People v. Estrada CA5

Filed 5/6/22 P. v. Estrada 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F081367 Plaintiff and Respondent, (Super. Ct. No. F14905128) v.

VICTOR JAVIER ESTRADA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P. J., Franson, J. and Smith, J.

This matter is back before us after a prior appeal that resulted in a remand for resentencing in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill No. 620), which retroactively amended Penal Code section 12022.53, subdivision (h).1 Defendant Victor Javier Estrada now raises a claim of ineffective assistance of counsel with respect to the resentencing. We conclude his claim is not appropriate for resolution on direct appeal. Accordingly, we affirm. BACKGROUND The underlying facts of this matter are fully set forth in our prior opinion and we need not repeat them here. (See People v. Estrada (Jan. 16, 2018, F073329) [nonpub. opn.].) We will, however, outline the procedural history of the case for context. Estrada was charged by an information filed in the Fresno County Superior Court with one count of murder. (§ 187, subd. (a).) The murder charge was accompanied by a drive-by shooting special circumstance allegation under section 190.2, subdivision (a)(21) (i.e., that the murder was committed by shooting a gun from a motor vehicle with the intent to kill). The special circumstance allegation subjected Estrada to a sentence of life imprisonment without the possibility of parole (LWOP). A firearm enhancement allegation under section 12022.53, subdivision (d), for “personally and intentionally” discharging a firearm and proximately causing great bodily injury or death, was also attached to the murder charge. This enhancement requires imposition of an “additional and consecutive” term of 25 years to life, beyond the sentence for the underlying offense. A jury found Estrada guilty of first degree murder and found true both the special circumstance allegation as well as the firearm enhancement allegation. The court imposed a mandatory LWOP sentence for the special circumstance murder and a mandatory consecutive sentence of 25 years to life for the firearm enhancement.