Opinion
F079858
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. LARRY BANKS, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F08907825)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Snauffer, J.
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STATEMENT OF APPEALABILITY
This is an appeal from the denial of appellant Larry Banks's petition for resentencing under Penal Code section 1170.95, and is authorized by section 1237, subdivision (b). (See Teal v. Superior Court (2014) 60 Cal.4th 595, 596.)
Unlabeled statutory references are to the Penal Code.
STATEMENT OF THE CASE
An information filed on March 24, 2009, charged Banks with murder (§ 187; count one). The information further alleged that Banks personally used a knife in the commission of count one (§ 12022). On September 23, 2009, a jury found Banks guilty of first degree murder and found the knife use enhancement true. The trial court sentenced Banks to life pursuant to section 1170.2 and former section 190. In Banks's prior appeal, this court affirmed the judgment. (See People v. Banks (Mar. 17, 2011, F058831) [nonpub. opn.].)
On March 13, 2019, Banks filed a petition for resentencing under section 1170.95. The prosecution filed two separate responses to Banks's petition on April 25, 2019. In one filing, the prosecution argued that Banks had not stated a prima facie case for relief. In the other, the prosecution argued that Senate Bill No. 1437 is unconstitutional. The defense filed a reply to the prosecution's response on May 22, 2019. The prosecution filed a supplemental brief on Banks's petition on May 28, 2019.
At a hearing on August 26, 2019, at which Banks was present, the trial court denied Banks's petition, finding that he did not state a prima facie case for relief. The trial court noted that both at trial and upon review by the appellate court, "[the] defendant was determined to be the actual killer who killed during the commission of the felony listed in Penal Code Section 189. Thus, the relief provided by SB 1437 is not available to the defendant." The trial court did not address the prosecution's alternative arguments regarding the constitutionality of Senate Bill No. 1437.
Banks filed a timely notice of appeal from the denial of his petition on August 27, 2019.
STATEMENT OF FACTS
This Statement of Facts is taken largely from the prior Court of Appeal opinion. (People v. Banks, supra, F058831.) --------
In 1977 Susan Vallin lived with her sister Barbara. Susan was dating Larry Ballesteros and Barbara was dating David Castillo. On the evening of May 10, 1977, Susan and Ballesteros got in an argument. Susan, Barbara, and Castillo, dropped Ballesteros off at a bar at 9:00 p.m. or 10:00 p.m. and then returned back to Susan's apartment. Susan left and went for a walk.
Catherine Meyers and Kim Foster were preparing to watch a television program when they heard an odd scream, described by Meyers as a "gurgling scream." Foster grabbed a gun, told Meyers to call the police, and went outside. Meyers looked out a window. Meyers saw someone jogging by. The jogger was wearing a hooded sweatshirt and was carrying a knife. She described the individual as African-American, five feet eight or five feet nine inches tall, weighing 150 to 170 pounds. Meyers also said the jogger was agile and appeared to be under 30 years old. Foster saw someone jog by. The person was medium height and fairly slim, wearing a hooded sweatshirt. Foster thought the person was black.
The police department received a call at 10:43 p.m. that reported a woman screaming. Police officers responded to the area and found Susan's body near a carport. She was unclothed except for her pants, which were around her left leg. She had shoes on and was wearing jewelry. She did not have any money on her person or in her clothing. There was dirt on her buttocks and back side. A blood trail led across the alley to a secluded area.
Homicide investigators determined that it was likely that Susan was initially attacked in a concealed area between a fence and a shed. In that area, the dirt was disturbed and there was a pool of blood, blood splatters, her blouse and a cigarette.
It was approximately a 13-minute walk between Susan's residence and where her body was found. Police went to the home of Susan's relatives to notify them of her death. Ballesteros was there and the family was arguing with him.
Ballesteros went to the police station and gave a statement. He told police that he and Susan argued after which he went to a bar and stayed until closing. He said the owner of the bar and the waitress could confirm that he was at the bar during the time he claimed to be there. He said he returned to Susan's by taxi. When he returned he was confronted by members of Susan's family.
At trial Ballesteros recalled the evening a little differently. He said he was drinking at the bar. He left with three women and they dropped him off at about 11:30 p.m.
