Appellate Court Case No. A118979
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
THE PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff/Respondent,
v.
ALI FOROUTAN,
Defendant/Appellant
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Supreme Court No.______
Marin County Superior Court No. SC 114626 A
The Honorable John S. Graham
PETITION FOR REVIEW AFTER DECISION BY THE
COURT OF APPEAL, FIRST DISTRICT
MICHAEL S. ROMANO, Esq., No. 232182
MICHAEL CORREL (Law Student)
NICHOLAS XENAKIS (Law Student)
MILLS CRIMINAL DEFENSE CLINIC
STANFORD LAW SCHOOL
559 Nathan Abbott Way
Stanford, CA 94305
Phone: (650) 736-8670
mromano@stanford.edu
Attorney For Petitioner
Ali Foroutan
TABLE OF CONTENTS
TABLE OF AUTHORITIES........................................................................iii
PETITION FOR REVIEW............................................................................1
QUESTIONS FOR REVIEW .......................................................................2
REASONS FOR REVIEW ...........................................................................3
I.
This Court Has Never Adequately Defined the Bounds of Discretion
in Three Strikes Sentencing................................................................3
II. This Court Has Never Evaluated the Three Strikes Law Under the
State and Federal Bans on Cruel and Unusual Punishment ...............4
STATEMENT OF THE CASE .....................................................................6
STATEMENT OF THE FACTS...................................................................6
ARGUMENT ................................................................................................8
I.
THIS COURT SHOULD DEFINE THE “SPIRIT” OF THREE
STRIKES LAW TO MAKE THE WILLIAMS-ROMERO
ANALYSIS CONSISTENT THROUGHOUT CALIFORNIA.........8
A. The Lack of a Unified Definition of the “Spirit” of the Three
Strikes Law has Produced Multiple District Splits and Wildly
Divergent Sentences ........................................................................8
B. Ballot Materials As Well As The Statements of District Attorneys
Throughout California Declare That Three Strikes Should Only Be
Reserved For the “Worst Of The Worst.” .....................................10
C. The Trial Court Below Abused Its Discretion Because Petitioner
Falls at Least Partially Outside the “Spirit” of the Three Strikes
Law Under Every Existing Definition...........................................11
II. PETITIONER’S SENTENCE IS CRUEL AND UNUSUAL AND
REQUIRES REVERSAL UNDER BOTH THE STATE AND
FEDERAL CONSTITUTION..........................................................13
i
A. This Court Has Never Analyzed The Three Strikes Law Under
The Eighth Amendment of the United States Constitution..........14
B. This Court Has Never Analyzed The Three Strikes Law Under
The California State Constitution Ban on Cruel and Unusual
Punishment. ..................................................................................16
III. PUNISHING PETITIONER AGAIN FOR HIS BURGLARY
PRIOR CONVICTIONS VIOLATES THE DUE PROCESS
REQUIREMENTS SET FORTH IN THE FOURTEENTH AND
FIFTH AMENDMENTS OF THE FEDERAL CONSTITUTION. 18
CONCLUSION ...........................................................................................18
ii
TABLE OF AUTHORITIES
STATE CASES
In re Varnell (2002) 115 Cal.Rptr.2d 464 .....................................................3
People v. Alvarez (1997) 14 Cal.4th 968...............................................3, 8, 9
People v. Carmony (2005) 127 Cal. App. 4th 1066 ..........................5, 13, 16
People v. Gaston (1999) 74 Cal.App.4th 310 ...............................................3
People v. McGlothin (1998) 67 Cal.App.4th 468..........................................3
People v. Romero (2002) 99 Cal.App.4th 1418 ......................................5, 16
People v. Strong (2001) 87 Cal.App.4th 328 ................................................3
People v. Taylor (2000) 95 Cal.Rptr.2d 357 .................................................3
People v. Zichwic (2001) 94 Cal.App.4th 944 ..............................................3
Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755...........................4, 5, 13, 14
STATUTES
Health & Safety Code § 11377(a) .................................................................6
Pen. Code § 1385.........................................................................................11
