elec. (Nov. 8,

1994), adding California Penal Code § 1170.12. See generally

In re Cervera, 16 P.3d 176, 177 (Cal. 2001).

The purpose of the law is to impose longer terms of impris-

onment on defendants with prior qualifying felony convictions

or "strikes." Jd. at 179. Under the law, only "serious" or

"violent" felonies, as defined in California Penal Code §

1192.7(c) and § 667.5(c) respectively, qualify as prior strikes.

Cal. Penal Code §§ 667(d)(1), 1170.12(b)(1). The" triggering”

(i.e., principal) offense, however, may be any felony under

California law. Cervera, 16 P.3d at 177 ("the Three Strikes law

governs when 2 defendant is convicted of a felony or ‘strike’ of

any kind") (emphasis added). This includes a so-called

“wobbier" offense (which can be either a misdemeanor or

felony) when charged and sentenced as a felony. People v.

Terry, 54 Cal. Rptr. 2d 769, 770-71 (Ct. App. 1996) (holding

that the wobbler offense of petty theft with a prior, when

charged and sentenced as a felony, may count as a third strike).

Under the "second-strike" provision of the Three Strikes

law, when a defendant with one prior strike is convicted of any

felony, the sentencing court must impose a sentence twice as

long as the sentence the defendant would have otherwise

received. Cal. Penal Code §§ 667(e)(1), 1170.12(c)(1); Cervera,

16 P.3d at 177. When a defendant with two prior strikes is

convicted of any felony, the "third-strike" provision mandates

a sentence of at least 25 years to life (i.e., an indeterminate life

sentence with eligibility for parole after serving no fewer than

25 years). Cal. Penal Code §§ 667(e)(2)(A), 1170.12(c)(2)(A).

In addition to the fact that the triggering felony need not be

"serious" or "violent," several other features of California's

Three Strikes law combine to make it particularly severe. First,

a defendant may be considered to have two prior strikes even

though he was convicted of both qualifying offenses in a single

judicial proceeding. People v. Askey , 56 Cal. Rptr. 24 782, 785

(Ct. App. 1996). Second, prior strikes need not be violent

offenses as long as they qualify as "serious" (e.g., a Tesidential

burglary where the burglar was unarmed and residents Were not

home would be considered a prior strike). Cal. Penal Code §§

1192.7(c)(18), 460(a). Third,"serious" or "violent" felony

convictions imposed prior to the law's enactment in. 1994 can be

charged as strikes, People v. Kinsey, 47 Cal. Rptr. 24 769, 775

(Ct. App. 1995), as may a defendant's equivalent COMvictions

received in another jurisdiction, California Pena! Code §§

667(d)(2), 1170.12(b)(2), and certain convictions 2 defendant

received as a juvenile, California Penal Code §§ ©67(4)(3),

1170.12(b)(3). Fourth, there is no "washout" period @fter which

prior qualifying convictions will no longer be Counted as

strikes.” People v. Martinez, 84 Cal. Rptr. 2d 638, 046 & n.9

(Ct. App. 1999) (citing Cal. Penal Code § 1170.12(a))(3)). Fifth,

defendants with prior strikes who are convicted Of current

multiple felonies committed on different occasions Must serve

consecutive sentences. Cal. Penal Code §§ 667(c)(6),

1170.12(a)(6); People v. Ingram, 48 Cal. Rptr. 2d 256, 264 (Ct.

App. 1995) ("Since each felony count of whict! defendant

currently stands convicted arises from separate ‘residential

burglaries, the mandatory minimum term of 25 yrs to life

must be imposed consecutively for each count, for 4 ™nimum

_.. term of 50 years."), disapproved on other grounds by People

v. Dotson, 941 P.2d 56, 63 (Cal. 1997). Finally, # defendant

sentenced to an indeterminate life sentence will not be eligible

for parole until he has served his entire mandatory ™nimum

2. The California Supreme Court has held, However, that

judges have reviewable discretion to not consider, in the interest of

justice, an otherwise qualifying conviction as a strik®- People v.

Superior Court (Romero), 917 P.2d 628, 647 (Cal. 199):

term. Cervera,16 P.3d at 181 (holding that a third-strike

defendant's mandatory minimum term of 25 years may not be

reduced with good-time credits).

B. Facts And Procedural History

According to the probation officer's presentence report,

Andrade is a longtime heroin addict with a history of

convictions for non-violent offenses. The report indicates that

Andrade was convicted in 1982 of a misdemeanor theft offense,

for which he served six days in county jail and received twelve

months of probation.” In 1983, Andrade pled guilty in a

consolidated proceeding to three counts of first degree burglary

(residential burglary) in violation of California Penal Code §

459.* In 1988, Andrade was convicted in federal court of

“transportation of marijuana, " a felony. In 1990, Andrade was

convicted in state court for a petty theft offense. Later that year,

he was again convicted in federal court of another felony charge

of "transportation of marijuana." Finally, in 1991, Andrade

received a parole violation for escape from federal prison. All

3. Without explanation, the State excludes Ancrade's 1982

misdemeanor conviction in its recounting of his criminal history. We

include it here because it appears in the presentence report upon

which the sentencing court presumably relied. The report also shows

that Andrade was sentenced to drug diversion at the same time as this

misdemeanor conviction.

4. The presentence report indicates that Andrade pled guilty

to six, not three, counts of first-degree burglary. Both the trial court

and the state court of appeal, as well as the State in its briefs,

however, indicated that Andrade had been convicted of only three

burglaries. We assume likewise.

5. The presentence report indicates that Andrade was

sentenced to eight years for his 1988 federal conviction and 2,191

days (six years) for his 1990 federal conviction. It appears from the

report, however, that Andrade served less than one and one-half years

for the 1988 conviction and less than two and one-half years for the

told, Andrade had been convicted of five felonies and two

misdemeanors--all non-violent--prior to his current convictions.

On November 4, 1995, Andrade exited a K-Mart store with

five videotapes, worth $84.70, stuffed inside his pants. Two

weeks later, he shoplifted another four videotapes, worth

$68.84, from a different K-Mart store. In both instances, store

personnel stopped Andrade as he exited the store and recovered

the merchandise.

California classifies both of these offenses as petty theft, a

misdemeanor punishable by up to six months in county jail and

up to a $1,000 fine. Cal. Penal Code § 490; see also Cal. Penal

Code § 487 (defining grand theft as theft over $400). Because

Andrade had a previous misdemeanor theft conviction in 1990,

however, his shoplifting offenses were charged as two counts of

petty theft with a prior, pursuant to California Penal Code §

666. Petty theft with a prior is a so-called "wobbler” offense,

punishable either as a misdemeanor with up to one year in

county jail or as a felony with up to three years in state prison.

Cal. Penal Code § 666 ("punishable by imprisonment in the

county jail not exceeding one year, or in the state prison"); Cal.

Penal Code § 18 (specifying sentences of "16 months, or two or

three years" for any crime "punishable by imprisonmeat in a

state prison" where no other penalty is specified by law); Terry,

54 Cal. Rptr. 2d at 770-71. Prosecutors have discretion to

charge petty theft with a prior as either a misdemeanor or a

felony, and the trial court has reviewable discretion to reduce

this charge to a misdemeanor at the time of sentencing. People

v. Superior Court (Alvarez), 928 P.2d 1171 (Cal. 1997) (holding

that a trial court's discretion under Cal. Penal Code § 17(b) to

reduce a“wobbler" offense is not eliminated by the Three

Strikes law but is reviewable).

1990 conviction. The report offers no explanation for this nor does it

provide any further details about these offenses.

In Andrade's case, the prosecutor elected to charge his two

petty thefts with a prior as felonies, thereby implicating the

Three Strikes law. Andrade's three 1983 burglary convictions

were charged as his first two strikes. His petty thefts were

charged as his third and fourth strikes.

The trial court bifurcated Andrade's trial. In the first

proceeding, the jury found him guilty of two counts of petty

theft with a prior under California Penal Code § 666. Before the

jury's verdict, the court denied Andrade's motions to reduce the

charges to misdemeanors and to strike the prior convictions. In

the second proceeding, the same jury found that he had been

convicted of three counts of first degree residential burglary on

April 26, 1983. On April 24, 1996, the court sentenced Andrade

to 25 years to life for each petty theft with a prior conviction, to

be served consecutively as required by the Three Strikes law.

Cal. Penal Code §§ 667(c)(6),1170.12(a)(6). Andrade will not

become eligible for parole until 2046, after serving 50 years; he

will be 87 years old.

Andrade appealed to the California Court of Appeal, which

affirmed his conviction and sentence on May 13, 1997. In an

unpublished opinion, the court rejected, among other arguments,

Andrade's claim that his sentence was cruel and unusual under

the Eighth Amendment. The California Supreme Court denied

Andrade’s petition for review without comment.

Subsequently, Andrade filed a timely pro se petition for a

writ of habeas corpus in federal district court under 28 U.S.C.§

2254. He raised several constitutional issues, including

violation of his Eighth Amendment right. The district court

denied his petition in a two-sentence order adopting the

magistrate judge's Report and Re-commendation which stated

that "the state court['s] conclusions . . . were reasonable applica-

tions of federal law." The district court entered judgment on

February 19, 1999.

On March 17, 1999 (25 days later), Andrade deposited in

the prison mail system a Motion for Order Extending Time for

Appeal, in which he requested a 60-day extension of time to file

his notice of appeal. In a supporting declaration, Andrade

explained that he needed the extra time to conduct research in

the prison library, to which he was permitted access for only

two hours each Friday and Saturday.

In a memorandum order, the district court denied

Andrade's motion, stating in relevant part:

In his Motion, petitioner claims that he has been

denied adequate access to the prison law library to

prepare his notice of appeal. [citation omitted } This

court is not persuaded by petitioner's argument. He

has not met the standard under Fed. R. App. P.4(a)(5)

to warrant an extension of time. Accordingly, peti-

tioner’s Motion is denied.

On April 11, 1999 (50 days after the district court entered

its judgment), Andrade deposited a Notice of Appeal in the

prison mail system. Subsequently, the district court entered an

order denying Andrade a certificate of appealability.

We granted Andrade a certificate of appealability to raise

his Eighth Amendment claim. Although Andrade initially filed

his appeal pro se, we appointed counsel and ordered supplemen-

tal briefing.

II. JURISDICTION

We must consider as a threshold matter whether we have

jurisdiction over this appeal. A timely notice of appeal is

mandatory and jurisdictional. Fed. R. App. P. 3(a); Browder v.

Dir., Dep't of Corr. of Ill., 434 U.S. 257, 264 (1978); Vahan v.

Shalala, 30 F.3d 102, 103 (9th Cir. 1994). Rule 4(a)(1)(A)

requires that a notice of appeal be filed within 30 days after the

district court enters judgment where, as here, the United States

is not a party. The district court may extend this period if "(i) a

party so moves no later than 30 days after the time prescribed

by [ ] Rule 4(a)[(1) ] expires" and "(ii) that party shows excus-

able neglect or good cause." Fed. R. App. P. 4(a)(5)(A); see also

Vahan, 30 F.3d at 103. Such an extension, however, is limited

to 30 days after the time prescribed by Rule 4(a)(1) or 10 days

after the district court order granting the party's motion,

whichever is later. Fed. R. App. P. 4(a)(5)(C).

Andrade did not file a notice of appeal until April 11, 1999,

50 days after the district court entered judgment. He did file,

however, pursuant to Rule 4(a)(5)(A), a motion for extension of

time on March 17, within 30 days of entry of the district court

judgment.* Although the district court denied the motion,

Andrade asserts that his motion for extension of time was the

functional equivalent of a notice of appeal. We agree.

We have previously held that a motion for extension of

time may not be construed as a notice of appeal. Selph v.

Council of City of Los Angeles, 593 F.2d 881, 883 (9th

Cir.1979), overruled on other grounds by United Artists Corp.

v. La Cage Aux Folles, Inc., 771 F.2d 1265 (9th Cir. 1985). In

so deciding, we distinguished the case from "those few criminal

appeals or collateral attacks on criminal convictions . . . in

which extraordinary relief has been granted." /d. (citing United

States v. Hoye, 548 F.2d 1271, 1273 (6th Cir. 1977) (treating a

motion for enlargement of time containing "most of the

6. In its order denying Andrade's request for an extension of

time, the district court mistakenly used March 25, 1999 as the date

Andrade filed his motion. The clerk's stamp on Andrade's motion

indicates that the district court received his motion on March 18.

Moreover, a notice of appeal by an inmate confined in an institution

will be considered timely if it is deposited in the institution's internal

mail system with proper postage on or before the last day of filing.

Fed. R. App. P. 4(c)(1); see also Houston v. Lack, 487 U.S. 266, 276

(1988). Andrade’s supporting declaration indicates that he

accomplished this task on March 17.

essential facts required of a notice of appeal” as a timely notice

of appeal)). The present appeal is distinguishable from Selph in

two ways: (1) unlike the appellants in Selph, Andrade was

proceeding pro se at the time he filed his motion for extension

of time; and (2) Andrade's suit is a collateral attack on his

criminal conviction.

More importantly, we must reexamine our holding in Selph

in light of the Supreme Court's decision in Smith v. Barry, 502

U.S. 244 (1992). In Smith, the Supreme Court held that a

document intended to serve as an appellate brief may qualify as

the notice of appeal required by Rule 3. Jd. at 248-49.

The Court stated:

While a notice of appeal must specifically indicate the

litigant's intent to seek appellate review, the purpose

of this requirement is to ensure that the filing pro-

vides sufficient notice to other parties and the courts.

Thus, the notice afforded by a document, not the

litigant's motivation in filing it, determines the

document's sufficiency as a notice of appeal. If a

document filed within the time specified by Rule 4

gives the notice required by Rule 3, it is effective as

a notice of appeal.

Id. (internal citations omitted). The Court also noted that Rule

3's requirements should be liberally construed, although non-

compliance will still be fatal to an appeal. /d. at 248.

Two of our sister circuits have relied on Smith v. Barry to

hold that a timely motion for extension of time may qualify as

a notice of appeal. United States v. Smith, 182 F.3d 733, 735-36

(10th Cir. 1999); Listenbee v. City of Milwaukee, 976F .2d 348,

349-51 (7th Cir. 1992).” Prior to the Supreme Court's decision

7. Prior to the Supreme Court's decision in Smith v. Barry,

the Sixth Circuit had already held that a timely motion for extension

in Smith v. Barry, the Tenth Circuit had held to the contrary.

Longstreth v. City of Tulsa, 948 F.2d 1193, 1194 (10th Cir.

