People v. Banks CA2/3

Opinion

Filed 8/26/26 P. v. Banks CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B343896

Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA115860 v.

ROBERT LEE BANKS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed. Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General for Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ Appellant Robert Lee Banks appeals his resentencing pursuant to Penal Code section 1172.75.1 He argues that the superior court improperly denied his request to dismiss the prior serious felony conviction enhancement by finding that dismissal would endanger public safety. He also argues that the court improperly reimposed the upper term on the principal count without complying with the heightened factfinding requirement of section 1170, subdivision (b). We reject both arguments and affirm. FACTUAL AND PROCEDURAL BACKGROUND I. Facts2 On May 30, 1995, at about 1:00 p.m., Banks entered a Payless Shoe Source at Vermont Avenue and Manchester Boulevard in Los Angeles, California. He selected a pair of shoes and took them to the cashier. He pointed a handgun at three employees. Banks took money from the store’s cash register and safe, and from one of the employees. II. Trial court proceedings On December 8, 1995, a jury found Banks guilty of three counts of second degree robbery (§ 211; counts 1–3) and found a firearm enhancement (§ 12022.5, subd. (a)) true as to each. Banks admitted the truth of the allegations that he served a prior prison term (§ 667.5, subd. (b)) for possession of a firearm by a 1 All further unspecified statutory references are to the Penal Code. 2 We refer to the factual background from the opinion in People v. Banks (Jan. 8, 1997, B099650) (nonpub. opn.).

2 felon on October 12, 1993 in case BA083166. He also admitted that he sustained prior serious felony convictions (§ 667, subd. (a)(1)) and prior felony convictions under the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) for kidnapping and robbery on December 15, 1989 in case No. A927627 and robbery on June 30, 1982 in case No. A199976. On count 1, the trial court imposed 10 years, calculated as the upper term of five years, doubled under the Three Strikes law. The court imposed an additional 10 years for the firearm enhancement as to count 1. For counts 2 and 3, the court imposed a consecutive term of two years each, calculated as one- third the midterm of three years, doubled under the Three Strikes law. As to counts 2 and 3, the court imposed an additional one year and four months for each firearm enhancement. The court imposed an additional five years for one prior serious felony conviction enhancement under section 667, subdivision (a)(1) and an additional year for the prior prison term enhancement under section 667.5, subdivision (b). The aggregate sentence was 32 years and eight months in state prison. On January 8, 1997, the Court of Appeal affirmed the judgment.3 III. Resentencing under section 1172.75 On July 8, 2024, counsel for Banks filed a petition for resentencing pursuant to Senate Bill No. 483 and section 1172.75. On January 27, 2025, the superior court conducted a resentencing hearing. The court found that striking the prior 3 People v. Banks, supra, B099650.

3 serious felony conviction enhancement would endanger public safety and denied Banks’s request to strike that enhancement. The court recalled the sentence and struck the invalid prior prison term enhancement. The court resentenced Banks to 31 years and eight months in state prison, reimposing the same terms as imposed in the original sentence. Specifically, the court reimposed 20 years for the principal term on count 1, calculated as the upper term of five years, doubled pursuant to the Three Strikes law, plus 10 years for the firearm enhancement. On counts 2 and 3, the court again imposed consecutive terms of three years and four months each. It reimposed five additional years for the prior serious felony conviction enhancement. DISCUSSION I. Denial of request to strike prior serious felony conviction enhancement A court has discretion to strike a prior serious felony conviction enhancement under section 667, subdivision (a)(1) when it is in the furtherance of justice. (People v. Shaw (2020) 56 Cal.App.5th 582, 586.) The full resentencing pursuant to section 1172.75 rendered Banks eligible for this relief. (People v. Monroe (2022) 85 Cal.App.5th 393, 395, 402.) Effective January 1, 2022, Senate Bill No. 81 amended section 1385 to add subdivision (c). (Stats. 2021, ch. 721, § 1.) Section 1385, subdivision (c)(1) provides, “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so . . . .” Section 1385, subdivision (c)(2) requires that a sentencing court give “great weight to evidence offered by the defendant to prove that any of the 4 mitigating circumstances in subparagraphs (A) to (I) are present.” One or more mitigating circumstances “weighs greatly in favor of dismissing the enhancement.” (Ibid.) The statute provides an exception to the section 1385, subdivision (c)(2) requirement when “the court finds that dismissal of the enhancement would endanger public safety.” Section 1385, subdivision (c)(2) further states that “ ‘endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” Even if the court does not find that dismissal would endanger public safety, it “retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.” (People v. Walker (2024) 16 Cal.5th 1024, 1029 (Walker).) “Stated simply, if the court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement. But ultimately, the court must determine whether dismissal is in the furtherance of justice.” (Id. at p. 1036.) We review a trial court’s decision not to strike sentencing enhancements under section 1385 for abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) We must not disturb an exercise of discretion on appeal “ ‘ “ ‘except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (Ibid.) A court abuses its discretion if it bases “ ‘its decision on impermissible factors . . . or on an incorrect legal standard.’ ” (People v. Gonzalez (2024) 103 Cal.App.5th 215, 225.) We assess whether the superior court’s 5 findings of fact are supported by substantial evidence. (People v. Garcia (2024) 101 Cal.App.5th 848, 857.) a. Finding that dismissal would endanger public safety At the resentencing hearing, Banks requested that the superior court dismiss the prior serious felony conviction enhancement. The court found that dismissal of the enhancement would endanger public safety under section 1385, subdivision (c)(2). It specifically found that there was “a likelihood that the dismissal . . . would result in physical injury or serious danger to others.”4 Banks argues that there was insufficient evidence to support the court’s determination that dismissal of the enhancement would endanger public safety. Banks first complains that the superior court “relied solely on his past offenses, his disciplinary actions while in custody, and his performance on parole,” and failed to consider his accomplishments in state prison, his age, and the time he served in prison.

