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Ninth Circuit: Habeas Petition Asserting That Gun Enhancement Is Cruel, ‘Outdated’ Fails
Opinion Rejects Assertion That Court of Appeal Failed to Recognize That Jurisprudence Supporting Constitutionality of Penalty Has Been Undermined by Legislative Changes
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the dismissal of a petition for a writ of habeas corpus filed by an inmate serving 25 years to life in prison on an enhancement for the intentional firing of a weapon that resulted in death, rejecting his argument that the Court of Appeal relied on outdated case law that did not take into account recent legislative changes.
In a memorandum opinion signed by Circuit Judges Johnnie B. Rawlinson, Lucy H. Koh, and Senior District Court Judge Sidney A. Fitzwater of the Northern District of Texas, sitting by designation, the court noted that an application for a writ of habeas corpus filed by a state court prisoner may only be granted in limited circumstances, saying:
“[Relief] is not warranted unless adjudication of the claim:
“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
Firing Weapon
Petitioning for relief was Jose Lepe, who was convicted in 2016 of firing a gun from a vehicle and a related enhancement, under Penal Code §12022.53, for intentional discharge causing death. He was sentenced to five years in prison on the substantive crime plus a determinate life sentence based on the firearm allegation.
Prosecutors with the Alameda County District Attorney’s Office had originally charged him with first-degree murder relating to the 2013 shooting death of Michael Stenger, but a jury found him not guilty on that charge.
On direct appeal, Div. Four of the First District Court of Appeal affirmed his convictions but remanded to allow the trial court to exercise discretion as to whether to strike the gun allegation based on newly enacted amendments to §12022.53, which made the imposition of the formerly mandatory enhanced penalty subject to judicial discretion. Subdivision (h) of the section now provides:
“The court may, in the interest of justice pursuant to Section 1385…, strike or dismiss an enhancement otherwise required to be imposed by this section.”
Sec. 1385 was itself amended in January 2022 to specify that, in deciding whether to dismiss an enhancement in the interests of justice, the court is required to “afford great weight” to mitigation evidence showing that the “offense is connected to mental illness” or that the “enhancement could result in a sentence of over 20 years.”
After Alameda Superior Court Judge Rhonda Burgess declined to strike the enhancement on remand, Lepe appealed again, this time arguing that the court erred in declining to dismiss the allegation. Div. Four affirmed the judgment.
Habeas Petition
In his habeas petition before the Ninth Circuit, Lepe argued:
“Petitioner alleges that his sentence of 30 years to life in prison violates the prohibition against cruel and unusual punishment under the Eighth and Fourteenth Amendments….Legislative changes that have gone into effect since petitioner’s sentencing and the related legislative histories make clear that the California Legislature has determined that the sentence petitioner received was far too harsh and the prior sentencing scheme was applied by judges in a discriminatory manner to the detriment of defendants like petitioner (defendants of color and those with mental health issues). Moreover, the sentences imposed for more serious crimes involving far more culpable mental states—such as first- and second-degree murder—are less severe than the sentence petitioner received.”
District Court Judge P. Casey Pitts of the Northern District of California dismissed the petition, citing the 2003 U.S. Supreme Court case of Lockyer v. Andrade, which affirmed a defendant’s sentence of 50 years to life on two theft counts based on California’s “Three Strikes” statutory scheme. Pitts opined:
“[T]he Supreme Court has upheld lengthier sentences for lesser crimes…, including most notably the 50-year sentence for…theft upheld in Andrade. Although Lepe identifies various distinctions…, such as Andrade’s significant recidivism, those distinctions are insufficient to demonstrate that the state court unreasonably applied the rule established in Andrade….”
Ninth Circuit’s View
Rawlinson, Koh, and Fitzwater noted:
“Lepe argues that several factors set his case apart from Andrade. These factors include: (1) that Lepe was convicted of a general intent crime, (2) that Lepe’s conviction was related to a single incident, and (3) that Lepe’s sentence was inconsistent with the legislative purpose of the statutory scheme of…§12022.53.”
Unpersuaded by these purported differences, the panel responded:
“These factual distinctions are insufficient to show that the state court applied a rule that contradicts Andrade’s governing law.”
The defendant also argued that Div. Four unreasonably referenced the legislative history surrounding the original version of §12022.53 in finding that the sentence is constitutionally proportionate. Addressing that contention, they said:
“Much of Lepe’s brief appears to be challenging the state court’s interpretation of state law. However, a state court’s interpretation of state law may not be reviewed on federal habeas.”
The judges continued:
“To the extent that Lepe argues that the California Court of Appeal’s decision unreasonably applied U.S. Supreme Court law requiring deference to legislative policy, that claim also fails. Lepe argues that ‘the legislative determinations’ that the California Court of Appeal ‘relied on in rejecting Lepe’s claim were out of date and had essentially already been invalidated by the Legislature.’ Therefore, according to Lepe, the California Court of Appeal’s reliance on out-of-date legislative reasoning for Cal. Pen. Code §12022.53 violates well-established judicial deference to state legislatures. There is no clearly established Supreme Court precedent that supports this argument.”
The case is Lepe v. Merchant, 24-4857.
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