People v. Brewer

Filed 6/7/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C089676

Plaintiff and Respondent, (Super. Ct. No. 17FE023299)

v.

MALCOLM NATHAN BREWER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Allen H.
Sumner, Judge. Affirmed.

Jyoti Malik, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A.
Hokans, Timothy L. O'Hair, Deputy Attorney General, for Plaintiff and Respondent.

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 Defendant Malcolm Nathan Brewer and codefendants Glen T. Conway and Shane
Donta Williams participated in a string of armed robberies and attempted robberies,
mostly of gas stations and convenience stores, in November and December 2017.1 In
many of the robberies and attempted robberies, defendant personally used a firearm by
displaying it to or pointing it at the victims. Defendant and his codefendants were
charged in a 20-count amended information with numerous counts of robbery and
attempted robbery with firearm enhancement allegations as well as one count of felon in
possession of a firearm. Williams entered into a plea agreement. Defendant and Conway
proceeded to trial together before separate juries.
Defendant’s jury found him guilty of 11 counts of second degree robbery, two
counts of attempted second degree robbery, and one count of felon in possession of a
firearm. The jury found true the allegations that defendant personally used a firearm in
connection with eight counts, and that a principal was armed with a firearm in connection
with two other counts. The trial court sentenced defendant, who had a strike prior, to an
aggregate determinate term of 63 years.
On appeal, defendant contends his sentence, which he characterizes as the
functional equivalent of a life sentence without parole imposed on a developmentally
disabled person, constitutes cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution and article I, section 17, of the California
Constitution. We reject defendant’s contention that such a sentence categorically violates
those constitutional provisions in the same way as imposition of the death penalty as to
developmentally disabled adults and imposition of life without the possibility of parole
(LWOP) as to juvenile defendants. We further reject his argument that the sentence he
received violated these constitutional prohibitions.

1 Unless otherwise noted, the underlying facts occurred in 2017.

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 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged, along with Conway and Williams, with 15 counts of
robbery in the second degree (Pen. Code, § 211;2 counts three-five,3 seven-ten, twelve-
nineteen), two counts of attempted second degree robbery (§§ 664, 211; counts six &
eleven) and one count of felon in possession of a firearm (§ 29800, subd. (a)(1); count
twenty). In connection with counts three through five, seven, eight, and ten through
seventeen, it was alleged defendant personally used a firearm. (§ 12022.53, subd. (b).)
In connection with counts eighteen and nineteen, it was alleged that a principal was
armed with a firearm. (§ 12022, subd. (a)(1).) It was further alleged that defendant
suffered a conviction of a prior serious felony within the meaning of section 667,
subdivision (a), that qualified as a prior strike within the meaning of the Three Strikes
law (§§ 667, subds. (b)-(i), 1170.12).4
Prosecution Evidence5
Generally, the robbery victims did not identify the perpetrators. However, as the
Attorney General notes, defendant was implicated in the robberies through the testimony
of an informant, DNA evidence, his own admissions, and video surveillance recordings.

2 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
3 Defendant was not charged in counts one and two.
4 The prior strike was a 2011 first degree burglary conviction.
5 The jury hung on counts three through five and the trial court declared a mistrial as to
those counts and granted the prosecution’s request to dismiss them. The jury found
defendant not guilty on count sixteen. Given the limited nature of defendant’s
contentions on appeal, we discuss only those counts of which defendant was convicted
and their underlying facts.

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On appeal, defendant does not dispute his participation in any of the robberies or
attempted robberies of which he stands convicted.
Count Six - ampm on Marconi Avenue
On November 24 at approximately 6:15 p.m., J.K., the store manager at the ampm
on Marconi Avenue, saw two men enter the store. The men each wore something
covering their faces, which led J.K. to believe they intended to rob the store. The store
had been robbed a couple of days earlier.6 J.K. could not tell if the men were armed. He
tried to “run away from the register and save” himself, but the men were coming in too
quickly. One man came in and held J.K., struggled with him, and pushed him against the
register. The second man stood by. Although the men were attempting to rob the store,
they were not able to take anything and they ran away. A surveillance video of the
attempted robbery was played for the jury.
Count Seven – ampm on Watt Avenue
At 6:25 on the night of November 24, B.P., an employee at a Watt Avenue ampm,
was working alone when two men robbed him.7 He was in the back when he heard the
bell indicating someone had entered the store. He saw two men with their faces covered
and he realized they were going to rob him. The larger of the two men, Williams,
grabbed B.P. and told him to open the register. The other man, defendant, wearing a
black hoodie with camouflage sleeves, had a gun and pointed it at B.P. B.P. opened both
registers but only one of them contained money. B.P. estimated that the men took more
than $500. Defendant also took five to 10 packs of cigarettes. Surveillance video of the
incident was played for the jury.

6 That earlier robbery was the subject of count five.
7 Defendant acknowledges that the two men were defendant and Williams and that
defendant was the smaller of the two men.

