Amicus Curiae Brief — Lockyer v. Andrade

Suoreme Court, U S$

FILED

(7

No. 01-1127 JUN 17 2002

IN THE SUPREME COURT OF THE ane STATES

BILL LOCKYER, ATTORNEY GENERAL OF THE STATE

OF CALIFORNIA,

Petitioners-Appellees,

v.

LEANDRO ANDRADE,

Respondent-Appellant

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF ON THE MERITS OF AMICUS CURIAE

CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION

DENNIS L. STOUT

District Attorney

County of San Bernardino

State of California

MARK A. VOS

Deputy District Attorney

LANCE A. CANTOS

Deputy District Attorney

GROVER D. MERRITT*

Lead Deputy District

Attorney

*Counsel of Record for

Amicus Cunae CDAA

Appellate Services Unit

412 West Hospitality Lane

San Bernardino, CA 92415

4 20s

GARY T. YANCEY

District Attorney

Contra Costa County

State of California

L. DOUGLAS PIPES

Senior Deputy District Attorney

Post Office Box 670

Martinez, California 94553

QUESTIONS PRESENTED

l. Whether California’s three-strikes law,

providing for a twenty-five year-to-life prison term for

a third strike conviction, violates the Eighth

Amendment’s prohibition against cruel and unusual

punishment when applied to a defendant whose third

strike conviction is for petty theft with a prior theft-

related conviction?

2. Whether, in light of this Court’s existing

jurisprudence concerning the Eighth Amendment and

proportionality in noncapital cases, the judgment of

the California Court of Appeal, holding Andrade’s

consecutive twenty-five years to life sentences for

convictions on two counts of petty theft with a prior,

involved an unreasonable application of clearly

established federal law as determined by this Court

within the meaning of 28 U.S.C. § 2254(d)(1)?

3. Whether the Ninth Circuit or the Fourth

Circuit is correct, concerning the necessity for a

habeas court analyzing a claim under the

Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214, to first decide if

the state court’s determination was erroneous before

deciding whether the determination was contrary to,

or involved an unreasonable application of, clearly

established federal law as determined by this Court?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ..............0ccccseceecseeeeeeees i

TABLE OF CONTENTS. ..........cccccccscecscceceeceeseeesees ii

TABLE OF AUTHORITIES. .............cccececceeeeeeeeeeees iv

IDENTITY AND INTEREST OF AMICUS CURIAE..1

SUMMARY OF ARGUMENT. .............:cccceeceeeeeeeeeees 2

I. THE COURT OF APPEALS MISCONSTRUED

CALIFORNIA PENAL LAW AND

MISCHARACTERIZED THE FACTS OF THIS CASE.

ITS CONCLUSIONS ARE THEREFORE WRONG. ..3

A. RESPONDENT'S PRESENT CRIMES ARE NOT

“MISDEMEANOR PETTY THEFT” UNDER

CALIFORNIA LAW. ..........ccccceceeccsceesecsececsecenseeeees 3

B. “SHOPLIFTING” CARRIES WITH IT VIOLENCE

POTEET IAL,. ..cccccccccccccccccccccccoccccccccccsccccccocescecceccs 6

C. THE COURT OF APPEALS’ OPINION PRESENTS

AN INACCURATE PICTURE OF RESPONDENT'S

CRIMINAL HISTORY. ............ccccccceseceeeeesecseeereeeeees 8

D. THE COURT OF APPEALS’ OPINION IS

PREMISED UPON FALSE COMPARISONG............ 14

Il. RESPONDENT’S SENTENCE DOES NOT

CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT

IN VIOLATION OF THE EIGHTH AMENDMENT.... 21

A. DEFERENCE TO LEGISLATIVE AUTHORITY.. 21

B. ACCEPTANCE OF DIFFERENT PENOLOGICAL

THROES nccccccccccccccccccccccccccccccccccccscscccccoccocococecs 24

C. ACCEPTANCE OF DIVERGENT STATE VIEWS

ON CRIME AND PUNISHMENT. ...............:00ceeeeeeees 25

D. EVALUATION BASED ONLY ON OBJECTIVE

PACTORG.. wccccccccccccccccccccccccccccccccccccccccsccecccsccccccccs 26

E. AVOIDANCE OF EXTREME, GROSSLY-

DISPROPORTIONATE SENTENCES. ............0.00000 27

F. APPLICATION.............cccccccccccsecserscseceeccsereeeeees 28

CONCLUSION ....cccccccccccccccccscccsccccccccscsccccccccccccoes 28

ill

Cases

Andrade v. Attorney Gen. of California...........

270 F.3d 743 (9th Cir. 2001)

Cg ee

433 U.S. 584

97 S. Ct. 2861

93 L. Ed. 2d 982 (1977)

PAGES

passim

Harmelin v. Michigan...................... 11, 15, 21, 24-27

501 U.S. 957

111 S. Ct. 2680

115 L. Ed. 2d 836

(1991)

454 U.S 370

102 S. Ct. 703

70 L. Ed. 2d 556

(1982)

