US Supreme Court Briefs

No.01-1127

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

________________

GARY ALBERT EWING

Petitioner,

v.

PEOPLE OF THE STATE OF CALIFORNIA

Respondent.

 

________________

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT

DIVISION SIX

________________

 

Law Offices of Karyn H. Bucur
Karyn H. Bucur,
CA Bar No. 158608
24881 Alicia Parkway, #E-193
Laguna Hills, California 92653
(949) 472-1092

Attorney for Petitioner under
Appointment by the Court of Appeal

 

QUESTION PRESENTED

DOES PETITIONER’S TWENTY-FIVE YEAR TO LIFE PRISON SENTENCE VIOLATE FEDERAL CONSTITUTIONAL PROVISIONS AGAINST CRUEL AND UNSUAL PUNISHMENT BECAUSE HIS SENTENCE IS GROSSLY DISPROPORTIONATE TO THE OFFENSE OF "STEALING GOLF CLUBS"?

The petitioner Gary Albert Ewing respectfully prays that a writ of certiorari issue to review the decision issued by California Court of Appeal, Second Appellate District, Division Six. The California Supreme Court denied review.

OPINION BELOW

On April 25, 2001, the Court of Appeals of the State of California, Second Appellate District, Division Six, filed an unpublished decision in People v. Ewing, Case number B143745. A copy of that order is attached hereto as Appendix "1".

Petitioner filed a petition for review in the California Supreme Court and the petition was summarily denied on July 11, 2001. A copy of that order is attached hereto as Appendix "2"

JURISDICTION

On July 11, 2001, the California Supreme Court denied review in this case. (App."2".) The instant Petition for Writ of Certiorari is filed within 90 days of that order. (Rule 13)

Petitioner invokes the jurisdiction of this Court under Title 28 U.S.C. § 1257 on the ground that his rights under the Eighth Amendment to the United States Constitution were violated.

 

STATUTES INVOLVED IN THIS CASE

 

California Penal Code section 17 (b)

 

§ 17. "Felony," "misdemeanor," and "infraction" distinguished; Reduction of misdemeanors to infractions

(a) A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.

(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison.

(2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor.

(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be

a misdemeanor.

(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.

 

 

 

 

 

California Penal Code section 487(a)

Grand theft is theft committed in any of the following cases:

(a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400), except as provided in subdivision (b).

 

 

California Penal Code section 489(b)

Grand theft is punishable as follows:

(b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison.

 

 

 

California Penal Code § 667 subdivision (b) through (i)

 

§ 667. Habitual criminals; Enhancement; Exceptions

(a) (1) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.

(2) This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this subdivision to apply.

(3) The Legislature may increase the length of the enhancement of sentence provided in this subdivision by a statute passed by majority vote of each house thereof.

(4) As used in this subdivision, "serious felony" means a serious felony listed in subdivision (c) of Section 1192.7.

(5) This subdivision shall not apply to a person convicted of selling, furnishing, administering, or giving, or offering to sell, furnish, administer, or give to a minor any methamphetamine-related drug or any precursors of methamphetamine unless the prior conviction was for a serious felony described in subparagraph (24) of subdivision (c) of Section 1192.7.

(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.

(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following:

(1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.

(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.

(3) The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence.

(4) There shall not be a commitment to any other facility other than the state prison. Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center as provided in Article 2 (commencing with Section 3050) of Chapter 1 of Division 3 of the Welfare and Institutions Code.

(5) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.

(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count

pursuant to subdivision (e).

(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.

(8) Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.

(d) Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as:

(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious

felony in this state. The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive:

(A) The suspension of imposition of judgment or sentence.

(B) The stay of execution of sentence.

(C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.

(D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison.

(2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.

(3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:

(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.

(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony.

(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.

(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.

(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:

(1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.

(2) (A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:

(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.

 

California Penal Code section 1170.12

Aggregate and consecutive terms for multiple convictions; Prior conviction as prior felony; Commitment and other enhancements or punishment

(a) Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one

or more prior felony convictions, as defined in subdivision (b), the court shall adhere to each of the following:

(1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.

(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.

(3) The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence.

(4) There shall not be a commitment to any other facility other than the state prison. Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center as provided in Article 2 (commencing with Section 3050) of Chapter 1 of Division 3 of the Welfare and Institutions Code.

(5) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.

(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count

pursuant to this section.

(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision, the court shall impose the sentence for each conviction consecutive to the sentence for any other

conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.

(8) Any sentence imposed pursuant to this section will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.

(b) Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a felony shall be defined as:

(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. The determination of whether a prior conviction is a prior felony conviction for purposes of this section shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination

that a prior conviction is a prior felony for purposes of this section:

(A) The suspension of imposition of judgment or sentence.

(B) The stay of execution of sentence.

(C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.

(D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison.

(2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.

(3) A prior juvenile adjudication shall constitute a prior felony conviction for the purposes of sentence enhancement if:

(A) The juvenile was sixteen years of age or older at the time he or she committed the prior offense, and

(B) The prior offense is

(i) listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, or

(ii) listed in this subdivision as a felony, and

(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law, and

(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.

