Filed 1/12/21 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,

Plaintiff and Respondent,

v.

DANTE LEVERETTE,

Defendant and Appellant.

 B292120

 (Los Angeles County

 Super. Ct. No. SA073833-01)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Eleanor J. Hunter, Judge. Affirmed in part, 

reversed in part, and remanded with directions.

Chris R. Redburn, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Steven E. Mercer, Michael C. Keller 

and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

INTRODUCTION

One shooter, two shots, three police officers, only one of 

whom was hit: three convictions for attempted murder, three for 

assaulting a peace officer with a firearm, and one for possession 

of a firearm by a felon. We affirm one of the three convictions for 

attempted murder, all the convictions for the remaining offenses, 

all the firearm enhancements, almost all the other 

enhancements, and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Dante Leverette of Attempting To 

Murder Three Police Officers and Assaulting Them 

with a Firearm

A jury convicted Dante 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 the 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), (c), (d),1 and section 12022.5, subdivisions (a)

and (d). The jury also found true the allegation Leverette was on 

bail when he committed the offenses. In a separate proceeding, 

Leverette admitted he served two prior prison terms within the 

meaning of section 667.5, subdivision (b), one for deterring, 

preventing, or resisting by means of threat, force, or violence an 

1 Undesignated statutory references are to the Penal Code.
3

executive officer performing his or her duty, and one for 

possessing marijuana for sale. 

On the attempted murder convictions, the trial court 

sentenced Leverette to three consecutive terms of 15 years to life, 

plus 25 years to life under section 12022.53, subdivision (d). On 

the conviction for possession of a firearm by a felon, the court 

sentenced Leverette to a consecutive term of three years (the 

upper term), plus two years for the on-bail enhancement and two 

years for the two 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. 

B. Officer Benito Seli Responds to a Traffic Stop in 

Progress and Is Shot

On May 18, 2010, at 1:30 a.m., Santa Monica Police Officer 

Benito Seli was assigned to back up Officer Kevin McInerney, 

who was conducting a traffic stop near the intersection of Lincoln 

and Pico Boulevards. As Officer Seli drove south on Lincoln 

Boulevard and crossed Pico Boulevard, he saw Officer 

McInerney’s patrol car parked across the street, facing north, at 

an angle behind a black sports utility vehicle. Officer McInerney 

had the light on his patrol car illuminated and both its spotlights 

shining on the SUV. Officer Seli was able to see a driver and a 

passenger in the SUV. He also observed the patrol car of 

Sergeant Robert Hernandez, who was there as “a courtesy 

backup for Officer McInerney,” parked behind Officer 

McInerney’s car. There were no other officers yet at the scene. 

Officer Seli parked around the corner on Bay Street to 

avoid blocking the intersection. As he walked toward Lincoln
4

Boulevard, Sergeant Hernandez approached him and said Officer 

McInerney was going to start an investigation for driving under 

the influence. Officer Seli “assumed the role of cover officer,” 

which involved “maintaining situational awareness and offering 

protection for everybody on scene.” 

Officer Seli saw Officer McInerney walk to the driver’s side 

of the SUV and tell the driver to get out of the car and go to the 

sidewalk on the east side of Lincoln Boulevard. Officer 

McInerney used his flashlight to direct the driver where to stand

on the sidewalk. The driver, David Dearth, complied. As Officer 

McInerney “began asking the typical questions associated with a 

DUI” investigation, Officer Seli approached the rear of the SUV 

and walked toward the passenger side to begin his “interaction 

with that individual.” When Officer Seli was seven to 10 feet 

from the SUV, with his flashlight in his left hand to keep his gun 

hand free, he saw the passenger, Leverette, quickly open the door 

of the SUV, “get out in a very deliberate and crouched manner,” 

wedge himself against the door, and extend his arm holding a 

gun, slanted at a 45-degree angle. Officer Seli found himself

“staring down the barrel of a two-toned gun” that looked like a

Smith & Wesson Sigma he used to have. Within two to three 

seconds, Leverette fired two shots at Officer Seli. 

After the first shot, Officer Seli felt pain and a burning 

sensation in the area of his right lower abdomen and hip. He 

testified that both shots were generally in his direction and that 

he thought the second shot went over his left shoulder. Officer 

Seli took his gun out of his holster and fired two shots at 

Leverette in self-defense. In pain, he retreated behind the back 

of the SUV for cover, saw Officer McInerney and Sergeant 

Hernandez shoot at Leverette, and called for assistance. 
5

Leverette fled north on Lincoln Boulevard. Other officers arrived 

and tended to Officer Seli until paramedics came and took Officer 

Seli to the hospital. 

C. Sergeant Robert Hernandez Arrives at a Traffic Stop 

To Observe and Assist

Sergeant Robert Hernandez was a training sergeant who

supervised probationary officers assigned to his shift. As a 

supervisor, he observed probationary officers in the field,

reviewed their reports, and wrote quarterly evaluations of their 

performance. On May 18, 2010 Officer McInerney was one of the 

probationary officers assigned to Sergeant Hernandez’s shift. 