EE ee LE

69 Cal. 2d 613

447 P.2d 117

73 Cal. Rptr. 21 (1968)

cg NE eC

46 Cal. App. 4th 385

53 Cal. Rptr. 2d 853 (1996)

iv

People v. Bank .....--.-::..:::ccccsssssensneceesennsseanenennnens 4

53 Cal. 2d 370

348 P.2d 102

1 Cal. Rptr. 669 (1959)

People v. Bozigiarr........-.:.....0cccceeeeseeeseeneeneeeneesennnns

270 Cal. App. 2d 373

75 Cal. Rptr. 876 (1969)

People v. CruZ.........0..000000 sepninsinsepsesmientaniasenasnenete

13 Cal. 4th 764

919 P.2d 731

55 Cal. Rptr. 2d 117 (1996)

People v. Dotson .........--.::.::ssssseenneeeeeeeeeneeees 5,17, 18

16 Cal. 4th 547

941 P.2d S56

66 Cal. Rptr. 2d 423 (1997)

People v. DOZI€r «...2....0..ccccceersessennnneennnneseeneeeeneeens 17

78 Cal. App. 4th 1195

93 Cal. Rptr. 2d 600 (2000)

147 Cal. App. 3d 23

194 Cal. Rptr. 909 (1983)

20 Cal. 4th 490

976 P.2d 831

85 Cal. Rptr. 2d 280 (1999)

STII ik: IIIT iiteturindadpaninteducticcimaiiadenstadiemmebeseuibenss 9

92 Cal. App. 4th 1417

112 Cal. Rptr. 2d 643 (2001)

IE Gh III ntncinnnictmensdsitnentindiaudennisiguegunsdidenbaninnne 9

24 Cal. App. 4th 22

29 Cal. Rptr. 2d 94 (1994)

STE 0th Ice nincinntattihensntatndsinaidentidiedenndainabiiiuen 18

16 Cal. 4th 508

941 P.2d 64

66 Cal. Rptr. 2d 431 (1997)

i 22, 24

40 Cal. App. 4th 1397

48 Cal. Rptr. 2d 256 (1995)

EE ee ae a Ee 5

24 Cal.App.4th 219

99 Cal.Rptr.2d. 570 (2000)

PRY Oty MI iccncudcnntapnesuatadocsenioisnibiedsbebuntiutiens 25

71 Cal.App. 1502

84 Cal.Rptr.2d (1999)

ETE th Mi nicencndccnduipeciasbesensniiieetenebennebenes 17

78 Cal. App. 4th 918

93 Cal. Rptr. 2d 216 (2000)

Ee eee A. 17

25 Cal. 4th 136

19 P.3d 1129

105 Cal. Rptr. 2d 387 (2001)

a Ci iiceccsintinnccscnesinnsibbdbentiienecaibiniipsiiiuddadiies 11

1 Cal. 3d 755

463 P.2d 763

83 Cal. Rptr. 411 (1970)

Poagle . Rashes ..0000000ccccvcscsercccceresersescssessscesecsooseeees 17

44 Cal. App. 4th 1653

52 Cal. Rptr. 2d 561 (1996)

People v. Superior Court (AlvareZ)..........:0ccsccceeeeeeees 4

14 Cal. 4th 968

928 P.2d 1171

60 Cal. Rptr. 2d 93 (1997)

People v. Superior Court (Romer o)............:.000ee0eeeee 5

13 Cal. 4th 497

917 P.2d 628

53 Cal. Rptr. 2d 789 (1996)

People v. Washingtom. ...........:c:ccseeeeceeneeeenrneeeeennenens 4

243 Cal. App. 2d 681

52 Cal. Rptr. 668 (1966)

People v. Weddle. ...........-:+::00:eeeseseeeeeeeeensennnneenessenes 7

1 Cal. App. 4th 1190

2 Cal. Rptr. 2d 714 (1991)

525 U.S. 1114

119 S. Ct. 890

142 L. Ed. 2d 789

67 U.S.L.W. 3456 (1999)

Rummel v. Estelle ...........00000000+ 8, 13, 21, °3, 25-27

445 U.S. 263

100 S. Ct. 1133

63 L. Ed. 2d 382 (1980)

Vii

. ee

Be RIED vcccasecescanecocnnvansssvescssaveswonsenscssenesocse 24

Solem v. Heli. .............00.0000 7, 11, 15, 21-22, 26-27 ie TEI Til asictinennniccincnonscasecssonscninenusentnsttenionsenansness 3

463 U.S. 277 Be RD witesesccccstipnscesccscascscencesonceseosscoosnesooes 10

103 S. Ct. 3001 BD DFU. BIE nnccscccccccccccescscnscccsccnsoscsencecsens 16

77 L. Ed. 2d 637 WD RPI BI ceetsccccccesnnevesncsosesesoscososensnsones 16, 18

51 U.S.L.W. 5019 (1983) BPI Re icccecccccccssccesescesessscoscnscensesessnves 17

| Be RP Be iccetsccevesssccssescncsenccsnccenesscsscoes 17

ge EE eee nm Q Rhy, 8) rere 17

495 U.S. 575 Oe BP RI cscceccsccntsvecsicescscccssenensnsssconseoes 18

110 S. Ct. 2143 BD Re Fe wicccneccccecssccnecsctecnseseenesecsencsssssennensennnne 9

109 L. Ed. 2d 607 Oe iccninricncsindinnntdnaninaniniiansnnsincnninconnencesee 9

58 U.S.L.W. 4616 (1990) Oe PI sec ciccccscncecssasessccsectsnsanencessnusosesecassconnse 9

Oe IR cnansnnicccenecannsneuccsceseccssusneseseneosessoss 10

ST EY G0 SUID cienichiisdsbitegeninecnessatnienenssensnee 19 B UDOS.GESAD) 2... .ccrccccccccrccccscccccnccccsccsscssoseess 10

864 F.2d 257 (2d Cir. 1988) Oe TR asincccnncnsscninnscosvastnececsscosasovnmmnsncsnenseseses 10

Be REID occcorcessccescccesecsosccsvesssusccesscenssasconncoes 11

Constitutional Provisions PS Cn 9

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United States Constitut..n DB ADO. SIA wn cccvcccscoccccccccsccscccscssvcccsscesossessceees 19

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I Sei cavsecencccncccaccesecsscesasescsenssevecsesonschastlonsncsnes 1S

Statutes

United States Code

iii nicniccnctibctieiciees etipiisteamssaiuisinin i Other Authorities

California Evidence Code David A. Anderson, The Aggregate Burden of Crime, 42

TE cstdenscitdnenniiipeneiansiniatiasiaianinsalbeinnndnedeiicesinienienniienats 11 JL. & Boar. 611 (1DPB)...cccccrcccsccccccscccseccssccscsccscces 6

California Penal Code Myron H. Bright, The Power of the Spoken Word: In

Defense of Oral Argument, 72 lowa L. Rev. 35 (1986).

ib Sir cctnearserennipaniineiesacisiesicemeueiiaianicanattebtianiiiegaimmiciiiinaae GQ __Cpeececccescccccccccccccsesscesccccesesesessnssescoccsooscescsccsossessecese 22

i STITT itn eihiniseenahinnariciisaiiinpneiiaindaiiasiiniianemmbeanatne 18

Sr a cicicinericsnessteaiineiasiariciiiiitaiananparenieitaiaitaimaaieiiantnaiiiiien 7 Jesse H. Choper, Judicial Review and the National

ihe ean lhe dala daraateicidis 4,12 Political Process: A Functional Reconsideration of the

a a a 10, 19 Role of the Supreme Court (U. of Chicago Press 1980).

