P. v. Carmony

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Filed 2/28/03 P. v. Carmony CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
THE PEOPLE,
Plaintiff and Respondent,
v.
KEITH ISHMEAL CARMONY,
Defendant and Appellant.
C038802
(Super. Ct. No.
00F856)
Defendant Keith Ishmeal Carmony pleaded guilty to failure
to register as a sex offender (Pen. Code, § 290, subd. (g)(2))1
and admitted three prior strikes under section 1170.12 (the
Three Strikes law) and a prior prison term enhancement (§ 667.5,
1 Further undesignated section references are to the Penal
Code.

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subd. (b)). The trial court sentenced him to state prison for
an aggregate term of 26 years to life.
On appeal, defendant claims the trial court abused its
discretion by declining to grant Romero2 relief and by sentencing
him as a third-strike offender for failing to confirm the
accurate information already provided to law enforcement with
respect to defendant’s registration as a sex offender. We agree
that under the particular circumstances of this case, the trial
court erred by imposing the indeterminate term reserved for
third-strike offenders. Accordingly, we shall remand the matter
to the trial court for resentencing. In light of our decision,
it is unnecessary to directly address defendant’s additional
argument that his current sentence is unconstitutional.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Criminal Record
At the outset, it must be acknowledged that defendant’s
criminal record is serious. Defendant’s prior strike offenses
stemmed from a 1983 conviction for oral copulation by force or
fear, or with a minor under age 14 (§ 288a, subd. (c) [see
Stats. 1982, ch. 1111, § 5])3 and a 1993 conviction for two
counts of assault with a deadly weapon or by means of force
likely to produce great bodily injury (§ 245 (a)(1)). According
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3 The charging document refers to the date of conviction for
the offense as April 1980, but the probation report indicates it
was in 1983.

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to information in the probation report, the 1983 conviction
arose from an incident in which defendant became angry with his
girlfriend, picked her 9-year-old daughter up from school, and
sexually assaulted the girl. The 1993 offenses arose from
separate incidents in which defendant assaulted two girlfriends.
In one incident, defendant punched and kicked the pregnant
victim multiple times, ultimately causing a miscarriage. In the
other, defendant pushed and punched the victim, then cut her
hand with a kitchen knife.
Defendant’s criminal record includes other convictions.
Defendant was convicted of second degree burglary in 1977 and
1978 (§ 459), petty theft with a prior in 1985 (§ 666),
violations of section 148 in 1988 and 1991, driving under the
influence (DUI) in 1988 and another DUI, with a prior, in 1992
(Veh. Code, § 23152, subd. (a)). In 1990, defendant was
convicted of a trespassing offense (§ 602, subd. (l)), petty
theft (§ 488) and failure to register as a sex offender (§ 290).
In 1997, he was convicted of another registration violation
under section 290 and was sentenced to state prison for 32
months. He committed several parole violations in the 1980s and
1990s, including violations unrelated to the commission of new
offenses.
B. Background and Current Offense
Defendant was married in 1999. He was 40 years old at the
time of the current offense, which was committed that same year.
He had a history of drug and alcohol abuse, and his parole

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officer indicated he became violent when he was under the
influence. Defendant himself reported that his prior criminal
conduct and parole violations were related to his use of
alcohol, and he admitted to also using drugs. Defendant
attended Alcoholic’s Anonymous meetings for a period of time
around the time of the current offense, but he committed a
parole violation based on the use of alcohol while the instant
case was pending.
His work history was sporadic due in part to his repeated
incarceration. However, the officer who prepared the probation
report noted: “[O]n his behalf, [defendant] was acting in a
responsible manner by maintaining a residence, seeking job
training and placement, and becoming employed” before his recent
period of incarceration.
The instant case arose because defendant was required to
register as a sex offender. Although he was convicted of
registration violations in 1990 and 1997, defendant did comply
with the registration obligation by registering with the Redding
Police Department on several occasions in 1995, 1996, 1998, and
1999. In fact, defendant registered on September 16, 1999,
after being released on parole, and then again on September 23,
1999, to indicate his new address. Thus, defendant registered
only one month before the current violation arose.
The current violation arose after defendant failed to
update his registration within five working days of his
birthday, on October 22, 1999. His parole officer had

