Supreme Court of California Justia
Docket No. S115090
People v. Carmony


Filed 7/8/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S115090
v.
) Ct.App.
3
C038802
KEITH ISHMEAL CARMONY,
Shasta
County
Defendant and Appellant.
) Super.
Ct.
No.
00F856

In this case, defendant Keith Ishmeal Carmony pled guilty to one count for
failure to register in violation of Penal Code section 290, subdivision (g)(2)1 and
admitted that he had suffered three prior “strikes” under the three strikes law. (§§
667, subd. (b)-(i), 1170.12.) Carmony moved to dismiss these strikes pursuant to
section 1385, but the trial court refused to do so and sentenced him to 26 years to
life in accordance with the three strikes law. We now consider what standard of
review should be applied to the trial court’s decision not to dismiss or strike a
sentencing allegation under section 1385 and whether, under this standard, the
court erred in making this decision. We conclude that the court’s decision not to
strike a prior conviction allegation should be reviewed under the deferential abuse

1
All further statutory references are to the Penal Code unless otherwise
stated.
1



of discretion standard and that the court did not abuse its discretion in refusing to
do so.
I.
Due to a 1983 conviction for oral copulation by force or fear, or with a
minor under age 14 (§ 288a, subd. (c)), Carmony had to register as a sex offender
pursuant to section 290. In this case, Carmony failed to register with the Redding
Police Department within five days of his birthday—October 22, 1999—even
though he had registered on September 16 and again on September 23 in order to
notify the police of his new address.2 At the time of the offense, Carmony already
had two prior convictions for failing to register but had registered with the
Redding Police Department in 1995, 1996, 1998 and 1999. Upon discovering that
Carmony had failed to register, his parole agent asked him to bring his check stubs
to her office. When Carmony reported to the parole office, the agent arrested him.
The criminal complaint charged Carmony with one count of willful failure
to register in violation of section 290, subdivision (g)(2). The complaint also
alleged one prior felony conviction (§ 667.5, subd. (b)) and three prior serious
and/or violent felony convictions—the strikes (§ 1170.12).
Carmony’s first strike arose from a 1983 conviction3 for oral copulation by
force or fear, or with a minor under age 14. (§ 288a, subd. (c).) In this crime, an
intoxicated Carmony became angry with his girlfriend at the time and, in apparent

2
Carmony’s address had not changed in the interim. He also claimed that
his parole agent knew his address and that he would have registered if someone
had advised him of his obligation to do so.
3
As noted in the Court of Appeal opinion, “[t]he charging document refers
to the date of conviction for the offense as April 1980, but the probation report
indicates it was in 1983.”
2



retaliation, picked up her nine-year-old daughter from school and “basically raped
her.”
Carmony’s second and third strikes arose from two 1993 convictions for
assault with a deadly weapon or by means of force likely to produce great bodily
injury. (§ 245, subd. (a)(1).) In the first incident, Carmony punched and kicked
his girlfriend and caused her to miscarry. In the second incident, he punched
another girlfriend and cut her hand with a knife.
Carmony ultimately pled guilty to the one count of failure to register
(§ 290, subd. (g)(2)), and admitted he had suffered three prior strikes (§ 1170.12)
and one prior prison term (§ 667.5, subd. (b)). The court referred the matter to the
probation department for a presentence report and asked it to recommend whether
the court should dismiss any strikes pursuant to People v. Cluff (2001) 87
Cal.App.4th 991 (Cluff).
The probation department reported that Carmony was 40 years old at the
time of the offense and married. He had a nine-year-old daughter from a previous
common law relationship who resided with her mother. According to the
department, Carmony had a long history of alcohol and drug abuse, and alcohol
had apparently contributed to all of his prior offenses. Although Carmony had
never participated in a substance abuse treatment program, he had attended
Alcoholics Anonymous meetings. And, prior to committing the current offense,
he had obtained a job and performed well, but had quit after only a short time.
The department also noted that Carmony had received written notice of his
obligation to register on several occasions, including when he registered on
September 23—less than one month before his birthday. His parole agent also
allegedly called him on his birthday to remind him of his duty to register.
Carmony, however, disputed this.
3