ET EIN lt cnsccncncenenendeensininnninansnindnnnininitiaii SB _ __ BH ___ eavercccccccrccccccccrscccscccscccssossoscossenseveccsesosscosssoosscceses 22

SPRITE cisinanttiennnnesinenceninindesnninientniinincnmansebenniitin 24

SEITE cahitccintttiesnncennnenemmenionsiibeinninncsnetmadeatiianatias 10 iy

oe ee

John Hart Ely, Democracy and Distrust: A Theory of

Judicial Review (Harvard U. Press 1980).............. 22

Fed. Bureau of Investigation, Crime in the United

States, Uniform Crime Reports (1993, 1999), quailable

at . r : ,

bcemulnpenniesicibbenae 24

Richard C. Hollinger, PhD & Jason L. Davis, 200]

National Retail Security Survey, Security Res. Project,

U. of Fla. (2002), available at

http://www soc.ufledu/srp htm. 2.0.0... 6

William H. Rehnquist, The Notion of a Living

Constitution, 54 Tex. L. Rev. 693 eT 22

California Rule of Court

SRI SES SESE ae SS Ana oe ee 1]

AIS RE A aca ne l

Supreme Court Rule

EERE a aaa eee ae ea l

'

!

IDENTITY AND INTEREST OF AMICUS CURIAE

The California District Attorneys Association

(CDAA) has more than 2,400 prosecutors in its

membership. We present this amicus brief, pursuant

to Supreme Court Rule 37, in support of Petitioners. !

The elected District Attorneys of San Bernardino and

Contra Costa Counties submit this amicus brief as the

attorneys authorized to represent CDAA. We also

have obtained and filed the parties’ written consent to

this brief.

CDAA has a strong interest in preserving

California’s right to sentence recidivist offenders in

the manner which the California State Legislature and

the California electorate have deemed appropriate.

CDAA seeks to ensure that California retains its mght

to develop an independent penological scheme. As

representatives of California’s citizens, CDAA also has

a compelling interest in guarding against the

erosion of the basic tenets of federalism.

While three questions are presented to this

Court, CDAA’s primary concern is only whether

California’s “Three Strikes” sentencing. statutes

constitute cruel and unusual punishment when

applied to Respondent Andrade. Accordingly, we

address only that issue.

\

' Pursuant to Rule 37.6, CDAA discloses that the Attorney

General's Office copied and bound CDAA’s amicus brief.

l

SUMMARY OF ARGUMENT

The Ninth Circuit Court of Appeals’ opinion in

this case contains significant errors. As a

consequence, that court determined that “Three

Strikes” sentencing imposed a cruel and unusual

punishment. The opinion mischaracterizes

Respondent’s present crimes, his criminal history,

and his present sentence. The opinion is also

premised tupon incorrect comparisons between

recidivists’ crimes and non-recidivists’ crimes.

Correct application Eighth Amendment

principles establishes that Respondent’s sentence is

not grossly disproportionate to sentences authorized

for and imposed upon recidivist criminals.

We ask this Court to so hold and, therefore, to

determine that Respondent Andrade’s sentence did

not constitute cruel and unusual punishment.

~~

cc

I.

THE COURT OF APPEALS MISCONSTRUED

CALIFORNIA PENAL LAW AND

MISCHARACTERIZED THE FACTS OF THIS CASE.

ITS CONCLUSIONS ARE THEREFORE WRONG.

The Court of Appeals held that California's

“Three Strikes” statutes? imposed upon Respondent

sentences grossly disproportionate to his crimes and,

therefore, his overall sentence violated the Eighth

Amendment’s prohibition against cruel and unusual

punishment. We believe that the Court of Appeals

erred in its conclusion because it erred in

numerous of its premises.

A. RESPONDENT’S PRESENT CRIMES ARE

NOT “MISDEMEANOR PETTY THEFT” UNDER

CALIFORNIA LAW.

The Court of Appeals repeatedly characterized

Respondent’s present crimes as “misdemeanor petty

theft.” See, e.g., Andrade v. Attorney General of State

of California (9th Cir. 2001) 270 F.3d 743, 746, 749,

760, 766, 767. This is incorrect under California

law.

2 California has two “Three Strikes” statutes. The

California State Legislature enacted the first statute. Cal. Pen.

Code §§ 667(b)-(i). Effective March 7, 1994. The electorate

enacted the second statute on November 8, 1994. Cal. Pen. Code

§ 1170.12. Because Respondent’s crimes were committed on

November 4, 1995, our references are to the initiative version.

3

Respondent’s crimes were felony petty thefts.

“Petty theft with a prior conviction of theft”? has been

part of the California Penal Code since 1872. It is an

“alternative felony crime” - one that is chargeable and

punishable either as a felony or as a misdemeanor.*

An alternative felony crime or “wobbler”

charged as a felony remains a felony unless a court

imposes a misdemeanor sentence. In re Anderson, 69

Cal.2d 613, 664, fn.16, 73 Cal. Rptr. 21, 447 P.2d 117

(1968); People v. Banks 53 Cal.2d 370, 381-382, 1 Cal.

Rptr. 669, 348 P.2d 102 (1959); People v. Bozigian,

270 Cal.App.2d 373, 379, 75 Cal.Rptr. 876 (1969);

People v. Washington, 243 Cal.App.2d 681, 687-688,

52 Cal.Rptr. 668 (1966).

A California sentencing court may reduce a

“wobbler” to a misdemeanor even when the defendant

has suffered prior “felony strike” convictions. People

v. Superior Court (Alvarez) 14 Cal.4th 968, 979, 60

Cal.Rptr.2d 93, 928 P.2d 1171 (1997).° If the court

does not do so, the crime is a felony.

When such a felon has_ suffered prior

convictions within the meaning of California's “Three

Strikes” statutes, they must be proven or admitted.

After the “felony strikes” have been proven or

admitted, the trial judge still may dismiss them.°®

: Cal. Pen. Code §666 requires a present theft event,

a prior conviction for a theft-related crime and a term of

imprisonment in county jail or state prison.

. Cal. Pen. Code §17.

5 Respondent made an oral motion pursuant to

California Penal Code §17 on March 20, 1996, to reduce one or

more of his theft convictions to misdemeanors. The trial court

denied the motion. (See People v. Andrade, No. E£018257,

unpublished opinion of Court of Appeal, May 13, 1997, page 9).

e Cal. Pen. Code §1385

’ \

People v. Superior Court (Romero), 13 Cal.4th 497, 53

Cal.Rptr.2d 789, 917 P.2d 628 (1996). When the

defendant has been found guilty of multiple current

charges, the court may dismiss “felony strikes” as to

one crime and may decline to dismiss them as to

another current crime. People v. Garcia, 20 Cal.4th

490, 499-500, 85 Cal.Rptr.2d 280, 976 P.2d 831

(1999).

If a court does not dismiss all “felony strikes,” a

defendant’s conviction becomes subject to the “Three

Strikes” sentencing statutes. The “Three Stnkes”

statutes supplant the ordinary sentencing scheme for

the underlying felonies. People v. Dotson, 16 Cal.4th

547, 556, 66 Cal.Rptr.2d 423, 941 P.2d 56 (1997);

People v. Superior Court (Romero), supra, at 524.

