Opinion
F074294
09-18-2018
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ANTHONY BANKS, Defendant and Appellant.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1459791)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Justin Anthony Banks shot a man to death, was convicted of murder, and received an aggregate prison sentence of 83 years to life. He now argues that the trial court violated his Sixth Amendment right to a public trial because, in response to concerns about disorderly behavior or potential disorderly behavior among spectators, the court began mid-trial to require spectators to show identification to the bailiff and place their names on a sign-in sheet before entering the courtroom.
Sixth Amendment case law requires a trial court to weigh certain considerations on the record before ordering even a limited closure of the courtroom. This was not done here. The rather scant case law on requiring identification as a condition of entering a courtroom, however, declines to treat this condition as a "closure" for Sixth Amendment purposes in the first place. We see no sound reason to depart from this case law. There was no Sixth Amendment violation and the identification condition was not otherwise an abuse of the trial court's discretion.
Banks also contends that his case should be remanded to the trial court so the court can exercise its discretion under the new statute known as Senate Bill 620. This statute gives trial courts discretion, which they previously lacked, to strike firearm enhancements before imposing sentence. (Banks's sentence includes a firearm enhancement of 25 years to life.) As a law allowing decreased punishment, the new statute applies retroactively to cases not yet final when the statute became effective. We order a remand for resentencing, and reject the People's view that a remand is unnecessary because it is not reasonably probable that the trial court would have imposed a lesser sentence under the new law.
FACTS AND PROCEDURAL HISTORY
A mail carrier heard a pop and saw a man shout and collapse in the street. Then he watched as Banks ran up to the man and shot him twice in the head where he lay. The mail carrier could not identify Banks as the killer. Other witnesses gave police statements that incriminated Banks, including statements that Banks had a gun that day and shot the victim, but they recanted at trial.
Banks's defense was an alibi. A cousin testified that Banks was in a park in the neighborhood, drinking with her and arguing with a friend, when they heard the gunshots.
The jury found Banks guilty of first degree willful, deliberate, and premeditated murder. (Pen. Code, § 187, subd. (a).) An allegation that Banks personally and intentionally discharged a gun proximately causing great bodily injury or death (§ 12022.53, subd. (d)) was found true. Also found true were allegations that Banks had a strike prior (§§ 1192.7, subd. (c); 667, subd. (d)) and a prior serious felony (§ 667, subd. (a)), both arising from a 2003 robbery conviction, plus four prison-term priors (§ 667.5, subd. (b)).
For first degree murder with one prior strike, the court imposed a sentence of 50 years to life. Added to this was a consecutive term of 25 years to life for the personal gun use enhancement, a consecutive five-year term for the prior serious felony, and three consecutive one-year terms for three of the prison-term priors. The enhancement for the fourth prison-term prior, which was based on the same crime as the prior serious felony enhancement, was stayed. The aggregate term was thus 83 years to life.
DISCUSSION
I. Identification requirement for entering courtroom
A. Factual background and rulings
The record indicates that there was tension and disruptiveness among spectators both in pretrial proceedings and during the trial. Friends and relatives of both the defendant and the victim attended. At the preliminary hearing, the bailiff at one point found it necessary to warn the spectators that he would exclude any spectator engaged in harassing anyone. He also felt a need to release the two groups of spectators separately for a recess. After the recess, before ruling on whether Banks would be bound over for trial, the court warned the spectators against emotional outbursts and fighting, and said any spectators who thought they could not contain themselves when he ruled should step outside.
On the first day of trial, the court announced that it had been told there were "some issues that exist amongst and between the various families and friends and relatives." It said it would not tolerate any kind of misconduct and would exclude anyone engaging in it. The same day, the prosecutor informed the court that at a post-preliminary hearing before a different judge two years earlier, the victim's mother had had an emotional outburst, and that judge had excluded her from all subsequent proceedings. The prosecutor asked the current judge to allow her to attend. The judge agreed, but said any inappropriate outbursts would result in exclusion of her or anyone else.
At the end of the second day of trial, the court again cautioned the spectators, this time expressing concern about people entering and exiting the courtroom too often during the proceedings, among other things. It said, "So either you are going to come in and you are going to sit and quietly listen and not make any gestures and not make any faces or you are going to be excused."