Sergeant Hernandez had not previously worked with Officer 

McInerney, and he “was specifically listening for calls that 

[Officer McInerney] was assigned to” so he could observe Officer 

McInerney take an enforcement action. 

At 1:30 a.m. Sergeant Hernandez heard Officer McInerney 

call in a traffic stop on Lincoln Boulevard, and Sergeant 

Hernandez decided to respond to the call and observe. On 

arriving, he parked behind Officer McInerney’s car. 

Officer McInerney told Sergeant Hernandez that he had 

stopped the SUV for driving without headlights, that he smelled 

alcohol on the driver’s breath, and that he was going to bring the 

driver out of the SUV to conduct a DUI investigation. Officer 

McInerney did not tell Sergeant Hernandez there was another 

person in the SUV. When Officer Seli arrived a few minutes 

later, Sergeant Hernandez told him Officer McInerney, who had 

returned to the driver’s side of the SUV, was going to conduct a 

DUI investigation. Sergeant Hernandez did not approach the 
6

SUV, but remained back to observe how Officer McInerney 

conducted the investigation. 

Sergeant Hernandez saw Officer McInerney bring the 

driver, Dearth, to the east sidewalk of Lincoln Boulevard,

question him, and begin to administer a field sobriety test. 

Officer McInerney shined his flashlight on a spot on the sidewalk 

and told Dearth to stand at that spot. Sergeant Hernandez 

returned to his car to retrieve his flashlight when he heard 

someone say, “Oh, shit.” He looked back and saw the passenger 

door of the SUV open and Leverette, “half-crouched, half-out of” 

the SUV, lean with his arm extended and a gun in his hand. 

According to Sergeant Hernandez, Leverette was pointing the 

gun east or southeast, “definitely not in [his] direction but 

pointed in another direction,” while Officer McInerney and 

Dearth were on the sidewalk to the east. Sergeant Hernandez 

heard one (according to his testimony at trial) or two (according 

to his testimony at the preliminary hearing) gunshots. Sergeant 

Hernandez drew his handgun and, as he moved to his left to take 

cover behind Officer McInerney’s patrol car, fired four or five 

times at Leverette. He did not know where Officer Seli or Officer 

McInerney was at this point, but he knew they were not in front 

of him when he fired at Leverette. Sergeant Hernandez never 

saw Leverette point the gun or aim at him, and he believed 

Leverette’s shot “was pointed at Officer McInerney and Mr. 

Dearth.” 

Leverette fled up Lincoln Boulevard. Sergeant Hernandez 

chased Leverette but lost him when he turned east on Pico 

Boulevard. Sergeant Hernandez returned to Lincoln Boulevard 

and discovered Officer Seli had been shot and was bleeding “a 

great deal.” 
7

Several hours later a team of 60 officers searched for

Leverette and ultimately found him hiding in a nearby alley. As 

Leverette tried to escape, officers from a Special Weapons and 

Tactics Team shot him and arrested him after he fell to the 

ground. Sergeant Hernandez identified Leverette in a hospital 

emergency room as “the person that had fired on myself and 

Officer Seli and McInerney from inside” the SUV. Officers later 

found Leverette’s gun, a .40-caliber semiautomatic handgun, 

hidden near the alley. 

D. Officer Kevin McInerney Makes a Traffic Stop

On May 18, 2010 Officer Kevin McInerny had been a rookie 

officer with the Santa Monica Police Department for six months. 

At 1:30 a.m. he was driving south on Lincoln Boulevard when he 

saw an SUV driving north with its headlights off. He made a 

U-turn, followed the SUV, and pulled it over. He parked his 

patrol car at an angle behind the SUV as a safety precaution to 

protect himself from cars coming up the street and pointed his 

spotlights at the SUV. Officer McInerney approached the car and 

saw two people in it. He obtained Dearth’s driver’s license and a

car rental agreement and began asking him questions. Most of 

the officer’s attention was on Dearth, to whom he directed most of 

his questions, but he asked both occupants if they were on 

probation or parole. 

Officer McInerney heard on the radio that Officer Seli was 

the assigned backup officer and that Sergeant Hernandez was 

also going to respond. When they arrived, Officer McInerney told 

them he was going to “pull the driver out,” but he did not say 

there was a passenger in the car. Officer McInerney returned to 

the SUV, told Dearth to get out, and directed him to the 
8

sidewalk. Officer McInerney believed that Officer Seli, as the 

backup officer, would contact the passenger to get information 

about him. 

Standing with Dearth on the sidewalk, Officer McInerney 

saw Leverette open the passenger door quickly, jump out, point a 

gun to Officer McInerney’s left (where Officer Seli and Sergeant 

Hernandez were), and fire two shots. Officer McInerney 

responded by firing seven shots at Leverette as he ran away. 

Officer McInerney then told Dearth to get on the ground. He did 

not know at that time where Officer Seli was, but he knew Officer 

Seli was not in front of him as he shot at Leverette. After he 

handcuffed Dearth and put him in a patrol car, Officer McInerney 

saw Officer Seli had been shot and was bleeding from his lower 

abdomen. Officer McInerney identified Leverette at trial as the 

person who shot Officer Seli.

