THE PEOPLE, Plaintiff and Respondent, v. RUSSELL LAJUEAR O’BANNON, Jr., Defendant and Appellant.
B327483
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 10/15/24
CERTIFIED FOR PARTIAL PUBLICATION*; (Los Angeles County Super. Ct. No. VA149850)
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
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
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 (
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
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 (
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
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
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.” (
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.
O’Bannon first argues that multiple (two) enhancements were alleged in this case, and therefore one had to be dismissed under
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
O’Bannon argues that Burke’s analysis is faulty because it fails to address subdivision (c)(2)(G) of
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
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
to argue that O’Bannon had multiple enhancements within the meaning of
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
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
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.” (
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
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.,
Indeed, California has a washout provision that also relies on when 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.
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.” (
Citing
[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
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
resentencing hearing, Defendant Two’s prior conviction is now over five years old;
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
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,
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,
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
the sentence to impose without submitting the prior convictions to the jury. (
People v. Wiley (2023) 97 Cal.App.5th 676, review granted March 12, 2024, S283326 (Wiley), considered the scope of
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
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
Falcon (2023) 92 Cal.App.5th 911, 952, fn. 12, 953–955, review granted Sept. 13, 2023, S281242, [acknowledging
Our United States Supreme Court recently considered the scope of the prior conviction exception in Erlinger v. United States (2024) 602 U.S. 821, 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 pp. 844–845; 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. 848; 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
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.” (Ibid.)8
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 (
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 (
This record establishes that O’Bannon has served multiple prior prison terms (
O’Bannon’s certified record of conviction also establishes that he had prior adult convictions that were numerous or of increasing seriousness. (
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 (
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.