The court announced its decision to institute identification checks for spectators at the beginning of the third day of trial: "Due to my concerns with regard to potential security problems, the sheriff's office is going to be putting up a table immediately outside my courtroom to check people as they come in and have them provide identification." There also were sign-in sheets for the spectators, on which deputies collected spectators' signatures and driver's license numbers. The court further stated it had ordered the deputies not to allow people who left the courtroom to re-enter until the court took a break. Defense counsel made an objection, stating that Banks's right to a public trial was infringed by the identification requirement, because some spectators might not have identification. The objection was overruled.
There were incidents after the identity checks began. On the afternoon of the third day of trial, defense counsel informed the court that two men who identified themselves as relatives of the victim had approached him outside the courthouse, and had stood close to him and asked why he had "to go point the finger" at the victim. Counsel said he was somewhat afraid for his safety. On the morning of the fifth day of trial, the court announced to counsel that "there was some sort of a confrontation" between the two groups of spectators outside the courthouse. The police had been called. While the court and parties were discussing this incident, the prosecutor mentioned that there had been "issues with verbal confrontations in the hallway," and said he was "concerned about the ongoing palpable tension between" the two groups.
At the end of this discussion, defense counsel told the court he had learned that some people had been turned away because they lacked identification. He renewed his objection based on the public trial clause, and moved for a mistrial. The court overruled the objection and denied the motion. It stated a finding that the identification procedure was "reasonably necessary to provide security to this courtroom and to the jurors in this case based on [the court's] own observations of what has been going on."
B. Analysis
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a ... public trial ...." (U.S. Const., amend. VI; see Presley v. Georgia (2010) 558 U.S. 209, 211-212.) The California Constitution provides a coextensive public trial right. (Cal. Const., art. I, § 15; see People v. Woodward (1992) 4 Cal.4th 376, 381 (Woodward).) If the right to a public trial is violated, the error is reversible without regard to prejudice. (People v. Prince (2007) 40 Cal.4th 1179, 1276.)
"Under normal conditions a public trial is one which is open to the general public at all times." (People v. Byrnes (1948) 84 Cal.App.2d 72, 73; People v. Frutos (1984) 158 Cal.App.3d 979, 987.)
Before public access to a criminal trial can be denied—that is, before a trial judge can order measures that have the effect of a broad or narrow "closure" of the courtroom to the public—several requirements must be satisfied. First, it must be true that if the measures in question are not ordered, an "overriding interest" will likely be harmed. Second, the closure must be "no broader than necessary" to protect the overriding interest. Third, the trial court must consider "reasonable alternatives" to the measures under consideration. Finally, the interest being protected must be "'articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.'" (Waller v. Georgia (1984) 467 U.S. 39, 45, 48.) These specific findings must be in writing. (Woodward, supra, 4 Cal.4th at p. 383.)
In this case, the trial court did not satisfy all of these requirements. The People do not claim otherwise. Instead, they argue that the courtroom was not closed to the public by the procedures the court ordered.
The People's position is based on a small number of cases, none constituting binding authority for us, in which situations similar to the one here were considered. In People v. England (2000) 83 Cal.App.4th 772 (England), the defendant was a prisoner tried for assaulting correctional officers. (Id. at pp. 775-776.) The trial took place in a courtroom on the grounds of High Desert State Prison. (Id. at p. 776.) This courtroom satisfied requirements for public accessibility of courtrooms on prison grounds as set forth in the Standards of Judicial Administration, but visitors still had to present identification at the gate. (Id. at pp. 776-778.) The Court of Appeal rejected the defendant's argument that this situation violated his constitutional right to a public trial, concluding there was no closure:
"In this case, the court did not close the trial to the public. Defendant argues only that it was more difficult for the public to attend because some people would be dissuaded from attending a proceeding held on prison grounds and some would resent having to identify themselves to prison officials to gain access to the grounds. Neither concern impacts
defendant's right to a public trial." (England, supra, 83 Cal.App.4th at p. 778.)
