People v. Lankford CA4/2 ( 2024 )

Filed 5/21/24 P. v. Lankford CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081026
v. (Super.Ct.Nos. RIF1803987,
RIF1804692)
DANTE MAURICE LANKFORD,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Donald
W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Dante Maurice Lankford was convicted by a jury of 22
criminal offenses as a result of multiple incidents involving his wife. He now appeals
from his second sentencing, which reduced his original term of 45 years in state prison to
37 years in prison. He contends the trial court erred by refusing to dismiss various
sentencing enhancements in accordance with Penal Code1 section 1385, since it failed to
find that dismissal of the enhancements would endanger public safety. We find no error
and affirm.
PROCEDURAL BACKGROUND
A jury convicted defendant of 22 offenses, including, among others, making
criminal threats (§ 422), assault with a firearm (§ 245, subd. (a)(2)), being a felon in
possession of a firearm (§ 29800, subd. (a)(1)), stalking (§ 646.9, subd. (b)), inflicting
corporal injury on a spouse (§ 273.5, subd. (f)(2)), dissuading a witness by use of force
(§ 136.1, subd. (c)(1)), violating a protective order (§ 166, subd. (c)(1)), and robbery
(§ 211). The jury also found true that defendant personally inflicted great bodily injury
(GBI) on the victim (§ 12022.7, subd. (e)) during the commission of inflicting corporal
injury (count 1), and he personally used a firearm (§ 12022.5, subd. (a)), in the
commission of making criminal threats (count 2). (People v. Lankford (Feb. 7, 2022,
E072649) [nonpub. opn.] (Lankford).) Defendant admitted he had a prior serious felony
conviction (§ 667, subd. (a)), a prior strike conviction (§§ 667, subds. (c) and (e)(1),
1 All further statutory references will be to the Penal Code, unless otherwise
indicated.
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1170.12, subd. (c)(1)), and a prison prior (§ 667.5, subd. (b)). (Lankford, at p. 12.) The
trial court sentenced him to a total term of 45 years in state prison.
Defendant appealed, raising numerous claims. Subsequently, on February 7,
2022, this court ordered the prison prior and the incarceration costs stricken, and we
remanded the matter for resentencing in accordance with recently enacted amendments to
the sentencing statutes. In all other respects, we affirmed the judgment. (Lankford,
supra, E072649, at pp. 44-45.)
The People filed a sentencing brief stating that defendant should be resentenced to
the middle term on count 2 and the attached enhancement and that the court should strike
the section 667.5, subdivision (b), prison prior, pursuant to a recent amendment to the
statute, and also strike the incarceration costs. Defendant submitted a sentencing brief
and asked the court to strike his prior strike conviction, as well as all of the
enhancements, and order the sentences to run concurrent, which would result in a total
term of seven years.
On March 9, 2023, the trial court held a sentencing hearing. The prosecutor
argued for the maximum sentence, asserting that defendant had been committing acts of
domestic violence for years upon his former girlfriend and then his wife. The prosecutor
described his cruel acts and argued, “That is the man before the Court. That is the abuser
who has gone out into society and abused his partners time and time again.” She further
argued that he was “rightfully deserving for his conduct for the 22 counts that he has been
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convicted of[,] of the maximum sentence that the law provides to make sure that the
public remains safe.”
The court first denied defendant’s request to strike the prior strike conviction,
noting that, in the instant case, there were “just too many offenses” and “[t]oo many of
them [were] violent in nature.” The court then cited defendant’s extensive criminal
history, which spanned from 2003 to 2017, and described it as “a series of crimes, many
of them violent in nature, of increasing severity.”2 The court stated that it completely
agreed with the prosecutor’s comments during her argument for the maximum sentence.
