P. v. Mata 2/23/12 CA2/1

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State: California

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

Docket No: B226256

Case Date: 05/09/2012

Preview:Filed 2/23/12

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. FRANCIS MATA, Defendant and Appellant.

B226256 (Los Angeles County Super. Ct. No. BA366071)

APPEAL from a judgment of the Superior Court of Los Angeles County. Norman J. Shapiro, Judge. Reversed. Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent. _________________________________

Defendant Francis Mata appeals from the judgment entered following a jury trial in which he was convicted of possession of cocaine base and two misdemeanor counts of resisting an officer. Defendant contends the trial court erred by reseating a prospective juror improperly challenged by the prosecution instead of discharging the venire after it granted his motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). We agree because defendant neither waived nor consented to the jurors reseating. Accordingly, we reverse. BACKGROUND On the afternoon of December 21, 2009, Los Angeles Police Department narcotics officers conducted surveillance on San Julian Street between 6th and 7th Streets in downtown Los Angeles. Detective James Miller saw defendant walking on the sidewalk with Earl Early, who held cash in his hand. Early and defendant stopped next to Anthony Coleman. Miller testified he saw Coleman spit a plastic-wrapped item into his hand, remove a small white object from it, hand the object to Early, and take Earlys cash. Coleman walked away, and Early and defendant crouched near a fence. At Millers direction, other officers detained the three men. Coleman, who was tried with defendant, had $5 and six small rocks that together weighed 0.52 grams and contained cocaine base. Defendant had one rock that weighed 0.02 grams and contained cocaine base. Early threw down a glass smoking pipe and one rock that weighed 0.02 grams and contained cocaine base. At the police station, defendant expressed anger and refused to walk when two officers attempted to escort him to another area. He leaped up and backward, and his body struck one of the officers in the face. He continued to move after the officers tackled him and told them to release his handcuffs so he could fight them with his good hand. Coleman testified that he purchased the rocks of cocaine base on the afternoon of his arrest for personal use. He was a long-time, heavy user of cocaine base and intended to smoke all of the rocks he had in rapid succession. He did not provide Early or

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defendant with any cocaine base or take money from Early, but merely lent Early his smoking pipe. Coleman saw police officers knee defendant in the back and drag him at least 20 feet to the middle of the street. An officer threatened to do the same to Coleman if he did not turn and face the other way. The jury convicted defendant of possession of cocaine base and two misdemeanor counts of resisting an officer (Pen. Code,

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