Finally, the department reported that Carmony had multiple juvenile
adjudications and had committed numerous parole violations. His adult criminal
record was also lengthy and included numerous other convictions in addition to his
three strike offenses and his two prior convictions for failure to register.
Specifically, Carmony suffered: (1) two separate convictions for second degree
burglary in 1977 and 1978 (Pen. Code, § 459); (2) a conviction for petty theft with
a prior in 1985 (Pen. Code, § 666); (3) two separate convictions for driving under
the influence in 1988 and 1992 (Veh. Code, § 23152, subd. (a)); (4) two separate
convictions for violating Penal Code section 148 in 1988 and 1991; and (5) a
conviction for trespassing (Pen. Code, § 602, subd. (1)) and petty theft (Pen. Code,
§ 488) in 1990.
At the end of its presentence report, the probation department suggested
that the court could appropriately strike one of Carmony’s prior serious and/or
violent felony convictions in light of Cluff, supra, 87 Cal.App.4th 991. But the
court would have to strike two of these convictions in order to make a difference
in his sentence. Accordingly, the department recommended that Carmony receive
a sentence of 26 years to life.
After receiving the report, Carmony moved to dismiss two of his strikes
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)
and Cluff, supra, 87 Cal.App.4th 991. The trial court declined. According to the
court, Carmony had a lengthy criminal record “with a yearly visit to state prison
most of his adult life.” The court also noted that Carmony could not plausibly
claim that he did not know about his duty to register within five days of his
birthday. Based on these facts and Carmony’s poor work record and lack of future
prospects, the court concluded that he “certainly” fell “within the spirit of . . . the
3-strikes law.”
4

The Court of Appeal reversed, holding that the trial court abused its
discretion by refusing to dismiss any of Carmony’s strikes. Although the court
“acknowledged that [Carmony’s] criminal record [was] serious,” it found that his
current offense “must be characterized as ‘the most technical violation of the
section 290 registration requirement we have seen.’ ” The court further concluded
that “commission of the current offense bears little indication that defendant has
recidivist tendencies to commit other offenses” and that the offense “was passive
and without practical impact in a way that many misdemeanor offenses and minor
drug crimes are not.” Based solely on the “nature and circumstances of the
present offense,” the Court of Appeal found that Carmony fell outside the spirit of
the three strikes law and reversed.4 In remanding for resentencing, the court noted
that Carmony did not fall “entirely outside the spirit of the law” and suggested that
the trial court “may wish to consider dismissing two prior strikes and sentencing
defendant as a second-strike offender.”
We granted review.
II.
A.
Under section 1385, subdivision (a), a “judge . . . may, either of his or her
own motion or upon the application of the prosecuting attorney, and in furtherance
of justice, order an action to be dismissed.” “In Romero, we held that a trial court
may strike or vacate an allegation or finding under the Three Strikes law that a
defendant has previously been convicted of a serious and/or violent felony, on its
own motion, ‘in furtherance of justice’ pursuant to . . . section 1385(a).” (People
v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) We further held that “[a]

