No. [99-7998]
IN THE
SUPREME COURT OF THE UNITED STATES
WILLIAM FLOYD FLOWERS, Petitioner,
vs.
PEOPLE OF THE STATE OF CALIFORNIA, Respondent.
On Petition for Writ of Certiorari to the California Court of Appeal, Second Appellate District, Division Five
PETITION FOR WRIT OF CERTIORARI
MARTIN KASSMAN
(Counsel of Record)
[A mailing address, no longer current, appeared here.]
(415) 564-6732
Attorney for Petitioner
WILLIAM FLOYD FLOWERS
1. Does the life sentence (with no parole for at least 25 years) imposed on the petitioner in this case, for his crime of failing to notify police of a change of address within five working days, constitute cruel and unusual punishment prohibited by the Eighth Amendment, in light of the state's use of the petitioner's prior convictions both (1) to make a felony of conduct that otherwise would be either a misdemeanor or not a crime and (2) to impose a life sentence for the new felony, which otherwise is punishable by a maximum of three years in state prison?
All parties appear in the caption of the case on the cover page.
TABLE OF AUTHORITIES CITED (omitted from Web version)
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
REASONS FOR GRANTING THE PETITION
A. The California Supreme Court Steadfastly Refuses to Address the Issue.
INDEX TO APPENDICES
(omitted from Web version)
The opinion of the highest state court to review the merits appears at Appendix A to the petition and is unpublished.
The date on which the highest state court decided this case was October 27, 1999. A copy of that decision appears at Appendix B.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
1. U.S. Const. amend. VIII:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
2. Cal. Penal Code § 290: See Appendix C.
3. Cal. Penal Code § 667: See Appendix D.
4. Cal. Penal Code § 1170.12: See Appendix E.
William Floyd Flowers registered as a sex offender upon his release from prison in 1994. (RT(1) 28, 155.) He had been convicted of three counts of rape in 1976 and of one count of lewd conduct with a child in 1987. (RT 119-20.) On his registration form, Mr. Flowers listed his residence address as 10509 Riverside Drive, Apartment 9, in North Hollywood, Los Angeles County, California. (RT 28-29.) Mr. Flowers lived at that address with one Bertha Carter, who was an employee of the Department of Children's Services. In 1995, Ms. Carter was awarded custody of Mr. Flowers' daughter, Minetta, who also lived at the Riverside Drive address. (RT 64-65, 67, 157, 263.)
On May 12, 1997, Mr. Flowers and Ms. Carter had an argument, and she asked him to leave the apartment. He did. He returned about a week later. In the interim, Mr. Flowers married one Deliska King in a Las Vegas ceremony. (RT 78-79, 158-61.) Ms. King lived in Compton, in Los Angeles County. (RT 94, 164.)
In the weeks following the wedding, Mr. Flowers spent some time with Ms. King in Compton, and he gave a co-worker Ms. King's phone number.(2) (RT 94-95, 165.) He and Ms. King planned eventually to cohabit and, they hoped, obtain custody of Mr. Flowers' daughter. (RT 159-60.) In the meantime, however, Mr. Flowers continued to live at Ms. Carter's Riverside Drive address part-time, and he received his mail there. (RT 76-77, 161.) He did not report any change of address to the police. (RT 28.)
On June 9, 1997, Detective Diane Webb and Officer Darcie Cobos of the Los Angeles Police Department, who were conducting an "audit" of "high-risk sex offenders," appeared at the Riverside Drive address, looking for Mr. Flowers. (RT 24-25, 28-29, 89-90.) Ms. Carter answered the door. According to Officer Cobos, Ms. Carter stated that Mr. Flowers did not live at the Riverside Drive address and that he only received his mail there. (RT 90-92.) Ms. Carter testified that she did not remember saying those things. (RT 68-70.)
A neighbor who lived in the same Riverside Drive apartment complex, David Hibbs, testified that the last time he saw Mr. Flowers there was around June 1, 1997. On that occasion, Mr. Flowers was walking away carrying some shirts on hangers. He told Mr. Hibbs, "I am moving out." (RT 58-60.) Mr. Flowers testified that it was on May 12, the day of his argument with Ms. Carter--not on June 1--that he carried some clothes out of her apartment. He allowed that he may have told Mr. Hibbs that he was "moving out," because he was upset with Ms. Carter. "I could have said anything," he testified. (RT 176-77.)
