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Filed 5/21/24 P. v. Lankford CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. DANTE MAURICE LANKFORD, Defendant and Appellant. E081026 (Super.Ct.No s . RIF1803987 , RIF1804692)
OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed. Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff an d Respondent.2 INTRODUCTION Defendant and appellant Dante Maurice Lankford was convicted by a jury of 22 criminal offenses as a result of multiple incidents involving his wife. He now appeals from his second sentencing, which reduced his original term of 4 5 years in state prison to 37 years in prison. He contends the trial court erred by refusing to dismiss various sentencing enhancements in accordance with Penal Code 1 section 1385, since it failed to
find that dismissal of the enhancements would endanger public safety. We find no error
and affirm.
PROCEDURAL BACKGROUND A jury convicted defendant of 22 offenses , includ ing, among others, making criminal threats (§ 422), assault with a firearm (§ 245, subd. (a)(2)), being a felon in possession of a firearm (§ 29800, subd. (a)(1)), stalking (§ 646.9, subd. (b)), inflicting corporal injury on a spouse (§ 273.5, subd. (f)(2)) , d issuading a witness by use of force (§ 136.1, subd. (c)(1)) , violating a protective order (§ 166, subd. (c)(1)), and robbery (§ 211). The jury also found true that defendant personally inflicted great bodily injury (GBI) on the victim (§ 12022.7, subd. (e)) during the commission of inflicting corporal injury (count 1), and he personally used a firearm (§ 12022.5, subd. (a)) , in th e commission of making criminal threats (count 2)

. ( People v. Lankford (Feb. 7, 2022, E072649) [nonpub. opn.] ( Lankford ) .) Defendan t admitted he had a prior serious felony conviction (§ 667, subd. (a)), a prior strike conviction (§§ 667, subds. (c) and ( e)(1),

1 All further statutory references will be to the Penal Code, unless otherwise indicated.3

1170.12, subd. (c)(1)), and a prison prior (§ 667.5, subd. (b ))

. ( Lankford , at p. 12.) The
trial court sentenced him to a total term of 45 years in state prison. Defendant appealed , raising numerous claims. Subsequently , o n February 7, 2022, t his court ordered the prison prior and the incarceration costs stricken, and we remanded the matter for resentencing in accordance with recently enacted amendments to the sentencing statutes. In all other respects, we affirmed the judgment. ( Lankford ,

s upra , E072649, at pp. 44

- 45 .) The People filed a sentencing brief stating that defendant should be resentenced to
the middle term on count 2 and the attached enhancement and that the court should strike
the section 667.5, subdivision (b) , prison prior , pu rsuant to a recent amendment to the statute, and also strike the incarceration costs. Defendant submitted a sentencing brief
and asked the court to strike his prior strike conviction, as well as all of the enhancements, and order the sentences to run conc urrent, which would result in a total

term of seven years. On March 9, 2023, the trial court held a sentencing hearing. The prosecutor argued for the maximum sentence , asserting that defendant had been committing acts of domestic violence for years upon his former girlfriend and then his wife. The prosecutor described his cruel acts and argued, “ That is the man before the C ourt. That is the abuser who has gone out in to society and abused his partners time and time again.” She further argued that he was “rightfully deserving for his conduct for the 22 counts that he has been4

convicted of [,] of the maximum sentence that the law provides to make sure that the public rem ains safe.”
The court first denied defendant’s request to strike the prior strike conviction, noting that , in the instant case, there were “just too many offenses” and “[t]oo many of them [were] violent in nature.” The court then ci ted defendant’s extensive criminal history , which spanned from 2003 to 2017 , and described it as “a series of crimes, many of them violent in nature, of increasing severity.” 2 The court stated that it completely agreed with the prosecutor’s comments during her argument for the maximum sentence

. The court likewise denied defendant’s request to dism iss the enhancements

. With regard
to the section 120 22.5, subd ivision (a) , enhancement, it specifically stated , “ [T] he Court
is mindful of all of its discretion

