P. v. Nai

Filed 5/4/06 P. v. Nai CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

I. INTRODUCTION

Defendant and appellant Sione Nai was convicted of unlawfully driving or taking a vehicle (Veh. Code, § 10851) and was found to have suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). On appeal, defendant raises a single issue: whether the trial court erred in permitting him to be transported to the courtroom in shackles, particularly when he was observed entering the courtroom on one occasion by prospective jury members. We conclude there was no error and affirm the conviction.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the summer of 2004, a Toyota van belonging to Cornell Hughes was reported missing. There was only one key to the van. This key was in the possession of John Wasson, who was the van's primary driver. The van, which was not driven often, was left unlocked, with the battery disconnected. The van's rear license place was stored under the carpet.

Four days after it was reported missing, the police stopped the van in Concord, California. Appellant was driving the van and there was one passenger. Neither appellant nor the single passenger could produce a key to the van.

The interior of the van was filled with garbage and other debris. None of these items belonged to the van's owner.

The van's ignition had visible pry marks and the hole for the key appeared to have been widened forcibly in order to jam in a tool which would start the van. When the police stopped defendant, the engine was running but there was no key in the ignition. The police also discovered in the van a black bag belonging to defendant that contained tools that could be used to forcibly start the van. Defendant did not have permission to drive the van.

Defendant, who was homeless and earned money by recycling and doing handyman jobs, testified that he neither stole the van nor knew it was stolen. The van had been loaned to him the day before he was pulled over by a woman named Debbie who was also homeless. He denied telling the police that he had borrowed the van three days before his arrest; a police officer with whom defendant spoke after his arrest testified that defendant told him he had borrowed the van three days earlier. Defendant testified that Debbie gave him the keys to the van and that he had seen no damage to its ignition or steering column. Defendant admitted that the tools in the black bag belonged to him.

Defendant also testified that he could not contact Debbie, or another witness, Mike, because he was in jail and did not have access to a telephone. Defendant also admitted that he was a convicted felon.

Before jury selection, defendant moved in limine for an order that would exclude any â€