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Name: People v. Brimmer
Case #: E058563
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/16/2014

Where opinion in prior appeal showed defendant was “armed” during his gun possession offense, this was proper evidence he is ineligible for Strike Reform resentencing. In 1998, Brimmer was convicted of being a felon in possession of a gun (former Pen. Code, § 12021, subd. (a)) and possession of a short barreled shotgun (former Pen. Code, § 12020, subd. (a)). Three strike priors were found true. He received a life strikes sentence. After passage of Proposition 36, the Strike Reform Act (the Act), Brimmer sought resentencing. Over prosecution objection that he was ineligible because he was armed during the offense (Pen. Code, § 1170.126, subd. (e)) the trial court granted the petition, imposing a two strike term. The prosecution appealed. Held: Reversed. Under the Act a defendant whose current offense is not serious or violent may qualify for a reduced resentence unless one of the enumerated factors in subdivision (e), such as being armed with a gun during the commission of the offense, apply. Although illegal possession of a gun does not always require that the possessor be armed with it (because it may be constructively possessed) the record reflects Brimmer physically possessed a gun during the commission of the offense. Unlike a Penal Code section 12022 “armed” enhancement, the disqualifying “armed” factor in the Act requires only a temporal nexus between the arming and the underlying offense, not a facilitative one.

The record of conviction, including the court’s opinion in the prior appeal, established that Brimmer was armed. Brimmer claimed the prosecution did not present proper evidence he was armed and that only the record of conviction, and not police reports, probation reports, or other evidence, may be considered. However, Brimmer did not object to the documents submitted by the prosecution and therefore forfeited this claim. In any event, a trial court may rely on the record of conviction, including the Court of Appeal opinion in the life commitment case, as evidence to determine eligibility under the Act. Thus, even if the prosecution failed to present proper evidence of Brimmer’s ineligibility for resentencing, the court’s opinion clearly reflected it.

The prosecution is not required to plead and prove ineligibility for retrospective application of the Act. With respect to prospective application of the Act, the prosecution is required to plead and prove ineligibility for two strike sentencing (Pen. Code, §§ 667, subd. (e)(2)(C); 1170.12, subd. (c)(2)(C)). However, this is not incorporated into section 1170.126, with respect to retrospective application of the law. A pleading and proof requirement will not be implied and there is no such provision in section 1170.126, subdivision (e). The failure to require such proof does not violate Brimmer’s due process rights under Apprendi v. New Jersey (2000) 530 U.S. 466, because it does not apply to downward sentence modifications due to intervening laws. (Dillon v. U.S. (2010) 560 U.S. 817.)