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Filed 10/4/21 P. v. Fowler CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DEANDRE DARIUS FOWLER,

Defendant and Appellant.

C092351

(Super. Ct. Nos. 18FE021033, 

17FE008013)

While on probation in another matter, a jury found defendant Deandre Darius 

Fowler guilty of second degree robbery. On appeal, defendant contends the trial court 

abused its discretion by imposing an unconstitutionally disproportionate upper term 

sentence of five years for the robbery conviction despite multiple factors in mitigation. 

Finding no merit to his contentions, we affirm.

I. BACKGROUND

In May 2017, defendant pled no contest to felony assault by means of force likely 

to produce great bodily injury (Penal Code, § 245, subd. (a)(4)),

1 and misdemeanor theft 

1 Further undesignated statutory references are to the Penal Code.
2

(§ 484) in case No. 17FE008013 (the assault case) in exchange for probation.2 The court 

suspended imposition of judgment and sentence and placed him on five years formal 

probation with various terms and conditions, including that he serve 120 days in jail. 

In October 2018, defendant and codefendants Alexander Smith and 

Alexander Newsome were charged with second degree robbery (§ 211) of victim E.M. in 

case No. 18FE021033 (the robbery case). Because defendant was still on active 

probation in the assault case, the prosecutor filed a petition for violation of probation. 

Smith pled no contest prior to trial, and defendant and Newsome were tried jointly 

before a jury. The following evidence was adduced at trial.

E.M. testified that one night in October 2018 he attended a Kings basketball game 

in Sacramento.3 He had consumed a large quantity of alcohol. After the game, he went 

to a bar, and then later took the light rail to go home. 

E.M. exited the light rail station at Broadway. He was very intoxicated and was 

unsure why he got off at that station as it was not his stop. He began talking to a man, 

and they eventually started drinking together. 

At some point, E.M. walked towards a bus stop near the Broadway station. On his 

way back from the bus stop, he met up again with the man he had been talking to and 

drinking with; a couple other men were also there. One of the men told E.M. to give him 

his wallet and whatever else was in his pockets. E.M. began tussling with the men and 

fell to the ground into some bushes; the men shoved and kicked him. While on the 

ground, the men took his wallet, which included some personal items and cash. E.M. 

2

 Defendant was initially charged with second degree robbery (§ 211), which the parties 

later agreed to reduce to assault and misdemeanor theft. 

3 When recalled by the defense, E.M. conceded he did not know that the Kings were not 

playing in Sacramento that night, and said he must have watched the game while drinking 

at a bar. 
3

remembered at least three men physically assaulting him during the robbery. The men 

ran off after taking his wallet. 

Police arrived at the light rail station a short time later and found E.M. near the 

station platform. E.M., who was visibly intoxicated, told the responding officer that a 

group of five to six men whom he did not know approached him while near the bus stop 

and told him to empty his pockets. They punched him and pushed him to the ground. 

While on the ground, one man reached into his front pants pocket and stole his tan leather 

wallet that contained $60. 

The jury viewed surveillance video of the incident. E.M. could not identify any of 

the perpetrators from the video, and he did not recognize any of the defendants during 

trial. 

The surveillance video showed two men, later identified as defendant and 

Newsome, boarding the light rail train at the stop immediately after E.M. had boarded the 

train. Defendant was wearing a distinctive black and yellow tie-dyed hooded sweatshirt 

with his hair in dreadlocks, pulled up into two buns on the sides of his head. Defendant, 

Newsome, and E.M. all got off the train at the same station. E.M. and defendant could be 

seen walking together, then exchanging something that looked like a bottle of liquor and 

both drank from the bottle. Later, defendant, Newsome, and Smith surrounded E.M. and 

push him into the bushes. 

Defendant was apprehended the following day wearing the same distinctive 

hooded sweatshirt with the same hairstyle as seen in the surveillance video. He was 

arrested and taken into custody. During a subsequent search at the jail, officers located a 

brown leather wallet that belonged to E.M. in defendant’s possession. 

The jury found defendant and Newsome guilty of second degree robbery. Based 

on his conviction in the robbery case, defendant was found guilty of violating probation 

in the assault case. 
4

The probation department recommended the court impose and suspend execution 

of the upper term of five years for defendant’s robbery conviction in the robbery case, 

and a consecutive one-third the midterm of one year for defendant’s assault conviction in 

the prior assault case, for a total aggregate sentence of six years in both cases. Probation 

further recommended that the court place defendant on formal probation to participate in 

the Adult Day Reporting Center (ADRC) program. 

