Criminal Appeal

Life Sentence for 0.03 grams of Meth

Yesterday, Marin Superior Court Judge Stephen Graham imposed a 25-to-life sentence for simple possession of 0.03 grams of methamphetamine under California’s Three Strikes law.  (People v. Foroutan, No. 114626A.)  The defendant has never committed a crime of violence and his prior strikes were residential burglaries, the most recent of which was from 1992. 

Full disclosure:  Mr. Foroutan is represented by the Stanford Law School Criminal Defense Clinic, which provides free legal services to inmates serving three strikes sentence for non-violent offenses.  I am a supervising attorney at the clinic.  This blog ordinarily doesn’t publicize our own cases, but I’m obviously making an exception.   

9th Cir. Rejects Three-Striker's 8th Amend Claim

This morning the Ninth Circuit rejected a California inmate's 8th Amendment challenge to his  25-to-life three strikes sentence. Taylor v. Lewis (9th Cir. no. 04-17517, Aug. 15, 2006).  The sentence was imposed for possession of .036 grams of cocaine.Taylor's strikes included a 1980 voluntary manslaughter conviction and a 1986 robbery with personal gun use. (Perhaps it was the prior manslaughter conviction that led the AG to not bother to file a brief in this appeal.)

In its proporitionality review, the court noted that Taylor's 25-to-life sentence was less severe than the sentence in Solem (LWOP), more severe than that in Rummel (12-to-life) and "identical" to the three strikes sentence recently upheld in Andrade and Ewing. (That's not quite correct because the sentence in Andrade was 50-to-life; but for proportionality review, when comparing to one count of petty theft, 25-to-life might be the relevant term to consider.) The Court then rejected Taylor's argument that his possession offense was less serious than the property crimes in Rummel ($120.75 by false pretenses), Andrade ($153.54 worth of videotapes) and Ewing (three golf clubs worth $399 each) because his crime was victimless:

Accordingly, it was not unreasonable for the California Court of Appeal to consider Taylor’s triggering offense at least as serious as the property offenses involved in Rummel, Ewing, and Andrade, where the Supreme Court upheld recidivist sentences of 12 or 25 years to life.

After then noting how Taylor's prior criminal history, including the voluntary manslaughter, was more serious than that in the other cases, the Court concluded no relief was available under AEDPA:

in light of Rummel, Ewing, and Andrade, where the Supreme Court upheld lengthy recidivist sentences, we are satisfied that the state court was not required to find a violation of the Eighth Amendment because: (1) Taylor will be eligible for parole after 25 years; (2) his triggering offense was, at least, not obviously less serious than a property offense such as felony grand theft; and (3) his prior offenses involved violence and crimes against a person, and he has served multiple prior prison terms.

Judge O'Scannlain wrote the opinion and was joined by Judges Goodwin and Thomas. Judge Thomas, whose entire opinion follows, wrote separately to express that his vote was compelled by AEDPA:

Because I believe that the state court decision was not an objectively unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, I concur in the judgment.

Three Strikes Law Still Overinclusive!

As I commented over at Patterico's Pontifications (Patterico is a deputy d.a.), the swing in public opinion on Prop. 66 tells us that Californians think the 3 Strikes Law is overinclusive, but, when confronted with the prospect of the release of 26,000 felons, including sex offenders and murderers, they didn't want to fix it the Prop. 66 way. (Of course, that's not really what the initiative would have done, but I guess we're past that now.)

With that in mind, how about: (1) leave the serious & violent felony lists alone (no matter how much I'd like to get 422's off that list); (2) require a current conviction for a serious or violent felony for a 3d strike 25-to-life sentence; (3) allow 2d-strike sentencing (doubling of base term) for any current felony (with one prior serious or violent felony); (4) expressly provide for resentencing for third strikers only (no one need worry that release of 26K inmates is imminent), but no resentencing for third strikers who have prior homicide or sex offense convictions.

While this proposal would be a way-underinclusive fix, it answers a great deal of the concerns expressed about Prop. 66.

I've been flip-flopping all day about whether 3 Strikes can ever be fixed. There was wide popular support for some components of Prop. 66. Can legislators or future initiative writers/backers see that, or can they only see the blur of Jerry and Arnold.

'3 strikes' faces test of scope on Nov. 2 Prop. 66 addresses debate -- is the law effective or cruel? Read the S.F. Chronicle story.

Prop. 66 Coverage.

L.A. Times Magazine: "They Changed Their Minds on Three Strikes. Can They Change the Voters'?"

