Amicus Curiae Brief — Ewing v. California

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PILED

JUL 314 2002

No. 01-6978

In the Supreme Court of the Gnited State

OFFICE of THE CLERK

GARY ALBERT EWING, PETITIONER

Vv.

STATE OF CALIFORNIA

ON WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF CALIFORNIA,

SECOND APPELLATE DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JOHN P. ELWoOoD

Assistant to the Solicitor

General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether petitioner’s sentence under California’s Three

Strikes Law to a term of 25 years to life imprisonment for

grand theft, after previously having been convicted of

numerous offenses including at least two violent and serious

felonies, violates the Eighth Amendment’s prohibition

against cruel and unusual punishments.

TABLE OF CONTENTS

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Argument ....... susesnsnsnanensesumnsensensenanensssesannesspssassapnasensaes

The three strikes sentence in this case does not violate

er IIE cccrennseenseneseemecnesneene

I. Petitioner’s sentence of imprisonment for 25

years to life is not grossly disproportionate to

the crime of grand theft by an habitual offender ....

A. Petitioner’s sentence is within the constitu-

tional limits described by this Court’s Eighth

Amendment decisions ...........s0sssssssesnenenenenrsnens

B. Mandatory penalties set by legislatures are

entitled to particular deference ............00s0000

C. The alleged overbreadth of the Three Strikes

Law does not render petitioner’s sentence

TI ccccnsesnsesseenemecsensennee

II. Comparative analysis of sentences within and

between jurisdictions does not undermine the

conclusion that petitioner’s sentence is

GUIS conensennsseennee

A. Petitioner’s comparison of California penalties

overlooks the distinct penological purposes

served by habitual offender penalties ...............

B. Other States impose comparable penalties

SPOS GE ccsennesnsnssnnsscsersenrssnsssetrensesnmecns

(IIT)

—

TABLE OF AUTHORITIES

Cases:

Anderson, In re, 447 P.2d 117 (Cal. 1968), cert.

denied, 406 U.S. 971 (1972)

Burris v. Superior Court, 119 Cal. Rptr. 2d 221

(Ct. App. 2002)

Coker v. Georgia, 433 U.S. 584 (1977)

Davis v. Municipal Court, 757 P.2d 11 (Cal. 1988) .........

Doble v. Superior Court, 241 P. 852 (Cal. 1925) ...........00««

Enmund v. Florida, 458 U.S. 782 (1982)

Furman v. Georgia, 408 U.S. 238 (1972)

Galloway v. Bankers Trust Co., 420 N.W.2d 437

(lowa 1988)

Gore v. United States, 357 U.S. 386 (1958)

Graham v. West Virginia, 224 U.S. 616 (1912) ...........000

Harmelin v. Michigan, 501 U.S. 957 (1991) ..........0000

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

cert. denied, 531 U.S. 830 (2000)

Hopkinson v. Chicago Transit Auth., 570 N.E.2d

716 (Ill. App. Ct. 1991)

Howington, Ex parte, 622 So.2d 896 (Ala. 1998) ...........000

Jardel Co. v. Hughes, 523 A.2d 518 (Del. 1987) ................

Lynch, In re, 503 P.2d 921 (Cal. 1972)

McCleskey v. Zant, 499 U.S. 467 (1991)

McGruder v. Puckett, 954 F.2d 313 (5th Cir.),

cert. denied, 506 U.S. 849 (1992)

Necochea v. Superior Court, 100 Cal. Rptr. 693

(Ct. App. 1972)

Parke v. Raley, 506 U.S. 20 (1992)

People v. Ayon, 53 Cal. Rptr. 2d 853 (Ct. App. 1996) ......

People v. Bishop, 66 Cal. Rptr. 2d 347 (Ct. App.

1997)

People v. Bowden, 150 Cal. Rptr. 633 (App. Dep't

Super. Ct. 1978)

People v. Cooper, 51 Cal. Rptr. 2d 106 (Ct. App.

1996)

Cases—Continued: Page

People v. Cortez, 86 Cal. Rptr. 2d 234 (Ct. App. 1999) ... 15

People v. Crossdale, 39 P.3d 1115 (Cal. 2002) .................. 23

People v. Cuevas, 107 Cal. Rptr. 2d 529 (Ct. App.

2001) 15

People v. Garcia, 976 P.2d 831 (Cal. 1999) 23

People v. Gauze, 542 P.2d 1365 (Cal. 1975) 17

People v. Haywood, 54 Cal. Rptr. 2d 120 (Ct. App.

1996) 21

People v. Mantanez, 119 Cal. Rptr. 2d 756 (Ct.

App. 2002) 23, 26

People v. Romero, No. E030010, 2002 WL 1481257

(Cal. Ct. App. July 11, 2002) 22

People v. Statum, No. 8097715 (Cal. July 25, 2002) ........ 21

People v. Superior Court (Alvarez), 928 P.2d 1171

(Cal. 1997) -» ~€o

People v. Superior Court (Perez), 45 Cal. Rptr. 2d

107 (Ct. App. 1995) 21

People v. Superior Court (Romero), 917 P.2d 628

(Cal. 1996) 4

People v. Trausch, 42 Cal. Rptr. 2d 836 (Ct. App.

1995) 23

People v. Vessell, 42 Cal. Rptr. 2d 241 (Ct. App.

1995) -_ 23

People v. Williams:

163 P.2d 692 (Cal. 1945) _ 5

948 P.2d 429 (Cal. 1998) 4-5, 23

Robinson v. California, 370 U.S. 660 (1962) 0... 12

Rogers, In re, 66 P.2d 1237 (Cal. Ct. App. 1987) ...........0. 22

Rummel v. Estelle, 445 U.S. 263 (1980) ..........ccccccceceee passim

Sims v. State, 814 P.2d 63 (Nev. 1991) 29

Solem v. Helm, 463 U.S. 277 (1983) passim

State v. Evans, 508 S.E.2d 606 (W. Va. 1998) ................... 29

State v. Heftel, 513 N.W.2d 397 (S.D. 1994) 2.0.2.0... 29

State v. Housden, 399 S.E.2d 882 (W. Va. 1990) .............. 29

Taylor v. United States, 495 U.S. 575 (1990) 00... 17

Cases—Continued:

United States v. Lockhart, 58 F.3d 86 (4th Cir.

1995)

United States v. Meirovitz, 918 F.2d 1376 (8th Cir.

1990), cert. denied, 502 U.S. 829 (1991)

United States v. Organek, 65 F.3d 60 (6th Cir.

1995)

Weems v. United States, 217 U.S. 349 (1910) ...............

Constitution, statutes and rule:

U.S. Const.:

Amend. V (Double Jeopardy Clause)

Amend. VIII

18 U.S.C. 641

18 U.S.C. 355%c)

21 U.S.C. 841(b)

28 U.S.C. 994(h)

Ala. Code:

§ 13A-5-9 (1994 & Supp. 2001)

§ 13A-8-3 (1994)

Cal. Penal Code (West 1999):

§ 17(a)

§ 17(b)

§ 17(b)(1)

§ 17(b)(3)

§ 17(b)(4)

§ 17(b)(5)

$18

§ 19.2

§ 136.1

§ 153

§ 186.10(a)

§ 190 (& Supp. 2002)

§ 193

§ 208(b)

§ 213

§ 215

passim

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Statutes and rule—Continued:

Vil

§ 217.1 (& Supp. 2002)

§ 241.1

§ 245 (& Supp. 2002)

ecesece : 26

§ 451(a)

§ 487

§ 48%b)

Ss.

§ 490

§ 666 (& Supp. 2002)

§ 667(d)(1)

§ 667(e)

POET TEETER EE ETE EERE RENE Ree E EEE RHEE EEE EEE EEEe

§ 667(e)(1)

§ 667(e)(2)(A)

§ 667(f)(2) (Supp. 2002)

§ 667.5 (& Supp. 2002)

§ 1025 (1985 “& Supp. 2002)

§ 1158 (1985)

§ 1170(b) (1985 & Supp. 2002) ...... aladeeiiie

§ 1170.12(b)(1) (Supp. 2002) OR ARE 2,

§ 1170.12(c) (Supp. 2002)

FERRER EERO E EEE eee Eeeeeee

§ 1170.12(¢)(1) (Supp. 2002)

§ 1170.12(c)(2A) (Supp. 2002) .........sssessesseesnesneeseeseeneensenees

§ 11'70.12(4)(2) (Supp. 2002) ..eccccsscnrsnrsnsenessenseneeneennernne

§ 1192.7 (1982 & Supp. 2002) ....ccccccccsovssssnvsessnneesseareesnneees

§ 1208.4 (1982 & Supp. 2002) ....cccccccsccssnsssnseeseneonnneeeenne

§ 1208.4(a) (1982 & Supp. 2002) ...cccccccovsesnoessnvesemnseeneenne

§ 1385 (2000 & Supp. 2002)

Idaho Code (1997):

§ 18-2407(b) (1997 & Supp. 2000) ..ccccccsccssnsssvseneseneeenee

La. Rev. Stat. Ann. (West):

§ 15:529.1 (1992 & Supp. 1999) ............ccceccesssessesneeneesnesesenees

§ 15:529.1 (2002) ..................

