People v. Banner ( 2022 )

Filed 4/8/22; on rehearing
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079770
Plaintiff and Respondent,
(Super. Ct. No. BF169096A)
v.
LAMONTE SHERMALE BANNER, OPINION
Defendant and Appellant.
F081144
In Re
(Super. Ct. No. BF169096A)
LAMONTE SHERMALE BANNER,
On Habeas Corpus.
APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa,
Judge.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of sections III, IV and V. Except for those
sections, the remainder of this opinion, including the minority opinion, should be
published.
SEE CONCURRING AND DISSENTING OPINION
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A.
Martinez and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Lamonte Shermale Banner was convicted by jury of two attempted robberies for a
single act involving two restaurant employees. Originally, he raised four claims on
appeal.
One, did the court err in not considering mental health diversion? (See Pen.
Code, 1 § 1001.36.) Two, was Banner’s counsel ineffective in failing to request mental
health diversion? Three, is the second attempted robbery conviction sufficiently proven?
Four, did the court err in ordering certain fines and fees as part of the judgment? We
previously issued an opinion finding no merit in these claims.
Banner had also filed a separate habeas petition adding to the ineffective counsel
claim. 2 We likewise denied the petition.
After the original opinion was filed, Banner petitioned for rehearing raising two
issues. First, he argued we materially misunderstood the mental health diversion law.
Second, he alleged newly enacted Assembly Bill No. 124 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 695, §§ 5-6) (AB 124) applies retroactively and creates a presumption
favoring imposing the lower term of imprisonment in his case.
We granted the rehearing petition and solicited additional briefing from the
parties. Having considered the additional briefs, we reiterate our original conclusions but
find AB 124 necessitates remand for a new sentencing hearing. Accordingly, we will
remand for a new sentencing hearing, but otherwise affirm the judgment.
1 Statutory references are to the Penal Code unless otherwise stated.
2 We ordered the appeal and petition consolidated for decision.
2.
BACKGROUND
Charges
The Kern County District Attorney charged Banner with two counts of attempted
robbery (§ 212.5). The charges included allegations of prior strike and prior serious
felony convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667, subd. (a).)
Trial Evidence
The facts are simple. Banner entered a restaurant and waited in line several
minutes behind multiple customers. 3 Two employees helped each customer. When
Banner reached the cash register at the front of the line, he produced a toy 4 firearm and
demanded money from the employee operating the register. That employee did not
believe the firearm was real and refused to comply.
A second employee, standing near the register and across from Banner, ran away
in fear. Banner subsequently left emptyhanded and was arrested nearby a short time
later. He denied committing the crime.
Verdict and Sentence
Banner was convicted as charged. 5 He was sentenced to serve nine years in state
prison, calculated as the middle term of two years for attempted robbery, doubled for the
prior strike conviction, plus five years for the prior serious felony conviction. 6
3 These specific facts are based on a video surveillance exhibit.
4 It is unclear whether the firearm was real because it was never recovered. The
district attorney did not charge a firearm enhancement and one victim did not believe it
was real. For simplicity, we will assume it was a toy.
5 The court found the prior conviction allegations true in a bifurcated trial.
6
The nine-year sentence was pronounced on Count 1. A concurrent sentence was
imposed on Count 2.
3.
DISCUSSION
I. No Sua Sponte Duty to Consider Mental Health Diversion
Banner argues “[t]he trial court erroneously violated its duty to consider [his]
eligibility for pretrial mental health diversion under section 1001.36.” He asserts “[t]he
trial court had a sua sponte duty to consider … eligibility for mental health diversion ….”
The People maintain “[s]ection 1001.36 contains no language mandating the court
to entertain diversion in any case.” They also claim Banner did not otherwise meet all
criteria for diversion.
We agree with the People. Section 1001.36 does not confer a sua sponte duty on
trial courts to consider mental health diversion. Nonetheless, the record reveals the trial
court was mindful of section 1001.36 and did not believe Banner’s mental health played a
role in this crime.
A. Additional Background
At the sentencing hearing, the court announced it had reviewed “several hundred
pages” of “mental health records ….” It found Banner’s prior “participation in
[treatment] was inconsistent ….” The court noted Banner’s prior “support plan[s] …
failed,” “believe[d] [he did] have mental health issues,” and expressed appreciation for
the Legislature’s enactment of section 1001.36. Finally, the court concluded “the fact
[Banner] was able to conduct the crime in the way he did does not mean that he does not
suffer from a mental health issue. It may just mean that it was somewhat in abeyance at
the time ….”
B. Relevant Statutory Language
Section 1001.36 provides, in part, a “court may, after considering the positions of
the defense and prosecution, grant pretrial diversion to a defendant,” if, among other
factors, “[t]he court is satisfied that the defendant’s mental disorder was a significant
factor in the commission of the charged offense ….” Another factor involves the
4.
“defendant[’s] consent[] to diversion and waive[r]” of his or her constitutional “right to a
speedy trial ….” (See § 1001.36, subd. (b)(1) [listing factors].)
C. Analysis
Based on section 1001.36, Banner presents three statutory-construction arguments
in concluding trial courts have a “sua sponte duty” to consider mental health diversion.
We consider each in turn.
