Cite as: 538 U. S. 11 (2003)
Breyer, J., dissenting
the actual punishment imposed, Cal. Penal Code Ann. §§ 17(a), (b) (West 1999); ante, at 16-17, which in turn depends primarily upon whether "the rehabilitation of the convicted defendant" either does or does not "require" (or would or would not "be adversely affected by") "incarceration in a state prison as a felon." In re Anderson, 69 Cal. 2d 613, 664-665, 447 P. 2d 117, 152 (1968) (Tobriner, J., concurring in part and dissenting in part); ante, at 29. In such cases, the felony/misdemeanor classification turns primarily upon the nature of the offender, not the comparative seriousness of the offender's conduct.
A subset of "wobbler" statutes, including the "petty theft with a prior" statute, Cal. Penal Code Ann. § 666 (West Supp. 2002), defining the crime in the companion case, Lockyer v. Andrade, post, p. 63, authorizes the treatment of otherwise misdemeanor conduct, see Cal. Penal Code Ann. § 490 (West 1999), as a felony only when the offender has previously committed a property crime. Again, the distinction turns upon characteristics of the offender, not the specific offense conduct at issue.
The result of importing this kind of distinction into California's three strikes statute is a series of anomalies. One anomaly concerns the seriousness of the triggering behavior. "Wobbler" statutes cover a wide variety of criminal behavior, ranging from assault with a deadly weapon, § 245, vehicular manslaughter, § 193(c)(1), and money laundering, § 186.10(a), to the defacement of property with graffiti, § 594(b)(2)(A) (West Supp. 2002), or stealing more than $100 worth of chickens, nuts, or avocados, § 487(b)(1)(A) (West Supp. 2003); § 489 (West 1999). Some of this behavior is obviously less serious, even if engaged in twice, than other criminal conduct that California statutes classify as pure misdemeanors, such as reckless driving, Cal. Veh. Code Ann. § 23103 (West Supp. 2003); § 23104(a) (West 2000) (reckless driving causing bodily injury), the use of force or threat of force to interfere with another's civil rights, Cal. Penal Code
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