Man gets more jail time in shooting

A Tucumcari man was sentenced to about 100 more days in the county jail and five years of probation after injuring two people with a shotgun blast last spring during a neighborhood spat.

District Judge Albert Mitchell Jr. also ordered Juan Rubio, 41, to complete an alcohol treatment program at the Four Winds Recovery Center in Farmington and anger-management classes. In total, Mitchell sentenced Rubio to six years of incarceration, with five of those suspended.

Rubio pleaded guilty to possession of a firearm by a felon and two counts of aggravated assault with a deadly weapon as part of a deal with prosecutors. Two counts of aggravated battery with a deadly weapon and one count of aggravated assault with a deadly weapon were dismissed.

Rubio, who has been incarcerated in the Quay County Detention Center since his arrest in early May, also must pay restitution, plus court fees and costs, and be subject to random searches by police for drugs and weapons after his release.

Mitchell said because Rubio was a felon, he could face up to nine years in prison if he violates the terms of his release.

According to police reports, two households on South Second Street in Tucumcari got into an argument about a loud motorcycle. The next night, an adult talked to Rubio about the situation. Rubio went back into his house, retrieved a shotgun and pointed it at four people outside. Rubio shot the weapon twice, one of which wounded Toby Apodaca and a 17-year-old boy in the legs. Rubio admitted he had been drinking.

Speaking to Rubio at the jail by videoconference, Mitchell said: “You realize if you called 911, this wouldn’t have happened, right?

“If the gun hadn’t been in your house, you would have been able to see your son,” Mitchell added, referring to Rubio’s infant child. “That is irreplaceable time.”

Mitchell also said the New Mexico Legislature during its current session likely will impose tougher crackdowns on felons with guns, including a possible minimum of eight years in prison.

Rubio apologized, saying he was being an overprotective parent.

“I shouldn’t have possessed a firearm, and I’m paying for that now,” he said. “I don’t want want to be in this situation again.”

Assistant district attorney Thomas Blakeney recommended two years in prison and 30 months of probation, though he acknowledged the deal was more open-ended and did not recommend an enhanced sentence despite Rubio’s criminal history of more than 20 years.

Rubio’s defense attorney, Roger Bargas of Tucumcari, argued for a more lenient sentence due to mitigating factors.

Bargas said Rubio’s wife Franchesca asked neighbors to keep down the noise after a loud motorcycle on the street awakened their 1-month-old child. He said Toby Apodaca, Marcie Chaney and two boys confronted Rubio and his wife with profanities that included threats to burn Rubio’s house as he and his family were sleeping and kicking down their front door to “blow them away.”

Bargas said Rubio discharged the shotgun once in the air and the second time on the ground, which sprayed dirt and rocks toward the Apodacas and caused their injuries. After one of the Apodacas wrestled Rubio to the ground, one threatened to kill Rubio, Bargas said, and another charged Rubio as police led him away in handcuffs.

Bargas said the Apodacas committed several crimes during the spat but were not charged. He said Toby Apodaca also has a violent criminal history and that Rubio was outnumbered and outsized.

Bargas said if Rubio hadn’t had a gun that night, “I submit he probably would have ended up in the hospital. And who knows what would have happened to his family?”

Toby Apodaca, who was part of the sentencing videoconference, disputed parts of Bargas’ argument.

He insisted he was trying to “mend things” during the confrontation about the loud motorcycle and wasn’t being mean.

“The anger got the best of him,” he said of Rubio. “As a result, my son and me got hurt.”

Mitchell also heard pleas for leniency from Rubio’s wife, father and parenting instructor.

Bargas said he also received letters praising Rubio’s character, including from three correctional officers. One resident recounted Rubio clearing snow off a sidewalk and refusing payment. Another said Rubio donated dinner boxes during the holidays. Bargas said the letters were among the most remarkable he’d received in his 47 years in the law profession.

“My impressions are consistent with all these letters,” Bargas said. “He was put in an untenable position through no fault of his own.”

Franchesca, through tearful testimony, said Rubio helped her cope with the death of her father and a miscarriage.

“Our baby needs his dad,” she said. “I want the chance to give us an opportunity to raise our son.”

Bargas said the Rubio family no longer feels comfortable in Tucumcari. He said they have put their house up for sale and will relocate.

“Unfortunately, I feel like we’re running a good family out of town,” Bargas said.