People v. Cruz

The jury convicted appellant of false imprisonment by violence (§ 236) and misdemeanor assault. It acquitted on the remaining counts for residential burglary (§ 459), assault with a deadly weapon (ADW, § 245, subd. (a)(1)), and assault with intent to commit a rape (§ 220). On the false imprisonment conviction by violence, the jury returned a not true finding that appellant personally used a knife. (§ 12022, subd. (b)(1).) Appellant admitted two prior strike convictions for robbery (§ 667, subds. (b)-(i)), and a prior prison term enhancement (§ 667.5, subd. (b)). As indicated, he was sentenced 26.5 years to life. We affirmed the conviction in an unpublished opinion. ( People v. Cruz (Oct. 16, 2001, B148978) [nonpub. opn.].)

Petition to Recall Sentence

Appellant filed a petition to recall his sentence. Denying the petition, the trial court stated that it "has no trouble in finding, beyond a reasonable doubt, ... that [appellant] was armed with a deadly weapon, to wit, a knife, during the commission of the commitment offense, thereby rendering himself ineligible for relief under the Reform Act. ( § 1170.126, subd. (e)(2).) Not only was the knife readily accessible for offensive or defense use, it is clear [appellant] used it as a weapon to ensure [the victim's] submission during the false imprisonment. [Citation.]"

Armed With a Weapon

Section 1170.126 provides that an inmate serving a Three Strikes sentence may be eligible for resentencing where the current felony conviction is not a serious or violent felony. ( People v. Johnson (2015) 61 Cal.4th 674 , 682, 189 Cal.Rptr.3d 794 , 352 P.3d 366 .) If the statutory eligibility criteria are satisfied and no exclusion applies, the trial court then determines whether imposition of a two-strike determinate term would pose an unreasonable risk of danger to public safety, and resentences the inmate accordingly. ( § 1170.126, subd. (f) ; People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 1279 , 1293, 155 Cal.Rptr.3d 856 .)

An inmate is statutorily ineligible for resentencing if "[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§ 1170.12, subd. (c)(2)(C)(iii).) " '[A]rmed with a firearm' [or weapon] has been statutorily defined and judicially construed to mean

In ruling on a section 1170.126 petition for resentencing, "a trial court determining eligibility for resentencing ... is not limited to a consideration of the elements of the current offense and the evidence that was presented at the trial (or plea proceedings) at which the defendant was convicted. Rather, the court may examine relevant, reliable, admissible portions of the record of conviction to determine the existence or nonexistence of disqualifying factors. [Citation.]" ( Blakely , supra , 225 Cal.App.4th at p. 1063, 171 Cal.Rptr.3d 70 ; accord, e.g., People v. Burnes (2015) 242 Cal.App.4th 1452 , 1458, 195 Cal.Rptr.3d 903 ; People v. Hicks (2014) 231 Cal.App.4th 275 , 286, 179 Cal.Rptr.3d 703 ( Hicks ); People v. Bradford (2014) 227 Cal.App.4th 1322 , 1327, 174 Cal.Rptr.3d 499 .) Guerrero does not preclude a Proposition 36 court from considering facts not encompassed within the judgment of conviction. ( People v. Estrada , supra , 3 Cal.5th at p. 672, 220 Cal.Rptr.3d 801 , 399 P.3d 27 .)

Appellant's reliance on People v. Wilson (2013) 219 Cal.App.4th 500 , 162 Cal.Rptr.3d 43 ( Wilson ) is misplaced. There, the court held that, under Apprendi v. New Jersey (2000) 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 ( Apprendi ), trial courts may not impose a sentence enhancement based on their own independent resolution of a disputed factual issue regarding defendant's prior conviction. ( Wilson , at pp. 515-516, 162 Cal.Rptr.3d 43 .) Apprendi has no bearing on sentence reduction, and holds, under the Sixth Amendment, "any

Knife Use Enhancement

Appellant argues that the jury's not true finding on the knife use enhancement (§ 12022, subd. (b)(1)) establishes eligibility for resentencing. This enhancement applies only if the knife had a facilitative nexus in the commission of the offense. ( Bland, supra, 10 Cal.4th at pp. 1001-1003, 43 Cal.Rptr.2d 77 , 898 P.2d 391 ; People v. Brimmer (2014) 230 Cal.App.4th 782 , 794-795, 178 Cal.Rptr.3d 857 .) Proposition 36 turns on whether the defendant was armed " during the commission of the current offense" (§ 1170.12, subd. (c)(2)(C)(iii)), which is different than a sentence enhancement for use of a weapon " in the commission " of the offense. (§ 12022, subd. (b)(1).) " 'During' is variously defined as 'throughout the continuance or course of' or 'at some point in the course of.' [Citation.] In other words, it requires a

Relying on People v. Guerrero (1988) 44 Cal.3d 343 , 243 Cal.Rptr. 688 , 748 P.2d 1150 ( Guerrero ), appellant argues that the court is limited to the facts established by

Prior Acquittal on Assault with a Deadly Weapon

Appellant argues that the jury acquitted on the ADW count. But that is not dispositive of whether he was armed during the commission of the false imprisonment. Arming "requires a temporal nexus between the arming and the underlying felony, not a facilitative one. The two are not the same. [Citation.]" ( Osuna , supra , 225 Cal.App.4th at p. 1032, 171 Cal.Rptr.3d 55 .) "A defendant is armed if the defendant has the specified available weapon for use, either offensively or defensively. [Citations.]" ( Bland , supra , 10 Cal.4th at p. 997, 43 Cal.Rptr.2d 77 , 898 P.2d 391 ; Blakely , supra , 225 Cal.App.4th at p. 1051, 171 Cal.Rptr.3d 70 ; Osuna , at p. 1029, 171 Cal.Rptr.3d 55 .) " '[I]t is the availability-the ready access-of the weapon that constitutes arming.' [Citation.]" ( Bland , at p. 997, 43 Cal.Rptr.2d 77 , 898 P.2d 391 .)

Appellant had a kitchen knife and struggled with the victim while holding it. He was "armed" with a knife. The record shows that appellant had ready access to more than one knife for offensive or defensive

" '[I]n the commission' of the felony offense, ... implicitly requires both that the 'arming' take place during the underlying crime and that it have some ' facilitative nexus ' to that offense." ( Bland , supra , 10 Cal.4th at p. 1002, 43 Cal.Rptr.2d 77 , 898 P.2d 391 .) As explained in Osuna , supra, 225 Cal.App.4th at page 1032, 171 Cal.Rptr.3d 55 , the difference in language is significant. "Since the Act uses the phrase '[d]uring the commission of the current offense,' and not in the commission of the current offense (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the imposition of additional punishment but rather eligibility for reduced punishment, we conclude the literal language of the Act disqualifies an inmate from resentencing if he or she was armed with a [knife] during the [false imprisonment]." ( Osuna , at p. 1032, 171 Cal.Rptr.3d 55 .) Because Proposition 36 looks to whether appellant was armed "during" the false imprisonment rather than "in the commission of it," the not true finding on the weapon use enhancement does not render appellant eligible for resentencing.

The Proposition 36 trial court did mention that appellant "used" the knife during the false imprisonment. This may be factually true but the observation is at variance with the prior jury determination. The trial court's choice of the word, "used," was superfluous. Its choice of the word "armed" is determinative. (See ante , p. 79-80.)

Disposition

The judgment (order denying Proposition 36 resentencing relief) is affirmed.

We concur:

GILBERT, P. J.

PERREN, J.