People v. Brim CA2/8 ( 2015 )

Filed 9/21/15 P. v. Brim CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B261264
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A454175)
v.
BRIAN KEITH BRIM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann
Fournier, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
******
Brian Keith Brim appeals from the court’s order denying his petition for reduction
to misdemeanor, which he brought pursuant to the Safe Neighborhoods and Schools Act
(Prop. 47, § 14, as approved by voters, Gen. Elec. (Nov. 4, 2014)) (Proposition 47).
Pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende), appellant’s counsel filed an
opening brief requesting that this court review the record and determine whether any
arguable issues exist on appeal. Appellant filed a supplemental brief. We have reviewed
the entire record and have considered appellant’s supplemental brief. We find no
arguable issue and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As required by People v. Kelly (2006) 40 Cal. 4th 106, 124, we provide a brief
description of the facts and procedural history of the case.
In July 1982, appellant pled guilty to one count of possession of phencyclidine for
sale. (Health & Saf. Code, § 11378.5.) In November 1982, the court sentenced appellant
to three years in state prison.
In December 2014, appellant filed a petition to reduce his 1982 conviction to a
misdemeanor pursuant to Penal Code section 1170.18, subdivision (f), the resentencing
provisions of Proposition 47. The court denied the petition because the crime of
possession of phencyclidine for sale is not eligible for resentencing or reclassification
under Proposition 47. Appellant filed a timely appeal from the court’s order.
DISCUSSION
Appellant’s supplemental brief contends the court erred because his 1982
conviction is “invalid” and has “no factual basis.” He asserts he never actually pled
guilty in 1982, despite the presence in the record of a minute order from his 1982 plea
hearing and his Tahl1 waiver form. First, the trial court already rejected this same
contention when appellant filed a motion to vacate his 1982 conviction, and we dismissed
his appeal in that case because the order denying his motion to vacate was nonappealable.
(People v. Brim (Nov. 9, 2011, B228977) [nonpub. opn.].) Second, even if appellant’s
1 In re Tahl (1969) 1 Cal. 3d 122.
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contention had merit, the basis for his plea has nothing to do with whether the conviction
may be reclassified under Proposition 47. The trial court did not err in determining
appellant’s conviction was not eligible for reclassification. Proposition 47 applies to
certain drug possession offenses, but not possession for sale. (Pen. Code, § 1170.18,
subd. (a); 3 Witkin, California Criminal Law 4th (2015 supp.) Punishment, § 308A,
p. 73.)
Having examined the entire record and appellant’s contentions, we are satisfied no
arguable issues exist and appellant’s counsel has fully satisfied his responsibilities under
Wende. (Smith v. Robbins (2000) 528 U.S. 259, 279-284; Wende, supra, 25 Cal.3d at
p. 441; People v. Kelly, supra, 40 Cal.4th at pp. 123-124.)
DISPOSITION
The judgment is affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
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