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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Appellant, v. Frank George RODRIGUEZ, Defendant and Respondent.

No. A069294.

Decided: April 12, 1996

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, John H. Deist, Gerald A. Engler, Deputy Attorneys General, San Francisco, for plaintiff and appellant. Darryl S. Fried under appointment by the Court of Appeal, Burlingame, for defendant and respondent.

The People appeal, alleging the trial court erred when it concluded that defendant's prescribed sentence under the Three Strikes Law 1 would be cruel and unusual punishment.   We agree.   We remand with instructions to resentence defendant in accordance with the Three Strikes Law.


On March 19, 1994, defendant entered a K–Mart store, concealed two cassette players and three bottles of cologne in his clothing, and left without paying.   He was arrested by store security after a brief struggle.   The recovered items totaled approximately $70 in value.

Defendant was charged with commercial burglary and petty theft with five prior theft-related convictions:  burglary on January 19, 1984;  petty theft with a prior theft conviction on January 22, 1979;  petty theft on August 11, 1975;  robbery on November 14, 1975;  and burglary on May 29, 1974.   The 1984 burglary and the 1975 robbery were also alleged as prior serious felony convictions under section 667, subdivisions (a) and (d).   Those two convictions were also alleged, along with convictions for assault with a deadly weapon (December 4, 1980) and battery causing serious bodily injury (May 1, 1990), as prior prison commitments under section 667.5, subdivision (b).

Defendant waived jury trial as to all prior conviction allegations except the 1984 burglary and the 1975 robbery which he subsequently admitted.   The jury found defendant not guilty of the burglary of K–Mart but guilty of petty theft.   The court found all remaining prior conviction allegations true.

Along with the various prior convictions detailed above, defendant has four prior convictions for disturbing the peace, one for vandalism, and one for receiving stolen property.   His probation report detailed almost continuous incarceration, probation, or parole since 1974.   He was on parole at the time he committed the new offense.   The probation report also documented defendant's long-term substance abuse problem and his claim that he was under the influence of alcohol and methamphetamine at the time of the latest offense.   Although the probation officer found no mitigating factors, he opined that defendant's case did not warrant a prison commitment.

The trial court found that sentencing defendant to a minimum term of 25 years to life under the Three Strikes Law would be cruel and unusual punishment.2  Instead, the court sentenced him to the aggravated term of three years for petty theft with a prior theft-related conviction and one year for each of his four prior prison commitments, for a total of seven years in prison.


 The People contend the trial court erred when it concluded defendant's mandatory sentence under the Three Strikes Law would be cruel and unusual.   Defendant first argues that the trial court's determination is entitled to great deference.   While sentencing decisions of the trial court are ordinarily entitled to deference on appeal, the determination that a particular punishment would be cruel and unusual is a different question.   Whether punishment is cruel and unusual is a legal question subject to the independent review of the appellate court.  (See People v. Weddle (1991) 1 Cal.App.4th 1190, 1197, 2 Cal.Rptr.2d 714;  People v. Leigh (1985) 168 Cal.App.3d 217, 223–224, 214 Cal.Rptr. 61.)

I. The Federal Constitution

The Eighth Amendment to the federal Constitution protects against the imposition of cruel and unusual punishments.   The Supreme Court has held that punishment is cruel and unusual if the method in which it is inflicted is cruel and unusual or if it is grossly disproportionate to the offense punished.   (Solem v. Helm (1983) 463 U.S. 277, 284, 103 S.Ct. 3001, 3006, 77 L.Ed.2d 637.)   Here, we are concerned only with the proportionality of defendant's sentence.

“Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.”   (Rummel v. Estelle (1980) 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382.) 3  In assessing proportionality, the United States Supreme Court has outlined three areas of comparison:  (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions.  (Solem v. Helm, supra, 463 U.S. at pp. 290–292, 103 S.Ct. at pp. 3309–3011.)   Comparison (1) confines itself strictly to an analysis of the specific case and its punishment, an internal analysis.   Comparisons (2) and (3) expand the analysis by judging the specific sentence by standards of other offenses and other jurisdictions, an external analysis.4

We recognize that Justice Scalia's lead opinion in Harmelin v. Michigan (1991) 501 U.S. 957, 965, 111 S.Ct. 2680, 2686, 115 L.Ed.2d 836 called for the overruling of Solem v. Helm.   He concluded therein that the Eighth Amendment does not include a guarantee of proportionality, except in the context of death penalty cases, and that the proscription against cruel and unusual punishment applies only to the method of punishment.  (Id. at pp. 976, 994, 111 S.Ct. at pp. 2691–2692, 2701.)   However, Justice Scalia was joined only by Chief Justice Rehnquist on this point.