(c) For purposes of this section, and in addition to any other enhancements or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:

(1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.

(2)(A) If a defendant has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved, the term for current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of

(i) three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions, or

(ii) twenty-five years or

(iii) the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.

(B) The indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.

(d) (1) Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has a prior felony conviction as defined in this section. The prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2).

(2) The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.

STATEMENT OF THE CASE

On April 10, 2000, petitioner was charged by Information in the State of California with one count of grand theft of personal property and one count of burglary. (CT 25-26.)

The Information further alleged that petitioner suffered four serious or violent prior convictions. (Cal. Pen. Code §§ 1170.12 subd. (a) through (d) and 667 subd. (b) through (i).) (CT 25-26.)

Jury Trial began on June 9, 2000, and concluded on May 14, 2000, when the California jury found petitioner guilty of grand theft of personal property in violation of California Penal Code section 487 subdivison (a) and not guilty of burglary. (CT 36-42, 82-85.)

The trial court sentenced petitioner as a third striker to a total term of twenty-five years to life with possibility of parole. (CT 93.)

Petitioner filed a timely notice of appeal from the judgment of conviction and sentence. (CT 94.) Petitioner argued to the California Court of Appeals that his sentence constitutes cruel and unusual punishment in violation of both federal and state constitutions. Petitioner argued that his sentence is grossly disproportionate to the offense of "stealing golf clubs". In California, the crime is a "wobbler" and the crime could have been sentenced as a misdemeanor.

The California Court of Appeal disagreed and affirmed petitioner’s twenty-five years to life sentence for stealing golf clubs. The California Court of Appeals specifically found that Petitioner’s sentence did not violate the Eighth Amendment. "Nor does his sentence violate the Eighth Amendment. The United States Supreme Court has "repeatedly upheld recidivism statutes" against contentions that they constitute cruel and unusual punishment. (Appendix "1", p. 7.)

Petitioner timely filed a Petition for Review in the California Supreme Court. Petitioner argued that California Supreme Court should grant review to consider if petitioner’s twenty-five years to life sentence for stealing golf clubs violates the Eighth Amendment. On July 11, 2001, the California Supreme Court summarily denied the petition. (Appendix "2").

SUMMARY OF ARGUMENT

Petitioner was sentenced to twenty-five years to life under California’s Three Strike Law for stealing golf clubs from a pro shop. The offense could have been sentenced as a misdemeanor and the penalty for grand theft in California does not exceed one year in prison. Petitioner argues that his sentence violates the Eighth Amendment of the United States Constitution because serving twenty-five years to life for stealing golf clubs is cruel and unusual punishment.

REASONS FOR GRANTING THE WRIT

REVIEW SHOULD BE GRANTED IN THIS CASE BECAUSE CALIFORNIA’S THREE STRIKES LAW CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT OF THE U.S. CONSTITUTION WHERE THE CRIME IS STEALING GOLF CLUBS AND CAN BE CHARGED AS A MISDEMEANOR

1. Summary of Facts

On March 12, 2000, Mr. Joshua Alpert, was working at the pro golf shop at the Lakes At El Segundo Golf Course in Los Angeles County. (RT 347.) He observed petitioner walk into the shop at approximately 8:00 a.m. (RT 350-351.) Petitioner browsed around for about ten to fifteen minutes. (RT 352.) Petitioner purchased a small bucket of golf balls to use at the driving range. (RT 352.) After he made the purchase, petitioner stayed in the pro shop looking at the golf clubs for another five minutes. (RT 353.) Mr. Alpert never saw petitioner with a golf club. Petitioner told him that he was waiting for a friend to play golf. (RT 365-367.)

Petitioner asked Mr. Alpert where the driving range was located. Mr. Alpert instructed petitioner to go out the door and walk left towards the driving range. (RT 355.) As petitioner was walking out the shop, Mr. Alpert noticed that petitioner was limping and turned right towards the parking lot. (RT 355.)

Mr. Alpert called 911. (RT 356.) Officer Richard James Haney and his partner responded to the call and drove to the golf course. (RT 382-382.) Officer Haney saw petitioner in the golf course parking lot. Petitioner turned and walked between two parked vehicles. Petitioner was walking with a stiff leg. (RT 386-387.)

Officer Haney got out of his car, walked toward petitioner, and saw petitioner pull three golf clubs out of his pants. (RT 387.) Mr. Alpert identified the golf clubs as belonging to the shop and also identified petitioner. (RT 388.) The golf clubs sell for $399.00 a piece. (RT 363.) Petitioner was placed under arrest. (RT 389.)

2. A Life Sentence For Stealing Golf Clubs Violates the Eighth Amendment of the United States Constitution Because The Life Sentence Is Grossly Disproportionate To the Crime

California has a sentencing scheme, known as the Three Strikes Law, which mandates a sentencing judge to impose a minimum sentence of twenty-five years to life imprisonment if the person has two prior qualifying felony convictions and the present conviction is any "felony". People v. Superior Court (Romero) 13 Cal. 4th 497, 505 (1996).

