People v. Brimage CA5

INTRODUCTION

In 2018, defendant Robert Brimage pleaded guilty to two counts of second degree robbery (Pen. Code,1 § 212.5, subd. (c), counts 1 & 2) and admitted a strike prior and a prior serious felony conviction allegation (§§ 667, subds. (a) & (c)–(j), 1170.12, subds. (a)–(e). Pursuant to the negotiated plea, the trial court sentenced defendant to a stipulated term of 17 years—10 years on count 1 (the upper term, doubled), two years on count 2 (one-third the middle term, doubled), and five years for the prior serious felony (§ 667, subd. (a)). In June 2024, the Department of Corrections and Rehabilitation (CDCR) sent the trial court a letter providing it with authority to resentence defendant pursuant to section 1172.1 in light of the court’s newfound discretion to dismiss prior serious felony enhancements (§ 667, subd. (a)). The court appointed defendant counsel and set the matter for a hearing. After the hearing, the court stated it was “not going to exercise [its] discretion,” it was “leaving the sentence in play as originally sentenced,” and it “denied” the “motion.” Defendant now appeals from the trial court’s order asserting the court erred in denying recall and…