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purportedly reminded him of the registration requirement, and
defendant had also received forms indicating that requirement.
However, defendant did not change his address or conceal his
whereabouts, and authorities were able to locate him without
difficulty at the address where he previously registered. On
November 23, 1999, he was arrested by his parole officer.
C. Sentencing
The plea agreement in this case contemplated that the trial
court would determine whether to dismiss prior strikes. In
fact, the probation department was directed to specifically
address the impact of People v. Cluff (2001) 87 Cal.App.4th 991
(Cluff) on that decision. In a written motion he filed
requesting the trial court to dismiss his prior strikes,
defendant also relied heavily on Cluff.
At sentencing, the trial court found Cluff, supra, 87
Cal.App.4th 991, to be distinguishable and declined to dismiss
any prior strikes. The court emphasized that defendant’s record
was more serious than Cluff’s and, unlike Cluff, defendant did
not have good prospects because he had not established a work
record “of any length because he goes back in to prison [at]
nearly every opportunity.” The trial court also remarked that
the court in Cluff had emphasized, “not only was the case
technical, but there was some argument to be made that Mr. Cluff
did not realize he was to register.” The court contrasted
defendant’s case, emphasizing he had “a prior conviction for
failure to register” and “was instructed by his parole officer

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to go register.”4 The court concluded that defendant “is
certainly an individual who does fall, as [the prosecutor] says,
within the spirit of the 25 years to life, the 3-strikes law.”
The court emphasized: “I believe that would be overreaching if
I were to strike any of them in light of all that I’ve said.”
DISCUSSION
I. Abuse of Discretion
Defendant claims the trial court abused its discretion by
declining to grant Romero relief and by sentencing him as a
third-strike offender.
Dismissal of a strike is a departure from the sentencing
norm. (See People v. Gillispie (1997) 60 Cal.App.4th 429, 434;
see also § 1385.) In reviewing the trial court’s decision, we
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.” (People v. Williams (1998) 17
Cal.4th 148, 161.)
4 Although defendant offered an explanation for his failure to
update his registration, we defer to the trial court’s findings
indicating defendant knew he was required to do so. Those
findings are adequately supported by the record.

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Although ordinarily reversal is not warranted unless an
error affirmatively appears on the record, we must determine
whether the trial court’s ultimate ruling constitutes an abuse
of discretion. (See People v. Myers (1999) 69 Cal.App.4th 305,
309-310; People v. Gillispie, supra, 60 Cal.App.4th at p. 434,
but see People v. Benevides (1998) 64 Cal.App.4th 728, 730
[indicating summary denial of appellate relief would generally
be appropriate if the record shows the trial court was aware of
its discretion].)5 This standard is deferential, but it is not
empty. Although variously phrased in different decisions, it
asks in substance whether the trial court’s ruling “‘falls
outside the bounds of reason’ under the applicable law and the
relevant facts [Citations].” (People v. Williams, supra, 17
Cal.4th at p. 162.) “‘[A]ll exercises of legal discretion must
be grounded in reasoned judgment and guided by legal principles
and policies appropriate to the particular matter at issue.’
[Citation.]” (People v. Superior Court (Alvarez) (1997) 14
5 The People cite People v. Gillispie, supra, 60 Cal.App.4th
at page 434, to support their claim that “[a] trial judge’s
imposition of the normal sentence is properly reviewable only to
determine whether the trial judge misunderstood the scope of his
discretion in fact or law . . . .” But the court’s opinion
emphasizes that the record may also show “that under the
peculiar circumstance of the case, the sentencing norms produced
an ‘arbitrary, capricious or patently absurd’ result.” (Ibid.)
Further, we reject the People’s suggestion that defendant lacks
standing for meaningful appellate review. (Cf. id. at pp. 433-
434, fn. 2.)

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Cal.4th 968, 977; People v. Stone (1999) 75 Cal.App.4th 707,
716.)
Here, the trial court acted unreasonably in declining to
dismiss any of defendant’s prior strikes. The rationale
underlying the indeterminate sentence reserved for recidivist
offenders is not served here, where the current offense is a
violation of the law that bears little indication of recidivist
criminal tendencies of the kind to which the three strikes law
is directed. Defendant clearly falls outside the spirit of the
three strikes law, at least with respect to the 25-year-to-life
sentence imposed for the current offense.
The facts underlying commission of the current offense are
in fact analogous to those presented in Cluff, supra, 87
Cal.App.4th 991. In that case, the appellate court remanded the
matter for a new Romero hearing after the defendant (Cluff) was
initially sentenced to 25 years to life under the three strikes
law. (Id. at pp. 994, 1005.) Cluff was convicted of failing to
register as a sex offender because he failed to annually update
his registration within five days of his birthday in 1996 and
1997. (Id. at pp. 994-996.) Like defendant, Cluff had
previously registered his address. (Id. at pp. 994-995.) In
October 1997, police were able to contact Cluff at his last
registered address, and he subsequently reported to the police
station for a scheduled appointment. (Id. at pp. 995-996.)
To the extent the trial court attempted to distinguish
Cluff based on the arguably unintentional nature of the

