Filed 6/27/16 P. v. Cotton CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B260222

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA031646)
         v.

DUANE COTTON,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed.
         California Appellate Project, Jonathan B. Steiner and Richard B. Lennon for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy District Attorney General, Noah P. Hill and Garett A. Gorlitsky,
Deputies Attorney General for Plaintiff and Respondent.
       Defendant Duane Cotton (defendant) is serving a Three Strikes life sentence
following his 1998 felony conviction for eavesdropping in violation of Penal Code1
section 632. In December 2012, defendant filed a petition for recall of sentence pursuant
to section 1170.126, which was enacted as part of Proposition 36. The trial court denied
the petition, finding defendant ineligible for resentencing because he was armed with a
deadly weapon during the commission of the underlying offense. Defendant challenges
that finding, contending that the court improperly relied on portions of the trial transcripts
that he argues are unconnected to the sole count on which the jury found him guilty. We
consider what evidence constitutes the record of conviction for purposes of assessing an
inmate’s eligibility for resentencing under section 1170.126, and whether that record
supports the trial court’s finding of ineligibility in this case.


                                       BACKGROUND
                                   I. The Offense Conduct2
       An eight count amended information filed in February 1998 charged defendant
with committing multiple criminal acts against his former fiancé, Jeannette M., including
stalking, forced oral copulation, assault with a taser, eavesdropping with an electronic
recording device during a confidential communication, and two counts each of making
terrorist threats and misdemeanor vandalism. The information alleged defendant had
suffered three prior convictions for robbery within the meaning of section 1170.12,
subdivision (a) and section 667, subdivisions (b) through (i) (the Three Strikes law).
More relevant for our purposes, the forced oral copulation count of the information
included an allegation that defendant was armed with a box cutter during the commission
of the offense. (§ 12022.3 [sentence enhancement for a person armed with a firearm or


1
       All undesignated statutory references that follow are to the Penal Code.
2
       We take the following factual summary from the trial court’s memorandum of
decision on defendant’s petition for recall of sentence and our opinion in defendant’s
appeal from his conviction. (People v. Cotton (July 12, 1999, B121762) [nonpub. opn.].)
                                              2
deadly weapon during the commission of the offense].) Defendant pled not guilty and
denied the special allegations. Trial was to a jury.
       At trial, Jeannette M. testified about her relationship with defendant and the
events that resulted in the criminal charges against him. Jeannette M. stated that she
began dating defendant in 1994. The couple eventually moved in together, and they got
engaged in 1996. According to Jeannette M., after they decided to get married, defendant
became “possessive, insecure, and jealous.” When Jeannette M. told defendant she
wanted to end the relationship, he held a knife to her throat and threatened to “beat [her]
ass until [her] mother didn’t know who [she] was.” Defendant moved out of their home
in November of 1996. The two continued to have confrontations, causing Jeannette M. to
obtain a restraining order against defendant; she was unable, however, to successfully
serve him with the order.
       On December 4, 1996, defendant asked Jeannette M. to come to his sister’s
apartment to retrieve some paperwork involving their home. Jeannette M. reluctantly
agreed. Jeannette M. testified that upon entering the living room, defendant slammed the
door shut and locked it. Defendant grabbed Jeannette M. by the neck, pulled out a box
cutter, and threatened to “beat [her] ass.” Holding the box cutter to Jeannette M.’s throat,
defendant threatened to “slash [her] up.” He then ordered Jeannette M. to remove her
clothes and “wash up” in the bathroom. Defendant told Jeannette M. he wanted her to
fulfill his sexual fantasies and he had Jeannette M. state into a voice recorder that she was
acting of her own free will. Jeannette M. complied and proceeded into the bedroom
where she orally copulated him. Unbeknownst to Jeannette M., defendant recorded the
sexual encounter in the bedroom with a videocamera.
       Jeannette M. eventually escaped from the apartment. She screamed for help and
asked a neighbor to call the police. Monrovia Police Department Officer Manuel
responded to a call regarding the foregoing incident.
       Jeannette M. initially told Officer Manuel that defendant had forced her to undress
and held her against her will. Later, Jeannette M. informed the officer that defendant

