Thursday, August 5, 2010
Life Term for Failure to Update Sex Offender Listing Upheld
By KENNETH OFGANG, Staff Writer
A 25-year-to-life sentence for a third-strike offender convicted of failing to update his sex offender registration within five days of his birthday does not necessarily violate the Eighth Amendment ban on cruel and unusual punishment, the Court of Appeal for this district ruled yesterday.
Los Angeles Superior Court Judge Sanjay T. Kumar, sitting on assignment in Div. Five, said the Third District Court of Appeal’s contrary ruling in People v. Carmony (2005) 127 Cal.App.4th 1066 was wrong.
A potential life sentence may be appropriate, Kumar said, when the defendant’s history, and particularly the crimes resulting in the registration requirement, show him to be a danger to society.
The case of Willie Clifford Coley, whose habeas corpus petition was denied by the panel, is one in which the penalty was fitting, Kumar said.
Coley was arrested as part of a “parolee at large sweep” and charged with failing to update registration under Penal Code Sec. 290. Because his prior sex offense, rape in concert, was a felony, the registration offense was a felony.
Prior conviction allegations of voluntary manslaughter and robbery were found true, triggering the Three-Strikes Law. His Eighth Amendment challenge to his sentence for violating the registration requirement, and other challenges, were rejected by the Court of Appeal in 2003.
Following Carmony, however, he petitioned the state Supreme Court for a writ of habeas corpus overturning his sentence on the same ground. The high court ordered the Court of Appeal to rule on the merits.
Kumar explained in a footnote that while an issue resolved on direct appeal normally cannot be relitigated in a habeas corpus proceeding, the California Supreme Court has recognized an exception where the law has changed, an exception “arguably” applicable to Coley.
But Kumar cited Ewing v. California (2003) 538 U.S. 11, in which the U.S. Supreme Court upheld a third-strike sentence for a convicted shoplifter, and said the Carmony court erred in relying in part on a dissent in Ewing, in failing to factor the defendant’s possibility of early release on parole into its analysis, and in failing to consider the defendant’s prior criminal history in determining the proportionality of the sentence.
Coley, he noted, was convicted of burglary, voluntary manslaughter, burglary, rape in concert, and two burglaries between 1978 and 1988 and released on parole in 1998. Between his release and his arrest in the parole sweep three years later, he violated parole by testing positive for several controlled substances, failing to report and leaving the state without permission.
The prior offenses, Kumar added, were “particularly callous.” In the manslaughter case, Coley and another man—using an electrical chord—choked tied up a woman they accused of stealing drugs, then fell asleep and woke up to find the woman dead, then tried to conceal the body in a freezer after cutting her fingernails in an attempt to destroy evidence that she had scratched the other man while struggling.
Four months later, the jurist noted, Coley and the same accomplice raped a woman, ordered her to call another man and invite him for a visit, then stole the man’s wallet and knifepoint and threatened to kill him. The pre-sentence investigator said it was “absolutely incomprehensible” that the defendant continued to live in an apartment with a body in the freezer, that he was “a man without a conscience,” and that he showed no remorse and would likely commit more crimes if released from prison.
Those facts, Kumar said, were sufficient to establish that the sentence was not grossly disproportionate to the offense. Rather than abstractly consider the seriousness of failure to update, he reasoned, the court must also consider the seriousness of the crimes resulting in the registration requirement.
The case is In re Coley, 10 S.O.S. 4491.
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