Filed 10/3/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                                    2d Crim. No. B276571
                                             (Super. Ct. No. BA203503)
     Plaintiff and Respondent,                 (Los Angeles County)

v.

JUAN ALEXANDER CRUZ,

     Defendant and Appellant.



            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);
                                               1
People v. Estrada (2017) 3 Cal.5th 661, 665.) 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

        1
      All statutory references are to the Penal Code unless
otherwise stated.
“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. 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. 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.].)




                                 2
                       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.) 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.)
              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 having a firearm [or weapon] available for use, either
offensively or defensively. [Citations.]” (People v. Osuna (2014)




                                  3
225 Cal.App.4th 1020, 1029 (Osuna).) It is the availability of and
ready access to the weapon that constitutes arming. (People v.
Bland (1995) 10 Cal.4th 991, 997 (Bland); People v. White (2014)
223 Cal.App.4th 512, 524.) 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; People v. Blakely (2014) 225
Cal.App.4th 1042, 1063 (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.)
              Relying on People v. Guerrero (1988) 44 Cal.3d 343
(Guerrero), appellant argues that the court is limited to the facts
established by 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.) 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; accord, e.g., People v. Burnes




                                 4
(2015) 242 Cal.App.4th 1452, 1458; People v. Hicks (2014) 231
Cal.App.4th 275, 286 (Hicks); People v. Bradford (2014) 227
Cal.App.4th 1322, 1327.) 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.)
             Appellant’s reliance on People v. Wilson (2013) 219
Cal.App.4th 500 (Wilson) is misplaced. There, the court held
that, under Apprendi v. New Jersey (2000) 530 U.S. 466
(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.) Apprendi has no bearing on sentence reduction, and holds,
under the Sixth Amendment, “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
(Apprendi, at p. 490.) “Apprendi and its progeny do not apply to
a determination of eligibility for resentencing under the Act.”
(Osuna, supra, 225 Cal.App.4th at p. 1039; People v. Manning
(2014) 226 Cal.App.4th 1133, 1141, fn.3 [People v. Wilson
inapplicable to eligibility determination under section 1170.126].)
         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.)
“A defendant is armed if the defendant has the specified available
weapon for use, either offensively or defensively. [Citations.]”




                                 5
(Bland, supra, 10 Cal.4th at p. 997; Blakely, supra, 225
Cal.App.4th at p. 1051; Osuna, at p. 1029.) “‘[I]t is the
availability - the ready access - of the weapon that constitutes
arming.’ [Citation.]” (Bland, at p. 997.)
              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 purposes during the commission of the
false imprisonment. (Hicks, supra, 231 Cal.App.4th at p. 286
[substantial evidence standard applies]; Osuna, supra, 225
Cal.App.4th at p. 1040 [same].) We, accordingly, reject the
argument that the not guilty verdict on the ADW count
constitutes a finding that appellant was not armed during the
commission of the false imprisonment by violence.
                       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; People v. Brimmer
(2014) 230 Cal.App.4th 782, 794-795.) 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 temporal nexus between the arming and the
underlying felony, not a facilitative one.” (Osuna, supra, 225
Cal.App.4th at p. 1032; see People v. Elder (2014) 227




                                  6
Cal.App.4th 1308, 1312-1313 [noting “illogic” of conflating section
12202 enhancement provision with Proposition 36’s ineligibility
provision].)
               “‘[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.) As
explained in Osuna, supra, 225 Cal.App.4th at page 1032, 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.) 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. 3.)




                                 7
                             Disposition
           The judgment (order denying Proposition 36
resentencing relief) is affirmed.
           CERTIFID FOR PUBLICATION.



                                             YEGAN, J.

We concur:

             GILBERT, P. J.

             PERREN, J.




                              8
                    William C. Ryan, Judge

             Superior Court County of Los Angeles

                ______________________________

            Larry Pizarro, Staff Attorney, 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.