The court likewise denied defendant’s request to dismiss the enhancements. With regard
to the section 12022.5, subdivision (a), enhancement, it specifically stated, “[T]he Court
is mindful of all of its discretion.” However, the court concluded, “I’m declining to
exercise it given the nature of the circumstances that surround this case.” With regard to
the section 667, subdivision (a), enhancement, it stated, “[T]he Court is mindful that now
under 1385, the Court does have discretion to strike that. For the reasons that I
articulated during the Romero3 analysis, I am declining that invitation. The defendant, as
I said, when you look at everything, appears to be a poster child for recidivist statute.”
Addressing defendant directly, the court added, “I’m not trying to be disrespectful to you,
2 Defendant’s prior crimes included convictions for carrying a concealed firearm
(former § 12025, subd. (a)), battery on a spouse (§ 243, subd. (e)(1)), possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)), and multiple convictions
of inflicting corporal injury on a spouse (§ 273.5, subd. (a)).
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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sir, but it is rare that you see somebody with this many crimes committed in a single
charging document.”
The court struck the incarceration fees and the prison prior, and it reduced the
upper-term sentences to middle-term sentences, which resulted in a reduced aggregate
term of 37 years in state prison. After the court pronounced judgment, defense counsel
argued that, since the court did not grant the request to strike the prior strike, it would be
in the interests of justice for the court to strike the section 667 “nickel prior.” The court
responded: “The law now stands for the proposition that I’m supposed to consider the
aggravation of multiple enhancements and I should err on the side of only one and if the
use of enhancements would cause a sentence greater than 20 years, I’m supposed to
consider not imposing the enhancement.” The court then stated, “But in this particular
case, given the defendant’s criminal history, given his strike prior, given the multiplicity
of events here that happened over months, the Court does find that he is a danger to
society; and exercising that discretion, does represent a danger to society. And for that
reason, the Court is not limiting the application of . . . the enhancements.”
DISCUSSION
The Court Properly Exercised its Discretion When it Declined to Dismiss Defendant’s
Sentencing Enhancements
Defendant states that his sentence included a firearm enhancement, a GBI
enhancement, and a prior serious felony enhancement, and he argues that the trial court
erred in failing to dismiss two of the three enhancements, pursuant to a recent amendment
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to section 1385. He claims that it is not clear whether the court was aware of the recent
amendment or that it understood its discretion to dismiss the enhancements under the
amendment. He then specifically contends the court erred by not dismissing two of the
three enhancements, as it was required to do so under section 1385, subdivision (c), since
it failed to find that dismissing them would endanger public safety.
Thus, defendant claims his sentence should be vacated and the matter remanded
with directions for the trial court to either dismiss two of the enhancements or, in the
alternative, determine whether dismissal would endanger public safety. The People argue
the court did determine that defendant posed a danger to society, and therefore it properly
denied his request to strike the enhancements. We agree with the People.
A. Relevant Law
“Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) amended
section 1385 to include subdivision (c). [Citation.] Section 1385(c)(1) provides that
‘[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the
furtherance of justice to do so, except if dismissal of that enhancement is prohibited by
any initiative statute.’” (People v. Mendoza (2023) 88 Cal.App.5th 287, 295 (Mendoza);
§ 1385(c)(1).) Section 1385, subdivision (c)(2), provides: “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
in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the enhancement, unless the court
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finds that dismissal of the enhancement would endanger public safety.” One of the
mitigating circumstances is that “[m]ultiple enhancements are alleged in a single case.”
(§ 1385, subd. (c)(2)(B).) Another one is that “[t]he application of an enhancement could
result in a sentence of over 20 years.” (§ 1385, subd. (c)(2)(C).) Both of these
circumstances are applicable in this case.
“In general, we review for abuse of discretion the trial court’s decision not to
strike a sentence enhancement under section 1385, subdivision (a).” (Mendoza, supra, 88
Cal.App.5th at p. 298.) Similarly, abuse of discretion is the proper standard of review for
the trial court’s determination that dismissal of an enhancement would endanger public
safety. (Ibid.)