Pen. Code § 290(g)(2) .................................................................................12
FEDERAL CASES
Banyard v. Duncan (C.D.Cal 2004) 42 F. Supp. 2d 865 .....................passim
Ewing v. California (2003) 538 U.S. 11..................................................4, 14
Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875 .......................4, 5, 13, 14
Harmelin v. Michigan (1991) 501 U.S. 957..........................................20, 21
In re Lynch, 8 Cal.3d 410 (1972) ................................................................16
People v. Williams (1998) 17 Cal.4th 148...............................................3, 11
Riggs v. California (1999) 525 U.S. 1114.....................................................4
Solem v. Helm (1983) 463 U.S. 277 ..................................................5, 14, 15
OTHER AUTHORITIES
Ballot Pamp., Gen. Elec. (Nov. 8, 1994), Argument in Favor of Prop. 18411
Cal. District Attorneys Association, Prosecutors’ Perspective on
California’s Three Strikes Law: A 10-Year Retrospective (2004),
“Individual Perspectives” ........................................................................11
Note, A Swing and a Miss: California’s Three Strikes Law (1996) 17
Whittier L.Rev. 651 ...................................................................................9
Paulson, Solano County District Attorney, From the Editor’s Desk (2007) 1
J. INST. FOR ADVANCEMENT CRIM. JUST. 4.......................................10, 11
iii
Scully, IACJ President’s Message (2007) 1 J. INST. FOR ADVANCEMENT
CRIM. JUST. 2 ...........................................................................................11
Vitiello, Reforming Three Strikes’ Excesses (2004) 82 Wash. L.Q. 1..........9
Zimring et al., Punishment and Democracy/Three Strikes and You’re Out in
California (2001)........................................................................................9
iv
PETITION FOR REVIEW
TO THE HONORABLE CHIEF JUSTICE OF THE CALIFORNIA
SUPREME COURT, AND THE ASSOCIATE JUSTICES OF THE
SUPREME COURT OF CALIFORNIA:
ALI FOROUTAN respectfully petitions for review following the
decision of the Court of Appeal, First Appellate District, (per Hon. Timothy
A. Reardon, Acting P.J.), filed on February 4, 2009. A118978. (Ex. A.)
1
QUESTIONS FOR REVIEW
Petitioner’s life sentence for 0.03 grams of methamphetamine
represents the harshest sentence ever handed down under California’s Three
Strikes law. The fact that petitioner represents the most extreme Three
Strikes sentence in the California history was not disputed by the
government or the Court of Appeal below. According to Petitioner’s
research, every other case involving a Three Strikes sentence involved a
defendant with a more severe criminal history or more severe instant
offense. Given these facts:
1.
Was it an abuse of discretion to sentence Petitioner to life in
prison under the Three Strikes law for simple possession of 0.03
grams of methamphetamine?
2.
Does a life sentence for possession of 0.03 grams of
methamphetamine violate the State or Federal constitutional
bans on cruel and unusual punishment?
3.
Did the trial court violate the Due Process Clause when it placed
primary emphasis on prior convictions when imposing
Petitioner’s sentence?
2
REASONS FOR REVIEW
I.
This Court Has Never Adequately Defined the Bounds of
Discretion in Three Strikes Sentencing.
In People v. Williams (1998) 17 Cal.4th 148, 161, this Court held
that a life sentence under the so-called “Three Strikes law” should only be
imposed when a defendant falls within “the spirit” of the recidivistsentencing scheme. 1 Since Williams, this Court has never defined that
“spirit” or the bounds of discretion under the Three Strikes law.
The lack of guidance from this Court has lead to a “wide divergence
in charging and sentencing practices under the Three Strikes law.” (Ex. A at
16.) 2
For example, in People v. Alvarez (1997) 14 Cal.4th 968, a
defendant with prior burglary convictions and facing a Three Strikes
sentence for simple possession of methamphetamine was instead sentenced
1 A court reviewing a Three Strikes sentence “must consider whether, in
light of the nature and circumstances of [the defendant’s] present felonies
and prior serious and/or violent convictions, and . . . his background,
character and prospects, the defendant may be deemed outside the scheme’s
spirit.” Williams, 17 Cal.4th at 161.
