Andrade v. Att. Gen. of the State of CA.

• Decision Date: 02 November 2001
• Docket Number: No. 99-55691,PETITIONER-APPELLANT,RESPONDENTS-APPELLEES,99-55691
• Parties: (9th Cir. 2001) LEANDRO ANDRADE,, v. ATTORNEY GENERAL OF THE STATE OF CALIFORNIA; ERNEST B. ROE, WARDEN,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 743

270 F.3d 743 (9th Cir. 2001)

LEANDRO ANDRADE, PETITIONER-APPELLANT, v. ATTORNEY GENERAL OF THE STATE OF CALIFORNIA; ERNEST B. ROE, WARDEN, RESPONDENTS-APPELLEES.

No. 99-55691

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 25, 2001

Filed November 2, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Erwin Chemerinsky, University of Southern California Law School, Los Angeles, California, for the petitioner-appellant.

Robert M. Foster, Deputy Attorney General, and Douglas P. Danzig, Deputy Attorney General, San Diego, California, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CV 98-6776-CAS (SH)

Before: Schroeder, Chief Judge, and Sneed and Paez, Circuit Judges.

Opinion by Judge Paez; Concurring and Dissenting Opinion by Judge Sneed

PAEZ, Circuit Judge:

Appellant Leandro Andrade was convicted in the Superior Court of California of two counts of petty theft for shoplifting a total of nine videotapes from two K-Mart stores. California generally treats such offenses as misdemeanors, each punishable by up to six months in county jail and up to a $1,000 fine. However, because Andrade had been convicted of several prior offenses -- all non-violent -- his petty thefts were first enhanced to felonies under California Penal Code § 666, and then enhanced again to third and fourth strikes under California's Three Strikes and You're Out Law, California Penal Code § § 667 and 1170.12 ("the Three Strikes law"). As a result, Andrade, a non-violent recidivist who twice shoplifted merchandise worth a total of $153.54, received a life sentence in prison with no possibility of parole for 50 years.

In this appeal from the denial of his habeas petition under 28 U.S.C. § 2254, Andrade argues that his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. Four justices of the United States Supreme Court have agreed that the "unique quirk " in California's Three Strikes law that permits misdemeanor conduct to be punished with severe indeterminate sentences raises a substantial Eighth Amendment question. Riggs v. California, 525 U.S. 1114, 119 S. Ct. 890 (1999) (memorandum opinion by Justice Stevens, joined by Justices Souter and Ginsburg, respecting the denial of the petition for writ of certiorari).¹

We hold that the California Court of Appeal unreasonably applied clearly established United States Supreme Court precedent when it held, on Andrade's direct appeal, that his sentence did not violate the Eighth Amendment's prohibition against cruel and unusual punishment. Our decision does not invalidate California's Three Strikes law generally. Rather, we conclude that it is unconstitutional only as applied to Andrade because it imposes a sentence grossly disproportionate to his crimes.

I. BACKGROUND

A. California's Three Strikes Law

California's Three Strikes law consists of a pair of substantively identical statutes both enacted in 1994, one by the California Legislature, Stats.1994, ch. 12, § 1, adding California Penal Code § 667(b)-(i), and one by a ballot initiative, Proposition 184, § 1, as approved by voters, Gen. Elec. (Nov. 8, 1994), adding California Penal Code § 1170.12. See generally In re Cervera, 16 P.3d 176, 177 (Cal. 2001).

The purpose of the law is to impose longer terms of imprisonment on defendants with prior qualifying felony convictions or "strikes." Id. at 179. Under the law, only "serious" or "violent" felonies, as defined in California Penal Code § 1192.7(c) and § 667.5(c) respectively, qualify as prior strikes. Cal. Penal Code § § 667(d)(1), 1170.12(b)(1). The "triggering" (i.e., principal) offense, however, may be any felony under California law. Cervera, 16 P.3d at 177 ("the Three Strikes law governs when a defendant is convicted of a felony or `strike' of any kind") (emphasis added). This includes a so-called "wobbler" offense (which can be either a misdemeanor or felony) when charged and sentenced as a felony. People v. Terry, 54 Cal. Rptr. 2d 769, 770-71 (Ct. App. 1996) (holding that the wobbler offense of petty theft with a prior, when charged and sentenced as a felony, may count as a third strike).

Under the "second-strike" provision of the Three Strikes law, when a defendant with one prior strike is convicted of any felony, the sentencing court must impose a sentence twice as long as the sentence the defendant would have otherwise received. Cal. Penal Code § § 667(e)(1), 1170.12(c)(1); Cervera, 16 P.3d at 177. When a defendant with two prior strikes is convicted of any felony, the "third-strike" provision mandates a sentence of at least 25 years to life (i.e., an indeterminate life sentence with eligibility for parole after serving no fewer than 25 years). Cal. Penal Code § § 667(e)(2)(A), 1170.12(c)(2)(A).