Thus, a defendant who is convicted of a felony

theft offense and who has suffered at least two

“felony strikes” is not punished simply for felonious

theft. He is punished instead under the Three

Strikes sentencing scheme, which mandates harsh

punishment only for those with the qualifying prior

convictions. In other words, he is punished for his

recidivism. People v. Lawrence, 24 Cal.App.4th 219,

226-227 (2000) 99 Cal.Rptr.2d. 570.

Respondent's present convictions are not for

“misdemeanor petty theft.” Calling Respondent's

present convictions “misdemeanor petty thefts” is

wholly inaccurate.’ They are for felony petty theft,

with a prior conviction of petty theft. This is

4 The memorandum opinion in Riggs v. Caljfornia,

525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 789 (1999), makes the

same error when it characterized Riggs’ conviction as a

“misdemeanor petty theft.”

5

important A sentence of 25 years to life for

“misdemeanor petty theft” may be cruel and unusual

punishment; the same _ sentence for a_ felony

committed by a recidivist who has at least three prior

serious felony comvictions under state law is not.

B. “SHOPLIFTING” CARRIES WITH IT

VIOLENCE POTENTIAL.

The opinion mischaracterizes Respondent's

crimes by pretending that “petty thefts” are crimes

with no violence potential.

Respondent's crimes. involved thefts. of

merchandise from a department store.* On both

occasions, store personnel stopped Respondent as he

left. Such encounters frequently occur. Because

shoplifting is a _ significant problem for retail

establishments, businesses employ security personnel

to detect and to apprehend shoplifters.

Shoplifters who are detected frequently attempt

to escape. Some escape attempts result in violent

. The economic seriousness of Respondent's crimes

is not measured by the value of the property he stole - $153.54 in

videotapes. Shoplifting causes annual losses to merchants

estimated in the billions of dollars, forcing retail businesses like K-

Mart, the victim of Respondent's crimes, to hire and maintain large

security staffs to combat such pestilence. In 2000, for example,

one source indicates that United States retailers lost $32.3 billion

to theft, 1.75% of their total sales, up from $29 billion the year

before, which was 1.69% of total sales. Richard C. Hollinger, PhD

& Jason L. Davis, 2001 National Retail Security Survey, (University

of Florida 2001). Other sources have placed annual shoplifting

losses at $7.2 billion. David A. Anderson, The Aggregate Burden of

Crime, 42 J. Law & Econ. 611, 638 (Univ. Chi. 1999).

6

a A ss

| confrontations when the thieves use force or fear

against store personnel or other citizens attempting to

apprehend them. When a thief in California uses

force or fear to escape with merchandise taken in a

commercial shoplift, the thief is properly charged

with robbery. See, e.g., People v. Estes, 147

Cal.App.3d 23, 194 Cal.Rptr. 909 (1983). These

robberies are punishable under California Penal Code

§211 in the manner in which all unarmed robberies

are punishable.

Confrontations betv’een shoplifters and those

trying to stop them can escalate to deadly

confrontations. See People v. Weddle, | Cal.App.4th

1190, 1198, fn. 9, 2 Cal.Rptr.2d 714 (1991).

This Court has recognized that a crime

presenting a threat of violence is more serious than

a clearly nonviolent offense. Solem v. Helm, 463

U.S. 277, 293-294; 103 S.Ct 3001, 77 L.Ed.2d 637

(1983) [“nonviolent crimes ue less serious than

crimes marked by violence or the threat of violence.”

[emphasis added]].

Cc. THE COURT OF APPEALS’ OPINION

PRESENTS AN INACCURATE PICTURE OF

RESPONDENT’S CRIMINAL HISTORY.

The goals of a recidivist criminal statute are to:

[djeter 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.

Rummel v. Estelle, 445 U.S. 263, 276, 100 S.Ct. 1133,

63, 284-285 [emphasis added]. The Court of Appeals

failed to appreciate certain “propensities” in

Respondent’s background.

1. Respondent’s Felony Strikes Carried

the Potential For Violence.

Respondent’s “felony strikes” consisted of three

convictions for first-degree residential burglary. The

° This fact is noted in Judge Sneed’s concurring and

dissenting opinion in Andrade v. Attorney General, supra, at 772.

Andrade’s probation report establishes that he was arrested and

booked by the Sheriff of San Joaquin County (Stockton),

California, on no less than 10 residential burglaries on November

30, 1982.

8

Court of Appeals characterized these burglary

convictions as being non-violent crimes. Andrade v.

Attorney General, supra, at 761. However, even if a

residential burglary does not actually involve

violence, it has great potential for violence.

In Taylor v. United States, 495 U.S. 575, 110

S.Ct. 2143, 109 L.Ed.2d 607 (1990, the Court

recognized that “burglary is one of ‘the most common

violent street crimes,” and the character of a burglary

“can change rapidly, depending on the fortuitous

presence of the occupants of the home when the

burglar enters, or their arrival while he is still on the

premises.” 495 U.S. at 581; see also id. at 588.

2. California Has Determined That

Residential Burglary Is A Serious Felony.

California’s courts have construed the language

of the serious felony list in Cal. Penal Code § 1192.7(c)

to mean that all burglaries of inhabited residences

are serious felonies is a matter of law. People v.

Cruz, 13 Cal. 4th 764, 773, 112 Cal.Rptr.2d 643, 919

P.2d 731 (1996); People v. Garrett, 92 Cal.App.4th

1417, 112 Cal.Rptr.2d 643 (2001); People v. Gomez,

24 Cal.App.4th 22, 29 Cal.Rptr.2d 94 (1994).

The Court of Appeals failed to appreciate this

determination. The Court thus wrongly avoided

numerous important consequences flowing from

them. First, there is no plea-bargaining of “serious

felony” charges.'° Second, a defendant may not be

released without a hearing aid a finding of “unusual

circumstances.”!! Third, a prior conviction of a

ad Cal. Pen. Code §§1 192.7 (a) and (b).

8 Cal. Pen. Code §§1270.1, 1275(c).

9

serious felony constitutes a mandatory, non-

strikeable five-year enhancement to a current

serious felony conviction.'? Fourth, a prior conviction

of a serious felony constitutes a “felony strike.”'’

Finally, a serious felony conviction may preclude

probation or a suspended sentence on a new felony

conviction,'* and may make a defendant ineligible

for drug treatment for a curremt nonviolent drug

possession offense.'®

These restrictions on burglary prosecutions

reflect the legislative and electoral determination that

the crime of residential burglary is one of the most

serious crimes against the citizens of this state. The

failure of the Court of Appeals majority to

acknowledge this determination makes their other

conclusions flawed.

