PEOPLE v. VELASCO No. G042281.

THE PEOPLE, Plaintiff and Respondent, v. JOSE FELIPE VELASCO, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.
Filed January 27, 2011.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

ARONSON, J.

A jury convicted Jose Felipe Velasco of committing a lewd and lascivious act against a child under age 14 (Pen. Code, § 288, subd. (a); all further statutory references are to this code unless otherwise specified), similar conduct against a 14-year-old victim (§ 288, subd. (c)(1)), and eight counts of rape (§ 261, subd. (a)(2) [accomplished by force or duress]). Defendant also drew a punishment enhancement because his crimes involved more than one victim. (§ 667.61, subds. (b), (c) & (e).) Defendant asserts he was denied a fair jury selection process because a juror failed, until after voir dire, to disclose her knowledge of an analogous incident at her daughter's former school, where the juror had worked as an instructional aide. Defendant also argues the trial court violated his right to a fair trial with an impartial jury by failing to discharge the juror for bias. As we explain, there is no merit to defendant's contentions and we therefore affirm the judgment.

I

FACTUAL BACKGROUND

Defendant followed 14-year-old C.A. into the bathroom of his karate studio and raped her. He hurt her hand when she tried to resist and, afterwards, warned her not to say anything or he would hurt her parents. C.A.'s father had withdrawn after a knee injury from defendant's karate class, but he and his wife had grown to trust defendant, who sometimes picked C.A. up and took her to class. Defendant had tried to kiss her when she was 13 years old, but stopped when C.A. warned she would tell her parents. She came to believe "he's probably not a bad person" after he left her alone and had gained her parents' trust. Defendant sexually abused her approximately 20 times after the initial rape, often forcing her to have sex with him in his car. Defendant's wife, who claimed she was 15 when she married defendant, blamed C.A. when she found out about her husband's conduct. She confronted C.A. and told C.A.'s parents their daughter was a prostitute. C.A. denied she was in love with defendant. Defendant denied in interviews with a detective that he had engaged in forced or consensual sex with C.A.

Defendant impregnated another 14 year old at the studio, A.M., who had been taking karate lessons with defendant since she was 10 or 11. He offered to drive A.M. to class when her mother became ill, but instead drove A.M. to a parking structure, claiming they had to wait for someone there. After he began asking her questions of a sexual nature, he touched her and then proceeded to rape her, ignoring her pleas to stop. He warned her not to say anything because, while their actions were "normal" and "between me and you[,]" they both could go to jail; moreover, he threatened her that speaking out would destroy her family and no one would believe her anyway. Defendant had sex with A.M. against her will four or five more times in his car and at the studio. A.M. told her family about defendant's conduct when she learned she was pregnant.

II

DISCUSSION

Defendant contends Juror No. 112 tainted the jury selection process by failing to disclose during voir dire her knowledge of a similar incident, and the trial court's failure to discharge the juror after the information came to light violated his Sixth Amendment right to a fair trial with an impartial jury. The trial court, however, reasonably could conclude the juror was forthright in failing to recall or disclose the similar incident at voir dire, given the potential jurors knew only generically that defendant was charged with committing rape and lewd conduct against a child and did not know the instructor-student context of the offenses. In any event, the trial court reasonably could decline to discharge the juror for asserted bias or predisposition, based on the juror's acknowledgment she would decide the case on the evidence presented at trial and on the law as instructed by the trial court.

A. Procedural Background Related to Defendant's Challenge

Explaining that "[w]e'll get to the evidence later on[,]" the trial court informed the prospective jurors at voir dire that the charges against defendant consisted of a lewd act upon a child, a lewd act upon a child under age 14, and several counts of forcible rape involving two victims, plus an allegation that defendant committed the rape offenses against more than one victim. Later, the trial court advised the jury pool to alert him if "you or any member of your family or any close friends to your knowledge [have] ever been a complaining witness in a case similar to this one . . . . The case involves lewd act[s] against a child and charges of forcible rape." The trial court also inquired whether any of the prospective jurors or their close friends or relatives had been arrested or charged with similar offenses. The court asked the prospective jurors to consider whether there was "anything about the nature of the charges in this case which causes any of you to doubt whether you can give both sides a fair and impartial trial" and told them to notify the court, for discussion in private if necessary, if there was anything the court "ha[d not] mentioned that any of you think that you should volunteer that might in some way affect your ability to sit as a fair and impartial juror[.]"

