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APPELLANT=S 1040-YEARS AND TEN LIFE TERMS CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT tc \l3 "APPELLANTS 1040-YEARS AND TEN LIFE TERMS CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

Medieval justice included putting a man in a hanging cage, keeping him there til he died, and, after birds of prey picked clean the skeleton, keeping the skeleton on as warning to other miscreants: perhaps this is something like what the trial court had in mind in sentencing appellant to 1,040 years in state prison, in addition to ten life terms. A sentence of 1,040 years plus ten lives is barbaric on its face, and constitutes cruel and unusual punishment in contravention of the Eighth and TA \s "Fourteenth Amendments" \c 3 \l "Fourteenth Amendment"Fourteenth Amendments and TA \s "article 1, section 17" \c 4 \l "article 1, section 17"article I, section 17 of the California Constitution. (TA \s "Enmund v. Florida (1982) 458 U.S. 782" \c 1 \l "Enmund v. Florida (1982) 458 U.S. 782"Enmund v. Florida (1982) 458 U.S. 782, 801; TA \s "Robinson v. California (1962) 370 U.S. 660" \c 1 \l "Robinson v. California (1962) 370 U.S. 660"Robinson v. California (1962) 370 U.S. 660; TA \s "People v. Dillon (1983) 34 Cal.3d 441" \c 2 \l "People v. Dillon (1983) 34 Cal.3d 441"People v. Dillon (1983) 34 Cal.3d 441, 479-482.)

A punishment is constitutionally offensive if it is Agrossly out of proportion to the severity of the crime@ (TA \s "Gregg v. Georgia (1976) 428 U.S. 153" \c 1 \l "Gregg v. Georgia (1976) 428 U.S. 153"Gregg v. Georgia (1976) 428 U.S. 153, 173), disproportionate to a defendant=s Apersonal responsibility and moral guilt@ (TA \s "Gregg v. Georgia (1976) 428 U.S. 153" \c 1Enmund v. Florida, supra, 458 U.S. at p. 801), or Aso disproportionate to the crime for which it is inflicted that it shocks the conscience and offends the fundamental notions of human dignity@ (TA \s "In re Lynch (1972) 8 Cal.3d 410" \c 2 \l "In re Lynch (1972) 8 Cal.3d 410"In re Lynch (1972) 8 Cal.3d 410, 424.) Though the Legislature has Athe broadest discretion possible in enacting penal statutes and in specifying punishment for crime, ... the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.@ (TA \s "People v. Anderson (1972) 6 Cal.3d 628" \c 2 \l "People v. Anderson (1972) 6 Cal.3d 628"People v. Anderson (1972) 6 Cal.3d 628, 640, cert. den. 405 U.S. 958.) Both trial and appellate courts have authority to deem a sentence cruel and unusual. (People v. Cromer (2001) 24 Cal.4th 889, 990-901; People v. Meeks (2004) 117 Cal.App.4th 891, 900.) Though Eighth Amendment jurisprudence has been most recently focused on affixing the perimeters of proportion, the fixed mark remains: a punishment Amust not be so sever as to be degrading to the dignity of human beings.@ (Furman v. Georgia (1972) 408 U.S. 238, 271 [33 L.Ed.2d 346, 92 S.Ct. 2726] (conc. opn. by Brennan, J.).)

In TA \s "Rummel v. Estelle (1980) 445 U.S. 263" \c 1 \l "Rummel v. Estelle (1980) 445 U.S. 263"Rummel v. Estelle (1980) 445 U.S. 263, 278, the United States Supreme Court upheld a life sentence for a non-violent third-time felony offender. The Court found that the Texas recidivist statute, while stringent, was not so untoward as to justify judicial intervention in Athe complexities confronting any court that would attempt@ to Aevaluate the position of any particular recidivist scheme....@ (Id., at pp. 280, 281.) InTA \s " Solem v. Helm (1983) 463 U.S. 277" \c 1 \l "Solem v. Helm (1983) 463 U.S. 277" Solem v. Helm (1983) 463 U.S. 277, 289-290 [77 L.Ed.2d 637, 103 S.Ct. 3001], the Court nonetheless reversed a sentence of life without the possibility of parole for a non-violent seven-time felon as Asignificantly disproportionate to his crime.@ (Id., at p. 303.) Justice Powell, writing for the Court, set forth a tripartite TA \s " Solem v. Helm (1983) 463 U.S. 277" \c 1Eighth Amendment analysis, requiring consideration of:

(I) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

(Id., at p. 292.) The life term in Solem was deemed Afar more severe@ than that in Rummel in main because the defendant in Rummel would be eligible for parole in 12 years, while there was no possibility for the Solem defendant=s release. (Solem v. Helm, supra, 463 U.S. at p. 292.)

In TA \s "Harmelin v. Michigan (1991) 501 U.S. 957" \c 1 \l "Harmelin v. Michigan (1991) 501 U.S. 957"Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [115 L.Ed.2d 836, 111 S.Ct. 2680], Justice Kennedy=s concurrence harmonized Rummel and Solem by suggesting, “the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are >grossly disproportionate= to the crime.” (See also, TA \s "Henderson v. Norris (8th Cir. 2001) 258 F.3d 706" \c 1 \l "Henderson v. Norris (8th Cir. 2001) 258 F.3d 706"Henderson v. Norris (8th Cir. 2001) 258 F.3d 706, 709; TA \s "United States v. Jones (10th Cir. 2000) 213 F.3d" \c 1 \l "United States v. Jones (10th Cir. 2000) 213 F.3d 1253"United States v. Jones (10th Cir. 2000) 213 F.3d 1253, 1261; TA \s "United States v. Bland (9th Cir. 1992) 961 F.2d." \c 1 \l "United States v. Bland (9th Cir. 1992) 961 F.2d. 123"United States v. Bland (9th Cir. 1992) 961 F.2d. 123, 128-129, cert. den. 506 U.S. 858.) In Harmelin, the Court upheld a life without possibility of parole term for drug offenders convicted of possessing more than 650 grams of cocaine. (TA \s "United States v. Bland (9th Cir. 1992) 961 F.2d." \c 1Harmelin v. Michigan, supra, 501 U.S. at pp. 996-1001.) Though Harmelin betrayed a split among the justices, two of whom argued the proposition that the Eighth Amendment mandated proportionality in sentencing was Asimply wrong@ (Id., at p. 965), four who would have found the sentence disproportionate under the TA \s "United States v. Bland (9th Cir. 1992) 961 F.2d." \c 1Solem test, and three, including Justice Kennedy, who averred that a non-capital sentence could be unconstitutionally, i.e., grossly, disproportionate (though the defendant there did not meet the standard). (Id., at p. 996-1001.)

After considering these factors, the second and third tiers of theTA \s "Furman v. Georgia (1972) 408 U.S. 238" \c 0 Solem analysis might be excused unless Aa threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.@ (Harmelin v. Michigan, supra, 501 U.S. at p. 1005.) As drugs are scourge of society, and Harmelin was convicted of possession between 32,500 and 65,000 doses, his punishment did not so ill-fit his crime. (Id., at p. 1002; accord, People v. Mantanez (2002) 98 Cal.App.4th 354, 366 [25-to-life term for heroin possession and receiving stolen property not cruel and unusual given defendant=s recidivism].)

