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People v Carmony

6-29-2005 California:

People v Carmony
26 Cal.Rptr.3d 365 (2005)
127 Cal.App.4th 1066

This case raises the question whether there is an offense so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions.

Although defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law (former Pen.Code, § 290, subd. (a)(1)(A))1, he failed to "update" his registration with the same information within five working days of his birthday as also required by law. (Former Pen.Code, § 290, subd. (a)(1)(C).) Defendant's parole agent was aware defendant's registration information had not changed and in fact arrested defendant at the address where he was registered.

Defendant pled guilty to the charge of failing to register within five days of his birthday and admitted he had suffered three prior serious or violent felony convictions (Pen.Code, §§ 667.5, subd. (c) and 1192.7, subd. (c))2 and had served a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced him under the "Three Strikes" law to a prison term of 25-years-to-life (§§ 667, subds. (b)-(i), 1170.12) plus a one-year consecutive term for the prior prison term. (§ 667.5, subd. (b).)

In an earlier opinion we held the trial court abused its discretion in refusing to strike two of defendant's three prior convictions. The Supreme Court reversed the decision and remanded the case for our consideration of the constitutional issues not reached in our prior decision.

On appeal, defendant claims the application of the Three Strikes law to the offense of failing to duplicate his registration as a sex offender violates the state and federal prohibitions against cruel and/or unusual punishment, double jeopardy and ex post facto laws, and his federal right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296, 301-302, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403, 412 (Blakely.)

It is a rare case that violates the prohibition against cruel and/or unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law.

The state and federal prohibitions against cruel and/or unusual punishment require that the sentence be proportionate to the crime. Accordingly, the current offense must bear the weight of the recidivist penalty imposed. Although the Legislature may impose increased penalties on repeat offenders, recidivism remains a factor in aggravation and may not serve as the reason for imposing increased punishment where the predicate offense serves no rational purpose of the state.

The purpose of the sex offender registration law is to require that the offender identify his present address to law enforcement authorities so that he or she is readily available for police surveillance. In this case the defendant did so one month prior to his birthday and was in fact present at his registered address when the arrest for the present violation was made. The stated purpose of the birthday registration requirement was (and still is) to "update" the existing registration information. (Former § 290, subd. (a)(1)(C).)

Here, there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant re-register within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone (Subtle Odd Law Fact).

Because a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions. We shall remand the matter to the trial court for resentencing.3

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