                                              3
held a box cutter to her neck. The officer cursorily searched the apartment but did not
find a box cutter. Jeannette M. refused to answer most of the questions asked by the
officer while he was investigating the call, including whether she had sex with defendant
in the apartment. Officer Manuel did not write a police report regarding the incident
because he did not believe he was getting the whole story.
       W.R. Ireland, a detective with the Pasadena Police Department, testified she was
assigned to investigate the case. On March 24, 1997, pursuant to a search warrant,
Detective Ireland searched the apartment where the incident occurred. The detective
recovered a wallet containing a box cutter from a closet shelf. The box cutter was shown
to the jury and admitted into evidence during trial.
       Defendant testified in his defense. He admitted to surreptitiously videotaping the
sexual encounter with Jeannette M., claiming he did so in order to defend himself if
Jeannette M. later claimed the sexual interaction was not consensual. Defendant denied
committing the other charged crimes and specifically denied threatening Jeannette M.
with the box cutter. Defendant also testified he carried a box cutter in his wallet because
he used it to unwrap boxes while working as a truck driver for a food distribution
company.


                        II. Defendant’s Conviction and Sentencing
       The jury convicted defendant of electronic eavesdropping on a confidential
communication, acquitted him of vandalizing Jeannette M.’s car tires, and hung on all the
other counts charged in the information. Because the jury did not reach a verdict on the
forcible oral copulation count, it did not consider the charged allegation that defendant
was armed with a box cutter in the commission of that offense, and thus made no finding
on that issue one way or the other. The court declared a mistrial on the counts on which
the jury hung, and later dismissed those counts.
       At defendant’s sentencing hearing, the trial court stated, “This was not simply a
videotaping of a confidential communication, but this was a videotaping that was done

                                             4
with a weapon. I’m going to find that Mr. Cotton did in fact use the knife in the other
room of the apartment.” The court continued, “I’m aware of the fact the jury did not
unanimously agree that a forcible oral copulation took place. I’m not necessarily stating
here that I believe beyond a reasonable doubt that the forcible oral copulation took place.
But there was an act of violence committed by Mr. Cotton upon Ms. Jeannette [M.] with
a weapon that lead to Ms. [M.] going into the bedroom. That is part of the crime here,
the videotaping. That is what got her into the bedroom in the first place, and those are the
facts that I believe based upon the evidence that I heard.” The court sentenced defendant
to a term of 26 years to life in prison, consisting of 25 years to life under the Three
Strikes law for eavesdropping, plus one year for one prior prison term. This Court
subsequently affirmed the conviction and sentence. (People v. Cotton (July 12, 1999,
B121762) [nonpub. opn.].)


                          III. The Petition for Recall of Sentence
       In November 2012, California voters approved Proposition 36, the Three Strikes
Reform Act of 2012 (the “Act”). The Act permits a person serving an indeterminate life
sentence under the Three Strikes law for conviction of a felony or felonies that are not
defined as serious and/or violent under section 667.5, subdivision (c), or section 1192.7,
subdivision (c) to file a petition for recall of sentence. (§ 1170.126.) However, a third
strike defendant is not eligible 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.” (§§ 667, subd.
(e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).)
       Shortly after the passage of Proposition 36, defendant filed a petition for recall of
sentence, seeking resentencing as a second strike offender. The People opposed the
petition, contending that defendant was ineligible for resentencing because he was armed
with a deadly weapon, the box cutter, during the commission of the eavesdropping
offense.

                                              5
       The trial court held a hearing on the question of whether defendant was eligible for
a Proposition 36 recall of sentence. The court admitted into evidence transcripts of
defendant’s trial, his medical records, and Department of Corrections and Rehabilitation
reports documenting defendant’s record of good conduct in prison. The court heard
argument from both parties and took the matter under submission.
       The trial court issued a decision on the sentence recall petition in which it found,
pursuant to section 1170.12, subdivision (c)(2)(C)(iii) and section 667, subdivision
(e)(2)(C)(iii), that defendant was armed with a deadly weapon during the commission of
the eavesdropping offense of conviction. The court relied on Jeannette M.’s testimony
that defendant held a box cutter to her throat, threatened to “slash [her] up,” and told her
that she was going to fulfill his sexual fantasies. The court also relied on Detective
Ireland’s recovery of the box cutter from defendant’s wallet. The court did not credit
defendant’s claim that he carried the box cutter in his wallet for his job, stating: “the
weight given to [his] testimony is not significant in light of his incentive to testify
dishonestly at his own trial. The record identifies no such incentive for [Jeannette
M.] . . . ” The court concluded, “Based on the totality of the evidence elicited at trial, the
court finds it is more likely than not that [defendant] had ready access to the box cutter
for offensive or defensive use at the time he lured [Jeannette M.] into the bedroom where
the electronic eavesdropping took place. . . . ” Based on its findings, the court held
defendant ineligible for resentencing under section 1170.126, subdivision (e)(2) and
denied his petition.


