Opinion
B295060
03-17-2020
THE PEOPLE, Plaintiff and Respondent, v. BRANDON LEE COLBERT, Defendant and Appellant.
Mary Jo Strnad, 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, Assistant Attorney General, Zee Rodriguez, Corey J. Robins, and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA066931) APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa Mangay Chung, Judge. Affirmed. Mary Jo Strnad, 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, Assistant Attorney General, Zee Rodriguez, Corey J. Robins, and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Brandon Lee Colbert of one count of willful, deliberate, and premediated attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1), two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 4 & 5), one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)), and one count of possession of ammunition (§ 30305, subd. (a)(1)). As to counts 1 and 4, the jury found true the great bodily injury enhancement (§ 12022.7). As to count 1, the jury also found true various firearm enhancements (§ 12022.53, subds. (b)-(d)). As to counts 4 and 5, the jury found true one firearm enhancement. (§ 12022.5, subd. (a).) (People v. Colbert (May 8, 2018, B276969) [nonpub. opn.] (Colbert I).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was acquitted of count 2 charging attempted murder. Counts 3 (attempted murder), 6 (assault with a semiautomatic firearm), and 9 (mayhem) were dismissed.
"Defendant was sentenced to a determinate prison sentence of 22 years eight months and an indeterminate prison sentence of life plus 25 years to life." (Colbert I, supra, B276969, p. 2.)
Defendant appealed, and on May 8, 2018, we affirmed the judgment. However, we also held that defendant was entitled to a new sentencing hearing at which the trial court could consider whether to strike the firearm enhancements pursuant to the discretion newly conferred by sections 12022.5 and 12022.53. (Colbert I, supra, B276969, pp. 3, 18-19.)
At the resentencing hearing, the trial court declined to strike any of the firearm enhancements.
Defendant appeals, arguing that the trial court abused its discretion when it denied his motion to strike the enhancements.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background
As set forth in Colbert I, following an altercation at a bar, defendant shot Anthony Gabelman (Gabelman) in the stomach. Gabelman suffered a life-threatening injury. (Colbert I, supra, B276969, pp. 3-4.)
II. Prior appeal
Defendant appealed his conviction, and we affirmed in part and reversed and remanded the matter in part. Specifically, we held: "The sentences for the firearm enhancements are reversed. The trial court is directed to exercise its discretion under section 12022.53, subdivision (h). If the trial court elects not to strike or dismiss the enhancements, then the trial court is directed to resentence defendant for the firearm enhancement(s). (§ 12022.53, subd. (d).) In all other respects, the judgment is affirmed." (Colbert I, supra, B276969, p. 19.)
III. Relevant trial court proceedings
At the remand hearing, defendant requested, against his attorney's advice, that the hearing be expedited and handled that day. Defendant's attorney stated: "That is against my advice. I had spoken with [defendant] and advised him that the more prudent step would be to have him review the file thoroughly and to make the arguments in mitigation so that Your Honor can consider all those factors. I did do the trial. I do remember the facts, but against my advice, he would like to have it done today, though." Defendant verbally acknowledged that he wanted to go forward immediately despite his attorney's advice to the contrary. Defendant also agreed that Judge Chung, who was not the trial judge, could hear the matter on remand.
Judge Chung stated that she had "reviewed the court file, the sentencing on it, the probation report, [and] the appellate documents," which contained a "factual summary."
Defense counsel argued that the trial court should "strike the gun enhancements" because defendant drew his firearm only to defend his girlfriend, who was being attacked by one of the victims in this case. Defendant then exited the location, but the group of attackers followed him. Defendant believed that the men were armed and drunk; he fired only one shot in self-defense, although the jury rejected his self-defense argument.
The prosecutor argued that Judge Chung should not strike the firearm enhancements because the jury rejected defendant's self-defense claim, defendant had a lengthy criminal record, including several felonies, and defendant was not even allowed to possess a firearm in the first instance. Also, defendant did not simply fire a warning shot or brandish the firearm—he shot another person, inflicting serious injury. The prosecutor concluded that given defendant's background and the facts of this case, the trial court should not strike the firearm enhancements.
After entertaining oral argument, the trial court denied defendant's motion to strike the firearm enhancements. It stated that it was aware that her inquiry had to be "particularized and unique to . . . defendant's particular background and circumstances." The trial court also stated that, although the jury rejected defendant's self-defense claim, she understood defendant's argument to be that "the manner and the factual context in which [the shooting] happened was not particularly aggravating in that [defendant] did retreat. It was simply one shot and [defendant] did not actively stalk the victim with multiple shots." But, the trial court noted that the victim was seriously injured in the abdomen and a great bodily injury enhancement was sustained. Moreover, "this was not just a passing use of the weapon." In fact, defendant, a felon, was not permitted to possess a firearm in the first place.
