Can a defendant make a motion to strike his robbery conviction for the purposes of appealing against his sentence?

^2. Respondent contends defendant forfeited his claim of unconstitutionality by failing to raise the claim below. We disagree. The record reflects defendant moved to strike his 2002 robbery conviction (but not his 2012 one) in the interests of justice (1385; People v. Superior Court (Romero) 13 Cal.4th 497). Respondent's opposition expressly addressed the issue of cruel and unusual punishment as lacking merit. Further, at the hearing, defense counsel argued in view of "the very shaky state of the evidence," "the equities and fairness [considerations] would not seem to point toward . . . a sentence" of 25 years to life. Referring to "defendant's constitutional rights [under the] Eighth Amendment," the court asked defense counsel: "[I]s this cruel and unusual punishment to sentence the defendant to 25 to life based on his conduct?" After commenting that the court "even considered . . . whether or not this would be deemed cruel and unusual punishment," the trial court denied the Romero motion. Under these circumstances, we conclude that requiring defendant himself to raise his cruel or unusual (or both) punishment constitutional claims below would be a futile gesture and imprudently elevating form over substance. We decline to do so.