4
The court therefore declined to consider whether Carmony’s sentence
constituted cruel and/or unusual punishment.
5



court’s discretionary decision to dismiss or to strike a sentencing allegation under
section 1385 is” reviewable for abuse of discretion. (Romero, supra, 13 Cal.4th at
p. 531.)
We did not, however, determine whether a trial court’s decision not to
dismiss or strike a prior serious and/or violent felony conviction allegation under
section 1385 is reviewable for abuse of discretion. Most Courts of Appeal have
held that such a decision is reviewable for abuse of discretion.5 But one Court of
Appeal has stated that “[t]here is no authority granting the appellate courts the
ability to review a court’s informed decision to not exercise its section 1385 power
in the furtherance of justice.” (People v. Benevides (1998) 64 Cal.App.4th 728,
735, fn. omitted (Benevides).) According to Benevides, a court should “not
reweigh the circumstances of the case to determine whether, in [its] opinion, the
trial court should have, or properly refrained from, exercising its discretion to
strike a prior conviction.” (Id. at p. 733, fn. 6.) Rather, review is available only if
the “court’s refusal or failure to exercise its section 1385 discretion to dismiss or
strike is based on a mistaken belief regarding its authority to do so” (id. at p. 735),
or if the “court expresses clearly improper reasons for refusing to exercise its

5
(See, e.g., People v. Jones (2002) 101 Cal.App.4th 220, 233 [reviewing a
trial court’s failure to strike a prior under section 1385 for abuse of discretion];
People v. Romero (2002) 99 Cal.App.4th 1418, 1434 [same]; People v. Zichwic
(2001) 94 Cal.App.4th 944, 961 [same]; People v. Cole (2001) 88 Cal.App.4th
850, 873, fn. 9 [same]; People v. Ortega (2000) 84 Cal.App.4th 659, 666 (Ortega)
[same]; People v. Stone (1999) 75 Cal.App.4th 707, 717 (Stone) [same]; People v.
Barrera
(1999) 70 Cal.App.4th 541, 555 [same]; People v. Myers (1999) 69
Cal.App.4th 305, 309 (Myers) [same]; People v. Cline (1998) 60 Cal.App.4th
1327, 1337 [same]; People v. Gillispie (1997) 60 Cal.App.4th 429, 435 (Gillispie)
[same]; see also People v. Mack (1986) 178 Cal.App.3d 1026, 1033-1034
[reviewing a court’s refusal to strike a sentencing enhancement for abuse of
discretion].)
6



discretion” (ibid., fn. 7). We now resolve this conflict, and conclude that a court’s
failure to dismiss or strike a prior conviction allegation is subject to review under
the deferential abuse of discretion standard.
As an initial matter, we note that the relevant case law overwhelmingly
supports this conclusion. Although we have not resolved this question in the
context of a court’s refusal to strike a sentencing allegation, we have, in the past,
reviewed a court’s decision not to exercise its section 1385 discretion to dismiss in
other contexts for abuse of discretion. (See People v. Memro (1995) 11 Cal.4th
786, 835-836 [reviewing a trial court’s denial of “a motion to dismiss the
information brought under section 1385 . . . for an abuse of discretion”].)
Moreover, in People v. Benson (1998) 18 Cal.4th 24, we left open the possibility
that there may be circumstances in which a trial court abuses its discretion by
failing to strike a prior serious and/or violent felony conviction allegation. (See id.
at p. 36, fn. 8.) We alluded to this possibility again in People v. Sanchez (2001) 24
Cal.4th 983, 993. In doing so, we implied that a trial court’s decision not to strike
is subject to review for abuse of discretion. (See Ortega, supra, 84 Cal.App.4th at
p. 665, fn. 6.) Following these leads, virtually every Court of Appeal has held that
a court’s decision not to strike a prior pursuant to section 1385 should be reviewed
for abuse of discretion. (See ante, at p. 6, fn. 5.)
Like our Courts of Appeal, we follow our own lead and hold that a trial
court’s refusal or failure to dismiss or strike a prior conviction allegation under
section 1385 is subject to review for abuse of discretion. We reach this holding
not only because of the overwhelming case law, but also as a matter of logic.
“Discretion is the power to make the decision, one way or the other.” (Myers,
supra, 69 Cal.App.4th at p. 309.) We have previously concluded that a court’s
decision to strike a qualifying prior conviction is discretionary. (See Romero,
supra, 13 Cal.4th at p. 530.) As such, a court’s decision not to strike a prior
7

