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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.)
2
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
3
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
4
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
5
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
6
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
7
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
8
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.
9