Filed 2/7/23 P. v. Leverette CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DANTE GLENN LEVERETTE,

Defendant and Appellant.

 B317627

 (Los Angeles County

 Super. Ct. No. SA073833)

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.
2

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.
3

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.)
4

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.
5

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 
6

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”].)
7

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 
8

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-areasonable-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.) 
9

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 
10

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.
11

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.
12

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 
13

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 
14

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]; 
15

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) 
16

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].)
17

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.