The trial court also noted that defendant had a lengthy criminal history, dating back to December 1998 for a domestic violence arrest. Defendant also had been charged with two counts of rape in December 1999, but no disposition was shown. And, defendant registered as a sex offender in early 2000; there was an apparent disposition for "sexual imposition" as opposed to rape. Moreover, defendant had subsequent convictions for "disorderly conduct, trespass, resisting, there were drug-related offenses, grand theft auto." In addition, defendant suffered parole violations, and there were two separate notations for "firearm weapons." There was also a notation of gang membership.
In light of the foregoing, the trial court ruled: "The overall sophisticated nature, his recent criminal history, his performance on it [sic], and the circumstances of this case, the court, upon review and upon guidance from the applicable case law, will decline to exercise its discretion under [section 12022.5,] subdivision (h), . . . which was recently amended this year to strike the firearm enhancements that were imposed in this case. [¶] Accordingly, the previous sentence imposed by Judge [Andrew E.] Cooper regarding all the firearm enhancements [is] reinstated and remain. I am not changing the sentence."
DISCUSSION
I. Forfeiture
It is well-established that "the right to challenge a criminal sentence on appeal is not unrestricted. In order to encourage prompt detection and correction of error, . . . reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim." (People v. Scott (1994) 9 Cal.4th 331, 351.) A challenge to sentencing terms for failure to state sufficient reasons or as based upon improper circumstances requires an objection. (People v. Gonzalez (2003) 31 Cal.4th 745, 755-756; People v. Scott, supra, at p. 356; People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [failure to consider mitigating factors].)
Here, defendant failed to raise in the trial court any of the objections he now raises on appeal. Not only did defendant not object, he disregarded his attorney's advice to continue the hearing so that he could review the file and make arguments in mitigation. Under these circumstances, we conclude that defendant forfeited all of his objections on appeal. Our analysis could stop here.
II. The trial court did not abuse its discretion
For the sake of completeness, we turn to the merits of defendant's arguments.
The trial court did not abuse its discretion in declining to strike the firearm enhancements. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The trial court informed itself of the underlying facts and issues by reviewing all of the pertinent documents, including the court file, the prior sentencing transcript, the probation report, and the appellate documents. She heard from defense counsel, who argued that the circumstances in this case were not particularly aggravating; the trial court understood that defendant fired only one shot. And, she stated that she understood and was applying the relevant law.
Moreover, in deciding not to strike the firearm enhancements, the trial court noted that the victim (Gabelman) was seriously injured, suffering a great bodily injury. (Colbert I, supra, B276969, p. 2.) Defendant, a convicted felon, was not even permitted to have possessed the firearm he used in the crimes. And, defendant had a lengthy criminal history, including having served three prior prison terms. (Colbert I, supra, B276969, p. 2.) Finally, the trial court relied upon evidence of defendant's gang membership. Under these circumstances, there was no abuse of discretion.
The parties did not provide us with the evidence denoting defendant's gang membership. But, in his appellate briefs, defendant does not dispute either this notation in the probation report or his gang membership. --------
In urging us to reverse, defendant argues that the matter should be remanded "so that the trial court may consider the Legislature's intent when assessing whether the firearm enhancements are appropriate here." Defendant offers no legal authority in support of his proposition that the trial court erred by not expressly evaluating the Legislature's intent when it declined to strike the firearm enhancements. And, for the reasons set forth above, there is nothing in the trial court's order that suggests it was beyond the "spirit" of the recently-amended statute.
Next, defendant asserts that the trial court erred by not resentencing defendant on all components of the sentence imposed by Judge Cooper, the trial judge who originally sentenced defendant. But, Judge Chung had no lawful basis to do so. In Colbert I, we remanded the matter for the sole purpose of allowing the trial court to exercise its discretion as to whether to strike the firearm enhancements. (Colbert I, supra, B276969, p. 18.) It is well-established that the terms of the remittitur define the lower court's jurisdiction. (Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5.) It follows that Judge Chung's authority was limited to determining whether to maintain or strike the firearm enhancements.
Finally, defendant argues that the trial court relied upon inaccurate information at the remand hearing, namely incorrect information in a probation report. It does not appear that the trial court relied upon inaccurate information when it declined to strike the firearm enhancements. While the probation report may have included some erroneous information, the trial court expressly found that he suffered a conviction for sexual imposition, not rape. And the trial court relied upon information beyond what was set forth in the probation report. It noted that defendant has a lengthy criminal record and had been violated on parole. It had information that defendant had served three prior prison terms. And, as a convicted felon, defendant was not even allowed to possess the weapon he used in the instant case. Finally, defendant was a gang member. It follows that the trial court's decision not to strike the firearm enhancements was reasonable in light of all of the evidence before it. (People v. Pearson (2019) 38 Cal.App.5th 112, 115-118.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
ASHMANN-GERST We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