Filed 8/26/26 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B343896
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA115860
v.
ROBERT LEE BANKS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Charlaine F. Olmedo, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General for Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Robert Lee Banks appeals his resentencing
pursuant to Penal Code section 1172.75.1 He argues that the
superior court improperly denied his request to dismiss the prior
serious felony conviction enhancement by finding that dismissal
would endanger public safety. He also argues that the court
improperly reimposed the upper term on the principal count
without complying with the heightened factfinding requirement
of section 1170, subdivision (b). We reject both arguments and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts2
On May 30, 1995, at about 1:00 p.m., Banks entered a
Payless Shoe Source at Vermont Avenue and Manchester
Boulevard in Los Angeles, California. He selected a pair of shoes
and took them to the cashier. He pointed a handgun at three
employees. Banks took money from the store’s cash register and
safe, and from one of the employees.
II. Trial court proceedings
On December 8, 1995, a jury found Banks guilty of three
counts of second degree robbery (§ 211; counts 1–3) and found a
firearm enhancement (§ 12022.5, subd. (a)) true as to each.
Banks admitted the truth of the allegations that he served a prior
prison term (§ 667.5, subd. (b)) for possession of a firearm by a
1 All further unspecified statutory references are to the
Penal Code.
2 We refer to the factual background from the opinion in
People v. Banks (Jan. 8, 1997, B099650) (nonpub. opn.).
2
felon on October 12, 1993 in case BA083166. He also admitted
that he sustained prior serious felony convictions (§ 667, subd.
(a)(1)) and prior felony convictions under the Three Strikes law
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) for kidnapping and
robbery on December 15, 1989 in case No. A927627 and robbery
on June 30, 1982 in case No. A199976.
On count 1, the trial court imposed 10 years, calculated as
the upper term of five years, doubled under the Three Strikes
law. The court imposed an additional 10 years for the firearm
enhancement as to count 1. For counts 2 and 3, the court
imposed a consecutive term of two years each, calculated as one-
third the midterm of three years, doubled under the Three
Strikes law. As to counts 2 and 3, the court imposed an
additional one year and four months for each firearm
enhancement. The court imposed an additional five years for one
prior serious felony conviction enhancement under section 667,
subdivision (a)(1) and an additional year for the prior prison term
enhancement under section 667.5, subdivision (b). The aggregate
sentence was 32 years and eight months in state prison.
On January 8, 1997, the Court of Appeal affirmed the
judgment.3
III. Resentencing under section 1172.75
On July 8, 2024, counsel for Banks filed a petition for
resentencing pursuant to Senate Bill No. 483 and section
1172.75.
On January 27, 2025, the superior court conducted a
resentencing hearing. The court found that striking the prior
3 People v. Banks, supra, B099650.
3
serious felony conviction enhancement would endanger public
safety and denied Banks’s request to strike that enhancement.
The court recalled the sentence and struck the invalid prior
prison term enhancement.
The court resentenced Banks to 31 years and eight months
in state prison, reimposing the same terms as imposed in the
original sentence. Specifically, the court reimposed 20 years for
the principal term on count 1, calculated as the upper term of five
years, doubled pursuant to the Three Strikes law, plus 10 years
for the firearm enhancement. On counts 2 and 3, the court again
imposed consecutive terms of three years and four months each.
It reimposed five additional years for the prior serious felony
conviction enhancement.
DISCUSSION
I. Denial of request to strike prior serious felony
conviction enhancement
A court has discretion to strike a prior serious felony
conviction enhancement under section 667, subdivision (a)(1)
when it is in the furtherance of justice. (People v. Shaw (2020) 56
Cal.App.5th 582, 586.) The full resentencing pursuant to section
1172.75 rendered Banks eligible for this relief. (People v. Monroe
(2022) 85 Cal.App.5th 393, 395, 402.)
Effective January 1, 2022, Senate Bill No. 81 amended
section 1385 to add subdivision (c). (Stats. 2021, ch. 721, § 1.)
