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California Court of Appeal: Assembly Bill 124 Applies Retroactively and Includes Psychological Trauma Based Upon Mental Illness as Mitigating Factor Under § 1170(b)(6)

by Harold Hempstead

On April 8, 2022, the Court of Appeal of California, Fifth Appellate District, held that Assembly Bill No. 124 (2021-2022. Reg. Sess.) (Stats. 2021, ch. 695, §§ 5-6) (“AB-124”) applies retroactively to all judgments that were not yet final on the date that the law was passed, allowing consideration of psychological trauma based on mental illness as a mitigating factor under Pen. Code § 1170(b)(6), even in the absence of a mental health finding under Cal. Rules of Court, rule 4.423(b)(2).

Lamonte S. Banner was charged and convicted by a jury on two counts of attempted robbery of two restaurant employees for allegedly attempting to rob them with a fake gun. He was sentenced to a nine-year prison sentence.

Banner appealed and filed a habeas petition. After, the Court of Appeal denied the grounds in his appeal and in his petition, he sought rehearing contending that (1) the Court misunderstood the mental health diversion laws and (2) the newly enacted AB 124 “applies retroactively and creates a presumption favoring imposing the lower term of imprisonment in his case.”

The Court rejected the mental health diversion law claim. Regarding the AB 124 claim, the Court ruled that AB 124 applies retroactively to nonfinal cases on direct appeal, so Banner is entitled to be resentenced consistent with the lower presumption in § 1170(b)(6).

The Court observed that, unless there’s evidence to the contrary, the presumption is that the Legislature intended amendments to statutes that reduce punishment apply to all nonfinal judgments as of the effective date thereof. People v. Lopez, 73 Cal. App. 5th 327 (2021). AB 124 is silent regarding retroactivity, so the Court stated it applies to all nonfinal cases on appeal. Lopez; In re Estrada, 408 P.2d 948 (Cal. 1065).

AB 124, which was enacted after Banner’s sentencing hearing, amended § 1170 to read, in relevant part, as follows:

“[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(b)(6) & (b)(6)(A).

The People argued that the trial court record showed that Banner had a mental illness, but AB 124 does not list mental illness. Additionally, the People claimed that the trial court concluded that Banner’s mental illness was not a significant factor in the commission of his crimes. Thus, the People contended that Banner should be denied relief.

The Court rejected that argument, opining that it “strains credulity to conclude mental illness cannot result in psychological trauma” and stating that there is no ambiguity in AB 124, which states that “trauma” is not limited to, abuse, neglect, exploitation, or sexual violence. § 1170 (b)(6)(A). Thus, the Court held “psychological trauma based on mental illness may be a circumstance qualifying for the lower term presumption in section 1170, subdivision (b)(6).” (emphasis supplied)

Applying the foregoing principle to the present case, the Court explained that whether remand is warranted depends on whether the trial court already concluded that Banner’s mental illness was not a contributing factor to the crime. The People argued that the trial court had already ruled that his mental illness was not a significant factor, so remand is not justified. Banner countered that a “contributing factor” (§ 1170(b)(6)) is something less than a “significant factor” § 1001.36(b)(1)(B)).

The Court agreed with Banner. So even though his mental illness was not a significant factor in the crime, it could still have been a contributing factor, the Court reasoned. It explained that the trial court’s conclusion that his mental illness wasn’t a significant factor doesn’t automatically mean it wasn’t a contributing factor, so denial of remand can’t be based on this factor. Furthermore, simply because the trial court didn’t find his mental illness a mitigating factor under Cal. Rules of Court, rule 4.423(b)(2), the California Supreme Court has made it clear that mental illness constitutes a factor in the commission of the crime without also reducing culpability. People v. Frahs, 466 P.3d 844 (Cal. 2020). Therefore, the Court concluded that “not finding mental illness a mitigating factor under the California Rules of Court does not preclude a separate finding psychological trauma is a contributing factor to the crime under section 1170, subdivision (b)(6).”

Accordingly, since the trial court’s record is unclear as to whether the court would have selected the middle term when pronouncing judgment had AB 124 been in effect at that time, the Court remanded the case to the trial court to resentence Banner consistent with § 1170(b)(6). See: People v. Banner, 2022 Cal. App. 296 (2022). 

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People v. Banner

 

 

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