COLEY (WILLIE CLIFFORD) ON H.C.Petitioner’s Reply Brief on the MeritsCal.November 17, 2011SUPREME COURT IN THE SUPREME COURT FILED ~ NOV 17 201 Frederick K. Ohirich Clerk OF THE STATE OF CALIFORNIA “ Deputy In re, Supreme Court No. ; WILLIE CLIFFORD COLEY S185303 oe a FILED WITH PERMISSION On Habeas Corpus. Los Angeles County Superior Court Case No. MA022987 The Honorable Dorothy Shubin, Judge Presiding APPELLANT’S REPLY BRIEF ON THE MERITS NANCYL. TETREAULT Attorney at Law State Bar No. 150352 346 No. Larchmont Blvd., Suite 100 Los Angeles, California 90004 Telephone: (310) 832-6233 Attorney for Appellant TABLE OF CONTENTS INTRODUCTION 2.0...eeennn e nee 1 ARGUMENT 1.0... 2...ecceeeee ene eens 4 APPELLANT’S INDETERMINATE LIFE SENTENCE AS A THIRD STRIKE OFFENDER VIOLATED THE STATE AND FEDERAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT, WHERE APPELLANT’S THIRD STRIKE WAS BASED SOLELY ON HIS FAILURE TO UPDATE HIS ANNUAL REGISTRATION REQUIREMENTAS A SEXUAL OFFENDER4 A. Introduction ....... 0.0... 00. ccc ee ee ee eee eee 4 B. Appellant’s Sentence Violated the Eight Amendment .... 6 C. Appellant’s Sentence Constituted Cruel and Unusual Punishment Under the California Constitution ........ 10 Lecce cece eee e eee e een bebe e eee eee e eee e ene 10 D. The Reasoning ofPeople v. Carmony, People v. Nichols, and Inre Lynch Establishes the Rule that Should be Appliedin this CAaS€ ooo ccc ec ec ene eee ee nnn eee eee 15 CONCLUSION 2... 0...cece nen eee ena 18 CERTIFICATE OF WORD COUNT 2.2.0.0... 0.00 bcc cnee 19 TABLE OF AUTHORITIES Cases Ewing v. California (2003) 538 U.S. 11...eee 9 Gonzalez v. Duncan (2008) 551 F.3d 875 20...eeees 9 Graham v. Florida (2010) U.S. [130 8. Ct. 2011] «6... eee eee, 9 Harmelin v. Michigan (1991) 501 U.S.957 10... ee eee 2, 4, 8,11, 18 In re Lawrence (2008) 44 Cal.4th 1181 ............... 0.020000. 2,4, 11, 18 In re Lynch (1972) 8 Cal.3d 410 2.00. eecee 3, 4, 8, 9, 10 In re Shaputis (2008) 44 Cal.4th 1241 20...ceene 12 Lockyer v. Andrade (2003) 538 U.S.63 ......cecceeceeeceeeceeeteees 6,9 People v. Carmony (2005) 127 Cal.App.4th 1066... 2, 4-6, 9, 11, 12, 15, 17, 18 People v. Cline (1998) 60 Cal.App.4th 1327 2.0.0... eeeeee 12 People v. Cluff(2001) 87 Cal.App.4th 991 2.0...eee eee 4 People v. Dillon (1983) 34 Cal.3d 441 0.0... 0. eeeee ene 17 People v. Dillon (1983) 34 Cal.3d 441.) 2.0.0.0... cee eee eee ee 5, 10, 11, 17 People v. Gutierrez (2009) 174 Cal.App.4th 515 2... eee eee 11 People v. Haller (2009) 174 Cal.App.4th 1080 ... 0.0... 0.0 eee eee eee 12 People v. Nichols (2009) 176 Cal.App.4th 428 2.0... ce eee eee 12 People v. Nichols (2009) 176 Cal.App.4th 428 ...............00-5 12, 15, 16 People v. Pearson (2008) 165 Cal.App.4th 740 2.0... 0.0... cee eee ee eee 12 il People v. Sipe (1995) 36 Cal.App.4th 468.0... 00... eeeee 2,5 People v. Strong (2001) 87 Cal.App.4th 328.0... 2... eee ee eee 5 People v. Sullivan (2007) 151 Cal.App.4th 524 .......... 0.00.00. -00085 11 People v. Williams (2004) 34 Cal.4th 397 2.2... 0... ccc eee eee 5 Rummelv. Estelle (1980) 445 U.S. 263 0.0...ceeee 8 Solem v. Helm (1983) 463 U.S.277 0. ccccee eee 3, 4, 8-10 Statutes Cal. Const., art. 1,8 17 00.eencette eens 4 Pen. Code, § 290 21...ceceete e nen ene 1,2, 4, 8, 18 Pen. Code, § 667 2.0...eetetn een neas 2,5, 7 ill IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re, Supreme Court No. WILLIE CLIFFORD COLEY $185303 On Habeas Corpus. Los Angeles County Superior Court Case No. MA022987 The Honorable Dorothy Shubin, Judge Presiding APPELLANT’S REPLY BRIEF ON THE MERITS INTRODUCTION Respondentincorrectly contends that the imposition of an indeterminate life sentence complies with the fairness principles of the prohibition against cruel and unusual punishment, where appellant failed to discharge his obligation to re-register his residence address within five days of his birthday, even though heregistered his addressat the beginning of the calendar year and his residence address had not changed. (AnswerBrief (“AB”) 9-10; Pen. Code, § 290, subd. (a)(1)(A).)' According to respondent, ' Statutory references are to the Penal Code unless otherwise indicated. 