People v. O'Bannon ( 2024 )

Filed 10/15/24
CERTIFIED FOR PARTIAL PUBLICATION*
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B327483
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA149850)
v.
RUSSELL LAJUEAR O’BANNON, Jr.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Roger Ito, Judge. Affirmed.
Rachel Varnell, 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, Zee Rodriguez and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 9.76(b) and
976.1, this opinion is certified for publication with the exception
of Discussion sections I.B and II.
_________________________
A jury convicted Russell O’Bannon of crimes arising from
his assault on another person with a deadly weapon. The trial
court imposed a sentence that included an upper term on one
count and a five-year enhancement under Penal Code1 section
667, subdivision (a)(1). On appeal, O’Bannon contends that his
trial counsel provided ineffective assistance by failing to ask the
trial court to strike or to dismiss the enhancement under Senate
Bill No. 81. That law gives trial courts discretion to strike or to
dismiss an enhancement based on consideration of specified
mitigating circumstances. In the published portion of this
opinion, we address O’Bannon’s argument that a mitigating
circumstance applied to him because his enhancement is based
on a prior conviction more than five years old. O’Bannon
measures the age of his prior conviction from the date of the prior
conviction to the date he was sentenced on the current offense.
However, we conclude that a prior conviction’s age is properly
measured from the date of the prior conviction to the date the
defendant committed his current offense. In the nonpublished
portion of this opinion, we reject his other contention, that the
trial court violated Senate Bill No. 567 by improperly imposing
the upper term based on aggravating factors not found true by a
jury or stipulated to by him. We therefore affirm the judgment.
1
All further undesignated statutory references are to the
Penal Code.
2
BACKGROUND
This case arises out of O’Bannon’s attack on a fellow
resident at a Salvation Army home on January 30, 2019.
O’Bannon slashed the victim’s face with a razor, leaving a scar.
Based on this, a jury convicted O’Bannon of assault with a
deadly weapon (§ 245, subd. (a)(1); count 1) and mayhem (§ 203;
count 4).2 As to count 1, the jury found that he personally
inflicted great bodily injury (§ 12022.7, subd. (a)) and, as to count
4, the jury found that he personally used a deadly and dangerous
weapon (§ 12022, subd. (b)(1)). The trial court then found that
O’Bannon had a prior serious felony (§ 667, subd. (a)(1)) and a
prior serious or violent felony within the meaning of the Three
Strikes law.
At the December 2020 sentencing hearing, the People
asked the trial court to dismiss the prior strike and the
enhancements based on a directive from the District Attorney.
The trial court denied the motion and sentenced O’Bannon on
count 4 to the upper term of eight years, doubled to 16 years
based on the strike, plus five years for the prior serious felony.
The trial court imposed and stayed the sentence on the weapon
enhancement and on count 1.
2
O’Bannon was originally charged with count 1 for assault
with a deadly weapon. An amended information added count 2
for aggravated mayhem and count 3 for residential burglary, but
count 3 was later dismissed. The information was again
amended to replace count 2 with count 4 for ordinary mayhem.
3
On direct appeal, this division remanded for resentencing.
(People v. O’Bannon (Mar. 23, 2022, B309426) [nonpub. opn.].)3
On remand, the District Attorney’s office amended the
information to allege three aggravating circumstances:
O’Bannon had prior adult convictions and sustained juvenile
petitions that were numerous or of increasing seriousness (Cal.
Rules of Court, rule 4.421(b)(2)), he had served a prior prison
term (id., rule 4.421(b)(3)), and he previously performed poorly on
probation (id., rule 4.421(b)(5)).
At the December 2, 2022 resentencing hearing, defense
counsel asked the trial court to strike the five-year enhancement
but did not expressly cite Senate Bill No. 81, which gives trial
courts discretion to strike or dismiss enhancements based on
specified mitigating circumstances. The trial court declined to
exercise its discretion to strike the enhancement, citing
O’Bannon’s “various and sundry criminal violations, which
include[ ] extreme acts of violence, in particular, against the
victim in this case who will have a lifelong lasting scar. I think it
was from his ear down to his mouth. That was extremely severe,
extremely disfiguring, and something that subjected that
individual to obvious physical and emotional trauma.”