2 See also In re Varnell (2002) 115 Cal.Rptr.2d 464, 476 (holding that
uncertainty as to the meaning of the “spirit” of the Three Strikes law has
created an “amorphous” standard amongst the various California appellate
districts); People v. Zichwic (2001) 94 Cal.App.4th 944, 960; People v.
Strong (2001) 87 Cal.App.4th 328, 332; People v. Taylor (2000) 95
Cal.Rptr.2d 357, 366-67; People v. Gaston (1999) 74 Cal.App.4th 310,
321; People v. McGlothin (1998) 67 Cal.App.4th 468, 476.
3
to a misdemeanor term in county jail. Petitioner’s instant offense and
criminal history is indistinguishable from the defendant in Alvarez, yet he is
serving a life sentence. Furthermore, if Petitioner had been convicted in
Los Angeles, he would not have been charged under the Three Strikes Law
at all. 3 The disparity in sentencing options in these Three Strikes cases has
made appellate review meaningless. In her concurrence to the lower court
opinion, Justice Rivera explored this issue extensively. (Ex. A.)
Resolving this issue will both secure uniformity of decision
throughout California and settle an important issue of state law pursuant to
Rule 8.500(b)(1).
II.
This Court Has Never Evaluated the Three Strikes Law Under
the State and Federal Bans on Cruel and Unusual Punishment.
This Court has never addressed the cruel and unusual punishment
issues presented by the Three Strikes law. (See Riggs v. California (1999)
525 U.S. 1114, 1115.) Instead, only federal courts have addressed the
relationship between the Three Strikes law and the prohibition on cruel and
unusual punishment. (See, e.g., Ewing v. California (2003) 538 U.S. 11;
Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875; Ramirez v. Castro (9th
Cir. 2004) 365 F.3d 755; Banyard v. Duncan (C.D.Cal 2004) 42 F. Supp.
2d 865; Duran v. Castro (E.D.Cal. 2002) 227 F. Supp. 2d 1121.)
3 See Three Strikes Policy, Dec. 19, 2000, available at
http://da.co.la.ca.us/3strikes.htm (describing that it is the policy of the Los
Angeles County District Attorney’s Office to only charge a defendant under
Three Strikes when the third strike is a serious or violent felony).
4
Significantly, each federal court to reverse a Three Strikes sentence under
as cruel and unusual punishment has done so in a case where the defendant
committed a more serious instant offense or had a more serious criminal
history than Petitioner. (See Gonzalez, supra, 551 F.3d 875 (prior sex
offense convictions); Ramirez, supra, 365 F.3d 755 (prior robberies);
Banyard, supra, 42 F. Supp. 2d 865 (assault); Duran, 227 F. Supp. 2d 1121
(kidnapping).)
The lack of state authority has produced conflicting results in
California’s various appellate districts. Most notably, the California Courts
of Appeals have developed divergent views on how to evaluate Three
Strikes sentences against claims of cruel and unusual punishment under the
state and federal constitutions. For instance, in People v. Carmony (2005)
127 Cal. App. 4th 1066, the court struck down a three strikes sentence as
cruel and unusual punishment applying a legal framework articulated by the
United States Supreme Court in Solem v. Helm (1983) 463 U.S. 277, 292.
While in People v. Romero (2002) 99 Cal.App.4th 1418, another court
upheld a Three Strikes sentence for a similarly situated defendant, rejecting
the framework applied in Carmony.
The Court of Appeal in Petitioner’s case applied yet another
standard, holding that no constitutional analysis is required as long as a
sentence conforms to the statutory language. (Ex. A at 9.)
5
Resolving this issue will both secure uniformity of decision
throughout California and settle an important issue of state law pursuant to
Rule 8.500(b)(1).
STATEMENT OF THE CASE
On April 30, 2002 Petitioner was convicted of possession of 0.03
grams of methamphetamine in violation of Health and Safety Code section
11377(a). 4 On January 26, 2005 the trial court denied Petitioner’s motion
to strike two prior strikes and sentenced him to a term of 25 years to life
pursuant to the Three Strikes law. (CT 171-74.) On February 4, 2009,
California Court of Appeal, First Appellate District, Division Four, in case
number A118978 affirmed the trial court’s decision. The Court of Appeal
decision became final on March 6, 2009.