1991) ("[A]sking for more time in which to file an appeal

indicates uncertainty as to whether one will file an appeal and

compels the conclusion that the notice of appeal is something

yet to be filed."). In United States v. Smith, however, the Tenth

Circuit departed from its previous rule by explaining that Smith

v. Barry had modified the intent requirement by shifting the

emphasis to "‘the notice afforded by a document, not the

litigant's motivation in filing it... .'" 182 F.3d at 735 (quoting

Smith v. Barry, 502 U.S. at 248-49). It explained that the

relevant question is whether a motion gave notice of the three

elements required by Rule 3: "the party or parties taking the

appeal by naming each one in the caption or body of the notice’;

‘the judgment, order or part thereof appealed from’; and the

‘court to which the appeal is taken.' "Jd. (quoting Rule 3(c)(1)).

The court concluded by holding that the appellant's "Motion for

Out of Time Notice of Appeal" satisfied these elements, was

filed within the allowable time, and thus was the functional

equivalent of a notice of appeal. Jd. at 735-36"

of time may be treated as a notice of appeal, at least in cases

involving a direct or collateral appeal from a criminal conviction.

United States v. Christoph, 904 F.2d 1036, 1040 (6th Cir. 1990),

superceded by statute on other grounds, as recognized in United

States v. Williams, 940 F.2d 176, 181 n.3 (6th Cir. 1991); Hoye, 548

F.2d at 1273.

8. The Eleventh Circuit has concluded otherwise. After

Smith v. Barry, it held that a motion for extension of time cannot be

the functional equivalent of a notice of appeal unless "it is objectively

clear [from the motion] that a party intends to appeal." Compare

Rinaldo v. Corbett, 256 F.3d 1276, 1279-80 (1 1th Cir. 2001) (holding

that a motion for extension of time is the functional equivalent of a

notice of appeal where the party "specifically states that ‘Plaintiff. .

. gives Court notice that he intends to appeal’ "), with Harris v.

Ballard, 158 F.3d 1164 (11th Cir. 1998) (holding that a motion for

extension of time is not the functional equivalent of a notice of appeal

[1])We find the Tenth Circuit's reasoning persuasive and

join it, along with the Sixth and Seventh Circuits, in holding

that a timely motion for extension of time to file a notice of

appeal may be considered the functional equivalent of a notice

of appeal provided it gives notice of the three elements required

by Rule 3(c)(1). Andrade's declaration in support of his motion

for extension of time states: "Leandro Andrade respectfully

requests . . . an additional 60 days in which to file his notice of

appeal." While this language does not preclude the possibility

that Andrade may have elected not to appeal, we conclude that

to require more explicit language conflicts with the Supreme

Court's instruction that we liberally construe Rule 3's require-

ments. Smith v. Barry, 502 U.S. at 248. Andrade's motion for

extension of time satisfied the three notice requirements of Rule

3(c)(1): it identified the judgment at issue, it specified the court

to which the appeal would be taken, and it was delivered to both

the district court and the opposing party. Moreover, Andrade

filed it wia.in 30 days of the entry of the district court judgment,

thus satisfying the timeliness requirements of Rule 4(a)(1)(A).

Because we conclude that Andrade's motion is the functional

equivalent of a timely notice of appeal, we have jurisdiction to

review this appeal. To the extent that our decision in Selph

dictates otherwise, it is ov« ruled in light of the Supreme Court's

decision in Smith v. Bar » , 502 U.S. 244. United States v. Gay,

967 F.2d 322, 327 (9th Cir. 1992) (noting that a three-judge

panel may overrule the decision of a prior panel "‘when an

intervening Supreme Court decision undermines an existing

precedent of the Ninth Circuit, and both cases are closely on

point") (quoting United States v. Lancellotti, 761 F.2d

where there is uncertainty as to whether the party will in fact appeal).

See also Haugen v. Nassau County Dep't of Soc. Servs., 171 F.3d

136, 138 (2d Cir. 1999) (holding that a motion for extension of time

is the functional equivalent of a notice of appeal where appellants

stated they “will appeal" the judgment).

1363,1366 (9th Cir. 1985)).”

Ill. STANDARD OF REVIEW

We review de novo a district court's decision to grant or

deny a 28 U.S.C. § 2254 habeas petition. Bribiesca v. Gal.za,

215 F.3d 1015, 1018 (9th Cir. 2000).

Because Andrade filed his petition on August 19, 1998, we

review his petition under the provisions of the Antiterrorism and

Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.

1214 (Apr. 24, 1996) ("AEDPA"). Van Tran v. Lindsey, 212

F.3d 1143, 1148 (9th Cir. 2000). "Under AEDPA, we may

reverse a state court's decision denying relief only if that

decision is ‘contrary to, or involves an unreasonable application

of, clearly established federal law as determined by the Supreme

Court of the United States.' " Jd. at 1149 (quoting 28 U.S.C. §

2254(d)(1)).

We determine de novo what is "clearly established federal

law, as determined by the Supreme Court of the United States."

LaJoie v. Thompson, 217 F.3d 663, 668 (9th Cir. 2000) (internal

citation and quotation marks omitted). If the federal law is not

clearly established at the time of the state court determination,

§ 2254(d)(1) bars relief. Vasquez v. Strack, 228 F.3d 143, 148-

49 (2d Cir. 2000), cert. denied, 128 S.Ct. 1128 (2001).

Justice O'Connor addressed the distinction between the

“contrary to" and "an unreasonable application of" provisions of

§ 2254(d)(1) in Williams v. Taylor, 529 U.S. 362, 405-09

(2000). In Van Tran, we summarized her analysis:

9. Because we find that Andrade's motion for extension of

time was the functional equivalent of a timely notice of appeal, we

need not address his argument that the district court abused its

discretion by denying his motion for extension of time without a

proper analysis of excusable neglect.

A state court's decision can be "contrary to" federal

law either 1) if it fails to apply the correct controlling

authority, or 2) if it applies the controlling authority

to a case involving facts "materially indistinguish-

able" from those in a controlling case, but nonetheless

reaches a different result. A state court's decision can

involve an "unreasonable application" of federal law

if it either 1) correctly identifies the governing rule

but then applies it to a new set of facts in a way that

is objectively unreasonable, or 2) extends or fails to

extend a clearly established legal principle to a new

context in a way that is objectively unreasonable.

212 F.3d at 1150 (internal citation omitted). We noted that the

two concepts overlap and that it sometimes will be necessary to

apply both standards. Jd.

"[W]hen analyzing aclaim that there has been an unreason-

able application of federal law, we must first consider whether

the state court erred; only after we have made that determination

may we then consider whether any error involved an unreason-

able application of controlling law within the meaning of §

2254(d)." Jd. at 1155. We will find an "unreasonable applica-

tion" only when our independent review of the legal question

"leaves us with a ‘firm conviction’ that one answer, the one

rejected by the [state] court, was correct and the other, the

application of the federal law that the [state] court adopted, was

erroneous -- in other words that clear error occurred." Jd. at

1153-54.

IV. EIGHTH AMENDMENT

[2] The Eighth Amendment to the United States Constitu-

tion provides that there "shall not be . . . cruel and unusual

punishments inflicted." At issue here is whether this amend

10. The Eighth Amendment "applies against the States by

ment proscribes a sentence of 50 years to life for two shoplifting

offenses involving nine videotapes worth a total of $153.54 by

a defendant with several previous convictions for non-violent

offenses. The California Court of Appeal, in its 1997 decision

affirming Andrade's conviction, concluded that it did not.

The constitutionality of life sentences for non-violent

recidivists is controlled by several decisions rendered by the

Supreme Court in the two decades prior to the state court's

decision. In Rummel v. Estelle, 445 U.S. 263 (1980), the Court

upheld a sentence of life in prison with the possibility of parole

for a three-time non-violent felony recidivist. Three years later,

in Solem v. Helm, 463 U.S. 277 (1983), the Court reversed a

sentence of life in prison without the possibility of parole for a

seven-time non-violent felony recidivist. Finally, in Harmelin

v. Michigan, 501 U.S. 957 (1991), a decision without a majority

opinion, Justice Kennedy, writing for himself and two other

justices, reconciled the Court's prior decisions in Rummel and

Solem and articulated a revised test. Under this test, the "Eighth

Amendment does not require strict proportionality between

crime and sentence. Rather, it forbids only extreme sentences

that are ‘grossly disproportionate’ to the crime." Harmelin, 501

U.S. at 1001 (Kennedy, J., concurring) (quoting Solem, 463

U.S. at 288, 303). Our circuit and others regard Justice Ken-

nedy's test as "the rule of Harmelin" because it is the "position

tzken by those Members who concurred in the judgment{ ] on

the narrowest grounds. . . ." United States v. Bland, 961 F.2d

123, 128-29 (9th Cir.1992) (internal citation and quotation

marks omitted); see also Henderson v. Norris, 258 F.3d 706,

709 (8th Cir. 2001) ("Since Harmelin, our courts and others

have applied the principles outlined in Mr. Justice Kennedy's

opinion to [Eighth Amendment] cases . . . ."); United States v.

virtue of the Fourteenth Amendment." Harmelin v. Michigan, 501

US. 957, 962 (1991) (opinion of Justice Scalia, joined by Chief

a Rehnquist) (citing Robinson v. California, 370 U.S. 660

)).

Jones, 213 F.3d 1253, 1261 (10th Cir. 2000) ("We have ruled

that Justice Kennedy's plurality opinion . . . sets forth the

applicable Eighth Amendment test."); United States v. Harris,

154 F.3d 1082, 1084 (9th Cir. 1998) ("Our court follows the

narrow proportionality rule established by Justice Kennedy's

concurrence in Harmelin ... .").

A. Review of Supreme Court Case Law

Understanding the test articulated by Justice Kennedy's

concurrence requires that we first review the Court's decisions

in Rummel and Solem.

In Rummel, the Supreme Court upheld a sentence of life

Amprisonment with the possibility of parole for a three-time non-

violent felony recidivist. Rummel was sentenced under a Texas

recidivist statute which provided that "[w]hoever shall have

been three times convicted of a felony less than capital shall on

the third conviction be imprisoned for life in the penitentiary."

Rummel, 445 U.S. at 264 (citing Tex. Penal Code Ann. §

12.42(d) (1974)). Rummel's two prior felonies were (1) a 1964

conviction for fraudulent use of a credit card to obtain $80

worth of goods or services; and (2) a 1969 conviction for

passing a forged check for $28.36.” In 1973, Rummel received

his third conviction for obtaining $120.75 by false pretenses, an

offense normally punishable by imprisonment for two to ten

years. Because Rummel had two prior felony convictions,

however, the prosecution elected to proceed under the recidivist

statute, which carried a life sentence. Jd. at 266.

Several factors influenced the Court's holding that

11. This was a felony because it involved an amount of more

than $50. The offense was punishable by a sentence of two to ten

years in prison. Rummel was sentenced to three years. Jd. at 265.

12. This was a felony punishable by two to five years in

prison. Rummel was sentenced to four years. Jd. at 265-66.

Rummel's sentence did not violate the Eighth Amendment.

First, the Court emphasized that the Texas statute required

separate convictions and terms of imprisonment for each felony,

such that a defendant must twice be convicted and twice serve

time in prison before being eligible for a life sentence on his

third conviction. Jd. at 278. Second, the Court noted that it

could not ignore the fact that under Texas' liberal parole policy

Rummel would be eligible for parole in as few as twelve years.

Id. at 280-81. Third, the Court stressed that prosecutors retained

discretion to plea bargain or not invoke the recidivist statute "so

as to screen out truly ‘petty' offenders who fall within the literal

terms of" the statute. Jd. at 281.

In Solem, the Supreme Court affirmed 2 decision of the

Eighth Circuit holding unconstitutional a sentence of life

imprisonment without the possibility of parole for a seven-time

non-violent felony recidivist. The defendant Helm was sen-

tenced under a South Dakota recidivist statute that provided for

a maximum penalty of life imprisonment without parole and a

$25,000 fine for a defendant who had “at least three prior

convictions [sic] in addition to the principal felony." 463 U.S.

at 281 (citing S.D. Codified Laws § 22-7-8 (1979)) (alteration

in original). Helm had six prior felonies: three convictions for

third-degree burglary, one in 1964, another in 1966, and the

third in 1969; a fourth conviction in 1972 for obtaining money

under false pretenses; “ a fifth conviction in 1973 for grand

larceny; and a sixth conviction in 1975 for third-offense

13. Third-degree burglary was punishable by up to fifteen

years in the state penitentiary. /d. at 280 n.1.

14. Obtaining money under false pretenses was punishable

by up to three years in the state penitentiary. /d. at 280 n.2.

15. Grand larceny was defined as the taking of property of

a value exceeding $50, taking property of a value less than $50 from

the person of another, or taking livestock. It was punishable by up to

ten years in the state penitentiary. Jd. at 280 n.3.

driving while intoxicated. Jd. at 279-80. In 1979, When Helm

was convicted of his seventh felony for uttering a! "© account

check for $100, the county prosecutor sought a’ life sentence

under the state's recidivist statute. /d. at 281. Ordinarily, the

maximum punishment for this felony would h@V¢ been five

years in the state penitentiary and a $5,000 fine, bu't under South

Dakota's recidivist statute, Helm was sentenced t@ life in prison

without the possibility of parole. /d.

[3] The Court held that proportionality anal‘YS!s under the

Eighth Amendment applied to terms of imprison!™€Mt Just as it

applied to capital sentences and fines, although! 't noted that

successful challenges to the former would be " &Xceedingly

rare."" Id. at 289-90 (citing Rummel, 445 U.S. at 27/2). The Court

emphasized that legislatures’ "broad authority” ‘© determine

appropriate punishments was entitled to "substanti!@! deference.

Id. at 290. At the same time, no penalty was pé™ S¢ constitu-

tional under the Eighth Amendment. /d. The Co’ stated that

"no single criterion can identify when a sentencé '8 80 grossly

disproportionate that it violates the Eighth Amen'dment." /d. at

291 n.17. Instead, it established three objective criteria to guide

proportionality analysis under the Eighth Amendment: "(i) the

gravity of the offense and the harshness of the p&Malty; (11) the

sentences imposed on other criminals in the sam'€ Jurisdiction;

and (iii) the sentences imposed for commissiom™ f the same

crime in other jurisdictions." Jd. at 292.1%

Applying the three criteria, the Court cmcluded that

Helm's sentence was grossly disproportionate t© his crime of

16. Inevaluating the seriousness of the under ‘Ying crime, the

Solem Court noted that some norms are easily applie@ Such as non-

violent crimes are less serious than violent crimes, {*®¢ more that is

stolen the more serious the offense, lessor included offenses are less

serious than the greater offense, and attempts and acc/“SS0mes are less

culpable than actual commissions and principals. Jd ®* 292-93.

uttering a "no account" check for $100, even in light of his prior

six non-violent felony convictions. /d. at 289-90, 303. The

Court emphasized that Helm's life sentence "[wa]s far more

severe than the life sentence we considered in Rummel" because

Rummel was likely eligible for parole in 12 years while Helm

was given no possibility of parole at all. /d. at 297.1”

In 1991, the Supreme Court revisited Solem and Rummel

in Harmelin, a case involving a defendant's Eighth Amendment

challenge to his mandatory sentence under Michigan's drug laws

of life in prison without the possibility of parole for possession

of more than 650 grams of cocaine, his first felony offense.

