Metropolitan News-Enterprise


Tuesday, April 20, 2004


Page 1


Ninth Circuit: Three-Strikes Sentence Cruel, Unusual


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday overturned a 25-year-to-life sentence for shoplifting, saying the sentence was so harsh under the facts of the specific case it constituted cruel and unusual punishment even under the Supreme Court rulings upholding similar sentences last year.

Unlike the defendants in last year’s Ewing v. California 538 U.S. 11, and its companion case of Lockyer v. Andrade, Isaac Ramirez did not have a history of violent or serious criminality, Judge Kim M. Wardlaw explained for the panel.

Ramirez’s third “strike” was stealing a $199 VCR, the judge explained, which would have been a misdemeanor if not for two prior convictions for unarmed robbery. Both of the priors, which were used both to elevate the new offense to a felony and to bring it under the Three-Strikes law, involved shoplifting incidents in which the use of minimal force in order to get away from the store elevated the crime from theft to robbery, Wardlaw noted, and the defendant had no other felony convictions.

Ramirez had never gone to prison, she added, since he pled guilty to both priors in a single agreement and served probation, which he completed successfully.

Wardlaw also cited Los Angeles District Attorney Steve Cooley’s policy against seeking Three-Strikes sentences in most cases where the third strike is neither a serious nor violent felony and is not a major drug crime.

The policy, the judge wrote, “makes clear that Ramirez probably would not have faced a Three Strikes sentence at all if he had committed his petty VCR theft just a couple of years later, and on the other side of the San Bernardino/Los Angeles county line....”

She said the life sentence was unjust and more severe than a sentence for “murder, manslaughter or rape.” U.S. District Judge J. Spencer Letts of the Central District of California was correct in ruling that the sentence was excessive, that the California Court of Appeal ruling to the contrary was an unreasonable application of controlling federal law, and that the defendant is entitled to a writ of habeas corpus, the appellate court concluded.

The attorney who represented Ewing and Andrade in the Supreme Court, University of Southern California professor Erwin Chemerinsky, said Wardlaw was correct.

“I think the significance of this case, that even after Andrade and Ewing, there is still a door open in challenges for extreme cases,” Chemerinsky said. “I think what the Ninth Circuit is saying is the Supreme Court meant it when it said there could be such a rare case.”

A spokesman for California Attorney General Bill Lockyer, who urged the court to uphold the term, said the office was reviewing the lengthy decision and not prepared to comment.

Ramirez’s two priors came from Orange County, where he pleaded guilty to unarmed robbery of a Kmart and Lucky’s grocery store in 1991.

He served six months of a one-year term before his 1996 arrest. In one robbery, the getaway car he was in ran over a security guard’s foot and, in the other, Ramirez pushed a guard as he fled.

After serving more than five years for the VCR offense, Letts released him. Ramirez, who argued his case before the appeals panel, could not be reached for comment.

In dissent, Judge Andrew Kleinfeld agreed the sentence was excessive but said federal courts “have extremely limited authority over the harshness of state sentences.”

The case is Ramirez v. Castro, 02-56066.


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