During their June 9 visit to the Riverside Drive address, the police gave Ms. Carter a business card for Mr. Flowers. He called the police the next day. After several exchanges of telephone calls, the police arrested Mr. Flowers at his workplace on July 1, 1997. (RT 30-34, 38, 92.)
On November 12, 1997, the People filed in Los Angeles County Superior Court a First Amended Information charging Mr. Flowers with a felony violation of the registration provisions of California Penal Code section 290.(3) The information alleged, pursuant to California's "Three Strikes" law (Cal. Penal Code §§ 667, 1170.12),(4) that Mr. Flowers had suffered four prior convictions of serious or violent ("strike") felonies. (CT(5) 68-69.)
Mr. Flowers waived his right to a jury trial. A bench trial commenced on December 29, 1997. (CT 150; RT 3-4, 19.) On January 5, 1998, the court found Mr. Flowers guilty. The court found that, in violation of Penal Code section 290, subdivision (g)(2), Mr. Flowers "failed to register after having moved out [of his registered home] either at the end of May or the first of June of 1997." The court found the prior conviction allegations to be true. (RT 233-35; CT 186-87.)
At a sentencing hearing on February 20, 1998, the trial court refused Mr. Flowers' request that the court exercise its discretion to dismiss three of Mr. Flowers' four "strikes" and sentence him as a second-strike defendant.(6) The court sentenced Mr. Flowers, who was then 45 years old, "to the term of 25 years to life." (RT 251-67; CT 189-91, 193.)(7) Mr. Flowers filed a notice of appeal. (CT 192.)
On appeal, Mr. Flowers argued that his life sentence was so grossly disproportionate to his offense that it constituted cruel and unusual punishment in violation of the federal and state constitutions. (Appellant's Opening Br. at 6-38.)(8) Among other things, Mr. Flowers specifically noted the Eighth Amendment concerns recently expressed by several Justices of this Court about California's use of defendants' prior convictions to "'play a dual role'"--i.e., both to turn a petty offense (or non-offense) into a felony and to impose a life sentence for that new felony under the Three Strikes law. (Appellant's Opening Br. at 14-15 (quoting Riggs v. California, 525 U.S. 1114, 1999 U.S. LEXIS 743, *3 (1999) (opinion of Stevens, J., respecting denial of certiorari) and citing id. at *5-*6 (Breyer, J., dissenting from denial of certiorari)).)
The California Court of Appeal affirmed the judgment in an opinion issued on August 9, 1999.(9) The court, relying on the lead and concurring opinions in Harmelin v. Michigan, 501 U.S. 957 (1991), refused to consider Mr. Flowers' arguments that his life sentence was disproportionate to the sentences that similarly situated defendants would receive in most other jurisdictions and that it was disproportionate to sentences meted out in California for much more serious crimes. (Opinion at 6 n.5.) Instead, the court considered only one factor--variously stated as "the gravity of the offense and the harshness of the penalty," in the language of this Court (Opinion at 6 n.5.), and as "the nature of the offense and the offender," in the language of cases decided under the California Constitution (Opinion at 5). The court held:
In short, defendant has not been sentenced to life in prison only because he was convicted of failing to register. Rather, he was so sentenced because he is a serious violent criminal and sexual predator who has demonstrated repeatedly that he has no intention of abiding by the laws of this State specifically designed to protect society from sexual predators. Defendant's sentence is not so disproportionate to his crime that it shocks the conscience and offends fundamental notions of human dignity. Accordingly, this sentence does not violate either the state or federal prohibition against cruel and unusual punishment.
(Opinion at 7-8.)
Next, Mr. Flowers sought discretionary review by the California Supreme Court. His petition for review noted the similarities between the instant case and Riggs v. California and the fact that three Justices, notwithstanding their opinion that the question presented in Riggs was "'obviously substantial,'" had voted to deny certiorari partly because the California Supreme Court had not yet addressed the question. (Pet. for Review at 10-13, quoting Riggs, 1999 U.S. LEXIS 743 at *2 (opinion of Stevens, J.).) The petition summarized Mr. Flowers' arguments as to why his sentence violated the Eighth Amendment. (Pet. for Review at 13-14.)(10) The California Supreme Court denied review on October 27, 1999, with one justice voting to grant review.(11)
REASONS FOR GRANTING THE PETITION
I. No Purpose Would Be Served by This Court's Continuing to Wait for the California Supreme Court and the Lower Federal Courts to Opine on When, If Ever, Life Sentences Under California's Three Strikes Law Constitute Cruel and Unusual Punishment.