Section 1385, subdivision (c)(1) provides, “Notwithstanding any
other law, the court shall dismiss an enhancement if it is in the
furtherance of justice to do so . . . .” Section 1385, subdivision
(c)(2) requires that a sentencing court give “great weight to
evidence offered by the defendant to prove that any of the
4
mitigating circumstances in subparagraphs (A) to (I) are
present.” One or more mitigating circumstances “weighs greatly
in favor of dismissing the enhancement.” (Ibid.)
The statute provides an exception to the section 1385,
subdivision (c)(2) requirement when “the court finds that
dismissal of the enhancement would endanger public safety.”
Section 1385, subdivision (c)(2) further states that “ ‘endanger
public safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious
danger to others.” Even if the court does not find that dismissal
would endanger public safety, it “retains the discretion to impose
or dismiss enhancements provided that it assigns significant
value to the enumerated mitigating circumstances when they are
present.” (People v. Walker (2024) 16 Cal.5th 1024, 1029
(Walker).) “Stated simply, if the court does not conclude that
dismissal would endanger public safety, then mitigating
circumstances strongly favor dismissing the enhancement. But
ultimately, the court must determine whether dismissal is in the
furtherance of justice.” (Id. at p. 1036.)
We review a trial court’s decision not to strike sentencing
enhancements under section 1385 for abuse of discretion. (People
v. Mendoza (2023) 88 Cal.App.5th 287, 298.) We must not
disturb an exercise of discretion on appeal “ ‘ “ ‘except on a
showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest
miscarriage of justice.’ ” ’ ” (Ibid.) A court abuses its discretion if
it bases “ ‘its decision on impermissible factors . . . or on an
incorrect legal standard.’ ” (People v. Gonzalez (2024) 103
Cal.App.5th 215, 225.) We assess whether the superior court’s
5
findings of fact are supported by substantial evidence. (People v.
Garcia (2024) 101 Cal.App.5th 848, 857.)
a. Finding that dismissal would endanger public
safety
At the resentencing hearing, Banks requested that the
superior court dismiss the prior serious felony conviction
enhancement. The court found that dismissal of the
enhancement would endanger public safety under section 1385,
subdivision (c)(2). It specifically found that there was “a
likelihood that the dismissal . . . would result in physical injury
or serious danger to others.”4
Banks argues that there was insufficient evidence to
support the court’s determination that dismissal of the
enhancement would endanger public safety. Banks first
complains that the superior court “relied solely on his past
offenses, his disciplinary actions while in custody, and his
performance on parole,” and failed to consider his
accomplishments in state prison, his age, and the time he served
in prison.
4 The court also found by clear and convincing evidence that
imposing a lesser sentence would endanger public safety under
section 1172.75, subdivision (d)(1). This finding was unnecessary
because the court reduced Banks’s sentence by one year when it
struck the prior prison term enhancement. This reduction
resulted “in a lesser sentence than the one originally imposed,” as
required by section 1172.75, subdivision (d)(1). (People v. Bravo
(2025) 107 Cal.App.5th 1144, 1156.)
6
On the contrary, the court was aware of and considered
Banks’s accomplishments, age, and time in prison. As to Banks’s
accomplishments in prison,5 the court stated:
“[Y]our attorney did a very thorough job in
presenting to the court all that you’ve done to
improve yourself in the last few years while
you’ve had . . . this change of heart and this new
outlook. And those things are super important for
a variety of reasons . . . . [¶] But I do want to
commend you for, you know, how much you’ve
done in the last nine years or whatnot,
to . . . finish getting your GED . . . and doing
things to improve the way you interact with
people. And obviously getting a strong support
system in the community too. . . . Don’t think
that I didn’t hear them or I didn’t recognize them
because I do know that you’ve done that hard
work too, and I want to make sure that–your
attorney has already done to make sure that’s on
the record that you understand that I recognize
that too”.
