P. v. Davi

Filed 3/29/06 P. v. Davi CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury found defendant Salvatore Davi guilty of possessing methamphetamine. (Health and Saf. Code, § 11377, subd. (a).) After defendant waived his right to a jury trial on prior convictions, the court found that he had suffered three prior convictions. The court also found that defendant had violated his probation. (Pen. Code, § 1203.3.) The court imposed a sentence of 90 days in county jail as a result of the probation violation, and later suspended imposition of sentence on the possession conviction, placing defendant on probation for three years.

Defendant appeals, contending that the court erred in denying his Batson/Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258). We affirm.

Facts

On September 11, 2003, at approximately 1:30 in the morning, two police officers noticed a vehicle with the driver's door open, in the parking lot of an apartment complex. Defendant was in the driver's seat. The officers asked for, and received, defendant's consent to be searched. Defendant began to empty items from his pockets, putting them on the car. At some point it looked as if defendant was trying to manipulate something inside his pocket. One of the officers stated that he was going to search defendant's pockets himself. Defendant then reached into his pocket, immediately pulled his hand out and threw something, underhand, into some nearby shrubbery. The officers asked defendant what he had thrown. He stated that he hadn't thrown anything. The officers handcuffed defendant, and began to look for the object defendant had thrown. After one officer was unable to find anything, defendant stated that he had thrown a ring, which he described as silver with a turquoise stone or stones. The officer looked again, and found a ring matching that description about five feet from defendant. The ring was in plain view. The other officer found a small glass vial in the shrubbery. Although there was moisture on the ground, and it was late at night, the vial had no moisture on it. Defendant stated that the ring was his, but the vial was not. When asked why he had thrown the ring, he stated he threw it because he was mad. The vial contained methamphetamine.

The prosecution's theory was that defendant stated that he had thrown a ring only after he noticed the ring on the ground. The defense theory was that the ring had come off defendant's hand as he gestured in anger, arguing that the prosecution could not establish beyond a reasonable doubt that defendant had thrown the vial of methamphetamine. The jury, finding that the prosecution had met its burden, found defendant guilty of possessing methamphetamine.

Discussion

Defendant contends that he was deprived of his constitutional right to a jury drawn from a representative cross-section of the community when the court denied his Batson/Wheeler motion.

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