In his concurring opinion in Harmelin, Justice Kennedy concluded that the Eighth Amendment does not guarantee strict proportionality.   He noted four principles that augur against judicial review of sentences to insure proportionality:  (1) the prescription of punishment for specific crimes is an inherently legislative function, (2) a variety of penological schemes are acceptable under the Eighth Amendment, (3) divergences in penological schemes and in sentence length is inevitable and even beneficial under a federal structure, and (4) proportionality review should be guided by objective factors and thus is better suited to comparisons of methods of punishment rather than terms of years.  (See 501 U.S. at pp. 998–1001, 111 S.Ct. at pp. 2703–2705 (conc. opn. of Kennedy, J.).)   Justice Kennedy went on to conclude that only a narrow proportionality guarantee exists in noncapital cases to prevent “extreme sentences that are ‘grossly disproportionate’ to the crime.”  (Id. at pp. 997, 1001, 111 S.Ct. at pp. 2702–2703, 2705.)   Consequently, external comparisons of sentences are unnecessary unless, following an internal comparison, a finding of gross disproportionality between the crime and the sentence is made.  (Id. at p. 1005, 111 S.Ct. at p. 2707.)

 It is not clear whether federal external proportionality review contemplates a comparison of the penalty with the crime in the abstract, or with the facts of the particular crime under consideration and the circumstances of the particular defendant.   In either event, given the court's ruling in Rummel v. Estelle, supra, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, defendant's sentence under the Three Strikes scheme would be constitutional.

In Rummel v. Estelle, the defendant was sentenced under a recidivist statute to life in prison with the possibility of parole following his third theft-related felony conviction.   The total loss from Rummel's three convictions was less than $230.  (445 U.S. at pp. 265–266, 280–281, 100 S.Ct. at pp. 1134–1135, 1142–1143.)   In concluding Rummel's sentence was not cruel and unusual, the court looked to the nature of recidivist statutes:  “The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries.   Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.   This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.   Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.”  (Id. at pp. 284–285, 100 S.Ct. at pp. 1144–1145.)

Here, defendant was convicted of petty theft of property valued at less than $70.   However, he was not punished merely for petty theft but for his lengthy criminal record.   His five prior theft-related convictions elevated the petty theft conviction to a felony.   More importantly, his prior robbery and burglary convictions brought him within the Three Strikes sentencing scheme.   Thus, unlike Rummel, defendant's prior convictions were serious felonies.5  Additionally, defendant, at age 44, had previously been committed to prison four times and had been incarcerated or on some form of conditional release from custody for the past 20 years.   A legislative judgment that such a defendant should spend at least 25 years in prison with the possibility of parole is not grossly disproportionate.

Finally, in Harmelin v. Michigan, supra, the court upheld the defendant's sentence of life without possibility of parole for a single offense of possessing more than 650 grams of cocaine.  (See 501 U.S. at p. 1009, 111 S.Ct. at p. 2709.)   Such a substantial sentence in a nonrecidivist context only corroborates our conclusion that defendant's sentence here, following two decades of criminal conduct, is not grossly disproportionate.

II. The State Constitution

 Article I, section 17 of the state Constitution protects against the imposition of cruel or unusual punishment.6  In order to violate the Constitution, the punishment must be “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921, fn. omitted.)   Ordinarily, the defendant bears the considerable burden of demonstrating this disproportionality.   (People v. Weddle, supra, 1 Cal.App.4th at pp. 1196–1197, 2 Cal.Rptr.2d 714.)  “Findings of disproportionality have occurred with exquisite rarity in the case law.”  (Id. at p. 1196, 2 Cal.Rptr.2d 714.)

 The courts of California have outlined external proportionality assessments identical to comparisons (2) and (3) in the federal analysis above.  (In re Lynch, supra, 8 Cal.3d at pp. 426–427, 105 Cal.Rptr. 217, 503 P.2d 921.) 7  In comparing his sentence to those imposed on other criminals in California, defendant argues that his seven-year sentence was already fourteen times the maximum six-month sentence for petty theft.   By this argument, defendant ignores the fact that his sentence was not merely for misdemeanor petty theft, but rather for a lengthy record of recidivism culminating in a felony theft conviction.   Defendant's sentence under the Three Strikes Law would be proportional to those received by all defendants with two prior serious felony convictions.   To that extent, the Three Strikes Law is inherently proportional.