Harmelin, 501 U.S. at 961. The Court upheld Harmelin's

sentence with five justices agreeing that it did not violate the

Eighth Amendment, although for different reasons. Justice

Scalia, joined only by Chief Justice Rehnquist, concluded that

the decision in Solem was “simply wrong: the Eighth

Amendment contains no proportionality guarantee." Jd. at 965.

Justice Kennedy, joined by Justices O'Connor and Souter, stated

that a non-capital sentence could violate the Eighth Amendment

if it was grossly disproportionate to the crime but that Harmelin

did not meet this standard. Jd. at 996-1009. Justices White,

17. Justice Powell's majority opinion in Solem used "grossly

disproportionate" and "significantly disproportionate”

interchangeably. See, e.g., id., at 284, 288, 291 n.17 (using “grossly

disproportionate") and at 303 (using" significantly disproportionate").

Justice Kennedy's concurrence in Harmelin cited Solem, 463 U.S. at

288, 303, for the “grossly disproportionate “standard. 501 U.S. at

1001.

18. The Court rejected the State's argument that it should

consider the possibility that the governor could commute Helm's

sentence to a term of years because while parole was a “regular part

of the rehabilitative process," commutation was an "ad hoc exercise

of executive clemency” id. at 300-03.

Blackmun, Stevens, and Marshall dissented, arguing that the

Court should not depart from the three-factor test articulated in

Solem and that a life sentence without parole was

unconstitutionally disproportionate to Harmelin's crime. /d. at

1009-29.

Although the Court did not produce a majority opinion,

seven justices favored some manner of proportionality review.

As noted earlier, we and other circuits treat the test articulated

by Justice Kennedy as "the rule of Harmelin ." Bland, 961 F.2d

at 129 (internal citation and quotation marks omitted); see also

Henderson, 258 F.3d at 709; Jones, 213 F.3d at 1261; Harris,

154 F.3d at 1084.

Justice Kennedy's concurrence did not challenge the central

holding of Solem that a grossly disproportionate sentence of

imprisonment violates the Eighth Amendment. Harmelin, 501

U.S. at 1001 (citing Solem, 463 U.S. at 288, 303). Nor did

Justice Kennedy question the Solem majority's conclusion that

Solem's sentence of life imprisonment without the possibility of

parole for uttering a no account check was grossly

disproportionate, given the “‘relatively minor” nature of

Solem's offenses. /d. at 1002 (quoting Solem, 463 U.S. at 296-

97). Rather, Justice Kennedy emphasized several points also

made by the Solem majority. Jd. at 998 (stating that “close

analysis of our decisions [in Rummel and Solem] yields some

common principlés that give content to the uses and limits of

proportionality review"). These principles include the

following: (1) courts should accord "substantial deference" to

legislative determinations of appropriate punishments, id. at

998-99 (citing Solem, 463 U.S. at 290); (2) the Eighth

Amendment does not require that legislatures adopt any

particular penological theory, id. at 999, a point implicit in the

Solem Court's conclusion that legislatures are entitled to

"substantial deference;" (3) divergences in theories of

sentencing and the length of prison terms are "inevitable" in our

federalist system, id. at 999 (citing Solem, 463 U.S. at 291

n.17); (4) proportionality reviews should be informed by

objective factors, id. at 1000 (citing Solem, 463 U.S. at 290);

and (5) "the Eighth Amendment does not require strict

proportionality between crime and sentence" but "[rJather, it

forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime," id. at 1001 (citing Solem, 463

U.S. at 288, 303). Relying on these “common principles,”

Justice Kennedy concluded that courts need not examine the

second and third factors specified in Solem - the

intrajurisdictional and interjurisdictional reviews -- unless a

“threshold comparison of the crime committed and the sentence

imposed leads to an inference of gross disproportionality." /d.

at 1005. While Justice White in his Harmelin dissent considered

this "an abandonment of the second and third factors set forth in

Solem," id. at 1020, Justice Kennedy argued that it was

consistent with the Solem Court's "admonition that ‘a reviewing

court rarely will be required to engage in extended analysis to

determine that a sentence is not constitutionally

disproportionate,’ "id. at 1004 (citing Solem, 463 U.S. at 290

n.16).

The means by which Justice Kennedy decided that

Harmelin's sentence did not violate the Eighth Amendment

demonstrates the conformity between his proportionality

analysis and that articulated by the Solem Court. Rather than

emphasizing a different analytical framework, Justice Kennedy

based his analysis on the more serious nature of Harmelin's

offense. Justice Kennedy stressed that Harmelin's offense

“threatened to cause grave harm to society” unlike “the

relatively minor, nonviolent crime at issue in Solem ."Id. at

1002. Justice Kennedy further noted that the "[p]ossession, use,

and distribution of illegal drugs represent ‘one of the greatest

problems affecting the health and welfare of our population’ "

and that the quantity of cocaine that Harmelin possessed had "a

potential yield of between 32,500 and 65,000 doses.” /d. at 1002

(internal citations omitted). Thus, in concluding that Harmelin's

sentence did not raise an inference of gross disproportionality,

Justice Kennedy did not suggest, implicitly or explicitly, that his

analysis would have led to a different outcome in Solem.

Accordingly, we conclude that Solem remains good law after

Harmelin, recognizing that we need not consider Solem's second

and third factors if we conclude under the first factor that a

defendant's sentence does not raise an inference of gross

disproportionality to the crime. /d. at 1005 ("This conclusion

neither ‘eviscerate[s]' Solem, nor ‘abandon{s]' its second and

third factors, as the dissent charges... ."). See also Henderson,

258 F.3d 706 (citing Solem throughout the opinion for binding

points of law).

B. Application of Supreme Court Case Law

Following the revised three-factor test, we first compare

Andrade's punishment to his crimes. Because this comparison

leads to an "inference of gross disproportionality," we then

proceed to compare Andrade's sentence to sentences imposed

for other crimes in California and then to sentences imposed for

similar crimes in other jurisdictions.

1. Comparison of Punishment and Crime

a. Harshness of the Penalty

Andrade was sentenced to two consecutive indeterminate

sentences of 25 years to life in prison. Becadse of a unique

feature of the Three Strikes law, the sentencing judge had no

discretion to impose the sentences concurrently. Cal. Penal

Code §§ 667(c)(6), 1170.12(a)(6); Ingram , 48 Cal. Rptr. 2d at

264. Unlike most sentences imposed under California's

19. The dissent stresses the fact that Andrade's sentence is

for two offenses rather than one. There is no dispute that Andrade

was convicted of two petty theft offe ises with a prior. However, as

noted above, California's Three Strikes law precluded the trial judge

from exercising any sentencing discretion; the court was required to

impose consecutive sentences. The cases cited by the dissent are

distinguishable, as it does not appear in these cases that the

sentencing laws, Andrade’s minimum three-strikes term may

not be reduced by credit for good behavior or working while in

prison. Cervera, 16 P.3d at 181. Andrade therefore must serve

a minimum of 50 years in prison before he is eligible for parole.

The unavailability of parole for a half century makes

Andrade's sentence substantially more severe than the life

sentence at issue in Rummel. There, Rummel was eligible for

parole in as few as 12 years. In contrast, Andrade must serve

more than four times the length of Rummel's sentence before he

becomes eligible for parole. See also Smallwood v. Johnson,

73 F.3d 1343, 1346, 1352 (Sth Cir. 1996) (upholding a 50-year

sentence for a non-violent recidivist only after noting that the

defendant would be eligible for parole within 12 years);

Hawkins, 200 F.3d at 1284 (stating that the availability of

parole is relevant to determining whether the length of the

sentence violates the Eighth Amendment).

Indeed, Andrade's sentence is the functional equivalent of

the sentences at issue in Solem and Harmelin — life in prison

without the possibility of parole. A “life sentence without

parole is the second most severe penalty permitted by law,”

Harmelin, 501 U.S. at 1001, and is the same sentence that the

Supreme Court held unconstitutional when imposed on a seven-

time felony recidivist in Solem. Andrade was 37 years old at

the time of his sentencing and will be 87 years old when he is

first eligible for parole. The life expectancy of a 37-year-old

American male is 77 years. National Center for Health

sentencing judge or official was required to impose consecutive

sentences. Hawkins v. Hargett, 200 F.3d 1279, 1280 (10th Cir. 1999)

("The trial judge ordered that the[ ] sentences be served consecutively

.. +"); United States v. Aiello, 864 F.2d 257, 262 (2d Cir.1988) ("The

district court did not abuse its substantial discretion in choosing an

appropriate sentence."); see also Pearson v. Ramos, 237 F.3d 881,

886 (7th Cir. 2001) (explaining that the Superintendent imposed

consecutive” sentences" denying yard privileges to a prisoner, a

sanction "authorized by state law”).

Statistics, Center for Disease Control and Prevention, National

Vital Statics Reports at Table 2, Vol. 47, No. 28 (Dec. 13,

1999). It is thus more likely than not that Andrade will spend

the remainder of his life in prison without ever becoming

eligible for parole.

b. Gravity of the Offense

As Harmelin makes clear, simply because a sentence is

harsh does not mean that it is disproportionate tu the crime. We

examine the punishment in light of the gravity of the offense.

We also recognize that a "State is justified in punishing a

recidivist more severely than it punishes a first offender.”

Solem, 463 U.S. at 296. But “the enhanced punishment

imposed for the [present] offense ‘is not to be viewed as. . . [an]

additional penalty for the earlier crimes,’ but instead as ‘a

stiffened penalty for the latest crime, which is considered to be

an aggravated offense because a repetitive one."” Witte v. United

States, 515 US-389,400 (1995) (quoting Gryger v. Burke, 334

U.S. 728, 732 (1948)); see also Solem, 463 U.S. at 297 n.21

("We must focus on the principal felony -- the felony that

triggers the life sentence -- since [the defendant] already has

paid the penalty for each of his prior offenses. But we

recognize, of course, that [the defendant]'s prior convictions are

relevant to the sentencing decision.").

Andrade's present convictions are for two counts of petty

theft with a prior for shoplifting videotapes on two different

occasions with a total value of $153.54. Petty theft is similar in

many respects to the defendant's crime of "uttering a no account

check" in Solem. Both "involve[ ] neither violence nor [the]

threat of violence to any person " and a relatively small amount

of money. /d. at 296. Additionally, both are easily

distinguished from the defendant's crime in Harmelin, where

Justice Kennedy emphasized the serious and often violent

consequences of drug use and distribution and noted that

Harmelin possessed enough cocaine for between 32,500 and

65,000 doses. Harmelin, 501 U.S. at 1002. Justice Kennedy

distinguished Harmelin's offense from the "relatively minor,

nonviolent crime at issue in Solem," concluding that Harmelin's

crime was "as serious and violent as the crime of felony murder

without specific intent to kill. ..." id. at 1002, 1004. Andrade’s

crimes did not pose a “grave harm to society,” id. at 1002, and

the nine videotapes he stole were recovered by store personnel

as he exited the stores.

Moreover, petty theft is usually prosecuted as a

misdemeanor. By classifying such conduct as a misdemeanor,

the California legislature has indicated that petty theft is

regarded as a relatively minor offense. Had Andrade's

videotape thefts been his first theft offenses, the maximum

penalty he could have received for each theft would have been

six months in county jail and a maximum $1,000 fine. Cal.

Penal Code § 490. Because he had a prior theft offense,

however, they were elevated to petty theft with a prior --

a"wobbler" offense punishable either as a misdemeanor or

felony. Cal. Penal Code § 666; Terry, 54 Cal. Rptr. 2d at 770-

71. The prosecution's decision to charge the petty thefts as

felonies qualified the offenses as his third and fourth strikes.

Terry, 54 Cal. Rptr. 2d at 770-71. Thus, under a “unique quirk"

in California law, Andrade's recidivism was double counted,

first enhancing his misdemeanor offenses to felonies and then

enhancing them again to third and fourth strikes. Riggs, 119 S.

Ct. at 891 (Stevens, J., memorandum opinion respecting the

denial of the petition for a writ of certiorari).

It is significant that the core conduct for which Andrade

was sentenced is, in the first instance, classified as a

misdemeanor rather than a felony. While the Supreme Court

frequently defers to legislative judgments regarding the proper

length of imprisonment for felony offenses, it is less clear that

the same degree of deference is appropriate when extreme

sentences are imposed for misdemeanor conduct. /d. (deference

to legislative determination of punishment less pronounced

when offense is not classified as a felony); Rummel, 445 U.S. at

274 n.11 (acknowledging that a proportionality analysis would

be relevant to a hypothetical statute making overtime parking

punishable by life imprisonment).

Of course, Andrade was sentenced as a recidivist, and the

gravity of his offense cannot be assessed independently of his

previous criminal conduct. According to the State, Andrade's

criminal record warrants the enhanced punishment and therefore

justifies its severity. Not all enhanced sentences imposed on

repeat offenders are constitutional, however, as demonstrated by

the Solem Court's decision to vacate the life sentence of a seven-

time felony recidivist.

California's Three Strikes law imposes a 25-year-to-life

sentence on defendants previously convicted of two or more

"serious" or "violent" felonies. Cal. Penal Code §§

667(e)(2)(A), 1170.12(c)(2)(A). Andrade's predicate "serious"

felonies were three counts of residential burglary adjudicated in

a single proceeding more than a decade earlier. This contrasts

with the defendant in Rummel, who served time in prison for his

first felony before being convicted and serving time for his

second felony -- a fact the Court found significant. Rummel,

445 US. at 278.

As noted above, Andrade has additional offenses on his

record. His prior misdemeanor petty theft from 1990 permitted

his present petty theft corivictions to be charged as felonies and

thus to qualify as third and fourth strikes. Although Andrade

also has two federal convictions for transporting marijuana, they

were not counted as strikes and there is no record that the court

considered them when sentencing Andrade. Arguably, the

federal convictions therefore should not affect our analysis as

they did not affect the imposition of Andrade's 50-year-to-life

20. Andrade also has the misdemeanor theft conviction

from 1982, for which he served six days in jail and received twelve

months of probation.

sentence. Even if we consider Andrade's entire criminal history

record -- five felonies, two misdemeanors, and one parole

violation -- it is still comparable, quantitatively and

qualitatively, to that of the defendant in Solem. Both defendants

had three burglary convictions, although only Andrade was

convicted of all three in a single proceeding. All of the offenses

were non-violent. Given that Andrade's sentence of 50 years to

life is a sentence of life without a realistic possibility of parole,

his case is most analogous to Solem.

c. Inference of Gross Disproportionality

A threshold comparison of the harshness of the penalty and

the gravity of the crimes leads to an inference that Andrade's

sentence was grossly disproportionate. Andrade will likely

serve the remainder of his life in prison for shoplifting nine

videotapes.

