to impose a sentence of twenty five years to like on a defendant through the unable to control resort of islam do this to severe mental illness it's permissible to impose a twenty five year life sentence based on conviction of the misdemeanor in this case if the court is punishing receipt of as but when the defendant is severely mentally ill as in this case paranoid schizophrenia and there is a strong indication that the defendant is one able to control his impulses and unable to control his research as i'm going ahead and giving him that sentence without taking that diminished capacity into effect into account and without mitigating that in some way concert is cruel and unusual punishment rather so much your best case and support of your position robinson california drivers in california three seventy us at six hundred sixty six sixty seven it says a state law which makes it a criminal a class three mentally ill constitutional question of cruel and unusual punishment i thought robinson dealt with drug be mentally ill constitutes an inflation of cruel and unusual punishment is a step away from where we are in this case isn't it well not really and what do you have a case that follows or cites rob n that's like the case we have before us today where there may be or is a mental defect but the person has actually committed a crime should separate and apart from needed a crime to be a drug addict and the supreme court said you can't do that right and there's a pretty good also said that punishing a person for one day putting them in prison for one day for having a common cold because if you screw an unusual punishment and about his position in this case is that punishing mr joshua for being unable to control his conduct because it's clear that he has diminished capacity to control his conduct brings this case into into the various into the very same category simply simply because the california court of appeal in this analysis of cruel and unusual punishment failed to take into account in any way whatsoever the diminished capacity of mr joshua to control this conduct and even i repeat my colleagues question what's your best case to support the argument defense he said he couldn't because bush would take over i submit that this makes him an able to control his conduct in the same way that a normal person can control their conduct and therefore he walked out he was exercising absolutely zero impulse control at the time and now that they raised at the first trial court as a defense i common sense and this direction common sense indicates that the defendant has to have some difficulty in controlling is impossible so that's clear no no real sorr evaluation was made as to what extent that impacted on his resort of his own and that's the problem here here's your problem with this case let me be clear about we're here on  either you've got a team problem because you're asking us to apply a new rule that didn't exist at the time your client was sentenced or you've got an ethical problem because there isn't there is and i think if you have to concede that the timing was sentence there was no case from the united states supreme court saying what you're arguing here today and that is someone with an untold arab government that can't control their behavior can't be therefore have diminished personal culpability one has to go hand in glove with the other because we had at this point in time we look at the situation it's open and shut what happened the facts are not in dispute we know mr joshua walked into the store we know he took these boxes about all we know that he committed this crime of petty theft with a prior but we don't know whether he was able to control himself at the time that he did it if he was not able to control themselves that's a mitigating factor that should have been taken into account by the sentencing court and wasn't in the farrier to take that into account constitutes cruel and unusual punishment it's true that robertson doesn't say that in black letters but it's also true to me that the analogy is so clear that i really don't understand why we're disputing it i mean to me years is crystal clear what any evidence before this record about his mental hospitalized for approximately ten years in state psychiatric hospitals has suicidal ideas he hears voices off and he felt that he couldn't take over his defense because someone else would take  over from him so he said he's suffering delusions that's clear he is according to the state of california he's been what was great what was the testimony of the effect of his mental defect aware this case was originally here following a grant of relief from the district court and during the time the case was pending in this court the supreme court decided the drafty case as well as the ewing case and those cases foreclose relief on the grounds asserted by petitioner on a general eighth amendment claim and what we've seen the case sort of morph into is a more and more abstract  indications of of the mental illness in the defendant's background the sense is precluded as a matter of law under the eighth amendment there are a variety of difficulties with that as the court has already pointed out there is no case law remotely suggesting that the penalty in this case is invalid in light of the fact that the defendant had been diagnosed with with a psychiatric condition at points in his past on the contrary there are they were quoted by the court of appeal and i thought like to read them because they address that factor and i think they put it on context if i could reciting that the court has discretion of this matter and the court has t so therefore the court has a felony before and has to look at the total record and i quoted back to the gentleman who testified before us or gave a statement that the defendant has spent the best part of his life in prison and one would think that have grown having spent thirteen years in prison on the last sentence that he be ready to turn over a new leaf something will become institutionalized or simply incapable of being within a free society mr joshua has demonstrated that's what he is i just can't rationalize this and put it off to mental problems or addiction problems and say that that's all his problem has or that he is not a criminal or that he simply someone who should be treated as a patient because you said all these years in prison that obviously was some minor exceptions he would necessarily have been alcohol free unless he got some illicit liquor somewhere so he's been sentenced to six months to life he's been sentenced to three years he's been sentenced to four years he's been sent to twenty five years and now he is back before the court under the three strikes law the totality of the record i feel would simply be an abuse of discretion for the  strike straw and the motion to strike is denied the court had before his prior record it had before it the evaluation of the doctor the doctor did not describe him as insane did dr scribe them is mentally incompetent there was no metal defense if you will in the way that a mental defense is being asserted years later in this maybe as corpus appeal if those factors were going to be raised differently in a trial court they could have been done differently by truck out there but that's not the issue before the schizophrenia in the report that i'm aware of he also indicated the defendant was competent to stand trial there was no asserted defense of mental incompetence to stand trial nor was there in a sort of defense of insanity to the extent that these  and in terms of the the adequacy of the treatment it was not alleged previously in this case that there was a failure to consider these factors as sufficiently mitigating rather the claim as raised in the state  originally presented to this court was that it is simply unconstitutional as a matter of law to impose this type of sentence on this type of person of discretion does the trial court have a california three strikes law well that upon the court is entitle to weigh the mitigating evidence involved and it does have the power in what it deems appropriate circumstances to strike or disregard a number of prior convictions the point is that ultimately if we're talking about an abuse of discretion which is really what the standard becomes for a public purposes that's i would suggest far removed from the role of the federal habeas corpus court deciding whether or not a sentenced as a matter your honor that is a reiteration i would suggest of the of the so want that that opinion which i don't believe is relied upon by this petitioner but that opinion it seems to me off the basis of this petition is argument your honor as i understand it is that there was in it there was an inadequate consideration of this person's mental illness as a factor in the sentencing decision that has nothing to do i do if i recall the case correctly which  and he hasn't raised a generic claim other than his original claim which was reversed by this court or what i submit is his new his newer claim which is strictly on the in the area of this  contention regarding mental illness so that is the claim before the court yes ok thank you i thank you for your argument you've got a few seconds or so counsel for rebuttal yes very very thing i would like to read the to end with ford versus rain right for seven seven us three ninety nine page four seventeen justice marshall says that it is no less of corage today than it has been for centuries to re