P. v. Apodaca 10/8/03 CA6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H024797

Case Date: 12/23/2003

Preview:Filed 10/8/03 P. v. Apodaca CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SIXTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DELACRUZ APODACA, Defendant and Appellant. Defendant Joseph DeLaCruz Apodaca was found guilty at a court trial for failing to register as a sex offender within five days of his birthday. He was sentenced to 32 months in state prison. He appeals contending the court erred in finding that he willfully failed to register and in abusing its discretion by failing to strike the Three Strikes prior. FACTS About 11:00 a.m. on July 30, 2001, San Jose Police Officers Jaime Jimenez and Paul Guerra saw defendant in his wheelchair in the parking lot of a Super Mercado at Willow and Almaden Streets. They recognized defendant from a two-minute contact two days earlier, spoke to him, and discovered that defendant had a misdemeanor warrant outstanding and told defendant how to take care of it. Jimenez then drove away. Defendant had been cooperative at all times. As Jimenez was driving away, he received information that there was a possible parole violation and outstanding felony warrant for defendant's failure to report within 24 hours to his assigned parole officer. Jimenez H024797 (Santa Clara County Super. Ct. No. CC120278)

returned to defendant in the parking lot, obtained his social security number and confirmed an identifying scar. He arrested defendant. After the arrest, defendant stopped answering questions or responding to the officer. Parole agent Dane Segall testified that when she learned of defendant's arrest she went to the jail to serve a felony warrant she caused to be issued because defendant had failed to report within 24 hours of being released from county jail custody. On April 3, 2001, the Board of Prison Term had suspended defendant's parole effective January 30, 2001. When Segall arrived, defendant was refusing to speak to a nurse or cooperate with the booking process, although defendant asked to speak to Segall. Nevertheless, Segall announced that she was leaving. Defendant made eye contact with her and again stated that he wished to speak to her. Segall told defendant he had failed to take advantage of earlier opportunities to speak and left the jail. Segall testified she assumed defendant had received instructions from the Department of Corrections to report to his parole agent. As shown by defendant's registration records kept by the San Jose Police Department, defendant had registered 12 to 14 times. His most recent Penal Code section 2901 registration was dated April 5, 2000. On April 5, defendant had changed from resident to transient status. He was provided with a form meant for registrants who have trouble reading. It notified defendant of the duty to register and the various rules and provided lines for the registrant's initials by each item. The April 5 form did not show that defendant requested help completing it. A review of defendant's past completed forms showed that occasionally defendant requested and received assistance in completing the forms. On four to five occasions defendant completed registration updates. The records showed that defendant had registered as a transient two or three times. On March 24, 2000, defendant reported a change of address within the jurisdiction because he had just been released from a county
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Further statutory references are to the Penal Code unless otherwise stated.

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jail commitment. Previously defendant registered as a transient on May 27, 1999, and he received a sex offender registration receipt on June 4, 1999. On October 14, 1998, a registration form was completed with assistance and reported a different address from the one reported on a July 2, 1998 form. The first registration was on March 10, 1998. A check of the Violent Crime Information Network database showed that defendant had not registered with any other police agency since his April 5, 2000, registration with the San Jose Police Department. There was also a notification form dated February 20, 2001, three days before defendant's birthday, which was provided by the Santa Clara County Adult Probation Department. It did not indicate whether it had been filled out when defendant was in custody after violating his probation or if it had been filled out after he had been released. It was not a registration but it notified that he had a duty to register when he was released from jail. Dr. Michael Echols, an expert in assessing cognitive function, testified that on August 12, 1999, he administered a neurobehavioral cognitive status examination to defendant for county jail administration purposes. Echols found that defendant had "mild to moderate attention deficit impairment of short term memory." Echols scored defendant's verbal IQ at 73, his performance IQ at 79, and full scale IQ at 74. Echols believed that defendant was functioning at a "borderline intellectual" level. At that level, an individual would have "some difficulty in their day-to-day life understanding . . . what they read, . . . developing a plan, that sort of thing." Echols found a "severe impairment of delayed recall." Echols stated that while defendant suffered from some level of cognitive impairment, he was not developmentally disabled. Defendant had impairment of delayed recall, which equated to a high level of forgetting. Echols concluded that defendant was not mildly mentally retarded but that he suffered severe memory and cognitive impairment with capacity to briefly hold information. In his written report made at the time of testing, Echols noted defendant used a notebook to 3

remind himself of fundamental tasks. Echols had no personal knowledge of how defendant actually functioned in the community, nor did he have personal knowledge about defendant's understanding of sex offender registration laws. Defendant was found guilty of failing to register within five working days of his birthday (

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