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 Count Eight – Shell Gas Station
On November 25, E.C. was working as a cashier at Shell on Florin Road. At
approximately 1:00 p.m., two men entered wearing masks.8 One man, Conway, came in
the register area and handed E.C. a note that said, “ ‘This is a robbery. Give it up.’ ”
E.C. opened one cash register. The other man, defendant, who had a gun, went to the
counter in front of E.C. Defendant pointed the gun at E.C. and told him to open the other
register, saying “ ‘Open this up, this one right here.’ ” E.C. responded that he did not
have access to that cash register. In actuality, E.C. could open the other register, but he
“didn’t want to give him what was in there.” E.C. testified: “The thing about it is, I
don’t know why, I must have been stupid . . . , but the gun seemed like it was rusted out
and it didn’t seem like it’s operational. And I had no fear at all for some reason.”
Meanwhile, B.N., the manager, was in her office when she observed the robbery. The
men were wearing masks, but she could tell they were African-American. Defendant was
holding E.C. at gunpoint. B.N. ran to the door, opened it, and told the men to leave, but
she retreated to her office when defendant, wearing a black hoodie with camouflage
sleeves, pointed a gun at her and told her to leave or he would shoot her. Surveillance
video of the incident was played for the jury.
Count Nine – G.C. and G.R.
On November 25, G.C. went to GameStop with his friend G.R. They left
GameStop and G.C. noticed they were being “scoped out a little bit” by “two dudes in a
car.” G.C. believed it was a Ford Taurus. There was “Raiders stuff all over the car, like
the hood and both the doors, and flags out the . . . back windows.”9 G.C. and G.R. sat

8Defendant acknowledges the two men were Conway and defendant, and that defendant
was the man who had a gun.
9 Defendant’s car is a Ford Taurus with Raiders stickers on the doors, hood, trunk, and
rear windshield.

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down on a bench and talked, and then noticed that the guys in the car drove around and
parked near the bench. The guys approached them and asked them some questions. G.C.
and G.R. tried to go back to the GameStop, but the guys from the car stopped them. One
of the men walked very close to G.C., to the point of touching chests. He said something
about a gun, although G.C. did not see a gun. The other man was standing to the side, but
he was “saying . . . the stuff that was scaring [G.C.]. Stuff like, ‘Don’t lose your life over
this.’ ” The man standing next to G.C. then took the bag from him. At trial, G.C.
identified defendant as one of the two men. He also identified the Ford Taurus pictured
in a number of photographs as the car the two men were in, and a photograph of a Star
Wars Battlefront II video game as the game taken from him that day, which was later
found in a hallway closet where defendant resided.
Count Ten - Circle 6
On November 25, Deputy Calvin Penwell of the Sacramento County Sheriff’s
Office was dispatched to a Circle 6 convenience store on Ethan Way and Alta-Arden
Expressway. There, he spoke with an employee, B.S. B.S. did not testify at trial. The
surveillance video recorded in and outside of the store shows a robbery. As shown in the
video, two men entered the store together, their faces covered, followed by a third
moments later, also with his face covered. As they entered the store, a man in a black
hoodie with camouflage sleeves pointed a gun.10 Defendant took B.S. behind the
register, holding him at gunpoint. B.S. opened the register. Defendant then took money
from the till. A second man in a hoodie with a graphic design assisted him with the till.
Meanwhile, a man in a peacoat and ski mask made B.S. give him items he had on his
person. It also appeared that defendant took merchandise from behind the register. The

10 Defendant acknowledges he was the man wearing the black hoodie with camouflage
sleeves who had a gun.

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man in the peacoat pushed B.S. out of the register area. All three men left shortly
thereafter, again two together at first and the third following behind.
Count Eleven - Bell Market
On November 29, D.A. was at work at Bell Market. A man entered the store
brandishing a gun and told D.A. to give him all his money.11 D.A. responded, “ ‘Fuck
you. I have no money,’ ” even though he did have money. D.A. also yelled for the
owner, who was in the back, to come out. Defendant ran out. Surveillance video of the
incident was played for the jury.
Counts Twelve and Thirteen – Subway
J.S. and J.M. were working at a Subway restaurant on Florin Road on November
29 when two men came in and robbed the store.12 J.S. was standing near the cash
register when the men entered. Their faces were covered with masks. J.S. testified that
they appeared to be African-American. One of the men demanded J.S. give him the
money from the cash register and then he pulled out a gun. The men also asked for the
money in the safe, but J.S. and J.M. did not have access to the safe. The men stole
approximately $420. Surveillance video of the incident was played for the jury.
Count Fourteen – Game Trader
J.E. was working as the manager at Game Trader on November 29. At
approximately 5:00 p.m., two African-American men wearing masks entered the store.
They “had the guns out already.” J.E. later testified, however, that it was possible that
only one of the robbers had a gun. One of the men did most of the talking, but the other
was moving around the store and “was asking if anyone else was here, stuff like that.”

11 Defendant acknowledges that he was the man who entered the store, alone,
brandishing a gun.
12 Defendant acknowledges that the two men were defendant and Conway, and that
defendant had a gun.

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The men told J.E. to open the cash registers. J.E. opened both registers, even though one
of the two registers did not have any money in it. There was $300 to $400 in the first
cash register, which the men took. The men told J.E. to get the gaming systems and the
latest video game titles. The men took eight to 10 video game consoles and
approximately 50 video games, each of which cost $20 to $60. They also took J.E.’s
Galaxy S7 cell phone.
J.E. testified that defendant was a customer at Game Trader. In that capacity, J.E.
knew defendant for approximately six or seven years. J.E. had many conversations with
defendant. J.E. testified that one of the robbers sounded like defendant. He was the one
holding a gun and staying in the store with J.E. when the other made trips to the car.
Count Fifteen – Stop N Shop
R.P. worked at Stop N Shop in Carmichael. On November 29, two men came into
the store at approximately 7:30 or 8:00 a.m. and robbed R.P. Their car “was painted
Raiders and ha[d] a flag on it.” At least one of the men had a gun. They passed R.P. a
note that stated, “ ‘It is a robbery. Give it up.’ ” The man who had not given R.P. the
note pulled out a gun and said, “ ‘Open it up. Give it up. Give it up.’ ”13 The man with
the gun had a bandana on his face but the other man did not. R.P. opened the cash
register and gave the men approximately $140. A surveillance video of the incident was
played for the jury. The video shows a man in a black hoodie with camouflage sleeves
pointing a gun directly at R.P. from across the counter and taking the cash out of the cash
till after R.P. opened it.
Count Seventeen – Union 76
W.F. was working at Union 76 on Fair Oaks Boulevard on December 13 when, at
approximately 11:35 p.m., two men entered and robbed the store. W.F. was close to the

