People v. Cruz, 2d Crim. No. B276571

CourtCalifornia Court of Appeals
Writing for the CourtYEGAN, J.
Citation224 Cal.Rptr.3d 77,15 Cal.App.5th 1105
Parties The PEOPLE, Plaintiff and Respondent, v. Juan Alexander CRUZ, Defendant and Appellant.
Docket Number2d Crim. No. B276571
Decision Date03 October 2017

15 Cal.App.5th 1105
224 Cal.Rptr.3d 77

The PEOPLE, Plaintiff and Respondent,
v.
Juan Alexander CRUZ, Defendant and Appellant.

2d Crim. No. B276571

Court of Appeal, Second District, Division 6, California.

Filed October 3, 2017


Larry Pizarro, Staff Attorney, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill, David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

YEGAN, J.

15 Cal.App.5th 1108

Juan Alexander Cruz, a three strikes offender, was sentenced to 26.5 years to life in state prison. He appeals a postjudgment order denying his petition to recall his sentence pursuant the Three Strikes Reform Act of 2012 (the Act), also known as Proposition 36. ( Pen. Code, § 1170.126, subd. (e)(2) ; People v. Estrada (2017) 3 Cal.5th 661, 665, 220 Cal.Rptr.3d 801, 399 P.3d 27.)1 The trial court found that appellant was ineligible for resentencing because he was armed with a knife during the commission of the felony offense. (§§ 1170.12, subd. (c)(2)(C)(iii); 1170.126, subd. (e)(2).) As we shall explain, there is a crucial difference between being "armed" with a knife and "use" of a knife. Thus, a prior jury determination that appellant did not use a knife is not determinative. We are quick to observe that appellant did not receive a favorable factual ruling at his jury trial that he was not armed with a knife during the commission of the underlying felony conviction of false imprisonment by violence. We affirm.

Initial Trial, Conviction, Sentence, and Appeal

In 2001, appellant was convicted by jury of false imprisonment by violence after he forced his way into a single mother's (L.S.) home, clutched her two-year-old son, and threatened to rape him. L.S. begged appellant to let the boy go free. Appellant grabbed a kitchen knife, punched L.S. in the head, and tried to stab her in the stomach. He had ready access to other knives as well.

15 Cal.App.5th 1109

Appellant ordered L.S. to her knees, struck her several times with his fists, and forced her to disrobe and lie down. Appellant then ran the kitchen knife between the victim's legs and asked how she would feel if he put the knife into her.

224 Cal.Rptr.3d 79

L.S. escaped when appellant was taking off his backpack.

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

15 Cal.App.5th 1110

having a firearm [or weapon] available for use, either offensively or defensively. [Citations.]" ( People v. Osuna (2014) 225 Cal.App.4th 1020, 1029, 171 Cal.Rptr.3d 55 ( Osuna ).) It is the availability of and ready access to the weapon that constitutes arming. ( People v. Bland (1995) 10 Cal.4th 991, 997, 43 Cal.Rptr.2d 77, 898 P.2d 391 ( Bland ); People v. White (2014) 223 Cal.App.4th 512, 524, 167 Cal.Rptr.3d 328.) In ruling on a petition for resentencing, the trial court may consider the entire record of conviction including the transcript of the trial testimony and the appellate opinion affirming the judgment of conviction. ( People v. Woodell (1998) 17 Cal.4th 448, 456, 71 Cal.Rptr.2d 241, 950 P.2d 85 ; People v. Blakely (2014) 225 Cal.App.4th 1042, 1063, 171 Cal.Rptr.3d 70 ( Blakely ).) "[A] trial court may deny resentencing under the Act on the basis of facts underlying previously dismissed counts." ( People v. Estrada , supra , 3 Cal.5th at p. 665, 220 Cal.Rptr.3d 801, 399 P.3d 27.)