A full year has passed since four Members of this Court issued what was, in effect, a plea to the California Supreme Court to evaluate the Eighth Amendment implications of using the state's Three Strikes law to impose life sentences for minor offenses. In Riggs v. California, a defendant with eight prior felony convictions received a Three Strikes sentence of 25 years to life for petty theft with a prior (Cal. Penal Code § 666) and challenged the sentence under the Eighth Amendment. Riggs, 1999 U.S. LEXIS 743 at *2, *5 (opinion of Stevens, J.). Although this Court denied certiorari, four Justices expressed concern about how the Three Strikes law is being applied. Justice Breyer would have granted certiorari. Riggs, 1999 U.S. LEXIS at *5-*6 (Breyer, J., dissenting) ("I agree with Justice Stevens that this petition for certiorari raises a serious question concerning the application of a 'three-strikes' law to what is in essence a petty offense."). Justice Stevens, joined by Justices Souter and Ginsburg, wrote that the question whether the sentence was grossly disproportionate to the offense was "obviously substantial, particularly since California appears to be the only State in which a misdemeanor could receive such a severe sentence." Id. at *2-*3 (opinion of Stevens, J.).
Nevertheless, there are valid reasons for not issuing the writ in this case. Neither the California Supreme Court nor any federal tribunal has yet addressed the question. Given the fact that a defendant's prior criminal record may play a dual role in the enhancement scheme--first converting the misdemeanor into a felony, and then invoking the provisions of the three-strikes law--there is some uncertainty about how our cases dealing with the punishment of recidivists should apply.
Id. at *3-*4.(12)
Justice Stevens also noted that the defendant had another avenue for pursuing his Eighth Amendment claim: an application in federal court for a writ of a habeas corpus. He concluded: "It is therefore prudent for this Court to await review by other courts before addressing the issue." Riggs, 1999 U.S. LEXIS 743 at *5 (opinion of Stevens, J.).
A. The California Supreme Court Steadfastly Refuses to Address the Issue.
The California Supreme Court's response to the Justices is clear: It has no intention of addressing the Eighth Amendment implications of the Three Strikes law. In the past year--as in all of the nearly six years of the Three Strikes law's existence--the court has declined every opportunity to review the constitutionality of a life sentence imposed under that law.(13) E.g., People v. Martinez, 84 Cal. Rptr. 2d 638, 641 (Cal. Ct. App. 1999) (two concurrent life sentences for possessing methamphetamine and "attempting by threat to deter an executive peace officer from carrying out his duty" held not cruel and unusual), review denied, 1999 Cal. LEXIS 6078 (Cal. Aug. 25, 1999); People v. Barrera, 82 Cal. Rptr. 2d 755, 757 (Cal. Ct. App. 1999) (life sentence for forgery of $386.11 check held not cruel and unusual), review denied, 1999 Cal. LEXIS 3807 (Cal. June 3, 1999); People v. Emmal, 80 Cal. Rptr. 2d 907, 908-11 (Cal. Ct. App. 1998) (life sentence for "transporting methamphetamine" by driving about 20 feet through parking lot, with "minuscule" quantity in pocket, challenged as cruel and unusual; judgment affirmed), review denied, 1999 Cal. LEXIS 1766 (Cal. Mar. 24, 1999).(14)
The California Supreme Court has granted review in a few cases in which the courts of appeal have rejected defendants' Eighth Amendment challenges to Three Strikes life sentences, but the Supreme Court has confined its review to other issues. In People v. Morales, No. B101352, 1999 Cal. App. LEXIS 126 (Cal. Ct. App. Feb. 17, 1999),(15) for example, the Court of Appeal rejected a defendant's argument that his Three Strikes life sentence for possession of phencyclidine constituted cruel and unusual punishment. Id. at **1-**2, **24-**28. The Supreme Court's initial order granting review did not limit the issues to be argued. People v. Morales, No. S059461, 1999 Cal. LEXIS 3200, *1 (Cal. May 19, 1999) (order granting review). Five days later, however, the court ordered the parties to limit briefing and argument to a single issue: whether the prosecutor made an impermissible argument to the jury. People v. Morales, No. S059461 (Cal. May 24, 1999) (order limiting issues); see Judicial Council of California, Summary of Cases Accepted During the Week of May 17, 1999, at 2 (summary of Morales mentions only prosecutorial argument issue); California Supreme Court Pending Cases, Dec. 28, 1999, at 78-79 (same).(16)
In People v. Rivera, No. B117372, 1999 Cal. App. LEXIS 121 (Cal. Ct. App. Feb. 16, 1999),(17) the Court of Appeal rejected the 61-year-old defendant's Eighth Amendment challenge to the imposition of six consecutive life terms for six first-degree burglaries. Id. at **2 & n.1, **3. The court agreed with the People "that the trial court should have ordered an additional restitution fine of $1,200, to remain suspended until such time, if ever, as appellant violates parole." The court held, however, that the People's remedy was with the trial court. Id. at **4. The California Supreme Court denied the defendant's petition for review, but it granted the People's petition as to whether the Court of Appeal properly declined to impose the parole revocation fine. People v. Rivera, No. S077400, 1999 Cal. LEXIS 2984, *1 (Cal. May 12, 1999) (order granting and denying review); see Judicial Council of California, Summary of Cases Accepted During the Week of May 10, 1999, at 2; California Supreme Court Pending Cases, Dec. 28, 1999, at 80.