B. The Court Found That Dismissal of the Enhancements Would Endanger Public
Safety
At the outset, we note that, contrary to defendant’s claim, the record clearly
reflects the court’s awareness of the recent amendment to section 1385. Regarding the
section 667, subdivision (a), enhancement, the court stated, “[T]he Court is mindful that
now under 1385, the Court does have discretion to strike that.” It further explained, “The
law now stands for the proposition that I’m supposed to consider the aggravation of
multiple enhancements and I should err on the side of only one and if the use of
enhancements would cause a sentence greater than 20 years, I’m supposed to consider not
imposing the enhancement.” The court’s comment was clearly referencing section 1385,
subdivisions (c)(2)(B), and (c)(2)(C), and shows that the court understood its discretion.
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Furthermore, defendant’s entire argument is based on the claim that the trial court
did not find that dismissing the sentence enhancements would endanger public safety.
However, the record belies this claim. The court first denied defendant’s Romero request
to strike his prior strike conviction. In doing so, it referred to his criminal history, which
dated back to 2003, and enumerated his prior convictions, noting that they were “a series
of crimes, many of them violent in nature, of increasing severity.” The court also
referenced the instant case and found that there were “just too many offenses” and that
many of them were “violent in nature.” The court then proceeded to decline to exercise
its discretion under section 1385 to dismiss the section 667, subdivision (a),
enhancement. The court stated, “For the reasons that I articulated during the Romero
analysis, I am declining that invitation.” The court further stated that “when you look at
everything, [defendant] appears to be a poster child for recidivist statute [sic].” The court
remarked that it was rare to “see somebody with this many crimes committed in a single
charging document” and stated that “[t]his case presents first, last, and foremost like a
domestic violence fact pattern.” With regard to the section 12022.5, subdivision (a),
firearm enhancement, the court stated that it was “mindful of all of its discretion” but it
was “declining to exercise it given the nature of the circumstances that surround this
case.” The court went on to refer to the mitigating circumstances in section 1385,
subdivisions (c)(2)(B) and (c)(2)(C), in further explaining its decision. The court
expressly stated that “given the defendant’s criminal history, given his strike prior, given
the multiplicity of events here that happened over months, the Court does find that he is a
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danger to society; and exercising that discretion, does represent a danger to society.”
(Italics added.) Thus, the court properly declined to exercise its discretion to dismiss the
enhancements, finding that dismissal of the enhancements would endanger public safety.
(§ 1385, subd. (c)(2).) Moreover, in light of the court’s consideration of defendant’s
extensive criminal history and the circumstances of the current offenses, we cannot say
its determination that dismissal of the enhancements would endanger public safety was an
abuse of discretion.
In his reply brief, defendant aptly acknowledges that the court found he was a
danger to society when explaining why it was “not limiting the application . . . of the
enhancements.” He nonetheless cites to his age and points out that, if the court had
dismissed the five-year enhancement and thereby reduced his sentence to 32 years, he
would be in his late 60’s or early 70’s when released, and the record does not reflect that
the court considered whether his release at that age would pose a risk of serious danger to
society; rather, it found he posed a current danger to society. However, we observe that
section 1385, subdivision (c)(2), does not require the trial court to consider any particular
factors in determining whether dismissal would endanger public safety. (Mendoza,
supra, 88 Cal.App.5th at p. 299; § 1385, subd. (c)(2).) To the extent defendant is
maintaining his claim that the court did not make a proper finding that the dismissal of
the enhancements would endanger public safety, we disagree, in view of the court’s clear
finding that he was a danger to society. (See ante.) Further, given defendant’s recidivist
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history, as outlined by the trial court, the court had every reason to believe that defendant
posed a danger to society now and in the future.
In light of defendant’s extensive criminal history and the number and violent
nature of the offenses in the current case, we conclude that the trial court did not abuse its
discretion in declining to dismiss the sentencing enhancements.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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