In Ewing, the Court revisited the proportionality debate, again, resulting in a plurality opinion: the Court=s opinion, written by Justice O=Connor, was joined by Justice Kennedy and the Chief Justice, adopted Justice Kennedy=s approach in Harmelin, finding the Eighth Amendment contains a A >narrow proportionality principle=@ when applied to noncapital sentences. (Ewing v. California (2003) 538 U.S. 11, 20, quoting Harmelin v. Michigan, supra, 501 U.S. at p. 996-997 (conc. opn. by Kennedy, J.).) Under the plurality=s analysis, proportionality review is finally principled by the above disclaimer B that only Aextreme sentences that are >grossly disproportionate= to the crime@ are proscribed. Further, Solem did not mandate either inter- or intra-jurisdictional comparisons between offenses and punishments. (Ewing v. California, supra, 538 U.S. at p. 23, quoting Harmelin v. Michigan, supra, 501 U.S. at p. 1001.) The Eighth Amendment does not prohibit California from exercising its authority to incapacitate repeat offenders, and a sentence of 25-years-to-life for stealing $1,200 worth of merchandise after having two prior violent/serious felony convictions was not grossly disproportionate given that interest. (Id., at pp. 25, 28-30.) Justice Breyer, writing for the dissent B Justices Stevens, Breyer, Souter and Ginsberg B argued the facts of Ewing were not substantially different than those of Solem, and dictated the same Agrossly disproportionate@ finding. (Id., at p. 35.) In a separate dissent, Justice Stevens quoted Atkins v. Virginia (2002) 536 U.S. 311: A>The Eighth Amendment succinctly prohibits >excessive sanctions.=@ (Ewing v. California, supra, 538 U.S. at p. 33.) This prohibition covers everything from bails and fines to the death penalty; as sentences were one commonly indeterminate, judges historically had to exercise wide discretion in affixing punishment, discretion cabined by Aa broad and basic proportionality principle@ constitutionally secured. (Id., at p. 35; see also, Lockyer v. Andrade, supra, 538 U.S. at p. 83 (dis. opn. by Souter, J. [AIf Andrade=s sentence is not grossly disproportionate, the principle has no meaning.@].)

The question whether a sentence is grossly disproportionate to the crime is not confined to lengthy sentences for relatively minor offenses, nor is it mooted by the constringed reading of the prohibition under Ewing, for the bedrock still holds:

The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.

(Trop v. Dulles (1958) 356 U.S. 86, 100.) A sentence that makes mock of a man=s lifespan, that deals with a man as if he were, in fact, a monster, so preternatural that he must be locked away for a millennium and thirty-nine lifetimes to guarantee his being kept from society, degrades the dignity of all humanity. (Contra, id., at p. 101 [AThe Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.@].)

In People v. Deloza (1998) 18 Cal.4th 585, 600, the Supreme Court held the Three Strikes law required a specialized Aseparate occasion@ determination by the trial court in the decision to impose consecutive or concurrent terms; the Court reversed and remanded for resentencing, never addressing the Eighth Amendment issue posed by the 111-year to (four) life sentence. Justice Mosk=s concurrence was devoted to the issue, as:

Regrettably, multicentury sentences are becoming commonplace and generally remain unchallenged. Certainly there is understandable revulsion directed towards a defendant who has committed numerous counts of illegal conduct. Not infrequently the charges are sexual in nature; that conduct appears to draw the monstrous sentences.

(Id., at p. 601.) Justice Mosk referenced an unpublished Oklahoma opinion in which a sentence of 30,000 years was upheld without comment; the dissent objected, calling the sentence A>shocking and absurd=,@ and calling for appellate courts to implement A>an honest system of imprisonment. If we don=t, sentence Ainflation@ will make a mockery of us all.=@ (Ibid., quoting Robinson v. State (Oka.Crim.App. Apr. 1, 1996) F94-1377.) For his part, Justice Mosk advised the maximum sentence ought be life imprisonment, a sentence Aa defendant is able to serve.@ In those egregious cases where there are Aexceptionally numerous victims,@ the maximum might be life without possibility of parole. (Id., at p. 602; c.f., O=Neil v. Vermont (1892) 144 U.S. 323, 340 [36 L.Ed. 450, 12 S.Ct. 693] (dis. opn. by Field, J.) [AThe State may, indeed, make the drinking of one drop of liquor an offence to be punished by imprisonment, but it would be an unheard-of cruelty if it should count the drops in a single glass and make thereby a thousand offences, and thus extend the punishment for drinking the single glass of liquor to an imprisonment of almost infinite duration.@].)

