Opinion
B327483
10-15-2024
The PEOPLE, Plaintiff and Respondent, v. Russell Lajuear O’BANNON, Jr., Defendant and Appellant.
Rachel Varnell, Los Gatos, 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.
APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Affirmed. (Los Angeles County Super. Ct. No. VA149850)
Rachel Varnell, Los Gatos, 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.
EDMON, P. J.
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 Penal Code section 667, subdivision (a)(1). On appeal, O’Bannon contends that his trial counsel provided ineffective assistance by failing to ask the trial court to strike or to dismiss the enhancement under Senate Bill No. 81. That law gives trial courts discretion to strike or to dismiss an enhancement based on consideration of specified mitigating circumstances. In the published portion of this opinion, we address O’Bannon’s argument that a mitigating circumstance applied to him because his enhancement is based on a prior conviction more than five years old. O’Bannon measures the age of his prior conviction from the date of the prior conviction to the date he was sentenced on the current offense. However, we conclude that a prior conviction’s age is properly measured from the date of the prior conviction to the date the defendant committed his current offense. In the nonpublished portion of this opinion, we reject his other contention, that the trial court violated Senate Bill No. 567 by improperly imposing the upper term based on aggravating factors not found true by a jury or stipulated to by him. We therefore affirm the judgment.
All further undesignated statutory references are to the Penal Code.
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 (§ 245, subd. (a)(1); count 1) and mayhem (§ 203; count 4). As to count 1, the jury found that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) and, as to count 4, the jury found that he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). The trial court then found that O’Bannon had a prior serious felony (§ 667, subd. (a)(1)) and a prior serious or violent felony within the meaning of the Three Strikes law.
O’Bannon was originally charged with count 1 for assault with a deadly weapon. An amended information added count 2 for aggravated mayhem and count 3 for residential burglary, but count 3 was later dismissed. The information was again amended to replace count 2 with count 4 for ordinary mayhem.
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 District Attorney. The trial court denied the motion and sentenced O’Bannon on count 4 to the upper term of eight years, doubled to 16 years based on the strike, plus five years for the prior serious felony. The trial court imposed and stayed the sentence on the weapon enhancement and on count 1.
On direct appeal, this division remanded for resentencing. (People v. O’Bannon (Mar. 23, 2022, B309426) 2022 WL 854991 [nonpub. opn.].) 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 (Cal. Rules of Court, rule 4.421(b)(2)), he had served a prior prison term (id., rule 4.421(b)(3)), and he previously performed poorly on probation (id., rule 4.421(b)(5)).
We have taken judicial notice of the record in that matter. (Evid. Code, § 452, subd. (d).)
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 prosecu- tor 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 section 667, subdivision (a), five-year enhancement be stricken or dismissed under Senate Bill No. 81. As we explain, his counsel had no obligation to raise Senate Bill No. 81 because it did not apply to O’Bannon.
A. General principles
Section 1385, subdivisions (a) and (b), provide that a trial court may strike or dismiss an enhancement in the furtherance of justice. Effective January 1, 2022, Senate Bill No. 81 (2021-2202 Reg. Sess.) (Stats. 2021, ch. 721) added subdivision (c) to section 1385 as follows: "Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." "In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety," meaning there is a likelihood that dismissing the enhancement would result in physical injury or serious danger to others. (§ 1385, subd. (c)(2).)
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." (§ 1385, subd. (c)(2)(B).) Second, the "enhancement is based on a prior conviction that is over five years old." (§ 1385, subd. (c)(2)(H).)
[1–4] 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, 104 S.Ct. 2052, 80 L.Ed.2d 674.) 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, 47 Cal.Rptr.3d 420, 140 P.3d 736.) 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, 104 S.Ct. 2052; Stanley, at p. 954, 47 Cal.Rptr.3d 420, 140 P.3d 736.) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (Strickland, at p. 694, 104 S.Ct. 2052; Stanley, at p. 954, 47 Cal.Rptr.3d 420, 140 P.3d 736.)
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. B. Senate Bill No. 81 is not applicable to strike convictions
See footnote *, ante.
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 section 1385, subdivision (c)(2)(H), for an enhancement "based on a prior conviction that is over five years old" applied to him. He argues that his November 23, 2015 prior conviction was over five years old when he was resentenced on the current offenses in December 2022. The People counter that the prior conviction was just three years old when he committed the current offenses on January 30, 2019. The parties therefore disagree about the statute’s meaning, whether the relevant timeframe runs from the date of the prior conviction to either the date of sentencing on the current offenses or when the defendant committed them. Employing the usual rules of statutory interpretation, we agree with the People.
[5–9] 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, 239 Cal.Rptr.3d 740.) 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, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) "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, 120 Cal.Rptr.2d 795, 47 P.3d 639.) 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." (§ 1385, subd. (c)(2)(H).) Stated otherwise, how is the age of a prior conviction calculated? The face of the statute does not answer this question. The five years could be determined by, for example, (1) the date the defendant committed the current offense, (2) the date the defendant is convicted of the current offense, or (3) the date the defendant is sentenced or resentenced on the current offense. The statute does not specify which of these dates should be used.
