The opinion
Filed 1/21/22
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079770
Plaintiff and Respondent,
(Super. Ct. No. BF169096A)
v.
LAMONTE SHERMALE BANNER, OPINION
Defendant and Appellant.
F081144
In Re
(Super. Ct. No. BF169096A)
LAMONTE SHERMALE BANNER,
On Habeas Corpus.
APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa,
Judge.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of sections III, IV and V.
Martinez and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Lamonte Shermale Banner was convicted by jury of two attempted robberies for a
single act involving two restaurant employees. He raises four claims on appeal
challenging one conviction and the judgment.
One, did the court err in not considering mental health diversion? (See Pen.
Code, 1 § 1001.36.) Two, was Banner’s counsel ineffective in failing to request mental
health diversion? Three, is the second attempted robbery conviction sufficiently proven?
Four, did the court err in ordering certain fines and fees as part of the judgment? We find
no merit in these claims and will affirm.
In a separately filed habeas petition, 2 Banner adds to the ineffective counsel claim.
For reasons explained below, we will deny the petition.
BACKGROUND
Charges
The Kern County District Attorney charged Banner with 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).)
Trial Evidence
The facts are simple. Banner entered a restaurant and waited in line several
minutes behind multiple customers. 3 Two employees helped each customer. When
1 Statutory references are to the Penal Code unless otherwise stated.
2 We ordered the appeal and petition consolidated for decision.
3 These specific facts are based on a video surveillance exhibit.
2.
Banner reached the cash register at the front of the line, he produced a toy 4 firearm and
demanded money from the employee operating the register. That employee did not
believe the firearm was real and refused to comply.
A second employee, standing near the register and across from Banner, 5 ran away
in fear. Banner subsequently left emptyhanded and was arrested nearby a short time
later. He denied committing the crime.
Verdict and Sentence
Banner was convicted as charged. 6 He was sentenced to serve nine years in state
prison.
DISCUSSION
We first address Banner’s appellate claims and then turn to the habeas petition.
Finding no prejudicial error, we affirm the judgment and deny the petition.
I. No Sua Sponte Duty to Consider Mental Health Diversion
Banner argues “[t]he trial court erroneously violated its duty to consider [his]
eligibility for pretrial mental health diversion under section 1001.36.” He asserts “[t]he
trial court had a sua sponte duty to consider … eligibility for mental health diversion ….”
The People maintain “[s]ection 1001.36 contains no language mandating the court
to entertain diversion in any case.” They also claim Banner did not otherwise meet all
criteria for diversion.
We agree with the People. Section 1001.36 does not confer a sua sponte duty on
trial courts to consider mental health diversion. Nonetheless, the record reveals the trial
4
It is unclear whether the firearm was real because it was never recovered. The
district attorney did not charge a firearm enhancement and one victim did not believe it
was real. For simplicity, we will assume it was a toy.
5
The employee’s proximity to Banner and the cash register is based on video
evidence.
6 The court found the prior conviction allegations true in a bifurcated trial.
3.
court was mindful of section 1001.36 and did not believe Banner’s mental health played a
role in this crime.
A. Additional Background
At the sentencing hearing, the court announced it had reviewed “several hundred
pages” of “mental health records ….” It found Banner’s prior “participation in
[treatment] was inconsistent ….” The court noted Banner’s prior “support plan[s] …
failed,” “believe[d] [he did] have mental health issues,” and expressed appreciation for
the Legislature’s enactment of section 1001.36. Finally, the court concluded “the fact
[Banner] was able to conduct the crime in the way he did does not mean that he does not
suffer from a mental health issue. It may just mean that it was somewhat in abeyance at
the time ….”
B. Relevant Statutory Language
Section 1001.36 provides, in part, a “court may, after considering the positions of
the defense and prosecution, grant pretrial diversion to a defendant,” if, among other
factors, “[t]he court is satisfied that the defendant’s mental disorder was a significant
factor in the commission of the charged offense ….” Another factor involves the
“defendant[’s] consent[] to diversion and waive[r]” of his or her constitutional “right to a
speedy trial ….” (See § 1001.36, subd. (b)(1) [listing factors].)
C. Analysis
Based on section 1001.36, Banner presents three statutory-construction arguments
in concluding trial courts have a “sua sponte duty” to consider mental health diversion.
We consider each in turn.