This inference of disproportionality is not dissipated by

Andrade's prior criminal record. His prior "strikes" were non-

violent burglaries, prosecuted in a single judicial proceeding,

more than a decade before he was sentenced under the Three

Strikes law. His other offenses, although not considered at

sentencing, were also non-violent. Moreover, due to a unique

quirk in California law, his recidivism was double-counted by

first enhancing his misdemeanor petty theft offenses to felonies

and then enhancing them to third and fourth strikes.

2. Intrajurisdictional Comparison

An intrajurisdictional comparison is only required when a

sentence presents an "inference of gross disproportionality."

Harmelin, 501 U.S. at 1005. Consequently, this second prong

of the Eighth Amendment test is often mentioned, but seldom

actually applied. See, e.g., Cacoperdo v. Demosthenes, 37 F.3d

504, 508 (9th Cir. 1994) (concluding that a comparison of the

gravity of defendant's offenses with the harshness of his

sentence did not raise an inference of gross disproportionality

and, therefore, no intrajurisdictional comparison was required),

United States v. Whyte, 892 F.2d 1170, 1176n.16 (3d Cir. 1989)

(upholding life sentence without undertaking intrajurisdictional

comparison).

Where, as here, the harshness of the sentence appears

grossly disproportionate to the gravity of the offense and the

culpability of the offender, we must assess whether the disputed

sentence is excessive when compared to "sentences imposed on

other criminals in the same jurisdiction. " Solem, 463 U.S. at

292. See also Harmelin, 501 U.S. at 1005 (Kennedy, J.,

concurring); United States v. Meirovitz, 918 F.2d 1376, 1381

(8th Cir. 1990) (noting that analysis under the second prong is

"rare," but appropriate where challenged sentence is life without

possibility of parole). ~

As noted above, petty theft, if committed by a first time

offender, is a misdemeanor punishable by up to six months in

county jail and up to a $1,000 fine. Cal. Penal Code§ 490. Ifa

defendant has been convicted previously of a theft offense, he

may be charged under California Penal Code § 666 and

sentenced to up to three years in prison (or, if charged as a

misdemeanor, up to one year in county jail). Cal. Penal Code

§§ 18, 666. Thus, Andrade could have received a total sentence

of six years in prison had he received the maximum sentences,

imposed consecutively, under these provisions.

Andrade's indeterminate sentence of 50 years to life is

exceeded in California only by first-degree murder and a select

few violent crimes. Cal. Pena! Code § 190 (first-degree murder

punishable by death, life without parole, or 25 years to life); id.

§ 209 (kidnaping under certain circumstances punishable by life

without parole); id. §§ 218 and 219 (train wrecking or derailing

punishable by life without parole or, for § 219, death); id. §

12310 (unlawful explosion causing death, mayhem, or great

bodily injury punishable by life without parole). Most violent

crimes, however, are punished much less severely. Id. § 190

(second-degree murder punishable by 15 years to life under

most circumstances); id. § 193 (voluntary manslaughter

punishable by up to 11 years); id. § 264 (rape punishable by up

to 8 years); id. § 288 (sexual assault on a minor punishable by up

to 8 years). Andrade's sentence is grossly disproportionate

when compared to the above sentences for violent crimes.

The State argues that, because Andrade is a recidivist, we

must compare his sentence to those of other non-violent

recidivists in California. The State then lists several examples

of non-violent recidivists sentenced to harsh sentences under

California's Three Strikes law. People v. Cline ,71 Cal. Rptr.2d

41 (Ct. App. 1998) (25-year-to-life sentence for felony grand

theft with twelve prior convictions ‘or residential burglary);

People v. Goodwin, 69 Cal. Rptr. 2d 576 (Ct. App. 1997) (25-

year-to-life sentence for commercial burglary with two prior

strikes for residential burglary, plus several drug related

offenses and a misdemeanor battery).

Although we agree that comparisons to sentences for other

recidivists are relevant, the problem with the State's argument

is that It attempts to justify the constitutionally-suspect

application of a statute by pointing to other applications of the

same statute. We find this approach less than convincing. That

said, Andrade's sentence is unusual even when compared to

other sentences for non-violent recidivists under the Three

Strikes law. Andrade's sentence is twice as long as the

comparable" sentences cited by the State. Cline, 71 Cal. Rptr.

2d 41 (25 years to life); Goodwin, 69 Cal. Rptr. 2d 576

(same). It is twice as long as the sentence in 7. erry, which

upheld a third-strike conviction for petty theft with a prior. 54

Cal. Rptr. 2d at 770-71 (nature of prior strikes not specified).

Indeed, we have found no other published case upholding a

sentence of 50 years to life in prison for a non-violent recidivist

under the Three Strikes law.2!’

21. Ingram, not cited by the State, held that a defendant

convicted of two counts of residential burglary with two prior strikes

—_

Our intrajurisdictional comparison of sentences in

California supports the conclusion that Andrade's sentence was

grossly disproportionate to his crimes and therefore proscribed

by the Eighth Amendment. His sentence is significantly greater

than the sentences uncer California law for most violent crimes.

Moreover, it is unusual even when compared to other

applications of the Three Strikes law.

3. Interjurisdictional Comparison

California's Three Strikes law was one of twenty-five laws

with this label enacted nationwide between 1993 and 1995. John

Clark et al., "Three Strikes and You're Out": A Review of State

Legislation in National Institute of Justice, U.S. Department of

Justice, Research in Brief at 1 (Sept. 1997). Many other states

have similar laws under different names which likewise punish

recidivists more severely than first-time offenders. See

generally People v. Riggs, No. E019488, 1997 WL 1168650, *4

n.2 (Cal. Ct. App. 1997) (unpublished) (indicating that at least

forty states have some form of recidivist statute).

Of those jurisdictions with some form of recidivist

sentencing statute, the State suggests only four where Andrade's

triggering offense (petty theft with a prior) could qualify for

recidivist sentencing: Rhode Island, West Virginia, Texas, and

Louisiana. Even in these four states, however, Andrade could

not receive a sentence nearly as severe as he did under

California's Three Strikes law on the basis of his two prior

strikes for residential burglary. If we also consider Andrade's

prior convictions not included in the calculation of his sentence

under California's Three Strikes law -- his 1982 misdemeanor

should be sentenced to two consecutive 25-year-to-life terms. 48 Cal.

Rptr. 2d at 266. Unlike the instant case, however, the triggering

offenses in Jngram were "serious" felonies and one of the defendant's

prior strikes was for a violent offense (burglary at knifepoint). /d. at

267-68.

theft offense and his two federal convictions for transportation

of marijuana -- only in Louisiana is it possible for Andrade to

receive a comparable sentence. Even then, the sentence would

be vulnerable to a challenge under the Louisiana state

constitution.

a. Rhode Island

In Rhode Island, a three-time felon may be sentenced to an

additional 25 years in prison. R.I. Gen. Laws § 12-19-21.

Unlike in California, however, theft of merchandise valued at

less than $100 is not a felony in Rhode Island, even if the

defendant has a prior theft conviction. Compare id. § 11-41-

20(d) with Cal. Penal Code § 666. Each of Andrade's petty theft

offenses involved theft of property valued at less than $100

($84.70 and $68.84, respectively). Consequently, Andrade's

petty theft offenses would not be felonies in Rhode Island, and

he would not be eligible for the 25-year sentence enhancement.

The maximum term of imprisonment he could receive would be

not for each petty theft offense. R.I. Gen. Laws § 11-41-

The Rhode Island habitual offender sentencing scheme also

differs from California's Three Strikes law in that the defendant

must serve "two or more" separate terms of imprisonment

before he qualifies for habitual offender status. /d. § 12-19-

21(a), Here, Andrade pled guilty to and was sentenced for his

three burglary offenses in a single proceeding.

In addition, although the Rhode Island habitual offender

Statute requires the sentencing judge to order the defendant to

serve a minimum number of years of his sentence before the

defendant becomes eligible for parole, the judge's discretion to

determine that minimum number of years is not restricted. /d.

§ 12-19-21(c). California's Three Strikes law does not afford

any such discretion to judges. The judge must impose a

mandatory minimum term without possibility of parole.

Cervera, 16 P.3d at 181.

Therefore, for multiple reasons, Andrade could not receive

as severe a sentence in Rhode Island as he did in California.

——b-West Virginia

Andrade could not be sentenced to life in prison under the

West Virginia habitual offender statute, W. Va. Code § 61-11-

18(c). The West Virginia Supreme Court has held that a life

sentence imposed on a non-violent recidivist offender violates

the express requirement of proportionality in sentencing

mandated by Article III, Section 5 of the West Virginia state

constitution. State v. Deal, 358 S.E.2d 226, 231 (W. Va. 1987)

(vacating sentence of non-violent recidivist on grounds that life

in prison was disproportionate to offenses); State v. Hedrick,

391 S.E.2d 614, 622 (W. Va. 1990) (reversing life sentence for

burglary where prior felonies were delivery of a controlled

substance and breaking and entering). As a non-violent

recidivist, Andrade could not receive a life sentence in West

Virginia. ,

c. Texas

In Texas, petty theft is not punishable as a felony unless

the defendant has two previous theft convictions. Tex. Penal

Code Ann. § 31.03(e)(4)(D). Misdemeanor convictions do not

trigger Texas's habitual offender law. Jd. § 12.42. If Andrade's

only prior theft offense were his 1990 petty theft conviction

(i.e., disregarding his 1982 misdemeanor theft conviction, as the °

State in its brief and the state courts did), Andrade's present

theft offenses would only be misdemeanors in Texas, each

punishable by up to six months in jail and up to a $2,000 fine.

Even if both of Andrade's prior theft convictions are

counted, his present petty thefts would be considered only "state

jail felon{ies]." Jd. § 31.03(e)(4)(D). Under Texas's habitual

offender law, a state jail felony will be punished as a second-

degree felony (with up to 20 years in prison) if the defendant

has one or more prior felonies. Jd. §§ 12.42(a)(2) & (3), 12.33.

It follows that, in Texas, Andrade could receive up to 40 years

in prison if he were sentenced to consecutive terms.

Texas, however, has a generous parole policy. Except for

those accused of certain violent crimes, inmates are eligible for

parole after serving as little as one-fourth of their sentence (or

less, because inmates may apply good-time credit to their time

served). Tex. Govt. Code Ann. § 508.145(f). Thus, if Andrade

were sentenced to 40 years in Texas, he would be eligible for

parole in 10 years (eve less, with good-time credit)

d. Louisiana

At the time the California courts considered Andrade's

appeal, Louisiana was the only state among the four cited by the

State where Andrade could receive a sentence comparable to 50

years to life,™’ but only if a Louisiana court considered both

Andrade's 1982 misdemeanor theft conviction and his two

federal convictions for transporting marijuana in addition to

those convictions considered in the calculation of Andrade's

sentence under California's Three Strikes law. Even then, such

a sentence would be vulnerable to a challenge as impermissibly

excessive under the Louisiana state constitution.

22. Louisiana amended its recidivism statute this year, 2001

La. Sess. Law. Serv. 403 (West), and Andrade would no longer be

eligible for a comparable sentence. Under the revised statute, the

triggering offense must be “a crime of violence, a sex offense, or .. .

a violation of the Uniform Controlled Dangerous Substances Law

punishable by imprisonment for ten years or more or any other crimes

punishable by imprisonment for twelve years or more" in order to

count as a third or fourth strike. Because the sentence for theft with

two priors in Louisiana is a maximum of two years, La. Rev. Stat.

Ann. § 14:67(B)(3), his current crimes would not count as third or

fourth strikes. The current crimes could be treated as second

strikes, La. Rev. Stat. Ann. § 15:529.1(A)(1)(a), in which case he

would receive a maximum of eight years, or twice the maximum

sentence for each of the petty thefts with prioxs.

Similar to Texas, theft of less than $300 is punishable as a

felony under Louisiana law only ifa defendant has two previous

theft convictions. La. Rev. Stat. Ann. § 14:67(B)(3).

Misdemeanors will not trigger Louisiana's habitual offender

law. Id. § 15:529.1.

Louisiana's habitual offender law provides, in relevant part,

that a defendant convicted of a fourth or subsequent felony be

punished with a minimum term of twenty years in prison

without the possibility of parole. /d. § 15:529.1(A)(1(c)(i), (G).

Andrade's three prior burglary convictions would be treated as

a single prior felony because Louisiana courts have consistently

interpreted the law to have a sequential requirement for

enhanced penalties. State v. Butler, 601 So.2d 649, 650 (La.

1992); State v. Corry, 610 So.2d 142, 147 (La. Ct. App. 1992)

(applying the sequential requirement to three counts of simple

burglary entered on the same day). His two federal convictions

for transportation of marijuana, however, would likely count as

his second and third felony convictions. La. Rev. Stat. Ann. §

15:529.1(A)(1). Accordingly, under this scenario, Andrade, in

Louisiana, could receive two 20-year sentences without parole

-- 40 years if sentenced consecutively. Moreover, if either of

his federal transportation of marijuana offenses were punishable

under the Louisiana Uniform Controlled Dangerous Substances

Law by more than five years, Andrade could receive a sentence

of life without the possibility of parole in Louisiana. /d. §

15:529.1(A)(1)(c){ii).

Although it is possible that Andrade could have qualified

for a sentence under Louisiana's Habitual Offender Law

comparable to the sentence he received under California's Three

23. Therefore, if we ignored Andrade's 1982 misdemeanor

theft conviction, his present petty thefts would be only misdemeanors

in Louisiana, each punishable by up to six months in prison and up to

a $500 fine. La. Rev. Stat. Ann. § 14:67(B)(3).

Strikes law, there is a distinct possibility, unlike in Californi

> > . ’

that a Louisiana court might have invalidated such a sentence as

excessive under its state constitution. A Louisiana court, for

_ example, recently invalidated as excessive a life sentence under

the Habitual Offender Law for a defendant convicted of

misappropriating or taking over $500" whose prior crimes

were “two thefts under $100, one theft over $100, several counts

of issuing worthless checks, check forgery,[and] simple robbery

(for stealing a bicycle after pushing the minor off it)." State v.

Hayes, 739 So.2d 301, 303-04 (La. Ct. App. 1999): see also

State v. Burns, 723 So.2d 1013 (La. Ct. App. 1998)

(invalidating as excessive under the Louisiana state constitution

a life sentence for possession and distribution of two rocks of

crack cocaine where defendant's prior felonies had been non-

violent and there were other mitigating circumstances).