1 appellant’s registration error was not merely a technical violation because it breached the conditions of his parole. Respondent further argues that, even if this were not true, appellant’s extensive criminalhistory justifies a life sentence. (AB 9-10.) Thus, respondent would have this Court add a harmless error standard to the cruel and unusual punishment determination. The crimetriggering appellant’s indeterminate life sentence washis unintended technical violation of not re-registering the same address twice in a single year. (I CT 250.) Appellant’s violation constituted the mistaken failure to comply with a highly complicated registration statute and amounted to a purely regulatory offense. (People v. Carmony (2005) 127 Cal.App.4th 1066; accord Gonzalez v. Duncan (2008) 551 F.3d 875; see § 290.) The fact appellant was arrested at the address he registered at the beginning of the calendar year provedhis violation resulted in no actual harm to public safety. Thelegislative purpose underlying the Three Strikes law is to deter recidivism. (§ 667, subd. (b).) Sentences that bear a rational relationship to this purpose have withstood constitutional challenge. (People v. Sipe (1995) 36 Cal.App.4th 468, 476.) The triggering offense in this case did not fit within the legislative purpose of the Three Strikes law because appellant did not intend to commit a crime. His third strike resulted from a mistake rather than habitual criminal conduct. Because ofthis distinction, his indeterminate life sentence was not tethered to a legitimate state purpose. This fundamental defect is not overcome by appellant’s extensive criminal history because the record does not establish that appellant presents a current risk of reoffending. The Third District’s decision in People v. Carmony, supra, 127 Cal. App.4th 1066 rejected a nearly identical technical violation as the basis for imposing an indeterminate life sentence under the Three Strikes law based on the fact the violation did not advancethe statute’s stated purpose. (/d., at p. 1085.) It is not possible to affirm the sentence in this case without reversing the reasoning of Carmony. The Carmony decisionstrikes the appropriate balance between California’s Three Strikes law and the constitutional prohibition against cruel and unusual punishment. It should be adoptedasthe rule in this case. Underthe individual circumstancesofthis case, the felony triggering appellant’s indeterminate life sentence did not advance the purpose behind the Three Strikes law because appellant intended no crime. This alone provides sufficient grounds to reverse the sentence. The fact appellant has an extensive criminal history does not overcomethis defect. Appellant’s last crime occurred in 1988. (I RT 231-238.) He has been crimefree since that date. There is nothing in the record establishing that appellant poses a currentrisk of harm to public safety. Consequently, his indeterminate life sentence for an unintentional ministerial mistake was grossly disproportionate, shocked the conscience of society, and offended the notions of human dignity. (Solem v. Helm (1983) 463 U.S. 277, 296.) Reversalof this unconstitutional sentence is mandated. ARGUMENT APPELLANT’S INDETERMINATE LIFE SENTENCE AS A_ THIRD STRIKE OFFENDER VIOLATED THE STATE AND FEDERAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT, WHERE APPELLANT’S THIRD STRIKE WAS BASED SOLELY ON HIS FAILURE TO UPDATE HIS ANNUAL REGISTRATION REQUIREMENT AS A SEXUAL OFFENDER. A. Introduction. The state and federal prohibitions against cruel and unusual punishmentapply to prison sentencesthat are grossly disproportionate to the crime andfail to serve a legitimate state interest. (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17; Harmelin v. Michigan (1991) 501 USS. 957, 996-997 Solem v. Helm, supra, 463 U.S. at p. 290.) Appellant’s indeterminate life sentence under the Three Strikes law for the unintended technical violation of failing to register his residence address for a second time in the same calendar yearis grossly disproportionate. This disproportionate sentenceis not justified by the Legislature purpose of deterring recidivism because appellant’s violation was a mistake, rather than an intentional criminal act. It also caused no threat to public safety because registered his address at the beginning of the year and had not moved. (People v. Carmony, supra, 127 Cal.App.4th 1066, 1073; People v. Cluff(2001) 87 Cal.App.4th 991, 994; accord Gonzalez v. Duncan, supra, 551 F.3d at pp.878-879.) California’s Three Strikes law was enacted to punish recidivism. (§ 667, subd. (b); People v. Williams (2004) 34 Cal.4th 397, 402; see People v. Strong (2001) 87 Cal.App.4th 328, 338.) The law differs from recidivists statutes of otherstates in that the third strike need not be a violent or serious felony. (§ 667, subds.