The court observed that there was "no general exclusion of the public" and viewed the identification requirement as "minimal and unintrusive." (England, supra, 83 Cal.App.4th at p. 779.) It did not refer to the requirements set forth in Waller.
England cited People v. Remiro (1979) 89 Cal.App.3d 809, which was decided before Waller, but remains instructive. (England, supra, 83 Cal.App.4th at p. 779.) The defendants in Remiro were members of the Symbionese Liberation Army (SLA) accused of the murder and attempted murder of Oakland school officials. (Remiro, supra, 89 Cal.App.3d at pp. 815-817.) The sheriff's department issued an order requiring members of the public seeking admission to the trial to be photographed, fingerprinted, and searched. On the eleventh day of the 46-day trial, the trial court ordered that the fingerprinting be stopped, but upheld the rest of the order. The courthouse had received a bomb threat and the court was concerned about the possibility of violence by the SLA and by other groups supporting and opposing it. Leaflets were distributed outside the courthouse describing the defendants as prisoners of war and urging demonstrations for their release. Members of the Weather Underground, which had claimed responsibility for acts of violence, attended. The defendant attacked a prosecution witness on the witness stand as a spectator urged the defendant to kill the witness. The Court of Appeal rejected the defendants' argument that the security measures violated their right to a public trial because they discouraged some members of the public from attending. It found the security measures were reasonable under the circumstances and did not effect a "wholesale exclusion of the public." (Id. at pp. 847-848.)
In Williams v. State (Ind. 1997) 690 N.E.2d 162, the defendants were members of a drug gang charged with murder after they sprayed gunfire into an apartment building. (Id. at pp. 165-166.) The trial court approved security procedures requiring spectators to pass through a metal detector, show identification, and sign in. The Indiana Supreme Court held that these requirements did not violate the defendants' right to a public trial. Further, it was unnecessary for the trial court to satisfy the Waller requirements, because its order did not amount to either a partial or a total closure of the proceedings to the public and did not "actively exclude[] anyone." In the justices' view, exclusion would involve "an affirmative act specifically barring some or all members of the public from attending a proceeding." The court acknowledged that the procedures rendered the trial "marginally less 'open'" because people with no identification would be excluded, but it concluded this did not affect the defendants' right to a public trial. Further, although there might have been "constructive exclusion" of those among the defendants' fellow gang members who did not want to identify themselves to law enforcement officers, the defendants' constitutional right to a public trial did not protect against such constructive exclusion. (Williams, supra, at pp. 167-169.) The court also opined that, although the point was not at issue in the case before it, the considerations governing the First Amendment rights of the public to attend trials were different; procedures excluding those who did not show identification would implicate these rights and would require the trial court to state a reasoned justification on the record. (Williams, supra, at pp. 169-170.)
Without endorsing all the reasoning in these cases, we are persuaded that they reached the right results, and that the present case is analogous to them. To the extent that the security procedures employed here deterred members of the public who simply did not want to present identification, we think they cannot be viewed as effecting any sort of exclusion or closure. We are aware of no authority supporting the view that the Sixth Amendment guarantees a trial open to an anonymous public. The only individuals truly excluded from the proceedings by the court's order, and not by their own choice to remain anonymous to court personnel, were those who actually did not possess any identification. But the court did not single out these individuals and they were not excluded because the court undertook to exclude some class of individuals. They were excluded as a side effect of a measure justified on independent grounds, just as, for example, people without transportation would be excluded from a trial held in a courthouse at a distance from the jurisdiction of the crime because of a change of venue. Where the exclusion arises in this manner, we hold there is no violation of the accused's right to a public trial and the requirements of Waller are not triggered, at least where the number of people excluded can reasonably be estimated to be marginal. We also believe this approach is generally consistent with the above cases.
Banks's constitutional claim being unfounded, the remaining question on the security measures is whether they exceeded the bounds of reason and therefore constituted an abuse of the trial court's usual discretion to control the courtroom. (See People v. Ayala (2000) 23 Cal.4th 225, 252-253.) Measures that do not violate the constitution could still be an abuse of discretion. Banks identifies no such abuse, however, and we perceive none. II. Senate Bill No. 620
The statute known as Senate Bill No. 620, signed by the Governor on October 11, 2017, and effective January 1, 2018, added the following language to the firearm enhancement provisions in sections 12022.5 and 12022.53:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c), 12022.53, subd. (h); Stats. 2017, ch. 682, § 1.)The new legislation thus granted trial courts new discretion to strike firearm enhancements they did not previously possess.
