People v. Leverette CA2/7

Filed 2/7/23 P. v. Leverette CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B317627
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA073833)
v.
DANTE GLENN LEVERETTE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Sentence vacated
with directions.
Roberta Simon, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo, Acting Supervising
Deputy Attorney General, and Marc A. Kohm, Deputy Attorney
General, for Plaintiff and Respondent.
INTRODUCTION
Dante Leverette got out of a car and shot at police officers
during a traffic stop. A jury convicted him on three counts of
attempted murder, three counts of assault with a semiautomatic
firearm on a peace officer, and one count of possession of a
firearm by a felon. In a prior appeal we reversed two of
Leverette’s convictions for attempted murder, affirmed his other
convictions, and affirmed virtually all of the sentence
enhancements the trial court imposed. Pursuant to our
directions, the trial court resentenced Leverette.
In this appeal Leverette argues he is entitled to be
resentenced again under new legislation that became effective
approximately one month after the trial court resentenced him.
He also argues the trial court erred by imposing the same fines
and fees the court previously imposed and failing to recalculate
his custody credit.
We conclude, as the People concede, that the new
sentencing law applies to Leverette and that the trial court’s
sentence did not comply with it. We also conclude, however,
contrary to the People’s argument, that the trial court’s error was
not harmless and that under the new law the court must
resentence Leverette again. Finally, we conclude, as the People
again concede, the trial court must correct the amounts of the
assessments the court imposed and recalculate Leverette’s
custody credit. Therefore, we vacate Leverette’s sentence and
direct the trial court to conduct a new sentencing hearing.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Leverette, a Passenger in a Car Stopped by Police,
Shoots an Officer
Late one night in May 2010, David Dearth was driving a
car with Leverette in the passenger seat. Dearth was trying to
buy drugs from Leverette. At some point Officer Kevin
McInerney noticed the car’s headlights were not on, and Dearth
saw red and blue lights from McInerney’s patrol car. Leverette
said to Dearth, “You have a cop following you.” Dearth turned on
his headlights and pulled over. Leverette said, “Be cool. We
weren’t doing nothing wrong. You just had your lights off.”
(People v. Leverette (Jan. 12, 2021, B292120) [nonpub. opn.]
(Leverette I).)
As Officer McInerney conducted the traffic stop, Officer
Benito Seli arrived as backup, and Sergeant Robert Hernandez
came to observe. Officer McInerney asked Dearth a few
questions and told him to get out of the car for a field sobriety
test. Leverette remained in the car. Officer Seli walked to the
passenger side of Dearth’s car. When Officer Seli was seven to
10 feet from Dearth’s car, Leverette suddenly opened the
passenger door, wedged himself against the door, and fired two
shots at Officer Seli, one of which hit the officer in his lower
abdomen. Leverette fled, but was captured. Officer Seli
survived, but suffered serious injuries. (Leverette I, supra,
B292120.)
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B. A Jury Convicts Leverette on All Counts, but We
Reverse Two of the Attempted Murder Convictions
A jury convicted Leverette on three counts of attempted
willful, deliberate, and premeditated murder, three counts of
assault with a semiautomatic firearm on a peace officer, and one
count of possession of a firearm by a felon. The jury also found
true allegations Leverette personally and intentionally used and
discharged a firearm causing great bodily injury or death, within
the meaning of Penal Code section 12022.53, subdivisions
(b)-(d),1 and section 12022.5, subdivisions (a) and (b). (Leverette I,
supra, B292120.)
The trial court sentenced Leverette to a prison term of
120 years to life (three consecutive terms of 15 years to life for
the attempted murder convictions, plus three terms of 25 years to
life for the enhancements under section 12022.53, subdivision
(d)), plus seven years (the upper term of three years for
possession of a firearm by a felon, plus two years for an on-bail
enhancement and two one-year prior prison term enhancements).
The court stayed under section 654 imposition of sentences on the
three convictions for assault on a peace officer with a
semiautomatic firearm. (Leverette I, supra, B292120.)
Leverette appealed, arguing (among other things)
substantial evidence did not support two of his attempted murder
convictions. We reversed those two convictions, rejected
Leverette’s other arguments, and directed the trial court to
resentence Leverette on his remaining convictions. (Leverette I,
supra, B292120.)
1 Undesignated statutory references are to the Penal Code.
4
C. The Trial Court Resentences Leverette and Imposes
Upper Terms on Three of Leverette’s Convictions
At the resentencing hearing, the trial court cited
Leverette’s criminal history and said, “Defendant’s been busy.”