As to whether to impose the upper term based on the newly
alleged aggravating circumstances, the trial court and prosecutor
agreed, without objection from defense counsel, that they did not
have to be submitted to a jury. The trial court then reviewed
O’Bannon’s criminal history as reflected in a 19-page certified rap
sheet. Based on it, the trial court found all three aggravating
3
We have taken judicial notice of the record in that matter.
(Evid. Code, § 452, subd. (d).)
4
circumstances true beyond a reasonable doubt and reimposed the
21-year prison term, which included the upper term on count 4
and the five-year enhancement.
DISCUSSION
I. Senate Bill No. 81
O’Bannon contends that his counsel rendered ineffective
assistance by failing to ask that his section 667, subdivision (a),
five-year enhancement be stricken or dismissed under Senate Bill
No. 81. As we explain, his counsel had no obligation to raise
Senate Bill No. 81 because it did not apply to O’Bannon.
A. General principles
Section 1385, subdivisions (a) and (b), provide that a trial
court may strike or dismiss an enhancement in the furtherance of
justice. Effective January 1, 2022, Senate Bill No. 81 (2021–2202
Reg. Sess.) (Stats. 2021, ch. 721) added subdivision (c) to section
1385 as follows: “Notwithstanding any other law, the court shall
dismiss an enhancement if it is in the furtherance of justice to do
so, except if dismissal of that enhancement is prohibited by any
initiative statute.” “In exercising its discretion under this
subdivision, the court shall consider and afford great weight to
evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present.
Proof of the presence of one or more of these circumstances
weighs greatly in favor of dismissing the enhancement, unless
the court finds that dismissal of the enhancement would
endanger public safety,” meaning there is a likelihood that
dismissing the enhancement would result in physical injury or
serious danger to others. (§ 1385, subd. (c)(2).)
5
Two mitigating circumstances are relevant here. First,
where multiple enhancements are alleged in a single case, all
enhancements “beyond a single enhancement shall be dismissed.”
(§ 1385, subd. (c)(2)(B).) Second, the “enhancement is based on a
prior conviction that is over five years old.” (§ 1385,
subd. (c)(2)(H).)
O’Bannon claims that his trial counsel rendered ineffective
assistance by failing to argue that these two mitigating
circumstances applied to him. To establish a claim of ineffective
assistance of counsel, O’Bannon must show that his counsel’s
performance fell below an objective standard of reasonableness
and prejudice. (See generally Strickland v. Washington (1984)
466 U.S. 668, 687–688.) There is a strong presumption that
counsel’s conduct fell within the wide range of reasonable
professional assistance. (People v. Stanley (2006) 39 Cal.4th 913,
954.) Prejudice occurs where there is a reasonable probability
that, but for counsel’s unprofessional errors, the defendant would
have achieved a more favorable outcome. (Strickland, at p. 694;
Stanley, at p. 954.) A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome. (Strickland,
at p. 694; Stanley, at p. 954.)
As we next explain, Senate Bill No. 81 did not apply to
O’Bannon. Therefore, O’Bannon cannot establish that his trial
counsel either erred in not raising that law below or prejudice.
B. Senate Bill No. 81 is not applicable to strike
convictions
O’Bannon first argues that multiple (two) enhancements
were alleged in this case, and therefore one had to be dismissed
under section 1385, subdivision (c)(2)(B). His argument assumes
a prior strike is an “enhancement” under that subdivision.
6
However, as O’Bannon concedes in his reply brief on appeal, the
weight of authority is against his position.
