Filed 8/30/12


      IN THE SUPREME COURT OF CALIFORNIA


In re WILLIE CLIFFORD COLEY         )                              S185303
                                    )
              on Habeas Corpus.     )                     Ct. App. 2/5 No. B224400
____________________________________)


        California‘s ―Three Strikes‖ law applies to a criminal defendant who is
currently charged and convicted of a felony and who has previously been
convicted of one or more serious or violent felonies. One aspect of the law that
has proven controversial is that the lengthy punishment prescribed by the law may
be imposed not only when such a defendant is convicted of another serious or
violent felony but also when he or she is convicted of any offense that is
categorized under California law as a felony. This is so even when the current, so-
called triggering, offense is nonviolent and may be widely perceived as relatively
minor. (Pen. Code, §§ 667, subd. (c), 1170.12, subd. (a); see, e.g., People v.
Carmony (2004) 33 Cal.4th 367, 381 (conc. opn. of Moreno, J., joined by Chin, J.)
(Carmony I); Vitiello, California’s Three Strikes and We’re Out: Was Judicial
Activism California’s Best Hope? (2004) 37 U.C. Davis L.Rev. 1025, 1026
[―Widely reported Three Strikes cases have involved trivial offenses — such as
the theft of a bicycle, a slice of pizza, cookies or a bottle of vitamins — that have
resulted in severe sentences‖].)
        Shortly after the Three Strikes law was enacted, a number of federal
appellate decisions held that the 25-year-to-life minimum sentence mandated by
the law for a third-strike felony conviction constituted cruel and unusual
punishment in violation of the Eighth Amendment of the federal Constitution



                                          1
when imposed upon a defendant whose current felony offense was a
comparatively minor, nonviolent offense. (See, e.g., Andrade v. Attorney General
of State of California (9th Cir. 2001) 270 F.3d 743; Brown v. Mayle (9th Cir.
2002) 283 F.3d 1019.) The United States Supreme Court granted certiorari in
each of those cases,1 however, and in a related case, Ewing v. California (2003)
538 U.S. 11 (Ewing), the federal high court addressed a cruel and unusual
punishment challenge to the imposition of a sentence of 25 years to life under
California‘s Three Strikes law upon a defendant whose triggering offense was the
nonviolent theft of three golf clubs worth a total of $1,200. In Ewing, the high
court concluded, in a five-to-four decision, that, in light of the antirecidivist
purpose of the Three Strikes law and the defendant‘s criminal history, the sentence
imposed upon the defendant in that case was not unconstitutional. The lead
opinion in Ewing (authored by Justice O‘Connor), however, did not eliminate the
possibility that some triggering offense, although designated a felony under
California law, might be so minor and unrelated to the goal of deterring recidivism
that a 25-year-to-life sentence would be ―grossly disproportionate‖ and constitute
cruel and unusual punishment under the Eighth Amendment, even when imposed
upon a defendant with a serious criminal record.
       Subsequently, in People v. Carmony (2005) 127 Cal.App.4th 1066
(Carmony II), a panel of the California Court of Appeal, Third Appellate District,
concluded in a two-to-one decision that a 25-year-to-life sentence under the Three
Strikes law constituted cruel and/or unusual punishment, in violation of the federal
and state Constitutions, as applied to a defendant whose triggering offense was the

1      See Lockyer v. Andrade (2002) 535 U.S. 969, certiorari granted, reversed
(2003) 538 U.S. 63; Mayle v. Brown (2003) 538 U.S. 901, certiorari granted,
appellate court judgment vacated, remanded.




                                           2
failure to annually update his sex offender registration within five working days of
his birthday. The defendant in Carmony II had properly registered as a sex
offender at his current address one month before his birthday, had continued to
reside at the same address throughout the relevant period, had remained in contact
with his parole agent, and was arrested at that same address by his parole agent
one month after his birthday. Observing that ―because defendant did not evade or
intend to evade law enforcement officers, his offense was the most technical and
harmless violation of the registration law we have seen‖ (127 Cal.App.4th at
p. 1078), the majority opinion in Carmony II concluded that, notwithstanding the
defendant‘s record of serious prior offenses, the imposition of a 25-year-to-life
sentence was grossly disproportionate to the gravity of the defendant‘s offenses
and violated the constitutional prohibition of cruel and/or unusual punishment.
Thereafter, a three-judge panel of the United States Court of Appeals for the Ninth
Circuit, addressing a cruel and unusual punishment claim in a factual setting very
similar to that presented in Carmony II, reached the same conclusion as the
California appellate court in Carmony II. (Gonzalez v. Duncan (9th Cir. 2008)
551 F.3d 875.)
       In the present habeas corpus proceeding, a panel of the Court of Appeal,
Second Appellate District, Division Five, considering the constitutionality of a 25-
year-to-life sentence imposed upon a defendant who also was convicted of failing
to update his sex offender registration within five working days of his birthday,
expressly disagreed with the analysis and conclusion of the appellate court in
Carmony II and held that the punishment was constitutionally permissible. In
light of the conflict in the two Court of Appeal decisions, we granted review.
       We agree with the Court of Appeal in the present case that imposition of a
25-year-to-life sentence upon petitioner in this matter does not constitute cruel and
unusual punishment in violation of the federal Constitution, but, for the reasons

                                          3
discussed more fully hereafter, we conclude that we need not and should not rest
our holding upon a determination that the Court of Appeal opinion in Carmony II
was wrongly decided. The conduct of petitioner in this case, as found by the trial
court, is clearly distinguishable in a significant respect from the conduct of the
defendant in Carmony II. Unlike the defendant in Carmony II, who had very
recently registered at his current address and who the Court of Appeal found ―did
not evade or intend to evade law enforcement officers‖ (Carmony II, supra, 127
Cal.App.4th at p. 1078), the trial court in this case, in refusing to strike any of
petitioner‘s prior convictions and in imposing a 25-year-to-life sentence under the
Three Strikes law, found that petitioner‘s triggering offense was not simply a
minor or technical oversight by a defendant who had made a good faith effort to
comply with the sex offender registration law. Rather, the court found that
petitioner had never registered as a sex offender at his current address and had
knowingly and intentionally refused to comply with his obligations under the sex
offender registration law.
       Petitioner‘s conduct, as found by the trial court, demonstrated that, despite
the significant punishment petitioner had incurred as a result of his prior serious
offenses, he was still intentionally unwilling to comply with an important legal
obligation, and thus his triggering criminal conduct bore both a rational and
substantial relationship to the antirecidivist purposes of the Three Strikes law.
Given that relationship and the extremely serious and heinous nature of
petitioner‘s prior criminal history, we conclude that, under Ewing, supra,
538 U.S. 11, the imposition of a 25-year-to-life sentence does not constitute cruel
and unusual punishment under the circumstances of this case. In light of the facts
underlying the offense in this case as found by the trial court, we need not decide
whether the Eighth Amendment prohibits the imposition of a 25-year-to-life
sentence under the Three Strikes law in a factual situation like that in Carmony II,

                                           4
in which a defendant had properly registered his current residential address and
demonstrated a good faith attempt to comply with the sex offender registration law
but due to a negligent oversight had failed to update his registration within five
working days of his birthday.
                          I. Facts and Proceedings Below
        Prior to the commission of his latest offense, petitioner Willie Clifford
Coley had a lengthy and very significant criminal history. In 1978, when he was
18 or 19 years old, petitioner was convicted of burglary in Florida and was
sentenced to 15 years in state prison. He was released from prison in Florida in
1986, and thereafter moved to California. In 1988, petitioner was convicted in
California of three serious and violent felony offenses — voluntary manslaughter
(Pen. Code, § 192),2 robbery (§ 211), and acting in concert to aid and abet the
commission of rape (§ 264.1) — and was sentenced to 20 years in state prison.3

2       Unless otherwise indicated, further statutory references are to the Penal
Code.
3       In its opinion below, the Court of Appeal described the circumstances
relating to petitioner‘s 1988 offenses: ―The facts underlying petitioner‘s
manslaughter, rape, and robbery convictions bear mentioning as they are
particularly callous. The manslaughter case arose out of a dispute between
petitioner‘s roommate and a woman. Petitioner‘s roommate believed the woman
had stolen some of the roommate‘s cocaine. The roommate struggled with the
woman and called out to petitioner to lend assistance. Petitioner held the woman
down as his roommate attempted to examine the woman‘s rectum and vagina for
the missing cocaine. During the struggle, the woman was choked and fell
unconscious. The two men tied an electrical cord around her hands, feet, and
neck. Petitioner and his roommate went to sleep and, when they awoke, realized
the woman was dead. Because she had defecated, they bathed her. The men cut
the woman‘s fingernails in an attempt to destroy evidence under her fingernails
(i.e., human skin) indicating she had scratched petitioner‘s roommate. After doing
so, they moved the woman to an inoperable freezer where her body was stored.
        ―Four months after the killing, petitioner and his roommate committed rape
and robbery. They entered a woman‘s residence at 3:00 a.m. while she was
                                                            (footnote continued on next page)


                                           5
        After having been released on parole and subsequently returned to prison
for parole violations on three prior occasions,4 petitioner was again released from
prison on parole on January 7, 2001. As a result of his 1988 conviction of aiding
and abetting rape, petitioner was required to register as a sex offender for the
remainder of his life. (§ 290, subds. (b), (c).) In August 2001, petitioner was
arrested and subsequently convicted of violating a provision of California‘s sex
offender registration statutes and was sentenced to 25 years to life under the Three
Strikes law. Petitioner challenges the constitutionality of this sentence in the
present habeas corpus proceeding.
        Because there is a dispute regarding the nature of petitioner‘s conduct
underlying his most recent conviction — a dispute that bears directly upon the

(footnote continued from previous page)

sleeping. She was pulled from her bed, her hands were bound, and tape was
placed across her mouth. Petitioner‘s roommate raped the woman while petitioner
stood guard.
        ―Petitioner‘s roommate then ordered the woman to call another man and
invite him to the residence. When the man arrived, petitioner‘s roommate invited
him inside and took him to the bedroom where petitioner was keeping the woman.
Petitioner‘s roommate put a knife to the man‘s throat, threatened to kill him, and
took his wallet.
        ―The probation officer responsible for drafting the probation report prior to
sentencing on these offenses wrote: ‗It is absolutely incomprehensible to
understand how [petitioner] and [his roommate] could continue living in an
apartment with a body decomposing in a freezer and dripping fluid on the kitchen
floor.‘ The probation officer indicated petitioner was ‗a man without a
conscience‘ and that petitioner ‗show[ed] no remorse for his behavior and it is
expected that he will re-involve himself in criminal behavior when he is released
from State Prison.‘ He concluded, petitioner was ‗an extreme danger to the
community.‘ ‖
4      Petitioner‘s prior parole violations were based on positive narcotics testing
for cocaine, PCP, and methamphetamine, and on absconding from parole by
traveling to Florida without notice to, or permission of, his parole officer.




                                          6
cruel and unusual punishment claim before us — we describe in some detail the
relevant evidence presented at trial as well as additional facts disclosed by the
probation report and other documents that were before the trial court.
       As noted, petitioner was released from prison on parole on January 7, 2001.
Although required to do so, petitioner failed to contact his parole officer upon his
release, and the former Board of Prison Terms promptly summarily suspended his
parole on January 10, 2001. Petitioner‘s parole officer was unaware of petitioner‘s
whereabouts, however, and petitioner was not immediately apprehended.
       In addition to being required to contact his parole officer upon his release
from prison, petitioner was required to register as a sex offender within five days
of his release from prison. Evidence at trial indicated that the Department of
Justice had no record that, after his release from prison on January 7, 2001,
petitioner had registered as a sex offender at any location within the state.
       In August 2001, law enforcement officers conducted a general ―parole
sweep‖ in the Lancaster/Palmdale area for parolees who were suspected of having
outstanding parole violations. As part of the sweep, officers discovered that
petitioner had recently filed a document with the Department of Motor Vehicles
listing a residential address in the City of Palmdale. The officers went to the new
address and arrested petitioner at that address on August 23, 2001.
       The district attorney thereafter charged petitioner with two felony offenses:
(1) failure to register as a sex offender upon arrival in a jurisdiction (§ 290, former
subd. (a)(1)(A), now §§ 290, subd. (b), 290.013, 290.015) and (2) failure to update
his sex offender registration within five working days of his birthday (which for
petitioner fell on May 22, 2001) (§ 290, former subd. (a)(1)(D), now § 290.012).5

5      In 2007, Penal Code section 290 was repealed and reenacted as sections
290 to 290.023. (Stats. 2007, ch. 579, §§ 7-31.)



                                           7
The information also alleged that petitioner had sustained three prior serious or
violent felony convictions within the meaning of the Three Strikes law, bringing
petitioner within the reach of the increased punishment prescribed by that law.
       At trial, the prosecution presented a number of witnesses, as well as
documentary evidence, establishing that petitioner had been personally and
repeatedly advised of the sex offender registration requirements imposed by the
sex offender registration statutes, including the obligation to register as a sex
offender with the local sheriff‘s department within five days of arrival in a city,
and, independently, the obligation to update the registration every year within five
working days of his birthday.6 The prosecution‘s evidence also established that
after being released from prison in January 2001, petitioner had moved in with his
girlfriend and her children who resided in the City of Palmdale and had continued
to reside there until he was arrested in August 2001. As noted above, the
prosecution also presented evidence that records from the Department of Justice
indicated that petitioner had not registered as a sex offender or updated his sex
offender registration after his release from prison in January 2001.
       A clerk/technician employed by the Los Angeles County Sheriff‘s
Department station in Palmdale testified that she was the only person who
registered sex offenders at the Palmdale sheriff‘s department and had no record of


6       Both petitioner‘s parole officer and a Lancaster sheriff‘s department clerk
who first registered petitioner as a sex offender in October 1998 testified that they
had expressly advised petitioner that he was required to update his registration
within five days of his birthday every year, in addition to being required to register
upon a change of address. The Lancaster clerk also testified that a registration
form given to petitioner when he registered with her on April 12, 1999, explicitly
stated that petitioner‘s next annual date for registration would be May 22, 1999,
because his date of birth was May 22, 1959, and that she had specifically shown
that item to petitioner.




