People v. Banner
F079770A
| Cal. Ct. App. | Apr 8, 2022Background
- Defendant Lamonte Banner entered a restaurant, produced a toy gun at the register, demanded money, left empty-handed, and was arrested nearby; two employees were present—one refused, one fled.
- Charged with two counts of attempted robbery; prior strike and serious-felony priors found true; jury convicted both counts.
- Sentence: nine years (middle term of 2 years for attempted robbery doubled for strike + 5-year serious-felony enhancement); second count concurrent.
- Trial and sentencing records contained extensive mental-health materials, including competency proceedings and diagnoses; court acknowledged Banner had mental-health issues but found they were not a significant factor in the crime.
- Banner appealed raising (1) trial court’s alleged sua sponte duty to consider pretrial mental-health diversion (Pen. Code §1001.36), (2) ineffective assistance for counsel’s failure to request diversion, (3) insufficiency of evidence for the second attempted robbery conviction, and (4) improper fines/fees; he also filed a habeas petition and, on rehearing, argued AB 124 (amending §1170) applied retroactively.
- Court affirmed convictions, denied habeas, rejected a sua sponte diversion duty and ineffective-assistance prejudice, upheld sufficiency of evidence and fines/fees (forfeited), but remanded for resentencing under AB 124 because the new §1170(b)(6)(A) presumption applies retroactively and the record does not clearly show the trial court would have imposed the same term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sua sponte duty to consider mental-health diversion (§1001.36) | No sua sponte duty exists; statute discretionary | Banner: court had a duty to consider diversion sua sponte | Rejected—§1001.36 contemplates a defendant/request-originated process; no sua sponte duty; court did consider records anyway |
| Ineffective assistance—failure to request diversion | People: record doesn't show eligibility, so no prejudice | Banner: counsel should have requested diversion; expert might have shown eligibility on remand | Rejected—no Strickland prejudice shown; record does not demonstrate the court would likely have granted diversion |
| Sufficiency of evidence for second attempted robbery | People: intent to rob all employees present reasonably inferred | Banner: no acts directed at second employee, so insufficient intent | Affirmed—jury could infer intent to rob both employees under joint constructive possession principles (Scott) |
| Fines and fees imposition | People: Banner forfeited objection by not raising at sentencing | Banner: Dueñas requires ability-to-pay inquiry; counsel ineffective for not objecting | Forfeited; alternatively, counsel not shown ineffective—record indicated ability to pay; assessments proper |
| AB 124 (§1170(b)(6)(A)) retroactivity and remand | People & Banner: AB 124 applies retroactively; but People argue remand futile because no "trauma" finding | Banner: AB 124 presumption applies and favors lower term | Remand ordered—AB 124 applies retroactively; psychological trauma that attends mental illness can trigger the §1170(b)(6)(A) presumption; record does not clearly show the trial court would have imposed the same term, so resentencing is required |
Key Cases Cited
- People v. Frahs, 9 Cal.5th 618 (Cal. 2020) (limited remand where record affirmatively shows qualifying mental disorder for diversion)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (constitutional ineffective-assistance standard)
- People v. Scott, 45 Cal.4th 743 (Cal. 2009) (multiple robbery convictions proper where force/fear applied to multiple victims in joint possession)
- People v. Lindberg, 45 Cal.4th 1 (Cal. 2008) (substantial-evidence standard on sufficiency review)
- People v. Nguyen, 24 Cal.4th 756 (Cal. 2000) (robbery requires removal from victim's possession by force or fear)
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (ability-to-pay inquiry for certain fines and fees)
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (presumption of retroactivity for ameliorative statutory changes)
- People v. Bell, 7 Cal.5th 70 (Cal. 2019) (clarifies burden and standards for ineffective-assistance claims)