necessarily requires some exercise of discretion. Because these two decisions are
flip sides of the same coin, we see no reasoned basis for applying a different
standard of review to a court’s decision not to strike.
We therefore reject Benevides to the extent it holds that appellate courts
lack authority to review a trial “court’s informed decision” not to “exercise its
section 1385 power in furtherance of justice.” (Benevides, supra, 64 Cal.App.4th
at p. 735.) Indeed, we do not find persuasive the grounds proffered by Benevides
in support of this holding. In refusing to review the court’s decision not to strike a
prior for abuse of discretion, Benevides noted that “[s]ection 1385 does not confer
a motion or right to relief upon the defendant” (Benevides, at p. 734), and that “a
trial court is under no obligation to rule on such a ‘motion’ ” (ibid.). According to
Benevides, it therefore “follows that if the court does not exercise its power to
dismiss or strike, there is no review available to defendant on appeal.” (Ibid.)
This reasoning, however, is faulty. A defendant has no right to make a
motion, and the trial court has no obligation to make a ruling, under section 1385.
But he or she does have the right to “invite the court to exercise its power by an
application to strike a count or allegation of an accusatory pleading, and the court
must consider evidence offered by the defendant in support of his assertion that
the dismissal would be in furtherance of justice.” (Rockwell v. Superior Court
(1976) 18 Cal.3d 420, 441.) And “[w]hen the balance falls clearly in favor of the
defendant, a trial court not only may but should exercise the powers granted to
him by the Legislature and grant a dismissal in the interests of justice.” (People v.
Superior Court (Howard) 69 Cal.2d 491, 505, italics added.) Nonetheless, any
failure on the part of a defendant to invite the court to dismiss under section 1385
following Romero waives or forfeits his or her right to raise the issue on appeal.
(See People v. Scott (1994) 9 Cal.4th 331, 352-353.)
8

In light of the rights accorded to a defendant and the limitations on the trial
court’s power under section 1385, the defendant’s inability to move to dismiss
under section 1385 should not, as suggested by Benevides, preclude him or her
from raising the erroneous failure to do so on appeal. (See Gillispie, supra,
60 Cal.App.4th at p. 433 [“The fact that an action is taken on the court’s own
motion does not preclude the possibility of error appearing on the record”].)
Indeed, the prosecution has the power to appeal a court’s decision to strike a prior
under section 1385 even though it did not make a motion to do so. (Romero,
supra, 13 Cal.4th at p. 531.) Thus, as a matter of logic and fairness, the defendant
should have the concomitant power to appeal a court’s decision not to dismiss a
prior under section 1385 even though he or she cannot make a motion to dismiss.
The fact that section 1385 only states that “[t]he reasons for the dismissal
must be set forth in an order entered upon the minutes” (§ 1385, subd. (a)) and
does not require a court to “explain its decision not to exercise its power to dismiss
or strike” does not compel a different conclusion. (Benevides, supra,
64 Cal.App.4th at p. 734.) The absence of such a requirement merely reflects the
legislative presumption that a court acts properly whenever it sentences a
defendant in accordance with the three strikes law. (See People v. Strong (2001)
87 Cal.App.4th 328, 337-338 (Strong) [noting that the three strikes law establishes
a sentencing requirement that must be applied unless the court concludes that the
defendant falls outside the spirit of the law].) It does not purport to define the
appropriate standard of review on appeal. Accordingly, we conclude that a trial
court’s failure to dismiss or strike a prior serious and/or violent felony conviction
allegation under section 1385 should be reviewed for abuse of discretion. We
therefore disapprove of People v. Benevides, supra, 64 Cal.App.4th 728, to the
extent it conflicts with our decision here today.
9

