People v. Banks

California Court of Appeal Apr 13, 2007 No. G036873Published

Before: Rylaarsdam

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Holding. The court held that while a trial court may impose an upper term sentence based on recidivism-related factors without jury findings, it must remand for resentencing when the trial court relied on a mix of valid recidivism factors and invalid non-jury factors without indicating the recidivism factors alone would justify the sentence.

Issues

Whether the trial court's imposition of an upper term sentence based on non-jury findings violated the defendant's constitutional rights under Apprendi and Cunningham.
Whether the trial court's reliance on recidivism-related factors as a basis for an upper term sentence falls within the prior conviction exception to the Apprendi rule.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“To the extent the court relied on defendant's participation in the planning and commission of the crimes, its sentencing decision violates Apprendi and Cunningham.”

“Since we are not convinced the trial court would have imposed the same sentence solely because of defendant's prior criminal history, we remand for resentencing.”

57 Cal.Rptr.3d 483 (2007) 149 Cal.App.4th 969 The PEOPLE, Plaintiff and Respondent,

William Adam BANKS, Defendant and Appellant.

No. G036873. Court of Appeal of California, Fourth District, Division Three.

April 13, 2007. [484] William Flenniken, Jr., San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendoxf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RYLAARSDAM, Acting P.J.

Defendant William Adam Banks and two other men entered a sandwich shop displaying what appeared to be a gun. After taking money from the till, a tip jar, and one of the store's two employees, defendant and his confederates forced their victims into a refrigerator. Based on this evidence, a jury found defendant guilty of two counts of second degree robbery, one count of commercial burglary, and two counts of false imprisonment by violence.

The trial court sentenced defendant to six years in prison, consisting of the five-year upper term for the first robbery and a consecutive one-year term on the second. It stayed sentencing on the burglary count (Pen.Code, § 654) and imposed concurrent two-year terms on the false imprisonment with violence counts. In choosing the upper term on count 1, the court cited defendant's "leadership role" in the undertaking', which involved "some planning and sophistication," "a high degree of cruelty," and defendant's use of "at least [the] replica" of a gun. The court also noted his "well documented" "priors and the fact" he "ha[d] not been doing well on probation or parole."

Defendant's sole appellate claim is that the upper term sentence on count 1 violates his constitutional rights because it "relied on aggravating factors that were not proven to a jury beyond a reasonable doubt." Thus, he contends, we must reduce the sentence on count 1 "to [the] middle term...." We agree some of the sentencing factors cited by the trial court can no longer support imposing an upper term sentence unless the trier of fact finds them true by proof beyond a reasonable doubt. But we shall remand the matter to the trial court and allow it to decide whether, in the exercise of its discretion, defendant's prior criminal record alone supports imposing the upper term.

People v. Banks

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OPINION

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DISCUSSION

DISPOSITION

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