5 Banks’s counsel highlighted his completion of a program
called Pathways to Freedom, a victim awareness course, an anger
management course, twelve-step programs, a creative writing
course, and a vocational training course. He also participated in
fundraising for a cancer walk. Banks held jobs in the dining
room, clothing distribution, the canteen, the laundry, and
printing. He also worked as a porter, a barber, and a recreational
aid. Banks’s counsel summarized letters from supervisors and
others who would assist his transition into the community.
7
The court also observed that Banks was 60 years old. It
determined that he would soon be eligible for release after having
served 29 years of the 32 year and eight-month sentence for the
three underlying convictions for robbery with a firearm.6 The
court highlighted that Banks was 31 years old at the time of the
underlying offenses.7 Based on this age, the court concluded that
youthful immaturity and impulsivity were not the cause in
Banks’s commission of those offenses.
Banks attempts to minimize his prison rule violations,
asserting that they would not make him a danger to the public if
the enhancement was dismissed. We reject Banks’s argument.
We recognize, as the superior court did, that Banks had
been free from rule violations since 2016.8 But Banks asks us to
6 The court determined Banks was eligible for release in
2027.
7 The court stated that the Probation Department’s report for
the underlying case indicated that Banks’s birthdate was July 11,
1964.
8 Misconduct is reported on a Rules Violation Report or an
RVR as it is commonly referred to, when it “is believed to be a
violation of law or is not minor in nature.” (Cal. Code Regs., tit.
15, § 3312, subd. (a)(3).)
From 2011 to 2016, Banks sustained seven RVRs, including
possession of dangerous contraband, assault on a non-peace
officer, participation in a riot, possession of an inmate-
manufactured weapon, possession of contraband, and two
incidents of use of marijuana based on a positive test.
From 1996 to 1999, Banks sustained an additional 12
RVRS, including threatening staff, possession of inmate-
manufactured alcohol, possession of inmate-manufactured
weapon, disrespect of staff, refusing an order, possession of
8
improperly reweigh the significance of the nature of each rule
violation. That we cannot do, given the applicable standard of
review. The court considered the significance of the rule
violations in the context of Banks’s entire lengthy criminal
career. The court expressed, “What causes the court concern here
is obviously your criminal history and that has not stopped since
you have been incarcerated, having picked up a number of
disciplinary actions and actually an additional crime of
conviction, not just disciplinary actions.” To the court, the
twenty-three rule violations simply demonstrated Banks’s
inability to conform to the law even under structured conditions.
One of them resulted in a felony conviction.9 The court also
expressed its concern about Banks’s “complete inability” to “abide
by the terms of supervision” as demonstrated by his rule
violations and his repeated violations of parole and probation,
including when he committed the underlying offenses. The court
highlighted that Banks never successfully completed a term of
alcohol, disobeying a direct order, refusal to go to a job
assignment, mutual combat, disrespect, and refusal to submit to
a drug test. He sustained four more RVRs from 2001 to 2004
including two incidents of possession of alcohol and two incidents
of participation in a riot.
9 In 2006, Banks was convicted for assault on a non-inmate
which involved licking the arm of a woman employed by the
Department of Corrections and Rehabilitation. The prosecutor
informed the court that Banks also wrote a poem indicating his
intentions to assault the victim in the case. Banks received a
four-year prison sentence to be served consecutively to the
sentence for the three underlying convictions of robbery with a
firearm.
9
court-ordered or prison-imposed supervision. Both considerations
of the rule violations influenced the court’s assessment of Banks’s
dangerousness when released.
We reject Banks’s argument that his past dangerousness
“did not establish that he was currently dangerous or would be in
the future.” Because Banks had already served 29 years of his
sentence of 32 years and eight months, the significance of his
current dangerousness and future dangerousness are practically
indistinguishable. The current dangerousness of the defendant
matters when reduction of the sentence would result in release
“within a short timeframe.” (People v. Gonzalez, supra, 103
Cal.App.5th at p. 228.) The court assessed the impact of Banks’s
rule violations, including one that resulted in a felony conviction,
as they specifically related to his posing “future danger to public
and the danger to public safety generally speaking.”