E. David Dearth Goes Looking for Drugs and Finds a 

Shootout

David Dearth, a former professional bodybuilder, the 1989 

Mr. Universe, and a recovering drug addict, was in Los Angeles 

in May 2010 to work on a celebrity training video and a potential 

television show. The producers of the show put him up in a 

Marina Del Rey condominium and rented him an SUV. 

On the evening of May 17-18, 2010 Dearth was watching 

television in the condominium when he decided to go to a bar. He 

had two beers and a shot of German liquor or schnapps. He got 

back in his car and drove to a neighborhood he knew to look for 

drugs. He eventually found someone, Leverette, willing to sell 

him some. Leverette got in Dearth’s SUV wearing a hat and a 

red banana across his face and showed Dearth several rocks of 

cocaine. Leverette told Dearth to drive to a gas station, where 
9

Dearth bought a couple of roses.2 When he drove away from the 

gas station, Dearth forgot to turn on the SUV’s headlights.

As he traveled north on Lincoln Boulevard, Dearth saw red 

and blue police lights from Officer McInerney’s patrol car in his 

rear view mirror. Leverette said to Dearth, “You have a cop 

following you.” Dearth turned on his car’s headlights, and the 

officer pulled the SUV over just south of Pico Boulevard. 

Leverette said, “Be cool. We weren’t doing nothing wrong. You 

just had your lights off.” Officer McInerney approached the car 

and asked Dearth if he had been drinking. After Dearth gave 

Officer McInerney his driver’s license and the SUV’s registration, 

the officer returned to his patrol car. Leverette asked Dearth if 

he could see how many police officers there were behind them. 

Dearth said it looked like there was only one officer, but he was 

not sure. 

Officer McInerney returned to the SUV and asked Dearth 

and Leverette a few questions. Officer McInerney told Dearth to 

get out of the SUV and go to the sidewalk for a field sobriety test. 

Leverette remained in the car, while Officer McInerney took 

Dearth 10 feet from the SUV. Dearth saw two other officers had 

arrived on the scene and were in the street, not on the sidewalk. 

Suddenly, Officer McInerney stopped questioning Dearth 

and yelled, “Get back in the car.” Dearth looked at the SUV and 

saw Leverette shooting a gun. Dearth heard someone say, “Gun, 

gun,” then heard multiple gunshots. Dearth stood on the 

sidewalk watching, and then covered his head with his hands. It 

appeared to Dearth that Leverette was aiming the gun toward 

him, although the gun “was moving around.” 

2 People using drugs commonly use the glass tubes that hold 

the roses to smoke the drugs. 
10

Dearth saw Leverette run north on Lincoln Boulevard, and 

Officer McInerney forced Dearth down to the ground. One of the 

officers asked, “Is everyone okay?” and the officer who had been 

shot said, “No, I’m hit. I’m hit. It went under my vest.” Officers 

put Dearth into the back of a police car. 

DISCUSSION

A. Substantial Evidence Supported Only One of 

Leverette’s Three Convictions for Attempted Murder

Leverette does not challenge his conviction for the 

attempted murder of Officer Seli for lack of substantial evidence. 

He does argue, however, substantial evidence did not support his 

convictions for the attempted murders of Sergeant Hernandez 

and Officer McInerney. Leverette argues substantial evidence 

did not support the jury’s finding that he “harbored an express 

intent to kill either Hernandez or McInerney.” 

1. Applicable Law

“‘When considering a challenge to the sufficiency of the 

evidence to support a conviction, we review the entire record in 

the light most favorable to the judgment to determine whether it 

contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable 

trier of fact could find the defendant guilty beyond a reasonable 

doubt.’ [Citation.] We determine ‘whether, after viewing the 

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.’ [Citation.] In so doing, a 

reviewing court ‘“‘presumes in support of the judgment the 
11

existence of every fact the trier could reasonably deduce from the 

evidence.’”’” (People v. Morales (2020) 10 Cal.5th 76, 88; see 

People v. Beck and Cruz (2019) 8 Cal.5th 548, 626.)

“To prove the crime of attempted murder, the prosecution 

must establish ‘the specific intent to kill and the commission of a 

direct but ineffectual act toward accomplishing the intended 

killing.’ [Citation.] When a single act is charged as an attempt 

on the lives of two or more persons, the intent to kill element 

must be examined independently as to each alleged attempted 

murder victim; an intent to kill cannot be ‘transferred’ from one 

attempted murder victim to another under the transferred intent 

doctrine.” (People v. Canizales (2019) 7 Cal.5th 591, 602; accord,

In re Rayford (2020) 50 Cal.App.5th 754, 767-768; see People v. 

Perez (2010) 50 Cal.4th 222, 230 (Perez) [“‘“[g]uilt of attempted 

murder must be judged separately as to each alleged victim”’”].) 