First, Banner claims a defendant’s consent to diversion is irrelevant if the statute
requires a request for diversion. In other words, why would the statute require consent if
the defendant is required to invoke diversion? He bases his claim on the canon “a statute
should not be interpreted in a way that would render other provisions of the statute”
surplusage. (E.g., Ennabe v. Manosa (2014) 58 Cal.4th 697, 719 [“ ‘Courts should give
meaning to every word of a statute if possible, and should avoid a construction making
any word surplusage.’ ”].) His interpretation, however, renders other parts of the statute
surplusage.
For example, section 1001.36, subdivision (b)(3), states:
“At any stage of the proceedings, the court may require the
defendant to make a prima facie showing that the defendant
will meet the minimum requirements of eligibility for
diversion and that the defendant and the offense are suitable
for diversion. The hearing on the prima facie showing shall
be informal and may proceed on offers of proof, reliable
hearsay, and argument of counsel. If a prima facie showing is
not made, the court may summarily deny the request for
diversion or grant any other relief as may be deemed
appropriate.” (Emphasis added.)
This section undoubtedly contemplates a “request for diversion” originating in the
defendant.
Banner’s interpretation would also call into question the Legislature’s mandate
that “[e]vidence of the defendant’s mental disorder shall be provided by the defense ….”
(§ 1001.36, subd. (b)(1)(A).) For this reason, “ ‘like all ... interpretive canons, the canon
5.
against surplusage is a guide to statutory interpretation and is not invariably
controlling.’ ” (People v. Raybon (2021) 11 Cal.5th 1056, 1070, fn. 10.)
Next, Banner argues “[t]he only way to harmonize the phrases ‘the court may,
after considering the positions of the defense and prosecution’ [citation] and ‘[t]he
defendant consents to diversion’ [citation] is to interpret the statute as imposing a sua
sponte duty on the trial court to consider the defendant’s eligibility for pretrial
diversion.” 7 We discern no disharmony in these phrases. Indeed, Banner’s interpretation
injects disharmony into the statute by ignoring the paragraph describing a “request for
diversion” and requiring the defendant to prove eligibility for diversion. (See § 1001.36,
subd. (b)(3).) If the court is required to unilaterally consider diversion, then a “request
for diversion” is without substance.
Finally, Banner states, “[I]f the Legislature intended for the defendant to make a
request for pretrial diversion, the Legislature would have included such a requirement in
the statute.” 8 But the Legislature clearly did not mandate courts to sua sponte consider
mental health diversion in every case. It could have simply included such a requirement
in the statute if that was its intent; it did not.
In our view, the Legislature crafted a scheme wherein the diversionary interest
originates in the defendant or someone other than the defendant, e.g., counsel, 9 the
7 This point is based on the canon courts “ ‘ “must harmonize ‘the various parts of
a statutory enactment … by considering the particular clause or section in the context of
the statutory framework as a whole.’ ” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 961.)
8This argument is based on a commonsense maxim. (See, e.g., People v.
Hillhouse (2003) 109 Cal.App.4th 1612, 1619 [“ ‘Had the Legislature intended
otherwise, it plainly knew how to do so.’ ” ].)
9 In an ideal world, counsel and defendant’s views on diversion would perfectly
align. In reality, those views might differ even when counsel believes he or she is acting
in the client’s best interests.
6.
prosecutor, 10 or the judge. 11 In those situations, a defendant justifiably professing his or
her innocence might well decline diversion and choose instead to put the People to their
burden of proof. Nowhere, however, does the scheme mandate a sua sponte duty for trial
courts to consider mental health diversion. After all, a defendant (or his or her counsel) is
often best positioned to know whether mental health diversion is an appropriate outcome.
(See People v. Graham (2021) 64 Cal.App.5th 827, 835, review granted Sept. 1, 2021,
S269509 [“the onus is placed on the defendant to raise the issue of diversion”].)
Even if we assume trial courts had a sua sponte duty to consider mental health
diversion, Banner would still not prevail. “The California Constitution prohibits a court
from setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’ ”
(In re Celine R. (2003) 31 Cal.4th 45, 59—60.) This means reversal is appropriate “only
if the reviewing court finds it reasonably probable the result would have been more
favorable to the appealing party but for the error.” (Ibid.) We do not.
We reach this conclusion because the trial court here did not believe Banner’s
mental health was a significant factor in the commission of this crime. Such belief is
required to grant diversion. (§ 1001.36, subd. (b)(1)(B).) The limited remedy described
in People v. Frahs (2020) 9 Cal.5th 618 (Frahs) is thus inapplicable.
In Frahs, the Supreme Court held a limited remand is appropriate “when, as here,
the record affirmatively discloses that the defendant appears to meet at least the first
threshold eligibility requirement for mental health diversion — the defendant suffers
from a qualifying mental disorder ….” (Frahs, supra, 9 Cal.5th at p. 640.) But Frahs
was written in context of its application to sentencing hearings occurring before
10A prosecutor might, for example, believe diversion is a suitable resolution after
garnering further information not readily available when the charges were filed.
11 A scenario in which this could occur is where the defendant is mentally
incompetent to stand trial. Section 1001.36 addresses this possibility. (See § 1001.36,
subd. (b)(1)(D) [consent requirement dispensed with when defendant mentally
incompetent].)
7.
section 1001.36 was enacted. (Id. at p. 638 [“defendant was tried and convicted
before section 1001.36 became effective”].) Moreover, Frahs itself recognizes the
procedural limits of its holding. (Id. at p. 640 [not addressing questions not presented].)