In support of the recommended upper term, the presentence probation report listed 

three circumstances in aggravation—that defendant had engaged in violent conduct 

which indicated a serious danger to society, that his prior record of criminal conduct was 

significant, and that he was on formal probation when he robbed E.M. (Cal. Rules of 

Court, rule 4.421(b)(1), (2), & (4).)4 The report listed defendant’s youth (21 years old) as 

the sole circumstance in mitigation. (Rule 4.408.)

Defendant filed a sentencing brief urging the court to impose a suspended midterm 

sentence of four years plus placement in the ADRC program as recommended by 

probation. In addition to his youth (rule 4.408), defendant argued other factors in 

mitigation warranted the midterm, including that he had no apparent predisposition to 

engage in the robbery but was induced by others to participate in the crime (rule 

4.423(a)(5)), and that he voluntarily acknowledged wrongdoing before arrest or at an 

early stage of the criminal process (rule 4.423(b)(3)). His sentencing brief also noted his 

childhood background split between two homes, how his mother had lost her home and 

the family had to find a new place to live, that defendant was homeless for a period of 

time, and that defendant had four children with whom he wanted to cultivate a 

relationship. 

4 Further undesignated rule references are to the California Rules of Court.
5

At the sentencing hearing, defense counsel argued defendant wished to resolve the 

case early but was precluded from doing so due to the codefendants involvement in the 

case. Counsel again reiterated defendant’s youthfulness as a mitigating factor. 

The prosecutor requested the court impose the midterm of three years, which was 

the People’s original offer to defendant.5 He disagreed with probation’s recommendation 

to suspend sentence and place defendant in the ADRC program because he did not 

believe defendant would comply with the more onerous ADRC program requirements 

when he failed on probation only a year after being given a break in the assault case. 

The court rejected probation’s recommendation to suspend sentence and place 

defendant in the ADRC program. The court imposed the upper term of five years for the 

robbery and one year for the earlier assault offense. In denying probation and rejecting 

probation’s ADRC recommendation, the court noted that defendant’s criminal history 

included the recent 2017 robbery crime for which he ultimately pled no contest to a nonstrike assault offense and theft, and he had failed on probation for those offenses. His 

criminal history, in the court’s view, also appeared to negate any mitigation based on his 

youthfulness. And his failure on probation and his jail misbehavior demonstrated that 

defendant had no interest in following rules or trying to live a crime-free life despite 

having family and at least one child at the time he committed the crimes. The court 

stated: “I’m choosing the upper term because he was on probation at the time of the 

commission of this offense for an offense that is significantly similar to the offense for 

which he was found guilty in our case, and I see no matters in mitigation. I can’t think of 

5 Although defendant apparently wanted to accept the three-year offer, the prosecutor 

would not accept his plea unless all three codefendants resolved their matters; for reasons 

not apparent from the record, Smith eventually pled no contest prior to trial and 

defendant and Newsome proceeded to a jury trial.
6

a single thing in mitigation. Even the fact that he is young is really belied by the—his 

past criminal conduct.” Defendant timely appealed. 

II. DISCUSSION

Defendant contends the court abused its discretion by imposing the upper term for 

robbing E.M. He argues the court improperly dismissed his youthfulness as a mitigating 

factor and did not consider other mitigating factors such as his lack of education and 

history of poverty, homelessness, instability, and voluntary intoxication. In his view, his 

upper term sentence was “unconstitutionally harsh.” We conclude the court did not abuse 

its discretion in imposing the upper term.

We review a trial court’s sentencing decision for abuse of discretion. (People v. 

Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) “The trial court’s sentencing 

discretion must be exercised in a manner that is not arbitrary and capricious, that is 

consistent with the letter and spirit of the law, and that is based upon an ‘individualized 

consideration of the offense, the offender, and the public interest.’ ” (Ibid.)

The court may rely on any aggravating circumstances reasonably related to its 

sentencing decision (Sandoval, supra, 41 Cal.4th at p. 848; rule 4.420) and need not 

explain its reasons for rejecting alleged mitigating circumstances (People v. Avalos 

(1996) 47 Cal.App.4th 1569, 1583; People v. Holguin (1989) 213 Cal.App.3d 1308, 1317 

(Holguin)).6 Unless the record affirmatively indicates otherwise, the trial court is deemed 

to have considered all relevant criteria, including any mitigating factors. (Holguin, supra, 

at pp. 1317-1318; rule 4.409 [“Relevant factors enumerated in these rules must be 

6

 “In exercising his or her discretion in selecting one of the three authorized terms of 

imprisonment referred to in section 1170[, subdivision] (b), the sentencing judge may 

consider circumstances in aggravation or mitigation, and any other factor reasonably 

related to the sentencing decision. The relevant circumstances may be obtained from the 

case record, the probation officer’s report, other reports and statements properly received, 

statements in aggravation or mitigation, and any evidence introduced at the sentencing 

hearing.” (Rule 4.420(b).)
7

considered by the sentencing judge, and will be deemed to have been considered unless 

the record affirmatively reflects otherwise”].) The court may base an upper term 

sentence upon any aggravating circumstances it deems significant (Sandoval, supra, at 

p. 848), and a single factor in aggravation is sufficient to impose the upper term. (People 

v. Quintanilla (2009) 170 Cal.App.4th 406, 413.)

