No. 01-6978

In The Supreme Court Of The United States

Gary Albert. Ewing, 

Petitioner-Appellee,
vs.

People of The State of California,

	Respondent-Appellant

On Writ of Certiorari to the
Court of Appeal for the State of California,
Second Appellate District

Brief On The Merits Of Amicus Curiae
California District Attorneys Association
_________________________________

DENNIS L. STOUT
District Attorney
County of San Bernardino
State of California
LANCE A. CANTOS
Deputy District Attorney
MARK A. VOS
Deputy District Attorney

GROVER D. MERRITT*
Lead Deputy District Attorney
*Counsel of Record for Amicus Curiae CDAA
Appellate Services Unit 
412 West Hospitality Lane
San Bernardino, CA 92415

GARY T. YANCEY
District Attorney
Contra Costa County
State of California
L. DOUGLAS PIPES
Senior Deputy District Attorney
Post Office Box 670
Martinez, California 94553

QUESTIONS PRESENTED

	1.	Whether California’s Three Strikes law, providing for a twenty-five year-to-life prison term for a third strike conviction, violates the Eighth Amendment’s prohibition against cruel and unusual punishment when applied to a recidivist defendant whose criminal history includes four violent or serious prior felony convictions, and whose final strike conviction is for felonious grand theft?

TABLE OF CONTENTS

Question Presented	i
Table of Contents	ii
Table of Authorities	iv
Identity and interest of amicus curiae	1
Summary of Argument	2
 I. There is no inference of gross disproportionality. Therefore neither intra- nor interjurisdictional analysis is required	3
a. The present offense and the severity of the sentence are only one part of the threshold equation. Criminal history is no less important a factor	4
b. ewing’s record	17
c. analysis	22
1. Respondent’s felony strikes were violent and serious	22
2.   The gravity of ewing’s present grand theft offense should not be downplayed	25
Conclusion	28

TABLE OF AUTHORITIES

Cases
Beverati. v. Smith, 120 F.3d 500 (4th Cir. 1997)	14
Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2002)	13, 16
Graham v. West Virginia, 224 U.S. 616 (1912)		15
Hawkins v. Hargett, 200 F.3d 1279 (10th Cir. 1999)	18
Hutto v. Davis, 454 U.S. 370, 70 L.Ed.2d 556, 102 S.Ct. 703 (1982)	5, 6
Hutto v. Weber, 275 F.3d 682 (8th Cir. 2001)		13
In re Anderson, 69 Cal.2d 613, 73 Cal. Rptr. 21, 447 P.2d 117 (1968)	25
In re Lynch, 8 Cal. 3d 410, 105 Cal. Rptr. 217, 503 P.2d 921 (1972)	16
McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992), cert. denied 506 U.S 849 (1992)		7, 8, 9, 10
People v. Ayon, 46 Cal.App.4th 385, 53 Cal.Rptr.2d 853 (1996)	14
People v. Banks, 53 Cal.2d 370, 1 Cal. Rptr. 669, 348 P.2d 102 (1959)	25
People v. Bozigian, 270 Cal.App.2d 373, 75 Cal.Rptr. 876 (1969)	25
People v. Cline,  60 Cal.App.4th 1327, 71 Cal.Rptr.2d 41 (1998)	16
People v. Davis, 18 Cal.4th 712, 720, 76 Cal.Rptr.2d 770 (1998)	24
People v. Dotson, 16 Cal.4th 547, 66 Cal.Rptr.2d 423, 941 P.2d 56 (1997)	26
People v. Estes, 147 Cal.App.3d 23, 194 Cal.Rptr. 909 (1983)	27
People v. Ewing, No. B143745, slip op. at 2 (Cal. Ct. App. April 25, 2001.)	17
People v. Garcia, 20 Cal.4th 490, 85 Cal.Rptr.2d 280, 976 P.2d 831 (1999)	26
People v. Hines, 210 Cal.App.3d 945, 950-951; 259 Cal.Rptr. 128, (1989)	24
People v. Ingram, 40 Cal.App.4th 1397, 1416, 48 Cal.Rptr.2d 256 (1995)	14
People v. Lawrence, 24 Cal.4th 219, 99 Cal.Rptr.2d. 570, (2000)	26
People v. Superior Court (Alvarez), 14 Cal.4th 968, 60 Cal.Rptr.2d 93, 928 P.2d 1171 (1997)	25
People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996)	26
People v. Ulibarri, 232 Cal.App.2d 51, 42 Cal.Rptr. 409 (1965)	18
People v. Washington, 243 Cal.App.2d 681, 52 Cal.Rptr. 668 (1966)	25
People v. Weddle, 1 Cal.App.4th 1190, 2 Cal.Rptr.2d 714 (1991)	28
Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)	23
U.S. v. Brant, 62 F.3d 367 (11th Cir. 1995)	10
U.S. v. Frisby, 258 F.3d 46 (1st Cir. 2001)	13
U.S. v. Kratsas, 45 F.3d 63 (4th Cir. 1995)	14