                                       DISCUSSION
       A violation of section 632, the offense that triggered defendant’s Three Strikes
sentence, is not enumerated in the statutory list of serious and violent felony offenses for
which resentencing is barred under Proposition 36. (See §§ 667, subd. (e)(2)(C), 667.5,
subd. (c), 1170.12, subd. (c)(2)(C), 1192.7, subd. (c).) Under section 1170.126,
subdivision (e)(2), a defendant is nevertheless ineligible for resentencing if, “[d]uring the

                                               6
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.”
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
         Unlike the ultimate determination of whether an otherwise eligible petitioner
should be resentenced, the eligibility determination required by subdivision (e)(2) is not a
determination the trial court makes as a matter of discretion. (People v. Bradford (2014)
227 Cal.App.4th 1322, 1336.) The Act provides that “the court shall determine whether
the petitioner satisfies the criteria in subdivision (e). . . . ” (§ 1170.126, subd. (f).) And
because the Act fixes ineligibility not on statutory violations or enhancements but on
“facts attendant to commission of the actual offense, the express statutory language
requires the trial court to make a factual determination that is not limited by a review of
the particular statutory offenses and enhancements of which petitioner was convicted.”
(People v. Bradford, supra, at p. 1332.) “[D]isqualifying factors need not be pled and
proved to a trier of fact beyond a reasonable doubt; hence, a trial court determining
whether an inmate is eligible for resentencing under section 1170.126 may examine
relevant, reliable, admissible portions of the record of conviction to determine the
existence of a disqualifying factor.” (People v. Blakely (2014) 225 Cal.App.4th 1042,
1048-1049.) For this purpose, the record of conviction includes pleadings, trial
transcripts, pretrial motions, and any appellate opinion. (See, e.g., People v. White
(2014) 223 Cal.App.4th 512; People v. Osuna (2014) 225 Cal.App.4th 1020, 1027, 1030;
People v. Manning (2014) 226 Cal.App.4th 1133, 1140-1141.) “[A] trial court need only
find the existence of a disqualifying factor by a preponderance of the evidence. (Evid.
Code, § 115; see [People v. Superior Court (Kaulick) (2013)] 215 Cal.App.4th [1279,]
1305[] [addressing determination of dangerousness].)” (People v. Osuna, supra, at p.
1040.)
         Defendant challenges the trial court’s finding of ineligibility on two grounds: He
contends that the court erred by not limiting its review solely to what he believes is the



                                               7
factual basis for the eavesdropping offense, and that, in any event, there is insufficient
evidence to support the finding that he was armed during the commission of that offense.


       1.     The record of conviction
       Defendant relies on People v. Wilson (2013) 219 Cal.App.4th 500, People v.
Guerrero (1988) 44 Cal.3d 343, and People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo) to
contend that the trial court erred in relying on those portions of the reporter’s transcript of
his trial that he views as unrelated to the eavesdropping count on which the jury
convicted. According to defendant, “where a case involves factual disputes that the trier
of fact did not have to resolve to reach its verdict, a court cannot later make findings of
such disputed facts to determine that the crime involved conduct making it a serious
felony.” However, none of the cited cases support his argument. Rather, cases reviewing
eligibility findings under the Act have consistently held, based on the language of the Act
itself, that the trial court is to review the entire record of conviction to determine whether
the defendant was armed during the commission of the conviction offense. (See, e.g.,
People v. Bradford, supra, 227 Cal.App.4th at p. 1338; People v. Blakely, supra, 225
Cal.App.4th at pp. 1048-1049.) Here, the record of conviction supports the trial court’s
finding that the presence of the box cutter in the living room was temporally connected to
defendant’s commission of the eavesdropping offense and indeed facilitated it; the box
cutter persuaded Jeannette M. to comply with defendant’s instructions to go to the
bedroom, where she was unwittingly videotaped.
       People v. Wilson, supra, 219 Cal.App.4th 500, is not a Proposition 36 recall of
sentence case and it does not support the claim that the trial court conducted too broad an
examination of the evidence at trial. In Wilson, the appellate court held that a trial court’s
resolution of a factual issue, namely whether the offense involved personal infliction of
great bodily injury, violated Wilson’s Sixth Amendment rights pursuant to the holding of
Apprendi v. New Jersey (2000) 530 U.S. 466. Unlike the situation in People v. Wilson,
where the trial court’s finding was used to increase Wilson’s sentence, defendant’s