In this case, the probation report listed three circumstances in aggravation: that 

defendant engaged in violent conduct indicating a serious danger to society, that his prior 

criminal record was significant, and that defendant was on formal probation when the 

crime was committed. The report listed defendant’s age (21 years old) as a circumstance 

in mitigation. Defendant’s sentencing brief called the court’s attention to several other 

mitigating factors, including defendant’s difficult background and upbringing, his failure 

to graduate from high school because he got into trouble, his periodic homelessness, that 

he had no predisposition to rob the victim and was only induced by others to participate 

in the crime, and that he voluntarily acknowledged wrongdoing at an early stage of the 

criminal process. 

The court considered the probation report as well as defendant’s sentencing brief. 

Thus, contrary to defendant’s argument, the court did consider defendant’s lack of 

education, history of poverty, homelessness, and instability during sentencing. That the 

court did not find those factors compelling when balancing aggravating and mitigating 

factors does not mean the court abused its discretion in choosing the upper term based on 

defendant’s poor probationary performance at the time of the crime. The court was not 

required to explain its reasons for rejecting alleged mitigating circumstances. (People v. 

Avalos, supra, 47 Cal.App.4th at p. 1583; Holguin, supra, 213 Cal.App.3d at p. 1317.)

Even if we assume, without deciding, that the court improperly disregarded 

defendant’s youth as a mitigating factor, the probation report listed three factors in 
8

aggravation, any one of which was sufficient to support imposing the upper term.7 

(Sandoval, supra, 41 Cal.4th at p. 848 [upper term may be based upon any aggravating 

circumstance the trial court deems significant]; People v. Quintanilla, supra, 

170 Cal.App.4th at p. 413 [a single aggravating factor can support an upper term 

sentence].) The court chose defendant’s probationary status at the time he committed the 

crime as a specific aggravating factor justifying the upper term. That was proper. (Rule 

4.421(b)(4) [circumstances in aggravation include factors relating to the crime and factors

relating to the defendant, including that a defendant was on probation, mandatory 

supervision, post release community supervision, or parole when the crime was 

committed].)

In so concluding, the court noted that defendant had been on probation for a 

similar robbery in 2017 in the assault case, which had been broken down into an assault 

and theft to allow defendant the benefit of avoiding a strike. Despite being given

probation, defendant had failed to take advantage of what probation had to offer to avoid 

future criminal behavior as evidenced by his robbery conviction against E.M., as well as 

his misconduct while in jail. We cannot say on this record that the trial court’s decision 

was arbitrary or capricious, or that the court failed to consider defendant’s offense or his 

underlying background. (Sandoval, supra, 41 Cal.4th at p. 847.)

To the extent defendant argues his five-year term for the robbery was 

“unconstitutionally harsh” in violation of the Eighth Amendment of the United States 

Constitution or article I, section 17, of the California Constitution, he did not argue below 

7 Defendant argues the general rule—that a single aggravating factor is sufficient to 

support an upper term sentence—should only apply in the most egregious of cases, such 

as sexual abuse or trafficking matters. But he cites no authority for this proposition, and 

robbery itself has been deemed sufficiently egregious to delineate it as a serious and 

violent felony. (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19).) We therefore find no 

persuasive reason to depart from the well-settled rule regarding a single factor in 

aggravation. 
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that the sentence constituted cruel and unusual punishment under the constitutional 

provisions when the trial court imposed the five-year upper term. Because he failed to 

raise such contentions below, he has forfeited the issue. (People v. Brewer (2021) 

65 Cal.App.5th 199, 212 (Brewer).)

In any event, even if defendant’s constitutional claims were properly preserved,8

we conclude the five-year term imposed for defendant’s robbery conviction was not 

grossly disproportional to the crime, especially given defendant’s criminal history.