“‘“The mental state required for attempted murder has long 

differed from that required for murder itself. Murder does not 

require the intent to kill. Implied malice—a conscious disregard 

for life—suffices.” [Citations.] In contrast, “[a]ttempted murder 

requires the specific intent to kill . . . .”’” (Perez, at p. 229.) The 

“‘“act of firing toward a victim at a close, but not point blank, 

range ‘in a manner that could have inflicted a mortal wound had 

the bullet been on target is sufficient to support an inference of 

intent to kill . . . .’”’” (Id. at p. 230; see People v. Smith (2005) 

37 Cal.4th 733, 742 [“the act of purposefully firing a lethal 

weapon at another human being at close range, without legal 

excuse, generally gives rise to an inference that the shooter acted 

with express malice”].)
12

2. Substantial Evidence Supported Only One 

Attempted Murder Conviction

The evidence Leverette fired at Officer Seli at a range of 

seven to 10 feet was substantial evidence he intended to kill that 

officer and thus acted with express malice. As stated, Leverette 

does not argue otherwise. Substantial evidence, however, did not 

support the jury’s finding Leverette intended to kill Sergeant 

Hernandez or Officer McInerney. Officer McInerney (the gun 

was aimed “off to my left”) and Sergeant Hernandez (“it was 

definitely not pointed in my direction”) testified Leverette did not 

shoot at them. Leverette fired only two shots, both of them in 

Officer Seli’s direction: one hit Officer Seli and the other lodged in 

the right rear panel of the SUV, near the taillight. Neither 

Sergeant Hernandez nor Officer McInerney was in those 

locations when Leverette fired the two shots.3 There was no 

evidence Leverette intended to kill anyone other than Officer 

Seli. Although, as the People point out, “a single shot may 

support multiple convictions if the victims were very close 

together,” the three officers here were not very close together.

The People assert “Officer Seli testified that [Leverette] 

shot him, and then deliberately changed his aim to shoot the 

other officers.” That’s not quite what Officer Seli said. He 

testified: “The second shot that was fired was over my left 

shoulder, which is where—I am right about here by the door, and 

3 The criminologist who removed the second bullet from the 

SUV testified that, had the SUV not been “in the way,” the bullet 

was heading toward Officer McInerney’s car. Sergeant 

Hernandez, as discussed, was not there; he was walking back to 

his car to get his flashlight when Leverette fired the two shots at 

Officer Seli. 
13

as Officer McInerney and Sergeant Hernandez were right about 

here . . . and it would have been over my left shoulder. It was two 

deliberate thrusts, two rounds, one for me and one aimed at those 

two officers.” But Officer Seli also testified Leverette fired the 

two shots at him. And the second shot did not go, and could not 

have gone, over Officer Seli’s left shoulder; it hit the right rear 

panel of the SUV and lodged near the taillight. Unless Officer 

Seli was lying on the pavement (and he was not), it was 

physically impossible for the shot to have gone over his left 

shoulder. (Cf. People v. Gomez (2018) 6 Cal.5th 243, 281

[“‘[r]esolution of conflicts and inconsistencies in the testimony is 

the exclusive province of the trier of fact’ [citation] in the ‘absence 

of patent falsity, inherent improbability, or other reason to 

question [the testimony’s] validity’”]; People v. Reed (2018) 

4 Cal.5th 989, 1006 [we do not question a witness’s credibility 

“when considering sufficiency of the evidence so long as the 

witness’s testimony is not inherently improbable”]; People v. 

Young (2005) 34 Cal.4th 1149, 1181 [“unless the testimony is 

physically impossible or inherently improbable, testimony of a 

single witness is sufficient to support a conviction”].)

The Supreme Court’s decision in Perez, supra, 50 Cal.4th 

222 confirms that substantial evidence to support Leverette’s 

convictions for the attempted murders of Sergeant Hernandez 

and Officer McInerney was lacking here. In Perez the defendant, 

without targeting any specific individual, fired one shot at a 

group of eight people, seven of whom were police officers, hitting 

one of the officers in the hand and severing his finger. The jury 

convicted the defendant on eight counts of attempted 

premeditated murder. (Id. at p. 224.) The Supreme Court held 

the evidence was sufficient to sustain only one of the eight 
14

convictions for attempted premeditated murder. (Id. at p. 225.) 

The Supreme Court stated that, “where the shooter 

indiscriminately fires a single shot at a group of persons with 

specific intent to kill someone, but without targeting any 

particular individual or individuals, he is guilty of a single count 

of attempted murder.” (Ibid.) The Supreme Court emphasized 

that, “in order for defendant to be convicted of the attempted

murder of each of the [eight people] in the group into which he 

fired the single shot, the prosecution had to prove he acted with 

the specific intent to kill each victim.” (Id. at p. 230.) The 

Supreme Court held there was “no evidence that defendant knew 

or specifically targeted any particular individual or individuals in 

the group of officers he fired upon,” no evidence “he specifically 

intended to kill two or more persons with the single shot,” and 

“no evidence defendant specifically intended to kill two or more 

persons in the group but was only thwarted from firing off the 

required additional shots by circumstances beyond his control.” 

(Id. at pp. 230-231, fns. omitted; see People v. McCloud (2012) 

211 Cal.App.4th 788, 806 [“the targeting of [one] individual 

cannot be the basis for convicting [the defendant] of the 

attempted murders of other individuals—the doctrine of 

transferred intent ‘does not apply to an inchoate crime like 

attempted murder’”].)

