Filed 5/1/13 P. v. Roberson CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038340
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC961917)

         v.

ROBERT THOMAS ROBERSON, JR.,

         Defendant and Appellant.


         Defendant Robert Thomas Roberson, Jr., pleaded no contest to kidnapping and
assault by means of force likely to produce great bodily injury. He also admitted
suffering two prior convictions for purposes of the Three Strikes law and one prior
serious felony conviction for purposes of a five-year sentence enhancement. The trial
court denied defendant’s Romero1motion and sentenced him to 50 years to life for the
convictions consecutive to five years for the enhancement. On appeal, defendant
contends that the trial court (1) abused its discretion by denying his Romero motion, and
(2) erred by imposing cruel and unusual punishment. We disagree and affirm the
judgment.
                                                  BACKGROUND
         While defendant drove home with his girlfriend (victim), the two began arguing.
The argument escalated, and defendant stopped the car. The victim attempted to

         1
        People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (motion to dismiss
prior convictions) (Romero).
telephone 911, but defendant grabbed the phone and threw it out of reach. The argument
continued when the two reached the inside of their home. At some point, the couple went
outside and defendant pushed the victim into the car and drove away. Defendant then
punched the victim in the legs and abdomen. He stopped the car and threatened suicide.
The victim attempted to flee, but defendant grabbed her by the hair and forced her back
into the car. Defendant then got out of the car and threatened suicide again. The victim
exited the car and telephoned 911, but she could not convey a coherent message.
Defendant pushed her back into the car, drove away, and began punching her again. At
some point, defendant apologized and made the victim change her shirt to conceal that
there had been a fight and promise to tell others that they had been robbed and beaten.
When they returned home, the victim’s daughter recognized her mother’s distress and
telephoned 911.
       Defendant’s criminal history consists of four felony convictions for possession of
a controlled substance, two felony convictions for sexual penetration with a foreign
object, one felony conviction for assault by means of force likely to produce great bodily
injury, five misdemeanor convictions, and multiple arrests for parole violations.
       In his Romero motion papers, defendant acknowledged his extensive record:
“[Defendant] is a thirty-eight year old man who suffers from two prior strike convictions
against two different women occurring in 1993. Upon his initial release from prison, he
also suffered parole violations in 1996, 1997, 1998, and he was recommitted to prison in
2000 for a new, felony drug possession charge [citation]. A review of [his] RAP reveals
that two of his parole violations were also drug related.” He asserted, however, that he
had “committed himself to leading a drug-free life and was able to maintain that
existence until his relapse shortly before his arrest [in this case].” He explained that he
had regularly worked from 2001 until he injured his back in 2008, which resulted in him
beginning to take prescription pain medication. He submitted a psychological evaluation
that diagnosed him with anxiety disorder and depressive disorder. He pointed out that the

                                              2
victim had told the probation officer that defendant should not suffer a life sentence and
urged that his priors were old. He asked that the trial court strike one of the priors.
       In denying the motion, the trial court explained as follows: “These motions are
not based, they cannot be based on sympathy for you or prejudice against you. These
motions are, essentially, ones where I need to decide, based upon the law what I believe
the law directs me to do. [¶] And to that extent, it doesn’t allow me, for example, to take
into consideration my personal feelings about the Three Strikes law. It doesn’t allow me,
for example, to take exclusively into consideration the feelings of the victim in this case,
although that is a factor to be considered as is the fact that there was at least a decade in
which you showed that you had the ability to be a law abiding citizen in our community.
[¶] The value in the Court’s estimation of that period of time is that it shows, with your
ability, that you do have some future prospects, which is another thing to consider to be
law abiding. And that is something the law, again, instructs me I can consider with
respect to your case. [¶] Your attorney suggests that I can somehow engage in the
balancing of what would happen to you if I struck a strike and imposed a stiff sentence as
a two-striker in your case, which would be a 23-year sentence, as he suggests. And I’m
reluctant to get involved in that particular exercise, because the cases that I’ve reviewed
with respect to three strikes really are more formulaic than that. What I mean by that is I
have to look at your prior offenses. I have to look at your current offense. I have to look
at the period of time between your prior strikes and your current offense. And then I
have to take a look at your future prospects. And like I said, to some extent there’s a
period of time in the middle there that bodes well in your favor. And your future
prospects certainly arguably indicate that at some point in time you could again
contribute to society. [¶] All of that having been said, when the Three Strikes law was put
in place it was meant to protect society against serious and violent offenders. And one of
the criticisms that the law has come under over time is, as you’re aware, a third felony
doesn’t have to be serious or violent. It can be any felony if you’re a two striker that

