People v. Apodaca CA2/6

Filed 11/20/23 P. v. Apodaca CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B322180 (Super. Ct. No. 2021022675) Plaintiff and Respondent, (Ventura County)

v.

JAMES LEWIS APODACA,

Defendant and Appellant.

James Lewis Apodaca appeals a judgment following conviction of kidnapping with the intent to commit rape, second degree robbery, assault with a deadly weapon upon a police officer, exhibition of a deadly weapon to a police officer, and possession of methamphetamine, with findings of two prior felony strike convictions. (Pen. Code,1 §§ 209, subd. (b)(1), 211, 245, subd. (c), 417.8, 667, subds. (b)-(j), 1170.12, subds. (a)-(d); Health & Saf. Code, § 11377, subd. (a).) We modify the judgment to

1 All statutory references are to the Penal Code unless

otherwise stated.

reflect a total award of 393 days of presentence custody credit, but otherwise affirm. (People v. Koontz (2002) 27 Cal.4th 1041, 1094 [no errors found to cumulate].) FACTUAL AND PROCEDURAL HISTORY This appeal involves the kidnapping with the intent to rape of a young woman and the theft of her cell telephone. Apodaca shoved the woman into the trunk of his vehicle and drove several miles away. A sheriff’s deputy on routine patrol responded to the woman’s screams from the vehicle trunk and stopped the vehicle. When confronted by the deputy, Apodaca brandished a four-foot metal pipe or bar. On appeal, Apodaca raises arguments of substantial evidence and claimed errors regarding pornography evidence, self-defense jury instructions, and sentencing. We reject his arguments except for the award of additional presentence custody credit. In the late evening of August 28, 2021, 20-year-old T.W. rode her bicycle to a liquor store in Ojai to see a friend. At the same time, Apodaca drove to the liquor store and parked. Apodaca saw T.W. and asked if she wanted to smoke marijuana. She responded affirmatively and Apodaca invited her to sit inside his vehicle. T.W. declined but suggested that he drive to the parking lot behind the adjacent restaurant. She followed his vehicle with her bicycle. T.W. entered the front passenger seat of Apodaca’s vehicle, but kept the door open. Apodaca said he kept the marijuana under the lining in the vehicle’s trunk. They walked to the trunk to remove the lining. As T.W. was leaning into the trunk, using her telephone as a flashlight, Apodaca took her telephone, pushed her inside, and closed the trunk. He then played music loudly over her cries and drove away.