Here, of course, there was substantial evidence Leverette 

intended to kill a particular individual: Officer Seli. But, as in 

Perez, there was no evidence that Leverette specifically targeted 

Sergeant Hernandez or Officer McInerney, that he specifically 

intended to kill them both with the second shot, or that he 
15

intended to kill them but was thwarted by the circumstances.4 

Sergeant Hernandez and Officer McInerney were not close 

enough to Officer Seli or to each other for Leverette to have 

intended to kill two or more of them with one shot. (See People v. 

McCloud, supra, 211 Cal.App.4th at p. 800 [“Here, as in Perez, 

‘the evidence is insufficient to establish that defendant[s] acted 

with the intent to kill two or more individuals’ per shot fired.”].) 

Under the facts of this case, firing two shots at one officer among 

three on the scene did not support more than one conviction for 

attempted murder.

5

4 The People argue that “circumstances may have prevented 

[Leverette] from firing as many times as he had intended” and 

that there was substantial evidence Leverette “intended to 

commit murder, but was thwarted instead of completing his 

plan.” To the extent Leverette was attempting to kill Officer Seli, 

the People are correct: Return fire from the officers may have 

prevented Leverette from firing more than two shots at Officer 

Seli. But there was no evidence Leverette was executing a plan 

to kill the other two officers when they began firing at him.

5 People v. Sánchez (2016) 63 Cal.4th 411, cited by the 

People, is distinguishable. In that case the victim “testified that 

defendant placed his finger on the trigger when he pointed the 

gun at him and then, when he realized the gun was empty, made 

a gesture to change the clip.” (Id. at p. 457.) There was no 

evidence Leverette engaged in any similar conduct toward 

Sergeant Hernandez or Officer McInerney.
16

B. Substantial Evidence Supported All Three 

Convictions for Assault on a Peace Officer

But it did support three convictions for assault on a peace 

officer. Leverette contends that, “[b]ecause he fired only two 

shots, [he] did not equip himself with sufficient means to assault 

three individuals with a weapon.” Although Leverette does not 

identify which of the three assault convictions he is challenging

(Seli, Hernandez, or McInerney), he contends that he “never had 

the present ability to assault three individuals” and that “the 

convictions on one of the assault counts must be reversed.” These 

contentions fail.

Section 245, subdivision (d)(2), provides that a defendant 

who “commits an assault upon the person of a peace officer . . .

with a semiautomatic firearm and who knows or reasonably 

should know that the victim is a peace officer . . . engaged in the 

performance of his or her duties, when the peace officer . . . is 

engaged in the performance of his or her duties,” is guilty of a 

felony. To establish a violation of section 245, “among the 

elements that must be proven are those of assault. This includes 

demonstrating that the defendant had the ‘present ability . . . to 

commit a violent injury.’ [Citations.] To have a ‘present ability,’ 

there must be threat of ‘“a present, and not a future injury.”’ 

[Citation.] However, immediacy is not required. [Citation.] 

‘[W]hen a defendant equips and positions himself to carry out a 

battery, he has the “present ability” required . . . if he is capable 

of inflicting injury on the given occasion, even if some steps 

remain to be taken, and even if the victim or the surrounding 

circumstances thwart the infliction of injury.’” (People v. Nguyen

(2017) 12 Cal.App.5th 44, 48, fn. omitted.) For the crime of 

assault, “‘immediately’ does not mean ‘instantaneously.’ It 
17

simply means that the defendant must have the ability to inflict 

injury on the present occasion. Numerous California cases 

establish that an assault may be committed even if the defendant 

is several steps away from actually inflicting injury, or if the 

victim is in a protected position so that injury would not be 

‘immediate,’ in the strictest sense of that term.” (People v.

Chance (2008) 44 Cal.4th 1164, 1168, fn. omitted.) Unlike the 

crime of attempted murder, the crime of “assault is a general 

intent crime” and “does not require a specific intent to injure the 

victim.” (People v. Hernandez (2011) 51 Cal.4th 733, 747.) 

Leverette had the means and present ability to violently 

injure all three officers. He had his semiautomatic firearm out 

and was shooting in the general direction of the officers, and 

specifically at one of them. Although there was no substantial 

evidence he shot at more than one officer, he certainly had the 

present ability to do so. (See People v. Chance, supra, 44 Cal.4th 

at p. 1168 [“present ability element of assault . . . is satisfied 

when ‘a defendant has attained the means and location to strike

immediately’”]; In re Raymundo M. (2020) 52 Cal.App.5th 78, 89 

[an assault with a deadly weapon can occur even if the defendant 

does not use the weapon].) This is true even though Sergeant 

Hernandez took cover behind Officer McInerney’s patrol car and 

all three officers returned fire. (Chance, at p. 1168; see People v. 