(c), (d).) Courts have upheld harsh sentences under the Three Strikes law against constitutional challenges because the sentencesbear a rationalrelationship to the legitimate state interest of harshly punishing repeat offenders. (People v. Sipe, supra, 36 Cal.App.4th at p. 476.) It follows from this stated purpose that the felony triggering a Three Strikes sentence mustestablish that the defendant intended to commit acrime. If the triggering felony does meet this predicate requirement, the resulting sentence hasnorational relationship to the Legislature’s purpose of deterring recidivism. The excessive length of the sentence would constitute cruel or unusual punishment, because the sentence would be disproportionate to the crime withouta legitimate justification. (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17.) Admittedly, the United States Supreme Court has condoned minor felonies as sufficient to trigger an indeterminate life sentence under the Three Strikes law. Even so, the High Court has been divided onthis issue. (Ewing v. California (2003) 538 U.S. 11; see Graham v. Florida (2010) US. __ [130 S. Ct. 2011].) What is clear is that both this Court and the United States Supreme Court require that the circumstances of the triggering crime be assessed individually and on a case by casebasis. (Graham v. Florida, supra, 130 S.Ct. 2011; accord Jn re Lynch (1972) 8 Cal.3d 410; People v. Dillon (1983) 34 Cal.3d 441.) The question presented in this case has been answered by the Third District in People v. Carmony, supra, where the Court of Appeal heldthat the defendant’s 26-year-to-life sentence for an identical registration violation infringed the state and federal Constitutional prohibitions against cruel and unusual punishment. (People v. Carmony, supra, 127 Cal. App. 4th at p. 1085; accord Gonzalez v. Duncan, supra, 551 F.3d 875.) The reasoning of Carmony correctly implements this Court’s standard for evaluating the constitutionality of a Three Strikes sentence and should be used to resolve the present matter in appellant’s favor. B. Appellant’s Sentence Violated the Eight Amendment. Respondentrelies on the United States Supreme Court’s decisions in Ewing v. California, supra, 538 U.S. 11 and Lockyer v. Andrade (2003) 538 U.S. 63, 72 as support for the contention that the sentence in the present case meets the narrow proportionality principles of the Eight Amendment. While it is true that the triggering offenses in Ewing and Lockyer were minor thefts, the crimes differed from the presentcase in that they resulted from intentional criminal conduct. As such, the triggering crimes demonstrated recidivist criminal behavior. The defendant's third strike in Ewing was for the grand theft offense of steading three golf clubs, with priorstrikes for burglaries and armed robbery. (Ewing v. California, supra, 538 U.S.at pp. 18-20.) The triggering felonies in Andrade were petty thefts with prior theft convictions, with prior strikes for first degree residential burglary. (Lockyere v. Andrade, supra, 538 U.S.at pp. 66-68.) In both Ewing and Andrade the United States Supreme Court upheld the defendants’ indeterminatelife sentences against challenges of cruel and unusual punishment. Respondent claimsthat appellant cannot distinguish his case from Andrade and Ewing. Respondentis incorrect. The defendants in Andrade and Ewing both intended to commit the theft offenses constituting their third strikes. The defendant in Ewing was a career criminal. His third strike of shoplifting three golf clubs might have been