United States v. Meirovitz, 918 F.2d 1376 (8th Cir. 1990)	15
United States v. Organek, 65 F.3d 60 (6th Cir. 1995)	15
Statutes
Cal. Pen. Code §17	25
Cal. Pen. Code §17(a)	18
Cal. Pen. Code §211	27
Cal. Pen. Code §460(b) and §461	18 
Cal. Pen. Code §487(a).	18
Cal. Pen. Code §489(b)	18
Cal. Pen. Code §667 (a)	24
Cal. Pen. Code §667(b) through (i)	12
Cal. Pen. Code §§667(c)	24
Cal. Pen. Code §667.5(c)	12, 23
Cal. Pen. Code §667.5(c)(21)	23
Cal. Pen. Code §667.5(c)(9)	22
Cal. Pen. Code §1170.12	12, 24
Cal. Pen. Code §1170.125	23
Cal. Pen. Code §1192.7(c)	12
Cal. Pen. Code §1192.7(c)(18)	22
Cal. Pen. Code §§1192.7 (a) and (b)	24
Cal. Pen. Code §1210.1(b)(1).	24
Cal. Pen. Code §1203(k).	24
Cal. Pen. Code §1203.085(a)(b)	24
Cal. Pen. Code §1270.1	24 
Cal. Pen. Code §1275(c)	24 
Cal. Pen. Code §1385	26

Other Authorities
David A. Anderson, The Aggregate Burden of Crime, 42 J. Law & Econ. 611, 638 (Univ. Chi. 1999)	27
Richard C. Hollinger, PhD & Jason L. Davis, 2001 National Retail Security Survey (University of Florida 2001)	27
Supreme Court Rules
Rule 37.6	1

IDENTITY AND INTEREST OF AMICUS CURIAE
	
The California District Attorneys Association (CDAA) has more than 2,400 prosecutors in its membership.  We present this amicus brief, pursuant to Supreme Court Rule 37, in support of Petitioners.  The elected District Attorneys of San Bernardino and Contra Costa Counties submit this amicus brief as the attorneys authorized to represent CDAA.  We also have obtained and filed the parties’ written consent to this brief.
	
CDAA has a strong interest in preserving California’s right to sentence recidivist offenders in the manner which the California State Legislature and the California electorate have deemed appropriate.  CDAA seeks to ensure that California retains its right to develop an independent penological scheme.  As representatives of California’s citizens, CDAA also has a compelling interest in guarding against the erosion of the basic tenets of federalism.  

Finally, because CDAA is comprised of officers sworn by oath to protect the people of California from criminals, especially from incorrigible recidivists, we write in hopes that Gary Albert Ewing will be made to serve his entire sentence.

SUMMARY OF ARGUMENT
	
Appellant Gary Albert Ewing and amicus curiae in his support, Families Against Mandatory Minimums (FAMM), overemphasize the weight to be given the nature of the present offense in the threshold comparison of offender and sentence.  They take their cues from footnote 21 in Solem v. Helm, 463 U.S. 277, 77 L.Ed. 2d 637, 103 S.Ct. 3001 (1983), which emphasizes the present crime to the detriment of the merely “relevant” criminal history.  We believe that that formula was incorrect then, but has since been critically modified such that today a recidivist’s history weighs at least as much or more as his present crime.  

When Ewing’s criminal history is given its proper weight during the threshold comparison, there can be no inference of gross disproportionality.  Intrajurisdictional and interjurisdictional analyses are rendered unhelpful and unnecessary, and thus there is no Eighth Amendment violation.  (Hence we present no comparative analysis in this brief.  Besides, we suppose such comparison will have been already thoroughly briefed by the parties.)

We ask this Court: (1) to assign recidivist criminal history its proper weight in the threshold comparison of Eighth Amendment proportionality analysis, (2) to hold that  because of Ewing’s long and violent past that there is no inference of gross disproportionality of his sentence to his crime, and therefore, (3) to determine that appellant Ewing’s sentence did not constitute cruel and unusual punishment.

I.
THERE IS NO INFERENCE OF GROSS DISPROPORTIONALITY.  THEREFORE NEITHER INTRA- NOR INTERJURISDICTIONAL ANALYSIS IS REQUIRED.

Appellant Gary Albert Ewing has been busy committing crimes and sullying his adult criminal record since at least 1984, before six members of this Court joined it.  Sixteen years of crimes have brought Ewing within the ambit of California’s Three Strikes law, yet he has the temerity to insist that this Court focus primarily on his present crime.

Ewing’s threshold comparison of the gravity of his crime to the severity of his sentence is flawed.  He overemphasizes the nature of his present grand theft offense at the expense of his rotten criminal history.  This myopia may not be entirely Ewing’s fault.  Solem v. Helm, 463 U.S. 277, 77 L.Ed. 2d 637, 103 S.Ct. 3001 (1983), upon which he heavily relies, led the way.  But Harmelin v. Michigan, 501 U.S. 957, 115 L.Ed.2d 836, 111 S.Ct. 2680 (1991) changed the analysis.  Today, in the post-Harmelin world, an offender’s recidivist history can properly weigh as much or more than the nature of his present offense or the severity of the corresponding sentence.  