13 Defendant acknowledges that he was the man who did not hand R.P. the note, and that
he had a gun.

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store entrance, making coffee. When the first man came through the door, he was not
wearing a mask, but he quickly put one on. The second man entered the store holding a
gun.14 The men told W.F. they were there to rob her and told her to empty the registers.
W.F. complied. While one man held W.F. at gunpoint, the other took the money from the
registers. He also took cartons of cigarettes. The men also told her to open the safe, but
she did not have access. W.F. estimated the men took approximately $80 from the
registers and $105 from her personally. A surveillance video of the incident was played
for the jury.
Counts Eighteen and Nineteen – ampm on El Camino Avenue
D.G. was working at ampm on El Camino Avenue on December 13 with his
coworker V.H. when a robbery occurred. One of the two men had a gun. V.H. opened
the registers for the men. One of the men yelled for D.G. to open the safe. The other
man, wearing a black hoodie with camouflage sleeves, did not say anything, but just
grabbed the money and then the two men left. A surveillance video of the incident was
played for the jury.
Defendant’s Arrest and Interview
Within six hours after the last robbery, in the early morning hours of December
14, Sacramento Police Department Officer John Fisher observed a Ford Taurus which
had Raiders stickers “all over it.” This matched a description of a vehicle described in a
Sacramento County Sheriff’s Office broadcast as a vehicle used in several armed
robberies. Fisher and his partner stopped the vehicle, drew their weapons, and ordered
the occupants to put their hands up. The passenger, Conway, complied. The driver,
defendant, opened his door, exited the vehicle, made eye contact with Fisher, and then

14 Defendant acknowledges that the first man to enter was Conway and the second, with
a gun, was defendant.

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ran. Fisher found a loaded .38 special revolver under the front passenger seat. Defendant
was subsequently detained nearby.
Following his arrest, defendant was interviewed by Detective David Treat. The
video recorded interview was played for the jury. In the interview, defendant implicated
himself in a number of the robberies. However, he maintained that he was afraid of
Williams, he was forced to participate in the robberies, and if he did not participate in the
robberies with Williams, “something bad” would happen to him.
Defense Evidence
Defendant did not present any evidence at trial. Conway testified on his own
behalf. He denied participating in the robberies.
Verdict and Sentencing
The jury found defendant guilty on counts six through fifteen and seventeen
through twenty, but found him not guilty on count sixteen. The jury found true the
allegations in counts seven, eight, ten through thirteen, fifteen, and seventeen that
defendant personally used a firearm. (§ 12022.53, subd. (b).) The jury found not true the
allegation that defendant personally used a firearm in connection with count fourteen.
The jury found true the allegations in counts eighteen and nineteen that a principal was
armed with a firearm. (§ 12022, subd. (a)(1).)
The trial court found true the allegation that defendant had a prior strike
conviction. The trial court sentenced defendant to an aggregate determinate term of 63
years, calculated as follows: on count seven -- the upper term of five years, doubled due
to the strike, plus 10 years on the section 12022.53, subdivision (b), enhancement
attached to that count;15 on count six -- one year four months (one-third the midterm

15 As it imposed 10 years for the section 12022.53, subdivision (b), firearm enhancement
attached to count seven, the trial court noted its newly authorized discretion to strike the
firearm enhancement. (§§ 12022.53, subd. (h), 1385.) However, it stated that, “[g]iven

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doubled); on counts eight through ten, twelve through fifteen and seventeen through
nineteen -- two years (one-third the midterm doubled); on count eleven -- one year four
months (one-third the midterm doubled); on the section 12022.53, subdivision (b) firearm
enhancement attached to counts eight, ten through twelve, fifteen, and seventeen - three
years four months (one-third the midterm); on the section 12022.53, subdivision (a),
enhancement attached to count eighteen – four months; and on count twenty -- the low
term of 16 months concurrent doubled to 32 months.16 The court struck the section
12022.53, subdivision (b), firearm enhancement attached to count thirteen and the section
12022, subdivision (a), firearm enhancement attached to count nineteen. The court also
struck the section 667, subdivision (a), five-year serious felony prior in the interest of
justice “just given the aggregate sentence of 63 years is sufficient to cover the conduct
involved in this case.” The court also found a violation of probation on a trailing case
and revoked and terminated probation.
DISCUSSION
I. The Parties’ Contentions
Defendant asserts that the sentence imposed, which he characterizes as the
functional equivalent of a life sentence imposed on an intellectually disabled person,
amounts to cruel and unusual punishment in violation of the Eighth Amendment to the
United States Constitution and article I, section 17 of the California Constitution.
Defendant emphasizes his intellectual disability. “Even though in his twenties,
[defendant] lived with his parents and his mother acted as payee of his social security

the nature of the offence, the Court does not find grounds for striking the use of the
firearm. Use of a firearm is pretty much the sine qua non of an armed robbery, so the
Court is not exercising its discretion.”
16 Because the original sentence imposed by the court on count twenty was statutorily
unauthorized, it corrected it after receiving a letter from CDCR and sentenced defendant
to the low term of 16 months, doubled for the strike prior, with the sentence to run
concurrently.