                                           8
having ever registered petitioner, that she was positive that she had not registered
him, and that she did not believe that she had ever seen petitioner. On cross-
examination, defense counsel questioned the quality of the technician‘s
recordkeeping and computer skills, implying that she may have been mistaken
regarding not having registered petitioner and may have failed properly to enter
his registration in the department‘s computer database.
       One of the law enforcement officers who arrested petitioner at his Palmdale
residence in August 2001 testified that, at the time of his arrest, petitioner, after
being advised of his constitutional rights, acknowledged that he had lived at that
address in Palmdale since January 2001 and told the officer that he (petitioner) had
failed to register or to contact his parole officer because ―he wanted to try to get by
through life without contact with the sheriff‘s department or parole.‖ Another
officer testified that he had found numerous personal papers of petitioner in the
drawer of the nightstand in petitioner‘s bedroom, including a document from the
Department of Motor Vehicles; the papers found in the drawer did not include any
document indicating that petitioner had in fact registered as a sex offender at the
Palmdale sheriff‘s department upon his release from prison.
       Petitioner testified in his own defense. Petitioner acknowledged that he
knew he was required to register as a sex offender upon his release from prison
and testified that he had in fact registered as a sex offender on January 12, 2001, at
the Palmdale sheriff‘s department, had received a receipt reflecting that
registration, and had put the receipt in the drawer in his nightstand where ―all my
paperwork goes.‖ In the course of his testimony, petitioner provided a description
of the exterior and interior of the building housing the sheriff‘s department,
identified the clerk/technician employed by the Palmdale sheriff‘s department who
had testified for the prosecution as the individual who had handled his registration
on January 12, 2001, and purported to describe the registration process. Petitioner

                                           9
further testified that although he knew that he had to register when he was released
from prison and when he moved, he believed that he only had to register once a
year, and thought that because he had registered with the Palmdale sheriff‘s
department in January 2001 he did not have to register again until his birthday the
following year (that is, until May 2002); he admitted that he had not updated his
registration within five days of his birthday in May 2001. On cross-examination,
petitioner acknowledged that although he believed that the alleged receipt of his
asserted January 12, 2001 sex offender registration at the Palmdale sheriff‘s
department was in his nightstand drawer when he was arrested in August 2001, he
had not informed the arresting officers that he had in fact registered as a sex
offender in January 2001 or that a receipt reflecting that registration was in his
nightstand drawer.
       In rebuttal, the prosecution recalled the Palmdale clerk/technician who had
testified earlier. The technician testified that petitioner‘s description of both the
exterior and interior of the sheriff‘s department building was inaccurate in many
very substantial respects, including the layout of the interior of the building and
the size, shape, and layout of the room in which she worked and in which she
registered sex offenders. The prosecution also recalled one of the arresting
officers, who testified that although he informed petitioner that he was being
arrested for failure to register as a sex offender, petitioner had not offered to
provide any type of documentation to prove that he had in fact registered.
       At the conclusion of the trial and after several hours of deliberation, the
jury returned a verdict acquitting petitioner of the charge of failing to register upon




                                          10
his arrival in the jurisdiction, but convicting him of failing to update his
registration within five working days of his birthday.7
       Prior to the sentencing hearing, petitioner admitted that he had been
convicted of the three prior serious or violent felonies charged in the information
(voluntary manslaughter, robbery, and aiding and abetting rape), and requested
that the trial court, on its own motion, strike at least two of the prior convictions in
the interest of justice. In support of that request, petitioner emphasized the
assertedly minor and nonaggravated nature of the triggering offense of which he
had been convicted, characterizing his current criminal conduct as a mere ―nonact‖
and further arguing that, as applied to him, the punishment prescribed by the Three
Strikes law would constitute cruel and unusual punishment.
       In ruling upon the request to strike priors, the trial court, in addition to
reviewing petitioner‘s lengthy and serious prior criminal record and noting that the
offense in this case occurred only a few months after petitioner‘s release on parole,
stated with regard to the facts of the current offense: ―With respect to the
defendant‘s testimony that he went down to the Palmdale station and registered,

7        In his opening brief, petitioner asserts that his failure to update his
registration at the time of his birthday ―arose from his confusion over having to
register the same address twice during the same year.‖ The jury was specifically
instructed, however, that in order to prove this offense, the prosecution was
obligated to prove, among other matters, that ―[t]he defendant actually knew of his
duty to update his registration on an annual basis, within five (5) working days of
his birthday, with the local law enforcement agency in the city in which he resided
. . . .‖ Thus, in convicting petitioner of this offense, the jury necessarily found
beyond a reasonable doubt that defendant knew of his obligation to annually
update his registration within five days of his birthday but failed to do so. (See
People v. Barker (2004) 34 Cal.4th 345, 350-358 [holding that a violation of the
sex offender registration statutes requires actual knowledge of the duty to register
but that one may violate the statute simply by forgetting to register after having
been advised of the duty to do so].)




                                           11
and that for some reason the paperwork was lost or not completed, or the registrar
failed to input his registration into the computer. I don‘t know if the jury accepted
that testimony or not, but the court did not believe that testimony for a moment.
So my review of evidence supports the fact that the only time that the defendant
ever made an effort to register was either when he was in prison for a parole
violation, or was taken to register by his parole agent. The defendant is well
aware of his obligation to register. He had been told about it on a number of
occasions. He is the one that chose to risk the sanctions for having failed to
register.‖ (Italics added.)
       Finding that ―[m]y review of the record indicates to me that [petitioner] has
consistently refused to register as a sex offender,‖ the trial court refused to strike
any of petitioner‘s prior serious or violent felony convictions and sentenced
defendant as a third strike defendant, imposing a 25-year-to-life sentence under the
Three Strikes law.
       In the course of its sentencing ruling, the trial court expressly distinguished
the facts of petitioner‘s current offense from the facts involved in People v. Cluff
(2001) 87 Cal.App.4th 991, a then recent Court of Appeal decision in which the
appellate court concluded that the trial court had abused its discretion in refusing
to strike prior convictions in a Three Strikes case in which the defendant‘s
triggering offense was also a failure to update his sex registration within five days
of his birthday. The trial court in the present case stated in this regard: ―With
respect to the Court of Appeal‘s decision in People v. Cluff . . . , I think that is an
appropriate disposition under the facts of that case, but the facts of this case appear
to me to be in stark contrast to those in the Cluff case, because in the Cluff case
that defendant made previous efforts to register and did register on previous
occasions.‖



                                           12
       On appeal, the appellate court affirmed petitioner‘s conviction and
sentence, specifically rejecting claims that (1) the trial court had abused its
discretion in failing to strike two prior serious or violent felony convictions and
(2) that the 25-year-to-life sentence imposed upon petitioner constituted cruel and
unusual punishment. (People v. Coley (May 13, 2003, B158564) [nonpub. opn.],
review den. July 23, 2003, S116799.)
       Several years after the affirmance of petitioner‘s conviction and sentence
became final, the Court of Appeal in Carmony II, supra, 127 Cal.App.4th 1066,
concluded that the imposition of a 25-year-to-life sentence under the Three Strikes
law upon a defendant who had been convicted of failing to annually update his sex
registration within five days of his birthday violated the prohibition against cruel
and/or unusual punishment contained in the federal and California Constitutions.
We discuss the Carmony II decision below (post, at pp. 24-30).
       Thereafter, petitioner filed the present habeas corpus proceeding,
contending that, as in Carmony II, supra, 127 Cal.App.4th 1066, his 25-year-to-
life sentence violated the prohibition on cruel and unusual punishment set forth in
the Eighth Amendment of the United States Constitution. Although, as noted,
petitioner had raised an Eighth Amendment challenge to his sentence in his direct
appeal and that claim had been rejected on appeal, and although a habeas corpus
petition generally may not rely upon an issue that has been raised and rejected on
appeal (see, e.g., In re Waltreus (1965) 62 Cal.2d 218, 225), California decisions
have recognized an exception to this general rule in instances in which there has
been a subsequent change in the law in petitioner‘s favor. (See, e.g., In re Harris
(1993) 5 Cal.4th 813, 841.) Because the decision in Carmony II was decided after
petitioner‘s appeal had become final, we determined that petitioner‘s Eighth
Amendment claim was not procedurally barred, and we issued an order to show
cause returnable before the Court of Appeal, with directions to consider the

                                          13
question whether petitioner was entitled to relief in light of the decision in
Carmony II.
       After briefing and argument, the Court of Appeal addressed petitioner‘s
Eighth Amendment claim on the merits, concluding that the Court of Appeal
decision in Carmony II, supra, 127 Cal.App.4th 1066, was wrongly decided and
that petitioner‘s 25-year-to-life sentence did not violate the Eighth Amendment of
the federal Constitution. In light of the conflict between the Court of Appeal
opinion in this case and the Court of Appeal decision in Carmony II, we granted
review.8

              II. Review of Relevant United States Supreme Court
                         Eighth Amendment Decisions
       The Eighth Amendment of the United States Constitution provides in full:
―Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.‖
       Although it has always been uniformly accepted that the federal cruel and
unusual punishment clause prohibits the infliction of certain modes of punishment
(for example, inherently barbaric punishments such as ―punishments of torture‖


8      In his habeas corpus petition, petitioner contended only that his sentence
violated the cruel and unusual punishment clause of the Eighth Amendment of the
federal Constitution, and did not raise any claim under the California Constitution.
As a consequence, the Court of Appeal expressly limited its decision to a ruling on
the Eighth Amendment question, and the petition for review sought review only of
that federal constitutional issue. Although in subsequent briefing in this court
petitioner has argued that his sentence also violates the cruel or unusual
punishment clause of the California Constitution, because the habeas corpus
petition itself was limited to the federal constitutional issue and the Court of
Appeal expressly confined its consideration and decision to that issue, we
conclude that it is appropriate to limit our consideration and decision to the federal
constitutional claim.




                                          14
(see, e.g., Wilkerson v. Utah (1879) 99 U.S. 130, 136)), there has been some
dispute, particularly outside the context of capital punishment, whether the
provision also prohibits the imposition of punishment that is ―excessive‖ or
―disproportionate‖ in relation to the offense or offenses for which the punishment
is imposed. Over the past two decades, several high court justices have expressed
doubts whether the Eighth Amendment‘s cruel and unusual punishment clause was
intended to grant courts any authority to evaluate the length of prison sentences
enacted by legislative bodies to determine whether such sentences are excessive or
disproportionate in light of the offense or offenses for which the sentences are
imposed. (See Harmelin v. Michigan (1991) 501 U.S. 957, 962-994 [separate opn.
of Scalia, J., joined in relevant part by Rehnquist, C.J.] (Harmelin); Ewing, supra,
538 U.S. at pp. 31-32 [conc. opn. of Scalia, J.]; Ewing, at p. 32 [conc. opn. of
Thomas, J.].) A majority of the high court, however, has consistently rejected this
limited view of the scope of the federal cruel and unusual punishment clause, and
it is now firmly established that ―[t]he concept of proportionality is central to the
Eighth Amendment,‖ and that ―[e]mbodied in the Constitution‘s ban on cruel and
unusual punishments is the ‗precept of justice that punishment for crime should be
graduated and proportioned to [the] offense.‘ [Citation.]‖ (Graham v. Florida
(2010) 560 U.S. ___, ___ [176 L.Ed.2d 825, 835] (Graham); see also Solem v.
Helm (1983) 463 U.S. 277, 284-292 (Solem); Harmelin, supra, at pp. 996-1001,
997 [conc. opn. of Kennedy, J., joined by O‘Connor and Souter, JJ.] [Eighth
Amend. encompasses ―a narrow proportionality principle‖ that ―also applies to
noncapital sentences‖]; Harmelin, at pp. 1009-1021 [dis. opn. of White, J., joined
by Blackmun and Stevens, JJ.]; Harmelin, at p. 1027 [dis. opn. of Marshall, J.];
Ewing, supra, at pp. 20-24 [lead opn. of O‘Connor, J., joined by Rehnquist, C.J.
and Kennedy, J.]; Ewing, at pp. 32-35 [dis. opn. of Stevens, J., joined by Souter,
Ginsburg, and Breyer, JJ.].)