The lead case is People v. Burke (2023) 89 Cal.App.5th 237(Burke). Burke, at page 243, applied usual principles of statutory
interpretation to interpret the term “enhancement” in section
1385, subdivision (c). According to the term’s established legal or
technical meaning, a sentence enhancement is a term of
imprisonment added to the base term. (Burke, at p. 243.) “It is
equally well established that the Three Strikes law is not an
enhancement; it is an alternative sentencing scheme for the
current offense.” (Ibid.) Because the “plain language of
subdivision (c) of section 1385 applies only to an ‘enhancement,’
and the Three Strikes law is not an enhancement,” section 1385,
subdivision (c)’s provisions regarding enhancements do not apply
to the Three Strikes law. (Burke, at p. 244; accord, People v. Dain
(2024) 99 Cal.App.5th 399, 410–411, review granted May 29,
2024, S283924; People v. Olay (2023) 98 Cal.App.5th 60, 64–69
(Olay); cf. People v. Serrano (2024) 100 Cal.App.5th 1324, 1336–
1338 [§ 1385, subd. (c) inapplicable to premeditation and
deliberation findings]; People v. McDowell (2024) 99 Cal.App.5th
1147, 1154 [§ 1385, subd. (c) inapplicable to § 236.1, subd. (c)(2)’s
alternative penalty provision].)
O’Bannon argues that Burke’s analysis is faulty because it
fails to address subdivision (c)(2)(G) of section 1385. That
subdivision states that a criminal conviction or “juvenile
adjudication[ ] that trigger[s] the enhancement or enhancements
applied in the current case” is a mitigating circumstance.
(§ 1385, subd. (c)(2)(G), italics added.) Because it does not appear
that a juvenile adjudication triggers any enhancement (see
generally Olay, supra, 98 Cal.App.5th at p. 66), O’Bannon argues
7
that the subdivision is ambiguous. He therefore posits that
because a juvenile adjudication can be a strike under the Three
Strikes law, the term “enhancement” in section 1385, subdivision
(c), includes prior strikes. Olay, at pages 66 to 67, acknowledged
the potential ambiguity but nonetheless agreed with Burke’s
ultimate conclusion. The court expressed skepticism that the
Legislature would have rejected the well-established legal
meaning of “enhancement” in “a roundabout manner by obliquely
referencing ‘juvenile adjudications’ as one of the relevant
mitigating circumstances. . . . If the Legislature had wanted
section 1385, subdivision (c) to apply to prior strikes as well as to
enhancements as legally defined, it would have said so.” (Olay,
at p. 67.)
Senate Bill No. 81’s legislative history also “confirms the
Legislature had no such intent.” (Olay, supra, 98 Cal.App.5th at
p. 67.) A June 2021 bill analysis “distinguished an ‘enhancement’
from an ‘alternative penalty scheme’ like the Three Strikes law”
and stated that “ ‘[t]he presumption created by this bill applies to
enhancements [ ] but does not encompass alternative penalty
schemes.’ (Assem. Com. on Public Safety, Analysis of Sen. Bill
No. 81, supra, as amended Apr. 27, 2021, at p. 6, italics added.)”
(Olay, at p. 67.)
We agree with Burke and Olay, that an alternative penalty
scheme such as the Three Strikes law is not an enhancement
within the meaning of section 1385, subdivision (c). Had the
Legislature intended to depart from the clear and longstanding
case law that an enhancement is different from an alternative
sentencing scheme, it would have said so. O’Bannon’s trial
counsel therefore did not provide ineffective assistance by failing
8
to argue that O’Bannon had multiple enhancements within the
meaning of section 1385, subdivision (c)(2)(B).
C. Enhancement based on conviction over five years old
O’Bannon contends his counsel rendered ineffective
assistance by failing to argue that the mitigating circumstance in
section 1385, subdivision (c)(2)(H), for an enhancement “based on
a prior conviction that is over five years old” applied to him. He
argues that his November 23, 2015 prior conviction was over five
years old when he was resentenced on the current offenses in
December 2022. The People counter that the prior conviction was
just three years old when he committed the current offenses on
January 30, 2019. The parties therefore disagree about the
statute’s meaning, whether the relevant timeframe runs from the
date of the prior conviction to either the date of sentencing on the
current offenses or when the defendant committed them.
Employing the usual rules of statutory interpretation, we agree
with the People.
In interpreting a statute, we must ascertain the
Legislature’s intent so as to effectuate the law’s purpose. (1550
Laurel Owner’s Assn., Inc. v. Appellate Division of Superior Court
(2018) 28 Cal.App.5th 1146, 1151.) To determine that intent, we
first examine the statute’s words, giving them their ordinary,
commonsense meaning and viewing them in their statutory
context. (Ibid.) If the meaning is not clear, we may resort to
extrinsic sources, including legislative history. (People v.