Navarro (2013) 212 Cal.App.4th 1336, 1346-1347 [crime of 

assault “may be established even where the victim took effective 

steps to avoid or prevent injury”].) Indeed, the Supreme Court in

Perez, supra, 50 Cal.4th 222, after holding the defendant in that 

case could only be convicted of one count of attempted murder, 

stated: “Defendant’s act of endangering the lives of each 

individual in the group at which he fired the shot will not go 
18

unpunished. He was properly convicted of [eight] counts of 

assault with a semiautomatic firearm . . . .” (Id. at pp. 233-234.) 

Substantial evidence supported Leverette’s three convictions for 

assault with a semiautomatic firearm on a peace officer.

C. The Trial Court Did Not Err in Refusing To Give an 

Instruction on Destruction of Evidence

Leverette argues the trial court violated his due process 

rights by refusing to give an instruction he proposed that would 

have told the jury it could consider, in evaluating the 

prosecution’s case, whether the Santa Monica Police Department

improperly failed to preserve the SUV as evidence by returning it 

to the rental company five days after the shooting. Leverette also 

argues the trial court erred in not giving similar instructions sua 

sponte on the prosecution’s destruction of, or failure to preserve,

a videotape of the shooting taken from a gas station across the 

street and recordings of the incident from the three police cars’ 

dashboard cameras or “dash cams.”6 Leverette argues that “at a 

minimum the jury should have been instructed that the police 

destroyed or lost the evidence from the [SUV] and the [gas 

station] video, and failed to follow procedure which would have 

produced police cam footage of the events in this case. The jury 

should be instructed that it may rely on this information to draw 

inferences against the prosecution’s case, including but not 

6 Leverette argued in his opening brief that any failure by 

his trial counsel to request these instructions was ineffective 

assistance of counsel. In his reply brief, however, Leverette 

withdrew this argument and argued only that the trial court 

erred in failing to give the instruction his trial counsel requested 

on failure to preserve the SUV. 
19

limited to who fired first, who shot Seli, and whether the officers 

were telling the truth in their description of the encounter.” 

1. The Court Did Not State It Would Give an 

Instruction on Destruction of Evidence

Leverette’s first argument is that the trial court erred in 

not giving these instructions because a judge hearing pretrial 

matters and the judge who presided over the trial both “indicated 

that they would give jury instructions on the prosecution’s 

destruction of evidence . . . .” But that’s not what happened.

Leverette is correct that the issue whether the court would 

instruct the jury on destruction of evidence arose several times 

before and during trial. But no judge ever ruled he (the pretrial 

judge) or she (the trial judge) would give such an instruction. In 

April 2015 Leverette filed a motion to dismiss based on the 

prosecution’s failure to preserve the SUV. The court denied the 

motion to dismiss. After granting Leverette’s request that the 

court review a Santa Monica Police Department manual on 

preserving and maintaining evidence, the court reviewed the 

manual and affirmed its order denying Leverette’s motion to 

dismiss. In denying the motion again, the court stated: “I’m 

leaving the door open for the defense in terms of perhaps an 

instruction they certainly would be able to make. They are not 

precluded from making reference to the fact that . . . the car was 

not preserved for them to conduct their own analysis. And the 

wording of that remains to be seen.” The court did not say that it 

would give an instruction on destruction of evidence, only that it 

was not precluding such an instruction and that the court would 

have to review the proposed language of the instruction. 
20

Leverette concedes as much, stating in his reply brief only that 

the pretrial judge said “he would be open to such an instruction.” 

During the trial, counsel discussed the jury instructions 

with the court. The trial court asked counsel for Leverette if he 

wanted to request a “pinpoint instruction,” and counsel stated he 

wanted an instruction on destruction or loss of evidence. The 

court stated it had reviewed the record regarding Leverette’s 

motion to dismiss because the court “thought it was kind of odd 

that a court would order that a jury instruction would be given 

when that court wasn’t the trial court.” The trial court observed 

that the pretrial court made a finding Leverette would be allowed 

to refer to the police department’s disposal, after only five days, of 

the SUV, but “it did not say [Leverette] was going to get a jury 

instruction that they destroyed the evidence.” When counsel for 

Leverette stated he “understood it to be . . . a jury instruction,” 

the trial court stated, “Your understanding is misplaced.” The 

trial court did not say that it would give an instruction on 

destruction of evidence, only that Leverette could submit one. 

Leverette concedes as much, stating in his reply brief only that 

the trial judge “indicated that the defense should suggest such an 

instruction.” 

Counsel for Leverette ultimately submitted the following 

proposed instruction: “During the trial you received evidence 

that the Santa Monica Police Department did not preserve the 

[SUV] as evidence, but instead released it before the defense had 

an opportunity to inspect it. You may consider this fact when 

evaluating the truthfulness of the prosecution’s allegations in 

this case.” The trial court denied the request to give the 

instruction, ruling no one testified the Santa Monica Police 

Department had violated its policy on preserving evidence, 
21

although the court stated Leverette could “argue that, because 

the . . . Santa Monica Police Department determined or decided 

to give the car back to [the rental company], that his expert was 

not allowed to go ahead and do their own evaluation of the car. 

At this point, I don’t see any evidence that it was in violation of 

policy, because nobody got up here and testified to that.” 

