THE PEOPLE, Plаintiff and Appellant, v. JERRY CARL BRIMMER, Defendant and Respondent.
No. E058563
Court of Appeal, Fourth District, Division Two, California
Oct. 16, 2014
Rehearing Denied November 5, 2014
Respondent‘s petition for review by the Supreme Court was denied January 14, 2015, S222664.
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). (
I
FACTUAL AND PROCEDURAL BACKGROUND2
On July 4, 1997, an Independence Day party occurred at the apartmеnt complex in which defendant, his common law wife, Claudette Walters, and his infant daughter resided. Both defendant and his wife were drinking.
When the police arrived, defendant was belligerent and could not be interviewed duе 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
On November 6, 2012, the electorate passed Proposition 36, also known as the Act. Among other things, this ballot measure enacted
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
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
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 thе commission of his commitment offense.” (See
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
A. Principles of Statutory Interpretation
Statutory interpretation is a question of law. (Reno v. Baird (1998) 18 Cal.4th 640, 660 [76 Cal.Rptr.2d 499, 957 P.2d 1333].) Consequently, appellate courts apply their independent judgment when interpreting a legislative act. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699 [170 Cal.Rptr. 817, 621 P.2d 856].)
“Thus, the first step in statutory construction is to examine the statutory language and give it a plain and commonsense meaning.” (People v. Verduzco (2012) 210 Cal.App.4th 1406, 1414 [149 Cal.Rptr.3d 200].) In other words,
“If the meaning of the statute remains unclear after examination of both the statute‘s plain language and its legislative history, then we proceed to the third and final step of the interpretive prоcess. We apply ‘reason, practicality, and common sense to the language at hand.’ [Citation.] The words of the statute should be interpreted ‘to make them workable and reasonable.’ [Citation.]” (People v. Verduzco, supra, 210 Cal.App.4th at p. 1414.)
B. The Act Generally
The Act amended
“Thus, there are two parts to the Act: the first part is prospective only, reducing the sentence to be imposed in future three strike cases where the third strike is not a serious or violent felony [citations]; the second part is
We agree with defendant that his current commitment felony offenses of being a convicted felon in possession of a firearm and illegal possession of a shotgun are not serious or violent felonies under
Using a firearm or being armed with a firearm during the commission of a current offense is a disqualifying factor listed in
In approving the Act, the voters found and declared that its purpose was to prevent the early release of dangerous criminals and relieve prison overcrowding by allowing low-risk, nonviolent inmates serving life sentences for petty crimes, such as shoplifting and simple drug possession, to receive twice the normal sentence instead of a life sentence. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105 (Voter Information Guide)6; see People v. White (2014) 223 Cal.App.4th 512, 522 [167 Cal.Rptr.3d 328] (White), review den. Apr. 30, 2014, S217030 [Fourth Dist., Div. One].) The electorate also mandated that the Act be liberally construed to effectuate the protection of the health, safety, and welfare of the peoрle of California. (Voter Information Guide, supra, text of Prop. 36, § 7, p. 110; see White, supra, at p. 522.) Accordingly, we liberally construe the provisions of the Act in order to effectuate its foregoing purposes and note that findings in voter information guides may be used to illuminate ambiguous or uncertain provisions of an enactment. (See White, supra, at p. 522; Yearwood, supra, 213 Cal.App.4th at pp. 170-171.)
C. “Used” or “Armed with a Firearm”
The Act does not define “used” or “armed with a firearm.” However, the Penal Code provides definitions to distinguish between arming and use.7
In People v. King (1993) 5 Cal.4th 59 [19 Cal.Rptr.2d 233, 851 P.2d 27], our Supreme Court noted: “‘Use’ in firearm enhancement statutes, i.e.,
The lead case construing the phrase “armed with a firearm” and addressing the definition of arming for purposes of former
The Supreme Court has subsequently reiterated Bland‘s holding that the arming under
. . .
“The statutory elements of a violation of
As the court in In re Pritchett (1994) 26 Cal.App.4th 1754 [33 Cal.Rptr.2d 296] explained: “Possession was complete without use of the shotgun. In addition to possessing it, he did use it, but using it as a club in no way furthered the crime of possession. [¶] At most, [the defendant] used the shotgun as an instrument of possession, or made ‘possessory use’ of the shotgun, in the commission of his crime of [felon in] possession. However, if possessory use is a legally cognizable concept, it does not support a use enhancement because possessory use is an element of the crime of possession of a deadly weapon.” (Id. at p. 1757, fn. omitted.)