To be clear, the record here contained significant evidence of Banner’s mental
illness, which was discussed at the sentencing hearing. 12 Based on the entire record,
however, the court could reasonably conclude Banner’s mental health was not a
significant factor underlying the crime.
To illustrate, Banner testified at the trial and claimed he was innocent. He again
professed innocence in his posttrial statutory probation interview (§ 1203). During
sentencing, he made no statement. His interview with a police officer at the crime scene
was coherent. No witness believed Banner was mentally ill during the incident. Put
simply, nowhere in the record does evidence appear Banner’s mental illness played a
significant role in this crime.
We point this out not to discredit or disparage Banner in any way, and certainly
not to place upon him or any defendant a burden to testify or make any statement
explaining why his or her mental illness culminated in a specific incident. We point it
out only to explain how the trial court reasonably could conclude Banner’s illness was in
“abeyance at the time ….” (People v. Oneal (2021) 64 Cal.App.5th 581, 589 [“trial
court’s factual findings [upheld] if supported by substantial evidence”].)
It is true Banner was found mentally incompetent prior to his trial. But the court
did not declare a doubt as to Banner’s competency until nearly seven full months after his
arrest. (See § 1368.)
12As discussed in detail below, Banner’s counsel advocated for a sentence
involving nonstatutory mental health programming in lieu of incarceration.
8.
In sum, a trial court “may” grant mental health diversion after first broaching its
prospects with the parties, 13 but there is no sua sponte duty to do so in the absence of a
request by the defendant or any other person. 14 Nonetheless, we join our colleagues in
“emphasiz[ing] that our trial courts must give serious consideration to this critical
alternative, for the good not just of mentally ill offenders but, ultimately, society at
large.” (People v. Williams (2021) 63 Cal.App.5th 990, 1005; People v. O’Hearn (2020)
57 Cal.App.5th 280, 300-301.) In conclusion, the trial court here did not err in
pronouncing judgment without first explicitly contemplating diversion absent a request
from Banner. 15
II. Banner Cannot Prove Ineffective Assistance of Counsel
This claim requires us to determine whether Banner received constitutionally
ineffective counsel. Initially, he complained counsel was ineffective “because any
constitutionally effective defense counsel … would have requested mental health
diversion under section 1001.36.”
In the rehearing petition, Banner argues there was no opportunity for him to
present any evidence proving he was eligible for diversion, “such as a medical expert
opinion that may have explained how his mental disorders … played a significant factor
in his attempt to ‘rob’ a … restaurant with a toy gun.” He asserts “[i]f [we] had properly
understood the [law], [we] would have recognized that, at a diversion eligibility hearing
13The court must still comply with all statutory requirements, particularly
“considering the positions of the defense and prosecution ….” (§ 1001.36, subd. (a).)
14Other statutes are similarly structured. (E.g., § 1385 [court may dismiss action
on its own or on application of prosecutor]; see People v. Lee (2008) 161 Cal.App.4th
124, 129 [“no sua sponte duty” arises under section 1385].)
15 Whether Banner’s request for diversion at sentencing would be timely is
currently under review by the Supreme Court in People v. Braden (2021)
63 Cal.App.5th 330, review granted July 14, 2021, S268925. Because that question is not
raised in this case, we neither address it nor express a view on its resolution.
9.
on remand, there is a reasonable probability that [he] could demonstrate through a
medical expert opinion that his mental illness” made him eligible for diversion.
The People originally responded Banner “cannot establish … ineffective
assistance of counsel” “[b]ecause the record does not establish [he] was eligible for
pretrial mental health diversion ….” In response to the argument on rehearing, the
People point out Banner’s argument there is a reasonable probability the court would
grant diversion after considering an expert medical opinion “is based on pure
speculation.”
We again agree with the People. Banner fundamentally misunderstands the
standard of review, which requires us to analyze prejudice based on the record. The
record does not contain sufficient evidence to conclude the court would have granted
diversion.
A. Additional Background
At a pretrial hearing approximately seven months after the crime occurred,
Banner’s counsel declared a doubt regarding Banner’s mental competency to stand trial.
(§ 1368.) Just before trial, counsel indicated the possibility of calling an expert witness
to describe Banner’s mental state during the incident. 16
During sentencing, counsel sought local mental health court as an alternative to
imprisonment. Counsel also argued Banner’s testimony, i.e., disclaiming responsibility,
was a “symptom of his mental illness.” As noted above, the court recognized Banner
suffered from “mental health issues” but believed it “was somewhat in abeyance at the
time of the situation for whatever purpose or whatever reason.”
B. Analysis
The Sixth Amendment guarantees the “ ‘right to the effective assistance of
counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685—686.) “ ‘[T]o establish
16 That witness ultimately did not testify.
10.
a claim of ineffective assistance of counsel, [Banner] bears the burden of demonstrating,
first, that counsel’s performance was deficient because it “fell below an objective
standard of reasonableness [¶] ... under prevailing professional norms.” [Citations.]
Unless [he] establishes the contrary, we shall presume that “counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record
“sheds no light on why counsel acted or failed to act in the manner challenged,” an
appellate claim of ineffective assistance of counsel must be rejected “unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.” [Citations.] If [he] meets the burden of establishing that
counsel’s performance was deficient, he … must show that counsel’s deficiencies
resulted in prejudice, that is, a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” ’ ”
(People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).)