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benefits at the time of the instant offenses. [Defendant] requires verbal prompting with
hygiene, cooking and laundry, can neither read nor write and spent the majority of his pre
prison days playing basketball, working out, or watching television.”
Defendant also asserts that his confederates were the leaders in the robberies, and
were more aggressive, whereas he was quiet, passive, nervous, and “meek[],” following
the other perpetrators’ lead. He maintains the trial evidence demonstrated Williams was
the leader of the crew and he recruited defendant to participate in the robberies.
Defendant further asserts that, because Williams and Conway were his cousins, they were
in a position to exert influence over him. He also contrasts the sentence imposed on his
cohorts with the sentence he received. According to defendant, Williams, “the violent
and manhandling leader of the ‘crew’ received an eight year sentence pursuant to a plea
bargain,” and Conway received a 29-year-and-four-month sentence. Defendant,
however, received a term of 63 years. Defendant also emphasizes he was without an
attorney during interrogation and was more likely to confess due to his intellectual
disability.17
Defendant asserts that the sentence imposed was grossly disproportionate to his
offenses. He further asserts that, by disregarding his intellectual disability, and therefore
his purported diminished culpability, the trial court ignored prevailing United States
Supreme Court authority, including Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d
825] (Graham) [imposition of life without the possibility of parole sentence for a non-
homicide offense on a juvenile violates the Eighth Amendment prohibition against cruel
and unusual punishment where there is no provision of a meaningful opportunity for
release], Atkins v. Virginia (2002) 536 U.S. 304 [153 L.Ed.2d 335] (Atkins) [imposition
of the death penalty on a “mentally retarded” individual violates Eighth Amendment

17 Defendant does not challenge the admissibility of his statement to the police.

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prohibition against cruel and unusual punishment], and Solem v. Helm (1983) 463 U.S.
277, 300, 302 [77 L.Ed.2d 637] (Solem) [invalidating, under the Eighth Amendment, a
life without parole sentence under a recidivist statute where the defendant was convicted
of uttering a $100 “no account” check because the conviction offense involved “relatively
minor criminal conduct,” the defendant was treated more harshly than individuals
convicted of more serious crimes within the state, and he was treated more severely than
he would have been in any other state].
Defendant further maintains that the sentence imposed serves no legitimate
penological goals. He asserts that “the culpability of an intellectually disabled offender –
especially one who has the mental age of less than 10 years–surely does not merit the
functional equivalent of” a life sentence. Defendant asserts that there is limited deterrent
value when the offender lacks the wherewithal or cognitive ability to understand the
moral reprehensibility of his or her actions. Additionally, a moderated sentence would
not lessen the deterrent effect on other offenders who are not intellectually disabled,
because they would not be similarly situated and “encompassed in the exemption.”
The Attorney General emphasizes case law standing for the proposition that
Graham only applies to crimes committed before an offender’s 18th birthday. Because
defendant was well over 18 when he committed the charged offenses, the only applicable
question under Eighth Amendment analysis, and separately under the California
Constitution, is whether the sentence was proportional. The Attorney General
emphasizes the number of armed robberies, the fact that defendant was personally armed
with a firearm, the emotional injuries inflicted on the victims, and defendant’s recidivist
status i.e., his prior strike conviction, in asserting that the sentence imposed was not
grossly disproportionate. The Attorney General asserts that, on this record, defendant has
established neither that he is intellectually disabled nor that the sentence imposed was
grossly disproportionate “for a recidivist defendant convicted of several counts of armed

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robbery, and where the defendant personally used a firearm during most of those armed
robberies.”
II. Forfeiture
The Attorney General asserts that defendant has forfeited his claim by failing to
raise the issue before the trial court.
Before imposing sentence, the trial court stated that it was rejecting the probation
department’s and the prosecution’s recommendations that the court sentence defendant to
an aggregate term of 75 years. The trial court stated: “It is the Court’s intended sentence
-- to impose an aggregate sentence of 63 years.” The court then afforded the parties the
opportunity to be heard.
Defense counsel stated: “[I]t’s my belief and I think it was apparent through the
course of the trial that -- and from the papers that I’ve submitted that [defendant] suffers
from a moderate developmental disability; he has since birth. . . . [¶] My sense is . . .
that but for the -- that Mr. Conway and Mr. Williams, the codefendants at the initiation of
this case, were the prime movers relative to this series of robberies that occurred. There
was evidence that a number of them had occurred before [defendant] was drafted into this
robbery crew. [¶] I think it -- I think that a person like [defendant] who is -- who suffers
from a moderate developmental disability is aware of his having that disability and tries
to fit in; and, therefore, he is uniquely susceptible to outside influence. And I believe that
is what occurred in this case. And I believe the persons that he was influenced by were
Mr. Conway and Mr. Williams. [¶] I don’t know what would have occurred from late --
into late 2016 relative to [defendant], but I know that if Mr. Conway and Mr. Williams
were not in his life, that this series of robberies that he now stands convicted of, would
likely not have occurred. And with that, I’ll submit.”
Defense counsel did not argue that the sentence constituted cruel and unusual
punishment under the United States Constitution or the California Constitution when the
trial court indicated the sentence it intended to impose or when the court actually imposed

