(Super. Ct. No. 10F03956)
The opinion of the court was delivered by: Mauro , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant John Kevin Parker of possession of a firearm by a felon and obstructing or delaying a peace officer. Defendant admitted a prior serious felony conviction and three prior prison terms. The trial court denied his motion for a new trial and his motion to dismiss the prior strike conviction, and sentenced defendant to seven years in prison.
Defendant contends the trial court (1) erred in denying his motion for a new trial, and (2) abused its discretion in denying his motion to dismiss the prior strike conviction. Finding no error or abuse of discretion, we will affirm the judgment.*fn1
Sacramento Police Officer Alexander Giy made a traffic stop on a gray sedan with unlawfully tinted windows. The car stopped in front of a storage facility. Defendant, the right rear passenger, got out of the car while holding a gray object close to his body. Defendant ran from the officer and into a back alley. Officer Giy broadcast defendant's path of travel and responding officers took defendant into custody.
The gray object turned out to be a T-shirt and Officer Giy did not see defendant throw anything. Later that day, however, when Officer Giy reviewed the video from his patrol car camera, he observed that at one point during defendant's flight he slowed down and appeared to throw something. Giy returned to the scene and found a loaded .45-caliber handgun on the ground along defendant's path of travel. The gun had been placed there recently. The patrol car video was played for the jury.
The parties stipulated that defendant had a prior felony conviction and that no latent fingerprints were found on the handgun.
Defendant presented evidence that another person could have placed the gun where it was recovered. Erica Farley, an employee of the storage facility, testified that each day she sees people traveling in the area of defendant's flight. On cross-examination, Farley conceded that her view of the area from her office window is partially obstructed and that she could see only a small portion of the street defendant ran down. She said only a couple people per day use that street. But on redirect Farley said 20 to 30 cars may pass through the area during the late afternoon to early evening hours.
Additional facts are included in the discussion as relevant to defendant's contentions on appeal.
A jury convicted defendant of possession of a firearm by a convicted felon (Pen. Code,*fn2 former § 12021, subd. (a)(1)) and obstructing or delaying a peace officer (§ 148, subd. (a)(1)). Defendant admitted a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12) and having served three prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to seven years in prison.
Defendant contends the trial court erred in denying his motion for a new trial because the jury was "tainted."*fn3 He argues this occurred when the prosecutor's closing argument improperly shifted the burden of proof to the defense, and when an audio recording that had not been admitted into evidence was played during jury deliberations. Defendant claims the denial of his motion for a new trial violated his federal constitutional right to due process.