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August 30, 2012

California Supreme Court upholds 25-to-life term for sex offender's failure to register as third strike

The California Supreme Court issued a lengthy and nuanced Eighth Amendment ruling today rejecting an offender's appeal of his three-strikes sentence following his conviction for failing to update his sex offender registration.   These paragraphs from the start of the majority opinion in In re Cooley, No. S185303 (Cal. Aug. 30, 2012) (available here), reveal the essentials (and the nuances) of the ruling:

[I]n 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 reason 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.

August 30, 2012 at 10:41 PM | Permalink

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Comments

So it seems they're saying that if you had a sex offender who didn't have a lengthy RAP sheet who was at least trying to comply with the law they would find that would violate the 8th?

Posted by: Guy | Aug 30, 2012 10:49:51 PM

The Real Point of Sex Offender ... Restrictions

Posted on January 17, 2008 by Jamie Spencer

It’s refreshing when an elected politician speaks the truth, especially when they don’t mean to.

There was a segment on McNeil Lehrer this evening titled “Housing Sex Offenders,” which chronicled the very real problems with various versions of Jessica’s Law that have sprung up around the country.

The name “Jessica’s Law” started in Florida, based on the name of a victim, but is now the de facto name given by the media to various and sundry laws dealing with sex offenders.

The report focused on California sex offender residency restrictions. California’s fairly new law prohibits registered sex offenders from living within 2000 feet of parks, playgrounds, schools, etc. Sounds like a great idea but problems in this regard have been well documented.

PBS showed a map of Los Angeles with all the prohibited living places in red. At first, it’s easy to tell that literally almost every place in Los Angeles is covered; and then the announcer let’s us know that the places that are ‘OK’ are almost all business and commercial.

The point of this is not to make folks’ hearts bleed for sex offenders. But let’s acknowledge what the real point of these laws is. Or better yet, let’s hear from San Diego County District Attorney Bonnie Dumanis, who when asked by the reporter the perfunctory ‘where are they supposed to go?’ replied:

"The real intent of Jessica’s Law is to put people that violate children and others in prison and keep them there."

Bravo! We’ve convicted and sentenced the offender, but he’s served his time and now we want to put him back before he reoffends. The constitution prohibits us from going back and adding time to his sentence, so…

http://blog.austindefense.com/2008/01/articles/general/the-real-point-of-sex-offender-residency-restrictions/

Posted by: 6079 | Aug 31, 2012 12:32:03 AM

i think it's an illegal crock of shit myself. Might be diff if he'd FUCKING moved. But not a damn thing changed on his info from one fucking visit to the next.

As far as i'm concerned this is a text book example of an ILLEGAL detention and therefore the man has every legal right ot remove himself from it no matter who he has to HURT or KILL to do it AND once he get's out i hope he goes for those CRIMINAL FUCKTARDS on the bench!

Posted by: rodsmith | Aug 31, 2012 12:56:58 AM

that's it! just make a liar out of me. The way this blasted article reads you would think one t hing. but it's ass backward. must have been written by a damn politician!

This guy looks like a text book example of what needs to be on the registry. Assuming you were dumb enough to let his ass out of prison in the first place. I would not have!

Posted by: rodsmith | Aug 31, 2012 1:03:42 AM

Rod,

Yeah, the way the quoted material is written at first it would seem the case was about the guy who registered and failed to re-register a month later, but it's not. Very poor logical structure IMO.

They should have described the case they were ruling on and only then described why it wasn't like some other case.

Posted by: Soronel Haetir | Aug 31, 2012 1:34:25 PM

I agree with the Texas claim, in a separate case, that it's unfair to single out certain states because of something that's now 2 generations or more ago. It's constitutional and it's understandable, but it's unfair. If the provisions of the VRA are broadly unobjectionable, and I think they are, they should cover the whole country.

Posted by: Abilena | Sep 1, 2012 4:50:41 AM

I work as a reader and note-taker at a local institution of higher learning.