“The object of an ineffectiveness claim is not to grade counsel’s performance. If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice … that course should be followed.” (In re Cox (2003) 30 Cal.4th 974, 1019—
1020 (Cox); People v. Carrasco (2014) 59 Cal.4th 924, 982.) We follow that course
here.
At first glance, the record is unfavorable to counsel. For example, requesting
informal mental health treatment but not statutory mental health diversion appears
inconsistent. It is possible, however, counsel believed Banner did not meet each criterion
for eligibility, specifically the fact mental illness must significantly underlay the crime. 17
17This is true notwithstanding counsel’s sentencing argument Banner’s mental
illness was the reason he denied involvement in the crime.
11.
Most importantly, it does not appear Banner was prejudiced. Again, the trial court
did not believe Banner’s mental illness played a significant role in this crime. Without
believing mental illness was a “significant factor” in the crime, the court could not grant
diversion. (§ 1001.36, subd. (b)(1)(B).)
Banner’s reference to an expert medical opinion is unavailing. There is no such
expert medical opinion in either the trial or appellate record. Essentially, he asks us to
presume his mental illness was a significant factor in the crime based on an expert
opinion that does not exist. This we cannot do. We must rest our analysis not on a
hypothesis but on evidence in the record.
To the extent Banner complains he had no opportunity to develop the record, he is
mistaken. Section 1001.36 was the law at the time he was sentenced. There were
hundreds of pages of records relating to his mental illness including mental competency
evaluations. His attorney did in fact offer mental health as a mitigating factor. The
record was rife with information relating to Banner’s mental health. The court simply
disagreed it was a significant factor in this crime. 18
We conclude Banner has failed to discharge his burden to prove prejudice because
he cannot prove the court would have found him eligible for diversion. The ineffective
assistance claim fails.
III. Crime Sufficiently Proven
Banner believes the evidence insufficiently proved attempted robbery against the
second employee. He argues the evidence “does not support the reasonable inference that
[he] specifically intended to commit a robbery” against the second employee because he
“never took any sort of action against her, such as demanding money …, pointing the
apparent gun …, or threatening to shoot her.”
18 We emphasize this is not a case in which the parties or court arguably were
unaware of mental health diversion. Indeed, the trial court explicitly mentioned the
statute during the sentencing hearing.
12.
The People state “it is reasonably inferable that [Banner] intended to rob anyone
and everyone who had access to and control over the money when he entered the store.”
They assert “ ‘multiple convictions of robbery are proper if force or fear is applied to
multiple victims in joint possession of the property taken.’ ” (People v. Scott (2009)
45 Cal.4th 743, 750 (Scott).) We agree.
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] … We presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008)
45 Cal.4th 1, 27.)
“ ‘To constitute robbery the property must be removed from the possession and
immediate presence of the victim against his will, and such removal must be by force or
fear.’ ” (People v. Nguyen (2000) 24 Cal.4th 756, 761.) “[N]either ownership nor
physical possession is required to establish the element of possession for the purposes of
the robbery statute.” (Scott, supra, 45 Cal.4th at p. 749.) “Two or more persons may be
in joint constructive possession of a single item of personal property, and multiple
convictions of robbery are proper if force or fear is applied to multiple victims in joint
possession of the property taken.” (Ibid.)
“ ‘ “[A] store employee may be the victim of a robbery even though he is not its
owner and not at the moment in immediate control of the stolen property.” ’ ” (Scott,
supra, 45 Cal.4th at p. 751.) “[A]ll employees on duty have constructive possession of
13.
their employer’s property and may be separate victims of a robbery.” 19 (People v.
Bradford (2010) 187 Cal.App.4th 1345, 1349.)
With these principles in mind, we conclude the evidence readily supports the
jury’s verdict. The evidence disclosed Banner entered the restaurant and stood in line for
several minutes while observing two employees assist multiple customers. When Banner
reached the front of the line, he produced a toy firearm and demanded money. At that
point, both employees were in close proximity to one another and the cash register.
“As a matter of common knowledge and experience, those who commit robberies
are likely to regard all employees as potential sources of resistance ….” (Scott,
supra, 45 Cal.4th at p. 755.) The jury could reasonably infer Banner was acutely aware
two employees were obstacles in his path. The jury could also reasonably conclude he
waited for the employees to converge before attempting the robbery in an effort to
maximize control and success. This is consistent with an intent to rob both employees.
Accordingly, the evidence sufficiently proved both attempted robberies.
IV. Fines and Fees Properly Imposed
As pertinent, the trial court imposed a $300 restitution fine, an $80 operations fee,
and a $60 conviction fee as part of the judgment. 20 Banner did not object to their
imposition.
19 Although not in issue here, we make clear a “long line of California cases …
have found evidence sufficient to establish that employees working at a business
premises were in constructive possession of the employer’s property during a robbery,
based upon their status as employees and without examining whether their particular
duties involved access to or control over the property stolen.” (Scott, supra, 45 Cal.4th at
p. 752, emphasis added.) This is so “because of their relationship to the property or its
owner, [employees] have the right to resist the taking ….” (Id. at p. 758.) That was
borne out in this case when the second employee resisted the taking by fleeing and
notifying law enforcement.
20
These obligations were imposed pursuant to sections 1202.4, 1465.8, and
Government Code, section 70373, respectively.