In declining to exercise its discretion to strike the firearm
enhancements, the trial court stated Leverette had “a lengthy,
substantial, violent” criminal history, beginning at the age of 13,
that included juvenile adjudications for robbery (in one of the
robberies Leverette used a broken bottle as a weapon), assault
with a deadly weapon, and murder. The court also recounted
Leverette’s criminal history as an adult, which included
convictions for deterring or preventing by threat of violence an
executive officer from performing the officer’s duties, in violation
of section 69 (Leverette fought with police officers); possession of
cannabis for sale, in violation of Health and Safety Code section
11359; and making a criminal threat, in violation of section 422
(Leverette threatened to shoot his wife). Turning to the facts of
this case, the court said that Leverette was the kind of person
who would kill a police officer during a traffic stop and that he
shot and injured a young police officer in a way that not only
“harmed [him] for life,” but also “crushed his soul.”
The trial court sentenced Leverette to a prison term of
111 years to life. On the attempted murder conviction (for the
officer Leverette hit with a bullet), the trial court imposed a term
of 15 to life, plus 25 years to life for the firearm enhancement
under section 12022.53, subdivision (d). On two of Leverette’s
convictions for assault with a semiautomatic firearm on a peace
officer (for the two officers Leverette did not hit), the court
imposed the upper term of nine years, plus 25 years to life for the
5
firearm enhancement under section 12022.53, subdivision (d). 2
And on the conviction for possession of a firearm by a felon, the
court imposed the upper term of three years.3
In imposing the upper terms, the trial court stated it was
aware of “the new laws that [were] going to come in” and that
were going to provide that “the presumptive term is the [middle]
term, unless there are circumstances in aggravation that the
court can point to make it the [upper] term. The court is going to
find that there are aggravating circumstances, by way of the
defendant’s criminal history, his escalating violence, his
2 See People v. Oates (2004) 32 Cal.4th 1048, 1054-1055
[section 12022.53 “calls for imposition of multiple subdivision (d)
enhancements based on a single injury”]; People v. Frausto (2009)
180 Cal.App.4th 890, 899 [“By way of example: D shoots at
A and B, injuring only A. D is convicted of two counts of
attempted murder. The section 12022.53(d) enhancement must
be imposed on the B count as well.”]; see also People v.
Reyes-Tomero (2016) 4 Cal.App.5th 369, 379[“‘section 654 does
not preclude imposition of multiple subdivision (d) enhancements
based on the single injury’”].
3 The court did not impose (or impose and stay execution of)
a term on Leverette’s third conviction for assault with a
semiautomatic firearm on a peace officer. On remand, the court
should do that. (See People v. Jones (2012) 54 Cal.4th 350, 353
[correct procedure “‘is to sentence defendant for each count and
stay execution of sentence on certain of the convictions to which
section 654 is applicable’”]; People v. Alford (2010)
180 Cal.App.4th 1463, 1466 [“when a trial court determines that
section 654 applies to a particular count, the trial court must
impose sentence on that count and then stay execution of that
sentence”].)
6
continuing violence, and the vulnerability of the victims.”
Leverette timely appealed.
DISCUSSION
A. Amended Section 1170
The Legislature amended section 1170, effective January 1,
2022 (Stats. 2021, ch. 731, § 1.3), to require that, as a general
rule, “when a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term.” (§ 1170, subd. (b)(1); see People v. Whitmore (2022)
80 Cal.App.5th 116, 120 [“the Legislature amended Penal Code
section 1170, subdivision (b), to make the middle term the
presumptive sentence unless certain circumstances exist”]; People
v. Lopez (2022) 78 Cal.App.5th 459, 464 (Lopez) [“section 1170,
subdivision (b) has been amended to make the middle term the
presumptive sentence for a term of imprisonment”].) The
amended statute provides the court may impose the upper term
only if “there are circumstances in aggravation of the crime that
justify the imposition of a term of imprisonment exceeding the
middle term, and the facts underlying those circumstances 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.” (§ 1170, subd. (b)(1) & (2); see People v. Zabelle
(2022) 80 Cal.App.5th 1098, 1109 (Zabelle); Whitmore, at p. 131.)
Leverette contends, the People concede, and we agree that
he is entitled to the benefit of the amended statute and that the
trial court erred in imposing multiple upper terms without a
stipulation or a jury finding true beyond a reasonable doubt the
7
facts underlying the circumstances justifying those terms. (See
Zabelle, supra, 80 Cal.App.5th at p. 1109; People v. Jones (2022)
79 Cal.App.5th 37, 45.) Leverette and the People disagree,
however, whether the trial court’s error was harmless and
whether Leverette is entitled to a new sentencing hearing under
amended section 1170, subdivision (b).