insignificant in terms of the monetary value of the golf clubs, but proved the defendant’s intention to continue his criminal behavior. (Ewing v. California, supra, 538 U.S. at pp. 18-20.) Similarly, the defendant in Andrade madehisliving burglarizing homes. He had a long record of stealing property and intendedto steal the $150 worth of videotapes from twodifferent stores which resulted in his third strike convictions. (Lockyere v. Andrade, supra, 538 U.S.at pp. 66- 68.) Though the Three Strikes sentences in these cases were harsh when comparedto the gravity of the crimes, the sentences metthe legislative purpose of severely punishing repeated offenders and deterring recidivism. (Ewing v. California, supra, 538 U.S. at pp. 18-20; see § 667, subd. (b); People v. Williams, supra, 34 Cal.4th at p. 402.) By contrast, appellant was convicted of failing to comply with the duplicate requirementofregistering his residence address within five days of his birthday, even though he hadregistered his address at the beginning of the year. (CT 24-25.) Appellant believed he had complied with his registration requirement because he had not moved from his registered address. (I RT 370-371.) His failure to register a second time in the same year was a mistake. As a result of this unintended violation, appellant received an indeterminate life sentence as a third strike offender. (J CT 250.) Anindeterminate life sentence based on a mistake does not serve the State’s interest of deterring recidivist criminal conduct. There was no rational relationship between appellant’s crime and a Three Strikes law. This rendered appellant’s life sentence “grossly disproportionate” to the crime. (Harmelin v. Michigan, supra, 501 U.S. at p. 1001.) Respondenttries to overcomeappellant’s lack of criminal intent in committing the third strike by arguing that he failed to register at all in 2001. This argumentis not supported by the record. Appellant was charged with failing to register as a sexual offender (count 1; § 290, subd. (a)(1)(A)) and failing to update his registration annually (count 2; § 290, subd. (a)(1)(D)). (I CT 24-25.) The jury acquitted appellant of count 1, but found him guilty of count 2. (I CT 117-118.) The jury’s acquittal meantit weighed both versions of the facts and found appellant’s version to be credible. It also meant the felony triggering appellant’s Three Strikes sentence washis failure to re-register the same address in the same calendar year. The Third Strike was notfor failing to register at all. In applying the proportionality principle to noncapital sentences, courts must consider“(i) the gravity of the offense and the harshnessofthe penalty; (ii) the sentences imposedon other criminals in the same jurisdiction; and(iii) the sentences imposed for commission of the same crime in other jurisdictions." (Solem v. Helm, supra, 463 U.S., at p. 292.) In assessing the gravity of the offense, courts must consider the harm to society caused by the defendant’s conductand his level of culpability. ([bid.) Lawsdirected at curtailing criminal recidivism are an important consideration and entitled to deference in weighing the "gravity of the offense." (See Rummelv. Estelle (1980) 445 U.S. 263, 276; see also Solem v. Helm, supra, 463 U.S. at p. 290.) Nevertheless, the deference paid to state recidivism policies in Eighth Amendmentcases is not withoutlimits. Asrepeatedly recognized by the United States Supreme Court, there are cases where the deference afforded a state in enacting recidivist statutes violates the Eighth Amendment. (Lockyer v. Andrade, supra, 538 U.S.at p. 73; Ewing v. California, supra, 538 U.S. at p. 23; Harmelin v. Michigan, supra, 501 U.S.at pp. 998, 1001 [Kennedy, J., concurring].) This is such a case. Appellant committed a “passive, nonviolent, regulatory offense.” The gravity of the offense was less than low, as was appellant’s level of culpability. There was no harm to society from appellant’s failure to register the same address a second time in the same calendaryear, as the police arrested appellant at his registered address. (I RT 231-238.) Appellant was returnedto prison, not for his intentional criminal