The opinion
Filed 7/23/24 P. v. Banks CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B331822
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA513344
v.
RODNEY BANKS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert C. Vanderet, Judge. Affirmed in part,
vacated in part, and remanded with instructions.
Maria Leftwich, 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, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Rodney Banks of the crime of possession of
a firearm by a felon in violation of Penal Code1, section 29800,
subdivision (a)(1). Over the objection of Banks’s counsel, who
argued that Banks was entitled to a jury trial on the prior strike
allegations against him, the court took judicial notice of Banks’s
two strike priors and sentenced him to the midterm of two years,
which the court doubled pursuant to section 1170.12. On appeal,
Banks argues that he was entitled to a jury trial on the prior
strike allegations under sections 1025 and 1158 and that the
denial of any trial on those allegations violated his due process
rights. The Attorney General concedes, and we agree, that the
court erred in denying Banks a jury trial on the prior strike
allegations and that the appropriate remedy is to remand for
further proceedings.
Accordingly, we vacate the implicit “true” findings on
Banks’s prior strikes2 and his sentence, and remand the matter
to the trial court for further proceedings.
FACTUAL BACKGROUND
On March 11, 2023, Officer Omar Covarrubias and his
partner were patrolling an apartment complex when they
observed a group in the apartment parking lot. The officers
observed one individual walking quickly away from the group,
which caught their attention. Officer Covarrubias identified the
1 All undesignated statutory references are to the Penal Code.
2 As discussed below, the trial court made no express findings
regarding the truth of Banks’s alleged prior strikes.
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individual as Banks. Banks exited the apartment building gate
and began running, angling his body away from the officers.
Officer Covarrubias began chasing Banks when he heard a patrol
car screech to a stop. Banks turned around and started running
back towards the apartment building. Officer Ferdy Cordero, who
was in the patrol car, saw Banks throw a firearm and yelled to
Officer Covarrubias that Banks “had tossed it.” Officer
Covarrubias eventually detained Banks while Officer Cordero
attempted to locate the firearm. Officer Cordero recovered a
loaded .45 caliber handgun.
PROCEDURAL BACKGROUND
An amended information dated June 6, 2023, alleged that
Banks committed the crime of possession of a firearm by a felon
in violation of section 29800, subdivision (a)(1) (count 1). The
amended information alleged that Banks had previously been
convicted of first degree burglary on two occasions (§ 459),
possession of a firearm by a felon, and carrying a loaded firearm
(§ 25850, subd. (a)). It further alleged that Banks was subject to
sentencing pursuant to California’s Three Strikes Law (§ 667,
subds. (b)–(j)) and section 1170.12 because his first degree
burglary convictions were serious and/or violent felonies. It also
alleged three circumstances in aggravation under rule
4.421(b)(3), (4), and (5) of the California Rules of Court: that
Banks had served a prior term in prison, he was on probation at
the time he committed count 1, and he had previously performed
unsatisfactorily on probation and parole.
Banks pleaded not guilty to count 1 and denied all special
allegations.
A jury trial was held in June 2023. The parties stipulated
that Banks was legally prohibited from possessing a firearm. At
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no point before or during the trial did the court and counsel
discuss how the strike priors and circumstances in aggravation
would be handled. The jury found Banks guilty on count 1. The
court dismissed the jury without asking it to determine the truth
of the strike priors or the allegations of circumstances in
aggravation.
After the jury was dismissed, the prosecutor said, “So
here’s the thing, Your Honor. So in the information, we do have a
number of aggravating factors, which I know we didn’t discuss
before the trial but I guess we assumed that they’d be bifurcated,
which they usually are, or we’d have to offer a court trial to hear
it, which the People are really just submitting a certified rap
sheet to prove up the aggravating factors.” Counsel for Banks
argued that he was entitled to a jury trial on those allegations.
The court agreed, stating: “If the defendant is not willing to
stipulate to the aggravating factors, we will have to set this for
jury trial.” Counsel for Banks stated that her client was unwilling
to stipulate and argued that “the People may be able to reach
their evidentiary burden to the aggravating factors with only a
certified rap sheet, but that’s ultimately to be determined by a
jury.” The court set the matter for sentencing and indicated that
it would revisit the issue at that time. Neither the court nor
counsel mentioned the alleged strike priors.
In his sentencing memorandum, Banks argued that he was
entitled to a trial on any allegation that could be used to increase
his sentence, citing Apprendi v. New Jersey (2000) 530 U.S. 466.