The Supreme Court has granted review in People v. Lynch
(May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10,
2022, S274942, to decide what standard of prejudice applies on
appeal when determining whether a case should be remanded for
resentencing in light of the amendments to section 1170,
subdivision (b). Until the Supreme Court decides the issue, we
use the harmless error test articulated by the court in Lopez,
supra, 78 Cal.App.5th 459 and reformulated by the courts in
Zabelle, supra, 80 Cal.App.5th 1098 and People v. Wandrey
(2022) 80 Cal.App.5th 962 (Wandrey), review granted Sept. 28,
2022, S275942.
“The denial of the right to a jury trial on aggravating
circumstances is reviewed under the harmless error standard set
forth in Chapman v. California (1967) 386 U.S. 18.” (People v.
Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval); see Zabelle,
supra, 80 Cal.App.5th at p. 1110; Wandrey, supra, 80 Cal.App.5th
at p. 981, review granted.) If the reviewing court concludes,
“beyond a reasonable doubt, that the jury, applying the beyond-a-
reasonable-doubt standard, unquestionably would have found
true at least a single aggravating circumstance had it been
submitted to the jury, the Sixth Amendment error properly may
be found harmless.” (Sandoval, at p. 839; see People v. Dunn
(2022) 81 Cal.App.5th 394, 408, review granted Oct. 12, 2022,
S275655; Zabelle, at p. 1111.)
8
Whether a violation of section 1170, subdivision (b), is
harmless is an issue of state law we review under People v.
Watson (1956) 46 Cal.2d 818. (People v. Ross (2022)
86 Cal.App.5th 1346, 1354; Zabelle, supra, 80 Cal.App.5th at
p. 1110; Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) In Lopez
the court held that sentencing error under amended section 1170,
subdivision (b), is harmless if the reviewing court “can conclude
beyond reasonable doubt that a jury would have found true
beyond a reasonable doubt all of the aggravating factors on which
the trial court relied,” other than those related to the defendant’s
prior convictions, and that otherwise the reviewing court must
determine whether it is reasonably probable the “trial court
would nevertheless have exercised its discretion to select the
upper term if it had recognized that it could permissibly rely on
only a single one of the aggravating factors, a few of the
aggravating factors, or none of the aggravating factors, rather
than all of the factors on which it previously relied.” (Lopez, at
p. 467 & fn. 11.) In Zabelle the court restated this test as follows:
If the trial court relied on more than one aggravating
circumstance, we must determine “for each aggravating fact, . . .
whether it is reasonably probable that the jury would have found
the fact not true” and “then, with the aggravating facts that
survive this review, . . . whether it is reasonably probable that
the trial court would have chosen a lesser sentence had it
considered only these aggravating facts.” (Zabelle, at p. 1112; see
Wandrey, supra, 80 Cal.App.5th at p. 982 [even if the trial court
properly relied on one aggravating factor to support imposing an
upper term, the reviewing court must ask “whether the trial
court would have exercised its discretion in the same way if it
had been aware of the statutory presumption in favor of the
9
middle term”]; see also People v. Dunn, supra, 81 Cal.App.5th at
p. 410 [stating another formulation of the harmless error test
under section 1170, subdivision (b)], review granted.)
B. The Trial Court’s Error in Resentencing Leverette Was
Not Harmless
The People argue the trial court’s error was harmless
because the court properly relied on Leverette’s prior convictions
under section 1170, subdivision (b), and “because the jury would
have found the facts underlying the aggravating factor[s] true
beyond a reasonable doubt had the issue been submitted for a
specific jury finding.” We agree with the first part of the People’s
argument, but not the second.
California Rules of Court, rule 4.421, lists circumstances in
aggravation a court may consider in imposing the upper term.4
The trial court specified several aggravating circumstances that
supported imposing upper terms on three of Leverette’s
convictions. In particular, the court cited Leverette’s prior
convictions; his “escalating violence” (presumably of his prior
convictions) (see rule 4.421(b)(2) [“the defendant’s prior
convictions as an adult or sustained petitions in juvenile
delinquency proceedings are numerous or of increasing
seriousness”]); his “continuing violence” (it is unclear what the
court meant by this and whether the court was referring to any of
4 Citations to rules are to the California Rules of Court.
10
the circumstances in rule 4.421);5 and the victims’ vulnerability
(see rule 4.421(a)(3) [“[t]he victim was particularly vulnerable”]).
