People v. Lee CA2/2

Opinion

Filed 8/28/26 P. v. Lee CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B344133

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24AVCF01578)

v.

BRANDON LAVELLE LEE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed with directions.

Michael Reed, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Zachary John Crvarich, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

Defendant Brandon Lavelle Lee appeals from his judgment of conviction, arguing substantial evidence does not support a finding that his 2003 conviction for negligent discharge of a firearm qualified as a strike within the meaning of the “Three Strikes” law (Pen. Code,1 §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). We affirm the judgment but order the superior court to modify the abstract of judgment to correct clerical errors.

BACKGROUND2

An amended information alleged Lee committed the following: murder (§ 187, subd. (a); count 1), with a personal knife use enhancement (§ 12022, subd. (b)(1)); arson of an inhabited structure (§ 451, subd. (b); count 2); and arson of the property of another (§ 451, subd. (d); count 3). The information also alleged Lee had suffered two prior strike convictions, one in 2022 for voluntary manslaughter (§ 192, subd. (a)) and one in 2003 for negligent discharge of a firearm (§ 246.3).

In January 2025, a jury acquitted Lee of murder but convicted him of the lesser included offense of voluntary manslaughter and found true as to that count the personal knife use allegation. The jury also convicted Lee of the two counts of arson. In bifurcated proceedings, the jury found true the two prior convictions.

Outside the presence of the jury, the trial court informed counsel it was required to determine whether the prior convictions qualified as strike offenses. The court noted that although the 2022 conviction indisputably qualified as a strike,

1 Undesignated statutory references are to the Penal Code. 2 Because the facts of Lee’s underlying offenses are not relevant to the issues presented in this appeal, we omit them. (See People v. Mendez (2021) 69 Cal.App.5th 347, 351, fn. 2.)

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the 2003 conviction would be a strike only if Lee personally used a firearm in the commission of the offense. The prosecutor acknowledged the issue and informed the court that the court file contained a certified plea transcript of the 2003 conviction. According to the prosecutor, the transcript showed that when Lee pled no contest, he was advised the charge he was pleading to was a strike. The court told counsel to review relevant case law and then present any argument or evidence they deemed appropriate.

Before Lee’s sentencing hearing, he filed a motion pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, wherein he conceded the 2003 conviction qualified as a strike and asked the court to dismiss it. The motion also described the circumstances surrounding the offense: “In the prior offense of 2003, [Lee] was found guilty of firing 4 shots from a firearm within his home, two going through a wall into a bathroom, and two going through a wall into his mother’s bedroom. [Lee] then went outside and fired the gun one more time . . . . The shooting was obviously negligent by the 18 year old [Lee], but not violent.”

The trial court held Lee’s sentencing hearing on February 4, 2025. After receiving victim impact statements, the court denied the Romero motion and sentenced Lee as a third strike offender to an aggregate term of 51 years to life.

Lee timely appealed.

DISCUSSION

I. The Trial Court Did Not Err in Sentencing Lee as a Third Strike Offender Lee argues there is insufficient evidence his 2003 conviction for negligent discharge of a firearm qualified as a strike, and the trial court thus erroneously sentenced him as a third strike offender. We reject this contention. Lee forfeited the

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argument, and, in any event, Lee’s record of conviction established the 2003 conviction was a strike.

A. Overview of the Three Strikes Law and Negligent Discharge of a Firearm The Three Strikes law provides for enhanced sentences when a convicted defendant has prior strike convictions. (§ 667, subd. (e), § 1170.12, subd. (c).) “To qualify as a ‘strike,’ the prior conviction must be a ‘violent felony’ as defined in section 667.5, subdivision (c), or a ‘serious felony’ as defined in section 1192.7.” (People v. Golde (2008) 163 Cal.App.4th 101, 111 (Golde).)