B.
Our inquiry does not, however, end with our decision to apply the
deferential abuse of discretion standard. We must still determine whether the trial
court abused its discretion by refusing to strike Carmony’s priors. We conclude it
did not.
In reviewing for abuse of discretion, we are guided by two fundamental
precepts. First, “ ‘[t]he burden is on the party attacking the sentence to clearly
show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve the
legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.’ ” (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez), quoting People v. Superior
Court (Du) (1992) 5 Cal.App.4th 822, 831.) Second, a “ ‘decision will not be
reversed merely because reasonable people might disagree. “An appellate tribunal
is neither authorized nor warranted in substituting its judgment for the judgment of
the trial judge.” ’ ” (Alvarez, at p. 978, quoting People v. Preyer (1985) 164
Cal.App.3d 568, 573.) Taken together, these precepts establish that a trial court
does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.
Because “all discretionary authority is contextual” (Alvarez, supra, 14
Cal.4th at p. 978), we cannot determine whether a trial court has acted irrationally
or arbitrarily in refusing to strike a prior conviction allegation without considering
the legal principles and policies that should have guided the court’s actions. We
therefore begin by examining the three strikes law.
“[T]he Three Strikes initiative, as well as the legislative act embodying its
terms, was intended to restrict courts’ discretion in sentencing repeat offenders.”
(Romero, supra, 13 Cal.4th at p. 528.) To achieve this end, “the Three Strikes law
10

does not offer a discretionary sentencing choice, as do other sentencing laws, but
establishes a sentencing requirement to be applied in every case where the
defendant has at least one qualifying strike, unless the sentencing court
‘conclud[es] that an exception to the scheme should be made because, for
articulable reasons which can withstand scrutiny for abuse, this defendant should
be treated as though he actually fell outside the Three Strikes scheme.’ ” (Strong,
supra, 87 Cal.App.4th at pp. 337-338, fn. omitted.)
Consistent with the language of and the legislative intent behind the three
strikes law, we have established stringent standards that sentencing courts must
follow in order to find such an exception. “[I]n ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding under the Three
Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code
section 1385(a), or in reviewing such a ruling, the court in question must consider
whether, in light of the nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit,
in whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.” (Williams, supra,
17 Cal.4th at p. 161.)
Thus, the three strikes law not only establishes a sentencing norm, it
carefully circumscribes the trial court’s power to depart from this norm and
requires the court to explicitly justify its decision to do so. In doing so, the law
creates a strong presumption that any sentence that conforms to these sentencing
norms is both rational and proper.
In light of this presumption, a trial court will only abuse its discretion in
failing to strike a prior felony conviction allegation in limited circumstances. For
example, an abuse of discretion occurs where the trial court was not “aware of its
11

discretion” to dismiss (People v. Langevin (1984) 155 Cal.App.3d 520, 524), or
where the court considered impermissible factors in declining to dismiss
(Gillispie, supra, 60 Cal.App.4th at p. 434). Moreover, “the sentencing norms
[established by the Three Strikes law may, as a matter of law,] produce[] an
‘arbitrary, capricious or patently absurd’ result” under the specific facts of a
particular case. (Ibid.)
But “[i]t is not enough to show that reasonable people might disagree about
whether to strike one or more” prior conviction allegations. (Myers, supra, 69
Cal.App.4th at p. 310.) Where the record is silent (see Gillispie, supra, 60
Cal.App.4th at p. 434 [“On a silent record in a post-Romero case, the presumption
that a trial court ordinarily is presumed to have correctly applied the law should be
applicable”]), or “[w]here the record demonstrates that the trial court balanced the
relevant facts and reached an impartial decision in conformity with the spirit of the
law, we shall affirm the trial court’s ruling, even if we might have ruled differently
in the first instance” (Myers, at p. 310). Because the circumstances must be
“extraordinary . . . by which a career criminal can be deemed to fall outside the
spirit of the very scheme within which he squarely falls once he commits a strike
as part of a long and continuous criminal record, the continuation of which the law
was meant to attack” (Strong, supra, 87 Cal.App.4th at p. 338), the circumstances
where no reasonable people could disagree that the criminal falls outside the spirit
of the three strikes scheme must be even more extraordinary. Of course, in such
an extraordinary case—where the relevant factors described in Williams, supra, 17
Cal.4th 148, manifestly support the striking of a prior conviction and no
reasonable minds could differ—the failure to strike would constitute an abuse of
discretion.
This case, however, is far from extraordinary. Carmony failed to register
even though he was informed of his duty to do so on several occasions. He had a
12

