S.C. to Review Scope of Discretion Under Three Strikes Law

Thursday, May 22, 2003

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S.C. to Review Scope of Discretion Under Three Strikes Law

By KENNETH OFGANG, Staff Writer/Appellate Courts

The California Supreme Court has agreed to decide whether a trial judge’s decision to sentence a defendant under the Three Strikes Law, rather than to dismiss one or more “strikes” and impose a lesser sentence, may be overturned on appeal as an abuse of discretion.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Marvin Baxter, and Janice Rogers Brown voted at yesterday’s conference to grant the attorney general’s petition for review of People v. Carmony, a Feb. 28 decision of the Third District Court of Appeal.

Justice Coleman Blease, in his unpublished opinion for the Court of Appeal panel, said a three-strikes sentence may be overturned if it is “arbitrary, capricious or patently absurd.” That was the case, he wrote for a divided panel, with Keith Ishmael Carmony.

Carmony received a 26-year-to-life sentence, including a one-year prior-prison-term enhancement for failing to update his sex offender registration. Although he had complied with the registration requirement in September 1999 by providing Redding police with his new address, he was convicted of violating the law a month later by failing to update his registration within five working days of his birthday.

Many Priors

He admitted three prior convictions for serious or violent felonies, including a sexual assault on his girlfriend’s 9-year-old daughter in 1983 and two assaults on women he was dating 10 years later.

He also had convictions for burglary, recidivist petty theft, two incidents of drunk driving, trespass, petty theft, two prior failures to register as a sex offender and a number of parole violations.

But Blease, while acknowledging the seriousness of this history, said the trial judge should not have sentenced Carmony as a third-strike offender for a mere failure to confirm information that had already been provided and remained accurate.

Blease cited the First District’s opinion in People v. Cluff (2001) 87 Cal.App.4th 991, in which the panel ordered resentencing of a defendant who received a third-strike sentence for a similar failure to register. The judge who sentenced Carmony had considered Cluff, but said that Carmony was in a different position because his criminal record was more serious, his prospects for rehabilitation were worse, and, unlike in Cluff, it was clear he knew he was supposed to update his registration.

But all of those factors, Blease said, pale in comparison to the technical nature of the violation.

Carmony, he acknowledged, falls within “the letter” of the Three-Strikes Law.

Justice’s Reasoning

But where the new crime is one that “bears little indication that defendant has recidivist tendencies to commit other offenses, violent or otherwise,’ he wrote, the case falls outside the spirit of the law and a judge must exercise the discretion to impose no more than a second-strike sentence, which in Carmony’s case would be seven years in prison.

“[T]he instant case,” he wrote, “presents the rare situation where, based on the nature and circumstances of the present offense, it must be concluded that defendant falls outside the spirit of the three strikes law at least with respect to a sentence of 25 years to life.”

As enacted, the Three-Strikes Law only granted judges discretion to dismiss prior-conviction allegations and impose lesser sentences upon motion of the prosecution. The California Supreme Court, however, ruled in People v. Superior Court (Romero) (1996) 13 Cal. 4th 497 that the separation-of-powers clause of the state Constitution gives judges the power to dismiss “strikes” on their own motion.

New Attack

If the state high court agrees with Blease, it will give opponents of the harsh sentences handed down under the law a new line of attack after a prior argument—that the sentence constitutes cruel and unusual punishment under the federal Constitution when the new crime is a relatively minor one such as petty theft—was shot down by a 5-4 ruling of the U.S. Supreme Court.

That ruling was handed down in March, about a week after the Third District handed down its Carmony decision.

Blease’s opinion was joined by Justice George Nicholson.

Justice Daniel Kolkey, dissenting, argued that it was error for the court to “exempt a particular type of felony from the Three Strikes Law.” If a trial judge’s decision to deny Romero relief is reversible, Kolkey said, that remedy must be limited to cases in which the trial judge’s decision is wholly irrational given the defendant’s prior record, background, character and prospects for rehabilitation, as well as the nature and seriousness of the current offense.

Applying that standard, he said, he would not reverse as to Carmony because he was not prepared to “find that no reasonable person could deem defendant to fall wholly within the letter and spirit of the Three Strikes law, despite his lengthy and sometimes violent criminal record of 14 crimes and 10 parole violations and a present felony that is his third violation of the registration requirements.”

In other conference action, the justices:

•Agreed to decide whether a defendant may be convicted of the misdemeanor offense of furnishing an alcoholic beverage to a person under age 21 who proximately caused great bodily injury, set forth in Business and Professions Code Sec. 25658(c), without proof the defendant knew the person to whom he or she furnished alcohol was under age 21. The Third District held on Feb. 28 in In re Jennings, 106 Cal.App.4th 869, that no such proof was required.

•Denied a petition by the parent company of the Los Angeles Times for review of an unpublished Feb. 6 ruling by this district’s Div. One. That panel ordered transfer of a California Public Records Act suit against the Commission on Peace Officer Standards and Training, dealing with records of police misconduct, to Sacramento County, where the commission is headquartered.

•Denied review of a Third District ruling, set forth in an unpublished Feb. 4 opinion, that electronic vending machines used to dispense scratch-off lottery tickets are not illegal slot machines.

•Ordered publication of the June 2002 decision of this district’s Div.One in Kong v. City of Hawaiian Gardens Redevelopment Agency. The court allowed the owner of a Hawaiian Gardens donut shop to amend his inverse condemnation complaint to allege that the agency’s acquisition of the premises on which he leased space for his shop; its transfer of the premises to controversial landlord, developer, and local political operative Dr. Irving Moskowitz; and the termination of the plaintiff’s lease constituted a taking.