. ” However, the court concluded, “I ’ m declining to exercise it given the nature of the circumstances that surround this case.” With regard to the section 667, subdivision (a) , enhancement, it stated, “ [T] he Court is mindful that now under 1385, the Court does have discretion to strike that. For the reasons that I articulated during the Romero 3 analysis, I am declining that invitation. The defendant, as I said, when you look at everything, appears to be a poster child for recidivist statute. ” Addressing defendant directly , t he court added, “I’m not trying to be disrespectful to you,

2 Defendant’s prior crimes included convictions for carrying a concealed firearm (former § 12025, subd. (a)), battery on a spouse (§ 243, subd. (e)(1)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and multiple convictions of inflicting corporal inj ury on a spouse (§ 273.5, subd. (a)).

3 People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497.5

sir, but it is rare that you see somebody with this many crimes committed in a single charging document.” The court struck the incarceration fees and the prison prior, and it reduced the

upper
- term sentenc es to middle

- term sentences, which resulted in a reduced aggregate term of 37 years in state prison. After the court pronoun ced judgment , defense counsel argued that, since the court did not grant the request to strike the prior strike, it would be
in the interest s of justice for the court to strike the section 667 “nickel prior.” The court responded : “ The law now stands for the proposition that I ’ m supposed to consider the aggravation of multiple enhancements and I should err on the side of only one and if the use of enhancements would cause a sentence greater than 20 years, I’m supposed to consider not imposing the enhancement.” The court then stated, “But in this particular case, given the defendant’s criminal history, given his strike prior, given th e multiplicity of events here that happened over months, the Court does find that he is a danger to society; and exercising that discretion, does represent a danger to society. And for that reason, the Court is not limiting the application of

. . . the enhancements. ”
DISCUSSION The Court Properly Exercised its Discretion When it Declined to Dismiss Defendant’s Sentencing Enhancements
Defendant states that his sentenc e included a firearm enhancement, a GBI enhancement, and a prior serious felony enha ncement , and he argues that the trial court erred in failing to dismiss two of the three enhancements, pursuant to a recent amend ment6

to section 13 85. He claims that it is not clear whether the court was aware of the recent
amendment or that it understood its discretion to dismiss the enhancements under the
amendment. He then specifically contends the court erred by not dismissing two of the
three enhancement s , as it was required to do so under sectio n 1385, subdivision (c) , since
it failed to find that dismissing the m would endanger public safety

. Thus, defendant claims his sentence should be vacated and the matter remanded
with directions for the trial court to either dismiss two of the enhancements or, in the alternative, de termin e whether dismissal would endanger public safety. The People argue
the court did determin e that defendant posed a danger to society , and therefore it properly denied his request to strike the enhancements. We agree with the People.
A. Relevant Law “Effective January 1, 2022, Senate Bill No. 81 (2021

- 2022 Reg. Sess.) amended section 1385 to include subdivision (c). [Citation.] Section 1385(c)(1) provides that

‘ [n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. ’” ( People v

. Mendoza (2023) 88 Cal.App.5 th 287, 295 ( Mendoza ); § 1385(c)(1 ) .) Section 1385, sub division (c)(2) , provides: “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances
in subparagraphs (A) to (I) are presen t. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court7

finds that dismissal of the enhancement would endanger public safety. ” One of the mitigating circumstances is that “ [m] ultiple enhancements are alleged in a single case. ” (§ 1385, subd. (c)(2)(B).) Another one is that “[t] he application of an enhancement could result in a sentence of over 20 years. ” (§ 1385, subd. (c)(2)(C).) Both of these
circumstances are applicable in this case. “In general, we review for abuse of discretion the trial court ’ s decision not to strike a sentence enhancement under section 1385, subdivision (a). ” ( Mendoza , supra , 88 Cal.App. 5th at p. 298.) Similarly, abuse of discretion is th e proper standard of review for
the trial court’s determination that dismissal of an enhancement would endanger public safety. ( Ibid .)
B. The Court Found That Dismissal of the Enhancements Would Endanger Public Safety At the outset, we note that, c ontrary to defendant’s claim, the record clearly
reflects the court ’s aware ness of the recent amendment to section 1385. Regarding the section 667, subdivision (a) , enhancement, the court stated, “[T]he Court is mindful that now under 1385, the Court does have discretion to strike that.” It further explained, “The law now stands for the proposition that I’m supposed to consider the aggravation of multiple enhancements and I should err on the side of only one and if the use of enhancements would cause a sentence greater than 20 years, I’m supposed to consider not imposing the enhancement.” Th e court ’s comment was clearly refer encing section 1385,
subdivision s (c)(2)(B) , and (c)(2)(C) , and shows that the court understood its di scretion.8

