Filed 9/30/15 P. v. Briseno CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067101
Plaintiff and Respondent,
v. (Super. Ct. No. SF112318)
HUGO VICTOR BRISENO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielson, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M.
Clark, Deputy Attorneys General, for Plaintiff and Respondent.
In 1997, a jury convicted Hugo Victor Briseno of being a felon in possession of a
firearm. (Pen. Code,1 § 12021, subd. (a) [renumbered as § 29800, subd. (a)(1), Stats.
2010, ch. 711, § 6].) The court found true four prison priors (§ 667.5, subd. (b)), and two
strike priors (§ 667, subds. (b)-(i)).
On August 28, 1997, the court sentenced Briseno to an indeterminate term of 29
years to life.
In August 2013, Briseno filed a petition for resentencing pursuant to the Three
Strikes Reform Act of 2012 (Act; § 1170.126).
In November 2014, the trial court issued an order to show cause why Briseno's
petition should be denied because he was ineligible for resentencing on the ground he
was armed with a firearm at the time of the offense pursuant to section 1170.126,
subdivision (e)(2).
The trial court received additional briefing from Briseno, although the prosecution
filed nothing and made no argument at the hearing. Following a brief hearing the court
found Briseno ineligible for resentencing because the record of conviction demonstrated
he was personally armed at the time of the offense.
Briseno appeals contending the trial court erred in finding him to be armed when
his conviction was only for possession, a nonserious felony. In addition, Briseno argues
he was entitled to a jury trial and to have the prosecution prove he was armed, beyond a
reasonable doubt.
1 All further statutory references are to the Penal Code unless otherwise specified.
2
Briseno candidly acknowledges that appellate case law has rejected his position on
each issue. He contends, however, that the cases have been wrongly decided.
STATEMENT OF FACTS
The record does not contain a transcript of the 1997 trial. However, the parties
have utilized the probation officer's report from the 1997 conviction without objection.
We will take only a small portion of that report for our factual summary, since we are
only concerned with information regarding whether, in addition to possessing a firearm,
Briseno was personally armed with one.
This case arises from a stop of a vehicle by police as part of a drug investigation.
During the stop Briseno was patted down by an officer. During the pat-down, a small,
chrome plated .32 caliber firearm fell to the ground.
During his conversation with the probation officer, Briseno admitted he had
possession of the gun. He said it had been passed to him seconds before the stop as he
was supposed to throw it away.
DISCUSSION
Briseno contends the trial court erred in finding him ineligible for resentencing
under the Act. He was convicted of possession of a firearm, not of being armed. Thus,
he claims the record does not support a finding of ineligibility. In any event, he contends
he was entitled to a full trial on the issue. As Briseno recognizes, both questions have
been resolved against him by the appellate courts. He argues the cases were wrongly
decided. We disagree and therefore affirm.
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A. The Three Strikes Reform Act of 2012
The Act substantially changed the prior law. Going forward defendants will be
eligible for a life sentence only if the "third strike" is a serious or violent felony. The Act
also contains a provision for resentencing those who are serving life terms where the third
strike was a nonserious felony. In the latter case a procedure was established to allow
recall and resentencing for qualifying inmates. The Act also contains provisions under
which a person who might otherwise qualify for relief may be deemed ineligible.
(People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)
One of the ineligibility provisions is section 1170.126, subdivision (e)(2). The
provision renders an inmate ineligible for resentencing where the person was "armed with
a firearm" during the commission of the offense.
B. The Record of Conviction
The question presented in this case is whether the record of conviction
demonstrates Briseno was armed during his possession of a firearm. The parties have
utilized the probation officer's report, which includes Briseno's admission to the
probation officer that he had physical possession of the gun, albeit for a brief time. There
has been no objection to the use of the report as part of the record of conviction. We will
use the probation report in our analysis of the trial court's decision.
In People v. White (2014) 223 Cal.App.4th 512 (White), this court considered a
similar fact situation. There the defendant was convicted of possession, however the
record showed he had the gun in his physical possession at the time of the offense. The
court in White stated that where "the record establishes that a defendant convicted under
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the pre-Proposition 36 version of the Three Strikes law as a third strike offender of
possession of a firearm by a felon was armed with a 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 Reform Act." (Id. at p. 519.)
The appellate courts in People v. Brimmer (2014) 230 Cal.App.4th 782, 797
(Brimmer), and People v. Osuna (2014) 225 Cal.App.4th 1020, 1028-1032 (Osuna), have
agreed with our court's decision in White, supra, 223 Cal.App.4th 512.
The term "armed with a firearm" means having the firearm available for use, either
offensively or defensively. (Osuna, supra, 225 Cal.App.4th at p. 1029.) It is the
availability of the weapon for ready use that constitutes arming. (People v. Bland (1995)
10 Cal.4th 991, 997.)
Briseno argues the cases cited have been wrongly decided. We have reviewed the
opinions which have applied ineligibility in cases such as this and find them persuasive.
We decline to revisit our decision in White, supra, 223 Cal.App.4th 512. Thus we are
satisfied the record of conviction in this case established Briseno was armed with a
firearm within the meaning of section 1170.126, subdivision (e)(2) and is thus not
eligible for resentencing
C. Procedural Due Process
Briseno argues he was entitled to a full trial on the question of whether he was
armed. He relies in large part on Apprendi v. New Jersey (2000) 530 U.S. 466. In
Apprendi the court held that where a person's sentence is increased beyond that which
would be allowed for the elements of the offense based on a fact or allegation, due
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process requires that the person have notice of the fact or allegation and that the
government must be required to prove the allegation, beyond a reasonable doubt. The
defendant must also be given the right to a jury trial. (Id. at p. 490.) If Briseno were now
charged in a new three strikes case, he would have the right to the due process mandated
in Apprendi. This is not a new charging event, however. In 1997, Briseno's prior
convictions were alleged and proved and his conviction has long since been final.
Rather, he is seeking to get the benefit of a new statute, which does not provide relief for
persons whose record of conviction shows the person was armed.
In People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301, the
court rejected the argument that a defendant seeking resentencing under the Act was
entitled to the due process outlined in Apprendi, supra, 530 U.S. 466. The court in
Osuna, supra, 225 Cal.App.4th at page 1039, reached the same conclusion. Also
agreeing that Apprendi does not apply are the courts in Brimmer, supra, 230 Cal.App.4th
at page 803 and People v. Blakely (2014) 225 Cal.App.4th 1042 at page 1059. As we
have noted Briseno contends all of these cases were wrongly decided. As we have
previously said, we disagree and will follow existing case law.
Accordingly, we find the trial court did not deny Briseno due process in the
manner in which his petition was resolved.
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DISPOSITION
The order denying Briseno's petition for resentencing under the Act is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.
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