Thus, the California Supreme Court continues to carefully avoid any consideration of the Eighth Amendment implications of the Three Strikes law, both in cases in which the classification of the current crime as a felony does not depend on the defendant's criminal history (such as Martinez, Barrera, Emmal, Morales and Rivera) and in cases in which prior convictions play a "dual role" (such as the instant case, Riggs and Cooper). To the extent that Members of this Court would (for laudable reasons) prefer to wait for California's high court to address the issue before this Court does, it appears that the wait would be indefinite.
B. Because of the New Restrictions on Federal Habeas Corpus Review of State Criminal Convictions, the Lower Federal Courts Cannot Effectively Address the Issue.
Since Congress adopted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the United States Court of Appeals for the Ninth Circuit (which handles appeals from federal district courts in California) has taken the position that it "can no longer reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on a federal Constitutional issue." Duhaime v. Ducharme, 193 F.3d 1126, 1999 U.S. App. LEXIS 25351, *6 (9th Cir. 1999).(18) "Rather, the writ [of habeas corpus] will issue only when the state court decision is 'contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.'" Id. (quoting 28 U.S.C. § 2254(d)). In Duhaime v. Ducharme, the Ninth Circuit refused to give a habeas corpus petitioner (who was challenging his sentence as unconstitutional) the benefit of one of its own prior decisions, because that decision "extended" Solem v. Helm, 463 U.S. 277 (1983), "which specifically limited its holding to the circumstances before it." Duhaime, 1999 U.S. App. LEXIS 25351 at *14.
In light of the Ninth Circuit's interpretation of AEDPA, any California convict who claims, as does Mr. Flowers, that his Three Strikes life sentence constitutes cruel and unusual punishment under Solem v. Helm can expect the Ninth Circuit to pronounce itself powerless to decide the matter. Since the Three Strikes law does not purport to impose a life sentence without parole,(19) the circumstances will never be exactly the same as those in Solem, in which a defendant with six prior felony convictions received a life-without-parole sentence for uttering a no-account check. Solem, 463 U.S. at 279-81.
The unlikelihood of obtaining meaningful Ninth Circuit review is especially strong in cases, such as the instant case, in which the defendant's prior convictions play a "dual role," both converting a misdemeanor (or non-offense) into a felony and subjecting the defendant to a Three Strikes life term. As Justice Stevens noted in Riggs, "there is some uncertainty about how our cases dealing with the punishment of recidivists should apply" in such cases. Riggs, 1999 U.S. LEXIS 743 at *4. This uncertainty surely would deter the Ninth Circuit (and the federal district courts in California) from deciding the issue, in light of AEDPA. See Duhaime, 1999 U.S. App. LEXIS 25351 at *12 ("This point may be debatable, but the question before us is whether we are at liberty to debate it.").
For these reasons, there is little chance that this Court's ultimate decision on the Eighth Amendment implications of California's Three Strikes law will benefit from waiting any longer for other courts to address the issue.
II. This Case Is a Compelling Example of a Grossly Disproportionate Sentence Resulting From California's Three Strikes Law.
Mr. Flowers' prior felony convictions, albeit not as numerous of those of the defendant in Solem v. Helm, were for very serious, reprehensible crimes: rape (three counts in a single case) and lewd conduct with a child. His current offense, however, was about as passive and innocuous a felony as one can imagine. This stark contrast makes this case an excellent vehicle for considering the effect of recidivism on Eighth Amendment analysis.