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violation in that case, the court erred. It is true the
appellate court in Cluff emphasized facts that might suggest the
violation was unintentional and noted that the trial court had
refrained from determining whether it was negligent or
intentional until the sentencing hearing. (See Cluff, supra, 87
Cal.App.4th at pp. 995-996, 1002-1003.) But the appellate court
emphasized, “We accept the trial court’s finding that the
violation was intentional (as we would have if the court had
made that finding at trial); the evidence that Cluff had notice
of the new requirement [to confirm his registration] supports
that determination.” (Id. at p. 1003.) The appellate court
nevertheless found no basis to conclude Cluff was attempting “to
obfuscate his residence or escape the reach of law enforcement.”
(Ibid.) The same could be said in the instant case.
Considering the variety of circumstances that can lead to a
felony violation of section 290, the instant case must be
characterized as “the most technical violation of the section
290 registration requirement we have seen.” (Cluff, supra, 87
Cal.App.4th at p. 994.) In fact, defendant’s failure to update
his registration is arguably less serious than Cluff’s since
defendant had registered very recently and was arrested only one
month after he should have registered. Under the circumstances,
“[t]he purpose of the registration statute was not undermined by
[defendant’s] failure to annually update his registration.”
(Id. at p. 1002.) Law enforcement (and the public) had already
been provided with recent, accurate information on defendant’s

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whereabouts and could take protective measures if need be, such
as surveillance or quick apprehension of defendant. (See In re
Luisa Z. (2000) 78 Cal.App.4th 978, 982 [describing purpose of
registration]; People v. Castellanos (1999) 21 Cal.4th 785, 796
(maj. opn. of George, C. J.) [same].)
Cluff can, of course, be distinguished based on other
pertinent factors such as the defendant’s record, character, and
prospects. Further, the appellate court’s decision to reverse
was based on its conclusion that the trial court was wrong to
make its “critical finding” of obfuscation. (Cluff, supra, 87
Cal.App.4th at pp. 1002-1004.) The record in the instant case
does not, however, indicate that the trial court labored under
any particular misconceptions in this respect. But such factors
are not dispositive. Indeed, the court in Cluff implied it
would be entirely improper to sentence Cluff as a third-strike
offender, based in large part on the facts underlying commission
of the current offense. The court commented, “[F]or the
guidance of the trial court on remand, we note that the severe
penalty imposed on Cluff appears disproportionate by any
measure. The nature of Cluff’s current offense did not
demonstrate recidivist tendencies toward child molestation.
While there is no requirement that a third strike be a serious
or violent felony, neither the Legislature nor the voters
intended the Three Strikes law to be used as a nuisance statute
to rid society forever of persons who fail to meet technical

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requirements to confirm an accurate registration.” (Cluff,
supra, 87 Cal.App.4th at p. 1004.)
Although this quotation is dictum, the appellate court’s
reasoning is persuasive. The People criticize Cluff, supra, 87
Cal.App.4th 991, asserting that defendant’s conviction for a
felony brings him within the spirit of the three strikes law and
that there must be something about defendant’s “nature” to bring
him outside the spirit of the law. But the three strikes law is
designed to punish recidivist conduct, and the nature and
circumstances of the current offense are important
considerations in deciding whether a defendant falls outside the
spirit of the law. Here, commission of the current offense
bears little indication that defendant has recidivist tendencies
to commit other offenses, violent or otherwise. Defendant’s
violation would not be a crime at all if not for the strict
annual registration requirement, which applies even though
defendant had not moved and law enforcement knew it, and
defendant had recently updated his registration. The instant
violation was passive and without practical impact in a way that
many misdemeanor offenses and minor drug crimes are not. There
was simply no harm, even indirect harm to the public, that
resulted from defendant’s inaction since defendant had
previously registered as a sex offender and provided accurate
information to authorities. Nor is there any evidence defendant
was planning on moving or otherwise evading the purpose
underlying the registration law.

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Accordingly, the instant case presents the rare situation
where, based on the nature and circumstances of the present
offense, it must be concluded that defendant falls outside the
spirit of the three strikes law at least with respect to a
sentence of 25 years to life. That is not to say, however, that
defendant falls entirely outside the spirit of the law, in light
of his current offense, his prior record, and other relevant
considerations such as his background, character, and prospects.
At resentencing the trial court may wish to consider dismissing
two prior strikes and sentencing defendant as a second-strike
offender. Doubling of the upper term would amount to a prison
sentence of seven years (including the one-year prior prison
term enhancement). (See §§ 290, subd. (g)(2), 667.5, subd.
(b).) That determination is best left to the informed
discretion of the court.
Our dissenting colleague goes on at great length that
defendant’s felony offense for failure to register his address a
second time within a month is within the letter of the three
strikes law. It obviously is. That is not the issue.
The question we must ask, as we note, is whether the trial
court should have stricken “a prior serious and/or violent
felony conviction . . . ‘in furtherance of justice’ pursuant to
Penal Code section 1385(a) . . . .” (People v. Williams, supra,
17 Cal.4th at p. 161.) This requires consideration inter alia
“whether, in light of [defendant’s] present [felony] and prior
serious and/or violent felony convictions . . . the defendant