Mont. Code Ann. (2001):

SORE E EEE TERRE EEE EEE EEE EEE ESOS EEE EE EEEEE®

CEO R ERE R REET EE EERE EEE EERE E EEE EERE EEE EE EES

enw kr WNNWAASOWAE WNW DH WW

SOO E EERE TEETER EEE EERE EERE EERE EEE EEE EEE EEE EEE EE®

FERRE TERRE EEE EERE EEE EEE REET EEE EEE eee

PPP Perr Pe eee ere eer eee eer es

Vill

Statutes and rule—Continued:

Nev. Rev. Stat. Ann. § 207.010 (Michie 2001) .................

Okla. Stat. Ann. tit. 21, § 51.1 (West 1983 & Supp.

2002)

S.D. Codified Laws (Michie 1998):

§ 22-1-2 (& Supp. 2002)

§ 22-6-1

§ 22-7-7 .. *

§ 22-7-8

Vt. Stat. Ann. tit. 13, § 11 (1998)

W. Va. Code (2000):

§ 61-3-13

§ 61-11-18(c)

United States Sentencing Guidelines § ABL.L secscesum

Miscellaneous:

M. Antrobus, Bill Reduces Prison Terms: Louisiana

Hopes to Save Millions, Dallas Morning News,

June 9, 2001 ......ccecveeee sonsqusnseussapsuutussotensvensneesnenenecesece

J. A. Ardaiz, California's Three Strikes Law: History,

Expectations, Consequences, 32 McGeorge L. Rev. 1

Initiative Statute Voter Pamphlet, Analysis by

the Legislative Analyst, General Election (Nov. 8,

ED conseseasstntenanpnienndiceigapeinennintainmisaiaemeguetes

Ways and Means Comm. Analysis, 1993-1994 Reg.

Sess., AB 971 (Cal. Jan. 13, 1994) .........csvssssvessseesneesnneeens

1 B.E. Witkin & N. Epstein, California Criminal

BO G0CR GREED cee

-88 BRBBRBB B&B BSE

In the Supreme Court of the Anited States

No. 01-6978

GARY ALBERT EWING, PETITIONER

Vv.

STATE OF CALIFORNIA

ON WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF CALIFORNIA,

SECOND APPELLATE DISTRICT

BRIFF FOR THE UNITED STATES

AS AMICUS UCURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a sentence of 25

years to life imprisonment under a state three-strikes law

for a conviction for grand theft violates the Eighth Amend-

ment’s prohibition against cruel and unusual punishments.

A number of federal criminal statutes impose lengthy terms

of imprisonment, including imprisonment for life, for recidi-

vist offenses. See, eg., 18 U.S.C. 3559(c) (providing for

mandatory sentence of life without parole for the commission

of a “serious violent felony” after separate convictions for

two or more “serious violent felonies,” or for one or more

“serious violent felonies” and one or more “serious drug of-

fenses”); 21 U.S.C. 841(b) (prescribing sentence of manda-

tory life without parole for drug trafficking offenses if

defendant has two prior felony drug convictions); 28 U.S.C.

994(h) (requiring the Sentencing Commission to provide for

a sentence at or near the statutory maximum if the defen-

dant is convicted of a felony that is a crime of violence or

drug trafficking offense and has prior convictions for two or

more such felonies); Sentencing Guidelines § 4B1.1 (career

offender sentencing guideline). The United States has a

(1)

substantial interest in the constitutionality of lengthy

sentences imposed for recidivism.

STATEMENT

1. California’s Three Strikes Law was enacted in nearly

identical form both by the California legislature (Cal. Penal

Code § 667(e) (West 1999)) and by ballot initiative (id.

§ 1170.12(c) (Supp. 2002)) with the support of nearly 72% of

the popular vote. In enacting the law, the legislature

“acknowledged the will of Californians that the goals of

retribution, deterrence, and incapacitation be given pre-

cedence in determining the appropriate punishment for

crimes,” and that “those goals [are] best achieved by en-

suring ‘longer prison sentences and greater punishment’ for

second and third ‘strikers.’"” People v. Cooper, 51 Cal. Rptr.

2d 106, 111 (Ct. App. 1996). The purpose of the law is “to

deter offenders * * * who repeatedly commit * * *

crimes and to segregate them from the rest of society.”

People v. Ayon, 53 Cal. Rptr. 2d 853, 862 (Ct. App. 1996).

Under the statute, when a defendant with one prior

conviction for a “serious” or “violent” felony (a “strike”) is"

convicted of any felony, he must be sentenced to a term of

imprisonment twice as long as he otherwise would have

received. See Cal. Penal Code § 667(d)(1) and (e)(1) (West

1999); id. § 1170.12(b)(1) and (c)(1) (Supp. 2002). When a

defendant with two prior “strikes” is convicted of any felony,

he ordinarily must receive an indeterminate prison term of

25 years to life—that is, he becomes eligible for parole after

25 years.’ See id. § 667(d)(1) and (e)(2)(A) (1999); id.

! The statute provides that:

the term for the current felony conviction shall be an indeterminate

term of life imprisonment with a minimum term of the indeterminate

sentence calculated as the greater of

(i) three times the term otherwise provided as punishment for each

current felony conviction subsequent to the two or more prior felony

convictions, or

§ 1170.12(b)(1) and (c)(2)(A) (Supp. 2002). “Serious” and

“violent” felonies are specified by statute, and typically are

grave offenses that involve violence or the threat or serious

risk of violence. See id. § 667.5 (1999 & Supp. 2002) (defining

“violent felonies”); id. § 1192.7 (1982 & Supp. 2002) (defining

“serious felonies”). The “triggering” offense, though it must

be a felony, need be neither “serious” nor “violent.” Prior

offenses must be alleged in the charging document, and the

defendant has a right to a jury trial on whether the prior

strikes have been proved beyond a reasonable doubt. /d.

§ 1025 (1985 & Supp. 2002); id. § 1158 (1985).

Under California law, certain offenses may be either mis-

demeanors or felonies. There are two basic types of felony-

misdemeanor (or “wobbler”) offenses. Some crimes that

would otherwise be misdemeanors become “wobblers” be-

cause of the defendant’s prior criminal record. See, e.g., Cal.

Penal Code § 490 (West 1999); id. § 666 (1999 & Supp. 2002)

(petty theft, a misdemeanor, becomes a felony-misdemeanor

where the defendant has previously served a term of

imprisonment for specified theft-related crimes). Others,

such as grand theft, are felony-misdemeanors regardless of

the defendant's prior record. See id. § 489%b) (1999). Both

types of “wobblers” qualify as triggering offenses under the

Three Strikes Law when they are felonies.”

(ii) twenty-five years or

(iii) the term determined by the court pursuant to Section 1170 for the

underlying conviction, including any enhancement applicable under

Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or

any period prescribed by Section 190 or 3046.

Cal. Penal Code § 667(e2)A) (West 1999); sd. § 1170.12(c¢)(2 A) (Supp.

2002).