In order to comply with the prohibition on cruel and unusual punishments, "a criminal sentence must be proportionate to the crime for which the defendant has been convicted." Solem, 463 U.S. at 290. This Court has employed three "objective factors" in determining whether a sentence is proportionate: (1) "the gravity of the offense and the harshness of the penalty," (2) "the sentences imposed on other criminals in the same jurisdiction," and (3) "the sentences imposed for commission of the same crime in other jurisdictions." Id. at 290-92; cf. United States v. Bajakajian, 524 U.S. 321, 118 S. Ct. 2028, 2037 (1998) (Solem v. Helm proportionality test applies to challenges under Excessive Fines Clause of Eighth Amendment).(20)
A. The Relatively Minor Nature of Mr. Flowers' Current Offense, the State's Historic Treatment of the Offense, and the Use of Mr. Flowers' Prior Convictions to Both Create the Offense and Greatly Increase His Punishment Demonstrate the Disproportionality of His Life Sentence.
Proportionality analysis begins with the nature of the offense for which sentence has been imposed--in this case, Mr. Flowers' violation of California Penal Code section 290. This petition takes no issue with the efficacy of a registration requirement for people who have committed serious sex offenses, or with the proposition that society is well-served by a mechanism that improves the police's ability to monitor the activities of persons whose past criminality suggests that they might pose a danger to others. One must nevertheless acknowledge that a person's mere failure to report promptly his change of address within a county is hardly the sort of outrageous, antisocial behavior that one normally associates with felony punishment and, particularly, with life imprisonment.
Section 290 is "regulatory in nature, intended to accomplish the government's objective by mandating certain affirmative acts." Wright v. Superior Court, 936 P.2d 101, 105 (Cal. 1997). Mr. Flowers' failure timely to report his change of address is analogous to the offense this Court recently considered in another Eighth Amendment case; i.e., failure to report the fact that one is carrying more than $10,000 in currency out of the United States:
Respondent's crime was solely a reporting offense. It was permissible to transport the currency out of the country so long as he reported it. . . .
The harm that respondent caused was also minimal. Failure to report his currency affected only one party, the Government, and in a relatively minor way.
United States v. Bajakajian, 118 S. Ct. at 2038-39 (footnotes omitted). The Court held that forfeiture of $357,144 in currency, as a penalty for failure to report its export to the Government, would violate the Excessive Fines Clause under the Solem v. Helm proportionality test. Id. at 2037-38.
Mr. Flowers' crime was, likewise, solely a reporting offense. It was permissible for him to change his address, so long as he reported it. His failure to inform the police promptly of his address change did not harm anyone; at most, it was a minor transgression against the government. Even at that, the record demonstrates that Mr. Flowers' failure to report an address change did not hinder the police in establishing contact with him or in taking him into custody. He was not hiding from them.
Another factor in judging the seriousness of the current offense is the state's historic treatment of that offense. For example, in In re Lynch, 503 P.2d 921 (Cal. 1972)--a seminal cruel-and-unusual-punishment decision under the California Constitution(21)--the California Supreme Court demonstrated the relatively minor nature of the current felony (recidivist indecent exposure) by pointing to its 80-year history in California as a misdemeanor. Id. at 934.
Whereas recidivist indecent exposure was a misdemeanor in California from 1872 through 1952 (id.), failure to register (or re-register) as a sex offender was not a crime at all until 1947. From 1947 until 1995, violation of the registration law was a misdemeanor in all cases.(22) Not until 1995 did the Legislature make violation of section 290 a felony under certain circumstances. Wright v. Superior Court, 936 P.2d at 102, 104; see Cal. Penal Code § 290 note (Deering) (Notes: Former Sections). As in Lynch, this history is strongly indicative of the relatively minor nature of the current felony.
Of course, the nature of Mr. Flowers' current offense is not the only consideration. Mr. Flowers was convicted of crimes on two previous occasions: in 1976, when he pled guilty to three counts of forcible rape, and in 1987, when he was convicted of lewd and lascivious acts with a child under age 14. These surely were serious offenses, and Mr. Flowers served considerable prison time for them. (CT 112, 195.)