The possibility that Andrade might have received a

comparable sentence in one other jurisdiction does not render

his sentence constitutional under the Eighth Amendment

Solem, 463 U.S. at 299-300 (holding that defendant's sentence

violated the Eighth Amendment while acknowledging that

defendant could have received the same sentence in one other

state, Nevada); see also Henderson, 258 F.3d at 713-14 (holding

that defendant's sentence violated the Eighth Amendment while

acknowledging that defendant could have received the same

sentence in Idaho). Indeed, that Andrade could receive a

comparable sentence in only one other state -- and, even then,

only if that state considered prior convictions not necessary for

application of California's Three Strikes law -- supports our

conclusion that Andrade's sentence was grossly disproportionate

to his crimes. Harmelin, 501 U.S. at 1005 ("The proper role for

comparative analysis of sentences, then, is to validate an initial

judgment that a sentence is grossly disproportionate to a

crime.”)

[4]We thus conclude, following the revised three-factor test

articulated by Justice Kennedy in Harmelin, that: (1) Andrade's

punishment of 50 years to life raises an inference of gross

disproportionality when compared to his two petty thefts of nine

videotapes worth $153.54, even in light of his prior felony and

misdemeanor convictions; (2) Andrade’s sentence is

substantially more severe than sentences for most violent crimes

in California and is unusual even when compared to other

applications of California's Three Strikes law; and (3) Andrade

could not have received such a severe sentence anywhere else,

with the possible exception of Louisiana. Accordingly, we

disagree with the California Court of Appeal and conclude that

Andrade's sentence is so grossly disproportionate to his crime

that it violates the Eighth Amendment to the United States

Constitution.

C. Decision of the California Court of Appeal

[5] Of course, under AEDPA, mere disagreement is not

enough. We may grant relief only if the state court's decision is

"contrary to, or involves an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States.” 28 U.S.C. § 2254(d)(1).

[6]Our review of the Supreme Court's decisions in Rummel

(1980), Solem (1983), and Harmelin (1991) demonstrates that

the law governing the application of the Eighth Amendment to

non-violent offenders sentenced to life imprisonment was

clearly established by the time of the California Court of

Appeal's 1997 decision in this case. See also Riggs, 119 S. Ct.

at 892 (Stevens, J., memorandum opinion respecting the denial

of the petition for a writ of certiorari) (stating that petitioner

could assert his claim in a petition for a writ of habeas corpus

"since [he] is asking us to apply a settled rule of Eighth

Amendment law") Although we follow the test prescribed by

Justice Kennedy in Harmelin, both Rummel and Solem remain

good law and are instructive in Harmelin's application.

The state court begins its analysis of Andrade's Eighth

Amendment claim by noting that "the current validity of the

ionality alysis is question able in light of

Harmelin." The remainder of its discussion relies exclusively

on Rummel. It compares Rummel's three felonies with

Andrade's two petty thefts with a prior and his three residential

burglaries from 1983. It then concludes, "[c]omparing

[Andrade's] crimes and criminal history with that of defendant

Rummel ,we cannot say the sentence of 50 years to life at issue

in this case is disproportionate and constitutes cruel and unusual

punishment under the United States Constitution."

Although the state court appears to review for "gross dis-

proportionality," its disregard for Solem results in an

unreasonable application of clearly established Supreme Court

law. Although Solem's three-factor analysis was modified by

Harmelin, only two justices of the Supreme Court would have

held that Solem is no longer good law. Indeed, as discussed

above, Justice Kennedy contrasted the severity of the

defendant's crime in Harmelin with the "‘relatively minor

nature of the offenses in Sclem. Harmelin, 501 U.S. at 1002

(quoting Solem, 463 U.S. at 296-97).

[7]A proper analysis of gross disproportionality requires a

comparison to all three cases: Rummel, Solem, and Harmelin.

While Andrade's crimes and history are comparable to those of

the defendants in both Rummel and Solem, his life sentence with

no possibility of parole for 50 years is most analogous to Solem.

The state court's failure to address Solem yields an unreasonable

conclusion that a non-violent recidivist sentenced to such a

severe sentence for two misdemeanor offenses does not raise an

inference of gross disproportionality. Its conclusion that

24. Although the state court ends its analysis of Andrade's

Eighth Amendment claim with a comparison to Rummel, it evaluates

the second and third factors in its discussion of Andrade's "cruel and

unusual" claim under the California state constitution. This discussion

is arguably irrelevant for our purposes because it did not concern

federal law.

Even if we treat it as a discussion of federal law, however,

Andrade's sentence does not violate the Eighth Amendment is

irreconcilable with the Supreme Court's decision in Solem and

thus constitutes clear error.

V. CONCLUSION

Our decision does not invalidate California's Three Strikes

law. Rather, our holding is limited to the application of the

Three Strikes law to the unusual circumstances of Andrade's

case. Even so, we do not arrive at this conclusion lightly.

Sentencing laws "involve[ }] substantive penological judgment

that, as a general matter, is ‘properly within the province of the

legislatures, not courts.'" Harmelin , 501 U.S. at 998 (citing

Rummel, 445 U.S. at 275-76). We do not advocate a particular

penological theory nor challenge the people of California's "

‘independent power . . . to articulate societal norms through

criminal law.' " Jd. at 999 (citing McCleskey v. Zant, 499 U.S.

467, 491 (1991)). Yet, the Eighth Amendment does not permit

the application of a law which results in a sentence grossly

disproportionate to the crime. Andrade's sentence of life in

prison with no possibility of parole for 50 years is grossly

disproportionate to his two misdemeanor thefts of nine

our conclusion that the state court unreasonably applied clearly

established Supreme Court law remains unchanged. The state court

unreasonably concluded that the "second factor effectively is

irrelevant " because "all three strikes defendants are punished in the

same manner." While such defendants are all punished with

variations of a life sentence, they have not all committed the same

crimes. Andrade's case is unusual even when compared to other

three-strikes defendants, and his sentence is extreme when compared

to sentences for the State's most violent crimes.

The state court of appeal's discussion of the third factor is

equally flawed. It concludes that many states, including Texas,

“impose severe punishments on repeat felony offenders," whereas our

analysis shows that Andrade could not have received such a severe

sentence in any other state with the possible exception of Louisiana.

videotapes, even when we consider his history of non-violent

offenses. The California Court of Appeal's conclusion to the

contrary resulted from an unreasonable application of clearly

established Supreme Court law.

Accordingly, we REVERSE the judgment of the district court

and REMAND with instructions to issue the writ of habeas

corpus if, within 60 days following the issuance of our mandate,

the state has not resentenced Andrade.

SNEED, Circuit Judge, Concurring in part and Dissenting in

part:

I agree with the Majority's conclusion in Part II that

Andrade filed the functional equivalent of a timely notice of

appeal. I respectfully dissent, however, from the Majority's

conclusion in Parts IV and V that Andrade's sentence violates

the Eighth Amendment.

The sentence imposed in this case is not one of the

"exceedingly rare" terms of imprisonment prohibited by the

Eighth Amendment's proscription against cruel and unusual

punishment. Harmelin v. Michigan, 501 U.S. 957, 1001(1991)

(quoting Solem v. Helm, 463 U.S. 277, 289-290 (1983) (quoting

Rummel v. Estelle, 445 U.S. 263, 272 (1980) ("Outside the

context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly

rare.")). Two consecutive sentences of 25 years to ‘ife--with

parole eligibility only after the minimum 50 years--is obviously

severe. Nevertheless, it is the sentence mandated by the citizens

of California through the democratic initiative process and,

additionally, legislated by their elected representatives. Cal.

Pen. Code § 667(e)(2)(A) ("three strikes" provision mandating

minimum term of 25 years for recidivist felon); Cal. Pen. Code

§ 1170.12 (codifying state-wide initiative identical to “three

strikes” legislation).

It has long been the law of this Circuit that, "[g]enerally, as

long as the sentence imposed on a defendant does not exceed

statutory limits, this court will not overturn it on Eighth

Amendment grounds." U.S. v. Parker,241 F.3d 1114, 1117 (9th

Cir. 2001) (citing United States v. Zavala-Serra, 853 F.2d 1512,

1518 (9th Cir. 1988) (citing United States v. Washington, 578

F.2d 256, 258 (9th Cir.1978))). This case presents no

opportunity to set aside, or qualify, this long-established and

sound precedent.

In reversing Appellant's sentence, the majority purports to

rely on the opinion of Justice Kennedy in Harmelin v.

Michigan, 501 U.S. at 996 (Kennedy, J., concurring in the

judgment). That opinion (joined by two other members of the

court) held that the Eighth Amendment "forbids extreme

sentences that are ‘grossly disproportionate’ to the crime." /d. at

1001. While recognizing that the Eighth Amendment includes

a "proportionality principle," Justice Kennedy also

acknowledged that "its precise contours are unclear." /d. at 998.

He attempted to "give content to the uses and limits of

proportionality review" by identifying four principles that

inform the Court's application of the Eighth Amendment to

lengthy prison terms. Jd.

Each of the four principles underlying Harmelin 's "gross

disproportionality” analysis favors the affirmance of Appellant's

sentence. The first of these is that "as a general matter [it] is

properly within the province of legislatures, not courts" to fix

punishments for crimes. Jd. Thus,"reviewing courts . . . should

grant substantial deference to the broad authority that

legislatures possess in determining the types and limits of

punishments for crimes." Jd.

The sentencing scheme in the instant case was the result of

both popular vote (Proposition 184 was approved by 71.84

percent of the electorate) and legislative action. Our deference

should be at its apex. We have before us the clearest indication

possible that severe, mandatory sentences for recidivist

offenders is the expressed penal philosophy of the citizens of

California. The initiative process permits the electorate to speak

for itself, and its voice should be heard, not ignored.

The second principle underlying proportionality review "is

that the Eighth Amendment does not mandate adoption of any

one penological theory." Jd. at 999. The Eighth Amendment

permits states to grant "different weights at different times to

the penological goals of retribution, deterrence, incapacitation,

and rehabilitation." /d. All are legitimate goals of sentencing,

and the legislature has plenary power to prescribe sentencing

accordingly.

Consequently, we must accord great deference to state-

mandated sentences. We should not employ our power to strike

down a sentence as unduly harsh when its primary purpose is

the incapacitation of an habitual criminal offender. Even were

it our collective judgment that the defendant is capable of

rehabilitation, that judgment should not trump the voice of the

state legislature. California's "three strikes" sentencing regime

reflects a judgment that society's interest is best served by

imprisonment of repeat felony offenders and a correlative

determination that more lenient treatment of such offenders is

inappropriate. People v. Cooper, 43 Cal.App.4th

815, 824 (1996) ("By enacting the three strikes law, the

Legislature acknowledged the will of Californians that the goals

of retribution, deterrence, and incapacitation be given

precedence in determining the appropriate punishment for

crimes."). It is true that over time public attitudes change.

However, it is not our duty to anticipate the future legislative

conduct of the State of California.

The. third principle cited by Justice Kennedy is that

“marked divergences both in underlying theories of sentencing

and the length of prescribed prison terms are the inevitable,

[and] often beneficial, result of the federal structure."

Harmelin, 501 U.S. at 999. It is not, to repeat, the role of the

federal courts to establish the appropriate sentences that each

state is obligated to follow in punishing those who violate its

laws.

The fourth principle that guides our review of Appellant's

sentence is that such review "should be informed by ‘objective

factors to the maximum possible extent.'" Jd. at 1000 (quoting

Rummel, 445 U.S. at 274-275). Justice Kennedy noted that

objective factors exist to permit review of a sentence of death.

Id. at 1000 ("[T]he objective line between capital punishment

and imprisonment for a term of years finds frequent mention in

our Eighth Amendment jurisprudence."). He observed,

however, "that we lack clear objective standards to distinguish

between sentences for different terms of years." Jd. at 1001. See

also Solem, 463 U.S. at 294 ("It is clear that a 25-year sentence

generally is nore severe than a 15-year sentence, but in most

cases it would be difficult to decide that the former violates the

Eighth Amendment while the latter does not."); Rummel, 445

U.S. at 275 (the line between death and other punishments is

"considerably clearer than would be any constitutional

distinction between one term of years and a shorter or longer

term of years").

Informed by these four principles, the Harmelin court

concluded that a sentence of life imprisonment without

possibility of parole for possession of cocaine was not cruel and

unusual. "A rational basis exists for [the state] to concludé that

petitioner's crime is as serious and violent as the crime of felony

murder without specific intent to kill, a crime for which no

sentence of imprisonment would be disproportionate. " /d. at

1004. There is an equally rational basis for the sentence

imposed on Appellant in this case:

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.

Rummel, 445 U.S. at 284. The “uses and limits" of

proportionality review, as defined in Harmelin, demand that we

respect this explanation if it is rational. Harmelin, 501 U.S. at

998. With respect to Appellant's sentence, I believe that it is.

The majority, however, has attempted to apply Harmelin's

narrow holding -- the prohibition on grossly disproportionate

sentences -- without thoughtful consideration of the principles

underlying its holding. The result of this approach is predictable

and, in fact, was predicted by two members of the Harmelin

majority: "the proportionality principle becomes an invitation

to imposition of [the] subjective values" of federal judges. Jd.

at 986 (Scalia, J.)

In short, for all its reliance on Harmelin, that case does not

compel the outcome reached by the majority today. In fact, just

the opposite is true. Harmelin counsels that judicial review of

legislatively determined sentences should reflect both deference

to the elected branches of government and deference to the

varied, but rational, determinations of the 50 states. Therefore,

we should affirm the sentence in this case.

The principles articulated by Justice Kennedy, restated

above, and employed in a manner consistent with their purpose,

are sufficient to restrain any federal judicial tendency to employ

cruel and unusual punishment" as a justification for expansive

constitutionalization of permissible sentencing by the states.

This fact is borne out by numerous cases from our sister

circuits. In the wake of Harmelin, not a single court has struck

down the sentence of an habitual offender on Eighth

Amendment grounds.” The Seventh Circuit in Bocian vy.

Godinez, 101 F.3d 465, 472 (7th Cir. 1996), in concluding that

the accused's sentence was not "contrary to" the gross

disproportionality analysis of Harmelin, recognized that the

Harmelin majority emphasized that "state legislatures have

great leeway in determining the appropriate punishments for

specific crimes." Thus, the state court's refusal to "substitute its

judgment or preference as to punishment for that of the

sentencing court" -- far from being contrary to clearly

established federal law -- was consistent with the Harmelin

analysis. Jd. at 473.

Likewise, in McGruder v. Puckett, 954 F.2d 313 (Sth Cir.

1992), the court affirmed a life sentence without possibility of

parole imposed on an habitual offender where the infraction that

triggered the life sentence was the offense of auto burglary.

Applying the Harmelin analysis, as articulated by Justice

Kennedy, the court dismissed the defendant's argument that life

in prison without possibility of parole was grossly

disproportionate to the crime of auto burglary. "We think that —

the argument ignores the essence of the statute under which he

was sentenced . . . . Under the statute, his sentence is imposed

to reflect the seriousness of his most recent offense, not as it

stands alone, but in the light of his prior orfenses." McGruder,

954 F.2d at 316.

These two opinions also reflect what has been, until today,

the consensus of the federal courts with regard to the scope of

proportionality review under Harmelin® These cases

1. In fact, in the decade since Harmelin was decided, only

one sentence has been struck down as proscribed by the Eighth

Amendment to the U.S. Constitution. That case, Henderson v.