                                          15
       In past cases, the high court has addressed the claim that a sentence of
imprisonment for a term of years is unconstitutionally excessive in a variety of
contexts, but in view of the circumstances of the present case the most pertinent of
the high court‘s past proportionality decisions are those that have considered the
validity of lengthy terms of imprisonment imposed under ―habitual offender‖ or
recidivist sentencing provisions analogous to California‘s Three Strikes law. As
we shall see, each of these cases was decided by a closely divided court and
illustrates the particularly difficult nature of line drawing in this context.
       In Rummel v. Estelle (1980) 445 U.S. 263 (Rummel), the initial case in this
line of decisions, the defendant had been sentenced to a term of life in prison with
the possibility of parole under a Texas statute that mandated a life sentence for any
person convicted of a third felony offense. In Rummel itself, the defendant‘s
triggering offense was a conviction for ―felony theft,‖ based upon the defendant‘s
conduct of ―obtaining $120.75 by false pretenses.‖ (445 U.S. at p. 266.) The
defendant had two prior felony convictions, the first for ―fraudulent use of a credit
card to obtain $80 worth of goods or services‖ (id. at p. 265) and the second
for ―passing a forged check in the amount of $28.36.‖ (Ibid.) In a five-to-four
decision, the court in Rummel rejected the defendant‘s contention that a sentence
of life imprisonment with the possibility of parole constituted cruel and unusual
punishment as applied to the circumstances of his case. In response to a criticism
advanced by the dissenting opinion in that case, the court in Rummel
acknowledged that a sentence for a term of years might be unconstitutionally
disproportionate in a very extreme case — for example, ―if a legislature made
overtime parking a felony punishable by life imprisonment‖ (445 U.S. at p. 274,
fn. 11) — but the court concluded that the facts before it did not constitute such an
extreme case. The court held that ―[h]aving twice imprisoned him for felonies,
Texas was entitled to place upon Rummel the onus of one who is simply unable to

                                           16
bring his conduct within the social norms prescribed by the criminal law of the
State.‖ (Id. at p. 284.)
          In Rummel, four justices dissented in an opinion authored by Justice
Powell. (Rummel, supra, 445 U.S. at pp. 285-307.) The dissent emphasized that
each of the defendant‘s felony convictions was for a nonviolent theft offense and
that in total defendant had unlawfully defrauded others of only $230. The dissent
concluded that ―[t]he sentence imposed upon the petitioner would be viewed as
grossly unjust by virtually every layman and lawyer‖ and that ―objective criteria
clearly establish that a mandatory life sentence for defrauding persons of about
$230 crosses any rationally drawn line separating punishment that lawfully may be
imposed from that which is proscribed by the Eighth Amendment.‖ (445 U.S. at
p. 307 (dis. opn. of Powell, J.).)
          Just three years after the decision in Rummel, supra, 445 U.S. 263, the
United States Supreme Court, with Justice Powell now writing for a five-judge
majority, reached a contrary conclusion in Solem, supra, 463 U.S. 277. In Solem,
the defendant had a prior criminal record of relatively minor, nonviolent crimes
and was convicted in the current prosecution of a felony offense for ―uttering a ‗no
account‘ check for $100.‖ (463 U.S. at p. 281.) In Solem, however, the triggering
offense was the defendant‘s seventh felony conviction, and the trial court
sentenced him under South Dakota‘s recidivist sentencing provision to a term of
life imprisonment, a term which, under South Dakota law, was not subject to
parole.
          In analyzing whether the defendant‘s sentence violated the prohibition on
cruel and unusual punishment set forth in the Eighth Amendment, the court in
Solem first reviewed the history of the Eighth Amendment and concluded ―as a
matter of principle that a criminal sentence must be proportionate to the crime for
which the defendant has been convicted.‖ (Solem, supra, 463 U.S. at p. 290.) At

                                           17
the same time, the court in Solem cautioned that ―[r]eviewing courts, of course,
should grant substantial deference to the broad authority that legislatures
necessarily possess in determining the types and limits of punishments for crimes,
as well as to the discretion that trial courts possess in sentencing convicted
criminals‖ (ibid.), and further emphasized that ―a court‘s proportionality analysis
under the Eighth Amendment should be guided by objective criteria, including
(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences
imposed on other criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other jurisdictions.‖ (Solem, supra,
at p. 292.) Reviewing the sentence in question under these criteria, the majority in
Solem determined (1) that the defendant‘s triggering offense ―was ‗one of the most
passive felonies a person could commit‘ ‖ (id. at p. 296), (2) that ―[h]is prior
offenses, although classified as felonies, were all relatively minor [and]
nonviolent‖ (id. at pp. 296-297), (3) that his sentence — life without the
possibility of parole — was ―far more severe‖ than the sentence considered in
Rummel (Solem, supra, at p. 297) and was the same sentence that South Dakota
imposed for much more serious offenses and upon much more culpable habitual
offenders (id. at pp. 298-299), and, finally, (4) that it appeared that the defendant‘s
sentence was more severe than the sentence that would have been imposed upon a
similarly situated defendant in any other state. (Id. at pp. 299-300.) Under these
circumstances, the court in Solem concluded that the defendant‘s sentence ―is
significantly disproportionate to his crime, and is therefore prohibited by the
Eighth Amendment.‖ (Id. at p. 303.) The court in Solem, however, did not
purport to overrule Rummel, expressly noting that the facts before it were
distinguishable from Rummel because ―[w]hereas Rummel was eligible for a
reasonably early parole, Helm, at age 36, was sentenced to life with no possibility
of parole.‖ (Solem, supra, at p. 303, fn. 32.)

                                          18
       Four justices dissented in Solem, concluding that the majority opinion in
that case was irreconcilable with the reasoning and conclusion in Rummel.
Although the dissent acknowledged ―that in extraordinary cases — such as a life
sentence for overtime parking — it might be permissible for a court to decide
whether the sentence is grossly disproportionate to the crime‖ (Solem, supra, 463
U.S. at p. 311, fn. 3 (dis. opn. of Burger, C.J.)), it concluded that given the
defendant‘s lengthy criminal history the sentence imposed in Solem did not reflect
―such an extraordinary case that reasonable men could not differ about the
appropriateness of this punishment.‖ (Ibid.)
       In 2003, 20 years after the decision in Solem, the Supreme Court next
addressed a cruel and unusual punishment challenge to a sentence imposed under a
recidivist sentencing statute in Ewing, supra, 538 U.S. 11 — a case that, as we
have already noted, arose under California‘s Three Strikes law. In Ewing, the
defendant had a lengthy prior criminal history that included one conviction of
robbery (in which the defendant had threatened a victim with a knife) as well as
numerous convictions for burglary, theft, and unlawful possession of drug
paraphernalia and a firearm. (See 538 U.S. at pp. 18-19.) After serving several
years in prison, the defendant in Ewing was paroled in 1999. Ten months later, he
stole three golf clubs, each priced at $399, from a pro shop at a golf course,
walking out of the shop with the clubs concealed in his pants leg. An employee
who saw him limp out of the shop telephoned the police and the defendant was
apprehended shortly thereafter in the golf course parking lot.
       In response to his most recent offense, the prosecution charged the
defendant in Ewing under the Three Strikes law, alleging that the defendant had
previously been convicted of four serious or violent felonies (robbery and three
burglaries) and seeking the 25-year-to-life sentence authorized by the Three
Strikes law. After being convicted of one count of felony grand theft — an

                                          19
offense treated as a ―wobbler‖ under California law (that is, an offense that may be
punished as either a felony or a misdemeanor) — based on his theft of the three
golf clubs, the defendant asked the trial court to reduce the grand theft conviction
to a misdemeanor or, alternatively, to strike some or all of his prior convictions, so
as to avoid a third strike sentence. The trial court declined to reduce the grand
theft conviction to a misdemeanor or to strike any of the prior serious or violent
felony convictions, and sentenced the defendant to the 25-year-to-life sentence
authorized by the Three Strikes law.
       On appeal, the defendant in Ewing contended that imposition of a 25-year-
to-life sentence for a conviction based on the nonviolent theft of three golf clubs
constituted cruel and unusual punishment in violation of the Eighth Amendment.
After the California Court of Appeal rejected the contention and affirmed the
conviction and sentence and this court denied a petition for review, the United
States Supreme Court granted certiorari and ultimately rejected defendant‘s cruel
and unusual punishment claim by a five-to-four vote.
       In Ewing, the lead opinion, authored by Justice O‘Connor (and joined by
Rehnquist, C.J. and Kennedy, J.), after briefly reviewing the decisions in Rummel,
Solem, and two other decisions that addressed cruel and unusual punishment
challenges to lengthy noncapital sentences that had been imposed outside the
antirecidivist context (see Hutto v. Davis (1982) 454 U.S. 370 [rejecting Eighth
Amend. challenge to 40-year sentence for distributing a small quantity of
marijuana]; Harmelin, supra, 501 U.S. 957 [rejecting Eighth Amend. challenge to
life-without-parole sentence for possessing over 650 gm. (1.5 lb.) cocaine]),
proceeded to analyze the merits of the cruel and unusual punishment claim in
Ewing using the approach that had been articulated and applied by Justice
Kennedy in his concurring opinion in Harmelin. (See Harmelin, supra, at
pp. 996-1005 (conc. opn. of Kennedy, J.).) As described in the high court‘s more

                                         20
recent proportionality decision in Graham, supra, 176 L.Ed.2d 825, Justice
Kennedy‘s concurring opinion in Harmelin had synthesized the court‘s prior
decisions in this realm as embodying the general rule ―that the Eighth Amendment
contains a ‗narrow proportionality principle,‘ that ‗does not require strict
proportionality between crime and sentence‘ but rather ‗forbids only extreme
sentences that are ―grossly disproportionate‖ to the crime.‘ ‖ (Graham, supra, 176
L.Ed.2d at p. 836.) Justice Kennedy‘s concurring opinion in Harmelin further
went on to explain how that principle is to be applied. As summarized in Graham,
under the approach set forth in the Harmelin concurrence, ―[a] court must begin by
comparing the gravity of the offense and severity of the sentence. [Citation.] ‗[I]n
the rare case in which [this] threshold comparison . . . leads to an inference of
gross disproportionality‘ the court should then compare the defendant‘s sentence
with the sentences received by other offenders in the same jurisdiction and with
the sentences imposed for the same crime in other jurisdictions. [Citation.] If this
comparative analysis ‗validate[s] an initial judgment that [the] sentence is grossly
disproportionate,‘ the sentence is cruel and unusual. [Citation.]‖ (Graham, supra,
at p. 836.)
       Applying this analysis in Ewing, Justice O‘Connor‘s opinion turned first to
an evaluation of the gravity of the defendant‘s offense compared to the severity of
the penalty. (Ewing, supra, 538 U.S. at p. 28.) The opinion initially observed that
―[e]ven standing alone, Ewing‘s theft‖ of nearly $1,200 worth of merchandise
―should not be taken lightly. His crime was certainly not ‗one of the most passive
felonies a person could commit.‘ ‖ (Ibid.) The opinion further emphasized,
however, that ―[i]n weighing the gravity of Ewing‘s offense, we must place on the
scales not only his current felony, but also his long history of felony recidivism.
Any other approach would fail to accord proper deference to the policy judgments
that find expression in the legislature‘s choice of sanctions. In imposing a three

                                          21
strikes sentence, the State‘s interest is not merely punishing the offense of
conviction, or the ‗triggering‘ offense: ‗[I]t 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.‘ ‖ (Id. at p. 29, italics added.)
       Although Justice O‘Connor‘s opinion in Ewing recognized that the 25-year-
to-life sentence imposed upon Ewing ―is a long one‖ (Ewing, supra, 538 U.S. at
p. 30), the opinion concluded that the sentence was justified ―by the State‘s public-
safety interest in incapacitating and deterring recidivist felons, and amply
supported by [Ewing‘s] own long, serious criminal record.‖ (Id. at pp. 29-30.)
The opinion explained that Ewing‘s sentence ―reflects a rational legislative
judgment, entitled to deference, that offenders who have committed serious or
violent felonies and who continue to commit felonies must be incapacitated. The
State of California ‗was entitled to place upon [Ewing] the onus of one who is
simply unable to bring his conduct within the social norms prescribed by the
criminal law of the State.‘ ‖ (Id. at p. 30, quoting Rummel, supra, 445 U.S. at
p. 284.)
       Determining that ―Ewing‘s is not ‗the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads to an
inference of gross disproportionality‘ ‖ (Ewing, supra, 538 U.S. at p. 30), Justice
O‘Connor‘s opinion concluded, ―Ewing‘s sentence of 25 years to life in prison,
imposed for the offense of felony grand theft under the three strikes law . . . does
not violate the Eighth Amendment‘s prohibition on cruel and unusual
punishments.‖ (Id. at pp. 30-31.)
       In Ewing, two justices — Justices Scalia and Thomas — each wrote a
separate concurring opinion, both agreeing that Ewing‘s sentence did not violate
the Eighth Amendment but basing their concurrence in the judgment on the view

                                            22
that the Eighth Amendment contains no proportionality principle at all. (See
Ewing, supra, 538 U.S. at pp. 31-32 (conc. opn. of Scalia, J.); id. at p. 32 (conc.
opn. of Thomas, J.).) The three justices who signed Justice O‘Connor‘s opinion
and the two concurring justices comprised the five-justice majority in Ewing.
       Four justices dissented in Ewing. Like Justice O‘Connor‘s opinion, the
dissenting opinion by Justice Breyer, joined by Justices Stevens, Souter, and
Ginsburg, applied the analytical framework set forth in Justice Kennedy‘s
concurring opinion in Harmelin (Ewing, supra, 538 U.S. at p. 36 (dis. opn. of
Breyer, J.)),9 but unlike the lead opinion the dissent, in applying that approach,
concluded that the case before it did constitute one of the rare cases ―in which a
court can say with reasonable confidence that the punishment is ‗grossly
disproportionate‘ to the crime.‖ (Ewing, supra, 538 U.S. at p. 37 (dis. opn. of
Breyer, J.).) In reaching that conclusion, the dissent, after considering the ―[t]hree
kinds of sentence-related characteristics‖ that it believed ―define the relevant
comparative spectrum‖ — ―(a) the length of the prison term in real time, i.e., the
time that the offender is likely actually to spend in prison; (b) the sentence-
triggering criminal conduct, i.e., the offender‘s actual behavior or other offense-
related circumstances; and (c) the offender‘s criminal history‖ (id. at p. 37) —

9      Justice Breyer‘s dissenting opinion noted that ―for present purposes‖ it was
applying Justice Kennedy‘s analytical framework in Harmelin. (Ewing, supra,
538 U.S. at p. 36.) In a brief separate dissenting opinion, joined by Justices
Souter, Ginsburg and Breyer, Justice Stevens observed that, while he agreed with
Justice Breyer that Ewing‘s sentence was grossly disproportionate even under
Harmelin’s narrow proportionality framework, ―it is not clear that this case is
controlled by Harmelin, which considered the proportionality of a life sentence
imposed on a drug offender who had no prior felony convictions. Rather, the
three-factor analysis established in Solem v. Helm, 463 U.S. 277, 290-291 (1983),
which specifically addressed recidivist sentencing, seems more directly on point.‖
(438 U.S. at p. 32, fn. 1 (dis. opn. of Stevens, J.).)