4 The court also found by clear and convincing evidence that imposing a lesser sentence would endanger public safety under section 1172.75, subdivision (d)(1). This finding was unnecessary because the court reduced Banks’s sentence by one year when it struck the prior prison term enhancement. This reduction resulted “in a lesser sentence than the one originally imposed,” as required by section 1172.75, subdivision (d)(1). (People v. Bravo (2025) 107 Cal.App.5th 1144, 1156.)

6 On the contrary, the court was aware of and considered Banks’s accomplishments, age, and time in prison. As to Banks’s accomplishments in prison,5 the court stated: “[Y]our attorney did a very thorough job in presenting to the court all that you’ve done to improve yourself in the last few years while you’ve had . . . this change of heart and this new outlook. And those things are super important for a variety of reasons . . . . [¶] But I do want to commend you for, you know, how much you’ve done in the last nine years or whatnot, to . . . finish getting your GED . . . and doing things to improve the way you interact with people. And obviously getting a strong support system in the community too. . . . Don’t think that I didn’t hear them or I didn’t recognize them because I do know that you’ve done that hard work too, and I want to make sure that–your attorney has already done to make sure that’s on the record that you understand that I recognize that too”.

5 Banks’s counsel highlighted his completion of a program called Pathways to Freedom, a victim awareness course, an anger management course, twelve-step programs, a creative writing course, and a vocational training course. He also participated in fundraising for a cancer walk. Banks held jobs in the dining room, clothing distribution, the canteen, the laundry, and printing. He also worked as a porter, a barber, and a recreational aid. Banks’s counsel summarized letters from supervisors and others who would assist his transition into the community.

7 The court also observed that Banks was 60 years old. It determined that he would soon be eligible for release after having served 29 years of the 32 year and eight-month sentence for the three underlying convictions for robbery with a firearm.6 The court highlighted that Banks was 31 years old at the time of the underlying offenses.7 Based on this age, the court concluded that youthful immaturity and impulsivity were not the cause in Banks’s commission of those offenses. Banks attempts to minimize his prison rule violations, asserting that they would not make him a danger to the public if the enhancement was dismissed. We reject Banks’s argument. We recognize, as the superior court did, that Banks had been free from rule violations since 2016.8 But Banks asks us to 6 The court determined Banks was eligible for release in 2027. 7 The court stated that the Probation Department’s report for the underlying case indicated that Banks’s birthdate was July 11, 1964. 8 Misconduct is reported on a Rules Violation Report or an RVR as it is commonly referred to, when it “is believed to be a violation of law or is not minor in nature.” (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).) From 2011 to 2016, Banks sustained seven RVRs, including possession of dangerous contraband, assault on a non-peace officer, participation in a riot, possession of an inmate- manufactured weapon, possession of contraband, and two incidents of use of marijuana based on a positive test. From 1996 to 1999, Banks sustained an additional 12 RVRS, including threatening staff, possession of inmate- manufactured alcohol, possession of inmate-manufactured weapon, disrespect of staff, refusing an order, possession of 8 improperly reweigh the significance of the nature of each rule violation. That we cannot do, given the applicable standard of review. The court considered the significance of the rule violations in the context of Banks’s entire lengthy criminal career. The court expressed, “What causes the court concern here is obviously your criminal history and that has not stopped since you have been incarcerated, having picked up a number of disciplinary actions and actually an additional crime of conviction, not just disciplinary actions.” To the court, the twenty-three rule violations simply demonstrated Banks’s inability to conform to the law even under structured conditions. One of them resulted in a felony conviction.9 The court also expressed its concern about Banks’s “complete inability” to “abide by the terms of supervision” as demonstrated by his rule violations and his repeated violations of parole and probation, including when he committed the underlying offenses. The court highlighted that Banks never successfully completed a term of alcohol, disobeying a direct order, refusal to go to a job assignment, mutual combat, disrespect, and refusal to submit to a drug test. He sustained four more RVRs from 2001 to 2004 including two incidents of possession of alcohol and two incidents of participation in a riot. 9 In 2006, Banks was convicted for assault on a non-inmate which involved licking the arm of a woman employed by the Department of Corrections and Rehabilitation. The prosecutor informed the court that Banks also wrote a poem indicating his intentions to assault the victim in the case. Banks received a four-year prison sentence to be served consecutively to the sentence for the three underlying convictions of robbery with a firearm.

