People v. Banks CA2/1 ( 2021 )

Filed 11/1/21 P. v. Banks CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B306135
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA142468)
v.
EDWARD E. BANKS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Kelvin D. Filer, Judge. Reversed.
____________________________
Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie C. Brenan and Nathan Guttman,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
In 2017, the trial court sentenced defendant and appellant
Edward Eugene Banks to 60 years 8 months in prison for
one count of second degree murder (Pen. Code, § 187, subd. (a))1
and one count of making a criminal threat (§ 422, subd. (a)).
The sentence for murder included an enhancement of 25 years
to life for personally discharging a firearm causing great bodily
injury or death (§ 12022.53, subd. (d)), as well as a five-year
enhancement because Banks had previously been convicted of
a serious felony (§ 667, subd. (a)(1)).
At the time the court imposed the sentence, the
enhancements were mandatory, but while Banks’s appeal was
pending, the Legislature enacted laws giving courts the discretion
to strike them: Senate Bill No. 620 (Stats. 2017, ch. 682) (Senate
Bill No. 620) allows trial courts to strike or dismiss firearm
enhancements for purposes of sentencing. Senate Bill No. 1393
(Stats. 2018, ch. 1013) (Senate Bill No. 1393) does the same for
serious felony enhancements under section 667, subdivision (a)(1).
Both laws apply retroactively to defendants like Banks whose
cases were not final at the time the laws became effective. (See
People v. Woods (2018) 19 Cal.App.5th 1080, 1090–1091; People v.
Garcia (2018) 28 Cal.App.5th 961, 971–973.) We affirmed Banks’s
convictions on appeal, but we remanded the case to the trial court to
allow the court to consider striking the enhancements. (See People
v. Banks (May 31, 2019, B286858), opn. ordered mod. June 17, 2019
[nonpub. opn.] (Banks).)2
1 Subsequent statutory references are to the Penal Code.
2In our prior opinion in the case, we discussed the facts of the
murder in detail. Because they are not relevant to the issues in this
appeal, we do not repeat them here.
2
On remand, the trial court denied Banks’s motion to strike
his firearm enhancement, but granted his motion to strike the
five-year enhancement under section 667, subdivision (a)(1). By
striking the enhancement, the court reduced Banks’s sentence
by five years, resulting in a new aggregate sentence of 55 years
8 months to life. Banks now contends that we must remand
the case once again because it is not clear whether the trial
court understood that it had the authority to impose sentence
on a lesser firearm enhancement after striking the enhancement
under section 12022.53, subdivision (d). We agree.
BACKGROUND ON FIREARM ENHANCEMENTS
Section 12022.53 provides for sentence enhancements of
three different lengths, depending on the severity of a defendant’s
firearm use in committing an enumerated felony. A defendant
who personally uses a firearm is subject to a 10-year enhancement
under subdivision (b). If a defendant personally and intentionally
discharges a firearm, the length of the enhancement increases to
20 years under subdivision (c). And in cases where the defendant
discharges a firearm and proximately causes great bodily injury
or death, he is subject to an enhancement of 25 years to life under
subdivision (d). When a jury finds true multiple firearm allegations
for a single crime, the court may impose only a single enhancement
as part of the defendant’s sentence. (§ 12022.53, subd. (f).) In such
a case, “the court shall impose upon that person the enhancement
that provides the longest term of imprisonment.” (Ibid.)
Under section 12022.53, subdivision (h), as amended by
Senate Bill No. 620, the trial court “may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or
dismiss an enhancement otherwise required to be imposed.” This
authority means that “[i]n a case where the jury . . . returned true
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findings of the lesser enhancements under section 12022.53,
subdivisions (b) and (c), the striking of an enhancement under
section 12022.53, subdivision (d) . . . leave[s] intact the remaining
findings, and an enhancement under the greatest of those
provisions [is] mandatory unless those findings were also stricken
in the interests of justice.” (People v. Morrison (2019) 34
Cal.App.5th 217, 222 (Morrison).) Thus, the court has the
discretion to choose the most appropriate length of punishment
from among all the enhancement allegations the jury found true.
(See People v. Wang (2020) 46 Cal.App.5th 1055, 1090–1091.)
PROCEEDINGS BELOW
In the information charging Banks with the murder
of Jason Thompson, the prosecution alleged three firearm
enhancements, one for each of subdivisions (b), (c), and (d) of
section 12022.53. The jury found all three enhancements true,
and at the original sentencing hearing, the trial court imposed
the longest enhancement, 25 years to life under section 12022.53,
subdivision (d).
The court stated that it intended to impose and stay the
sentence on the two lesser firearm enhancements, but at the
request of Banks’s attorney, the court ordered the two lesser
enhancements stricken. The trial court’s initial intention was
correct. In cases like this, where the jury has found multiple
firearm allegations true, the court must impose the lesser
enhancements but stay them, rather than striking them.
