65,000 doses. Harmelin, 501 U.S. at 1002. Justice Kennedy distinguished Harmelin's offense from the "relatively minor, nonviolent crime at issue in Solem," concluding that Harmelin's crime was "as serious and violent as the crime of felony murder without specific intent to kill . . . . " Id. at 1002, 1004. Andrade's crimes did not pose a "grave harm to society," id. at 1002, and the nine videotapes he stole were recovered by store personnel as he exited the stores.

Moreover, petty theft is usually prosecuted as a misdemeanor. By classifying such conduct as a misdemeanor, the California legislature has indicated that petty theft is regarded as a relatively minor offense. Had Andrade's videotape thefts been his first theft offenses, the maximum penalty he could have received for each theft would have been six months in county jail and a maximum $1,000 fine. Cal. Penal Code � 490. Because he had a prior theft offense, however, they were elevated to petty theft with a prior -- a"wobbler" offense punishable either as a misdemeanor or felony. Cal. Penal Code � 666; Terry, 54 Cal. Rptr. 2d at 770-71. The prosecution's decision to charge the petty thefts as felonies qualified the offenses as his third and fourth strikes. Terry, 54 Cal. Rptr. 2d at 770-71. Thus, under a "unique quirk" in California law, Andrade's recidivism was double counted, first enhancing his misdemeanor offenses to felonies and then enhancing them again to third and fourth strikes. Riggs, 119 S. Ct. at 891 (Stevens, J., memorandum opinion respecting the denial of the petition for a writ of certiorari).

It is significant that the core conduct for which Andrade was sentenced is, in the first instance, classified as a misdemeanor rather than a felony. While the Supreme Court frequently defers to legislative judgments regarding the proper length of imprisonment for felony offenses, it is less clear that the same degree of deference is appropriate when extreme sentences are imposed for misdemeanor conduct. Id. (deference to legislative determination of punishment less pronounced when offense is not classified as a felony); Rummel,

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