2 California law defines non-capital felonies by the place the sentence

will be served, rather than by the length of incarceration: “A felony is a

crime which is punishable with death or by imprisonment in the state

prison.” Cal. Penal Code § 17(a) (West 1999). Misdemeanors are punished

“by fine or imprisonment in the county jail.” /d. § 17(b). By statute,

Trial courts have “broad discretion” (People v. Superior

Court (Alvarez), 928 P.2d 1171, 1176 (Cal. 1997)) to reduce a

“wobbler” charged as a felony to a misdemeanor before

preliminary examination (Cal. Penal Code § 17(b)(5) (West

1999)) or at sentencing (id. § 17(b\(1)) and may thereby avoid

imposition of a Three Strikes sentence. In exercising that

discretion, “the court should examine the nature and cir-

cumstances of the offense, the defendant’s appreciation of

and attitude toward the offense, or his traits of character as

evidenced by his behavior” as well as other “general objec-

tives of sentencing,” Alvarez, 928 P.2d at 1177-1178, and it

should not act solely because of “an aversion to [the Three

Strikes] statutory scheme.” /d. at 1178 (internal quotation

marks omitted). Appellate courts review decisions to reduce

a wobbler to a misdemeanor under an “extremely deferential

and restrained standard.” /d. at 1179.

California law also gives trial courts “broad” authority, on

motion of the prosecution or sua sponte, to strike prior of-

fense allegations “in furtherance of justice.” People v.

Superior Court (Romero), 917 P.2d 628, 647-648 (Cal. 1996).

See generally Cal. Penal Code § 667(f)(2) (West 1999); id.

§ 1170.12(d\2) (Supp. 2002); id. § 1385 (2000 & Supp. 2002).

By reducing wobblers predicated on prior offenses to misde-

meanors (which do not qualify as triggering offenses), or by

striking prior serious or violent felonies, courts may avoid

imposing a Third Strike sentence. In doing so, courts must

determine that, “in light of the nature and circumstances of

{the defendant's] present felonies and prior serious and/or

violent felony convictions, and the particulars of his back-

ground, character, and prospects, the defendant may be

deemed outside the (Three Strikes sentencing] scheme’s

spirit, in whole or in part.” People v. Williams, 948 P.2d 429,

felonies are punishable by a year or more of imprisonment, and misde-

meanors by a year or less. See id. §§ 18, 19.2.

437 (Cal. 1998). Decisions to strike are given “deferential”

review on appeal. /d. at 438.

Although wobblers can be either felonies or misde-

meanors, they are presumptively felonies and are “regarded

as a felony for every purpose” (1 B.E. Witkin & N. Epstein,

California Criminal Law § 73, at 119 (3d ed. 2000)), and

“remain{] a felony except when the [court’s] discretion is

actually exercised” to make the crime a misdemeanor.

People v. Williams, 163 P.2d 692, 696 (Cal. 1945) (internal

quotation marks omitted).

2. On March 12, 2000, petitioner walked out of a shop in

E] Segundo, California, with three golf clubs concealed in his

trouser leg. He did not pay for the clubs, which were priced

at $399 each. An employee of the shop observed the theft

and contacted the police, who arrested petitioner in the

parking lot.

Petitioner has a lengthy criminal record dating back to

1984. His prior convictions are as follows:

11-12-1984 (Ohio) grand 3 years’ probation, jail

theft suspended, $300 fine

9-9-1988 grand theft 3 years’ probation, 1 year

auto’ in county jail

2-25-1990 petty theft with 3 years’ probation, 60 days

a prior in county jail

7-10-1992 battery 2 years’ summary proba-

tion, 30 days in county jail

8-13-1992 theft 12 months’ probation, 10

days in county jail

% Ewing was convicted of felony grand theft auto, but after he com-

pleted probation, the sentencing judge reduced the crime to a misde-

meanor. See Cal. Penal Code § 17(b)(3) (West 1999). Acting pursuant to

Penal Code § 1203.4 (1982 & Supp. 2002), the judge then allowed petitioner

to withdraw his guilty plea and dismissed the case. Under Section

1203.4(a), that case is still considered a conviction for purposes of prior-

conviction allegations in later prosecutions.

€

1-9-1993 burglary 1 year’s summary proba-

tion, 60 days in county jail

2-24-1993 possession of 3 years’ probation, 6

drug parapher- months in county jail

nalia

7-29-1993 appropriation 2 years’ summary pro-

of lost property bation, 10 days in county

jail

9-10-1993 possession of a_ 1 year’s probation, 30 days

firearm; tres- in county jail

passing

12-9-1993 robbery and 3 9 years & 8 months in

counts of bur- state prison

glary

The record before the trial court indicated that the

robbery and three burglaries that gave rise to petitioner's

most recent prior convictions were committed at a Long

Beach apartment complex over a five-week period. During

the robbery/burglary, petitioner approached an individual at

the complex and, claiming he had a gun, told the victim to

turn over his wallet. When the victim resisted, petitioner

pulled a knife and forced the victim to take petitioner to his

apartment, which he then burgled. The other two burglaries

involved petitioner’s surreptitious entry into other apart-

ments in the complex, one of which was occupied at the time

of his crime. During the burglaries, petitioner stole cash,

jewelry, electronic equipment, a firearm, a stun gun, and a

passport. When petitioner was arrested in a common area of

the complex 11 days after the robbery, he was carrying the

knife used during that crime. See Br. of California at 2-4,

People v. Ewing, No. B083830 (Cal. Ct. App. 1994).

3. Based on petitioner’s theft of the golf clubs, the Dis-

trict Attorney for the County of Los Angeles filed an

information charging him with one count of grand theft* and

one count of burglary. The information alleged that peti-

tioner had incurred four prior “strikes” within the meaning

of the three strikes law, consisting of petitioner's December

1993 robbery and burglary convictions.

After a jury trial, petitioner was convicted of grand theft

and acquitted of burglary. Because petitioner had waived

his right to a jury determination on prior offenses, the trial

court acted as finder of fact and found the prior conviction

allegations true. The court denied petitioner’s motions to

reduce the grand theft charge to a misdemeanor and to

strike two of the prior felony convictions alleged in the infor-

mation, concluding that petitioner’s record of “consistent

criminal activity” brought him within “the intent of the three

strikes law.” J.A. 14. The court did, however, strike the

prior offense for purposes of a separate sentence enhance-

ment for prior prison terms. J.A. 14-15. See generally Cal.

Penal Code § 667.5 (West 1999 & Supp. 2002). Petitioner

was sentenced to a term of imprisonment for 25 years to life.

4. The Court of Appeal of California affirmed. Pet. App.

23-31. The court rejected petitioner’s claim that the trial

court erred in declining to reduce his grand theft conviction

to a misdemeanor, noting that, while the current offense was

not violent, petitioner “had been convicted of nine offenses

* * * in a five-year period from 1988 through 1993 and

committed the current theft while on parole less than a year

after being released from prison.” Jd. at 26-27. The court

also rejected petitioner's claim that the trial court erred by

refusing to strike one or more of his prior violent or serious

convictions, noting the fact that “[t]wo of his prior strike

convictions were violent and involved the use of a weapon,”

* California law defines grand theft as the theft of money or property

with a value exceeding $400. Cal. Penal Code § 487 (West 1999). The

penalty for the felony offense is presumptively two years, unless there are

circumstances in mitigation (in which case the sentence is 16 months) or

aggravation (three years). See id. § 1170(b) (1985 & Supp. 2002).

the “bleak{ness]" of his “rehabilitative prospects,” and the

fact that defendant had continued to reoffend even though

he had been on parole or probation continuously since 1988.

In light of those factors, the court concluded that petitioner

“was within the spirit of the Three Strikes law.” /d. at 28.

The court also rejected petitioner’s claim that his sentence -

was grossly disproportionate under the Eighth Amendment.

The court observed that in Rummel v. Estelle, 445 U.S. 263

(1980), this Court upheld a mandatory life sentence under a

Texas recidivist statute for a defendant convicted of ob-

taining $120.75 by false pretenses, where the defendant had

two prior felony convictions for “nonviolent petty thefts.”

Pet. App. 29. The court noted that Rummel made clear that

enhanced sentences under recidivist statutes serve the “le-

gitimate goal” of deterring and segregating repeat offenders.

Ibid. The California Supreme Court denied petitioner’s

petition for review.

SUMMARY OF ARGUMENT

To effectuate the settled principle that Eighth Amend-

ment judgments should be based on objective factors, courts

should be especially reluctant to hold unconstitutional legis-

latively mandated sentences for felonies that fall short of two

types of punishment this Court has held are different in kind

from all others: the death penalty and life imprisonment

without parole. This Court’s decisions reflect a recognition

that, aside from the death penalty and other punishments

different in kind from fine or imprisonment, there is little

objective basis for distinguishing between sentences of

different lengths.