Relevant here, a violation of section 246.3 for negligent discharge of a firearm “is not a felony specifically listed in section 667.5 or section 1192.7.” (Golde, supra, 163 Cal.App.4th at p. 111.) However, it can be a serious felony, and thus a strike, if the defendant also personally used a firearm during the incident. (Id. at pp. 111–112, citing § 1192.7, subd. (c)(8) & (23).) Because it is possible to be convicted under section 246.3 without personally using a firearm, e.g., as an aider and abettor, the bare fact that a defendant was convicted under section 246.3 is insufficient to show he has a strike prior. (See Golde, at pp. 112– 113.) Instead, the defendant must have admitted the prior section 246.3 conviction was a serious felony, or there must be evidence he personally used a firearm when he committed the offense. (See Golde, at p. 113.)

B. Lee Forfeited the Argument That the 2003 Conviction Was Not a Strike “[I]n general, appellants forfeit arguments not raised in the trial court . . . .” (Woodworth v. Loma Linda University Medical Center (2023) 93 Cal.App.5th 1038, 1057.) Fairness is at the heart of this rule. (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) “Appellate courts are loath to reverse a judgment on grounds that . . . the trial court

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did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. [Citation.] Bait and switch on appeal . . . wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.” (Ibid.; see also People v. de Soto (1997) 54 Cal.App.4th 1, 10 [“Having raised no specific objections at the time of sentencing, the defendant did not give the trial court a genuine opportunity to correct any errors it may have made. As such, he waived his right to raise the claims on appeal”].)

Here, the record shows Lee forfeited any dispute that the 2003 conviction was a strike. The information notified Lee the People alleged the 2003 conviction was a strike. While the jury was deliberating as to whether Lee had been convicted in 2003, the trial court informed the prosecutor and Lee’s counsel that the conviction would only qualify as a strike if Lee personally used a firearm in its commission and invited the parties to submit evidence and present argument on the issue. Instead, Lee filed a Romero motion conceding the 2003 conviction was a strike and asking the court to dismiss it in the furtherance of justice. Under these circumstances, we conclude Lee did not adequately preserve the issue for appellate review.

It is true, as Lee points out, “[t]he contention that a decision is not supported by substantial evidence generally is not waived or forfeited by failure to object below.” (Beverly Hills Unified School Dist. v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627, 674.) But Lee did not merely fail to object. Rather, he affirmatively acknowledged the 2003 conviction was a strike in order to invoke the trial court’s power under section 1385 and Romero to strike the prior conviction. The cases on which Lee relies for a contrary

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conclusion are inapposite as the defendants in those cases did not make the sort of concession Lee made here. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 789–790, 795 [the defendant never conceded there was evidence he committed securities-related crimes]; People v. Butler (2003) 31 Cal.4th 1119, 1126–1129 [the defendant never conceded there was evidence of probable cause to support involuntary HIV testing order]; People v. Rodriguez (1998) 17 Cal.4th 253, 262 [the defendant never conceded prior conviction qualified as a strike], superseded by statute on another ground, as stated in People v. James (2001) 91 Cal.App.4th 1147, 1149.)

C. The Record of Lee’s 2003 Conviction Established It Was a Strike Even if Lee did not forfeit his claim that the 2003 conviction was not a strike, the record of conviction established it was one.

“ ‘Where . . . the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.’ ” (People v. Roberts (2011) 195 Cal.App.4th 1106, 1116.) The record of conviction includes transcripts of a defendant’s plea. (Id. at p. 1120.) “ ‘[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction . . . .’ ” (People v. Delgado (2008) 43 Cal.4th 1059, 1066, superseded by statute on another ground, as stated in People v. Frahs (2018) 27 Cal.App.5th 784, 795.)