Notably, on appeal, Banks fails to adequately address the
superior court’s consideration of his criminal history in making
its dangerousness finding. The court stated, “I am going to go
through your prior record, Mr. Banks, as I said earlier, it’s a
pretty awful prior record, and I think you know that.” The court
highlighted Banks’s five convictions which resulted from eight
arrests. Four of the five involved Banks personally having a
firearm.10
10 The court noted that a juvenile petition was sustained
against Banks on November 10, 1981 for robbery with the
personal use of a firearm. After release, Banks violated parole
supervised by the former California Youth Authority (CYA).
The court also observed that Banks was arrested on
February 21, 1985 for assault with a deadly weapon which
resulted in a conviction for carrying a concealed firearm as a
misdemeanor. This conviction resulted in a violation of Banks’s
10
We conclude that Banks’s multiple convictions related to
firearm activity and failure to conform to rules of supervision
when in prison and when released from prison constitute
substantial evidence to support the superior court’s
determination that there would be a high likelihood that
dismissal of the enhancement would endanger public safety.11
CYA parole. In 1987, he was arrested for attempting to escape a
halfway house while on CYA parole. This charge was later
dismissed.
On December 17, 1987, Banks was arrested for robbery.
The disposition was unknown.
On February 21, 1989, Banks was convicted of robbery,
grand theft of an automobile, kidnapping, and taking a vehicle
without consent for threatening to kill a man, pulling a gun on
him, and taking his car, followed by evading the police in a car
chase. Banks was sentenced to four years in state prison. After
release, Banks violated parole and was returned to prison.
On July 4, 1992, Banks was convicted of misdemeanor
battery for punching a woman in the face. This conviction also
resulted in a parole violation.
On September 13, 1993, while still on parole, Banks was
convicted of possession of a firearm by felon. He was sentenced to
16 months in prison.
On May 30, 1995, Banks committed the robberies with a
firearm underlying this case. Again, Banks was on parole at the
time of the robberies and he was performing unsatisfactorily by
failing to report.
11 Because we conclude that substantial evidence supported
the superior court’s determination, we need not address Banks’s
argument that the court abused its discretion by failing to
properly consider the factors in section 1385, subdivision
(c)(2)(C).
11
b. Refusal to strike the prior serious felony
conviction enhancement
To the extent the superior court refused to dismiss the prior
serious felony conviction enhancement, it did not abuse its
discretion.12 The superior court’s conclusion was consistent with
the Supreme Court’s assessment that “in most cases, ‘if the trial
court finds that dismissal of an enhancement would endanger
public safety, then it is hard to see how dismissal would further
the interests of justice,’ notwithstanding the applicability of any
mitigating factor identified in subdivision (c)(2). [Citation.]”
(Walker, supra, 16 Cal.5th at p. 1033.)
II. Imposition of upper term on principal count
Banks contends that the superior court erred by reimposing
the upper term for the principal count when resentencing him.
He asserts that this violated section 1170, subdivision (b) because
the aggravating circumstances on which the court relied were not
admitted by him, stipulated by the parties, or found true beyond
a reasonable doubt by a jury. We reject Banks’s contention.
Effective January 1, 2022, Senate Bill No. 567 amended
section 1170, subdivision (b) to prohibit imposition of a sentence
exceeding the middle term when a statute specifies three possible
terms. (Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision
(b)(2) permits imposing the upper term “only when there are
circumstances in aggravation of the crime that justify the
imposition of a term . . . exceeding the middle term and the facts
underlying those circumstances have been stipulated to by the
12 The court stated, “For the reasons I’ve stated, I can’t make
a finding why I should be striking any of the enhancements.”
12
defendant or have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial.”
Section 1172.75, subdivision (d)(2) requires the court when
resentencing to “apply any other changes in the law that reduce
sentences or provide for judicial discretion so as to eliminate
disparity of sentences and to promote uniformity of sentencing.”