Sacramernto Bee: "Editorial: Yes on Proposition 66 Reserve three strikes for violent offenders"; "Field Poll: Softening '3 strikes' still popular New survey added a question to try to ensure that voters understand Prop. 66."

SF Chron: "Array of California ballot measures test Schwarzenegger clout"

SJ Mercury News: Soros, Lewis, Sperling give to Proposition 66 fund

KSBY: Opponents of Proposition 66 speak out in Santa Barbara

Cal. Supremes: It Is an Abuse of Discretion to Strike Three Strikes Law Prior Conviction on the Basis that the Magistrate Conducting the Preliminary Hearing in the Prior Case Had Held That There Was Insufficient Evidence to Hold Defendant to Answer on That Charge. People v. Wallace, no. S113321 (Cal.Supreme Court, July 26, 2004).

The unanimous opinion was authored by Chief Justice George. Justice Moreno, who fully concurred in the majority opinion, wrote a brief separate concurrence to emphasize that "nothing forbids a court from considering the insufficiency of the underlying evidence to determine whether the magistrate and the trial court were correct in their rulings, and in then dismissing a strike on that basis."

The majority expressly did not reach this question of whether “the trial court, in the exercise of its discretion under [Penal Code] section 1385, properly may consider the evidence adduced at the preliminary hearing in the prior case. The record does not suggest that the trial court considered such evidence in striking one of defendant’s prior convictions in the present case, but rather considered only the fact of the magistrate’s ruling declining to hold defendant to answer. Accordingly, we need not comment upon the propriety of a trial court considering the evidence presented at the preliminary hearing.” (Fn. 2.)

No Error In Enhancing Three Strikes Sentence With Gun Use (12022.53) Term Where Gun Use Enhancement Was Already Used in Determining Minimum Sentence of Indeterminate Three Strikes Sentence. People v. Coker, no. C041997 (Cal.Ct.App. (3d Dist.), July 9, 2004).

Denial of Motion to Strike (Cal. Pen. Code sec. 1385) Prior Strike Allegation is Reviewed for Abuse of Discretion. People v. Carmony, no. S115090 (Cal.Supreme Court, July 8, 2004) (author: Brown; unanimous.)

Note: Justice Moreno (with Justice Chin concurring) wrote a short separate concurring opinion emphasizing that the Court's decision that there was no abuse of discretion in the denial of the motion to strike in this case did not preclude a finding, upon remand, that the sentence violated the 8th Amendment. Justice Moreno was clearly troubled by the life sentence in this case:

it is difficult to escape the conclusion that the electorate that enacted the Three Strikes law did not intend to impose a life sentence on someone whose last offense was a technical violation of the sex offender registration statute --- failing to register within five days of his birthday although he had registered a month earlier and had not changed his address since then --- that posed no danger to the public. This case joins the growing ranks of cases in which life sentences were imposed after the commission of minor felonies.

12021 with 186.22(b) Enc. is Serious Felonly; Evid. Suffic. Activite Participation Street Gang; Prior Gun Possession Properly Admitted. People v. Martinez, no. G032245 (Cal.Ct.App. 4/3, June 30, 2004).

Holdings: (1) Evidence was sufficient for conviction for active participation in a criminal street gang (Cal.Pen.Code sec. 186.22(a)), where "members attempted murders, engaged in drive-by shootings and vehicle burglaries, illegally possessed firearms, and shot at an inhabited building," despite fact that tesifying police officer expert never stated that such activities were a "primary activity" of the group. (2) No undue prejudice in admission of prior possession of a similar firearm two years earlier. (3) prior conviction for violating section 12021(d) (possession of a firearm while on probation) along with a 186.22(b) enhancement is a serious felony, within the meaning of sec. 1192.7(c)(28).

Failure to Double Term, Under 3 Strikes Law, on Subordinate Count and Failure to Exercise Discretion to Strike Strike as to That Count Requires Remand for Resentencing, Despite Prosecutor's Failure to Object. People v. Ayers, no. B165908 (Cal.Ct.App. 2/7, June 24, 2004)

Mandatory Three Strikes Consecutive Sentencing for Offenses Not Committed on Same Occasion, or Arising Out of Same Set of Operative Facts, Applies to Felony Convictions for Which Judge Dismissed Strikes, As Long As There Is At Least One Current Felony Enhanced by a Strike. People v. Casper, no. S114285 (Cal.Supreme Court, June 3, 2004).