When Ewing’s history is given its proper weight in the threshold comparison, there can be no reasonable inference of gross disproportionality.  Mr. Ewing now reaps no more than that which he has long been sowing.

A.
THE PRESENT OFFENSE AND THE SEVERITY OF THE SENTENCE ARE ONLY ONE PART OF THE THRESHOLD EQUATION.  CRIMINAL HISTORY  IS NO LESS IMPORTANT A FACTOR.

In Solem v. Helm, supra, 463 U.S. 277, a majority of the Court embraced the principle that the Eighth Amendment’s ban of cruel and unusual punishments required that prison sentences for terms of years be proportional to their corresponding offenses.  “In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.” Id. at 290.

The Solem Court’s formula for proportionality review of prison sentences first “look[s] to the gravity of the offense and the harshness of the penalty.” Id.  at 290-291.  Second, it “compare[s] the sentences imposed on other criminals in the same jurisdiction.” Id. at 291.  Third, it “compare[s] the sentences imposed for commission of the same crime in other jurisdictions.” Id.  

Conspicuously absent from the express portion of three-part Solem formula is recidivist history.  We think it should have been given a more prominent part in the equation, especially since Solem was a recidivist case.  If the Eighth Amendment still permits more severe punishment of recidivists, then an offender’s criminal history logically belongs within the first Solem prong, the comparison of the gravity of the offense to the sentence.  That is not to say that the Court failed to take Helm’s recidivism into account; it at least purported to do so.  But it gave it very short shrift, and did so expressly.  After characterizing Helm’s present felony as “passive” and relatively minor, the Court gave genuflected to the importance of recidivist history:

Helm, of course, was not charged with simply uttering a “no account” check, but also with being a habitual offender.  [n21]  And a state is justified in punishing a recidivist more severely than it punishes a first offender. . .

Id. at 296, emphasis added.  Nevertheless, the Court casually slipped into footnote 21 this key to its threshold analysis:

We must focus on the principal felony — the felony that triggers the life sentence — since Helm already has paid the penalty for each of his prior offenses.  But we recognize, of course, that Helm’s prior convictions are relevant to the sentencing decision.

Id., emphasis added.

Where did this rule come from? How long has it existed?  Where are the authorities upon which it rests?  No cases are cited; no authority is given.  Yet this “focus on the principal felony” myopically skews the entire proportionality formula.  Surely this explains much of why Mr. Helm dodged his life sentence, while Mr. Rummel was unable to dodge his.

If footnote 21 is a correct statement of the law, that even a recidivist record is merely “relevant” to recidivist sentencing decisions, then forests of convictions must go lightly regarded as sentencing courts stare only at the particular felonious tree before them.  It comes as no surprise, then, that such overemphasis of present “minor” felonies should lead to inferences of gross disproportionality.  This is precisely what happened in Andrade v. Attorney General of California 270 F.3d 743 (9th Cir. 2001) (cert. granted April 1, 2002, 2002 U.S. LEXIS 2158), where that court expressly embraced Solem’s  footnote 21. Id. at 759.  But, like Bugs Bunny’s wrong turn at Albuquerque, the Solem Court’s “focus on the principal felony” predetermines the destination.

But we cannot believe that the Eighth Amendment to the United States Constitution makes the tip of an offender’s iceberg of more concern than the ominous mass lurking below.

We suggest that Solem proportionality analysis was critically modified by Harmelin v. Michigan, supra, 501 U.S. 957 (1991), so that recidivist history counts for more during the threshold comparison of offense and sentence.  While it is true that Harmelin was not a recidivist case, it appears to have modified Solem nonetheless.  According to the Fifth Circuit Court of Appeal in McGruder v. Puckett 954 F.2d 313 (5th Cir. 1992), cert. denied 506 U.S 849 (1992), a Harmelin “head-count” makes this apparent.  

In the Harmelin decision, Justice Scalia and Chief Justice Rehnquist thought the Eighth Amendment included no proportionality requirement for terms-of-years sentences. Harmelin, supra, at 965.  Justices White, Blackmun, Stevens and Marshall, dissenting from the judgment, continued to think that Solem properly set forth the law on proportionality. Id. at 1018,  1027-1028.  

But Justices Kennedy, O’Connor and Souter discerned instead that the Eighth Amendment included only a “narrow proportionality principle.” Id at 997, (Kennedy, J., concurring in judgment), emphasis added.  While the three justices agreed that this narrow proportionality principle applies to prison sentences for terms of years, they also taught that:

The Eighth Amendment does not require strict proportionality between crime and sentence.  Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime.

Id. at 1001, emphasis added.

This means that the second and third Solem factors, 

intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.