It is well settled that the concept of proportionality is central to the Eighth 

Amendment; the constitutional ban on cruel and unusual punishment includes the concept 

that punishment for crime should be graduated and proportioned to the offense. (In re 

Coley (2012) 55 Cal.4th 524, 538; Brewer, supra,65 Cal.App.5th 199, 212.) But the 

Eighth Amendment’s proportionality principle is narrow in the context of non-capital 

sentences for adult offenders like defendant. (In re Bolton (2019) 40 Cal.App.5th 611, 

622.) It does not require strict proportionality between crime and sentence, although it 

does prohibit extreme sentences that are grossly disproportionate to the crime. (Ibid.)

To determine whether a sentence for a term of years is grossly disproportionate for 

a particular defendant’s crime, a court looks to the gravity of the offense and the severity 

of the sentence. (Brewer, supra, 65 Cal.App.5th at p. 213.) “For recidivists, the gravity 

of the offense consideration in the [Eighth] 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.” (Ibid., citing Ewing v. California (2003) 538 U.S. 11, 

28.)

8 Defense counsel argued in his sentencing brief that a suspended middle term sentence 

of four years would be sufficient to ensure defendant’s compliance with the ADRC 

program “without being unduly punitive.” 
10

California’s prohibition on cruel and unusual punishment (Cal. Const., art. 1, § 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, italics omitted.) Courts 

consider the nature of the offense and the offender, with emphasis on his danger to 

society, the penalty imposed compared with the penalties for more serious crimes in 

California, and the punishment for the same offense in other jurisdictions. (Brewer, 

supra, 65 Cal.App.5th at pp. 213-214.)

On review, we must grant substantial deference to the Legislature’s broad 

authority to determine the types and limits of punishments for crimes. (Brewer, supra, 

65 Cal.App.5th at p. 213.) “ ‘ “[O]utside the context of capital punishment, successful 

challenges to the proportionality of particular sentences have been exceedingly rare.” ’ ” 

(Ibid., citing Ewing v. California, supra, 538 U.S. at p. 21.)

Here, the Legislature has designated five years as the upper term for second degree 

robbery, which qualifies as a serious and violent felony. (§§ 213, subd. (a)(2) [“[r]obbery 

of the second degree is punishable by imprisonment in the state prison for two, three, or 

five years”], 667.5, subd. (c)(9) [defining “violent felony” as including “any robbery”],

1192.7, subd. (c)(19) [defining “serious felony” to include “robbery or bank robbery”].) 

We cannot say that such punishment is grossly disproportional for an offense that 

involves the taking of personal property from another person, against his will, by means 

of force or fear. (§ 211 [defining robbery].)

In the context of this specific case, defendant engaged in the exact same conduct 

only a year prior when he was initially charged with robbery in the assault case. While 

the prosecutor eventually agreed to allow him to plead to an assault by means of force 

likely to produce great bodily injury and theft, rather than robbery, the court could 

properly consider that criminal history when determining that imposing the upper term in 

the robbery case was proportional to defendant’s culpability in light of his current and 
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prior convictions for the same conduct. “ ‘ “ ‘Recidivism in the commission of multiple 

felonies poses a manifest danger to society[,] justifying the imposition of longer 

sentences for subsequent offenses.’ ” ’ ” (Brewer, supra, 65 Cal.App.5th at pp. 218-219 

[a defendant subject to an aggregate term of 63 years for multiple second degree robbery 

convictions was not subject to a lengthy sentence merely based on his current offenses, 

but also based on his recidivist behavior; court found the sentence did not constitute cruel 

and unusual punishment].)

Defendant’s attempt to minimize his actions, claiming he would not have 

participated had it not been for the encouragement of his cohorts is not persuasive. A 

reasonable inference from the surveillance video is that defendant befriended E.M., who 

was obviously intoxicated, in order to later take advantage of him when he and his 

cohorts attacked E.M. and took his wallet. The fact that the victim only had roughly $60 

in his wallet at the time of the assault does not lessen the dangerousness or violent nature 

of defendant’s conduct.

Similarly, defendant’s claim that he was intoxicated when he robbed E.M. is not 

supported by the record. While the surveillance video showed defendant and E.M. both 

drink from what appeared to be a bottle of liquor, no evidence established that defendant 

was intoxicated as a result. His claim otherwise is nothing more than pure speculation.

Given the totality of the circumstances, defendant’s five-year sentence for second 

degree robbery, after suffering convictions for assault and theft for nearly identical 

behavior only a year prior, is not grossly disproportional to his culpability. The court did 

not abuse its discretion or violate the constitutional prohibitions against cruel and unusual 

punishment by imposing the upper term for robbing E.M.
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III. DISPOSITION

The judgment is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

HULL, Acting P. J.

/S/

 

MURRAY, J.