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may be deemed outside the scheme’s spirit . . . and hence should
be treated as though he had not previously been convicted of one
or more serious and/or violent felonies.” (Ibid.)
This manifestly directs us to consider the nature of
defendant’s present felony conviction in relation to his past
criminal conduct, i.e., whether defendant’s failure to register
his present address a second time with the police within one
month without moving or otherwise preventing the police from
knowing his whereabouts has anything to do with his prior
criminal conduct. It does not for the obvious reason the police
were not prevented by defendant’s failure from accomplishing any
reasonable objective of the registration law.
Our dissenting colleague goes as far as to suggest,
“Exempting the knowing and willful failure to register annually
as a sex offender from the scope of the Three Strikes law would
exempt a type of felony and thereby rewrite the statutory
scheme.” (Diss. Opn. at p. 2.) In so commenting, he implies
that the nature and circumstances of defendant’s current offense
cannot be dispositive in deciding to dismiss a strike under
section 1385, at least in cases in which the defendant’s prior
record is serious and his background and prospects questionable.
But our state Supreme Court has indicated that the nature and
circumstances of defendant’s present offense are always relevant
considerations in a decision under section 1385. We hold no
more than that these considerations are dispositive in this
particular case.

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Our dissenting colleague fails to tell us in what way,
other than the bare fact of defendant’s felony conviction,
defendant’s conduct has anything to do with the “spirit” of the
three strikes law. Throughout, he simply has substituted the
letter for the spirit of the law. This, our Supreme Court has
prohibited us from doing. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
Our holding allows the trial court to retain one prior
serious felony conviction and impose a seven-year prison
sentence. This result is manifestly in “furtherance of
justice.”
DISPOSITION
The judgment is reversed and the matter is remanded to the
trial court for resentencing in accordance with this opinion.
BLEASE , Acting P. J.
I concur:
NICHOLSON , J.

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KOLKEY, J.
I respectfully dissent.
The whole purpose of the Three Strikes law is to “ensure
longer prison sentences” for those criminals with a history of
serious or violent felonies, who commit yet another felony (Pen.
Code, § 667, subd. (b); italics added) and to limit judicial
discretion in sentencing repeat offenders. (People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 528 (hereafter Romero).)
Defendant’s lengthy criminal record of 14 crimes and 10 parole
violations over 25 years, including his forcible sexual assault
of a 9-year-old girl, his violent assault of a pregnant
girlfriend (which caused a miscarriage), and his assault of yet
another girlfriend, whose hand he cut with a kitchen knife,
makes him precisely the type of career criminal that the Three
Strikes law was meant to attack. (See People v. Strong (2001)
87 Cal.App.4th 328, 332.) His “third” strike -- a knowing
failure to register as a sex offender -- followed two previous
failures to register. The trial court cannot be deemed to have
abused its discretion -- that is, acted beyond the bounds of
reason (People v. Garcia (1999) 20 Cal.4th 490, 503) -- by
following a sentencing scheme that was designed to restrict the
discretion to depart from it when sentencing a career criminal.
The majority’s contrary conclusion is premised on its view
that the “third” strike here, based on defendant’s knowing
failure to register as a sex offender, places him outside the

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spirit of the Three Strikes law, on the ground that “the current
offense bears little indication that defendant has recidivist
tendencies to commit other offenses.” (Maj. opn. ante, at p.
11.) The problem with this reasoning is that the Three Strikes
law provides that “any felony triggers a longer sentence under
the Three Strikes law as long as the defendant has sustained at
least one strike.” (People v. Strong, supra, 87 Cal.App.4th at
p. 344.) Exempting the knowing and willful failure to register
annually as a sex offender from the scope of the Three Strikes
law would exempt a type of felony and thereby rewrite the
statutory scheme. But “[t]his court has no power to rewrite the
statute so as to make it conform to a presumed intention which
is not expressed.” (Seaboard Acceptance Corp. v. Shay (1931)
214 Cal. 361, 365.)
Moreover, it is difficult to reconcile the majority’s claim
that “the current offense bears little indication that defendant
has recidivist tendencies” (Maj. opn. ante, at p. 11) with the
fact that the current offense is his third willful failure to
comply with his registration obligations.
Finally, even if a trial court could lawfully conclude that
the commission of particular types of felonies should not
trigger the Three Strikes law, an appellate court may not
reverse a trial court’s exercise of discretion to instead follow
the statutory scheme unless “the trial court’s decision was
irrational or arbitrary.” (People v. Myers (1999)
69 Cal.App.4th 305, 309-310.) When reviewing a trial court’s