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sentence. Because defendant failed to make the contention that his sentence constituted
cruel and unusual punishment in violation of the Eighth Amendment or article I, section
17, of the California Constitution in the trial court, he has forfeited the issue. (People v.
Baker (2018) 20 Cal.App.5th 711, 720; People v. Speight (2014) 227 Cal.App.4th 1229,
1248; People v. Kelley (1997) 52 Cal.App.4th 568, 583.) As this court has noted, the
analysis requires a “fact specific” inquiry (People v. Norman (2003) 109 Cal.App.4th
221, 229 (Norman)), and those facts and their import to the analysis must be developed in
the trial court. (People v. Russell (2010) 187 Cal.App.4th 981, 993 [the claim involves
the type of issue that should be raised in trial court because trial judge, after hearing
evidence, is in a better position to evaluate mitigating circumstances and determine their
impact on constitutionality of sentence].) In a supplemental brief, defendant asserts that,
to the extent his claim is forfeited, he was denied the constitutionally effective assistance
of counsel. We shall consider defendant’s contention in the context of his ineffective
assistance of counsel claim. (Norman, at p. 229.)
III. Cruel and Unusual Punishment Framework
“[I]t is . . . firmly established that ‘[t]he concept of proportionality is central to the
Eighth Amendment,’ and that ‘[e]mbodied in the Constitution’s ban on cruel and unusual
punishments is the “precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.” ’ ” (In re Coley (2012) 55 Cal.4th 524, 538, quoting
Graham, supra, 560 U.S. at p. 59; accord, People v. Contreras (2018) 4 Cal.5th 349, 359
(Contreras).)
“The United States Supreme Court has interpreted the Eighth Amendment to
impose unique constraints on the sentencing of juveniles who commit serious crimes.
This case law reflects the principle that ‘children are constitutionally different from
adults for purposes of sentencing.’ ” (Contreras, supra, 4 Cal.5th at p. 359, quoting
Miller v. Alabama (2012) 567 U.S. 460, 471 [183 L.Ed.2d 407] (Miller), italics added.)
However, “a defendant’s 18th birthday marks a bright line.” (People v. Edwards (2019)

15
34 Cal.App.5th 183, 190 (Edwards).) And as this court has noted, “The Eighth
Amendment proportionality guarantee applies very differently to prison terms for adult
offenders.” (In re Bolton (2019) 40 Cal.App.5th 611, 622.) Indeed, the Eighth
Amendment’s proportionality principle is narrow in the context of non-capital sentences
for adult offenders. (Ibid.; Edwards, at p. 190, both citing Ewing v. California (2003)
538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (Ewing).) “It ‘ “does not require strict
proportionality between crime and sentence,” ’ but prohibits ‘ “extreme sentences that are
‘grossly disproportionate’ to the crime.” ’ ” (In re Bolton, at p. 622.)
In determining whether a sentence for a term of years is grossly disproportionate
for a particular defendant’s crime, “ ‘[a] court must begin by comparing the gravity of the
offense and severity of the sentence. [Citation.] “[I]n the rare case in which [this]
threshold comparison . . . leads to an inference of gross disproportionality” the court
should then compare the defendant’s sentence with the sentences received by other
offenders in the same jurisdiction and with the sentences imposed for the same crime in
other jurisdictions. [Citation.] If this comparative analysis “validate[s] an initial
judgment that [the] sentence is grossly disproportionate,” the sentence is cruel and
unusual.’ ” (In re Coley, supra, 55 Cal.4th at p. 542, quoting Graham, supra, 560 U.S. at
p. 60.) For recidivists, the gravity of the offense consideration in the Eight Amendment
analysis is not limited to the offense itself, but rather it includes the offense plus having
been convicted of a prior serious or violent felony offense. (Ewing, supra, 538 U.S. at
p. 28 [concluding that California’s Three Strikes law does not violate the Eighth
Amendment prohibition against cruel and unusual punishment; “The gravity of [the
defendant’s] offense was not merely ‘shoplifting three golf clubs.’ Rather, [the
defendant] was convicted of felony grand theft for stealing nearly $1,200 worth of
merchandise after previously having been convicted of at least two ‘violent’ or ‘serious’
felonies”].)

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 Regarding Eighth Amendment claims, “[r]eviewing courts must ‘ “grant
substantial deference to the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes.” ’ ” (Edwards, supra, 34
Cal.App.5th at pp. 190-191, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 999
[115 L.Ed.2d 836, 867] (opn. of Kennedy, J., conc. in part & conc. in the judg.) & Solem,
supra, 463 U.S. at p. 290.) “ ‘[O]utside the context of capital punishment, successful
challenges to the proportionality of particular sentences have been exceedingly rare.’ ”
(Ewing, supra, 538 U.S. at p. 21, quoting Rummel v. Estelle (1980) 445 U.S. 263, 272 [63
L.Ed.2d 382].)
California’s prohibition on “cruel or unusual punishment” (Cal. Const., art. I,
§ 17) has been read to bar any sentence “ ‘so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of human
dignity.’ ” (People v. Boyce (2014) 59 Cal.4th 672, 721 (Boyce), quoting In re Lynch
(1972) 8 Cal.3d 410, 424, italics omitted.) California courts examine three criteria in
assessing disproportionality: (1) the nature of the offense and offender, with emphasis on
his danger to society; (2) the penalty imposed compared with the penalties for more
serious crimes in California; and (3) the punishment for the same offense in other
jurisdictions. (People v. Christensen (2014) 229 Cal.App.4th 781, 806 (Christensen);
accord, In re Lynch, at pp. 425-427.)
IV. Ineffective Assistance of Counsel
A. Ineffective Assistance of Counsel Framework
In a supplemental opening brief, defendant asserts he was deprived of the
constitutionally effective assistance of counsel by his trial counsel’s failure to argue that
the sentence imposed constituted cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution and article I, section 17 of the California
Constitution.