9 court-ordered or prison-imposed supervision. Both considerations of the rule violations influenced the court’s assessment of Banks’s dangerousness when released. We reject Banks’s argument that his past dangerousness “did not establish that he was currently dangerous or would be in the future.” Because Banks had already served 29 years of his sentence of 32 years and eight months, the significance of his current dangerousness and future dangerousness are practically indistinguishable. The current dangerousness of the defendant matters when reduction of the sentence would result in release “within a short timeframe.” (People v. Gonzalez, supra, 103 Cal.App.5th at p. 228.) The court assessed the impact of Banks’s rule violations, including one that resulted in a felony conviction, as they specifically related to his posing “future danger to public and the danger to public safety generally speaking.” Notably, on appeal, Banks fails to adequately address the superior court’s consideration of his criminal history in making its dangerousness finding. The court stated, “I am going to go through your prior record, Mr. Banks, as I said earlier, it’s a pretty awful prior record, and I think you know that.” The court highlighted Banks’s five convictions which resulted from eight arrests. Four of the five involved Banks personally having a firearm.10 10 The court noted that a juvenile petition was sustained against Banks on November 10, 1981 for robbery with the personal use of a firearm. After release, Banks violated parole supervised by the former California Youth Authority (CYA). The court also observed that Banks was arrested on February 21, 1985 for assault with a deadly weapon which resulted in a conviction for carrying a concealed firearm as a misdemeanor. This conviction resulted in a violation of Banks’s 10 We conclude that Banks’s multiple convictions related to firearm activity and failure to conform to rules of supervision when in prison and when released from prison constitute substantial evidence to support the superior court’s determination that there would be a high likelihood that dismissal of the enhancement would endanger public safety.11 CYA parole. In 1987, he was arrested for attempting to escape a halfway house while on CYA parole. This charge was later dismissed. On December 17, 1987, Banks was arrested for robbery. The disposition was unknown. On February 21, 1989, Banks was convicted of robbery, grand theft of an automobile, kidnapping, and taking a vehicle without consent for threatening to kill a man, pulling a gun on him, and taking his car, followed by evading the police in a car chase. Banks was sentenced to four years in state prison. After release, Banks violated parole and was returned to prison. On July 4, 1992, Banks was convicted of misdemeanor battery for punching a woman in the face. This conviction also resulted in a parole violation. On September 13, 1993, while still on parole, Banks was convicted of possession of a firearm by felon. He was sentenced to 16 months in prison. On May 30, 1995, Banks committed the robberies with a firearm underlying this case. Again, Banks was on parole at the time of the robberies and he was performing unsatisfactorily by failing to report. 11 Because we conclude that substantial evidence supported the superior court’s determination, we need not address Banks’s argument that the court abused its discretion by failing to properly consider the factors in section 1385, subdivision (c)(2)(C).

