P. v. Tapia

Filed 4/4/06  P. v. Tapia CA5

Received for posting 2/13/07

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE COURT^*

            APPEAL from a judgment of the Superior Court of Tulare County.  Gerald F. Sevier, Judge.

James Fallman, 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, John G. McLean and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

            On October 4, 2004, appellant Alejandro Robles Tapia pled nolo contendere in case No. PCF129598 to possession for sale of methamphetamine (Health & Saf. Code, §  11379, subd. (a), count one), driving with a blood alcohol level of .08% or higher (Veh. Code, §  23152, subd. (b), count three), and driving with a suspended or revoked license (Veh. Code, §  14601.1, subd. (a), count four).  On November 9, 2004, a jury convicted Tapia in case No. VCF132057 of second degree robbery (Pen. Code, §  211, count one), corporal injury to a spouse or cohabitant (Pen. Code, §  273.5, subd. (a), count two), assault with a weapon likely to cause great bodily injury (Pen. Code, §  245, subd. (a), count three), misdemeanor vandalism (Pen. Code, §  594, subd. (a), count five), and a misdemeanor count of dissuading a witness from reporting a crime (Pen. Code, §  136.1, subd. (b)(1), count seven).^[1]

            On December 9, 2004, the trial court sentenced Tapia to prison for the low term of two years for assault with a deadly weapon plus one year consecutively for corporal injury to a spouse.  The court imposed concurrent terms of two years for the second degree robbery conviction and two years for possession for sale of methamphetamine.  Tapia's total prison term is three years.  The court imposed a restitution fine and granted applicable custody credits.

            On appeal, Tapia contends there was insufficient evidence to sustain his conviction for assault with a deadly weapon.  He further contends his trial counsel was ineffective for failing to move for acquittal and to sever unrelated counts.

FACTS

            On August 8, 2004, Fresno Police Officer Robert Gonzales responded to Tapia's residence on a report of domestic violence.  Gonzales arrived to find Tapia's wife, I. L., crying with her head in her hands hiding her face.  Gonzales could eventually see that

I. L. had a swollen eye, a swollen face, and bruises and cuts to the right side of her lower lip and chin.  I. L. reported that Tapia hit her at least five times.  Tapia's daughter, who was three at the time, told Gonzales that her daddy hit her mommy.

            According to I. L., an argument began when Tapia demanded $20 from I. L. and she refused to give it to him.  Tapia began hitting her, following her from room to room.  Tapia stopped hitting I. L. only when she agreed to give him $20.  When I. L. tried to call the police, Tapia pulled a phone out of the wall and fled before the police arrived.

            On August 11, 2004, D. K., who was 16 at the time, heard her dog barking in the backyard of her apartment.  When D. K. went to investigate, she found the dog barking at the back fence which adjoins the parking lot of the apartment complex. 

            Tapia was sitting in her neighbor's car, doing something.  D.K. and the owner of the vehicle, Lisa Mills, returned to the parking lot only to find the vehicle empty and the door wide open.  The ignition had been damaged and a number of tools were left on the front seat of the vehicle.

            D. K. and Mills saw Tapia across the street.  D.K. confronted Tapia, asking him why he was inside the car.  Tapia became agitated and replied, â€