conduct, but for mistakenly failing to comply with the confusing mazeofregistration requirements making up the sexual offender reporting statute. It is hard to imagine a less just reason for imposing an indeterminate life sentence. Asrecognized by the United States Supreme Court, the proportionality concept remains applicable to a narrow class of cases, where the sentenceis so starkly unfair that it cannot be abided. (Solem v. Helm, supra, 463 U.S., at p. 292.) That principle was meantto prohibit an indeterminate life sentence underthe facts of this case. C. Appellant’s Sentence Constituted Cruel and Unusual Punishment Under the California Constitution. This Court’s standard for assessing whether a sentence constitutes cruel or unusual punishment mirrors that of federal law. In assessing a violation of the Eight Amendment, courts consider the gravity of the offense and harshness of the penalty; the sentences imposed on other criminals in the same jurisdiction; and the sentences imposedfor the same crimein other jurisdictions. (Solem v. Helm, supra, 463 U.S., at p. 292.) Underthe California standard, courts (1) examine the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (Un re Lynch, supra, 8 Cal.3d at p. 425); (2) a comparison of the challenged punishment with punishments prescribed for more serious offenses in the same jurisdiction; and (3) a comparison of the challenged punishment with punishments prescribed for the same offense in other jurisdictions (People v. Dillon, supra, 34 Cal.3d at p. 479.) The difference between the state and federal standards is the emphasis given to the offense, the offender, and the resulting danger to society under California law. Un re Lynch, supra, 8 Cal.3d at p. 425) Thefirst prong of the California standard obligates courts to carefully assess a defendant’s individual circumstances on a case by case basis. (/bid.) In the context of a Three Strikes case, this standard necessarily requires that courts consider if the triggering offense meets the legislative purpose of deterring recidivist criminal conduct, and whether society was placedat risk of harm from the defendant’s conduct. If the defendant’s criminal conduct in committing the third strike failed to show 10 an intention to reoffend, the legislative purpose justifying the harshness of the Three Strikes sentence is not met. Respondent argues that appellant’s overall criminal history makes a life sentence neither cruel nor unusual punishment. According to respondent, appellant’s prior criminality justifies a life sentence. The effect of respondent’s contention is to imbue a harmless error analysis into the standard for assessing whether a sentence constitutes cruel and unusual punishment. The California standard for reviewing a claim of cruel and unusual punishmentdoes not include a harmlesserror analysis. (In re Lynch, supra, 8 Cal.3d at p. 425; People v. Dillon, supra, 34 Cal.3d at p. 479.) This Court should not break from its prior decisions by allowing sentencing courts to impose cruel and unusual sentencesif the court believes the defendant’s history of crime makes him deserving of such a sentence. Every defendant facing a third strike sentence hasa history of serious or violent crimes. Ifa defendant’s criminal history were sufficient to override the prohibition against cruel and unusual punishment, it would eliminate this constitutional protection from Three Strikes sentences. Appellant recognizes that the Courts of Appeal are split on the question of whether a Three Strikes sentence must take into accountthe gravity of the defendant’s triggering felony, or focus instead on the defendant’s past record of criminality. (Compare People vy. Sullivan (2007) 151 Cal.App.4th 524, 570 with People v. Carmony, supra, 127 Cal.App.4th at p. 1085; People v. Cluff(2001) 87 Cal.App.4th 991, 994.) Though these cases disregard the severity of the thirdstrike, all of the cases involve third strike offenses resulting from intentional criminal conduct. (See, e.g., People v. Gutierrez (2009) 174 Cal.App.4th 515, 518 [assault of prison 11 guard during escape attempt]; People v. Nichols (2009) 176 Cal.App.4th 428, 435 [sex offender’s failure to