Coronado (1995) 12 Cal.4th 145, 151.) “Ultimately we choose the
construction that comports most closely with the apparent intent
of the lawmakers, with a view to promoting rather than defeating
the general purpose of the statute.” (Allen v. Sully-Miller
9
Contracting Co. (2002) 28 Cal.4th 222, 227.) We reject any
interpretation that would lead to absurd consequences. (Ibid.)
Here, we interpret the meaning of “a prior conviction that
is over five years old.” (§ 1385, subd. (c)(2)(H).) Stated otherwise,
how is the age of a prior conviction calculated? The face of the
statute does not answer this question. The five years could be
determined by, for example, (1) the date the defendant committed
the current offense, (2) the date the defendant is convicted of the
current offense, or (3) the date the defendant is sentenced or
resentenced on the current offense. The statute does not specify
which of these dates should be used.
Senate Bill No. 81’s legislative history is also silent on the
issue. However, the Committee on the Revision of the Penal
Code 2020 Annual Report and Recommendations (the Report),
which recommended the amendments to section 1385 that
ultimately became Senate Bill No. 81, offers some insight to
legislative intent. (See Sen. Rules Com., Off. of Sen. Floor
Analyses, Floor Analysis Sept. 8, 2021, p. 5.) The Report
endorsed dismissing sentencing enhancements that are based on
a prior conviction over five years old. (Report, p. 37.) The Report
stated that its recommendation “builds on existing California
Rules of Court that guide judges on what circumstances they
should consider in aggravation and mitigation in imposing a
felony sentence, such as prior abuse, recency and frequency of
prior crimes, and mental or physical condition of the defendant.” 4
(Id. at p. 41.)
4
The report was likely referencing California Rules of Court,
rule 4.423(b)(1), which states that a mitigating circumstance is
where the defendant “has no prior record, or has an insignificant
10
Although the Report did not expressly state how to
calculate a prior conviction’s age, it referred to “insights from
other jurisdictions.” (Report, supra, at p. 42.) The Report noted
that many states restrict using enhancements based on prior
convictions by imposing “cut-off dates or ‘wash-out’ provisions,
after which criminal history no longer counts for purposes of
increasing the length of some sentences.” (Ibid.) The Report
referenced 20 states it had reviewed, including ones that base
washout periods on the date the defendant commits the new or
current offense. (See, e.g., Ariz. Rev. Stat., § 13–105, subds.
(22)(b) & (c) [defining “historical prior felony conviction” as
certain felonies committed within the five or 10 years
“immediately preceding the date of the present offense”]; Fla.
Stat., § 775.084, subd. (1)(a) [washout applies if felony for which
the defendant is to be sentenced was committed over five years
from prior conviction or release from incarceration or
supervision]; Mich. Comp. Law Ann., § 777.50 [“prior record
variables” “score” excludes convictions preceding “a period of 10
or more years between the discharge date” and the “commission
of the next offense resulting in a conviction”]; Minn. Sentencing
Guidelines and Commentary (Aug. 1, 2023) pp. 12–13 [“criminal
history score” excludes felonies if 15 years elapsed after date of
sentence on prior felony and “date of the current offense”]
<https://mn.gov/sentencing-guidelines/guidelines/archive.jsp> [as
of Oct. 15, 2024], archived at <https://perma.cc/KZ2Y-PQHN>;
record of criminal conduct, considering the recency and frequency
of prior crimes.” The rule also provides that a mitigating
circumstance is where an “enhancement is based on a prior
conviction that is over five years old.” (Id., 4.423(b)(13).)
11
Rev. Code of Wash., § 9.94A.525, subd. (2)(b), (c), (d), (f)
[excluding certain felonies from “offender score” depending on
time offender spent “in the community without committing any
crime that subsequently results in a conviction”]; but see Ill.
Comp. Stat., § 5/5-5-3.2, subd. (b)(1) [factor to consider when
imposing extended term includes where a defendant is convicted
of any felony “when such conviction has occurred within 10 years
after the previous conviction, excluding time spent in custody”].)