Id. at 1005, emphasis added.

The Harmelin split means that only four justices—a minority—continued to support the mandatory application of all three Solem factors.  A majority did not.  This can only mean that Solem, as understood by Justice White’s group, is either dead or has been “eviscerated.” 

We think that Harmelin changed more than the triggering mechanism for comparative analyses of the second and third Solem factors.  It also appears that in the post-Harmelin world, recidivism has assumed its rightful place in the first Solem factor, the threshold comparison of offense to sentence.

In McGruder v. Puckett 954 F.2d 313, supra, petitioner McGruder had been convicted in Mississippi for auto burglary for stealing 20 cases of beer from a truck.  Id. at 314.  He was sentenced to life without possibility of parole under that state’s habitual offender statute. He unsuccessfully appealed the denial of his federal petition for writ of habeas corpus, challenging his sentence as cruel and unusual on a theory of disproportionality under the Eighth Amendment.

After analyzing what Harmelin did to Solem, the McGruder court observed:

We think that [petitioner’s disproportionality] argument ignores the essence of the statute under which he was sentenced. Upon his conviction for auto burglary, he was sentenced under the habitual offender statute. Under that statute, his sentence is imposed to reflect the seriousness of his most recent offense, not as it stands alone, but in the light of his prior offenses. [Citation and footnote omitted.] We therefore review his sentence.

Id. at 316, emphasis added.  The court then “turn[ed] to consider the gravity of McGruder’s offenses in relation to the harshness of his sentence.”  Id., emphasis added.  In other words, the court considered the petitioner’s entire recidivist record in its threshold Solem comparison—or now more accurately, Harmelin comparison.  McGruder’s previous crimes were not merely “relevant,” to the analysis as Solem suggested in its footnote 21, but were now an essential and weighty part of the analysis.

McGruder’s history included convictions for armed robbery, burglary, larceny, and escape.  The court noted that two of the convictions were for crimes of violence per se. Id. at 314, 316.  Predictably, the court held that as a matter of law there was no disproportionality at all, “much less gross[ ] disproportionality.” Id. at 317, emphasis in original.  

Importantly, the McGruder court engaged in no comparative analysis whatsoever.  Perhaps more importantly, the petitioner’s present offense was not described by the court as serious, or violent, or christened with some other magic label sufficient to avoid comparative intrajurisdictional and interjurisdictional analyses.  In fact, the court said of the present auto burglary that it was a “concededly  lesser offense than the earlier offenses.” Id. at 317., emphasis added.  Starkly contrary to Solem’s  footnote 21, the McGruder court actually gave greater emphasis to McGruder’s criminal history than it did his present offense.

In U.S. v. Brant, 62 F.3d 367 (11th Cir. 1995), the Eleventh Circuit followed McGruder’s reasoning in upholding against a cruel-and-unusual challenge a 15.66 year prison sentence for manufacturing marijuana where the defendant had prior state court convictions for growing marijuana with intent to distribute, selling marijuana, armed robbery, and escape. Id. at 367. The court considered Brant’s criminal history along with the severity of the present offense when it rejected the need to engage in comparative analysis.  Id. at 368.

The McGruder approach makes sense because it was a recidivist at bar, and it was his recidivism that got him there.  Asserting that the present offense must be given more weight, while the recidivism remains merely “relevant” is nothing more than a means to divert attention from a rotten record.  California has not punished or incapacitated Ewing for stealing three golf clubs.  We have done so for stealing them while having his criminal history.  Ewing’s prior convictions have made him a different, more guilty soul.  As Justice Sneed explained about Andrade:

While petty theft offenses are admittedly not grave, Appellant’s recidivist nature makes his current activity much more serious.

Andrade v. Attorney General, supra, 270 F.3d 743, at 771, emphasis added. (Sneed, J., dissenting.).  

Thus there is grand theft—and—“much more serious grand theft.”  A spectrum of guilt necessarily must span the range between the two.  Given a particular value of stolen property, the variable that alone accounts for that spectrum is criminal history.  In other words, there is nothing meaningful but the criminal record to distinguish between the gravity of one offender’s theft crime and another’s. This principle is manifest in those, like Ewing, who sin so many times that they acquire “recidivist natures.”  These are the predators amongst us who have become predictably felonious—and progressively more guilty with each new crime, regardless of each crime’s gravity in the abstract.  

Logically, then, a recidivist offender’s criminal record in recidivist cases goes way beyond “relevant” and ought to be the paramount consideration.