Banks received a sentence enhancement of 25 years to life under section 12022.53, subdivision (d). He argues that the new provision should be applied to him retroactively, both because of the "any resentencing" language, and because the statute lessens the potential punishment for certain crimes within the meaning of In re Estrada (1965) 63 Cal.2d 740, 745. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091 [applying Senate Bill No. 620 to case not yet final when law became effective]; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679 [same].) The People concede that point. They argue, however, that in this case, the sentencing court's non-application of the new law is harmless, and a remand is unnecessary, because there is no reasonable probability that the court would have struck the enhancement if it had exercised discretion on the issue. This is so, the People contend, because of remarks and findings the court made at the sentencing hearing. It stated that it would have imposed the fourth prior prison term enhancement under section 667.5, subdivision (b), if the law had allowed it to do so. It also said the sentence was "the maximum that [the court] can impose and is justified under the circumstances." It said the crime was "of [the] utmost seriousness." When listing aggravating factors, the court stated that the crime involved great violence and was carried out with planning, sophistication and professionalism; the defendant was a serious danger to society, had numerous prior convictions of increasing violence, and his prior performance on probation and parole was totally unsatisfactory. It found no mitigating factors.
The case law does not support the People's view that remand is appropriate only when there is a reasonable probability of a better outcome. In People v. McDaniels (2018) 22 Cal.App.5th 420 (McDaniels), a case presenting the same issue we face here, the Court of Appeal cited People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez). In Gutierrez, the Court of Appeal considered a remand for resentencing after People v. Superior Court (Romero) (1996) 13 Cal.4th 497 gave trial courts discretion to strike prior strikes. The Gutierrez court stated that remand was necessary "unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations." (Gutierrez, supra, 48 Cal.App.4th at p. 1896, italics added.) Observing that the trial court had exercised its discretion not to strike a different enhancement and commented that it did not believe the sentence should be shortened, the Court of Appeal concluded that the necessary clear indication was present, so it declined to remand. (Ibid.) Applying the same standard, the McDaniels court remanded for resentencing, finding that "the record contains no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements." (McDaniels, supra, at pp. 427-428.)
Although it does not mention it, McDaniels is supported by another case called Gutierrez, i.e., People v. Gutierrez (2014) 58 Cal.4th 1354. There, at the time of sentencing, the governing law included a presumption that juvenile defendants found guilty of certain crimes under certain circumstances would be sentenced to life in prison without the possibility of parole. A change in the law, which was held to apply retroactively to cases still pending on direct appeal, dictated that this presumption be removed, thus increasing the scope of sentencing judges' discretion. Our Supreme Court held that for defendants sentenced under the former law to whom the new law applied retroactively, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) In support of this conclusion, the court stated, "'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.'" (Ibid.)
In each of the cases discussed above, remand was required absent a clear indication in the record that the sentencing court would not have exercised its discretion to the defendant's benefit had it known of that discretion. This approach is more favorable to remand than the approach recommended by the People, under which remand would be denied whenever the totality of the circumstances indicates it is not reasonably probable that the sentencing court would have struck the enhancement.
The People cite People v. Almanza (2018) 21 Cal.App.5th 1308, in which the Court of Appeal held that the amendments in Senate Bill No. 620 applied retroactively, but still declined to remand because the crime was coldblooded, the defendant had an extensive criminal history, and the trial court chose to make sentences for two counts run consecutively, a choice it would not have made had it been inclined to be lenient. In light of these factors, there was no reasonable probability that the trial court would have struck the defendant's firearm enhancement had it had discretion to do so. After the briefing in this case was completed, however, the Court of Appeal granted rehearing in Almanza and withdrew its opinion. Subsequently, the court issued a new opinion, in which it rejected the reasonable probability standard advanced by the People here. It adopted the approach of McDaniels and remanded to allow the trial court to reconsider the sentence in light of the amended statute. (People v. Almanza (2018) 24 Cal.App.5th 1104.)