I. Petitioner’s sentence of imprisonment for 25 years to

life for grand theft under California’s Three Strikes Law

does not violate this Court’s narrow principle prohibiting

grossly disproportionate sentences. Petitioner’s enhanced

penalty reflects the State’s legitimate interest in imposing

more severe penalties on persons whose record of convic-

tions demonstrates an inability to comply with the law. That

interest is particularly compelling because of petitioner's

record of violent crime. Petitioner's triggering offense of

grand theft and his past convictions for armed robbery and

residential burglary are more serious, and the penalty

imposed not materially more severe, than was the case in

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

upheld against an Eighth Amendment challenge a com-

parable life sentence imposed under a recidivist statute on a

defendant convicted of obtaining $120.75 by false pretenses.

And petitioner's triggering offense and prior crimes are

more serious than in Solem v. Helm, 463 U.S. 277 (1983),

where the Court invalidated a life sentence that, unlike the

one here, afforded no possibility of parole.

The principle that courts should give substantial defer-

ence to legislatures to specify the classification and punish-

ment of crimes applies with particular force where, as here,

the legislature—rather than an individual judge—has itself

determined the specific punishment for an offense. Although

California law allows judges to sentence grand theft as a

misdemeanor in the interests of rehabilitating deserving

defendants, California courts have consistently held that the

availability of that option does not detract from the crime’s

status as a presumptive felony and a serious offense. That

the Three Strikes Law could conceivably be applied in an

unduly broad manner to defendants with insignificant crimi-

nal records is not relevant in assessing the proportionality of

its application here, in light of petitioner’s long and con-

tinuous record of criminal offenses, including crimes of

violence. In addition, California courts have broad discretion

to avoid disproportionally harsh applications of the law.

II. No comparative analysis of sentences prescribed for

other crimes in California and for the same c.ime in other

jurisdictions is necessary because petitioner's case does not

warrant an initial judgment that his sentence is grossly

disproportionate to the crime. But in any event, compara-

tive analysis does not undermine the conclusion that peti-

tioner’s sentence is constitutional. Petitioner’s comparison

of his sentence to crimes he characterizes as “more serious”

is based on the erroneous premise that penal codes must

assign central importance to retribution. The Eighth

Amendment permits California’s decision to impose rela-

tively lighter penalties on first offenders to promote rehabili-

tation, while imposing heavier penalties on habitual offend-

ers, where interests in deterrence and incapacitation out-

weigh rehabilitation. Nor does interjurisdictional compari-

son support the suggestion that petitioner’s punishment is

grossly disproportionate to his offense. At least eight States

authorize life sentences for habitual offenders convicted of

theft, and several States have imposed such sentences on

habitual offenders with criminal records comparable to

petitioner's.

ARGUMENT

THE THREE STRIKES SENTENCE IN THIS CASE

DOES NOT VIOLATE THE EIGHTH AMENDMENT

This Court has often observed that “Eighth Amendment

judgments should not be, or appear to be, merely the

subjective views of individual Justices; judgment should be

informed by objective factors to the maximum possible

extent.” Rummel v. Estelle, 445 U.S. 263, 274-275 (1980)

(quoting Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality

opinion)); accord Solem v. Helm, 463 U.S. 277, 290 (1983)

(“courts should be guided by objective factors” in conducting

proportionality review). “The most prominent objective

factor” guiding the Court in assessing disproportionality

claims “is the type of punishment imposed.” Harmelin v.

Michigan, 501 U.S. 957, 1000 (1991) (Kennedy, J., concurring

in part and concurring in the judgment).

This Court's disproportionality decisions reflect a judg-

ment that courts are better equipped to distinguish between

types of punishment than degrees of punishment. This

Court has “draw(n) a ‘bright line’ between the punishment of

death and * * * punishments short of that ultimate

sanction” in holding that capital punishment is disproportion-

ate to the crime of raping an adult woman. Rummel, 445

U.S. at 275 (citing Coker). In Weems v. United States, 217

U.S. 349 (1910), the Court “could differentiate in an objective

fashion between the highly unusual cadena temporal and

more traditional forms of imprisonment imposed under the

Anglo-Saxon system.” Rummel, 445 U.S. at 275. The Court

has also distinguished sentences of life imprisonment im-

posed for recidivist property crimes when the defendant was

eligible for parole from life sentences when he was not. See

Solem, 463 U.S. at 297 (distinguishing Rummel). But once

the barrier of parole eligibility is passed, the Court's deci-

sions reflect a “relative lack of objective standards con-

cerning terms of imprisonment,” Harmelin, 501 U.S. at 1001

(Kennedy, J., concurring in part and concurring in the judg-

ment); see Solem, 463 U.S. at 295; Rummel, 445 U.S. at 275.

In light of the lack of clear objective standards in this

area, it is especially difficult to hold unconstitutional legis-

latively mandated felony sentences that fall short of two

types of punishment that this Court has noted are different

in kind from all others: the death penalty and—to a far lesser

extent—life imprisonment without parole. See Rummel, 445

U.S. at 272 (“The penalty of death differs from all other

forms of criminal punishment, not in degree but in kind.

* * * It is unique in its rejection of rehabilitation.”) (quoting

Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J.,

concurring)); Solem, 463 U.S. at 297 (noting that “[ojnly

capital punishment” is more severe than life imprisonment

without parole); Harmelin, 501 U.S. at 1028 (Stevens, J.,

dissenting) (likening sentence of life without parole to death

penalty because “(t}he offender will never regain his free-

dom,” and accordingly “the sentence must rest on a rational

determination that the punished ‘criminal conduct is so atro-

cious that society’s interest in deterrence and retribution

wholly outweighs any considerations of reform or rehabilita-

tion of the perpetrator’”) (quoting Furman, 408 U.S. at 307

(Stewart, J., concurring)). Proportionality challenges to

felony sentences short of life imprisonment without parole

should be successful only under the most exceptional circum-

stances. See, ¢e.g., Robinson v. California, 370 U.S. 660, 667

(1962) (“Even one day in prison would be a cruel and unusual

punishment for the ‘crime’ of having a common cold.”);

Rummel, 445 U.S. at 274 n.11 (suggesting proportionality

principle might be implicated “if a legislature made overtime

parking a felony punishable by life imprisonment”). As the

Court noted in Rummel, “{o)nce the death penalty and other

punishments different in kind from fine or imprisonment

have been put to one side, there remains little in the way of

objective standards for judging whether or not a life sen-

tence imposed under a recidivist statute for several separate

felony convictions not involving ‘violence’ violates the cruel-

and-unusual punishment prohibition of the Eighth Amend-

ment.” 445 U.S. at 283 n.27.° That principle is applicable

° Indeed, the Fourth and Sixth Circuits have held that proportionality

review is limited to cases involving sentences of death or life without

parole, and other courts of appeals have suggested that result. See United

States ¢. Cgunek, 65 F 3d 60, 63 (6th Cir. 1995) (“This Court will not

engage in a proportionality analysis except in cases where the penalty

imposed is death or life in prison without possibility of parole.”) (internal

quotation marks omitted); United States v. Lockhart, 58 F 3d 86, 89 (4th

Cir. 1995); see also United States v. Meirovitz, 918 F 2d 1376, 1381 (8th

Cir. 1990) (“because Meirovitz was sentenced to life without parole, we

will engage in the rare review of the constitutionality of a district court

sentence”), cert. denied, 502 U.S. 829 (1991). But see Hawkins v. Hargett,

200 F.3d 1279, 1284 (10th Cir. 1999) (“While we recognize that the

availability of parole is a relevant consideration, we are not willing to

make it dispositive.”), cert. denied, 531 U.S. 830 (2000). While that position

is in tension with statements in some of this Court's opinions that “no

penalty is per se constitutional,” Solem, 463 U.S. at 290; Robinson, 370

U.S. at 667, it reflects an appreciation of the profound difficulty of drawing

“any constitutional distinction between one term of years and a shorter or

longer term of years.” Rummel, 445 U.S. at 275.

here, where petitioner’s sentence, though serious, affords

him the opportunity for parole after 25 years. ~

I. PETITIONER'S SENTENCE OF IMPRISONMENT

FOR 25 YEARS TO LIFE IS NOT GROSSLY

DISPROPORTIONATE TO THE CRIME OF GRAND

THEFT BY AN HABITUAL OFFENDER

This Court’s decisions make clear that “[t}he Eighth

Amendment does not require strict proportionality between

crime and sentence.” Harmelin, 501 U.S. at 1001 (Kennedy,

J., concurring in part and concurring in the judgment).