As various courts have recognized, however, the fact that a defendant has a serious criminal history does not necessarily justify imposing Draconian punishment for a relatively minor current offense. In In re Wells, 121 Cal. Rptr. 23 (Cal. Ct. App. 1975), for example, the defendant had a current conviction of child molestation and a prior conviction of lewd and lascivious acts upon a child under age 14. He was sentenced to an indeterminate term of one year to life. Id. at 24-25. The California Court of Appeal held that this sentence constituted cruel and unusual punishment:
[T]he enhanced penalty imposed on petitioner ought to have borne a reasonable relationship to his present offense and not to his prior offense, which was far more serious than the present one. The anomaly of the punishment before us is that the escalation in the recidivist penalty is triggered by the commission of an offense much less serious than the prior one.
Id. at 30 (quotation marks omitted).
This Court has likewise refused to allow recidivism to justify harsh punishments for relatively minor current offenses. In Solem v. Helm, the defendant--who currently stood convicted of the South Dakota felony of uttering a no-account check--had six prior felony convictions: three burglaries, obtaining money under false pretenses, grand larceny and third-offense driving while intoxicated.(23) The Court held that, notwithstanding the defendant's recidivism, the life-without-parole sentence imposed for his current felony "is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment." Solem, 463 U.S. at 279-81, 303.
In the instant case, an additional factor pointing toward the unconstitutionality of the life sentence is that fact that what Mr. Flowers did--or, more accurately, failed to do (i.e., notify the police of an address change)--was a crime only because of his prior sex offense convictions, and was a felony only because of the serious nature of those priors. The Eighth Amendment may, at least in some cases, permit the use of a defendant's priors to convert a non-crime or misdemeanor into a felony; however, even if one posits that the Eighth Amendment may also allow using a defendant's priors to impose life imprisonment for a felony that otherwise would draw a maximum three-year prison sentence, that would not necessarily mean that the Eighth Amendment permits using a single defendant's priors to do both in a single case. See Riggs, 1999 U.S. LEXIS 743 at *3 (opinion of Stevens, J.) (discussion of priors' "dual role" in Three Strikes scheme).
Finally, Associate Justice Stanley Mosk of the California Supreme Court--the author of In re Lynch--has provided a useful analysis of precisely the question raised in the instant case: whether a 25-years-to-life sentence for a "third strike" violation of California Penal Code section 290 constitutes cruel and unusual punishment. In Wright v. Superior Court, the issue was whether the defendant's alleged violation of section 290 could be prosecuted as a felony or had to be charged as a misdemeanor. The majority determined that it could be charged as a felony. Wright, 936 P.2d at 102. Justice Mosk wrote a lengthy dissent. Id. at 108-15 (Mosk, J., dissenting). In dictum near the end of that opinion, he warned of the possible consequences of the majority's decision:
If defendant's counsel is correct that he is facing a three strikes term if convicted of violating Penal Code section 290, subdivision (f), he may be sentenced to twenty-five years to life imprisonment for misdemeanor recidivism. Such a result would be intolerable.
First, the punishment would be disproportionate to the crime. No matter how unsavory defendant's past may be, a sentence up to life imprisonment for a current misdemeanor is baroque and medieval in concept and inconsistent with the fundamental principles of a just society.
Id. at 114 (citations omitted).(24)
B. California Imposes Equivalent, or Lighter, Punishment for Crimes That Are Much More Serious Than Mr. Flowers' Crime.
In California, if a defendant with the same criminal history as Mr. Flowers were to commit a felony much more serious than Mr. Flowers' failure to notify the police of his change of address--for example, manslaughter, carjacking or rape(25)--the prescribed sentence would be the same sentence Mr. Flowers received: life imprisonment, with a minimum term of 25 years. See Cal. Penal Code §§ 667, 1170.12. Thus, even taking his recidivism into account, Mr. Flowers "has been treated in the same manner as, or more severely than, criminals who have committed far more serious crimes." Solem v. Helm, 463 U.S. at 299.
C. Very Few, If Any, Other American Jurisdictions Would Impose So Harsh a Penalty for Mr. Flowers' Crime.
Mr. Flowers' opening brief in the Court of Appeal set forth, with supporting statutory and case law citations, how every other state, and the District of Columbia, would punish a defendant with the same prior convictions as Mr. Flowers who violated that jurisdiction's sex offender registration law. (Appellant's Opening Br. at 18-38.) In the vast majority of U.S. jurisdictions, such a defendant would receive either misdemeanor punishment or a prison sentence much shorter than even the minimum term Mr. Flowers must serve (25 years).(26)
In 20 states, a person with Mr. Flowers' criminal history who failed to re-register after a change of address would be committing what is explicitly classified as a misdemeanor. Four states and the District of Columbia do not use the terms "felony" and "misdemeanor" but would impose what amounts to misdemeanor punishment. Eighteen states would classify the offense as a felony, at least under certain circumstances, but would not impose a life sentence.
