People v. Carmony

¶1In this case, the majority holds that the trial court’s decision not to dismiss a strike against a defendant pursuant to Penal Code section 1385, subdivision (a) is reviewable under an abuse of discretion standard, and that the trial court in this case did not abuse its discretion in refusing to dismiss any strikes. The majority leaves open the issue of whether the resulting sentence of 26 years to life “violates the constitutional guarantees against cruel and/or unusual punishment or double jeopardy . . . .” (Maj. opn., ante, at fn. 6.) Obviously, it would be an abuse of the trial court’s discretion not to dismiss the strike if refusing to do so leads to a sentence that violates the state or federal prohibition against cruel and unusual punishment. Therefore, the majority holding that the trial court did not abuse its discretion is actually a holding that it did not abuse the statutory discretion given to it by section 1385, subdivision (a) and the “Three Strikes” law. In arriving at that holding, the majority makes clear that there is a class of cases in which an appellate court can determine, without reaching any constitutional issues, that the trial court abused its discretion on statutory grounds.

¶2This class of cases falls essentially into two categories, which may be termed procedural and substantive. The former occurs when the trial court proceeds in an improper manner, i.e., “where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (Maj. opn., ante, at p. 378.) The latter occurs when, notwithstanding the lack of the above irregularities, the resulting sentence is clearly erroneous because “the relevant factors described in [People v.] Williams [(1998)] 17 Cal.4th 148 [69 Cal.Rptr.2d *381917, 948 P.2d 429],[1] manifestly support the striking of a prior conviction . . . (Maj. opn., ante, at p. 378.)

¶3The majority concludes that the sentence in this case falls into neither of those two categories. I agree in light of the extent of defendant’s prior criminal record and his poor prospects. And yet, it is difficult to escape the conclusion that the electorate that enacted the Three Strikes law did not intend to impose a life sentence on someone whose last offense was a technical violation of the sex offender registration statute—failing to register within five days of his birthday although he had registered a month earlier and had not changed his address since then—that posed no danger to the public. This case joins the growing ranks of cases in which life sentences were imposed after the commission of minor felonies. (See 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”].) Subject to the caveat that the sentence may yet be overturned on constitutional grounds, I reluctantly concur in the majority opinion. But because the standard for what constitutes cruel and unusual punishment is itself extremely rigorous (see, e.g., Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144, 123 S.Ct. 1166] [upholding 50-year-to-life sentence for defendant convicted of two petty thefts with a prior conviction]), the determination of whether such sentences are reasonable lies chiefly with the electorate in its capacity to amend the law.

¶4Chin, J., concurred.