STATEMENT OF THE FACTS
The Hon. Maria P. Rivera provided the following summary of the
case in her concurrence to the lower court opinion:
[Petitioner’s] three burglaries committed in 1989—
comprising the first strike—were unquestionably serious
crimes, not merely because the law holds them to be serious
but because they involved extensive ransacking of the burgled
homes and the theft of many thousands of dollars worth of
items, including a “ ‘family heritage’ ” gun collection.
Nevertheless, the 1990 presentence report concluded that the
4 In his original trial, Petitioner was also convicted of using an access card
without consent of the cardholder. That conviction was reversed by the
California Court of Appeal, First District, Division Four in People v.
Foroutan (Jan. 26, 2005, A101159) 2005 Cal. App. Unpub. LEXIS 643.
The charge was subsequently dismissed. (Ex. A at 2.)
6
burglaries were not so serious as to justify the upper term;
sentencing was recommended at the midterm because the
“[c]ircumstances in mitigation and aggravation are relatively
balanced.” The court sentenced defendant to six years eight
months in prison, but execution of the sentence was
suspended on condition of one year of county jail time, five
years probation, residential drug treatment and restitution.
So, despite the seriousness of these crimes, the court did not
consider defendant to be particularly dangerous or to require
lengthy incarceration.
The second strike was a 1992 burglary Foroutan committed
while on probation. In contrast to the previous crimes, it was
a minor offense. It involved the breaking or forcing of a
window in an attempt to enter the home of an individual who,
it was argued, was an acquaintance. Defendant and his
accomplice were “chased away” by the homeowner.
Foroutan did not complete the break-in, steal any items, or
threaten the occupant. After pleading guilty, Foroutan served
approximately five years in prison.
The third strike sentencing offense, of which Foroutan was
convicted, was possession of 3/100ths of a gram of
methamphetamine. At the same time, he was charged with,
but acquitted of, burglary. He was also convicted of a related
credit card offense, but that charge was dismissed by the
district attorney in the “furtherance of justice” after reversal
of the conviction for instructional error.
Foroutan consistently stated that his crimes were fueled by his
drug habit. He began abusing alcohol and drugs at an early
age. As a child, Foroutan was subjected to abusive treatment
by his father and harassment by his classmates. Foroutan’s
father also abused alcohol and drugs.
At sentencing Foroutan was supported not only by family
members, but also by one of his former victims who actively
opposed imposition of a sentence of 25 years to life. An
alcohol/drug assessment conducted by Foroutan’s counselor
while he was incarcerated, stated that Foroutan’s “motivation
is in the right place to make some remarkable changes in his
life.” The report concluded that Foroutan was amenable to
treatment, but only in a “long term highly structured
7
Residential Treatment Program such as Delancey Street.”
Foroutan had applied to and was accepted by Delancey Street
and “seems highly motivated to enter and complete” the
program. “Prognosis is favorable due to client’s motivation.”
Foroutan was 38 years old at the time of his sentencing in
July 2007.
No one contends that Foroutan has ever engaged in violent
criminal behavior, or in violence of any kind.
Had the trial court granted Foroutan’s motion to strike one of
the strikes, his maximum sentence would have been six years
in prison. (Health & Saf., Code, § 11377, subd. (a); Pen.
Code, §§ 18, 1170.12, subd. (c)(1).)
ARGUMENT
I.
THIS COURT SHOULD DEFINE THE “SPIRIT” OF THREE
STRIKES LAW TO MAKE THE WILLIAMS-ROMERO
ANALYSIS CONSISTENT THROUGHOUT CALIFORNIA.
A.
The Lack of a Unified Definition of the “Spirit” of the
Three Strikes Law has Produced Multiple District Splits
and Wildly Divergent Sentences.
Petitioner’s life sentence is an example of “[t]he wide divergence in
charging and sentencing practices under the Three Strikes law.” (Ex. A at
16.) Justice Rivera’s concurrence highlights the split amongst California’s
Appellate Circuits—a split that is “likely to undermine public trust in the
Three Strikes law and our criminal justice system.” (Id.)