In the present case, petitioner received a twenty-five year to life prison sentence pursuant to the California Three Strikes Law for stealing golf clubs. (CT 93.) The crime in this case is known as a "wobbler". A "wobbler" is an offense that could either be classified as either a felony or misdemeanor. The law authorizes trial courts to classify certain offenses at sentencing as a misdemeanor, instead of a felony. (Cal. Pen. Code § 17 subd. (b).)

"Section 17 subdivision (b) authorizes the reduction of "wobbler" offenses–crimes that, in the trial court’s discretion, may be sentenced alternately as felonies or misdemeanors–upon imposition of a punishment other than state prison or by declaration as a misdemeanor after a grant of probation." People v. Superior Court (Alvarez), 14 Cal. 4th 968, 974. (1997)

Petitioner was convicted of grand theft in violation of California Penal Code section 487 subdivision (a). California Penal Code section 487 subdivision (a) is a "wobbler" offense and may be sentenced either as a misdemeanor or felony. People v. Douglas, 79 Cal. App. 4th 810, 813. (2000). A punishment for grand theft in California is punishable by imprisonment in a county jail not exceeding one year or in the state prison. Cal. Penal Code § 489. Petitioner’s prior convictions or "strikes" stemmed from four convictions of robbery and burglary from a single case. Petitioner was convicted of these four convictions on March 8, 1994. (CT 26.)

The Eighth Amendment of the United States Constitution prohibits infliction of cruel and unusual punishment. Under the United States Constitution, the issue is whether or not the sentence is "grossly disproportionate" to the crime. Harmelin v. Michigan 501 U.S. 957, 1001, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991).

The Supreme Court has "repeatedly emphasized that under recidivist sentencing schemes "the enhanced punishment imposed for the [present] offense is not to be viewed as–[an] additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." Riggs v. California 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 789, citing Witte v. United States, 515 U.S. 389, 400.) In this case, twenty-five years to life for stealing golf clubs cannot be justified as a "stiffened penalty" for stealing golf clubs because the actual punishment for the crime does not exceed one year in prison. Cal. Pen. Code section 489.

There are situations when the Three Strikes Law provides appropriate sentences: Sentences under the Three Strikes Law have been held not to constitute cruel and unusual punishment when the defendants have adopted a criminal life style and have demonstrated no intention to function as a responsible member of the community. People v. Cortez, 73 Cal. App. 4th 276, 285 (1999). In Cortez, the court found that Cortez’ twenty-five year to life sentence did not constitute cruel or unusual punishment because he had a history of violent conduct and that he is a threat and danger to the welfare of the community. (Id.)

In the instant case, the trial court found that petitioner, who was recently released on parole, did not pose a threat to commit violent crimes, but only posed a threat to commit theft offenses. (RT 1510.)

Unlike the petitioner in Cortez, the appellant in this case has demonstrated he has the intention of becoming drug free for the remainder of whatever life he has left and intends to function as responsible member of the community by participating as an Aids advocate. (RT 1505-1508.) In addition, the sentence of twenty-five years to life is cruel and unusual punishment for a person who is seriously ill and does not expect to live very long because he stole golf clubs.

"The United States Supreme Court has declared that the basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards." People v. Deloza 18 Cal. 4th 585, 601 (1998). Petitioner’s sentence is not within the limits of civilized standards for the offense he committed.

Several justices of this Court expressed interest in the constitutionality of California Three-Strikes Law: Justice Souter, in a dissent wrote, "Two terms ago this Court denied certiorari in Riggs v. California, 525 U.S. 1114, 142 L. Ed. 789, 119 S. Ct. 890 (1999). The issue was an Eighth Amendment challenge to California’s statutory scheme that allows a petty theft (normally a misdemeanor) to be counted as a third felony for purposes of a three-strikes law, resulting in a sentence of 25 years to life. This case raises the same issue; the value of the goods taken was $43.00. Justice Breyer dissented from the denial of certiorari in Riggs while Justice Stephens filed an opinion respecting the denial, in which Justice Ginsburg and I joined. A principal reason that the three of us were led to concur in the denial of review was the expectation that rulings by other courts on challenges to the California scheme would be valuable to us in any examination of the issue we might ultimately give it. I no longer think this is a sufficient reason to postpone what I assume will inevitably be a decision at some point to examine the matter–On these facts, I would wait no longer. The issue is serious, the state courts have had adequate opportunity to consider it, and the stakes are substantial." (Stanley Durden v. California, (2001) 121 S. Ct. 1183, 148 L. Ed. 2d. 1027)

Petitioner asked the California Supreme Court to take his case and decide the constitutionality of the Three Strikes Law. The California Supreme Court declined. Petitioner now asks this Court to take his case and decide whether or not people convicted in California for misdemeanor type crimes should spent the rest of their lives in prison.

CONCLUSION

For the foregoing reasons petitioner respectfully submits that the petition for writ of certiorari should be granted.

Dated:_____________

Respectfully submitted,

_______________________
Karyn H. Bucur
Attorney for Petitioner

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