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In Re Willie Clifford Coley

August 30, 2012

IN RE WILLIE CLIFFORD COLEY
ON HABEAS CORPUS.



Court: Superior County: Los Angeles Judge: Dorothy L. Shubin Ct. App. 2/5 No. B224400

The opinion of the court was delivered by: Cantil-sakauye, C. J.

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 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,*fn1 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 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 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, 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),*fn2 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.*fn3

After having been released on parole and subsequently returned to prison for parole violations on three prior occasions,*fn4 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 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).*fn5 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.*fn6 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 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 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 his arrival in the jurisdiction, but convicting him of failing to update his registration within five working days of his birthday.*fn7

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, 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."

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 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.*fn8

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" (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 non-capital 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.].)

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 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 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.)

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 ...


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