Long Terms Voided in 2 Petty Thefts
Justice: Court did not reject three-strikes law, but ruling in two cases will affect many others.
By HENRY WEINSTEIN Times Staff Writer
February 8 2002
A federal appeals court Thursday struck down two lengthy sentences imposed under California's three-strikes law, saying that a 25-year-to-life term for petty theft constituted cruel and unusual punishment.
In a 3-0 ruling, the U.S. 9th Circuit Court of Appeals said explicitly that it was not overturning California's three-strikes law against repeat offenders, the toughest and most frequently used statute of its kind in the nation.
However, the decision states that a sentence has to be proportionate to the last crime an individual committed. That principle could undermine the statute because a long sentence would not be permitted solely because the defendant had two prior convictions.
The ruling almost certainly will affect 340 individuals now serving 25-year-to-life terms for petty theft under the state's three-strikes law. And it could also affect a number of the other 6,400 people in California who have received 25-year-to-life terms under the recidivist statute, which was enacted in 1994.
The two men who prevailed Thursday are Earnest Bray Jr., who was convicted in 1994 of shoplifting three videotapes from a Wherehouse store in San Joaquin County, and Richard Napoleon Brown, who was convicted in Long Beach in 1995 of stealing a $25 steering wheel car alarm from a Walgreens store. Bray and Brown both had convictions for prior violent offenses.
Judge Marsha S. Berzon of the 9th Circuit wrote in Thursday's decision that Bray and Brown's sentences were "grossly disproportionate" to the crime and therefore violated the 8th Amendment, which prohibits "cruel and unusual punishment."
The lengthy terms "were contrary to and unreasonable applications of clearly established Supreme Court law" on sentencing, Berzon added.
The court ordered that the two defendants, whose cases were consolidated for appeal, must be resentenced within 60 days or released.
The ruling was the second in three months in which the appeals court has overturned a three-strikes sentence. In the earlier decision, the 9th Circuit ruled 2 to 1 that a 50-year-to-life sentence imposed on Leandro Andrade for stealing videos from two Kmarts in San Bernardino County was grossly disproportionate to the offense.
The new ruling, which is written in somewhat broader language, appears to enhance the prospects that hundreds of inmates serving long terms under the three-strikes law will be able to successfully challenge their sentences.
"Thursday's decision stands for the proposition that the punishment has to fit the crime for which the person is sentenced," said USC law professor Erwin Chemerinsky, who represented the defendants at the 9th Circuit.
"This means that the 340 people serving 25-to-life for petty theft clearly have a basis for relief. Then the question would be what other crimes are so trivial to be treated like petty theft" on a three-strikes challenge, Chemerinsky said.
He said that since the Andrade decision was rendered, many lawyers around the state have been citing it during trials and in state court appeals of three-strike sentences.
Late last month, the California attorney general's office asked the U.S. Supreme Court to review the November ruling, because of its "overarching importance" to state sentencing laws.
On Thursday, a spokeswoman for California Atty. Gen. Bill Lockyer said the office is studying the latest decision but has not decided what its response will be.
"We hope the U.S. Supreme Court will consider the Andrade decision quickly," spokeswoman Hallye Jordan said. The attorney general's office could amend its petition to the Supreme Court, in light of the new decision.
Normally, California law treats petty theft offenses as misdemeanors, punishable by up to six months in county jail and up to a $1,000 fine.
Because Bray and Brown had been convicted of several prior offenses, their thefts were enhanced to felonies under the state penal code. They were then enhanced again under the three-strikes law, which mandates that an offender convicted of two serious or violent felonies faces a 25 year-to-life sentence if convicted of a third felony of any kind.
Stephanie A. Mayoshi, an assistant attorney general, argued to the 9th Circuit that the Bray and Brown cases could be distinguished from the Andrade ruling because the minimum terms were only half as long.
But Berzon, joined by judges Stephen Reinhardt and A. Wallace Tashima, rejected that argument.
Berzon noted that Andrade had been convicted of two separate thefts from two Kmarts and got 25 years to life for each one, adding up to 50 years to life. In contrast, both Bray and Brown had been convicted of one theft each. Consequently, the sentences were functionally equivalent and thus the cases were indistinguishable, Berzon wrote.
"If Andrade's 50-year-to-life sentence for two petty theft convictions was grossly disproportionate, it follows that a 25-year-to-life sentence is grossly disproportionate to one petty theft conviction," the judge emphasized.
Moreover, Berzon suggested that the Bray and Brown cases might be even more inequitable because they ultimately could wind up serving life sentences for one petty theft conviction, whereas if Andrade wound up serving life it would be for two petty theft convictions.
Thursday's decision is also noteworthy because both defendants had been convicted of prior crimes of violence and appeared less sympathetic than Andrade, who had no violent priors. That makes it likely that this ruling will affect more inmates, Chemerinsky said.
Bray was convicted in 1980 on three separate counts of robbery, according to the 9th Circuit decision. The first two convictions stemmed from a 1979 incident in which Bray and a co-defendant stole a purse and a briefcase from the driver of a car.
"When the victim grabbed Bray, his co-defendant, who was brandishing a gun, pointed it at the driver's head and threatened to kill her if she did not release Bray. The victim complied," Berzon noted. Bray's third conviction stemmed from a separate incident in which he and several co-defendants stole a watch from a man who was hit in the face and kicked by one of the co-defendants.
Brown has a total of five serious or violent prior felony convictions, including two counts of second-degree burglary, two counts of assault with a deadly weapon and a robbery, Berzon wrote.
Both Bray and Brown appealed their sentences to a state appeals court and their pleas were rejected in unpublished opinions. The California Supreme Court declined to review either case. Then, the two inmates filed writs of habeas corpus, challenging the constitutionality of their sentences. Federal district court judges rejected their claims and the inmates appealed to the 9th Circuit, setting the stage for Thursday's ruling.
The three-strikes law was approved by California voters in 1994 amid a huge furor over the kidnapping and murder of Polly Klaas, a 12-year-old Petaluma girl. Eventually, Richard Allen Davis, who was on parole at the time of the slaying, was convicted of Klaas' murder and received a death sentence.
Although a number of prosecutors have said that the statute has been a useful deterrent, numerous critics have said it has been used unjustly to hand down severe sentences to individuals who have committed minor crimes.
Secretary of State Bill Jones, who authored the three-strikes law when he was in the Legislature, defended the law and criticized the ruling.
"The court's decision today threatens to put more repeat murderers, robbers, rapists and child molesters back in our neighborhoods," said Jones, who is running for governor in the Republican primary.
Lockyer's spokeswoman said Thursday that he "supports the current three-strikes law," particularly in light of a 1996 California Supreme Court decision which granted trial judges the power to overlook prior convictions in a potential three-strikes case. Judges also have the option of rejecting earlier offenses prosecutors seek to use as first and second strikes.
But Thursday's decision represents "the other shoe dropping" on the three-strikes law, said Franklin E. Zimring, a professor at UC Berkeley's Boalt Hall School of Law.
"This is an indication," Zimring said, "that the Andrade decision was not an outlier, a single case."