P. v. Davis 10/26/11 CA2/4

State: California

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

Docket No: B229615

Case Date: 01/12/2012

Preview:Filed 10/26/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. ZACHARY EDWARD DAVIS, Defendant and Appellant.

B229615 (Los Angeles County Super. Ct. No. BA367204)

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara R. Johnson, Judge. Affirmed. John Raphling, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Zachary Edward Davis appeals his conviction for sale of a controlled substance and possession of a controlled substance. He argues there is insufficient evidence to support the jurys guilty verdict, and that the instructions provided to the jurors removed an element of the offense from their determination. We conclude there is sufficient evidence to support the conviction. We also conclude that, to the extent there was instructional error, that error was harmless. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY On December 31, 2009, members of the Los Angeles Police Department (LAPD) Gang Narcotics Division Buy Team conducted an undercover operation at a rave party held at the Los Angeles Coliseum. One of the undercover officers, Romeo Rubalcava, attempted to purchase from appellant the drug methylenedioxymethamphetamine (MDMA), commonly known as Ecstasy. After their initial encounter, Officer Rubalcava saw appellant walk to meet with another individual, Jeffrey Kiralla. After a brief meeting, appellant then returned to Officer Rubalcava and handed him two blue pills from a plastic container. Officer Rubalcava gave appellant $20 in exchange. Appellant was arrested. Kiralla also was arrested, and as officers approached him, he dropped a plastic bag containing 19 blue pills. The LAPD crime lab tested the two pills sold by appellant to Officer Rubalcava and a representative sample of the 19 pills recovered. The tests showed the pills contained MDMA. Appellant was charged with sale of a controlled substance (Health & Saf. Code,

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