14.
“In general, a defendant who fails to object to the imposition of fines, fees, and
assessments at sentencing forfeits the right to challenge those fines, fees, and assessments
on appeal.” (People v. Greeley (2021) 70 Cal.App.5th 609, 624.) This is particularly
true in cases like this where sentencing occurred after the Dueñas court declared a
constitutional right to have courts determine ability to pay prior to imposing mandatory
fines and fees. 21 (Greeley, supra, at p. 624.) Because Banner did not object, we
conclude he forfeited this claim.
Alternatively, Banner contends his counsel was ineffective for failing to object
post-Dueñas. He bears the burden to demonstrate “ ‘ “ ‘there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. … ” ’ ” … Reviewing courts defer to counsel’s reasonable tactical decisions
in examining a claim of ineffective assistance of counsel [citation], and there is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” [Citation.] Defendant’s burden is difficult to carry on direct appeal …: “
‘Reviewing courts will reverse … [on direct appeal] on the ground of inadequate counsel
only if the record on appeal affirmatively discloses that counsel had no rational tactical
purpose for [his or her] act or omission.’ ” ’ ” (People v. Vines (2011) 51 Cal.4th 830,
876.)
Based on the record, counsel may well have believed an objection to these
financial obligations was futile. The only evidence relative to ability to pay disclosed
Banner’s assets and net monthly income exceeded the total obligation imposed by the
21
The decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 is the basis for
Banner’s claim. It was published nearly seven full months prior to Banner’s sentencing
hearing.
15.
court. 22 For these reasons we cannot find counsel ineffective nor can we find the court
erred in its judgment. 23
V. Habeas Petition
In the habeas petition, Banner asserts his trial counsel was ineffective because she
did not request diversion due to inadequate funding “and the Public Defender’s Office
had been unsuccessful in requesting diversion in other cases.” 24 He argues “[i]t was
incumbent upon trial counsel to request diversion and have the trial court improperly
deny the request on the basis of inadequate funding.” He concludes, “there is a
reasonable chance that the trial court would have granted diversion if trial counsel had
made the request ….” We disagree.
As recited above, to prevail on an ineffective counsel claim, Banner must prove
prejudice. (Bell, supra, 7 Cal.5th at p. 720.) We need not determine if trial counsel was
deficient because Banner cannot prove prejudice. (See Cox, supra, 30 Cal.4th at
pp. 1019—1020.) Were we to assume trial counsel’s rationale was deficient, it does not
change the fact the trial court did not believe Banner’s mental illness was a significant
factor in these attempted robberies. Nothing in the trial record or in the habeas petition
establishes a reasonable probability the trial court would have granted diversion. (See
22The income statistics are contained in Banner’s postconviction probation
interview. (§ 1203.) The fines and fees imposed reflect the statutory minimum.
23 To the extent Banner claims the fines and fees were constitutionally excessive,
we disagree. Four hundred and forty dollars is not excessive for attempting to rob
multiple people with a toy firearm. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co.
(2005) 37 Cal.4th 707, 728 [proportionality is the touchstone of Eighth Amendment
analysis].)
24 This assertion is based on an asserted conversation between Banner’s appellate
counsel and Banner’s trial counsel. Of course, we cannot pass upon the credibility of this
assertion. Ordinarily, an evidentiary hearing is necessary to resolve credibility. Here,
however, an evidentiary hearing is unnecessary because Banner is not entitled to relief
even if appellate counsel’s assertion is true and accurate.
16.
ante, Discussion, II. B., § 1001.36, subd. (b)(1)(B).) For that reason, the petition lacks
merit.
VI. AB 124 Applies Retroactively and Justifies Remand
AB 124, enacted after the sentencing hearing in this case, recently amended
section 1170. As relevant, it now reads:
“[U]nless the court finds that the aggravating circumstances
outweigh the mitigating circumstances [such] that imposition
of the lower term would be contrary to the interests of justice,
the court shall order imposition of the lower term if any of the
following was a contributing factor in the commission of the
offense:
“(A) The person has experienced psychological, physical, or
childhood trauma, including, but not limited to, abuse,
neglect, exploitation, or sexual violence.” (§§ 1170, subds.
(b)(6) & (b)(6)(A).)
Banner claims this sentencing presumption applies retroactively on appeal. The People
agree, but argue remand is futile for two reasons: (1) because mental illness itself does
not equal “trauma” and (2) the trial court did not otherwise believe Banner’s mental
illness was a “contributing factor in the commission of the offenses.”
We agree with the parties AB 124 applies retroactively to nonfinal cases on direct
appeal. We also find it warrants remand for a new sentencing hearing in this case for the
reasons discussed below.
A. Retroactivity
“[A]bsent evidence to the contrary, [we presume] the Legislature intended
amendments to statutes that reduce punishment for a particular crime to apply to all
whose judgments are not yet final on the amendments’ operative date.” (People v. Lopez
(2021) 73 Cal.App.5th 327, 344.) This includes “statutes that merely ma[k]e a reduced
punishment possible.” (Frahs, supra, 9 Cal.5th at p. 629.) Because AB 124 and its
17.
implementation are silent regarding retroactivity, it does apply to all nonfinal cases on
appeal. (Lopez, supra, at p. 344.; In re Estrada (1965) 63 Cal.2d 740, 744-746.)