He argued that the trial should be a jury trial pursuant to
section 1025, subdivision (b). In its sentencing memorandum, the
prosecution argued that the high-term sentence of three years
should be imposed and doubled in light of Banks’s recent strike
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offenses. The prosecutor attached a certified section 969b packet,
which contained abstracts of judgment for Banks’s prior
convictions for possession of a firearm by a felon, carrying a
loaded, unregistered handgun, and first degree burglary.
At the sentencing hearing, the court first stated, “I
recognize that the defendant has a right to a trial of disputed
issues of fact, including his prior, if that was a disputed issue of
fact.” The court then said that it did not believe a jury trial on the
prior conviction allegations was required because “Evidence Code
[section] 453 makes compulsory judicial notice of any matter
specified in section 452, which includes a conviction, a certified
copy of a conviction.” The court stated that Evidence Code section
457 makes matters judicially noticed binding on a jury.
Counsel for Banks argued that he was entitled to a jury
trial on the strike priors and that the court could not apply those
strike priors in the absence of a jury finding. She further
contended that no certified section 969b packet was admitted
during the evidentiary portion of the trial; it was only attached to
the People’s sentencing memorandum. The prosecutor argued
that the court could consider the defendant’s prior convictions in
determining his sentence based on the certified record of
conviction without submitting those convictions to a jury under
section 1170, subdivision (b)(3),3 and the submission of the
certified section 969b packet outside the presence of the jury for
purposes of sentencing was therefore appropriate. The court
3 Section 1170, subdivision (b)(3), states that “the court may consider
the defendant’s prior convictions in determining sentencing based on a
certified record of conviction without submitting the prior convictions
to a jury.”
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sentenced Banks to the midterm of two years, and then doubled
that based on his prior strike conviction pursuant to section
1170.12. The court made no findings on the record that either of
the alleged strikes was true. Nor did the court strike either
strike, even though it appears to have applied only one of the two
strikes in calculating Banks’s sentence. Nor did the court address
any of the alleged circumstances in aggravation.
Banks timely appealed.
DISCUSSION
1. The court erred in denying Banks a jury trial on the
prior strike allegations.
The parties agree that the court violated Banks’s statutory
right to a jury trial on the prior strike allegations, as do we.
“The right, if any, to a jury trial of prior conviction
allegations derives from sections 1025 and 1158, not from the
state or federal Constitution.” (People v. Epps (2001) 25 Cal.4th
19, 23 (Epps).) Section 1025, subdivision (b), states that “the
question of whether or not the defendant has suffered the prior
conviction shall be tried by the jury that tries the issue upon the
plea of not guilty . . . .” However, section 1025, subdivision (c),
provides that “the question of whether the defendant is the
person who has suffered the prior conviction shall be tried by the
court without a jury.” Section 1158 provides: “Whenever the fact
of a previous conviction of another offense is charged in an
accusatory pleading, and the defendant is found guilty of the
offense with which he is charged, the jury, or the judge if a jury
trial is waived, must unless the answer of the defendant admits
such previous conviction, find whether or not he has suffered
such previous conviction.”
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Section 1164, subdivision (b), provides: “No jury shall be
discharged until the court has verified on the record that the jury
has either reached a verdict or has formally declared its inability
to reach a verdict on all issues before it, including, but not limited
to . . . the truth of any alleged prior conviction whether in the
same proceeding or in a bifurcated proceeding.” (Italics added.)
“Thus, the provision in section 1164, requiring that the jury be
discharged following receipt of the verdict, is expressly qualified
by the need to retain the jury to decide the truth of prior felony
allegations.” (People v. Valladoli (1996) 13 Cal.4th 590, 601.)
In Epps, the trial court dismissed the jury over the
defendant’s objection but held a bench trial on a prior serious
felony conviction that was alleged for purposes of both a five-year
enhancement under section 667, subdivision (a)(1), and the Three
Strikes law. (Epps, supra, 25 Cal.4th at p. 22.) It found the prior
conviction allegations true. (Ibid.) Following amendments to
section 1025 in 1997, which established that it was for the court
and not the jury to decide issues of identity (§ 1025, subd. (c)), the
California Supreme Court acknowledged that a jury’s role with
respect to prior conviction determinations is limited. (Epps, at
pp. 24–25.) However, it rejected the argument that the right to a
jury trial of prior conviction allegations had been eliminated.
