People v. Leverette CA2/7 ( 2021 )

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, B292120
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA073833-01)
v.
DANTE LEVERETTE,
Defendant and Appellant.
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.
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.
2
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
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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.
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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
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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.”
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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
7
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
8
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.
9
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
10
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”].)
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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.
12
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
13
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
14
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.
15
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
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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
17
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.
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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.
19
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,
20
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
21
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,
22
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
23
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.”
24
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.
25
concerning these three very different requests for an adverse-
inference 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 one-
year 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
26
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.
27