B. Analysis
Our analysis proceeds in two steps. First, we examine the statute and conclude
psychological trauma stemming from mental illness properly invokes the lower term
presumption in section 1170, subdivision (b)(6). Second, we apply the statute to the facts
in this case and hold the trial court’s findings do not preclude the possibility it might
conclude psychological trauma based on mental illness was a factor contributing to
Banner’s crime.
i. Psychological Trauma and Mental Illness
As quoted above, the new AB 124 sentencing presumption applies when a “person
has experienced psychological, physical, or childhood trauma, including, but not limited
to, abuse, neglect, exploitation, or sexual violence,” and that trauma “was a contributing
factor in the commission of the offense ….” (§§ 1170, subds. (b)(6) & (b)(6)(A).) In
opposing remand for a new sentencing hearing, the People argue “mental illness [does
not] constitute psychological trauma.” While perhaps literally true, we believe it strains
credulity to conclude mental illness cannot result in psychological trauma.
The criminal justice system is saturated with mentally ill persons. To California
judges regularly presiding in criminal courtrooms, it takes no special insight to appreciate
a correlation between mental illness, psychological trauma, indigency, and crime.
More directly, the statute’s plain language states trauma is “not limited to abuse,
neglect, exploitation, or sexual violence.” (§ 1170, subds. (b)(6)(A), emphasis added.)
While the People prefer to construe the statute to apply to “experiences” other than
mental illness, it simply is not so limited. Because the statute’s language is plain and
unambiguous, “ ‘our inquiry ends.’ ” (In re D.B. (2014) 58 Cal.4th 941, 945; People v.
Dieck (2009) 46 Cal.4th 934, 939 [“ ‘ “If there is no ambiguity in the language, we
presume the Legislature meant what it said and the plain meaning of the statute
18.
governs.” ’ ”].) Accordingly, we hold psychological trauma based on mental illness may
be a circumstance qualifying for the lower term presumption in section 1170,
subdivision (b)(6). To be clear, we do not hold mental illness alone qualifies for the
lower term presumption. Psychological trauma must attend the illness, and that trauma
must contribute to the crime under section 1170, subdivision (b)(6).
ii. Contributing Factor
The remaining issue is whether remand is justified in this case. The answer here
turns on whether the court already concluded mental illness was not a contributing factor
to the crime.
The People assert “the record clearly indicates the trial court determined
[Banner’s] mental illness was not a contributing factor in the commission of the
offenses.” Banner counters “a ‘contributing factor’ is something less than a ‘significant
factor.’ Therefore, even if [his] mental illness was not a ‘significant factor’ in [the]
crime, it could have been a ‘contributing factor’ in the crime.” Banner has the better
argument. We agree a contributing factor (§ 1170, subd. (b)(6)) is less than a significant
factor (§ 1001.36, subd. (b)(1)(B)). The difference is inherent in the respective statutes.
Under section 1001.36 mental health diversion, both conviction and imprisonment
are entirely avoided. Under section 1170, subdivision (b)(6), neither conviction nor
imprisonment are avoided, but instead there is a rebuttable presumption favoring a lower
term prison sentence. A standard resulting in neither conviction nor imprisonment is
properly more onerous than a standard that potentially mitigates a prison sentence.
Because the respective statutory standards are different, the trial court’s
conclusion Banner’s mental illness was not a significant factor in the crime does not
subsume a finding it was a lesser contributing factor. Hypothetically, a court could find
psychological trauma induced by mental illness a contributing factor in a crime
notwithstanding the fact the person was lucid at the time of the crime. (Cf. Frahs, supra,
9 Cal.5th at pp. 638-639.)
19.
We recognize the trial court did not formally find Banner’s mental illness a factor
in mitigation at the sentencing hearing. 25 The Rules of Court list “suffering from a
mental or physical condition that significantly reduced culpability for the crime” as a
mitigating factor. (Cal. Rules of Court, rule 4.423, subd. (b)(2).) The Supreme Court has
made clear mental illness may underlay a crime without also significantly reducing
culpability. (Frahs, supra, 9 Cal.5th at pp. 638-639.) Accordingly, not finding mental
illness a mitigating factor under the Rules of Court does not preclude a separate finding
psychological trauma is a contributing factor to the crime under section 1170,
subdivision (b)(6).
In a similar vein, we generally expect arguments developing mental illness as
mitigation to appear in the record in one form or another. Classic examples include plea
negotiations, trial proceedings, and sentencing hearings. We believe, however, neither
Banner nor the court had a meaningful incentive to assess whether mental illness was a
limited but nonetheless “contributing factor” in the crime. (Cf. Frahs, supra, 9 Cal.5th at
pp. 637-638 [record is likely incomplete relative to statutory factors enacted after
judgment pronounced].)
In these circumstances, “the appropriate remedy is to remand for resentencing
unless the record ‘clearly indicate[s]’ that the trial court would have reached the same
conclusion” under the law as it now exists. (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391.) The record here does not make it clear the court would have selected the middle
term when pronouncing judgment had AB 124 been in effect at the time. A remand is
warranted. We express no opinion on whether Banner’s mental illness was in fact a
contributing factor to the crime, or whether the “the lower term would be contrary to the
25The court recognized the enactment of mental health diversion itself as
“weigh[ing]” in mitigation and “considered that” at the sentencing hearing. But it did not
otherwise state Banner’s mental illness was in any form a mitigating factor. The
postconviction probation report (§ 1203) did not list mental illness as a mitigating factor.