Rather, the “narrow proportionality principle” (id. at 996)

recognized in this Court’s Eighth Amendment jurisprudence

forbids only sentences that are “grossly disproportionate” to

the crime. Solem, 463 U.S. at 288, 303; Rummel, 445 U.S. at

271; Weems, 217 U.S. at 371. Petitioner claims that his

sentence of imprisonment for 25 years to life for “shoplifting

three golf clubs” (Pet. Br. 24) presents an “extreme

circumstance” (Harmelin, 501 U.S. at 1006-1007 (Kennedy,

J., concurring in part and concurring in the judgment)) that

warrants invalidating a penalty specifically prescribed both

by the California legislature and an overwhelming majority

of California voters. Petitioner's sentence, evaluated in light

of his criminal record, is within constitutionaily permissible

limits.

A. Petitioner's Sentence Is Within The Constitutional

Limits Described By This Court's Eighth Amendment

Decisions

1. Petitioner's claim that his sentence of imprisonment

for 25 years to life is unconstitutionally disproportionate for

the offense of “shoplifting three golf clubs” (see, e.g., Pet. Br.

i, 2, 15, 23, 24, 27; Brief of Amicus Families Against Man-

datory Minimums (FAMM Br.) 2, 6) incorrectly frames the

issue. Petitioner did not receive that sentence simply

because he was convicted of grand theft. Rather, petitioner

was sentenced under the Three Strikes Law because he was

convicted of grand theft after previously having been con-

victed of at least two “violent” or “serious” felonies. Peti-

tioner’s mandatory penalty is “based not merely on [his]

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,

445 U.S. at 284; accord Solem, 463 U.S. at 296. As this Court

has recognized, the interest of a State in enacting a recidivist-

enhancement statute is not merely that of punishing the

offense of conviction; “it is in addition the interest * * * in

dealing in a harsher manner with those who by repeated

criminal acts have shown that they are simply incapable of

conforming to the norms of society as established by its

criminal law.” 445 U.S. at 276; accord Solem, 463 U.S. at 296.

There is no merit to the suggestion (Pet. Br. 11; FAMM

Br. 6, 8) that the Double Jeopardy Clause prohibits imposing

an enhanced sentence on a person convicted of a nonviolent

offense who has prior convictions for crimes of violence. A

State has a valid interest in imposing more severe punish-

ment on a recidivist who has previously been convicted of

violent crimes even if his triggering offense does not involve

violence, in recognition of the fact that he presents a greater

danger to society than persons convicted of the same

triggering offense with no history of violence. That is the

same basic rationale that has traditionally supported

habitual-offender sentencing, which has never been thought

to raise double-jeopardy concerns. Parke v. Raley, 506 U.S.

20, 27 (1992) (collecting authorities). Although, as petitioner

observes (Pet. Br. 11), the focus of disproportionality analy-

sis is the triggering offense, the Court explicitly has

“recognize(d) * * * that [a defendant's] prior convictions

are relevant” to determining the proportionality of a sen-

tence. Solem, 463 U.S. at 296 n.21. Indeed, Solem indicates

that the presence or absence of violent prior crimes is a

factor in determining the appropriateness of lengthy im-

prisonment. /d. at 297 & n.22; id. at 299 n.26.

2. This Court’s resolution of past disproportionality

claims indicates that petitioner’s sentence is constitutional.

In Rummel v. Estelle, supra, the Court upheld against an

Eighth Amendment challenge a mandatory sentence of life

imprisonment (with possibility of parole) imposed under a

recidivist statute on a defendant convicted of obtaining

$120.75 by false pretenses, who had prior convictions for

fraudulently using a credit card to obtain $80 worth of goods

and services and for passing a forged check in the amount of

$28.36. Petitioner’s prior crimes and triggering offense

are more serious than the conduct at issue in Rummel.

Petitioner's current offense, involving the theft of almost

$1200 in merchandise, is more serious than Rummel’s in both

actual and inflation-adjusted dollars. Petitioner’s prior

serious or violent offenses, which include armed robbery and

three residential burglaries (two with the victim present),

indisputably are more serious than Rummel’s nonviolent

fraud and bad-check charges. See generally McGruder v.

Puckett, 954 F.2d 313, 317 (5th Cir.) (armed robbery

“certainly endangers life, limb, and property as much as any

non-capital offense”), cert. denied, 506 U.S. 849 (1992). In

addition, petitioner has been convicted on nine other

occasions of numerous misdemeanor and felony offenses

(some involving violence), served nine separate terms of

incarceration, and committed the vast majority of his crimes

—including the triggering grand theft offense—while on

probation or parole.°

® Because a defendant's entire criminal record (not just his qualifying

“strikes”) is relevant to his ability to “conform|) to the norms of society”

(Rummel, 445 U.S. at 276), it may properly be considered in conducting

proportionality review of recidivist sentences. Cf. Solem, 463 U S. at 279-

280, 296-297, 299 (considering Helm’s six prior convictions, although the

recidivist statute at issue required only three for eligibility), The Califor-

nia courts routinely consider prior convictions not alleged as “strikes” in

resolving proportionality challenges under the federal and state consti-

tutions. See, ¢.g., People v. Cuevas, 107 Cal. Rptr. 2d 529, 540 (Ct. App.

2001); People v. Cortez, 86 Cal. Rptr. 2d 234, 240-241 (Ct. App. 1999).

As the court of appeals correctly concluded (Pet. App. 29),

“by analogy” to Rummel, petitioner’s sentence did not vio-

late the Eighth Amendment. Petitioner’s long criminal

history, his demonstrated willingness to engage in violence,

and his prompt return to crime after his release from prison,

reflect an inability to conform his behavior to law despite

having “been both graphically informed of the consequences

of lawlessness and given an opportunity to reform.”

Rummel, 445 U.S. at 278. When a person has shown through

a long history of criminal behavior an inability to abide by

law, the Constitution does not require a State to protect

itself by imprisoning him “on the installment plan” for a

succession of relatively short sentences. Rather, the State is

“entitled to place upon [the defendant] the onus of one who is

simply unable to bring his conduct within the social norms

prescribed by the criminal law of the State” (id. at 284), and

to “segregate [him] from the rest of society for an extended

period of time” until he has shown himself ready to rejoin it.

Ibid. Cf. Graham vy. West Virginia, 224 U.S. 616 (1912)

(upholding against Eighth Amendment challenge life

sentence for third conviction for horse theft).

Contrary to the claims of petitioner and his amicus (Pet.

Br. 28; FAMM Br. 19), Rummel is not dist nguishable on the

grounds that the defendant in that case was eligible for

parole in 12 years instead of 25, or because of the specific

parole policies employed by Texas or California. Rummel

did not turn on the specific length of time before parole

eligibility, but on the simple fact that the crime was parole

eligible. The Court observed that the mere “possibility of

parole, however slim, serves to distinguish [a parole-eligible

defendant] from a person sentenced under a recidivist

statute * * * which provides for a sentence of life without

parole.” 445 U.S. at 281. In any event, differences between

parole eligibility dates of this magnitude are not constitu-

tionally significant. As the Court noted in Solem, “(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.” 463 U.S. at 294; Rummel, 445

U.S. at 275 (noting difficulty of drawing “any constitutional

distinction between” sentences for terms of years).