In a stark contrast to Petitioner’s position, in People v. Alvarez
(1997) 14 Cal.4th 968, this Court affirmed a trial court’s determination that
a life sentence under the Three Strikes law was not appropriate for a
8
defendant convicted of possessing 0.41 grams of methamphetamine with
four prior residential burglary convictions. (Alvarez, supra, 14 Cal. 4th at
pp. 973, 981.) The facts in Alvarez are remarkably similar to Petitioner’s
situation. In Alvarez, however, the defendant not only avoided a life term
but was sentenced to a misdemeanor and served one year in county jail. (Id.
at pp. 973-74.)
As Justice Rivera noted in her concurrence to the lower court
opinion the increasing inconsistency in Three Strikes sentencing “has been
documented in a number of articles and at least one book.” (Ex. A at 13.) 5
Justice Rivera concluded:
5 See, e.g., Zimring et al., Punishment and Democracy/Three Strikes and
You’re Out in California (2001), p. 119 (Zimring), there is an “extreme
difference in punishment between third-strike felons who are sentenced
under the terms of the law and the great majority of those eligible for thirdstrike sanctions who are not so prosecuted”; Note, A Swing and a Miss:
California’s Three Strikes Law (1996) 17 Whittier L.Rev. 651, 687-688
[“The disparate application of the Law has the potential to lead to unjust
results. If two defendants are convicted of the same crime in different
counties, one may receive probation, while the other may receive a sentence
of twenty-five years to life. This inconsistency is a result of a flawed
version of the statute being enacted, therefore prohibiting the consistent
application of the Law from county to county . . . .”]; Vitiello, Reforming
Three Strikes’ Excesses (2004) 82 Wash. L.Q. 1, 21-22 [“Trial Courts and
prosecutors are exercising their discretion in widely different ways around
the state. That has led to county-by-county variations, which has resulted
in ‘uneven justice,’ and undercut the law, which aimed for uniform
treatment of defendants. Disparity derives from widely different attitudes
towards the law in different counties across the state. Even if some
discretionary regional differences are inevitable, in some parts of the state
prosecutors are still using Three Strikes in questionable cases, ones in
which punishment is likely to be excessive—that is, the amount of
anticipated social protection does not justify the long terms of
9
The problem lies in the disparate treatment of
the difficult case, such as the one before us.
When a petty offense lands one defendant, with
two property-crime strikes but no history of
violence, in prison for 25 years to life, but
another defendant with similar circumstances
and a virtually identical criminal record is
sentenced to a few years in prison or put on
probation, we can expect a consequent cynicism
and distrust toward the law and our criminal
justice system.
(Ex. A at 19.) This disparate treatment is a sign that Petitioner’s sentence is
arbitrary and should be reversed.
B.
Ballot Materials As Well As The Statements of District
Attorneys Throughout California Declare That Three
Strikes Should Only Be Reserved For the “Worst Of The
Worst.”
Neither this Court nor any other court has ever defined the “spirit” of
the Three Strikes law. In the absence of such decisions, courts should look
to the ballot materials supporting passage of the law and publications by
district attorneys throughout the state, who insist that harsh third strike
punishment is reserved for the “worst of the worst.” (Paulson, Solano
County District Attorney, From the Editor’s Desk (2007) 1 J. INST. FOR
ADVANCEMENT CRIM. JUST. 4.) The ballot argument in favor of
Proposition 184, which enacted the Three Strikes law in 1994, stated that
the sentencing scheme was intended to keep “career criminals, who rape
imprisonment imposed on some of the defendants currently incarcerated
under the law.”].
10
women, molest innocent children and commit murder, behind bars where
they belong.” (Ballot Pamp., Gen. Elec. (Nov. 8, 1994), Argument in Favor
of Prop. 184, p. 36.)
District attorneys have taken a similar position. Solano County
District Attorney David W. Paulson described the law as reserved for the
“worst of the worst” offenders. (Paulson, supra, 1 J. INST. FOR
ADVANCEMENT CRIM. JUST. 4.) Sacramento County District Attorney Jan
Scully has described the law as “clos[ing] the revolving door on the most
serious and violent repeat offenders.” (Scully, IACJ President’s Message
(2007) 1 J. INST. FOR ADVANCEMENT CRIM. JUST. 2.) And Santa Clara
County District Attorney George Kennedy described the law as allowing
prosecutors to “remove demonstrably violent and dangerous repeat felons
from among us . . . .” (Cal. District Attorneys Association, Prosecutors’
Perspective on California’s Three Strikes Law: A 10-Year Retrospective
(2004), “Individual Perspectives,” p. v.)