register as a sexual offender within five days of changing residence addresses]; People v. Pearson (2008) 165 Cal.App.4th 740, 749 [assault of girlfriend with a deadly weapon]; People v. Sullivan, supra, 151 Cal.App.4th at p. 536 [six robberies]; People v. Cline (1998) 60 Cal.App.4th 1327 [theft of clothing from a department store]; People v. Haller (2009) 174 Cal.App.4th 1080, 1083 [stalking, making criminal threats, assault with a weapon].) Appellant does not argue that the severity of the felony triggering an indeterminate life sentence under the Three Strikes law is the measure of the sentence’s constitutionality. Rather, where the crime constituting the third strike showsno intent on the part of the defendant to reoffend, a Three Strikes sentence is inappropriate regardless of the defendant’s criminal record. These cases do not compela different result. In setting the length of prison sentences, a defendant’s criminal history cannot be viewedin isolation. Un re Lynch, supra, 8 Cal.3dat p. 425; see generally In re Lawrence (2008) 44 Cal.4th 1181, 1191; Jn re Shaputis (2008) 44 Cal.4th 1241, 1246.) Facts from a defendant’s past must be considered together with his current circumstances. The weight given to a defendant’s past criminal behavior is one factor for the sentencing court’s consideration, but the defendant’s past misdeeds must be balanced against his current circumstances in determining whether the length of his sentence is just. (in re Lynch, supra, 8 Cal.3d at p. 425; In re Lawrence, supra, 44 Cal.4th at p. 1191.) The gravity of a defendant’s past cannotreplace an individualized analysis of his current circumstancesin each individual case. (See In re Lynch, supra, 8 Cal.3d 410; People v. Carmony, supra, 127 Cal.App.4th at p. 1089.) 12 In the analogous context of parole decisions for inmates serving life sentences, this Court has established that it is unconstitutional to base the length of a sentence solely on a defendant’s past where there is no nexusto his current risk to public safety. The Court’s reasoning in these casesis instructive here. Un re Lawrence, supra, 44 Cal.4th at p. 1191; In re Shaputis, supra, 44 Cal.4th 1241.) In In re Lawrence, the defendant shot her lover’s wife four times, then stabbed thewife to death with a potato peeler, after becoming enraged by the husband’s endingtheir affair. After the murder, Ms. Lawrencefled the state and remaineda fugitive for eleven years. (/d., at p. 1190.) She voluntarily returned to California and surrenderedherself to the authorities, but denied any involvementin the murder. (/bid.) Ms. Lawrence was convictedoffirst-degree murder and sentenced to an indeterminate life sentence. ([bid.) She had no previous criminal record, but was characterized by prison psychologists as “moderately psychopathic.” (/d. at p. 1195.) After spending decades in prison, this Court reversed the decision to deny her parole, which was based on the gravity of her commitment offense, initial lack of remorse, early negative psychological evaluations, and eight rule infractions while in prison. (/d., at pp. 1199.) The Court found that to meet constitutional standards a defendant’s past misdeeds must be consideredin light of other facts in the record. The importance of historic facts lessens with the passage of time, when balanced against a current record of reform. (/d., at pp. 1212, 1235.) The Court explainedthat this inquiry is an “individualized one,” and cannot be undertaken simply by examining the circumstancesofthe crime in isolation, without considering the passage oftime or other mitigating factors bearing on the defendant’s 13 current risk of harm to society. (/d., at p. 1221.) Theprinciples articulated by this Court in Lawrence mirror the Lynch standard for assessing whether a sentence constitutes cruel and unusual punishment. Though respondent would have this Court ignore the character of appellant’s triggering felony in favor of his criminalhistory, such a decision would go againstthe prior decisions of this Court. Even ignoring the triggering offense, appellant’s individual circumstances do notjustify a life sentence as a recidivist criminal. Aside from the reporting