                                          23
determined that the circumstances presented in Ewing fell between the
circumstances presented in the court‘s previous recidivist sentencing decisions in
Rummel and Solem, and ultimately found that, as in Solem, ―Ewing‘s sentence (life
imprisonment with a minimum term of 25 years) is grossly disproportionate to the
triggering offense conduct — stealing three golf clubs — Ewing‘s recidivism
notwithstanding.‖ (Ewing, supra, at p. 53 (dis. opn. of Breyer, J.).)10
                 III. Review of Relevant Post-Ewing Decisions
                                  A. Carmony II
       Two years after the United States Supreme Court‘s decision in Ewing,
supra, 538 U.S. 11, a panel of the California Court of Appeal was faced with the

10      In Lockyer v. Andrade (2003) 538 U.S. 63 (Andrade) — a companion case
to Ewing — the Supreme Court, in another five-to-four decision, reversed a
decision of the Ninth Circuit which had overturned a decision of the California
Court of Appeal upholding the imposition of two consecutive 25-year-to-life
sentences under California‘s Three Strikes law upon a defendant whose triggering
felony convictions were each for petty theft with a prior arising from the
defendant‘s theft of videotapes from two Kmart stores on two occasions.
Although the majority in Andrade found that it was ― ‗clearly established‘ ‖ under
prior Supreme Court precedent that ―[a] gross disproportionality principle is
applicable to sentences for terms of years‖ (538 U.S. at p. 72), it concluded that ―it
was not an unreasonable application of our clearly established law for the
California Court of Appeal to affirm Andrade‘s sentence of two consecutive terms
of 25 years to life in prison.‖ (Id. at p. 77.)
        The four justices who dissented in Ewing also dissented in Andrade, joining
in a dissenting opinion authored by Justice Souter. (Andrade, supra, 538 U.S. at
pp. 77-83.) Justice Souter reasoned that whether or not one accepts the state‘s
judgment that 25 years of incapacitation prior to parole eligibility is appropriate
when a defendant with two serious or violent felony convictions commits another
felony, ―that policy cannot reasonably justify the imposition of a consecutive 25-
year minimum for a second minor felony committed soon after the first triggering
offense. . . . [T]he argument that repeating a trivial crime justifies doubling a 25-
year minimum incapacitation sentence based on a threat to the public does not
raise a seriously debatable point on which judgments might reasonably differ.‖
(Id. at pp. 81-82 (dis. opn. of Souter, J.).)




                                         24
question whether a 25-year-to-life sentence under the Three Strikes law violated
either the federal constitutional prohibition on cruel and unusual punishments or
the state constitutional prohibition on cruel or unusual punishment, when imposed
upon a defendant whose triggering offense was the failure to update his sex
offender registration within five working days of his birthday. (Carmony II,
supra, 127 Cal.App.4th 1066.)
       Keith Carmony, the defendant in Carmony II, had been convicted in 1983
of oral copulation by force or fear with a minor under the age of 14 years and as a
consequence was required to register as a sex offender. Upon his release from
prison on September 16, 1999, Carmony promptly registered as a sex offender as
required by law. A week later, on September 23, 1999, after moving to a new
residence, Carmony registered again, informing the authorities of his new address.
Carmony‘s birthday fell on October 22 — the following month — and although
his parole officer reminded him that he was required to update his registration
annually within five working days of his birthday, Carmony — who continued to
reside at the same address — forgot to reregister within five days of his birthday.
On November 23, 1999, a month after Carmony‘s birthday, Carmony‘s parole
officer went to Carmony‘s registered residential address and arrested him there for
failing to comply with the annual registration requirement.
       The Court of Appeal in Carmony II pointed out that ―[d]efendant 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.‖ (127 Cal.App.4th at p. 1073.)
       In response to the current charge, Carmony admitted that he had failed to
reregister within five working days of his birthday and pled guilty to that offense.

                                         25
He also admitted that he had previously been convicted of three serious or violent
felonies, but requested that the trial court strike at least two of those prior
convictions to avoid a mandatory 25-year-to-life sentence under the Three Strikes
law. The trial court declined to strike any of the prior convictions and sentenced
him to a 25-year-to-life sentence under the Three Strikes law.11
       On appeal, the Court of Appeal had initially concluded that the trial court
had abused the discretion afforded by the Three Strikes law in refusing to strike
any of his prior convictions in the interest of justice (see People v. Superior Court
(Romero) (1996) 13 Cal.4th 497) and reversed the sentence on that basis; as a
consequence, the appellate court did not reach the question whether the 25-year-
to-life sentence constituted cruel and/or unusual punishment. We granted review.
After first concluding that a trial court‘s refusal to strike a prior under the Three
Strikes law is properly reviewable under an abuse of discretion standard (Carmony
I, supra, 33 Cal.4th at pp. 373-376), this court held that in light of Carmony‘s prior
record, the Court of Appeal had erred in finding that the trial court had abused its
discretion in refusing to strike the prior convictions in that case. (33 Cal.4th at
pp. 376-380.) At the same time, our opinion explicitly noted that ―[w]e do not . . .
address the issue of whether the sentence violates the constitutional guarantees
against cruel and/or unusual punishment or double jeopardy, and leave the
resolution of this issue for the Court of Appeal on remand.‖ (Id. at p. 380, fn. 6.)12

11      Carmony also admitted that he had suffered a prior prison term, and the
trial court sentenced him to an additional one year term for the prior prison term,
resulting in an aggregate term of imprisonment of 26 years to life.
12     In Carmony I (in which the majority opinion was authored by Brown, J.),
Justice Moreno authored a concurring opinion, joined by Justice Chin. (Carmony
I, supra, 33 Cal.4th at pp. 380-381.) Although agreeing that the trial court had not
abused its discretion under section 1385 in failing to strike at least two prior
convictions, the concurring opinion observed that ―it is difficult to escape the
                                                             (footnote continued on next page)


                                           26
        On remand, the Court of Appeal addressed the constitutional issue in its
decision in Carmony II, supra, 127 Cal.App.4th 1066, and concluded, in a two-to-
one decision, that, under the circumstances of that case, the 25-year-to-life
sentence imposed under the Three Strikes law violated both the federal
Constitution‘s prohibition of cruel and unusual punishments and the state
Constitution‘s prohibition of cruel or unusual punishment. (Carmony II, supra, at
pp. 1074-1989.)
        In addressing the federal constitutional question through application of the
approach endorsed by the lead opinion in Ewing, supra, 538 U.S 11, the court in
Carmony II first discussed the relative gravity of the defendant‘s triggering
offense. The court observed in this regard: ―While a violation of section 290 [the
sex offender registration provision] is classified as a felony, the instant offense
was a passive, nonviolent, regulatory offense that posed no direct or immediate
danger to society. Defendant committed this offense by violating the annual
registration requirement . . . , having correctly registered the proper information
the month before. Obviously, no change had occurred in the intervening period
and defendant‘s parole agent was aware of this fact. Thus, because defendant did
not evade or intend to evade law enforcement officers, his offense was the most



(footnote continued from previous page)

conclusion that the electorate that enacted the Three Strikes law did not intend to
impose a life sentence on someone whose last offense was a technical violation of
the sex offender registration statute — failing to register within five days of his
birthday although he had registered a month earlier and had not changed his
address since then — that posed no danger to the public. . . . [Citation.] Subject
to the caveat that the sentence may yet be overturned on constitutional grounds, I
reluctantly concur in the majority opinion.‖ (33 Cal.4th at p. 381 (conc. opn. of
Moreno, J.).)




                                          27
technical and harmless violation of the registration law we have seen.‖ (Carmony
II, supra, 127 Cal.App.4th at p. 1078.)
       After reviewing the legislative history of the specific provision imposing
the annual registration requirement, the court in Carmony II explained that ―the
available legislative history suggests the annual registration requirement was
intended to address the problem of offenders who fail to notify authorities of an
address change because they are no longer under active parole supervision.
Although this requirement serves a legitimate purpose, it is nevertheless a backup
measure to ensure that authorities have current accurate information. In this case,
when defendant failed to register within five days of his birthday, he was still on
parole, had recently updated his registration, had not moved or changed any other
required registration information during the one month since he registered, and
was in contact with his parole officer. Therefore, his failure to register was
completely harmless and no worse than a breach of an overtime parking
ordinance.‖ (Carmony II, supra, 127 Cal.App.4th at p. 1079.)13
       The majority in Carmony II then considered the severity of the sentence
that had been imposed upon the defendant, noting that the defendant ―was
sentenced to a term of 25 years to life in prison‖ and that ―[i]n real terms, [the


13     In the course of its opinion, the majority in Carmony II distinguished the
prior Court of Appeal decision in People v. Meeks (2004) 123 Cal.App.4th 695,
which had upheld a 25-year-to-life sentence under the Three Strikes law imposed
upon a defendant whose triggering offense was a willful failure to register within
five working days of an address change. The court in Carmony II noted that ―the
offense committed by Meeks was not the technical violation committed by
[Carmony]. Meeks failed to register after changing his residence and therefore,
unlike in the present case, law enforcement authorities did not have Meeks‘s
correct address and information.‖ (Carmony II, supra, 127 Cal.App.4th at
p. 1082, fn. 11.)




                                          28
defendant] must serve 25 years in prison before he is eligible for parole.‖
(Carmony II, supra, 127 Cal.App.4th at p. 1079.) The court stated that ―[i]t is
beyond dispute that a life sentence is grossly disproportionate to the offense just
described.‖ (Ibid.)
       The court in Carmony II recognized that in determining the validity of the
sentence under the Eighth Amendment it must take into consideration that the
defendant was a repeat offender whom the Legislature may punish more severely
than it punishes a first-time offender. The majority opinion in Carmony II
reasoned, however, that because ―the double jeopardy clause prohibits successive
punishment for the same offense,‖ the ―policy of the clause . . . circumscribes the
relevance of recidivism,‖ and ―[t]o the extent the ‗punishment greatly exceeds that
warranted by the [triggering] offense, it begins to look very much as if the
offender is actually being punished again for his prior offenses.‘ ‖ (Carmony II,
supra, 127 Cal.App.4th at p. 1080.) The majority in Carmony II found that
―[g]iven the minimal and completely harmless nature of defendant‘s [triggering]
offense and the relatively light penalty prescribed for a simple violation of the
registration requirements, defendant‘s prior serious and violent felonies almost
wholly account for the extreme penalty imposed on defendant.‖ (Ibid.)
Furthermore, because in the appellate court‘s view the defendant‘s triggering
offense in that case ―reveals no tendency to commit additional offenses that pose a
threat to public safety‖ (id. at p. 1081), the court concluded that ―a prison term of
25 years to life is grossly disproportionate to the gravity of the duplicate
registration offense‖ (ibid.) even taking into account the defendant‘s multiple
serious prior convictions. The court in Carmony II then compared the defendant‘s
sentence with the sentences available for other offenses within California and for
the sentences imposed under comparable circumstances in other states (id. at
pp. 1081-1084), and ultimately concluded that ―this case is one of those rare cases

                                          29
in which the harshness of the Three Strikes sentence is grossly disproportionate to
the gravity of the predicate offense . . . and violates the cruel and unusual
punishment clause of the United States Constitution.‖ (Id. at p. 1084.)14 This
court denied a petition for review, with Justices Kennard and Baxter voting to
grant review.
                              B. Gonzalez v. Duncan
       Three years after the Carmony II decision, a similar cruel and unusual
punishment claim came before the federal Court of Appeals for the Ninth Circuit
in Gonzalez v. Duncan, supra, 551 F.3d 875. As in Carmony II, the defendant in
Gonzalez had previously been convicted of a number of serious and violent
felonies,15 but the defendant‘s triggering offense that had resulted in a 25-year-to-



14      In Carmony II, one Court of Appeal justice dissented from the
determination that the defendant‘s sentence violated the Eighth Amendment.
(Carmony II, supra, 127 Cal.App.4th at pp. 1089-1092 (conc. & dis. opn. of
Nicholson, J.).) The dissenting justice disagreed with the majority‘s
characterization of the defendant‘s current offense as a harmless technical
violation of a regulatory law, observing, ―Once we catch a person who has failed
to register, we know where he is. That is fortunate, but it does not justify the
violation of an important public safety statute. We rightly place strict
requirements on sex offenders so we can keep tabs on them. [¶] . . . [¶] . . . While
it was fortuitous that defendant was found where he had last registered, the
requirement to register at continuing intervals is rational and supported by the
policy discussed above.‖ (Carmony II, supra, 127 Cal.App.4th at p. 1091.) The
dissenting justice also disagreed with the majority‘s view that the primary focus
should be placed upon the defendant‘s current offense, explaining that ―[h]ere,
defendant committed the felony of failing to register after having been convicted
of two violent or serious felonies. That is the relevant set of circumstances that
must bear the weight of the penalty imposed.‖ (Ibid.)
15      The defendant in Gonzalez had previously been convicted of committing
(1) a lewd act with a child under 14, (2) attempted rape by force, and (3) second-
degree robbery. (Gonzalez, supra, 551 F.3d at p. 878.)