Indeed, California has a washout provision that also relies
on when the defendant commits the current offense. Section
667.5, subdivision (a), provides that an additional term under it
shall not be imposed “for any prison term served prior to a period
of 10 years in which the defendant remained free of both prison
custody and the commission of an offense that results in a felony
conviction.” (Italics added.) Section 667.5 and laws from other
jurisdictions thus demonstrate that washout periods generally
end on the date the defendant commits the current offense.
Calculating a washout period from the date the current
offense was committed makes sense and furthers the general
purpose of washouts: to encourage defendants to enter into “a
crime-free cleansing period of rehabilitation after a defendant has
had the opportunity to reflect upon the error of his or her ways.”
(People v. Humphrey (1997) 58 Cal.App.4th 809, 813; In re
Preston (2009) 176 Cal.App.4th 1109, 1115–1116.) Using the
date the defendant commits a new offense to calculate a washout
period also furthers the specific legislative intent behind Senate
Bill No. 81 to improve “fairness in sentencing while retaining a
judge’s authority to apply an enhancement to protect public
safety.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
of Sen. Bill No. 81, as amended Aug. 30, 2021, at p. 5; Assem.
12
Com. on Appropriations, Analysis of Sen. Bill No. 81, as amended
July 1, 2021, at p. 2.) It treats defendants fairly by basing
sentencing on the meaningful factor of how long they remain
crime free rather than on the meaningless factor of when
sentencing occurs.
O’Bannon neither counters with law from any jurisdiction
in which the date a defendant is sentenced on the current offense
is used to calculate a washout restriction nor does he offer
persuasive argument why measuring a prior conviction’s age in
this manner makes sense. He instead argues that the statute is
unambiguous as to how to measure a prior conviction’s age
because it uses the present tense: the prior conviction “is over
five years old.” (§ 1385, subd. (c)(2)(H), italics added.) In
O’Bannon’s view, “is” refers to “the present moment,” i.e., when
the sentencing judge is considering whether to strike or to
dismiss the enhancement. From this, O’Bannon extrapolates
that a prior conviction’s age must be measured from the date of
the prior conviction to the date of sentencing on the current
offense. However, while the Legislature’s choice of verb tense can
be significant in construing statutes (People v. Loeun (1997) 17
Cal.4th 1, 11), O’Bannon imputes more meaning to verb tense
than it can bear in this instance. To be sure, the sentencing
judge must determine, at the moment of sentencing, whether a
prior conviction “is” five years old. But the word “is” does not
necessarily answer how the five years is to be measured.
Citing section 667.5, subdivision (a), O’Bannon suggests
that the Legislature’s failure to use similar language in section
1385, subdivision (c)(2)(H), evidences its intent not to base a prior
conviction’s age on the date a defendant committed the current
offense. (See generally In re Jennings (2004) 34 Cal.4th 254, 273
13
[where statute, with reference to one subject contains a given
provision, omission of such provision from similar statute
concerning related subject may show that a different legislative
intent existed with reference to different statutes]; Bernard v.
Foley (2006) 39 Cal.4th 794, 811 [absence of exception within
statutory scheme is significant because Legislature knows how to
craft exception when it wants to].) We are unpersuaded. No
single canon of construction is an infallible guide to correctly
interpret a statute, and such canons cannot defeat legislative
intent. (Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th
858, 879.) We therefore decline to read too much into the
Legislature’s failure to include in section 1385, subdivision
(c)(2)(H) language like that in section 667.5, subdivision (a).
Where, as here, the face of the statute does not state an element
crucial to its implementation, we must interpret the law to give
the Legislature’s intent effect.
