P. v. Apodaca

Filed 2/21/07  P. v. Apodaca CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Merced County.  Frank Dougherty, Judge.

            Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Procedural summary

            Appellant Ricky Apodaca was convicted by jury trial of the first degree murder of Keith Gooding, with the special circumstance of robbery.  (Pen. Code,^[1] §§  187, 190.2, subd.  (a)(17)(A).)  The jury also found that Apodaca had intentionally and personally discharged a firearm in the commission of the murder (§  12022.53, subd.  (d)), had personally used a firearm in the commission of the murder (§  12022.5, subd.  (a)^[2]), and had committed the murder during the commission of a robbery (§§  211, subd.  (a), 212.5).  Apodaca was sentenced to life without parole for the murder, plus an additional consecutive 25-years-to-life term for the section  12022.53, subdivision  (d), enhancement, and an additional consecutive 10-year term for the section  12022.5, subdivision  (a), enhancement. 

Factual summary

            On the morning of July  16, 2003, at approximately 5:45 a.m., Keith Gooding drove his Silverado pickup truck to the 7-11 located on Loughborough Drive in Merced for coffee.  This was Gooding's normal daily routine.  After purchasing his coffee, Gooding would drive to his business, arriving at approximately 6:00 a.m. to open his shop.  On the same morning, Malcolm Person was clerking at the 7-11.  Person was familiar with Gooding, who was a regular customer.  Person also knew Apodaca by name and knew Apodaca's family.  The morning of July  16, Apodaca came into the store shortly after Gooding.  When Gooding was outside the store talking on his cell phone, Apodaca told Person that he was going to â€