This requirement includes applying the limitation on imposing
the upper term under section 1170, subdivision (b)(2). But
section 1172.75, subdivision (d)(4) states:
“Unless the court originally imposed the
upper term, the court may not impose a sentence
exceeding the middle term unless there are
circumstances in aggravation that justify the
imposition of a term of imprisonment exceeding
the middle term, and those facts have been
stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by
the jury or by the judge in a court trial.”
The first clause—“Unless the court originally imposed the upper
term”— provides an exception for defendants who were originally
sentenced to the upper term from the second clause’s factfinding
requirement.
According to the court in People v. Brannon-Thompson, the
plain language of section 1172.75, subdivision (d)(4) indicates
that the factfinding requirement under section 1170, subdivision
(b)(2) applies only if the court is imposing the upper term for the
first time. (People v. Brannon-Thompson (2024) 104 Cal.App.5th
455, 466–467.) Brannon-Thompson concluded that section
1172.75, subdivision (d)(4) permits the court to reimpose an
upper term sentence even if a factfinder never found an
13
aggravating factor beyond a reasonable doubt. (Brannon-
Thompson, at p. 458.)
We agree with this interpretation of section 1172.75,
subdivision (d)(4), and see no ambiguity in it. (People v. Cornett
(2012) 53 Cal.4th 1261, 1265 [when interpreting a statute, “[t]he
plain meaning controls if there is no ambiguity in the statutory
language”].)
The court in People v. Gonzalez (2024) 107 Cal.App.5th 312,
328–329 (Gonzalez), acknowledged that the plain language of
section 1172.75, subdivision (d)(4) could be interpreted as it was
in Brannon-Thompson. But Gonzalez interpreted section
1172.75, subdivision (d)(4) as only restricting eligibility to receive
the upper term at resentencing to those who previously received
the upper term. According to Gonzalez, section 1172.75,
subdivision (d)(4) does not permit a court to entirely circumvent
the factfinding requirement.
The Supreme Court granted review in a nonpublished case
to decide the split of authority by Brannon-Thompson and
Gonzalez and will have the final say over whether section
1172.75, subdivision (d)(4) permits a court to reimpose an upper
term sentence without satisfying the factfinding requirement of
section 1170, subdivision (b). (People v. Mathis (2025) 111
Cal.App.5th 359, 372–373, fn. 6, review granted Aug. 13, 2025,
S291628 (Mathis) [referring to People v. Eaton (Mar. 14, 2025,
C096853) [nonpub. opn.], review granted May 14, 2025,
S289903].) Until then, like the superior court here, we agree
with Brannon-Thompson and decline to follow Gonzalez.13 (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.)
13 Banks does not raise any Sixth Amendment challenge to
the reimposition of the upper term under section 1172.75,
14
Here, the superior court reimposed the upper term for
count 1 without a jury finding of any aggravating circumstance.
Section 1172.75, subdivision (d)(4) permitted the superior court to
reimpose the upper term without violating section 1170,
subdivision (b) because the original sentencing court imposed the
upper term for the principal count.14
subdivision (d)(4). Accordingly, we do not address any such
challenge as discussed in Gonzalez, supra, 107 Cal.App.5th at
pages 329–330, Mathis, supra, 111 Cal.App.5th at pages 372–373,
review granted, and People v. Dozier (2025) 116 Cal.App.5th 700,
706, 714, 716, review granted February 11, 2026, S294597.
14 Banks also argues that in imposing the upper term for
count 1, the superior court improperly relied on aggravating
factors for having prior convictions increasing in frequency and
seriousness, failure to successfully complete court-ordered or
prison-imposed supervision, and multiple victims in the
underlying case because they were not stipulated by him, nor
proven to a jury, in violation of People v. Wiley (2025) 17 Cal.5th
1069, 1078 and section 1170, subdivision (b)(2). Because we
conclude that section 1172.75, subdivision (d)(4) permitted
reimposition of the upper term for count 1, we need not address
this other argument that the jury was required to find beyond a
reasonable doubt any aggravating circumstances additionally
referenced by the superior court.
15
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HANASONO, J.
We concur:
ADAMS, P. J.
ASHWORTH, J.*
* Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
16