IN RE: WILLIE CLIFFORD COLEY on Habeas Corpus. (2010)

C. The Carmony Decision

Like petitioner, Carmony was convicted of failing to update his sex offender registration within five days of his birthday.   Carmony had three prior “strike” offenses - two for assault with a deadly weapon ³ and one for oral copulation by force or fear with a minor under the age of 14 years.   (Carmony, supra, 127 Cal.App.4th at pp. 1073, 1080.)

Citing a dissenting opinion in Ewing, Carmony indicates, “ ‘in cases involving recidivist offenders, we must focus upon “the [offense] that triggers the life sentence,” with recidivism playing a “relevant,” but not necessarily determinative, role’ [Citation.]”  (Carmony, supra, 127 Cal.App.4th at p. 1077.)  Carmony then states, “Applying these principles, we find, as did the court in Solem [v. Helm, supra, 463 U.S. 277], that this is a rare case, in which the harshness of the recidivist penalty is grossly disproportionate to the gravity of the offense.   Indeed, because [Carmony's] offense was an entirely passive, harmless, and technical violation of the registration law, it was less serious than the offense ․ committed by the defendant in Solem.”  (Carmony, supra, 127 Cal.App.4th at p. 1077.)

We respectfully disagree with this approach because:  (1) the dissenting opinion in Ewing should have no persuasive impact on the Eighth Amendment analysis;  (2) as recognized by the Ewing plurality, Solem is limited to the unique situation where a life sentence without the possibility of parole is imposed for a nonviolent felony;  and (3) a sex offender's failure to update registration is neither “technical” nor “harmless.”

First, we choose, as we think we must, to follow the plurality opinion in Ewing rather than a dissenting opinion.  (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352;  Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 915;  see also Estate of Pittman (1998) 63 Cal.App.4th 290, 300.)   Thus, to the extent Carmony references the dissenting opinion as justification to lessen the significance of recidivism in an Eighth Amendment analysis, we decline to do so.

Second, the holding of Solem has been limited by the United States Supreme Court.   In Solem, the defendant was convicted of “uttering a ‘no-account check’ for $100.”  (Solem v. Helm, supra, 463 U.S. at p. 281.)   Due to the defendant's prior convictions, he was sentenced to life in prison without the possibility of parole.   After engaging in an analysis to determine whether the punishment was grossly disproportionate to the crime, the high court concluded the sentence amounted to cruel and unusual punishment.  (Id. at pp. 296-303.)

The Supreme Court revisited Solem when deciding Ewing :  “We specifically noted [in Solem ] the contrast between that sentence and the sentence in Rummel, pursuant to which the defendant was eligible for parole.  [Citations.]  Indeed, we explicitly declined to overrule Rummel ․  [Citations.]”  (Ewing v. California, supra, 538 U.S. at p. 22, italics added.)   Thus, due to the fact that petitioner's sentence allows for the possibility of parole, the applicable Eighth Amendment analysis is derived from Rummel and Ewing, not Solem.

Finally, we respectfully disagree with Carmony's characterization of the offense as “technical,” “harmless” and “no worse than a breach of an overtime parking ordinance.”  (People v. Carmony, supra, 127 Cal.App.4th at pp. 1077, 1079.)   Such an assessment of the gravity of an offense for purposes of an Eighth Amendment analysis, does not, as is required by Ewing, place any weight on a defendant's recidivism.  (Ewing v. California, supra, 538 U.S. at p. 29.)

Although Carmony addresses the defendant's recidivism, we respectfully disagree with the framework of the analysis.  Carmony recognizes that recidivism is a consideration in an Eighth Amendment analysis but it does not use recidivism in determining the gravity of the offense.   In fact, Carmony minimizes the importance of recidivism by acknowledging the Legislature may impose stiffer penalties for recidivist offenders but “because the penalty is imposed for the current offense, the focus must be on the seriousness of that offense.  [Citation.]”  (Carmony, supra, 127 Cal.App.4th at p. 1079.)   In support of this proposition, Carmony cites Witte v. United States (1995) 515 U.S. 389, 402-403.  (Ibid.)

The issue in Witte was whether the double jeopardy clause prohibits a defendant from being convicted of a criminal offense where the conduct underlying that offense has been used in a prior case to enhance the defendant's sentence in the prior case.   The Supreme Court held the double jeopardy clause does not preclude the second prosecution because in circumstances “where the [L]egislature has authorized ․ a particular punishment range for a given crime, the resulting sentence within that range constitutes punishment only for the offense of conviction for purposes of the double jeopardy inquiry.”  (Witte v. United States, supra, 515 U.S. at p. 403.)

We respectfully disagree with the implementation of Witte in an Eighth Amendment analysis and the notion that, in assessing the propriety of punishment under the Eighth Amendment, an appellate tribunal must focus on the seriousness of the current offense.   Indeed, Ewing expressly cautioned against this approach when it noted that the failure to include recidivism on the scale when weighing the gravity of the offense, “would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions.   In imposing a three strikes sentence, the State's interest is not merely punishing the offense of the conviction, or the ‘triggering’ offense:  ‘It is in addition the interest ․ in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’  [Citations.]”  (Ewing v. California, supra, 538 U.S. at p. 29.)   In light of Carmony's prior convictions, particularly the convictions involving the death of a fetus and using force or fear to orally copulate a minor under the age of 14 years, and the compelling legislative intent to track sex offenders and punish recidivist offenders, the gravity of his offense far exceeds that of a parking violation.

IV. DISPOSITION

The order to show cause is discharged and the petition for writ of habeas corpus is denied.

KUMAR, J.*

We concur:

TURNER, P. J.

KRIEGLER, J.

FOOTNOTES

FN3. Carmony's first conviction was the result of him punching and kicking his pregnant girlfriend, causing a miscarriage.   His second conviction was for punching and kicking a different girlfriend as well as cutting her hand with a knife.  (People v. Carmony, supra, 127 Cal.App.4th 1066, 1080, fn. 9.).  FN3. Carmony's first conviction was the result of him punching and kicking his pregnant girlfriend, causing a miscarriage.   His second conviction was for punching and kicking a different girlfriend as well as cutting her hand with a knife.  (People v. Carmony, supra, 127 Cal.App.4th 1066, 1080, fn. 9.)

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.