Furthermore, defendant’s entire argument is based on the claim that the trial court
did not find that dismissing the sentence enhancements would endanger public safety. However, the record belies t his claim

. The court first denied defendant’s Romero request to strike his prior strike conviction. In doing so, it referred to hi s criminal history, which
dated back to 2003 , and enumerated his prior convictions , not ing that they were “a series of crimes, many of t hem violent in nature, of increasing severity. ” The court also
reference d the instant case and found that there were “ just too many offenses” and that many of them were “ violent in nature

. ” The court then proceeded to decline to exercise its discretion under section 1385 to dismiss the section 667, subdivision (a) , enhancement . The court stated , “F or the reasons that I articulated during the Romero analysis , I am declining that invitation

. ” The court further stat ed that “wh en you look at everything, [defendant] appears to be a poster child for recidivist statute [ sic ] .” The court
remarked that it was rare to “ see somebody with this many crimes committed in a single charging document” and stat ed that “[t]his case pre sents first, last, and foremost like a domestic violence fact pattern. ” With regard to the section 12022.5, subdivision (a) , firearm enhancement, the court stated that it was “mindful of all of its discretion” but it

was “ declin ing to exercise it given t h e nature of the circumstances that surround this
case.” The court went on to refer to the mitigating circumstances in section 1385,
subd ivisions (c)(2)(B) and (c)(2) (C ) , in further explain ing its decision

. The court expressly stated that “given the defendant’s criminal history, given his strike prior, given the multiplicity of events here that happened over months, the Court does find that he is a9

danger to society ; and exercising that discretion , does represent a danger to society

. ” (It alics added.) Thus , the court properly declined to exercise it s discretion to dismiss the enhancements, f

inding that dismissal of the enhancements would endanger public safety. (§ 1385 , subd. (c)(2).) Moreover , i n light of the court’s consideration of defendant’s
extensive criminal history and the circumstances of the current offenses, we cannot say
its determination that dismissal of the enhancement s would endanger public safety was an abuse of discretion. In his reply brief, defendant aptly acknowledges that the court found he was a danger to society when explaining why it was “not limiting the application

. . . of the
enhancements. ” H e nonetheless cites to his age and points out that, if the court had
dis missed the five

- year enhancement and thereby reduc ed his sentence to 32 years , he
would be in his late 60’s or early 70’s when released, and the record does not reflect that
the court considered whether his release at that age would pose a risk of serious danger to society ; rather , it found he posed a current danger to society

. However , we observe that

s ection 1385 , subdivision (c)(2) , does not require the trial court to consider any particular factors in determining whether dismissal w ould endang er public safety. ( Mendoza , supra , 88 Cal.App.5 th at p. 299 ; § 1385, subd. (c)(2) .) T o the extent defendant is maintaining his claim that the court did not ma ke a proper finding that the dismissal of
the enhancements would endanger public safety , we disagree , in view of the court’s clear finding that he was a danger to society . (See ante. ) Further, given defendant’s recidivist10

history, as outlined by the trial court, th e court had every reason to believe that defendant posed a danger to society now and in the future. In light of defendant’s extensive criminal history and the number and violent nature of the offenses in the current case, w e conclude that the trial court d id not abuse its
discretion in declining to dismiss the sentencing enhancements

. DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.
We concur:

RAMIREZ P . J.

MILLER J.