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People v. Brimmer

California Court of Appeals, Fourth District, Second Division

October 16, 2014

THE PEOPLE, Plaintiff and Appellant,
v.
JERRY CARL BRIMMER, Defendant and Respondent.

APPEAL from the Superior Court of No. RIF75582 Riverside County. Becky Dugan, Judge.

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COUNSEL

Paul E. Zellerbach, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

RAMIREZ P. J.

This is an appeal by the People following the trial court’s order granting defendant and respondent Jerry Carl Brimmer’s petition to recall defendant’s sentence under the Three Strikes Reform Act of 2012, added by Proposition 36 (the Act). (Pen. Code, § 1170.126.)[1] On appeal, the People contend that the trial court erred in finding defendant eligible for resentencing under the Act because during the commission of the offense, defendant used and was armed with a firearm. For the reasons explained below, we will reverse the trial court’s order.

I

FACTUAL AND PROCEDURAL BACKGROUND[2]

On July 4, 1997, an Independence Day party occurred at the apartment complex in which defendant, his common law wife Claudette Walters, and his infant daughter resided. Both defendant and his wife were drinking.

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During the course of the party, defendant and Walters got into an argument. Apparently, defendant was angry at Walters for agreeing to let a friend’s pit bull live in the apartment without consulting him first, as he was concerned about his daughter’s safety. Kutrina Farris, a neighbor, saw defendant and Walters argue in front of the building. Then, defendant took his daughter and left. Subsequently, he returned with a gun and continued his argument with Walters; and while still holding on to the weapon, defendant told his girlfriend, “ ‘let’s get it on.’ ” Subsequently, Walters's daughter, Dominique, told Farris that defendant pulled a gun on her mother. In response, Farris called the police. After summoning the police, Farris saw defendant walk out of his apartment with a shotgun and hide the gun in the nearby rose bushes.

When the police arrived, defendant was belligerent and could not be interviewed due to being severely intoxicated. Defendant was arrested, transported to county jail, and placed in an isolated drunk room of the jail. Police officers recovered an unloaded sawed-off shotgun in the bushes near the apartment.

On May 7, 1998, defendant was convicted of being a felon in possession of a firearm (former § 12021, subd. (a)(1); count 1) and possession of a short-barreled shotgun (former § 12020, subd. (a); count 2). It was also found true that defendant had suffered three prior strike convictions, two for robbery and two for first degree residential burglary. Defendant was subsequently sentenced to 25 years to life in state prison.

On November 6, 2012, the electorate passed Proposition 36, also known as the Act. Among other things, this ballot measure enacted section 1170.126, which permits persons currently serving an indeterminate life term under the “Three Strikes” law to file a petition in the sentencing court seeking to be resentenced to a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion, that the defendant meets the criteria of section 1170.126, subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is eligible for resentencing if he or she is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or subdivision (c) of section 1170.12 “for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).) The Act makes ineligible for resentencing those

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persons who “[d]uring the commission of the current offense, the defendant used a firearm, [or] was armed with a firearm....” (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii); see § 1170.126, subd. (e).)

On December 13, 2012, defendant filed a petition for resentencing under section 1170.126. The People opposed the petition on the grounds that defendant was statutorily ineligible under the Act. The People argued that defendant was ineligible because he was armed with and used a firearm during the commission of the crime; that the prosecution did not have to plead and prove defendant was armed with and used a firearm; and that defendant posed a risk to public safety.

The trial court heard the petition on April 11, 2013. Following argument from the parties, the trial court granted the petition, finding defendant eligible for resentencing under section 1170.126. The court also found by a preponderance of evidence that defendant did not pose a dangerous risk to public safety. The court explained that defendant “is not likely now, given his age, given the fact that it has been 11-plus years since he has had even an incident of difficulty as far as mutual combat or any other kind of violence in the custodial setting, and even in the custodial setting, to be fair to him, while he’s had a number of—he’s had three mutual combats, he’s had no weapons allegations. He’s had no violence. He’s had no disrespect to correctional officers. He’s had none of the other indicia the Court would show as red flags, other than the mutual combats. [¶] When he’s punished, he doesn’t argue about it. He takes the punishment. He’s verbally warned. There’s no indication that he’s done anything that is at all not respectful or used a weapon or violated any other rules, but the minor rules we indicated like covering the window.”

The court thereafter resentenced defendant to the upper term of three years, doubled to six years due to the prior strike offenses, for felon in possession of a firearm as alleged in count 1; and a stayed six-year sentence on count 2 for possession of a short-barreled shotgun. Defendant was awarded a total of 5, 939 days in credits and ordered to report to parole.

The People timely filed an appeal on April 15, 2013.[3]

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II

DISCUSSION

The People argue that defendant was statutorily ineligible under the plain language of the Act, because defendant “used a firearm and was armed with a firearm during the commission of his commitment offense.” (See § 667, subd. (e)(2)(C)(iii).) The People explain that the record clearly shows defendant “retrieved a short barreled shotgun, ” and threatened the victim while holding the gun, stating “‘let’s do this’ and ‘let’s get it on.’” Therefore, the People maintain, defendant “used a firearm and was armed with a firearm during the commission of the offense.” The People also assert that the provisions of section 1170.126 do not contain a pleading and proof requirement to render defendant ineligible to petition for resentencing.

Defendant responds that he was a person who was qualified to have his sentence recalled, because his commitment convictions for being a felon in possession of a gun and possession of a short-barreled shotgun are not violent or serious felonies as defined in sections 667.5, subdivision (c), and 1192.7, subdivision (c), and the prosecution failed to plead and prove any disqualifying factors under section 667, subdivision (e)(2)(C). Defendant also argues that his convictions for possessing a firearm do not, in and of themselves, constitute a disqualifying factor, because the arming must occur during the commission of a separate felony and the evidence was insufficient to show that he had a firearm available for offensive or defensive use in the furtherance of any felony. Defendant further claims that using a ...


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