                                              8
eligibility for a lesser sentence based on the trial court’s factual determination does not
implicate the holding of Apprendi. (People v. Osuna, supra, 225 Cal.App.4th at p. 1039
[“Apprendi and its progeny do not apply to a determination of eligibility for resentencing
under the Act”]; see also Dillon v. United States (2010) 560 U.S. 817, 828-829
[defendant’s right to have essential facts found by jury beyond a reasonable doubt do not
apply to downward sentence modifications due to intervening laws].)
         In People v. Guerrero, supra, 44 Cal.3d 343, the Supreme Court held that a trial
court may examine the entire record of a prior conviction to determine the existence of a
fact which is not established by the conviction itself. The Supreme Court “held that in
determining the truth of a prior conviction allegation, the trier of fact may ‘look beyond
the judgment to the entire record of the conviction’ (id. at p. 356) ‘but no further’ (id. at
p. 355).” (Trujillo, supra, 40 Cal.4th at p. 177.) Defendant argues that the trial court
here did go further by, in his words, looking beyond the “evidence which shows the
nature of defendant’s conduct underlying the conviction.” Any suggestion, however, that
the trial court could not consider the box cutter evidence because it was not alleged in
connection with the criminal eavesdropping count or because the jury did not reach the
question of whether defendant was armed with the box cutter is not well taken. An
ineligibility finding need not be based on allegations pled and proved in the underlying
action. (People v. Blakely, supra, 225 Cal.App.4th at pp. 1058-1063 [disqualifying
factors need not be pled and proved to a trier of fact]; accord People v. White, supra, 223
Cal.App.4th at pp. 526-527; People v. Osuna, supra, 225 Cal.App.4th at pp. 1033-1035.)
If defendant was in fact armed with a deadly weapon during the commission of the
eavesdropping, it is immaterial that the prosecution did not seek a finding to that effect at
trial.
         Defendant points, however, to our Supreme Court’s statement in Trujillo, that
“‘the relevant inquiry . . . is limited to an examination of the record of the prior criminal
proceeding to determine the nature or basis of the crime of which the defendant was
convicted.’” (Trujillo, supra, 40 Cal.4th at p. 179, quoting People v. McGee (2006) 38

                                              9
Cal.4th 682, 691.) Defendant’s reliance on Trujillo, which also is not a Proposition 36
resentencing case, is misplaced.
       In Trujillo, the prosecution asserted Trujillo’s prior conviction for inflicting
corporal injury was a qualifying strike. The prosecution argued that the offense was a
serious felony within the meaning of the Three Strikes law because Trujillo personally
used a dangerous or deadly weapon in the commission of the offense. (40 Cal.4th at
pp. 169-170.)
       The documents that the People relied on to prove the prior conviction indicated
that the infliction of corporal injury charge included an allegation that Trujillo had
personally used a deadly and dangerous weapon in the commission of the offense. He
was concurrently charged with assault with a deadly weapon, a knife. The record of
conviction further revealed that, pursuant to a plea bargain, Trujillo pled guilty to
inflicting corporal injury, while the weapon allegation and assault charge were dismissed.
After Trujillo pled guilty, however, he admitted using the knife in an interview with a
probation officer, and the officer documented his statement in a pre-sentencing probation
report. The prosecutor relied on the report to argue that the conviction for inflicting
corporal injury was a serious felony, and thus a prior strike. (Trujillo, supra, 40 Cal.4th
at pp. 170-171.) Noting that Trujillo was convicted only of inflicting corporal injury,
defense counsel argued that “whatever he said in the probation report is not relevant and
not something the Court can look at because it undermines the conviction itself.” (Id. at
p. 171.) The trial court ruled that the prior conviction was not a strike.
       The Supreme Court agreed, explaining: “A statement by the defendant recounted
in a postconviction probation officer’s report does not necessarily reflect the nature of the
crime of which the defendant was convicted. In the present case, for example, the
prosecution did not attempt to prove that defendant used a knife and, instead, entered into
a plea bargain in which it dismissed the allegation that defendant used a deadly or
dangerous weapon and committed an assault with a deadly weapon. The prosecution
could not have compelled defendant to testify, and thus could not have used defendant’s