We agree with the McDaniels approach. Unless the sentencing court clearly indicates it would not have struck the enhancements in question if it could, determining what it would likely have done had it possessed the new discretion is an inherently speculative enterprise. The new law creates a drastic increase in the range of sentences available for certain convictions. For defendants with enhancement findings under section 12022.53, subdivision (d), like Banks, trial courts now have the power to enhance the base sentence by 25 years to life or not at all. This is so even though every case in which a section 12022.53, subdivision (d) allegation is found true is a case involving extreme violence, since the defendant must have personally and intentionally discharged a firearm, proximately causing great bodily injury or death. There has been a legislative determination that striking the enhancement will, nevertheless, sometimes be appropriate. In light of this, sentencing courts might come to view cases of this kind differently and develop new sentencing norms. The Legislature has changed the legal environment for cases such as this, with unpredictable consequences. At the same time, the stakes for defendants can be very high. For Banks, the difference is between having a possibility of being released during his lifetime and having no such possibility. Given this state of affairs, we think remand of such cases is appropriate unless the record makes unmistakable the trial court's intentions with respect to the firearm enhancement.
Here, the trial court said it believed the sentence was justified and that it would have imposed an additional year under section 667.5, subdivision (b), if that had been possible. It did not say anything specifically about the firearm enhancement, apart from the words necessary to impose it. To say one would like to impose an additional year if possible is not a matter of the same gravity as opting to add 25 years to life. The greater gravity of the latter decision might induce a different thought process. Given this, and the new environment created by the new statute, we cannot be confident that the same sentence would have been imposed had the law been as it is now.
Remand is appropriate. Nothing in this opinion should be construed as expressing any view about how the trial court should exercise its discretion on remand.
DISPOSITION
The sentence is vacated and the case is remanded to the trial court for resentencing in light of section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 1). The judgment is otherwise affirmed.
/s/_________
SMITH, J. I CONCUR: /s/_________
FRANSON, J. POOCHIGIAN, Acting P.J., Concurring.
I concur with the disposition but write separately to offer a clarifying perspective.
The majority refers to increases in the range of sentences, trial courts' "power to enhance the base sentence by 25 years to life or not at all," lack of predictable consequences, and "the stakes for defendants" being "very high." (Maj. opn., ante, at pp. 12-13, original italics.) I respectfully disagree with these descriptions of the case before us.
Senate Bill No. 620 (Stats. 2017, ch. 682, § 1) is but one of a series of reforms over the past few years that have been implemented by voter initiative and legislation with the common effect of reducing, or potentially reducing, the duration of incarceration. Indeed, in the case of Senate Bill No. 620, the legislative history evinces the author's view that " 'longer sentences do not deter crime or protect public safety....' " (Sen. Rules Com., Off. of Sen. Floor Analyses, Sen Bill No. 620 (2017-2018 Reg. Sess., Sept. 13, 2017, pp. 4-5.) The statutory purpose and effect of Senate Bill No. 620 is to provide relief to certain felons of sentence enhancements that were mandatory before enactment of Senate Bill No. 620 by giving trial judges the discretion to avoid imposition of additional time for crimes involving the use of firearms.
I know of no circumstance - intended or speculative - that would result in longer sentences for firearm violations due to passage of Senate Bill No. 620.
At the time of the sentencing hearing in this case, the superior court was statutorily prohibited from considering whether to exercise its discretion to impose the Penal Code section 12022.53 enhancement. It was required to impose the enhancement, and thus did not make any discretionary sentencing findings that would eliminate the need for a remand in this case. The matter must be remanded for the court to determine in the first instance whether to exercise its new statutory discretion to strike the firearm enhancement under Penal Code section 12022.53, subdivision (h). Such a remand does not mean that the court must strike the enhancement, only that the court must consider whether to exercise is discretion pursuant to the newly-enacted provisions of Penal Code section 12022.53, subdivision (h). If the court does decide to exercise its discretion, then Senate Bill No. 620 will have had the effect of reducing defendant's sentence, not increasing it.
/s/_________
POOCHIGIAN, Acting P.J.