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exercise of discretion, the California Supreme Court has
cautioned: “‘[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.” [Citations.]’
[Citation.]” (People v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 978.) Accordingly, in order to reverse the
trial court in this case, we must not only find that it is
appropriate to exempt a particular type of felony from the Three
Strikes law (which it is not), but also find that no reasonable
person could deem defendant to fall wholly within the letter and
spirit of the Three Strikes law, despite his lengthy and
sometimes violent criminal record of 14 crimes and 10 parole
violations and a present felony that is his third violation of
the registration requirements. Since we cannot properly do so,
I respectfully dissent.
I.
“[T]he Three Strikes law 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.’”
(People v. Strong, supra, 87 Cal.App.4th at pp. 337-338.) As

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our Supreme Court observed in Romero, supra, 13 Cal.4th at page
528, “[p]lainly the Three Strikes initiative, as well as the
legislative act embodying its terms, was intended to restrict
courts’ discretion in sentencing repeat offenders.”
In People v. Williams (1998) 17 Cal.4th 148, 161, the
California Supreme Court ruled that a court could only dismiss a
strike -- and thus reduce the sentence mandated by the Three
Strikes law -- if it found the defendant to be outside the
spirit of the Three Strikes law, in whole or in part:
“We therefore believe that, in 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[, subdivision] (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. If it
is striking or vacating an allegation or finding, it must set
forth its reasons in an order entered on the minutes, and if it
is reviewing the striking or vacating of such allegation or
finding, it must pass on the reasons so set forth.”

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Conversely, where the trial court has refused to depart
from the statutory scheme, it need not articulate any reasons
(People v. Gillispie (1997) 60 Cal.App.4th 429, 433), and we
reverse only where “the trial court’s decision was irrational or
arbitrary. It is not enough to show that reasonable people
might disagree about whether to strike one or more of his prior
convictions. Where 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.” (People v. Myers, supra, 69 Cal.App.4th at
pp. 309-310.)
“‘Although variously phrased in various decisions
[citation], [the abuse of discretion standard] asks in substance
whether the ruling in question “falls outside the bounds of
reason” under the applicable law and the relevant facts
[citations].’” (People v. Garcia, supra, 20 Cal.4th at p. 503,
quoting People v. Williams, supra, 17 Cal.4th at p. 162.)
Accordingly, in this case, in order to reverse the trial
court’s decision to follow the sentencing norm established by
the Three Strikes law, we must find that a determination that
the defendant falls within the spirit of the Three Strikes law
“‘“falls outside the bounds of reason” under the applicable law
and the relevant facts [citations].’” (People v. Garcia, supra,
20 Cal.4th at page 503.) And under the Supreme Court’s decision
in People v. Williams, supra, 17 Cal.4th at page 161, that

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requires that no reasonable person could deem the defendant to
fall wholly within the letter and spirit of the Three Strikes
law, in light of the nature and circumstances of his present
felony and prior serious and/or violent felony convictions and
the particulars of his background, character, and prospects. To
this test, I now turn.
II.
In determining what constitutes circumstances that take a
defendant outside the spirit of the Three Strikes law, in whole
or in part, we concluded in People v. Strong, supra,
87 Cal.App.4th at p. 338, that “extraordinary must the
circumstance be 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.” After all, “longer sentences for career criminals who
commit at least one serious or violent felony certainly goes to
the heart of the statute’s purpose -- or spirit.” (Ibid.)
Defendant is the very type of career criminal that the
Three Strikes law was meant to address. (People v. Strong,
supra, 87 Cal.App.4th at pp. 331-332; People v. Gaston (1999)
74 Cal.App.4th 310, 312.) As the majority acknowledges,
defendant’s criminal record is “serious.” (Maj. opn. ante, at
p. 2.) Defendant has a criminal record spanning over 25 years
comprised of 14 crimes and 10 parole violations, not including
the current crime and parole violation based thereon. His

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record includes not only three violent assaults but two second
degree burglaries, two petty thefts, two convictions for driving
under the influence, trespassing, and two prior failures to
register as a sex offender, one in 1990 and one in 1997, for
which he was sentenced to 32 months in prison. (Maj. opn. ante,
at p. 3.) Defendant was still on parole from his last failure
to register when he violated the registration requirement once
again: his current offense. Indeed, defendant even sustained
another parole violation for consuming alcohol while this matter
was pending in the trial court. The Three Strikes law is
designed to impose a lengthy sentence on such defendants once he
(or she) commits one more felony, regardless of its type.
A. Prior Felonies
In determining whether a defendant falls outside the spirit
of the Three Strikes law, one of the circumstances to consider
under People v. Williams, supra, 17 Cal.4th at page 161, is
defendant’s prior serious or violent felonies.
The defendant here had three prior serious or violent
felonies, comprised of sexual assault in 1983 of a 9-year-old
girl (described as rape in the probation report), an assault by
means of force likely to produce great bodily injury on a
pregnant girlfriend in 1993 (causing a miscarriage), and another
assault in 1993 with a deadly weapon upon another girlfriend
(cutting her hand with a kitchen knife so as to create a wound 3
inches in length and 1 inch deep).

