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People v. Escudero CA3 ( 2023 )


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  • 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    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
    1
    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.
    2
    A witness said defendant did not look angry, he simply strolled up and shot the
    victim in the neck. The victim and the witness described defendant as being within arm’s
    reach of the victim when the shot was fired.
    Police arrested defendant at his apartment. Two firearms were found at the
    apartment, along with ammunition.
    DISCUSSION
    I
    Defendant contends the evidence was insufficient to support the finding of
    deliberation and premeditation.
    “Attempted murder requires the specific intent to kill and the commission of a
    direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee
    (2003) 
    31 Cal.4th 613
    , 623, superseded by statute as stated in People v. Rodriguez (2022)
    
    75 Cal.App.5th 816
    , 824.) “An attempted murder is premeditated and deliberate if it
    occurs ‘ “ ‘as the result of preexisting thought and reflection rather than unconsidered or
    rash impulse.’ ” ’ [Citations.] ‘ “In this context, ‘premeditated’ means ‘considered
    beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result
    of careful thought and weighing of considerations for and against the proposed course of
    action.’ ” ’ [Citation.] ‘The process of premeditation and deliberation does not require
    any extended period of time. [Citations.]” (People v. Cardenas (2020) 
    53 Cal.App.5th 102
    , 121.)
    “Review on appeal of the sufficiency of the evidence supporting the finding
    of premeditated and deliberate murder [or attempted murder] involves consideration
    of the evidence presented and all logical inferences from that evidence in light of the
    legal definition of premeditation and deliberation that was previously set forth.
    Settled principles of appellate review require us to review the entire record in the light
    most favorable to the judgment below to determine whether it discloses substantial
    evidence -- that is, evidence which is reasonable, credible, and of solid value -- from
    3
    which a reasonable trier of fact could find that the defendant premeditated and
    deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same
    in cases such as this where the People rely primarily on circumstantial evidence.
    [Citation.] ‘Although it is the duty of the jury to acquit a defendant if it finds that
    circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
    and the other innocence, it is the jury, not the appellate court which must be convinced of
    the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify
    the trier of fact’s findings, the opinion of the reviewing court that the circumstances
    might also be reasonably reconciled with a contrary finding does not warrant a reversal of
    the judgment.’ [Citation.]” (People v. Perez (1992) 
    2 Cal.4th 1117
    , 1124 (Perez).)
    In People v. Anderson (1968) 
    70 Cal.2d 15
     (Anderson), the California Supreme
    Court identified three basic categories of evidence that have been found sufficient to
    sustain a finding of premeditation and deliberation: planning activity, motive, and
    manner of killing. (Id. at pp. 26-27.) Later, in Perez, 
    supra,
     
    2 Cal.4th 1117
    , the
    California Supreme Court explained that “Anderson did not purport to establish an
    exhaustive list that would exclude all other types and combinations of evidence that could
    support a finding of premeditation.” (Id. at p. 1125.) The Court has since clarified that
    “the Anderson guidelines are descriptive, not normative. ‘The Anderson factors, while
    helpful for purposes of review, are not a sine qua non to finding first degree premeditated
    murder, nor are they exclusive.’ [Citation.]” (People v. Koontz (2002) 
    27 Cal.4th 1041
    ,
    1081; see People v. Hovarter (2008) 
    44 Cal.4th 983
    , 1019.)
    Defendant argues there is no evidence of planning activity. While there is no
    evidence defendant came to the library with a preconceived plan to murder the victim,
    there is sufficient evidence that he developed such a plan once he saw the victim.
    Defendant assaulted the victim, threatened to kill him (specifically saying that he would
    shoot the victim), parked nearby, armed himself with a loaded handgun, again
    approached the victim, and fired at the victim once in close proximity. There is also
    4
    evidence of motive (gang rivalry), and evidence of the calculated manner in which
    defendant attempted to take the victim’s life by approaching him calmly and silently.
    Viewed in its entirety, the evidence is sufficient to support the finding of
    premeditation and deliberation.
    II
    Defendant and the Attorney General agree that Senate Bill 567 applies
    retroactively to this case and requires remand for resentencing.
    Senate Bill 567, effective January 1, 2022, about a month after defendant was
    sentenced in this case, changed the requirements for using aggravating circumstances and
    altered sentencing discretion under Penal Code section 1170.1 (Stats. 2021, ch. 731.)
    Among other things, Senate Bill 567 amended section 1170 to prohibit upper-term
    sentencing unless factors in aggravation are stipulated to by the defendant, proven to a
    fact finder beyond a reasonable doubt, or established by a certified record of conviction.
    (§ 1170, subd. (b)(2), (3).) Senate Bill 567 also created a presumption in favor of the low
    prison term if defendant’s youth or psychological, physical, or childhood trauma
    contributed to the commission of the offense. (§ 1170, subd. (b)(6).)
    Here, the trial court imposed the upper term on count three (making a criminal
    threat) based on the following aggravating factors: “The crime involved a threat of great
    bodily harm disclosing a high degree of cruelty, viciousness or callousness; the manner in
    which the crime was carried out indicates planning or sophistication; the defendant has
    engaged in violent conduct that indicates a serious danger to society; [and] he has
    numerous prior convictions and has served a prior prison term.” The trial court also
    imposed the upper-term sentence of 10 years for the section 12022.5 subdivision (a)
    firearm enhancements attached to counts one and two (attempted murder and assault with
    1 Undesignated statutory references are to the Penal Code.
    5
    a firearm) for the same reasons, along with the finding that defendant was armed when he
    committed those crimes. The enhancement terms were stayed under sections 12022.53,
    subdivision (f) and 654.
    To the extent the trial court relied on aggravating circumstances other than
    defendant’s prior convictions, the facts underlying those circumstances were not
    established in a manner consistent with Senate Bill 567. And although the trial court also
    relied on defendant’s criminal record based on certified records of conviction, it is not
    clear how the trial court would exercise its sentencing discretion based on current law.
    Accordingly, we agree with the parties that remand for resentencing is appropriate.
    DISPOSITION
    Defendant’s sentence is vacated and the matter is remanded to the trial court for
    resentencing consistent with current law. The judgment is otherwise affirmed.
    Following resentencing, the trial court shall send an amended abstract of judgment, as
    appropriate, to the Department of Corrections and Rehabilitation.
    /S/
    MAURO, J.
    We concur:
    /S/
    ROBIE, Acting P. J.
    /S/
    HULL, J.
    6
    

Document Info

Docket Number: C095435

Filed Date: 2/7/2023

Precedential Status: Non-Precedential

Modified Date: 2/7/2023