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The defendant appears before the court convicted of numerous sex offenses, and subject to a draconian sentencing scheme that would mandate a very lengthy sentence. The defense would note that, consistent with the defendant motion for new trial, the defendant’s Static 99 score is -1, indicative of an extremely low likelihood of a future conviction. By statute, the defendant is not eligible for probation. As argued herein, if the court finds that the statutory sentencing mandate amounts to cruel and/or unusual punishment, it has the authority to impose an appropriate sentence. It is the defense position that, in the absence of a New Trial, that the sentences on all counts be run concurrently.




Attorney for Defendant


The defense contends that the mandated minimum sentence of twenty five years to life would violate the cruel and/or unusual punishment provisions of the State and Federal Constitution. For these reasons, the defense requests the imposition of a probationary sentence.

In In re John Lynch (1972) 8 Cal.3rd 410, Justice Mosk addressed the question of whether or not a life sentence for a second offense of indecent exposure violated the cruel or unusual punishment clause. The case arose under California’s former indeterminate sentencing law. Factually, the matter did not involve an exhibitionist. In invalidating a life sentence for the conduct, the court found that as the petitioner had already served more than five years, the Writ was granted, and the petitioner was ordered released.

It is well settled a statutory punishment may violate the constitutional provision against cruel and/or unusual punishment not only if it is inflicted by a cruel and unusual method, but also if it is grossly disproportionate to the offense for which it is imposed. The Supreme Court had held that a punishment may violate the California constitutional prohibition if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends notions of human dignity. In Re Lynch (1972) 8 Cal 3d 410,424 105 Cal. Rpt. 217; People v. Thompson (1994) 24 Cal. App. 4th 299, 304, 29 Cal. Rptr. 2nd 847.

In People v. Dillon (1983) 34 Cal. 3d 441, 479, 194 Cal. Rpt. 390, the California Supreme Court expanded its analysis of crimes and proportional punishments. The court explained that the trial court must consider the specific facts of the crime in question, as compared with only considering the crime in the abstract. In addition, the court must consider the nature of the offender and ask whether the punishment is grossly disproportionate to the defendant’s culpability, taking into account factors such as age, prior criminality, personal characteristics, and state of mind.

In People v. Wingo,(1975) 14 Cal.3rd 169, challenging the former six month to life sentence for Penal Code section 245, assault by means of force likely to cause serious injury, Justice Mosk reasoned that as the actual term would be set by the Adult authority, challenge on direct appeal was inappropriate. If the Adult Authority was unreasonable, the constitutionality of the sentence imposed could be challenged by Petition for Writ of Habeas Corpus.

In In re Rodriguez (1975) 14 Cal.3rd 639, the petitioner had served twenty two years on a one year to life sentence for committing a lewd and lascivious act on a child. His Petition for Writ of Habeas Corpus challenged his life sentence as disproportionate to the offense and violating the constitutional provisions against cruel and unusual punishment. Chief Justice Wright reasoned that section Penal Code §288 proscribe a broad range of activity, for some of which a life sentence would be appropriate but in others would be excessive.

Although petitioner’s characteristics at the time and the circumstances of the offense he committed were, indisputably, non-aggravated, in other circumstances grave injury and even death are sometimes inflicted on victims of this offense. (Id. at p. 648.)

The court then had an obligation to look beyond the facial validity of the statute to the possible unconstitutional administration since a law “fair on its face” may be open to serious abuses.

Therefore, we reject both the suggestion that our task is complete once we conclude that a statutory punishment is not excessive on its face, and the proposition that our responsibility does not extend to an examination of the term-fixing practices of the Authority to ascertain whether they comport with the constitutional demands of the Eighth Amendment and article I, section 17, of the California Constitution. (Id. At pp. 649.)

“We reach the conclusion that the 22 years of imprisonment served by petitioner are excessive and disproportionate punishment by application of the Lynch-Foss analysis briefly referred to above. Since the question posed involves ‘proportionality’ as measured by constitutional standards of cruel or unusual punishment under article I, section 17, of the California Constitution, these techniques are appropriate not only to the examination of statutes challenged on their face, but also to terms as fixed by the Authority in individual cases.” (Id. At pp. 653-654.)

The first analytical technique that we suggested in Lynch was an examination of the ‘nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.’ (In re Lynch, supra, 8 Cal.3d 410, 425, 105 Cal.Rptr. 217, 226, 503 P.2d 921, 930.) Among the relevant factors noted there were the triviality of the offense, the absence of violence, the age of the offender, and the offender’s past history and individual personality. The offense committed here is by no means ‘trivial,’but the method of its commission involved no violence and caused no physical harm to the victim. The episode lasted only a few minutes. No weapon was involved and petitioner attempted none of the dangerous offenses sometimes associated with violations of section 288.

Nor do the particular characteristics of this offender at the time of the offense justify 22 years’ imprisonment. He was only 26 years old at the time of the offense. His conduct was explained in part by his limited intelligence, his frustrations brought on by intellectual and sexual inadequacy, and his inability to cope with these problems. He has no history of criminal activity apart from problems associated with his sexual maladjustment. Thus, it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment. (Id. At pp. 654-655.)

Having already served a term found to be in violation of the cruel and unusual punishment provisions, the petitioner was ordered discharged from confinement. A similar result was reached in In re Kenneth James Wells (1975) 46 Cal.App.3d 592, finding that a 1 year to life sentence for a repeat violation of 647a (now 647.6)was so disproportionate as to violate as to render the punishment cruel or unusual.

The importance of the individual characteristics of the defendant and the conduct is emphasized by comparison of Rodriguez to People v. Kingston (1974)44 Cal.App.3rd 624. In a case involving actual intercourse with child under fourteen, and possible psychological damage, the life sentence was found not to be cruel and unusual punishment.

The principles of Lynch continue to be cited by California courts. In re Nunez (2009) 173 Cal.App.4th 709, 725, Lynch and its successor cases where cited in a consideration of whether or not the imposition of a life without possibility of parole violated Article I, section 17, of the California Constitution. They were also cited by People v. Em (2009) 171 Cal.App.4th 964,976, in ruling that a 50 year to life term for felony murder was not cruel and/or unusual punishment.

The defense is unaware of any case addressing this issue. One case, People v. McNulty (1988) 202 Cal.App.3d 624, found that the denial of probation in pimping and pandering case, effectively setting a mandatory minimum sentence of 3 years, was not cruel and/or unusual. There is a substantial difference in the analysis of a 3 year term and a 25 to life term.

As cited above, life terms for child molestation have twice been found by our courts to be cruel or unusual punishment. In each case the application of Lynch depended on the particular facts related to the offense and the defendant. In the words of the prosecution, the conduct was minimal. No force was use. No threats were made. The defendant has led an exemplary life and poses no threat to reoffend. His Static 99 score is “1″. The probation report filed in the instant case indicates that Mr. Martin scored “1″, but that the author of the report did not like the result and arbitrarily raised it to “4″. The Static 99 test is based solely on a statistical analysis and permitting anyone to arbitrarily change the result distorts the meaning of the test and defeats its validity. The court may wish to address this action by the probation department.

Imposing a life sentence on this defendant would be cruel or unusual punishment under the California Constitution, and Cruel and Unusual Punishment under the United States Constitution.


Attached to this Memorandum are letters from those who know the defendant herein, attesting to his good character and offering support. Should the court feel that it is compelled by the statutes to impose a state prison sentence, the defense request that all sentences impose be run concurrently.

Dated: October 20, 2020

_______________________________________William P. Daley

Attorney for Defendant.

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