Assuming the worst as to all variables--including exercises of discretion and interpretation of constitutional and statutory law--only seven other states have recidivist provisions that could, at least in theory, result in as harsh a maximum punishment as Mr. Flowers received in California.(27)
Thus, all three of the traditional factors point toward a finding that Mr. Flowers' life sentence is grossly disproportionate to his crime. California imposed cruel and unusual punishment on Mr. Flowers and, thanks to the Three Strikes law, will continue to impose life sentences for relatively minor offenses unless this Court intervenes.
The petition for a writ of certiorari should be granted.
Dated: January 25, 2000.
MARTIN KASSMAN
(Counsel of Record)
[A mailing address, no longer current, appeared here.]
(415) 564-6732
Attorney for Petitioner
WILLIAM FLOYD FLOWERS
1. "RT" refers to the Reporters' Transcript on Appeal.
2. Mr. Flowers' work supervisor, Jerry Baltazar, testified that he called Ms. King's number, in order to contact Mr. Flowers, three to four times per week beginning in May. Most of the time, he had to leave a message for Mr. Flowers or page him. About 40 percent of the time, he was able to actually speak with Mr. Flowers at Ms. King's number. Mr. Baltazar testified that, on occasion, Mr. Flowers personally answered Ms. King's phone when it rang; Mr. Flowers testified that he never did so. (RT 50-54, 166.)
3. Section 290 requires people convicted of certain sex offenses to register with police wherever they live, for the rest of their lives. If a registrant changes his address, he must notify the authorities within five working days. Cal. Penal Code § 290(f). Failure to comply with these requirements is either a misdemeanor or a felony, depending on the nature of the registrant's prior convictions. Id. § 290(g). At the time of Mr. Flowers' failure to comply, a person who previously had been convicted under any of several named statutes--including Penal Code sections 261 (rape) and 288 (lewd conduct with a child)--and who violated section 290's registration requirements was "guilty of a felony." Standard California Codes, Penal Code (Matthew Bender, 1997 ed.), Cal. Penal Code § 290(g)(2), at 127. (The current version of section 290 is set forth at Appendix C to this petition.)
4. The statutes comprising the Three Strikes law--sections 667 and 1170.12 of the California Penal Code--are set forth at Appendices D and E to this petition.
5. "CT" refers to the Clerk's Transcript.
6. If the trial court had done as Mr. Flowers asked, the maximum sentence would have been six years in prison; i.e., double the three-year upper term. See Cal. Penal Code §§ 667(e)(1), 1170.12(c)(1) (defendant with one prior "strike" gets "twice the term otherwise provided"); Cal. Penal Code § 290(g)(2) (felony violation of registration statute punishable by 16 months, two years or three years in prison).
7. Mr. Flowers had asserted, in papers filed with the trial court, that imposing a life sentence on him under the Three Strikes law would constitute cruel and unusual punishment in violation of both the Eighth Amendment and the California Constitution. (CT 87-92.)
8. Mr. Flowers also argued that the trial court had abused its discretion under state law by refusing to sentence him as a "second-strike" offender. (Appellant's Opening Br. at 39-41.)
9. The opinion (hereinafter referred to as "Opinion") appears at Appendix A to this petition.
10. The petition also argued that the Court of Appeal's single-factor analysis was contrary to binding precedent interpreting the California Constitution. (Pet. for Review at 6-10.)
11. The order denying review is reproduced at Appendix B to this petition.
12. The Riggs case was, of course, not the first time the California Supreme Court declined an opportunity to address the Eighth Amendment implications of such a "dual role" played by prior "strike" convictions. See People v. Cooper, 51 Cal. Rptr. 2d 106, 107 (Cal. Ct. App. 1996) (Three Strikes life sentence for "being an ex-felon in possession of a handgun" held not cruel and unusual), review denied, 1996 Cal. LEXIS 3420 (Cal. June 12, 1996).