First, Banner claims a defendant’s consent to diversion is irrelevant if the statute
requires a request for diversion. In other words, why would the statute require consent if
the defendant is required to invoke diversion? He bases his claim on the canon “a statute
should not be interpreted in a way that would render other provisions of the statute”
surplusage. (E.g., Ennabe v. Manosa (2014) 58 Cal.4th 697, 719 [“ ‘Courts should give
4.
meaning to every word of a statute if possible, and should avoid a construction making
any word surplusage.’ ”].) His interpretation, however, renders other parts of the statute
surplusage.
For example, section 1001.36, subdivision (b)(3), states:
“At any stage of the proceedings, the court may require the
defendant to make a prima facie showing that the defendant
will meet the minimum requirements of eligibility for
diversion and that the defendant and the offense are suitable
for diversion. The hearing on the prima facie showing shall
be informal and may proceed on offers of proof, reliable
hearsay, and argument of counsel. If a prima facie showing is
not made, the court may summarily deny the request for
diversion or grant any other relief as may be deemed
appropriate.” (Emphasis added.)
This section undoubtedly contemplates a “request for diversion” originating in the
defendant.
Banner’s interpretation would also call into question the Legislature’s mandate
that “[e]vidence of the defendant’s mental disorder shall be provided by the defense ….”
(§ 1001.36, subd. (b)(1)(A).) For this reason, “ ‘like all ... interpretive canons, the canon
against surplusage is a guide to statutory interpretation and is not invariably
controlling.’ ” (People v. Raybon (2021) 11 Cal.5th 1056, 1070, fn. 10.)
Next, Banner argues “[t]he only way to harmonize the phrases ‘the court may,
after considering the positions of the defense and prosecution’ [citation] and ‘[t]he
defendant consents to diversion’ [citation] is to interpret the statute as imposing a sua
sponte duty on the trial court to consider the defendant’s eligibility for pretrial
diversion.” 7 We discern no disharmony in these phrases. Indeed, Banner’s interpretation
injects disharmony into the statute by ignoring the paragraph describing a “request for
7 This point is based on the canon courts “ ‘ “must harmonize ‘the various parts of
a statutory enactment … by considering the particular clause or section in the context of
the statutory framework as a whole.’ ” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 961.)
5.
diversion” and requiring the defendant to prove eligibility for diversion. (See § 1001.36,
subd. (b)(3).) If the court is required to unilaterally consider diversion, then a “request
for diversion” is without substance.
Finally, Banner states, “[I]f the Legislature intended for the defendant to make a
request for pretrial diversion, the Legislature would have included such a requirement in
the statute.” 8 But the Legislature clearly did not mandate courts to sua sponte consider
mental health diversion in every case. It could have simply included such a requirement
in the statute if that was its intent; it did not.
In our view, the Legislature crafted a scheme wherein the diversionary interest
originates in the defendant or someone other than the defendant, e.g., counsel, 9 the
prosecutor, 10 or the judge. 11 In those situations, a defendant justifiably professing his or
her innocence might well decline diversion and choose instead to put the People to their
burden of proof. Nowhere, however, does the scheme mandate a sua sponte duty for trial
courts to consider mental health diversion. After all, a defendant (or his or her counsel) is
often best positioned to know whether mental health diversion is an appropriate outcome.
(See People v. Graham (2021) 64 Cal.App.5th 827, 835, review granted Sept. 1, 2021,
S269509 [“the onus is placed on the defendant to raise the issue of diversion”].)
8This argument is based on a commonsense maxim. (See, e.g., People v.
Hillhouse (2003) 109 Cal.App.4th 1612, 1619 [“ ‘Had the Legislature intended
otherwise, it plainly knew how to do so.’ ” ].)
9 In an ideal world, counsel and defendant’s views on diversion would perfectly
align. In reality, those views might differ even when counsel believes he or she is acting
in the client’s best interests.
10A prosecutor might, for example, believe diversion is a suitable resolution after
garnering further information not readily available when the charges were filed.
11 A scenario in which this could occur is where the defendant is mentally
incompetent to stand trial. Section 1001.36 addresses this possibility. (See § 1001.36,
subd. (b)(1)(D) [consent requirement dispensed with when defendant mentally
incompetent].)
6.
Even if we assume trial courts had a sua sponte duty to consider mental health
diversion, Banner would still not prevail. “The California Constitution prohibits a court
from setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’ ”
(In re Celine R. (2003) 31 Cal.4th 45, 59—60.) This means reversal is appropriate “only
if the reviewing court finds it reasonably probable the result would have been more
favorable to the appealing party but for the error.” (Ibid.) We do not.