Here, the record of conviction shows Lee pled no contest to negligent discharge of a firearm in 2003. In taking Lee’s plea, the prosecutor apprised Lee as follows: “This conviction will act as a prior. That means if you have a subsequent case, the fact of this conviction could result in a denial of probation or a longer

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sentence in the subsequent case. [¶] In addition, . . . this charge is a strike. That means that if you have a subsequent felony conviction, the fact of this conviction will result in the sentence in that subsequent case being doubled. [¶] Do you understand that?” (Italics added.) Lee responded: “Yes, I do.” Later, Lee’s attorney and the prosecutor stipulated to a factual basis of the plea. Because Lee unequivocally acknowledged his conviction for negligent discharge of a firearm counted as a strike, and it could only be a strike if he personally used a firearm (Golde, supra, 163 Cal.App.4th at pp. 111–112), the record of conviction shows the 2003 conviction qualified as a strike. (See People v. Thomas (1986) 41 Cal.3d 837, 841–845 [the defendant’s admission he was convicted of a serious felony (burglary) within the meaning of § 667 and § 1192.7, conceded issue that he committed burglary in a manner rendering it a “serious felony” under those sections].)

Lee’s arguments do not support a contrary conclusion.

First, he argues the 2003 plea transcript cannot be used to establish his 2003 conviction was a strike because the trial court did not expressly address it. We are not persuaded. As explained in part I.B., ante, Lee’s Romero motion conceded the 2003 conviction was a strike. In light of this concession, there was no reason for the court to expressly address whether the transcript supported a finding that the 2003 conviction was a strike. Having mooted the need for the court to consider the plea transcript, Lee may not now argue on appeal the transcript cannot be considered to resolve his claim of insufficiency of the evidence. (Cf. Kessler v. Gray (1978) 77 Cal.App.3d 284, 290 [“ ‘Under the doctrine of invited error, a party may not object to the sufficiency of the evidence to support a finding against him when the lack is the result of improper exclusion of evidence at his own instance’ ”].)

Second, Lee argues the 2003 plea transcript does not support a finding that the conviction was a strike because it

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shows he admitted only to the bare elements of section 246.3. Not so. In his plea colloquy, he also admitted he was pleading no contest to a charge that was a strike.

Finally, Lee argues the 2003 trial court’s declaration that the section 246.3 conviction was a strike was based on an incorrect conclusion of law which was not settled until 2008 when the Golde court clarified a section 246.3 conviction can only count as a strike if the defendant personally used a firearm. The argument is not well taken. Even prior to 2008 and Lee’s conviction, appellate courts had indicated a section 246.3 conviction can only qualify as a strike where the defendant personally used a firearm. (See People v. Leslie (1996) 47 Cal.App.4th 198, 201 [“In order to qualify as a strike, the three strikes law requires that the prior offense be a serious felony as defined in section 1192.7, subdivision (c). [Citation.] Section 1192.7 does not specifically address the crime of the grossly negligent discharge of a firearm. However, . . . subdivision (c)(8) includes as a serious felony ‘. . . any felony in which the defendant personally uses a firearm.’ ”].) II. We Reject Lee’s Claim for Ineffective Assistance of Counsel Lee argues to the extent the trial court found the 2003 conviction qualified as a strike by relying on the statements in his Romero motion that he personally discharged a firearm in the commission of the 2003 offense, his trial counsel rendered ineffective assistance of counsel by failing to object to the court improperly relying on those facts.

The record, however, does not show the trial court used the Romero motion’s description of the 2003 offense to find the conviction qualified as a strike. The court merely used the description to detail the relief Lee was asking for in his Romero motion and to confirm that of Lee’s two strikes, Lee was focused

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on having the 2003 conviction dismissed as that was the older of the two convictions. Accordingly, Lee’s claim that his counsel rendered ineffective assistance by failing to object to the court using information in the Romero motion for an improper purpose has no merit. III. The Abstract of Judgment Must Be Corrected Finally, we note there are clerical errors in the abstract of judgment. Section 1 incorrectly indicates that for count 3, Lee was convicted under section 451, subdivision (b) for the crime of arson of an inhabited structure or property. For that count, the jury actually convicted Lee of arson of property of another pursuant to section 451, subdivision (d). We will direct the superior court to correct both the code section and the description of the crime. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The judgment is affirmed. The superior court is directed to amend the abstract of judgment to reflect that Lee was convicted of arson of property of another pursuant to section 451, subdivision (d) for count 3. The superior court is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

RICHARDSON, J.

WE CONCUR:

CHAVEZ, Acting P. J.

GOORVITCH, J.