AB 124-Sentencing to lower term for childhood trauma-applies retroactively

THE PEOPLE, Plaintiff and Respondent, v. LAMONTE SHERMALE BANNER, Defendant and Appellant. In Re LAMONTE SHERMALE BANNER, On Habeas Corpus. (Cal. Ct. App., Apr. 8, 2022, No. F079770) 2022 WL 1055186

Background: Banner was convicted of two counts of attempted robbery (§ 212.5). The charges included allegations of prior strike and prior serious felony convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667, subd. (a).) He was sentenced to serve nine years in state prison, calculated as the middle term of two years for attempted robbery, doubled for the prior strike conviction, plus five years for the prior serious felony conviction.

AB 124 Applies Retroactively
AB 124, enacted after the sentencing hearing in this case, amended section 1170. It provides:
“[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of 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.” (§§ 1170, subds. (b)(6) & (b)(6)(A).)

Banner asserts that this sentencing presumption applies retroactively on appeal. The People agreed but argued that (1) mental illness itself does not equal “trauma” and (2) the trial court did not otherwise believe Banner’s mental illness was a “contributing factor in the commission of the offenses.”
The court held that AB 124 applies retroactively to nonfinal cases on direct appeal. It also held that remand is for a new sentencing hearing in this case is warranted.
Retroactivity of AB 124
“[A]bsent evidence to the contrary, [we presume] the Legislature intended amendments to statutes that reduce punishment for a particular crime to apply to all whose judgments are not yet final on the amendments’ operative date.” (People v. Lopez (2021) 73 Cal.App.5th 327, 344.) This includes statutes that merely make a reduced punishment possible. Because AB 124 and its implementation are silent regarding retroactivity, it does apply to all nonfinal cases on appeal. (Lopez, supra, at p. 344.; In re Estrada (1965) 63 Cal.2d 740, 744-746.)
Presumption for lower term applies to mental illness
Psychological trauma stemming from mental illness invokes the lower term presumption in section 1170, subdivision (b)(6). Here, the trial court’s findings do not preclude the possibility it might conclude psychological trauma based on mental illness was a factor contributing to Banner’s crime.
Psychological Trauma and Mental Illness
AB 124 sentencing presumption applies when a “person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence,” and that trauma “was a contributing factor in the commission of the offense ….” (§§ 1170, subds. (b)(6) & (b)(6)(A).) Mental illness can result in psychological trauma.
The criminal justice system in California evidences a correlation between mental illness, psychological trauma, indigency, and crime.
The statute’s plain language states trauma is “not limited to abuse, neglect, exploitation, or sexual violence.” (§ 1170, subds. (b)(6)(A).) The statute’s language is plain and unambiguous. The court did not hold that mental illness alone qualifies for the lower term presumption. Psychological trauma must attend the illness, and that trauma must contribute to the crime under section 1170, subdivision (b)(6).
Mental Illness as a Contributing Factor
Banner argues that “a ‘contributing factor’ is something less than a ‘significant factor.’ Therefore, even if [his] mental illness was not a ‘significant factor’ in [the] crime, it could have been a ‘contributing factor’ in the crime. The court agreed that a contributing factor (§ 1170, subd. (b)(6)) is less than a significant factor (§ 1001.36, subd. (b)(1)(B)). The difference is inherent in the respective statutes.
Under section 1001.36 mental health diversion, both conviction and imprisonment are entirely avoided. Under section 1170, subdivision (b)(6), neither conviction nor imprisonment are avoided, but instead there is a rebuttable presumption favoring a lower term prison sentence. A standard resulting in neither conviction nor imprisonment is stricter than a standard that potentially mitigates a prison sentence.
Because the respective statutory standards are different, the trial court’s conclusion Banner’s mental illness was not a significant factor in the crime does not include a finding it was a lesser contributing factor. A court could find psychological trauma induced by mental illness a contributing factor in a crime notwithstanding the fact the person was lucid at the time of the crime.

The trial court did not formally find Banner’s mental illness a factor in mitigation at the sentencing hearing. The Rules of Court list “suffering from a mental or physical condition that significantly reduced culpability for the crime” as a mitigating factor. (Cal. Rules of Court, rule 4.423, subd. (b)(2).) The Supreme Court has made clear mental illness may underlay a crime without also significantly reducing culpability. (Frahs, supra, 9 Cal.5th at pp. 638-639.) Not finding mental illness a mitigating factor under the Rules of Court does not preclude a separate finding psychological trauma is a contributing factor to the crime under section 1170, subdivision (b)(6).
In these circumstances, “the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion” under the law as it now exists. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The record here does not make it clear the court would have selected the middle term when pronouncing judgment had AB 124 been in effect at the time therefore a remand is warranted.


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