A prior jury determination that appellant did not use a knife during the commission of a crime is not determinative for a finding of eligibility for Proposition 36 relief. In 2001, Cruz was convicted of false imprisonment by violence after he forced his way into a woman’s home, grabbed a knife, and tried to stab her in the stomach. Cruz then forced her to disrobe and lie down while he ran the kitchen knife between her legs. She escaped while Cruz was distracted. The jury convicted Cruz of false imprisonment by violence and misdemeanor assault. It acquitted Cruz of other offenses, including assault with a deadly weapon, and returned a not true finding that he had personally used a knife (Pen. Code, § 12022, subd. (b)(1)). Cruz admitted two prior strike convictions and was sentenced to 26.5 years to life. After the passage of Proposition 36, he filed a petition to recall his sentence, and the court denied the petition, finding that Cruz was ineligible for relief because he was armed with a deadly weapon during the commission of his offense. He appealed. Held: Affirmed. An inmate is ineligible for resentencing if he was armed with a deadly weapon during the commission of the commitment offense. (Pen. Code, § 1170.12, subd. (c)(2)(C)(iii).) It is the availability of and ready access to the weapon that constitutes arming. In ruling on a section 1170.126 petition for resentencing, a trial court is not limited to a consideration of the elements of the current offense and may examine relevant, reliable, admissible portions of the record of conviction to determine the existence of disqualifying factors. While the jury may have found that Cruz did not use the knife in the commission of the offense, the Court of Appeal distinguished “use” from being “armed with,” the latter of which “requires a temporal nexus between the arming and the underlying felony, not a facilitative one.” Cruz was armed with a knife when he held the knife and struggled with the woman while holding it. Additionally, the not guilty verdict on the assault with a deadly weapon count did not constitute a finding that Cruz was not armed.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B276571.PDF