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

224 Cal.Rptr.3d 80

the conviction and may not relitigate the circumstances of the crime. Guerrero is inapposite and deals with evidence bearing on an increase in punishment, such as whether a prior conviction is a serious felony. ( Id. at pp. 355–356, 243 Cal.Rptr. 688, 748 P.2d 1150.) In a Proposition 36 resentencing proceeding, the trial court does not consider an increase in punishment, but only whether the convicted defendant is entitled to a reduction in punishment.

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 (2...

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58 practice notes
  • People v. Clayton, B308524
    • United States
    • California Court of Appeals
    • 2 Julio 2021
    ...B143748) (Clayton ), as well as the record of appellant's conviction, of which we have taken judicial notice. (People v. Cruz (2017) 15 Cal.App.5th 1105, 1110, 224 Cal.Rptr.3d 77 [appellate opinion is part of the record of conviction].)3 Those conditions are: (1) the charging document "allo......
  • People v. Davis, E074748
    • United States
    • California Court of Appeals
    • 17 Agosto 2021
    ...the transcript of the trial testimony and the appellate opinion affirming the judgment of conviction.” (People v. Cruz (2017) 15 Cal.App.5th 1105, 1110, citing People v. Woodell (1998) 17 Cal.4th 448, 456; People v. Blakely (2014) 225 Cal.App.4th 1042, 1063.) [6] At defendant's request, we ......
  • People v. Byers, B295235
    • United States
    • California Court of Appeals
    • 25 Agosto 2020
    ...and the underlying felony." ( People v. Hicks , supra , 231 Cal.App.4th at p. 284, 179 Cal.Rptr.3d 703 ; accord, People v. Cruz (2017) 15 Cal.App.5th 1105, 1111–1112, 224 Cal.Rptr.3d 77.) Thus, a defendant is armed with a weapon even if it is not on his person if he knows it is in a place r......
  • People v. Kook, B269823
    • United States
    • California Court of Appeals
    • 12 Diciembre 2017
    ...of the facts established by the judgment of conviction. (Estrada, supra, 3 Cal.5th at p. 672; see also People v. Cruz (2017) 15 Cal.App.5th 1105, 1110 [citing Estrada, "Guerrero does not preclude a Proposition 36 court from considering facts not encompassed within the judgment of conviction......
  • Request a trial to view additional results
58 cases
  • People v. Clayton, B308524
    • United States
    • California Court of Appeals
    • 2 Julio 2021
    ...B143748) (Clayton ), as well as the record of appellant's conviction, of which we have taken judicial notice. (People v. Cruz (2017) 15 Cal.App.5th 1105, 1110, 224 Cal.Rptr.3d 77 [appellate opinion is part of the record of conviction].)3 Those conditions are: (1) the charging document "allo......
  • People v. Davis, E074748
    • United States
    • California Court of Appeals
    • 17 Agosto 2021
    ...the transcript of the trial testimony and the appellate opinion affirming the judgment of conviction.” (People v. Cruz (2017) 15 Cal.App.5th 1105, 1110, citing People v. Woodell (1998) 17 Cal.4th 448, 456; People v. Blakely (2014) 225 Cal.App.4th 1042, 1063.) [6] At defendant's request, we ......
  • People v. Byers, B295235
    • United States
    • California Court of Appeals
    • 25 Agosto 2020
    ...and the underlying felony." ( People v. Hicks , supra , 231 Cal.App.4th at p. 284, 179 Cal.Rptr.3d 703 ; accord, People v. Cruz (2017) 15 Cal.App.5th 1105, 1111–1112, 224 Cal.Rptr.3d 77.) Thus, a defendant is armed with a weapon even if it is not on his person if he knows it is in a place r......
  • People v. Kook, B269823
    • United States
    • California Court of Appeals
    • 12 Diciembre 2017
    ...of the facts established by the judgment of conviction. (Estrada, supra, 3 Cal.5th at p. 672; see also People v. Cruz (2017) 15 Cal.App.5th 1105, 1110 [citing Estrada, "Guerrero does not preclude a Proposition 36 court from considering facts not encompassed within the judgment of conviction......
  • Request a trial to view additional results

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