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 Recommendations (the Report), which recommended the amendments to section 1385 that ultimately became Senate Bill No. 81, offers some insight to legislative intent. (See Sen. Rules Com., Off. of Sen. Floor Analyses, Floor Analysis Sept. 8, 2021, p. 5.) The Report endorsed dismissing sentencing enhancements that are based on a prior conviction over five years old. (Report, p. 37.) The Report stated that its recommendation "builds on existing California Rules of Court that guide judges on what circumstances they should consider in aggravation and mitigation in imposing a felony sentence, such as prior abuse, recency and frequency of prior crimes, and mental or physical condition of the defendant." (Id. at p. 41.) 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., § 13-105, subds. (22)(b) & (c) [defining "historical prior felony conviction" as certain felonies committed within the five or 10 years "immediately preceding the date of the present offense"]; Fla. Stat., § 775.084, subd. (1)(a) [washout applies if felony for which the defendant is to be sentenced was committed over five years from prior conviction or release from incarceration or supervision]; Mich. Comp. Law Ann., § 777.50 ["prior record variables" "score" excludes convictions preceding "a period of 10 or more years between the discharge date" and the "commission of the next offense resulting in a conviction"]; Minn. Sentencing Guidelines and Commentary (Aug. 1, 2023) pp. 12-13 ["criminal history score" excludes felonies if 15 years elapsed after date of sentence on prior felony and "date of the current offense"] https://mn.gov/sentencing-guidelines/guidelines/archive.jsp> [as of Oct. 15, 2024], archived at https://perma.cc/KZ2Y-PQHN>; Rev. Code of Wash., § 9.94A.525, subd. (2)(b), (c), (d), (f) [excluding certain felonies from "offender score" depending on time offender spent "in the community without committing any crime that subsequently results in a conviction"]; but see Ill. Comp. Stat., § 5/5-5-3.2, subd. (b)(1) [factor to consider when imposing extended term includes where a defendant is convicted of any felony "when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody"].)
The report was likely referencing California Rules of Court, rule 4.423(b)(1), which states that a mitigating circumstance is where the defendant "has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes." The rule also provides that a mitigating circumstance is where an "enhancement is based on a prior conviction that is over five years old." (Id., 4.423(b)(13).)
Indeed, California has a washout provision that also relies on when the defendant commits the current offense. Section 667.5, subdivision (a), provides that an additional term under it shall not be imposed "for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction." (Italics added.) Section 667.5 and laws from other jurisdictions thus demonstrate that washout periods generally end on the date 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, 68 Cal. Rptr.2d 269; In re Preston (2009) 176 Cal. App.4th 1109, 1115-1116, 98 Cal.Rptr.3d 340.) 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." (§ 1385, subd. (c)(2)(H), italics added.) In O’Bannon’s view, "is" refers to "the present moment," i.e., when the sentencing judge is considering whether to strike or to dismiss the enhancement. From this, O’Bannon extrapolates that a prior conviction’s age must be measured from the date of the prior conviction to the date of sentencing on the current offense. However, while the Legislature’s choice of verb tense can be significant in construing statutes (People v. Loeun (1997) 17 Cal.4th 1, 11, 69 Cal.Rptr.2d 776, 947 P.2d 1313), O’Bannon imputes more meaning to verb tense than it can bear in this instance. To be sure, the sentencing judge must determine, at the moment of sentencing, whether a prior conviction "is" five years old. But the word "is" does not necessarily answer how the five years is to be measured.
[10] Citing section 667.5, subdivision (a), O’Bannon suggests that the Legislature’s failure to use similar language in section 1385, subdivision (c)(2)(H), evidences its intent not to base a prior conviction’s age on the date a defendant committed the current offense. (See generally In re Jennings (2004) 34 Cal.4th 254, 273, 17 Cal.Rptr.3d 645, 95 P.3d 906 [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, 47 Cal.Rptr.3d 248, 139 P.3d 1196 [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, 280 Cal.Rptr.3d 783, 489 P.3d 1166.) We therefore decline to read too much into the Legislature’s failure to include in section 1385, subdivision (c)(2)(H) language like that in section 667.5, subdivision (a). Where, as here, the face of the statute does not state an element crucial to its implementation, we must interpret the law to give the Legislature’s intent effect.
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 section 1385, subdivision (c)(2)(H). Both appeal and both cases are remanded for resentencing. On remand, Defendant One’s resentencing hearing occurs quickly, on a date that is still less than five years from his prior conviction; section 1385, subdivision (c)(2)(H) therefore remains inapplicable to Defen- dant One. However, Defendant Two’s resentencing hearing is delayed, so that at the time of the resentencing hearing, Defendant Two’s prior conviction is now over five years old; section 1385, subdivision (c)(2)(H), therefore applies to Defendant Two. The same result could occur if the defendants’ initial sentencing hearings occur at different times, one more than five years from the prior conviction and the other less than five years from the prior conviction. This hypothetical thus demonstrates how O’Bannon’s construction of the law leads to an absurd result. Defendants One and Two are identically situated, except for the happenstance of when their sentencing hearings occurred. Yet, one is eligible for relief and the other is not. But if we instead calculate the age of their prior convictions from the date of the prior convictions to the date the defendants committed their current offenses, then neither is eligible for relief—the identically situated defendants are treated the same.
[11] 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, 250 Cal.Rptr. 635, 758 P.2d 1165 [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 section 1385, subdivision (c)(2)(H) is measured from the date of the defendant’s prior conviction to when the defendant commits the current offense.
[12] 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, section 1385, subdivision (c)(2)(H) does not apply to him. Accordingly, his trial counsel did not provide ineffective assistance by failing to raise that subdivision in the trial court.
See footnote *, ante.
DISPOSITION
The judgment is affirmed.
We concur:
EGERTON, J.
Pursuant to California Rules of Court, rules 9.76(b) and 976.1, this opinion is certified for publication with the exception of Discussion sections I.B and II.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.