A hypothetical using O’Bannon’s interpretation of the
statute demonstrates why that interpretation is contrary to
legislative intent and ours is consistent with it. Two hypothetical
defendants are convicted of their prior offenses on the same day,
commit their current offense on the same day, and are initially
sentenced on the current offense on the same day. When the
defendants are initially sentenced, their prior convictions are not
five years old, so neither benefits from section 1385, subdivision
(c)(2)(H). Both appeal and both cases are remanded for
resentencing. On remand, Defendant One’s resentencing hearing
occurs quickly, on a date that is still less than five years from his
prior conviction; section 1385, subdivision (c)(2)(H) therefore
remains inapplicable to Defendant One. However, Defendant
Two’s resentencing hearing is delayed, so that at the time of the
14
resentencing hearing, Defendant Two’s prior conviction is now
over five years old; section 1385, subdivision (c)(2)(H), therefore
applies to Defendant Two. The same result could occur if the
defendants’ initial sentencing hearings occur at different times,
one more than five years from the prior conviction and the other
less than five years from the prior conviction. This hypothetical
thus demonstrates how O’Bannon’s construction of the law leads
to an absurd result. Defendants One and Two are identically
situated, except for the happenstance of when their sentencing
hearings occurred. Yet, one is eligible for relief and the other is
not. But if we instead calculate the age of their prior convictions
from the date of the prior convictions to the date the defendants
committed their current offenses, then neither is eligible for
relief—the identically situated defendants are treated the same.
Our interpretation of the washout provision thus results in
fair and consistent sentencing of similarly situated defendants.
And while O’Bannon’s interpretation of the statute would
certainly render more defendants eligible for relief, it incentivizes
defendants to delay sentencing rather than rewarding them for
remaining crime free for longer periods of time. (See generally
People v. Jones (1988) 46 Cal.3d 585, 599 [although we resolve
true ambiguities in defendant’s favor, we will not strain to
interpret a penal statute in defendant’s favor if we discern a
contrary legislative intent].) We therefore find that the
mitigating circumstance in section 1385, subdivision (c)(2)(H) is
measured from the date of the defendant’s prior conviction to
when the defendant commits the current offense.
Applying this calculation here, the enhancement was based
on O’Bannon’s November 23, 2015 prior conviction for criminal
threats. He committed his current offenses on January 30, 2019,
15
only three years after he was convicted of the prior 2015 offense.
Because only three years elapsed from the date of his prior
conviction to the date of the current offense, section 1385,
subdivision (c)(2)(H) does not apply to him. Accordingly, his trial
counsel did not provide ineffective assistance by failing to raise
that subdivision in the trial court.
II. Senate Bill No. 567
O’Bannon contends that, under Senate Bill No. 567, the
trial court’s reliance on his certified rap sheet to find true three
aggravating factors violated his Sixth Amendment right to a jury
trial.5 We find that any trial court error was harmless beyond a
reasonable doubt, and we therefore reject the contention.
Effective January 1, 2022, Senate Bill No. 567 (2021–2022
Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) amended section 1170 to
make the middle term the presumptive term. A trial court may
impose the upper term only “when there are circumstances in
aggravation of the crime” that justify imposing a term of
imprisonment exceeding the middle term, and the defendant has
stipulated to the facts underlying those circumstances or those
facts have been found true beyond a reasonable doubt at trial by
the trier of fact. (§ 1170, subd. (b)(2); see generally People v.
Lopez (2022) 78 Cal.App.5th 459, 464–465, disapproved on
another ground in People v. Lynch (2024) 16 Cal.5th 730 (Lynch).)
However, the trial court may “consider the defendant’s prior
convictions” based on certified records of conviction to determine
5
The People contend that O’Bannon forfeited this issue by
failing to object below. Even if forfeited, we reach the issue
because it affects O’Bannon’s substantial rights. (§ 1259.)
16
the sentence to impose without submitting the prior convictions
to the jury. (§ 1170, subd. (b)(3).)
People v. Wiley (2023) 97 Cal.App.5th 676, review granted
March 12, 2024, S283326 (Wiley), considered the scope of section
1170, subdivision (b)(3)’s exception for a trial court’s
consideration of “prior convictions.”6 Specifically, other than the
bare fact a defendant has suffered a prior conviction, does the
exception include issues related to prior convictions that can be
determined by examining certified records of conviction? As
relevant here, the “related issues” a trial court may consider are
whether a defendant’s prior convictions are numerous or of
increasing seriousness and whether a defendant previously
performed poorly on probation.