17
 To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696]
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); People v.
Rogers (2016) 245 Cal.App.4th 1353, 1367 (Rogers).) “ ‘Surmounting Strickland’s high
bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d
624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d
284, 297].)
B. Deficient Performance
1. Graham, Miller, and Atkins
Defendant’s arguments are premised primarily on United States Supreme Court
jurisprudence addressing the Eighth Amendment in connection with juveniles sentenced
to terms of life without parole (Miller, supra, 567 U.S. 460; Graham. supra, 560 U.S. 48)
and the imposition of the death penalty on offenders with mental disabilities (Atkins,
supra, 536 U.S. 304). Defendant asserts that the analysis of his claim properly comes
under these cases where the United States Supreme Court has employed a categorical
approach, such as Graham, Miller, and Atkins, and similar cases, and that, under these
cases, his sentence is unconstitutional. Defendant asserts that it is clear, particularly since
the United States Supreme Court decided Graham and Miller, that there is a national
consensus against the imposition of a life sentence on the intellectually disabled.
It is true that the United States Supreme Court “has derived a number of
limitations on juvenile sentencing: (1) no individual may be executed for an offense
committed when he or she was a juvenile” (People v. Franklin (2016) 63 Cal.4th 261,
273-274, citing Roper v. Simmons (2005) 543 U.S. 551, 578 [161 L.Ed.2d 1, 28]
(Roper)); “(2) no juvenile who commits a nonhomicide offense may be sentenced to
LWOP” (Franklin, at pp. 273-274, citing Graham, supra, 560 U.S. at p. 74), “and (3) no

18
juvenile who commits a homicide offense may be automatically sentenced to LWOP”
(Franklin, at pp. 273-274, citing Miller, supra, 567 U.S. at p. 465). However, this line of
cases explicitly applies to juvenile sentencing. At the time defendant committed all of
the crimes at issue here, he was 28 years old. He was 30 years old at sentencing.
An underlying rationale concerning the juvenile sentencing line of cases is that
“children are constitutionally different from adults for purposes of sentencing. Because
juveniles have diminished culpability and greater prospects for reform . . . , ‘they are less
deserving of the most severe punishments.’ ” (Miller, supra, 567 U.S. at p. 471, quoting
Graham, supra, 560 U.S. at p.68, italics added.) The high court identified three ways in
which juvenile culpability differed from adults for purposes of sentencing: (1) “children
have a ‘ “lack of maturity and an underdeveloped sense of responsibility,” ’ leading to
recklessness, impulsivity, and heedless risk-taking”; (2) “children ‘are more vulnerable
. . . to negative influences and outside pressures,’ including from their family and peers;
they have limited ‘contro[l] over their own environment’ and lack the ability to extricate
themselves from horrific, crime-producing settings”; and (3) “a child’s character is not as
‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be
‘evidence of irretrievabl[e] deprav[ity].’ ” (Miller, at p. 471, quoting Roper, supra, 543
U.S. at pp. 569, 570.)
But juvenile culpability is not the only characteristic that makes juveniles
different. A second distinguishing characteristic is the prospect for reform and
rehabilitation. As stated in Graham in the context of life sentences without the
possibility of parole, “[t]hose who commit truly horrifying crimes as juveniles may turn
out to be irredeemable, and thus deserving of incarceration for the duration of their lives.
The Eighth Amendment does not foreclose the possibility that persons convicted of
nonhomicide crimes committed before adulthood will remain behind bars for life. It does
prohibit States from making the judgment at the outset that those offenders never will be
fit to reenter society.” (Graham, supra, 560 U.S. at p. 75, italics added.)

19
 However, crucially, these lines of cases have no applicability to the circumstances
of defendant who was 28 when he committed the crimes at issue here and 30 at
sentencing. “[A] defendant’s 18th birthday marks a bright line, and only for crimes
committed before that date can he or she take advantage of the Graham/[People v.
Caballero (2012) 55 Cal.4th 262] jurisprudence in arguing cruel and unusual
punishment.” (Edwards, supra, 34 Cal.App.5th at p. 190.)
Defendant relies on his developmental disability and his related purported mental
age in advancing his contentions. He asserts, without citation to authority, that “[a]n
intellectually disabled person, such as [defendant], is no different than a juvenile
offender.” (Italics omitted.) However, the United States Supreme Court has not applied
the foregoing line of cases addressed to juvenile offenders to adult defendants with
developmental disabilities. We decline to make this leap ourselves as defendant urges.
We note, among other things, that a key component of the underlying rationale applicable
to juvenile offenders does not apply to defendant. Unlike juvenile offenders, who are in
the midst of their growth, development, and maturation, who are, in other words,
undergoing significant physical, mental, and psychological changes (see generally Miller,
supra, 567 U.S. at p. 471), there is no indication that adults, developmentally disabled or
otherwise, likewise face the prospect of such significant future change or the same
potential for reform and rehabilitation.
Defendant also relies heavily on Atkins, supra, 536 U.S. 304. In Atkins, the United
States Supreme Court concluded “the Eighth Amendment prohibits application of the
death penalty to mentally disabled persons . . . .” (In re Bolton, supra, 40 Cal.App.5th at
p. 616, citing Atkins, at p. 321.) The majority in Atkins concluded: “death is not a
suitable punishment for a mentally retarded criminal. We are not persuaded that the
execution of mentally retarded criminals will measurably advance the deterrent or the
retributive purpose of the death penalty. Construing and applying the Eighth Amendment
in the light of our ‘evolving standards of decency,’ we therefore conclude that such