2. Leverette Did Not Show He Was Entitled to His 

Proposed Instruction on Failure To Preserve the 

SUV, and the Trial Court Did Not Have a Sua 

Sponte Duty To Instruct on Failure To Preserve 

the Video or Dash Cam Recordings

Under California v. Trombetta (1984) 467 U.S. 479

[104 S.Ct. 2528, 81 L.Ed.2d 413] and Arizona v. Youngblood

(1988) 488 U.S. 51, 57 [109 S.Ct. 333, 102 L.Ed.2d 281], “law 

enforcement agents have a constitutional duty to preserve 

evidence, but that duty is limited to ‘evidence that might be 

expected to play a significant role in the suspect’s defense.’ 

[Citation.] To reach this standard of ‘constitutional materiality,’

the ‘evidence must both possess an exculpatory value that was 

apparent before [it] was destroyed, and be of such a nature that 

the defendant would be unable to obtain comparable evidence by 

other reasonably available means.’ [Citations.] [¶] The 

defendant bears a higher burden to establish a constitutional 

violation when ‘no more can be said’ of the evidence ‘than that it 

could have been subjected to tests, the results of which might 

have exonerated the defendant.’ [Citation.] In such cases, 

‘unless a criminal defendant can show bad faith on the part of the 

police, failure to preserve potentially useful evidence does not 

constitute a denial of due process of law.’ [Citations.] The 
22

assessment of bad faith ‘must necessarily turn on the police’s 

knowledge of the exculpatory value of the evidence at the time it 

was lost or destroyed.’” (People v. Flores (2020) 9 Cal.5th 371, 

394; see People v. Carrasco (2014) 59 Cal.4th 924, 962.) 

If a trial court determines there has been a due process 

violation, the court has “‘a large measure of discretion in 

determining the appropriate sanction that should be imposed 

because of the destruction of discoverable records and evidence.’” 

(People v. Yeoman (2003) 31 Cal.4th 93, 126; see People v. Jenkins

(2000) 22 Cal.4th 900, 951 [“courts have broad discretion in 

determining the appropriate sanction for discovery abuse”].) In 

the absence of any due process violation, however, the trial court 

does not have to give a jury instruction on the destruction of 

evidence. (People v. Flores, supra, 9 Cal.5th at p. 397; see People 

v. Cook (2007) 40 Cal.4th 1334, 1351 [trial court does not have to 

give an instruction allowing the jury “to draw inferences more 

favorable to the defense, based on the prosecution’s failure to 

preserve . . . evidence,” where “no bad faith failure to preserve the 

evidence [is] shown”]; People v. Cooper (1991) 53 Cal.3d 771, 811 

[“[a]lthough an adverse instruction may be a proper response to a 

due process violation,” where there is “no such violation,” the 

trial court is “not required to impose any sanction, including jury 

instructions”].) 

The trial court did not abuse its discretion in denying 

Leverette’s request for a destruction of evidence instruction 

relating to the SUV. Leverette does not explain whether or how 

the return of the SUV to the rental company, even if it violated 

department policy, deprived him of exculpatory evidence. He 

does state that the “car was not available for analysis by the 

defense” and that an “examiner could look for bullet impacts, 
23

evidence of the direction of bullets, the bullet holes,” but he does 

not explain how such an examination might have exonerated or 

otherwise helped him. Leverette also states that the SUV “had 

bullet holes and bullets in it that were important to a 

reconstruction of the events in this case,” but he does not argue or 

explain how examining the bullets and bullet holes would have 

helped his defense. And he asserts he “disputed the very 

question raised by the omitted instruction—whether the 

destroyed evidence would vindicate him”—but he does not say 

how that evidence would have helped vindicate him. As the 

People correctly state, “There was no requirement that law 

enforcement maintain possession of the SUV indefinitely and no 

reason to believe returning the SUV had destroyed any 

potentially exculpatory evidence.” Therefore, Leverette had to 

show the police acted in bad faith. (See People v. Flores, supra,

9 Cal.5th at p. 394; People v. Carrasco, supra, 59 Cal.4th at 

p. 962; People v. Farnam (2002) 28 Cal.4th 107, 166.)

He did not. The Santa Monica Police Department 

impounded the SUV as evidence. Representatives from the 

rental company went to the police station to assist the 

criminologist from the crime laboratory in removing the bullet 

from the rear panel of the SUV and to make sure that, when he 

removed the bullet, he caused the SUV as little damage as 

possible. The police returned the SUV after five days because the 

police had completed their ballistics examination, the rental 

company wanted its car back, and the city did not want to incur 

liability for keeping it any longer.

7 (See People v. Carrasco, 

7 The department had a policy that property booked in 

evidence and stored in the property room could only be released 

by property unit staff upon written authorization from the 
24

supra, 59 Cal.4th at p. 962 [“failure of the police to remove” a can 

of hair spray with the defendant’s fingerprints on it from a car 

“before the car was returned to its owner did not constitute a 

violation of defendant’s right to due process of law”].) Because 

Leverette has not established a due process violation relating to

the return of the SUV, he has not shown he was entitled to his 

proposed instruction on destruction of evidence. (See People v. 

