People v. Escalante CA3

Filed 1/25/16 P. v. Escalante CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C078133

Plaintiff and Respondent, (Super. Ct. No. 13F07110)

v.

CARLOS ALFREDO ESCALANTE,

Defendant and Appellant.

Retained counsel for defendant Carlos Alfredo Escalante has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal.1 (People v. Wende (1979)

1 Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

1

25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case.2 (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.) In the afternoon of October 23, 2011, Jose Navarro and his girlfriend, Rosio Garcia, got into a fight with Heidi Escalante, defendant’s younger sister, at an apartment complex. Shortly thereafter, defendant’s girlfriend, Kassandra Gorman, and David Escalante, defendant’s younger brother, drove over to pick up Heidi from the apartment complex. David, who believed Navarro had hit Heidi, confronted him. Navarro said he had not hit Heidi and, after Heidi and Rosio Garcia again began fighting, David accepted Navarro’s explanation and left. As they were leaving, Gorman yelled it was “not over” and, “we are coming back.” Gorman also yelled “Norté Highlands” in reference to defendant’s gang. Later, at around 10:14 p.m., Navarro was shot and killed near the common area of the apartment complex. Witnesses believed the killer was a man wearing a black hoodie and dark pants. Eventually the investigation focused on defendant. Defendant, Gorman and Heidi said they were fishing in West Sacramento from approximately 7:00 the night of the shooting until after 1:30 a.m. the morning after shooting. Cell phone records and tower information for Gorman’s phone, however, put her in the vicinity of the shooting right after it happened. There were no cell phone records showing tower information in West Sacramento after 2:15 p.m. for the day of the shooting. Subsequent usage was in the