And where recidivist records are properly considered in California third strike cases, the need for comparative analysis should be rare indeed, because “third strikers” by definition will have committed at least two felonies from either the “serious” or “violent” felony lists, or both. (Cal. Pen. Code §667(b) through (i), and §1170.12.)  While it has been held that “no penalty is per se constitutional,” (Solem v. Helm, supra, at 290), one sentenced to 25-years-to-life as Ewing was, will always have a worse criminal record than Rummel, (whose three minor crimes got him a life sentence) and Helm, and, arguably, Harmelin as well.  And parole is no distinction; Ewing has the possibility of parole as did Rummel.  True, Ewing has to wait twice as long, but his record is at least twice as bad.  (See discussion, Section B, infra.) Besides, even Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2002) acknowledged that “differences in age on release” cannot be “determinative.”  Eighth Amendment analysis “tak[es] into account only those personal circumstances that may mitigate one’s culpability in committing the crime.” [Citation.] Id. at 1028, emphasis added.  Parole, obviously, has nothing to do with culpability.

The need for comparative analysis was also rejected in Hutto v. Weber, 275 F.3d 682 (8th Cir. 2001), where the court upheld consecutive state prison sentences of 60 years for attempted escape plus 25 years for burglary, with possible parole eligibility in the year 2013 (assuming accrual of maximum “good time” credits).  The District Court had considered the facts behind Hutto’s prior felony burglary and theft convictions and determined that his criminal history was “essentially non-violent,” and “not as serious as the appellees have attempted to portray it.” Id. at 684.  The Court of Appeals shared the District Court’s concerns about Hutto’s “relatively non-violent criminal history and minor role in the attempted escape. . .” Id. at 685.  Even so, following Harmelin, the court expressly rejected the need to engage in comparative analysis, and agreed with the District Court that “Hutto’s sentence is not disproportionate to his crime in the constitutional sense.” Id.

In U.S. v. Frisby, 258 F.3d 46 (1st Cir. 2001), the court held that a 151-month repeat-offender sentence for a federal conviction for selling 0.8 grams of heroin was not grossly disproportional.  The defendant had submitted comparative sentencing statistics, but the court rejected them, not only because they were inapposite (for failing to compare sentences for repeat offenders with the same from other jurisdictions), but because there simply was no inference of gross disproportionality from the threshold comparison.  This was because:

Frisby was sentenced as a career offender, not simply as a drug dealer.  His sentence reflects a judgment not only about the severity of his controlled substance offenses, but also about the danger of his persistent recidivism.

Id. at 50, emphasis added.  Likewise, our Three Strikes law “reflects a judgment” about the danger of Ewing’s persistent recidivism.

And the Fourth Circuit Court of Appeals has gone so far as to hold “repeatedly” that “outside the context of a capital sentence a proportionality review is necessary only with respect to sentences of life imprisonment without the possibility of parole.”  Beverati. v. Smith, 120 F.3d 500, 504-505 (4th Cir. 1997), emphasis added, citing U.S. v. Kratsas 45 F.3d 63, 67 (4th Cir. 1995).  Other courts have held likewise. (See, e.g., United States v. Organek, 65 F.3d 60, 63 (6th Cir. 1995) [“This Court ‘will not engage in a proportionality analysis except in cases where the penalty imposed is death or life in prison without possibility of parole.’ ”]; and United States v. Meirovitz, 918 F.2d 1376, 1381 (8th Cir. 1990) [“However, because Meirovitz was sentenced to life without parole, we will engage in the rare review of the constitutionality of a district court sentence.”] 

But these post-Harmelin cases really present no new justification for the principle that a recidivist’s record is not subordinate to the nature of the present offense.  This had been understood, apparently, for two hundred years, and official doctrine for at least 90:

The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England.  They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted. Statutes providing for such increased punishment were enacted in Virginia and New York as early as 1796, and in Massachusetts in 1804. . .

Graham v. West Virginia, 224 U.S. 616, 623 (1912), emphasis added. So, it is not the “general criminal tendency,” per se, but the aggravated guilt that dooms the habitual offender.  Unfortunately, this simple—and constitutional—justification was lost in Andrade and especially Brown.

But California has long understood this and has for decades examined offender history as a critical component of the threshold comparison in cruel and unusual analysis.  In People v. Cline,  60 Cal.App.4th 1327, 71 Cal.Rptr.2d 41 (1998), for example, where 25-to-life under Three Strikes was imposed upon conviction for grand theft and commercial burglary, the court said it “(1) examines the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society . . .” Id. at 1337, citing In re Lynch , 8 Cal. 3d 410, 425 [105 Cal. Rptr. 217, 503 P.2d 921 (1972)], emphasis added.  Only after this threshold comparison do California courts perform any comparative analysis.   Under this formula, it becomes difficult for those in Ewing’s shoes to conjure up any inference of gross disproportionality. 

Respectfully, amicus asks this Court to rule that in habitual offender cases such as this, the offender’s criminal history may be as important or more so in the threshold comparison of proportionality analysis.

B.
EWING’S RECORD.

On March 12, 2000, Appellant Gary Albert Ewing walked into a golf pro shop and shoplifted three golf clubs worth $1,200. (People v. Ewing, No. B143745, slip op. at 2 (Cal. Ct. App. April 25, 2001.) He was observed by a witness, arrested by police, and charged as a “Three-Striker” with felonious grand theft and second degree (“commercial”) burglary.  The jury found him guilty on the grand theft count, but acquitted him of the commercial burglary.  On July 18, 2000, the trial court found true special allegations making Ewing a Three Strike offender punishable by 25-years-to-life in state prison.  On August 3, 2000, the trial court imposed that sentence.

