Sentencing a mentally disabled person to 63 years is not cruel and unusual punishment

People v. Brewer (Cal. Ct. App., June 7, 2021, No. C089676) 2021 WL 2309551

 Summary:  Brewer  was convicted of second degree robbery, attempted second degree robbery, and felon in possession of a firearm, and sentenced to a determinate term of 63 years. Brewer appealed and contended that  his sentence, which he characterized 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.

The Court of Appeal held that:

Brewer  forfeited for review on direct appeal his claim that sentence was cruel and unusual punishment;

His attorney’s failure to argue that sentence was cruel and unusual punishment was not deficient performance; and he was not prejudiced by counsel’s failure to argue that sentence was cruel and unusual punishment.

The Court rejected Brewer’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. It  rejected  his argument that the sentence he received violated these constitutional prohibitions.

Brewer’s claim that the sentence was cruel and unusual punishment 

Brewer emphasized his intellectual disability. Even though in his twenties, Brewer  lived with his parents and his mother acted as payee of his social security benefits at the time of the commitment offenses.

Brewer asserts that the sentence imposed was grossly disproportionate to his offenses. He argued  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, 130 S.Ct. 2011, 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, 122 S.Ct. 2242, 153 L.Ed.2d 335 (Atkins) [imposition of the death penalty on a “mentally retarded” individual violates Eighth Amendment prohibition against cruel and unusual punishment], and Solem v. Helm (1983) 463 U.S. 277, 300, 302, 103 S.Ct. 3001, 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].

Ineffective assistance of counsel claim forfeited.

Brewer’s defense attorney 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 sentence. Because Brewer 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, 229 Cal.Rptr.3d 431; People v. Speight (2014) 227 Cal.App.4th 1229, 1248, 174 Cal.Rptr.3d 454; People v. Kelley (1997) 52 Cal.App.4th 568, 583, 60 Cal.Rptr.2d 653.)

Eighth Amendment Claim and California’s prohibition in cruel and unusual punishment

Courts reviewing  Eighth Amendment claims,  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, 246 Cal.Rptr.3d 40, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 999, 111 S.Ct. 2680, 2703–04, 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, 103 S.Ct. 3001.) “ ‘[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, 123 S.Ct. 1179, quoting Rummel v. Estelle (1980) 445 U.S. 263, 272, 100 S.Ct. 1133, 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, 175 Cal.Rptr.3d 481, 330 P.3d 812 (Boyce), quoting In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921, 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, 177 Cal.Rptr.3d 712 (Christensen); accord, In re Lynch, at pp. 425-427, 105 Cal.Rptr. 217, 503 P.2d 921.)

No ineffective assistance of counsel for failing to raise claims without precedent

Brewer’s attorney was not deficient for failing to raise constitutional challenges to defendant’s sentence based on inapplicable precedents.

Proportionality of the sentence and recidivism 

Brewer was 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) 98 Cal.App.4th 354, 366, 119 Cal.Rptr.2d 756, quoting People v. Stone (1999) 75 Cal.App.4th 707, 715, 89 Cal.Rptr.2d 401.)

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, 123 S.Ct. 1179.) 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, 123 S.Ct. 1179.) 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, 177 Cal.Rptr.3d 712.)