Solem v. Helm, supra, provides no support for holding

petitioner’s sentence unconstitutionally disproportionate;

rather, the differences between the two cases underscore the

proportionality of petitioner’s sentence. There, Helm was

sentenced to life imprisonment without possibility of parole

under a South Dakota recidivist statute for uttering a “no

account” check for $100. His prior convictions included three

burglaries, obtaining money under false pretenses, and

graad larceny. In finding the sentence unconstitutional, the

Court stressed that Helm’s “relatively minor” crimes “in-

volved neither violence nor threat of violence to any person”

(463 U.S. at 296-297), and observed that uttering a “no

account” check was “one of the most passive felonies a per-

son could commit.”’ Jd. at 296. This case differs significantly

from Solem in both the severity of the sentence and the

gravity of the offense. The Solem Court twice noted the lack

of parole availability in distinguishing Rummel (id. at 297,

303 n.32), emphasizing that life imprisonment without parole

is “far more severe than [a] life sentence” with possibility of

parole. Jd. at 297. In contrast to the “passive” triggering

offense in Solem (id. at 296), petitioner’s triggering offense

presented a risk of violent confrontation because it was

7 While Helm’s prior convictions included three burglaries, since

deciding Solem, this Court has recognized that burglary presents an

“inherent potential for harm to persons” by “creat{ing] the possibility of a

violent confrontation between the offender and an occupant, caretaker, or

some other person who comes to investigate.” Taylor v. United States,

495 U.S. 575, 588 (1990). California law has long recognized “the dangers

to personal safety created by” burglary. People v. Gauze, 542 P.2d 1365,

1368 (Cal. 1975). Petitioner's theft of a gun from an occupied apartment

(Br. of California at 2, People v. Ewing, supra) starkly presents the msk of

violence inherent in burglary.

comniftted in the presence of the victim.” Petitioner's prior

criminal record is both longer than Helm’s and involves

graver offenses, including crimes of violence. Cf. id. at 297

n.22

B. Mandatory Penalties Set By Legislatures Are Entitled

To Particular Deference

Solem is distinguishable from this case in another critical

respect. The sentence of life imprisonment at issue in that

case was not mandatory, but rather represented a statutory

maximum term that had been imposed at the discretion of

the sentencing judge. Thus, the Court emphasized, its deter-

mination that the sentence was disproportional did “not

question the legisiature’s judgment” about the appropriate-

ness of the penalty. Solem, 463 U.S. at 299 n.26. Compare

Rummel, 445 U.S. at 266 (involving mandatory sentence).

Here, by contrast, both California’s legislature and an over-

whelming majority of its voters have made a judgment that

persons who commit any felony who have two previous

convictions for serious or violent felonies should receive a

sentence of 25 years to life. Under such circumstances, “[t]Jo

set aside petitioners mandatory sentence would require

rejection not of the judgment of a single jurist, as in Solem,

but rather the collective wisdom of the (California) Legis-

lature and * * * the (California) citizenry.” Harmelin, 501

* Petitioner and his amicus err in suggesting that his “property crime”

did not “create the risk of * * * bodily injury to any person.” Pet. Br. 24;

FAMM Br. 10, 11.8. As with burglary, theft poses a risk of confrontation

and injury during commission of the offense or attempt to escape. Many

courts have observed that “[sjo-called ‘property crimes,’ such as shop-

lifting, may turn violent if a chase ensues.” Galloway v. Bankers Trust

Co., 420 N.W.2d 437, 439 (lowa 1988) (quoting Jardel Co. v. Hughes, 523

A.2d 518, 525 (Del. 1987)); accord Hopkinson v. Chicago Transit Auth.,

570 N.E.2d 716, 729 (Ill. App. Ct. 1991).

® It is clear that voters were made aware that persons who had

committed nonviolent felonies would be subject to the enhanced sentence.

See, e.g., Prop. 184 Increased Sentences Repeat Offenders Initiative Sta-

tute Voter Pamphlet, Analysis by the Legislative Analyst, General

U.S. at 1006 (Kennedy, J., concurring in part and concurring

in the judgment).

Invalidating petitioner’s sentence therefore would repre-

sent a stark challenge to “[{t]he first of th{e) principles” that

“give content to the uses and limits of proportionality

review,” Harmelin, 501 U.S. at 998 (Kennedy, J., concurring

in part and concurring in the judgment), the principle “that

the fixing of prison terms for specific crimes involves a

substantive penological judgment that, as a genera! matter,

is ‘properly within the province of legislatures, not courts.”

Ibid. (quoting Rummel, 445 U.S. at 275-276). This Court has

emphasized the respect due to legislatures in classifying

criminal behavior and determining to what extent the goals

of retribution, deterrence, incapacitation, and rehabilitation

ought to be served in meting out punishments. See Gore v

United States, 357 U.S. 386, 393 (1958) (“Whatever views

may be entertained regarding severity of punishment,

whether one believes in its efficacy or its futility, * * *

these are peculiarly questions of legislative policy.”); accord

Solem, 463 U.S. at 290; Rummel, 445 U.S. at 274.

Accordingly, this Court “ha{s] never invalidated a penalty

mandated by a legislature based only on the length of

sentence, and * * * should do so only in the most extreme

circumstance.” Harmelin, 501 U.S. at 1006-1007 (Kennedy,

J., concurring in part and concurring in the judgment).

C. The Alleged Overbreadth Of The Three Strikes Law

Does Not Render Petitioner's Sentence Uncon-

stitutional]

Petitioner and his amicus argue that certain features of

the California Three Strikes Law render its application un-

Election (Nov. 8, 1994), at 33 (noting the mandatory sentence would apply

“for any new felony conviction (not just * * * serious or violent

felon(ies}"); id. at 36 (Rebuttal to Argument in Favor of Proposition 184)

(“PROPOSITION 184 LUMPS IN NONVIOLENT OFFENDERS

WITH VIOLENT CRIMINALS”).

constitutional. First, they argue that grand theft’s classifica-

tion as a felony-misdemeanor or “wobbler” reflects a legis-

lative “judgment that * * * [it] is among the least serious

crimes] in the state” (Pet. Br. 25; see FAMM Br. 10), and

insufficiently serious to authorize a three-strikes penalty of

imprisonment for 25 years to life. Second, they argue that

the Three Strikes sentencing scheme is unduly expansive, in

that a defendant needs not have served a prior term of

imprisonment; prior convictions need not be violent so long

as they are “serious”; and there is no “washout” period for

old strikes. Pet. Br. 21-22; see FAMM Br. 3, 9 n.6, 15-23.

1. Petitioner’s argument fundamentally misconceives the

nature of felony-misdemeanor offenses under California law.

The California Supreme Court itself has noted the “serious-

(ness]” of grand theft in the context of proportionality re-

view. In re Lynch, 503 P.2d 921, 936 n.20 (Cal. 1972)

(striking down sentence of life imprisonment for recidivist

indecent exposure as disproportionate under state consti-

tutfon; noting excessiveness of sentence in relation to

“serious” crimes such as felony-misdemeanors forgery and

grand theft). In addition, theft of $1200 in property is a

felony under federal law, 18 U.S.C. 641, and in the vast

majority of States. See Pet. Br. App. 2, at XXIX. While

courts have discretion to reduce a felony grand theft charge

to a misdemeanor after the preliminary hearing or at

sentencing (see Cal. Penal Code §§ 17(a) and (b)(4)), 489(b)

(West 1999)), it remains “a felony for all purposes” (People v.

Superior Court (Perez), 45 Cal. Rptr. 2d 107, 114 (Ct. App.

1995)), “unless and until the trial court imposes a mis-

demeanor sentence.” Jn re Anderson, 447 P.2d 117, 152 (Cal.

1968) (Tobriner, J., concurring), cert. denied, 406 U.S. 971

(1972); see generally 1 B.E. Witkin & N. Epstein, California

Criminal Law § 73, at 119 (3d ed. 2000).

Grand theft should not be treated as a trivial offense

simply because the California legislature has authorized the

crime to be charged and sentenced as a misdemeanor. “The

fact that [a] crime may also be punished by confinement in

local custody for up to one year does not detract from its

felony status.” People v. Haywood, 54 Cal. Rptr. 2d 120, 123

Ct. App. 1996) (internal quotation marks omitted). Califor-

nia law classifies many unquestionably grave crimes as

“wobblers,” such as assault with a deadly weapon, including

certain firearms (Cal. Penal Code § 245 (West 1999 & Supp

2002)), assaulting a judge or juror of a local, state, or federal

court in retaliation for or to prevent the performance of the

victim's official duties (id. § 217.1), assaulting a prison guard

(id. § 241.1 (1999)), witness intimidation (id. § 136.1 (1999)),

taking a bribe to conceal a crime (id. § 153 (1999)), and

money laundering of up to $25,000 per month with intent to

promote criminal activity. /d. § 186.10(a) (1999).

“The purpose of the trial judge’s sentencing discretion” to

downgrade certain felonies “is to impose a misdemeanor

sentence in those cases in which the rehabilitation of the

convicted defendant either does not require, or would be

adversely affected by, incarceration in a state prison as a

felon.” Anderson, 447 P.2d at 152 (Tobriner, J., eoncurring);

accord People v. Bowden, 150 Cal. Rptr. 633, 636 (App. Dep't

Super. Ct. 1978) (to permit “more lenient treatment [for] an

offender” in deserving cases). The reduction is not based on

the “erroneous({] grounds that the offense is conceptually a

misdemeanor but it is rather intended to extend misde-

meanant treatment to a potential felon.” Necochea v.