Norris, 258 F.3d 706 (8th Cir. 2001), involved a first time drug

offender, not an habitual offender as is the case here.

2. See, e.g., United States v. Cardoza, 129 F.3d 6, 19 (ist

Cir. 1997) (affirming sentence of 20 years imprisonment for

underscore the fact that judicial deference toward legislative

determinations of suitable sentences is particularly appropriate

with regard to treatment of recidivist offenders.” Adding the

role of prosecutorial discretion to the mix of relevant sentencing

factors makes the "gross disproportionality" analysis of

questionable value when applied to recidivist offenders. See

Rummel, 445 U.S. at 281 ("Another variable complicating the

calculus is the role of prosecutorial discretion in any recidivist

scheme."). In sum, "gross disproportionality," as applied in the

recidivism context, requires adherence to the principles

underlying the Kennedy opinion.

Bringing all of these factors to bear on the "gross

disproportionality" inquiry, no other circuit has overturned a

sentence imposed pursuant to a recidivist sentencing statute.

Justice Scalia in Harmelin had it right. "Disproportionality" is

influenced by the prevailing attitude toward the seriousness of

particular crimes and the appropriateness of harsh punishments.

These judgments can be altered either within years, decades or

centuries. "Neither Congress nor any state legislature has ever

set out with the objective of crafting a penalty that is

disproportionate; yet . .. many enacted dispositions seem to be

possession of a single bullet when defendant had a prior felony

history); United States v. Prior,107 F.3d 654, 659 (8th Cir. 1997)

(affirming life sentence for drug offender who, though he had three

prior felony drug convictions, had never before served a prison term).

3. Even assuming a court is competent to determine an

offender's culpability (on a relative scale) by comparing him to others

who have committed the same or more serious crimes, See Henderson

v. Norris, 258 F.3d 706 (8th Cir. 2001), the complexity of this

comparison is magnified when the offender in question has a lengthy

criminal history. "If nothing else, the three-time offender's conduct

supports inferences about his ability to conform with social norms

that are quite different from possible inferences about first or second-

time offenders." Rummel , 445 U.S. at 282 n.27.

so -- because they were made for other times or other places,

with different social attitudes, different criminal epidemics,

different public fears, and different prevailing theories of

penology." Harmelin, 501 U.S. at 985 (Scalia, J.).

ill

To repeat, our review of state mandated sentences is

circumspect and deferential. Nevertheless, Harmelin does

require us to assess Appellant's sentence for gross

disproportionality; this inquiry is limited to an examination of

the gravity of the offenses and the harshness of the sentence.

While petty theft offenses are admittedly not grave, Appellant's

recidivist nature makes his current activity much more serious.

Appellant's criminal history commenced in 1982 with a

misdemeanor theft. While on probation for this theft, he

burglarized three separate residences in 1983, felonies resulting

in Appellant's first and second strikes. In 1990 Appellant was

convicted for a second misdemeanor theft. Then in 1995,

Appellant was arrested for two separate shoplifting offenses--

each elevated to felonies due to his prior theft convictions.

Under California's sentencing scheme, these 1995

shoplifting convictions amounted to Appellant's third and fourth

strikes, which yielded two consecutive sentences of twenty-five

years to life, totaling fifty years to life. * This is not a lenient

4. It should be emphasized that Andrade's sentence is not

one fifty-year sentence for thefts totaling $153.54. Appellant, in fact,

is facing two consecutive twenty-five year sentences for two separate

felony offenses. The Majority's comparison of Andrade's sentence to

other" Three Strikes" defendants misses this point. (Majority Opinion

15286). Appellant's sentence is "twice as long” as the sentences of

these other defendants because he as committed twice the number of

offenses. See People v. Cline, 71 Cal. Rptr. 2d 41 (affirming sentence

of 25 years to life for theft of clothing); People v. Goodwin, 69 Cal.

Rptr. 2d 576 (affirming sentence of 25 years to life for stealing a pair

sentence, however, it is equally clear that the Appellant is a

recidivist. His probation report sets forth, in addition to the

above enumerated offenses, two separate federal convictions for

transporting marijuana, dismissal of seven state residential

burglary charges, and a parole violation for escape from federal

prison. The probation report refers to Appellant's acknowledged

heroin addiction and that Appellant admits to stealing to support

his drug habit. The probation report also states that Appellant is

unemployed and does not help care for his three children.

Before his most recent conviction, Appellant had been in and

out of state or federal prison a total of six times. Under such

circumstances, it is rational for a sentencing court to determine

that a term of twenty-five years to life is not a grossly

disproportionate sentence for each of Appellant's current crimes.

One should neither exaggerate nor minimize Appellant's

culpability. His guilt is not in dispute. Nor is the fact of his

recidivism, nor the applicability of the three strikes sentencing

law. The simple statement of his history of criminal activity is

of pants); People v. Terry, 54 Cal. Rptr. 2d 769 (affirming sentence

of 25 years to life for stealing handbag left in open car). See also

Pearson v. Ramos, 237 F.3d 881, 886 (7th Cir. 2001) ("in any rate it

is wrong to treat stacked sanctions as a single sanction. To do so

produces the ndiculous consequence of enabling a prisoner, simply

by recidivating, to generate a colorable Eighth Amendment claim.");

Hawkins v. Hargett, 200 F.3d 1279, 1285 (10th Cir. 1999) (finding

no Eighth Amendment violation in sentences totaling 100 years when

these sentences were for combined separate offenses of rape and

robbery); United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988)

("Eighth amendment analysis focuses on the sentence imposed for

each specific crime, not on the cumulative sentence."); State v. Four

Jugs of Intoxicating Liquor, 58 Vt. 140, 2 Atl. 586, 593 (1886),

quoted in O'Neil at 331 ("It would scarcely be competent for a person

to assail the constitutionality of the statute prescribing punishment for

pe ye a that he had committed so many burglaries

if puni t for each were inflicted i i

in prison for life."). ee

enough to show that the state court's determination of the proper

punishment--even if found to be erroneous--was not clearly

erroneous as this Court has defined it. See Van Tran v. Lindsey,

212 F.3d 1143, 1153-54 (9th Cir. 2000) ("we hold that under

AEDPA we must reverse a state court's decision as involving an

“unreasonable application’ of clearly established federal law . .

. when our independent review . . . does not merely allow us

ultimately to conclude that the petitioner has the better of two

reasonable legal arguments, but rather leaves us with a ‘firm

conviction’ that one answer, the one rejected by the court, was

correct and the other, the application of the federal law that the

court adopted, was erroneous"). Therefore, to repeat, a "rational

basis" exists for the state of California to conclude that the

interests of society are best served by Appellant's incarceration

for a minimum of fifty years. Harmelin, 501 U.S. at 1004

(“rational basis exists" to justify life in prison without

possibility of parole for drug possession offense); Van Tran v.

Lindsey, 212 F.3d at 1159 ("some erroneous applications may

nonetheless be reasonable") (citing Williams v. Taylor, 529 U.S.

362, 410 (2000). Defendant's sentence is thus not an

unreasonable application of clearly established federal law.

I respectfully concur in part and dissent in part.

APPENDIX B

[Filed February 18, 1999]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA-WESTERN

DIVISION

LEANDRO ANDRADE, ) CV 98-6776-CAS

) (SH)

) JUDGMENT

Petitioner, )

)

v. )

)

ERNEST B. ROE, )

)

Respondent. )

)

Pursuant to the Order of the Court adopting the

conclusions and recommendations of the United States

Magistrate Judge,

IT IS ADJUDGED that the Petition for Writ of Habeas

Corpus is dismissed with prejudice.

DATED: February 18, 1999

DISTRICT JUDGE

THIS CONSTITUTES NOTICE OF ENTRY AS

REQUIRED BY FRCP RULE 77 (d)

APPENDIX C

[Filed February 19, 1999]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA-WESTERN

DIVISION

LEANDRO ANDRADE, ) CV 98-6776- CAS (SH)

) ORDER ADOPTING

) REPORT AND

Petitioner, ) RECOMMENDATION

) OF UNITED STATES

v. ) STATES MAGISTRATE

) JUDGE

)

ERNEST B. ROE, )

)

Respondent. )

)

Pursuant to 28 U.S.C. Section 636(b)(1)(C), the

Court has reviewed the Petition, all of the records and files

herein and the attached Report and Recommendation of the

United States Magistrate Judge, and has made a de novo

determination of the Report and Recommendation. The Court

concurs with and adopts the conclusions of the Magistrate

Judge.

IT IS ORDERED that the Petition filed herein is

dismissed with prejudice.

THIS CONSTITUTES NOTICE OF ENTRY AS

REQUIRED BY FRCP RULE 77 (d)

iT IS FURTHER ORDERED that the Clerk shall serve

copies of this Order, the Magistrate Judge's Report and

Recommendation and the Judgment herein by the United

States mail on petitioner and counsel for respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED:_February 18, 1999

_' =

CHRISTINA A. SNYDER

UNITED STATES DISTRICT

JUDGE

APPENDIX D

[Filed February 19, 1999]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA-WESTERN

DIVISION

LEANDRO ANDRADE, ) CV 98-6776-CAS (SH)

) REPORT AND

Petitioner, ) RECOMMENDATION

) OF UNITED STATES

v. ) MAGISTRATE JUDGE

)

ERNEST B. ROE, )

)

Respondent. )

)

This Report and Recommendation is submitted to United

States District Judge Christina A. Snyder pursuant to 28 U.S.C.

§ 636 and General Order 194 of the United States District Court

for the Central District of California.

I. PROCEDURAL BACKGROUND

On March 21, 1996, petitioner was found guilty of two

felony counts of petty theft, in violation of California Penal

Code § 666. (C.T. pp. 106-108.)/” (Case No. FMV-018257,

which charged petitioner with the first count of petty theft with

a prior count, was consolidated with San Bernardino County

Superior Court case number FMV-09140, which charged

1. “C.T.” refers to “Clerks’s Transcripts”.

petitioner with a second petty theft with a prior count.)

The Information in Case No. FMV-018257 also alleged

that petitioner had sustained three prior serious felony

convictions within the meaning of California Penal Code § 667,

subdivisions (b) through (i). Specifically, the prior felony

convictions involved three separate residential burglaries

committed by petitioner on April 26, 1983. (C.T. p. 46.) On

March 27, 1996, the jury found the prior conviction allegations

true. (C.T. pp. 189-90.)

Petitioner was sentenced to prison for twenty-five years to

life on each of counts one and two, pursuant to California Penal

Code § 667(e)(2), and ordered to serve the terms consecutively.

(C.T. pp. 247-48.) On May 13, 1997, the California Court of

Appeal affirmed the judgment. (Ret., Lodgment 3.) On July 23,

1997, the California Supreme Court denied petitioner's Petition

for Review. (Ret., Lodgment 5.)

On August 19, 1998, petitioner filed a Petition for Writ of

Habeas Corpus (the “Petition") in this court. On September 9,

1998, respondent filed an Answer, followed by a Return on

September 25, 1998. In the Return, respondent argued that

petitioner had failed to exhaust state remedies. On October 1,

1998, petitioner filed a Traverse.

On October 2, 1998, this court found that petitioner had

fairly presented both of his claims to the California Supreme

Court, and ordered respondent to file a Supplemental Return

addressing the merits of the Petition. See Minute Order dated

October 2, 1998. On November 2, 1998, respondent filed its

Supplemental Return. Petitioner filed a Supplemental Traverse

on December 22, 1998. The matter has now been taken under

submission.

II. STATEMENT OF FACTS

Petitioner's two current felony convictions for petty theft

(with prior theft convictions) result from two separate occasions

in November 1995, during which petitioner stole videotapes

from two different K-Mart stores. (R.T. pp. 68-101, 117-134.”

Ill. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA") works substantial changes to [the statutes] which

authorize federal courts to grant the Writ of Habeas corpus.

Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d

827 (1996). The instant Petition was filed on August 19, 1998,

and must be analyzed pursuant to the AEDPA.

Section 2254(d) of Title 28 U.S.C. now reads:

“An application for a Writ of Habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim--

“(1) resulted in a decision that was contrary to, or

involved an unreasonable application of clearly

established Federal law, as determined by the

Supreme Court of the United States; or

“(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

IV. DISCUSSION

1. California's Three Strikes Law is not unconstitutional

vague or ambiguous.

2. “R.T." refers to "Reporter's Transcripts”.

Petitioner alleges that California's Three Strikes Law is

unconstitutionally vagué and ambiguous. (Pet., p. 6; Pts. &

Auths., Ground I.) He claims that he was sentenced under this

statute even though he only had one prior prison commitment”,

and that the statute's vagueness and ambiguity allow for

subjective, arbitrary and discriminatory application. (Id.) He

further argues that the statute does not giv: sp2cific notice of

the punishment it entails. (Id.) Accordingly, he argues, "(t]he

Three Strikes [L]aw violates basic fundamental principals of the

Due Process Clause and Equal Protection of the laws..." (Id.)

California Penal Code § 667, subdivisions (b) through (i),

sets forth what is commonly known in California as the "Three

Strikes Law". The statute provides, in relevant part, that if a

defendant is convicted of more than one felony and it has been

pled and proved that he has more than one prior felony

conviction as defined in California Penal Code § 667,

subdivision (d) , he shall be sentenced to an indeterminate term

of at least twenty-five years to life for each current conviction

and the sentences shall be consecutive. § 667, subdivisions

(c)(6) and (e)(2)(A)(ii).

In the present case, petitioner was convicted of committing

two felonies, with additional true findings as to allegations that

petitioner had sustained three qualifying prior felony

convictions. (C.T. pp. 106-08, 189-90.) In accordance with the

Three Strikes Law, petitioner was sentenced to two consecutive

twenty-five year to life terms. (C.T. pp. 247-48.)

The fact that petitioner only served one prior prison term

prior to receiving the two current convictions is not relevant to

3. Inhis Petition for Review before the California Supreme

Court, petitioner argued that the trial court should not have found that

his prior three burglary convictions constituted multiple strikes

because he only served one prior prison commitment for all three

convictions. (Ret., Lodgment 4, p. 8.)

his argument that he should not have been sentenced under the

Three Strikes Law. As discussed above, California Penal Code

§ 667 (e)(2) clearly allows for petitioner to receive the sentences

the trial court imposed on him.’

