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C.A. Resolves Ambiguity in Statute on Striking Dated Priors
Opinion Says 2022 Legislation Disfavoring Enhancements Based on Crimes Committed More Than Five Years in Past Measures Period Time From Time of Previous Conviction to Commission of Current Violation
By a MetNews Staff Writer
A statute that discourages the use of a prior for enhancement purposes when the former conviction occurred more than five years earlier is ambiguous but should be interpreted to refer to a period that ends upon commission of the current offense and not when the conviction or sentencing takes place, Div. Three of this district’s Court of Appeal has held.
Appealing his conviction was Russell O’Bannon, who was found guilty of assault with a deadly weapon and mayhem stemming from an attack on a fellow resident at a Salvation Army home on Jan. 30, 2019, in which the defendant slashed the victim’s face with a razor.
At the December 2020 sentencing hearing, the prosecutor asked Los Angeles Superior Court Judge Roger Ito to dismiss two charged enhancements based on a Dec. 7 directive by District Attorney George Gascón on the day he took office.
Ito denied the motion, saying he had no authority to dismiss the enhancements after the verdict had been rendered. O’Bannon was sentenced to 21 years on the mayhem charge, calculated as the upper term of eight years, doubled to 16 years in light of the prior conviction, plus a five-year enhancement based on a criminal threats conviction.
In May 2022, the Court of Appeal for this district reversed and remanded for resentencing, finding that Ito misunderstood his authority to dismiss enhancements after trial.
Resentencing Hearing
At the Dec. 2, 2022 resentencing hearing, Ito cited O’Bannon’s “various and sundry criminal violations, which include[]…[those] against the victim in this case who will have a lifelong lasting scar….from his ear down to his mouth,” and declined to exercise discretion to dismiss any enhancements. The judge reimposed the 21-year prison sentence.
During the hearing, O’Bannon’s defense counsel did not reference Senate Bill 81, enacted as of January that year, which amended Penal Code §1385 to add subdivision (c), providing:
“(1)Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so….
“(2) 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…are present….”
One enumerated mitigating factor is “[t]he enhancement is based on a prior conviction that is over five years old.”
O’Bannon contends that his counsel rendered ineffective assistance by failing to raise §1385(c) because his Nov. 23, 2015 conviction occurred more than five years before he was resentenced in December 2022.
Presiding Justice Lee Edmon authored the opinion, filed Tuesday, affirming the judgment, saying that “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.” Justice Anne H. Egerton and Los Angeles Superior Court Judge Nicole C. Bershon, sitting by assignment, joined in the opinion.
Face of Statute
Edmon acknowledged that the plain language of §1385 does not explain how to measure the applicable time frame, saying:
“[H]ow 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.”
She noted that O’Bannon “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.’ ”
Unpersuaded, the presiding justice wrote:
“[W]hile the Legislature’s choice of verb tense can be significant in construing statutes…, 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.”
Legislative History
The justice said that “Senate Bill No. 81’s legislative history is also silent on the issue” but that “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….”
She continued:
“Although the Report did not expressly state how to calculate a prior conviction’s age, it….noted that many states restrict using enhancements based on prior convictions by imposing ‘cut-off dates….’….The Report referenced 20 states…, including ones that base washout periods on the date the defendant commits the…current offense.”
Edmon added:
“Indeed, California has a washout provision that…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.”
Turning to the legislative purpose behind the bill, she reasoned:
“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….’….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.”
Hypothetical Illustration
Edmon opined that “[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,” writing:
“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)….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)…therefore remains inapplicable to Defendant One.”
She continued:
“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)…, therefore applies to Defendant Two…. 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.”
She declared that “[o]ur 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.”
In an unpublished portion of the opinion, the court declined to find that an alternative mitigating circumstance was present in O’Bannon’s case—that he was sentenced on multiple enhancements based on the strike.
Edmon said “an alternative penalty scheme such as the Three Strikes law is not an enhancement within the meaning of section 1385” and “O’Bannon’s trial counsel therefore did not provide ineffective assistance by failing to argue that O’Bannon had multiple enhancements….”
The case is People v. O’Bannon, 2024 S.O.S. 3534.
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