People v. Lee CA3

Filed 10/30/23 P. v. Lee CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C098034

Plaintiff and Respondent, (Super. Ct. No. 07F01569)

v.

THAE LEE,

Defendant and Appellant.

A jury found defendant Thae Lee guilty of discharging a firearm at an occupied vehicle (Pen. Code, § 246)1 and found true that he personally used a firearm (§ 12022.53, subd. (c)) and committed the crime to promote a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced him to state prison for 25 years to life plus 20 years consecutive for the firearm enhancement. On appeal, we struck the 20-year term for the

1 Undesignated statutory references are to the Penal Code.

1

firearm sentence and affirmed the judgment as modified. (People v. Lee (Oct. 9, 2009, C058336) [nonpub. opn.].) In August 2022, defendant filed a petition for resentencing under section 1172.6.2 The trial court denied defendant’s petition, finding him ineligible for relief as a matter of law because defendant was not convicted of murder, attempted murder, or any other charge eligible for relief under section 1172.6. Defendant now appeals the trial court’s denial of his petition for resentencing. His appellate counsel filed a brief raising no arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436 and asked that we exercise our discretion to review the record for arguable issues on appeal. This court notified defendant he had 30 days to file a supplemental brief raising any argument he wanted us to consider. Defendant filed two supplemental briefs, arguing: (1) the trial court in his underlying case erroneously took judicial notice of court documents in related cases involving the same gang that prosecutors argued defendant belonged to, and we erroneously relied on this evidence in finding that substantial evidence supported the true finding on the gang enhancement; (2) the trial court in his underlying case erred in admitting the gang expert’s testimony; and (3) the evidence was insufficient to support the true finding on the gang enhancement. Defendant further asks that we consider the effect of Assembly Bill No. 333 (2021-2022 Reg. Sess.) on his gang enhancement conviction. We will affirm.