People v. Carmony

• Decision Date: 25 March 2005
• Docket Number: No. C038802.,C038802.
• Citation: 127 Cal.App.4th 1066,26 Cal.Rptr.3d 365
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Keith Ishmeal CARMONY, Defendant and Respondent.

26 Cal.Rptr.3d 365

127 Cal.App.4th 1066

The PEOPLE, Plaintiff and Appellant, v. Keith Ishmeal CARMONY, Defendant and Respondent.

No. C038802.

Court of Appeal, Third District.

March 25, 2005.

Certified for Partial Publication.^*

Review Denied June 29, 2005.^**

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Janet E. Neeley, Stephen G. Herndon, Michael P. Farrell, Patrick J. Whalen, and Daniel Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Appellant.

Victor S. Haltom, under appointment by the Court of Appeal, Sacramento, for Defendant and Respondent.

Jack Funk, Assistant State Public Defender, and Michael Vitiello, for California Public Defenders Association as Amici Curiae on behalf of Defendant and Respondent.

BLEASE, Acting P.J.

This case raises the question whether there is an offense so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions.

Although defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law (former Pen.Code, § 290, subd. (a)(1)(A))¹, he failed to "update" his registration with the same information within five working days of his birthday as also required by law. (Former Pen.Code, § 290, subd. (a)(1)(C).) Defendant's parole agent was aware defendant's registration information had not changed and in fact arrested defendant at the address where he was registered.

Defendant pled guilty to the charge of failing to register within five days of his birthday and admitted he had suffered three prior serious or violent felony convictions (Pen.Code, §§ 667.5, subd. (c) and 1192.7, subd. (c))² and had served a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced him under the "Three Strikes" law to a prison term of 25-years-to-life (§§ 667, subds. (b)-(i), 1170.12) plus a one-year consecutive term for the prior prison term. (§ 667.5, subd. (b).)

In an earlier opinion we held the trial court abused its discretion in refusing to strike two of defendant's three prior convictions. The Supreme Court reversed the decision and remanded the case for our consideration of the constitutional issues not reached in our prior decision.

On appeal, defendant claims the application of the Three Strikes law to the offense of failing to duplicate his registration as a sex offender violates the state and federal prohibitions against cruel and/or unusual punishment, double jeopardy and ex post facto laws, and his federal right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296, 301-302, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403, 412 (Blakely.)

It is a rare case that violates the prohibition against cruel and/or unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law.

The state and federal prohibitions against cruel and/or unusual punishment require that the sentence be proportionate to the crime. Accordingly, the current offense must bear the weight of the recidivist penalty imposed. Although the Legislature may impose increased penalties on repeat offenders, recidivism remains a factor in aggravation and may not serve as the reason for imposing increased punishment where the predicate offense serves no rational purpose of the state.

The purpose of the sex offender registration law is to require that the offender identify his present address to law enforcement authorities so that he or she is readily available for police surveillance. In this case the defendant did so one month prior to his birthday and was in fact present at his registered address when the arrest for the present violation was made. The stated purpose of the birthday registration requirement was (and still is) to "update" the existing registration information. (Former § 290, subd. (a)(1)(C).)

Here, there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant re-register within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone.

Because a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions. We shall remand the matter to the trial court for resentencing.³

FACTUAL AND PROCEDURAL BACKGROUND

In 1983, defendant was convicted of oral copulation by force or fear, with a minor under the age of 14 years (§ 288a, subd. (c)),⁴ giving rise to defendant's lifelong duty to register as a sex offender. (Former § 290, subds. (a), (b) & (e), as amended by Stats.1979, ch. 944, § 8, pp. 3254-3256.) Defendant failed to comply with the registration requirement in 1990 and again in 1997, when he was sentenced to state prison for 32 months.