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Defendant’s commission of yet a new felony brings him
within the letter of the Three Strikes law. (People v. Strong,
supra, 87 Cal.App.4th at pp. 337-338.) And while the 1983
assault might be deemed remote (but see People v. Strong, id.,
at p. 342), the two 1993 convictions are not: Defendant’s
release from prison from those convictions was followed by a
series of parole violations that returned him to prison until he
was released and thereafter convicted of a failure to register
as a sex offender in 1997. And he was on parole from that
conviction when he committed the instant felony. There is
absolutely nothing mitigating about his prior serious or violent
felonies that takes him outside the spirit of the Three Strikes
law.
B. Background, Character, and Prospects
The Supreme Court in People v. Williams, supra, 17 Cal.4th
at page 161, also instructed the courts to consider “the
particulars of [the defendant’s] background, character, and
prospects.”
The probation report here concludes that defendant’s
background and character do not support striking his priors:
“Since early adulthood, the defendant has been involved in
numerous criminal offense and parole violations. Additionally,
the defendant was on parole at the time of the current offense,
and incurred a separate and unrelated parole violation while
pending Court in this matter.” He also has had “a lengthy
history of substance abuse,” “his cooperation with parole has

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been superficial and sometimes openly defiant,” and his parole
agent believes that he has “a great potential for violence.”
As for his prospects, the majority notes that his work
history is sporadic owing in part to his repeated
incarcerations. (Maj. opn. ante, at p. 4.)
C. Current Felony
This leaves only the circumstances of defendant’s current
felony as a basis for finding that he falls outside the spirit
of the Three Strikes law.
The Three Strikes law was expressly intended “to ensure
longer prison sentences . . . for those who commit a felony” as
long as they were previously convicted of at least one strike.
(§ 667, subd. (b); Ballot Pamp., Gen. Elec. (Nov. 8, 1994) Prop.
184: Text of Proposed Law, p. 64.) Thus, we must consider
whether there are extenuating circumstances about this
particular felony that takes defendant outside the spirit of the
Three Strikes law.
The majority contends: “[The] commission of the current
offense bears little indication that defendant has recidivist
tendencies to commit other offenses, violent or otherwise.
Defendant’s violation would not be a crime at all if not for the
strict annual registration requirement, which applies even
though defendant had not moved . . . , and defendant had
recently updated his registration. The instant violation was
passive and without practical impact in a way that many

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misdemeanor offenses and minor drug crimes are not. There was
simply no harm, even indirect harm to the public, that resulted
from defendant’s inaction since defendant had previously
registered as a sex offender and provided accurate information
to authorities.” (Maj. opn. ante, at p. 11.)
Careful scrutiny of these arguments reveals that they do no
more than assert that the Three Strikes law should be rewritten
to exclude certain types of felonies from its coverage. That,
however, is the Legislature’s province, not ours.
First, the majority claims that the “commission of the
current offense bears little indication that defendant has
recidivist tendencies to commit other offenses, violent or
otherwise.” (Maj. opn. ante, at p. 11.) But this is no more
than a contention that the failure to register annually as a sex
offender should not trigger the Three Strikes law because such a
violation of the law does not show that the defendant is a
recidivist. However, as noted, the Three Strikes law is
premised on the theory that every defendant with a qualifying
strike, who commits yet another felony, should be deemed a
recidivist and given a longer sentence. (People v. Strong,
supra, 87 Cal.App.4th at pp. 337-338; Pen. Code, §§ 667, subd.
(f)(1), 1170.12, subd. (d)(1).) Moreover, in this case, the
majority’s claim that the “commission of the current offense
bears little indication that defendant has recidivist
tendencies” (Maj. opn. ante, at p. 11) is a wee bit bold given
the fact that defendant’s current failure to register followed