Wiley, supra, 97 Cal.App.5th 676, review granted, found
that the exception includes such issues. The court noted that the
statute on its face “does not specify the court is limited to finding
that a prior conviction occurred; instead, it states the court may
‘consider the defendant’s prior convictions in determining
sentencing.’ ” (Id. at p. 686.) Stated otherwise, the exception is
broader than being limited to the bare fact the defendant has a
prior conviction. Further, this statutory language accords with
Sixth Amendment jurisprudence under which a jury does not
have to find true recidivist issues related to a prior conviction.
(Wiley, at p. 686.) That is, aggravating circumstances based on a
defendant’s criminal history that render the defendant eligible
6
The issue on review in Wiley is: “Did the sentencing court’s
consideration of circumstances in aggravation based on certified
records of prior convictions, beyond the bare fact of the
convictions, violate Penal Code section 1170, subdivision (b)(3) or
defendant’s Sixth Amendment right to a jury trial?”
17
for the upper term and that do not need to be submitted to a jury
under the Sixth Amendment include: (1) the defendant suffered
prior convictions that are numerous or increasingly serious
(People v. Black (2007) 41 Cal.4th 799, 818–820) and (2) the
defendant performed unsatisfactorily while on probation or
parole (People v. Towne (2008) 44 Cal.4th 63, 82). (See generally
Cunningham v. California (2007) 549 U.S. 270, 288–289;
Apprendi v. New Jersey (2000) 530 U.S. 466, 490; People v. Scott
(2015) 61 Cal.4th 363, 405.) Nothing on the face of section 1170
suggests the Legislature wanted to depart from Sixth
Amendment jurisprudence “by establishing a narrower statutory
prior conviction exception.” (Wiley, at p. 686; accord, People v.
Morgan (2024) 103 Cal.App.5th 488, review granted Oct. 2, 2024,
S286493; People v. Pantaleon (2023) 89 Cal.App.5th 932, 938;
People v. Ross (2022) 86 Cal.App.5th 1346, 1353, review granted
Mar. 15, 2023, S278266 [under § 1170, subd. (b)(3), trial court
could rely on certified conviction records to consider recidivism-
based aggravating factors, including defendant’s multiple
offenses, prior prison term, and poor performance on parole and
probation];7 People v. Flowers (2022) 81 Cal.App.5th 680, 685–
686, review granted Oct. 12, 2022, S276237; but see People v.
7
However, the court concluded that the matter had to be
remanded because the Ross trial court also relied on crime-based
aggravating factors (for example, the victim was particularly
vulnerable, and the crime involved great violence, great bodily
harm, threat of great bodily harm, or other act disclosing a high
degree of cruelty, viciousness, or callousness) that had to be
proven to a jury beyond a reasonable doubt or stipulated to by the
defendant. (People v. Ross, supra, 86 Cal.App.5th at pp. 1355–
1356, rev.gr.)
18
Falcon (2023) 92 Cal.App.5th 911, 952, fn. 12, 953–955, review
granted Sept. 13, 2023, S281242, [acknowledging § 1170,
subd. (b) “now effectively incorporates Sixth Amendment
principles,” but questioning whether § 1170, subd. (b)(3) has
same scope as constitutional exception for prior convictions, and
ultimately declining to resolve that question]; see also People v.
Dunn (2022) 81 Cal.App.5th 394, 404–405 & fn. 8, review granted
Oct. 12, 2022, S275655 [certified record of conviction or
defendant’s admission proved some aggravating factors but not
whether defendant was on probation at time of charged offense,
so upper term sentence was error, but harmless].)
Our United States Supreme Court recently considered the
scope of the prior conviction exception in Erlinger v. United
States (2024) 602 U.S. ___, 144 S.Ct. 1840.) In that case, the
court rejected that the exception allowed a judge to find whether
a defendant committed past offenses on different occasions within
the meaning of the federal Armed Career Criminal Act. (Id. at
p. __; 144 S.Ct. at pp. 1851–1852.) The court reiterated that the
Sixth Amendment permits a judge to determine no more than
what crime with what elements the defendant was convicted of.
(Erlinger, at p. __; 144 S.Ct. at p. 1854.)