“[I]n theory at least, there may be issues for jury determination
under sections 1025 (as amended) and 1158” (Id. at p. 25),
including, in an appropriate case, “the question of authenticity,
accuracy, or sufficiency of prior conviction records.” (Id. at p. 27.)
The court explained: “[O]fficial government records clearly
describing a prior conviction presumptively establish that the
conviction in fact occurred, assuming those records meet the
threshold requirements of admissibility. [Citation.] . . . Therefore,
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in most cases, there will be no contested factual question for the
jury to decide, and the jury need only render its verdict.” (Ibid.)
Although no contested factual issues were present in the case
before it, the Supreme Court concluded that the trial court’s
failure to submit the issue of the defendant’s prior conviction to
the jury was error. (Id. at p. 28.)
We likewise conclude that the court erred by failing to
submit the question of whether Banks suffered the prior strikes
to the jury.
2. Because Banks’s due process rights were violated,
remand for further proceedings is the appropriate
remedy.
Both parties agree that the proper remedy is remand for a
jury trial on the prior strike allegations. Banks and the Attorney
General further agree that state and federal double jeopardy
protections would not apply to a trial of the prior conviction
allegations. (People v. Monge (1997) 16 Cal.4th 826, 845.)
Although the Attorney General concedes that the matter
must be remanded, he also suggests the error is subject to
harmless error analysis under the test applicable to state law
errors under People v. Watson (1956) 46 Cal.2d 818 (Watson),
citing Epps. In Epps, the Supreme Court rejected the argument
that the failure to submit the defendants’ prior conviction
allegations to the jury was a structural defect requiring
automatic reversal “because the right to a jury trial of the prior
conviction allegations in this case is purely a creature of state
statutory law.” (Epps, supra, 25 Cal.4th at p. 29.) It concluded
that the Watson test for harmless error applied and that the error
was harmless considering that “the only factual question for the
jury was whether the prior convictions occurred, and defendant
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did not question this fact at his prior convictions trial” and “the
prior conviction records were official government documents
clearly describing the alleged convictions.” (Id. at pp. 29–30.)
However, as discussed above, the trial court in Epps had
conducted a bench trial and found the prior conviction allegations
true. (Id. at p. 22.)
Here, the court did not hold a bench trial, admit the
certified section 969b packet as evidence, or make a true finding
as to the prior strike allegations. Instead, it took judicial notice of
the prior convictions and sentenced Banks. Thus, the error was
fundamentally different from the error in Epps, as the Attorney
General appears to recognize by his concession.
Banks argues, and we agree, that the failure to hold any
trial on the prior conviction allegations was a violation of his due
process rights. In People v. Cross (2015) 61 Cal.4th 164, 172, our
high court explained that its opinion in People v. Vera (1997) 15
Cal.4th 269 “strongly implied that defendants have a due process
right to receive a fair trial on the truth of prior prison term
allegations.” It further observed that another prior decision, In re
Yurko (1974) 10 Cal.3d 857, “correctly concluded that ‘an accused
is entitled to a trial on the factual issues raised by a denial of the
allegation of prior convictions . . . .’ [Citation.]” (Cross, at p. 173.)
“Indeed, it is well established that, while there is no single
‘ “best” recidivist trial procedure,’ due process requires ‘adequate
notice’ and ‘an opportunity to challenge the accuracy and validity
of the alleged prior convictions.’ [Citations.]” (Ibid.)
Banks was denied a trial to which he was entitled, and the
trial court made no express finding as to the truth of the
allegations before sentencing Banks as though the allegations
had been proven true. We agree with the parties that the
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sentence must be vacated, along with any implicit “true” findings
the court may have made regarding the strike priors. (See People
v. Cross, supra, 61 Cal.4th at p. 180 [reversing true finding on the
prior conviction allegation and sentence where the trial court
failed to inform the defendant of his trial rights and to elicit his
waiver of those rights].) We remand for further proceedings
consistent with this opinion.4
4 As we noted, Banks’s counsel contended he was also entitled to a jury
trial on the circumstances in aggravation alleged in the information.
Here, however, the court imposed the middle term. It did not mention
the alleged circumstances in aggravation, or make any findings on
them. Accordingly, we express no opinion concerning this contention.
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DISPOSITION
The sentence and any implied findings on the prior strike
allegations are vacated. The matter is remanded for further
proceedings consistent with this opinion. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.
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