There are other cases where defendants have been sentenced to millennia, but not very many, and not very logically: In People v. Byrd (2001) 89 Cal.App.4th 1373, the defendant was sentenced to 115 years, plus 444-years-to-life; citing its previous decision in People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [375-years-to-life plus 53 years affirmed], the Third District upheld the sentence, finding it Aimmaterial@ that the defendant could not serve the sentence, for Ain practical effect, he is no different position that a defendant who has received a sentence of life without possibility of parole.@ According to the court, as life without possibility of parole is not cruel and usual punishment, neither does multi-century sentencing; moreover, such a sentence Aserves valid peneological purposes: it unmistakably reflects society=s condemnation of defendant=s conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future.@ (Id., at p. 1383.)

The defendant in Callins v. State (Okla. 1972) 500 P.2d 1333, was convicted of first degree rape; under the indeterminate sentencing scheme then in place, the jury sentenced him to 1,500 years imprisonment. The Court of Appeal upheld the sentence, citing the imposition of a 1,000 year term for rape in Fields v. Phillips (Okla. 1972) 501 P.2d 1390, cert. den. 532 U.S. 969; in Fields, the majority rejected an Eighth Amendment challenge and a separation of powers challenge, stating Athe practicalities of life compel us to observe that a sentence of 1,000 years is, for all intents and purposes, a life sentence,@ such a sentence did not violate the province of the executive branch by mooting the possibility of parole as the sentence was within the jury=s authority to give, and Ait could be argued that a jury panel could assess a term of 25,000 or a million years, if they choose to do so.@ (Id., at p. 1393; compare, Sills v. Texas (1971) 472 S.W.2d 119, 120 [AIt is suggested that a jury could give a sentence of 25,000 or 1,000,000 years if they chose to do so. It is further suggested that 1,000 years or a million years is an impossible punishment and should not be assessed. It does not change the rule that a person can be considered for parole when he has received credit for 20 years or one-third of his sentence, whichever is the less.@].) In the majority=s opinion, the aggravated term must have been due to Asome additional consideration... such as an attempt to indicate outrage at the facts and circumstances of the case and in some way to serve as a deterrent.@ (Fields v. Phillips, supra, 501 P.2d at p. 1394.) The victim in Fields was Araped successively by [] three Negroes,@ including the two defendants. (Id., at p. 1391.) One justice had concurred in Fields, simply noting the sentence should be modified to life imprisonment. (Id., at pp. 1395.)
This concurring justice subsequently dissented in Callins, preliminarily noting he Adid not see the relevancy of affirming a sentence of either 1,000 years, or one of 1,500 years,@ and that if the practicalities of life mean that a 1,000 year sentence is a life sentence, then Athis Court should act within its wisdom and cause the sentence to reflect >life imprisonment.=@ (Callins v. State, supra, 500 P.2d at p. 1336, opn. of Brett, J..) Though the dissent agreed with the jury the facts of the case would provoke anyone to wish the defendant permanently removed from society, Ait is the duty of the appellate courts to apply the law with reason, and not to be guided by emotions, as the jury was.@ (Ibid.) Finally:

[W]hen trial courts permit and accept jury verdicts of excessive punishment... it makes a mockery of the jury system... and, further, when appellate courts approve such ridiculous verdicts they only magnify that mockery and perpetuate the travesty of justice. It should be remembered, a just society is not judged by how it treats its best citizens, but instead, how it treats its worst citizens. In the instant case there is no possible way for the sentence to be satisfied, unless upon defendant=s death his embalmed body is placed upon the cell bunk for the balance of the 1,500 years. (Callins v. State, supra, 500 P.2d at p. 1337.)