We need not weigh in on whether Wiley is correct or what
impact Erlinger might have on the scope of the exception in
section 1170, subdivision (b)(3). Rather, any error in finding the
aggravating circumstances true here was harmless, under the
standard of prejudice our California Supreme Court recently
articulated in Lynch, supra, 16 Cal.5th 730. Lynch, at pages 742
to 743, has now clarified that trial court error in imposing an
upper term sentence under section 1170, subdivision (b), is
assessed under Chapman v. California (1967) 386 U.S. 18. That
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is, where a trial court relies on unproven aggravating factors to
impose an upper term sentence, even if some other aggravating
factors relied on have been properly established, the “violation is
prejudicial unless an appellate court can conclude beyond a
reasonable doubt that a jury would have found true all of the
aggravating facts relied upon by the trial court to justify an
upper term sentence, or that those facts were otherwise proved
true in compliance with the current statutory requirements.”
(Lynch, at p. 768, italics added.) “If the reviewing court cannot so
determine, applying the Chapman standard of review, the
defendant is entitled to a remand for resentencing.”8 (Ibid.)
Applying this standard here, beyond a reasonable doubt, a
jury would have found all three aggravating circumstances true
based on O’Bannon’s extensive criminal history as shown by the
certified record of convictions. The trial court accurately
summarized that history, noting that O’Bannon’s first criminal
conviction was in 1997 for misdemeanor being under the
influence of a controlled substance (Health & Saf. Code, § 11550).
That same year, he was convicted of misdemeanor carrying a
concealed weapon (former § 12025, subd. (a)(2)) and felony
possession of a controlled substance (Health & Saf. Code,
§ 11350). In 1998, he was convicted of battery on a peace officer
(§§ 242, 243, subd. (b)) and of felony battery by a prisoner
(§ 4501.5) for which he was sentenced to probation, and when
8
Lynch, supra, 16 Cal. 5th at page 768, accordingly
disapproved, to the extent they are inconsistent with its opinion,
People v. Falcon, supra, 92 Cal.App.5th 911, rev.gr.; People v.
Ross, supra, 86 Cal.App.5th 1346, rev.gr.; People v. Dunn, supra,
81 Cal.App.5th 394, rev.gr.; and People v. Lopez, supra, 78
Cal.App.5th 459.
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probation was revoked, to four years in prison. In 2002, he was
convicted again of felony possession of a controlled substance. In
2003, he was convicted of felony battery against a peace officer
(§ 243, subd. (c)(2)) and sentenced to two years in prison and of
felony possession of a controlled substance for which he was
sentenced to a concurrent term. Following his release from
custody, O’Bannon violated parole twice, with an additional
violation in 2006. Also in 2006 and then in 2011, he was
convicted of misdemeanor obstructing or resisting a public officer
(§ 148). In 2008, he was sentenced to four years in prison for
assault by a prisoner (§ 4501) and to two years in prison for
manufacturing a weapon in prison (former § 12020). Between
2008 and 2014, he violated parole multiple times and, as the trial
court noted, “he had been in and out of state prison custody based
on” those violations. In 2015, he was convicted of his strike
offense, criminal threats, and sentenced to five years in prison.
He then committed the at-issue offenses.
This record establishes that O’Bannon has served multiple
prior prison terms (Cal. Rules of Court, rule 4.421(b)(3)).
O’Bannon does not appear to contest that the trial court could
make this finding based on his certified record of convictions. In
any event, the mere fact that he suffered a prior conviction
complies with the Sixth Amendment as interpreted by Apprendi
and its progeny.
O’Bannon’s certified record of conviction also establishes
that he had prior adult convictions that were numerous or of
increasing seriousness. (Cal. Rules of Court, rule 4.421(b)(2).) As
the trial court detailed, O’Bannon had his first adult conviction in
1997 and continued to accumulate convictions every year or every
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several years, often for substance-related crimes or for more
serious crimes against a person.
Finally, the certified record of conviction establishes that
O’Bannon previously performed poorly on probation (Cal. Rules of
Court, rule 4.421(b)(5)). As the trial court noted, O’Bannon
violated the terms of his probation or parole many times.
We accordingly conclude that beyond a reasonable doubt a
jury would have found all three aggravating circumstances true.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
EDMON, P. J.
We concur:
EGERTON, J.
BERSHON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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