11 b. Refusal to strike the prior serious felony conviction enhancement To the extent the superior court refused to dismiss the prior serious felony conviction enhancement, it did not abuse its discretion.12 The superior court’s conclusion was consistent with the Supreme Court’s assessment that “in most cases, ‘if the trial court finds that dismissal of an enhancement would endanger public safety, then it is hard to see how dismissal would further the interests of justice,’ notwithstanding the applicability of any mitigating factor identified in subdivision (c)(2). [Citation.]” (Walker, supra, 16 Cal.5th at p. 1033.) II. Imposition of upper term on principal count Banks contends that the superior court erred by reimposing the upper term for the principal count when resentencing him. He asserts that this violated section 1170, subdivision (b) because the aggravating circumstances on which the court relied were not admitted by him, stipulated by the parties, or found true beyond a reasonable doubt by a jury. We reject Banks’s contention. Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b) to prohibit imposition of a sentence exceeding the middle term when a statute specifies three possible terms. (Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) permits imposing the upper term “only when there are circumstances in aggravation of the crime that justify the imposition of a term . . . exceeding the middle term and the facts underlying those circumstances have been stipulated to by the 12 The court stated, “For the reasons I’ve stated, I can’t make a finding why I should be striking any of the enhancements.”

12 defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” Section 1172.75, subdivision (d)(2) requires the court when resentencing to “apply any other changes in the law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” This requirement includes applying the limitation on imposing the upper term under section 1170, subdivision (b)(2). But section 1172.75, subdivision (d)(4) states: “Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” The first clause—“Unless the court originally imposed the upper term”— provides an exception for defendants who were originally sentenced to the upper term from the second clause’s factfinding requirement. According to the court in People v. Brannon-Thompson, the plain language of section 1172.75, subdivision (d)(4) indicates that the factfinding requirement under section 1170, subdivision (b)(2) applies only if the court is imposing the upper term for the first time. (People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 466–467.) Brannon-Thompson concluded that section 1172.75, subdivision (d)(4) permits the court to reimpose an upper term sentence even if a factfinder never found an 13 aggravating factor beyond a reasonable doubt. (Brannon- Thompson, at p. 458.) We agree with this interpretation of section 1172.75, subdivision (d)(4), and see no ambiguity in it. (People v. Cornett (2012) 53 Cal.4th 1261, 1265 [when interpreting a statute, “[t]he plain meaning controls if there is no ambiguity in the statutory language”].) The court in People v. Gonzalez (2024) 107 Cal.App.5th 312, 328–329 (Gonzalez), acknowledged that the plain language of section 1172.75, subdivision (d)(4) could be interpreted as it was in Brannon-Thompson. But Gonzalez interpreted section 1172.75, subdivision (d)(4) as only restricting eligibility to receive the upper term at resentencing to those who previously received the upper term. According to Gonzalez, section 1172.75, subdivision (d)(4) does not permit a court to entirely circumvent the factfinding requirement. The Supreme Court granted review in a nonpublished case to decide the split of authority by Brannon-Thompson and Gonzalez and will have the final say over whether section 1172.75, subdivision (d)(4) permits a court to reimpose an upper term sentence without satisfying the factfinding requirement of section 1170, subdivision (b). (People v. Mathis (2025) 111 Cal.App.5th 359, 372–373, fn. 6, review granted Aug. 13, 2025, S291628 (Mathis) [referring to People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903].) Until then, like the superior court here, we agree with Brannon-Thompson and decline to follow Gonzalez.13 (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.)

13 Banks does not raise any Sixth Amendment challenge to the reimposition of the upper term under section 1172.75, 14 Here, the superior court reimposed the upper term for count 1 without a jury finding of any aggravating circumstance. Section 1172.75, subdivision (d)(4) permitted the superior court to reimpose the upper term without violating section 1170, subdivision (b) because the original sentencing court imposed the upper term for the principal count.14 subdivision (d)(4). Accordingly, we do not address any such challenge as discussed in Gonzalez, supra, 107 Cal.App.5th at pages 329–330, Mathis, supra, 111 Cal.App.5th at pages 372–373, review granted, and People v. Dozier (2025) 116 Cal.App.5th 700, 706, 714, 716, review granted February 11, 2026, S294597. 14 Banks also argues that in imposing the upper term for count 1, the superior court improperly relied on aggravating factors for having prior convictions increasing in frequency and seriousness, failure to successfully complete court-ordered or prison-imposed supervision, and multiple victims in the underlying case because they were not stipulated by him, nor proven to a jury, in violation of People v. Wiley (2025) 17 Cal.5th 1069, 1078 and section 1170, subdivision (b)(2). Because we conclude that section 1172.75, subdivision (d)(4) permitted reimposition of the upper term for count 1, we need not address this other argument that the jury was required to find beyond a reasonable doubt any aggravating circumstances additionally referenced by the superior court.

15 DISPOSITION We affirm the judgment. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS HANASONO, J.

We concur:

ADAMS, P. J.

ASHWORTH, J.* * Retired Judge of the El Dorado Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.