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two previous failures to register -- and arose while defendant
was still on parole from his last failure to register. How many
times does a defendant with a prior qualifying strike have to
willfully fail to register before he qualifies as a recidivist?
The Legislature and the people of this State have answered that
question when they enacted the Three Strikes law. And we, as
courts, must respect that decision if we are to be faithful to
our limited constitutional role.
Second, the majority contends that “[d]efendant’s violation
would not be a crime at all if not for the strict annual
registration requirement, which applies even though defendant
had not moved . . . .” (Maj. opn. ante, at p. 11.) By that
logic, statutory rape and many other crimes would not be crimes
at all but for the fact that criminal statutes prohibit such
acts or omissions. Thus, the majority’s argument is simply a
disagreement with the legislative determination that the willful
failure of a sex offender to register annually, within five
working days of his or her birthday (Pen. Code, § 290, subd.
(a)(1)(D)), is a crime (id., § 290, subd. (g)(2)).
Third, the majority complains that the “instant violation
was passive and without practical impact.” (Maj. opn. ante, at
p. 11.) But the willful failure to register is, by its very
nature, passive. This, again, suggests a disagreement with the
Legislature’s determination to define, as a felony, the willful
failure to register, in those cases where, as here, the
obligation to register was based on a felony or the defendant

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was previously convicted of a failure to register. (Pen. Code,
§ 290, subd. (g)(2).) Likewise, the fact that the failure to
register will not have a practical impact where the defendant
has not changed address presents a mere disagreement that this
type of offense should be covered by the Three Strikes law.
After all, a different provision under Penal Code section 290
requires a sex offender to register whenever the offender
changes his or her residence. (Pen. Code, § 290, subd.
(a)(1)(A).) Thus, the annual registration requirement ought not
to normally result in a change of address, but is a prophylactic
measure designed to assure that persons convicted of specified
crimes are readily available for police surveillance at all
times. (See People v. Castellanos (1999) 21 Cal.4th 785, 790.)
Indeed, the failure of sex offenders to register, and the
concomitant inability of law enforcement to keep track of them,
is a growing national problem that certainly warrants separate
enforcement of this prophylactic measure. (See Murr, Holes in
the Safety Net (Feb. 24, 2003) Newsweek, at p. 40.)
Fourth, the majority claims that “[t]here was simply no
harm, even indirect harm to the public, that resulted from
defendant’s inaction since defendant had previously registered
as a sex offender and provided accurate information to
authorities.” (Maj. opn. ante, at p. 11.) But the mere fact
that defendant reported a change of address the month before
does not excuse his willful and knowing failure to register the
following month. Compliance with the law the prior month does

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not justify or soften a knowing failure to comply with the law
the next month.
This, of course, would be an entirely different case if the
defendant was unaware of the need to register after registering
a change of address the prior month. But the majority properly
defers to the trial court’s findings indicating that the
defendant knew that he was required to register but failed to do
so. (Maj. opn. ante, at p. 6, fn. 4.) Indeed, the probation
report notes that defendant’s parole agent spoke with him by
telephone on his birthday and reminded him that he had to update
his registration at that time. The majority cannot find
defendant outside the spirit of the Three Strikes law, in whole
or in part, by reason of the type of felony he committed without
rewriting the Three Strikes law to exclude certain felonies from
its reach. But, again, that is the Legislature’s province, not
ours.
In response to these points, the majority claims that I
“impl[y] that the nature and circumstances of defendant’s
current offense cannot be dispositive in deciding to dismiss a
strike under [Penal Code] section 1385 . . . ,” but that “our
state Supreme Court has indicated that the nature and
circumstances of defendant’s present offense are always relevant
considerations in a decision under section 1385.” (Maj. opn.
ante, at p. 13.)

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But our Supreme Court has never said that the nature of the
present felony is sufficient to take a defendant outside the
spirit of the Three Strikes law. Instead, in People v.
Williams, supra, 17 Cal.4th at page 161, our Supreme Court
stated that in ruling whether to strike a prior serious or
violent felony conviction, a court must consider a variety of
factors, including “the nature and circumstances of his present
felonies,” in determining whether “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.”
But rather than looking at all of the factors, as I have at
pages 7 to 9, ante, what the majority has done is only rely on
the nature of the current felony and has concluded that such a
felony does not warrant, in whole or in part, application of the
Three Strikes law, despite defendant’s serious record. By
relying only on the nature (and not the circumstances) of
defendant’s present felony -- and finding it wanting -- the
majority has exempted this type of felony from the Three Strikes
law. This effectively rewrites the law and cannot be a proper
interpretation of the test enunciated in People v. Williams,
supra, 17 Cal.4th at page 161.
Finally, the majority argues: “Our dissenting colleague
fails to tell us in what way, other than the bare fact of
defendant’s felony conviction, defendant’s conduct has anything
to do with the ‘spirit’ of the three strikes law. Throughout,