                                          30
life sentence under the Three Strikes law was a conviction of failing to update his
sex offender registration within five working days of his birthday.
       In analyzing the gravity of the defendant‘s offense in accordance with the
controlling constitutional principles set forth by the United States Supreme Court
in Ewing, supra, 538 U.S. 11, and Andrade, supra, 538 U.S. 63, the court in
Gonzalez embraced the Carmony II court‘s characterization of the annual
registration requirement as ―merely a ‗backup measure to ensure that authorities
have current accurate information‘ ‖ and of a failure to comply with that
requirement as ― ‗the most technical violation of the section 290 registration
requirement.‘ ‖ (Gonzalez, supra, 551 F.3d at p. 884.) The court in Gonzalez then
stated: ―Indeed, we are unable to discern any actual harm resulting from
Gonzalez‘s failure to comply with the annual registration requirement. Gonzalez
updated his sex offender registration nine months before and three months after his
February 24, 2001, birthday, and he remained at his last registered address
throughout that time period. There is nothing in the record remotely indicating
that Gonzalez‘s failure to reregister the same address a third time in the same
twelve month period could have interfered with the ability of police to monitor his
activities. The record confirms that Gonzalez was in fact ‗readily available for
police surveillance‘: Gonzalez was arrested ‗fairly close‘ to his registered address,
and the arresting officers were familiar with Gonzalez and had spoken to him
previously at that location. . . . We conclude that ‗[t]he purpose of the registration
statute was not undermined by [Gonzalez‘s] failure to annually update his
registration.‘ ‖ (Id. at pp. 884-885, fn. omitted.)
       The court in Gonzalez recognized that ―California has a valid ‗public-safety
interest in incapacitating and deterring recidivist felons‘ ‖ (Gonzalez, supra, 551
F.3d at p. 886) and that, under Ewing, supra, 538 U.S. 11, it was required to
consider the defendant‘s criminal history in determining the validity of the

                                          31
defendant‘s sentence for Eighth Amendment purposes. Further, the court in
Gonzalez acknowledged that ―Gonzalez‘s criminal history is extensive‖ and that
―[his] prior convictions, which include both crimes of violence and sexual
predation, are very serious.‖ (Gonzalez, supra, at p. 886.)
       The court in Gonzalez explained, however, that ―we are unable to discern
any rational relationship between Gonzalez‘s failure to update his sex offender
registration annually and the probability that he will recidivate as a violent
criminal or sex offender. . . . [¶] Gonzalez‘s present offense does not reveal any
propensity to recidivate. California certainly may be ‗justified in punishing a
recidivist more severely than it punishes a first offender,‘ [citation], where ‗ ―the
latest crime . . . is considered to be an aggravated offense because [it is] a
repetitive one,‖ ‘ [citation]. However, what California has done here is
fundamentally different. It has imposed an extraordinarily harsh sentence on
Gonzalez based on a violation of a technical regulatory requirement that resulted
in no social harm and to which little or no moral culpability attaches. Absent
some connection between Gonzalez‘s past violent and sexual offenses, his present
regulatory violation, and his propensity to recidivate as a violent or sexual
offender, we cannot conclude that California‘s interest in deterring and
incapacitating recidivist offenders justifies the severity of the indeterminate life
sentence imposed.‖ (Gonzalez, supra, 551 F.3d at p. 887.)
       Concluding, for the foregoing reasons, that Gonzalez‘s sentence ―raises an
inference of gross disproportionality‖ (Gonzalez, supra, 551 F.3d at p. 887), the
court in Gonzalez went on to undertake a comparison of Gonzalez‘s sentence with
the sentences imposed for other crimes in California and for the same crime in
other states. (Id. at pp. 887-888.) After conducting that comparison, the court
found that it confirmed the view that Gonzalez‘s sentence was grossly
disproportionate and thus violated the Eighth Amendment. (Id. at p. 889; see also

                                          32
Bradshaw v. State (Ga. 2008) 671 S.E.2d 485, 488-493 [mandatory sentence of
life imprisonment imposed under a recidivist sentencing provision for failure to
comply with sex offender registration requirement constitutes cruel and unusual
punishment in violation of the Eighth Amend. as applied to a defendant whose
conduct reflected a good faith effort to comply with the requirement and no intent
to evade detection].)
                                C. People v. Nichols
       One year after the decision in Gonzalez and four years after the decision in
Carmony II, in the case of People v. Nichols (2009) 176 Cal.App.4th 428
(Nichols), another panel of the Court of Appeal, Third Appellate District (the same
district that had decided Carmony II), faced the constitutionality of a third strike
sentence imposed for another sex offender registration claim. The triggering
offense in Nichols was the defendant‘s failure to comply with the distinct
provision of the sex offender registration statute requiring a sex offender to
register a new address within five working days of a change of residence. The
defendant contended that the decision in Carmony II required the appellate court
to find that the 25-year-to-life sentence imposed by the trial court in that case
constituted cruel and unusual punishment in violation of the Eighth Amendment.
       The court in Nichols emphatically rejected the defendant‘s contention,
pointing out that ―[t]he Carmony II court distinguished the seriousness of the
registration offense before it with the one before the [court in People v. Meeks,
supra, 123 Cal.App.4th 695]. The Carmony II court noted ‗the offense committed
by Meeks was not the technical violation committed by defendant. Meeks failed
to register after changing his residence and therefore, unlike in the present case,
law enforcement authorities did not have Meeks‘s correct address and
information.‘ ‖ (Nichols, supra, 176 Cal.App.4th at p. 436, quoting Carmony II,
supra, 127 Cal.App.4th at p. 1082, fn. 1.) The court in Nichols continued: ―It is

                                          33
this distinction that supports the sentence given in this case. Unlike the failure in
Carmony II, defendant‘s failure to register thwarted the fundamental purpose of
the registration law, thereby leaving the public at risk. ‗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.‘ ‖ (Nichols, supra, 176 Cal.App.4th at p. 437, quoting Carmony II,
supra, at p. 1072.)
       Reviewing the facts presented in the Nichols case, the court stated: ―Here,
for a period of over eight months, defendant‘s whereabouts were unknown. Even
his federal parole officer did not know where he was. . . . Such blatant disregard
of the registration act and complete undercutting of the act‘s purposes is a serious
offense.‖ (Nichols, supra, 176 Cal.App.4th at p. 437.) ―Defendant‘s failure to
register when he left Rocklin and his thwarting the purpose of the registration act
of being able to be located, coupled with the seriousness of his prior convictions
and his sustained criminality, all demonstrate his sentence was not grossly
disproportionate to his offense.‖ (Ibid.)
                               D. Crosby v. Schwartz
       Most recently, in Crosby v. Schwartz (9th Cir. 2012) 678 F.3d 784
(Crosby), another three-judge panel of the Ninth Circuit rejected a habeas corpus
petitioner‘s contention that the 26-year-to-life sentence imposed upon him under
the Three Strikes law violated the Eighth Amendment. In that case, the petitioner
had been convicted of both failing to annually update his sex offender registration
within five days of his birthday and of failing to register within five days of a
change of address, and the court, in rejecting the cruel and unusual punishment
claim, emphasized that unlike the circumstances in the prior Ninth Circuit decision
in Gonzalez, supra, 551 F.3d 875, the petitioner in Crosby had not committed ―a



                                            34
mere technical offense‖ but rather had intentionally ―impeded the police‘s ability
to find him for surveillance.‖ (Crosby, supra, at p. 794.)
                         IV. Application to Present Case
       In the briefs filed in this court, petitioner does not take issue with the
distinction that has been drawn in Carmony II, supra, 127 Cal.App.4th 1066,
Gonzalez, supra, 551 F.3d 875, Nichols, supra, 176 Cal.App.4th 428, and Crosby,
supra, 678 F.3d. 784, between two categories of defendants who, these cases hold,
may properly be treated differently for cruel and unusual punishment purposes.
Thus, on the one hand, these decisions conclude that a 25-year-to-life sentence
under the Three Strikes law is constitutional as applied to a defendant whose
current address is unknown to law enforcement authorities and who has failed to
comply with a crucial aspect of the sex offender registration requirements — such
as a defendant‘s failure to register a current address upon arrival in a jurisdiction.
On the other hand, the decisions conclude that such a sentence is unconstitutional
as applied to a defendant who has provided law enforcement authorities with
accurate information regarding his or her current address and has generally
demonstrated a good faith effort to comply with the sex offender registration
requirements but who, through a negligent oversight, has failed to affirmatively
confirm the continued accuracy of his or her existing registration information by
updating the information each year within five working days of his or her birthday.
       Indeed, in his opening brief, petitioner explicitly ―urges this Court to adopt
the reasoning of the Third District [which decided both Carmony II and Nichols].
The failure to re-register the same address in the same year does not thwart the
fundamental purpose of the registration law. It is a purely ‗passive, nonviolent,
regulatory offense that posed no direct or immediate danger to society.‘ (People v.
Nichols, supra, 176 Cal.App.4th at p. 435.) On the other hand, registration
violations that result in the police not knowing the whereabouts of a sexual

                                          35
offender are sufficiently grave to serve as a trigger crime for a third strike
sentence.‖
       In taking this position, of course, petitioner asserts that the present case
falls within the former, rather than the latter, category; that is, that the
circumstances of his offense are comparable to the circumstances in Carmony II
and Gonzalez rather than to those in Nichols and Crosby. In support of this
position, petitioner relies on the fact that the jury convicted him only of the charge
of failing to annually update his registration within five working days of his
birthday and acquitted him of the charge of failing to register upon his arrival in
the jurisdiction.
       In their answer brief, the People directly dispute petitioner‘s
characterization of the factual circumstances underlying the triggering offense,
asserting instead that this case ―concerns a petitioner who failed to register as a sex
offender upon his release from state prison, failed to update his registration
annually five months later, and failed to report to his parole agent at any time
following his release from state prison.‖ In advancing this position, the People
expressly rely upon the trial court‘s finding at the sentencing hearing that
petitioner had not registered as a sex offender upon his release from prison in
January 2001. The People assert that the trial court‘s finding demonstrates that,
with regard to the cruel and unusual punishment claim, this case is clearly
distinguishable from Carmony II and Gonzalez and is analogous to Nichols and
Crosby.
       Petitioner‘s reply brief does not respond to the People‘s reliance upon the
trial court‘s finding at the sentencing hearing, and, in continuing to argue that this
case is comparable to Carmony II and Gonzalez, relies exclusively on the
circumstances that the jury convicted petitioner only of the offense of failing to



                                           36
update his registration within five working days of his birthday, and acquitted
petitioner of the charge of failing to register on arrival in the jurisdiction.
       For the reasons discussed below, we conclude that the circumstances
surrounding petitioner‘s triggering offense distinguish this case from Carmony II
and Gonzalez and are more comparable to Nichols and Crosby.
       First, the fact that the 25-year-to-life sentence at issue in this case was
imposed on the basis of petitioner‘s conviction of the offense of failing to annually
update his sex offender registration within five working days of his birthday is not,
in itself, sufficient to establish that his cruel and unusual punishment claim is
equivalent to the cruel and unusual punishment claims that were sustained in
Carmony II and Gonzalez. None of the United States Supreme Court decisions
that has addressed an Eighth Amendment challenge to a lengthy sentence imposed
under a recidivist sentencing statute based upon the alleged excessiveness or
disproportionality of the sentence has focused upon the name or the elements of
the offense of which the defendant was convicted in the abstract or upon the least
culpable set of circumstances that potentially could be subjected to the punishment
prescribed by the penal statute in question. Instead, in determining whether a
lengthy sentence imposed under a recidivist sentencing statute is
unconstitutionally excessive or disproportionate, the governing decisions have
looked to the actual conduct that the defendant has engaged in and that has
resulted in the sentence that the defendant claims constitutes cruel and unusual
punishment, determining whether the challenged sentence constitutes cruel and
unusual punishment as applied to the specific circumstances involved in the case
at issue. (See, e.g., Rummel, supra, 445 U.S. 263 [considering specific value of
property underlying defendant‘s theft offenses]; Solem, supra, 463 U.S. 277
[same]; Ewing, supra, 538 U.S. 11 (plur. opn.) [same]; id. at p. 35 (dis. opn. of
Breyer, J.) [same].) Indeed, petitioner acknowledges in his briefing in this court