Juror No. 112, an instructional aide for special education at a high school, volunteered that she had friends in the Los Angeles Police Department and Orange County and Los Angeles County Sheriffs' Offices, including an ex-brother-in-law, and that her sister was a dispatcher in Nevada. The sister had been "directly involved" in a similar case, assisting authorities in the search for a missing girl. When the trial court asked if "any of what you heard from other cases would affect your judgment in this one[,]" she affirmed, "I would hope not." The court probed whether she could perform "the jurors's job . . . to make their determination from the evidence from the witness stand and not based on what they know about some different case[,]" and Juror No. 112 answered, "Yes." Both defendant and the prosecutor accepted Juror No. 112, who was sworn as a juror and heard each side's opening statement later that day.

The next morning, after opening statements but before the first witness took the stand, Juror No. 112 alerted the trial court she had worked with a teacher at a middle school "who is presently serving his sentence for the same thing that went on here. I did not remember until this morning." The incident occurred after the juror no longer worked at the middle school; she could not recall the date exactly, but believed it was within the last 10 years. The juror's daughter had gone to the middle school and had taken a class or classes taught by the offender, but the juror's daughter had graduated from the school when the incident occurred, and there was never any question the daughter might have been a victim. The juror raised the prior incident with the trial court, wondering "I — I don't know if that will, you know, make me not a valuable jury member or . . . ."

When the trial court noted, "As I was saying before, the genius of a jury is that they can take a fresh look at the evidence and make a determination as to whether the crime occurred in this case[,]" the juror observed, "it's pretty much the same situation[,]" but agreed "that was a different case," stating, "I understand that." She let the court know "my thought this morning was why didn't [defendant] turn himself in like this teacher did. It just popped into my head, he could have turned himself in, avoided a trial. So I don't know that I can separate that now. I've remembered the situation." She "want[ed] to try to keep it totally separate[,]" stating, "I think I could, but you know, like I said, I don't know that it wouldn't influence me a bit." After the court explained "there may be things that remind you of the other case[]" and "[y]ou would need to say to yourself, all right[,]" "That didn't come from the witness stand[,]" That's not in evidence[,]" the juror responded, "True." She affirmed, "I feel that I could[,]" when the court asked, "Do you think that if I were to go through what's in evidence, and it would be the things the witnesses say, the exhibits admitted into evidence and anything else that the court tells you to consider as evidence, like stipulations of the parties, do you think that you could follow that instruction and consider only those things in making a decision on this case?"

The prosecutor asked the juror how she would vote if asked to do so "right now," and the juror responded, "Knowing your opening statements, I would have to say guilty[,]" but clarified she would have to hear all of the evidence before reaching her decision. For example, in response to a hypothetical the prosecutor posed in which "I didn't prove to you anything that I said in my opening statement[]" and "the girls come in" and admit "I made it all up[,]" the juror stated she would not find defendant guilty. She noted that in a health class for her special education students, a social worker had instructed the students that sex with a person five or more years younger constituted rape, but the juror agreed this did not constitute legal advice and it would be improper to apply the social worker's standard if it differed from the court's instructions. The juror explained she would scrutinize the evidence for duress, such as whether defendant unfairly used his position of authority. But she would not convict defendant of the charged offenses if the prosecutor did not prove beyond a reasonable doubt every element, which the trial court explained were "all the things the People are required to prove."

Defense counsel elicited from Juror No. 112 that the prior incident was a significant event in her career and a "very significant event" at her former school, where she and her former coworkers discussed feeling betrayed and disappointed. Counsel argued it was not credible that the juror remembered the event that morning rather than the previous day.

The trial court found the juror "was being sincere about simply remembering it this morning after the opening statements." The court observed, "This juror struck me as very sincere . . ." and, while "[t]here were some answers that she gave that caused me some concern," the trial court concluded, "[B]ut I think again, once the court explained to her that there would be instructions on all of the elements and that she would need to follow those instructions and the case would need to be prove[n] to[] her beyond a reasonable doubt, she indicated that she could do that, [and] I think that on the whole, she did indicate that she could follow the rules and instructions." Specifically, the court noted, "She also struck me as somebody who's very intelligent. This is not somebody who doesn't understand or who would have difficulty following instructions in general." Characterizing the issue as "not an easy situation," but nevertheless not "that close of a call either[,]" the trial court rejected defendant's request to excuse Juror No. 112.

