People v. Brimmer, 230 Cal. App. 4th 782

On July 4, 1997 Brimmer, a convicted felon, retrieved a sawed-off shotgun during an argument with his common‑law wife, threatened her while holding it, then hid the unloaded shotgun in nearby bushes; officers later recovered it.
Brimmer was convicted in 1998 of felon in possession of a firearm and possession of a short‑barreled shotgun and was sentenced to 25 years to life under California’s Three Strikes law based on prior strike convictions.
Proposition 36 (Three Strikes Reform Act of 2012) added Penal Code §1170.126, allowing some third‑strike inmates to petition for resentencing as second strikers unless certain disqualifying factors apply, including that the defendant “used a firearm” or “was armed with a firearm” during the current offense.
Brimmer petitioned under §1170.126; the trial court granted resentencing and found by a preponderance that he did not pose an unreasonable risk to public safety.
The People appealed, arguing Brimmer was statutorily ineligible because the record of conviction shows he was armed with and used a firearm during the offense; the trial court’s order granting resentencing was reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §1170.126 excludes a defendant who "used" or "was armed with" a firearm when the conviction is for firearm possession	Brimmer was armed with and used the shotgun during the offense (threatening while holding it); thus he is ineligible under the Act	Possession convictions (by their nature) cannot trigger the exclusion unless tied to a separate underlying offense; prosecution must have pleaded and proved the disqualifier	Court held the record shows Brimmer was armed/used the firearm during the offense; possession can satisfy the exclusion when the record shows ready availability/use, so Brimmer is ineligible
Whether the retrospective resentencing provision requires the prosecution to plead and prove disqualifying facts (and whether Apprendi-type jury proof is required)	No pleading/proof is required for §1170.126 resentencing determinations; the court must determine eligibility from the record of conviction; Apprendi does not apply to a discretionary reduction of sentence	Arming/use must have been pled and proved to a jury at the original trial; Apprendi and its progeny require jury proof of facts that increase punishment	Court held the pleading-and-proof language in the prospective statutes is not incorporated into §1170.126; §1170.126 permits the court to determine eligibility from the record and Apprendi does not apply to denials of discretionary leniency under §1170.126

Bland v. Superior Court, 10 Cal.4th 991 (Cal. 1995) (defines "armed with" as firearm available for offensive or defensive use; requires temporal nexus and facilitative nexus for section 12022 enhancements)
King v. Superior Court, 5 Cal.4th 59 (Cal. 1993) (construing "use" of a firearm in enhancement statutes)
Wims v. Superior Court, 10 Cal.4th 293 (Cal. 1995) (discusses standard jury instruction and definition of firearm "use")
Pitto v. Superior Court, 43 Cal.4th 228 (Cal. 2008) (discusses purpose/effect and facilitative nexus in arming/use analyses)
Woodell v. Superior Court, 17 Cal.4th 448 (Cal. 1998) (appellate opinion and trial record are part of the record of conviction for collateral sentencing determinations)
Trujillo v. Superior Court, 40 Cal.4th 165 (Cal. 2006) (appellate opinion may be used to determine the nature of prior convictions)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury)
Blakely v. Washington, 542 U.S. 296 (U.S. 2004) (clarifies the relevant "statutory maximum" for jury‑findings requirement)
Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (facts that increase mandatory minimum must be found by a jury)
Dillon v. United States, 560 U.S. 817 (U.S. 2010) (Supreme Court: Sixth Amendment jury‑finding rules generally do not apply to discretionary reductions in sentence under intervening laws)