 In comparing his potential sentence under the Three Strikes Law with those received by criminals in other jurisdictions, defendant acknowledges that recidivist statutes are now commonplace throughout the country.   These statutes reflect the public's increasing frustration with crime in general and repeat offenders in particular.   While defendant's California sentence might be greater than under the recidivist statutes of some jurisdictions, defendant concedes it would be shorter than in other jurisdictions.   Defendant's potential sentence under the Three Strikes Law is neither cruel nor unusual when compared to sentencing schemes throughout the country.

 As to internal proportionality, California courts call for a comparison of the penalty with “[t]he nature of the offense and/or the offender with particular regard to the degree of danger both present to society․”  (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529, 212 Cal.Rptr. 605.)   “First, the crime itself must be reviewed, both in the abstract and in view of the totality of the circumstances surrounding its commission, ‘including such factors as its motive, the way it was committed, the extent of defendant's involvement, and the consequences of his acts ․,’ to determine whether a particular punishment is grossly disproportionate to the crime for which it is inflicted.  [Citations.]  Secondly, the court must consider ‘the nature of the offender’ and inquire ‘whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.’   [Citations.]”  (People v. Weddle, supra, 1 Cal.App.4th at pp. 1197–1198, 2 Cal.Rptr.2d 714, fns. omitted.)   Thus, the California formulation explicitly contemplates consideration of the facts of the particular crime and the particular defendant's circumstances.

 Once again, the crime here is not petty theft but petty theft with five prior theft-related convictions, two of which were serious felonies.   Defendant's criminal history is lengthy, including four prison commitments, two for violent felonies.   His poor performance on probation and parole is well documented.   While defendant's substance abuse problem is also well documented, he has not taken the steps necessary to remediate that problem during his long involvement with the criminal justice system.   The penalty imposed here is a lengthy one.   It is one that the citizens of California have determined should be imposed under these circumstances.   Under these facts, we cannot say that it is so severe as to violate the Constitution.


The judgment is reversed, and the matter is remanded for resentencing consistent with Penal Code section 667, subdivision (e)(2).


1.   Penal Code section 667, subdivisions (b) to (i).   All further statutory references are to the Penal Code.

2.   The court erroneously believed that defendant could not be sentenced under the Three Strikes scheme because the new conviction for petty theft was not a serious felony.   When the prosecutor attempted to correct this misunderstanding, the court indicated such punishment would also be cruel and unusual and that it was basing its ruling on both grounds:  “THE COURT:  Well, to the extent that it does not, I think that the intent and the purpose of it all was to increase the punishment in accordance with Three Strikes for people who were currently convicted of a prior—of a serious felony, and that's my general interpretation of it, and if that fails, as I indicated, I think it's cruel and unusual, because it's not in the same category as what are listed as serious felonies․”

3.   Indeed, only once has the United States Supreme Court overturned on Eighth Amendment grounds a sentence consisting only of a term of years.  (Solem v. Helm, supra, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637.)

4.   In People v. Weddle, supra, these analyses were described as intracase and intercase, rather than internal and external.  (1 Cal.App.4th at pp. 1194–1195, fn. 2, 2 Cal.Rptr.2d 714.)

5.   Rummel's prior convictions occurred in Texas, but they would not have been serious felonies in California under section 667, subdivision (d).

6.   The use of the disjunctive “or” in the state Constitution, rather than the conjunctive “and” as used in the federal Constitution, is not a material difference for the purpose of our analysis here.

7.   For the reasons outlined by Justice Kennedy in his concurrence in Harmelin v. Michigan, supra, 501 U.S. at pages 998–1001, 111 S.Ct. at pages 2703–2705, we agree with the court's conclusion in People v. Weddle, supra, 1 Cal.App.4th at page 1196, 2 Cal.Rptr.2d 714, that external proportionality is not guaranteed by the state Constitution.   As the Weddle court pointed out, external proportionality review has been abandoned by the state Supreme Court in the context of death penalty cases.   Logically, it cannot survive in the noncapital context.  (Id. at p. 1196, fn. 6, 2 Cal.Rptr.2d 714;  see People v. Cox (1991) 53 Cal.3d 618, 690, 280 Cal.Rptr. 692, 809 P.2d 351;  People v. Kaurish (1990) 52 Cal.3d 648, 716, 276 Cal.Rptr. 788, 802 P.2d 278;  People v. Lang (1989) 49 Cal.3d 991, 1043, 264 Cal.Rptr. 386, 782 P.2d 627;  People v. Poggi (1988) 45 Cal.3d 306, 348, 246 Cal.Rptr. 886, 753 P.2d 1082.)

CORRIGAN, Acting Presiding Justice.

PARRILLI, J., and McGUINESS,** Judge, concur.