His argument that the statute is vague and ambiguous

because it is unclear whether his three prior (burglary)

convictions, which were not brought and tried separately,

constitute only one prior conviction or multiple prior

convictions, also fails. (Pet., p. 6; see also Pet. for Rev.,

Lodgment 4, pp. 8-13.) Respondent correctly notes that a

federal court must, when considering a challenge to the validity

of a state law, consider any limiting construction that a state

court has given. Kolender v. Lawson, 461 U.S. 352,356 (1983),

quoting ao

Estates, 455 U.S. 489, 494 (1982).

California appellate courts, including the California

Supreme Court, have interpreted the Three Strikes Law as not

requiring that a prior felony be brought and tried separately

from another qualifying conviction in order to be counted as a

separate strike. People v. Fuhrman, 16 Cal. 4"930 (1997) ("The

reference to ‘prior conviction’ in Pen. Code, § 667, subd. (d),

which defines a prior felony conviction for purposes of the three

strikes law, and which does not contain an explicit ‘brought and

tried separately’ limitation, is neither vague nor ambiguous.").

Therefore, the state courts’ rejection of petitioner's argument

regarding the statute's alleged vagueness or ambiguity was

reasonable and consistent with Kolender and Village of

Hoffman Estates.

2. Sentencing petitioner under the Three Strikes Law

4. To the extent that petitioner is attempting to argue that his

sentence is improper under California Penal Code § 667.5,

petitioner's argument fails. Petitioner was not sentenced under §

667.5, but under § 667(e)(2).

Clause of the Fourteenth Amendment.

The Due Process Clause of the Fourteenth Amendment

provides that no state "shall deprive any person of life, liberty

or property without due process of law". U.S. Const. amend.

XIV. "[T]he Due Process Clause contains a substantive

component that bars certain arbitrary, wrongful government

actions ‘regardless of the fairness of the procedures used to

implement them’." Foucha v, Louisiana, 504 U.S. 71, 79, citing

Zinermon v. Burch, 494 U.S. 113, 125 (1990). "Freedom from

bodily restraint has always been at the core of the liberty

protected by the Due Process Clause from arbitrary

governmental action.” Foucha, citing Youngberg v. Romeo, 457

U.S. 307, 316(1982).

Under its police power, however, a state may imprison

convicted criminals for the purposes of deterrence and

retribution. Foucha, 504 U.S. at 80; Bearden v. Georgia, 461

U.S. 660, 669 (1983). The constitutional limit placed on the

state's power by the Fourteenth Amendment is "that the nature

and duration of the commitment [must] bear some reasonable

relation to the purpose for which the individual is committed.”

406 U.S. 715,737 (1972). The United States

Supreme Court has found valid the objective of punishing

repeat offenders more severely by imposing longer prison

sentences on them. United States v. Salerno, 481 U.S. 739

(1987).

The intention of the Three Strikes Law was to sentence

repeat felony offenders to longer sentences for the purposes of

individuals from society. California Penal Code §667(b); see

also People v. Kilborn ,41 Cal. App. 4th 1325, 1328 (1996),

People v. Cooper, 43 Cal. App. 4th’ 815, 826 (1996). In

petitioner's case, the law accompiished this by counting his

three qualifying prior felony convictions as "strikes", thus

imposing on his current two felonies, whether serious or not”,

a minimum 25 years to life sentence on each of them. (See Cal.

Pen. Code § 667 (e)(2); C.T. pp. 106-08, 189-90, 247-48.)

Under Foucha, Jackson, and Salerno, above, the resulting

sentence petitioner received was a rational means for achieving

the legislature's objective.

In light of the foregoing, the state courts’ rejection of

petitioner's claim that the Three Strikes Law violates the Due

Process Clause of the U.S. Constitution was reasonable and

consistent with United States Supreme Court precedent.

3.5 — lex the Three Strikes I

lid ‘olate his ric! : ion of

laws.

Petitioner also claims that the Three Strikes Law violates

his right to equal protection of the law because its application

is arbitrary. (Pet., p. 6; Pts. & Auths.) The core of any federal

equal protection claim is the assertion that similarly situated

people are treated differently. Petitioner has not shown that the

Three Strikes Law treats him differently from other felons with

two prior qualifying felony convictions. A classification based

on criminal record is not a suspect classification. Hunter v.

Erickson, 393 U.S. 385 (1969); Levy v. Louisiana, 391 U.S. 68

(1968); Korematsu v, United States, 323 U.S. 214 (1945).

California defines the classification into which petitioner

falls as recidivists with two prior qualifying felony convictions.

This classification is based on petitioner's criminal record, thus

it is not suspect. Hunter, id. Since the classification is not

5. In his Traverse petitioner argues that his two current

convictions were not "serious", because they involved shoplifting

merchandise valued at a total of $153.54. (Trav., p. 12.) However,

California Penal Code § 667(e)(2), under which petitioner was

sentenced, does not require that the current convictions be "serious".

suspect, petitioner's claim should be analyzed under the rational

basis test, not strict scrutiny. Hunter, id. Thus, the classification

into which petitioner falls need only rest on "some ground of

difference having a fair and substantial relation to the object of

the legislation, so that all persons similarly circumstanced shall

be treated alike”.

of Virginia, 253 U.S. 412, 415 (1920).

Since the object of the Three Strikes Law is to deter and to

the worst felons from society, drawing the line at

felons who already have two prior serious felonies is not

irrational. Pell v. Procunier , 417 U.S. 817, 822-23 (1974) (state

has legitimate interest in confining prisoners to deter crime and

to protect society by quarantining criminal offenders until

rehabilitative process can work). As discussed above, the High

Court has found it rational to punish recidivists with longer

sentences. See United States v. Salerno, 481 U.S. 739 (1987).

Accordingly, it is reasonable under federal law for the

California legislature to classify felons in this manner.

Therefore, this court finds that the state courts’ rejection of

petitioner's equal protection claim was reasonable and

consistent with United States Supreme Court precedent.

4. , a ter the TI Strk I

does not constitute cruel and unusual punishment

under the Eighth Amendment of the U. S.

Constituti

Lastly, petitioner claims that his sentence constitutes cruel

and unusual punishment in violation of the Eighth Amendment

to the United States Constitution.”

6. To the extent petitioner also claims that his sentence

constitutes cruel and unusual punishment in violation of his state

constitutional rights, petitioner has failed to state a federal question,

and his claim should be dismissed. Federal habeas corpus relief is

available only on behalf of a person in custody in violation of the

The Eighth Amendment does not require strict

proportionality between the sentence and the crime; rather, it

forbids only extreme sentences that are "grossly

disproportionate" to the crime. Harmelin v. Michigan, 501 U.S.

957 (1991) (Kennedy, J., concurring). Moreover, the United

States Supreme Court has found it proper to punish defendants,

not only for their current offense, but also for their recidivism.”

Rummel v. Estelle, 445 U.S. 263, 284 (1980). The point at

which to draw the line for additional punishment is "largely

within the discretion of the punishing jurisdiction". Rummel,

445 U.S. at 285.¥ |

The California legislature is within its rights under federal

law to group repeat offenders in categories which are rationally

defined, and which take into account the defendant's recidivism

as a sentencing factor. Thus, any proportionality evaluation

would consider, not only petitioner's current felony convictions,

but his recidivist behavior as well. Under the High Court's

precedents, petitioner's sentence is not “grossly

disproportionate" for felony convictions with recidivist

behavior indicated by three prior qualifying felonies. As such,

petitioner's sentence under the Three Strikes Law does not

violate the Eighth Amendment, and the state courts’ conclusions

to this effect were reasonable applications of federal law.

V. RECOMMENDATION

Constitution or laws or treaties of the United States. 28 U.S.C. §

2254(a). See also Estelle v. McGuire, 502 U.S. 62, 68 (1991).

7. Inhis Traverse, petitioner concedes that he is a recidivist.

(Trav., p. 13)

8. "[O]utside the context of capital punishment, successful

challenges to the proportionality of particular sentences [are]

exceedingly rare. Solem v. Helm, 463 U.S. 289-90 (quoting Rummel

y. Estelle, 445 U.S. 263, 272) (emphasis omitted).

IT IS HEREBY RECOMMENDED that the Court issue

(1) an Order approving and adopting this Report and

Recommendation, and (2) a Judgment dismissing the Petition

with prejudice.”

DATED: 1-11-99

STEPHEN J. HILLMAN

UNITED STATES

MAGISTRATE JUDGE

NOTICE

Reports and Recommendations are not appealable to the

Court of Appeals, but are subject to the right of any party to file

Objections as provided in the Local Rules Governing the Duties

of the Magistrate Judges, and review by the District Judge

whose initials appear in the docket number. No Notice of

Appeal pursuant to the Federal Rules of Appellate Procedure

should be filed until entry of the Judgment of the District Court.

9. In light of this court’s recommendation, petitioner’s

request for an evidentiary hearing is denied.

APPENDIX E

NOT FOR PUBLICATION

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA

THE PEOPLE,

E018257

Plaintiff and Respondent,

(Super.Ct. No.

FWV08781)

OPINION

LEANDRO ANDRADE,

Defendant and Appellant.

ee ee ee ee eee ee”

APPEAL from the Superior Court of San Bernardino

County. Joan M. Borba, Judge. (Judge of the Municipal Court,

assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.

Const.) Affirmed.

Jerry D. Whatley, 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 Douglas P. Danzig, Deputy

Attorney General, for Plaintiff and Respondent.

After a jury found defendant guilty of two counts of petty

theft with a prior theft conviction and also returned true findings

on the special allegations that defendant had two prior serious

felony convictions within the meaning of Penal Code section

667, subdivisions (b) through (i), the trial court sentenced

defendant to serve two consecutive terms of 25 years to life

under the Three Strikes Law.

Defendant raises numerous issues in this appeal, only two

of which are directed at challenging his felony convictions. The

remainder of defendant's claims, the details of which we recount

below in connection with our discussion of his assertions, are

directed at challenging defendant' s senterice of 50 years to life

in state prison. We conclude, for reasons we explain below, that

defendant's contentions all lack merit. Therefore, we will affirm

the judgment.

DISCUSSION

Resolution of defendant's various contentions does not

require a separate or detailed recitation of the facts surrounding

defendant's crimes. Therefore, we will recount only those facts

pertinent to defendant's claims and we will do so in our

discussion of the pertinent issue. For our purposes, it 1s

sufficient to note that defendant’ s current convictions for petty

theft with a prior theft conviction stem from two separate

occasions on which defendant stole videotapes from two

different K-Mart stores.

INADEQUATE WAIVER OF RIGHTS IN ADMITTING

PRIOR

Before trial, defendant admitted that he previously had

been convicted of petty theft for purposes of the Penal Code

section 666 charges. As a result of that admission, the

prosecutor was precluded from presenting evidence of that prior

offense to the jury. In this appeal, defendant contends his

admission was invalid because the trial court did not advise him

of his rights and consequently did not obtain a valid waiver of

those rights as required under Jn re Yurko (1974) 10 Cal.3d 857.

In People v. Bouzas (1991) 53 Cal.3d 467, the Supreme

Court held “that the prior conviction and incarceration

requirement of [Penal Code] section 666 is a sentencing factor

for the trial court and not an ‘element' of the section 666

‘offense’ that must be determined by a jury." (Id. at p. 480.)

Therefore, a defendant has the "right to stipulate to the prior

conviction and incarceration and thereby preclude the jury from

learning of the fact of his prior conviction." (Ibid.) Relying on

Bouzas, Division Four of the First District concluded in People

v. Witcher (1995) 41 Cal.App.4th 223, "Because the prior

convictions and incarcerations were not elements of the section

666 offense which the jury was required to determine,

appellant's pretrial ‘admission' of them was, in effect, a

stipulation to their validity for the purpose of keeping them

from the jury. Appellant bas cited no authority for the

proposition that a defendant must be admonished about his

constitutional rights when he enters into such a self-serving

stipulation, and we decline to create such authority. He has

received the benefit of his bargain. The prosecution was not

allowed to prove his prior felony convictions and incarcerations

before the jury. We will not now countenance an after-the-fact

contention that his stipulation did not meet minimum

constitutional standards." (/d. at pp. 233-234.) "Bouzas teaches

us that while priors are not an 'element' of a section 666 offense,

they do serve to raise a petty theft to a felony with attendant

penal consequences. [Citation.] Nevertheless we are not

convinced that Bouzas or any other national or state authority

requires that a stipulation for section 666 purposes demands the

full panoply of constitutional admonitions required to properly

admit charged prior convictions." (/bid., orig. emphasis.)

Despite defendant's urging we do otherwise, we adopt the

view expressed in People v. Witcher and, for the reasons stated

in that opinion, reject defendant's claim in this appeal.

SUFFICIENCY OF THE EVIDENCE TO PROVE

DEFENDANT'S PRIOR CONVICTIONS WERE

BURGLARIES OF INHABITED DWELLINGS

The amended felony information alleged defendant had

three prior serious felony convictions within the meaning of

Penal Code section 667, subdivisions (b) through (i) namely

three residential burglary convictions on or about April 26,

1983. The evidence presented in the trial court to prove those

prior convictions established that all three crimes were

residential burglaries to which defendant pleaded guilty ina

single proceeding. The abstract of judgment as well as the trial

court's comments at defendant's sentencing hearing reflect the

burglaries were all first degree. Defendant contends that

evidence is insufficient to prove his prior convictions were for

serious felonies within the meaning of Penal Code section 667,

subdivision (d) (1) because the evidence does not establish the

burglaries were of inhabited dwellings. We disagree. .

The evidence presented in the trial court established

defendant pleaded guilty to three counts of burglary, all three

burglaries involved residences and counsel stipulated the

burglaries were first degree. By definition, first degree burglary

is burglary of an inhabited dwelling. (Pen. Code, § 460.)

Consequently and contrary to defendant's apparent view, no

other evidence was necessary to prove the burglaries were of

inhabited dwellings and, therefore, serious felonies within the

meaning of Penal Code section 667, subdivision (d)(1).

Accordingly, we reject defendant's challenge to the

sufficiency of the evidence.

SENTENCING ERROR

Defendant's remaining claims of error are all directed at his

sentence of 50 years to life in state prison. As noted above, the

trial court imposed that sentence, as it was required to do given

defendant’ s two prior serious felony convictions, under the

Three Strikes Law. We first address defendant' s challenge to

the trial court's imposition of two consecutive sentences of 25

years to life.

A. Consecutive Sentences

Defendant contends consecutive sentences of 25 years to

life are not authorized under the Three Strikes Law. According

to defendant, when a defendant is convicted of more than one

current felony, as in this case, consecutive sentencing applies

only to calculating defendant's minimum term of imprisonment

under the alternatives set forth in Penal Code section 667,

subdivisions (¢)(2)(A)(i) and (iii). Defendant argues, "If those

options, including imposition of consecutive terms, do not yield

at least 25 years as a minimum term, then the minimum term is

25 years, under option (e)(2)(A)(ii).” In other words, defendant

contends subdivision (e)(2)(A)(ii) specifies that where the

greater term is 25 years to life, that is the maximum term a

defendant may receive under the Three Strikes Law.