20.
interests of justice ….” (§ 1170, subd. (b)(6).) Those are questions best left to the trial
court to answer in the first instance.
DISPOSITION
The case is remanded and the trial court is directed to resentence Banner
consistent with section 1170, subdivision (b)(6). The judgment is otherwise affirmed.
The petition for writ of habeas corpus consolidated with this appeal (previously
numbered F081144) is denied.
SNAUFFER, J.
I CONCUR:
DE SANTOS, J.
21.
DETJEN, Acting P. J., Concurring and Dissenting.
I concur in the majority’s conclusions: (1) that Penal Code 1 section 1001.36 does
not confer a sua sponte duty on trial courts to consider mental health diversion (maj. opn.,
ante, at p. 4); (2) that Lamonte Shermale Banner (defendant) failed to meet his burden of
establishing that trial counsel’s failure to request mental health diversion pursuant to
section 1001.36 resulted in prejudice (maj. opn., ante, at pp. 11, 12); (3) that the evidence
sufficiently proved defendant intended to commit robbery against each employee (maj.
opn., ante, at p. 14); (4) that defendant forfeited his claim that the trial court erred in
imposing the fine and fees at sentencing (maj. opn., ante, at pp. 2, 15); (5) that defendant
failed to meet his burden of establishing trial counsel was ineffective for failing to object
to the imposition of fines and fees at sentencing (maj. opn., ante, at pp. 15-16); and (6) in
denying defendant’s habeas petition (maj. opn., ante, at pp. 16-17).
I respectfully dissent, however, from the majority’s conclusion that evidence of
mental illness in the trial court record requires remand for resentencing under newly
enacted subdivision (b)(6)(A) of section 1170.
In People v. Frahs (2020) 9 Cal.5th 618 (Frahs), our Supreme Court concluded
that a statute, which “by design and function provides a possible ameliorating benefit for
a class of persons,” is retroactive to all persons whose judgments are not yet final at the
time the statute took effect. (Id. at p. 624.)
I agree that subdivision (b)(6)(A) of section 1170, which was added by Assembly
Bill No. 124 (2021-2022 Reg. Sess.) (Assem. Bill No. 124) 2 and became effective
1 All further statutory references are to the Penal Code unless otherwise noted.
2 During the 2021-2022 legislative term, three bills proposing changes to section
1170 in a variety of ways were introduced. They were Assembly Bill No. 124 (Stats.
2021, ch. 695, § 5), Assembly Bill No. 1540 (Stats. 2021, ch. 719, § 2), and Senate Bill
No. 567 (Stats. 2021, ch. 731, § 1.3). All three bills were passed by the Legislature in
September 2021, and approved by the Governor and filed with the Secretary of State on
October 8, 2021. Senate Bill No. 567 bears the highest chapter number and is presumed
to be the last of the three approved by the Governor. (Gov. Code, § 9510.) As such,
January 1, 2022, applies retroactively to defendant’s judgment. Just as with the
amendments made by Proposition 57 (the Public Safety and Rehabilitation Act of 2016), 3
and with the newly enacted section 1001.36, 4 this amendment to section 1170 provides
an ameliorating benefit for a class of persons. I also agree that remand is warranted when
the evidence appears to show a defendant is a member of that class of persons. (Frahs,
supra, 9 Cal.5th at p. 624.) There is no evidence in the record, however, that defendant
comes within that class of persons.
The subdivision states: “Notwithstanding paragraph (1), and unless the court finds
that the aggravating circumstances outweigh the mitigating circumstances that imposition
of the lower term would be contrary to the interests of justice, the court shall order
imposition of the lower term if any of the following was a contributing factor in the
commission of the offense: [¶] (A) The person has experienced psychological, physical,
or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence.” (§ 1170, subd. (b)(6)(A).)
Senate Bill No. 567 prevails over Assembly Bill No. 124. (Gov. Code, § 9605, subd.
(b).) To the extent there are conflicts between the three bills, Senate Bill No. 567 takes
precedence. (In re Thierry S. (1977) 19 Cal.3d 727, 738-739.) As to subdivision
(b)(6)(A) of section 1170, however, the substantive language in Assembly Bill No. 124,
Senate Bill No. 1540, and Senate Bill No. 567 are not in conflict. For ease of discussion,
I refer to Assembly Bill No. 124 rather than Senate Bill No. 567.
3 “Proposition 57 prohibits prosecutors from charging juveniles with crimes
directly in adult court. Instead, they must commence the action in juvenile court. If the
prosecution wishes to try the juvenile as an adult, the juvenile court must conduct what
we will call a ‘transfer hearing’ to determine whether the matter should remain in
juvenile court or be transferred to adult court. Only if the juvenile court transfers the
matter to adult court can the juvenile be tried and sentenced as an adult.” (People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 303 [referring to Welf. & Inst. Code, § 707,
subd. (a)].)
4 “In June 2018, the Legislature enacted . . . sections 1001.35 and 1001.36, which
created a pretrial diversion program for certain defendants with mental health disorders.”
(Frahs, supra, 9 Cal.5th at p. 624, fn. omitted, citing Stats. 2018, ch. 34, § 24.)
2.