Ewing was approximately 38 years old at the time of the present offense, as well as at his subsequent trial, conviction, and sentencing.  Ewing has been on probation, parole, or incarcerated almost continuously since at least 1984, when Ronald Reagan had yet to embark on his second presidential term.

A careful reading of the record reveals that Ewing was convicted of at least 13 crimes before committing his present final strike offense, including at least five felonies, with the remainder being misdemeanors.  

In November of 1984, Ewing committed grand theft in Ohio and sustained a conviction.  The rest of his convictions of which we are aware occurred in California.

In November of 1988, Ewing was convicted of grand theft for stealing a car and was sentenced to three years probation with one year in Los Angeles County jail.

In September of 1990, Ewing was convicted for petty theft with a prior (Cal. Pen. Code §666), and was sentenced to three years probation—again—and ordered to spend 60 days in county jail.

In August of 1992, Ewing was convicted of misdemeanor battery (Cal. Pen. Code §242), and given two years probation and ordered to spend 30 days in county jail.

Also in August of 1992, Ewing was convicted separately convicted of theft—again. (Cal. Pen. Code §484.).  He was given a year probation and 10 days in jail.

In January of 1993, Ewing was arrested for burglary (Cal. Pen. Code §459) and obstruction of justice (Cal. Pen. Code §148.9 [false I.D. to peace officers.]  He was convicted for violating the latter, given one year probation and 60 days in jail.

In February of 1993, Ewing was convicted for possession of drug paraphernalia (California Health and Safety Code §11364), granted three years probation and ordered to serve six months in county jail.

In September 1993, Ewing was convicted for appropriating lost property (Cal. Pen. Code §485) after having been charged with petty theft with a prior. (Cal. Pen. Code §666.)  He received two years probation and 10 days in jail.

Also in September of 1993, in a separate case, Ewing was convicted of carrying a concealed firearm. (Cal. Pen. Code §12020(a).)  This conviction looks suspiciously like armed burglary because it was charged with criminal trespass. (Cal. Pen. Code §602.5.)  At any rate, it was a misdemeanor and he got one year probation and one month in county jail. 

In late 1993, Ewing distinguished himself from Helm by becoming a serious and violent felon.  On October 22, 1993, he burglarized the apartment of LaFaye Maddox, at night and while she was home in bed.  She awoke to find Ewing still there.  Ewing took some items of minor value and left his fingerprints on a wine glass.  Ewing was convicted of this burglary as Count 4 in the 1993 information

On the afternoon of November 27, 1993, Lloyd Martinez returned home to his apartment to find that it had been burglarized.  Keys to Martinez’ garage and to the apartment security complex had been stolen.  The keys were recovered from Ewing when police arrested him.  Ewing was convicted of this burglary as Count 3 in the 1993 information.

Early the following morning, at approximately 3:00 a.m., apartment resident Steve Jordan was doing laundry in the laundry room when entered and accosted Jordan.  Ewing told him he had a gun and demanded money.  The man saw only a flashlight in Ewing’s waist band and tried to shove him away.  Ewing stood his ground and instead of going away, produced a knife with a six-inch blade, gained quick compliance by threatening his victim’s life, robbed him of money and credit cards, forced the victim to provide access to his apartment, and fled.  Ewing was convicted on this residential robbery and burglary as Counts 1 and 2 of the 1993 information.

For these four violent and serious crimes, Ewing was sentenced to nine years, eight months in state prison.

Ewing was on parole nine months when he committed his present grand theft of expensive golf clubs.  And now he insists that the Eighth Amendment cares more how his present crime looks when set alongside his large sentence, than it does his past crimes.  Hogwash.  

The present crime is Ewing’s sixth felony. We agree with the presentence probation report, which characterized the present crime as “serious,” and Ewing as an obvious “threat to the community.”  There were five factors in aggravation and not a single one in mitigation.

C.	ANALYSIS.
	
The only way to infer gross disproportionality here is to perform the threshold comparison while wearing those special glasses that shrink the present offense, magnify the sentence, and blind one to this offender’s persistent and, at times, violent past.  But that perspective is not the law.

1.	Respondent’s Felony Strikes Were Violent and Serious.
	
Respondent’s “felony strikes” consisted of three convictions for first-degree residential burglary and one first-degree residential robbery at knifepoint.  It should be undisputed that the robbery and associated burglary of Steve Jordan were both violent in the abstract by any objective standard.  Additionally, both crimes were “serious felonies” (Cal. Pen. Code §1192.7(c)(18), and the robbery was a “violent felony.” (Cal. Pen. Code §667.5(c)(9).)