                                           37
that the governing high court precedent requires ―that the circumstances of the
triggering crime be assessed individually and on a case by case basis.‖
       The triggering offense at issue here — failure to annually update one‘s sex
offender registration within five working days of one‘s birthday — can be
committed under a wide range of circumstances. Some defendants — as in
Carmony II and Gonzalez — who have properly registered their current address
and whose overall conduct demonstrates a general good faith effort to comply with
the sex offender registration requirements may commit this offense through a mere
negligent oversight that does not adversely impact the fundamental purpose of the
sex offender registration regime. Other defendants, however, may violate this
statutory provision by intentionally failing to update their sex offender registration
within five working days of their birthday as part of a more general course of
conduct that demonstrates a deliberate general unwillingness to comply with the
sex offender registration requirements. In analyzing a cruel and unusual
punishment challenge to a sentence imposed upon a defendant convicted of this
offense, a court may not simply look to the nature of the offense in the abstract,
but must take into consideration all of the relevant specific circumstances under
which the offense actually was committed.
       In some instances, the relevant circumstances relating to the defendant‘s
commission of the offense in question may be clear and undisputed and thus may
pose no problem for a court‘s Eighth Amendment analysis. As the present case
illustrates, however, in other instances the facts surrounding the defendant‘s
commission of an offense may be vigorously contested and a general verdict
finding the defendant guilty of this offense may not establish the particular
circumstances under which the offense was committed.
       As petitioner points out, in this case not only was petitioner convicted only
of, and sentenced upon, the offense of failing to update his sex offender

                                          38
registration within five working days of his birthday, but the jury specifically
acquitted him of the separate charge of failing to register as a sex offender upon
his arrival in Palmdale. Petitioner contends that his acquittal of this separate
charge establishes that he had in fact properly registered as a sex offender at the
Palmdale address where he was arrested and thus that his conduct was comparable
to that of the defendants in Carmony II and Gonzalez. We disagree.
       Petitioner‘s argument on this point fails to take into account the numerous
federal and California decisions that uniformly hold that a jury verdict acquitting a
defendant of a charged offense does not constitute a finding that the defendant is
factually innocent of the offense or establish that any or all of the specific
elements of the offense are not true. (See, e.g., United States v. Watts (1997) 519
U.S. 148, 155 (Watts) [unless specific findings are made, ―the jury cannot be said
to have ‗necessarily rejected‘ any facts when it returns a general verdict . . .‖];
Dowling v. United States (1990) 493 U.S. 342, 349; People v. Towne (2008) 44
Cal.4th 63, 86 (Towne) [―an acquittal merely establishes the existence of a
reasonable doubt as to guilt. Unless specific findings are made, ‗the jury cannot
be said to have ―necessarily rejected‖ any facts when it returns a general verdict
. . . .‘ ‖]; In re Coughlin (1976) 16 Cal.3d 52, 59 [―[T]he fact of an acquittal
establishes only that the trier of fact entertained a reasonable doubt of defendant‘s
guilt‖]; In re Dunham (1976) 16 Cal.3d 63, 66-67.)
       As the summary of the evidence presented at trial set forth above (ante, at
p. 9) indicates, in challenging the prosecution‘s case with regard to the charge of
failing to register upon arrival in Palmdale, the defense focused upon the
recordkeeping and computer skills of the sheriff‘s department clerk, implying that
there might be doubt as to the accuracy of the sex offender registration records
kept by the Palmdale sheriff‘s office and reported to the Department of Justice.
The jury‘s verdict of acquittal may indicate that the jury viewed this line of

                                          39
defense counsel questioning and the clerk‘s responses to the questioning as raising
a reasonable doubt with regard to defendant‘s guilt of this charge. As the
numerous cases cited in the preceding paragraph establish, the jury‘s general
verdict of acquittal does not demonstrate that the jury determined that the evidence
established that petitioner had in fact registered as a sex offender upon his release
from prison, but only that the jury was of the view that the prosecution had not
proved the elements of the charged offense beyond a reasonable doubt.
       Although the jury in this case made no specific factual findings with regard
to whether petitioner had registered as a sex offender upon his arrival in Palmdale
in January 2001 after his release from prison, as noted above (ante, at pp. 11-12),
at the sentencing hearing in this matter after petitioner‘s conviction, the trial court
did indicate its view with regard to that factual question. With respect to
petitioner‘s testimony at trial that he had registered at the Palmdale sheriff‘s
department upon his release from prison and defense counsel‘s hypothesis that the
paperwork had been lost or not completed, the trial court stated: ―I don‘t know if
the jury accepted that testimony or not, but the court did not believe that testimony
for a moment. So my review of [the] evidence supports the fact that the only time
that the defendant ever made an effort to register was either when he was in prison
for a parole violation, or was taken to register by his parole agent. The defendant
is well aware of his obligation to register. He had been told about it on a number
of occasions. He is the one that chose to risk the sanctions for having failed to
register.‖ (Italics added.) The trial court relied upon its finding that petitioner had
intentionally failed to register in declining to strike any of petitioner‘s prior
convictions and imposing a 25-year-to-life sentence under the Three Strikes law,
specifically distinguishing the facts of this case from the facts involved in People
v. Cluff, supra, 87 Cal.App.4th 991. In Cluff, the Court of Appeal found that the
trial court had abused its discretion in failing to strike prior convictions so as to

                                           40
avoid a third strike sentence in a case in which the defendant had properly
registered his current address but had negligently failed to update his registration
within five working days of his birthday.
       As noted, the People contend that in evaluating petitioner‘s cruel and
unusual punishment claim this court may and should properly rely upon the trial
court‘s finding with regard to the circumstances underlying petitioner‘s offense,
and that, under the reasoning of Nichols, supra, 176 Cal.App.4th 428, and People
v. Meeks, supra, 123 Cal.App.4th 695, this court should reject petitioner‘s Eighth
Amendment challenge because petitioner, by intentionally failing to register and to
provide law enforcement authorities with his current residential address, engaged
in felonious conduct that was directly and substantially related to the antirecidivist
purpose of the Three Strikes law.
       To our knowledge, no prior decision has considered the question whether,
in analyzing a claim that a sentence constitutes cruel and unusual punishment
under the Eighth Amendment, a court may rely upon a factual finding regarding
the circumstances relating to the offense that is made by a trial court in the course
of a sentencing hearing.16 For the reasons that follow, we conclude that it is

16     In Gonzalez, supra, 551 F.3d 875, as in the present case, the jury convicted
the defendant of failing to annually update his sex offender registration within five
working days of his birthday but acquitted him of failing to register upon a change
of address. In addressing the defendant‘s Eighth Amendment claim, the court in
Gonzalez noted that the jury had acquitted the defendant of the failure-to-register-
on-change-of-address charge, and then stated that ―we adopt the jury‘s implicit
determination that Gonzalez was living at his registered address throughout the
relevant time period in this case.‖ (Gonzalez, supra, 551 F.3d at p. 884.)
       In relying upon the jury‘s acquittal in that manner, the court in Gonzalez
did not consider the United States Supreme Court decisions, discussed above
(ante, at p. 39), that explicitly hold that, unless the jury makes specific findings,
―the jury cannot be said to have ‗necessarily rejected‘ any facts when it returns a
general verdict.‖ (Watts, supra, 519 U.S. at p. 155; see, e.g., Dowling v. United
                                                           (footnote continued on next page)


                                          41
appropriate to rely upon such a trial court factual finding in deciding whether a
sentence that has been imposed in a particular case constitutes cruel and unusual
punishment in violation of the Eighth Amendment.
        As already noted, although the People relied upon the trial court‘s findings
regarding the circumstances of the offense in their answer brief, petitioner did not
discuss the effect of the trial court‘s findings in his reply brief. Prior to oral
argument, we specifically directed the parties to be prepared at oral argument to
discuss the question ―whether a trial court‘s factual finding at a sentencing hearing
regarding the circumstances relating to a petitioner‘s triggering offense may affect
the determination whether a sentence constitutes cruel and unusual punishment in
violation of the Eighth Amendment of the federal Constitution.‖ In response,
petitioner‘s counsel advised the court that at oral argument she would rely upon
the case of People v. Coelho (2001) 89 Cal.App.4th 861 (Coelho) in addressing
the court‘s question. At oral argument, petitioner‘s counsel maintained that in
evaluating an Eighth Amendment challenge to a sentence a court may only
consider circumstances of the triggering offense that the jury has expressly found
to be true beyond a reasonable doubt or that the trial court can determine from the
record that the jury must have found true beyond a reasonable doubt, arguing that,
as in Coelho, this requirement followed from the principles underlying a criminal
defendant‘s federal constitutional right to a jury trial as set forth in the line of


(footnote continued from previous page)

States, supra, 493 U.S. at p. 349.) Moreover, unlike in the present case, in
Gonzalez there is no indication that the trial court made any specific finding
regarding the circumstances of the offense at the sentencing hearing or at any
other time. Thus, the Gonzalez court had no occasion to address the legal issue
that is before us in this case.




                                           42
United States Supreme Court decisions beginning with Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi).17
       In Coelho, supra, 89 Cal.App.4th 861, the Court of Appeal, relying upon
the principles underlying the Apprendi line of decisions, concluded that the
provision of the Three Strikes law that requires a trial court to impose a
consecutive Three Strikes sentence for each current offense of which a defendant
is convicted that is ―not committed on the same occasion, and not arising from the
same set of operative facts‖ as another current offense (see §§ 667, subd. (c)(6),
(7), 1170.12, subd. (a)(6)(7)) should be interpreted to require a trial court to
impose consecutive sentences only where the jury expressly found (or, in light of
the record, must have found) beyond a reasonable doubt that its separate
convictions were based on offenses that were not committed on the same occasion
and did not arise from the same set of operative facts. (Coelho, supra, 89
Cal.App.4th at pp. 874-884.) In the absence of such an explicit or implied jury
finding, the court in Coelho held, a trial court is not required to impose
consecutive Three Strike sentences, and must exercise its ordinary discretion in
determining whether to impose consecutive or concurrent sentences. (Id. at
pp. 884-886.)18


17      Because the People relied upon the trial court‘s findings in their answer
brief, petitioner could and should have raised any objection to a reliance upon the
trial court‘s findings, including an objection based upon Apprendi, in his reply
brief. Accordingly, the provisions of Government Code section 68081 were fully
complied with.

18     The Court of Appeal decision in Coelho, supra, 89 Cal.App.4th 861,
preceded the United States Supreme Court decision in Oregon v. Ice (2009) 555
U.S. 160, where the high court held the Apprendi line of decisions does not apply
to factual findings that bear on the question whether multiple sentences are to be
imposed consecutively or concurrently. Because the issue is not presented here,
                                                            (footnote continued on next page)


                                          43
        As we explain, the Court of Appeal‘s decision in Coelho, supra, 89
Cal.App.4th 861, is inapposite because the Apprendi line of decisions does not
apply to the present context. Both the United States Supreme Court and this court
have expressly held that a trial court, in exercising its discretion in sentencing a
defendant on an offense of which he or she has been convicted, may take into
account the court‘s own factual findings with regard to the defendant‘s conduct
related to an offense of which the defendant has been acquitted, so long as the trial
court properly finds that the evidence establishes such conduct by a preponderance
of the evidence. (See, e.g., Watts, supra, 519 U.S. 148, 155-157; Towne, supra, 44
Cal.4th 63, 85-88.) In Towne, which was decided after Apprendi, we specifically
rejected the claim that the trial court‘s reliance upon its factual findings with
regard to a charge of which the defendant had been acquitted by a jury violated the
defendant‘s federal constitutional right to jury trial as established in Apprendi and
its progeny, explaining that ―[p]ermitting a judge to consider evidence of conduct
underlying counts of which the defendant was acquitted does not in any way
undermine the jury‘s role in establishing, by its verdict, the maximum authorized
sentence.‖ (Towne, supra, at p. 87.) And in United States v. Booker (2005) 543
U.S. 220, 244-268 (Booker), in an opinion by Justice Breyer that expressed the
views of a majority of the court on the relevant point, the high court took note of
its prior decision in Watts, supra, 519 U.S. 148 (Booker, at pp. 251-252), and
explained that the constitutional principle established by the Apprendi line of
decisions is not violated by a trial court‘s own factual findings regarding ―the real
conduct that underlies the [defendant‘s] criminal conviction‖ (Booker, at p. 250)

(footnote continued from previous page)

we express no view on the validity of the holding in Coelho in light of the high
court‘s subsequent decision in Ice.



