It's rare to see a 1-1-1 decision in the Court of Appeal. And even rarer for such a split to be unpublished. So even though I don't usually comment on unpublished decisions, this one surely deserves mention.
The question revolves pretty much exclusively around what sort of sentence Marcus Lee Roberts should receive. He was a 22-year old African-American male whose sexual knowledge was fairly immature, and during the summer of 2004, he briefly dry-humped two teenage mentees who were sleeping at his home. That's a crime, for sure. The question is only how -- and how much -- he should be punished for it.
He's got no criminal record. The court-appointed psychologist concludes that Roberts is not a pedophile or sexual predator, that appropriate local treatment is available, that Roberts would succeed if treated, and is a good candidate for probation. Roberts was also a "model inmate with no disciplinary record" who "t[ook] advantage of the services offered to him" while he was in prison for the crime. Finally, Roberts "admitted culpability early on" and "expressed genuine remose and regret."
So what sentence? Probation's a possibility. Or, if you're going to put him in prison, you've got three choices: the low, mid, or upper term (4, 6, or 8 years, plus 2 more years for the second victim). What's your choice?
The trial court says: Upper term. Worse than your typical case. 10 years in prison.
Justice Raye writes the "majority" (of 1) opinion. Saying, in part, that "This is indeed a sad and troubling case. A young man with an unblemished record admitted to sex crimes involving young boys he mentored. As . . . we see reguarly in the cases before us, his conduct, while represensible, was less egregious than many section 288 [the crime that Roberts committed] offenses." But concludes that, sorry, for the next decade, Roberts gets to be "rehabilitated" (with no treatment) in prison. After a decade in prison, Roberts will surely come out of there much, much better than when he went in, I'm sure. And society then gets to deal with the results of that lengthy incarceration for the remaining 50 years of Roberts' life. Nonelessless, Justice Raye says: Affirmed. Not our job -- or role -- to do otherwise.
Justice Robie writes a separate opinion. That states, in its entirety: "In my opinion the sentence imposed in this case is too harsh and I would not have imposed it were I the trial judge. Nevertheless, the sentence does not constitute an abuse of discretion and I concur."
Justice Sims dissents in part, and agrees that there was no abuse of discretion in denying probation but dissents from imposition of the upper term, stating that the latter "shocks my conscience." Money quote from Justice Sims: "In my 25 years on the Court of Appeal, these events were among the least serious violations of Penal Code section 288, subidivision (d), that I have encountered. . . . Considering all these circumstances [no prior record, conclusions of the court-appointed psychologist, quick acceptance of responsibility and remorse, model prisoner, etc.] and comparing this case with other molest cases that have come through this court, I find imposition of the upper term shocking."
As an aside, Justice Sims also uses -- accurately, I might add -- the phrase "dry humping" to describe the crime that Roberts committed. A phrase that, a little research reveals, has not yet graced the pages of the California Reporter. Which -- wholly aside from the keenly interesting dispute between the justices -- would have been a good reason to publish the case. Even though, last time I checked, I'm pretty sure that's not one of the actual criteria in Rule 8.1105(c). Sadly.
It's a great dispute. One that concerns role, responsibility, and justice. So even though it's unpublished, it deserves a read. As well as serious reflection.