In determining the Legislature’s intent, we turn first to the words of the statute.
When the statutory language is clear and unambiguous, it establishes what was intended
by the Legislature. (People v. Statum (2002) 28 Cal.4th 682, 689-690.) The plain
language of the amended statute provides no support for the majority’s conclusion.
The statute does not list mental illness in the identified class of persons. It lists:
“[P]sychological . . . trauma, including, . . . abuse,” “psychological . . . trauma, including,
. . . neglect,” “psychological . . . trauma, including, . . . exploitation,” and “psychological
. . . trauma, including, . . . sexual violence.” (§ 1170, subd. (b)(6)(A).) It does not read,
psychological trauma, including mental illness. If it did, the statute would list mental
illness among the conditions that constitute psychological trauma. The majority
recognizes this when they state they “do not hold mental illness alone qualifies for the
lower term presumption.” (Maj. opn., ante, at p. 19.)
The majority then concludes that “psychological trauma stemming from mental
illness” (maj. opn., ante, at p. 18), and “psychological trauma based on mental illness”
(maj. opn., ante, at pp. 18, 19), and “[p]sychological trauma [that] attend[s] [mental]
illness” (maj. opn., ante, at p. 19), requires remand for resentencing under section 1170,
subdivision (b)(6)(A) opining that “it strains credulity to conclude mental illness cannot
result in psychological trauma.” (Maj. opn., ante, at p. 18.)
I do not disagree that psychological trauma can “stem[] from,” be “based on,” or
“attend” mental illness. The problem is there is no evidence in the record of
psychological trauma. At oral argument, defendant agreed with this conclusion. And this
conclusion is borne out by what is in the record. At sentencing, defense counsel provided
the trial court with mental health records relating to defendant. Additionally, there were
competency reports in the court file generated in an earlier Evidence Code section 1370
evaluation, as well as associated state hospital commitment information. In his briefing
to this court, defendant points to his diagnosis of schizoaffective disorder. The trial court
found defendant had mental health issues. It stated:
3.
“I think the records are pretty clear that [defendant] certainly suffers from
certain issues, including obsessive compulsive disorder, at the very least.
There have been some other diagnosis [sic] that have been not as
consistent, but that diagnosis I have seen throughout the documents that
were provided.” 5
In Frahs, our Supreme Court concluded “a conditional limited remand for the trial
court to conduct a mental health diversion eligibility hearing [was] warranted [because]
the record affirmatively disclose[d] that the defendant appear[ed] to meet at least the first
threshold eligibility requirement for mental health diversion—[he] suffer[ed] from a
qualifying mental disorder.” (Frahs, supra, 9 Cal.5th at p. 640.) Here, unlike in Frahs,
the record not only fails to affirmatively disclose that defendant is in the class of persons
covered by the amendment made to section 1170, but the record is devoid of any
evidence he is. In reaching a decision on appeal, an appellate court is governed by the
record. (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207.) “We must
rest our analysis not on a hypothesis but on evidence in the record.” (Maj. opn., ante, at
p. 12.)
By remanding for resentencing based on Assembly Bill No. 124 when there is
evidence of mental illness, but no evidence of psychological trauma, because with mental
illness there may be psychological trauma, the majority broadens the class of persons
beyond those listed in the plain language of the statute. “[E]xcept in the most extreme
cases where legislative intent and the underlying purpose are at odds with the plain
language of the statute, an appellate court should exercise judicial restraint, stay its hand,
5
I disagree with the majority’s assertion that the trial court “did not formally find
[defendant’s] mental illness a factor in mitigation at the sentencing hearing.” (Maj. opn.,
ante, at p. 20.) The record clearly shows the trial court did find defendant’s mental
illness to be a factor in mitigation. It stated: “I will also note that it may not serve as an
official circumstance in mitigation, but I will note that under Penal Code [s]ection
1101.—think it’s 34, it is a mental health diversion program—or statute that has now
been passed by the state [L]egislature and is law, and so I do consider that while maybe
not an official factor in mitigation, it certainly weighs, I think, in mitigation and I have
considered that.” (Italics added.)
4.
and refrain from rewriting a statute to find an intent not expressed by the Legislature.”
(Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1700.) “ ‘We may not,
. . . rewrite the law or give the words an effect different from the plain and direct import
of the terms used.’ [Citation.]” (California State University, Fresno Assn., Inc. v.
County of Fresno (2017) 9 Cal.App.5th 250, 268.)
The judicial construction given to subdivision (b)(6)(A) of section 1170 by the
majority swallows the rule and leads to absurd results. Given their construction, it would
follow that: a defendant with a prior prison term should have his or her case remanded
for resentencing because psychological trauma could well “stem[] from” such an
experience; or, when evidence in the trial court indicated a defendant took medication for
back pain, the case should be remanded for resentencing as physical trauma may “attend”
such pain; or, when evidence suggests a defendant suffered the loss of a parent in
childhood, remand for resentencing should occur as childhood trauma may be “based on”
such an event.
I decline the majority’s invitation to add a group of persons—in this case,
defendants who have a mental illness, but no evidence of psychological trauma—to the
class of persons designated by the Legislature to benefit from the subdivision of section
1170 added by Assembly Bill No. 124. To do so violates established rules of statutory
construction and canons of appellate review. I would affirm the judgment in its entirety
and not remand for resentencing.
DETJEN, Acting P. J.
5.