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Name: In re Coley
Case #: B224400
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 08/04/2010
Subsequent History: rev. granted 11/10/10 (S185303)

Whether a sentence is cruel and unusual punishment in violation of the Eight Amendment is analyzed under a narrow proportionality assessment, with consideration given to the instant offense, in conjunction with the recidivist history of the petitioner challenging the sentence. Petitioner was convicted of failing to update his sex offender registration within five days of his birthday and, under the Strike’s Law, was sentenced to 25 years to life. Following the denial of his petition for review, he filed a habeas corpus petition challenging the sentence as being in violation of the Eight Amendment. The Supreme Court remanded with direction to show cause why appellant was not entitled to relief in view of People v. Carmony (2005) 127 Cal.App.4th 1066, which found that a life sentence for failure to register was cruel and unusual punishment. Referencing Ewing v. California (2003) 538 U.S.1 and Rummel v. Estelle (1980) 445 U.S. 263, the appellate court observed that in considering the gravity of the offense in proportion to the sentence imposed, petitioner’s criminal history, as it pertains to the legislative objective of public safety, is to be considered. Petitioner here has a record of particularly callous crimes and lengthy periods of incarceration. He is a long-time drug abuser, unable to conform his conduct to regulations of parolees and, in fact, was a parolee at large when the instant offense occurred. This recidivist behavior adds great weight to the gravity of the instant offense, such that the lengthy sentence is justified by the State’s public safety interests in deterring and incapacitating recidivist offenders. The court rejected Carmony’s characterization of the failure to register offense as being harmless and technical in nature; its focus on the instant offense triggering the life sentence, with recidivism playing a limited role; and its reliance on the dissenting opinion in Ewing, supra.