3. The Court of Appeals Disregarded

Respondent’s Federal Felony Convictions.

After Respondent served a prison term for his

burglaries, he was convicted of transportation of

marijuana in two separate federal prosecutions.

Respondent was sentenced to federal prison after each

conviction. The Court of Appeals majority gave short

shrift to these convictions, saying that “there is no

record that the court considered them when

sentencing Andrade,” and “the federal convictions

therefore should not affect our analysis as they did

not affect the imposition of Andrade’s 50-year-to-life

sentence.” Andrade v. Attorney General, supra, at

760. This “logic” is error.

12s Cail. Pen. Code §667 (a).

3s Cal. Pen. Code §§667/(c), 1170.12(a).

4 ~—s Cal. Pen. Code §§1203.085(a)(b), 1203(k).

‘Ss Cal. Pen. Code §1210.1(b)(1).

10

Respondent’s convictions were listed in the

“prior record” portion of Respondent’s pre-sentence

report. A California court is required to consider a

defendant’s entire criminal history when imposing

sentence.’ Unless the record “affirmatively reflects

otherwise,” the sentencing judge is deemed to have

considered the relevant criteria.'’

The concurring opinion of Justice Kennedy in

Harmelin v. Michigan (1991) 501 U.S. 957, 1002, 111

S.Ct. 2680, 115 L.Ed.2d 836, expanded upon the

Solem Court’s description of the seriousness of illegal

drug dealing'* by pointedly concluding:

“Possession, use, and distribution of

illegal drugs represent ‘one of the

greatest problems affecting the health

and welfare of our _ population.’

[citation] Petitioner’s suggestion that

his crime was nonviolent and

victimless. . . is false to the point of

absurdity. To the contrary, petitioner’s

crime threatened to cause grave harm

to society.”

The Court of Appeals erred again by casting

aside Respondent’s prior federal drug dealing offenses

ed Cal. Pen. Code §1203(b)(3); California Rules of

Court, Rules 4.409 and 4.410.

id California Rules of Court, Rule 4.409; People v.

Noran (1970) 1 Cal.3d 755, 83 Cal.Rptr. 411, 463 P.2d 763;

California Evid. Code §664 [presumption that official duty has

been regularly performed].

16 In Solem v. Helm, supra, this Court described the

crime of heroin dealing as a “very serious offense.” 463 U.S. at

299.

11

before it measured Respondent’s sentence against ihe

Eighth Amendment.

4. If Respondent’s Recidivism Was

“Double-Counted,” His Many Convictions Were Not.

Respondent’s current offenses were charged as

felonies under Penal Code § 666 because of his 1990

misdemeanor conviction of petty theft. However, it

was Respondent’s three felony residential burglary

convictions, not his misdemeanor petty theft

convictions, which exposed him to the life terms.

Thus, although literally true that Respondent’s

“recidivism” was double counted, Andrade v. Attorney

General, supra, at 760, 761, different aspects of his

recidivism had different effects on his state court

sentence.

Ss. Rummel Mandated Consideration of

Respondent’s Prior Prison Terms.

Because this case involves the application of

California’s “Three Strikes” statutes to Respondent,

Andrade v. Attorney General, supra, at 767, it is

appropriate to consider all relevant facts about the

Respondent, whether or not those facts -- such as

service of a prison term -- are a component of “Three

Strikes” sentence provisions.

The Andrade opinion described Respondent’s

“entire criminal history” as: “five felonies, two

misdemeanors, and one parole violation.” Andrade v.

Attorney General, supra, at 760. It fails to mention

that Respondent served three separate prison terms.

Respondent was “in and out of state or federal prison

a total of six times.” Andrade v. Attorney General,

supra, at 772 (Sneed, J., concurring and dissenting).

12

In Rummel uv. Estelle, supra, this Court

emphasized the importance of Rummel’s two pricr

prison terms:

“[A] recidivist must twice demonstrate

that conviction and actual

imprisoiment do not deter him from

returning to crime once he is released.

One in Rummel’s position has been

both graphically informed of the

consequences of lawlessness and given

an opportunity to reform, all to no

avail.”

445 U.S. at 278.

The failure of the Court of Appeals to mention

Respondent’s three prior prison terms casts great

doubt upon the correctness of its ultimate conclusion.

6. Analysis

These shortcomings paint a false portrait of

Respondent’s “propensities.” Respondent is a heroin

user and illegal drug distributor who repeatedly

stole to support his drug habit, who over the years

before the present offenses committed and was

convicted of at least three residential burglaries,

which California law defines as serious felonies with

serious violence potential, who committed and was

convicted of two separate charges of transportation

of marijuana, crimes which constitute a threat to

cause grave harm to society, who was committed to

prison on three separate occasions on these felony

convictions, and whose parole was violated more

than once.

13

D. THE COURT OF APPEALS’ OPINION IS

PREMISED UPON FALSE COMPARISONS.

1. Respondent’s Sentence is Not “50

Years to Life.”

The Court of Appeals’ characterized

Respondent’s sentence as a sentence of “50-years-to-

life,” or words to that effect, Andrade v. Attorney

General, supra, at 746, 767, although at other times

the Court of Appeals correctly called the sentence “two

consecutive indeterminate sentences of 25 years to life

in prison.” /d., at 758.

Respondent was sentenced for two separate

felonies. The correct description of Respondent’s

senténce thus is two consecutive indeterminate

sentences of life in prison, each with a 25-year

minimum term. A correct characterization of

Respondent’s sentence is essential to compare

properly his sentence with the sentences other felons

face.

2. Respondent’s Sentence is Not a “Life

Without Possibility of Parole” Sentence.

The Court declared that Respondent’s sentence

was “the functional equivalent of the sentences ... in

Solem and Harmelin - life in prison without the

possibility of parole.” Andrade v. Attorney General,

supra, at 759. The court did so because the length of

Andrade’s minimum term of his life sentence

exceeded his expected life span. /d.

The sentence known as “LWOP” is an acronym

for “life without the possibility of parole.” The

14

difference is important. The sentences imposed upon

the defendants in Solem v. Helm, supra, and Harmelin

v. Michigan, supra, were life sentences without the

possibility of parole. Solem v. Helm, supra, at 282;

Harmelin v. Michigan, supra, at 2684. Thus, they

would never outlive their imprisonment, no matter

what.

Respondent’s sentence is different from the

sentence imposed on Helm and _é MHarmelin.

Respondent’s sentence is not “without the possibility

of parole.” While he might be 87 years old before he

becomes eligible for parole, and he might not live to

see his 87th birthday, Mr. Andrade has the

possibility of parole. A defendant sentenced in

California to an ordinary life term is eligible for parole

when he or she has served the minimum term. Cal.

