Brimmer

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). (Pen. Code, § 1170.126.) On appeal, the People contend that the trial court erred in finding defendant eligible for resentencing under the Act because during the commission of the offense, defendant used and was armed with a firearm. For the reasons explained below, we will reverse the trial court’s order.

I

FACTUAL AND PROCEDURAL BACKGROUND

On July 4, 1997, an Independence Day party occurred at the apartment complex in which defendant, his common law wife, Claudette Walters, and his infant daughter resided. Both defendant and his wife were drinking. During the course of the party, defendant and Walters got into an argument. Apparently, defendant was angry at Walters for agreeing to let a friend’s pit bull live in the apartment without consulting him first, as he was concerned about his daughter’s safety. Kutrina Farris, a neighbor, saw defendant and Walters arguing in front of the building. Then defendant took his daughter and left.…