Superior Court, 100 Cal. Rptr. 693, 695 (Ct. App. 1972). The

crime is not tantamount to a misdemeanor in seriousness.

People v. Statum, No. $097715 (Cal. July 25, 2002), slip op. 6

(“Our case law has consistently treated the misdemeanor as

a lesser offense than the felony wobbler.”); Burris v.

Superior Court, 119 Cal. Rptr. 2d 221, 228 (Ct. App. 2002)

(“li}f the offense is potentially a felony, society has a much

greater interest in its punishment” than if it is a straight

misdemeanor) (internal quotation marks omitted). And

California courts have long held that while treating the

—

crime as a misdemeanor may change its name, “the nature of

the crime is not changed.” Doble v. Superior Court, 241 P.

852, 859 (Cal. 1925); Jn re Rogers, 66 P.2d 1237, 1238 (Cal. Ct.

App. 1937) (“the character of the offense is not changed from

a felony to a misdemeanor by the mere imposition of a fine or

jail sentence”

Many jurisdictions have enacted misdemeanors that

closely correspond to felonies, and persons charged with

felonies often have their charges resolved as misdemeanors

when mitigating circumstances are present. In those juris-

dictions, the existence of closely related misdemeanor

charges has never been thought to undermine the serious-

ness of felony charges when they are brought. The outcome

should be no different here simply because the California

legislature essentially has combined the two in a single

provision. Cf. Davis v. Municipal Court, 757 P.2d 11, 21

Cal. 1988) (likening decision to charge wobbler as misde-

meanor or felony to ordinary decision “to charge either a

felony or misdemeanor’).

2. The features that petitioner claims render the Three

Strikes scheme unduly broad (Pet. Br. 21-22) are not im-

plicated in his case. Although petitioner’s prior “strikes”

were incurred in a single proceeding, the concern that makes

that factor relevant to the proportionality inquiry—that

defendants should be given opportunities to reform them-

selves before incurring a life sentence (see Rummel, 445

U.S. at 278)—is satisfied here. Petitioner has served nine

terms of incarceration for prior offenses. Petitioner has been

convicted of crimes of violence, and his prior convictions are

not unduly old—indeed, he was released from jail on his

“strike” offenses just nine months before his current crime.

California law addresses each of the concerns raised by

petitioner by “providfing] trial courts * * * substantial

discretion to ensure that the three-strikes sentence fits” the

crime (People v. Romero, No. E030010, 2002 WL 1481257, at

*6 (Cal. Ct. App. July 11, 2002)), by sentencing wobblers as

misdemeanors and striking prior convictions for sentencing

purposes See generally Peop e v. Garcia, 976 P.2d 831, &

Cal. 1999) (“the underlying purpose of striking prior

viction allegations is the avoidance of unjust sentences

exercising their “abundant discretion” (People v. Trausch, 42

Cal. Rptr. 2d 836, 841 (Ct. App. 1995 irts

consider the age of prior tions (P .

Court (Alvarez), 928 P.2d 1171, 1179 (Cal. 1997); /

Vessell, 422 Cal. Rptr. 2d 241, 248 (Ct. Aj 9 whether

prior offenses were violent (Alvarez, 928 P.2d at 1179

People v. Williams, 948 P.2d 429, 438-439 (Cal. 1998

whether prior convictions “arose from a single per

aberrant behavior for which [the defendant! served a sing

prison term” (Garcia, 976 P.2d at 839), whether the current

ffense reflected reduced culpabduity People v. | ssdale /

P.3d 1115, 1117 (Cal. 2002)), and even whether the current

iffense is minor (People v. Bishop, 66 Cal. Rptr. 2d 347 (Ct

App. 1997) (affirming decision to strike “where present

crime is a petty theft and prior ent offenses (are) re

mote” Thus, contrary to claims of petitioner's amicus

FAMM Br. 23; id. at 20-23), a “disproportionately harsh

sentence is * * * subject to judicial modification” under

California law. People v. Mantanez, 119 Cal. Rptr. 2d 75

765 (Ct. App. 2002)

Il. COMPARATIVE ANALYSIS OF SENTENCES

WITHIN AND BETWEEN JURISDICTIONS DOES

NOT UNDERMINE THE CONCLUSION THAT

PETITIONER'S SENTENCE IS CONSTITU-

TIONAL

Solem did not create a rigid requirement that sentences

within and between jurisdictions must be compared to assess

every disproportionality claim. Rather, as petitioner and his

amicus recognize (Pet. Br. 17; FAMM Br. 5, 13), Solem and

this Court’s other disproportionality cases are best under

stood to hold that intrajurisdictional and interjurisdictiona!

analyses are appropriate only “to validate an initial judg-

ment that a sentence is grossly disproportionate to a crime.”

See Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring in

part and concurring in the judgment). Because petitioner’s

case does not warrant an “initial judgment that [his] sen-

tence is grossly disproportionate to [his] crime,” «bid,

consideration of the comparative analyses prepared by

petitioner and his amicus is not necessary to reject his claim.

In any event, these comparisons only highlight the limita-

tions of such analysis.

A. Petitioner's Comparison Of California Penalties Over-

looks The Distinct Penological Purposes Served By

Habitual Offender Penalties

Intrajurisdictional comparison is principally useful in

reviewing unusual sentences imposed by individual judges

from an array of authorized punishments by showing that

the sentence departs radically from sentences imposed on

similarly-situated defendants in the same jurisdiction. See

Enmund v. Florida, 458 U.S. 782, 795-796 (1982). To draw

constitutionally significant conclusions from the comparison

of sentences prescribed by the legislature for different

crimes within the same jurisdiction is both difficult and runs

counter to the principle that the fixing of prison terms for

crimes involves judgments that generally are “properly

within the province of legislatures, not courts.” Rummel,

445 U.S. at 275-276. As the Court has recognized, different

“crimes * * * implicate other societal interests, making any

(intrajurisdictional] comparison inherently speculative.” /d.

at 282 n.27. The severity of the penalty a legislature

attaches to a particular crime may be a function not only of

the perceived seriousness and moral culpability of the

crime—the sole factors petitioner considers relevant to

punishment (see Pet. Br. 39-42)—but also of the frequency

with which the crime is committed, the ease or difficulty of

detection, the degree to which the crime may be deterred by

differing amounts of punishment, the particular penological

theory employed by the legislature in that instance, and

even budgetary restrictions. See Harmelin, 501 U.S. at 988

989 (opinion of Scalia, J.); id. at 999 (Kennedy, J., concurring

in part and concurring in the judgment

The limitations of intrajurisdictional comparisons are

apparent in petitioner's claim that his punishment is more

severe than sentences California prescribes for first- and

second-offense crimes he characterizes as more “violent,

socially destructive, and/or morally reprehensible.” Pet. Br

39. Petitioner's argument assumes a pena! code must assign

central importance to retribution. The Eighth Amendment,

however, “does not mandate adoption of any one penological

theory.” Harmelin, 501 U.S. at 999 (Kennedy, J., concurring

in part and concurring in the judgment). The California

legislature could rationally conclude that the penvlogical

interest in rehabilitation justifies comparatively short

sentences for first- and second-time offemders, and indeed,

that courts should have discretion to sentence some offenses

as misdemeanors. At the same time, the legislature could

validly conclude that interests in deterrence and incapacita-

tion warrant comparatively heavy sentences for habitual

offenders, even if their triggering offenses alone would be

considered less serious if viewed in the abstract. See

Rummel, 445 U.S. at 283 n.27 (“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”). Indeed, the central

purpose of the Three Strikes Law was to deter and in-

capacitate habitual offenders, see Ayon, 53 Cal. Rptr. 2d at

861, in light of studies before the legislature indicating that a

smal] number of recidivist offenders were committing a dis-

proportionate share of all crimes." The California legisla-

See Ways and Means Comm. Analysis, 1993-1994 Reg. Sess., AB

971, at 2 (Cal. Jan. 13, 1994) (noting proponents’ claims that the average

ture and voters could therefore reasonably conclude that a

habitual criminal's activity is more “socially destructive”

(Pet. Br. 39) than isolated acts of violent crime.’ Mantanez,

119 Cal. Rptr. 2d at 765 (“{rjecidivism * * * poses a manifest

danger to society”) (internal quotation marks omitted).

