283 F.3d 1019 (9th Cir. 2001), 99-17261, Brown v. Mayle

Docket Nº:99-17261, 99-56197
Citation:283 F.3d 1019
Case Date:December 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1019

283 F.3d 1019 (9th Cir. 2001)






No. 99-17261, 99-56197

United States Court of Appeals, Ninth Circuit

December 12, 2001

Argued and Submitted December 12, 2001--Pasadena, California

--Pasadena, California

February 7, 2002

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Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding D.C. No. CV-99-00241-WBS Appeal from the United States District Court for the Central District of California Manuel L. Real, Chief Judge, Presiding D.C. No. CV-98-04672-R-BQR

Counsel: Erwin Chemerinsky, Los Angeles, California, for the appellants. Brian R. Means and Stephanie A. Miyoshi, State of California Department of Justice, for the appellees.

Before: Stephen Reinhardt, A. Wallace Tashima and Marsha S. Berzon, Circuit Judges.

Berzon, Circuit Judge


Earnest Bray, Jr. and Richard Napoleon Brown were each convicted of petty theft, Bray for attempting to steal three videotapes and Brown for attempting to steal a steering wheel alarm. Because of prior convictions, each was sentenced to life without possibility of parole for 25 years. Each now appeals the denial of a habeas petition contending that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment.

This court recently held, in Andrade v. Attorney General of the State of California, 270 F.3d 743 (9th Cir. 2001), that a 50-year-to-life sentence for two petty theft convictions violated the Eighth Amendment's prohibition against cruel and unusual punishment, and that the California Court of Appeal unreasonably applied clearly established United States Supreme Court law when it held otherwise. Id. at 747. Because these cases are indistinguishable from Andrade in any material respect, we similarly hold that the California Court of Appeal decisions upholding 25-year-to-life sentences for petty theft were contrary to and unreasonable applications of clearly established Supreme Court law. Like Andrade, "[o]ur decision Page 1021

does not invalidate California's Three Strikes law generally." Id.


A. Provisions of The California Three Strikes Law

As Andrade summarizes in detail the pertinent background and features of California's so-called three strikes law ("Three Strikes"), Cal. Penal Code § § § § 667(b)-(i) and 1170.12, we do so only briefly here. See 270 F.3d at 747-48. Unless otherwise stated, all statutory citations are to the California Penal Code.

A defendant with two or more prior "strikes" -that is, certain felony convictions -who is convicted of a felony must be sentenced under the Three Strikes statute to no less than 25 years to life, § § 667(e)(2)(A), and cannot receive "good time credits" to reduce his sentence below the mandatory minimum term of 25 years. In re Cervera, 16 P.3d 176, 181 (Cal. 2001). Only "serious" felonies, see § § 1192.7(c), or "violent" felonies, see § § 667.5(c), count as prior strikes. § § 667(d)(1). The current offense that triggers the Three Strikes penalties, however, may be any felony under California law. § § 667(e)(2)(A). It is this latter feature that led to life sentences for minor thefts in Andrade and in these cases.

Petty theft -theft of goods or money worth less than $400, § § § § 487, 488 -is a misdemeanor, carrying a maximum sentence of 6 months in jail, § § 490. Petty theft "with a prior" -that is, when committed after a conviction and time served for petty theft, grand theft, auto theft, burglary, carjacking, robbery, or receiving or concealing stolen property -is punishable either as a misdemeanor with up to one year in county jail or as a felony with up to three years in state prison. § § § § 666, 496, 18.

A conviction of petty theft with a prior as a felony can count as the triggering offense for purposes of Three Strikes, People v. Terry, 54 Cal.Rptr.2d 769, 770-71 (Ct. App. 1996), leading to two unusual features of California recidivism law. First, the "core conduct" of petty theft with a prior "is, in the first instance, classified as a misdemeanor rather than a felony." Andrade, 270 F.3d at 760. Where petty theft with a prior results in a felony conviction, the petty theft offender's recidivism can be "double counted, " so as initially to transform the misdemeanor of petty theft into a felony and then to count it as the basis for a life sentence. Id. at 759-60; see also Riggs v. California, 525 U.S. 1114 (1999) (Stevens, J., memorandum opinion respecting the denial of the petition for writ of certiorari).

