People v. Cruz

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.].)