We reach this conclusion because the trial court here did not believe Banner’s
mental health was a significant factor in this crime. Such belief is required to grant
diversion. (§ 1001.36, subd. (b)(1)(B).) The limited remedy described in People v.
Frahs (2020) 9 Cal.5th 618 (Frahs) is thus inapplicable.
In Frahs, the Supreme Court held a limited remand is appropriate “when, as here,
the record affirmatively discloses that the defendant appears to meet at least the first
threshold eligibility requirement for mental health diversion — the defendant suffers
from a qualifying mental disorder ….” (Frahs, supra, 9 Cal.5th at p. 640.) But Frahs
was written in context of its application to sentencing hearings occurring before
section 1001.36 was enacted. (Id. at p. 638 [“defendant was tried and convicted
before section 1001.36 became effective”].) Moreover, Frahs itself recognizes the
procedural limits of its holding. (Id. at p. 640 [not addressing questions not presented].)
To be clear, the record here contained significant evidence of Banner’s mental
illness, which was discussed at the sentencing hearing. 12 Based on the entire record,
however, the court could reasonably conclude Banner’s mental health was not a
significant factor underlying the crime. 13
12As discussed in detail below, Banner’s counsel advocated for a sentence
involving nonstatutory mental health programming in lieu of incarceration.
13To illustrate, Banner testified at the trial and claimed he was innocent. He again
professed innocence in his posttrial statutory probation interview (§ 1203). During
sentencing, he made no statement. His interview with a police officer at the crime scene
was coherent. No witness believed Banner was mentally ill during the incident. Put
7.
In sum, a trial court “may” grant mental health diversion after first broaching its
prospects with the parties, 14 but there is no sua sponte duty to do so in the absence of a
request by the defendant or any other person. 15 Nonetheless, we join our colleagues in
“emphasiz[ing] that our trial courts must give serious consideration to this critical
alternative, for the good not just of mentally ill offenders but, ultimately, society at
large.” (People v. Williams (2021) 63 Cal.App.5th 990, 1005; People v. O’Hearn (2020)
57 Cal.App.5th 280, 300—301.) In conclusion, the trial court here did not err in
pronouncing judgment without first explicitly contemplating diversion absent a request
from Banner. 16
II. Banner Cannot Prove Ineffective Assistance
This claim requires us to determine whether Banner received constitutionally
ineffective counsel. He complains he did “because any constitutionally effective defense
simply, nowhere in the record does evidence appear Banner’s mental illness played a
significant role in these crimes.
We point this out not to discredit or disparage Banner in any way, and certainly
not to place upon him or any defendant a burden to testify or make any statement
explaining why his or her mental illness culminated in a specific incident. We point it
out only to explain how the trial court reasonably could conclude Banner’s illness was in
“abeyance at the time ….” (People v. Oneal (2021) 64 Cal.App.5th 581, 589 [“trial
court’s factual findings [upheld] if supported by substantial evidence”].)
It is true Banner was found mentally incompetent prior to his trial. But the court
did not declare a doubt as to Banner’s competency until nearly seven full months after his
arrest. (See § 1368.)
14The court must still comply with all statutory requirements, particularly
“considering the positions of the defense and prosecution ….” (§ 1001.36, subd. (a).)
15Other statutes are similarly structured. (E.g., § 1385 [court may dismiss action
on its own or on application of prosecutor]; see People v. Lee (2008) 161 Cal.App.4th
124, 129 [“no sua sponte duty” arises under section 1385].)
16 Whether Banner’s request for diversion at sentencing would be timely is
currently under review by the Supreme Court in People v. Braden (2021)
63 Cal.App.5th 330, review granted July 14, 2021, S268925. Because that question is not
raised in this case, we neither address it nor express a view on its resolution.
8.
counsel … would have requested mental health diversion under section 1001.36.” The
People respond Banner “cannot establish … ineffective assistance of counsel” “[b]ecause
the record does not establish [he] was eligible for pretrial mental health diversion ….”
We agree with the People.
A. Additional Background
At a pretrial hearing approximately seven months after the crime occurred,
Banner’s counsel declared a doubt regarding Banner’s mental competency to stand trial.
(§ 1368.) Just before trial, counsel indicated the possibility of calling an expert witness
to describe Banner’s mental state during the incident. 17
During sentencing, counsel sought local mental health court as an alternative to
imprisonment. Counsel also argued Banner’s testimony, i.e., disclaiming responsibility,
was a “symptom of his mental illness.” As noted above, the court recognized Banner
suffered from “mental health issues” but believed it “was somewhat in abeyance at the
time of the situation for whatever purpose or whatever reason.”
