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People v. Appodaca6/23/2004
THE COURT
A jury convicted appellant, Ruben J. Appodaca, on one count each of being a felon in possession of a firearm (count I/Pen. Code, § 12021, subd. (a)(1)), possession of a sawed-off shotgun (count II/§ 12020. subd. (a)), possession of ammunition by a felon (count III/§ 12316, subd. (b)(1)), driving under the influence of alcohol or a controlled substance (count IV/Veh. Code, § 23152, subd. (a)), being under the influence of a controlled substance (count V/Health & Saf. Code, § 11550, subd. (a)), and driving without a license (count VI/Veh. Code, 12500, subd. (a)). In a separate proceeding, the court found true a prior prison term enhancement (§ 667.5, subd. (b)) and allegations that Appodaca's 1995 assault with a firearm conviction was a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). On August 25, 2003, the court sentenced Appodaca to an aggregate term of seven years as follows: the upper term of three years on count I, doubled to six years because of Appodaca's prior strike conviction, a one-year prior prison term enhancement and concurrent or stayed terms on the remaining counts. On appeal, Appodaca contends: 1) the court committed instructional error; and 2) he was denied the effective assistance of counsel at his sentencing hearing. We will affirm.
FACTS
The Trial
The prosecution evidence established that on May 15, 2003, at approximately 12:05 a.m. in Bakersfield, California, Highway Patrol Officers Bruce Adair and Jason Baker stopped a car driven by Appodaca with Cruz Escalera as a passenger because Escalera was not wearing a seat belt. As Officer Adair approached the car and looked inside, he noticed that Appodaca's hands were near his crotch, tucked under his legs, and moving.
Appodaca told Adair he did not have a license. After having Appodaca exit the car, Adair noticed that Apodaca's eyes were watery, his speech was slow, and he hesitated before answering questions. Appodaca admitted smoking methamphetamine four hours earlier. Adair then arrested Appodaca for being under the influence of a controlled substance and during an ensuing search found an expended 20-gauge shotgun shell in his left front shirt pocket. During a search of the car, the officers found an unexpended 20-gauge shotgun shell on the driver's seat and a used syringe between the driver's seat and the center console. Further, after the officers noticed some smoke coming from the engine compartment, a tow truck operator opened the engine compartment and found an unloaded sawed-off shotgun on the engine block.
At the Kern County jail, a breath test disclosed that Appodaca did not have any alcohol in his system. However, Appodaca had fresh puncture marks in the crooks of his arms, two inches of bruising on his left arm, and a white coating on his tongue. Additionally, Appodaca's nasal area was raw and irritated and he had a chemical odor on his breath. Officer Baker testified as an expert that Appodaca was under the influence of a controlled substance and that he could not have safely operated the car he was driving.
The defense did not present any evidence except to display Appodaca's arms to the jury to show that he did not have any puncture marks on them.
Appodaca's Probation Report and Sentencing
Appodaca's probation report indicates that he has a lengthy criminal record going back to December 1992, when he was adjudicated at the age of 15 for receiving stolen property. Appodaca was also adjudicated as a juvenile on two counts of exhibiting a deadly weapon (§ 417, subd. (a)(1)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)),
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