C.
The Trial Court Below Abused Its Discretion Because
Petitioner Falls at Least Partially Outside the “Spirit” of
the Three Strikes Law Under Every Existing Definition.
Here, the trial court abused its discretion when it sentenced
Petitioner to a life sentence. A trial court must dismiss prior strike
convictions while sentencing under Three Strikes when a defendant’s
individual circumstances place him “outside the scheme’s spirit, in whole
or in part.” (Williams, supra, 17 Cal.4th at p. 161 [citing Pen. Code § 1385;
11
People v. Superior Court (Romero) (1996) 13 Cal.4th 497].) Nothing
before the trial court below suggested Petitioner was the kind of violent,
predatory, and dangerous criminal the Three Strikes law was designed to
permanently incapacitate. Instead, Petitioner’s abandonment of his prior
criminal activities, acknowledged intelligence and human potential, and
genuine prospects for long-term recovery through the support of friends,
family, and the Delancy Street Residential Educational Center intensive
drug treatment program demonstrate Petitioner’s exclusion from the spirit
of the law. (CT 56-58, 166.) By ignoring these facts and instead relying
entirely on Petitioner’s previous burglary convictions to justify its
imposition of a life sentence, the sentencing court abused its discretion and
the Court of Appeal erred in failing to reverse. (CT 41-43.)
Indeed, Petitioner’s commitment offense is even less serious than the
defendant who received relief in People v. Cluff (2001) 87 Cal.App.4th
991. In Cluff, the Court of Appeal held that a life sentence appeared
“disproportionate by any measure” given the relatively minor nature of the
defendant’s commitment offenses of failing to register as a sex offender.
(Cluff, supra, 87 Cal.App.4th at p. 1004.) In contrast to Petitioner’s
offense, Cluff’s failure to register as a sex offender was a mandatory
felony, carrying a minimum prison term of 16 months and maximum of
three years (absent enhancements). (Cluff, supra, 87 Cal.App.4th at p. 994;
Pen. Code § 290(g)(2) [circa 1997]; see also Carmony, supra, 127
12
Cal.App.4th at p. 1066 (“[reversing a Three Strikes sentence where
defendant failed to register as a sex offender after conviction for oral
copulation by force or fear, or with a minor under age 14 and two
subsequent convictions for assault with a deadly weapon”]; Ramirez, supra,
365 F.3d 755, 767-68 [reversing despite prior robbery strike involving use
of a knife]; Banyard, supra, 342 F.Supp.2d 865, 873-74 [reversing despite
prior convictions for robbery and assault with a deadly weapon.]) Based on
this precedent, the sentencing court abused its discretion and the Court of
Appeal erred in failing to reverse.
II.
PETITIONER’S SENTENCE IS CRUEL AND UNUSUAL AND
REQUIRES REVERSAL UNDER BOTH THE STATE AND
FEDERAL CONSTITUTION.
As discussed above, this Court has never addressed the relationship
the Three Strikes law and the state and federal bans on cruel and unusual
punishment. Instead, this critical area of criminal jurisprudence has been
left exclusively to the federal courts and one California Court of Appeal.
Federal courts have invalidated sentences on Eighth Amendment grounds
in Gonzalez, 551 F.3d 875, Ramirez, 365 F.3d 755, Banyard, 342 F. Supp.
2d 865, and Duran, 227 F. Supp. 2d 1121. A California Court of Appeal
took similar action reversing a sentence on state and federal constitutional
grounds in Carmony, supra, 127 Cal.App.4th 1066. Each of these cases
involved a defendant with at more serious or violent instant offense or
criminal history than Petitioner. The California Supreme should take this
13
opportunity to address the grounds on which a Three Strikes sentence
violates the Eighth Amendment of the United States Constitution in light of
these major developments.