lengthy and violent criminal record—which included two prior convictions for
failing to register. He had also done little to address his substance abuse problems,
had a spotty work history, and appeared to have poor prospects for the future. All
of these factors were relevant to the trial court’s decision under Romero, and the
court properly balanced them in concluding that Carmony fell within the spirit of
the three strikes law. Indeed, Carmony appears to be “an exemplar of the
‘revolving door’ career criminal to whom the Three Strikes law is addressed.”
(Stone, supra, 75 Cal.App.4th at p. 717.) As such, the court’s decision not to
strike Carmony’s priors is neither irrational nor arbitrary and does not constitute
an abuse of its discretion.
By contrast, the Court of Appeal, in reversing, erroneously focused on a
single factor—the nature and circumstances of Carmony’s current offense—to the
exclusion of all others. (See People v. Garcia (1999) 20 Cal.4th 490, 501 [noting
that judicially mandating the predominance of a single factor in the court’s
exercise of discretion “ ‘would eviscerate the essence of its statutory authority’ ”].)
By judicially mandating the predominance of this factor, the court not only
improperly substituted its own judgment for the judgment of the trial court (see
Alvarez, supra, 14 Cal.4th at p. 978), it also eviscerated the trial court’s discretion
under our decisions in Romero and Williams.
Finally, Cluff does not dictate a contrary conclusion. Even assuming Cluff
was correctly decided, it is distinguishable. In Cluff, the defendant failed to
register on his birthday in violation of section 290. Following the defendant’s
conviction for failure to register, the trial court denied his “Romero motion” and
sentenced him “to a term of 25 years to life.” (Cluff, supra, 87 Cal.App.4th at p.
996.) In refusing to strike the defendant’s prior felony conviction allegations, the
court relied in part on the defendant’s obfuscatory conduct. (See id. at p. 1001.)
13

The Court of Appeal reversed. According to the court, “none of the facts
before the court—whether considered separately or together—support the
inference that Cluff failed to update his registration in order to obfuscate his
residence or escape the reach of law enforcement.” (Cluff, supra, 87 Cal.App.4th
at p. 1003.) Because “the evidence in the record d[id] not support the inference of
obfuscation that was central to the trial court’s ruling,” the court found an abuse of
discretion and remanded for resentencing. (Id. at p. 1004.)
Unlike the trial court in Cluff, which relied on a factor—the defendant’s
intentional obfuscation of his whereabouts—allegedly unsupported by the record,
the trial court in this case refused to strike defendant’s prior convictions based on
factors allowed under the law and fully supported by the record. Thus, the Court
of Appeal in this case, unlike the court in Cluff, did not conclude that the trial
court relied on improper factors in refusing to strike. Rather, it simply disagreed
with the court’s weighing of these factors. And in doing so, it erred. (See Alvarez,
supra, 14 Cal.4th at p. 978 [holding that an appellate court may not substitute its
judgment for the judgment of the trial court]; Myers, supra, 69 Cal.App.4th at
p. 310 [holding that an appellate court must affirm even if it “might have ruled
differently in the first instance”].) Accordingly, we hold that the trial court did not
abuse its discretion in refusing to strike Carmony’s prior serious and/or violent
felony conviction allegations.6

6
We do not, however, address the issue of whether the sentence violates the
constitutional guarantees against cruel and/or unusual punishment or double
jeopardy, and leave the resolution of this issue for the Court of Appeal on remand.
14



III.
We reverse the judgment of the Court of Appeal and remand for further
proceedings consistent with this opinion.
BROWN, J.
WE CONCUR:

GEORGE,
C.J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
15





CONCURRING OPINION BY MORENO, J.

