P. v. Magallon

Filed 4/13/06 P. v. Magallon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 convicted Juan Magallon of transporting and possessing cocaine salt. He contends that the trial court prejudicially erred when--applying a legal standard later rejected by the United States Supreme Court--it concluded that he failed to establish a prima facie case of discrimination in jury selection. Because defendant failed to make the prima facie showing necessary to support his claim under the correct legal standard, we affirm the judgment.

I. BACKGROUND

Defendant was charged by information with one count of transporting cocaine salt (Health & Saf. Code, § 11352, subd. (a); count I), and one count of possession of cocaine salt for sale (Health & Saf. Code, § 11351; count II) in excess of 28.5 grams (Pen. Code, § 1203.073, subd. (b)(1)).

Jury trial began November 29, 2004. Because the sole issues raised on appeal concern jury selection, the facts can be briefly stated: A San Francisco police officer observed defendant leave an Oakland residence and get into a red Kia automobile. The officer had a search warrant for narcotics for the Kia and the residence. Defendant drove across the Bay Bridge and was stopped by police just off U.S. Highway 101. The officers seized a package concealed in the crotch area of defendant's pants that was later determined to contain 295 grams of cocaine salt with a street value of approximately $4,000 to $7,000.

Defendant testified on his own behalf. He worked as a day laborer. On the day of his arrest in San Francisco, he received a call asking him if he could do a job a 3:00 p.m., and he agreed. The person called back at 2:30 p.m. and asked defendant to meet him on High Street in Oakland to pick up a package and take the package to a gas station in San Francisco. The man offered to pay defendant $300 after the package was delivered. Defendant had not delivered any packages before this, and did not know that the package contained cocaine.

The jury convicted defendant of count I, acquitted him of count II, and found him guilty of count II's lesser offense of simple possession. (Health & Saf. Code, § 11350, subd. (a).)

The trial court sentenced defendant to four years in state prison: a midterm of four years on count I, and a midterm of two years on count II, which was stayed. Defendant timely appealed.

II. DISCUSSION

Defendant contends that the trial court prejudicially erred when it concluded that he failed to establish a prima facie case of discrimination in jury selection. He requests that the case be remanded for proper consideration of his discrimination claim.

A. Procedural Background

During jury selection, the prosecution exercised its second peremptory challenge to excuse Juror R. Defense counsel objected to the prosecutor's challenge, citing Batson-Wheeler.[1] The court excused the prospective jurors to hear defendant's Batson-Wheeler motion.

Defense counsel noted that Juror R. was a single mother from the Diamond Heights district who lived with her mother and worked for the Department of Parking and Traffic, and that her mother worked as a janitor before retiring. He stated that Juror R.'s car had been broken into numerous times and had been â€