A.
This Court Has Never Analyzed The Three Strikes Law
Under The Eighth Amendment of the United States
Constitution.
The Court of Appeal asserted below that a Three Strikes sentence “will
pass Eighth Amendment muster as long as it was correctly imposed
pursuant to our state’s Penal Code.” (Ex. A at 9.) The error in the Court of
Appeal’s logic is plain. The court below claims that any Three Strikes
sentence “correctly imposed pursuant to [California’s] Penal Code” cannot
violate the federal constitution. (Ex. A at 9.) If this were true, however,
there would be no cases finding that a “correctly imposed” sentence
violated the federal constitution.
The United States Supreme Court and the Ninth Circuit have
provided significant guidance in this area. Contrary to the Court of
Appeals decision in this case, all of the Supreme Court and Ninth Circuit
decisions directly addressing Three Strikes sentences have relied upon the
three-factor analysis set forth in Solem v. Helm (1983) 463 U.S. 277. (See
Ewing, supra, 538 U.S. 11; Gonzalez, supra, 551 F.3d 875; Ramirez, supra,
365 F.3d at p. 767-74; Banyard, supra, 342 F. Supp. 2d at p. 873-883;
Duran, supra, 227 F. Supp. 2d at p. 1126-27.) These cases took as
14
mandatory 6 that a court must consider three “objective criteria” in
determining whether a sentence is unconstitutionally disproportionate: (1)
the gravity of the offense compared with the harshness of the penalty; (2)
sentences imposed on other criminals in the same jurisdiction; and (3)
sentences imposed for commission of the same crime in other jurisdictions.
(Solem, supra, 463 U.S. at p. 292). In this case, all three criteria
demonstrate that Petitioner’s sentence violates the Eighth Amendment:
Petitioner’s offense is extremely minor; he is being punished more severely
than rapists and murderers in California; and no other state would subject
Petitioner to a life sentence for his crime.
The Court of Appeal erred in failing to apply any meaningful
analysis to Petitioner’s Eighth Amendment claim. Evaluated under the
proper rubric, Petitioner’s sentence represents a “cruel and unusual”
sentence in light of the federal test and the existing caselaw.
6 The Court of Appeal below contends that the federally mandated analysis
became unnecessary after the Harmelin decision. (People v. Foroutan (Feb.
4, 2009, A118978), 2009 Cal. App. Unpub. LEXIS 976, *14n.6.)
Importantly, all three Ninth Circuit courts construed the federal test set
forth in Solem v. Helm (1983) 463 U.S. 277, as a mandatory analysis
notwithstanding the fact that all four decisions issued after Harmelin. (See,
e.g.., Duran, supra, 227 F. Supp. 2d at p. 1127 [holding that courts “must
review penalties for gross disproportionality” and such a review is “guided
by [the] objective factors” set out in Solem].)
15
B.
This Court Has Never Analyzed The Three Strikes Law
Under The California State Constitution Ban on Cruel
and Unusual Punishment.
This Court has never specifically considered the implications of the
state ban on cruel or unusual punishment as it relates to Three Strikes
sentences. In fact, the most recent non-capital sentencing guidance relevant
to Three Strikes sentencing appears to be this Court’s decision in In re
Lynch, 8 Cal.3d 410 (1972). In Lynch, this Court held that cruel or unusual
punishment claims under the California Constitution should be evaluated
according to (1) the seriousness of the instant offense; (2) the severity of
the instant sentence compared to sentences for similarly severe crimes in
the same jurisdiction; and (3) the severity of the sentence compared to what
the sentence would be in other jurisdictions. Yet even this guidance has
proved increasingly troublesome. Various California Courts of Appeal
have reached conflicting conclusions on how to apply Lynch’s framework
for assessing state cruel or unusual punishment claims. (Compare
Carmony, supra, 127 Cal. App. 4th 1066 [reversing a Three Strikes
sentence after comparing it the sentences for murder and rape in
California]; with Romero, supra, 99 Cal.App.4th 1418 [upholding a Three
Strikes sentence after refusing to compare it to the sentences for murder and
rape in California].)
