People v. Estrada

Filed 12/23/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B260573

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA025008) v.

MARIO R. ESTRADA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Mario Estrada appeals from a post conviction order denying his petition for resentencing as a second-strike offender under Proposition 36, the Three Strikes Reform Act of 2012. (Pen. Code, § 1170.126.)1 The trial court denied the petition on the ground that defendant was armed with a firearm during the commission of his crime, an enumerated exclusion under Proposition 36, and thus he is not entitled to resentencing relief. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Defendant argues that he pled guilty only to grand theft person and that all firearm related charges were dismissed; thus the court erred in reviewing the reporter’s transcript of his preliminary hearing to make the finding that he was armed. We disagree and affirm.

FACTS

The critical facts occurred on three days over 20 years ago. Since defendant pled guilty, we take our facts primarily from the preliminary hearing. On April 9, 1995, defendant entered a Radio Shack store and approached the employee at the sales counter. As the employee began to ring up defendant’s purchase, defendant pulled out a gun and told the employee to hand over all of the money in the register. The employee handed defendant approximately $400 in a plastic bag and defendant left the store. On April 16, 1995, defendant entered the same Radio Shack and waited until all of the customers were gone. Then he approached the employee behind the counter and took out a gun. Defendant told the employee to open the register, and once it was open, defendant removed approximately $200. The employee also gave defendant some car speakers and a small television from the back room. After tying up the two employees in the store, defendant left through the back exit.