Accordingly, as noted above, “armed with a firearm” has been statutorily defined and judicially construed to mean having a firearm available for use, either offensively or defensively. (E.g.,
“Where, as here, ‘the language of a statute uses terms that have been judicially construed, ” ‘the presumption is almost irresistible“’ that the terms have been used “‘in the prеcise and technical sense which had been placed upon them by the courts.‘“” [Citations.] This principle [likewise] applies to legislation adopted through the initiative process. [Citation.]’ [Citation.] Accordingly, we conclude the electorate intended ‘armed with a firearm,’ as that phrase is used in the Act, to mean having a firearm available for offensive or defensive use.” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1052 [171 Cal.Rptr.3d 70] (Blakely), review den. July 9, 2014, S218914, quoting Weidert, supra, 39 Cal.3d at pp. 845-846.)
Here, the record does not contain the accusatory pleading. It is therefore unknown whether defendant was charged with using or being armed with a firearm during the commission of his current commitment offenses.9 However, the record shows that the prosecution‘s case was based on evidence that defendant was armed with an unloaded shotgun while arguing with or threatening his girlfriend during his possession of the shotgun. In other words, the prosecution‘s case was based on evidence that defendant not only possеssed the shotgun, but also that he was armed with the firearm during his commission of the current offenses. Specifically, the record establishes that defendant not only had a firearm “in [his] possession or under [his] custody or control“; he also was personally armed with the firearm on that date because he was carrying it and using it in a menacing manner to threaten his girlfriend—and, thus, had “ready access” (Bland, supra, 10 Cal.4th at p. 997) to—that firearm. The record of conviction shows that on July 4, 1997, while arguing with his girlfriend about allowing a neighbor‘s dog to stay at the apartment, defendant retrieved a sawed-off shotgun from inside his apartment and, while holding the shotgun, told his girlfriend, “let‘s get it on.” The
Defendant contends that he could not use, or be armed, with a firearm during the commission of his сurrent offenses, because the offenses for which he was convicted were firearm possession offenses, and there is no evidence to suggest he used or was armed with a firearm during the commission of another offense. Defendant appears to maintain that possessory offenses can never fall under the armed with a firearm exclusion, because one cannot use, or be armed with a firearm “during the commission” of such offenses without another separate or tethering offense. We reject these arguments.
Where, as here, the record shows that a defendant convicted of possession of a firearm was armed with the firearm during the commission of that offense, the armed with a firearm exclusion applies and the defendant is not entitled to resentencing relief under the Act. As previously noted, the record here demonstrates that defendant was in actual physical possession of the shotgun, and therefore armed with a firearm during the commission of his possessory offenses. Defendant‘s record of conviction shows the prosecution‘s case was based on evidence that defendant not only possessed the shotgun, but also that he was armed with the shotgun during his commission of the current offenses.10
Defendant‘s exact arguments were recently rejected by our colleagues in Division One of the Fourth Appellate District in White, supra, 223 Cal.App.4th 512, and more recently by our colleagues in the Fifth Appellate District in People v. Osuna (2014) 225 Cal.App.4th 1020 [171 Cal.Rptr.3d 55] (Osuna), review denied July 9, 2014, S218183. White deemed it appropriate for the court to look beyond the crime for which defendant had been sentenced to determine whether the “armed-with-a-firearm” exception to resentencing applied. (White, at p. 523.) There, the defendant had been convicted and sentenced as a felon in possession of a firearm. The court recоgnized that “possession of a firearm does not necessarily require that the possessor be armed with it” (id. at p. 524), but affirmed the denial of resentencing because “the record of conviction establishes that the applicable resentencing eligibility criterion set forth in
The trial evidence in White showed that the prosecution‘s case was not based on the theory that White was guilty of possession of a firearm by a
The court in Osuna, supra, 225 Cal.App.4th 1020 reached a similar conclusion. As in White, the defendant in Osuna was serving a three strikes sentence after having been convicted of being a felon in possession of a firearm, but the People did not allege he was armed with a firearm at the time or allege a sentence enhancement based on being armed with a firearm. (Osuna, at p. 1027.) The trial court denied the defendant‘s petition for resentencing, concluding he was ineligible because he was armed with a firearm during the commission of his offense. (Id. at p. 1028.) The appellate court concluded the record contained evidence that the defendant “had a firearm available for offensive or defensive use” during the commission of his offense, because he “was actually holding a handgun.” (Id. at p. 1030.) “Thus, factually he was ‘armed with a firearm’ within the meaning of the Act.” (Ibid.)