In this case, the majority holds that the trial court’s decision not to dismiss
a strike against a defendant pursuant to Penal Code section 1385, subdivision (a) is
reviewable under an abuse of discretion standard, and that the trial court in this
case did not abuse its discretion in refusing to dismiss any strikes. The majority
leaves open the issue of whether the resulting sentence of 26 years to life “violates
the constitutional guarantees against cruel and/or unusual punishment or double
jeopardy . . . .” (Maj. opn., ante, at p. 14, fn. 6.) Obviously, it would be an abuse
of the trial court’s discretion not to dismiss the strike if refusing to do so leads to a
sentence that violates the state or federal prohibition against cruel and unusual
punishment. Therefore, the majority holding that the trial court did not abuse its
discretion is actually a holding that it did not abuse the statutory discretion given
to it by section 1385, subdivision (a) and the Three Strikes law. In arriving at that
holding, the majority makes clear that there is a class of cases in which an
appellate court can determine, without reaching any constitutional issues, that the
trial court abused its discretion on statutory grounds.
This class of cases falls essentially into two categories, which may be
termed procedural and substantive. The former occurs when the trial court
proceeds in an improper manner, i.e, “where the trial court was not ‘aware of its
discretion’ to dismiss [citation], or where the court considered impermissible
factors in declining to dismiss [citation].” (Maj. opn., ante, at pp. 11-12.) The
1



latter occurs when, notwithstanding the lack of the above irregularities, the
resulting sentence is clearly erroneous because “the relevant factors described in
[People v. ] Williams [(1998)] 17 Cal.4th 148,[1] manifestly support the striking of
a prior conviction . . . .” (Maj. opn., ante, at p. 13.)
The majority concludes that the sentence in this case falls into neither of
those two categories. I agree in light of the extent of defendant’s prior criminal
record and his poor prospects. And yet, it is difficult to escape the conclusion that
the electorate that enacted the Three Strikes law did not intend to impose a life
sentence on someone whose last offense was a technical violation of the sex
offender registration statute  failing to register within five days of his birthday
although he had registered a month earlier and had not changed his address since
then  that posed no danger to the public. This case joins the growing ranks of
cases in which life sentences were imposed after the commission of minor
felonies. (See Vitiello, California’s Three Strikes and We’re Out: Was Judicial
Activism California’s Best Hope? (2004) 37 U.C. Davis L.Rev. 1025, 1026
[“Widely reported Three Strikes cases have involved trivial offenses  such as
the theft of the bicycle, a slice of pizza, cookies or a bottle of vitamins  that
have resulted in severe sentences.”].) Subject to the caveat that the sentence may
yet be overturned on constitutional grounds, I reluctantly concur in the majority
opinion. But because the standard for what constitutes cruel and unusual
punishment is itself extremely rigorous (see, e.g., Lockyer v. Andrade (2003) 538
U.S. 63 [upholding 50-year-to-life sentence for defendant convicted of two petty

1
Those factors include “the nature and circumstances of [a defendant’s]
present felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects . . . .” (Williams, supra, 17
Cal.3d at p. 161.)
2



thefts with a prior conviction]), the determination of whether such sentences are
reasonable lies chiefly with the electorate in its capacity to amend the law.
MORENO, J.
I CONCUR:
CHIN, J.
3

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Carmony
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 2/28/03 - 3d Dist.
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S115090
Date Filed: July 8, 2004
__________________________________________________________________________________

Court:

Superior
County: Shasta
Judge: Wilson Curle

__________________________________________________________________________________

Attorneys for Appellant:

Victor S. Haltom, under appointment by the Supreme Court, for Defendant and Appellant.

Jack Funk, Assistant Public Defender; and Michael Vitiello for California Public Defenders Association as
Amicus Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Jo Graves, Assistant Attorney General, Janet E. Neeley, Stephen G. Herndon
and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.


