3-Strikes Sentence Upheld in Sex Case

A defendant may be sent to prison for 25 years to life under the state’s three-strikes law because he missed a deadline for registering as a sex offender, the California Supreme Court ruled Thursday.

Keith Ishmeal Carmony had registered too early -- 3 1/2 weeks before the deadline.

A registered sex offender with a record of repeated crimes, Carmony was required to register with state officials within five days of his birthday on Oct. 22, 1999. He had registered on Sept. 23 that year when he moved to a new residence -- also required under the law. He was arrested when his parole officer realized he had missed the birthday deadline, pleaded guilty and was sentenced as a third-strike offender.

The state high court, interpreting the state’s three-strikes law, said in a unanimous decision that defendants may challenge such sentences, but that only “extraordinary” circumstances would warrant reversal.

Justice Carlos Moreno, in a concurring opinion, said he doubted that voters who approved the three-strikes initiative in 1994 intended life sentences for victimless crimes.

“This case joins the growing ranks of cases in which life sentences were imposed after the commission of minor felonies,” wrote Moreno, who was joined by Justice Ming Chin.

Moreno said he reluctantly agreed with the court’s decision because it did not close the door to Carmony’s challenging the sentence again as cruel and unusual punishment, a challenge that Moreno conceded was a longshot.

The issue of life sentences for minor crimes will be before voters again in November. A ballot measure, Proposition 66, would limit life terms under the three-strikes sentencing law to certain violent felonies.

Carmony brought the case after a trial judge refused to spare him from the sentence by dismissing prior strikes. Under the three-strikes law, a third conviction for most crimes automatically brings a sentence of 25 years to life. A judge has the power to dismiss prior strikes if he or she decides that doing so would be in the interest of justice.

Carmony’s original conviction, in 1983, had been on a charge of forced oral copulation with a minor younger than 14. He had an argument with his girlfriend, and in apparent retaliation, he sexually abused her 9-year-old daughter. He also had convictions for beating two girlfriends and for burglary, petty theft, trespassing and drunk driving.

His third strike was his failure to register.

Sex offenders are required to register with local police within five days of each birthday and whenever they move. Carmony had registered Sept. 16 and again on Sept. 23 to notify police of a new address. His address had not changed by Oct. 22.

When his parole agent discovered that Carmony had failed to re-register within five days of his birthday, she summoned him to her office and arrested him.

Carmony already had two prior convictions for failing to register but had registered with the Redding police in 1995, 1996, 1998 and 1999.

A Court of Appeal overturned his life sentence, calling his crime “the most technical violation [of the sex offender registration law] we have seen.”

The three-judge panel said the failure to re-register “was passive and without a practical impact in a way that many misdemeanor offenses and minor drug crimes are not.” The trial judge should have dismissed the prior strikes to avoid the 25-years-to-life sentence, the appellate court said.

But the California Supreme Court disagreed, saying that the trial judge had the discretion to decide on the prior strikes because Carmony had a long criminal history and “fell within the spirit of the Three Strikes law.”

“The [trial] court’s decision not to strike Carmony’s priors is neither irrational nor arbitrary and does not constitute an abuse of its discretion,” Justice Janice Rogers Brown wrote.

Life sentences cannot be overturned unless the judge’s decision was “so irrational or arbitrary that no reasonable person could agree with it,” the justices ruled.

Brown called Carmony’s case “far from extraordinary.” Observing that he had failed to register despite being reminded, that he had a long and violent criminal history and had done little to address substance abuse problems, Brown said Carmony “appeared to have poor prospects for the future.”

Victor S. Haltom, who represents Carmony, said if the ballot initiative passes, Carmony would be spared a life sentence as long as his case was still before the courts. Haltom said he would now ask the Court of Appeal to declare the sentence a violation of state and federal constitutional bans on excessive punishments.

“My client has a very bad record, but the current offense is so technical that hopefully this will shock people,” Haltom said.

A Field Poll conducted in mid-May indicated widespread public support for the initiative to restrict life sentences. Ballot propositions, however, often lose support as the election nears, and Gov. Arnold Schwarzenegger signed a ballot argument against the proposition Wednesday.

Deputy Atty. Gen. David Andrew Eldridge, who represented the prosecution in the case, said Thursday’s ruling would make it more difficult for defendants to claim on appeal that judges should have eliminated prior convictions to avoid life sentences for minor crimes.

“The court did leave open the possibility that it still could happen, but it would have to be extremely rare,” Eldridge said.