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Three months after a 9th U.S. Circuit Court of Appeals panel took a small bite out of California’s Three Strikes law, another panel of the court has nibbled off a little more. On Thursday, Judges Marsha Berzon, Stephen Reinhardt and A. Wallace Tashima ruled unanimously that 25-year-to-life sentences for petty theft violate the Eighth Amendment’s prohibition against cruel and unusual punishment even if the defendants have a history of committing violent felonies. In November, 9th Circuit Judges Richard Paez, Mary Schroeder and Joseph Sneed reached a similar conclusion in Andrade v. Attorney General for the State of California, 270 F.3d 743, which held that a 50-years-to-life sentence for shoplifting was cruel and unusual punishment. “If we attempt to distinguish Andrade solely on the basis that [Earnest] Bray and [Richard] Brown have prior felonies that may have been violent, as opposed to serious,” Judge Berzon wrote Thursday, “then we would be punishing Bray and Brown as non-violent lawbreakers who were violent in the past.” While chipping at the state’s Three Strikes law, the judges in both Andrade and in Thursday’s ruling in Brown v. Mayle, 02 C.D.O.S. 1222, clearly stated that they were not invalidating it. Even so, the attorney general’s office has asked the U.S. Supreme Court to review Andrade. Bray and Brown, the defendants in Tuesday’s consolidated ruling, were convicted in separate trials of stealing, respectively, three videotapes and a steering-wheel alarm. Petty theft is normally a misdemeanor, but under California law petty theft with a prior theft conviction is itself a felony. And under Three Strikes it can count as a third strike and trigger stiff penalties. State lawyers had argued that Bray’s four prior convictions of robbery and Brown’s separate convictions of robbery and assault with a deadly weapon should be taken into account for Three Strikes’ purposes. Thursday’s 9th Circuit panel strongly disagreed and seemed eager to point out some of the discrepancies of the California law. For one, the panel noted that if petty theft is committed by someone with multiple prior convictions for nontheft offenses, including serious and violent crimes, the charge must be a misdemeanor and not subject to Three Strikes’ enhancements. “If Bray’s or Brown’s prior convictions had all been for assault or manslaughter, neither could have been sentenced to 25 years to life for his petty theft conviction,” Judge Berzon wrote. “Only a six-month misdemeanor sentence would have been possible.” The judges also brushed aside the state’s argument that the men’s sentences were not disproportionate in light of the fact that a few hundred other defendants who committed petty theft have been given the same prison term under Three Strikes. “If, for example, the state decided to chop off the hands of everyone convicted of speeding,” Berzon wrote, “the likely conclusion that such a sentence is cruel and unusual would not change because the state inflicted it on many people.” The court’s decision reverses separate rulings by U.S. District Judges William Shubb of Sacramento and Manuel Real of Los Angeles. It also remands the cases with instructions to issue writs of habeas corpus “if, within 60 days following the issuance of our mandate, California has not resentenced Bray and Brown.” Erwin Chemerinsky, the University of Southern California constitutional law professor who represented Bray and Brown and who was the victor in Andrade, could not be reached Thursday. Los Angeles-based Deputy Attorney General Stephanie Miyoshi referred calls to Hallye Jordan, the Sacramento spokeswoman for the attorney general’s office. “The attorney general supports the current law,” Jordan said. “He believes that because it gives judges the discretion to strike a third strike or priors in the interests of justice that that’s the best way to ensure sentences are appropriate. “Giving individual justices that right,” she added, “is better than some cookie-cutter approach.”

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