                                          44
so long as, under the applicable statutory scheme, the findings do not mandate a
particular sentence but leave the trial court free to exercise sentencing discretion.
(Id. at pp. 259-265.)
       In the present case, as in Towne, supra, 44 Cal.4th 63, the trial court‘s
reliance upon its view of the facts underlying the charge of which petitioner was
acquitted, in exercising its discretion not to strike any of petitioner‘s prior serious
or violent felony convictions, did not violate petitioner‘s constitutional right to
jury trial as set forth in Apprendi and its progeny. The trial court‘s finding in this
regard did not mandate a particular sentence under the Three Strikes law; the court
simply relied upon its factual determination regarding petitioner‘s course of
conduct in exercising the discretion afforded by the Three Strikes statutory scheme
in choosing a sentence within the maximum term statutorily authorized by the
jury‘s verdict. (See, e.g., Southern Union Co. v. United States (2012) ___ U.S.
___, ___ [183 L.Ed.2d 318, 326] [under Apprendi, ―judges may exercise discretion
in sentencing‖ so long as they do not ― ‗inflic[t] punishment that the jury‘s verdict
alone does not allow‘ ‖].)
       The high court‘s Eighth Amendment precedents provide no support for a
rule that, in a case challenging the constitutional validity of a sentence imposed
under a recidivist sentencing statute such as the Three Strikes law, would limit a
court‘s consideration of the actual circumstances of a defendant‘s offense only to
facts that have been found by the jury or proved beyond a reasonable doubt.
Inasmuch as the governing federal decisions establish that it is constitutionally
permissible for a trial court, applying a preponderance of the evidence standard, to
consider the court‘s own factual findings regarding the real conduct underlying a
defendant‘s conviction in exercising its statutorily authorized discretion in
choosing an appropriate sentence (see Watts, supra, 519 U.S. at p. 157; accord,
Booker, supra, 543 U.S. at p. 261), there is no reasonable basis to suggest that the

                                           45
Eighth Amendment should be interpreted to preclude a court from considering
such findings in evaluating a cruel and unusual punishment challenge to that
sentence and, instead, to require a trial or appellate court to adopt a factually
unrealistic view of the circumstances of the offense when reviewing an Eighth
Amendment claim. Indeed, the limitation proposed by petitioner is particularly
unpersuasive given the high court‘s repeated emphasis on the extremely narrow
scope of the Eighth Amendment‘s proportionality principle in this context. (See,
e.g., Ewing, supra, at p. 30 [―Ewing‘s is not ‗the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads to an
inference of gross disproportionality‘ ‖]; Andrade, supra, 538 U.S. at p. 77 [―The
gross disproportionality principle reserves a constitutional violation for only the
extraordinary case‖]). Accordingly, petitioner‘s reliance upon Apprendi and its
progeny is untenable.19


19      Contrary to the concurring opinions, we conclude that the prior decisions of
the United States Supreme Court and this court that address and explain the scope
and limited reach of the Apprendi line of cases clearly establish that petitioner‘s
Apprendi claim lacks merit. In a case such as this, in which the governing
authorities make clear — as Justice Liu‘s concurring opinion acknowledges (conc.
opn. of Liu, J., post, p. 3) — that Apprendi does not preclude a trial court‘s
findings with regard to the circumstances of an offense from playing a crucial role
in determining the sentence that is actually imposed upon the defendant within the
statutory range of punishment authorized by the jury‘s verdict, it is simply
illogical, and inconsistent with the high court‘s reasoning and conclusion in
Ewing, supra, 538 U.S. 11, to maintain that Apprendi may or should be interpreted
to preclude a court from looking to those trial court findings in comparing, for
Eighth Amendment purposes, the gravity of the defendant‘s criminal conduct with
the severity of the punishment imposed. It is worth recalling that it was
petitioner‘s request that the trial court strike several of his prior convictions for
purposes of sentencing so as to bring him outside the reach of the Three Strikes
law that led to the trial court‘s finding with respect to the circumstances of the
offense. Just as such a trial court finding would be relevant in determining the
actual gravity of a defendant‘s conduct when the finding is favorable to the
                                                            (footnote continued on next page)


                                          46
        Under California‘s Three Strikes law, the sentence that is actually imposed
upon a defendant in a particular case is dependent not only upon the nature and
number of the defendant‘s prior criminal convictions and whether he or she is
convicted in the current prosecution of a felony offense, but also upon the
prosecutor‘s exercise of prosecutorial discretion in determining how many prior
convictions to charge in the case. (§§ 667, subd. (f)(2), 1170.12, subd. (d)(2).) In
addition, and most significantly for the issue before us in this case, the sentence
that is actually imposed under the Three Strikes law is frequently dependent upon
the trial court‘s exercise of discretion in determining whether, in furtherance of

(footnote continued from previous page)

defendant, logic and fairness dictate that such a finding is similarly relevant when
the finding is unfavorable to the defendant. Nothing in Ewing or Harmelin, supra,
501 U.S. 957 provides any support for petitioner‘s position, and the hypothetical
questions posed by Justice Liu‘s concurring opinion — describing issues not
presented by this case — simply ignore the limits on the Apprendi line of cases set
forth in the controlling precedent.
        Furthermore, although Justice Liu‘s concurring opinion asserts that the
court‘s opinion ―does not actually resolve petitioner‘s Apprendi claim‖ (conc. opn.
of Liu, J., post, pp. 2, 8), that assertion is simply incorrect. Justice Liu‘s
concurring opinion maintains that ―[l]ogically, a rejection of petitioner‘s claim on
the merits must rest on a conclusion (1) that his intentional refusal to register is not
a fact essential to the legality of his sentence under the Eighth Amendment or (2)
that even if it were such an essential fact, Apprendi would not apply.‖ (Conc. opn.
of Liu, J., post, at pp. 3-4.) But the concurring opinion‘s effort to reduce our
rejection of petitioner‘s argument to those two alternate conclusions incorrectly
frames the issue. We do not have to decide whether petitioner‘s ―intentional
refusal to register [is or] is not a fact essential to the legality of his sentence under
the Eighth Amendment‖ in order to resolve petitioner‘s Apprendi claim, because
(1) petitioner has conceded that there is no Eighth Amendment violation if his
refusal to register was intentional (see, ante, pp. 35-36), (2) the trial court found
that petitioner‘s refusal to register was intentional, and (3) this opinion holds that
the trial court‘s finding in this regard may properly be considered in an Eighth
Amendment challenge and that such consideration does not violate Apprendi.
Thus, this opinion fully resolves petitioner‘s Apprendi claim.



                                           47
justice, to strike any of the serious or violent prior convictions that have been
charged by the prosecutor and, if so, how many prior convictions to strike. (See
generally People v. Superior Court (Romero), supra, 13 Cal.4th 497; People v.
Williams (1998) 17 Cal.4th 148.) Among the factors that a trial court may
properly consider in determining whether to strike a prior conviction under the
Three Strikes law are ―the nature and circumstances of the defendant‘s present
felonies . . . .‖ (People v. Williams, supra, at p. 161.) Accordingly, a trial court‘s
factual determinations with regard to the nature and circumstances of a
defendant‘s triggering offense may play a significant role in determining the
sentence that is actually imposed upon the defendant under the Three Strikes law.
(See, e.g., People v. Garcia (1999) 20 Cal.4th 490, 499 (Garcia) [―A court might
. . . be justified in striking prior conviction allegations with respect to a relatively
minor current felony, while considering those prior convictions with respect to a
serious or violent current felony‖].)
       In light of this statutory scheme, a court that is evaluating whether the
sentence that has been imposed upon a defendant under the Three Strikes law
constitutes cruel and unusual punishment in violation of the Eighth Amendment
must be able to consider and take into account the trial court‘s factual findings
regarding the circumstances related to the triggering offense. In the present case,
for example, the trial court‘s comments distinguishing the facts of the present case
from the facts involved in People v. Cluff, supra, 87 Cal.App.4th 991, suggest that
if the trial court had found that petitioner had registered his current Palmdale
address upon his release from prison in January 2001 and had simply negligently
failed to update that accurate registration within five working days of his May
2001 birthday, the trial court may not have imposed the 25-year-to-life sentence
that petitioner now challenges. Thus, in order to understand the actual criminal
conduct upon which a sentence that has been imposed under the Three Strikes law

                                           48
is based, a court, in evaluating a claim of gross disproportionality under the Eighth
Amendment, must take into account a trial court‘s factual findings regarding the
circumstances of the triggering offense.
       Under section 1385, although a trial court is required to state on the record
its reasons for striking a prior conviction (§ 1385, subd. (a)), there is no similar
statutory requirement of an on-the-record statement of reasons when a court
declines to strike a prior. (See In re Large (2007) 41 Cal.4th 538, 550.) But
when, as in the present case, a trial court explicitly explains its reasons for
declining to strike prior convictions for sentencing purposes, it is appropriate to
rely upon the trial court‘s reasons and findings in evaluating petitioner‘s Eighth
Amendment claim. (Accord, Carmony I, supra, 33 Cal.4th at pp. 373, 378-379
[relying upon trial court‘s statement of reasons in finding that court did not abuse
its discretion under § 1385 in declining to strike priors]; Garcia, supra, 20 Cal.4th
at pp. 494-503 [relying upon trial court‘s statement of reasons in finding that court
did not abuse its discretion in declining to strike priors with respect to one count
but in striking priors with respect to a separate count].)
       In the present case, in view of the evidence presented at trial, the record is
clearly adequate to support the trial court‘s finding that petitioner failed to register
at the Palmdale sheriff‘s department upon his release from prison in January 2001.
As we have seen, the clerk in charge of registering all sex offenders at the
Palmdale sheriff‘s department testified that she was positive that petitioner had not
registered in Palmdale, and one of the arresting law enforcement officers testified
that, at the time of his arrest, petitioner admitted that he had failed to register upon
his release from prison because ―he wanted to try to get by through life without
contact with the sheriff‘s department or parole.‖ Further, although petitioner
denied making the statement attributed to him by the arresting officer and testified
that he had registered in Palmdale upon his release from prison in January 2001

                                           49
and had received a document attesting to that registration which he kept in the
nightstand next to his bed, petitioner admitted that, at the time of his arrest, he did
not inform the officers that he had in fact registered in the Palmdale sheriff‘s
department or indicate that the documentation of the registration could be found in
his nightstand. The arresting officers testified that although other important papers
belonging to defendant were found in the nightstand, no documentation of his
registration as a sex offender was found there. Finally, in addition to the evidence
presented at trial, documentation submitted by the prosecution at the sentencing
hearing established that, although he was required to do so, petitioner had failed to
contact his parole officer upon his release from prison in January 2001. Under
these circumstances, the record is unquestionably adequate to support the trial
court‘s rejection of petitioner‘s trial testimony that he had registered as a sex
offender upon his arrival in Palmdale in January 2001.
       In view of the trial court‘s findings at the sentencing hearing, the
circumstances of the triggering offense in this case are clearly distinguishable
from the circumstances that underlay the decisions in Carmony II and Gonzalez.
Because the trial court found that petitioner deliberately failed to register as a sex
offender even though he knew he had an obligation to do so, petitioner‘s triggering
offense demonstrated that, notwithstanding the significant punishment that he had
incurred as a result of his prior serious and violent felony convictions, petitioner
was still intentionally unwilling to comply with important legal requirements
prescribed by the state‘s criminal laws. As a consequence, petitioner‘s current
criminal conduct and conviction clearly bore a rational and substantial relationship
to the antirecidivist purposes of the Three Strikes law. (Accord, In re Large,
supra, 41 Cal.4th at p. 552.)
       Furthermore, as the United States Supreme Court explained in Ewing,
supra, 538 U.S. 11, in determining the gravity of petitioner‘s conduct in evaluating

                                          50
an Eighth Amendment challenge to a sentence imposed under a recidivist
sentencing statute, we must consider not only petitioner‘s triggering offense but
also the nature and extent of petitioner‘s criminal history. (Ewing, supra, at p. 29
[―In weighing the gravity of Ewing‘s offense, we must place on the scales not only
his current felony, but also his long history of felony recidivism‖].) In light of the
particularly heinous nature of petitioner‘s prior criminal activity (see, ante, pp. 5-6
& fn. 3), petitioner‘s present offense ― reflecting a deliberate decision by
petitioner to refuse to comply with an important legal obligation ― may properly
be viewed as an indicator of potentially significant future dangerousness. Taking
into account both the circumstances of petitioner‘s triggering offense and
petitioner‘s very serious criminal history, we conclude that the 25-year-to-life
sentence imposed upon petitioner does not constitute cruel and unusual
punishment in violation of the Eighth Amendment.


                                       V. Disposition
       The Court of Appeal judgment, denying the petition for habeas corpus, is
affirmed.
                                                   CANTIL-SAKAUYE, C. J.


WE CONCUR:

KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.




                                          51
                 CONCURRING OPINION BY WERDEGAR, J.



       I concur in the majority opinion except for its response to petitioner‘s
belated claim under Apprendi v. New Jersey (2000) 530 U.S. 466, which petitioner
in my view has forfeited by failing to raise it below. I share Justice Liu‘s concern
that the majority opinion, in choosing to address Apprendi‘s application to
petitioner‘s sentence, does not fully respond to petitioner‘s argument. (See conc.
opn. of Liu, J., post.)


                                                  WERDEGAR, J.




                                          1
                      CONCURRING OPINION BY LIU, J.



       I join the opinion of the court except for its treatment of petitioner‘s claim
that the Sixth Amendment right to a jury trial, as interpreted by Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi) and related precedent, constrains our
consideration of the circumstances of his triggering offense. (Maj. opn, ante, at
pp. 42–47.) As explained below, I would not decide the merits of petitioner‘s
claim and instead would deem it forfeited.
       Petitioner was charged with two felony offenses: failure to register as a sex
offender upon arrival in a jurisdiction and failure to update his sex offender
registration within five working days of his birthday. The jury acquitted petitioner
of the former offense and convicted him of the latter. Before the sentencing
hearing, petitioner asked the trial court to strike at least two of his three prior
felony convictions. He relied on the assertedly minor and nonaggravated nature of
his conviction for failing to update his registration and argued that, in his case, a
25-year-to-life sentence would constitute cruel and unusual punishment in
violation of the Eighth Amendment. In denying this request, the trial court relied
in significant part on its finding that petitioner had intentionally failed to register
upon his arrival in Palmdale, despite the jury‘s acquittal of petitioner on that
count. The trial court subsequently imposed a 25-year-to-life sentence.