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makes your third strike a life case. And I point that out to you because it’s under that
context that I look at this offense. And the fact that this current offense is a serious and
violent crime is something that does not bode well in your favor. [¶] It similarly does not
bode well in your favor is that your prior strikes are also against women. And as the DA
points out, you have a history of violent crime against women in your case. . . . And that,
in the Court’s estimation, makes your case a case that falls sadly and unfortunately well
within what the spirit and intent of the Three Strikes law is and should be.”
                                    ROMERO MOTION
       Under Penal Code section 1385, subdivision (a), a judge “may, either of his or her
own motion or upon the application of the prosecuting attorney, and in furtherance of
justice, order an action to be dismissed.” Romero held that “a trial court may strike or
vacate an allegation or finding under the Three Strikes law that a defendant has
previously been convicted of a serious and/or violent felony, on its own motion, ‘in
furtherance of justice’ pursuant to . . . section 1385[, subdivision] (a).” (People v.
Williams (1998) 17 Cal.4th 148, 158.) When a trial court considers a motion under
Romero, it “must consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the [spirit of
the three strikes law] scheme[] . . . in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (Id. at p. 161.) The Three Strikes law “establishes a sentencing requirement to
be applied in every case where the defendant has at least one qualifying strike” unless the
trial court deems the defendant falls outside the three strikes scheme. (People v. Strong
(2001) 87 Cal.App.4th 328, 337.) Only under “extraordinary” circumstances can a trial
court find a defendant “fall[s] outside the spirit of the very scheme within which he
squarely falls once he commits a strike as part of a long and continuous criminal record,
the continuation of which the law was meant to attack.” (Id. at p. 338.)

                                              4
       Defendant argues that the trial court abused its discretion because it failed to
consider the length of his overall sentence and the sympathy factors favorable to him.
There is no merit to the point.
       It is true that a trial court errs if it fails to appreciate the scope of its discretion and
therefore fails to exercise it. (People v. Carmony (2004) 33 Cal.4th 367, 378.) But it is
defendant’s burden to demonstrate an abuse of discretion (People v. Romero (2002) 99
Cal.App.4th 1418, 1433-1434), and reviewing courts will not infer sentencing error if the
record does not affirmatively show it. (People v. Carmony, supra, at p. 378 [court
ordinarily is presumed to have correctly applied the law on Romero motions].) In this
context--where a defendant seeks to establish the negative proposition that the trial court
did not consider what it was required to consider--a defendant can rarely meet the burden
to affirmatively demonstrate error because the trial court is not required to state reasons
for declining to strike a strike prior. (People v. Gillispie (1997) 60 Cal.App.4th 429,
433.) In other words, where the Legislature establishes a sentencing norm and requires
the trial court to explicitly justify a departure therefrom, all that is required on the
appellate record is a showing that the trial court was aware of its discretion to select an
alternative disposition. (Id. at p. 434.)
       Here, the record shows that the trial court was aware of its sentencing options.
Defendant filed a written motion, the People responded, and the parties argued their
positions. Moreover, the trial court’s own words indicate an awareness that defendant
faced a lengthy sentence, suffered from mental health issues, and had a crime-free period
in his life. The trial court was unquestionably aware of its discretion under Romero,
namely to balance the nature and circumstances of defendant’s present felonies, prior
convictions, and background, character, and prospects to determine whether defendant
may be deemed outside the spirit of the Three Strikes law. Defendant interprets the trial
court’s statements about not basing its decision on sympathy or prejudice and balancing
what would happen if it struck a prior as a refusal to exercise its discretion. But this

