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Keeping a man in prison for more than a quarter of a century for a “technical violation” of the sex-offender registration law was too much for two justices on Sacramento’s Third District Court of Appeal. On Monday, Coleman Blease and Rick Sims overturned a 26-years-to-life sentence for Keith Carmony, calling it a violation of the state and federal prohibitions against cruel and unusual punishment. The defendant’s failure to register, they held, was “completely harmless and no worse than a breach of an overtime parking ordinance.” “If the constitutional prohibition is to have a meaningful application,” Blease wrote, “it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law.” Justice George Nicholson dissented, chastising the majority for calling Carmony’s violation harmless. “We rightly place strict requirements on sex offenders so we can keep tabs on them,” he wrote. Carmony, a registered sex offender since being convicted of assaulting his then-girlfriend’s 9-year-old daughter in 1983, was arrested in 1999 for not registering with authorities, as required by law, within five days of his Oct. 22 birthday. However, he had registered 29 days earlier when he moved with his wife to a new residence. A trial court judge in Shasta County sentenced Carmony to the life term, after taking into account that he had not registered in 1990 and 1997, the latter landing him in state prison for 32 months. In his opinion, Justice Blease called this a “rare case” in which the harshness of the penalty is “grossly disproportionate” to the offense, which he said was “an entirely passive, harmless and technical violation of the registration law.” “The stated purpose of the birthday registration requirement was (and still is) to ‘update’ the existing registration information,” he wrote. “Here, there was no new information to update, and the state was aware of that fact.” Blease also pointed out that the penalty imposed on Carmony was “substantially greater” than sentences for second-degree murder, voluntary manslaughter, mayhem, kidnapping, first-degree robbery, rape, oral copulation with a person under 14 and lewd acts on a child under 14. He also noted that Carmony had committed only one sex crime in his life, had recently married, maintained a residence, participated in Alcoholics Anonymous and worked as a forklift operator in Redding. “It is a rare case that violates the prohibition against cruel and/or unusual punishment,” Blease conceded. “However, there must be a bottom to that well.” In his dissent, Justice Nicholson said Carmony’s case doesn’t present a “bottom-of-the-well scenario.” “It would be cruel and unusual punishment to torture a third-striker or to give a life term to a petty thief with no prior record,” he wrote. “Those are bottom-of-the-well scenarios.” Nicholson also accused the majority of ignoring its own precedent in People v. Meeks, 123 Cal.App.4th 695, a 2004 opinion in which the court said that a life sentence for failing to register wasn’t grossly disproportionate. “I see no reason to turn precedent on its ear,” he wrote. Nathan Barankin, spokesman for the attorney general’s office, said the opinion is under review. Sacramento solo practitioner Victor Haltom, who represented Carmony, said he wasn’t aware of any other appeal court ruling since the passage of the Three Strikes law that has held that a life sentence for a registration offense was cruel and unusual. He expects the state to appeal. “I’m ecstatic about [Monday's] ruling,” he said, “but wary about the prospects for the future.” He has reason to hope, though. In July, the state Supreme Court reversed the Third District for ruling that Carmony’s trial judge had abused his discretion in refusing to strike two prior convictions. The court also sent the case back and ordered the Third District to render a ruling on the constitutional issue. In doing so, state Supreme Court Justice Carlos Moreno, joined by Justice Ming Chin, reluctantly concurred with the majority, “subject to the caveat that the sentence may yet be overturned on constitutional grounds.” Monday’s ruling is People v. Carmony, 05 C.D.O.S. 2601.

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