(People v. Gonzalez (2008) 43 Cal.4th 1118, 1129.)
As a result, the abstract of judgment listed only a single
enhancement under section 12022.53, subdivision (d), with no
reference to the lesser enhancements under subdivisions (b) and (c).
The minute order from the sentencing hearing stated that “the
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punishment is stricken” as to the two lesser enhancements.
In our prior opinion in the case, we directed the trial court to
“consider . . . striking . . . the firearm enhancement in view of
Senate Bill No. 620” (Banks, supra, B286858, at p. 28), without
suggesting that there were multiple enhancements for the court
to consider.
At the resentencing hearing, neither of the attorneys
suggested that the court could or should impose a lesser
enhancement, and the court made no reference to the lesser
enhancements at the hearing. The court denied Banks’s request
to strike the firearm enhancement, explaining that if Senate
Bill No. 620 had been in effect at the time of Banks’s original
sentencing hearing, “I would not have exercised my discretion
to strike [the enhancement] for the following reasons: This
is a crime that involved a great deal of violence. It showed
some planning and sophistication. And there was an ongoing
dispute between Mr. Banks and the victim. There were threats
to witnesses. This is a shooting that occurred on a public street.
And Mr. Banks has a prior record.”
DISCUSSION
Banks contends that we must remand the case to the
trial court once again to allow the court to consider striking
the enhancement under section 12022.53, subdivision (d) and
enforcing one of the lesser enhancements. Given the ambiguity
in the sentencing record, we agree.
“ ‘ “Defendants are entitled to sentencing decisions made
in the exercise of the ‘informed discretion’ of the sentencing
court. [Citations.] A court which is unaware of the scope of
its discretionary powers can no more exercise that ‘informed
discretion’ than one whose sentence is or may have been based
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on misinformation regarding a material aspect of a defendant’s
record.” ’ ” (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081
(Billingsley); accord, Morrison, supra, 34 Cal.App.5th at p. 224.) In
this case, the court might have reasonably concluded that because
it had previously stricken the lesser enhancements, it could not now
impose them. At a minimum, the record “raise[s] serious doubts”
as to whether the trial court understood the scope of its discretion.
(People v. Lua (2017) 10 Cal.App.5th 1004, 1021.) “In the face of
such an ambiguous record, it is appropriate to remand the matter
to the trial court to consider the matter under the correct standard,
to the extent it has not already done so.” (Ibid.)
Where the record “shows that the sentencing court clearly
indicated that it would not, in any event, have exercised its
discretion to” grant the defendant relief (Billingsley, supra,
22 Cal.App.5th at p. 1081), we may decline to remand a case
on grounds of futility. That rule does not apply here. Although
the court found that it was not appropriate to reduce Banks’s
sentence by the amount of the only enhancement left after it struck
the lesser ones—the 25-year enhancement under section 12022.53,
subdivision (d)—the court’s comments do not foreclose that the trial
court would have imposed one of the lesser firearm enhancements
had the trial court not been persuaded by defense trial counsel to
strike them during the original resentencing. Put differently, the
trial court’s comments were made when the apparent choice was no
time for a firearm enhancement at all or the 25 years required by
the section 1202253, subdivision (d) enhancement. That turned out
to be a false dichotomy because the trial court should have stayed
and not stricken the lesser enhancement in the first place, and
could have considered those lesser enhancements in sentencing
Banks.
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The Attorney General contends that Banks forfeited his claim
because his attorney failed to argue for a reduction to a lesser
enhancement at the resentencing hearing. We have exercised our
discretion not to apply the forfeiture doctrine and instead to decide
the case on the merits (see People v. Smith (2003) 31 Cal.4th 1207,
1215; People v. Williams (1998) 17 Cal.4th 148, 161) in order to
avoid allowing an oversight by Banks’s attorney to deprive Banks
of an opportunity to reduce his sentence.3
Nothing in this opinion should be taken as an indication
of how the trial court should exercise its discretion upon remand.
3Because we decide the issue on the merits, we need
not decide Banks’s claim that his attorney rendered ineffective
assistance of counsel by failing to advocate for a reduced
enhancement.
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DISPOSITION
The trial court’s order sentencing appellant is vacated.
On remand, the trial court shall vacate the order striking the
enhancements under section 12022.53, subdivisions (b) and (c)
and instead stay those two enhancements. It shall then
conduct a new sentencing hearing on whether to strike the
subdivision (d) enhancement and impose instead one of the
lesser two enhancements. The trial court is also directed
to prepare an amended abstract of judgment and to forward
a certified copy to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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