B. Analysis
The Sixth Amendment guarantees the “ ‘right to the effective assistance of
counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685—686.) “ ‘[T]o establish
a claim of ineffective assistance of counsel, [Banner] bears the burden of demonstrating,
first, that counsel’s performance was deficient because it “fell below an objective
standard of reasonableness [¶] ... under prevailing professional norms.” [Citations.]
Unless [he] establishes the contrary, we shall presume that “counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record
“sheds no light on why counsel acted or failed to act in the manner challenged,” an
appellate claim of ineffective assistance of counsel must be rejected “unless counsel was
17 That witness ultimately did not testify.
9.
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.” [Citations.] If [he] meets the burden of establishing that
counsel’s performance was deficient, he … must show that counsel’s deficiencies
resulted in prejudice, that is, a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” ’ ”
(People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).)
“The object of an ineffectiveness claim is not to grade counsel’s performance. If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice … that course should be followed.” (In re Cox (2003) 30 Cal.4th 974, 1019—
1020 (Cox); People v. Carrasco (2014) 59 Cal.4th 924, 982.) We follow that course
here.
At first glance, the record is unfavorable to counsel. For example, requesting
informal mental health treatment but not statutory mental health diversion appears
inconsistent. It is possible, however, counsel believed Banner did not meet each criterion
for eligibility, specifically the fact mental illness must significantly underlay the crime. 18
More importantly, it does not appear Banner was prejudiced. Again, the trial court
did not believe Banner’s mental illness played a significant role in this crime. Without
believing mental illness was a “significant factor” in the crime, the court could not grant
diversion. (§ 1001.36, subd. (b)(1)(B).) We conclude Banner has failed to discharge his
burden to prove prejudice because he cannot prove the court would have found him
eligible for diversion.
III. Crimes Sufficiently Proven
Banner believes the evidence insufficiently proved attempted robbery against the
second employee. He argues the evidence “does not support the reasonable inference that
18This is true notwithstanding counsel’s sentencing argument Banner’s mental
illness was the reason he denied involvement in the crime.
10.
[he] specifically intended to commit a robbery” against the second employee because he
“never took any sort of action against her, such as demanding money …, pointing the
apparent gun …, or threatening to shoot her.”
The People state “it is reasonably inferable that [Banner] intended to rob anyone
and everyone who had access to and control over the money when he entered the store.”
They assert “ ‘multiple convictions of robbery are proper if force or fear is applied to
multiple victims in joint possession of the property taken.’ ” (People v. Scott (2009)
45 Cal.4th 743, 750 (Scott).) We agree.
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] … We presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008)
45 Cal.4th 1, 27.)
“ ‘To constitute robbery the property must be removed from the possession and
immediate presence of the victim against his will, and such removal must be by force or
fear.’ ” (People v. Nguyen (2000) 24 Cal.4th 756, 761.) “[N]either ownership nor
physical possession is required to establish the element of possession for the purposes of
the robbery statute.” (Scott, supra, 45 Cal.4th at p. 749.) “Two or more persons may be
in joint constructive possession of a single item of personal property, and multiple
convictions of robbery are proper if force or fear is applied to multiple victims in joint
possession of the property taken.” (Ibid.)
11.
“ ‘ “[A] store employee may be the victim of a robbery even though he is not its
owner and not at the moment in immediate control of the stolen property.” ’ ” (Scott,
supra, 45 Cal.4th at p. 751.) “[A]ll employees on duty have constructive possession of
their employer’s property and may be separate victims of a robbery.” 19 (People v.
Bradford (2010) 187 Cal.App.4th 1345, 1349.)
With these principles in mind, we conclude the evidence readily supports the
jury’s verdict. The evidence disclosed Banner entered the restaurant and stood in line for
several minutes while observing two employees assist multiple customers. When Banner
reached the front of the line, he produced a toy firearm and demanded money. At that
point, both employees were in close proximity to one another and the cash register.
“As a matter of common knowledge and experience, those who commit robberies
are likely to regard all employees as potential sources of resistance ….” (Scott,
supra, 45 Cal.4th at p. 755.) The jury could reasonably infer Banner was acutely aware
two employees were obstacles in his path. The jury could also reasonably conclude he
waited for the employees to converge before attempting the robbery in an effort to
maximize control and success. This is consistent with an intent to rob both employees.
Accordingly, the evidence sufficiently proved both attempted robberies.
