Even assuming defendant was developmentally disabled, trial counsel did not provide ineffective assistance when he failed to challenge defendant’s 63-year sentence for multiple armed robberies as cruel or unusual. Brewer was convicted of a series of robberies, with firearm enhancements, committed when he was 28 years old. He was sentenced to 63 years in prison. On appeal he argued that the sentence was cruel or unusual, as the functional equivalent of LWOP, because he is developmentally disabled. Because trial counsel did not specifically object to the sentence on the grounds it was cruel or unusual at the time the sentence was pronounced, Brewer also argued he was deprived of constitutionally effective assistance of counsel. Held: Affirmed. The Court of Appeal first determined Brewer’s challenge to his sentence was forfeited because trial counsel failed to object. The court also determined that trial counsel’s performance was not deficient. Brewer’s arguments were primarily based on U.S. Supreme Court cases addressing the Eighth Amendment in connection with juvenile offenders sentenced to LWOP and Atkins v. Virginia (2002) 536 U.S. 304, which held “the Eighth Amendment prohibits application of the death penalty to mentally disabled persons.” The U.S. Supreme Court has not applied cases addressing juvenile offender sentencing to adult defendants with developmental disabilities and the Court of Appeal “decline[d] to make this leap.” A defendant’s 18th birthday marks a bright line and Brewer was 28 years old at the time of the offenses. Atkins does not prohibit imposition of an LWOP sentence (or its functional equivalent) on a person with developmental disabilities. Even assuming Brewer was developmentally disabled, the case law he relied upon “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.” Trial counsel’s performance was not deficient for failing to object based on inapplicable precedents.
Examined under constitutional proportionality, a determinate sentence of 63 years under the circumstances present here does not violate the prohibition against cruel or unusual punishment. The Court of Appeal also addressed whether Brewer’s sentence was unconstitutional based on proportionality considerations. Brewer was 28 years old at the time of the offenses, age 30 at sentencing. He was convicted of 11 counts of second degree robbery, two counts of attempted second degree robbery, and one count of felon in possession of a gun, enhanced for personal use of a firearm in eight of the offenses, enhanced because a principal was armed in another two counts, and he was sentenced as a second strike recidivist under the Three Strikes law because of a conviction of first degree burglary six years earlier. The trial court considered Brewer’s intellectual and developmental disabilities and difficult childhood. Instead of imposing the sentence of 75 years recommended by the probation department, the court sentenced him to 12 years less (the court struck two firearm enhancements and a prior serious felony enhancement). Brewer advanced no substantive arguments concerning the penalty imposed on him compared with the penalties for more serious crimes in California or for the same offense in other jurisdictions. The sentence was not grossly disproportionate, nor was it so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity. Trial counsel was not ineffective for failing to make this argument before the sentencing court. Additionally, Brewer was not prejudiced by his trial counsel’s failure to make a cruel or unusual punishment argument.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/C089676.PDF