                                             10
subsequent admission that he stabbed the victim to convict him. Once the court accepted
his plea, defendant could admit to the probation officer having stabbed the victim without
fear of prosecution, because he was clothed with the protection of the double jeopardy
clause from successive prosecution for the same offense. [Citation.] Defendant’s
admission recounted in the probation officer’s report, therefore, does not describe the
nature of the crime of which he was convicted and cannot be used to prove that the prior
conviction was for a serious felony.” (Trujillo, supra, 40 Cal.4th at p. 179.)
       Trujillo is inapposite here. The Supreme Court ruled that Trujillo’s postconviction
statement to the probation officer was not part of the record of conviction because, at the
time of the admission, Trujillo had already pled guilty to the charge of inflicting corporal
injury, and the court had dismissed, pursuant to the terms of the plea agreement, all
allegations concerning Trujillo’s use of a knife in the commission of the conviction
offense. Because a guilty plea constitutes a conviction for purposes of sentence
enhancement (People v. Laino (2004) 32 Cal.4th 878, 882), Trujillo’s admission “was
made after [he] was convicted and does not reflect the facts upon which he was
convicted.” (Trujillo, supra, 40 Cal.4th at p. 180.) This holding does not help defendant,
since all of the evidence upon which the trial court relied in making its eligibility
determination was entered into the record prior to his conviction for eavesdropping.
       Nor does the Fourth District Court of Appeal’s decision in People v. Berry (2015)
235 Cal.App.4th 1417 aid defendant. People v. Berry is a Proposition 36 resentencing
case, one in which the defendant pled guilty to charges of possession of a fraudulent
check and possession of a forged driver’s license. In exchange for the defendant’s guilty
pleas, the prosecution agreed to dismiss the remaining counts, including felon in
possession of a firearm, felon carrying a loaded firearm in a vehicle, and possession of
methamphetamine with a firearm. (Id. at pp. 1421, 1426.) The court of appeal concluded
the trial court should not have considered the preliminary hearing testimony of police
officers who had observed Berry opening the trunk of a car which contained a loaded gun



                                             11
and should not have used that testimony to conclude the defendant was ineligible to seek
recall of his sentence. (Id. at pp. 1421-1422.)
         The Berry court stated it is “well-settled under California law that in cases
involving plea agreements, it is ‘improper and unfair to permit the sentencing court to
consider any of the facts underlying [a] dismissed count . . . for purposes of aggravating
or enhancing defendant’s sentence. [Citation.]” (Id. at p. 1426.) The court recognized
that the trial court’s consideration of the police officers’ preliminary hearing testimony
“might have been appropriate in a case where the defendant’s conviction and sentence
were based—at least in part—on his possession of a firearm [citations]” but the appellate
court believed “it was not appropriate . . . where all allegations involving firearm
possession were dismissed as part of defendant’s plea agreement.” (Id. at p. 1426.)
Because the evidence that Berry was in possession of a firearm was “wholly unrelated” to
the charges on which he was convicted, the court of appeal concluded that “the trial court
went outside defendant’s ‘record of conviction’ when it based its assessment of
defendant’s eligibility for resentencing on evidence of firearm possession. . . . ” (Id. at p.
1427.)
         Unlike the facts in People v. Berry, where Berry’s conviction and sentence were in
no way based on his possession of a firearm, the sentencing court in this case expressly
found that defendant used the box cutter to facilitate the eavesdropping. The court
hearing defendant’s sentence recall petition made the factual finding that defendant was
armed in the commission of the conviction offense. Also unlike Berry, defendant did not
plead guilty to the underlying offense of eavesdropping, nor did the prosecution agree to
dismiss the seven additional criminal counts in exchange for a guilty plea; those were
litigated at trial.
         At bottom, defendant cites no case that holds that a court’s review of the
proceedings at trial to determine eligibility under the Act is error, and for good reason.
We can discern no other way in which the court may perform the function assigned to it
by the Act, that is, “to make a factual determination that is not limited by a review of the

                                               12
particular statutory offenses and enhancements of which petitioner was convicted.”
(People v. Bradford, supra, 227 Cal.App.4th at p. 1332.) We conclude that the portions
of the trial transcripts that the trial court relied on were part of the record of conviction
for purposes of determining defendant’s eligibility for resentencing under the Act, and
that the trial court was authorized to make findings concerning facts disputed at trial,
including determinations as to the credibility of the witnesses, based upon its review of
that record.