violation, appellant sustained his last criminal conviction in 1988. He was sentencedio state prison and given the lifetime requirementof registering as a sexual offender. (I RT 231-238.) Appellant wasreleased from prison in April 1999. He registered as required for four consecutive years (I CT 59-65; I RT 235-236.) In 2001, he registered in January, but did not register from January 17, 2001, to August 22, 2001. This was because he had not moved residence addresses, as he had in the prior four years. (RT 278, 294.) This history showsthat appellant committed no crimes from 1988 to 2001. He wasattempting to lead a law-abidinglife. Nothing in his conduct from 1988 to 2001, or the registration violation constituting his third strike established that appellant presented a danger of reoffending. Even if the Court were to accept respondent’s harmless error argument, appellant criminal history does not justify a life sentence under the Three Strikes law. 14 D. The Reasoning ofPeople v. Carmony, People v. Nichols, and In re Lynch Establishes the Rule that Should be Applied in this Case. The Third District’s reasoning in People vy Carmony, supra, and People v. Nichols (2009) 176 Cal.App.4th 428 provides the properrule for evaluating challenges to Three Strikes sentences as cruel and unusual punishment. In Carmony, the Third District reversed an indeterminate life sentence based onthe failure to re-register the same address within five days of the defendant’s birthday. In Nichols, the court upheld a Three Strikes sentence where the defendant’s triggering offense washis intentional failure to register a new address within five days of moving. (People v. Nichols, supra, 176 Cal.App.4th at p. 430.) The key differences in Carmony and Nicols were the defendants’ intent in failing to register, and the resulting harm to public safety. The defendant’s registration error in Carmony wasa “passive, nonviolent, regulatory offense that posed no direct or immediate danger to society,” because the defendant had correctly registered the proper information the prior month. (People v. Nichols, supra, 176 Cal.App.4th at p. 435.) Mr. Carmonydid not evade or intend to evade law enforcementofficers, and his registration violation posed no threat to public safety. His third strike offense was “the most technical and harmless violation of the registration law”the court had ever seen. (People v. Nichols, supra, 176 Cal.App.4th at p. 436; see People v. Carmony, supra, 127 Cal.App.4that p. 1078.) The samewasnottrue of the defendant in Nichols. In Nichols, the aefendantintentionally failed to register a new address. This meant law enforcement officers could not locate him. Thetriggering offense in 15 Nichols showedculpable criminal conduct that exposed the public to danger. Given his long criminal history, Mr. Nichols’ current criminal conductfit within the legislature intent of the Three Strikes law,as it showedhe continued to ignore his obligation to abide by the rules of society. (People v. Nichols, supra, 176 Cal.App.4th at p. 436.) Therule that emerges from Carmony and Nichols, together with this Court’s decisions in Lynch and Lawrence, requires that courts consider the individual circumstances of a defendant’s case in assessing the constitutionality of a Three Strikes sentence against the prohibition of cruel and unusual punishments. This is accomplished by first deciding if the defendant’s conduct in committing the third strike implicates the legislative policy of deterring recidivism. If the triggering felony fails to meetthis showing, the sentence cannot be justified under the Three Strikes law becausethereis no rational relationship between the increased sentence and the State’s interest. On the other hand,if the triggering offense shows recidivist criminal conduct, courts must next consider the defendant’s entire record to decide if the sentenceis just. Appellant does not dispute that the California Legislature may imposeincreased penalties on repeat offenders. The constitutional prohibition against cruel and unusual punishmentdoes not preclude harsh sentencesas a deterrent to recidivism, provided the harshnessofthe sentence servesthis