19 Although not in issue here, we make clear a “long line of California cases …
have found evidence sufficient to establish that employees working at a business
premises were in constructive possession of the employer’s property during a robbery,
based upon their status as employees and without examining whether their particular
duties involved access to or control over the property stolen.” (Scott, supra, 45 Cal.4th at
p. 752, emphasis added.) This is so “because of their relationship to the property or its
owner, [employees] have the right to resist the taking ….” (Id. at p. 758.) That was
borne out in this case when the second employee resisted the taking by fleeing and
notifying law enforcement.
12.
IV. Fines and Fees Properly Imposed
As pertinent, the trial court imposed a $300 restitution fine, an $80 operations fee,
and a $60 conviction fee as part of the judgment. 20 Banner did not object to their
imposition.
“In general, a defendant who fails to object to the imposition of fines, fees, and
assessments at sentencing forfeits the right to challenge those fines, fees, and assessments
on appeal.” (People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 950.) “This is
particularly so in a case such as this one, where the sentencing occurred after the
Dueñas court declared a constitutional right to have a court determine the defendant’s
ability to pay before imposing statutorily mandated fines and assessments.” 21 (Lopez-
Vinick, supra, at p. 950.) Because Banner did not object, we conclude he forfeited this
claim.
Alternatively, Banner contends his counsel was ineffective for failing to object
post-Dueñas. He bears the burden to demonstrate “ ‘ “ ‘there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. … ” ’ ” … Reviewing courts defer to counsel’s reasonable tactical decisions
in examining a claim of ineffective assistance of counsel [citation], and there is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” [Citation.] Defendant’s burden is difficult to carry on direct appeal …: “
‘Reviewing courts will reverse … [on direct appeal] on the ground of inadequate counsel
only if the record on appeal affirmatively discloses that counsel had no rational tactical
20
These obligations were imposed pursuant to sections 1202.4, 1465.8, and
Government Code, section 70373, respectively.
21
The decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 is the basis for
Banner’s claim. It was published nearly seven full months prior to Banner’s sentencing
hearing.
13.
purpose for [his or her] act or omission.’ ” ’ ” (People v. Vines (2011) 51 Cal.4th 830,
876.)
Based on the record, counsel may well have believed an objection to these
financial obligations was futile. The only evidence relative to ability to pay disclosed
Banner’s assets and net monthly income exceeded the total obligation imposed by the
court. 22 For these reasons we cannot find counsel ineffective nor can we find the court
erred in its judgment. 23
V. Habeas Petition
In the habeas petition, Banner asserts his trial counsel was ineffective because she
did not request diversion due to inadequate funding “and the Public Defender’s Office
had been unsuccessful in requesting diversion in other cases.” 24 He argues “[i]t was
incumbent upon trial counsel to request diversion and have the trial court improperly
deny the request on the basis of inadequate funding.” He concludes, “there is a
reasonable chance that the trial court would have granted diversion if trial counsel had
made the request ….” We disagree.
As recited above, to prevail on an ineffective counsel claim, Banner must prove
prejudice. (Bell, supra, 7 Cal.5th at p. 720.) We need not determine if trial counsel was
deficient because Banner cannot prove prejudice. (See Cox, supra, 30 Cal.4th at
22
The income statistics are contained in Banner’s postconviction probation
interview. (§ 1203.) The fines and fees imposed reflect the statutory minimum.
23To the extent Banner claims the fines and fees were constitutionally excessive,
we disagree. Four hundred and forty dollars is not excessive for attempting to rob
multiple people with a toy firearm. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co.
(2005) 37 Cal.4th 707, 728 [proportionality is the touchstone of Eighth Amendment
analysis].)
24This assertion is based on an asserted conversation between Banner’s appellate
counsel and Banner’s trial counsel. Of course, we cannot pass upon the credibility of this
assertion. Ordinarily, an evidentiary hearing is necessary to resolve credibility. Here,
however, an evidentiary hearing is unnecessary because Banner is not entitled to relief
even if appellate counsel’s assertion is true and accurate.
14.
pp. 1019—1020.) Were we to assume trial counsel’s rationale was deficient, it does not
change the fact the trial court did not believe Banner’s mental illness was a significant
factor in these attempted robberies. (See ante, Discussion, II. B., § 1001.36,
subd. (b)(1)(B).) For that reason, there is not a reasonable probability the trial court
would have granted diversion and the petition lacks merit.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus consolidated
with this appeal (previously numbered F081144) is denied.
SNAUFFER, J.
WE CONCUR:
DETJEN, ACTING P. J.
DE SANTOS, J.
15.