20
punishment is excessive and that the Constitution ‘places a substantive restriction on the
State’s power to take the life’ of a mentally retarded offender.” (Atkins, at p. 321.) In
addition to the societal purposes for the death penalty—retribution and deterrence—the
majority in Atkins considered the possibility that the “risk ‘that the death penalty will be
imposed in spite of factors which may call for a less severe penalty,’ [citation], is
enhanced, not only by the possibility of false confessions, but also by the lesser ability of
mentally retarded defendants to make a persuasive showing of mitigation in the face of
prosecutorial evidence of one or more aggravating factors.” (Id. at p. 320.)
The concerns discussed in Atkins related to the retributive and deterrent purposes
served by the death penalty when imposed upon those with mental disabilities are simply
not implicated here because the death penalty, the subject of the high court’s analysis in
Atkins, is not at issue here. Indeed, it is important to note that the high court in Atkins did
not prohibit an LWOP sentence for “mentally retarded” (the more appropriate term is
developmentally disabled) adult defendants. Instead, the high court was careful to note:
“Those mentally retarded persons who meet the law’s requirements for criminal
responsibility should be tried and punished when they commit crimes.” (Atkins, supra,
536 U.S. at p. 306.) Thus, Atkins does not help defendant, even if his sentence is the
functional equivalent of LWOP.
Defendant asserts otherwise. He argues: “Just as 17 years ago –at the time Atkins
was decided –‘it [was] fair to say that a national consensus ha[d] developed against’
execution of the intellectually disabled, now, it would be fair to say, especially in light of
the Supreme Court’s ruling in Graham and Miller (eight and ten years, respectively, after
Atkins was decided), that a national consensus has emerged against the imposition of a
life sentence on the intellectually disabled –those who have the mental age of children.”
However, defendant cites no other authority for this premise, beyond asserting that his
legal research did “not reveal a single case where a court imposed this sort of a sentence
despite acknowledging that the defendant exhibited moderate intellectually disability.”

21
 Defendant relies upon the societal consensus addressed in Atkins, but that
consensus addressed by the high court was against imposition of the death penalty on
defendants with mental disabilities. (Atkins, supra, 536 U.S. at pp. 306-307, 313-317.)
“This consensus unquestionably reflects widespread judgment about the relative
culpability of mentally retarded offenders, and the relationship between mental
retardation and the penological purposes served by the death penalty.” (Id. at p. 317,
italics added.) Again, Atkins is inapposite here where the death penalty is not implicated.
While attempting to draw analogies to the United States Supreme Court
jurisprudence, defendant acknowledges that, “as of now, no court has held that the
functional equivalent of a life sentence imposed upon an intellectually disabled [adult]
defendant is unconstitutional” under the Eighth Amendment to the United States
Constitution or article I, section 17, of the California Constitution. Indeed, defendant is
expressly “asking this [c]ourt to pronounce a new rule of law in light of existing United
States Supreme Court precedents.” We conclude that, even assuming defendant is
intellectually disabled to the extent represented in his briefing on appeal, the case law on
which defendant relies simply does not support the premise that it is categorically
unconstitutional to sentence a developmentally disabled adult recidivist to a lengthy
determinate term for multiple armed robberies. Consequently, we decline to broaden the
scope of that case law.18
We conclude that defense counsel’s performance was not deficient for failing to
raise constitutional challenges to defendant’s sentence based on these inapplicable
precedents. Nevertheless, we address whether defendant’s sentence violates the Eighth

18 As noted, reviewing courts grant substantial deference to the broad authority that
legislatures necessarily possess in determining the types and limits of punishments for
crimes. (Edwards, supra, 34 Cal.App.5th at pp. 190-191.) And it would be well within
the Legislature’s prerogative to enact statutes addressing sentencing of demonstrably
developmentally disabled persons.

22
Amendment to the United States Constitution or article I, section 17, of the California
Constitution based on proportionality considerations in further considering the question
of deficient performance and in considering the separate question of prejudice.
2. Constitutional Proportionality
To determine whether defendant’s sentence is grossly disproportionate, we must
compare the gravity of defendant’s offenses and the severity of the sentence imposed. (In
re Coley, supra, 55 Cal.4th at p. 542.)
Defendant received what is obviously a lengthy sentence. The trial court
sentenced him to an aggregate term of 63 years, and as noted, he was 30 years old at the
time of sentencing.
But defendant’s current offenses are serious and numerous. He and his
confederates committed a string of armed robberies and attempted armed robberies over a
two-month period. It appears he would have continued to do so if he had not been
caught. Defendant stands convicted of 11 counts of second degree robbery (§§ 211,
212.5, subd. (c)), and two counts of attempted second degree robbery (§§ 211, 212.5,
subd. (c), 664), as well as one count of felon in possession of a firearm (§ 29800, subd.
(a)(1)). The jury found that, in the commission of eight of the robbery and attempted
robbery offenses, defendant personally used a firearm. (§ 12022.53, subd. (b).)
Additionally, the jury found that, in connection with two other counts, a principal was
armed with a firearm. (§ 12022, subd. (a)(1).) It appears that defendant used his car to
facilitate the robberies in which he was involved. Although the victims were not
physically injured, they sustained emotional harm; the court noted that “several of them
quit [their] jobs” after they were robbed.
Moreover, defendant is not subject to a lengthy sentence “ ‘ “merely on the basis
of his current offense but on the basis of his recidivist behavior. Recidivism in the
commission of multiple felonies poses a manifest danger to society[,] justifying the
imposition of longer sentences for subsequent offenses.” ’ ” (People v. Mantanez (2002)