In addition to the fact that the triggering felony need not be "serious" or "violent," several other features of California's Three Strikes law combine to make it particularly severe. First, a defendant may be considered to have two prior strikes even though he was convicted of both qualifying offenses in a single judicial proceeding. People v. Askey , 56 Cal. Rptr. 2d 782, 785 (Ct. App. 1996). Second, prior strikes need not be violent offenses as long as they qualify as "serious" (e.g., a residential burglary where the burglar was unarmed and residents were not home would be considered a prior strike). Cal. Penal Code § § 1192.7(c)(18), 460(a). Third,"serious" or "violent" felony convictions imposed prior to the law's enactment in 1994 can be charged as strikes, People v. Kinsey, 47 Cal. Rptr. 2d 769, 775 (Ct. App. 1995), as may a defendant's equivalent convictions received in another jurisdiction, California Penal Code § § 667(d)(2), 1170.12(b)(2), and certain convictions a defendant received as a juvenile, California Penal Code § § 667(d)(3), 1170.12(b)(3). Fourth, there is no "washout" period after which prior qualifying convictions will no longer be counted as strikes.² People v. Martinez, 84 Cal. Rptr. 2d 638, 646 & n.9 (Ct. App. 1999) (citing Cal. Penal Code § 1170.12(a)(3)). Fifth, defendants with prior strikes who are convicted of current multiple felonies committed on different occasions must serve consecutive sentences. Cal. Penal Code § § 667(c)(6), 1170.12(a)(6); People v. Ingram, 48 Cal. Rptr. 2d 256, 264 (Ct. App. 1995) ("Since each felony count of which defendant currently stands convicted arises from separate residential burglaries, the mandatory minimum term of 25 years to life must be imposed consecutively for each count, for a minimum . . . term of 50 years."), disapproved on other grounds by People v. Dotson, 941 P.2d 56, 63 (Cal. 1997). Finally, a defendant sentenced to an indeterminate life sentence will not be eligible for parole until he has served his entire mandatory minimum term. Cervera, 16 P.3d at 181 (holding that a third-strike defendant's mandatory minimum term of 25 years may not be reduced with good-time credits).

B. Facts And Procedural History

According to the probation officer's presentence report, Andrade is a longtime heroin addict with a history of convictions for non-violent offenses. The report indicates that Andrade was convicted in 1982 of a misdemeanor theft offense, for which he served six days in county jail and received twelve months of probation.³ In 1983, Andrade pled guilty in a consolidated proceeding to three counts of first degree burglary (residential burglary) in violation of California Penal Code § 459.⁴ In 1988 Andrade was convicted in federal court of "transportation of marijuana, " a felony. In 1990, Andrade was convicted in state court for a petty theft offense. Later that year, he was again convicted in federal court of another felony charge of "transportation of marijuana." Finally, in 1991, Andrade received a parole violation for escape from federal prison.⁵ All told, Andrade had been convicted of five felonies and two misdemeanors -- all non-violent -- prior to his current convictions.

On November 4, 1995, Andrade exited a K-Mart store with five videotapes, worth $84.70, stuffed inside his pants. Two weeks later, he shoplifted another four videotapes, worth $68.84, from a different K-Mart store. In both instances, store personnel stopped Andrade as he exited the store and recovered the merchandise.

California classifies both of these offenses as petty theft, a misdemeanor punishable by up to six months in county jail and up to a $1,000 fine. Cal. Penal Code § 490; see also Cal. Penal Code § 487 (defining grand theft as theft over $400). Because Andrade had a previous misdemeanor theft conviction in 1990, however, his shoplifting offenses were charged as two counts of petty theft with a prior, pursuant to California Penal Code § 666. Petty theft with a prior is a so-called "wobbler" offense, 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. Cal. Penal Code § 666 ("punishable by imprisonment in the county jail not exceeding one year, or in the state prison"); Cal. Penal Code § 18 (specifying sentences of "16 months, or two or three years" for any crime "punishable by imprisonment in a state prison" where no other penalty is specified by law); Terry, 54 Cal. Rptr. 2d at 770-71. Prosecutors have discretion to charge petty theft with a prior as either a misdemeanor or a felony, and the trial court has reviewable discretion to reduce this charge to a misdemeanor at the time of sentencing. People v. Superior Court (Alvarez), 928 P.2d 1171 (Cal. 1997) (holding that a trial court's discretion under Cal. Penal Code § 17(b) to reduce a "wobbler" offense is not eliminated by the Three Strikes law but is reviewable).

In Andrade's case, the prosecutor elected to charge his two petty thefts with a prior as felonies, thereby implicating...