Because one of the circumstances the trial court used to
impose upper terms was Leverette’s prior convictions, there was
no constitutional violation. (See People v. Gallardo (2017)
4 Cal.5th 120, 138 [“a trial court can determine the fact of a prior
conviction without infringing on the defendant’s Sixth
Amendment rights”]; see also People v. Perez (2018) 4 Cal.5th
1055, 1063 [“Under the Sixth Amendment, any fact other than
the fact of a prior conviction that increases the penalty for a
crime beyond the statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt.”]; People v. Black
(2007) 41 Cal.4th 799, 818 [“the right to a jury trial does not
apply to the fact of a prior conviction”]; People v. Garcia (2008)
159 Cal.App.4th 163, 172 [“Imposition of the upper term did not
violate [the defendant’s] Sixth Amendment right to a jury trial
because at least one aggravating circumstance was established by
his record of prior convictions.”].) And section 1170,
subdivision (b)(3), exempts prior convictions from the
requirement the circumstances justifying imposition of the upper
5 By “continuing violence” the trial court may have meant
Leverette’s violence “continued” up to the current offenses, which
could have been a reference to rule 4.421(a)(1), which lists as an
aggravating circumstance that the “crime involved great violence,
great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness.”
The court, however, did not state any of those things. The court
also could have been referring to rule 4.421(b)(1), which lists as
an aggravating factor that the “defendant has engaged in violent
conduct that indicates a serious danger to society.” But the court
did not state that either.
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term must be stipulated to by the defendant or found true by a
jury beyond a reasonable doubt. (See People v. Ross, supra
86 Cal.App.5th at p. 1353 [section 1170, subdivision (b)(3),
“explicitly permits a trial court to ‘consider the defendant’s prior
convictions in determining sentencing based on a certified record
of conviction without submitting the prior convictions to a jury’”];
People v. Flowers (2022) 81 Cal.App.5th 680, 685 [“‘[t]he court
may consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without
submitting the prior convictions to a jury’”], review granted
October 12, 2022, S276237.)
Turning to the state law error, we can conclude it is
reasonably probable a jury would have found true that
Leverette’s prior juvenile adjudications and adult convictions
were numerous and of increasing violence. (See rule 4.421(b)(2).)
As discussed, Leverette’s juvenile adjudications went from
robbery to assault with a deadly weapon to murder, and his
criminal convictions went from resisting arrest to possession of
cannabis for sale to making a criminal threat to kill his wife.
Leverette’s adjudications and convictions were certainly
numerous and, putting aside that it is hard to commit a more
violent crime than murder (which Leverette committed as a
juvenile), his adjudications and convictions overall reflected
increasing violence. (See People v. Black, supra, 41 Cal.4th at
p. 818 [three prior misdemeanor convictions and two prior felony
convictions were “both numerous and of increasing seriousness”];
People v. Quiles (2009) 177 Cal.App.4th 612, 621 [juvenile
adjudications from burglary to robbery “were of increasing
seriousness”]; People v. Garcia, supra, 159 Cal.App.4th at p. 172
[defendant’s “record of numerous, increasingly serious convictions
12
was an aggravating circumstance that warranted imposition of
the upper term”].)
But we cannot reach that conclusion for the other
circumstances the court cited as bases for imposing upper terms,
“continuing violence” and “vulnerability of the victims.” Because
it is unclear what the court meant by “continuing violence,” we
cannot evaluate whether it is reasonably probable a jury would
find this circumstance true beyond a reasonable doubt.
Regarding whether the victims were particularly vulnerable, it is
certainly true that the officers were in a relatively vulnerable
position as they approached Dearth’s car during the traffic stop
and that they did not know Leverette would jump out of the
passenger side door with a semiautomatic weapon and start
shooting. In addition, the trial court commented Officer Seli “was
just a young officer.” Yet all three victims were armed law
enforcement officers, trained to respond to dangerous situations,
wearing protective gear, and prepared to use lethal force.