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interpretation of isolated statements is contradicted by the record as a whole--the trial
court’s remarks can be interpreted as communicating that the trial court was exercising its
discretion dispassionately and inclined against reducing the length of the sentence in light
of defendant’s record.
                         CRUEL AND UNUSUAL PUNISHMENT
       Defendant argues that his sentence constitutes cruel and unusual punishment under
the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
We disagree.
       Since the California Constitution’s prohibition against cruel or unusual
punishment is arguably broader than the United States Constitution’s prohibition against
cruel and unusual punishment, we analyze defendant’s contention under the California
standard only. A punishment that satisfies this standard necessarily also satisfies the
federal standard. (Cf. People v. Anderson (1972) 6 Cal.3d 628.)
       In analyzing the separate prohibition against cruel or unusual punishments
provided in the California Constitution, the California Supreme Court has said that a
sentence will violate the state Constitution if “it is so disproportionate to the crime for
which it is inflicted that it shocks the conscience and offends fundamental notions of
human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).)
       Although Lynch sets forth a rather lengthy, threefold examination of the question
of disproportionality (see Lynch, supra, 8 Cal.3d at pp. 425-429), we believe that there
must be a point when the standard version of the argument, such as that made here by
defendant, may be summarily rejected. (See, e.g., People v. Cortez (1999) 73
Cal.App.4th 276, 286.)2

       2
         An opinion of the Court of Appeal that does not warrant publication furthers only
the review-for-correctness function of the court, and, as such, does not merit extensive
factual or legal statement. (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)
“Memorandum opinions may vary in style, from a stereotyped checklist or ‘fill in the
(continued)

                                              6
       To the extent that defendant relies on the nature of his offense and the
disproportionate punishment under the recidivist statutes of other jurisdictions, we
summarily reject defendant’s argument for the reasons stated fully in People v. Cooper
(1996) 43 Cal.App.4th 815, 825-828. To the extent that defendant relies on the
nature-of-the-offender factor, we conclude that the assertion that his sentence is cruel and
unusual rings hollow when considered against his lengthy, serious record. Defendant
cites no case holding that such a sentence, given such a record, is unconstitutional. He
argues that his sentence is unconstitutionally excessive given his “mental health issues,
the age of his prior offenses, and the fact that these prior offenses occurred during a
single four-day span.” But he cites no case so holding.
       We also note that the United States Supreme Court in Lockyer v. Andrade (2003)
538 U.S. 63, and Ewing v. California (2003) 538 U.S. 11 (Ewing), reexamined its
opinions on the question of the proportionality of a term of years sentence under the
federal Constitution, including Rummel v. Estelle (1980) 445 U.S. 263, Solem v. Helm
(1983) 463 U.S. 277, and Harmelin v. Michigan (1991) 501 U.S. 957, and reiterated
California’s power to make “a judgment that protecting the public safety requires
incapacitating criminals who have already been convicted of at least one serious or
violent crime” and concluded “[n]othing in the Eighth Amendment prohibits California


blanks’ form to a tailored summary of the critical facts and the applicable law.
[Citations.] The briefest formats are appropriate in cases where the result is controlled by
an admittedly constitutional statute and which present no special question of
interpretation or application, cases where the result is controlled by an opinion of the
Supreme Court of the United States or the Supreme Court of California, or, in the
absence of either, where the result is consistent with an intermediate federal or state
appellate decision with which the court agrees, cases where the factual contentions are
subject to the routine application of the substantial evidence rule, cases decided by
applying the authority of a companion case, cases in which the result is mandated by the
United States Supreme Court, and cases where the appeal is not maintainable.” (Id. at p.
853.) This issue is appropriate for a brief format.


                                              7
from making that choice.” (Ewing, supra, at p. 25.) As the court noted, “[i]n weighing
the gravity of [a defendant’s] offense, we must also place on the scales not only his
current felony, but also his long history of felony recidivism.” (Id. at p. 29.)
       In short, defendant’s arguments that his current and prior offenses are mitigated by
other factors do not rise to such significance that the sentence he received could be said to
shock the conscience or offend fundamental notions of human dignity. (People v. Ingram
(1995) 40 Cal.App.4th 1397, 1414-1416 [upholding a 61 years to life sentence for “third
strike” residential burglar]; People v. Martinez (1999) 71 Cal.App.4th 1502, 1511
[upholding a 25 years to life sentence for “third strike” possessor of methamphetamine
who portrayed himself as a drug addict and victim of drugs, observing that “drug
addiction is not necessarily regarded as a mitigating factor when a criminal defendant has
a long-term problem and seems unwilling to pursue treatment.”].)




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                            DISPOSITION
The judgment is affirmed.




                                          Premo, J.




WE CONCUR:




      Rushing, P.J.




      Elia, J.




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