Majority Opinion (authored by Justice Brown): In sum, there can be no doubt after examining the language of section 667, subdivision (c) but that consecutive sentences are required for all current felony convictions, regardless of whether a strike allegation attaches to them, if the crimes did not arise on the same occasion or under the same set of operative facts. Reaching a different conclusion here as to this requirement would distort the statutory language, eviscerate the three strikes law, and return to trial judges a discretion in sentencing both the Legislature and the electorate sought to severely curtail.

Justice Kennard, joined by Justice Werdeger, dissented.

California Criminal Trial Lawyers Blog Three Strikes Amendment Initiative. If you want to hear the perspectives of criminal trial lawyers in California, try Public Defender Dude and Patterico's Pontifications. The former is, obviously, a deputy P.D.; the latter is a deputy D.A. P.D. Dude sticks to crim-law issues. Patterico's blog is more global, but he touches on criminal matters. The two have been exchanging thoughts on the Three Strikes and Child Protection Initiative of 2004. Read their thoughts here and here, and don't miss the comments on those posts.

The initiate apparently has enough signatures to make the November ballot, as reported in a Mercury News article yesterday.

While I'm generally not a fan of the initiative process, I absolutely endorse the proposal's requirement that the Third Strike be serious or violent and I also support the provision requiring resentencing of defendant's sentenced prior to the amendment. The Legislature's not going to make the change and too many defendants are serving sentences that are way too long.

Deputy D.A. Patterico is opposed. He's got several complaints, which I'll try to respond to in the next week or so. (Blogging time is short right now.) Patterico's general technique is to toss out the worst case scenarios, which don't seem to be terribly realistic. Patterico's first complaint is with the fact that, under the initiative, multiple prior felonies brought and tried in a single proceeding would now count as only one strike. He brings out Richard Ramirez---the night stalker---for this one, explaining that Ramirez was convicted of "13 counts of murder, as well as 30 additional counts of rape and residential burglary" in a single proceeding and, under the proposed amendment, all those felonies would count as only a single strike. Red herring. Ramirez will never be paroled. The "brought and tried separately" language, moreover, is not a new thing. It comes right out of section 667(a), the five-year serious felony prior enhancement provision, which has long provided that only one such five-year enhancement shall apply for each prior serious felony brought and tried separately. All this amendment means is that if the D.A. really wants multiple strikes to arise out of multiple separate incidents, the D.A. can charge and prosecute them separately. (A nice side benefit of this would be fairer trials for defendants.) By the way, Ramirez may yet get another strike (even as defined by the initiative) if he's ever tried in his on-hold San Francisco case.

More on the initiate in the coming weeks.

Quick fix. The Ninth Circuit has fixed the incorrect statements of California sentencing law in its April 19 opinion finding a Three Strikes sentence to be cruel and unusual. (Ramirez v. Castro, no. 02-56066.) For an explanation of the errors and the corrections (as well as some chest-beating) read this post at Patterico's Pontifications.

Read the original opinion here. Read the order here. Read the amended opinion here.

Sentencing Court Abused Its Discretion In Failing To Dismiss a Three Strikes Prior Conviction Where the Two Strikes Arose from the Same Act. People v. Burgos, no. B165985 (Cal.Ct.App. (2d Dist., Div. 2) Apr. 22, 2004).

You don't see this every day.

Offer, Acceptance, and You're Out.
People v. Gipson, no. H025783 (Cal.Ct.App. (6th Dist.) Apr. 20, 2004).

Argument: Appellant argued that his 1992 plea bargain was a contract between the state and him, that the contract limited the future use of the convictions resulting from the plea bargain to those available in the Penal Code at the time of the plea bargain, and that the contract clauses of the state and federal constitutions forbid the state legislature from enacting new burdens (e.g. the Three Strikes Law) retroactively applicable to the consummated contract.

Holding: No dice.

Commentary. I know next to nothing about the contract clauses, but this creative argument is compelling as it touches upon the unfairness of new recidivist statutes increasing penalties for crimes committed long before the enactment, particularly where there was a plea bargain made based upon certain assumptions about the law. Should a reasonable defendant in 1992 have anticipated that because of his 1992 plea bargain a future offense for, as in this case, assault with a deadly weapon would result in a life term? (The argument is even more compelling for a non-serious, non-violent current offense.)

"I did not realize until well into his argument that he was the petitioner and not a lawyer for the petitioner." No, that's not a supreme court justice talking about Michael Newdow. Rather, it was Ninth Circuit Judge Andrew Kleinfeld referring to a habeas petitioner in a dissenting opinion from today's Ninth Circuit opinion in Ramirez v. Castro, no. 02-56066.