(Leverette I, supra, B292120.) It is reasonably probable a jury
would have found the officers did not qualify as particularly
vulnerable victims. (See People v. Sandoval, supra, 41 Cal.4th at
p. 840 [“to the extent a potential aggravating circumstance at
issue in a particular case rests on a somewhat vague or subjective
standard, it may be difficult for a reviewing court to conclude
with confidence that, had the issue been submitted to the jury,
the jury would have assessed the facts in the same manner as did
the trial court”]; People v. Ross, supra, 86 Cal.App.5th at p. 1355
[reviewing court could not “conclude beyond reasonable doubt
that a jury would have found true beyond a reasonable doubt the
aggravating factor” in rule 4.421(a)(3) because that factor
requires “a subjective evaluation as to whether the victim was
13
particularly vulnerable”]; see also People v. Esquibel
(2008) 166 Cal.App.4th 539, 558 [“‘a “particularly vulnerable”
victim is one who is vulnerable “in a special or unusual degree, to
an extent greater than in other cases”’”]; People v. Bloom (1983)
142 Cal.App.3d 310, 321 [“Vulnerability means defenseless,
unguarded, unprotected, accessible, assailable, one who is
susceptible to the defendant’s criminal act.”].)
Finally, because not all circumstances survive the first step
of the analysis (only two of the four do), we must ask whether it
is reasonably probable the trial court, had it considered only
Leverette’s prior convictions and escalating violence, would have
chosen middle terms. (See People v. Zabelle, supra,
80 Cal.App.5th at p. 1112 [“we must consider whether it is
reasonably probable that the trial court would have chosen a
lesser sentence in the absence of the error”].) It is (i.e.,
reasonably probable). The trial court never indicated whether
any particular circumstance or circumstances were sufficient to
support imposing upper terms, and the court did not indicate how
much weight it gave each of the circumstances the court stated
justified imposing those terms. And one of the circumstances the
court relied on, “continuing violence,” may not (depending on
what the court meant) have been a proper aggravating factor.
Therefore, Leverette is entitled to another sentencing hearing
under the recent amendments to section 1170, subdivision (b).
(See Zabelle, at p. 1115 [defendant was entitled to a new
sentencing hearing where “the trial court gave no particular
weight to any of its listed aggravating circumstances,” and the
reviewing court could not “determine whether the trial court
would have issued the same sentence had it been left with” less
than all the aggravating circumstances the trial court cited];
14
People v. Wandrey, supra, 80 Cal.App.5th at p. 983 [“[s]ome
degree of speculation would necessarily be required for us to
conclude the jury would have agreed with” the trial court’s
assessment the victim was particularly vulnerable “or that the
trial court would have exercised its sentencing discretion in the
same way if it had taken the statutory presumption in favor of
the middle term into account”], review granted.)
C. The Trial Court Must Correct the Amount of
Assessments It Imposed
At Leverette’s initial sentencing hearing, the court imposed
on each of Leverette’s seven convictions a $40 court operations
assessment (for a total of $280) under section 1465.8 and a $30
court facilities assessment (for a total of $210) under Government
Code section 70373. At the resentencing hearing the court stated
that Leverette’s “fees and fines are the same that were ordered
before,” and the abstract of judgment reflects the same amounts:
$280 in court operations assessments and $210 in court facilities
assessments. After we vacated two of Leverette’s convictions,
however, only five convictions remain. Therefore, the trial court
should have imposed a total of $200 in court operations
assessments under Penal Code section 1465.8 (5 x $40) and $150
in facilities assessments under Government Code section 70373
(5 x $30). The trial court must correct the abstract of judgment to
reflect these amounts.
D. The Trial Court Must Also Recalculate Leverette’s
Custody Credit
At the initial sentencing hearing the trial court awarded
Leverette 3,013 days of actual credit. (See People v. Duff (2010)
15
50 Cal.4th 787, 793 [“At the time of sentencing, credit for time
served, including conduct credit, is calculated by the court.”].)
At the resentencing hearing, the court did not recalculate
Leverette’s custody credit because the trial court believed prison
officials had the responsibility to “figure out what his actual
custody credits are.” That was error. (See People v. Buckhalter
(2001) 26 Cal.4th 20, 29 [“when a prison term already in progress
is modified as the result of an appellate sentence remand, the
sentencing court must recalculate and credit against the modified
sentence all actual time the defendant has already served,
whether in jail or prison, and whether before or since he was
originally committed and delivered to prison custody”]; People v.
Salgado (2022) 82 Cal.App.5th 376, 381 [same].)
16
DISPOSITION
The sentence is vacated. The trial court is directed to
resentence Leverette consistent with amended section 1170,
subdivision (b), and any other applicable ameliorative legislation.
The trial court is also directed to impose the correct amount of
assessments on Leverette’s convictions and to recalculate
Leverette’s custody credit. Finally, the trial court is directed to
prepare an amended abstract of judgment and send it to the
Department of Corrections and Rehabilitation.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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