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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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




2        We remind counsel that, despite the fact that he filed a brief pursuant to Wende, he
is still required to provide a summary of the facts with citations to the record. (Cal.
Rules of Court, rules 8.204.(a)(1)(C), 8.360(a).)

                                              2
vicinity of the apartment complex where the shooting took place. Heidi later admitted
that she and Gorman had not been fishing with defendant that night.
          There were also text messages from “Cookie” after 7:00 p.m. the night of the
shooting discussing how Rosio Garcia punched her in the eye, revenge was in order, and
Navarro was going to “get killed” because her big brother, a Norté, was going to “cap”
him. Heidi identifies herself as “Cookie.”
          There were several calls made from Gorman’s phone to defendant’s cousin, Eddy
Xiloj, after the shooting. When questioned, Xiloj told officers defendant called him
angry about how some guy beat up his sister and defendant wanted to “whoop his ass.”
At around 10:00 p.m., Xiloj drove defendant to an area near the subject apartment
complex where defendant, wearing black clothing, asked him to wait. Five minutes later,
Xiloj heard a gunshot, got scared and drove away. Defendant, Gorman, and Heidi began
calling Xiloj, yelling at him for leaving defendant. Xiloj stated that, after those calls, he
went to Gorman’s house, where defendant got angry and told him “ ‘Cause of you[,] I
could have done 25 in jail.’ ”
          A jury found defendant guilty of first degree murder with personal use of a
firearm. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) Sentencing was scheduled
for September 24, 2014, but was continued to permit the filing of a possible new trial
motion. Thereafter, retained counsel substituted in as attorney of record in place of the
public defender’s office and sentencing was continued again.
          On December 5, 2014, no new trial motion having been filed, the trial court
sentenced defendant to 25 years to life for murder and a consecutive 25 years to life for
the personal arming enhancement, for an aggregate term of 50 years to life in state prison.
The trial court also imposed various fines and fees, including $7,746.33 in victim
restitution and a $10,000 restitution fine, and awarded defendant 396 days of custody
credit.
          Defendant appeals.

                                               3
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment is affirmed.



                                                       NICHOLSON           , J.



We concur:



      BLEASE                , Acting P. J.



      HOCH                  , J.




                                             4