23
98 Cal.App.4th 354, 366, quoting People v. Stone (1999) 75 Cal.App.4th 707, 715.) As
we have noted, for Eighth Amendment purposes, the gravity of the crime consideration
includes not only the offense, but also a defendant’s repetitious commission of serious or
violent felony offenses. (Ewing, supra, 538 U.S. at p. 28.) Indeed the Ewing court
observed, “[r]ecidivism has long been recognized as a legitimate basis for increased
punishment” and the state has a “public safety interest in incapacitating and deterring
recidivist felons.” (Id. at pp. 25, 29.) Similarly, as we have noted, for purposes of
California’s cruel or unusual punishment analysis, the first consideration is “the nature of
the offense and offender” with emphasis on his danger to society. (Christensen, supra,
229 Cal.App.4th at p. 806.)
Defendant faults the trial court for sentencing him to the “functional equivalent of
a life sentence” “without any regard of [his] intellectual disability or his difficult
childhood.” Defendant’s contention is belied by the record. There is no question that
defendant’s mental challenges should be considered in the mix of mitigating and
aggravating factors pertinent to a trial court’s sentencing decision, and the court did so
here. In sentencing defendant, the trial court stated that it had read the materials
submitted by the defense, including psychological evaluations. The court noted that
defendant’s developmental disabilities were documented. The court stated that the
submissions also described defendant’s difficult childhood and the challenges he faced
growing up.
We recognize defendant’s reliance on Atkins, notwithstanding the fact that the
death penalty is not implicated here, for the premise that mental disabilities bear on a
defendant’s individual culpability. (Atkins, supra, 536 U.S. at p. 317 [the national
consensus against imposition of the death penalty on mentally disabled individuals
reflects widespread judgment about the relative culpability of such offenders].)
However, even accepting as true defendant’s representations concerning his mental
disabilities, based on his circumstances, the offenses, his status as a recidivist, and the

24
sentence imposed, we cannot conclude there is gross disproportionality here. (See
generally Graham, supra, 560 U.S. at p. 60; In re Coley, supra, 55 Cal.4th at p. 542.)
This is simply not the “ ‘ “rare case in which [this] threshold comparison” ’ ” of the
gravity of defendant’s offenses and the severity of the sentence imposed “ ‘ “leads to an
inference of gross disproportionality . . .” ’ ” under the Eighth Amendment. (In re Coley,
at p. 542.)
We have addressed the nature of the offenses and offender. Defendant advances
no substantive arguments concerning the penalty imposed on him compared with the
penalties for more serious crimes in California or the punishment for the same offense in
other jurisdictions. (See generally Solem, supra, 463 U.S. at pp. 300, 302; In re Coley,
supra, 55 Cal.4th at p. 542; In re Lynch, supra, 8 Cal.3d at pp. 425-427; Christensen,
supra, 229 Cal.App.4th at p. 806.)
We conclude that the sentence imposed by the trial court did not violate the Eighth
Amendment to the United States Constitution or article I, section 17, of the California
Constitution. His sentence was not grossly disproportionate (In re Coley, supra, 55
Cal.4th at p. 542), nor was it “ ‘so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental notions of human dignity’ ”
(Boyce, supra, 59 Cal.4th at p. 721, quoting In re Lynch, supra, 8 Cal.3d at p. 424, italics
omitted). As such, defense counsel cannot be deemed ineffective for failing to make this
argument before the sentencing court. (See People v. Ochoa (1998) 19 Cal.4th 353, 463
[counsel is not constitutionally ineffective for failing to raise a meritless objection];
People v. Pierce (2015) 234 Cal.App.4th 1334, 1337 [same].)
C. Prejudice
To establish prejudice, “[i]t is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562 U.S. at
p. 104.) To show prejudice, defendant must show a reasonable probability that he would
have received a more favorable result had counsel’s performance not been deficient.

25
(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.) “The likelihood of a
different result must be substantial, not just conceivable.” (Richter, at p. 112, italics
added; Rogers, supra, 245 Cal.App.4th at p. 1367; People v. Jacobs (2013) 220
Cal.App.4th 67, 75; In re M.P. (2013) 217 Cal.App.4th 441, 457, fn. 10.)
Defendant was not prejudiced by his trial counsel’s failure to make a cruel and
unusual punishment argument under the Eighth Amendment to the United States
Constitution or a cruel or unusual punishment argument under article I, section 17, of the
California Constitution because he has not shown there is a reasonable probability that he
would have received a more favorable result had counsel made the argument.
(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
DISPOSITION19
The judgment is affirmed.

/s/
MURRAY, J.

We concur:

/s/
HULL, Acting P. J.

/s/
KRAUSE, J.

19 In light of our determinations, we need not discuss the Attorney General’s contentions
concerning defendant’s alleged reliance on matter outside the record regarding
defendant’s mental challenges.

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