Pen. Code §3046. Here, the “minimum term” for each ~

conviction is 25 years.

If a criminal defendant’s age and expected

lifespan were determinative of the character of his life

sentence, any defendant who is 55 years of age and

who is sentenced to a determinate term 25 years in

prison could thereafter claim that he is serving a life |

sentence without the possibility of parole because

actuarial tables tell us that he probably could not

outlive that sentence. Yet a defendant who is 20 years

of age and who is sentenced to prison for 50 years to

life could not make the cruel and unusual

punishment claim, because his or her expected

lifespan would extend beyond the date of his parole

eligibility. Such thinking is dubious logic, at best.

15

3. Respondent’s life sentence is the

shortest per count life sentence permitted by

“Three Strikes” and is not a generic sentence.

The Court of Appeals assumed that

Respondent’s sentence was identical to every other

life term sentence because all California’s “Three

Strikes” sentences are life terms. Andrade v. Attorney

General, supra, at 767, fn.24. The court then used this

fact to conclude that Respondent’s case “is unusual

even when compared to other three-strikes

defendants” who committed more serious crimes. Id.

In truth, Respondent’s minimum term of his life

sentence is the shortest per count minimum term

that Three Strikes permits; it is significantly shorter

than the minimum terms under “Three Strikes” for

current crimes considered to be more serious.

Every person sentenced under the life term

component of California’s “Three Strikes” statutes

receives the same basic sentence - a life term.!9

However, the sentencing of a life term defendant is a

three-step process. Step one is the imposition of the

life term. Step two is the determination of the

minimum term.?° Step three is the imposition of

enhancements.?!

Therefore, although the basic life sentence

under “Three Strikes” is the same for all defendants

who are convicted of a new felony and who have two

or more “felony strikes,” the minimum terms and

enhancements vary greatly depending upon the

ad Cal. Pen. Code §1170.12(c}(2)(A).

2 Cal. Pen. Code §1170.12(c)(2)(A).

21 Cal. Pen. Code §1170.12(c) [*in addition to any

other enhancements or punishment provisions which may apply.”]

16

seriousness of the current offense and the defendant’s

criminal record.

The first method of calculating the minimum

term is a term that is “three times the term otherwise

provided as punishment for each current felony

conviction.”22 People v. Dotson, 16 Cal.4th 547, 552,

66 Cal.Rptr.2d 423, 941 P.2d 56 (1997) [determinate

terms]; People v. Murphy, 25 Cal.4th 136, 105

Cal.Rptr.2d 387, 19 P.3d 1129 (2001); People uv.

Mendoza 78 Cal.App.4th 918, 93 Cal.Rptr.2d

216(2000) [indeterminate terms].

The second method of calculating the minimum

term is a fixed minimum term of 25 years.** People

v. Dotson, supra; Peopie v. Dozier, 78 Cal.App.4th

1195, 1201-1202, 93 Cal.Rptr.2d 600 (2000).

Respondent’s minimum terms resulted from this

option.

The third method of calculating the minimum

term is to calculate the total sentence (including

erhancements) as it would have been calculated in

the absence of “Three Strikes.”?*

After calculating the minimum term for an

offense under all three options, the court must impose

the greatest minimum term.?5 Thus, the minimum

22 Cal. Pen. Code §1170.12(c)(2)(A)(i).

23 Cal. Pen. Code §1170.12(c)(2)(A)(ii).

24 Cal. Pen. Code §1170.12(c)(2)(A)(iii) [“the term

determined by the court pursuant to §1170 for the underlying

conviction. . .”]; People v. Ruiz 44 Cal.App.4th 1653, 1665, 52

Cal.Rptr.2d 561 (1996) [“Option (iii) permits the sentencing court

to calculate the minimum term pursuant to existing law.”]

2s The “Three Strikes” statutes incorrectly use the

term “greater.” Since the correct grammatical term when

comparing three or more choices is “greatest,” California courts

17

term of a defendant with two “felony strikes”

convicted of first degree murder would be 75 years,

the greatest minimum term.”°

This method of calculating the minimum tern)

under “Three Strikes” means that the minimum term

of a defendant convicted of a current violent offense

will always be greater than the minimum term of

Respondent’s life terms.

The third step in the sentencing of a life term

defendant is the addition of sentence enhancements -

e.g., enhancements for use of a firearm or a deadly

weapon or for infliction of great bodily injury, and

status enhancements for prior convictions.?” The

enhancements must be added to and must be

consecutive to the life term,28 and are in additicn to

the minimum term of the life term. People v. Dotson,

supra.

These last two steps produce great gradations

in the length of time that defendants who are

sentenced to life term sentences under California’s

“Three Strikes” statutes must actually serve in prison.

For example, the first degree murderer who utilizes a

firearm and who has two “felony strikes” must be

sentenced under “Three Strikes” to life in prison, with

(..continued)

have construed the statutory term “greater” to mean “greatest.”

People v. Dotson, supra, at 552-553.

26 The prescribed sentence in California for first-

degree murder without special circumstances is 25 years to life.

Cal. Pen. Code §190(a).

el Cal. Pen. Code §1170.12(c) [*[IJn addition to any

other enhancements or punishment provisions which may apply. .

I

28 Cal. Pen. Code §1170.12(c)(2)(B); People v.

Hendrix, 16 Cal.4th 508, 515, 66 Cal. Rptr.2d 431, 941 P.2d 64

(1997).

18

a 75 year minimum term, and two forms of

enhancements - 25 years to life in prison for the

firearm use?? and ten years for the prior serious

felonies.*° The total sentence would be 110 years to

life in prison.

Thus, life-term sentences of violent felons

under “Three Strikes” are considerably longer than

Respondent’s terms.

4. Comparing Multiple Conviction

Sentences With Single Conviction Sentences.

The Court of Appeals’ opinion compared

Respondent’s total sentence, which is comprised of

shorter sentences on multiple current convictions,

to sentences for other persons based on a single

current conviction. The concurring and dissenting

judge in the Court of Appeal caught this error.

Andrade v. Attorney General, supra, at 771, fn.4

(Sneed, J., concurring and dissenting).

To compare Respondent's total sentence for two

new and separate felonies to the sentence of other

persons convicted of only one new felony is a faulty.

comparison. See, e.g., United States v. Aiello, 864

F.2d 257, 265 (2d Cir. 1988); accord, Hawkins v.

Hargett, 200 F.3d 1270, 1285, fn.5 (10th Cir. 1999).

|

5. Comparing A Recidiviet Sentence With

A Non-Recidivist Sentence. -

The Court of Appeals pointedly rejected

Petitioner’s argument that the appropriate comparison

of Respondent’s sentence is to the sentences of other

non-violent recidivists in California, saying that the

argument

“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.”

