People v. Escudero CA3

Filed 2/7/23 P. v. Escudero CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C095435

v. (Super. Ct. No. 19F3479)

DAVID ANTHONY ESCUDERO,

Defendant and Appellant.

In two trials, juries convicted defendant David Anthony Escudero of attempted murder, assault with a firearm, making a criminal threat, battery, possession of a firearm by a felon, and unlawful possession of ammunition. It was determined that the attempted murder was willful, deliberate, and premeditated, and that various firearm and great bodily injury enhancement allegations were true. In addition, the trial court found that defendant had a prior conviction for voluntary manslaughter, a strike offense and serious felony. The trial court sentenced defendant to an aggregate determinate prison term of 15 years consecutive to an aggregate indeterminate term of 39 years to life.

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Defendant now contends (1) the evidence is insufficient to support the finding of deliberation and premeditation, and (2) Senate Bill No. 567 (2021-2022 Reg. Sess.; Stats. 2021, ch. 731) (Senate Bill 567) requires remand for resentencing. We conclude the evidence is sufficient to support the challenged finding, and that remand for resentencing is appropriate. We will vacate the sentence, remand the matter for resentencing consistent with current law, and otherwise affirm the judgment. BACKGROUND In 2019, the victim went for a run and then finished his workout jumping rope in front of the Redding Library. He previously associated with Sureño gang members and had visible gang-related tattoos on his body. Defendant, who identified as a Norteño gang member, arrived at the library in a blue truck. He walked past the victim on his way into the library and then walked back out to confront him. Defendant called the victim a “scrap,” a derogatory term used by Norteños to refer to their Sureño counterparts (see People v. Martinez (2020) 55 Cal.App.5th 428, 437), and threatened to kill him, saying, “I’ll shoot you. I’ll stab you.” Defendant punched and kicked the victim, who repeatedly told defendant, “I don’t want no problems.” Defendant ended his assault when the library’s security guard came outside. Defendant yelled additional threats at the victim while walking back to the truck and then appeared to drive away. The security guard talked to the victim for a couple of minutes to make sure he was okay and then went back into the library. In fact, defendant had parked in the back parking lot. As the victim walked around the library in an effort to leave, he saw defendant coming towards him with a gun in his hand. Defendant got to within a few feet of the victim and fired a single round. The bullet struck the victim in the neck. Defendant returned to the truck and drove away.