In Osuna, supra, 225 Cal.App.4th 1020, the defendant argued he was not ineligible for resentencing under
Applying White and Osuna to this case, we conclude defendant was armed with a firearm during the commission of his commitment offenses for possession of a firearm by a felon and possession of a short-barreled shotgun. Neither conviction requires a specific finding that the defendant was “armed with a firearm” during the commission of the offense, but both offenses may be committed by an armed defendant. As previously explained, “[a] defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. [Citations.]” (Bland, supra, 10 Cal.4th at p. 997, italics omitted.) “‘[A] firearm that is available for use as a weapon creates the very real danger it will be used.’ [Citation.] Therefore, ‘[i]t is the availability—the ready access—of the weapon that constitutes arming.’ [Citation.]” (Ibid.) The defendant is considered armed even if the weapon is inoperable (People v. Nelums (1982) 31 Cal.3d 355, 359-360 [182 Cal.Rptr. 515, 644 P.2d 201]) or, as here, it is unloaded (People v. Masbruch (1996) 13 Cal.4th 1001, 1006–1007 [55 Cal.Rptr.2d 760, 920 P.2d 705]).
Our conclusion that the record of defendant‘s conviction shows he is ineligible for resentencing relief is consistent with the purposes of the Act. As noted, the Act is intended to provide resentencing relief to low-risk, nonviolent inmates serving life sentences for petty crimes, such as shoplifting and simple drug possession. (Voter Information Guide, supra, text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105.) Defendant‘s current offenses of felon in possession of a firearm and possession of a short-barreled shotgun—when viewed in light of the fact that he was physically armed with the firearm during the commission of those offenses—cannot be deemed a petty or minor crime for purposes of the Act. The Act is also intended to limit eligibility for resentencing to inmates who have not committed current and prior offenses, including gun-related felonies. (Voter Information Guide, supra, analysis of Prop. 36 by Legis. Analyst, pp. 49-50.)
D. Use of Record of Conviction to Determine Eligibility
Defendant argues that the People failed to present proper evidence regarding his
In any event, this court‘s unpublished opinion in defendant‘s prior underlying appeal is sufficient evidence of the record of conviction. In People v. Woodell (1998) 17 Cal.4th 448 [71 Cal.Rptr.2d 241, 950 P.2d 85] (Woodell), our Supreme Court held that the record of a prior conviction incorporated both the trial and appellate court record, including the appellate opinion. (Id. at p. 458.) In so holding, the Woodell court noted that “the appellate opinion itself, representing the action of a court, clearly comes within the exception to the hearsay rule for official records” (ibid.) and that it is “a judicial statement and can help determine the nature of the crime of which the defendant had been convicted.” (Id. at p. 459.) “‘[A]ppellate opinions, in general, are part of the record of conviction that the trier of fact may consider in determining whether a conviction qualifies under the sentencing scheme at issue.’ [Citation.]” (People v. Trujillo (2006) 40 Cal.4th 165, 180-181 [51 Cal.Rptr.3d 718, 146 P.3d 1259] (Trujillo), quoting Woodell, supra, 17 Cal.4th at p. 457.) A trial court may look not only to the record of conviction for a particular crime when determining the facts underlying the offense for purposes of sentencing on a subsequent conviction, but to other records which contain sufficient procedural protections to ensure their reliability. (See People v. Blackburn (1999) 72 Cal.App.4th 1520, 1526-1527, 1531-1532 [86 Cal.Rptr.2d 134] [Fourth Dist., Div. Two] [preliminary hearing transcript on prior offenses supported determination prior conviction was a serious felony]; Trujillo, at pp. 177-180 [same].)