Moreover, it is possible that the Jordan burglary and the Maddox burglary were “violent felony” strikes when he committed his present offense, for the simple reason that his victims were present while he burglarized them them. (Cal. Pen. Code §667.5(c)(21) [proscribing as a violent felony any residential burglary where it is charged and proved that the victim is present during the crime], passed by voter initiative Proposition 21, March 7, 2000, which took effect the following day, March 8, 2000.)

This means that of Ewing’s four strike crimes, all are “serious felonies,” three are arguably “violent felonies,” and two were unquestionably violent in the abstract.  We think the Maddox burglary is also violent in the abstract.  (Imagine the abject terror Ms. Maddox must have felt upon waking in the wee hours to find a strange intruder in her home.)  However, even if a residential burglary does not actually involve violence, it has great potential for violence.

In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Court recognized that “burglary is one of ‘the most common violent street crimes,” and the character of a burglary “can change rapidly, depending on the fortuitous presence of the occupants of the home when the burglar enters, or their arrival while he is still on the premises.”  495 U.S. at 581, emphasis added; see also id. at 588.    California sees residential burglary similarly.  See People v. Davis, 18 Cal.4th 712, 720, 76 Cal.Rptr.2d 770 (1998) [explaining the gravity of residential burglary and its potential for violence]; and see People v. Hines, 210 Cal.App.3d 945, 950-951; 259 Cal.Rptr. 128 (1989) [explaining residential burglary’s potential for violence.]

Ewing and amicus in his support fail to appreciate the violence of burglary, despite numerous other statutory cues.  First, there is no plea-bargaining of “serious felony” charges.  Second, a defendant may not be released without a hearing and a finding of “unusual circumstances.”    Third, a prior conviction of a serious felony constitutes a mandatory, non-strikeable five-year enhancement to a current serious felony conviction.  Fourth, a prior conviction of a serious felony constitutes a “felony strike.”  Finally, a serious felony conviction may preclude probation or a suspended sentence on a new felony conviction, and may make a defendant ineligible for drug treatment for a current nonviolent drug possession offense.

	Length of sentence does not always tell the entire tale: these restrictions on burglary prosecutions reflect the legislative and electoral determination that the crime of residential burglary is one of the most serious crimes against the citizens of this state.  To subordinate the consideration of Ewing’s violent burglaries and robbery to his principal offense in the threshold comparison would be, in effect, to undermine California’s many hard-won protections against burglars, robbers, and recidivists.

2.	The Gravity of Ewing’s Present Grand Theft Offense Should Not Be Downplayed.

Ewing committed felony grand theft.  Grand theft has been part of the Cal. Pen. Code since 1872 and before.  It is an “alternative felony crime” - one that is chargeable and punishable either as a felony or as a misdemeanor.  
	
An alternative felony crime or “wobbler” charged as a felony remains a felony unless a court imposes a misdemeanor sentence. In re Anderson, 69 Cal.2d 613, 664, fn.16, 73 Cal. Rptr. 21, 447 P.2d 117 (1968); People v. Banks, 53 Cal.2d 370, 381-382, 1 Cal. Rptr. 669, 348 P.2d 102 (1959); People v. Bozigian, 270 Cal.App.2d 373, 379, 75 Cal.Rptr. 876 (1969); People v. Washington, 243 Cal.App.2d 681, 687-688, 52 Cal.Rptr. 668 (1966).  

A California sentencing court may reduce a “wobbler” to a misdemeanor even when the defendant has suffered prior “felony strike” convictions.   People v. Superior Court (Alvarez), 14 Cal.4th 968, 979, 60 Cal.Rptr.2d 93, 928 P.2d 1171 (1997).    If the court does not do so, the crime remains a felony.  	

When such a felon has suffered prior convictions within the meaning of California’s “Three Strikes” statutes, they must be proven or admitted.  After the “felony strikes” have been proven or admitted, the trial judge still may dismiss them.  People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996).  When the defendant has been found guilty of multiple current charges, the court may dismiss “felony strikes” as to one crime and may decline to dismiss them as to another current crime.  People v. Garcia, 20 Cal.4th 490, 499-500, 85 Cal.Rptr.2d 280, 976 P.2d 831 (1999).
	
If a court does not dismiss all “felony strikes,” a defendant’s conviction becomes subject to the “Three Strikes” sentencing statutes.  The “Three Strikes” statutes supplant the ordinary sentencing scheme for the underlying felonies.  People v. Dotson, 16 Cal.4th 547, 556, 66 Cal.Rptr.2d 423, 941 P.2d 56 (1997); People v. Superior Court (Romero), supra, at 524.
	
Thus, a defendant who is convicted of a felony theft offense and who has suffered at least two “felony strikes” is not punished simply for felonious theft.  He is punished instead under the Three Strikes sentencing scheme, which mandates harsh punishment only for those with the qualifying prior convictions.  In other words, he is punished for his recidivism.  People v. Lawrence, 24 Cal.4th 219, 226-227  99 Cal.Rptr.2d. 570, (2000).