Second, if petty theft is committed after multiple prior convictions for non-theft offenses, including serious and violent offenses, then the petty theft must be charged as a misdemeanor and cannot trigger Three Strikes' enhancements. See § § 666. So, for example, if Bray's or Brown's prior convictions had all been for assault or manslaughter, neither could have been sentenced to 25 years to life for his petty theft conviction; only a six-month misdemeanor sentence would have been possible. See § § 490, 666.

B. Facts and Procedural History

1. Bray v. Ylst

a. Bray's Principal Offense

On March 28, 1994, Bray attempted to steal three videotapes from a music and video store in a Long Beach, California shopping mall. He activated the store's alarm system when he tried to leave, and the store's clerks detained him and turned him over to mall security. When the police arrived and arrested Bray, they confiscated a plastic bag containing the videotapes.

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  1. Bray's Prior Convictions

In finding Bray guilty for the theft of the videotapes, the jury also found that he had been convicted of four previous felony offenses.1 In February 1980, Bray was convicted on three separate counts of robbery, § § 211. The first two convictions stemmed from one August 1979 incident in which Bray and a co-defendant stole a purse and a briefcase from the driver of a car. When the victim grabbed Bray, his codefendant, who was brandishing a gun, pointed it at the driver's head and threatened to kill her if she did not release Bray. The victim complied, but as Bray and the co-defendant fled the scene, the co-defendant fired three shots.

The third robbery conviction stemmed from a separate incident in which Bray and several co-defendants approached the victim and demanded his watch. One co-defendant then hit the victim in the face and took the watch. After the victim fell to the ground, a second co-defendant kicked him in the face and took five dollars in cash. The court sentenced Bray to three years in prison for each of the three convictions, the sentences to run concurrently. After 21 months, he was released on a work furlough.

The jury also found that in November 1987, Bray was again convicted of robbery. The court sentenced Bray to three years in prison, but he was paroled approximately 18 months later.

c. Prior Proceedings

Based on the presence of a prior theft conviction, Bray's current petty theft offense was charged as a felony, § § 666. The jury convicted Bray of the felony and returned "true" findings on the allegations that Bray had four prior serious or violent felony convictions and had served two prior prison terms. Because he was convicted for the current offense as a felony and the jury found two or more prior strikes, Bray was subject to the mandatory 25-year-to-life sentence provided by Three Strikes. At sentencing, the court rejected Bray's argument that his punishment was cruel and unusual in violation of the Eighth Amendment. Bray appealed his sentence on the same grounds, but the California Court of Appeal rejected this contention in an unpublished opinion, and the California Supreme Court denied Bray's petition for review.

Bray then filed a 28 U.S.C. § § 2254 habeas petition in district court. The magistrate judge issued a report concluding that Bray's sentence did not violate the prohibition against cruel and unusual punishment. Adopting the magistrate judge's reasoning, the district court denied Bray's habeas petition. Although the district court denied Bray's application for a Certificate of Appealability (COA), this court granted a COA on the cruel and unusual punishment issue.2

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2. Brown v. Mayle

a. Brown's Principal Offense

On August 7, 1995, Brown attempted to shoplift a steering wheel alarm worth $25 from a Walgreens store. He picked up a few items in the store and left them on the counter, telling the clerk that he needed to go get his checkbook. He returned several hours later and brought a few more items to the counter. When the clerk asked if he had found his checkbook, he replied that he had. After questioning why the clerk kept watching him, he put the items down and stated that he did not want to buy anything from the store. When Brown tried to leave again, he set off the store's alarm system. The clerk detained Brown and asked him to return what he had taken. He evidently refused. When security guards arrived, they found on Brown the steering wheel alarm with a security tag.3

b. Brown's Prior Convictions

Although Brown's criminal history is somewhat longer than Bray's and includes numerous convictions for misdemeanor offenses, Brown has a total of five serious or violent prior felony convictions: 4 A 1971 conviction for two counts of second degree burglary, § § 459; a 1976 conviction for two counts of assault with a deadly weapon, § § 245; and a 1984 robbery conviction, 5 § § 211. The record does not reveal the underlying facts of these offenses.

c. Prior Proceedings

The jury found Brown guilty of petty theft with a prior, § § 666. Brown had waived the right to have a jury determine...

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