Upon his release from prison, defendant reregistered as a sex offender on September 16, 1999. A week later, after moving to a new residence, he registered again on September 23, 1999, to notify authorities of his new address. His birthday is October 22d and his parole officer reminded him he was required to update his registration annually within five working days of his birthday. He received standardized forms to that effect. Nevertheless, he failed to duplicate his registration information and on November 23, 1999, his parole officer arrested him at his registered address for failing to comply with the annual registration requirement.

Defendant had recently married, maintained a residence, participated in Alcoholics Anonymous, sought job training and placement, and was employed. Just prior to the current offense, he worked as a forklift operator for Hartsell Trucking in Redding and was employed by them until November 24, 1999, the day following his arrest for the present offense.⁵

Defendant pled guilty to one count of failure to register as a sex offender, a felony (§ 290, subd. (g)(2)), and admitted three prior conviction allegations under the Three Strikes law (§§ 667, subds.(b)-(i), 1170.12) and one prior prison term allegation. (§ 667.5, subd. (b).)

The trial court denied his motion to dismiss the prior conviction allegations under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 and sentenced him to a term of 25-years-to-life under the Three Strikes law plus an additional one-year term for the prior prison term, for an aggregate term of 26 years to life.

On appeal, defendant argued that the trial court's failure to strike his prior convictions was an abuse of discretion under People v. Superior Court (Romero), supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 and that a life sentence violates the cruel and unusual punishment provisions of the state and federal Constitutions. We partially agreed with his Romero claim and reversed the judgment and remanded for resentencing.

The California Supreme Court granted the People's petition for review, reversed our ruling after concluding the trial court did not abuse its discretion, and remanded the case for further proceedings consistent with its opinion. (People v. Carmony, supra, 33 Cal.4th at p. 380, 14 Cal.Rptr.3d 880, 92 P.3d 369.) In a concurring opinion, Justice Moreno, joined by Justice Chin, cautioned that "[s]ubject to the caveat that the sentence may yet be overturned on constitutional grounds, I reluctantly concur in the majority opinion." (Id. at p. 381, 14 Cal.Rptr.3d 880, 92 P.3d 369.)

We directed counsel to brief the constitutional issues left open by the high court's opinion. We now address the dispositive issues.

DISCUSSION

I Cruel or Unusual Punishment

Defendant contends his life sentence violates the state and federal prohibitions against cruel and/or unusual punishment because it is disproportionate to his current offense.⁶

Providing scant analysis in his briefs, respondent takes the position the claim presents little need for discussion and asserts merely that, regardless of the current offense, the Legislature may rationally conclude that a person convicted of two or more serious or violent felonies should be permanently incapacitated, subject only to governmental grace to permit release on parole.⁷ If that were so, the Eighth Amendment and its California analogue would have no application to recidivist sentences. That is not the case. (See Solem v. Helm (1983) 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649 (Solem); In re Grant (1976) 18 Cal.3d 1, 132 Cal.Rptr. 430, 553 P.2d 590.) Moreover, reliance on the prior offenses as the sole basis for an increase in punishment would offend the double jeopardy clause of the United States Constitution. (Ex parte Lange (1874) 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872, 878; Witte v. United States (1995) 515 U.S. 389, 395-396, 115 S.Ct. 2199, 2203-2204, 132 L.Ed.2d 351, 361; Duran v. Castro (E.D.Cal.2002) 227 F.Supp.2d 1121, 1130.)

However, because recidivist sentences are circumscribed by the prohibition against cruel and unusual punishment, we will conclude that a sentence of 25-years-to-life constitutes cruel and unusual punishment in the circumstances of this case.

A. United States Constitution

The Eighth Amendment to the United States Constitution applies to the states via the Fourteenth Amendment (Ewing v. California (2003) 538 U.S. 11, 20, 123 S.Ct. 1179, 1185, 155 L.Ed.2d 108, 117 (Ewing) (lead opn. of O'Connor, J.); Robinson v. California (1962) 370 U.S. 660, 667, 82...