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Assembly Bill 124 Applied to Sentencing on Robbery

Assembly Bill (AB) 124 amended Penal Code § 1170 to state that, in sentencing a defendant, unless a judge finds that the aggravating circumstances outweigh the mitigating circumstances, the court shall impose the lower term of imprisonment if the following was a contributing factor in the commission of the offense: “(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation or sexual violence.”
The Gist of this Article: Assembly Bill 124 applies retroactively to non-final judgments, as the following summary exemplifies wherein defendant challenged the conviction itself as well as the sentence.  We recommend that anyone who believes the “AB 124 presumption” applies should read this case to understand the distinctions in terminology the Fifth Circuit ruling clarifies.       
Lamonte Shermale Banner was convicted by a Kern County jury of two attempted robberies for a single act involving two restaurant employees.  Banner entered a restaurant and waited in line several minutes behind multiple customers.  When Banner reached the cash register at the front of the line, he produced a toy firearm and demanded money from the employee operating the registrar.

That employee did not believe the firearm was real and refused to comply.  A second employee, however, standing near the registrar ran away in fear.  Banner subsequently left emptyhanded and was arrested a short time later.

After being convicted, the judge sentenced Banner to nine years in state prison, calculated as the middle term of two years for attempted robbery, doubled for a prior strike conviction, plus five years for a prior serious felony conviction.

Banner appealed his conviction on four grounds, but this article’s scope will narrow down to just his argument that the newly enacted Assembly Bill 124 (effective January 1, 2022) applies retroactively and creates a presumption favoring imposition of the lower term imprisonment in this case.

The Fifth Appellate District agreed as a preliminary matter with Banner that AB 124 did apply retroactively because the judgment was not final.

It then discussed the issue of whether Banner suffered from some form of mental illness and agreed that there was substantial evidence of psychological trauma stemming from mental illness, which qualified him for the lower term presumption.  The Fifth Appellate District disagreed with the People’s argument that mental illness did not constitute psychological trauma because the new law did not limit trauma to only abuse, neglect, exploitation or sexual violence. 

The Fifth Appellate District then held that the case should be remanded to the trial court even though the trial court had determined that Banner’s mental illness was not a “significant factor” in the commission of the robberies.  The appellate court distinguished “significant factor” from “contributing factor” and pointed out that “contributing factor” was a lower standard than “significant factor,” so the trial court needed to address whether Banner’s mental illness was a “contributing factor” to the commission of the robberies.

In addition, the Fifth Appellate District noted that the trial court did not find Banner’s mental illness was a mitigating factor under the Rules of Court.  However, that finding did not preclude a finding that Banner’s psychological trauma was a contributing factor because mental illness can underlie a crime without also reducing culpability. 

We find this Fifth Appellate District ruling a “watershed” opinion for three reasons.  First, it distinguishes between “contributing factor” and “significant factor,” something most attorneys really use interchangeably in error.  Contributing factor involves less of a nexus to the crime than significant factor involves in the commission of a crime.

Second, it clarified that psychological trauma stems from mental illness and that psychological trauma is not limited to abuse, neglect, exploitation or sexual violence.  It can be other things as well.

Third, it clarified that a judge does not have to find that mental illness was a mitigating factor.  The judge must instead evaluate if psychological trauma was a contributing factor to the commission of the crime.

We expect this opinion’s precision to be cited in many requests for resentencing under AB 124 for cases that have not reached a final judgment.  Its terminology will have to be used and compared to what a judge may have stated in sentencing.

In this case, the judge discounted Banner’s mental illness as not being a significant factor in the commission of the crime, but that is not the terminology the statute requires and therefore, the lower term sentence was the presumed sentence.

We predict on remand that the judge will clarify his reasons for sentencing Banner and the sentence will not decrease.  We believe the judge will not appreciate the Fifth Circuit’s ruling and will most likely even find that the aggravating factors outweigh the mitigation circumstances from the outset, making any consideration of “psychological trauma” as a “contributing factor” unnecessary.

The citation for the Fifth Appellate District Court ruling discussed above is People v. Lamonte Shermale Banner (5th App. Dist., 2022) 74 Cal. App. 5th 191, 289 Cal. Rptr. 3d 336.

For more information about AB 124 and other recent (new) sentencing laws, please click on the following articles:
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