Andrade v. Attorney General, supra, at 762.

We disagree. It is illogical to compare the

sentence for a habitual criminal under a recidivist

statute, which includes the fact that the felon is a

recidivist offender, to the punishment of other persons

who have committed crimes that in a vacuum are

more serious, but who have not qualified as repeat

felons. The appropriate comparison is between

Respondent’s sentence and the sentences for other

persons who are similarly situated.

20

Il.

RESPONDENT’S SENTENCE DOES NOT

CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT

IN VIOLATION OF THE EIGHTH AMENDMENT.

In Solem v. Helm, supra, this Court articulated

a three-part test for conducting a proportionality

analysis under the Eighth Amendment. These three

parts are: “(i) the gravity of the offense and the

harshness of the penalty; (ii) the sentences imposed

on other criminals in the same jurisdiction; and (iii)

the sentences imposed for commission of the same

crime in other jurisdictions.” 463 U.S. at 292.

In Harmelin v. Michigan, supra, a three justice

concurring opinion articulated five principles that

“give content to the uses and limits of proportionality

review.” These principles are: (A) Deference to

legislative authority in making punishment choices,

(B) Acceptance of different penological theories, (C)

Acceptance of divergent state views on crimes, (D)

Evaluating only objective factors, and (E) Avoiding

extreme, grossly disproportionate sentences. 501

U.S. at 998-1001.

A. DEFERENCE TO LEGISLATIVE

AUTHORITY

The power to define crimes and prescribe the

punishments for their commission is “purely a matter

of legislative prerogative.” Rummel v. Estelle, supra,

at 274. The legislature makes a judgment of the

severity of a crime when it fixes the punishment for

that crime. Solem v. Helm, supra, at 292. Federal

courts should be “‘eluctan|[t] to review legislatively

mandated terms of imprisonment’,” Hutto v. Davis,

454 U.S. 370, 374, 102 S.Ct., 703, 70 L.Ed. 2d 556

21

(1982) citing Rummel v. Estelle, supra, at 274, and

should “grant substantial deference to the broad

authority that legislatures necessarily possess in

determining the typés and limits for crimes... .”

Solem v. Helm, supra, at 290 (emphasis ours).

That the legislature should be the repository of

the power to set prison terms for crimes is not new or

novel.

“[Hjowever socially desirable the goals

sought to be advanced..., advancing

them through a freewheeling

nonelected judiciary is quite

unacceptable in a democratic society.”

William H. Rehnquist, The Notion of a Living

Constitution, 54 Tex. L. Rev. 693, 699 (1976). That

these ultimate decisions as to people’s freedoms

should be in the hands of the legislature, instead of

the hands of the judiciary, which is the least

democratic branch of the government,*' is a well-

established principle ignored below.

The “Three Strikes” statutes were enacted in

1994 by an overwhelming vote of California’s

legislature and then by more than 71% of the

California electorate on November 8, 1994. People v.

Ingram, 40 Cal.App.4th 1397, 1416, 48 Cal.Rptr.2d

256 (1995). This reflects social values of

Californians. People v. Ayon, 46 Cal.App.4th 385,

400, 53 Cal.Rptr.2d 853 (1996). That “Three Strikes”

3! Myron H. Bright, The Power of the Spoken Word: In

Defense of Oral Argument, 72 lowa L.Rev. 35, 36 (1986); Jesse H.

Choper, Judicial Review and the National Political Process, 4, 5

(1980); John Hart Ely, Democracy and Distrust: A Theory of Judicial

Review, 73-75, 77-78 (1980).

22

was enacted with almost 75% support of the electorate

is evidence that the punishments of “Three Strikes”

are neither cruel nor unusual.*? See Rummel v.

Estelle, supra, at 275-276.

As the dissent perceptively wrote:

“Our deference [to a state’s legislative

authority] should be at its apex. We

have before us the clearest indication

possible that a severe, mandatory

sentence for recidivist offenders is the

express 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.”

Andrade v. Attorney General, supra, at 768 (Sneed, J.,

concurring and dissenting (emphasis ours)).

In passing the Three Strikes laws, California’s

legislature and electorate have determined that a

defendant who commits any new felony (serious or

not) knowing that he faces dire consequences by

virtue of prior convictions of serious felonies is an

intransigent criminal impervious to deterrence. See

People v. Edwards, 97 Cal.App.4th 161, 165-166, 118

Cal.Rptr.2d 256 (2002).

33 The California Court of Appeal observed in 1996,

“it may be inferred from the passage of Proposition 184 that

considerably more than two-thirds of California voters do not

consider it cruel or unusual punishment for a recidivist offender

convicted of a serious felony with prior convictions for violent or

serious felonies to receive a 25-year-or-more-to-life sentence.”

People v. Ayon, 46 Cal.App.4th 385, 400, 53 Cal. Rptr.2d 853

(1996).

23

B. ACCEPTANCE OF £DIFFERENT

PENOLOGICAL THEORIES

The “Eighth Amendment does not mandate

adoption of any one penological theory.” Harmelin,

501 U.S. at 999. California adopted the Determinate

Sentence Law (DSL) and expressly declared that the

purpose of incarceration is punishment** The

“Three Strikes” statutes are an important part of

California’s punitive penological theory. The

uncodified preface of the initiative version stated:

“It is the intent of the People of the

State of California in enacting this

measure to ensure longer prison

sentences and greater punishment

for those who commit a felony and have

been previously convicted of serious

and/or violent felony offenses.”**

The principal penological theory of California's

“Three Strikes” statutes is incapacitation of the

habitual serious/violent felony offender. People v.

Ingram, supra, at 1415.35

33 Cal. Pen. Code §1170(a)(1) [“The Legislature finds

and declares that the purpose of imprisonment for crime is

punishment.”]

ad Similar language is codified in the “Three Strikes”

statute enacted by the Legislature. Cal. Pen. Code §667(b).

3s =——s«*The:)~=C change) «6to)«36a)s penological theory of

incapacitating habitual criminals appears to have worked.

California has enjoyed a 41% drop in its crime rate since it

adopted the “Three Strikes” laws in 1994, while the rest of the

country experienced a decline of only 19%. Federal Bureau of

Investigation, Crime in the United States, Unified Crime Reports

(1993, 1999).