Nothing in this Court’s Eighth Amendment jurisprudence

prohibits that decision.

B. Other States Impose Comparable Penalties For

Recidivist Theft

Comparison between jurisdictions suffers from many of

the same flaws, as well as an additional one: Because of

differences in perspectives and problems from State to

State, “[t]he inherent nature of our federal system * * *

result(s] in a wide range of constitutional sentences.” Solem,

463 U.S. at 291 n.17; Harmelin, 501 U.S. at 999 (Kennedy, J..

concurring in part and concurring in the judgment). States

repeat offender commits 187-278 crimes per year and RAND Corp

analysis indicating that typical repeat offenders commit 15 crimes per

year, and that 10% of repeat offenders in a study committed 600 crimes

each per year), Prop 184 Increased Sentences Repeat Offenders Initiatyve

Statute Voter Pamphlet, Analysis by the Legislative Analyst, Genera!

Election (Nov. 8, 1994), at 34 (noting “offenders will serve much longer

sentences * * *. thus limiting their ability to commit additional crimes’):

see also J. Ardaiz, California's Three Strikes Law: History, Expectatwne,

Consequences, 32 McGeorge L. Rev. 1, 9 (2000) (one framer of Three

Strikes Law states that law was based on idea that “a relatively small!

group of people cormmit a large percentage of al) crime”)

'! Petitioner errs in suggesting (Pet. Br. 13, 35, 42) that the Three

Stunkes Law does not draw distinctions between recidivists based on the

gravity of their current offense. The law provides for an alternative

minimum term of wicarceration of three times the term otherwise

specified for the unggernng offense see note 1, supra, which would apply

unstead of the default 25-year term to current felonves hawing maximum

terms of imprisonment greater than eight years and four months. Eg.

Cal. Penal Code § 190 (West 1999 & Supp. 2002) (murder); id. $ 198 (1999)

(voluntary manslaughter), id § 213 (1999) (robbery of am inhabited dwell-

ing); 14. § 208(b) (1999) (Kidnapping person under age of 14); id § 215

(1999) (carjacking), 1d. § 269 (1999) (aggravated sexual assault on a child),

od § 451/a) (1999) (arson causing great bedily injury).

must be given broad leeway to punish offenses differently,

because “[ojur federal system recognizes the independent

power of a State to articulate societal norms through cnimi-

nal law.” McCleskey v. Zant, 499 U.S. 467, 491 (1991)

Tolerance for a variety of approaches is particularly appro-

priate with respect to recidivism offenses, which involve a

number of particularly difficult legislative judgments about

the appropriate role of deterrence and rehabilitation, the

cost of housing prisoners, which triggering and prior crimes

warrant enhanced punishment, “the point at which a recidi-

vist will be deemed to have demonstrated the necessary

propensities{,)] and the amount of time that the recidivist will

be isolated from society.” Rummel, 445 U.S. at 285. All “are

matters largely within the discretion of the punishing

jurisdiction.” [bid

Petitioner and his amicus assert that California imposes

the harshest penalty of any State for petitioner's criminal

conduct. Pet. Br. 43-53; FAMM Br. 13-26. Even if it were

true that California alone imposes life imprisonment on

habitual offenders with records similar to petitioner's, that

fact alone does not suggest gross disproportionality. As the

Court has observed, “[a]bsent a constitutionally imposed

uniformity inimical to traditional notions of federalism, some

State will always bear the distinction of treating particular

offenders more severely than any other State.” Rummel,

445 U.S. at 282.

In any event, a comparison of the sentences prescribed for

conduct similar to petitioner's reveals far more widespread

application of the punishment than was the case in Solem.

There, the Court emphasized that “Helm could not have

received such a severe sentence in 48 of the 50) states,” and

there was no indication that a sentence of life without parole

had been imposed for similar conduct in the only other State

that authorized that sentence. 463 U.S. at 299-300. Taking

into account all of petitioner’s prior convictions, at least eight

States would authorize a life sentence under the circum-

stances of petitioner’s case, which hardly suggests such a

consensus that “reasonable [persons] cannot differ as to the

inappropriateness of a punishment.” /d. at 311 n.3 (Burger,

C.J., dissenting). Alabama mandates a term of life, or a term

of imprisonment of not less than 20 years (Ala. Code § 13A-5-

9 (1994 & Supp. 2001); id. § 13A-8-3 (1994)); Idaho mandates

a term of five years to a maximum of life (Idaho Code § 18-

2407(b) (1997 & Supp. 2000); id. § 19-2514 (1997)); Montane

mandates a term of imprisonment from ten to 100 years

(Mont. Code Ann. §§ 46-18-501, 46-18-502 (2001)); Nevada

mandates life without parole, life with parole eligibility after

ten years, or imprisonment for 25 years (Nev. Rev. Stat.

Ann. § 207.010 (Michie 2001)); Oklahoma authorizes impris-

onment for four years to life (Okla. Stat. Ann. tit. 21, § 51.1

(West 1983 & Supp. 2002)); Seutn Dakota authorizes im-

prisonment for life (S.D. Codifie | om § 22-1-2 (Michie 1998

& Supp. 2002); id. §§ 22-6-1, 22 22-7. (°998)),; Vermont

authorizes imprisonment for \if* ‘¥\. Stat. Ame. tit. 13, § 11

(1998)); and West Virginia mawdale: « “orm of life

imprisonment. W. Va. Code $§ 6)»)3, &)-\)- 18k) (2000)

At the time of the offense, Lowimans wise would have

mandated a sentence of life imprisenment. La Rev. Stat.

Ann. § 15:529.1 (West 1992 & Supp. 1998).

Furthermore, it is clear that, unlike im Solem, 469 U.S. at

300, life sentences have been imposed in several of these

States based on records similar to petitiomer’s.” Thus, an

2 After petitioner was convicted, Louisiana amended its habitual

offender statute, which previously required that exther the triggering

iffense or one of two prior felonies be a qualifying offense, to require that

al] three be qualifying crimes of violence, sex offenses, drug offenses, or

other qualifying offenses. La. Rev. Stat. § 15:529.1 (West 2002). Press

account* suggested that budgetary constraints weighed heavily in the

decision, See M. Antrobus, Boll Reduces Prison Terms: Louisnana Hopes

Save Millions, Dallas Morning News,.June 9, 2001, at 31A (“Proponents

estuumated the measure could smwe (he auaie $63 million per year.”)

4 See, eg. Ex parte Howington, @22 So2d 896 (Ala. 1993) (affirming

life sentence for first-degree ‘iheft prior cemvictions for grand theft,

interjurisdictional comparison of penalties does not suggest

that the California legislature and electorate acted unreason-

ably in selecting penalties.

California’s Three Strikes Law reflects that State's effort

to deal with the serious problem of crime by recidivists. The

State’s determination to impose a life sentence with parole

eligibility after 25 years on a recid vist grand theft offender

does not violate the Eighth Amendment. Evaluated in light

of “the primacy of the legislature, the variety of legitimate

penologica! schemes, the nature of our federal system, and

the requirement that proportionality review be guided by

objective factors,” the sentence in this case cannot be found

to be “grossly disproportionate” (Harme/lin, 501 U.S. at 1001

(Kennedy, J., concurring in part and concurring in the judg-

ment)) to petitioner's recidivist offense.

unauthorized taking, and theft); Sims v. State, 814 P.2d 63, 64 & n.2 (Nev.

1991) (rejecting disproportionality challenge to sentence of life without

parole for grand larceny of $476, where defendant had three prior felonies,

including one armed robbery), State v. Heftel, 513 N.W.2d 397 (S.D. 1994)

(sentence of 70 years’ imprisonment, with 20 years suspended, for recidi-

vast convicted of theft by deception of $700, prior convictions unspecified).

Contrary te the claims of amicus FAMM (FAMM Br. 25), West Virginia

courts would be unlikely to find petitioner's sentence disproportionate in

light of his recent prior convictions for crimes of violence. See State v.

Evans, 508 S.E.2d 606, 610 (W. Va. 1998) (affirming life sentence imposed

on habttwal offender for burglary and petit larceny; noting burglary is a

crime of violence for proportionality review); accord State v. Housden, 399

S$. E.2d 882, 884-886 (W. Va. 1990).

CONCLUSION

The decision of the Court of Appeal of California should be

affirmed.

Respectfully submitted.