People v. Esquibel CA5

Filed 5/2/22 P. v. Esquibel CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081301 Plaintiff and Respondent, (Super. Ct. No. BF166694A) v.

ENRIQUE ESQUIBEL, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Kenneth Twisselman II, Judge. Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., Peña, J. and Snauffer, J.

Enrique Esquibel appeals from a resentencing hearing at which the trial court struck the prison priors, declined to strike the firearm enhancements, and adopted all other findings and orders from the original sentencing hearing. One of those findings was that counts 1 and 5 were not committed pursuant to one intent and objective, and thus consecutive sentences were appropriate. Esquibel now contends that the trial court abused its discretion by not reconsidering its prior findings as to counts 1 and 5 in light of People v. Roles (2020) 44 Cal.App.5th 935 (Roles). We agree with respondent that Roles is materially distinguishable, and the trial court properly declined to stay sentence on count 5. STATEMENT OF THE CASE Esquibel was convicted by jury in count 1, of kidnapping during the commission of a carjacking (Pen. Code, § 209.5)1; in count 2, of carjacking (§ 215, subd. (a))2; in count 3, of kidnapping (§ 207, subd. (a)); in count 4, of assault with a firearm (§ 245, subd. (b)); in count 5, of making criminal threats (§ 422); and in count 6, of being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury found true gang allegations as to counts 2, 4, 5, and 6 (§ 186.22, subd. (b)(1))3, and firearm use enhancements as to counts 1 through 5 (§ 12022.53, subds. (a), (b)). The trial court found true one prior strike conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced Esquibel to an indeterminate term of life, plus a determinate term of 26 years, as follows: on count 1, to life with the possibility of parole, plus 10 years for the section 12022.53, subdivision (b) enhancement, plus two years for