# Amicus Curiae Brief — Ewing v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0570%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 11

## Text

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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

RED GOED cccrneceneneeeneseemnnnen
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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
Ne

(IIT)

10

13

13

18

19

24

—

IV

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

VI

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

Ce
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)

2

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

3

§ 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,

4

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.

5
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

7

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).

8

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-

9

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-

10

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

11

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

12

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.

13

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

l4

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.

15

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).

16

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

17
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.

1S

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

19

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”).

20

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

21

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

99
—

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

23
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

4
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!

24

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

25

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

26

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).

27

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-

28
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,

29

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).

30

CONCLUSION

The decision of the Court of Appeal of California should be
affirmed.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General

MICHAEL CHERTOFF
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

JOHN P. ELWoop
Assistant to the Solicitor
General

JOEL M. GERSHOWITZ
Attorney

JULY 2002

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0570%3A08. Public record. Not legal advice.