13. Every week, the Judicial Council of California publishes a summary of the cases accepted for review by the California Supreme Court the previous week and the issues involved in those cases. (These summaries, from the week of November 17, 1997, through the present, are posted on the Judicial Council of California Web site, at http://www.courtinfo.ca.gov/courts/supreme/recent.htm.) None of the summaries published since the court's denial of review in the instant case (through the summary released January 20, 2000) mention the issue of cruel and unusual punishment. A perusal of the latest edition of California Supreme Court Pending Cases, published by the Daily Journal Corporation, confirms that none of the criminal cases currently pending in the Supreme Court after grants of review involve a cruel and unusual punishment challenge to a Three Strikes life sentence. California Supreme Court Pending Cases, Dec. 28, 1999, at 72-83 (supplement to Los Angeles Daily Journal and affiliated newspapers).
14. Since the great majority of California Court of Appeal opinions in criminal cases are--like the ones in the instant case and (apparently) in Riggs--unpublished, it may be safely assumed that the published cases cited herein represent only a small fraction of the California Supreme Court's recent refusals to review the constitutionality of Three Strikes life sentences. See Judicial Council of California, 1999 Annual Report, Court Statistics Report, at 31 (in fiscal year 1997-98, Courts of Appeal statewide published four percent of their majority opinions in criminal appeals). (The cited report is available on Judicial Council Web site, at http://www.courtinfo.ca.gov/reference/documents/1999csr.pdf.)
15. The Court of Appeal's opinion, which had been published at 82 Cal. Rptr. 2d 334, was automatically depublished by the grant of review. See Cal. R. Ct. 976(d). This petition does not, of course, cite the opinion as authority for any point of law; rather, the opinion is described herein to show that the case was an opportunity for the California Supreme Court to address the Eighth Amendment implications of the Three Strikes law.
16. The order limiting the issues to be argued in Morales apparently is unpublished. Attorney Richard Jay Moller of Redway, California, who represents the defendant in Morales, recounted the order in a phone conversation with the author of this petition. Mr. Moller also stated that the Supreme Court briefing in Morales has been completed and that the briefs addressed only the issue regarding the prosecutor's jury argument.
17. The Court of Appeal's opinion had been published at 82 Cal. Rptr. 2d 278.
18. The opinion in Duhaime was amended on January 10, 2000. The citations and quotations of Duhaime herein are to the opinion "as amended," as it appears on the LEXIS computer database.
19. Of course, in many Three Strikes cases--particularly those in which consecutive 25-years-to-life terms are imposed--the effect on the defendant is the same as a life sentence without parole.
20. The lead and concurring opinions in Harmelin v. Michigan, taken together, suggest that the second and third factors need be considered only when examination of the first factor indicates that the sentence may be grossly disproportionate to the offense. (Opinion at 6 n.5 (citing Harmelin, 501 U.S. at 965 (lead opinion of Scalia, J.) and id. at 1004-1005 (Kennedy, J., concurring)).)
21. In Lynch, the California Supreme Court articulated a three-part test for cruel and unusual punishment under the California Constitution. The test is similar to the three-part test later adopted by this Court in Solem. See Lynch, 503 P.2d at 930-33.
22. As late as 1983, only five states had any kind of sex offender registration requirement. In re Reed, 663 P.2d 216, 222 (Cal. 1983). With the advent of the federal "Megan's Law"--which would punish a state with the loss of federal funds if it failed to adopt a registration scheme for sex offenders (42 U.S.C. § 14071(g)(2)(A))--every state now has put such a scheme in place.
23. The dissenting justices noted: "At the very least, respondent's burglaries and his third-offense drunken driving posed real risk of serious harm to others." Solem, 463 U.S. at 315-16 (Burger, C.J., dissenting).
24. Justice Mosk voted to grant review in the instant case.
25. In non-Three Strikes cases, voluntary manslaughter carries a maximum sentence of 11 years (Cal. Penal Code § 193(a)); carjacking carries a maximum sentence of nine years (Cal. Penal Code § 215(b)); and rape carries a maximum sentence of eight years (Cal. Penal Code §§ 261, 264(a)).
26. Some states' sex offender registration laws treat a second or subsequent conviction for failure to register differently from a first conviction for that offense. Since Mr. Flowers' failure-to-register conviction was his first, only the penalties for a first failure-to-register conviction are discussed herein.
27. Out of an abundance of caution, West Virginia is included in these seven, although that state's case law appears to foreclose the possibility of a life sentence for violation of the sex offender registration law. (Appellant's Opening Br. at 36-37.)