Gonzalez v. Duncan

Decision Date30 December 2008
Docket NumberNo. 06-56523.,06-56523.
PartiesCecilio GONZALEZ, Petitioner-Appellant, v. W.A. DUNCAN, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CV-04-09786-DOC.

Before: WILLIAM C. CANBY, JR., ANDREW J. KLEINFELD, and JAY S. BYBEE, Circuit Judges.

BYBEE, Circuit Judge:

Cecilio Gonzalez was convicted by a jury of failing to update his annual sex offender registration within five working days of his birthday, in violation of California Penal Code § 290(a)(1)(D).1 Because of his prior criminal convictions, he received a sentence of 28 years to life imprisonment under California's "Three Strikes" law. On habeas review, we must decide whether his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment and, if so, whether the contrary conclusion of the California Court of Appeal constituted an unreasonable application of clearly established federal law.

The California courts have characterized the state's registration requirement as a regulatory offense, a "most technical violation" that "by itself, pose[s] no danger to society." People v. Cluff, 87 Cal.App.4th 991, 105 Cal.Rptr.2d 80, 81, 86 (2001). In a case materially indistinguishable from this one, the California Court of Appeal concluded that a Three Strikes sentence of 25 years to life imprisonment for violating the registration requirement was "grossly disproportionate to the offense" and violated the Eighth Amendment. People v. Carmony, 127 Cal.App.4th 1066, 26 Cal. Rptr.3d 365, 368-69 (2005). Although our standard of review is more deferential, we too conclude that Gonzalez's sentence is grossly disproportionate to his offense. We further conclude that the California Court of Appeal's decision affirming Gonzalez's sentence constitutes an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). We therefore reverse the district court's denial of Gonzalez's petition and remand with instructions to grant the petition for a writ of habeas corpus.

I

On August 10, 2001, Petitioner Cecilio Gonzalez, a convicted sex offender, was charged by information in Los Angeles County Superior Court with two felony violations of California's sex offender registration statute, California Penal Code § 290(a)(1)(A), for allegedly failing to register a change of address on and between May 16, 2000 and May 31, 2001. The information further alleged that Gonzalez had been convicted of three serious or violent felonies that constituted "strikes" under California's Three Strikes law.

Gonzalez pled not guilty. Prior to trial, he moved to proceed in propria persona. At a pretrial hearing on September 7, 2001, the superior court expressed concern about the possibility that Gonzalez would receive a life sentence even though the facts indicated that Gonzalez had attempted to comply with the registration requirements. The court thus encouraged Gonzales to accept a plea agreement in exchange for a midterm sentence of two years. Gonzalez maintained his innocence and refused to accept a plea. The court granted Gonzalez's motion to proceed pro per.

On September 10, 2001, the prosecution amended the information. Count 1 of the amended information alleged that Gonzalez failed to register a change of address on and between May 16, 2000, and May 31, 2001, in violation of California Penal Code § 290(a)(1)(A), and Count 2 alleged that he failed to update his registration within five working days of his February 24, 2001, birthday in violation of California Penal Code § 290(a)(1)(D). The amended information retained the allegation of three prior serious or violent felony convictions under California's Three Strikes law.

Trial began on January 16, 2002. When the superior court asked if the parties were ready to begin, Gonzalez expressed his willingness to accept a plea agreement in exchange for a one year sentence. The court offered a four year sentence, which Gonzalez declined. Gonzalez moved for a Romero2 hearing to permit the court to strike one or more of his prior felony convictions for Three Strikes sentencing purposes in the interest of justice. After a brief hearing, the superior court declined to strike any of the prior convictions.

The case proceeded to a jury trial, during which Gonzalez cross-examined prosecution witnesses and presented a defense. The government's theory on Count 1 was that Gonzalez had moved twice without updating his sex offender registration: first, from his grandmother's house in Lake View Terrace to his wife's house in Chatsworth; and second, from the house in Chatsworth to an apartment he allegedly shared with his wife in North Hills.

The government's basis for Count 2 was that Gonzalez had failed to update his registration within five working days of his February 24, 2001, birthday. Testimony established that the California Department of Corrections notified Gonzalez of his duty to register annually within five working days of his birthday on May 2, 2000. Gonzalez registered his Lake View Terrace address on May 23, 2000, nine months before his February 24, 2001, birthday. On the registration form, Gonzalez initialed the statement: "I must annually, within 5 working days of my birthday, go to the law enforcement agency having jurisdiction over my location or place of residence and update my registration information." Gonzalez, however, did not update his registration until May 21, 2001, within one year of being advised of his duty to report annually, but three months after his birthday.

On January 23, 2002, the jury acquitted Gonzales of failing to register a change of address but convicted him of failing to update his registration annually within five working days of his birthday. At a bench trial to determine the validity of Gonzalez's prior convictions, the prosecutor introduced abstracts of judgment for a 1988 conviction for cocaine possession, a 1989 conviction for committing a lewd act with a child under 14 years of age, a 1989 conviction for attempted rape by force,3 and a 1992 conviction for second-degree robbery. The superior court found three prior serious or violent felony convictions under California's Three Strikes law4 and three prior prison terms, which each triggered additional one-year sentence enhancements under California law.5 Gonzalez renewed his Romero motion to strike his prior convictions, which the superior court denied. The superior court sentenced Gonzalez to an indeterminate period of 28 years to life imprisonment. The California Court of Appeal affirmed the sentence in an eight page unpublished opinion, and the California Supreme Court declined to hear the case on direct appeal.

Gonzalez filed state habeas petitions in the California Court of Appeal and the California Supreme Court, which were both summarily denied. Gonzalez then filed this 28 U.S.C. § 2254 petition for a writ of habeas corpus in the United States District Court for the Central District of California. A magistrate judge recommended denying Gonzalez habeas relief, and the district court adopted the recommendation and entered judgment dismissing the petition. Gonzalez timely filed a notice of appeal and applied for a certificate of appealability. We certified one issue: "whether appellant's sentence of 28 years-to-life under California's Three Strikes law violates the Eighth Amendment."6

II

We review the district court's denial of a 28 U.S.C. § 2254 petition for a writ of habeas corpus de novo. Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.2002). Applying the deferential standard of review of the Antiterrorism and Effective Death Penalty Act (AEDPA), we will not disturb the decisions of the California state courts with respect to Gonzalez's Eighth Amendment claim unless the state court's resolution of that claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Ramirez v. Castro, 365 F.3d 755, 762 (9th Cir.2004). Furthermore, we presume that factual findings made by a state court are correct unless the petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III

The Eighth Amendment mandates that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." "The final clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Reviewing its Eighth Amendment jurisprudence, the Court has stated that "one governing legal principle emerges as `clearly established' under § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years." Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The "`precise contours' of [the gross disproportionality principle] `are unclear,'" and "applicable only in the `exceedingly rare' and `extreme' case." Id. at 72-73, 123 S.Ct. 1166 (quoting Harmelin v. Michigan, 501 U.S. 957, 998, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)). Five Supreme Court decisions supply guidance on...

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