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Counsel who argued in Supreme Court (not intended for publication with opinion):

Victor S. Haltom
428 J Street, Suite 350
Sacramento, CA 95814
(916) 444-8663

David Andrew Eldridge
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-6291

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Opinion Information
Date:Docket Number:
Thu, 07/08/2004S115090

Parties
1Carmony, Keith Ishmeal (Defendant and Appellant)
Represented by Victor S. Haltom
Attorney At Law
428 J St #350
Sacramento, CA

2The People (Plaintiff and Respondent)
Represented by David Andrew Eldridge
Ofc Attorney General
1300 "I" Street
Sacramento, CA

3California Public Defenders Association (Amicus curiae)
Represented by John Nelson Funk
Ofc Public Defender
800 Ferry St
Martinez, CA


Disposition
Jul 8 2004Opinion: Reversed

Dockets
Apr 9 2003Petition for review filed
  in Sacramento by Respondent People
Apr 15 2003Received Court of Appeal record
  C038802 - one doghouse
May 21 2003Petition for Review Granted (criminal case)
  Votes: George, CJ., Kennard, Baxter and Brown, JJ.
Jun 16 2003Request for extension of time filed
  counsel for respondent (People) requests extension to July 20, 2003 to file the opening brief on the merits.
Jun 20 2003Filed:
  by (AG) counsel for petitioner Supplemental to Request for Extension of Time.
Jun 26 2003Extension of time granted
  Respondent's time to serve and file the opening brief on the merits is extended to and including July 20, 2003. No further extensions will be granted.
Jul 15 2003Counsel appointment order filed
  Victor Haltom is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Jul 16 2003Request for extension of time filed
  by counsel for respondent (People) requesting 14-day extension of time to file the opening brief on the merits.
Jul 17 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief is extended to and including August 4, 2003.
Jul 30 2003Opening brief on the merits filed
  by counsel for respondent (People)
Aug 29 2003Application to file over-length brief filed
  by counsel for appellant ( K. Carmony)
Aug 29 2003Received:
  over-sized answer brief on the merits.
Sep 8 2003Application to file over-length brief denied
 
Sep 24 2003Received:
  Answer Brief from counsel for appellant (Keith Carmony)
Oct 3 2003Filed:
  by counsel for appellant Appl. for permission to file late answer brief on the merits.
Oct 7 2003Answer brief on the merits filed
  with permission by counsel for appellant
Oct 24 2003Reply brief filed (case fully briefed)
  by counsel for resp. (People)
Nov 12 2003Compensation awarded counsel
  Atty Haltom
Nov 24 2003Received application to file amicus curiae brief; with brief
  Calif. Public Defenders Assoc. in support of appellant.
Dec 2 2003Permission to file amicus curiae brief granted
  Calif. Public Defenders Assoc.
Dec 2 2003Amicus curiae brief filed
  Calif. Public Defenders Assoc. in support of appellant. (non-party) An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 6 2004Case ordered on calendar
  5-6-04, 9am, S.F.
May 4 2004Received:
  from counsel for aplt. Additional Authorities re: Oral Argument
May 6 2004Cause argued and submitted
 
Jul 8 2004Opinion filed: Judgment reversed
  and Remanded OPINION BY: Brown, J. --- joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, JJ. CONCURRING OPINION BY: Moreno, J. --- joined by: Chin, J.
Aug 10 2004Remittitur issued (criminal case)
 
Aug 10 2004Note:
  Records sent to CA/3
Aug 13 2004Received:
  Receipt for remittitur from CA/3
Aug 18 2004Compensation awarded counsel
  Atty Haltom

Briefs
Jul 30 2003Opening brief on the merits filed
 
Oct 7 2003Answer brief on the merits filed
 
Oct 24 2003Reply brief filed (case fully briefed)
 
Dec 2 2003Amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website