This decision to send a former offender back to prison for merely failing to register, not because he has committed another real crime but for merely failint to register, along with the residency restrictions, could one day come back to endanger both law enforcement and the public at large. After the re-conviction of this individual under the California three-strikes law, some released sex offenders might decide that they have nothing to lose any more by violently defying these laws.

I could see a situation where an offencer, upon receiving an eviction notice from his or her apartment, might retaliate against his/her landlord/landlady or the police by vandalizing his apartment so that the landlord could not rent it out to somebody else without expensive repairs. Already, several residents (quite apart from sex offenders) who have defaulted on either their mortgages or rent bills have defied eviction orders by either destroying their residence place or by holing themselves up and shooting it out with the police. It is only a matter of time before sex offenders decide to mimick these other residents to defy this law.

If failure to register means opening up one for re-imprisonment (especially when COMPLYING with the registration law means makes them a pariah), those people might decide it is better to shoot it out with police officers or to make threats against the local sex offender registry than to peaceably surrender or comply with such a law.

As a law-abiding citizen, I pray this never happens, but these laws are designed in such a matter that they could eventually lead to such consequences if they have not already done so.

Posted by: william r. delzell | Sep 1, 2012 12:34:00 PM

William R Delzell,

If having to comply with registration means an SO may commit a slew of felonies, it is a better indicator that the SO should have been prison than the law is wrong. Also, we are talking three strikes. This means the offender had two prior felonies and it is not accurate to portray this as being put in prison "just for" not registering.

That said, this specific case is one where the law is an a$$. Although the guy should have done a better job of knowing the requirements (I would have, knowing how trigger happy society is with SOs), a little good judgement is in order. He moved and registered just a month before his birthday. If there was ever a good time for the PO or prosecutor to use some discretion, this would be it (assuming there is no back story with this guy we are unaware of).

Posted by: TarlsQtr | Sep 1, 2012 6:54:03 PM

LOL you did the same thing i did tars!

95% of that synapsis deals with the WRONG damn criminal. The only part that describes the REAL subject is down at the bottom!

"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,"

based on that little bit. the man is a 3 time failure who NEVER intended to comply.

Posted by: rodsmith | Sep 1, 2012 11:08:34 PM

Thanks, Rod. That is what I get for skimming instead of reading closely.

Posted by: TarlsQtr | Sep 2, 2012 11:45:56 AM

No matter which is which, it is still wrong to get 25 years for something that isn't even punishment, a civil registration. It's a shell game. At bottom it is a conviction for a thoughtcrime because even if there is no evidence he molested again there is the assumption he was thinking about it. Why else not register? Right? The good news is that this thoughtcrime will cost the state millions before his 25 years are done.

Posted by: 1984 | Sep 2, 2012 3:17:23 PM

oh i agree 1984 the registry as it is now is illegal and unconstutional. BUT unless your ready to go out and kill all the politicians. We're stuck with it till the courts get off their asses and can it.

The best way at this time is to obey the law and then OVER obey it and break them that way! If your state requires email registration. make about 100 new ones a day and then FORCE them to put them in and then remove them the next day when the new batch hits!

about once a m onth visit and tie up a law enforcment agent for an hr or two taking new photos' when you can't decide between a hairless face, or a beard, or a mustash! there are many ways to hit them where it hurts...THE WALLET!

and they are LEGAL!


yea tarls i did the same thing. most people would think the first 2 paragraphs would be talking about the ACTUAL case. Not a completley diff one.

Posted by: rodsmith | Sep 2, 2012 8:20:54 PM

Rod, when law enforcment goes on strike like that it is a rule-based slowdown, which just about cripples the system when law enforcment obeys the law. That is a good idea.

Posted by: 1984 | Sep 3, 2012 4:49:19 PM

yep and if each one on the registry tied up just ONE extra hr a year that's cose to a MILLION MANHOURS wasted.

but even if 10% did it that's 80,000 of them and trust me if they wanted to...it would be a lot more than ONE hour a year. In some cases could run to 2 or 3 PER VISIT! that coudl run into 100's of MILLIONS of manhours QUICKLY!

the system does NOT have the extra to absorbe it!

Posted by: rodsmith | Sep 3, 2012 11:57:09 PM

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