B. The Trial Court Was Not Required to Excuse Juror No. 112

Defendant argues Juror No. 112's failure to disclose the prior incident during voir dire violated his Sixth Amendment right to a fair trial with an impartial jury by preventing him from using a peremptory challenge to excuse her, and the trial court erred by failing to correct the problem by excusing the juror for bias. "The denial of the right to reasonably exercise a peremptory challenge, be it by either the trial court or a juror through concealing material facts, is not a mere matter of procedure, but the deprivation of an absolute and substantial right historically designed as one of the chief safeguards of a defendant against an unlawful conviction." (People v. Diaz (1984) 152 Cal.App.3d 926, 933 (Diaz), italics added; but see People v. Jackson (1985) 168 Cal.App.3d 700, 706 (Jackson) [criticizing implied presumption in Diaz of juror misconduct arising from a juror's inadvertent concealment of facts].)

The difficulty here is that defendant does not identify questions he posed to Juror No. 112 or to the jury pool that might have jogged the juror's memory about the incident at her former school, such as discussing the context of the charges. The jurors knew only generically that defendant was charged with lewd conduct against a child and rape, and if defendant thought the trial court's question was too vague concerning whether the "nature of the charges" would prejudice any of the potential jurors, defendant had the opportunity to expand the inquiry during voir dire. (See McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 555 [reversal not required "simply to recreate the peremptory challenge process because counsel lacked an item of information" he could have obtained during voir dire].)

In any event, the issue is whether defendant's right to trial by an impartial jury was infringed. (U.S. Const., 6th Amend.) Section 1089 provides for the trial court to excuse jurors "unable to perform" their duties, which includes dismissal for bias. (See, e.g., People v. McPeters (1992) 2 Cal.4th 1148, 1175 (McPeters), superceded by statute and by Proposition 115 on another ground, as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) The juror's inability to perform his or her functions must be shown to a "demonstrable reality" in the record, and the reviewing court "`"will uphold the trial court's exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence."' [Citations.]" (People v. Martinez (2010) 47 Cal.4th 911, 943 (Martinez).) The presence of a biased juror is structural error, which requires a new trial regardless of prejudice. (Estrada v. Scribner (9th Cir. 2008) 512 F.3d 1227, 1240.) But bias is not presumed (Martinez, at p. 943) and, "[e]xcept where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination." (McPeters, at p. 1175.)

As our Supreme Court has explained, when reviewing "concealment of material information that may call into question the impartiality of the juror, we consider the actual bias test of . . . Jackson[, supra,] 168 Cal.App.3d [at p. 705], adopted by this court in . . . McPeters[, supra,] 2 Cal.4th [at p. 1175]. `Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional `concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty." [Citation.] [¶] Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court.'" (People v. San Nicolas (2004) 34 Cal.4th 614, 644.)

Here, there is no basis to second-guess the trial court's conclusion Juror No. 112's nondisclosure during voir dire was unintentional. It was for the trial court to evaluate her credibility and determine whether she honestly did not recall the prior incident until the next morning. As noted, merely reading the charges during voir dire would not necessarily cause a juror to recall a teacher-student incident that occurred 10 years earlier at her old school. And the juror's prompt disclosure is inconsistent with an intent to conceal. (See People v. Lenix (2008) 44 Cal.4th 602, 613-614 [reviewing court should defer to trial court's assessment whether "concealment" was intentional].)

Defendant asserts that even if Juror No. 112 unintentionally concealed the earlier incident, it nevertheless demonstrated bias because it "so closely and personally affected" her, "involving the teacher at the school where she [had] worked, a teacher who had taught the juror's own daughter no less." But she stated the incident, occurring some 10 years previously, had more significance for her professionally than personally, and the fact the juror did not recall the incident until the morning after opening statements supports the conclusion it did not persistently or presently affect her in a manner that would bias her judgment.

Defendant perceives demonstrable bias in Juror No. 112's statement questioning his failure to turn himself in as the teacher had, and her inclination to vote guilty after opening statements, absent any evidence. But the trial court reasonably could view these statements as initial reactions, given she later acknowledged she would follow the court's instructions and stated she would acquit defendant if the prosecutor failed to prove guilt beyond a reasonable doubt. The trial court reasonably could infer that, while she disclosed her initial reactions without hesitation, her acknowledgment defendant's case was different from the teacher's meant she recognized defendant did not turn himself in because he contested the charges, requiring a trial. Her disclosure of the incident before testimony and of her initial reactions supports the trial court's conclusion she was also honest when she agreed she would follow the court's instructions and base her decision only on the evidence. Substantial evidence supports the trial court's conclusion Juror No. 112 was impartial and would follow the court's instructions. In sum, we cannot say the trial court abused its discretion in declining to excuse Juror No. 112.

III

DISPOSITION

The judgment is affirmed.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

O'LEARY, J.


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