	Ewing’s present conviction is for felonious conduct, period.  He has long behaved like a felon, has recently stolen property worth a felonious amount, and now he reaps the persistent felon’s reward.   The sentencing court declined to exercise its discretion to dismiss strikes or to reclassify the present crime as a misdemeanor.  That should tell us something.
	
The seriousness of Ewing’s crime is not measured alone by the value of the property he stole—$1,200 in golf clubs.  Shoplifting causes annual losses to merchants estimated in the billions of dollars, forcing retail businesses to hire and maintain large security staffs to combat such pestilence, and to raise prices to compensate.  In 2000, for example, one source indicates that United States retailers lost $32.3 billion to theft, 1.75% of their total sales, up from $29 billion the year before, which was 1.69% of total sales. Richard C. Hollinger, PhD & Jason L. Davis, 2001 National Retail Security Survey, (University of Florida 2001).  Other sources have placed annual shoplifting losses at $7.2 billion.  David A. Anderson, The Aggregate Burden of Crime, 42 J. Law & Econ. 611, 638 (Univ. Chi. 1999).

Moreover, shoplifting is a potentially violent crime because shoplifters who are detected frequently attempt to escape.  Some escape attempts result in violent confrontations when the thieves use force or fear against store personnel or other citizens attempting to apprehend them.  

When a thief in California uses force or fear to escape with merchandise taken in a commercial shoplift, the thief is properly charged with robbery.  See, e.g., People v. Estes, 147 Cal.App.3d 23, 194 Cal.Rptr. 909 (1983).  These robberies are punishable under Cal. Pen. Code §211 in the manner in which all unarmed robberies are punishable.

Confrontations between shoplifters and those trying to stop them can escalate to deadly confrontations.  See, e.g., People v. Weddle, 1 Cal.App.4th 1190, 1198, fn. 9, 2 Cal.Rptr.2d 714 (1991).  

This Court has recognized that a crime presenting a threat of violence is more serious than a clearly nonviolent offense.  Solem v. Helm, supra, 463 U.S. 277, 293-294; [“nonviolent crimes are less serious than crimes marked by violence or the threat of violence.” [emphasis added]].

CONCLUSION

A careful reading of Ewing’s record shows that up through 1993, he was becoming increasingly brazen and more violent with each new crime.  We must not forget about his battery and firearm convictions that preceded the violent robbery and three burglaries.  Only Ewing’s nine years in state prison brought California temporary respite.  The property, lives and limbs of potential victims may well have been preserved during that time.  But only nine months after those nine years parolee Ewing again turned to his same old ways.

Ewing robs, threatens, burglarizes and steals with impunity, showing no remorse for these predations.  He is predictably felonious because of his recidivist nature.  His background is a trail of mud, his character is a patchwork of greed, sloth and obstinacy, and his prospects are an abyss.  That Ewing has yet to shed blood moves no reasonable person to sympathy—bloodshed by him is surely a matter of time.  

In short, Gary Albert Ewing is a bad man with a bad record.  He now seeks to conceal that record to avoid his just sentence.  We think success for him depends almost entirely upon the weight given his recidivist record in the threshold comparison.  Only if the Court focuses on Ewing’s present felony as Solem prescribed, will he have a chance to join Helm in dodging a life sentence.  But we have shown that Harmelin has changed things.  A good many, if not most, jurisdictions avoid rushing headlong into comparative intra- and interjurisdictional analysis.  They first look for an inference of gross disproportionality of crime to sentence.  And contrary to Solem, these many courts do not overemphasize the principal felony in recidivist cases.  They focus on the recidivist’s record, sometimes primarily.

Put another way, since an effective criminal justice system must gauge an offender’s guilt, cognizance must be taken of his criminal record.  The law and common sense agree that the violent burglar who shoplifts is far more guilty for shoplifting than the hungry college student who is low on groceries. 

When Ewing’s record is given its proper place in the threshold comparison, there can be no inference of gross disproportionality.  His record is worse than Rummel’s in length, number of convictions, and gravity.  It is worse than Helm’s in the same three ways.  And it is worse than Harmelin’s even in gravity because of Ewing’s six-inch knife.

Because icebergs run deep, only the foolish focus on their peaks.  It is far wiser to worry about the great icy mass under the surface because that is where the danger lies. Surely the Eighth Amendment allows such consideration.

Respectfully submitted,

DENNIS L. STOUT,
District Attorney,
County of San Bernardino,
State of California,
MARK A. VOS,
Deputy District Attorney

GROVER D. MERRITT,*
Lead Deputy District Attorney,
*Counsel of Record for Amicus Curiae CDAA
Appellate Services Unit,
412 West Hospitality Lane, 1st Floor,
San Bernardino, California 92415-0042

GARY T. YANCEY,
District Attorney,
Contra Costa County,
State of California
L. DOUGLAS PIPES,
Senior Deputy District Attorney,
Post Office Box 670,
Martinez, California 94553