365 F.3d 755 (9th Cir. 2004), 02-56066, Ramirez v. Castro

Docket Nº:02-56066.
Citation:365 F.3d 755
Party Name:Isaac RAMIREZ, Petitioner-Appellee, v. R.A. CASTRO, Warden, Respondent-Appellant.
Case Date:April 19, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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365 F.3d 755 (9th Cir. 2004)

Isaac RAMIREZ, Petitioner-Appellee,

v.

R.A. CASTRO, Warden, Respondent-Appellant.

No. 02-56066.

United States Court of Appeals, Ninth Circuit

April 19, 2004

Submitted Jan. 8, 2004.

Argued July 18, 2003.

As Amended April 27, 2004.

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Bill Lockyer, Attorney General of the State of California; Robert R. Anderson, Chief Assistant Attorney General; Gary W. Schons, Senior Assistant Attorney General; Raquel M. Gonzalez, Supervising Deputy Attorney General; and Quisteen S. Shum, Deputy Attorney General, San Diego, CA for the respondent-appellant.

Petitioner-appellee Isaac Ramirez in pro se.

Appeal from the United States District Court for the Central District of California J. Spencer Letts, District Judge, Presiding. D.C. No. CV-00-05602-JSL.

Before: NOONAN, KLEINFELD, and WARDLAW, Circuit Judges.

WARDLAW, Circuit Judge:

The State of California through its Attorney General, Bill Lockyer, appeals from the district court's judgment granting a writ of habeas corpus to petitioner Isaac Ramirez on the grounds that (1) his 25-years-to-life sentence under California's "Three Strikes" law, Cal.Penal Code §§ 667, 667.5, and 1170.12, violated his Eighth Amendment right to be free from cruel and unusual punishment, and (2) the California Court of Appeal's decision to the contrary was objectively unreasonable under 28 U.S.C. § 2254(d)(1). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm the district court.

In May 1996, Ramirez was caught walking out of a Sears department store in broad daylight carrying a $199 VCR for which he had not paid. He immediately surrendered to authorities and returned the VCR; the encounter was without violence. For this crime, prosecutors could have charged Ramirez with a petty theft misdemeanor, punishable by up to six months in county jail. Instead, prosecutors chose to use two nonviolent shoplifting offenses to which Ramirez pleaded guilty in 1991, for both of which he served one sentence of just over six months in county jail, to charge him with one count of petty theft with a prior theft-related conviction, a "wobbler" offense in California punishable as a felony.

That exercise of prosecutorial discretion had grave consequences for Ramirez. After he was convicted of this "wobbler" felony, the jury found that Ramirez's 1991 "robbery" convictions were "strikes" for purposes of California's Three Strikes law enacted in 1994. The trial court thereafter denied Ramirez's motion to strike one or both of his two prior shoplifts, even though it had indicated before trial that it was inclined to do so, and sentenced Ramirez to 25 years to life in prison, with no eligibility for parole until he had served 25 years. The California Court of Appeal affirmed the sentence.

The sentence imposed upon Ramirez for his three shoplifting offenses is more severe than the sentence he would have faced had any one of his three crimes been murder, manslaughter, or rape. Considering the objective factors of this case and performing the fact-specific analysis of Ramirez's criminal history as we are required to do under Supreme Court precedent, we hold that this is an "exceedingly rare" case in which the sentence imposed is grossly

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disproportionate to the crimes committed, in violation of the Eighth Amendment. Lockyer v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment). We further hold that the California Court of Appeal's decision affirming Ramirez's sentence was an objectively unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1), and we affirm the judgment of the district court granting Ramirez's writ of habeas corpus.

I

Because we and the Supreme Court have summarized in detail all of the relevant particularities of charging and sentencing under California's Three Strikes scheme, see Ewing v. California, 538 U.S. 11, 15-17, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003); Brown v. Mayle, 283 F.3d 1019, 1021 (9th Cir. 2002); Andrade v. Attorney General, 270 F.3d 743, 747-48 (9th Cir. 2001) (" Andrade I "), we discuss them only briefly and where relevant here. Unless otherwise noted, all statutory citations are to the California Penal Code.