                                            1
       Petitioner did not object to the trial court‘s finding or to the trial court‘s
reliance on that finding in denying his request to strike his prior convictions. Nor
did petitioner raise an Apprendi claim in the Court of Appeal or in any of his
briefing in this court — not even after the Attorney General, in her answer brief,
cited the trial court‘s finding as a reason to deny petitioner relief. Only after this
court directed the parties to be prepared to discuss at oral argument the
significance of the trial court‘s finding to the Eighth Amendment challenge did
petitioner raise his Apprendi claim. No lower courts have previously considered
the issue. Accordingly, I would reject petitioner‘s claim as forfeited. (People v.
Heard (2003) 31 Cal.4th 946, 972, fn. 12.)
       Although today‘s opinion considers the merits of petitioner‘s Apprendi
claim, its discussion does not actually resolve that claim despite the court‘s
assertion to the contrary (maj. opn., ante, at p. 47, fn. 19). The court says ―the
Apprendi line of decisions does not apply to the present context. Both the United
States Supreme Court and this court have expressly held that a trial court, in
exercising its discretion in sentencing a defendant on an offense of which he or she
has been convicted, may take into account the court‘s own factual findings with
regard to the defendant‘s conduct related to an offense of which the defendant has
been acquitted, so long as the trial court properly finds that the evidence
establishes such conduct by a preponderance of the evidence. (See, e.g., [United
States v.] Watts [(1987)] 519 U.S. 148, 155-157; [People v.] Towne [(2008)] 44
Cal.4th 63, 85–88.)‖ (Maj. opn., ante, at p. 44.) According to the court, ―the
constitutional principle established by the Apprendi line of decisions is not
violated by a trial court‘s own factual findings regarding ‗the real conduct that
underlies the [defendant‘s] criminal conviction‘ ([United States v. Booker (2005)
543 U.S. 220, 250]) so long as, under the applicable statutory scheme, the findings
do not mandate a particular sentence but leave the trial court free to exercise

                                            2
sentencing discretion. (Id. at pp. 259-265.)‖ (Maj. opn., ante, at pp. 44–45.)
These precedents ―clearly establish that petitioner‘s Apprendi claim lacks merit,‖
the court says, because the trial court‘s finding of petitioner‘s intentional failure to
register ―did not mandate a particular sentence under the Three Strikes law; the
court simply relied upon its factual determination regarding petitioner‘s course of
conduct in exercising the discretion afforded by the Three Strikes statutory scheme
in choosing a sentence within the maximum term statutorily authorized by the
jury‘s verdict.‖ (Id. at pp. 45, 46, fn. 19.)
       The court is undoubtedly correct that under Watts, Towne, and Booker, a
trial court may consider its own findings in exercising its sentencing discretion
within the maximum term lawfully authorized by the jury‘s verdict. But those
cases did not consider, much less answer, whether Apprendi‘s requirement of a
jury finding applies to a fact essential to the legality of a sentence under the Eighth
Amendment. Petitioner‘s claim is not that Apprendi constrains the trial court‘s
sentencing discretion within the lawfully authorized range; of course it doesn‘t.
His claim is that Apprendi constrains the trial court‘s sentencing discretion under
the Three Strikes law when a 25-year-to-life sentence would exceed the lawful
maximum — that is, it would violate the Eighth Amendment — but for the finding
of an essential fact, namely, his intentional failure to register upon his arrival in
Palmdale. In Towne, we said that Apprendi applies ― ‗to a fact that is ―legally
essential to the punishment‖ [citation], that is, to ―any fact that exposes a
defendant to a greater potential sentence‖ than is authorized by the jury‘s verdict
alone [citation].‘ ‖ (People v. Towne, supra, 44 Cal.4th at p. 86.) That is what
petitioner is arguing here: because a 25-year-to-life sentence would be
unconstitutional but for a finding that he intentionally refused to register, that
finding must be made by a jury beyond a reasonable doubt.



                                            3
       Logically, a rejection of petitioner‘s claim on the merits must rest on a
conclusion (1) that his intentional refusal to register is not a fact essential to the
legality of his sentence under the Eighth Amendment or (2) that even if it were
such an essential fact, Apprendi would not apply.
       As to the first possibility, the court explains that petitioner‘s intentional
failure to register is a major factor supporting its ―conclu[sion] that the
circumstances surrounding petitioner‘s triggering offense distinguish this case
from [People v. Carmony (2005) 127 Cal.App.4th 1066] and Gonzalez [v. Duncan
(9th Cir. 2008) 551 F.3d 875] and are more comparable to [People v.] Nichols
[(2009) 176 Cal.App.4th 428] and Crosby [v. Schwartz (9th Cir. 2012) 678 F.3d
784].‖ (Maj. opn., ante, at p. 37; see id. at pp. 37–40.) But the court does not say
one way or the other whether the fact of petitioner‘s intentional failure to register
is determinative of the Eighth Amendment issue. (See id. at p. 51 [―Taking into
account both the circumstances of petitioner‘s triggering offense and petitioner‘s
very serious criminal history, we conclude that the 25-year-to-life sentence
imposed upon petitioner does not constitute cruel and unusual punishment in
violation of the Eighth Amendment.‖].)
       There would be no need to conclude that petitioner‘s intentional failure to
register is not a fact essential to the legality of his sentence under the Eighth
Amendment if the court were to conclude instead that even if that fact were
essential, Apprendi still does not apply. But today‘s opinion does not say that
either, and the issue is not an easy one.
       The main argument for Apprendi‘s inapplicability in this context seems to
be that Apprendi applies to situations where the facts authorizing a particular
sentence are legislatively specified. (See Apprendi, supra, 530 U.S. at p. 490
[―Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and

                                            4
proved beyond a reasonable doubt.‖ (Italics added.)].) In the Eighth Amendment
context, by contrast, the facts relevant to the legality of a sentence are specified by
a court. It is certainly plausible that the Apprendi principle applies only to those
facts that a legislature enacting the majority will, and not a court interpreting the
Eighth Amendment, deems essential to authorize a particular maximum sentence.
       But there are serious counterarguments. In Ring v. Arizona (2002) 536 U.S.
584 (Ring), the United States Supreme Court held that aggravating factors required
for imposition of the death penalty must be found by a jury, not by a judge.
Although the aggravating factors in Ring were statutorily specified, they were
specified by statute only because the high court‘s Eighth Amendment
jurisprudence had required legislatures to specify such factors to distinguish death-
eligible from death-ineligible crimes. (See id. at p. 606.) Justice Scalia, who has
long disagreed with that aspect of the high court‘s Eighth Amendment
jurisprudence, observed that Ring posed for him the following ―quandary‖:
―Should I continue to apply the last-stated principle when I know that the only
reason the fact is essential is that this Court has mistakenly said that the
Constitution requires state law to impose such ‗aggravating factors‘?‖ (Id. at
pp. 610–611 (conc. opn. by Scalia, J.).) Justice Scalia resolved his quandary by
joining the Ring majority in applying Apprendi. In light of Ring, it is debatable
whether the Apprendi principle extends not only to statutorily prescribed minimum
facts, but also to minimum facts with constitutional origins.
       Take another example. The high court in Enmund v. Florida (1982) 458
U.S. 782, 797 held that the Eighth Amendment forbids imposition of the death
penalty on a defendant ―who does not himself kill, attempt to kill, or intend that a
killing take place or that lethal force will be employed.‖ (See also Tison v.
Arizona (1987) 481 U.S. 137, 158 [concluding that ―major participation in the
felony committed, combined with reckless indifference to human life,‖ satisfied

                                           5
Enmund].) Assume there are three states with the following laws. The first state,
even before Enmund, had adopted a statute requiring a finding that a defendant
killed, attempted to kill, or intended that a killing occur in order to render the
defendant death-eligible. The second, in response to Enmund, enacted an identical
statute on the assumption that it was required to do so. The third enacts no
legislation but, under Enmund, still may not impose the death penalty on a
defendant who did not kill, attempt to kill, or intend a killing occur. The statutory
findings required by the first two states are undoubtedly subject to Apprendi. Can
it really be that the same findings in the third state are not, simply because the
third state has not implemented Enmund through a legislative enactment? Ring
emphasized that ―the dispositive question . . . ‗is one not of form, but of effect.‘ ‖
(Ring, supra, 536 U.S. at p. 602, quoting Apprendi, supra, 530 U.S. at p. 494.)
And although Cabana v. Bullock (1986) 474 U.S. 376 held that the Sixth
Amendment does not require an Enmund finding to be made by a jury, that case
preceded Apprendi and Ring. (See Ring, supra, 536 U.S. at pp. 598, 609 [finding
Walton v. Arizona (1990) 497 U.S. 639 ―irreconcilable‖ with Apprendi and noting
that ―Walton drew support from Cabana v. Bullock‖].)
       Booker also suggests that the applicability of Apprendi‘s principle is not
limited to legislatively prescribed facts that are essential to punishment. There, the
high court considered whether the Apprendi principle applied to the federal
sentencing guidelines. The Attorney General argued that Apprendi did not apply
to the guidelines because, among other reasons, they were promulgated by the
United States Sentencing Commission, not by Congress. (United States v. Booker,
supra, 543 U.S. at p. 237 (Booker); see Mistretta v. United States (1989) 488 U.S.
361, 368 [U.S. Sentencing Com. is an independent agency located in the federal
judicial branch].) The high court rejected this argument as ―lack[ing]
constitutional significance.‖ (Booker, at p. 237.) It was sufficient for purposes of

                                           6
Apprendi that the guidelines set forth facts essential to imposing particular
sentences. (Booker, at p. 238.) ―Regardless of whether Congress or a Sentencing
Commission concluded that a particular fact must be proved in order to sentence a
defendant within a particular range,‖ the fact must be found by a jury beyond a
reasonable doubt. (Ibid.)
       The high court in Booker expressly and approvingly noted that its
conclusion went beyond the four corners of Apprendi: ―The Government correctly
notes that in Apprendi we referred to ‗ ―any fact that increases the penalty for a
crime beyond the prescribed statutory maximum . . . .‖ ‘ Brief for United States 15
(quoting Apprendi, 530 U.S., at 490 (emphasis in Brief for United States)). The
simple answer, of course, is that we were only considering a statute in that case
. . . . [¶] More important than the language used in our holding in Apprendi are the
principles we sought to vindicate. Those principles are unquestionably applicable
to the Guidelines. They are not the product of recent innovations in our
jurisprudence, but rather have their genesis in the ideals our constitutional tradition
assimilated from the common law. [Citation.] The Framers of the Constitution
understood the threat of ‗judicial despotism‘ that could arise from ‗arbitrary
punishments upon arbitrary convictions‘ without the benefit of a jury in criminal
cases. The Federalist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton). . . .
Regardless of whether the legal basis of the accusation is in a statute or in
guidelines promulgated by an independent commission, the principles behind the
jury trial right are equally applicable.‖ (Booker, supra, 543 U.S. at pp. 238–239.)
Booker further suggests the absence of any bright line limiting Apprendi‘s
applicability to essential facts established by a legislative enactment.
       The entirety of the court‘s discussion of petitioner‘s Apprendi claim is
premised on the notion that a 25-year-to-life sentence is a lawfully authorized
maximum sentence for petitioner‘s third-strike felony. The court‘s embrace of

                                          7
that premise is revealed in its statement that ―[j]ust as such a trial court finding
[concerning the circumstances of the offense] would be relevant in determining
the actual gravity of a defendant‘s conduct when the finding is favorable to the
defendant, logic and fairness dictate that such a finding is similarly relevant when
the finding is unfavorable to the defendant.‖ (Maj. opn., ante, at pp. 46–47,
fn. 19.) That statement is only true when a trial court is exercising its discretion to
choose a sentence up to and including the lawfully authorized maximum.
However, petitioner‘s Apprendi claim fundamentally rests on the proposition that
a 25-year-to-life sentence, though authorized by the Three Strikes law, would be
unauthorized by the Eighth Amendment but for the fact that petitioner
intentionally failed to register upon his arrival in Palmdale. Because the court
neither disagrees with that proposition nor finds the Apprendi principle
inapplicable despite that proposition, today‘s opinion does not actually resolve
petitioner‘s Apprendi claim.
       In sum, petitioner raised the Apprendi claim only at the last minute when
prompted to do so by this court. Accordingly, I would reject the claim as forfeited
instead of considering it on the merits. In all other respects, I join the opinion of
the court.


                                                   LIU, J.




                                           8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Coley
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 187 Cal.App.4th 138
Rehearing Granted

__________________________________________________________________________________

Opinion No. S185303
Date Filed: August 30, 2012
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Dorothy L. Shubin

__________________________________________________________________________________

Counsel:

Nancy L. Tetreault, under appointment by the Supreme Court, for Petitioner Willie Clifford Coley.

Michael Vitiello, Patrick Blood and Gary Mandinach for California State Public Defenders Association as
Amicus Curiae on behalf of Petitioner Willie Clifford Coley.

Richard Such for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Petitioner Willie
Clifford Coley.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Victoria B.
Wilson, Janet E. Neeley and Noah P. Hill, Deputy Attorneys General, for Respondent State of California.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Nancy L. Tetreault
346 No. Larchmont Blvd., Suite100
Los Angeles, CA 90004
(310) 832-6233

Noah P. Hill
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-8884
