ORIGINAL PROCEEDINGS. Petition for Writ of Habeas Corpus. Dorothy L. Shubin, Judge. Denied. (Los Angeles County Super. Ct. No. MA022987).
The opinion of the court was delivered by: Kumar, J.*fn4
CERTIFIED FOR PUBLICATION
Petitioner was convicted of failing to update his sex offender registration within five working days of his birthday (former Pen. Code, § 290, subd. (a)(1)(D))*fn1 and, due to his prior criminal convictions, was sentenced to 25 years to life pursuant to the Three Strikes law (Pen. Code, § 1170.12 subds. (b)-(i)).
In response to an order issued by the California Supreme Court, we consider whether, in light of the holding in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony), petitioner's sentence violates the Eighth Amendment. We conclude petitioner's sentence does not violate the Eighth Amendment and respectfully disagree with Carmony.
Petitioner was arrested as part of a "parolee at large sweep" and subsequently convicted of the above-referenced sex offender registration offense. He admitted having prior convictions for voluntary manslaughter, rape in concert, and robbery. After being sentenced to 25 years to life pursuant to the Three Strikes law, petitioner appealed the judgment of conviction arguing, inter alia, that the punishment violated the Eighth Amendment's proscription against cruel and unusual punishment. We rejected that claim, as well as others, and affirmed the judgment in 2003.
Following the denial of petitioner's petition for review, the Third Appellate District of the Court of Appeal held, in Carmony, supra, 127 Cal.App.4th at pp. 1074-1084, that the implementation of the Three Strikes law to trigger a sentence of 25 years to life violates the Eighth Amendment if the only current felony conviction (i.e., the felony triggering applicability of the Three Strikes law) is for failing to update sex registration within five working days of the defendant's birthday.
On June 16, 2009, petitioner filed a habeas corpus petition in the California Supreme Court arguing that, as in Carmony, petitioner's sentence violates the Eighth Amendment. The Supreme Court, citing Carmony, issued an order directing the Director of the Department of Corrections to show cause, before this court, why petitioner is not entitled to relief. We now consider the merits of petitioner's Eighth Amendment challenge, in light of Carmony.*fn2
In assessing an Eighth Amendment challenge to a 25-year-to-life sentence imposed pursuant to the Three Strikes law, the United States Supreme Court has held, even if the current offense is not serious, the sentence can be "justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and... [the defendant's] own long, serious criminal record." (Ewing v. California (2003) 538 U.S. 11, 29 (plur. opn. of O'Connor, J.).)
Here, petitioner's criminal history is both lengthy and serious. Between 1978 and 2001 petitioner was: sentenced to prison for 15 years for committing burglary in Florida; sentenced to 20 years in state prison for committing manslaughter, rape in concert, and robberies; and returned to prison on three separate of occasions for parole violations.
After giving due weight to petitioner's serious criminal history, we find the gravity of the offense to be significant and the punishment of 25 years to life in state prison to be constitutional. In addition we respectfully disagree with the analysis in Carmony because it: (1) relies, in part, on a dissenting opinion, in Ewing; (2) extends the holding of Solem v. Helm (1983) 463 U.S. 277, to cases where a defendant's sentence contemplates the possibility of parole; and (3) assesses the gravity of a sex offender's failure to update registration without providing due consideration to the offender's prior criminal history.
A. United States Supreme Court ...