Rather than revisit the standard comparison between a sentence for murder and an unusually lengthy sentence, which seems to have lost whatever cache it once had, it is perhaps more useful to consider the minimizing effect of millennial sentencing. For what Justice Mosk presaged has come to pass: as sentences of hundreds of years become commonplace, the thousand year sentence is born: as the thousand year sentence makes its advent, the life term (or the 25-to-life term) once considered a serious penalty, reserved for the worst offenders, becomes an average sentence, an existential midterm. (Compare, People v. Lewis (2004) 120 Cal.App.4th 837, 856-857 [25-year-to-life term for section 273(a)(b) violation not cruel and usual given amount of force and anger required to produce four-month old=s fatal head injuries].) The State=s legitimate peneological purpose of wanting to incapacitate recidivists does not, in turn, legitimize a thousand-year sentence, or end-stop the question whether that sentence is cruel and unusual. The grossly inflated sentence in this case cannot be reconciled with any concept of real time or real humanity, and thus, this is the exceptional sentence. (Lockyer v. Andrade, supra, 538 U.S. at p. 77; c.f., United States v. Bajakjian (1998) 524 U.S. 321, 342-343 [141 L.Ed.2d 314, 118 S.Ct. 2028].) And this sentence is absurd, for:

If, for all practical purposes, a millennial sentence is life imprisonment, then it is no more practically incapacitating than life imprisonment. If, for all practical purposes, a millennial sentence Aunmistakably reflects society=s condemnation@ of the conduct punished, then it is no greater condemnation than life imprisonment. If, for all practical purposes, it provides a Astrong psychological deterrent@ to those who would commit similar offenses, it can provide no more or less a deterrent than life imprisonment B unless one is willing to hang the skeleton.

Again, Athe primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings.@ (Furman v. Georgia, supra, 408 U.S. at p. 271 (conc. opn. by Brennan, J.).) The extreme severity of a punishment Amay reflect the attitude that the person punished is not entitled to recognition as a fellow human being,@ such as found in torture, wherein the man is refused human status, and in criminalizing disease, where the man is treated as Aa diseased thing rather than as a sick human being,@ and, Aof course, a punishment may be degrading simply by reason of its enormity. A prime example is expatriation, >a punishment more primitive than torture,= for it necessarily involves denial by society of the individual=s existence as a member of the human community.@ (Id., at pp. 273-274, quoting Trop v. Dulles, supra, 356 U.S. at 101, emphasis added.) The court here frankly characterized appellant as Ainhuman,@ Aa monster.@ (RT 2386-2387) But appellant is a human being, with a human being=s susceptibility to the limits of mortality. Just as you can only kill a man once, you can only imprison him for life: to fain imprison him for the ages is grossly disproportionate to any offense and grossly disproportionate to any civilized sense of inalienable human worth. (People v. Cox (2003) 30 Cal.4th 916, 970; People v. Dillon, supra, 34 Cal.3d at p. 487, fn. 38.) Appellant=s sentence should be modified to life imprisonment. (U.S. Const., Eighth Amend.)

The Court noted that the possibility of commutation did not mitigate the punishment, as it was Anothing more than a hope for >an ad hoc exercise of clemency=.... Recognition of such a bare possibility would make judicial review under the Eighth Amendment meaningless.@ (Id., at p. 303.)

Justice Scalia, who delivered the opinion of the Court only with regards to the merits of petitioner=s TA \s "United States v. Bland (9th Cir. 1992) 961 F.2d." \c 1Eighth Amendment claim, and Chief Justice Rehnquist, who joined the entirety of Justice Scalia=s opinion. (Id., at p. 961.) Under Justice Scalia=s analysis, proportionality was only an Aaspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law.@ (Id., at p. 994.)

Justices White, Blackmun and Stevens. (Id., at p. 1009.) Justice Marshall filed a separate dissent concurring with Justice White=s dissent while asserting Justice Marshall=s continuing opposition to the death penalty. (Harmelin v. Michigan, supra, 501 U.S. at p. 1027.) Justices Stevens, with Justice Blackmun joining, filed an additional dissenting opinion underscoring that the penalty involved was A>cruel and unusual in the same way that being struck by lightning is cruel and unusual.=@ (Id., at p. 1028-1029, quoting Furman v. Georgia (1972) 408 U.S. 238, 309 (conc. opn. of Stewart, J.).)