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he simply has substituted the letter for the spirit of the law.
This, our Supreme Court has prohibited us from doing.” (Maj.
opn. ante, at p. 14.)
The majority has it backwards. It is not my burden (or the
trial court’s) to show how a career criminal who falls within
the letter of the Three Strikes law also falls within its
spirit; that, after all, is the statutory scheme. (People v.
Strong, supra, 87 Cal.App.4th at pp. 337-338; People v.
Gillispie, supra, 60 Cal.App.4th at p. 433.) Instead, it is the
majority’s obligation to show how, “‘for articulable reasons
which can withstand scrutiny for abuse, this defendant should be
treated as though he actually fell outside the Three Strikes
scheme.’” (People v. Strong, supra, at p. 338.) And other than
the fact that the majority does not deem worthy of coverage by
the Three Strikes law the willful failure of a violent sex
offender to comply with the annual registration requirements, it
gives no reason.
In sum, the nature of defendant’s current felony, in and of
itself, cannot take him outside the Three Strikes law without
rewriting the Three Strikes law to exempt such felonies.
III.
Finally, the majority contends that the facts of this case
are “analogous to those presented” in People v. Cluff (2001)
87 Cal.App.4th 991 (Cluff). (Maj. opn. ante, at p.8.) It
argues that “defendant’s failure to update his registration is

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16
arguably less serious than Cluff’s since defendant had
registered very recently and was arrested only one month after
he should have registered.” (Maj. opn. ante, at p. 9.)
But Cluff involved a questionable violation of the sex
offender registration law, which the Court of Appeal
characterized as “the most technical violation of the section
290 registration requirement we have seen.” (87 Cal.App.4th at
p. 994.) That, in and of itself, distinguishes that case from
this case.
In Cluff, the Court of Appeal noted that the trial court,
in rendering its verdict, had observed that “the evidence was
insufficient to determine whether Cluff’s failure to register
was ‘negligent as opposed to intentional.’” (87 Cal.App.4th at
p. 996.) And the record revealed that “[t]he annual updating
requirement [that Cluff violated] was added to the Penal Code
five years after Cluff left prison” and that “the new
requirement was omitted from the only document he was allowed to
keep in 1995.” (Id. at p. 1001.) Oddly, at sentencing, the
trial court disagreed with its earlier determination that it was
a technical violation and found that Cluff’s misrepresentation
of his address and criminal background in a job training
application was an “obfuscation” that went beyond “the technical
290 violation.” (Ibid.) But the Court of Appeal concluded that
“the evidence in the record [did] not support the inference of
obfuscation that was central to the trial court’s ruling.
Therefore, the [trial] court abused its discretion when it

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denied Cluff’s Romero motion.” (Id. at p. 1004.) Thus, in
Cluff, the very basis for the trial court’s determination that
the failure to report was not a technical violation was not
supported by substantial evidence. In contrast, here, as the
majority acknowledges, the trial court’s determination that the
violation was knowing is supported by substantial evidence.
(Maj. opn. ante, at p. 6, fn. 4.)
Further, Cluff’s background, character, and prospects were
more favorable than defendant’s. In Cluff, the defendant had
worked as an electrician prior to his conviction, and his
criminal record was not as serious as the defendant’s.
In short, even if Cluff fell outside the spirit of the
Three Strikes law, the 25-year-long criminal history of the
defendant in this case, including three violent assaults and
numerous other convictions and parole violations, places him
squarely within its scope.
Accordingly, I do not understand how we can say that it
falls outside the bounds of reason to sentence the defendant
pursuant to the Three Strikes law, based on a current felony of
knowingly failing to register as a sex offender -- which
followed two previous such violations -- simply because he did
not commit yet another felony by failing to register the month
before.
Nor do I understand how we can say that it falls outside
the bounds of reason to sentence a habitual and sometimes

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violent offender pursuant to the Three Strikes law for the
knowing failure to register as a sex offender on the grounds
that such a failure is supposedly “passive” or “harmless,” even
though that is the nature of that felony as defined by the
Legislature and any new felony triggers the Three Strikes law
against a defendant with a qualifying strike.
Nor do I understand how we can say it falls outside the
bounds of reason to sentence a career criminal for the knowing
failure to register because the criminal offense purportedly
“bears little indication that the defendant has recidivist
tendencies” when this is the third time he has violated the
registration requirements. Yes, a failure to register a month
after the defendant properly registered is less egregious than a
blanket refusal to comply with the law. But the trial court
found that defendant’s failure to register was knowing, and the
defendant had violated the registration requirement twice
before. In sentencing a habitual and sometimes violent
offender, whose third strike was his third violation of that
particular statute, it surely was not beyond the bounds of
reason -- that is, an abuse of discretion -- for the trial court
to follow a statutory scheme designed to restrict the courts’
discretion to depart from it.
Unless we are prepared to say that a knowing violation of
the registration requirements is not sufficient to trigger the
Three Strikes law -- a policy determination that is outside our

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province as courts -- we must affirm the trial court’s adherence
to the provisions of the Three Strikes law.
KOLKEY , J.

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