Flores, supra, 9 Cal.5th at p. 397; People v. Cooper, supra, 

53 Cal.3d at p. 811.)

Finally, trial counsel for Leverette did not request an 

adverse inference instruction on destroying or failing to preserve 

the gas station video or the dashboard camera recordings, and 

Leverette does not argue on appeal the court had a sua sponte 

duty to give such an instruction.

8 (See People v. Medina (1990) 

51 Cal.3d 870, 894.) Leverette does assert that, because “the trial 

court refused to give the narrower instruction, it would have been 

futile for trial counsel to submit an even broader instruction that 

covered the [gas station] video and the police cams as well.” The 

record, however, does not support that assertion.

criminal investigations unit or the city attorney’s office, but that 

policy did not apply to the release of vehicles. 

8 Leverette argued in his opening brief the trial court had a 

sua sponte duty to give an instruction on destruction of evidence, 

but withdrew that argument in his reply brief. In particular, 

Leverette stated in his reply brief that his argument “an 

instruction should be given sua sponte” was “hereby withdrawn 

and should not be considered by the Court” and that the People’s 

forfeiture argument “regarding a sua sponte duty was rendered 

irrelevant by trial counsel’s submission of and the trial court’s 

denial of the admonition.” 
25

In discussing whether to give an instruction on destroying 

or failing to preserve evidence, the court and counsel addressed 

all three pieces of evidence separately—the SUV, the gas station 

video, and the dashboard cameras. At one point the trial court 

even asked counsel for Leverette to bring the proposed pinpoint 

instruction regarding the destruction of the gas station video, and 

counsel said he would bring it the following Monday. In addition, 

the issues concerning the three pieces of evidence were different: 

The SUV issue had to do with returning the vehicle to the rental 

company at its request, the gas station issue involved a video 

recording of the incident from across the street that may have 

been damaged or lost, and the dashboard camara issue concerned 

the functionality and capability of the recording instruments on 

the three officers’ patrol cars.9 There was no reason to think the 

court would make the same ruling on three different instructions 

9 Indeed, with respect to the dashboard cameras, Leverette 

argues not that the prosecution destroyed or failed to preserve 

any evidence, but that the police officers failed to create the 

evidence in the first place. He complains that Officer 

McInerney’s dashboard camera, though recording, did not 

capture the entire incident because, as discussed, he parked his 

patrol car at an angle for safety reasons.* Leverette also claimed 

that Sergeant Hernandez, who did not turn on his camera 

because he was not the officer taking the enforcement action and 

went to the scene only to observe Officer McInerney, and that 

Officer Seli, who did not turn on his camera because he was 

parked around the block, violated department policy by not 

turning on their dashboard cameras. 

* But it did record some of the incident, including Officer Seli’s 

flashlight beam as he approached the SUV, the movement of the 

SUV when Leverette jumped out, and Officer Seli mouthing 

some words and retreating after he was shot. 
26

concerning these three very different requests for an adverseinference jury instruction. (See People v. Farrow (1993) 

13 Cal.App.4th 1606, 1618, fn. 14 [defendant’s contention “it 

would have been futile for him to have requested instructions” 

was “plainly contradicted by the record”]; People v. Garcia (1986) 

178 Cal.App.3d 814, 823 [“There was no reason for defendant to 

believe the court would have refused a limiting instruction had 

he suggested one, as the court had earlier invited him to do.”].)

D. The Two Prior Prison Term Enhancements Must Be 

Stricken

When the trial court sentenced Leverette in August 2018, 

section 667.5, subdivision (b), required the court to impose a oneyear sentence enhancement for each true finding “the defendant 

had served a separate prior prison term and had not remained 

free of custody for at least five years.” (People v. Jennings (2019) 

42 Cal.App.5th 664, 681.) Senate Bill No. 136, which was 

enacted on October 8, 2019 and became effective January 1, 2020, 

amended section 667.5, subdivision (b), by limiting the 

applicability of the one-year prior prison term enhancement to 

those defendants who served a prior prison sentence for a 

sexually violent offense, as defined in Welfare and Institutions

Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1; see 

People v. Griffin (2020) 57 Cal.App.5th 1088, 1092; People v. 

Shaw (2020) 56 Cal.App.5th 582, 588.)

The one-year terms the trial court imposed under section 

667.5, subdivision (b), were for prior prison terms Leverette 

served for non-sexually violent offenses. As the People concede,

because Leverette’s case was not final when the new law became 

effective, the new law applies to him, and the two one-year 
27

enhancements under section 667.5, subdivision (b), must be 

stricken. (See People v. Shaw, supra, 56 Cal.App.5th at p. 588; 

People v. Hernandez (2020) 55 Cal.App.5th 942, 947.)

DISPOSITION

Two of Leverette’s three convictions for attempted murder 

are reversed, and the two one-year enhancements under section 

667.5, subdivision (b), are stricken. In all other respects, the 

judgment is affirmed. The trial court is directed to resentence 

Leverette on his remaining convictions and to send a new 

abstract of judgment to the Department of Corrections and 

Rehabilitation.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.