Defendant’ s claim is identical to the claim addressed and

rejected by the Fifth District in People v. Ingram (1995) 40

Cal.App.4th 1397, 1406-1409. Defendant asserts Ingram was

wrongly decided and urges us not to follow that case. We do not

share defendant' s view. It occurs to us, as it did to the court in

Ingram, that under defendant's interpretation of subdivision (e),

defendants convicted of multiple current felonies would receive

the same sentence as a defendant convicted of only a single

current felony. As the Jngram court observed, "[D]efendant's

theory fails to account for all current felony offenses in arriving

at the minimum term. Under his construction, a defendant

currently convicted of a single residential burglary and a

defendant convicted of two or even three separate residential

burglaries would receive the same sentence. It would be

contrary to the clear intent of the law to impose one 25-year-to-

life term regardless of the number of felonies for which the

defendant stands currently convicted. [J] The language of

subdivision (c)(6) is clear and unambiguous: ‘If there is a

current conviction for more than one 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 subdivision (e). "

(People v. Ingram, supra, 40 Cal. App.4th at 1408.) Defendant

here committed two petty thefts on separate occasions after

having previously been convicted of petty theft and thereby

committed two separate felonies for which the trial court

correctly sentenced defendant to two consecutive mandatory

minimum terms of 25 years to life in state prison for a total

minimum term of 50 years.

B. Priors Must Be Brought and Tried Separately

Undaunted by the complete absence of language requiring

that prior convictions for purposes of the Three Strikes Law

must have been brought and tried separately, defendant

contends such a requirement must be implied precisely because

other recidivist statutes contain such provisions. Therefore,

defendant claims he suffered only one prior serious felony

conviction because, as noted above, defendant's three first

degree burglary convictions all resulted from a single

proceeding in which defendant pleaded guilty to numerous

charges.

The precise argument defendant raises in this appeal was

addressed and rejected by Division One of the First District in

People v. Allison (1995) 41 Cal. App.3d 841, 844, 845 and

Division Three of the Second District in People v. Askey (1996)

49 Cal. App.4th 381,386. For the reasons stated in those

opinions, we reject defendant's claim in this appeal. Bluntly

stated, if the Legislature had meant for prior serious or violent

felony convictions to be brought and tried separately under the

Three Strikes Law, it would have said so.

C. Remand for Resentencing

Defendant contends we must remand this case to the trial

court for resentencing under People v. Superior Court (Romero)

(1996) 13 Cal.4th 497, in which the Supreme Court held that

trial courts have discretion under Penal Code section 1385,

subdivision (a) to strike prior serious felony allegations. As the

Supreme Court explained, "A defendant serving a sentence

under the Three Strikes law [citations] imposed by a court that

misunderstood the scope of its discretion to strike prior felony

conviction allegations in furtherance of justice pursuant to

section 1385(a) may raise the issue on appeal, or, if relief on

appeal is no longer available, may file a petition for habeas

corpus [in the sentencing court] to secure reconsideration of the

sentence." (People v. Superior Court (Romero), supra, 13

Cal.4th at p. 530, fn. 13.)

The record in this case does not disclose the trial court’ s

understanding regarding its discretion to strike defendant's prior

felony convictions because neither defendant nor the prosecutor

raised the issue at sentencing.” Because defendant did not ask

the trial court to exercise discretion and the trial court did not

express its view in that regard, the record does not establish that

the trial court misunderstood its discretion. "From a silent

record, we cannot determine the sentencing court

misunderstood its authority or discretion. 'We must indulge in

every presumption to uphold a judgment, and it is defendant's

burden on appeal to affirmatively demonstrate error -- it will not

be presumed. [Citation.]' [Citations.]" (People v. White Eagle

(1996) 48 Cal. App.4th 1511, 1523.) We find no error on this

silent record. Defendant's recourse, therefore, is to pursue this

claim by way of a petition for writ of habeas corpus in the trial

court.

Defendant also contends we must remand this case for

resentencing not only to allow the trial court to exercise

discretion to strike one or more of defendant's prior felony

convictions but also to exercise discretion to impose

misdemeanor sentences on defendant's petty theft convictions.

1. As the Attorney General points out, defendant did file a

pretrial motion to strike defendant's prior serious felony convictions.

While that motion was founded on numerous claims, the trial court’

s discretion to strike the prior serious felony convictions was not one

of them. Consequently, in denying that motion without prejudice, as

the trial court did here, the trial court did not expressly or impliedly

reveal its view with respect to its discretion to strike prior felony

convictions under the Three Strikes Law. Defendant did not renew his

motion to strike the prior serious felony allegations at his sentencing

hearing.

Defendant raised this issue in the trial court on March 20, 1996,

when, after the prosecution rested its case, defendant made an

oral "17(b)(4) motion" which the trial court immediately denied,

without discussion.

As with defendant's claim under People v. Superior Court

(Romero) the record here does not establish that the trial court

was unaware of its power to reduce a so-called wobbler felony

to a misdemeanor under Penal Code section 17. While the

Supreme Court recently resolved this issue favorably to

defendant in People v. Superior Court (Alvarez) (1997) 14

Cal.4th 968, at the time defendant made his motion in March of

1996, several appellate courts also had adopted the position

advanced by defendant in this appeal. (See People v. Trausch

(1995) 36 Cal. App.4th 1239; People v. Vessell (1995) 36 Cal.

App.4th 285; People v. Superior Court (Perez) (1995) 38 Cal.

App.4th 347; People v. Dent (1995) 38 Cal.App.4th 1726.)

Here, unlike the Romero issue where we declined to presume

error from a silent record, we must presume the trial court was

aware of the cited authority and therefore declined to exercise

its power under Penal Code section 17 to reduce the wobbler

felonies to misdemeanors.” Accordingly, we must reject

defendant's request that we remand this matter for resentencing.

In doing so, we do not intend to preclude the trial court, should

it determine to reconsider defendant's sentence under the habeas

corpus procedure, from exercising discretion under Penal Code

section 17. We hold here only that we will not remand this case

to the trial court for resentencing on that issue.

2. To support his claim that trial courts were uncertain

whether they could reduce a third strike wobbler felony to a

misdemeanor at the time of his sentencing, defendant requests, in a

separately filed motion, that we take judicial notice of an appeal by

the Santa Barbara County District Attorney. Defendant's request for

judicial notice is denied. The fact defendant seeks to establish by his

judicial notice request is established by other sources, namely the

cases cited, above, in our discussion.

D. Cruel and Unusual Punishment

Defendant contends his sentence of 50 years to life in state

prison violates both the state and federal constitutional

prohibitions against cruel and unusual punishment. While the

sentence is severe, we must reject defendant's cruel and unusual

punishment claim.

Defendant does not expressly discuss the Eighth

Amendment to the Federal Constitution. However, to the extent

defendant suggests that the proportionality analysis applies

under both the state and federal constitutions, we must question

that assertion. As Division One of this court noted recently in

People v. Ayon (1996) 46 Cal. App.4th 385, the current validity

of the Solem proportionality analysis is questionable in light of

Harmelin v. Michigan (1991) 501 U.S. 957, “the high court's

most recent statement on whether the Eighth Amendment to the

United States Constitution includes a proportionality guarantee

in anoncapital case." (People v. Ayon, supra, 46 Cal.App.4th at

pp. 396-397. ) “Both in this jurisdiction and in other

jurisdictions, habitual offender statutes have long withstood the

constitutional claim of cruel and/or unusual punishment.

[Citations.] The United States Supreme Court addressed the

constitutionality of a Texas recidivist statute requiring life

imprisonment upon conviction of a third felony in Rummel v.

Estelle [1980] 445 U.S. 263. Over the course of nine years,

Rummel had been convicted of fraudulently using a credit card

to obtain $80 worth of goods or services, passing a forged check

in the amount of $28.36 and obtaining $120.75 by false

pretenses. [Citation.] In response to Rummel's argument that

life imprisonment was ‘grossly disproportionate’ to the three

felonies he had committed, the high court concluded the

mandatory life sentence did not constitute cruel and unusual

punishment under the Eighth and Fourteenth amendments.

[Citation.]" (People v. Ayon, supra, 46 Cal.App.4th at p. 397,

orig. emphasis.) Defendant here was convicted of committing

two petty thefts, both elevated to felonies by a 1990 petty theft

conviction, after having committed three residential burglaries

in 1983. Comparing defendant's crimes and criminal history

with that of defendant Rummel, we cannot say the sentence of

50 years to life at issue in this case is disproportionate and

constitutes cruel and unusual punishment under the United

States Constitution.

As the Supreme Court explained in People v. Dillon (1983) -

34 Cal.3d 441, under the California Constitution, "a statutory

punishment may violate the constitutional prohibition [against

cruel and unusual punishment] not only if it is inflicted by a

cruel or unusual method, but also if it is grossly

disproportionate to the offense for which it is imposed." (/d. at

p. 478.) "A penalty offends the proscription against cruel and

unusual punishment when it is 'so disproportionate to the crime

for which it is inflicted that it shocks the conscience and offends

fundamental notions of human dignity.’ [Citation.]" (People v.

King (1993) 16 Cal.App.4th 567, 571, quoting Jn re Lynch

(1972) 8 Cal.3d 410, 424.) "A tripartite test has been established

to determine whether a penalty offends the prohibition against

cruel and unusual punishment. First, courts examine the nature

of the offense and the offender, ‘with particular regard to the

degree of danger both present to society.’ Second a comparison

is made of the challenged penalty with those imposed in the

same jurisdiction for more serious crimes. Third, the challenged

penalty is compared with those imposed for the same offense in

other jurisdictions. [Citations.]" (People v. King, supra, 16 Cal.

App.4th at p. 572, citing Jn re Lynch, supra, 8 Cal.3d at pp.

425-427; In re Reed (1983) 33 Cal.3d 914, 923; and People v.

Hernandez (1985) 169 Cal. App.3d 282, 288.)

With respect to the first factor noted above, defendant

asserts the punishment of 50 years to life is grossly

disproportionate to the severity of the two petty thefts defendant

committed. We agree the sentence is disproportionate to

defendant's criminal culpability when considered in the abstract.

When viewed in the context of defendant's criminal record, not

only his prior burglary convictions but also his later convictions

for transporting marijuana in 1988 and 1990 as well as the fact

that he only had been paroled in 1993, we cannot say the

punishment is grossly disproportional so as to shock the

conscience and thereby violate the state constitutional

prohibition against cruel and unusual punishment.

In addressing the second factor, that defendant’ s

punishment is more severe than that prescribed for more serious

offenses in California, defendant focuses only on his current

offenses of petty theft and compares them with the sentence

imposed for "cold-blooded, premeditated murder." However,

the comparison is inapt because it does not take defendant's

recidivism into consideration. The only appropriate comparison

is with punishment imposed for recidivists like defendant. In

our view, because all three strikes defendants are punished in

the same manner, this second factor effectively is irrelevant.

In addressing the third factor, that defendant's punishment

under the Three Strikes Law is more severe than that imposed

for similar offenses in other jurisdictions, defendant recounts

the numerous differences between California's statute and

recidivist laws in other states. We will not recount the catalogue

of differences defendant cites but, instead, will accept his

representation that only Texas has a recidivist statute

comparable in severity to California's Three Strikes Law. That

representation notwithstanding, it is apparent from defendant's

discussion that numerous other states have laws which impose

severe punishments on repeat felony offenders. We cannot say

the differences between California's statute and those in other

states are so extreme that California's law "strikes a discordant

note... .” (In re Lynch, supra, 8 Cal.3d at p. 436.) "The

purpose of a recidivist statute. . . [is] 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

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." (Rummel v. Estelle,

supra, 445 U.S. at pp. 284-285.)

In short, and in summary, we must reject defendant's

assertion that his sentence in this case constitutes cruel and

unusual punishment in violation of either the state or federal

constitutional prohibitions.

E. Vagueness

Defendant contends, albeit as two separate issues, that the

Three Strikes law is unconstitutionally vague on its face and as

applied to defendant. We address both claims in this section of

our discussion.

Defendant contends the Three Strikes Law is

unconstitutionally vague on its face because it is ambiguous in

numerous respects, examples of which include (1) the phrase

"upon the date of conviction" as used in subdivision (d)(1)

regarding pre-March 7, 1994, prior felony convictions and (2)

the word "term" as used in subdivision (e).

Several recent cases have addressed and rejected thes

precise claims as well as other assertions regarding purported

unconstitutional ambiguities in the Three Strikes Law. For the

reasons stated in People v. Sipe (1995) 36 Cal.App.4th 468,

479-482 and People v. Hamilton (1995) 40 Cal.App.4th 1615,

1618-1619, we reject defendant's claim in this appeal.

We likewise reject defendant's assertion that the statute is

vague and therefore unconstitutional as applied to him. On this

point defendant contends the law is vague as applied to him

because he could not determine whether his prior burglary

convictions, which were not brought and tried separately,

constituted only one prior conviction or multiple prior

convictions. This claim is merely a different articulation of

defendant's assertion, previously addressed and rejected above,

that in order to constitute "strikes," prior convictions must be

brought and tried separately. We will not address defendant's

claim because we have already done so. For the reasons set out

above, the Three Strikes Law does not require prior convictions

be brought and tried separately. Therefore, we reject defendant's _

assertion that the statute is unconstitutionally vague as applied

to defendant. Simply put and contrary to defendant's ar

‘ guments,

the Three Strikes Law is clear on this point.

F. Separation of Powers

As his final claim in this appeal, defendant contends the

Three Strikes Law is unconstitutional because it requires the

prosecutor to plead and prove all prior serious felony

convictions and thereby violates the separation of powers

doctrine. Defendant concedes this issue was addressed and

rejected in People v. Kilborn (1996) 41 Cal.App.4th 1325,

1332-1333. Defendant argues Kilborn is wrongly decided. We

do not share defendant's view. Instead, we find the reasoning

persuasive. Therefore, we reject defendant's claim in this appeal

for the reasons stated in People v. Kilborn, supra.

DISPOSITION

The judgment is affirmed.

NOT FOR PUBLICATION.

McKINSTER

We concur:

HOLLENHORST

Acting P. J.

McDANIEL __

* Retired Associate Justice of the Court of Appeal, Fourth

District, sitting under assignment by the Chief Justice

pursuant to article VI, section 6 of the California

Constitution.

APPENDIX F

Appendix F

[Filed July 23, 1997]

Fourth Appellate District, Division Two, No. E018257

$062030

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

THE PEOPLE, Respondent

Vv.

Sh atee ot Mies id a ae ae

LEANDRO ANDRADE, Appellant

Appellant’s petition for review DENIED without prejudice

to filing a petition for writ of habeas corpus in the sentencing

court. (See People v. Superior Court (Romero) 1996) 13

Cal.4th 497, 530, fn. 13.)

Chief Justice

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.