Susan sustained three stab wounds to the right side of her neck. One of the wounds was lethal. The cut was from a knife with a two-edged blade. She suffered many abrasions, bruises and some lacerations. She had a deep bruise to the right side of her forehead that occurred before she was stabbed and she had a bruised lip. The abrasions on her face were from a blunt blow. The abrasions on her back could have been because she was on her back on gravel when she was attacked. She had abrasions above and below her knees and abrasions on her arms. Because of the way blood was dripping, Susan may have been on her knees when she was stabbed. The location of the stab wounds were consistent with the attacker holding the knife in his left hand. The injuries did not compare to a normal kitchen knife. There were no abrasions or evidence of forced sexual penetration.
Due to advancements in DNA testing, investigators decided, in 1999, to test Susan's clothing. There were visible stains on the blouse and on the pocket and crotch area of the jeans. Because DNA had not been collected from Susan at the time of her murder, reference samples of DNA were obtained from her parents.
A criminalist retrieved DNA from a sperm stain on the blouse. She put the DNA profile in the system and it came back with a "hit" for defendant. Officers obtained a DNA sample from defendant, who was in prison.
One of the samples on the blouse contained a combination of DNA from defendant and a child of John and Grace Vallin (Susan's parents). There was a mixed profile obtained from the jeans sample. The major portion of the profile was consistent with defendant. The minor portion was from a child of John and Grace Vallin. The criminalist was able to make a statistical statement from a sperm stain on the blouse that was not a mixture. This stain matched defendant's profile. The DNA profile is expected to occur in a randomly selected individual in approximately 1 in 12 trillion African-Americans; approximately 1 in 150 trillion Caucasians; and approximately 1 in 900 trillion Hispanics. None of the DNA extracted from Susan's clothing matched Larry Ballesteros; there was a sample from the jeans indicating a possible third contributor.
Defendant was released on parole on March 17, 1977. Following his release he lived with his mother for two or three months. She testified that he was left-handed and of average, thin build.
Defendant is five feet seven inches tall. The distance between his mother's house and where Susan lived was approximately one-tenth of a mile. The distance between where Susan's body was found and defendant's mother's house was eight-tenths of a mile.
The court allowed the people to present evidence of a former sexual assault by defendant. L.P., formerly L.M., testified that in 1971 she and her husband owned a fruit stand. She was in the back room with her husband when two young "kids" entered their business. One of the individuals had a rifle. Defendant was one of the individuals. L.P.'s husband was told to get on the floor. Defendant told L.P. to get on her knees. He hit L.P. with a rifle, unzipped his pants and pulled L.P's pants down. He used her pants, which were hanging on one leg, to trip her. Defendant then sat on her chest trying to force her to open her mouth. He choked her and hit her in the head with the butt of the rifle. Defendant and the other assailant heard sirens and then ran out of the business. L.P identified defendant from a photographic lineup and again at the preliminary hearing.
It was stipulated at trial that defendant was the person who attacked L.P. in 1971, that he pled guilty to first degree robbery, and that one count of robbery and one count of assault to commit rape were dismissed.
DEFENSE
Susan's sister Mary was 17 years old, her sister Rose Marie was 11 years old, and her sister Jennie was 13 years old at the time Susan was murdered.
Mary testified that when Larry Ballesteros arrived in a taxi cab after Susan had been murdered he looked up and grinned like he knew something "was up." Someone said that Ballesteros had some bloody clothes that he hid. She, her father, and sister found some clothes and took them to the police. The police told her father to leave Fresno and not come back.
Rose Marie testified that on the day of Susan's murder she was at Susan's apartment. She saw Ballesteros putting a kitchen knife in his sock. She did not tell anyone about the knife until years later.
Jennie testified that she was at Susan's apartment when Ballesteros came over at 4:00 p.m. or 5:00 p.m. He tried to get Jennie to go in the other room with him. She did not go into the other room because she did not trust him. She also saw Ballesteros walking from where Susan was killed. He was wearing different clothes than what he had worn earlier in the day and was not carrying his knife, which he usually carried with him.
R.M. testified that Ballesteros raped her in 1983. He told her that if she did not do what he asked, he would kill her like he had killed his girlfriend.
APPELLATE COURT REVIEW
Banks's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating Banks was advised he could file his own brief with this court. By letter on November 22, 2019, we invited Banks to submit additional briefing.
On December 12, 2019, Banks responded to our invitation with a five-page letter, which this court has read and considered. To the extent his letter raises issues with regard to the evidence in his underlying trial, those issues were previously considered in connection with the direct appeal and shed no light on the Senate Bill No. 1437 issue presented here.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.