24

C. ACCEPTANCE OF DIVERGENT STATE

VIEWS ON CRIME AND PUNISHMENT

It is “an inevitable and often beneficial result of

a federal structure” that there will be “marked

divergences” in sentences and in the length of prison

terms amorig the states. Harmelin v. Michigan, supra,

at 1000 (Kennedy, J. concurring). The Eighth

Amendment does not compel a state to enact criminal

statutes that mirror those of the other states. Thus,

there will always be some state whose punishments

a - aa are the greatest. Rummel v. Estelle, supra,

at .

Even if the Andrade majority opinion is correct

and California’s “Three Strikes” statutes are the most

severe, Andrade v. Attorney General, supra, at 765,

that fact is in itself meaningless. California is not

mandated to conform its penal statutes to the

“majority rule” or to the least common denominator of

nationwide penalties. “Otherwise, California could

never take the toughest stance against repeat

offenders or any other type of criminal conduct.”

People v. Martinez, 71 Cal.App.4th 1502, 1516, 84

Cal.Rptr.2d 638 (1999).

25

D. EVALUATION BASED ONLY ON

OBJECTIVE FACTORS.

A cruel and unusual punishment determination

should not totter upon the subjective views of the nine

justices who happen to sit on this Court’s bench when

such a claim is presented. Coker v. Georgia, 433 U.S.

584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). The

objective factors which have been identified are the

following: (1) the gravity of the offense; (2) the

harshness and the type of the punishment; (3)

sentences imposed on other criminals in the same

jurisdiction; and (4) sentences imposed for the same

crime in other jurisdictions. Harmelin v. Michigan,

supra, at 1000 (Kennedy, J., concurring); Solem v.

Helm, supra, at 290-292.

Differences in the severity of terms of

imprisonment are extremely difficult for a court to

assess. Indeed, such -measuremenis have been

declared “purely a matter of legislative prerogative.”

Rummel v. Estelle, supra, at 274. In Solem v. Helm,

supra, at 294, the Court expanded upon the same

theme:

“It is clear that a 25-year sentence

generally is more 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.”

This led the concurring justices in Harmelin v.

_Michigan, supra, at 1001, to state:

“(W]e lack clear objective standards to

distinguish between sentences for

26

different terms of years... the relative

lack of objective standards concerning

terms of imprisonment has meant that

“ {ojutside the context of capital

punishment, successful challenges to

the proportionality of particular

sentences [fare] exceedingly rare.’ ”

[citations]”

E. AVOIDANCE OF EXTREME, GROSSLY-

DISPROPORTIONATE SENTENCES.

The Eighth Amendment “forbids only extreme

sentences that are ‘grossly disproportionate’ to the

crime.” Harmelin v. Michigan, supra, at 1001 (Kennedy,

J., concurring). A punishment is not cruel and

unusual unless that punishment is “grossly

disproportionate” or “significantly disproportionate” to

the crime. Rummel v. Estelle, supra, at 281; Solem v.

Helm, supra, at 288, 290, fn.17, 303.

Where distinctions in punishments are “subtle

rather than gross,” Rummel v. Estelle, supra, at 279,

even where the challenged punishment is the “most

stringent found in the 50 States, that severity hardly

would render [a challenged] punishment ‘grossly

disproportionate’ to his offenses or to the punishment

he would have received in the other States.” Rummel

v. Estelle, supra, at 281.

Here, we submit that Respondent’s sentence is

not grossly disproportionate in light of his criminal

background: the felony thefts, burglaries, drug

dealing and addiction more than justify the two 25 to

life terms he received.

27

F. APPLICATION

These principles lead to the conclusion that

Respondent’s sentence does not constitute cruel

and unusual punishment. He is a recidivist of the

first water, who has chosen to deal drugs and commit

thefts to support his heroin habit, after having

suffered multiple convictions of residential burglary, a

crime California defined as “serious” before he chose

to commit them and as a “strike” after he did so.

Having committed se*10us property crimes and serious

drug offenses, it is hardly surprising. that

Respondent’s recidivism has earned him a harsh

sentence.

CONCLUSION

Respondent’s punishment is a manifestation

of California’s penological theory that recidivist

felons should be punished, deterred, and

incapacitated. Where an incorrigible recidivist felon

like Andrade shuns rehabilitation, rejects the lessons

of previous punishment, and fails to be deterred, the

safety and comfort of society demands incapacitation.

The means chosen by California are indeterminate

prison terms, which have high minimum terms and

a maximum of life in prison.

This penological theery is the product of

overwhelming support in the California Legislature

and among the California electorate. The punishment

inflicted upon Respondent is severe, but is not grossly

disparate when compared to punishments imposed

upon other recidivist felons in California and recidivist

felons in other jurisdictions.

28

That other criminals—some bloodthirsty—are

more dangerous than Andrade does nothing for

Andrade. He is a scoundrel, too, a scoundrel who has

had his chances. Andrade meets the threshold; he

has descended below the line. He is a danger to

California and so we have incapacitated him. We

doubt that the framers of the Eighth Amendment or

the states that ratified it would have had any

objection.

In order to generate sympathy, counsel paints a

false picture of our Three Strikes law, and so does the

Court of Appeals. Petty thieves are not rotting in

California dungeons for their petty thievery.

Instead, “Three Strikers” have earned their long

sentences because they are the most thick-skulled

and predictably wicked of felons. They hurt people,

they hurt communities, and they hurt our economy.

What remains but to remove them from us for long

periods of time?

Additionally, our Three Strikes law is not a

merciless machine. Lest the law prematurely

ensnare an offender who is not yet hopelessly

hardened, there are avenues of eseape along the way.

Most of these are controlled by the judiciary, not the

prosecution. Trial courts may reduce “wobbler”

felonies to misdemeanors, thus removing defendants

from the clutches of the Three Strikes scheme. They

may also, in their sound discretion, strike the prior

strike allegations from the charges in the furtherance

of justice and where a defendant falls “outside the

spirit” of the law, thus reducing the strike sentence or

eliminating it altogether. That the California judiciary

took a look at Andrade and determined he had

nothing coming only reinforces our contention that he

deserves his long sentence.

29

Andrade is not the poster child for overturning

California’s just laws, and the Eighth Amendment

does not so require.

Respectfully submitted,

DENNIS L. STOUT

District Attorney

County of San Bernardino

State of California

MARK A. VOS

Deputy District Attorney

LANCE A. CANTOS

Deputy District Attorney

GROVER D. MERRITT*

Lead Deputy District Attorney

*Counsel of Record for Amicus Curiae

CDAA

Appellate Services Unit

412 West Hospitality Lane, 1st Floor

San Bernardino, California 92415-0042

GARY T. YANCEY

District Attorney

Contra Costa County

State of California

L. DOUGLAS PIPES

Senior Deputy District Attorney

Post Office Box 670

Martinez, California 94553

30