state interest. In this case, appellant did not intend to violate his registration requirements. He committed the “hyper technical” crime offailing to re- register the same address within five days of his birthday, even though his residence address had not changed. This was a “most technical violation” that posed no dangerto society, and was committed by appellant with no 16 intention of hiding his current address. (People v. Carmony, supra, 127 Cal.App.4th at p. 1069; People v. Cluff, supra, 87 Cal.App.4th at p. 996.) The imposition of an indeterminate life sentence for this unintended act did not serve the purpose of preventing recidivist criminal conduct, because appellant meant to do no wrong. It cannot bejustified by his criminal history, because there was no evidencein the record that appellant posed a current risk of reoffending. He was attempting to live a law-abidinglife and comply with the complicated reporting requirements of a registered sexual offender. An indeterminate life sentence under these circumstances was “grossly disproportionate to the offense” and failed to serve any legitimate state purpose. (People v. Carmony, supra, 127 Cal.App.4th at p. 1069; see People vy. Dillon, supra, 34 Cal.3d at p. 478.) 17 CONCLUSION Appellant is a registered sex offender with a history of criminal conduct. These immutable historic facts are not sufficient to justify an indeterminate life sentence. In order to overcomethe state and federal prohibitions against cruel and unusual punishment, appellant’s sentence had to serve the Three Strikes law’s legislative purpose of harshly punishing repeat offenders and deterring recidivism. Because appellant did not intend to commit a crime, his sentence did not serve the Legislature’s purpose. Appellant mistakenly failed to discharge the hyper technical and redundant requirement that he register the same residence address in the same calendar year. This violation of section 290 amountedto a purely regulatory offense with no resulting harm to society. (People v. Carmony, supra, 127 Cal.App.4th 1066; accord Gonzalez v. Duncan (2008) 551 F.3d 875.) The imposition of an indeterminate life sentence under these circumstanceshasnorational relationship to the purpose behind the Three Strikes law. It is both unfair and unconstitutional. Appellant’s indeterminate life sentence must be reversed. Dated: November 11, 2011 Respectfully submitted, lt NANCY L. TETREAULT Attorney for Appellant 18 CERTIFICATE OF WORD COUNT The text of this brief consists of 4,843 words as counted by the Corel WordPerfect version 10 word processing program used to generate this brief. y Dated: November11, 2011 Nancy L.Fetreault Attorney for Appellant 19 DECLARATION OF SERVICE BY MAIL Re: In_re Coley Case No. §185303 I, Nancy L. Tetreault, am employed in the County of Los Angeles, State of California. I am over 18 years of age, a member of the State Bar and nota party to the within action. My business address is 346 No. Larchmont Boulevard, Los Angeles, California. I served a copy of the attached document, Reply Brief on the Merits, on all parties in this action by placing a true copy thereof in an envelope addressed as follows: Noah P. Hill . Hon. Dorothy Shubin Deputy General’s Office Los Angeles County Superior Court 300 South Spring Street 11234 East Valley Boulevard, Department5 Suite 1702 EI Monte, CA 91731 Los Angeles, CA 90013 (by mail and eservice) Willie Clifford Coley, E04359 Centinela State Prison California Appellate Project P.O. Box 901 AL-234 (Low) 520 South Grand Avenue, 4th Floor Imperial, California 92251 Los Angeles, CA 90071 LEGAL MAIL (by mail and eservice) Court of Appeal Office of the Los Angeles District. Atty. Second Dist., Div. Five 300 East Walnut Street, First Floor 300 South Spring Street, Second Floor Pasadena, CA 91101 Los Angeles, CA 90013 (by mail and eservice) Each envelope wasthen sealed, fully prepaid postage wasaffixed, and each envelope was deposited in the United States mail at Los Angeles, California, on November11, 2011. I declare under penalty of perjury that the foregoing is true and correct. Executed on November11, 2011, at Los Angeles, California. ~\ NANCY L. TETREAULT