The majority in Ramirez, somewhat remarkably, held that Ramirez's three strikes sentence of 25-years-to-life constituted cruel and unusual punishment. Actually, because this was an AEDPA case, the holding was that the state court of appeal's rejection of the same claim constituted an unreasonable application of U.S. Supreme Court's gross disproportionality 8th Amendment jurisprudence. It's remarkable because just last year the Supreme Court held in Lockyer v. Andrade that the gross disproportionality doctrine was not clearly defined and that the state court's rejection of Andrade's 8th Amendment claim was neither contrary to, nor constituted an unreasonable application of, Supreme Court gross disproportionality caselaw.

So how is Ramirez distinguishable from Andrade? They're factually distinguishable in terms of their records, and, perhaps more importantly, they're distinguishable in that the state court decision in Ramirez was based on factual errors, thus entitling it to less deference under AEDPA.

Andrade was sentenced to a 50-to-life three strikes sentence for stealing $153 worth of videotapes from two K-Marts (made felonies by his prior theft-related convictions). His prior strikes included multiple first degree residential burglaries and he had other non-serious/non-violent convictions, going back to 1982.

Ramirez was sentenced to 25-to-life for theft of a $199 VCR (made a felony by his prior theft-related convictions). His prior criminal history is comprised solely of two 1991 convictions for second-degree robbery obtained through a single guilty plea, for which his total sentence was one year in county jail and three years probation. The prior robberies were nonviolent, involved no weapons, and the "force" used in the robberies consisted of "a 'minor injury' caused when somebody else drove over the foot of a grocery store security guard, and that Ramirez pushed a K-Mart security guard out of his way as he fled the store. The original sentencing court described those offenses as 'confrontation petty theft and not really robbery, notwithstanding the convictions.'”

The Ninth Circuit took particular issue with the state court of appeal's mischaracterization of the record. The state court had stated that Ramirez had “'two attempts at rehabilitation which [he] did not take advantage of.'” But because the two prior convictions were consolidated for plea and sentencing, he had only one such chance at rehabilitation. As the Ninth Circuit explained,

"We simply hold that it was objectively unreasonable in this case for the state court to obscure Ramirez’s criminal history to avoid in its disproportionality analysis the facts that Ramirez had neither served time in state prison nor been given two attempts at rehabilitation - - factors that were critical to the analysis in Rummel."

What else is unusual about this case?

Settlement Talks. At oral argument, "the panel deferred submission of the case and requested that the Warden’s counsel discuss with California Attorney General Bill Lockyer whether some resolution of the appeal could be reached through negotiation with Ramirez." Attorney General Lockyer declined, stating that he had “no authority to negotiate a settlement of this case.”

Pro Per Argument. You don't see too many pro per petitioners arguing at the Ninth Circuit. But Ramirez had been released pursuant to the district court's grant of habeas relief. Ramirez apparently made quite an impression (see title of this post).

Passionate dissent. Despite disagreeing with the majority, Judge Kleinfeld was thought the sentence disproportionate and perhaps would have reversed but for the deference to the state courts required by AEDPA: "I can easily say (and have said) that I would have reached a different conclusion from the sentencing court, and perhaps I could bring myself to say that the state appellate court erred. And though this is much harder in light of the indeterminacy of the Supreme Court language and the arguability of which of the Court’s precedents is analogous, perhaps I could bring myself to join in a conclusion that the state appellate court clearly erred. But I cannot bring myself to say that the state court was 'objectively unreasonable' in its application of Andrade, Harmelin, Solem, Ewing, and Rummel."

What's next? I suppose we'll hear something from the Supreme Court the first week of October.

Majority: Noonan and Wardlaw (author)
Dissent: Andrew Kleinfeld

Out-of-State Prior Dismissed Following Diversion Can be Strike.
Case: People v. Laino, no. S103324 (Cal. Supreme Court, Apr. 8, 2004)

Proceeding: Prosecutor's appeal, following guilty plea, of determination that a prior conviction was not a strike.

Holding: Defendant-appellant had a prior Arizona conviction for aggravated assault with a handgun against his wife. After his successful completion of a diversion program, the case was dismissed. The California Supreme Court held "that the full faith and credit clause does not bar our courts from deciding this issue under California law" and that "under California law, defendant suffered a prior conviction by reason of his guilty plea in Arizona."

The decision was unanimous and the opinion was authored by Justice Carlos Moreno.

DA May Re-Try Strike Allegation After Appellate Court Reverses for Insufficient Evidence (Cal.Sup.Ct.)

In a unanimous opinion authored by Justice Ming Chin, the California Supreme Court held, today, that retrial of a prior conviction allegation under the Three Strikes Law is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence. People v. Barragan, no. S105734