A

On October 9, 1991, a criminal complaint was filed in Orange County, California charging Ramirez with two counts of second-degree robbery, i.e., willfully and unlawfully taking personal property "by means of force and fear" in violation of Penal Code §§ 211, 212.5(c), and 213(a)(2), a "serious felony" under § 1192.7(c)(19). Each count was punishable by a prison term of two, three, or five years. § 213(a)(2). The first count was for a January 1991 shoplift of merchandise from a Lucky's grocery store, for which Ramirez's older sister was also charged with second-degree commercial burglary. 1 The only "force" related to the offense was that the getaway car, driven by a third person, ran over a security guard's foot causing a "minor injury." The second count was for a September 1991 shoplift at a K-Mart department store. The only "force" related to that offense was that Ramirez pushed a security guard away with his open hand as he was running out of the store. Neither incident involved weapons or violence in furtherance of the crime.

Prosecutors offered Ramirez a plea bargain, pursuant to which he would be sentenced to one year in county jail and three years of probation in exchange for his guilty plea to the two felony counts. They allegedly told Ramirez that if he did not take the plea his sister would be sentenced to five years in prison. On October 22, 1991, Ramirez took the plea. By doing so, he could not have agreed to put two "strikes" on his record, as California did not enact its Three Strikes law until more than two and one-half years later. Ramirez was released after serving six months and 20 days in county jail; he completed his probationary period without incident.

B

After years without any contact with law enforcement, on May 5, 1996, Ramirez shoplifted a $199 VCR from a Sears department store in Montclair, California by placing the VCR in a box, sealing the box with store security tape previously obtained from a friend, and walking out of the store. There was no report of any force or violence associated with the offense. Indeed, when the authorities approached

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him in the Montclair Plaza parking lot, Ramirez surrendered without resistance, admitted his crime, and returned the VCR. When asked why he had tried to steal the VCR, Ramirez replied, "I don't know. I did something stupid."

For this shoplift of merchandise valued under $400, Ramirez could have been charged with petty theft, a misdemeanor offense punishable by a maximum sentence of six months in jail. See §§ 486-490. Instead, San Bernardino County prosecutors charged Ramirez with one count of petty theft with a prior theft-related conviction under § 666. In light of his two prior "serious felony" convictions under § 1192.7, 2 a conviction for this "wobbler" felony offense would bring Ramirez within the scope of California's Three Strikes law, exposing him to a possible sentence of 25 years to life in prison. 3 The "wobbler" offense would be treated as a felony unless and until either the prosecution decided to charge it as a misdemeanor, or the trial court reduced it to a misdemeanor at the preliminary hearing or at sentencing to avoid application of the Three Strikes law. See Ewing, 538 U.S. at 17, 123 S.Ct. 1179 (citing Cal.Penal Code §§ 17(b)(5), 17(b)(1), and California cases).

On September 13, 1996, Ramirez moved the trial court to strike one or both of his 1991 convictions pursuant to § 1385(a) and People v. Romero, 13 Cal.4th 497, 528-30, 53 Cal.Rptr.2d 789, 808-09, 917 P.2d 628, 647-48 (1996). Although the court denied the pre-trial motion, it stated:

I do think it may be an appropriate case down the road to look at striking one [of the priors because] it does appear [the §] 211's are more--at least one of them, are more likely confrontation petty theft and not really robbery, notwithstanding the convictions, but frankly I think it's a little premature.

Ramirez's trial began on January 27, 1997, and the jury convicted him on January 28, 1997. On January 29, 1997, in a bifurcated proceeding, a jury found true the allegations that Ramirez suffered two prior serious felony "strikes." The trial court then held a sentencing hearing and considered Ramirez's renewed motion to strike one or both of his priors. Were the court to strike one of his priors, his maximum sentence for the instant offense would have been "twice the term otherwise provided as punishment for the current felony conviction," § 667(e)(1), or six years in prison. See §§ 18, 666.

At the hearing, Ramirez admitted committing the petty theft of the VCR, but stated that a sentence of 25 years to life in prison was too severe. He told the sentencing judge that he had worked hard since his 1991 offenses to turn his life around, purchasing two businesses, attending school, receiving certificates in parenting and substance abuse, and establishing child support and visitation. Despite his efforts, his wife lost her job, he lost both businesses and his home, and he was forced to file for bankruptcy. His attorney described Ramirez's nonviolent petty

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theft of the VCR as "a simple situation of backslide." With respect to the 1991 K-Mart offense, Ramirez admitted that he "may have pushed the gentleman away to run" but stated he did not commit "any violent act" and was not "a violent person." He told the judge that "you're sentencing my children as well...

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