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Name: People v. Banks
Case #: G036873
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 04/13/2007
Subsequent History: 6/27/07 Cunningham rev. gr/hold: S152849
Summary

Sentence imposing the upper term was reversed where the court cited appellant’s leadership role in the crime, sophistication, planning, and cruelty as well as his prior convictions as factors. Appellant was convicted of robbery, commercial burglary, and false imprisonment, and sentenced to six years in prison, consisting of the five year upper term for the first robbery, and a consecutive one-year term on the second. Sentencing was stayed pursuant to section 654 on the burglary, and a concurrent term was imposed on the false imprisonment counts. In choosing the upper term, the court cited appellant’s “leadership role” in the acts which showed sophistication and planning, had a high degree of cruelty, and were committed with the use of a replica of a gun. The court also cited appellant’s prior convictions and failures on probation or parole. On appeal, appellant argued that the upper term violated his constitutional rights because it relied on aggravating factors not proven to a jury. The appellate court agreed that some of the sentencing factors cited could not be used without a jury finding (citing Apprendi and Blakely), but remanded to allow the trial court to decide whether appellant’s prior criminal record alone supported imposition of the upper term.