This conflict and lack of controlling guidance has taken a
particularly heavy toll in the context of Three Strikes sentencing. For
16
example, the court below erroneously held that that possession of any
amount of drugs—no matter how minute—constitutes a sufficient threat to
society to support a life sentence under the California constitution. To
reach this conclusion, the court below relied upon Harmelin v. Michigan
(1991) 501 U.S. 957. In Harmelin, the United States Supreme Court
justified a life sentence for possession of illegal narcotics based on the
deleterious social effects of drug use in the United States. (Harmelin,
supra, 501 U.S. at p. 1002-1003) But in Harmelin, the Supreme Court
directed its opinion at a defendant convicted for possessing 672 grams of
cocaine—or 65,000 usable doses, according to the Court. (Id. at p. 1002.)
Conversely, several federal courts have recognized that simple
possession is not sufficiently serious to warrant a life sentence. (See
Duran, 227 F. Supp. 2d at 1129 n.12 [simple possession of narcotics for
personal use does not pose the “serious risk to society” discussed in
Harmelin].) In short, California Courts of Appeal have no consistent
standard for assessing seriousness—resulting in widely varying sentences
for identical crimes throughout the various appellate districts discussed by
Justice Rivera below. Addressing the application of the state ban on cruel
or unusual punishment to Three Strikes sentences would help bring
consistency to the sentencing process and clarify the proper method for
assessing claims under the state ban on cruel or unusual punishment.
17
III.
PUNISHING PETITIONER AGAIN FOR HIS BURGLARY
PRIOR CONVICTIONS VIOLATES THE DUE PROCESS
REQUIREMENTS SET FORTH IN THE FOURTEENTH AND
FIFTH AMENDMENTS OF THE FEDERAL
CONSTITUTION.
A plain reading of the sentencing transcript reveals that the Superior
Court imposed a life sentence in this case because of Petitioner’s prior
burglary convictions rather than his instant offense. (RT 15-17.) Of
course, Petitioner has already been punished for these crimes. Punishing
Petitioner for these offenses again violated the Due Process Clause of the
Fourteenth Amendment of the United States Constitution and the Fifth
Amendment of the United States Constitution. (See Banyard, supra, 342
F.Supp.2d at pp. 873-74 [“[t]o use a minor triggering offense simply to
increase the punishment for prior offenses retroactively would violate
fundamental principles of due process and double jeopardy.”].)
CONCLUSION
Petitioner respectfully requests that this Court exercise its discretion
and grant review of these important legal issues.
_______________________________
Michael S. Romano
Attorney for Petitioner
Ali Foroutan
18
WORD COUNT CERTIFICATION
The text of this brief consists of 4,199 words as counted by the
Microsoft Office Word 2004 word processing program used to generate the
brief.
Date: March 15, 2009
____________________________
Michael S. Romano
Attorney for Petitioner
Ali Foroutan
19
PROOF OF SERVICE BY MAIL
1013(a), 2015.5 C.C.P.
Re:
People v. Ali Foroutan, Supreme Court No. ____________
I am a citizen of the United States; my business address is 559
Nathan Abbott Way, Stanford, California 94305. I am employed in the
County of Santa Clara, California, where this mailing occurs; I am over the
age of eighteen uears and not a party to the within cause. I served the
within:
Petition for Review
On the following person(s) on the date set forth below, by placing a true
copy thereof enclosed in a sealed envelope with postage thereon fully
prepaid, in the United States Post Office mail box at Stanford, California,
addressed as follows:
Edmund Brown
Office of the Attorney General
1300 “I” Stret
P.O. Box 944255
Sacramento, CA 94244-2250
Marin County Superior Court
Hon. John S. Graham
Kim Turner, Court Executive
Officer
3501 Civic Center Dr., Room #116
San Rafael, CA 94903
Court of Appeal, First District
Division Four
Clerk of Court
350 McAllister Street
San Francisco, California 94102
Edward S. Berberian, Jr.
District Attorney
3501 Civic Center Drive, Room
130
San Rafael, CA 94903
Ali Foroutan, T-75027
C1-108
P.O. Box 921
Centinela State Prison
Imperial, CA 92251
Executed on March 15, 2009, at Stanford, California.
____________________________
Michael S. Romano
20