We see nо reason why the Act would change this rule. (Accord, White, supra, 223 Cal.App.4th at p. 525 [reliance on record of conviction including information, pretrial motion, and closing argument]; Blakely, supra, 225 Cal.App.4th at pp. 1058-1063 [a trial court may examine relevant, reliable, admissible portions of the record of conviction to determine disqualifying factors]; People v. Bradford (2014) 227 Cal.App.4th 1322, 1336-1338 [174 Cal.Rptr.3d 499] (Bradford) [determination of whether the defendant was disqualified from resentencing is based solely on evidence found in record of conviction akin to establishing the nature of a prior conviction for purposes of a sentencing enhancement but may not consider new evidence outside of the record of conviction].) Accordingly, we find a trial court may rely on the record of conviction, including this court‘s prior opinion in
If the prior opinion does not sufficiently еstablish the facts, “the defendant, who suffered the conviction and took the appeal, would know of and be able to challenge any material flaws or omissions in the opinion.” (Woodell, supra, 17 Cal.4th at p. 457.) Indeed, defendant makes no claim that our prior opinion misstated the facts or that the trial court misinterpreted the facts in our prior opinion. In such circumstances, we see no reason why a trial court‘s use of our prior opinion to determine the facts is improper. The opinion clearly indicates defendant was armed with and used a firearm during the commission of his possession of the firearm, and defendant does not argue otherwise on appeal. The record of defendant‘s conviction shows that defendant retrieved a sawed-off shotgun from inside his apartment and, while holding the shotgun, threatened his girlfriend. Hence, even if the People failed to present proper evidеnce to challenge defendant‘s eligibility under the Act, this court‘s prior opinion clearly indicates defendant was ineligible to be resentenced as a second strike offender under the Act.
E. “Plead and Prove” Requirement
The People argue that the resentencing provisions of
We reject defendant‘s contention that the pleading and proof requirement set forth in both
As the White court found, defendant‘s reference to the pleading and prоof requirement “plainly is a part of only the prospective part of the Reform Act, which governs the sentencing of a defendant with ‘two or more prior serious and/or violent felony convictions’ who has suffered a third felony conviction; it is not a part of
Thus, the Act requires pleading and proof when ineligibility for lenient treatment under the Act applies prospectively, that is, to persons currently charged with a three strikes offense that is not itself defined as serious or violent. (
Nowhere in the resentencing provisions of
In rejecting an interpretation that a defendant becomes presumptively entitled to resentencing absent proof of dangerousness beyond a reasonable doubt, Kaulick, supra, 215 Cal.App.4th 1279, notes it is determinative that the drafters omitted any requirement for the pleading and proof of dangerousness in the latter statute. (Id. at p. 1303, fn. 26; see id. at pp. 1298-1299, fn. 21 [dictum; “[b]y its terms”
We also reject defendant‘s assertion that using a disqualifying factor not pled and proved to the jury would violate his constitutional rights to due process and a jury trial under Apprendi, supra, 530 U.S. 466 and its progeny. He argues that he was entitled to a jury trial to determine whether he was armed with a gun.
Considered in conjunction with each other, the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution require that each element of a
Of course, constitutional requirements supersede statutory language. Defendant, however, misapplies Apprendi and its progeny to resentencing petitions under
The failure of the applicability of these cases here lies in the difference between a proceeding which would increase a sentence and one which would decrease the sentence. The resentencing provisions under
In sum, we conclude that, where the record establishes the prosecution‘s case was based on the theory a defendant convicted of possession of a firearm by a felon used or was armed with the firearm, e.g., he had a firearm capable for ready use, during the commission of that offense, the armed with a firеarm exclusion applies and, thus, a defendant is not entitled to resentencing relief under the Act. We also hold that, in such a case, a trial court may deny
Accordingly, we will reverse the order granting defendant‘s petition for a recall of his life sentence and for resentencing as a second strike offender under the Act.
DISPOSITION
The order granting defendant‘s petition for a recall of his life sentence and for resentencing as a second strike offender under the Act is reversed.
King, J., and Miller, J., concurred.
A petition for a rehearing was denied November 5, 2014, and respondent‘s petition for review by the Supreme Court was denied January 14, 2015, S222664.