       2.      The sufficiency of the evidence
       Defendant also contends that the record of the trial does not support the court’s
finding that he was armed during the commission of the eavesdropping offense. Rather,
he maintains that the record “demonstrates that defendant was not armed at any time
during the videotaping-eavesdropping crime.”
       “A defendant is armed if the defendant has the specified weapon available for use,
either offensively or defensively.” (People v. Bland (1995) 10 Cal.4th 991, 997.) “[I]t is
the availability—the ready access—of the weapon that constitutes arming.” (Ibid.; see
also People v. White, supra, 223 Cal.App.4th at p. 524.) “The Act disqualifies an inmate
from eligibility for lesser punishment if he or she was armed with a firearm ‘during the
commission of’ the current offense (italics added). ‘During’ is variously defined as
‘throughout the continuance or course of’ or ‘at some point in the course of.’ (Webster’s
3d New Internat. Dict. (1986) p. 703.) In other words, it requires a temporal nexus
between the arming and the underlying felony, not a facilitative one.” (People v. Osuna,
supra, 225 Cal.App.4th at p. 1032.)
       Here, the record supports not only a temporal connection between the box cutter
and the eavesdropping but even a facilitative one. Although defendant did not take the
box cutter with him into the bedroom, he had ready access to it during the entire time
Jeannette M. was in the apartment, providing a temporal nexus between the crime and the
arming. Moreover, Jeannette M. testified that defendant used the box cutter to get her to

                                              13
the bedroom where he surreptitiously recorded the sexual encounter. This testimony
establishes a facilitative nexus between the arming and the offense. There is therefore
ample evidence to support the trial court’s conclusion that defendant was armed with the
box cutter “during the commission of” the predicate felony. (People v. Bland, supra, 10
Cal.4th at p. 997; People v. Osuna, supra, 225 Cal.App.4th at p. 1032.)
       Defendant argues, however, that he disputed Jeannette M.’s testimony at trial,
including her testimony about his possession and use of the box cutter. He maintains that
“[t]he jury resolved this credibility contest against the victim, convicting [defendant] only
of the crime which he admitted, and acquitting him of everything else.” That is
inconsistent with the record. The jury did not acquit defendant on the additional charges
of forcible oral copulation and terrorist threats; rather, the jury did not reach a verdict on
those charges. The absence of a jury determination is not dispositive. As noted above,
defendant is not entitled to have a jury decide, beyond a reasonable doubt, his eligibility
for a reduced sentence. A trial court called to rule on a petition for recall of sentence is
empowered to make that determination, and the court “need only find the existence of a
disqualifying factor by a preponderance of the evidence.” (People v. Osuna, supra, 225
Cal.4th at p. 1040.)
       In conclusion, the resentencing provision of the Act is “intended to apply
exclusively to persons . . . whose sentence under this act would not have been an
indeterminate life sentence.” (§ 1170.126, subd. (a).) Thus, the basic premise of the Act
“is that an inmate who is serving an indeterminate life sentence under prior versions of
the ‘Three Strikes’ law (§§ 667, 1170.12), but whose convictions and related factual
findings would not have warranted such a sentence under the revised provisions of the
Three Strikes Reform Act passed by the voters, is eligible to seek a recall of that earlier
sentence.” (People v. Berry, supra, 235 Cal.App.4th at p. 1420.) Here, both the
sentencing court that presided at defendant’s trial and the court hearing his sentence
recall petition found that defendant was armed with a weapon in the commission of the
eavesdropping offense, a finding that is supported by substantial evidence.

                                              14
Consequently, defendant is ineligible for resentencing. We therefore affirm the order
denying defendant’s petition for a recall of his sentence.


                                      DISPOSITION
       The order denying the recall petition is affirmed.


               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                   BAKER, J.
We concur:




       TURNER, P.J.




       KRIEGLER, J.




                                             15