Justices Kennedy, O=Connor and Souter.

Justices Scalia and Thomas concurred; in his concurrence, Justice Scalia reiterated his belief the Eighth Amendment cannot apply to non-capital offenses as the prohibition is only applicable to A>certain modes of punishment....=@ If the peneological purpose of the strike statute is incapacitation, and incapacitation is a legitimate peneological purpose, any further consideration of the State=s interest in imposing such a severe sentence was irrelevant on the question of proportionality: in other words, if a State wants to lock someone up for life for stealing a set of golf clubs, A[p]erhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is not the unstated proposition that all punishment should be reasonably proportionate to the gravity of the offence, but rather the unstated preposition that all punishment should reasonably pursue the multiple purposes of the criminal law.@ (Ewing v. California, supra, 538 U.S. at pp. 31-32, quoting Harmelin v. Michigan, supra, 501 U.S. at p. 985.) Justice Thomas simply stated the Eighth Amendment has no proportionality guarantee. (Ewing v. California, supra, 538 U.S. at p. 32.)

It is prefatorially principled by the following four tenets: A>the primacy of the legislature, the variety of legitimate peneological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors.=@ (Ewing v. California, supra, 538 U.S. at p. 23, quoting Harmelin v. Michigan, supra, 501 U.S. at p. 1001.)

While acknowledging the plurality=s emphasis on the Ararity@ of such a finding, the dissent found this to be one of those rare instances based on Athree-kinds of sentence-related characteristics,@ specifically, the length of the term Ain real time, i.e., the time that the offender is likely actually to spend in prison@; the criminal conduct involved in the current offense, and the offender=s criminal history. Here, the term was at least 25 years, the conduct nonviolent, and the history nondeterminitive: A>no penalty is per se constitutional.=@ (Ewing v. California, supra, 538 U.S. at pp. 38-41, quoting Harmelin v. Michigan, supra, 501 U.S. at p. 1001; c.f., Lockyer v. Andrade (2003) 538 U.S. 63, 77 [plurality opinion upholding 25-year-to-life strikes term for shoplifting: AThe gross disproportionality principle reserves a constitutional violation for only the extraordinary case.@].)

There was a five-year minimum, but no fixed maximum term for first degree rape. (Fields v. Phillips, supra, 501 P.2d at p. 1393, citing 21 O.S. 1971, ' 1115.)
By way of comparison, it appears appellant would have to serve 751 years before being eligible for parole. (Pen. Code ' 1170.12(a)(7); TA \s "In re Cervera (2001) 24 Cal.4th 1073" \c 2 \l "In re Cervera (2001) 24 Cal.4th 1073"In re Cervera (2001) 24 Cal.4th 1073, 1076; compare, TA \s "18" \c 0Rummel v. Estelle, supra, 445 U.S. at p. 267 [defendant eligible for parole in 12 years]; TA \s "18" \c 0Solem v. Helm, supra, 463 U.S. at pp. 282-283 [defendant not eligible for parole]; TA \s "18" \c 0Harmelin v. Michigan, supra, 501 U.S. at p. 961 [defendant not eligible for parole].)
As put by the Court: AThe very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.@ Judicial enforcement of the Clause, then, cannot be evaded by invoking the obvious truth that legislatures have the power to proscribe punishments for crimes. That is precisely the reason the Clause appears in the Bill of Rights..... we must not, in the guise of >judicial restraint,= abdicate our fundamental responsibility to enforce the Bill of Rights. Were we to do so... [t]he Cruel and Unusual Punishments Clause would become, in short, Alittle more than good advice.@ (Trop v. Dulles, supra, 356 U.S. at 104.)

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